Donta Q. Johnson v. State

Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 30, 2019
The Court of Appeals hereby passes the following order:
A20A0359. DONTA Q. JOHNSON v. THE STATE.
Donta Q. Johnson was convicted for rape, aggravated sodomy, aggravated child
molestation, two counts of aggravated sexual battery, three counts of child
molestation, and battery, family violence. The trial court subsequently denied
Johnson’s motion for new trial, but noted a sentencing error and determined that
Johnson should be re-sentenced to reflect split sentences on the child molestation
counts. Johnson sought to appeal the trial court’s decision, but we dismissed his
appeal for failing to follow the interlocutory application procedures. Case No.
A18A0769 (decided December 7, 2017). Johnson was re-sentenced in April 2018.
Johnson then filed a motion for de novo hearing, which the trial court denied.
Johnson appealed, and his appeal was dismissed for failing to file a brief. See Case
No. A19A1597 (decided April 15, 2019). In June 2019, Johnson filed a “Motion to
Correct Void Sentence” and a “Motion in Arrest, to Stay the Judgment, to Correct a
Void Judgment and Sentence” challenging his convictions and sentences as void.
The trial court denied the motions, and Johnson filed this direct appeal. We,
however, lack jurisdiction.
“[A] petition to vacate or modify a judgment of conviction is not an appropriate
remedy in a criminal case.” Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786)
(2009). Any appeal from an order denying or dismissing such a petition or motion
must be dismissed. See Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150) (2010);
Harper, 286 Ga. at 218 (2). Consequently, this Court lacks the authority to review
Johnson’s post-appeal challenges to his convictions. See Roberts, 286 Ga. at 532;
Harper, 286 Ga. at 218 (2).
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). 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.
In his motions to correct a void sentence, Johnson contended that: (i) the State
failed to disclose evidence; (ii) two counts should have merged; (iii) his trial counsel
rendered ineffective assistance in several respects; and (iv) “the essential element of
the fact-causation [was] omitted.” None of these challenges – which are directed to
Johnson’s convictions, and not his sentences – raise a colorable argument that his
sentence is void. See von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446)
(2013) (“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.”).
The only contention relating to Johnson’s sentence was that he did not receive
split sentences for his child molestation counts in violation of OCGA § 17-10-6.2 (b).
However, his contention is without merit because the trial court specifically re-
sentenced Johnson giving him split sentences on those counts.
For these reasons, we lack jurisdiction over this appeal, which is hereby
DISMISSED. See Roberts, 286 Ga. at 532; Harper, 286 Ga. at 218 (2); Jones, 278
Ga. at 671; Frazier, 302 Ga. App. at 349.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
09/30/2019
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.