Loveless v. State

• Decision Date: 26 February 2018
• Docket Number: A17A1728
• Citation: 812 S.E.2d 42
• Parties: LOVELESS v. The STATE.
• Court: Georgia Court of Appeals

344 Ga.App. 716

812 S.E.2d 42

LOVELESS

v.The STATE.

A17A1728

Court of Appeals of Georgia.

February 26, 2018

Reid G. Kennedy, Marietta, for Appellant.

John Richard Edwards, Shepard Russell Orlow, D. Victor Reynolds, Marietta, for Appellee.

Dillard, Chief Judge.

This is the second appearance of this case before our Court. We previously affirmed Loveless's convictions for trafficking in methamphetamine, driving without a license, giving false information to law enforcement, and obstruction when he challenged them on direct appeal.¹ Upon remittitur, the trial judge concluded, sua sponte , that the sentence entered on Loveless's conviction for trafficking in methamphetamine was void, and thereafter conducted a second sentencing hearing, during which Loveless was resentenced. Loveless now appeals from the entry of his new sentence, arguing that the trial court erred by resentencing him as a recidivist under OCGA § 17-10-7 (c) when (1) he had started to serve his previously entered sentence and there was no additional or new evidence to permit such a sentence; (2) one of his three prior offenses was the crime of simple possession of a controlled substance under OCGA § 16-13-30 (a) ; and (3) one of his three prior offenses was a federal charge of counterfeiting. For the reasons set forth infra , we affirm.

The facts underlying Loveless's criminal conviction are set forth in our prior opinion.² Specifically, Loveless was found in possession of 220.11 grams of material that tested positive for methamphetamine, was convicted in a bench trial of trafficking in methamphetamine,³ and was originally sentenced "to a life term, to serve 25 years in confinement and the remainder on probation."⁴ We affirmed Loveless's convictions and issued a remittitur to the trial court on July 12, 2016. Thereafter, on August 12, 2016, the trial court held a resentencing hearing, announcing at the outset that, following the direct appeal, it had become "clear that the sentence on count one [was] void"⁵ because Loveless had been "sentenced under the wrong [C]ode section." The trial court explained that it had erroneously sentenced Loveless under OCGA § 16-13-30 when he should have been sentenced under OCGA § 16-13-31 (e) instead. Following a brief period of argument by the State and Loveless's counsel, the trial court entered a new recidivist sentence under OCGA § 16-13-31 (e), OCGA § 17-10-7 (a), and OCGA § 17-10-7 (c). And again, at the conclusion of the hearing, after entering a new sentence of 30 years, to serve 25 years, the trial court reiterated that it was doing so because "the original sentence on count one [was] void ab initio."

Loveless appeals from this new sentence, asserting the enumerations of error set forth supra . And because this appeal presents questions of law, we will review the trial court's decision de novo .⁶ But at the outset, before addressing his enumerations of error, we note again that Loveless previously filed an appeal with this Court, for which a paper transcript and record were transmitted for our review. In the present notice of appeal, Loveless indicates that the clerk should omit nothing from the appeal, and that a transcript of evidence and proceeding will be filed for inclusion in the record on appeal. The electronic record for the current appeal, however, is limited to filings relevant to the case after the remittitur from the prior appeal. Loveless nowhere indicated in his notice of appeal an intention to rely upon the paper record and transcript previously transmitted to this Court in his prior case, yet his appellate brief makes numerous references to comments and rulings made by the trial court that are contained within that record. Nevertheless, the previously filed paper record having not yet been recycled,⁷ this Court has reviewed it when necessary to address Loveless's enumerations of error. That said, we take this opportunity to remind appellants that the burden is upon them to ensure that a complete record is transmitted to this Court for review in every appeal and to notify this Court of any intent to rely upon a previously transmitted record and/or transcript.⁸ We turn now to Loveless's enumerations of error.

1. First, Loveless argues that the trial court erred in resentencing him as a recidivist under OCGA § 17-10-7 (c) when he had started to serve his previously entered sentence and there was no additional or new evidence to permit a new sentence as a recidivist. Loveless essentially makes two challenges: (1) to the trial court's jurisdiction to resentence him, and (2) to the sentence that was imposed upon resentencing. We disagree that the trial court erred in either respect.

