A17A1728. LOVELESS v. THE STATE.
A17A1728
In the Court of Appeals of Georgia
February 26, 2018
DILLARD, Chief Judge.
FOURTH DIVISION DILLARD, C. J., RAY and SELF, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
This is the second appearance of this case before our Court. We previously affirmed Loveless’s convictions for trafficking in methamphetamine, driving without a license, giving false information to law enforcement, and obstruction when he challenged them on direct appeal.1 Upon remittitur, the trial judge concluded, sua sponte, that the sentence entered on Loveless’s conviction for trafficking in methamphetamine was void, and thereafter conducted a second sentencing hearing, during which Loveless was resentenced. Loveless now appeals from the entry of his new sentence, arguing that the trial court erred by resentencing him as a recidivist under
The facts underlying Loveless’s criminal conviction are set forth in our prior opinion.2 Specifically, Loveless was found in possession of 220.11 grams of material that tested positive for methamphetamine, was convicted in a bench trial of trafficking in methamphetamine,3 and was originally sentenced “to a
Loveless appeals from this new sentence, asserting the enumerations of error set forth supra. And because this appeal presents questions of law, we will review the trial court’s decision de novo.6 But at the outset, before addressing his enumerations of error, we note again that Loveless previously filed an appeal with this Court, for which a paper transcript and record were transmitted for our review. In the present notice of appeal, Loveless indicates that the clerk should omit nothing from the appeal, and that a transcript of evidence and proceeding will be filed for inclusion in the record on appeal. The electronic record for the current appeal, however, is limited to filings relevant to the case after the remittitur from the prior appeal. Loveless nowhere indicated in his notice of appeal an intention to rely upon the paper record and transcript previously transmitted to this Court in his prior case, yet his appellate brief makes numerous references tо comments and rulings made by the trial court that are contained within that record. Nevertheless, the previously filed paper record having not yet been recycled,7 this Court has reviewed it when necessary to address Loveless’s enumerations of error. That said, we take this opportunity to remind appellants that the burden is upon them to ensure that a complete record is transmitted to this Court for review in every appeal and to notify this Court of any intent to rely upon a previously transmitted record and/or transcript.8 We turn now to Loveless’s enumerations of error.
1. First, Loveless argues that the trial court еrred in resentencing him as a recidivist under
(a) The trial court’s jurisdiction to resentence Loveless. As the Supreme Court of Georgia has recognized, after a defendant begins serving his sentence, his sentence can only be increased through resentencing when “(a) such resentencing is allowed by law, and (b) the defendant has no reasonable expectation in the finality of the original sentence.”9 Without these special circumstances, the resentencing “constitutes a double punishment that runs afoul of the Fifth Amendment prohibition against double jeopardy.”10 But it is well established that a trial court has jurisdiction to “resentence defendants at any time when their sentences are void.”11
In this case, when the trial court originally sentenced Loveless, the State argued that the “trafficking statute[12] says the [mandаtory] max[imum] [sentence] is 30 [years]” but that the trial court could not “just look at the trafficking statute in a vacuum” and instead also had to consider
Following argument, the trial court applied the maximum sentence from
As I read the code sections, [
OCGA §] 17-10-7 (a) applies which means I have to sentenсe him to the longest period of that—the maximum. The maximum on this is life. The maximum on this says 40 or life. . . . Life would be the maximum. I mean, nobody knows how long you’re going to live and I respect that part[,] but it would be life. So I have to give him life. But I can probate it. I’m not going to sentence him under [OCGA § 17-10-7] (c) . I don’t think [OCGA § 17-10-7] (c) applies to this situation.
When the State asked the court to provide a specific reason as to why
As detailed supra, when the trial court sua sponte held a resentencing hearing, the trial judge explained that she had erroneously sentenced Loveless under
Indeed,
Except as othеrwise provided, any person who violates subsection (b) of this Code section[14] with respect to a controlled substance in Schedule I or Schedule II shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment
for not less than five years nor more than 30 years. Upon conviction of a second or subsequent offense, he or she shall be imprisoned for not less than ten years nor more than 40 years or life imprisonment. The provisions of subsection (a) of Code Section 17-10-7 shall not apply to a sentence imposed for a second such offense; provided, however, that the remaining provisions of Code Section 17-10-7 shall apply for any subsequent offense.
