Sentence Review Panel v. Moseley

• Decision Date: 07 July 2008
• Docket Number: No. S08A0607.,S08A0607.
• Citation: 663 S.E.2d 679,284 Ga. 128
• Parties: SENTENCE REVIEW PANEL et al. v. MOSELEY.
• Court: Georgia Supreme Court

663 S.E.2d 679

284 Ga. 128

SENTENCE REVIEW PANEL et al. v. MOSELEY.

No. S08A0607.

Supreme Court of Georgia.

July 7, 2008.

Gray, Hedrick & Edenfield, LLP, Bruce M. Edenfield, Susan Lee Rutherford, Atlanta, Thurbert E. Baker, Atty. Gen., Mary Beth Westmoreland, Deputy Atty. Gen., Joseph J. Drolet, Senior Asst. Atty. Gen., for appellants.

Hall, Booth, Smith & Slover, J. Brown Moseley, Albany, pro se.

Gerald Richard Weber, Jr., Sarah E. Geraghty, Kilpatrick Stockton, Curtis Allen Garrett, Jr., Hayley R. Ambler, Atlanta, Patrick H. Head, Dist. Atty., Dana J. Norman, Asst. Dist. Atty., for amicus curiae.

CARLEY, Justice.

This appeal stems from the criminal prosecution of Sandra Widner for murder and possession of a firearm during commission of a crime. J. Brown Moseley, who was the District Attorney of the South Georgia Judicial Circuit at that time, entered into a plea agreement with Ms. Widner. Pursuant to that agreement, she pled guilty to the lesser charge of voluntary manslaughter in exchange for a recommended sentence of 15 years. The trial court accepted her plea and imposed the sentence. Immediately thereafter, Ms. Widner filed a petition with the Georgia Sentence Review Panel (Panel) and sought a reduction in her negotiated sentence. Despite the plea agreement, the Panel reduced her sentence to eight years.

Moseley filed suit against the Panel and its Administrator, the Commissioner of the Department of Corrections (Department), and the Chairman and individual members of the State Board of Pardons and Paroles (Board) (collectively referred to hereinafter as Appellants), seeking equitable relief against enforcement of the reduction of Ms. Widner's sentence. His complaint challenged the constitutionality of former OCGA § 17-10-6, which authorized the Panel to review and to reduce certain sentences imposed by the trial courts of this state. The trial court granted Appellants' motion to dismiss, concluding that Moseley lacked standing. On appeal, however, this Court reversed that ruling and remanded the case to the trial court for consideration of the merits of the constitutional challenge. Moseley v. Sentence Review Panel, 280 Ga. 646, 650(3), 631 S.E.2d 704 (2006).

On remand, the trial court found that former OCGA § 17-10-6 was unconstitutional and, to effectuate that holding, it granted equitable relief against the enforcement of the Panel's reduction of Ms. Widner's sentence. Appellants appeal from that order of the trial court.

1. As of July 1, 2007, former OCGA § 17-10-6 was repealed, and OCGA § 17-10-6.3 came into effect. Ga. L.2007, pp. 595, 596, §§ 2, 3. Subsection (b) of the new provision terminated the Panel's authority to review a sentence imposed after that effective date, but subsection (c) provides that the Panel has until November 1, 2008 to complete its review of all pending applications for sentence reduction. Thus, notwithstanding the repeal of former OCGA § 17-10-6, the Panel remains in existence and the question of the constitutionality of its authority to reduce sentences, such as Ms. Widner's, has not become moot by the enactment of OCGA § 17-10-6.3.

Turning to the merits of the constitutional challenge, "[t]he legislative, judicial, and executive powers shall forever remain separate and distinct ...." Ga. Const. of 1983, Art. I, Sec. II, Par. III. This provision distinguishes our state Constitution from the federal Constitution, which has no express provision "prohibit[ing] the officials of one branch of government from exercising the functions of the other branches." State v. Philipps, 246 Neb. 610, 521 N.W.2d 913, 916(III) (1994). Former OCGA § 17-10-6 did not simply create a commission with the authority to promulgate sentencing guidelines, which are then to be applied uniformly by the trial courts of this state. Compare Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (discussing the constitutionality of the Federal Sentencing Commission). Instead, that act created the Panel and invested it with "the authority to issue an order reducing the sentence originally imposed by the trial judge." Former OCGA § 17-10-6(c). Thus, it is clear that the purpose of the statute was to establish a separate quasi-appellate court with jurisdiction to review certain sentences imposed by the trial courts and with the plenary authority to modify those sentences downward. Since the Panel has the actual power to change a criminal sentence, rather than the limited authority to promulgate sentencing guidelines for the trial courts to apply themselves, former OCGA § 17-10-6 conferred judicial power on that Panel.

