author: McMlLLIAN, Judge.

text:
    A16A1632.
    In re ESTATE OF EMMETT TAYLOR BOYD.
    (798 SE2d 330)
   McMlLLIAN, Judge.

After Emmett Boyd (“Emmett”) died, Betty Boyd (“Betty”) petitioned the probate court for a year’s support. Charlie Boyd (“Charlie”), Emmett’s son from a prior marriage, filed a caveat based on a post-nuptial agreement entered into by Emmett and Betty some years earlier. The case was transferred to the Superior Court of Camden County, which granted summary judgment to Charlie, denied summary judgment to Betty, and dismissed her petition. On appeal, Betty concedes that the post-nuptial agreement is enforceable; however, she raises three related enumerations of error, contending that enforcement of the agreement should not bar her from recovering what she seeks in her petition. Because the trial court failed to properly construe the terms of the agreement and Betty’s purported waiver of a year’s support, we vacate the judgment and remand for further proceedings.

We review a grant of summary judgment de novo, viewing the evidence and all reasonable conclusions or inferences drawn from it in the light most favorable to the nonmovant. Dewrell Sacks, LLP v. Chicago Title Ins. Co., 324 Ga. App. 219, 220 (749 SE2d 802) (2013). So viewed, the evidence shows that, in January 1987, Emmett and Betty were married in Camden County, Georgia. Both Emmett and Betty had been married previously and had children from their earlier marriages. Following a brief separation after 15 years of marriage, the parties reconciled and entered into a post-nuptial agreement (the “Agreement”) in November 2002. In negotiating and entering into the Agreement, both parties were represented by independent counsel. The Agreement contemplates the manner in which assets will be distributed if the parties were married at the time of either party’s death, and it also provides for the distribution of assets if the parties separated or filed for divorce prior to either party’s death.

In February 2015, Emmett left the marital residence in Woodbine, Georgia, to go to Tallahassee, Florida, where his son Charlie lived. Betty and Charlie dispute whether Emmett intended to simply visit his son in Tallahassee or whether he intended to separate from his wife and move there. It is undisputed, however, that after Emmett arrived in Tallahassee, he moved into an assisted living facility, where he briefly resided until his death.

In late February 2015, a Georgia divorce attorney was contacted about representing Emmett in a divorce proceeding. Although the two never met in person, the attorney spoke with Emmett over the phone about his reasons for seeking a divorce. The attorney later averred that she found Emmett to have a firm grasp of the facts and a full understanding of why he wanted a divorce. On April 27, 2015, the lawyer provided Emmett with a copy of the draft complaint for divorce and reviewed each paragraph with him over the phone to obtain his approval. The lawyer forwarded the draft complaint to Emmett with a verification for his signature, which was executed on April 28, 2015, in the presence of a notary public. The lawyer mailed the verified complaint for divorce to the Superior Court of Camden County on Thursday, April 30, 2015. The next day, Emmett’s health declined, and he was admitted to the hospital. On Monday, May 4, 2015 at 9:30 a.m., the Clerk of Court for the Superior Court of Camden County file stamped the divorce complaint. Unfortunately, just hours later, Emmett passed away at the age of 91 as the result of cardiopulmonary arrest and dementia.

Following Emmett’s death, Betty filed a Petition for a Year’s Support in the Probate Court of Camden County, Georgia (the “Petition”). Attached to the Petition was a Schedule of Real and Personal Property listing the property and sums Betty proposed to receive. In particular, Betty listed the marital residence, the furniture located therein, and certain stocks and cash identified in the Agreement. In response to Betty’s Petition, Charlie filed a caveat and objection, claiming that the Agreement barred Betty from receiving the items she sought through her Petition.

Bothparties filed cross-motions for summary judgment, in which they expressly admitted the validity of the Agreement, but disputed which paragraph of the Agreement should govern the distribution of assets after Emmett’s death. Specifically, Betty sought enforcement of Paragraph 3 of the Agreement, under which she could inherit Emmett’s one-half interest in the marital residence. Charlie, on the other hand, argued that Paragraph 7 of the Agreement controls and provides that Betty is entitled to only one-half of the assets listed on Exhibit D upon the separation of the parties or filing for divorce by Emmett — which he argued would prevent Betty from obtaining Emmett’s one-half interest in the marital residence as a year’s support.

Following oral argument on the parties’ cross-motions, the trial court granted Charlie’s motion for summary judgment, denied Betty’s motion for summary judgment, and dismissed Betty’s Petition. The superior court specifically found that Emmett’s filing for divorce triggered application of Paragraph 7 of the Agreement, which prohibited Betty from inheriting what she sought through her Petition. This appeal followed.

At the outset, we note that Betty attempts to recover from Emmett’s estate by claiming a year’s support, which under Georgia law entitles a surviving spouse to support and maintenance for 12 months following the other spouse’s death. OCGA § 53-3-1 (c). A contractual agreement to waive this right to claim a year’s support, however, can be valid in Georgia. See Hiers v. Estate of Hiers, 278 Ga. App. 242, 244-45 (1) (628 SE2d 653) (2006). When enforcing a post-nuptial contract, such as the Agreement here, courts are to enforce the contract as written by the parties. Eversbusch v. Eversbusch, 293 Ga. 60, 62 (1) (743 SE2d 418) (2013). In doing so,

[w]e follow a three-step process in construing a contract, first determining if the contract language is clear and unambiguous. When a contract contains no ambiguity, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. If, however, the contract is unclear, we attempt to resolve the ambiguity by applying the rules of contract construction. Where the contract remains ambiguous even after we apply the rules of construction, then the parties’ intent must be determined by the factfinder.

(Citations and punctuation omitted.) Global Ship Systems, LLC v. Continental Cas. Co., 292 Ga. App. 214, 215-16 (1) (663 SE2d 826) (2008). Under Georgia law, a contract is unambiguous when it is capable of only one reasonable interpretation, and, if there is no ambiguity, the contract is enforced according to its plain terms. Freund v. Warren, 320 Ga. App. 765, 768-69 (1) (740 SE2d 727) (2013). When determining the meaning of the words used in a contract, the words will “generally bear their usual and common meaning and the usual and common meaning of a word may be supplied by common dictionaries.” (Citation and punctuation omitted.) Global Ship Systems, 292 Ga. App. at 216 (1).

This case is undoubtedly unique, given the narrow window of time between the filing of the divorce complaint with the Clerk and Emmett’s death merely hours later. We recognize that it is unfortunate that the analysis as to which provision of the Agreement was triggered hinges on a few short hours of a decades-long marriage; however, we must construe the Agreement pursuant to its terms. Freund, 320 Ga. App. at 768-69 (1). Turning to the language at issue, Paragraph 7 provides:

In the event that either Wife or Husband moves from the residence and resides separately from the other or in the event that either of them files a divorce action against the other, then they each agree that [1] they will receive as full, final and complete settlement of any claims for alimony, support, or division of property from the other one-half of all items remaining on Exhibit “D” as they may change from time to time with sales and/or purchases and [2] each party shall release the other from any further claims that each of them may have against the other.

The trial court found that Paragraph 7 controlledbecause Emmett “filed” his divorce action prior to his death. We agree that Paragraph 7 controls because the Agreement’s use of the word “file” is not ambiguous and has a common definition: “[t]o deliver a legal document to the court clerk or record custodian for placement into the official record.” Black’s Law Dictionary (10th ed. 2014); Walls v. Walls, 278 Ga. 206, 209 (599 SE2d 173) (2004) (Carley, J., concurring specially) (acknowledging the same definition of “file” per the 7th Edition of Black’s Law Dictionary).

However, the trial court also concluded, without further analysis, that Betty was thereby precluded from pursuing her petition for year’s support. This is error. Clause 1 refers to the settlement of claims for alimony, support, or division of property in a divorce. However, the divorce action here was abated following Emmett’s death. Guthrie v. Guthrie, 277 Ga. 700, 701 n.1 (594 SE2d 356) (2004) (unresolved claim for divorce is purely personal and abates upon death). Therefore, clause 1 does not control. Clause 2, on the other hand, is a general release and thus could be read to include a release of all claims that Betty has against Emmett’s estate for year’s support pursuant to OCGA § 53-3-1.

The question then becomes whether Betty’s petition for year’s support is a “further claim” that was released in clause 2 of Paragraph 7. Our Supreme Court has held that “[i]n order for the relinquishment of a widow’s right to claim a year’s support to be binding on her, it must be made with knowledge of her rights and of the condition of the estate.” (Citations omitted.) Hubbard v. Hubbard, 218 Ga. 617, 619 (2) (129 SE2d 862) (1963). See also Taylor v. Taylor, 288 Ga. App. 334, 338 (2) (654 SE2d 146) (2007). And, “[w]hether the widow made a knowing waiver of her right to year’s support based upon an adequate consideration is a question of fact.” (Citations omitted.) Adams v. Adams, 249 Ga. 477, 481 (4) (291 SE2d 518) (1982).

