                             SECOND DIVISION
                               MILLER, P. J.,
                          DOYLE, P. J., and REESE, 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


                                                                     January 2, 2018




In the Court of Appeals of Georgia
 A17A2099. DANIELS v. THE STATE.

      REESE, Judge.

      In May 2016, Christopher Daniels entered a negotiated plea of guilty to ten

counts of statutory rape and seven counts of child molestation.1 The Superior Court

of Gwinnett County sentenced Daniels to serve concurrent sentences of 15 years in

confinement on each of the child molestation charges followed by concurrent

sentences of 15 years of probation on each of the statutory rape charges. On May 8,

2017, Daniels filed in the sentencing court a “motion to vacate void sentence / motion

to withdraw guilty plea as a matter of right / motion to reduce sentence and motion

for hearing.” The trial court denied Daniels’s motion, and he appeals. For the reasons

set forth, infra, we vacate Daniels’s sentence and remand for resentencing.

      1
          See OCGA §§ 16-6-3 (a); 16-6-4 (a).
      Daniels argues that the trial court erred in failing to vacate his void sentence.

The State concedes that the trial court erred in denying Daniels’s motion and that

remand for resentencing is appropriate.

      Daniels was charged with seven counts of aggravated child molestation2

(Counts 1, 3, 7, 8, 13, 15, and 17), but pled guilty on each of those charges to the

lesser included offense of child molestation. Daniels was also charged with ten counts

of statutory rape, eight of which were alleged to have taken place between June and

September 2014, when Daniels was twenty years old, and the other two in October

2014 (Counts 16 and 18), after Daniels had turned twenty-one.3

      As part of the negotiated plea deal, the State made an overall sentence

recommendation of 30 years with the first 15 to be served in confinement. The court

adopted the terms as negotiated, sentencing Daniels to concurrent sentences of 15

years of imprisonment on each of the child molestation charges followed by

concurrent sentences of 15 years of probation on each of the statutory rape charges.




      2
          See OCGA § 16-6-4 (c).
      3
          The State dismissed an additional count, charging the crime of rape.

                                           2
      “A sentencing court retains jurisdiction to correct a void sentence at any time.”4

A void sentence is one that imposes punishment that the law does not allow.5

      Here, the relevant law is OCGA § 17-10-6.2 (b) (2013),6 which pertains to the

sentence of a person convicted of a sexual offense and defines “sexual offense” as

including child molestation if the offender is 19 years of age or older at the time of

the crime, and statutory rape if the offender is 21 years of age or older.7 OCGA § 17-

10-6.2 (b) expressly and unambiguously requires the trial court to issue a “split

sentence” for these offenses that includes the statutory minimum term of

imprisonment plus at least one year of probation.8

      OCGA § 17-10-6.2 (b) requires a split sentence on each sexual offense
      and . . . under [OCGA] §§ 17-10-1 (a) (2) and 17-10-10 (a), the trial
      court may run a split sentence partially consecutive and partially


      4
        Spargo v. State, 332 Ga. App. 410 (773 SE2d 35) (2015) (citing OCGA § 17-
9-4) (additional citation and punctuation omitted).
      5
          Spargo, 332 Ga. App. at 411.
      6
         Subsection (b) was amended, effective July 1, 2017, in part to provide that
“when a court imposes consecutive sentences for sexual offenses, the requirement
that the court impose a probated sentence of at least one year shall only apply to the
final consecutive sentence imposed.” HB 341, Ga. L. 2017, § 5.
      7
          See OCGA § 17-10-6.2 (a) (4), (5); see also OCGA § 16-6-4 (b) (2).
      8
          Clark v. State, 328 Ga. App. 268, 269 (1) (761 SE2d 826) (2014).

                                          3
      concurrent to another sentence, such that the probationary component
      of a split sentence may be served concurrently with a period of
      confinement imposed by the sentence on another count.9


      Although Daniels’s sentences on each of the child molestation charges fall

within the acceptable statutory range of punishment for the crimes,10 the trial court

failed to impose the split sentences required under OCGA § 17-10-6.2 (b), rendering

the sentences illegal and void.11

      Similarly, because Daniels was 21 years old when he committed two of the

statutory rape offenses, the probation-only sentences on those charges were also

void.12 Under OCGA § 17-10-6.2 (b), “[n]o portion of the mandatory minimum

sentence imposed shall be . . . probated[.]”




      9
          State v. Riggs, 301 Ga. 63, 74 (2) (b) (799 SE2d 770) (2017).
      10
        See OCGA § 16-6-4 (b) (1) (“[A] person convicted of a first offense of child
molestation shall be punished by imprisonment for not less than five nor more than
20 years and shall be subject to the sentencing and punishment provisions of Code
Sections 17-10-6.2 and 17-10-7.”).
      11
        See New v. State, 327 Ga. App. 87, 106-108 (5) (755 SE2d 568) (2014);
Spargo, 332 Ga. App. at 412; Clark, 328 Ga. App. at 270 (1).
      12
           See Thomas v. State, 272 Ga. App. 279 (1) (612 SE2d 99) (2005).

                                           4
      Although the trial court has discretion to deviate from the mandatory minimum

when the prosecuting attorney and the defendant have agreed to a sentence below the

mandatory minimum,13 the agreement in this case was for an overall sentence of 30

years with the first 15 years to be served in confinement. Further, even if the court

intended to deviate from the statutory sentences, it did not issue a written order

setting forth its reasons to deviate, as required by OCGA § 17-10-6.2 (c) (2).

      Accordingly, we vacate Daniels’s entire sentence14 and remand this case to the

trial court for resentencing in accordance with the provisions of OCGA § 17-10-6.2.

      Sentence vacated and case remanded for resentencing. Miller, P. J., and Doyle,

P. J., concur.




      13
         OCGA § 17-10-6.2 (c) (1). The court may also deviate from the mandatory
minimum provided that certain conditions are met, including that “[t]he court has not
found evidence of a relevant similar transaction[.]” OCGA § 17-10-6.2 (c) (1) (C).
The court did not set forth the required written findings, however, and the record
indicates that Daniels was either on bond or on probation on a similar charge when
he committed the offenses at issue here. Thus, this provision does not render
Daniels’s sentence valid.
      14
           See New, 327 Ga. App. at 108-109 (5).

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