JOHNSON v. STATE (2026)

Alando Ray Johnson was sentenced pursuant to OCGA § 17-10-7(a) and (c), the latter of which provides for recidivist sentencing where a defendant has been convicted of three prior crimes which, if committed in Georgia, would amount to felonies under Georgia law. Johnson appeals from the denial of his motion for new trial, as amended, arguing that the State failed to prove that the Tennessee convictions used to enhance his sentence would have been felonies under Georgia law. For the reasons that follow, we affirm.

“Whether a defendant was properly sentenced as a recidivist under OCGA § 17-10-7 is subject to de novo review.” (Citation and punctuation omitted.) Pruitt v. State, 354 Ga. App. 73, 74 (1), 840 S.E.2d 597 (2020). “The existence and validity of three prior felony convictions are necessary predicates to the imposition of a recidivist sentence under OCGA § 17-10-7(c)[.]” von Thomas v. State, 293 Ga. 569, 572 (2), 748 S.E.2d 446 (2013).

The record shows that Johnson was charged under a 40-count indictment alleging crimes against multiple victims during the armed robbery of a restaurant.¹ After orders of nolle prosequi were entered, dismissing two counts, Johnson was tried before a jury on the remaining 38 counts. The jury returned guilty verdicts on 33 counts, and, following the merger of some convictions, the trial court sentenced Johnson as a recidivist pursuant to OCGA § 17-10-7 to serve six consecutive life sentences plus 45 years, without the possibility of parole. Johnson filed a motion for a new trial, as amended, waiving a hearing but asserting that his sentence was void. In its order, the trial court noted that the State conceded it had failed to sufficiently prove that certain Tennessee crimes it had used in support of sentencing Johnson under the recidivist statute would have been felonies if committed in Georgia. Because the State asserted it could provide adequate Tennessee charging documents which, at a resentencing hearing, would prove that the Tennessee crimes matched equivalent Georgia felonies,² the trial court granted Johnson's motion to the extent of scheduling a new resentencing hearing. It reserved judgment regarding recidivist resentencing pending the outcome of that hearing, and denied the remainder of Johnson's new trial motion.

Following the resentencing hearing, the trial court affirmed Johnson's prior recidivist sentence, finding that the State had provided sufficient proof of the requisite number of prior equivalent felony convictions to support recidivist sentencing under OCGA § 17-10-7(a) and (c). For the reasons that follow, we affirm.

On appeal, Johnson argues that the trial court erred because it “should have rejected the out-of-state convictions and sentenced [him] under [OCGA §] 17-10-7(a) only.” The pertinent difference between OCGA § 17-10-7(a) and (c) is the number of prior felony offenses. OCGA § 17-10-7(a) provides, in pertinent part:

any person who, after having been convicted of a felony offense in this state or having been convicted under the laws of any other state or of the United States of a crime which if committed within this state would be a felony and sentenced to confinement in a penal institution, 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[.]

(Emphasis added.) OCGA § 17-10-7(c) provides, in pertinent part:

any person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be 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.

(Emphasis added.)

At the original sentencing hearing, the State presented only certified copies of three Tennessee convictions, as well as documents supporting one Georgia conviction. Johnson has not disputed the applicability of the Georgia conviction, which was for entering an automobile with the intent to commit a theft, a felony pursuant to OCGA § 16-8-18. We note at the outset that because of Johnson's unchallenged Georgia felony conviction, the State needs to prove only two Tennessee convictions for crimes that would have been felonies in Georgia in order for OCGA § 17-10-7(c) to apply.

At the resentencing hearing, the State presented, in addition to the certified convictions, charging instruments and plea documents for the Tennessee crimes. The State argued these offenses would have been felonies if Johnson had committed the acts in Georgia. Johnson does not challenge the existence or validity of the Tennessee convictions. Rather, he argues that the State failed to prove that the 2013 Tennessee convictions for attempted aggravated burglary and aggravated burglary would necessarily have been felonies in Georgia at that time. As a result, he contends that OCGA § 17-10-7(c) is inapplicable and only the lone Georgia conviction qualifies for purposes of recidivist sentencing, meaning only OCGA § 17-10-7(a) applies. We disagree.

