313 Ga. 598 FINAL COPY
S22A0174. POLANCO v. THE STATE.
ORDER OF THE COURT.
In November 2019, appellant Saul Polanco pleaded guilty to
felony murder, aggravated assault, possession of a knife during the
commission of a felony, and misdemeanor third-degree cruelty to
children. The amended final disposition was entered on December
17, 2019, and reflects that the malice murder count was nolle
prossed and that dispositions were entered as to the remaining
counts. Appellant did not file a timely notice of appeal, but on June
15, 2020, he filed a pro se motion for out-of-time appeal, which
appointed counsel amended. On April 1, 2021, the trial court entered
an order denying the motion for out-of-time appeal, and, after
appellant’s counsel filed a motion for vacatur and re-entry of the
order because she had not been served with it, the trial court vacated
and re-entered the order on September 13, 2021. On September 14,
2021, appellant’s counsel filed a notice of appeal. However, in Cook v. State, 313 Ga. ___ (___ SE2d ___) (2022),
this Court eliminated the judicially created out-of-time-appeal
procedure in trial courts, holding that a trial court is “without
jurisdiction to decide [a] motion for out-of-time appeal” on the merits
because “there was and is no legal authority for motions for out-of-
time appeal in trial courts.” Id. at ___ (5). Cook also concluded that
this holding is to be applied to “all cases that are currently on direct
review or otherwise not yet final[,]” id., and directed that “pending
and future motions for out-of-time appeals in trial courts should be
dismissed, and trial court orders that have decided such motions on
the merits . . . should be vacated if direct review of the case remains
pending or if the case is otherwise not final.” Id. at ___ (4).
Accordingly, the trial court’s September 13, 2021 order denying
appellant’s motion for out-of-time appeal is vacated, and this case is
remanded for the entry of an order dismissing appellant’s motion.
Appellant is advised that any subsequent attempt to appeal the trial
court’s order entering the judgment of conviction and denying his
motion for out-of-time appeal will likely be dismissed as untimely.
2 See OCGA § 5-6-38 (a). Furthermore, the trial court’s entry of an
order on remand dismissing appellant’s motion for out-of-time
appeal will be unlikely to present any cognizable basis for an appeal.
See Henderson v. State, 303 Ga. 241, 244 (811 SE2d 388) (2018);
Brooks v. State, 301 Ga. 748, 752 (804 SE2d 1) (2017). If appellant
believes that he was unconstitutionally deprived of his right to
appeal, he may be able to pursue relief for that claim through a
petition for habeas corpus, along with claims alleging deprivation of
his constitutional rights in the proceedings that resulted in his
conviction. See OCGA § 9-14-41 et seq. Appellant should be aware
of the possible application of the restrictions that apply to such
habeas corpus filings, such as the time deadlines provided by OCGA
§ 9-14-42 (c) and the limitation on successive petitions provided by
OCGA § 9-14-51.
All the Justices concur.
ELLINGTON, Justice, concurring.
After Saul Polanco fatally stabbed his wife, he entered a
negotiated guilty plea to felony murder predicated on aggravated
3 assault, along with other charges, on November 19, 2019. After the
time allowed for filing a notice of appeal, Polanco filed pro se a
motion for out-of-time appeal, which the trial court denied. The
Court is vacating the trial court’s order denying Polanco’s motion for
out-of-time appeal and remanding the case for dismissal of his
motion, consistent with our recent decision in Cook v. State, 313 Ga.
___, ___ (5) (___ SE2d ___) (2022). Although neither party has yet
challenged the validity of Polanco’s sentence, I wish to point out that
the trial court imposed a sentence for Polanco’s felony murder
conviction that is not allowed by Georgia law. Specifically, the trial
court sentenced Polanco on Count 2 to “[l]ife with [the] first 25
[y]ears to be served in confinement not eligible for parole, balance
probated[.]” This is an illegal and void sentence for a felony murder
conviction, as explained below, and is subject to being vacated.
