CourtListener 10680380

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318 Ga. 340
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S23A1135. REYES v. THE STATE.

COLVIN, Justice.

Appellant Jamie Avila Reyes appeals his sentence of 15 years

to serve for homicide by vehicle in the first degree, driving under the

influence of alcohol (less safe), and other crimes related to the death

of Courtney Zajdowicz.1 Appellant contends that the trial court

1 The crimes occurred on September 1, 2021. On September 3, 2021,
Appellant was arrested pursuant to an arrest warrant. On December 6, 2021,
the federal government began removal proceedings against Appellant to return
him to his native country of Mexico. On December 8, 2021, a Rabun County
grand jury returned an 11-count indictment charging Appellant with three
counts of homicide by vehicle in the first degree (Counts 1-3), two counts of
driving under the influence (Counts 4-5), reckless driving (Count 6), driving on
wrong side of roadway (Count 7), failure to maintain lane (Count 8), driving
without a license (Count 9), no proof of insurance (Count 10), and open
container (Count 11).
On May 25, 2022, Appellant entered a non-negotiated guilty plea to
homicide by vehicle in the first degree (Count 1), driving under the influence
of alcohol, less safe (Count 4), reckless driving (Count 6), and driving without
a license (Count 9). Pursuant to a motion from the State, the trial court entered
an order of nolle prosequi on the remaining counts. The trial court sentenced
Appellant to 15 years in prison, with 15 years to serve, for Count 1; 12 months
each for reckless driving (Count 6) and driving without a license (Count 9), to
run concurrent with Count 1. Lastly, it merged Appellant’s driving under the
influence (less safe) conviction (Count 4) into Count 1 for sentencing purposes.
On June 23, 2022, Appellant appealed his sentence to the Court of
improperly considered his status as an undocumented immigrant

during sentencing, in violation of his rights to due process and equal

protection under the Fourteenth Amendment to the United States

Constitution. Appellant further argues that OCGA § 17-10-1.3,

which allows a trial court to consider whether a criminal defendant

is subject to deportation when determining whether to probate the

defendant’s sentence, is unconstitutional both as-applied and on its

face. Because OCGA § 17-10-1.3 survives rational basis review, and

because the trial court applied this statute within the bounds of the

protections offered by the Due Process and Equal Protection Clauses

of the United States Constitution, Appellant’s claims fail.

1. The facts in this case are uncontested. On September 1,

2021, Appellant was traveling northbound on Georgia Highway 15

when he lost control of his vehicle, crossed over the center lane, and

Appeals on constitutional grounds. On March 30, 2023, the Court of Appeals
remanded his case to the trial court for a ruling on Appellant’s constitutional
claims in the first instance. The parties briefed these issues for the trial court,
which conducted a hearing on May 17, 2023, and issued an order denying
Appellant’s claims on June 26, 2023. Following the denial of his claims by the
trial court, Appellant filed a timely notice of appeal to this Court. The case was
docketed to the Court’s August 2023 term and submitted for a decision on the
briefs.
2
struck Zajdowicz’s vehicle head-on as she drove south. According to

a toxicology report performed after the collision, Appellant’s blood

alcohol content (“BAC”) was 0.18 percent — more than double the

legal limit of 0.08 percent.2 See OCGA § 40-6-391 (a) (5). Data

retrieved from Appellant’s vehicle showed that he was traveling 63

miles per hour when he struck Zajdowicz’s vehicle and that he did

not engage his brakes prior to the collision. By contrast, Zajdowicz

was traveling at 50 miles per hour but braked to 37 miles per hour

before impact. Zajdowicz was transported to Rabun County

Hospital, where she died from her injuries. According to law

enforcement officers who arrived at the scene, Appellant smelled of

alcohol, and there were empty beer cans on the floorboard of his

pickup truck. Appellant was transported to Northeast Georgia

Medical Center, where he was treated until his arrest.

