...exception not applicable here, “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.” OCGA § 16-6-4 (b) (1). 2 touching her buttocks, and Count 4 on his touching her vagina....

...imprisonment for life without parole.” The legislature has defined the following as serious violent felonies: murder or felony murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, and aggravated sexual battery. See OCGA § 17-10-6.1 (a)....

...awarding or refusing to change child custody or holding or declining to hold persons in contempt of such child custody judgment or orders”); Ga. L. 2006, p. 382, § 2 (adding now-paragraph (a) (10): “All judgments or orders entered pursuant to subsection (c) of Code Section 17-10-6.2”). 22 By contrast, the U.S....

...and regulations prescribed by the court, even before the probationary period has begun, subject to the conditions set out in this subsection; provided, however, that such action shall be subject to the provisions of Code Sections 17-10-6.1 and 17-10-6.2. 3 Langley, 358 Ga....

...that contain language expressly prohibiting probation. OCGA § 17- 10-1 (a) (1) (A) excludes “cases in which life imprisonment, life without parole, or the death penalty may be imposed” and also makes the power to probate sentences “subject to the provisions of Code Sections 17-10-6.1 and 17-10-6.2[,]” which limit the availability of probation for serious violent felonies and sexual offenses....

...And because the legislation is presumptively valid, the claimant has the burden of proof as to both prongs. victim, such person shall be guilty of a misdemeanor and shall not be subject to the sentencing and punishment provisions of Code Section 17-10-6.2. ... 6 (Citations and punctuation omitted.) Harper v....

...interested in pleading guilty to life with the possibility of parole, because Dresbach found spending a minimum of 30 years in jail simply “unacceptable.” See Ellison v. State, 299 Ga. 779, 781 n.1 (792 SE2d 387) (2016) (explaining that under OCGA § 17-10-6.1 (c) (1), a defendant sentenced to life for murder is required to serve at least 30 years before becoming eligible for parole)....

...sufficient notice that such a sentence was possible. He also argues that he was “entitled to rely upon the finality” of the initial sentencing. A sentence of life without parole was the sentence mandated by statute in this case. See OCGA § 17-10-7 (b) (2); see also OCGA § 17-10-6.1 (a) (2) (defining “serious violent felony” as including armed robbery)....

...Hood on numerous times because he kept saying he was 49 and he was going to be 79 when he got out and his parents would be deceased. And this was a very big deal to him considering the 30-year mark and that’s why I know that I went over the 30 years with him. 1 OCGA § 17-10-6.1 (c) (1) provides: Except as otherwise provided in subsection (c) of Code Section 42-9-39, for a first conviction of a serious violent felony in which the accused has been sentenced to life imprisonment, that pe...

...475-3-.05 (10). Of course, murder is punishable by “death, . . . imprisonment for life without parole, or . . . imprisonment for life,” OCGA § 16-5-1 (e) (1), and requires that a defendant serve a minimum of 30 years before parole eligibility. See OCGA §§ 17-10-6.1 (c); 42-9-39 (c). 24 Applying this legal standard, as our case law requires, does not 58 State, 303 Ga....

...a legitimate interest in crafting misdemeanor exceptions which ensure that “youthful defendants who engage in acts of sodomy will not be subject to the law’s harshest consequences.” Dissent, p. 634 (c). See also OCGA §§ 16-6-4 (b), (d); 17-10-6.1; 17-10-6.2....

...In any event, there is a rational basis for the difference in treatment. Unless the misdemeanor sentencing exception applies, 50 persons convicted of child molestation are subject to the sentencing and punishment provisions of OCGA § 17-10-6.2, see OCGA § 16-6- 4 (b) (1), while persons convicted of aggravated child molestation are subject to the provisions of OCGA § 17-10-6.1, see OCGA § 16-6-4 (d) (1). Under OCGA § 17-10-6.2 (b), a person convicted of child molestation, a “sexual offense,” must be sentenced to a “split sentence” which includes the “minimum term of imprisonment” — that is, five years — specified by OCGA § 16-6-4 (b) (1). While OCGA § 17-10-6.2 (b) prohibits a trial court from suspending, staying, probating, deferring, or withholding the mandatory minimum sentence, subsection (c) of the same statute grants the trial court discretion to deviate from that mandatory minimum....

...e agreed to a sentence that is below such mandatory minimum” or where the trial court finds that other circumstances identified in the statute are present, even absent consent of the parties. OCGA § 17- 10-6.2 (c) (1). By contrast, under OCGA § 17-10-6.1 (b) (2), a person convicted of aggravated child molestation, a “serious violent felony,” 51 must, unless sentenced to serve life in prison, be sentenced to “a split sentence which shall include...

