317 Ga. 424 FINAL COPY
S23A0589. SOSEBEE v. THE STATE.
ELLINGTON, Justice.
A Hall County jury found Christopher Sosebee guilty of felony
murder in the death of Brian Hayes resulting from a car wreck.1
Sosebee contends that Count 1, felony murder, and Count 4,
1 The wreck occurred on July 22, 2020. On May 5, 2021, a Hall County
grand jury returned an indictment charging Sosebee with felony murder predicated on fleeing and attempting to elude a police officer (Count 1), homicide by vehicle in the first degree, predicated on driving under the influence (Count 2), homicide by vehicle in the first degree, predicated on reckless driving (Count 3), homicide by vehicle in the first degree, predicated on fleeing and attempting to elude a police officer (Count 4), serious injury by vehicle (Count 5), felony fleeing and attempting to elude a police officer (Count 6), driving under the influence of drugs (less safe) (Count 7), reckless driving (Count 8), misdemeanor obstruction of an officer (Count 9), speeding (Count 10), failure to maintain lane (Count 11), driving with expired license (Count 12), affixing plate to conceal or misrepresent identity (Count 13), and improper tires (Count 14). Following a February 2022 trial, a jury found Sosebee guilty on Counts 1, 2, 3, 4, and 6, as well as several of the other offenses not at issue in this appeal. On February 11, 2022, the trial court sentenced Sosebee as a recidivist to serve life in prison without parole on Count 1. The trial court determined that Count 6 merged with Count 1 for purposes of sentencing. The trial court also declared that Counts 2, 3, and 4 were vacated as a matter of law. Sosebee filed a timely motion for a new trial, which he amended on September 15, 2022. The trial court denied Sosebee’s motion for a new trial on September 23, 2022. Sosebee filed a timely notice of appeal, and the case was docketed in this Court to the April 2023 term and submitted for a decision on the briefs. homicide by vehicle in the first degree, which were both predicated
on Count 6, fleeing or attempting to elude, defined exactly the same
criminal conduct. Sosebee argues that the rule of lenity therefore
requires that he be sentenced within the range for homicide by
vehicle in the first degree, rather than for felony murder. He also
contends that his sentence of life without parole violates the
prohibition of cruel and unusual punishment in the Eighth
Amendment to the United States Constitution because neither
felony murder nor homicide by vehicle in the first degree, when
predicated on fleeing and attempting to elude as in this case,
requires malice or specific intent to harm, and because the prior
felonies that triggered his sentencing as a recidivist were non-
violent. For the reasons explained below, we affirm.
The facts relevant to Sosebee’s claims of error are not disputed.
The record shows the following. On July 22, 2020, a Hall County
sheriff’s deputy was looking for a black car that had been spray-
painted and was missing its front grill, in order to serve arrest
warrants on a person who, the day before, had reportedly been
2 driving a vehicle matching that description. The deputy saw an SUV
matching that description, called it in, and followed the vehicle while
requesting additional officers to assist with a traffic stop. After a few
minutes of following the SUV at 45 to 50 mph in a 45-mph zone, the
deputy activated his blue lights and siren. The SUV accelerated and
pulled away from the patrol car. At a curve, the SUV’s right rear tire
left the road, then the SUV veered sharply to the left, crossed the
oncoming lane, traveled up an embankment, hit some boulders,
flipped, landed on top of an approaching truck, and then rolled off.
The driver of the truck showed no signs of life when the deputy
reached him, and Sosebee’s girlfriend, Tiffany Franklin, who had
been a passenger in the SUV during the incident, was very badly
injured.
Franklin testified about the day of the wreck as follows. She
and Sosebee were visiting a friend that day when they saw a police
car parked near their friend’s house. They left their friend’s house
with Sosebee driving Franklin’s Chevrolet Equinox. When Franklin
saw the patrol car’s blue lights, she screamed at Sosebee to stop.
3 Sosebee did not stop; he accelerated. Sosebee said, “[B]aby, I am
sorry. I love you.” Franklin felt the SUV go off the road, and then it
flipped and hit another vehicle. Franklin testified that Sosebee
believed he had an outstanding warrant and that, on some date prior
to the incident, he told her “that they would have to kill him before
he went back to prison.” A test of Sosebee’s blood after the wreck
revealed methamphetamine, at an impairment level, as well as
marijuana.
