text:
    A11A2260.
    STALLINGS v. SPARKS et al.
    (723 SE2d 514)
   McFADDEN, Judge.

Former prison inmate Carlos Stallings brought an action against a superior court clerk and deputy clerk, a former sheriff, and a deputy sheriff (the “defendants”), alleging that due to their negligence he had remained imprisoned for three months after he should have been released. Stallings has not pointed to any evidence that he remained imprisoned after his sentence ended. Consequently, we affirm the trial court’s grant of summary judgment to the defendants.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Hutto v. CACV of Colorado, 308 Ga. App. 469 (707 SE2d 872) (2011). We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant. Id.

So viewed, the evidence shows that Stallings was convicted of various offenses and on November 26, 2001, was sentenced to ten years, four to be served in confinement and six to be served on probation. Stallings was given credit for time served since October 7, 1999; thus, his sentence was scheduled to end ten years after that date, on October 7, 2009. See OCGA § 17-10-11 (a) (person convicted of a crime shall be given full credit for each day spent in confinement awaiting trial, which shall be applied toward the person’s sentence).

On January 29, 2007, the trial court found that Stallings had violated the terms of his probation. The court revoked his probation and ordered him to serve the remainder of his sentence in confinement. Stallings was released from prison on October 5, 2009.

Notwithstanding his release two days before the scheduled end of his ten-year sentence, Stallings argues that he was imprisoned for longer than his sentence allowed. He bases this argument on his assertion that OCGA § 42-8-38 (c) required that he receive credit toward his sentence for the time he spent in jail awaiting his probation revocation hearing after violating the terms of his probation, effectively reducing his sentence from ten years to something less than ten years.

OCGA § 42-8-38 does not provide for a reduction in the duration of a defendant’s sentence when the defendant, having violated his probation, spends some time in jail awaiting a probation revocation hearing. Rather, that Code section pertinently provides that if probation is revoked and the court orders the execution of some or all of the original sentence, “the time that the defendant has served under probation shall be considered as time served and shall be deducted from and considered a part of the time he was originally sentenced to serve.” OCGA § 42-8-38 (c). In other words, the court cannot disregard the time a defendant has served on probation when calculating the time remaining on the defendant’s sentence after probation has been revoked. We have held, however, that

periods of incarceration pending final disposition of a probation revocation proceeding . . . cannot be used as “credits” toward the period of incarceration which ultimately results from the trial court’s determination that a violation has occurred and that the original sentence, or some part thereof, should be served in prison.

Decided February 17, 2012.

Goldberg & Cuvillier, Ralph S. Goldberg, for appellant.

Womack, Gottlieb & Rodham, Ronald R. Womack, Steven M. Rodham, for appellee.

Dickey v. State, 157 Ga. App. 13, 15 (2) (276 SE2d 75) (1981).

Stallings argues that our opinion in Franklin v. State, 236 Ga. App. 401 (512 SE2d 304) (1999), supports his position that he should have been released before October 5, 2009. We disagree. In Franklin, the defendant served two years on probation as a first offender before his probation was revoked; the court then sentenced him to the maximum sentence of ten years, to be served “over and above time already served on First Offender probation.” (Punctuation omitted.) Id. at 402. We held that this sentence violated the requirement that the time a probationer already had served on probation be taken into account in determining the amount of his remaining sentence following revocation. See id. at 402 (1). Here, by contrast, the trial court took into account the time Stallings already had served on probation — including Stallings’s pre-revocation jail time — in calculating the amount of time that remained on his sentence following revocation. To also credit Stallings’s pre-revocation jail time toward the remaining time on his sentence, after the entire time he had served on probation already had been taken into account, would constitute an improper double credit. See 1973 Op. Atty. Gen. 73-1.

Simply put, OCGA § 42-8-38 did not require Stallings’s pre-revocation jail time to be credited toward his sentence in a manner that would reduce his overall time served (either on probation or in confinement) to something less than the ten years for which he was sentenced. And there is no dispute that Stallings was released from confinement two days before the ten-year sentence ended. Thus, Stallings has not shown that he was harmed by any alleged acts of negligence on the part of the defendants. Consequently, the trial court did not err in granting summary judgment to the defendants. See generally Rasnick v. Krishna Hospitality, 289 Ga. 565, 566 (713 SE2d 835) (2011) (damage resulting from alleged breach of duty is required element of viable negligence action).

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


source: Caselaw Access Project

author: MCFADDEN, Judge.

license: Public Domain

text:
    A11A2315.
    MOORE v. THE STATE.
    (723 SE2d 508)
   MCFADDEN, Judge.

Willie Moore appeals the order denying his motion to dismiss the indictment against him for violation of his constitutional right to a speedy trial. Because we conclude that the trial court did not abuse its discretion in weighing the relevant factors for determining whether there has been' a constitutional speedy trial violation, we affirm.

This is the third appearance of the case before the court. In its first appearance, Moore v. State, 294 Ga. App. 570 (669 SE2d 498) (2008) (“Moore I”), we noted that the key facts were stipulated and described the factual background as follows:

On April 19, 2004, Moore was arrested on the charge that he had molested his stepdaughter; within ten days, he was appointed counsel. He was able to post bond within a month of the arrest. From thence until October 2007, the matter lingered with the police and the district attorney’s offices; no indictment was obtained until November 29, 2007 (more than 43 months after the arrest), which included charges of statutory rape, aggravated child molestation, and child molestation. During the forty-three-month delay, the State lost two key files: the CID file containing the medical examinations and medical reports concerniñg the child victim, which included the results of the examination of the child’s vaginal area and hymen; and the main investigative report (and all case notes) created by the law enforcement agency investigating the case. No one could identify the physician who performed the medical examination nor the facility at which the examination took place.
On January 7, 2008, Moore was arraigned and pled not guilty. On January 15, Moore filed a plea in bar, moving to dismiss the case on the ground that his constitutional right to a speedy trial had been violated. Simultaneously, he filed a special demurrer (arguing that the indictment was defective in that it alleged only a range of dates for the criminal acts) and a demand for a speedy trial; however, he withdrew the speedy trial demand less than a month later on February 12. In April 2008, the court conducted an evidentiary hearing on the plea in bar, at which Moore’s wife testified and at which the parties stipulated to the key facts. In June 2008, the court entered an order making relevant findings of fact and denying the plea in bar; in that same order, the court also denied the special demurrer on the ground that it was untimely (having been filed after arraignment).

Id. at 571. We affirmed the trial court’s order denying Moore’s plea in bar, id. at 576 (1), but vacated the trial court’s order denying his special demurrer as untimely and remanded the case with instruction to the trial court to hold a hearing to allow the state to present evidence on the demurrer. Id. at 576-577 (2). The remittitur was sent to the trial court on December 5, 2008.

Upon remand, the trial court granted the special demurrer, and within five weeks, on October 28, 2009, the state re-indicted Moore on charges of statutory rape, child molestation, and false imprisonment. On December 16, 2009, Moore filed a demand for speedy trial, plea in bar and motion to dismiss the second indictment, contending that his constitutional right to a speedy trial had been violated. The trial court denied the motion on February 12, 2010, and Moore appealed.

In Moore v. State, 309 Ga. App. 519 (710 SE2d 692) (2011) (“Moore II”), we vacated the order denying the motion to dismiss and remanded the case, directing the court to enter findings of fact and conclusions of law. The remittitur was sent to the trial court on May 25, 2011. The trial court entered a new order denying the motion on June 23, 2011. Moore now appeals the order entered upon remand.

The template for deciding all constitutional speedy trial claims is laid out in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), and Doggett v. United States, 505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992). Ruffin v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008). The analysis has two stages.

In the first stage of the analysis, the court must determine whether the pretrial delay is sufficiently long to be considered presumptively prejudicial. The pretrial delay is measured from the accused’s arrest, indictment, or other formal accusation[,] whichever comes first[,] to the trial or, if the accused files a motion to dismiss the indictment, until the trial court denies the motion. If the delay has passed the point of presumptive prejudice, the court must proceed to the second step of the Barker-Doggett analysis, which requires the application of a delicate, context-sensitive, four-factor balancing test to determine whether the accused has been deprived of the right to a speedy trial.

(Citations and punctuation omitted.) Ferguson v. State, 303 Ga. App. 341, 342 (693 SE2d 578) (2010). The four factors to be considered in the case of presumptively prejudicial delay are (a) the length of the delay, (b) the reason for the delay, (c) the defendant’s assertion of his right, and (d) the prejudice to the defendant. State v. Redding, 274 Ga. 831, 831-832 (561 SE2d 79) (2002). We review the trial court’s decision under an abuse of discretion standard. Id. at 832. And we defer to the trial court’s findings of fact and its weighing of disputed facts. State v. White, 282 Ga. 859, 861 (2) (655 SE2d 575) (2008).

1. “Where a trial has not occurred, the delay should be calculated from the date of arrest or other formal accusation to the date on which a defendant’s speedy trial motion was granted or denied.” State v. Porter, 288 Ga. 524, 526 (2) (b) (705 SE2d 636) (2011). The length of the delay, more than 84 months from Moore’s April 19, 2004, arrest to the trial court’s June 23, 2011, denial of his motion to dismiss, is presumptively prejudicial. Doggett, 505 U. S. at 652, n. 1 (delay is presumptively prejudicial as it approaches one year). The trial court therefore properly proceeded to apply the Barker factors in the second stage of the analysis.

2. (a) After determining that the delay is presumptively prejudicial so as to trigger application of the four factors of Barker, the length of delay must be reconsidered as the first factor. Ruffin, 284 Ga. at 56-57 (2) (b) (i). “This is because uncommonly long delays have a tendency to compromise the reliability of trials in ways that neither party can prove or, for that matter, identify.” (Citation and punctuation omitted.) Hayes v. State, 298 Ga. App. 338, 341 (2) (a) (680 SE2d 182) (2009).