Decided March 15, 2017.

Garnett Harrison, Jacqueline N. Fortier, for appellant.

Catts & Brooks, Austin E. Catts, Todd C. Brooks, for appellee.

Here, it appears that the undisputed facts were that Betty was represented by counsel at the time the Agreement was executed and knew the condition of the estate as evidenced by the various schedules of assets attached to the Agreement. However, the caveator did not present any evidence on whether Betty was aware of her right to a year’s support, nor was there any testimony from Betty in the record about her knowledge of her rights. Cf. Taylor, 288 Ga. App. at 338 (trial court was entitled to disbelieve wife’s testimony that she was unaware of her right to a year’s support or the condition of the estate when she entered into the agreement). Accordingly, we vacate the judgment and remand for the trial court to consider this issue and for further proceedings consistent with this opinion.

Judgment vacated and case remanded.

McFadden, P. J., con curs. Miller, P. J., concurs in judgment only.

       Paragraph 3 of the Agreement provides:
      In the event of the death of [Emmett], then [Betty] shall receive [EmmettJ’s one-half interest in the real estate comprising their residence located at..., Woodbine, GA 31569, including all of the furniture and furnishings, with the exception of any personal effects belonging to [Emmett] that [EmmettJ’s son may desire to take.

       Paragraph 7 of the Agreement provides:
      In the event that either [Betty] or [Emmett] moves from the residence and resides separately from the other or in the event that either of them files a divorce action against the other, then they agree that they will receive as full, final and complete settlement of any claims for alimony, support, or division of property from the other one-half of all items remaining on Exhibit “D” . . . and each party shall release the other from any further claims that each of them may have against the other.

       The attorney’s affidavit does not specify who initially contacted her.

       Although Betty maintains that Emmett may not have been competent to hire an attorney or file for divorce, the evidence she submitted to support this position was not sufficient to meet her burden to establish Emmett’s incompetency. See Kindred Nursing Centers Ltd. Partnership v. Chrzanowski, 338 Ga. App. 708, 713 (1) (791 SE2d 601) (2016). Specifically, the submission of his medical records without expert testimony interpreting them and the affidavit from her daughter, who is also a nurse, about an interaction with Emmett in February 2015 in which he denied wanting a divorce, do not meet the burden of establishing Emmett’s incompetency at the time he retained the attorney or executed his verification. See id.

       For the first time on appeal, Betty objects to the verification on the grounds that it is hearsay in the absence of testimony from the notary public. As this issue was not raised before the trial court, we will not consider it for the first time on appeal. Davis v. Whitford Properties, Inc., 282 Ga. App. 143, 145 (1) (637 SE2d 849) (2006).

       The numbers are not in the original text of the Agreement, but have been inserted for ease of discussion.

       The 7th Edition of Black’s Law Dictionary was the most current edition in 2002, when the Agreement was signed by the parties; however, the definition is identical to the definition in the 10th Edition of Black’s Law Dictionary.

       The term “alimony” can only refer to the divorce action mentioned previously in Paragraph 7, and “support” and “division of property” are terms statutorily and commonly used in conjunction with alimony to refer to claims in a divorce. See OCGA § 19-5-5 (b) (6) (“Where alimony or support or division of property is involved, the property and earnings of the parties, if such is known.”); OCGA § 19-6-1 (a) (defining alimony).

       We specifically do not express an opinion on whether any other provision of the Agreement, such as Paragraph 3, affects the disposition of the assets in the estate.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A16A2019.
    SHAW v. THE STATE.
    (798 SE2d 344)
   Branch, Judge.

Following a trial by jury, Kenneth Justen Shaw was convicted of aggravated battery and aggravated assault but acquitted of obstruction of an officer, charges that arose out of a fight at a Waffle House in Forsyth; he was sentenced to ten years in prison followed by ten years of probation. On appeal from the denial of his motion for new trial, Shaw contends that the evidence was insufficient to support the conviction of aggravated battery. He further contends that the trial court erred in instructing the jury and in excluding the testimony of an expert witness. Finally, he contends that he received ineffective assistance of counsel in several regards. For the reasons that follow, we reverse the denial of Shaw’s motion for new trial.

When the appellate courts review the sufficiency of the evidence, they do not “re-weigh the evidence” or resolve conflicts in the testimony; instead they defer “to the jury’s assessment of the weight and credibility of the evidence.” Greeson v. State, 287 Ga. 764, 765 (700 SE2d 344) (2010) (citation omitted). See also Glaze v. State, 317 Ga. App. 679, 681 (1) (732 SE2d 771) (2012). Appellate courts determine whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citations and emphasis omitted).

Construed in favor of the verdict, the evidence presented at trial shows that early on March 22, 2014, the 20-year-old victim and his girlfriend went to the Waffle House and sat in a booth near the restroom, with the victim taking the inside seat. Shaw entered the restaurant at about the same time, along with his wife and sister, and the three eventually went to the restroom together. The victim and his girlfriend heard yelling coming from the restroom, and when Shaw and the two women exited the restroom, Shaw asked the victim, “Did y’all hear us f_screaming in the bathroom?” At this point, the victim concluded that “it was a bad situation.” Shaw then started yelling and pushing his sister and indicating that he was trying to ask the victim and his girlfriend a question. The victim testified:

And then he kept getting closer and, like, standing over us, yelling at us, and cussing at us, like in a threatening manner. . . . He was like, could you hear me [f_] screaming in the bathroom? I’m not going to ask you again, and saying stuff like that. And then that’s when I pulled the knife out of my pocket, laid it on my lap. [] And then I believe the sister saw the knife when I had it in my lap, and she started yelling, you don’t know what he’s been through, you don’t know what the [f_] he’s been through for this country and for you. . . . Then he ended up — he sat down in front of us. [My girlfriend] grabbed the knife and closed it. And that’s when he was smiling and laughing, saying, do you realize how many people I’ve killed with these hands, and what I can do to you with these hands right now?

A waitress arrived in the middle of this conversation and repeatedly requested that Shaw leave the restaurant, but Shaw remained for over a minute. The victim continued:

And then that’s when he started saying, like yelling around the room, saying, he’s disrespecting a f_veteran. . . . And then that’s when I said, you’re not a veteran, because veterans don’t come back and treat civilians like this.

At this point, Shaw “came over the table,” grabbed the victim, picked him up, and began to hit him in the head. The waiter called the police. Shaw wrestled the victim to the ground and bit him on the face; the victim testified that Shaw was “grabbing my head and pulling with his teeth, trying to pull the skin off of my face.” The biting caused a wound that took four months to “close up” and left a scar that was visible at trial. Shaw also “stuck his thumb down in the corner of [the victim’s] eye and tried to pop [the victim’s] eye out.” Shaw repeatedly punched the victim, causing the victim’s head to hit against the floor, which in turn, caused the victim to lose consciousness several times. When the victim attempted to move or get up, Shaw would hit him again to the same effect. The victim suffered a concussion as a result. During the incident, the victim thought that Shaw was going to beat him to death. The State’s witnesses testified that Shaw appeared to be drunk, angry, and aggressive from the beginning of the encounter.

Shaw testified in his own defense that he was 25 years old; had served in the United States Army since he was 19, including at the time of the incident; and was, at the time of trial, employed by a subcontractor to Georgia Power. He testified that he received a medical discharge from the army because he has Tourette’s syndrome, obsessive-compulsive disorder (OCD), a tic or twitch disorder, and post-traumatic stress disorder (PTSD). Shaw testified that on the night before the incident, he, his wife, and his sister attended a social event from 6:30 p.m. to 2:30 a.m. and that he had several drinks over the course of the night. Sometime after leaving the event, Shaw and the two women then went to the Waffle House. Shaw testified that after coming out of the bathroom, he was introduced to the victim and his girlfriend and that he was calmly talking to the couple, apologizing for yelling in the bathroom, and explaining that he yelled because of his Tourette’s syndrome. He testified that he put out his hand to introduce himself to the victim but that the victim would not shake hands. Shaw testified that as he was sitting down he saw the victim pull out a knife and that the victim brought the knife to within a foot of Shaw’s neck. Shaw testified that he thought the victim intended to kill him or cut him, “or something” and that he feared for his life. He testified that as the tension escalated, the waitress came over and told him to go to his own booth and told the victim to put the knife away Shaw testified that he further attempted to calm the victim down but that when the victim’s girlfriend stood up, he became worried that the victim would attack Shaw’s wife and sister. Accordingly, Shaw testified, he then hit the victim with the inside of his hand and his bracelet apparently cut the victim’s cheek. Shaw testified that he and the victim came out of the booth and ended up on the floor where Shaw was able to disarm the victim of the knife. Shaw testified that he had a panic attack after the police arrived, which was corroborated by State witnesses. Shaw’s wife testified in support that she saw the victim holding the knife above the table one to two feet away from Shaw. She also corroborated other aspects of Shaw’s testimony Shaw’s sister did the same.