This is the provision under which the trial court initially sentenced Loveless to life, serve 25 years. But
Except as authorized by this article, any person who sells, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine, amphetamine, or any mixture containing either methamphetamine or amphetamine, as described in Schedule II, in violation of this article commits the felony offense of trafficking in methamphetamine or amphetamine and, upon conviction thereof, shall be punished as follows: . . . If the quantity of methamphetamine, amphetamine, or a mixture containing either substance involved is 200 grams or more, but less than 400 grams, the person shall be sentenced to a mandatory minimum term of imprisonment of 15 years and shall pay a fine of $300,000.00[.]15
Further,
Thus, it is clear that the trial court initially erroneously sentenced Loveless under
(b) The trial court’s application of
any person who, after having been convicted of a felony offense in this state or having been convicted under the laws of any other state or of the United States of a crime which if committed within this state would be a felony and sentenced to confinement in a penal institution, commits a felony punishable by confinement in a penal institution shall be sentenсed to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense
any person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.
Both
In North Carolina v. Pearce, 395 U.S. 711 (89 S. Ct. 2072, 23 L. Ed. 2d 656) (1969), the Supreme Court of the United States held that
[d]ue procеss of law . . . requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. . . . [Therefore,] whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.17
Accordingly, the Supreme Court “created a presumption of vindictiveness whenever a more severe sentence is imposed after a new trial, ‘which may be overcome only by objective information in the record justifying the increased sentence.‘”18 But since then, the Supreme Court has narrowed its holding, clarifying that due process “does not require an absolute bar on the increase of sentences after re-conviction or resentencing, but seeks only to prevent ‘increased sentences when that increase was motivated by vindictiveness on the part of the sentencing judge.‘”19
Here, although Loveless’s new sentence does not offer the possibility of parole due to the application of
2. Next, Loveless argues that the trial court erred in sentencing him as a recidivist under
At the outset, we note that the fundаmental rules of statutory construction require us to “construe the statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.”21 Put another way, when we consider
[i]n our search for the meaning of a particular statutory provision, we look not only to the words of that provision, but we consider its legal context as well. After all, context is a primary determinant of meaning. For context, we may look to the other provisions of the same statute, the structure and history of the whole statute, and the other law—constitutional, statutory, and common law alike—that forms the legal background of the statutory provision in question.24
Thus, when we speak of discerning “the intent of the legislature”25 (inadvisable as it may be to do so26), we are referring to interpreting the relevant statutory text within its contextual backdrop.27
Here, the relevant statute is
Loveless contends that because one of his prior convictions was that of simple possession under
Because Loveless was convicted of violating
3. Finally, Loveless argues that the trial court erred in sentencing him as a recidivist under
As previously noted,
During Loveless’s initial sentencing hearing, the State presented three certified convictions, including proof that Loveless pleaded guilty to a charge of federal counterfeiting under
At the resentencing hearing, the State again asked that the Court apply not only
[w]hoever, with intent to defraud, passes, utters, publishes, or sells, or attempts to pass, utter, publish, or sell, or with like intent brings into the United States or keeps in possession or conceals any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be fined under this title or imprisoned not more than 20 years, or both.
In Georgia,
knowingly makes, alters, or possesses any writing, other than a check, in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing.33
Additionally, forgery in the second degree is criminalized when a person, with the intent to defraud,
knowingly makes, alters, or possesses any writing, other than a check, in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority.34
Both forgеry in the first and second degree are punished as felonies.35
As previously noted, at the resentencing hearing, Loveless admitted that federal counterfeiting can constitute the crime of forgery in Georgia. Indeed, we have held in a number of cases that a defendant who possesses counterfeit dollar bills commits the offense of forgery.36 And the provisions of both
Accordingly, the trial court did not err by considering Loveless’s federal conviction for counterfeiting when it resentenced him as a recidivist under
For all these reasons, we affirm.
Judgment affirmed. Ray and Self, JJ., concur.