Parham v. the State

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, 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

September 8, 2017

In the Court of Appeals of Georgia
A17A1663. PARHAM v. THE STATE.

BARNES, Presiding Judge.

A jury found Charles Frank Parham guilty of two counts of theft by deception,

and the trial court sentenced him as a recidivist under OCGA § 17-10-7 (a) and (c)

based on his prior felony convictions. The trial court thereafter denied Parham’s

motion for a new trial, as amended. On appeal, Parham argues that the trial court

erred in sentencing him under the general recidivist statute, OCGA § 17-10-7 (a) and

(c), because only the more specific recidivist provision for theft-by-deception

convictions, OCGA § 16-8-12 (a) (1) (D), applied in this case. Parham also argues

that his trial counsel rendered ineffective assistance by failing to object to the trial

court sentencing him under the general recidivist statute. For the reasons discussed

more fully below, we conclude that the trial court was authorized to sentence Parham

under the general recidivist statute and therefore affirm.
 The record reflects that Parham was indicted on two counts of theft by

deception in violation of OCGA § 16-8-3 (a). The indictment alleged that Parham had

two prior misdemeanor convictions for theft by deception, such that Parham was

eligible for felony punishment under the specific recidivist provision applicable to

certain theft offenses, OCGA § 16-8-12 (a) (1) (D). Before trial, the State also served

Parham with notice of its intent to seek to punish him as a habitual felon under the

general recidivist statute, OCGA § 17-10-7 (a) and (c), based on his prior convictions

for several felony offenses.

Parham proceeded to trial and was found guilty on both counts of theft by

deception. At the sentencing hearing, the State introduced evidence of Parham’s 27

prior convictions for various offenses, including the two prior misdemeanor

convictions for theft by deception referenced in the indictment, five prior felony

convictions for theft by shoplifting, and a prior felony conviction for financial

transaction card fraud. The trial court elected to treat Parham’s current theft-by-

deception convictions as felonies under OCGA § 16-8-12 (a) (1) (D) in light of his

two prior misdemeanor convictions for that offense. Additionally, pursuant to OCGA

§ 17-10-7 (a) and (c), the trial court found that Parham was a habitual felon in light

of his other multiple prior felony convictions, and the court sentenced him to a term

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of five years in prison on Count 1 and to a term of five years, to serve three years in

prison, on Count 2, with the sentences to run consecutively, for a total term of 10

years, with the first eight years in prison. Because he was sentenced as a habitual

felon under the general recidivist provisions of OCGA § 17-10-7 (a) and (c), Parham

is ineligible for parole and thus will be required to serve the full eight years in prison.

See Wynn v. State, 332 Ga. App. 429, 437 (5) (773 SE2d 393) (2015).

Parham filed a motion for new trial, as amended, in which he argued that the

trial court erred in sentencing him pursuant to the general recidivist statute and

contended that his trial counsel rendered ineffective assistance by failing to raise such

an objection during the sentencing hearing. The trial court denied Parham’s amended

motion, resulting in this appeal.

1. Parham maintains that the trial court erred in sentencing him under the

general recidivist statute, OCGA § 17-10-7 (a) and (c), because OCGA § 16-8-12 (a)

(1) (D) is the more specific recidivist provision applicable to his theft-by-deception

convictions. According to Parham, the general and specific recidivist provisions are

mutually exclusive and inconsistent with one another, and the trial court thus should

have sentenced him as a recidivist only under the more specific provision of OCGA

§ 16-8-12 (a) (1) (D), which gave the court discretion to impose a sentence of

3
between one and five years on each count if the trial court elected to sentence him as

for a felony.1 Consequently, Parham argues, his sentence was void and should be

vacated. We are unpersuaded.

