text:
    A15A2030.
    JIM TIDWELL FORD, INC. v. BASHUK et al.
    (782 SE2d 721)
   Peterson, Judge.

Jim Tidwell Ford, Inc. (“Tidwell”) filed suit against Jeffrey Alan Bashuk and his law firm Bashuk & Glickman (collectively, “Bashuk”), alleging, among other claims, that Bashuk committed malpractice in defending Tidwell in a slip-and-fall lawsuit. Tidwell appeals from a grant of summary judgment to Bashuk in the malpractice case, arguing that the trial court erred by (1) deciding that Bashuk was entitled to judgmental immunity; (2) ruling that Tidwell’s settlement of the underlying case barred its claims against Bashuk; (3) concluding that Tidwell’s breach of fiduciary claim was duplicative of the malpractice claim; and (4) finding that Tidwell’s failure to support its response to Bashuk’s motion for summary judgment with specific references to the record was a basis for granting the motion. Because the trial court correctly held that Tidwell’s settlement of the underlying suit against it barred both its malpractice claim and its breach of fiduciary duty claim, we affirm the grant of summary judgment.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

So viewed, this malpractice lawsuit stems from a personal injury suit brought against Tidwell by Charles Chase in federal court. Chase, who was 78 years old at the time of the incident that gave rise to his suit, contended that Tidwell was responsible for him falling off a platform while a customer at Tidwell’s automobile dealership. Tidwell engaged Bashuk to defend it in the lawsuit. A jury found in Chase’s favor and returned a verdict for $1,083,067.20, reduced based on the jury’s apportionment of 25 percent of the fault to Chase. Retaining another firm to handle the appeal, Tidwell filed a notice of appeal of the verdict to the United States Court of Appeals for the Eleventh Circuit. In August 2012, however, the dealership settled the case for $600,000 before briefing the appeal.

Tidwell subsequently filed this lawsuit. Tidwell claimed that Bashuk failed to obtain and properly present evidence, including expert testimony and medical records, to show that Chase’s fall was caused by a preexisting medical condition. Specifically, Tidwell complained about alleged trial preparation failures by Bashuk regarding evidence that Chase suffered from a preexisting neurological condition called peroneal neuropathy (PN), sometimes referred to in this litigation and the underlying litigation by the name of one of PN’s symptoms, “foot drop.” Tidwell contended that, due to failings by Bashuk, the judge in the underlying case ruled that Lorin Freedman, a doctor who had examined Chase at Tidwell’s behest, could not testify about Chase’s PN. Tidwell also claimed that Bashuk committed malpractice by failing to obtain some of Chase’s medical records that would have showed his PN was more severe than he acknowledged at trial.

After discovery, Bashuk moved for summary judgment, arguing among other things that the complained-of actions were tactical decisions that fell under the umbrella of judgmental immunity. The trial court granted the motion, rejecting the malpractice claims on three alternative bases. First, the trial court said that Tidwell’s “failure to specify the evidence in the record upon which it relies is fatal to its position that summary judgment should be denied.” The trial court nevertheless then considered the merits of Tidwell’s claims, concluding they must fail under the doctrine of judgmental immunity. Alternatively, the trial court said Tidwell could not show that any malpractice by Bashuk proximately caused its damages, because it settled the underlying case while it still had a viable appeal. Finally, the trial court granted summary judgment on Tidwell’s claim of breach of fiduciary duty, saying that claim was “duplicative” of the malpractice claim and that, even if the breach of fiduciary duty claim were not duplicative, it would not have survived summary judgment for the same reasons that Tidwell’s malpractice claim was being dismissed. Tidwell contends on appeal that all of these conclusions were in error.

1. Bashuk argues that our analysis of Tidwell’s appeal should begin and end with the trial court’s holding that Tidwell’s settlement of the underlying case bars its malpractice claim. We agree.

In order to prevail on a legal malpractice claim, a plaintiff must establish three elements: (1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill, and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff. Mauldin v. Weinstock, 201 Ga. App. 514, 518 (4) (411 SE2d 370) (1991). “A claim for legal malpractice is sui generis insofar as the plaintiff’s proof of damages effectively requires proof that he would have prevailed in the original litigation but for the act of the attorney charged with malpractice.” White v. Rolley, 225 Ga. App. 467, 468 (1) (484 SE2d 83) (1997) (citations and punctuation omitted). “In a case where a plaintiff’s pending claims remain viable despite the attorney’s alleged negligence, the plaintiff severs proximate causation by settling the case, an act which makes it impossible for his lawsuit to terminate in his favor.” Duncan v. Klein, 313 Ga. App. 15, 20 (1) (720 SE2d 341) (2011) (citation and punctuation omitted). See also Mauldin, 201 Ga. App. at 518 (4). A claim is “viable” if “further litigation of that claim may lead to a favorable result as of the time prior counsel was dismissed from the case.” White, 225 Ga. App. at 468 (2) (citation, punctuation, and emphasis omitted). “Applying this concept to limit recovery necessarily involves a policy decision that, for various reasons including the intervening act of a third person, the defendant’s conduct is too remote from the injury to attach liability.” Id. at 470 (2) (citations omitted). “While this policy decision is usually left to a jury, in plain and undisputed cases the court may make the determination as a matter of law.” Id. (citations omitted).

Here, having engaged another firm to handle its appeal, Tidwell declined to pursue the matter further, settling before the appeal had been briefed. Thus, the question for this Court is whether the appeal made the case viable for purposes of the rule that settlement of a viable underlying claim severs proximate cause. If it did, the decision to settle means Tidwell cannot prove that any negligence by Bashuk caused it injury. Our precedent counsels that a claim is considered viable for these purposes as long as further litigation “may lead to a favorable result.” Id. at 468 (2). Contrary to Tidwell’s arguments, there is no requirement of certainty that the client ultimately would have won the underlying case. See id.

The trial court in Tidwell’s malpractice case found that the appeal Tidwell declined to brief “may ultimately have led to a reversal” that would have permitted a retrial of Chase’s case. We agree. Although Tidwell never briefed its appeal, an e-mail from Bashuk to Tidwell’s in-house counsel set forth several bases for appeal. Speaking for himself and another lawyer brought in as co-counsel for Tidwell prior to trial, Bashuk said in the e-mail that the two lawyers believed the trial judge in Chase’s case had committed reversible error by limiting the testimony of both Freedman (the doctor whom Tidwell had hired to examine Chase) and Marvin Royster, one of Chase’s treating physicians. At the start of the trial in Chase’s case, Chase’s attorney objected to testimony by Freedman on the basis that he had not been identified by Tidwell as an expert witness and that his independent medical examination of Chase was meant to determine whether Chase had dementia, not to explore his PN. Via argument by Bashuk, Tidwell responded that Chase’s counsel was present for Freedman’s examination of Chase and had received the doctor’s report. Bashuk told the trial judge that the defense had “absolutely no problem with withdrawing any hypothetical question that was offered to Dr. Freedman[.]” But, Bashuk suggested, even if Freedman were not able to testify as an expert witness, he should be allowed to testify about Chase’s PN as a lay witness, based on his observations and experience as a physician, adding that Freedman could be considered a treating physician under the law. But the trial judge ruled that he would limit Freedman’s testimony to the doctor’s finding that Chase did not have dementia.

The trial court that later heard Tidwell’s malpractice case held that the judge who heard the underlying personal injury case may have erred by preventing Freedman from testifying as a fact witness as to knowledge he may have obtained through his examination of Chase. As explained by the trial court in the malpractice case, Eleventh Circuit case law draws a distinction between expert and lay testimony by a physician. See Williams v. Mast Biosurgery USA, 644 F.3d 1312, 1316-18 (11th Cir. 2011) (finding that products liability plaintiff’s treating physicians cannot testify that a defective medical product was found in her abdominal cavity). A physician may offer lay testimony if he or she testifies about observations based on personal knowledge, including the treatment of a party. Id. at 1317. However, if a physician’s testimony is based on a hypothesis, then it is expert testimony that must comply with federal law governing such testimony, including Federal Rule of Evidence 702 and the standards established in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (113 S. Ct. 2786, 125 LE2d 469) (1993). Id. at 1317-18.

Based on this case law, it appears at least possible that the Eleventh Circuit may have reversed the verdict in Chase’s favor and granted Tidwell a new trial. Although “[district courts have broad discretion to exclude untimely disclosed expert-witness testimony[,]” Chapman v. Proctor & Gamble Distributing, 766 F.3d 1296, 1315 (11th Cir. 2014) (citation omitted), the trial judge who heard Chase’s case did not merely exclude any expert testimony Freedman might have offered on the cause of Chase’s fall and injuries. He barred Freedman from talking about Chase’s PN at all, including what Freedman might have observed in examining Chase. That testimony would appear to fall squarely within the Eleventh Circuit’s definition of lay testimony. Moreover, the exclusion of Freedman’s testimony on PN may have been significant given that, at trial, Chase suggested he was not experiencing problems with PN at the time of his fall.

Tidwell complains on appeal that the trial court in his malpractice case relied on Williams, a case not cited in Bashuk’s summary judgment brief or at the hearing on that motion, without giving it an opportunity to respond. Tidwell correctly notes that a plaintiff need not respond to issues that are not raised in the motion for summary judgment. See Knight v. American Suzuki Motor Corp., 272 Ga. App. 319, 325 (2) (612 SE2d 546) (2005). However, Bashuk’s summary judgment brief did argue that the malpractice claim was barred by Tidwell’s settlement in the face of a potentially viable appeal, and the brief referenced as an example the trial court’s ruling on Freedman’s testimony in the underlying trial. We are aware of no authority that says a grant of summary judgment may be based only on case law cited by the movant. See Dental One Assocs. v. JKR Realty Assocs., 269 Ga. 616, 617 (1) (501 SE2d 497) (1998) (“It is the evidence of record, not the assertions and objections made by counsel at the hearing, which determines the validity or invalidity of the grant of summary judgment”). Moreover, Bashuk, acting as Tidwell’s attorney, cited Williams in the underlying case as authority that Freedman’s testimony should not be limited. The transcript of that argument was included as an exhibit to an affidavit by Tidwell’s in-house counsel, submitted in this case. Therefore, Tidwell cannot complain that it was unaware of this case law supporting a possible basis for appeal. The trial court properly granted summary judgment on the malpractice claim based on Tidwell’s settlement of the underlying case.

