FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
November 6, 2015
In the Court of Appeals of Georgia
A15A2113. RICHARDSON v. THE STATE.
BARNES, Presiding Judge.
This is the second appearance of this case before this Court. In the first appeal,
we affirmed Corey D. Richardson’s conviction of aggravated child molestation but
vacated his sentence and remanded for resentencing. See Richardson v. State, 325 Ga.
App. XXVI (Feb. 18, 2014) (unpublished). After the trial court resentenced him,
Richardson filed a pro se “Motion to Correct an Illegal and/or Void Sentence,” which
the trial court denied, resulting in the present appeal. Richardson contends that the
sentence imposed on remand is illegal and/or void as a matter of law because (1) the
trial court failed to consider the provisions of OCGA § 17-10-6.2 that address split-
sentences and deviations from the mandatory minimum sentence for sexual offenses;
(2) the trial court imposed a sentence that is cruel and unusual under the Eighth
Amendment to the United States Constitution; and (3) the trial court was not the
proper venue for the prosecution and lacked jurisdiction in the case. For the reasons
discussed below, we affirm.
The record reflects that in September 2008, Richardson was indicted for
committing an alleged act of aggravated child molestation between January 1, 2001
and January 31, 2003.1 In December 2008, Richardson was tried before a jury,
convicted, and sentenced for the indicted crime. The trial court imposed a life
sentence, requiring Richardson to serve 25 years in prison with the remainder on
probation. The life sentence was predicated on OCGA § 16-6-4 (2006) (Ga. L. 2006,
p. 379, §11),2 the version of the aggravated child molestation statute in effect when
Richardson was sentenced.
Richardson appealed his conviction and sentence on several grounds, including
that the trial court had sentenced him under the wrong version of the aggravated child
1
Richardson was indicted on two additional counts of aggravated child
molestation but was acquitted on those charges.
2
OCGA § 16-6-4 (d) (1) (2006) provided in relevant part:
[A] person convicted of the offense of aggravated child molestation
shall be punished by imprisonment for life or by a split sentence that is
a term of imprisonment for not less than 25 years and not exceeding life
imprisonment, followed by probation for life, and shall be subject to the
sentencing and punishment provisions of Code Sections 17-10-6.1
[punishment for a “serious violent felony”] and 17-10-7 [recidivists].
2
molestation statute. In an unpublished opinion, this Court affirmed Richardson’s
conviction, but vacated his sentence and remanded for resentencing under OCGA §
16-6-4 (d) (1) (2005) (Ga. L. 1997, p.1578, § 1),3 the version of the statute in effect
when the crime was committed. See Richardson, 325 Ga. App. XXVI.
On remand, the trial court resentenced Richardson to 20 years in prison.
Proceeding pro se, Richardson thereafter filed his “Motion to Correct an Illegal
and/or Void Sentence.” The trial court denied Richardson’s motion, and this appeal
followed.
The General Assembly has established a specific time frame
during which a trial court has jurisdiction to freely modify a criminal
sentence. Pursuant to OCGA § 17-10-1 (f), a court may correct or reduce
a sentence during the year after its imposition, or within 120 days after
remittitur following a direct appeal, whichever is later. Once this
statutory period expires, a trial court may only modify a void sentence.
3
OCGA § 16-6-4 (d) (1) (2005) provided in relevant part:
A person convicted of aggravated child molestation shall be punished
by imprisonment for not less than ten nor more than 30 years. Any
person convicted under this Code section of the offense of aggravated
child molestation shall, in addition, be subject to the sentencing and
punishment provisions of Code Sections 17-10-6.1 and 17-10-7.
3
Frazier v. State, 302 Ga. App. 346, 347-348 (691 SE2d 247) (2010). See OCGA § 17-
10-1 (f);4 Mack v. State, 323 Ga. App. 821, 822 (748 SE2d 299) (2013).
Richardson filed his motion to correct his sentence within one year of being
resentenced, and, therefore, his motion was filed within the statutory period
prescribed by OCGA § 17-10-1 (f). Whether to grant a motion to correct a sentence
under OCGA § 17-10-1 (f) lies within the discretion of the trial court. Davis v. State,
291 Ga. App. 252, 253 (661 SE2d 872) (2008). So long as the sentence imposed by
the court falls within the parameters prescribed by law, we will not disturb it. See
Jackson v. State, 238 Ga. App. 559, 560 (2) (520 SE2d 11) (1999); Holland v. State,
232 Ga. App. 284, 285 (2) (501 SE2d 829) (1998). Mindful of these principles, we
turn to Richardson’s specific allegations of error.
1. In two related enumerations of error, Richardson contends that his 20-year
sentence is illegal and void because the trial court failed to take into account the
punishment provisions for sexual offenses imposed by OCGA § 17-10-6.2 when
4
OCGA § 17-10-1 (f) provides in relevant part:
Within one year of the date upon which the sentence is imposed, or
within 120 days after receipt by the sentencing court of the remittitur
upon affirmance of the judgment after direct appeal, whichever is later,
the court imposing the sentence has the jurisdiction, power, and
authority to correct or reduce the sentence and to suspend or probate all
or any part of the sentence imposed.
4
resentencing him on remand. According to Richardson, the trial court should have
probated a portion of his sentence in accordance with OCGA § 17-10-6.2 (b)5 and
should have exercised its discretion to deviate from the mandatory minimum sentence
pursuant to OCGA § 17-10-6.2 (c).6 Pretermitting whether aggravated child
molestation is a sexual offense to which the punishment provisions of OCGA § 17-
10-6.2 apply,7 we conclude that the trial court did not err in its resentencing of
Richardson under the circumstances here.