In ascertaining the meaning of statutory provisions, the fundamental rules of

statutory construction require us to construe statutes according to their terms, afford

words their plain and ordinary meaning, and avoid constructions that make some

language meaningless or mere surplusage. See State v. Mussman, 289 Ga. 586, 588

(1) (713 SE2d 822) (2011). Language in one provision of a statute must be construed

1
Parham did not object at the sentencing hearing to the imposition of a
recidivist sentence under OCGA § 17-10-7 (a) and (c). However, “[a] sentence is void
if the court imposes punishment that the law does not allow,” and “a challenge to [a]
void sentence cannot be waived by the failure to object.” (Citations and punctuation
omitted.) Robbins v. State, 326 Ga. App. 812, 813 (757 SE2d 452) (2014). Because
a sentence imposed under the wrong recidivist provision is void and Parham has
raised a cognizable claim to that effect, we will review Parham’s claim despite his
failure to object, even though we ultimately conclude, as discussed infra, that his
sentence was not in fact void. See Kipple v. State, 329 Ga. App. 94, 95 (763 SE2d
752) (2014) (concluding that defendant’s claim that he was sentenced under wrong
recidivist statute raised cognizable void sentence claim, but ultimately determining
that defendant was sentenced under proper recidivist statute); Robbins, 326 Ga. App.
at 813-814 (concluding that defendant’s claim that he could not be sentenced under
general recidivist statute raised cognizable void sentence claim, but ultimately
agreeing with trial court that sentence was not in fact void). See generally von
Thomas v. State, 293 Ga. 569, 572-575 (2) (748 SE2d 446) (2013) (discussing
different types of challenges to prior convictions used for recidivist sentencing that
can and cannot be waived by failing to object in trial court).

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in light of the other provisions of the same statute, Fair v. State, 288 Ga. 244, 252 (2)

(702 SE2d 420) (2010), and “all statutes relating to the same subject-matter, briefly

called statutes ‘in pari materia,’ are construed together, and harmonized wherever

possible, so as to ascertain the legislative intendment and give effect thereto.”

(Citation and punctuation omitted.) Goldberg v. State, 282 Ga. 542, 546 (651 SE2d

667) (2007).

Mindful of these rules of construction, we turn to the pertinent statutory

framework and the arguments raised in the present appeal. OCGA §§ 16-8-2 through

16-8-9 set forth a series of theft-related criminal offenses, including theft by

deception, OCGA § 16-8-3 (a). OCGA § 16-8-12 then delineates the ranges of

punishment for different types of theft committed under OCGA §§ 16-8-2 through

16-8-9. OCGA § 16-8-12 (a) provides that, as a general rule, a defendant convicted

of a theft offense under OCGA §§ 16-8-2 through 16-8-9 should be punished as for

a misdemeanor. However, OCGA § 16-8-12 (a) (1) (D), the specific recidivist

provision at issue here, states:

If the defendant has two prior convictions for a violation of Code
Sections 16-8-2 through 16-8-9, upon a third conviction or subsequent
conviction, such defendant shall be guilty of a felony and shall be

5
 punished by imprisonment for not less than one nor more than five years
and, in the discretion of the trial judge, as for a misdemeanor[.]

Georgia’s general recidivist statute is codified at OCGA § 17-10-7. Pursuant

to OCGA § 17-10-7 (a),2 a defendant convicted of a second felony offense “shall be

sentenced to the longest period of time prescribed for punishment of the second

offense, although the sentencing court may probate or suspend the maximum

sentence.” Wynn, 332 Ga. App. at 437 (5). Pursuant to OCGA § 17-10-7 (c),3 a

2
OCGA § 17-10-7 (a) provides:
Except as otherwise provided in subsection (b) or (b.1) of this Code
section, any person who, after having been convicted of a felony offense
in this state or having been convicted under the laws of any other state
or of the United States of a crime which if committed within this state
would be a felony and sentenced to confinement in a penal institution,
commits a felony punishable by confinement in a penal institution shall
be sentenced to undergo the longest period of time prescribed for the
punishment of the subsequent offense of which he or she stands
convicted, provided that, unless otherwise provided by law, the trial
judge may, in his or her discretion, probate or suspend the maximum
sentence prescribed for the offense.
3
OCGA § 17-10-7 (c) provides:
Except as otherwise provided in subsection (b) or (b.1) of this Code
section and subsection (b) of Code Section 42-9-45, any person who,
after having been convicted under the laws of this state for three felonies

6
defendant convicted of a fourth felony offense “must serve the maximum time

sentenced ‘and shall not be eligible for parole until the maximum sentence has been

served.’” Id., quoting OCGA § 17-10-7 (c). Significantly, OCGA § 17-10-7 (e) of the

general recidivist statute provides that the statute “is supplemental to other provisions

relating to recidivous offenders.”

