author: MCFADDEN, Judge.

text:
    A14A0457.
    WELDON v. THE STATE.
    (761 SE2d 566)
   MCFADDEN, Judge.

After a jury trial, Brian Weldon was convicted on numerous counts of armed robbery and aggravated assault in connection with a series of restaurant robberies. He argues on appeal that the trial court failed to comply with rules promulgated by the Supreme Court of Georgia regarding the use of noncertified court interpreters at trial, but he did not preserve this claim for appeal. He argues that his trial counsel’s failure to object to the use of the interpreters constituted ineffective assistance, but he has not shown he was prejudiced by that failure. Finally, he argues that the trial court erred in failing to rebuke the prosecutor for an improper statement made during closing argument, but, again, he did not preserve this claim for appeal. Accordingly, we affirm.

The state presented evidence at trial that, over the course of several days in March 2007, Weldon participated in the armed robbery of four DeKalb County restaurants. Some of the victims were struck or shot during the robberies. One of Weldon’s accomplices testified at trial about Weldon’s involvement in the robberies. The state presented similar transaction evidence that Weldon had committed armed robberies in other counties during the same time period. The state also presented evidence that one of the victims was shot with a gun belonging to Weldon. Numerous persons who were at the restaurants at the time of the robberies testified to the circumstances of those crimes. Several of those witnesses did not speak English, and the trial court used Cambodian-, Mandarin-, andKoreanspeaking interpreters to translate their trial testimony.

1. Use of court interpreters.

Weldon challenges the trial court’s use of the three interpreters, because they were not certified interpreters and, he argues, the trial court did not comply with the rules promulgated by the Supreme Court of Georgia for the use of noncertified interpreters.

The Supreme Court has promulgated rules “establishing a statewide plan for the use of interpreters in proceedings involving non-English speakers before any court or grand jury hearing in Georgia.” Ramos v. Terry, 279 Ga. 889, 891 (1) (622 SE2d 339) (2005). See Use of Interpreters for Non-English Speaking and Hearing Impaired Persons. In Ramos, the Supreme Court summarized those rules as follows:

[W]hen a party or witness to a covered proceeding requests an interpreter, the rules on use of interpreters envisage a pre-hearing examination of the non-English-speaking person by the court and appointment of an interpreter upon a judicial determination that the requestor does not understand and speak English well enough to participate fully in the proceeding. A court should make a diligent effort to appoint an interpreter certified by the Georgia Commission on Interpreters; if one is not available, the court is to give preference to a person on the list of registered interpreters^] Where . . . neither a certified nor a registered interpreter is available, the court should weigh the need for immediacy in conducting a hearing against the potential compromise of due process, or the potential of substantive injustice, if interpreting is inadequate. If the court decides to proceed with a less qualified interpreter, the court should give the less qualified interpreter specified written or oral instructions on basic rules of interpreting in a judicial setting, and when a non-professional interpreter is used, the court should, on the record, personally verify a basic understanding of the interpreter’s role[.] Every interpreter who serves in a Georgia court shall agree in writing to comply with the Code of Professional Responsibility for Court Interpreters.

Ramos, 279 Ga. at 891-892 (1) (citations and punctuation omitted). We review a trial court’s appointment of an interpreter for abuse of discretion. Id. at 892-893 (1).

Weldon argues that the trial court did not make a diligent effort to appoint certified interpreters (see Commentary to Use of Interpreters for Non-English Speaking and Hearing Impaired Persons, Rule I), did not appropriately instruct the interpreters (see Use of Interpreters for Non-English Speaking and Hearing Impaired Persons, Appendix A, Sec. II (F)), did not obtain the interpreters’ written agreement to comply with the Code of Professional Responsibility for Interpreters (see Use of Interpreters for Non-English Speaking and Hearing Impaired Persons, Rule VI (F)), and did not obtain written oaths from the interpreters (see Use of Interpreters for Non-English Speaking and Hearing Impaired Persons, Rule VI (B)).

It is an abuse of discretion for a trial court to
appoint someone to serve as an interpreter who is neither certified nor registered [nor conditionally approved] as an interpreter without ensuring that the person appointed is qualified to serve as an interpreter, without apprising the appointee of the role s/he is to play, without verifying the appointee’s understanding of the role, and without having the appointee agree in writing to comply with the interpreters’ code of professional responsibility.

Ramos, 279 Ga. at 893 (1). But we need not decide whether the trial court in this case abused its discretion in this manner, because Weldon acquiesced in the trial court’s use of the interpreters by failing to object to any of the interpreters and by expressly stating that he was “satisfied” with the use of two of the three interpreters. Consequently, as did the appellant in Ramos, Weldon has waived on appeal the issue of the trial court’s failure to comply with the rules governing the use of noncertified interpreters. See Ramos, 279 Ga. at 893 (2). Accord Craze. State, 305 Ga. App. 805, 808 (2) (700 SE2d 631) (2010); Duran v. State, 274 Ga. App. 876, 880 (4) (619 SE2d 388) (2005). “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal.” Compton v. State, 281 Ga. 45, 46 (2) (635 SE2d 766) (2006) (citation and punctuation omitted).

2. Ineffective assistance of counsel.

Weldon argues that his trial counsel’s failure to object to the interpreters constituted ineffective assistance. To prevail on this claim, Weldon “must show both that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense.” Pineda v. State, 288 Ga. 612, 615 (4) (706 SE2d 407) (2011) (citations omitted). “[A]n insufficient showing on either of these prongs relieves the reviewing court of the need to address the other prong.” Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004) (citation and punctuation omitted). In reviewing the trial court’s ruling on the ineffective assistance claim, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Pineda, 288 Ga. at 615 (4) (citation and punctuation omitted).

In this case, Weldon has made an insufficient showing on the prejudice prong. He speculates that parts of the interpretations were incorrect, but has not provided a correct interpretation of that testimony. He also criticizes the professionalism of an interpreter who interpreted a statement made by a similar transaction witness as the witness was leaving the stand, leading to the state recalling the witness and obtaining additional testimony about the similar transaction that was favorable to the state. But the witnesses requiring interpreters were only a part of the state’s case against Weldon. The state also presented testimony from victims and similar transaction witnesses who did not require interpreters, and it presented testimony from police officers and Weldon’s accomplice tying him to the crimes. Under these circumstances, Weldon has not shown that “there is a reasonable probability that, absent any unprofessional errors on counsel’s part, the result of his trial would have been different.” Pineda, 288 Ga. at 615 (4) (citation omitted). See also Holliday v. State, 263 Ga. App. 664, 669 (588 SE2d 833) (2003) (finding no merit in claim of ineffective assistance for failure to obtain independent interpreter to translate victims’ trial testimony where evidence of defendant’s guilt was overwhelming and evidence did not affirmatively show that any translation problems harmed defendant).

3. Closing argument.

Weldon argues that the trial court erred by not rebuking the prosecutor for a statement made during closing argument. Immediately beforehand, the trial court had sustained Weldon’s objection that the prosecutor had misstated the law regarding similar transactions. When the trial court instructed the prosecutor to “clarify,” the prosecutor stated:

Look. I will not be shut down. The truth has to be heard. Someone has to bring you the truth. That’s my job; that’s [co-counsel’s] job. We represent the [s]tate, the people of DeKalb County, in particular, you folks. You have to consider the evidence in this case[.]

Weldon argues that OCGA § 17-8-75 required the trial court to rebuke the prosecutor for this statement on the ground that it was prejudicial. OCGA § 17-8-75 provides:

Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.

Decided July 10, 2014.

Long D. Vo, for appellant.

Robert D. James, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

(Emphasis supplied.) OCGA § 17-8-75 “only requires the judge to act where counsel makes a timely objection.” Earnest v. State, 262 Ga. 494, 495 (1) (422 SE2d 188) (1992) (citation omitted).

Although Weldon claims that he objected to the allegedly prejudicial statement, the record shows that he did not do so. Instead, he objected — successfully — to an earlier statement made by the prosecutor that misstated the law. To the extent that the prosecutor failed to “clarify” his prior misstatement of the law or otherwise defied the trial court’s earlier ruling, the trial court was authorized to rebuke the prosecutor. But because Weldon did not object to the prosecutor’s statement that followed the trial court’s ruling, he did not preserve for review his claim that the trial court was required to rebuke the prosecutor for that statement. See Jackson v. State, 271 Ga. App. 317, 320 (3) (609 SE2d 643) (2004).

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.

       Certified interpreters and registered interpreters are defined at Use of Interpreters for Non-English Speaking and Hearing Impaired Persons, Appendix B, Powers and Duties of the Georgia Commission on Interpreters, Sec. II. In addition, there is now a category of conditionally approved interpreters who are to be given preference over registered interpreters. Id.


source: Caselaw Access Project

author: RAY, Judge.

license: Public Domain

text:
    A14A0462.
    BETTIS v. THE STATE.
    (761 SE2d 570)
   RAY, Judge.

A Richmond County jury found Roger Bettis guilty of two counts of aggravated assault (OCGA § 16-5-21), and one count each of criminal attempt to commit rape (OCGA § 16-4-1), kidnapping (OCGA § 16-5-40), and possession of a knife during the commission of a crime (OCGA § 16-11-106). He appeals from his convictions and the denial of his motion for new trial, contending (1) that the trial court erred in refusing to allow him to exercise his constitutional right to self-representation and (2) that his trial counsel was ineffective. For the reasons set forth below, we reverse.

