text:
    A13A1115.
    DAVIDSON v. A. G. EDWARDS & SONS, INC. et al.
    (748 SE2d 300)
   ANDREWS, Presiding Judge.

Jon V. Davidson, Jr., appeals from the trial court’s order compelling him to arbitrate his defamation claim against his former employer, A. G. Edwards & Sons, Inc., and others (“A. G. Edwards”). He contends that his post-termination of employment claim does not fall within the scope of the arbitration clause at issue under the Georgia Arbitration Code, arguing that he did not separately initial it as required by OCGA § 9-9-2 (c) (9), and that his claim, as a personal injury claim, is exempt from arbitration under OCGA § 9-9-2 (c) (10). Davidson also claims that the trial court erred in enforcing the arbitration clause, arguing (i) that, by its own terms, the arbitration clause does not extend to future tort claims, and (ii) that such claims are not subject to arbitration under the Federal Arbitration Act (“FAA”) as not involving interstate commerce. Finally, Davidson challenges the trial court’s refusal to reopen discovery. Discerning no error, we affirm.

The record showsthatDavidsonbeganworkingforA. G. Edwards as a broker/dealer in 1994, serving customers in at least 16 states. He signed a written employment contract that contained the following arbitration clause:

You agree that any controversy or dispute arising between you and [A. G.] Edwards in respect to this agreement or your employment by [A. G.] Edwards shall be submitted for arbitration before the New York Stock Exchange, Inc., or the National Association of Securities Dealers, Inc.

Davidson voluntarily retired from the firm on April 5, 2007. Shortly after his departure, A. G. Edwards sent letters to Davidson’s former customers encouraging them to remain with A. G. Edwards rather than to follow Davidson in his new venture to avoid a potentially less favorable fee structure. The letter read, in part, “[a]lthoughyouhave developed a relationship with Jon V. Davidson, please ask yourself if it is in YOUR best interest to transfer your account.” (Emphasis in original.) Given the foregoing, Davidson filed the underlying complaint seeking damages for the intentional tort of defamation on July 13, 2007. A. G. Edwards timely answered and thereafter moved to compel arbitration and to stay proceedings, which motion the trial court granted. We granted Davidson’s application for interlocutory appeal, and the instant appeal followed.

We review de novo a trial court’s order granting or denying a motion to compel arbitration because “the construction of an arbitration agreement, like any other contract, presents a question of law.” (Citations omitted.) Cash In Advance of Florida, Inc. v. Jolley, 272 Ga. App. 282 (612 SE2d 101) (2005).

1. The trial court’s order requiring arbitration, was not error.

(a) Preemption. By his first and second enumerations of error, Davidson asserts that the trial court’s order granting A. G. Edwards’ motion was error because he had not separately initialed the arbitration clause at issue as required by OCGA § 9-9-2 (c) (9) and, in any event, his complaint, as averring a claim for personal injury, was exempt from arbitration under OCGA § 9-9-2 (c) (10). We disagree.

This Court has held that the FAA, 9 USC § 1 et seq., preempts state law and policy with respect to the signature requirement of OCGA § 9-9-2 (c) (9). Langfitt v. Jackson, 284 Ga. App. 628, 635 (3) (644 SE2d 460) (2007), citing Primerica Financial Svcs. v. Wise, 217 Ga.App. 36, 41 (6) (456 SE2d 631) (1995). Although this Court has not previously addressed whether the FAA preempts OCGA § 9-9-2 (c) (10), insofar as it exempts from arbitration “personal bodily injury” claims, we find no reason why there should not be preemption in this regard as well. The FAA preempts any state law that conflicts with its provisions or undermines the enforcement of private arbitration agreements. Results Oriented v. Crawford, 245 Ga. App. 432, 436 (1) (a) (538 SE2d 73) (2000); see also Volt Information Sciences v. Bd. of Trustees, 489 U. S. 468, 477 (109 SCt 1248, 103 LE2d 488) (1989) (“[T]o the extent that [state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” it will be preempted by the FAA.) (citation and punctuation omitted); see also Primerica, supra, 217 Ga. App. at 41 (6) (liberal federal principle of favoring enforceability of arbitration agreements not subject to “state substantive or procedural policies to the contrary”) (citation omitted).

(b) Enforceability.

(i) Post-employment (future) tort claim. Davidson claims that the arbitration clause at issue is unenforceable under the FAA because the terms of such clause do not extend to claims arising after the termination of employment; and the defamation claim he alleges, an intentional tort, does not involve interstate commerce under the FAA. The question of whether the post-termination claim which underlies this appeal is subject to arbitration is one of first impression. We are persuaded that the governing federal law on this question should control. In Brown v. Coleman Co., 220 F3d 1180, 1184 (III) (10th Cir. 2000), the court held that the controlling question should be whether the alleged tort of defamation “touch [ed] the underlying contract.” Id. Or, stated otherwise, did it involve significant aspects of the employment relationship. Morgan v. Smith Barney, Harris Upham & Co., 729 F2d 1163, 1167 (8th Cir. 1984).

In Brown, the arbitration clause read that “ ‘all disputes or controversies arising under or in connection with this Agreement will be settled exclusively by arbitration.’ ” (Punctuation omitted.) Brown, supra, 220 F3d at 1184 (III). The arbitration clause in Davidson’s employment contract is virtually identical to that in Brown as extending to “any controversy or dispute arising between [Davidson] and [A. G.] Edwards in respect to this agreement or your employment by [A. G.] Edwards. . . .” Moreover, Brown is but a part of a growing trend in the United States Circuit Courts of Appeals. See, e.g., Morgan, supra, 729 F2d at 1167 (claims filed almost two years after termination of employment alleging that Smith-Barney communicated complaints of former customers to NSYE enforcement agencies and deliberately misinformed customers that Morgan’s brokerage license had been suspended and ordered to arbitration); Aspero v. Shearson American Express, 768 F2d 106, 109 (6th Cir. 1985) (post-employment claim for defamation, invasion of privacy, and intentional infliction of emotional distress filed a year after termination ordered to arbitration where Shearson vice president allegedly told several potential employees that plaintiff was terminated for unauthorized trading violations).

Decided September 19, 2013

Reconsideration denied October 9, 2013

James D. Patrick, Jr., for appellant.

Page, Scrantom, Sprouse, Tucker & Ford, Marcus B. Calhoun, Jr., Travis C. Hargrove, for appellees.

We make no judgment as to whether A. G. Edwards’ letters of which Davidson complains can be read as implying that he breached obligations he owed to A. G. Edwards or its customers in violation of the terms of his employment agreement. However, in averring by his complaint that such letters “imputed the crime [s] of theft, fraud, deceit, conversion of monies, and other illegal conduct to [him],” it is clear that the defamation claim which Davidson alleges is based upon statements related to his handling of his clients’ accounts while employed by A. G. Edwards. Accordingly, because the alleged defamation touched Davidson’s employment contract, the trial court did not err in granting A. G. Edwards’ motion to compel arbitration after his employment terminated. Brown, supra, 220 F3d at 1184 (III); Morgan, supra, 729 F2d at 1167.

(ii) Interstate Commerce. We note that the record shows that Davidson’s employment at A. G. Edwards was inclusive of a clientele beyond the State of Georgia. However, given our disposition of Division 1 (b) (i), supra, we need not address Davidson’s claim that the trial court erred in enforcing the arbitration clause on such basis or otherwise because his defamation claim did not involve interstate commerce foreclosing arbitration under the FAA.

2. The trial court having correctly granted A. G. Edwards’ motion to compel arbitration and stay discovery, as above, its order denying Davidson’s motion to reopen discovery was proper. See Wise v. Tidal Constr. Co., 261 Ga. App. 670, 674-675 (2) (583 SE2d 466) (2003) (defendant’s conduct of discovery in furtherance of litigation waives right of arbitration).

Judgment affirmed.

Dillard and McMillian, JJ., concur.

       Janice Hutson, Wells Fargo Advisors Financial Network, LLC, formerly known as Wachovia Securities Financial Network, LLC (DE), doing business as Wachovia Securities, LLC, as successors-in-interest and in liability to A. G. Edwards & Sons, Inc., Wells Fargo Advisors, LLC.

       Pertinently, these letters stated:
      As with any firm in the industry, there would bean account transfer fee if you decide to move your account. Also, make sure you know what kind of annual account fees you would have to pay at another firm. At A. G. Edwards, we do not have fees on our basic brokerage accounts. Know that at other firms you may be subject to minimum account fees depending on the size of your account or even be pushed out to a call center if this new firm decides your account is not large enough for you to continue your relationship with Jon V. Davidson. Is it worth transferring your account?

       We note that OCGA § 9-9-2 (c) (10) exempts from arbitration claims for “personal bodily injury rather than claims for “personal injury.” The former as necessarily narrower than the latter, it appears that even were there no preemption, Davidson’s defamation claim would not be excluded from arbitration under Georgia law.

      . The FAA applies to any “contract evidencing a transaction involving commerce.” 9 USC §2.


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A13A0927.
    HOWLAND et al. v. WADSWORTH.
    (749 SE2d 762)
   Ray, Judge.

