In Davis v. State, the Georgia Court of Appeals vacated a 150-year sentence in an identity fraud case.
Undreas Davis was convicted of three counts of theft by taking and twelve counts of financial identity fraud in 2009. The trial court sentenced him to serve fifteen consecutive ten-year terms, totaling 150 years. Davis was sentenced as a recidivist which meant that as a result of three prior felony convictions, he would not have the possibility of parole. At the sentencing hearing, the prosecution offered proof that Davis had two prior convictions in the state in Michigan and one in federal court. Davis claimed on appeal that the trial court erred in considering his federal conviction as a basis for the recidivist sentencing. The Court of Appeals agreed and vacated the sentence.
Under O.C.G.A. § 17-10-7, Georgia’s “recidivist statute,” if an individual has three prior felony convictions, he may be sentenced without the possibility of parole. The burden is on the State to submit “competent evidence” of these prior convictions for purposes of recidivist sentencing.
Davis argued that the prosecution did not offer sufficient evidence to prove that his federal conviction for theft/receipt of stolen mail would have qualified as a felony under Georgia law. The federal statute at issue, 18 U.S.C. § 1708, criminalizes theft or interference with the mail or receipt of stolen mail. Although there is no comparable provision under Georgia law, the offenses of theft by taking and theft by receiving stolen property are the closest Georgia equivalents to the federal statute. At the time of Davis’ federal conviction, both of these Georgia crimes required at least $500 of property loss to be considered felonies. The Georgia Court of Appeals found that the State failed to present evidence at the sentencing hearing concerning the value of the pieces of mail stolen by Davis. Thus, it was unclear whether Davis’ federal conviction would have been considered a felony under Georgia law. Therefore, the Court held that the trial court erred when it used this conviction to sentence Davis as a recidivist.
Davis’ case raises an interesting question on the issue of proportionality in sentencing as well as a harsh lesson to the criminal defense attorneys who handled this appeal. The final opinion in this case actually replaced a previous opinion that was issued by the Court of Appeals in November. In the original opinion, the Court found that the 150-year sentence was grossly disproportionate to the non-violent property crime that Davis was convicted of. In fact, the Court stated that “[c]omparing the gravity of these property-related offenses with the severity of the sentence, we find that an inference of gross disproportionality arises. In effect, Davis’ sentence for these non-violent property crimes is the most severe punishment imposed by the State of Georgia on any criminal for any crime, other than capital punishment.” However, after a motion for reconsideration, the Court vacated the decision since Davis’ attorneys never raised the disproportionality issue in the trial court.
As the case will be remanded for resentencing anyway, it will be interesting to see how the trial court will react in light of the harsh sentiment voiced by the Court of Appeals regarding the length of the sentence. The lesson to be learned for Georgia criminal defense attorneys is simple: be sure to preserve all constitutional challenges to the sentence in the trial court before taking the case to the next level on appeal. Had the Court of Appeals not ruled in Davis’ favor on the recidivist issue, his case would not have been remanded for resentencing and his only remaining appeal remedy would have been a petition for habeas corpus relief.
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