author: Ellington, Presiding Judge.

text:
    A16A1972.
    In re ESTATE OF JIMMY DARRELL BANKS, JR.
    (793 SE2d 451)
   Ellington, Presiding Judge.

The Probate Court of Meriwether County entered an order finding Jimmy Darryl Banks, Jr. (“Banks”), in contempt of court for violating its orders that he preserve and return certain specified property of his father’s estate. Pursuant to this Court’s order granting Banks’s application for discretionary appeal, see OCGA § 5-6-35 (a) (l),he appeals, and, for the reasons explained below, we vacate the contempt order and remand.

The record shows the following proceedings. Jimmy Darryl Banks, Sr., died intestate in November 2014. In August 2015, his widow, Eunice Banks, and his daughter, April Banks (the “petitioners” or the “co-administrators”), filed a petition for letters of administration in the Probate Court of Meriwether County On August 19, 2015, the petitioners then filed an emergency motion, seeking an order restraining Banks and Doris Harris (identified as the decedent’s friend) from disposing of personal property that had belonged to the decedent, including five specified motor vehicles, a lawn mower, and a trailer. The probate court immediately granted a temporary restraining order, enjoining any person in possession of the listed property from selling, pawning, or otherwise disposing of the property, unless authorized by court order, and directing such persons to immediately surrender the property to a sheriff’s deputy at the decedent’s former residence. On September 8, 2015, the petitioners filed a motion for contempt, alleging that Banks and Harris violated the temporary restraining order by failing to retrieve or relinquish any of the property listed in the order.

In two orders entered on September 28, 2015, the probate court recited that it held a hearing six days earlier (on September 22, 2015). In one order, the probate court granted the petition for letters of administration and designated Eunice Banks and April Banks as co-administrators of the estate. In the other order, the probate court ordered Banks and Harris to return all property listed in the August 19, 2015 temporary restraining order. The probate court commanded Banks and Harris to complete the requirements of that order entered on September 28 “within five days after the hearing held on September 22” and ordered that “failure to comply with this Order shall be punished by imprisonment... [with the contemnor] to remain [in jail] so charged with contempt until he or she complies with this Order.” During these proceedings, the co-administrators were representedby attorney Robert Bexley.

On February 5, 2016, the co-administrators filed pro se a motion for imposition of sanctions for contempt against Banks and Harris, alleging that they failed to return the property as ordered. Before the hearing on the motion, the co-administrators’ attorney moved to withdraw, and the probate court granted his request on March 1, 2016. The court conducted a hearing on the motion for contempt beginning onMarch 18 and concluding onMarch21,2016. In an order entered March 22, 2016, the probate court found that Banks was in wilful contempt of its September 28, 2015 order, based on his failure to return three vehicles and their keys (a 1972 Camaro, a 1979 black van, and a 2002 Dodge Stratus), along with the keys to a fourth vehicle (a 1993 Ford F150) anda lawn mower. The court ordered that Banks be incarcerated until further order of the court, noting that he could purge himself of contempt by fully complying with the order to return the property to the co-administrators. Because Banks’s contumacious conduct occurred outside the presence of the probate court, the court granted his request for supersedeas, pending this appeal.

1. Banks contends that, because the co-administrators were still represented by counsel on February 5, 2016, they were without legal authority to represent themselves in filing a motion for sanctions and, therefore, that the probate court erred in going forward with the contempt proceeding over his counsel’s oral objections. If Banks had formally moved to dismiss the co-administrators’ motion for sanctions on the basis that they still had counsel of record, which he did not, and the trial court had dismissed their motion, the co-administrators had only to wait until their counsel had been permitted to formally withdraw to immediately refile their motion pro se. By the time of the evidentiary hearing on the co-administrators’ motion for sanctions, their counsel had formally withdrawn, and they were no longer represented by counsel. Banks has not articulated any basis for finding that he suffered any prejudice in the trial court’s tacitly allowing the co-administrators’ premature pro se filing to be held effectively in abeyance pending formal withdrawal of counsel. “The trial court’s exercise of its discretion in undertaking such actions to aid in the orderly administration of its business will not be disturbed on appeal absent an impermissible restriction of [a litigant’s] access to the courts[.]” Higdon v. Higdon, 321 Ga. App. 260, 267 (4) (739 SE2d 498) (2013). Under the circumstances presented here, we discern no abuse of discretion in the probate court’s economical management of the proceedings.

2. In related claims of error, Banks contends that the probate court erred in finding him in wilful contempt and ordering him confined until he returns the personal property described in the probate court’s September 28, 2015 order, a task he contends was shown to be impossible under the circumstances.

The appropriate standard of proof in a civil contempt case is preponderance of the evidence. On appeal from an order finding a party in civil contempt, if there is any evidence from which the trial court could have concluded that its order had been violated, this Court is without power to disturb the judgment absent an abuse of discretion.

(Citations and punctuation omitted.) In re Singleton, 323 Ga. App. 396, 403 (2) (b) (744 SE2d 912) (2013).

