Jessie J. Askew, Jr. v. State ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
July 19, 2021
The Court of Appeals hereby passes the following order:
A21A1767. JESSIE J. ASKEW, JR. v. THE STATE.
In 1998, a jury found Jessie Askew, Jr., guilty of armed robbery and other
offenses, and the trial court sentenced him, as a recidivist, to life in prison without the
possibility of parole. We affirmed his convictions and sentences on direct appeal,
concluding, in relevant part, that, under the applicable statutory scheme, “the trial
court was mandated in this case to sentence Askew to life imprisonment without
parole.” Askew v. State, 254 Ga. App. 137, 144 (11) (564 SE2d 720) (2002).
In April 2021, Askew filed a “Motion for Resentencing Under Substantive
Change in Law,” in which he contended that he should receive the benefit of OCGA
§ 17-10-6.1 (e), which was enacted in 2013 and grants a trial court the authority to
impose a sentence below the mandatory minimum in certain circumstances. See Ga.
L. 2013, pp. 222, 233, § 8. The trial court denied the motion, and Askew filed this
direct appeal. We lack jurisdiction.
Under OCGA § 17-10-1 (f), a court may modify a sentence during the year
after its imposition or within 120 days after remittitur following a direct appeal,
whichever is later. Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010).
Once, as here, this statutory period expires, a trial court may modify only a void
sentence. Id. “A sentence is void if the court imposes punishment that the law does
not allow.” Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004) (punctuation
omitted). When a sentence falls within the statutory range of punishment, it is not
void and is not subject to modification beyond the time provided in § 17-10-1 (f). See
id. Moreover, a direct appeal does not lie from the denial of a motion to modify a
sentence filed outside the statutory time period unless the motion raises a colorable
claim that the sentence is, in fact, void. Frazier, 302 Ga. App. at 348.
A criminal defendant must be sentenced according to the sentencing law in
effect at the time the crime was committed. See Reed v. State, 352 Ga. App. 30, 31
n. 1 (833 SE2d 712) (2019); Searcy v. State, 162 Ga. App. 695, 698 (2) (291 SE2d
557) (1982). Consequently, § 17-10-6.1 (e) – which was enacted after Askew was
sentenced in this case – has no bearing on whether the trial court had the authority to
impose a sentence of life in prison without the possibility of parole, pretermitting
whether (a) that statute would have any bearing on Askew’s sentence if it had been
in effect when the crimes underlying his convictions were committed or when he was
sentenced, and/or (b) Askew’s request for a sentence modification is barred by the
law of the case, given our ruling in Askew’s direct appeal that the trial court was
required to impose the sentence it did. See Ross v. State, 310 Ga. App. 326, 327 (713
SE2d 438) (2011) (“[A]ny issue that was raised and resolved in an earlier appeal is
the law of the case and is binding on this Court . . . .”) (punctuation omitted).
For the above reasons, Askew has not raised a colorable void-sentence claim,
as a result of which this appeal is hereby DISMISSED. See Frazier, 302 Ga. App. at
348-349.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
07/19/2021
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.