FIRST DIVISION

BARNES, P. J.,

GOBEIL and MARKLE, JJ.

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.

June 14, 2021

In the Court of Appeals of Georgia

A21A0272. CANALES v. THE STATE.

GOBEIL, Judge.

Following a jury trial, Estuardo Canales was convicted in the Superior Court

of Gwinnett County of rape, incest, and statutory rape. Canales now appeals from the

denial of his motion for new trial, asserting that the trial court erred in sentencing him

to life without parole on the rape conviction, as he was not eligible for that sentence.

As explained more fully below, we agree with Canales about his sentence, although

not for the reasons he argues. Accordingly, we vacate Canales’s sentence on his rape

conviction and remand for entry of a new sentence.

“On appeal from a criminal conviction, the defendant is no longer entitled to

a presumption of innocence and we therefore construe the evidence in the light most

favorable to the jury’s guilty verdict.” Maddox v. State, 346 Ga. App. 674, 675 (816
SE2d 796) (2018) (citation and punctuation omitted). So viewed, the record shows

that in September 2015, Canales’s then 17-year-old stepdaughter revealed to her

church pastor that Canales had been sexually molesting her for a number of years.

With the support of the pastor and other church leaders, the victim then told her

mother about the abuse. The victimfurther revealed thatCanales wasthe father of her

son, who was born when the victim was fourteen years old. 

Following the victim’s outcry, the family contacted law enforcement and after

an investigation, Canales was indicted on two counts of rape, two counts of incest,

and a single count of statutory rape.1 With respect to the rape charges, the indictment

alleged that one rape occurred on November 1, 2010, and that the second rape took

place on June 25, 2015. 

At trial, the victim testified that she was born on September 19, 1997, and that

Canales had been sexually abusing her since she was nine or ten years old. The first

incident of molestation occurred in either 2007 or 2008, on a day when the victim

arrived home from school while her mother was at work. The last incident occurred

in June 2015, a few months before the victim made her outcry. Those two incidents,

1 Canales also was charged with one count of child molestation. At trial, the

State elected to nolle pros that charge, and that count of the indictment was not

submitted to the jury. 

2
like all of the other incidents of molestation, involved Canales having vaginal

intercourse with the victim. And although the victim could not recall the exact

number of times Canales had sex with her, she knew that the abuse occurred on more

than ten occasions. Finally, the victim stated that Canales impregnated her when she

was 14, and she gave birth to their son on August 11, 2012.

2

During the charge conference, the parties discussed the applicable statutes of

limitation for the charged crimes. Following that discussion, the parties agreed that,

although the statute of limitation for rape was fifteen years, the trial court should

instruct the jury that the State had to prove that the crimes were indicted within seven

years of either the victim’s outcry to law enforcement or the victim’s sixteenth

birthday.

3 Additionally, at the State’srequest, the court agreed to instruct the jury that

2 DNA evidence presented at trial showed a 99.9999 percent likelihood that

Canales had fathered the victim’s son. 

3 See OCGA § 17-3-1 (b) (the statute of limitation for rape is 15 years); OCGA

§ 17-3-1 (c) (subject to OCGA § 17-3-2.1, the statute of limitation is seven years for

felonies committed against a victim who was under the age of eighteen at the time of

the offense); OCGA § 17-3-2.1 (for the crimes of rape, incest, and statutory rape

involving a victim under the age of 16, the statute of limitation is tolled “until the

victim has reached the age of 16 or the violation is reported to a law enforcement

agency . . .”).

3
the dates of the alleged crimes as set forth in the indictment were not material

elements of those crimes. Thereafter, the court charged the jury as follows:

The State is not required to prove that the offenses alleged happened on

the date alleged in the indictment. It is sufficient for the State to show

that either the alleged victim’s 16th birthday or the alleged victim’s

disclosure to the law enforcement occurred within the seven years prior

to the return of the indictment. The indictment wasreturned on February

8, 2017. 

The jury found Canales guilty on all counts submitted to it, and, after merging

the two counts of rape and the two counts of incest, the trial court entered judgment

on the jury’s verdict. The trial court sentenced Canales to life without parole4on the

rape conviction, 30 years’ imprisonment on the incest conviction, and 20 years’

imprisonment on the conviction for statutory rape, with all sentences to be served

consecutively. Canales did not object to the sentence as imposed. Canales filed a

motion for new trial, and, following a hearing, the trial court denied that motion. This

appeal followed. 

4

 At sentencing, upon questioning by the trial court, the State indicated that a

sentence of life without the possibility of parole was an option with respect to the

rape charge. 

