Reuben Walls v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ September 22, 2015

The Court of Appeals hereby passes the following order: A16A0045. REUBEN WALLS v. THE STATE.

A jury convicted Reuben Walls of aggravated assault and aggravated battery in 2002. We affirmed his judgment of conviction on direct appeal. Walls v. State, 283 Ga. App. 560 (642 SE2d 195) (2007). Walls later filed several motions to set aside a void sentence, as well as an extraordinary motion for a new trial, all of which the trial court denied in August 2011. In December 2011, Walls moved for leave to file an out-of-time appeal to challenge the denial of his motions to set aside a void sentence and extraordinary motion for a new trial. The trial court denied Walls’s December 2011 motion, which it construed as a motion to reconsider the denial of his motions to set aside a void sentence. This direct appeal followed. We lack jurisdiction. An out-of-time appeal is appropriate only when a defendant has a right to a direct appeal. Grantham v. State, 267 Ga. 635, 635 (481 SE2D 219) (1997). 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. See Harper v. State, 286 Ga. 216, 217 n.1 (686 SE2d 786) (2009); Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). When a sentence is within the statutory range of punishment, it is not void. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). In his motions to set aside a void sentence, Walls argued that his convictions for aggravated assault and aggravated battery should have merged and that his trial counsel rendered ineffective assistance. Walls’s merger claim is a challenge to his convictions, and not his sentences, and thus does not state a valid void-sentence

claim. See Williams v. State, 287 Ga. 192, 193-194 (695 SE2d 244) (2010). Walls’s ineffective-assistance claim did not implicate the statutory range of punishments in his case, and thus also did not raise a valid void-sentence claim. See Jones, supra at 670. To the extent that Walls sought to challenge his convictions in either of these claims, “a petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case.” (Punctuation omitted.) Williams, supra at 192. Consequently, Walls was not entitled to a direct appeal from the denial of his motions to set aside a void sentence. See Harper, supra at 217 n.1; Burg, 297 supra at 119. Walls also was not entitled to a direct appeal from the denial of his extraordinary motion for a new trial, which must be appealed by application for discretionary review. See OCGA § 5-6-35 (a) (7); Balkcom v. State, 227 Ga. App. 327, 329 (489 SE2d 129) (1997). Moreover, as discussed above, Walls already has obtained a review of his judgment of conviction by way of a direct appeal. See Milliken v. State, 259 Ga. App. 144, 145 (575 SE2d 910) (2003) (an out-of-time appeal “is not a remedy available to a criminal defendant whose conviction has been reviewed by an appellate court on direct appeal since that defendant is not entitled to a second direct appeal from his judgment of conviction” (punctuation omitted)); see also Lewis v. State, 300 Ga. App. 586, 587 (685 SE2d 485) (2009). Consequently, regardless of whether the trial court erred when it construed Walls’s motion for an out-of-time appeal as a motion for reconsideration, Walls was not entitled to a direct appeal in this case. As a result, he also was not entitled to an out-of-time appeal. See Grantham, supra at 635. For these reasons, this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia 09/22/2015 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.