Case Information
*1 FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, 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
September 8, 2017 In the Court of Appeals of Georgia
A17A1663. PARHAM v. THE STATE.
B ARNES , Presiding Judge.
A jury found Charles Frank Parham guilty of two counts of theft by deception, and the trial court sentenced him as a recidivist under OCGA § 17-10-7 (a) and (c) based on his prior felony convictions. The trial court thereafter denied Parham’s motion for a new trial, as amended. On appeal, Parham arguеs that the trial court erred in sentencing him under the general recidivist statute, OCGA § 17-10-7 (a) and (c), because only the more specific recidivist provision for theft-by-deception convictions, OCGA § 16-8-12 (a) (1) (D), applied in this case. Parham also argues that his trial counsel rendered ineffective assistance by failing to object to the trial court sentencing him under the general recidivist statute. For the reasons discussed more fully below, we conclude that the trial court was authorized to sentence Parham under the general recidivist statute and therefore affirm.
The record reflects that Parham was indicted on two counts of theft by deception in violation of OCGA § 16-8-3 (a). The indictment alleged that Parham had two prior misdemeanor convictions for theft by deception, such that Parham was eligible for felony punishment under the specific recidivist provision applicable to certain theft offenses, OCGA § 16-8-12 (a) (1) (D). Before trial, the State also served Parham with notice of its intent to seek to punish him as a habitual felon under the general recidivist statute, OCGA § 17-10-7 (a) and (c), based on his prior convictions for several felony offenses.
Parham proceeded to trial and was found guilty on both counts of theft by
deceptiоn. At the sentencing hearing, the State introduced evidence of Parham’s 27
prior convictions for various offenses, including the two prior misdemeanor
convictions for theft by deception referenced in the indictment, five prior felony
convictions for theft by shoplifting, and a prior felony conviction for financial
transaction card fraud. The trial court elected to treat Parham’s current thеft-by-
deception convictions as felonies under OCGA § 16-8-12 (a) (1) (D) in light of his
two prior misdemeanor convictions for that offense. Additionally, pursuant to OCGA
§ 17-10-7 (a) and (c), the trial court found that Parham was a habitual felon in light
of his other multiple prior felony convictions, and the court sentenced him to a term
*3
of five years in prison on Count 1 and to a term of five years, to serve three years in
prison, on Count 2, with the sentences to run consecutively, for a total term of 10
years, with the first eight years in prison. Because he was sentenced as a habitual
felon under the general recidivist provisions of OCGA § 17-10-7 (a) and (c), Parham
is ineligible for parole and thus will be required to serve the full eight years in prison.
See
Wynn v. State
,
Parham filed a motion for new trial, as amended, in which he argued that the trial court erred in sentencing him pursuant to the generаl recidivist statute and contended that his trial counsel rendered ineffective assistance by failing to raise such an objection during the sentencing hearing. The trial court denied Parham’s amended motion, resulting in this appeal.
1. Parham maintains that the trial court erred in sentencing him under the general recidivist statute, OCGA § 17-10-7 (a) and (c), because OCGA § 16-8-12 (a) (1) (D) is the more specific recidivist provision applicable to his theft-by-deception convictions. According to Parham, the general and specific recidivist provisions are mutually exclusive and inconsistent with one another, and the trial court thus should have sentenced him as a recidivist only under the more specific provision of OCGA § 16-8-12 (a) (1) (D), which gave the court discretion to impose a sentence of *4 between one and five years on each count if the trial court elected to sentence him as for a felony. [1] Consequently, Parham argues, his sentence was void and should be vacated. We are unpersuaded.
