Israel Mendez-Mendez v. State ( 2020 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
May 04, 2020
The Court of Appeals hereby passes the following order:
A20A1713. ISRAEL MENDEZ-MENDEZ v. THE STATE.
In 2015, Israel Mendez-Mendez pleaded guilty to child molestation and was
sentenced to 20 years, to serve 12 in confinement and the remainder on probation. In
2020, Mendez-Mendez filed a “Motion to Correct Void Sentence.” The trial court
entered an order denying this motion, and Mendez-Mendez filed a notice of appeal.
We lack jurisdiction.
A direct appeal may lie from an order denying a motion to vacate or correct a
void sentence only if the defendant raises a colorable claim that the sentence is, in
fact, void. See Harper v. State, 286 Ga. 216, 217, n. 1 (686 SE2d 786) (2009); Burg
v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). “Motions to vacate a void
sentence generally are limited to claims that . . . the law does not authorize that
sentence, most typically because it exceeds the most severe punishment for which the
applicable penal statute provides.” von Thomas v. State, 293 Ga. 569, 572 (2) (748
SE2d 446) (2013). When a sentence is within the statutory range of punishment, it is
not void. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004).
Mendez-Mendez argued that his child molestation sentence was void because
the trial court failed to consider whether he qualified for a deviation below the
mandatory minimum for that offense. In Jackson v. State, 338 Ga. App. 509 (790
SE2d 295) (2016), however, we held that “[t]he failure to deviate – or consider
deviating – below a minimum sentence does not render the sentence one that the law
does not allow, so long as the sentences imposed remain within the range of
punishments permitted by law.” Id. at 510 (punctuation omitted). Mendez-Mendez’s
twenty-year sentence for child molestation fell within the applicable range for that
offense. See OCGA § 16-6-4 (b). Thus, he has not raised a colorable void-sentence
claim, and the denial of his motion is not subject to direct appeal. See Burg, 297 Ga.
App. at 120. Accordingly, this appeal is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
05/04/2020
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.