Johnson v. Williams, Warden

304 Ga. 771

• Court: Supreme Court of Georgia
• Decided: December 10, 2018
• Docket: S18A1311
• Status: Published

Opinion

304 Ga. 771 FINAL COPY

S18A1311. JOHNSON v. WILLIAMS.

BLACKWELL, Justice. In 2006, Terrence Johnson was tried by a Floyd County jury and

convicted of armed robbery, aggravated assault with intent to rob, and

unlawful possession of a firearm during the commission of a crime. Johnson

appealed, and the Court of Appeals affirmed his convictions, but it found that

the trial judge failed to exercise his sentencing discretion and remanded the

case for resentencing. See Johnson v. State, 285 Ga. App. 590, 591 (3) (646

SE2d 760) (2007). Johnson was sentenced to concurrent terms of 20 years

(13 years of imprisonment, followed by seven years on probation) for armed

robbery and aggravated assault with intent to rob, and a consecutive term of

five years on probation for unlawful possession of a firearm during the

commission of a crime. In 2011, Johnson filed a petition for a writ of habeas

corpus in the Superior Court of Tattnall County, alleging that the aggravated

assault with intent to rob merged with the armed robbery of which he was convicted, and he should not have been separately convicted of the

aggravated assault. The habeas court denied his petition, and Johnson

appeals.1 The State concedes that the aggravated assault and armed robbery

merged, and we agree. Accordingly, we reverse the denial of the writ of

habeas corpus and remand for the habeas court to issue a writ setting aside

the separate conviction and sentence for aggravated assault.

On the afternoon of October 11, 2005, Johnson entered a clothing store

in Rome owned by Debbie Graham. Johnson pulled a gun from under his

shirt and put the gun to Graham’s right temple. Johnson moved Graham

around the counter and forced her to open the cash register, continuing to

hold the gun to her temple. Graham gave Johnson $150 from the cash

register. Johnson asked Graham why there was so little money, and Graham

responded that she had not done much business that day. At this point,

Johnson removed the gun from Graham’s temple and briefly swept it under

the counter in search of more valuables. Johnson then pressed the gun against

Graham’s neck and argued with Graham about the location of a safe and

Johnson filed an application for certificate of probable cause to appeal from the decision of the habeas court, see OCGA § 9-14-52, and we granted that application. 2 more money. When Graham responded that she did not have a safe or any

more money, Johnson fled the premises.

This Court applies the required evidence test adopted in Drinkard v.

Walker, 281 Ga. 211, 217 (636 SE2d 530) (2006) to determine if crimes

arising from the same conduct merge. In Drinkard we explained that “where

the same act or transaction constitutes a violation of two distinct statutory

provisions, the test to be applied to determine whether there are two offenses

or only one, is whether each provision requires proof of a fact which the

other does not.” (Citation and punctuation omitted.) Id. at 215. See also

OCGA § 16-1-6 (a crime is included in another when “[i]t is established by

proof of the same or less than all the facts or a less culpable mental state than

is required to establish the commission of the crime charged”). This Court

has held that an aggravated assault with intent to rob conviction ordinarily

merges with an armed robbery conviction when the convictions are based on

the same conduct. “[T]here is no element of aggravated assault with intent to

rob that is not contained in armed robbery.” Lucky v. State, 286 Ga. 478, 482

(689 SE2d 825) (2010). Both crimes require proof of the same elements.

Both require proof of intent to rob, and the “assault requirement” of

aggravated assault is the same as the taking “by use of an offensive weapon”

3 requirement of armed robbery. (Punctuation omitted.) Id. See also Curtis v.

State, 275 Ga. 576, 579 (571 SE2d 376) (2002), rev’d on other grounds,

Williams v. State, 287 Ga. 192 (695 SE2d 244) (2010).

The record of Johnson’s trial2 shows that the aggravated assault and

armed robbery occurred at the same time and resulted from the same conduct.

Johnson held Graham at gunpoint, took money from the cash register, and

fled from the store. Thus, the facts establishing the elements of armed

robbery also established the elements of aggravated assault with intent to rob,

and the two offenses merged. Further, the brief interval when Johnson pulled

the gun away from Graham, swept the gun under the counter, and then

pointed the gun back at Graham is not sufficient to establish two distinct acts

and authorize two separate convictions. Cf. Hightower v. State, 304 Ga. 755,

760 ( SE2d ) (2018) (evidence showed “two separate rounds of gunshots

— the first when the car was in the driveway and rolling toward the ditch,

and the second after the car had crashed into the ditch”); Oliphant v. State,

295 Ga. 597, 602 (759 SE2d 821) (2014) (evidence showed two separate acts

The record of his trial was made a part of the habeas record. Compare Martin v. McLaughlin, 298 Ga. 44, 46-47 (779 SE2d 294) (2015). 4 when “after the armed robbery and initial shooting, the assailants ran away,

but one then returned briefly and shot [the victim] in the leg”).

Because the aggravated assault with intent to rob merged with the

armed robbery, Johnson should not have been convicted and sentenced for

both offenses. His conviction for aggravated assault with intent to rob is void,

and it must be set aside. Merger claims like this one are cognizable in habeas

proceedings, see Nazario v. State, 293 Ga. 480, 488 (2) (d) (746 SE2d 109)

(2013), and the habeas court should have granted the writ as to the conviction

for aggravated assault. The judgment of the habeas court is reversed, and we

remand for the habeas court to issue a writ consistent with this opinion.

Judgment reversed and case remanded with direction. All the Justices

concur.

5 Decided December 10, 2018.

Habeas corpus. Tattnall Superior Court. Before Judge Stewart.

Sarah L. Gerwig-Moore, J. Scott Key, Matthew R. Gilbo, for appellant.

Christopher M. Carr, Attorney General, Patricia B. Attaway Burton,

Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney

General, Vanessa T. Sassano, Assistant Attorney General, for appellee.