                            FOURTH DIVISION
                              DILLARD, C. J.,
                        DOYLE, P. J., and MERCIER, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                      April 25, 2018




In the Court of Appeals of Georgia
 A18A0434. MAYS v. THE STATE.

      DILLARD, Chief Judge.

      In August 2017, Damon Mays pleaded guilty as a “first offender” under OCGA

§ 42-8-60, et seq. (“the First Offender Act”) to one count each of aggravated assault,

misdemeanor family-violence battery, and third-degree cruelty to children. At

sentencing, the trial court adopted the State’s recommendation to sentence Mays to

ten years of probation. On appeal, Mays argues that, in sentencing him, the trial court

erred by failing to include a “behavioral[-]incentive date,” which is required under

OCGA § 17-10-1 (a) (1) (B). For the reasons set forth infra, we affirm.

      The record shows that on August 9, 2017, Mays pleaded guilty to the foregoing

offenses as part of a negotiated plea agreement with the State. During sentencing,

Mays acknowledged that, under the plea agreement, he would be given first-offender
treatment1 and sentenced to ten years of probation. Mays also testified that he

understood the benefit of being sentenced as a first offender—i.e., that if he

successfully completed probation without any violations or committing other crimes,

he would not be adjudicated guilty of the charged offenses or considered a convicted

felon. But Mays also recognized that, if he violated his probation or committed a new

crime, he could then be adjudicated guilty of these offenses and resentenced to the

maximum possible punishment. Having been advised of these consequences, Mays

reiterated his desire to be sentenced as a first offender.

      Ultimately, after advising Mays of the various rights he was waiving by

pleading guilty, as well as hearing the factual basis for the charges, the trial court

accepted Mays’s guilty plea as knowing and voluntary and sentenced him to ten years

of probation. Immediately thereafter, Mays requested that the court include a

behavioral-incentive date in his sentence, arguing that it was required by OCGA §

17-10-1 (a) (1) (B). But the trial court disagreed with Mays, finding that the statute



      1
       Under OCGA § 42-8-60 (a), “[w]hen a defendant has not been previously
convicted of a felony, the court may, upon a guilty verdict or plea of guilty or nolo
contendere and before an adjudication of guilt, without entering a judgment of guilt
and with the consent of the defendant, defer further proceedings and (1) [p]lace the
defendant on probation; or (2) [s]entence the defendant to a term of confinement.”

                                           2
did not apply when a defendant is sentenced as a first offender.2 In the end, rather

than make a final ruling, the trial court stated that “[i]f it turns out” that its

interpretation of the new statute was incorrect, “Mays could apply to have [his]

probation terminated three years from [the date of the sentencing hearing].”

Nevertheless, following the hearing, the trial court issued an order sentencing Mays

to ten years of probation as a first offender without making any reference to a

behavioral-incentive date. This appeal follows.

       In his sole enumeration of error, Mays argues that the trial court erred in failing

to give him a behavioral-incentive date as required by OCGA § 17-10-1 (a) (1) (B).

We disagree.


       2
         The trial court’s reasoning for declining to include a behavioral-incentive date
in Mays’s sentence is unclear. At first, the court stated, “I disagree with that
interpretation. My interpretation is that if it is not a [f]irst [o]ffender case and it’s
straight probation, then I’m to give a behavioral[-]incentive date if I don’t give
someone probation, but it’s not one of those crimes that’s laid out there. So I disagree
with that.” But the court did not explain where certain crimes were “laid out,” what
those crimes were, or how any particular crimes applied to the behavioral-incentive-
date requirement. Further, OCGA § 17-10-1 (a) (1) (B) applies when the defendant
has any prior felony convictions. Nevertheless, the court made clear that, at the very
least, it did not believe the behavioral-incentive-date requirement applied when
sentencing a defendant solely to probation as a first offender. Although the court
again stated, “it’s not one of those whatever crimes listed there” without further
explanation or clarification, it is evident, regardless of its reasoning, the court rejected
Mays’s argument that it must include a behavioral-incentive date in his sentence.

