Parrott v. State ( 2021 )

In the Supreme Court of Georgia
Decided: October 5, 2021
S21A0753. PARROTT v. THE STATE.
WARREN, Justice.
Jimmy Lloyd Parrott was convicted for, among other things,
fleeing or attempting to elude a police officer in violation of OCGA
§ 40-6-395 (b) (5). After his initial probationary sentence for that
offense was deemed void, he was resentenced to five years in prison.
Parrott appeals from that resentencing, challenging the
constitutionality of the sentencing provision of OCGA § 40-6-395 (b)
(5) under the Equal Protection Clause. Parrott also contends that
his resentencing violated the constitutional prohibition on double
jeopardy. For the following reasons, we affirm.
1. In 2014, Parrott pleaded guilty to six traffic-related offenses,
including being a “habitual violator” under OCGA § 40-5-58 and
felony fleeing or attempting to elude a police officer, in violation of
OCGA § 40-6-395 (b) (5). In accordance with a negotiated plea
agreement, the trial court sentenced Parrott to a combination of
prison time, probation, and fines. As relevant to this appeal, Parrott
received a sentence of five years, with two to serve in prison, for the
habitual violator offense, and a consecutive sentence of five years’
probation, plus a $5,000 fine, for felony fleeing.
After he completed his first sentence and began serving the
consecutive sentence for felony fleeing, Parrott moved to vacate as
void the probation portion of that sentence, arguing that the
applicable statute, OCGA § 40-6-395 (b) (5), did not authorize
probation. 1 Parrott insisted, however, that the fine portion was still
valid, so there was no need for resentencing. The trial court agreed
that the probation portion of Parrott’s sentence was void, but it
vacated his entire sentence for felony fleeing—including the fine
That statute provides, in relevant part:
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Any person violating the provisions of [this subsection] . . . shall be
guilty of a felony punishable by a fine of $5,000.00 or imprisonment
for not less than one year nor more than five years or both. . . .
Following adjudication of guilt or imposition of sentence for a
violation of [the enumerated offense provisions], the sentence shall
not be suspended, probated, deferred, or withheld[.]
OCGA § 40-6-395 (b) (5) (emphasis supplied).
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portion—and announced its intent to resentence Parrott on that
count.
Parrott objected to the resentencing, contending, among other
things, that resentencing him for felony fleeing would violate the
constitutional prohibition on double jeopardy and that the
sentencing provision of OCGA § 40-6-395 (b) (5) was
unconstitutional because it violated the Equal Protection Clause of
the Fourteenth Amendment to the United States Constitution. The
trial court overruled Parrott’s objections but gave him a chance to
seek the withdrawal of his guilty plea, which Parrott declined. After
a sentencing hearing, the court resentenced Parrott to five years in
prison, without a fine.
2. We first address Parrott’s claim that OCGA § 40-6-395 (b)
(5) is unconstitutional under the Equal Protection Clause. In that
regard, Parrott argues that OCGA § 40-6-395 (b) (5) on its face treats
him differently than others in a similar situation because, he says,
that provision mandates prison time for indigent defendants—like
himself—who are unable to pay the $5,000 fine, whereas those who
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can afford the fine can avoid a prison sentence. Parrott’s argument
is without merit.
Even if Parrott is correct that the Equal Protection Clause
prohibits differentiating between indigent and non-indigent
defendants in the way he claims—a question we need not decide
here—nothing in the plain language of OCGA § 40-6-395 (b) (5)
conditions the imposition of a fine on the defendant’s ability to pay
or otherwise treats indigent defendants differently from those who
are not indigent. See OCGA § 40-6-395 (b) (5); Nicely v. State, 291
Ga. 788, 792 (733 SE2d 715) (2012) (“[T]o show a denial of equal
protection, one first must demonstrate that the law treats him
differently than similarly situated persons.”). Moreover, nothing in
the record indicates that the sentencing court imposed a prison term
on Parrott because he could not afford to pay a $5,000 fine, or that
Parrott could have averted a prison sentence if he had demonstrated
an ability to pay a fine. Accordingly, the trial court properly
overruled Parrott’s objection to resentencing based on equal
protection grounds.
