THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS and RICKMAN, 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
October 4, 2017
In the Court of Appeals of Georgia
A17A2012. MITCHELL v. THE STATE.
ELLINGTON, Presiding Judge.
Derrick Mitchell entered a non-negotiated guilty plea to one count of family
violence battery, OCGA § 16-5-23.1 (f) (2), in the Superior Court of Coweta County.
Because Mitchell had a prior conviction for family violence battery, the court
imposed a felony sentence of five years, two to serve in prison and the balance on
probation. Mitchell appeals his sentence, contending that the court should have
applied the rule of lenity and sentenced him for a misdemeanor.
The record shows that, at about 3:00 a.m. on October 20, 2015, Mitchell went
to his former girlfriend’s apartment because he thought that another man was living
with her. When he arrived, he argued with the victim and loudly berated her. The
argument ended with Mitchell punching the victim in the mouth several times. The
victim called the police, and the responding officer found the victim holding an ice
pack to her swollen and bruised mouth. The officer then spoke to Mitchell, who was
nervous and agitated. He admitted to the officer that he was upset with the victim and
that he had argued with her; however, he denied having hit her.
During the plea hearing, the prosecutor tendered, without objection, a certified
copy of Mitchell’s previous family violence battery conviction against the same
victim. The exhibit shows that Mitchell entered his plea to misdemeanor family
violence battery on May 16, 2016, for an incident that occurred during the previous
year, on May 12, 2015. Mitchell committed the instant crime on October 20, 2015 –
after the first offense had occurred but prior to the date he was sentenced for the first
offense. Mitchell was indicted for the October 2015 incident on November 2, 2016;
and he entered his guilty plea to that offense on January 26, 2017. Because Mitchell
had a prior conviction for family violence battery, the trial court imposed a felony
conviction pursuant to OCGA § 16-5-23.1 (f) (2) (B). That Code section provides
that, “[u]pon a second or subsequent conviction of family violence battery against the
same or another victim, the defendant shall be guilty of a felony and shall be punished
by imprisonment for not less than one nor more than five years.” Id.
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Mitchell argues that, under the circumstances of this case, OCGA §
16-5-23.1(f) (2) (B) does not require the court to impose a felony sentence. He
contends that, when a second offense of family violence battery is committed prior
to the entry of a judgment of conviction for the first offense of family violence
battery, the statute’s sentencing requirements are ambiguous and therefore requires
the application of the rule of lenity. And, applying the rule of lenity, Mitchell
contends that the court should have imposed a misdemeanor sentence. We disagree.
“As in all appeals involving the construction of statutes, our review is
conducted under a de novo standard.” (Citation omitted.) Hankla v. Postell, 293 Ga.
692, 693 (749 SE2d 726) (2013). Pursuant to the rules of statutory construction, we
presume that the General Assembly meant what it said and said what it
meant. To that end, we must afford the statutory text its plain and
ordinary meaning, we must view the statutory text in the context in
which it appears, and we must read the statutory text in its most natural
and reasonable way, as an ordinary speaker of the English language
would.
(Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a)
(751 SE2d 337) (2013). “Applying these principles, if the statutory text is ‘clear and
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unambiguous,’ we attribute to the statute its plain meaning, and our search for
statutory meaning is at an end.” Id. at 173.
By its plain language, OCGA § 16-5-23.1 (f) (2) (B) provides that upon a
second or subsequent conviction – not act, crime, or offense – the defendant shall be
guilty of felony. It does not matter when the offenses occurred. All that matters for
purposes of this sentencing provision is that the defendant have a prior conviction for
family violence battery. There is no ambiguity and hence nothing to construe.
Because OCGA § 16-5-23.1 (f) (2) (B) is unambiguous, the rule of lenity does not
apply. Hudson v. State, 334 Ga. App. 166, 168 (2) n. 3 (778 SE2d 406) (2015). (“The
rule of lenity is a rule of construction that is applied only when an ambiguity still
exists after having applied the traditional canons of statutory construction.”) (citations
omitted). Consequently, this claim of error is without merit.
Judgment affirmed. Andrews and Rickman, JJ., concur.
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