Gray v. State

• Decision Date: 26 August 2019
• Docket Number: A19A1258
• Citation: 832 S.E.2d 857,351 Ga.App. 703
• Court: Georgia Court of Appeals
• Parties: GRAY v. The STATE.

351 Ga.App. 703

832 S.E.2d 857

GRAY

v.The STATE.

A19A1258

Court of Appeals of Georgia.

August 26, 2019

Certiorari Denied April 6, 2020

The Steel Law Firm, Brian Steel ; Petrey Law, John H. Petrey, for appellant.

Sherry Boston, District Attorney, Destiny H. Bryant, Otobong U. Ukpong, Assistant District Attorneys, for appellee.

Rickman, Judge.

Mark Gray appeals from the trial court's sua sponte order setting aside a modification of his sentence. For the reasons that follow, we affirm.

The record shows that Gray was indicted on five counts of sexual exploitation of children, and that in January 2017, he entered a non-negotiated plea of guilty and was sentenced to ten years to serve in prison followed by ten years on probation, with sexual offender requirements. Ten months later, Gray moved to modify his sentence. Eleven months after that, Gray and the State appeared before a different trial court judge, sitting by designation, who granted the motion. Thus, twenty-one months after the original sentencing, the substitute judge entered a consent order reducing Gray's sentence to a term of five years to serve in prison followed by fifteen years on probation, with sexual offender requirements (the "Modification Order").

Three weeks later, the originally assigned judge, acting sua sponte and without notice or a hearing, filed an order vacating the Modification Order and reinstating Gray's original sentence (the "Reinstatement Order"). The court found the Modification Order "to be inappropriate and not in the interests of justice," and the court cited as authority its "inherent power during the same term of court in which the judgment was rendered to revise, correct, revoke, modify or vacate the judgment, even upon his own motion."¹ Gray appeals.

On appeal, Gray argues that the Reinstatement Order is void because he had begun to serve the reduced sentence and the trial court lacked the authority to increase his sentence by reimposing the original sentence. The State also contends that the Reinstatement Order is void, but on the ground that "[a]ny order modifying a sentence which is entered without notice and an opportunity for a hearing as provided in this subsection shall be void." OCGA § 17-10-1 (f). We are constrained to disagree with both parties based on the plain language of OCGA § 17-10-1 (f). As shown below, under that statute the Modification Order itself was void because the trial court (here with a judge sitting by designation) lacked jurisdiction to enter that order more than one year after the original sentencing, and the original sentencing judge was authorized to correct the void sentence.

"Except as provided by statute, a sentencing court has no power to modify a valid sentence of imprisonment after the term of court in which it was imposed has expired." State v. Hart , 263 Ga. App. 8, 9, 587 S.E.2d 164 (2003). As provided by statute, sentencing courts have "jurisdiction" to correct or reduce a sentence for one year following the original sentence or within 120 days of receiving the remittitur following a direct appeal:

Within one year of the date upon which the sentence is imposed, or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later, the court imposing the sentence has the jurisdiction , power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed. ...

(Emphasis supplied.) OCGA § 17-10-1 (f) ;² see also von Thomas v. State , 293 Ga. 569, 571 (2), 748 S.E.2d 446 (2013) ("The sentencing court generally has jurisdiction to modify or vacate such a sentence only for one year following the imposition of the sentence."). After the time allowed by OCGA § 17-10-1 (f) expires, the sentencing court has jurisdiction to vacate a sentence only to the extent that the sentence is void. von Thomas , 293 Ga. at 571 (2), 748 S.E.2d 446.

Thus, here, where Gray did not argue that his sentence was void, the plain language of OCGA § 17-10-1 (f) dictates that the trial court lost jurisdiction to correct or reduce Gray's sentence months before it entered the Modification Order. Cf. Davis v. State , 291 Ga. App. 252, 253, 661 S.E.2d 872 (2008) ( OCGA § 17-10-1 (f) gives trial court 120 days following its receipt of the remittitur from the prior appeal "to consider and rule upon" a motion to modify sentence.); Esquivel v. State , 266 Ga. App. 715, 716, 598 S.E.2d 24 (2004) ("the latest date when the trial court could have changed Esquivel's sentence was 120 days after the trial court received the remittitur"). Compare Carr-MacArthur v. Carr , 296 Ga. 30, 33 (2), 764 S.E.2d 840 (2014) ("[N]othing in OCGA § 19-9-3 (a) (8) suggests that, after a delay of 30 days, the trial court loses jurisdiction or must grant a motion for reconsideration ..., and we will not engraft such a provision onto the statute."). That Gray filed a motion to modify his sentence within the one-year period provided in OCGA § 17-10-1 (f) does not alter the result under the plain meaning of that statute.