...tion for life.” A trial court’s discretion to deviate from that mandatory minimum is limited only to circumstances in which “the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum.” OCGA § 17-10-6.1 (e). These statutes reflect that the default sentence for a conviction of aggravated child molestation is much harsher than that for child molestation and that, in cases of aggravated child molestation, a trial court’s discretion to fashion a more lenient sentence is greatly circumscribed and may be implemented only with the government’s consent. In light of the significant punishment imposed in cases of aggravated child molestation where sentencing is governed by OCGA § 17-10-6.1, as well as the trial court’s circumscribed discretion to reduce such sentences, the legislature had a legitimate interest in crafting a scheme that helps ensure that youthful defendants who engage in acts of sodomy will not be subj...

...consequences of irresponsible sexual conduct and are readily subject 15 The legislature has followed the same approach with other sexual offenses. See, e.g., OCGA § 16-6-3 (b), (c) (person convicted of statutory rape is subject to provisions of OCGA § 17-10-6.2, but misdemeanor sentencing provision applies where victim was at least 14 but less than 16 years old); OCGA § 16-6-5 (b), (c) (person convicted of enticing a child for indecent purposes is subject to provisions of OCGA § 17-10-6.2, but misdemeanor sentencing provision applies where victim was at least 14 but less than 16 years old); OCGA § 16-6-5.1 (g) (2) (person convicted of second-degree improper contact by employee or agent, person in position of trust, or foster parent is subject to provisions of OCGA § 17-10-6.2, but misdemeanor sentencing provision applies where victim was at least 14 but less than 21 years old); OCGA § 16-12-100 (f) (person convicted of sexual exploitation of a child is subject to provisions of OCGA § 17-10-6.2, but misdemeanor sentencing provision applies to specified conduct where victim was at least 14 years old). 53 to peer pressure”)....

...or her discretion, probate or suspend the maximum sentence prescribed for the offense. (b) (1) As used in this subsection, the term “serious violent felony” means a serious violent felony as defined in subsection (a) of Code Section 17-10-6.1 [which defines “serious violent felony” to include murder and armed robbery]. (2) Except as provided in subsection (e) of Code Section 17-10-6.1 [which allows the judge to depart from the mandatory minimum sentence when the prosecuting attorney and the defendant have agreed on a sentence], any person who has been convicted of a serious violent felony in t...

...Following a hearing, the habeas 1 See OCGA § 16-8-41 (b) (“A person convicted of the offense of armed robbery shall be punished by . . . imprisonment for life or by imprisonment for not less than ten nor more than 20 years.”). See also OCGA § 17-10-6.1 (c) (1) (“[F]or a first conviction of a serious violent felony [including armed robbery] in which the accused has been sentenced to life imprisonment, that person shall not be eligible for any form of parole or early release ....

...To show prejudice, a defendant must “demonstrate the reasonable probability that, absent the claimed professional errors by counsel, the result of his trial would have been different.” Roberts v. State, 296 Ga. 719, 724 (2) (770 SE2d 589) (2015). 3 See OCGA § 17-10-6.1 (b) (1), (c) (4) (a person convicted of armed robbery “shall be sentenced to a mandatory minimum term of imprisonment of ten years,” and this sentence “shall not be reduced by any form of parole or early release”). 4 We ex...

...On the evening of September 13, 2019, Appellant, Johnson, Stanek, and a few mutual friends were together when it was suggested that Appellant and Johnson leave the residence to “talk thi[ngs] out” because “there was a great deal of tension between [them] over . . . Stanek.” Appellant and 2 OCGA § 17-10-6.1 (c) (1) provides that for a first conviction of a serious violent felony “in which the accused has been sentenced to life imprisonment, that person shall not be eligible for any form of parole or early release administered by the Stat...

...See id. At sentencing, the trial court expressed its intention “to deviate from the mandatory minimum” sentence for felony murder, and it imposed a split sentence including a term of imprisonment of 25 years followed by probation for life.2 This particular sentence suggests reliance on two provisions of OCGA § 17-10-6.1, which provides for sentencing of persons convicted of serious violent felonies, as defined in that Code section; felony murder is designated as a serious violent felony. See OCGA § 17-10-6.1 (a) (1). First, the split sentence, with probation for life following a defined term of imprisonment, suggests reliance on OCGA § 17-10-6.1 (b) (2), which 2 At the guilty plea hearing, the trial court announced that, as to Count 2, felony murder, “as agreed to by the State and the [d]efense, the [c]ourt is going to deviate from the mandatory minimum and sentence...

