In the Supreme Court of Georgia

Decided: November 2, 2023

S23A0686. REGAN v. THE STATE.

 COLVIN, Justice.

Appellant Cody Allen Regan appeals his sentence of 20 years 

in prison, with one year to serve, for one count of felony child 

molestation, following his non-negotiated guilty plea.1 On appeal,

1 The crime occurred on May 28, 2017. On September 8, 2017, a Newton 

County grand jury indicted Appellant for one count of child molestation in 

violation of OCGA § 16-6-4 (a). On June 28, 2018, Appellant entered a guilty 

plea without a plea agreement and filed a motion in arrest of judgment

challenging in part the constitutionality of the child molestation statute as 

applied to him. On April 30, 2019, the trial court denied his motion in a threepage order that did not address the constitutional claim raised in the motion. 

On May 14, 2019, Appellant was sentenced to a term of 20 years in prison, with 

one year to serve.

Appellant timely filed a notice of appeal directed to the Court of Appeals 

on June 5, 2019, and subsequently amended it twice to direct his appeal to this 

Court. We transferred the case to the Court of Appeals, which vacated the trial 

court’s order denying Appellant’s motion in arrest of judgment and directed the 

trial court to rule on Appellant’s constitutional claims. See Regan v. State, 361 

Ga. App. 156, 158 (863 SE2d 527) (2021). On remand, the trial court again 

denied Appellant’s motion in arrest of judgment in an order dated May 4, 2022. 

On May 24, 2022, following a hearing, the trial court reimposed Appellant’s 

original felony sentence. Appellant filed a timely notice of appeal directed to 
2

Appellant argues that he improperly received a felony sentence for 

child molestation, in violation of his rights to equal protection under 

the United States and Georgia Constitutions, because he is similarly 

situated to people receiving misdemeanor sentences for aggravated

child molestation. Appellant also argues that his sentence

constitutes cruel and unusual punishment, in violation of the United 

States and Georgia Constitutions, because his sentence is grossly 

disproportionate to his crime.

For the reasons that follow, we hold that the sentencing 

scheme for child molestation set out at OCGA § 16-6-4 (b), as 

applied to Appellant, violated his right to equal protection under the 

Fourteenth Amendment to the United States Constitution.2 These

this Court. The case was assigned to our April 2023 term and submitted for a 

decision on the briefs.

2 We decline to consider Appellant’s equal-protection claim under the 

Georgia Constitution because neither the parties nor the trial court 

distinguished Appellant’s federal equal-protection claim from his state equalprotection claim and because Appellant does not argue that the federal Equal 

Protection Clause should be construed differently than the Georgia Equal 

Protection Clause. See Harvey v. Merchan, 311 Ga. 811, 825 n.13 (4) (b) (860 

SE2d 561) (2021) (declining to consider the defendant’s federal and state equalprotection claims separately where neither the defendant nor the trial court 

below distinguished between those claims).
3

sentencing provisions provide for a misdemeanor sentence where 

the victim is at least 14 years old (among other conditions), but the 

misdemeanor sentencing provisions for aggravated child 

molestation provide for a misdemeanor sentence where the victim is 

at least 13 years old. Compare OCGA § 16-6-4 (b) (2), with 

16-6-4 (d) (2). Because the victim in this case was 13 years old, 

Appellant did not qualify for the misdemeanor sentence he would 

have received if he had instead committed aggravated child 

molestation. See id. at (b) (2), (d) (2). There is no rational basis for 

such disparate treatment. We therefore reverse the trial court’s 

order denying Appellant’s motion in arrest of judgment, vacate 

Appellant’s sentence, and remand the case for Appellant to be 

resentenced for misdemeanor child molestation under OCGA 

§ 16-6-4 (b) (2). Because we resolve Appellant’s challenges to his 

sentence on federal equal-protection grounds, we do not reach his 

cruel-and-unusual-punishment claims.

1. The facts in this case are uncontested. At the time of the 

crime, Appellant was 17 years old, and less than four years older 
4

than his 13-year-old stepsister, A. M. In the early morning hours of 

May 28, 2017, Appellant entered the family living room, where he 

found A. M. asleep on the couch. Appellant then put his penis in 

A. M.’s hand. When A. M. awoke, Appellant covered himself and 

went back to his room. A. M. then reported this incident to her 

mother (Appellant’s stepmother). Appellant admitted to his 

stepmother what he had done to his stepsister, and law enforcement 

officers were contacted.

2. As an initial matter, the State argues that Appellant failed 

to properly preserve his constitutional challenges for review because 

he abandoned his equal-protection claims and waived his cruel-andunusual punishment claims in the trial court. We disagree with 

respect to Appellant’s federal equal-protection claim, and we do not 

consider whether Appellant’s other constitutional claims were 

properly preserved because, as explained above, we do not reach the 

merits of those claims.

A constitutional challenge to a sentencing statute is timely if it 

was made at the first opportunity. See Woods v. State, 279 Ga. 28, 
5

29 (1) (608 SE2d 631) (2005) (holding defendant’s constitutional 

challenge to a sentencing statute, which was raised after the verdict 

but prior to sentencing, was “made at the first opportunity and, 

therefore, was timely.” (citation and punctuation omitted)). Because 

a challenge to a sentencing statute may not ripen until after the jury 

returns a guilty verdict or after the defendant enters a guilty plea, 

such a challenge “should normally be made no later than the 

sentencing hearing, at a time when corrective action is still 

possible.” Jones v. State, 290 Ga. 670, 674 (3) (725 SE2d 236) (2012) 

(citation and punctuation omitted).

On the same day that Appellant entered his non-negotiated 

guilty plea, he filed a motion that expressly argued that his sentence 

violated the Equal Protection Clause of the Fourteenth Amendment. 

Though his concurrently filed brief did not cite the federal Equal 

Protection Clause or related decisional law, Appellant argued that 

the statutory sentencing scheme, see OCGA § 16-6-4 (b) (2), (d) (2)

was “incongruous” and unfair, and that “[f]ailing to arrest judgment 

would result in an impermissible constitutional harm.” Moreover, 
6

Appellant amply supported his federal equal-protection claim in his 

supplemental briefing to the trial court prior to re-sentencing, and 

the State was given adequate notice and opportunity to respond, 

which it did. See Woods, 279 Ga. at 29 (1) (noting that the 

defendant’s constitutional challenge to his sentence, which occurred 

after the verdict but before sentencing, allowed time for “corrective 

action” and gave the State “adequate advance notice of the motion 

and the basis for the constitutional attack . . . .”). Appellant’s 

federal equal-protection claim is also supported by argument and 

citations to authority in his briefing before this Court. We therefore 

conclude that Appellant’s federal equal-protection claim was timely 

raised and properly preserved for our review.

Relying on Sulejman v. Marinello, 217 Ga. App. 319, 320 (1) 

(457 SE2d 251) (1995), the State argues that Appellant abandoned 

his federal equal-protection claim by failing to support it with 

argument and citations to the Constitution and related equalprotection case law in his initial briefing before the trial court, which 

was filed at the time of his guilty plea. Sulejman, however, is a 
7

Court of Appeals case that concerns the appellants’ failure to 

support one of their enumerations of error in their appellate briefing, 

in violation of Court of Appeals Rule 15 (c) (2). See Sulejman, 217 

Ga. App. at 320 (1) (citation and punctuation omitted). That rule

did not apply in the trial court, which is instead governed by the 

Uniform Superior Court Rules, and those rules do not include an 

analogous provision. Further, as noted above, Appellant’s initial 

brief-in-support before the trial court elaborates upon the 

constitutional argument expressly raised in his concurrent motion, 

albeit obliquely. The State’s preservation argument therefore fails.

3. Having determined that we can review Appellant’s federal 

equal-protection claim, we now turn to the merits of Appellant’s 

equal-protection arguments. Appellant contends that he was 

subject to a felony sentence for child molestation even though he is 

similarly situated to certain defendants who receive only a 

misdemeanor sentence for aggravated child molestation. Appellant 

further argues that there is no rational basis for this discrepancy in 

the sentencing scheme. Accordingly, he argues that his equal
8

protection rights were violated when he was not sentenced as a 

defendant would be under OCGA § 16-6-4 (b) (2). For the reasons 

that follow, we agree.

(a) OCGA § 16-6-4 defines both child molestation and 

aggravated child molestation. As relevant here, child molestation 

occurs when “[a] person . . . [d]oes an immoral or indecent act to . . . 

any child under the age of 16 years with the intent to arouse or 

satisfy the sexual desires of . . . the person.” OCGA § 16-6-4 (a) (1). 

