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State v. Yohman

Court of Appeals of Georgia, Second Division

January 11, 2019

THE STATE
v.
YOHMAN.

          MILLER, P. J., BROWN and GOSS, JJ.

          MILLER, PRESIDING JUDGE

         Rebekah Jean Yohman pleaded guilty to numerous offenses stemming from a police chase, including felony fleeing and attempting to elude (OCGA § 40-6-395 (b) (5) (A)). The State appeals from Yohman's judgment of conviction, arguing that because Yohman has a prior felony conviction, she must be sentenced to the maximum term of imprisonment for the felony fleeing and attempting to elude charge pursuant to Georgia's recidivist punishment statute, OCGA § 17-10-7 (a). The Superior Court of Coweta County determined that, despite evidence that Yohman served a portion of her prior sentence in a county jail, the recidivist punishment statute did not apply because she had not "been confined in the prior case to a penal institution." We vacate Yohman's sentence for felony fleeing and attempting to elude and remand for resentencing because we conclude that the trial court incorrectly determined that the recidivist punishment statute did not apply.

         A Coweta County grand jury indicted Yohman for one count each of felony fleeing or attempting to elude a police officer (OCGA § 40-6-395 (b) (5) (A)) ("Count 1"), possession of a controlled substance (OCGA § 16-13-30 (a)), driving under the influence (less safe) (drugs) (OCGA § 40-6-391 (a) (2)), driving while license suspended (OCGA § 40-5-121 (a)), and possession of drug related objects (OCGA § 16-13-32.2). Thereafter, the State filed notice of its intent to seek recidivist punishment based upon Yohman's prior felony convictions for possession of methamphetamine and possession of Aprazolam. See OCGA § 17-16-4 (a) (5). The State argued that pursuant to the recidivist punishment statute, OCGA § 17-10-7(a), Yohman "must be sentenced to the maximum of the range of punishment for felony fleeing" and that "no portion may be suspended, probated, deferred, or withheld, and the charge shall not be served concurrently with any other offense." As a result, the State contended that Yohman "face[d] a minimum sentence . . . of 6 years to serve the first 5 years in incarceration."

         Yohman ultimately elected to enter a non-negotiated guilty plea. During Yohman's guilty plea hearing, the State, Yohman's counsel, and the trial court engaged in a lengthy discussion concerning whether OCGA § 17-10-7 (a) applied to Yohman's conviction for Count 1 (felony fleeing and attempting to elude).[1] Citing OCGA § 17-10-7 (a), OCGA § 40-6-395 (b) (5) (A), and OCGA § 40-6-395 (b) (5) (B), the State asked the trial court to sentence Yohman to a minimum term of imprisonment of five years. The State also admitted evidence of Yohman's prior felony convictions for which she received a sentence of "7 [years] with fifteen weekends to be served in confinement and the remainder to be served on probation. . . ." Yohman countered that the recidivist statute did not apply because Yohman "did not serve any time in custody - in confinement in a penal institution" for her prior conviction. The State responded that, even if Yohman's prior sentence "was straight probation, . . . it's still a felony [that] should be considered by the Court under [OCGA §] 17-10-7 (a)."[2] The trial court determined that there must have been "some confinement" on the prior felony in order for the recidivist punishment statute to apply, and concluded that "the recidivist statute is not applicable here[.]"[3] The trial court sentenced Yohman to "3 years to serve in the state correctional system[, ]" and this appeal followed.

         1. As a threshold matter, we are obligated to question our jurisdiction "in any case in which there may be a doubt about the existence of such jurisdiction." (Citation omitted.) Sanders v. State, 280 Ga. 780, 782 (1) (631 S.E.2d 344) (2006). Here, the State appealed directly from Yohman's judgment of conviction, arguing that the trial court imposed a sentence not allowed under Georgia law. OCGA § 5-7-1 (a) (6) authorizes the State to appeal from an order that "is . . . void under the Constitution or laws of this state." See also State v. Jones, 265 Ga.App. 493 (1) (594 S.E.2d 706) (2004). "A sentence is void if the court imposes punishment that the law does not allow." (Citation omitted.) Spargo v. State, 332 Ga.App. 410, 411 (773 S.E.2d 35) (2015). "When the sentence imposed falls within the statutory range of punishment, however, the sentence is not void." (Citation and punctuation omitted.) Id. See also Crumbley v. State, 261 Ga. 610, 611 (1) (409 S.E.2d 517) (1991). Accordingly, we must first determine whether Yohman's sentence constitutes a "void" judgment.

         To that end, "[w]here the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly." (Footnote omitted.) Chase v. State, 285 Ga. 693, 695 (2) (681 S.E.2d 116) (2009). "In fact, where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden." (Footnote and punctuation omitted.) Id. Relevant to this case, OCGA § 40-6-395 (a) states that "[i]t shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop." OCGA § 40-6-395 (b) further provides

(5) (A) Any person violating the provisions of subsection (a) of this Code section who, while fleeing or attempting to elude a pursuing police vehicle or police officer:
[...]
(iii) Flees in traffic conditions which place the general public at risk of receiving serious injuries;
[...] shall be guilty of a felony punishable by a fine of $5, 000.00 or imprisonment for not less than one year nor more than five years or both.
(B) Following adjudication of guilt or imposition of sentence for a violation of subparagraph (A) of this paragraph, the sentence shall not be suspended, probated, deferred, or withheld, and the charge shall not be reduced to a lesser offense, merged with any other offense, or served concurrently with any other offense. (Emphasis supplied.)
Georgia's recidivist punishment statute, OCGA § 17-10-7, states
Except as otherwise provided in subsection (b) or (b.1) of this Code section, [4] any person who, after having been convicted of a felony offense in this state . . . and sentenced to confinement in a penal institution, [5] commits a felony punishable by confinement in a penal institution shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the ...

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