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Widner v. State

Burchette v. State, 278 Ga. 1 2004, disapproving Allen charges such as the one give in this case, postdated defendant's trial and was not retroactive.

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Viewed in the light most favorable to the verdict, the record shows that, on December 29, 2002, Joshua Ray Widner, who was eighteen years old at the time, admittedly engaged in acts of oral sex and sexual intercourse with a fourteen-year-old girl. Based on this conduct, Widner was convicted of two counts of aggravated child molestation and one count of statutory rape. Widner now appeals, contending, among other things, that his mandatory sentence of ten years without the possibility of parole for aggravated child molestation based on an act of sodomy constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and the comparable Georgia constitutional provision, Art. I, Sec. I, Par. XVII.1 For the reasons set forth below, we affirm.

1. Widner contends that his mandatory sentence for aggravated child molestation of ten years without parole pursuant to OCGA § 16-6-4 d 1 and OCGA § 17-10-6.1 constitutes cruel and unusual punishment as applied to him. In essence, Widner contends that his crime should be given special treatment and excepted from the mandated punishment because he was 18 at the time of the act and the victim was only four years younger. The law at the time of the commission of the crime, however, provides no such exception, and, because the required punishment does not unconstitutionally shock the conscience, Widner’s sentence must stand.

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