Court of Appeals

of the State of Georgia

ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A19A0004. LORI ANN ABERNATHY v. THE STATE.

In 2002, a jury found Lori Ann Abernathy guilty of one count of incest (Count

Five), five counts of child molestation (Counts Six through Ten), and twelve counts

of sexual exploitation of children (Counts Eleven through Twenty-Two). Abernathy

committed the offensesfrom 1999 to 2001. The trial courtsentenced Abernathy to 20

years’ confinement on Count Five; 10 years’ confinement and 10 years’ probation on

Count Six, to run consecutively to Count Five; 20 years’ confinement on Count

Seven, to run concurrently with Count Six; 20 years’ confinement on Counts Eight,

Nine, and Ten, to run concurrently with Count Five; and 1 year of confinement on

Counts Eleven through Twenty-Two, to run concurrently with Count Five. We

affirmed Abernathy’s convictionsin an unpublished opinion on appeal. See Case No.

A07A1954 (affirmed Mar. 26, 2008). 

In 2017, Abernathy filed a motion to correct void sentence, claiming that

(1) her sentences on Counts Five, Seven, Eight, Nine, and Ten were void because

they were not split sentences and did not include a term of probation, as required by

OCGA § 17-10-6.2 (b), and (2) her sentence on Count Six was improperly ordered

to run consecutively to Count Five. The trial court denied the motion, and Abernathy

filed this appeal.

An appeal may lie from an order denying a motion to correct or vacate a void

sentence if the defendant raises a colorable claim that the sentence is, in fact, void or

illegal. See Harper v. State, 286 Ga. 216, 216 n.1 (686 SE2d 786) (2009); Burg v.

State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). A sentence is void only if it

imposes punishment that the law does not allow. Crumbley v. State, 261 Ga. 610, 611

September 12, 2018
(1) (409 SE2d 517) (1991). “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 was imposed – the law does not authorize that sentence, most typically

because it exceedsthe mostsevere punishment for which the applicable penalstatute

provides.” von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013).

Abernathy has failed to raise a colorable claim that her sentences are void. 

First, regarding her split-sentence claim, OCGA § 17-10-6.2 was first enacted in

2006, and therefore it has no bearing on the trial court’ssentencing of Abernathy. See

Richardson v. State, 334 Ga. App. 344, 347 (1) (779 SE2d 406) (2015) (“Because

OCGA § 17-10-6.2 was not in effect when [the defendant] committed the charged

crime[s], the trial court committed no error in failing to apply its provisions[.]”); see

also Searcy v. State, 162 Ga. App. 695, 698 (2) (291 SE2d 557) (1982) (this Court

applies the sentencing law in effect at the time the crime was committed).

Accordingly, Abernathy’s “sentence[s][are] not void because [they were] authorized

by the law as it existed at the time of [her] conviction.” McClendon v. State, 287 Ga.

App. 515, 516 (651 SE2d 820) (2007). 

Second, regarding Abernathy’s challenge to the imposition of a consecutive

sentence, a trial court has discretion to impose consecutive or concurrent sentences

for separate offenses, as long as the sentence for each offense is within the statutory

limits. See Rooney v. State, 287 Ga. 1, 3-6 (3) (690 SE2d 804) (2010); see also

OCGA § 17-10-10 (a); Dowling v. State, 278 Ga. App. 903, 904 (630 SE2d 143)

(2006). Here, each of Abernathy’s sentences are within the statutory limits. See

OCGA §§ 16-6-22 (1999-2001); 16-6-4 (1999-2001); 16-12-100 (1999-2001). 
Because Abernathy has not raised a valid void-sentence claim, we lack

jurisdiction to consider her appeal. See Roberts v. State, 286 Ga. 532, 532 (690 SE2d

150) (2010); Harper, 286 Ga. at 218 (2). Accordingly, this appeal is hereby

DISMISSED.

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.

09/12/2018