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3. Parrott alternatively contends that, when the trial court
resentenced him for felony fleeing, it imposed multiple punishments
for a single crime in violation of the constitutional prohibition
against double jeopardy. See Medina v. State, 309 Ga. 432, 435 (844
SE2d 767) (2020) (noting that the double jeopardy clauses of both
the federal and state constitutions protect the defendant from,
among other things, “multiple punishments for the same offense”)
(citation and punctuation omitted). 2
As an initial matter, Parrott did not receive “multiple
punishments for the same offense” simply by virtue of being
resentenced. A trial judge has the authority to “correct a void
sentence at any time,” Rooney v. State, 287 Ga. 1, 2 (690 SE2d 804)
(2010) (citation and punctuation omitted), and “a sentence is void if
2 See U.S. Const. amend. V (“No person shall . . . be subject for the same
offence to be twice put in jeopardy of life or limb[.]”); Ga. Const. Art. I, Sec. I,
Par. XVIII (“No person shall be put in jeopardy of life or liberty more than once
for the same offense except when a new trial has been granted after conviction
or in case of mistrial.”). We have previously noted that “it is possible that the
federal and state [double jeopardy] provisions carry different meanings” in
light of their textual differences. State v. Jackson, 306 Ga. 626, 631 n.4 (831
SE2d 798) (2019). But neither party in this case draws “any meaningful
distinctions between the two provisions in their arguments before this Court,”
so we do not consider any such distinctions. See id. at 631 n.4.
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the court imposes punishment that the law does not allow.” von
Thomas v. State, 293 Ga. 569, 571 (748 SE2d 446) (2013) (citation
and punctuation omitted). On appeal, neither party disputes that
Parrott’s original sentence of five years’ probation for felony fleeing
was void, and we agree with that conclusion based on OCGA § 40-6-
395 (b) (5)’s express textual prohibition on the imposition of
probation for a violation of that statute. See OCGA § 40-6-395 (b)
(5) (“Following adjudication of guilt or imposition of sentence for a
violation of [the enumerated offense provisions], the sentence shall
not be suspended, probated, deferred, or withheld[.]”) (emphasis
supplied). Thus, the trial court was authorized to correct the void
sentence it previously imposed, including by resentencing Parrott on
that count. See Rooney, 287 Ga. at 2. See also Dennis v. State, 300
Ga. 457, 459 (796 SE2d 275) (2017) (because the defendant’s original
sentence for a particular offense was void, “the trial court was free
to resentence him” for that offense).
Moreover, the mere fact that Parrott’s new sentence was more
severe than the original sentence also does not violate double
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jeopardy protections. We have stated that, in the multiple-
punishment context, the Double Jeopardy Clause of the Fifth
Amendment protects a defendant’s “legitimate ‘expectation of
finality in his [original] sentence.’” Stephens v. State, 289 Ga. 758,
764 (716 SE2d 154) (2011) (quoting United States v. DiFrancesco,
449 U.S. 117, 136 (101 SCt 426, 66 LE2d 328) (1980)). See also
Wilford v. State, 278 Ga. 718, 719-720 (606 SE2d 252) (2004). But a
convicted defendant, like Parrott, “has neither a vested right to nor
a reasonable expectation of finality as to a pronounced sentence
which is null and void.” Hulett v. State, 296 Ga. 49, 54 (766 SE2d 1)
(2014) (citing Bryant v. State, 229 Ga. App. 534, 535 (494 SE2d 353)
(1997) (rejecting double jeopardy claim where the trial court vacated
the defendant’s original sentence as void and imposed a new, longer
sentence in compliance with the sentencing statute)); Strickland v.
State, 301 Ga. App. 272, 274 (687 SE2d 221) (2009) (defendant had
no reasonable expectation in the finality of a prison-only sentence
because the applicable statute imposed a mandatory fine in addition
to imprisonment). Cf. Wilford, 278 Ga. at 720 (holding that no
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double jeopardy violation occurred where the defendant was
resentenced to a longer term after the trial court determined that
his original sentence was improperly imposed under the First
Offender Act).3
Although Parrott concedes that his probation sentence for
felony fleeing was void, he contends that the trial court was not
authorized to resentence him because a $5,000 fine by itself, without
imprisonment, is a legal sentence for felony fleeing. See OCGA § 40-
6-395 (b) (5). He thus argues that the trial court was required under
Georgia law to vacate only the void portion of the sentence (i.e.,
probation) and leave the valid portion (the fine) as the sole
remaining sentence. In other words, Parrott argues that the trial
court was required to do nothing more and nothing less than excise
the void portion of the sentence. This approach, however, is not
compelled by our precedent.
3 The record shows that Parrott’s new sentence for felony fleeing includes
credit for the time he had already served on probation for that offense before
being resentenced.
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Generally speaking, Georgia law gives trial judges great
discretion in imposing a sentence within statutory parameters. See
Tuggle v. State, 305 Ga. 624, 628 (825 SE2d 221) (2019) (“Generally
speaking, trial courts have the discretion to impose sentence within
the parameters prescribed by a statute and if the sentence is within
the statutory limits, the appellate courts will not review it.”)