Georgia’s Criminal Code provides: “A person convicted of the
offense of murder shall be punished by death, by imprisonment for
life without parole, or by imprisonment for life.” OCGA § 16-5-1 (e)
(1). Thus, for a conviction of felony murder, “death and
4 imprisonment for life, with or without the possibility of parole, are
the only sentences prescribed by law.” State v. Hanna, 305 Ga. 100,
103 (2) (823 SE2d 785) (2019). See also Humphrey v. State, 297 Ga.
349, 350 (773 SE2d 760) (2015) (“[T]he law only authorized the trial
court to sentence [the defendant for murder] to death, imprisonment
for life without any possibility of parole ever, or imprisonment for
life with the possibility of parole as soon as permitted by law.”).
OCGA § 17-10-1 (a) (1) (A), the Code section that grants the
power and authority to a judge, in fixing determinate criminal
sentences generally, to suspend or probate all or part of a sentence,
expressly excludes cases in which imprisonment for life, with or
without the possibility of parole, may be imposed.1 See Langley v.
State, 313 Ga. 141, 144-147 (2) (868 SE2d 759) (2022) (discussing
1 OCGA § 17-10-1 (a) (1) (A) provides:
Except in cases in which life imprisonment, life without parole, or the death penalty may be imposed, upon a verdict or plea of guilty in any case involving a misdemeanor or felony, and after a presentence hearing, the judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years which shall be within the minimum and maximum sentences prescribed by law as the punishment for the crime. The judge imposing the sentence is granted power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper[.]
5 penal statutes that include language expressly prohibiting
probation for all or some part of a sentence for particular offenses).
Thus, OCGA § 17-10-1 (a) (1) (A) does not authorize a trial court to
probate any part of a life sentence. See id.
At sentencing, the trial court expressed its intention “to deviate
from the mandatory minimum” sentence for felony murder, and it
imposed a split sentence including a term of imprisonment of 25
years followed by probation for life.2 This particular sentence
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313 Ga. 598 FINAL COPY
S22A0174. POLANCO v. THE STATE.
ORDER OF THE COURT.
In November 2019, appellant Saul Polanco pleaded guilty to
felony murder, aggravated assault, possession of a knife during the
commission of a felony, and misdemeanor third-degree cruelty to
children. The amended final disposition was entered on December
17, 2019, and reflects that the malice murder count was nolle
prossed and that dispositions were entered as to the remaining
counts. Appellant did not file a timely notice of appeal, but on June
15, 2020, he filed a pro se motion for out-of-time appeal, which
appointed counsel amended. On April 1, 2021, the trial court entered
an order denying the motion for out-of-time appeal, and, after
appellant’s counsel filed a motion for vacatur and re-entry of the
order because she had not been served with it, the trial court vacated
and re-entered the order on September 13, 2021. On September 14,
2021, appellant’s counsel filed a notice of appeal. However, in Cook v. State, 313 Ga. ___ (___ SE2d ___) (2022),
this Court eliminated the judicially created out-of-time-appeal
procedure in trial courts, holding that a trial court is “without
jurisdiction to decide [a] motion for out-of-time appeal” on the merits
because “there was and is no legal authority for motions for out-of-
time appeal in trial courts.” Id. at ___ (5). Cook also concluded that
this holding is to be applied to “all cases that are currently on direct
review or otherwise not yet final[,]” id., and directed that “pending
and future motions for out-of-time appeals in trial courts should be
dismissed, and trial court orders that have decided such motions on
the merits . . . should be vacated if direct review of the case remains
pending or if the case is otherwise not final.” Id. at ___ (4).
Accordingly, the trial court’s September 13, 2021 order denying
appellant’s motion for out-of-time appeal is vacated, and this case is
remanded for the entry of an order dismissing appellant’s motion.
Appellant is advised that any subsequent attempt to appeal the trial
court’s order entering the judgment of conviction and denying his
motion for out-of-time appeal will likely be dismissed as untimely.
2 See OCGA § 5-6-38 (a). Furthermore, the trial court’s entry of an
order on remand dismissing appellant’s motion for out-of-time
appeal will be unlikely to present any cognizable basis for an appeal.
