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Pope v. State

Supreme Court of Georgia

June 19, 2017

POPE
v.
THE STATE.

          HINES, Chief Justice.

         This is a pro se appeal by prisoner Jomekia Dechelle Pope from an order of the Superior Court of Bibb County denying his "motion to vacate a void and illegal sentence, " "motion to withdraw Alford (guilty) plea, " and "motion for appointment of counsel." For the reasons which follow, we reverse and remand this case with direction to the superior court.

         The following is undisputed. On May 1, 2007, Pope was indicted for malice murder, felony murder while in the commission of aggravated battery, and arson in the first degree in connection with the 2005 immolation of his fiancée, Latosha Taylor. The State filed a notice of intent to seek the death penalty. On January 8, 2013, Pope entered Alford[1] pleas to the counts in the indictment, and in exchange, the State removed the death penalty as an option. Following a two-day sentencing hearing, on January 15, 2013, the superior court sentenced Pope to life in prison without the possibility of parole for malice murder plus twenty years in prison for first- degree arson; the felony murder stood vacated by operation of law. Two days later, on January 17, 2013, the superior court filed a document entitled "Factual Support of Aggravating Circumstances Justifying Sentence of Life Without Possibility of Parole, " in which it set forth as aggravating circumstances that Pope committed the murder while engaged in both aggravated battery and arson, which it found were "established as a matter of law by the allegations of the indictment to which defendant pled guilty." On February 12, 2016, Pope filed the three aforementioned pro se motions, all of which the superior court denied on April 21, 2016 in the single order now at issue.

         Pope contends that his sentence of life without the possibility of parole is void under former OCGA § 17-10-32.1, [2] because the sentencing court failed to comply with it. We agree.

Former OCGA § 17-10-32.1 provided:
(a) Subject to the provisions of subsection (b) of this Code section, any person who has been indicted for an offense for which the death penalty or life without parole may be imposed may enter a plea of guilty at any time after indictment, and the judge of the superior court having jurisdiction may, in the judge's discretion, sentence the person to life imprisonment or to any other punishment authorized by law for the offense named in the indictment.
(b) Unless the district attorney has given notice that the state intends to seek the death penalty pursuant to the Uniform Rules of the Superior Courts, the judge shall sentence the defendant to life imprisonment. In cases where such notice has been given, the judge may sentence the defendant to death or life without parole only if the judge finds beyond a reasonable doubt the existence of at least one statutory aggravating circumstance as provided in Code Section 17-10-30.[3]

(Emphasis supplied.)

         As a criminal statute, former OCGA § 17-10-32.1 is to be strictly construed against the State; consequently, a defendant pleading guilty in a death penalty case cannot be sentenced to life without the possibility of parole unless the sentencing court makes a specific finding of a statutory aggravating circumstance beyond a reasonable doubt, contemporaneously with the sentencing. Cordova v. State, 297 Ga. 26, 27-28 (771 S.E.2d 884) (2015); Pierce v. State, 289 Ga. 893, 896(3) (717 S.E.2d 202) (2011). The requirement that such finding be contemporaneous with the sentencing is rooted in concerns of due process. Hughes v. State, 269 Ga. 819, 821(2) (504 S.E.2d 696) (1998).

To interpret the statute otherwise - so as to permit a judge to find a statutory aggravating circumstance after sentencing a defendant to life without parole- would constitute a denial of due process because the defendant would have been deprived of an opportunity to be heard before the imposition of sentence.

Id.

         Yet, that is precisely what happened in this case. There was no aggravating circumstance specified at the time of sentencing, so the statutory requirement was not met. Id. And, the sentencing court's belated filing of its "Factual Support of Aggravating Circumstances Justifying Sentence of Life Without Possibility of Parole, " two days following Pope's sentencing did not cure the fatal defect.

         Inasmuch as the sentencing court did not fulfill the requirements of former OCGA § 17-10-32.1, the sentence of life without the possibility of parole imposed upon Pope is void and must be vacated. Cordova v. State, supra at 28.

         As to the propriety of the superior court's denial of Pope's motion to withdraw his Alford (guilty) plea and his motion for appointment of counsel, such rulings are inextricably linked to the court's erroneous denial of Pope's motion to vacate his sentence of life in prison without the possibility of parole. The superior court denied his motion to withdraw the Alford (guilty) plea based primarily upon its finding that the motion was untimely as it was filed more than two years after Pope's sentence was imposed, [4] and it denied his motion for appointment of counsel after finding that Pope had no right to the appointment of counsel because his ...


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