The Criminal Code defines aggravated child molestation as an act of 

child molestation which also “physically injures the child or involves 

an act of sodomy.” OCGA § 16-6-4 (c). Sodomy, in turn, occurs when 

a person “performs or submits to any sexual act involving the sex 

organs of one person and the mouth or anus of another.” OCGA 

§ 16-6-2 (a) (1). Persons convicted of aggravated child molestation 

have, by definition, also committed the offense of simple child 

molestation. See Dixon v. State, 278 Ga. 4, 7 (2) (596 SE2d 147) 

(2004) (“[S]imple child molestation is a necessary element of 

aggravated child molestation, so . . . the State cannot reach 
9

aggravated child molestation without first proving that [the 

defendant] is guilty of simple child molestation.” (citation and 

punctuation omitted)).

Generally, a first offense of child molestation is punishable by 

imprisonment for a term of five to 20 years, whereas a first offense 

of aggravated child molestation is punishable by either 

imprisonment for life or by imprisonment for a term of at least 25 

years followed by probation for life. Compare OCGA § 16-6-4 (b) (1),

with OCGA § 16-6-4 (d) (1).

These felony sentences do not apply, however, in certain cases

where the offender is 18 years of age or younger and the additional 

conditions set forth in the applicable misdemeanor sentencing 

provisions are met. OCGA § 16-6-4 (b) (2), (d) (2). Specifically, the 

misdemeanor sentencing provisions for child molestation apply 

when the victim is at least 14 years old, the defendant is 18 years of 

age or younger, and the defendant is no more than four years older 

than the victim. See OCGA § 16-6-4 (b) (2). The misdemeanor 

sentencing provisions for aggravated child molestation are similar 
10

but contain two key differences: they apply when the victim is at 

least 13 years old — rather than 14 years old — and the “basis of 

the charge . . . involves an act of sodomy.” OCGA § 16-6-4 (d) (2) (A), 

(C). Thus, under these sentencing provisions, a 17-year-old 

defendant may receive a misdemeanor sentence for committing 

aggravated child molestation against a 13-year-old victim but may 

not receive a misdemeanor sentence for committing child 

molestation against the same victim.3

OCGA § 16-6-4’s statutory scheme reveals two legislative 

determinations made by the General Assembly. First, acts of child 

molestation involving sodomy generally warrant more punishment

than those not involving sodomy. This determination is evident 

from the definitions of the offenses themselves and the sentences 

prescribed. See OCGA § 16-6-4. Second, the misdemeanor 

sentencing provisions found in OCGA § 16-6-4 (b) (2) and (d) (2) 

3 The sentencing provisions found in OCGA § 16-6-4 (b) (2) and (d) (2) 

are mandatory: under both provisions, the defendant “shall” receive a 

misdemeanor sentence if the respective statutory requirements are met.
11

reveal the General Assembly’s determination that acts of child 

molestation are less deserving of punishment when the defendant 

and the victim are within the prescribed age ranges than when the 

same acts are committed by an older defendant or against a younger 

victim: when the defendant is older than 18 years of age or the victim 

is younger than 13 years of age, both child molestation and 

aggravated child molestation are felony offenses. See OCGA 

§ 16-6-4 (b), (d); Ga. L. 2006, p. 379, § 11 (amending OCGA § 16-6-4 

to add misdemeanor sentencing provisions, among other changes).

(b) The Fourteenth Amendment to the United States

Constitution provides in relevant part that no state shall “deny to 

any person within its jurisdiction the equal protection of the laws.” 

U.S. Const., Amend. XIV, Sec. 1. “An equal protection challenge to 

a criminal statute is examined under the rational basis test” if, as 

here, the statute does not “discriminate[ ] on racial grounds or 

against a suspect class.” Session v. State, 316 Ga. 179, 190 (3) (b) 

(887 SE2d 317) (2023) (citation and punctuation omitted). Because 

legislation is presumptively constitutional, the claimant carries the 
12

burden of proving that a statute is unconstitutional. See id. at 191 

(4) (citation and punctuation omitted). To carry that burden in the 

equal-protection context, the claimant must demonstrate that “he is 

similarly situated to members of the class who are treated 

differently from him” and that “there is no rational basis for such 

different treatment.” Id. at 190 (3) (b) (citation and punctuation 

omitted).

In requiring that similarly situated persons be treated alike, 

the Fourteenth Amendment’s Equal Protection Clause forbids “all 

classifications that are ‘arbitrary or irrational.’” Glenn v. Brumby, 

663 F3d 1312, 1315 (I) (11th Cir. 2011) (quoting City of Cleburne v. 

Cleburne Living Ctr., Inc., 473 U.S. 432, 446-447 (105 SCt 3249, 87 

LE2d 313) (1985)). See Stegall v. Leader Nat. Ins. Co., 256 Ga. 765, 

766 (5) (353 SE2d 484) (1987) (“The equal protection clauses of the 

federal and state constitutions prohibit the state from creating a 

classification which arbitrarily divides similarly situated citizens 

into different classes and treats them differently.” (citation and 

punctuation omitted)). See also State v. Holland, 308 Ga. 412, 414 
13

(1) (841 SE2d 723) (2020) (“Where a criminal statute does not 

discriminate on racial grounds or against a suspect class, equal 

protection . . . concerns are satisfied if the statute bears a reasonable 

relation to a proper legislative purpose and is neither arbitrary nor 

discriminatory.” (citation and punctuation omitted)). “Of course, 

most laws differentiate in some fashion between classes of persons. 

The Equal Protection Clause does not forbid [all] classifications.” 

Nordlinger v. Hahn, 505 U.S. 1, 10 (II) (112 SCt 2326, 120 LE2d 1) 

(1992) (citation and punctuation omitted). It simply forbids those 

classifications that fail to “promote a legitimate state purpose.” 

Williams v. Vermont, 472 U.S. 14, 23 (III) (105 SCt 2465, 86 LE2d 

11) (1985) (citation and punctuation omitted). See C & S Nat. Bank 

v. Mann, 234 Ga. 884, 887 (2) (218 SE2d 593) (1975) (“[T]he equal 

protection clause of the Constitution allows classification by 

legislation when and only when the basis of such classification bears 

a direct and real relation to the object or purpose of the 

legislation . . . .” (citations and punctuation omitted)). In doing so, 

the Equal Protection Clause “keeps governmental decisionmakers 
14

from treating differently persons who are in all relevant respects 

alike.” Nordlinger, 505 U.S. 1, at 10 (II) (citation and punctuation 

omitted; emphasis supplied).

Given this analytical framework and the particular facts of 

Appellant’s as-applied constitutional challenge, we must consider 

whether Appellant, who was 17 years old at the time of the offense 

and received a felony sentence for child molestation against a 13-

year-old victim, is similarly situated in “all relevant respects” to the 

comparison class of defendants who have received misdemeanor 

sentences for aggravated child molestation against a victim of the 

same age. Nordlinger, 505 U.S. at 10 (II).

Both Appellant and members of the comparison class have 

committed the underlying offense of child molestation. See Dixon 

278 Ga. at 7 (2). Additionally, both Appellant and members of the 

comparison class have satisfied the conditions set forth in two of the 

three subparagraphs of the misdemeanor sentencing provisions for 

aggravated child molestation: the victim in both instances is “at 

least 13,” OCGA § 16-6-4 (d) (2) (A), and the defendant in both 
15

instances is “18 years of age or younger and is no more than four 

years older than the victim,” id. at § 16-6-4 (d) (2) (B). The only 

difference between Appellant and members of the comparison class 

is that the basis for Appellant’s charge of child molestation did not 

“involve[ ] an act of sodomy.” Id. at § 16-6-4 (d) (2) (C). Whether the 

commission of an act of sodomy is a relevant difference between 

Appellant and members of the comparison class turns on whether 

the classification scheme drawn by the General Assembly 

concerning acts of sodomy “promote[s] a legitimate state purpose”

such that those classifications are neither arbitrary nor irritational. 

Williams, 472 U.S. at 23 (III) (citation and punctuation omitted).

See also Holland, 308 Ga. at 414 (1).

As a general matter, it is not arbitrary or irrational to classify 

acts of child molestation involving sodomy differently than those 

that do not and to punish child molesters differently based on 

whether or not they engaged in sodomy with their victims. See 

Glenn, 663 F3d at 1315 (I) (holding that the Equal Protection Clause 

forbids classifications that are “arbitrary or irrational” (citation and 
16

punctuation omitted)). Indeed, the General Assembly is at liberty 

to determine that acts of molestation involving sodomy are worse 

than acts of molestation that do not and to prescribe different crimes 

and punishments based on this distinction. See Rooney v. State, 287 

Ga. 1, 6 (3) (690 SE2d 804) (2010) (“Traditionally, it is the task of 

the legislature . . . to define crimes and set the range of sentences.” 

