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                               http://www.gaappeals.us/rules


                                                                 November 18, 2016




In the Court of Appeals of Georgia
 A16A1357. THE STATE v. T. M. H.                                             DO-046 C

      DOYLE, Chief Judge.

      After T. M. H., a juvenile, entered into a negotiated guilty plea to armed

robbery with a firearm, aggravated assault, and obstruction of a law enforcement

officer, he was sentenced by the superior court to ten years with five to serve on the

armed robbery count,1 five years to serve on the aggravated assault count, and twelve




      1
        The mandatory minimum sentence for armed robbery is ten years in prison.
OCGA §§ 16-8-41 (b), 17-10-6.1 (b) (1). However, the State consented to a
downward modification from the mandatory minimum. See OCGA § 17-10-6.1 (e)
(“In the court’s discretion, the judge may depart from the mandatory minimum
sentence specified in this Code section for a person who is convicted of a serious
violent felony when the prosecuting attorney and the defendant have agreed to a
sentence that is below such mandatory minimum.”).
months to serve on the obstruction of a law enforcement count.2 Each of these

sentences was to be served concurrently. Later, as T. M. H.’s seventeenth birthday

approached, the superior court held a status conference pursuant to OCGA § 49-4A-9

(e) to reevaluate his sentence. As a result of that status conference, the superior court

entered orders probating the balance of T. M. H.’s sentence. The State now appeals,

and we affirm.

      T. M. H. was prosecuted as an adult in the superior court, and he was 16 years

old at the time of his negotiated plea. The superior court sentenced T. M. H. to

“confinement in such institution as the Commissioner of the State Department of

Corrections may direct[.]”3 Because T. M. H. was sixteen years old at the time of his

sentencing, he was committed by the Department of Corrections (“DOC”) into the

custody of the Department of Juvenile Justice (“DJJ”) and housed in a juvenile

detention facility.

       A few weeks before his seventeenth birthday, the superior court held a status

conference at the DJJ’s request to review T. M. H.’s commitment order. The superior

      2
        T. M. H. also pleaded guilty to possession of a firearm during the commission
of a felony. The superior court sentenced T. M. H. to five years to serve on that
conviction, but suspended that sentence with conditions.
      3
          See OCGA § 17-10-14 (a).

                                           2
court’s order reflects that it heard testimony at the status conference “as to [T. M.

H.’s] respectful behavior at the Youth Development Campus . . . , his good grades,

and his record of no rule violations.”4 The superior court also heard argument from

the State that, upon his seventeenth birthday, T. M. H. must be transferred back into

the custody of the DOC to serve the remaining portion of his sentence and that the

superior court lacked discretion to modify his armed robbery sentence. Conversely,

T. M. H. argued that the superior court retained the discretion to allow him to serve

the remainder of his sentence on probation pursuant to OCGA § 49-4A-9 (e). Citing

to that Code section, the superior court agreed, and entered an order allowing him to

serve the remainder of his sentence on probation.

      The State argues that the superior court was not authorized to probate the

remainder of T. M. H.’s sentence. We disagree.

      We note at the outset that, as the parties point out, there is little if any case law

interpreting precisely how the applicable statutes govern this scenario. Even so, as in

any case, our analysis begins with

      [t]he cardinal rule of statutory construction[, which] is to seek the intent
      of the Legislature[. In so doing,] language in one part of a statute must


      4
          The appellate record does not contain a transcript of the status conference.

                                            3
      be construed in the light of the legislative intent as found in the statute
      as a whole. . . [, and] we must first focus on the statute’s text. In order
      to discern the meaning of the words of a statute, we must look at the
      context in which the statute was written, remembering at all times that
      the meaning of a sentence may be more than that of the separate words.
      In addition, [when] interpreting a statute, we must presume that the
      General Assembly had full knowledge of the existing state of the law
      and enacted the statute with reference to it. We construe statutes in
      connection and in harmony with the existing law, and as a part of a
      general and uniform system of jurisprudence, and their meaning and
      effect is to be determined in connection, not only with the common law
      and the constitution, but also with reference to other statutes and
      decisions of the courts.5


Also, when “interpreting criminal statutes, it is axiomatic that any ambiguities must

be construed most favorably to the defendant. . . [And f]or purposes of statutory

interpretation, a specific statute will prevail over a general statute, absent any

indication of a contrary legislative intent.”6

      Turning to the issue before us, the governing Code sections are OCGA §§ 17-

10-14 and 49-4A-9. OCGA § 17-10-14 provides:

      5
      (Citations and punctuation omitted.) Fair v. State, 288 Ga. 244, 252 (2) (702
SE2d 420) (2010).
      6
      (Citations and punctuation omitted.) Goldberg v. State, 282 Ga. 542, 544 (651
SE2d 667) (2007).