[W]e note that although the trial court properly concluded that the delay in this case was sufficient to require an analysis of [Moore’s] speedy trial claim, it does not appear from our reading of the order that the court weighed the length of the delay in conducting that analysis. . . . [T]o the extent the trial court failed to consider this factor in the Barker-Doggett balancing test, it erred.

(Citations and punctuation omitted.) Arbegast v. State, 301 Ga. App. 462, 464 (2) (a) (688 SE2d 1) (2009). Although the trial court should have considered this factor in the Barker-Doggett balancing test and weighed it against the state, the error is not dispositive of whether the trial court abused its discretion. See Ruffin, 284 Ga. at 57 (2) (b) (i), 65-66 (3). See also Brannen v. State, 262 Ga. App. 719, 720 (586 SE2d 383) (2003) (declining to consider the portion of delay that had already been the subject of a speedy trial appeal on ground that its prejudice to defendant already had been litigated).

(b) As for the second Barker factor, the reason for the delay, the trial court considered the delay in two phases: the delay that took place between Moore’s arrest and the first motion to dismiss, and the delay that occurred subsequent to the ruling on that motion. The court found that the state’s negligence caused the first phase of the delay, a finding that we affirmed in Moore I, 294 Ga. App. at 572-573 (1) (b).

It also found that because there was no evidence that Moore caused the second phase of delay, that delay also weighed against the state. The court found, however, that there was likewise no evidence that the state intentionally caused this delay. Absent evidence that “the state deliberately attempted to delay the trial in order to hamper the defense,” this factor, even though weighing against the state, is relatively benign. (Citation omitted.) Carraway v. State, 263 Ga. App. 151, 154 (2) (587 SE2d 152) (2003). The court properly weighed this factor. Id.

Moore argues that the trial court abused its discretion because it failed to account for its own role in contributing to the delay. But the court did assess the reason for the delay against the state, and Moore does not argue that the trial court intentionally delayed his proceedings so as to show that the trial court abused its discretion by determining that the reasons for delay were benign. For that matter, the trial court did not take into consideration the 21 months of delay caused by Moore’s prior appeals. See Brewington v. State, 288 Ga. 520, 522-523 (3) (b) (i) (705 SE2d 660) (2011) (holding that, where the trial court had denied the speedy trial claim, its error in the defendant’s favor could not have affected its ultimate judgment, allowing the judgment to be affirmed).

Moore also argues that the trial court abused its discretion in determining that the state’s delay was negligent instead of intentional. He points to the fact that the state waited 43 months after his arrest to file the original indictment. In Moore I, however, we found that “there was no evidence that this delay was malicious, but rather it appeared it was simply the neglect of government agents.” Moore I, 294 Ga. App. at 573 (1) (b). He argues that the state’s failure to re-indict him for more than a month after the trial court granted his demurrer to the original indictment reflects an intentional delay. We reject this argument. See Zeger v. State, 306 Ga. App. 474, 478 (3) (702 SE2d 474) (2010) (solicitor-general’s almost-six-month delay in returning accusation was not evidence of intent to hamper defense).

(c) The third Barker factor is the defendant’s assertion of the right to a speedy trial. “It is the defendant’s responsibility to assert the right to trial, and the failure to exercise that right is entitled to strong evidentiary weight against the defendant.” (Citations and punctuation omitted.) Brannen v. State, 274 Ga. 454, 456 (553 SE2d 813) (2001). The remittitur in Moore’s first appeal was sent in December 2008. The trial court granted the special demurrer in September 2009, and Moore was re-indicted on October 28, 2009. He filed his demand on this indictment on December 16, 2009. The trial court found that Moore timely asserted his right to speedy trial after he was re-indicted. The trial court properly weighed this factor.

(d) The trial court weighed the final Barker factor, prejudice to the defense, against Moore. When evaluating the prejudice factor in the speedy trial analysis, courts must consider the “three interests which the speedy trial right is designed to protect: preventing oppressive pretrial incarceration, minimizing anxiety and concern of the defendant, and, most importantly, limiting the possibility that the defense will be impaired.” (Citation omitted.) Nelloms v. State, 274 Ga. 179, 181 (549 SE2d 381) (2001).

The trial court did not make findings or conclusions on the first two interests, pretrial incarceration and anxiety and concern.

If the trial court significantly misapplies the law or clearly errs in a material factual finding, the trial court’s exercise of discretion can be affirmed only if the appellate court can conclude that, had the trial court used the correct facts and legal analysis, it would have had no discretion to reach a different judgment.

(Citation omitted.) State v. Pickett, 288 Ga. 674, 679 (2) (d) (706 SE2d 561) (2011).

We conclude that had the court considered these two interests, it would have had no discretion to reach a judgment different than it did: that Moore did not show that the delay prejudiced his defense. At the hearing on the motion to dismiss, Moore conceded that he did not suffer oppressive pretrial incarceration. As for his anxiety and concern, Moore testified about the strain the charges have placed on his marriage and the fact that six months before the hearing, because of his bond conditions, he had to move from his house because his stepson had moved back in. In Moore I, we observed that Moore did not challenge the trial court’s finding that he had not suffered any unusual anxiety or concern from the delay. Moore I, 294 Ga. App. at 574 (1) (d). And his testimony did not show that he suffered unusual anxiety or concern subsequent to Moore I because of the delay. See Simmons v. State, 304 Ga. App. 39, 43-44 (2) (d) (696 SE2d 75) (2010) (“Anxiety and concern are always present to some extent, and thus absent some unusual showing not present here, they are not likely to be determinative in defendant’s favor.”) (citation and punctuation omitted). Had the trial court considered the factors of oppressive pretrial incarceration and anxiety and concern, it would have had no discretion to reach a different judgment than the judgment it reached, that Moore has not shown prejudice because of those factors.

As for the most important third factor, see Nelloms, 274 Ga. at 181, the trial court found that Moore had shown no impairment of his defense because of the delay. Moore argues his defense was impaired because the state has lost the medical examination and evaluation of the victim, and the investigative case file. He asserts that the medical examination would show that the victim’s hymen was intact after the alleged assault. He also argues that the trial court abused its discretion in requiring him to prove actual prejudice. Instead, he asserts, given the extraordinary length of the delay, prejudice should be presumed.

Although the passage of time is not alone sufficient to sustain a speedy trial claim, greater pretrial delays simultaneously increase the degree of prejudice presumed and decrease the expectation that the defendant can demonstrate tangible prejudice to his or her ability to present a defense.

(Citations omitted.) Williams v. State, 277 Ga. 598, 601 (1) (d) (592 SE2d 848) (2004). However, “the weight given to presumed prejudice may be reduced or even eliminated if the [sjtate can show that the defense has not, in fact, been substantially impaired.” Porter, 288 Ga. at 532 (2) (d).

The delay in this case is substantial, but we have already affirmed in Moore I the trial court’s earlier finding that the loss of the files did not impair Moore’s defense, noting that Moore made no efforts to obtain for himself the medical examination records and that he made no showing that the files would have exonerated him. Moore I, 294 Ga. App. at 575 (1) (d).

Although the “law of the case” rule has been statutorily abolished, any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be. This law of the case rule is not confined to civil cases, but applies also to rulings made by appellate courts in criminal cases.

(Citation omitted.) Bass v. State, 287 Ga. App. 600 (653 SE2d 749) (2007). Our prior ruling that Moore has not shown impairment to his defense due to loss of the files is binding. Moore has alleged no impairment to his defense that has occurred subsequent to our prior holding that the loss of the files did not impair his defense.

(e) “A trial court exercises substantial discretion in applying the Barker balancing test, and its ultimate judgment is reviewed on appeal only for abuse of that discretion.” (Citation omitted.) Porter, 288 Ga. at 533 (2) (e). The trial court properly found that the length of delay was presumptively prejudicial, requiring analysis of the Barker factors, although the trial court did err in failing to consider the length of delay factor separately from its threshold presumptive prejudice analysis. As to the reason for delay, the trial court properly weighed this factor against the state, taking into account the relatively benign culpability. The trial court also properly weighed the factor that Moore promptly asserted his right. Finally, the substantial pretrial delay established a presumption of prejudice, but the trial court correctly determined that Moore failed to substantiate this presumption with any evidence of actual impairment to his defense.

Decided February 17, 2012.

Jay M. Jackson, for appellant.

Tracy- Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

We conclude that, had the trial court properly considered all relevant factors, it would have had no discretion to reach a judgment different than the judgment it reached. Pickett, 288 Ga. at 679 (2) (d). We therefore affirm the trial court’s denial of Moore’s motion to dismiss his indictment.

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


author: Ellington, Chief Judge.

text:
    A12A0470.
    CARSON v. THE STATE.
    (723 SE2d 516)
   Ellington, Chief Judge.

On June 21, 2010, Rashaad Carson entered a nonnegotiated (i.e., “blind”) guilty plea in the Superior Court of Douglas County to armed robbery, OCGA § 16-8-41 (a); three counts of aggravated assault with a deadly weapon, OCGA § 16-5-21 (a) (2); cruelty to children in the first degree, OCGA § 16-5-70 (b); and possession of a firearm during the commission of a felony, OCGA § 16-11-106 (b) (1). The trial court sentenced him to 25 years imprisonment, 13 to serve. On July 12, 2010, Carson filed a motion to withdraw his guilty plea. Following a hearing, the trial court denied the motion. Carson appeals, contending that the court erred in denying his motion because his guilty plea was not entered knowingly and voluntarily and that the court erred in failing to merge two of his convictions. Finding no error, we affirm.

1. Carson contends that he did not voluntarily and knowingly enter his guilty plea, claiming that he did not understand the consequences of the plea because he believed that he could withdraw his plea and proceed to trial if he was not comfortable with the trial court’s sentence.

“[A] guilty plea may be withdrawn anytime before sentencing, [but,] once a sentence has been entered, a guilty plea may only be withdrawn to correct a manifest injustice[.]” (Punctuation and footnote omitted.) Earley v. State, 310 Ga. App. 110, 112 (712 SE2d 565) (2011).