(citation and punctuation omitted); Rooney, 287 Ga. at 3 (“The
discretionary assessment of punishment within legislatively
prescribed boundaries has long been ingrained and accepted in
American jurisprudence.”) (citation and punctuation omitted); State
v. Riggs, 301 Ga. 63, 68-70 (799 SE2d 770) (2017) (stating that,
although the applicable sentencing statute did not expressly
authorize a partially concurrent and partially consecutive sentence,
“[w]e find within the law no limitation on this broad [sentencing]
discretion” precluding such a “hybrid” sentence, and “in construing
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other statutes related to sentencing, we have found that a trial
court’s discretion is limited only by an express legislative act”).4
We acknowledge that this Court’s handling of sentences that
could be characterized as partially void may appear to be
inconsistent. For example, in several of our cases where part of a
sentence—such as a parole condition—was deemed void, we have
held that only the void part (i.e., the improper parole condition)
4 The discretion traditionally afforded to trial courts in sentencing is also
reflected in the way we have handled cases of merger error where resentencing
is required. See, e.g., Cowart v. State, 294 Ga. 333, 336 (751 SE2d 399) (2013)
(“Under our precedent, the decision as to which of the two felony murder
verdicts should be deemed vacated—a decision that may affect which other
verdicts merge and thus what other sentences may be imposed—is left to the
discretion of the trial court on remand.”); McClellan v. State, 274 Ga. 819, 820-
821 (561 SE2d 82) (2002) (declining to establish “a policy of appellate
sentencing” and remanding the case for the trial court “to exercise its discretion
in re-sentencing” the defendant). See also, e.g., Lay v. State, 305 Ga. 715, 722
(827 SE2d 671) (2019) (“We . . . vacate both felony murder convictions and
sentences and remand the case for the trial court to enter a conviction and
sentence on only one of them and to adjust any affected convictions and
sentences accordingly.”). Notably, a claim of merger error differs in some
respects from a challenge to a void sentence: a claim of merger error is a
challenge to a conviction and implicates the trial court’s authority to impose a
sentence in the first place, but “a challenge to a void sentence presupposes that
the trial court was authorized to sentence the defendant but the sentence
imposed was not allowed by law.” Williams v. State, 287 Ga. 192, 193 (695
SE2d 244) (2010) (emphasis in original).
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needed to be vacated. See, e.g., Humphrey v. State, 297 Ga. 349, 351
(773 SE2d 760) (2015) (“[The void] provision of the sentence—but
only that provision—must be vacated.”); Ellison v. State, 299 Ga.
779, 781 (792 SE2d 387) (2016) (same).5 In other, substantially
similar cases, we have vacated an entire sentence and remanded for
resentencing. See, e.g., Jackson v. State, 306 Ga. 266, 277 (830 SE2d
99) (2019) (holding that a sentence containing an improper parole
condition “must be vacated and the case remanded to the trial court
with direction to enter a legal sentence”) (citation and punctuation
omitted); Funderburk v. State, 276 Ga. 554, 555 (580 SE2d 234)
(2003) (same). In neither line of cases, however, have we held that
a particular approach was the exclusive approach a trial court must
take to appropriately exercise the broad discretion it is generally
afforded in resentencing.
5 As we read it, the language in Humphrey and Ellison—that “only” the
void provision “must be vacated,” see Humphrey, 297 Ga. at 351; Ellison, 299
Ga. at 781—merely emphasized which part of a sentence on a particular count
the trial court was required to vacate, as opposed to limiting the trial court’s
sentencing discretion on remand.
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In that vein, we generally cannot say that a trial court abuses
its discretion when it corrects a “partially void” sentence on a
particular count by vacating that sentence in its entirety and
imposing a new sentence on that count within the statutory
parameters. See, e.g., Riggs, 301 Ga. at 68-70 (affirming a
sentencing structure not expressly authorized by statute and citing
the trial court’s “broad discretion” in sentencing); Rooney, 287 Ga. at
3-4 (discussing the discretion afforded to trial courts in sentencing). 6
In light of the foregoing principles, we conclude that the trial
court in this case did not abuse its discretion when it corrected
Parrott’s partially void sentence for felony fleeing by vacating that
sentence in its entirety and imposing a new sentence on that count
6 We emphasize that our decision in this case concerns only the trial
court’s discretion to resentence on the particular count on which the sentence
is deemed partially or wholly void. We express no opinion as to whether the
trial court could also resentence on other counts, for which the sentences are
not void, to preserve an overall sentencing scheme. See, e.g., Kaiser v. State,
285 Ga. App. 63, 64 & n.1 (646 SE2d 84) (2007) (stating that the Court of
Appeals previously had vacated defendant’s sentence “in its entirety” (that is,
on all counts), and noting that “[i]n many circumstances it is appropriate to
view the final negotiated plea agreement as a ‘package’ deal, the terms of which
should not be treated in isolation from one another but rather as a cohesive
whole”) (citation and punctuation omitted).
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within the parameters of OCGA § 40-6-395 (b) (5). And because the
trial court was authorized to resentence Parrott, we cannot say that
Parrott had a legitimate “expectation of finality” in his original
sentence, and so his double-jeopardy claim fails. See Hulett, 296 Ga.
at 54; Stephens, 289 Ga. at 764.
Judgment affirmed. All the Justices concur.
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