(citation and punctuation omitted)). To that end, the felony

sentencing scheme found in OCGA § 16-6-4 (d) (1) promotes 

Georgia’s legitimate interest in deterring acts of child molestation 

involving sodomy by punishing such acts more harshly than acts of 

simple child molestation. Compare OCGA § 16-6-4 (b) (1), with 

OCGA § 16-6-4 (d) (1).

Generally speaking, the General Assembly also has a rational 

basis for classifying acts of child molestation based on the ages of 

the defendant and the victim and the difference in age between 

them. As a general matter, both of the misdemeanor provisions 

found in OCGA § 16-6-4 serve a proper legislative purpose insofar 

as they reduce to a misdemeanor the punishment for certain sex acts 
17

between teenagers within the prescribed age ranges who are less 

than four years apart. See OCGA § 16-6-4 (b) (2), (d) (2).

Here, however, we are faced with a unique set of circumstances 

that forces us to ask whether the otherwise generally sound

classification scheme found in OCGA § 16-6-4 remains rational 

when applied to Appellant. As noted above, the General Assembly 

has identified sodomy as one type of conduct that elevates the 

offense of child molestation to aggravated child molestation, thereby 

subjecting persons found to have engaged in such conduct to more 

severe sentences. See OCGA § 16-6-4 (c), (d) (1). With respect to the 

misdemeanor sentencing provisions, however, the General 

Assembly has identified sodomy as the type of conduct that reduces 

the offense of aggravated child molestation from a felony to a 

misdemeanor when the victim and the defendant are within the 

given age ranges. See id. at § 16-6-4 (d) (2). This contrast, in itself, 

is not necessarily problematic. An issue arises only because the 

victim-age-thresholds in the statute’s two misdemeanor provisions 

are different: misdemeanor child molestation requires that the 
18

victim be “at least 14” years old, but misdemeanor aggravated child 

molestation only requires that the victim be “at least 13” years old. 

Id. at § 16-6-4 (b) (2), (d) (2) (A). This statutory scheme allows for 

the very particular circumstance in which Appellant finds himself: 

because Appellant molested a 13-year-old victim, he was sentenced 

to a more severe punishment than persons committing the 

aggravated version of the same offense against a victim of the same 

age, precisely because Appellant did not engage in the conduct (i.e., 

sodomy) that makes the offense aggravated.

When applied to Appellant, OCGA § 16-6-4’s statutory scheme 

operates in a way directly at odds with its otherwise legitimate 

purposes. Appellant did not engage in sodomy, but he is punished 

more harshly than members of the comparison class that did. 

Appellant was 18 years of age or younger, and less than four years 

older than his 13-year-old victim, but his sentence was not reduced 

to a misdemeanor. The fact that Appellant’s sentence would have 

been so reduced if he had touched the victim’s mouth with his penis 

(and thereby committed an act of aggravated child molestation
19

involving sodomy) rather than her hand (and thus committed simple 

child molestation) is not only inconsistent with those legitimate 

legislative purposes that we have identified above but also directly 

contradicts them. And such a classification scheme promotes no 

other proper legislative purpose that we can discern.4 Thus, the fact 

that Appellant did not commit sodomy cannot be a relevant 

difference between Appellant and the comparison class that renders 

them dissimilarly situated and that warrants a difference in 

treatment.

(c) The State argues that the misdemeanor sentencing 

provisions for aggravated child molestation are rational because 

4 Contrary to the dissenting opinion, we need not substitute our 

judgment for that of the General Assembly to determine that Appellant has 

received a more severe sentence than members of the comparison class for a 

less culpable offense. Dissent at 48 (c) (“[N]othing in the Equal Protection 

Clause . . . allow[s] courts to supersede legislative judgment about which 

crimes should result in harsher penalties.” (citations and punctuation 

omitted)). While it would be inappropriate to cast our gaze across the Criminal 

Code to ensure it provides a scheme of punishment proportional to our own 

perceived hierarchy of criminal offenses, we need not and do not exercise such 

judgment here: when making this determination, we rely entirely on the 

General Assembly’s definitions of child molestation and aggravated child 

molestation and its designation of one offense as the aggravated version of the 

other. See OCGA § 16-6-4 (a), (c).
20

they prescribe a reduced sentence for teenagers who engage in 

consensual sodomy, and teenagers engaging in consensual sex acts 

are less deserving of punishment than Appellant, who engaged in 

non-consensual acts. The victim’s lack of consent, however, is an 

element of neither child molestation nor aggravated child 

molestation. See OCGA § 16-6-4 (a), (c). Indeed, Appellant would 

remain ineligible for a misdemeanor sentence even if his victim’s 

participation had been voluntary, which it was not. In other words, 

the challenged classification here does not draw any line between 

“consensual” acts and nonconsensual acts: under the statute, if the 

victim is 13 years old, simple child molestation is a felony regardless 

of whether the victim engaged in the conduct consensually. And the 

State offers no reason at all to believe that the conduct that 

comprises felony simple child molestation is somehow any less likely 

to be voluntary than the conduct involving sodomy that is classified 

as misdemeanor aggravated child molestation. Moreover, even 

assuming that there was such a reason, it would not explain why the 

victim-age-threshold for misdemeanor aggravated child molestation 
21

is 13 years of age, but the victim-age-threshold for misdemeanor 

child molestation is 14 years of age. Accordingly, the State’s 

argument fails.

Nor can we see any other rational basis for prescribing 

misdemeanor sentences for the aggravated child molestation of 13-

year-old victims, while also prescribing felony sentences for simple 

child molestation of 13-year-old victims. As explained above, 

permitting persons convicted of aggravated child molestation to 

receive misdemeanor sentences while requiring a harsher felony 

sentence for a defendant who is alike in all other respects except 

that he did not engage in sodomy directly conflicts with the 

otherwise legitimate purpose of the statutory scheme: punishing 

child molestation involving sodomy more harshly. It is not rational 

to use an act of sodomy to justify both a harsher felony sentence 

generally and a more lenient misdemeanor sentence under the 

particular facts at issue here, where the victim is between 13 and 14 

years old.

(d) The dissenting opinion takes issue with both our similarly-
22

situated analysis and our rational basis analysis, but its arguments 

fail in both regards.

The dissenting opinion claims that Appellant is not similarly 

situated to members of the comparison class because he was 

convicted under a materially different statutory provision and 

because he did not commit an act of child molestation involving

sodomy. See Dissent at 42, 45 (b). As the dissenting opinion notes, 

these two differences are closely intertwined: Appellant was 

convicted under a different statutory provision than members of the

comparison class precisely because of his different conduct. See id.

at 45 (b). We disagree, however, with the dissenting opinion’s 

assertion that the presence or lack of sodomy is always material. 

For the reasons described above, whether Appellant’s particular act 

of child molestation involved sodomy is not a relevant difference that 

renders him differently situated than a person in the comparison 

class, even if it would be a germane fact in determining that persons 

convicted of child molestation and persons convicted of aggravated 

child molestation are not similarly situated in other contexts. Here, 
23

Appellant committed simple child molestation but received a more 

severe punishment than the aggravated version of the same offense 

because he did not engage in the type of behavior that makes the 

offense aggravated. Under these narrow circumstances, whether or 

not the basis of Appellant’s charge involved an act of sodomy does 

not make him differently situated than a person in the comparison 

class who receives a misdemeanor sentence for aggravated child 

molestation against a victim of the same age.

With respect to our similarly-situated analysis, the dissenting 

opinion also takes issue with the fact that we appear to do something 

not done previously, namely rule in favor of a claimant “on an asapplied equal-protection challenge to his sentence by comparing his 

conduct to a hypothetical defendant’s different conduct, or by 

comparing what Appellant actually did to what he might have done 

differently.” Dissent at 40 n.9 (b). Though we have not cited cases 

where we have engaged in this exact type of analysis previously, the 

dissenting opinion also fails to identify cases in opposition where a 

claimant has been subject to a statute that prescribes a more severe 
24

punishment for certain instances of a simple offense than the 

aggravated version of the same offense based only on the omission 

of the conduct that makes the offense aggravated.5 This appears to 

be the first time that we have encountered the coupling of the precise 

5 Footnote 2 of the dissenting opinion lists numerous citations to support 

the proposition that “the great weight of authority” rejects prior as-applied 

equal-protection challenges “comparing [a defendant’s] conduct to a 

hypothetical defendant’s different conduct.” Dissent at 40 n.9 (b). Most of 

these cases bear no resemblance to this one. The one most similar to the facts 

here appears to be U.S. v. Hughes, 632 F3d 956 (6th Cir. 2011). There, the 

defendant pleaded guilty to one count of attempting to entice a minor to engage 

in a criminal sexual act, in violation of 18 USC § 2422 (b). See Hughes, 632 

F3d at 958. The defendant in Hughes alleged that his mandatory minimum 

sentence of ten years in prison violated his due process and equal protection 

rights under the Fifth Amendment to the United States Constitution because 

persons convicted of the similar offense of transporting minors with intent to 

engage in illicit sexual conduct in violation 18 USC § 2423 (b) are not subject 

to a mandatory minimum sentence. See id. The defendant argued that if he 

had driven out of state to meet the minor, rather than to a location within his 

home state, he would have been charged with violating 18 USC § 2423 (b) and 

therefore avoided the imposition of his mandatory minimum sentence. See id. 

