Jamez Antwane Bryant v. State ( 2022 )

SECOND DIVISION
MILLER, P. J.,
HODGES and PIPKIN, 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.
https://www.gaappeals.us/rules
February 18, 2022
In the Court of Appeals of Georgia
A21A1377. BRYANT v. THE STATE.
PIPKIN, Judge.
Jamez Antwane Bryant appeals from the trial court’s order entered on January
7, 2021, denying his motion to vacate a void sentence.1 As more fully set forth below,
we vacate in part and remand for resentencing.
The record shows that Bryant entered an Alford2 plea to two counts of enticing
a child for indecent purposes; on October 25, 2018, the trial court sentenced Bryant
1
Bryant’s notice of appeal states that his appeal is from the “Orders” of the trial
court entered on January 7, 2021, and the record discloses that the trial court also
entered an order on that date denying Bryant’s motion to withdraw his plea. However,
Bryant does not enumerate any error as to the denial of that motion, and we do not
consider any contention related thereto. To the extent that Bryant argues that he
should be allowed to withdraw his plea because his sentence must be vacated, we
address that contention below.
2
North Carolina v. Alford, 400 U. S. 25 (91 SCt 160, 27 LE2d 162) (1970).
on each count to thirty years, twenty to serve in confinement and the remainder on
probation, to run concurrently. In the months following his conviction and
sentencing, Bryant filed multiple pro se motions, including motions to withdraw his
plea, a motion in arrest of judgment, motions to vacate or modify his sentence, and
motions for an out-of-time appeal. On April 26, 2019, the trial court entered a
consolidated order denying Bryant’s motions, and Bryant filed an untimely notice of
appeal from that order. That case was docketed in this Court as Case No. A20A0052,
and on August 5, 2019, we dismissed Bryant’s appeal for lack of jurisdiction. See
OCGA § 5-6-38 (a); Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995)
(“The proper and timely filing of a notice of appeal is an absolute requirement to
confer appellate jurisdiction on this Court.”) (citation and punctuation omitted).
Back in the trial court, Bryant continued to file multiple pro se motions,
including another motion for an out-of-time appeal, and the trial court denied his
motion on July 11, 2019. Bryant appealed to this Court, and his appeal was docketed
in this Court as Case No. A20A0147. However, based on principles of res judicata,
we concluded Bryant’s appeal was barred by our previous dismissal of his appeal in
Case No. A20A0052, and we once again dismissed his appeal.
2
Bryant, however, continued to file motions in the trial court, and on October
5, 2020, almost two years after he entered his Alford plea, Bryant filed a motion to
vacate a void sentence and another motion to withdraw his Alford plea. The trial court
denied his motions, and Bryant filed this appeal.3 On appeal, Bryant argues that the
trial court erred by denying his motion to vacate his sentence because the trial court
imposed an illegal condition of probation; additionally, although not raised in the
motion that is the subject of this appeal, Bryant also argues that the requirement that
he register as a sexual offender results in a sentence that exceeds the maximum
punishment allowed for the convicted offenses. Additionally, Bryant has twice moved
to amend his brief on appeal; in his first motion to amend, his raises a merger issue
and in his second motion to amend, he contends that the trial court’s failure to
consider his eligibility for a sentence below the minimum results in a void sentence.
As more fully set forth below, we now vacate the no-contact provision of his probated
sentence but find his other contentions unavailing.
1. We first inquire into our jurisdiction to consider this appeal. The State argues
that we should also dismiss Bryant’s appeal from the January 7, 2021, order because
3
As stated in footnote 1, Bryant does not raise any argument concerning the
denial of his motion to withdraw his plea in his brief on appeal.
3
Bryant previously filed motions to vacate or modify his sentence and his appeals
following the denial of his previous motions were dismissed. The resolution of this
issue turns on whether Bryant has in fact raised a colorable claim of a void sentence
that was not raised in his prior motions.
When a sentencing court imposes a sentence of imprisonment, its jurisdiction
to later modify or vacate the sentence is limited. The sentencing court generally has
jurisdiction to modify or vacate such a sentence for only one year following the
imposition of the sentence. OCGA § 17-10-1 (f). See also von Thomas v. State, 293
Ga. 569, 571 (2) (748 SE2d 446) (2013). However, “a sentencing court retains
jurisdiction to correct a void sentence at any time.” (Citation and punctuation
omitted.) Rutledge v. State, 360 Ga. App. 824, 830 (2) (861 SE2d 793) (2021). See
also von Thomas, 293 Ga. at 569, 572 (2); Rooney v. State, 287 Ga. 1, 2 (2) (690
SE2d 804) (2010). “A sentence is void if the court imposes punishment that the law
does not allow.” (Citation and punctuation omitted.) von Thomas, 293 Ga. at 571 (2).
