William Berry v. State ( 2022 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
February 10, 2022
The Court of Appeals hereby passes the following order:
A22A0779. WILLIAM BERRY v. THE STATE.
In 2014, William Berry pled guilty to three counts of armed robbery, three
counts of aggravated assault, three counts of possession of a firearm during the
commission of a felony, and two counts of possession of a firearm by a convicted
felon. For the purpose of sentencing, the trial court merged each aggravated assault
charge into its related armed robbery charge. In 2021, Berry filed a motion to correct
an illegal sentence, arguing that the trial court had improperly merged his armed
robbery and firearm possession charges. Related to this motion, Berry subsequently
filed motions for a calendar date, to “cease case transfer,” for “altered plea relief,” and
for resentencing. The trial court denied these motions, finding that Berry’s sentence
was not void. He appeals.
Under OCGA § 17-10-1 (f), a court may modify a sentence during the year
after its imposition or within 120 days after remittitur following a direct appeal,
whichever is later. Frazier v. State, 302 Ga. App. 346, 347-348 (691 SE2d 247)
(2010); Burg v. State, 297 Ga. App. 118, 118 (676 SE2d 465) (2009). Once this
statutory period expires, as it had here when Berry filed his motion, a trial court may
modify a sentence only if it is void. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483)
(2004). And a sentence is void only when the trial court imposes punishment that the
law does not allow, “most typically because it exceeds the most severe punishment
for which the applicable penal statute provides.” von Thomas v. State, 293 Ga. 569,
572 (2) (748 SE2d 446) (2013). A direct appeal does not lie from the denial of a
motion to vacate a void sentence filed outside the statutory time period unless the
motion raises a colorable claim that the sentence is, in fact, void. Frazier, 302 Ga.
App. at 348.
Here, Berry has failed to raise a colorable claim that his sentence is void.
Although he asserts that the trial court improperly merged his armed robbery and
firearm possession charges, the sentence sheet shows that the court actually merged
his armed robbery and aggravated assault charges. Thus, Berry’s factual premise is
incorrect. Because he has not raised a colorable void sentence claim, this appeal is
hereby DISMISSED. See Frazier, 302 Ga. App. at 348-349.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
02/10/2022
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.