In his notice of appeal, Banks indicated that “[a]ny transcript of evidence and proceedings will be filed for inclusion in the record on appeal.” No such transcript was transmitted to this Court. Upon inquiry to the clerk of the probate court, it appears that there was no court reporter at the hearing on the motion for contempt beginning on March 18 and concluding on March 21, 2016. Ordinarily, Banks’s failure to support his claims of error with specific reference to the record or transcript as needed to support his statement of facts would result in affirmance of the probate court’s judgment. However, under these circumstances, an affirmance on the basis of such procedural default would, if Banks’s compliance with the September 28, 2015 order is truly impossible, impermissibly subject Banks to indefinite incarceration for civil contempt. Under Georgia law,

[w]hen the trial court orders incarceration for an indefinite period until the performance of a specified act, the contempt is civil. ... A trial court, however, may not continue incarceration for civil contempt when the respondent lacks the ability to purge himself. Imprisonment under civil sanctions is always conditional and a party found in contempt may apply for release at any time upon a showing of inability to [comply].... [T]he moment it appears that there is inability, it would clearly be the duty of the judge to discharge the party. Because the purpose of civil contempt is to provide a remedy and to obtain compliance with the trial court’s orders, the justification for imprisonment is lost when that compliance is impossible.

(Punctuation and footnotes omitted; emphasis in original.) Hughes v. Ga. Dept. of Human Resources, 269 Ga. 587, 587-588 (1), (2) (502 SE2d 233) (1998). Because the co-administrators have not filed any brief disputing Banks’s claim that the evidence showed that his compliance with the probate court’s order is impossible, we deem it appropriate to remand to the probate court to allow for the completion of the appellate record. See OCGA § 5-6-41 (g).

Decided October 27, 2016.

Garland C. Moore, for appellant.

Eunice Banks, pro se.

April Banks, pro se.

Upon appropriate supplementation of the record, the clerk of the probate court shall transmit the complete record to this Court, for redocketing pursuant to the Notice of Appeal Banks filed on May 10, 2016, and briefing shall be as provided in the new notice of docketing.

Judgment vacated and case remanded.

Branch and Mercier, JJ., concur.

       The record shows that the temporary restraining order actually referenced a 1992 Camaro.

        Seagraves v. State, 259 Ga. 36, 39 (376 SE2d 670) (1989) (A layperson does not have the right to represent herself while also represented by an attorney.); Ervin v. Turner, 291 Ga. App. 719, 723-724 (7) (662 SE2d 721) (2008) (The trial court properly dismissed a defendant’s motion to set aside because it was made pro se when she was represented by counsel.); Jacobsen v. Haldi, 210 Ga. App. 817, 819 (1) (437 SE2d 819) (1993) (The trial court properly denied and refused to accept the client’s pro se objection to the reduced damage award because she could not attempt to represent herself by filing pro se pleadings while at the same being represented by counsel of record.).

       In particular, Banks contends that he testified at the contempt hearing that the decedent’s estate did not comprise any lawn mower such as that described in the probate court’s temporary restraining order, that the co-administrators failed to rebut his testimony with any evidence, and that the probate court therefore erred in finding him in wilful contempt for failing to turn over a lawn mower that does not exist. Similarly, he contends that there was no evidence that the decedent’s estate comprised either a 1972 [sic] Camaro or a 2002 Dodge Stratus as specified in the probate court’s temporary restraining order, precluding a finding of contempt. He contends that he testified at the contempt hearing that he sold the decedent’s black 1979 Chevrolet van for $95 as scrap and used the funds to contribute to the funeral expenses, and therefore the vehicle no longer exists. And he contends that he testified at the hearing that he pawned the 1993 Ford F150 truck described in the September 28, 2015 order and used the funds to contribute to the funeral expenses and that he lacks the funds to pay the loan and reclaim the truck, precluding a finding of wilful noncompliance.

        Broadcast Concepts v. Optimus Financial Svcs., 274 Ga.App. 632, 634 (1) (618 SE2d 612) (2005) (“Without a transcript, the appellate court must presume that the trial court’s findings of fact are supported by evidence.”) (citation and punctuation omitted); Holt v. Brown, 177 Ga. App. 823 (341 SE2d 486) (1986) (“[W]here no transcript or agreed statement of facts is furnished, the appellate court is bound to assume that the trial court’s findings are supported by sufficient competent evidence for there is a presumption in favor of the regularity of all proceedings in a court of competent jurisdiction.”) (citations and punctuation omitted); Court of Appe als Rule 25 (c).

       We note that, while the co-administrators have filed no responsive brief in this case, Case No. A16A1972, they did file a response to his application for discretionary appeal, Case No. A16D0346. In that pleading, they do not show that Banks’s full compliance with the September 28, 2015 order is possible. (As to the 2002 Dodge Stratus, they assert that, as of April 11, 2016, the vehicle was “sitting on the property at 437 Davenport Rd,” which is the address where Banks was commanded to return the vehicle.) Instead, they insist that Banks’s conduct is criminal and that, having “do[ne] the crime ... he must do the time.” Because, as explained above, the probate court did not impose a definite term of confinement as punishment for contumacious behavior, however, the key question is not whether Banks’s past conduct was wrongful but whether his noncompliance is and continues to be wilful. Hughes v. Ga. Dept. of Human Resources, 269 Ga. at 587 (2); Gallaher v. Breaux, 286 Ga.App. 375, 377-378 (650 SE2d 313) (2007) (Once contemnor, who was found in civil contempt for refusing to pay back child support and incarcerated, established his inability to pay, the trial court had no authority to continue his incarceration and, thus, had no authority to confine him in a diversion center or to place him in a work release program.); see Cross v. Ivester, 315 Ga.App. 760, 764 (1) (728 SE2d 299) (2012) (The burden is on the contemnor, and not on the trial court, to affirmatively show his or her inability to comply with the court’s lawful directives in order to obtain release.).