Shortly after Appellant’s arrest, U. S. Immigration and

Customs Enforcement, Department of Homeland Security (“I.C.E.”)

2 It is unclear from the record whether Appellant’s BAC was 0.18 percent

at the time the toxicology exam was performed or whether his BAC was
estimated to be 0.18 percent at the time of the accident.
3
placed a hold on Appellant with the Rabun County Detention

Center, and on December 6, 2021, the United States initiated

removal proceedings against Appellant.

On May 25, 2023, Appellant entered a non-negotiated guilty

plea, and the trial court conducted a sentencing hearing. The State

proffered the above-stated facts related to the collision, which were

uncontested, and recited Appellant’s history of previous traffic

violations. Though Appellant’s maximum possible sentence for his

offenses was 17 years in prison, the State requested a total sentence

of 15 to serve. Appellant, through counsel, asked for a sentence of

five years to serve. Appellant’s counsel conceded for purposes of his

criminal proceedings that Appellant was unlawfully present in the

country but explained that Appellant was a father and a small

business owner with ties to the community lasting approximately 30

years. Appellant’s counsel further explained that following the

“conclusion of his custodial sentence in this case, [Appellant] will be

deported from the United States[ and] permanently barred from

returning.”

4
After hearing victim impact statements from Zajdowicz’s

mother and father, the court pronounced Appellant’s sentence as

follows:

Normally, in a case of this nature, we start looking
at the maximum. And [where] there’s been life taken, we
almost always start looking in that direction. And, of
course, we start taking into account any evidence of
mediation or any type of actions or lack of actions by the
defendant that would have an impact on that.
Here, the defendant’s willingness to accept
responsibility certainly weighs on the Court’s mind and is
something the Court takes into consideration. But there
is also something different in this case that I want to
explain why it does not have the normal, usual impact. I
am just giving you an example here. This is not a
particular case, but I have had several of these cases,
unfortunately, where a life has been taken by the driver
who was under the influence of either alcohol or drugs. So
that record is out there in this court as it is in Stephens
County, Habersham County, and probably every court in
this state, unfortunately, has to deal with these matters.
But whenever a defendant is willing to accept
responsibility, come forward . . . or causes a family not to
have to go through the rigors of a trial and all that
involves, that is certainly, again, something I take into
consideration. But here, we have a situation with
[Appellant] if he does not serve the time in the State’s
penitentiary, then it’s been acknowledged by both sides
that I.C.E. is going to remove him from this country. . . .
The problem with that, I don’t know what happens
when he is removed. And I don’t know if [Appellant] is
originally from Mexico. I am going to assume that. I don’t

5
know his country of origin. But let’s just say that he is
removed back to Mexico. I have no control over what
happens in Mexico if he is taken back to Mexico and
released and lives a free life. That is not justice to me. . . .
So I do know, though, in this state when I pronounce
a sentence . . . what happens then, and I have control to
some degree over that even though the Department of
Corrections has a parole board that makes decisions
without or beyond this Court’s jurisdiction.

The trial court then sentenced Appellant to 15 years to serve, for

Count 1 (homicide by vehicle), merged Count 4 (driving under the

influence) into Count 1 for sentencing purposes, and issued

concurrent sentences of 12 months each for Count 6 (reckless

driving) and Count 9 (driving without a license), in accordance with

the State’s recommendation. Appellant objected on “equal protection

grounds,” and on other constitutional grounds not relevant to his

appeal, but he did not object under the Due Process Clause.3 The

trial court noted Appellant’s objection but did not explicitly rule on

it at that time. Neither the parties nor the trial court explicitly

3 The State does not argue that Appellant waived his federal due process

claim regarding his sentence. Because we conclude that Appellant’s due
process challenge to his sentence fails, see infra Division 3, we do not decide
whether it was properly preserved for review.
6
referenced OCGA § 17-10-1.3 during the sentencing hearing or in

any written filings submitted at or prior to sentencing.

