Mallory v. State

• Decision Date: 26 February 2016
• Docket Number: No. A15A2343.,A15A2343.
• Citation: 335 Ga.App. 852,783 S.E.2d 370
• Parties: MALLORY v. The STATE.
• Court: Georgia Court of Appeals

335 Ga.App. 852

783 S.E.2d 370

MALLORY

v.The STATE.

No. A15A2343.

Court of Appeals of Georgia.

Feb. 26, 2016.

Quentin Antonia Mallory, Pro Se.

Suzanne Zgraggen Brookshire, Rosemary M. Greene, for Appellee.

BARNES, Presiding Judge.

Acting pro se, Quentin Mallory appeals the trial court's denial of his motion to remove a provision of his probation banishing him from Bartow and Gordon Counties. For the reasons that follow, we affirm the trial court's ruling.

A Bartow County jury convicted Mallory of robbery by force, false imprisonment, and simple battery, and in October 2007, the trial court sentenced him to serve 10 years in confinement, followed by 15 years on probation. The terms of his probation directed that he have no contact with the victim or her place of work and banished from Bartow and Gordon Counties, which comprise the Cherokee Judicial Circuit.¹

In June 2015, Mallory filed a pro se motion to modify the terms of his probation. In his motion, he said that he had previously been released from confinement under this sentence and had been placed on probation. He further stated that, "[b]ecause of [his] inability to rely upon his only possible family support system which is exclusively present in Bartow County, he again committed crimes while on parole in Hall County. The Hall County sentence of twelve years, with six to serve, is being served concurrently with the sentence in this case."

Mallory alleged in his motion that the Board of Pardons and Paroles had notified him that he was required to complete a work release program before he could be released on parole. Due to his banishment from Bartow County, he asserts, the Department of Corrections had advised him that he is ineligible for assignment to a transition center to complete the work release program because his "only possible parole addresses are with his family in Bartow County." He acknowledged that prohibiting contact with the victim was a reasonable requirement, but argued that he had no prior history with the victim that would justify banning him from the area completely. The trial court denied the motion to modify the term of probation, and Mallory appeals.

Still acting pro se, Mallory asserts on appeal that the trial court abused its discretion by imposing the banishment provision "without a rational basis" for doing so, and in denying his motion to modify his sentence without considering either that he had no relationship with the victim or the impact of the provision on his rehabilitation. He argues that the purpose of allowing a defendant to serve part or all of a criminal sentence on probation is to permit the court to exercise supervisory control over the rehabilitation of an individual who has committed criminal acts, and that banishing him from Bartow County guarantees that he cannot succeed because he needs a family support system "due to his intellectual and psychological disabilities."

Our constitution provides that "banishment beyond the limits of the state shall [not] be allowed as a punishment for crime." Ga. Const of 1983, Art. I, § I, ¶ XXI. That provision "was first added in the 1877 version of the state constitution and has been carried through verbatim in the present constitution." Jason S. Alloy, " ‘ 158–County Banishment’ in Georgia: Constitutional Implications under the State Constitution and the Federal Right to Travel,

" 36 Ga. L. Rev. 1083, 1093 (2002). In 1974, our Supreme Court considered whether the original "drafters of this constitutional provision intended to prohibit banishment ‘beyond the limits of the state’ but not to prohibit banishment from specified areas within the state," and concluded that they did not intend to prohibit banishment from areas within the state. State v. Collett, 232 Ga. 668, 208 S.E.2d 472 (1974).

The legislature has also established that a sentencing court may require a probationer to remain within a specified location during his period of probation, but in 2006, it amended that provision to require that banishment to a particular area must "consist of at least one entire judicial circuit as described by Code Section 15–6–1" and cannot be an area where "any service or program in which the probationer must participate as a condition of probation is not...