NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: December 10, 2024
S24A1368. SUMRALL v. THE STATE.
LAGRUA, Justice.
In October 1992, Appellant Ammon Sumrall was convicted by
a DeKalb County jury of felony murder, armed robbery, and other
crimes arising out of the shooting death of Wade Barrett, Jr. on April
7, 1991.1 The trial court sentenced Sumrall to serve an aggregate
1 In November 1991, Sumrall was indicted by a DeKalb County grand
jury for murder (Count 1), two counts of felony murder (Counts 2 and 3), three
counts of armed robbery (Counts 4, 5, and 6), burglary (Count 7), three counts
of aggravated assault (Counts 8, 9, and 10), impersonating a public officer
(Count 11), and possession of a firearm during the commission of a crime
(Count 12). A jury trial was held on September 25 through October 5, 1992.
The jury found Sumrall not guilty on Counts 1 and 2, but guilty on the
remaining counts. The trial court sentenced Sumrall to life in prison on the
felony murder predicated on burglary count, life in prison to run consecutive
on one of the armed robbery counts, life in prison to run concurrent on two of
the armed robbery counts, 10 years to run concurrent for each of the
aggravated assault counts, five years to run concurrent on the impersonating
a public officer count, and five years to run consecutive on the possession of a
firearm during the commission of a crime count. Sumrall timely appealed his
convictions to this Court, and we affirmed “as to all convictions and sentences
except that with respect to burglary, which we vacate[d].” Sumrall v. State,
264 Ga. 148, 148 (442 SE2d 246) (1994) (noting that “[a] defendant may not be
convicted of felony murder and also be convicted of the underlying felony which
total of two life sentences to run consecutively, plus five consecutive
years.
More than 30 years after Sumrall’s convictions, he filed a pro
se petition in the Superior Court of DeKalb County on October 20,
2023, seeking retroactive first-offender treatment based on the
amendment to OCGA § 42-8-66, 2 which allows retroactive first—————————————————————
was alleged by the indictment to support the felony murder conviction”).
2 The current version of this statute provides:
(a)(1) An individual who qualified for sentencing pursuant to this
article but who was not informed of his or her eligibility for first
offender treatment may, with the consent of the prosecuting
attorney, petition the court in which he or she was convicted for
exoneration of guilt and discharge pursuant to this article.
(2) An individual who was sentenced between March 18, 1968, and
October 31, 1982, to a period of incarceration not exceeding one
year but who would otherwise have qualified for sentencing
pursuant to this article may, with the consent of the prosecuting
attorney, petition the court in which he or she was convicted for
exoneration of guilt and discharge pursuant to this article.
(b) The court shall hold a hearing on the petition if requested by
the petitioner or prosecuting attorney or desired by the court.
(c) In considering a petition pursuant to this Code section, the
court may consider any:
(1) Evidence introduced by the petitioner;
(2) Evidence introduced by the prosecuting attorney; and
(3) Other relevant evidence.
(d) The court may issue an order retroactively granting first
offender treatment and discharge the defendant pursuant to this
article if the court finds by a preponderance of the evidence that
the defendant was eligible for sentencing under the terms of this
article at the time he or she was originally sentenced or that he or
she qualifies for sentencing under paragraph (2) of subsection (a)
2
offender treatment in certain circumstances. Sumrall, who claimed
he was eligible for first-offender treatment at the time of his
convictions, asked the trial court to grant him an evidentiary
hearing and allow him to present evidence demonstrating that he
was eligible for first-offender treatment in 1992. In conjunction with
his petition, Sumrall filed a document entitled “Affidavit of Ammon
Ra Sumrall,” which was neither signed nor notarized. Additionally,
Sumrall filed a motion requesting that the trial court declare OCGA
§ 42-8-66 (a) (1) unconstitutional, arguing that this provision of the
statute restricts his “access to the courts” and violates “his right to
of this Code section and the ends of justice and the welfare of
society are served by granting such petition.
(e) The court shall send a copy of any order issued pursuant to this
Code section to the petitioner, the prosecuting attorney, the
Georgia Crime Information Center, and the Department of Driver
Services. The Georgia Crime Information Center and the
Department of Driver Services shall modify their records
accordingly.
(f) This Code section shall not apply to a sentence that may be
modified pursuant to subsection (f) of Code Section 17-10-1.
