Steve Usher v. State

Court of Appeals of the State of Georgia

ATLANTA,_________________ June 06, 2012

The Court of Appeals hereby passes the following order: A12A1868. STEVE USHER v. THE STATE.

In 1997, Steve Usher was convicted of trafficking and selling cocaine and sentenced to life imprisonment. We affirmed his convictions on appeal. Usher v. State, 236 Ga. App. 663 (512 SE2d 380) (1999). He later filed motions for out-of- time appeal and to vacate a void judgment and conviction. The trial court denied both motions, and Usher appeals. “An out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal. It is the means by which a criminal defendant who lost his right to direct appeal of his criminal conviction due to counsel’s negligence, ignorance, or misinterpretation of the law may gain that appellate review.” Richards v. State, 275 Ga. 190, 191 (563 SE2d 856) (2002). Because Usher has already had a direct appeal from his conviction and sentence, he was not entitled to an out-of-time appeal. The trial court’s denial of his motion for such unauthorized relief presents nothing for this Court to review. With regard to Usher’s motion to vacate a void judgment and conviction, the Supreme Court has held that a post-conviction motion to vacate an allegedly void criminal conviction is not one of the established procedures for challenging the validity of a judgment in a criminal case, and an appeal from the trial court’s ruling on such a petition should be dismissed. See Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010). A direct appeal may lie from an order denying or dismissing a motion to correct a void sentence if the defendant raises a colorable claim that the sentence is, in fact, void or illegal. See Harper v. State, 286 Ga. 216 n.1 (686 SE2d 786) (2009); Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). A sentence is

void only when the trial court imposes punishment that the law does not allow. See Jordan v. State, 253 Ga. App. 510, 511 (1) (559 SE2d 528) (2002). Usher argues that his sentence is void because the state failed to notify him that it intended to seek a life sentence. However, “[a]ssertions 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 . . .” Coleman v. State, 305 Ga. App. 680 (700 SE2d 668) (2010). Usher also contends that his sentence is void because the trial court mistakenly believed that imposition of a life sentence was mandatory, but a review of the sentencing transcript shows that the trial court understood it had the discretion to impose life or a lesser sentence. Thus, Usher has not raised a colorable void-sentence claim. For these reasons, this appeal is DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia 06/06/2012 Clerk’s Office, Atlanta,_________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.