Samuel L. Brown v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ September 19, 2018

The Court of Appeals hereby passes the following order: A19A0189. SAMUEL L. BROWN v. THE STATE.

A jury found Samuel L. Brown guilty of possessing the tools for the commission of a crime and trafficking in cocaine, and he was sentenced to thirty years with ten to serve.1 Brown concedes that he is a five-time recidivist, and the trial court imposed a sentence with no parole eligibility. Years later, Brown filed a motion to vacate a void sentence, arguing that the sentencing scheme is unconstitutional.2 The trial court denied the motion, and Brown appeals. A direct appeal may lie from an order denying or dismissing a motion to vacate 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). A sentence is void only if it imposes punishment that the law does not allow. Crumbley v. State, 261 Ga. 610,

1 Brown’s convictions were affirmed on appeal. See Brown v. State, 307 Ga. App. 99 (704 SE2d 227) (2010). 2 Brown’s constitutional argument is difficult to decipher. The maximum sentence for his offense is 30 years. See OCGA § 16-13-30 (d). Under OCGA § 16- 13-31 (a) (1) (A), Brown faced a mandatory minimum of ten years. Brown argues that OCGA § 17-10-1 (a) – which requires a recidivist to be sentenced to the longest term provided – is unconstitutional when read in conjunction with OCGA § 16-13-31 (a) (1) (A) because it increases the mandatory minimum sentence in violation of due process. The Supreme Court has already upheld the constitutionality of OCGA § 17- 10-1 on similar grounds. See Ortiz v. State, 266 Ga. 752, 754 (2) (b) (470 SE2d 874) (1996).

611 (a) (409 SE2d 517) (1991). “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 SE2d 446) (2013). Here, the trial court sentenced Brown to 30 years, which is a lawful sentence for a recidivist drug offender. See OCGA § 16-13-30 (d). Accordingly, Brown has not raised a colorable void sentence claim, and his appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 09/19/2018 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.