                               FOURTH DIVISION
                                 BARNES, P. J.,
                             RAY and MCMILLIAN, JJ.

                    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


                                                                   February 26, 2016


In the Court of Appeals of Georgia
 A15A2343. MALLORY v. THE STATE.

      BARNES, Presiding Judge.

      Acting pro se, Quentin Mallory appeals the trial court’s denial of his motion

to remove a provision of his probation banishing him from Bartow and Gordon

Counties. For the reasons that follow, we affirm the trial court’s ruling.

      A Bartow County jury convicted Mallory of robbery by force, false

imprisonment, and simple battery, and in October 2007, the trial court sentenced him

to serve 10 years in confinement, followed by 15 years on probation. The terms of his

probation directed that he have no contact with the victim or her place of work and

banished from Bartow and Gordon Counties, which comprise the Cherokee Judicial

Circuit.1

      In June 2015, Mallory filed a pro se motion to modify the terms of his

probation. In his motion, he said that he had previously been released from

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          OCGA § 15-6-1 (9).
confinement under this sentence and had been placed on probation. He further stated

that, “[b]ecause of [his] inability to rely upon his only possible family support system

which is exclusively present in Bartow County, he again committed crimes while on

parole in Hall County. The Hall County sentence of twelve years, with six to serve,

is being served concurrently with the sentence in this case.”

      Mallory alleged in his motion that the Board of Pardons and Paroles had

notified him that he was required to complete a work release program before he could

be released on parole. Due to his banishment from Bartow County, he asserts, the

Department of Corrections had advised him that he is ineligible for assignment to a

transition center to complete the work release program because his “only possible

parole addresses are with his family in Bartow County.” He acknowledged that

prohibiting contact with the victim was a reasonable requirement, but argued that he

had no prior history with the victim that would justify banning him from the area

completely. The trial court denied the motion to modify the term of probation, and

Mallory appeals.

      Still acting pro se, Mallory asserts on appeal that the trial court abused its

discretion by imposing the banishment provision “without a rational basis” for doing

so, and in denying his motion to modify his sentence without considering either that

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he had no relationship with the victim or the impact of the provision on his

rehabilitation. He argues that the purpose of allowing a defendant to serve part or all

of a criminal sentence on probation is to permit the court to exercise supervisory

control over the rehabilitation of an individual who has committed criminal acts, and

that banishing him from Bartow County guarantees that he cannot succeed because

he needs a family support system “due to his intellectual and psychological

disabilities.”

       Our constitution provides that “banishment beyond the limits of the state shall

[not] be allowed as a punishment for crime.” Ga. Const of 1983, Art. I, § I, ¶ XXI.

That provision “was first added in the 1877 version of the state constitution and has

been carried through verbatim in the present constitution.” Jason S. Alloy,

“‘158-County Banishment’ in Georgia: Constitutional Implications under the State

Constitution and the Federal Right to Travel,” 36 Ga. L. Rev. 1083, 1093 (2002). In

1974, our Supreme Court considered whether the original “drafters of this

constitutional provision intended to prohibit banishment ‘beyond the limits of the

state’ but not to prohibit banishment from specified areas within the state,” and

concluded that they did not intend to prohibit banishment from areas within the state.

State v. Collett, 232 Ga. 668 (208 SE2d 472) (1974).

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       The legislature has also established that a sentencing court may require a

probationer to remain within a specified location during his period of probation, but

in 2006, it amended that provision to require that banishment to a particular area must

“consist of at least one entire judicial circuit as described by Code Section 15-6-1”

and cannot be an area where “any service or program in which the probationer must

participate as a condition of probation is not available.” OCGA § 42-8-35 (a) (6) (A),

(B).

       Further, while “[t]he trial court has broad discretion in fashioning probation

conditions[, . . .] banishment conditions are not unlimited: such conditions must not

be unreasonable or otherwise fail to bear a logical relationship to the rehabilitative

scheme of the sentence pronounced.” (Citation and punctuation omitted.) Terry v.

Hamrick, 284 Ga. 24, 26-27 (3) (663 SE2d 256) (2008). And although the sentencing

court retains jurisdiction over a probationer and may revoke, rescind, or modify the

probation terms, OCGA § 42-8-34 (g), Mallory “bears the burden of demonstrating

that his sentence of banishment is unreasonable.” Shook v. State, 300 Ga. App. 59, 61

(3) (684 SE2d 129) (2009).

       Our appellate court have not considered whether the proscriptions of OCGA

§ 42-8-35 (a) (6) apply when a trial court imposes a condition of probation that

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banishes a defendant from a particular location rather than confines him to a location,

although logically if one is banished from 158 counties, for example, one is therefore

confined to the remaining county. Our Supreme Court in Terry, 284 Ga. at 26 (3), n.

2., noted that the 2006 amendment to OCGA § 48-2-35 (a) (6) limiting a trial court’s

ability to confine a probationer to a particular area did not apply to the 1995 sentence

at issue in that case, which banished the defendant from all but one Georgia county,

and we have found no case specifically addressing this issue.

      Here, Mallory has not met his burden of proving on the record that the

condition of probation banishing him from Bartow and Gordon Counties is

unreasonable. He was indicted for and convicted of (1) taking money from the victim

by force, (2) confining and detaining the victim without legal authority, and (3)

making physical contact of an insulting and provoking nature to the victim’s person.

As a condition of probation, Mallory would be required to avoid contact with the

victim and her place of work in addition to being banished from Bartow and Gordon

Counties. The record contains no evidence supporting Mallory’s contentions

regarding the restrictions on his ability to obtain release from confinement and begin

serving the remainder of his sentence under probation.



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      Considering the absence of evidence to support Mallory’s contention that the

terms of his probation are unreasonable, we cannot say the trial court abused its

discretion by denying Mallory’s motion to modify his sentence.

      Judgment affirmed. Ray and McMillian, JJ., concur.




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