Caldwell v. State

355 Ga.App. 608

845 S.E.2d 345

CALDWELL

v.The STATE.

A20A0747

Court of Appeals of Georgia.

June 18, 2020

Lauren Beth Shubow, Sarah Scott Danowitz, for Appellant.

Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Juliana Y. Sleeper, Marshal M. Hodge, Assistant District Attorneys, for appellee.

Miller, Presiding Judge.

Frederic Caldwell pled guilty to several offenses in two separate cases. In case number 19SC167808, the trial court sentenced Caldwell as a recidivist and imposed a total sentence of thirty-five years, with the first twenty years to be served in prison, ten years to be served on probation, and a separate five-year suspended prison sentence.¹ Caldwell appeals from this sentence, arguing that the trial court erred by sentencing him as a recidivist because he had already begun to serve the trial court's previous oral sentence which did not impose a recidivist sentence, and therefore the trial court impermissibly increased the prior oral sentence by imposing a recidivist sentence. For the reasons that follow, we reverse.

In the context of a criminal conviction, a sentence is void if the court imposes punishment that the law does not allow. And 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. Importantly, whether a defendant was properly sentenced as a recidivist under OCGA § 17-10-7 is subject to de novo review.

(Citation and punctuation omitted.) Nordahl v. State , 344 Ga. App. 686, 688, 811 S.E.2d 465 (2018).

The record shows that a Fulton County grand jury rendered two separate indictments against Caldwell for various offenses involving Tiyonna Porter, his former girlfriend. According to the State's factual proffer in case number 19SC168326, on April 28, 2019, officers from the Atlanta Police Department were dispatched to Porter's home. Porter informed law enforcement that, after waking up, she discovered that the power in her apartment had been turned off. After Porter went outside to turn the power back on, Caldwell drove into her parking lot, and she had to "jump out of the way" to avoid being hit by Caldwell's vehicle. Caldwell then exited his vehicle, approached Porter, struck her repeatedly, and dragged her across the pavement. Caldwell also took Porter's cell phone, "smashed" it on the ground, and broke it. Porter escaped and ran into her apartment. In case number 19SC167808, on May 3, 2019, Porter and her infant daughter were traveling in a Lyft vehicle on the way back to her home, when she noticed that Caldwell was following them. Porter advised the Lyft driver not to stop at her apartment, and she called 911 to report that Caldwell was following her. Caldwell then pulled in front of the Lyft vehicle and blocked it from moving. Caldwell exited his vehicle, approached the Lyft vehicle, opened a door, and shot Porter multiple times as she sat in the back seat with her daughter. In case number 19SC168326, Caldwell was charged with aggravated assault with a deadly weapon (family violence) ( OCGA § 16-5-21 ), aggravated assault — vehicle into person (family violence) ( OCGA § 16-5-21 ), possession of a firearm during the commission of a felony ( OCGA § 16-11-106 ), criminal damage to property in the second degree ( OCGA § 16-7-23 ), battery (family violence) ( OCGA § 16-5-23.1 (f) (1) ), and possession of a firearm by a convicted felon ( OCGA § 16-11-131 (b) ). In indictment number 19SC167808, Caldwell was charged with aggravated assault ( OCGA § 16-5-21 ), aggravated assault with a deadly weapon ( OCGA § 16-5-21 ), aggravated battery ( OCGA § 16-5-24 ), criminal damage to property in the first degree ( OCGA § 16-7-22 ), possession of a firearm during the commission of a felony ( OCGA § 16-11-106 ), cruelty to children in the third degree ( OCGA § 16-5-70 ), reckless conduct ( OCGA § 16-5-60 (b) ), and possession of a firearm by a convicted felon ( OCGA § 16-11-131 (b) ).

The State subsequently filed its notice of intent to seek a recidivist sentence pursuant to OCGA § 17-10-7 in both cases. Caldwell later entered a non-negotiated guilty plea to all of the offenses in both cases.² Following a hearing, the trial court adopted the State's recommendation and orally sentenced Caldwell to twenty years in prison, followed by ten years probation and a five-year suspended sentence for case number 19SC167808. The trial court did not impose a recidivist sentence, nor did it execute a sentencing sheet denoting that Caldwell was sentenced as a recidivist at that time.

The trial court held another hearing five days later. Caldwell objected to being sentenced as a recidivist and argued that the trial court would improperly increase the oral sentence because he had already begun to serve that sentence. The trial court admitted the copies of Caldwell's prior convictions into evidence and sentenced Caldwell as a recidivist pursuant to OCGA § 17-10-7 (a) and (c) in case number 19SC167808. This appeal followed.

In his sole enumeration of error, Caldwell argues that the trial court improperly increased his sentence by imposing a recidivist sentence under OCGA § 17-10-7. Specifically, Caldwell argues that his punishment was improperly increased because the sentence made him ineligible for parole under OCGA § 17-10-7 (c),³ and that he had already begun to serve the trial court's prior oral sentence. We agree.

In general, "[a]n oral declaration as to what the sentence shall be is not the sentence of the court; the sentence signed by the judge is." (Citation and punctuation omitted.) Ivey v. State , 278 Ga. App. 463, 464 (1), 629 S.E.2d 127 (2006). Still, Caldwell is correct that "[an] oral declaration of [a] sentence may not be increased after the defendant has begun to serve it." (Citation and punctuation omitted.) Id. Indeed, this Court has stated that

[j]udgments of a court are within its breast until the end of the term, and the sentence may be amended at any time during the term and before execution has begun. However, once a person has entered upon the execution of his sentence, the court is without power to change it by increasing the punishment. This is considered a violation of the Fifth Amendment prohibition against double punishment or jeopardy.

(Citations and punctuation omitted.) Fowler v. State , 188 Ga. App. 873, 875 (7), 374 S.E.2d 805 (1988). This Court has noted that a defendant has begun to serve a sentence where there is evidence that the defendant met with a probation officer, filled out probation paperwork, or paid a fine. Ivey , supra, 278 Ga. App. at 464 (1), 629 S.E.2d 127.

Here, the record shows that the trial court first orally sentenced Caldwell to twenty years in prison, followed by ten years probation and a five-year suspended sentence in case number 19SC167808. At the second hearing, a probation officer testified that she had already met with Caldwell after the trial...