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Gonzalez v. State

Court of Appeals of Georgia, Fourth Division

September 25, 2019

GONZALEZ
v.
THE STATE.

          DOYLE, P. J., COOMER and MARKLE, JJ.

          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 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 victim's 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 (1) (785 S.E.2d 900) (2016) (footnote and punctuation omitted).

         However,

that a single act may, as a factual matter, violate more than one penal statute does not implicate the rule of lenity. . . . In such a circumstance, a defendant may be prosecuted for more than one crime. However, the injustice that must be avoided is sentencing the defendant for more than one crime following his conviction of multiple crimes based upon the same act. When a defendant is so prosecuted, the principle of factual merger operates to avoid the injustice.

Banta v. State, 281 Ga. 615, 618 (2) (642 S.E.2d 51) (2007) (citations and punctuation omitted, emphasis in ...


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