Local News

April 2, 2014

Dalton man wins on sentence appeal

Prosecutors could still object through Friday

— The District Attorney’s Office has until Friday to ask an appeals court to reconsider a ruling that would mean a lighter sentence for a man convicted of identity fraud.

Whitfield County resident Todd Christopher McNair was found guilty by a Whitfield County jury in May 2010 and sentenced to five years in prison plus five years on probation after prosecutors said he went on a $1,000 shopping spree at Walnut Square Mall with a stolen credit card. His attorney, Assistant Public Defender Brandon Sparks, argued that under rules regulating how to apply the law, McNair should have been prosecuted for financial transaction card theft instead, which carries only up to three years in prison.

Identity fraud involves fraudulently using identifying information, including but not limited to credit cards, while financial transaction card theft is specific to using the card without the owner’s permission. Both are felonies.

The argument eventually went all the way to the state Supreme Court, which decided last summer that the “rule of lenity” hadn’t been properly applied. The rule mandates that when more than one violation can apply, the one with the lesser penalty should be used. In McNair’s case, the Court of Appeals of the State of Georgia’s understanding was that the lenity rule only applied if the choice was between a felony and a misdemeanor, not between two felonies.

The Supreme Court ordered the appeals court to reconsider the case, keeping in mind that the rule applies in all instances. The appeals court did so and released an opinion on March 25 in McNair’s favor.

“It’s a good result for Mr. McNair,” Sparks said. “He’s obviously relieved.”

Since McNair has already served three years in prison and is on parole for the rest of his sentence, the ruling means his sentence is over — unless District Attorney Bert Poston asks the appeals court to reconsider its decision or if he files a notice stating he plans to take the case back to the Supreme Court. Poston said he hasn’t made a decision.

“The Court of Appeals initially affirmed the conviction and sentence based on their understanding that the rule of lenity only applied when one of the crimes was a felony and one was a misdemeanor, as that’s normally how it comes up,” Poston said. “(The appeals court) held that the rule did not apply between two felonies. We didn’t really agree with that or argue that point, we just argued that even if you apply the rule of lenity, the elements of the crimes are different so the conviction and sentence for identity fraud is appropriate.”

Sparks said the ruling is a victory not only for McNair but potentially for other defendants as well.

“What the Georgia Supreme Court opinion did was open it up to consideration on two different felonies that have different sentencing provisions,” Sparks said. “The rule of lenity is something we look at a lot.”

This isn’t the first time McNair has taken a case to the state Supreme Court and won. In 2007, McNair was arrested in Dalton and charged with DUI, obstruction of an officer and making an improper left turn. A jury in March 2008 found him not guilty of DUI and obstruction, but they convicted him on the turning violation for pulling into the outermost lane rather than the innermost lane. He appealed to the Supreme Court, which unanimously ruled in 2009 that Georgia’s left turn law was vague and unconstitutional.

McNair has also served time for violation of the Georgia Controlled Substances Act and theft by receiving stolen property, according to the Georgia Department of Corrections website.

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