Nazario v. State

A defendant does not waive consideration of merger issues by pleading guilty, although the claim must come before the reviewing court in a type of proceeding in which criminal convictions may be challenged and the court is limited to finding error based on a record that is usually quite limited.

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Appellant William Nazario pled guilty to 17 counts of a 26-count indictment charging him with numerous crimes related to the beating and stabbing death of his girlfriend, Korean Bowden, and the mistreatment of her three young daughters. Despite Appellant’s argument at the plea hearing that several of his 17 convictions merged, the trial court sentenced him for all 17 crimes. On direct appeal, Appellant again claims that several of his convictions and sentences are void because they merged.

The State contends that we need not address those claims on their merits because Appellant’s entry of a guilty plea waives any and all merger claims. There is a line of Court of Appeals cases, as well as one habeas case from this Court, that hold that a guilty plea waives merger claims. But we conclude that those cases were wrongly decided. This Court has previously addressed the merits of merger claims that were raised on direct appeal from a guilty plea. More fundamentally, we have explained that, under Georgia law, see OCGA § 16-1-7 a, a defendant may not be legally convicted of a crime that is included as a matter of law or fact in another crime for which the defendant also stands convicted. A conviction that merges with another conviction is void—a nullity—and a sentence imposed on such a void conviction is illegal and will be vacated if noticed by this Court, even if no merger claim was raised in the trial court and even if the defendant does not enumerate the error on appeal. The merger issue must arise in a proceeding in which void convictions may be challenged, but a direct appeal is such a proceeding. And the merger of the convictions at issue must, of course, be established by the record.

Nazario v. State

A defendant does not waive consideration of merger issues by pleading guilty, although the claim must come before the reviewing court in a type of proceeding in which criminal convictions may be challenged and the court is limited to finding error based on a record that is usually quite limited.

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