                                             3
      Under Georgia law, a sentence is void if “the court imposes punishment that

the law does not allow.”3 But a sentence that falls within the prescribed statutory

limits is “legally authorized and is not subject to review by this Court.”4 Here, Mays

contends his sentence does not fall within the prescribed statutory limits because it

violates OCGA § 17-10-1 (a) (1) (B)’s requirement that the court impose a

behavioral-incentive date. The interpretation of a statute is, of course, a question of

law, which is reviewed de novo on appeal.5 Indeed, when only a question of law is at

issue, as here, “we owe no deference to the trial court’s ruling and apply the ‘plain

legal error’ standard of review.”6

      When interpreting any statute, we necessarily begin our analysis with “familiar

and binding canons of construction.”7 In considering the meaning of a statute, our

      3
       Few v. State, 311 Ga. App. 608, 608 (716 SE2d 644) (2011) (punctuation
omitted); accord Spargo v. State, 332 Ga. App. 410, 411 (773 SE2d 35) (2015).
      4
       Few, 311 Ga. App. at 608; Wilder v. State, 343 Ga. App. 110, 112 (806 SE2d
200) (2017).
      5
       Kemp v. Kemp, 337 Ga. App. 627, 632 (788 SE2d 517) (2016) (punctuation
omitted); accord Jenkins v. State, 284 Ga. 642, 645 (2) (670 SE2d 425) (2008).
      6
       Kemp, 337 Ga. App. at 632 (punctuation omitted); accord Suarez v. Halbert,
246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000).
      7
        Holcomb v. Long, 329 Ga. App. 515, 517 (1) (765 SE2d 687) (2014); accord
In the Interest of L. T., 325 Ga. App. 590, 591 (754 SE2d 380) (2014); see, e.g.,

                                          4
charge as an appellate court is to “presume that the General Assembly meant what it

said and said what it meant.”8 Toward that end, we must afford the statutory text its

plain and ordinary meaning,9 consider the text contextually,10 read the text “in its most

natural and reasonable way, as an ordinary speaker of the English language would,”11



McNair v. State, 293 Ga. 282, 284 (745 SE2d 646) (2013) (“The rule of lenity is a
rule of construction that is applied only when an ambiguity still exists after having
applied the traditional canons of statutory construction.” (emphasis supplied)).
      8
         Holcomb, 329 Ga. App. at 517 (1) (punctuation omitted); accord Chan v.
Ellis, 296 Ga. 838, 839 (1) (770 SE2d 851) (2015); May v. State, 295 Ga. 388, 391
(761 SE2d 38) (2014); Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337)
(2013).
      9
        Holcomb, 329 Ga. App. at 517 (1); accord Deal, 294 Ga. at 172 (1) (a); see
also State v. Able, 321 Ga. App. 632, 636 (742 SE2d 149) (2013) (“A judge is
charged with interpreting the law in accordance with the original and/or plain
meaning of the text at issue (and all that the text fairly implies) . . . .”).
      10
          Holcomb, 329 Ga. App. at 517 (1); see also Arizona v. Inter Tribal Council
of Arizona, Inc., ___ U.S. ___ (II) (B) (133 SCt 2247, 186 LE2d 239) (2013) (Scalia,
J.) (“Words that can have more than one meaning are given content, however, by their
surroundings.” (punctuation and citation omitted)); Deal, 294 Ga. at 172 (1) (a)
(“[W]e must view the statutory text in the context in which it appears[.]”); Scherr v.
Marriott Int’l, Inc., 703 F3d 1069, 1077 (II) (C) (2) (7th Cir. 2013) (Manion, J.)
(noting that in statutory construction cases, courts “begin with the language of the
statute itself and the specific context in which that language is used” (punctuation and
citation omitted)).
      11
         Holcomb, 329 Ga. App. at 518 (1) (punctuation omitted); accord Zaldivar
v. Prickett, 297 Ga. 589, 591 (774 SE2d 688) (2015); FDIC v. Loudermilk, 295 Ga.
579, 588 (2) (761 SE2d 332) (2014).

