text:
    A11A0245.
    In the Interest of T. A. H. et al., children.
    (712 SE2d 115)
   Doyle, Judge.

The mother of T. A. H., I. S. H., and D. M. appeals from a juvenile court order terminating her parental rights. She challenges the sufficiency of the evidence to support rulings that (1) the children were deprived, (2) the cause of the deprivation was likely to continue, and (3) continued deprivation was likely to cause serious harm to the children. We disagree and affirm.

When reviewing a termination order for sufficiency of the evidence,

[o]ur responsibility as an appellate court is to determine whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. This Court neither weighs' evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.

So viewed, the record shows that one night in September 2009, police were called to a residence where T. A. H. (age 6), I. S. H. (age 3), and D. M. (age 22 months) had been left alone by their mother. They found D. M. outside crying on the front porch and the other two children inside the house. After police waited approximately 40 minutes, the mother returned home with her boyfriend, having been out retrieving a child’s bed from another location and stopping at Dairy Queen on the way back. The mother and boyfriend were arrested for cruelty to children, and the children were placed into the custody of the Department of Family and Children Services (“DFCS”).

The juvenile court issued a 72-hour order finding probable cause of deprivation, and DFCS filed a deprivation petition noting DFCS’s prior involvement with the children. Following a hearing, the juvenile court entered an order adjudicating the children deprived. That order was not appealed.

In October 2009, the juvenile court held a permanency hearing, after which the court ordered DFCS to develop a concurrent reunification and adoption case plan. The mother’s goals were to establish stable housing and employment and to work with DFCS to address her supervision and parenting issues.

In April 2010, DFCS filed a petition for termination of the mother’s parental rights, alleging the mother’s failure to gain sufficient parenting insight despite the resources available to her. The trial court held a hearing that included testimony from the mother, the father, a DFCS caseworker, a social worker, and the children’s guardian ad litem.

The evidence at the termination hearing showed that the children had first come into DFCS’s care in 2007 for reasons including sexual abuse, neglect, and the mother’s decision to allow supervision by a registered sex offender. The mother was provided with a case plan that included parenting classes, parent aide services, visitation, psychological and psychosexual evaluations, individual therapy, and therapy with the children. In March 2009, over DFCS’s objection, the children were returned to the mother’s care subject to a protective order that prohibited supervision by any unrelated males.

The evidence further showed that while the children were in the mother’s custody, she failed to continue to take the children to counseling and doctor’s appointments, one child lost weight, and she allowed supervision by her new boyfriend.

After the children were again taken back into DFCS’s care in September 2009 because they had been left unattended, the children were again provided therapy and began showing improvement in behavior and demeanor. One child, the victim of sexual trauma, would frequently assume a fetal position, but he began to be less withdrawn in therapy. The six-year-old manifested behavior indicative of being left alone and of assuming parental responsibility for the younger siblings. Two children exhibited inappropriate sexual behavior as well as post-traumatic stress disorder.

Also during the second intervention, the mother was provided with a second case plan that included additional counseling and intensive parenting classes. She attended the classes and counseling, but the social worker involved with the counseling testified that the mother exhibited poor insight into why the children were taken into care the second time. By the end of seven months of additional counseling, the mother had shown only “marginal progress,” and her ability to consistently provide a safe environment for her children was “questionable,” such that the social worker did not recommend placing the children with the mother at the time of the termination hearing. The social worker explained that the mother’s “marginal” insight was not sufficient and that reunification was “very risky.”

The DFCS caseworker testified that it sought termination because of the mother’s repeated failure to gain full insight into her parenting responsibility despite repeated intervention by DFCS. She explained that there was no further help or service DFCS could provide to the mother, despite her continued lack of progress. Since being placed with the foster parent (the same from the prior intervention), the children had shown signs of improvement, and the children had bonded with their foster parent who wished to adopt them.

Finally, at the termination hearing, the guardian ad litem stated that her recommendation was termination and that the evidence from the hearing further supported her recommendation.

At end of the hearing, the juvenile court concluded that the children were deprived, continued deprivation was likely, such deprivation would likely cause serious harm, and termination was in the best interests of the children. We granted the mother’s application for a discretionary appeal.

A termination of parental rights case involves a two-step analysis. First, the juvenile court must find parental misconduct or inability, based on clear and convincing evidence that: (1) the child is deprived [as defined in OCGA § 15-11-2 (8)]; (2) the lack of proper parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors are satisfied, then the court must determine whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home.

1. The children were deprived. The mother first challenges the juvenile court’s ruling that the children were deprived. This ruling, however, was supported by the unappealed prior finding of deprivation and the further showing that the conditions upon which the finding was based, i.e., the mother’s lack of supervision of the children and her lack of insight into her parenting responsibility, still existed at the time of the termination hearing. Therefore, this enumeration is without merit.

2. The cause of the deprivation was likely to continue. The mother also contends that the evidence did not support a finding that the cause of the deprivation, her lack of proper parental care or control, was likely to continue. We disagree.

This criterion focuses on whether, as of the date of the termination hearing, the parent is likely to continue conduct causing deprivation. If over the intervening months or years since she originally lost custody of the children, the mother has not modified the behavior that led to the original and continued removal of the children, then a court could find that the mother will continue to so act in the future and therefore that the cause of the deprivation will likely continue.

Here, the evidence showed that the mother already had been through counseling and training once, and she again grossly failed to supervise the children. At the second intervention, the children exhibited signs of chronic lack of supervision and post-traumatic stress syndrome. The therapist and the DFCS caseworker both testified that despite two interventions by DFCS and months of counseling, the mother failed to show adequate insight into her parenting responsibility.

Evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in her natural child; clear and convincing evidence of present unfitness is required. But the trial court is entitled to consider evidence of the parent’s past actions in determining whether the deprivation is likely to continue. It is not bound by mere promises to do better in the future.

Thus, the mother’s persistent failure to adequately supervise her children and demonstrate insight into her shortcomings supported the juvenile court’s finding that the deprivation was likely to continue.

Decided June 16, 2011.

Blanton C. Lingold, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Thomas J. O’Donnell, Kathryn A. Fox, Assistant Attorneys General, for appellee.

3. Continued deprivation was likely to cause serious harm to the children. Finally, the mother challenges the juvenile court’s conclusion that continued deprivation was likely to seriously harm the children. However, there was ample evidence of the harm the children had already endured, including post-traumatic stress syndrome, inappropriate sexual behavior, withdrawn affect, and discipline problems. Only after the children were provided intensive counseling and cared for in a stable foster environment did they demonstrate improvement in these areas. Upon return to the mother, the children lacked the same medical and psychological care. These facts support the conclusion that continued deprivation is likely to cause serious harm to the children.

Further, “the juvenile court was authorized to consider the children’s need for a stable home situation and the detrimental effects of prolonged foster care.” The evidence showed that the foster mother had cared for the children for a majority of one child’s life and much of the other children’s lives. The foster mother had bonded with the children, they had improved in her care, and the foster mother wished to adopt them. Thus, the children have the opportunity to continue in a stable, permanent home with a parent they have bonded with. For all of these reasons, the trial court’s conclusion as to the likelihood of future harm was sufficiently supported by the evidence.

For the reasons discussed above, we discern no error and affirm the juvenile court’s judgment.

Judgment affirmed.

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

       (Punctuation omitted.) In the Interest of J. E., 309 Ga. App. 51 (711 SE2d 5) (2011).

       The father’s parental rights were also terminated, but he is not a party to this appeal.

       When!, as here,] a child is no longer in the custody of a parent, a court evaluating the question of proper care and control shall also consider whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) to develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) to provide for the care and support of the child as required by law or judicial decree; and (iii) to comply with a court ordered plan designed to reunite the child with the parent.
      (Punctuation omitted.) In the Interest of J. E., 309 Ga. App. at 56 (1).

       (Punctuation and footnotes omitted.) In the Interest of R. J., 308 Ga. App. 702, 707 (708 SE2d 626) (2011).

       See In the Interest of K. C. W., 297 Ga. App. 714, 718 (2) (a) (678 SE2d 343) (2009); In the Interest of P. D. W., 296 Ga. App. 189, 191-193 (1) (a), (b) (674 SE2d 338) (2009).

        In the Interest of P. D. W., 296 Ga. App. at 194 (1) (c).

       (Punctuation and emphasis omitted.) In the Interest of R. J., 308 Ga. App. at 707 (2) (b).

        In the Interest of A. M., 259 Ga. App. 537, 543 (578 SE2d 226) (2003).

       (Punctuation omitted.) Id.


source: Caselaw Access Project

author: Doyle, Judge.

license: Public Domain

text:
    A11A0300.
    CRISP v. THE STATE.
    (712 SE2d 119)
   Doyle, Judge.

Following a jury trial, Lora Joann Crisp appeals her conviction for trafficking in methamphetamine (based on manufacturing), manufacturing methamphetamine, possessing methamphetamine, and possessing altered ephedrine. She contends that the trial court erred by failing to follow the proper procedure for admitting similar transaction evidence. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that police received a tip that Crisp and her boyfriend, Eric Houts, were possibly manufacturing or selling methamphetamine from a duplex they lived in with Crisp’s minor child. Based on the information, officers went to the duplex, knocked on the door, and obtained Houts’s consent to search the residence. After backup officers arrived, officers searched the residence and found, in the master bedroom and closet, white gas, acetone, a propane burner, a glass dish with iodine stains, drain cleaner, latex gloves, coffee filters containing white methamphetamine residue, a jar containing a bi-layer liquid, and other materials used for manufacturing methamphetamine, as explained by a testifying officer with training and field experience investigating methamphetamine labs. Elsewhere throughout the residence, officers found methamphetamine in liquid form, crushed pseudoephedrine tablet casings, as well as other chemicals and equipment in amounts and configurations typically used for manufacturing methamphetamine.