A ruling on a motion to withdraw a guilty plea lies within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of such discretion. When the validity of a guilty plea is challenged, the [S]tate bears the burden of showing affirmatively from the record that the defendant offered his plea knowingly, intelligently, and voluntarily.

(Punctuation and footnote omitted.) Muckle v. State, 283 Ga. App. 395, 397 (641 SE2d 603) (2007).

The transcript of the guilty plea hearing shows that the State met its burden of proving that Carson’s guilty plea was entered knowingly and voluntarily. It shows that Carson was able to read and write, had completed three years of college, and was employed by Delta Airlines at the time of the crimes. The evidence of his participation in the crimes was overwhelming and included his arrest near the scene minutes after the crimes were committed, his possession of the victims’ property when he was arrested, the victims’ identification of him as the perpetrator, and his videotaped confession to the crimes while in jail.

During the plea hearing, the following colloquy took place:

State: We are here today because we were going to start your jury trial; however, it is my understanding that you intend to enter what’s known as a nonnegotiated or a blind plea; do you understand?
Carson: Yes.
State: So that means that your punishment will be left entirely up to the judge; do you understand that?
Carson: Yes.
State: Do you understand, also, that. . . based on the indictment against you, . . . [t]he amount of time in prison that you are looking at total is 105 years on all counts, if the judge were to run them consecutively or back to back; do you understand?
Carson: Yes.

The court later clarified that Carson was, in fact, facing a possible life sentence on the armed robbery count, but it quickly added that it was not going to impose a life sentence. Even so, the court emphasized that, because an armed robbery is considered a serious violent felony, Carson would have to serve whatever term of imprisonment to which he was sentenced on that count without the possibility of parole, and Carson responded that he understood that requirement. The court added, “ [essentially what you are doing today, Mr. Carson, is pleading guilty and throwing yourself [on] the mercy of the Court; do you understand that?” Carson responded, “[y]es, sir.”

The record also shows that Carson’s attorney reviewed a notice and waiver of rights form with Carson and that Carson admitted that he had read the waiver of rights form and had understood it. The prosecutor elicited Carson’s acknowledgment that he was waiving each of the rights to which he was entitled, and the trial court confirmed that Carson understood that, by pleading guilty, he was waiving each of those rights. In addition, Carson stated that he was entering his plea freely and voluntarily, that no one had promised him anything to get him to plead guilty, and that he had not been forced in any way to enter the guilty plea, nor had he been promised anything in exchange for his plea. Carson also stated that he was satisfied with his attorney’s representation of him. Finally, Carson’s attorney asked for leniency based upon Carson’s lack of a criminal history and his cooperation with the police following his arrest, but he added that Carson “understands that he is going to have to go away for a very long time,” and that Carson understood that he was facing a minimum sentence of ten years for the armed robbery.

The trial court then sentenced Carson to 25 years imprisonment, 13 to serve, noting that certain circumstances affected his sentence, including the fact that the crimes were premeditated and that one of the victims was a child. Carson filed a motion to withdraw his guilty plea three weeks later.

In addition to confirming the above facts, the transcript of the hearing on Carson’s motion shows that, in the months before his trial date, Carson rejected two proposed plea offers because he would have had to testify against his co-defendant and he was afraid for his safety in prison if he cooperated with the State. In fact, he adamantly refused to testify against his co-defendant under any circumstances “due to safety issues.” After Carson’s rejection of the plea offers, the State refused to negotiate further and refused to agree to a cap on any sentence that resulted from a guilty plea. At that point, Carson’s trial attorney told him that their only remaining option to avoid trial was to enter a “blind” guilty plea, and he thoroughly explained to Carson that the trial court judge would have “free reign” to decide the sentence, as long as it was within the minimum and maximum sentences for the indicted crimes.

When asked if there was any doubt in his mind that Carson knew what he was doing when he pleaded guilty, Carson’s trial attorney testified that, “I think that [Carson] knew exactly what it was that he was doing. It was just [that there] . . . weren’t a lot of options that he was happy with, so it was just more or less choosing [either to go to trial or to enter a blind guilty plea]. ... I mean, he didn’t like either one of [those options].” As for Carson, he specifically admitted during the motion hearing that he knew that armed robbery carried a mandatory minimum sentence of ten years imprisonment before he pleaded guilty. Even so, he said that he was surprised that he would have to serve 13 years given his lack of criminal history, adding that he thought 13 years was a “little bit harsh.” Yet, even after insisting that he wanted to withdraw his guilty plea, and even after the State refused to make any further plea offers, Carson still seemed taken aback when he realized that, if the court granted his motion, his only remaining viable option was to take his chances at trial. Thus, as the trial court found, Carson “did not argue that there was any manifest injustice in this [sentence]. Rather, he essentially argue[d] that he wants a lighter sentence. That is not a ground for the court to grant a motion to withdraw a guilty plea.”

Given the record before us, we conclude that the State met its burden of showing that Carson understood the constitutional rights he was giving up by pleading guilty; that Carson understood that, because his plea was nonnegotiated, the trial court would sentence him to at least ten years imprisonment and could sentence him to a maximum sentence of life in prison; and that Carson knowingly and voluntarily entered his guilty plea in order to avoid a trial on the indicted charges. Accordingly, we find that the trial court did not abuse its discretion in denying Carson’s motion to withdraw his guilty plea. Earley v. State, 310 Ga. App. at 114 (2) (b).

2. Carson also asserts that the trial court erred in failing to merge Count 2 of his indictment, aggravated assault, with Count 1, armed robbery of the same victim. We disagree.

As shown in Division 1, supra, Carson knowingly and voluntarily pleaded guilty to each of the crimes for which he was indicted. As a consequence, he has waived all defenses except that the indictment charged no crime, including the issue of whether the offenses merged as a matter of law or fact. Regent v. State, 306 Ga. App. 616, 618 (2) (703 SE2d 81) (2010); Sanders v. State, 282 Ga. App. 834, 835-836 (1) (a) (640 SE2d 353) (2006).

Decided February 17, 2012.

Drummond & Swindle, Jason W. Swindle, for appellant.

David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

When a criminal defendant pleads guilty to counts of an indictment alleging multiple criminal acts, and willingly and knowingly accepts the specified sentences as to such charged counts, the defendant waives any claim that there was in fact only one act and that the resulting sentences are void on double jeopardy grounds.

(Citation and punctuation omitted.) Regent v. State, 306 Ga. App. at 618 (2). Here, Carson chose to admit that he committed the acts so he could avoid a trial on the question of his guilt or innocence, and, his having accepted the benefits of such a bargain, it would be contrary to public policy and the ends of justice to allow him to avoid the consequences of his agreement. Id.; see also Lord v. State, 303 Ga. App. 378, 379 (693 SE2d 533) (2010) (accord); Sanders v. State, 282 Ga. App. at 835-836 (1) (a) (accord). “The fact that [Carson’s] plea was non-negotiated does not alter the conclusion that he waived his right to argue that the counts should have merged.” (Citation omitted.) Regent v. State, 306 Ga. App. at 618 (2).

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

       In his appellate brief, Carson admits that his trial counsel was not ineffective in representing him and that he “simply misunderstood what would be involved in a blind plea.”

       Carson’s reliance on Hall v. State, 313 Ga. App. 66 (720 SE2d 181) (2011), is misplaced, as the defendant in that case was sentenced following a jury trial, not a guilty plea, so there was no waiver of his merger claim.


author: Andrews, Judge.

text:
    A11A2159, A11A2164.
    A11A2160.
    A11A2161, A11A2163.
    A11A2162.
    ALLMOND et al. v. YOUNG et al. (two cases). KAM v. YOUNG et al. STRANSTONE, INC. v. YOUNG et al. (two cases). ALLMOND et al. v. YOUNG et al.
    (723 SE2d 691)
   Andrews, Judge.

Each of the appellants in the above-styled cases (collectively “plaintiffs”) entered into agreements with Turners Cove Development to buy lots in Turners Cove subdivision and to have a townhouse built on those lots. The sales agreements were signed in November 2000, and each plaintiff paid $5,000 in earnest money. The agreements provided that “the closing [of this sale] shall take place on or before January 1, 2003.” The closings never took place. According to the complaint, the lots were sold in June 2005 to a third party, and plaintiffs were never refunded their $5,000 earnest money.

On July 22, 2010, plaintiffs sued Tracy Young and Titlemax of Georgia, alleging claims for, among others, breach of contract and fraud. They filed an amended complaint alleging violations of the Interstate Land Sales Full Disclosure Act (ILSA). Young filed a motion to dismiss, raising numerous grounds, among which was that the applicable statutes of limitation had expired. The trial court granted the motion. Plaintiffs appeal only from the dismissal of their claims for fraud and violations under ILSA.

1. In their first enumeration of error, plaintiffs argue that the trial court erred in holding that their fraud claim was barred by the statute of limitation. Plaintiffs contend that the statute was tolled because they did not discover the fraud until 2007. They argue that it was not until 2007 that they learned the properties had been sold to another buyer.

The statute of limitation on a fraud claim is four years. OCGA § 9-3-31. OCGA § 9-3-96 provides that: “If the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiffs discovery of the fraud.” “Where actual fraud is the gravamen of the action, the statute of limitation is tolled until the fraud is discovered or by reasonable diligence should have been discovered. . . . The plaintiff has the burden of showing the existence of facts that would toll the statute of limitation.” Falanga v. Kirschner & Venker, EC., 286 Ga. App. 92, 94 (648 SE2d 690) (2007).

The trial court held that if the fraud claim had to do with Young’s failure to close by the agreed upon closing date, then the statute began to run on January 3, 2003. If the fraud alleged was the selling of the lots to a third party, then the statute began to run in June 2005. Therefore, the four-year statute of limitation would have run, at the latest, on June 19, 2009.