                                           4
              (a) Notwithstanding any other provisions of this article and except
      as otherwise provided in subsection (b) of this Code section, in any case
      where a person under the age of 17 years is convicted of a felony and
      sentenced as an adult to life imprisonment or to a certain term of
      imprisonment, such person shall be committed to the Department of
      Juvenile Justice to serve such sentence in a detention center of such
      department until such person is 17 years of age at which time such
      person shall be transferred to the Department of Corrections to serve
      the remainder of the sentence. This Code section shall apply to any
      person convicted on or after July 1, 1987, and to any person convicted
      prior to such date who has not been committed to an institution operated
      by the Department of Corrections.


              (b) If a child is transferred to superior court pursuant to Code
      Section 15-11-5617 and convicted of aggravated assault as defined in
      Chapter 5 of Title 16, the court may sentence such child to the
      Department of Corrections. Such child shall be housed in a designated
      youth confinement unit until such person is 17 years of age, at which
      time such person may be housed in any other unit designated by the
      Department of Corrections.8


Thus, this Code section serves as the default instruction on how to house certain child

offenders under the age of 17.

      7
        OCGA § 15-11-561 governs transfers from juvenile court to superior court
of certain children between the ages of 13 to 15 accused of serious offenses.
      8
          (Emphasis supplied.)

                                           5
Also applicable to this case is OCGA § 49-4A-9, which provides as follows:

      (a) Any child who has previously been adjudged to have
committed an act which is a felony if tried in a superior court and who,
on a second or subsequent occasion, is convicted of a felony in a
superior court may, in the discretion of the court, be sentenced into the
custody of the department as otherwise provided by law or be committed
as a youthful offender as authorized in Chapter 7 of Title 42; provided,
further, that any child convicted of a felony punishable by death or by
confinement for life shall only be sentenced into the custody of the
Department of Corrections.


      (b) Any final order of judgment by the court in the case of any
such child shall be subject to such modification from time to time as the
court may consider to be for the welfare of such child. No commitment
of any child to any institution or other custodial agency shall deprive the
court of jurisdiction to change the form of the commitment or transfer
the custody of the child to some other institution or agency on such
conditions as the court may see fit to impose, the duty being constant
upon the court to give to all children subject to its jurisdiction such
oversight and control in the premises as will be conducive to the welfare
of the child and the best interests of the state; provided, however, that
the release of any child committed to the department for detention in any
of its institutions under the terms of this chapter during the period of one
year from the date of commitment shall be had only with the
concurrence and recommendation of the commissioner or the
commissioner’s designated representative; provided, further, that upon
releasing any child adjudicated for committing a delinquent act for the

                                     6
commission of a class A designated felony act or class B designated
felony act as defined in Code Section 15-11-2 and committed to the
department for detention in any of its institutions under the terms of this
chapter, the department shall provide notice to any person who was the
victim of the child’s delinquent acts that the child is being released. So
long as a good faith attempt to comply with the notice requirement of
this subsection has been made, the department and employees of the
department shall not be liable for damages incurred by reason of the
department’s failure to provide the notice required by this subsection.


      (c) After the expiration of one year from the date of commitment,
the committing court shall review the case and make such order with
respect to the continued confinement or release of the child back to the
committing court for further disposition as the court deems proper.


      (d) In the event adequate facilities are not available, the
department shall have the right to transfer youths committed to the
department under this Code section to the Department of Corrections for
incarceration in an appropriate facility designated by the Department of
Corrections.