...certain serious violent felonies.3 Paragraph (b) (2) lists the offenses for which that sentence is required; the General Assembly omitted felony murder from that list. Second, the trial court’s reference “to deviat[ing] from the mandatory minimum” suggests reliance on OCGA § 17-10-6.1 (e), which authorizes trial courts to “depart” from mandatory minimum sentences for certain serious violent felonies “when the prosecuting attorney and the defendant have agreed to a 3 OCGA § 17-10-6.1 (b) (2) provides: Except as provided in subsection (e) of this Code section, the sentence of any person convicted of the serious violent felony of: (A) Kidnapping involving a victim who is less than...

...7 sentence that is below such mandatory minimum.”4 But the authority to depart from a mandatory minimum sentence is limited to cases where a mandatory minimum sentence for a particular serious violent felony is “specified in” OCGA § 17-10-6.1.5 Murder is not one of the serious violent felonies for which a mandatory minimum sentence is specified in OCGA § 17-10-6.1. Thus, OCGA § 17-10-6.1 does not authorize a trial court to impose a sentence for a murder conviction of 25 years in prison followed by probation for life, nor does the Code section authorize a trial court to deviate from the mandatory minimum sentence for murder set out in OCGA § 16-5-1 (e) (1), including by probating a portion of a sentence for murder. See Langley, 313 Ga. at 146 (2) (“OCGA § 17-10-1 (a) (1) (A) excludes 4 OCGA § 17-10-6.1 (e) provides: 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. (Emphasis supplied.) 5 See, e.g., OCGA § 17-10-6.1 (b) (1) (mandatory minimum sentences for kidnapping involving a victim who is 14 years of age or older and for armed robbery), (2) (mandatory minimum sentences for kidnapping involving a victim who is less than 14 years of age, rape, ag...

...8 ‘cases in which life imprisonment, life without parole, or the death penalty may be imposed’” from the power to probate sentences “and also makes the power to probate sentences ‘subject to the provisions of Code Sections 17-10-6.1 and 17-10-6.2,’ which limit the availability of probation for serious violent felonies and sexual offenses.”);6 see also Hanna, 305 Ga. at 102 (2); Humphrey, 297 Ga. at 351. 6 OCGA § 17-10-6.2 provides in pertinent part: (b) Except as provided in subsection (c) of this Code section, and notwithstanding any other provisions of law to the contrary, any person convicted of a sexual offense [as defined in su...

...9  Furthermore, a person who is convicted of felony murder and sentenced to life in prison pursuant to OCGA § 16-5-1 (e) (1) is not eligible for parole until he has served 30 years in prison. See OCGA § 17-10-6.1 (c) (1).7 Thus, the trial court had no statutory authority to enter a sentence making Polanco eligible for parole after serving only 25 years in prison....

...murderer entitled to probation after that period of imprisonment, given that the probation portion of the sentence would not require sentence that is below such mandatory minimum or provided that [specified circumstances exist]. 7 OCGA § 17-10-6.1 (c) (1) provides: Except as otherwise provided in subsection (c) of Code Section 42-9-39 [concerning the authority of the State Board of Pardons and Paroles], for a first conviction of a serious violent felony...

...Indeed, Georgia law already provides that persons convicted of forcible rape, felony aggravated child molestation, felony aggravated sodomy, and aggravated sexual battery must be sentenced to either imprisonment for life or imprisonment for a term of years followed by probation for life. OCGA § 17-10-6.1 (b) (2)....

...precedent were reconsidered. 23 serve at least one year in prison and up to ten years if the felony prosecution being tampered with was for a “serious violent felony,” which includes murder. See OCGA §§ 16-10-94 (c); 17-10-6.1 (a) (1). That provision applies here: the indictment charged Arnsdorff with tampering with evidence “involving the prosecution of the offense of Scott Pinholster, a felony, with intent to prevent the apprehension of Scott Pinholster, another person” by moving Wells’s body and de- stroying her cell phone....

...The current version of OCGA § 42-8-60, see Ga. L. 2019, p. 808, § 7, prohibits a trial court from sentencing a defendant as a first offender if he or she “has been found guilty of . . . a serious violent felony as such term is defined in Code Section 17-10-6.1.” OCGA § 42-8-60 (j) (1). See also OCGA § 17-10-6.1 (a) (1) (providing that “‘serious violent felony’ means: . . . [m]urder or felony murder, as defined in Code Section 16-5-1”). However, OCGA § 17-10-6.1 was not enacted until 1994, two years after Sumrall was convicted of felony murder, see Ga....