       Where a trial is not reported ... or where for any other reason the transcript of the proceedings is not obtainable and a transcript of evidence and proceedings is prepared from recollection, the agreement of the parties thereto or their counsel, entered thereon, shall entitle such transcript to be filed asa part of the record in the same manner and with the same binding effect as a transcript filed by the court reporter .... In case of the inability of the parties to agree as to the correctness of such transcript, the decision of the trial judge thereon shall be final and not subject to review; and, if the trial judge is unable to recall what transpired, the judge shall enter an order stating that fact.
      OCGA § 5-6-41 (g).


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A16A0674.
    SUMMERLIN v. THE STATE.
    (793 SE2d 477)
   Ray, Judge.

A Cobb County jury found Candida Summerlin guilty but mentally ill on two counts of criminal attempt to commit malice murder, two counts of criminal attempt to commit felony murder, two counts of aggravated assault on a peace officer, two counts of hit and run, two counts of criminal damage to property in the first degree, and one count each of aggravated battery, fleeing or attempting to elude a police officer, and interference with government property. Summer-lin appeals from her convictions and the denial of her motion for new trial, contending that: (1) the verdict was erroneous because she proved her insanity defense; (2) the trial court erred in denying her motion for new trial based on newly discovered evidence; (3) the trial court erred in denying her motion for directed verdict on the criminal attempt to commit felony murder charges; (4) the trial court erred in charging the jury; and (5) the trial court erred in allowing certain hearsay testimony For the following reasons, we affirm.

Viewed in the light most favorable to support the verdict, the evidence presented at trial showed that on May 31, 2013, Summerlin drove to the work-release facility at the Cobb County detention center. She parked in front of the building in an area normally reserved for Sheriff’s Office vehicles, playing her radio loudly Lieutenant Westenberger approached Summerlin and told her that she had parked in a restricted area and that she needed to move her vehicle to a different area of the parking lot. Summerlin responded to Lieutenant Westenberger in an angry tone, and she glared at the officer as she was putting on her seatbelt. As Lieutenant Westen-berger was walking away from the vehicle, Summerlin revved up her engine and accelerated toward the officer, striking her with the front of the vehicle. Sergeant Kite observed Lieutenant Westenberger as she was rolling off the top of the moving vehicle, and he ran out of the building and tried to stop Summerlin. Summerlin then accelerated and veered her vehicle toward Sergeant Kite, striking him as well. When Summerlin’s vehicle hit a nearby curb and a signpost, disabling her vehicle, Sergeant Kite approached the vehicle and placed Summerlin under arrest. The jury found Summerlin guilty but mentally ill of all counts charged in the indictment.

1. We first address Summerlin’s enumeration of error relating to the admission of certain statements made by Summerlin during telephone conversations while in custody at the Cobb County jail. Summerlin contends that the statements were irrelevant, unreliable, and prejudicial hearsay, and that the admission of the statements violated her right to confrontation. We disagree.

The first of these telephone calls occurred on May 26, 2013, just five days prior to the criminal conduct at issue in this case, when Summerlin was under arrest for another incident. Although this telephone call had been recorded by the jail and later listened to by the officer assigned to investigate the instant case, the officer was unable to copy the audio to a CD due to a change in the jail’s phone system. After the trial court provided the jury with the appropriate limiting instructions, the officer was permitted to testify as to Sum-merlin’s statements, using his investigative notes. The officer testified that Summerlin had stated on the phone: “I know the bitch ass that just locked me up is about to get it, tell you that.”

The two other telephone calls occurred on June 15 and June 17, 2013, after Summerlin was arrested for the charges in this case. The investigating officer was able to download a copy of the audio of the latter telephone calls onto a CD, which was played for the jury. In the June 2013 telephone calls, Summerlin complained of previous harassment by Cobb County law enforcement officers and that one of the deputies she hit with her car “tried to shoot at me so I ran the bitch over.”

In Georgia, hearsay is generally not allowed as evidence and is defined as “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” OCGA § 24-8-801 (c). However, statements made by the opposing party are deemed admissions which are not excluded by the rule. OCGA § 24-8-801 (d) (2) (A). Additionally,

[ejvidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

OCGA § 24-4-404 (b).

Summerlin’s statement in the May 26, 2013, telephone call relates to a prior wrong or act which would generally be irrelevant character evidence. However, since Summerlin asserted an insanity defense, her state of mind at the time of the conduct was highly relevant. This particular telephone call occurred five days before the criminal conduct at issue in this case, and her statement indicates her disdain for law enforcement intervention and a desire to seek revenge. Therefore, this statement is relevant to show her motive and intent in committing the crimes in this case. Additionally, the trial court instructed the jury not to use this evidence as proof of the prior wrong and to only consider it to the extent it shows Summerlin’s intent or motive in committing the alleged crimes in the case before them. Finally, Summerlin had the opportunity to cross-examine the investigating officer in an attempt to show that his memory of the phone conversation was not credible. Therefore, this evidence was properly admitted by the trial court.

As for the June 2013 telephone calls, Summerlin contends that the statements made by the person to whom she was speaking constituted inadmissible hearsay. She argues that without the hearsay the telephone conversation would be incomplete, which would allow Summerlin’s statements to be taken out of context. However, Summerlin’s statements speak for themselves. The statement “she tried to shoot at me so I ran the bitch over” shows a willingness to use a motor vehicle as a weapon or a means of attack against another person, even without the other person’s response. Thus, this evidence is relevant to Summerlin’s motive and intent at the time of the incident and her propensity to use a motor vehicle to strike another person. It also was an admission. Therefore, her objection was properly overruled, and the trial court did not err in admitting this evidence.

