Timothy Albert Henry v. State

SECOND DIVISION
RAY, P. J.,
ANDREWS and DOYLE, 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.
http://www.gaappeals.us/rules
October 13, 2017
In the Court of Appeals of Georgia
A17A0999. HENRY v. THE STATE. DO-034 C
DOYLE, Judge.
After a jury trial, Timothy Henry was convicted of two counts of aggravated
child molestation,1 two counts of aggravated sodomy,2 and one count of child
molestation.3 This Court affirmed the conviction on appeal.4 Henry filed a motion to
correct a void sentence, which motion the trial court denied. Henry appeals, and we
vacate Henry’s sentence and remand the case for resentencing.
1
OCGA § 16-6-4 (c).
2
OCGA § 16-6-2 (a) (2).
3
OCGA § 16-6-4 (a) (1).
4
See Henry v. State, 316 Ga. App. 132 (729 SE2d 429) (2012).
Although the record lacks a copy of the sentencing sheet, it is undisputed that
the trial court merged the two counts of aggravated child molestation into the two
counts of aggravated sodomy and sentenced Henry to two consecutive sentences of
life without parole. The trial court also sentenced Henry to twenty years
imprisonment for the child molestation count, which the court ran consecutive to the
two consecutive life sentences.
1. Henry first argues that the trial court improperly sentenced him to
consecutive life sentences without parole on the two counts of aggravated sodomy.
Henry is correct that under normal sentencing, a trial court may not impose a sentence
of life imprisonment without the possibility of parole unless the State sought the
death penalty in the case.5 Nevertheless, in the case of a recidivist offender in whose
prosecution the State has filed notice and certified copies of past convictions, such
a penalty may be imposed pursuant to OCGA § 17-10-7 (c),6 which holds that
[barring certain exceptions], any person who, after having been
convicted under the laws of this state for three felonies or having been
convicted under the laws of any other state or of the United States of
5
See, e.g., Velazquez v. State, 283 Ga. App. 863 (643 SE2d 291) (2007).
6
See State v. Jones, 253 Ga. App. 630, 632, n.2 (560 SE2d 112) (2002).
Compare with Velazquez, 283 Ga. App. at 863-864.
2
three crimes which if committed within this state would be 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.
Thus, like in State v. Jones, this sentence was proper
because [under] OCGA § 16-6-2 (b), the maximum punishment for
aggravated sodomy is life in prison[, and] OCGA § 17-10-7 (a)
require[d] that the trial court sentence [Henry] — a [four]-time recidivist
— to the maximum sentence. OCGA § 17-10-7 (c) require[d] that
[Henry] — a [four]-time recidivist — actually serve the maximum
sentence without the possibility of parole.7
Accordingly, this argument is without merit.
2. Henry also argues that the trial court improperly sentenced him to a 20-year
sentence of imprisonment for the child molestation count because the trial court was
required to sentence him to a split sentence “with at least one year of probation
included in each individual sentence.”8 The trial court failed to do this, and the State
concedes that Henry’s argument is correct. Accordingly, the trial court erred by
7
Jones, 253 Ga. App. at 632, n.2.
8
New v. State, 327 Ga. App. 87, 107-108 (5) (755 SE2d 568) (2014).
3
denying Henry’s motion to correct a void sentence, and the sentencing order is hereby
vacated, and the case is remanded for resentencing.
Sentence vacated and case remanded with direction. Ray, P. J., and Andrews,
J., concur.
4