Ellen Rebecca Wadsworth sued Gregory Howland, PA-C, Paul Paustian, M.D., and their employer, Georgia EM-I Medical Services, PC. (the “defendants”), asserting claims for ordinary negligence and gross negligence, alleging that the defendants failed to provide her with necessary medical treatment while she was in the emergency department of the Houston Medical Center. At trial, the defendants movedfor a directed verdict, claiming that OCGA § 51-1-29.5 applied to Wadsworth’s claims because her cause of action arose out of the provision of “emergency medical care” in a hospital emergency room and that Wadsworth failed to prove gross negligence by clear and convincing evidence as required by OCGA § 51-1-29.5 (c). Wadsworth argued that the statute did not apply because the treatment she received was not “emergency medical care” as defined by OCGA § 51-1-29.5 (a) (5) and that, therefore, the jury should be allowed to consider ordinary negligence under the preponderance of evidence standard. The trial court denied the motion for directed verdict, finding that the evidence was sufficient to create a jury issue on gross negligence. The court further found that the evidence created a jury issue as to whether the medical care provided to Wadsworth constituted emergency medical care, which would determine which standard of care and burden of proof would apply. Consequently, the trial court charged the jury on both ordinary negligence and gross negligence, along with the respective burdens of proof. The court further charged the jury on the statutory definition of “emergency medical care” and instructed the jury that their determination as to whether Wadsworth’s claims involved the provision of emergency medical care would determine which standard of care and burden of proof to apply. Ultimately, the jury applied the ordinary negligence standard of care and returned a verdict in favor of Wadsworth in the amount of $5,000,000.

The defendants appeal, arguing that the trial court erred: (1) by allowing the jury to determine, as a question of fact, whether Wads-worth’s claims arose out of the provision of “emergency medical care” as defined by OCGA § 51-1-29.5 (a) (5); (2) in failing to decide, as a matter of law, that the medical care provided to Wadsworth constituted emergency medical care; (3) in denying their motion for directed verdict based on Wadsworth’s failure to show gross negligence by clear and convincing evidence; and (4) in providing confusing instructions to the jury concerning the applicable standard of care and burden of proof. For the reasons that follow, we affirm.

At the outset, we note that “[t]his Court reviews the judgment entered by the trial court after approval of a jury verdict upon the any evidence test, absent any material error of law.” (Citation and punctuation omitted.) Timmons v. Cook, 287 Ga. App. 712, 712 (652 SE2d 604) (2007). Additionally, when a question of law is at issue, “we owe no deference to the trial court’s ruling and apply a de novo standard of review.” (Citation omitted.) Artson, LLC v. Hudson, 322 Ga. App. 859 (747 SE2d 68) (2013).

So viewed, the evidence shows that sometime in late November 2008, Wadsworth began experiencing pain in her feet which appeared to be getting worse each day. On the morning of November 27, 2008, Wadsworth noticed that her feet were cold and that she was unable to warm them. As the pain in her feet had increased to the extent that she could no longer walk, she decided to call 911.

An ambulance arrived and transported Wadsworth to the Houston Medical Center’s emergency room. Prior to arriving at the emergency room, a paramedic had assessed Wadsworth’s condition and noted that she had normal vital signs and normal blood circulation in her legs. The paramedic obtained a brief medical history from Wads-worth and noted that she had a history of diabetes and hypertension. Based on his assessment of Wadsworth’s condition, the paramedic determined that she did not require any treatment during her transport to the emergency room.

Upon her arrival at the Houston Medical Center’s emergency room, Wadsworth was classified as a “level 4” patient, meaning that her condition was “non-urgent.” Wadsworth was assigned a bed in “C-pod,” which is an area designated for the examination and treatment of patients who are expected to be “in and out in 90 minutes or less.” The nurse who did the initial triage noted that Wadsworth was complaining of significant pain in both feet that had increased over the past couple of days and that it was hard for her to walk. The nurse performed a physical assessment of Wadsworth and noted that her feet were cold to the touch, but that she had “positive” or “palpable” pulses in her feet at the time.

Wadsworth was eventually examined by defendant Gregory Howland, a physician assistant who worked in the emergency room of the Houston Medical Center. Howland noted that Wadsworth was in a “moderate” amount of pain and ordered her morphine, which succeeded in alleviating some of her pain. Howland considered Wads-worth to be relatively stable during his examination, and he believed that her status had improved while she was in the emergency room. Based on his review of Wadsworth’s symptoms and past medical history of diabetes and hypertension, Howland engaged in a differential diagnosis, which included considering the possibilities of acute arterial occlusion (blocked arteries), deep vein thrombosis (DVT), and cellulitis (infection). Howland ordered Wadsworth to undergo a venous ultrasound, examination, which ruled out the possibility of DVT. Howland noted that Wadsworth’s feet were cool, rather than cold, and he attributed the coolness of her feet to her diabetes. Although Howland noted a diminished pulse in Wadsworth’s feet, he considered the pulse to be sufficient to rule out an acute arterial occlusion. However, Howland did not order an arterial ultrasound or any other diagnostic tests to determine whether Wadsworth’s diminished pulse was caused by a partial arterial blockage. Based on the results of a blood test which indicated that Wadsworth had an elevated white blood cell count, together with the fact that Wadsworth was exhibiting signs of redness and tenderness in her lower legs and feet, Howland diagnosed Wadsworth as having cellulitis. Cellulitis can be treated with antibiotics on a nonemergency basis.

Howland discussed his diagnosis and his proposed plan of care with his supervising physician, Dr. Paul Paustian. Dr. Paustian did not speak with or personally examine Wadsworth, but he agreed with Howland’s diagnosis and plan of care. Although Wadsworth wanted to be admitted to the hospital for observation, the defendants gave Wadsworth a prescription for antibiotics and pain medication and discharged her. From the time of her arrival to the time of her discharge on November 27, 2008, Wadsworth spent approximately three hours in the emergency room.

In the early morning of November 28, 2008, approximately twelve hours after her discharge, an ambulance responded to an emergency call at Wadsworth’s residence. Upon their arrival, paramedics found Wadsworth to be unresponsive, with no blood pressure or pulse. After a paramedic performed CPR, Wadsworth’s vital signs improved, and she was again transported by ambulance to Houston Medical Center’s emergency room. Upon her arrival, Wadsworth had low blood pressure, a diminished pulse, and slow respiration, which are indicators of a near cardiac arrest. Later that afternoon, doctors performed an arteriogram on Wadsworth and determined that the arteries behind both of her knees were completely blocked. Doctors later determined that Wadsworth’s lower legs had suffered damage to the extent that they were no longer salvageable, and Wadsworth had both legs amputated below the knees.

1. In their first enumeration of error, the defendants contend that the trial court erred in allowing the jury to “interpret” OCGA § 51-1-29.5 when it allowed the jury to determine whether the medical care provided to Wadsworth on November 27, 2008, arose out of the provision of “emergency medical care” as defined by OCGA § 51-1-29.5 (a) (5). Specifically, the defendants argue that the issue of whether a claim involves emergency medical care is a question of law for the court because it requires interpretation of the statute. We disagree.

OCGA § 51-1-29.5 (c) provides, in pertinent part:

In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department... no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.

OCGA § 51-1-29.5 (a) (5) defines “emergency medical care” as:

bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.

This Court has previously held that the issue of whether a claim involves the provision of emergency medical care may be a question of fact for the jury. See Bonds v. Nesbitt, 322 Ga. App. 852 (1) (747 SE2d 40) (2013) (the question of whether the plaintiff was stabilized and capable of receiving medical treatment as a nonemergency patient within the meaning of OCGA § 51-1-29.5 (a) (5) was a question of fact for the jury).

Furthermore, in cases involving a health liability claim arising out of the provision of emergency medical care in an emergency room, the jury is required to consider, inter alia, “[t]he circumstances constituting the emergency” and “[t]he circumstances surrounding the delivery of the emergency medical care.” OCGA § 51-1-29.5 (d) (3) and (4). Thus, the statute contemplates that, in some cases, there may be a jury issue as to whether the patient at some point had become stabilized and, therefore, was capable of receiving medical treatment as a nonemergency patient. “In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly . . . .” OCGA § 1-3-1 (a). “The legislative intent is determined from a consideration of the entire statute.” Restina v. Crawford, 205 Ga. App. 887, 888 (424 SE2d 79) (1992).

In this case, the jury had to determine whether Wadsworth’s claims arose out of the provision of emergency medical care. The defendants argue that the jury had no guidance, either from expert witnesses or from the trial court, on how to make this determination. However, the trial court charged the jury on the statute’s definition of “emergency medical care,” and none of the words or terms within that definition are beyond the ken of the average juror.

As the issue of whether a claim involves emergency health care is not solely a matter of law for the trial court, this enumeration lacks merit.

2. The defendants contend that, under the particular facts of this case, the trial court erred in failing to decide as a matter of law that the treatment provided to Wadsworth in the emergency room on November 27, 2008, constituted emergency medical care.

Citing Pottinger v. Smith, 293 Ga. App. 626 (667 SE2d 659) (2008) and Johnson v. Omondi, 318 Ga. App. 787 (736 SE2d 129) (2012), the defendants argue that the gross negligence standard of OCGA § 51-1-29.5 applies to misdiagnoses and improper discharges arising out of the provision of emergency medical care in a hospital emergency room. The defendants’ reliance on these cases is misplaced. In Pottinger and Johnson, neither plaintiff argued on appeal that OCGA § 51-1-29.5 did not apply to their claims, nor did they argue that care provided was not “emergency medical care” as defined by OCGA § 51-1-29.5 (a) (5). See Pottinger, supra at 628; Johnson, supra at 790, n. 5. Rather, the only issue in both cases was whether gross negligence was shown by clear and convincing evidence. Here, Wadsworth argues that she was stabilized and capable of receiving appropriate, nonemergency medical treatment, thereby triggering an exception to the statute which would allow the jury to consider ordinary negligence.

