                              FOURTH DIVISION
                                DOYLE, P. J.,
                           COOMER and MARKLE, 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 25, 2020




In the Court of Appeals of Georgia
 A19A2208. OWENS v. THE STATE.

      MARKLE, Judge.

      Following a jury trial, Robert Willis Owens, Jr., was convicted of child

molestation; criminal attempt to commit felony child molestation; three counts of

enticing a child for indecent purposes; and four counts of interfering with custody of

a minor.1 He was sentenced as a recidivist under OCGA § 17-10-7 (a) and (c) to a

total of thirty years’ imprisonment. He now appeals from the denial of his motion for

new trial, arguing that the trial court erred in denying his motion for directed verdict

as to interference with custody of a minor, and by sentencing him as a recidivist.

After a thorough review of the record, we affirm the conviction for one of the

interference with custody counts, but reverse as to the other three counts, vacate the


      1
          He was acquitted of aggravated child molestation and aggravated sodomy.
sentences imposed for interfering with custody of a minor, child molestation, and

enticing a child for indecent purposes, and remand the case for resentencing.

       Viewing the evidence in the light most favorable to the jury’s verdict, Jackson

v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the record shows that,

in the fall of 2014, M. P. was a 15-year-old special education student at Osborne High

School. She lived with her grandmother, who was also her guardian. Owens was the

father of M. P.’s half-brother.

       On October 15, Owens picked M. P. up from school and took her to his house,

where she spent the night before Owens drove her back to school the next day. M.

P.’s grandmother never gave Owens permission to take M. P. from school or for M.

P. to spend the night at his home. While M. P. was with Owens, he performed oral sex

on her and the two watched pornography. Owens gave M. P. money and clothes,

along with a key to his house and a cell phone to enable him to communicate with

her.

       On October 30, M. P. and two friends, S. B. and M. I., left school at lunch time,

and Owens picked them up down the street from the school. They went to Owens’s

house and out to lunch before returning to school that same afternoon. Neither M. P.’s



                                           2
grandmother nor S. B.’s mother gave permission for the girls to leave school with

Owens.

      Based on these incidents, police obtained an arrest warrant for Owens, and he

was arrested in mid-November. He was released on bond, with the condition that he

have no contact with the juvenile victims.

      On November 21, after Owens was released on bond, police received a call that

M. P. had not gone to school that morning. They went to Owens’s home to

investigate. When asked if M. P. was there, Owens denied it, acknowledging that he

was not to have any contact with her, but the police ultimately found M. P. hiding in

Owens’s attic.

      At the close of the State’s case, Owens moved for a directed verdict on all

counts. As is relevant to this appeal, he argued that the interference with custody of

a minor counts could not stand because the girls were in school at the time and not

in their parents’ custody. In support, he cited Thompson v. State, 245 Ga. App. 396,

397 (1) (537 SE2d 807) (2000), in which this Court reversed a conviction for

interference with custody of a minor where the defendant picked up the victim while

she was skipping school. The State noted that, as to one count of interference with

custody of a minor, M. P. spent the night at Owens’s home, but it conceded that

                                          3
Thompson could apply to the other three counts. The trial court denied the motion for

directed verdict, finding that Thompson did not apply because parents have custody

of their children at all times.

       Following his convictions, Owens filed a motion seeking to avoid recidivist

sentencing because the prior convictions on which the State relied were too remote

in time and did not involve sexual offenses.2 At sentencing, the trial court reviewed

Owens’s prior convictions, which included a 1983 guilty plea to burglary, a 1987

guilty plea to aggravated assault, and a 1992 guilty plea to forgery, and found that

Owens qualified as a recidivist under OCGA § 17-10-7 (a) and (c). The trial court

sentenced Owens to 30 years to serve.3 In doing so, the trial court specifically noted

that Owens posed a danger to the community and had abused a vulnerable victim.

       Owens moved for a new trial, arguing, as is relevant to this appeal, that he was

entitled to a directed verdict on one count of interference with the custody of a minor,

       2
        Owens did not challenge the existence of his three prior convictions and
argued only that they should not serve as predicate offenses for the recidivist
sentencing provisions.
       3
       The sentence consisted of the following terms, to run concurrently: 20 years’
imprisonment for child molestation; 10 years’ imprisonment for criminal attempt to
commit felony child molestation; 30 years’ to serve for enticing a minor; and 12
months to serve for interference with the custody of a minor, which was a
misdemeanor.

