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Parham v. State

Court of Appeals of Georgia, First Division

September 8, 2017

PARHAM
v.
THE STATE.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          BARNES, PRESIDING JUDGE.

         A jury found Charles Frank Parham guilty of two counts of theft by deception, and the trial court sentenced him as a recidivist under OCGA § 17-10-7 (a) and (c) based on his prior felony convictions. The trial court thereafter denied Parham's motion for a new trial, as amended. On appeal, Parham argues that the trial court erred in sentencing him under the general recidivist statute, OCGA § 17-10-7 (a) and (c), because only the more specific recidivist provision for theft-by-deception convictions, OCGA § 16-8-12 (a) (1) (D), applied in this case. Parham also argues that his trial counsel rendered ineffective assistance by failing to object to the trial court sentencing him under the general recidivist statute. For the reasons discussed more fully below, we conclude that the trial court was authorized to sentence Parham under the general recidivist statute and therefore affirm.

         The record reflects that Parham was indicted on two counts of theft by deception in violation of OCGA § 16-8-3 (a). The indictment alleged that Parham had two prior misdemeanor convictions for theft by deception, such that Parham was eligible for felony punishment under the specific recidivist provision applicable to certain theft offenses, OCGA § 16-8-12 (a) (1) (D). Before trial, the State also served Parham with notice of its intent to seek to punish him as a habitual felon under the general recidivist statute, OCGA § 17-10-7 (a) and (c), based on his prior convictions for several felony offenses.

         Parham proceeded to trial and was found guilty on both counts of theft by deception. At the sentencing hearing, the State introduced evidence of Parham's 27 prior convictions for various offenses, including the two prior misdemeanor convictions for theft by deception referenced in the indictment, five prior felony convictions for theft by shoplifting, and a prior felony conviction for financial transaction card fraud. The trial court elected to treat Parham's current theft-by-deception convictions as felonies under OCGA § 16-8-12 (a) (1) (D) in light of his two prior misdemeanor convictions for that offense. Additionally, pursuant to OCGA § 17-10-7 (a) and (c), the trial court found that Parham was a habitual felon in light of his other multiple prior felony convictions, and the court sentenced him to a term of five years in prison on Count 1 and to a term of five years, to serve three years in prison, on Count 2, with the sentences to run consecutively, for a total term of 10 years, with the first eight years in prison. Because he was sentenced as a habitual felon under the general recidivist provisions of OCGA § 17-10-7 (a) and (c), Parham is ineligible for parole and thus will be required to serve the full eight years in prison. See Wynn v. State, 332 Ga.App. 429, 437 (5) (773 S.E.2d 393) (2015).

         Parham filed a motion for new trial, as amended, in which he argued that the trial court erred in sentencing him pursuant to the general recidivist statute and contended that his trial counsel rendered ineffective assistance by failing to raise such an objection during the sentencing hearing. The trial court denied Parham's amended motion, resulting in this appeal.

         1. Parham maintains that the trial court erred in sentencing him under the general recidivist statute, OCGA § 17-10-7 (a) and (c), because OCGA § 16-8-12 (a) (1) (D) is the more specific recidivist provision applicable to his theft-by-deception convictions. According to Parham, the general and specific recidivist provisions are mutually exclusive and inconsistent with one another, and the trial court thus should have sentenced him as a recidivist only under the more specific provision of OCGA § 16-8-12 (a) (1) (D), which gave the court discretion to impose a sentence of between one and five years on each count if the trial court elected to sentence him as for a felony.[1] Consequently, Parham argues, his sentence was void and should be vacated. We are unpersuaded.

         In ascertaining the meaning of statutory provisions, the fundamental rules of statutory construction require us to construe statutes according to their terms, afford words their plain and ordinary meaning, and avoid constructions that make some language meaningless or mere surplusage. See State v. Mussman, 289 Ga. 586, 588 (1) (713 S.E.2d 822) (2011). Language in one provision of a statute must be construed in light of the other provisions of the same statute, Fair v. State, 288 Ga. 244, 252 (2) (702 S.E.2d 420) (2010), and "all statutes relating to the same subject-matter, briefly called statutes 'in pari materia, ' are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto." (Citation and punctuation omitted.) Goldberg v. State, 282 Ga. 542, 546 (651 S.E.2d 667) (2007).

         Mindful of these rules of construction, we turn to the pertinent statutory framework and the arguments raised in the present appeal. OCGA §§ 16-8-2 through 16-8-9 set forth a series of theft-related criminal offenses, including theft by deception, OCGA § 16-8-3 (a). OCGA § 16-8-12 then delineates the ranges of punishment for different types of theft committed under OCGA §§ 16-8-2 through 16-8-9. OCGA § 16-8-12 (a) provides that, as a general rule, a defendant convicted of a theft offense under OCGA §§ 16-8-2 through 16-8-9 should be punished as for a misdemeanor. However, OCGA § 16-8-12 (a) (1) (D), the specific recidivist provision at issue here, states:

If the defendant has two prior convictions for a violation of Code Sections 16-8-2 through 16-8-9, upon a third conviction or subsequent conviction, such defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years and, in the discretion of the trial judge, as for a misdemeanor[.]