At the conclusion of the evidence, the court charged the jury on, among other things, the crimes of aggravated assault and the lesser included offense of simple assault, as well as aggravated battery and the lesser included offense of battery. But in charging battery, the court omitted the word “substantial” from the part of the definition of battery that requires a showing of “substantial” physical harm. The jury later asked the court to explain the difference between aggravated battery and “simple battery,” the latter of which had not been charged, and the parties and the court agreed that a “recharge” was appropriate. The court then repeated the aggravated battery charge but did not repeat an instruction on battery; instead it charged the jury on simple battery, and it read that charge to the jury three times. Neither party objected to the court’s action. The jury found Shaw guilty of the greater charges of aggravated assault and aggravated battery

1. Shaw contends the evidence was insufficient to support the conviction of aggravated battery, based solely on the argument that the victim did not sustain a “seriously disfiguring injury.” We disagree.

Shaw was indicted for aggravated battery in that he “did maliciously cause bodily harm to [the victim] by seriously disfiguring a member of his body, by biting into [the victim’s] cheek and tearing open the victim’s flesh, causing scarring ” “Although OCGA § 16-5-24 does not define the term ‘serious[ly] disfiguring,’this Court has ruled that the crime of aggravated battery does not require that the victim’s disfigurement be permanent; however, the injury must be more severe than a mere visible or superficial wound.” Levin v. State, 334 Ga. App. 71, 74 (1) (778 SE2d 238) (2015) (citation and punctuation omitted). The question of whether the defendant’s actions caused “serious disfigurement” is for the jury Underwood v. State, 283 Ga. App. 638, 641 (3) (642 SE2d 324) (2007). Here, the State showed that the victim suffered a concussion and sustained a wound on his face that took months to close up and that left a dime-sized scar. Accordingly, the jury was authorized to conclude that the victim suffered more than just a superficial wound. See, e.g., Jackson v. State, 316 Ga. App. 588, 591 (1) (730 SE2d 69) (2012) (“Whether the scars rose to the level of serious disfigurement was a factual issue for the jury to resolve.”) (citations omitted); Levin, 334 Ga. App. at 73-74 (1) (jury authorized to find serious disfigurement where beating victim had a “bruised and swollen face, with one eye swollen shut, and a ‘goose egg’ on her face[,]” together with bruised and swollen hands and cut feet). Compare Williams v. State, 248 Ga. App. 316, 317-319 (1) (546 SE2d 74) (2001) (evidence insufficient to support aggravated battery conviction where victim sustained minor scratches and bruises and there was no evidence of bleeding wounds or swelling).

The evidence was also sufficient to convict Shaw of aggravated assault as alleged in the indictment — by using his fists to beat the victim in the head and face, “said act placing said victim in reasonable apprehension of immediately receiving a violent injury and causing bruising, swelling, and dizziness.” See OCGA § 16-5-21 (b) (2) (“A person commits the offense of aggravated assault when he or she assaults . . . with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”); Sims v. State, 296 Ga. App. 461, 462 (1) (675 SE2d 241) (2009) (evidence that defendant struck victim with his fists was sufficient to sustain his conviction for aggravated assault because fists are objects which, “when used offensively against another person, are likely to result in serious bodily injury”).

2. Shaw contends the trial court erred in four ways with regard to jury instructions on the various forms of battery. Trial counsel did not object to any of the instances, and we therefore will review the charges only for “plain error which affects substantial rights of the parties.” OCGA § 17-8-58 (b). Our Supreme Court has interpreted this requirement as establishing a four-prong test:

[T]he proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings. If all three of these questions are answered in the affirmative, the appellate court has the discretion to reverse if the error seriously affects the fairness, integrity or public reputation of the proceedings below.

State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011) (citations and punctuation omitted).

The trial court initially charged the jury on the second and third forms of battery — that is, battery and aggravated battery; the court did not initially charge on simple battery, the least violent form of the crime. In its battery charge, the trial court stated that “a person commits the offense of battery when he intentionally causes physical harm or visible bodily harm to another,” thus leaving out that the physical harm required by the statute is “substantial” physical harm. The court also did not give the definition of “visible bodily harm,” which is provided in the statute. OCGA § 16-5-23.1 (b) (“the term ‘visible bodily harm’ means bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts”). When charging on aggravated battery, although Shaw was only indicted on one form of aggravated battery for “seriously disfiguring” the victim by biting him, the court charged on two forms of aggravated battery, by charging that Shaw would have committed aggravated battery if he (1) deprived the victim of a member of his body by rendering it useless, or (2) seriously disfigured the victim’s body or a member thereof. See OCGA § 16-5-24 (a). Then, in response to a jury question asking the court to clarify the difference between aggravated battery and “simple battery,” the court repeated the aggravated battery charge, but instead of repeating the battery instruction, the court mistakenly charged the jury on simple battery, repeating it three times.

Shaw asserts plain error based on four charging errors: (1) the trial court’s failure to instruct the jury that the physical harm required to prove battery must be “substantial”; (2) the trial court’s instruction on simple battery when the jury asked for clarification, as well as the court’s failure to recharge on battery with the correct wording; (3) the court’s failure to read the definition of “visible bodily harm” as a part of the charge on battery; and (4) the court’s failure to charge only on the form of aggravated battery used in the indictment. For the reasons shown below, we conclude that the court committed plain error as described in charging errors Nos. 1 and 2 above, at a minimum.

The State concedes, and we agree, that the court clearly and obviously erred as shown in charging errors Nos. 1 and 2; we also find that the error likely affected the outcome of the trial and that it seriously affected the fairness of the proceedings.

The failure to charge that the physical harm required to prove battery must be “substantial” omitted an essential element of the crime of battery OCGA § 16-5-23.1; Christensen v. State, 245 Ga. App. 165, 166 (1) (a) (537 SE2d 446) (2000). And “the failure to inform the jury of an essential element of the crime charged is reversible error because the jury is left without appropriate guidelines for reaching its verdict.” Chase v. State, 277 Ga. 636, 640 (2) (592 SE2d 656) (2004) (citations omitted). The court again erred in the recharge by failing to recognize that the jury was confused about the various forms of battery, by failing to correct the original error in the definition of battery, and by charging on simple battery, which was not an issue in the case. When a jury requests clarification of the court’s charge, the court has a duty to provide correct charges:

When the jury requests the court to recharge ... on any point, it is the court’s duty to do so. Such further instruction must be in plain, clear language calculated to enlighten rather than confuse the jury.

Quiroz v. State, 291 Ga. App. 423, 426 (3) (662 SE2d 235) (2008) (citation and punctuation omitted). Here, in response to a request for clarification, the court confused the jury by charging on a crime — simple battery — that was not part of the case, repeating the definition of that crime three times, and failing to correct the original erroneous charge on battery.

These errors likely affected the outcome of the trial because it gave the jury the false choice of deciding whether Shaw committed simple battery, which requires the least severe showing of harm of the three forms of battery, or aggravated battery, which requires a showing that the person caused bodily harm to the victim by “seriously disfiguring his or her body or a member thereof.” See OCGA § 16-5-24 (a); see also Williams, 248 Ga. App. at 318 (1) (the statutes create three forms of battery which “categorize the types of battery by the severity of the harm inflicted and to provide harsher penalties for batteries that result in more severe bodily harm”). The jury was obviously confused about the various forms of battery and was deprived of the option of convicting Shaw of battery, both because the original battery charge was flawed and because the recharge put the jury’s focus on simple battery Accordingly, the jury never was instructed properly that it had the option of finding Shaw guilty of battery by “intentionally causing] substantial physical harm or visible bodily harm” to the victim, which can be a misdemeanor and which at most carries a penalty of five years imprisonment. OCGA § 16-5-23.1. “When a given instruction fails to provide the jury with the proper guidelines for determining guilt or innocence, it is clearly harmful and erroneous as a matter of law.” Chase, 277 Ga. at 639 (2) (citation and punctuation omitted). These errors seriously affected the fairness of the proceedings for these same reasons.

Christensen, 245 Ga. App. 165, upon which the State relies, is distinguishable. In that case, the court charged the jury on the visible-injury form of battery (without charging on the “substantial physical harm” form), see OCGA § 16-5-23.1 (a), (b), as well as on aggravated battery for either seriously disfiguring the victim or rendering a member of his body useless, see OCGA § 16-5-24 (a), for which Christensen was convicted. On appeal, Christensen claimed that the trial court erred by failing to charge the jury on simple battery under OCGA § 16-5-23. Christensen, 245 Ga. App. at 165 (1) (a). This Court held that because the victim sustained a substantially blackened eye, “there was no evidence to support a simple battery charge under OCGA § 16-5-23 because it went undisputed that the injury to the victim consisted of‘visible bodily harm.’ ” Id. at 165-166 (1) (a). The court held that Christensen could show no harm from the lack of a charge on simple battery because, “[b]y its verdict, the jury found the additional aggravating circumstances necessary to convict on the greater felony offense,” i.e., aggravated battery. Id. at 166 (1) (a). In other words, given that the jury rejected the second form of battery in favor of the third, Christensen could show no harm by a failure to charge the jury on the lowest form of battery The issue facing the jury in the present case was not the same; it faced the choice of convicting Shaw of the first and third forms of battery, and it was deprived of the opportunity to consider the second form of battery Thus, just because the jury rejected simple battery in the present case does not mean that the jury would not have found that Shaw committed battery.

