Cordova v. the State ( 2015 )

In the Supreme Court of Georgia
Decided: April 20, 2015
S15A0110. CORDOVA v. THE STATE.
HINES, Presiding Justice.
David Cordova, also known as David Cordoba, (hereinafter “Cordova”)
brings this pro se appeal from an order of the Superior Court of Long County
denying his “motion to vacate void sentence” following his entry of negotiated
pleas of guilty to malice murder, armed robbery, and kidnapping with bodily
injury, and his consequent sentencing to three terms of life in prison without the
possibility of parole. For the reasons which follow, we reverse and remand this
case with direction to the superior court.
On August 26, 1997, a Long County grand jury indicted Cordova along
with two other men for the August 16, 1995 malice murder, armed robbery, and
kidnapping with bodily injury of Mary Ann Prescott. On September 12, 1997,
the State filed a notice of intent to seek the death penalty for Cordova, alleging
as aggravating circumstances that the murder was done during the commission
of the felonies of armed robbery and kidnapping with bodily injury, and for the
purpose of receiving money or any other thing of monetary value as provided
in then OCGA § 17-10-30, which set forth the statutory aggravating
circumstances for imposition of the death penalty; it further alleged that the
kidnapping with bodily injury involved the death of the victim. On May 10,
1999, Cordova entered negotiated pleas of guilty to all three charges. On May
13, 1999, he was sentenced to life in prison without the possibility of parole for
malice murder, a consecutive term of life in prison without the possibility of
parole for the armed robbery, and a third term of life in prison without the
possibility of parole for the kidnapping, the sentence to be served concurrently
with the sentence for malice murder; the sentences on all counts were to run
concurrently with a federal sentence of Cordova’s. An application for sentence
review was filed on June 7, 1999, and on September 22, 1999, the Sentence
Review Panel responded that it was without jurisdiction to review Cordova’s
sentences. On February 3, 2014, Cordova filed the present pro se “motion to
vacate void sentence,” contending that his sentences are void “as a result of the
trial court’s failure to make a contemporaneous specification, beyond a
reasonable doubt, the statutory aggravating circumstance required by O.C.G.A.
2
§ 17-10-32.1 (b) authorizing imposition of a life sentence without possibility of
parole.” And, so they are.
Former OCGA § 17-10-32.11 applicable to the time frame of Cordova’s
sentencing provided,
a) Subject to the provisions of subsection (b) of this Code section,
any person who has been indicted for an offense for which the death
penalty or life without parole may be imposed may enter a plea of
guilty at any time after indictment, and the judge of the superior
court having jurisdiction may, in the judge's discretion, sentence the
person to life imprisonment or to any other punishment authorized
by law for the offense named in the indictment.
(b) Unless the district attorney has given notice that the state intends to
seek the death penalty pursuant to the Uniform Rules of the Superior
Courts, the judge shall sentence the defendant to life imprisonment. In
cases where such notice has been given, the judge may sentence the
defendant to death or life without parole only if the judge finds beyond a
reasonable doubt the existence of at least one statutory aggravating
circumstance as provided in Code Section 17-10-30.
(Emphasis supplied.)
This Court has determined that this criminal statute must be strictly
construed against the State, so that,
1
The statute was repealed by Georgia Laws 2009, Act 62, § 7, effective April 29, 2009. The
Act provided, however, that “the amendment or repeal of a Code section by this Act shall not affect
any sentence imposed by any court of this state prior to the effective date of this Act,” and that
OCGA § 17–10–32.1 “as it existed prior to the effective date of this Act shall apply to all offenses
committed on and before such date.” Ga. L.2009, pp. 223, 227, §§ 9, 11(a).
3
it is clear that a defendant who pleads guilty in a death penalty case
cannot be sentenced to life without parole unless the judge
contemporaneously makes a specific finding of a statutory
aggravating circumstance beyond a reasonable doubt.
Pierce v. State, 289 Ga. 893, 896 (3) (717 SE2d 202) (2011), quoting Hughes
v. State, 269 Ga. 819, 821(2) (504 SE2d 696) (1998). That did not happen in
this case; the plea court did not specify an aggravating circumstance at the time
of sentencing, so the statutory requirement was not met. Id.Consequently, Cordova’s imposed sentences of life without the possibility of
parole are void and must be vacated. Id.Accordingly, the superior court’s order denying Cordova’s “motion to
vacate void sentence” is reversed with the direction that his sentences of life in
prison without the possibility of parole be vacated.2
Judgment reversed and case remanded with direction. All the Justices
concur.
2
As this Court explained in Pierce v. State, in this circumstance, the defendant, upon remand,
can be resentenced to life without the possibility of parole if the resentencing court then complies
with the requirements of former OCGA § 17–10–32.1, that is, if the resentencing court finds the
existence of at least one aggravating circumstance as provided in OCGA § 17–10–30 and the
applicable case law; it is then within the resentencing court’s discretion whether to impose a sentence
of life in prison without the possibility of parole. Pierce v. State at 896-897 (3).
4