Appellant then appealed his sentence to the Court of Appeals,

where he argued that his sentence violated both the Equal

Protection Clause and the Due Process Clause of the Fourteenth

Amendment. Because the trial court had not ruled on Appellant’s

objection, the Court of Appeals remanded “for the trial court to rule

upon [Appellant’s] challenge to his sentence on constitutional

grounds,” without distinguishing between his due process and his

equal protection claims. Following remand, Appellant briefed both

constitutional claims for the trial court and argued, for the first time,

that to the extent the trial court relied on OCGA § 17-10-1.3 in

issuing its sentence, that statute is unconstitutional on its face and

as applied to him.4 Following additional briefing from the State and

a hearing, the trial court issued a written order denying Appellant’s

4 The State does not argue that Appellant waived his constitutional
claims regarding OCGA § 17-10-1.3. As with Appellant’s federal due process
challenge to his sentence, we decline to consider whether Appellant’s
constitutional claims regarding OCGA § 17-10-1.3 were preserved for review
because we conclude that those claims fail on the merits. See infra Division 2.
7
claims.

In its written order, the trial court found that “[Appellant] is

an illegal alien [and he] would be unlikely to serve any probated part

of his sentence, because [he] will most likely be deported upon his

release from custody.” The trial court explained that it declined to

probate any portion of Appellant’s sentence “[t]o ensure [Appellant]

served his entire sentence” and that “it did not sentence [Appellant]

on the basis of his country of origin.” In concluding that Appellant’s

sentence was constitutional, the trial court relied on Trujillo v.

State, 304 Ga. App. 849 (698 SE2d 350) (2010), which involved a

similar due process and equal protection challenge from an

undocumented immigrant. In Trujillo, the Court of Appeals held

that a trial court could consider an undocumented immigrant’s

ability “to successfully comply with the imposed conditions of

probation,” such as the requirement to maintain suitable

employment, when determining whether to probate a portion of the

defendant’s sentence. Id. at 853 (2). Though the Trujillo decision did

not address the constitutionality of OCGA § 17-10-1.3, the trial court

8
relied on Trujillo’s reasoning to conclude that the statute is

“constitutional on its face and as applied in this case.” Appellant now

appeals his sentence and the trial court’s ruling on the

constitutionality of OCGA § 17-10-1.3.

2. (a) Because the trial court closely tracked the procedure set

forth in OCGA § 17-10-1.3, we turn first to Appellant’s facial

challenge to that statute. As explained below, we conclude that

Appellant’s claim fails.

OCGA § 17-10-1.3 permits trial courts to consider whether the

“person to be sentenced is lawfully present in the United States

under federal law,” and further, whether such person “would be

legally subject to deportation from the United States while serving

a probated sentence.” OCGA § 17-10-1.3 (a), (b). If so, the trial court

may, “[w]here appropriate, decline to probate [the person’s] sentence

in furtherance of the state interest in certain and complete execution

of sentences.” OCGA § 17-10-1.3 (c) (3).5 Appellant argues that this

5 OCGA § 17-10-1.3 provides in full:

9
statute violates the Equal Protection Clause because it treats

(a) In determining whether to probate all or any part
of any sentence of confinement in any felony,
misdemeanor, or ordinance violation case, the sentencing
court shall be authorized to make inquiry into whether
the person to be sentenced is lawfully present in the
United States under federal law.
(b) If the court determines that the person to be
sentenced is not lawfully present in the United States, the
court shall be authorized to make inquiry into whether
the person to be sentenced would be legally subject to
deportation from the United States while serving a
probated sentence.
(c) If the court determines that the person to be
sentenced would be legally subject to deportation from the
United States while serving a probated sentence, the
court may:
(1) Consider the interest of the state in
securing certain and complete execution of its
judicial sentences in criminal and quasi-criminal
cases;
(2) Consider the likelihood that deportation
may intervene to frustrate that state interest if
probation is granted; and
(3) Where appropriate, decline to probate a
sentence in furtherance of the state interest in
certain and complete execution of sentences.
(d) This Code section shall apply with respect to a
judicial determination as to whether to suspend all or any
part of a sentence of confinement in the same manner as
this Code section applies to determinations with respect
to probation.
10
undocumented immigrants differently than persons lawfully

