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Patterson v. State

Court of Appeals of Georgia, First Division

July 19, 2018

PATTERSON
v.
THE STATE.

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

          BARNES, PRESIDING JUDGE.

         Orain 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, we affirm.

         The 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.

         On 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)[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 followed.

         1. 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 sentence.

(Citations and punctuation omitted.) Richardson v. State, 334 Ga.App. 344, 346 (779 S.E.2d 406) (2015). See OCGA § 17-10-1 (f).[2]

         Because 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).[3] "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.

         Patterson's sentence fell within the statutory ranges prescribed for each of the crimes to which he pled guilty.[4] 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.[5] "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).

         Notably, 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).

         Based 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.[6] 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 ...


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