Decided February 10, 2016.

Weissman, Nowack, Curry & Wilco, John G. Nelson, for appellant.

Hawkins Parnell Thackston & Young, H. Lane Young II, M. Elizabeth O’Neill, for appellees.

2. Given that conclusion, we need not consider the appellant’s challenges to the other bases for the trial court’s decision to grant summary judgment on the malpractice claim. However, Tidwell also has appealed the grant of summary judgment on its breach of fiduciary duty claim. It argues that this claim, because it is based on evidence that Bashuk intentionally misrepresented and concealed facts to hide his negligence, must be considered separately from its malpractice claim. However, proximate cause also is an element that must be proven to recover under a breach of fiduciary duty theory. See SunTrust Bank v. Merritt, 272 Ga. App. 485, 489 (2) (612 SE2d 818) (2005). Tidwell’s decision to settle the case means it cannot prove proximate cause to support its breach of fiduciary claim. See Rogers v. Norvell, 174 Ga. App. 453, 458-59 (3) (330 SE2d 392) (1985) (physical precedent only) (plaintiffs’ settlement of underlying action also demands dismissal of breach of fiduciary duty claim for lack of proximate cause).

Judgment affirmed.

Doyle, C. J., and Boggs, J., concur.

       In his testimony, Chase described his condition as involving his foot “slap [ping]” on the pavement.

       Employing this same analysis, the trial court also granted summary judgment to the defense on Tidwell’s claims of breach of contract and breach of good faith and fair dealings. Tidwell does not appeal the trial court’s ruling on these claims.

       Other policy considerations might suggest a different rule. Arule that requires would-be legal malpractice plaintiffs to exhaust all possible appeals in the underlying matter would appear to force those parties to risk increasing their own damages just so they can later pursue an uncertain malpractice remedy. However, binding precedent provides the rule we employ here.

       Shortly thereafter, Bashuk told the judge that Freedman should he permitted to testify “either as a fact witness or an expert.”

        Williams addresses the issue in the context of a “treating physician.” Williams, 644 F.3d at 1316. When Chase’s attorney protested in the underlying case that Tidwell was asking the judge to allow Freedman to testify as a treating physician, even though the doctor had testified in his deposition that he was not, Bashuk responded that although Freedman’s categorization was “irrelevant,” the doctor would meet the definition of “treating physician” because he had given Chase medical attention by taking a history, examining him, and giving a proposed treatment plan. Regardless of whether Bashuk was correct, it is possible that the Eleventh Circuit would have applied its rule articulated in Williams to conclude that Freedman should have been allowed to testify as to his personal observations of Chase.

       Specifically, the brief pointed to the possibility that Tidwell might contend on appeal that it was error for the trial court that heard Chase’s case to preclude Freedman from offering opinion testimony that Chase’s PN made him more likely to fall. The trial judge in this case identified the exclusion of Freedman’s testimony on PN as a fact witness as a possible basis for reversal of the verdict. Even if this is not exactly the same potential appellate argument identified in Bashuk’s summary judgment brief, we find that the brief was sufficient to put Tidwell on notice that Bashuk was contending Tidwell might have had a viable appeal related to limitations on Freedman’s testimony.


source: Caselaw Access Project

author: MERCIER, Judge.

license: Public Domain

text:
    A15A2071.
    BARFIELD v. THE STATE.
    (782 SE2d 726)
   MERCIER, Judge.

We granted the application for discretionary appeal in this case to review the evidence supporting the trial court’s decision to revoke Lee Barfield’s probation. Because the evidence did not support the trial court’s judgment, even under the more lenient standard applicable to a probation revocation, we reverse.

In 1999, Barfield pled guilty to two counts of burglary, statutory rape, and robbery by force. He was sentenced to twenty years, with six to serve in confinement, and the final fourteen years to be served on probation. In 2013 the State filed a petition to revoke his probation, alleging that Barfield had committed armed robbery and failed to pay court-ordered fines. A revocation hearing was held where Barfield contested the petition, arguing that the State had failed to meet its burden.

The evidence presented by the State at the hearing described an armed robbery that occurred on August 26, 2013 at a package store in Helena. The owner of the package store testified that Barfield entered her store at approximately 4:05 p.m., and asked for a bottle of Patron. When shown a bottle of Patron, Barfield expressed dissatisfaction with its size, thanked the owner, and left.

Approximately a minute and a half later, a different individual entered the store and proceeded to rob the owner at knifepoint. At some point during the robbery, the store owner was able to retrieve a handgun and opened fire at her attacker. Several of her shots struck the assailant, and he left the store quickly, climbed into the passenger’s side of a white car, and sped off.

Subsequently, a team of GBI officers went to the package store and conducted a crime scene investigation. At the crime scene they collected a bag of trash, one sunflower seed, two swabs of blood, a bullet fragment, and two latent fingerprints. The sunflower seed, which was found inside the store, was submitted to the crime lab for DNA analysis. That analysis revealed that Barfield’s DNA was on the sunflower seed. The getaway vehicle was also processed, and a bag of sunflower seeds was discovered between the center console and the front passenger’s seat. The GBI agent tasked with investigating the vehicle admitted that no evidence was found linking Barfield with the bag of sunflower seeds recovered from the car, and that there were millions of similar bags in circulation. The agent did not find any fingerprints or DNA linking Barfield with the vehicle, either. Ultimately, the only evidence the State produced linking Barfield to the crime was the sunflower seed carrying his DNA, which was found inside the store.

The trial court found that a preponderance of the evidence showed that Barfield had violated the terms and conditions of his probation by taking part in an armed robbery, and thus revoked the balance of his probated sentence.

A court may not revoke any part of any probated or suspended sentence unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged. OCGA § 42-8-34.1 (b). This court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court.

Scott v. State, 305 Ga. App. 596 (699 SE2d 894) (2010) (citations, punctuation and footnote omitted).

Barfield contends that the trial court erred in revoking his probation because the State failed to show by a preponderance of the evidence that he took part in the armed robbery. “It is, of course, true that mere presence or association, without any evidence to show further participation in the commission of the crime, is insufficient to authorize a conviction.” Clemente v. State, 331 Ga. App. 84, 86 (769 SE2d 790) (2015) (citation and punctuation omitted).

Here the State showed only that Barfield was in the package store moments before the armed robbery took place. While the sunflower seed with Barfield’s DNA places him at the scene of the crime, Barfield’s presence is not in dispute. The State failed to provide any evidence at the probation revocation hearing to show his participation in the commission of the armed robbery. Compare Newsome v. State, 324 Ga. App. 665, 667 (1) (751 SE2d 474) (2013).

The State contends that the presence of the bag of sunflower seeds in the getaway car links Barfield to the crime as the getaway driver. While it is undisputed that a sunflower seed with Barfield’s DNA was found at the scene, there is no evidence linking that particular seed with the bag of sunflower seeds found in the getaway car, none of Barfield’s DNA was found in the car, and none of his fingerprints were found in the car. Here, the evidence equally supports the reasonable hypothesis that Barfield merely spat out a sunflower seed while shopping in the package store, moments before an armed robbery committed by someone else took place. There is no dispute that Barfield was not the person who actually held up the store.

The evidence presented by the State was insufficient under a preponderance of the evidence standard to exclude every other reasonable hypothesis save that of guilt. See Gray v. State, 313 Ga. App. 470, 473-474 (2) (722 SE2d 98) (2011). The evidence was therefore insufficient to support a finding that Barfield committed the offense with which he was charged. Consequently, the trial court abused its discretion by revoking Barfield’s probation.

Decided February 10, 2016.

Walter F. Eddy III, for appellant.

George E. Barnhill, District Attorney, Ian L. Sansot, Assistant District Attorney, for appellee.

Judgment reversed.

Barnes, P. J., and Phipps, P J., concur.


author: Miller, Presiding Judge.

text:
    A15A2345.
    In the Interest of D. D., a child.
    (782 SE2d 728)
   Miller, Presiding Judge.

A juvenile court adjudicated D. D. delinquent for acts which, if committed by an adult, would have constituted involuntary manslaughter (OCGA § 16-5-3 (a)) and battery (OCGA § 16-5-23.1 (a)). D. D. appeals, contending that the juvenile court erredin (1) expressly denying him credit for time served pending adjudication and disposition; (2) ordering additional conditions of supervision to D. D.’s commitment order; and (3) ordering restitution without holding a hearing. We agree, and note that the State concedes all of these alleged errors. Accordingly, we vacate D. D.’s commitment order and remand this case.

Where the facts are undisputed, we review the juvenile court’s application of law de novo. See In the Interest of B. K., 326 Ga. App. 56 (755 SE2d 863) (2014).

So viewed, the evidence shows that, on the evening of July 18, 2014, then 16-year-old D. D. got into a heated argument with the victim outside of the victim’s garage. During the argument, D. D. punched the victim several times in the face with a closed fist, causing the victim to fall to the ground. D. D. kept punching the victim after he fell. Shortly thereafter, D. D.’s grandmother, who lived nearby, arrived in her car, and D. D. left with her. When EMS arrived, the victim was still on the ground and was unresponsive. The victim then went into cardiac arrest and stopped breathing. Although EMS and doctors at the hospital attempted to resuscitate the victim, they were unsuccessful, and the victim died at the hospital.

