Opinion
A23A1220
06-02-2023
RONNIE CURTIS, JR. v. THE STATE.
The Court of Appeals hereby passes the following order:
In 1994, Ronnie Curtis, Jr., was convicted of kidnapping, sodomy, aggravated assault, and false imprisonment (five counts). The trial court imposed a sentence which included 20 years for the sodomy conviction. We affirmed Curtis's convictions on appeal. Case No. A96A1915 (decided Dec. 17, 1996). In 2021, Curtis filed a "Motion to Set Aside Void Sentence," in which he contended that his conviction for sodomy must be overturned in light of the decision in Powell v. State, 270 Ga. 327 (510 S.E.2d 18) (1998). The trial court denied the motion, and Curtis filed this direct appeal. We lack jurisdiction.
In Powell v. State, 270 Ga. at 336 (3), the Court "conclude[d] that OCGA § 16-6-2 is unconstitutional insofar as it criminalizes the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent."
First, 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 (1), 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). Here, the trial court was permitted to sentence Curtis to 20 years for sodomy. See OCGA § 16-6-2 (b) (1993).
Second, 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). Regardless of the nomenclature, Curtis's motion sought to set aside his criminal conviction. Notably, Curtis's challenge to his conviction based on the decision in Powell v. State is unavailing, as his conviction was already final (i.e., no longer in the "pipeline"on direct appeal) when Powell was decided. See generally Shelton v. State, 307 Ga.App. 599, 604 (3) (c) (705 S.E.2d 699) (2011); Grimes v. State, 297 Ga.App. 720, 722 (678 S.E.2d 167) (2009).
Accordingly, because Curtis has not raised a colorable void sentence claim and is not authorized to attack his conviction in this manner, this appeal is hereby DISMISSED. See id.; Harper, 286 Ga. at 218 (1) and (2).