Duron v. the State , 340 Ga. App. 74 ( 2017 )

FIRST DIVISION
DOYLE, C. J.,
BARNES, P. J., and ANDREWS, 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
January 19, 2017
In the Court of Appeals of Georgia
A16A1942. DURON v. THE STATE.
ANDREWS, Judge.
Following Carlos Duron’s convictions for trafficking in cocaine (OCGA § 16-
13-31 (a) (1))1 and conspiracy (trafficking in cocaine) (OCGA § 16-13-33), the
Superior Court of Gwinnett County sentenced Duron to two concurrent terms of life
in prison. See OCGA § 16-13-30 (d). Duron appeals, arguing that the trial court
imposed a void sentence because the maximum sentence permitted for Duron’s
convictions was 30 years in confinement. See OCGA § 16-13-31 (h). For the reasons
that follow, we affirm.
1
“Any person who sells, manufactures, delivers, or brings into this state or who
is in possession of 28 grams or more of cocaine or of any mixture with a purity of 10
percent or more of cocaine, as described in Schedule II, in violation of this article
commits the felony offense of trafficking in cocaine. . . .”
In July of 2010, following a jury trial, the Superior Court of Gwinnett County
entered a judgment of conviction against Duron for trafficking in cocaine (“2010
trafficking conviction”) which Duron appealed to this Court. See Duron v. State, 325
Ga. App. 41 (752 SE2d 112) (2013) (“Duron I”). In December of 2011, while
Duron’s motion for new trial remained pending in Duron I, a second Gwinnett
County jury found Duron guilty of trafficking in cocaine (“2011 trafficking
conviction”) and conspiracy (trafficking in cocaine).2 During sentencing for the 2011
convictions, the State argued that Duron’s 2010 trafficking conviction authorized a
life sentence for Duron on the 2011 trafficking conviction. See OCGA § 16-13-30
(d). The trial court sentenced Duron to life in prison on both the trafficking and
conspiracy convictions to be served concurrently with the sentence imposed in Duron
I.
In September of 2015, Duron filed a motion to correct a void sentence arguing
that his 2010 trafficking conviction was not yet final at the time he was sentenced for
2
On March 19, 2015, we affirmed Duron’s 2011 trafficking conviction and the
conspiracy conviction. See Duron v. State, 332 Ga. App. 133 (771 SE2d 28) (2015)
(“Duron II”).
2
the 2011 trafficking conviction3 and that, as a result, the 2010 conviction could not
be used to enhance his sentence on the 2011 trafficking conviction.4 The trial court
granted Duron’s motion, vacated Duron’s sentence, and scheduled a resentencing
hearing.5 Following Duron’s resentencing hearing, the trial court again sentenced
Duron to two concurrent terms of life in prison.6 This appeal followed.
OCGA § 16-13-30 (b) makes it unlawful for any person “to manufacture,
deliver, distribute, dispense, administer, sell, or possess with intent to distribute any
controlled substance.” See also OCGA § 16-13-31 (a) (1) (trafficking in cocaine).
OCGA § 16-13-31 (h) provides that “[a]ny person who violates any provision of
[OCGA § 16-13-31] shall be punished as provided for in the applicable mandatory
3
This Court affirmed Duron’s 2010 trafficking conviction on November 10,
2013. See Duron I, 325 Ga. App. at 50.
4
The State agreed with Duron’s motion and conceded that the original sentence
for Duron’s 2011 trafficking conviction was void.
5
See Covington v. State, 231 Ga. App. 851, 852 (501 SE2d 37) (1998).
6
Duron does not argue that the life sentences imposed at resentencing were
improper because his 2010 trafficking conviction was not final at the time he was
originally sentenced on the 2011 trafficking conviction. See Covington, 231 Ga. App.
at 852 (1) (“The trial court was authorized by OCGA § 16-13-30 (d) to resentence
Covington to life imprisonment for possession and trafficking, as the two earlier
cocaine sales convictions were final at the time of resentencing.”).
3
minimum punishment and for not more than 30 years of imprisonment. . . .” However,
“[u]pon conviction of a second or subsequent offense, [the defendant] shall be
imprisoned for not less than ten years nor more than 40 years or life imprisonment.”
OCGA § 16-13-30 (d). Duron contends that his 2010 trafficking conviction pursuant
to OCGA § 16-13-31 does not qualify as “an actual conviction under [OCGA §] 16-
13-30 (b) to trigger the recidivist provisions of [OCGA §] 16-13-30 (d)” and enhance
his sentence for the 2011 trafficking conviction.
We resolved this question adversely to Duron in Gilbert v. State. 208 Ga. App.