2. Summerlin argues that the guilty but mentally ill verdict is erroneous because she established her insanity defense by a preponderance of the evidence and that the State failed to disprove that defense beyond a reasonable doubt. We disagree.

Under Georgia law, a person is insane, and shall not be guilty of a crime, if at the time of the act.. . constituting the crime, the person did not have [the] mental capacity to distinguish between right and wrong in relation to the criminal act or acted because of a delusional compulsion which overmastered [her] will to resist committing the crime. A defendant claiming insanity has the burden of proving the defense by a preponderance of the evidence. Because Georgia law presumes every person is of sound mind and discretion, criminal trials begin with the rebut-table presumption that the defendant is sane[,] and this presumption is evidence. Where the defense presents evidence in support of a defense of insanity, a jury is authorized to reject such evidence. On appeal, [the standard of review is] whether, viewing the evidence in the light most favorable to the verdicts, a rational trier of fact could have found that [Summerlin] failed to prove by a preponderance of the evidence that [she] was insane at the time of the crimes, and whether the State met its burden of proving [she] was guilty, but mentally ill, beyond a reasonable doubt.

(Citations omitted.) Norred v. State, 297 Ga. 234, 235-236 (773 SE2d 234) (2015). Although jurors are entitled to reject expert testimony on the question of sanity, the jury “may not rely solely on the rebuttable presumption of sanity[ ] when the proof of insanity is overwhelming.” (Citation and footnote omitted.) Barge v. State, 256 Ga. App. 560, 562 (2) (568 SE2d 841) (2002).

At trial, Summerlin presented evidence and expert testimony concerning her prior mental health and her state of mind on the day of the incident. Her evidence showed that she had a history of mental health issues. Summerlin’s expert, Dr. Matthew Norman, testified that he diagnosed Summerlin as having a bipolar disorder with manic and psychotic features. Dr. Norman further testified that, in his opinion, Summerlin was experiencing a manic episode with hallucinations and delusions at the time of the incident. The State responded with expert testimony which showed that bipolar disorders are extremely common diagnoses and that most people with bipolar disorders could still distinguish right from wrong. Additionally, the State’s psychiatric experts testified that they evaluated Summerlin and diagnosed her as having “malingered hallucinations,” meaning that she either fabricated her hallucinations and delusions or exaggerated them to achieve a secondary purpose. Having heard all of the evidence and testimony, including the statements made by Summerlin indicating her disdain for law enforcement intervention and her penchant for seeking revenge, the jury rejected Summerlin’s defense of insanity and instead found her guilty but mentally ill.

Summerlin argues that her conduct was so inexplicable that her actions alone were sufficient to meet her burden of proof as to insanity. In support of her argument, Summerlin cites Brown v. State, 228 Ga. 215 (184 SE2d 655) (1971), a case in which our Supreme Court held that the trial court erred in rejecting the defendant’s requested jury instruction that “the act itself may be so utterly senseless and abnormal as to furnish satisfactory proof of a diseased mind.” (Punctuation omitted.) Id. at 219-220 (3). However, Summer-lin does not assert that she requested a similar jury instruction in this case. Rather, she seeks to use this principle of law to override the jury’s rejection of her insanity defense, contending that the evidence was so overwhelmingly in favor of a finding of insanity that no reasonable trier of fact could have found otherwise. We cannot agree.

Based on the evidence presented at trial, the jury was authorized to reject Summerlin’s insanity defense and instead rely upon the presumption of sanity and the expert witness testimony indicating that most people with bipolar disorders understand the difference between right and wrong and that Summerlin had either fabricated or exaggerated her symptoms regarding her mental health to achieve a secondary purpose. The State’s case was buttressed by the evidence that Summerlin had a disdain for law enforcement intervention and a penchant for seeking revenge. Therefore, the evidence presented to the jury did not overwhelmingly show Summerlin was insane at the time of her crimes. As the State had met its burden of disproving her insanity defense, the jury was authorized to return a verdict of guilty but mentally ill.

3. Summerlin next argues that the trial court erred in denying her motion for new trial based on newly discovered evidence. We disagree.

Following trial and the subsequent sentencing hearing, defense counsel obtained probate court records relating to a petition for guardianship filed by Summerlin’s parents. Among those records was a psychological evaluation report prepared by a psychologist who had been appointed by the probate court. The psychologist reported that Summerlin suffered from mental illness that affected her ability to make responsible decisions, and he opined that Summerlin was in a psychotic state at the time of her criminal conduct at issue in the present case. Summerlin argues that this newly discovered evidence warrants a new trial.

For a new trial to be granted on the basis of newly discovered evidence, however, Summerlin must satisfy all of the following requirements:

(1) the evidence at issue came to [her] knowledge since [her] trial; (2) it was not owing to the want of due diligence that [she] did not acquire it sooner; (3) such evidence is so material that it would probably produce a different, verdict; (4) the evidence is not merely cumulative; (5) the affidavit of the witness [himself] should be procured or its absence accounted for; and (6) the effect of the evidence would be more than to merely impeach the credibility of a witness.

(Citation omitted.) State v. Hill, 295 Ga. 716, 720 (763 SE2d 675) (2014).

Although the psychologist’s report at issue here is relevant to show Summerlin’s mental capacity at the time of the crimes, this evidence is cumulative of the evidence that she presented at trial. In Georgia,

[t]he true test as to whether evidence is cumulative depends not only on whether it tends to establish the same fact, but it may depend on whether the new evidence is of the same or different, grade. It is only when newly discovered evidence either relates to a particular material issue concerning which no witness has previously testified, or is of a higher and different grade from that previously had on the same material point, that it will ordinarily be taken outside the definition of cumulative evidence.

