FIFTH DIVISION MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.
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. http://www.gaappeals.us/rules
May 23, 2019
In the Court of Appeals of Georgia A19A0342. BRYSON v. THE STATE.
MCMILLIAN, Judge.
Richard S. Bryson was convicted by a jury of two counts of aggravated child
molestation, child molestation, incest, statutory rape, 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unpublished opinion on April 23, 2015.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23, 2015) (unpublished).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
1 Bryson was sentenced as follows: Count 1 – Aggravated Child Molestation – 30 years, with 20 to serve and the remainder on probation; Count 2 – Aggravated Child Molestation – 30 years in confinement, consecutive to that portion of the sentence in Count 1 to be served in confinement; Count 3 – Child Molestation – 20 years in confinement, concurrent with Count 1; Count 4 – Incest – 20 years in confinement, concurrent with Count 1; Count 5 – Statutory Rape – 20 years in confinement, concurrent with Count 1; Count 6 – Cruelty to Children in the First Degree – 10 years in confinement, concurrent with Count 1. 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 SE2d 10)
(2017); Jackson v. State, 338 Ga. App. 509, 510 (790 SE2d 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 SE2d 247) (2010)
2 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 SE2d 315) (1999). As to each of the offenses
here, the indictment, which was read to the jury at trial, charged that the acts of
aggravated 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.) Bowman v. State, 184 Ga. App. 197, 197 (2) 9361 SE2d 58)
(1987). See also State v. Layman, 279 Ga. 340, 341 (613 SE2d 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
3 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 SE2d 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 SE2d 147) (2004). According to the rule, “[w]here any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of the two penalties administered. . . . Brown v. State, 276 Ga. 606, 608-609 (2) (581 SE2d 35) (2003).
4 White v. State, 319 Ga. App. 530, 531 (2) (737 SE2d 324) (2013). Under the rule of
lenity, then, we must compare the pre and post-2006 versions of the applicable
statutes to determine which prescribes the lesser penalty. First, as to the offense of
child molestation, among other changes, the post 2006 amendment eliminated the
possibility that a person convicted of child molestation for the first time could receive
a probated sentence, thus requiring anyone convicted of that crime to serve a
mandatory minimum prison sentence of five years. Compare OCGA § 16-6-4 (b)
(2005) with OCGA § 16-6-4 (b) (1) and OCGA § 17-10-6.2 (b) (providing that no
portion of the mandatory minimum sentence for child molestation “shall be
suspended, stayed, probated, deferred or withheld”). See also Ga. L. 2006, p. 379, §
11. Accordingly, Bryson was properly sentenced under the pre-2006 amendment
version of the statute for child molestation.
As to the offense of aggravated child molestation, the legislature increased the
possible sentence range from a minimum of ten/maximum of thirty years to
“imprisonment for life or by a split sentence that is a term of imprisonment for not
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FIFTH DIVISION MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.
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. http://www.gaappeals.us/rules
May 23, 2019
In the Court of Appeals of Georgia A19A0342. BRYSON v. THE STATE.
MCMILLIAN, Judge.
Richard S. Bryson was convicted by a jury of two counts of aggravated child
molestation, child molestation, incest, statutory rape, 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
1 Bryson was sentenced as follows: Count 1 – Aggravated Child Molestation – 30 years, with 20 to serve and the remainder on probation; Count 2 – Aggravated Child Molestation – 30 years in confinement, consecutive to that portion of the sentence in Count 1 to be served in confinement; Count 3 – Child Molestation – 20 years in confinement, concurrent with Count 1; Count 4 – Incest – 20 years in confinement, concurrent with Count 1; Count 5 – Statutory Rape – 20 years in confinement, concurrent with Count 1; Count 6 – Cruelty to Children in the First Degree – 10 years in confinement, concurrent with Count 1. 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 SE2d 10)
(2017); Jackson v. State, 338 Ga. App. 509, 510 (790 SE2d 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 SE2d 247) (2010)
2 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 SE2d 315) (1999). As to each of the offenses
here, the indictment, which was read to the jury at trial, charged that the acts of
aggravated 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.) Bowman v. State, 184 Ga. App. 197, 197 (2) 9361 SE2d 58)
(1987). See also State v. Layman, 279 Ga. 340, 341 (613 SE2d 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
3 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 SE2d 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 SE2d 147) (2004). According to the rule, “[w]here any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of the two penalties administered. . . . Brown v. State, 276 Ga. 606, 608-609 (2) (581 SE2d 35) (2003).
4 White v. State, 319 Ga. App. 530, 531 (2) (737 SE2d 324) (2013). Under the rule of
lenity, then, we must compare the pre and post-2006 versions of the applicable
statutes to determine which prescribes the lesser penalty. First, as to the offense of
child molestation, among other changes, the post 2006 amendment eliminated the
possibility that a person convicted of child molestation for the first time could receive
a probated sentence, thus requiring anyone convicted of that crime to serve a
mandatory minimum prison sentence of five years. Compare OCGA § 16-6-4 (b)
(2005) with OCGA § 16-6-4 (b) (1) and OCGA § 17-10-6.2 (b) (providing that no
portion of the mandatory minimum sentence for child molestation “shall be
suspended, stayed, probated, deferred or withheld”). See also Ga. L. 2006, p. 379, §
11. Accordingly, Bryson was properly sentenced under the pre-2006 amendment
version of the statute for child molestation.
As to the offense of aggravated child molestation, the legislature increased the
possible sentence range from a minimum of ten/maximum of thirty years to
“imprisonment for life or by a split sentence that is a term of imprisonment for not
less that 25 years and not exceeding life imprisonment, followed by probation for
life[.]” Compare OCGA § 16-6-4 (d) (1) (2005) with OCGA § 16-6-4 (d) (1) (2006).