Plaintiffs argue that Young’s deceit in commingling the plaintiffs’ earnest money with other funds and in selling the properties to another buyer without informing them, prevented their discovering the fraud. But “[t]he fraud which tolls a statute of limitation must be such actual fraud as could not have been discovered by the exercise of ordinary diligence.” Weinstock v. Novare Group, 309 Ga. App. 351, 361 (710 SE2d 150) (2011). This Court has held that mere silence or a failure to disclose, even where there existed a fiduciary relationship, will not toll the statute of limitation for fraud where “the information was open and available.” See Falanga, supra at 96.

Both below and on appeal, plaintiffs had the burden of coming forward with some evidence that fraud on the part of Young prevented or deterred them from bringing this action so as to toll the limitation period. In addition, they must show that they exercised ordinary diligence in attempting to discover the fraud. They have not done so. As the trial court pointed out, plaintiffs were on notice when the closing did not take place in 2003, and certainly when the closing did not occur by 2006, that something was wrong. Instead, they state that they discovered the lots had been sold in or around 2007, four years after the closing of the sales were to take place. Most importantly, plaintiffs raise no argument that Young took any specific action to prevent them from discovering the sales to another party, especially in light of the fact that the records of the sales were readily and publicly available. See, e.g., Anthony v. American Gen. Financial Svcs., 287 Ga. 448, 461 (697 SE2d 166) (2010) (plaintiffs were not prevented from subsequently discovering the impropriety of these actions by simple reference to OCGA § 45-17-11 of the readily-available Georgia Code). Accordingly, plaintiffs have not carried their burden of coming forward with some evidence that they were prevented or deterred from bringing their claims within the statute of limitation.

2. Next, plaintiffs claim that the trial court erred in ruling that their claims under the ILSA were barred by the three-year statute of limitation of 15 USC § 1711. That Code section provides that no action shall be maintained for violations under this title “more than three years after discovery of the violation or after discovery should have been made by the exercise of reasonable diligence.”

Decided February 1, 2012

Reconsiderations denied February 21, 2012

Savage, Turner, Pinson & Karsman, Brent J. Savage, Kathryn H. Pinckney, for appellants.

Plaintiffs’ claims under ILSA, in addition to Young’s failure to refund the earnest money, were, among others, that Young was required to provide a property report to prospective purchasers, to record a Statement of Record with the appropriate government agency, to give purchasers a properly recorded plat and, if no such plat existed, disclose this to the purchaser.

The record shows that the ILSA claim was filed on January 5, 2011. Even assuming a relation back to the original complaint in July 2010, the trial court correctly held that when the January 3, 2003 closing did not occur, and certainly by the time of the anticipated construction in 2005 or 2006, appellants were on notice and should have discovered any alleged violations of ILSA.

Plaintiffs argue that the statute of limitation should have been tolled due to Young’s fraudulent concealment of the violations.

Fraud that will toll the statute of limitation requires: (1) actual fraud involving moral turpitude on the part of the defendant; (2) the fraud must conceal the cause of action from the plaintiff, thereby debarring or deterring the knowing of the cause of action; and (3) the plaintiff must have exercised reasonable diligence to discover the cause of action, notwithstanding the failure to discover within the statute of limitation.

Miller v. Kitchens, 251 Ga. App. 225, 226 (553 SE2d 300) (2001). Once the defendant has shown the running of the statute of limitation, the burden shifts to the plaintiff to present some evidence that the statute has been tolled. Id.

Plaintiffs have not shown that Young made any attempt to debar or deter them from discovering the above alleged violations; neither have they shown that they made any attempt, in the exercise of reasonable diligence, to discover these alleged violations. Their argument on appeal consists solely of a re-statement of the contentions in the complaint and fails to even discuss the three factors required to show that the statute of limitation should have been tolled. See Miller, supra. Accordingly, there is no merit to this enumeration, and the trial court properly granted Young’s motion to dismiss this claim as barred by the three-year statute of limitation.

Judgments affirmed.

Phipps, P. J., and McFadden, J., concur.

Jones, Osteen & Jones, Billy N Jones, Carl R. Varnedoe, Bon-durant, Mixson & Elmore, Michael B. Terry, Alison B. Prout, for appellees.

       Appellants alleged in their complaints that Young had “executive control” of both Turners Cove Development and Titlemax, and that he commingled funds between the two entities.


author: MILLER, Judge.

text:
    A11A2269.
    KNIGHT v. CITY OF HOGANSVILLE et al.
    (723 SE2d 442)
   MILLER, Judge.

Christi Knight fell and was injured when her right foot became caught in an uncapped sewer clean out that was owned and maintained by the City of Hogansville (the “City”). Knight sued the City, asserting various claims of negligence for failure to maintain and/or inspect the sewer clean out. The City moved for summary judgment, arguing that Knight’s claims were barred by the doctrine of sovereign immunity, that it had no duty to maintain the area, and that it had no notice of the alleged defect. The trial court granted the City’s motion. Knight appeals from that ruling, contending that the trial court erred in concluding that the City had no notice of the hazard. As Knight has failed to include key portions of the record required for appellate review of this issue, we must affirm.

On appeal, the burden is on the appealing party to show error affirmatively by the record. When that burden is not met, the judgment in issue is assumed to be correct and must be affirmed. When an appellant fails to include evidence considered by the court on summary judgment, that omission is generally fatal.

(Citations and footnotes omitted.) Ligon v. Lumpkin County, 261 Ga. App. 435 (582 SE2d 504) (2003); see also Blazi v. Rich, 306 Ga. App. 529, 530-531 (2) (702 SE2d 768) (2010) (“Our review is impossible if the appellant omits the very evidence at the heart of our inquiry.”) (citations and punctuation omitted).

In her amended notice of appeal, Knight stated that the parties would submit the record and index to this Court. Knight failed, however, to include a copy of her deposition, which the trial court relied upon as evidence supporting its ruling. In the absence of Knight’s deposition transcript, we must assume that the trial court’s rulings were correct and affirm. Ligon, supra, 261 Ga. App. at 435; Blazi, supra, 306 Ga. App. at 531 (2).

Judgment affirmed.

Ellington, C. J., and Doyle, P. J., concur.

Decided January 24, 2012

Reconsideration denied February 21, 2012

Graylin C. Ward, for appellant.

Whalen & Westbury, Andrew J. Whalen III, Leigh C. Hancher, for appellee.


text:
    A11A1501.
    BREWER v. WELLSTAR HEALTH SYSTEM et al.
    (723 SE2d 526)
   Andrews, Judge.

After Joseph E Brewer incurred a compensable back injury while employed by WellStar Health System, Brewer and WellStar entered into a stipulated settlement agreement approved by and made the award of the State Board of Workers’ Compensation pursuant to OCGA § 34-9-15 (a). At issue in this appeal is whether WellStar was required under OCGA § 34-9-221 (f) to pay a late payment penalty of 20% of the benefits payable under the award for failure to pay the benefits within 20 days after they became due. Brewer appeals from the order of the Superior Court, affirming the decision of the Board’s Appellate Division, that found the Board properly exercised discretion pursuant to OCGA § 34-9-15 (b) not to assess a late payment penalty. For the following reasons, we find the Board had no such discretion and reverse.

At a hearing before an Administrative Law Judge (ALJ) to determine whether WellStar was required to pay the 20% penalty, facts stipulated to by the parties and found by the ALJ showed the following: On July 7, 2009, the Board approved the stipulated settlement agreement; entered an award conforming to the terms of the agreement; and used its automated e-mail system to send notice of the approval and award to all the parties. The Board was aware prior to July 7, 2009, that some parties were not receiving notice of approval of agreements sent by its automated e-mail system. In this case, the automated e-mail notice was not received by WellStar (the employer/self insurer), or by PMA Management Corporation (Well-Star’s servicing agent), or by WellStar’s counsel. There was no discussion between the Board or any of the parties regarding Board approval of the agreement until August 4, 2009, at which time counsel for Brewer requested that the 20% late payment penalty be imposed on WellStar. After WellStar received notification on August 4, 2009, that the Board had approved the agreement and issued an award, WellStar sent settlement checks paying the benefits due under the agreement and award, and payment was received by Brewer within one week of August 4, 2009.

The settlement agreement became a binding award when it was approved by the board on July 7, 2009. Northeast Ga. Health System, Inc. v. Danner, 260 Ga. App. 504, 505 (580 SE2d 293) (2003); OCGA § 34-9-15 (a). Under OCGA § 34-9-221 (f), “[i]f income benefits payable under the terms of an award are not paid within 20 days after becoming due, there shall be added to the accrued income benefits an amount equal to 20 percent thereof. ...” Moreover, “[penalties accrue automatically by operation of [OCGA § 34-9-221 (f)] upon failure of the employer to pay in a timely fashion.” Ayers v. Rembert, 241 Ga. App. 698, 700 (527 SE2d 290) (1999). Applying these holdings to the stipulated facts, the ALJ ruled: (1) that the penalty automatically accrued under the provisions of OCGA § 34-9-221 (f) when WellStar failed to pay the benefits within the 20-day period; (2) that nothing in the Workers’ Compensation Act (the Act) (OCGA § 34-9-1 et seq.) made WellStar’s compliance with the statutory requirement to timely pay the award contingent on WellStar being notified that the board had approved the settlement agreement and issued an award; and (3) that WellStar had the responsibility to inform itself that the board had issued an award. Accordingly, the ALJ issued an award requiring WellStar to pay the 20% late payment penalty pursuant to OCGA § 34-9-221 (f).

On appeal from the ALJ, the Appellate Division of the Board, applying the same undisputed facts, reversed the ALJ. The Appellate Division found as a matter of law that the Board had discretion under OCGA § 34-9-15 (b) to determine whether or not to assess a late payment penalty under OCGA § 34-9-221 (f), and that, under the circumstances of this case, no late penalty should be assessed. Alternatively, the Appellate Division found that, because it was undisputed that WellStar did not receive notice that the agreement was approved and an award was issued on July 7, 2009, benefits payable under the award were not “due” on July 7, 2009, and WellStar could not be penalized under OCGA § 34-9-221 (f) for failure to pay within 20 days of that date.

