Ronald Jerry Frazier was charged with failure to renew his registration as a sex offender. At a bench trial, the facts were stipulated, including the following: Frazier was convicted of child molestation in 1988, sentenced to 20 years imprisonment, incarcerated beginning on August 18, 1989, and paroled on December 13, 1993. After revocation of his parole, Frazier was again incarcerated on November 20, 1997 and released in October 2003. He registered as a sex offender upon that release and in October of 2004 and 2005. However, he failed to renew his registration in 2006 or at any time thereafter. The sex offender registration law first became effective on July 1, 1996 and, in pertinent part, requires registration by any individual who “has previously been convicted of a criminal offense against a minor, as defined in OCGA § 42-1-12 a 9, and may be released from prison or placed on parole, supervised release, or probation on or after July 1, 1996 . . . .” OCGA § 42-1-12 e 3. After hearing the arguments of counsel, the trial court ruled that this portion of the statute is unambiguous and does not violate the state or federal constitutional prohibitions of ex post facto laws. The trial court also found Frazier guilty of the crime charged, entered judgment of conviction, and sentenced him pursuant to OCGA § 42-1-12 n 3 to the minimum term of ten years, with one year to be served and credit to be given for time served since his arrest. A motion for new trial was denied, and Frazier appeals. 1. Frazier contends that OCGA § 42-1-12 e 3, in conjunction with the criminal penalty provision in subsection n 3, violates the state and federal constitutional prohibitions of ex post facto laws.
In Smith v. Doe , 538 U. S. 84 123 SC 1140, 155 LE2d 164 2003, the Supreme Court of the United States held that a statutory requirement for retroactive registration of sex offenders was nonpunitive and did not itself constitute an ex post facto law. Frazier never argues that the registration requirement alone is unconstitutional, nor does he cite Smith , apply its analysis, or attempt to distinguish that case in any way. Instead, he relies on the penalty provision of OCGA § 42-1-12 and utilizes only the analysis set forth in Thompson v. State , 278 Ga. 394, 395 603 SE2d 233 2004 for determining whether a penal statute is an ex post facto law. Indeed, the fact that a violation of “the registration requirements leads to a harsh penalty is not pertinent to whether the registration requirements are additional punishment for the previously-committed sex offense. Cits.” State v. White , 590 SE2d 448, 457 III B 5 N.C. App. 2004. See also Smith v. Doe , supra at 101-102 II B. Accordingly, we will decide only the issue addressed by Frazier, which is whether the criminal penalty provided by OCGA § 42-1-12 n 3 for the failure to register as a sex offender as required by subsection e 3 constitutes an ex post facto law.To determine whether a penal statute is an ex post facto law, we employ a three-step analysis: First, we ask whether the law applies retrospectively. Cit. If it does not, our inquiry is at an end. Cit. If it does, we look to see if the law is punitive or regulatory. Cit. If it is punitive, the statute is an ex post facto law. Cit. If it is regulatory, we examine the statute’s effect. Cit. If the effect of the statute is punitive, the statute is deemed ex post facto —even if the statute was intended to be regulatory. Cit. But, again, if the statute is not retrospective we need not determine whether it is punitive. . . . A penal statute is retrospective if it alters the consequences for crimes committed prior to its enactment. Cit.Thompson v. State , supra at 395-396. “In determining whether a statute is being applied in an ex post facto manner, the definitive time period to be considered is the date on which the criminal offense was committed.” Landers v. State , 250 Ga. 501, 504 4 299 SE2d 707 1983. In Landers , this Court held that, with regard to the statute punishing possession of a firearm by a convicted felon, “the applicable date is the date of the offense of possession, not the date of the previous felony conviction.” Ledesma v. State , 251 Ga. 487, 489 4 306 SE2d 629 1983. Under that statute, the defendant’s punishment for the underlying “conviction was not increased; he was convicted of a new offense, one element of which was his earlier felony conviction.” Landers v. State , supra. This rationale applies to OCGA § 42-1-12 n despite Frazier’s argument that, unlike the statute in Thompson , OCGA § 42-1-12 adds an affirmative burden of registering as a sex offender. State v. Armbrust , 59 P3d 1000, 1002 Kan. 2002.
