Gonzalez v. Hart

Decision Date14 September 2015
Docket NumberNo. S15A0884.,S15A0884.
Citation297 Ga. 670,777 S.E.2d 456
PartiesGONZALEZ v. HART.
CourtGeorgia Supreme Court

Sarah L. Gerwig–Moore, William H. Noland, Childs & Noland, Dianna Lee, James Bates Brannon Grover, LLP, Macon, Sarah Bernice Flack, Law Office Of Tanya Miller, Atlanta, for appellant.

Samuel S. Olens, Atty. Gen., Paula Khristian Smith, Deputy Atty. Gen., Patricia B. Attaway Burton, Sr. Asst. Atty. Gen., Elizabeth Michelle Haase, Asst. Atty. Gen., for appellee.

Opinion

HINES, Presiding Justice.

This Court granted prisoner Arquimides Gonzalez's application for a certificate of probable cause to appeal the denial of his petition for a writ of habeas corpus, posing the single question of whether the habeas court correctly applied this Court's decision in Garza v. State, 284 Ga. 696, 670 S.E.2d 73 (2008). For the reasons that follow, we reverse the judgment of the habeas court and remand.

In 2007, a jury found Gonzalez guilty of family violence battery,1 two counts of aggravated assault, kidnapping with bodily injury, and two counts of aggravated battery in connection with two incidents involving his ex-girlfriend. He was sentenced to life in prison for the kidnapping with bodily injury; 20 years in prison for each aggravated assault and each aggravated battery, to be served consecutively to each other and to the life sentence; and 12 months in prison for family violence battery, to be served consecutively to all other sentences, for an aggregate sentence of life plus 81 years in prison. On motion for new trial, Gonzalez successfully argued to the trial court that one of the counts of aggravated assault should have merged with a count of aggravated battery for the purpose of sentencing, so even though the motion for new trial was denied on other grounds, on July 2, 2008, these counts were merged and he was re-sentenced for an aggregate sentence of life plus 61 years in prison. On direct appeal to the Court of Appeals, Gonzalez contended that the trial court erred in refusing to merge the two aggravated battery counts for the purpose of sentencing and that trial counsel was ineffective for failing to request a jury charge on false imprisonment as a lesser included offense of the kidnapping with bodily injury charge. On July 9, 2009, the Court of Appeals decided the direct appeal, and determined that the two counts of aggravated battery merged, vacated the sentence on the second such count, and remanded the case for re-sentencing; it rejected the claim of ineffective assistance of trial counsel and affirmed Gonzalez's remaining convictions and sentences. Gonzales v. State, 298 Ga.App. 821, 681 S.E.2d 248 (2009). On remand, on October 1, 2009, Gonzalez was again re-sentenced for an aggregate sentence of life plus 41 years in prison.

On May 24, 2010, Gonzalez filed a pro se petition for a writ of habeas corpus raising three grounds: (1) ineffective assistance of trial counsel for failing to request a jury charge on false imprisonment as a lesser-included offense of kidnapping with bodily injury and for mentioning his immigration status to the jury; (2) ineffective assistance of appellate counsel for failing to raise insufficiency of the evidence regarding the kidnapping with bodily injury charge under Garza ; and (3) cruel and unusual punishment in the imposition of a life sentence for the kidnapping with bodily injury inasmuch as the evidence viewed in light of Garza would not support the conviction. Following an evidentiary hearing, at which Gonzalez's former appellate counsel testified, on August 7, 2014, the habeas court issued its order denying habeas relief. In so doing, it determined, inter alia,2 that under Garza there was sufficient evidence to establish that Gonzalez committed the charged offense of kidnapping with bodily injury beyond a reasonable doubt, including the element of asportation, and consequently, it rejected Gonzalez's claim that his appellate counsel was ineffective for failing to raise on appeal insufficiency of the evidence of kidnapping in light of Garza. However, the habeas court's determination in this regard was in error.

