Humphrey v. State
297 Ga. 349
Ga.
2015
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HUMPHREY v. THE STATE

S15A0588

Supreme Court of Georgia

DECIDED JUNE 15, 2015.

349 Ga. 349 | 773 SE2d 760

BLACKWELL, Justice.

that Gates or Appellant acted in self-defense or in defense of others. Accordingly, the trial court did not err in declining to give a justification instruction.

Moreover, even if we were to speculate that, before the audio playback was stopped, the jury heard what the transcript (which was not evidence) indicates were Appellant‘s poorly recorded and equivocal statements suggesting that Boyd intended to shoot at Gates and Appellant after they approached his car, when that is coupled with Detective Quinn‘s undisputed testimony that Appellant also said that Gates had an AK-47 trained on the car at the time Appellant approached and knocked on the window, then Gates was the original aggressor even in Appellant‘s version of events. And a defendant is not entitled to a jury instruction on justification when the evidence is that the supposedly justified party was the aggressor. See OCGA § 16-3-21 (b) (3) (“A person is not justified in using force . . . if he . . . [w]as the aggressor . . . unless he withdraws from the encounter and effectively communicates to such other person his intent to do so and the other, notwithstanding, continues or threatens to continue the use of unlawful force.“); (holding that the defendant was not entitled to a self-defense charge where the record showed that the victim initiated a fight only after the defendant had threatened him with a revolver); .

Judgment affirmed. All the Justices concur.

DECIDED JUNE 15, 2015.

Jimmonique R. S. Rodgers, Long D. Vo, for appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Sheila E. Gallow, Peggy R. Katz, Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Michael A. Oldham, Assistant Attorney General, for appellee.

S15A0588. HUMPHREY v. THE STATE.

(773 SE2d 760)

BLACKWELL, Justice.

In July 1998, Jamel Humphrey negotiated a plea agreement with the State, entered a plea of guilty but mentally ill, was convicted of murder upon his plea, and was sentenced to a term of imprisonment for life with the provision that he would be eligible for parole, but only after he served 25 years of his sentence. Almost sixteen years later, Humphrey filed a motion to vacate his sentence, alleging that the sentence is void because murder is punishable only by death, imprisonment for life without any possibility of parole ever, or imprisonment for life with the possibility of parole at the earliest point permitted by law, which would have been, in Humphrey‘s case, after fourteen years.1 The trial court denied his motion, and Humphrey appeals. For the reasons that follow, we reverse the judgment of the trial court and remand the case with direction.

To begin, we agree with Humphrey that the law only authorized the trial court to sentence him to death, imprisonment for life without any possibility of parole ever, or imprisonment for life with the possibility of parole as soon as permitted by law. See OCGA § 16-5-1 (e) (1). The applicable law offered the trial court no other sentencing options. It is true that Humphrey consented to his sentence, including the provision that he would be ineligible for parole for the first 25 years of that sentence. But when a court imposes a criminal punishment that the law does not allow, the sentence is not just an error, it is void. See (“A sentence is void if the court imposes punishment that the law does not allow.” (Citation omitted.)). And as we have indicated in a number of cases, the consent of the parties cannot validate a void sentence. See, e.g., (“[A] defendant who knowingly enters into a plea agreement and accepts the benefit of that bargain does not waive or ‘bargain away’ the right to challenge an illegal and void sentence.” (Citations omitted.)); (“A defendant who knowingly enters into a plea agreement does not waive the right to challenge an illegal and void sentence.” (Citation omitted.)); (“[A] sentence which is not allowed by law is void, and its illegality may not be waived.” (Citations, punctuation and emphasis omitted.)); (“Void convictions and illegal sentences have never been subject to general waiver rules.“).

These principles seem especially sound when applied to a sentence that purports to limit eligibility for parole in a way that is not authorized by statutory law. By imposing such a sentence, a court intrudes upon the constitutional prerogative of the State Board of Pardons and Paroles to extend clemency to persons under sentence. See Ga. Const. of 1983, Art. IV, Sec. II, Par. II (a) (“[T]he State Board of Pardons and Paroles shall be vested with the power of executive clemency, including the powers to grant reprieves, pardons, and paroles . . . .“). Although the Constitution permits the General Assembly by statute to limit this prerogative in certain respects, see Ga. Const. of 1983, Art. IV, Sec. II, Par. II (b), (c), the Constitution gives the courts no such authority. For that reason, a judicial incursion upon the constitutional prerogative of the Board “violates the constitutional provision regarding the separation of powers.” . And whatever the prosecuting attorneys and defendant in a criminal case might agree to, they cannot simply by agreement confer upon the judicial branch an extraconstitutional power to limit the constitutional prerogatives of another branch of the government. See (“The authority to grant parole or other relief from the sentence imposed by the trial court rests with the State Board of Pardons & Paroles, not the district attorney‘s office.” (Citation omitted.)). To the extent that we held otherwise in , we overrule that decision.

The sentence that the trial court imposed in this case is void to the extent that it purports to limit the power of the Board to parole Humphrey as soon as the statutory law permits. That provision of the sentence - but only that provision - must be vacated. See (“When a defendant is sentenced in a murder case to life imprisonment plus probation, only the portion of the sentence imposing probation is invalid.” (Citation omitted.)). Accordingly, we reverse the denial of the motion to vacate the sentence, and we remand for the trial court to vacate the provision of the sentence that purports to limit Humphrey‘s eligibility for parole.2 See ; .

Judgment reversed and case remanded with direction. All the Justices concur.

Notes

1
At the time Humphrey committed his crime, and at the time he was sentenced, the law provided that a person serving a life sentence with the possibility of parole for murder would be eligible for parole only after serving fourteen years. See Ga. L. 1994, p. 1959, § 11 (former OCGA § 17-10-6.1 (c) (1)). The law now provides that such a person generally is eligible for parole after serving 30 years. See OCGA § 17-10-6.1 (c) (1).
2
In his plea agreement, Humphrey not only consented to the imposition of a sentence that purports to limit the power of the Board to parole him, he also promised that he would not seek parole for 25 years. No one should misunderstand our decision as holding that his promise not to seek parole is unenforceable. When a defendant promises the State that he will not ask for parole, his promise is a personal one. It does not require a court to do anything, and it does not purport to limit the constitutional power of the Board. If Humphrey breaks his promise and applies to the Board for parole before he has served 25 years, the State may ask the Board itself or a court to enforce the promise. We express no opinion today about the availability of a remedy for the State, but our decision does not foreclose the possibility of such a remedy.
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