Johnson v. State

1

DAVID L. JOHNSON v. THE STATE.

No. A25A0689

Court of Appeals of Georgia

November 27, 2024

The Court of Appeals hereby passes the following order:

In 1999, a jury found David Johnson guilty of rape, felony cruelty to children, and other offenses, and the trial court sentenced him as a recidivist to life in prison without the possibility of parole. We affirmed his convictions and sentences on appeal. Johnson v. State, 268 Ga.App. 1 (601 S.E.2d 392) (2004). Following a later appeal, the trial court entered an amended sentence in August 2009.

Johnson has filed a number of post-judgment motions in the trial court, as well as multiple appeals in this Court. See Johnson v. State, 281 Ga.App. 401 (636 S.E.2d 124) (2006) (affirming denial of motion to vacate a void sentence); Johnson v. State, Case No. A07A1591 (May 9, 2007) (dismissing appeal from denial of motion for an out-of-time appeal); Johnson v. State, Case No A12A1436 (May 9, 2012) (appeal from denial of motion in arrest of judgment, dismissed as frivolous); Johnson v State, 298 Ga.App. 639 (680 S.E.2d 675) (2009) (vacating sentence in part and otherwise affirming denial of motion to correct a void sentence); Johnson v. State, Case No A14A0935 (Feb. 7, 2014) (dismissing appeal from denial of another motion for an out-of-time appeal); Johnson v State, Case No. A15A2285 (Aug. 24, 2015) (dismissing appeal from denial of another motion to vacate a void sentence); Johnson v. State, Case No. A19D0166 (Nov 19, 2018) (denying application for discretionary review of denial of extraordinary motion for a new trial).

In August 2022, Johnson filed a "Petition to Correct Sentence," which he amended in July 2023. The trial court denied the petition in September 2024, and Johnson filed this direct appeal. We lack jurisdiction.

Under OCGA § 17-10-1 (f), a court may modify a sentence during the year after its imposition or within 120 days after remittitur following a direct appeal, whichever is later. Frazier v. State, 302 Ga.App. 346, 348 (691 S.E.2d 247) (2010). Once, as here, that statutory period expires, a trial court may modify only a void sentence. Id. "A sentence is void if the court imposes punishment that the law does not allow." Jones v. State, 278 Ga. 669, 670 (604 S.E.2d 483) (2004) (citation and punctuation omitted). When a sentence falls within the statutory range of punishment, it is not void and is not subject to modification beyond the time provided in OCGA § 17-10-1 (f). Id.; see von Thomas v. State, 293 Ga. 569, 572 (2) (748 S.E.2d 446) (2013) ("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."). And a direct appeal does not lie from a trial court order rejecting a request to modify a sentence filed outside the statutory time period unless the defendant raises a colorable claim that the sentence is, in fact, void. See Frazier, 302 Ga.App. at 348.

In his Petition to Correct Sentence, as amended, Johnson argued that: (i) the trial court erred by failing to merge two of his convictions; (ii) under the rule of lenity, the trial court should have imposed a misdemeanor sentence for his cruelty to children conviction; (iii) under a 2023 amendment to OCGA § 17-10-7 (a), the trial court must consider probating or suspending portions of his sentences; and (iv) because the State sought to sentence him as a recidivist, he was subject to a maximum sentence of 20 years in prison.

Johnson's merger claim is a challenge to his convictions, not his sentences, and thus does not state a valid void-sentence claim. See Williams v. State, 287 Ga. 192, 193-194 (695 S.E.2d 244) (2010). To the extent that Johnson's petition could be construed as seeking to vacate or modify his convictions, "a petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case," Harper v. State, 286 Ga. 216, 218 (1) (686 S.E.2d 786) (2009), and any appeal from an order denying or dismissing such a motion must be dismissed, see id. at 218 (2); see also Roberts v. State, 286 Ga. 532, 532 (690 S.E.2d 150) (2010).

Johnson's arguments regarding the rule of lenity and OCGA § 17-10-7 (a) have no bearing on whether his sentences fall within the statutory ranges of punishments for the offenses of which he was convicted and therefore also do not state colorable void-sentence claims. See von Thomas, 293 Ga. at 572 (2); Jones, 278 Ga. at 670; Frazier, 302 Ga.App. at 348.

Finally Johnson's contention that he was subject to a maximum sentence of 20 years in prison is misplaced. This claim implicates only his rape conviction - for which the trial court imposed a sentence of life in prison without the possibility of parole - as the court imposed sentences of no more than 20 years for his remaining convictions. Johnson committed the acts underlying his rape conviction in February 1999. The statute criminalizing rape in effect at that time provided that "[a] person convicted of the offense of rape shall be punished by death, by imprisonment for life, or by imprisonment for not less than ten nor more than 20 years." OCGA § 16-6-1 (b) (1997); see Reed v. State, 352 Ga.App. 30, 31, n. 1 (833 S.E.2d 712) (2019) (a criminal defendant must be sentenced according to...