Court of Appeals
of the State of Georgia

                                          ATLANTA,____________________
                                                   June 23, 2020

The Court of Appeals hereby passes the following order:

A20A1973. SHERRON BURRELL v. THE STATE.

       Based on an incident that occurred when he was 15 years old, Sherron Burrell
was tried as an adult and convicted of kidnapping with bodily injury, aggravated
assault, terroristic threats, and battery. He was sentenced to life in prison, with the
possibility of parole, on the kidnapping conviction, as required by OCGA § 16-5-40
(d) (4). See Horne v State, 298 Ga. App. 601, 606 (3) (680 SE2d 616) (2009)
(kidnapping statute “mandates a life sentence if the victim suffers any bodily injury”).
In an amended motion for new trial, Burrell argued for the first time that “[i]t is
unconstitutional to require a mandatory life sentence for juveniles, making the
kidnapping with bodily injury sentencing scheme unconstitutional in Georgia.” The
trial court denied Burrell’s motion, rejecting his constitutional challenge on the
ground that while “[t]he Courts have held that a mandatory life sentence without the
possibility of parole is unconstitutional as to juveniles, . . . there is no authority cited
that a mandatory life sentence with the possibility of parole is unconstitutional.”
Burrell filed a notice of appeal to this Court, but he now moves to transfer the case
to the Supreme Court based on that Court’s jurisdiction over constitutional questions.
The State opposes the motion.
       The Supreme Court “has exclusive jurisdiction over all cases involving
construction of the Constitution of the State of Georgia and of the United States and
all cases in which the constitutionality of a law, ordinance, or constitutional provision
has been called into question.” Atlanta Independent School System v. Lane, 266 Ga.
657, 657 (1) (469 SE2d 22) (1996) (citing Ga. Const. of 1983, Art. VI, Sec. VI, Par.
II (1)). This exclusive jurisdiction extends “only to constitutional issues that were
distinctly ruled on by the trial court and that do not involve the application of
unquestioned and unambiguous constitutional provisions or challenges to laws
previously held to be constitutional against the same attack.” State v. Davis, 303 Ga.
684, 687 (1) (814 SE2d 701) (2018) (punctuation omitted). Here, the trial court
expressly rejected Burrell’s challenge to the constitutionality of OCGA § 16-5-40 (d)
(4), as applied to juveniles, and that challenge appears to present an issue of first
impression. The State argues, however, that the Supreme Court’s jurisdiction is not
invoked because Burrell waived his constitutional challenge by failing to raise it at
the earliest opportunity.
      In general, “constitutional challenges to sentencing statutes, including those
challenges based on the Eighth Amendment, are untimely if they are presented for the
first time in a motion for new trial.” Jones v. State, 290 Ga. 670, 674 (3) (725 SE2d
236) (2012). And a constitutional challenge that has been waived does not invoke the
Supreme Court’s exclusive jurisdiction. See Perez-Castillo v. State, 275 Ga. 124, 124
(562 SE2d 184) (2002). The State relies primarily on Brinkley v. State, 291 Ga. 195
(728 SE2d 598) (2012), in which the Supreme Court held that it lacked jurisdiction
to consider the identical challenge presented here – that a mandatory life sentence for
kidnapping with bodily injury is unconstitutional as applied to juveniles – because the
defendant raised it for the first time in an amended motion for new trial. Id. at 198-
200 (2).
      In its more recent decision in Veal v. State, 298 Ga. 691 (784 SE2d 403)
(2016), however, the Supreme Court addressed the merits of the defendant’s belated
argument that his sentence to life without parole for malice murder, which he
committed as a juvenile, violated the Eighth Amendment. Id. at 700-703 (5) (d) The
Supreme Court ruled that the defendant’s challenge was “a substantive claim that, if
meritorious, would render his sentence void.” Id. at 701 (5) (d). As such, the
challenge had not been waived, but instead could be properly raised in an amended
motion for new trial and on direct appeal. Id. Further, the Court disapproved of
Brinkley to the extent it held otherwise. Id.
      As in Veal, Burrell’s constitutional argument appears to be a substantive claim
that, if meritorious, would render his sentence void. Accordingly, it appears that
Burrell may not have waived his constitutional challenge and that jurisdiction may
lie in the Supreme Court. As the Supreme Court has the ultimate responsibility for
determining appellate jurisdiction, see Saxton v. Coastal Dialysis & Med. Clinic, 267
Ga. 177, 178 (476 SE2d 587) (1996), Burrell’s motion to transfer is hereby
GRANTED, and this appeal is TRANSFERRED to the Supreme Court for
disposition.

                                       Court of Appeals of the State of Georgia
                                              Clerk’s Office, Atlanta,____________________
                                                                        06/23/2020
                                              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.
