BARNES, P. J., MCMILLIAN and REESE, JJ.
BARNES, PRESIDING JUDGE.
Clifton Patterson pled guilty to voluntary manslaughter and
other offenses, and the trial court sentenced him to a total
of 30 years to serve. Proceeding pro se, Patterson
subsequently filed "Defendant's Motion to Modify
Sentence under Provisions of OCGA 17-10-1 (f)"
("Motion to Modify Sentence") and "Motion to
Correct Illegally Imposed Sentence by a Person in State
Custody" ("Motion to Correct Sentence"). The
trial court denied both motions, leading to this appeal.
Patterson contends on appeal that the trial court erred in
denying his motions because all of his convictions should
have merged for sentencing. For the reasons discussed below,
record reflects that on December 5, 2014, Patterson was
indicted on one count of malice murder, two counts of felony
murder, one count of aggravated assault, one count of
possession of a firearm during the commission of a felony,
and one count of interstate interference with custody.
Patterson thereafter entered a negotiated guilty plea under
North Carolina v. Alford, 400 U.S. 25 (91 S.Ct. 160,
27 L.Ed.2d 162) (1970) to voluntary manslaughter as a
lesser-included offense of malice murder, possession of a
firearm by a convicted felon as a lesser-included offense of
felony murder, possession of a firearm during the commission
of a felony, and interstate interference with custody. The
State requested and obtained entry of a nolle prosequi order
on the remaining felony murder count and the aggravated
assault count. The trial court entered a judgment of
conviction and sentence on Patterson's guilty plea on
February 13, 2017. The trial court sentenced Patterson to 15
years to serve for voluntary manslaughter and consecutive
sentences of 5 years to serve on each of the remaining counts
to which Patterson pled guilty, resulting in a total sentence
of 30 years to serve.
August 18, 2017, Patterson filed his pro se Motion to Modify
Sentence and his pro se Motion to Correct Sentence. Although
Patterson filed two separate motions, he contended in both
motions that his sentence was illegal and void because the
trial court should have merged all of his convictions under
OCGA § 16-1-7 (a) (1) and sentenced him only to 15 years to
serve for voluntary manslaughter. The trial court entered
orders denying both motions on September 1, 2017. This appeal
Patterson contends that the trial court erred in denying his
Motion to Modify Sentence. We disagree.
The General Assembly has established a specific time frame
during which a trial court has jurisdiction to freely modify
a criminal sentence. Pursuant to OCGA § 17-10-1 (f), a
court may correct or reduce a sentence during the year after
its imposition, or within 120 days after remittitur following
a direct appeal, whichever is later. Once this statutory
period expires, a trial court may only modify a void
(Citations and punctuation omitted.) Richardson v.
State, 334 Ga.App. 344, 346 (779 S.E.2d 406) (2015). See
OCGA § 17-10-1 (f).
Patterson filed his Motion to Modify Sentence within one year
of when the trial court imposed his sentence, his motion was
timely under OCGA § 17-10-1 (f). "Whether to grant a
motion to correct a sentence under OCGA § 17-10-1 (f)
lies within the discretion of the trial court. So long as the
sentence imposed by the court falls within the parameters
prescribed by law, we will not disturb it." (Citation
omitted.) Richardson, 334 Ga.App. at 346.
sentence fell within the statutory ranges prescribed for each
of the crimes to which he pled guilty. On appeal,
however, Patterson contends that his sentence was illegal and
void, and thus should have been corrected by the trial court,
because all of his convictions merged under OCGA §
16-1-7 (a) (1) for purposes of sentencing. "But the
authority granted to a trial court to correct a sentence
pursuant to OCGA § 17-10-1 (f) 'does not, on its
face, include the power to vacate the conviction on which the
sentence is based.'" Richardson, 334
Ga.App. at 348 (3), quoting Ellison v. State, 283
Ga. 461, 461 (660 S.E.2d 373) (2008). Hence, a motion to
correct or modify a defendant's sentence under OCGA
§ 17-10-1 (f) is not the "proper procedural
vehicle" for "a challenge to the defendant's
underlying conviction rather than to the defendant's
sentence." Richardson, 334 Ga.App. at 348-349
(3). See Ellison, 283 Ga. at 461; Grady v.
State, 311 Ga.App. 620, 621 (716 S.E.2d 747) (2011).
our Supreme Court has held that a claim that a
defendant's convictions should have merged under OCGA
§ 16-1-7 (a) (1) is a challenge to a defendant's
underlying conviction rather than to the defendant's
sentence. See Williams v. State, 287 Ga. 192, 194
(695 S.E.2d 244) (2010). See also Hood v. State, 343
Ga.App. 230, 234 (2) (807 S.E.2d 10) (2017); Rogers v.
State, 314 Ga.App. 398, 399 (724 S.E.2d 417) (2012). As
our Supreme Court has explained,
a merger claim must come before the court in a type of
proceeding in which criminal convictions may be challenged.
Thus, a merger claim cannot be considered in a free-standing
motion to vacate a sentence and/or vacate a conviction as
void or pleadings of a similar nature[.] . . . OCGA §
16-1-7 (a) renders illegal a conviction for a crime that
should have merged, and a claim that a charge should have
merged under OCGA § 16-1-7 is a specific attack on the
conviction, as opposed to simply an attack on an allegedly
illegal sentence. We have held that a motion to vacate a
conviction is not an appropriate remedy in a criminal case.
Instead, such a challenge - including a merger claim - may be
considered only in a traditionally recognized proceeding to
challenge a criminal conviction[.]
(Citations and punctuation omitted.) Nazario v.
State, 293 Ga. 480, 488 (2) (d) (746 S.E.2d 109) (2013).
See Von Thomas v. State, 293 Ga. 569, 572 (2) (748
S.E.2d 446) (2013); Williams, 287 Ga. at 194;
Harper v. State, 286 Ga. 216, 217-218 (686 S.E.2d
786) (2009). Hence, where the time for filing a direct appeal
from the criminal conviction or a motion for new trial has
expired, a defendant attacking his underlying conviction is
limited to the traditionally recognized proceedings of an
extraordinary motion for new trial, a motion to withdraw his
guilty plea, a motion in arrest of judgment, or a petition
for habeas corpus. See Nazario, 293 Ga. at 488 (2)
(d); Munye v. State, 342 Ga.App. 680, 683 (1) (a)
(803 S.E.2d 775) (2017).
on this precedent, Patterson's contention that his
convictions should have merged for sentencing constituted a
challenge to his underlying conviction rather than simply to
his sentence, and his Motion to Modify Sentence pursuant to
OCGA § 17-10-1 (f) was not a proper procedural mechanism
for asserting such a claim. See Ellison, 283 Ga. at
461; Richardson, 334 Ga.App. at 348-349 (3);
Grady, 311 Ga.App. at 621. Instead, Patterson had to
pursue his merger claim "in a type of proceeding in
which criminal convictions may be challenged."
Nazario, 293 Ga. at 488 (2) (d). And,
Patterson's Motion to Modify Sentence cannot be
alternatively construed as one of those traditionally
recognized proceedings for challenging a conviction. See
generally Bihlear v. State, 341 Ga.App. 364, 365 (1)
(a) (801 S.E.2d 68) (2017) (noting ...