Terry Daniels was tried and convicted on five counts of child molestation, four counts of aggravated child molestation, and two counts of incest all involving the same victim; he was acquitted on two counts of statutory rape. On appeal, Daniels does not challenge the sufficiency of the evidence. Rather, he challenges aspects of his sentence and claims ineffective assistance of counsel. The issues arise out of the fact that, with one exception, Daniels was сharged in each of six pairs of counts with identical sexual misconduct toward the same victim, with one count alleging misconduct before July 1, 2006, and the other alleging misconduct on or after that date.
In each pair of counts, Daniels was charged with one of various types of sexual misconduct toward the victim. In one count he was alleged to have committed the misconduct in two separate time periods occurring before July 1, 2006; in the other count he was charged with the identical misconduсt in two separate time periods occurring on or after July 1, 2006. For example, in Counts 1 and 2, Daniels was charged with child molestation in that he “did touch said child upon her vagina with his hand.” In Count 1, it was alleged that the crime occurred
on or about the periods between January 1, 2005 and September 20, 2005, and the periods between October 7, 2005 and June 30, 2006, the exact dates being unknown.
(Emphasis supplied.) In Count 2, it was alleged that the crime occurred
on or about the periods between July 1,2006 and September 25, 2007, and the periods between March 7, 2008 and May 29, 2008, the exact dates being unknown.
(Emphasis supplied.) The оther five matching pairs of counts — Counts 3 and 4, 6 and 7, 8 and 9, 10 and 11, and 12 and 13 — follow this pattern, the only change being the alleged
On April 13, 2011, following trial, the jury returned a verdict against Daniels, and he was sentenced that day on all 11 counts for which he was convicted. In Counts 6, 8, and 12, Daniels was given the post-July 1, 2006 sentence even though each of these counts alleged conduct occurring before July 1, 2006. Defense counsel did not object to the sentence in open court that day. On May 2, 2011, however, Daniels moved for a new trial, and on November 1, 2011, he amended his motion, to assert, among other things, that the cоurt erred by applying an ex post facto sentence on Counts 6, 8, and 12;
Although the trial court denied the motion for new trial, it agreed with the State that Daniels had been sеntenced improperly, and the court announced that Daniels’s sentence would be vacated on Counts 1, 3, 6, 8, and 12 and that he would be resentenced. Thus, on March 22, 2012, nunc pro tunc to April 13, 2011, the trial court resentenced Daniels. Nevertheless, the cоurt did not merge any of the counts. All together, Daniels was sentenced to a total of life plus 45 years to serve.
1. Daniels does not dispute that some evidence was presented to show that he committed each crime both before and on or after July 1, 2006. Accordingly, there was
2. Daniels challenges the trial court’s failure to merge for sentencing one count in each of five pairs of counts in which the crimes alleged are identical but the date range is different. He contends the sentence on one count in each pair is void because it should have merged into the corresponding count for sentencing given that the only difference in the counts in each pair was the alleged range of dates that the crime was committed, yet those dates were not alleged to be material avermеnts of the indictment. Daniels notes that the trial court, in fact, charged the jury that the dates were not material averments:
I charge you the dates alleged in this indictment are not material elements of the charges contained therein, and where the date alleged in the indictment is not a material element of the offense, the State must prove that the offense occurred as of any date within the Statute of Limitations, and the Statute of Limitations with respect to all counts within this particular indictmеnt is seven years.
And, of course, the jury was not aware of the significance of the July 1, 2006 sentencing distinction. Daniels concludes that based on the indictment and on the jury instruction, “the jury could have found Mr. Daniels guilty based on conduct occurring before July 1, 2006, for the оffenses that alleged the date range beginning July 1,2006.” Thus, he could have been given the post-July 1, 2006 sentences for actions occurring before July 1, 2006. We agree.
