Court of Appeals

of the State of Georgia

ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A21A0473. MARK STEPHAN NEWSOME, JR. v. THE STATE.

In 2008, Mark Stephan Newsome, Jr. was convicted of two counts of

aggravated assault (OCGA § 16-5-21), one count of armed robbery (OCGA § 16-8-

41), two counts of false imprisonment (OCGA § 16-5-41), one count of burglary

(OCGA § 16- 7-1), one count of theft by taking (OCGA § 16-8-2), and one count of

possession of a firearm during a felony (OCGA § 16-11-106). We affirmed his

convictions on appeal butremanded for resentencing on Count 2 (aggravated assault)

and Count 3 (armed robbery). See Newsome v. State, 324 Ga. App. 665 (751 SE2d

474) (2013). In 2016, Newsome, appearing pro se, filed a motion to vacate a void

sentence. The trial court denied his motion, and Newsome appeals from that order.

We, however, lack jurisdiction.

Under OCGA § 17-10-1 (f), a court may modify a sentence during the year

after its imposition or within 120 days after remittitur following a direct appeal,

whichever is later. Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010).

Once, as here, this statutory period has expired, a trial court may modify only a void

sentence. Id. A sentence is void if the court imposes punishment that the law does not

allow. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). “Motions to vacate

a void sentence generally are limited to claimsthat – even assuming the existence and

validity of the conviction for which the sentence was imposed – the law does not

authorize thatsentence, most typically because it exceedsthe mostsevere 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 range of

punishment, it is not void. Jones, 278 Ga. at 670. Moreover, a direct appeal does not

November 13, 2020
lie from the denial of a motion to modify a sentence filed outside the statutory time

period unless the motion raises a colorable claim that the sentence is, in fact, void.

Frazier, 302 Ga. App. at 348.

In his motion, Newsome argued that his sentence is void due to the failure to

merge Count 1 (aggravated assault) with Count 3 (armed robbery). Such a merger

argument is a challenge to a conviction rather than a sentence, and thus does not

constitute a valid void sentence claim. See Williams v. State, 287 Ga. 192, 193-194

(695 SE2d 244) (2010). Newsome also argued that the evidence in support of his

burglary conviction is insufficient, which is also a challenge to his conviction rather

than his sentence. The Supreme Court has made clear that a motion seeking to

challenge an allegedly invalid or void judgment of conviction “is not one of the

established procedures for challenging the validity of a judgment in a criminal case”

and that an appeal from the denial of such a motion is subject to dismissal. Roberts

v. State, 286 Ga. 532 (690 SE2d 150) (2010).

Newsome’sremaining claims – that hissentence was unduly harsh and that the

trial court should have imposed concurrent sentences – are also not valid void

sentence arguments. Arguments pertaining to the severity of sentences do not

constitute valid void sentence claims absent a colorable claim that a sentence lies

outside the statutory range of punishment. See Frazier, supra. Additionally, 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

sentence Newsome received is within the statutory limits: 20 years for aggravated

assault, 15 years for armed robbery, 5 years for false imprisonment, 15 years for

burglary, 10 years for theft by taking, and 5 years for possession of a firearm during

the commission of a felony. See OCGA §§ 16-5-21 (b); 16-8-41 (b); 16-5-41 (b); 16-
7-1 (b); 16-8-12 (a) (1); 16-11-106 (b). Accordingly, Newsome’s 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.

11/13/2020