Donta Q. Johnson v. State
A20A0359
| Ga. Ct. App. | Oct 4, 2019Background
- Donta Q. Johnson was convicted of multiple sexual offenses and battery, and was denied a new trial.
- Trial court recognized a sentencing error and re-sentenced Johnson in April 2018 to reflect split sentences on the child-molestation counts.
- Johnson’s prior appeals were dismissed for procedural defaults (failing to follow interlocutory procedures; failing to file a brief).
- In June 2019 Johnson filed motions styled to “correct a void sentence” and to arrest/stay judgment, asserting prosecutorial nondisclosure, merger, ineffective assistance, and an omitted element, plus a claim he did not receive statutorily required split sentences.
- The trial court denied those motions; Johnson appealed to the Court of Appeals, which dismissed the appeal for lack of jurisdiction because his claims did not present a colorable claim of a void sentence and the sentencing issue had been corrected.
Issues
| Issue | Johnson's Argument | State's Argument | Held |
|---|---|---|---|
| Jurisdiction to review post-appeal motion to vacate conviction/sentence | His motions to correct a void sentence should be reviewable on appeal | Motions to vacate/modify a conviction are not the proper remedy; appellate court lacks authority to review such post-appeal challenges | Appeal dismissed for lack of jurisdiction under Harper/Roberts |
| Whether claims attacking conviction (Brady, merger, ineffective assistance, omitted element) render the sentence void | Those defects make the judgment/sentence void and subject to correction | Those claims attack the validity of the convictions, not the legality of the sentence; they do not make the sentence void | Not colorable as void-sentence claims; cannot be raised in a late motion to modify sentence |
| Whether the sentence was void for failing to impose split sentences under OCGA §17-10-6.2(b) | He did not receive split sentences on child-molestation counts | Trial court re-sentenced Johnson and imposed split sentences as required | Meritless — trial court had re-sentenced to give split sentences |
| Timeliness of sentence modification under OCGA §17-10-1(f) | He sought correction after the statutory period expired | Sentence may be modified only within one year (or 120 days after remittitur); after that only a truly void sentence may be modified | Because no void sentence was shown, the court could not modify outside the statutory period |
Key Cases Cited
- Harper v. State, 286 Ga. 216 (2009) (post-conviction petitions to vacate or modify a judgment of conviction are not the proper remedy in a criminal case)
- Roberts v. State, 286 Ga. 532 (2010) (appeals from orders denying such petitions must be dismissed)
- Jones v. State, 278 Ga. 669 (2004) (sentence is void only if it imposes punishment the law does not allow)
- Frazier v. State, 302 Ga. App. 346 (2010) (statutory window to modify a sentence and the limited post-window remedy of correcting only void sentences)
- von Thomas v. State, 293 Ga. 569 (2013) (motions to vacate void sentences are generally limited to claims that the law does not authorize the sentence)