Aftеr a jury trial, Christopher Jones was found guilty of the aggravated assault of Cindy Hurst and the kidnapping of her and of her six-year-old and 18-month-old daughters. The trial court entered judgments of conviction on the guilty verdicts and sentenced Jones to concurrent terms of ten years for the aggravated assault, five years for the kidnapping of Ms. Hurst, and 25 years for each of the other two counts of kidnapping. The trial court denied a motion for new trial with respect to the aggravated assault conviction. That conviction was appealed by Jones and, after transfer of the case by this Court, was affirmed by the Court of Appeals. Jones v. State,
1. Jones contends that the State did not prove his guilt bеyond a reasonable doubt of any of the kidnapping charges. Construed most strongly in support of the verdicts, the evidence shows that, a few days after Jones moved to Georgia to live with Ms. Hurst, he became
Jones primarily argues that there was insufficient evidence of the asportation еlement of kidnapping under Garza v. State,
Garza sets out four factors that should be considered in determining whether the asportation element of kidnapping is met: “(1) the duration of the movement; (2) whether the movement occurrеd during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.” [Cit.] In casеs where the Garza standard is applicable, this Court has not required the satisfaction of all four factors to establish that asportation has occurred. [Cit.] In fact, this Court has even found asportation when only two of the Garza factors were present. [Cit.]
Hammond v. State, supra at 144-145 (2). However, in the case now before us, all four factors havе been satisfied. The duration of the movement to the car and while riding therein “was not brief or momentary ....” Brown v. State, supra at 905 (3) (eight minutes). “[S]uch movement was not an inherent part of the [aggravated assault]; in fact, it occurred after the offense of [aggravated assault] had been completed.” Henderson v. State,
2. Jones urges that the three kidnapping convictions should have been merged into the aggravated assault convictions, or vice versa, or that two of the kidnapping convictions should have been merged into the other kidnapping conviction.
Under Georgia law, certain convictions merge and multiple punishment is precluded where the same conduct establishes the commission of more than one crime, and the one crime is included in the оther.... [Cit.] See OCGA § 16-1-7 (a); Drinkard v. Walker,281 Ga. 211 , 212-213 (636 SE2d 530 ) (2006). But the merger doctrine does not apply if each of the charged crimes was committed against a different victim. [Cits.]
Carmichael v. State,
Furthermore, “ ‘[t]he rule prohibiting more than one conviction if one crime is included in the other does not apply unless “the same conduct” of the accused establishes the commission of multiple crimes. (Cits.)’ [Cit.]” McCloud v. State,
Even if the kidnapping counts did involve the sаme conduct as the aggravated assault, neither is included in the other after application of the “required evidence” test set forth in Drinkard. “Kidnapping requires proof of asportation, [tit.] which aggravated assault does not. The aggravated assault did not require movement or holding the viсtim against her will.” Williams v. State,
Aggravated assault as charged in this case required proof that [Jones] used his hands [and feet], with either the intent to cause a violent injury or which placed the victim in reasonable fear of receiving a violent injury. The kidnapping charge [s] did not require such proof. Becausе each of the two crimes at issue requires proof of at least one fact which the other does not and the State provided such proof, the crimes do not merge. . . .
Mayberry v. State,
3. In State v. Jones, supra at 302-303 (1), we held that certain claims of ineffective assistance of trial counsel were not timely raisеd on motion for new trial. However, in both that motion and this appeal, appellate counsel has raised the issue of whether trial counsel rendered ineffective assistance by failing to raise the constitutionality of the mandatory minimum sentence of 25 years imprisonment without parole, as currently codified in OCGA §§ 16-5-40 (d) (2) and 17-10-6.1 (b) (2), for kidnapping a victim less than 14 years old. Contrary to Jones’ initial argument, the trial judge on remand was authorized to rule on this constitutional issue because we had vacated the prior trial court ruling on the issue. State v. Jones, supra at 304 (3).
As recognized by the trial court on remand, no constitutiоnal challenges to the sentencing statutes were raised until the motion for new trial. A constitutional attack on a sentencing statute, unlike a statute under which a criminal defendant is prosecuted, may be made after the guilty verdict is returned, as the first opportunity to challenge such a statutе does not occur until after that time. Woods v. State,
failed to raise his constitutional challenges at the first available opportunity during thе sentencing hearing. Rather, his challenges were first raised in his amended motion for new trial. Because his challenges were untimely, they are not subject to review. [Cits.]