D. D. was subsequently detained and placed at the Rockdale Youth Detention Center pending his delinquency adjudication. Following a hearing, the juvenile court entered an order adjudicating D. D. as a delinquent for having committed the acts of involuntary manslaughter and simple battery. Thereafter, the juvenile court ordered that D. D. be committed to the custody of the Georgia Department of Juvenile Justice (GDJJ) for two years and ordered that he serve thirty days in a secure detention facility “with no credit for time already served.” The juvenile court also placed additional conditions on D. D.’s supervision, including provisions that prohibited D. D. and his family from having any contact with the victim’s widow and son; required him to remain on house arrest within his residence; and conditioned his release into the community on payment of restitution to the Georgia Crime Victims Compensation Program.

1. D. D. contends that the juvenile court erred in expressly denying him credit for the time he served in detention prior to his delinquency adjudication. We agree.

A child adjudicated to have committed a delinquent act shall be given credit for each day spent in a secure residential facility, a nonsecure residential facility, or any institution or facility for the treatment or examination of a physical or mental disability awaiting adjudication, pending disposition and in connection with and resulting from a court order entered in the proceedings for which the disposition was imposed and in any institution or facility for treatment or examination of a physical or mental disability. Such credit shall be applied toward the child’s disposition.

(Emphasis supplied.) OCGA § 15-11-604 (a); see also OCGA § 15-11-601 (c) (requiring juvenile court to give child credit for time served in a secure residential facility). Moreover, the credit for time served applies to the disposition of all offenses, including felonies. OCGA § 15-11-604 (b).

Here, the record shows that D. D. was detained for a total of ninety days in restrictive detention while awaiting adjudication and that he spent an additional nine days in detention after his adjudication, but before disposition of his case. Given the foregoing statutory language, we agree that the juvenile court erred in expressly refusing to give D. D. credit for the time he spent in restrictive detention. See In the Interest of L. R., 316 Ga. App. 374, 375-376 (729 SE2d 520) (2012) (juvenile court violated former OCGA § 15-11-63 (e) (1) (b) — now OCGA § 15-11-602 — in expressly providing that delinquent child would receive no credit for pre-disposition detention). Accordingly, we must vacate D. D.’s commitment order and remand this case for resentencing. See id. at 376. Upon remand, the juvenile court is directed to give D. D. credit for the 99 days he spent in restrictive detention prior to the disposition of his case. See OCGA §§ 15-11-604 (a), (b); 15-11-601 (c).

2. D. D. contends that the juvenile court erred in placing mandatory conditions on D. D.’s supervision when it ordered that D. D. be committed to the custody and control of the GDJJ. Again, we agree.

When a juvenile is committed to the custody and control of the GDJJ,

custody and control of the juvenile is thereby and thereafter exclusively in the [GDJJ], which is charged with responsibility to diagnose each juvenile and to determine, implement, and periodically revise as needed an individualized plan of care and treatment for each one.

(Punctuation and footnote omitted.) In the Interest of P. S., 295 Ga. App. 724, 726 (673 SE2d 74) (2009). Moreover, once a delinquent child is committed to the custody and control of the GDJJ, the juvenile court has no power to make further provisions dictating the disposition of the child. See In the Interest of R. D., 141 Ga. App. 843 (234 SE2d 680) (1977) (interpreting former Code Ann. Title 24A; Ga. L. 1971, p. 709 et seq.); see also In the Interest of B. D. T., 219 Ga. App. 804, 805 (466 SE2d 680) (1996) (juvenile court cannot commit a child to custody, and provide conditions which control or limit the custodial authority’s discretion in dealing with the child).

Here, the juvenile court ordered that D. D. be committed to the custody of the GDJJ for two years. Having done so, the juvenile court lacked the power to place additional conditions on D. D.’s supervision by the GDJJ. See In the Interest of R. D., supra, 141 Ga. App. at 843; In the Interest of B. D. T., supra, 219 Ga. App. at 805. Upon remand, if the juvenile court wants to ensure that D. D. meets certain conditions upon his release from restrictive custody, the juvenile court can place D. D. in an institution, camp, or other facility operated under the direction of the court or other local authority, rather than committing D. D. to the custody and control of the GDJJ. See In the Interest of R. D., supra, 141 Ga. App. at 844.

Decided February 10, 2016.

Stephen M. Reba, for appellant.

Richard R. Read, District Attorney, Roberta A. Earnhardt, John T. McGuire, Assistant District Attorneys, for appellee.

3. D. D. contends that the restitution provision in his commitment order is unenforceable because the juvenile court failed to hold a restitution hearing. We agree.

Pursuantto OCGA § 15-11-601 (a) (7), a juvenile court may order a delinquent child to make restitution. In doing so, however, the juvenile court must follow the procedures set forth in OCGA §§ 17-14-1 through 17-14-19. These procedures include the requirement of holding a hearing to determine restitution. See OCGA § 17-14-7 (b). At that hearing, the State has the burden of proving the amount of the victim’s loss. See id. The defendant, on the other hand, has the burden of demonstrating his present financial resources, obligations and needs. See Tobias v. State, 319 Ga. App. 320, 329-330 (5) (735 SE2d 113) (2012). Here, the State concedes that no restitution hearing was held and there was no evidence adduced at the adjudication and disposition hearings with regard to the amount of the victim’s loss or D. D.’s ability to pay restitution. Consequently, we must remand this case for a restitution hearing in accordance with the procedures set forth in OCGA §§ 17-14-1 through 17-14-19.

Judgment vacated and case remanded.

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

       An autopsy showed that the victim had an enlarged heart and blood clots in his lungs, as well as other health conditions.

       Prior to the 2010 amendment to former OCGA § 15-11-66 (now OCGA § 15-11-604), juveniles were not entitled to credit for time served prior to adjudication of delinquency. See In the Interest of J. R., 280 Ga. App. 143, 144 (1) (633 SE2d 447) (2006).


author: MILLER, Presiding Judge.

text:
    A15A1783.
    FARMER v. THE STATE.
    (782 SE2d 786)
   MILLER, Presiding Judge.

Following a stipulated bench trial, Frances Farmer was convicted of DUI per se (OCGA § 40-6-391 (a) (5)) and failure to maintain lane (OCGA § 40-6-48). Farmer appeals, contending that the trial court erred in denying her motion to suppress the results of a State-designated breath test because she was not given an independent chemical test. After a review of the case, we affirm.

“On appellate review of a ruling on a motion to suppress, 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.” (Citation omitted.) State v. Walker, 295 Ga. 888, n. 1 (764 SE2d 804) (2014); see also Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015).

So viewed, the evidence shows that in January 2014, Farmer drove her Ford F-150 off the road and crashed into a tree in Rockdale County. The two passengers in Farmer’s vehicle were injured and transported to the hospital. At the time of the collision, Farmer was employed as a Deputy Sheriff for the Rockdale County Sheriff’s Department.

About 30 minutes after the accident, a Georgia State Trooper arrived on the scene and spoke with the responding Rockdale County deputies who were investigating the accident. Upon his arrival, the trooper found Farmer sitting in the back of a county patrol car so that she could stay warm because it was very cold outside. Farmer was not handcuffed, and when the trooper asked Farmer if she was under arrest, Farmer said she was not.

The trooper observed a strong odor of alcohol coming from Farmer’s breath and person and noticed that her eyes were watery. The trooper had Farmer perform the HGN test, and he had her blow into a portable alco-sensor. Farmer tested positive for alcohol on the aleo-sensor test, and she exhibited all six clues on the HGN test. Based on the trooper’s observation of Farmer, as well as his training, knowledge and experience, the trooper determined that Farmer was under the influence of alcohol to the extent that she was less safe to drive.

The trooper then placed Farmer under arrest for DUI and read her the Georgia Implied Consent notice. The trooper asked Farmer if she was willing to submit to a chemical test of her breath. Farmer responded by saying that she would take a urine test. The trooper then explained that he was asking her to submit to a breath test, and Farmer agreed to submit to the designated test.

At that point, in order to make sure there was no confusion, the trooper asked Farmer if she was requesting an independent test. Farmer responded that the breath test was fine because she was “screwed either way.” After making that comment, Farmer gave no further response. Farmer did not request an independent test at any time during the encounter.

The trooper subsequently conducted an Intoxilyzer 5000 test to determine the alcohol concentration of Farmer’s breath. The first sample showed an alcohol concentration of 0.171, and the second sample showed an alcohol concentration of 0.180.

In her sole enumeration of error, Farmer contends that the trial court erred in denying her motion to suppress the results of her State-administered breath test. We do not agree.

OCGA § 40-6-392 (a) (3) provides that a person who is accused of DUI and who undergoes a chemical test at the request of a law enforcement officer has the right to have a qualified person of his own choosing administer an additional test. If an individual requests an independent test but is unable to obtain it, the results of the State-administered test cannot be used by the State as evidence against him unless the failure to obtain the test is justified. An accused’s right to have an additional, independent chemical test administered is invoked by some statement that reasonably could be construed ... to be an expression of a desire for an additional, independent test.

(Citations and punctuation omitted.) Waterman v. State, 299 Ga. App. 630, 631 (683 SE2d 164) (2009). In adhering to this principle, we look to the circumstances surrounding Farmer’s comments about a urine test, not simply the semantics of her words, and we do not view those comments in isolation. See Brooks v. State, 285 Ga. App. 624, 627 (647 SE2d 328) (2007).

Here, when the trooper asked Farmer if she was willing to submit to a breath test under the Implied Consent Law, she initially responded by saying that she would take a urine test. The trooper then explained that he was asking Farmer to submit to a breath test, and she told him that she would submit to the designated test.

Farmer never requested an independent test of her urine, blood, or breath. Moreover, when Farmer told the trooper that she would take a urine test, she was requesting that the trooper designate a urine test, rather than a breath test, as the State-administered chemical test. See Anderton v. State, 283 Ga. App. 493, 494-495 (1) (642 SE2d 137) (2007) (defendant’s statement that “I will take a blood test” was a request that the officer designate a blood test, not a request for an independent test); England v. State, 302 Ga. App. 12, 15 (1) (689 SE2d 833) (2009) (defendant’s statement that he had concerns about accuracy of breath test and would rather submit to a blood test was a request for a designated blood test, not a request for an independent test).

