Williams v. State

• Citation: 523 S.E.2d 857,271 Ga. 686
• Decision Date: 15 November 1999
• Docket Number: No. S99A0892.,S99A0892.
• Parties: WILLIAMS v. The STATE.
• Court: Supreme Court of Georgia

523 S.E.2d 857

271 Ga. 686

WILLIAMS v. The STATE.

No. S99A0892.

Supreme Court of Georgia.

November 15, 1999.

Gibson Williams, pro se.

David McDade, District Attorney, for appellee.

SEARS, Justice.

After the Court of Appeals denied the application for discretionary appeal filed by the appellant, Gibson Williams, we granted Williams's petition for certiorari and application for discretionary review to consider whether a trial court's failure to conduct a presentence hearing under OCGA § 17-10-2(a) is an error which cannot be waived and cannot be harmless, and to consider whether a direct appeal lies from the denial of a motion in the sentencing court attacking a sentence on the ground that it was entered without a presentence hearing. For the reasons that follow, we conclude that a direct appeal does lie from the denial of a petition attacking a sentence based upon the allegation that it is void. Moreover, we conclude that the question whether a trial court's failure to hold a presentence hearing can be waived or held harmless only becomes an issue if the failure to hold a presentence hearing renders the defendant's sentence void. Because we also conclude that the failure to hold a presentence hearing in a non-death penalty case does not render a sentence void, we need not answer the question whether a trial court's failure to hold a presentence hearing is an error that cannot be waived and cannot be harmless.

In 1991, Williams was convicted of kidnapping with bodily injury, robbery by intimidation, possession of less than one ounce of marijuana, and criminal use of a gun with an altered identification number. After the guilty verdicts were returned by the jury, the trial court asked defense counsel if there was "anything from the defense in regard to sentencing?" Defense counsel responded that he would like to have the sentencing that day if possible. The trial court then asked whether defense wanted to request a presentence evaluation, and defense counsel responded that he did not. The trial court recessed the trial, and set the sentencing for 4:00 p.m. that same day. After the case was reconvened, the trial court asked defense counsel whether there was "anything you would like to advise the court prior to the imposition of sentence on your client?" Defense counsel responded that he had nothing to say, but that Williams might want to address the court. The court then asked defense counsel whether he had discussed the possibility of a presentence investigation with his client. Defense counsel stated that he had discussed the matter with his client

only briefly. I'm not sure he understands it, sir, but I have advised him and I told him that we didn't request one and he would be sentenced. I explained to him the mandatory nature of the first charge and that's been about the extent of our conversation. I'm not sure he absolutely understands the nature of presentences but I have advised him I think it's not probably going to be helpful for us in this situation and we should probably go ahead.

After this exchange, the court asked Williams if there was anything he wanted "to say to the court before sentence is imposed?" Williams responded that there was not. The court sentenced Williams to life for kidnapping, to twenty years consecutive for robbery, and to probated sentences of five years and twelve months for the other two offenses.

Williams appealed to the Court of Appeals, and that Court affirmed his conviction.¹ On appeal, Williams did not contend that the trial court erred in failing to conduct a presentence hearing pursuant to OCGA § 17-10-2(a). Instead, he contended that the evidence was insufficient to support his convictions and that he received ineffective assistance of trial counsel. As for the latter issue, Williams contended that trial counsel was ineffective for failing to present evidence at sentencing. The Court of Appeals ruled that this claim was without merit because Williams "was convicted of kidnapping with bodily injury and received the mandatory life sentence pursuant to OCGA § 16-5-40(b)."²

On July 18, 1998, Williams, proceeding pro se, filed a petition seeking to have the sentencing court correct what Williams alleged were void sentences. Relying on Jefferson v. State,³ Williams contended that his sentences were void because the sentencing court failed to conduct a presentence hearing pursuant to OCGA § 17-10-2. The sentencing court, however, denied Williams's petition, noting that Williams had appealed his conviction and sentence many years ago; that the "appellate opinion does not mention this particular sentencing issue"; and that "at this point in time, the court has no authority to modify the sentence." Williams then filed a discretionary appeal in the Court of Appeals. That court dismissed Williams's application by order, ruling that Williams's second appeal was not authorized. The court relied on Taylor v. State⁴ in dismissing the appeal, but failed to mention its decision in Jefferson v. State,⁵ in which the Court of Appeals permitted the defendant to have a direct appeal from the denial of his petition to correct what he alleged was a void sentence. In Jefferson, as in the present case, the defendant contended that his sentence was void due to the trial court's failure to hold a presentence hearing.

