Brinkley v. State

• Decision Date: 18 June 2012
• Docket Number: No. S12A0137.,S12A0137.
• Citation: 291 Ga. 195,12 FCDR 1894,728 S.E.2d 598
• Parties: BRINKLEY v. The STATE.
• Court: Georgia Supreme Court

291 Ga. 195

728 S.E.2d 598

12 FCDR 1894

BRINKLEY

v.The STATE.

No. S12A0137.

Supreme Court of Georgia.

June 18, 2012.

Stephen Michael Reba, Randee J. Waldman, The Barton Juvenile Defender Clinic, Atlanta, for appellant.

Sandra Louise Michaels, Martin Brothers, P.C., Atlanta, for amicus appellant.

Clifford Paul Bowden, Dist. Atty., District Attorney's Office, for appellee.

NAHMIAS, Justice.

On January 27, 2000, Appellant Jonas Brinkley was found guilty by a Tift County jury of kidnapping with bodily injury to a female victim, rape of the female victim, kidnapping a male victim, and armed robbery. Six days later, Appellant was sentenced to the mandatory minimum of life imprisonment (with the possibility of parole) on the kidnapping with bodily injury count. See OCGA § 16–5–40(d)(4) (“A person convicted of the offense of kidnapping shall be punished by ... [l]ife imprisonment or death if the person kidnapped received bodily injury.”). The trial court also sentenced Appellant to serve 20 consecutive years in prison on the kidnapping charge and 20 concurrent years for the armed robbery; the rape charge merged into the conviction for kidnapping with bodily injury. On February 8, 2000, Appellant filed, through his trial counsel, a motion for new trial on the general grounds. Regrettably, Appellant's case then was shuffled among several defense lawyers for almost a decade, with little progress made on the pending new trial motion. See Shank v. State, 290 Ga. 844, 849, 725 S.E.2d 246 (2012) (expressing this Court's concern about inordinate delay in post-trial proceedings and calling on “trial courts and prosecutors[,] as well as defense counsel and defendants, to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay”).

After Appellant's current counsel took over his representation, however, he filed an amended motion for new trial on April 29, 2010. Among other claims, the amended motion raised, for the first time, a claim that Appellant's life sentence for kidnapping with bodily injury violated the cruel and unusual punishments clause of the Georgia Constitution, see Ga. Const. of 1983, Art. I, Sec. I, Par. XVII, because he was a juvenile age 14 at the time of the crime. The trial court held a hearing on the amended motion on September 14, 2010, and denied the motion on the merits on February 25, 2011.

Appellant filed a timely notice of appeal in this Court, contending that we have jurisdiction because the case involves at least one novel constitutional question. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. II(1) (providing that the Supreme Court shall have “exclusive appellate jurisdiction” in “[a]ll cases involving the construction of ... the Constitution of the State of Georgia or of the United States and all cases in which the constitutionality of a law ... has been drawn in question”). See also City of Decatur v. DeKalb County, 284 Ga. 434, 436–437, 668 S.E.2d 247 (2008) (explaining that we have interpreted this jurisdictional provision to extend only to constitutional issues that were distinctly ruled on by the trial court and that do not involve the application of unquestioned and unambiguous constitutional provisions or challenges to laws previously held to be constitutional against the same attack). However, because Appellant's cruel and unusual punishment claim was not timely raised in the trial court, review of its merits has been waived on appeal, and so it does not invoke our constitutional question jurisdiction. His other constitutional claims are not novel, and because no other basis for this Court's jurisdiction appears to exist, we must transfer this case to the Court of Appeals.

1. The first opportunity a defendant has to bring a constitutional attack against a sentencing statute, as opposed to other types of statutes, may come only after the guilty verdict is returned and the sentencing issue becomes ripe. See Jones v. State, 290 Ga. 670, 674, 725 S.E.2d 236 (2012). Nevertheless, as this Court recently and unanimously reiterated, “our longstanding general rule [is] that even constitutional challenges to sentencing statutes, including those challenges based on the Eighth Amendment, are untimely if they are presented for the first time in a motion for new trial.” Id. (citing cases from this Court and cases showing that “[t]he Court of Appeals consistently adheres to the same rule”). As far back as 1926, this Court held squarely that “[a] complaint that a sentence imposes upon a defendant a cruel and inhuman punishment, in violation of the [state and federal] constitutional provision[s], cannot properly be made a ground for a motion for new trial. Such objection to the sentence can only be taken by a proper timely and direct exception to the sentence.” Gore v. State, 162 Ga. 267, 276, 134 S.E. 36 (1926) (citations omitted).