Viewed in a light most favorable to the jury’s verdict, the evidence showed that on the evening of June 3,2009, M. S. was beaten by an assailant while she was in the ladies’ room at MCG Hospital in Augusta. M. S., whose husband was a patient at the hospital, went to the restroom on the fourth floor and entered a stall. Shortly thereafter, a man came into the bathroom, entered an adjacent stall, and climbed over the top of the stall and began choking M. S. The next thing M. S. remembered was a man’s voice telling her that she was going to be okay.

During the assault, another woman, T. K., entered the bathroom. T. K. heard a sound like a woman moaning and then encountered a man whose pants were down and whose boxer shorts were exposed. The man pulled out a knife and, after threatening to cut her and kill her, backed T. K. into a stall and ordered her to shut the door and be quiet. After the man left, she sought help. In a pre-trial photographic lineup and then at trial, T. K. identified Bettis as the man she had seen in the bathroom.

As a result of the assault, M. S. lost several teeth and suffered a dislocated jaw, heavy bruising around her eyes, and a lacerated lip, among other injuries. In the ladies’ bathroom, an investigator found a pool of blood and blood smears on the floor, the toilet, the toilet tissue dispenser, and the walls of the stall. The investigator also recovered a pair of women’s underwear “balled up and stuffed under the toilet bowl.”

Using the hospital’s surveillance video, police identified a suspect. Footage of the suspect, who was wearing a white T-shirt and “long black ... shorts” was provided to the media. Two days following the incident, an anonymous telephone caller advised police that Bettis was the man in the video. Police then went to the residence where Bettis was staying and interviewed Bettis’s mother, who told an investigator that Bettis was the man depicted in the video footage.

Police collected clothing from the bedroom where Bettis had been keeping his belongings, including a pair of shorts. Bettis’s mother told the officers that the shorts belonged to Bettis and that he had worn them on the night of the attack. There were blood stains on the shorts. A forensic biologist with the Georgia Bureau of Investigation testified that the DNA found on the stains originated from M. S. or her identical twin.

1. Bettis contends that the trial court erred in summarily denying his constitutional right to self-representation without following the procedures contemplated by Faretta v. California, 422 U. S. 806 (95 SCt 2525, 45 LE2d 562) (1975), and its progeny. The State argues that Bettis waived the right to represent himself. We are constrained to agree with Bettis.

Criminal defendants are guaranteed the right to self-representation under the federal and state constitutions. See Faretta, supra at 819-820 (III) (A); Seymour v. State, 312 Ga. App. 462, 464 (1) (718 SE2d 354) (2011); Ga. Const, of 1983, Art. I, Sec. I, Par. XII. To represent himself or herself, a defendant must knowingly and intelligently waive the constitutional right to counsel. See Faretta, supra at 835 (V); Lamar v. State, 278 Ga. 150, 152 (1) (b) (598 SE2d 488) (2004). Faretta requires that the trial court “apprise the defendant of the dangers and disadvantages inherent in representing himself so that the record will establish that he knows what he is doing and his choice is made with eyes open.” (Citations and punctuation omitted.) Lamar, supra at 152 (1) (b).

Further, to invoke the right of self-representation, the defendant must “make an unequivocal assertion of his right to represent himself prior to the commencement of his trial.” Thaxton v. State, 260 Ga. 141, 142 (2) (390 SE2d 841) (1990). Such a request “shouldbe followed by a hearing to ensure that the defendant knowingly and intelligently waives the right to counsel and understands the disadvantages of self-representation.” (Citation and punctuation omitted.) Crutchfield v. State, 269 Ga. App. 69, 71 (2) (603 SE2d 462) (2004).

The record shows that before the jury was selected, Bettis’s trial lawyer, Amanda Morris, informed the trial court that “Mr. Bettis has requested to address the Court regarding his representation and I advised him that he does have the right to do so if he wishes.”

The trial court asked to hear from Bettis, who stated:

BETTIS:... Sir, I’d like to ask to represent myself in my own business. I have not spoken to my lawyer, Ms. Morris, about four times only since she was — she got in contact with me the month of June of this year, of 2010. I only spoke to her this is like four times between the month of June and October. October — let me see, yesterday was the 17th, the first time I seen her in four months. Your Honor, we have not had time to prepare for a jury trial because I haven’t had time to sit down and talk to her about what’s in the evidence what’s been brought forth what’s in the case. At the same time, Your Honor — we’re not prepared — ready for the case, Your Honor. Your Honor, I’d like to ask, Your Honor, to please consent to allowing me to represent myself.

After Bettis spoke, the trial court asked to hear from the prosecutor and from Morris. The prosecutor stated that Bettis has “the right to represent himself. We certainly don’t oppose that.” Morris told the trial court that “if [Bettis] wants to represent himself I certainly won’t object to that.”

The trial court then ruled:

THE COURT: All right. Well, I’ll deny the request. I’ll give Mr. Bettis the opportunity to, of course, participate with you as well as the other members of the public defender’s office .... But it is a case while he may be entitled to represent himself it’s always best to be represented by an attorney who is trained and experienced in these matters. And so I’ll deny the request.

After the ruling, Bettis explained to the trial court that he was also asking to represent himself because his counsel, Morris, “had not been coming to see [him]... because she had been threatened by [the Sheriff].” Bettis further indicated that “they did not want me to reveal this . . . .” The following exchange then occurred:

THE COURT:... [0]f course when you testify you have the right to bring up matters within your defense, matters of concern and so forth. So you’ll have that opportunity at the point in the trial when the Court goes over that with you to make that decision.
BETTIS: I understand.

The State maintains that Bettis failed to make an unequivocal request to represent himself and so waived his right to self-representation. See Danenberg v. State, 291 Ga. 439, 441 (2) (729 SE2d 315) (2012) (finding that as appellant “sought to dismiss trial counsel and replace them with retained counsel, a public defender, or himself, appellant’s communication was not an unequivocal assertion of his right to represent himself”) (citation omitted). The State maintains that although Bettis “mentions” representing himself, his request was made in the context of expressing dissatisfaction with his attorney. Compare Thaxton, supra at 142 (2) (finding that appellant’s remarks could be construed as an expression of dissatisfaction with his trial counsel, not an unequivocal assertion of the right to self-representation). The State also argues that when Bettis stated that “we’re not prepared — ready for the case,” he was stating that he was not able to represent himself. Further, the State contends that Bettis expressly waived his right to self-representation when he responded “I understand,” after the trial court informed Bettis that if he testified he could “bring up matters ... of concern” to the defense.

Decided July 10, 2014.

Jessica I. Benjamin, Michael N. Brooks, for appellant.

We find that the State’s arguments lack merit. Bettis flatly requested that the trial court allow him to represent himself. The record shows, consistent with this request, that defense counsel, the prosecutor, and the trial court all understood that Bettis had asserted his right to self-representation. After Bettis unequivocally asserted his right to self-representation, the trial court did not, consistent with the procedure set forth in Faretta, supra, apprise Bettis of the dangers and disadvantages of proceeding pro se. See Lamar, 278 Ga. at 152 (1) (b). Rather, the trial court summarily denied Bettis’s request because “it’s always best to be represented by an attorney who is trained and experienced in these matters.” While we might agree with the trial court’s opinion, whether it was best for Bettis to be represented by an attorney was of no consequence. The test of whether a defendant has validly waived his right to be represented by counsel “is not whether the accused is capable of good lawyering — but whether he knowingly and intelligently waives his right to counsel.” Wayne v. State, 269 Ga. 36, 38 (2) (495 SE2d 34) (1998). See Lamar, supra at 153 (1) (b) (finding that trial court’s inquiries were “irrelevant to an assessment of [the defendant’s] knowing exercise of the right to defend himself”) (citation and punctuation omitted). Accordingly, because the record shows that Bettis “both wished to make and was mentally competent to make a knowing and intelligent waiver of his right to counsel, and the trial court employed the wrong standard for making this determination,” the trial court erred. (Citation and punctuation omitted.) Seymour, supra at 465 (1).

2. The evidence at trial was sufficient for a rational trier of fact to find beyond a reasonable doubt that Bettis was guilty of each charge. Accordingly, the State may retry Bettis on the two counts of aggravated assault and on criminal attempt to commit rape, kidnapping, and possession of a knife during the commission of a crime. Lamar, supra at 153 (2).

3. In light of our holding in Division 1, Bettis’s claims of ineffective assistance of counsel are moot.

Judgment reversed. Andrews,

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

Ashley Wright, District Attorney, Joshua B. Smith, Charles R. Sheppard, Assistant District Attorneys, for appellee.

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

       The defendant must also be mentally competent to waive the right to counsel, and “[t]he standard of mental competency to stand trial is the same as the standard of mental competency to waive the right to counsel.” Lamar, supra at 151 (a). Neither Bettis nor the State suggest that Bettis was not mentally competent to waive his right to counsel.


author: McFadden, Judge. Ray, Judge,

text:
    A14A0563.
    WORKMAN et al. v. CRISCO et al.
    (761 SE2d 574)
   McFadden, Judge.