Decided February 11, 2016.

Gordon C. Hall, Jr., for appellant.

Richard R. Read, District Attorney, Roberta A. Earnhardt, Assistant District Attorney, for appellee.

Clearly in this case, the circumstances are distinct from those in McGinn v. State, 268 Ga. App. 450, 452 (602 SE2d 209) (2004), upon which Farmer relies. In McGinn, this Court reversed the denial of the defendant’s motion to suppress where the defendant expressly requested an independent blood test and re-initiated the discussion about the independent test while waiting to take the State-administered breath test. See McGinn, supra, 268 Ga. App. at 451-452. The defendant’s statements in McGinn, unlike Farmer’s, were independently made and were not made in response to the officer’s request for consent to a State-administered breath test. See id.

In denying Farmer’s motion to suppress, the trial court expressly found that Farmer declined an independent urine test, and this factual finding is supported by record evidence. Accordingly, the trial court did not err in denying Farmer’s motion to suppress.

Judgment affirmed.

Branch and Peterson, JJ., concur.

       Farmer was also found guilty of DUI less safe (OCGA § 40-6-391 (a) (1)), however, the trial court merged Farmer’s less safe conviction into her DUI per se conviction. Additionally, the State nolle prossed Farmer’s charges for reckless driving (OCGA § 40-6-390) and misdemeanor obstruction (OCGA § 16-10-24).

       The trooper did not ask Farmer to perform the walk and turn test because she indicated that she was on leave from her job for a knee injury. Farmer also told the trooper that she was taking ibuprofen and oxycodone for her injury.


author: BARNES, Presiding Judge.

text:
    A15A1868.
    REDFORD v. THE STATE.
    (782 SE2d 791)
   BARNES, Presiding Judge.

Mike Redford, a pro se defendant, appeals the trial court’s order denying his motion for speedy trial. We granted the discretionary appeal of the pre-trial denial of Redford’s motion for speedy trial. Finding no error, we affirm.

Redford was arrested in October 2013 and indicted on four counts of aggravated stalking. Redford, a pro se defendant, filed multiple motions with the court including a motion to quash the indictment, a motion for bond, and a demand for speedy trial. At one point, Redford hired an attorney to represent him at his motion for bond hearing on February 26, 2014. On May 7, 2014, the trial court granted a motion from the attorney to withdraw as Redford’s counsel.

Redford filed his demand for speedy trial, along with several other motions, on April 8, 2014 with the clerk of court. The trial court set a hearing on some of Redford’s motions for October 22, 2014. At the hearing, the State argued that Redford filed the motion while he was still represented by an attorney, and the motion was not filed properly because Redford did not serve the trial court. The trial court denied Redford’s motion for a speedy trial based on those facts. Redford timely appealed this decision.

“[A] demand for speedy trial has no legal effect whatsoever if filed by a defendant acting pro se at a time he is represented by counsel.” Schaefer v. State, 238 Ga. App. 594 (1) (519 SE2d 248) (1999). Redford had counsel in February 2014 at his motion for bond hearing, and the attorney did not withdraw until May 2014. The demand for speedy trial was filed on April 8,2014, when Redford was still represented by counsel. Accordingly, “the trial court did not err in denying [Redford’s] pro se motion on the ground that he was represented by counsel at the time he filed the motion.” Works v. State, 301 Ga. App. 108, 110 (2) (686 SE2d 863) (2009).

Moreover, OCGA § 17-7-170 (a) provides that “the demand for a speedy trial shall be filed with the clerk of court and served upon the prosecutor and upon the judge to whom the case is assigned.” The trial court may deny a demand for speedy trial if the defendant fails to serve the demand on both the prosecutor and the trial court. Leimbach v. State, 251 Ga. App. 589, 590 (554 SE2d 771) (2001) (holding “a defendant must strictly comply with the filing and service requirements of OCGA § 17-7-170”).

Redford provided no evidence that he served the trial court with the demand. Redford claimed that he sent the motions in a separate envelope to the judge and to the State, but the trial court determined that Redford’s certificate of service only showed service on the State. “A trial court’s finding of lack of service of a demand for speedy trial will be accepted unless it is clearly erroneous.” Williams v. State, 258 Ga. App. 367, 368 (1) (574 SE2d 416) (2002). We find no error in the trial court’s denial of Redford’s motion for a speedy trial based on the above facts.

Judgment affirmed.

Ray and Mercier, JJ., concur.

Decided February 11, 2016

Mike J. A. Redford, pro se.

Brian K. Fortner, District Attorney, Anna C. Vaughan- Upshaw, Assistant District Attorney, for appellee.

       In his brief, Redford listed 68 errors of enumeration alleging that the trial court erred in some way. However, these claims are not yet ripe for our review or are without merit.

       We granted Redford’s appeal because a defendant has the right to directly appeal from the pre-trial denial of a statutory speedy trial demand. Tolbert v. Toole, 296 Ga. 357, 360 (2), n. 7 (767 SE2d 24) (2014).

       Redford also filed a motion to proceed pro se with a co-counsel. However, there is no right to hybrid representation by oneself and counsel. Potts v. State, 259 Ga. 812, 815-816 (4) (388 SE2d 678) (1990).

       The trial court heard Redford’s motion to quash the indictment on August 27, 2014.


author: Peterson, Judge.

text:
    A16A0191.
    JAYKO v. THE STATE.
    (782 SE2d 788)
   Peterson, Judge.

Kara Jayko appeals a condition imposed on her sentence of ten years’ probation. She argues that the sentencing court’s prohibition on her ability to live with someone of the opposite sex for the duration of her probation violates her constitutional rights. But because it took ten years for her appeal to arrive at this Court, Jayko has already completed her sentence and is no longer subject to the challenged condition. Accordingly, she cannot benefit from any remedy we could offer on appeal, and we must grant the State’s motion to dismiss her appeal as moot.

In 2005, Jayko pleaded guilty to three counts of forgery and one count of false statements, and pleaded nolo contendere to two lesser charges. She was sentenced to ten years’ probation for the forgery counts and lesser terms running concurrently for the others. In her brief, Jayko asserts that during the sentencing hearing, the judge orally imposed as a condition of her probation a prohibition on living with someone of the opposite sex to whom she was neither married nor related.

Jayko filed a notice of appeal on October 28, 2005. The clerk of superior court for Cherokee County transmitted the record on appeal to this Court on September 10, 2015. Jayko’s sentence expired October 5, 2015. On appeal, Jayko challenges only the condition of her sentence prohibiting her from living with someone of the opposite sex.

Because Jayko has already completed her sentence and is no longer subject to the condition of probation she challenges, the State moved to dismiss the appeal as moot. Jayko does not dispute that she no longer requires a remedy, but argues that the precedent of this Court allows us to decide even moot cases when the issue to be decided is important.

Jayko misreads our precedent and the precedent of the Supreme Court of Georgia, which mandates dismissal of moot cases absent an applicable exception. Mootness is “a jurisdictional matter.” Collins v. Lombard Corp., 270 Ga. 120, 122-23 (3) (508 SE2d 653) (1998). When the remedy sought in litigation no longer benefits the party seeking it, the case is moot and “must be dismissed.” Roberts v. Deal, 290 Ga. 705, 707 (1) (723 SE2d 901) (2012); see also Baca v. Baca, 256 Ga. App. 514, 515-16 (1) (568 SE2d 746) (2002) (“mootness is a mandatory ground for dismissal”).

Our precedent does not recognize a mootness exception in cases like this. Jayko points to Medina v. State, in which we exercised jurisdiction to hear a challenge to a conviction where the sentence had already expired. 312 Ga. App. 399, 400 n. 3 (718 SE2d 323) (2011). And on first blush, that precedent appears to frame dismissal of moot cases as discretionary. Medina, 312 Ga. App. at 400 n. 3 (characterizing Supreme Court of Georgia decision in a parenthetical as granting courts “discretion to address the merits of cases rendered moot by the defendant’s service of his sentence”); accord Baker v. State, 240 Ga. 431, 431-32 (241 SE2d 187) (1978) (dismissing as moot challenge to conviction and noting that “[although a court may exercise its discretion to decide a criminal case even after the sentence has been served, it is not bound to do so.”) (citations omitted). But challenges to convictions brought after the expiration of a sentence may still afford meaningful relief for an appellant, while challenges brought only to sentence conditions cannot.

It has long been our precedent that we have jurisdiction to decide challenges to convictions brought by defendants who have completed their sentences, so that they “may seek to redress legal grievances flowing from allegedly void convictions and thereby hope to escape lifelong adverse collateral consequences.” Chaplin v. State, 141 Ga. App. 788, 790 (1) (234 SE2d 330) (1977) (quoting Parris v. State, 232 Ga. 687, 691 (208 SE2d 493) (1974)). In other words, the appellant may still receive a remedy (relief from “lifelong adverse collateral consequences”), and thus those cases are not moot. Rodriguez-Martinez v. State, 243 Ga. App. 409, 410 (1) (533 SE2d 443) (2000) (“On account of these collateral consequences, the case is not moot.”) (citation and punctuation omitted).

Our decision in Medina was simply a direct application of that precedent in a case involving a challenge to a conviction. Medina, 312 Ga. App. at 400 n. 3 (following Chaplin and characterizing it in a parenthetical as granting courts “discretion to address the merits of cases rendered moot by the defendant’s service of his sentence”). And because Medina involved a challenge to a conviction, its holding is necessarily limited to that context. Although it is the province of the judiciary to say what the law is, Rutter v. Rutter, 316 Ga. App. 894, 896 (1) n. 4 (730 SE2d 626) (2012) (Blackwell, J.), rev’d on other grounds, 294 Ga. 1 (749 SE2d 657) (2013), the extent of that province is limited by the facts of the case before the court. Mootness is jurisdictional, we lack discretion to hear a moot case, and appeals are moot when the appellant will not benefit from any remedy sought on appeal.