In conclusion, the trial court plainly erred with regard to charging errors Nos. 1 and 2 and therefore also erred by refusing to grant a new trial on Shaw’s conviction of aggravated battery We therefore need not consider whether the court also plainly erred with regard to charging errors Nos. 3 and 4. We also need not consider any assertions of ineffective assistance of counsel with regard to any charging errors related to the conviction of aggravated battery

3. Shaw next contends that his trial counsel was ineffective “by attempting to present an insanity or delusional compulsion defense without taking the steps necessary to give the jury the option to find Mr. Shaw not guilty by reason of insanity” See OCGA § 16-3-3 (“A person shall not be found guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime.”).

To prevail on this claim, Shaw must prove both that his lawyer’s performance was deficient and that he suffered prejudice as a result of this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). If he cannot meet the burden of proving either prong of the Strickland test, then we need not examine the other prong. Battles v. State, 290 Ga. 226, 229 (2) (719 SE2d 423) (2011). With respect to the first prong, deficient performance, the defendant must show that his attorney performed his duties at trial in an objectively unreasonable way, considering all the circumstances, and in light of prevailing professional norms. Strickland, 466 U. S. at 687-688 (III) (A). To demonstrate that he suffered prejudice, a defendant must prove “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694 (III) (B). “This burden, though not impossible to carry, is a heavy one.” Arnold v. State, 292 Ga. 268, 270 (2) (737 SE2d 98) (2013), citing Kimmelman v. Morrison, 477 U. S. 365, 382 (II) (C) (106 SCt 2574, 91 LE2d 305) (1986). On appeal “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000) (citations omitted).

The record from the trial shows irreconcilable inconsistency in Shaw’s counsel’s approach to defending Shaw. Several weeks before trial, Shaw’s counsel listed Dr. Thomas Sachy, Shaw’s psychiatrist, on a witness list. Just prior to trial, and apparently in anticipation of Shaw’s strategy, the State proposed jury instructions that included instructions on the defense of insanity and mental illness. And one day before trial, Dr. Sachy spoke to a prosecutor and explained that he had been treating Shaw for a year leading up to trial for symptoms, including that he repeatedly and uncontrollably prayed out loud during battle, which, the prosecutor advised the court during pretrial discussions, would cause the jury to believe that Shaw was not sane. As trial proceedings commenced, the State pointed out that Shaw had not followed required procedures for asserting a defense based on insanity or other mental illness, including giving proper notice of the proposed use of an expert witness and producing the witness’s opinion; the court sustained the objection.

Shaw’s counsel replied that Shaw was not making a defense of that type:

As to the insanity, we’ve tried to stay away from that as much as we could, because he’s 25 years old and has the rest of his life in front of him. And if he’s found not guilty because of insanity, it’s going to be hard for him to make a living for the rest of his life. So we’re not looking for a not guilty by reason of insanity in this case.

Even so, Shaw’s counsel indicated that Dr. Sachy was a possible witness, yet counsel admitted that he had not hired or talked to Sachy for more than five minutes before trial. Counsel stated to the court, “We don’t know whether the doctor will qualify as an expert or not,” and counsel would decide whether Sachy would testify when counsel was able to speak to Sachy at noon on the first day of trial. During the presentation of the evidence, Shaw’s counsel attempted to call Sachy to the stand, whereupon the State objected on the ground that it had not received proper notice that Sachy would be testifying as an expert. The court agreed and barred Sachy from testifying, but allowed Shaw’s counsel to make a proffer of Sachy’s testimony. Shaw’s counsel then asked whether Sachy could testify as Shaw’s doctor, which the court also denied on the ground that Sachy was not a fact witness to the crime and that any testimony about Shaw would necessarily fall into the category of expert testimony In the proffer, Sachy testified that he had been treating Shaw for Tourette’s syndrome, anxiety disorder, OCD, and PTSD.

With the jury back in court, Shaw’s counsel elicited testimony from two witnesses and Shaw to show that Shaw suffered from a variety of mental illnesses. Shaw’s wife testified that Shaw had Tourette’s symptoms including peculiar movements, verbal tics, an elevated voice, yelling, and constant praying, sometimes aloud. She testified that Shaw was experiencing elevated levels of his symptoms at the Waffle House. Shaw’s sister testified on cross-examination that Shaw had Tourette’s and PTSD. Shaw testified on direct that he developed neurological problems in the Army, including Tourette’s syndrome, OCD, PTSD, and a “tic disorder,” and he expounded on how some of those issues manifest themselves in his life and how they affected him on the night of the incident.

Following the presentation of evidence, Shaw’s counsel then requested a jury charge on delusional compulsion, which was denied on the grounds that Shaw had not properly raised any defense regarding Shaw’s mental state because Shaw did not give the State notice of an insanity defense. Yet during closing, Shaw’s counsel argued to the jury “You were told that he had Tourette’s and . . . how it affects him. And the OCD, how that affects him”; that Shaw has “two diseases: Attention Deficit Disorder [sic] [and] Post Traumatic Stress”; that Shaw had “wounds that are not visible” and that he was a “wounded warrior”; and that “[t]here’s a difference between being sick and being a criminal. You’ve got to decide which one Mr. Shaw is. Is he sick or is he a criminal?”

At the hearing on the motion for new trial, Shaw’s trial counsel testified that he had been practicing law about 60 years, and he stated at trial that he had not tried a case in 15 years. Shaw’s trial counsel then proceeded to give self-contradictory testimony regarding his strategy for defending Shaw. He testified that he spent a lot of time with Shaw getting ready for the trial and that he had no problem communicating with Shaw. Counsel testified that he reviewed possible defenses with Shaw and developed the opinion that self-defense was the best approach. When asked if he thought that Shaw’s mental illness would play a role in the defense, Shaw’s counsel responded, “I don’t think so.”

Yet Shaw’s counsel testified that prior to trial, he tried repeatedly to contact Dr. Sachy but that Sachy would never respond. He was able to obtain some of Shaw’s military medical records. Other than these efforts, Shaw’s counsel made no effort to investigate Shaw’s mental health; he never had Shaw evaluated by a mental health professional. Shaw’s counsel testified that “we .. . did not try to show [Shaw] was insane or anything like that because he wasn’t and it’s dangerous giving a public perception of somebody being mentally ill. It makes it hard for them to live the rest of their life, and we tried to protect [Shaw] that way as much as we could.” (emphasis supplied). He reiterated that he did not believe that Shaw was “insane.” Counsel testified that he understood the insanity defense to be applicable when a person cannot distinguish between right and wrong. And he did not do any research into the consequences of a verdict of not guilty by reason of insanity other than his recollections of one of his own cases from the past. Counsel testified that his comment to the jury about them having to decide whether Shaw was “sick” was simply intended to get them to acquit him. Yet he admitted that he asked for a charge on delusional compulsion and thought that Shaw was entitled to such a charge based on the panic attack that Shaw suffered after the police arrived.

Also at the hearing on the motion for new trial, Shaw’s wife and Shaw testified that they thought that Shaw’s mental health issues would factor into his defense at trial. Shaw also testified that his trial counsel began representing him approximately one year prior to the trial and that counsel was provided with Shaw’s medical records from his military service and contact information for Shaw’s treating psychiatrist.

(a) With regard to deficient performance of counsel, the Supreme Court of Georgia has described the principles of Strickland as they relate to defense counsel’s decisions regarding investigation, including strategic choices made after less than complete investigation:

Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.

Martin v. Barrett, 279 Ga. 593, 593-594 (619 SE2d 656) (2005) (punctuation omitted), quoting Wiggins v. Smith, 539 U. S. 510, 521-522 (II) (A) (123 SCt 2527, 156 LE2d 471) (2003). Furthermore, in the absence of some other determination regarding the defendant’s mental state, “where a defense attorney has received information from a reliable source that his client has had a history of psychiatric problems, but failed to adequately investigate this history, counsel failed to provide effective assistance.” Martin, 279 Ga. at 594 (citations and punctuation omitted). And attorneys usually may not rely on their own assessment of the defendant’s mental health. Id. at 595 (“It must be a very rare circumstance indeed where a decision not to investigate would be ‘reasonable’ after counsel has notice of the client’s history of mental problems.”) (citation and punctuation omitted).

Here, we conclude that Shaw’s trial counsel’s performance was deficient in that he either seriously mishandled an attempt to assert a defense of delusional compulsion or made an unreasonable decision not to investigate the possibility of asserting that defense.