                                           4
and that sentencing him as a recidivist was disproportionate and violated the 8th

Amendment prohibition on cruel and unusual punishment. The trial court denied the

motion for new trial, and Owens now appeals.

      1. In his first enumeration of error, Owens argues that the trial court erred in

denying his motion for a directed verdict on the interference with custody of a minor

counts because the children were not in the custody of their legal guardians when he

picked them up during school. We agree as to three of the four counts.

      Statutory interpretation is a question of law, which we review de novo, giving

no deference to the trial court’s ruling. State v. Hammonds, 325 Ga. App. 815 (755

SE2d 214) (2014). In interpreting the statute at issue,

      we are mindful of the applicable principles of statutory construction and
      look diligently for the intention of the General Assembly. In so doing,
      the ordinary signification shall be applied to all words. Where the
      language of a statute is plain and susceptible to only one natural and
      reasonable construction, courts must construe the statute accordingly.
      Criminal statutes are construed strictly against the State, they must be
      read according to the natural and obvious import of their language, and
      their operation should not be limited or extended by application of
      subtle and forced interpretations. Also, if a criminal statute is susceptible
      to more than one reasonable interpretation, the interpretation most
      favorable to the party facing criminal liability must be adopted.


                                           5
(Citations and punctuation omitted.) State v. Rich, 348 Ga. App. 467, 471 (823 SE2

563) (2019).

         Under OCGA § 16-5-45 (b) (1) (A), “[a] person commits the offense of

interference with custody when without lawful authority to do so, the person . . .

[k]nowingly or recklessly takes or entices any child . . . away from the individual who

has lawful custody of such child[.]” (emphasis supplied). As defined by statute,

“lawful custody” includes “that custody inherent in the natural parents, . . . or that

custody awarded to a parent, guardian, or other person by a court of competent

jurisdiction.” OCGA § 16-5-45 (a) (3).

         Under the plain language of the statute, the defendant must entice the child

away from an individual having custody. OCGA § 16-5-45 (b) (1) (A). Nothing in the

statutory language contemplates the removal of a child from a school during school

hours.

         In Thompson, we explained,

         [a]t the time [the child] went with [the defendant], she was not, and
         indeed was not supposed to be in her mother’s custody. And there is no
         evidence that the mother desired to exercise custody over [the child] at
         the time but, because of [defendant’s] actions, was unable to do so.


Thompson, 245 Ga. App. at 397 (1).

                                            6
      Notably, Thompson was decided in 2000. Since then, the legislature has not

amended the statute to clarify that removing a child from school during school hours

constitutes interference with custody. The legislature’s lack of action supports

adhering to the Thompson rationale in the instant case. See Schlomer v. State, 247 Ga.

App. 257, 259 (1) (543 SE2d 472) (2000) (“the General Assembly was aware of the

decisions . . . but did not amend the statute to alter those holdings.”); see also

Williams v. State, 299 Ga. 632, 634 (791 SE2d 55) (2016) (“[T]he legislature is

presumed to know the condition of the law and to enact statutes with reference to it.”)

(citation omitted).

      The State attempts to distinguish Thompson on the ground that the child in that

case was already skipping school when the defendant picked her up. But this is a

distinction without a difference here. The issue is not whether the defendant enticed

the children away from school or whether they left school of their own volition

because the school is not a lawful custodian under the terms of OCGA § 16-5-45 (b)

(1) (A). See Thompson, 245 Ga. App. at 397 (1).

      This interpretation of the statutory language is consistent with the plain

language of the statute and with the use of “legal custodian” elsewhere in the Georgia

Code. See OCGA § 15-11-2 (42) (A) (defining “legal custodian” as “a person to

                                          7
whom legal custody of a child has been given by order of a court[.]” (emphasis

supplied)).

      Applying this reasoning to the charges against Owens, we conclude that only

one of the counts of interference with custody of a minor established that Owens

interfered with M. P.’s grandmother exercising her right to lawful custody.

Specifically, with respect to the October 15 incident, Owens kept M. P. at his home

overnight without the grandmother’s permission.

