State v. Hanna, S18A1559

Citation305 Ga. 100,823 S.E.2d 785
Decision Date04 February 2019
Docket NumberS18A1559
Parties The STATE v. HANNA.
CourtSupreme Court of Georgia

Stephany Julissa Luttrell, A.D.A., Paul L. Howard, Jr., District Attorney, Lyndsey Hurst Rudder, Deputy D.A., OFFICE OF THE FULTON COUNTY DISTRICT ATTORNEY, 136 Pryor Street, S.W., 4th Floor, Atlanta, Georgia 30303, Christopher M. Carr, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellant.

Lauren Beth Shubow, FULTON COUNTY PUBLIC DEFENDER, Zanele Elaine Ngubeni, Margaret Elizabeth Bullard, OFFICE OF THE PUBLIC DEFENDER, ATLANTA JUDICIAL CIRCUIT, 100 Peachtree Street NW, Suite 1600, Atlanta, Georgia 30303, for Appellee.

Boggs, Justice.

The State appeals from the trial court's judgment of conviction and sentence imposed on Tina Marie Hanna after her plea of guilty to felony murder and related crimes, contending that the sentence is illegal and void because the trial court improperly sentenced Hanna on the basis of the "rule of lenity." The rule of lenity, however, is not implicated in this case, because the trial court erred in sentencing Hanna for an offense which was not charged and to which she did not plead guilty. We therefore vacate the trial court's judgment and remand the case to the trial court for further proceedings consistent with this opinion.

At the plea hearing on April 24, 2018, the prosecutor stated the factual basis for the plea, and defense counsel made a statement on the record in response.1 The trial court also briefly questioned Hanna, who has a composite I.Q. of 58. She was the mother of Mombera Hanna, the victim in this case, and had two older children, who were one and four years old at the time of Mombera's death. All three children had the same father, who was married to someone else. Mombera was born prematurely on March 12, 2011, and released from Grady Hospital in May, after approximately two months in the premature baby unit. At the time of his release, he weighed 7.2 pounds. On September 3, 2011, emergency medical technicians answered a 911 call and found Mombera unresponsive; he was taken to the hospital, but doctors were unable to resuscitate him. At the time of the autopsy, Mombera weighed 6.3 pounds. The opinion of the medical examiner was that Mombera died of starvation. As part of the plea, defense counsel admitted that Hanna failed to provide necessary sustenance and failed to seek medical attention for Mombera, but stated in mitigation that Hanna was intellectually disabled, that the medical examiner did find food in Mombera's system, and that the hospital had failed to send feeding instructions home with Hanna when Mombera was released.

Hanna was charged with two counts of felony murder, OCGA § 16-5-1, and two counts of cruelty to children in the first degree, OCGA § 16-5-70. The felony-murder counts were predicated on first-degree cruelty to children by depriving the child of necessary sustenance to the extent that his health and well-being were jeopardized and by failing to seek necessary and adequate medical attention for the child. Hanna entered a non-negotiated plea of guilty to all four counts, but at the pretrial motions hearing and the plea hearing, defense counsel argued that the rule of lenity required that Hanna be sentenced as for contributing to the deprivation of a minor leading to death, pursuant to former OCGA § 16-12-1 (b) (3) and (d.1) (1) (2011), instead of for felony murder.

The trial court chose to sentence Hanna on the first count of felony murder, based upon her causing the child's death by depriving him of necessary sustenance to the extent that his health and well-being were jeopardized. The court further stated that it would apply the rule of lenity to that conviction and sentence Hanna as for contributing to the deprivation of a minor leading to death. The court sentenced Hanna to ten years in prison for felony murder, with the first four years to be served in confinement and the balance on probation.2 The State strenuously objected:

Your Honor, I think I need to put on the record that the State has not [a]greed to any reduction from felony murder. The State does not agree to 16-12-1, that is not on the indictment, and sentencing someone without the approval of the district attorney or the district attorney's office, the state disagrees that the court is able to do that, to sentence on a count that is not even in the indictment, to a sentence not authorized under the law.

The trial court also entered an "Order to Be Attached to Sentence" that stated in part:

FURTHERMORE, it is the standard practice in this Court that all Defendants are allowed, for any reason, to withdraw their plea after sentence is handed down by the Court. If this Court's sentence ... is not upheld by any higher court, this Court authorizes the Defendant to withdraw her plea and proceed to trial.

1. As a preliminary matter, we address the question of our jurisdiction. Under OCGA § 5-7-1 (a) (6), the State may appeal in a criminal case "[f]rom an order, decision, or judgment of a court where the court does not have jurisdiction or the order is otherwise void under the Constitution or laws of this state." As discussed below, the sentence imposed here was void, and "[a]s such, the State's appeal is authorized by OCGA § 5-7-1 (a) (6) and this Court has jurisdiction to review the case on the merits." (Footnote omitted.) State v. Owens, 296 Ga. 205, 208 (2), 766 S.E.2d 66 (2014) ; see also Blackwell v. State, 302 Ga. 820, 827-828 (4), 809 S.E.2d 727 (2018).

2. In its first enumeration of error, the State contends that the trial court erred in applying the rule of lenity in sentencing Hanna as for deprivation of a minor child leading to death, instead of an appropriate sentence for felony murder.

