Mark Stephan Newsome, Jr. v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ November 13, 2020

The Court of Appeals hereby passes the following order: A21A0473. MARK STEPHAN NEWSOME, JR. v. THE STATE.

In 2008, Mark Stephan Newsome, Jr. was convicted of two counts of aggravated assault (OCGA § 16-5-21), one count of armed robbery (OCGA § 16-8- 41), two counts of false imprisonment (OCGA § 16-5-41), one count of burglary (OCGA § 16- 7-1), one count of theft by taking (OCGA § 16-8-2), and one count of possession of a firearm during a felony (OCGA § 16-11-106). We affirmed his convictions on appeal but remanded for resentencing on Count 2 (aggravated assault) and Count 3 (armed robbery). See Newsome v. State, 324 Ga. App. 665 (751 SE2d 474) (2013). In 2016, Newsome, appearing pro se, filed a motion to vacate a void sentence. The trial court denied his motion, and Newsome appeals from that order. We, however, lack jurisdiction. 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, 348 (691 SE2d 247) (2010). Once, as here, this statutory period has expired, a trial court may modify only a void sentence. Id. A sentence is void if the court imposes punishment that the law does not allow. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). “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). When a sentence is within the statutory range of punishment, it is not void. Jones, 278 Ga. at 670. Moreover, a direct appeal does not

lie from the denial of a motion to modify a sentence filed outside the statutory time period unless the motion raises a colorable claim that the sentence is, in fact, void. Frazier, 302 Ga. App. at 348. In his motion, Newsome argued that his sentence is void due to the failure to merge Count 1 (aggravated assault) with Count 3 (armed robbery). Such a merger argument is a challenge to a conviction rather than a sentence, and thus does not constitute a valid void sentence claim. See Williams v. State, 287 Ga. 192, 193-194 (695 SE2d 244) (2010). Newsome also argued that the evidence in support of his burglary conviction is insufficient, which is also a challenge to his conviction rather than his sentence. The Supreme Court has made clear that a motion seeking to challenge an allegedly invalid or void judgment of conviction “is not one of the established procedures for challenging the validity of a judgment in a criminal case” and that an appeal from the denial of such a motion is subject to dismissal. Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010). Newsome’s remaining claims – that his sentence was unduly harsh and that the trial court should have imposed concurrent sentences – are also not valid void sentence arguments. Arguments pertaining to the severity of sentences do not constitute valid void sentence claims absent a colorable claim that a sentence lies outside the statutory range of punishment. See Frazier, supra. Additionally, a trial court has discretion to impose consecutive or concurrent sentences for separate offenses, as long as the sentence for each offense is within the statutory limits. See Rooney v. State, 287 Ga. 1, 3-6 (3) (690 SE2d 804) (2010); see also OCGA § 17-10- 10 (a); Dowling v. State, 278 Ga. App. 903, 904 (630 SE2d 143) (2006). Here, each sentence Newsome received is within the statutory limits: 20 years for aggravated assault, 15 years for armed robbery, 5 years for false imprisonment, 15 years for burglary, 10 years for theft by taking, and 5 years for possession of a firearm during the commission of a felony. See OCGA §§ 16-5-21 (b); 16-8-41 (b); 16-5-41 (b); 16-

7-1 (b); 16-8-12 (a) (1); 16-11-106 (b). Accordingly, Newsome’s appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 11/13/2020 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.