NORDAHL v. the STATE. , 811 S.E.2d 465 ( 2018 )

FOURTH DIVISION
DILLARD, C. J.,
RAY and SELF, 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.
http://www.gaappeals.us/rules
February 26, 2018
In the Court of Appeals of Georgia
A17A1360. NORDAHL v. THE STATE.
DILLARD, Chief Judge.
In 2013, the State charged Blane Nordahl, via indictment, with several counts
of burglary and one count of attempted burglary. Thereafter, it notified Nordahl that
it intended to seek recidivist punishment, under OCGA § 17-10-7, based on his
previous convictions in New York and New Jersey on charges of burglary and his
federal conviction on a charge of conspiracy to transport stolen goods. Nordahl
pleaded guilty to the charges, but challenged the State’s request for recidivist
punishment. Nevertheless, the trial court found Nordahl to be a recidivist and
sentenced him accordingly. On appeal, Nordahl contends that the trial court erred in
sentencing him under OCGA § 17-10-7, arguing that the State failed to provide
sufficient notice of its intent to seek recidivist punishment and failed to establish that
his prior federal conviction was a crime, which, if committed in Georgia, would be
considered a felony. Nordahl further argues that even if he could be considered a
recidivist, the trial court should have sentenced him under the recidivist provisions
of OCGA § 16-7-1 (b). For the reasons set forth infra, we affirm.
The record, which for the most part is undisputed, shows that on December 10,
2013, the State charged Nordahl and his former girlfriend, via indictment, with three
counts of burglary, one count of criminal attempt to commit burglary, and four counts
of burglary in the first degree.1 On January 22, 2014, the State notified Nordahl of its
intent to seek recidivist punishment under OCGA § 17-10-7 (a) and (c), relying upon
two prior convictions in New Jersey and one in New York. On June 16, 2016, the
State amended its notice, relying now upon a New York burglary conviction, a New
Jersey burglary conviction, and a federal conviction for conspiracy to transport stolen
goods.
1
The offenses charged in Counts 1 through 3, alleging burglary, and Count 4,
alleging criminal attempt to commit burglary, occurred before July 1, 2012, the
effective date of the amendment to OCGA § 16-7-1, which created the gradations of
first and second-degree burglary. See Ga. L. 2012, pp. 899, 949, §§ 3-1, 9-1.; see also
State v. Newton, 294 Ga. 767, 770 n.2 (755 SE2d 786) (2014). The offenses charged
in Counts 5 through 8, alleging burglary in the first degree, occurred after July 1,
2012.
2
On June 24, 2016, the trial court conducted a plea hearing, during which the
State provided the factual basis of the offenses charged in the indictment and
submitted evidence of Nordahl’s prior convictions, which it was relying upon in
support of its request that the court sentence him as a recidivist under OCGA § 17-10-
7 (a) and (c). Nordahl did not challenge the facts pertaining to the charged offenses,
but contended that he could not be sentenced as a recidivist under OCGA § 17-10-7,
arguing, inter alia, that his federal conviction for conspiracy to transport stolen goods
was not a crime that would be considered a felony under Georgia law. The State
challenged this contention, but at the conclusion of the hearing, the trial court did not
issue a ruling on the recidivism argument, and Nordahl did not enter a plea.
On February 10, 2017, the trial court conducted a second plea hearing,2 during
which Nordahl acknowledged the facts underlying the charges in the indictment,
testified that he understood the constitutional rights he was waiving by pleading
guilty to the charges, and ultimately pleaded guilty. Nevertheless, he again argued
that he could not be sentenced as a recidivist under OCGA § 17-10-7. But having
reviewed the record from the prior hearing, the trial court ruled that Nordahl was a
2
Judge Wendy Shoob presided over the first plea hearing, but she retired not
long thereafter. Consequently, Judge Jerry Baxter presided over the second hearing.
3
recidivist under OCGA § 17-10-7 (a) and (c). Accordingly, the trial court imposed a
sentence of 20 years, with 10 to serve and the balance suspended, on the burglary
charges in Counts 1 through 3; 10 years to serve on the criminal attempt to commit
burglary charge in Count 4; and 25 years, with 10 to serve and the balance suspended,
on the first degree burglary charges in Counts 5 through 8. The trial court further
ordered that all the sentences were to run concurrently. This appeal follows.
