Langley v. State

In the Supreme Court of Georgia
Decided: February 1, 2022
S21G0783. LANGLEY v. THE STATE.
BOGGS, Presiding Justice.
We granted certiorari in this case to decide whether the Court
of Appeals erred in holding that trial courts lack the discretion to
probate any portion of a sentence imposed for possession of a firearm
by a convicted felon. See State v. Langley, 358 Ga. App. 343, 345 (855
SE2d 376) (2021). We conclude that the Court of Appeals did err,
and we therefore reverse its judgment.
1. In 1987, Dennis Mark Langley was convicted of murder
and sentenced to serve life in prison. He was later released on
parole. On July 26, 2019, a search of Langley’s home revealed a
semi-automatic pistol with a loaded magazine hanging on a wall in
his living room and two rifles in his bedroom closet.
Langley was charged by accusation with one count of
possession of a firearm by a convicted felon in violation of OCGA
§ 16-11-131 (b). 1 The accusation specified that he had previously
been convicted of a forcible felony, murder. Langley pled guilty, and
the trial court sentenced him to a term of imprisonment with the
first six months to be served in confinement and the remainder to be
served on probation. The State filed a timely notice of appeal
directed to the Court of Appeals, arguing that the trial court lacked
1 OCGA § 16-11-131 (b) says:
Any person who is on probation as a felony first offender pursuant
to Article 3 of Chapter 8 of Title 42, who is on probation and was
sentenced for a felony under subsection (a) or (c) of Code Section
16-13-2, or who has been convicted of a felony by a court of this
state or any other state; by a court of the United States including
its territories, possessions, and dominions; or by a court of any
foreign nation and who receives, possesses, or transports any
firearm commits a felony and, upon conviction thereof, shall be
imprisoned for not less than one year nor more than ten years;
provided, however, that upon a second or subsequent conviction,
such person shall be imprisoned for not less than five nor more
than ten years; provided, further, that if the felony for which the
person is on probation or has been previously convicted is a forcible
felony, then upon conviction of receiving, possessing, or
transporting a firearm, such person shall be imprisoned for a
period of five years.
The term “forcible felony” is defined in the statute and specifically includes
“murder.” OCGA § 16-11-131 (e).
2
the authority to impose a probated sentence and that the sentence
was therefore void. See OCGA § 5-7-1 (a) (6) (authorizing appeal by
State in criminal case where trial court’s order is void).
The Court of Appeals acknowledged “the trial court’s general
discretion under OCGA § 17-10-1 (a) (1) (A) to impose a probated
sentence” but concluded that the specific and mandatory phrase
“shall be imprisoned” in OCGA § 16-11-131 (b) prevailed over the
general grant of authority to “probate all or any part” of a
determinate sentence contained in OCGA § 17-10-1 (a) (1) (A).2
2 OCGA § 17-10-1 (a) (1) (A) says:
Except in cases in which life imprisonment, life without parole, or
the death penalty may be imposed, upon a verdict or plea of guilty
in any case involving a misdemeanor or felony, and after a
presentence hearing, the judge fixing the sentence shall prescribe
a determinate sentence for a specific number of months or years
which shall be within the minimum and maximum sentences
prescribed by law as the punishment for the crime. The judge
imposing the sentence is granted power and authority to suspend
or probate all or any part of the entire sentence under such rules
and regulations as the judge deems proper, including service of a
probated sentence in the sentencing options system, as provided
by Article 6 of Chapter 3 of Title 42, and including the authority to
revoke the suspension or probation when the defendant has
violated any of the rules and regulations prescribed by the court,
even before the probationary period has begun, subject to the
conditions set out in this subsection; provided, however, that such
action shall be subject to the provisions of Code Sections 17-10-6.1
3
Langley, 358 Ga. App. at 345. The Court of Appeals relied in part on
State v. Jones, 265 Ga. App. 493 (594 SE2d 706) (2004), which held
that the phrase “shall be imprisoned for not less than ten years” in
OCGA § 16-13-30 (d), a recidivist provision applicable to certain
drug offenses, precluded a trial court from probating any part of the
first ten years of the defendant’s sentence for his second conviction
for possession of cocaine with intent to distribute.3 See Jones, 265
Ga. App. at 495. The Court of Appeals vacated Langley’s sentence
and remanded the case to the trial court for resentencing. See
Langley, 358 Ga. App. at 345. We granted Langley’s petition for
certiorari.
and 17-10-6.2.