      As to the other three counts, it is undisputed that, on October 30, M. P. and

S. B. left school in the middle of the day, the defendant picked them up, and the

defendant brought them back before the school day ended. It is also undisputed that,

on November 21, M. P. was at Owens’s home when she was supposed to be in school.

As neither M. P.’s grandmother nor S. B.’s mother would have had custody of the

girls at the time they were with Owens, the trial court should have granted the motion

for directed verdict as to these counts. Therefore, the convictions for interference with

custody of a minor on these counts must be reversed, and the case remanded for

resentencing without those three convictions.

      2. In two related enumerations, Owens contends that all of the sentences

imposed violate the 8th Amendment, and that the trial court abused its discretion

                                           8
when it failed to mitigate the sentences by imposing a split sentence that included a

term of probation. Although we disagree with his specific arguments, we conclude

that the trial court erred in imposing the sentences under OCGA §§ 16-5-45 (b) (2)

and 17-10-6.2.

      a. Interfering with custody of a minor

      Before turning to Owens’s arguments on appeal, we first consider the sentence

imposed for interfering with custody of a minor under OCGA § 16-5-45 (b) (2).

Given our conclusion in Division 1 that Owens can be convicted of only one count,

Owens must be resentenced for this offense. However, our review also shows that the

trial court erred in imposing sentence on the one remaining interference with custody

count, and we must correct this error so that it does not reoccur on remand.

      Interference with custody of a minor is a misdemeanor, and the first conviction

authorizes a sentence of one to five months’ imprisonment. See OCGA § 16-5-45 (b)

(2) (A). Thus, Owens’s sentence of 12 months’ imprisonment for this count is outside

the statutory maximum and is void. See Arnold v. State, 278 Ga. App. 188, 190 (3)

(628 SE2d 605) (2006) (trial court erred in sentencing defendant to 12 months on

each of the four counts of interference with custody where there was no evidence he

had any prior convictions for interference); see also Nazario v. State, 293 Ga. 480,

                                         9
485-486 (2) (b) (746 SE2d 109) (2013) (appeals court must vacate an illegal sentence

even if the error was not raised in the trial court or on appeal). Accordingly, on

remand, the trial court is directed to limit the sentence imposed on this count to no

more than five months’ imprisonment.

      b. Recidivist sentencing as cruel and unusual punishment

      Owens next argues that his recidivist sentences violate the 8th Amendment

prohibition on cruel and unusual punishment. We are not persuaded.

      OCGA § 17-10-7 (c) provides:

      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 imposed the maximum terms of imprisonment on each of the

counts of conviction, except with respect to the sentences for interference with

custody as addressed in Division 2 (a). See OCGA §§ 16-4-6 (maximum sentence of

10 years for attempt to commit felony child molestation); 16-6-4 (b) (1) (maximum




                                         10
sentence of no more than 20 years for child molestation); 16-6-5 (b) (maximum 30

years’ imprisonment for enticing a child for indecent purposes).

      We have rejected constitutional challenges to the recidivist sentencing scheme

in the past. Bray v. State, 330 Ga. App. 768, 774-775 (3) (768 SE2d 285) (2015). As

we explained,

      [a] punishment may be unconstitutionally cruel and unusual in the rare
      circumstance where the defendant’s sentence is grossly disproportionate
      to the underlying crime. . . . If the defendant’s sentence falls within the
      statutory range of punishment set by the legislature, a presumption arises
      that the sentence does not violate the Eighth Amendment, and the
      presumption remains until a defendant sets forth a factual predicate
      showing that such legislatively authorized punishment was so overly
      severe or excessive in proportion to the offense as to shock the
      conscience.


(Citations and punctuation omitted.) Id.

      Here, the sentences imposed on all of the remaining convictions fell within the

statutory limits, and we thus presume that the sentences do not violate the 8th

Amendment. Bray, 330 Ga. App. at 775 (3). Owens has offered nothing to overcome

that presumption.