Our construction of the statute is supported by its context. See City of Guyton v. Barrow , 305 Ga. 799, 805 (3), 828 S.E.2d 366 (2019) (the words of a statute are not to be read in isolation but in context).

The primary determinant of a text's meaning is its context, which includes the structure and history of the text and the broader context in which that text was enacted, including statutory and decisional law that forms the legal background of the written text.

Id. Relatedly, "all statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. They are therefore to be construed in connection and in harmony with the existing law." (Citation and punctuation omitted.) Grange Mutual Casualty Co. v. Woodard , 300 Ga. 848, 852 (2) (a), 797 S.E.2d 814 (2017) ; see Williams v. State , 299 Ga. 632, 634, 791 S.E.2d 55 (2016) (same).

Prior to the enactment of OCGA § 17-10-1 (f), and as a matter of longstanding common law, the term-of-court rule provided as follows: "In the absence of a statute providing otherwise, ... a court cannot set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during that term." United States v. Mayer , 235 U. S. 55, 67 (1), 35 S.Ct. 16, 59 L.Ed 129 (1914) ; see Miraglia v. Bryson , 152 Ga. 828, 111 S.E. 655 (1922) (following Mayer ); see also Kaiser v. State , 285 Ga. App. 63, 65 (1), 646 S.E.2d 84 (2007) ("This is a judicially created rule" that evolved from common law.). Thus, under the term-of-court rule, a court's authority to modify its judgments extends after the term of court during which the judgment was entered if a motion to modify was filed during that term. See, e.g., State v. Fredericks , 256 Ga. App. 401, 402, 568 S.E.2d 489 (2002) (without considering OCGA § 17-10-1 (f) ).

But as stated in the common law term-of-court rule, a statute providing otherwise is controlling. See Mayer , 235 U. S. at 67 (1), 35 S.Ct. 16 ; see also Kaiser , 285 Ga. App. at 68 (1), 646 S.E.2d 84 (following Mayer ). Here, the legislature expressly limited the trial court's jurisdiction to modify sentences to a specific time when it enacted OCGA § 17-10-1 (f) in 2001. The legislature could have included the common law exception in the statute, thereby allowing a court to rule on any motion filed within one year of sentencing, but it chose not to. See, e.g., Gavin v. State , 292 Ga. App. 402, 405, 664 S.E.2d 797 (2008) ("Because the legislature could have expressly created the exception urged by [the appellant], we find it instructive that it did not."); Gillespie v. State , 280 Ga. App. 243, 246, 633 S.E.2d 632 (2006) ("[T]he legislature could have included sexual partners on its list of persons who constitute ‘family’ for purposes of family violence. It did not do so.").

The history of the text of OCGA § 17-10-1 (f) and its predecessors supports our interpretation. From 1950 to 1992, the Code provided that judges had "no authority" to modify sentences after the term of court in which the sentence was rendered.³ Meanwhile, our courts began to apply the common law exception found in the term-of-court rule to the statutory rule — thereby allowing an extension if a motion was filed within the same term of court as the sentencing.⁴ Beginning in 1992 and continuing through 2001, the legislature completely removed the statutory rule from the Code, meaning that only the common law rule applied during those years.⁵ Finally, in 2001, the legislature enacted OCGA § 17-10-1 (f), in its current form, thereby reintroducing a rule allowing modification of sentences after the term of court, but using the word "jurisdiction" for the first time in connection with the trial court's authority.⁶

This statutory and case law history shows that the legislature is aware of the difference between the common law term-of-court rule and the statutory rule; that the courts applied the common law exception of the rule to the predecessor statutes; and that the legislature later rewrote the statute to make the time constraints jurisdictional by adding language to provide that the sentencing court only "has the jurisdiction, power, and authority" to correct or reduce a sentence within the specified times. OCGA § 17-10-1 (f). This change, especially the use of the term "jurisdiction,"⁷ shows that the legislature quite plainly changed the statutory rule.

In summary, although Gray moved to modify his sentence within one year of his sentencing, the trial court had lost jurisdiction of the matter by the time it entered the Modification Order, and, therefore, the Modification Order was void. See OCGA § 17-9-4 ; Hall v. State , 291 Ga. App. 649, 650, 662 S.E.2d 753 (2008) ; see also Hulett v. State , 296 Ga. 49, 54 (2), 766 S.E.2d 1 (2014) ("an accused who has been convicted of a...