present in the country and that it violates the Due Process Clause

because consideration of a defendant’s immigration status at

sentencing is constitutionally impermissible. In making these

arguments, Appellant contends that undocumented immigrants

constitute a suspect class and therefore that OCGA § 17-10-1.3 is

subject to strict scrutiny. Appellant further argues that OCGA § 17-

10-1.3 fails to satisfy this level of review because the State’s interest

“in securing certain and complete execution of its judicial sentences

in criminal and quasi-criminal cases” is not a compelling one. As

explained below, however, Appellant is incorrect: undocumented

immigrants do not form a suspect class, and OCGA § 17-10-1.3 is

therefore subject only to rational-basis review, which it satisfies.

(i) We begin by noting that the Due Process and Equal

Protection Clauses of the Fourteenth Amendment protect all

“persons” within the United States regardless of whether their

presence in the country is lawful. See Zadvydas v. Davis, 533 U. S.

678, 693 (III) (A) (121 SCt 2491, 150 LE2d 653) (2001) (“[T]he Due

11
Process Clause applies to all ‘persons’ within the United States,

including aliens, whether their presence here is lawful, unlawful,

temporary, or permanent.”); Plyler v. Doe, 457 U. S. 202, 210-212 (II)

(102 SCt 2382, 72 LE2d 786) (1982) (holding that the Due Process

and Equal Protection Clauses protect “aliens whose presence in this

country is unlawful”). Appellant is therefore among the persons

protected by the Due Process and Equal Protection Clauses.

When a claimant brings an equal protection or due process

challenge to a governmental action or to a statute, we apply rational

basis scrutiny unless the claimant is a member of a suspect class or

a fundamental right is at stake. See State v. Holland, 308 Ga. 412,

414 (1) (841 SE2d 723) (2020) (applying rational basis scrutiny to

the appellant’s federal and state due process and equal protection

challenges to the homicide-by-vehicle statute); Favorito v. Handel,

285 Ga. 795, 796, 798 (1) (b) (684 SE2d 257) (2009) (applying

rational basis scrutiny to the appellant’s federal and state equal

protection challenge and his federal due process challenge to a

governmental action).

12
Appellant relies on Graham v. Richardson, 403 U. S. 365 (91

SCt 1848, 29 LE2d 534) (1971) to support his claim that

undocumented immigrants are a suspect class. See Graham, 403 U.

S. at 372 (II) (“[C]lassifications based on alienage, like those based

on nationality or race, are inherently suspect and subject to close

judicial scrutiny,” and “[a]liens as a class are a prime example of a

‘discrete and insular’ minority from whom such heightened judicial

solicitude is appropriate.”). Graham is inapplicable, however,

because it concerned challenges to state welfare laws that

discriminated against noncitizens who were lawfully present in the

country. See id. at 367-368 (I). In Plyler v. Doe, the Supreme Court

considered for the first time what level of scrutiny to apply to state

statutes that concern persons unlawfully present in the United

States. See Plyler, 457 U. S. at 223 (III) (B). There, the Court stated

that “[u]ndocumented aliens cannot be treated as a suspect class

because their presence in this country in violation of federal law is

13
not a ‘constitutional irrelevancy.’” Id.6 Decades later, this Court cited

Plyler when applying rational basis scrutiny to an unlawfully-

present person’s due process and equal protection challenges to a

Georgia statute. See Castillo-Solis v. State, 292 Ga. 755, 761 (3) (740

SE2d 583) (2013) (“[I]llegal immigrants have never been recognized

as a suspect class in constitutional analysis.” (citing Plyler, 457 U.