As an initial matter, our Supreme Court has recognized that

Georgia's general recidivist statute does not expressly specify the analysis a sentencing court should employ when determining whether an out-of-state or federal criminal conviction constitutes a qualifying predicate conviction for enhanced punishment. See OCGA § 17-10-7. It does, however, use words that indicate an elements-only approach. Predicate convictions are described in terms of “felonies” and prior “conviction[s]” for “crimes.” “Conduct,” or any word of similar import, is not used to describe predicate convictions. See id. Because the elements of a crime are those parts of a crime that the prosecution must prove to sustain a conviction, an “elements-only” approach to evaluating predicate convictions is required by the general recidivist statute.

(Footnote omitted.) Nordahl v. State, 306 Ga. 15, 19 (1), 829 S.E.2d 99 (2019). The Supreme Court then set forth the proper analysis for determining whether a federal or out-of-state conviction qualifies as a predicate conviction under a recidivist sentencing scheme. A reviewing court is required to

identify the [out-of-state] crime used to enhance [Johnson's] sentence under OCGA § 17-10-7(a) and (c), consider whether the crime is divisible, and then parse the crime's elements․ After establishing the elements of the [out-of-state] predicate conviction, [the reviewing court] should determine whether those elements would describe a felony under Georgia law.

(Footnote omitted.) Id. at 24 (4), 829 S.E.2d 99;³ accord Butler v. State, 354 Ga. App. 473, 480-481 (3), 841 S.E.2d 162 (2020). This means a sentencing court may only identify the elements “established by virtue of the prior conviction itself, that is, those facts the jury was necessarily required to find to render a guilty verdict or those facts the court was necessarily required to find to satisfy the factual basis for a guilty plea.”(Footnote omitted.) Nordahl, 306 Ga. at 21-22 (2), 829 S.E.2d 99. More specifically,

[e]lements are the constituent parts of a crime's legal definition — the things the prosecution must prove to sustain a conviction. At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant; and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty.

(Citation and punctuation omitted.) Id. at 306 Ga. at 22 (2), 829 S.E.2d 99, citing Mathis v. United States, 579 U.S. 500, 504 (I)(A), 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016).

1. With regard to Johnson's Tennessee convictions, we first identify and examine the relevant Tennessee statutes. The State submitted documents showing the following:

• A 2013 Tennessee conviction ⁴ from a guilty plea to one count of attempting to commit aggravated burglary as defined in Tenn. Code Ann. § 39-14-402 ⁵ by “attempt[ing] to enter the habitation of [the victim], with the intent to commit a theft” in violation of Tennessee's criminal attempt statute, Tenn. Code Ann. § 39-12-101.

• A 2013 Tennessee conviction from a guilty plea ⁶ to two counts of aggravated burglary by, “without the effective consent of the property owner, ․ intentionally, knowingly, or recklessly enter[ing] the habitation of [the victim] with the intent to commit a theft in violation of Tennessee Code Annotated § 39-14-403[.]”⁷

Tenn. Code Ann. § 39-14-402, defining burglary in 2013,⁸ provided, in pertinent part:

(a) A person commits burglary who, without the effective consent of the property owner:

(1) Enters a building other than a habitation (or any portion thereof) not open to the public, with intent to commit a felony, theft or assault;

(2) Remains concealed, with the intent to commit a felony, theft or assault, in a building;

(3) Enters a building and commits or attempts to commit a felony, theft or assault; or

(4) Enters any freight or passenger car, automobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a felony, theft or assault or commits or attempts to commit a felony, theft or assault.

(b) As used in this section, “enter” means:

(1) Intrusion of any part of the body; or

(2) Intrusion of any object in physical contact with the body or any object controlled by remote control, electronic or otherwise.

Tenn. Code Ann. § 39-14-403(a), defining aggravated burglary in 2013, provided, in pertinent part, that “[a]ggravated burglary is burglary of a habitation as defined in §§ 39-14-401 and 39-14-402.”⁹