3 OCGA § 16-13-30 (d) says:
Except as otherwise provided, any person who violates subsection
(b) of this Code section with respect to a controlled substance in
Schedule I or Schedule II shall be guilty of a felony and, upon
conviction thereof, shall be punished by imprisonment for not less
than five years nor more than 30 years. Upon conviction of a second
or subsequent offense, he or she shall be imprisoned for not less
than ten years nor more than 40 years or life imprisonment. The
provisions of subsection (a) of Code Section 17-10-7 shall not apply
to a sentence imposed for a second such offense; provided, however,
that the remaining provisions of Code Section 17-10-7 shall apply
for any subsequent offense.
4
2. Langley contends that the Court of Appeals erred in
construing the phrase “shall be imprisoned” in OCGA § 16-11-131
(b) to deprive the trial court of discretion to impose a probated
sentence pursuant to OCGA § 17-10-1 (a) (1) (A). We agree.
In interpreting statutes, we “presume that the General
Assembly meant what it said and said what it meant.” Deal v.
Coleman, 294 Ga. 170, 172 (751 SE2d 337) (2013) (citation and
punctuation omitted).
[A]nd so, we must read the statutory text in its most
natural and reasonable way, as an ordinary speaker of the
English language would. The common and customary
usages of the words are important, but so is their context.
For context, we may look to other provisions of the same
statute, the structure and history of the whole statute,
and the other law – constitutional, statutory, and common
law alike – that forms the legal background of the
statutory provision in question.
Zaldivar v. Prickett, 297 Ga. 589, 591 (774 SE2d 688) (2015)
(citations and punctuation omitted). Moreover, “[a]ll statutes
relating to the same subject matter are to be construed together, and
harmonized wherever possible.” Hartley v. Agnes Scott College, 295
Ga. 458, 462 (759 SE2d 857) (2014) (citation and punctuation
5
omitted). Thus, “[w]e construe statutes in connection and in
harmony with the existing law, and as a part of a general and
uniform system of jurisprudence.” In the Interest of M. D. H., 300 Ga.
46, 53 (793 SE2d 49) (2016) (citation and punctuation omitted).
Looking to the statutory text and context, there is no real
question about what the phrase “shall be imprisoned” – standing
alone – means in a penal statute. In ordinary English, the phrase
“shall be imprisoned” means that a person convicted of an offense is
to be “confined” for the period specified by the statute. See, e.g.,
Webster’s Third New International Dictionary 1137 (1966) (defining
“imprison” to mean “to put in prison” or “confine in a jail”). The
question in this case is how a statute containing that phrase
interacts with OCGA § 17-10-1 (a) (1) (A), which says that upon
conviction, the trial court shall impose a “determinate sentence for
a specific number of months or years” that is within the sentencing
range “prescribed by law as the punishment for the crime” but then
adds that “[t]he judge imposing the sentence is granted power and
authority to suspend or probate all or any part of the entire
6
sentence.” According to the State, the answer is simple: if the penal
statute uses the phrase “shall be imprisoned,” probation is never
allowed, because the sentence must be served in confinement.
In light of the statutory text and context, that cannot be
correct. To see why, it is helpful to take a broader look at how
Georgia’s penal statutes in general prescribe sentences. That wider
review reveals that virtually all penal statutes in Georgia introduce
the sentencing range for a violation with one of two phrases: either
“shall be imprisoned,” see, e.g., OCGA §§ 13-9-3 (b) (entering into
contract for sale of commodities without bona fide intention to
deliver), 16-9-58 (fraudulent failure to pay for delivered agricultural
products or chattels), 16-11-126 (i) (2) (second or subsequent
conviction for carrying a weapon without a valid weapons carry
license), 16-12-1 (d) (1) (contributing to the delinquency or
deprivation of a minor); or, more commonly, “shall be punished by
imprisonment,” see, e.g., OCGA §§ 10-4-78 (making false affidavit as
to adverse lien, title, or claim to cotton), 16-9-57 (d) (soliciting
donations as representative of peace officer or fire service
7
organization without authority), 16-11-123 (knowing possession of
sawed-off shotgun or rifle, machine gun, dangerous weapon, or
silencer), 16-12-4 (e) (aggravated cruelty to animals). Despite the
slight difference in wording, both phrases mean the same thing. In
ordinary English, “imprisonment” means “the state of being
imprisoned” or “confinement.” Webster’s Third New International
Dictionary 1137 (1966). And a person who is “imprisoned” for
violating a penal statute is undoubtedly being punished. Thus, the
problem with the State’s argument is that it would essentially
nullify the availability of probation in Georgia, making the part of
OCGA § 17-10-1 (a) (1) (A) that authorizes trial courts to probate
sentences a virtual dead letter. See State v. Hudson, 303 Ga. 348,
352 (812 SE2d 270) (2018) (“Harmonizing statutes means giving
effect to each of them.”).
