Bryson v. State

828 S.E.2d 450, 350 Ga. App. 206
CourtCourt of Appeals of Georgia
DecidedMay 23, 2019
DocketA19A0342
StatusPublished
Cited by6 cases

This text of 828 S.E.2d 450 (Bryson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bryson v. State, 828 S.E.2d 450, 350 Ga. App. 206 (Ga. Ct. App. 2019).

Opinion

McMillian, Judge.

*206Richard S. Bryson was convicted by a jury of two counts of aggravated child molestation, child molestation, incest, statutory *207rape, and cruelty to children in the first degree.1 Bryson appealed, and this Court affirmed his conviction in an unpublished opinion on April 23, 2015. Bryson v. State , 332 Ga. App. XXVI (April 23, 2015) (unpublished). Three years later, on April 25, 2018, Bryson filed a pro-se motion to vacate his sentences on Counts 1 through 5, arguing that his sentences were illegal and unauthorized under OCGA §§ 16-6-4, 17-10-6.1, and 17-10-6.2. The trial court denied his motion, and Bryson filed this pro-se appeal. As more fully set forth below, we now affirm in part and vacate in part and remand for resentencing.

1. We first address our jurisdiction to consider this appeal. Bryson filed his "Motion to Vacate a Sentence that is Unauthorized by Law" approximately five and one half years after he was originally sentenced, arguing that he should have been sentenced under the post-July 1, 2006 amended versions of OCGA §§ 16-6-4 (c), 17-10-6.1 (5), and 17-10-6.2 (b), which he says means he should have been sentenced to 25 years and life on probation on the aggravated child molestation charge in Count 1, and split sentences on the remainder of the sex offense counts. This Court has previously held that a sentence that does not comply with the OCGA § 17-10-6.2 split sentence requirement is void. Hood v. State , 343 Ga. App. 230, 233 (1), 807 S.E.2d 10 (2017) ; Jackson v. State , 338 Ga. App. 509, 510, 790 S.E.2d 295 (2016). Because Bryson has raised at least a colorable claim that his sentence is void, we have jurisdiction over this direct appeal from the denial of his motion. Frazier v. State , 302 Ga. App. 346, 348, 691 S.E.2d 247 (2010)

2. Turning to the question of whether Bryson was properly sentenced under the pre-2006 versions of the applicable statutes, which did not contain split sentence requirements, or whether Bryson should have been sentenced under the post-2006 versions, including the newly enacted OCGA § 17-10-6.2 split sentencing statute, we begin with the general principle that "a crime is to be construed and punished according to the provisions of the law existing at the time of its commission." Fleming v. State , 271 Ga. 587, 590, 523 S.E.2d 315 (1999). As to each of the offenses here, the indictment, which was read to the jury at trial, charged that the acts of *208aggravated child molestation, child molestation, statutory rape, and incest occurred between January 1, 2005 and March 19, 2007, "the exact date of the offense being unknown." It is well established that where a charge alleges a range of dates wherein the crime occurred without alleging that the dates are material averments, "the State is not confined to proof of a single transaction, but may prove or attempt to prove any number of transactions of the nature charged within the period[.]" (Citation and punctuation omitted.) *453Bowman v. State , 184 Ga. App. 197, 197 (2), 361 S.E.2d 58 (1987). See also State v. Layman , 279 Ga. 340, 341, 613 S.E.2d 639 (2005).

At trial, the evidence showed that the victim was born on March 20, 1991, and that Bryson began committing the acts of oral and anal sodomy on her in 2000, when she was around nine years old. Bryson began having sexual intercourse with the victim when she was around 13 or 14 years old, which would have been sometime in 2005, and the acts of sodomy and intercourse continued until the victim became pregnant and gave birth to Bryson's child in the early part of 2010. Thus, the State presented evidence that the crimes occurred both before and after the July 1, 2006 effective date of the amendments to the relevant sentencing statutes, and the general principle that a crime is to be punished using the sentencing statutes at the time of its commission does not resolve the issue of whether the pre or post-July 2006 sentencing statutes apply.

This Court has previously analyzed similar cases involving uncertainty in sentencing under the analytical framework of the rule of lenity. Daniels v. State , 320 Ga. App. 340, 344 (3), 739 S.E.2d 773 (2013). As our Supreme Court has explained,

The rule of lenity applies where two or more statutes prohibit the same conduct while differing only with respect to the prescribed punishments. Dixon v. State , 278 Ga. 4, 7 (1) (d), 596 S.E.2d 147 (2004).

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Bluebook (online)
828 S.E.2d 450, 350 Ga. App. 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryson-v-state-gactapp-2019.