Bryant v. State

363 Ga.App. 349

870 S.E.2d 33

BRYANT

v.The STATE.

A21A1377

Court of Appeals of Georgia.

February 18, 2022

Reconsideration Denied March 16, 2022

Certiorari Denied May 17, 2022

Jamez Antwane Bryant, for Appellant.

Timothy Michael Marlow, John Herbert Cranford Jr., Newnan, for Appellee.

Pipkin, Judge.

Jamez Antwane Bryant appeals from the trial court's order entered on January 7, 2021, denying his motion to vacate a void sentence.¹ As more fully set forth below, we vacate in part and remand for resentencing.

The record shows that Bryant entered an Alford² plea to two counts of enticing a child for indecent purposes; on October 25, 2018, the trial court sentenced Bryant on each count to thirty years, twenty to serve in confinement and the remainder on probation, to run concurrently. In the months following his conviction and sentencing, Bryant filed multiple pro se motions, including motions to withdraw his plea, a motion in arrest of judgment, motions to vacate or modify his sentence, and motions for an out-of-time appeal. On April 26, 2019, the trial court entered a consolidated order denying Bryant's motions, and Bryant filed an untimely notice of appeal from that order. That case was docketed in this Court as Case No. A20A0052, and on August 5, 2019, we dismissed Bryant's appeal for lack of jurisdiction. See OCGA § 5-6-38 (a) ; Rowland v. State , 264 Ga. 872, 872 (1), 452 S.E.2d 756 (1995) ("The proper and timely filing of a notice of appeal is an absolute requirement to confer appellate jurisdiction on this Court.") (citation and punctuation omitted).

Back in the trial court, Bryant continued to file multiple pro se motions, including another motion for an out-of-time appeal, and the trial court denied his motion on July 11, 2019. Bryant appealed to this Court, and his appeal was docketed in this Court as Case No. A20A0147. However, based on principles of res judicata, we concluded Bryant's appeal was barred by our previous dismissal of his appeal in Case No. A20A0052, and we once again dismissed his appeal.

Bryant, however, continued to file motions in the trial court, and on October 5, 2020, almost two years after he entered his Alford plea, Bryant filed a motion to vacate a void sentence and another motion to withdraw his Alford plea. The trial court denied his motions, and Bryant filed this appeal.³ On appeal, Bryant argues that the trial court erred by denying his motion to vacate his sentence because the trial court imposed an illegal condition of probation; additionally, although not raised in the motion that is the subject of this appeal, Bryant also argues that the requirement that he register as a sexual offender results in a sentence that exceeds the maximum punishment allowed for the convicted offenses. Additionally, Bryant has twice moved to amend his brief on appeal; in his first motion to amend, his raises a merger issue and in his second motion to amend, he contends that the trial court's failure to consider his eligibility for a sentence below the minimum results in a void sentence. As more fully set forth below, we now vacate the no-contact provision of his probated sentence but find his other contentions unavailing.

1. We first inquire into our jurisdiction to consider this appeal. The State argues that we should also dismiss Bryant's appeal from the January 7, 2021, order because Bryant previously filed motions to vacate or modify his sentence and his appeals following the denial of his previous motions were dismissed. The resolution of this issue turns on whether Bryant has in fact raised a colorable claim of a void sentence that was not raised in his prior motions.

When a sentencing court imposes a sentence of imprisonment, its jurisdiction to later modify or vacate the sentence is limited. The sentencing court generally has jurisdiction to modify or vacate such a sentence for only one year following the imposition of the sentence. OCGA § 17-10-1 (f). See also von Thomas v. State , 293 Ga. 569, 571 (2), 748 S.E.2d 446 (2013). However, "a sentencing court retains jurisdiction to correct a void sentence at any time." (Citation and punctuation omitted.) Rutledge v. State , 360 Ga. App. 824, 830 (2), 861 S.E.2d 793 (2021). See also von Thomas , 293 Ga. at 569, 572 (2), 748 S.E.2d 446 ; Rooney v. State , 287 Ga. 1, 2 (2), 690 S.E.2d 804 (2010). "A sentence is void if the court imposes punishment that the law does not allow." (Citation and punctuation omitted.) von Thomas , 293 Ga. at 571 (2), 748 S.E.2d 446. State v. McCauley , 353 Ga. App. 94, 98 n.3, 834 S.E.2d 567 (2019) ; Harrison v. State , 201 Ga. App. 577, 583 (5), 411 S.E.2d 738 (1991) ("A sentence or portion thereof that is unauthorized by law is a nullity and void."). "This is true even for defendants who plead guilty because a defendant who knowingly enters into a plea agreement does not waive the right to challenge an illegal and void sentence." (Citation and punctuation omitted.) Rutledge , 360 Ga. App. at 830 (2), 861 S.E.2d 793.

