Billy Edgar Murrell v. State ( 2021 )

FOURTH DIVISION
DILLARD, P. J.,
MERCIER and COLVIN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
May 20, 2021
In the Court of Appeals of Georgia
A21A0495. MURRELL v. THE STATE.
DILLARD, Presiding Judge.
Billy Murrell appeals from the trial court’s grant of the State’s motion to
“clarify terms of sentence,” which the State filed after learning that Murrell was being
considered for parole. Specifically, Murrell argues that the trial court’s “clarification”
of his sentence (1) violated the separation of powers by subverting the parole board’s
prerogative, and (2) violated due process by imposing a more severe sentence on
remand. And because the trial court lacked jurisdiction to issue an order on the State’s
motion, we vacate that order and remand this case with direction.
Following a trial by jury, Murrell was convicted of child molestation, sexual
battery (two counts), aggravated assault, public indecency, false imprisonment,
terroristic threats, and stalking (two counts). He was sentenced in 2004 to 35 years’
imprisonment. And on appeal from those convictions, we vacated only the conviction
for terroristic threats.1 A remittitur was then filed in the trial court on April 15, 2013,
and approximately one week later, the trial judge entered an order to “[l]et the
judgment of the Court of Appeals of Georgia be made the judgment of this court.”
But then, over five years later (on September 12, 2018), the same judge issued an
“Amended Order on Remittitur,” clearly vacating the conviction for terroristic threats.
In July 2020, the State was notified that Murrell was “being tentatively granted
parole.” The State immediately contacted the parole board and Georgia Department
of Corrections, and the parole board confirmed it was considering Murrell for parole.
At that point, in August 2020, the State filed its Motion to Clarify Terms of Sentence
because it believed the parole board’s interpretation of Murrell’s sentence was
incorrect.
1
See Murrell v. State, 317 Ga. App. 310 (730 SE2d 675) (2012) (physical
precedent only as to Div. 1).
2
Following a hearing on the motion,2 the trial court—then presided over by a
new judge—issued an order granting the State’s motion for clarification. In doing so,
the court instructed that the original May 7, 2004 sentencing order intended that
Murrell be incarcerated for 35 years and that, even after the count for terroristic
threats was vacated, “the remainder of the sentence that was left was intended by the
Court to be 30 years to serve.” Murrell appeals from this order.
Murrell argues the trial court’s order violates the separation of powers by
subverting the parole board’s prerogative to calculate sentences, and that the court’s
order violated due process by imposing a more severe sentence on remand, which is
2
A transcript from this hearing was not included with the appellate record
transmitted to this Court, which did include three transcripts from Murrell’s 2004
trial. But in his notice of appeal, Murrell did not request that any transcripts be
included, which he was required to do by OCGA § 5-6-37 if he wished for a specific
transcript to be reviewed. See OCGA § 5-6-37 (“In addition, the notice [of appeal]
shall state whether or not any transcript of evidence and proceedings is to be
transmitted as a part of the record on appeal.”). And the specification that “‘nothing’
is to be omitted from the record would not [imply] that the transcript is to be included,
[because] the appellant is required to state whether the transcript will be filed, in
addition to designating any portion of the record to be omitted.” Steadham v. State
of Ga., 224 Ga. 78, 80 (1) (159 SE2d 397) (1968); accord Tempo Carpet Co. v.
Collectible Classic Cars of Ga., Inc., 166 Ga. App. 564, 564 (305 SE2d 26) (1983).
Nor did the State request to supplement the record with the missing transcript,
although it repeatedly cites to this hearing in its brief. And when no transcript is
included in the appellate record, we “must assume that the evidence was sufficient to
support the judgment.” Tempo Carpet Co., 166 Ga. App. at 564 (punctuation
omitted).
3
presumptively prejudicial. And having considered these arguments, we conclude that
the trial court lacked jurisdiction to issue an order on the State’s motion to clarify
Murrell’s sentence.
