Ian David Tew pled guilty to the offense of statutory rape.
In his sole enumeration of error, Tew contends that the trial court erred in ruling that he was not legally eligible for first offender consideration. Specifically, Tew argues that OCGA § 17-10-6.2, which governs the sentencing of persons convicted of sexual offenses, including statutory rape,
As an initial matter, we note that whether or not to sentence a defendant under the First Offender Statute, OCGA § 42-8-60 et seq., lies entirely within the discretion of the trial court.
OCGA § 17-10-6.2 (b) sets forth the mandatory sentence guidelines for persons convicted of a sexual offense. It provides:
Except as provided in subsection (c) of this Code section, . . . any person convicted of a sexual offense shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to the offense. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and such sentence shall include, in addition to the mandatory imprisonment, an additional probated sentence of at least one year.No person convicted of a sexual offense shall be sentenced as a first offender pursuant to Article 3 of Chapter 8 of Title 42, relating to probation for first offenders, or any other provision of Georgia law relating to the sentencing of first offenders. 9
Subsection (c) (1) of OCGA § 17-10-6.2 further provides that “[i]n the court’s discretion, the court may deviate from the mandatory minimum sentence as set forth in subsection (b) of this Code section, or any portion thereof, provided that”
Ultimately the trial court ruled that Tew satisfied all six requirements of the statute and deviated from the mandatory sentence guidelines of OCGA § 17-10-6.2 (b) for the purpose of sentencing Tew to a probated sentence. However, it found that Tew was not eligible for first offender status, finding that the phrase “or any portion thereof” in subsection (c) (1) applied only to the first two sentences of subsection (b) setting forth mandatory minimum sentence guidelines, and not to the final sentence of subsection (b), which precludes defendants convicted of certain enumerated sexual offenses from receiving first offender status.
Tew argues that the phrase “or any portion thereof” in subsection (c) (1) refers to the entirety of subsection (b) and not simply to the first two sentences referring to the mandatory minimum sentence guidelines. We disagree.
When considering the meaning of a statute, we apply the following analysis:
First, courts should construe a statute to give sensible and intelligent effect to all of its provisions and should refrain, whenever possible, from construing the statute in a way that renders any part of it meaningless. Second, a court’s duty is to reconcile, if possible, any potential conflicts between different sections of the same statute, so as to make them consistent and harmonious. Third, in construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole.11
With these principles in mind, we find that it is clear from the grammatical construction and the punctuation of OCGA § 17-10-6.2 (c) (1) that the legislature intended the “or any portion thereof” language of subsection (c) (1) to modify the entire phrase directly preceding it, which states, “the court may deviate from the mandatory minimum sentence as set forth in subsection (b) of this Code section.”
Moreover, “a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes in pari materia, are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.”
Judgment affirmed.
Notes
OCGA § 16-6-3 (a).
Tew was indicted with the following charges: two counts of aggravated child molestation, child molestation, statutory rape, interference with custody, contributing to the delinquency of a minor, interstate interference with custody, theft by receiving stolen property, and theft by taking. After Tew pled guilty to statutory rape, the remaining eight charges were dismissed by the State.
OCGA § 16-6-3 (a) provides:
A person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim.
OCGA § 16-6-3 (b) provides that if a person convicted of statutory rape is 21 years of age or older, “such person shall be punished by imprisonment for not less than ten nor more than 20 years. Any person convicted under this subsection of the offense of statutory rape shall, in addition, be subject to the sentencing and punishment provisions of Code Section 17-10-6.2.”
Camaron v. State,
(Citation omitted.) Planas v. State,
(Citation and punctuation omitted.) Nunnally v. State,
(Citations omitted.) Camarón, supra.
(Emphasis supplied.)
(Emphasis supplied.)
(Citation omitted.) Fulton County v. Colon,
OCGA § 17-10-6.2 (c) (1).
(Emphasis supplied.)
(Footnote omitted.) Aimwell, Inc. v. McLendon Enterprises,
OCGA § 42-8-60 (d) (2) provides: “The court shall not sentence a defendant under the provisions of this article who has been found guilty of or entered a plea of guilty or a plea of nolo contendere for . . . [a] sexual offense as such term is defined in Code Section 17-10-6.2.” OCGA § 17-10-6.2 (a)’s definition of “sexual offense” includes “[statutory rape, as defined in Code Section 16-6-3, if the person convicted of the crime is 21 years of age or older.” OCGA § 17-10-6.2 (a) (4).
Supra.
Id. at 52 (1). Accord Ailara v. State,