“When a Georgia sentencing court determines the elements of an out-of-state criminal conviction, the law of the state jurisdiction where the conviction was obtained would govern.” Nordahl, 306 Ga. at 24 (4) n. 16, 829 S.E.2d 99. As noted above, we look first at whether the relevant Tennessee statutes are divisible. Id. at 24 (4), 829 S.E.2d 99. A statute is divisible if it “sets forth multiple crimes[.]” Id. at 23 (3), 829 S.E.2d 99. In Tennessee, an aggravated burglary occurs when the defendant enters a habitation, see Tenn. Code Ann. § 39-14-403(a) as defined in Tenn. Code Ann. § 39-14-401, as opposed to some other type of structure, while violating the elements of Tenn. Code Ann. § 39-14-402(a), the state's burglary law. Aggravated burglary has been deemed indivisible in that, inter alia, the type of habitation involved is not an element of the crime, see Tenn. Code Ann. § 39-14-401 (providing alternate definitions of habitation); Snider v. United States, 908 F.3d 183, 188 (II)(A) (6th Cir. 2018) (finding that, following the U. S. Supreme Court's decision in Mathis, 579 U.S. at 508 (I)(B) n. 1, 136 S.Ct. 2243, abrogating, in part, United States v. Ozier, 796 F.3d 597 (6th Cir. 2015); see Ozier, 796 F.3d at 602-603 (II)(A).

Here, however, Johnson's entry into a habitation is not a part of his appeal; rather, his appeal challenges only the elements of burglary that undergird his aggravated burglary conviction. Under Tennessee law, the elements of burglary are listed in the alternative and are divisible. See United States v. Brown, 957 F.3d 679, 689 (II)(C) (6th Cir. 2020) (finding that Tennessee's burglary statute is divisible, as it criminalizes different offenses, citing Tenn. Code Ann. §§ 39-14-402, 39-14-403). Thus, under Nordahl, Johnson's case was within “a narrow range of cases in which sentencing courts ․ need to look beyond the statutory elements of the crime” and may review the charging instrument, the jury instruction, the terms of the plea agreement, and the transcript of any colloquy between the judge and the defendant. (Citation and punctuation omitted.) 306 Ga. at 23-24 (3), 829 S.E.2d 99. In other words, this Court may consider those documents in “determin[ing] which of [the] averments are essential elements of the crime of [aggravated burglary] to which [Johnson] pleaded (and necessarily admitted) when he entered his guilty plea.” Id. at 25 (4), 829 S.E.2d 99.

Johnson argues that the Tennessee crimes at issue were not equivalent to felonies in Georgia. Citing Tenn. Code Ann. § 39-14-402(b)(2), he contends that in Tennessee, an aggravated burglary or attempted aggravated burglary could be committed by use of an object to intrude into a habitation. He asserts in his appellate brief that Georgia's burglary law requires “at least part of [a person's] body” to enter the habitation.

Georgia's burglary statute, OCGA § 16-7-1, provides, in pertinent part:

(b) A person commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant dwelling house of another ․

Although our courts have found that burglary may be accomplished through intrusion of an object,¹⁰ in an abundance of caution, we will analyze the statute. The question before us, then, is whether, under Tenn. Code Ann. § 39-14-402(b), how the defendant entered the premises — with his body or with only an object in physical contact with or controlled by his body — was an element of the crime that must match the elements of the equivalent Georgia crime, or was merely a means of accomplishing an element of the crime.

“[A] Georgia sentencing court parses the elements of the prior out-of-state ․ crime and determines whether those elements satisfy the statutory definition of a felony under Georgia law.” Nordahl, 306 Ga. at 23 (3), 829 S.E.2d 99. The questions presented are what are the elements of the Tennessee crimes to which Johnson necessarily had to plead, versus what are merely different methods or means of committing these crimes which are “non-elemental fact[s that] ․ by definition [are] not necessary to support a conviction.” (Citation and punctuation omitted.) Mathis, 579 U.S. at 515 (II)(B), 136 S.Ct. 2243; see also id. at 517 (II)(B), 136 S.Ct. 2243 (finding that this approach applies where the statute “expressly enumerat[es]” the various means of satisfying an element of the crime). “[W]e examine the relevant statutes in order to determine the elements of the offense that must be proven by the prosecution beyond a reasonable doubt.” (Citation and punctuation omitted.) State v. Gentry, 538 S.W.3d 413, 420 (II) (Tenn. 2017). (“A person commits aggravated burglary when [ ]he (1) enters a habitation, defined as any structure designed or adapted for the overnight accommodation of persons; (2) without the effective consent of the property owner; and (3) with intent to commit a felony, theft, or assault. Tenn. Code Ann. §§ 39-14-401 to -403.”). Id. at 429 (III)(D). The elements of the Georgia crime are equivalent. Our Supreme Court recognized that to satisfy the “elements” of first degree burglary under OCGA § 16-7-1(b), “what is required is entry of or remaining within, in this case the dwelling house of another, without authority and with the intent to commit a felony or theft therein[.]” (Citation and punctuation omitted.) Moore v. White, 320 Ga. 120, 124-125 (2), 907 S.E.2d 902 (2024).