                                           5
and seek to “avoid a construction that makes some language mere surplusage.”12

Further, when the language of a statute is “plain and susceptible to only one natural

and reasonable construction, courts must construe the statute accordingly.”13

      Turning to the statute at hand, which became effective on July 1, 2017,14

OCGA § 17-10-1 (a) (1) (B) provides, in relevant part:

               When a defendant is convicted of felony offenses, has no prior
      felony conviction, and the court imposes a sentence of probation, not to
      include a split sentence, the court shall include a behavioral[-]incentive
      date in its sentencing order that does not exceed three years from the
      date such sentence is imposed.


Here, it is undisputed that Mays has no prior felony convictions, and the trial court

imposed only a sentence of probation. But significantly, the plain language of OCGA

§ 17-10-1 (a) (1) (B) provides that it only applies “[w]hen a defendant is convicted



      12
          Holcomb, 329 Ga. App. at 518 (1) (punctuation omitted); accord In the
Interest of L. T., 325 Ga. App. at 592; Kennedy v. Carlton, 294 Ga. 576, 578 (2) (757
SE2d 46) (2014).
      13
         Holcomb, 329 Ga. App. at 518 (1) (punctuation omitted); see Deal, 294 Ga.
at 173 (1) (a) (“[I]f the statutory text is clear and unambiguous, we attribute to the
statute its plain meaning, and our search for statutory meaning is at an end.”
(punctuation omitted)).
      14
           See Ga. L. 2017, Act 226, § 2-1.

                                              6
of felony offenses.”15 Because Mays was sentenced as a first offender, he was not

convicted of any felony offenses. Indeed, as explained by our Supreme Court, “[a]

first offender’s guilty plea does not constitute a ‘conviction’ as that term is defined

in the Criminal Code of Georgia . . . .”16 And Mays acknowledged as much when he

requested and was granted first-offender status at sentencing—i.e., that if he

successfully completed probation without any violations or committing other crimes,

he would not be adjudicated guilty of the charged offenses or considered a convicted

felon. Thus, given the plain language of OCGA § 17-10-1 (a) (1) (B), the trial court

correctly concluded that it was not required to include a behavioral-incentive date in

Mays’s ten-year sentence of probation because his guilty plea did not result in a

conviction. Significantly, in previous cases, Georgia courts have held that when a

defendant pleads guilty to a felony as a first offender and his sentence of probation




      15
           (Emphasis supplied).
      16
        Williams v. State, 301 Ga. 829, 831 (2) (804 SE2d 398) (2017) (punctuation
omitted and emphasis supplied); accord Davis v. State, 273 Ga. 14, 15 (537 SE2d
663) (2000); see Cook v. State, 338 Ga. App. 489, 497 (4) (790 SE2d 283) (2016)
(“[U]nder the first offender statute, until an adjudication of guilt is entered, there is
no conviction. The case has, in effect, been suspended during the period of probation
until eventually the probation is either revoked or it is discharged; unless it is
revoked, there is no conviction.” (punctuation and footnotes omitted)).

                                           7
is never discharged or revoked, other statutes requiring a prior felony conviction do

not apply when the defendant commits a subsequent crime.17

      Nevertheless, Mays argues that, in enacting OCGA § 17-10-1 (a) (1) (B), the

General Assembly could not have “intended” to preclude defendants who qualify for

first-offender treatment from the benefit of a behavioral-incentive date because doing

so does not “square with common sense or good public policy.” And in support, he

lists several allegedly undesirable consequences of interpreting the statute as the trial

court did. For example, he claims that the trial court’s interpretation of OCGA § 17-