Jayko’s only challenge is to a sentence condition to which she is no longer subject. Because she is no longer subject to that condition, she would no longer benefit from relief from that condition; any adverse collateral consequences she might still experience flow not from the sentence condition but from her conviction, which she does not challenge here. Accordingly, her appeal is moot and must be dismissed. Cf. Miller v. State, 288 Ga. 153, 154 (702 SE2d 137) (2010) (vacating this Court’s opinion affirming partial revocation of probation and concluding that the challenge to probation revocation was moot when the revocation was suspended and appellant had not shown adverse collateral consequences on the record).

Before dismissing the appeal, however, we must address the ten-year delay in the transmission of the record to this Court. This appeal is part of a number of cases recently transmitted to this Court by the Cherokee County Superior Court Clerk’s Office in which court costs had remained unpaid. Before a case is transmitted to this Court, an appellant must pay the costs to prepare the record or file an affidavit of indigence certifying that he or she is unable to pay such costs. See OCGA § 15-6-80 (“In all cases certified to the appellate courts, the costs for preparing the transcript of the record shall be paid by the appellant to the clerk before the same is transmitted unless the judge presiding over the case being appealed approves an affidavit submitted to the judge by the appellant certifying that the appellant is unable to pay such costs[.]”) (emphasis added); see also OCGA § 9-15-2(a)(l).

In this case, trial counsel filed the notice of appeal on Jayko’s behalf, but did not attach an affidavit of her indigence, causing the delay in the transmission of the. record to this Court. That delay effectively denied Jayko of her opportunity to appeal the condition she asserts was imposed on her sentence. Indeed, we might well have closely scrutinized the condition she challenges if we had the power to do so. But we do not. Her appeal is now moot, and we must dismiss it.

Decided February 11, 2016.

Lee W. Fitzpatrick, for appellant.

Shannon G. Wallace, District Attorney, Cliff Head, Assistant District Attorney, for appellee.

Appeal dismissed.

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

       This condition does not appear in the written sentencing order, and the record does not include a transcript of any sentencing hearing. Accordingly, the condition may well have not even applied. See OCGA § 42-8-34.1(a)(2) (special conditions of probation must be “identified in writing in the sentence”); Harvey v. Meadows, 280 Ga. 166, 169-70 (3) (626 SE2d 92) (2006) (same).

       Jayko’s counsel on appeal, Lee Fitzpatrick (also her counsel at the trial level over ten years ago), notes that the circuit defender’s office in Cherokee County had a policy requiring defendants to request new counsel on appeal, and accordingly he did not follow Jayko’s case once he filed the notice of appeal. Mr. Fitzpatrick does not state that he informed Jayko of the circuit defender’s policy requiring her to seek new counsel on appeal, nor does he offer any reason why he did not obtain an affidavit of indigence from Jayko. Moreover, the record indicates that the order appointing Mr. Fitzpatrick specified that he would “remain appointed until relieved by order of the Superior Court and thereafter unless and until relieved by order of the Appellate Court.” The record contains no such order relieving him. We take this opportunity to remind the bar that, until appointed counsel is relieved of the appointment by order of a court, appointed counsel has a duty to continue representing a client, keep the client apprised about the status of the case, and fully inform the client of his or her appellate rights and requirements to pursue an appeal, including a client’s obligations to perfect the record.


author: Ray, Judge.

text:
    A15A1660.
    BOCCIA v. THE STATE.
    (782 SE2d 792)
   Ray, Judge.

Daniel Boccia and Brandon Cesari were tried jointly before a jury for crimes resulting from an altercation that occurred behind a fraternity house on the campus of the Georgia Institute of Technology (“Georgia Tech”). Both men were indicted for armed robbery (OCGA § 16-8-41); two counts of aggravated assault with intent to rob (OCGA § 16-5-21 (a) (1)); carrying a weapon in a school safety zone (OCGA § 16-11-127.1); and battery (OCGA § 16-5-23.1). The jury convicted Boccia, who at the time of the crimes was a 21-year-old student at Georgia Perimeter College, of armed robbery, battery, and carrying a weapon in a school safety zone, but acquitted him on the two aggravated assault counts. He appeals from the denial of his motion for new trial, contending that the evidence was insufficient to support his convictions for armed robbery and carrying a weapon in a school safety zone, that the trial court erred in how it instructed or failed to instruct the jury, and that the trial court erred in making comments that allegedly interfered with the plea negotiations. He also argues that his trial counsel was ineffective. For the reasons that follow, we affirm.

The facts, as outlined in our earlier opinion in the related Cesari case, are as follows:

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that following a University of Georgia - Georgia Tech football game, Georgia Tech student Blake Bauer was in a friend’s room at the Pi Kappa Phi fraternity house when he heard someone banging on the window. He went outdoors to investigate and saw two men who rushed at him and punched him in the face. He identified the men in court as Cesari and Boccia. He testified that Boccia punched him first, then Cesari punched him. The men punched him “at least ten times in the face.”
Bauer fell down onto a PVC pipe, which he picked up and tried to swing at the men, hitting Cesari. He swung the pipe only once before Cesari snatched it from him. As Boccia grabbed him by the collar and backed him toward some air conditioning units, he saw that Cesari was pointing a knife at him. Bauer testified that the knife had approximately a three-inch blade. Both men demanded Bauer’s wallet and money. Bauer denied having any money. Cesari then hit Bauer in the back of the head with the pipe. Bauer felt a searing pain and fell to the ground. Boccia began patting Bauer’s pockets, looking for a wallet, so Bauer took out his wallet and handed it to Boccia. The men opened the wallet, and upon finding that it contained no cash, threw it at Bauer and left the scene. Jurors saw surveillance video of the incident.
Another Georgia Tech student witnessed the incident from his window in a nearby fraternity house. At about 2:00 a.m., he saw two men breaking bottles, then saw them retrieve a knife from their car and walk toward the Pi Kappa Phi house, where they began throwing PVC pipes that were three to four feet in length. He testified that the street lights and fraternity house lights were on and that he could see the men’s faces. He identified Boccia and Cesari, whom he had seen earlier at a party in his own fraternity house, as the men he saw throwing the pipes. However, he could not recall which man had the knife. He saw Bauer walk out of the Pi Kappa Phi fraternity house. Although Bauer did not approach Boccia and Cesari aggressively, both Boccia and Cesari began punching Bauer, who fell to the ground. When the men backed Bauer into the corner by the air conditioning units, one of them hit Bauer in the head with a PVC pipe.
The witness called 911, and Georgia Tech police arrested Cesari and Boccia later that evening. Officers found a knife in Boccia’s pocket. The knife was admitted into evidence at trial and shown to the jury.
Boccia testified at trial; Cesari did not. Boccia testified that he and Cesari, who were both intoxicated, were behind the Pi Kappa Phi fraternity house “throwing some stuff around” when he looked into one of the fraternity house’s windows. He said Bauer came outside and confronted him with a PVC pipe, hitting him in the forehead. Cesari took the pipe from Bauer, and Cesari and Bauer began to fight. Boccia threatened Bauer and testified that he “remember[ed] having [Bauer’s] wallet in my hands,” though he denied asking Bauer for the wallet. More specifically, he testified at trial that Bauer “brandished his wallet out” saying “take my wallet,” then threw it to the ground. He further testified that he was too drunk to recall why he picked up the wallet, but said he looked through it. When shown the knife, he testified that his grandfather had given it to him and that he had given it to Cesari at some point in the evening to open a beer bottle. He said Cesari threw the knife to the ground and that he picked it up, not knowing it may have been used in the altercation.

Cesari, supra at 606-607.

Boccia appeals from the denial of his motion for new trial.

1. Boccia argues that the trial court erred in failing to give, sua sponte, several jury charges, as outlined below. He further argues that his trial counsel was ineffective in failing to seek these jury instructions.

Pursuant to OCGA § 17-8-58 (b), although no objection is made at the trial, appellate courts must conduct a plain error review when an appealing party properly asserts an error in jury instructions. State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011).

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

(Citation and punctuation omitted.) Id. at 33 (2) (a).

As to Boccia’s claims of ineffective assistance of counsel:

Under Strickland v. Washington, [466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984)], to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. When reviewing the trial court’s decision, this Court will accept the trial court’s factual findings and credibility determinations unless clearly erroneous; however, we review the court’s application of legal principles de novo.
If a defendant bases his ineffectiveness claim on trial counsel’s failure to request a charge on a certain defense, it is irrelevant whether the trial court would have been required to give such a charge absent a request. Rather, the appropriate inquiry is whether trial counsel provided deficient representation in failing to request the charge, and if so, whether the defendant can meet the prejudice prong of Strickland v. Washington. In making the latter determination, the relevant inquiry is whether the charge, if it had been requested, was warranted by the evidence, and if it had been given, whether there is a reasonable probability that it would have changed the outcome of the trial.

(Citation and footnotes omitted.) Pierre v. State, 330 Ga. App. 782, 784-785 (2) (769 SE2d 533) (2015).

(a) Boccia argues that if the jury could have found from the evidence that the robbery was committed without the use of the knife as an offensive weapon, as charged, he was entitled to a charge on robbery by intimidation (unarmed robbery) or theft by taking as lesser included offenses. See OCGA § 16-1-6.

(i) Lesser included charges. Pursuant to OCGA § 16-8-40 (a) (1), (2),

[a] person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another ... [b]y use of force [or] . . . [b]y intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another [.]

Under OCGA § 16-8-2, a person commits the crime of theft by taking “when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.”

Bauer testified that Cesari had a knife, and a witness, Alexander Layyous, testified that he saw a knife but could not identify whether Boccia or Cesari was holding it. Bauer testified that Boccia demanded his wallet and patted his pockets in an attempt to find it. Cesari, supra at 606. Bauer also testified that the men threatened him by “wav[ing] a knife in my face. The other one put his fists up into my face like — you know, like threatening to punch me more.” Bauer testified that he was afraid.