Crisp and Houts were arrested and taken to the sheriffs department for post -Miranda interviews. Based on the police investigation, Crisp and Houts were separately charged with crimes based on the methamphetamine and manufacturing equipment. Following her conviction and the denial of her motion for new trial, Crisp filed this appeal.

Crisp contends that the trial court erred by admitting statements from her police interview that she had purchased and used methamphetamine on two occasions prior to the arrest. She argues that this was evidence of prior similar criminal acts and was only admissible as similar transaction evidence under the procedure outlined in Williams v. State, requiring notice and a hearing as to the admissibility of the evidence for proper purposes. However, pretermitting whether the statement to police was properly admitted, the statement of prior drug use was cumulative of other unchallenged evidence that, on the day of the search, Crisp told a worker from the Department of Family and Children Services that she would not pass a drug screen because she had used methamphetamine on her birthday the prior week. By not making any objection to this evidence, Crisp waived any challenge to it on appeal.

Decided June 16, 2011.

Steven A. Miller, for appellant.

Herbert E. Franklin, Jr., District Attorney, Bruce E. Roberts, Assistant District Attorney, for appellee.

When testimony is tendered an objection must be made, affording the court opportunity to rule upon the admissibility of the testimony upon the grounds then urged and in the context of the matter as it then appears, and failure to make a timely objection to testimony when it is offered results in a waiver of any objection that might have been urged. All evidence is admitted as [a matter] of course unless a valid ground of objection is interposed, the burden being upon the objecting party to state at the time some specific reason why it should not be admitted.

Because the challenged evidence essentially repeated Crisp’s uncontested statement that she had used methamphetamine before, it was cumulative of other unchallenged testimony, and the enumerated error provides no basis for reversal.

Judgment affirmed.

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

       OCGA § 16-13-31 (f).

       OCGA § 16-13-30 (b).

       OCGA § 16-13-30 (a).

       OCGA § 16-13-30.3 (d). For purposes of sentencing, the manufacturing and possessing methamphetamine counts merged into the trafficking count.

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       Houts is not a party to this appeal.

       261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

       See Harden v. State, 272 Ga. App. 559, 560-561 (2) (612 SE2d 877) (2005). Compare Riddle v. State, 208 Ga. App. 8, 10 (1) (b) (403 SE2d 153) (1993) (defendant raised similar transaction issue in timely trial objection to testimony challenged on appeal).

       (Punctuation omitted.) Harden, 272 Ga. App. at 561 (2).

       See Quarles v. State, 285 Ga. App. 758, 759 (647 SE2d 415) (2007); Clemmons v. State, 282 Ga. App. 261, 263 (1) (638 SE2d 409) (2006).


author: Dillard, Judge.

text:
    A11A0420.
    In the Interest of T. S. et al., children.
    (712 SE2d 121)
   Dillard, Judge.

The mother of T. S. and J. F. appeals from an order of the Juvenile Court of Dodge County, arguing that the court erred in finding that (1) T. S. was deprived, (2) reunification was not in T. S.’s best interests, and (3) custody of J. F. should be awarded to the boy’s father, even after concluding that J. F. was not deprived. For the reasons set forth infra, we affirm in part, reverse in part, vacate in part, and remand the case for further proceedings consistent with this opinion.

In an appeal from a deprivation order, we review the evidence from a juvenile court hearing “in the light most favorable to the court’s judgment and determine whether any rational trier of fact could have found by clear and convincing evidence that the children were deprived.” So viewed, the evidence shows that in April 2009, the Dodge County Department of Family and Children Services (“DFCS”) received a report from the school of then seven-year-old T. S. that the girl had come to school with a mark on the side of her face, which required medical attention. T. S. reported that her mother struck her after becoming upset because she left a book bag at school. When a DFCS investigator interviewed T. S.’s mother about the incident, the mother admitted that she “lost control” and slapped T. S., knocking her to the ground and leaving a “slash” across the child’s face. She also admitted to whipping T. S. on the girl’s buttocks and legs with a belt. Consequently, T. S.’s mother was arrested on a cruelty-to-children charge, and she later pleaded guilty to a lesser-included misdemeanor of simple battery. Following this incident, DFCS placed T. S. in her paternal grandmother’s custody and placed the mother’s then four-year-old son, J. F, who had a different father than T. S., in his paternal grandmother’s custody. After several months, both children returned to live with their mother.

On October 20, 2009, DFCS received another report from T. S.’s school, noting that when T. S. arrived at school that morning, a teacher noticed that she had pronounced scratch marks on her face and another one on her right wrist, and that T. S. claimed the scratch marks came from being slapped by her mother. When confronted with T. S.’s accusation, the mother admitted to the DFCS investigator that she grabbed T. S. by the face and that her fingernail scratched her daughter’s face, but she denied slapping her. Nevertheless, following this incident, DFCS again placed both children in the custody of their respective paternal grandmothers as part of a safety plan.

On April 22, 2010, DFCS filed a deprivation petition as to both T. S. and J. F, which alleged that the mother physically abused T. S. and noted that both children were currently in the custody of their respective paternal grandmothers. Shortly thereafter, J. F.’s father filed a petition for legitimation of J. F. and sought to intervene in the deprivation adjudication.

The juvenile court conducted a hearing on the deprivation petitions and the legitimation petition filed by J. F.’s father on June 10, 2010. During that hearing, the DFCS investigator testified regarding the physical abuse T. S. suffered and the mother’s admissions that she inappropriately and excessively disciplined her daughter. Additionally, a clinical psychologist — who was asked by DFCS to provide cognitive behavior therapy and anger-management counseling for the mother after the first reported incident of abuse — testified for the State. Specifically, the psychologist testified that the mother acknowledged inappropriately and excessively disciplining T. S. and that the mother was frustrated by the fact that T. S.’s father did not provide any financial or emotional support for his daughter. At the conclusion of these initial counseling sessions, the psychologist recommended that the mother see a psychiatrist in order to determine whether she needed to be treated with antidepressant or mood-stabilizing medications; however, the mother never followed this advice. The psychologist further testified that she was again brought in by DFCS to work with the mother after the second incident of abuse. And while the psychologist acknowledged the mother’s progress (as a result of these counseling sessions), she also opined that it was probably not a good idea to return the children to the mother until she was evaluated further by a psychiatrist, who could then determine whether her treatment needed to include antidepressant and mood-stabilizing medications.

During the same hearing, J. F.’s father, who was then serving in the United States Army, testified that he began providing child support for J. F. as soon as he learned that he was the boy’s father. J. F.’s father also testified that he wanted custody of the boy and explained to the court that he had successfully requested a transfer to a nearby Army base so that he could be near J. F. while completing his service requirements. J. F.’s paternal grandmother also testified during the hearing, noting that after J. F. came to live with her, his reading and speech skills progressed, and that he seemed very happy. One of J. F.’s teachers also testified during the hearing and confirmed that J. E had made significant progress in school since he began living with his grandmother.

Finally, the mother of T. S. and J. F. testified during the hearing and acknowledged that in April 2009, she slapped T. S. in the face and whipped her with a belt to the extent that her daughter’s buttocks and legs had marks. She also acknowledged that this incident resulted in her arrest on cruelty-to-children charges. With regard to the October 2009 incident, the mother testified that she grabbed T. S.’s face but denied that she intended to cut T. S.’s face with her fingernail. The mother also admitted that after both incidents she agreed to a DFCS safety plan, which placed T. S. and J. E in the custody of their respective paternal grandmothers and required her to attend counseling and anger-management classes. Additionally, the mother conceded that the psychologist, who counseled her on anger-management issues, recommended that she seek further mental-health counseling so that she could be prescribed antidepressant medication, but explained that she did not agree with this assessment.

At the conclusion of the hearing, the juvenile court found T. S. to be deprived and granted DFCS’s request that T. S.’s paternal grandmother have long-term custody with no plan for reunification. The court also found that J. F. was not deprived, but it, nevertheless, placed custody of J. F. with his father after granting the father’s legitimation petition. A few months later, the juvenile court confirmed its rulings in a written order. This appeal follows.

1. The mother contends that the juvenile court erred in finding T. S. to be deprived. We disagree.

A deprived child is one who is “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” In determining whether a child is without proper parental care or control, the court shall consider, among other things, “evidence of past egregious conduct of the parent toward the child or toward another child of a[n] . . . emotionally . . . abusive nature” and “evidence of past . . . mental[ ] or emotional neglect of the child or of another child by the parent.” Additionally, “[i]n determining whether a child is deprived, the court focuses on the needs of the child rather than parental fault.” Furthermore, “[a] temporary loss of custody on the basis of deprivation is justified only when the deprivation resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.”