According to the State, following the vacation of Count 13, the parole board
interpreted Count 12 as running concurrently with Counts 1, 2, 7, 8, 9, and 10. The
State contends that by interpreting Count 12 to run concurrently with the earlier
counts in the absence of Count 13, Murrell would receive a “10 year ‘discount’ [that]
is clearly not what the sentencing [c]ourt intended.” And when the State contacted
both the parole board and the Georgia Department of Corrections, those entities
advised the State “to seek clarification of the sentence and the intent of the sentencing
court” in writing.
In its order on the State’s motion, the trial court agreed with the State,
concluding that—even after the count for terroristic threats was vacated—“the
remainder of the sentence that was left was intended by the [c]ourt to be 30 years to
serve,” and clarified that “the [c]ourt intended for Count 12 to be consecutive to
Count 13 as well as to all counts to which Count 13 had been consecutive.” But
Murrell notes that the State had “multiple opportunities” to seek clarification of his
sentence if it was ambiguous, and it failed to do so in a timely manner. In response,
4
the State contends that there was no reason to seek clarification of Murrell’s
sentence—which it believed to be perfectly clear—until being advised to do so by the
parole board and Department of Corrections.3 This argument is a nonstarter. Even if
the State filed its motion at the behest of the Department of Corrections, which is
governed by the terms of OCGA 17-10-10 when computing sentences,4 the trial court
lacked authority to consider the motion to clarify Murrell’s sentence given that it was
filed nearly two years after the most recent order in that case.
To be sure, a sentencing court “retains jurisdiction to correct a void sentence
at any time.”5 But the issue before the trial court was not whether Murrell’s sentence
was void, and thus its jurisdiction was not (and could not be) based upon that
3
Cf. Harper v. State, 270 Ga. App. 376, 376-77 (606 SE2d 599) (2004)
(addressing argument that trial court failed to clarify defendant’s sentence when trial
court concluded that it was “clear and unambiguous” after defendant received
conflicting notices from the Parole Board as to his eligibility for parole).
4
See OCGA § 17-10-10 (a) (“Where at one term of court a person is convicted
on more than one indictment or accusation, or on more than one count thereof, and
sentenced to imprisonment, the sentences shall be served concurrently unless
otherwise expressly provided therein.”); OCGA § 17-10-10 (d) (“This Code section
shall govern and shall be followed by the Department of Corrections in the
computation of time that sentences shall run.”).
5
Rooney v. State, 287 Ga. 1, 2 (2) (690 SE2d 804) (2010) (punctuation
omitted).
5
principle. Nor did the trial court have jurisdiction under OCGA § 17-10-1 (f), which
provides that
[w]ithin one year of the date upon which the sentence is imposed, or
within 120 days after receipt by the sentencing court of the remittitur
upon affirmance of the judgment after direct appeal, whichever is later,
the court imposing the sentence has the jurisdiction, power, and
authority to correct or reduce the sentence and to suspend or probate all
or any part of the sentence imposed.
Furthermore, it is well established that “[a] motion in arrest of judgment must be
made during the term at which the judgment was obtained.”6 And here, the State filed
6
OCGA § 17-9-61 (b); see Witherspoon v. State, 304 Ga. 306, 307 (818 SE2d
512) (2018) (“We do not reach the merits of [appellant’s] arguments on appeal,
because the untimeliness of his motions precluded any relief. OCGA § 17-9-61 (b)
requires that a motion in arrest of judgment ‘be made during the term in which the
judgment was obtained.’ . . . . [A]ppellant filed his motions . . . almost 27 years after
the expiration of the term in which he was convicted. Because [appellant’s] motions
were untimely, the trial court lacked authority to grant any relief, and it properly
disposed of his motions on this basis.” (punctuation and citation omitted)); Mullins
v. State, 291 Ga. 634, 635 (732 SE2d 83) (2012) (“Appellant’s motion in arrest of
judgment was untimely by almost 25 years.”); Myers v. State, 311 Ga. App. 668, 670
(2) (716 SE2d 772) (2011) (“[T]he trial court denied [the] motion because it was filed
over five years after judgment was entered, which [appellant] does not dispute was
untimely because a motion in arrest of judgment ‘must be made during the term at
which the judgment was obtained.’ And because [the] motion was untimely, it is not
subject to appellate review.” (footnote omitted)); see also OCGA § 17-9-60 (“All
motions to arrest a judgment must be made to the court by which the judgment was
rendered, and the opposite party must have reasonable notice of such motions.”);
6
its motion to “clarify” Murrell’s sentence almost two years after the term of court
expired and well past 120 days of the court’s receipt of the remittitur.7 As a result, the
trial court lacked jurisdiction to consider the motion and should have dismissed it.8
OCGA § 17-9-61 (a) (“When a judgment has been rendered, either party may move
in arrest thereof for any defect not amendable which appears on the face of the record
or pleadings.”).