Boccia, however, denied even knowing that a knife was involved in the incident. He acknowledged threatening Bauer but insisted that he never asked for Bauer’s wallet. Boccia testified that Bauer offered him the wallet and threw it on the ground, saying, “Here, take my wallet.” Boccia acknowledged picking up the wallet, but testified that he “didn’t take anything” from it and had no intent to rob Bauer.

While it is true that “[w]here a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense,” Styles v. State, 329 Ga. App. 143, 150 (2) (764 SE2d 166) (2014) (punctuation and footnote omitted), our plain error analysis requires that we look to the Kelly standard, supra. “Satisfying all four prongs of this standard is difficult, as it should be.” (Citation and punctuation omitted.) Kelly, supra at 33 (2) (a). Here, exercising our discretion and in light of the overwhelming evidence of Boccia’s guilt, as outlined above, we cannot say that the failure to give the lesser included instructions either created any reasonable likelihood that the State’s burden of proving all essential elements of armed robbery was lessened, or that the charge as given likely affected the outcome of the proceedings or seriously affected the fairness, integrity, or public reputation of the proceedings. Carter v. State, 269 Ga. 891, 893 (7) (506 SE2d 124) (1998); Kelly, supra. We find no error.

(ii) Ineffective assistance of trial counsel. Boccia argues that trial counsel was ineffective in failing to request a jury charge on the lesser included offenses of robbery by intimidation or theft by taking. We disagree.

At the motion for new trial hearing, trial counsel testified that he could not “imagine” a strategic reason for not seeking an instruction on the lesser included offenses, and that he did not remember why he did not seek such an instruction. It is clear, however, that trial counsel pursued an all-or-nothing strategy in defending Boccia on the armed robbery count. Boccia admitted to no wrongdoing and denied all aspects of participation in the armed robbery. He denied any intent to rob, denied demanding Bauer’s wallet, and denied even knowing that a knife was used. He also denied ever harming or hitting Bauer.

Looking at the objective reasonableness of counsel’s performance, we find that there were sound strategic reasons for not undermining Boccia’s all-or-nothing defense by introducing the idea that he may have committed lesser crimes. Villegas v. State, 334 Ga. App. 108, 112 (2) (778 SE2d 363) (2015) (counsel’s failure to seek a charge on a lesser included offense and instead to pursue an all-or-nothing strategy “is not so patently unreasonable that no competent attorney would have made that decision”) (citation and punctuation omitted). See also Powell v. State, 291 Ga. 743, 748 (2) (b), n. 2 (733 SE2d 294) (2012) (“That [defendant’s] lawyer recalled no strategic thinking that might have motivated [his actions] is of no moment. Although the thinking of the lawyer may be relevant to our inquiry... our inquiry properly is focused on what the lawyer did or did not do, not what he thought or did not think”) (citation and punctuation omitted). Counsel was not ineffective.

(b) Boccia argues that the trial court erred in failing to instruct the jury sua sponte on the law of self-defense and also argues that his trial counsel was ineffective in failing to request such an instruction.

(i) Self-defense instruction. Boccia asserts that the trial court erred when it failed to charge the jury on the affirmative defense of self-defense. It is true that “the trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge.” (Citation, punctuation and footnote omitted.) Burden v. State, 290 Ga. App. 734, 736-737 (3) (660 SE2d 481) (2008). However,

[w]ith a legal affirmative defense, the accused admits the elements of the crime, but seeks to justify, excuse, or mitigate by showing no criminal intent; all elements of the parts of the crime are admitted with the exception of the intent. All defenses which have been held to be statutory affirmative defenses meet this criteria; i.e., justification, self-defense or defense of others. Each of these affirmative defenses requires that the defendant admit the crime before he can raise such defense.

(Citation and punctuation omitted; emphasis supplied.) Hicks v. State, 287 Ga. 260, 261-262 (2) (695 SE2d 195) (2010).

Boccia has not admitted to any crimes. He denied using any offensive weapon or facsimile thereof to take Bauer’s wallet. He testified that he did not know a knife was used in the robbery, and has denied possessing a knife with a blade of two or more inches. He has never admitted to harming Bauer and repeatedly denied hitting him. As Boccia denied the elements of the crimes, a charge on self-defense was not warranted, and the trial court did not err. LeMon v. State, 290 Ga. App. 527, 530-531 (3) (660 SE2d 11) (2008).

(ii) Ineffective assistance of trial counsel. Boccia also argues that his trial counsel was ineffective in not seeking a jury instruction on self-defense. As outlined in Division 1 (b) (i), self-defense is an affirmative defense that requires the defendant to admit to all elements of the crimes with the exception of criminal intent. Hicks, supra at 261-262 (2). Boccia made no such admissions. Also, because the evidence did not support a self-defense jury instruction, trial counsel’s failure to make a futile charge request does not constitute ineffective assistance. Pierre, supra at 786 (2).

2. Boccia argues that the trial court erred in instructing the jury that the offense of armed robbery could be committed in a manner not alleged in the indictment. As trial counsel did not object to this instruction, Boccia contends that the trial court committed plain error. See OCGA § 17-8-58 (b), supra; Kelly, supra; and our plain error discussion in Division 1, supra. We disagree.

A criminal defendant’s right to due process may be endangered when an indictment charges the defendant with committing a crime in a specific manner and the trial court’s jury instruction defines the crime as an act which may be committed in a manner other than the manner alleged in the indictment. The giving of a jury instruction which deviates from the indictment violates due process where there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment.

(Citation omitted; emphasis supplied.) Schneider v. State, 312 Ga. App. 504, 507 (2) (718 SE2d 833) (2011).

The indictment alleged that Boccia committed the offense of armed robbery “by use of a knife; an offensive weapon[.]” The trial court charged the jury that a person commits armed robbery “by use of an offensive weapon[,]” and defined the term “offensive weapon” as “any object, device or instrument that when used offensively against a person is likely to or actually does result in death or serious bodily injury. The character of a weapon may be established by direct or circumstantial evidence.” Boccia argues, and the State concedes, that the evidence presented could have allowed the jury to find him guilty of armed robbery committed by a method not charged in the indictment, including by use of a PVC pipe. However, the State’s concession does not end our inquiry.

Where the indictment charges a defendant committed an offense by one method, it is reversible error for the court to instruct the jury that the offense could be committed by other statutory methods with no limiting instruction. The defect is cured, however, where . . . the court provides the jury with the indictment and instructs jurors that the burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.

(Citations omitted; emphasis supplied.) Mikell v. State, 286 Ga. 722, 724 (2) (b) (690 SE2d 858) (2010). In the instant case, the trial court read the indictment to the jury and sent the indictment, a written copy of its charge, and the verdict form out with the jury when it began deliberations.

In Mikell, supra, the Supreme Court found no error where an indictment charged the defendant with burglary by entering the victim’s hotel room without authority, while the jury charge provided that the crime could be committed by a person who “enters or remains in any building” without authority. (Punctuation and emphasis supplied.) Mikell, supra at 724 (2) (b). Mikell does not directly quote the trial court’s limiting instruction, but finds that, “[considered in its entirety, the charge in this case fairly instructed jurors that they could convict appellant of burglary only as charged in the indictment[.]” Id.

The trial court in the instant case instructed jurors not to begin deliberations until they received the indictment in the jury room, and told jurors to “look at the indictment to see how these charges are alleged.” While the court told jurors to consider the testimony and evidence “together with the charge of this court,” it immediately cured its own instruction by adding that jurors could convict the defendant only if “you should find and believe beyond a reasonable doubt that the defendant[ ] . . . committed] the offense of armed robbery ... as alleged in the indictment[.]” (Emphasis supplied.) The trial court’s curative instruction was sufficient. Faulks v. State, 296 Ga. 38, 39 (2) (764 SE2d 846) (2014) (trial court instructed jury that the State must prove every element of the crimes as charged in the indictment); Schneider, supra at 508 (2) (trial court’s limiting instruction that the indictment “sets forth in each count specifically what the State contends is the crime in this case” cured any alleged error).

3. Boccia argues that his trial counsel was ineffective in failing to object when the trial court’s jury instruction on armed robbery expanded the scope of the indictment. In light of our holding in Division 2, we disagree, as Boccia has failed to show ineffective assistance of counsel as a result of counsel’s failure to object to the jury charge which, even if erroneous, was cured by the trial court’s limiting instruction and, thus, did not affect the outcome of the proceedings. Faulks, supra at 39 (3).

4. Boccia argues that the trial court’s comments “improperly encouraged [him] to proceed to trial” rather than “entertaining any plea discussions with the prosecution” because the trial court led him to believe that he would not receive a sentence of greater than 10 years. We disagree.

“Atrial court is not authorized to participate in plea negotiations except to the extent of indicating whether the court is or is not likely to agree with the proposed disposition.” (Citation omitted.) Bell v. State, 252 Ga. App. 74, 76 (1) (a) (555 SE2d 747) (2001). In one set of comments that Boccia complains of, the trial court told the State that it had a

you’ve-got-to-be-kidding-me feeling about this case right now, that what I’m seeing right now by virtue of just your opening statements is y’all are pursuing armed robbery against these two defendants based on a PVC pipe that somebody picked up in a frat fight and a pocket knife that maybe has a 2-inch long blade on it. I have seen the State come off armed robbery charges for a lot more egregious conduct than this. I’m not prejudging anything... I haven’t heard your case. ... I don’t pick the charges, but I do sentence. You’re going to have to get an armed robbery conviction to get a whole lot of time from what I’m seeing right now.

(Emphasis supplied.)

The trial court, as Boccia acknowledges, “did not explicitly state, T will not sentence the defendant to more than ten years no matter what.’ ” Still, he argues that “when the [S]tate offered to allow [him] to plead guilty and receive a sentence of ten years, there was no reason to accept this offer, because a conviction following trial would have no worse consequence.”