Here, the evidence shows that the mother physically abused T. S. on at least two occasions to the extent that officials at T. S.’s school became concerned for the child’s physical and emotional well being. Indeed, the police were notified on one of those occasions, the mother was charged with cruelty to children, and she later pleaded guilty to a charge of misdemeanor simple battery. The evidence also demonstrated that although the mother sought anger-management counseling, the psychologist working with the mother testified that she thought it was unwise to return the children to the mother’s custody until and unless she sought further psychiatric counseling. Thus, there was sufficient evidence to support the juvenile court’s finding that T. S. was deprived.

2. The mother also contends that the juvenile court erred in finding that reunification was not in T. S.’s best interests. And because the juvenile court’s order is insufficient to allow for meaningful appellate review on this issue, we vacate the nonreunification order and remand the case for further proceedings.

It is well established that “[i]n order to determine that reunification is no longer appropriate, a juvenile court must find by clear and convincing evidence that efforts to reunify the child with his [or her] family will be detrimental to the child.” And in reviewing such a determination,

we view the evidence in the light most favorable to the trial court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that reasonable efforts to reunify the children with [his or her] parents would be detrimental . . . and therefore reunification services should be terminated.

Importantly,

[t]here shall be a presumption that reunification services should not be provided if the court finds by clear and convincing evidence that: (1) [t]he parent has unjustifiably failed to comply with a previously ordered plan designed to reunite the family; (2) [a] child has been removed from the home on at least two previous occasions and reunification services were made available on those occasions; (3) [a]ny of the grounds for terminating parental rights exist, as set forth in subsection (b) of Code Section 15-11-94; or (4) [a]ny of the circumstances set out in paragraph (4) of subsection (a) of this Code section exist, making it unnecessary to provide reasonable efforts to reunify.

Here, the juvenile court found that reunification efforts would be detrimental to T. S., but did not specify which, if any, of the presumptions under OCGA § 15-11-58 (h) supported its finding. And under these circumstances, it is simply impossible for us to determine whether the juvenile court’s order is supported by clear and convincing evidence. Accordingly, we vacate the juvenile court’s order to the extent it held that reunification was not in T. S.’s best interests, and remand the case for further proceedings consistent with this opinion.

Furthermore, we are also constrained to vacate the juvenile court’s decision to place T. S. with her paternal grandmother. It is well settled that “[i]n nonreunification cases, the court may enter a custody order placing the children with a willing relative or nonrela-tive individual who, after study by a person or agency designated by the court, is found to be qualified to receive and care for the children.” And while the juvenile court’s order noted that T. S.’s paternal grandmother will “provide a family home” for the child and further directs that a probation officer submit a report every 36 months regarding whether the grandmother continues to be qualified to care for T. S., the record is devoid of any evidence that such a report regarding the grandmother’s qualifications was submitted prior to the court’s custody decision (as required by statute). Accordingly, the juvenile court’s award of permanent custody of T. S. to her paternal grandmother is vacated, so that on remand the issue of placement may also be addressed in a manner consistent with this opinion.

Decided June 16, 2011.

Steven M. Harrison, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Elizabeth M. Williamson, Assistant Attorney General, Sarah Tipton-Downie, for appellee.

3. Finally, the mother contends that the juvenile court erred in awarding custody of J. F. to his father even after finding that J. F. was not deprived. We agree.

This Court has previously noted that “[ajlthough a deprivation proceeding is brought to determine whether the child is deprived and is not an action brought to decide custody matters concerning the child, the juvenile court is authorized to assign temporary custody of a deprived child.” Indeed, OCGA § 15-11-55 (a) (2) provides that a juvenile court may transfer custody “[i]f the child is found to be deprived . . . .” And while “the juvenile court shall have concurrent jurisdiction to hear and determine the issue of custody and support when the issue is transferred by proper order of the superior court,” no such order exists in the record. Instead, the juvenile court specifically found that J. F. was not deprived. Thus, according to a plain reading of OCGA § 15-11-55 (a) (2), the court was without authority to transfer custody of J. F. to his father and paternal grandmother. Accordingly, we reverse the part of the juvenile court’s order awarding custody of J. F. to his father and paternal grandmother.

Judgment affirmed in pari, reversed in part and vacated in part, and case remanded.

Smith, P. J., and Mikell, J., concur.

        In the Interest of T. W., 297 Ga. App. 886, 886 (678 SE2d 546) (2009) (punctuation and footnote omitted).

       T. S. required medical attention as a result of this incident of abuse, and there was testimony presented below that the slash mark was still visible on the child’s face six months later.

       The mother is not married to either child’s father.

       OCGA § 15-11-2 (8) (A).

       OCGA § 15-11-94 (b) (4) (B) (iv)-(v).

        In the Interest of M. K., 288 Ga. App. 71, 71 (1) (653 SE2d 354) (2007) (citation omitted).

        In the Interest of T. W., 297 Ga. App. at 887 (citation and punctuation omitted).

       Suffice it to say, there is significant distinction between a parent physically abusing his or her child (as was the case here), and a parent choosing to discipline his or her child by means of reasonable and nonexcessive corporal punishment. The former is impermissible, whereas the latter amounts to constitutionally protected conduct. See, e.g., Doe v. Heck, 327 F3d 492, 522 (7th Cir. 2003) (Manion, J.) (holding that “the fundamental right of parents to direct the upbringing of their children necessarily includes the right to discipline them”).

        See, e.g., In the Interest of M. K., 288 Ga. App. at 73 (1) (holding that evidence that mother physically abused child was sufficient to support deprivation finding); In the Interest of T. R., 284 Ga. App. 742, 743 (644 SE2d 880) (2007) (same).

        In the Interest of M. H., 251 Ga. App. 528, 529 (554 SE2d 616) (2001) (footnote omitted); see OCGA § 15-11-58 (h).

        In the Interest of A. M., 306 Ga. App. 358, 358-59 (702 SE2d 686) (2010) (citation and punctuation omitted).

       OCGA § 15-11-58 (h) (l)-(4). The following criteria are listed in OCGA § 15-11-58 (a) (4): (A) parent has subjected the child to aggravated circumstances, including abandonment, torture, chronic abuse, and sexual abuse; (B) parent has committed murder of another child of the parent; been convicted of murder of the child’s other parent; committed voluntary manslaughter of another child of the parent; aided or abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of another child of the parent; committed a felony assault that resulted in serious bodily injury to the child or another child of the parent; or (C) the parental rights of the parent to the child’s sibling have been terminated involuntarily.

        Cf. In the Interest of A. W., 264 Ga. App. 705, 708 (3) (592 SE2d 177) (2003) (vacating order and remanding case to juvenile court when it was unclear whether juvenile court’s order was based on a mistake of fact).

        In the Interest of J. J., 287 Ga. App. 746, 749 (2) (652 SE2d 639) (2007); see also OCGA § 15-11-58 (i) (1) (A)-(C).

        See OCGA § 15-11-58 (i) (1) (A).

        Cf. In the Interest of J. J., 287 Ga. App. at 749-50 (2) (holding that custody of children cannot be placed with foster care agency given the absence in the record of any report as to whether the foster care agency was qualified to care for the children).

        Long v. Long, 303 Ga. App. 215, 218 (2) (692 SE2d 811) (2010) (citation and punctuation omitted; emphasis supplied).

       OCGA § 15-11-28 (c) (1).


text:
    A11A0488.
    MOORE v. THE STATE.
    (712 SE2d 126)
   Dillard, Judge.

Rodney Moore was found guilty by a jury on one count of possessing cocaine with intent to distribute, one count of possessing cocaine, one count of failure to use a turn signal, one count of escaping from law enforcement, and two counts of obstruction. Moore appeals these convictions, arguing that the trial court erred in failing to grant a mistrial after the admission of improper character evidence and inadmissible hearsay. For the reasons noted infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that Barrow County sheriffs deputies were investigating a suspicious person on the side of a road when they noticed Moore’s vehicle make a left turn without signaling. As the deputies initiated a stop, they observed a white object being thrown from the passenger-side window of Moore’s vehicle.

After the vehicle stopped, the deputies noticed that Moore was driving with two passengers inside. One of the deputies then located the white object that had been thrown from the car — a small bag containing a substance that later tested positive for cocaine; and another deputy discovered a larger bag containing ten small individual bags of what was later determined to be cocaine, approximately three to five feet from the driver’s side of the vehicle. Thereafter, the deputies began an investigation to determine which of the occupants had been in possession of the cocaine.

During the course of this investigation, Moore confessed that all of the cocaine belonged to him and not his passengers. One of the deputies also phoned a known drug user who lived in the neighborhood Moore’s vehicle was seen exiting, and this individual informed the deputy that Moore had just stopped by his residence to sell him “dope.” The deputy testified that this information contributed to Moore being arrested for possession with intent to distribute.

While Moore was handcuffed in the back of a patrol car and the deputies were having his car towed, he managed to roll down the window, open the back door, and flee from the scene. Deputies gave chase, but eventually lost Moore in the woods. Later that day, however, an anonymous call led deputies to the known drug user’s home, where Moore had taken refuge. Moore, however, was once again able to elude capture by fleeing from the home. Approximately one month later, deputies received yet another anonymous tip, which led them to Moore’s hiding place at a different home. Moore again attempted to escape, but was ultimately found hiding under a sofa in the garage.

Thereafter, Moore was tried by a jury, convicted on all of the counts enumerated supra, and sentenced to nineteen years imprisonment (ten to serve). This appeal follows.