4
In a single enumeration of error, Canales argues that the trial court erred in

sentencing him to life without parole on his rape conviction. Relying on the Georgia

Supreme Court’s decision in State v. Velazquez, 283 Ga. 206 (657 SE2d 838) (2008),

Canales contends that a defendant convicted of a rape that occurred prior to the 2009

repeal of OCGA § 17-10-32.15 may not be sentenced to life without parole unless the

State provided pretrial notice that it intended to seek the death penalty on the rape

charge. Canalesfurther contendsthat, taken together,the victim’strial testimony (that

the first rape occurred prior to 2009) and the trial court’s jury instructions (that dates

were not a material element of the charged crimes) permitted the jury to convict him

of a rape that occurred prior to the repeal of OCGA § 17-10-32.1.

6 Canales therefore

5 The General Assembly repealed Section 17-10-32.1 during the 2009

legislative session, and that repeal became effective April 29, 2009. See Ga. Laws

2009, Vol. 1, p. 227, § 7; p.228.

6

In its order denying Canales’s new trial motion, the trial courtstated that “the

jury found [Canales] guilty only of crimesthat occurred after 2010” because “the jury

was specifically instructed that the State . . . was required to prove that the offenses

occurred within the seven years preceding the return of the indictment.” And because

the indictment was returned on February 8, 2017, the court concluded that Canales

“was ultimately found guilty of offenses that occurred at the earliest on February 8,

2010.” With respect to any relevant time periods, however, the record shows that the

jury was instructed that the State had to prove that “either the alleged victim’s 16th

birthday or the alleged victim’s disclosure to the law enforcement occurred seven

years prior to the return of the indictment.” Thus, as the State concedes in its brief,

nothing in the jury instructions prevented the jury from convicting Canales of a rape

5
reasons that the trial court had to sentence him for rape pursuant to OCGA § 17-10-

32.1, and because the State failed to provide himsuch pretrial notice, his life sentence

without the possibility of parole is void. See Ewell v. State, 318 Ga. App. 812, 816-

817 (2) (a) (734 SE2d 792) (2012) (a defendant must be sentenced under the relevant

statutory scheme in place at the time he committed the crime at issue); Forde v. State,

289 Ga. App. 805, 809-810 (658 SE2d 410) (2008) (where testimony showed

defendant engaged in sexual battery of the minor victim both before and after the

amendment of the relevant statute, and the jury returned a general verdict, the more

lenient sentencing scheme from the earlier version of the statute must apply).

While we ultimately agree that resentencing is required, we disagree with

Canales’s reasoning. Specifically, he fails to consider either the plain language of

OCGA § 17-10-32.1 or the context in which Velazquez applied that statute. Former

Code section 17-10-32.1 provided:

(a) Subject to the provisions of subsection (b) of this Code section, any

person who has been indicted for an offense for which the death penalty

or life without parole may be imposed may enter a plea of guilty at any

occurring prior to 2009. See Heath v. State, 269 Ga. App. 872, 872 (1) (605 SE2d

427) (2004) (“Where the date alleged in the indictment is not a material element of

the offense, the State may prove the offense as of any date within the statute of

limitation.”) (citation and punctuation omitted).

6
time after indictment, and the judge of the superior court having

jurisdiction may, in the judge’s discretion, sentence the person to life

imprisonment or to any other punishment authorized by law for the

offense named in the indictment.

(b) Unless the district attorney has given notice that the state intends to

seek the death penalty pursuant to the Uniform Rules of the Superior

Courts, the judge shall sentence the defendant to life imprisonment. In

cases where such notice has been given, the judge may sentence the

defendant to death or life without parole only if the judge finds beyond

a reasonable doubt the existence of at least one statutory aggravating

circumstance as provided in Code Section 17-10-30.

OCGA §17-10-32.1 (2008) (emphasis supplied).

Asthe above-emphasized language demonstrates, OCGA § 17-10-32.1 applies

only in those pre-2009 cases where the defendant has entered a guilty plea. See Parks

v. State, 305 Ga. 712, 714 (2) (827 SE2d 669) (2019) (the repeal of OCGA § 17-10-

32.1 “remov[ed] the sentencing duties of a judge regarding a person who pled guilty

to an offense for which the death penalty or life without parole could be imposed”)

(citation and punctuation omitted; emphasissupplied);Velazquez, 283 Ga. at 207 (“in

the specific circumstances of a guilty plea in a case falling under OCGA § 17-10-

32.1, a notice of intent to seek the death penalty is a statutory prerequisite to a

7
sentence of life without the possibility of parole”) (emphasis supplied). Accordingly,

because Canales was convicted following a trial (versus a guilty plea), this statute

does not apply here.7

Although Canales cannot prevail on his argument under OCGA § 17-10-32.1,

we neverthelessfind that the trial court erred in sentencing him to life without parole.

In Velazquez, our Supreme Court expressly rejected the idea that, as a bright-line rule,

“a sentence of life without parole is authorized only in cases in which the State first

sought the death penalty.”

