author: ELLINGTON, Presiding Judge.

text:
    A15A1142.
    JONES v. THE STATE.
    (773 SE2d 408)
   ELLINGTON, Presiding Judge.

A Hall County jury found Brandon Jones guilty beyond a reasonable doubt of driving under the influence of a drug to the extent that it was less safe to drive, OCGA § 40-6-391 (a) (2); driving with a suspended license, OCGA § 40-5-121 (a); and failing to wear a seat belt, OCGA § 40-8-76.1 (b). Following the denial of his motion for a new trial, Jones appeals, challenging the sufficiency of the evidence as to Count 1 of the accusation, DUI. He also contends that Count 1 fails to charge him with any offense under Georgia law. For the reasons explained below, we affirm.

1. Jones contends that the only officer who observed him driving did not see any unsafe driving. In addition, he contends that, to the extent there was evidence that he was impaired to the extent he was a less safe driver, the evidence does not show that the substance he ingested as “synthetic marijuana” had any effect on his ability to drive. As a result, he contends, the evidence was insufficient to sustain his conviction.

On appeal from a criminal conviction, the appellate court

view[s] the evidence in the light most favorable to the verdict [,] and an appellant no longer enjoys the presumption of innocence. [The appellate court] determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, [the appellate court] must uphold the jury’s verdict.

(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

Viewed in the light most favorable to the verdict, the record shows that, on July 4, 2012, a patrol officer observed Jones driving without a seat belt and initiated a traffic stop. Jones told the patrol officer that he was wearing his seat belt, although he was not; his speech was very slurred; and his movements were lethargic. A second officer arrived to help with the stop. That officer had extensive training in detecting impairment by alcohol and other drugs, including drugs that are classified as synthetic marijuana. In addition, that officer was personally acquainted with Jones and had had the opportunity to observe Jones when he was sober. The second officer took over the DUI investigation.

The investigating officer observed that Jones was sweating heavily and speaking in a jittery manner. The officer asked Jones what drugs he had been using, and Jones responded that he had smoked synthetic marijuana and had taken his prescription Thorazine. Jones agreed to take field sobriety tests. The officer administered the horizontal gaze nystagmus test; that test specifies six possible clues (three types of movement, observed in each eye), and the officer observed all six. The officer testified that four or more clues indicates impairment. The officer tested for vertical gaze nystagmus and observed that vertical gaze nystagmus was present, which indicated that Jones had consumed a higher dose of an intoxicating drug than he was accustomed to take. The officer administered the walk-and-turn test, observing seven out of eight possible clues, and the one-leg-stand test, observing two out of four possible clues. In addition to administering these standardized tests, the officer observed Jones closely and saw that his carotid pulse was rapid and he was sweating profusely; his sense of the passage of time was abnormally fast; he displayed tremors in his eyelids; and he swayed and was unable to maintain his balance. Based on Jones’ performance on the field sobriety tests and his other observations about Jones’ condition, the officer concluded that his motor coordination and ability to react to driving conditions were impaired and that he was under the influence of some drug to the extent it was less safe for him to drive.

The officer testified that the term “synthetic marijuana” is used to describe the result of a manufacturer spraying a psychoactive drug, such as a stimulant, a depressant, or a hallucinogen, on some leafy plant matter that can be smoked as the means of ingesting the drug. He also testified that Thorazine is a central nervous system depressant that can cause horizontal gaze nystagmus.

The offense of driving while under the influence to the extent that it is less safe to drive has three elements: “(1) driving, (2) under the influence of alcohol, (3) to the extent that it is less safe for the person to drive.” (Footnote omitted.) Lee v. State, 280 Ga. App. 706, 707 (634 SE2d 837) (2006). The State is not required, however, to adduce evidence that the defendant “actually committed an unsafe act while driving[.]” Id. See also Yglesia v. State, 288 Ga. App. 217, 218 (653 SE2d 823) (2007) (accord); Shaheed v. State, 270 Ga. App. 709, 710 (1) (607 SE2d 897) (2004) (Proving that a driver is impaired to the extent that it is less safe for the person to drive “requires proof of impaired driving ability, but not an actual unsafe act.”) (punctuation and footnote omitted; emphasis supplied). There was ample evidence that Jones was driving while his ability to drive safely was impaired. To the extent Jones contends that the evidence was insufficient because there was no evidence that he committed an actual unsafe act while driving, this argument lacks merit.

Moreover, by Jones’ own admission, he had smoked synthetic marijuana that day, and the State adduced evidence that, by smoking synthetic marijuana, Jones had ingested a psychoactive drug, although that drug was not identified. By Jones’ admission, he had also taken another psychoactive drug, prescription Thorazine. OCGA § 40-6-391 (a) (2) does not require proof that the defendant had consumed an illegal drug. The offense may be established by showing that the defendant was driving while under the influence of “any drug to the extent that it [was] less safe for the person to drive.” (Emphasis supplied.) Id. In addition, the evidence may authorize a jury to find a defendant guilty beyond a reasonable doubt of driving under the influence of one drug specified in a DUI, less safe, accusation or indictment, even when the evidence shows that the defendant had consumed drugs in addition to the specified drug. See Rivera v. State, 309 Ga. App. 544, 545 (1) (710 SE2d 694) (2011). The evidence in this case authorized the jury to find Jones guilty of driving under the influence of a drug to the extent that it was less safe to drive. Id. See Buchanan v. State, 264 Ga. App. 148, 151 (2) (589 SE2d 876) (2003) (Because OCGA § 40-6-391 (a) (2) makes it unlawful to drive while under the influence of any drug, an accusation or indictment brought pursuant to that Code section need not name a particular drug.).

2. Jones contends that Count 1 of the accusation fails to charge him with any offense under Georgia law. Jones failed to include in his appellate brief a statement of the method by which this claim of error was preserved for consideration on appeal as required by Court of Appeals Rule 25 (a). A claim that a charging instrument fails to charge the defendant with any offense under Georgia law can be raised in a general demurrer or a motion in arrest of judgment. Coleman v. State, 318 Ga. App. 478, 479 (1) (735 SE2d 788) (2012). The record shows that Jones did not file a general demurrer before trial or a motion in arrest of judgment within the term of court in which judgment was entered. “The failure to file a general or special demurrer, or a timely motion in arrest of judgment, waives any claim that could have been raised in a general or special demurrer.” Id.

Even if Jones could challenge the validity of the accusation on appeal, we see no fatal flaw in it. Count 1 accused Jones of committing the offense of driving under the influence of drugs to the extent it was less safe to drive because he “did drive a moving vehicle, while under the influence of a drug, to wit: synthetic marijuana, to the extent that it was less safe for him to drive.” As the arresting officer explained, synthetic marijuana denotes, not a single chemical compound, but a category of drugs, with the common element that the drug is ingested by smoking leafy plant material sprayed with the drug. Jones could not admit the charge as made and still be innocent of violating OCGA § 40-6-391 (a) (2).

We note that Jones also contends that, while the accusation charged him with driving under the influence of synthetic marijuana, the evidence was fully consistent with the theory that his impairment actually resulted from his prescribed medication, Thorazine. This argument invokes the “fatal variance” argument he made in the trial court.

[A] variance between the indictment and the evidence at trial is fatal if the allegations fail to meet these two tests: (1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not be taken by surprise by the evidence offered at trial, and (2) the allegations must be adequate to protect the accused against another prosecution for the same offense.

Decided June 9, 2015.

Leonard C. Parks, Jr., for appellant.

Stephanie D. Woodard, Solicitor-General, Daniel P. Sanmiguel, Assistant Solicitor-General, for appellee.

(Citations and punctuation omitted.) In the Interest of J. H. M., 295 Ga. App. 483, 485 (672 SE2d 411) (2008). As explained in Division 1, supra, an accusation charging a violation of OCGA § 40-6-391 (a) (2) need not specify a particular drug responsible for impairing the defendant’s ability to drive safely. Consequently, the “synthetic marijuana” detail incorporated into the accusation is “an unnecessary specification of a legally unnecessary fact.” (Citation and punctuation omitted.) In the Interest of J. H. M., 295 Ga. App. at 485 (1). Jones failed to show a fatal variance under the applicable standard. Id.

Judgment affirmed.

Dillard and McFadden, JJ., concur.

       See OCGA § 40-6-391 (b) (Alegal entitlement to use a drug is not a defense to DUI if the defendant “is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use.”); State v. Kachwalla, 274 Ga. 886, 887 (561 SE2d 403) (2002) (Aperson may commit the offense of driving under the influence of a drug other than alcohol that the person is legally entitled to use, provided the person’s use of the drug renders the person incapable of driving safely.).

        In Rivera v. State, the indictment charged the defendant with DUI under OCGA § 40-6-391 (a) (2), specifically, driving under the influence of lorazepam and driving under the influence of zolpidem; the defendant admitted having taken lorazepam; an officer observed the defendant driving erratically and violating traffic laws; the defendant exhibited clues of impairment on field sobriety tests; and a blood test showed that she had ingested lorazepam, zolpidem, and mirtazapine. 309 Ga. App. at 544-545. We held that the evidence was sufficient to convict her of the two DUI counts. Id. at 545 (1).

       A general demurrer challenges the validity of an indictment by asserting that the substance of the indictment is legally insufficient to charge any crime, and it should be granted only when an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law. Put another way, the true test of the sufficiency of an indictment to withstand a general demurrer is found in the answer to the question: Can the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective. If the indictment is fatally defective, the sufficiency of the indictment can be questioned by general demurrer or by motion in arrest of judgment.
      (Citations and punctuation omitted.) Poole v. State, 326 Ga. App. 243, 247-248 (2) (a) (756 SE2d 322) (2014).

       When a judgment has been rendered, either party may move in arrest thereof for any defect not amendable which appears on the face of the record or pleadings.... A motion in arrest of judgment must be made during the term at which the judgment was obtained.
      OCGA § 17-9-61.


