Lori Ann Abernathy v. State ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 12, 2018
The Court of Appeals hereby passes the following order:
A19A0004. LORI ANN ABERNATHY v. THE STATE.
In 2002, a jury found Lori Ann Abernathy guilty of one count of incest (Count
Five), five counts of child molestation (Counts Six through Ten), and twelve counts
of sexual exploitation of children (Counts Eleven through Twenty-Two). Abernathy
committed the offenses from 1999 to 2001. The trial court sentenced Abernathy to 20
years’ confinement on Count Five; 10 years’ confinement and 10 years’ probation on
Count Six, to run consecutively to Count Five; 20 years’ confinement on Count
Seven, to run concurrently with Count Six; 20 years’ confinement on Counts Eight,
Nine, and Ten, to run concurrently with Count Five; and 1 year of confinement on
Counts Eleven through Twenty-Two, to run concurrently with Count Five. We
affirmed Abernathy’s convictions in an unpublished opinion on appeal. See Case No.
A07A1954 (affirmed Mar. 26, 2008).
In 2017, Abernathy filed a motion to correct void sentence, claiming that
(1) her sentences on Counts Five, Seven, Eight, Nine, and Ten were void because
they were not split sentences and did not include a term of probation, as required by
OCGA § 17-10-6.2 (b), and (2) her sentence on Count Six was improperly ordered
to run consecutively to Count Five. The trial court denied the motion, and Abernathy
filed this appeal.
An appeal may lie from an order denying a motion to correct or vacate a void
sentence if the defendant raises a colorable claim that the sentence is, in fact, void or
illegal. See Harper v. State, 286 Ga. 216, 216 n.1 (686 SE2d 786) (2009); Burg v.
State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). A sentence is void only if it
imposes punishment that the law does not allow. Crumbley v. State, 261 Ga. 610, 611
(1) (409 SE2d 517) (1991). “Motions to vacate a void sentence generally are limited
to claims that – even assuming the existence and validity of the conviction for which
the sentence was imposed – the law does not authorize that sentence, 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).
Abernathy has failed to raise a colorable claim that her sentences are void.
First, regarding her split-sentence claim, OCGA § 17-10-6.2 was first enacted in
2006, and therefore it has no bearing on the trial court’s sentencing of Abernathy. See
Richardson v. State, 334 Ga. App. 344, 347 (1) (779 SE2d 406) (2015) (“Because
OCGA § 17-10-6.2 was not in effect when [the defendant] committed the charged
crime[s], the trial court committed no error in failing to apply its provisions[.]”); see
also Searcy v. State, 162 Ga. App. 695, 698 (2) (291 SE2d 557) (1982) (this Court
applies the sentencing law in effect at the time the crime was committed).
Accordingly, Abernathy’s “sentence[s] [are] not void because [they were] authorized
by the law as it existed at the time of [her] conviction.” McClendon v. State, 287 Ga.
App. 515, 516 (651 SE2d 820) (2007).
Second, regarding Abernathy’s challenge to the imposition of a consecutive
sentence, a trial court has discretion to impose consecutive or concurrent sentences
for separate offenses, as long as the sentence for each offense is within the statutory
limits. See Rooney v. State, 287 Ga. 1, 3-6 (3) (690 SE2d 804) (2010); see also
OCGA § 17-10-10 (a); Dowling v. State, 278 Ga. App. 903, 904 (630 SE2d 143)
(2006). Here, each of Abernathy’s sentences are within the statutory limits. See
OCGA §§ 16-6-22 (1999-2001); 16-6-4 (1999-2001); 16-12-100 (1999-2001).
Because Abernathy has not raised a valid void-sentence claim, we lack
jurisdiction to consider her appeal. See Roberts v. State, 286 Ga. 532, 532 (690 SE2d
150) (2010); Harper, 286 Ga. at 218 (2). Accordingly, this appeal is hereby
DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
09/12/2018
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.