Coleman Riley v. State ( 2020 )

FIFTH DIVISION
REESE, P. J.,
MARKLE and COLVIN, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
September 9, 2020
In the Court of Appeals of Georgia
A20A1446. RILEY v. THE STATE. MA-049C
MARKLE, Judge.
Following a jury trial, Coleman Riley was convicted of rape (OCGA § 16-6-1),
and giving false information to a law enforcement officer (OCGA § 16-10-25), and
was sentenced as a recidivist to life imprisonment. He now appeals from the denial
of his motion for new trial, arguing that (1) the trial court erred in (a) sua sponte
granting a new trial at the conclusion of his original trial; (b) not seeking a
competency hearing; and (c) allowing evidence of similar transactions; (2) the
evidence was insufficient to convict him; and (3) he was improperly sentenced as a
recidivist. After a thorough review of the record, we affirm.1
1
This case has taken a lengthy route to this Court. Riley was convicted in 2014,
and has had several different attorneys between his arrest, first and second trials, the
motion for new trial, and the various amendments to the motion for new trial, before
Viewing the evidence in the light most favorable to the verdict, Jackson v.
Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the record shows that,
in May 2013, the victim spent the evening at a friend’s house, where she had been
drinking. At some point, she left the house and was walking home when she
encountered Riley, and they started talking. Riley offered the victim a beer, and she
accepted, following him to his rooming house.
Once in Riley’s room, the two began smoking drugs as Riley paced around the
room. He started pulling at the victim’s top expecting sex, saying, “well you done
drunk my beer and smoked my stuff.” The victim told him no and the two started to
“tussle.” The victim scratched Riley along his back and arms, and they both ended up
on the mattress on the floor. During the struggle, the victim threw some condoms at
Riley, which made him angry, and he threw her onto the bed, pinned her down, and
removed her pants. He penetrated her vagina with his penis as the victim told him to
stop. Afterward, Riley said, “I guess you’re going to go back and tell now.”
The victim was able to leave, found someone to help her, and was transported
to the hospital. At the hospital, the victim spoke with police and gave a description
his appeal was docketed in this Court in 2020. Appellate counsel notes that in the
interim, Riley’s file has been lost and he has been unable to access certain documents.
2
of her attacker, and she later picked his photograph out of a lineup. The doctor who
examined the victim found abrasions between her vagina and anus, consistent with
the use of force, and noted that the victim stated she had been choked.
Based on the victim’s account, an Atlanta police detective went to the rooming
house where the victim said the attack occurred. There, he encountered a man
matching the victim’s description. When the detective asked the defendant his name,
the defendant responded, “Tony Riley.” The detective ran the name through the
database and found no match. The defendant also gave the detective the names Tony
Davis and Riley Coleman, with different birth dates and social security numbers.
None of these names matched the database. The detective brought the defendant to
the station, where fingerprints identified the defendant as Riley Coleman.
In his interview with police, Riley initially denied knowing the victim, and he
stated he got the scratches on his arm from poison ivy.2 He later admitted that he
knew the victim and that he gave her $10 to buy drugs; they smoked the drugs
together; and then he paid her $5 for sex. He explained that the victim scratched him
when he refused to give her more money. Riley also admitted giving police a false
name when he first encountered the officer at the rooming house.
2
Riley’s interview was admitted into evidence and played for the jury.
3
Based on this attack, Riley was charged with rape and giving false information
to a law enforcement officer. Following a four-day trial, the jury convicted him of
both counts. However, at the conclusion of his initial trial, the trial court realized it
had committed error when it permitted an employee of the district attorney’s office
to sit on the jury. The trial court initially stated that it intended to declare a mistrial,
but later clarified that it could not grant a mistrial after the jury had rendered its
verdict and, instead, sua sponte granted a new trial under OCGA § 5-5-40. The trial
court then stated that the new trial would begin the following Monday, to which trial
counsel responded, “fine.”
At the second trial, the victim again testified to the attack. The State then called
several women whom Riley had attacked in the past, as well as the police officers
who investigated those prior incidents.3 The State also introduced Riley’s prior
conviction for rape and aggravated sodomy, as well as a prior indictment for
aggravated assault and sexual battery. The first victim testified that, in 2012, Riley
grabbed her breasts while she was at his apartment playing cards, and that, when she
3
The State gave proper notice of this evidence. Prior to the testimony, Riley
objected to the police officer’s testimony as hearsay, improper bolstering, and
cumulative. The trial court overruled the objection, but gave the jury a limiting
instruction before the officer testified.
