Opinion
A23A0525
11-30-2022
MENSHACK J. NYEPAH v. THE STATE.
The Court of Appeals hereby passes the following order:
Menshack Nyepah pled guilty to multiple counts of armed robbery, aggravated assault, and false imprisonment, stemming from the robbery of a credit union. Nyepah filed a motion to withdraw his plea, which the trial court denied. After the grant of Nyepah's motion for an out-of-time appeal, we affirmed the denial of his motion to withdraw his plea in an unpublished opinion. See Nyepah v. State, Case No. A17A0831 (Jan. 26, 2017). In 2022, Nyepah filed a "Motion to Correct, Vacate, or Set Aside An Illegal Sentence," which the trial court denied. Appearing pro se, Nyepah filed a notice of appeal from the trial court's order. We, however, lack jurisdiction.
A direct appeal may lie from an order denying a motion to vacate or correct a void sentence, but only if the defendant raises a colorable claim that the sentence is, in fact, void. Harper v. State, 286 Ga. 216, 217 n. 1 (686 S.E.2d 786) (2009); Burg v. State, 297 Ga.App. 118, 119 (676 S.E.2d 465) (2009). "Motions to vacate a void sentence generally are limited to claims that - even assuming the existence and validity of the conviction for which the sentence was imposed - the law does not authorize that sentence, most typically because it exceeds the most severe punishment for which the applicable penal statute provides." von Thomas v. State, 293 Ga. 569, 572 (2) (748 S.E.2d 446) (2013). Thus, when a sentence is within the statutory range of punishment, it is not void. Jones v. State, 278 Ga. 669, 670 (604 S.E.2d 483) (2004).
In his motion, Nyepah did not argue that his sentences exceeded the statutory maximums. Instead, he argues that he did not enter a guilty plea to two counts of aggravated assault and that the aggravated assault convictions should have merged with the armed robbery convictions. Essentially, Nyepah seeks to challenge his convictions. See Williams v. State, 287 Ga. 192, 194 (695 S.E.2d 244) (2010) (merger argument is a challenge to conviction). See generally Rubiani v. State, 279 Ga. 299, n.1 (612 S.E.2d 798) (2005) (the substance of a motion, rather than its nomenclature, controls). Our Supreme Court has made clear that a motion seeking to challenge an allegedly invalid or void judgment of conviction "is not one of the established procedures for challenging the validity of a judgment in a criminal case" and that an appeal from the denial of such a motion is subject to dismissal. Roberts v. State, 286 Ga. 532, 532 (690 S.E.2d 150) (2010).
Accordingly, because Nyepah has not raised a colorable void-sentence claim and is not authorized to collaterally attack his conviction in this manner, this appeal is hereby DISMISSED. See id.; Harper 286 Ga. 216, at 218 (1) and (2).