FOURTH DIVISION

DOYLE, C. J.,

MILLER and DILLARD, 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.

http://www.gaappeals.us/rules/

July 9, 2015

In the Court of Appeals of Georgia

A14A1770. REGENT v. THE STATE.

MILLER, Judge.

Steven Regent entered into a non-negotiated guilty plea to one count of

aggravated assault (OCGA § 16-5-21 (a) (2)) and one count of aggravated battery

(OCGA § 16-5-24 (a)). The trial court sentenced Regent to 20 years with 12 years to

serve on the aggravated assault charge and a consecutive sentence of 10 years on the

aggravated battery charge. The trial court also banished Regent from all of Georgia,

except for Toombs County, as a special condition of probation. Following the grant

of his petition for habeas relief, Regent appeals,

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contending that (1) the trial court

1 Regent entered his guilty plea on December 18, 2008. On March 11, 2014, the

United States District Court for the Northern District of Georgia granted Regent’s

habeas petition on the groundsthat he was denied his constitutional right to appellate

counsel. 
erred in denying his motion to merge his convictions, and (2) the trial court violated

OCGA § 42-8-35 (a) (6) (A) by banishing him from the entire state, except for

Toombs County. For the reasons that follow, we affirm Regent’s convictions and his

separate sentences for aggravated assault and aggravated battery. We vacate the

banishment provision in his sentencing order, however, and we remand this case to

the trial court solely for the purpose of resentencing on that provision.

Where, as here, the merger issue arises in a guilty plea case, this Court is

limited to finding error, as in all cases, based on the record. . . . While

a defendant does not waive consideration of merger issues by pleading

guilty, his guilty plea does waive the expansion of the factual record that

occurs with a trial. The practical effect of that waiver will usually mean

that he cannot establish (and the court cannot discern) that any of his

convictions merged, particularly as a matter of fact, based on the limited

record.

Nazario v. State, 293 Ga. 480, 488 (2) (d) (746 SE2d 109) (2013). 

So viewed, the limited record from Regent’s guilty plea hearing shows that on

January 27, 2008, Regent and his girlfriend, the victim, went to a birthday party.

When they returned to the victim’s house, Regent suddenly punched her in the face.

Regent then grabbed the victim and hit her again. The victim fell to the floor, and

Regent jumped on top of her and continued punching her in the face, until her eyes

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became swollen and she could notsee. Regent became enraged and began to yell, “I’ll

show you. I’ll get you.” The victim tried to get away fromRegent and grab the phone,

but he continued to beat her. When Regentstopped for a second, the victimheard him

repeat, “I’ll show you. I’ll get you.” 

When the victimwas halfway unconscious, Regent dragged her into the dining

room area, and went into the kitchen. The victim then heard Regent pull a knife out

of the wooden butcher block on her kitchen counter. Regent came back to the dining

room, straddled the victim, grabbed her hands, and pinned them down. Regent then

took the knife and cut her throat from ear to ear, almost cutting her ear off. The victim

felt her skin tearing and she began to scream. Regent then took the knife and cut the

victim’s neck again, this time below the area where he first slit her throat. 

When she fought Regent and tried to get away from him, the victim also

suffered several deep cuts to her hands. The victim’s ring finger was cut to the bone

and a piece of her thumb was cut off, resulting in hypersensitivity in certain parts of

her hand and no feeling in other parts of her hand. .

The victim finally fainted and when she woke up, she saw that her blood was

everywhere, including on her ceiling, walls and floor. The victim ran out of her front

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door and went to a neighbor’s house for help. When her neighbor failed to respond,

the victim ran into the street and eventually found someone to call 911. 

The victim was taken to the hospital where she remained in intensive care on

a respirator for three days and underwent surgeries to reattach the glands and nerves

in her neck. The main nerve going to the side of her face was completely severed and

doctors could not reconnect that nerve without causing more damage to the victim’s

face. As a result of her injuries, the victim has difficulty speaking, eating and

swallowing. The victim also lost her sense of taste, and she has no feeling on the side

of her face. 

1. Regent argues that the trial court erred in failing to merge his convictions

because the same facts were required to prove both the aggravated assault and

aggravated battery charges. We disagree.

In determining whether one crime merges with another, we apply the required

evidence test set forth in Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530)

(2006).

Under the required evidence test, . . . the applicable rule is that where

the same act or transaction constitutes a violation of two distinct

statutory provisions, the test to be applied to determine whether there are

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two offenses or only one, is whether each provision requires proof of a

fact which the other does not.

(Punctuation and footnote omitted.) Drinkard, supra, 281 Ga. at 215; see also Thomas

v. State, 292 Ga. 429, 433 (4) (738 SE2d 571) (2013).

“A person commits the offense of aggravated assault when he or she assaults

. . . [w]ith a deadly weapon or with any object, device, or instrument which, when

used offensively against a person, islikely to or actually does result in serious bodily

injury.” OCGA § 16-5-21 (a) (2). Regent was charged with and pled guilty to this

offense because he cut the victim’s throat with a knife. The evidence presented at the

plea hearing supported Regent’s conviction and separate sentence for this offense. 

A person commits aggravated battery when he maliciously causes bodily harm

to the victim by rendering a member of her body useless. OCGA § 16-5-24 (a).

Regent was charged with and pled guilty to aggravated battery because he seriously

disfigured the victim’s body by slashing her throat. As a result of her injuries, the

victim has difficulty speaking, eating and swallowing, she lost her sense of taste, and

she has no feeling on the side of her face. The evidence presented at the plea hearing

also supported Regent’s conviction and separate sentence for this offense. 

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Since aggravated assault and aggravated battery are two separate offenses with

different elements of proof, the charges do not merge, and it is irrelevant that both

crimes stemmed from a single act or series of continuous acts.2 See Works v. State,

301 Ga. App. 108, 114 (6) (686 SE2d 863) (2009); Robbins v. State, 293 Ga. App.

584, 585-586 (667 SE2d 684) (2008). Accordingly, the trial court did not err in

failing to merge Regent’s convictions for sentencing purposes.

2. Regent contends that the trial court violated OCGA § 42-8-35 (a) (6) (A) by

banishing him from the entire state, except for Toombs County. 

The legislature has expressly provided that banishment is a valid term and

condition of probation. See OCGA § 42-8-35 (a) (6) (A). The trial court, however,

cannot banish a probationer to any area within the state that does not consist of at

least one entire judicial circuit. See id. Since Toombs County is part of the fivecountyMiddle JudicialCircuit, which also includes Emanuel,Jefferson, Washington,

and Candler Counties, the trial court was not statutorily authorized to banish Regent

2

In this case, Regent cut or slashed the victim’s throat twice in apparently

quick succession. Nevertheless, aggravated assault and aggravated battery are two

separate offenses, even if they stem from a single act. See Works, supra, 301 Ga. App.

at 114 (6).

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fromthe entire state, except for Toombs County. See OCGA §§ 15-6-1 (24) and 42-8-

35 (a) (6) (A).

Banishment from the entire state, except for the five-county Middle Judicial

Circuit was presumably an appropriate special probation condition. Nevertheless,

because Regent’s sentencing order does not provide for banishment to the entire

Middle Judicial Circuit, we are constrained to vacate the banishment provision in

Regent’s sentencing order and remand this case to the trial court solely for the

purpose of resentencing Regent on this provision. In doing so we emphasize that

Regent’ssentence of 20 years with 12 yearsto serve on the aggravated assault charge

and a consecutive sentence of 10 years on the aggravated battery charge stands

affirmed.

Judgment affirmed in part, vacated in part and case remanded. Doyle, C. J.,

and Dillard, J., concur.

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