BROWN v. the STATE.

814 S.E.2d 738

• Court: Court of Appeals of Georgia
• Decided: May 3, 2018
• Docket: A18A0655
• Status: Published

Opinion

McMillian, Judge. On March 13, 2013, appellant Johnny M. Brown entered a negotiated guilty plea to five counts of child molestation. The trial court sentenced Brown to ten years to serve on Count 1 and probation on the remaining counts, for a total sentence of forty years, with the first ten years to be served in confinement and the remainder to be served on probation. On September 21, 2017, Brown filed a motion to correct void sentence based on the trial court's alleged failure to follow the requirements of former OCGA § 17-10-6.2 (b) in sentencing him. 1 The trial court denied Brown's motion, and Brown filed this appeal. As more fully set forth below, we now vacate Brown's sentence and remand for resentencing.

Under the version of the statute in effect in 2013 when Brown was sentenced, 2 the trial court was required to sentence Brown to a "split-sentence" consisting of a minimum term of imprisonment, as specified in the Code section for the offense of child molestation, followed by an additional probated sentence of at least one year on each offense. Former OCGA § 17-10-6.2 (b) ; State v. Riggs , 301 Ga. 63 , 64 (1), 799 S.E.2d 770 (2017) ; Jackson v. State , 338 Ga. App. 509 , 510-11, 790 S.E.2d 295 (2016) ; McCranie v. State , 335 Ga. App. 548 , 555 (4), 782 S.E.2d 453 (2016) ; Daniels v. State , 344 Ga. App. 190 , 191-92, 809 S.E.2d 473 (2018). Here, the trial court sentenced Brown to confinement only on Count 1 and to probation only on the remaining four counts. 3 The State concedes that Brown was not sentenced as required by *740 former OCGA § 17-10-6.2 (b), but points out that the trial court had discretion under subsection (c) of relevant version of that code section to deviate from the mandates of subsection (b) under certain circumstances, and urges us to remand to the trial court so that the trial court can make findings concerning whether it had reason to deviate in this case. However, subpart (2) of former OCGA § 17-10-6.2 (c) requires the trial court to issue a written order setting forth the reasons for any deviation in sentencing pursuant to this section, and the trial court did not enter such an order in this case. See Jackson , 338 Ga. App. at 510-11 , 790 S.E.2d 295 ; McCranie , 335 Ga. App. at 555-56 (4), 782 S.E.2d 453 ; Daniels , 344 Ga. App. at 191-92 , 809 S.E.2d 473 . In the absence of anything in the record to indicate that the trial court intended to deviate from the mandatory minimum as allowed by the applicable version of OCGA § 17-10-6.2 (c), 4 the proper remedy is to vacate the sentence and remand for resentencing.

Although Brown does not raise as error the probation only sentences for child molestation, 5 we also note that former OCGA § 17-10-6.2 (b) required that the sentence for any person convicted of a sexual offense include the mandatory minimum term of imprisonment specified in the code section for that offense and "no portion of the mandatory minimum sentence imposed shall be suspended, stayed, or probated ..." Former OCGA § 17-10-6.2 (b). As we explained above, there was no indication that the trial court entered written findings necessary to deviate from the mandatory minimum. Therefore, those sentences are void for this additional reason. Accordingly, we vacate Brown's sentence and remand to the trial court for entry of a new sentence on each count as required by former OCGA § 17-10-6.2 (b). 6

Sentence vacated and case remanded for resentencing.