4
tried to leave, Riley grabbed her and placed his hands around her neck. As a result of
this incident, Riley pled guilty to misdemeanor sexual battery.
The second victim testified that, in 1999, Riley grabbed her as she was walking
to the train, offered her money for sex, and, after she agreed, Riley placed both hands
around her neck, pushed her to the ground, and forced her to have sex. The third
victim stated that, in 2004, she met Riley and agreed to smoke crack cocaine with
him, but, as she went with him, he grabbed her around the neck, choked her, pulled
her pants down, and forced her to perform oral sex before penetrating her vaginally.
Riley was still on top of her when police arrived. Riley ultimately pled guilty to
aggravated assault with intent to rape in connection with this attack.
At the close of the second trial, the jury again convicted Riley, and the trial
court sentenced him as a recidivist to life imprisonment for the rape, with a
concurrent 12-month sentence for giving false information to a law enforcement
officer.4
Riley filed a motion for new trial, arguing that the trial court erred in granting
the mistrial after the verdict in the first trial and ordering a new trial before the
4
The State gave proper notice of its intent to seek recidivist sentencing under
OCGA § 17-10-7 (a) and (c).
5
transcript was prepared; it was error to admit the similar transaction evidence; and
trial counsel was ineffective in failing to seek a competency hearing.
At the motion hearing, Riley testified that he had spent time in a mental health
facility, and trial counsel testified that she had not seen anything that would have
supported a mental health defense. The trial court denied the motion for new trial, and
Riley now appeals.
1. In his first enumeration of error, Riley argues that the trial court committed
plain error when it declared a de facto mistrial after the jury’s verdict in the first trial,
and that he has been prejudiced as a result, especially due to the unavailability of the
transcripts prior to his second trial. He asserts that this Court is not bound by the trial
court’s nomenclature, and can look at the substance of the trial court’s order to
determine that the trial court granted a de facto mistrial. He further contends that it
was error to schedule the second trial to begin the following Monday, as opposed to
placing it on the docket under OCGA § 5-5-48, and that this quick rescheduling
confirms that the trial court granted a mistrial instead of a new trial. He argues that
allowing the trial court’s ruling to stand would essentially nullify the rule against a
post-verdict mistrial. We are not persuaded.
6
It is well-settled that a trial court cannot grant a mistrial after the jury renders
its verdict. State v. Sumlin, 281 Ga. 183, 184 (1) (637 SE2d 36) (2006); State v.
Chapman, 322 Ga. App. 82, 83 (744 SE2d 77) (2013). But, OCGA § 5-5-40 (h)
authorizes the trial court to sua sponte grant a new trial within 30 days from entry of
the judgment.
Here, although the trial court initially stated that it would grant a mistrial due
to the error of seating an improper juror, it ultimately recognized that it could not
grant a mistrial post-verdict.5 The trial court then sua sponte granted a new trial.
Contrary to Riley’s argument, there is no confusion about the trial court’s
actions. The nomenclature and the substance of the trial court’s order are the same;
the trial court exercised its authority under OCGA § 5-5-40 (h) to sua sponte grant a
new trial. Chapman, 322 Ga. App. at 83.
Moreover, when the trial court announced its ruling, and scheduled the second
trial to begin the following week, trial counsel responded that it was “fine.” Having
acquiesced to the decision, Riley cannot complain of it on appeal. Hornbuckle v.
5
Under Beam v. State, 260 Ga. 784, 785-786 (2) (400 SE2d 327) (1991),
overruled on other grounds by Willis v. State, 304 Ga. 686, 706 (11) (a) (820 SE2d
640) (2018), full-time employees of district attorney’s offices must be excused from
the jury pool if challenged for cause.
7
State, 300 Ga. 750, 756 (5) (797 SE2d 113) (2017); Robinson v. State, 299 Ga. 648,
651 (3) (791 SE2d 13) (2016) (“This matter has not been preserved for purposes of
appeal. Because Robinson acquiesced in the trial court’s action by voicing
satisfaction with it, Robinson cannot complain about the trial court’s ruling.”).