The Supreme Court of the United States has referred to the rule of lenity as a sort of junior version of the vagueness doctrine, which requires fair warning as to what conduct is proscribed. The rule of lenity applies when a statute, or statutes, establishes, or establish, different punishments for the same offense, and provides that the ambiguity is resolved in favor of the defendant, who will then receive the lesser punishment. However, the rule does not apply when the statutory provisions are unambiguous. The rule of lenity is a rule of construction that is applied only when an ambiguity still exists after having applied the traditional canons of statutory construction.

(Citations and punctuation omitted.) Banta v. State, 281 Ga. 615, 617 (2), 642 S.E.2d 51 (2007).

But we need not apply the rule of lenity because the sentence imposed here was erroneous for a more fundamental reason. Hanna pled guilty to and was convicted of felony murder, but she was sentenced as for a crime of which she was not convicted. The judgment therefore imposes an illegal and void sentence, and it must be vacated and the case returned to the trial court.

[A] sentence is void if the court imposes punishment that the law does not allow. Whether a sentence amounts to "punishment that the law does not allow" depends not upon the existence or validity of the factual or adjudicative predicates for the sentence, but whether the sentence imposed is one that legally follows from a finding of such factual or adjudicative predicates.

(Citations and punctuation omitted.) von Thomas v. State, 293 Ga. 569, 571-572 (2), 748 S.E.2d 446 (2013). And "a sentence which is not allowed by law is void, and its illegality may not be waived." (Citations and punctuation omitted.) Id. at 573 (2), 748 S.E.2d 446.

Here, Hanna pled guilty to and was convicted of felony murder, for which death and imprisonment for life, with or without the possibility of parole, are the only sentences prescribed by law. See OCGA § 16-5-1. The trial court expressly sentenced Hanna on the first felony-murder count, but it applied the penalty prescribed for violation of former OCGA § 16-12-1 (b) (3), with which Hanna was not charged and to which she did not plead guilty. This sentence amounted to "punishment that the law does not allow," is void, and must be vacated. Cf. Bynes v. State, 336 Ga. App. 223, 228 (2), 784 S.E.2d 71 (2016) (holding that sentence for crime not charged in indictment was void).

In its sentencing order, the trial court relied on the rule of lenity to conclude that it could give Hanna a sentence other than that required for a felony murder conviction. The rule of lenity, however, cannot be applied in this fashion. Under the rule of lenity, " [a]mbiguity in a statute defining a crime or imposing a penalty should be resolved in the defendant's favor.’ " State v. Hudson, 303 Ga. 348, 354 n.5, 812 S.E.2d 270 (2018) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 296 (2012)). See also Banta, supra, 281 Ga. at 617, 642 S.E.2d 51 ("The rule of lenity applies when a statute, or statutes, establishes, or establish, different punishments for the same offense, and provides that the ambiguity is resolved in favor of the defendant, who will then receive the lesser punishment.").

In some cases, the rule of lenity has been applied to decide what sentence should be imposed because the statute determining the sentence is ambiguous. See, e.g., Gee v. State, 225 Ga. 669, 676-677, 171 S.E.2d 291 (1969) (holding that a defendant could be sentenced to a fine rather than prison time because although the statute under which he was convicted said the offense was a felony, which means it should be punished by imprisonment, the statute also said the crime could be punished by a fine, imprisonment, or both); Mathis v. State, 336 Ga. App. 257, 261, 784 S.E.2d 98 (2016) (applying the rule of lenity to ambiguous language in the statute that governed whether the defendant was subject to being sentenced as a recidivist). That application of the rule of lenity is not at issue in this...

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  • Smallwood v. State
    • United States
    • Georgia Supreme Court
    • November 16, 2020
    ...in whether to sentence a defendant to the greater or lesser offense "should be resolved in the defendant's favor." State v. Hanna , 305 Ga. 100, 103 (2), 823 S.E.2d 785 (2019) (citations and punctuation omitted). However, it is important to recognize that "[t]he rule of lenity is a rule of ......
  • Kinslow v. State
    • United States
    • Georgia Supreme Court
    • June 21, 2021
    ...ambiguity in a statute defining a crime or imposing a penalty should be resolved in the defendant's favor." State v. Hanna , 305 Ga. 100, 103 (2), 823 S.E.2d 785 (2019) (citation and punctuation omitted); see also State v. Hudson , 303 Ga. 348, 353 (3) n.5, 812 S.E.2d 270 (2018). It "is app......
  • Rice v. State
    • United States
    • Georgia Court of Appeals
    • March 6, 2020
    ...to withdraw his guilty pleas to two counts ... after the sentences for those counts were vacated on appeal." State v. Hanna , 305 Ga. 100, 106 (3), 823 S.E.2d 785 (2019). And more recently in Pope v. State , 301 Ga. 528, 801 S.E.2d 830 (2017), the Supreme Court again cited Kaiser with appro......
  • Brown v. State, S19A0820
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    • Georgia Supreme Court
    • October 7, 2019
    ...court did not err.(Footnote and punctuation omitted.) Davis v. State , 306 Ga. 140, 143, 829 S.E.2d 321 (2019) (citing State v. Hanna , 305 Ga. 100, 105 (2), 823 S.E.2d 785 (2019) ). Accordingly, this claim is without merit. 6. Finally, Appellant asserts that her trial counsel was constitut......
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