Vincent Hogan v. State

• Court: Court of Appeals of Georgia
• Decided: July 10, 2012
• Docket: A12A0048
• Status: Published

Opinion

WHOLE COURT

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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

July 10, 2012

In the Court of Appeals of Georgia A12A0048. HOGAN v. THE STATE.

MCFADDEN, Judge.

Vincent Hogan appeals from his conviction for false swearing, arguing that

under the rule of lenity, he should have received a misdemeanor, rather than a felony,

sentence. However, because there is no uncertainty as to the punishment that applies

to the offense of false swearing, the rule of lenity does not apply and the trial court

correctly sentenced Hogan for a felony.

The record shows that in December 2010, Hogan was indicted for one count

of false swearing. In June 2011, he entered a non-negotiated guilty plea to the charge.

At the plea hearing, the state set forth, as the factual basis for the plea, that in

September 2009, Hogan executed an affidavit of candidacy stating that he was not a

convicted felon, or, if he was convicted felon, that his sentence had expired at least ten years earlier and all his rights had been restored; that such statement was false

because Hogan had been convicted of prior felonies, including a federal felony for

which the sentence had expired in 2004, only five years before he executed the

affidavit; and that his rights had not been restored. Hogan stipulated that there was

a factual basis for the plea. The trial court accepted the plea and imposed a five-year

sentence, ordering Hogan to serve 18 days in confinement and the rest of the sentence

on probation.

Hogan claims that the trial court erred in holding that the rule of lenity does not

apply to his sentence for false swearing in violation of OCGA §§ 21-2-565 and 16-

10-71. Under the rule of lenity,

where any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of two penalties administered. The rule derives from the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should. . . .The rule of lenity is particularly applicable where the two crimes at issue involve different grades of punishment, i.e., a misdemeanor and a felony.

(Citations and punctuation omitted.) Dixon v. State, 278 Ga. 4, 7 (1) (d) (596 SE2d

147) (2004). In the instant case, there is no uncertainty as to the penal clause that is

applicable to the crime to which Hogan pled guilty.

2 OCGA § 21-2-560, which addresses the making of false statements generally,

provides: “Except as otherwise provided in Code Section 21-2-265, any person who

shall make a false statement under oath or affirmation regarding any material matter

or thing relating to any subject being investigated, heard, determined, or acted upon

by any public official, in accordance with this chapter, shall be guilty of a

misdemeanor.” (Emphasis supplied.) Thus, it is clear from the plain language of this

statute that OCGA § 21-2-265 provides an exception to the general provision that

making a false statement under oath is a misdemeanor.

Consistent with that exception, OCGA § 21-2-265 (a) provides: “Any person

knowingly making any false statement in connection with filing a notice of candidacy

under Code Section 21-2-132 or in connection with qualifying as a candidate for

party nomination under Code Section 21-2-153 commits the offense of false

swearing.” (Emphasis supplied.) The offense of false swearing is a felony that is

codified at OCGA § 16-10-71, and the annotations section of OCGA § 21-2-265

specifically cross-references OCGA § 16-10-71. Indeed, in establishing that making

false statements in connection with a notice of candidacy constitutes the offense of

false swearing, the General Assembly expressly indicated that a person convicted of

such offense “shall be punished as provided by [OCGA § 16-10-71].” 1976 Ga. Laws,

3 p. 206, § 2. In that regard, OCGA § 16-10-71 (b) provides that “[a] person convicted

of the offense of false swearing shall be punished by a fine of not more than

$1,000.00 or by imprisonment for not less than one nor more than five years, or

both.”

“In Georgia, a felony . . . is defined as any crime punishable by death, by

imprisonment for life, or by imprisonment for more than 12 months, while a

misdemeanor . . . is defined as any crime other than a felony, i.e., punishable in a

manner less than a felony . . . (12 months or less).” (Citation, punctuation and

emphasis omitted.) Calbreath v. State, 235 Ga. App. 638, 639 (1) (510 SE2d 145)

(1998). See also OCGA §§ 16-1-3 (5), (9). Thus, Hogan’s false swearing offense,

punishable by imprisonment for more than 12 months, constitutes a felony. Because

there is no uncertainty as to the applicable sentence for that crime, the rule of lenity

does not apply, and the trial court’s imposition of a five-year sentence was

appropriate and within the sentencing range for that offense. Accordingly, we find no

error.

We note that Hogan has cited dicta in a footnote from the case of Jolley v.

Grantham, 206 Ga. App. 100, n. 2 (424 SE2d 362) (1992), which indicates that false

swearing on a notice of candidacy under OCGA § 21-2-565 is a misdemeanor. Not

4 only is the language in that footnote non-binding dicta, but as explained above, it is

incorrect to the extent it indicates that the offense of false swearing as proscribed by

OCGA § 21-2-565 is punishable as a misdemeanor, rather than as a felony. Moreover,

the Georgia Supreme Court recently criticized Jolley as having incorrectly addressed

an issue outside of this court’s jurisdiction, noting that “the Court of Appeals

improperly decided, albeit without mention of jurisdiction, an appeal of a challenge

to a candidate’s qualifications to run for county sheriff brought under [OCGA] § 21-

2-6. [Cit.]” Cook v. Bd. of Registrars of Randolph County, ___ Ga. App. ___ (2) (a),

fn. 2 (Case No. S12A0140, decided May 7, 2012). Consequently, to the extent Jolley

states that offense of false swearing under OCGA § 21-2-565 is punishable as a

misdemeanor, rather than as a felony, it is hereby disapproved.

Judgment affirmed. Ellington, C. J., Barnes, P. J., Phipps, P. J., Doyle, P. J.,

Andrews, Miller, Mikell, Adams, Blackwell, Dillard, and Boggs, JJ., concur.