See Henderson v. State, 303 Ga. 241, 244 (811 SE2d 388) (2018);
Brooks v. State, 301 Ga. 748, 752 (804 SE2d 1) (2017). If appellant
believes that he was unconstitutionally deprived of his right to
appeal, he may be able to pursue relief for that claim through a
petition for habeas corpus, along with claims alleging deprivation of
his constitutional rights in the proceedings that resulted in his
conviction. See OCGA § 9-14-41 et seq. Appellant should be aware
of the possible application of the restrictions that apply to such
habeas corpus filings, such as the time deadlines provided by OCGA
§ 9-14-42 (c) and the limitation on successive petitions provided by
OCGA § 9-14-51.
All the Justices concur.
ELLINGTON, Justice, concurring.
After Saul Polanco fatally stabbed his wife, he entered a
negotiated guilty plea to felony murder predicated on aggravated
3 assault, along with other charges, on November 19, 2019. After the
time allowed for filing a notice of appeal, Polanco filed pro se a
motion for out-of-time appeal, which the trial court denied. The
Court is vacating the trial court’s order denying Polanco’s motion for
out-of-time appeal and remanding the case for dismissal of his
motion, consistent with our recent decision in Cook v. State, 313 Ga.
___, ___ (5) (___ SE2d ___) (2022). Although neither party has yet
challenged the validity of Polanco’s sentence, I wish to point out that
the trial court imposed a sentence for Polanco’s felony murder
conviction that is not allowed by Georgia law. Specifically, the trial
court sentenced Polanco on Count 2 to “[l]ife with [the] first 25
[y]ears to be served in confinement not eligible for parole, balance
probated[.]” This is an illegal and void sentence for a felony murder
conviction, as explained below, and is subject to being vacated.
Georgia’s Criminal Code provides: “A person convicted of the
offense of murder shall be punished by death, by imprisonment for
life without parole, or by imprisonment for life.” OCGA § 16-5-1 (e)
(1). Thus, for a conviction of felony murder, “death and
4 imprisonment for life, with or without the possibility of parole, are
the only sentences prescribed by law.” State v. Hanna, 305 Ga. 100,
103 (2) (823 SE2d 785) (2019). See also Humphrey v. State, 297 Ga.
349, 350 (773 SE2d 760) (2015) (“[T]he law only authorized the trial
court to sentence [the defendant for murder] to death, imprisonment
for life without any possibility of parole ever, or imprisonment for
life with the possibility of parole as soon as permitted by law.”).
OCGA § 17-10-1 (a) (1) (A), the Code section that grants the
power and authority to a judge, in fixing determinate criminal
sentences generally, to suspend or probate all or part of a sentence,
expressly excludes cases in which imprisonment for life, with or
without the possibility of parole, may be imposed.1 See Langley v.
State, 313 Ga. 141, 144-147 (2) (868 SE2d 759) (2022) (discussing
1 OCGA § 17-10-1 (a) (1) (A) provides:
Except in cases in which life imprisonment, life without parole, or the death penalty may be imposed, upon a verdict or plea of guilty in any case involving a misdemeanor or felony, and after a presentence hearing, the judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years which shall be within the minimum and maximum sentences prescribed by law as the punishment for the crime. The judge imposing the sentence is granted power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper[.]
5 penal statutes that include language expressly prohibiting
probation for all or some part of a sentence for particular offenses).
Thus, OCGA § 17-10-1 (a) (1) (A) does not authorize a trial court to
probate any part of a life sentence. See id.
At sentencing, the trial court expressed its intention “to deviate
from the mandatory minimum” sentence for felony murder, and it
imposed a split sentence including a term of imprisonment of 25
years followed by probation for life.2 This particular sentence
suggests reliance on two provisions of OCGA § 17-10-6.1, which
provides for sentencing of persons convicted of serious violent
felonies, as defined in that Code section; felony murder is designated
as a serious violent felony. See OCGA § 17-10-6.1 (a) (1). First, the
split sentence, with probation for life following a defined term of
imprisonment, suggests reliance on OCGA § 17-10-6.1 (b) (2), which
2 At the guilty plea hearing, the trial court announced that, as to Count
2, felony murder, “as agreed to by the State and the [d]efense, the [c]ourt is going to deviate from the mandatory minimum and sentence [Polanco] to life, with the first 25 years to be served in confinement[,] and he will not be eligible for parole. . . . [H]e is to serve the full term of life on probation after he serves his 25 years [in prison].”