An expert in collision reconstruction with the Georgia State
Patrol testified that the SUV was traveling approximately 80 mph
in the seconds before the wreck. The speed limit in force at that
location was 45 mph.
Count 1 of the indictment charged that Sosebee,
while in the commission of a felony, to wit: Fleeing and Attempting to Elude a Police Officer as alleged in [C]ount 6 of this Indictment, cause[d] the death of Brian Hayes, a human being, by striking said person’s vehicle, in violation of [OCGA §] 16-5-1 (c)[.]
Count 4 of the indictment charged that Sosebee,
without malice aforethought, cause[d] the death of Brian Hayes, a human being, through a violation of [OCGA 4 §] 40-6-395, Fleeing and Attempting to Elude, as alleged in [C]ount 6 of this Indictment, in violation of [OCGA §] 40-6-393 (a)[.]
Count 6 of the indictment charged that Sosebee
did willfully fail to bring his vehicle to a stop after having been given an audible and a visual signal, to wit: lights and sirens, to bring his vehicle to a stop by Deputy Shaw, said officer at the time giving such signal, being in uniform prominently displaying his badge of office, and his vehicle being appropriately marked showing it to be an official police vehicle, and did operate his vehicle in excess of 20 miles per hour above the posted speed limit and strike or collide with another vehicle and flee in traffic conditions which placed the general public at risk of receiving serious injuries, in violation of [former] [OCGA §] 40-6-395 (b) (5) (A)[.]
1. Sosebee contends that “as indicted” the statute defining
felony murder and the statute defining homicide by vehicle in the
first degree impose “different punishments for identical criminal
conduct.” Sosebee argues that an ambiguity therefore exists
between the two statutes and that the trial court erred when it failed
to apply the rule of lenity and sentence him to the lesser of the two
penalties.
The rule of lenity applies when a statute establishes, or
multiple statutes establish, different punishments for the same 5 offense and, consequently, “uncertainty develops as to which penal
clause is applicable[.]” Brown v. State, 276 Ga. 606, 608 (2) (581
SE2d 35) (2003) (citation and punctuation omitted). See also Peacock
v. State, 314 Ga. 709, 723 (5) (878 SE2d 247) (2022). The rule of
lenity provides that any ambiguity or uncertainty as to the
punishment to be imposed in such a case “is resolved in favor of the
defendant, who will then receive the lesser punishment.” Peacock,
314 Ga. at 723 (5) (citation and punctuation omitted). See also Dixon
v. State, 278 Ga. 4, 7 (1) (d) (596 SE2d 147) (2004) (According to the
rule of lenity, when “any uncertainty develops as to which penal
clause is applicable, the accused is entitled to have the lesser of [the]
two penalties administered.” (citation and punctuation omitted)).
Importantly, “[t]he rule of lenity is a rule of construction that is
applied only when an ambiguity still exists after having applied the
traditional canons of statutory construction.” State v. Hanna, 305
Ga. 100, 102 (2) (823 SE2d 785) (2019) (citation and punctuation
6 omitted).2 Therefore, “the rule does not apply when the statutory
provisions are unambiguous.” Banta v. State, 281 Ga. 615, 617 (2)
(642 SE2d 51) (2007).
