Terry v. Hamrick, S08A0170.

• Decision Date: 30 June 2008
• Docket Number: No. S08A0170.,S08A0170.
• Citation: 284 Ga. 24,663 S.E.2d 256
• Parties: TERRY v. HAMRICK.
• Court: Georgia Supreme Court

663 S.E.2d 256

284 Ga. 24

TERRY v. HAMRICK.

No. S08A0170.

Supreme Court of Georgia.

June 30, 2008.

McNeill Stokes, Atlanta, GA, for appellant.

Thurbert E. Baker, Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Steven Mark Rodham, The Womack Law Firm, PC, Lafayette, for appellee.

HINES, Justice.

This Court granted Gregory Mac Terry's application for a certificate of probable cause to appeal the denial of habeas corpus relief. For the reasons that follow, we affirm in part, reverse in part, and remand with direction.

In 1994, Terry was indicted by a Douglas County grand jury on charges of aggravated stalking, kidnapping with bodily injury, aggravated assault, reckless driving, attempting to elude a police officer, passing within 200 feet of oncoming traffic, driving with a suspended license, and criminal trespass. On August 10, 1995, Terry pled guilty to all charges but kidnapping with bodily injury, and was sentenced to serve a total of 30 years, with 20 in custody; an order of nolle prosequi was entered on the charge of kidnapping with bodily injury. In 2006, Terry filed a petition for a writ of habeas corpus, asserting that his guilty plea was not knowingly and voluntarily entered, trial counsel was ineffective, the trial court was biased against him, and that his sentence was unconstitutional in that the trial court included the condition that during the duration of probation and parole, Terry would be banished from all counties in Georgia except Toombs County. After a hearing, the habeas court denied his petition on all grounds; on appeal, Terry argues the issues relating to his sentence.¹ "The proper standard of review requires that we accept the habeas court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts." (Citations and punctuation omitted.) Upton v. Johnson, 282 Ga. 600, 602, 652 S.E.2d 516 (2007)

1. We first address whether Terry properly brought his claims as a petition for a writ of habeas corpus, or whether a proceeding should have been addressed to the trial court. While the sentencing court retains jurisdiction over Terry during any period of probation and may modify or correct its probated sentence as necessary, OCGA § 42-8-34(g), Terry did more than simply seek a modification of the conditions of his probation; he asserted that his sentence was unconstitutional. When making such a claim, the seeking of a writ of habeas corpus is an available avenue for relief. See OCGA § 9-14-42(a); Hunter v. Dean, 240 Ga. 214, 239 S.E.2d 791 (1977), overruled on other grounds, Massey v. Meadows, 253 Ga. 389, 390, 321 S.E.2d 703 (1984). To the extent that Dean v. Whalen, 234 Ga. 182, 215 S.E.2d 7 (1975), holds to the contrary, it is overruled.

2. The sentence, inter alia, stated that: "The Defendant is banished from every county in the State of Georgia except Toombs County. If he is seen in the State of Georgia, other than in Toombs County, during the term of this Sentence it would be a violation of his parole and probation." (Emphasis supplied.) Terry correctly asserts that this provision of his sentence violates this State's constitutional provision regarding the separation of powers. "The legislative, judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided." Ga. Const. of 1983, Art. I, Sec. II, Par. III. The Board of Pardons and Paroles has executive power regarding the terms and conditions of paroles. See OCGA §§ 42-9-40, 42-9-44. See also Stephens v. State, 207 Ga.App. 645, 647(2), 428 S.E.2d 661 (1993). Accordingly, the trial court's attempt to control parole conditions violates the constitutional provision regarding the separation of powers, and this portion of the sentence must be vacated. Stephens, supra. Thus, on remand, the habeas court must enter an order granting the writ of habeas corpus as to this issue.