...1807, § 1 and Ga. L. 1985, p. 380, § 1; compare Fleming v. State, 271 Ga. 587, 587 (523 SE2d 315) (1999) (holding that, “before 6 the statutory amendments, a defendant found guilty of a serious violent felony under OCGA § 17-10-6.1 was not precluded from requesting and obtaining first[-]offender treatment”)....

...8 of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon[.]” OCGA § 16-8-41 (a). Armed robbery is a felony. See OCGA § 17-10-6.1 (a) (2), (b) (1)....

...The 20-year sentence for malice murder represented a down- ward reduction from the statutory minimum life sentence for that offense. See OCGA § 16-5-1(e)(1) (“A person convicted of the offense of murder shall be punished by death, by imprisonment for life with- out parole, or by imprisonment for life.”); OCGA § 17-10-6.1(e) (“In the court’s discretion, the judge may depart from the mandatory 18 minimum sentence specified in this Code section for a person who is convicted of a serious violent felony when the pros...

...the first 25 years to be served in confinement, and he will not be eligible for parole. . . . [H]e is to serve the full term of life on probation after he serves his 25 years [in prison].” 5 suggests reliance on two provisions of OCGA § 17-10-6.1, which provides for sentencing of persons convicted of serious violent felonies, as defined in that Code section; felony murder is designated as a serious violent felony. See OCGA § 17-10-6.1 (a) (1). First, the split sentence, with probation for life following a defined term of imprisonment, suggests reliance on OCGA § 17-10-6.1 (b) (2), which requires a sentence of “a mandatory minimum term of imprisonment of 25 years, followed by probation for life” for persons convicted of certain serious violent felonies. 3 Subsection (b) (2) lists the offenses 3 OCGA § 17-10-6.1 (b) (2) provides: Except as provided in subsection (e) of this Code section, the sentence of any person convicted of the serious violent felony of: (A) Kidnapping involving a victim who is less than 14 years...

...6 for which that sentence is required; the General Assembly omitted felony murder from that list. Second, the trial court’s reference “to deviat[ing] from the mandatory minimum” suggests reliance on OCGA § 17-10-6.1 (e), which authorizes trial courts to “depart” from mandatory minimum sentences for certain serious violent felonies “when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum.” 4 But the authority to depart from a mandatory minimum sentence is limited to cases where a mandatory minimum sentence for a particular serious violent felony is “specified in” OCGA § 17-10-6.1.5 Murder is not one of the serious violent felonies for which a mandatory minimum sentence is specified in OCGA § 17-10-6.1. Thus, OCGA § 4 OCGA § 17-10-6.1 (e) provides: 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. (Emphasis supplied.) 5 See, e.g., OCGA § 17-10-6.1 (b) (1) (mandatory minimum sentences for kidnapping involving a victim who is 14 years of age or older and for armed robbery), (2) (mandatory minimum sentences for kidnapping involving a victim who is less than 14 years of age, rape, aggravated child molestation, aggravated sodomy, and aggravated sexual battery). 7 17-10-6.1 does not authorize a trial court to impose a sentence for a murder conviction of 25 years in prison followed by probation for life, nor does the Code section authorize a trial court to deviate from the mandatory minimum sentence for murd...

...at __ (2) (“OCGA § 17-10-1 (a) (1) (A) excludes ‘cases in which life imprisonment, life without parole, or the death penalty may be imposed’” from the power to probate sentences “and also makes the power to probate sentences ‘subject to the provisions of Code Sections 17-10-6.1 and 17-10-6.2,’ which limit the availability of probation for serious violent felonies and sexual offenses.”);6 see also Hanna, 305 Ga....

...8  Furthermore, a person who is convicted of felony murder and sentenced to life in prison pursuant to OCGA § 16-5-1 (e) (1) is not eligible for parole until he has served 30 years in prison. See OCGA § 17-10-6.1 (c) (1)....

...ubsection (b) of this Code section, or any portion thereof, when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum provided that [specified circumstances exist]. 7 OCGA § 17-10-6.1 (c) (1) provides: Except as otherwise provided in subsection (c) of Code Section 42-9-39 [concerning the authority of the State Board of Pardons and Paroles], for a first conviction of a serious violent felony...