Clinton v. State

• Decision Date: 06 April 2021
• Docket Number: A21A0352
• Parties: CLINTON v. The STATE.
• Court: Georgia Court of Appeals

857 S.E.2d 283

CLINTON
v.
The STATE.

A21A0352

Court of Appeals of Georgia.

April 6, 2021

David Edward Clark, for Appellant.

Penny Alane Penn, Jennifer Lynn Scalia, for Appellee.

Colvin, Judge.

In December 2010, Rodney Daniel Clinton, Sr. entered an Alford plea¹ to two counts of incest and eight counts of child molestation. He was sentenced to a total of 40 years, with 15 to serve. Following the trial court's grant of his petition for an out-of-time appeal, Clinton challenges those convictions, arguing that they should be vacated because a manifest injustice occurred when he was allowed to plead guilty to a crime was not supported by a factual basis. For the following reasons, we reverse Clinton's conviction under Count One of the indictment alleging incest against his step-granddaughter and remand the case for re-sentencing. We affirm his remaining convictions.

The record reflects that in 2010, Clinton entered an Alford plea to two counts of incest and eight counts of child molestation. He was sentenced to a total of 40 years, with 15 to serve. Count One of the accusation charged Clinton with incest for "unlawfully engag[ing] in sexual intercourse with [K. C.], accused's grandchild, knowing [he] was related to said grandchild by marriage[.]"² At the plea hearing, the State proffered that Clinton was the step-grandfather of the minor victim. However, at that time, the incest statute did not apply to step-grandparents. See OCGA § 16-6-22 (a) ; Gordon v. State , 327 Ga. App. 774, 777 (1) (c), 761 S.E.2d 169 (2014) ("Because

857 S.E.2d 285

Georgia's incest statute specifically refers to a brother and sister of the half blood, it necessarily excludes other, unmentioned half-blood relationships"); Glisson v. State , 188 Ga. App. 152, 152-153 (1), 372 S.E.2d 462 (1988) (evidence insufficient to prove incest where allegation involved a step relationship not specifically mentioned in OCGA § 16-6-22 ).

In August 2017, Clinton filed a pro se "motion to vacate void and illegal sentence." This motion was not ruled upon. In January 2019, Clinton filed a pro se motion for leave to file an out-of-time appeal. After a hearing, the trial court issued a "consent order" on March 22, 2019, which vacated Count 1 of the accusation charging Clinton with incest.³ The order held that

the State conceded that the facts presented by the State at the plea hearing as to Count One in the accusation in which [Clinton] pled guilty did not legally establish the elements of the crime of incest.

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