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A15A0118.
    SCHLESSELMAN v. THE STATE.
    (773 SE2d 413)
   Boggs, Judge.

A jury found Steven Schlesselman guilty of computer child exploitation and attempted child molestation. Schlesselman appeals, challenging the sufficiency of the evidence. For reasons that follow, we affirm.

On appeal from a criminal conviction, the defendant no longer enjoys a presumption of innocence, and the evidence must be construed in the light most favorable to the verdict. See Collins v. State, 276 Ga. App. 358 (623 SE2d 192) (2005). We do not weigh the evidence or resolve issues of witness credibility, hut merely determine whether the jury was authorized to find the defendant guilty beyond a reasonable doubt. See id.

So viewed, the evidence shows that in May 2012, Effingham County Sheriff’s Investigator Joe Heath commenced a proactive child internet exploitation investigation. As part of the investigation, he created a profile on motherless.com, a social media website catering to persons with various sexual fantasies and fetishes, many involving children. Describing himself as a 39-year-old single mother trying to make money with her daughter’s help, Heath posted the profile under the user name “GeorgiaJenn” and asked other site users to send “her” an e-mail if “you are in Georgia and like young and just wanna hook up.”

Several months later, Heath received an e-mail from an individual who asked whether GeorgiaJenn “still needed some financial help.” Although the individual used the screen name “Loadedgunaz,” the e-mail identified Schlesselman as the sender. Heath responded as GeorgiaJenn, indicating that she was “looking for $150 and offering a 14 year old female to keep [you] company for an afternoon.” Loadedgunaz replied that he wanted to spend time with GeorgiaJenn and might be flying into Atlanta in December. GeorgiaJenn e-mailed back, stating: “I am currently seeing someone, but if you were truly interested in seeing my daughter that would be fine.” Noting that she lived several hours from Atlanta, she suggested that Loadedgunaz spend the night at her house. In response, Loadedgunaz inquired “what a night of companionship and lodging might go for?” GeorgiaJenn replied:

My boyfriend will not be here . . . but you must understand you would be welcome in my house but [I] do not cheat. My daughter likes older men and sees a couple on a regular basis. She is 14, and more than willing to make your stay a pleasant one. 1 nights [sic] lodging will be $175 . . . fair?

Loadedgunaz responded: “That sounds more than fair. What guidelines do u have for the overnight visit?” Explaining the “guidelines,” GeorgiaJenn stated, “no hitting and no anal... other than that she is pretty open.” Loadedgunaz replied, “[s]ounds good.”

Shortly before the scheduled visit, Loadedgunaz provided GeorgiaJenn with a cell phone number and asked her to text him “if we are on.” GeorgiaJenn assured him that she and her daughter were “ready for [the] visit.” On the appointed day, the two texted back and forth, arranging to meet at a gas station. Heath and several other officers subsequently found Schlesselman at the meeting place. They arrested him and, during a search incident to arrest, discovered $297 in cash on his person. The officers also seized a cell phone from Schlesselman’s car. The telephone number assigned to the phone matched the contact number that Loadedgunaz had provided to GeorgiaJenn. A search of the cell phone also revealed text messages about the meeting and a recent Internet search for “internet underage sex stings in [G]eorgia.”

1. Schlesselman argues that the State presented insufficient evidence to support his conviction for attempted child molestation. “A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. To establish attempted child molestation, therefore, the State was required to prove that Schlesselman took a substantial step toward doing “any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or [himself].” OCGA § 16-6-4 (a) (1).

According to Schlesselman, he did not take a substantial step toward committing child molestation. We disagree. Through numerous e-mail communications with GeorgiaJenn, whom he believed to be the mother of a 14-year-old girl, Schlesselman arranged to pay for a night of “companionship” with the child. He asked for and approved “guidelines” for the night, which can be construed as sexual in nature. He then traveled to Georgia by plane, drove from Atlanta to a designated meeting point, and waited with almost $300 in cash for GeorgiaJenn to arrive. At some point, he also researched underage sex stings on his cell phone.

Although Schlesselman’s communications did not describe any particular sexual acts that he intended to perform with the child, “[i]ntent, which is a mental attitude, can be inferred.” (Punctuation omitted.) Collins, supra at 359 (1). And whether a defendant possessed the necessary intent is “a question of fact for the jury after considering all the circumstances surrounding the acts of which the accused is charged.” (Punctuation omitted.) Id. Given the evidence presented, the jury was authorized to conclude that, with the intent of engaging in an immoral or indecent sexual act with a 14-year-old girl, Schlesselman took a substantial step toward committing the crime of child molestation. See Lopez v. State, 326 Ga. App. 770, 774 (1) (b) (757 SE2d 436) (2014) (attempted child molestation conviction authorized where defendant communicated with an adult whom he believed to be a child and took substantial steps to meet that person to engage in sexual activity); Brown v. State, 321 Ga. App. 798, 800 (1) (743 SE2d 474) (2013) (factfinder authorized to conclude that defendant took a substantial step toward committing child molestation by traveling to an arranged location to have sexual intercourse with someone he believed to be a 14-year-old girl). Accordingly, the evidence was sufficient. See OCGA §§ 16-4-1; 16-6-4 (a) (1); Lopez, supra; Brown, supra.

2. The jury also found Schlesselman guilty of violating the Computer or Electronic Pornography and Child Exploitation Prevention Act, which, at the time of the offense, provided:

It shall be unlawful for any person intentionally or willfully to utilize a computer on-line service or Internet service, including but not limited to a local bulletin board service, Internet chat room, e-mail, on-line messaging service, or other electronic device, to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child or another person believed by such person to be a child to commit any illegal act described in... Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation[.]

OCGA § 16-12-100.2 (d) (1) (2012).

On appeal, Schlesselman argues that this conviction must be reversed because he had no direct contact or communication with a child or someone he believed to be a child. Instead, he communicated only with GeorgiaJenn. He thus claims that he did not “solicit a person he believed to be a child to commit illegal acts,” as alleged in the indictment.

In State v. Cosmo, 295 Ga. 76, 81 (757 SE2d 819) (2014), our Supreme Court rejected a similar argument, finding that direct communication with the child was not necessary for a conviction under OCGA § 16-12-100.2 (d) (1). Although Schlesselman acknowledges Cosmo, he argues that it is distinguishable from this case because the Cosmo defendant was charged with attempting to solicit a minor to do illegal acts, while he was charged with soliciting those acts. Schlesselman asserts that communication through an intermediary is sufficient for attempted solicitation, but insufficient for solicitation itself. In his view, direct communication between the defendant and child must be established to prove solicitation.

Again, we disagree. It is true that OCGA § 16-12-100.2 (d) (1) criminalizes both solicitation and attempted solicitation of a minor, and much of Cosmo’s analysis focuses on the requirements for proving attempt. The Cosmo Court, however, also found more generally that “a solicitation of another may be made by communication with a third party.” Cosmo, supra at 80. Without limiting its discussion to cases involving attempted solicitation, the Court explained:

Just as solicitation of prostitution can be made through a third party pimp, solicitation of a child to commit the acts prohibited by OCGA § 16-12-100.2 (d) (1) may be conducted through an adult intermediary who is believed to be in a position of trust or authority with respect to the child.

Id.

The Court thus made clear that solicitation can occur through a third party. And in this case, we find the evidence of solicitation sufficient.

Decided June 10, 2015.

The Dames Taw Firm, Adam M. Dames, for appellant.

Richard A. Mallard, District Attorney, Benjamin T. Edwards, Assistant District Attorney, for appellee.

In the criminal context, the term “solicit” means “to command, authorize, urge, incite, request, or advise another to commit a crime.” Black’s Law Dictionary (5th ed. 1979); see also OCGA § 16-4-7 (a person commits criminal solicitation “when, with intent that another person engage in conduct constituting a felony, he solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct”). Here, the jury was authorized to find that, through e-mail communications with GeorgiaJenn, Schlesselman urged and requested a person he believed to he a 14-year-old girl to engage in immoral or indecent acts, in violation of OCGA § 16-6-4 (a) (1). As noted above, the communications did not reference particular sexual acts. But the jury could conclude — based particularly on the agreement to pay for a night of companionship with GeorgiaJenn’s child, Schlesselman’s request for “guidelines” with respect to the overnight visit, and GeorgiaJenn’s response to the request — that the purpose of the solicitation was a sexual encounter. The evidence, therefore, was sufficient to sustain his conviction for computer child exploitation. See OCGA § 16-12-100.2 (d) (1); Cosmo, supra at 81.

Judgment affirmed.

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


author: Branch, Judge.

text:
    A15A0218.
    SURETTE et al. v. HENRY COUNTY BOARD OF TAX ASSESSORS.
    (773 SE2d 416)
   Branch, Judge.

John and Marla Surette appealed their residential property valuation for the year 2011 to the Superior Court of Henry County. That court eventually signed a consent order and judgment between the Sureties and the Henry County Board of Tax Assessors that expressly established the value of the Surettes’ property as $153,000 for that year and for 2012 and 2013, as well, but subject to certain statutory law:

[T]he parties have expressly agreed, as indicated by their respective signatures hereto, that as of January 1, 2011, the fair market value of the real property and all improvements thereon... for tax purposes was $153,000.00----By further agreement and stipulation of the parties and subject to the provision of OCGA § 48-5-299 (c), the fair market value for January 1, 2012 and January 1, 2013, shall be $153,000.

Nevertheless, two years later the Surettes sought to appeal the 2013 valuation established by the consent order on the grounds that the value of the property had fallen significantly since the time of that order. The Board of Assessors concluded that the 2013 value should remain at $153,000, and it certified the Surettes’ appeal to the Board of Equalization, which affirmed the decision of the Board of Assessors. The Surettes then appealed to the Superior Court of Henry County, but the Board of Assessors moved to dismiss based on the 2011 consent order and judgment. The superior court granted the motion “due to Plaintiffs’ prior stipulation of value entered in [the earlier consent order].” The Surettes appeal the dismissal of their appeal. We affirm.

