Court of Appeals

of the State of Georgia

ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A17A0673. LEWIS ALAN CARLTON v. THE STATE.

Lewis Alan Carlton pled guilty to three counts of impersonation of a public

employee, and on October 15, 2012, the trial court imposed a 15 year-sentence, with

the first 6 years to be served in confinement and the balance on probation. He did not

file a direct appeal. On January 20, 2016, he filed a motion to vacate an illegal

sentence, claiming that his sentence was illegal because the trial court deviated from

the recommendation of the negotiated plea agreement without announcing its intent

to reject the recommendation. The trial court dismissed the motion, and Carlton

appeals. We lack jurisdiction. 

Under OCGA § 17-10-1 (f), a sentencing court only has the power to modify

a sentence within one year of the date upon which the sentence is imposed, or within

120 days after receipt of the remittitur upon affirmance of the judgment after direct

appeal, whichever is later. However, a sentencing court has jurisdiction to modify a

sentence beyond thisstatutory limit if the sentence is void. See Jones v. State, 278 Ga.

669, 670 (604 SE2d 483) (2004). A direct appeal may lie from an order denying a

motion to vacate a void sentence only if the defendant raises a colorable claim that

the sentence is, in fact, void. See Harper v. State, 286 Ga. 216, 217 n. 1 (686 SE2d

786) (2009); Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). “Motions

to vacate a void sentence generally are limited to claims that – even assuming the

existence and validity of the conviction for which the sentence wasimposed – the law

does not authorize that sentence, most typically because it exceeds the most severe

punishment for which the applicable penal statute provides.” von Thomas v. State,

293 Ga. 569, 572 (2) (748 SE2d 446) (2013). When a sentence is within the statutory

December 08, 2016
range of punishment, it is not void. Jones, supra at 670.

Here, Carlton’s sentence fell within the statutory range of punishment. See

OCGA § 16-10-23 (providing that the maximum term of imprisonment for

impersonation of a public employee is five years). Further, his challenge to the trial

court’s purported deviation from the negotiated plea agreement does notstate a valid

void-sentence claim. “Assertions taking issue with the procedure employed in

imposing a valid sentence or questioning the fairness of an imposed sentence do not

allege a sentence is void and therefore are not a means for post-appeal, post-§ 17-10-1

(f) sentence modification.” Jones, supra at 670;see also Crane v. State, 302 Ga. App.

422, 423 (2) (a) (691 SE2d 559) (2010) (sentence at odds with plea agreement fell

within statutory guidelines and was not, therefore, void). Because Carlton has not

raised a valid void-sentence claim, we lack jurisdiction to consider his appeal. See

Burg, supra at 120.1

Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia

Clerk’s Office,

Atlanta,____________________

I certify that the above is a true extract from

the minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court

hereto affixed the day and year last above written.

, Clerk.

1 To the extent Carlton’s motion should be construed as a request to withdraw

his guilty plea, it was untimely, because it was filed outside of the term of court in

which he was sentenced. See Crane, supra at 422-423 (1). 

12/08/2016