         Georgia's general recidivist statute is codified at OCGA § 17-10-7. Pursuant to OCGA § 17-10-7 (a), [2] a defendant convicted of a second felony offense "shall be sentenced to the longest period of time prescribed for punishment of the second offense, although the sentencing court may probate or suspend the maximum sentence." Wynn, 332 Ga.App. at 437 (5). Pursuant to OCGA § 17-10-7 (c), [3] a defendant convicted of a fourth felony offense "must serve the maximum time sentenced 'and shall not be eligible for parole until the maximum sentence has been served.'" Id., quoting OCGA § 17-10-7 (c). Significantly, OCGA § 17-10-7 (e) of the general recidivist statute provides that the statute "is supplemental to other provisions relating to recidivous offenders."

         "[A] specific statute will prevail over a general statute, absent any indication of a contrary legislative intent." (Citation and punctuation omitted; emphasis supplied.) Williams v. State, 299 Ga. 632, 634 (791 S.E.2d 55) (2016). Based on the plain and unambiguous language of OCGA § 17-10-7 (e), our Supreme Court has held that "the General Assembly has expressly indicated its intent that OCGA § 17-10-7 and other recidivist sentencing provisions . . . be construed harmoniously" rather than in conflict with one another whenever it is possible to do so. Goldberg, 282 Ga. at 544. See Butler v. State, 281 Ga. 310, 311-312 (637 S.E.2d 688) (2006). To that end, our Supreme Court has held that the general recidivist provisions of OCGA § 17-10-7 should be read as supplementing a specific recidivist provision found in another statutory sentencing scheme, so long as the specific recidivist provision does not contain language "blocking" the application of OCGA § 17-10-7. Goldberg, 282 Ga. at 544-547. See Butler, 281 Ga. at 311-312.

         In Goldberg, 282 Ga. at 544-547, our Supreme Court illustrated the manner in which to harmonize the general recidivist statute with other specific recidivist provisions. The defendant in that case was convicted and sentenced for burglary, and it was his fifth felony conviction and his third for burglary. Id. at 542. The specific recidivist statute for habitual burglars, OCGA § 16-7-1 (b), authorized a sentence of "imprisonment for not less than five nor more than 25 years" for a third burglary conviction and did not contain any language blocking the application of the general recidivist statute, OCGA § 17-10-7.[4] Harmonizing those statutes, the Supreme Court held that the "specific recidivist statute [for burglary] applies when the defendant is a habitual burglar having only prior convictions for burglary, whereas the . . . general recidivist statute applies when the defendant is a habitual felon with prior convictions for other crimes." Id. at 547. Because the defendant's conviction in Goldberg represented not only his third burglary conviction but his fifth felony conviction, the Supreme Court held that he was more than a habitual burglary under the specific recidivist provision of OCGA § 16-7-1 (b) and thus could be sentenced under the general recidivist statute. Goldberg, 282 Ga. at 545. The Supreme Court noted that "[a]ny other holding [would] fail[] to give effect to the General Assembly's intent that subsection (e) of OCGA s 17-10-7 be given substantive consideration." Id.

         Applying the reasoning and methodology of Goldberg to the present case, we conclude that the trial court committed no error in sentencing Parham as a habitual felon under the general recidivist provisions of OCGA § 17-10-7 (a) and (c). The specific recidivist provision applicable to theft by deception and certain other theft convictions, OCGA § 16-8-12 (a) (1) (D), does not contain any language blocking the application of the general recidivist statute, and thus the general recidivist statute must be read as supplementing rather than conflicting with the specific recidivist provision in accordance with the mandate of OCGA § 17-10-7 (e). See Goldberg, 282 Ga. at 544-547; Butler, 281 Ga. at 311-312. Compare Mann v. State, 273 Ga. 366, 368-369 (1) (541 S.E.2d 645) (2001) (defendant properly sentenced under OCGA § 16-13-30 (d), the specific recidivist statute for certain drug offenses, rather than under the general recidivist statute, where the specific statute expressly stated that "[t]he provisions of subsection (a) of Code Section 17-10-7 shall not apply to a sentence imposed for a second such offense"). When OCGA § 16-8-12 (a) (1) (D) and the general recidivist statute are harmonized, the former provision applies when a defendant is a repeat offender having only prior convictions for theft offenses under OCGA §§ 16-8-2 through 16-8-9, or when the trial court ...


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