Reconsideration denied July 22, 2015 -- Cert. applied for.
Aggravated assault, etc. Fulton Superior Court. Before Judge Glanville.
Kenneth D. Kondritzer, for appellant.
Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellee.
MILLER, Judge. Doyle, C. J., and Dillard, J., concur.
Steven Regent entered into a nonnegotiated 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 twenty years with twelve years to serve on the aggravated assault charge and a consecutive sentence of ten 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, contending that (1) the trial court 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 S.E.2d 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 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 [333 Ga.App. 351] 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 ...