(a) The trial court's jurisdiction to resentence Loveless . As the Supreme Court of Georgia has recognized, after a defendant begins serving his sentence, his sentence can only be increased through resentencing when "(a) such resentencing is allowed by law, and (b) the defendant has no reasonable expectation in the finality of the original sentence."⁹ Without these special circumstances, the resentencing "constitutes a double punishment that runs afoul of the Fifth Amendment prohibition against double jeopardy."¹⁰ But it is well established that a trial court has jurisdiction to "resentence defendants at any time when their sentences are void."¹¹

In this case, when the trial court originally sentenced Loveless, the State argued that the "trafficking statute^{[12 ]} says the [mandatory] max [imum] [sentence] is 30 [years]" but that the trial court could not "just look at the trafficking statute in a vacuum" and instead also had to consider OCGA § 16-13-30 (d), which focuses on possession with the intent to distribute. That statute, the State argued, set the maximum sentence at "40 or life," also giving the trial court some discretion. The State then argued that OCGA §§ 17-10-7 (a) and (c) were applicable for purposes of sentencing as a recidivist, given that Loveless had three prior convictions.

Following argument, the trial court applied the maximum sentence from OCGA § 16-13-30 (d) and sentenced Loveless as follows:

As I read the code sections, [ OCGA §] 17-10-7 (a) applies which means I have to sentence him to the longest period of that—the maximum. The maximum on this is life. The maximum on this says 40 or life. ... Life would be the maximum. I mean, nobody knows how long you're going to live and I respect that part[,] but it would be life. So I have to give him life. But I can probate it. I'm not going to sentence him under [ OCGA § 17-10-7 ] (c). I don't think [ OCGA § 17-10-7 ] (c) applies to this situation.

When the State asked the court to provide a specific reason as to why OCGA § 17-10-7 (c) did not apply, the trial court gave a terse response: "I don't have to [give a reason] and I'm not going to. I don't think it applies. Period." Thus, the trial court's original sentence as to trafficking in methamphetamine was "life, serve 25 years, $300,000 fine[,]" a 12-month concurrent sentence as to the remaining counts, with recidivist sentencing under OCGA § 17-10-7 (a) only.

As detailed supra , when the trial court sua sponte held a resentencing hearing, the trial judge explained that she had erroneously sentenced Loveless under OCGA § 16-13-30 (d) rather than OCGA § 16-13-31 (e) and declared that the original sentence was void. Additionally, the trial court's new sentence applied OCGA § 17-10-7 (a)and OCGA § 17-10-7 (c). As we will explain infra , because the trial court was correct that it had imposed a sentence not allowed by the plain text of the law, the sentence was void, and the trial court retained jurisdiction to resentence Loveless.¹³

Indeed, OCGA § 16-13-30 (d) provides as follows:

Except as otherwise provided, any person who violates subsection (b) of this Code section^{[14 ]} with respect to a controlled substance in Schedule I or Schedule II shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five years nor more than 30 years. Upon conviction of a second or subsequent offense, he or she shall be imprisoned for not less than ten years nor more than 40 years or life imprisonment. The provisions of subsection (a) of Code Section 17-10-7 shall not apply to a sentence imposed for a second such offense; provided, however, that the remaining provisions of Code Section 17-10-7 shall apply for any subsequent offense.

This is the provision under which the trial court initially sentenced Loveless to life, serve 25 years. But OCGA § 16-13-31 (e), under which Loveless was convicted of trafficking in methamphetamine, provides as follows:

Except as authorized by this article, any person who sells, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine, amphetamine, or any mixture containing either methamphetamine or amphetamine, as described in Schedule II, in violation of this article commits the felony offense of trafficking in methamphetamine or amphetamine and, upon conviction thereof, shall be punished as follows: ... If the quantity of methamphetamine,

amphetamine, or a mixture containing either substance involved is 200 grams or more, but less than 400 grams, the person shall be sentenced to a mandatory minimum term of imprisonment of 15 years and shall pay a fine of $300,000.00[.]¹⁵

Further, OCGA § 16-13-31 (h) specifies that "[a]ny person who violates any provision of this Code section shall be punished as provided for in the applicable mandatory minimum punishment and for not more than 30 years of imprisonment and by a fine not to exceed $1 million."

Thus, it is clear that the trial court initially erroneously sentenced Loveless under OCGA § 16-13-30 (d) and not OCGA § 16-13-31 (e). Accordingly, Loveless's initial sentence was void, and the trial court retained jurisdiction to resentence Loveless to a maximum of 30 years (as opposed to his prior sentence of life), to serve 25 years.

(b) The trial court's application of OCGA §...