Jackson v. Crickmar

311 Ga. 870

860 S.E.2d 709

JACKSON

v.CRICKMAR.

S21A0286

Supreme Court of Georgia.

Decided: June 21, 2021

Leigh Ann Webster, Strickland Webster, LLC, 830 Glenwood Ave SE, Suite 510 #203, Atlanta, Georgia 30316, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Ashleigh Dene Headrick, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellee.

Boggs, Justice.

After a 2010 jury trial in Douglas County Superior Court, the trial court entered judgments of conviction against Bilal Jackson for aggravated assault, aggravated battery, attempted armed robbery, attempted murder, and possession of a firearm during the commission of a felony in connection with the shooting of Darryl Claro in 2007, when Jackson was 15 years old. The trial court sentenced Jackson to serve a total of 55 years in prison. Jackson appealed, and the Court of Appeals affirmed in an unpublished opinion. See Jackson v. State , 326 Ga. App. XXVI (Case No. A13A2317) (March 28, 2014).

Jackson later filed a petition for habeas corpus in Chattooga County Superior Court (the "habeas court"), which the habeas court denied after a hearing. We granted Jackson's application for a certificate of probable cause to appeal to consider two issues: (1) whether alleged merger errors in sentencing may be raised for the first time in a habeas corpus proceeding or instead must be raised as part of a claim of ineffective assistance of appellate counsel; and (2) whether Jackson's convictions for aggravated assault, aggravated battery, and attempted armed robbery merge into his conviction for attempted murder.

We conclude that merger claims may be raised for the first time in habeas and are not procedurally barred by a habeas petitioner's failure to raise them earlier in his criminal case. We also conclude that the habeas court erred in rejecting Jackson's claim that his convictions for aggravated assault and aggravated battery merge into his conviction for attempted murder but did not err in rejecting his claim that his conviction for attempted armed robbery merged into his conviction for attempted murder. Accordingly, we affirm the habeas court's judgment in part and reverse it in part, and we remand the case to the habeas court with direction to vacate Jackson's convictions and sentences for aggravated assault and aggravated battery.

1. On direct appeal, the Court of Appeals determined that the evidence presented at trial showed as follows:

Jackson and Derek Baugh were good friends. On October 24, 2007, Baugh picked up Jackson and drove him to a house in Darryl Claro's neighborhood to visit a friend. During the visit, Jackson became upset, obtained a gun from his friend, and walked down the street. Baugh entered his vehicle and followed Jackson. Baugh caught up with Jackson, and Jackson entered Baugh's vehicle. As Baugh spoke with Jackson, Jackson suddenly exited the vehicle and began walking away.

Just before 11:00 p.m., as Claro was driving into his subdivision, he encountered Jackson standing in the roadway. As Claro veered to the right of Jackson to drive around him, Jackson began shooting at Claro's vehicle, firing multiple shots at the vehicle as it approached and then passed him. One bullet struck Claro; the bullet entered his back and exited his body underneath his armpit. Claro suffered a collapsed lung, a cracked rib, and scarring.

Jackson , Case No. A13A2317, slip op. at 2. Evidence was also presented at trial that Jackson intended to rob Claro. See id. at 4 n.3.

On October 26, 2007, Jackson was taken into custody, and a complaint was filed in the Douglas County Juvenile Court (the "juvenile court"). On November 1, 2007, the State filed a petition alleging delinquency that charged Jackson with aggravated assault, aggravated battery, participation in criminal street gang activity, criminal damage to property in the second degree, and possession of a firearm during the commission of a felony. On November 2, 2007, the State filed a motion to transfer the case to the superior court, the juvenile court held a hearing, and on February 8, 2008, the juvenile court transferred the case to the superior court (the "trial court").¹

On February 29, 2008, a Douglas County grand jury indicted Jackson for aggravated assault, two counts of aggravated battery, attempted murder, two counts of participation in criminal street gang activity, and possession of a firearm during the commission of a felony. On June 5, 2009, a grand jury returned a second indictment charging Jackson with aggravated assault, three counts of aggravated battery, attempted murder, attempted armed robbery, hijacking a motor vehicle, and possession of a firearm during the commission of a felony. At a May 2010 trial, the jury acquitted Jackson of hijacking a motor vehicle but found him guilty of all other charges in the second indictment, and on June 2, 2010, the trial court entered an order of nolle prosequi on the first indictment.

On June 9, 2010, the trial court held a sentencing hearing. The State conceded that the three counts of aggravated battery should be merged into one for purposes of sentencing but asserted that none of those counts merged into the attempted murder count. The State argued that testimony at trial showed that Jackson fired four shots that hit Claro's car and that only the second shot struck Claro, such that the first shot was the basis for the aggravated assault count, the second shot was the basis for the aggravated battery counts, and the third and fourth shots were the basis for the attempted murder count. In response, Jackson argued that the aggravated assault count, the aggravated battery counts, and the attempted armed robbery count all merged into the attempted murder count.

The trial court agreed with the State, merged the three counts of aggravated battery into one, and sentenced Jackson to serve 30 years in prison for attempted murder, 30 years for attempted armed robbery, 20 years for aggravated battery, 20 years for aggravated assault, and five years for possession of a firearm during the commission of a felony. The court specified that the 30-year terms for attempted murder and attempted armed robbery would run concurrently with each other; that the 20-year terms for aggravated assault and aggravated battery would run concurrently with each other but consecutively to the concurrent 30-year terms; and that the five-year term would run consecutively to all other terms, for a total sentence of 55 years to be served in prison with credit for time served since October 26, 2007.

Jackson filed a motion for new trial with new counsel, arguing that the evidence was insufficient to support the aggravated battery count based on cracking Claro's rib, which the trial court had merged for sentencing purposes; that his trial counsel was constitutionally ineffective in questioning a police officer about Jackson's post-arrest silence; and that his trial counsel was constitutionally ineffective in soliciting bad character evidence about Jackson. The trial court denied the motion. Jackson appealed, raising the same three claims on direct appeal. On March 28, 2014, the Court of Appeals affirmed in an unpublished opinion. See Jackson , Case No. A13A2317.

On March 25, 2015, Jackson filed a petition for habeas corpus with new counsel, although he later elected to proceed pro se. At a hearing on July 25, 2018, Jackson argued, among other things, that the trial court lacked jurisdiction to try him, because the indictment on which he was tried was not issued within 180 days of the date of his detention and the State did not request or receive an extension, so OCGA § 17-7-50.1 required the trial court to transfer his case back to the juvenile court. Jackson also argued that his convictions for aggravated assault, aggravated battery, and attempted armed robbery merged into his conviction for attempted murder. Jackson argued further that his appellate counsel (who also represented Jackson at the motion for new trial stage) was constitutionally ineffective in failing to raise these merger claims and the jurisdictional argument based on OCGA § 17-7-50.1. On November 27, 2019, the habeas court entered a final order denying relief.

Jackson timely filed a notice of appeal and an application for a certificate of probable cause to appeal, which this Court granted to consider whether merger claims may be raised for the first time in habeas and whether the habeas court erred in rejecting Jackson's merger claims.² The case was orally argued on March 25, 2021.

2. We turn first...