at 961 (II) (B). The Hughes court concluded that the defendant’s argument 

failed because he “is not similarly situated to the theoretical defendant who 

commits a violation of § 2423(b).” Id. (emphasis in the original). The court’s 

issue was not with the defendant’s use of theoretical defendants as comparison 

class, but the fact that the crime for which defendant was convicted included 

an element that the comparison crime did not. See id. Though the Hughes 

case appears to bear a superficial similarity to the case here at first glance, 

this closer look reveals that it does not apply. The statutory provisions at issue 

in Hughes did not involve the simple and aggravated versions of the same 

offense, as they do here. Unlike the instant case, where the elements of the 

statute under which Appellant was charged (i.e., child molestation) are 

included in the statute to which the comparison class is subject (i.e., 

aggravated child molestation), the two offenses in Hughes were separate.
25

nature of Appellant’s crime with the particular oddities of a statute 

such as this one.

The dissenting opinion’s rational basis argument also fails. 

The dissenting opinion begins by pointing out that an appellant can 

mount a successful equal-protection argument even if members of 

the comparison class are not charged with the same offense. See 

Dissent at 36 (a) (“In my view, where we have only required as 

essential to an equal-protection claim that a criminal defendant be 

charged with the identical offense as someone enjoying more 

favorable treatment, we have missed the mark.”). But the 

dissenting opinion later faults Appellant for failing to confine his 

analysis to the statutory provision under which he was charged and 

sentenced, and for instead comparing this provision to a “wholly 

separate provision.” Id., at 51 (c). See also id. at 50 (c) (“Rational 

basis review, however, does not require one provision of a law to be 

rationally related to another provision; it requires the challenged 

law to be rationally related to a legitimate government interest.” 

(citations and punctuation omitted)). In faulting Appellant in this 
26

manner, the dissenting opinion subjects Appellant to the very 

bright-line rule from which it sought to distance itself initially. This 

analysis is not only internally inconsistent, it is also incorrect: asapplied equal-protection claims necessarily involve comparisons 

between members of the different groups created by a classification 

scheme, whether created by one or more statutory provisions, and 

we are required to consider whether there is a rational basis for any 

resulting difference in treatment between similarly-situated 

members of such groups.6 Because the dissenting opinion frames 

the types of comparisons that can be made in viable equal-protection 

challenges too narrowly, it misses the mark.

The dissenting opinion further argues that there is a rational 

basis for OCGA § 16-6-4’s statutory scheme. Because the General 

Assembly prescribed stern penalties for felony aggravated child 

6 We do not contend that any apparent inconsistency in sentencing 

between different statutes necessarily indicates that the General Assembly 

acted without a rational basis. But see Dissent at 50 (c). Rather, here, we have 

examined the classification scheme present in a single statute as it applies to 

Appellant under the particular facts of his case to see if the sentencing 

prescribed by the General Assembly lacks a rational basis as applied to him.
27

molestation, the dissenting opinion argues, it also had a legitimate 

interest in crafting misdemeanor exceptions which ensure that 

“youthful defendants who engage in acts of sodomy will not be 

subject to the law’s harshest consequences.” Dissent at 53 (c). See 

also OCGA §§ 16-6-4 (b), (d); 17-10-6.1; 17-10-6.2. On this point, we 

agree: as we previously noted in Section 3 (b), supra, OCGA 

§ 16-6-4’s misdemeanor sentencing provisions generally serve a

legitimate governmental purpose insofar as they reduce sentences 

for youthful defendants when the age-related conditions for the 

defendant and the victim are met. See OCGA § 16-6-4 (b) (2), (d) (2). 

But in identifying this purpose, the dissenting opinion does little to 

explain why the misdemeanor provisions for aggravated child 

molestation apply when the victim is at least 13 years old, but the 

misdemeanor provisions for child molestation require that the 

victim be at least 14 years old. See id.; Ga. L. 2006, p. 379, § 11 

(amending OCGA § 16-6-4 to add misdemeanor sentencing 

provisions for child molestation and aggravated child molestation, 

among other changes). Because the dissenting opinion fails to 
28

adequately explain this discrepancy and thereby fails to supply a 

rational basis for the statutory scheme, we remain unpersuaded.

4. Because Appellant is similarly situated to persons receiving 

misdemeanor sentences for aggravated child molestation against a 

13-year-old victim and because the higher age threshold for 

misdemeanor child molestation bears no reasonable relation to a 

proper legislative purpose, we conclude that the sentencing scheme 

for child molestation set out at OCGA § 16-6-4 (b), as applied to 

Appellant, violated his right to equal protection under the 

Fourteenth Amendment to the United States Constitution.

Accordingly, we reverse the trial court’s denial of Appellant’s motion 

in arrest of judgment, vacate Appellant’s sentence, and remand for 

the trial court to resentence Appellant for child molestation under 

OCGA § 16-6-4 (b) (2) rather than under OCGA § 16-6-4 (b) (1).

Judgment reversed, sentence vacated, and case remanded for 

resentencing. All the Justices concur, except Bethel and LaGrua, JJ., 

who dissent.
29

PINSON, Justice, concurring.

I agree with the Court’s narrow holding that the sentencing 

provisions of OCGA § 16-6-4 (b) (2), as applied to the defendant here, 

violate his right to equal protection under the Fourteenth 

Amendment to the United States Constitution. I write separately 

only to note that I do not understand federal equal protection 

analysis to require a separate, threshold determination whether a 

claimant is “similarly situated” to members of the class who are 

treated differently from him. In many equal protection decisions, the 

United States Supreme Court does not even use the phrase 

“similarly situated,” see, e.g., Romer v. Evans, 517 U.S. 620, 631 (116 

S. Ct. 1620, 1627, 134 LE2d 855) (1996) (in setting out the standard 

for assessing an equal protection claim subject to rational basis 

review, stating only that “if a law neither burdens a fundamental 

right nor targets a suspect class, we will uphold the legislative 

classification so long as it bears a rational relation to some 

legitimate end”), and when it does, it is a mere restatement of what 

the Equal Protection Clause requires as a general matter, not a 
30

separate or threshold test. See, e.g., City of Cleburne, Tex. v. 

Cleburne Living Ctr., 473 U.S. 432, 439 (105 S. Ct. 3249, 3254, 87 

LE2d 313) (1985) (“The Equal Protection Clause of the Fourteenth 

Amendment commands that no State shall ‘deny to any person 

within its jurisdiction the equal protection of the laws,’ which is 

essentially a direction that all persons similarly situated should be 

treated alike.”); Plyler v. Doe, 457 U.S. 202, 216 (102 S. Ct. 2382, 72 

LE2d 786) (1982) (“The Equal Protection Clause directs that ‘all 

persons similarly circumstanced shall be treated alike.’”). 

And logically, we cannot reject a federal equal protection claim 

based merely on a conclusion that some characteristic distinguishes 

the claimant from the group that the government is treating 

differently. Even under rational basis review, the ultimate question 

is whether the government has a legitimate (i.e., not arbitrary) 

reason for treating the claimant differently. See, e.g., Rinaldi v. 

Yeager, 384 U.S. 305, 308-309 (86 S. Ct. 1497, 16 LE2d 577) (1966) 

(“The Equal Protection Clause . . . imposes a requirement of some 

rationality in the nature of the class singled out.... [L]egislation may 
31

impose special burdens upon defined classes in order to achieve 

permissible ends. But the Equal Protection Clause does require that, 

in defining a class subject to legislation, the distinctions that are 

drawn have ‘some relevance to the purpose for which the 

classification is made.’” (citations omitted)). So if some characteristic 

distinguishes the claimant from the group, that’s not the end of the 

inquiry—we still have to determine whether that characteristic is a 

legitimate basis for the different treatment. And if not, the proper 

conclusion is that the classification lacks a rational basis, not that 

the claimant loses because he is not “similarly situated.” On the 

other hand, if that characteristic is a legitimate basis for the 

different treatment, that’s just another way of saying that there is a 

rational basis for the government’s classification. In short, the 

“similarly situated” question may help isolate the possible factual 

bases for the claimant’s different treatment compared to the 

comparison group, particularly in an as-applied challenge where the 

basis for a classification does not appear expressly on the face of a 
32

statute. But the similarly-situated step is not an independent basis 

for rejecting an equal protection claim.

