In October 1998, Torrey Hill was tried by a Houston County jury upon an indictment that charged Hill with several crimes, including the forcible rape of A. G., who was fourteen years of age at the time of the alleged crimes. Although the indictment did not expressly charge Hill with the statutory rape of A. G., the trial court instructed the jury — at the request of the State, and over Hill’s objection — that it could find Hill guilty of statutory rape as a lesser offense included in the crime of the forcible rape of A. G. The jury did just that, finding Hill not guilty of forcible rape, but guilty of the statutory rape of A. G., as well as a number of other crimes. Hill appealed, and he argued, among other things, that statutory rape is not included in forcible rape and that the trial court, therefore, erred when it instructed the jury about statutory rape as a lesser included offense. In Hill v. State, 295 Ga. App. 360 671 SE2d 853 2008, the Court of Appeals affirmed his convictions, reasoning that statutory rape sometimes may be included in forcible rape as a matter of fact, even if it is not always so included as a matter of law. See 295 Ga. App. at 363-364 2.
Four years later, in Stuart v. State, 318 Ga. App. 839 734 SE2d 814 2012, the Court of Appeals reconsidered and decided that statutory rape is never included in forcible rape, overruling Hill as a precedent along the way. See 318 Ga. App. at 841-842. Within a few weeks of the decision in Stuart, Hill filed a pro se petition for a writ of habeas corpus, and in the habeas proceedings that followed, Hill claimed that his conviction for the statutory rape of A. G. not only reflected a misapplication of the state statutory law concerning the extent to which one crime is included in another, but also worked a denial of the due process to which he was entitled as a matter of constitutional law. In support of this claim, Hill argued that he was deprived at the time of his trial of fair notice that he could be convicted of the statutory rape of A. G. because his indictment did not expressly charge him with that crime and — as shown by Stuart — the statutory rape could not be included in the forcible rape of A. G. with which he was expressly charged. Hill further argued that he was prejudiced as a result, being unable to adjust his defense to meet a charge of which he had no notice. The habeas court denied the petition, and Hill appeals. For the reasons that follow, we affirm.1