(Citation omitted.) Brown v. State, 264 Ga. 803, 806 (3) (450 SE2d 821) (1994).

At trial, the defense presented expert testimony concerning Summerlin’s mental health at the time of her criminal conduct. Allowing further testimony of the same grade on this issue would be merely cumulative. Furthermore, since the jury hadpreviously rejected similar evidence, the admission of additional evidence on the same material issue was not likely to produce a different, verdict. Therefore, the trial court did not err in denying Summerlin’s motion for new trial on the basis of newly discovered evidence.

4. Next, Summerlin contends that the trial court erred in denying her motion for a directed verdict on the two criminal attempt to commit felony murder charges. Summerlin argues that attempt to commit felony murder is not a crime in Georgia, and the inclusion of the charges created a prejudicial effect on the jury’s consideration of the other counts in the indictment. We discern no reversible error.

The felony murder statute provides: “A person commits the offense of murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice.” OCGA § 16-5-1 (c). “Aperson commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. However, there does not appear to be any case law in Georgia on whether an attempt to commit felony murder is a recognized crime. We note that other jurisdictions have ruled on this issue, and

[t]he majority of jurisdictions which have considered the question have concluded that attempted felony murder is not a crime. . . . [T]he offense of attempt requires an intent to commit a specific offense, while ... felony murder ... does not involve an intention to kill. There is no such criminal offense as an attempt to achieve an unintended result.

(Citations and punctuation omitted.) Bruce v. State, 317 Md. 642, 646-647 (IV) (566 A2d 103) (1989). While this logic appears to be sound, we need not decide this issue here.

Although the jury returned a verdict of guilty but mentally ill on the two criminal attempt to commit felony murder counts, the trial court merged these two offenses with the two criminal attempt to commit malice murder convictions. The trial court then sentenced Summerlin on the attempt to commit malice murder convictions, but not on the attempt to commit felony murder counts. Where a defendant is found guilty on alternative counts of malice murder and felony murder and the trial court enters a judgment of conviction and sentence only on the malice murder count, “any issue concerning the felony murder count is moot[.]” (Citations and punctuation omitted.) Roberts v. State, 276 Ga. 258, 260-261 (5) (577 SE2d 580) (2003). Here, the “merged” convictions for criminal attempt to commit felony murder were vacated as a matter of law and fact. See Mason v. State, 279 Ga. 636, 639 (3) (619 SE2d 621) (2005).

Furthermore, assuming without deciding that attempt to commit felony murder is not a recognized crime in Georgia, we find that the evidence supporting her other convictions was overwhelming. Therefore, the inclusion of the attempt to commit felony murder counts, even if erroneous, would not have prejudiced the jury’s consideration of guilt as to the other counts in the indictment.

For the above reasons, we find that the trial court’s denial of the motion for directed verdict on the attempt to commit felony murder counts was of no consequence to Summerlin.

5. Lastly, Summerlin contends the trial court erred in charging the jury. Specifically, she argues that the trial court failed to instruct the jury that the offense of felony murder does not require malice or an intent to kill; the trial court gave charges applicable to the crime of murder when no death had occurred; and the trial court failed to charge that the treatment for a defendant found guilty but mentally ill is dependent on the availability of funds. We find no reversible error.

(a) As a part of its charge on criminal attempt to commit felony murder, the trial court instructed the jury that “a person commits the crime of felony murder when in the commission of a felony that person causes the death of another human being.” Summerlin later objected to this jury instruction because it failed to include the “irrespective of malice” element of the offense. The trial court declined to re-instruct the jury on this point, reasoning that the failure to include the “irrespective of malice” element of felony murder in the charge “would be an error in the defense’s favor[.]” On appeal, Summerlin contends that the incomplete instruction likely misled the jury and permitted the jury to convict her on an erroneous legal theory. However, Summerlin’s convictions for criminal attempt to commit felony murder stand vacated as a matter of law and, thus, any asserted error with regard to the jury instruction on felony murder is of no consequence to Summerlin. See Mason, supra (where defendant’s “merged” felony murder and aggravated assault convictions stood vacated by operation of law and fact, any complaint as to the jury instructions on those charges was moot).

(b) After charging the jury on criminal attempt to commit malice murder, the trial court gave additional instructions applicable to the offense of malice murder. Summerlin objected to the instructions applicable to murder, pointing out that no homicide had occurred in this case. The trial court declined to add to or delete from the charge as given, explaining that it merely defined the offense of murder and followed the pattern charge for that offense. On appeal, Summerlin argues that the instructions applicable to murder were not authorized by the evidence, were highly prejudicial, and likely confused or misled the jury

In the present case, it is undisputed that no death resulted from Summerlin’s actions and that she was not charged with murder. However, since Summerlin was charged with criminal attempt to commit malice murder, it follows that the trial court would explain to the jury the elements and requirements of the crime which she was accused of attempting. See generally Johnson v. State, 187 Ga. App. 803, 804 (3) (371 SE2d 419) (1988) (holding that a charge on criminal attempt to commit aggravated sodomy and rape was sufficient where trial court fully instructed the jury on the elements of aggravated sodomy and rape, thereby providing the jury with guidance in determining whether defendant was guilty of attempting to commit these crimes).