The statutes at issue here are not ambiguous and do not
require different punishments for the same conduct. The offense of
felony murder under OCGA § 16-5-1 (c) criminalizes causing the
death of a human being “in the commission of a felony,”3 but the
offense of homicide by vehicle in the first degree under OCGA § 40-
6-393 (a) does not. The latter Code section criminalizes causing the
death of another person through the violation of OCGA §§ 40-6-163
(a), 40-6-390 through 40-6-391, or 40-6-395 (a).4 Pertinent to this
2 See Green v. State, 311 Ga. 238, 242 (1) (857 SE2d 199) (2021) (“When
presented with a question of statutory interpretation, we begin by examining the statute’s plain language, reading the text in its most natural and reasonable way, as an ordinary speaker of the English language would. Thus, when considering the meaning of a statute, we must afford the statutory text its plain and ordinary meaning, viewed in the context in which it appears. If the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.” (citations and punctuation omitted)). 3 OCGA § 16-5-1 (c) provides: “A person commits the offense of murder
when, in the commission of a felony, he or she causes the death of another human being irrespective of malice.” 4 The 2008 version of OCGA § 40-6-393, applicable at the time of
Sosebee’s offenses, provides in subsection (a): “Any person who, without malice
7 case, violation of OCGA § 40-6-395 (a) is a misdemeanor.5 Felony-
aforethought, causes the death of another person through the violation of subsection (a) of Code Section 40-6-163, Code Sections 40-6-390 through 40-6- 391, or subsection (a) of Code Section 40-6-395 commits the offense of homicide by vehicle in the first degree[.]” OCGA § 40-6-393 was amended effective May 3, 2021, after the date of Sosebee’s offenses. See Ga. L. 2021, p. 228 (Act No. 152), § 7. One aspect of the amendment was to include a new offense, reckless stunt driving, among the predicate acts for homicide by vehicle in the first degree set out in OCGA § 40-6-393 (a). See id.; Ga. L. 2021, p. 228, § 6 (adding a new Code section, OCGA § 40-6-390.1). 5 The 2012 version of OCGA § 40-6-395 (b) (1), applicable at the time of
Sosebee’s offenses, provides: Any person violating the provisions of subsection (a) of this Code section shall be guilty of a high and aggravated misdemeanor and: (A) Upon conviction shall be fined not less than $500.00 nor more than $5,000.00, and the fine shall not be subject to suspension, stay, or probation, and imprisoned for not less than ten days nor more than 12 months. Any period of such imprisonment in excess of ten days may, in the sole discretion of the judge, be suspended, stayed, or probated; (B) Upon the second conviction within a ten-year period of time, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, shall be fined not less than $1,000.00 nor more than $5,000.00, and the fine shall not be subject to suspension, stay, or probation, and imprisoned for not less than 30 days nor more than 12 months. Any period of such imprisonment in excess of 30 days may, in the sole discretion of the judge, be suspended, stayed, or probated; and for purposes of this paragraph, previous pleas of nolo contendere accepted within such ten- year period shall constitute convictions; and (C) Upon the third or subsequent conviction within a ten-year period of time, as measured from the dates of previous arrests for which convictions were obtained to the date of the current arrest for which a conviction is obtained, shall be fined not less than $2,500.00 nor more than
8 level fleeing under former OCGA § 40-6-395 (b) (5) (A), which was
charged in Count 6, has elements in addition to those required to
prove a violation of misdemeanor fleeing under OCGA § 40-6-395
(a).6 As a greater offense, felony fleeing is a distinct offense from a
$5,000.00, and the fine shall not be subject to suspension, stay, or probation, and imprisoned for not less than 90 days nor more than 12 months. Any period of such imprisonment in excess of 90 days may, in the sole discretion of the judge, be suspended, stayed, or probated; and for purposes of this paragraph, previous pleas of nolo contendere accepted within such ten-year period shall constitute convictions. We note without comment that, effective July 1, 2022, a fourth or subsequent conviction of fleeing under OCGA § 40-6-395 (a) is a felony. See Ga. L. 2022, p. 100 (Act No. 646), § 1; OCGA § 40-6-395 (b) (1) (D). Similarly, reckless stunt driving is a felony for a fourth or subsequent conviction in a ten- year period of time. See Ga. L. 2021, p. 228, § 6; OCGA § 40-6-390.1 (a) (4). In addition, a fourth or subsequent conviction, within a ten-year period of time, of driving under the impairing influence of alcohol or drugs under OCGA § 40- 6-391 is a felony. See OCGA § 40-6-391 (c) (4). 6 The 2012 version of OCGA § 40-6-395 (b) (5) (A), applicable at the time
of Sosebee’s offenses, provides: Any person violating the provisions of subsection (a) of this Code section who, while fleeing or attempting to elude a pursuing police vehicle or police officer: (i) Operates his or her vehicle in excess of 20 miles an hour above the posted speed limit; (ii) Strikes or collides with another vehicle or a pedestrian; (iii) Flees in traffic conditions which place the general public at risk of receiving serious injuries; (iv) Commits a violation of paragraph (5) of subsection (a) of Code Section 40-6-391; or (v) Leaves the state shall be guilty of a felony punishable by a fine of $5,000.00 or
9 violation of OCGA § 40-6-395 (a) that is specified as one of the
predicate offenses of homicide by vehicle in the first degree. But, as
in this case, the same set of facts that gives rise to a greater offense
also gives rise to an included offense. See Soto v. State, 303 Ga. 517,
521 (2) (b) (813 SE2d 343) (2018); OCGA § 16-1-6 (1).