(g) This Code section shall apply to any sentence entered on or
after March 18, 1968.
(h) There shall be no filing fee charged for a petition filed pursuant
to this Code section.
OCGA § 42-8-66.
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prosecute and defend his own cause” under the Georgia and United
States Constitutions.
On February 6, 2024, the trial court entered an order
dismissing Sumrall’s petition for retroactive first-offender
treatment on the basis that “the remedy sought is statutorily
unavailable” and dismissing Sumrall’s motion to declare the statute
unconstitutional “due to lack of standing.” However, on February 13,
2024, during the same term of court, the trial court vacated its
February 6 order and entered an amended order. In the amended
order, the trial court dismissed Sumrall’s petition for retroactive
first-offender treatment for his failure to procure “the necessary
consent of the prosecuting attorney” prior to filing the petition as
required by OCGA § 42-8-66 (a) (1). The trial court also denied
Sumrall’s motion to declare OCGA § 42-8-66 unconstitutional,
concluding that Sumrall “failed to meet his burden to show that
there is a palpable conflict between [OCGA § 42-8-66] and the
Georgia Constitution” and that Sumrall’s “vague allegation that the
code section violates the United States Constitution” had no
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supporting argument or legal authority, other than a cite to the First
Amendment and an unrelated case.
Sumrall filed a timely pro se notice of appeal to this Court on
March 10, 2024. For the reasons that follow, we affirm.
1. Georgia’s “First Offender Act[, OCGA § 42-8-60 et seq.,] is a
unique act by which the legislature extends a form of grace to
individuals who commit certain types of crimes.” Howard v. State,
319 Ga. 114, 117 (2) (902 SE2d 551) (2024). Under the Act, “a firsttime felony offender who enters a guilty plea may be sentenced to
probation or confinement before an adjudication of guilt and without
entering a judgment of guilt.” Id. at 116-117 (2) (citation and
punctuation omitted). See also Davis v. State, 269 Ga. 276, 277 (2)
(496 SE2d 699) (1998) (explaining that the Act “protect[s] the first
offender from the stigma of having a criminal record until an
adjudication of guilt has been entered with regard to the crime for
which the defendant was given first[-]offender treatment”).
Subsection (a) of OCGA § 42-8-60, as amended in 2016, provides in
relevant part:
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When a defendant has not been previously convicted of a
felony, the court may, upon a verdict or plea of guilty or a
plea of nolo contendere and before an adjudication of guilt,
without entering a judgment of guilt and with the consent
of the defendant, defer further proceedings and: (1) Place
the defendant on probation; or (2) Sentence the defendant
to a term of confinement.
OCGA § 42-8-60 (a) (1) and (2).
The current version of OCGA § 42-8-60, see Ga. L. 2019, p. 808,
§ 7, prohibits a trial court from sentencing a defendant as a first
offender if he or she “has been found guilty of . . . a serious violent
felony as such term is defined in [OCGA §] 17-10-6.1.” OCGA § 42-8-60 (j) (1). See also OCGA § 17-10-6.1 (a) (1) (providing that
“‘serious violent felony’ means: . . . “[m]urder or felony murder, as
defined in [OCGA §] 16-5-1”). However, OCGA § 17-10-6.1 was not
enacted until 1994, two years after Sumrall was convicted of felony
murder, see Ga. L. 1994, p. 1959, § 11, and the 1992 version of OCGA
§ 42-8-60 did not include any such language. See Ga. L. 1982, p.
1807, § 1 and Ga. L. 1985, p. 380, § 1; compare Fleming v. State, 271
Ga. 587, 587 (523 SE2d 315) (1999) (holding that, “before the
statutory amendments, a defendant found guilty of a serious violent
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felony under OCGA § 17-10-6.1 was not precluded from requesting
and obtaining first[-]offender treatment”). But we need not decide
in this case whether, at the time of Sumrall’s felony murder
conviction, he could have been sentenced as a first offender under
the 1992 version of OCGA § 42-8-60 because, even if he could have
been sentenced pursuant to that statute at that time, he has failed
to meet the requirements of OCGA § 42-8-66 (a) (1) for the trial court
to now consider retroactive first-offender treatment in his case.