Here, there is no likelihood that the jury was misled by the inclusion of the instructions applicable to murder because the evidence was clear that no death occurred. Furthermore, the instructions did not prejudice the jury because the instructions provided the jury with guidance in determining the issue of Summerlin’s guilt by defining the elements and requirements of the crime for which she was accused of attempting. “The charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same.” (Citations and punctuation omitted.) Johnson, supra at 804 (3). We find no error.

(c) Summerlin contends that the trial court erred in its jury charge by failing to instruct the jury that, if a defendant is found guilty but mentally ill, the defendant’s treatment is dependent upon availability of State funds. Summerlin argues that this information is required by OCGA § 17-7-131 (b) (3). We disagree.

OCGA § 17-7-131 (b) (3) provides, in pertinent part:

In all cases in which the defense of insanity is interposed, the trial judge shall charge the jury, in addition to other appropriate charges, the following:... (B) I charge you that should you find the defendant guilty but mentally ill at the time of the crime, the defendant will be placed in the custody of the Department of Corrections which will have responsibility for the evaluation and treatment of the mental health needs of the defendant, which may include, at the discretion of the Department of Corrections, referral for temporary hospitalization at a facility operated by the Department of Behavioral Health and Developmental Disabilities.

Although the trial court’s charge complied with OCGA § 17-7-131 (b) (3) (B) in all respects, Summerlin contends that a portion of the language in OCGA § 17-7-131 (g) (1) should have also been included in the charge. This subsection states:

Whenever a defendant is found guilty but mentally ill at the time of a felony . . . , the court shall sentence him or her in the same manner as a defendant found guilty of the offense[.]... Adefendant who is found guilty but mentally ill at the time of the felony . . . shall be committed to an appropriate penal facility and shall be evaluated then treated, if indicated, within the limits of state funds appropriated therefor, in such manner as is psychiatrically indicated for his or her mental illness[.\

Decided October 28, 2016

Bruce S. Harvey, Jennifer S. Hanson, for appellant.

D. Victor Reynolds, District Attorney, Donald P. Geary, Michael S. Carlson, Assistant District Attorneys, for appellee.

(Emphasis supplied.)

However, the provisions of OCGA § 17-7-131 (g) (1) merely specify the respective obligations of the trial court and the penal facility following a conviction based on a verdict of guilty but mentally ill. Summerlin provides no authority to support her assertion that the trial court was obligated to instruct the jury that any required treatment would be dependent upon availability of State funding. As the trial court gave the applicable jury charges required by OCGA § 17-7-131 (b) (3), as well as other appropriate jury charges for this criminal case, we find no error.

Judgment affirmed.

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

       The criminal attempt to commit felony murder charges, aggravated assault charges, and aggravated battery charge were merged with the two counts of criminal attempt to commit malice murder.

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       Likewise, we need not address the parties’ dispute as to whether Summerlin’s motion for directed verdict should be treated as a general demurrer to the indictment, which can be asserted at any time, or as a special demurrer to the indictment, which would be untimely at trial. See Kain v. State, 287 Ga. App. 45, 48 (2) (650 SE2d 749) (2007) (addressingthe differences between a special demurrer and a general demurrer).

       We note that Summerlin does not challenge the sufficiency of the evidence with regard to her other convictions.

       OCGA § 16-5-1 (c) provides: “A person commits the offense of [felony] murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice." (Emphasis supplied.)

       Summerlin points out that the offense of malice murder requires intent, whereas the offense of felony murder does not.


author: PHIPPS, Presiding Judge.

text:
    A16A0812.
    WILLIAMS v. THE STATE.
    (793 SE2d 485)
   PHIPPS, Presiding Judge.

For the second time before this court, Bill Williams claims that the superior court erred by rejecting his quest for reprieve from his guilty plea. For the reasons that follow, we vacate the judgment and remand the case for proceedings consistent with this opinion.

Indicted in Cobb County Superior Court on multiple felony charges, Williams obtained counsel and pled guilty The court accepted Williams’s plea of guilty and imposed sentencing in early October 2007.

In mid-October 2007, representing himself, Williams filed a motion to withdraw his guilty plea. Williams asserted, inter alia, that his guilty plea had not been knowingly and voluntarily made, that his plea of guilty was not supported by factual bases, and that his plea counsel had rendered ineffective assistance. Additionally, Williams wrote a letter to the sentencing judge, stating, inter alia, “I feel that it’s in my best interest to retain better councel [sic].” That letter was filed in the superior court, together with Williams’s motion to withdraw his guilty plea.

On October 31,2007, the superior court denied Williams’s motion. While a defendant has a “right ... to appeal from the refusal of a motion to withdraw a guilty plea,” Williams did not do so.

Instead, as set out in Williams’s prior appeal, Williams u. State ('Williams I), Williams took the following actions:

Fifteen months after his guilty plea . . . , Bill Williams, acting pro se, filed a motion to vacate a null and void conviction and sentence. He appeals the trial court’s denial of that motion, arguing that his guilty plea was not voluntarily entered because his counsel rendered ineffective assistance.

Williams I did not reach the substance of that argument, explaining that it was untimely presented to the trial court:

It is well settled that when the term of court has expired in which a defendant was sentenced pursuant to a guilty plea the trial court lacks jurisdiction to allow the withdrawal of the plea.... Here, Williams’s motion to vacate his null and void conviction and sentence was filed on January 15, 2009, which was well beyond the term of court in which he was sentenced (October 7, 2007). See OCGA § 15-6-3 (11) (Cobb County Superior Court terms commence on the “Second Monday in January, March, May, July, September, and November” of each year). Accordingly, the trial court did not have jurisdiction to entertain Williams’s motion and thus did not err in denying it.

