BROWN v. the STATE. , 814 S.E.2d 738 ( 2018 )

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, 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
May 3, 2018
In the Court of Appeals of Georgia
A18A0655. BROWN v. THE STATE.
MCMILLIAN, Judge.
On March 13, 2013, appellant Johnny M. Brown entered a negotiated guilty
plea to five counts of child molestation. The trial court sentenced Brown to ten years
to serve on Count 1 and probation on the remaining counts, for a total sentence of
forty years, with the first ten years to be served in confinement and the remainder to
be served on probation. On September 21, 2017, Brown filed a motion to correct void
sentence based on the trial court’s alleged failure to follow the requirements of former
OCGA § 17-10-6.2 (b) in sentencing him.1 The trial court denied Brown’s motion,
and Brown filed this appeal. As more fully set forth below, we now vacate Brown’s
sentence and remand for resentencing.
1
We note that a void sentence may be attacked at any time, even in cases where
the sentence was entered on a guilty plea, and that a direct appeal will lie from the
denial of a motion to correct or vacate a void sentence where the defendant raises a
colorable claim that the sentence is in fact void. McCranie v. State, 335 Ga. App. 548,
555 (4) (782 SE2d 453) (2016).
Under the version of the statute in effect in 2013 when Brown was sentenced,2
the trial court was required to sentence Brown to a “split-sentence” consisting of a
minimum term of imprisonment, as specified in the Code section for the offense of
child molestation, followed by an additional probated sentence of at least one year on
each offense. Former OCGA § 17-10-6.2 (b); Riggs v. State, 301 Ga. 63, 64 (1) (799
SE2d 770) (2017); Jackson v. State, 338 Ga. App. 509, 510-11 (790 SE2d 295)
(2016); McCranie v. State, 335 Ga. App. 548, 555 (4) (782 SE2d 453) (2016);
Daniels v. State, 344 Ga. App. 190, 191-92 (__ SE2d ___) (2018). Here, the trial
court sentenced Brown to confinement only on Count 1 and to probation only on the
remaining four counts.3 The State concedes that Brown was not sentenced as required
by former OCGA § 17-10-6.2 (b), but points out that the trial court had discretion
under subsection (c) of relevant version of that code section to deviate from the
mandates of subsection (b) under certain circumstances, and urges us to remand to the
2
Brown was sentenced on April 12, 2013, and he moved to correct his void
sentence on September 21, 2017. We note that a void sentence may be vacated at any
time and a challenge to such a sentence is not waived. “[A] sentence is void if the
court imposes punishment the law does not allow.”New v. State, 327 Ga. App. 87,
106 (5) (755 SE2d 568) (2014).
3
The sentencing provisions applicable to the offense of child molestation are
set out in OCGA § 16-6-4 (b).
2
trial court so that the trial court can make findings concerning whether it had reason
to deviate in this case. However, subpart (2) of former OCGA § 17-10-6.2 (c) requires
the trial court to issue a written order setting forth the reasons for any deviation in
sentencing pursuant to this section, and the trial court did not enter such an order in
this case. See Jackson, 338 Ga. App. at 510-11; McCranie, 335 Ga. App. at 555-56
(4); Daniels, 344 Ga. App. at 191-92. In the absence of anything in the record to
indicate that the trial court intended to deviate from the mandatory minimum as
allowed by the applicable version of OCGA § 17-10-6.2 (c),4 the proper remedy is to
vacate the sentence and remand for resentencing.
Although Brown does not raise as error the probation only sentences for child
molestation,5 we also note that former OCGA § 17-10-6.2 (b) required that the
sentence for any person convicted of a sexual offense include the mandatory
minimum term of imprisonment specified in the code section for that offense and “no
4
After Brown was sentenced, OCGA § 17-10-6.2 (c) was amended to allow a
trial court to deviate from the mandatory minimum when the prosecuting attorney and
the defendant have agreed to a sentence below the minimum. Although it appears that
there may have been such an agreement in this case, that version of the statute did not
go into effect until after Brown was sentenced. See Ga. L. 2013, p. 233, § 9.
5
See Hughes v. State, 341 Ga. App. 594, 597-98 (3) (802 SE2d 30) (2017)
(appellate court is required to correct a void sentence, and its illegality may not be
waived).
3
portion of the mandatory minimum sentence imposed shall be suspended, stayed, or
probated . . .” Former OCGA § 17-10-6.2 (b). As we explained above, there was no
indication that the trial court entered written findings necessary to deviate from the
mandatory minimum. Therefore, those sentences are void for this additional reason.
Accordingly, we vacate Brown’s sentence and remand to the trial court for entry of
a new sentence on each count as required by former OCGA § 17-10-6.2 (b).6
Sentence vacated and case remanded for resentencing. Barnes, P. J., and
Reese, J., concur.
6
The State correctly points out that on its face it appears that Brown is seeking
a harsher sentence but opines that Brown’s motive is actually to withdraw his guilty
plea, not to be resentenced. See Kaiser v. State, 285 Ga. App. 63, 69 (1) (646 SE2d
84) (2007); see also Blackwell v. State, 299 Ga. 122 (786 SE2d 669) (2016).
4