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Steven
Lee Sparger, Savannah, for Appellant.
Margaret Heap, Scott Christopher Robichaux, for Appellee.
OPINION
Coomer,
Judge.
After
a jury trial, Ruben Gonzalez was convicted of criminal
attempt to commit a felony (murder), two counts of aggravated
assault (family violence), possession of a firearm during the
commission of a felony, cruelty to children in the first
degree, and cruelty to children in the third degree. Gonzalez
appeals from his convictions and the denial of his motion for
new trial, contending that (1) the trial court erred by
failing to apply the rule of lenity in sentencing him on
Count 1, criminal attempt to commit a felony (murder), rather
than on Count 2, aggravated assault; (2) the trial court
erred by failing to apply the rule of lenity in sentencing
him on Count 5, cruelty to children in the first degree,
rather than on Count 6, cruelty to children in the third
degree; (3) the trial court erred by failing to merge
sentencing for Count 3, aggravated assault, into Count 1,
criminal attempt to commit a felony (murder), or Count 2,
aggravated assault; and (4) he was denied effective
assistance of counsel. For the reasons that follow, we
affirm.
On
appeal from a criminal conviction, we construe the evidence
in the light most favorable to the verdict, and the defendant
no longer enjoys a presumption of innocence. See Williams
v. State, 298 Ga. 208, 213 (2) (a), 779 S.E.2d 304
(2015). Viewed in this light, the evidence shows that on the
morning of April 24, 2014, the victim was preparing for work
in the master bathroom of the home she shared with Gonzalez,
who was her estranged husband. The victim had served Gonzalez
with divorce papers earlier that month, but they both still
resided in the
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marital home, although they slept in separate bedrooms.
Gonzalez
entered the bathroom, and he and the victim exchanged notes
regarding the terms of the pending divorce. The victim
refused to discuss the issue at that time, and Gonzalez left
the bathroom. Shortly thereafter, Gonzalez returned, pushed
the victim, and then put a gun to her head and pulled the
trigger. When the gun did not fire,[1] Gonzalez threw the victim
to the floor and began slamming her head against the tile
floor.
The
victims screams woke their two sons, who were then 15 and 18
years old. The 15-year-old entered the bathroom first, and
upon seeing Gonzalez on top of the victim, intervened by
pulling Gonzalez off of the victim. The 18-year-old picked up
the gun, and the victim left the room to call 911. The victim
saw a knife on the floor of the bedroom near the bathroom and
instructed her sons to remove it from the room. The police
arrived within a few minutes and secured the scene.
Gonzalez was indicted on one count of criminal attempt to
commit a felony (murder) (Count 1); two counts of aggravated
assault (family violence) (Counts 2 and 3); one count of
possession of a firearm during the commission of a felony
(Count 4); one count of cruelty to children in the first
degree (Count 5); and one count of cruelty to children in the
second degree (Count 6). After a jury trial, Gonzalez was
convicted of all counts. The trial court sentenced Gonzalez
to 30 years with 20 to serve and the balance probated on
Count 1; 20 years to serve on Count 3, to run concurrent to
Count 1; 5 years to serve on Count 4, to run consecutive to
Count 1; and 20 years to serve on Count 5, to run concurrent
to Count 1. Count 2 merged into Count 1, and Count 6 merged
into Count 5.
Gonzalez filed a motion for new trial, which the trial court
denied after a hearing. This appeal followed.
1.
Gonzalez contends that the trial court erred by failing to
apply the rule of lenity in sentencing him on Count 1,
criminal attempt to commit a felony, rather than on Count 2,
aggravated assault, denying his rights to due process and not
to be subjected to cruel and unusual punishment as guaranteed
by the Eighth and Fourteenth Amendments to the United States
Constitution and Article I, Section I, Paragraphs I and XVII
of the 1983 Georgia Constitution. We disagree.
"As in all appeals involving the construction of
statutes, our review is conducted under a de novo
standard." Mitchell v. State, 343 Ga.App. 116,
117, 806 S.E.2d 226 (2017) (citation and punctuation
omitted).
The rule of lenity ... ensures that if and when an ambiguity
exists in one or more statutes, such that the law exacts
varying degrees of punishment for the same offense, the
ambiguity will be resolved in favor of a defendant, who will
then receive the lesser punishment. But if after applying the
traditional canons of statutory construction the relevant
text remains unambiguous, the rule of lenity will not apply.
The fundamental inquiry when making this assessment, then, is
whether the identical conduct would support a conviction
under either of two crimes with differing penalties, i.e.,
whether the statutes define the same offense such that an
ambiguity is created by different punishments being set forth
for the same crime.
Gordon v. State,
334 Ga.App. 633, 634-645, 780
S.E.2d 376 (2015) (footnotes and punctuation omitted).
"Therefore, to decide whether the rule of lenity
applies, we look to whether there is any ambiguity in the two
statutes such that both crimes could be proved with the same
evidence." Gordon v. State,337 Ga.App. 64, 66
...