We subsequently granted Williams's petition for certiorari to consider (1) whether a trial court's failure to conduct a presentence hearing is an error which cannot be waived, even by the failure to raise it on an initial appeal, and cannot be harmless, and (2) whether a direct appeal lies from the denial of a motion in the sentencing court attacking a sentence on the ground that it was entered without a presentence hearing.

1. We first address the issue whether Williams had a right to file a direct appeal from the denial of his petition contending that his sentence was void because the trial court failed to hold the presentence hearing required by OCGA § 17-10-2. For the reasons that follow, we conclude that he did have a right of direct appeal.

Both this Court and the Court of Appeals have held that, when a sentence is void, a trial court has jurisdiction to resentence the defendant at any time.⁶ Both courts thus have entertained direct appeals from the denial of motions in the sentencing court attacking a sentence on the ground that it is void.⁷ The theory of these cases— that a sentencing court retains jurisdiction to correct a void sentence at any time—supports the conclusion that a direct appeal should lie from the denial of a motion attacking a sentence on the ground that it is void. In this regard, the sentencing court's ruling on a petition to correct a void sentence is similar to a trial court's ruling on a motion to set aside a judgment in a civil case under OCGA § 9-11-60. And, before subsection (a)(8) of OCGA § 5-6-35 was enacted, the denial of a motion to set aside a judgment was directly appealable.⁸ For the foregoing reasons, we now hold that the denial of a petition to correct a sentence on the ground that the original sentence was void is appealable as a matter of right. Williams thus had a right to directly appeal the trial court's order denying his motion to correct what he alleged were his void sentences, and the Court of Appeals erred in dismissing his application for discretionary appeal.⁹ To the extent that Taylor v. State¹⁰ is inconsistent with this opinion, it is overruled.

2. We turn now to the question whether a trial court's failure to conduct a presentence hearing is an error which cannot be waived and cannot be harmless. Because the case law discussed in Division 1 of this opinion establishes that the only ground for authorizing a trial court to correct a sentence at any time is that the sentence is void,¹¹ we conclude that the question whether a trial court's failure to hold a presentence hearing can be waived or held harmless only becomes an issue if the failure to hold a presentence hearing renders the defendant's sentence void.¹² Moreover, we also conclude that a trial court's failure to hold a presentence hearing in a non-death penalty case, such as the present one, does not render a sentence void. Accordingly, Williams's sentence was not void for the trial court's failure to hold a presentence hearing, and we thus need not answer the question whether a trial court's failure to hold a presentence hearing is an error that cannot be waived and cannot be harmless.

In Jefferson, the Court of Appeals correctly noted the rule that a trial court retains jurisdiction to correct a void sentence at any time.¹³ Relying on our decision in Sprouse v. State,¹⁴ the Court of Appeals then held that the failure to hold a presentence hearing could not be harmless and could not be waived by failing to object to the failure to hold the hearing.¹⁵ Because the trial court failed to hold such a hearing in Jefferson's case, the Court of Appeals reversed his sentence and remanded for resentencing in accordance with OCGA § 17-10-2. Thus, without specifically stating the proposition, the Court implicitly concluded that the failure to hold a presentence hearing rendered the sentence void.

We conclude that the Court of Appeals erred in Jefferson, as well as in other cases,¹⁶ by extending the rationale of Sprouse, a death penalty case, to hold that the failure to have a presentence hearing in a non-death penalty case renders a sentence void. In Sprouse, the defendant was sentenced to death without the benefit of a presentence hearing at which the defendant and the State could present evidence in aggravation, extenuation, and mitigation.¹⁷ Moreover, the jury apparently was not even required to designate the aggravated circumstance upon which it based the death penalty. We concluded that the failure to follow these procedures was neither harmless nor waived by failing to object. We therefore ordered the trial court to conduct a new...