BARBER v. STATE (2012)

Vincent Cordero Barber was tried by a DeKalb County jury and convicted of rape,¹ statutory rape,² and child molestation.³ The court below concluded that Barber was subject to the sentencing provisions of OCGA § 17–10–7(c), and pursuant to those provisions, the court sentenced Barber to imprisonment for life without parole for the rape, as well as imprisonment for concurrent terms of twenty years without parole for the statutory rape and child molestation. Barber appeals, contending that he is not properly subject to the sentencing provisions of OCGA § 17–10–7(c), and with that contention, we agree.⁴ Accordingly, we vacate his sentence and remand for resentencing.

According to OCGA § 17–10–7(c), when someone commits a felony, having already been convicted of three earlier felonies, he must serve the sentence imposed upon his conviction for the fourth or subsequent felony without parole:

[A]ny 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.

OCGA § 17–10–7(c). In this case, Barber was convicted of rape, statutory rape, and child molestation, all crimes that he committed, according to the indictment, in or around June 2007. The record shows that, prior to June 2007, Barber had been twice convicted of felonies, once in 2001 for felony assault and receiving stolen property in Ohio, and once in 2002 for impersonating a police officer in DeKalb County. The record also shows that, after June 2007, but before his conviction in this case, Barber had been convicted of a third felony, forgery. Based on these three felonies, the court below concluded that OCGA § 17–10–7(c) applied.

Barber argues, however, that the third prior felony conviction does not count for the purposes of OCGA § 17–10–7(c), inasmuch as that conviction was entered only after he committed the crimes of which he was convicted in this case. We agree. As we have explained before, “[w]hen we consider the meaning of a statute, we must always presume that the General Assembly means what it says and says what it means,” Strength v. Lovett, 311 Ga.App. 35, 43(2)(a), 714 S.E.2d 723 (2011) (citations and punctuation omitted), and an unambiguous statute must be afforded its plain meaning. See Northeast Atlanta Bonding Co. v. State, 308 Ga.App. 573, 577–578(1), 707 S.E.2d 921 (2011). The terms of OCGA § 17–10–7(c) are clear and unambiguous, and they plainly forbid parole only when a defendant, “after having been convicted” of three felonies, “commits [another] felony.”⁵ See Dobbs v. State, 180 Ga.App. 714, 715–716(2), 350 S.E.2d 469 (1986).⁶ Accordingly, the record fails to show a basis for applying the sentencing provisions of OCGA § 17–10–7(c) in this case, the sentence imposed by the trial court must be set aside, and the case remanded to the court below for resentencing.

Convictions affirmed, sentence vacated, and case remanded for resentencing.

BLACKWELL, Judge.

MIKELL, P.J., and MILLER, J., concur.