Anthony Cunningham v. State ( 2015 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 06, 2015
The Court of Appeals hereby passes the following order:
A16A0335. ANTHONY CUNNINGHAM v. THE STATE.
In 2007, Anthony Cunningham pled guilty to six counts of armed robbery and
one count each of false imprisonment and kidnapping. The trial court sentenced him
to 20 years’ imprisonment. Cunningham did not file a direct appeal from his
judgment of conviction.
In May 2015, Cunningham filed a “Motion to Vacate, Set Aside, or Correct
Sentence,” in which he complained of defects in his plea proceedings. The trial court
denied Cunningham’s motion, and he filed this direct appeal. We lack jurisdiction.
A direct appeal may lie from an order denying a motion to vacate or correct a
void sentence, but only if the defendant raises a colorable claim that the sentence is,
in fact, void. See Harper v. State, 286 Ga. 216, 217 n.1 (686 SE2d 786) (2009); Burg
v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). “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). Thus, when a sentence is within the statutory range
of punishment, it is not void. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483)
(2004).
“[A] petition to vacate or modify a judgment of conviction is not an appropriate
remedy in a criminal case.” Harper, supra at 218 (1). Any appeal from an order
denying or dismissing such a motion must be dismissed. See id. at 218 (2); see also
Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150) (2010).
Cunningham does not argue that his sentence exceeded the legal limits; rather,
he claims that his conviction and sentence are void because he did not orally plead
guilty in open court to the charges for which he was indicted. Thus, Cunningham has
not raised a valid void-sentence claim. See von Thomas, supra at 572 (2); Jones, 278
supra at 670. To the extent that Cunningham’s motion could be construed seeking
to vacate or modify his conviction, it likewise is subject to dismissal. See Roberts,
supra at 532; Harper, supra at 218 (1) & (2). For these reasons, this appeal is hereby
DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
11/06/2015
Clerk’s Office, Atlanta,____________________
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.