Isom v. State

408 S.E.2d 701 (1991)

261 Ga. 596

ISOM v. The STATE.

No. S91A0781.

Supreme Court of Georgia.

September 26, 1991.

Reconsideration Denied October 18, 1991.

*702 Marsha L. Sutherland, Darryl B. Cohen & Associates, Atlanta, for Isom.

Thomas J. Charron, Dist. Atty., W. Thomas Weathers, III, Debra Halpern Bernes, Nancy I. Jordan, Asst. Dist. Attys., Marietta, for State.

CLARKE, Chief Justice.

This is an appeal from a second conviction for selling cocaine. Appellant challenges the constitutionality of OCGA § 16-13-30(d), which provides a mandatory life sentence. He also raises several other enumerations of error. We find no error and affirm.

On July 14, 1989, Ricky John Isom was approached by three undercover narcotics agents who were riding in a pick-up truck. One of the officers asked Isom, "Have you got a twenty?" Isom approached the truck and stuck his hand through the window with a plastic bag containing .3 grams of cocaine. One officer held out a twenty dollar bill. The officer snatched the cocaine while another officer grabbed Isom. Isom was convicted of selling cocaine. Because it was his second offense, Isom received a life sentence pursuant to OCGA § 16-13-30(d).

1. Appellant contends that OCGA § 16-13-30(d) violates the equal protection and due process guarantees of the Georgia and U.S. constitutions because it (a) provides a disproportionate sentence; (b) deprives the defendant of consideration of mitigating factors or rehabilitation possibility; (c) gives the district attorney unfettered discretion in deciding whether to invoke the recidivist provision; (d) takes away all discretion from the sentencing judge.

Traditionally, it is the task of the legislature, not the courts, to define crimes and set the range of sentences. Knight v. State, 243 Ga. 770, 257 S.E.2d 182 (1979); Rummell v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980). The legislature's choice of sentence is insulated from judicial review unless it is wholly irrational or so grossly disproportionate to the severity *703 of the crime that it constitutes cruel and unusual punishment. Harmelin v. Michigan, ___ U.S. ___, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy, J., plurality opinion); U.S. v. Grinnell, 915 F.2d 667 (11th Cir.1990). Appellant's argument that his sentence is grossly disproportionate to the severity of the crime was rejected by this court in Stephens v. State, 261 Ga. 467, 405 S.E.2d 483 (1991); Grant v. State, 258 Ga. 299, 368 S.E.2d 737 (1988). The statute does not violate state or federal constitutional guarantees against cruel and unusual punishment. Id.

We further conclude that the statute does not violate the equal protection or due process guarantees of the Georgia and federal constitutions for any of the reasons proffered by appellant. Mandatory sentencing provisions have been universally upheld against due process and equal protection challenges. Knight v. State, 243 Ga. 770, 257 S.E.2d 182 (1979). Due process does not require individualized sentencing. U.S. v. Hamblin, 911 F.2d 551 (11th Cir.1990); U.S. v. Goodface, 835 F.2d 1233 (8th Cir.1987); Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976). It is well settled that a legislature may constitutionally limit judicial discretion in sentencing or bestow on prosecutors the power to choose which statute to use as a basis for prosecution. Knight, supra; U.S. v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979). Even if a prosecutor exercises some degree of selectivity in enforcing a recidivist statute, there is no constitutional violation unless the selectivity is based on some impermissible classification. Knight, supra. "Where a criminal statute does not discriminate on racial grounds or against a suspect class, equal protection and due process concerns are satisfied if the statute bears a `reasonable relation to a proper legislative purpose' and is `neither arbitrary nor discriminatory.'" Fleming v. Zant, 259 Ga. 687, 688, 386 S.E.2d 339 (1989); United States v. Holmes, 838 F.2d 1175, 1177 (11th Cir.1988), quoting Nebbia v. New York, 291 U.S. 502, 537, 54 S. Ct. 505, 78 L. Ed. 940 (1934).

Appellant does not assert that the mandatory sentence statute was selectively enforced against him for some discriminatory or improper reason. Further, his arguments that the statute is wholly irrational and arbitrary were rejected by this court in Tillman v. State, 260 Ga. 801, 400 S.E.2d 632 (1991).

2. Appellant next argues that the jury was impaneled in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The prosecutor struck the only black prospective juror from the panel, giving as his reasons that the juror had been over two hours late for jury service and that she was young and therefore more likely to have been exposed to drugs. The trial court found no systematic exclusion of blacks in this case and found the prosecutor's reasons for striking the juror to be racially neutral. The trial court's determination that the State's use of peremptory challenges was not purposefully discriminatory is entitled great deference. Stripling v. State, 261 Ga. 1, 401 S.E.2d 500 (1991). Having reviewed the circumstances of this case, we cannot say that the trial judge's determination was clearly erroneous.

3. Appellant next argues that evidence of a previous cocaine sale should not have been admitted because it was not relevant to any issue. We disagree. The two transactions were almost identical. The evidence was relevant to defendant's intent and modus operandi and was properly admitted.

4. The evidence adduced at trial, when viewed in a light most favorable to the verdict, would authorize a rational trier of fact to find the defendant guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

5. We have reviewed appellant's other enumerations of error and find them to be without merit.

Judgment affirmed.

*704 All the Justices concur, except HUNT and FLETCHER, JJ., who concur in the judgment only.