Hailey v. State, S93A0186

• Decision Date: 07 June 1993
• Docket Number: No. S93A0186,S93A0186
• Citation: 429 S.E.2d 917,263 Ga. 210
• Parties: HAILEY v. The STATE.
• Court: Georgia Supreme Court

Page 917

429 S.E.2d 917

263 Ga. 210

HAILEY v. The STATE.

No. S93A0186.

Supreme Court of Georgia.

June 7, 1993.

Reconsideration Denied June 21, 1993.

Daniel A. Summer, Summer & Summer, Gainesville, for Hailey.

Michael J. Bowers, Atty. Gen., Atlanta, C. Andrew Fuller, Dist. Atty., William M. Brownell, Jr., Asst. Dist. Atty., Gainesville, Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, Atlanta, for the State.

Matthew P. Stone, Staff Atty., Dept. of Law, Atlanta.

Paula K. Smith, Asst. Atty. Gen., State Law Dept., Atlanta, for other appellee.

SEARS-COLLINS, Justice.

Hailey was convicted of selling cocaine in violation of OCGA § 16-13-30(b). ¹ As Hailey previously had pled guilty to possession of cocaine with intent to distribute, he was sentenced to life in prison under OCGA § 16-13-30(d). On appeal, Hailey contends that the mandatory life sentencing provision of § 16-13-30(d) is unconstitutional for numerous reasons. We affirm.

1. Hailey first contends that § 16-13-30(d) is being discriminatorily enforced against African-Americans. However, as we did in Hall v. State, 262 Ga. 596, 597(1)(b), 422 S.E.2d 533 (1992), we find that Hailey's evidence "fails to meet the standard of intentional discrimination." Id.

2. Hailey also contends that § 16-13-30(d) creates an unconstitutional and irrational sentencing scheme by mandating a life sentence for a Schedule II narcotic drug such as cocaine, OCGA § 16-13-26(1)(D); OCGA § 16-13-21(17)(D), but not for a Schedule II non-narcotic drug such as methamphetamine. Although we understand Hailey's concern with § 16-13-30(d), for the following reasons, we are constrained to find no merit to his contention.

The legislature has wide discretion in setting penalties, Hargrove v. State, 253 Ga. 450, 453(3), 321 S.E.2d 104 (1984), and courts may not "substitute their judgments as to the appropriateness of criminal penalties for those lawfully expressed by the General Assembly," Tillman v. State, 260 Ga. 801, 400 S.E.2d 632 (1991). However, if the penalty set is irrational, courts may invalidate the law as unconstitutional. Hargrove, supra, 253 Ga. at 453, 321 S.E.2d 104; Tillman, supra, 260 Ga. at 801, 400 S.E.2d 632. In this regard, a law setting a penalty will not be declared irrational "if there is any basis upon which the law is aimed at a legitimate state interest." Hargrove, supra, 253 Ga. at 453, 321 S.E.2d 104.

In Tillman, supra, 260 Ga. at 801-802, 400 S.E.2d 632, we addressed an attack on the rationality of § 16-13-30(d). Tillman contended that the sentencing scheme of § 16-13-30(d) is irrational because the mandatory life sentence for the second conviction of possession of a small amount of cocaine is greater than the 30-year maximum sentence for trafficking in greater amounts of cocaine under OCGA § 16-13-31. We held there was a rational basis for the sentencing scheme because "[t]he General Assembly may have perceived behavior such as appellant's, repeatedly possessing cocaine with the intent to place it in the stream of commerce, as a greater threat to the public health, safety and welfare than the mere possession of cocaine, albeit in a greater amount." Similarly, in this case, we hold that the sentencing scheme can not be disturbed because the legislature may have perceived repeated violations of § 16-13-30(b) with narcotic drugs as a greater threat to the public health, safety, and welfare than repeated violations with non-narcotic drugs. See Tillman, supra, 260 Ga. at 802, 400 S.E.2d 632.

