Travis D. Hodges v. State ( 2020 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 23, 2020
The Court of Appeals hereby passes the following order:
A21A0485. TRAVIS D. HODGES v. THE STATE.
In June 2002, Travis D. Hodges pleaded guilty to three separate counts of
armed robbery. He was sentenced to ten years in prison on each count, to be served
consecutively. In March 2016, Hodges filed a “Motion to Correct an Illegal and/or
Void Sentence,” arguing, among other things, that the trial court should have run the
ten-year sentences concurrently. The trial court denied the motion, Hodges filed a
direct appeal from that order, and we dismissed the appeal. In our order, we noted that
“whether to impose consecutive or concurrent sentences for multiple offenses is
within the trial court’s discretion,” Simpson v. State, 310 Ga. App. 63, 64 n. 4 (715
SE2d 675) (2011), and concluded that Hodges had not raised a colorable void
sentence claim. See Case No. A16A2083 (dismissed Aug. 2, 2016). Hodges
subsequently filed another Motion to Vacate a Void Sentence, arguing that the trial
court committed reversible error in issuing consecutive sentences because that
“deferred” sentencing. The trial court denied Hodges’s motion, Hodges filed a direct
appeal from that order, and we dismissed that appeal too. In our order, we again noted
that “whether to impose consecutive or concurrent sentences for multiple offenses is
within the trial court’s discretion,” Simpson, 310 Ga. App. at 64 n. 4, and again
concluded that Hodges had not raised a colorable void sentence claim. See Case No.
A17A1125 (dismissed Feb. 22, 2017).
Hodges then filed his “Defendant’s Consolidated Motion to Modify and Vacate
Void Sentences.” In this motion, he argued that his sentences cannot run
consecutively because under OCGA § 17-10-6.1 (d) the conviction of multiple crimes
charged on the same indictment or in two or more indictments consolidated for trial
“shall be deemed to be only one conviction” for the purposes of determining “a first
conviction of any serious violent felony” under that code section. The trial court
denied Hodges’s motion, and he filed this direct appeal. We again 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. Harper v. State, 286 Ga. 216, 217 n.1 (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 – even assuming the existence and
validity of the conviction for which the sentence was imposed – 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). Thus, 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).
Here, contrary to Hodges’s argument, OCGA § 17-10-6.1 (d) does not prohibit
a judge from imposing consecutive sentences. And, as stated in our prior two orders
dismissing Hodges’s similar appeals, “whether to impose consecutive or concurrent
sentences for multiple offenses is within the trial court’s discretion.” Simpson, 310
Ga. App. at 64 n. 4. Therefore, Hodges has failed to raise a colorable void sentence
claim, and this appeal is hereby DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
11/23/2020
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.