State v. McCauley, 353 Ga. App. 94, 98 n.3 (834 SE2d 567) (2019); Harrison v.
State, 201 Ga. App. 577, 583 (5) (411 SE2d 738) (1991) (“A sentence or portion
thereof that is unauthorized by law is a nullity and void.”). “This is true even for
defendants who plead guilty because a defendant who knowingly enters into a plea
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agreement does not waive the right to challenge an illegal and void sentence.”
(Citation and punctuation omitted.) Rutledge, 360 Ga. App. at 830 (2).
Thus, in cases where the trial court has lost jurisdiction to vacate or modify a
sentence, a direct appeal from the denial of a motion to vacate a void sentence is
authorized only when the defendant has raised a colorable claim that his sentence is,
in fact, void. Munye v. State, 342 Ga. App. 680, 685 (1) (b) (803 SE2d 775) (2017);
see also Jones v. State, 278 Ga. 669, 671 (604 SE2d 483) (2004) (“Rulings on
pleadings asserting erroneous procedure or unfair treatment are not subject to direct
appeal because they are not rulings on whether the sentence is void.”). “Hence, if a
defendant does not raise a colorable void-sentence claim, his appeal is subject to
dismissal.”Munye, 342 Ga. App. at 685 (1) (b).
Notwithstanding that a void sentence may be challenged at any time and a
direct appeal from the denial of a motion raising a colorable claim of void sentence
is authorized, these principles are “subject to the equally well established principles
of res judicata and the law-of-the-case rule once the issue has been raised and ruled
upon.” (Citation and punctuation omitted.) Paradise v. State, 321 Ga. App. 371, 373
(740 SE2d 238) (2013). See also Ross v. State, 310 Ga. App. 326, 328 (713 SE2d
438) (2011) (while a void sentence is a nullity and may be vacated at any time, it is
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still subject to res judicata and law-of-the-case rule; defendant is not entitled to
multiple bites at the apple).
The State asserts that these principles apply here and that Bryant’s appeal
should be dismissed, arguing that “this issue has already had its day in court
previously.” In support of its argument, the State points to Bryant’s motion to modify
his sentence filed on March 1, 2019, and his motion to vacate and set aside void
conviction and sentence filed on May 5, 2019, as well as to the dismissal of his
appeals following the trial court’s denial of those motions. However, a review of
these motions, as well as other motions Bryant filed seeking to modify his sentence
or purporting to attack his sentence as void, shows that Bryant has not previously
raised the issue set out in his October 5, 2020 void sentence challenge which is the
subject of this appeal – that a condition of his probation is illegal and void – and that
such motion, for the first time, raised a colorable claim that at least a portion of
Bryant’s sentence is void. Sumner v. State, 284 Ga. App. 308, 312 (1) (643 SE2d 831)
(2007) ([W]here a condition of probation in a sentence is unauthorized, that portion
of the sentence is void.”) (citation and punctuation omitted). Accordingly, to the
extent that Bryant has raised a colorable claim of a void sentence, his appeal is
properly before us as to that issue and is not subject to dismissal.
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2. Turning to the merits, we first consider Bryant’s contention that the no-
contact provision imposed as a special condition of probation is overly broad and
lacks specificity.4 We agree.
A trial court has broad discretion in sentencing to impose conditions
reasonably related to the nature and circumstances of the offense and
rehabilitative goals of probation. But such conditions must be stated
with reasonable specificity to afford the probationer notice of the groups
and places he must avoid. And the conditions must not be so broadly
worded as to encompass groups and places not rationally related to the
purpose of the sentencing objective.
(Citation and punctuation omitted.) Grovenstein v. State, 282 Ga. App. 109, 111 (1)
(637 SE2d 821) (2006).
The record shows the trial court imposed the following special condition of
probation, which prohibited Bryant from having contact with minors:
You shall have no contact, whether directly in person or indirectly,
through any means of communication, with any child under the age of
eighteen (18), nor with any person unable to give consent because of
mental or emotional limitations. Neither shall you attempt contact with
4
The no-contact provision is set out in “Sex Offenders Special Conditions of
Probation” number 1.
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the aforementioned except under circumstances approved in advance
and in writing by the Court. If you have incidental contact with children,
you will be civil and courteous to the child and immediately remove
yourself from the situation. You will discuss the contact at your next
meeting with your Probation Officer.