However, the Constitution of this state provides, in relevant part, that "[t]he judicial power of the state shall be vested exclusively in the following classes of courts: magistrate courts, probate courts, juvenile courts, state courts, superior courts, Court of Appeals, and Supreme Court." (Emphasis supplied.) Ga. Const. of 1983, Art. VI, Sec. I, Par. I. This constitutional provision prohibits the "establish[ment of] a separate judicial forum." Smith v. Langford, 271 Ga. 221 224, 518 S.E.2d 884 (1999). Accordingly, the General Assembly cannot divest a Georgia court "of its constitutional jurisdiction. Any such legislative act violates the constitution and is of no avail." Williams v. State, 138 Ga. 168, 170, 74 S.E. 1083 (1912). Nevertheless, that is the unconstitutional effect of former OCGA § 17-10-6. With certain limited exceptions, that statute, by its terms, divested the trial courts of this state of their jurisdiction to impose a final sentence in a criminal case, whenever the defendant applied to the Panel for review and, "in the opinion of the [P]anel, the sentence imposed by the trial judge is too harsh or severe in light of all of the circumstances surrounding the case and the defendant, and in light of the defendant's past history ...." Former OCGA § 17-10-6(c).

The dissent authored by Justice Benham relies on Art. VI, Sec. I, Par. VII of the Georgia Constitution of 1983, which authorizes the General Assembly to "abolish, create, consolidate, or modify judicial circuits and courts and judgeships ...." However, "constitutional provisions relating to the same subject matter must be construed together and harmonized if conflicts appear. [Cits.]" Copeland v. State, 268 Ga. 375, 377(1), 490 S.E.2d 68 (1997). Thus, Art. VI, Sec. I, Par. VII must be construed in pari materia with Art. VI, Sec. I, Par. I. By vesting the judicial power of this state exclusively in certain enumerated classes of courts, Art. VI, Sec. I, Par. I necessarily prohibits the creation of an entirely new class of court or judicial forum. Accordingly, Art. VI, Sec. I, Par. VII must be read only as authorizing the creation of new courts within an existing class. Justice Benham also mistakenly relies on Tax Assessors of Gordon County v. Chitwood, 235 Ga. 147, 153-154, 218 S.E.2d 759 (1975). That decision construed a predecessor of Art. VI, Sec. I, Par. I which did not "exclusively" vest the judicial power of this state in certain classes of courts, but rather vested that power in certain enumerated courts and "`such other courts as have been or may be established by law.' [Cits.]" Tax Assessors of Gordon County v. Chitwood, supra at 154, 218 S.E.2d 759. Instead of retaining that open-ended language, Art. VI, Sec. I, Par. I specifically authorizes only the establishment of municipal courts and the exercise of quasi-judicial powers by administrative agencies.

"[A]s a general proposition, ... the legislature can not ... diminish the jurisdiction of courts established by the constitution of this [s]tate." Hines v. Etheridge, 173 Ga. 870, 871(1), 162 S.E. 113 (1931). Sentencing is "traditionally reserved for the trial court." McClellan v. State, 274 Ga. 819, 820(1)(b), 561 S.E.2d 82 (2002). The General Assembly "`has no constitutional power to construe or alter judgments.' [Cit.]" Jenkins v. Jenkins, 233 Ga. 902, 903(1), 214 S.E.2d 368 (1975). Thus, the General Assembly does not have the constitutional authority to divest the trial courts of this state of their traditional jurisdiction over sentencing, by creating a quasi-appellate tribunal to review and alter the otherwise lawful sentences imposed by those trial courts. However, in contravention of the Georgia Constitution, former OCGA § 17-10-6 "establish[ed] a separate judicial forum." Smith v. Langford, supra. Contrary to Justice Benham's dissent, the mere fact that the Panel is comprised of superior court judges cannot operate to confer constitutional power on those judges or to authorize the General Assembly to disregard the separation of powers by vesting judicial power in the Panel in direct violation of Art. VI, Sec. I, Par. I of the Georgia Constitution of 1983. See Jones v. Boykin, 185 Ga. 606, 609(3), 196 S.E. 900 (1938). Compare Moyers v. State, 186 Ga. 446, 459(2), 197 S.E. 846 (1938). "[N]either the legislature nor a judge, nor the judges of a superior court have authority to limit or expand the jurisdiction and authority of a superior court." Fulton County v. Woodside, 222 Ga. 90, 100(2), 149 S.E.2d 140 (1966).

"The attempt of the General Assembly, in the passage of the act referred to, is an invasion of the prerogative of the judiciary, which is not sanctioned by the constitution." [Cit.] The legislature may not, without express constitutional authority, abridge, restrict, or modify the jurisdiction and power of the judiciary. Consequently, [former OCGA § 17-10-6] is not binding ....

Parks v. State, 212 Ga. 433, 437(3), 93 S.E.2d 663 (1956). See also State v. Philipps, supra (holding the Nebraska resentencing statute unconstitutional under the separation of powers clause of that state's constitution). Therefore, the trial court correctly concluded that that former statute was unconstitutional.

2. Appellants urge that, if the trial court correctly found former OCGA § 17-10-6 to be unconstitutional, it...