An Approach to Georgia Recidivist Sentencing - Drugs and Burglaries - by S. Phillips and J. Stern

Posted almost 3 years ago. Applies to Georgia, 2 helpful votes

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An Approach to Drug Sentencing

1. What schedule drug is it?

There are over 150 schedule I /II drugs. They are all listed in OCGA § 16-13-25 and 26.

*Marijuana is not listed as a schedule drug. It is defined in 16-13-21 (16). Sentencing is addressed in 16-13-30(j)(1) and (2).

2. Does the D have priors? If yes, answer the questions below. If no, skip this section.

a. Does the D have a prior felony conviction?

17-10-7(a) applies if the D has been sentenced to confinement for a felony committed in Ga. or for a crime that would have been a felony if committed in Ga. Note that when a sentence is probated, the defendant is still sentenced to confinement in a penal institution.E.g.,Webb v. State, 251 Ga. App. 414 (any prior Georgia felony conviction, even if probated, satisfies 17-10-7(a)).

b. Is this the defendant’s fourth (or greater) felony conviction?

If so, §17-10-7(c) applies and the defendant is not eligible for parole for the “to serve" portion of his sentence. However,State v. Jones, 265 Ga. App. 493 (2004) applies and requires that the court impose a mandatory minimum sentence of 10 years to serve. For ideas on attacking the reasoning ofJones, see p.4 “The Flaw in Jones."

SPECIFIC EXAMPLES:

1. 2nd Poss w Intent or Sale of Schedule I or II drug, fourth felony conviction

CURRENT CHARGE PRIORS STATUTES SENT RANGE PAROLE

Poss. Cocaine 3 Felony, incl 16-13-30 (b) 10-40 yrs or life

w/Intent to Distribute 1 PWID Cocaine 16-13-30 (d)

17-10-7 (c) No

42-8-35.2

**Jonesissue: Minimum sentence ifJonesfollowed is 16 to serve 10, balance probated

IfJonesnot followed, minimum sentence is 10 susp or 10 p.

** 17-10-7(a) does not apply per 16-13-30(d).

Scott v. State, 248 Ga. App. 542 (2001).

2. 1st Poss w/ Intent or Sale of Schedule I or II drug, fourth felony convicition

CURRENT CHARGE PRIORS STATUTES SENT RANGE PAROLE

Poss. Cocaine 3 Felony, incl 16-13-30 (d) 30susp- 30sv No

w/ Intent to Distribute 1 PWID Marij. 17-10-7 (a)

(and a prior sent. 17-10-7 (c)

of imprisonment) 42-8-35.2

3. 2nd Poss w/ Intent or Sale of Marijuana, fourth felony conviction

CURRENT CHARGE PRIORS STATUTES SENT RANGE PAROLE

Poss Marij. w/ intent 3 felony, incl 16-13-30 (j)(2) 10susp-10sv No

to distribute 1 PWID Marij. 17-10-7(a)

(and prior sent 17-10-7 (c)

Of imprisonment)

West v. State, 255 Ga. App. 414 (2002).

4. 2nd Poss w/ Intent or Sale of Schedule I or II drug

CURRENT CHARGE PRIORS STATUTES SENT RANGE PAROLE

PWID Cocaine one, PWID cocaine 16-13-30(b) 10-40 or life Yes

16-13-30(d)

42-8-35.2

17-10-7(a) does not apply per 16-13-30(d) andMann,supra.

5. 2nd Poss w/ Intent or Sale of Marijuana

CURRENT CHARGE PRIORS STATUTES SENT RANGE PAROLE

PWID Marij. PWID Marij. 16-13-30 (j)(2) 10susp-10serve Yes

(sent of impris.) 17-10-7(a)

6. Poss w/ Intent or Sale of Schedule I or II drug and prior PWID or Sale of Marijuana

CURRENT CHARGE PRIORS STATUTES SENT RANGE PAROLE

PWID Cocaine PWID Marij 16-13-30(d) 30 susp – 30 sv Yes

(sent of impris.) 17-10-7(a)

42-8-35.2

* any sentence of imprisonment must be followed by a 3 year special term of probation per 42-8-35.2

7. Poss of Cocaine and a prior Poss Cocaine w/ Intent

CURRENT CHARGE PRIORS STATUTES SENT RANGE PAROLE

Poss. Cocaine Poss. Coc. WID 16-13-30(a) 30susp- 30 sv Yes

17-10-7(a)

Smiley v. State, 241 Ga. App. 712 (2000)(prior conviction for pwid is a prior conviction for simple poss. triggering second offense provision of 16-13-30(c)).

THE FLAW IN JONES:

The Problem:

When your client has three prior felony convictions and commits a violation of 16-13-30(b),State v. Jones, 265 Ga. App. 493 (2004) applies and requires that the court impose a mandatory minimum sentence of 10 years to serve. InJones, the defendant was convicted of possession of cocaine with intent to distribute (his second conviction for this offense) and possession of marijuana. The state filed a notice of its intent to seek recidivist punishment pursuant to OCGA §§ 16-13-30, 17-10-2, and 17-10-7. Jones was sentenced to 12 years to serve 7, balance probated. The State appealed the sentence and the Court held:

It is well settled that OCGA § 16-13-30(d) gives the sentencing judge discretion to impose either a sentence between ten and forty years or life imprisonment for a second or subsequent conviction of possession of cocaine with intent to distribute. Therefore, the trial judge's sentence of 12 years in this case falls within the sentencing guideline. However, the decision to probate a portion of the sentence, requiring Jones to serve only seven years, is in direct contravention to the statute, which states specifically that a second time offender “shall be imprisoned for not less than ten years...." By the plain reading of this statute, a defendant must serve at least ten years in prison. OCGA § 17-10-7(c), which applies to a second offense under OCGA § 16-13-30(b), requires that the time be served without parole.