In the context of a criminal conviction, “a sentence is void if the court imposes
punishment that the law does not allow.”3 And this is true even for defendants who
plead guilty because “a defendant who knowingly enters into a plea agreement does
not waive the right to challenge an illegal and void sentence.”4 Importantly, whether
a defendant was properly sentenced as a recidivist under OCGA § 17-10-7 is subject
3
von Thomas v. State, 293 Ga. 569, 571 (2) (748 SE2d 446) (2013)
(punctuation omitted); accord Rooney v. State, 287 Ga. 1, 2 (2) (690 SE2d 804)
(2010).
4
Bell v. State, 294 Ga. 5, 8 (2) (749 SE2d 660) (2013); accord Nazario v. State,
293 Ga. 480, 487 (2) (d) (746 SE2d 109) (2013); see also Humphrey v. State, 297 Ga.
349, 350 (773 SE2d 760) (2015) (“[A]s we have indicated in a number of cases, the
consent of the parties cannot validate a void sentence.”).
4
to de novo review.5 With these guiding principles in mind, we turn now to Nordahl’s
specific claims of error.
1. Nordahl contends that the trial court erred in finding that the State provided
sufficient notice of its intent to seek recidivist punishment. Specifically, he claims
that the indictment should have included a recidivism count, arguing that any fact that
increases the penalty for a crime must be submitted to a jury. We disagree.
In Amendarez-Torres v. United States,6 the Supreme Court of the United States
held that the Sixth Amendment to the United States Constitution7 did not require that
a defendant’s recidivism be treated as an element of an offense to be determined by
5
See Frey v. State, 338 Ga. App. 583, 586 (3) (790 SE2d 835) (2016); see also
Mathis v. State, 336 Ga. App. 257, 257 (784 SE2d 98) (2016) (holding that because
appeal regarding whether defendant was properly sentenced as a recidivist is a
question of law, we review the trial court’s decision de novo).
6
523 U.S. 224 (118 SCt 1219, 140 LE2d 350) (1998).
7
U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the Assistance of Counsel
for his defence.”).
5
a jury.8 Subsequently, in Apprendi v. New Jersey,9 the Supreme Court reiterated that
“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.”10 And contrary to Nordahl’s argument, the
Supreme Court’s decision in Alleyne v. United States11 did not alter this holding.
There, the Court again noted that “Apprendi concluded that any ‘facts that increase
the prescribed range of penalties to which a criminal defendant is exposed’ are
elements of the crime.”12 But, importantly, in a footnote almost immediately
thereafter, the Court further acknowledged that in Almendarez-Torres, it recognized
that prior convictions were a narrow exception to this general rule but one that it was
not revisiting because the parties had not argued the issue.13 Consequently, here,
8
Amendarez-Torres, 523 U.S. at 247 (III).
9
530 U.S. 466 (120 SCt 2348, 147 LE2d 435) (2000).
10
Id. at 490 (IV) (emphasis supplied); accord Brown v. State, 284 Ga. 727, 729
(3) (670 SE2d 400) (2008).
11
___ U.S. ___ (133 SCt 2151, 186 LE2d 314) (2013).
12
Id. at 2160 (III) (B).
13
Id. at 2160 (III) (B) n.1.
6
Nordahl’s prior convictions did not constitute facts increasing his punishment which
were required to be submitted to a jury.14
Turning to Nordahl’s specific claim that recidivism must be alleged in the
indictment, previously, “[u]nder Georgia’s old two-step felony trial procedure where
sentence was imposed by the same jury which decided guilt, it was required that in
order for any prior convictions to be considered in aggravation of punishment, they
had to be included in the indictment.”15 But Georgia adopted judge sentencing in
1974,16 and since then, “it is not required that the prior convictions be included in the
indictment but only that the accused receive notice of the [S]tate’s intention to seek
recidivist punishment and of the identity of the prior convictions.”17 Toward that end,
14
See Brown, 284 Ga. at 729 (3) (holding that because defendant’s sentence
was enhanced by his prior conviction for armed robbery, the trial judge did not err in
overruling defendant’s general demurrer attacking the constitutionality of OCGA §
17-10-7 (b) as a violation of his right to a trial by jury).
