Hillman v. JohnsonAnnotate this Case
Marvin Hillman, III appealed the denial of his petition for habeas corpus. In January 2008, Hillman was convicted on two counts of armed robbery and one count each of burglary, aggravated assault, and possession of a firearm by a convicted felon in connection with an armed home invasion in which Hillman and his accomplices stole a cell phone and $7. The felon-in-possession charge was based on Hillman’s prior felony conviction for hindering the apprehension of a criminal, for which he was sentenced to confinement for three years, with the sentence probated. Based on that prior felony conviction and OCGA 17-10-7 (a), the trial court concluded that it was required to sentence Hillman to the maximum time authorized for each offense. Hillman argued on appeal of the denial of his habeas petition that the court erred in rejecting his ineffective assistance claim based on his trial attorney's failure to challenge the use of his prior felony conviction to enhance the sentences for all of his convictions. Hillman based this contention on the Court of Appeals’ decision in "King v. Georgia," (313 SE2d 144 (1984)) and on later cases from that court which purported to apply "King." The Georgia Supreme Court rejected the reasoning of those post-King cases in "Georgia v. Slaughter," (711 SE2d 651) (2011)), explaining that the narrow holding in King was based on a careful examination of 17-10-7 (a)’s practical effect in the specific context of violations of the later-enacted OCGA 16-11-131. Because 17-10-7 (a) and the felon-in-possession statute both applied only when the defendant had a prior felony conviction, the Supreme Court agreed with "King" that applying 17-10-7 (a) in that particular context would effectively nullify that part of 16-11-131 that authorized sentences of less than five years. The Supreme Court concluded that the habeas court's decision was largely correct: even if Hillman's trial counsel was professionally deficient in failing to challenge Hillman’s sentences for the armed robberies, burglary, and aggravated assault based on the Court of Appeals’ post-King cases (because those cases interpreted the law incorrectly), Hillman could not show prejudice. The habeas court erred in holding that Hillman failed to show either deficient performance or prejudice with respect to his recidivist sentence for possession of a firearm by a convicted felon. Under "King," the trial court was not required by 17-10-7 (a) to sentence Hillman to the maximum term of five years for violating 16-11-131. Accordingly, the Supreme Court reversed the habeas court’s denial of this one portion of Hillman’s ineffective assistance of counsel claim. On remand, the habeas court was directed to enter an order vacating Hillman’s five-year sentence for possession of a firearm by a convicted felon and to remand back to the trial court for resentencing within the one-to-five-year sentencing range set by OCGA 16-11-131.