In this case, an issue of fact existed as to whether Wadsworth’s claims arose out of the provision of emergency medical care. Wads-worth was admitted into the emergency room as “non-urgent” patient; yet, she was experiencing a medical condition which included symptoms of significant pain in her feet, coldness in her feet, and the inability to walk. Although Howland’s differential diagnosis included the possibility of an arterial occlusion or DVT, there is evidence to show that Wadsworth did not have either of these conditions at that time.

OCGA § 51-1-29.5 (a) (5) excludes from its definition of emergency medical care the “medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient . . . .” Thus, the defendants’ conduct becomes subject to the ordinary negligence standard of care, rather than the gross negligence standard, if Wadsworth’s condition had improved or at least stabilized, such that she was capable of receiving nonemergency care.

We note that an emergency room physician or health care provider may still claim the protection of the gross negligence standard of OCGA § 51-1-29.5 when he or she mistakenly concludes that a patient has become “stabilized” and “capable of receiving medical treatment as a nonemergency patient.” Bonds, supra. In this case, however, that claim must be made to and the decision rendered by the jury.

Howland’s determination that Wadsworth was relatively stable at all times and that her condition had improved while she was in the emergency room is some evidence that Wadsworth was in fact stabilized. Notably, the defendants’ own experts testified that Wadsworth did not have an acute arterial occlusion when she presented to the emergency room on November 27, 2008, and there is no evidence that Wadsworth actually had DVT at that time. Furthermore, both How-land and Dr. Paustian determined that Wadsworth could be discharged, an indication that Wadsworth did not require emergency medical care.

Viewing this evidence and all reasonable inferences in the light most favorable to the verdict, we conclude that whether Wadsworth at some point had stabilized and was capable of receiving medical treatment as a nonemergency patient within the meaning of OCGA § 51-1-29.5 (a) (5) was a question for the trier of fact. See Bonds, supra. Therefore, the trial court did not err in failing to decide, as a matter of law, that the care provided to Wadsworth was emergency medical care.

3. In their third enumeration of error, the defendants contend that the trial court erred in denying their motion for a directed verdict because Wadsworth failed to show gross negligence by clear and convincing evidence. Based on our holding in Divisions 1 and 2 above, together with the fact that the jury applied the ordinary negligence standard of care in entering its verdict in favor of Wadsworth, we need not address this enumeration.

4. In their final enumeration of error, the defendants contend that the trial court erred by issuing confusing jury instructions concerning the applicable standard of care and burden of proof. Specifically, the defendants argue that charging the jury on both standards of care inevitably confused the jury, and that the trial court unduly emphasized the ordinary negligence standard and the preponderance of evidence burden of proof.

On appeal, we review allegedly erroneous jury instructions under the plain legal error standard. Carter v. Smith, 294 Ga. App. 590, 592-593 (2) (669 SE2d 425) (2008). “[I]t is well established that jury instructions must be read and considered as a whole in determining whether the charge contained error.” (Citation and punctuation omitted.) West v. Breast Care Specialists, LLC, 290 Ga. App. 521, 522 (1) (659 SE2d 895) (2008).

When viewed in its entirety, the trial court’s charge in this case gave a full and correct statement of the law regarding the ordinary negligence and gross negligence standards of care, as well as the burden of proof applicable to each. Additionally, the trial court charged the jury on the statutory definition of “emergency medical care” and instructed the jury that their determination as to whether Wadsworth’s claims arose out of the provision of emergency medical care would determine which standard of care to apply.

We find no merit in the defendant’s argument that the trial court emphasized the ordinary negligence standard when it used the terms “negligent” and “negligence” during jury instructions. Furthermore, the trial court resolved any potential ambiguity in this regard by giving the following instruction:

Where I[ have] used the words “negligent” or “negligence” in this charge, you may substitute the words “grossly negligent” or “gross negligence” based upon the standard you find applies in this case.

We likewise find no merit in the defendants’ argument that the trial court unduly emphasized the ordinary negligence standard through heavy repetition of the language of ordinary negligence and the related preponderance of the evidence burden of proof. The defendants cite Jackson v. Rodriquez, 173 Ga. App. 211 (325 SE2d 857) (1984), for the principle that “it is error to repeat again and again a portion of a charge which is more favorable to one party than the other.” (Citation omitted.) Id. at 213 (2). Here, the trial court’s references to ordinary negligence and preponderance of the evidence were appropriate in the context of the charge as a whole, and “mere repetition of a principle of law... will not [authorize] a reversal unless it appears from the charge as a whole that there was such undue emphasis as to result in an unfair statement of the law[.]” (Citation and punctuation omitted.) Id. Here, all of the charges were applicable and correct statements of law, and we find no undue emphasis. Accord American Multi-Cinema, Inc. v. Walker, 270 Ga. App. 314, 318 (3) (b) (605 SE2d 850) (2004).

Decided October 9, 2013

Hunton & Williams, Lawrence J. Bracken II, James D. Humphries IV, for appellants.

Furthermore, “in order for a trial court’s jury instruction to constitute reversible error, the party challenging the instruction must establish that the instruction was both legally erroneous and harmful.” (Citations and punctuation omitted.) West, supra at 523 (1). Any perceived confusion in the jury instructions with regard to the applicable standard of care and burden of proof was effectively resolved in the verdict form that was given to the jury, which provided as follows:

If you find that the medical care provided by the [d] efendants was “emergency medical services” you should apply the standard of gross negligence proven by clear and convincing evidence.
If you find that the medical care provided by the [d] efendants was not “emergency medical services” you should apply the standard of ordinary negligence proven by a preponderance of the evidence.
1. We, the jury, apply the standard of care of:
[ ] gross negligence.
[ ] ordinary negligence.

For the above reasons, we find no reversible error.

Judgment affirmed.

Barnes, R J., and Miller, J., concur.

Adams & Adams, Charles R. Adams III, Adams & Jordan, Virgil L. Adams, Caroline W. Herrington, Gautreaux & Adams, Jarome E. Gautreaux, Tracey L. Dellacona, for appellee.

Allen, McCain & OMahoney, Hunter S. Allen, Jr., Simuel F. Dosier, Jr., Steven Salcedo, amici curiae.

       Although other defendants were named in the suit, the other defendants were dismissed pursuant to a consent order prior to trial.

       An acute arterial occlusion (or complete arterial blockage) would constitute an emergency, because it can cause a heart attack, stroke, or loss of limb. A diminished pulse can be a sign of arterial insufficiency (or partial arterial blockage), which can be treated on a non-emergency basis. At trial, three of the defendants’ own expert witnesses testified that, in their opinion, Wadsworth did not have an acute arterial occlusion at the time she was in the emergency room on November 27, 2008.

       In the absence of immediate medical attention, these conditions could reasonably be expected to result in placing a patient’s health in serious jeopardy.

       The defendants certainly did not view Wadsworth as being in an emergency state, and their treatment of her was consistent with their assessment of the situation.

       Given Wadsworth’s symptoms and medical history, admitting her into the hospital for observation on a nonemergency basis would have been a viable and prudent alternative to discharging her, but the defendants declined to do so.


author: BARNES, Presiding Judge.

text:
    A13A1275.
    CSS REAL ESTATE DEVELOPMENT I, LLC et al. v. STATE BANK AND TRUST COMPANY.
    (749 SE2d 773)
   BARNES, Presiding Judge.

CSS Real Estate Development I, LLC, Enville, Inc., Thakorbhai D. Patel, Simon Ahn, Charles N. Crowder and Samuel J. Park (hereinafter “CSS”) appeal from the order of the trial court granting summary judgment to State Bank and Trust Company (“SB&T”). On appeal, CSS contends that the trial court erred in finding that it had not produced evidence showing that SB&T acted fraudulently to induce it to execute new guaranties two days before the bank failed. CSS does not appear to dispute the basic facts regarding the loan and the related agreements associated with the guaranty of the loan. Upon our review, and finding that the trial court did not err in its grant of summary judgment to SB&T, we affirm.

A grant of summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On summary judgment, after the movant makes a prima facie showing of its entitlement to judgment as a matter of law, the burden then shifts to the respondent to come forward with rebuttal evidence. To do so, the respondent must set forth specific facts showing the existence of a genuine issue of disputed fact. On appeal from the grant or denial of a motion for summary judgment, we apply a de novo standard of review, viewing the evidence and all reasonable inferences and conclusions drawn from it in the light most favorable to [CSS] as the nonmoving [party].

(Punctuation and footnotes omitted.) Capital City Dev. v. Bank of North Ga., 316 Ga. App. 624, 624-625 (730 SE2d 99) (2012).

So viewed, the evidence demonstrates that in February 2007, CSS Real Estate entered into two loan agreements with The Buck-head Community Bank d/b/a The Alpharetta Community Bank (“the Bank”) for the purchase of land and construction of a hotel. Crowder, Ahn, and Park guaranteed the loan. In October 2008, CSS Real Estate sold the property to Enville, Inc., and Enville’s owner, Patel, executed a commercial guaranty for CSS’s indebtedness under the original loan with the Bank. CSS Real Estate, Crowder, Ahn, and Park remained guarantors under the loan as well.

On December 2, 2009, the loan was renewed in the principal amount of $3,300,018 and Crowder, Ahn, Park, Enville, Inc., and Patel executed new loan guaranties. On December 4, 2009, the Bank failed, and the FDIC was appointed as receiver of the Bank’s assets and liabilities, and thereafter the FDIC sold and assigned all rights and interests in the loan to SB&T. On July 15, 2011, SB&T sent CSS a default notice after timely payments were not made on the loan. Subsequently, on September 22,2011, SB&T filed the underlying suit to collect the monies due under the loan.