“On appeal, we review a trial court’s decision to grant or deny a motion to dismiss de novo.” Liberty County School Dist. v. Halliburton, 328 Ga. App. 422, 423 (762 SE2d 138) (2014) (citation omitted). “In reviewing the grant of a motion to dismiss, an appellate court must construe the pleadings in the light most favorable to the appellant with all doubts resolved in the appellant’s favor.” Ewing v. City of Atlanta, 281 Ga. 652, 653 (2) (642 SE2d 100) (2007) (punctuation and footnotes omitted).

1. The Surettes obviously agreed in a consent order that the value of the property for 2011, 2012, and 2013 would be $153,000. Without an exemption or exception to that agreement, the Surettes are bound to what they agreed to.

Parties to stipulations and agreements entered into in the course of judicial proceedings are estopped from taking positions inconsistent therewith, and no litigant will be heard to complain unless it be made plainly to appear that the consent of the complaining party was obtained by fraud or mistake.

Wright v. Stuart, 229 Ga. App. 50, 51 (1) (494 SE2d 212) (1997) (citation and punctuation omitted).

2. The Surettes argued below and argue on appeal that the consent order was obtained in part by fraud because counsel for the appellee told them that they could appeal in the years following the 2011 tax year if their property lost significant value. The Surettes, however, did not introduce any admissible evidence to support this assertion in response to the motion to dismiss. Moreover, the terms of the consent judgment and the meaning of OCGA § 48-5-299 (c) completely control their right to appeal the assessed value of their property for tax years 2012 and 2013. As for the consent order, its meaning is not vague or uncertain. As for the statute at issue, the Surettes are charged with notice of the law of this state. Ga. State Licensing Bd. for Residential & Gen. Contractors v. Allen, 286 Ga. 811, 817 (2) (692 SE2d 343) (2010) (“OCGA § 1-3-6 provides that: ‘After they take effect, the laws of this state are obligatory upon all the inhabitants thereof. Ignorance of the law excuses no one.’ Thus, . . . the plaintiffs were charged with notice of the . . . law.”) (citation omitted).

3. In their remaining argument, the Surettes contend they are entitled to challenge the 2013 value of their property because the 2011 consent order states that it is “subject to” OCGA § 48-5-299 (c), which provides that resolution of a tax appeal for one year establishes the value of the relevant property for the following two years except under certain circumstances, including the filing of a “return” by the taxpayer at a different value in one of the two following years:

Real property, the value of which was established by an appeal in any year, that has not been returned by the taxpayer at a different value during the next two successive years, may not be changed by the board of tax assessors during such two years for the sole purpose of changing the valuation established or decision rendered in an appeal to the board of equalization or superior court. . . .

OCGA § 48-5-299 (c). The Surettes argue that they in fact filed a return at a different value for the tax year 2013 by appealing the valuation of their property for that year. But, as explained below, the Surettes did not file a return for 2013 and therefore cannot take advantage of the cited statute.

When interpreting relevant statutes, we look to the plain meaning of the statutes; “[wjhere the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden.” Cullum v. Chatham County Bd. of Tax Assessors, 243 Ga. App. 865, 866 (534 SE2d 535) (2000) (citation and punctuation omitted).

Ad valorem tax returns must be filed between January 1 and April 1 of each year. See OCGA §§ 48-5-18 (“Each tax commissioner and tax receiver shall open his or her books for the return of real or personal property ad valorem taxes on January 1 and shall close those books on April 1 of each year.”); 48-5-103 (“It shall be the duty of the tax receiver to ... [r]eceive all tax returns within the time and in the manner prescribed by law”). Also, such returns must “contain or be verified by” a specific “written declaration.” OCGA § 48-5-19 (a). And “returns must state the taxable property’s fair market value. See OCGA § 48-5-6.” Intl. Auto Processing v. Glynn County, 287 Ga. App. 431, 433 (1) (651 SE2d 535) (2007). Tax assessment appeals, however, are a separate process from filing a return. See OCGA § 48-5-306; Ga. Comp. R. & Regs. r. 560-11-10-.09. And appeals must be filed within 45 days from the date of the mailing of tax assessment notice by the county board of tax assessors. See OCGA §§ 48-5-311 (e) (2) (A); 48-5-306.

The Surettes contend that their appeal of the 2013 assessment constitutes a “return” for the 2013 tax year. But the Surettes filed their appeal on May 3, 2013, outside of the time required to file returns; they did not include the declaration required in a return; and their appeal did not state the fair market value of the property. It is clear from the facts and the relevant law that the Surettes filed an appeal of the county assessment, not a return, for the tax year 2013. Under Georgia law, when a taxpayer fails to file a return for one tax year, he or she shall be deemed to have returned the property for the same value as the preceding year:

Any taxpayer of any county who returned or paid taxes in the county for the preceding tax year and who fails to return his property for taxation for the current tax year as required by this chapter shall be deemed to have returned for taxation the same property as was returned or deemed to have been returned in the preceding tax year at the same valuation as the property was finally determined to be subject to taxation in the preceding year. . . .

OCGA § 48-5-20 (a) (1). See also Ga. Comp. R. & Regs. r. 560-11-10-.09 (2) (b) 2. (“[T]he appraisal staff shall deem any property owner that does not file a return by the deadline as returning for taxation the same property as was returned or deemed to have been returned in the preceding tax year at the same valuation as the property was finally determined to be subject to taxation in the preceding year

Decided June 10, 2015.

The Roberts Law Firm, John A. Roberts, for appellants.

LaTonya N. Wiley; Power-Jaugstetter, Patrick D. Jaugstetter, for appellee.

Because the Surettes did not file a return for 2013, they are deemed to have returned their property for the value from 2012, which was the same value from 2011, i.e., $153,000. Thus, the Surettes did not trigger the exception found in OCGA § 48-5-299 (c) that might have allowed them to contest the assessed value of their property for the 2013 tax year despite having entered into the consent order two years earlier. And given that the Surettes agreed in the 2011 consent order that the fair market value of their property for January 1, 2013 would be $153,000, they are thereby bound to that amount for the purposes of an appeal of the county assessment for that tax year. It follows that the trial court properly granted the Board’s motion to dismiss.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       The declaration is set forth in the statute as follows:
      “I do solemnly swear that I have carefully read (or have heard read) and have duly considered the questions propounded in the foregoing tax list, and that the value placed by me on the property returned, as shown by the list, is the true market value thereof; and I further swear that I returned, for the purpose of being taxed thereon, every species of property that I own in my own right or have control of either as agent, executor, administrator, or otherwise; and that in making this return, for the purpose of being taxed thereon, I have not attempted either by transferring my property to another or by any other means to evade the laws governing taxation in this state. I do further swear that in making this return I have done so by estimating the true worth and value of every species of property contained therein.”


author: DOYLE, Presiding Judge.

text:
    A15A0242.
    FROST v. THE STATE.
    (773 SE2d 422)
   DOYLE, Presiding Judge.

Jeffrey James Frost was convicted of possessing cocaine, possessing less than one ounce of marijuana, and obstruction of a law enforcement officer. He appeals, arguing that the trial court erred by denying his motion to suppress. Because Frost waived his right to contest the admissibility of the evidence, we affirm.

Frost was arrested and charged with possessing cocaine, possessing marijuana, and obstructing a law enforcement officer. Thereafter, Frost filed a motion to suppress the drugs found on him during a search incident to his arrest for obstruction. The trial court conducted a hearing, and at the conclusion of the evidence and argument, took a brief recess to read case law submitted by the parties. The judge then returned to the courtroom and advised the parties that he wanted to conduct additional research, and he released the parties and the jurors until the following morning, explaining that he would contact the lawyers with a ruling later that afternoon.

Decided June 10, 2015.

Emily A. Harris, for appellant.

The following day, the trial court asked for an announcement from the parties, stating that the “case [had been] suspended after there was a change in position by... Frost.” Defense counsel advised that “Frost wishes to proceed with a stipulated bench trial as to the facts. He will also stipulate to the disposition recommended by the prosecution.” After hearing a brief synopsis of the evidence, including the results of testing of the drugs by the police and the Georgia Bureau of Investigation, defense counsel responded, “That’s correct, Judge.” At no point did the parties or the trial court refer to a ruling on Frost’s motion to suppress, and the record does not contain an order ruling on the motion.

The trial court found Frost guilty of the charged offenses based upon the stipulated facts and then sentenced Frost to three years in prison followed by two years on probation. At the same hearing, the trial court accepted Frost’s guilty plea on two probation revocations based on the charges in the instant case and sentenced him to serve three years, concurrent with the sentence in this case.

Frost filed a notice of appeal from his judgment of conviction, asking the clerk of court to omit nothing from the record. In a single enumeration on appeal, Frost argues that “[t]he trial court erred [by] denying [his] motion to suppress.” He has, however, waived this argument.

Although the record on appeal contains the timely filed motion to suppress as well as the transcript of the hearing on the motion, the record contains neither a ruling on the motion nor an objection to admission of the evidence during the stipulated bench trial. “In the absence of a ruling on the pretrial motion and of an objection when the evidence was offered at trial, [Frost] waived his right to contest the admissibility of the evidence on appeal.”

Judgment affirmed.

Phipps, C. J., and Boggs, J., concur.

James L. Wright III, District Attorney, Arkesia S. Jenkins, Assistant District Attorney, for appellee.

       OCGA § 16-13-30 (b).

       OCGA §§ 16-13-30 (j); 16-13-2 (b).

       OCGA § 16-10-24 (a).

         It is not clear from the record whether or not the trial court was referring to a jury specifically selected for this case.

