Tharpe v. Head

533 S.E.2d 368, 272 Ga. 596, 2000 Fulton County D. Rep. 2586, 2000 Ga. LEXIS 541

• Court: Supreme Court of Georgia
• Decided: July 10, 2000
• Docket: S00A0061
• Status: Published

Opinions

Fletcher, Presiding Justice.

The issue in this case is whether Tharpe’s habeas corpus petition challenging his habitual violator conviction alleged adverse collateral consequences to sustain his claim. We hold that Tharpe suffers adverse collateral consequences as a result of his habitual violator conviction because the State introduced that conviction as non-statutory evidence in his death penalty trial. Therefore, the habeas court erred in dismissing his petition as moot and we reverse and remand for a decision on the merits.

Keith Leroy Tharpe pled guilty in 1988 to being a habitual traffic violator and he was sentenced to 4.5 years of probation.¹ In 1991, a jury convicted him of malice murder and two counts of kidnapping with bodily injury. In the penalty phase of his murder trial, the State introduced a certified copy of his habitual violator conviction as non-statutory aggravating evidence.² The jury returned a death sentence and this Court affirmed the convictions and sentence.³ Tharpe subsequently filed a petition for writ of habeas corpus challenging his murder and kidnapping convictions and the resulting death sentence. In 1998, Tharpe also filed a habeas corpus petition, the subject of this appeal, challenging his conviction as a habitual violator, although his sentence had expired years earlier. He contends that his rights were substantially denied during the plea colloquy that led to his conviction for that offense. In 1999, the habeas court dismissed as moot the petition challenging the habitual violator conviction because Tharpe “has failed to demonstrate that he is suffering adverse collateral consequences or significant restraints on his liberty beyond that flowing from other sentences as a result of the [habitual violator] conviction.” Tharpe claims that he is suffering adverse collateral consequences from his habitual violator conviction because it was used to support the jury’s decision to impose the death sentence for his later crimes.

We granted Tharpe’s certificate of probable cause to appeal and posed the following question:

Whether the habeas court erred by dismissing the petitioner’s application for writ of habeas corpus as moot on the ground that the petitioner had failed to prove that he was suffering any adverse collateral consequences from his 1988 habitual violator conviction.

“Any person restrained of his liberty as a result of a sentence imposed by any state court of record may seek a writ of habeas corpus to inquire into the legality of the restraint.”⁴ Present confinement is not required to show a restraint of liberty; it is sufficient restraint that the petitioner is suffering adverse collateral consequences flowing from his conviction.⁵ Adverse collateral con sequences can be found through recidivist statutes, parole consequences, and even “the stigma and burden of an invalid sentence.”⁶ The adverse collateral consequences may continue past the completion of any sentence resulting from the allegedly invalid conviction if the petitioner has “a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him.”⁷ “The mere fact that the state sentence has been completely served should no longer be a bar to attacking it through habeas corpus even though the petition is not initially filed until after the sentence is completed.”⁸

In Zant v. Cook,⁹ Cook filed a habeas corpus petition challenging a 1950 murder conviction that was used to prove a statutory aggravating circumstance in his 1985 death penalty trial for another murder.¹⁰ Cook’s sentence for the 1950 murder conviction had long since expired: he had been released from prison in 1957 and his civil rights had been restored in 1965.¹¹ At his 1985 murder trial, the jury found two statutory aggravating circumstances beyond a reasonable doubt in support of his death sentence, only one of which was based on the 1950 murder conviction. Although a jury needs to find only one statutory aggravating circumstance in the penalty phase before it may impose the death penalty,¹² this Court nonetheless affirmed the habeas court’s finding that Cook was suffering adverse collateral consequences stemming from his 1950 murder conviction.¹³

The warden argues that Tharpe had failed to allege adverse collateral consequences to sustain the petition because the habitual violator conviction was only used as non-statutory aggravating evidence in his death penalty trial. We reject the warden’s contention that a conviction introduced as non-statutory aggravating evidence differs from a conviction introduced to form the basis of a statutory aggravating circumstance because a statutory aggravating circumstance must be found before the jury can impose a death sentence.¹⁴ We decline to make such a distinction because, even if the State proves one or more statutory aggravating circumstances, the jury is always free to exercise its discretion to impose a life sentence.¹⁵ Evidence introduced by the State in the penalty phase, whether it is offered to prove a statutory aggravating circumstance or whether it is non-statutory aggravating evidence such as a defendant’s character or criminal history, is intended to influence the trier of fact to impose a death sentence. At Tharpe’s death penalty trial, the State obviously believed that the habitual violator conviction would help convince the jury to recommend a death sentence, or it would not have introduced it.¹⁶ Therefore, since the 1988 habitual violator conviction was used to sway the jury to impose the death sentence he is under, Tharpe is currently suffering adverse collateral consequences from the habitual violator conviction and his petition is not moot.¹⁷

Judgment reversed and case remanded.

Benham, C. J., Fletcher, P. J, Sears, Hunstein and Hines, JJ, and Judge Cynthia D. Wright concur. Carley, J., dissents. Thompson, J., disqualified.

1 See OCGA § 40-5-58.

2 See Wilson v. State, 271 Ga. 811 (20) (525 SE2d 339) (1999) (a defendant’s previous criminal activity is generally admissible in the penalty phase as non-statutory aggravating evidence).

3 Tharpe v. State, 262 Ga. 110 (416 SE2d 78) (1992).

4 OCGA § 9-14-1 (c).

5 See Atkins v. Hopper, 234 Ga. 330 (2) (216 SE2d 89) (1975).

6 Atkins, 234 Ga. at 333; Hardison v. Martin, 254 Ga. 719 (1) (334 SE2d 161) (1985).

7 Carafas v. LaVallee, 391 U. S. 234, 237 (88 SC 1556, 20 LE2d 554) (1968); Hardison, 254 Ga. at 721.

8 Parris v. State, 232 Ga. 687, 690 (208 SE2d 493) (1974); Hardison, 254 Ga. at 721.

9 259 Ga. 299 (379 SE2d 780) (1989).

10 See OCGA § 17-10-30 (b) (1).

11 Cook, 259 Ga. at 299.

12 See OCGA § 17-10-30 (c); Zant v. Stephens, 250 Ga. 97 (2) (297 SE2d 1) (1982).

13 See Cook, 259 Ga. at 300.

14 OCGA § 17-10-30 (c).

15 Zant v. Stephens, 250 Ga. at 100.

16 See Cook, 259 Ga. at 300 (“[T]he state’s argument that the 1950 conviction is too old to be attacked, but not too old to be used to enhance Cook’s sentence for his 1985 conviction of murder is without merit.”).

¹⁷