15
Favors v. State, 182 Ga. App. 179, 179 (1) (355 SE2d 109) (1987); see
Riggins v. Stynchcombe, 231 Ga. 589, 592-93 (203 SE2d 208) (1974), disapproved
of by State v. Hendrixson, 251 Ga. 853, 854 (310 SE2d 526) (1984).
16
See OCGA § 17-10-2.
17
Favors, 182 Ga. App. at 179 (1); see Hendrixson, 251 Ga. at 854 (holding
that statutory provision for life imprisonment upon conviction of second offense is
not an independent offense which must be alleged in the indictment).
7
OCGA § 17-16-4 (a) (5)18 provides that “[t]he prosecuting attorney shall, no later than
ten days prior to trial, or at such time as the court orders but in no event later than the
beginning of the trial, provide the defendant with notice of any evidence in
aggravation of punishment that the [S]tate intends to introduce in sentencing.” And
our case law has held that “[i]n evaluating the sufficiency of the State’s notice, this
Court places substance over form.”19 Above all, the important requirement is that “the
defendant be given an unmistakable advance warning that the prior convictions will
be used against him at sentencing so that he will have enough time to rebut or explain
any conviction record.”20
18
The requirement for notice of intent to use prior convictions as aggravation
of punishment was included in OCGA § 17-10-2 until 2005, when it was slightly
revised and recodified in OCGA § 17-16-4 as part of the Criminal Justice Act of
2005. See Ga. L. 2005, p. 20, §§ 11, 13; Evans v. State, 290 Ga. App. 746, 747-48 (2)
n.5 (660 SE2d 841) (2008) (recognizing recodification). Nevertheless, “the correct
standard for evaluating sufficiency of notice has not changed under either version of
the statute[.]” Thomas v. State, 324 Ga. App. 898, 899 (752 SE2d 67) (2013)
(punctuation omitted).
19
Thomas, 324 Ga. App. at 899 (punctuation omitted); accord Evans, 290 Ga.
App. at 748 (2).
20
Thomas, 324 Ga. App. at 899 (punctuation omitted); accord Evans, 290 Ga.
App. at 748 (2).
8
Here, as previously mentioned, the State did not include a recidivism count in
the indictment, but it first provided Nordahl with notice of its intent to seek recidivist
punishment in January 2014. It later provided an amended notice in June 2016—one
week before Nordahl’s initial plea hearing and well before any potential trial, much
less the February 10, 2017 hearing, at which he ultimately pleaded guilty.
Additionally, the amended notice provided specific details regarding Nordahl’s
previous three convictions that the State intended to use in aggravation of
punishment, including the fact that those offenses were considered felonies in their
respective jurisdictions and would similarly be considered felonies in Georgia. And
although Nordahl maintains that the State’s notice was unclear because it indicated
longer terms of incarceration than the sentences that were actually imposed for the
New York and federal convictions, in doing so, he seeks to elevate the very form over
substance we have previously rejected.21 Furthermore, no prejudice to Nordahl has
21
See Thomas, 324 Ga. App. at 900-01 (holding that defendant’s claim that he
could not be sentenced as a recidivist because, although he and his counsel knew of
State’s intent, he did not receive formal notice, was an improper attempt to elevate
form over substance with regard to the statute’s notice requirement); Evans, 290 Ga.
App. at 748 (2) (holding that because evidence showed that defendant received
unmistakable advance warning that the State intended to use identified prior
convictions in aggravation of sentencing, the trial court did not err in finding that he
received sufficient notice).
9
“been alleged or shown, and harm as well as error must be shown to warrant
reversal.”22 Accordingly, the trial court did not err in finding that the State provided
sufficient notice of its intent to seek recidivist punishment.
