Jackson v. the State

SECOND DIVISION

BARNES, P. J.,

BOGGS and RICKMAN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

August 10, 2016

In the Court of Appeals of Georgia

A16A1058. JACKSON v. THE STATE.

BOGGS, JUDGE.

William Jackson appeals the trial court’s denial of his motion to correct a void

sentence, contending that the trial court erred when it (1) failed to impose split

sentences on his convictions for child molestation, as required by OCGA § 17-10-6.2

(b), and (2) failed to consider and impose sentences below the statutory minimums,

as permitted by § 17-10-6.2 (c). Because Jackson’s sentences are void for failure to

comply with the § 17-10-6.2 split-sentence requirement, we are constrained to vacate

them and remand this case for resentencing.

In 2013, Jackson pled guilty to three counts of child molestation and ten counts

of sexual exploitation of a minor. The trial court imposed concurrent 20-year prison

sentences on each of the child molestation counts and concurrent sentences of 20

years’ probation on each of the sexual exploitation counts, to be served consecutively

to the prison terms. The record contains no indication that Jackson directly appealed

his judgment of conviction. In July 2015, Jackson filed a motion to correct a void

sentence, which the trial court denied. This appeal followed.

Jackson argues that his sentences are void because the trial court (1) failed to

impose split sentences on his child molestation convictions, as required by OCGA

§ 17-10-6.2 (b), and (2) failed to exercise and “cast upon the record” its discretion to

deviate below the statutory minimum sentences, under § 17-10-6.2 (c). We agree with

the first of these contentions and further conclude that Jackson’s sentences for sexual

exploitation of children also are void, for the reasons discussed below.

The interpretation of a statute is a question of law, which we review de novo

on appeal. State v. Hammonds, 325 Ga. App. 815, 815 (755 SE2d 214) (2014). A trial

court generally may modify a sentence only during the year after its imposition or

within 120 days after remittitur following a direct appeal, whichever is later. See

OCGA § 17-10-1 (f); Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010).

However, “a sentencing court retains jurisdiction to correct a void sentence at any

time.” (Punctuation omitted). McCranie v. State, 335 Ga. App. 548, 554 (4) (782

SE2d 453) (2016) “A sentence is void if the court imposes punishment that the law

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does not allow.” (Punctuation omitted). Jones v. State, 278 Ga. 669, 670 (604 SE2d

483) (2004) “When the sentence imposed falls within the statutory range of

punishment, the sentence is not void . . . .” Id.

A person over the age of eighteen who is convicted of a first offense of child

molestation is subject to a split sentence, which must include a mandatory-minimum

five-year prison term, to be followed by at least one year of probation.1 OCGA §§ 16-

6-4 (b); 17-10-6.2 (a) (5), (b). A person over the age of eighteen who is convicted of

sexual exploitation of children likewise is subject to a split sentence, which also must

include a mandatory-minimum five-year prison term, to be followed by at least one

year of probation.2 OCGA §§ 16-12-100 (f); 17-10-6.2 (a) (10), (b). A trial court may,

however, in its discretion, impose a sentence below the statutory minimum for either

offense if it finds the existence of six mitigating factors set forth in § 17-10-6.2 (c)

(1). See OCGA § 17-10-6.2 (a) (5), (10), (c). When a trial court deviates below the

mandatory-minimum sentence under § 17-10-6.2 (c) (1), it must issue a written order

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Jackson was 45 years old when the trial court sentenced him. The record

contains no indication that he previously had been convicted of child molestation.

2

A statutory exception for misdemeanor sexual exploitation of children is

inapplicable here. See OCGA § 16-12-100 (f) (2), cross-referencing OCGA § 16-12-

100 (c).

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setting forth the reasons therefor.3 OCGA § 17-10-6.2 (c) (2); McCranie, supra, 335

Ga. App. at 555 (4).

A sentence that does not comply with the § 17-10-6.2 split-sentence

requirement is void. See New v. State, 327 Ga. App. 87, 106-109 (5) (755 SE2d 568)

(2014). A sentence below the statutory minimum for an offense subject to the split-

sentence requirement likewise is void where the trial court fails to enter the required

written findings indicating that it was exercising its discretion to impose a downward

deviation. McCranie, supra, 335 Ga. App. at 556 (4).

We first note that Jackson’s challenge to the trial court’s failure to consider and

impose sentences below the mandatory minimums does not state a void-sentence

claim. The failure to deviate – or consider deviating – below a minimum sentence

does not render the sentence one “that the law does not allow,” so long as the

sentences imposed remain within the range of punishments permitted by law. See

Jones, supra, 278 Ga. at 670.

Nevertheless, the sentences imposed for Jackson’s child molestation

convictions are void because they do not comply with the § 17-10-6.2 split-sentence

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A trial court also may deviate below the mandatory minimum when the State

and the defendant have agreed upon such a sentence. See OCGA § 17-10-6.2 (c) (1).

The record contains no indication of any such agreement in this case.

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requirement. The court was required to impose a total sentence on each of these

counts that included at least one year of probation. See OCGA §§ 16-6-4 (b); 17-10-

6.2 (a) (5), (b). Consequently, Jackson’s 20-year prison sentences are void because

they include no probation. See New, 327 Ga. App. at 106-109 (5); see also Spargo v.

State, 332 Ga. App. 410, 411-412 (773 SE2d 35) (2015) (holding that 20-year prison

sentences for child molestation convictions were void); Clark v. State, 328 Ga. App.

268, 270 (1) (761 SE2d 826) (2014) (same).

Although not raised by either party, we conclude that Jackson’s probation-only

sentences for sexual exploitation of children also are void. See von Thomas v. State,

293 Ga. 569, 573 (2) (748 SE2d 446) (2013) (“[A] sentence which is not allowed by

law is void, and its illegality may not be waived.” (Punctuation and emphasis

omitted).) As was the case with Jackson’s child molestation convictions, the trial

court was required to impose sentences for his sexual exploitation convictions of at

least five years in prison, to be followed by at least one year of probation. See OCGA

§§ 16-12-100 (f); 17-10-6.2 (a) (10), (b). By imposing probation-only sentences for

these convictions, the trial court deviated below the mandatory-minimum five-year

prison sentence, but failed to enter the required written findings regarding each of the

§ 17-10-6.2 (c) (1) factors that must be considered when doing so. See OCGA § 17-

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10-6.2 (c) (2); McCranie, 335 Ga. App. at 555-556 (4). Accordingly, because each

of the sentences imposed in this case is void as a matter of law, we must vacate

Jackson’s sentences and remand this case for resentencing under § 17-10-6.2, in

accordance with this opinion.

In so holding, we recognize and approve the special concurrence of Judge Ray

in New, supra, 327 Ga. App. at 109-110, and vacate and remand this sentence which

did not comply with OCGA § 17-10-6.2.

Judgment vacated and case remanded for resentencing. Barnes, P. J., and

Rickman, J., concur.

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