A jury found in favor of defendants Larry Van-Thomas Crisco, M.D., and Northside Cardiology, P.C., in a medical malpractice action brought by Harold and Patricia Workman, and the trial court entered judgment on the verdict. The Workmans appeal. They argue that the defendants did not comply with their obligation to notify the Work-mans during discovery that an identified fact witness also would provide an expert opinion, and that, consequently, the trial court should have excluded the opinion testimony, postponed the trial to allow them to interview the witness, or declared a mistrial. The Georgia Civil Practice Act, however, did not require the defendants to identify the witness as an expert. Accordingly, we affirm.

In their lawsuit, the Workmans alleged that Mr. Workman was badly burned by exposure to a high dose of radiation during a cardiac catheterization and intervention procedure performed by Dr. Crisco on January 31,2008, at Saint Joseph’s Hospital of Atlanta. Dr. Crisco was in practice with Northside Cardiology. The record does not contain the Workmans’ discovery requests to the defendants or the defendants’ responses, but the parties appear to agree that, in their discovery responses, the defendants identified Dr. Richard Sankey as a fact witness but not an expert witness. Dr. Sankey was a physicist in Saint Joseph’s Hospital’s radiation oncology department and the hospital’s radiation safety officer at the time of Mr. Workman’s procedure.

In their consolidated pretrial order, both sets of parties listed Dr. Sankey as a “may call” witness. But at trial, at the start of the defendants’ case-in-chief, the Workmans moved the trial court to exclude any testimony of Dr. Sankey’s on the issue of the amount of radiation that Mr. Workman received during the procedure (the radiation dose). Their counsel represented that the prior evening he had learned that the defendants would be calling Dr. Sankey and that he assumed the defendants would use Dr. Sankey as an expert witness on the radiation dose issue. He argued that Dr. Sankey’s opinion on that issue would be based in part upon hearsay data provided by an outside company with which the hospital contracted to perform various tasks related to its radiation equipment. Invoking OCGA § 9-11-26, he argued that the defendants should not be allowed to elicit such an opinion from Dr. Sankey because they had not identified him as an expert witness. That Code section pertinently provides that, during discovery,

[a] party may, through interrogatories, require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

OCGA § 9-11-26 (b) (4) (A) (i).

The defendants’ counsel responded that the requirements of OCGA § 9-11-26 (b) (4) (A) (i) did not apply to Dr. Sankey’s opinion on the radiation dose issue, because Dr. Sankey was a fact witness in the case. He argued that Dr. Sankey had been deposed as a fact witness in his role as the hospital’s radiation safety officer, and that in that role he investigated Mr. Workman’s burn by making calculations regarding Mr. Workman’s radiation dose based on information he received from the outside company. The defendants’ counsel represented to the trial court that Dr. Sankey’s testimony was “not going to be some expert opinion that is independent... of the work that he did in investigating this particular situation.” The defendants’ counsel also represented to the trial court, without contradiction from the Workmans’ counsel, that during Dr. Sankey’s deposition the Work-mans’ counsel questioned him about his radiation dose calculations. (Dr. Sankey’s deposition transcript apparently was not made a part of the record.)

The trial court ruled that Dr. Sankey could “give expert opinions about what he was doing as a fact witness [,] . . . based on what he determined as a fact witness,” even if those opinions were based on hearsay. See former OCGA § 24-9-67.1 (a) (permitting expert opinion based upon inadmissible facts or data). The trial court also found that the testimony was not a surprise to the Workmans. Dr. Sankey proceeded to testify about the work he performed to investigate the radiation dose received by Mr. Workman, the information he received from the outside company in connection therewith, and his opinion regarding the radiation dose, and the Workmans’ counsel cross-examined Dr. Sankey on those issues.

We agree that OCGA § 9-11-26 (b) (4) (A) (i) did not require Dr. Crisco to identify Dr. Sankey as an expert witness. That Code section “applies only to experts whose knowledge of the facts and opinions held were acquired or developed in anticipation of litigation or for trial, and not to an expert witness who is in fact an actor or observer of the subject matter of the suit.” Stewart v. Odunukwe, 273 Ga. App. 380, 381 (615 SE2d 223) (2005) (citations and punctuation omitted). Dr. Sankey investigated the amount of radiation Mr. Workman received and reached an opinion on that issue in his capacity as the hospital’s radiation safety officer. Consequently, he was an actor or observer of the subject matter in this suit, and the requirements of OCGA § 9-11-26 (b) (4) (A) (i) did not apply to him. See Stewart, supra; McNabb v. Landis, 223 Ga. App. 894, 895 (2) (479 SE2d 194) (1996).

Decided July 10, 2014.

Jaffe & Haug, Adam S. Jaffe, James R. Haug, James M. Grant, Mark A. Kirchen, for appellants.

Huff, Powell & Bailey, Daniel J. Huff, L. Evan Cline, for appellees.

Moreover, “[t]he purpose of identifying witnesses is to eliminate the possibility of surprise to each party.” Stewart, 273 Ga. App. at 381 (citation omitted). The record reflects that the Workmans questioned Dr. Sankey about the radiation dose issue in his deposition. Having done so, “they cannot claim surprise by his testimony.” Id. at 382 (citation omitted). The trial court did not err in allowing the testimony. See id.; Kamensky v. Stacey, 134 Ga. App. 530, 532 (1) (215 SE2d 294) (1975).

Judgment affirmed.

Andrews, P. J., concurs. Ray, J., concurs in judgment only with special concurrence.

Ray, Judge,

concurring specially.

I write to explain why I join in the majority’s judgment in this case. Pretermitting whether Dr. Sankey was an expert witness or whether the Defendants were excused from identifying him as such in their response to the Plaintiffs’ discovery requests, clearly they cannot claim any harm when the gist of his testimony was discovered through his deposition and when they had ample opportunity to cross-examine him on his opinions during the trial of this case. Thus, I agree with the majority’s decision to affirm the verdict and judgment below.


author: DOYLE, Presiding Judge. MILLER, Judge,

text:
    A14A0570.
    HOOSLINE v. THE STATE.
    (761 SE2d 576)
   DOYLE, Presiding Judge.

Kim Marie Hoosline entered a negotiated guilty plea to possession of cocaine under OCGA § 16-13-2 (a), and she was sentenced to confinement for a period of five years to be served on probation. Following Hoosline’s failure to comply with the terms of her probation, the trial court revoked her probation and sentenced her to ten years, with five months to serve. Following our grant of Hoosline’s application for a discretionary appeal, she contends that the trial court erred by resentencing her to a term longer than her initial five-year sentence. For the reasons that follow, we vacate Hoosline’s sentence and remand the case.

When Hoosline entered her negotiated guilty plea in 2007, the prosecutor advised the trial court that Hoosline was pleading guilty to possession of cocaine and “[was] asking for a conditional discharge . . . , and she qualifies.” The trial court, in its colloquy with Hoosline regarding the constitutional rights she waived by pleading guilty, advised her that “upon [her] plea of guilty, [she] could be imprisoned for a maximum of [15] years and a fine of up to [$100,000] could be imposed.” After reviewing the terms of her probation, the court advised Hoosline that “the rules of probation require [strict compliance],.. . [a]nd we can revoke that conditional discharge in a heart beat if you break the rules.” The court then orally “sentence [d]” Hoosline under OCGA § 16-13-2 “to a period of five years.”

The trial court entered a sentencing form for Hoosline, which form adjudicated her guilty and sentenced her to five years “which may be served on probation.” The form contained a handwritten notation indicating that the guilty plea was entered under OCGA § 16-13-2 and contained an addendum for special conditions of probation, which addendum provided:

IT IS THE FURTHER ORDER of the [c]ourt, and the defendant is hereby advised that the [c]ourt may, at any time, revoke any conditions of this probation and/or discharge the defendant from probation. The probationer shall be subj ect to arrest for violation of any condition of probation herein granted. If such probation is revoked, the [c]ourt may order the execution of the sentence which was originally imposed or any portion thereof in the manner provided by law after deducting therefrom the amount of time the defendant has served on probation.

In March 2011, the State filed a petition to revoke Hoosline’s probation based on her failure to report to her probation officer, make payments toward her court-ordered fines, and make herself available for drug/alcohol screens. At the hearing, Hoosline conceded that she was “in violation of technical violations.” She argued, however, that the trial court could not impose a sentence that was longer than the five-year sentence she received in 2007. The trial court rejected Hoosline’s arguments and entered a final disposition form under OCGA § 16-13-2 revoking her conditional probation, adjudicating her guilty, and sentencing her to ten years, with five months to serve. Hoosline then filed an application for discretionary appeal, which this Court granted.

On appeal, Hoosline argues that the trial court erred by “resentencing” her to a term greater than the five years probation imposed when she entered her guilty plea. As explained below, because the trial court actually adjudicated Hoosline guilty and imposed a sentence when Hoosline entered her 2007 guilty plea, notwithstanding its apparent intention to accept the plea under OCGA § 16-13-2, it erred by subsequently resentencing her.

OCGA § 16-13-2 (a) provides that in certain drug cases, a trial “court may [—] without entering a judgment of guilt [—] . . . defer further proceedings and place [the defendant] on probation.” Under the statute, the defendant is not sentenced at the time the plea is entered, but is instead placed on probation. If the defendant fulfills the terms of her probation, she will be discharged, without an adjudication of guilt, and the proceedings against her will be dismissed.3 If the defendant violates the terms of her probation, however, the trial court may enter an adjudication of guilt and sentence the defendant.

