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Nordahl v. State

Supreme Court of Georgia

June 3, 2019

NORDAHL
v.
THE STATE.

          ELLINGTON, JUSTICE.

         We granted certiorari in this case to consider whether the Court of Appeals erred in applying a "conduct" approach when analyzing whether a prior out-of-state or federal conviction is for a crime that would be a felony if committed in Georgia and would, therefore, support enhanced punishment under OCGA § 17-10-7 (a) and (c), Georgia's general recidivist sentencing statute. As explained below, the Court of Appeals' "conduct" approach violates the Sixth Amendment to the Constitution of the United States and must, therefore, be disapproved. Nevertheless, after applying the "elements-only" or "modified categorical" approach to analyzing the prior federal conviction used to support the recidivist sentence at issue in this appeal, we affirm the Court of Appeals' judgment under the right-for-any-reason doctrine. See Bunn v. State, 291 Ga. 183, 193 (728 S.E.2d 569) (2012) (affirming the judgment of the Court of Appeals on certiorari under the right-for-any-reason doctrine).

         The record in this case shows that, in 2013, the State indicted Blane Nordahl on three counts of burglary, four counts of first-degree burglary, and a single count of criminal attempt to commit burglary. The State notified Nordahl that it intended to seek recidivist punishment pursuant to OCGA § 17-10-7 (a) and (c), based on his prior out-of-state and federal felony convictions. Nordahl entered a non-negotiated guilty plea to the Georgia charges on February 10, 2017, but he challenged the State's request for recidivist punishment, arguing, inter alia, that his federal conviction for conspiracy to transport stolen goods in interstate commerce was not a crime that would be a felony if committed in Georgia. The trial court rejected Nordahl's argument and sentenced him as a recidivist.[1]

         In affirming the trial court's recidivist sentence, the Court of Appeals analyzed whether the conduct underlying Nordahl's prior federal conviction (as opposed to the elements of the offense as charged) would constitute a felony if committed in Georgia. The Court of Appeals rejected Nordahl's argument that this approach violates the Sixth Amendment as construed by the Supreme Court of the United States in Almendarez-Torres v. United States, 523 U.S. 224 (118 S.Ct. 1219, 140 L.Ed.2d 350) (1998), Apprendi v. New Jersey, 530 U.S. 466 (120 S.Ct. 2348, 147 L.Ed.2d 435) (2000), and subsequent decisions holding that any fact that increases the penalty for a crime beyond the prescribed statutory maximum - other than the fact of the prior conviction itself - must be submitted to a jury and proved beyond a reasonable doubt. Specifically, the Court of Appeals held that nothing in the federal precedent relied upon by Nordahl - cases construing the Armed Career Criminal Act of 1984[2] ("ACCA"), a federal recidivist statute - could be construed as mandating "that state courts similarly employ an 'elements only' test when interpreting and applying state-specific sentence-enhancing statutes." Nordahl v. State, 344 Ga.App. 686, 692 (2) (811 S.E.2d 465) (2018). Citing its own case law as precedent, the Court of Appeals held that, in construing OCGA § 17-10-7 (a) and (c), "the State bears the burden of showing that the foreign convictions were for conduct which would be considered felonious under the laws of this state." (Citations and punctuation omitted.) Id.[3] The court concluded that the State met its burden of showing that the conduct described in Nordahl's federal conviction, if committed in Georgia, is "most closely related to . . . [felony] theft by receiving" under Georgia law, "which is committed when a person 'receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner.'" Id. at 694 (2).[4] "[A]ccordingly," the Court of Appeals concluded, "the trial court did not err in sentencing Nordahl as a recidivist under OCGA § 17-10-7 (a) and (c)." Id. at 694-695 (2).[5]

         1. Construing OCGA § 17-10-7 (a) and (c). Under subsections (a) and (c) of Georgia's general recidivist statute, a trial court is required to impose an enhanced sentence if the State satisfies certain prerequisites, [6] including proof of one or more qualifying prior convictions, which we refer to in this opinion as "predicate convictions." OCGA § 17-10-7 (a) provides:

Except as otherwise provided in subsection (b) or (b.1) of this Code section, any person who, after having been convicted of a felony offense in this state or having been convicted under the laws of any other state or of the United States of a crime which if committed within this state would be a felony and sentenced to confinement in a penal institution, 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 trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.

