Rooney v. State

• Decision Date: 01 March 2010
• Docket Number: No. S09A1604.,S09A1604.
• Citation: 690 S.E.2d 804
• Parties: ROONEY v. The STATE.
• Court: Georgia Supreme Court

690 S.E.2d 804

ROONEY v. The STATE.

No. S09A1604.

Supreme Court of Georgia.

March 1, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John Rooney, pro se.

Daniel J. Porter, District Attorney, Stephen A. Fern, Phil Wiley, Asst. Dist. Attys., for appellee.

CARLEY, Presiding Justice.

In 1995, John Rooney entered a negotiated plea of guilty to rape, aggravated sodomy, aggravated sexual battery, and three counts of battery. In an unpublished opinion, the Court of Appeals affirmed the denial of a motion for out-of-time appeal. Rooney v. State, 248 Ga.App. XXVII (2001). In the years since, Rooney has filed several motions to vacate his convictions and sentences.

In 2008, the trial court denied a motion to vacate void consecutive sentences due to the unconstitutionality of OCGA § 17-10-10. Acting pro se, Rooney appealed from that order, and this Court transferred the case to the Court of Appeals because the trial court did not rule upon the constitutional challenge. The Court of Appeals dismissed the appeal, and we granted certiorari and remanded the case to that court, stating that Rooney's claims were properly the subject of a motion to vacate a void sentence, the denial of which is directly appealable. The Court of Appeals remanded the case to the trial court for consideration and ruling on the constitutional challenge to OCGA § 17-10-10, and noted that an appeal to the proper court may be filed thereafter.

On April 3, 2009, the trial court entered an order analyzing and applying the rule that a constitutional attack on a state statute must be made at the first opportunity, and holding that "Rooney has waived his ability to assert a constitutional challenge to OCGA § 17-10-10 or any other statute in connection with his 1995 conviction." The trial court further found that "the constitutional challenges asserted by Rooney do not provide grounds for relief; therefore, the Court specifically DENIES the . . . challenge to the constitutionality of OCGA § 17-10-10." Rooney filed a timely notice of appeal from that order to this Court. In a separate order, the trial court also denied a motion for appointment of counsel.

1. When a trial court rules that an attack upon the constitutionality of a statute is untimely, and refuses to consider and rule on the constitutional issue, an ensuing appeal does not come within this Court's exclusive appellate jurisdiction pursuant to Art. VI, Sec. VI, Par. II(1) of the Georgia Constitution of 1983 over cases in which the constitutionality of a law has been drawn into question. Worley v. Save Oil Co., 231 Ga. 227, 200 S.E.2d 896 (1973). In this case, however, the trial court not only ruled on the timeliness of Rooney's constitutional challenges, it also made a distinct ruling, in the alternative, rejecting all of those challenges on the merits. Thus, if the trial court erred in finding that the challenges were untimely, we will exercise our jurisdiction to resolve the constitutional issues. See Bell v. Austin, 278 Ga. 844, 607 S.E.2d 569 (2005). Compare Perez-Castillo v. State, 275 Ga. 124, 125, 562 S.E.2d 184 (2002).

2. As noted above, we have already held on certiorari that Rooney's claims were properly the subject of a motion to vacate a void sentence. Because that order constitutes the law of the case, the trial court was not authorized to make any ruling to the contrary. "`Our unreported nonprecedential decisions are still binding on the parties, for they establish the law of the case as provided by OCGA § 9-11-60(h).' Cit." Moreton Rolleston, Jr., Living Trust v. Kennedy, 277 Ga. 541, 542, 591 S.E.2d 834 (2004). "`The "law of the case" doctrine is not confined to civil cases, but applies also to rulings made by appellate courts in criminal cases. (Cit.)' Cit." Langlands v. State, 282 Ga. 103, 104(2), 646 S.E.2d 253 (2007).

Moreover, "a sentencing court retains jurisdiction to correct a void sentence at any time. . . ." Williams v. State, 271 Ga. 686, 689(1), 523 S.E.2d 857 (1999). See also Chester v. State, 284 Ga. 162(1), 664 S.E.2d 220 (2008), overruled on other grounds, Harper v. State, 286 Ga. 216, 686 S.E.2d 786 (2009). The cases relied on by the trial court are clearly distinguishable, as they involved constitutional attacks on substantive criminal statutes, and did not resolve any contention that a sentence was void. See Perez-Castillo v. State, supra; Kolokouris v. State, 271 Ga. 597(1), 523 S.E.2d 311 (1999). Indeed, "the only ground for authorizing a trial court to correct a sentence at any time is that the sentence is void. Cits." Williams v. State, supra at 689(2), 523 S.E.2d 857. "`A sentence is void if the court imposes punishment that the law does not allow (cit.)' (cit.)." Curtis v. State, 275 Ga. 576, 577(1), 571 S.E.2d 376 (2002). Therefore, an attack on a sentence as unlawfully consecutive may be made at any time by means of a motion to vacate a void sentence. See Chester v. State, supra; Johnson v. State, 298 Ga.App. 639, 643(3), 680 S.E.2d 675 (2009). Furthermore, as we stated when previously granting certiorari, the denial of such a motion is directly appealable. Williams v. State, supra at 689(1), 523 S.E.2d 857.

