Michael Jason McHan v. State ( 2020 )

Court of Appeals
of the State of Georgia
ATLANTA, December 27, 2019
The Court of Appeals hereby passes the following order:
A20A0619. MICHAEL JASON MCHAN v. THE STATE.
In December 2015, Michael Jason McHan pleaded guilty to three counts of
child molestation. After he was sentenced, McHan filed a motion to correct a void
sentence in which he argued that the trial court was required to impose a split
sentence for his convictions under OCGA § 17-10-6.2 (b). The trial court agreed and
in January 2017 resentenced McHan to 20 years, to serve 19, on Count 1, 20 years on
probation on Count 3, to run concurrently to Count 1, and 20 years on probation on
Count 4, to run consecutively to Counts 1 and 3. McHan then filed another motion
to vacate void sentence, this time arguing that the sentence was void because the trial
court sentenced him to a term of imprisonment above the five-year mandatory
minimum set by OCGA § 17-10-6.2 (b). The trial court denied the motion and McHan
filed a direct appeal. This Court dismissed the appeal concluding that because
McHan’s sentence fell within the statutory range of punishment, he did not raise a
colorable argument that his sentence is void. See Case No. A18A0022 (decided
September 19, 2017).
In April 2019, McHan filed a “Motion to Amend Previous Claims” in which
he again asserted that the trial court failed to impose a split sentence under OCGA §
17-10-6.2 (b). The trial court denied the motion, and McHan filed a timely notice of
appeal. We, however, lack jurisdiction.
McHan’s present appeal is another void sentence claim that is identical to the
claim McHan raised prior to his resentencing in 2017. And as we noted in his prior
appeal, McHan’s 20-year sentence falls within the statutory range of punishment. See
OCGA § 16-6-4 (b) (1) (sentence for child molestation for a first-time offender is “not
less than five nor more than 20 years”). The sentence is also in compliance with
OCGA § 17-10-6.2 (b) (requiring a split sentence for persons convicted of a sexual
offense that includes a probated sentence of at least one year).
Accordingly, McHan has not raised a colorable argument that his sentence is
void, and the trial court’s denial of his motion is not subject to direct appeal. See
Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010). This appeal is
therefore DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta, December 27, 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.