Atkins v. Hopper

• Decision Date: 06 May 1975
• Docket Number: No. 29499,29499
• Parties: James K. ATKINS v. Joe S. HOPPER, Warden.
• Court: Georgia Supreme Court

Page 89

216 S.E.2d 89

234 Ga. 330

James K. ATKINS v. Joe S. HOPPER, Warden.

No. 29499.

Supreme Court of Georgia.

May 6, 1975.

James K. Atkins, pro se.

Arthur K. Bolton, Atty. Gen., B. Dean Grindle, Jr., Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

JORDAN, Justice.

James Atkins appeals to this court from a judgment of the Tattnall County Superior Court denying his petition for habeas corpus relief and remanding him to the custody of the respondent warden.

Appellant was tried before a jury in November of 1970 and convicted for the crime of murder committed during the course of an armed robbery. Appellant was sentenced to life imprisonment, and this court affirmed the conviction and sentence in Atkins v. State, 228 Ga. 578, 187 S.E.2d 132.

Subsequent to appellant's murder conviction, he was indicted, tried, and found guilty of the armed robbery which served as the basis for his felony murder conviction in that the armed robbery of both men who were robbed was included in the indictment for felony murder. Appellant was sentenced to ten years imprisonment for the armed robbery with said sentence to run concurrently with his life sentence for murder.

Appellant attacked both sentences in the habeas court alleging, inter alia, that he was denied effective assistance of counsel, that evidence was introduced that resulted from an illegal search and seizure, that the evidence did not support the verdict; misjoinder of offenses; and that the armed robbery conviction was the result of an illegal multiple prosecution.

1. We have carefully studied appellant's contentions concerning the validity of his murder conviction and find that those not disposed of on direct appeal are without merit.

2. The main question before us now concerns the validity of appellant's lesser concurrent sentence for armed robbery, and our treatment of this issue in light of our holding that he is presently serving a valid life sentence. In the past appellant's contentions as to the invalidity of his sentence for armed robbery would have been disposed of in the following manner: 'A writ of habeas corpus looks only to the lawfulness of the present confinement.' Bridges v. Ault, 229 Ga. 108, 189 S.E.2d 391.

This sort of disposition is no longer valid after our opinions in Parris v. State, 232 Ga. 687, 208 S.E.2d 493; Jones v. Hopper, 233 Ga. 531, 212 S.E.2d 367; and Carter v. Hopper, 233 Ga. 879, 213 S.E.2d 623. In these opinions we restructured our definitions of 'custody' and 'restraint' as they relate to the ripeness of attacks on sentences in habeas corpus petitions for both trial and appellate review.

In Parris v. State, supra, we allowed an attack on a sentence that had been completely served because it was serving as a restraint on petitioner's liberty due to a federal recidivist statute. In Jones v. Hopper, supra, we allowed an attack on two life sentences for rape while other lesser concurrent sentences went unattacked. In Jones, however, we required the petitioner to show some adverse collateral consequences flowing from the two sentences, such as a detrimental effect on petitioner's eligibility for parole (Nelson v. George, 399 U.S. 224), or some other restraining effect. Carter v. Hopper, supra, left the situation in about the same state as it was after Jones.

Today we meet a new situation. After holding the life sentence valid, will we entertain appellant's attack on the lesser concurrent sentence or utilize what has been called the 'concurrent sentence doctrine' and not treat his contentions due to the existence of a longer valid sentence? The restraint flowing from a sentence that is shorter than an unattacked or valid sentence is more subtle and harder to define than that faced in the prior cases. However, after careful consideration we have come to the conclusion that a felony conviction and its subsequent sentence serves as a restraint in many ways and if such conviction is void it should be treated at the initial habeas hearing and at the appellate level if incorrectly decided.

Adverse collateral consequences can be found through recidivist statutes, parole consequences, and difficulties in reassociation with a free society after release from prison. As stated by the U.S. Supreme Court in Benton v. Maryland, 395 U.S. 784, 789, 89 S.Ct. 2056, 23 L.Ed.2d 707 the 'concurrent sentence doctrine' is merely one of 'judicial convenience.' Therefore, to assess the degree of judicial convenience actually served by the doctrine, we asked the Attorney General to address himself in a supplemental brief to certain questions of statistics. He has responded that approximately 25% of habeas corpus petitions filed by Georgia prison inmates attack sentences with one or more concurrent sentences present, but that in most cases the testimony and evidence pertaining to one conviction will also pertain to the other. Only in approximately 10% of the 'concurrent' petitions would the Attorney General expect different and additional sources of testimony and evidence to be required to afford a full evidentiary presentation before the habeas court. Thus, the judicial convenience actually to be served by the doctrine is comparatively slight, when weighed against the significant interests of justice. Today we hold that the burden of this inconvenience should rest on the shoulders of the judiciary rather than on those of an imprisoned petitioner. We believe that this is a logical extension of the holding in Parris, supra, and the cases following it, and that the interests of justice can best be served by treating all proper complaints for habeas corpus relief from void felony convictions at the first opportunity. To require a petitioner to allege adverse collateral consequences of a felony conviction is in effect requiring him to do a useless act. Release from confinement is no longer the sole function of the Great Writ. Carafas v. Lavallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554; Parris v. State, supra. Habeas corpus relief can now serve to relieve the stigma and burden of an invalid sentence regardless of its position in relation to other sentences. For other courts reaching in effect the same result, see Frizzell v. State, 238 So.2d 67 (Fla.1970); and Jackson v. Henderson, 255 So.2d 85 (La.1970).

3. After making the above determination we now look to the appellant's contentions concerning the validity of the armed robbery conviction. In Woods v. State, 233 Ga. 495, 501 (212 S.E.2d 322, 326), we held that 'proof of the elements of the offense of felony murder necessarily requires proof of the elements of the felony. See Code Ann. § 26-1101(b). Thus, the felony is a lesser included offense of felony murder under Code Ann. § 26-505 and conviction of both offenses is proscribed under the provisions of Code Ann. § 26-506.' It is obvious under Woods, supra, and the cited Code sections that appellant's armed robbery sentence under the facts of this case is void.

We remand the case to the trial court for action not inconsistent with this opinion, and the cases cited herein.

Judgment affirmed in part and reversed and remanded in part.

All the Justices concur, except NICHOLS, C.J., and HILL, J., who concur specially.

HILL, Justice (concurring specially).

I concur in divisions 1 and 2 of the opinion of the court. I am unable to concur in division 3, which holds that where a person commits murder in the commission of a felony (Code Ann. § 26-1101(b)), the felony (armed robbery in this case) is a lesser included offense of felony murder under Code Ann. § 26-505 and conviction of both offenses is proscribed under the provisions of Code Ann. § 26-506.

However, I agree that under the facts of this case the armed robbery conviction should be set aside, and I therefore concur in the judgment. My reasons for concurring in the judgment setting aside the armed robbery conviction are as follows:

The record shows...