OCGA § 42-8-66 provides in pertinent part:
An individual who qualified for sentencing pursuant to
this article but who was not informed of his or her
eligibility for first offender treatment may, with the
consent of the prosecuting attorney, petition the superior
court in which he or she was convicted for exoneration of
guilt and discharge pursuant to this article.
OCGA § 42-8-66 (a) (1) (emphasis supplied). On appeal, Sumrall
contends that, in 2023, his mother attempted to contact the DeKalb
County District Attorney’s Office on numerous occasions to obtain
the District Attorney’s (“DA”) consent for Sumrall to file a petition
for retroactive first-offender treatment under OCGA § 42-8-66 (a)
7
(1), but his mother was unsuccessful in doing so. Sumrall also
claims that, after he filed his petition and served a copy on the State,
no objections were filed to the petition. On this basis, Sumrall
contends that the DA offered “implied consent” to the filing of his
petition for retroactive first-offender treatment through the DA’s
inaction, and thus, the trial court erred in dismissing Sumrall’s
petition on the grounds that he did not have the necessary consent
from the prosecuting attorney under OCGA § 42-8-66 (a) (1). We see
no merit to Sumrall’s claims.
Sumrall has failed to demonstrate—and essentially concedes
in his briefing—that neither he nor any attorney appearing on his
behalf obtained the DA’s consent to his petition for retroactive firstoffender treatment prior to filing the petition as the statute requires.
See OCGA § 42-8-66 (a) (1). And, on appeal, the State argues that
the petition for retroactive first-offender treatment was properly
dismissed by the trial court without the need for a hearing because
the prosecuting attorney did not in fact consent to the filing of
Sumrall’s petition.
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We have held that a petition for retroactive first-offender
treatment is properly rejected by a trial court without a hearing
where an appellant fails to demonstrate that the prosecuting
attorney consented to the filing of the petition. Cf. White v. State,
302 Ga. 69, 69 (1) (805 SE2d 25) (2017) (holding that, where the
appellant failed to disprove the State’s argument that the petition
was “invalid on its face” because “the prosecuting attorney . . . did
not consent to the filing of the petition”—“the threshold requirement
for petitioning to the superior court”—the trial court did not err in
denying the appellant’s petition for retroactive first-offender
treatment without “hold[ing] a hearing on the matter and enter[ing]
findings of fact and conclusions of law in its order denying [the]
petition”). And the statute does not require the prosecuting attorney
to file a response to a petition for retroactive first-offender
treatment, and thus, the failure to respond cannot be considered a
default or “implied consent” as Sumrall alleges. See OCGA § 42-8-66 (a) (1).
Therefore, because Sumrall “has not shown that [he] had the
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consent of the prosecuting attorney to meet the threshold
requirement for petitioning the superior court,” the trial court did
not err in dismissing Sumrall’s petition for retroactive first-offender
treatment. Id. at 69-70 (2). As such, this claim fails.
2. Sumrall also contends on appeal that the trial court erred in
denying his motion to declare OCGA § 42-8-66 (a) (1)
unconstitutional under the Georgia and United States
Constitutions. We disagree.
In addressing the constitutionality of OCGA § 42-8-66 (a) (1),
we recognize that
every reasonable construction must be resorted to in order
to save a statute from unconstitutionality. This approach
not only reflects the prudential concern that
constitutional issues not be needlessly confronted, but
also recognizes that the legislature, like this Court, is
bound by and swears an oath to uphold the Constitution.
The courts will therefore not lightly assume that the
legislature intended to infringe constitutionally protected
liberties or usurp power constitutionally forbidden it.
Therefore, all presumptions are in favor of the
constitutionality of an Act of the legislature and before an
Act of the legislature can be declared unconstitutional,
the conflict between it and the fundamental law must be
clear and palpable and this Court must be clearly
satisfied of its unconstitutionality. Moreover, because
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statutes are presumed to be constitutional until the
contrary appears, the burden is on the party alleging a
statute to be unconstitutional to prove it.
Barnhill v. Alford, 315 Ga. 304, 311 (2) (b) (882 SE2d 245) (2022)
(citations and punctuation omitted; emphasis supplied). When
considering the statute at issue, “we afford the statutory text its
plain and ordinary meaning, viewing the statutory text in the
context in which it appears, and reading the statutory text in its
most natural and reasonable way, as an ordinary speaker of the
English language would.” Bell v. Hargrove, 313 Ga. 30, 32 (2) (867
SE2d 101) (2021) (citation and punctuation omitted).
