                              SECOND DIVISION
                               ANDREWS, P. J.,
                         MILLER, P. J., and BRANCH, 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


                                                                     March 16, 2016




In the Court of Appeals of Georgia
 A15A2292. MATHIS v. THE STATE.

      BRANCH, Judge.

      After Cecil Wade Mathis, Jr., pled guilty in Washington County Superior Court

to two counts of violating OCGA § 16-3-30 (a), the trial court imposed a recidivist

sentence pursuant to OCGA § 17-10-7 (c). Mathis now appeals pro se from the trial

court’s denial of his motion to vacate or modify his sentence, arguing that the trial

court erred in sentencing him as a recidivist. In support of this claim, Mathis relies

on OCGA § 17-10-7 (b.1), which makes the recidivist sentencing statute inapplicable

to cases involving certain drug offenses, including violations of OCGA § 16-13-30

(a). We agree that the trial court erred in sentencing Mathis, and we therefore reverse

the trial court’s order and remand the case for further proceedings consistent with this

opinion.
      “Because this appeal involves a question of law, we review both the record and

the decision of the court below de novo.” Johnson v. Allied Recycling, 323 Ga. App.

427 (746 SE2d 728) (2013) (citation and punctuation omitted). The facts are

undisputed and show that during a traffic stop in October 2013, police discovered

methamphetamine and the prescription drug Vyvanse in Mathis’s car. Police arrested

Mathis, who was subsequently indicted on a number of charges, including two counts

of possession of a controlled substance, in violation of OCGA § 16-13-30 (a).

Following Mathis’s indictment, the State filed notice of its intent to seek recidivist

sentencing. The prior felonies set forth in the notice included a 1987 conviction for

the sale of marijuana,1 a 1994 conviction for the manufacture of marijuana,2 and a

1994 conviction for criminal intent to commit an escape. Before trial, Mathis entered

a negotiated guilty plea, pursuant to which he pled guilty to both counts of violating

OCGA § 16-13-30 (a) and to two traffic violations.3 At the plea hearing, the State

recommended that Mathis be sentenced as a recidivist under OCGA § 17-10-7 (c)



      1
          A violation of OCGA § 16-13-30 (j) (1).
      2
          Also a violation of OCGA § 16-13-30 (j) (1).
      3
       The two traffic violations were failure to maintain lane and having an open
container of alcohol in his car.

                                          2
based upon the three earlier felony convictions of which the State had given notice.

OCGA § 17-10-7 (c), in turn, provides that:

      Except as otherwise provided in subsection (b) or (b.1) of this Code
      section . . . any person who, after having been convicted under the laws
      of this state for three felonies . . . , commits a felony within this state
      shall, upon conviction for such fourth offense or for subsequent
      offenses, serve the maximum time provided in the sentence of the judge
      based upon such conviction and shall not be eligible for parole until the
      maximum sentence has been served.


      The trial court accepted the State’s sentencing recommendation and on

February 28, 2014, it sentenced Mathis to three years on each of the possession

counts with the sentences to run consecutively. Approximately six months later,

Mathis filed a pro se motion to modify his sentence, to which he attached a copy of

OCGA § 17-10-7 (b.1).4 That code section, which became effective on July 1, 2013,

provides in relevant part that the recidivist sentencing provision found in OCGA §

17-10-7 (c) is inapplicable to certain offenses involving the simple possession of



      4
         Mathis’s motion was timely because a trial court “retains jurisdiction to
correct a void sentence at any time.” Rooney v. State, 287 Ga. 1, 2 (2) (690 SE2d 804)
(2010) (citation and punctuation omitted). And “[a] sentence is void if the court
imposes punishment that the law does not allow.” Id. (citation and punctuation
omitted).

                                          3
controlled and counterfeit substances or the possession, manufacture, sale, delivery,

or distribution of marijuana. Specifically, OCGA § 17-10-7 (b.1) provides that

recidivist sentencing “shall not apply to a second or any subsequent conviction for

any violation of subsection (a)[5], paragraph (1) of subsection (i)[6], or subsection

(j)[7] of Code Section 16-13-30.” Mathis argued that because two of the prior felony

convictions relied on by the State in seeking recidivist sentencing were for violations

of OCGA § 16-13-30 (j), those convictions could not be used to sentence him as a

recidivist for violations of OCGA § 16-13-30 (a).

