Nazario v. State

• Citation: 746 S.E.2d 109,293 Ga. 480
• Decision Date: 11 July 2013
• Docket Number: No. S13A0006.,S13A0006.
• Parties: NAZARIO v. The STATE.
• Court: Supreme Court of Georgia

293 Ga. 480

746 S.E.2d 109

NAZARIO

v.The STATE.

No. S13A0006.

Supreme Court of Georgia.

July 11, 2013.

Lloyd Johnson Matthews, Jonesboro, for Appellant.

Samuel S. Olens, Atty. Gen., Paula Khristian Smith, Senior Asst. Atty. Gen., Department of Law, Tracy Graham Lawson, Dist. Atty., Lalaine Aquino Briones, Asst. Dist. Atty., Office of the District Attorney, for Appellee.

NAHMIAS, Justice.

Appellant William Nazario pled guilty to 17 counts of a 26–count indictment charging him with numerous crimes related to the beating and stabbing death of his girlfriend, Korean Bowden, and the mistreatment of her three young daughters. Despite Appellant's argument at the plea hearing that several of his 17 convictions merged, the trial court sentenced him for all 17 crimes. On direct appeal, Appellant again claims that several of his convictions and sentences are void because they merged.

The State contends that we need not address those claims on their merits because Appellant's entry of a guilty plea waives any and all merger claims. There is a line of Court of Appeals cases, as well as one habeas case from this Court, that hold that a guilty plea waives merger claims. But we conclude that those cases were wrongly decided. This Court has previously addressed the merits of merger claims that were raised on direct appeal from a guilty plea. More fundamentally, we have explained that, under Georgia law, see OCGA § 16–1–7(a), a defendant may not be legally convicted of a crime that is included as a matter of law or fact in another crime for which the defendant also stands convicted. A conviction that merges with another conviction is void—a nullity—and a sentence imposed on such a void conviction is illegal and will be vacated if noticed by this Court, even if no merger claim was raised in the trial court and even if the defendant does not enumerate the error on appeal. The merger issue must arise in a proceeding in which void convictions may be challenged, but a direct appeal is such a proceeding. And the merger of the convictions at issue must, of course, be established by the record.

Thus, as a practical matter, because the factual record in a guilty plea case is usually very limited, defendants who raise merger claims after pleading guilty, particularly claims that a conviction merged as a matter of fact, will rarely prevail. But while defendants who plead guilty waive trial, and the more fully developed factual record that a trial produces, they do not waive appellate review of merger claims, which are a species of void-conviction claim—a claim long recognized as an appropriate issue to consider on appeal from a guilty plea.

Accordingly, Appellant's merger claims cannot simply be deemed waived. However, largely because of the limited factual record resulting from his guilty plea, Appellant cannot show that most of his merger claims have merit, and we therefore affirm most of his convictions and sentences. But one of his merger arguments is correct. Both the indictment and the factual basis for the guilty plea show that Appellant's five separate convictions for concealing the death of his girlfriend merged into a single conviction and should have resulted in only one sentence for that crime rather than the five separate sentences that the trial court imposed. Accordingly, we vacate four of Appellant's five concealment convictions and sentences.

1. The record in this case, which includes the indictment, a plea form, the transcript of the plea hearing at which the prosecutor provided an extensive factual basis for the guilty plea, and the judgment of convictions and sentences, shows the following facts. On September 9, 2011, Korean Bowden took her three children, girls ages four, nine, and 12, to school. When she returned home, she informed her boyfriend, Appellant William Nazario, that she was leaving him. He responded by beating and stabbing Bowden to death. He concealed her body under a pile of clothes between a bed and a wall and then threw the knife and bloody bed sheets into the trash behind the house.

Around noon, Appellant picked up the younger two children from school and brought them back to the house, where he tied them up. Appellant also gagged the youngest child and placed her in a bathtub. Around 6:00 p.m., he drove to the oldest child's school, where he picked her up after she finished serving detention. Appellant brought her back to the house, where he bashed her head into a wall, slammed her into a fireplace, and threw her into a fish tank, breaking the child's nose and jaw in the process. Appellant then bound and gagged the child, forced her into a bedroom closet, and dragged a dresser in front of the door so she could not escape. A couple hours later, Appellant drove with the middle child to Bartow County, where his car broke down and he rented a hotel room. Appellant's plan was to take the child with him to New Jersey.