(a) Sumrall first argues that OCGA § 42-8-66 (a) (1) is
unconstitutional because the statute purportedly restricts his access
to the courts and his right to prosecute and defend his case for firstoffender treatment under the Georgia Constitution. In support of
Sumrall’s argument, he relies on the following provision of the
Georgia Constitution: “No person shall be deprived of the right to
prosecute or defend, either in person or by an attorney, that person’s
own cause in any of the courts of this state.” Ga. Const. of 1983, Art.
11
I, Sec. I, Par. XII. Sumrall’s argument is unavailing.
“[T]his Court has held that Art. I, Sec. I, Par. XII was never
intended to provide a right of access to the courts, but was intended
to provide only a right of choice between self-representation and
representation by counsel.” Smith v. Baptiste, 287 Ga. 23, 24 (1) (694
SE2d 83) (2010). The record reflects that Sumrall was able to freely
execute that choice here. Additionally—as Sumrall concedes in his
briefing—in Georgia, “meaningful access [to the courts] is simply the
right of a prisoner to raise his claims and be heard.” Gibson v.
Turpin, 270 Ga. 855, 858 (1) (513 SE2d 186) (1999). Sumrall had
the right and opportunity to raise his claims and be heard; he simply
failed to comply with the plain language of OCGA § 42-8-66 (a) (1)
in presenting his claim for retroactive first-offender treatment and
failed to “meet the threshold requirement for petitioning the
superior court.” White, 302 Ga. at 69 (1).
As noted above, neither Sumrall, nor any attorney appearing
on his behalf, obtained the consent of the prosecuting attorney before
filing his petition for retroactive first-offender treatment in this
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case, and the record reflects that Sumrall was not heard on his
petition for this very reason. As was in the trial court’s discretion,
the trial court determined that, because Sumrall did not comply
with the threshold consent requirement of OCGA § 42-8-66 (a) (1),
no hearing was necessary. And this Court has held that the trial
court is “not required to hold a hearing on the petition in this
circumstance.” White, 302 Ga. at 70 (2). See also OCGA § 42-8-66 (b).
Given that Article I, Section I, Paragraph XII of the Georgia
Constitution does not afford a right of access to the courts and
Sumrall has not established that any other provision of the Georgia
Constitution affords such a right, his contention that OCGA § 42-8-66 (a) (1) impedes his access to the courts in violation of the Georgia
Constitution fails. See Smith, 287 Ga. at 24 (1) (noting that “no
express constitutional ‘right of access to the courts’” exists “under
the Georgia Constitution”).
(b) Sumrall also argues that OCGA § 42-8-66 (a) (1) violates
his First Amendment right to be heard and right of access to the
courts under the United States Constitution. Notably, in Sumrall’s
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motion to declare OCGA § 42-8-66 (a) (1) unconstitutional, he did
not expound upon this argument, and the trial court denied
Sumrall’s motion on this basis, concluding that his allegations were
“vague” and lacked any “argument in support” thereof “other than
[a] cite to the First Amendment” and an unrelated case. We see no
error in the trial court’s ruling. Even if Sumrall properly preserved
this constitutional claim on appeal, see Gonzalez v. State, ____ Ga.
_____ (906 SE2d 705) (2024), and assuming without deciding that
the First Amendment provides a right of access to the courts, for the
same reasons delineated above, the plain language of the statute
does not deprive Sumrall of a right to be heard or access to the courts
under the First Amendment as he alleges, nor has he proven any
such deprivation. See Christopher v. Harbury, 536 U.S. 403, 414-415 (III) (A) (122 SCt 2179, 153 LE2d 413) (2002) (holding that a
claim for deprivation of a constitutional right of access to courts
must allege both an underlying cause of action, whether anticipated
or lost, and official acts frustrating litigation).
Therefore, because Sumrall has failed to prove that OCGA §
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42-6-66 (a) (1) is unconstitutional under either the Georgia or United
States Constitutions, see Barnhill, 315 Ga. at 311 (2) (b), we
conclude that the trial court properly denied Sumrall’s motion to
declare OCGA § 42-8-66 (a) (1) unconstitutional.
Judgment affirmed. All the Justices concur.
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