2. Nordahl also contends that the trial court erred in finding that his prior
federal conviction for conspiracy to transport stolen goods was a crime, which, if
committed in Georgia, would be considered a felony under OCGA § 17-10-7. Again,
we disagree.
As previously noted, Nordahl was sentenced as a recidivist under OCGA § 17-
10-7 (a) and (c). OCGA § 17-10-7 (a) provides:
Except as otherwise provided in subsection (b) or (b.1) of this Code
section, any person who, after having been convicted of a felony offense
in this state or having been convicted under the laws of any other state
or of the United States of a crime which if committed within this state
would be a felony and sentenced to confinement in a penal institution,
commits a felony punishable by confinement in a penal institution shall
be sentenced to undergo the longest period of time prescribed for the
punishment of the subsequent offense of which he or she stands
22
Thomas, 324 Ga. App. at 901 (punctuation omitted); see Young v. State, 290
Ga. 392, 400-01 (9) (721 SE2d 855) (2012) (holding that defendant received adequate
prior notice of which of his previous convictions would be used against him in
sentencing him as a recidivist, even though defendant asserted that the paperwork
concerning those convictions had some errors).
10
convicted, provided that, unless otherwise provided by law, the trial
judge may, in his or her discretion, probate or suspend the maximum
sentence prescribed for the offense.23
Essentially, the statute imposes maximum sentences for “any person convicted of a
felony who was previously convicted under the laws of any other state of a crime
which if committed within this state would be a felony.”24 OCGA § 17-10-7 (c) then
provides:
Except as otherwise provided in subsection (b) or (b.1) of this Code
section and subsection (b) of Code Section 42-9-45, any person who,
after having been convicted under the laws of this state for three felonies
or having been convicted under the laws of any other state or of the
United States of three crimes which if committed within this state would
be felonies, commits a felony within this state shall, upon conviction for
such fourth offense or for subsequent offenses, serve the maximum time
provided in the sentence of the judge based upon such conviction and
shall not be eligible for parole until the maximum sentence has been
served.25
23
(Emphasis supplied).
24
Nelson v. State, 277 Ga. App. 92, 99 (5) (625 SE2d 465) (2005) (punctuation
omitted); accord Anderson v. State, 337 Ga. App. 739, 743 (2) (788 SE2d 831)
(2016); Johnson v. State, 281 Ga. App. 7, 10 (4) (635 SE2d 278) (2006); Woodson
v. State, 242 Ga. App. 67, 70 (4) (530 SE2d 2) (2000).
25
(Emphasis supplied).
11
Put simply, subsection (c) requires that “if the [defendant] has three such prior felony
convictions, upon a fourth felony conviction the person must serve the sentence
without the possibility of parole.”26
Citing Mathis v. United States,27 Nordahl argues that his federal conviction for
the offense of conspiracy to transport stolen goods28 was not a crime, which, if
committed in Georgia, would have been considered a felony under OCGA § 17-10-7
(a) and (c). But Nordahl’s reliance on Mathis is misplaced. At issue in Mathis was the
federal Armed Career Criminal Act (“ACCA”), which imposes a 15-year mandatory
minimum sentence on certain federal defendants who have three prior convictions for
a “violent felony,” including “burglary, arson, or extortion.”29 Then, in listing those
crimes, the Court noted that it had previously held that “Congress referred only to
their usual or (in our terminology) generic versions—not to all variants of the
offenses.”30 And “as to burglary—the offense relevant in this case—that Congress
26
Nelson, 277 Ga. App. at 99-100 (5) (punctuation omitted); accord Anderson,
337 Ga. App. at 743 (2).
27
___ U.S. ___ (136 SCt 2243, 195 LE2d 604) (2016).
28
See 18 USC § 2314.
29
See 18 USC § 924 (e) (2) (B) (ii); Mathis, 136 SCt at 2248 (1) (A).
30
Mathis, 136 SCt at 2248 (I) (A).
