Hillman v. Johnson, 297 Ga. 609

Background

In 2008 Marvin Hillman was convicted of armed robbery (two counts), burglary, aggravated assault, and possession of a firearm by a convicted felon (OCGA § 16-11-131). Sentences were imposed under OCGA § 17-10-7(a) (recidivist statute) to the maximum for each offense, including five years for the felon-in-possession count.
The felon-in-possession charge rested on a prior felony conviction for hindering apprehension; that prior conviction was also the basis for applying § 17-10-7(a).
Hillman’s direct appeal to the Court of Appeals affirmed. Hillman later filed a habeas petition claiming, among other things, ineffective assistance of trial counsel for failing to challenge recidivist sentencing under King v. State (1984).
King held that § 17-10-7(a) could not be used to force the maximum sentence on a § 16-11-131 felon-in-possession conviction because that would nullify the statute’s 1-to-5 year range.
Lower appellate decisions after King extended King’s rule to bar use of the same prior felony to enhance any other convictions in the same case; the Georgia Supreme Court reviewed the correctness of that extension.
The habeas court denied relief; the Supreme Court of Georgia granted appeal limited to whether counsel was ineffective for not challenging recidivist sentencing under King.

Issues

Issue	Hillman’s Argument	Warden’s Argument	Held
Whether § 17-10-7(a) applies to a § 16-11-131 felon‑in‑possession conviction	King bars applying § 17-10-7(a) to felon‑in‑possession because it would nullify the 1–5 year range	§ 17-10-7(a) applies generally; felon‑in‑possession can be sentenced to maximum if prior felony exists	King and Slaughter control: § 17-10-7(a) does not require maximum sentence for § 16-11-131 convictions (vacate 5‑yr sentence)
Whether King’s principle bars § 17-10-7(a) enhancement for other offenses in the same case when the prior felony also proved § 16-11-131	King’s rationale should bar using the same prior to enhance any conviction in the case	King is narrow; it only protects the felon‑in‑possession statutory range and does not reach other crimes	Court rejects post‑King Court of Appeals extensions: § 17-10-7(a) does apply to other crimes that do not include the prior‑felony element (disapproves cases like Allen I, Arkwright)
Whether counsel was ineffective for failing to object to recidivist sentences on non‑§16‑11‑131 offenses	Failure to object was ineffective and prejudicial	Even if counsel erred, those objections would not have prevailed after correction of post‑King case law	No Strickland prejudice for armed robbery, burglary, aggravated assault sentences; those recidivist enhancements were legally proper
Whether counsel was ineffective for failing to object to the five‑year §16‑11‑131 sentence	Counsel’s failure was deficient and prejudiced Hillman because King/Slaughter bar mandatory max on §16‑11‑131	Trial counsel’s failure was not so serious; habeas court correctly denied relief	Strickland prejudice shown as to the §16‑11‑131 sentence; habeas court’s denial reversed and remand ordered to vacate the 5‑yr sentence and resentence within 1–5 years

Key Cases Cited

King v. State, 169 Ga. App. 444 (Ga. Ct. App. 1984) (holding §17-10-7(a) cannot be applied to force maximum sentence on §16-11-131 because that would nullify the statute’s 1–5 year range)
State v. Slaughter, 289 Ga. 344 (Ga. 2011) (endorsing King’s narrow rule and rejecting broader Court of Appeals extensions)
Woodard v. State, 296 Ga. 803 (Ga. 2015) (recognizing valid application of §17-10-7(a) where prior felony is not an element of the offense)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (ineffective assistance standard: deficient performance and prejudice)
Williams v. Taylor, 529 U.S. 362 (U.S. 2000) (prejudice analysis limits when based on an incorrect interpretation of law)
Lafler v. Cooper, 566 U.S. 156 (U.S. 2012) (any additional jail time at sentencing can give rise to Sixth Amendment prejudice)