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Georgia Supreme Court Announces Merger Error Claims During Sentencing May Be Raised for First Time in Habeas Petition

by Anthony W. Accurso

THe Supreme Court of Georgia held that claims of merger error during sentencing may be raised for the first time in a properly filed habeas petition and are not procedurally barred by failure to raise such claims in the trial court or on direct appeal.

On October 24, 2007, at around 11p.m., Bilal Jackson obtained a firearm and waited in the street for Darryl Claro to return home. When Claro saw Jackson in the street, he swerved, and Jackson fired four bullets into Claro’s vehicle. Three bullets missed Claro, but one bullet entered Claro’s back and exited just below his armpit. Jackson was 15 years old at the time.

Initially indicted in juvenile court, Jackson’s case was transferred to the superior court the following February. A subsequent indictment filed on June 5, 2009 alleged one count of aggravated assault, three counts of aggravated battery, attempted robbery, attempted murder, hijacking of a motor vehicle, and possession of a firearm during the commission of a felony.

The aggravated assault and aggravated battery charges were based on the first two bullets fired by Jackson, and the attempted murder arose from the third and fourth shots.

At his May 2010 trial, Jackson was acquitted on the hijacking charge while being found guilty of the remaining counts. His sentencing was held in June 2010, at which time the court merged the three aggravated battery into one and sentenced Jackson as follows: 30 years’ imprisonment each for the attempted robbery and attempted murder, to be run concurrently; 20 years each for the aggravated assault and aggravated battery, to be run concurrently to each other but consecutively to the other counts; and 5 years for possessing a firearm during the commission of a felony, to be run consecutive to the other counts. In total, Jackson received a sentence of 55 years.

Jackson obtained new counsel, who motioned for a retrial on grounds unrelated to his eventual habeas petition, but the motion was denied. Counsel filed a direct appeal alleging the same claims presented in the retrial motion, and this too was denied.

On March 25, 2015, Jackson filed a habeas petition, which included the claim that the aggravated assault and aggravated battery charges should have been merged into the attempted murder charge because all those charges were based on substantially similar conduct, i.e., firing bullets into Claro’s vehicle.

The habeas court denied relief, but the Georgia Supreme Court granted Jackson’s application for a certificate of probable cause to appeal.

The Court considered first whether Jackson’s merger claim was procedurally barred, as he did not raise it earlier at trial or in the appellate process. The Court observed that merger claims present sentencing authority issues because a “conviction that merges with another conviction is void—a nullity—and a sentence imposed on such a void conviction is illegal.” Nazario v. State, 746 S.E.2d 109 (Ga. 2013). The Nazario Court explained that “[v]oid convictions and illegal sentences have never been subject to general waiver rules.” The Supreme Court has previously allowed merger claims to be raised in a habeas proceeding because “a merger claim must come before the court in a type of proceeding in which criminal convictions may be challenged.” Id. This includes habeas proceedings under OCGA § 9-14-40. Id. Thus, the Court held “claims of merger error in sentencing may be raised for the first time in a properly filed habeas proceeding and are not procedurally barred by the habeas petitioner’s failure to raise them in the trial court or on direct appeal in his criminal case.”

The Court then addressed the merits of Jackson’s merger claims, i.e., his aggravated assault and aggravated battery convictions should have been merged into his attempted murder conviction.

Based on Hill v. State, 850 S.E.2d 110 (Ga. 2020) (where there is no evidence an appellant committed aggravated assault or aggravated battery “in the manner alleged independent of the act which was intended to cause [the victim’s] death,” the counts merge with the conviction for attempted murder for sentencing), and OCGA § 16-1-6(2) (a crime is a lesser included offense when “[i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission”), the Court held that Jackson’s assault and battery convictions merge into his attempted murder conviction.

The Court explained that Jackson fired four bullets at Claro, all in the same short period of time and all with the apparent intent to kill him. All of the shots fired presented the same risk of injury to the same person.

Accordingly, the Court reversed the habeas court’s judgment rejecting Jackson’s merger challenge to his aggravated assault and aggravated battery convictions and remanded to the habeas court to vacate his convictions and sentences for them. See Jackson v. Crickmar, 860 S.E.2d 709 (Ga. 2021). 

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