In Garza, this Court established new factors for assessing the asportation element of Georgia's pre–2009 kidnapping statute;3 the movement required to establish asportation had to be more than “merely incidental” to other criminal activity, and four judicially-created factors were to be considered before a court could reach the conclusion that more than “merely incidental” movement had occurred. Id. at 702(1), 670 S.E.2d 73. Sellars v. Evans, 293 Ga. 346, 347 n. 1, 745 S.E.2d 643 (2013). The four factors to be considered are: (1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense. Upton v. Hardeman, 291 Ga. 720, 721, 732 S.E.2d 425 (2012). However, in general it is not necessary that all four factors be met in order to establish asportation. Wilkerson v. Hart, 294 Ga. 605, 608(3), 755 S.E.2d 192 (2014). What must be kept in mind is the purpose of the Garza test, which is to determine whether the movement in question served to substantially isolate the victim from protection or rescue, the evil which the kidnapping statute was originally intended to address. Levin v. Morales, 295 Ga. 781, 782–783, 764 S.E.2d 145 (2014).

As noted, the charges against Gonzalez stemmed from two incidents of violent behavior involving his ex-girlfriend (“victim”). The first incident occurred in the victim's apartment on April 9, 2005, and resulted in Gonzalez's convictions and remaining sentences for family violence battery, aggravated assault, and kidnapping with bodily injury; the second incident was Gonzalez pushing the victim out of a moving car on June 4, 2005, resulting in his remaining conviction and sentence for aggravated battery.

The kidnapping with bodily injury charge in the indictment alleged that Gonzalez did “unlawfully abduct [the victim], a human being, without lawful authority and hold said person against her will, and said person did receive bodily injury, to wit: bruising.” The habeas court detailed the evidence with regard to the incident in the victim's apartment giving rise to the kidnapping charge: the victim had been in a relationship with Gonzalez, and the relationship changed when he became very jealous; after...

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14 cases
  • State v. Crawford
    • United States
    • Iowa Supreme Court
    • March 18, 2022
    ...(citation omitted)), superseded on other grounds by statute , Ga. Code § 16–5–40(b)(2) (2009), as recognized in Gonzalez v. Hart , 297 Ga. 670, 777 S.E.2d 456, 458 n.3 (2015) ; State v. Faught , 127 Idaho 873, 908 P.2d 566, 570–71 (1995) (holding sufficiency need not be objected to in the t......
  • State v. Crawford
    • United States
    • Iowa Supreme Court
    • March 18, 2022
    ... ... grounds by statute , Ga. Code § 16-5-40(b)(2) ... (2009), as recognized in Gonzalez v. Hart , 777 ... S.E.2d 456, 458 n.3 (Ga. 2015); State v. Faught , 908 ... P.2d 566, 570-71 (Idaho 1995) (holding sufficiency need not ... ...
  • Hyden v. State
    • United States
    • Georgia Supreme Court
    • February 28, 2020
    ...284 Ga. at 702 (1), 670 S.E.2d 73. Although the standard set forth in Garza has since been superseded by statute (see Gonzalez v. Hart , 297 Ga. 670, 777 S.E.2d 456 (2015) ), it was the standard applicable at the time of Hyden's 2004 conviction.With respect to the asportation element of kid......
  • Ray v. State, A16A1091
    • United States
    • Georgia Court of Appeals
    • October 11, 2016
    ...633, 634 (1), 507 S.E.2d 514 (1998).11 284 Ga. 696, 670 S.E.2d 73 (2008), superseded by statute as stated in Gonzalez v. Hart , 297 Ga. 670, 672, 777 S.E.2d 456 (2015). See also OCGA § 16–5–40 (b) (2) (2009).12 (Citation and punctuation omitted.) Garza, 284 Ga. at 697 (1), 670 S.E.2d 73, ci......
  • Request a trial to view additional results

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