Reed v. the State , 342 Ga. App. 466 ( 2017 )

FOURTH DIVISION
DILLARD, C. J.,
RAY, P. J. and SELF, J.
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.
http://www.gaappeals.us/rules
August 2, 2017
In the Court of Appeals of Georgia
A17A0975. REED v. THE STATE. SE-030
SELF, Judge.
Timmy Lane Reed pled guilty to one count each of trafficking in
methamphetamine, possession of marijuana with intent to distribute, and possession
of more than an ounce of marijuana. The trial court sentenced him to serve 15 years
in prison. Reed appeals, contending that the trial court erred in failing to sentence him
below the mandatory minimum pursuant to OCGA § 16-13-31 (g) (2) (A). We
disagree and affirm.
The facts in this case are not in dispute. In the summer of 2015, the Cherokee
County Multi Agency Narcotics Squad (“CMANS”) received a tip that Reed was
selling methamphetamine. On three separate occasions, beginning on July 23, 2015,
CMANS used an undercover agent and confidential informant to purchase from Reed
between 1.2 grams and 1.9 grams of methamphetamine for “a hundred dollars cash”
each time. Based on these three purchases, CMANS officers obtained a warrant to
search his residence. Officers recovered 211 grams of methamphetamine, 516 grams
of marijuana, and $4,678 in cash. At the time of the search, three individuals were
present in the residence, including Reed, Reed’s neighbor, and Reed’s girlfriend,
Sherri Satterfield. The neighbor was working on Reed’s vehicle and admitted to
having used methamphetamine provided to him by Reed that morning in exchange
for the work. Reed claimed his girlfriend knew nothing about the drugs found in the
home.
Reed admitted to possessing four to five ounces of methamphetamine and to
selling it “to make a buck” because he had lost his job. Reed told officers that he
made two sales every week and that he sold approximately four ounces every two to
three months. Officers arrested Reed and transported him to the Cherokee County
Adult Detention Center.
A week after his arrest, narcotics agents intercepted a phone call from the jail
between Reed and a family member discussing something buried in his yard. After
talking with the family member, officers obtained a second warrant to search the
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residence and discovered $22,433 and 11.8 grams of methamphetamine buried in a
container in the yard.
Reed and Satterfield were jointly indicted on one count each of trafficking in
methamphetamine, possession of marijuana with intent to distribute, and possession
of more than an ounce of marijuana. Reed pled guilty to all three charges and the trial
court sentenced him as a first offender to 15 years.
The trial court sentenced Reed under OCGA § 16-13-31 (e) (2), which
provides:
Any person who sells, delivers, or brings into this state or has
possession of 28 grams or more of methamphetamine, amphetamine, or
any mixture containing either methamphetamine or amphetamine, as
described in Schedule II, in violation of this article commits the felony
offense of trafficking in methamphetamine or amphetamine and, upon
conviction thereof, shall be punished as follows:. . . (2) If the quantity
of methamphetamine, amphetamine, or a mixture containing either
substance involved is 200 grams or more, but less than 400 grams, the
person shall be sentenced to a mandatory minimum term of
imprisonment of 15 years and shall pay a fine of $300,000.00.
The trial court declined Reed’s request for a deviation from the mandatory minimum
sentence. See OCGA § 16-13-31 (g) (2). It reasoned:
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There are a lot of instances where [s]tatutes that deny discretion to the
Court work – don’t always work to what might be the best justice in a
case.
This . . . particular [s]tatute has . . . eased somewhat . . . in providing
discretion, but it is a very limited discretion . . . and defined in Section
(2) (a) – (g) (2) (a).
And . . . I believe that the Governor has begun to re-examine . . . the
drug laws and to try and create a perhaps a more rational structure than
. . . before. I think the focus of that is . . . on addiction . . . and the harm
that addiction causes.
I also believe that mandatory minimums for dealing . . . don’t always
work the perfect justice, but I understand them because I see every day
the impact of what you peddle. I see children who are neglected, abused,
who die because of people who are so – whose lives are so wrecked by
methamphetamine that they can’t be parents. I see spousal abuse, theft,
and all manner of violence. I can’t even begin to explain to you what
kind of – how methamphetamine tears at the fabric of this community.
And this [s]tatute is designed with that in mind, not to punish the user.
There are [s]tatutes that punish users, to – that address the violation of
– of addiction and use. This [s]tatute does what – the only thing the
Legislature knows how to do, is to try to stop the flow of drugs into the
community from the source. And in reviewing the elements of deviation,
which I’m required to find all of them in order to deviate, it’s an and, not
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an or, at the top of the list, I don’t think I can find that you were not a
leader and . . . I really don’t think that the interest of justice would be
served by an imposition of a lesser sentence.