Here, despite accepting Hoosline’s plea under OCGA § 16-13-2 (a), and instead of placing her on probation and deferring sentencing as contemplated by that Code section, the trial court adjudicated her guilty and sentenced her to five years to be served on probation.

[0]nce a defendant begins serving [her] sentence, that sentence can only be increased through resentencing where (a) such resentencing is allowed by law, and (b) the defendant has no reasonable expectation in the finality of the original sentence. Absent these circumstances, the resentencing constitutes a double punishment that runs afoul of the Fifth Amendment prohibition against double jeopardy. ... If the resentencing is not legislatively authorized or the defendant has a reasonable expectation in the finality of [her] sentence, the trial court may not increase the defendant’s sentence once [s]he has begun serving it.

Here, although OCGA § 16-13-2 authorizes a trial court to place a defendant on probation and thereafter, upon proof that she failed to comply with the terms of probation, adjudicate the defendant guilty and sentence her as provided by law, the statute does not authorize a trial court to sentence a defendant and then “resentence” her more severely, as the trial court did here. Because Hoosline was sentenced in 2007 and had begun serving her sentence, the trial court erred by sentencing her again in 2011. We therefore vacate the sentence and remand for proceedings consistent with this opinion.

Judgment vacated and case remanded.

Miller, J., concurs specially. Dillard, J., concurs in judgment only.

MILLER, Judge,

concurring specially.

Although I concur with the result reached by the majority, I write separately, because I do not agree that the defendant was in fact adjudicated guilty when the trial court accepted her guilty plea under OCGA § 16-13-2 (the Conditional Discharge Act) and sentenced her to five years on probation. Notably, the plea hearing transcript states that the defendant was sentenced to probation under OCGA § 16-13-2. After Hoosline failed to meet the terms of her probation, the State filed a petition for adjudication of guilt, which specifically stated that Hoosline was sentenced under the Conditional Discharge Act without an adjudication of guilt. At the hearing on the State’s petition, the State again pointed out that Hoosline was given five years probation under the Conditional Discharge Act and was not adjudicated guilty. Finally, the trial court’s order, in response to the State’s petition, specifically stated that Hoosline’s conditional discharge under OCGA § 16-13-2 is revoked and “she is adjudicated guilty” of possession of cocaine.

Decided July 10, 2014.

J. David Haskin, Benjamin D. Goldberg, for appellant.

D. Victor Reynolds, District Attorney, Jason D. Marbutt, Daniel J. Quinn, Assistant District Attorneys, for appellee.

Nevertheless, I agree that the trial court erred in sentencing Hoosline to ten years with five months to serve after revoking her conditional discharge. First, existing case law holds that once a defendant begins serving a sentence under OCGA § 16-13-2 the sentence may not be increased. See Perdue v. State, 155 Ga. App. 802, 803 (272 SE2d 766) (1980) (reversing judgment in which trial court sentenced defendant to serve five years consecutive to any other sentence he was presently serving after the trial court revoked the defendant’s three-year probationary sentence under Georgia Code Ann. § 79A-9917, the predecessor to OCGA § 16-13-2). Second, even assuming, as the State argues, that OCGA § 16-13-2 is analogous to the First Offender Statute (OCGA § 42-8-60) with regard to imposition of a greater sentence upon an adjudication of guilt, the trial court could not impose a greater sentence in this case because the trial court did not inform Hoosline at the time she entered her plea or in her original sentencing document that a greater sentence could be imposed upon revocation of her probation under OCGA § 16-13-2. See Mays v. State, 262 Ga. 90, 92-93 (2) (414 SE2d 481) (1992). For these reasons, I concur in the judgment only.

       OCGA § 16-13-30 (a).

       OCGA § 16-13-2 (a) authorizes a conditional discharge for first offenders in certain drug-related cases.

       See Andrews v. State, 276 Ga. App. 428, 430 (1) (623 SE2d 247) (2005) (“Under OCGA § 16-13-2 (a), the trial court has the discretion to withhold an adjudication of guilt and defer sentencing for drug-related crimes, with the possibility of a complete discharge and dismissal if the defendant successfully completes a probationary period.”) (emphasis supplied).

       See OCGA § 16-13-2 (a).

       See id.

       We note that the trial court used a standard sentencing form and added a handwritten note indicating that the plea was entered under OCGA § 16-13-2. Because a plea entered and accepted under OCGA § 16-13-2 is not an adjudication of guilt, this form incorrectly reflected an adjudication of guilt and sentence. Instead, in addition to orally explaining the provisions of OCGA § 16-13-2 when a plea is entered, a trial court should enter a document accepting a plea under OCGA § 16-13-2, deferring adjudication, and explicitly stating that successful completion of the terms of probation would result in a complete discharge and dismissal, while a violation of the terms of probation would result in an adjudication of guilt and sentencing on the underlying charge up to the maximum permitted by law.

       (Citations and punctuation omitted.) Williams v. State, 273 Ga. App. 42, 46 (6) (614 SE2d 146) (2005), citing Wilford v. State, 278 Ga. 718, 720 (606 SE2d 252) (2004).

       Cf. Wilford, 278 Ga. at 720 (holding that the defendant, who was sentenced under the First Offender Act, could have his sentence revoked and be resentenced because he “knowingly provided false information to the trial court in order to receive first offender treatment [and therefore had] no reasonable expectation that the resulting sentence [was] final”).

       See Wilkinson v. State, 283 Ga. App. 213 (1) (641 SE2d 189) (2006); Andrews v. State, 276 Ga. App. 428, 430 (1) (623 SE2d 247) (2005).


author: Ray, Judge.

text:
    A14A0627.
    In re ESTATE OF HELMS.
    (761 SE2d 579)
   Ray, Judge.

Jan Helms Rowell, beneficiary under the will of her late mother, Hazel Williams Helms (“the decedent”), appeals the probate court’s order settling the decedent’s estate. She also appeals from the probate court’s denial of her motion to make or amend findings of fact and conclusions of law and her motion for new trial. For the reasons that follow, we affirm in part, vacate in part, and remand the case with direction.

The relevant facts are as follows. The decedent died testate on November 4,2007. A copy of the will, dated May 25,1999, is not in the appellate record. However, the record shows that the four beneficiaries under the will are: Jan Helms Rowell, Charles Helms III (“Helms”), Bryan Helms, and Hollis Helms Erikson. Under the terms of the will, Rowell was to receive 50 percent of the residue, Charles Helms III was to receive 25 percent of the residue and Bryan Helms and Hollis Helms Erikson were each to receive 12y> percent of the residue. During the period between November 2007 through July 2011, the estate remained unrepresented while Rowell and Helms litigated the issue of who should serve as personal representative. In July 2011, both Rowell and Helms renounced their rights to serve as executor, and the probate court appointed Ann J. Herrera to serve as administrator with will annexed (the “Administrator”).

The Administrator filed a petition in the probate court for Final Settlement of Accounts and Approval of Distribution Plan (the “Plan”) pursuant to OCGA § 53-7-62. In addition to a distribution of the estate’s assets, a part of the Plan set forth in the petition consisted of a resolution of disputes and claims against Rowell. Helms, Bryan Helms and Hollis Helms Erikson each consented to the Administrator’s petition, but Rowell did not. Rowell responded to the Administrator’s petition with an alternative proposal.

A hearing was held before the probate court. See OCGA § 53-7-63 (the probate court is authorized to hear evidence on disputed issues and “make a final settlement between the personal representative and the heirs or beneficiaries”). In its order adopting the Administrator’s proposed Plan, the probate court noted that Rowell’s 50 percent share of the estate’s remaining assets (after administrative expenses) totaled $364,934.46. However, the Plan also reduced the assets to be received by Rowell “based on [her] previous actions regarding estate assets and the cost to the estate.” By adopting the Plan, the probate court authorized the Administrator to distribute to Rowell, inter alia, the estate’s 50 percent interest in a duplex home, which interest the Administrator valued at $185,755, all furniture located in the duplex valued at $15,995, title to two vehicles valued at $1,500 and stock valued at $100,000. The amount of distribution to Rowell corresponded to an approximately $61,684 reduction in her 50 percent testamentary share.

1. Rowell challenges the probate court’s factual findings concerning the amount by which her 50 percent testamentary share was reduced. She claims that the probate court erred by adopting the Plan without evidence to support the $61,684 reduction in her testamentary share. We agree.

On appellate review, we will not set aside the probate court’s factual findings unless they are clearly erroneous, deferring to the court’s opportunity to judge the credibility of the witnesses. The clearly erroneous test is the same as the “any evidence” rule. Thus, where the probate court’s findings of fact are supported by any evidence, they will be upheld on appeal.

(Footnotes omitted.) In re Estate of Long, 307 Ga. App. 896, 898 (2) (706 SE2d 704) (2011).