Regardless, Riley has offered nothing to show how he was prejudiced by the trial
court’s ruling or the prompt re-trial. Cf. OCGA § 5-5-50 (“The first grant of a new
trial shall not be disturbed by an appellate court unless the appellant shows that the
judge abused his discretion in granting it and that the law and facts require the verdict
notwithstanding the judgment of the presiding judge.”).
To the extent that Riley argues it was error to order a new trial without the
benefit of the transcripts from the first trial, and that he was entitled to free transcripts
to prepare for the second trial, he cannot show any harm or prejudice. A trial court
may rule on a motion for new trial without the benefit of the transcripts. See OCGA
§ 5-5-40 (c); Holmes v. State, 180 Ga. App. 787, 788 (4) (350 SE2d 497) (1986); see
also Uniform Superior Court Rule 41.1 (trial court may hear motion for new trial
prior to preparation of transcripts). Moreover, a review of the transcript from the
second trial shows that counsel was able to question witnesses about prior testimony
8
to bring out any inconsistencies even without the benefit of the transcript from the
first trial.
Finally, as to Riley’s contention that the trial court erred in placing the new
trial on the docket the following week, we discern no error. Under OCGA § 5-5-48,
“[w]hen a new trial has been granted by the court, the case shall be placed on the
docket for trial as though no trial had been had[.]” And, under OCGA § 17-8-1 (a),
“[t]he cases on the criminal docket shall be called in the order in which they stand on
the docket unless the accused is in jail or, otherwise, in the sound discretion of the
court.” (emphasis supplied)). As such, the trial court was authorized, in its discretion,
to set the new trial for the following week. Moreover, OCGA § 5-5-48 does not
prohibit the trial court from setting the trial more quickly.
2. Riley next argues that his convictions must be reversed because there is no
evidence that he was competent to stand trial. He points to his testimony at the motion
for new trial hearing in which he stated that he understood the trial court had granted
a mistrial rather than a new trial, and that he spent several years in a mental health
facility. We discern no reversible error.6
6
The State contends that Riley did not preserve this argument. The record
shows that Riley’s initial trial counsel filed an ex parte motion for a competency
evaluation, and the trial court ordered an evaluation, but the record does not include
9
“A criminal defendant’s due process right to a fair trial encompasses the right
not to be tried or convicted while incompetent to stand trial.” (Citations omitted.)
Phelps v. State, 296 Ga. App. 362, 364 (1) (674 SE2d 620) (2009). Generally, we
presume a defendant is mentally competent. OCGA § 16-2-3; Powers v. State, 314
Ga. App. 733, 734-735 (1) (b) (725 SE2d 848) (2012). Nevertheless, under OCGA
§ 17-7-130 (b) (1), a defendant may move the trial court to order a competency
evaluation. But, once competency has been determined, “the appropriate standard of
appellate review is whether after reviewing the evidence in the light most favorable
to the State, a rational trier of fact could have found that the defendant failed to prove
by a preponderance of the evidence that he was incompetent to stand trial.” (Citation
and footnote omitted.) Sims v. State, 279 Ga. 389, 391 (1) (614 SE2d 73) (2005). The
an evaluation report or any other documentation with regard to this issue. Riley’s
subsequent trial counsel was unaware of the ex parte motion. And, in his motion for
new trial, Riley argued only that trial counsel was ineffective in failing to address his
mental health issues; he did not argue that he was not competent to stand trial.
Pretermitting whether Riley preserved his competency argument, and in light of the
fact that trial courts have an independent obligation to ensure the defendant is
competent to stand trial if there is any cause for concern, we address this issue on the
merits. See OCGA § 17-7-129 (a); see also Baker v. State, 250 Ga. 187, 189-190 (1)
(297 SE2d 9) (1982) (waiver of statutory right to special jury on competency issue
did not waive trial court’s independent duty).
10
defendant bears the burden of establishing incompetency. Traylor v. State, 280 Ga.
400, 406 (4) (b) (627 SE2d 594) (2006).