These materials present an argument attacking the reasoning inJonessuggesting that it is inconsistent with precedent from the Georgia Supreme Court. To fully understand this argument I think that you need to read all the cases below. I have included excerpts from those cases as well as some of my own thoughts for your convenience.

ARGUMENT:

Does 17-10-1 apply to a sentence under 16-13-30(d)?

17-10-7(a) is expressly removed from 16-13-30(d).Mann, 277 Ga. 366 (2001). 17-10-7(c) is a statute that restricts parole for recidivists and has nothing to do with the trial court’s authority to impose probation.

Similarly, 17-10-1 is not a recidivist statute. Rather 17-10-1 deals with the trial court’s authority to impose probation. “The wording of this statute is plain: a judge can probate a sentence in Any case involving a felony except where the punishment is life imprisonment or death. Unless for some reason this statute is inapplicable to the case at bar, it shall control." Knight.

Although 17-10-1(a) limits its application to cases “in which life imprisonment … may be imposed" and 16-13-30 (d) authorizes a life sentence for a second conviction, the appellate courts have consistently interpreted the limitation within 17-10-1(a) to restrict the application of 17-10-1(a) to cases where a sentence of life is actually imposed, and not where it is only a possibility.

Further, where the legislature intends to restrict the courts ability to probate or suspend under 17-10-1, the legislature employs specific language precluding the court’s discretion:

“Some criminal statutes are, by their express terms, removed from the application of s 27-2502. Code Ann. s 26-1601(b) dealing with a second or third conviction of burglary states: “Adjudication of guilt or imposition of sentence shall not be suspended, probated, deferred or withheld for any offense punishable under this subsection." Code Ann. s 26-1902 dealing with armed robbery states in subsection (b): “Adjudication of guilt or imposition of sentence shall not be suspended, probated, deferred or withheld for any offense punishable under *774 subsection (a) of this section." Code Ann. s 68B-308(c) dealing with habitual violators caught driving without a driver's license provides that “no portion of the sentence may be suspended, rebated or probated."

It is only logical that if the legislature had intended that a conviction of a second offense under s 27-2511 should result in a sentence that could not be suspended or probated, it would have said so just as it did in the statutes cited."Knight.

No such language precluding the application of 17-10-1 is found within 16-13-30(d).

General Questions re: Poss. WID Recidivist Sentencing

  1. If D completed 1st offender sentence, can that be used as previous conviction for recidivist purposes? No. Witcher v. Pender, 260 Ga. 248 (1990);Jones v. State, 212 Ga. App. 682

If under 1st offender sentence currently, it can be used? If under sentence can’t be used until revoked. Davis v. State, 273 Ga. 14

  1. Does the schedule of the drug make a difference? Yes. For example, 16-13-30(b) and (d) concerns schedule I or II drugs only. You need to identify what schedule drug you are dealing with and then find the relevant sentencing statue.

  2. If this would be D’s 3rd or 4th conviction for Poss WID, rather than 2nd, does the mandatory 10 yr to serve situation apply? .

  3. Sale and WID are equivalent for recidivist sentencing considerations, right? Yes.

  4. What are the ways around this recidivist sentencing?

  • drug court track 1 (no plea required)

  • mental health court referral

  • negotiate with DA to withdraw recidivist notice

  • try to illustrate facts as more indicative of simple felony possession rather that WID (? was high at the time, had a smoking device, there was no scale, no denominations of money, and/or packaging indicative of use).

  • Collateral attack on prior convictions

  • Deficient recidivist notice (only with trial- seeMartin v. State, 207 Ga. App. 861)

BURGLARY RECIDIVIST SCENARIOS

Application ofGoldberg v. State, 282 Ga. 542 (2007):

  1. D currently charged with Burglary, has at least 2 prior burglary convictions, NO other felony convictions:

16-7-1(b) applies, and the applicable sentencing range is between 5 and 20

  1. D currently charged with Burglary, has at least 2 prior burglary convictions plus other felony convictions besides burglary:

17-10-7(a) applies, and the first number in the sentence range must be 20.

Additional Resources

1. Knight v. State(holding that 17-10-1(a) allows a judge to probate a sentence in any case involving a felony except where the punishment is life imprisonment or death) 2. Stone v. State, 218 Ga. App. 250 (In Baldwin, as in this case, the imposition of a life sentence was mandatory pursuant to OCGA § 17-10-7(a), and the court held that OCGA § 17-10-1(a), which expressly abrogates the trial court's discretionary power to grant probation in cases in which life imprisonment or capital punishment is imposed, applied.) 3. State v. Baldwin: 167 Ga. App. 737 (OCGA § 17-10-1 (Code Ann. § 27-2502) "expressly abrogates the trial court's discretionary power to grant probation 'in cases in which life imprisonment or capital punishment is imposed.' Quoting Miller v. State, 162 Ga.App. 730, 735, 292 S.E.2d 102 (1982)). 4. Mosley v. State: 203 Ga. App. 275: OCGA § 17-10-1, which generally allows trial judges to suspend or probate sentences. That statute does not apply to sentences for conviction of certain crimes in which the legislature has dictated that life imprisonment must be imposed

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