258, 262 (1) (430 SE2d 391) (1993). Relying upon OCGA § 16-13-30 (d), we
affirmed a defendant’s life sentence for possession of cocaine with intent to distribute
following his prior conviction for trafficking in cocaine. Id. at 262 (1). We noted that
OCGA § 16-13-30 (b) prohibits the manufacture, delivery, distribution,
dispensing, administering, selling, or possession with intent to distribute
any amount of a controlled substance and provides a greater penalty than
(a). OCGA § 16-13-31 aims at a yet more serious offense and calls it
‘trafficking.’ The penalties are still greater. There are a number of ways
the legislature might have defined trafficking. The definition might have
been given in terms of dealing in a large number of drug transactions.
Perhaps the amount of money involved could have been the test. Instead,
the amount of controlled substance was chosen as the basis for
4
distinguishing the crime of trafficking from the somewhat less serious
crimes.
Id. at 260-261 (1) (quoting Bassett v. Lemacks, 258 Ga. 367, 370 (370 SE2d 146)
(1988)). Moreover, we observed that
statutes must be construed so as to make sense. Here, it is nonsensical
to conclude that a prior conviction for selling a smaller quantity of
cocaine would constitute a prior offense under OCGA § 16-13-30 (d),
but that the sale of a greater amount of the drug would not trigger the
provisions of that statute. Certainly, the legislature did not intend such
an illogical result and we will not so interpret the statute.
Accordingly, we found that
[t]o conclude that Gilbert’s prior conviction under OCGA § 16-13-31
does not trigger the recidivist provisions of OCGA § 16-13-30 (d) would
lead to an illogical result since Gilbert’s first conviction was for a more
serious version of the offenses outlined in OCGA § 16-13-30 (b).
Id. at 260 (1).
Contrary to Duron’s apparent argument, Gilbert is indistinguishable. Like
Gilbert, Duron was first convicted of trafficking in cocaine and received a 30-year
sentence pursuant to OCGA § 16-13-31 (h). Thereafter, while Gilbert was convicted
of the lesser offense of possession of cocaine with intent to distribute, Duron received
5
a second conviction for the same “greater” offense of trafficking in cocaine.
Therefore,
[t]o accept [Duron’s] contention that his more serious conviction under
OCGA § 16-13-31, for a crime which is different only in that it is more
serious than those listed in OCGA § 16-13-30 (b), does not constitute a
prior conviction so as to trigger the life sentence provisions of OCGA
§ 16-13-30 (d) is to ignore the intent of the legislature. Clearly, the
legislature did not intend that violators of OCGA § 16-13-31 be exempt
from the severe punishment of OCGA § 16-13-30 (d).
Id. at 262 (1).7 See also Covington v. State, 231 Ga. App. 851, 852 (1) (501 SE2d 37)
(1998) (“Fruitless is the argument that the sentence of life imprisonment for
trafficking was unauthorized because it is an offense under OCGA § 16-13-31 rather
than OCGA § 16-13-30 (b).”). Finally, on many occasions since Gilbert, we have
affirmed sentences of life imprisonment in which a defendant’s second conviction
involved a trafficking offense, further confirming the applicability of OCGA § 16-13-
30 (d) to trafficking convictions. See Howard v. State, 234 Ga. App. 260, 261 (2)
(506 SE2d 648) (1998); Covington, 231 Ga. App. at 852 (1); Brundage v. State, 231
Ga. App. 478, 480 (4) (499 SE2d 408) (1998). See also Smiley v. State, 241 Ga. App.
7Similarly, Duron’s argument concerning the rule of lenity is without merit.
See Gilbert, 208 Ga. App. at 261 (1).
6
712 (527 SE2d 585) (2000). Accordingly, we conclude that a first conviction for
trafficking under OCGA § 16-13-31 may be used to enhance a second conviction for
trafficking pursuant to OCGA § 16-13-30 (d). See Gilbert, 208 Ga. App. at 262 (1).
As a result, “[g]iven our conclusion that [Duron’s] prior conviction constituted a
violation of OCGA § 16-13-30 (b), we find that the life sentence was properly
imposed.”8 Id.
Judgment affirmed. Doyle, C. J., and Barnes, P. J., concur.
8
Likewise, Duron’s sentence of life in prison for conspiracy (trafficking in
cocaine) was authorized. See OCGA §§ 16-13-30 (d), 16-13-33 (“Any person who
attempts or conspires to commit any offense defined in this article shall be, upon
conviction thereof, punished by imprisonment not exceeding the maximum
punishment prescribed for the offense, the commission of which was the object of the
attempt or conspiracy.”).
7