Mallory v. the State

FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, 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
February 26, 2016
In the Court of Appeals of Georgia
A15A2343. MALLORY v. THE STATE.
BARNES, Presiding Judge.
Acting pro se, Quentin Mallory appeals the trial court’s denial of his motion
to remove a provision of his probation banishing him from Bartow and Gordon
Counties. For the reasons that follow, we affirm the trial court’s ruling.
A Bartow County jury convicted Mallory of robbery by force, false
imprisonment, and simple battery, and in October 2007, the trial court sentenced him
to serve 10 years in confinement, followed by 15 years on probation. The terms of his
probation directed that he have no contact with the victim or her place of work and
banished from Bartow and Gordon Counties, which comprise the Cherokee Judicial
Circuit.1
In June 2015, Mallory filed a pro se motion to modify the terms of his
probation. In his motion, he said that he had previously been released from
1
OCGA § 15-6-1 (9).
confinement under this sentence and had been placed on probation. He further stated
that, “[b]ecause of [his] inability to rely upon his only possible family support system
which is exclusively present in Bartow County, he again committed crimes while on
parole in Hall County. The Hall County sentence of twelve years, with six to serve,
is being served concurrently with the sentence in this case.”
Mallory alleged in his motion that the Board of Pardons and Paroles had
notified him that he was required to complete a work release program before he could
be released on parole. Due to his banishment from Bartow County, he asserts, the
Department of Corrections had advised him that he is ineligible for assignment to a
transition center to complete the work release program because his “only possible
parole addresses are with his family in Bartow County.” He acknowledged that
prohibiting contact with the victim was a reasonable requirement, but argued that he
had no prior history with the victim that would justify banning him from the area
completely. The trial court denied the motion to modify the term of probation, and
Mallory appeals.
Still acting pro se, Mallory asserts on appeal that the trial court abused its
discretion by imposing the banishment provision “without a rational basis” for doing
so, and in denying his motion to modify his sentence without considering either that
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he had no relationship with the victim or the impact of the provision on his
rehabilitation. He argues that the purpose of allowing a defendant to serve part or all
of a criminal sentence on probation is to permit the court to exercise supervisory
control over the rehabilitation of an individual who has committed criminal acts, and
that banishing him from Bartow County guarantees that he cannot succeed because
he needs a family support system “due to his intellectual and psychological
disabilities.”
Our constitution provides that “banishment beyond the limits of the state shall
[not] be allowed as a punishment for crime.” Ga. Const of 1983, Art. I, § I, ¶ XXI.
That provision “was first added in the 1877 version of the state constitution and has
been carried through verbatim in the present constitution.” Jason S. Alloy,
“‘158-County Banishment’ in Georgia: Constitutional Implications under the State
Constitution and the Federal Right to Travel,” 36 Ga. L. Rev. 1083, 1093 (2002). In
1974, our Supreme Court considered whether the original “drafters of this
constitutional provision intended to prohibit banishment ‘beyond the limits of the
state’ but not to prohibit banishment from specified areas within the state,” and
concluded that they did not intend to prohibit banishment from areas within the state.
State v. Collett, 232 Ga. 668 (208 SE2d 472) (1974).
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The legislature has also established that a sentencing court may require a
probationer to remain within a specified location during his period of probation, but
in 2006, it amended that provision to require that banishment to a particular area must
“consist of at least one entire judicial circuit as described by Code Section 15-6-1”
and cannot be an area where “any service or program in which the probationer must
participate as a condition of probation is not available.” OCGA § 42-8-35 (a) (6) (A),
(B).
Further, while “[t]he trial court has broad discretion in fashioning probation
conditions[, . . .] banishment conditions are not unlimited: such conditions must not
be unreasonable or otherwise fail to bear a logical relationship to the rehabilitative
scheme of the sentence pronounced.” (Citation and punctuation omitted.) Terry v.
Hamrick, 284 Ga. 24, 26-27 (3) (663 SE2d 256) (2008). And although the sentencing
court retains jurisdiction over a probationer and may revoke, rescind, or modify the
probation terms, OCGA § 42-8-34 (g), Mallory “bears the burden of demonstrating
that his sentence of banishment is unreasonable.” Shook v. State, 300 Ga. App. 59, 61
(3) (684 SE2d 129) (2009).
Our appellate court have not considered whether the proscriptions of OCGA
§ 42-8-35 (a) (6) apply when a trial court imposes a condition of probation that
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banishes a defendant from a particular location rather than confines him to a location,
although logically if one is banished from 158 counties, for example, one is therefore
confined to the remaining county. Our Supreme Court in Terry, 284 Ga. at 26 (3), n.
2., noted that the 2006 amendment to OCGA § 48-2-35 (a) (6) limiting a trial court’s
ability to confine a probationer to a particular area did not apply to the 1995 sentence
at issue in that case, which banished the defendant from all but one Georgia county,
and we have found no case specifically addressing this issue.
Here, Mallory has not met his burden of proving on the record that the
condition of probation banishing him from Bartow and Gordon Counties is
unreasonable. He was indicted for and convicted of (1) taking money from the victim
by force, (2) confining and detaining the victim without legal authority, and (3)
making physical contact of an insulting and provoking nature to the victim’s person.
As a condition of probation, Mallory would be required to avoid contact with the
victim and her place of work in addition to being banished from Bartow and Gordon
Counties. The record contains no evidence supporting Mallory’s contentions
regarding the restrictions on his ability to obtain release from confinement and begin
serving the remainder of his sentence under probation.
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Considering the absence of evidence to support Mallory’s contention that the
terms of his probation are unreasonable, we cannot say the trial court abused its
discretion by denying Mallory’s motion to modify his sentence.
Judgment affirmed. Ray and McMillian, JJ., concur.
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