On appeal from the Appellate Division, the Superior Court affirmed on the basis that the Appellate Division correctly found that the Board had discretion under OCGA § 34-9-15 (b) as to whether a late penalty should be assessed and that no penalty should be assessed on the present facts.

First, we find that benefits payable under the award became due on July 7, 2009, the date the agreement was approved and the award pursuant thereto was issued. Second, we disagree with the conclusion of the Appellate Division and the Superior Court that the Board had discretion under OCGA § 34-9-15 (b) as to whether to assess a late penalty under OCGA § 34-9-221 (f). Under OCGA § 34-9-15 (b):

Decided February 21, 2012

Smith, Wallis & Scott, Kenneth A. Smith, for appellant.

The board shall be authorized to approve a stipulated settlement between the parties which concludes that there is no liability under this chapter and to retain jurisdiction to enforce any agreement which resolves, in whole or in part, a claim filed with the board. If payments required under such an agreement are not made within 20 days, the board may assess a penalty of 20 percent in the same manner as provided in Code Section 34-9-221.

Subsection (b) was added by amendment to OCGA § 34-9-15 in July 2000 “to authorize the board to consider and approve ‘no-liability’ stipulations in settlement agreements.” Ridley v. Monroe, 256 Ga. App. 686, 687 (569 SE2d 561) (2002). It authorizes the Board to retain jurisdiction to enforce any agreement which, for consideration, settles a dispute while concluding there was no liability under the Act. Id. at 687-688. Under subsection (b), if payments required under a no-liability stipulated settlement are not made, “the board may assess a penalty of 20 percent in the same manner as provided in Code Section 34-9-221.” Contrary to the conclusion reached by the Appellate Division and the Superior Court, we find that OCGA § 34-9-15 (b) applies solely to no-liability stipulated settlements and does not give the Board discretion to determine whether to assess the penalty required under OCGA § 34-9-221 (f) for failure to timely pay an award issued on an approved liability stipulated settlement where an injury compensable under the Act has been established. Because Brewer and WellStar entered into a liability stipulated settlement agreement under OCGA § 34-9-15 (a), which recognized a compensable injury, the provisions of OCGA § 34-9-15 (b) did not apply.

Judgment reversed.

Phipps, P. J., and McFadden, J., concur.

Saveli & Williams, Gregg M. Porter, Lindsey M. Pence, for appellees.

       We note that the Board and the Superior Court rejected WellStar’s claim that the statutory penalty in OCGA § 34-9-221 (f), as applied in these proceedings, violated constitutional due process because WellStar received no notice the award had issued and had no opportunity to pay the awarded benefits before the 20-day period expired. We express no opinion on whether assessing the statutory penalty would be an unconstitutional violation of due process. When the constitutionality of a statute, as applied, is raised and ruled upon, it presents an issue within the exclusive appellate jurisdiction of the Supreme Court. East Georgia Land & Development Co. v. Baker, 286 Ga. 551, 552 (690 SE2d 145) (2010).


author: PHIPPS, Presiding Judge.

text:
    A11A1595.
    SHERMAN v. DEVELOPMENT AUTHORITY OF FULTON COUNTY et al.
    (723 SE2d 528)
   PHIPPS, Presiding Judge.

John S. Sherman appeals from a Fulton County Superior Court judgment that validated and confirmed certain revenue bonds and bond security. For reasons that follow, we vacate the judgment and remand the case with direction.

In accordance with the Revenue Bond Law, the State of Georgia initiated a bond validation proceeding in December 2010 by filing a “Petition and Complaint,” naming as defendants the Development Authority of Fulton County (DAFC) and 1138 Peachtree Land Holdings, LLC. Said pleading sought a judgment approving DAFC’s issuance of certain proposed taxable revenue bonds and validating and confirming the bonds and various bond security as required by the Development Authorities Law. The bonds were intended to finance a multi-use facility that would be developed by 1138 Peach-tree Land Holdings.

Sherman, as a resident of Fulton County, intervened in the proceedings and filed a pleading captioned “Objections to Bond Validation, Denial of Bond Validation Petition Allegations and Plea in Abatement.” Sherman alleged numerous grounds for denying the State’s Petition and Complaint, and he requested that the superior court set forth in its judgment findings of fact and conclusions of law pursuant to OCGA § 9-11-52 (a).

Thereafter, Sherman’s counsel participated in the bond validation hearing, cross-examining DAFC’s witness, and opposing the State’s Petition and Complaint. At the end of the hearing, the court announced that it was rejecting Sherman’s grounds. The court entered judgment validating and confirming the bonds and bond security.

In the judgment, the superior court recounted that the “action ha[d] come on for hearing before the Court sitting without a jury” and that the court had “considered the Petition and Complaint, [and] the verified answers of the defendants, [DAFC] and 1138 Peachtree Land Holdings, LLC.” Notably, the judgment made no mention of Sherman, and it failed to set forth findings of fact and conclusions of law with respect to various grounds pursued by Sherman.

Among his contentions on appeal, Sherman takes issue with the absence of findings of fact and conclusions of law with respect to several grounds he asserted. Under OCGA § 9-11-52 (a), “[a] trial court presiding over a bench trial ... in a court of record is statutorily required to make findings of fact and conclusions of law upon the request of any party made prior to such ruling.” Here, as DAFC acknowledges, prior to the judgment, Sherman requested findings of fact and conclusions of law. Consequently, the judgment is vacated and the case remanded so that the superior court may enter a judgment setting forth requisite findings of fact and conclusions of law that will allow meaningful appellate review of the trial court’s rejection of Sherman’s arguments.

Decided February 21, 2012.

John F. Woodham, for appellant.

Paul L. Howard, Jr., District Attorney, Ichter Thomas, Cary Ichter, S. Renee Huskey, Schiff Hardin, Sandra Z. Zayac, Lanna R. Hill, for appellee.

Alternatively, the superior court may upon remand dismiss the action if it determines that re-entry of judgment (with mandated findings of fact and conclusions of law) would serve no purpose. This is because: (a) DAFC has briefed this court that the bonds have not been issued, that it has no intent to issue the bonds authorized by the trial court’s judgment, and that the case should be remanded so that it (DAFC) may “petition the Fulton County Superior Court for an order withdrawing the bond validation Order” as moot; (b) the State of Georgia represents to this court that it is “merely a nominal party to the bond proceeding” and thus “to the extent it has an interest in the issues on appeal, those interests have been preserved by DAFC’s filings”; (c) 1138 Peachtree Land Holdings has briefed this court that it is no longer operating and that the development of the facility that is the subject of the bond validation proceeding was never commenced; (d) Sherman, concerned that DAFC seeks a remand “to get a ‘do over’ at the trial level because of. . . legal infirmities associated with the final order,” asserts that any remand should result in a dismissal “with prejudice”; and (e) citing Sherman’s concern, DAFC has briefed this court: “[Sherman’s] Response . . . sought only to insure that any order remanding the case require DAFC to seek withdrawal with prejudice, a condition that is perfectly consistent with DAFC’s intent not to issue bonds for this project.”

Given the foregoing, we remand this case for proceedings not inconsistent with this opinion.

Judgment vacated and case remanded with direction.

Andrews and McFadden, JJ., concur.

       OCGA § 36-82-60 et seq.

       OCGA § 36-62-1 et seq.

       See OCGA § 36-82-77 (“Any citizen of this state who is a resident of the governmental body which desires to issue such bonds may become a party to the proceedings at or before the time set for the hearing and any party thereto who is dissatisfied with the judgment of the court confirming and validating the issuance of the bonds or refusing to confirm and validate the issuance of the bonds and the security therefor may appeal from the judgment under the procedure provided by law in cases of injunction.”); Copeland v. State of Ga., 268 Ga. 375, n. 2 (490 SE2d 68) (1997) (OCGA § 36-82-77 permits intervention by a resident of the governmental body which desires to issue such bonds and allows an intervenor to appeal from any judgment rendered in the validation proceeding). The parties have made no argument that Sherman was not entitled to participate in the proceeding as an intervenor.

       See generally In the Interest of D. L. G., 212 Ga. App. 353 (1) (442 SE2d 11) (1994) (OCGA § 9-11-52 (a) requires trial judge to ascertain facts and to state not only end result of that inquiry, but the process by which it was reached; mere recitation of trial events does not satisfy requirements of Code provision; bare statement of what court considered in reaching its conclusion is not a recitation of how those facts give support to or what constitutes the separate conclusions); Pruitt v. First Nat. Bank of Habersham County, 142 Ga. App. 100-101 (1) (235 SE2d 617) (1977) (OCGA § 9-11-52 (a) requires more than a paraphrase of statutory requirements and an ultimate conclusion; thus, when trial judge enters order with merely a dry recitation that certain legal requirements have been met, adequate appellate review of trial judge’s decision making process is effectively prevented), superseded by statute as stated in Jerome Road, LLC v. First Citizens Bank and Trust Co., 312 Ga. App. 583, 584-585 (718 SE2d 913) (2011).

       See Grantham v. Grantham, 269 Ga. 413, 414 (1) (499 SE2d 67) (1998) (noting that findings of fact and conclusions of law enable the parties to specify the errors the trial court purportedly made, as well as enable the appellate court to review the judgment adequately and promptly).

       That Code provision states, in pertinent part, that “in all nonjury trials in courts of record, the court shall upon request of any party made prior to such ruling, find the facts specifically and shall state separately its conclusions of law.” See Hunter v. Hunter, 289 Ga. 9, 11-12 (5) (709 SE2d 263) (2011) (further construing OCGA § 9-11-52 (c), as providing trial court with discretion, but not imposing a mandate, to grant a motion for findings of fact after entry of judgment); Payson v. Payson, 274 Ga. 231, 234-236 (2) (552 SE2d 839) (2001) (explaining interplay between subsections (a) and (c) of OCGA § 9-11-52); Jerome Road, LLC, supra (same).

        Hunter, supra at 11 (5) (citation and punctuation omitted). See OCGA § 36-82-77 (a) (judge of the superior court shall hear and determine all questions of law and of fact in bond validation case and shall render judgment thereof); Steadham v. State of Ga., 224 Ga. 78, 80-81 (2) (159 SE2d 397) (1968) (noting that a bond validation proceeding is not one of the class of cases in which jury trials have ever existed as a matter of right).