Appellant was 14 years old when he committed his crimes, and the statute under which he was sentenced imposes a mandatory minimum sentence of life imprisonment, see OCGA § 16–5–40(d)(4), so once he was found guilty of kidnapping with bodily injury, that was the sentence he would receive. Thus, if Appellant wanted to argue that OCGA § 16–5–40(d)(4) imposes cruel and unusual punishment, as applied to him or to all juveniles, he had the opportunity to raise that constitutional challenge to the statute at his sentencing hearing; he simply failed to do so. Consequently, the trial court should have ruled that Appellant's cruel and unusual punishment claim was untimely when first raised in his amended motion for new trial, and he has waived review of the merits of that constitutional issue on appeal.

The dissent acknowledges that this constitutional challenge was untimely but would overlook that procedural default on the ground that Appellant's argument has been strengthened, although not endorsed, by developments in Eighth Amendment case law related to juvenile sentencing during the years since his sentencing. However, like Appellant, the dissent cites no authority for our excusing a procedural default on a constitutional issue in order to consider making new law on that issue on direct appeal. Compare Humphrey v. Wilson, 282 Ga. 520, 524, 652 S.E.2d 501 (2007) (considering, on habeas corpus review, a new cruel and unusual punishment claim based on a statute enacted after Wilson's conviction, but only after holding that Wilson had “not fail[ed] to comply with any Georgia procedural rules on appeal”).¹

[291 Ga. 198]2. This Court has also repeatedly held that an improperly presented constitutional claim does not bring a case within our appellate jurisdiction and, where the case did not come within our jurisdiction for some other reason and where we actually addressed the jurisdictional issue, we have consistently transferred such cases to the Court of Appeals for decision on any remaining enumerations of error. See Perez–Castillo v. State, 275 Ga. 124, 124–125, 562 S.E.2d 184 (2002) (holding that, when constitutional issues were not timely raised, “those challenges must be deemed waived on appeal” and, absent some other basis for this Court's jurisdiction, the appeal must be transferred to the Court of Appeals); Hardeman v. State, 272 Ga. 361, 361–362, 529 S.E.2d 368 (2000) (same); Gainey v. State, 232 Ga. 334, 335, 206 S.E.2d 474 (1974) (“Under repeated rulings of the court the constitutional question [challenging a sentencing statute], presented for first time in the defendant's motion for new trial, was not timely raised so as to confer jurisdiction of the appeal upon the Supreme Court.”); Nelson v. State, 179 Ga. 743, 743, 177 S.E. 253 (1934) (holding that, where the defendant failed to preserve his constitutional claim for appeal under a then-prevailing rule that he had to except to the constitutional ruling in his motion for new trial, the case had to be transferred to the Court of Appeals). See also Nahid v. State, 276 Ga.App. 687, 687, 624 S.E.2d 264 (2005) (“The trial court rejected Nahid's [constitutional] challenge, and Nahid appealed to the Supreme Court of Georgia, citing that Court's authority to resolve constitutional questions. The Supreme Court, however, concluded that Nahid had waived his constitutional claim by failing to raise it until the motion for new trial. It then transferred Nahid's appeal to this Court.”); Hughes v. State, 266 Ga.App. 652, 654 n. 9, 598 S.E.2d 43 (2004) (explaining that, “although Hughes initially filed his appeal in the Supreme Court, that Court transferred the appeal to this Court on grounds that the constitutional issue was not timely raised and, therefore, not preserved for appellate review”).

Likewise, when a case involving an untimely constitutional challenge has been appealed to the Court of Appeals, that court has properly decided the case rather than transferring it to this Court. See, e.g., Harper v. State, 213 Ga.App. 611, 611, 445 S.E.2d 300 (1994) (explaining that, because the appellant's constitutional claim was untimely raised in his motion for new trial, “this constitutional challenge is not reviewable and its enumeration does not remove this case from [the Court of Appeals'] jurisdiction.”); Hilson v. State, 204 Ga.App. 200, 203, 418 S.E.2d 784 (1992) (same). ²

Where this Court has jurisdiction over an appeal on another ground, we have applied the waiver rule to resolve the untimely constitutional claim but proceeded correctly to decide the remainder of the case. See, e.g., Gore, 162 Ga. at 267, 134 S.E. 36 (decided under our jurisdiction over murder cases). In a few other cases, we have applied the waiver rule to the constitutional claim and proceeded to decide the rest of the appeal instead of transferring it, despite the absence of any other apparent basis for Supreme Court jurisdiction. See, e.g., Kolokouris v. State, 271 Ga. 597, 597–598, 523 S.E.2d 311 (1999); Gunn v. State, 244 Ga. 51, 52, 257 S.E.2d 538 (1979). However, in contradiction to the...