SB&T moved for summary judgment, and CSS responded, asserting that the motion should be denied because of the existence of material factual issues as to whether SB&T’s predecessor in interest, i.e., the Bank, had committed fraud and breached its fiduciary duty by concealing the fact that, at the time CSS renewed its loans and guaranties, the Bank was “on the verge of collapse.” The trial court granted SB&T’s motion upon finding that, despite CSS’s allegations of fraudulent misrepresentation and breaches of fiduciary duty, CSS had failed “to set forth any evidence of any of the elements of a fraud or breach of fiduciary claim or even illustrate how total disclosure of the [Bank’s] precarious financial situation would have caused [CSS] to act differently.”

On appeal, CSS argues that it produced evidence showing that SB&T’s predecessor in interest, the Bank, fraudulently induced it to renew the loan and guaranties two days before the Bank failed even though Bank employees knew about the impending failure. CSS maintains that had it known that the Bank was going to fail, instead of renewing the loan, it would have waited and instead “had the option to negotiate with the FDIC or [the] successor lender, SB&T.” CSS further contends that the trial court should have canceled the guaranties at issue because of the Bank’s “bad acts.”

Once a plaintiff establishes a prima facie case by producing a guarantee and showing that it was executed, “the plaintiff is entitled to judgment as a matter of law unless the defendant can establish a defense.” (Punctuation and footnote omitted.) Trendmark Homes v. Bank of North Ga., 314 Ga. App. 886, 887 (726 SE2d 138) (2012). Fraud is such a defense.

The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort. Because summary judgment is appropriate if only one essential element of [CSS’s] claim is eliminated, we need not address all the issues raised on appeal or in the motion for summary judgment to resolve this appeal.

Decided October 9, 2013.

Gregory, Doyle, Calhoun & Rogers, Stuart L. Sims, for appellants.

(Citation omitted.) Johnson v. Rodier, 242 Ga. App. 496, 498 (2) (529 SE2d 442) (2000).

“[T]o recover in tort for fraud, [CSS] must prove that [it] sustained loss or damage as the proximate result of the alleged misrepresentations,” and in so doing, “show not only that had [CSS] known the truth [it] would not have acted but also that [it] suffered actual economic loss.” (Citations and punctuation omitted.) Holmes v. Grubman, 286 Ga. 636, 641-642 (2) (691 SE2d 196) (2010).

Even if, as CSS contends, the Bank knew it was failing at the time the loan and guaranties were renewed, it has failed to demonstrate by the record on appeal any evidence that it would have acted differently had it known of the Bank’s closure, or evidence of damages that it sustained as a result of the closure. See Fuller v. Perry, 223 Ga. App. 129, 131 (1) (476 SE2d 793) (1996) (summary judgment affirmed because appellant’s attempts to show prior knowledge or fraudulent intent unsupported by the record).

Although CSS asserts that it might have been in a position to negotiate with the FDIC or SB&T over the terms of the loan and guaranties if it had known of the Bank’s impending failure, “[b]are conclusions and contentions unsupported by an evidentiary basis in fact are insufficient to oppose a motion for summary judgment.” (Citation and punctuation omitted.) Griffin v. State Bank of Cochran, 312 Ga. App. 87, 91 (1) (a) (718 SE2d 35) (2011). CSS’s statements regarding what might have occurred in relation to any future negotiations with the FDIC or SB&T “related entirely to future events involving a third party and consisted entirely of opinions, predictions, and conjectures, [and] they cannot form the basis of a claim for fraud— Accordingly, the trial court did not err in granting summary judgment in favor of [SB&T].” Fuller v. Perry, 223 Ga. App. at 132 (1).

Judgment affirmed.

Miller and Ray, JJ., concur.

Graham & Penman, Jason W. Graham, Joseph P. Quirk, Kevin E. Quirk, Lee C. Zoss, Stephen L. Minsk, for appellee.


text:
    A13A1305.
    WARE v. AMERICAN RECOVERY SOLUTION SERVICES, INC.
    (749 SE2d 775)
   BARNES, Presiding Judge.

American Recovery Solution Services, Inc. (ARSS) sued Christopher Ware for computer theft and computer trespass under the Georgia Computer Systems Protection Act, OCGA § 16-9-90 et seq. (the “Act”). Following a bench trial, the court found that Ware committed computer trespass under OCGA § 16-9-93 (b) and awarded ARSS damages totaling $70,225. Ware argues on appeal that the trial court erred in imposing liability under the Act, in assessing damages, and in awarding attorney fees without identifying the statute on which the award was based or making findings of fact. We agree that Ware committed computer trespass but reverse the damages award for “past services,” and reverse and remand the attorney fees award for further proceedings.

In the appellate review of a bench trial, this Court will not set aside the trial court’s factual findings unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses. The standard by which findings of fact are reviewed is the “any evidence” rule, under which a finding by the trial court supported by any evidence must be upheld.

(Citation and punctuation omitted.) Singh v. Hammond, 292 Ga. 579, 581 (2) (740 SE2d 126) (2013).

So viewed, the record reveals that ARSS is a collection agency which entered into a written contract with Ware on August 30, 2009. Ware agreed to work as an independent contractor to “design, develop, and implement applications software” according to specifications attached to the contract as “Exhibit A.” The contract provided that the software, “including all versions in either source code or object code form,” was to be delivered to ARSS no later than February 1, 2010.

In exchange for completing the software development, ARSS agreed to pay Ware $1,500 as a “down payment” and $500 per month “until completion,” as well as necessary expenses. The contract provided that ARSS could request changes to the specifications “or other aspects of the Agreement,” and that Ware would use his best efforts to implement the requested changes at no additional expense or delay. If he could not do so, ARSS could elect either to withdraw the change request or require Ware to deliver the software with the change, “subject to the delay and/or additional expense.” The contract further stated that the software would be the property of ARSS, that the software development was “ ‘work for hire’ within the meaning of the Copyright Act of 1976,” and that Ware “assigned] to [ARSS], without further compensation, all of [his] right, title and interest in and to the Software” and any related intellectual property.

Ware developed software for ARSS that allowed employees to access the company’s database using a web-based application. When the parties entered into the August 2009 contract, Ware had already completed about 85 percent of the web-based application. He completed and installed it on ARSS’s system at some point before February 2010, as provided in the contract. After the application was installed and working, ARSS and Ware discussed building a faster program, and at some point after February 2010 ARSS accepted Ware’s proposal to build a second application based on Windows.

ARSS was still paying Ware for the completed web-based application when he began developing the Windows-based application, and for a time ARSS was paying Ware for both the completed first application and the developing second application. Ware and ARSS’s chief financial officer (CFO), who was also a part-owner and the operations manager, worked out a schedule for completing the new application and making payments. ARSS agreed to pay Ware an initial $700 on September 1, 2011, of a total fee of $1,905 due September 30, 2011, but when Ware arrived to pick up the deposit, the check was for $350 instead of $700. Ware agreed to wait two weeks for the second half of the down payment, and on Tuesday, September 13, the CFO told him he would leave the second $350 check at the front desk for Ware to pick up two days later. On Thursday, September 15, 2011, Ware came to ARSS’s offices and corrected some bugs in the program, but when he asked for his check, he was told the chief operating officer (COO) had taken it. The COO explained that she took the check so that she could “ask [Ware] where were we on the remaining portion of what he had.” The COO sent Ware an e-mail the next afternoon, Friday, September 16, 2011, asking him about the status of the corrections, which Ware had already fixed.

Ware responded with what he later described as a “rash reaction,” admitting he “mishandled” the situation. First, he logged into ARSS’s server remotely, using the CFO’s login and password, and “disabled the login.” On Friday, September 16, 2011, ARSS could not access its database of 36,000 accounts, and had to adapt temporarily to a manual method of operation. That evening, Ware e-mailed the company owners, demanding the immediate receipt of the rest of his agreed-upon fee for the latest upgrades before he would allow them access to the application and database.

ARSS called in a software expert who restored access to the server and files. Then on September 23, 2011, Ware again logged into the ARSS server with the CFO’s credentials and, according to him, “restored the application and gave them the previous package that they had paid for.” When ARSS employees tried to log into the database, they only had access to a previous version of the program which did not include data from 8,000 to 10,000 records that hadbeen input into the newer version.

On Friday, September 30, 2011, ARSS filed a complaint against Ware, contending that Ware remotely accessed ARSS’s server, disabled the software he developed under the contract, and deleted files. ARSS asserted that Ware committed computer theft in violation of OCGA § 16-9-93 (a) and computer trespass in violation of OCGA § 16-9-93 (b) and was liable for damages and the costs of suit under OCGA § 16-9-93 (g). ARSS also claimed to be losing $20,000 a day while its software was down and sought an injunction against Ware requiring him to make all ARSS servers and software operable and provide it with software itself and training manuals as outlined in the August 2009 contract. Finally, ARSS sought attorney fees under OCGA § 9-15-14.

In response to ARSS’s motion, the trial court held an emergency hearing the following Monday, October 3, 2011. ARSS’s attorney communicated with Ware by e-mail, but a process server was unable to serve Ware personally with the lawsuit, and he was not present at the hearing. The trial court issued a order restraining Ware from accessing ARSS’s servers for 30 days and ordering him to remedy “any problems caused by his past access” and to give ARSS the source code and documentation for all versions of the software. The court also set an October 31, 2011 hearing date and directed the clerk to serve the order and complaint on Ware.