       (Punctuation omitted.) Young v. State, 294 Ga. 780, 782 (2) (755 SE2d 800) (2014), quoting Castillo v. State, 281 Ga. 579, 581 (2) (642 SE2d 8) (2007).


text:
    A15A0620.
    THE STATE v. LUCAS.
    (773 SE2d 419)
   Branch, Judge.

The State appeals the trial court’s grant of a motion to suppress evidence seized in a search incident to arrest. For the reasons stated below, we reverse.

The record shows that officers stopped Datavious Demon Lucas for speeding, learned that Lucas had an outstanding warrant for his arrest, arrested Lucas, and discovered contraband during the search incident to arrest. Lucas was charged with possession of a controlled substance (Alprazolam), possession of less than an ounce of marijuana, and speeding. Lucas moved to suppress the evidence obtained in the search, the trial court granted the motion, and the State appeals that decision. In the trial court, Lucas did not challenge the validity of the stop or that a search was authorized incident to an arrest. Rather, he argued that his arrest was illegal because it was based on an invalid arrest warrant, which was allegedly issued for his fraternal twin brother Datravious Deon Lucas, and that the State never produced any warrant for the defendant during discovery or at the hearing on the motion to suppress.

When a defendant moves to suppress evidence, “the burden of proving that the search and seizure were lawful shall be on the state.” OCGA § 17-5-30 (b). When the appellate courts review a trial court’s decision on a motion to suppress evidence, “the trial court’s findings on disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed facts is subject to de novo review.” Barrett v. State, 289 Ga. 197, 200 (1) (709 SE2d 816) (2011) (citation omitted).

Here, in its order granting the motion to suppress, the trial court found the following facts:

On July 3, 2013, City of Lilburn Police Officer Cody Belcher ... observed Officer Bowles stop a vehicle for speeding inside the city limits of Lilburn; Defendant was the driver. Officer Bowles asked Defendant for his driver’s license, but he was unable to produce it. Instead, Defendant gave the officer his name and date of birth. Officer Bowles ran the information on [the Georgia Crime Information Center (GCIC)] and learned that Defendant had an outstanding warrant for his arrest. Defendant stated that the warrant was actually for his twin brother. Officer Bowles then called Gwinnett County Probation to verify the information, and a probation officer advised that Defendant had a tattoo of a pit bull on his right shoulder. Upon seeing the confirmatory tattoo on Defendant’s shoulder, the officer placed Defendant in handcuffs and told him to stand by the car.
A police unit later arrived with a rapid identification [device], which takes an image of a person’s fingerprint and determines whether the person has any outstanding warrants. Upon scanning Defendant’s fingers, the test confirmed an outstanding warrant for the name Defendant provided and produced a photograph of Defendant, which matched Defendant’s appearance. Consequently, the officers arrested Defendant, and a search incident to his arrest revealed the subject contraband.

The court also noted that the State did not produce an arrest warrant for Lucas either in discovery or in response to the motion to suppress.

Based on these factual findings, the trial court concluded as a matter of law that “the State’s failure to produce the arrest warrant during the motion to suppress hearing is a fatal defect.” The court therefore concluded that the State had failed to sustain its burden of proving the lawfulness of the arrest that led to the discovery of contraband. The court added that “[t]he fact that the officer may have acted properly at the time of the arrest does not obviate the State’s burden of producing sufficient evidence to prove the very existence of the arrest warrant.”

1. The State argues that the trial court erred because Lucas’s motion to suppress was not timely filed. But the State did not raise this argument below, and it therefore is waived. See Bowden v. State, 304 Ga. App. 896, 898, n. 1 (698 SE2d 372) (2010) (arguments not raised by the State in the trial court will not be considered for the first time on appeal); State v. Evans, 187 Ga. App. 649, 651 (2) (371 SE2d 432) (1988), overruled on other grounds, State v. Smith, 268 Ga. 75 (485 SE2d 491) (1997).

2. The State does not contend that the trial court clearly erred regarding the findings of fact. And our review of the testimony at the hearing on the motion to suppress shows that the trial court’s findings were not clearly erroneous.

3. The next question is whether the officers were authorized to arrest Lucas and therefore authorized to search him incident to his arrest.

As the trial court noted, no evidence was presented to show that Lucas was arrested pursuant to a warrant; thus, his arrest and subsequent search were not authorized by a valid arrest warrant. Harvey v. State, 266 Ga. 671, 672 (469 SE2d 176) (1996) (because bench warrant had been recalled before suspect was arrested, suspect was not lawfully arrested pursuant to the bench warrant itself). “However, the validity of an arrest is not necessarily dependent upon the existence of a valid arrest warrant because if the person detained is outside of his home and probable cause to arrest exists at the time of detention, a warrant is not required.” Id. (citation omitted). Our Supreme Court has held that probable cause to arrest arises once an arresting officer learns of the existence of an arrest warrant and that “[w]hether or not the information about the warrant later prove[s] incorrect or invalid is immaterial.” Buchanan v. State, 259 Ga. App. 272, 275 (576 SE2d 556) (2002), citing Harvey, 266 Ga. at 672-673. In Harvey, the Supreme Court upheld an arrest even though a bench warrant was no longer valid because prior to the arrest, the officer had learned from a computer check that there was a bench warrant for Harvey and had confirmed through his dispatcher that the warrant was still outstanding and valid. Harvey, 266 Ga. at 671. The Supreme Court held that probable cause, which is based on the facts and circumstances known to the arresting officer, included the officer’s knowledge that a valid bench warrant had been issued for Harvey’s arrest, and that information obtained from the Georgia and National Crime Information Centers was reliable enough to establish probable cause for arrest. Id. at 673. See also Buchanan, 259 Ga. App. at 273 (probable cause to arrest existed where officer arrested Buchanan based on a state computer check that revealed an outstanding warrant for his arrest regardless of whether the warrant later proved to be incorrect or invalid).

Similarly, here, the officers learned from the GCIC that Lucas had an outstanding warrant for his arrest; verified through a probation officer Lucas’s identity based on a tattoo; and verified through a fingerprint rapid identification device that Lucas was the subject of the warrant. This information provided a reliable basis for a determination of probable cause to arrest, and the trial court erred by concluding that the failure of the State to produce a valid arrest warrant invalidated the arrest. See, e.g., State v. Edwards, 307 Ga. App. 267, 273 (1) (704 SE2d 816) (2010) (physical precedent only) (suppression reversed because dispatcher’s statement to officer that there was an outstanding arrest warrant provided the probable cause necessary to arrest).

Decided June 10, 2015.

Daniel J. Porter, District Attorney, John A. Warr, Karen M. West, Assistant District Attorneys, for appellant.

William C. Rhodes, for appellee.

Judgment reversed.

Andrews, P. J., and Miller, J., concur.

       “When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within the person’s immediate presence” for certain specified purposes. OCGA § 17-5-1 (a).

       The Supreme Court distinguished State v. Stringer, 258 Ga. 605 (372 SE2d 426) (1988), upon which Lucas relies: “The officer in that case obtained no reliable information from the NCIC or any other source that the bench warrant was still valid and, as previously noted, the State stipulated that probable cause for the arrest did not exist.” Harvey, 266 Ga. at 673-674.


text:
    A15A0099.
    LEWIS v. THE STATE.
    (773 SE2d 423)
   DOYLE, Presiding Judge.

Following a bench trial, Richard Lewis was convicted of possession of less than one ounce of marijuana and possession of a drug-related object. He now appeals from the denial of his motion for new trial, contending that the trial court erred by denying his motion to suppress evidence obtained during a traffic stop. Specifically, Lewis argues that the arresting officer impermissibly prolonged the traffic stop before conducting a free-air sniff search with a trained police narcotics dog and obtaining reasonable suspicion to conduct a non-consensual search of his vehicle. For the reasons that follow, we affirm.

[There are] three fundamental principles which must be followed when conducting an appellate review of a trial court’s ruling on a motion to suppress. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. These principles apply equally whether the trial court ruled in favor of the State or the defendant.

To the extent that “the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court’s application of the law to the undisputed facts.”

The evidence in this case includes a video recording of the traffic stop as well as testimony from the officers. Viewed in the light most favorable to the trial court’s findings, the evidence shows that in July 2012, Officer Jerry Jackson was on patrol with passenger Officer John Cash in a marked police cruiser on an interstate when Jackson observed a recreational vehicle (“RV”) towing a trailer cross the white line on the right side of the roadway. As Jackson followed the RV, he observed it cross the white line two separate times, “almost taking out a construction barrel at one point.” Based on the RV’s erratic driving, Jackson initiated a traffic stop.

As Jackson approached the RV, the driver, Lewis, placed his empty hands out the driver’s window. Jackson spoke to Lewis through the passenger door, due to the heavy highway traffic, and Lewis explained that he had been checking a voice mail on his cell phone, which caused him to weave out of his lane. Jackson requested Lewis’s driver’s license, which Lewis provided, and asked Lewis for the RV’s registration. Lewis explained that he would have to look for it somewhere inside the RV, and Jackson asked Lewis if he could come inside with him while Lewis looked for the paperwork; Lewis declined. The two officers waited outside, while Lewis located the paperwork. At the officers’ request, Lewis then joined the officers outside the RV and provided the officers with the registration, and Jackson explained that he was going to write Lewis a warning for failure to maintain his lane. Jackson requested consent to pat down Lewis before he wrote up the warning, which consent Lewis gave, and the pat-down revealed no weapons or contraband.