“[A] specific statute will prevail over a general statute, absent any indication

of a contrary legislative intent.” (Citation and punctuation omitted; emphasis

supplied.) Williams v. State, 299 Ga. 632, 634 (791 SE2d 55) (2016). Based on the

plain and unambiguous language of OCGA § 17-10-7 (e), our Supreme Court has

held that “the General Assembly has expressly indicated its intent that OCGA § 17-

10-7 and other recidivist sentencing provisions . . . be construed harmoniously” rather

than in conflict with one another whenever it is possible to do so. Goldberg, 282 Ga.

at 544. See Butler v. State, 281 Ga. 310, 311-312 (637 SE2d 688) (2006). To that end,

or having been convicted under the laws of any other state or of the
United States of three crimes which if committed within this state would
be felonies, commits a felony within this state shall, upon conviction for
such fourth offense or for subsequent offenses, serve the maximum time
provided in the sentence of the judge based upon such conviction and
shall not be eligible for parole until the maximum sentence has been
served.

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our Supreme Court has held that the general recidivist provisions of OCGA § 17-10-7

should be read as supplementing a specific recidivist provision found in another

statutory sentencing scheme, so long as the specific recidivist provision does not

contain language “blocking” the application of OCGA § 17-10-7. Goldberg, 282 Ga.

at 544-547. See Butler, 281 Ga. at 311-312.

In Goldberg, 282 Ga. at 544-547, our Supreme Court illustrated the manner in

which to harmonize the general recidivist statute with other specific recidivist

provisions. The defendant in that case was convicted and sentenced for burglary, and

it was his fifth felony conviction and his third for burglary. Id. at 542. The specific

recidivist statute for habitual burglars, OCGA § 16-7-1 (b), authorized a sentence of

“imprisonment for not less than five nor more than 25 years” for a third burglary

conviction and did not contain any language blocking the application of the general

recidivist statute, OCGA § 17-10-7.4 Harmonizing those statutes, the Supreme Court

held that the “specific recidivist statute [for burglary] applies when the defendant is

a habitual burglar having only prior convictions for burglary, whereas the . . . general

recidivist statute applies when the defendant is a habitual felon with prior convictions

4
OCGA § 16-7-1 (b) has been amended since the Goldberg decision, Ga. L.
2012, p. 899, § 3-1/HB 1176, but not in a manner that affects the analysis or the result
reached in that case.

8
for other crimes.” Id. at 547. Because the defendant’s conviction in Goldberg

represented not only his third burglary conviction but his fifth felony conviction, the

Supreme Court held that he was more than a habitual burglary under the specific

recidivist provision of OCGA § 16-7-1 (b) and thus could be sentenced under the

general recidivist statute. Goldberg, 282 Ga. at 545. The Supreme Court noted that

“[a]ny other holding [would] fail[] to give effect to the General Assembly’s intent that

subsection (e) of OCGA s 17-10-7 be given substantive consideration.” Id.

Applying the reasoning and methodology of Goldberg to the present case, we

conclude that the trial court committed no error in sentencing Parham as a habitual

felon under the general recidivist provisions of OCGA § 17-10-7 (a) and (c). The

specific recidivist provision applicable to theft by deception and certain other theft

convictions, OCGA § 16-8-12 (a) (1) (D), does not contain any language blocking the

application of the general recidivist statute, and thus the general recidivist statute

must be read as supplementing rather than conflicting with the specific recidivist

provision in accordance with the mandate of OCGA § 17-10-7 (e). See Goldberg, 282

Ga. at 544-547; Butler, 281 Ga. at 311-312. Compare Mann v. State, 273 Ga. 366,

368-369 (1) (541 SE2d 645) (2001) (defendant properly sentenced under OCGA §

16-13-30 (d), the specific recidivist statute for certain drug offenses, rather than under

9
the general recidivist statute, where the specific statute expressly stated that “[t]he

provisions of subsection (a) of Code Section 17-10-7 shall not apply to a sentence

imposed for a second such offense”). When OCGA § 16-8-12 (a) (1) (D) and the

general recidivist statute are harmonized, the former provision applies when a

defendant is a repeat offender having only prior convictions for theft offenses under

OCGA §§ 16-8-2 through 16-8-9, or when the trial court acts in its discretion to treat

the current theft conviction as a misdemeanor. In contrast, the general recidivist

statute applies when the trial court elects to treat the defendant’s current theft

conviction as a felony, and the defendant has prior convictions for felony offenses

other than those set forth in OCGA §§ 16-8-2 through 16-8-9.