As shown above, Shaw’s trial counsel was aware at the time of trial that Shaw likely had PTSD and other maladies that could have affected his behavior on the night of the incident. Even the State, after a brief telephone call with Dr. Sachy, objected to his testimony on the ground that it would lead the jury to conclude that Shaw was insane. And although counsel had listed Dr. Sachy, Shaw’s psychiatrist, as a witness weeks before trial, counsel did not speak with Sachy during that time and did not properly notify the State of an intent to assert an insanity defense or to call an expert witness. Further, and although counsel claimed at the start of trial that he had made a decision not to assert such a defense because of the potential stigma that Shaw might suffer in the future, Shaw’s counsel unsuccessfully continued to present testimony from Sachy about Shaw’s mental state; hoped he could still qualify Sachy as an expert; elicited testimony from Shaw, his wife, and sister about Shaw’s mental condition and the effect it had on him on the night of the incident; unsuccessfully attempted to have the court charge the jury on the defense of delusional compulsion; and argued to the jury that they should acquit Shaw because he was “sick.”

Moreover, the evidence strongly suggests that counsel did not fully understand the defense of delusional compulsion and did not perform any research about the effect of asserting such a defense. Counsel testified that he understood the insanity defense to mean inability to distinguish right from wrong. That understanding is correct, see OCGA § 16-3-2, but counsel failed to describe a delusional compulsion, which allows a defense even if the defendant understands the difference between right and wrong. And a decision “based upon [a] lack of understanding of or familiarity with the relevant law” is not strategic. Sullivan v. Kemp, 293 Ga. 770, 774 (2) (749 SE2d 721) (2013).

Even if Shaw’s counsel did make the strategic decision not to assert an insanity defense, that decision, too, was legally flawed. Counsel testified that he based his decision, in part, on the fact that he had concluded, without expert advice, that Shaw was not insane: “I didn’t think he was insane.” Thus, to the best of his recollection, he did not anticipate that Shaw’s mental condition would play a role in the defense. Yet the Supreme Court has made clear that a lawyer is not authorized to make such a determination on his own:

[W]here a condition may not be visible to a layman, counsel cannot depend on his or her own evaluation of someone’s sanity once he has reason to believe an investigation is warranted because, where such a condition exists, the defendant’s attorney is the sole hope that it will be brought to the attention of the court.

Martin, 279 Ga. at 595 (citation, punctuation and emphasis omitted). Here, Shaw’s counsel knew at the time of trial that Shaw had been in combat, had psychological disorders, and was seeking treatment from a psychiatrist, yet he relied on his own opinion that Shaw was not insane, a defense that counsel appears to have only partially understood, without performing additional investigation, in deciding not to pursue a delusional compulsion defense.

For the above reasons, we conclude that trial counsel’s performance was deficient under Strickland.

(b) With regard to harm, we conclude that the deficient performance was sufficient to undermine confidence in the outcome of the trial.

At the hearing on the motion for new trial, Shaw presented the testimony of Dr. Kevin Richards, a licensed psychologist certified in forensic psychology by the American Board of Forensic Psychology with significant experience evaluating members of the military and those who have been released from the military. Richards had examined Shaw and prepared a report of his opinions based on that examination. Richards diagnosed Shaw as having Tourette’s syndrome, OCD, and PTSD. Shaw had been diagnosed previously with Tourette’s and OCD when he was in the military, and Richards found Shaw’s condition to be consistent with the findings of the military doctors. Richards testified that Tourette’s can cause Shaw to yell obscenities, that it can be exacerbated by stress, and that it can cause Shaw to appear to be under the influence of alcohol or drugs. He testified that Shaw’s OCD causes him to be unable to “disengage from an interaction unless he believes things are positive,” and that a situation can cause him to become increasingly anxious as he continues “to make efforts to make [an] interaction end on a positive note.” Finally, Richards testified that PTSD can cause a person to perceive that they are experiencing a stressful situation that, in fact, they are not in. Specifically, Shaw had a PTSD symptom that can cause him to believe that he is in danger when he is not. It causes him to direct his behavior “based on a faulty perception ... then behaving as if that belief were true or that perception were true.” Richards also performed psychological tests to determine whether Shaw was feigning his symptoms, and Richards concluded that he was not.

Based on the above diagnoses, Richards testified that Shaw’s Tourette’s symptoms could have caused Shaw to make involuntary verbal noises in the restroom that sounded like arguing and could have made Shaw appear to be “bizarre” when Shaw approached the victim and his girlfriend; that when he approached the victim, Shaw’s OCD caused him to sense that the victim was not responding and that the interaction was not a positive one, so he sat in the booth and persisted in speaking with the victim; that because of his PTSD, when Shaw saw a knife, he thought he was in a life-threatening situation and that “he started to sort of go into military mode and he was looking for an escape route and figuring out how to protect the people he was with and himself”; that even if the knife had been put away, Shaw thought it was still there; and that as a result, Shaw did not believe that he had any option other than to disable and disarm the victim. Richards testified that in his opinion, the incident represented “an acute episode of [Shaw’s] illnesses where the symptoms were acutely exacerbated.” Richards concluded that Shaw’s behavior amounted to a delusional compulsion under the circumstances and that he would have given the same testimony if called at trial. He admitted, however, that Shaw’s consumption of alcohol could have exacerbated Shaw’s symptoms, but his overall opinion was that Shaw’s symptoms that night were explained by his mental condition, not by alcohol or any medications that he might have been taking.

Decided March 15, 2017.

Strickland Webster, Sydney R. Strickland, Leigh Ann Webster, for appellant.

Richard G. Milam, District Attorney, Matthew W. Bridges, Mark S. Daniel, Assistant District Attorneys, for appellee.

This testimony was sufficient to raise a reasonable probability that the jury would have accepted the defense of delusional compulsion. Such a defense is available only when the defendant is “suffering under delusions of an absurd and unfounded nature and was compelled by that delusion to act in a manner that would have been lawful and right if the facts had been as the defendant imagined them to be.” Woods v. State, 291 Ga. 804, 811 (3) (733 SE2d 730) (2012) (citation, punctuation and emphasis omitted). “A finding of insanity based upon OCGA § 16-3-3 requires proof that (1) the accused acted under a delusional compulsion; (2) the criminal act was connected with the delusion; and (3) the delusion related to a fact which, if true, would have justified the act." Appling v. State, 222 Ga. App. 327, 329 (3) (474 SE2d 237) (1996) (citation omitted). Here, all three requirements were shown.

In sum, Shaw has established that he received ineffective assistance of counsel in that his counsel either seriously mishandled an attempt to assert a defense of delusional compulsion or made an unreasonable decision not to investigate the possibility of asserting that defense. For this reason, we reverse the denial of his motion for new trial. See Fedak v. State, 304 Ga. App. 580, 586(1) (696 SE2d 421) (2010) (ineffective assistance established where there was a reasonable probability “that had trial counsel investigated [the defendant’s multiple sclerosis] and its impact on his cognitive abilities and presented evidence regarding the same, that evidence could have influenced the outcome of the trial”) (citation and punctuation omitted). We need not reach the remaining enumerations of error on the ground that they are not likely to recur at trial.

Judgment reversed.

Mercier, J., concurs. Ellington, P. J., concurs in judgment only.

       Appellant’s citations to the record are not in proper form. We remind the bar that the Rules of the Court of Appeals require that record and transcript citations must be to the volume or part of the record or transcript and the page numbers that appear on the appellate records or transcript as sent from the court below. See Rule 25. Accordingly, parties should not cite to the page number of a document, such as a deposition or affidavit, included in the record but rather to the record page number.

       The victim’s girlfriend testified that the blade was open.

       Videotape evidence of the incident was introduced, but it is from a distance and taken from behind the victim.

       “A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.” OCGA § 16-5-24 (a).

       The trial court held, in part, that although Shaw failed to object to the various battery charges, the charge was not “so erroneous to rise to the level of substantial or harmful error as contemplated by [OCGA § 5-5-24].” Although that Code section is applicable to civil cases, the two statutes are “consonant” with each other. State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011).

       Simple battery is a misdemeanor, one form of which requires a showing of “physical harm to another.” OCGA § 16-5-23 (a) (2). Battery is a more aggravated offense because it requires proof of “substantial physical harm or visible bodily harm.” OCGA § 16-5-23.1 (a). Aggravated battery is a felony that requires additional proof of (i) malice, and (ii) bodily harm which seriously disfigures or renders a member of the victim’s body useless. OCGA § 16-5-24 (a); see also Christensen v. State, 245 Ga. App. 165, 166 (1) (a) (537 SE2d 446) (2000).

       The jury had not been charged on simple battery at this point and apparently meant to ask the difference between battery and aggravated battery, the charges it had already been given.