After informing Lewis that he would receive a warning, Jackson requested consent to search the RV, which Lewis denied. Jackson then immediately gave the warning slip to Cash to continue filling out while Jackson retrieved his narcotics dog out of the cruiser. At this point, the written warning had not been completed, and police dispatch had not returned its check of Lewis’s license information, which Jackson had requested earlier via radio. As those processes continued, Jackson conducted a free-air search of the RV with the dog, which “alerted” on the trailer and the passenger door of the RV, indicating that he had detected an odor of narcotics. Jackson returned the dog to the cruiser and explained to Lewis that he would be searching the RV. At that point, Lewis confessed that he had a small amount of marijuana under the front seat and a pistol because he carried large amounts of cash from his antler carving business. A search of the RV revealed a small quantity of marijuana under the front seat and in two other locations in the RV, as well as a small smoking pipe. No contraband was found in the trailer.

Based on the contraband found in the RV, Lewis was arrested and charged with possession of the marijuana and the smoking pipe. He moved to suppress the evidence obtained during the search, and the trial court held a hearing. Based on the evidence at the hearing, the trial court found that the dog’s free-air search was conducted during the process of writing the warning and checking Lewis’s driver’s license information — all of which took place within eight minutes of the time. Jackson activated his blue lights to initiate the traffic stop. Based on these findings, the court concluded that the traffic stop was not impermissibly prolonged, and the search of the RV was authorized by the suspicion aroused by the trained narcotics dog’s behavior.

Thereafter, the court found Lewis guilty in a bench trial, and Lewis now appeals the denial of his motion for new trial, challenging the denial of his motion to suppress.

1. Lewis argues that the trial court erred by denying his motion to suppress because the officers unreasonably prolonged the traffic stop prior to executing the free-air search with the narcotics dog. We disagree.

Lewis does not contest the fact that the initial traffic stop was justified by the officer’s observation that Lewis was failing to maintain his lane, which is a traffic violation. As recently explained by the United States Supreme Court in Rodriguez v. United States,

[a] seizure for a traffic violation justifies a police investigation of that violation. A relatively brief encounter, a routine traffic stop is more analogous to a so-called “Terry[ ] stop” than to a formal arrest. Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s “mission” — to address the traffic violation that warranted the stop, and attend to related safety concerns. Because addressing the infraction is the purpose of the stop, it may last no longer than is necessary to effectuate that purpose. Authority for the seizure thus ends when tasks tied to the traffic infraction are — or reasonably should have been — completed.
... [A] traffic stop can become unlawful if it is prolonged beyond the time reasonably required to complete the “mission” of issuing a warning ticket. . . . The seizure remains lawful only so long as unrelated inquiries do not measurably extend the duration of the stop. An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop. But ... he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.
Beyond determining whether to issue a traffic ticket, an officer’s mission includes ordinary inquiries incident to the traffic stop. Typically such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.
A dog sniff, by contrast, is a measure aimed at detecting evidence of ordinary criminal wrongdoing. [Thus,] a dog sniff, unlike the routine measures just mentioned, is not an ordinary incident of a traffic stop. Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission.

Here, the record shows that the dog sniff did not unreasonably prolong the traffic stop because it was conducted before completion of the traffic stop, and it did not hinder the officers’ timely completion of the mission of the traffic stop. The dog sniff was initiated by one officer while a second officer finished filling out the written warning and while the officers waited for dispatch to return the check on Lewis’s driver’s license information. The dog sniff was initiated within six minutes of the moment the officers first made contact with Lewis on the roadside, and it was completed fewer than ninety seconds later. The license check was an “ordinary inquir[y] incident to the traffic stop,” and it “serve[d] the same objective as enforcement of the traffic code.” Consistent with the holding in Rodriguez, “our law is . . . clear that it is permissible to conduct an open air search around a vehicle while a traffic stop is still in progress so long as the stop has not been unreasonably prolonged for the purpose of conducting the search.” Based on the evidence that the dog sniff occurred during the ordinary course of the traffic stop and did not unreasonably prolong the process of the traffic stop, the trial court did not err by finding it permissible. And in light of the behavior of the trained narcotics dog during his free-air sniff, the officers’ search of the RV was authorized.

2. Lewis also argues that the trial court clearly erred by relying on allegedly false testimony by Jackson during the suppression hearing when the video recording of the traffic stop was proffered for admission by the State. Lewis points out that the officer initially testified that he had last seen the video, which is one hour and forty-four minutes in total length, earlier that morning at “nine forty-five, ten o’clock.” Based on the officer’s appearance in court, Lewis argues that it was physically impossible for the officer to have seen the entire video that morning at that time. Therefore, he argues, the officer’s testimony was false, and the trial court clearly erred by relying on it elsewhere when the officer described the traffic stop.

Decided June 11, 2015.

The Cohen Law Firm, Andy M. Cohen, for appellant.

Jessica K. Moss, Solicitor-General, Kristen A. Roch, Assistant Solicitor-General, for appellee.

Nevertheless, this argument ignores the fact that the material portion of the video — from the time the officer observed Lewis swerving to the time Lewis was arrested — is less than 19 minutes long. Therefore, the officer could have truthfully answered that he last saw the portion of video relevant to the suppression hearing that morning, and when given the opportunity, he clarified his testimony that he had not watched the entire video that morning. In light of this record, there was no clear error by the trial court in relying on the officer’s later description of the traffic stop, and the trial court’s findings are consistent with the video of the traffic stop, which we review de novo. Accordingly, this enumeration is without merit.

Judgment affirmed.

Phipps, C. J., and Boggs, J., concur.

       OCGA §§ 16-13-2 (b); 16-13-30 (j) (1).

       OCGA § 16-13-32.2 (a).

       (Citations and punctuation omitted.) Brown v. State, 293 Ga. 787, 802-803 (3) (b) (2) (750 SE2d 148) (2013), quoting Miller v. State, 288 Ga. 286, 286-287 (702 SE2d 888) (2010).

        Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012), citing Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

       See OCGA § 40-6-48 (X); Camacho v. State, 292 Ga. App. 120, 122 (663 SE2d 364) (2008) (“[n umerous cases have held that weaving out of one’s lane justifies a stop”).

        Rodriguez v. United States,_U. S._(135 SCt 1609, 191 LE2d 492) (2015).

        Terry v. Ohio, 392 U. S. 1 (88 SCt 1868, 20 LE2d 889) (1968).

       (Citations and punctuation omitted.) Rodriguez,_U. S. at_(II) (135 SCt at 1614).

       (Punctuation omitted.) 135 SCt at 1615. See also St. Fleur v. State, 296 Ga. App. 849, 851-852 (1) (676 SE2d 243) (2009) (“[A] law enforcement officer conducting a routine traffic stop may request and examine a driver’s license and check for outstanding warrants [;] and questioning the driver or engaging in small talk while verifying the items mentioned above is not a seizure unless the detention is prolonged by the questioning.”) (punctuation and footnote omitted).

       (Punctuation omitted.) St. Fleur, 296 Ga. App. at 852 (1).

       See id. at 853 (2), citing Davidson v. State, 257 Ga. App. 260, 264 (1) (570 SE2d 698) (2002).

       The transcript shows that after Lewis objected to the officer’s ability to authenticate the video, the trial court recessed the proceedings for lunch and allowed the officer time to view the entire video, and the officer did so.

       See State v. Mohammed, 304 Ga. App. 230, 231-232 (695 SE2d 721) (2010) (facts plainly discernible from a video are reviewed de novo).


author: BARNES, Presiding Judge.

text:
    A15A0134.
    POWERS v. THE STATE.
    (773 SE2d 428)
   BARNES, Presiding Judge.

Roscoe Powers, Jr., was charged with committing sexual battery in violation of OCGA § 16-6-22.1. With the assistance of an attorney, Powers pled guilty to sexual battery in March 2005 and was sentenced to twelve months, six of which were to be served in confinement. More than eight years later, while incarcerated in federal prison for bank robbery, Powers filed a “Motion to Vacate Void Judgment” arguing that his guilty plea to sexual battery was void under OCGA § 17-9-4 because it was not made freely and voluntarily. Powers also argued that the sentencing judge engaged in judicial misconduct under OCGA § 17-8-57 by making improper comments on the record.

The trial court denied the motion, first noting that although its jurisdiction to modify or vacate a sentence was limited, it had jurisdiction to vacate a void sentence at any time. The court further noted that a sentence is void if the court imposes punishment that the law does not allow, but that Powers was actually challenging his underlying guilty plea. The trial court denied the motion, concluding that the issues Powers raised could not be considered in a “motion to void judgment” and were not valid under any other theory.

On appeal, Powers again argues that his sentence is void because of errors committed during the entry of his guilty plea, but the trial court lacked jurisdiction to consider these challenges.

When a court has imposed a sentence of imprisonment, its jurisdiction to modify or vacate that sentence is limited. Under OCGA § 17-10-1 (f), the sentencing court generally may modify or vacate a sentence for only one year following its imposition unless the sentence is void. However, the trial court has jurisdiction to vacate a void sentence at any time. Burg v. State, 297 Ga. App. 118 (676 SE2d 465) (2009). Here, Powers filed his motion to vacate his sentence nearly eight years after he was sentenced, and therefore the trial court had jurisdiction to consider his motion only to the extent that it presented a cognizable claim that the sentence was void, von Thomas v. State, 293 Ga. 569, 571 (2) (748 SE2d 446) (2013). “A sentence is void if the court imposes punishment that the law does not allow.” (Citation and punctuation omitted.) Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004).

Despite the title of Powers’ motion, however, he presented no cognizable claim that his sentence was unlawful, but rather sought to challenge the conviction entered upon his plea of guilty. “[A] trial court’s authority to grant a motion to withdraw a guilty plea ends after the expiration of the term of court during which the plea was entered.” (Citation and punctuation omitted.) Williams v. State, 331 Ga. App. 46, 48 (2) (769 SE2d 760) (2015). Having “failed to file a timely motion to withdraw his guilty plea, [Powers’] only available means to challenge the judgment of conviction is through habeas corpus proceedings.” Grady v. State, 311 Ga. App. 620, 621 (716 SE2d 747) (2011).