      (e) Any child under 17 years of age who is sentenced in the
superior court and committed to the department may be eligible to
participate in all juvenile detention facility programs and services
including community work programs, sheltered workshops, special state
sponsored programs for evaluation and services under the Georgia
Vocational Rehabilitation Agency and the Department of Behavioral

                                    7
      Health and Developmental Disabilities, and under the general
      supervision of juvenile detention facility staff at special planned
      activities outside of the juvenile detention facility. When such a child
      sentenced in the superior court is approaching his or her seventeenth
      birthday, the department shall notify the court that a further disposition
      of the child is necessary. The department shall provide the court with
      information concerning the participation and progress of the child in
      programs described in this subsection. The court shall review the case
      and determine if the child, upon becoming 17 years of age, should be
      placed on probation, have his or her sentence reduced, be transferred
      to the Department of Corrections for the remainder of the original
      sentence, or be subject to any other determination authorized by law.9


      Here, T. M. H. was sentenced to the DOC, but because he was under 17, he was

committed by the DOC to the DJJ for confinement.10 As T. M. H.’s seventeenth

birthday approached, the superior court held a hearing and exercised its discretion to

modify his sentence pursuant to OCGA § 49-4A-9 (e). By its plain language, that

subsection applies to “[a]ny child under 17 years of age who is sentenced in the

superior court and committed to the department,” and the statutory text reveals no

reason why T. M. H. fails to meet this definition. He was sentenced in the superior



      9
          (Emphasis supplied.)
      10
           See OCGA § 17-10-14 (a).

                                          8
court and committed to the DJJ for custody. Thus, the language in OCGA § 49-4A-9

(e) contains no basis to exclude T. M. H. from the process described therein.

      Nevertheless, the State argues that, in this case, the superior court’s authority

under subsection (e) does not reach T. M. H.’s sentence in this case because (1)

language in OCGA § 17-10-14 (a) – “until such person is 17 years of age at which

time such person shall be transferred to the Department of Corrections to serve the

remainder of the sentence” – is mandatory and precludes any other outcome for these

offenders, and (2) OCGA § 49-4A-9 (a) provides that “any child convicted of a felony

punishable by death or by confinement for life shall only be sentenced into the

custody of the Department of Corrections.”

      Looking first at OCGA § 17-10-14 (a), nothing in that Code section addresses

or limits the superior court’s basic sentencing authority with respect to juveniles. By

its plain terms, it merely addresses where the child must be committed and states that

a child shall be transferred at age 17 to the DOC to serve the remainder of the

sentence, without any further language addressing what the sentence might be. It does

not say “remainder of the original sentence” or otherwise include a limitation on the

express authority given to a superior court under OCGA § 49-4A-9 (e). Thus, at most,

OCGA § 17-10-14 (a) is ambiguous as to any limitation on the superior court’s

                                          9
sentencing authority under OCGA § 49-4A-9 (e), and as stated above, any ambiguity

in a criminal statute must be resolved in favor of the defendant.11

      With respect to OCGA § 49-4A-9 (a), we reach a similar conclusion. That

subsection designates the DOC as the only custodian of serious child offenders, but

it does not, by its express terms, limit the operation of subsection (e), nor was T. M.

H.’s treatment here inconsistent with the requirement that he be sentenced to the

custody of the DOC. T. M. H. was sentenced into the custody of the DOC (with

DOC’s discretion as to how to house him), but because he was under 17, he was

committed to the DJJ as provided by OCGA § 17-10-14 (a). Further, because he was

“sentenced in the superior court and committed to the department,” the superior court

had authority under OCGA § 49-4A-9 (e) to “determine if . . . , upon becoming 17

years of age, [T. M. H.] should be placed on probation . . . .” This is entirely

consistent with the overall statutory scheme as currently written.

      Further, preserving discretion over juveniles’ sentences is in harmony with the

statutory mandate in OCGA § 49-4A-9 (b) that

      [n]o commitment of any child to any institution or other custodial
      agency shall deprive the court of jurisdiction to change the form of the


      11
           See Goldberg, 282 Ga. at 544.

                                           10
      commitment or transfer the custody of the child to some other institution
      or agency on such conditions as the court may see fit to impose, the duty
      being constant upon the court to give to all children subject to its
      jurisdiction such oversight and control in the premises as will be
      conducive to the welfare of the child and the best interests of the state
      . . . .12


This is part of a unified statutory scheme enacted by the legislature specifically to

address juvenile offenders.13 As required by the rules of statutory construction, we

credit this specific scheme over the general sentencing provisions in Chapter 10 of

Title 17 in which OCGA § 17-10-14 (a) appears.14

      Finally, this interpretation comports with the recent whole-court case of Ga.

