Quentin Lister v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 13, 2016

The Court of Appeals hereby passes the following order: A16A0136. QUENTIN LISTER v. THE STATE.

Quentin Lister was indicted on four counts of armed robbery, one count of aggravated assault, and three counts of possession of a firearm during the commission of a felony. On June 14, 2010, Lister pled guilty to one count of armed robbery, aggravated assault, and two of the firearms charges. He also entered an Alford plea to one count of armed robbery and the remaining firearms charge. On June 21, 2010, the trial court entered judgment of conviction and sentenced Lister to a total of 25 years with 13 to serve. We affirmed Lister’s conviction in an unpublished opinion. See Lister v. State, Case No. A12A0072, decided April 11, 2012. On July 20, 2015, Lester filed a “Motion for Resentencing Under Substantive Change In Law.” The trial court denied the motion, and Lester now appeals, arguing that he should be re- sentenced in light of a change in the relevant mandatory minimum sentencing provision. In construing Lister’s motion, we look to the substance of the motion rather than its nomenclature. See Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 590 (690 SE2d 397) (2010) (in pleadings, substance controls over nomenclature). In essence, Lister seeks to have his sentence modified. 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, 347- 348 (691 SE2d 247) (2010); Burg v. State, 297 Ga. App. 118 (676 SE2d 465) (2009). Once this statutory period expires, as it had when Lister filed his motion, a trial court may modify a sentence only if it is void. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). A sentence is void only if it imposes punishment that the law does not

allow. Von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013). Lister argued in his motion that at the time he was sentenced, the trial court was compelled to impose a mandatory minimum sentence of ten years, but OCGA § 17- 10-6.1 (e) affords the trial court discretion to impose a sentence below the mandatory minimum when the prosecuting attorney and defendant agree to a lesser sentence. OCGA § 17-10-6.1 (e) applies to offenses which occur on or after its effective date of July 1, 2013; it is not retroactive. See Ga. L. 2013, p. 222, § 21; Maddox v. State, 227 Ga. App. 602, 605 (5) (490 SE2d 174) (1997). Because the sentence imposed was allowed under the law at the time of sentencing, it is not void. See Daniels v. State, 244 Ga. App. 522, 523 (536 SE2d 206) (2000). Accordingly, Lister has not raised a colorable claim, and his appeal is DISMISSED.

Court of Appeals of the State of Georgia 01/13/2016 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.