                                           11
      Finally, to the extent that Owens argues that his prior convictions were too

remote to qualify as predicate offenses under OCGA § 17-10-7 (c), the statute does

not limit the use of prior convictions in this manner. See Prince v. State, 299 Ga. 888,

891 n.6 (793 SE2d 38) (2016). Accordingly, we cannot say that the trial court abused

its discretion in declining to mitigate Owens’s sentences.

      c. Split sentence under OCGA § 17-10-7

      Owens also argues that the trial court should have included a split sentence of

incarceration followed by probation and used its discretion to impose a sentence of

probation. We disagree.

      Under OCGA § 17-10-7 (a),

      any person who, after having been convicted of a felony offense in this
      state . . . commits a felony punishable by confinement in a penal
      institution shall be sentenced to undergo the longest period of time
      prescribed for the punishment of the subsequent offense of which he or
      she stands convicted, provided that, unless otherwise provided by law,
      the trial judge may, in his or her discretion, probate or suspend the
      maximum sentence prescribed for the offense.


(emphasis supplied).

      To the extent that Owens challenges the trial court’s decision not to impose a

term of probation under OCGA § 17-10-7 (a), there is no evidence that the trial court

                                          12
abused its discretion. See Paige v. State, 277 Ga. App. 687, 688-689 (2) (627 SE2d

370) (2006) (“Unless affirmative evidence shows otherwise, the trial court is

presumed to have exercised its discretion in imposing sentence.”) (citation and

punctuation omitted). Rather, the trial court stated that it imposed the lengthy

sentences because Owens took advantage of a vulnerable victim and was a danger to

society. As such, Owens’s argument that he should have received a probated sentence

is without merit.

      d. Split sentence under OCGA § 17-10-6.2 (2013)

      Although Owens does not argue that the trial court was required to impose a

split sentence for the some of the sexual offenses under OCGA § 17-10-6.2 (b), we

may consider this issue sua sponte because, if the trial court erred in this respect, the

sentence imposed would be void. See Nazario, 293 Ga. at 485-486 (2) (b); Hood v.

State, 343 Ga. App. 230, 234 (1) (807 SE2d 10) (2017) (“A sentence that does not

comply with the OCGA § 17-10-6.2 split-sentence requirement is void. We are

required to correct a void sentence. A sentence which is not allowed by law is void,

and its illegality may not be waived.”) (citation and punctuation omitted).

      Under OCGA § 17-10-6.2 (b) (2013),



                                           13
      notwithstanding any other provisions of law to the contrary, any person
      convicted of a sexual offense shall be sentenced to a split sentence
      which shall include the minimum term of imprisonment specified in the
      Code section applicable to the offense. No portion of the mandatory
      minimum sentence imposed shall be suspended, stayed, probated,
      deferred, or withheld by the sentencing court and such sentence shall
      include, in addition to the mandatory imprisonment, an additional
      probated sentence of at least one year.


      Here, Owens was convicted of child molestation and enticing a child for

indecent purposes, both of which require the trial court impose to a split sentence that

includes at least one year of probation. OCGA § 17-10-6.2 (a) (5), (6); see also

OCGA §§ 16-6-4 (b) (1); 16-6-5 (b). But the trial court did not impose a split

sentence on either of these offenses. We thus are required to vacate the sentences

imposed for these convictions and remand this case to the trial court for resentencing

that complies with OCGA § 17-10-6.2 (b). See Conwell v. State, 344 Ga. App. 67, 68

(2) (808 SE2d 434) (2017) (sentencing defendant to a split sentence as a recidivist);

see also Watkins v. State, 336 Ga. App. 145, 151-153 (5) (748 SE2d 11) (2016) (even

where defendant is sentenced as a recidivist under OCGA § 17-10-7, the trial court

is required to impose a split sentence under OCGA § 17-10-6.2 for applicable

offenses).

                                          14
      In summary, we conclude that the trial court properly denied the motion for

new trial as to one count of interference with custody of a minor, but that the

convictions on the remaining three counts of interference with custody of a minor

must be reversed. We further conclude that the trial court erred in sentencing Owens

in excess of the statutory maximum on the remaining interference with custody count,

and in failing to impose a split sentence on the child molestation and enticing a minor

counts. We therefore vacate in part the sentences imposed and remand for

resentencing consistent with this opinion.

      Judgment affirmed in part; reversed in part; sentence vacated in part; and case

remanded with direction. Doyle, P. J., and Coomer, J., concur.




                                          15
