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Hood v. State

Court of Appeals of Georgia, First Division

October 19, 2017

HOOD
v.
THE STATE.

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

          MERCIER, JUDGE.

         On April 18, 2011, James Hood pled guilty in the Superior Court of Polk County to one count of child molestation and one count of statutory rape. On the same date, the trial court sentenced Hood to 20 years (10 to serve, with the remainder on probation) on Count 5, statutory rape, and to 15 years of probation on Count 1, child molestation, to run consecutively to Count 5. The sentencing order was entered on April 25, 2011. On January 4, 2016, acting pro se, Hood filed a "Motion to Vacate Void Sentence, " contending that the statutory rape charge should have merged into the child molestation charge and that the trial court "failed to split each count of [his] sentence in violation of OCGA § 17-1-6.2." In an order entered on January 26, 2016, the trial court denied Hood's motion, stating that it "[found] no legal pleading to be filed in [the] [c]ourt, and no issue filed to be considered[.]"

         On May 16, 2016, Hood filed a motion for out-of-time appeal (the "first motion"), asserting that through no fault of his own, he was unaware of the court's denial of his motion to vacate void sentence until May 9, 2016. On June 21, 2016, the court entered an order denying Hood's first motion, noting that a defendant seeking an out-of-time appeal "must show that he was entitled to a direct appeal, " and finding that Hood had "established nothing in his [m]otion that would cause [the] [c]ourt to grant him the relief requested[.]"

         Hood filed a second motion for out-of-time appeal (the "second motion") on November 28, 2016, again arguing that he did not receive timely notice of the trial court's denial of his motion to vacate void sentence, but also stating that he received no timely notice of the trial court's denial of his first motion for out-of-time appeal. On January 4, 2017, the trial court denied Hood's second motion, noting that it had "denied an almost duplicate motion on June 17, 2016 as well as denied a Motion to Vacate Void Sentence on January 26, 2016" and again noting that a "defendant must show that he was entitled to a direct appeal" when seeking an out-of-time appeal. The trial court did not address Hood's claim that he received no timely notice of its decisions denying his motion to vacate void sentence and denying the first motion for out-of-time appeal.

         Hood appeals the denial of his second motion for out-of-time appeal. He contends that the trial court erred when it denied that motion;[1] that it violated his Fifth [sic] Amendment rights when it sentenced him separately for two offenses that should have been merged; and that it violated his Fifth [sic] Amendment rights when it failed to sentence him to a split sentence on each count of which he was convicted. For the reasons that follow, we vacate in part the trial court's order denying his second motion for out-of-time appeal, to the extent it held that Hood was not entitled to a direct appeal from the denial of his motion to vacate void sentence as to the void sentence claim raised therein; affirm that order in part to the extent it held that Hood was not entitled to a direct appeal from the denial of his motion to vacate void sentence as to the merger claim raised therein; vacate Hood's sentence on his child molestation conviction; and remand this case to the trial court for resentencing.

         The denial of a motion for an out-of-time appeal is, in general, directly appealable. Butts v. State, 244 Ga.App. 366-367 (536 S.E.2d 154) (2000) (denial of motion for out-of-time appeal is directly appealable); see Richards v. State, 275 Ga. 190, 191 (563 S.E.2d 856) (2002) (denial of a motion for out-of-time appeal from criminal conviction is directly appealable when the conviction at issue has not undergone appellate review). "The denial of a motion for an out-of-time appeal is a matter within the discretion of the trial court, and the trial court's decision will not be reversed absent abuse of such discretion." Copeland v. State, 264 Ga.App. 905, 906 (592 S.E.2d 540) (2003) (citation and punctuation omitted). The movant "bears the burden of showing 'good and sufficient' reason entitling him to an out-of-time appeal." Syms v. State, 240 Ga.App. 440, 441 (1) (523 S.E.2d 42) (1999) (citations and punctuation omitted).

         Citing Syms, supra, and using identical language as that in its denial of the first motion, the Court denied the second motion on the basis that Hood had not demonstrated that he was entitled to a direct appeal, implying that it was basing its decision on the issue of whether Hood was entitled to a direct appeal from the motion to vacate void sentence, as it did in its denial of the first motion. The trial court is correct that "an out-of-time appeal is a remedy for a frustrated right of appeal; therefore, [the defendant] must show that he was entitled to a direct appeal." Syms, supra at 441 (1). A motion to vacate a void sentence is, in general, directly appealable. Copeland, supra. We begin our analysis with Hood's claims in his motion to vacate void sentence.

         1. Hood contended in the trial court, and contends here, that his sentence is void because it does not comply with the requirements of OCGA § 17-10-6.2. "[A] sentencing court has jurisdiction to vacate a void sentence at any time." Von Thomas v. State, 293 Ga. 569, 571 (2) (748 S.E.2d 446) (2013).

A trial court has no jurisdiction to modify a sentence after the term of court ends or 60 days pass. Where a sentence is void, however, the court may resentence the defendant at any time. A sentence is void if the court imposes punishment that the law does not allow. . . .[A] direct appeal lies from the denial of a petition attacking a sentence based upon the contention that it is void.

Copeland, supra at 906 (citations, punctuation and emphasis omitted); Williams v. State, 271 Ga. 686, 688-689 (1) (523 S.E.2d 857) (1999). "[A] direct appeal does not lie from the denial of such motion unless it raises a colorable claim that the sentence is, in fact, void." Burg v. State, 297 Ga.App. 118, 119 (676 S.E.2d 465) (2009). Hood raised a colorable claim that his sentence is void and, thus, he was entitled to file a direct appeal from the denial of his motion to vacate void sentence, and to file a direct appeal from the subsequent denial of his first motion for out-of-time appeal.

         The offenses to which Hood pled guilty were alleged to have occurred between December 1, 2008 and May 31, 2009. OCGA § 17-10-6.2 (2006), the version of the statute in effect on those dates, provided:

(b) Except as provided in subsection (c) of this Code section, and notwithstanding any other provisions of law to the contrary, any person convicted of a sexual offense shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to the offense. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and such sentence shall include, in addition to the mandatory imprisonment, an additional probated sentence of at least one year.

         The split sentence requirement applies to each sexual offense for which a defendant is being sentenced, rather than to the aggregate sentence. State v. ...


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