In ascertaining the meaning of statutory provisions, the fundamental rules of
statutory construction require us to construe statutes according to their terms, afford
words their plain and ordinary meaning, and avoid constructions that make somе
language meaningless or mere surplusage. See
State v. Mussman
,
Mindful of these rules of construction, we turn to the pertinent statutory framework and the arguments raised in the present appeal. OCGA §§ 16-8-2 through 16-8-9 set forth a series of theft-related criminal offenses, including theft by deception, OCGA § 16-8-3 (a). OCGA § 16-8-12 then delineates the ranges of punishment for different types of theft committed under OCGA §§ 16-8-2 through 16-8-9. OCGA § 16-8-12 (a) provides that, as a general rule, a defendant convicted of a theft offense under OCGA §§ 16-8-2 through 16-8-9 should be punished as for a misdemeanor. However, OCGA § 16-8-12 (a) (1) (D), the specific recidivist provision at issue here, states:
If the defendant has two prior convictions for a violation of Code Sections 16-8-2 through 16-8-9, upon a third conviction or subsequent conviction, such defendant shall be guilty of a felony and shall be *6 punished by imprisonment for not less than one nor more than five years and, in the discretion of the trial judge, as for a misdemeаnor[.] Georgia’s general recidivist statute is codified at OCGA § 17-10-7. Pursuant to OCGA § 17-10-7 (a), [2] a defendant convicted of a second felony offense “shall be sentenced to the longest period of time prescribed for punishment of the second offense, although the sentencing court may probate or suspend the maximum sentence.” Wynn , 332 Ga. App. at 437 (5). Pursuant to OCGA § 17-10-7 (c), [3] a *7 defendant convicted of a fourth felony offеnse “must serve the maximum time sentenced ‘and shall not be eligible for parole until the maximum sentence has been served.’” Id., quoting OCGA § 17-10-7 (c). Significantly, OCGA § 17-10-7 (e) of the general recidivist statute provides that the statute “is supplemental to other provisions relating to recidivous offenders.”
“[A] specific statute will prevail over a general statute,
absent any indication
of a contrary legislative intent
.” (Citation and punctuation omitted; emphasis
supplied.)
Williams v. State
,
our Supreme Court has held that the general recidivist provisions of OCGA § 17-10-7
should be read as supplementing a specific recidivist provision found in another
statutory sentencing schemе, so long as the specific recidivist provision does not
contain language “blocking” the application of OCGA § 17-10-7.
Goldberg
, 282 Ga.
at 544-547. See
Butler
,
In
Goldberg
,
Applying the reasoning and methodology of
Goldberg
to the present case, we
conclude that the trial court committed no error in sentencing Parham as a habitual
felon under the general recidivist provisions of OCGA § 17-10-7 (a) and (c). The
specific recidivist provision applicable to theft by deception and certain other theft
convictions, OCGA § 16-8-12 (a) (1) (D), does not contain any language blocking the
application of the general recidivist statute, and thus the general recidivist statute
must be read as supplementing rather than conflicting with the specific recidivist
provision in accordance with the mandate of OCGA § 17-10-7 (e). See
Goldberg
, 282
Ga. at 544-547;
Butler
,
In the present case, the trial court elected to treat Parham’s current theft-by-
deception convictions as felonies. See OCGA § 16-8-12 (a) (1) (D). Furthermore,
Parham had multiple prior convictions for felony offenses other than those found in
OCGA §§ 16-8-2 through 16-8-9, including five prior felony convictions for theft by
shoplifting (OCGA § 16-8-14) and a prior felony conviction for financial transaction
card fraud (OCGA § 16-9-33). It follows that Parham was more than a repeat offender
of theft offenses under OCGA § 16-8-12 (a) (1) (D), and thus the trial court was
authorized to sentence him as a habitual felon under OCGA § 17-10-7 (a) and (c). See
*11
Goldberg
,
Parham, however, points out that OCGA § 16-8-12 contains more than one recidivist sentencing provision for theft offenses, and he emphasizes that OCGA § 16-8-12 (a) (5), which addresses recidivist punishment for telemarketing-related thefts, expressly states that the general recidivist statute should be applied to that paragraph:
(A) The provisions of paragraph (1) of this subsection notwithstanding, if the theft or unlawful activity was committed in violation of subsection (b) of Code Section 10-1-393.5 or in violation of subsection (b) of Code Section 10-1-393.6 or while engaged in telemarketing conduct in violation of Chapter 5B of Title 10, by imprisonment for not less than one nor more than ten years or, in the discretion of the trial judge, as for a misdemeanor; provided, however, that any person who is convicted of a second or subsequent offense under this paragraph shall be punished by imprisonment for not less than one year nor more than 20 years. *12 (B) Subsequent offenses committed under this paragraph, including those which may have been committed after prior felony convictions unrelated to this paragraph, shall be punished as provided in Code Section 17-10-7 [.]
(Emphasis supplied.) Parham contends that because the General Assembly expressly stated in OCGA § 16-18-12 (a) (5) (B) that the general recidivist statute should apply to convictions under OCGA § 16-8-12 (a) (5) (A), but did not include similar language for convictions under OCGA § 16-8-12 (a) (1) (D), the general recidivist statute should not be applied to convictions under the latter provision. We disagree.