Here, Riley has not met his burden. The record shows that Riley’s first trial
counsel filed an ex parte motion for a competency evaluation, which the trial court
granted. The record, however, contains no evaluation results or copies of any medical
or psychological reports. And appellate counsel did not call the trial counsel who
requested the evaluation to testify at the motion for new trial hearing. See Simpson
v State, 238 Ga. App. 109, 113-114 (3) (517 SE2d 830) (1999) (physical precedent
only) (finding no error where the results of court ordered evaluation were not
included in the record, and explaining that the trial court has no obligation to inquire
into the results). Cf. Strong v. State, 263 Ga. 587, 590 (5) (436 SE2d 213) (1993) (no
error in failure to sua sponte order competency hearing where there was no evidence
defendant was incompetent). Riley testified at the motion for new trial hearing that
he took medication for a sleep disorder and schizophrenia following a head injury in
1998. But, trial counsel testified that Riley understood the nature of the charges
against him, was able to assist in his defense, and understood the roles of the
attorneys and judge. She stated that she did not seek a hearing on Riley’s competency
because Riley never mentioned his mental health issues and she believed there was
11
no basis to raise a mental health defense. As such, Riley has not met his burden to
show there was a question as to his competency to stand trial. Sims, 279 Ga. at 391(1).
Moreover, the fact that the trial court ordered an evaluation does not lead to the
conclusion that Riley was incompetent to stand trial. A defendant is presumed to be
competent, and, “[a] court need not accept an expert’s testimony on the defendant’s
mental state, but may rely on its own observations and the basic presumptions
permitted by law.” Flesche v. State, 254 Ga. App. 3, 5 (1) (561 SE2d 160) (2002); see
also OCGA § 16-2-3. “The fact that the court allowed the trial to go forward after
testimony concerning Appellant’s competency is in effect a sub silentio finding that
he was competent.” Harris v. State, 256 Ga. 350, 352 (2) (349 SE2d 374) (1986).
Additionally, nothing in the record would have triggered the trial court’s sua
sponte obligation to inquire into Riley’s competency. See OCGA § 17-7-129 (a) (the
trial court has a duty to sua sponte inquire into a defendant’s competency where it has
information that raises a bona fide question of competency); see also Beach v. State,
351 Ga. App. 237, 241-242 (2) (b) (830 SE2d 565) (2019).
Whether a competency evaluation is warranted depends on
12
whether the trial court received information which, objectively
considered, should reasonably have raised a doubt about the defendant’s
competency and alerted the trial court to the possibility that the
defendant could neither understand the proceedings, appreciate their
significance, nor rationally aid his attorney in his defense.
(Citations omitted.) Traylor v. State, 280 Ga. 400, 404 (4) (a) (627 SE2d 594) (2006).
The focus is on three factors: “(1) evidence of the defendant’s irrational behavior;
(2) the defendant’s demeanor at trial; and (3) prior medical opinion regarding the
defendant’s competence to stand trial. Such an analysis focuses on what the trial court
did in light of what it knew at the time of the trial or plea hearing.” (Citations
omitted.) Johnson v. State, 209 Ga. App. 514, 516 (2) (433 SE2d 717) (1993).
Here, Riley contends that his confusion over whether the trial court granted a
mistrial or a new trial shows that he did not understand the proceedings. But, this
alone does not show that the trial court had an obligation to inquire into Riley’s
competency. See Palmer v. State, 303 Ga. 810, 814 (II) (814 SE2d 718) (2018);
Traylor, 280 Ga. at 405 (4) (a). The fact that Riley did not understand that the trial
court granted a new trial rather than a mistrial does not show that he did not
understand the nature of the proceedings, especially where the trial court initially
indicated that it would grant a mistrial and only changed its order after conducting
13
research. Moreover, there is no evidence in the record of any irrational behavior or
other conduct that would have triggered the trial court’s independent duty. Under
these facts, Riley cannot meet his burden to show that he was not competent to stand
trial.
3. Riley next argues that his conviction for rape must be reversed because the
trial court failed to conduct the requisite three-part test under OCGA § 24-4-404 (b)
(“Rule 404 (b)”) before admitting the evidence of similar transactions. We discern no
error.
We review a trial court’s evidentiary rulings for abuse of discretion. McCoy v.
State, 332 Ga. App. 626, 628 (774 SE2d 179) (2015).