As explained above, the rule of lenity applies only when there
are different potential punishments for the same conduct, that is,
where differently punished offenses have the same statutory
elements. See Sillah v. State, 315 Ga. 741, 755 (5) (b) (883 SE2d 756)
(2023); Brown, 276 Ga. at 608-609 (2). In regard to felony murder
and fleeing in particular, this Court concluded in State v. Tiraboschi,
269 Ga. 812 (504 SE2d 689) (1998), that “when the General
Assembly created the felony level crime of fleeing or attempting to
elude, it knew that a violation of [former] OCGA § 40-6-395 (b) (5)
(A) would expose an accused to a charge of felony murder when
imprisonment for not less than one year nor more than five years or both. Effective July 1, 2022, this subparagraph was redesignated as subsection (c), and additional aggravating factors were included. See Ga. L. 2022, p. 100, § 1. 10 death resulted.” Id. at 814. In Tiraboschi, we rejected the argument
that an indictment charging a defendant with homicide by vehicle
in the first degree and felony fleeing and attempting to elude a police
officer could not also charge the defendant with felony murder
predicated on felony fleeing. Id. See also Chester v. State, 262 Ga.
85, 87-88 (2) (b) (414 SE2d 477) (1992) (rejecting argument that the
vehicular homicide statute precludes a murder charge in vehicular
deaths; holding that malice murder and vehicular homicide are
offenses of the same nature that differ only in degree, in that malice
murder requires proof of malice, and vehicular homicide does not;
and affirming denial of special demurrer to a count of malice
murder).
In this case, even though misdemeanor fleeing and attempting
to elude is a sufficient predicate for vehicular homicide in the first
degree, the way that the State drew up the indictment charging
Sosebee with vehicular homicide in the first degree in Count 4
required the State to prove the statutory elements of felony fleeing
to prove that count. That does not change the fact that, as a matter
11 of statutory interpretation, felony murder predicated on felony
fleeing and attempting to elude is a different offense than homicide
by vehicle in the first degree and, therefore, there is no ambiguity
between the statutory definitions of felony murder and homicide by
vehicle in the first degree predicated on a violation of OCGA § 40-6-
395 (a). As we have explained, “that a single act may, as a factual
matter, violate more than one penal statute does not implicate the
rule of lenity.” Smallwood v. State, 310 Ga. 445, 452 (3) (851 SE2d
595) (2020) (citation and punctuation omitted). In the absence of a
textual ambiguity between the statutes at issue, our review of
Sosebee’s rule-of-lenity argument must end, despite the way the
offenses were indicted in his case. The rule of lenity simply has no
application in this case, and this claim of error fails. See Peacock,
314 Ga. at 723 (5); Banta, 281 Ga. at 618 (2); cf. Dixon, 278 Ga. at 7
(1) (d) (holding that rule of lenity required that the defendant be
sentenced for misdemeanor statutory rape under former OCGA § 16-
6-3 (b), rather than felony aggravated child molestation under
OCGA § 16-6-4 (a), because both statutes criminalized an act of
12 sexual intercourse between a 14- or 15-year-old victim and a
defendant who was no more than three years older than the victim
and the Code sections prescribed different punishments for the same
conduct).