7
See OCGA § 15-6-3 (33) (providing that the Floyd Superior Court’s terms of
court commence as follows: “Second Monday in January, March, July, and September
and first Monday in May and November”). Cf. Andrew L. Parks, Inc. v. SunTrust
Bank, 248 Ga. App. 846, 847 (545 SE2d 31) (2001) (noting, in context of a civil
appeal, that “although a trial judge has ‘inherent power during the same term of court
in which the judgment was rendered to revise, correct, revoke, modify or vacate such
judgment, even upon his own motion, for the purpose of promoting justice and in the
exercise of a sound legal discretion,’ this authority does not extend beyond the same
term of court, unless a motion to modify or vacate, et cetera, was filed within the
same term of court[,]” and recognizing that “[a] motion to clarify is not a motion
authorized by [the Civil Practice] Act” and the trial court had no authority to grant the
motion to clarify when it sought to change appellant’s substantive rights (citation
omitted)).
8
See Whipkey v. State, 352 Ga. App. 746, 748 (1) (835 SE2d 740) (2019) (“As
a general rule, a trial court lacks jurisdiction to modify any judgment—including a
defendant’s sentence—outside the term of court in which that judgment was
entered.”); Patterson v. State, 347 Ga. App. 105, 106-07 (1) (817 SE2d 557) (2018)
(“The General Assembly has established a specific time frame during which a trial
court has jurisdiction to freely modify a criminal sentence. Pursuant to OCGA §
17-10-1 (f), a court may correct or reduce a sentence during the year after its
imposition, or within 120 days after remittitur following a direct appeal, whichever
is later. Once this statutory period expires, a trial court may only modify a void
sentence.” (punctuation omitted)); Richardson v. State, 334 Ga. App. 344, 346 (779
SE2d 406) (2015) (“[Appellant] filed his motion to correct his sentence within one
7
Additionally, because the trial court lacked jurisdiction,9 its actions unlawfully
increased Murrell’s sentence.10 So, while it is true that Murrell’s original sentence (as
imposed in 2004) required Count 12 to run consecutively with Count 13, when the
trial court vacated Count 13, it did not then clarify that Count 12 would thereafter run
year of being resentenced, and, therefore, his motion was filed within the statutory
period prescribed by OCGA § 17-10-1(f).”); Barthell v. State, 286 Ga. App. 160, 161
(648 SE2d 412) (2007) (“[I]n order for a trial court to have the power to exercise the
subject matter jurisdiction to correct a judgment outside a term of court, the judgment
must be, in fact, void. If the judgment is not void, a trial court has no further subject
matter jurisdiction outside the term of court and the petition must be dismissed.”
(punctuation omitted)).