In the present case, the trial court elected to treat Parham’s current theft-by-

deception convictions as felonies. See OCGA § 16-8-12 (a) (1) (D). Furthermore,

Parham had multiple prior convictions for felony offenses other than those found in

OCGA §§ 16-8-2 through 16-8-9, including five prior felony convictions for theft by

shoplifting (OCGA § 16-8-14) and a prior felony conviction for financial transaction

card fraud (OCGA § 16-9-33). It follows that Parham was more than a repeat offender

of theft offenses under OCGA § 16-8-12 (a) (1) (D), and thus the trial court was

authorized to sentence him as a habitual felon under OCGA § 17-10-7 (a) and (c). See

10
Goldberg, 282 Ga. at 544-547; Butler, 281 Ga. at 311-312; Kipple, 329 Ga. App. at

95-96; Kennedy v. State, 302 Ga. App. 289, 290 (690 SE2d 255) (2010); Patrick v.

State, 284 Ga. App. 472, 473-474 (644 SE2d 309) (2007). Compare Wester v. State,

294 Ga. App. 263, 266 (2) (668 SE2d 862) (2008) (trial court erred in sentencing

defendant as a habitual felon under OCGA § 17-10-7 rather than under the specific

recidivist provision for shoplifting offenses, where all of the defendant’s prior felony

convictions were for shoplifting).

Parham, however, points out that OCGA § 16-8-12 contains more than one

recidivist sentencing provision for theft offenses, and he emphasizes that OCGA §

16-8-12 (a) (5), which addresses recidivist punishment for telemarketing-related

thefts, expressly states that the general recidivist statute should be applied to that

paragraph:

(A) The provisions of paragraph (1) of this subsection notwithstanding,
if the theft or unlawful activity was committed in violation of subsection
(b) of Code Section 10-1-393.5 or in violation of subsection (b) of Code
Section 10-1-393.6 or while engaged in telemarketing conduct in
violation of Chapter 5B of Title 10, by imprisonment for not less than
one nor more than ten years or, in the discretion of the trial judge, as for
a misdemeanor; provided, however, that any person who is convicted of
a second or subsequent offense under this paragraph shall be punished
by imprisonment for not less than one year nor more than 20 years.

11
 (B) Subsequent offenses committed under this paragraph, including
those which may have been committed after prior felony convictions
unrelated to this paragraph, shall be punished as provided in Code
Section 17-10-7[.]

(Emphasis supplied.) Parham contends that because the General Assembly expressly

stated in OCGA § 16-18-12 (a) (5) (B) that the general recidivist statute should apply

to convictions under OCGA § 16-8-12 (a) (5) (A), but did not include similar

language for convictions under OCGA § 16-8-12 (a) (1) (D), the general recidivist

statute should not be applied to convictions under the latter provision. We disagree.

As previously noted, OCGA § 17-10-7 (e) provides that the general recidivist

statute is supplemental to other specific recidivist statutes, and our Supreme Court has

construed subsection (e) to mean that the general recidivist statute should be applied

in sentencing a habitual felon unless the specific recidivist provision contains

language blocking its application. See Goldberg, 282 Ga. at 544-547; Butler, 281 Ga.

at 311-312. Our Supreme Court has further construed OCGA § 17-10-7 (e) to mean

that the general recidivist statute does not apply if a defendant’s only prior

convictions were for the same offense covered by the specific recidivist statute. See

Goldberg, 282 Ga. at 544-547. See also Wester, 294 Ga. App. at 266 (2). The issue,

therefore, is how to construe the statutory language found in OCGA § 16-8-12 (a) (5)

12
(B) referencing the general recidivist statute in a manner that harmonizes with OCGA

§ 17-10-7 (e). See Goldberg, 282 Ga. at 546-547 (statutes covering the same subject

matter should be construed together and harmonized whenever possible).