12
meant a crime containing the following elements: an unlawful or unprivileged entry
into a building or other structure, with intent to commit a crime.”31 The Court then
stated that “[t]o determine whether a prior conviction is for generic burglary (or other
listed crime) courts apply what is known as the categorical approach: They focus
solely on whether the elements of the crime of conviction sufficiently match the
elements of generic burglary, while ignoring the particular facts of the case.”32 The
Court further explained that
[a] crime counts as “burglary” under the Act if its elements are the same
as, or narrower than, those of the generic offense. But if the crime of
conviction covers any more conduct than the generic offense, then it is
not an ACCA “burglary”—even if the defendant’s actual conduct (i.e.,
the facts of the crime) fits within the generic offense’s boundaries.33
Turning to the specific facts of Mathis, the Supreme Court noted that the
defendant pleaded guilty to being a felon in possession of a firearm, and at
sentencing, the District Court imposed the ACCA’s 15-year minimum penalty based
31
Id. (punctuation omitted).
32
Id.33
Id.13
on the defendant’s five prior convictions for burglary under Iowa law.34 But the
Supreme Court found that Iowa’s burglary statute, which encompassed entry into any
building, structure, or land, water, or air vehicle, set out alternative means of fulfilling
its locational element, which were broader than the locational element of generic
burglary, i.e., entry into a building or other structure.35 And, in no uncertain terms, the
Supreme Court held that “a state crime cannot qualify as an ACCA predicate if its
elements are broader than those of a listed generic offense.”36 Given these particular
circumstances, the Court held that the defendant’s prior Iowa convictions for burglary
did not qualify as predicate violent felony offenses for 15-year mandatory minimum
sentence under the ACCA.37
Employing this “elements only” test, Nordahl argues that his prior conviction
for the offense of conspiracy to transport stolen goods38 cannot be considered a felony
34
Id. at 2250 (I) (B).
35
Id.
36
Id. at 2251 (II) (A); see, e.g., Taylor v. United States, 495 U.S. 575, 602 (IV)
(110 SCt 2143, 109 LE2d 607) (1990).
37
See Mathis, 136 SCt at 2251 (II) (A) (holding that, under the ACCA, a
sentencing judge may look only to “the elements of the offense, not to the facts of the
defendant’s conduct” (punctuation omitted)).
38
See 18 USC § 2314.
14
in Georgia because its elements are not the same as any Georgia felony offense,
including conspiracy to commit theft by receiving, as the State argues. But as
discussed supra, in Mathis, the Supreme Court was specifically directing federal
courts as to the manner in which to apply a federal law—the ACCA.39 And nothing
in the opinion can be construed as the Supreme Court of the United States mandating
that state courts similarly employ an “elements only” test when interpreting and
applying state-specific sentence-enhancing statutes.
Moreover, in construing Georgia’s recidivist statute, OCGA § 17-10-7, this
Court has held that “[t]he State bears the burden of showing that the foreign
convictions were for conduct which would be considered felonious under the laws of
this state.”40 Applying that test in this matter, we note that Nordahl was charged in the
United States District Court for the Eastern District of New York with conspiracy to
transport stolen goods under 18 USC § 2314, which provides: “Whoever transports,
transmits, or transfers in interstate or foreign commerce any goods, wares,
merchandise, securities or money, of the value of $5,000 or more, knowing the same
39
See supra notes 27 through 32.
40
Woodson v. State, 242 Ga. App. 67, 70 (4) (530 SE2d 2) (2000) (punctuation
omitted) (emphasis supplied); accord Davis v. State, 319 Ga. App. 501, 504 (2) (736
SE2d 160) (2012).
15
to have been stolen, converted or taken by fraud . . . [s]hall be fined under this title
or imprisoned not more than ten years, or both.” Subsequently, he pleaded guilty to
the federal charge, admitting that he stole more than $5,000 worth of silver from
various homes, which he burglarized, and that he transported that stolen property
across state lines.
As the State argued below (and similarly argues on appeal), the offense under
Georgia law that is most closely related to the aforementioned federal offense is theft
by receiving, which is committed when a person “receives, disposes of, or retains
stolen property which he knows or should know was stolen unless the property is
received, disposed of, or retained with intent to restore it to the owner.”41 And in
2000, when Nordahl committed the federal offense, if the value of the property that
was the subject of the theft exceeded $500, the defendant was subject to
imprisonment for up to ten years.42 Thus, such an offense was certainly punishable
41
See OCGA § 16-8-7 (a).
