Kennedy v. Carlton , 294 Ga. 576 ( 2014 )

FINAL COPY
294 Ga. 576S13A1717. KENNEDY v. CARLTON.
HINES, Presiding Justice.
This is an appeal by the Warden from the superior court’s grant of habeas
corpus relief to criminal defendant Lewis Alan Carlton, based upon the court’s
determination that OCGA § 16-10-23, which criminalizes impersonating an
individual serving in a public capacity, is constitutionally defective as vague and
ambiguous. For the reasons that follow, we reverse.
On April 5, 2012, Carlton made several telephone calls to neighbors of the
foster mother of Carlton’s three children. Representing himself as an employee
with the Georgia Department of Family and Children Services (“DFCS”),
Carlton questioned the neighbors regarding the foster mother’s treatment of his
children. Neighbors brought the foster mother over to listen in on a
conversation with Carlton, at which point the foster mother identified the caller
as Carlton and telephoned the police.
Carlton was indicted on thirteen separate counts; however, orders of nolle
prosequi were entered on ten of the counts as part of a negotiated plea
agreement. The remaining three counts each charged Carlton with violation of
OCGA § 16-10-23 by “impersonation of public employee.” On October 11,
2012, Carlton appeared in superior court, ostensibly ready to enter an Alford1
plea on the impersonation counts. However, Carlton then backed out of the plea
deal and decided to take his case to trial. The next day, the parties had lengthy
argument as to the constitutionality of the impersonation statute as applied to
Carlton. Shortly thereafter, Carlton requested the same plea deal that previously
had been offered. The parties then returned to superior court on October 15,
2012, and Carlton entered an Alford plea to all three impersonation counts. At
the October 15 hearing, Carlton repeatedly expressed to the superior court his
concern and understanding that he would retain the right to attack the statute’s
legality, stating, “I want to be very clear that I’m not waiving away my right to
the habeas corpus to challenge the OCGA § 16-10-23, impersonating a public
officer.”
Carlton then petitioned the superior court in the county in which he was
incarcerated for a writ of habeas corpus, initially asserting ineffective assistance
of counsel and violation of his right to due process for being convicted of three
1
North Carolina v. Alford, 400 U. S. 25 (91 SCt 160, 27 LE2d 162) (1970).
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counts of an indictment which failed to establish a crime. However, he amended
his petition so that what remained for the habeas court’s consideration was a due
process argument and his challenge to OCGA § 16-10-23.
In a June 11, 2013 order, the habeas court granted Carlton’s petition for
writ of habeas corpus, ruling that OCGA § 16-10-23 failed to adequately hold
itself out as applicable to public employees as opposed to public officers, and
thus, the statute “did not provide [Carlton] with the appropriate notice that he
could be criminally responsible for impersonating a Department of Family and
Children Services Employee.”
1. As a threshold matter, contrary to the contention of the Warden,
Carlton has not waived his challenge to OCGA § 16-10-23. Carlton made the
challenge prior to the entry of his pleas, and expressly attempted to reserve it
following his pleas. Compare Kolokouris v. State, 271 Ga. 597 (523 SE2d 311)
(1999). Moreover, the gravamen of Carlton’s challenge is that inasmuch as
OCGA § 16-10-23 failed to adequately give notice that his conduct was
criminal, the statute is fatally flawed, and the counts in his indictment, to which
he pled, failed to charge him with any crime. A plea of guilty does not waive
the defense that an indictment charges no crime. Smith v. Hardrick, 266 Ga. 54,
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56 (3) (464 SE2d 198) (1995).
2. The gravamen of Carlton’s challenge on habeas corpus was that the
indictment did not charge him with a crime as it only criminalizes impersonating
an “officer,” while he impersonated an “employee.” However, the Warden is
correct that the habeas court erred in finding that OCGA § 16-10-23 is vague
and ambiguous in this regard. OCGA § 16-10-23, which is captioned
“Impersonating a public officer or employee,” consists of a single sentence:
A person who falsely holds himself out as a peace officer or
other public officer or employee with intent to mislead another into
believing that he is actually such officer commits the offense of
impersonating an officer and, upon conviction thereof, shall be
punished by a fine of not more than $1,000.00 or by imprisonment
for not less than one nor more than five years, or both.
(Emphasis supplied.) Thus, the statute forthrightly and plainly states that it
applies to public employees, as well as peace and other public officers. The fact
that the remainder of the sentence does not expressly again recite “employee”
does not negate the clear and express legislative mandate.
Moreover, even assuming arguendo that the fact that the term “employee”
is not renamed in the close of the sentence renders the statute ambiguous in this
regard, the fundamental rules of statutory construction compel the conclusion
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that the prohibition of the statute applies to impersonation of public employees.
A statute, including one criminalizing conduct, is to be construed
according to its terms, giving those terms their plain and ordinary meaning, and
avoiding a statutory construction that will render some of the statutory language
mere surplusage; in considering the appropriate construction, this Court must
seek to effectuate the intent of the General Assembly. Doe v. State, 290 Ga.
667, 668 (725 SE2d 234) (2012). This statute explicitly states that it applies to
impersonation of a “public officer or employee.” If the General Assembly did
not intend that the reach of the statute extend to impersonation of public
employees, then the express use of the word “employee” in the statute would
constitute “mere surplusage.”
Furthermore, the obvious intent and purpose of the General Assembly in
enacting the statute is to protect the people of this State from intimidation and
other potential abuses and dangers at the hands of an individual misrepresenting
himself or herself as one cloaked with the authority and power which may attend
public office or employment. The circumstances of this case, involving the
welfare of minor children, well illustrate the potential perils of permitting one
to falsely represent employment by a governmental agency to further a personal
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agenda.
A criminal statute is not unconstitutionally vague if its terms furnish those
of common intelligence who come in contact with it a test with normal criteria
which may be used with reasonable safety by a person to determine the statute’s
command; in this regard, due process requires only that the law give sufficient
warning so that individuals are able to avoid the conduct which is forbidden.
Dunn v. State, 286 Ga. 238, 241 (1) (686 SE2d 772) (2009). Indeed, if the
phrase in a statute challenged as vague has a commonly understood meaning, it
is sufficiently definite to satisfy due process concerns. Id.OCGA § 16-10-23 specifies that it is a crime for an individual to falsely
hold himself or herself out as a public employee, with the intent to mislead
another into believing that he or she is actually such person. It commands to a
person of common intelligence that he or she refrain from such conduct. The
statute provided Carlton with appropriate notice that his actions would constitute
a violation of the law. Thus, the habeas court erred in determining that the
statute failed to provide Carlton with sufficient notice that he could be
criminally responsible for impersonating a DFCS employee. Consequently, the
judgment of the habeas court cannot stand.
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Judgment reversed. All the Justices concur.
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Decided February 24, 2014.
Habeas corpus. Chatham Superior Court. Before Judge Morse.
Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy
Attorney General, Paula K. Smith, Senior Assistant Attorney General, Andrew
G. Sims, Assistant Attorney General, for appellant.
Zell & Zell, Rodney S. Zell, for appellee.
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