3. Hailey's final contention is that, properly interpreted, § 16-13- 30(d) permits a life sentence for conviction of a second offense only if the defendant has been convicted of the first offense before he commits the second offense. Here, Hailey had not been convicted of the first offense at the time he committed his second offense. He thus contends that the trial court erred in sentencing him to life in prison under § 16-13-30(d). We disagree.

Both State v. Hendrixson, 251 Ga. 853, 854-855, 310 S.E.2d 526 (1984), and State v. Sears, 202 Ga.App. 352, 354-55, 414 S.E.2d 494 (1991), interpreted § 16-13-30(d) to mean that the conviction of a defendant for a first offense does not have to precede the commission of the "second or subsequent offense," § 16-13-30(d). ²

Hailey acknowledges the holdings of Hendrixson and Sears, but contends that our recent case of Mays v. State, 262 Ga. 90, 91(1)(a), 414 S.E.2d 481 (1992), supports his position. Hailey relies on the following language from Mays: "[I]t is not the date of the conviction which determines the applicability of enhanced punishment but the date of the commission of the offense." Id. at 91. Based on this language, Hailey contends that the date of the commission of his second offense determines whether he could receive enhanced punishment, and that, as he had not been convicted of the first offense at that time, he could not receive a life sentence under § 16-13-30(d). Hailey misreads Mays. In Mays the trial court actually sentenced Mays to life imprisonment under § 16-13-30(d) on the offense that occurred first in time, based on his previous conviction of the offense that occurred second in time. The issue in Mays was whether a life sentence had to be predicated upon the sequence of convictions or the sequence of offenses. We held that the sequence of offenses controls and vacated Mays' life sentence for "the first offense in time," id. at 92, 414 S.E.2d 481. Thus, under Mays, a life sentence can only be imposed upon conviction of an offense that is committed after the offense on which the first conviction is based. Contrary to Hailey's assertion, however, in Mays we did not hold that the first conviction had to precede the commission of the second offense. That issue was not presented in Mays.

For these reasons, we decline to adopt Hailey's interpretation of Mays, and continue to follow the holdings of Hendrixson and Sears. ³

Judgment affirmed.

All the Justices concur.

HUNT, Presiding Justice, concurring.

I agree with the majority's holding in Division 3 that the life sentence recidivist provision of OCGA § 16-13-30(d) does not require that a defendant be convicted of a first offense prior to the commission of the "second or subsequent offense." This is in accordance with our decision in State v. Hendrixson, 251 Ga. 853, 854-855, 310 S.E.2d 526 (1984) and with the more recent decision of the Court of Appeals in State v. Sears, 202 Ga.App. 352, 354-355(8), 414 S.E.2d 494 (1991).

Nevertheless, the purpose of the recidivist statute is not served without requiring a prior conviction, based on a prior offense, before mandating a life sentence under OCGA § 16-13-30(d) for a second offense. As we pointed out in Grant v. State, 258 Ga. 299, 300, 368 S.E.2d 737 (1988), citing Rummel v. Estelle, 445 U.S. 263, 284-285, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), the purpose of a recidivist statute is to deter repeat offenders, and, at some point, to segregate those offenders from the rest of society for an extended period of time. The deterrent aspect occurs primarily with judicial intervention; that is, when the defendant has been convicted and sentenced, and informed that he will face a life sentence if he commits another, similar felony. Without this judicial intervention, a defendant is not normally put on notice of the very severe punishment facing him under the recidivist statute if he violates the law again. Indeed, in Rummel, in upholding the Texas recidivist statute against a constitutional challenge under the Eighth Amendment, the majority of the U.S. Supreme Court noted the deterrent nature of the Texas statute:

[U]nder [the Texas statute] a three-time felon receives a mandatory life sentence, with possibility of parole, only if commission and conviction of each succeeding felony followed conviction for the preceding, and only if each prior conviction was followed by actual imprisonment. Given this necessary sequence, a recidivist must twice demonstrate that conviction and actual imprisonment do not deter him from returning to crime once he is released. One in Rummel's position has been both graphically informed of the...