Rooney v. State

O.C.G.A. § 17-10-10-providing that, when a person is convicted on more than one indictment or accusation or on more than one count in one term of court and sentenced to imprisonment, the sentences shall be served concurrently, unless otherwise expressly provided-is constitutional.

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In 1995, John Rooney entered a negotiated plea of guilty to rape, aggravated sodomy, aggravated sexual battery, and three counts of battery. In an unpublished opinion, the Court of Appeals affirmed the denial of a motion for out-of-time appeal. Rooney v. State , 248 Ga. App. XXVII 2001. In the years since, Rooney has filed several motions to vacate his convictions and sentences. In 2008, the trial court denied a motion to vacate void consecutive sentences due to the unconstitutionality of OCGA § 17-10-10. Acting pro se, Rooney appealed from that order, and this Court transferred the case to the Court of Appeals because the trial court did not rule upon the constitutional challenge. The Court of Appeals dismissed the appeal, and we granted certiorari and remanded the case to that court, stating that Rooney’s claims were properly the subject of a motion to vacate a void sentence, the denial of which is directly appealable. The Court of Appeals remanded the case to the trial court for consideration and ruling on the constitutional challenge to OCGA § 17-10-10, and noted that an appeal to the proper court may be filed thereafter.

On April 3, 2009, the trial court entered an order analyzing and applying the rule that a constitutional attack on a state statute must be made at the first opportunity, and holding that “Rooney has waived his ability to assert a constitutional challenge to OCGA § 17-10-10 or any other statute in connection with his 1995 conviction.” The trial court further found that “the constitutional challenges asserted by Rooney do not provide grounds for relief; therefore, the Court specifically DENIES the . . . challenge to the constitutionality of OCGA § 17-10-10.” Rooney filed a timely notice of appeal from that order to this Court. In a separate order, the trial court also denied a motion for appointment of counsel.

Rooney v. State

O.C.G.A. § 17-10-10-providing that, when a person is convicted on more than one indictment or accusation or on more than one count in one term of court and sentenced to imprisonment, the sentences shall be served concurrently, unless otherwise expressly provided-is constitutional.

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