I understand the Court’s opinion to be consistent with this 

view. Although the Court assesses whether the defendant here is 

“similarly situated” to the group he identifies as receiving better 

treatment than himself, we frame that question as whether he is 

similarly situated “in all relevant respects,” and we explain that 

whether the distinguishing characteristic here is a “relevant 

difference” turns on whether treating the defendant differently 

based on that distinguishing characteristic “promote[s] a legitimate 

state purpose.” Slip Op. at 15. In my view, that’s just rational basis 

review using different words, as the balance of the Court’s analysis 

shows. 7

7 Because the Court concludes that the defendant here is similarly 

situated and that the classification as applied to him violated his right to equal 

protection of the laws, we need not decide what to do with this Court’s decisions 

that reject federal equal protection claims based on a preliminary 

determination that the claimant was not “similarly situated” without 

addressing whether there was a rational basis for treating the claimant 

differently. See, e.g. Drew v. State, 285 Ga. 848 (684 SE2d 608) (2009). That 

said, in a future case we may need to consider whether that approach conflicts 

with U.S. Supreme Court precedent. In that vein, I note that at least some of 
33

With this understanding, I join the Court’s opinion.

I am authorized to state that Presiding Justice Peterson, 

Justice Warren, and Justice McMillian join in this concurrence.

our decisions taking that approach can be traced back to decisions from the 

U.S. Court of Appeals for the Eleventh Circuit that are not grounded in U.S. 

Supreme Court precedent. See, e.g., Stuart-James Co. v. Tanner, 259 Ga. 289, 

290 (380 SE2d 257) (1989) (citing Price v. Tanner, 855 F.2d 820 (11th Cir. 1988) 

for the proposition that an equal protection claim is analyzed under a “twoprong” test which requires “as a ‘preliminary step’ a determination of ‘whether 

persons who are similarly situated are subject to disparate treatment” and 

holding that the claimants had not met their “threshold obligation” to show 

they are similarly situated to the comparator group (citations omitted)). See 

also Price, 855 F.2d at 822 (citing Circuit precedent for the idea that “[a]n equal 

protection analysis...requires as a ‘preliminary step’ a determination of 

‘whether persons who are similarly situated are subject to disparate 

treatment.’” (citations omitted). Accord Jones v. State, 307 Ga. 505, 507-508 

(837 SE2d 288) (2019) (analyzing only the “first prong” of the equal protection 

analysis); Reed v. State, 264 Ga. 466, 466-467 (488 SE2d 189) (1998) (“Since 

Reed failed to satisfy the threshold obligation in his equal protection challenge, 

we do not consider whether the statute is rationally related to a legitimate 

state interest.”); Sims v. State, 260 Ga. 782, 782-783 (399 SE2d 924) (1991) (“To 

successfully launch an equal protection attack on a statutory provision, a 

claimant must initially show that he is similarly situated to members of the 

class who are treated differently from him.”).
34

 BETHEL, Justice, dissenting.

Because I believe Appellant’s sentence is due to be affirmed, I 

respectfully dissent. I agree with the majority’s description of the 

proper test to be applied to Appellant’s equal-protection claim. I 

believe, however, that the majority has identified an incorrect 

theoretical comparator for that analysis. For what appears to be the 

first time anywhere, the majority upholds an equal-protection claim 

by referencing a theoretical defendant whose crime requires proof of 

at least one act more than the act(s) committed by the person raising 

the equal protection claim. Because Appellant is not treated less 

favorably than any individual he has identified or theorized who 

engaged in the same conduct, his equal-protection claim fails. 

“The Equal Protection Clause of the Fourteenth Amendment 

commands that no State shall deny to any person within its 

jurisdiction the equal protection of the laws, which is essentially a 

direction that all persons similarly situated should be treated alike.” 

(Citation and punctuation omitted; emphasis supplied.) City of 

Cleburne v. Cleburne Living Ctr., 473 U. S. 432, 439 (II) (105 SCt 
35

3249, 87 LE2d 313) (1985). To succeed on an equal-protection 

challenge, the claimant must demonstrate that he has been treated 

differently from similarly situated persons.8 And as the majority 

correctly recognizes, persons are similarly situated for equalprotection purposes if they are alike “in all relevant respects.” 

(Emphasis in original.) Maj. Op. at 14 (3) (b).

(a) I begin with a point of certainty. When this Court has had 

occasion to consider equal-protection claims arising from allegedly 

disparate sentencing schemes, we have consistently held that 

“criminal defendants are similarly situated if they are charged with 

the same crime.” Session v. State, 316 Ga. 179, 189-190 (3) (b) (887 

SE2d 317) (2023). See also State v. Holland, 308 Ga. 412, 416 (2) 

(841 SE2d 723) (2020); Jones v. State, 307 Ga. 505, 507-508 (2) (a) 

(837 SE2d 288) (2019); Pitts v. State, 293 Ga. 511, 516 (2) (748 SE2d 

8 When an as-applied petitioner does not claim differential treatment 

based on membership in a suspect class, the petitioner must also establish that 

there is no rational basis for his individualized differential treatment. See 

Jones v. State, 307 Ga. 505, 507-508 (2) (a) (837 SE2d 288) (2019). Whether 

this is a two-part inquiry or part-in-parcel with the similarly situated inquiry, 

a claimant has the burden of proof as to the inquiry. See id. 
36

426) (2013); Drew v. State, 285 Ga. 848, 850 (2) (684 SE2d 608) 

(2009); Hardin v. State, 277 Ga. 242, 243 (2) (587 SE2d 634) (2003); 

Young v. State, 275 Ga. 309, 309-310 (1) (565 SE2d 814) (2002); State 

v. Jackson, 271 Ga. 5, 5-6 (515 SE2d 386) (1999). Our analysis in 

these cases suggests that, as a general proposition or even as an 

absolute requirement, an appellant must have been charged with 

the same offense as those criminal defendants with whom he 

contended he was similarly situated. 

To the extent this line of cases suggests an absolute 

requirement that a claim be based on a comparator charged with the 

same crime, I view it as in tension with the broader rule relied upon 

by the majority, which requires courts to determine whether a 

defendant and a given comparator are (or are not) similarly situated 

in all relevant respects. In my view, where we have only required as 

essential to an equal-protection claim that a criminal defendant be 

charged with the identical offense as someone enjoying more 

favorable treatment, we have missed the mark. On this point, the 

majority and I agree. Indeed, our recognition here of the proper “all 
37

relevant respects” standard should serve to redirect future analysis 

away from the static rule suggested by some of our precedent and 

properly toward a more comprehensive inquiry. 

(b) My disagreement with the majority arises not from the 

standard it has applied, but from the way in which it applies that 

standard. The majority concludes that Appellant, who was convicted 

of child molestation and sentenced for a felony under OCGA § 16-6-

4 (a) (1) and (b) (1), is similarly situated to a theoretical defendant 

who was convicted of aggravated child molestation based on sodomy 

and sentenced for a misdemeanor under OCGA § 16-6-4 (c) and (d) 

(2). The majority has centered its analysis — incorrectly, in my view 

— on the similarities of the statutory elements of child molestation 

and aggravated child molestation, rather than on the actual facts of 

Appellant’s case. And because of this misplaced focus, the majority 

overlooks two controlling points of comparison that lead me to 

conclude that Appellant is not similarly situated with the 

comparative group. Turning first to the majority’s analytical 

framework, by training its focus solely on the statutory elements of 
38

the crimes, the majority functionally treats Appellant’s claim as a 

facial challenge to the sentencing scheme but does not extend its 

analysis to consider whether the statute would be unconstitutional 

in all circumstances, as a proper facial analysis should. See Bucklew 

v. Precythe, ___ U. S. ___ (II) (B) (139 SCt 1112, 1127, 203 LEd2d 

521) (2019) (“A facial challenge is really just a claim that the law or 

policy at issue is unconstitutional in all its applications.”). 

Appellant’s claim, however, is not a facial challenge. He 

instead challenges the sentencing scheme as it applies to him under 

the facts of his particular case. See Jones, 307 Ga. at 509 (2) (b) (“An 

as-applied challenge addresses whether a statute is 

unconstitutional on the facts of a particular case or to a particular 

party.” (punctuation omitted)). Because Appellant has raised an asapplied equal-protection challenge to his sentence, he can prevail 

only by showing, from his own identifying characteristics or his 

actual conduct, that the government treated him differently based 

on his membership in a suspect class, or that the government 

arbitrarily singled him out for harsher punishment than persons 
39

who engaged in his same conduct. See, e.g., Engquist v. Or. Dept. of 

Agric., 553 U. S. 591, 601 (II) (B) (128 SCt 2146, 170 LEd2d 975) 

(2008) (explaining that, when an equal-protection challenger is not 

a member of a suspect class, his claim nevertheless may be 

sustained where he has been “irrationally singled out as a so-called 

‘class of one’”); United States v. Batchelder, 442 U. S. 114, 124-25 

(III) (B) (99 SCt 2198, 60 LEd2d 755) (1979) (holding that, absent 

evidence of selective enforcement based on a prohibited 

classification, defendant’s right to equal protection was not violated 

where he was prosecuted under a law with harsher penalties than 

another law under which he also could have been prosecuted); 

Campbell v. Rainbow City, 434 F3d 1306, 1314 (II) (C) (11th Cir. 