Consistent with the testimony adduced at the hearing, the probate court found that during the four years between her mother’s death and the probate court’s appointment of the Administrator, “Rowell acted as a fiduciary without court appointment [and] collected assets belonging to [d]ecedent... prior to [d]ecedent’s death.” More specifically, the probate court found that Rowell “received approximately $125,000.00 from the sale of an easement belonging to [d]ecedent; collected $14,500.00 in rental receipts from the [d]uplex; and received dividends from the Coca-Cola Stock” and placed these funds in accounts over which she maintained exclusive possession and control. It further found that Rowell “had used estate funds to pay expenses related to non-probate assets as well as her own personal and family expenses ... [and] did not pay taxes, leaving the estate responsible for payment of overdue taxes plus penalties and interest.” The Administrator testified that, following the Administrator’s appointment, Rowell transferred only $1,540 to the estate.

The Administrator further testified that Helms had provided her with documentation, with “backup and the checks,” of $26,400 estate funds that were spent by Rowell on nonestate or partially nonestate expenses. 3*The Administrator elected, however, not to pursue a forensic accounting to determine what Rowell had done with the estate funds. Apart from the $26,400, there was a lack of testimony as to Rowell’s use of estate funds or as to the cost to estate of Rowell’s acts or omissions. Nor did the probate court make any finding, apart from the expenditure of the $26,400, as to the cost to the estate of Rowell’s actions.

At the commencement of the hearing, Rowell’s counsel argued that at issue was $172,000 in funds that had been deposited into a joint checking account. Counsel argued that Rowell had paid estate expenses out of that account, and that, acting as an executor “de facto,” Rowell had acted appropriately with respect to the funds. Counsel then proposed that Rowell pay for an accounting and represented that “we welcome an audit.” However, Rowell did not present any evidence at the hearing as to how she spent the estate funds that had been in her possession.

In her petition, the Administrator claimed that the Plan was fair and reasonable and in accordance with the intent and provisions of the decedent’s will. See In re Estate of Nesbit, 299 Ga. App. 496, 499-500 (1) (682 SE2d 641) (2009) (probate court was authorized to make a final settlement between personal representative and the beneficiaries and it did so, “concluding based on the evidence presented that the proposed distribution plan was fair and reasonable”). It is undisputed, however, that the decedent intended for Rowell to receive half of the estate and that the Administrator proposes to distribute less than half of the value of the remainder to Rowell. Thus, absent something more, the intentional distribution of less than half of the estate’s value to Rowell cannot be consistent with the decedent’s intent and the duty of the personal representative “to act in the best interests of all persons who are interested in the estate and with due regard for their respective rights.” OCGA § 53-7-1 (a). Compare Harp v. Pryor, 276 Ga. 478, 479 (578 SE2d 424) (2003) (noting that “[i]n most cases, distributions in kind from different classes of property that result in equal beneficiaries receiving equal value would not show a violation of the executor’s duty”).

The Administrator did not identify, either below or on appeal, how she arrived at the amount of the specific reduction in Rowell’s share contemplated by the Plan. Rather, she argues that there was no legal requirement that she “present the specific dollar-by-dollar calculation for the reduction made to [Rowell’s] share,” and that the reduction was consistent with the exercise of her discretion to make adjustments to the share of a beneficiary. It is undisputed that the decedent’s will incorporated the provisions of former OCGA § 53-12-232. Thereunder, the Administrator is authorized “[t]o compromise, adjust, arbitrate, bring or defend actions on, abandon, or otherwise deal with and settle claims in favor of or against the estate or trust as the fiduciary shall deem advisable[.]” OCGA § 53-12-232 (23) (1999). Although it appears that the decedent had vested the Administrator with discretion in pursuing claims on behalf of the estate, it does not follow that the Administrator could arbitrarily choose an amount by which the value of Rowell’s distributive share should be adjusted based upon a possible claim against Rowell by the estate or other beneficiaries.

The probate court also found, however, that the Administrator proposed to reduce the amount distributed to Rowell based on Row-ell’s previous actions regarding estate assets and the cost to the estate. In the context of an action under OCGA § 53-7-62, the probate court may “hear evidence upon any contested question.” OCGA § 53-7-63. Thus, to the extent that the evidence showed that Rowell had converted estate funds or expended estate funds on nonestate assets, such that those monies were no longer available for distribution, or had otherwise damaged the estate, the probate court would have had a basis for reducing the value of Rowell’s distributive share. See, e.g., Fowler v. Cox, 264 Ga. App. 880, 887 (1) (a) (vi) (592 SE2d 510) (2003) (probate court’s reduction of net estate distributed to executrix “did no more than correct for breaches of fiduciary duty”). However, the Administrator presented no evidence which showed that Rowell’s actions had cost or otherwise damaged the estate in the amount of $61,684. The Administrator suggests that inasmuch as Rowell came into possession of estate funds and “paid Estate bills at her own discretion with no oversight,” it was Rowell’s burden to show that she had acted appropriately with estate funds. However, the Administrator elected not to file any legal action for an accounting against Rowell, nor did the probate court order Rowell to make an accounting. See OCGA § 24-14-1 (2012) (“The burden of proof generally lies upon the party who is asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential”); Peterson v. Willbanks, 157 Ga. 382, 387 (121 SE 326) (1924) (as the action was not for an accounting, the burden of showing the fact at issue was on parties asserting it). Thus, we agree with Rowell that the probate court erred in authorizing the reduction in the value of her distributive share by $61,684, and we vacate the probate court’s order in part and remand the case for a determination of the appropriate amount, if any, of such reduction. See In re Estate of Knapp, 326 Ga. App. 486, 492 (756 SE2d 716) (2014) (vacating probate court’s order and remanding the case where the probate court failed to make findings sufficient to disallow appellant from taking his share of the estates); In re Estate of Long, supra at 901 (3) (remanding case for the probate court to determine whether, and in what amount, beneficiaries owed money to the estate).

2. Rowell also asserts that the probate court erred in accepting the Administrator’s valuation of the duplex property. We disagree.

The Plan contemplated that Rowell receive the estate’s one-half interest in the duplex property. The Plan valued that interest at $185,755, which is approximately half of the duplex’s insurance replacement value of $371,511. In its order, the trial court found that the Administrator based her valuation on the insurance replacement value and accepted the Plan’s valuation. Rowell presented the testimony of a residential appraiser who opined that the value of the duplex was $235,000, and that, taking into account the limited marketability of a half-interest in the property, the value of the estate’s interest in the duplex was $100,000. In its order, the probate court found Rowell’s expert witness to be not credible because he valued the one-half interest without knowledge that Rowell and Helms were co-trustees of a trust that was the other 50 percent owner of the duplex and because the comparable sales utilized by the appraiser were “almost non-existent.”

Rowell argues that the trial court erred because the Plan’s valuation was inconsistent with the Administrator’s testimony that she had intended to value the duplex between the tax values and the insurance replacement cost. She further contends that the Administrator’s opinion of value was speculative and an insufficient basis for the trial court’s approval of the Plan.

Pertinent to this dispute, under former OCGA § 53-12-232 (27) (1999) the fiduciary is authorized

[t]o make distribution of capital assets of the estate or trust in kind or in cash, or partially in kind and partially in cash, in divided or undivided interests, as the fiduciary finds to be most practicable and for the best interests of the distributees, and the fiduciary may distribute types of assets differently among the distributees; and to determine the value of capital assets for the purpose of making distribution thereof if and when there are more than one distributee thereof, which determination shall be binding upon the distributees unless clearly capricious, erroneous, and inequitable.

Further, “[t]he courts will not ordinarily interpose to restrain the execution of a power, except where abuse of discretion, bad faith, or fraud is shown, or where the power is attempted to be exercised in a manner different from that authorized by the donor.” (Citation and punctuation omitted.) Cates v. Cates, 217 Ga. 626, 632 (3) (124 SE2d 375) (1962).

The Administrator testified at some length about her valuation of the duplex. Her direct testimony showed that she considered the tax valuation of the duplex as demonstrating that the value of the property had decreased over time following the death of the decedent, and that she considered it “disingenuous” for Rowell to have controlled the property during that time and then have asked for “it at its lowest value.” Although she also indicated on cross-examination that she had intended to value the property “somewhere” between the insurance replacement value and the tax value, we are unpersuaded that the probate court was required thereby to reject the valuation assigned to the property under the Plan. Rather, the evidence showed that the value assigned to the Estate’s interest in the duplex corresponded to half of the insurance replacement value of the property, and Rowell’s questioning of her own expert indicated that replacement cost was a possible approach for the valuation of property. Accordingly, we conclude that the probate court was not required to find the Administrator’s determination of value to be capricious, erroneous, and inequitable, and it did not err in accepting the Administrator’s valuation. See Cates, supra at 633-634 (3) (finding that executors were not shown to have acted capriciously, in bad faith, or fraudulently in relying on a third party to value real estate for purposes of distribution).

Decided July 10, 2014.

Lefkoff, Duncan, Grimes, McSwain & Hass, John R. Grimes, for appellant.

Ann J. Herrera, Jackson L. Culbreth, for appellees.

3. Rowell further claims that the probate court erred in refusing to hear testimony from Rowell regarding her accounting of estate assets, in denying her post-judgment motion to amend its findings of fact and conclusions of law, and in denying her motion for new trial. In light of our findings in Divisions 1 and 2, supra, these claims of error are moot.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Andrews, P. J., and McFadden, J., concur.