Once the case was remitted to the superior court, Williams, proceeding pro se, filed the motion underlying this appeal. Williams captioned it: “Motion for Out-Of-Time Appeal.” In such motion and accompanying brief, Williams recounted that he had been represented by counsel when he pled guilty. Williams alleged that he had thereafter instructed his plea counsel to submit a motion to withdraw his guilty plea, but that his plea counsel had failed to do so. According to Williams, plea counsel “abandoned” him; therefore, he resorted to representing himself so as to timely file a motion to withdraw his guilty plea. Williams complained that the superior court — without conducting an evidentiary hearing and without making any inquiry into whether he wished to be represented by counsel — denied the motion. Williams thus sought an out-of-time appeal, asserting that those circumstances — in particular, that his plea counsel had abandoned him, that no new counsel was appointed on his behalf, and that he “did not know how to [appeal]” — had deprived him of his right to a timely appeal from the denial of his motion to withdraw his guilty plea.

In addition, Williams claimed in his “Motion for an Out-of-Time Appeal” that “[i]t does not appear that the court has ever reduced [its] denial of Williams[’s] 10-17-07 motion to withdraw guilty plea to writing, thus he has never been afforded his rights to appeal either his 10-08-07 convictions or the denial of his 10-17-07 motion to withdraw guilty plea.” Williams thus requested, “[T]he court should either appoint counsel and conduct an evidentiary hearing upon the 10-17-07 motion to withdraw guilty plea, or reduce the order denying the 10-17-07 motion to writing/and permitting [sic] an out-of-time appeal on same.”

The superior court entered an order summarily ruling: “The Court, having read and considered the full record and Defendant’s Motion For Out-of-Time Appeal, hereby orders that said Motion be denied.” Pro se, Williams filed this direct appeal. As detailed below, Williams complains that the superior court neither vacated and re-entered the denial of his motion to withdraw his guilty plea, nor allowed an out-of-time appeal from the denial of that motion.

1. Williams maintains that the superior court “either entered an order denying the motion [to withdraw his guilty plea] which was not served upon Williams, or never reduced such an order to writing apparently” Citing Cambron v. Canal Ins. Co., Williams contends that “[s]ince the [superior] court has never reduced [its] order denying [his] 10/17/07 motion to writing, or properly served [him] upon [sic] as required by OCGA § 15-6-21^] the court should vacate any such order, and . . . re-enter said order” so that Williams may then directly appeal “that re-entered order.”

The record reveals that the superior court entered an order on October 31, 2007, denying Williams’s motion to withdraw his plea. Williams claims on appeal, however, that the superior court failed to provide him with the statutorily-mandated notice thereof. “Under Cambrón, when notice of the entry of an appealable order is not given, the losing party should file a motion to set aside, and the trial court should grant the motion and re-enter the judgment, whereupon the 30-day appeal period would begin to run again.”

Recently in Wright u. Young, the Supreme Court of Georgia disapproved Cambrón “[t]o the extent that Cambrón . . . states that notice must be sent and received in order to deny a motion to set aside.” Wright interpreted that “OCGA § 15-6-21 (c) only requires that the trial court give notice to the losing party. If the trial court has in fact given notice, then a motion to set aside may be properly denied whether or not the losing party actually received the notice.”

Williams filed no motion with a caption that included the words “set aside.” But in his (three-page) motion underlying the judgment at issue here, Williams plainly asserted that notice of the order had not been properly provided, then explicitly requested the superior court to set aside and re-enter that order. Accordingly, Williams’s motion adequately presented the issue “whether the duty imposed on the court in OCGA § 15-6-21 (c) was carried out.”

We cannot conclude from the record whether the superior court notified Williams of the denial of his motion to withdraw his guilty plea.

In addition, when it denied [the particular motion underlying the instant appeal], the [superior] court did not make any findings on the issue of notice. In such circumstances, the appellate courts have held that the order denying the losing party’s motion . . . must be vacated and the case remanded so that the [superior] court may make findings on the issue of whether notice was provided.

In accordance therewith, the judgment is vacated and the case is remanded.

If on remand the [superior] court finds notice was not given, then the [superior] court must . . . set aside the [denial of Williams’s motion to withdraw his guilty plea], re-enter the ... judgment, and allow the losing party 30 days from the re-entry date to seek appellate review. If the [superior] court finds that notice was given, then the motion to set aside should be denied.

Decided October 28, 2016.

Bill Williams, pro se.

2. We turn to Williams’s contention that the trial court erred by refusing to grant him an out-of-time appeal. In the motion underlying the judgment at issue here,

[Williams] sought an out-of-time appeal from the denial of his [October 2007] motion to withdraw his guilty plea. In Georgia, a defendant has a right to appeal directly the denial of his timely motion to withdraw a guilty plea. Where that right has been frustrated either through counsel’s negligence or through the trial court’s failure to inform the defendant of his right to appeal, the remedy is an out-of-time appeal. The disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal. Here, [Williams] pertinently contends that both his [plea] counsel and the [superior] court were responsible for the failure to file a timely appeal from the order denying the motion to withdraw his guilty plea, since they did not advise him of his appeal rights. If [Williams’s] contentions are found to have merit, then he would be entitled to have his motion for an out-of-time appeal granted. The [superior] court abused its discretion by failing to make a factual inquiry into the matter.

For this additional reason, the judgment underlying this appeal is vacated, and the case remanded for a hearing on this issue.

Judgment vacated and case remanded with direction.

Andrews, P. J., and Dillard, J., concur.