2006) (An equal-protection challenge will fail where the claimant, 

who must prove that he was “intentionally treated differently from 

others similarly situated and that there [was] no rational basis for 

the difference in treatment,” does not make the “necessary showing 

of ill will or discriminatory purpose.”). 

While we must apply the same “all relevant respects” inquiry 
40

to both facial and as-applied challenges, see Bucklew, 139 SCt at 

1127 (II) (B) (“[C]lassifying a lawsuit as facial or as-applied . . . does 

not speak at all to the substantive rule of law necessary to establish 

a constitutional violation[.]”), the analysis each requires is 

necessarily distinct. Here, our analysis of Appellant’s as-applied 

challenge must focus on the actual facts of Appellant’s case, not the 

elements of two different statutory provisions, nor the facts as they 

might have been had Appellant acted differently, and certainly not 

the facts of a hypothetical defendant’s case.9 In other words, the 

9 Neither Appellant nor the majority have cited, and I have been unable 

to find, any decisional authority in which a claimant has prevailed on an asapplied equal-protection challenge to his sentence by comparing his conduct to 

a hypothetical defendant’s different conduct, or by comparing what Appellant 

actually did to what he might have done differently. While the absence of such 

authority does not disprove the possibility that such a claim may be successful, 

the great weight of authority rejecting all such prior attempts gives me pause. 

See, e.g., Mitchell v. Morton County, 28 F4th 888, 902 (II) (B) (3) (8th Cir. 2022)

(“[A]n equal protection violation cannot be founded on theoretical 

possibilities.”); Carney v. Okla. Dept. of Pub. Safety, 875 F3d 1347, 1353 (D)

(10th Cir. 2017) (holding that equal-protection claim failed because defendant 

could not prove that he was treated differently than persons convicted of the 

same crime); Hughes, 632 F3d at 961 (II) (B) (holding that defendant was not 

similarly situated to a “theoretical defendant” who violated a different law 

because he “commit[ted] separate crimes encompassing different elements,” 

and insofar that the defendant “claim[ed] an equal protection violation because 

he was similarly situated to actual defendants prosecuted under [one law], 

[but] who in fact committed all the elements of [another law], that is a claim 
41

proper inquiry is whether the actual facts of Appellant’s case show 

for selective prosecution”); United States v. Hancock, 231 F3d 557, 566 (III) (A) 

(2) (9th Cir. 2000) (finding no equal-protection violation despite fact that a 

statute could, in some hypothetical circumstances, “treat [] misdemeanants 

more harshly than it treats some felons”); United States v. Carroll, 110 F3d 

457, 461 (II) (7th Cir. 1997) (Because sentencing schemes “will necessarily 

involve line-drawing likely to be offensive to the defendant who just misses the 

cutoff,” to prevail on an equal-protection challenge, a defendant “must do more 

than suggest a different line-drawing technique” by suggesting a hypothetical 

which “favors his situation.”); State v. McEnroe, 309 P3d 428, 435 (IV) (Wa. 

2013) (explaining that engaging in hypotheticals for purposes of equalprotection analysis “unrealistically assumes that there are two identical 

crimes and two identical defendants and thereby forecloses the possibility of 

an individualized assessment by asking us to assume everything is equal” and, 

therefore, “does not illustrate a realistic equal protection violation but 

demonstrates exactly why we require individualized determinations from our 

prosecuting attorneys”); State v. Taylor, 939 P2d 904, 908 (II) (Kan. 1997) 

(holding that “speculation as to what sentencing outcomes multiple defendants 

could face in hypothetical situations” was “insufficient to raise a denial of equal 

protection claim”); State v. Sandifer, 679 So2d 1324, 1333 (La. 1996) (Because 

defendant was not being prosecuted for a theoretical crime under a different 

statute, “he had no standing to raise [an] equal protection claim.”); State v. 

O'Connor, 194 NW2d 246, 250 (S.D. 1972) (refusing to reverse conviction based 

“on the hypothetical contention that conceivably two persons under like 

circumstances could be charged with different offenses arising out of the same 

circumstances”). See also Del Marcelle v. Brown County Corp., 680 F3d 887, 

897-898 (7th Cir. 2012) (Posner, J.) (explaining that “[c]lass-of-one claims 

cannot be interposed as defenses to criminal prosecutions, convictions, or 

sentences” because “[t]here would be chaos if persons charged with crime could 

base a defense on the ground that a similarly situated criminal suspect had 

not been charged, or if a person convicted of crime could knock out his sentence 

by showing that a similarly situated criminal had received a more lenient 

sentence”). Compare with People v. Montoya, 582 P2d 673 (Colo. 1978), and

Smith v. People, 852 P2d 420 (Colo. 1993), which support the proposition that 

an equal-protection claim can successfully challenge a sentencing scheme 

providing a more severe punishment for a less culpable mental state connected 

to identical conduct.
42

that he, in fact, is similarly situated “in all relevant respects” with 

the comparative group. See PBT Real Estate, LLC v. Town of Palm 

Beach, 988 F3d 1274, 1285 (11th Cir. 2021) (“[W]e apply the 

‘similarly situated’ requirement with rigor” and, as such, the 

comparators “must be prima facie identical in all relevant respects.” 

(citation omitted)); Douglas Asphalt Co. v. Qore, Inc., 541 F3d 1269, 

1275 (11th Cir. 2008) (holding that an equal-protection petitioner 

must be “similarly situated in light of all [relevant] factors” with the 

comparative group). Applying this inquiry, I conclude that at least 

two points of comparison control and, thus, that Appellant is not 

similarly situated to the proposed comparative group.

First, Appellant and the comparators here were convicted 

under materially different statutory provisions. At the time of 

sentencing,10 Appellant had pleaded guilty to the offense of child 

10 The relevant time frame for purposes of determining whether 

Appellant is similarly situated to the comparative group is at the sentencing 

stage. See United States v. Green, 654 F3d 637, 651 (III) (B) (2) (6th Cir. 2011) 

(“[B]ecause [appellant] appears to raise an equal protection claim based on the 

government’s charging decision, he must prove that he was similarly situated 

to [the comparators] at the charging stage.”); Moore, 543 F3d 897 (II) 

(analyzing equal-protection challenge at charging and sentencing stages).
43

molestation under OCGA § 16-6-4 (a) (1), whereas members of the 

comparator group were convicted of aggravated child molestation 

based on an act of sodomy under OCGA § 16-6-4 (c). These statutory 

provisions define separate crimes that proscribe different acts, with 

subsection (c) covering the specific act of sodomy and subsection (a) 

(1) covering the broader “immoral or indecent act to or in the 

presence of or with” a child. While not a sufficient basis on its own 

to conclude that Appellant and the comparative group are not 

similarly situated, the fact that they were convicted of different 

crimes is certainly relevant to the analysis. See United States v. 

Hughes, 632 F3d 956, 960-961 (II) (B) (6th Cir. 2011) (concluding 

that defendant was not “similarly situated to the theoretical

defendant who commits a violation [of a different statute] because 

they commit separate crimes encompassing separate elements” 

(emphasis in original)); United States v. Nagel, 559 F3d 756, 760 (II) 

(A) (7th Cir. 2009) (“[C]riminal defendants who violate [one statute] 

are not similarly situated for sentencing purposes with criminal 

defendants who violate” a different statute. “An equal protection 
44

violation occurs only when different legal standards are arbitrarily 

applied to similarly situated individuals.” (citation and punctuation 

omitted)).

Appellant is further distinguished from the comparator group 

by the facts underlying his conviction.11 At Appellant’s plea hearing, 

the court required the State to provide the factual basis for 

Appellant’s guilty plea. The prosecutor stated as follows: the victim 

“had been asleep on the couch in the living room when she woke up 

11 Curiously, the majority suggests that my analysis is limited to the 

elements of the criminal offenses in question and that my analysis is too 

“narrow” in assessing what points of comparison are properly considered in a 

“viable” equal-protection claim. Maj. Op. at 25-26 (3) (d). On the contrary, my 

view of what considerations may be a part of a viable claim is quite broad. 