The State contends that Riley did not preserve the alleged error because he did
not object to the evidence on this ground in the trial court.7 Our review of the record
shows that, during the second trial, trial counsel objected to the officers’ testimony
on the ground that it was cumulative and bolstered earlier testimony, but counsel did
7
The State argues that the officers’ testimony concerning the prior acts was
admissible. Although Riley objected to the officers’ testimony as cumulative and
bolstering the victims’ testimonies, he makes a different argument on appeal. Thus,
he has abandoned his previous objection. Patterson v. State, 327 Ga. App. 695, 698
(3) (761 SE2d 101) (2014).
14
not argue that the evidence failed to satisfy the three-prong test under Rule 404 (b).8
Because the record confirms that Riley raises his challenge to the evidence under
Rule 404 (b) for the first time on appeal, our review is limited to plain error. Gates
v. State, 298 Ga. 324, 326 (3) (781 SE2d 772) (2016); see also OCGA § 24-1-103 (d).
To meet his burden under plain error, Riley must show the following:
First, there must be an error or defect—some sort of deviation from a
legal rule—that has not been intentionally relinquished or abandoned,
i.e., affirmatively waived, by the appellant. Second, the legal error must
be clear or obvious, rather than subject to reasonable dispute. Third, the
error must have affected the appellant’s substantial rights, which in the
ordinary case means he must demonstrate that it affected the outcome of
the trial court proceedings. Fourth and finally, if the above three prongs
are satisfied, the appellate court has the discretion to remedy the
error—discretion which ought to be exercised only if the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings.
(Citations and punctuation omitted.) Gates, 298 Ga. at 327 (3). Riley cannot meet this
burden.
8
Prior to the start of the second trial, counsel objected to the Rule 404 (b)
evidence with respect to the victims in the 1999 and 2102 attacks on the grounds that
the incidents were not similar. The State responded that these events were admissible
under Rule 413. The trial court found the evidence admissible.
15
Riley’s challenge to the admissibility of the similar transactions under Rule 404
(b) is misplaced because the evidence was admissible under OCGA § 24-4-413 (a)
(“Rule 413 (a)”). Edmondson v. State, 336 Ga. App. 621, 626 (2) (785 SE2d 563)
(2016). The State provided notice of its intent to rely on these prior criminal acts
under both OCGA § 24-4-404 (b) and 24-4-413. OCGA § 24-4-413 (b). And the trial
court found that the prior incidents were admissible under Rule 413.
OCGA § 24-4-413 (a) provides:
In a criminal proceeding in which the accused is accused of an offense
of sexual assault, evidence of the accused’s commission of another
offense of sexual assault shall be admissible and may be considered for
its bearing on any matter to which it is relevant.
(Emphasis supplied.) The statute defines “offense of sexual assault” to include rape.
OCGA § 24-4-413 (d) (1); OCGA § 16-6-1 (a). As we have explained, Rule 413
supersede[s] the provisions of OCGA § 24-4-404 (b) in sexual assault
. . . cases, and create[s] a rule of inclusion, with a strong presumption in
favor of admissibility as [it] provides that such evidence shall be
admissible. Thus, the State can seek to admit evidence under these
provisions for any relevant purpose, including propensity.
16
(Citations and punctuation omitted.) Dixon v. State, 341 Ga. App. 255, 258 (1) (800
SE2d 11) (2017).9 Because Riley was on trial for rape, his prior instances of rape,
sexual battery, and aggravated assault with intent to rape were properly before the
jury under Rule 413. And, as the evidence was admissible under Rule 413, Riley’s
challenge to the evidence under Rule 404 (b) fails.
4. Riley next contends that there was insufficient evidence to support his
conviction for giving false information to a law enforcement officer because there
was no proof the information was false or that he intended to mislead the officer. This
argument is without merit.
In support of his argument, Riley notes that his name is frequently identified
as “Riley Coleman.” But he offers no other argument for his claim that the evidence
was insufficient. Nevertheless, our review of the record shows that there was
sufficient evidence for the jury to find that Riley intentionally gave a false name to
the investigating officer.
9
Evidence admitted under Rule 413 is subject to the balancing test set out in
OCGA § 24-4-403 (“Rule 403”). Dixon, 341 Ga. App. at 260 (1) (b). Riley does not
argue that the Rule 403 balancing test required the evidence to be excluded. Thus, we
do not address this analysis.
