Dewaymon Harris v. State

• Court: Court of Appeals of Georgia
• Decided: August 31, 2022
• Docket: A22A0736
• Status: Published

Opinion

THIRD DIVISION DOYLE, P. J., REESE, J., and SENIOR APPELLATE JUDGE PHIPPS

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

August 31, 2022

In the Court of Appeals of Georgia A22A0736. HARRIS v. THE STATE.

DOYLE, Presiding Judge.

In 2003, Dewaymon Harris pleaded guilty to one count of child molestation

and was sentenced to twenty years, serving seven in incarceration consecutive to any

sentence he was currently serving. In 2021, Harris filed a motion to vacate or correct

a void sentence, which the trial court denied, finding that he should have raised the

issue previously. Harris now appeals, arguing that the trial court erred by denying his

motion because it improperly relied on non-final convictions in order to enhance his

instant sentence. For the reasons that follow, we affirm.

The record shows that Harris pleaded guilty to this charge and was sentenced

on September 15, 2003. Harris, who was 17 at the time of the offense, had sexual

intercourse with an individual who was 13. At the sentencing hearing, the court explained that the maximum sentence for the offense was 20 years confinement. The

State had filed a recidivist motion based on two felony convictions, which the State

maintained required that the trial court sentence Harris to the maximum sentence with

discretion to probate portions of the sentence. Thereafter, relying on the recidivist

statute and the two felony convictions presented by the State, the court sentenced

Harris to 20 years, to serve 7 in incarceration consecutive to any sentence he was

currently serving.

Harris filed numerous post-judgment motions over the years, including an

omnibus motion to, inter alia, correct a void sentence, which the trial court denied.

He also filed a motion for out-of-time appeal in April 2020, raising numerous

arguments, which motion was denied and appealed to this Court. We affirmed the

trial court’s order in an unpublished opinion.1 After that decision, Harris filed a

motion to clarify sentence, asking the court to clarify if his instant sentence should

be concurrent to his other sentences because the language in the sentencing order

stated that his instant sentence should run consecutively to those he was “now

serving,” but he was not serving the two sentences at issue at the time the order was

issued. The trial court dismissed that motion, which dismissal Harris did not appeal.

1 See Harris v. State, Case No. A20A2087 (decided Feb. 18, 2021).

2 Thereafter, Harris filed the instant motion to vacate or correct a void sentence on

November 12, 2021. Although some of the language therein refers to ineffective

assistance of counsel, Harris raises his claim for the first time that his sentence was

void because it was enhanced based on non-final convictions. The trial court denied

this motion on the basis of res judicata.

1. As an initial matter, the State contends that res judicata applies to Harris’s

arguments because he could have raised them in one of his prior appeals. We disagree

in part. Harris did not raise the void sentence argument in his prior motions before the

trial court. And while he may have been able to bring the claim at that time, the nature

of a void sentence is that it is not authorized by the law.2 Therefore, we decline to

apply the doctrine of res judicata to the portion of this appeal regarding that

argument. To the extent that Harris raises any ineffective assistance of counsel claims

on appeal, however, we affirm the trial court’s judgment as to those issues.

2 See, e.g., Bryant v. State, 363 Ga. App. 349, 350-352 (1) (870 SE2d 33) (2022) (declining to apply res judicata to a void sentence claim that was not previously argued despite the fact that the defendant previously had challenged his sentence through other arguments). Accord Ross v. State, 310 Ga. App. 326, 328 (713 SE2d 438) (2011) (defendant’s claim of a void sentence was barred by res judicata because he raised the argument in a previous motion and failed to appeal the trial court’s denial of that motion).

3 2. Turning to the merits of Harris’s void sentence argument, he contends that

two non-final convictions were improperly used to enhance his sentence under the

recidivist statute. The convictions at issue were affirmed by this Court in Case

Number A04A1851 and Case Number A05A1091.3 The State concedes that these

convictions were not final at the time that Harris was sentenced in this case and

therefore could not have been used to support a recidivist enhancement.4

That said, the sentence imposed by the trial court was within the statutory range

of punishment regardless of any improper recidivist enhancements,5 and the trial court

had discretion to run the sentence consecutive to the other sentences Harris had been

3 See Harris v. State 273 Ga. App. 90 (614 SE2d 189) (2005); Harris v. State, 269 Ga. App. XXVI (Case No. A04A1851, unreported). 4 See Allen v. State, 286 Ga. 273, 275-276 (2) (687 SE2d 417) (2009) (“[a] conviction is final when’ the defendant has been adjudicated guilty and has been sentenced, and no appeal on the prior charges remains pending’”), overruled on other grounds by Hillman v. Johnson, 297 Ga. 609, 612 n.3 (2) (a) (774 SE2d 615) (2015). 5 See OCGA § 16-6-4 (b) (2003) (“A person convicted of a first offense of child molestation shall be punished by imprisonment for not less than five nor more than [twenty] years.”)

4 ordered to serve.6 Therefore, Harris’s sentence was not void, and the trial court did

not err by denying the motion to vacate or correct his sentence as void.7

Judgment affirmed. Reese, J., and Senior Appellate Judge Herbert E. Phipps

concur.

6 See OCGA § 17-10-10 (a) (2003) (explaining that if “at one term of court a person is convicted on more than one indictment or accusation, or on more than one count thereof, and sentenced to imprisonment, the sentences shall be served concurrently unless otherwise expressly provided therein”). See also State v. Riggs, 301 Ga. 63, 68 (2) (a) (799 SE2d 770) (2017). We note that whether the trial court would have chosen to order Harris to serve a different sentence if it had been properly counseled as to the finality of the prior convictions does not mean this sentence is void. 7 See, e.g., Nordahl v. State, 306 Ga. 15 (829 SE2d 99) (2019) (an appellate court may affirm a lower court decision despite incorrect reasoning under the right- for-any-reason doctrine), citing Bunn v. State, 291 Ga. 183, 193 (2) (d) (728 SE2d 569) (2012).