Nevertheless, that consideration terminates upon the finding of a material 

difference between the Appellant’s conduct and that of the comparator he 

wishes to be judged against. It would make no sense whatsoever for an “all 

relevant respects” analysis to continue after having identified a material 

difference. This is not a balancing test. Requiring further search for 

similarities after the identification of a material difference would be like 

continuing to search for a lost key after it was found – finding a material 

difference necessarily terminates an all relevant respects analysis. As for the 

suggestion that my analysis is limited to the elements of the crimes in question, 

I agree that I emphasize the relevance of the elements, but I believe they are 

essential to guiding the remainder of the analysis. For example, altering the 

facts of this case would present a meaningful illustration. If, all else being the 

same, Appellant had engaged in an act of sodomy and had nevertheless been 

charged with child molestation as opposed to aggravated child molestation 

(and its sentencing exceptions), I believe we would have a different analysis in 

light of the fact that identical conduct would be present.
45

to her step-brother, [Appellant], beside her . . . and he had placed his 

penis in her hand. . . . [Appellant] covered himself up and went back 

to his room.” Under oath, upon questioning from the court, 

Appellant affirmed the veracity of the State’s representations. These 

facts show that, unlike the comparator group, Appellant did not 

commit an act of sodomy. 

Though the majority discounts this distinction, viewing it as no 

impediment to the survival of Appellant’s equal-protection claim, I 

cannot follow suit. Not only does the majority’s approach ignore the 

very mandate it prescribes — which requires courts to consider “all 

relevant respects” when deciding equal-protection claims — but this 

difference in conduct is the reason Appellant received a different 

sentence than a defendant convicted of and sentenced for 

misdemeanor aggravated child molestation based on sodomy. 

Indeed, when defendants engage in different conduct and, thus, are 

convicted of different crimes, it should be no surprise that their 
46

sentences also might differ.12 But that difference cannot establish an 

equal-protection violation. See Stradford v. Secretary of Pa. Dept. of 

Corrections, 53 F4th 67, 74 (III) (A) (3d Cir. 2022) (“Courts must 

isolate the factor allegedly subject to impermissible discrimination. 

Other factors explaining disparate treatment will usually preclude 

persons from being similarly situated.” (citations and punctuation 

omitted)). See also Griffin v. County School Bd., 377 U. S. 218, 230 

12 The majority minimizes the importance of this distinction by 

imagining how Appellant’s sentence might have been different if he had 

committed an act of sodomy by placing his penis on the victim’s mouth, rather 

than an act of molestation by placing his penis in her hand. But what Appellant 

might have done differently to warrant conviction and sentence for a separate 

crime serves only to confuse the analysis. We have no way of knowing how 

Appellant would have accomplished an act of sodomy, and whether he would 

have done so in a way that would expose him to charges for other crimes. For 

instance, if Appellant used force to commit the act of sodomy, he could be 

charged with aggravated sodomy, an offense that carries a much harsher 

sentence and enjoys no misdemeanor exception for youthful offenders. See 

OCGA § 16-6-2 (a) (2) and (b) (2). Nor do we know how the prosecutor would 

have exercised her discretion in indicting Appellant under this imaginary set 

of circumstances. Indeed, even under the majority’s hypothetical, the 

prosecutor would have discretion to indict Appellant for simple child 

molestation, as in the instant case. See Batchelder, 442 U. S. at 125 (“Just as 

a defendant has no constitutional right to elect which of two applicable [ ] 

statutes shall be the basis of his indictment and prosecution, neither is he 

entitled to choose the penalty scheme under which he will be sentenced.”). This

illustrates the danger of the judicial branch’s venturing into the legislative 

prerogative even where the legislature’s choices appear inconsistent or 

illogical. Accordingly, our analysis must be confined to the facts as they 

actually stand, and we should take the claimant as we find him.
47

(84 SCt 1226, 12 LEd2d 256) (1964) (“[S]howing that different 

persons are treated differently is not enough, without more, to show 

a denial of equal protection.”) (citations omitted)); Tigner v. Texas, 

310 U. S. 141, 147 (60 SCt 879) (84 LE2d 1124) (1940) (“[T]he 

Constitution does not require things which are different in fact or 

opinion to be treated in law as though they were the same.”). 

Therefore, under the facts of Appellant’s case, I would conclude that 

Appellant is not similarly situated to the comparative group.13

 (c) My disagreement with the majority extends to its 

assessment of the rationality of the differences articulated in the 

statutory scheme. Appellant’s actual conduct in this case supported 

a charge of child molestation, to which he pleaded guilty and for

which he was sentenced. If I were to consider my own personal view 

or the apparent view expressed otherwise in the Georgia Code, I 

13 Even if Appellant could prove that he had committed acts which would 

similarly situate him with defendants who were sentenced under the 

misdemeanor aggravated child molestation provision, however, Appellant still 

would not be able to prove that he was singled out for harsher treatment than 

them, which he must do to succeed on his as-applied challenge. See, e.g., 

Engquist, 553 U. S. at 601; Batchelder, 442 U. S. at 124-25 (III) (B); Rainbow 

City, 434 F3d at 1314 (II) (C).
48

would concede that, in most circumstances, an act of sodomy could 

be worse and more traumatic to the victim than an act that 

constitutes simple child molestation. But nothing in the Equal 

Protection Clause requires the legislature to treat offenders who 

commit arguably worse crimes more severely,14 nor does it allow 

14 On that point, we should consider the current state of the Georgia Code 

as it relates to sexual offenses, which is replete with apparent inconsistencies. 

See, e.g., OCGA § 16-6-3 (c) (statutory rape) (“If the victim is at least 14 but 

less than 16 years of age and the person convicted of statutory rape is 18 years 

of age or younger and is no more than four years older than the victim, such 

person shall be guilty of a misdemeanor.”); OCGA § 16-6-5 (c) (enticing a child 

for indecent purposes) (“If the victim is at least 14 but less than 16 years of age 

and the person convicted of enticing a child for indecent purposes is 18 years 

of age or younger and is no more than four years older than the victim, such 

person shall be guilty of a misdemeanor[.]”); OCGA § 16-6-5.1 (f) (2) (A) & (B) 

(improper sexual contact by employee, agent, or foster parent) (“If at the time 

of the offense the victim of the offense is at least 14 years of age but less than 

21 years of age and the person is 21 years of age or younger and is no more 

than 48 months older than the victim, such person shall be guilty of a 

misdemeanor.” However, if the victim “is under the age of 16 and the act 

physically injures the victim or involves an act of sodomy, the offense shall be 

punished by imprisonment for not less than 25 nor more than 50 years and a 

fine not to exceed $100,000.00[.]”); OCGA § 16-6-22.1 (f) (sexual battery)

(“When the alleged victim is under the age of 16 years and the conduct is for 

the purpose of sexual arousal on the part of the alleged offender or alleged 

victim, consent of the alleged victim shall not be a defense to a prosecution 

under this Code section; provided, however, that if at the time of the offense 

the alleged victim is at least 13 but less than 16 years of age and the accused 

is 18 years of age or younger and no more than 48 months older than the 

alleged victim, this subsection shall not be applicable.”); OCGA § 16-6-22.2 (d) 

(aggravated sexual battery) (“When the alleged victim is under the age of 16 

years and the conduct is for the purpose of sexual arousal on the part of the 
49

courts to supersede legislative judgment about which crimes should 

result in harsher penalties. See United States v. Meirick, 674 F3d 

802, 805 (8th Cir. 2012) (“It is within the legislative prerogative to 

determine, for example, whether child pornography offenses should 

be punished more or less harshly than sexual offenses involving 

personal contact with a child . . . . ‘[R]ational basis’ review of 

sentencing provisions under . . . the Equal Protection Clause must 

be highly deferential to legislative judgments about the most 

effective way to protect the public from convicted criminals.”); 

United States v. Hancock, 231 F3d 557, 566 (9th Cir. 2000).

To the contrary, where the petitioner is not a member of a 

suspect class, the legislature’s work enjoys a “strong presumption” 

of rationality, and the petitioner carries the heavy burden “to 

negative every conceivable basis which might support it.” 