Dept. of Juvenile Justice v. Eller,15 in which this Court addressed a slightly different


      12
         Subsection (b) also contains notice provisions applicable to the release of
certain child offenders, which notice is not at issue here.
      13
        For this reason, I am unpersuaded by the State’s argument that the general
sentencing limitation in OCGA § 17-10-6.1 (e) on downward departures from the
mandatory minimum requires reversal in this case.
      14
        See Goldberg, 282 Ga. at 544. OCGA § 17-10-14 appears in Article 1,
alongside general sentencing provisions for, among other things, split sentencing
(OCGA § 17-10-1.4), general misdemeanor punishments (OCGA § 17-10-3),
sentence review panels (OCGA § 17-10-6), and collection of fines and restitution
(OCGA § 17-10-20).
      15
           338 Ga. App. 247 (789 SE2d 412) (2016).

                                          11
question: whether OCGA § 49-4A-9 (e) authorized the superior court to require the

DJJ to retain custody of Eller, who pleaded guilty to child molestation and burglary,

past his seventeenth birthday instead of transferring him to DOC. We answered in the

negative based on OCGA § 17-10-14 (a), which “explicitly and unequivocally

provides that, upon turning 17 years old, a juvenile in DJJ custody who was sentenced

in superior court as an adult ‘shall be transferred to the Department of Corrections to

serve the remainder of the sentence.’”16 Even so, this Court recognized that the

superior court was authorized to “place him on probation, reduce his sentence, allow

his transfer to the Department of Corrections, or fashion any other determination

authorized by law.”17 That is precisely what happened to T. M. H. in this case.

      In light of the express authority provided in OCGA § 49-4A-9 (e) to review T.

M. H.’s sentence before he turned 17, the superior court was authorized to place T.

M. H. on probation based on the court’s finding of T. M. H.’s rehabilitation, which

finding was supported by the record. Accordingly, we discern no legal error requiring

reversal, and we affirm the judgment of the superior court.




      16
           Id. at 249.
      17
           (Punctuation and emphasis omitted.) Id. at 249.

                                          12
      Judgment affirmed. Miller, P. J., McFadden, McMillian and Rickman, JJ.,

concur. Barnes, P. J., concurs in judgment only. Andrews, P. J., Boggs and Ray, JJ.,

dissent.




                                        13
 A16A1357. THE STATE v. T.M.H.



      RAY, Judge, dissenting.

      I respectfully dissent from the majority’s conclusion that OCGA § 49-4A-9 (e)

applies to a juvenile that is sentenced to the Department of Corrections (the “DOC”),

but is thereafter “committed” by the DOC to the Department of Juvenile Justice (the

“DJJ”) until his seventeenth birthday. I believe that OCGA § 17-10-14 (a) is the

controlling statute in the instant case and that the DJJ was bound to transfer T.M.H.

back to the DOC upon his seventeenth birthday. Accordingly, I contend that the trial

court’s orders probating and releasing T.M.H. was without authority and should be

reversed.
      The cardinal rule of statutory interpretation is to ascertain the legislature’s

purpose in enacting a statute and then construe the statute in light of the intent as

found in the statute as a whole. Goldberg v. State, 282 Ga. 542, 544 (561 SE2d 667)

(2007). This Court reviews the trial court’s interpretation of a statute de novo. Hobbs

v. State, 334 Ga. App. 241, 245 (3) (779 SE2d 15) (2015).

      The superior court has “exclusive original jurisdiction over the trial of any

child 13 to 17 years of age who is alleged to have committed” one of several

enumerated violent crimes, including “[a]rmed robbery if committed with a firearm.”

OCGA § 15-11-560 (b) (8). In the instant case, although T.M.H. was sentenced by the

superior court as an adult into the custody of the DOC, he was placed by the DOC

with the DJJ until his seventeenth birthday as required by OCGA § 17-10-14 (a),

which governs the sentencing of juveniles as adults by a superior court. OCGA § 17-

10-14 (a) provides:

       [When] a person under the age of 17 years is convicted of a felony and
      sentenced as an adult to life imprisonment or to a certain term of
      imprisonment, such person shall be committed to the Department of
      Juvenile Justice to serve such sentence . . . until such person is 17 years
      of age at which time such person shall be transferred to the Department
      of Corrections to serve the remainder of the sentence.