       OCGA § 53-7-62 (a) states, in relevant part:
      Any person interested as an heir or beneficiary of an estate or the probate court may, after the expiration of six months from the granting of letters, cite the personal representative to appear before the probate court for a settlement of accounts. Alternatively, . . . the personal representative may cite all the heirs or beneficiaries ... to be present at the settlement of the personal representative’s accounts by the court. The settlement shall be conclusive upon the personal representative and upon all the heirs or beneficiaries [.]

       Consistent with the Administrator’s testimony, the probate court found that the evidence of Rowell’s expenditures of estate funds on nonprobate assets “included $7,400.00 for Rabun County Property; $1,500.00 in personal expenses; $10,000.00 for the Rockdale County Enterprises, LP and $7,500.00 in expenses related to the Duplex.” For purposes of this appeal, Rowell does not challenge the competency of the Administrator to testify as to Rowell’s expenditure of the $26,400.

       Rowell acknowledged the Administrator’s power to settle the estate, but objected to the fairness and reasonableness of the distribution under the Plan.

       Chapter 12 of Title 53 of the Official Code of Georgia Annotated was repealed in 2010 and a new Chapter 12 was enacted. See Ga. L. 2010, p. 579. Under current OCGA § 53-12-263 (d) (1),
      [a] provision in any will or trust instrument which incorporates powers by citation to.. .former Code Section... 53-12-232... which were in effect at the time the trust was created and which was valid under the law in existence at the time the will was signed by the testator... shall be effective notwithstanding the subsequent repeal of such statute.

       Nor does it appear that Helms and the other beneficiaries, who consented to the Plan, pursued any separate claim against Rowell for damages. See OCGA § 53-6-2 (providing that a person who intermeddles with or converts property of a decedent whose estate is unrepresented is liable to beneficiaries for double the value of the property so possessed or converted).

       The hearing before the probate court was held in October 2012, before the January 1, 2013, effective date of the new Evidence Code.

       A lower valuation of the real estate would have benefitted Rowell because, as the Administrator acknowledged, Rowell would have then received additional cash or stock.


author: DOYLE, Presiding Judge.

text:
    A14A0694.
    DEPARTMENT OF TRANSPORTATION v. KOVALCIK et al.
    (761 SE2d 584)
   DOYLE, Presiding Judge.

The Georgia Department of Transportation (“DOT”) appeals from the trial court’s denial of its motion seeking dismissal of tort claims brought by Edward and Bernadette Kovalcik, as parents of Stephanie Kovalcik (deceased), and Edward Kovalcik as administrator of Stephanie’s estate. The DOT argues that the trial court erred by ruling that the Kovalciks’ claims were not barred by sovereign immunity. For the reasons that follow, we affirm in part and reverse in part.

“We review de novo a trial court’s denial of a motion to dismiss based on sovereign immunity grounds, which is a matter of law. However, factual findings by the trial court in support of its legal decision are sustained if there is evidence authorizing them.”

The evidence shows that the DOT, the City of Atlanta, and the Buckhead Community Improvement District (“BCID”) began planning a road improvement project to redesign a portion of Peachtree Road (“Project”), a State route within the City limits. In February 2004, the DOT and the City entered into an agreement to undertake certain improvements including the Project. The agreement stated that the City would

accomplish all of the design activities for the project... in accordance with the [DOT’s] Plan Development Process, the applicable guidelines of the American Association of State Highway and Transportation Officials . . . , the [DOT’s] Standard Specifications Construction of Roads and Bridges, the [DOT’s] Plan Presentation Guide, Project schedules, and applicable guidelines of the [DOT].

The contract further provided that the DOT

shall review and has approval authority for all aspects of the Project provided however this review and approval does not relieve the City of its responsibilities under the terms of this agreement. The [DOT] will work with the [Federal Highway Administration] to obtain all needed approvals with information furnished by the City.

Pursuant to an agreement between the BCID and the City, the BCID retained URS Corporation to deliver construction plans that included road design, signage, pavement markings, curbs, traffic signals, and landscaping. URS prepared the plans and, through an iterative process of review and feedback, the DOT approved them.

In January 2006, the DOT awarded a construction contract to Infrasource Paving and Concrete Services, and contracted with Parsons Brinkerhoff Shuh & Jernigan (“PBSJ”) to provide construction, engineering, and inspection services for the Project. Under the PBSJ contracts, the firm “shall be responsible for construction inspection,” and “[i]t shall be the responsibility of [PBSJ] to provide services to ensure that the project is constructed by [Infrasource] in reasonably close conformity with the plans, specifications [,] and other contract provisions.” DOT employee Darrell Williams monitored construction progress, attended meetings on behalf of the DOT, and served as a liaison between the DOT and PBSJ.

Active construction ended in October 2007, and a final inspection was performed in January 2008. On a rainy night in March 2008, Cameron Bridges approached the intersection in Stephanie’s car with her as his passenger. The complaint alleges that Bridges was heading south on Peachtree Road, and, intending to turn left onto Piedmont Road, Bridges entered what he believed to be the left-hand turn lane. Instead, the vehicle entered a short left-hand turn lane immediately preceding the Piedmont intersection so that drivers could turn left into a parking lot at the northeast corner of Peachtree and Piedmont. This shorter turn lane was bounded by a concrete divider, which allegedly caused the vehicle to roll when Bridges mistakenly drove into it.

Stephanie died of injuries she suffered in the crash, and the Kovalciks filed suit against the DOT, the City, BCID, URS, PBSJ, and others. The Kovalciks’ complaint includes negligence claims against the DOT for allegedly failing to ensure the roadway was safe for use by the public, failing to provide adequate signage or warning of the traffic barriers, and negligently designing the roadway. The DOT answered, asserting sovereign immunity, and following discovery, the DOT moved to dismiss on sovereign immunity grounds. The trial court, in a one-sentence order, denied the motion, giving rise to this appeal.

1. (a) Inspection function under OCGA § 50-21-24 (8). The DOT argues that the trial court erred by permitting the Kovalciks’ negligent design claim to go forward because of the inspection function exception to liability under the Georgia Tort Claims Act (“GTCA”). We disagree.

Ordinarily, pursuant to the Georgia Constitution of 1983, the State is immune from suit under the sovereign immunity doctrine:

[Sovereign immunity extends to the [S]tate and all of its departments and agencies. The sovereign immunity of the [S]tate and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.

“As a general rule, the sovereign immunity of the State and its departments is waived by the [GTCA] for ‘the torts of [S]tate officers and employees acting within the scope of their official duties or employment,’ ” subject to certain exceptions. As a department of the State, the DOT is subject to the waiver and the exceptions set forth in the GTCA.

One exception is codified at OCGA § 50-21-24 (8), which provides as follows:

The [S]tate shall have no liability for losses resulting from: . . . [inspection powers or functions, including . . . making an inadequate or negligent inspection of any property other than property owned by the [SJtate to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety[.]

Here, the DOT argues that it did not draft the construction plans, and it is immune from any liability stemming from its inspection of the plans prepared by URS. The DOT does not dispute, however, that Peachtree Road, a State route, is a roadway owned by the State; instead, it argues that the plans themselves were not “property owned by the State,” so it was immune for any liability arising from its inspection of the plans.

The Kovalciks point to evidence that the DOT participated in the inspection of the construction site itself to determine compliance with the plans, DOT guidelines, and completion of construction. Thus, they argue that the DOT’s inspection was not merely of the plans, but also of the newly configured roadway itself. In light of the emphasized language above (from OCGA § 50-21-24 (8)), we agree that immunity is waived to the extent that the DOT’s role included inspection of the State roadway and intersection itself to detect hazards or to determine compliance with laws, regulations, codes, or ordinances. This case is the converse of Magueur v. Dept. of Transp., in which this Court addressed the DOT’s immunity from a complaint alleging that the DOT violated a duty to notify a county that a county roadway, as designed and constructed by the county and approved by the DOT, contained safety hazards. The Court ruled that, even assuming the DOT had such a duty, it was immune because the duty involved an inspection power or function of property not owned by the State. In so holding, the Court explained, “we see no principled distinction between an inspection of physical property to determine whether it complies with accepted safety standards and an inspection of construction plans to determine whether the property, once constructed, will comply with such standards.”

In the present case, we likewise find no meaningful distinction arising from the DOT’s argument that it only inspected the construction plans, which it did not own. There is evidence that the DOT’s role included both approving construction plans and inspecting the physical property for compliance with DOT standards as built in accordance with those plans. Accordingly, because it is undisputed that the roadway inspected by the DOT is owned by the State, the inspection powers exception to State liability in OCGA § 50-21-24 (8) does not, by its own terms, apply to the DOT’s inspection of that roadway.* This holding is limited to the immunity defense before us, and we do not reach any further questions as to the DOT’s actual role in this case or as to the DOT’s duty under the circumstances.

(b) Licensing powers exception under OCGA § 50-21-24 (9). The DOT also argues that, to the extent that the Kovalciks’ claim is based on negligent approval of defective construction plans or failure to deny approval of defective construction plans, such a claim is barred by the licensing powers exception to liability under the GTCA. The Kovalciks point out that the DOT did not raise this argument in the trial court and argue that we should therefore not consider it. But “[sovereign immunity of a [S]tate agency is not an affirmative defense, going to the merits of the case[; instead it] raises the issue of the trial court’s subject matter jurisdiction to try the case.”