See also Ga. L. 2006, p. 379, § 11. Thus, Bryson is incorrect that the post-2006 law
5 “mandated” that he be sentenced to 25 years to serve and life on probation instead of
the 30 years, 20 to serve sentence he received, since the post-2006 amendments
would have authorized a harsher sentence of life in prison for that offense.
Accordingly, Bryson was also properly sentenced under the pre-2006 amended
version of OCGA § 16-6-4 (d) (1) for aggravated child molestation.
For the crime of incest, the legislature also increased the possible sentence
range of incest from a minimum of one/maximum of twenty to a minimum of
ten/maximum of thirty and “imprisonment for not less than 25 years nor more than
50 years” if the victim is less than 14 years of age. Compare OCGA § 16-6-22 (b)
(2005) with OCGA § 16-6-22 (b) (2006). See also Ga. L. 2006, p. 379, § 14. Thus,
the rule of lenity would require that Bryson be sentenced under the pre-amendment
version of the statute since this was a crime that was clearly committed both before
and after the amendment took effect.
In sum, pursuant to our established precedent, because Bryson could have been
subject to harsher penalties under the post-2006 versions of the applicable sentencing
statutes, he was appropriately sentenced under the prior law on his convictions for
child molestation, aggravated child molestation, and incest. Daniels, 320 Ga. App.
at 344 (3); see also Davis v. State, 323 Ga. App. 266, 275-76 (8) (746 SE2d 890)
6 (2013) (“under the rule of lenity, [defendant] cannot be given the higher sentence
imposed for the offense of aggravated sexual battery by the version of OCGA § 16-6-
22.2 (c) applicable after July 1, 2006[]” when it could not be determined if defendant
was convicted for an act which was committed before of after the change in the law)
(punctuation omitted); accord Cody v. State, 324 Ga. App. 815, 825 (3) (752 SE2d
36) (2013) (defendant properly sentenced to life imprisonment under version of
OCGA § 16-6-4 effective July 1, 2006, since the indictment alleged the acts of
aggravated child molestation were committed after July 1, 2006); Ewell v. State, 318
Ga. App. 812, 817 (3) (b) (734 SE2d 792) (2012) (“given . . . the possibility that the
offense occurred prior to the 2006 amendment, the life sentence for [aggravated child
molestation] was in error.”) .
Nor can we simply apply the post-2006 split sentencing provisions in OCGA
§ 17-10-6.2 to the pre-2006 sentencing statutes. OCGA § 17-10-6.2 was enacted as
a new provision in Georgia law and was specifically referenced in each of the revised
versions of the sexual offense statutes to which it was made applicable. See Ga. L.
2006, p. 379, § 21 (“Said title is amended by adding a new Code section to follow
OCGA § 17-10-6.1”); Ga. L. 2006, p. 379, § 11 (“[a] person convicted of a first
offense of child molestation . . . shall be subject to the sentencing and punishment
7 provisions of Code Section 17-10-6.2 and 17-10-7.”);” Ga. L. 2006, p. 379, § 14
(“Any person convicted under this code section of the offense of incest shall, in
addition, be subject to the sentencing and punishment provisions of Code Section 17-
10-6.2.”). Thus, to apply the split-sentencing provisions to the pre-2006 law would
require us to re-write the applicable statutes to make them subject to a statutory
provision that did not even exist at the time the statutes were enacted. This we cannot
do without contravening the plain meaning of the statutory text. We, thus, affirm the
trial court’s denial of Bryson’s motion to vacate his sentences as to his convictions
for child molestation, aggravated child molestation, and incest.
However, we reach a different result on Bryson’s sentence for statutory rape.
As to that crime, the minimum and maximum sentence range remained unchanged by
the 2006 amendments, except the post-July 1, 2006 law required that the sentence
include at least one year of probation as provided in OCGA § 17-10-6.2. Ga. L. 2006,
p. 379, §§ 10, 21. Because Bryson was sentenced to the maximum of twenty years,
his jail time would actually decrease under the post-2006 amendment since the
maximum jail sentence the trial court could impose was 19 years to serve, followed
by one year of probation, for a total of twenty years. Hughes v. State, 341 Ga. App.
594 (802 SE2d 30) (2017) (sentence void when 20-year prison sentence for statutory
8 rape did not include mandatory year of probation); New v. State, 327 Ga. App. 87,
108 (4) (755 SE2d 568) (2013) (defendant must be sentenced to a split sentence for
each offense to which the split-sentencing statute applies). Thus, even though his total
sentence would remain the same, the quality or degree of his punishment would be
lessened under the post-2006 version. See Watkins v. State, 336 Ga. App. 145, 152
(5) (784 SE2d 11) (2016) (under 2006 version of OCGA § 17-10-6.2, trial court was
required to impose a split sentence that includes at least the minimum term of
imprisonment and at least one year of probation, for a total of no more than the
maximum prescribed sentence); Spargo v. State, 332 Ga. App. 410, 411-12 (773
SE2d 35) (2015) (same). Because Bryson could have been convicted of statutory rape
based on acts that were committed both before or after the change in the law,2
Bryson’s sentence for statutory rape must be vacated and the case remanded for
resentencing pursuant to OCGA § 17-10-6.2 and in accordance with this opinion.
Judgment of conviction affirmed, sentence affirmed in part, vacated in part,
and case remanded for resentencing. McFadden, P. J., and Goss, J., concur.
2 The victim turned 16 on March 20, 2007, and the indictment alleged the crime of statutory rape occurred between January 1, 2005 and March 19, 2007.