2. Sosebee contends that the trial court imposed a sentence in
violation of the prohibition of cruel and unusual punishment in the
Eighth Amendment to the United States Constitution. Specifically,
he argues that life without parole on a conviction for offenses that
do not require proof of malice or specific mens rea as to harm is
unconstitutionally excessive. Similarly, he argues that life without
parole under a recidivist sentencing statute is unconstitutionally
excessive where all of the prior felonies that trigger the enhanced
punishment were non-violent.7
As an initial matter, Sosebee’s sentence is within the statutory
7 The trial court sentenced Sosebee to recidivist punishment pursuant to
OCGA § 17-10-7 (a) and (c) based on the following prior convictions: (1) 2017 convictions for possession of methamphetamine and forgery in the second degree; (2) a 2014 conviction for theft by taking; (3) a 2010 conviction for possession of alprazolam; (4) another 2010 conviction for possession of alprazolam; (5) a 2013 conviction for entering an automobile or other motor vehicle; and (6) a 2016 conviction for entering an automobile or other motor vehicle. 13 range for felony murder when the defendant is sentenced as a
recidivist under OCGA § 17-10-7 (a) and (c).8 “The legislature’s
choice of sentence is insulated from judicial review unless it is
wholly irrational or so grossly disproportionate to the severity of the
crime that it constitutes cruel and unusual punishment” which is
prohibited by the Eighth Amendment of the United States
Constitution. Pierce v. State, 302 Ga. 389, 401 (3) (c) (807 SE2d 425)
(2017) (citation and punctuation omitted). “[C]ourts must defer to
the legislature in determinations of sentencing parameters unless a
8 OCGA § 16-5-1 (e) (1) 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 § 17-10-7 provides, in pertinent part: (a) . . . [A]ny person who, after having been convicted of a felony offense in this state . . . commits a felony punishable by confinement in a penal institution shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense. ... (c) . . . [A]ny person who, after having been convicted under the laws of this state for three felonies . . . commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served. 14 sentence is so overly severe or excessive in proportion to the offense
as to shock the conscience.” Winslow v. State, 315 Ga. 133, 143 (3)
(880 SE2d 530) (2022) (citation and punctuation omitted). See
Pierce, 302 Ga. at 401-403 (3) (c) (rejecting both facial and as-applied
Eighth Amendment challenges to a sentencing scheme).
A court determines whether a sentence is grossly
disproportionate to the crime committed first by comparing the
severity of the sentence and the gravity of the offense, including the
statutory elements of the offense and “the particular circumstances
of the crime committed as shown by the record.” Sillah, 315 Ga. at
755 (5) (b). See also Conley v. Pate, 305 Ga. 333, 337 (3) (825 SE2d
135) (2019) (“[W]e look to the underlying facts of the offense to
determine whether a given sentence is grossly disproportionate” to
the crime.).
In the rare case that this threshold comparison leads to an inference of gross disproportionality, a court next compares the defendant’s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions.
Sillah, 315 Ga. at 755 (5) (b) (citation and punctuation omitted). 15 With regard to recidivist sentencing in particular, the Supreme
Court of the United States explained that “the point at which a
recidivist will be deemed to have demonstrated the necessary
propensities and the amount of time that the recidivist will be
isolated from society are matters largely within the discretion of the
punishing jurisdiction.” Rummel v. Estelle, 445 U. S. 263, 285 (III)
(100 SCt 1133, 63 LE2d 382) (1980). In Rummel, a case where the
defendant’s three prior felony convictions were non-violent thefts in
small amounts,9 the Supreme Court held that a recidivist statute
providing a life sentence for a third felony conviction did not violate
the Eighth Amendment proscription against cruel and unusual
punishment. Id. See also Ortiz v. State, 266 Ga. 752, 753-754 (2) (a)
(470 SE2d 874) (1996) (holding that a sentence of life imprisonment
without possibility of parole under OCGA § 17-10-7 (b) does not
constitute cruel and unusual punishment under the Eighth
9 The defendant had pleaded guilty to fraudulent use of a credit card to
obtain $80 worth of goods or services, passing a forged check in the amount of $28.36, and felony theft by obtaining $120.75 by false pretenses. Rummel, 445 U. S. at 266-267 (I). 16 Amendment).