9
Cf. Schamber v. State, 152 Ga. App. 196, 198 (3) (262 SE2d 533) (1979) (“It
is clear that a court cannot change a sentence by increasing it. However, we find no
increase in punishment here. By its subsequent act in the same term, the trial court
merely clarified the relation of its sentence to one previously imposed by a different
court for an unrelated offense, something the court should have done but
inadvertently omitted to do when sentencing defendant. In finding no error we apply
the general rule that ‘judgments of a court are within its breast until the end of the
term, and the sentence may be amended at any time during the term and before
execution has begun.’” (citation omitted) (emphasis supplied)).
10
See Harris v. State, 261 Ga. 859, 860-61 (2) (413 SE2d 439) (1992) (holding
that “the sentencing court may not increase a sentence once the defendant begins
serving it without violating the prohibition against double jeopardy in both the
Georgia and Federal Constitutions”). See generally United States v. Jones, 722 F2d
632, 637-38 (III) (11th Cir. 1983) (construing United States v. DiFrancesco, 449 U.S.
117, 136 (IV) (d) (101 SCt 426) (1980) as standing for the proposition that “the
Double Jeopardy Clause respects the defendant’s ‘legitimate expectations’ as to the
length of his sentence”).
8
consecutively with Counts 1, 2, 7, 8, 9, and 10. Thus, under OCGA§ 17-10-10 (a),
when “at one term of court a person is convicted . . . on more than one count thereof,
and sentenced to imprisonment, the sentences shall be served concurrently unless
otherwise expressly provided therein.” And as previously noted, this particular Code
Section governs and must be followed by “the Department of Corrections in the
computation of time that sentences shall run.”11 Accordingly, by later “clarifying” that
Count 12 was—after the vacation of Count 13—to run consecutively with the earlier
counts instead of concurrently, the trial court unlawfully increased Murrell’s
sentence.12
11
OCGA § 17-10-10 (d).
12
See Schamber v. Newsome, 696 FSupp 1506, 1509 (ND Ga. 1988) (“There
is no dispute that the sentencing court could have imposed a consecutive sentence
when [appellant] was sentenced initially. However, because, under Georgia law,
[appellant] was sentenced initially to a concurrent sentence, the court could not,
consistent with the federal constitution, increase his sentence under the circumstances
presented. . . . . [Appellant] had begun serving his sentence when it was enhanced by
the sentencing court because of an error attributable solely to the court. [Appellant’s]
expectations as to his initial sentence were legitimate, and his resentencing therefore
violated his double jeopardy rights.”); see also supra note 10.
9
Even so, the State appears to hinge the trial court’s jurisdiction to consider its
motion to clarify Murrell’s sentence on OCGA § 17-7-1 (5),13 OCGA § 17-17-13,14
and a statement from an attorney with the Department of Corrections that it needed
something in writing that would clarify the trial court’s intent. But neither an indirect
request from the Department of Corrections seeking clarification of a sentence by the
trial court nor the ability of victims to submit written objections to the grant of parole
bestows the trial court with jurisdiction to consider the State’s motion to “clarify” the
terms of Murrell’s sentence.15 Thus, the trial court should have dismissed the State’s
motion.
13
See OCGA 17-17-1 (5) (“The General Assembly hereby finds and declares
it to be the policy of this state that victims of crimes should be accorded certain basic
rights just as the accused are accorded certain basic rights. These rights include: . .
. [t]he right to file a written objection in any parole proceedings involving the
accused[.]”).
14
See OCGA § 17-17-13 (“The State Board of Pardons and Paroles shall give
20 days’ advance notification to a victim whenever it considers making a final
decision to grant parole, release a defendant for a period exceeding 60 days, or grant
a pardon; and the board shall provide the victim with an opportunity to file a written
objection to such action.”).
15
Cf. Veasley v. State, 272 Ga. 837, 839 (537 SE2d 42) (2000) (“[P]arties
cannot confer jurisdiction by consent.” (punctuation omitted)).
10
For all these reasons, we vacate the trial court’s order and remand for it to
dismiss the State’s motion to clarify Murrell’s sentence.16
Judgment vacated and case remanded with direction. Mercier and Colvin, JJ.,
concur.
16
See supra note 8.
11