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Bihlear v. State

Court of Appeals of Georgia, Fifth Division

May 10, 2017

BIHLEAR
v.
THE STATE.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          McFadden, Presiding Judge.

         In 2007, Christopher Bihlear was convicted of armed robbery and sentenced as a recidivist to life in prison without parole. He directly appealed from his conviction and we affirmed that judgment in Bihlear v. State, 295 Ga.App. 486 (672 S.E.2d 459) (2009). In 2015, he filed a pro se "Motion to Correct Void Sentence, " which the trial court denied. Bihlear now appeals from that ruling, and the state moves to dismiss the appeal. We deny the state's motion to dismiss, because Bihlear has stated a colorable claim for void sentence over which we have appellate jurisdiction and the state has not supported its assertion that a non-lawyer other than Bihlear drafted the motion and filed the notice of appeal. However, we affirm the judgment because the trial court correctly determined that Bihlear's sentence was not void.

         1. Motion to dismiss appeal.

         The state moves to dismiss Bihlear's appeal on two grounds: because we lack jurisdiction over the appeal, and because a non-lawyer other than Bihlear drafted the motion and filed the appeal. Because neither argument has merit, we deny the state's motion to dismiss.

         (a) Appellate jurisdiction.

         The state argues that we lack jurisdiction over this appeal from the trial court's ruling on Bihlear's "Motion to Correct Void Sentence" because Bihlear did not raise a colorable claim of voidness in that motion. While the denial of a motion to correct a void sentence is directly appealable, "in determining whether a purported motion to correct . . . a void sentence is in fact such a motion, we look to the substance of the motion rather than its nomenclature." Coleman v. State, 305 Ga.App. 680 (700 S.E.2d 668) (2010) (citations omitted). If an appellant's claims of error do not present a colorable claim of voidness, he is not entitled to a direct appeal from the trial court's denial of his motion to correct a void sentence, even if he characterizes his sentence as "void." Id. at 681; Burg v. State, 297 Ga.App. 118, 119 (676 S.E.2d 465) (2009).

          "A sentence is void if the court imposes punishment that the law does not allow." Crumbley v. State, 261 Ga. 610, 611 (1) (409 S.E.2d 517) (1991) (citation omitted). "Motions to vacate [or correct] 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 applies." von Thomas v. State, 293 Ga. 569, 572 (2) (748 S.E.2d 446) (2013) (citations omitted).

         In his motion, Bihlear claimed that the law did not allow his recidivist sentence of life without parole because the state and the trial court had not satisfied certain statutory prerequisites for such a sentence. While Bihlear's motion is without merit for the reasons described below, it nevertheless presented a colorable claim for a void sentence. See Dempsey v. State, 279 Ga. 546, 549 (4) (615 S.E.2d 522) (2005) (sentence for life without parole is void if not in conformity with statute governing recidivist sentencing); State v. Willis, 218 Ga.App. 402, 404 (5) (461 S.E.2d 576) (1995) (same); see also Kimbrough v. State, 300 Ga. 516, 518-520 (3) (796 S.E.2d 694) (2017) (considering but rejecting on the merits, rather than dismissing, appellant's claim that recidivist sentence of life without parole for murder conviction was void because state did not meet statutory requirement of giving notice of intent to seek death penalty). Consequently, Bihlear was entitled to a direct appeal from the trial court's order denying his motion.

         (b) Involvement of non-lawyer.

         The state argues that we should dismiss Bihlear's appeal because a non-lawyer was involved in drafting his motion and filing his notice of appeal. Assuming without deciding that this would be a ground for dismissal, the appellate record does not support the state's assertion that any such involvement occurred. Bihlear signed both pleadings as a pro se litigant, and the appellate record has not been developed to show that any other person was acting on Bihlear's behalf. We therefore decline to dismiss the appeal on this ground.

         2. Motion to correct void sentence.

         Bihlear argues that the law did not authorize his sentence of life without parole for armed robbery, and thus his sentence was void and the trial court erred in denying his motion to correct void sentence. We disagree.

         The trial court imposed Bihlear's sentence for armed robbery pursuant to the recidivist sentencing provisions of OCGA § 17-10-7 (a) and (c). The Code section setting forth the offense of armed robbery, OCGA § 16-8-41, authorizes life imprisonment as a punishment. See Lester v. State, 309 Ga.App. 1, 5 (2) (710 S.E.2d 161) (2011). And OCGA ยง 16-8-41 permits a recidivist sentence requiring a person to serve a sentence ...


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