John Hughes v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
April 23, 2019
The Court of Appeals hereby passes the following order:
A19A1608. JOHN HUGHES v. THE STATE.
In 2011, following a jury trial, John Hughes was convicted of hijacking a motor
vehicle, armed robbery, attempted kidnapping, obstruction, and marijuana possession,
and the trial court sentenced him to a total term of 20 years to serve in confinement.
We affirmed Hughes’s convictions on appeal after the trial court denied his motion
for new trial. See Hughes v. State, 323 Ga. App. 4 (746 SE2d 648) (2013). Since that
time, Hughes has filed multiple post-convictions motions, including the instant
January 2019 “Motion to Vacate Void Sentences: To Correct and Modify Sentence.”
The trial court denied the motion on January 22, 2019, and Hughes then filed the
instant direct appeal on February 26, 2019. We, however, lack jurisdiction.
First, a notice of appeal must be filed within 30 days of entry of the order
sought to be appealed. OCGA § 5-6-38 (a). The proper and timely filing of a notice
of appeal is an absolute requirement to confer jurisdiction on this Court. Rowland v.
State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Because Hughes filed his notice
of appeal 35 days after entry of the trial court’s order, his appeal is untimely.
Second, even if Hughes’s appeal had been timely filed, this Court would still
lack jurisdiction. “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). And
a direct appeal may lie from an order denying a motion to vacate or correct a void
sentence only if the defendant raises a colorable claim that the sentence is, in fact,
void. See Harper v. State, 286 Ga. 216, 217 (1), n. 1 (686 SE2d 786) (2009); Burg v.
State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). Hughes alleges that his
sentence is void because the same facts were used to establish his convictions for
hijacking a motor vehicle, armed robbery, and attempted kidnapping. Hughes’s claim,
in essence, is that the court should have merged his convictions. See, e.g., Bonner v.
State, 308 Ga. App. 827, 830 (2) (709 SE2d 358) (2011) (“The key question in
determining whether a merger has occurred is whether the different offenses are
proven with the same facts.”) (punctuation omitted). Hughes’s merger claim is a
challenge to his convictions, and not his sentences, and thus does not state a valid
void-sentence claim. See Williams v. State, 287 Ga. 192, 193-194 (695 SE2d 244)
(2010). To the extent that Hughes’s motion could be construed as seeking to vacate
or modify his convictions, “a petition to vacate or modify a judgment of conviction
is not an appropriate remedy in a criminal case,” Harper, 286 Ga. at 218 (1), and 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).
For these reasons, we lack jurisdiction to consider this appeal, which is hereby
DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
04/23/2019
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.