S. at 223 (III) (B))).7 In light of these cases, we hold Appellant is not

a member of a suspect class, and we accordingly apply rational basis

scrutiny to his constitutional claims.

(ii) To satisfy rational basis review in this context, Appellant

must establish that the classification scheme employed by the

6 Though Plyler involved neither a suspect class nor a fundamental right,

the Supreme Court nevertheless applied a heightened level of scrutiny because
the statute at issue deprived children of undocumented noncitizens of an
education and thereby “impose[d] a lifetime hardship on a discrete class of
children not accountable for their disabling status.” Plyler, 457 U. S. at 223
(III) (B).
7 Our past application of rational basis scrutiny in this context accords

with the Eleventh Circuit Court of Appeals’ treatment of the same federal
constitutional issue: in Estrada v. Becker, 917 F3d 1298 (11th Cir. 2019), that
court applied rational basis review after carefully considering the level of
scrutiny to apply to a Florida policy that required its elective colleges and
universities to verify the lawful presence of admitted students. See Estrada,
917 F3d at 1310 (II) (B).
14
statute bears no “rational relationship to a legitimate government

interest.” Castillo-Solis, 292 Ga. at 761 (3). “Because legislation is

presumptively constitutional, the claimant carries the burden of

proving that a statute is unconstitutional.” Regan v. State, 317 Ga.

612, 616 (3) (b) (894 SE2d 584) (2023).

As previously explained, OCGA § 17-10-1.3 (c) authorizes a

trial court to decline to probate a defendant’s sentence where the

defendant “would be legally subject to deportation from the United

States while serving a probated sentence” as a result of the

defendant’s unlawful presence in the United States. This

classification scheme divides persons to be sentenced based on

whether they are legally subject to deportation, rather than on their

citizenship or whether they are lawfully present. See OCGA

§ 17-10-1.3 (b). This is an important distinction, as not all persons

unlawfully present in the United States are subject to removal. See

Arizona v. United States, 567 U. S. 387, 396 (II) (A) (132 SCt 2492,

183 LE2d 351) (2012) (“Congress has specified which aliens may be

removed from the United States and the procedures for doing so.

15
Aliens may be removed if they were inadmissible at the time of

entry, have been convicted of certain crimes, or meet other criteria

set by federal law.” (citing 8 USC § 1227)).

OCGA § 17-10-1.3 also expressly identifies the governmental

interest at stake as “the interest of the state in securing certain and

complete execution of its judicial sentences in criminal and quasi-

criminal cases.” OCGA § 17-10-1.3 (c) (1). There cannot be any

serious dispute about whether this interest is legitimate. See King

v. State, 272 Ga. 788, 791 (1) (535 SE2d 492) (2000) (“Clearly, law

enforcement and public safety are compelling and legitimate state

purposes.”). Generally, criminal and sentencing statutes further the

State’s interest in deterring and punishing activities that the

General Assembly has deemed harmful to public safety and the

welfare of persons within Georgia. Legislation that governs how

prison sentences may be served, such as those laws providing for

probation and parole, balance the State’s interest in the deterrence

and punishment of crime, among other interests, against the

monetary, societal, and other costs to the community and to the

16
person sentenced of his or her continued incarceration. See generally

OCGA § 42-8-20 et seq. (the State-wide Probation Act); Ga. Comp.

R. & Regs., r. 475-3-.05 (prescribing the factors to be considered by

the State Board of Pardons and Paroles when considering whether

to grant an inmate parole). Ensuring that a convicted person’s

sentence is served without being cut short by his or her removal from

the country is closely associated with Georgia’s general interest in

the punishment and deterrence of crime, as well as the public’s faith

in the “certain[ty]” of lawful criminal sentences issued by the

judiciary. OCGA § 17-10-1.3 (c) (1).