10-1 (a) (1) (B) would force defendants to choose between receiving first-offender

treatment and a behavioral-incentive date. May’s other examples highlight his


      17
          See, e.g., Davis, 273 Ga. at 14-15 (holding that the trial court improperly
sentenced the defendant as a recidivist under OCGA § 17-10-7 (b) (2), which applies
to a person who has been convicted of a serious violent felony, and the defendant
pleaded guilty to the predicate felonies as a first offender, his probation was never
discharged or revoked, and he was never convicted of those predicate crimes); Davis
v. State, 269 Ga. 276, 277 (2) (496 SE2d 699) (1998) (“A first offender’s guilty plea
does not constitute a ‘conviction’ as that term is defined in the Criminal Code of
Georgia (OCGA § 16-1-3 (4)), and may not serve as the basis for a statutory
suspension of a driver’s license.”); Lee v. State, 294 Ga. App. 796, 798 (670 SE2d
488) (2008) (holding that evidence that the defendant had previously pleaded guilty
to a felony as a first offender was inadmissible to impeach him at a trial on
subsequent charges because “unless there is an adjudication of guilt, a witness may
not be impeached on general credibility grounds by evidence of a first[-]offender
record”).

                                           8
concern that, under the trial court’s interpretation of this statute, there would be

instances when a defendant who had been convicted of a felony would receive more

favorable treatment from a behavioral-incentive date than first-time offender status.

In sum, Mays contends that a behavioral-incentive date is “clearly meant to encourage

good behavior on probation with the incentive of receiving early termination of the

probated sentence” and “[i]t makes common sense that the legislature would intend

to provide such an incentive to first[-]time felony defendants.”

      Generally speaking, Mays is correct that “courts must construe statutes in a

way that square[s] with common sense and sound reasoning.”18 Furthermore, we have

a duty to “consider the results and consequences of any proposed construction and not

. . . construe a statute as will result in unreasonable or absurd consequences not

contemplated by the legislature [as evinced by the relevant text].”19 But even if

      18
         Palmyra Park Hosp., Inc. v. Phoebe Sumter Med. Ctr., 310 Ga. App. 487,
491 (1) (714 SE2d 71) (2011) (punctuation omitted); accord Staley v. State, 284 Ga.
873, 874 (1) (672 SE2d 615) (2009); see Muscogee Cty. Bd. of Tax Assessors v. Pace
Indus., Inc., 307 Ga. App. 532, 535 (705 SE2d 678) (2011) (“Our interpretation of [a]
statute must square with common sense and sound reasoning.” (punctuation
omitted)).
      19
        Palmyra Park Hosp., Inc., 310 Ga. App. at 491 (1) (punctuation omitted);
accord Staley, 284 Ga. at 873-74 (1); see McKinney v. Fuciarelli, 298 Ga. 873, 877
(785 SE2d 861) (2016) (holding that the language of a statute did not meet the
absurdity test and noting that, while reasonable legislators may have written the

                                         9
Mays’s public-policy concerns are valid, he has not identified any absurd results of

adhering to the plain language of OCGA § 17-10-1 (a) (1) (B). And as we have

repeatedly emphasized, when the language of a statute is “plain and susceptible to

only one natural and reasonable construction, [as here,] courts must construe the

statute accordingly.”20 This is because under our “system of separation of powers this

Court does not have the authority to rewrite statutes.”21 Indeed, the doctrine of