Mindful of the aforementioned interpretive principles, we conclude that

pursuant to OCGA § 16-8-12 (a) (5) (B), the general recidivist statute applies to

subsequent convictions for telemarketing-related thefts under OCGA § 16-8-12 (a)

(5) (A), even if all of the recidivist defendant’s prior convictions were also for

telemarketing-related thefts. Otherwise, the language referencing the general

recidivist statute in OCGA § 16-8-12 (a) (5) (B) would be merely redundant of

OCGA § 17-10-7 (e) as interpreted in Goldberg and its progeny, a result that should

be avoided. See Wetzel v. State, 298 Ga. 20, 28 (3) (a) (779 SE2d 263) (2015) (courts

must avoid “interpreting statutes in a manner that renders any portion of them

surplusage or meaningless.”) (citation and punctuation omitted). Accordingly, OCGA

§ 16-8-12 (a) (5) (B) expands the application of the general recidivist statute to

telemarketing-related offenses beyond what would otherwise be contemplated by

OCGA § 17-10-7 (e); it does not block the application of the general recidivist statute

or have any bearing on whether that statute applies to other provisions of OCGA §

13
16-8-12 addressing recidivist punishment.5 Parham’s argument predicated on OCGA

§ 16-8-12 (a) (5) (B) thus is misplaced.6

Lastly, Parham contends that even if the general recidivist statute can be

applied to felony theft-by-deception convictions under OCGA § 16-8-12 (a) (1) (D),

he did not have the requisite number of prior felony convictions to be sentenced as

a habitual felon under OCGA § 17-10-7 (c). Specifically, relying on Wester, 294 Ga.

App. at 266 (2), Parham argues that his multiple prior felony convictions for theft by

5
Compare OCGA § 16-13-30 (d) (“Except as otherwise provided, any person
who violates subsection (b) of this Code section with respect to a controlled
substance in Schedule I or Schedule II shall be guilty of a felony and, upon conviction
thereof, shall be punished by imprisonment for not less than five years nor more than
30 years. Upon conviction of a second or subsequent offense, he or she shall be
imprisoned for not less than ten years nor more than 40 years or life imprisonment.
The provisions of subsection (a) of Code Section 17-10-7 shall not apply to a
sentence imposed for a second such offense; provided, however, that the remaining
provisions of Code Section 17-10-7 shall apply for any subsequent offense.”); OCGA
§ 17-10-7 (b.1) (“Subsections (a) and (c) of this Code section shall not apply to a
second or any subsequent conviction for any violation of subsection (a), paragraph
(1) of subsection (i), or subsection (j) of Code Section 16-13-30.”)
6
Parham also argues that the statutory framework is ambiguous as to whether
the general recidivist statute applies in this case and that, under the rule of lenity, the
ambiguity should be construed in his favor. But, the rule of lenity applies only in
circumstances where a statutory ambiguity exists and it cannot be resolved through
the other traditional rules of statutory construction. See McNair v. State, 293 Ga. 282,
284 (745 SE2d 646) (2013). And, for all of the reasons previously discussed, Parham
has failed to show that the statutory framework was ambiguous or that any alleged
ambiguity could not be resolved through traditional statutory construction rules.

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shoplifting could not be used for sentencing under the general recidivist statute. His

argument is without merit. Wester addressed whether a defendant presently convicted

and sentenced for theft by shoplifting, whose prior convictions were all for theft by

shoplifting, should be sentenced under the general recidivist statute or solely under

OCGA § 16-8-14 (b) (1) (C), the specific recidivist statute for theft by shoplifting.

See Wester, 294 Ga. App. at 266 (2). Here, of course, Parham was presently convicted

and sentenced for theft by deception, not theft by shoplifting. Thus, the specific

recidivist statute for theft by shoplifting was irrelevant to Parham’s sentencing, and

Wester is simply inapposite.

For these combined reasons, the trial court was authorized to sentence Parham

under the general recidivist statute (OCGA § 17-10-7 (a) and (c)), rather than solely

under the more specific recidivist provision applicable to theft-by-deception

convictions (OCGA § 16-8-12 (a) (1) (D)). Parham therefore has failed to

demonstrate that his sentence should be vacated as void.

2. Parham also contends that his trial counsel rendered ineffective assistance

by failing to object to the trial court sentencing him under the general recidivist

statute. However, as explained supra in Division 1, Parham was properly sentenced

under that statute, and the “[f]ailure to make a meritless objection cannot be evidence

15
of ineffective assistance.” (Citation and punctuation omitted.) Fults v. State, 274 Ga.

82, 87 (7) (548 SE2d 315) (2001). Consequently, Parham cannot succeed on his

ineffective assistance claim. See id.

Judgment affirmed. McMillian and Mercier, JJ., concur.

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