Accordingly, the trial court erred in ruling that Rooney's constitutional challenges to OCGA § 17-10-10 were waived, and we now proceed to consider those challenges on the merits.

3. All of Rooney's constitutional challenges are directed against subsection (a) of OCGA § 17-10-10, which provides as follows:

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.

Interestingly, "most states continue the common-law tradition of entrusting to judges' unfettered discretion the decision whether sentences for discrete offenses shall be served consecutively or concurrently." Oregon v. Ice, ___ U.S. ___, ___, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009).

Rooney first contends that OCGA § 17-10-10(a) is void for vagueness. However, "courts have generally recognized that statutes which afford discretion to a sentencing court to impose consecutive sentences do not violate due process. Cits." State v. Jacobs, 644 N.W.2d 695, 699(IV) (Iowa 2001). As the Court of Appeals has correctly recognized, the imposition of consecutive sentences does not involve

any denial of due process. . . . Prohibited behavior is described in various criminal statutes, along with possible punishments. Notice that the specific punishment will be determined as a matter of discretion upon consideration of the facts and circumstances of each case is also provided via statute.

Jefferson v. State, 209 Ga.App. 859, 863(3), 434 S.E.2d 814 (1993). Contrary to one of Rooney's arguments, OCGA § 17-10-10(a) does not conflict with specific sentencing provisions in Title 16.

The discretionary assessment of punishment within legislatively prescribed boundaries has long been ingrained and accepted in American jurisprudence. In United States v. Booker, 543 U.S. 220, 233, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court observed that it has "never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range." . . . We do not believe that the legislatively endowed, normative decision whether to cumulate sentences exceeds that level of discretion that the Supreme Court has always recognized as consistent with due process. The Legislature has charged the trial court with the determination of whether to cumulate, and the trial court is free to make this determination so long as the individual sentences are not elevated beyond their respective statutory maximums.

Barrow v. State, 207 S.W.3d 377, 381-382 (Tex.Crim.App.2006).

Rooney also argues that OCGA § 17-10-10(a) is unconstitutional under the rule of lenity. However, that rule cannot itself render any statute unconstitutional. See Lurie v. Wittner, 228 F.3d 113, 126 (2nd Cir.2000). To the contrary, its application may render a statute constitutional. "It follows that Rooney's invocation of the rule of lenity does not add anything to his vagueness argument." Ortiz v. N.Y.S. Parole in Bronx, N.Y., 586 F.3d 149, 158, fn. 4 (2nd Cir.2009). It is a rule of construction which "`applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.'" Banta v. State, 281 Ga. 615, 618(2), 642 S.E.2d 51 (2007). Nothing in either the sentences imposed in this case "or the language of OCGA § 17-10-10 implicates the rule of lenity. Neither the statute nor the sentences are ambiguous; the trial court had discretion to impose consecutive sentences, which it exercised here." Dowling v. State, 278 Ga.App. 903, 904, 630 S.E.2d 143 (2006).

Rooney further contends that OCGA § 17-10-10(a) is unconstitutional under the requirement that separate convictions and sentences for certain continuous criminal acts must merge. See Ingram v. State, 279 Ga. 132, 133(2), 610 S.E.2d 21 (2005). Compare Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006). However, such requirement, like the rule of lenity, is simply not implicated by the statute. OCGA § 17-10-10(a) does not mandate the disregard of any necessary merger. Instead, it provides for the trial court's determination of whether authorized sentences run consecutively or concurrently.

Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and its progeny, Rooney urges that OCGA § 17-10-10(a) violates the Sixth Amendment requirement that any fact exposing a defendant to a greater potential sentence must be found by a jury and not by a judge. "These decisions do not, however, speak to a trial court's authority to cumulate sentences when that authority is provided by statute and is not based upon discrete fact-finding, but is wholly discretionary." Barrow v. State, supra at 379. Appre...