On October 7, 2011, an attorney entered a notice of appearance for Ware and moved the trial court to set aside the temporary restraining order (TRO) for lack of service and to grant him either an indefinite stay of compliance or a temporary stay until his motion to set aside was heard and decided. ARSS responded three days later that “it [was] reasonable to believe that [Ware] did have notice,” and noted that personal service was not necessary for the TRO as long as the order was personally served on Ware along with notice of a subsequent hearing. ARSS’s counsel submitted an affidavit averring that he had spoken with Ware’s employer and that the employer made Ware aware of the hearing, and attached copies of numerous e-mail messages.

The next pleading in the record is ARSS’s motion for contempt and attorney fees filed October 11, 2011, alleging that Ware was subject to the court’s jurisdiction by being the subject of a TRO and could be served through his attorney. ARSS further contended that Ware had failed to comply with the TRO and should be held in contempt and ordered to pay attorney fees.

It appears from pleadings in the record that the trial court held another hearing, but the record contains no transcript and no resulting order. On October 27, 2011, ARSS filed a second motion for contempt and attorney fees, asserting that the trial court had heard its motion to compel on October 13, 2011, and had ordered Ware to comply by close of business October 14, 2011. The record contains no responsive pleading or order related to that motion.

More than a year later, the trial court placed the case on a civil trial calendar and ordered the parties to appear for a calendar call. On November 14, 2012, the trial court granted Ware’s request to allow his attorney to withdraw, and on November 28, 2012 the court conducted a bench trial at which Ware represented himself. On December 14,2012, the trial court issued an order and final judgment finding that Ware committed computer trespass as defined by OCGA § 16-9-93 (b) and awarding ARSS $22,000 in lost profits, $15,000 reimbursement of all fees it had paid Ware for his services, $15,000 for repairs, $17,875 attorney fees, and $350 punitive damages.

1. Ware contends on appeal that the trial court erred in imposing liability under the Act because he was an “authorized user” and retained ownership rights in the software. The trial court found that Ware committed the offense of computer trespass. OCGA § 16-9-93 (b) defines computer trespass and provides:

Any person who uses a computer or computer network with knowledge that such use is without authority and with the intention of:
(1) Deleting or in any way removing, either temporarily or permanently, any computer program or data from a computer or computer network;
(2) Obstructing, interrupting, or in any way interfering with the use of a computer program or data; or
(3) Altering, damaging, or in any way causing the malfunction of a computer, computer network, or computer program, regardless of how long the alteration, damage, or malfunction persists
shall be guilty of the crime of computer trespass.

OCGA § 16-9-92 (18) defines “without authority” as including “the use of a computer or computer network in a manner that exceeds any right or permission granted by the owner of the computer or computer network.” OCGA § 16-9-93 (g) clarifies that someone who is injured due to the violation of any part of the Act has a civil cause of action and can sue for damages, including lost profits.

Ware argues that he did not access the server “without authority” because he owned the software that he tampered with and because he “restored the application and gave them the previous package that they had paid for.” But whether Ware “owned” the upgraded version or not is irrelevant to whether he committed computer trespass. The statute only requires that the intruder use a computer or a network knowing he was without authority and either temporarily or permanently remove data, interfere with the use of a computer program, or cause a computer program to malfunction. OCGA § 16-9-93 (b) (1)-(3). The CFO, whose login and password Ware used to access the server, testified that he had not authorized Ware to disable an administrative login or alter the program, and ARSS presented substantial evidence that Ware’s actions first completely shut down the company and then hampered its ability to operate for a significant length of time while hired experts attempted to diagnose and restore the application. Ultimately, the company stopped using Ware’s software and purchased the use of off-the-shelf software to conduct its operations because, the CEO testified, it could not risk being shut down again.

Given these facts, the trial court was authorized to conclude that Ware committed computer trespass by accessing ARSS’s server without authority and interfering with the use of a computer program.

2. Ware also contends that the trial court erred in its damages award. The Act provides:

Any person whose property or person is injured by reason of a violation of any provision of this article may sue therefor and recover for any damages sustained and the costs of suit. Without limiting the generality of the term, “damages” shall include loss of profits and victim expenditure!, as well as] any additional civil remedy otherwise allowed by law.

OCGA § 16-9-93 (g) (1), (3). The statute further defines “victim expenditure” as “any expenditure reasonably and necessarily incurred by the owner to verify that a computer, computer network, computer program, or data was or was not altered, deleted, damaged, or destroyed by unauthorized use.” OCGA § 16-9-92 (17).

Ware asserts that the trial court erred in awarding ARSS $15,000 “for [Ware’s] services.” Ware argues that this sum was not a permissible “victim expenditure” as definedin OCGA § 16-9-92 (17), because ARSS received the value of Ware’s services during those two years, during which Ware developed, installed, and modified the software and provided on-call technical assistance to company employees, as well as the use of the software to operate a large portion of its business. Additionally, Ware argues, he gave ARSS the source code to the second application in response to the trial court’s order, which ARSS now owns exclusively, even though the parties’ contract only covered the first application. According to Ware, requiring him to pay back all of the money ARSS paid him during this time period would mean it obtained both his services and the software he developed for free.

In response, ARSS argues that the trial court properly awarded it $15,000 “for [Ware’s] services” because Ware’s actions deprived it of its full “use and enjoyment” of the software it had paid Ware to develop. But the trial court did not award this sum to compensate for the software that Ware developed and which ARSS now possesses; it awarded it as refund of money paid to Ware for his past services, for which the company had already received the benefit of the bargain. ARSS used the applications to run its business, and Ware provided technical support and maintenance services to ARSS. The company received value in exchange for the money it paid to Ware, and its cost of compensating Ware during that time period was not an element of damages that resulted from Ware’s computer trespass. Accordingly, we reverse the award of $15,000 for Ware’s services.

3. Finally, Ware correctly asserts that the trial court erred in failing to specify the statutory grounds upon which it awarded attorney fees or make findings of fact specifying the conduct upon which the award was based. In response, ARSS argues that Ware never objected to the introduction of its attorney fees affidavit at trial and never introduced evidence disputing the amount sought. Thus, ARSS asserts that the evidence demanded the award of attorney fees.

During the trial, at which Ware represented himself, ARSS’s counsel stated to the court that “as a preliminary matter,” he was entering into evidence his “affidavit of counsel in with the attorney fee matter.” The court replied, “Okay,” and the exhibit was admitted. There is no indication in the record that counsel showed Ware the affidavit before submitting it, nor was Ware asked if he had any response or objection to it. Further, ARSS’s counsel never testified about his bill. The trial court simply awarded to ARSS all of the fees listed in counsel’s affidavit, without making findings of fact or identifying the Code section upon which the award was based.

“Generally, an award of attorney fees is not available in Georgia unless authorized by statute or contract.” (Citation and punctuation omitted.) Ward v. Ward, 289 Ga. 250, 251 (2) (710 SE2d 555) (2011). When a trial court awards attorney fees to a party, it must specify the statutory basis for the award, and “[w]hen a trial court exercises its discretion in assessing attorney fees and costs of litigation under OCGA § 9-15-14,itis incumbent upon the court to specifythe conduct upon which the award is made.” McKemie v. City of Griffin, 272 Ga. 843, 844-845 (4) (537 SE2d 66) (2000).

Inits complaint, ARSS sought attorney fees under OCGA § 9-15-14 “as well as any other statutory or common law basis,” and again sought attorney fees in its two subsequent motions for contempt without specifying the statutory basis that would authorize the fees. Although ARSS states in its second contempt motion that the trial court “upheld” the TRO after a hearing and ordered Ware to comply, the record contains no order to that effect. In fact, other than the final order after the bench trial, the only order in the record is the one granting ARSS an ex parte temporary restraining order on October 3, 2011, three days after suit was filed, and the TRO does not address attorney fees.

In its final order awarding ARSS $17,875 in attorney fees, the trial court erred in failing to make express findings of fact or conclusions of law as to the statutory basis for its award of attorney fees to ARSS. Woods v. Hall, 315 Ga. App. 93, 97-98 (2) (726 SE2d 596) (2012).

More importantly, the court’s order fails to even specify whether the attorney fees were awarded under OCGA § 9-15-14 at all, much less which subsection of the statute supports the award. Accordingly, we must vacate this award and remand this case to the trial court for reconsideration of the grant of attorney fees and to make express findings of fact and conclusions of law as to the statutory basis for any such award and the conduct which would authorize it.

Decided October 9, 2013.

Slotkin & Caiola, Fred R. Slotkin, Jr., Anne P. Caiola, for appellant.

Bell & Washington, Quinton G. Washington, for appellee.

(Footnote omitted.) Id.

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

Miller and Ray, JJ., concur.

       Exhibit A is not included in the record, nor was it introduced or discussed at trial.

       While ARSS also argues that the parties’August 2009 contract gave ARSS the right to collect the costs of litigation, the contract only provided that Ware would indemnify ARSS for defending against any intellectual property claims related to the software he developed, including attorney fees and costs. No such issues appear in this case.


author: Phipps, Chief Judge.

text:
    A13A1440.
    BROWN v. THE STATE.
    (749 SE2d 781)
   Phipps, Chief Judge.

Freddie Brown appeals from the denial of his motion to withdraw his guilty plea, contending that the trial court erred by rejecting the negotiated plea agreement without first informing him that it intended to do so. We agree and reverse.

