Full Opinion

Court of Appeals of the State of Georgia ATLANTA,____________________ September 08, 2026 The Court of Appeals hereby passes the following order: A27D0086. ELFREM MOORE v. THE STATE. Elfrem Moore was convicted of aggravated assault and other crimes in connection with a domestic violence incident against his wife, and the trial court issued an amended final disposition in December 2022, sentencing him as recidivist under OCGA § 17-10-7(c). This Court affirmed his convictions in an unpublished opinion. See Case No. A24A1731 (Mar. 11, 2025). On May 22, 2026, Moore filed in the trial court a motion to correct/vacate a void sentence, which the trial court denied. He has filed a timely application for discretionary appeal. Under OCGA § 17-10-1(f), a trial court has broad authority and discretion to correct, reduce, or modify a sentence “[w]ithin one year of the date upon which the sentence is imposed, or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later.” Once this statutory period expires,1 a trial court may modify only a void sentence. 1 This Court issued its remittitur in Case No. A24A1731 in March 2025. Given the passage of more than one year between the issuance of the remittitur and the filing of Moore’s motion to correct/vacate, it appears that he filed his motion outside the statutory period set forth in OCGA § 17-10-1(f). However, Moore has not included with his application materials the order entering the remittitur in the trial court. See Ct. App. R. 31(g) (“Applications for discretionary appeal pursuant to OCGA § 5-6-35 must include sufficient material to apprise the Court of the appellate issues, in context, and to support the arguments advanced. Failure to submit sufficient material to apprise the Court of the issues and support the argument shall result in denial of the application.”). Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). “A sentence is void if the court imposes punishment that the law does not allow.” Id. (quotation marks omitted). When a sentence falls within the statutory range of punishment, it is neither void nor subject to modification beyond the time provided in OCGA § 17-10-1(f). See id. An appeal may lie from an order denying a motion to correct a void sentence, but only if the defendant raises a colorable claim that the sentence is, in fact, void. Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). Here, Moore does not contend that any of his sentences fall outside the corresponding statutory range of punishment.2 Rather, he asserts that his sentence is void because the trial court modified it without following the proper procedure set forth in OCGA § 17-10-1(f) when it entered an amended sentence on December 7, 2022 changing his recidivist designation from OCGA § 17-10-7(a) to OCGA § 17-10- 7(c). However, Moore was not resentenced; the trial court merely corrected a clerical error in its final disposition, which it was permitted to do. See State v. Hart, 263 Ga. App. 8, 9 (587 SE2d 164) (2003) (explaining that the trial court has the “inherent power to correct its records at any time to show the true intent of the sentencing court at the time the original sentence was imposed” (quotation marks omitted)). He also asserts that his sentence is void because the trial court could not run his 12-month sentences consecutively. Moore’s challenge to the trial court’s imposition of consecutive sentences does not present a colorable claim of voidness because 2 The trial court sentenced Moore to 20 years for family violence aggravated assault, and 12 months each for family violence battery, violating a family violence order, hindering an emergency telephone call, and criminal trespass. All of these sentences fall within their respective statutory ranges of punishment. See OCGA §§ 16-5-21(i) (family violence aggravated assault is punishable by not less than three nor more than twenty years); 16-5-23.1(f)(2)(A) (a first conviction of family violence battery is punishable as a misdemeanor); 16-5-95(c) (violating a family violence order is punishable as a misdemeanor); 16-10-24.3 (hindering an emergency telephone call is punishable by up to twelve months); 16-7-21(d) (criminal trespass is punishable as a misdemeanor); 17-10-3(a) (misdemeanors are punishable by up to twelve months). “[t]here is no constitutionally cognizable right to concurrent, rather than consecutive, sentences” and whether to impose consecutive or concurrent sentences for multiple offenses is within the trial court’s discretion. Osborne v. State, 318 Ga. App. 339, 342(2) (734 SE2d 59) (2012) (quotation marks omitted). He further argues that his sentence is void because some of the counts should have merged and the court erred in failing to apply the rule of lenity. However, a merger claim cannot be considered in a motion to vacate a sentence. Nazario v. State, 293 Ga. 480, 488(2)(d) (746 SE2d 109) (2013). Finally, the fact that a statute authorizes a trial court to choose between alternative sentences “does not mean the statute is ambiguous” nor does it “require the trial court to utilize the rule of lenity.” Waller v. State, 365 Ga. App. 693, 697(3)(a) (879 SE2d 865) (2022). In the absence of a colorable claim that his sentence is void, Moore is not entitled to an appeal. For this reason, this application is hereby DISMISSED. Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 09/08/2026 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk.