Regent v. the State.
| Decision Date | 07 March 2011 |
| Docket Number | No. A10A1603.,A10A1603. |
| Citation | 703 S.E.2d 81,306 Ga.App. 616 |
| Parties | REGENTv.The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Steven Regent, pro se.Paul L. Howard Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellee.BARNES, Presiding Judge.
Steven Regent entered into a nonnegotiated guilty plea to aggravated assault and aggravated battery after twice slitting his girlfriend's throat. He was sentenced to twenty years on the aggravated assault, of which twelve were to be served in custody, and to ten years of probation on the aggravated battery, consecutive to the assault sentence. After several hearings on the issue, the trial court also ordered Regent to pay restitution of $15,250 and denied his motion to void his aggravated assault conviction and sentence. Regent appeals pro se, arguing the trial court erred in refusing to void his aggravated assault conviction and sentence and erred in its restitution order. For the reasons that follow, we affirm.
1. The State argues that Regent's appeal should be dismissed because he had no right to directly appeal the denial of his “motion to void and vacate the illegal conviction and sentence on the aggravated assault charge.” In Harper v. State, 286 Ga. 216, 686 S.E.2d 786 (2009), our Supreme Court held that a petition to vacate a judgment of conviction is not an appropriate remedy in a criminal case, overruling previous cases holding that a criminal defendant could challenge his conviction at any time by filing any motion or pleading alleging the conviction was void. The court subsequently explained that
a claim that a charge should have merged under OCGA § 16–1–7 is a specific attack on the conviction. Although the determination that the conviction is void requires that the sentence also be set aside, as would be the case when a conviction is declared void for any reason, this fact does not alter the fundamental nature of the challenge to the conviction itself. In contrast, a challenge to a void sentence presupposes that the trial court was authorized to sentence the defendant but the sentence imposed was not allowed by law.
Williams v. State, 287 Ga. 192, 193, 695 S.E.2d 244 (2010).
Regent responds that this Court has jurisdiction to review the merger issue because he filed a timely direct appeal from the restitution order, and this is his first opportunity to argue the merger issue on appeal. We agree. Regent's sentence was not final until the trial court ruled on the restitution issue, which was directly appealable in its own right. See Williams v. State, 247 Ga.App. 783, 545 S.E.2d 343 (2001) Having jurisdiction over the restitution issue, we must address “all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below.” OCGA 5–6–34(d). Accordingly, we will consider whether the trial court erred in ruling on Regent's motion to vacate his aggravated assault conviction and sentence.
2. Regent contends the trial court should have merged the aggravated assault and aggravated battery counts because the facts supporting the assault charge were also used to support the battery charge, which included only the additional element of disfigurement.
Regent is not appealing from a conviction entered after a verdict following a bench or jury trial, however. He is appealing from a conviction entered after he pled guilty to aggravated assault and aggravated battery, and thus has waived the issue of whether the offenses merged.
When a criminal defendant pleads guilty to counts of an indictment alleging multiple criminal acts, and willingly and knowingly accepts the specified sentences as to such charged counts, the defendant waives any claim that there was in fact only one act and that the resulting sentences are void on double jeopardy grounds. [Regent] knowingly entered into the plea agreement, and having accepted the benefit of such bargain with the State, he now attempts to renege. Public policy and the ends of justice require that he not be allowed to do so.
(Citation omitted.) Turner v. State, 284 Ga. 494, 497(2), 668 S.E.2d 692 (2008).
The fact that Regent's plea was nonnegotiated does not alter the conclusion that he waived his right to argue that the counts should have merged. Carr v. State, 282 Ga.App. 134, 136, 637 S.E.2d 835 (2006). He was fully aware that if he pled guilty to the two offenses, the State intended to seek imposition of a lengthy sentence, but chose to admit having committed the acts and avoid a trial on the question of his guilt or innocence. He understood the constitutional rights he gave up by pleading guilty, and understood that, because his plea was nonnegotiated, the court could have sentenced him to the maximum penalty for both counts. The trial court found the plea to be freely and voluntarily entered, and took into account Regent's acceptance of responsibility when issuing the sentence, which could have been as lengthy as 40 years to serve. OCGA §§ 16–5–21(b); 16–5–24(b).
Even if Regent had not waived the issue, we would conclude that the offenses did not merge. The facts as presented at the plea hearing were that Regent and the victim, a real estate agent, had been dating for two years. He had previously displayed no violent tendencies, and the victim testified that if she had been asked five minutes before the assault whether Regent would ever hit her or anyone else she would have said no. The couple had returned to the victim's house after a party in January 2008 and were making small talk when Regent flew into a sudden rage and punched the victim in the face. He hit her again and again, then stopped. The victim's eyes had swollen shut and she could not see, she testified, but
I could hear one of my kitchen knives pulling out of the wooden butcher block on the counter top, and then he was on top of me again, and had grabbed my hands and pinned them down, and took the knife and slithered it across my throat from here (indicating) all the way up behind my ear. He almost cut my ear off. I could feel the skin tearing. I was screaming. I couldn't see anything. And then he did it again. He cut again below it, and it's kind of fuzzy after that.... I was trying to get away. I put my hands up [and] that's why they were cut up.
The victim passed out and when she awoke, Regent was gone and there was blood The telephone was broken, so the victim made her way to the street and someone called an ambulance, which took her to Grady Hospital.
The victim was in intensive care on a respirator for three days and underwent surgery, during which the doctors reattached glands in her neck. They also attempted to reattach the main nerve on one side of her face, but the end had drawn up into her skull and it would have caused more damage to attempt to locate it. She remained in the hospital for a week, and as of the plea hearing a year later was only beginning to be able to speak properly. Her tongue did not function well, she could not...
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...not merging his convictions for aggravated assault and armed robbery of the same victim before sentencing him); Regent v. State, 306 Ga.App. 616, 617–618, 703 S.E.2d 81 (2010) (holding that the defendant's entry of a guilty plea waived his claim on direct appeal that the trial court erred i......
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