2006, Terrence Johnson was tried by a Floyd County jury and
convicted of armed robbery, aggravated assault with intent to
rob, and unlawful possession of a firearm during the
commission of a crime. Johnson appealed, and the Court of
Appeals affirmed his convictions, but it found that the trial
judge failed to exercise his sentencing discretion and
remanded the case for resentencing. See Johnson v.
State, 285 Ga.App. 590, 591 (3) (646 S.E.2d 760) (2007).
Johnson was sentenced to concurrent terms of 20 years (13
years of imprisonment, followed by seven years on probation)
for armed robbery and aggravated assault with intent to rob,
and a consecutive term of five years on probation for
unlawful possession of a firearm during the commission of a
crime. In 2011, Johnson filed a petition for a writ of habeas
corpus in the Superior Court of Tattnall County, alleging
that the aggravated assault with intent to rob merged with
the armed robbery of which he was convicted, and he should
not have been separately convicted of the aggravated assault.
The habeas court denied his petition, and Johnson
appeals. The State concedes that the aggravated
assault and armed robbery merged, and we agree. Accordingly,
we reverse the denial of the writ of habeas corpus and remand
for the habeas court to issue a writ setting aside the
separate conviction and sentence for aggravated assault.
afternoon of October 11, 2005, Johnson entered a clothing
store in Rome owned by Debbie Graham. Johnson pulled a gun
from under his shirt and put the gun to Graham's right
temple. Johnson moved Graham around the counter and forced
her to open the cash register, continuing to hold the gun to
her temple. Graham gave Johnson $150 from the cash register.
Johnson asked Graham why there was so little money, and
Graham responded that she had not done much business that
day. At this point, Johnson removed the gun from Graham's
temple and briefly swept it under the counter in search of
more valuables. Johnson then pressed the gun against
Graham's neck and argued with Graham about the location
of a safe and more money. When Graham responded that she did
not have a safe or any more money, Johnson fled the premises.
Court applies the required evidence test adopted in
Drinkard v. Walker, 281 Ga. 211, 217 (636 S.E.2d
530) (2006) to determine if crimes arising from the same
conduct merge. In Drinkard we explained that
"where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to
be applied to determine whether there are two offenses or
only one, is whether each provision requires proof of a fact
which the other does not." Id. at 215. See also
OCGA § 16-1-6 (a crime is included in another when
"[i]t is established by proof of the same or less than
all the facts or a less culpable mental state than is
required to establish the commission of the crime
charged"). This Court has held that an aggravated
assault with intent to rob conviction ordinarily merges with
an armed robbery conviction when the convictions are based on
the same conduct. "[T]here is no element of aggravated
assault with the intent to rob that is not contained in armed
robbery." Lucky v. State, 286 Ga. 478, 482 (689
S.E.2d 825) (2010). Both crimes require proof of the same
elements. Both require proof of intent to rob, and the
"assault requirement" of aggravated assault is the
same as the taking "by use of an offensive weapon"
requirement of armed robbery. Id. See also
Curtis v. State, 275 Ga. 576, 579 (571 S.E.2d 376)
(2002), rev'd on other grounds, Williams v.
State, 287 Ga. 192 (695 S.E.2d 244) (2010).
record of Johnson's trial shows that the aggravated assault
and armed robbery occurred at the same time and resulted from
the same conduct. Johnson held Graham at gunpoint, took money
from the cash register, and fled from the store. Thus, the
facts establishing the elements of armed robbery also
established the elements of aggravated assault with intent to
rob, and the two offenses merged. Further, the brief interval
when Johnson pulled the gun away from Graham, swept the gun
under the counter, and then pointed the gun back at Graham is
not sufficient to establish two distinct acts and authorize
two separate convictions. Cf. Hightower v. State,
Ga. (3) (2018) (Case No. S18A1238, decided December 10, 2018)
(evidence showed "two separate rounds of gunshots - the
first when the car was in the driveway and rolling toward the
ditch, and the second after the car had crashed into the
ditch"); Oliphant v. State, ___ 295 Ga ___.
597, 602 (759 S.E.2d 821) (2014) (evidence showed two
separate acts when "after the armed robbery and initial
shooting, the assailants ran away, but one then returned
briefly and shot [the victim] in the leg").
the aggravated assault with intent to rob merged with the
armed robbery, Johnson should not have been convicted and
sentenced for both offenses. His conviction for aggravated
assault with intent to rob is void, and it must be set aside.
Merger claims like this one are cognizable in habeas
proceedings, see Nazario v. State, 293 Ga. 480, 488
(3) (d) (746 S.E.2d 109) (2013), and the habeas court should
have granted the writ as to the conviction for aggravated
assault. The judgment of the habeas court is reversed, and we
remand for the habeas court to issue a writ consistent with
reversed and case remanded with direction.
 Johnson filed an application for
certificate of probable cause to appeal from the decision of
the habeas court, see OCGA § 9-14-52, and we granted
 The record of his trial was made a
part of the habeas record. Compare Martin v.
McLaughlin, 298 Ga. 44, 46-47 (779 ...