Reed contends that the trial court abused its discretion in failing to depart from
the 15-year mandatory minimum “based on quantity alone.” Reed asserts that under
OCGA § 16-13-31 (g) (2), more than mere quantity must be considered and, in
Reed’s case, there was no aggravating evidence. Specifically, the State presented no
evidence that Reed was a “leader” or “kingpin” or that he maintained an organized
methamphetamine distribution network; no firearms were involved; Reed had no
prior felonies; Reed’s pre-trial drug screens were all negative; and all the witnesses
who testified at the plea hearing on Reed’s behalf indicated that he was a productive
member of society. Finally, Reed claims the trial court utilized a mechanical
sentencing scheme “that prevented proper consideration” of the request for a
deviation.
We find no merit in these contentions. First, the record contains no evidence
that the trial court declined to deviate “based on quantity alone.” The record also fails
to support Reed’s mechanical sentencing claim. Such a claim requires “a clear
statement in the record that constitutes either a general refusal to consider [a
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deviation] or an erroneous expression of belief that the law does not permit the
exercise of such discretion.” (Citation and punctuation omitted.) McCullough v. State,
317 Ga. App. 853 (733 SE2d 36) (2012). Here, the trial court’s statements during the
sentencing hearing clearly indicate an awareness that it had the discretion to deviate
from the mandatory minimum sentence; there is nothing in the trial court’s statement
that indicates it was applying a mechanical policy or “that there was an outright
refusal to consider [Reed’s request to deviate].” Id. at 855.
The remainder of Reed’s arguments focus upon the statutory factors allowing
a trial court discretion to deviate. OCGA § 16-13-31 (g) provides three ways that a
trial court may impose a reduced or suspended sentence upon a defendant convicted
of violating the Code section. Subsection (1) allows the trial court to depart from the
mandatory minimum sentence if it determines that the defendant has provided
“substantial assistance in the identification, arrest, or conviction of any of his or her
accomplices, accessories, coconspirators, or principals.” OCGA § 16-13-31 (g) (1).
Subsection (3) allows for departure “when the prosecuting attorney and the defendant
have agreed to a sentence that is below such mandatory minimum.” OCGA § 16-13-
31 (3). Finally, subsection (2), which Reed contends applies in this case, provides:
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In the court’s discretion, the judge may depart from the mandatory
minimum sentence specified for a person who is convicted of a violation
of this Code section as set forth in subparagraph (B) of this paragraph
if the judge concludes that: (i) The defendant was not a leader of the
criminal conduct; (ii) The defendant did not possess or use a firearm,
dangerous weapon, or hazardous object during the crime; (iii) The
criminal conduct did not result in a death or serious bodily injury to a
person other than to a person who is a party to the crime; (iv) The
defendant has no prior felony conviction; and (v) The interests of justice
will not be served by the imposition of the prescribed mandatory
minimum sentence.
(Emphasis supplied.) OCGA § 16-13-31 (g) (2) (A).
This statute explicitly authorizes the trial court to exercise its discretion in
departing from the mandatory minimum sentence only if all five factors are present.
See Lastohkein v. State, 199 Ga. App. 555, 556 (2) (405 SE2d 554) (1991) (“[OCGA
§ 16-13-31 (g) (1)] does not by its terms require the judge to impose a reduced or
suspended sentence in the event a defendant has rendered such assistance but instead
merely authorizes him to do so.”). Contrary to Reed’s contention, the statute does not
state that the trial court must depart from the mandatory minimum sentence in the
event it finds the presence of all five factors. It also does not require consideration of
aggravating evidence to support a decision not to depart from the mandatory
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minimum sentence. The first four factors can be determined from objective evidence
in the record, but the fifth is, by its very nature, subjective. “[A]pplication of [an
interest of justice] standard to the peculiar circumstances of a particular case is a
matter committed to the sound discretion of the trial court, and we review the trial
court’s decision for abuse of discretion.” (Citations and punctuation omitted.)
Woodard Events v. Coffee House Indus., __ Ga. App. __ (Case No. A17A0306,
decided June 2, 2017).
In this case, the record from the plea hearing reflects that the trial court was
well aware of its discretion to depart from the mandatory minimum sentence and the
factors contained in OCGA § 16-13-31 (g) (2) (A). However, the trial court concluded
that the fifth factor – the “interests of justice” – did not weigh in favor of Reed. As
we cannot say that the trial court abused its discretion in reaching this conclusion, we
affirm.1
Judgment affirmed. Dillard, C. J., and Ray, P. J., concur.
1
Based upon our analysis of the interests of justice factor, we need not consider
Reed’s arguments as to the remaining four factors.
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