First, according to the trial court, the State’s “best last offer” was not a 10-year sentence, but rather a “15 years[’] sentence to serve 10 years in jail, balance probated[.]” Second, the record shows that the trial court’s complained-of comments occurred after Boccia had rejected this offer and after he told the court he wanted to go to trial despite understanding that he could be sentenced to a maximum of life plus 51 years if convicted on all counts. As Boccia points us to no other evidence of another actual plea offer, we can find no merit in his contention that he rejected an offer because of the trial court’s after-the-fact comments.

However, Boccia also argues that the trial court interfered in the plea negotiation process. He complains of a second, later comment, made just before closing arguments. There, the trial court said, “[Y]ou know my feelings on the case. It really hasn’t changed. You know, my comments initially were after hearing the State’s opening that even if you proved everything you’re going to prove I was a bit surprised at what was going forward.” The trial court continued, however, saying, “I think what is in evidence under the law as to what elements there are for armed robbery, there’s enough there for a jury to consider it, so I think as a court that’s where I am, but as far as a plea, that’s a whole different ballgame.”

In that context, defense counsel told the trial court that there were “some brief discussions with respect to a potential plea” although he “[did not] see that as a possibility” and that “if the door is closed, the door remains close [d].” Defense counsel said he “initiated” the negotiations, while “the State didn’t invite anything.” Counsel for the State merely said he was “waiting to hear” from the defense. The lawyers then had an off-the-record discussion. The trial court, in the context of the State’s 15-years-to-serve-10 offer before the trial, had earlier indicated that it was “inclined to sentence according to that negotiated sentence if you did work that out[,]” which Boccia had said he understood. There is no record evidence of another plea offer by the State after the trial but before the closing. The evidence only indicates that Boccia made some sort of plea proposal on which the parties, obviously, could not agree.

While it is inappropriate for a trial court to insert itself into the plea negotiation process, Uniform Superior Court Rule 33.5 (B) expressly allows a trial court to indicate whether it is likely to agree in a proposed plea. Compare Skomer v. State, 183 Ga. App. 308, 309-310 (358 SE2d 886) (1987) (finding that while a court may communicate its willingness or lack thereof to accept an independently negotiated plea, the trial court may not participate by indicating that “rejection of a plea proposal will result in greater punishment in the event of a conviction by a jury”) (emphasis omitted). The instant case does not come within Skomer’s purview because the trial court did not enter into plea negotiations and neither promised nor implied that it would only give Boccia a 10-year sentence, or that it would give him a higher sentence if he did not plead. The trial court also clearly stated that it was not prejudging the case. See Baptiste v. State, 229 Ga. App. 691, 699 (3) (494 SE2d 530) (1997). We find Boccia’s contentions unavailing.

5. Boccia contends that the evidence was insufficient to support his conviction for armed robbery. We disagree.

As an initial matter, the jury was charged on parties to a crime. OCGA § 16-2-20 provides:

(a) Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime, (b) A person is concerned in the commission of a crime only if he: (1) Directly commits the crime; (2) Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity; (3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.

As outlined more fully above, the victim, Bauer, testified that Cesari had a knife in his hand while Boccia was yelling, “Give me your f — ing wallet[,]” and that both Cesari and Boccia demanded his wallet. The victim testified that the men threatened him, then Cesari left briefly to pick up one of the PVC pipes, then returned and hit him in the back of the head. He fell to the ground, and Boccia “started patting me down looking for my walletf.]” Fearing that he “could potentially be cut, stabbed, potentially murdered right here[,]” the victim gave Boccia his wallet.

Boccia argues that no testimony shows he “possessed” the knife during the course of the robbery or that he and Cesari planned the event. However, it was not necessary for the State to prove either of these contentions as the evidence authorized the jury to conclude that Boccia intentionally aided and abetted the commission of the crime and was more than merely present. In Tesfaye v. State, 275 Ga. 439, 439-440 (1) (569 SE2d 849) (2002), our Supreme Court recognized that the defendant did not need to possess the weapon to be convicted as a party to the crime of armed robbery and possession of a firearm during the commission of a crime, where the defendant’s accomplice carried a firearm during the robbery. Further, although Boccia argues that pursuant to Rosemond v. United States, _ U. S. _ (II) (B) (134 SCt 1240, 1248-1250, 188 LE2d 248) (2014), that a defendant must know in advance that his companion is armed because the defendant must intend to commit each element of the crime rather than a single component of it, our Supreme Court already has distinguished and declined to follow Rosemond. The Court noted that Rosemond was decided pursuant to the federal aiding and abetting statute that involves using or carrying a firearm in connection with a drug trafficking crime, and found that “federal law . . . does not control here.” Hicks v. State, 295 Ga. 268, 273 (1), n. 3 (759 SE2d 509) (2014). See also Williams v. State, 276 Ga. 384, 386 (4) (578 SE2d 858) (2003) (prosecution not required to prove defendant knew that co-defendant intended to use a gun; the only proof required was that defendant was part of a conspiracy to rob and co-defendant’s “use of the weapon was naturally and necessarily done in furtherance of that crime”). The evidence was sufficient.

Decided February 12, 2016.

Garland, Samuel & Loeb, Donald F. Samuel, for appellant.

6. Boccia argues that the evidence was insufficient to show that he possessed a knife with a blade longer than two inches on school property. Pursuant to OCGA § 16-11-127.1, the statute that prohibits carrying or possessing weapons in a school safety zone, a weapon includes “any dirk, bowie knife, switchblade knife, ballistic knife, [or] any other knife having a blade of two or more inches[.]” OCGA § 16-11-127.1 (a) (2).

Boccia testified at trial that he possessed a knife at various times during the course of the evening, including that he possessed it at the scene of the crime. The crime occurred on the Georgia Tech campus. See OCGA § 16-11-127.1 (a) (1). At trial, a police officer displayed the knife to the jury, and Bauer testified that he saw the knife and that it had “probably a 3-inch blade.” Under the standard of review mandated by Jackson, supra, the evidence was sufficient. This enumeration is without merit.

Judgment affirmed.

Barnes, P. J., concurs. McMillian, J., concurs fully in Divisions 1 (a) (ii), (b) (i)-(ii), 2, 3, 4, 5 and 6 and concurs in judgment only in Division 1 (a) (i).

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

       OCGA § 16-11-127.1 has been amended multiple times since the offenses occurred. We consider the case in light of the appropriate prior version of that statute. The pertinent language in the prior and current versions of the statute is identical. See Ga. L. 2010, p. 463, § 2; p. 963, § 1-4.

       This Court rendered a separate decision in Cesari’s appeal in Cesari v. State, 334 Ga. App. 605 (780 SE2d 56) (2015).

       Boccia’s motion to file a supplemental brief is denied.

       Boccia cites to a portion of the record where he testifies that he was restraining Bauer from hitting him and checking to see if Bauer had a weapon, hut does not reveal in his appellate brief which conviction or convictions he is challenging with this affirmative defense.

         Boccia also argues, and the State agrees, that the charge would have permitted the jury to convict Boccia of armed robbery by use of his hands. We note that “hands and feet do not constitute offensive weapons for purposes of the armed robbery statute.” Wright v. State, 228 Ga. App. 779, 780 (1) (492 SE2d 680) (1997).

        Milner v. State, 297 Ga. App. 869 (678 SE2d 563) (2009) is distinguishable and does not require a different result. When the jury in Milner asked for a recharge on the crime at issue, terroristic threats, the trial court for the second time gave an improper charge. Milner, supra at 860 (1). Further, the trial court did not give a limiting instruction to ensure that the jury would base any finding of guilt on the manner charged in the indictment. Id.

       Boccia received a 15-year sentence for armed robbery, with 14 years in confinement and the remaining year on probation. This sentence runs concurrently with a 10-year sentence for possession of a weapon in a school safety zone and with a one-year sentence for battery.

       The trial court did not indicate that it would give a harsher sentence if the defendant was convicted at trial, only that it would take a conviction for armed robbery for it to consider giving him “a whole lot of time.” Of course, Boccia was convicted of armed robbery. Further, it is not lost on us that Boccia was not pressured or induced into entering a plea, as he demanded and received a trial on all issues.

       Again, we note that there was testimony that Cesari possessed the knife during the crime and that the jury was instructed as to the elements of party to the crime, OCGA § 16-2-20.


author: Branch, Judge.

text:
    A15A1667.
    A15A1668.
    A15A1748.
    THE STATE v. MILLER. THE STATE v. EVANS. THE STATE v. BROUGHTON.
    (782 SE2d 803)
   Branch, Judge.

On March 13, 2015, Michael Miller, Eric Evans and Nathaniel Broughton appeared for hearings as to whether their probations should be revoked in light of their involvement in new crimes. When the State failed to produce victims or witnesses of each of the new crimes, the trial court dismissed all three of the new indictments “for want of prosecution.” The State has appealed all three dismissals on the ground that the trial court interfered with the State’s right to prosecute when it dismissed the new indictments during the probation revocation hearings. We agree and reverse.

The records show that Miller was indicted for burglary and tools possession on September 12, 2014; that Evans was indicted for aggravated assault, robbery, battery and child cruelty on October 21, 2014; and that Broughton was indicted for aggravated assault and firearms charges on December 5, 2014. On February 24, 2015, all three of these criminal matters were called as part of a probation revocation calendar set and noticed for that day. When each probation revocation matter was called, the trial court dismissed each of the new indictments “for want of prosecution,” noting that the State could not get the “witnesses to court” in Miller’s case and the “victim [s] to court” in Evans’s and Broughton’s cases. None of the trial court’s three orders dismissing the indictments noted whether the dismissals were with or without prejudice, and no transcript of proceedings was taken. These appeals followed.

On appeal, the State argues that the trial court erred when it dismissed the three cases-in-chief because the dismissals lacked a legal basis and thus interfered with the State’s right to prosecute criminal cases. We agree.