      The trial court denied Mathis’s motion, finding that OCGA § 17-10-7 (b.1) bars

recidivist sentencing for simple possession and marijuana-related offenses only where

a defendant is convicted two or more times of violating the exact same subsection of

OCGA § 16-13-30. In other words, the trial court read the sentencing statute as


      5
       OCGA § 16-13-30 (a) makes it illegal “for any person to purchase, possess,
or have under his or her control any controlled substance.”
      6
       OCGA § 16-13-30 (i) (1) makes it illegal “for any person to possess or have
under his or her control a counterfeit substance.”
      7
         OCGA § 16-13-30 (j) (1) makes it illegal “for any person to possess, have
under his or her control, manufacture, deliver, distribute, dispense, administer,
purchase, sell, or possess with intent to distribute marijuana,” while OCGA § 16-13-
30 (j) (2) provides that any of the offenses specified in subsection (j) (1) constitutes
a felony.

                                           4
meaning that recidivist sentencing could not apply to a second or subsequent

conviction for violating OCGA § 16-13-30 (a); or to a second or subsequent

conviction for violating OCGA § 16-13-30 (i) (1); or to a second or subsequent

conviction for violating OCGA § 16-13-30 (j). Thus, the court concluded that because

Mathis had never been convicted previously of violating OCGA § 16-13-30 (a),

OCGA § 17-10-7 (b.1) permitted the court to use Mathis’s prior convictions under

OCGA § 16-13-30 (j) to sentence him as a recidivist for his first two violations of that

code section.

      On appeal, Mathis argues that the trial court misinterpreted OCGA § 17-10-7

(b.1) because it failed to give effect to that part of the statute which provides that

recidivist sentencing “shall not apply to a second or any subsequent conviction for

any violation of” subsections (a) (i) (1), or (j) of OCGA § 16-13-30. (Emphasis

supplied.) And when read in its entirety, Mathis contends, OCGA § 17-10-7 (b.1)

means that a defendant who has been convicted previously of violating either

subsection (a) or subsection (i) (1) or subsection (j) of OCGA § 16-13-30 may not be

sentenced as a recidivist for a second or any subsequent conviction for violating any

of those code sections – even if the defendant had never been convicted previously

of violating the exact subsection for which he is being sentenced. We agree.

                                           5
       In determining the meaning of OCGA § 17-10-7 (b.1), we bear in mind that

“[t]he cardinal rule” of statutory construction “is to ascertain the legislative intent and

purpose in enacting the law, and then to give it that construction which will effectuate

the legislative intent and purpose.” RadioShack Corp. v. Cascade Crossing II, 282

Ga. 841, 843 (653 SE2d 680) (2007) (citation and punctuation omitted). See also

OCGA § 1-3-1 (a) (“[i]n all interpretations of statutes, the courts shall look diligently

for the intention of the General Assembly, keeping in view at all times the old law,

the evil, and the remedy”). With respect to the legislature’s intent,

       we presume that the General Assembly meant what it said and said what
       it meant. To that end, we must afford the statutory text its plain and
       ordinary meaning, we must view the statutory text in the context in
       which it appears, and we must read the statutory text in its most natural
       and reasonable way, as an ordinary speaker of the English language
       would.


Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d 337) (2013) (citations,

punctuation and footnote omitted). Additionally, we must “‘construe statutes to give

sensible and intelligent effect to all of their provisions and to refrain from any

interpretation which renders any part of the statutes meaningless.’” McNair v. State,

326 Ga. App. 516, 519 (757 SE2d 141) (2014), quoting R. D. Brown Contractors v.


                                            6
Board of Ed. of Columbia County, 280 Ga. 210, 212 (626 SE2d 471) (2006).

“Applying these principles, if 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.”

Deal, 294 Ga. at 173 (1) (a).

      Moreover, to the extent that OCGA § 17-10-7 (b.1) can be seen as ambiguous,

both the applicable rules of statutory interpretation and the rule of lenity require that

we resolve that ambiguity in favor of Mathis and against the State. “‘Criminal statutes

are construed strictly against the State, . . . and their operation should not be limited

or extended by application of subtle and forced interpretations.’” Barber v. State, 316

Ga. App. 701, 703, n. 5 (730 SE2d 176) (2012) quoting Perkins v. State, 277 Ga. 323,

325-326 (2) (588 SE2d 719) (2003) (construing OCGA § 17-10-7 (c) against the State

and refusing to apply recidivist sentencing). See also Vines v. State, 269 Ga. 438,

438-439 (499 SE2d 630) (1998) (where a criminal statute “is susceptible to more than

one reasonable interpretation, the interpretation most favorable to the party facing

criminal liability must be adopted”) (citation and punctuation omitted). Additionally,

as our Supreme Court has previously explained, under the rule of lenity, “where any

uncertainty develops as to which penal clause is applicable, the accused is entitled to

have the lesser of two penalties administered.” Dixon v. State, 278 Ga. 4, 7 (1) (d)

                                           7
(596 SE2d 147) (2004) (footnote and punctuation omitted). See also McNair v. State,

293 Ga. 282, 283-284 (745 SE2d 646) (2013) (“[t]he rule of lenity applies when a

statute, or statutes, establishes, or establish, different punishments for the same

offense, and provides that the ambiguity is resolved in favor of the defendant, who

will then receive the lesser punishment”).8 Bearing these principles in mind, we turn

to the statutory language at issue.