1. Moore’s first contention of error is that the trial court improperly allowed the admission of character evidence when sheriffs deputies mentioned his previous run-ins with the law. We disagree.

At the outset, we note that “[t]he decision to deny a mistrial is within the trial court’s discretion, and we will not reverse it unless the grant of a mistrial is necessary to preserve the right to a fair trial.” And here, Moore moved for a mistrial when State witnesses referenced his past interactions with law enforcement. Specifically, these witnesses gave testimony as to their (1) familiarity with Moore’s vehicle from “previous investigations,” (2) personal knowledge that the known drug user called by the police was associated with Moore, and (3) personal knowledge that Moore had multiple run-ins with law enforcement in escaping. As to the first two references, the trial court immediately denied the motions for mistrial. As to the third reference, the court delayed ruling, but then denied Moore’s motion after deciding that the witness responsible for such testimony could retake the stand to clarify that his testimony referred only to the incidents prior to Moore’s eventual capture (for the events in question).

On appeal, Moore contends that the deputies’ statements were more than mere passing references and were instead repeated commentary that placed his character squarely at issue. We disagree and find no abuse of discretion by the trial court in denying Moore’s motions for a mistrial.

We have previously held that an officer’s testimony regarding general familiarity with a criminal defendant does not impermissibly place that defendant’s character at issue because “the mere fact that an officer is familiar with a defendant does not necessarily suggest prior criminal conduct.” Additionally, none of the trial testimony at issue on appeal remotely suggested that Moore had ever been convicted of a past crime. But even if we concluded that the challenged testimony by the officers impermissibly placed Moore’s character at issue during his trial, any such error would be harmless due to the overwhelming evidence of Moore’s guilt (as described supra and further discussed infra). Accordingly, we find no reversible error on this contention.

2. Moore’s second enumeration of error is that the trial court admitted impermissible hearsay testimony when it allowed a sheriffs deputy to testify that the known drug user said Moore was bringing him drugs but thereafter refused to permit the known drug user to testify regarding this conversation. We disagree.

At trial, the prosecution elicited testimony from a deputy describing his conversation with the known drug user during Moore’s stop and investigation. According to the deputy, he asked the drug user to identify who had come by his home to sell him “dope,” and the user responded with Moore’s name. Moore immediately objected to this testimony on the ground that the deputy’s testimony was based on hearsay; however, the court overruled this objection because the drug user was, at that time, scheduled to testify on behalf of the State.

But before the known drug user could take the stand, he informed the trial court on the record — but outside the jury’s presence — that he heard some of the deputy’s testimony through the courtroom door. This individual also explained to the court that while “dope” generally means anything illegal, and while he had assumed the deputy meant cocaine when he said “dope,” Moore was actually bringing him marijuana. Moore then objected to this testimony as an unserved similar transaction, and the court ruled that the State would be prohibited from asking the known drug user about his conversation with the deputy on direct examination. In so ruling, however, the court indicated that Moore could still question the known drug user about the conversation and overruled his motion for mistrial. Thereafter, the known drug user testified only about the assistance he provided to Moore after Moore escaped from the patrol car, and Moore chose not to question the drug user about his conversation with the deputy.

Moore argues on appeal that the deputy’s testimony regarding the conversation he had with the known drug user was hearsay. But pretermitting whether the deputy’s prior testimony was inadmissible hearsay, or whether the trial court otherwise erred by placing Moore in this position, any such error was harmless given the overwhelming evidence that Moore possessed cocaine with the intent to distribute it. Indeed, the jury was presented with evidence that Moore was found with and admitted to possessing 7.87 grams of powder cocaine, that the cocaine was divided into individual bags, and that generally one gram of cocaine is sufficient for personal use. Thus, any error in the admission of the deputy’s testimony was harmless and does not require reversal.

Decided June 16, 2011.

Kris K. Sikes, for appellant.

J. Bradley Smith, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

Accordingly, for all the foregoing reasons, we affirm Moore’s convictions.

Judgment affirmed.

Smith, P J., and Mikell, J., concur.

        See, e.g., Walker v. State, 296 Ga. App. 531, 532 (675 SE2d 270) (2009) (“This Court does not weigh the evidence or determine witness credibility, but only determines whether the evidence, viewed in the light most favorable to the jury’s verdict, is sufficient!.]” (citation and footnote omitted)).

       The trial court held a Jackson-Denno hearing and determined that Moore’s post-Miranda confession was voluntary. Moore does not contest the admissibility of this confession on appeal.

        McCain v. State, 292 Ga. App. 886, 887 (665 SE2d 912) (2008) (footnote and punctuation omitted); see also Jones v. State, 279 Ga. App. 139, 140 (2) (630 SE2d 643) (2006) (“We review a trial court’s denial of a motion for a mistrial based on the injection of improper character evidence for manifest abuse of the court’s discretion.” (citations and punctuation omitted)).

       The trial court also offered to give a curative instruction to the jury regarding the officer’s statement about Moore’s prior “run-ins” with law enforcement, but his defense counsel chose not to accept this offer.

        See Walker, 296 Ga. App. at 536-37 (2) (a) (holding that trial court did not abuse its discretion in denying five motions for mistrial after witnesses made passing references to defendant’s previous jail time, a call to police after defendant beat a victim, and defendant’s prior felony convictions).

        Rucker v. State, 304 Ga. App. 184, 189 (2) (b) (iii) (695 SE2d 711) (2010) (citation and punctuation omitted); see also Jones, 279 Ga. App. at 140 (2) (holding that defendant’s character was not impermissibly placed in evidence by detective’s testimony as to knowing defendant by a gang nickname, defendant’s associate being in a gang data bank, and running criminal background checks on defendant and associate); Garrison v. State, 260 Ga. App. 788, 790 (3) (581 SE2d 357) (2003) (“Testimony that a defendant is known to the police does not impermissibly place the defendant’s character into issue.” (footnote and punctuation omitted)).

        See Carr v. State, 282 Ga. 698, 701-02 (3) (653 SE2d 472) (2007) (holding that although officer testified that defendant was “educated or familiar with the system,” the testimony did not indicate that the defendant “had ever been convicted of a crime, or that she had even been a suspect in one”).

        See Walker v. State, 282 Ga. 703, 705 (2) (653 SE2d 468) (2007) (“[S]uch error was harmless, as the evidence of [the defendant’s] guilt was overwhelming and thus it is highly probable that the admission of the challenged testimony did not contribute to the verdict.” (citation omitted)).

       The testimony at trial conflicted as to whether Moore had already stopped by the known drug user’s home or whether he was on his way to that residence at the time he was pulled over by law enforcement.

       The jury was informed that the witness heard testimony from outside the courtroom, and the court then instructed the jurors that they could consider that fact during their deliberations.

        But see London v. State, 274 Ga. 91, 94 (4) (b) (549 SE2d 394) (2001) (noting that “the United States Supreme Court. . . has held that the constitutional requirements of the confrontation clause are satisfied when the hearsay declarant is present at trial and available for cross-examination” (citation omitted)); Davis v. State, 281 Ga. App. 855, 863 (7) (637 SE2d 431) (2006) (“As long as the declarant testifies at trial and is available for cross-examination by the defendant, the purpose behind the hearsay rule is satisfied with regard to his declarations.” (footnote and punctuation omitted)); Conley v. State, 257 Ga. App. 563, 564 (1) (571 SE2d 554) (2002) (“[T]he modern trend regarding hearsay evidence is to allow the out-of-court declaration where the declarant is present and may be cross-examined.” (footnote omitted)); Bryant v. State, 249 Ga. App. 383, 385 (4) (a) (547 SE2d 721) (2001) (“If defense counsel had the opportunity to confront and cross-examine the witness who made the out-of-court statement, the statement was admissible.” (footnote and punctuation omitted)); see also Quintanilla v. State, 273 Ga. 20, 22 (3) (a) (537 SE2d 352) (2000); Armstead v. State, 255 Ga. App. 385, 389 (3) (565 SE2d 579) (2002); Gregg v. State, 201 Ga. App. 238, 241 (3) (c) (411 SE2d 65) (1991).

        See, e.g., Williams v. State, 273 Ga. App. 634, 635-36 (2) (615 SE2d 792) (2005) (explaining what the State must show before similar transaction evidence will be admissible at trial); see also OCGA § 24-2-2 (“The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.”). But see

        Ellerbee v. State, 247 Ga. App. 46, 51 (2) (b) (542 SE2d 146) (2000) (“Relevant extrinsic acts evidence is not rendered inadmissible despite its incidental tendency to discredit the character of the accused.” (footnote omitted)).

        Archer v. State, 291 Ga. App. 175, 177-78 (2) (661 SE2d 230) (2008) (“The test for harmful error is whether it is highly probable that the error contributed to the verdict. In determining whether hearsay testimony is harmful, this court has found inadmissible hearsay which is received over objection does not require a new trial if it appears that the evidence could not have affected the verdict.” (footnote omitted)); Strahan v. State, 273 Ga. App. 116, 121 (2) (614 SE2d 227) (2005) (“The erroneous admission of similar transaction evidence . . . may be harmless error if the State presents such overwhelming evidence of the defendant’s guilt that it is highly probable that the error did not contribute to the guilty verdict.” (citation and punctuation omitted)). Compare Render v. State, 267 Ga. 848, 849-50 (2) (483 SE2d 570) (1997) (reversing conviction when evidence was not overwhelming); Dixon v. State, 173 Ga. App. 280, 282 (325 SE2d 893) (1985) (reversing conviction when hearsay testimony “comprised a considerable amount of new evidence against the defendant” and “nearly amounted] to an entire offer of proof”).

