Ivan Cruz v. State , 815 S.E.2d 311 ( 2018 )

FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, 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
June 20, 2018
In the Court of Appeals of Georgia
A18A0203. CRUZ v. THE STATE. DO-008 C
DOYLE, Presiding Judge.
Ivan Cruz pleaded guilty pursuant to a negotiated guilty plea1 to three counts
of aggravated child molestation,2 aggravated sexual battery,3 five counts of child
molestation,4 sexual exploitation of a child,5 and two counts of solicitation of sodomy
1
The trial court issued an order of nolle prosequi as to one count of aggravated
sexual battery, OCGA § 16-6-22.2 (b), and one count of cruelty to children in the first
degree, OCGA § 16-5-70 (b).
2
OCGA § 16-6-4 (c).
3
OCGA § 16-6-22.2 (b).
4
OCGA § 16-6-4 (a) (1).
5
OCGA § 16-12-100 (b) (1).
from a child under 18.6 Proceeding pro se, Cruz appeals from the trial court’s denial
of his motion to vacate a void sentence, arguing that the trial court erred by denying
the motion because (1) his sentence does not comply with OCGA § 17-10-6.2 (2016);
and (2) the court lacked jurisdiction to impose a life sentence. For the reasons that
follow, we vacate in part the order and remand for resentencing consistent with this
opinion.
Following his entry of a negotiated guilty plea to twelve counts of a fourteen
count indictment, the trial court sentenced Cruz to life with twenty-five years to serve
in confinement and the balance on probation for the three counts of aggravated child
molestation and one count of aggravated sexual battery, which sentences the court
imposed concurrent to each other; and for the remaining eight charges the court
sentenced Cruz to twenty years in confinement to run concurrent to each other and
to the other twenty-five year sentences.
1. Cruz first argues that he must be re-sentenced on all counts because the
sentences are illegal and void. Specifically, Cruz argues that pursuant to New v.
6
OCGA § 16-6-15 (b).
2
State,7 his sentence is void because the trial court failed to impose a split sentence as
to each of his child molestation convictions as required by former OCGA § 17-10-6.2
(b) at that time.8 The State agrees with Cruz’s contention as to each charge except for
the two counts of solicitation of sodomy from a child under the age of 18.
As to Cruz’s convictions for aggravated child molestation and aggravated
sexual battery, the trial court correctly imposed a split sentence of 25 years’
imprisonment followed by lifetime probation.9 As for the convictions for child
7
327 Ga. App. 87, 106-109 (5) (755 SE2d 568) (2014). See also Barton v.
State, 338 Ga. App. 524, 525-526 (790 SE2d 538) (2016) (vacating sentence imposed
after defendant entered a negotiated guilty plea because the trial court failed to
impose a split sentence under OCGA § 17-10-6.2).
8
“[A]ny person convicted of a sexual offense shall be sentenced to a split
sentence which shall include the minimum term of imprisonment specified in the
Code section applicable to the offense.” OCGA § 17-10-6.2 (b) (2016). Ga. L. 2017,
§ 5/HB 341 (effective July 1, 2017) amended this Code section, but the amendment
does not affect this appeal.
9
See OCGA § 16-6-4 (d) (1) (“Except as provided in paragraph (2) of this
subsection, a person convicted of the offense of aggravated child molestation shall
be punished by imprisonment for life or by a split sentence that is a term of
imprisonment for not less than 25 years and not exceeding life imprisonment,
followed by probation for life, and shall be subject to the sentencing and punishment
provisions of Code [s]ections 17-10-6.1 and 17-10-7.”); OCGA § 16-6-22.2 (“A
person convicted of the offense of aggravated sexual battery shall be punished by
imprisonment for life or by a split sentence that is a term of imprisonment for not less
than 25 years and not exceeding life imprisonment, followed by probation for life,
and shall be subject to the sentencing and punishment provisions of Code [s]ections
3
molestation and sexual exploitation of a child, we vacate Cruz’s sentences and
remand to the trial court for resentencing consistent with the mandates of former
OCGA § 17-10-6.2 (b).10
With regard to the solicitation of sodomy from a child under the age of 18, that
statute is not enumerated in OCGA § 17-10-6.2 (a) (2016) as a statute to which the
sentencing provision found in subsection (b) applies; therefore, despite the
similarities of that crime to the other crimes enumerated in the statute, the trial court
was not required to apply the provision to those two counts.11 Accordingly, we vacate
Cruz’s sentences for child molestation and sexual exploitation of a child and remand
the case to the trial court for resentencing as to those counts.12
2. Cruz also argues that the trial court erred by denying his motion to vacate a
void sentence because the trial court was not authorized to impose a life sentence with
25 years in custody followed by lifetime probation. Because such a sentence falls
17-10-6.1 and 17-10-7.”).
10
See New, 327 Ga. App. at 109 (5).
11
See id. at 108 (5) (explaining that “criminal statutes must be strictly
construed against the State”) (punctuation omitted).
12
See Riggs v. State, 301 Ga. 63, 74 (2) (b) (799 SE2d 770) (2017).
4
within the statutory range of punishment for these charges, the trial court did not err
by denying Cruz’s motion as to these counts.13
Judgment vacated in part and case remanded. Dillard, C. J., and Mercier, J.,
concur.
13
See Prince v. State, 299 Ga. 888, 889-890 (793 SE2d 38) (2016). See also
OCGA § 16-6-4 (d) (1); OCGA § 16-6-22.2.
5