42
See former OCGA § 16-8-12 (a) (1) (2000) (“A person convicted of a
violation of Code Sections 16-8-2 to 16-8-9 shall be punished as for a misdemeanor
except . . . [i]f the property which was the subject of the theft exceeded $500.00 in
value, by imprisonment for not less than one nor more than ten years or, in the
discretion of the trial judge, as for a misdemeanor. . . .”); Baker v. State, 234 Ga. App.
846, 847 (507 SE2d 475) (1998) (holding that defendant’s theft by receiving of
lottery ticket valued at $5,000 constituted a felony); Holland v. State, 232 Ga. App.
16as a felony. Given these particular circumstances, in pleading guilty to the federal
offense, Nordahl admitted to conspiring to possess and transport property, which he
knew to be stolen and which was worth well in excess of $500. Consequently, in
submitting evidence of Nordahl’s guilty plea to the federal charge of conspiracy to
transport stolen goods, as well as the other two burglary charges, the State met its
statutory burden of proving that Nordahl was convicted of conduct which would be
284, 285 (2) (501 SE2d 829) (1998) (holding that defendant was found guilty of
unlawfully taking over $500 of grocery store’s property, which was a felony). We
further note that under OCGA § 16-4-8, “[a] person convicted of the offense of
criminal conspiracy to commit a felony shall be punished by imprisonment for not
less than one year nor more than one-half the maximum period of time for which he
could have been sentenced if he had been convicted of the crime conspired to have
been committed. . . .” Accordingly, while the sentencing relevant to conspiracy
offenses is less stringent, conspiracy to commit a felony is, nevertheless, also a
felony.
17
considered felonious under the laws of this state.43 And accordingly, the trial court did
not err in sentencing Nordahl as a recidivist under OCGA § 17-10-7 (a) and (c).
3. Nordahl further contends that the trial court erred in sentencing him under
OCGA § 17-10-7 (a) and (c) rather than the recidivist provisions of OCGA § 16-7-1
(b),44 which specifically pertain to repeated burglary convictions and, unlike OCGA
43
See Nelson, 277 Ga. App. at 100-01 (5) (a) (holding that even though the
definition of third-degree burglary under New York law is more expansive than the
definition of burglary under Georgia law, and the New York conviction for third-
degree assault at issue would be a misdemeanor under Georgia law, both New York
convictions were for conduct which would be considered felonious under the laws of
Georgia, and thus, the trial court did not err in sentencing defendant as a recidivist
under OCGA § 17-10-7 (c)). Cf. Davis, 319 Ga. App. at 504-05 (2) (holding that
because Georgia law contains no comparable provision to defendant’s federal
conviction, which criminalized the theft or possession of stolen mail per se, the State
bore the burden of showing that defendant’s conduct would be considered felonious
in Georgia and vacating defendant’s recidivist sentence when State failed to meet
such burden); Wallace, 175 Ga. App. 685, 687 (6) (333 SE2d 874) (1985) (holding
that it is not necessarily the case that the defendant’s federal conviction was for
conduct which would be considered felonious under the laws of Georgia, and that
conviction therefore could not be considered a prior felony conviction within the
meaning of OCGA § 17-10-7).
44
See OCGA § 16-7-1 (b) (“A person who commits the offense of burglary in
the first degree shall be guilty of a felony and, upon conviction thereof, shall be
punished by imprisonment for not less than one nor more than 20 years. Upon the
second conviction for burglary in the first degree, the defendant shall be guilty of a
felony and shall be punished by imprisonment for not less than two nor more than 20
years. Upon the third and all subsequent convictions for burglary in the first degree,
the defendant shall be guilty of a felony and shall be punished by imprisonment for
not less than five nor more than 25 years.”).
18
§ 17-10-7 (c), would not have mandated that he serve the maximum time provided in
the sentence. Once again, we disagree.