In this case, the evidence showed that Sosebee willfully put his
girlfriend, the motoring public, and other innocent bystanders at
risk of grave injury or death simply to avoid a traffic stop. Under the
circumstances, we cannot say that Sosebee’s sentence is so overly
severe or excessive in proportion to his offenses as to shock the
conscience. Sosebee’s claim of error under the Eighth Amendment
therefore fails at the threshold comparison of the severity of the
sentence and the gravity of the offense. See Winslow, 315 Ga. at 143
(3) (concluding that punishing the possession of child pornography
under OCGA § 16-12-100 (f) (1) the same as offenses involving the
sale, distribution, or manufacturing of child pornography did not
arise to a violation of the prohibition against cruel and unusual
punishment in the Eighth Amendment to the United States
Constitution); Pate, 305 Ga. at 336-338 (3) (concluding that, despite
the youth of the defendant at the time of the offense, the sentence of
20 years’ imprisonment for statutory rape “[did] not meet even the
threshold inference of gross disproportionality” so as to constitute
17 cruel and unusual punishment under the Eighth Amendment to the
United States Constitution, where the 13-year-old victim repeatedly
refused the 15-year-old defendant’s demands for sex and submitted
only after the defendant brandished a knife and threatened to kill
the victim’s father, who was asleep in an adjoining bedroom).10
10 Cf. Bradshaw v. State, 284 Ga. 675, 679 (2) (b), 683 (4) (671 SE2d 485)
(2008) (holding that a mandatory sentence of life imprisonment imposed under OCGA § 42-1-12 (n) for the defendant’s second failure to register as a convicted sex offender constituted cruel and unusual punishment, considering that the failure to update information on the sexual offender registry involves “neither violence nor threat of violence to any person” and, as such, “is a passive felony that neither caused nor threatened to cause harm to society”; that violent crimes including voluntary manslaughter, aggravated assault with intent to murder, rape, or rob, or aggravated battery may result in a sentence of as little as one year under Georgia law, a far lesser punishment than life imprisonment; and that Georgia’s mandatory punishment of life imprisonment is the clear outlier when compared to other states’ sentencing parameters for the same offense) (citation and punctuation omitted); Humphrey v. Wilson, 282 Ga. 520, 526-532 (3) (c)-(g) (652 SE2d 501) (2007) (holding that a sentence of ten years in prison without the possibility of parole followed by one year of probation for aggravated child molestation under former OCGA § 16-6-4 constituted cruel and unusual punishment, where the defendant was 17 years old at the time of the crime, the victim was 15 years old, and the sexual act involved the victim willingly performing oral sex on the defendant, considering that the conduct was reduced to a misdemeanor under a subsequent amendment to the Code section, based on the General Assembly’s changed view of the appropriate punishment for consensual teenage oral sex; that violent crimes including voluntary manslaughter, involuntary manslaughter, aggravated assault with intent to kill, or aggravated battery may result in a sentence of as little as one year under Georgia law; that molestation of a young child may result in a sentence of as little as five years, and even forcible rape may result in a sentence of as little as ten years; and that most other states either would not punish oral sex between willing teenagers at all or would
18 Judgment affirmed. All the Justices concur.
Decided October 11, 2023.
Murder. Hall Superior Court. Before Judge Deal.
Jake A. Shapiro, Christopher van Rossem, for appellant.
Lee Darragh, District Attorney, Kelley M. Robertson, Anna V.
Fowler, Assistant District Attorneys; Christopher M. Carr, Attorney
General, Beth A. Burton, Deputy Attorney General, Paula K. Smith,
Senior Assistant Attorney General, Matthew B. Crowder, Assistant
Attorney General, for appellee.
V. Natasha Perdew Silas; J. Ryan Brown Law, Hunter J.
Rodgers; Amagi Law, Matthew P. Cavedon; The Bullard Firm,
Brandon A. Bullard, amici curiae.
punish it as a misdemeanor, as under Georgia’s amended law, and those states that retain a felony designation for such conduct do not impose a minimum punishment nearly as severe as ten years in prison with no possibility of probation or parole). 19