Where two charges are indistinguishable because “all of the averments, including date (which was not mаde an essential element), victim, and description of defendant’s conduct constituting the offense were identical,” only one sentence may be imposed. (Citation and punctuation omitted.) Hudson v. State,
Similarly, where a charge alleges a range of dates wherein the crime occurred without alleging that the dates are material averments, the charge “covers any offense of the nature charged within the period of limitation, including the dates alleged, and the State is not confined to proof of a single transaction, but may prove or attempt to prove any number of transactions of the nature charged within the period.” (Citation and punctuation omitted.) Bowman v. State,
Here, the State charged Daniels with the identical conduct in each pair of counts without identifying specific particularized incidents. The date ranges alleged in each count were not made material allegations of the indictment, and they were described as being “on or about” a certain set of dates with “the exact dates being unknown.” More
The cases upon which the State relies are distinguishable because there is no indication that the trial court in those cases charged the jury that the dates in the indictments were not material averments of the crimes. See, e.g., Salley v. State,
Accordingly, Daniels may not be convicted on both counts of each pair, and the trial court erred by failing to merge for sentencing Counts 1 аnd 2, Counts 3 and 4, Counts 6 and 7, Counts 8 and 9, and Counts 12 and 13.
3. With regard to Counts 6 and 7, Counts 8 and 9, and Counts 12 and 13, Daniels contends the rule of lenity dictates that he be sentenced under the pre-July 1, 2006 version of the applicable statutes. We agree.
In each pair of Counts 6 and 7 and Cоunts 8 and 9, Daniels was charged with and convicted of aggravated child molestation for the identical specified act of sexual misconduct occurring before and after July 1, 2006, respectively. In Counts 12 and 13, Daniels was charged with and convicted of incest for the identical specified act of sexual misconduct occurring before and after July 1, 2006, respectively. As already shown, the legislature increased the punishment for both crimes effective July 1, 2006. Supra, n. 2.
This Court recently stated the rule of lenity as follows:
The rule of lenity applies where twо or more statutes prohibit the same conduct while differing only “with respect to their prescribed punishments.” Dixon v. State,278 Ga. 4 , 7 (1) (d) (596 SE2d 147 ) (2004). According to the rule, “[w]here any uncertainty develops as to which penal clause is applicable, the accused is entitled to hаve the lesser of the two penalties administered.” (Punctuation and footnote omitted.) Brown v. State,276 Ga. 606 , 608-609 (2) (581 SE2d 35 ) (2003).
(Footnote omitted.) White v. State,
4. Daniels’s sentence is vacated and the case remanded for resentencing. Because our decision addresses each of Daniels’s arguments regarding sentencing, his claim of ineffective assistance of counsel regarding those same arguments is moot.
Judgment affirmed and case remanded with direction.
Notes
Count 5 alleged only actions by Daniels occurring after July 1,2006, and that count does not have a matching count alleging the same misconduct prior to that date.
Effective that date, the legislature, among other things, (1) increased the sentence rаnge for the crime of child molestation for first offenders to five to twenty years and for multiple offenders to ten to thirty years, OCGA § 16-6-4 (b); (2) increased the sentence range for the crime of aggravated child molestation from ten to thirty years to “imprisonment fоr life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life,” OCGA § 16-6-4 (d) (1); (3) increased the sentence range for the crime of incest from one to twenty years to “imprisоnment for not less than 25 nor more than 50 years” when the victim is less than 14 years of age, OCGA § 16-6-22 (b); and (4) added a new provision for mandatory minimum sentences for persons convicted of a sexual offense, OCGA § 17-10-6.2. Ga. L. 2006, p. 379, §§ 11, 14, 21.
See, e.g., Ewell v. State,
OCGA § 17-10-6.2providesforcertainmandatoryminimum sentences for sexual offenses.
Daniels was resentenced as follows:
Count 1: Child Molestation - 20 years to serve, consecutive to Count 7;
Count 2: Child Molestation - 20 years to serve, concurrent to Count 1;
Count 3: Child Molestation - 20 years to serve, concurrent to Count 1;
Count 4: Child Molestation - 20 years to serve, concurrent to Count 1;
Count 5: Child Molestation - 20 years to serve, concurrent to Count 1;
Count 6: Agg. Child Molestation - 30 years to serve, concurrent to Count 7;
Count 7: Agg. Child Molestation - life imprisonment;
Count 8: Agg. Child Molestation - 30 years to serve, concurrent to Count 7;
Count 9: Agg. Child Molestation - life imprisonment, concurrent to Count 7;
Count 12: Incest - 20 years to serve, consecutive to Count 1; and
Count 13: Incest - 25 years to serve, consecutive to Count 1, but concurrent to Count 12.