       See Grantham, supra (remanding case with direction that the trial court enter findings of fact and conclusions of law which will allow meaningful appellate review of its decision); Sanders v. Stone, 255 Ga. 704, 706 (342 SE2d 318) (1986) (vacating judgment and remanding case for trial court to enter findings and conclusions of law, where an intelligent review of the merits of the appeal was precluded by lack thereof); In the Interest of D. L. G., supra. See generally Marsh v. Way, 255 Ga. 284, 285 (2) (336 SE2d 795) (1985) (when an appellate court vacates a trial court’s judgment and remands for findings of fact and conclusions of law on a specific issue, this does not permit the trial court to reopen the case for other purposes; instead, the scope of the trial court’s authority to act on remand is limited to the specific purpose of making the applicable findings and conclusions).

       See, however, In the Interest of I. S., 278 Ga. 859, 862 (607 SE2d 546) (2005) (a matter does not become moot if adverse collateral consequences continue to plague affected party).

       See, however, Marsh, supra.


text:
    A11A1625.
    MURRAY v. THE STATE.
    (723 SE2d 531)
   PHIPPS, Presiding Judge.

At issue in this appeal is whether Anthony Murray had the right to withdraw his guilty plea in its entirety before he was resentenced, after the sentences entered on some (but not all) of the convictions were found to be void. Finding no error in the trial court’s denial of the motion in this case, we affirm.

Represented by counsel, Murray entered a negotiated guilty plea to two counts of armed robbery, two counts of aggravated assault, and one count of robbery. The court imposed twenty-year sentences for each of the armed robbery convictions and a fifteen-year sentence for the robbery conviction (each to run concurrently), and five-year sentences for each of the aggravated assault convictions (to run concurrently with each other and consecutively to the armed robbery sentences). Murray moved to withdraw his guilty plea as to the armed robbery and aggravated assault counts. The motion was denied and he appealed.

In that appeal, this court concluded that the aggravated assault convictions merged into the armed robbery convictions as a matter of fact and, consequently, the aggravated assault convictions and the sentences entered for them had to be vacated. We remanded the case to the trial court for resentencing, but we affirmed the judgment in all other respects.

Then, on March 16, 2011, before the trial court resentenced him, Murray filed another motion to withdraw his guilty plea. This time, he referenced the case numbers for all five counts, asserting that a defendant should be permitted to withdraw his guilty plea as to all counts where the sentences imposed for some of the counts are void.

On March 17, 2011, before ruling on Murray’s motion to withdraw the guilty plea, the trial court entered an order adopting the judgment of this court, merging the aggravated assault convictions into the armed robbery convictions and vacating the sentences on the aggravated assault convictions. The order also provided that the judgments and sentences on the armed robbery convictions stood as originally pronounced.

On March 22, 2011, noting that the sentences on the armed robbery convictions were not void and holding that Murray thus did not have the right to withdraw the guilty plea to those counts, the trial court denied the motion to withdraw the guilty plea. Murray appeals from that ruling.

Murray is correct that where a sentence is void and the defendant has filed a motion to withdraw the guilty plea prior to resentencing, the defendant may withdraw his plea as a matter of right until he is properly sentenced, even if the motion was filed outside the term of court in which the sentence was imposed.

Contrary to Murray’s argument, Kaiser v. State does not require a result in his favor. In Kaiser, we had vacated the defendant’s original sentence in its entirety and remanded the case to the trial court for resentencing. That did not happen in Murray’s case, where we had vacated his convictions and sentences entered for them on only two of the five counts to which he pled guilty. Because there was no basis for finding that the sentences entered on the armed robbery and robbery convictions in this case were void, and the trial court imposed separate and distinct sentences for each of the convictions, the trial court did not err in denying Murray’s motion to withdraw his guilty plea as to those counts.

Decided February 21, 2012.

Anthony Murray, pro se.

S. Hayward Altman, District Attorney, for appellee.

We note that in its order denying Murray’s motion to withdraw the guilty plea, the trial court did not expressly address the robbery count. But, as with the armed robbery sentences, the robbery sentence was not void and the trial court had imposed a separate and distinct sentence for that conviction; thus, Murray had no right to withdraw the guilty plea based on the robbery sentence.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       The armed robbery and aggravated assault counts were brought in Toombs County, and the robbery count was brought in Emanuel County. Murray entered his negotiated guilty plea to all counts during the Toombs County plea hearing. See Murray v. State, 307 Ga. App. 621, 622 (705 SE2d 726) (2011) (reciting facts and citing authority for the trial court accepting the guilty plea and entering sentences in cases for both counties).

       Id. at 621.

       Id. at 627-628 (3). See Williams v. State, 287 Ga. 192, 193 (695 SE2d 244) (2010) (an accused may not be convicted of more than one crime if one crime is included in the other).

        Murray, supra at 621-629.

       See Kaiser v. State, 285 Ga. App. 63 (646 SE2d 84) (2007) (holding that where a sentence is void, a defendant may withdraw his guilty plea as of right until he is properly sentenced).

       The trial court noted in the order denying the March 2011 motion to withdraw the guilty plea that it had signed the resentencing order prior to receiving or having any knowledge of the new motion to withdraw the guilty plea.

       The trial court did not specifically discuss the robbery conviction in its order denying Murray’s motion to withdraw the guilty plea.

       Id. at 68-69 (1). OCGA § 17-7-93 (b), in pertinent part, permits a defendant to withdraw his plea as a matter of right any time before judgment is pronounced.

       Supra.

       Id. at 64.

        Murray, supra at 628 (3).

       See Rooney v. State, 287 Ga. 1, 2 (2) (690 SE2d 804) (2010) (“A sentence is void if the court imposes punishment that the law does not allow.”) (citation and punctuation omitted); Jones v. State, 307 Ga. App. 714, 715 (706 SE2d 105) (2011); McKenzie v. State, 302 Ga. App. 538, 539, n. 1 (691 SE2d 352) (2010) (a sentence that imposes punishment on two separate convictions that should have been merged is void); OCGA §§ 16-8-41 (b) (pertinently providing that a person convicted of armed robbery shall be punished by death, life imprisonment, or imprisonment for not less than ten nor more than twenty years); 16-8-40 (c) (pertinently providing that a person convicted of robbery against a person who is 65 years of age or older shall be punished by imprisonment for not less than five nor more than twenty years).

       See Diaz v. State, 279 Ga. App. 134 (630 SE2d 618) (2006) (defendant had no right to withdraw his guilty plea to a rape charge prior to resentencing where he had entered a negotiated plea of guilty on rape and aggravated child molestation charges, and the sentence on the aggravated child molestation conviction was later found to be void because it did not comply with statutory sentencing guidelines; the trial court had imposed separate and distinct sentences for each of the convictions, and there was no basis for finding that the sentence on the rape conviction was void). Compare Clue v. State, 273 Ga. App. 672, 674 (615 SE2d 800) (2005) (trial court abused its discretion in permitting defendant to withdraw his guilty plea as to only four of six counts when trial counsel was proven to be ineffective as to those four counts; counsel’s ineffectiveness as to some of the counts had undermined the voluntariness and validity of the plea as to the remaining counts, particularly where it was conceded that the defendant would not have entered a guilty plea to the more serious counts absent counsel’s deficiencies, and withdrawal of the plea in its entirety was necessary to avoid a manifest injustice).

       See Diaz, supra.


author: PHIPPS, Presiding Judge. MCFADDEN, Judge,

text:
    A11A1792.
    BRINA BAY HOLDINGS, LLC v. ECHOLS et al.
    (723 SE2d 533)
   PHIPPS, Presiding Judge.

Brina Bay Holdings, LLC (“Brina Bay”) filed a money rule petition against Keith Echols (“Echols”), in his capacity as tax commissioner and ex-officio sheriff of Hall County, and Travelers Casualty and Surety Company of America (“Travelers”), as the surety of Echols’s bond, to recover excess funds from a tax sale and interest thereon. The trial court granted summary judgment to Echols and Travelers and denied summary judgment to Brina Bay. Brina Bay appeals the trial court’s grant of summary judgment to Echols and Travelers. For the reasons that follow, we affirm.

On appeal from the grant of summary judgment this [cjourt conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

The underlying material facts are not in dispute. On December 1, 2009, Echols sold certain real property in a tax sale to satisfy outstanding ad valorem property tax liens against the property. The tax sale of the property generated more proceeds than necessary to satisfy the tax liens. On that same day, Echols mailed notice of the excess funds to the record owner of the property and to the record holders of liens affecting the property which, at that time, did not include Brina Bay. The record owner of the property submitted to Echols a claim, dated February 26, 2010, for the excess tax sale funds. No one else submitted a claim. One week from that date (on March 5, 2010), Echols issued a check for the excess tax sale funds to the record owner of the property.

On May 6, 2010, Brina Bay became a holder of a lien against the subject property and a creditor, after acquiring two transfers and assignments of liens involving the property. On May 11, 2010, “as the holder of a lien against the subject property and as a creditor pursuant to OCGA § 48-4-43,” Brina Bay paid money to redeem the property, and a quitclaim deed of redemption (to the record owner of the property) was recorded in the county’s deed books. Thereafter, by letters dated May 18, 2010, Brina Bay submitted claims to Echols pursuant to OCGA § 15-13-3 for the excess tax sale funds. When Echols denied Brina Bay’s claims, the case at bar was filed.

After a hearing, the trial court found that Echols had fulfilled his obligation to notify those with an interest in the property of the excess tax sale funds, and that only the record owner of the property had made a claim for the funds. The court found that Brina Bay had no interest in the property at the time of the tax sale or at the time notice was sent, and that when Brina Bay thereafter made a claim, Echols no longer had funds to disburse. The court added that since the excess funds already had been disbursed at the time Brina Bay acquired liens on the property, Brina Bay “only took the rights to the property and to collect on the lien, not to the excess funds” from the tax sale.