Although Johnson argues that the elements do not align because the Tennessee statute provides that entry may be accomplished via an object rather than a part of a defendant's body, this is incorrect. How the entry is accomplished is not an element of the crime; it is merely the means by which an element of the crime was accomplished. The charging documents which underlie Johnson's guilty plea bear this out, as they charge the elements of the crime: that Johnson “without the effective consent of the property owner, did intentionally, knowingly, or recklessly enter the habitation of [the victim] with the intent to commit a theft[.]” The charging documents do not identify the means by which Johnson committed that crime; that is, they do not identify whether Johnson entered the habitation with a part of his body or with an object because it was not necessary that he plead and admit to the means of entry. He only had to plead to the element of entry itself (as well as the other elements of the crime). See Nordahl, 306 Ga. at 25 (4), 829 S.E.2d 99; see generally Mathis, 579 U.S. at 518-519 (II)(C), 136 S.Ct. 2243 (noting that the sentencing court looks at charging documents in the record “for the sole and limited purpose of determining whether the listed items are elements of the offense” and finding that if the charging documents “use a single umbrella term[,]” this would “reveal what the prosecutor has to (and does not have to) demonstrate to prevail”) (citation and punctuation omitted). In the instant case, that “single umbrella term” is that Johnson was charged with having “entered” a habitation. He was not charged with the means or method by which he accomplished this entry. See id. at 518 (II)(C), 136 S.Ct. 2243 (noting that where Iowa's burglary law listed “alternative methods of committing one offense, ․ a jury need not agree whether the burgled location was a building, other structure, or vehicle”) (citation and punctuation omitted). As a result, “[a] side-by-side comparison of the elements of [Johnson's Tennessee] conviction and the elements of Georgia's [first degree burglary] statute shows that the elements match.” Nordahl, 306 Ga. at 28 (4), 829 S.E.2d 99.

The trial court did not err in finding that the prior Tennessee aggravated burglary and attempted ¹¹ aggravated burglary convictions were predicate felonies for purposes of OCGA § 17-10-7(c).

2. Johnson does not use the term “rule of lenity,” but he appears to make a philosophically analogous argument: He briefly contends, without citing any legal authority on this particular point, that “the elements of aggravated burglary as it existed under Tennessee law in 2013 show[ ] that it can be both a felony and a misdemeanor in Georgia.” As a result, he asserts, the Tennessee crimes cannot serve as predicate felonies equivalent to Georgia's crimes of first degree burglary and attempted burglary for the purposes of recidivist sentencing under OCGA § 17-10-7(c).

OCGA § 16-7-21(b)(1) provides, in pertinent part, that:

A person commits the offense of criminal trespass when he or she knowingly and without authority:

(1) Enters upon the land or premises of another person or into any part of any vehicle, railroad car, aircraft, or watercraft of another person for an unlawful purpose[.]

In contrast, OCGA § 16-7-1(b) provides that: “A person commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant dwelling house of another․”

Even if we were to assume, which we do not, that the elements to which Johnson pled “fall[ ] under the plain and ordinary meaning of both the [first degree burglary] and criminal-trespass statutes[,] ․ the canon of [statutory] construction that a more specific statute prevails over a general statute resolves any ambiguity between the two statutes.” Smallwood v. State, 310 Ga. 445, 452 (3), 851 S.E.2d 595 (2020). The crimes at issue here cannot be criminal trespass because the felony burglary law has a more specific requirement. In Smallwood, the defendant argued that the rule of lenity should apply and that he should be sentenced for a misdemeanor where his conduct could have violated either the misdemeanor criminal trespass statute (OCGA § 16-7-21(b)) or the felony entering an automobile statute (OCGA § 16-8-18). Id. at 450-451 (3), 851 S.E.2d 595. As noted above, we do not consider a defendant's conduct for purposes of this analysis. See Nordahl v. State, 306 Ga. at 19 (1), 829 S.E.2d 99. Further, the felony entering an automobile statute, like the Georgia first degree burglary statute at issue here, provides that the crime is committed where a person “enters” with the “intent to commit” either a “theft” or a “felony.” See OCGA §§ 6-7-1, 16-8-18. As our Supreme Court determined, “[t]his Court has construed an unlawful purpose as set out in the criminal trespass statute as ‘a purpose to violate a criminal law.’ ” (Citation and punctuation omitted.) Smallwood, 310 Ga. at 452 (3), 851 S.E.2d 595. Like the entering an automobile statute in Smallwood, however, the first degree burglary statute at issue here “criminalizes entry ․ only for the purpose of committing certain designated crimes, rather than the more general ‘unlawful purpose[.]’ ” (Emphasis added.) Id. at 452 (3), 851 S.E.2d 595. Thus, the trial court properly considered Johnson's Tennessee crimes as equivalent to the Georgia felonies of burglary and attempted burglary and properly sentenced Johnson as a recidivist under OCGA § 17-10-7(c); see generally Smallwood, 310 Ga. at 452-453 (3), 851 S.E.2d 595; see also Nordahl, 306 Ga. at 28 (4), 829 S.E.2d 99.

