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Hillman v. Johnson

Supreme Court of Georgia

June 29, 2015

HILLMAN
v.
JOHNSON, WARDEN

Editorial Note:

This opinion is uncorrected and subject to revision by the court.

Judgment affirmed in part and reversed in part, and case remanded with direction.

NAHMIAS, Justice. All the Justices concur.

OPINION

Page 616

Nahmias, Justice.

Marvin Hillman, III appeals the denial of his petition for habeas corpus. As explained below, we conclude that, as the Court of Appeals held in King v. State, 169 Ga.App. 444 (313 S.E.2d 144) (1984), OCGA § 17-10-7 (a), which requires courts to sentence defendants with a prior felony conviction to the maximum time authorized for any subsequent conviction, does not apply to violations of OCGA § 16-11-131. That statute, which was enacted after § 17-10-7, prohibits persons with a prior felony conviction from possessing firearms (being a " felon-in-possession" ) and provides a general sentencing range of one to five years, which would be rendered meaningless if § 17-10-7 (a) applied. However, contrary to several post- King decisions of the Court of Appeals, we conclude that § 17-10-7 (a) does apply to convictions for crimes that do not have as an element the defendant's prior conviction of a felony, even if the prior felony that invokes the recidivist sentencing enhancement under § 17-10-7 (a) is also the basis for a conviction for violating the felon-in-possession statute in the same case. Accordingly, we affirm in part and reverse in part the habeas court's judgment, and we remand the case to the habeas court with direction to vacate Hillman's five-year sentence for possession of a firearm by a convicted felon and to remand the case to the trial court for resentencing on that one conviction.

1. In January 2008, Hillman was convicted in the Superior Court of Peach County of two counts of armed robbery and one count each of burglary, aggravated assault, and possession of a firearm by a convicted felon in connection with an armed home invasion in which Hillman and his accomplices stole a cell phone and $7. The felon-in-possession charge under OCGA § 16-11-131 was based on Hillman's prior felony conviction for hindering

Page 617

the apprehension of a criminal, for which he was sentenced to confinement for three years, with the sentence probated. Based on that prior felony conviction and OCGA § 17-10-7 (a), the trial court concluded that it was required to sentence Hillman to the maximum time authorized for each offense.[1] The court therefore sentenced Hillman to serve life in prison for each armed robbery, 20 years for burglary, 20 years for aggravated assault, and five years for possession of a firearm by a convicted felon, with all sentences running concurrently. The Court of Appeals affirmed in Hillman v. State, 296 Ga.App. 310 (674 S.E.2d 370) (2009). Attorney Robert Bearden, Jr. represented Hillman both at trial and on direct appeal.

On February 21, 2013, represented by new counsel, Hillman filed a petition for habeas corpus in the Superior Court of Hancock County, where he is serving his sentences. The petition alleged, among many other things, that Bearden provided ineffective assistance of counsel by failing to challenge at trial and on appeal the " dual use" of Hillman's prior felony conviction to convict him of the felon-in-possession charge and to sentence him as a recidivist on all of his convictions under § 17-10-7 (a). After holding an evidentiary hearing, the habeas court entered an order denying relief on April 9, 2014. Hillman filed a timely notice of appeal and application for a certificate of probable cause to appeal, and this Court granted the application, posing a single question:

Whether petitioner established that counsel was ineffective for failing to challenge the recidivist sentences as improper under King v. State, 169 Ga.App. 444 (313 S.E.2d 144) (1984). See also State v. Slaughter, 289 Ga. 344 (711 S.E.2d 651) (2011).

2. Hillman contends that the habeas court erred in rejecting his ineffective assistance claim based on Bearden's failure to challenge the use of his prior felony conviction to enhance the sentences for all of his convictions. Hillman bases this contention on the Court of Appeals' decision in King and on later cases from that court which purported to apply King. We turn first to an examination of those cases and then apply our conclusions to the habeas court's rulings in this case.

(a) In King, the Court of Appeals considered the application of OCGA ยง 17-10-7 (a) to violations of the felon-in-possession statute, OCGA ...


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