Opinion
A24A1424
05-22-2024
JERRY DWAYNE ADAMS v. THE STATE.
The Court of Appeals hereby passes the following order:
In 2003, a jury found Jerry Dwayne Adams guilty of two counts of kidnapping with bodily injury, hijacking a motor vehicle, and battery. Adams's convictions were affirmed on appeal. Adams v. State, 276 Ga.App. 319 (623 S.E.2d 525) (2005). In March 2024, Adams filed a motion to vacate an illegal sentence, arguing that his convictions for kidnapping with bodily injury and battery should have merged with his conviction for hijacking a motor vehicle. Adams also argued that the trial court should have held a pre-sentence hearing on the merger issue. The trial court subsequently denied the motion, and Adams filed this direct appeal.
Under OCGA § 17-10-1 (f), a court may modify a sentence during the year after its imposition or within 120 days after remittitur following a direct appeal, whichever is later. Frazier v. State, 302 Ga.App. 346, 348 (691 S.E.2d 247) (2010). Once, as here, this statutory period expires, a trial court may modify only a void sentence. Id. A sentence is void if the court imposes punishment that the law does not allow. Jones v. State, 278 Ga. 669, 670 (604 S.E.2d 483) (2004). When a sentence falls within the statutory range of punishment, it is not void and is not subject to modification beyond the time provided in § 17-10-1 (f). See id. Moreover, a direct appeal does not lie from the denial of a motion to modify a sentence filed outside the statutory time period unless the motion raises a colorable claim that the sentence is, in fact, void. Frazier, 302 Ga.App. at 348; Harper v. State, 286 Ga. 216, 217, n. 1 (686 S.E.2d 786) (2009).
Adams has not raised a colorable claim that his sentences are void because his arguments have no bearing on whether the sentences fall within the statutory ranges of permissible punishments for the crimes of which he was convicted. See von Thomas v. State, 293 Ga. 569, 572 (2) (748 S.E.2d 446) (2013) ("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."). Rather, Adams raises a merger argument. This merger claim, however, is a challenge to his convictions, not his sentence, and thus does not state a valid void-sentence claim. See Williams v. State, 287 Ga. 192, 193-194 (695 S.E.2d 244) (2010) (merger argument constitutes a challenge to conviction). Similarly, Adams's claim that the trial court erred in failing to hold a presentence hearing does not call into question the validity of his sentence and therefore does not state a valid void-sentence claim. Claims taking issue with the procedure employed in imposing a valid sentence or questioning the fairness of an imposed sentence do not allege a sentence is void. Mosley v. State, 301 Ga.App. 47, 49 (686 S.E.2d 833) (2009).
Accordingly, because Adams has not raised a colorable void-sentence claim, this appeal is hereby DISMISSED.