Huynh v. State

• Decision Date: 04 February 2021
• Docket Number: A20A2059
• Citation: 358 Ga.App. 317,855 S.E.2d 63
• Parties: HUYNH v. The STATE.
• Court: Georgia Court of Appeals

358 Ga.App. 317

855 S.E.2d 63

HUYNH

v.The STATE.

A20A2059

Court of Appeals of Georgia.

February 4, 2021

Nghia Huynh, for Appellant.

Patsy A. Austin-Gatson, Daniel J. Porter, Lawrenceville, Angela Lynn Mattozzi, for Appellee.

Hodges, Judge.

This is the second appearance of this case in this Court. In Huynh v. State , 347 Ga. App. XXVII (Aug. 1, 2018) (unpublished), we vacated Nghia Van Huynh's sentence because the Superior Court of Gwinnett County erred in sentencing Huynh to two 20-year terms in confinement for two counts of child molestation (Counts 4 and 13) without including a probationary term in the sentences. See OCGA § 17-10-6.2 (b) (2012); State v. Riggs , 301 Ga. 63, 799 S.E.2d 770 (2017). On remand, the trial court resentenced Huynh to two 15-year terms to serve 10 years in confinement on Counts 4 and 13.¹ Huynh now appeals from the trial court's denial of his motion to modify the sentences he received on resentencing, apparently arguing that he had been released from custody and could not lawfully be resentenced. We affirm.

In the first appearance of this case, we noted that

[o]n April 13, 2012, Huynh entered an Alford plea to three counts of child molestation and received an aggregate sentence of 40 years, with 25 years in confinement. The sentence was structured as twenty years to serve on Count 4; twenty years with the first five in confinement on Count 10, and twenty years to serve on Count 13. The sentence on Count 10 ran consecutively to that on Count 4, and the sentence on Count 13 ran concurrently with the other two counts.^{[2 ]}

(Footnotes omitted.) Acting pro se, Huynh appealed from the denial of his motion to correct a void sentence, asserting that former OCGA § 17-10-6.2 (b) required that his sentences on Counts 4 and 13 include at least one year of probation. We agreed, vacated Huynh's sentences on Counts 4 and 13, and remanded the case to the trial court for resentencing.

During a September 14, 2018 resentencing hearing, Huynh attempted to raise arguments outside the scope of resentencing, including a claim that his original plea was not knowingly and voluntarily entered. The trial court determined that it did not have jurisdiction to address Huynh's additional arguments, and instead sentenced Huynh in an October 3, 2018 resentencing order to fifteen years with the first ten in confinement each on Counts 4 and 13. The sentence for Count 13 ran consecutively to the sentence for Count 10,³ which itself ran consecutively to the sentence for Count 4.⁴

On June 25, 2019, Huynh filed a timely pro se motion to modify his new sentences, contending that "some of the charges should have merged" and that "there is additional and relevant information that the court did not hear prior to sentencing." During the hearing on his motion, however, Huynh did not address these arguments; rather, he claimed that he "didn't do anything to the children" and that he was released from custody on August 29, 2018 but was immediately and unlawfully arrested again by Gwinnett County officers. The trial court denied Huynh's motion in a December 10, 2019 order, and this appeal followed.⁵

In two related enumerations of error,⁶ Huynh contends that he was released by the Department of Corrections "for specific crimes" and taken to Gwinnett County to be resentenced on those same crimes "without implementing all aspects of due process of law, including arrest, formal charging, arraignment, etc."⁷ He further questions whether a resentencing under such circumstances would be a "legally valid sentence." We conclude that the trial court correctly denied Huynh's motion to modify his sentence.

"Whether to grant a motion to correct a sentence under OCGA § 17-10-1 (f) lies within the discretion of the trial court. So long as the sentence imposed by the court falls within the parameters prescribed by law, we will not disturb it." (Citation and punctuation omitted.) Patterson v. State , 347 Ga. App. 105, 107 (1), 817 S.E.2d 557 (2018). Relevant to this case, "a person convicted of a first offense of child molestation shall be punished by imprisonment for not less than five nor more than 20 years...." OCGA § 16-6-4 (b) (1).

Here, the trial court resentenced Huynh to two terms of fifteen years with ten years to serve in confinement each on Counts 4 and 13. The trial court also directed that Huynh's sentence for Count 13 run consecutively to the sentence for Count 10, and that the sentence for Count 10 run consecutively to the sentence for Count 4, resulting in an aggregate sentence of 40 years to serve 25 years in confinement. As a threshold matter, then, these sentences fall within the statutory range of sentences for the offense of child molestation. See OCGA § 16-6-4 (b) (1). Moreover, it was within the trial court's discretion to impose consecutive sentences for Huynh's separate offenses of child molestation. See, e.g., OCGA § 17-10-10 (a) ("Where at one term of court a person is convicted on more than one indictment or accusation, or on more than one count thereof, and sentenced to imprisonment, the sentences shall be served concurrently unless otherwise expressly provided therein. ") (emphasis supplied); Dowling v. State , 278 Ga. App. 903, 904, 630 S.E.2d 143 (2006) ("a trial court has discretion to impose consecutive sentences for separate offenses").

And while Huynh's aggregate sentence was the same, the sentences for each individual offense were less severe than his original sentences. See, e.g., Johnson v. State , 307 Ga. App. 499, 705 S.E.2d 303 (2010) ("Due process prohibits the imposition of a more severe sentence as a result of vindictiveness against a defendant for successfully attacking his conviction.") (citation and punctuation omitted). Accordingly, Huynh's new sentences raise no due process concerns. See, e.g., Fair v. State , 281 Ga. App. 518, 519 (1), 636 S.E.2d 712 (2006) ("a concurrent sentence may be converted into a consecutive sentence without being considered ‘more severe’ "); Alvarado v. State , 248 Ga. App. 810, 811 (1), 547 S.E.2d 616 (2001) (affirming resentencing order where trial court "converted [the defendant's] existing sentence from a concurrent sentence into a consecutive one without increasing the length of the sentence"). Huynh's remaining vehicle in pursuit of a remedy, if any he has, is a petition for habeas corpus. See OCGA § 9-14-40 et seq. ; Patterson , 347 Ga. App. at 109 (1), 817 S.E.2d 557 ("An extraordinary motion for new trial is not a remedy available to [Huynh] because he pled guilty. Construing [Huynh's] pleading as a motion to withdraw his guilty plea or a motion in arrest of judgment is equally ineffectual because both sorts of motions must be filed within the same term of court at which the guilty plea or judgment being challenged was entered.") (citation and punctuation omitted).

In sum, because the trial court's sentences fall within the statutory range of punishment for the offense of child molestation, the trial court did not err in its resentencing order. We therefore affirm the trial court's order denying Huynh's motion to modify his sentence.⁸

Judgment affirmed.

McFadden, C. J., and Doyle, P. J., concur.

1 Count 10, a third count of child...