It is well established that when “any uncertainty develops as to which penal
clause is applicable, the accused is entitled to have the lesser of the two penalties
administered.”45 But that principle does not control here “unless OCGA § 16-7-1 (b)
and OCGA § 17-10-7 (a) are ‘conflicting provisions.’”46 And although any
ambiguities in criminal statutes “must be construed most favorably to the
defendant,”47 the Supreme Court of Georgia has explicitly held that OCGA § 16-7-1
(b) and OCGA § 17-10-7 can be read in harmony, finding that “the former specific
recidivist statute applies when the defendant is a habitual burglar having only prior
convictions for burglary, whereas the latter general recidivist statute applies when the
defendant is a habitual felon with prior convictions for other crimes.”48 Indeed, our
45
Brown v. State, 276 Ga. 606, 608-09 (2) (581 SE2d 35) (2003) (punctuation
omitted); accord Goldberg v. State, 282 Ga. 542, 543 (651 SE2d 667) (2007).
46
Goldberg, 282 Ga. at 543-44 (punctuation omitted).
47
Id. at 544 (punctuation omitted).
48
Id. at 547; accord Kennedy v. State, 302 Ga. App. 289, 290 (690 SE2d 255)
(2010); see Nelson, 277 Ga. App. at 101 (5) (b) (“The existence of prior felony
convictions in addition to those for burglary removes the case from the exclusive
provisions of OCGA § 16-7-1 (b) and allows for the application of the repeat offender
19
Supreme Court further noted that “[a]ny other holding fails to give effect to the
General Assembly’s [expressed textual] intent that subsection (e) of OCGA § 17-10-7
be given substantive consideration.”49 Thus,
[c]onstruing the two provisions together, the General Assembly intended
that a habitual burglar be given the benefit of the trial court’s sentencing
discretion, but it further intended, that a habitual burglar who is also a
habitual felon be subject to the imposition of the longest sentence
prescribed for the subsequent offense for which he or she was
convicted.50
Nordahl argues, inter alia, that because his federal conviction did not constitute
a crime, which, if committed in Georgia, would be considered a felony under OCGA
§ 17-10-7 (a) and (c), the only prior convictions submitted by the State as evidence
in aggravation of sentencing were burglaries. He, therefore, concludes that the trial
court erred in sentencing him under OCGA § 17-10-7 (a) and (c), rather than under
the burglary-specific recidivist sentencing provisions in OCGA § 16-7-1 (b). But as
we held in Division 2, supra, Nordahl’s federal conviction did, in fact, constitute
statute for sentencing purposes.” (punctuation omitted)).
49
Goldberg, 282 Ga. at 547.
50
Id.; accord Kennedy, 302 Ga. App. at 290; see Nelson, 277 Ga. App. at 101
(5) (b).
20
conduct which would be considered felonious under the laws of this state. As a result,
because Nordahl’s “conviction in this case represented not only his third burglary
conviction but also his [fourth] felony conviction, he fell squarely within the ambit
of OCGA § 17-10-7 (c).”51 Accordingly, the trial court properly sentenced Nordahl
as a recidivist under the general recidivist provisions contained that statute rather than
under OCGA § 16-7-1 (b).
For all these reasons, we affirm the trial court’s sentence.
Judgment affirmed. Ray and Self, JJ., concur.
51
Kennedy, 302 Ga. App. at 290; see Nelson, 277 Ga. App. at 101 (5) (b)
(holding that defendant’s prior felony conviction in New York for assault, in addition
to those for burglary, removes the case from the exclusive provisions of OCGA § 16-
7-1 (b) and allows for the application of the repeat offender statute, OCGA § 17-10-7
(c), for sentencing purposes); Stephens v. State, 259 Ga. App. 564, 565 (578 SE2d
179) (2003) (holding that in light of the introduction of a prior felony conviction for
forgery in addition to defendant’s prior conviction for burglary, defendant was, for
sentencing purposes, more than a mere two-time burglary offender under the specific
recidivist provisions of OCGA § 16-7-1 (b), but, rather, was a three-time felony
offender under the general recidivist provisions of OCGA § 17-10-7 (a)).
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