Three days later, when a pastor visited the house and knocked on the door, he spotted the oldest child peeking through a window. The pastor was able to enter the house, where he found the girl still bound and gagged, and he immediately called 911. The two children in the house, who had been without food and water since Appellant left, reported what had occurred. Responding officers searched the house and found Bowden's body, as well as the knife and bloody bed sheets in the trash behind the house. She had been stabbed approximately 20 times and had broken bones and internal bleeding from blunt force trauma.

When Appellant was interviewed by the police, he admitted that he killed Bowden and tried to conceal her death by placing her body under a pile of clothes between a bed and a wall and by throwing bloody sheets and the knife he used to stab her into the trash behind the house. He also admitted that he tied up the girls to keep them from finding their mother's body and reporting what had occurred.

On April 10, 2012, a Clayton County grand jury indicted Appellant for 26 crimes: one count of malice murder, four counts of felony murder, two counts of aggravated assault, four counts of aggravated battery, five counts of concealing a death, six counts of child cruelty, two counts of kidnapping, one count of rape, and one count of child molestation. On May 24, 2012, the State filed a notice of intent to seek a sentence of life without the possibility of parole.

On June 7, 2012, Appellant entered a negotiated guilty plea to 17 charges: one count of felony murder predicated on aggravated assault by stabbing Bowden with a knife; two counts of aggravated assault against Bowden (one for inflicting multiple injuries with a knife and the other for causing a bilateral subarachnoid hemorrhage by striking her about the head with an unknown object); four counts of aggravated battery (two against Bowden and two against the oldest child); five counts of concealing a death; and five counts of child cruelty. In exchange, the State agreed to dismiss the nine other charges and not to seek a sentence of life without parole.

Handwritten inserts on the plea statement say, “All sexual offenses dismissed,” and “Defendant insists that [the] law regarding merger and proscrip [tion] of multiple punishment for same conduct be observed [and] followed.” During the plea hearing, Appellant emphasized that he was not pleading guilty to malice murder, any of the sexual offenses, or kidnapping, and he argued that “any offenses that legally can be merged should be merged.” When Appellant later began to challenge the factual basis for the plea recited by the prosecutor, the trial court interrupted and said,

If he wants to contest the factual basis, then he doesn't have to plead guilty.... If he pleads not guilty, the case can be set for trial.... If he's contending that he did not do that and doesn't want to plead guilty, his option is to go to trial.

Appellant responded that he was not contesting the prosecutor's statement of the factual basis for the plea.

After noting the support for the negotiated plea by the victim's family, who did not want the children to endure a trial, the court accepted Appellant's guilty plea to the 17 counts. The court then sentenced Appellant to life in prison with the possibility of parole for felony murder, ten years to serve for each concealment conviction, and 20 years to serve for each conviction for aggravated assault, aggravated battery, and child cruelty, with all the sentences running concurrently. Later that day, the trial court entered a judgment on the 17 convictions and sentences.Appellant filed a timely notice of appeal.

2. (a) The State argues that we need not consider the merits of Appellant's merger claims, citing two of this Court's cases. One says that “[i]t is well established that [a] plea of guilty ... waives all defenses other than that the indictment charges no crime,” Smith v. Hardrick, 266 Ga. 54, 56–57, 464 S.E.2d 198 (1995) (emphasis, citations, and quotation marks omitted); and the other says that “[a] valid plea of guilty waives all known or unknown defenses,” Clark v. Caldwell, 229 Ga. 612, 612, 193 S.E.2d 816 (1972). Smith and Clark are both habeas corpus cases, not direct appeals from guilty pleas, and neither case involved a merger claim. However, the Court of Appeals has a long line of cases extending Smith to apply a similar waiver rule to merger claims raised in direct appeals challenging convictions based on guilty pleas.¹

The more recent of these cases draw support from this Court's decision in Turner v. State, 284 Ga. 494, 668 S.E.2d 692 (2008). In that habeas case, the petitioner argued that his 1997 guilty plea to four misdemeanor counts of public indecency was not knowing and voluntary based on a 1991 decision by the Court of Appeals suggesting that his four convictions should have merged as a matter of fact into one conviction for sentencing, because he committed only one indecent act, although several children saw it. See id. at 495, ...