As previously noted, OCGA § 17-10-7 (e) provides that the general recidivist
statute is supplemental to other specific recidivist statutes, and our Supreme Court has
construed subsection (e) to mean that the general recidivist statute should be applied
in sentencing a habitual felon unless the specific recidivist provision contains
language blocking its application. See
Goldberg
,
Mindful of the aforementioned interpretive principles, we conclude that
pursuant to OCGA § 16-8-12 (a) (5) (B), the general recidivist statute applies to
subsequent convictions for telemarketing-related thefts under OCGA § 16-8-12 (a)
(5) (A), even if
all
of the recidivist defendant’s prior convictions were also for
telemarketing-related thefts. Otherwise, the language referencing the general
recidivist statute in OCGA § 16-8-12 (a) (5) (B) would be merely redundant of
OCGA § 17-10-7 (e) as interpreted in
Goldberg
and its progeny, a result that should
be avoided. See
Wetzel v. State
,
Lastly, Parham contends that even if the general recidivist statute can be
applied to felony theft-by-deception convictions under OCGA § 16-8-12 (a) (1) (D),
he did not have the requisite number of prior felony convictions to be sentenced as
a habitual felon under OCGA § 17-10-7 (c). Specifically, relying on
Wester
, 294 Ga.
App. at 266 (2), Parham argues that his multiple prior felony conviсtions for theft by
*15
shoplifting could not be used for sentencing under the general recidivist statute. His
argument is without merit.
Wester
addressed whether a defendant presently convicted
and sentenced for theft by shoplifting, whose prior convictions were all for theft by
shoplifting, should be sentenced under the general recidivist statute or solely under
OCGA § 16-8-14 (b) (1) (C), the specific recidivist statute for theft by shoplifting.
See
Wester
,
For these combined reasons, the trial court was authorized to sentence Parham under the general recidivist statute (OCGA § 17-10-7 (a) and (c)), rather than solely under the more specific recidivist provision applicable tо theft-by-deception convictions (OCGA § 16-8-12 (a) (1) (D)). Parham therefore has failed to demonstrate that his sentence should be vacated as void.
2. Parham also contends that his trial counsel rendered ineffective assistance by failing to object to the trial court sentencing him under the general recidivist statute. However, as explained supra in Division 1, Parham was properly sentenced under that statutе, and the “[f]ailure to make a meritless objection cannot be evidence *16 of ineffective assistance.” (Citation and punctuation omitted.) Fults v. State , 274 Ga. 82, 87 (7) (548 SE2d 315) (2001). Consequently, Parham cannot succeed on his ineffective assistance claim. See id.
Judgment affirmed. McMillian and Mercier, JJ., concur .
Notes
[1] Parham did not object at the sentencing hearing to the imposition of a
recidivist sentence under OCGA § 17-10-7 (a) and (c). However, “[a] sentence is void
if the court imрoses punishment that the law does not allow,” and “a challenge to [a]
void sentence cannot be waived by the failure to object.” (Citations and punctuation
omitted.)
Robbins v. State
,
[2] OCGA § 17-10-7 (a) provides: Except as otherwise provided in subsection (b) or (b.1) of this Code section, 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 sentenced to undergo the longest period of time prescribed for the рunishment 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.
[3] OCGA § 17-10-7 (c) provides: Except as otherwise provided in subsection (b) or (b.1) of this Code section and subsection (b) of Code Section 42-9-45, any person who, after having been convictеd under the laws of this state for three felonies
[4] OCGA § 16-7-1 (b) has been amended since the Goldberg decision, Ga. L. 2012, p. 899, § 3-1/HB 1176, but not in a manner that affects the analysis or the result reached in that case.
[5] Compare OCGA § 16-13-30 (d) (“Except as otherwise provided, any person who violates subsection (b) of this Code section 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 рrovisions of Code Section 17-10-7 shall apply for any subsequent offense.”); OCGA § 17-10-7 (b.1) (“Subsections (a) and (c) of this Code section shall not apply to a second or any subsequent conviction for any violation of subsection (a), paragraph (1) of subsection (i), or subsection (j) of Code Section 16-13-30.”)
[6] Parham also argues that the statutory framework is ambiguous as to whether
the general recidivist statute applies in this case and that, under the rule of lenity, the
ambiguity should be construed in his favor. But, the rule of lenity applies only in
circumstances where a statutory ambiguity exists and it cannot be resolved through
the other traditional rules of statutory construction. See
McNair v. State
,