Having identified OCGA § 17-10-1.3’s classificatory scheme

and determined that the State’s interest at issue is legitimate, we

must evaluate whether the former bears a rational relationship to

the latter. OCGA § 17-10-1.3 (c) (3) permits sentencing courts,

“[w]here appropriate,” to “decline to probate a sentence” of a person

subject to deportation “in furtherance of the state interest.” OCGA

§ 17-10-1.3 (c) (3). This relationship is rational: if probating a

convicted person’s sentence would result in the person’s deportation,

17
this would frustrate the State’s interest in ensuring the completion

of that sentence. Similar observations have been made by other state

appellate courts across the country. See, e.g., People v. Sanchez, 190

Cal. App. 3d 224, 231 (I) (1987) (“Obviously, a convicted illegal alien

felon, upon deportation, would be unable to comply with any terms

and conditions of probation beyond the serving of any period of local

incarceration imposed. These are legitimate factors for

consideration by the trial judge in determining whether or not to

grant probation in a particular case.”); State of Maine v. Svay, 828

A2d 790, 791 (Me. 2003) (“[A] defendant’s immigrant status and the

effect that criminal convictions and criminal sentences can have on

deportation are factors that a sentencing court can consider.”);

People v. Hernandez-Clavel, 186 P3d 96, 99 (II) (Colo. App. 2008)

(“[W]e agree with those courts in other jurisdictions that have

determined that the surrounding circumstances of a defendant’s

alien status may be relevant to a sentencing court’s decision whether

to grant or deny probation.”). Because the classification scheme in

OCGA § 17-10-1.3 bears a rational relationship to the legitimate

18
governmental interest expressly advanced by the statute, it survives

rational basis review, and Appellant’s facial challenge to this statute

fails.

(b) Appellant further argues that, to the extent the trial court

applied OCGA § 17-10-1.3 when issuing his sentence, it did so

unconstitutionally because it based his sentence “solely” on his

immigration status. Though the trial court did not mention OCGA §

17-10-1.3 in its oral pronouncement of Appellant’s sentence, its

written order makes clear that it “considered [Appellant’s] status as

an illegal alien as a factor in formulating its sentence as

contemplated by . . . [OCGA] § 17-10-1.3” and that the statute is

“constitutional . . . as applied in this case.” Because the trial court

relied on OCGA § 17-10-1.3 in sentencing Appellant, we consider

Appellant’s as-applied challenge here.

Appellant argues that the trial court impermissibly based his

sentence “solely” on his immigration status in violation of the Due

Process Clause, and that, in doing so, the trial court treated him

differently than other persons convicted of the same crimes, in

19
violation of the Equal Protection Clause. In support of these claims,

Appellant emphasizes the trial court’s remarks that it generally

reduces a defendant’s sentence where the defendant “accept[s]

responsibility” and “causes a family not to have to go through the

rigors of trial,” as Appellant did here, but that the trial court, by its

own admission, did not afford his plea with the “normal, usual

impact” precisely because “I.C.E. is going to remove him from this

country.”8

We have already determined in Division 2 (a) (ii) that where a

trial court has determined that the person to be sentenced is subject

to deportation, it may, within the bounds of the Due Process and

Equal Protection Clauses, decline to probate the person’s sentence

8 Following sentencing but prior to the trial court’s ruling on Appellant’s

constitutional challenges, Appellant filed a “Notice of Supplement to the
Record” with the trial court containing copies of five judgments from the
Mountain Judicial Circuit from the last ten years in which defendants either
received a sentence with less time served for homicide by vehicle and driving
under the influence or received the same time served but the crime involved
more than one death.
The copies of these judgments were not certified, however, and even if
they were certified and we could consider them, Appellant has provided no
information about the immigration statuses of these other defendants. Without
this information, Appellant has not carried his burden to demonstrate a
difference in treatment based on lawful presence or lack thereof.
20
to ensure that it is not frustrated by deportation. This is precisely

what the trial court did here.