Souder v. State, supra. See also Nuckles v. State, supra. Accordingly, the trial court correctly proceeded to examine whether Jones’ trial counsel was ineffectivе for failing to raise constitutional challenges to the sentencing statutes. In doing so, the trial court made specific rulings rejecting on the merits each constitutional challenge which Jones claims should have been made by his trial counsel.
“Under Strickland v. Washington,466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), ‘(t)o prevail on a claim of ineffective аssistance of trial counsel, [Jones] bears the burden of showing both that trial counsel was deficient and that he was prejudiced by the deficiency. (Cit.)’ (Cit.) In order to establish prejudice, ‘a defendant (must) show “a reasonable probability sufficient to undermine confidence in the outcome that, but for counsel’s alleged unprofessional errors, the result of the proceeding would have been different.” (Cits.)’ (Cit.) When reviewing an ineffective assistance claim, ‘we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apрly the legal principles to the facts. (Cits.)’ (Cit.)” [Cit.]
Gandy v. State,
Outside the context of the death penalty, of extreme cases such as life imprisonment as punishment for overtime parking, and ... of life without parole for a juvenile convictеd of non-homicide crimes, successful challenges to the proportionality of legislatively mandated terms of imprisonment should be “exceedingly rare.” [Cit.] Where, as here, no categorical Eighth Amendment restriction applies, we must in the following manner “determin(e) whether a sentence for a term of years is grossly disproportionate for a particular defendant’s crime. A court must begin by comparing the gravity of the offense and the severity of the sentence. (Cit.) ‘(I)n the rare case in which (this) threshold comparison . . . leads to an inference of gross disproportion-аlity’ the court should then compare the defendant’s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions.” [Cit.] We have “emphasize(d) that it is the ‘rare case( )’ in which the threshold inference оf gross disproportionality will be met and a rarer case still in which that threshold inference stands after further scrutiny. (Cit.)” Humphrey v. Wilson, [282 Ga. 520 ,] 532 (3) (g) [(652 SE2d 501 ) (2007)] (a rare case because of the legislative sea change in the punishment for consensual teenage oral sex). “ ‘(A) sentence which is not otherwise cruel and unusual doеs not become so simply because it is “mandatory.” (Cit.)’ (Cit.) ‘Legislative enactments constitute the clearest and most objective evidence of how contemporary society views a particular punishment. (Cit.) As a result, the issue of punishment is generally one for the legislative branch, and lеgislative discretion is deferred to*676 unless the sentence imposed shocks the conscience. (Cit.)’ ” [Cit.]
Adams v. State, supra at 701-702 (4). Kidnapping is defined in OCGA § 17-10-6.1 (a) as a “serious violent felony” and, as discussed in Division 1 above, presented a significant danger to the child victims in this case. In no way could the kidnapping be considered a “ ‘passive felony.’ ” Adams v. State, supra at 702 (4). The evidence showed that, after beating Ms. Hurst in the young children’s presence so severely as to break her jaw and cause other injuries, Jones ordered all three of them to enter his car, drove them away, and left them in a location where they were isolated and unprotected. In these circumstances, Jones’ concurrent 25-year sentences for child kidnapping do not raise a threshold inference of gross disproportion-ality. “ ‘Similarly severe punishments for crimes against children have withstood previous attacks on constitutional grounds. (Cits.)’ [Cit.]” Adams v. State, supra.
Jones further contends that the sentencing statutes for child kidnapping as applied to him violate due process because an earlier indictment charged regular kidnapping and, only after plea negotiations failed, the more severe sentence was included in a re-indictment. Contrary to Jones’ argument, such circumstances do not raise a presumption of prosecutorial vindictiveness in the absence of actual evidence thereof. United States v. Goodwin,
Accordingly, Jones has failed to show either deficient performance by trial cоunsel or a reasonable probability that the outcome of trial would have been different if the constitutional challenges had been timely raised. His ineffective assistance claim is therefore without merit. Gandy v. State, supra at 172 (4) (b).
Judgments affirmed.