Given this context, we conclude that both phrases – “shall be
imprisoned” and “shall be punished by imprisonment” – function as
terms of art in Georgia sentencing law, and both serve to introduce
the sentencing range of time in prison that a penal statute
8
prescribes as punishment for a violation. Pursuant to OCGA § 17-
10-1 (a) (1) (A), upon conviction, the trial court must impose a
sentence for a specific number of years, months, or days in prison
within that sentencing range, and the judge imposing the sentence
is then authorized to probate all or any part of the sentence, unless
such probation is expressly forbidden. See Hwang v. State, 293 Ga.
App. 815, 815-816 (668 SE2d 325) (2008) (rejecting argument that
trial court lacked authority to probate first ten days of sentence
because statute said that upon second or third conviction within five
years, the defendant “‘shall be punished by imprisonment for not
less than ten days nor more than 12 months’” (citation omitted)). In
effect, probation is superimposed on the system of prison sentences
prescribed in individual criminal statutes.
This view is informed by the history of probation in Georgia,
which provides further context for our interpretation. The General
Assembly has long used the synonymous phrases “shall be
punished” and “shall be punished by imprisonment” to prescribe
terms of incarceration for criminal offenses. See Ga. L. 1816, p. 142,
9
at 164, 174, 186, 190 (all “shall be imprisoned”), 151, 153-154, 159,
162-163, 166-169, 175 (all “shall be punished by imprisonment”). It
was not until much later that the General Assembly authorized trial
courts to probate criminal sentences. See Ga. L. 1913, p. 112, § 1
(authorizing probation of misdemeanor sentences); Ga. L. 1937, p.
326, § 3 (authorizing probation of felony sentences except for crimes
“punishable by death or life imprisonment”). The statutes that first
authorized probation made no distinction between sentencing
ranges introduced by the phrase “shall be imprisoned” and those
introduced by the phrase “shall be punished by imprisonment.”
OCGA § 17-10-1 (a) (1) (A), which is descended from these earlier
probation statutes, similarly makes no such distinction. Thus, in
1980, when the General Assembly enacted the statute that is now
codified as OCGA § 16-11-131, see Ga. L. 1980, p. 1509, § 1, there
was no reason to conclude that the statute’s use of the phrase “shall
be imprisoned” rather than “shall be punished by imprisonment”
10
would preclude trial courts from imposing probated sentences for
violations of that statute.4
This view of how probation operates in the context of criminal
sentencing is further reinforced by the exceptions expressly
recognized in OCGA § 17-10-1 (a) (1) (A) and in other penal statutes
that contain language expressly prohibiting probation. OCGA § 17-
10-1 (a) (1) (A) excludes “cases in which life imprisonment, life
without parole, or the death penalty may be imposed” and also
makes the power to probate sentences “subject to the provisions of
Code Sections 17-10-6.1 and 17-10-6.2,” which limit the availability
of probation for serious violent felonies and sexual offenses. In
addition, some penal statutes include language expressly
prohibiting probation for all or some part of a sentence. See, e.g.,
OCGA §§ 16-6-13 (a) (1) (upon conviction for keeping a place of
prostitution, “all but 24 hours of any term of imprisonment imposed
4 Indeed, in 1963, this Court noted in passing that a trial court imposed
a probated sentence of two years for a violation of a statute that said that upon
conviction, an offender “‘shall be imprisoned in the penitentiary for not less
than one year nor more than five years.’” Coffee v. State, 219 Ga. 328, 329-330
(133 SE2d 590) (1963) (emphasis added and citation omitted).