Judgment affirmed.

FOOTNOTES

1.   Johnson was charged with nine counts of armed robbery, ten counts of aggravated assault, ten counts of possession of a firearm during the commission of a felony, nine counts of kidnapping, and two counts of possession of a firearm by a convicted felon.

2.   See Tanksley v. State, 362 Ga. App. 767, 768, 870 S.E.2d 92 (2022) (finding that where resentencing is required because the State failed “failed to carry its burden of showing by competent evidence that [defendant] was a recidivist[,] ․ [t]he State [is] not precluded from introducing evidence of [defendant's] prior convictions at his resentencing”) (citations and punctuation omitted); Thomas v. State, 310 Ga. App. 404, 413 (6), 714 S.E.2d 37 (2011) (physical precedent only) (finding that the State is not prohibited on double jeopardy grounds from introducing competent evidence of prior convictions on remand for resentencing).

3.   See also Nordahl, 306 Ga. at 23-24 (3), 829 S.E.2d 99 (discussing the formal categorical and modified categorical approaches to using predicate convictions, which are “not mutually exclusive”) (citation and punctuation omitted).

4.   In Davidson County, Tennessee, Case No. 2013-I-724, Johnson was convicted on July 18, 2013, of one count of attempting to commit aggravated burglary on May 20, 2013.

5.   Tenn. Code Ann. §§ 39-14-402 to 39-14-404 have since been repealed and renumbered as Tenn. Code Ann. §§ 39-13-1002 to 39-13-1004. See 2021 Pub.Acts, c. 545, §§ 2, 3, eff. July 1, 2021.

6.   In Davidson County, Tennessee, Case No. 2013-I-804, Johnson was convicted on July 18, 2013 of two counts of aggravated burglary committed on May 14, 2013. See OCGA § 17-10-7(d) (providing that “conviction of two or more crimes charged on separate counts of one indictment or accusation ․ shall be deemed to be only one conviction”).

7.   Now Tenn. Code Ann. § 39-13-1003. See footnote 5, supra.

8.   Now Tenn. Code Ann. § 39-13-1002. See footnote 5, supra.

9.   Although Tenn. Code Ann. § 39-14-403(b) identified this crime as a felony in Tennessee, we note that our Supreme Court has observed that Georgia is not barred from according felony status to out-of-state misdemeanor convictions in certain circumstances. See State v. Langlands, 276 Ga. 721, 723 (2), 583 S.E.2d 18 (2003).

10.   See Mullinnix v. State, 177 Ga. App. 168, 168-169, 338 S.E.2d 752 (1985) (analyzing Georgia's burglary statute, OCGA § 16-7-1, and positing: “[t]he question is: does insertion of an instrument through a hole in the door and removal with the instrument or hand of an alarm string constitute ‘entry?’ ” and finding that “the act in this case sub judice ․ constitutes entry[.] ․ The door knob hole was entered by the appellant with a device as surely as if he had stuck his hand in a window with intent to steal[.] ․ [T]he evil is certainly as great.”) (emphasis added); see also O'Kelley v. State, 284 Ga. 758, 760 (1), 670 S.E.2d 388 (2008) (citing Mullinnix in support of a finding of sufficiency of the evidence in a burglary case).

11.   We find that the relevant elements of both States’ criminal attempt statutes are comparable; Johnson does not argue otherwise. Compare Tenn. Code Ann. § 39-12-101(a)(3), OCGA § 16-4-1.

Hodges, Judge.

McFadden, P. J., and Pipkin, J., concur.