Von Thomas v. State

• Decision Date: 09 September 2013
• Docket Number: No. S13G0198.,S13G0198.
• Citation: 293 Ga. 569,748 S.E.2d 446
• Parties: VON THOMAS v. The STATE.
• Court: Georgia Supreme Court

293 Ga. 569
748 S.E.2d 446

VON THOMAS
v.
The STATE.

No. S13G0198.

Supreme Court of Georgia.

Sept. 9, 2013.

[748 S.E.2d 447]

David Cooper Abbott, The Abbott Law Firm, P.C., McDonough, for appellant.

Wanda Lynn Vance, Assistant District Attorney, Lee Darragh, District Attorney, Northeastern Judicial Circuit, for appellee.

BLACKWELL, Justice.

[293 Ga. 569]Jerry Von Thomas was convicted of a felony and sentenced to a term of imprisonment, and because he previously had been convicted of three other felonies, he was sentenced pursuant to OCGA § 17–10–7(c) as a recidivist. Years later, von Thomas moved the sentencing court to vacate his sentence, claiming that he should not have been sentenced as a recidivist because he was denied the assistance of counsel in connection with one of his prior convictions. The sentencing court denied his motion on the merits, and the Court of Appeals affirmed, also on the merits. Thomas v. State, 317 Ga.App. 696, 732 S.E.2d 780 (2012). The sentencing court, however, had jurisdiction of the motion only to the extent that von Thomas presented a cognizable claim that his sentence was void. We granted certiorari to consider whether von Thomas presented any such claim, and

[748 S.E.2d 448]

we conclude that he did not. For that reason, his motion should have been dismissed for want of jurisdiction, and no court should have reached the merits. Accordingly, we vacate the decision of the Court of Appeals and remand for the motion to be dismissed.

1. In August 2006, von Thomas entered a plea of guilty on an accusation by which he was charged with unlawful possession of methamphetamine. The State previously had given notice of its intent to seek a recidivist sentence pursuant to OCGA § 17–10–7(c), which then provided as follows:

Except as otherwise provided in subsection (b) of this Code section, any person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state other than a capital felony must, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

OCGA § 17–10–7(c) (2006).¹ In support of a recidivist sentence, the State presented evidence at the sentencing hearing that von Thomas [293 Ga. 570]previously had been convicted of three felonies. First, the State proved, von Thomas had been convicted in 1999 of unlawful possession of cocaine. Second, in 2004, von Thomas had been convicted of unlawful possession of methamphetamine. Third, also in 2004, von Thomas had been convicted of unlawful possession of methamphetamine with intent to distribute. Based upon these prior convictions, the sentencing court imposed a recidivist sentence pursuant to OCGA § 17–10–7(c), sentencing von Thomas to imprisonment for a term of 12 years without the possibility of parole, followed by 18 years of probation.

In June 2011, von Thomas returned to the sentencing court and filed a motion to vacate his sentence. In support of that motion, von Thomas alleged that he unlawfully was denied the assistance of counsel in connection with his 1999 conviction for possession of cocaine.² Accordingly, he argued, the 1999 conviction did not count for recidivist sentencing purposes, and the sentencing court was, therefore, without authority in 2006 to impose a recidivist sentence. When the sentencing court took up the motion to vacate, it first considered its own jurisdiction and concluded that it had jurisdiction of the motion: “As [von Thomas] has set forth a cognizable reason why his sentence may be void, this Court has jurisdiction to modify [his] sentence if it so finds.” The sentencing court then considered the merits of the motion, however, and found that von Thomas was, in

[748 S.E.2d 449]

fact, represented by counsel at the time he entered the plea upon which the 1999 conviction was based, and for that reason, he had not been denied the assistance of counsel. Accordingly, the sentencing [293 Ga. 571]court denied the motion to vacate. Von Thomas appealed, and the Court of Appeals affirmed on the merits and without any discussion of the jurisdictional question.³Thomas, 317 Ga.App. at 697–698, 732 S.E.2d 780. We then granted certiorari, directing the parties to brief, in addition to the merits, whether the claim asserted by von Thomas in his motion really amounted to a claim that his sentence was void. We turn now to that question.