In State v. Germany, our Supreme Court held:

... if the trial court intends to reject [a] plea agreement, the trial court shall, on the record, inform the defendant personally that (1) the trial court is not bound by any plea agreement, (2) the trial court intends to reject the plea agreement presently before it, (3) the disposition of the present case may be less favorable to the defendant than that contemplated by the plea agreement, and (4) that the defendant may then withdraw his or her guilty plea as a matter of right.

“If the plea is not then withdrawn, sentence may be pronounced.”

Brown was indicted on two counts of armed robbery, two counts of possession of a firearm during the commission of a crime, and one count of possession of a firearm by a convicted felon. On August 28, 2008, Brown executed a form titled “PLEA OF GUILTY (NOLO CONTENDERE) ACKNOWLED [G]MENT AND WAIVER OF RIGHTS.” The form, which was signed by Brown, his attorney, and the prosecuting attorney, provided that Brown: “want[s] to plead GUILTY to . . . Armed robbery (1 count), Robbery (1 count), and Possession of a Firearm by a Convicted Felon.”

The form pertinently contained the following:

“Has any plea agreement been made by you with anyone which causes you to plead GUILTY?” Brown placed his initials next to Wes.” The form continued: “If so, exactly what is the plea agreement as you understand it?” Handwritten on the blank lines that followed was this response:

Reduce 1 count of Armed Robbery to Robbery, Nolle Prosequi 2 counts of Possession of a Firearm during the Commission of a crime, reccomend [sic] a concurrent sentence on all counts and withdraw recidivist noticef.J

The prosecuting attorney signed the form on August 28, certifying that he had “carefully examined the foregoing plea, and... that all the required and appropriate blanks thereon have been filled correctly to enable the Court to accept the plea and impose sentence.”

The same day, at the plea hearing, the prosecuting attorney gave the factual basis for the plea, pertinently stating:

Pursuant to a negotiated plea agreement between the State and [defense counsel,] the defendant is pleading guilty to count one armed [robbery], pleading guilty on count three for the lesser included offense of robbery by intimidation and pleading guilty to count five which is possession of a firearm by a convicted felon. We have no recommendation as to the sentence in this matter.

The prosecuting attorney then informed the court of the sentences Brown’s co-defendants had received, and stated “we have no recommendation as to [Brown’s] sentence.” The defense attorney then commented on the various defendants’ roles in the charged crimes and the sentences the co-defendants had received, requested leniency, and added that he understood that recidivist treatment would be waived. The court then pronounced the sentences, which were consistent with those set out in the plea acknowledgment form, except that the sentences for robbery by intimidation and possession of a firearm by a convicted felon would be served consecutively, Brown interjected: “It was told on my paper that everything would be . . . concurrent.” The court replied: “[T]hat would be purely a recommendation. The Court’s not required to accept and considering your history it would not be appropriate. That shall be the sentence of the Court.” Brown (personally and through counsel) immediately asked permission to withdraw the guilty plea, but the court denied the request.

Brown subsequently filed a written motion to withdraw the guilty plea on the ground that, inter alia, the court had rejected the plea agreement without first informing him that it intended to do so. The court denied the motion.

Although “[a] 11 plea bargains are subject to the trial court’s approval and can never be more than recommendations,” trial courts are nonetheless required

to tell defendants explicitly that they have the right to withdraw their plea because the court intends to reject the negotiated plea. . . . [T]he consequences are too severe to allow vague statements or implication to supplant the definitive requirements articulated by the Supreme Court of Georgia and court rules.

“The steps to be taken in rejecting a plea agreement are not optional.... Failure to so inform the defendant mandates a reversal of the conviction.”

The court did not inform Brown, prior to pronouncing the sentence, that it intended to reject any part of the plea agreement. Then, after pronouncing the sentence, the court denied Brown’s request to withdraw his guilty plea. Thus, reversal is required.

The state’s contention that there was no negotiated plea agreement (and thus, that the procedures set out in USCR 33.10 were inapplicable) is belied by the record. The prosecuting attorney stated at the plea hearing that Brown was pleading guilty “[pursuant to a negotiated plea agreement between the State and [defense counsel].” What is more, the plea acknowledgment form, signed by the prosecutor and Brown, explicitly stated that Brown understood the plea agreement to be that concurrent sentences were being recommended. The prosecuting attorney’s signature on the form certified that the required and appropriate blanks on that form had been filled in correctly; and the prosecuting attorney did not assert at the plea hearing that Brown’s understanding of the plea agreement (that concurrent sentences were being recommended) was incorrect.

As this court has recognized: “Negotiated plea bargaining is a dynamic process that involves ‘give-and-take negotiations between the prosecution and defense’ on often multiple issues. The end result of a negotiated plea agreement is, in essence, a contract between a defendant and the State.” Here, a plea agreement was negotiated and reached, and that signed agreement included a recommendation of concurrent sentencing. If the trial court intended to reject the terms of the plea agreement, it was required to so inform Brown (and to permit him to withdraw his guilty plea). Under the circumstances, the judgment must be reversed.

Judgment reversed.

Ellington, P. J., and Branch, J., concur.

Decided October 9, 2013.

Jimmonique R. S. Rodgers, for appellant.

Ashley Wright, District Attorney, Madonna M. Little, Titus T. Nichols, Assistant District Attorneys, for appellee.

       246 Ga. 455 (271 SE2d 851) (1980).

        Mulkey v. State, 265 Ga. App. 631, 632 (595 SE2d 330) (2004); see Uniform Superior Court Rule (USCR) 33.10.

        Lawrence v. State, 234 Ga. App. 603, 604 (1) (507 SE2d 490) (1998) (punctuation and footnote omitted); USCR 33.10.

       The indictment also charged two other individuals with the crimes, except for the offense of possession of a firearm by a convicted felon, for which only Brown was charged.

       The final disposition and sentence form provided: Count 1 (armed robbery) — 20 years in confinement; Count 5 (possession of a firearm by a convicted felon) — 5 years to run consecutive with Count 1; Count 3 (robbery by intimidation as a lesser included offense of armed robbery) — 5 years to run consecutive to Count 1; and nolle prosequi Counts 2 and 4 (possession of a firearm during the commission of a crime). The twenty-year sentence on Count 1 was later clarified so as to provide that ten years of the sentence would be served in confinement and ten years would be served on probation.

        Jackson v. State, 172 Ga. App. 874, 875 (324 SE2d 816) (1984) (citation and punctuation omitted).

        Forrest v. State, 251 Ga. App. 487, 488-489 (2) (554 SE2d 735) (2001) (citation, punctuation and emphasis omitted).

        Lawrence, supra (footnote omitted).

       See Thompson v. Greene, 265 Ga. 782, 784 (1) (462 SE2d 747) (1995); Lawrence, supra at 604-605 (1).

       See Rosser v. State, 273 Ga. App. 745-746 (615 SE2d 842) (2005) (holding that USCR 33.10, which codified the Court’s analysis in Germany regarding the trial court’s duty to inform defendants of its intent to reject negotiated plea agreements, did not apply to a defendant’s nonnegotiated plea).

       (Emphasis supplied.)

        Clue v. State, 273 Ga. App. 672, 674-675 (615 SE2d 800) (2005) (citations and punctuation omitted); see Brown v. State, 261 Ga. App. 115, 116-117 (582 SE2d 13) (2003); Martin v. State, 207 Ga. App. 861, 862 (429 SE2d 332) (1993) (a plea bargain agreement may be considered as a contract).

       See Jackson, supra; see generally Sanders v. State, 169 Ga. App. 125 (1) (312 SE2d 160) (1983) (reversing trial court’s denial of defendant’s motion to withdraw his guilty plea where trial court had stated that it would not follow the state’s recommendation as to sentence, pronounced sentence, and then refused to allow defendant to withdraw his guilty plea which had been based on the agreement; trial court had not informed defendant, prior to imposing the sentence, of his right to withdraw his plea).

       See Smith v. State, 239 Ga. App. 776, 777 (521 SE2d 911) (1999) (reversing judgment where trial court rejected a plea agreement without complying with the requirements of USCR 33.10 prior to pronouncing sentence); Lawrence, supra; Jackson, supra.


author: McMILLIAN, Judge.

text:
    A13A1449.
    OWENS v. THE STATE.
    (749 SE2d 783)
   McMILLIAN, Judge.

Roy Owens appeals the denial of his motion for new trial following his conviction by a jury on one count of armed robbery and one count of possession of a firearm during the commission of a felony. On appeal, he asserts that the trial court erred in denying his motion for new trial because he received ineffective assistance of counsel at trial and during his presentence hearing. Owens also asks that his case be remanded for resentencing because he asserts that the trial court erred in failing to consider mitigating and aggravating circumstances in pronouncing sentence.

Viewed in the light most favorable to the verdict, the evidence at trial showed that shortly after opening up the Family Dollar store in Tifton at around 8:00 a.m. on May 26,2011, store manager Jacob Bias was approached by a masked man. Bias said that the man was wearing a white sweatshirt, dark pants, and a black mask that covered most of his face. The man grabbed the back of Bias’s shirt, put a gun to his head, and told Bias to take him to the store’s safe. As Bias reached into his pocket to grab his keys, the man said, “Don’t try anything stupid. The gun is loaded.” When Bias bent down to open the safe, the man put the gun to the back of his head. And when Bias handed over the money, the man reached around and pepper sprayed him. At around 8:05 to 8:10 that morning, Janey Finehart was parking in front of the Family Dollar store when she saw a man run out of the store, pick up a bicycle and begin riding away. She said that the man was wearing a gray hoodie and had something black over his face.

