Thomas Merritt has been charged with the offenses of rape and false imprisonment based on events alleged to have occurred in February 2008. We granted Merritt’s application for interlocutory appeal to address whether the trial court erred by denying his motion to declare unconstitutional OCGA § § 16-6-1 b and 17-10-6.1, the sentencing statutes for the crime of rape. Merritt claims the sentencing scheme created by these statutes for first convictions of rape violates his due process and 6th Amendment rights because the statutes are so vague that they fail to apprise him with sufficient clarity of the maximum sentence that may be imposed should he be convicted of violating OCGA § 16-6-1 a, with the result that he is unable to knowingly and voluntarily decide whether to plead guilty to the rape charge or proceed to trial. We hold that these statutes are not unconstitutional for the reasons alleged by Merritt and therefore affirm. OCGA § 16-6-1 b sets forth four sentencing options as punishment available for a person convicted of the offense of rape: death; imprisonment for life without parole; imprisonment for life; or “a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment.”1 Discussion of the first three options is relevant to Merritt’s objections to the final sentencing option. The first option is not legally available in Georgia in that a death sentence cannot be imposed for a rape conviction. Kennedy v. Louisiana , 554 U.S. II 128 SC 2641, 171 LE2d 525 2008; Coker v. Georgia , 433 U.S. 584 III 97 SC 2861, 53 LE2d 982 1977. As to life without parole, we have held based on the language of OCGA § § 17-10-16 and 17-10-32.1 that life without parole cannot be a punishment for rape under that statute. State v. Velazquez , 283 Ga. 206 657 SE2d 838 2008. Merritt does not take issue with the sentencing option of life imprisonment2 but instead challenges the term of years option, i.e., “for not less than 25 years and not exceeding life imprisonment.” OCGA § 16-6-1 b. Regarding that sentencing option, OCGA § 17-10-6.1 b 2 provides that the sentence shall be a split sentence which shall include a mandatory minimum term of imprisonment of 25 years, followed by probation for life. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and shall not be reduced by any form of pardon, parole, or commutation of sentence by the State Board of Pardons and Paroles. This language addresses the Legislature’s decision to preclude any possibility of parole during the 25-year minimum mandatory sentence.3 OCGA § 17-10-6.1 c 4 addresses the issue of parole for any time exceeding the mandatory minimum. In that regard it provides that any such sentence “shall be served in its entirety as imposed by the sentencing court and shall not be reduced by any form of parole or early release . . . .” As Merritt correctly observes, when the language in OCGA § 16-6-1 b and subsection c 4 of OCGA § 17-10-6.1 are construed together, the result is that trial courts are authorized to impose what may constitute a “de facto” sentence of life without parole by sentencing a defendant to a term of years that, while “not exceeding life imprisonment” as provided by OCGA § 16-6-1 b, may nevertheless equal a defendant’s probable life span, which the defendant would then be required by OCGA § 17-10-6.1 c 4 to serve in its entirety without any possibility of parole.
Contrary to Merritt’s argument, there is no conflict between the term of years sentencing option in OCGA § § 16-6-1 b and 17-10-6.1 and our holding that life without parole cannot be a punishment for rape. See State v. Velazquez , supra, 283 Ga. at 208-209. That holding is predicated upon the codified and uncodified language enacting OCGA § § 17-10-16 and 17-10-32.1, see Ga. L. 1993, p. 1654, § 1 et seq., and the effect on that legislation of case law precluding a death sentence for a rape conviction. See Coker v. Georgia , supra, 433 U.S. at 592 III. See also Kennedy v. Louisiana , supra, 554 U.S. at II grant of writ of certiorari referenced in Velazquez , supra at 208 fn. 2. Nothing in the enactment of OCGA § § 17-10-16 and 17-10-32.1 or our holding in Velazquez served to preclude the Legislature when it amended OCGA § § 16-6-1 b and 17-10-6.1 in 20064 from authorizing trial courts to impose a “de facto” life without parole sentence for a first conviction of rape.
