X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

McMillian, Justice. Appellant Terry Marshall appeals his convictions for the malice murder of Marshal Tucker, the attempted murder of Latonia Patterson, and other related crimes.[1] Marshall contends that the trial court improperly sentenced him as a three-time recidivist, that the trial court plainly erred by relying on two of his out-of-state convictions in sentencing him as a recidivist, and that the trial court committed two merger errors at sentencing. Because we conclude that the trial court committed several merger errors, we vacate Marshall’s conviction for aggravated assault of one victim. Otherwise, we affirm his convictions. 1. Viewed in the light most favorable to the jury’s verdict, the evidence at trial showed that Marshall and Patterson, who were both from the small town of Valley, Alabama, dated in the early 1990s and then rekindled their relationship in March 2013. In April 2014, Patterson ended the relationship because she was tired of Marshall’s “anger” and “distrust.” Shortly before their break-up, Marshall gave Patterson $200 as a gift; after the break-up, he began threatening her and demanded that she repay the money “or else.” Marshall continued threatening Patterson over the phone and through her family, and she eventually had her cousin deliver repayment to him. In the meantime, Patterson met Tucker, and they began dating. Around 11:30 p.m. on May 19, Tucker visited Patterson at her Fairburn, Georgia apartment. Patterson heard Tucker’s “signature knock” at her door, and she opened the door to let him in. Upon opening the door, Patterson saw Marshall, who was holding a shotgun, running up the stairs behind Tucker. Patterson pulled Tucker into the apartment and bolted the door, but Marshall kicked in the door and shot Tucker in the head. After Patterson unsuccessfully tried to escape by breaking through the screen enclosure of the apartment’s balcony, Marshall dragged her back into the apartment as she attempted to fight him off. Once inside, Marshall used his hand to hold Patterson’s head against the coffee table while he reloaded the shotgun. Patterson continued fighting Marshall until she heard a loud boom and felt a pain as she was shot in the neck. Patterson noticed that Marshall had shot himself in the hand, and she played dead until he left the apartment. Several of Patterson’s neighbors observed Marshall leaving the apartment, and one noticed that Marshall was cradling his hand. Marshall left a trail of blood down the stairs outside Patterson’s apartment. When first responders arrived at the apartment, Patterson immediately identified Marshall as the assailant. Tucker was declared dead at the scene, and the medical examiner later identified his cause of death as a gunshot to the head. Fairburn Police Department officers were dispatched to Marshall’s Alabama home. Marshall’s car was in the driveway, and officers noticed blood inside the car, as well as on the steps leading up to his front door. Marshall was not at home. Sometime later, Marshall turned himself in to police. He was taken to the hospital for treatment of his wounded hand, and officers heard Marshall tell doctors that the injury was caused by a shotgun. The gun was never recovered. Blood swabs taken from Patterson’s apartment were later matched to Marshall, and cell phone records showed that Marshall was in the vicinity of Patterson’s apartment on the night of the shootings. At trial, Marshall stipulated to being a convicted felon. Although not enumerated as error by Marshall, consistent with our customary practice in murder cases, we have reviewed the record and conclude that the evidence as summarized above was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Marshall was guilty of the crimes of which he was found guilty.[2] See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). 2. We turn first to various merger errors, two of which have been enumerated as error by Marshall. After Marshall was found guilty of, among other counts, malice murder and three counts of felony murder, he was sentenced for malice murder, and the felony murder counts were vacated by operation of law. Nevertheless, the trial court purported to merge the predicate felony counts of burglary, aggravated assault, and felon-in-possession (Counts 6, 9, and 12) into the vacated felony murder counts. Although Marshall does not contest these mergers on appeal, the trial court erred in merging these counts “inasmuch as there is no felony murder count into which the underlying felony can merge, since the felony murder conviction has been statutorily vacated.” West v. State, 305 Ga. 467, 470 (1) (a) (ii) (826 SE2d 64) (2019) (citation and punctuation omitted). Instead, the felon-in-possession count (Count 12) should have merged into the possession of a firearm by a convicted felon during the commission of another felony count (Count 13), and the aggravated assault (Count 6) should have merged into the malice murder conviction, not the vacated felony murder count. See Atkinson v. State, 301 Ga. 518, 521 (2) (801 SE2d 833) (2017) (“In this regard, rather than purporting to merge the possession of a firearm by a convicted felon count into the felony murder and malice murder counts, the trial court should have instead merged the felon- in-possession count into the count relating to the use of a firearm by a convicted felon during the commission of another felony.”); Manner v. State, 302 Ga. 877, 891 (IV) (808 SE2d 681) (2017) (“The court properly merged the aggravated assault into the malice murder verdict, as those two counts of the indictment were both premised