Daniels v. State, 320 Ga. App. 340

Daniels was convicted on multiple counts of child molestation, aggravated child molestation, and incest involving the same victim; he was acquitted on two counts of statutory rape.
Six pairs of counts charged identical misconduct with different date ranges pre- and post-July 1, 2006 to reflect legislative changes in punishment.
The jury was instructed that dates were not material elements, permitting conviction for conduct outside the stated ranges.
The 2011 sentencing imposed post-July 1, 2006 penalties on counts alleging pre-July 1, 2006 conduct; defense did not object at the time.
The State conceded ex post facto flaws and that sentences under OCGA § 17-10-6.24 may have been improper; the trial court vacated some sentences and resentenced Daniels in 2012 without merging counts.
Daniels timely appealed the denial of his motion for new trial, challenging sentencing rules and effectiveness of counsel on those issues.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether sentencing should merge identical counts with different date ranges	Daniels (State) support merging; identical conduct with non-material dates require one sentence	Daniels argues counts are indistinguishable and should merge; dates not material	Counts did not merge; trial court erred by not merging pairs for sentencing.
Whether applying post-2006 penalties ex post facto to pre-2006 conduct violated the law	State: some sentences should apply post-2006 statute	Daniels: lenity and earlier statute should govern for pre-2006 conduct	Ex post facto violation found for Counts 6, 8, and 12; resentencing required.
Whether the rule of lenity requires applying the lesser punishment between pre- and post-2006 statutes	State: higher post-2006 penalties should apply	Daniels: lenity favors lesser penalty when uncertainty exists	Lenity requires the lesser penalty due to ambiguity in which statute applied.
Whether Daniels’ sentence is moot as to ineffective assistance of counsel regarding sentencing issues	Daniels contends counsel ineffective over sentencing issues	Counsel ineffective due to sentencing errors	Ineffective assistance claim moot after ruling on sentencing issues.

Hudson v. State, 309 Ga. App. 580 (2011) (counts with identical conduct; only one sentence allowed when dates are not material)
LaPan v. State, 167 Ga. App. 250 (1983) (identical counts with non-material dates; multiple counts can lead to one conviction)
Smith v. State, 160 Ga. App. 26 (1981) (identical counts differing only by date; only one conviction permitted)
Hilliard v. State, 193 Ga. App. 54 (1989) (dates not material averments; multiple convictions limited)
State v. Layman, 279 Ga. 340 (2005) (dates not necessarily material; state not restricted to single transaction)
Bowman v. State, 184 Ga. App. 197 (1987) (charge covers any offense within limitations when date not material)
Salley v. State, 199 Ga. App. 358 (1991) (distinguishable where dates are essential; here not)
Brown v. State, 276 Ga. 606 (2003) (lenity guidance for uncertain penal clause choice)
Dixon v. State, 278 Ga. 4 (2004) (lenity principle for conflicting punishments)
Alexander v. State, 274 Ga. 787 (2002) (indicates general approach to non-material dates in indictments)