        See Singleton v. State, 266 Ga. App. 795, 796 (1) (598 SE2d 80) (2004) (holding that evidence of possessing cocaine with intent to distribute was overwhelming when, inter alia, defendant was found with plastic bag of crack cocaine, bottle containing crack cocaine, and cut-up sandwich bags); Davis v. State, 235 Ga. App. 256, 256-57 (510 SE2d 537) (1998) (holding that evidence of possession of cocaine with intent to distribute was overwhelming when, in one instance, defendant was found with 30 small bags of crack cocaine). Cf. Milton v. State, 232 Ga. App. 672, 672-73, 677 (3) (503 SE2d 566) (1998) (holding that evidence of trafficking in cocaine was overwhelming when defendant was found with small packages of crack cocaine).


text:
    A11A0517.
    EARLEY v. THE STATE.
    (712 SE2d 565)
   Dillard, Judge.

In 2009, Guy Anthony Earley pleaded guilty to one count of theft by receiving and one count of attempting to elude a police officer. Two months later, and after obtaining new counsel, Earley moved to withdraw his guilty plea, which the trial court denied. Earley now appeals the denial of his motion to withdraw his guilty plea, arguing that the trial court erred in denying his motion for a continuance of the plea hearing and that his plea counsel provided ineffective assistance. For the reasons set forth infra, we affirm.

The record shows that on December 17, 2008, a Douglasville police officer observed Earley driving a 1998 Honda Accord through a grocery store parking lot. And finding Earley’s manner of driving suspicious, the officer ran a check on the vehicle’s license tag and learned that it had expired. When the officer initiated a traffic stop, Earley attempted to elude the officer by speeding away through traffic. The chase ultimately ended when Earley stopped the car in front of a residence and attempted to flee on foot, but was apprehended by the officer. Shortly thereafter, the police learned that the car Earley was driving had been reported stolen earlier in the day.

Earley was charged, via accusation, on one count of theft by receiving of a motor vehicle and one count of felony attempting to elude a police officer. A few months later, the State filed a notice of its intent to introduce similar-transaction evidence and a notice of its intent to have Earley sentenced as a recidivist under OCGA § 17-10-7 (c). In a hearing on the day his trial was scheduled to begin, Earley — who was represented by counsel — filed a pro se motion for a continuance on the ground that he did not have confidence that his counsel was prepared for trial. Following the trial court’s denial of that motion, Earley entered a non-negotiated guilty plea to both counts in the accusation. Subsequently, the trial court imposed a fifteen-year sentence with seven to serve.

Nearly one month later, Earley filed a timely pro se motion to withdraw his guilty plea. Thereafter, Earley was appointed new counsel, and his new counsel filed an amended motion to withdraw his guilty plea, alleging that Earley’s plea counsel provided ineffective assistance and that Earley did not enter his plea intelligently, knowingly, and voluntarily. On October 27, 2009, the trial court conducted a hearing on Earley’s motion to withdraw his guilty plea, during which he argued that the trial court erred in denying his pro se motion for a continuance of the plea hearing and that his plea counsel provided ineffective assistance. Both Earley and his plea counsel testified during the hearing, and at the conclusion of the proceedings, the trial court denied Earley’s motion. This appeal follows.

At the outset, we note that while a guilty plea may be withdrawn anytime before sentencing, “once a sentence has been entered[,] a guilty plea may only be withdrawn to correct a manifest injusticef,]” and a trial court’s refusal to allow withdrawal “will not be disturbed on appeal absent a manifest abuse of discretion.” Additionally, “a criminal defendant who seeks to withdraw his guilty plea due to ineffective assistance of counsel must meet the now familiar two-part test of Strickland v. Washington — deficient performance and prejudice.” Specifically,

[a] defendant who pleads guilty and seeks to overturn his conviction because of counsel’s errors must show both that counsel’s performance was deficient and that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

And, “in evaluating an attorney’s performance for the purpose of determining the first prong of the Strickland test, there is a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance.” With these guiding principles in mind, we will now address Earley’s two enumerations of error in turn.

1. Earley contends that the trial court erred in denying his motion to withdraw his guilty plea, arguing that the court’s denial of his pro se motion for a continuance of the plea hearing constituted a manifest injustice. We disagree.

First, the trial court did not err in denying Earley’s pro se motion for a continuance because it is well established that “[a] criminal defendant does not have the right to represent himself and also be represented by an attorney.” Given that Earley was represented by counsel when he filed his pro se motion, that motion was of no legal effect whatsoever.

Moreover, even if we were to consider Earley’s motion for a continuance on its merits, the trial court did not err in denying it. Importantly, “[a] ruling on a motion for continuance is within the trial court’s sound discretion and will not be disturbed absent a clear abuse of that discretion.” And here, the trial court noted on the record that it denied Earley’s motion for a continuance because it concluded that he was seeking a continuance for purposes of delay and not for any substantive reason. Under these circumstances, we find no basis for concluding that the trial court abused its discretion in denying Earley’s pro se request for a continuance.

2. Earley also contends that the trial court erred in denying his motion to withdraw his guilty plea because his plea counsel provided ineffective assistance. Specifically, Earley argues that his plea counsel failed to thoroughly investigate his case, failed to explain the consequences of his non-negotiated guilty plea, and failed to withdraw from representing him despite having a conflict of interest. We find all of these contentions to be without merit.

(a) Earley first argues that his plea counsel failed to adequately meet with him and to investigate his case. During the hearing on his motion to withdraw his guilty plea, Earley testified that he only saw his counsel for 15 minutes every month and a half. In contrast, plea counsel testified that she met with Earley at least seven times during the nine months she handled his case and spoke to him on the phone numerous times. Plea counsel further testified that she reviewed all of the State’s discovery and was fully prepared to try the case on the day Earley ultimately entered into the non-negotiated guilty plea. The trial court was authorized to credit the testimony of Earley’s plea counsel, and its factual findings and credibility determinations will be accepted unless clearly erroneous. Given that our review of the record reveals no such error, Earley has failed to show that his counsel’s performance was deficient.

(b) Earley also contends that he did not generally understand the plea-hearing proceedings and that his plea counsel failed to explain the consequences of his non-negotiated guilty plea. However, the record supports the trial court’s conclusion that Earley knowingly and intelligently entered his guilty plea. In fact, during his plea hearing, Earley confirmed that he could read and write, that his counsel discussed the plea petition and waiver-of-rights form with him and that he understood it. Earley then responded affirmatively when the State’s prosecutor asked him if he understood the rights he was waiving by pleading guilty. Additionally, Earley affirmatively stated that he understood when the trial court reiterated the rights he was waiving by pleading guilty and further explained to him that he was facing a maximum sentence of 15 years “in prison as a repeat offender.” Based on the record, we conclude that the State met its burden of showing that Earley offered his plea knowingly, intelligently, and voluntarily, and the trial court did not abuse its discretion when it denied his motion to withdraw his guilty plea on this claim.

(c) Finally, Earley argues that his plea counsel provided ineffective assistance by failing to withdraw from representing him after she learned that she had a conflict of interest. An indigent defendant is not entitled to have his appointed counsel discharged, however, “unless he can demonstrate justifiable dissatisfaction with counsel, such as conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between counsel and client.” And, “[w]e evaluate a trial court’s decision regarding whether to appoint new trial counsel for an indigent defendant under an abuse of discretion standard.” Additionally, we have previously held that “[i]n order for a criminal defendant to prevail on a claim that his attorney was ineffective due to a conflict of interest, he must show that an actual conflict of interest adversely affected his lawyer’s performance. ”

Here, approximately one week before Earley’s trial was scheduled to begin, his counsel learned that — in an odd coincidence — her husband knew the owner of the vehicle that was the subject of Earley’s theft-by-receiving charge. Specifically, counsel learned that the theft victim, whom she had never met, worked with her husband at a local university and that her husband occasionally acted as the theft victim’s supervisor. Almost immediately after learning this information, counsel informed the trial court, the State’s prosecutor, and Earley. During a hearing held on August 6, 2009, plea counsel’s possible conflict was discussed further, and the trial court offered Earley an opportunity to express any concerns. Nevertheless, at the conclusion of the hearing, the trial court found that no actual conflict existed because it was satisfied with counsel’s testimony that her husband’s working relationship with the victim would not affect her ability to represent Earley. Given that some evidence supported the trial court’s determination that no conflict existed, the trial court did not clearly err in finding that Earley failed to establish that plea counsel’s failure to withdraw constituted ineffective assistance. Accordingly, the trial court did not err in denying Earley’s motion to withdraw his guilty plea.

Decided June 16, 2011.

Angela Moore-Brown, for appellant.

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

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

        See OCGA § 16-8-7 (a).

        See OCGA § 40-6-395 (a), (b) (5) (A).

        Maddox v. State, 278 Ga. 823, 826 (4) (607 SE2d 587) (2005) (punctuation omitted).

