Rooney v. State
318 Ga. App. 385
| Ga. Ct. App. | 2012Background
- Rooney pleaded guilty in 1995 to rape, aggravated sodomy, aggravated sexual battery, and three counts of battery, and later sought modification under OCGA § 17-10-1 (f).
- OCGA § 17-10-1 (f) allows sentence modification within one year or 120 days after remittitur from direct appeal, whichever is later; after expiration, only void sentences may be modified.
- Rooney filed his motion to modify on November 22, 2011, more than 16 years after sentencing and beyond the 2002 deadline for this appeal.
- Affirmance of Rooney’s conviction occurred no later than 2001; the 120-day clock ran in 2002; his 2011 remittitur does not restart the period.
- The trial court denied the motion to modify; Rooney appealed, arguing merger of counts and shifting from consecutive to concurrent sentences, among other voidness claims.
- Record on appeal contained no transcripts or evidence to support Rooney’s void-sentence arguments; issues were deemed not colorable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of motion to modify under 17-10-1(f) | Rooney argues timely modification within the statutory period. | State contends the motion was filed outside the statutory period. | Motion untimely; 120-day period expired in 2002; remittitur in 2011 does not extend. |
| Jurisdiction to grant merger or concurrent-sentence relief | Rooney seeks merger and concurrent sentencing adjustments. | State maintains trial court lacked jurisdiction to grant such relief after lapse of period. | Trial court properly denied; jurisdiction to modify did not extend to these claims. |
| Direct-appealability of denial of motion to modify | Rooney contends denial is subject to direct appeal. | State argues only colorable voidness claims are appealable. | Direct appeal not available unless colorable claim of a void sentence is shown. |
| Colorable voidness of Rooney's conviction | Rooney asserts multiple voidness grounds (perjury, grand jury, indictment procedure, self-incrimination advisory). | Record is insufficient to establish voidness; arguments are not supported by transcripts. | No colorable voidness shown; appeal dismissed for lack of record support. |
| Procedural bar due to prior rulings | Rooney resists procedural bars by citing new arguments. | Many issues already decided in prior Rooney appeals. | Issues are conclusive or barred by prior determinations; no relitigation. |
Key Cases Cited
- Frasier v. State, 302 Ga. App. 346 (2010) (addressing timeliness under 17-10-1 (f) and void-sentence concepts)
- Rooney v. State, 287 Ga. 1 (2010) (concurrent vs. consecutive sentencing considerations)
- Reynolds v. State, 272 Ga. App. 91 (2005) (timeliness of motions to set aside or modify sentences)
- Spiller v. State, 282 Ga. 351 (2007) (statutory timing and issues related to remittitur)