                             THIRD DIVISION
                            ELLINGTON, P. J.,
                        ANDREWS and RICKMAN, 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


                                                                    October 4, 2017




In the Court of Appeals of Georgia
 A17A2012. MITCHELL v. THE STATE.

      ELLINGTON, Presiding Judge.

      Derrick Mitchell entered a non-negotiated guilty plea to one count of family

violence battery, OCGA § 16-5-23.1 (f) (2), in the Superior Court of Coweta County.

Because Mitchell had a prior conviction for family violence battery, the court

imposed a felony sentence of five years, two to serve in prison and the balance on

probation. Mitchell appeals his sentence, contending that the court should have

applied the rule of lenity and sentenced him for a misdemeanor.

      The record shows that, at about 3:00 a.m. on October 20, 2015, Mitchell went

to his former girlfriend’s apartment because he thought that another man was living

with her. When he arrived, he argued with the victim and loudly berated her. The

argument ended with Mitchell punching the victim in the mouth several times. The
victim called the police, and the responding officer found the victim holding an ice

pack to her swollen and bruised mouth. The officer then spoke to Mitchell, who was

nervous and agitated. He admitted to the officer that he was upset with the victim and

that he had argued with her; however, he denied having hit her.

      During the plea hearing, the prosecutor tendered, without objection, a certified

copy of Mitchell’s previous family violence battery conviction against the same

victim. The exhibit shows that Mitchell entered his plea to misdemeanor family

violence battery on May 16, 2016, for an incident that occurred during the previous

year, on May 12, 2015. Mitchell committed the instant crime on October 20, 2015 –

after the first offense had occurred but prior to the date he was sentenced for the first

offense. Mitchell was indicted for the October 2015 incident on November 2, 2016;

and he entered his guilty plea to that offense on January 26, 2017. Because Mitchell

had a prior conviction for family violence battery, the trial court imposed a felony

conviction pursuant to OCGA § 16-5-23.1 (f) (2) (B). That Code section provides

that, “[u]pon a second or subsequent conviction of family violence battery against the

same or another victim, the defendant shall be guilty of a felony and shall be punished

by imprisonment for not less than one nor more than five years.” Id.



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      Mitchell argues that, under the circumstances of this case, OCGA §

16-5-23.1(f) (2) (B) does not require the court to impose a felony sentence. He

contends that, when a second offense of family violence battery is committed prior

to the entry of a judgment of conviction for the first offense of family violence

battery, the statute’s sentencing requirements are ambiguous and therefore requires

the application of the rule of lenity. And, applying the rule of lenity, Mitchell

contends that the court should have imposed a misdemeanor sentence. We disagree.

      “As in all appeals involving the construction of statutes, our review is

conducted under a de novo standard.” (Citation omitted.) Hankla v. Postell, 293 Ga.

692, 693 (749 SE2d 726) (2013). Pursuant to the rules of statutory construction, 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.


(Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a)

(751 SE2d 337) (2013). “Applying these principles, if the statutory text is ‘clear and




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unambiguous,’ we attribute to the statute its plain meaning, and our search for

statutory meaning is at an end.” Id. at 173.

      By its plain language, OCGA § 16-5-23.1 (f) (2) (B) provides that upon a

second or subsequent conviction – not act, crime, or offense – the defendant shall be

guilty of felony. It does not matter when the offenses occurred. All that matters for

purposes of this sentencing provision is that the defendant have a prior conviction for

family violence battery. There is no ambiguity and hence nothing to construe.

Because OCGA § 16-5-23.1 (f) (2) (B) is unambiguous, the rule of lenity does not

apply. Hudson v. State, 334 Ga. App. 166, 168 (2) n. 3 (778 SE2d 406) (2015). (“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.”) (citations

omitted). Consequently, this claim of error is without merit.

      Judgment affirmed. Andrews and Rickman, JJ., concur.




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