OCGA § 17-10-7 (c) provides:

Except as otherwise provided in subsection (b) or (b.1) of this Code section and subsection (b) of Code Section 42-9-45, any person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

         In determining how a trial court should analyze whether a prior federal or out-of-state conviction qualifies as a predicate conviction under these subsections, we first look to the language of the statute itself. Our analysis of the proper construction to give these provisions is guided by the following principles:

A statute draws its meaning from its text. When we read the statutory text, we must presume that the General Assembly meant what it said and said what it meant, and so, we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would. The common and customary usages of the words are important, but so is their context. For context, we may look to other provisions of the same statute, the structure and history of the whole statute, and the other law - constitutional, statutory, and common law alike - that forms the legal background of the statutory provision in question.

(Citations and punctuation omitted.) City of Marietta v. Summerour, 302 Ga. 645, 649 (2) (807 S.E.2d 324) (2017). "As in all appeals involving the construction of statutes, our review is conducted under a de novo standard." (Citations omitted.) Williams v. State, 299 Ga. 632, 633 (791 S.E.2d 55) (2016).

         Georgia's general recidivist statute does not expressly specify the analysis a sentencing court should employ when determining whether an out-of-state or federal criminal conviction constitutes a qualifying predicate conviction for enhanced punishment. See OCGA § 17-10-7. It does, however, use words that indicate an elements-only approach. Predicate convictions are described in terms of "felonies" and prior "conviction[s]" for "crimes." "Conduct," or any word of similar import, is not used to describe predicate convictions. See id. Because the elements of a crime are those parts of a crime that the prosecution must prove to sustain a conviction, an "elements-only" approach to evaluating predicate convictions is required by the general recidivist statute.[7]

         In construing OCGA § 17-10-7 (a) and (c) to allow a sentencing court to consider whether a defendant's federal or out-of-state conviction involves conduct that qualifies as a predicate conviction for enhanced punishment, the Court of Appeals relied on a line of its own cases that used the word "conduct" loosely and applied the word to both the elements of the prior crime and to the non-elemental facts or circumstances associated with the prior crime. See Nordahl, 344 Ga.App. at 694 n.40. Though cited as precedent, these cases provide no analytical support for the adoption of a "conduct" approach.[8] Although this Court has not previously addressed whether such a "conduct" approach violates the Sixth Amendment, we have articulated in other contexts the fundamental principle that guides us in this case: Under the Sixth Amendment, as applied to the states through the Due Process Clause of the Fourteenth Amendment, any fact - other than the fact of a prior conviction - that serves to enhance a sentence is considered an element of the crime that must be found beyond a reasonable doubt by the jury or admitted by the defendant when pleading guilty.[9] We note that, even assuming that the Court of Appeals' construction of the statute was plausible (and it is not, given the statutory text's requisite "elements-only" approach), the canon of constitutional avoidance would weigh against our adopting that interpretation because, as we explain in Division 2 below, it runs afoul of the Sixth Amendment. See Clark v. Martinez, 543 U.S. 371, 381 (125 S.Ct. 716, 160 L.Ed.2d 734) (2005) (explaining that the canon of constitutional avoidance "is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that [the legislature] did not intend the alternative which raises serious constitutional doubts"). See also Haley v. State, 289 Ga. 515, 521-522 (2) (b) (712 S.E.2d 838) (2011) ("[A] statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction," as "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." (citations and punctuation omitted)).

         Further, the Court of Appeals held (and the State also argues) that the states are free to employ the "conduct" approach because the United States Supreme Court's analysis in the case law relied upon by Nordahl is limited to construing the ACCA, a federal statute not at issue here. Therefore, Georgia courts are not compelled to apply that analysis to Georgia's recidivist statutes. This distinction, however, is not relevant here. The Supreme Court's analysis in those ACCA cases was fundamentally informed by Sixth Amendment principles, the very same principles at issue in this case.[10] We must follow the precedents of the United States Supreme Court in analyzing whether the general recidivist statute violates a defendant's Sixth Amendment rights "as it is a fundamental principle that this Court is bound by the Constitution of the United States as its provisions are construed and applied by the Supreme Court of the United States." (Citation omitted.) Ringold v. State, 304 Ga. 875, 878 (823 S.E.2d 342) (2019). For these reasons and the reasons that follow, we disapprove of the Court of Appeals' use of the "conduct" approach in evaluating out-of-state and federal convictions for use as predicate convictions under OCGA § 17-10-7 (a) and (c).