This Court has previously rejected similar special conditions of probation. As
we explained in Ellis v. State, 221 Ga. App. 103, 104 (1) (470 SE2d 495) (1996), a
case also involving a sex offense against a child, while
it was reasonable for the trial court to regulate [defendant’s] contact with
children by imposing conditions prohibiting his association with groups
dealing with children and prohibiting his presence at certain locations
where children are present, . . . such conditions should be stated with
reasonable specificity so that [defendant] has notice of the groups and
locations he must avoid and so that the conditions are not so broadly
worded as to encompass groups and locations not rationally related to
the purpose of the sentencing objective.
Here, the special condition at issue failed to provide Bryant with sufficient
notice of the groups and places he was required to avoid and was so overbroad and
lacking in specificity that it “could be applied to prohibit [Bryant] from shopping at
virtually any store, visiting any restaurant, or literally going to any other location in
which [Bryant] would come into contact with the general public.” (Citation and
8
punctuation omitted.) Chaney v. State, 355 Ga. App. 737, 741 (c) (845 SE2d 704)
(2020). See also Harrell v. State, 253 Ga. App. 440, 441 (1) (559 SE2d 155) (2002)
(Special conditions of probation were vacated where they did not provide the required
notice of the groups and locations to avoid and were too broadly worded to be
rationally related to the purpose of the sentencing objectives.); Ellis, 221 Ga. App. at
104 (1). Further, “the trial court’s condition violates the principle that conditions must
not be so broadly worded as to encompass groups and locations not rationally related
to the purpose of the sentencing objective.” (Citation and punctuation omitted.)
Chaney, 355 Ga. App. at 741 (c), quoting Ellis, 221 Ga. App. at 104 (1). See also
Grovenstein, 282 Ga. App. at 111 (1). In sum, “it is clear that Georgia law does not
support the kind of universal special condition of probation, prohibiting contact with
an individual or particular cohort without limitation.” Chaney, 355 Ga. App. at 742
(c). Accordingly, the no-contact special condition of Bryant’s probation is vacated,
and the case is remanded to the trial court for resentencing as to the vacated
condition.
3. Bryant also contends that sex offender registration for life, which he will be
subjected to following his release from prison, see OCGA § 42-1-12, exceeds the
maximum punishment for his crimes in violation of OCGA § 17-10-1 (a) (1).
9
However, it has previously been recognized that such requirements are “regulatory
and not punitive in nature[.]” Rainer v. State of Ga., 286 Ga. 675, 676 (1) (690 SE2d
827) (2010).Thus, Bryant’s contention that the registration requirement is an illegal
“punishment” is unavailing since “current law does not deem registration as a sexual
offender to be punishment.” Hollie v. State, 287 Ga. 389, 391 (3) (696 SE2d 642)
(2010). Accordingly, this contention does not present a void sentence claim.
4. Bryant has also filed an amended brief seeking to raise a merger claim based
on the contention that he was improperly sentenced for the same crime – two counts
of enticing a child for indecent purposes. However, the indictment names a separate
victim in each count and, accordingly, there is no merger. Jones v. State, 290 Ga. 670,
672 (2) (725 SE2d 236) (2012) (“[T]he merger doctrine does not apply if each of the
charged crimes was committed against a different victim.”) (citation and punctuation
omitted). Bryant’s motion to amend his brief is denied.
5. Bryant filed a separate request to amend his brief to raise a contention that
his sentence is void because the trial court failed to consider imposing sentences
below the mandatory minimum. However, as we have previously explained, “[t]he
failure to deviate – or consider deviating – below a minimum sentence does not
render the sentence one that the law does not allow, so long as the sentences imposed
10
remain within the range of punishment permitted by law.” (Punctuation omitted.)
Jackson v. State, 338 Ga. App. 509, 510 (790 SE2d 295) (2016). Accordingly,
Bryant’s motion to amend his brief to raise this claim is also denied.
6. Lastly, we note that Bryant has requested we vacate his sentence and remand
for resentencing and to allow him to withdraw his plea. However, because we have
vacated only the no-contact special condition of Bryant’s probation and remanded
only for resentencing as to that provision, leaving the remainder of his sentence
intact, Bryant has no right to withdraw his plea. See Thompson v. State, 348 Ga. App.
807, 808-810 (824 SE2d 685) (2019); see also Hallford v. State, 289 Ga. App. 350,
351-352 (1) (657 SE2d 10) (2008).
Sentence vacated in part, and case remanded for resentencing. Miller, P. J.,
and Hodges, J., concur.
11