[W]e have held in several cases that a defendant cannot assert a claim that his conviction was unlawful in an untimely motion to vacate his sentence simply by dressing it up as a claim that his sentence was void. Instead, a claim that a conviction was unlawful must be asserted by a motion for new trial, direct appeal from the judgment of conviction, extraordinary motion for new trial, motion in arrest of judgment, or petition for the writ of habeas corpus. Motions to vacate a void sentence generally are limited to claims that — even assuming the existence and validity of the conviction for which the sentence was imposed • — • the law does not authorize that sentence, most typically because it exceeds the most severe punishment for which the applicable penal statute provides.

Decided June 11, 2015.

Roscoe Powers, Jr., pro se.

Carroll R. Chisholm, Jr., Solicitor-General, for appellee.

(Citations and punctuation omitted.) von Thomas, 293 Ga. at 572 (2).

Because the trial court lacked jurisdiction to consider the merits of Powers’ motion, its order denying the motion is vacated and the case is remanded with direction to dismiss the motion.

Judgment vacated and case remanded with direction.

Ray and McMillian, JJ., concur in judgment only.


author: McMillian, Judge.

text:
    A15A0712.
    FULTON COUNTY, GEORGIA v. ANDREWS et al.
    (773 SE2d 432)
   McMillian, Judge.

Appellees are current or former attorneys employed with the Office of the Public Defender, Atlanta Judicial Circuit (the “Public Defenders”) who filed suit against Fulton County, Georgia (the “County”), alleging breach of contract and violation of county laws. In their petition, the Public Defenders assert that, pursuant to the Civil Service Act of 1982 (the “Civil Service Act”), they are entitled to the same compensation given to attorneys assigned to the Office of the County Attorney (the “County Attorneys”). They allege, however, that the County increased the salary of the County Attorneys, creating an unlawful pay disparity between the two groups of attorneys. Following discovery, both parties filed motions for summary judgment. The trial court denied the County’s motion and granted the Public Defenders’ motion. The County appeals, asserting that the trial court erred in concluding that (1) Fulton County personnel regulations constitute the parties’ employment contract, as opposed to the “offer letters” received by the Public Defenders and (2) the County violated the personnel regulations by paying the Public Defenders less than other attorneys. Finding no error, we affirm.

“In reviewing a trial court’s ruling on a motion for summary judgment, we conduct a de novo review to determine whether the undisputed facts warrant judgment as a matter of law. OCGA § 9-11-56.” (Citation omitted.) Wright v. IC Enterprises, 330 Ga. App. 303, 303 (765 SE2d 484) (2014). And, “[t]he opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.” (Citation and punctuation omitted.) Id.

So viewed, the record shows that pursuant to a 1939 amendment to the Georgia Constitution, the General Assembly enacted a civil service merit system for Fulton County. Ga. L. 1943, p. 971. In 1982, the General Assembly passed a law revising the Fulton County civil service system, the express purpose of which was to establish

a high quality merit system of personnel administration based upon accepted merit principles and recognized methods governing the appointment, promotion, transfer, layoff, removal, discipline, and well-being of employees who are governed by this Act, and for related personnel actions associated with Fulton County employment.

Ga. L. 1982, pp. 4896-4897, § 1. Consequently, pursuant to the Civil Service Act, the County implemented a comprehensive set of “Personnel Regulations” that are vested with the “force and effect of law” to create a civil service merit system wherein the County’s Personnel Director must develop a “Position Classification Plan” for all positions “based upon similarity of duties performed and responsibilities assumed so that comparable qualifications may reasonably be required for and the same schedule of pay may be equitably applied to all positions in the same class.” PR 200-1. Relevant to the Public Defenders’ claims, PR 300-9 provides that the County’s Personnel Board and Board of Commissioners “shall establish minimum and maximum salary rates for all employees of Fulton County whose classes and positions are established on salary ranges (Classified and Unclassified).” In addition, PR 300-1 mandates that

[n]o employee shall be paid at a salary rate lower than the minimum or higher than the maximum of the salary range approved and established for the class in which currently serving, unless dictated by a [c]ounty-wide classification and compensation study which has been approved by the Personnel Board and Board of Commissioners.

In 1995, the County hired Fox Lawson, a private consulting firm, to perform a county-wide study to ensure the development of an appropriate, neutral classification and compensation system. Fox Lawson completed its study in 1997 and proposed a comprehensive pay plan that assigned each County employee to one of approximately 600 job classifications (the “Fox Lawson study”). It also proposed the equitable range of pay for each job classification, using the “Decision Band Method” ranking system (“DBM”). The Board of Commissioners adopted Fox Lawson’s proposed classification and compensation structure in June 1997. Under this structure, the County classified the Public Defenders within the same job classification and DBM pay grade as the County Attorneys. Thus, for example, entry level attorneys in both groups were classified as “606022 Attorney, Staff” and assigned a pay grade of “C42.”

As part of the compensation structure adopted by the County, “[m]arket premiums” or salary differentials (“premium pay”) could be applied to the salary rate for a particular classification when the average market compensation level, including the private sector, exceeded the County’s established salary rate by 15% or more. Beginning in 1997, the County applied premium pay raises to the County Attorneys that were substantially more than those given to other attorneys within the same classification, including the Public Defenders. Thus, a pay differential between the County Attorneys and the Public Defenders was established and carried forward year after year.

In April 2005, pursuant to a request by the Board of Commissioners, the County’s Personnel Director reviewed the County’s use of premium pay and recommended a “divestiture plan” designed to eliminate premium pay within the County’s classification and compensation system. As part of its divestiture plan, the County placed certain employees, including the County Attorneys and most positions within the Public Defender’s Office, on a new salary range called “Schedule B.” However, the salary ranges within Schedule B included the previous premium pay granted to each group of attorneys, thereby perpetuating the pay differential between the County Attorneys and the Public Defenders. In January 2012, the Public Defenders filed a grievance through the County’s civil service grievance procedure, alleging this pay disparity and seeking back pay and a prospective pay adjustment. In response, the County informed the Public Defenders that they would not be permitted to pursue their claims through the grievance process, and the Public Defenders subsequently filed their action in the Superior Court of Fulton County. In granting the Public Defenders’ motion for summary judgment, the trial court found that the County’s Personnel Regulations formed an employment contract between the County and the Public Defenders and that nothing in PR 300-9, which provides for premium pay to a classification under certain market conditions, permits the County to ignore the requirements of PR 300-1 that prohibit the County from paying its employees outside the established salary ranges without a new, county-wide classification study.

1. The County asserts that, in granting summary judgment to the Public Defenders, the trial court erred by concluding that the County’s Personnel Regulations “constitute the entire employment agreement” between the County and the Public Defenders. The County maintains that the Personnel Regulations are not specific enough to constitute an employment contract and that only the “offer letters” sent to each Public Defender set forth the terms of employment that should be enforced.

However, nowhere in its order does the trial court conclude that the Personnel Regulations make up the “entire” contract or employment agreement between the parties. Rather, the trial court correctly rejected the County’s argument that the terms of the letters supersede the Personnel Regulations, which the County maintains are “but one aspect of the parties’ employment agreement.” Under the Civil Service Act, the Personnel Regulations, including the requirement that “the same schedule of pay ... be equitably applied to all positions in the same class,” have the full force and effect of law. Ga. L. 1982, p. 4896, § 3; PR 100-1 (1). It is well established that a statute establishing a retirement plan for government employees becomes a part of an employee’s contract of employment. DeKalb County School District v. Gold, 318 Ga. App. 633, 642 (2) (734 SE2d 466) (2012) (the statute becomes part of the employment contract and is compensation for services rendered, and an amendment to the statute to reduce or eliminate employee benefits would violate our state Constitution’s impairment clause); Alverson v. Employees’ Retirement System of Ga., 272 Ga. App. 389, 391-392 (1) (b) (613 SE2d 119) (2005) (state employees were parties to a written contract established by statute in effect when they performed services and contributed toward their retirement benefits). And we see no reason why a statute establishing a merit-based compensation structure and regulations promulgated thereunder should be treated any differently than a statute establishing a retirement plan. See Clark v. State Personnel Bd., 252 Ga. 548, 550 (2) (a) (314 SE2d 658) (1984) (holding that the state Merit System Act “create [s] a constitutionally protected contract between the merit system members and the state”); Fulton County v. Lord, 323 Ga. App. 384, 389 (1) (746 SE2d 188) (2013) (finding the judicial assistants’ claim for back pay pursuant to Fulton County’s personnel regulations sounds in contract).

Moreover, pretermitting whether the “offer letters” included terms in contradiction with the Personnel Regulations, the County was without authority to override the Personnel Regulations by creating its own terms in an “offer letter” to certain of its employees. See DeClue v. City of Clayton, 246 Ga. App. 487, 491 (2) (540 SE2d 675) (2000) (“A constitutional act of the legislature has been found to be the equivalent of a contract, and the rights created thereby cannot be impaired by subsequent legislation.”). PR 100-1 (2), entitled “General Purpose,” provides:

Personnel Regulations shall be the sole and exclusive instrument governing personnel administration, personnel transactions, and procedures within Fulton County, unless otherwise mandated by law. Departmental standard operating procedures in conflict with these Personnel Regulations are not allowed; to the extent such a conflict exists, these regulations shall apply.

(Emphasis supplied.) And, as we have noted, PR 300-1 expressly mandates that “[n]o employee shall be paid at a salary rate lower than the minimum or higher than the maximum of the salary range approved and established for the class in which currently serving ” Accordingly, the County had no authority to unilaterally create a pay disparity between the County Attorneys and the Public Defenders except as outlined in the Personnel Regulations, and “a contract which is void because it is made without authority cannot be ratified.” Clark v. Head, 272 Ga. 104, 106 (3) (526 SE2d 859) (2000).