[L]ong-standing statutory and case law requires] courts to dismiss an action “whenever it appears, by suggestion of the parties or otherwise, that the court lacks jurisdiction of the subject matter.” The court’s lack of subject-matter jurisdiction cannot be waived and may be raised at any time either in the trial court, in a collateral attack on a judgment, or in an appeal.

In certain limited circumstances, there may be some equitable arguments precluding such a defense, but such is not the case here because the DOT asserted its immunity in its complaint and in its dismissal motion. Therefore, we will address the DOT’s argument here.

The DOT argues that to the extent the Kovalciks’ theory of liability stems from its allegedly negligent approval of URS’s design plans, the DOT’s decisions during the approval process of the plans qualify for the licensing powers exception under OCGA § 50-21-24 (9), which provides as follows:

The [Sjtate shall have no liability for losses resulting from: . . . [licensing powers or functions, including, but not limited to, the issuance, denial, suspension, or revocation of or the fail-ure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization [.]

The DOT relies on cases where the DOT authorized a county’s request to install a traffic light, the DOT granted a permit to build a commercial driveway, and the DOT approved construction of a decorative wall on top of an existing retaining wall at an intersection on a State route. In each of these cases, this Court held that the DOT was immune under the licensing powers exception of the GTCA. We find these cases persuasive under the facts here. Therefore, to the extent that any of the Kovalciks’ claims are predicated on the DOT’s improper authorization of the plans or Project, the DOT is immune.

Decided July 10, 2014.

Samuel S. Olens, Attorney General, Shingler Lewis, George P. Shingler, Ashley E. Wilson, for appellant.

Robin F Clark, Deitch & Rogers, Andrew T. Rogers, for appellees.

2. The DOT also argues that the trial court erred by failing to dismiss the negligent inspection claim because under the GTCA, the DOT is not liable for the torts of independent contractors. The DOT points to its contract with PBSJ in which PBSJ agreed to provide “construction inspection, field materials sampling and testing, and assisting [DOT] engineers with contract administration . . . [and] services to ensure that the project is constructed by the contractor in reasonably close conformity with the plans, specifications, and other contract provisions.” The DOT is correct that under OCGA § 50-21-22 (7), which defines “State officer or employee” for purposes of the GTCA, State actors do not “include an independent contractor doing business with the [S]tate.” Thus, the GTCA’s waiver of immunity does not extend to the acts of independent contractors, including PBSJ in this case.

Nevertheless, the DOT’s contract with PBSJ did not take the DOT entirely out of the equation with respect to the Project. The Kovalciks’ complaint alleges several acts by the DOT that they contend were wrongful. For example, there is evidence that DOT employees inspected the Project site itself and made recommendations for changes based on perceived errors or flaws. Thus, the mere presence of contractors performing services on behalf of the DOT does not relieve the DOT from potential liability for its own actions. Accordingly, this argument presents no basis for reversal.

Judgment affirmed in part and reversed in part.

Miller and Dillard, JJ., concur.

       The DOT’s motion was styled as a motion for summary judgment seeking dismissal of the suit. For purposes of this appeal, we refer to it as a motion to dismiss.

       Arelated case, City of Atlanta v. Kovalcik, Case No. A14A0768, is pending in this Court’s April 2014 term. The cases arise from the same proceeding, and on motion by the appellees in each case, we have consolidated the records for both appeals.

       (Punctuation omitted.) Ga. Dept. of Corrections v. James, 312 Ga. App. 190, 193 (718 SE2d 55) (2011). See generally Dept. of Transp. v. Dupree, 256 Ga. App. 668, 673 (1) (b) (570 SE2d 1) (2002) (“under OCGA § 50-21-24, waiver of sovereign immunity maybe a mixed question of law and fact for the trial court’s determination”).

       The BCID is a taxation entity of local government created by law pursuant to the Georgia Constitution of 1983, Art. IX, Sec. VII, Par. I.

       Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e).

       (Citation and punctuation omitted.) Ga. Dept. of Human Svcs. v. Spruill, 294 Ga. 100 (751 SE2d 315) (2013).

        See Bruton v. Dept. of Human Resources, 235 Ga. App. 291, 293 (509 SE2d 363) (1998).

       (Emphasis supplied.)

       248 Ga. App. 575 (547 SE2d 304) (2001).

       Id. at 577. See also Comanche Constr. v. Dept. of Transp., 272 Ga. App. 766, 768 (2) (613 SE2d 158) (2005) (“The phrase ‘inspection powers or functions’ includes both an inspection of physical property to determine whether it complies with accepted safety standards, as well as a review of construction plans for such compliance.”) (physical precedent only).

       Cases to the contrary cited by the DOT all involve property not owned by the State. See, e.g., Comanche Constr., 272 Ga. App. at 768-770 (physical precedent only; county owned); Magueur, 248 Ga. App. at 575 (county owned). Compare Welch v. Ga. Dept. of Transp., 283 Ga. App. 903, 906 (1) (642 SE2d 913) (2007) (to prevail on a tort claim based on the DOT’s failure to inspect for hazardous vegetation, plaintiffs “must show that the vegetation [on private property] extended into DOT’s right-of-way”).

        Dupree, 256 Ga. App. at 671 (1). See also Murray v. Ga. Dept. of Transp., 284 Ga. App. 263, 265 (2) (644 SE2d 290) (2007) (“any suit brought to which [a GTCA] exception applies is subject to dismissal pursuant to OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction”).

       (Punctuation omitted.) Abushmais v. Erby, 282 Ga. 619, 622 (3) (652 SE2d 549) (2007), citing OCGA § 9-11-12 (h) (3).

       See id. at 622-623 (3).

       See Murray, 284 Ga. App. at 265 (1) (physical precedent only).

       See Dept. of Transp. v. Cox, 246 Ga. App. 221, 224 (540 SE2d 218) (2000).

       See Dept. of Transp. v. Bishop, 216 Ga. App. 57 (453 SE2d 478) (1994).

       The holdings herein are not inconsistent. “[S]imply because [DOT] may have waived immunity on [one] claim does not mean that it waived immunity on [another] claim.” Diamond v. Dept. of Transp., 326 Ga. App. 189, 191 (1) (756 SE2d 277) (2014).

       See Johnson v. Ga. Dept. of Human Resources, 278 Ga. 714, 717 (2) (606 SE2d 270) (2004) (“The Georgia General Assembly has spoken by removing from the pool of State employees covered by the [GTCA] independent contractors. . . .”).


author: McFadden, Judge.

text:
    A14A0715.
    MURRAY v. THE STATE.
    (761 SE2d 590)
   McFadden, Judge.

After a jury trial, Omega Murray was convicted of burglary. He appeals, challenging the sufficiency of the evidence, a variance between the indictment and proof at trial, the denial of a continuance, the refusal to remove a juror, and the use of his prior guilty pleas to impose a recidivist sentence. However, there was sufficient evidence to support the verdict, the variance complained of did not affect Murray’s substantial rights, the trial court did not abuse its discretion in denying a continuance or in refusing to remove the juror in question, and Murray has shown no irregularity with any of the pleas used for recidivist sentencing. Accordingly, we affirm.

1. Sufficiency of the evidence.

Murray contends that there was insufficient evidence to support his burglary conviction. The contention is without merit.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Williams v. State, 326 Ga. App. 418, 419 (1) (756 SE2d 650) (2014) (citation omitted).

So viewed, the evidence shows that on June 7, 2011, a real estate broker called police to report that a man carrying a bag was seen going into a vacant house that she had listed for sale. An officer responded to the call and discovered that glass had been broken out of the back door, which was ajar. The officer saw Murray inside the kitchen, with a tool bag on the kitchen counter, using a screwdriver on a wall fixture. Screws were later found in Murray’s pants pocket that matched those used to hold up a ceiling fan that had been taken down and placed by the back door of the house. Murray initially told the arresting officer that he was doing work on the house, but later claimed that he had gone inside the house to use the bathroom. At trial, Murray testified that he went on the property to urinate outside the house and that he then went inside the house because he was “just being nosey.” The real estate broker and the buyer of the house testified that they had not given anyone permission to enter the house.

Having reviewed all the evidence in the light most favorable to the verdict, we conclude “that there was sufficient evidence for the jury to find [Murray] guilty beyond a reasonable doubt of burglary. [Cit.]” Williams, supra at 419-420 (1) (punctuation omitted). See also OCGA § 16-7-1 (b) (defining burglary to include entering the dwelling house of another without authority and with the intent to commit a felony or theft therein).

2. Indictment did not properly identify owner of house.

Murray argues that the indictment did not give him adequate notice of the victim because it averred that he had entered the dwelling house of Willie Cotton, but the evidence presented at trial showed that sale of the house to Cotton was not actually closed until several days after the burglary. However, as the trial court correctly ruled, this did not constitute a fatal variance between the allegations in the indictment and the proof.

Our courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance fatal. [Cits.]

Delacruz v. State, 280 Ga. 392, 396-397 (3) (627 SE2d 579) (2006).