Natasha Godfrey of the Moultrie Police Department responded to the robbery report and interviewed Bias and Finehart. She notified other responding officers that the suspect was wearing “a white hoodie, possibly white or gray in color,” and that he had on a mask. She also indicated the direction in which the suspect was heading. As Deputy Terry Gibson of the Colquitt County Sheriff’s Department headed toward the crime scene in response to the report, he saw a man walking away from a dumpster behind an apartment building near the robbery scene. The man placed his hand partially over his face and ran into the back door of an apartment. Officers secured both the front and back doors of the building, while Gibson and another officer searched the area surrounding the dumpster. Between the back wall of the dumpster and the building, they located a “grayish” hoodie and a small container of pepper spray. Later, when the same man seen entering the apartment came out again, he was placed into custody. That man was subsequently identified as Owens.

Sean Bostick, an investigator with the Colquitt County Sheriff’s Department, also responded to the robbery report and began circling the area looking for the suspect. The report indicated that a bicycle was involved, and during Bostick’s search, he saw a bicycle lying on a curb, partially in the roadway, near an alley that cut through the same apartment complex. The bicycle was located in an area near the apartment where Owens was apprehended. Other officers found a black “do-rag” scarf near the area where Bostick located the bicycle.

Anterianna Walker, Owens’s cousin, testified that sometime after 8:00 on the morning of the robbery, she was inside an apartment at the same complex with her mother when she heard Owens banging on the door. When Anterianna let him inside, she noticed that he was sweating so much that his shirt was wet. She also saw that he had a zippered bank bag in his pocket and a gun. Owens placed both of these items down into furniture in the apartment. He then went upstairs to use the phone and repeatedly looked out the windows where Anterianna could see the police. Owens was wearing pants at the time, but changed into a pair of Anterianna’s gym shorts. LaToya Walker, Anterianna’s mother, testified she was awakened that morning when Owens asked to use her phone. When she learned that police were outside the apartment, she asked Owens what he had done. Although he denied he had done anything, he told LaToya at one point that he had done “nothing that they can prove.” LaToya later granted police permission to search her apartment.

Dave Underwood, an investigator with the Moultrie Police Department, and David Corona, an investigator with the Colquitt County Sheriff’s Department, participated in the search of the Walkers’ apartment. During that search, police located a pair of pants and a gun stuffed in a chair. They also located a money bag and $549 in cash stuffed inside a loveseat. LaToya Walker stated that she did not own a firearm, nor did she keep a green zippered bank bag stuffed in her furniture. Underwood identified State’s Exhibit 4 as the money bag police located in the Walkers’ apartment and State’s Exhibit 26 as the gun they recovered there.

Bias also identified State’s Exhibit 4 as the bag from the Family Dollar safe that he gave to the masked man, and Owens’s brother, Matthew Stringer, identified State’s Exhibit Number 26 as a gun he owned. Stringer testified that on the morning of the robbery, he was awakened by a call from Owens asking him to come to LaToya Walker’s house right away. Before Stringer left his house that morning, he noticed his gun was missing, although he had seen it there the night before.

Thereafter, Owens was charged with and convicted of one count of armed robbery and one count of possession of a firearm during the commission of a felony. After denial of his motion for new trial, this appeal followed.

1. Owens asserts that he received ineffective assistance of counsel at trial because his attorney (a) failed to move for a mistrial after learning that the jurors had not been provided with any means of taking notes; (b) failed to move for a directed verdict at the close of the State’s case; and (c) allowed an agent of the State to attempt to convince him to accept the State’s plea offer.

“A claim of ineffective assistance of counsel is a mixed question of law and fact. The proper standard of review requires that we accept the trial court’s factual findings unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) State v. Crapp, 317 Ga. App. 744, 745 (2) (732 SE2d 806) (2012). And in considering Owens’s arguments, we apply

[t]he two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984), [which] asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency.

(Punctuation and footnote omitted.) Bruce v. State, 252 Ga. App. 494, 498 (2) (555 SE2d 819) (2001). “There is a strong presumption that counsel’s conduct falls within the range of sound trial strategy and reasonable professional judgment. [Strickland, 466 U.S. at 689].” Newkirk v. State, 290 Ga. 581, 582 (2) (722 SE2d 760) (2012).

[A]nd the defendant bears the burden of overcoming this presumption. To carry that burden, the defendant must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not, or put another way, that his lawyer made errors so serious that he was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.

(Citations and punctuation omitted.) State v. Worsley, 293 Ga. 315, 323 (3) (745 SE2d 617) (2013). See also Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012) (“The likelihood of a different result must be substantial, not just conceivable.”) (citation omitted).

(a) Owens contends that his trial counsel was deficient in failing to move for a mistrial after the trial judge stated, as the State’s fifth witness was taking the stand, that he had intended at the start of trial to offer the jury pads and pencils for note-taking. The judge indicated that “if the jury thinks it would be helpful, we can do that right now.” Owens argues that notepads would have been helpful to the jury in light of conflicts in the evidence already presented. He asserts that his trial counsel should have moved for a mistrial at this point or at least demanded that the jury be furnished with materials for taking notes. But the transcript indicates that when the trial judge offered the jurors pads and pencils, they declined the offer. Owens offered no evidence on this issue at the hearing on the motion for new trial beyond his trial counsel’s testimony that he never considered moving for a mistrial or demanding that note-taking materials be provided to the jury.

We know of no provision entitling a defendant to demand that jurors be furnished with the means for taking notes in every case, nor has Owens pointed us to any such law. To the contrary, absent special or unusual circumstances, the decision whether to allow the jury to take notes lies in the sound discretion of the trial court. See Potts v. State, 259 Ga. 96, 104 (21) (376 SE2d 851) (1989) (trial court did not abuse discretion in allowing jurors to take notes); Miller v. State, 307 Ga. App. 598, 598-599 (705 SE2d 697) (2011) (within trial court’s discretion to allow jurors to take notes); Williamson v. State, 142 Ga. App. 177, 178 (3) (235 SE2d 643) (1977) (trial court did not abuse discretion in instructing juror not to take notes because the case was not complicated); White v. State, 137 Ga. App. 9, 10 (1) (223 SE2d 24) (1975) (in absence of special or unusual circumstances, note-taking left to judge’s discretion). We find no special or unusual circumstances in this case sufficient to remove the issue of note-taking from the trial court’s discretion. Therefore, Owens has failed to establish that his trial counsel was deficient in failing to move for a mistrial or to demand that writing materials be furnished to the jury.

In any event, the transcript indicates that when the trial court offered paper and pencils for note-taking, the jurors declined the offer. Under these circumstances, Owens cannot establish that he was prejudiced by the trial court’s failure to offer the materials earlier or by his counsel’s failure to take further action in this regard. Accordingly, we find no merit to Owens’s claim of ineffective assistance of counsel on this ground.

(b) Owens argues that his trial counsel was deficient in failing to move for a directed verdict at the close of the State’s case. Owens’s counsel did not recall the specifics of Owens’s case but testified that if he did not move for a directed verdict, it was because he felt that the evidence was sufficient to go to the jury.

We find that the evidence at trial, although circumstantial, was consistent with the charges in this case; was sufficient to exclude every reasonable hypothesis save that of Owens’s guilt; and was sufficient to allow the jury to find Owens guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979). And because the evidence was sufficient to support Owens’s convictions, “counsel’s failure to move for a directed verdict presents an insufficient ground as a matter of law for claiming ineffective assistance of counsel.” (Citation omitted.) Nelson v. State, 285 Ga. 838, 839 (2) (684 SE2d 613) (2009).

(c) Owens also asserts that his trial counsel was ineffective for allowing Commander Alfonzo Cook of the Moultrie Police Department to speak with Owens about accepting the State’s plea offer.

The terms of the State’s offer were put on the record prior to trial. The State offered Owens the opportunity to plead to robbery by force in exchange for a joint recommendation of a twenty-year sentence, with eight to serve. Alternatively, he could “plead to [the] same charge in front of a judge as a [pre-sentence investigation] sentence.” Owens’s counsel said that he informed Owens of the State’s offer, the benefits of the offer, the mandatory minimum sentences for armed robbery and the possibility of parole in a case of armed robbery. But Owens wanted to go to trial.

Owens’s attorney testified at the new trial hearing that he advised Owens to accept the State’s plea deal because it was a good offer and the State had a very strong case against him. Nevertheless, Owens chose to reject the offer. After jury selection, Cook asked counsel if he had a problem with Stringer, Owens’s brother, talking to Owens with the hope that Owens might decide to accept the plea offer. Owens’s counsel accepted Cook’s offer because by that time, Owens was not participating in his defense other than to give him “very short, sarcastic-type answers when [he] tried to discuss [the case] with him.” He felt that Stringer might be able to help, and he viewed the meeting as a family member’s attempt to tell Owens that he was making a mistake in going to trial. And, in fact, Stringer testified that he agreed to meet with Owens and Cook after Cook asked him to “[t]alk some sense [into Owens] before he [screwed himself] on the trial.” Owens’s counsel, however, did not ask Cook about the specifics of what they intended to say at the meeting.

Owens’s counsel said that he did not participate in the meeting because he thought the brother would be doing most of the talking and that it would be best to let them talk without him. Owens’s counsel was not concerned that Cook could misrepresent the plea because he had gone over the terms of the offer thoroughly with Owens.