D. Victor Reynolds, District Attorney, Amelia G. Pray, Assistant District Attorney, for appellee.

       See generally McKiernan v. State, 286 Ga. 756-760 (692 SE2d 340) (2010) (explaining that defendant’s letter to the trial judge — asking to withdraw his guilty plea and requesting the court to appoint new counsel for trial, which letter was filed in the clerk’s office of the sentencing court — should have been treated as a motion to withdraw guilty plea, and thus vacating dismissal of defendant’s pleading and remanding the case for a hearing thereon).

        Spriggs v. State, 296 Ga. 542 (769 SE2d 392) (2015). See, e.g., Cobb v. State, 284 Ga. 74 (663 SE2d 262) (2008) (same); Carter v. Johnson, 278 Ga. 202, 205 (2) (599 SE2d 170) (2004) (“A defendant has a right to appeal directly the denial of his timely motion to withdraw a guilty plea.”) (citation and punctuation omitted; emphasis in original).

       301 Ga. App. 849 (689 SE2d 124) (2010).

       Id. Wiffia7i7s/wentontosetoutthatWilliamswasadditionally“arguing... that the trial court abused its discretion by failing to consider sentencing him under the First Offender Act.” Id. (footnote omitted). That contention, however, is not relevant to the disposition of this appeal.

       Id. at 850-851 (1) (citations and footnote omitted).

        Williams I cited that the superior court had denied Williams’s motion to withdraw his guilty plea, id. at 850, and further found noteworthy:
      [T]he record is unclear as to the reason Williams was not afforded a hearing on his motion to withdraw his guilty plea. Generally, such hearings are required so that on appeal, if sought, an appellate court can make a determination as to whether the trial court properly exercised its discretion in ruling on the motion. The record is also devoid of any evidence that the trial court advised Williams of his right to legal representation during the plea withdrawal proceedings.
      Id. at 850, n. 3 (citations omitted). See generally Barnes v. State, 293 Ga. 365 (744 SE2d 795) (2013) (“[T]he Sixth Amendment right to counsel attaches to the preparation and presentation of a motion to withdraw a guilty plea filed within the same term of court in which a criminal conviction is rendered.”); Pierce v. State, 289 Ga. 893, 894 (1) (717 SE2d 202) (2011) (acknowledging that an indigent defendant’s timely motion to withdraw guilty plea triggers the right to appointed counsel); Murrell v. Young, 285 Ga. 182, 183 (2) (674 SE2d 890) (2009) (recognizing that “one who has pled guilty is constitutionally entitled to the assistance of counsel to pursue a motion to withdraw his plea”); Banhi v. State, 252 Ga. App. 475 (555 SE2d 513) (2001) (vacating denial of motion to withdraw guilty plea and remanding case for trial court to hold necessary hearing, where “the trial court ruled on the motion to withdraw without holding a hearing, [and appellate court was thus] unable to make a determination as to whether the trial court properly exercised its discretion or abused the same”) (citation and punctuation omitted).

       See Cobb, supra (explaining that “where [the right to appeal directly from the denial of a motion to withdraw a guilty plea] is frustrated either through counsel’s negligence or through the trial court’s failure to inform the defendant of his right to appeal, the remedy is an out-of-time appeal”); see also Spriggs, supra.

       Williams’s motion and letter were dated October 17, 2007, and October 16, 2007, respectively; both were filed in the superior court on October 23, 2007.

       See generally Fairclough v. State, 276 Ga. 602, 603 (1) (581 SE2d 3) (2003) (describing that “the grant of an out-of-time appeal is the functional equivalent of the entry of a judgment”) (punctuation omitted).

       246 Ga. 147 (269 SE2d 426) (1980), disapproved to the extent stated in Wright v. Young, 297 Ga. 683, 684, n. 3 (777 SE2d 475) (2015).

       OCGA § 15-6-21 (c) pertinently provides that “it shall be the duty of the judge to file his or her decision with the clerk of the court in which the cases are pending and to notify the attorney or attorneys of the losing party of his or her decision”; see Whitfield v. State, 313 Ga. App. 297, 299 (1) (721 SE2d 211) (2011) (noting that notice requirements of OCGA § 15-6-21 apply also where losing party is a pro se criminal defendant).

        Pierce, supra at 894-895 (2) (citation and punctuation omitted). See also Wright, supra at 684 (same).

       Supra.

        Wright, supra at 684, n. 3 (emphasis in original).

       Id.

       Uniform Superior Court Rule 36.3 provides: “Every document or pleading presented for filing in a superior court shall bear a caption which sets out the exact nature of the pleading or the type of complaint.” (emphasis in original). “[HJowever, we must adhere to applicable legal principles, one of which is that there is no magic in mere nomenclature, even in describing pleadings. Under our rules of pleading, substance, not mere nomenclature, controls.” State v. Bell, 274 Ga. 719 (1) (559 SE2d 477) (2002).

        Wright, supra at 684 (citation and punctuation omitted).

       See generally id.

        Wright, supra (citations omitted). See, e.g., Pierce, supra.

        Wright, supra (citations and footnote omitted).

        Cruz v. State, 311 Ga. App. 527, 528 (716 SE2d 590) (2011) (citations, punctuation and footnotes omitted). See further, e.g., Cobb, supra at 75 (reversing judgment and remanding case to the trial court with direction to authorize an out-of-time appeal from the denial of defendant’s motion to withdraw his guilty plea, where the trial court denied defendant’s motion without informing him of the right to file a direct appeal therefrom).

       See Cobb, supra; Cruz, supra.