Henderson v. State

• Decision Date: 16 September 2021
• Docket Number: A21A0916
• Citation: Henderson v. State, 361 Ga.App. 159, 863 S.E.2d 532 (Ga. App. 2021)
• Parties: HENDERSON v. The STATE.
• Court: Georgia Court of Appeals

361 Ga.App. 159

863 S.E.2d 532

HENDERSON

v.The STATE.

A21A0916

Court of Appeals of Georgia.

September 16, 2021

Eric C. Crawford, Monroe, for Appellant.

Joshua Bradley Smith, Jared Tolton Williams, Augusta, for Appellee

Per Curiam.

Following a jury trial, Tavarres Henderson was convicted in Richmond County Superior Court of robbery by intimidation. Henderson now appeals from the denial of his motion for a new trial, arguing that the trial court erred in considering his criminal history during sentencing. He further contends that the trial court erred in awarding restitution without affording him a hearing and without having evidence on which to base such an award. For the reasons explained more fully below, we find no reversible error by the trial court in considering Henderson's criminal history during sentencing, and we therefore affirm the conviction and sentencing order. We further find, however, that the trial court erred in entering a restitution order before holding a hearing and receiving evidence on that issue. Accordingly, we vacate the trial court's restitution order and remand the case for further proceedings consistent with this opinion.

Viewed in the light most favorable to the verdict,¹ the record shows that the victim was driving home one evening in a pickup truck that he used for work. Henderson and an accomplice forced the victim to stop by pulling their car in front of the truck, causing a minor collision. Henderson exited the car holding a gun and took $60 from the victim's front pocket. After taking the victim's cash, Henderson drove away with the victim's truck, hitting the car driven by his accomplice.

The victim provided police with a description of the car used by the robbers, including the damage the car sustained when hit by the victim's truck. Approximately two hours after the incident, police made a traffic stop of a car matching that description. A man later identified as Henderson got out of the car and fled the scene before he could be questioned by police. During a search of the vehicle, which was owned by Henderson, officers located several items taken from the victim's truck.

Police subsequently located and arrested Henderson, and he and his accomplice were indicted together for armed robbery, hijacking a motor vehicle, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon.² The jury found Henderson guilty of the lesser included offense of robbery by intimidation and acquitted him of hijacking a motor vehicle and possession of a firearm during the commission of a crime. The State thereafter nolle prossed the charge of possession of a firearm by a convicted felon.

Immediately after dismissing the jury, the trial court proceeded with the sentencing hearing. When the court asked the prosecutor for Henderson's criminal history, the prosecutor stated that Henderson had a 2002 conviction in South Carolina for impersonating a law enforcement officer and a 2004 conviction in Florida for grand theft of a motor vehicle, giving a false name to an officer, and possession of a sealed handcuff key. Although the State did not offer the court copies of the convictions, Henderson did not object to the prosecutor's statements or dispute his prior convictions.

The trial court sentenced Henderson to 20 years, with 18 years to be served in incarceration and the balance on probation. The court also announced at the sentencing hearing that it would leave the issue of restitution open for 60 days so that an appropriate restitution amount could be determined.³ Although the record reflects that no restitution hearing was ever held, the trial court entered a restitution order on April 25, 2018. In that order, the court noted that Henderson had been sentenced on February 27, 2018; that "restitution was left open for 90 days past [Henderson's] sentencing date"; and that "the restitution amount was determined to be proper in the amount of $3987.97."

Following his conviction, Henderson filed a motion for a new trial. The trial court denied that motion, and Henderson now appeals from that order.

1. Henderson asserts that the trial court erred in considering his prior convictions during sentencing. We disagree.

(a) Under Georgia law, the trial judge in all non-death penalty felony cases is required to conduct a sentencing hearing, at which he or she "shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions." OCGA § 17-10-2 (a) (1). And Georgia's criminal discovery statute ( OCGA § 17-16-1, et seq. ) provides that "[t]he prosecuting attorney shall, no later than 10 days prior to trial, or at such time as the court orders but in no event later than the beginning of trial, provide the defendant with notice of any evidence in aggravation of punishment that the state intends to introduce in sentencing." OCGA § 17-16-4 (a) (5).

On appeal, Henderson contends that the State failed to comply with the notice requirements of OCGA § 17-16-4 (a) (5) and that the trial court therefore could not consider his prior convictions during sentencing. Henderson's argument, however, ignores the fact that the State is not subject to the statutory notice requirements unless the defendant has provided written notice pursuant to OCGA § 17-16-2 (a)⁴ that he has elected to participate in reciprocal discovery. See Soler v. State , 354 Ga. App. 93, 97 (2), 840 S.E.2d 169 (2020) ("Under the current statutory scheme, the State is not required to provide notice of its intent to use a prior conviction in aggravation of sentencing under OCGA § 17-16-4 (a) (5) unless written notice of a defendant's election to participate in reciprocal discovery under OCGA § 17-16-2 (a) is provided to the State.") (citation and punctuation omitted). Here, the appellate record contains no evidence showing that either Henderson or the State "opted into the reciprocal discovery provisions of [the criminal discovery statute]. Thus the ten-day time requirement of OCGA § 17-16-4 (a) [(5)] did not apply in this case." Sullins v. State , 350 Ga. App. 83, 91 (3) (a), 828 S.E.2d 142 (2019). See also Wright v. State , 226 Ga. App. 848, 849-850 (4), 487 S.E.2d 405 (1997).

(b) During the sentencing hearing, the State's evidence of Henderson's prior convictions consisted of the statements of the prosecutor, which were not challenged by Henderson. See State v. Rosenbaum , 305 Ga. 442, 451 (2) (a), 826 S.E.2d 18 (2019) (because "attorneys are officers of the court," in the context of the hearing, "a statement to the court in [the attorney's] place is prima facie true and needs no further verification unless the same is required by the court or the opposite party") (citation and punctuation omitted); Johnson v. State , 348 Ga. App. 667, 673 (1) (a), 824 S.E.2d 561 (2019) (noting that "in the absence of an objection, a prosecutor's evidentiary proffers to the...