statute differently, the application of the plain language of the statute was “not so
monstrous that all mankind would, without hesitation, unite in rejecting [it].”
(punctuation omitted)); Inagawa v. Fayette Cty., 291 Ga. 715, 717 (1) (732 SE2d
421) (2012) (explaining that when interpreting statutes, “[w]e are required to give all
words in the enactment due weight and meaning and are forbidden from disregarding
any legislative language unless the failure to do so would lead to an absurdity
manifestly not intended by the legislature [as evinced by the relevant statutory text].”
(punctuation omitted and emphasis supplied)); Spivey v. State, 274 Ga. App. 834, 835
(1) (619 SE2d 346) (2005) (noting that when interpreting a statute, “we begin with
the literal text; where the literal text of a statute is plain and does not lead to absurd
or impracticable consequences, we apply the statute as written without further
inquiry.” (emphasis supplied); see also ANTONIN SCALIA & BRYAN A. GARNER,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS 239 (1st ed. 2012) (“The
doctrine of absurdity is meant to correct obviously unintended dispositions, not to
revise purposeful dispositions that, in light of other provisions of the applicable code,
make little if any sense.”).
      20
           Chase, 285 Ga. at 695 (2); see supra note 13 & accompanying text.
      21
          Allen v. Wright, 282 Ga. 9, 12 (1) (644 SE2d 814) (2007) (punctuation
omitted); accord State v. Fielden, 280 Ga. 444, 448 (629 SE2d 252) (2006); see West
v. State, 300 Ga. 39, 44 (793 SE2d 57) (2016) (“While this Court has the authority to
narrow a statute to avoid unconstitutional infirmities under our system of separation

                                           10
separation of powers is “an immutable constitutional principle which must be strictly

enforced[,] [and] [u]nder that doctrine, statutory construction belongs to the courts,

legislation to the legislature.”22 Simply put, regardless of whether Mays or this Court

would have drafted OCGA § 17-10-1 (a) (1) (B) differently based on public policy

or fairness concerns, Mays fails to identify any portion of the relevant statutory text

that is ambiguous, and under such circumstances, we must abide by the plain

language of the statute, which requires a prior conviction.23 In fact, as noted supra,


of powers , this Court does not have the authority to rewrite statutes.” (punctuation
omitted)).
      22
          Allen, 282 Ga. at 12 (1) (punctuation omitted); accord Turner v. Ga. River
Network, 297 Ga. 306, 308-09 (773 SE2d 706) (2015); Mason v. Home Depot U.S.A.,
Inc., 283 Ga. 271, 276 (3) (658 SE2d 603) (2008); see also Bellsouth
Telecommunications, LLC v. Cobb Cty., 342 Ga. App. 323, 335 (802 SE2d 686)
(2017) (Dillard, J., concurring fully and specially), cert. granted (April 16, 2018)
(“The separation of powers is essential to the maintenance of our constitutional
republic, and it is high time that our discussion of statutory interpretation reflects the
reality of our jurisprudence and acknowledges the strict demarcation line between
judicial interpretation and legislating. We are judges, not black-robed philosophers.”).
      23
         See supra note 13 & accompanying text; see also Abdulkadir v. State, 279
Ga. 122, 124 (2) (610 SE2d 50) (2005) (holding that, while there may be compelling
reasons to apply the rape-shield statute to crimes other than rape, the General
Assembly drafted the statute to only apply to rape, and any expansion of that statute
must also come from that legislative body); Integon Indem. Corp. v. Canal Ins. Co.,
256 Ga. 692, 693 (353 SE2d 186) (1987) (“Expressions of the legislature through
statutes are conclusive on the question of public policy; and courts cannot declare
agreements or acts authorized by statute to be contrary to public policy.”); Eckhardt

                                           11
Georgia courts have done just that when interpreting other statutes that are only

applicable when the defendant has a prior conviction.24

      For all these reasons, we affirm the trial court’s decision not to include a

behavioral-incentive date in Mays’s sentence.

      Judgment affirmed. Doyle, P. J., and Mercier, J., concur.




v. Yerkes Reg’l Primate Ctr., 254 Ga. App. 38, 39 (1) (561 SE2d 164) (2002)
(explaining that “[r]egardless of whether this [C]ourt agrees with appellants that there
should be a public policy exception to the at-will doctrine [at issue in the] case, we
are constrained to leave that determination to the General Assembly.” (emphasis
supplied)).
      24
           See supra 17.

                                          12