        Hunter v. State, 294 Ga. App. 583, 584 (1) (669 SE2d 533) (2008) (punctuation omitted).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Murray v. State, 307 Ga. App. 621, 623-24 (705 SE2d 726) (2011) (punctuation and footnote omitted).

        Rios v. State, 281 Ga. 181, 181 (2) (637 SE2d 20) (2006) (punctuation omitted).

        Murray, 307 Ga. App. at 624 (punctuation and footnote omitted).

        Beattie v. State, 240 Ga. App. 327, 327 (1) (523 SE2d 389) (1999) (holding that because defendant was represented by counsel, trial court properly denied his pro se motion for continuance); see Howard v. State, 307 Ga. App. 822, 827-28 (2) (c) (706 SE2d 163) (2011) (noting that “Sixth Amendment right does not afford the defendant the hybrid right to simultaneously represent himself and be represented by counsel”); Voils v. State, 266 Ga. App. 738, 742 (3) (598 SE2d 33) (2004) (holding that defendant’s pro se motion for an evidentiary hearing was properly denied because defendant was represented by counsel); Pless v. State, 255 Ga. App. 95, 96 (564 SE2d 508) (2002) (holding that defendant’s pro se motions were void because he was represented by counsel).

        Pless, 255 Ga. App. at 96.

        Simmons v. State, 309 Ga. App. 369, 370 (1) (710 SE2d 193) (2011).

         Although the discussion regarding Earley’s motion for a continuance (that occurred just prior to the start of his plea hearing) was not transcribed, the trial court noted its reasons for denying same during the hearing on Earley’s motion to withdraw his plea.

        See Simmons, 309 Ga. App. at 369 (1) (holding that denial of a continuance is proper where it appears defendant is using the tactic for delay); Holder v. State, 242 Ga. App. 479, 483 (7) (529 SE2d 907) (2000) (same).

        See Rios, 281 Ga. at 182 (2).

        See, e.g., Sallins v. State, 289 Ga. App. 391, 393 (1) (657 SE2d 309) (2008) (holding that defendant failed to prove that counsel performed deficiently in light of counsel’s testimony that he met with defendant on several occasions and that he had thoroughly reviewed State’s evidence); Battle v. State, 269 Ga. App. 757, 758 (1) (605 SE2d 391) (2004) (same).

        See Rios, 281 Ga. at 183 (4) (holding that record of plea hearing supported trial court’s conclusion that defendant knowingly and intelligently entered his guilty plea); Sallins, 289 Ga. App. at 393-94 (2) (same); Battle, 269 Ga. App. at 758-59 (1) (same).

        Holsey v. State, 291 Ga. App. 216, 218-19 (2) (661 SE2d 621) (2008) (citation and punctuation omitted).

        Id. at 219 (2) (citation omitted).

        Id. at 221 (3) (b) (citation and punctuation omitted); see also Turner v. State, 273 Ga. 340, 342 (2) (a) (541 SE2d 641) (2001).

       This hearing was not included in the record on appeal.

        See Holsey, 291 Ga. App. at 221 (3) (b).


author: McFadden, Judge.

text:
    A11A0943.
    KARLE v. BELLE.
    (712 SE2d 96)
   McFadden, Judge.

Euris Belle sued Manjiri Karle for damages allegedly sustained when the water heater in Karle’s condominium ruptured and leaked into a condominium owned by Belle. Karle moved for summary judgment, arguing that she was not liable for the damages. The trial court denied the motion in part, and we granted Karle’s application for interlocutory appeal. Because OCGA § 44-7-14, which limits the liability of out-of-possession landlords, precludes liability here, we reverse.

Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. See OCGA § 9-11-56 (c). We review a trial court’s summary judgment ruling de novo, construing the evidence and all reasonable inferences in favor of the non-moving party. See Gainey v. Smacky’s Investments, 287 Ga. App. 529 (652 SE2d 167) (2007).

So viewed, the record shows that Karle purchased a unit within the Granville Condominium complex in September 2005 and, almost immediately, leased it to Srinivas Pulipaka and his wife. The condominium was equipped with a water heater, and neither Karle nor Pulipaka noticed any defect in the appliance. On March 5, 2008, however, the water heater failed, causing significant flooding and water damage to Belle’s condominium.

Belle sued Karle, alleging that Karle’s negligence caused the water damage and that her failure to maintain the water heater created a nuisance. Belle also asserted a claim for attorney fees. Karle moved for summary judgment on all claims. The trial court granted the motion as to nuisance, but denied it as to negligence. Karle appeals that ruling, arguing that she did not know the water heater was defective and, as an out-of-possession landlord, had no duty to maintain it. We agree.

The record shows that Karle gave control of the condominium to her tenants, fully parted with possession, and thus was an out-of-possession landlord. See OCGA § 44-7-14. Pulipaka testified that he and his wife had exclusive possession over the unit at all times during their lease, including when the water heater failed. Karle similarly testified that she relinquished control to her tenants. Although she retained authority under the lease to enter the property for inspection, maintenance, and repairs during normal business hours, this right of entry “is not inconsistent with a full surrender of possession to the tenant.” Webb v. Danforth, 234 Ga. App. 211, 212 (505 SE2d 860) (1998).

As an out-of-possession landlord, Karle’s liability was limited by OCGA § 44-7-14. Pursuant to that provision, a landlord who has fully parted with his or her property “is not liable to third persons for damages in tort unless it is shown that the damages resulted either from failure to repair the premises or faulty construction of the premises.” (Punctuation omitted.) Gainey, supra at 530 (2). Belle cannot make this showing here.

Liability for failure to repair arises only “where there is a duty to repair and notice has been given of the defect.” (Punctuation omitted.) Gainey, supra at 530 (2) (a). Pulipaka asserted that he never reported a problem with the water heater to Karle, and Karle testified that she had no notice of a defect. Belle did not offer contrary evidence or demonstrate that Karle breached a duty to repair. See id. at 530-531 (2) (a). Moreover, nothing indicates that Karle knew about any faulty construction or problem with the water heater when she bought the condominium or leased it to the Pulipakas. In fact, she denied such knowledge, and Belle has pointed to no other evidence of faulty construction. The record, therefore, does not raise a question of fact as to negligent repair or faulty construction, the two grounds for liability under OCGA § 44-7-14.

Nevertheless, Belle argues, and the trial court found, that Karle is not entitled to summary judgment because factual issues remain as to whether Karle breached a duty to maintain or inspect the water heater. OCGA § 44-7-14 does not impose a “duty of maintenance” on an out-of-possession landlord. Gainey, supra at 530 (2). Belle contends, however, that the declarations of the Granville Condominium Association created additional duties beyond those specified for out-of-possession landlords. According to Belle, the declarations required unit owners to inspect their property for potential problems and perform routine maintenance on water heaters.

To support this claim below, Belle attached a copy of the declarations to her affidavit. She also testified that each unit owner was subject to the declarations and that the attached copy was “true and accurate.” But Belle offered no grounds for admitting the declarations into evidence. Although she broadly stated that the declarations applied to all owners, she did not present any evidence supporting this assertion, demonstrate that the declarations were recorded in the appropriate county clerk’s office, or show that Karle knew of their requirements. Compare Timberstone Homeowner’s Assn. v. Summerlin, 266 Ga. 322, 323 (467 SE2d 330) (1996) (“Where a restrictive covenant is recorded, the purchaser is charged with legal notice of the covenant, even if it is not stated in his own deed.”).

Furthermore, we agree with Karle that the declarations submitted by Belle were hearsay. “Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” OCGA § 24-3-1 (a). Belle does not claim that she was involved in or had any personal knowledge of the document’s preparation. Instead, she argues on appeal that the declarations are tantamount to contractual obligations imposed on all condominium owners. Again, however, she did not submit any competent evidence regarding the scope of the declarations, their application to other owners, or Karle’s notice of the provisions. At most, she established that the declarations apply to her.

Belle also asserts that the declarations were maintained in the regular course of the condominium association’s business, arguably invoking the business records exception to the hearsay rule. See OCGA § 24-3-14 (b). But she did not present evidence supporting this claim or demonstrate that she had knowledge of the association’s record keeping. See Henson v. Ga.-Pacific Corp., 289 Ga. App. 777, 779-780 (1) (658 SE2d 391) (2008) (proponent must show that documents fall within business records exception to hearsay rule); Nalley Northside Chevrolet v. Herring, 215 Ga. App. 185, 186 (3) (450 SE2d 452) (1994) (to establish foundation for admissibility of evidence under business records exception, proponent must present testimony of witness familiar with the method of record keeping). And although she testified that she submitted a “true and accurate” copy of the declarations, this testimony does not resolve the hearsay issue or bring the evidence within a hearsay exception. Compare OCGA § 24-5-26 (accurate copy of record made in the regular course of business admissible).

Decided June 16, 2011.

Bach, Dewberry & Hipes, John C. Bach, Layne M. Kamsler, for appellant.

Ronald J. Lockley, Mario D. Breedlove, Ronald W. Parnell, for appellee.

“All hearsay evidence, unsupported conclusions, and the like, must be stricken or eliminated from consideration in a motion for summary judgment.” (Punctuation omitted.) Harrell v. Fed. Nat. Payables, 264 Ga. App. 501, 504 (3) (591 SE2d 374) (2003). Belle did not present admissible evidence of the heightened duty of care allegedly imposed by the condominium declarations. That duty, therefore, cannot be considered on summary judgment, and we must analyze the case under OCGA § 44-7-14. Accordingly, because no issues of material fact remain as to Karle’s liability as an out-of-possession landlord, the trial court erred in denying her motion for summary judgment.