3. Terry also contends that, even when viewed solely as a condition of probation, the trial court's requirement that he be restricted to Toombs County during the period of probation is unconstitutional. He relies upon the state constitutional provision that: "Neither banishment beyond the limits of the state nor whipping shall be allowed as a punishment for crime." Ga. Const. of 1983, Art. I, Sec. I, Par. XXI. This Court addressed the constitutional prohibition of banishment in a similar context in State v. Collett, 232 Ga. 668, 208 S.E.2d 472 (1974). In that case, the challenge was to a condition of suspension in a sentence by which the defendant was banished from seven counties of the State. This Court's opinion examined the historical background of banishment as punishment for a crime and noted that the Constitution defined banishment "narrowly to mean only banishment beyond the limits of the state." (Emphasis supplied.) Id. at 670, 208 S.E.2d 472. Although Terry urges that banishment from 158 of Georgia's 159 counties is "de facto banishment from the entire State of Georgia," he is, in fact, not banished "beyond the limits of the state," and it is that which the Constitution forbids. Banishment from various counties of this State is not prohibited by the Constitution or by statute,² and "[i]n the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved." Id. However, banishment conditions are not unlimited: such conditions must not be "unreasonable or otherwise fail[] to bear a logical relationship to the rehabilitative scheme of the sentence pronounced. ..." Id. at 671, 208 S.E.2d 472.

Although Terry asserts that there is no logical relationship between the limitation that he remain in Toombs County during his probation and the rehabilitative scheme, the habeas court found otherwise. As the habeas court noted in its order, the trial court imposed the condition because of "the trial court's concern with the Petitioner's continued obsession with his ex-wife." And, there was more than ample basis for the trial court to have such concern. To commit his crimes, Terry violated a protective order regarding his ex-wife, and entered her home to await her arrival; he was psychologically evaluated as obsessed with her; he was "fixated on winning his family back"; and he was contemplating suicide at the time he committed the crimes, which included placing his ex-wife under his control. At his plea hearing, Terry admitted that he threatened to stab his ex-wife with scissors, and then to use them to kill himself, expressed his jealousy about his ex-wife's supposed affair with her employer, and said that before the police chased him, he was going to go confront the employer; he also professed that he "still love[d] her today." Terry also expressed the desire that upon release, he hoped to regain some visitation with his children, despite the statement of his oldest son that he had written to Terry and asked him to stop writing to him; Terry continued to write his son, despite the request to cease. In announcing its sentence, the trial court noted that it was particularly concerned that the incident could have resulted in a murder/suicide, and that a letter from Terry to his ex-wife referred to "when I'm released, even if it's after a hundred years —." The trial court found that for years Terry had followed a violent course of conduct toward his ex-wife, that he remained obsessed with her, and that she needed to be protected from that obsession.

The record clearly authorized the trial court to conclude that Terry had demonstrated a propensity for violence toward the victim that fully justified the court's concern for her safety, even after Terry's release from incarceration. See Parrish v. State, 182 Ga.App. 247, 248(2), 355 S.E.2d 682 (1987). The trial court has broad discretion in fashioning probation conditions. Collett, supra. The rehabilitative scheme devised promoted the victim's protection; it was Terry whose movements had to be curtailed, not hers, and a scheme that allowed her to move freely about most of the state without fear of Terry was appropriate. The requirement that Terry remain in Toombs County is properly protective of the victim, and logically related to the rehabilitative scheme. Terry contends that the trial court could have fashioned probation conditions leaving him more freedom, and notes that the trial court has "the ability to protect the victim with appropriate orders of restraint." However, the very facts of this case show the inefficacy of such orders as applied to Terry; a restraining order was in place when he committed his crimes. Also, the habeas court determined that the ten-year period of time during which the banishment provision was effective was not unreasonable, and, given the evidence of Terry's obsession with his ex-wife, this was not error. See Adams v. State, 241 Ga.App. 810, 527 S.E.2d 911 (2000).

Terry urges that this Court look to the General Assembly's 2006 amendment of OCGA § 42-8-35, see footnote 2, supra, for guidance as to what is now considered a reasonable rehabilitative scheme, noting that today he could only be confined to an area that is comprised of at least one judicial circuit during probation. As authority for his proposal, Terry cites this Court's opinion in Humphrey v. Wilson, 282 Ga. 520, 527(3)(c), 652 S.E.2d 501 (2007), which stated that "recent legislative enactments constitute the most objective evidence of a society's evolving standards of decency and of how a society views a particular punishment. ..." However, that opinion's reliance on "evolving standards of decency" was in the context of a claim that a certain punishment was cruel and unusual, a claim as to which "evolving standards of decency" has been recognized as a concept...