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may be suspended, stayed, or probated”), (b) (3) (sentence for second
or subsequent conviction for keeping a place of prostitution,
pimping, or pandering that involves the conduct of a minor “shall
not be suspended, probated, deferred, or withheld”), 16-7-1 (d)
(sentence for fourth or subsequent conviction for burglary in any
degree “shall not be suspended, probated, deferred, or withheld”),
16-7-88 (c) (upon conviction for illegal possession, transportation,
receipt, or use of a destructive device or explosive, “no part of any
sentence imposed . . . shall be probated, deferred, suspended, or
withheld”). If a penal statute’s use of “shall be punished” or “shall be
punished by imprisonment,” standing alone, were sufficient to
deprive trial courts of their discretion to impose probated sentences
under OCGA § 17-10-1 (a) (1) (A), statutory language expressly
prohibiting probation would be mere surplusage. See Kinslow v.
State, 311 Ga. 768, 774 (860 SE2d 444) (2021) (explaining that when
construing statutes, we normally avoid interpretations that render
some statutory language “mere surplusage” (citation and
punctuation omitted)).
12
The Court of Appeals reached a contrary conclusion here based
in part on the statement in Division 2 of Jones that
the decision to probate a portion of the sentence [for Jones’
second conviction for possession of cocaine with intent to
distribute], requiring Jones to serve only seven years, is
in direct contravention to the statute, which states
specifically that a second time offender “shall be
imprisoned for not less than ten years. . . .”
Jones, 265 Ga. App. at 495 (quoting OCGA § 16-13-30 (d)). See
Langley, 358 Ga. App. at 345 (citing Jones). However, the trial court
in Jones lacked the authority to probate any part of Jones’ sentence,
not just the first ten years of the sentence, but not because OCGA
§ 16-13-30 (d) introduced the sentencing range for a second or
subsequent conviction with the phrase “shall be imprisoned.”
Instead, it was the final sentence of OCGA § 16-13-30 (d), which has
remained the same since 1996, see Ga. L. 1996, p. 1023, § 1.1, that
prohibited the trial court in Jones from imposing a probated
sentence.
The final sentence of OCGA § 16-13-30 (d) says:
The provisions of subsection (a) of Code Section 17-10-7
shall not apply to a sentence imposed for a second such
13
offense; provided, however, that the remaining provisions
of Code Section 17-10-7 shall apply for any subsequent
offense.[5]
OCGA § 17-10-7 (a) requires that a person previously convicted of a
felony who is convicted of another felony must be sentenced to
undergo “the longest period of time prescribed for the punishment of
the subsequent offense” but specifies 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.”
(Emphasis added.)6 Thus, while OCGA § 17-10-7 (a) generally
preserves the authority of trial courts under OCGA § 17-10-1 (a) (1)
5 OCGA § 17-10-7 (a) says:
Except as otherwise provided in subsection (b) or (b.1) of this Code
section, any person who, after having been convicted of a felony
offense in this state or having been convicted under the laws of any
other state or of the United States of a crime which if committed
within this state would be a felony 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.
6 The quoted language has appeared in OCGA § 17-10-7 (a) in essentially
the same form since 1984. See Ga. L. 1984, p. 760, § 2.
14
(A) to probate all or any part of a sentence for a second or subsequent
felony conviction, OCGA § 16-13-30 (d) provided otherwise for Jones’
second conviction for possession of cocaine with intent to distribute
by specifying that “[t]he provisions of subsection (a) of Code Section
17-10-7 shall not apply to a sentence imposed for a second such
offense.” To the extent that Division 2 of Jones can be read as
holding that the introduction of a sentencing range with the phrase
“shall be imprisoned,” standing alone, deprives trial courts of
discretion to impose a probated sentence under OCGA § 17-10-1 (a)
(1) (A), it is disapproved.7
For the foregoing reasons, we conclude that the Court of
Appeals erred in holding that trial courts lack the discretion to
probate any portion of a sentence imposed for possession of a firearm
by a convicted felon. According, we reverse the Court of Appeals’
judgment.
7 We also disapprove Fortson v. State, 283 Ga. App. 120, 121 & n.1 (640
SE2d 693) (2006), Mike v. State, 290 Ga. App. 214, 214 (659 SE2d 664) (2008),
and Thomas v. State, 321 Ga. App. 214, 217 (741 SE2d 298) (2013), to the
extent that they rely on this reading of Division 2 of Jones.
15
Judgment reversed. All the Justices concur, except Colvin, J.,
disqualified.
16