Roslynn L. Ford-Calhoun v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
April 26, 2019
The Court of Appeals hereby passes the following order:
A19A1772. ROSLYNN L. FORD-CALHOUN v. THE STATE.
In February 2009, following a jury trial, Roslynn L. Ford-Calhoun was
convicted of armed robbery (Count 1), four counts of aggravated assault (Counts 2-5),
and false imprisonment (Count 6). The trial court granted in part her motion for new
trial and entered a judgment of acquittal as to one of aggravated assault convictions
(Count 3). On direct appeal, this Court reversed another aggravated assault
conviction (Count 5) but affirmed the remaining convictions. See Ford-Calhoun v.
State, 327 Ga. App. 835 (761 SE2d 388) (2014). In October 2014, after remitittur,
the trial court entered an amended sentence of 20 years with 15 to serve in
confinement. Four years later, in November 2018, Ford-Calhoun filed a motion to
vacate a void sentence, arguing that her amended sentence is void. The trial court
dismissed Ford-Calhoun’s motion, finding that her amended sentence is below or
equal to the aggregate of the original sentence as required by State v. Hudson, 293
Ga. 656 (748 SE2d 910) (2013). Ford-Calhoun then filed this appeal.
Under OCGA § 17-10-1 (f), a court may modify a sentence during the year
after its imposition or within 120 days after remittitur following a direct appeal,
whichever is later. Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010).
Once, as here, this statutory period expires, a trial court may modify only a void
sentence. Id. A sentence is void if the court imposes punishment that the law does
not allow. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). When a
sentence falls within the statutory range of punishment, it is not void and is not
subject to modification beyond the time provided in § 17-10-1 (f). See id. Moreover,
a direct appeal does not lie from the denial of a motion to modify a sentence filed
outside the statutory time period unless the motion raises a colorable claim that the
sentence is, in fact, void. Frazier, 302 Ga. App. at 348.
Here, Ford-Calhoun’s sentence for each conviction is within the statutory
range. See OCGA § 16-8-41 (sentence for armed robbery is not less than ten nor
more than twenty years); OCGA § 16-5-21 (sentence of aggravated assault is not less
than one not more than 20 years); OCGA § 16-5-41 (sentence for false imprisonment
is not less than one nor more than ten years). Moreover, it does not appear that the
aggregate re-sentence for Ford-Calhoun exceeded the aggregate of the original
sentence. See Hudson, 293 Ga. at 662 (overruling the count-by-count approach to re-
sentencing and adopting the “aggregate approach”).1 Thus, Ford-Calhoun’s sentence
is not void, and she is not entitled to appellate review of the trial court’s dismissal of
her motion. Accordingly, this appeal is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
04/26/2019
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.
1
Ford-Calhoun’s original sentence was: “Twenty years as to count one, three,
and five. Twenty years with five to serve as to count two to run consecutive to count
one. Twenty years as to count four with five years to serve to run consecutive to
count two. Ten years as to count six.” She was required to serve “ten years ct.1, five
years ct. 2, 3, 4, 5, [and] five years ct. 6.”