17
On appeal from a criminal conviction, we view the evidence in the light
most favorable to the jury’s verdict, and the defendant is no longer
presumed innocent. Thus, in evaluating the sufficiency of the evidence,
we do not assess witness credibility or weigh the evidence, but only
determine if the evidence was sufficient for a rational trier of fact to find
the defendant guilty of the charged offenses beyond a reasonable doubt.
And the verdict will be upheld so long as there is some competent
evidence, even though contradicted, to support each fact necessary to
make out the State’s case.
(Citations and punctuation omitted.) Johnson v. State, 351 Ga. App. 690, 692 (832
SE2d 676) (2019).
OCGA § 16-10-25 provides “[a] person who gives a false name, address, or
date of birth to a law enforcement officer in the lawful discharge of his official duties
with the intent of misleading the officer as to his identity or birthdate is guilty of a
misdemeanor.” Notably, “whether the requisite intent is manifested by the
circumstances is a question for the trier of fact, and, on review, this court will not
disturb the factual determination unless it is contrary to the evidence and clearly
erroneous.” (Citation and punctuation omitted.) Flanders v. State, 230 Ga. App. 316,
317 (2) (496 SE2d 344) (1998).
18
Here, the evidence showed that the officer encountered Riley outside his
rooming house while investigating the victim’s allegation of rape; the officer asked
Riley his name and Riley gave several different names, social security numbers, and
birth dates, none of which matched any information in the police database; and police
did not learn his true identity until Riley was fingerprinted at the police station. In his
interview, Riley admitted that he gave the police a false name. It was for the jury to
determine intent, and this evidence was sufficient for the jury to convict Riley of
giving false information to a law enforcement officer. See Ceballos v. State, 345 Ga.
App. 714, 717 (1) (815 SE2d 89) (2018).
To the extent that Riley contends that there is confusion about whether he gave
a false name because he has two first names and two last names and his speech
pattern made “Coleman” sound like “Tony,” we are not persuaded. There is no
evidence in the record – and indeed Riley points to none – to support either claim.
5. In his final enumeration of error, Riley argues that the trial court erred by
sentencing him as a recidivist under OCGA § 17-10-7 (a) and (c) because both
subdivisions cannot be applied to the same case and should not be read together. He
acknowledges, however, that this Court has held to the contrary.
19
Riley did not challenge his prior convictions for purposes of enhancing his
sentence under OCGA § 17-10-7, and thus he has waived it. von Thomas v. State, 293
Ga. 569, 572-573 (2) (748 SE2d 446) (2013) (both the Supreme Court of Georgia and
this Court have routinely held that a defendant may waive challenges to the predicate
offenses used to sentence him as a recidivist); see also Barstad v. State, 329 Ga. App.
214, 219 (2) (b) (764 SE2d 453) (2014). But, to the extent that Riley’s argument
concerning his recidivist sentence would render the sentence void, such an argument
would not be waived. See Parham v. State, 342 Ga. App. 754, 756 (1), n. 1 (805 SE2d
264) (2017).
OCGA § 17-10-7 (a) provides:
any person who, after having been convicted of a felony offense in this
state . . . and sentenced to confinement in a penal institution, commits
a felony punishable by confinement in a penal institution shall be
sentenced to undergo the longest period of time prescribed for the
punishment of the subsequent offense of which he or she stands
convicted, provided that, unless otherwise provided by law, the trial
judge may, in his or her discretion, probate or suspend the maximum
sentence prescribed for the offense.
Additionally, under OCGA § 17-10-7 (c),
20
any person who, after having been convicted under the laws of this state
for three felonies . . . commits a felony within this state shall, upon
conviction for such fourth offense or for subsequent offenses, serve the
maximum time provided in the sentence of the judge based upon such
conviction and shall not be eligible for parole until the maximum
sentence has been served.
As Riley concedes, our Supreme Court has explained that these provisions
must be read together. Blackwell v. State, 302 Ga. 820, 829 (4) (809 SE2d 727)
(2018); see also Reason v. State, 353 Ga. App. 266, 269-270 (2) (836 SE2d 223)
(2019) (acknowledging precedent and finding no error in sentence under both
subsections). As a result, there is no merit to Riley’s argument that the trial court
erred in sentencing him as a recidivist under both provisions.
For the foregoing reasons, the trial court properly denied Riley’s motion for a
new trial, and we affirm.
Judgment affirmed. Reese, P. J., and Colvin, J., concur.
21