A trial court is authorized to dismiss accusations and indictments. See OCGA § 5-7-1 (a) (1) (authorizing an appeal “[f]rom an order, decision, or judgment setting aside or dismissing any indictment, accusation, or a petition alleging that a child has committed a delinquent act, or any count thereof”). Specifically, a trial court’s power to control the proceedings before it “entails the discretion to dismiss criminal charges without prejudice for want of prosection.” State v. Brooks, 301 Ga. App. 355, 359 (687 SE2d 631) (2009) (citation omitted). But a trial court “abuses its discretion when it interferes with the State’s right to prosecute by dismissing an accusation without a legal basis to do so.” Brooks, 301 Ga. App. at 359.

Atrial court generally lacks the authority to dismiss accusations with prejudice, except when a prosecutor would violate a defendant’s rights by continuing a prosecution. Brooks, 301 Ga. App. at 359; State v. Luttrell, 207 Ga. App. 116 (427 SE2d 95) (1993) (reversing dismissal of accusation with prejudice due to want of prosecution, noting the lack of any “statutory or case authority which permits such dismissals in criminal cases”) (citations omitted; emphasis in original); see also State v. Blackwell, 245 Ga. App. 135, 137 (537 SE2d 457) (2000) (affirming dismissal of drug possession charges when the State had violated defendant’s due process rights and acted in bad faith by destroying a potentially exculpatory urine sample before defendant had been given an opportunity to conduct an independent test of it). There is no evidence in the record that would support a finding that the defendants suffered a violation of any of their rights, including due process.

A trial court has the discretion, however, to dismiss criminal cases without prejudice as long as the record provides a legal basis for the dismissal, such as a want of prosecution. Brooks, 301 Ga. App. at 360. In Brooks, we reversed a dismissal of disorderly conduct charges arising from a school fight as an abuse of discretion when “[t]he record [showed] no want of prosecution.” Id. Likewise, in State v. Perry, 261 Ga. App. 886 (583 SE2d 909) (2003), another school fight case, we held that a trial court abused its discretion in dismissing criminal charges, even when the school system asked that they be dropped, because such a request did not provide a sufficient legal basis for dismissal. Id. at 887-888. In this case, the State never agreed to leave the disposition of these charges to the trial court’s discretion. We also note the lack of any authority for the proposition that a trial court, where there is no due process violation, is authorized to dismiss criminal charges without prejudice due to the unavailability of evidence. Brooks, 301 Ga. App. at 360. In short, there was no legal basis for the trial court to dismiss the indictments without prejudice.

Decided February 12, 2016.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellant.

Dennis C. Francis, Jr., for appellees.

As a final point, this trial court dismissed the three indictments at issue during the probation revocation proceedings triggered by them. But “ ‘[a] criminal prosecution and a probation revocation proceeding based on the same occurrence actually have nothing to do with each other.’ ” Teague v. State, 169 Ga. App. 285, 286 (1) (312 SE2d 818) (1983), quoting Aldridge v. State, 155 Ga. App. 916, 917 (273 SE2d 656) (1980); see also Brown v. State, 294 Ga. App. 1, 2 (1) (668 SE2d 490) (2008). At a probation revocation proceeding, “the defendant is not in the position of one accused by indictment, even though the probationary condition alleged to have been violated is the commission of a crime against the State.” Johnson v. State, 214 Ga. 818, 819 (108 SE2d 313) (1959) (citations omitted). Such a proceeding “ ‘is not a trial on a criminal charge, but is a hearing to [judicially determine] whether the conduct of the defendant during the probation period has conformed to the course outlined in the order of probation.’ ” Id., quoting Sparks v. State, 77 Ga. App. 22, 23 (47 SE2d 678) (1948). Even if this trial court would have been justified in denying the State’s petitions for probation revocation on the ground that it had failed to produce any witnesses in support of the petitions, there is no legal basis for the dismissal of the indictments at issue in this appeal.

For these reasons, we reverse the trial court’s dismissal of these indictments as an unwarranted interference in the State’s right to prosecute criminal cases and an abuse of the trial court’s discretion.

Judgments reversed.

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

       None of the three appellees has filed a brief opposing the arguments raised in the State’s initial brief.

       By contrast, the prosecutor in State v. Aldridge, 259 Ga. App. 673, 673 (577 SE2d 863) (2003) “agreed to leave the decision as to the final disposition” of the charges, including driving on a suspended license, to that trial court, which dismissed them without prejudice.


author: RAY, Judge.

text:
    A15A1994.
    A15A1995.
    A15A2125.
    A15A2126.
    BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA v. JORDAN et al. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA v. BRADLEY et al. MCG HEALTH, INC. et al. v. JORDAN et al. MCG HEALTH, INC. et al. v. BRADLEY et al.
    (782 SE2d 809)
   RAY, Judge.

The parents of Cayleb Drayton and the parents of Jonathan White (“the plaintiffs”) filed separate lawsuits in DeKalb County asserting claims for negligence under the Georgia Tort Claims Act against the Board of Regents of the University System of Georgia (“BOR”) and MCG Health, Inc., MCG Health System, Inc., the Medical College of Georgia Physician Practice Group Foundation, and Georgia Regents Medical Associates, Inc. (collectively “MCG”) arising out of the medical care and treatment that their children received at the Children’s Hospital of Georgia (Georgia Regents Medical Center) in Richmond County. After undergoing surgical procedures there, the children were transferred to Children’s Healthcare of Atlanta in DeKalb County, where they underwent multiple corrective surgeries requiring lengthy hospitalization. Although the alleged negligent acts or omissions that form the bases of the lawsuits occurred solely in Richmond County, the plaintiffs filed their respective complaints in DeKalb County, where a substantial portion of their resulting losses occurred. The trial court denied BOR and MCG’s motions to transfer the cases to Richmond County, finding that venue was proper in DeKalb County pursuant to OCGA § 50-21-28. These interlocutory appeals ensued. As the issues of venue presented in Case Nos. A15A1994, A15A1995, A15A2125, and A15A2126 are identical, we consolidate the cases for the purposes of appellate review. For the reasons that follow, we affirm the trial court’s ruling on the motions to transfer.

1. BOR and MCG contend that the trial court erred in concluding that venue is proper in DeKalb County, where a substantial portion of the plaintiffs’ losses occurred. We disagree.

Here, the underlying facts relating to the issue of venue are undisputed. Therefore, the trial court’s application of the law to the undisputed facts is subject to de novo review. See HD Supply, Inc. v. Garger, 299 Ga. App. 751, 751 (683 SE2d 671) (2009).

When an action is brought under the Georgia Tort Claims Act against a State entity, even when the State entity is not the sole tort-feasor, the mandatory venue provision of OCGA § 50-21-28 applies. See Dean v. Tabsum, Inc., 272 Ga. 831, 834 (536 SE2d 743) (2000). OCGA § 50-21-28 provides, in pertinent part, that “[a]ll tort actions against the state under this article shall be brought in the state or superior court of the county wherein the loss occurred[.]” Thus, the determinative factor in the cases before us is the situs of loss.

The term “loss,” as used in the Georgia Tort Claims Act, is defined in OCGA § 50-21-22 (3) as “personal injury; disease; death; damage to tangible property, including lost wages and economic loss to the person who suffered the injury, disease, or death; pain and suffering-, mental anguish-, and any other element of actual damages recoverable in actions for negligence.” (Emphasis supplied.) Had the legislature intended to limit venue for claims under the Georgia Tort Claims Act to the county where the negligent acts or omissions giving rise to the damages occurred, instead of where the “loss” occurred, it could have so provided. When the language of a statute is plain and unambiguous and does not lead to an absurd result, it supplies the sole evidence of legislative intent, and it must not be contravened. See Hall County Bd. of Tax Assessors v. Peachtree Doors, 214 Ga App. 613, 614 (448 SE2d 476) (1994). Upon a plain reading of OCGA §§ 50-21-22 (3) and 50-21-28, it is clear that the legislature intended to allow a tort action to be brought against the State in the county where economic loss, pain and suffering, mental anguish, and other elements of actual damages occurred. Since it is undisputed in the cases before us that the plaintiffs incurred losses in DeKalb County, venue is proper in DeKalb County.

Furthermore, in Dept. of Transp. v. Evans, 269 Ga. 400 (499 SE2d 321) (1998), our Supreme Court has addressed the question of whether a literal interpretation of OCGA § 50-21-28 wouldsubject the State to numerous lawsuits in different counties arising out of the same occurrence, depending on where the various losses occurred. The Court found that, in such a case, “there is no concern of an absurd result in the event of multiple claims derived from personal injuries to the same individual, each constituting a loss as contemplated in OCGA § 50-21-28, because [joinder of the claims may be required and] nothing in the statute precludes the plaintiff’s election of venue among the locations of loss.” (Emphasis in original.) Id. at 401.

For the above reasons, the trial court’s denial of the motions to transfer venue is affirmed.

2. In Case No. A15A1995, BOR also asked us to consider the merits of another interlocutory ruling by the trial court regarding the applicable limits of BOR’s liability for monetary damages under OCGA § 50-21-29 (b) (1). We decline to consider the merits of that interlocutory ruling at this time because the trial court’s ruling will not impair BOR’s ability to present its defense on the merits of the plaintiffs’ claims at trial and because the issue may become moot upon the final disposition of the case. Nevertheless, BOR’s right to appeal this issue is preserved, and the issue may be raised by BOR in any future appellate review available to it.

Decided February 12, 2016

Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, C. McLaurin Sitton, Senior Assistant Attorneys General, for Board of Regents.

Brennan, Wasden & Painter, James V. Painter, F. Michael Taylor, Amanda D. Lynde, Samuel E. Britt III, for MCG Health, Inc., et al.

Moraitakis & Kushel, Nicholas C. Moraitakis, Glenn C. Kushel, Martha D. Turner, for appellees.

Judgments affirmed.

Barnes, P. J., concurs. McMillian, J., concurs in Division 1 and concurs in judgment only in Division 2.