       The court charged OCGA § 16-5-23 as follows:
      A person commits the offense of simple battery when he or she either: One, intentionally makes physical contact of an insulting or provoking nature with the person of another. Or, two, intentionally causes physical harm to another.

       “General insanity is not a defense to a crime; the only defenses recognized in Georgia are found in OCGA § 16-3-2 . . . (no capacity to distinguish right from wrong at the time of the act, omission, or negligence) and OCGA § 16-3-3 . . . (delusional compulsion at the time of the act, omission, or negligence constituting the crime).” Gould v. State, 168 Ga. App. 605, 609 (4) (309 SE2d 888) (1983); Reeves v. State, 196 Ga. 604, 614-615 (a) (27 SE2d 375) (1943) (“even if one has reason sufficient to distinguish between right and wrong, yet if in consequence of some delusion the will is overmastered, and there is no criminal intent, he is not responsible, provided that the act itself is connected with the peculiar delusion under which the defendant is laboring”) (citation omitted).


author: REESE, Judge.

text:
    A16A2146.
    RUTLEDGE v. THE STATE.
    (798 SE2d 355)
   REESE, Judge.

In April 2012, Louis Rutledge, Jr. (“Appellant”), pled guilty to burglary in the Superior Court of Troup County He appeals pro se from the trial court’s order denying his motion for an out-of-time appeal, in which he claimed that his guilty plea was invalid because neither the trial court nor his defense counsel informed him that, if he were sentenced as a recidivist under OCGA § 17-10-7 (c), he would not be eligible for parole. In his motion, Appellant also claimed that his trial counsel failed to notify him of his right to challenge the validity of his guilty plea on direct appeal or in a habeas corpus proceeding. Finally, Appellant contends that the trial court erred in finding that these issues could not be decided on the trial court’s record and plea hearing transcript. For the reasons set forth infra, we affirm.

The record shows the following undisputed facts. The State indicted Appellant for one count of burglary under former OCGA § 16-7-1 (b); the indictment did not charge Appellant as a recidivist. However, the State subsequently filed a notice of intent to introduce Appellant’s criminal history during sentencing and to request that Appellant be sentenced as a recidivist under OCGA § 17-10-7. The notice showed that Appellant had been convicted of at least four prior burglaries, as well as other offenses. In April 2012, Appellant entered into a negotiated guilty plea to the burglary charge. Given Appellant’s previous convictions, the trial court sentenced him as a recidivist to twenty years, with nine years to serve in prison, pursuant to OCGA § 17-10-7 (a) and (c).

OCGA § 17-10-7 (a) provides that a convicted felon who commits a subsequent felony offense must be sentenced to the longest period of imprisonment prescribed for the subsequent offense, although the trial court may probate or suspend that maximum sentence unless otherwise provided by law. Further, subsection (c) of the statute provides that a person who commits a felony after having been convicted of three prior felonies must serve the maximum time provided in his or her sentence and shall not be eligible for parole until that sentence has been served. Consequently, the trial court’s sentence required Appellant to serve the first nine years of his sentence in prison without the possibility of parole; the sentence then allowed Appellant to serve the remaining eleven years of his sentence on probation.

In 2014, Appellant filed a motion to withdraw his guilty plea, contending he had recently learned that, because he was sentenced as a recidivist under OCGA § 17-10-7 (c), he was ineligible for parole. He asserted that, because neither the trial court nor his counsel notified him that he would not be eligible for parole if sentenced as a recidivist, he did not enter his guilty plea knowingly, intelligently, and voluntarily. According to Appellant, if he had been so informed, he would not have pled guilty to the charge. The trial court denied the motion, ruling that, because the term of court in which Appellant had been sentenced pursuant to his guilty plea had expired, the court lacked jurisdiction to allow the withdrawal of the plea.

In May 2016, Appellant filed a motion for an out-of-time appeal, once again contending that, at the time he entered his plea, neither the trial court nor his counsel had informed him that being sentenced as a recidivist under OCGA § 17-10-7 (c) meant that he would not be eligible for parole. He also complained that his counsel had never advised him of his right to challenge the validity of his plea on appeal or in a habeas proceeding. The trial court denied Appellant’s motion for an out-of-time appeal, finding that these issues could not be decided on the record. Appellant then filed the instant appeal from that order, contending that the trial court abused its discretion in denying his motion for an out-of-time appeal.

The Supreme Court of Georgia has set out a comprehensive overview of the substantive and procedural issues to be considered when a defendant who has entered a guilty plea in the trial court appeals from the denial of his motion for an out-of-time appeal, as follows:

Out-of-time appeals are designed to address the constitutional concerns that arise when a criminal defendant is denied his first appeal of right because the counsel to which he was constitutionally entitled to assist him in that appeal was professionally deficient in not advising him to file a timely appeal and that deficiency caused prejudice. Thus, an out-of-time appeal is appropriate when a direct appeal was not taken due to ineffective assistance of counsel.
In order to bring an out-of-time appeal on the grounds that trial counsel was ineffective, Appellant must necessarily have had the right to file a direct appeal. Although a criminal defendant has the absolute right to file a timely direct appeal from a judgment of conviction and sentence entered after a jury or bench trial, a criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea. A direct appeal from a judgment of conviction and sentence entered on a guilty plea is only available if the issue on appeal can be resolved by reference to facts on the record. The ability to decide the appeal based on the existing record thus becomes the deciding factor in determining the availability of an out-of-time appeal when the defendant has pled guilty. Issues regarding the effectiveness of counsel are not reached unless the requirement that the appeal be resolved by reference to facts on the record is met.
Appellant must establish a good and sufficient reason which entitles him to an out-of-time appeal. To meet this burden, Appellant is required to set forth the questions he would raise should the appeal be granted and show that these questions could be answered by facts in the record. He cannot merely allege that he was not informed of his right to appeal.
If the appellate questions Appellant proposes could not be resolved exclusively on the basis of the existing record, then Appellant would have had no right to file a timely direct appeal and therefore no right to an out-of-time appeal. Instead, Appellant must pursue any claims that require an expansion of the record in a habeas corpus petition. If the appellate questions Appellant proposes could be resolved by using the existing record, but these questions can be resolved against him, then Appellant had no right to file a timely notice of direct appeal and therefore no right to an out-of-time appeal.
On the other hand, if the appellate questions raised by Appellant can be resolved in his favor by using the existing record, then Appellant must show that his counsel was ineffective in not filing a timely direct appeal. To demonstrate ineffectiveness, Appellant must show that his trial counsel provided deficient performance and that, but for such unprofessional performance, there is a reasonable probability that the outcome of the proceeding would have been different,.

Decided March 15, 2017.

Louis Rutledge, Jr., pro se.

“We review a trial court’s denial of a motion for an out-of-time direct appeal for an abuse of discretion.” With these guiding principles in mind, we turn now to Appellant’s specific claims of error.

Appellant contends that the trial court abused its discretion in denying his motion for an out-of-time appeal because his trial counsel never informed him of his right to challenge the validity of his guilty plea on direct appeal. Although the record supports Appellant’s contention that he was not informed, and possibly even misled, regarding the consequences of his guilty plea on his parole status, such a claim is not properly raised in a motion for an out-of-time appeal. Indeed, the Supreme Court of Georgia has held that a claim that counsel was ineffective by “failing to advise [a defendant] about his parole eligibility and his appellate rights[,] ... cannot be resolved solely by facts in the record, but would require a post-plea evidentiary hearing.” Thus, such “allegations are not subject to review stemming from a motion for out-of-time appeal, but must be pursued in an action for habeas corpus.” For these reasons, we affirm the trial court’s denial of Appellant’s motion for an out-of-time appeal.

Judgment affirmed.

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

Peter J. Skandalakis, District Attorney, James L. Powers, Assistant District Attorney, for appellee.

       The Georgia General Assembly amended OCGA § 16-7-1 in 2012. See Ga. L. 2012, pp. 899, 907, § 3-1. The amendment became effective on July 1, 2012, and provided that “[a]ny offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense).]” See Ga. L. 2012, pp. 899, 949, §§ 3-1, 9-1 (a).

       In 2011, when Appellant committed the burglary at issue, the maximum sentence for a burglary conviction was 20 years. See former OCGA § 16-7-1 (a), (b).

       See Davis v. State, 274 Ga. 865 (561 SE2d 119) (2002).

       “The denial of a motion for an out-of-time appeal is directly appealable when the criminal conviction at issue has not been the subject of direct appeal.” English v. State, 307 Ga. App. 544, 545, n. 4 (705 SE2d 667) (2010) (citation omitted). The record here indicates that Appellant’s conviction had not been the subject of a direct appeal at the time he filed his motion for an out-of-time appeal.

         Wetherington v. State, 296 Ga. 451, 453-454 (1) (769 SE2d 53) (2015) (citations and punctuation omitted). See also Strickland v. Washington, 466 U. S. 668, 694 (III) (3) (104 SCt 2052, 80 LE2d 674) (1984).