Judgment reversed.

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


author: Phipps, Presiding Judge.

text:
    A11A0591.
    MASON v. THE STATE.
    (712 SE2d 76)
   Phipps, Presiding Judge.

Joseph Mason contends that the trial court erred in denying his motion to correct an allegedly illegal sentence. For reasons that follow, we affirm.

Mason was indicted for first degree cruelty to children, an offense punishable by up to 20 years of imprisonment. He entered a negotiated guilty plea to that charge and was granted first offender treatment under the First Offender Act. Mason was given a 15-year probated sentence, which included, as a special condition, confinement for a designated time period at a “Department of Corrections Detention Center.” Contesting the confinement as punishment that the law did not allow, Mason filed the underlying motion, which the trial court denied.

1. Mason maintains that he was unlawfully sentenced to both probation and confinement, citing OCGA § 42-8-60 (a) of the First Offender Act, which provides that under certain circumstances “the court may, without entering a judgment of guilt and with the consent of the defendant: (1) Defer further proceeding and place the defendant on probation as provided by law; or (2) Sentence the defendant to a term of confinement as provided by law.” This issue — whether the explicit language of OCGA § 42-8-60 (a) allows for either probation or confinement, but not both — has already been decided adversely to Mason.

2. Mason claims the trial court was not authorized to order him confined to a probation detention center, citing a provision of the State-wide Probation Act, OCGA § 42-8-35.4 (a). Under that provision, our courts may require confinement at a probation detention center for two categories of individuals: (1) “defendant[s] convicted of a felony”; and (2) designated misdemeanants. Mason argues that he falls within neither category.

The underlying indictment and guilty plea involved no misdemeanor. And although Mason pled guilty to the felony charge, he posits that he was not “convicted” because he was granted first offender treatment. Mason asserts that his position — that he has not been “convicted” — is supported by the plain language of OCGA § 42-8-60 (a), which provides for first offender treatment “before an adjudication of guilt. . . and without [the court] entering a judgment of guilt.” As additional support for his position that first offender treatment does not constitute a conviction, Mason relies on cases such as Headspeth v. State and State v. Allmond.

Notably, neither Mason’s brief nor the record shows that this argument was presented to the trial court. Pretermitting whether the argument was required to be raised and ruled upon below, however, we find it without merit because the argument overlooks another provision of the First Offender Act, OCGA § 42-8-65 (c). Pursuant thereto, persons who have been sentenced to a term of confinement under OCGA § 42-8-60 (a) (2)

shall be deemed to have been convicted of the offense during such term of confinement for all purposes except that records thereof shall be treated as any other records of first offenders under this article and except that such presumption shall not continue after completion of such person’s confinement sentence.

In accordance with the plain language of that statutory provision, during his term of confinement, Mason is deemed to be a convicted felon for purposes of OCGA § 42-8-35.4, and consequently, within a category of persons eligible to serve the ordered term of confinement at a probation detention center.

“All statutes are presumed to be enacted with full knowledge of existing law and their meaning and effect is to be determined with reference to the constitution as well as other statutes and decisions of the courts.” Thus, the legislature is presumed to have had full knowledge of OCGA § 42-8-65 (c), as well as this court’s holding in Penaherrera v. State, when it enacted OCGA § 42-8-35.4. If the legislature had intended to exclude from OCGA § 42-8-35.4’s purview perpetrators of felonies who were granted first offender treatment, notwithstanding OCGA § 42-8-65 (c), it easily could have so provided. It was not explicitly stated, and we glean no legislative intent to so curtail the reach of OCGA § 42-8-35.4. Indeed, a trial court exercising its discretion to grant first offender treatment to the perpetrator of a felony may sentence that offender to imprisonment in a penitentiary. Notably, a requirement that a perpetrator of a felony, who is given a probated sentence as first offender treatment, “complete satisfactorily, as a condition of that probation, a program of confinement in a probation detention center” is confinement “of a nature and to a degree less than imprisonment in a jail or penitentiary.”

Mason’s reliance upon the Code section and cases he cites is misplaced. While Mason correctly points out that OCGA § 42-8-60 (a) allows for probation and sentencing “before an adjudication of guilt. . . and without [the court] entering a judgment of guilt,” the purpose of the First Offender Act is to protect the first offender from the stigma of having a criminal record. And cases such as Headspeth do not control the issue presented in this contention because they do not concern the legality of probationary or confinement terms imposed under OCGA § 42-8-60 (a). Nor does Allmond provide any basis for reversal. Not only is that case inapposite because it concerned whether OCGA § 17-10-6.1 foreclosed first offender treatment to perpetrators of serious violent felonies, but the holding reached by Allmond has been statutorily superseded.

Decided May 31, 2011

Reconsideration denied June 17, 2011

Joseph Mason, pro se.

Catherine H. Helms, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       OCGA § 16-5-70 (e) (1).

       See OCGA § 42-8-60 et seq.

       See Ward v. State, 299 Ga. App. 63, 64 (682 SE2d 128) (2009) (a sentence is void when it imposes a punishment that the law does not allow).

       (Emphasis supplied.)

         Penaherrera v. State, 211 Ga. App. 162-164 (1) (438 SE2d 661) (1993); see generally Johanson v. State, 260 Ga. App. 181, 184-185 (2) (581 SE2d 564) (2003) (physical precedent only).

       See OCGA § 42-8-20 et seq.

       OCGA § 42-8-35.4 (a) states, in relevant part:
      In addition to any other terms and conditions of probation provided for in [the State-wide Probation Act], the trial judge may require that a defendant convicted of a felony and sentenced to a period of not less than one year on probation or a defendant who has been previously sentenced to probation for a forcible misdemeanor as defined in paragraph (1) of Code Section 16-1-3 or a misdemeanor of a high and aggravated nature and has violated probation or other probation alternatives and is subsequently sentenced to a period of not less than one year on probation shall complete satisfactorily, as a condition of that probation, a program of confinement in a probation detention center. . . .

       See Wilson v. Windsor, 280 Ga. 576, 577 (1) (630 SE2d 367) (2006).

       266 Ga. App. 414 (597 SE2d 503) (2004).

       225 Ga. App. 509 (484 SE2d 306) (1997).

       See Smith v. State, 292 Ga. App. 689, 691-692 (665 SE2d 399) (2008) (defendant’s acquiescence to an illegal sentence, either through plea negotiations or failure to object to the sentence, cannot render an otherwise illegal sentence valid through waiver, because a void sentence in law amounts to no sentence at all). But see Ward v. State, 299 Ga. App. 826, 827 (683 SE2d 894) (2009) (noting that arguments contesting legality of sentence cannot be raised for the first time on appeal because appellate courts are “for the correction of errors . . . [and] do not consider issues which were not raised below and ruled on by the trial court”) (punctuation and footnote omitted). Cf. Turner v. State, 284 Ga. 494, 497 (2) (668 SE2d 692) (2008) (where merger was expressly rejected by defendant in order to effectuate negotiated pleas, defendant waived any claim that resulting multiple sentences were void on double jeopardy grounds).

       OCGA § 42-8-65 (c) (emphasis supplied).

        Wilson, supra at 578 (1) (“If the plain language of the statute is susceptible of only one meaning, courts must follow that meaning unless to do so would produce contradiction or absurdity.”) (citation and punctuation omitted).

        Higdon v. City of Senoia, 273 Ga. 83, 86 (3) (538 SE2d 39) (2000) (citation omitted), cited in Harris v. State, 286 Ga. 245, 247-248 (4) (686 SE2d 777) (2009).

       See Ga. L. 1985, p. 380, § 2 (enacting current OCGA § 42-8-65 (c) as OCGA § 42-8-65 (d), and announcing in the preamble that the enactment is, inter alia, “to provide for treatment of persons sentenced to terms of confinement as having been convicted during such terms of confinement”). See generally Concerned Citizens of Willacoochee v. City of Willacoochee, 285 Ga. 625, 626 (680 SE2d 846) (2009) (reviewing preamble in connection with interpreting statutory language).

       Supra at 163-164 (1) (noting that a trial court has broad discretion to determine the terms and conditions of probation and holding that first time offender’s confinement at a probation detention center was within the bounds of the law).

       See Ga. L. 1995, p. 627, § 1 (enacting OCGA § 42-8-35.4, and announcing in the preamble that the enactment amends the State-wide Probation Act, inter alia, “to provide statutory authority and to delineate uses for probation detention centers” and “to authorize a trial judge to require certain persons who have been sentenced to not less than one year on probation to complete satisfactorily a program of confinement in a probation detention center as a condition of probation”). See generally Concerned Citizens of Willacoochee, supra.

       See, e.g., OCGA §§ 17-10-6.1 (b) (3) (providing, in pertinent part, that “[n]o person convicted of a serious violent felony shall be sentenced as a first offender pursuant to [the First Offender Act], relating to probation for first offenders, or any other provision of Georgia law relating to the sentencing of first offenders”); 42-8-66 (providing, “The [First Offender Act] shall not apply to any person who is convicted of a serious violent felony as defined in subsection (a) of Code Section 17-10-6.1.”).

