Following a jury trial, Jermaine Omar McKenzie was convicted of armed robbery, aggravated assault, and possession of a firearm during the commission of a felony. He argues on appeal that his sentence is void because his convictions should have merged, and otherwise makes various challenges to the length of the sentence imposed. We find no error and affirm.
This is the second time this case has appeared before this Court. In
McKenzie v. State,
[J]ust before 3:00 a.m. on December 14, 2006, a gunman with a scarf over his face entered a Waffle House restaurant and demanded money from a waitress. After the waitress gave him funds from the cash register, the gunman asked whether she had “dropped” any money into the lock box, where Waffle House employees put large bills and excess cash from the register. When the waitress denied putting money in the lock box, the gunman pushed his gun against the waitress’ neck, asking whether she wanted to die. The waitress repeated that she had not placed money in the lock box, and the gunman fled.
McKenzie was ultimately apprehended and confessed to the crime. After a jury convicted him of armed robbery, aggravated assault, and possession of a firearm during the commission of a felony, the trial court sentenced him to twenty years to serve on the armed robbery, twenty years probation on the aggravated assault, and five years probation on the possession of a firearm during the commission of a felony, each to run consecutively.
In
McKenzie,
1. McKenzie now argues that his sentence is void because his *539 convictions should have merged for sentencing. 2 We disagree.
(a)
Armed Robbery and Aggravated Assault.
The doctrine of merger precludes the imposition of multiple punishment when the same conduct establishes the commission of more than one crime. See OCGA § 16-1-7 (a);
Drinkard v. Walker,
Here, McKenzie’s convictions of armed robbery and aggravated assault did not merge because they did not involve the same conduct. The crime of armed robbery was complete when McKenzie entered the restaurant and, with the use of a handgun, demanded and took money from the waitress. See OCGA § 16-8-41 (a) (“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon.”);
Ransom,
(b) Possession of a Firearm During the Commission of a Felony. Nor did McKenzie’s conviction on possession of a firearm during the commission of a felony merge with either of his other convictions. OCGA § 16-11-106 (b) (1) renders it a distinct offense to commit with a firearm a crime “against or involving the person of another.”
There is express legislative intent to impose double punishment for conduct which violates both OCGA § 16-11-106 and other felony statutes. OCGA § 16-11-106 (e) states that “[a]ny crime committed in violation of subsection[ ] (b) . . . of this Code section shall be considered a separate offense” from the offense of possession of a firearm during the commission of any of said crimes. The crimes encompassed by the broad language of OCGA § 16-11-106 (b) include offenses such as aggravated assault, armed robbery, kidnapping, and burglary.
(Citations and punctuation omitted.)
Golden v. State,
2. McKenzie next challenges his sentence on the ground that it constitutes cruel and unusual punishment, in violation of the Eighth Amendment, among other procedural grounds. To the extent that McKenzie’s claims take issue with the procedure employed in imposing his sentence, they are barred by the doctrine of res judicata and will not be considered.
McElreath v. State,
We nonetheless note that the trial court’s sentence fell within the statutory range of punishment. See OCGA §§ 16-5-21 (b); 16-8-41 (b); 16-11-106 (b). “It is well established that the trial court has the discretion to impose sentence within the parameters prescribed by the statute and if the sentence is within the statutory limits, the appellate courts will not review it.” (Citations and punctuation omitted.)
Bennett v. State,
[a] presumption arises when a defendant is sentenced within the statutory limits set by the legislature that such sentence does not violate the Eighth Amendment’s guarantee against cruel and unusual punishment. Such presumption remains until a defendant sets forth a factual predicate showing that such legislatively authorized punishment was so overly severe or excessive in proportion to the offense as to shock the conscience.
(Citation and punctuation omitted.)
Kollie,
Judgment affirmed.
Notes
The denial of a defendant’s motion to correct an allegedly void sentence is directly appealable as a matter of right. See
Williams v. State,
McKenzie’s merger argument is not barred by the doctrine of res judicata, because a sentence that imposes punishment on two separate convictions that should have been merged is void, and void judgments may be vacated “at any time in any court.” (Citation omitted.)
Garibay v. State,