5
OCGA § 17-10-6.2 (b) provides in relevant part:
Except as provided in subsection (c) of this Code section, and
notwithstanding any other provisions of law to the contrary, any person
convicted of a sexual offense shall be sentenced to a split sentence
which shall include the minimum term of imprisonment specified in the
Code section applicable to the offense. No portion of the mandatory
minimum sentence imposed shall be suspended, stayed, probated,
deferred, or withheld by the sentencing court and such sentence shall
include, in addition to the mandatory imprisonment, an additional
probated sentence of at least one year. . . .
6
OCGA § 17-10-6.2 (c) (1) provides:
In the court’s discretion, the court may deviate from the mandatory
minimum sentence as set forth in subsection (b) of this Code section, or
any portion thereof, when the prosecuting attorney and the defendant
have agreed to a sentence that is below such mandatory minimum or
provided that [six additional statutory criteria are met].
7
See OCGA § 17-10-6.2 (a) (defining “sexual offense”).
5
“A crime must be construed and punished according to the provisions of the
law existing at the time of its commission.” (Citation omitted.) Riley v. State, 243 Ga.
App. 697, 698 (534 SE2d 437) (2000). See Widner v. State, 280 Ga. 675, 677 (2) (631
SE2d 675) (2006). OCGA § 17-10-6.2 was first enacted in 2006 as part of the same
legislation in which the General Assembly modified the punishment provisions
related to aggravated child molestation and other sexual crimes. See Ga. L. 2006, p.
379, § 21. Because OCGA § 17-10-6.2 was not in effect when Richardson committed
the charged crime, the trial court committed no error in failing to apply its provisions
when resentencing Richardson. See Widner, 280 Ga. at 677 (2); Riley, 243 Ga. App.
at 698.
2. Richardson also contends that his 20-year sentence for aggravated child
molestation is illegal and void because it violates the Eighth Amendment prohibition
against cruel and unusual punishment. Relying upon the United States Supreme
Court’s decisions in Roper v. Simmons, 543 U.S. 551 (125 SCt. 1183, 161 LE2d 1)
(2005); Graham v. Florida, 560 U.S. 48 (130 SCt. 2011, 176 LE2d 825) (2010); and
Miller v. Alabama, __ U.S. __ (132 SCt. 2455, 183 LE2d 407) (2012), Richardson
contends that his sentence was cruel and unusual because he was a juvenile when he
committed the charged offense. We disagree.
6
In Roper, the Supreme Court held that the Eighth Amendment prohibits capital
punishment for juvenile offenders. 543 U.S. at 568 (III) (B). In Graham, the Supreme
Court held that a sentence of life without the possibility of parole violates the Eighth
Amendment when imposed on juvenile offenders who did not commit homicide. 560
U.S. at 82 (III) (D). In Miller, the Supreme Court extended its ruling in Graham and
held that “the Eighth Amendment forbids a sentencing scheme that mandates life in
prison without possibility of parole for juvenile offenders.” 132 SCt. at 2469 (II). The
Supreme Court in Miller reasoned that “children are constitutionally different from
adults for purposes of sentencing. Because juveniles have diminished culpability and
greater prospects for reform . . . they are less deserving of the most severe
punishments.” (Citation and punctuation omitted; emphasis supplied.) Id. at 2464 (II).
The sentence imposed upon Richardson on remand is distinguishable from the
sentences imposed in Roper, Graham, and Miller. In those cases, the Supreme Court
was concerned with the imposition upon juvenile offenders of the “most severe
punishments” available under the law, namely, the death penalty and life
imprisonment without the possibility of parole. Richardson, however, was not subject
to one of the “most severe punishments” allowed by law, but rather to a sentence of
a definite term of years. Richardson’s constitutional challenge to his sentence
7
predicated on Roper, Graham, and Miller thus is misplaced. See Adams v. State, 288
Ga. 695, 701 (4) (707 SE2d 359) (2011); In the Interest of T. D. J., 325 Ga. App. 786,
789 (2) (a) (755 SE2d 29) (2014); Middleton v. State, 313 Ga. App. 193, 194-195
(721 SE2d 111) (2011).
3. Lastly, Richardson contends that “venue was not proven beyond a reasonable
doubt” and that the trial court “did not have personal or subject matter jurisdiction in
this case.” But the authority granted to a trial court to correct a sentence pursuant to
OCGA § 17-10-1 (f) “does not, on its face, include the power to vacate the conviction
on which the sentence is based.” Ellison v. State, 283 Ga. 461 (660 SE2d 373) (2008).
And a challenge to venue and to the trial court’s jurisdiction to hear the case is a
challenge to the defendant’s underlying conviction rather than to the defendant’s
sentence. See Harper v. State, 286 Ga. 216 (686 SE2d 786) (2009) (defendant’s claim
that trial court “lacked jurisdiction to hear his case” was challenge to his conviction
rather than his sentence); Spargo v. State, 332 Ga. App. 410, 411, n. 2 (773 SE2d 35)
(2015) (noting that “[a] motion to vacate void judgment on the basis that the
judgment was imposed by a court that was not the proper venue for the prosecution
was a challenge to the defendant’s conviction, not his sentence”) (citation omitted);
Matherlee v. State, 303 Ga. App. 765, 766, n. 3 (694 SE2d 665) (2010) (defendant’s
8
claim that trial court’s judgment was void for lack of subject matter jurisdiction was
challenge to conviction rather than sentence). Consequently, Richardson’s motion to
correct his sentence was not the proper procedural vehicle for asserting his claims
regarding venue and jurisdiction.8
Judgment affirmed. Ray and McMillian, JJ., concur.
8
“[A] claim that a conviction was unlawful must be asserted by a motion for
new trial, direct appeal from the judgment of conviction, extraordinary motion for
new trial, motion in arrest of judgment, or petition for the writ of habeas corpus.”
von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013).
9