1. Brina Bay contends that “[b]y virtue of its redemption of the Property, Brina Bay acquired a first-priority lien against the Property and a first-priority claim to the excess tax sale proceeds pursuant to OCGA § 48-4-43.” Brina Bay relies upon United Capital Financial of Atlanta v. American Investment Assoc. and Wester v. United Capital Financial of Atlanta.

Brina Bay further asserts that despite the fact that it submitted a demand for the excess proceeds on May 18, 2010 (after the funds had already been paid out), Echols should not have paid the excess tax sale funds to the record owner of the property because, at the time, there were at least three unsatisfied liens against the record owner of the property and the property itself “that represented higher-priority claims to the excess proceeds than any claim” held by the record owner of the property. Thus, Brina Bay contends, Echols must pay it (Brina Bay) the full amount of the excess funds. Brina Bay does not point to any violation of law by Echols, but asserts that Echols was authorized to interplead the excess funds, but did not.

OCGA § 48-4-5 (a) governs the payment of excess funds after a tax sale, and it pertinently provides:

If there are any excess funds after paying taxes, costs, and all expenses of a sale made by the tax commissioner, tax collector, or sheriff, or other officer holding excess funds, the officer selling the property shall give written notice of such excess funds to the record owner of the property at the time of the tax sale and to the record owner of each security deed affecting the property and to all other parties having any recorded equity interest or claim in such property at the time of the tax sale.

OCGA § 48-4-5 (b) authorizes, but does not require, the tax commissioner, sheriff, or other officer to file an interpleader action for the payment of the amount of such excess tax sale funds: “The tax commissioner, tax collector, sheriff, or other officer may file, when deemed necessary, an interpleader action in superior court for the payment of the amount of such excess funds.”

It is uncontroverted that at the time of the tax sale, at the time Echols notified the record owner of the property and record lien holders of the excess tax sale funds, and at the time Echols paid the excess tax sale funds to the record owner of the property, Brina Bay had no recorded lien or interest in the property. Echols acted in accordance with his statutory obligation to give “notice of such excess funds to the record owner of the property at the time of the tax sale and to the record owner of each security deed affecting the property and to all other parties having any recorded equity interest or claim in such property at the time of the tax sale.” After Echols fulfilled his obligation to give notice to the record property owner and lien holders, the property owner submitted the only claim to Echols for the excess tax sale funds, and Brina Bay has failed to show that more was required of Echols before he disbursed the funds. Apparently, after having notified the appropriate parties and receiving a claim for the excess funds by only one party, Echols did not deem it necessary to file an interpleader action.

Brina Bay’s reliance on American Investment Assoc. and Wester is misplaced, as those cases do not hold, as Brina Bay contends, that a lien holder in Brina Bay’s position was, by virtue of having redeemed the property, a first-priority lien holder with a first-priority claim to the excess tax sale proceeds. American Investment Assoc. concerned an interpleader action wherein the redeeming creditor, who had acquired status as a creditor (of the record owner of the property) on the day of the tax sale, held a first-priority lien for the amounts it expended to redeem the property and thus was entitled to excess tax sale funds to the extent of the redemption price. Wester involved an interpleader action wherein one (of two) judgment lien holder, with a conflicting claim to excess tax sale funds, redeemed property and acquired a first lien on the property in the amount it paid to redeem the property, over the other lien holder who held a lien that was prior in time to the redeemer’s.

“Where money is in the hands of an officer, he may pay it over to the plaintiff by whose process it was raised, unless other claimants deposit their liens with him. . . ,” Here, Brina Bay’s petition and demands for the excess tax sale funds were made pursuant to OCGA § 15-13-3, which pertinently required Echols to, upon application, pay to the proper person or his attorney any money he may have in his hands which he may have collected by virtue of his office; and if, after such demand was “not then paid, for such neglect or refusal,” was Echols compelled to pay interest “upon the sum he has in his hands from the date of the demand. . . .”

It is uncontroverted that at the time Brina Bay made demand, Echols no longer had any of the excess tax sale money. Thus, it was not by neglect or refusal that Echols did not pay the excess funds to Brina Bay. On the contrary, Echols showed good cause why he did not pay Brina Bay the excess funds — because he had already paid them to the record owner of the property, the only party who had filed a claim for the funds. Therefore, the undisputed facts, viewed in the light most favorable to Brina Bay, authorized the trial court’s grant of summary judgment to Echols.

2. Brina Bay contends that the trial court erred in granting summary judgment to Travelers, because as surety on the bond that Echols was required to maintain, Travelers is liable to Brina Bay for any amounts owed to Brina Bay by Echols as a result of Echols’s wrongful and unlawful act. However, as the surety on the bond for Echols, Travelers has no liability where Echols has none. And as shown above, Echols was not liable. Thus, the trial court correctly granted summary judgment to Travelers.

Judgment affirmed.

Andrews, J., concurs. McFadden, J., concurs specially.

Decided February 21, 2012.

Weissman, Nowack, Curry & Wilco, Bradley A. Hutchins, Busch, Slipakoff & Schuh, Christopher M. Porterfield, for appellant.

Stewart, Melvin & Frost, William H. Blalock, Jr., Bovis, Kyle & Burch, Gregory R. Veal, William R. Bryant, Freeman, Mathis & Gary, Dana K. Maine, Michelle Y Terry, for appellee.

MCFADDEN, Judge,

concurring specially.

I cannot fully join Division 1 of the majority opinion, because I believe that the appeal should be resolved under the plain language of OCGA § 15-13-3. I concur in Division 2 and in the judgment.

Brina Bay brought its money rule action against Echols pursuant to OCGA § 15-13-3. Pertinent to this appeal, that Code section applies when a sheriff “fails, upon application, to pay to the proper person or his attorney any money he may have in his hands which he may have collected by virtue of his office.” (Emphasis supplied.) OCGA § 15-13-3 (a). It is undisputed that Echols, as ex-officio sheriff, had no money in his hands collected by virtue of his office in connection with the tax sale either when Brina Bay applied for the excess tax sale funds or when Brina Bay obtained its interest in the property.

Accordingly, Brina Bay has no claim pursuant to OCGA § 15-13-3 under the plain language of that Code section. Because Brina Bay articulates no other basis for its claim, I believe that this is dispositive of the appeal. I therefore see no need to address, in this case, the propriety of Echols’s earlier decision to distribute the excess tax sale funds or the merits of Brina Bay’s assertion that Echols’s actions amounted to improperly paying a claimant who was first in time rather than first in priority

        Jones v. Kirk, 290 Ga. 220, 221 (719 SE2d 428) (2011) (citation omitted).

       OCGA § 15-13-3 (a) pertinently provides:
      If any sheriff, coroner, magistrate, constable, clerk of the superior court, or attorney at law fails, upon application, to pay to the proper person or his attorney any money he may have in his hands which he may have collected by virtue of his office, the party entitled thereto or his attorney may serve such officer with a written demand for the same. If not then paid, for such neglect or refusal the officer shall be compelled to pay interest. . . unless good cause is shown to the contrary.

       OCGA § 48-4-43 pertinently provides:
      When property has been redeemed, the effect of the redemption shall be to put the title conveyed by the tax sale back into the defendant in fi. fa., subject to all liens existing at the time of the tax sale. If the redemption has been made by any creditor of the defendant or by any person having any interest in the property, the amount expended by the creditor or person interested shall constitute a first lien on the property and . . . shall be repaid prior to any other claims upon the property.

       302 Ga. App. 400 (691 SE2d 272) (2010).

       282 Ga. App. 392 (638 SE2d 779) (2006).

       (Emphasis supplied.)

       OCGA § 48-4-5 (a).

        American Investment Assoc., supra at 401 (“In light of the conflicting claims to the funds, the tax commissioner paid the excess funds into the registry of the court and prayed that the court order the defendants to interplead the action.”).

       Supra.

       Supra.

       Compare Barrett v. Marathon Investment Corp., 268 Ga. App. 196, 198 (1) (601 SE2d 516) (2004) (because the right to excess funds from a tax sale is freely alienable, a delinquent taxpayer is entitled to convey his interest in excess tax sale funds to a third party; while the successor in right, title and interest to the owner-defendant in fi. fa. was not entitled to receive the excess funds on the date of the tax sale because as of that date it neither owned the property nor held a lien against the property, successor later became entitled to the funds through a quitclaim deed).

        American Investment Assoc., supra at 401-404 (1).

       Supra.

       Id.

       OCGA § 15-13-13 (a) (formerly Code of 1933, § 24-211); Henson & Henson, P.C. v. Myszka, 160 Ga. App. 135, 136 (1) (286 SE2d 456) (1981).

       See Scott v. Vesta Holdings I, 275 Ga. App. 196, 201 (2) (620 SE2d 447) (2005) (a tax commissioner is subject to a money rule as an ex-officio sheriff under OCGA §§ 48-5-137; 15-13-2 (4)).

       OCGA § 15-13-3 (a).

        Jones, supra.

       See OCGA § 10-7-2, which pertinently provides: “The obligation of the surety is accessory to that of his principal; and, if the latter from any cause becomes extinct, the former shall cease of course, even though it is in judgment.”; Norris v. Pollard, 75 Ga. 358, 361 (1885) (the surety is liable for no greater amount than is found to be due from the principal; his liability cannot be extended beyond that of his principal).

        Jones, supra; Norris, supra; OCGA § 10-7-2.


author: Doyle, Presiding Judge.

text:
    A11A1854.
    JONES v. THE STATE.
    (723 SE2d 697)
   Doyle, Presiding Judge.

Rodger Dale Jones, Jr., was convicted of felony possession of methamphetamine. He appeals, arguing that the trial court erred by denying his motion to suppress. We affirm, for reasons that follow.

While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

“Here, the relevant evidence is undisputed, and we therefore review the trial court’s legal rulings de novo.”