Although Owens’s counsel’s decision to allow him to speak with his brother and a police officer outside of his presence is somewhat unorthodox, he believed Stringer would do most of the talking, and counsel hoped that he might be able to persuade Owens to accept the plea outside of counsel’s presence. It is apparent that Owens’s counsel believed that accepting the State’s plea offer would have been in Owens’s best interest and that his approval of Owens’s conversation with Cook and Stringer was a last-ditch attempt to obtain the recommended result. Accordingly, under the peculiar circumstances of this case, we find that Owens has failed to overcome the strong presumption that his attorney’s performance falls within “the broad range of reasonable professional conduct or [to] affirmatively [show that his counsel’s approval of the conversation] was not a conscious, deliberate trial strategy.” (Citation omitted.) Hall v. State, 292 Ga. 701, 703 (4) (a) (743 SE2d 6) (2013).

Moreover, Owens presented no evidence of the content of that conversation other than Stringer’s testimony that Cook did not convey the exact terms of the plea offer in Stringer’s presence. Thus, Owens failed to demonstrate that Cook misrepresented the plea, improperly interrogated Owens outside the presence of his counsel, or engaged in any other improper conduct during the conference. As a result, Owens failed to show any prejudice resulting from his counsel’s decision to allow him to meet with Cook and Stringer.

2. Owens also asserts that he received ineffective assistance of counsel at the presentence hearing because his counsel did not object to the State’s use of his criminal record in Florida, even though the State failed to provide notice of its intent to use his earlier conviction in aggravation of punishment. Owens also contends that his counsel failed to adequately prepare for the presentence hearing.

The trial court conducted the presentence hearing immediately after the jury announced its verdict. Owens’s trial counsel asked the trial court “for as much leniency as the Court could give,” noting that Owens had no prior criminal history in Georgia. Owens declined to make a statement. The prosecutor then stated, without objection, that Owens had a criminal record in Florida from 2007, when he was charged with armed robbery but later pled to a grand theft felony. The prosecutor did not, however, introduce a certified copy of the Florida conviction into evidence. The prosecutor asked the trial court to impose the maximum sentence, given Owens’s history “of having a firearm with him during crimes” and the serious nature of the crime in this case.

The trial court sentenced Owens to twenty years, eighteen to serve, on the armed robbery charge and five years on the firearm possession charge, to be served consecutively, although the trial court ordered that the latter sentence could be served on probation. This sentence fell within the legal parameters for an armed robbery conviction under OCGA § 16-8-41 (b), which provides for punishment “by death or imprisonment for life or by imprisonment for not less than ten nor more than 20 years,” and for a conviction of possession of a firearm during the commission of a felony under OCGA § 16-11-106 (b), which provides for punishment “by confinement for a period of five years, such sentence to run consecutively to any other sentence which the person has received.”

At the hearing on the motion for new trial, Owens’s trial counsel testified that he did not ask for a continuance for the presentence hearing because he did not see any benefit in doing so. By that point, Owens was refusing “[to] participate on any meaningful level” with his counsel, and no family members had offered to assist in Owens’s defense. Owens’s counsel acknowledged that he made little more than a “pro forma request for leniency,” but he said that this was “theoretically” a strategic choice because he did not know what else he could have done. He said that “sometimes [it had] been [his] experience that in situations like that, saying less is more.”

Owens’s trial counsel conceded, however, that he did no investigation to identify potentially mitigating evidence and never questioned Owens’s family about whether they had any evidence to present in mitigation at presentencing. In fact, he never talked to any of Owens’s family members. In his initial interview with Owens, however, he asked about his education and his mental health history. And although he did not recall asking Owens specifically about witnesses for presentencing, he said it was his practice to ask his clients whether they had any witnesses they wanted to call, and he did not remember Owens mentioning anyone.

With respect to mitigation evidence that could have been presented, Stringer testified at the motion for new trial hearing that their mother died when Owens was seven, which resulted in the family being split apart. Owens, who had been living with his mother, grandmother and siblings, was sent to live with his father, who in Stringer’s opinion never taught him right from wrong or “how to be a man.” He also testified that Owens was sent to a special school to help him “catch up” so that he could graduate with his class.

Because Owens’s counsel never spoke with Stringer, he was unaware Owens had lost his mother when he was young, had attended a special school, or any of the other information about which Stringer testified. But even had Owens’s counsel known this information, he said he would not have considered this information significant or necessary for presentation to the court in mitigation.

However, Owens’s counsel was aware prior to trial of Owens’s Florida robbery offense, probably from his discussions with Owens. He also discussed the Florida crime with the prosecutor, and he expected the State to cite this conviction during sentencing. Nevertheless, he never saw a printout of Owens’s Florida record prior to trial and only reviewed it for the first time on the day of the motion for new trial hearing; therefore, he had no way to determine whether the prosecutor’s representations about this crime were accurate. Owens’s counsel stated, however, that the prosecution’s characterization of the prior conviction was consistent with his knowledge of the crime.

Pretermitting whether this evidence demonstrates that Owens’s trial counsel’s performance at presentencing was deficient, we find that Owens failed to show the requisite prejudice. This Court is not required to analyze both prongs of the Strickland test if the defendant has made an insufficient showing on either prong; thus, “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, 466 U.S. at 697 (IV). Nevertheless, “[t]o the extent that the performance of counsel was deficient in more than one respect, it is the collective effect of the deficiencies against which prejudice is measured. [Cit.]” Worsley, 293 Ga. at 324 (3). See also Schofield v. Holsey, 281 Ga. 809, 812, n. 1 (642 SE2d 56) (2007). We find that Owens failed to carry his burden on the prejudice prong even considering the collective effect of his claimed instances of ineffective representation at sentencing.

Although Owens’s counsel failed to object to the prosecutor’s mention of the Florida conviction, Owens provided no evidence to demonstrate that the prosecutor misrepresented the terms of that conviction. In any event, the trial judge stated at the motion for new trial hearing that he did not consider Owens’s Florida record in pronouncing sentence because he had no certified copy of the prior conviction. He said that he only considered the specific facts of this case (i.e., “what happened, what was testified to, how the evidence was presented”) in sentencing Owens.

And although his trial counsel failed to actively search for mitigation evidence, Owens failed to provide such information to his counsel. See Tyner v. State, 313 Ga. App. 557, 566-567 (6) (722 SE2d 177) (2012) (counsel not ineffective in failing to present evidence regarding defendant’s mental health condition where counsel was unaware of this condition). The only potential evidence Owens presented at the motion hearing came from Stringer. Owens’s counsel did not consider this information to be significant enough to present in mitigation, and Owens failed to show how this evidence might have affected his sentencing. See Eskew v. State, 309 Ga. App. 44, 51 (5) (d) (709 SE2d 893) (2011) (defendant failed to establish prejudice from counsel’s decision not to present mitigating evidence at presentencing where no evidence adduced as to potential effect of omitted evidence on sentence).

Accordingly, even considering the collective effect of his counsel’s alleged deficiencies, we find that Owens has failed to establish a reasonable probability that the outcome of the proceedings would have been different but for his counsel’s performance.

3. Owens further asserts that the trial judge erred in sentencing because he admittedly did not consider any evidence outside the facts of this case. Owens asserts that the trial court had a duty to consider mitigating and aggravating evidence in addition to the evidence adduced at trial.

Decided October 9, 2013.

Hayden L. Willis, for appellant.

J. David Miller, District Attorney, Brian A. McDaniel, Assistant District Attorney, for appellee.

Under OCGA § 17-10-2 (a) (1), a trial judge is required to “hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or nolo contendere of the accused, or the absence of any prior conviction and pleas.” “The judge shall also hear argument by the accused or the accused’s counsel and the prosecuting attorney, as provided by law, regarding the punishment to be imposed.” OCGA § 17-10-2 (a) (2).

Here, the trial court provided the parties an opportunity to present evidence and argument on the issue of sentencing as required by the statute. And as Owens has argued and his counsel admitted, the defense presented no mitigating evidence for the trial court’s consideration, choosing to rely, instead, on a plea for leniency. The State, in turn, presented no aggravating evidence — the prosecution failed to introduce a certified copy of Owens’s prior criminal conviction — but nevertheless argued for the maximum sentence based on his prior conviction. The trial judge stated on the record, however, that he did not consider the prior conviction. Indeed, it would have been improper for the trial court to do so. See Brinkley v. State, 301 Ga. App. 827, 831 (2) (689 SE2d 116) (2009) (“a trial court cannot rely upon the hearsay statement of a prosecutor to establish a fact for purposes of sentencing”) (citation omitted).

Therefore, without any evidence in mitigation or aggravation, the evidence adduced at trial presented the only proper subject for the trial court’s consideration, and we accordingly find no error.

Judgment affirmed.

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

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

       On cross-examination, Bias acknowledged that he could have told the police immediately after the incident that the man’s sweatshirt was gray and that it could have been gray. But at the time of trial, he believed that the sweatshirt was white, although he was not 100 percent sure.

       We note that the jury had no obligation to take notes. As the State points out, Georgia’s Pattern Jury Instructions provide the following instruction on the issue of note-taking:
      You may take notes, hut you are not required to do so. If you decide to take notes, please remember that note taking should not divert you from paying full attention to the evidence and evaluating witness credibility. Your observations of the witnesses during their testimony can be vital to your determination of the believability of their testimony.... Notes are not evidence, only memory aids, and should not take precedence over your recollection. It is the duty of each juror to recall the evidence, and while you may consider another juror’s notes to refresh your memory, you should rely on your own recollection of the proceedings.

      (Emphasis supplied.) Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 0.01.00 (4th Ed. 2007).

       Although the transcript reflects that the trial judge made this representation, this reference appears to be a typographical error, as the speaker begins his recitation by addressing the judge.

       Counsel testified that he thought Owens had less than a five percent chance of being acquitted.