        Arrington v. State, 332 Ga. App. 481 (773 SE2d 430) (2015) (citation omitted).

        Burns v. State, 291 Ga. 547, 548 (1) (c) (731 SE2d 681) (2012); see Gibson v. State, 290 Ga. 516, 517 (2) (b) (722 SE2d 741) (2012) (holding that a claim of ineffective assistance of counsel could not be resolved by the facts in the record and must be pursued in an action for habeas corpus); Smith v. State, 287 Ga. 391, 405 (4) (697 SE2d 177) (2010) (notingthat when, inter alia, the defendant could not show from the record that he would not have pleaded guilty if he had been properly advised about the effect of his plea on his immigration status, he was required to expand the record by filing a petition for habeas corpus).

        Burns, 291 Ga. at 548 (1) (c) (citations omitted); Brown v. State, 290 Ga. 321, 322 (5) (720 SE2d 617) (2012) (holding that claims of ineffective assistance of counsel could not be resolved on the facts appearing in the record and that, under such circumstances, the defendant’s remedy is to file a petition for habeas corpus).


author: Andrews, Judge.

text:
    A17A0390.
    INGLES MARKETS, INC. v. RHODES.
    (798 SE2d 340)
   Andrews, Judge.

Penny Rhodes sued Ingles Markets, Inc. for damages after she slipped and fell at an Ingles grocery store. The trial court denied Ingles’s motion for summary judgment, and Ingles filed an application for interlocutory review, which we granted. For reasons that follow, we reverse.

On appeal from a summary judgment ruling, we review the record de novo, construing the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmoving party. See Adamchick v. Cracker Barrel Old Country Store, 281 Ga. App. 677 (637 SE2d 44) (2006). A defendant is entitled to judgment as a matter of law when “the record lacks evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case.” See id. (punctuation omitted). On summary judgment,

[t]he defendant does not need to affirmatively disprove the plaintiff’s case, but may prevail simply by pointing to the lack of evidence. If the defendant does so, the plaintiff cannot rest on [her] pleadings, but must point to specific evidence that gives rise to a triable issue of fact.

Id. (punctuation omitted).

Viewed favorably to Rhodes, the record shows that she visited an Ingles grocery store on November 13, 2012, to purchase items for Thanksgiving dinner. During the shopping trip, Rhodes walked down Aisle 8, which housed baking products such as sugar, cooking oil, and canned milk. She picked up two cans of milk, began walking back up the aisle, slipped on grease or oil, and fell to the floor. While on the floor, Rhodes saw a grease spot that “looked like it. .. had been there for a while” and “was trying to dry up.” She asserted that it appeared to be “trying to dry, but [it was] still greasy like, ashy like.” According to Rhodes: “That’s what it looked like, you know. . . . That’s what it looked like to me when I was down there. I don’t know, but that’s what it looked like.”

After her fall, Rhodes went to the customer service desk, where she reported the incident to Ellen Albo, Ingles’s customer service manager. Albo immediately prepared an incident report, which stated that the fall had occurred at 2:05 p.m. and that Rhodes had “[sjlipped in oil.”

The record shows that Ingles had a safety policy in place that required a member of the management team to visually inspect the store at least every two hours. Albo described the inspection procedure as follows:

[A] manager walks the entire store to make sure that there are no potential hazards on the floor. If anything is found on the floor during the inspection, it is immediately cleaned or removed. After completing each inspection, the manager initials the “sweep log.”

Pursuant to the safety policy, Albo inspected the store at approximately 8:00 a.m., 10:00 a.m., 12:00 p.m., and 2:00 p.m. on the day Rhodes fell. During the 2:00 p.m. inspection, she “walked the front aisle of the store, looking down each of the numbered grocery aisles to ensure that the floor was clean and free of hazards.” Albo also walked up and down Aisle 8. As she explained: “It is my habit to pay particular attention to Aisle 8 during my store inspections because if sugar spills onto the floor, it is very slippery and it can be more difficult to see than other types of spills.”

When Albo inspected Aisle 8 at approximately 2:00 p.m., “there was no oil or other foreign substance on the floor.” No more than ten minutes later, Rhodes approached Albo to report her fall. Albo completed the incident response paperwork with Rhodes, then went to Aisle 8, where she saw small drops of oil clearly visible on the floor, as well as oil on the shelf where cooking oil was stocked.

Rhodes sued Ingles in premises liability, alleging that Ingles failed to keep the store safe for invitees. The trial court denied Ingles’s motion for summary judgment, but issued a certificate of immediate review, and we granted Ingles’s application for interlocutory appeal.

Pursuant to OCGA § 51-3-1, an owner or occupier of land who invites “others to come upon his premises for any lawful purpose, . . . is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” Mere proof of an injury, however, does not establish liability See Adamchick, 281 Ga. App. at 678. “[TJhe true basis for liability is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm.” Id. (citation and punctuation omitted). To demonstrate superior knowledge in a foreign substance slip-and-fall case, a claimant must show (1) that the proprietor had actual or constructive knowledge of the substance and (2) that the claimant lacked equal knowledge. See Roberson v. Winn-Dixie Atlanta, 247 Ga. App. 825 (544 SE2d 494) (2001).

Ingles argues that Rhodes cannot meet the superior knowledge requirement. We agree. Rhodes has pointed to no evidence of actual knowledge. Instead, the issue is whether Ingles had constructive knowledge of the hazard, which may be established in two ways:

[1] by showing that an employee of the defendant was present in the immediate area and could easily have seen the substance and removed it; or [2] by showing that the substance was on the floor for such a time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises.

Roberson, 247 Ga. App. at 826 (citation omitted).

The evidence does not raise a question of fact as to either method of proof. Rhodes has not produced any evidence that an Ingles employee was present in the immediate area where she fell and could have easily seen or removed the oil. And there is no competent evidence that the oil was on the floor for such a time that it would have been discovered through a reasonable inspection. On the contrary, Albo testified that the floor was clean when she inspected the area just ten minutes before Rhodes fell.

“In cases where a proprietor has shown that an inspection occurred within a brief period prior to an invitee’s fall, we have held that the inspection procedure was adequate as a matter of law.” Brown v. Host/Taco Joint Venture, 305 Ga. App. 248, 252 (699 SE2d 439) (2010) (citation and punctuation omitted). Generally, inspections conducted 15 minutes prior to a fall meet this standard. See id.; Adamchick, 281 Ga. App. at 677; Super Discount Mkts. v. Clark, 213 Ga. App. 132, 133-134 (443 SE2d 876) (1994); Roberson, 247 Ga. App. at 826; Mazur v. Food Giant, 183 Ga. App. 453, 454 (1) (359 SE2d 178) (1987). As we have explained, “a proprietor is under no duty to patrol the premises continuously in the absence of facts showing that the premises are unusually dangerous.” Mazur, 183 Ga. App. at 453 (1) (citation omitted).

Rhodes has not cited any evidence that the area where she fell was unusually dangerous or that Albo’s inspection was unreasonable. Although Albo paid close attention when inspecting Aisle 8 because sugar spills are slippery and difficult, to see, nothing indicates that spills on Aisle 8 were particularly common, and Rhodes admittedly slipped on oil, not sugar. See Markham v. Schuster’s Enterprises, 268 Ga. App. 313, 315-316 (601 SE2d 712) (2004) (evidence that proprietor knew floor was wet did not create issue of fact as to premises liability where claimant testified that she slipped on grease). Compare Food Lion v. Walker, 290 Ga. App. 574, 577 (1) (660 SE2d 426) (2008) (although grocery store manager inspected meat area 15 or 20 minutes before claimant slipped on chicken blood, question of fact remained as to reasonableness of inspection where the store “knew that its fresh chicken leg quarters were on sale and that they inevitably dripped a mixture of blood and water on the floor”).

Decided March 15, 2017.

Mabry & McClelland, James W. Scarbrough, Tracey L. Pruiett, for appellant.

Hinton & Powell, A. Jack Hinton, Jr.; Montlick & Associates, Kathleen M. Edwards-Opperman, for appellee.

Pointing to her own testimony that the oil “looked like it had been there for a while,” Rhodes argues that questions of fact remain regarding when Albo actually inspected Aisle 8. Again, however, Albo offered clear, direct testimony that she inspected the area no more than ten minutes before Rhodes reported the fall. In contrast, Rhodes vaguely asserted that the oil appeared to be “trying to dry” and looked “ashy,” ultimately stating, “I don’t know.” These statements, which are not necessarily inconsistent with Albo’s testimony that the floor was spill-free ten minutes earlier, do not create a factual issue here. See Brown, 305 Ga. App. at 253 (“In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.”) (citation and punctuation omitted); Mazur, 183 Ga. App. at 454 (1) (“[A] fact shown by direct, uncontradicted, reasonable and unim-peached evidence cannot be disproved by circumstantial evidence consistent with such direct evidence.”) (citation and punctuation omitted).