2. When a sentencing court has imposed a sentence of imprisonment, its jurisdiction to later modify or vacate that sentence is limited.⁴ The sentencing court generally has jurisdiction to modify or vacate such a sentence only for one year following the imposition of the sentence.⁵OCGA § 17–10–1(f). But a sentencing court has jurisdiction to vacate a void sentence at any time. Rooney v. State, 287 Ga. 1, 2(2), 690 S.E.2d 804 (2010). See also Harper v. State, 286 Ga. 216, 217, n. 1(1), 686 S.E.2d 786 (2009); Williams v. State, 271 Ga. 686, 688–689(1), 523 S.E.2d 857 (1999). In this case, von Thomas filed his motion to vacate his sentence nearly five years after the sentence was imposed. Accordingly, the sentencing court had jurisdiction of his motion only to the extent that it presented a cognizable claim that the sentence was void. For the reasons that follow, we conclude that it presented no such claim.

As we have explained before, “[a] sentence is void if the court imposes punishment that the law does not allow.” Crumbley v. State, 261 Ga. 610, 611(1), 409 S.E.2d 517 (1991) (citation omitted). See also Rooney, 287 Ga. at 2(2), 690 S.E.2d 804;Jones v. State, 278 Ga. 669, 670, 604 S.E.2d 483 (2004); Williams, 271 Ga. at 690(2), 523 S.E.2d 857. 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 [293 Ga. 572]follows from a finding of such factual or adjudicative predicates. For instance, a lawful sentence can be imposed only upon the adjudicative predicate of a lawful conviction. See Nazario v. State, 293 Ga. 480(2)(c), 746 S.E.2d 109 (2013) (“[To] allow the defendant to serve a sentence for a criminal conviction that has been identified as illegal and void would not comport with fundamental fairness and due process of law.”). Nevertheless, we have held in several cases that a defendant cannot assert a claim that his conviction was unlawful in an untimely motion to vacate his sentence simply by dressing it up as a claim that his sentence was void. See, e.g., Simpson v. State, 292 Ga. 764, 765, 740 S.E.2d 124 (2013); Williams v. State, 287 Ga. 192, 194, 695 S.E.2d 244 (2010). Instead, a claim that a conviction was unlawful must be asserted by a motion for new trial, direct appeal from the judgment of conviction, extraordinary motion for new trial, motion in arrest of judgment, or petition for the writ of habeas corpus. See

[748 S.E.2d 450]

Nazario, 293 Ga. at 488(2)(d), 746 S.E.2d 109;Simpson, 292 Ga. at 765, 740 S.E.2d 124. Motions to vacate a void sentence generally are limited to claims that—even assuming the existence and validity of the conviction for which the sentence was imposed—the law does not authorize that sentence, most typically because it exceeds the most severe punishment for which the applicable penal statute provides. See, e.g., Smith v. State, 322 Ga.App. 549, 551(2), 745 S.E.2d 771 (2013); Phillip v. State, 313 Ga.App. 302, 303, 721 S.E.2d 214 (2011); Crane v. State, 302 Ga.App. 422, 424(2)(b), 691 S.E.2d 559 (2010).

Recidivist sentencing is no different. The existence and validity of three prior felony convictions are necessary predicates to the imposition of a recidivist sentence under OCGA § 17–10–7(c), see Davis v. State, 319 Ga.App. 501, 504(2), 736 S.E.2d 160 (2012), as is timely notice that the State intends to assert such convictions in aggravation of sentence. See OCGA § 17–16–4(a)(5) (notice requirement for defendants who opt into statutory reciprocal discovery, formerly contained in OCGA § 17–10–2(a) for all defendants). Nevertheless, both this Court and our Court of Appeals have held that a defendant can waive a claim that the State did not give proper notice of prior convictions used in aggravation of sentence. See, e.g., Young v. State, 290 Ga. 392, 400(9), 721 S.E.2d 855 (2012); Hightower v. State, 287 Ga. 586, 594(10), 698 S.E.2d 312 (2010); Armstrong v. State, 264 Ga. 237, 239(3), 442 S.E.2d 759 (1994); Williams v. State, 301 Ga.App. 731,...