Mark Stephan Newsome, Jr. v. State ( 2020 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 13, 2020
The Court of Appeals hereby passes the following order:
A21A0473. MARK STEPHAN NEWSOME, JR. v. THE STATE.
In 2008, Mark Stephan Newsome, Jr. was convicted of two counts of
aggravated assault (OCGA § 16-5-21), one count of armed robbery (OCGA § 16-8-
41), two counts of false imprisonment (OCGA § 16-5-41), one count of burglary
(OCGA § 16- 7-1), one count of theft by taking (OCGA § 16-8-2), and one count of
possession of a firearm during a felony (OCGA § 16-11-106). We affirmed his
convictions on appeal but remanded for resentencing on Count 2 (aggravated assault)
and Count 3 (armed robbery). See Newsome v. State, 324 Ga. App. 665 (751 SE2d
474) (2013). In 2016, Newsome, appearing pro se, filed a motion to vacate a void
sentence. The trial court denied his motion, and Newsome appeals from that order.
We, however, lack jurisdiction.
Under OCGA § 17-10-1 (f), a court may modify a sentence during the year
after its imposition or within 120 days after remittitur following a direct appeal,
whichever is later. Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010).
Once, as here, this statutory period has expired, a trial court may modify only a void
sentence. Id. A sentence is void if the court imposes punishment that the law does not
allow. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). “Motions to vacate
a void sentence generally are limited to claims that – even assuming the existence and
validity of the conviction for which the sentence was imposed – the law does not
authorize that sentence, most typically because it exceeds the most severe punishment
for which the applicable penal statute provides.” von Thomas v. State, 293 Ga. 569,
572 (2) (748 SE2d 446) (2013). When a sentence is within the statutory range of
punishment, it is not void. Jones, 278 Ga. at 670. Moreover, a direct appeal does not
lie from the denial of a motion to modify a sentence filed outside the statutory time
period unless the motion raises a colorable claim that the sentence is, in fact, void.
Frazier, 302 Ga. App. at 348.
In his motion, Newsome argued that his sentence is void due to the failure to
merge Count 1 (aggravated assault) with Count 3 (armed robbery). Such a merger
argument is a challenge to a conviction rather than a sentence, and thus does not
constitute a valid void sentence claim. See Williams v. State, 287 Ga. 192, 193-194
(695 SE2d 244) (2010). Newsome also argued that the evidence in support of his
burglary conviction is insufficient, which is also a challenge to his conviction rather
than his sentence. The Supreme Court has made clear that a motion seeking to
challenge an allegedly invalid or void judgment of conviction “is not one of the
established procedures for challenging the validity of a judgment in a criminal case”
and that an appeal from the denial of such a motion is subject to dismissal. Roberts
v. State, 286 Ga. 532 (690 SE2d 150) (2010).
Newsome’s remaining claims – that his sentence was unduly harsh and that the
trial court should have imposed concurrent sentences – are also not valid void
sentence arguments. Arguments pertaining to the severity of sentences do not
constitute valid void sentence claims absent a colorable claim that a sentence lies
outside the statutory range of punishment. See Frazier, supra. Additionally, a trial
court has discretion to impose consecutive or concurrent sentences for separate
offenses, as long as the sentence for each offense is within the statutory limits. See
Rooney v. State, 287 Ga. 1, 3-6 (3) (690 SE2d 804) (2010); see also OCGA § 17-10-
10 (a); Dowling v. State, 278 Ga. App. 903, 904 (630 SE2d 143) (2006). Here, each
sentence Newsome received is within the statutory limits: 20 years for aggravated
assault, 15 years for armed robbery, 5 years for false imprisonment, 15 years for
burglary, 10 years for theft by taking, and 5 years for possession of a firearm during
the commission of a felony. See OCGA §§ 16-5-21 (b); 16-8-41 (b); 16-5-41 (b); 16-
7-1 (b); 16-8-12 (a) (1); 16-11-106 (b). Accordingly, Newsome’s appeal is hereby
DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
11/13/2020
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.