(Punctuation omitted.) FCC v. Beach Communications, 508 U.S. 

alleged offender or alleged victim, consent of the alleged victim shall not be a 

defense to a prosecution under this Code section; provided, however, that if at 

the time of the offense the alleged victim is at least 13 but less than 16 years 

of age and the accused is 18 years of age or younger and no more than 48 

months older than the alleged victim, this subsection shall not be applicable.”).
50

307, 314 (II) (113 SCt 2096, 124 LEd2d 211) (1993). The majority 

inverts that burden — it identifies one sentencing provision that 

appears facially inconsistent with another, then all but presumes 

that the identified inconsistency is irrational, simply by virtue of its 

existence. Rational basis review, however, does not require one 

provision of a law to be rationally related to another provision; 

rather, it requires the challenged law to be rationally related to a 

legitimate government interest. See Williamson v. Lee Optical of 

Oklahoma, 348 U. S. 483, 487-488 (75 SCt 461, 99 LEd 563) (1955) 

(A “law need not be in every respect logically consistent” to be 

rational or constitutional.); United States R. Retirement Bd. v. Fritz, 

449 U. S. 166, 179 (101 SCt 453, 66 LE2d 368) (1980) (The process 

of legislative line-drawing “inevitably requires that some persons 

who have an almost equally strong claim to favored treatment be 

placed on different sides of the line, and the fact the line might have 

been drawn differently at some points is a matter for legislative, 

rather than judicial, consideration.” (punctuation omitted)). Because 

Appellant built his case by assessing the rational basis for the 
51

differences between the provision under which he was sentenced 

and a wholly separate provision under which he was not and could 

not have been sentenced, Appellant, in my view, has not carried his 

burden.

In any event, there is a rational basis for the difference in 

treatment. Unless the misdemeanor sentencing exception applies, 

persons convicted of child molestation are subject to the sentencing 

and punishment provisions of OCGA § 17-10-6.2, see OCGA § 16-6-

4 (b) (1), while persons convicted of aggravated child molestation are 

subject to the provisions of OCGA § 17-10-6.1, see OCGA § 16-6-4 (d) 

(1). Under OCGA § 17-10-6.2 (b), a person convicted of child 

molestation, a “sexual offense,” must be sentenced to a “split 

sentence” which includes the “minimum term of imprisonment” —

that is, five years — specified by OCGA § 16-6-4 (b) (1). While OCGA 

§ 17-10-6.2 (b) prohibits a trial court from suspending, staying, 

probating, deferring, or withholding the mandatory minimum 

sentence, subsection (c) of the same statute grants the trial court 

discretion to deviate from that mandatory minimum. Deviation is 
52

permitted where “the prosecuting attorney and the defendant have 

agreed to a sentence that is below such mandatory minimum” or 

where the trial court finds that other circumstances identified in the 

statute are present, even absent consent of the parties. OCGA § 17-

10-6.2 (c) (1). By contrast, under OCGA § 17-10-6.1 (b) (2), a person 

convicted of aggravated child molestation, a “serious violent felony,” 

must, unless sentenced to serve life in prison, be sentenced to “a split 

sentence which shall include a mandatory minimum term of 

imprisonment of 25 years, followed by probation for life.” A trial 

court’s discretion to deviate from that mandatory minimum is 

limited only to circumstances in which “the prosecuting attorney 

and the defendant have agreed to a sentence that is below such 

mandatory minimum.” OCGA § 17-10-6.1 (e). 

These statutes reflect that the default sentence for a conviction 

of aggravated child molestation is much harsher than that for child 

molestation and that, in cases of aggravated child molestation, a 

trial court’s discretion to fashion a more lenient sentence is greatly 

circumscribed and may be implemented only with the government’s 
53

consent. In light of the significant punishment imposed in cases of 

aggravated child molestation where sentencing is governed by 

OCGA § 17-10-6.1, as well as the trial court’s circumscribed 

discretion to reduce such sentences, the legislature had a legitimate 

interest in crafting a scheme that helps ensure that youthful 

defendants who engage in acts of sodomy will not be subject to the 

law’s harshest consequences.15 Broadening the circumstances in 

which the misdemeanor sentencing provision applies is at least 

rationally related to that purpose. See Humphrey v. Wilson, 282 Ga. 

520, 528-529 (3) (a) (652 SE2d 501) (2007) (amendment of OCGA § 

16-6-4 to reduce the punishment for sodomy with a 13-, 14-, or 15-

15 The legislature has followed the same approach with other sexual 

offenses. See, e.g., OCGA § 16-6-3 (b), (c) (person convicted of statutory rape is 

subject to provisions of OCGA § 17-10-6.2, but misdemeanor sentencing 

provision applies where victim was at least 14 but less than 16 years old); 

OCGA § 16-6-5 (b) (c) (person convicted of enticing a child for indecent purposes 

is subject to provisions of OCGA § 17-10-6.2, but misdemeanor sentencing 

provision applies where victim was at least 14 but less than 16 years old); 

OCGA § 16-6-5.2 (person convicted of second-degree improper contact by 

employee or agent, person in position of trust, or foster parent is subject to 

provisions of OCGA § 17-10-6.2, but misdemeanor sentencing provision applies 

where victim was at least 14 but less than 16 years old); OCGA § 16-12-100 (f) 

(person convicted of sexual exploitation of a child is subject to provisions of 

OCGA § 17-10-6.2, but misdemeanor sentencing provision applies to specified 

conduct where victim was at least 14 years old).
54

year-old child when the defendant is no more than four years older 

than the victim “appears to be a recognition by our General 

Assembly that teenagers are engaging in oral sex” and that such 

“teenagers should not be classified among the worst offenders 

because they do not have the maturity to appreciate the 

consequences of irresponsible sexual conduct and are readily subject 

to peer pressure”). See also Bunn v. State, 291 Ga. 183, 191 (2) (b) 

(728 SE2d 569) (2012) (“[I]n areas subject only to rational basis

review, the legislature may address a problem one step at a time, or 

even select one phase of one field and apply a remedy there, 

neglecting the others, without violating equal protection.” 

(punctuation omitted)).16

(d) For all these reasons, I conclude that Appellant is not 

16 The majority complains that I have not “adequately” explained the 

basis for the discrepancy between the misdemeanor sentencing exceptions for 

child molestation and aggravated child molestation based on sodomy. Maj. Op. 

at 27-28 (3) (d). I have not endeavored to explain this discrepancy because the 

underlying factual basis of Appellant’s as-applied challenge reveals that he is 

not similarly situated with a defendant subject to a charge of aggravated child 

molestation based on sodomy. The majority certainly takes a different view on 

that issue; I do not believe, however, that the majority means to suggest that 

the judiciary is obligated to articulate a rational basis for all legislative 

schemes that treat differently situated individuals differently.
55

similarly situated to defendants charged with and convicted of 

aggravated child molestation and that he has failed to carry his 

burden of proving that the law under which he was sentenced is not 

rationally related to a legitimate government purpose. His equalprotection claim should therefore fail,17 and his sentence is due to be 

affirmed.18 Accordingly, I respectfully dissent.

17 Given my conclusion above regarding Appellant’s equal-protection 

claim, I would be obligated to consider his argument that his sentence 

constitutes cruel and unusual punishment, which, like his equal-protection 

claim, focuses on the sentencing incongruity between OCGA § 16-6-4 (b) (2) 

and (d) (2). Setting aside the accuracy of Appellant’s understanding of the 

statute, assuming that he properly preserved this claim for review, and 

ignoring a possible error in sentencing that is favorable to the Appellant and 

that the parties have not presented for our consideration, I would reject this 

claim. See Jones, 307 Ga. at 510 (2) (b) (““[W]e do not review a claim of cruel 

and unusual punishment based upon a sentence a defendant could have 

received; instead, we review the sentence a defendant did receive.” (emphasis 

in original)).

18 While I would affirm the existing sentence, I note my concern with the 

remedy implemented by the majority, which directs the trial court on remand 

to resentence Appellant pursuant to OCGA § 16-6-4 (b) (2). That provision, of 

course, applies only in cases where the victim was “at least 14 but less than 16 

years of age” — a factual basis not present in this case. Thus, in order for 

Appellant to be sentenced under OCGA § 16-6-4 (b) (2), the majority has 

effectively blue penciled the statute, substituting “13” for “14” for purposes of 

Appellant’s case (and presumably all future cases). My concern with this 

approach — which proceeds without discussion or citation to authority —

arises from the settled notion that this Court is not empowered to rewrite a 

statute “to conform it to constitutional requirements”; that task is reserved to 

the General Assembly. United States v. Stevens, 559 U. S. 460, 481 (III) (D) 

(130 SCt 1577, 176 LE2d 435) (2010) (“We will not rewrite a law to conform it 
56

I am authorized to state that Justice LaGrua joins in this 

dissent.

to constitutional requirements, for doing so would constitute a serious invasion 

of the legislative domain[.]” (citations and punctuation omitted)). See also 

Domingue v. Ford Motor Co., 314 Ga. 59, 68 (2) (c) n.10 (875 SE2d 720) (2022) 

(“Under our system of separation of powers this Court does not have the 

authority to rewrite statutes.” (citation and punctuation omitted)). I confess 

that it is not entirely clear to me why a statute declared unconstitutional asapplied to a defendant can be judicially edited in a manner to preserve its 

application to that defendant. I raise this concern primarily for the purpose of 

noting that future cases following this case should include an analysis of the 

proper remedy in the event of a finding of unconstitutionality.