6 requires a sentence of “a mandatory minimum term of imprisonment
of 25 years, followed by probation for life” for persons convicted of
certain serious violent felonies.3 Paragraph (b) (2) lists the offenses
for which that sentence is required; the General Assembly omitted
felony murder from that list. Second, the trial court’s reference “to
deviat[ing] from the mandatory minimum” suggests reliance on
OCGA § 17-10-6.1 (e), which authorizes trial courts to “depart” from
mandatory minimum sentences for certain serious violent felonies
“when the prosecuting attorney and the defendant have agreed to a
3 OCGA § 17-10-6.1 (b) (2) provides:
Except as provided in subsection (e) of this Code section, the sentence of any person convicted of the serious violent felony of: (A) Kidnapping involving a victim who is less than 14 years of age; (B) Rape; (C) Aggravated child molestation, as defined in subsection (c) of Code Section 16-6-4, unless subject to the provisions of paragraph (2) of subsection (d) of Code Section 16-6-4; (D) Aggravated sodomy, as defined in Code Section 16- 6-2; or (E) Aggravated sexual battery, as defined in Code Section 16-6-22.2 shall, unless sentenced to life imprisonment, be a split sentence which shall include a mandatory minimum term of imprisonment of 25 years, followed by probation for life, and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court.
7 sentence that is below such mandatory minimum.”4 But the
authority to depart from a mandatory minimum sentence is limited
to cases where a mandatory minimum sentence for a particular
serious violent felony is “specified in” OCGA § 17-10-6.1.5 Murder is
not one of the serious violent felonies for which a mandatory
minimum sentence is specified in OCGA § 17-10-6.1. Thus, OCGA §
17-10-6.1 does not authorize a trial court to impose a sentence for a
murder conviction of 25 years in prison followed by probation for life,
nor does the Code section authorize a trial court to deviate from the
mandatory minimum sentence for murder set out in OCGA § 16-5-1
(e) (1), including by probating a portion of a sentence for murder. See
Langley, 313 Ga. at 146 (2) (“OCGA § 17-10-1 (a) (1) (A) excludes
4 OCGA § 17-10-6.1 (e) provides:
In the court’s discretion, the judge may depart from the mandatory minimum sentence specified in this Code section for a person who is convicted of a serious violent felony when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum. (Emphasis supplied.) 5 See, e.g., OCGA § 17-10-6.1 (b) (1) (mandatory minimum sentences for
kidnapping involving a victim who is 14 years of age or older and for armed robbery), (2) (mandatory minimum sentences for kidnapping involving a victim who is less than 14 years of age, rape, aggravated child molestation, aggravated sodomy, and aggravated sexual battery).
8 ‘cases in which life imprisonment, life without parole, or the death
penalty may be imposed’” from the power to probate sentences “and
also makes the power to probate sentences ‘subject to the provisions
of Code Sections 17-10-6.1 and 17-10-6.2,’ which limit the
availability of probation for serious violent felonies and sexual
offenses.”);6 see also Hanna, 305 Ga. at 102 (2); Humphrey, 297 Ga.
at 351.