         2. Sixth Amendment limitations on recidivist sentencing schemes. The Sixth Amendment, which applies to the states through the Due Process Clause of the Fourteenth Amendment, "entitle[s] a criminal defendant to 'a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.'" Apprendi, 530 U.S. at 477 (III). In Apprendi, the Supreme Court held that the Sixth Amendment right to a jury trial extends to those disputed facts that may not be formally designated as "elements" of the offense, but nevertheless expose the defendant to additional punishment. Id. at 476-490 (III-V). See also Alleyne v. United States, 570 U.S. 99, 115-116 (III) (B) (133 S.Ct. 2151, 186 L.Ed.2d 314) (2013) (any fact that increases the mandatory minimum sentence for a crime must be admitted by a defendant by pleading guilty or be submitted to a jury and found beyond a reasonable doubt). The Court, however, recognized a "limited exception" for the "'fact' of prior conviction." Apprendi, 530 U.S. at 488 (IV) n.14 (citing Almendarez-Torres, 523 U.S. at 230 (A)). The Court explained that "there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof." (Emphasis supplied.) Apprendi, 530 U.S. at 496 (V). In the years following Apprendi, the Supreme Court issued several decisions applying these constitutional principles to an analytical framework for evaluating whether a prior criminal conviction may be used to enhance sentencing under a recidivist statute. That analytical framework can be summarized as follows.

         When a sentencing court finds that a predicate conviction satisfies the requirements of a recidivist sentencing scheme, such as that of OCGA § 17-7-10 (a) and (c), that finding indisputably authorizes (and often requires) the court to impose a sentence enhancement above the maximum penalty for the crime of conviction. "Accordingly, that finding would (at the least) raise serious Sixth Amendment concerns if it went beyond merely identifying a prior conviction." Descamps v. United States, 570 U.S. 254, 269 (III) (A) (133 S.Ct. 2276, 186 L.Ed.2d 438) (2013). Given those Sixth Amendment concerns, in determining whether a prior conviction qualifies as a predicate conviction under a recidivist sentencing scheme, the sentencing court is authorized to identify only those facts it is "sure the jury so found" in rendering its guilty verdict, or those facts as to which the defendant waived the right of jury trial in entering a guilty plea. Id. The sentencing court may not "rely on its own finding about a non-elemental fact to increase a defendant's maximum sentence." Id. at 269-270 (III) (A). Or, stated differently, a sentencing court's role is limited to identifying those elements that were established by virtue of the prior conviction itself, that is, those facts the jury was necessarily required to find to render a guilty verdict or those facts the court was necessarily required to find to satisfy the factual basis for a guilty plea. See id.[11]

Elements are the constituent parts of a crime's legal definition - the things the prosecution must prove to sustain a conviction. At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant; and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty. Facts, by contrast, are mere real-world things - extraneous to the crime's legal requirements. We have sometimes called them "brute facts" when distinguishing them from elements. They are circumstances or events having no legal effect or consequence: In particular, they need neither be found by a jury nor admitted by a defendant.

(Citations and punctuation omitted.) Mathis v. United States, 579 U.S.___ (136 S.Ct. 2243, 2248 (I) (A), 195 L.Ed.2d 604) (2016).[12]

         3. The "formal categorical" and "modified categorical"approaches. The application of the constitutional principles discussed above to a recidivist sentencing scheme should be, in most cases, fairly straightforward. For example, when applying them to OCGA § 17-10-7 (a) and (c), a Georgia sentencing court parses the elements of the prior out-of-state or federal crime and determines whether those elements satisfy the statutory definition of a felony under Georgia law. When the out-of-state or federal offense "sets out a single (or 'indivisible') set of elements to define a single crime[, ]" the sentencing court "lines up that crime's elements alongside those of the [state] offense and sees if they match." Mathis, 136 S.Ct. at 2248 (I) (A). This comparison of statutory elements is what ...


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