on the act of shooting [the victim].”). However, because these merger errors make no practical difference and the State has not raised these issues by cross-appeal, we decline to correct them here. See Dixon v. State, 302 Ga. 691, 698 (4) (808 SE2d 696) (2017). We note a different issue with respect to the burglary count. In Dixon, we held that “when a merger error benefits a defendant and the State fails to raise it by cross-appeal, we . . . will exercise our discretion to correct the error upon our own initiative . . . in exceptional circumstances.” Id. at 698 (4). Although the State did not raise this issue on cross-appeal, the State points out in its appellate brief that in the order denying Marshall’s motion for new trial, the trial court concluded that it had improperly merged Marshall’s conviction for burglary under Count 9 with the vacated felony murder conviction in Count 4 and set a date for resentencing. See Favors v. State, 296 Ga. 842, 848 (5) (770 SE2d 855) (2015) (“The burglary count . . . does not merge with malice murder as a matter of law, because each crime by definition requires proof of an element that the other does not.”). However, before the resentencing hearing could take place, Marshall filed a notice of appeal divesting the trial court of jurisdiction. Although we decline to exercise our discretion under these circumstances to correct the merger error, nothing in this opinion should be read to preclude the trial court from doing so upon return of the remittitur. See OCGA § 17-10-1 (f) (sentencing court has jurisdiction to modify or vacate any sentence “within 120 days after receipt by the . . . court of the remittitur upon affirmance of the judgment after direct appeal.”). Additionally, Marshall argues, and the State concedes, that the possession of a firearm during the commission of a felony count (Count 11) should have merged into the possession of a firearm by a convicted felon during the commission of another felony count (Count 13). See Atkinson, 301 Ga. at 521 (2). We agree, and we therefore vacate Marshall’s conviction and five-year sentence for possession of a firearm during the commission of a felony (Count 11). Finally, Marshall asserts that the trial court erred by merging the aggravated battery count into the attempted murder count because Zamudio v. State, 332 Ga. App. 37, 48 (7) (771 SE2d 733) (2015), requires the opposite – that the attempted murder count merge into the aggravated battery count. However, Zamudio was recently overruled by our decision in Priester v. State, ___ Ga. ___, ___ (3) (___ SE2d ___) 2020 Ga. LEXIS 465, at *8 (Case No. S20A0444, decided June 29, 2020), which held that “aggravated battery merges into the greater offense of attempted murder when the crimes are predicated upon the same conduct[,]” as they are here.[3] Accordingly, we conclude that Marshall was properly sentenced in this regard. 3. We turn next to Marshall’s claim that the trial court erred in sentencing him as a recidivist under OCGA § 17-10-7 (c). The record shows that before trial, the State filed a notice of intent to seek recidivist punishment of Marshall pursuant to OCGA §§ 17-10­7 (a) and (c) based on four prior out-of-state felony convictions. The State also filed a separate notice of intent to seek a sentence of life without the possibility of parole in the event Marshall was found guilty of malice murder or felony murder. At the presentence hearing, after the State tendered into evidence certified copies of four Alabama felony convictions, trial counsel conceded that, “in light of the fact that the State did file its recidivist notice and the verdict, we do understand that there’s not much discretion the Court has. There’s no argument for the defense to make in regards to sentencing[.]” The trial court thereafter expressly sentenced Marshall as a recidivist under OCGA §§ 17-10-7 (a) and (c).[4] On appeal, Marshall contends that the trial court erred in imposing recidivist sentencing because two of the four Alabama felony convictions proffered by the State do not constitute “crimes which if committed within this state would be felonies,” as required by OCGA § 17-10-7 (c). Marshall did not raise this claim in the trial court, either at the presentence hearing or in his motion for new trial, and his trial counsel affirmatively waived any objection to using the Alabama felony convictions by stating the defense had no argument to make against recidivist sentencing. Nevertheless, relying on von Thomas v. State, 293 Ga. 569, 573-74 (2) (748 SE2d 446) (2013), Marshall now asserts that he has not waived this claim because it “challenges ‘the effect or use of the prior convictions’” and is therefore like a challenge to the sufficiency of the evidence supporting his recidivist sentences, which he claims can be asserted for the first time on appeal.[5] In considering Marshall’s recidivist sentences, we start with the principle that as a general matter, “errors not raised in the trial court will not be heard on appeal.” Carruth v. State, 290 Ga. 342, 344-45 (2) (721 SE2d 80) (2012). Nevertheless, the sentencing court has jurisdiction to vacate a void sentence at any time, and the failure to object at trial does not waive such a claim. See von Thomas, 293 Ga. at 571 (2). But “[w]hen the sentence imposed falls within the statutory range of punishment, the sentence is not void, and is not subject to post-appeal modification beyond that provided in OCGA § 17-10-1 (f).”