THIRD DIVISION

MCFADDEN, C. J.,

DOYLE, P. J., and HODGES, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

February 4, 2021

In the Court of Appeals of Georgia

A20A2059. HUYNH v. THE STATE.

HODGES, Judge.

This is the second appearance of this case in this Court. In Huynh v. State, 347

Ga. App. XXVII (Aug. 1, 2018) (unpublished), we vacated Nghia Van Huynh’s

sentence because the Superior Court of Gwinnett County erred in sentencing Huynh

to two 20-year terms in confinement for two counts of child molestation (Counts 4

and 13) without including a probationary term in the sentences. See OCGA § 17-10-

6.2 (b) (2012); State v. Riggs, 301 Ga. 63 (799 SE2d 770) (2017). On remand, the

trial court resentenced Huynh to two 15-year terms to serve 10 years in confinement

on Counts 4 and 13.

1 Huynh now appeals from the trial court’s denial of his motion

1 Count 10, a third count of child molestation, does not appear to be a subject

of this appeal.
to modify the sentences he received on resentencing, apparently arguing that he had

been released from custody and could not lawfully be resentenced. We affirm.

In the first appearance of this case, we noted that

[o]n April 13, 2012, Huynh entered an Alford plea to three counts of

child molestation and received an aggregate sentence of 40 years, with

25 yearsin confinement. The sentence was structured astwenty yearsto

serve on Count 4; twenty years with the first five in confinement on

Count 10, and twenty years to serve on Count 13. The sentence on

Count 10 ran consecutively to that on Count 4, and the sentence on

Count 13 ran concurrently with the other two counts.[2

]

(Footnotes omitted.) Acting pro se, Huynh appealed from the denial of his motion to

correct a void sentence, asserting that former OCGA § 17-10-6.2 (b) required that his

sentences on Counts 4 and 13 include at least one year of probation. We agreed,

vacated Huynh’s sentences on Counts 4 and 13, and remanded the case to the trial

court for resentencing.

During a September 14, 2018 resentencing hearing, Huynh attempted to raise

arguments outside the scope of resentencing, including a claim that his original plea

was not knowingly and voluntarily entered. The trial court determined that it did not

2 Huynh’s additional charges were dismissed by nolle prosequi as part of his

plea agreement. 

2
have jurisdiction to address Huynh’s additional arguments, and instead sentenced

Huynh in an October 3, 2018 resentencing order to fifteen years with the first ten in

confinement each on Counts 4 and 13. The sentence for Count 13 ran consecutively

to the sentence for Count 10,

3 which itself ran consecutively to the sentence for Count

4.

4

On June 25, 2019, Huynh filed a timely pro se motion to modify his new

sentences, contending that “some of the chargesshould have merged” and that “there

is additional and relevant information that the court did not hear prior to sentencing.”

During the hearing on his motion, however, Huynh did not address these arguments;

rather, he claimed that he “didn’t do anything to the children” and that he was

released from custody on August 29, 2018 but was immediately and unlawfully

3

 The trial court did not amend or modify Huynh’s sentence on Count 10. 

4 The trial court entered an amended resentencing order on November 28, 2018

to clarify that Huynh’s original guilty pleas were Alford pleas and to correct the

aggregate terms of Huynh’s new sentence from 15 years to serve 10 years in

confinement to 40 years to serve 25 years in confinement. As a result, Huynh’s

aggregate sentence remained the same as his original sentence.

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arrested again by Gwinnett County officers. The trial court denied Huynh’s motion

in a December 10, 2019 order, and this appeal followed.

5

In two related enumerations of error,6 Huynh contends that he was released by

the Department of Corrections “for specific crimes” and taken to Gwinnett County

to be resentenced on those same crimes “without implementing all aspects of due

process of law, including arrest, formal charging, arraignment, etc.”

7 He further

5 At the hearings for Huynh’s resentencing and his motion to modify his

sentence, the trial court provided Huynh with an interpreter. 

6 We note that Huynh’s appellant’s brief contains neither citations of authority

nor citations to the record. See Court of Appeals Rules 25 (a) (3), (c) (2).

Nevertheless, in view of the short length of the record, we will exercise our discretion

in this instance to consider Huynh’s arguments.

7

It appears that Huynh’s argument is based, alternatively, upon a “Certificate

of Discharge” which, Huynh claims, demonstratesthat he had been released on parole

by the Department of Corrections on August 29, 2018, or upon a belief that his

sentence had been completed and that he was a “free man with all the liberty interests

inherent thereof[.]”. However, neither the “Certificate of Discharge” nor his affidavit

are included in the record on appeal and are, instead, attached as exhibits to Huynh’s

appellant’s brief. “[E]xhibits that are not in the record transmitted by the trial court

cannot be considered by this Court.” Holland v. State, 357 Ga. App. 87, 90 (2) (c)

(850 SE2d 170) (2020); see also Court of Appeals Rule 24 (g) (“Do not attach

documents or exhibits to appellate briefs. . . .”). Even had the arguments been

properly presented, that Huynh may have been on parole when he was resentenced

pursuant to this Court’s order is of no significance. See OCGA § 42-9-42 (d) (1)

(“The parolee shall remain in the legal custody of the [State Board of Pardons and

Paroles] until the expiration of the maximum term specified in his or her sentence. .