Rhodes cannot establish that Ingles had superior knowledge of the oily hazard on which she fell. The trial court, therefore, erred in denying Ingles’s motion for summary judgment. See Brown, 305 Ga. App. at 253; Adamchick, 281 Ga. App. at 678.

Judgment reversed.

Ellington, P. J., and Rickman, J., concur in judgment only.


text:
    A17A0503.
    MARTIN v. THE STATE.
    (798 SE2d 326)
   Andrews, Judge.

Following a jury trial, Cuba Alaska Martin III was convicted of armed robbery. Martin appeals, asserting that the trial court erred in admitting identity evidence under OCGA § 24-4-404 (b). Finding no error, we affirm.

Viewed favorably to the verdict, Watford v. State, 332 Ga. App. 499, 502 (1) (773 SE2d 452) (2015), the evidence shows that on December 11, 2012, Oralia Reyes-Gaucin was walking home from work along West Avenue in Gainesville, talking on her cell phone. She noticed two men walking on the other side of the street but did not pay much attention to them. Suddenly, one of the men approached her from behind. He moved in close, demanded her phone, and snatched it from her hand. He then reached for Reyes-Gaucin’s purse. As the two struggled, the man pushed Reyes-Gaucin to the ground. He grabbed her purse while placing a small, black object that she believed to be a gun against her head. Reyes-Gaucin closed her eyes, and the two men fled. A short time later, she saw a white vehicle leaving the area.

Reyes-Gaucin reported the robbery to police, describing her assailants’ race and height. She also indicated that the gunman wore a mask and that both were dressed in dark clothing. Reyes-Gaucin’s debit card, which had been in her purse, was used at a gas station later that evening. The next morning, a police officer located Reyes-Gaucin’s purse on a street near the robbery scene. Her debit card was inside the bag, but her cash was missing.

The investigator assigned to the case had few initial leads. In the spring of 2013, however, he received information implicating Ciera Wilson in the crime. The investigator interviewed Wilson, who indicated that Martin and his cousin, Rytavious Ellison, had robbed Reyes-Gaucin, then used her debit card to fill several cars with gasoline. The police searched a white car belonging to Martin’s sister and discovered a small, black handgun bearing Martin’s fingerprint under the front seat.

Wilson testified against Martin at trial, providing the following account of events. On the night of the robbery, she and Ellison got into her car, and Ellison instructed her to follow behind Martin, who was driving a white SUV. They parked off of West Avenue, and Ellison and Martin left the area, instructing Wilson to wait for them in the car. Approximately 15 to 20 minutes later, Wilson heard a woman scream, and Ellison and Martin ran back to the cars. Martin was holding a small, dark handgun, and Wilson observed him throw a purse onto the passenger seat of his vehicle. He also had a ski mask with him. Ellison told Wilson to “go really fast,” and she sped away, traveling in the opposite direction of Martin. The three met up at Martin’s house a short time later, after which Martin and Ellison rifled through the purse, took the cash, and went to the gas station. Ellison later told Wilson that Martin had approached a woman on the street and taken her purse at gunpoint.

1. On appeal, Martin argues that the trial court erred in admitting other-crimes evidence under OCGA § 24-4-404 (b). Specifically, the State presented evidence that on January 19, 2013, another Hispanic woman walking in Gainesville was robbed by two men wearing dark clothing and traveling in a white SUV. According to the victim, Lucina Mayo-Romero, one of the men pointed a gun at her, while the other snatched her purse from her arm. A few days later, her purse was found discarded on the side of the road. The victim identified Martin as the man who had snatched her purse. She further testified that the small gun seized from the car belonging to Martin’s sister was similar to that used by the gunman.

Pursuant to OCGA § 24-4-404 (b):

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

Atrial court properly admits other-crimes evidence when (1) the evidence is relevant to an issue other than the defendant’s character; (2) its probative value is not substantially outweighed by undue prejudice; and (3) there is sufficient proof for the jury to find by a preponderance of the evidence that the defendant committed the other act. See Brannon v. State, 298 Ga. 601, 606 (4) (783 SE2d 642) (2016). We review the admission of such evidence “for a clear abuse of discretion,” making “a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness.” Id. (citation and punctuation omitted).

Martin argues that evidence of the January 19,2013 robbery was not relevant to any issue other than character. We disagree. The State offered the evidence to establish, among other things, Martin’s identity as a participant in the Reyes-Gaucin robbery. Other-crimes evidence may be admitted as proof of identity if it is sufficiently similar to the charged crime to “mark the offenses as the [defendant’s] handiwork.” Brannon, 298 Ga. at 607 (4) (citation omitted). In other words, “[t]he extrinsic act must be a signature crime, and the defendant must have used a modus operan di that is uniquely his.” Watford, 332 Ga. App. at 504 (2).

The two incidents at issue here occurred within approximately one month of each other, and both involved the armed robbery of a Hispanic woman walking alone in Gainesville, during which a purse was snatched from the victim. The perpetrators wore dark clothing and used a small handgun, as well as a white SUV, to carry out the crimes. In both instances, the stolen purses were later found discarded on a roadway According to Wilson, Hispanics were the target of the robberies because “they worked . . . [and] [t]hey had all the money.” Finally, Mayo-Romero positively identified Martin as one of her assailants in the January 19, 2013 robbery

Given these circumstances, the trial court was authorized to find that the modus operandi for each robbery “was sufficiently similar to mark the offenses as [Martin’s] handiwork.” Brannon, 298 Ga. at 607 (4). Furthermore, although various evidence, including Wilson’s testimony, connected Martin to the Reyes-Gaucin crime, additional proof of identity was certainly relevant. See OCGA § 24-14-8 (testimony of an accomplice must be corroborated to sustain a felony conviction). The trial court, therefore, properly admitted evidence of the January 19, 2013 robbery

2. Alternatively, Martin argues that Mayo-Romero’s trial testimony identifying him as the purse snatcher should have been excluded. Again, we disagree.

The record shows that Mayo-Romero was in Mexico at the time of trial and testified through a Skype video feed. During her testimony, the prosecutor showed Mayo-Romero a picture of Martin and asked whether she recognized “this man.” When Mayo-Romero responded, “yes,” the prosecutor inquired, “Who is this?” Mayo-Romero stated: “The one who snatched my bag.” According to the State, the prosecutor used a photograph to obtain the identification because “the testimony was taken via Skype and [Mayo-Romero] was unable to scan the courtroom” to identify Martin in person.

Martin contends that the in-court identification based on a single photograph was impermissibly suggestive, improper, and unreliable. Martin, however, never raised this argument below. Although he objected to the other-crimes evidence and questioned why Mayo-Romero had not previously made an identification, he did not challenge the identification process as impermissibly suggestive. Admission of the evidence, therefore, is only subject to review for “plain error affecting substantial rights.” Jones v. State, 299 Ga. 40, 42 (2) (785 SE2d 886) (2016) (citation and punctuation omitted). Under the plain error standard:

First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Id. (citation and punctuation omitted).

In this case, reversal is not authorized because no error occurred. Martin’s challenge to the identification testimony relies upon cases involving suggestive pretrial procedures that allegedly tainted a witness’s subsequent in-court identification. See, e.g., Walker v. State, 295 Ga. 688, 692-693 (3) (763 SE2d 704) (2014); Wright v. State, 302 Ga. App. 101, 104-105 (4) (690 SE2d 220) (2010); Bradley v. State, 152 Ga. App. 902 (264 SE2d 332) (1980). Such cases address the extra safeguards developed by courts to protect against potential pretrial misidentification. Our Supreme Court has explained:

Because pretrial identification procedures occur beyond the immediate supervision of the court, the likelihood of misidentification in such cases increases, and courts have required that pretrial identification procedures comport with certain minimum constitutional requirements in order to [ejnsure fairness.

Ralston v. State, 251 Ga. 682, 683 (2) (309 SE2d 135) (1983) (citation omitted).

These extra safeguards do not apply here. As Martin concedes, Mayo-Romero made no pretrial identification. Authorities had not previously shown her any photographs, and she did not identify Martin as the perpetrator before trial. Her testimony constituted an in-court identification that was “subject to the same rules of evidence, witness credibility, and cross-examination as all testimony in a criminal trial.” Ralston, 251 Ga. at 683-684 (2); see also Ivey v. State, 277 Ga. 875, 877 (4) (b) (596 SE2d 612) (2004) (“The ‘totality of the circumstances’ test for reliability ... applies to extra-judicial pretrial identification procedures such as lineups, showups and photographic displays, not to the in-court procedures used in this case.”) (citation and punctuation omitted). Accordingly, the trial court did not err in admitting the identification testimony. See Ralston, 251 Ga. at 684 (2); Ivey, 277 Ga. at 878 (5).

Decided March 15, 2017.

Debra K. Jefferson, for appellant.

Lee Darragh, District Attorney, Kelley M. Robertson, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, P. J., and Rickman, J., concur in judgment only.