[6] Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). Here, Marshall’s sentences all were within the statutory range of punishment. See OCGA §§ 16-5-1 (e) (1) (“A person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life.”); 16-4-6 (a) (“A person convicted of the offense of criminal attempt to commit [murder] shall be punished by imprisonment for not less than one year nor more than 30 years.”).[7] Moreover, because Marshall does not contest that two of his four prior Alabama convictions qualified as felonies for purposes of recidivist sentencing, he cannot show that the State failed to meet the requirements for recidivist sentencing under OCGA § 17-10-7 (a). That subsection provides that where a convicted felon has at least one prior qualifying felony conviction, he “shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted[.]” Therefore, Marshall cannot contest that a sentence of life in prison for malice murder[8] and a 30-year sentence for criminal attempt to commit murder were mandated under OCGA § 17-10-7 (a). Although the trial court further sentenced Marshall to life without parole for murder, the court did not have to rely on OCGA § 17-10-7 (c) to impose that condition. Subsection (c) mandates that a defendant previously convicted of three qualifying felonies serve the maximum sentence for all subsequent felonies without parole, but OCGA § 16-5-1 (e) (1) expressly authorizes a sentence of life without parole for a malice murder conviction, regardless of the defendant’s prior criminal history. See also OCGA § 17-10-1 (b) (“The judge, in fixing the sentence as prescribed in subsection (a) of this Code section, may make a determination as to whether the person being sentenced should be considered for parole prior to the completion of any requirement otherwise imposed by law relating to the completion of service of any specified time period before parole eligibility.”). The trial court thus was authorized to impose the sentences it did even without taking into consideration the State’s request for recidivist punishment and the evidence presented in support of that request.[9] And under these circumstances where the trial court was permitted by other statutes to impose the sentences that it did, even if the trial court labored under the mistaken impression that Marshall was not eligible for parole under OCGA § 17-10-7 (c), that would amount to a mistake of law but would not result in a void sentence. See Jones, 278 Ga. at 670-71 (“Assertions 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 and therefore are not a means for post- appeal, post § 17-10-1 (f) sentence modification.”). Accordingly, because Marshall’s sentences fell within the statutory range of punishment for the crimes of which he was convicted, his sentences were not void and thus Marshall was required to raise any sentencing errors in the trial court to preserve them for review on appeal. In this instance, Marshall’s trial counsel not only failed to object, he affirmatively waived any objection to the use of the Alabama felonies, and we conclude that Marshall waived his claim that the trial court improperly used two of the Alabama felonies to support the recidivist sentences. As Marshall has offered no other basis on which this Court could conclude that his claim is not waived, nor do we discern one, we determine no basis for vacating Marshall’s recidivist sentences. 4. Marshall also argues that the trial court committed plain error by failing to inquire whether his Alabama felony convictions would be felonies if committed within this state. However, in Georgia, plain-error review is confined to the sentencing phase of a trial resulting in the death penalty, a trial judge’s expression of opinion in violation of OCGA § 17-8-57, and a jury charge affecting substantial rights of the parties as provided under OCGA § 17-8-58 (b), and, for cases tried after January 1, 2013, with regard to rulings on evidence, a court is allowed to consider plain errors affecting substantial rights although such errors were not brought to the attention of the court. OCGA § 24-1-103 (d). Keller v. State, ___ Ga. ___ (2) (a) (842 SE2d 22) (2020) (citation and punctuation omitted). See also Ross v. State, 296 Ga. 636, 639 (2) n.6 (769 SE2d 43) (2015). Absent a specific provision by the General Assembly, we decline to extend plain-error review to other categories of claimed error.[10] Id. This enumeration thus fails. Judgment affirmed in part and vacated in part. All the Justices concur.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
June 20, 2024
Atlanta, GA

The Daily Report is honoring those attorneys and judges who have made a remarkable difference in the legal profession.


Learn More
April 25, 2024
Dubai

Law firms & in-house legal departments with a presence in the middle east celebrate outstanding achievement within the profession.


Learn More
April 29, 2024 - May 01, 2024
Aurora, CO

The premier educational and networking event for employee benefits brokers and agents.


Learn More

A large and well-established Tampa company is seeking a contracts administrator to support the company's in-house attorney and manage a wide...


Apply Now ›

We are seeking an attorney to join our commercial finance practice in either our Stamford, Hartford or New Haven offices. Candidates should ...


Apply Now ›

We are seeking an attorney to join our corporate and transactional practice. Candidates should have a minimum of 8 years of general corporat...


Apply Now ›
04/15/2024
Connecticut Law Tribune

MELICK & PORTER, LLP PROMOTES CONNECTICUT PARTNERS HOLLY ROGERS, STEVEN BANKS, and ALEXANDER AHRENS


View Announcement ›
04/11/2024
New Jersey Law Journal

Professional Announcement


View Announcement ›
04/08/2024
Daily Report

Daily Report 1/2 Page Professional Announcement 60 Days


View Announcement ›