So viewed, the record shows that officers of the Walton County drug enforcement team received complaints from neighbors that drugs were being sold out of a house at 4514 Yorktown Drive in Walton County. The team could not, however, establish sufficient probable cause to obtain a search warrant on the house. Instead, they performed a computer search and determined that one of the residents of the home, Tiffany Brown, had an outstanding arrest warrant for failing to appear before the magistrate court on August 3, 2010, on a charge of allowing an animal to run at large.

On August 12, 2010, Michael Stamey, a narcotics investigator, received information from a neighbor that Brown had just returned home in her vehicle and entered the house. Although they did not normally search for persons with outstanding warrants for failure to appear in magistrate court, five members of the narcotics unit went to the home and placed it under surveillance in an attempt to locate and arrest Brown. When the police arrived, the vehicle registered to Brown was parked in front of the house. Approximately one hour after beginning surveillance, Stamey knocked on the front door “to see if [Brown] was there . . . [and] would come to the door,” and a woman answered. In response to questioning, the woman denied that she was Brown, denied that Brown was in the residence, and refused to grant the police permission to enter the house. Stamey and the other five officers nevertheless entered the home to search for Brown, and they “swept the house,” checking the identities of the people they encountered inside. The police did not open drawers or cabinets or otherwise search for drugs.

Stamey found Jones lying on the bed in a bedroom with a comforter covering his lower body, including his hands. When Jones refused to comply with Stamey’s repeated commands to show his hands, the officer became concerned about his safety and took Jones to the ground. While performing a patdown on Jones’s pockets, Stamey felt a small baggie, which he believed from his experience to be a baggie containing narcotics, and a hard cylindrical item with a bulb-shaped end, which Stamey identified as a methamphetamine pipe. Stamey seized the objects, and the pipe was later determined to contain methamphetamine residue.

Brown was not home when the officers initially entered the house, but she arrived approximately 30 minutes later in Jones’s vehicle. Brown confirmed that she lived at the house, but indicated that she was in the process of being evicted.

Jones filed a motion to suppress the evidence found on his person, which motion was denied after an evidentiary hearing. Following the denial of his application for interlocutory appeal, the case proceeded to a bench trial on stipulated facts, and the trial court found Jones guilty of possession of methamphetamine.

In several enumerations, Jones argues that the trial court erred by denying his motion to suppress.

1. Jones contends that the police officers’ entry into the house was illegal. We disagree.

It is well settled that “for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Here, it is undisputed that Brown lived at the house on Yorktown Drive on the day at issue. And, despite Jones’s argument to the contrary, the police reasonably believed that Brown was in the house at the time of their entry based upon information from a neighbor, who reported seeing her arrive home in her car and enter the house 30 minutes before the officers’ arrival, and the fact that the vehicle registered to Brown was parked in front of the house.

Jones further argues that the police officers’ use of Brown’s arrest warrant for a minor magistrate court charge was pretextual and rendered their entry into the house illegal. To support this argument, Jones solely relies on Jones v. United States, which is inapposite. In Jones, federal agents secured a daytime search warrant for the defendant’s home, but they did not search the house until nighttime after conducting surveillance to obtain more evidence of an illegal distillery. The search was, therefore, not conducted pursuant to a valid warrant, and the agents did not have consent to search. The Supreme Court held that the officers’ belief that “certain articles subject to seizure” would be found in the house was insufficient to justify the warrantless entry into the home, as was the officers’ attempt to execute a warrantless arrest of the defendant based upon their belief that he had committed a felony.

Here, the officers’ entry into the home was not warrantless. Instead, the officers entered Brown’s residence, reasonably believing she was present in the home at the time, to execute a valid arrest warrant. Importantly, the police limited their search to those areas in which Brown might be located; there was no evidence that they attempted to search the house for narcotics or any other items. Under these circumstances, because the police had a valid arrest warrant for Brown (albeit for a minor infraction), and because the officers properly limited their search of her home to those areas where she might be located, the fact that they might have been motivated to enter the house to search for drugs was immaterial and does not render the entry and subsequent seizure of evidence from Jones illegal.

2. Jones further argues that the trial court erred by concluding that his detention and patdown were justified because Stamey did not have a reasonable belief that Jones was armed and dangerous. This argument is without merit.

Under Terry v. Ohio,

a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. . . . Before an officer places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.

So long as an officer

has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. The question is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety was in danger. He is justified if, from the circumstances, he reasonably inferred that the individual was armed and dangerous.

Here, the trial court did not err as a matter of law in concluding that Investigator Stamey was justified in believing that his safety was at risk based on the circumstances, including that the officers were searching the house to execute an arrest warrant for a resident thereof, suspicion of drug activity at the house had been reported by neighbors, and Jones, who was sitting up in bed, failed to comply with Stamey’s repeated commands that he display his hands, which were obscured under the covers.

3. Finally, Jones contends that the “plain feel” doctrine did not support the officer’s search of his pockets. This enumeration presents no basis for reversal.

Under the plain feel doctrine,

if a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.

Decided February 21, 2012.

William A. McQueen, John M. Petty, Jr., for appellant.

Layla H. Zon, District Attorney, Erie J. Newton III, Marie E. Greene, Assistant District Attorneys, for appellee.

Here, Stamey, an experienced narcotics investigator, testified that when he conducted the patdown of Jones’s pockets, he felt a small, plastic baggie containing small objects; when he asked Jones what it was, Jones twice replied that he did not know. Based on his training and experience, Stamey believed that the object was a baggie containing narcotics. Stamey also felt “a hard cylinder[-]shaped object in [Jones’s] pocket with a round[,] bulb[-]shaped end, which . . . [the officer] knew right away . . . was a methamphetamine pipe.” Stamey had felt similar items during more than 25 previous patdowns.

It was unnecessary for the officer to conclusively identify what type of drug [Jones] was carrying in order for the plain feel doctrine to make the seizure of the contraband lawful. Under the plain feel doctrine, the officer was entitled to seize the item and the evidence was properly admitted. He was not compelled to ignore what was apparent to him upon feeling the object and to walk away instead.

Under these circumstances, we conclude that the trial court did not err in determining that the seizure of the items in Jones’s pockets was lawful.

Judgment affirmed.

Ellington, C. J., and Miller, J., concur.

       OCGA § 16-13-30 (a).

       (Citations omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

        Tunali v. State, 311 Ga. App. 844, 845 (717 SE2d 341) (2011).

       Officers arrived at the home approximately 30 minutes after the telephone call from the neighbor stating that Brown had arrived home.

        Payton v. New York, 445 U. S. 573, 603 (IV) (100 SC 1371, 63 LE2d 639) (1980). See Brannan v. State, 275 Ga. 70, 73 (2) (b) (561 SE2d 414) (2002) (“An arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.”) (punctuation omitted); Wall v. State, 291 Ga. App. 278, 279 (661 SE2d 656) (2008) (same).

       See Wall, 291 Ga. App. at 279; State v. Wright, 204 Ga. App. 382, 382-383 (2) (419 SE2d 334) (1992).

       357 U. S. 493 (78 SC 1253, 2 LE2d 1514) (1958).

       See id. at 494-495.

       See id. at 495, 497.

       See id. at 497-499.

       Compare Steagald v. United States, 451 U. S. 204, 213-214 (III) (101 SC 1642, 68 LE2d 38) (1981) (holding that police cannot legally enter a third party’s home to execute an arrest warrant for another individual absent consent, exigent circumstances, or a search warrant); Looney v. State, 293 Ga. App. 639, 641 (667 SE2d 893) (2008) (“[A] law enforcement officer may not legally search for the subject of an arrest warrant in the home of a third party without first obtaining a search warrant, absent exigent circumstances or consent.”).

        See Maryland v. Buie, 494 U. S. 325, 332-333 (III) (110 SC 1093, 108 LE2d 276) (1990) (police can legally enter a person’s home to execute an arrest warrant for that individual, who they reasonably believe is home at the time, and they can search any area of the home in which the person might be found); State v. Wright, 204 Ga. App. 382, 383-384 (4) (419 SE2d 334) (1992) (while attempting to execute an arrest warrant for a person at their residence, law enforcement was “entitled to enter and to search anywhere in the [dwelling] in which [a person] might be found”) (punctuation omitted; emphasis in original).

       See, e.g., Whren v. United States, 517 U. S. 806, 814 (II) (B) (116 SC 1769, 135 LE2d 89) (1996) (reasonableness of a traffic stop is based on objective criteria, not on actual motives of police); Pincherli v. State, 295 Ga. App. 408, 411-412 (2) (a) (671 SE2d 891) (2008) (“an officer’s ulterior law enforcement motive does not preclude him, under Fourth Amendment law, from lawfully executing a traffic stop when he observes a traffic violation”); Somesso v. State, 288 Ga. App. 291, 294 (2) (b) (653 SE2d 855) (2007) (same).

       392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

       (Citations and punctuation omitted.) Hodges v. State, 217 Ga. App. 806, 808 (2) (460 SE2d 89) (1995).

       (Citation and punctuation omitted.) Id.

       See O’Quinn v. State, 303 Ga. App. 657, 659 (695 SE2d 60) (2010); Vaughn v. State, 247 Ga. App. 368, 369-370 (1) (543 SE2d 429) (2000) (physical precedent only); Hodges, 217 Ga. App. at 808 (2). Compare State v. Varner, 239 Ga. App. 347 (521 SE2d 247) (1999) (affirming the trial court’s finding that officer lacked prohable cause to effect a patdown of a handcuffed individual on the basis of officer safety).

        Holmes v. State, 267 Ga. App. 651, 653 (601 SE2d 134) (2004), quoting Minnesota v. Dickerson, 508 U. S. 366, 375-376 (II) (B) (113 SC 2130, 124 LE2d 334) (1993).

       (Citation and punctuation omitted.) Holmes, 267 Ga. App. at 653-654.

       See id. at 654; Dunn v. State, 289 Ga. App. 585, 586-587 (1) (b) (657 SE2d 649) (2008); Harris v. State, 239 Ga. App. 537, 539 (1) (521 SE2d 462) (1999).