Here, the indictment definitely informed Murray of the burglary charge against him and sufficiently identified the property in question by its full address. “The indictment did not mislead [Murray] in such a manner that impeded his ability to present a defense or surprise him at trial, and [he] cannot be subjected to a subsequent prosecution for the burglary of the residence in question.” Abney v. State, 240 Ga. App. 280, 282 (2) (523 SE2d 362) (1999) (citation and footnote omitted). Accordingly, the fact that Cotton did not actually finalize his purchase of the house until several days after the burglary does not constitute a fatal variance. See id. at 281-282 (2) (no fatal variance where burglary indictment charged defendant with “entering the dwelling house of McGee, but the evidence at trial showed that McGee neither owned the house nor resided there”); Manemann v. State, 147 Ga. App. 747, 748-749 (4) (250 SE2d 164) (1978) (no fatal variance where burglary indictment alleged that property was owned by person who turned out to be the janitor, not the owner).

3. Continuance.

Murray claims that the trial court erred in denying his motion for a continuance after the state violated OCGA § 17-16-8 (a) by giving him the name of a witness less than ten days before trial. We find no reversible error in the denial of a continuance.

The record shows that the state gave Murray the name and contact information of an additional witness, the real estate broker, on September 29, 2012, and the trial started four days later on October 3. Murray’s counsel orally moved for a continuance at the start of the trial, but the trial court denied the motion, telling counsel that she would have a chance to talk to the witness prior to her testimony. The state later called the broker to the witness stand. Before she testified, a bench conference was held at which Murray’s counsel indicated that she had not yet talked to the witness. The trial court responded that the state could not prevent her from speaking to any witness, and Murray’s counsel agreed. However, counsel did not request an opportunity to speak with the witness or seek any other relief. The bench conference ended, and the witness then testified without objection.

“Under OCGA § 17-16-8 (a), the prosecutor is required to furnish to defense counsel a witness list not later than ten days before trial. .. . [T]he purpose of the statute is to prevent a defendant from being surprised at trial by a witness he has not had an opportunity to interview.” Rollinson v. State, 276 Ga. App. 375, 378 (1) (c) (623 SE2d 211) (2005) (citations and punctuation omitted).

OCGA § 17-16-6 sets forth the remedies for a defendant upon the [sjtate’s failure to comply with OCGA § 17-16-8, providing that the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.

Wilkins v. State, 291 Ga. 483, 486 (5) (731 SE2d 346) (2012). Under this statute, there is not “an exclusive remedy for a defendant or a fatal consequence to the [s]tate for failure to comply with the discovery mandates. Instead, it cloak[s] the trial court with the discretion to use its own judgment... and we will not reverse its decision absent an abuse of discretion.” Norris v. State, 289 Ga. 154, 156 (2) (709 SE2d 792) (2011) (citations and punctuation omitted).

Here, the trial court did not abuse its discretion in denying a continuance and instead ruling that Murray would have an opportunity to interview the witness. See Taylor v. State, 305 Ga. App. 748, 753 (2) (a) (700 SE2d 841) (2010) (usually a sufficient remedy for the defense to be afforded opportunity to interview the witness). Thereafter, Murray acquiesced in the lack of an interview prior to the witness’ testimony by failing to object or request additional relief. “The motion for continuance was not renewed, and he never requested the exclusion of testimony, nor does he complain in this [c] ourt that any . . . testimony should have been excluded. Appellant cannot complain of a ruling his own procedure or conduct aided in causing.” Norris, supra at 157 (2) (citations and punctuation omitted).

Moreover, even if we were to presume error in the denial of a continuance, Murray has shown no harm. “[T]o be entitled to a new trial based upon the denial of [a] motion for a continuance, [an appellant] has the burden of showing that he was harmed by that denial. [Cits.]” Hughes v. State, 323 Ga. App. 4, 9-10 (3) (746 SE2d 648) (2013). Murray has made no proffer of evidence that he could have introduced had a continuance been granted, nor has he otherwise shown that a continuance would have benefitted him. See id. at 10 (3) & n. 14 (absent proffer of testimony or other evidence to demonstrate harm, defendant fails to show reversible error in denial of a continuance). Accordingly, Murray has not carried his burden of showing harmful error.

4. Refusal to remove a juror.

During jury deliberations, one of the jurors informed the court that he might be uncomfortable rendering a decision because he recognized Murray’s wife as a cashier at a store where he shops. The trial court questioned the juror about the situation. During that inquiry, the juror stated that he could be fair and make a decision based solely on the law and facts. Murray moved for a mistrial, but the trial court denied the motion and allowed the juror to return to deliberations. After the jury announced that it had a verdict, but before it was read in court, Murray moved to set aside the verdict on the ground that the trial court should have replaced the juror with an alternate. The trial court denied the motion, finding that there was no “basis to remove him.”

Murray complains that the trial court erred in denying his motion for a mistrial and his motion to set aside the verdict. The complaints are without merit.

As an initial matter, we note that a mistrial would not have been an appropriate remedy in this situation; rather, the proper remedy, if necessary, would have been replacement of the juror with an alternate. OCGA § 15-12-172 provides:

If at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated. . . .

Pursuant to this statute,

[t]he trial court must exercise its discretion in removing a juror, and it may effect such a removal even after deliberations have begun. There must be some sound basis upon which the trial judge exercises his discretion to remove the juror. . . . Where the basis for the juror’s incapacity is not certain or obvious, some hearing or inquiry into the situation is appropriate to the proper exercise of judicial discretion.

Butler v. State, 290 Ga. 412, 417 (5) (721 SE2d 876) (2012) (citations and punctuation omitted).

In this case, the trial court inquired into the situation, during which the juror confirmed that he could make a decision based on the law and evidence. The court then properly exercised its discretion in refusing to replace the juror with an alternate.

Where a juror unequivocally states he could set aside his personal opinion and consider the evidence presented and the law as charged by the trial court and there is no evidence that the juror was incapable of rendering an impartial verdict, the trial court does not abuse its discretion by retaining the juror.

Prince v. State, 277 Ga. 230, 236 (4) (587 SE2d 637) (2003) (citations omitted). Because the trial court did not abuse its discretion in refusing to remove the juror, we find no error.

5. Recidivist sentencing.

Murray asserts that the trial court erroneously considered his prior guilty pleas in sentencing him as a recidivist because the pleas were not willing and voluntary. Although we find error in the procedure used by the trial court at the sentencing hearing, because Murray failed to make any showing of infirmity with regard to his prior guilty pleas, we find no reversible error.

Based on the shifting burdens of proof established by Nash v. State, 271 Ga. 281 (519 SE2d 893) (1999),

[w]hen a defendant collaterally attacks the validity of a prior guilty plea being used by the [s]tate for recidivist sentencing in a subsequent proceeding, the burden is on the [s]tate to prove both the existence of the prior guilty pleas and that the defendant was represented by counsel in all felony cases. Upon such a showing, the presumption of regularity is then applied and the burden shifts to the defendant to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. Defendant can attempt to meet his burden of production with a transcript, with testimony regarding the taking of the plea, or with other affirmative evidence. A silent record or the mere naked assertion by an accused that his prior counseled plea was not made knowingly and intelligently is insufficient.

Horne v. State, 318 Ga. App. 484, 494 (6) (733 SE2d 487) (2012) (citations and punctuation omitted). If the defendant is able to present evidence that a constitutional infirmity exists, the burden of proving the constitutionality of the plea then shifts back to the state. Smith v. State, 260 Ga. App. 785, 787 (581 SE2d 349) (2003).

At the sentencing hearing in the instant case, the state met its initial burden by tendering certified copies of Murray’s prior guilty pleas. See Sheppard v. State, 300 Ga. App. 631, 638 (5) (686 SE2d 295) (2009). However, when Murray’s counsel indicated that she wanted to attack the prior pleas as having not been knowingly and willingly entered, the trial court did not allow it, telling counsel that “ [t] his is not the time or place to do that” and that Murray would have “to go through habeas corpus process” to attack the prior pleas. The trial court clearly erred in refusing to allow Murray to challenge the validity of his prior guilty pleas, since, after the state met its burden, he had the burden “to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea[s].” Nash, supra at 285.

Nevertheless, we note that after the trial court’s erroneous decision at the sentencing hearing, Murray did not object and made no attempt to proffer the affirmative evidence he would have introduced if allowed. Moreover, at the motion for new trial, the court asked Murray’s counsel to show the affirmative evidence she would have presented at the sentencing hearing. The only evidence she mentioned was that she would have had some of his family members testify about his limited education. She further conceded at the hearing that Murray had been represented by counsel at his pleas. Likewise, on appeal, Murray has not identified any evidence showing an infringement of his rights in the taking of his prior guilty pleas. Consequently, even though the trial court clearly erred at the sentencing hearing by telling Murray that he could not challenge the voluntariness of his guilty pleas at that hearing, such error is not reversible since Murray has not pointed to any affirmative evidence showing an irregularity with any of the pleas. Compare Grant v. State, 326 Ga. App. 121, 132 (6) (756 SE2d 255) (2014) (physical precedent only) (at motion for new trial and on appeal, defendant pointed to evidence in the record showing that he was not informed of his right to counsel and also submitted affidavit evidence, thus making affirmative showing of infirmity in taking of plea).

Decided July 10, 2014.

Veronica E. Brinson, for appellant.

K. David Cooke, Jr., District Attorney, MyraH. Tisdale, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.