Tony McAfee v. State

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ September 08, 2026

The Court of Appeals hereby passes the following order:

A26A1160. MCAFEE v. THE STATE.

Tony McAfee appeals from the trial court’s order granting in part and denying in part his motion to vacate a void sentence. We, however, lack jurisdiction.

In 1996, McAfee was convicted of two counts of armed robbery and two counts of aggravated assault in connection with the robbery of two people at a convenience store. McAfee was sentenced to 20 years’ imprisonment for each armed robbery conviction, to run consecutively; and 20 years’ imprisonment for each aggravated assault conviction, to run concurrently with the armed robbery sentences. We affirmed his convictions on direct appeal in an unpublished opinion. McAfee v. State, Case No. A96A2081 (Dec. 19, 1996).1 In 2024, McAfee filed a motion to vacate a void sentence, arguing that his aggravated assault convictions should have merged into his armed robbery convictions and that his armed robbery convictions should have merged together, leaving him with a single armed robbery conviction. Following a hearing, the trial court granted the motion in part and denied it in part. The court agreed that McAfee’s aggravated assault convictions should have merged into his armed robbery convictions, and it therefore vacated his aggravated assault sentences. However, the court ruled that McAfee’s armed robbery convictions did not merge because the armed robbery of

1 We also affirmed the convictions of McAfee’s co-defendant, who was tried separately. Slaton v. State, 224 Ga. App. 422 (480 SE2d 872) (1997).

each victim was a separate unit of prosecution under the facts of the case.2 McAfee challenges this portion of the trial court’s ruling.

A direct appeal is permitted from the denial of a motion to vacate a void sentence if the motion raises a colorable claim that the sentence is, in fact, void. Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010). But a motion to vacate a void sentence is not an appropriate vehicle for asserting a merger claim, which represents a challenge to a defendant’s conviction. See Jackson v. Crickmar, 311 Ga. 870, 873(2) (860 SE2d 709) (2021) (“merger claims are a species of [a] void-conviction claim”) (citation and punctuation omitted); see also Nazario v. State, 293 Ga. 480, 488(2)(d) (746 SE2d 109) (2013). Accordingly, “a merger claim must come before the court in a type of proceeding in which criminal convictions may be challenged”;3 it “cannot be considered in a free-standing motion to vacate a sentence and/or vacate a conviction as void or pleadings of a similar nature.” Nazario, 293 Ga. at 488(2)(d) (citation and punctuation omitted).

Because McAfee was not authorized to raise his merger argument in a motion to set aside a void sentence, he is not entitled to a direct appeal from the trial court’s

2 Although we do not reach the merits of McAfee’s merger argument, we note that the evidence at trial, viewed favorably to the jury verdict, showed that McAfee and an accomplice demanded money from a married couple working together at the store. McAfee, slip op. at 1. After hitting the husband with a gun, they took money from under a store counter, grabbed cash that the wife was counting, and took the wife’s purse. Id. at 1-2.

3 Such proceedings include “a motion for new trial, direct appeal from the judgment of conviction, extraordinary motion for new trial, motion in arrest of judgment, or petition for the writ of habeas corpus.” von Thomas v. State, 293 Ga. 569, 572(2) (748 SE2d 446) (2013).

order. See Williams v. State, 287 Ga. 192, 193-94 (695 SE2d 244) (2010). Accordingly, this appeal is hereby DISMISSED. See id.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 09/08/2026

I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.