Parham v. the State
342 Ga. App. 754
| Ga. Ct. App. | 2017Background
- Charles Parham was convicted by a jury of two counts of theft by deception (OCGA § 16-8-3(a)).
- Indictment alleged two prior misdemeanor theft-by-deception convictions, making the current thefts felonies under OCGA § 16-8-12(a)(1)(D).
- The State gave notice it would seek habitual-felon treatment under the general recidivist statute OCGA § 17-10-7 based on multiple prior felony convictions.
- At sentencing the court treated the theft-by-deception counts as felonies and relied on Parham’s numerous prior felonies (including shoplifting and card fraud) to impose habitual-felon sentences under OCGA § 17-10-7(a) and (c), totaling an effective 10-year term (eight years to serve).
- Parham moved for a new trial arguing the court should have applied only the specific theft recidivist provision (OCGA § 16-8-12(a)(1)(D)) and that trial counsel was ineffective for not objecting; the trial court denied the motion and Parham appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sentencing under OCGA § 17-10-7 was improper because OCGA § 16-8-12(a)(1)(D) is the specific recidivist provision for theft-by-deception | Parham: Specific theft recidivist statute controls; applying general statute makes sentence void | State: OCGA § 17-10-7(e) makes the general statute supplemental; harmonize statutes; general statute applies where defendant has other felony priors | Court: Affirmed — general recidivist statute properly applied and harmonized with the specific theft provision |
| Whether OCGA § 16-8-12(a)(5)(B)’s express reference to OCGA § 17-10-7 means the general statute should not apply to § 16-8-12(a)(1)(D) | Parham: Legislature’s explicit reference to § 17-10-7 in (a)(5)(B) but not in (a)(1)(D) shows intent to limit § 17-10-7 elsewhere | State: (a)(5)(B) expands application for telemarketing thefts but does not block § 17-10-7 elsewhere; avoid surplusage | Court: (a)(5)(B) merely expands application for that subsection and does not negate § 17-10-7’s supplemental role; Parham’s argument fails |
| Whether Parham had sufficient felony priors for OCGA § 17-10-7(c) given many priors were shoplifting | Parham: Prior shoplifting felonies cannot be counted for general recidivist sentencing (relies on Wester) | State: Wester is inapposite because Parham’s current conviction is theft by deception, not shoplifting; other felony priors exist | Court: Held Parham had qualifying felony priors distinct from OCGA § 16-8-2–16-8-9 offenses; § 17-10-7 applied |
| Whether trial counsel was ineffective for not objecting to habitual-felon sentencing under OCGA § 17-10-7 | Parham: Counsel should have objected at sentencing | State: No ineffective assistance because objection would have been meritless | Court: Held claim fails because sentencing under § 17-10-7 was proper; failure to make a meritless objection is not ineffective assistance |
Key Cases Cited
- Goldberg v. State, 282 Ga. 542 (Ga. 2007) (general recidivist statute is supplemental and must be harmonized with specific recidivist statutes)
- Butler v. State, 281 Ga. 310 (Ga. 2006) (same principle: harmonize general and specific recidivist provisions)
- Wynn v. State, 332 Ga. App. 429 (Ga. Ct. App. 2015) (discusses parole ineligibility when sentenced under OCGA § 17-10-7)
- Kipple v. State, 329 Ga. App. 94 (Ga. Ct. App. 2014) (addresses interplay of specific theft recidivist provisions and general recidivist statute)
- Wester v. State, 294 Ga. App. 263 (Ga. Ct. App. 2008) (holds specific shoplifting recidivist statute controls when all priors and current offense are the same shoplifting violation)