We likewise reject the County’s contention that the Public Defenders cannot establish a breach of contract claim because they are relying on the County Attorneys’ contracts to which they were neither parties nor intended beneficiaries. To the contrary, the Personnel Regulations clearly establish a minimum and maximum salary rate for “all employees” and provide that “[no] employee shall be paid” outside his or her designated salary range. (Emphasis supplied.) And PR 200-1, in mandating the creation of “an appropriate Position Classification Plan for all on-range positions ... based upon similarity of duties performed and responsibilities assumed,” is designed to ensure “that comparable qualifications may reasonably be required for and the same schedule of pay may be equitably applied to all positions in the same class.” (Emphasis supplied.)

Thus, by awarding a higher percentage of premium pay to the County Attorneys, who are members of the same classification as the Public Defenders, and by perpetuating that pay disparity through the creation of Schedule B, the County has breached its contractual obligations to the Public Defenders under the Personnel Regulations. To find otherwise would completely undermine the purpose of a merit-based civil service system. See Wayne County v. Herrin, 210 Ga. App. 747, 752-753 (3) (437 SE2d 793) (1993) (“civil service systems rest on the principles of a merit system rather than (not in addition to) a spoils system”).

2. The County also asserts that the trial court erred in concluding that the County violated the Personnel Regulations. The County first claims that OCGA § 36-1-21 vests the County with authority to compensate the Public Defenders and the County Attorneys as it sees fit under “home rule.” However, OCGA § 36-1-21 is inapplicable where a civil service system is created by the General Assembly, as was the County’s. See Ferdinand v. Bd. of Commissioners of Fulton County, 281 Ga. 643, 645, n. 4 (641 SE2d 787) (2007).

Likewise misplaced is the County’s argument that requiring it to pay the Public Defenders in the same range as the County Attorneys would violate the Gratuities Clause of the Georgia Constitution, which prevents the General Assembly from granting “extra compensation to any public officer . . . after the service has been rendered.” Ga. Const. Art. Ill, Sec. VI, Par. VI (a). The County’s position is based on a false premise because the Public Defenders are not seeking “extra compensation.” They are seeking the compensation they were legally entitled to under the Personnel Regulations in force at the time they performed their services. See City of Brookhaven v. City of Chamblee, 329 Ga. App. 346, 353 (4) (765 SE2d 33) (2014) (remand unnecessary for consideration of constitutional issue because argument was based on a false premise).

And finally, the County’s assertion that its decision to compensate the Public Defenders “differently from the County Attorneys is not unusual or unreasonable, as purportedly evidenced by the different salaries paid to judges in Georgia, has no merit. Unlike the varying salaries for different judicial offices, which are expressly determined by statute, the Public Defenders and County Attorneys are within the same employment classification under the County’s civil service system as implemented by the Personnel Regulations. And pursuant to its own regulations, both groups of attorneys are to be compensated within the same salary range.

Therefore, in order to pay the County Attorneys outside the maximum salary range established for their classification, the County is only authorized to do so under PR 300-1 if it is “dictated by a [c]ounty-wide classification and compensation study which has been approved by the Personnel Board and Board of Commissioners.” The County claims to have conducted a “salary survey” in 2005 to assess the County’s use of premium pay and which led to the creation of Schedule B, but there is no evidence in the record that the County ever conducted a full county-wide classification and compensation study following the 1997 Fox Lawson study.

Instead, in 2005 as part of its premium pay divestiture plan, the County merely surveyed 56 jurisdictions and private entities, and only with respect to the 35 job classifications that were then receiving premium pay. This survey resulted in new titles assigned to the positions included in Schedule B and the separation of the County Attorneys and the Public Defenders. For example, the previous position of “Attorney, Managing” split and became “B-Attorney, Managing (CountyAttorney)” and “B-Attorney, Managing (Public Defender).” However, Paris Brown, the County’s assistant Personnel Director at the time, admitted that this change was not a reclassification, but instead simply a “title change.” He also confirmed that the title change did not mean that the complexity or difficulty of the work performed had changed. And, as the trial court noted, the Personnel Regulations requirement that salary ranges be based on a countywide classification and compensation study “demands an internal comparison of duties and responsibilities among County employees across department lines and a comparable salary allocation for comparable skills and responsibilities.” Thus, if the County desired to apply a market differential to its employees’ salaries, as permitted by PR 300-9, the differential must be applied to the classification as a whole, not to certain departments within the classification.

The County may be correct that “sufficient difference exists among the functions, focus and budgets of its various [legal] departments to warrant different pay scales for attorneys in those departments.” And the County is certainly permitted to amend its classification and compensation plan. However, in doing so, it must follow the requirements of the Personnel Regulations. It did not do so here, and the trial court did not err in granting summary judgment to the Public Defenders. See, e.g., Gold, 318 Ga. App. at 642 (2); Duggan v. Leslie, 281 Ga. App. 894, 896 (637 SE2d 428) (2006) (finding county board of commissioners chose an invalid method when it attempted to pass a resolution changing its personnel manual).

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

Decided June 11, 2015.

R. David Ware, Kaye W. Burwell, Lanna R. Hill, Diana L. Freeman, for appellant.

Parks, Chesin & Walbert, A. Lee Parks, Andrew Y Coffman, M. Travis Foust, for appellees.

       Ga. L. 1982, p. 4896, § 3; PR 100-1 (1).

       The DBM determination is based on several criteria, including the difficulty of work performed by members of the classification, the complexity of the work performed, and the supervisory responsibilities and decision-making authority of the classification members.

       More senior attorneys in both groups were progressively classified as “606024 Attorney, Senior” with a “C43” pay grade, “606026 Attorney, Supervising” with a “C51” pay grade, and “606027 Attorney, Managing” with a “D63” pay grade.

       In pertinent part, PR 300-9 provides: “Market premiums or differentials may be applied to the salary rates for certain classifications when the market compensation level exceeds the established salary rate by a minimum of fifteen percent (15%).”

       These premium pay raises ranged from a 36% supplement for staff attorneys to a 70% supplement for supervising attorneys.

       The Public Defenders were awarded premium pay ranging from 0% for staff attorneys to 29% for managing attorneys. The County’s judicial assistants, also within the same classification, were awarded no premium pay.

       Because the staff attorneys with the Public Defender’s Office had not been receiving any premium pay, they were not included on Schedule B.

       This was done despite the Personnel Director’s determination that the market disparity for the position of staff attorney with the County Attorneys had fallen to 2%, well below the 15% threshold for premium pay designation.

       PR 200-1.

       The trial court found that these letters were simply “confirmations that employment has been accepted.” And the record shows that virtually each letter opens with “Welcome to the Office of the Public Defender. Pursuant to your acceptance of Mr. Pitts’ offer of employment... I am writing to confirm your start date . .. and to advise you of the following.” The letter then informs the employee of his or her starting salary and the salary range for the position. For example, staff attorneys were notified that their salary range was “C42,” thereby specifically referring to the classification and compensation system established pursuant to the same Personnel Regulations that expressly prohibit compensating members of a classification below or above their salary range.

       OCGA § 36-1-21 (a) provides: “The governing authority of any county is authorized to provide by ordinance or resolution for the creation of a civil service system for employees of the county, other than elected officials or persons appointed to positions for specified terms.” And OCGA § 36-1-21 (c) provides: “A civil service system created pursuant to the authority of this Code section shall he administered in such manner and pursuant to such rules and regulations as may be provided for by resolution or ordinance of the county governing authority which created the system.”

       See, e.g., OCGA §§ 45-7-4; 47-8-62; 15-10-23.

       Again, staff attorneys with the Public Defender’s office were not included because they were not receiving any premium pay.

       The two groups of attorneys originally retained identical title codes, with the managing attorneys both still coded as “606027.” The title codes for the two groups of attorneys later changed in 2007, but Robert Brandes, the County’s Personnel Director at the time, again characterized this change as simply a change in title code, not a reclassification.


author: Miller, Judge.

text:
    A15A0722.
    ARRINGTON v. THE STATE.
    (773 SE2d 430)
   Miller, Judge.

Cedric Arrington, who pled guilty to armed robbery (OCGA § 16-8-41 (a)), appeals pro se from the trial court’s order denying his motion for an out-of-time appeal. As best as we can discern, Arrington contends that he did not knowingly and voluntarily plead guilty because neither the trial court nor trial counsel informed him of his constitutional rights, and trial counsel was ineffective for failing to advise him of his right to file a direct appeal. For the reasons that follow, we affirm.

We review a trial court’s denial of a motion for an out-of-time direct appeal for an abuse of discretion. Belcher v. State, 304 Ga. App. 645, 646 (1) (697 SE2d 300) (2010).

The record shows that Arrington was indicted on a single count of armed robbery. Thereafter, the State filed a “Notice of Intent to Present Matters in Aggravation of Sentencing,” in which the State announced that if Arrington were convicted, it would introduce his prior felony convictions that would require him to serve the maximum sentence for armed robbery.

On January 22, 2009, Arrington entered into a negotiated plea, under which he pled guilty to armed robbery. As part of his plea agreement, Arrington executed a waiver of his post-conviction rights, indicating that in exchange for the State’s agreement not to pursue enhanced penalties, Arrington agreed to never challenge his guilty plea after the sentence was entered or apply for a direct or an out-of-time appeal from his conviction and sentence. Although the waiver form provided that Arrington could raise a claim that counsel was ineffective, he indicated on the waiver form that he had been fully advised of his rights and that he was satisfied with his counsel’s representation.

At the guilty plea hearing on January 22, 2009, Arrington confirmed that he had reviewed and signed the waiver of rights form, he was satisfied with trial counsel’s representation, and no one had pressured or coerced him into pleading guilty. At the end of the hearing, the trial court accepted Arrington’s guilty plea and sentenced him to 18 years.

