Regent v. the State

FOURTH DIVISION
DOYLE, C. J.,
MILLER and DILLARD, 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/
July 9, 2015
In the Court of Appeals of Georgia
A14A1770. REGENT v. THE STATE.
MILLER, Judge.
Steven Regent entered into a non-negotiated guilty plea to one count of
aggravated assault (OCGA § 16-5-21 (a) (2)) and one count of aggravated battery
(OCGA § 16-5-24 (a)). The trial court sentenced Regent to 20 years with 12 years to
serve on the aggravated assault charge and a consecutive sentence of 10 years on the
aggravated battery charge. The trial court also banished Regent from all of Georgia,
except for Toombs County, as a special condition of probation. Following the grant
of his petition for habeas relief, Regent appeals,1 contending that (1) the trial court
1
Regent entered his guilty plea on December 18, 2008. On March 11, 2014, the
United States District Court for the Northern District of Georgia granted Regent’s
habeas petition on the grounds that he was denied his constitutional right to appellate
counsel.
erred in denying his motion to merge his convictions, and (2) the trial court violated
OCGA § 42-8-35 (a) (6) (A) by banishing him from the entire state, except for
Toombs County. For the reasons that follow, we affirm Regent’s convictions and his
separate sentences for aggravated assault and aggravated battery. We vacate the
banishment provision in his sentencing order, however, and we remand this case to
the trial court solely for the purpose of resentencing on that provision.
Where, as here, the merger issue arises in a guilty plea case, this Court is
limited to finding error, as in all cases, based on the record. . . . While
a defendant does not waive consideration of merger issues by pleading
guilty, his guilty plea does waive the expansion of the factual record that
occurs with a trial. The practical effect of that waiver will usually mean
that he cannot establish (and the court cannot discern) that any of his
convictions merged, particularly as a matter of fact, based on the limited
record.
Nazario v. State, 293 Ga. 480, 488 (2) (d) (746 SE2d 109) (2013).
So viewed, the limited record from Regent’s guilty plea hearing shows that on
January 27, 2008, Regent and his girlfriend, the victim, went to a birthday party.
When they returned to the victim’s house, Regent suddenly punched her in the face.
Regent then grabbed the victim and hit her again. The victim fell to the floor, and
Regent jumped on top of her and continued punching her in the face, until her eyes
2
became swollen and she could not see. Regent became enraged and began to yell, “I’ll
show you. I’ll get you.” The victim tried to get away from Regent and grab the phone,
but he continued to beat her. When Regent stopped for a second, the victim heard him
repeat, “I’ll show you. I’ll get you.”
When the victim was halfway unconscious, Regent dragged her into the dining
room area, and went into the kitchen. The victim then heard Regent pull a knife out
of the wooden butcher block on her kitchen counter. Regent came back to the dining
room, straddled the victim, grabbed her hands, and pinned them down. Regent then
took the knife and cut her throat from ear to ear, almost cutting her ear off. The victim
felt her skin tearing and she began to scream. Regent then took the knife and cut the
victim’s neck again, this time below the area where he first slit her throat.
When she fought Regent and tried to get away from him, the victim also
suffered several deep cuts to her hands. The victim’s ring finger was cut to the bone
and a piece of her thumb was cut off, resulting in hypersensitivity in certain parts of
her hand and no feeling in other parts of her hand. .
The victim finally fainted and when she woke up, she saw that her blood was
everywhere, including on her ceiling, walls and floor. The victim ran out of her front
3
door and went to a neighbor’s house for help. When her neighbor failed to respond,
the victim ran into the street and eventually found someone to call 911.
The victim was taken to the hospital where she remained in intensive care on
a respirator for three days and underwent surgeries to reattach the glands and nerves
in her neck. The main nerve going to the side of her face was completely severed and
doctors could not reconnect that nerve without causing more damage to the victim’s
face. As a result of her injuries, the victim has difficulty speaking, eating and
swallowing. The victim also lost her sense of taste, and she has no feeling on the side
of her face.
1. Regent argues that the trial court erred in failing to merge his convictions
because the same facts were required to prove both the aggravated assault and
aggravated battery charges. We disagree.
In determining whether one crime merges with another, we apply the required
evidence test set forth in Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530)
(2006).
Under the required evidence test, . . . the applicable rule is that where
the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are
4
two offenses or only one, is whether each provision requires proof of a
fact which the other does not.
(Punctuation and footnote omitted.) Drinkard, supra, 281 Ga. at 215; see also Thomas
v. State, 292 Ga. 429, 433 (4) (738 SE2d 571) (2013).
“A person commits the offense of aggravated assault when he or she assaults
. . . [w]ith a deadly weapon or with any object, device, or instrument which, when
used offensively against a person, is likely to or actually does result in serious bodily
injury.” OCGA § 16-5-21 (a) (2). Regent was charged with and pled guilty to this
offense because he cut the victim’s throat with a knife. The evidence presented at the
plea hearing supported Regent’s conviction and separate sentence for this offense.
A person commits aggravated battery when he maliciously causes bodily harm
to the victim by rendering a member of her body useless. OCGA § 16-5-24 (a).
Regent was charged with and pled guilty to aggravated battery because he seriously
disfigured the victim’s body by slashing her throat. As a result of her injuries, the
victim has difficulty speaking, eating and swallowing, she lost her sense of taste, and
she has no feeling on the side of her face. The evidence presented at the plea hearing
also supported Regent’s conviction and separate sentence for this offense.
5
Since aggravated assault and aggravated battery are two separate offenses with
different elements of proof, the charges do not merge, and it is irrelevant that both
crimes stemmed from a single act or series of continuous acts.2 See Works v. State,
301 Ga. App. 108, 114 (6) (686 SE2d 863) (2009); Robbins v. State, 293 Ga. App.
584, 585-586 (667 SE2d 684) (2008). Accordingly, the trial court did not err in
failing to merge Regent’s convictions for sentencing purposes.
2. Regent contends that the trial court violated OCGA § 42-8-35 (a) (6) (A) by
banishing him from the entire state, except for Toombs County.
The legislature has expressly provided that banishment is a valid term and
condition of probation. See OCGA § 42-8-35 (a) (6) (A). The trial court, however,
cannot banish a probationer to any area within the state that does not consist of at
least one entire judicial circuit. See id. Since Toombs County is part of the five-
county Middle Judicial Circuit, which also includes Emanuel, Jefferson, Washington,
and Candler Counties, the trial court was not statutorily authorized to banish Regent
2
In this case, Regent cut or slashed the victim’s throat twice in apparently
quick succession. Nevertheless, aggravated assault and aggravated battery are two
separate offenses, even if they stem from a single act. See Works, supra, 301 Ga. App.
at 114 (6).
6
from the entire state, except for Toombs County. See OCGA §§ 15-6-1 (24) and 42-8-
35 (a) (6) (A).
Banishment from the entire state, except for the five-county Middle Judicial
Circuit was presumably an appropriate special probation condition. Nevertheless,
because Regent’s sentencing order does not provide for banishment to the entire
Middle Judicial Circuit, we are constrained to vacate the banishment provision in
Regent’s sentencing order and remand this case to the trial court solely for the
purpose of resentencing Regent on this provision. In doing so we emphasize that
Regent’s sentence of 20 years with 12 years to serve on the aggravated assault charge
and a consecutive sentence of 10 years on the aggravated battery charge stands
affirmed.
Judgment affirmed in part, vacated in part and case remanded. Doyle, C. J.,
and Dillard, J., concur.
7