6 OCGA § 17-10-6.2 provides in pertinent part:
(b) Except as provided in subsection (c) of this Code section, and notwithstanding any other provisions of law to the contrary, any person convicted of a sexual offense [as defined in subsection (a)] shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to such sexual offense. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the court. Any such sentence shall include, in addition to the mandatory term of imprisonment, an additional probated sentence of at least one year; provided, however, that when a court imposes consecutive sentences for sexual offenses, the requirement that the court impose a probated sentence of at least one year shall only apply to the final consecutive sentence imposed. No person convicted of a sexual offense shall be sentenced as a first offender pursuant to Article 3 of Chapter 8 of Title 42 or any other provision of Georgia law relating to the sentencing of first offenders. (c) (1) In the court’s discretion, the court may deviate from the mandatory minimum sentence as set forth in subsection (b) of this Code section, or any portion thereof, when the prosecuting attorney and the defendant have agreed to a
9 Furthermore, a person who is convicted of felony murder and
sentenced to life in prison pursuant to OCGA § 16-5-1 (e) (1) is not
eligible for parole until he has served 30 years in prison. See OCGA
§ 17-10-6.1 (c) (1).7 Thus, the trial court had no statutory authority
to enter a sentence making Polanco eligible for parole after serving
only 25 years in prison. Logically, there would seem to be no reason
to make a person convicted of murder eligible for parole, at the
discretion of the State Board of Pardons and Paroles, after serving
just 25 years in prison, while simultaneously making the convicted
murderer entitled to probation after that period of imprisonment,
given that the probation portion of the sentence would not require
sentence that is below such mandatory minimum or provided that [specified circumstances exist]. 7 OCGA § 17-10-6.1 (c) (1) provides:
Except as otherwise provided in subsection (c) of Code Section 42-9-39 [concerning the authority of the State Board of Pardons and Paroles], for a first conviction of a serious violent felony in which the accused has been sentenced to life imprisonment, that person shall not be eligible for any form of parole or early release administered by the State Board of Pardons and Paroles until that person has served a minimum of 30 years in prison. The minimum term of imprisonment shall not be reduced by any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections.
10 any such exercise of the power of executive clemency by the Parole
Board. Nevertheless, Polanco’s sentence is illegal to the extent it
purports to require only the first 25 years of his life sentence “to be
served in confinement not eligible for parole.”
Because the Criminal Code contains no provision authorizing
a split sentence including probation for a murder conviction, nor any
provision authorizing parole eligibility before 30 years served in
prison for a murder conviction, the trial court imposed a plainly
illegal sentence, and it is therefore void. See Hanna, 305 Ga. at 103
(2) (“A sentence is void if the court imposes punishment that the law
does not allow.” (citation and punctuation omitted)). The fact that
the State consented to Polanco’s sentence, including the probation
and parole provisions, is immaterial because, “as we have indicated
in a number of cases, the consent of the parties cannot validate a
void sentence.” Ellison v. State, 299 Ga. 779, 780 (792 SE2d 387)
(2016) (citation and punctuation omitted). See also Hanna, 305 Ga.
at 103 (2) (“[A] sentence which is not allowed by law is void, and its
illegality may not be waived.” (citation and punctuation omitted)).
11 A sentencing court “has the authority to correct a void sentence
at any time,” including by resentencing the defendant. Parrott v.
State, 312 Ga. 580, 582 (3) (864 SE2d 80) (2021) (citation and
punctuation omitted). The Court of Appeals has held that, “[w]here
a void sentence has been entered, it is as if no sentence has been
entered at all, and the defendant stands in the same position as if
he had pled guilty and not yet been sentenced. And pursuant to
OCGA § 17-7-93 (b), the defendant may withdraw his plea as of right
prior to sentencing.” Kaiser v. State, 285 Ga. App. 63, 66 (1) (646
SE2d 84) (2007). See OCGA § 17-7-93 (b) (“At any time before
judgment is pronounced, the accused person may withdraw the plea
of ‘guilty’ and plead ‘not guilty.’”). This Court quoted this passage
from Kaiser in Hanna, 305 Ga. at 106 (3), and cited Kaiser with
approval in Pierce v. State, 294 Ga. 842, 844 (1) (755 SE2d 732)
(2014), paraphrasing that a “void sentence is a nullity and [the]
defendant maintains his right to withdraw [his guilty] plea until he
is properly sentenced.” In my view, it follows from Hanna, Pierce,
and Parrott that, because Polanco has not been properly sentenced
12 for felony murder, he maintains his right under OCGA § 17-7-93 (b)
to withdraw his guilty plea upon vacatur of the void sentence and
that he can pursue vacatur of the void sentence by filing a motion in
the trial court to vacate his murder sentence.
I am authorized to state that Chief Justice Nahmias joins in
this concurrence.
Ordered April 19, 2022.
Murder. Gwinnett Superior Court. Before Judge Batchelor.
Wiley Defense, Kelsey G. Wiley, for appellant.
Patsy Austin-Gatson, District Attorney, Christopher M. DeNeve,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, for appellee.