                                          2
(Emphasis supplied.) OCGA § 17-10-14 (a).1

      Notwithstanding the foregoing statutory mandate, the trial court found that it

was authorized to probate the balance of T.M.H.’s sentence upon his seventeenth

birthday pursuant to OCGA § 49-4A-9 (e). This statute governs the sentencing and

sentence review of juveniles who, unlike T.M.H., were sentenced directly into the

custody of the DJJ. OCGA § 49-4A-9 (e) provides, in pertinent part, that:

      Any child under 17 years of age who is sentenced in the superior court
      and committed to the [D]epartment [of Juvenile Justice] may be eligible
      to participate in all juvenile detention facility programs and services . .
      . . When such a child sentenced in the superior court is approaching his
      or her seventeenth birthday, the [D]epartment [of Juvenile Justice] shall
      provide the court with information concerning the participation and
      progress of the child in [such] programs. The court shall review the case
      and determine if the child, upon becoming 17 years of age, should be
      placed on probation, have his or her sentence reduced, be transferred to
      the Department of Corrections for the remainder of the original
      sentence, or be subject to any other determination authorized by law.


(Emphasis supplied.) OCGA § 49-4A-9 (e). While I recognize that at first glance it

might seem that this provision gave the trial court the ability to modify T.M.H.’s


      1
        See also OCGA § 15-11-34 (“Except as otherwise provided in [OCGA §] 17-
10-14, a child shall not be committed to an adult correctional facility or other facility
used primarily for the execution of sentences of persons convicted of a crime”).

                                           3
sentence, I do not find that such authority existed under OCGA § 49-4A-9 (e) because

OCGA § 49-4A-9 applies only to those juveniles sentenced by the trial court in the

exercise of its discretion into the custody of the DJJ. See OCGA § 49-4A-9(a).

Although T.M.H. served a portion of his sentence in the custody of the DJJ pursuant

to OCGA § 17-10-14 (a), he was sentenced by the superior court directly to the DOC.

Thus, I find that OCGA § 17-10-14 (a) is the controlling statute in this case.2

      This Court’s recent decision in Ga. Dept. of Juvenile Justice v. Eller, __ Ga.

App. __ (789 SE2d 412) (2016), does not require a different result. In Eller, the DJJ

appealed from a superior court order sentencing Eller, a juvenile, directly into the

custody of the DJJ until he turned 21 years old. Id. at *1. The Eller Court found that

although the superior court was authorized to re-evaluate Eller’s sentence upon his

seventeenth birthday under OCGA § 49-4A-9 (e), it was not authorized to require the

DJJ to keep Eller beyond his seventeenth birthday. Id. at *2-3. Eller is distinguishable

from the instant case because Eller, unlike T.M.H., was sentenced by the trial court


      2
         See Ga. Op. Atty. Gen. No. U96-5 (February 19, 1996). Further, I disagree
with the majority because it’s holding would essentially render meaningless the trial
court’s discretion in the first instance whether to sentence a defendant directly to the
DJJ; any defendant under age seventeen sentenced to the DOC would go to the DJJ
anyway pursuant to OCGA § 17-10-14(a) and, under the majoirty’s interpretation,
still have the benefit of a reconsideration of his or her sentence under OCGA § 49-
4A-9(e).

                                           4
directly into the custody of the DJJ. Additionally, I question the language in Eller to

the extent that it implies that a defendant who is not directly sentenced to the DJJ, but

who instead is sentenced into the custody of the DOC and is transferred to the DJJ

until his seventeenth birthday pursuant to OCGA § 17-10-14(a), can have his

sentence reviewed and reduced under OCGA § 49-4A-9(e).

       For the foregoing reasons, I would hold that the trial court lacked jurisdiction

to probate the balance of T.M.H.’s sentence and to order his release. “When a trial

court enters a judgment where it does not have jurisdiction, such judgment is a mere

nullity; but an appeal from such an illegal judgment will not be dismissed but instead,

the void judgment will be reversed.” (Citation and punctuation omitted.) Bush v.

State, 273 Ga. 861, 861 (548 SE2d 302) (2001). See e. g., State v. James, 211 Ga.

App. 149, 150 (2) (438 SE2d 399) (1993) (as trial court lacked jurisdiction to grant

a motion to reconsider a defendant’s guilty please, its judgment doing so was an

nullity).

       I am authorized to state that Andrews, P. J. and Boggs, J. join in this dissent.




                                           5