The trial court began by stating that where “there’s been [a]

life taken,” it generally starts with the maximum punishment.

Under Georgia law, the trial court has such discretion. See Taylor v.

State, 315 Ga. 630, 639 (3) (b) (884 SE2d 346) (2023) (explaining that

“sentencing judges generally are afforded wide discretion” so long as

the sentence issued falls within the prescribed statutory range and

is otherwise constitutional). The trial court noted Appellant’s

acceptance of responsibility and the beneficial impact such

acceptance had for Zajdowicz’s family. But when considering

whether to probate any portion of Appellant’s sentence as a result of

his guilty plea, the trial court explained that “if [Appellant] does not

serve the time in the State’s penitentiary,” then he would be

removed from the country, rather than serve the remainder of his

sentence. The trial court further explained that it had “no control

over what happens in Mexico if [Appellant] is taken back to Mexico

and released and lives a free life. That is not justice to me.”

21
(Emphasis supplied.) The record shows that the trial court

determined that 15 years was a just sentence for killing Zajdowicz,

and that Appellant would not serve any probated portion of that

sentence due to his impending deportation. The trial court

accordingly issued a sentence of 15 years to serve — two years less

than the maximum possible punishment for Appellant’s crimes if

each of his sentences was served consecutively. The record offers no

evidence that the trial court based its sentence on discriminatory

animus toward undocumented noncitizens. We accordingly hold that

the trial court did not violate the Due Process Clause or the Equal

Protection Clause when it applied OCGA § 17-10-1.3 to Appellant

and declined to probate any portion of his sentence.

3. Because Appellant’s argument in support of his as-applied

challenge to OCGA § 17-10-1.3 is identical to his argument in

support of his general claim that his sentence is unconstitutional

under the Due Process and Equal Protection Clauses of the

Fourteenth Amendment, Appellant’s general claim also fails.

Judgment affirmed. All the Justices concur.

22
Decided February 20, 2024.

OCGA § 17-10-1.3; constitutional question. Rabun Superior

Court. Before Judge Caudell.

Taylor Lee & Associates, Jerome Lee, S. Eli Bennett, for

appellant.

George R. Christian, District Attorney, C. Rebecca Fogal,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Beth A. Burton, Deputy Attorney General, Meghan H. Hill, Clint C.

Malcolm, Senior Assistant Attorneys General, for appellee.

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: February 20, 2024

S23A1135. REYES v. THE STATE.

COLVIN, Justice.

Appellant Jamie Avila Reyes appeals his sentence of 15 years

to serve for homicide by vehicle in the first degree, driving under the

influence of alcohol (less safe), and other crimes related to the death

of Courtney Zajdowicz.1 Appellant contends that the trial court

1 The crimes occurred on September 1, 2021. On September 3, 2021,
Appellant was arrested pursuant to an arrest warrant. On December 6, 2021,
the federal government began removal proceedings against Appellant to return
him to his native country of Mexico. On December 8, 2021, a Rabun County
grand jury returned an 11-count indictment charging Appellant with three
counts of homicide by vehicle in the first degree (Counts 1-3), two counts of
driving under the influence (Counts 4-5), reckless driving (Count 6) driving on
wrong side of roadway (Count 7), failure to maintain lane (Count 8), driving
without a license (Count 9), no proof of insurance (Count 10), and open
container (Count 11).
On May 25, 2022, Appellant entered a non-negotiated guilty plea to
homicide by vehicle in the first degree (Count 1), driving under the influence
of alcohol, less safe (Count 4), reckless driving (Count 6), and driving without
a license (Count 9). Pursuant to a motion from the State, the trial court entered
an order of nolle prosequi on the remaining counts. The trial court sentenced
Appellant to 15 years in prison, with 15 years to serve, for Count 1; 12 months
improperly considered his status as an undocumented immigrant