       See Davis v. State, 269 Ga. 276, 277 (2) (496 SE2d 699) (1998) (noting that, under First Offender Act, an individual may be ordered to, inter alia, serve the term of imprisonment handed down); Wilson v. State, 259 Ga. App. 627, 628 (2) (578 SE2d 260) (2003) (noting that a trial court exercises its discretion in determining whether to grant probation to a first time offender, and further rejecting first time offender’s complaint that he was ordered “to serve ‘straight time,’ without any probationary period,” because nothing in OCGA § 42-8-60 (a) mandates a probationary period for first offenders).

       OCGA § 42-8-35.4 (a); see OCGA § 42-8-44 (providing that the State-wide Probation System article, of which OCGA § 42-8-35.4 is a part, “shall be liberally construed so that its purposes may be achieved”).

        Penaherrera, supra at 163 (1).

        Davis, supra.

       See Headspeth, supra at 415 (c) (disallowing use of first offender sentence for purposes of recidivist sentencing where, at the time of the recidivist sentencing, the period of probation on defendant’s prior first offender sentence had expired with no revocation, the discharge had been automatic, and the first offender sentence had not resulted in a felony “conviction”).

       See Ga. L. 1998, p. 180, § 1 (the decision reached in Allmond by the Court of Appeals of Georgia is contrary to the General Assembly’s intent that persons who commit a serious violent felony shall be sentenced to a mandatory term of imprisonment of not less than ten years and shall not be eligible for first offender treatment). See further statutory provisions set forth in footnote 18, supra.


text:
    A11A0957.
    McKEE FOODS CORPORATION v. LAWRENCE et al.
    (712 SE2d 79)
   McFadden, Judge.

Jerry Lawrence and his wife sued Terry Lee Carswell, Carswell’s snack distribution company, and McKee Foods Corporation for damages sustained when Carswell’s delivery truck collided with a vehicle driven by Lawrence. With respect to McKee, the Lawrences alleged vicarious liability for Carswell’s negligence. McKee moved for summary judgment, arguing that neither Carswell nor his company was a McKee agent or employee, undermining the vicarious liability claim. The trial court denied the motion, and we granted McKee’s application for interlocutory appeal. Because the evidence shows that McKee did not control the time, manner, and method of the work performed by Carswell and his company, we reverse.

Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. See Schlotzsky’s, Inc. v. Hyde, 245 Ga. App. 888 (538 SE2d 561) (2000). We review a trial court’s summary judgment ruling de novo, construing the evidence and all reasonable inferences in favor of the nonmoving party. Id.

So viewed, the record shows that McKee produces Little Debbie and Sunbelt snack items that it sells to distributors, who then sell the products to retail outlets. In April 2001, McKee entered into a distributorship agreement with Carswell’s company, Terry’s Distributor Snacks, Inc. (“TDS”). Among other things, the agreement defined the products that TDS could distribute, set forth payment procedures, and established the distribution territory. It also required TDS to provide facilities for the distribution business, comply with sanitation guidelines for handling and storing the products, obtain insurance, and maintain a certain corporate structure. Finally, the agreement addressed the parties’ relationship, stating:

The parties intend to create an independent contractor relationship between them and agree that Distributor shall be an independent contractor for all purposes. Nothing herein shall be construed: (i) to be inconsistent with that relationship (ii) as constituting Distributor as the partner, agent, or employee of McKee or (iii) as authorizing Distributor, or any agent or employee of Distributor, to create or assume any obligation or liability in the name of McKee. McKee is interested only in the results obtained under this Agreement and hereby specifically relinquishes any right to control the manner and means by which Distributor achieves those results. Distributor shall exercise its independent business discretion in determining the manner and means of achieving those results and in directing the activities of any agents or employees of Distributor. Distributor shall hold itself out as an independent contractor and shall not be treated as an agent or employee of McKee for federal tax purposes or for any other purpose. Distributor shall comply with all laws applicable to Distributor’s business, shall obtain all appropriate licenses for that business, and shall pay all business or self-employment taxes applicable to Distributor and that business.

TDS began operating under the agreement, and in August 2007, a delivery truck driven by Carswell struck Jerry Lawrence’s vehicle. The Lawrences sued Carswell, TDS, and McKee, alleging that Carswell was negligent, that he was engaged in selling McKee products at the time of the collision, and that McKee was vicariously liable for all damages caused by Carswell’s negligence. McKee moved for summary judgment on the vicarious liability claim. Finding that questions of fact remain as to whether the distributorship agreement created an employer-employee relationship, the trial court denied the motion. This appeal followed.

Although an employer may be held vicariously liable for the torts of an employee, such liability does not extend to torts committed by an independent contractor. See OCGA §§ 51-2-2, 51-2-4, 51-2-5 (4). Control is the key question in determining the type of employment relationship created by a contract for services. An employer-employee relationship arises when “the contract gives, or the employer assumes, the right to control the time, manner, and method of executing the work.” (Punctuation omitted.) McLaine v. McLeod, 291 Ga. App. 335, 339 (1) (661 SE2d 695) (2008). If, however, such control is lacking and a contract merely gives the employer the right “to require certain definite results in conformity to the contract,” an independent contractor relationship exists. Id. An agreement that clearly designates a party as an independent contractor presumably creates such a relationship unless the evidence shows otherwise. See id.

The agreement in this case designates TDS as an independent contractor. The Lawrences argue, however, that other parts of the contract demonstrate McKee’s control over the distribution operations. In support, they cite numerous provisions, such as those defining how the products should be stored prior to sale, insurance requirements, the scope of the distributor’s territory, the distributor’s use of trademarks, and McKee’s right to determine whether the distributor is maintaining satisfactory sales.

As detailed below, these provisions establish broad guidelines for a McKee distributorship. They do not constitute exercise of control over TDS’s day-to-day distribution and delivery operations. Instead, the record shows that Carswell and TDS had complete control over the time, manner, and method of executing the work. Pursuant to the distribution agreement, TDS purchased products from McKee, then resold and distributed the merchandise to retailers. Once TDS received inventory from McKee, it belonged to TDS and could not be returned, even if TDS failed to sell the products. Carswell testified that because TDS had to absorb any losses resulting from unsold or expired products, it ordered carefully from McKee, making its own decisions as to the amount and type of products needed by its customers. TDS’s income was based on the difference between the price it paid for the products and the amount at which it sold those products to retailers. McKee made suggestions regarding the amount distributors should charge retailers for products, but TDS was not required to follow those suggestions and often chose not to follow them.

Carswell further testified that TDS did not receive any benefits, commissions, or compensation from McKee, and he made all business decisions regarding his company. He set TDS’s schedule, deciding which customers TDS would call on and how often they should be visited. TDS engaged in its own customer relations, selecting its customers, choosing how to promote and display products, and developing new business. TDS was free to hire its own employees, and Carswell directed and controlled those employees without any input or involvement from McKee. McKee also did not require TDS to use any particular delivery vehicles. TDS chose its vehicles based on its needs, and none displayed a McKee logo. Finally, TDS was not prohibited by the distributorship agreement from selling items produced by other manufacturers.

As we have noted in the franchise context,

a franchisor is faced with the problem of exercising sufficient control over a franchisee to protect the franchisor’s national identity and professional reputation, while at the same time foregoing such a degree of control that would make it vicariously liable for the acts of the franchisee and its employees.

Pizza K, Inc. v. Santagata, 249 Ga. App. 36, 37 (547 SE2d 405) (2001). To this end, a franchisor may set detailed and specific standards regarding how a franchisee manufactures, packages, prepares, or serves the franchisor’s product. Schlotzsky’s, supra at 890. The decision to implement such standards, monitor compliance, or terminate a franchisee for noncompliance “is not the equivalent of retaining day-to-day supervisory control of the franchisee’s business operations.” Pizza K, supra at 39.

These same principles apply here. McKee had an interest in protecting the reputation and viability of its products and sales network. It addressed this interest by, among other things, regulating distributors’ storage facilities and sanitation efforts, establishing requirements for product freshness and trademark usage, and limiting the types of entities it wanted in its distribution chain. None of these requirements, however, dealt with a distributor’s day-to-day operations.

Carswell and TDS were free to make business decisions regarding sales efforts and growth, customer calls, delivery times and routes, delivery methods, pricing, product placement, and other day-to-day matters. Although McKee imposed certain overarching guidelines and regulations on TDS via the distributorship agreement, those provisions “simply served as a means of ensuring conformance with a certain level of quality and protecting [McKee’s] professional reputation.” Pizza K, supra at 39. Simply put, McKee did not have the right to control the time, manner, and method of TDS’s daily activities. Accordingly, the trial court erred in denying McKee’s motion for summary judgment. See id.; Schlotzsky’s, supra at 889-890; Frey v. Pepsico, 191 Ga. App. 585, 586 (1) (382 SE2d 648) (1989); Tanner v. USA Today, 179 Ga. App. 722, 723 (2) (347 SE2d 690) (1986).

Decided June 3, 2011

Reconsideration denied June 17, 2011

James, Bates, Pope & Spivey, John F. Kennedy, Chambliss, Bahner & Stophel, William H. Pickering, for appellant.

Spivey, Carlton & Edenfield, J. Franklin Edenfield, Glen A. Cheney, Charles C. Mayers, for appellees.

Judgment reversed.

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