On February 2, 2009, Arrington filed a motion to withdraw his guilty plea, asserting that he was pressured by trial counsel into pleading guilty based on trial counsel’s advisement that the trial court would find him guilty and sentence him to life without parole. On February 10, 2009, the trial court denied Arrington’s motion to withdraw his plea, finding that his motion was filed after his sentence was orally pronounced and that, as part of his negotiated plea, Arrington had agreed not to file a motion to withdraw his guilty plea after sentencing. The trial court thereafter entered its written judgment and sentence.

In November 2009, the trial court denied Arrington’s first motion for an out-of-time appeal. This order was not appealed. Almost four years later, Arrington filed his second motion for an out-of-time appeal, which the trial court denied. Arrington filed an untimely notice of appeal, which this Court dismissed. Arrington subsequently filed his third and fourth motions for an out-of-time appeal, which were both denied by the trial court. This appeal comes from the denial of Arrington’s fourth motion.

On appeal, Arrington’s only discernible argument is that his motion for an out-of-time appeal is not barred by his waiver of post-conviction rights because trial counsel failed to advise him of his right to appeal and the waiver of rights form did not otherwise inform him of the rights he was waiving by pleading guilty. We disagree.

At any time before the trial court orally pronounces sentencing, a defendant may withdraw his guilty plea. See Surh v. State, 303 Ga. App. 380, 383 (693 SE2d 501) (2010). Once the judgment of conviction and sentence is entered on a guilty plea, however, a defendant has the right to appeal

only if the issue on appeal can be resolved by facts appearing in the record. The ability to decide the appeal based on the existing record thus becomes the deciding factor in determining the availability of an out-of-time appeal when the defendant has pled guilty.

(Citations and punctuation omitted.) Brown v. State, 290 Ga. 321 (1) (720 SE2d 617) (2012).

Moreover, it is well established that a defendant can waive his right to seek post-conviction relief as part of a negotiated plea agreement, so long as the waiver is voluntary, knowing, and intelligent. See Rush v. State, 276 Ga. 541, 542 (579 SE2d 726) (2003); Bryan v. State, 296 Ga. App. 341, 342 (674 SE2d 390) (2009). The fact that a waiver of the right to appeal is voluntary, knowing, and intelligent may be shown either by (1) a signed waiver form indicating that the defendant understood the rights he was waiving or (2) detailed questioning of the defendant by the trial court revealing that the defendant was informed of and agreed to waive his rights. See Bryan, supra, 296 Ga. App. at 342. When the record shows that the defendant understood the rights he was waiving, he will be held to his bargain. See id.

Here, in connection with his negotiated guilty plea, Arrington completed a form acknowledging and waiving his trial rights. Arrington also signed the post-conviction waiver form, indicating that he had discussed his case with trial counsel; he agreed not to file a motion to withdraw his guilty plea after the sentence was entered; and he waived post-conviction relief. Arrington testified at the guilty plea hearing that he understood the rights he was waiving by pleading guilty, and that he had reviewed the post-conviction waiver form with his trial counsel. A review of the record therefore shows that Arrington voluntarily, knowingly, and intelligently chose to waive his right to challenge his conviction after he was fully informed of his trial rights and his right to an appeal. “Having received the benefit of the [plea] agreement, [Arrington] cannot now ignore its terms and seek relief via an appeal to this Court.” Rush, supra, 276 Ga. at 542.

Moreover, although the waiver did not prohibit Arrington from filing a claim that trial counsel rendered ineffective assistance, his claim on appeal that trial counsel did not advise him of his right to appeal is without merit because he testified at the guilty plea hearing that he had reviewed his rights with his attorney and was satisfied with counsel’s representation. Where, as here, an examination of the record reveals no merit to the claimed errors, the trial court does not err in denying a request for an out-of-time appeal. Adams v. State, 285 Ga. 744 (1) (683 SE2d 586) (2009). Accordingly, we affirm.

Judgment affirmed.

Andrews, P. J., and Branch, J., concur.

Decided June 11, 2015.

Cedric D. Arrington, pro se.

George H. HartwigHI, District Attorney, Venita S. McCoy, Marie R. Banks, Assistant District Attorneys, for appellee.

       As a threshold matter, we note that Arrington’s brief is deficient because it does not contain “a succinct and accurate statement of the proceedings below and the material facts relevant to the appeal.” See Court of Appeals Rule 25 (a) (1). Additionally, although Arrington lists six enumerations of error, he has failed to follow the order of the enumeration of errors, and his argument does not even address each enumeration of error. See Court of Appeals Rule 25 (c) (1). Arrington’s decision to proceed with his appeal pro se does not excuse him from compliance with the substantive and procedural requirements of the law. See Salazar v. State, 256 Ga. App. 50, 53 (4) (567 SE2d 706) (2002). While we will nonetheless review Arrington’s claims of error to the extent we can perceive them, he will not be granted relief should we err in deciphering his nonconforming brief. See Orange v. State of Ga., 319 Ga. App. 516, 517 (1) (736 SE2d 477) (2013).


text:
    A15A0011.
    SINGLETON v. THE STATE.
    (773 SE2d 438)
   Miller, Judge.

We granted Tyraldo Singleton’s application for discretionary-review from the trial court’s order revoking his probation. On appeal, Singleton contends that the trial court erred in revoking his probated sentence for a period exceeding that authorized by OCGA § 42-8-34.1. For the reasons that follow, we reverse and remand for resentencing.

“Generally, this court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court. However, we review questions of law de novo.” (Citations and punctuation omitted.) Germany v. State, 315 Ga. App. 717, 718-719 (1) (727 SE2d 240) (2012).

The record shows that in June 2012, Singleton pled guilty to one count of sale of marijuana (OCGA § 16-13-30 (j)). The trial court sentenced Singleton to ten years, with one year to serve in confinement and the balance to be served on probation. In addition to complying with the general terms of probation, Singleton was required to pay a $2,000 fine, pay a monthly supervision fee, and submit to random drug testing.

In March 2014, the State filed a petition to revoke or modify Singleton’s probation based on allegations that he committed the offenses of misdemeanor possession of marijuana and felony obstruction of a law enforcement officer, as well as failing to pay the court-ordered fine and fees. Following a hearing, the trial court found that Singleton violated his probation and revoked the balance of his probation — eight years and seventeen days. This appeal ensued.

On appeal, Singleton contends that the trial court was not authorized to revoke the balance of his probation because there were no special conditions on his probation, and the trial court could only revoke five years of his probation based on his commission of felony obstruction. We agree that the trial court erred in revoking the balance of Singleton’s probation.

OCGA § 42-8-34.1 addresses probation revocation, and subsection (c) of the statute provides for the revocation of up to two years of probation for the violation of any general condition. When the defendant commits a felony offense, subsection (d) authorizes the trial court to revoke no more than the lesser of the balance of probation or the maximum time of the sentence authorized to be imposed for the felony offense. Subsection (e) provides for revocation of the balance of probation if the defendant is shown to have violated a special condition. OCGA § 42-8-34.1 (a) defines a “special condition” as

a condition of a probated or suspended sentence which: (1) Is expressly imposed as part of the sentence in addition to general conditions of probation and court ordered fines and fees; and (2) Is identified in writing in the sentence as a condition the violation of which authorizes the court to revoke the probation or suspension and require the defendant to serve up to the balance of the sentence in confinement.

(Emphasis supplied.) Consequently, “the substantive or essential requirements of OCGA § 42-8-34.1 (a) are that the trial court warn of the consequences of violating a special condition; that the warning be in writing; and that the warning be in the court’s sentence.” Harvey v. Meadows, 280 Ga. 166, 169-170 (3) (626 SE2d 92) (2006).

Here, Singleton’s written sentence contains only a section for general conditions of probation, of which several pertinent items are checked, such as the provision that Singleton shall not violate any laws and that he must pay court fines and fees in full. The additional terms of probation provide that Singleton is to submit to random drug testing and that he is allowed to convert his fine by performing community service. Nowhere on the sentencing form, however, is it expressly stated that any of the conditions are special conditions of probation, and the sentencing form fails to specify that a possible consequence of violating any of the probation conditions would be the revocation of the entirety of Singleton’s remaining probated sentence. See Gardner v. State, 259 Ga. App. 375, 378 (1) (577 SE2d 69) (2003) (to constitute a special condition, the sentencing document must reflect in writing that failure to successfully complete the condition authorizes the court to require the defendant to serve up to the balance of the sentence in confinement). Thus, contrary to the State’s suggestion, the trial court was not authorized to revoke the balance of Singleton’s probation due to any violation of his probation conditions. See, e.g., Bergen v. State, 300 Ga. App. 837, 838 (686 SE2d 410) (2009) (trial court erred in revoking entirety of defendant’s probation when sentencing form failed to distinguish between general and special conditions and failed to advise defendant that his entire probation could be revoked for violating a special condition).

Decided June 12, 2015.

John M. Kraft, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellee.

The State alternatively argues that even if the trial court could not revoke the entirety of Singleton’s probation due to the violation of a special condition under OCGA § 42-8-34.1 (e), the trial court was nevertheless authorized to revoke the entirety of Singleton’s probation because it was permitted to stack the sentences for the three violations — a felony obstruction offense, a misdemeanor possession of marijuana offense, and the failure to pay court-ordered fines. Notwithstanding the State’s failure to support its argument with any authority, this issue presents nothing for our review because the thin record before us does not reveal that the State raised this claim below or that the trial court ruled thereon. See Ward v. State, 299 Ga. App. 826, 827 (683 SE2d 894) (2009) (“Inasmuch as we are a court for the correction of errors, we do not consider issues which were not raised below and ruled on by the trial court.”) (footnote omitted).

Since the record before us clearly shows that the trial court was prohibited from revoking the balance of Singleton’s probation due to a violation of a special probation condition, we must remand this case for resentencing in accordance with statutory authority.

Judgment reversed and case remanded for resentencing.

Branch, J., concurs. Andrews, P. J., concurs in judgment only.