8 Velazquez, 283 Ga. at 207 (citation and punctuation

omitted). Rather, the Court emphasized that whether a specific sentence can be

imposed in a particular case is controlled by the applicable “statutory scheme created

by the General Assembly.” Id. See also Kimbrough v. State, 300 Ga. 516, 520 (3)

7 FormerOCGA § 17-10-31.1, which wasrepealed simultaneouslywith Section

17-10-32.1, addressed sentencing a defendant to life without parole following a jury

trial, and provided that such a penalty could not be imposed unless the jury found “at

least one statutory aggravating circumstance” and recommended “that such sentence

be imposed.” OCGA § 17-10-31.1 (2008). Unlike Section 17-10-32.1, however,

Section 17-10-31.1 did not apply to cases involving any “offense for which the death

penalty or life without parole may be imposed.” Instead, that code section applied

only to cases where the defendant was charged with and tried for murder. OCGA §

17-10-31.1.

8 There is no indication in the record that the State filed a notice of intent to

seek the death penalty on the rape charge against Canales.

8
(796 SE2d 694) (2017). And a provision in the relevant statutory sentencing scheme

that existed prior to April 2009, OCGA § 17-10-30.1, supports Canales’s claim that

the trial court in this case was not authorized to impose a sentence of life without

parole on his rape conviction.

Turning to the statutory scheme in existence prior to 2009, the text of OCGA

§ 16-6-1 (b) appeared to permit a sentence of life imprisonment without parole for a

rape conviction:

A person convicted of the offense of rape shall be punished by death,

[9]

by imprisonment for life without parole, by imprisonment for life, or by

imprisonment for not less than 25 years and not exceeding life

imprisonment, followed by probation for life. Any person convicted

under this Code section shall, in addition, be subject to the sentencing

and punishment provisions of Code Sections 17-10-6.1 [Punishment for

serious violent offenders] and 17-10-7 [Punishment of repeat offenders;

punishment and eligibility for parole of persons convicted of fourth

felony offense].

OCGA § 16-6-1 (b) (2008). And in OCGA § 17-10-16 (a), the Code section

authorizing sentences for imprisonment for life without parole (which was in effect

9

In Georgia, a death sentence cannot be imposed for a rape conviction.

Kennedy v. Louisiana, 554 U. S. 407, 419-421 (II) (128 SCt 2641, 171 LE2d 525)

(2008); Coker v. Georgia, 433 U. S. 584, 592-597 (III) (97 SCt 2861, 53 LE2d 982)

(1977).

9
prior to 2009 and remains in effect now), the General Assembly provided that

“[n]otwithstanding any other provision of law, a person who is convicted of an

offense committed after May 1, 1993, for which the death penalty may be imposed

under the laws of this state may be sentenced to death, imprisonment for life without

parole, or life imprisonment as provided in Article 2 of this chapter.” In turn, Article

2 of Chapter 10 of Title 17 of our Code, entitled “Death Penalty Generally,”

contained OCGA § 17-10-30.1, which governed the imposition of sentences of

imprisonment for life without parole prior to its repeal effective April 29, 2009.

10 As

relevant here, former OCGA § 17-10-30.1 provided:

(b) In all cases for which life without parole may be authorized, the

judge shall consider, or shall include in the judge’s instructions to the

jury for it to consider, any mitigating circumstances or any of the

statutory aggravating circumstances specified byCode Section 17-10-30

which may be supported by the evidence.

(c) The statutory instructions as determined by the trial judge to be

warranted by the evidence shall be given in charge and in writing to the

jury for its deliberation. The jury, if its verdict is a recommendation of

life without parole, shall designate in writing, signed by the foreman of

the jury, the statutory aggravating circumstance or circumstances which

10

 See Ga. Laws 2009, Vol. I, p. 226, § 4; p. 228.

10
it found beyond a reasonable doubt. In nonjury cases the judge shall

make such designation. Unless at least one of the statutory aggravating

circumstances enumerated in Code Section 17-10-30 is so found, life

without parole shall not be imposed.

OCGA § 17-10-30.1 (2008) (emphasis supplied).

The record here showsthat the trial court made no finding at sentencing of any

of the aggravating circumstances set forth in the version of OCGA § 17-10-30 that

existed prior to 2009. Because a possibility existed that the jury convicted Canales

of a rape that occurred prior to 2009, and given the plain language of former Code

Section 17-10-30.1, we find that the trial court was without authority to sentence

Canalesto life without parole on the charge of rape. Accordingly, as Canales was not

otherwise eligible for a life sentence without the possibility of parole on his rape

conviction, we must vacate this portion of the sentence and remand the case to the

trial court for resentencing. See Marshall v. State, 309 Ga. 698, 702 (3) (848 SE2d

389) (2020) (“the sentencing court has jurisdiction to vacate a void sentence at any

time, and the failure to object at trial does not waive such a claim”); Baxter v. State,

329 Ga. App. 589, 590 (2) (765 SE2d 738) (2014) (concluding that defendant’s

sentence of life without the possibility of parole for rape conviction for conduct

occurring prior to 2009 was illegal, and vacating and remanding for resentencing).

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Judgment vacated and case remanded for resentencing. Barnes, P. J., and

Markle, J., concur.

12