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State v. Hanna

Supreme Court of Georgia

February 4, 2019

THE STATE
v.
HANNA.

          BOGGS, JUSTICE.

         The State appeals from the trial court's judgment of conviction and sentence imposed on Tina Marie Hanna after her plea of guilty to felony murder and related crimes, contending that the sentence is illegal and void because the trial court improperly sentenced Hanna on the basis of the "rule of lenity." The rule of lenity, however, is not implicated in this case, because the trial court erred in sentencing Hanna for an offense which was not charged and to which she did not plead guilty. We therefore vacate the trial court's judgment and remand the case to the trial court for further proceedings consistent with this opinion.

         At the plea hearing on April 24, 2018, the prosecutor stated the factual basis for the plea, and defense counsel made a statement on the record in response.[1] The trial court also briefly questioned Hanna, who has a composite I.Q. of 58. She was the mother of Mombera Hanna, the victim in this case, and had two older children, who were one and four years old at the time of Mombera's death. All three children had the same father, who was married to someone else. Mombera was born prematurely on March 12, 2011, and released from Grady Hospital in May, after approximately two months in the premature baby unit. At the time of his release, he weighed 7.2 pounds. On September 3, 2011, emergency medical technicians answered a 911 call and found Mombera unresponsive; he was taken to the hospital, but doctors were unable to resuscitate him. At the time of the autopsy, Mombera weighed 6.3 pounds. The opinion of the medical examiner was that Mombera died of starvation. As part of the plea, defense counsel admitted that Hanna failed to provide necessary sustenance and failed to seek medical attention for Mombera, but stated in mitigation that Hanna was intellectually disabled, that the medical examiner did find food in Mombera's system, and that the hospital had failed to send feeding instructions home with Hanna when Mombera was released.

         Hanna was charged with two counts of felony murder, OCGA § 16-5-1, and two counts of cruelty to children in the first degree, OCGA § 16-5-70. The felony-murder counts were predicated on first-degree cruelty to children by depriving the child of necessary sustenance to the extent that his health and well-being were jeopardized and by failing to seek necessary and adequate medical attention for the child. Hanna entered a non-negotiated plea of guilty to all four counts, but at the pretrial motions hearing and the plea hearing, defense counsel argued that the rule of lenity required that Hanna be sentenced as for contributing to the deprivation of a minor leading to death, pursuant to former OCGA § 16-12-1 (b) (3) and (d.1) (1) (2011), instead of for felony murder.

         The trial court chose to sentence Hanna on the first count of felony murder, based upon her causing the child's death by depriving him of necessary sustenance to the extent that his health and well-being were jeopardized. The court further stated that it would apply the rule of lenity to that conviction and sentence Hanna as for contributing to the deprivation of a minor leading to death. The court sentenced Hanna to ten years in prison for felony murder, with the first four years to be served in confinement and the balance on probation.[2] The State strenuously objected:

Your Honor, I think I need to put on the record that the State has not [a]greed to any reduction from felony murder. The State does not agree to 16-12-1, that is not on the indictment, and sentencing someone without the approval of the district attorney or the district attorney's office, the state disagrees that the court is able to do that, to sentence on a count that is not even in the indictment, to a sentence not authorized under the law.

         The trial court also entered an "Order to Be Attached to Sentence" that stated in part:

FURTHERMORE, it is the standard practice in this Court that all Defendants are allowed, for any reason, to withdraw their plea after sentence is handed down by the Court. If this Court's sentence . . . is not upheld by any higher court, this Court authorizes the Defendant to withdraw her plea and proceed to trial.

         1. As a preliminary matter, we address the question of our jurisdiction. Under OCGA § 5-7-1 (a) (6), the State may appeal in a criminal case "[f]rom an order, decision, or judgment of a court where the court does not have jurisdiction or the order is otherwise void under the Constitution or laws of this state." As discussed below, the sentence imposed here was void, and "[a]s such, the State's appeal is authorized by OCGA § 5-7-1 (a) (6) and this Court has jurisdiction to review the case on the merits." (Footnote omitted.) State v. Owens, 296 Ga. 205, 208 (2) (766 S.E.2d 66) (2014); see also Blackwell v. State, 302 Ga. 820, 827-828 (4) (809 S.E.2d 727) (2018).

         2. In its first enumeration of error, the State contends that the trial court erred in applying the rule of lenity in sentencing Hanna as for deprivation of a minor child leading to death, instead of an appropriate sentence for felony murder.

The Supreme Court of the United States has referred to the rule of lenity as a sort of junior version of the vagueness doctrine, which requires fair warning as to what conduct is proscribed. The rule of lenity applies when a statute, or statutes, establishes, or establish, different punishments for the same offense, and provides that the ambiguity is resolved in favor of the defendant, who will then receive the lesser punishment. However, the rule does not apply when the statutory provisions are unambiguous. The rule of lenity is a rule of construction that is applied only when an ambiguity still exists after having applied the traditional canons of statutory construction.

(Citations and punctuation omitted.) Banta v. State, 281 Ga. 614, 617 (2) (642 S.E.2d 51) (2007).

         But we need not apply the rule of lenity because the sentence imposed here was erroneous for a more fundamental reason. Hanna pled guilty to and was convicted of felony murder, but she was sentenced as for a crime of which she was not convicted. The judgment therefore imposes an illegal and void sentence, and it must be vacated and the case returned to the trial court.

[A] sentence is void if the court imposes punishment that the law does not allow. Whether a sentence amounts to "punishment that the law does not allow" depends not upon the existence or validity of the factual or adjudicative predicates for the sentence, but whether the sentence imposed is one that legally ...

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