Thus, in cases where the trial court has lost jurisdiction to vacate or modify a sentence, a direct appeal from the denial of a motion to vacate a void sentence is authorized only when the defendant has raised a colorable claim that his sentence is, in fact, void. Munye v. State , 342 Ga. App. 680, 685 (1) (b), 803 S.E.2d 775 (2017) ; see also Jones v. State , 278 Ga. 669, 671, 604 S.E.2d 483 (2004) ("Rulings on pleadings asserting erroneous procedure or unfair treatment are not subject to direct appeal because they are not rulings on whether the sentence is void."). "Hence, if a defendant does not raise a colorable void-sentence claim, his appeal is subject to dismissal." Munye , 342 Ga. App. at 685 (1) (b), 803 S.E.2d 775.

Notwithstanding that a void sentence may be challenged at any time and a direct appeal from the denial of a motion raising a colorable claim of void sentence is authorized, these principles are "subject to the equally well established principles of res judicata and the law-of-the-case rule once the issue has been raised and ruled upon." (Citation and punctuation omitted.) Paradise v. State , 321 Ga. App. 371, 373, 740 S.E.2d 238 (2013). See also Ross v. State , 310 Ga. App. 326, 328, 713 S.E.2d 438 (2011) (while a void sentence is a nullity and may be vacated at any time, it is still subject to res judicata and law-of-the-case rule; defendant is not entitled to multiple bites at the apple).

The State asserts that these principles apply here and that Bryant's appeal should be dismissed, arguing that "this issue has already had its day in court previously." In support of its argument, the State points to Bryant's motion to modify his sentence filed on March 1, 2019, and his motion to vacate and set aside void conviction and sentence filed on May 5, 2019, as well as to the dismissal of his appeals following the trial court's denial of those motions. However, a review of these motions, as well as other motions Bryant filed seeking to modify his sentence or purporting to attack his sentence as void, shows that Bryant has not previously raised the issue set out in his October 5, 2020 void sentence challenge which is the subject of this appeal – that a condition of his probation is illegal and void – and that such motion, for the first time, raised a colorable claim that at least a portion of Bryant's sentence is void. Sumner v. State , 284 Ga. App. 308, 312 (1), 643 S.E.2d 831 (2007) ([W]here a condition of probation in a sentence is unauthorized, that portion of the sentence is void.") (citation and punctuation omitted). Accordingly, to the extent that Bryant has raised a colorable claim of a void sentence, his appeal is properly before us as to that issue and is not subject to dismissal.

2. Turning to the merits, we first consider Bryant's contention that the no-contact provision imposed as a special condition of probation is overly broad and lacks specificity.⁴ We agree.

A trial court has broad discretion in sentencing to impose conditions reasonably related to the nature and circumstances of the offense and rehabilitative goals of probation. But such conditions must be stated with reasonable specificity to afford the probationer notice of the groups and places he must avoid. And the conditions must not be so broadly worded as to encompass groups and places not rationally related to the purpose of the sentencing objective.

(Citation and punctuation omitted.) Grovenstein v. State , 282 Ga. App. 109, 111 (1), 637 S.E.2d 821 (2006).

The record shows the trial court imposed the following special condition of probation, which prohibited Bryant from having contact with minors:

You shall have no contact, whether directly in person or indirectly, through any means of communication, with any child under the age of eighteen (18), nor with any person unable to give consent because of mental or emotional limitations. Neither shall you attempt contact with the aforementioned except under circumstances approved in advance and in writing by the Court. If you have incidental contact with children, you will be civil and courteous to the child and immediately remove yourself from the situation. You will discuss the contact at your next meeting with your Probation Officer.

This Court has previously rejected similar special conditions of probation. As we explained in Ellis v. State , 221 Ga. App. 103, 104 (1), 470 S.E.2d 495 (1996), a case also involving a sex offense against a child, while

it was reasonable for the trial court to regulate [defendant's] contact with children by imposing conditions prohibiting his association with groups dealing with children and prohibiting his presence at certain locations where children are present, ... such conditions should be stated with reasonable specificity so that [defendant] has notice of the groups and locations he must avoid and so that the conditions are not so broadly worded as to encompass groups and locations not rationally related to the purpose of the

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