      We begin with the fact that OCGA § 17-10-7 (b.1) uses the word “or” as a

disjunctive. When so used, the word “or” is usually interpreted as being inclusive,

thereby expanding the statute’s coverage. See Gearinger v. Lee, 266 Ga. 167, 169 (2)

(465 SE2d 440) (1996) (applying a statute addressing probation violations and

holding that the statute’s use of the term “or” expanded the conduct covered


      8
         We note that the rule of lenity is usually applied in those cases where the
defendant’s conduct is punishable under two different criminal statutes. See McNair,
293 Ga. at 285 (conduct punishable under either the financial-transaction theft statute
or the identity-theft statute); Dixon v. State, 278 Ga. at 7 (1) (d) (conduct punishable
as either aggravated child molestation or statutory rape). As best we can tell from the
current record, the conduct at issue in this case could only be prosecuted under
OCGA § 16-13-30 (a). We find, however that the concerns underlying the rule of
lenity also exist where a court is trying to determine whether the legislature intended
that certain convictions be subject to recidivist sentencing. See Dixon, 278 Ga. at 7
(1) (d) (noting that the rule of lenity “derives from the instinctive distaste against men
languishing in prison unless the lawmaker has clearly said that they should”)
(footnote and punctuation omitted).

                                            8
thereunder); United States v. Popkin, 943 F3d 1535, 1538 (11th Cir. 1991)

(interpreting the use of the broad disjunctive “or” as inclusive, expanding the conduct

that could violate the statute). See generally Reiter v. Sonotone Corp., 442 U. S. 330,

339 (99 SCt 2236, 60 LEd2d 931) (1979) (“[c]anons of construction ordinarily

suggest that terms connected by a disjunctive be given separate meanings, unless the

context dictates otherwise”). We therefore conclude that the legislature’s use of the

disjunctive in OCGA § 17-10-7 (b.1) reflects its desire to expand, rather than limit,

the statute’s coverage.

      Additionally, as noted above, OCGA § 17-10-7 (b.1) provides that recidivist

sentencing “shall not apply to a second or subsequent conviction for any violation”

of subsections (a), (i) (1), or (j) of OCGA § 16-13-30. The normal meaning attributed

to “any,” in turn, includes “no matter which . . . whichever, of whatever kind.”

Compact     Oxford    English    Dictionary,   538    (2d   Ed.   1991). See      also

http//www.merriam-webster.com/dictionary/any (defining “any” as “one or some

indiscriminately of whatever kind”); Black’s Law Dictionary, 86 (5th Ed. 1979)

(defining “any” as “one indiscriminately of whatever kind or quantity”).9 Given the

      9
         When looking for the generally understood or common meaning of a
particular word, courts most often look to dictionary definitions. See, e. g., Abdel-
Samed v. Dailey, 294 Ga. 758, 763 (2) (755 SE2d 805) (2014); Warren v. State, 294
Ga. 589, 590-591 (1) (755 SE2d 171) (2014).

                                          9
commonly understood meaning of “any,” the statute’s reference to “any violation” of

OCGA § § 16-13-30 (a), (i) (1), or (j) supports the conclusion that a defendant who

has been convicted previously of violating either subsection (a) or subsection (i) (1)

or subsection (j) of OCGA § 16-13-30 may not be sentenced as a recidivist for a

second or subsequent conviction for violating any of those code sections, regardless

of whether the defendant has been convicted previously of violating the exact

subsection for which he is being sentenced

      In light of the foregoing, and applying the principle that OCGA § 17-10-7 (b.1)

must be construed strictly against the State, we find that Mathis’s interpretation of

OCGA § 17-10-7 (b.1) is the correct one. Accordingly, recidivist sentencing is not

allowed where a defendant has previous convictions for violating subsection (i) (1)

(simple possession of a counterfeit substance) or subsection (j) (marijuana-related

offenses) and is thereafter convicted of simple possession of a controlled substance

(subsection (a)).10 We therefore find that the trial court erred in sentencing Mathis as

a recidivist, and we reverse the trial court’s order denying Mathis’s motion to vacate


      10
           We note that a defendant convicted of violating subsection (a), subsection
(i) (1), or subsection (j) of OCGA § 16-13-30 could be sentenced as a recidivist if the
prior felony convictions relied on by the State were for anything other than simple
possession or marijuana-related offenses.

                                          10
or modify his sentence. The case is remanded for further proceedings consistent with

this opinion.

      Judgment reversed and case remanded with direction. Andrews, P. J., and

Miller, P. J., concur.




                                        11