. .”) (emphasis supplied); Fair v. State, 281 Ga. App. 518, 519 (1) (636 SE2d 712)

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questions whether a resentencing under such circumstances would be a “legally valid

sentence.” We conclude that the trial court correctly denied Huynh’s motion to

modify his sentence.

“Whether to grant a motion to correct a sentence under OCGA § 17-10-1 (f)

lies within the discretion of the trial court. So long as the sentence imposed by the

court falls within the parameters prescribed by law, we will not disturb it.” (Citation

and punctuation omitted.) Patterson v. State, 347 Ga. App. 105, 107 (1) (817 SE2d

557) (2018). Relevant to this case, “a person convicted of a first offense of child

molestation shall be punished by imprisonment for not less than five nor more than

20 years. . . .” OCGA § 16-6-4 (b) (1).

Here, the trial court resentenced Huynh to two terms of fifteen years with ten

years to serve in confinement each on Counts 4 and 13. The trial court also directed

that Huynh’s sentence for Count 13 run consecutively to the sentence for Count 10,

and that the sentence for Count 10 run consecutively to the sentence for Count 4,

resulting in an aggregate sentence of 40 years to serve 25 years in confinement. As

a threshold matter, then, these sentences fall within the statutory range of sentences

(2006) (“The defendant . . . bears the burden of establishing that a sentence has been

served.”).

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for the offense of child molestation. See OCGA § 16-6-4 (b) (1). Moreover, it was

within the trial court’s discretion to impose consecutive sentences for Huynh’s

separate offenses of child molestation. See, e.g., OCGA § 17-10-10 (a) (“Where at

one term of court a person is convicted on more than one indictment or accusation,

or onmore than one count thereof, and sentenced to imprisonment, the sentencesshall

be served concurrently unless otherwise expressly provided therein.”) (emphasis

supplied); Dowling v. State, 278 Ga. App. 903, 904 (630 SE2d 143) (2006) (“a trial

court has discretion to impose consecutive sentences for separate offenses”).

And while Huynh’s aggregate sentence was the same, the sentences for each

individual offense were less severe than his original sentences. See, e.g., Johnson v.

State, 307 Ga. App. 499 (705 SE2d 303) (2010) (“Due process prohibits the

imposition of a more severe sentence as a result of vindictiveness against a defendant

for successfully attacking his conviction.”) (citation and punctuation omitted).

Accordingly, Huynh’s new sentences raise no due process concerns. See, e.g., Fair

v. State, 281 Ga. App. 518, 519 (1) (636 SE2d 712) (2006) (“a concurrent sentence

may be converted into a consecutive sentence without being considered ‘more

severe’”); Alvarado v. State, 248 Ga. App. 810, 811 (1) (547 SE2d 616) (2001)

(affirming resentencing order where trial court “converted [the defendant’s] existing

6
sentence from a concurrent sentence into a consecutive one without increasing the

length of the sentence”). Huynh’s remaining vehicle in pursuit of a remedy, if any he

has, is a petition for habeas corpus. See OCGA § 9-14-40 et seq.; Patterson, 347 Ga.

App. at 109 (1) (“An extraordinary motion for new trial is not a remedy available to

[Huynh] because he pled guilty. Construing [Huynh’s] pleading as a motion to

withdraw his guilty plea or a motion in arrest of judgment is equally ineffectual

because both sorts of motions must be filed within the same term of court at which

the guilty plea or judgment being challenged was entered.”) (citation and punctuation

omitted).

In sum, because the trial court’s sentences fall within the statutory range of

punishment for the offense of child molestation, the trial court did not err in its

resentencing order. We therefore affirm the trial court’s order denying Huynh’s

motion to modify his sentence.8

8 Huynh does not include any enumerations of error related to the arguments

raised in his written motion to modify his sentence — i.e., that merger should have

applied to hissentences and that “there is additional and relevant information that the

court did not hear prior to sentencing” — and they are therefore deemed abandoned.

See, e.g., Williams v. State, 306 Ga. 365, 366 (828 SE2d 360) (2019) (“Matters not

enumerated as error will not be considered on appeal.”) (citation omitted); Sutton v.

State, 354 Ga. App. 399, 401 (2) n. 3 (841 SE2d 2) (2020). In any event, neither of

these arguments form a basis for modifying Huynh’s new sentences. See, e.g.,

Patterson, 347 Ga. App. at 109 (1) (finding that, in view of defendant’s guilty plea,

7
Judgment affirmed. McFadden, C. J., and Doyle, P. J., concur.

a motion to modify sentence “was not a proper procedural mechanism for asserting

such a claim”).

8