text:
    A12A1171.
    SMARR v. THE STATE.
    (732 SE2d 110)
   Dillard, Judge.

Following a jury trial, Deonte Smarr was convicted on one count of burglary and one count of criminal attempt to commit burglary. He subsequently filed a motion for new trial, which the trial court denied. Smarr argues on appeal that the trial court erred in admitting similar-transaction evidence and in denying his motion for directed verdict as to the charge of attempted burglary, and further that his trial counsel rendered ineffective assistance for various reasons. Smarr also asserts that the trial court impermissibly increased his sentence after he began serving same. We agree that the trial court erred in increasing Smarr’s sentence and therefore vacate that order and remand this case for resentencing; however, we affirm Smarr’s convictions in all other respects.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict. So construed, the evidence adduced at trial showed that on May 12, 2009, a deputy with the Douglas County Sheriff’s Office was on routine patrol during the very early morning hours and observed three individuals dressed in all black and wearing ski masks attempting to load what appeared to be a large box onto the bed of a truck parked behind a convenience store located on Anneewakee Road (the “Anneewakee burglary”). As the deputy approached in his marked vehicle, the three individuals fled on foot, and the driver of the truck led the deputy on a high-speed chase, ending only when the truck crashed into a ditch. The deputy immediately apprehended the truck’s driver, Annie Freeman, and placed her under arrest; the three fleeing individuals, however, were not located at that time.

A subsequent investigation revealed that the surveillance cameras and security system at the convenience store had been disabled and that the perpetrators gained entry into the store by breaking through a glass door. They were attempting to load the store’s safe onto the truck when the officer arrived and thwarted their plan. Law-enforcement officers located and seized three cellular telephones and several tools, including a sledge hammer/ax combination tool and a crowbar, from the interior of Freeman’s truck following her arrest.

Freeman spent three months incarcerated, unwilling to provide investigators with any information about the Anneewakee burglary or her co-conspirators. As the investigation continued, however, the investigating officers intercepted and recorded numerous telephone calls between Freeman and an individual later identified as co-defendant Milton Davis, in which the two discussed details about the burglary and Freeman’s frustration that she had been the only person apprehended. During their conversations, Freeman and Davis also frequently mentioned an individual they called “D,” but whom they also referred to on occasion as “Deonte.” Armed with this information, in conjunction with her independent research related to the cell phones recovered from Freeman’s vehicle, the investigator identified Smarr as a suspect and testified that she was “very confident” that he was a participant in the Anneewakee burglary.

Freeman eventually tired of being the only suspect in jail and agreed to speak to investigators. In her statement, she confessed the details about the Anneewakee burglary and provided the identities of the other individuals involved, including Davis, Smarr, and their co-conspirator, Lindsey Mayes.

With respect to the Anneewakee burglary, Freeman reported that after identifying the target store, she and Davis drove in one vehicle and Smarr and Mayes in another, as they conducted late-night surveillance to ensure that the store was closed and free of potential witnesses. The foursome then met at a separate location and all got into Freeman’s car. The crew brought with them a combination sledge hammer/ax tool and a crowbar. They returned to the store at approximately 1:00 a.m., where Davis got out and cut the wires to the store’s security system. After ensuring the security system was disabled, the crew left and waited approximately 30 minutes in order to confirm that no one had been alerted to their presence. Upon returning to the store, Smarr and Mayes broke the glass in the door to gain entry and returned shortly thereafter with the store’s safe on a hand truck. The deputy drove up as Davis, Smarr, and Mayes were attempting to load the safe onto Freeman’s truck, and everyone fled the scene, with only Freeman being apprehended.

In addition to detailing the Anneewakee burglary, Freeman confessed that she and her co-conspirators — including Smarr — had been involved in several other burglaries and attempted burglaries. She specifically detailed the attempted burglary of a Shell gas station located on Post Road, which occurred on May 9, the week prior to the Anneewakee burglary (the “attempted Shell burglary”).

With respect to the attempted Shell burglary, Freeman explained to investigators and testified at trial that, per their usual practice, Davis identified the Shell station as the desired target of their burglary. During the daylight hours on the day of the intended crime, she and Davis “scope [d]” out the store to determine the location of the surveillance cameras and security-alarm wires. Later that night, Freeman drove Davis to meet Smarr and Mayes, who had driven in a separate vehicle to again surveil the Shell station and confirm that there was no sign of unwanted activity. At approximately 1:00 a.m., the four individuals met in a different location and drove to the Shell station together in Freeman’s truck. After determining that “everything was clear,” Smarr and Mayes disabled the surveillance cameras and cut the security-alarm wires. Having done so, the foursome left and waited approximately 30 minutes to ensure that their actions had not triggered an alert to the police or security company. They then returned to the Shell station, where Smarr and Mayes proceeded to the back of the building and, using a sledge hammer and an ax, broke through the wall of the building. Before the pair was able to enter the store, however, they heard an alarm that had been triggered on the interior of the building. Having communicated this fact via cell phone to Freeman and Davis, who had remained in Freeman’s truck, the group agreed to meet in the woods adjoining the gas station. Once reunited in Freeman’s truck, the foursome circled the block and noticed that law-enforcement vehicles had arrived on the scene. They thereafter left the area and did not return.

In addition to Freeman’s testimony, the jury heard from Mayes. Mayes discussed how he, Smarr, Freeman, and Davis committed the Anneewakee burglary and, with the exception of stating that he and Smarr (as opposed to Davis) disabled the security cameras and alarm, his testimony was entirely consistent with Freeman’s. Likewise, his account of the attempted Shell burglary essentially mirrored that of Freeman’s, in that he and Smarr disabled the security cameras and alarm and then, after waiting for a period of time, broke a hole in the wall with a sledge hammer prior to hearing an internal alarm that caused the foursome to flee the scene.

The manager of the Shell station also testified and explained that on the night in question, she received a call from the security company alerting her that the store’s alarm had been triggered. Upon her arrival at the store, she discovered that the external camera and security system had been damaged, and that a hole had been made in the concrete wall in the back of the building.

Finally, the jury was presented with similar-transaction evidence involving Smarr, which consisted of two other convenience-store burglaries — one in Clayton County and one in Haralson County— that he participated in with Freeman and Davis. Smarr was caught and arrested at the scene of the Clayton County burglary, and he confessed to participating in the Haralson County crime.

The jury ultimately convicted Smarr of the Anneewakee Road burglary and of criminal attempt to commit burglary of the Shell station. He thereafter moved for a new trial, which the trial court denied. This appeal follows.

1. Smarr argues that the trial court erred in admitting the similar-transaction evidence because the crimes were not sufficiently similar. We disagree.

When considering the admissibility of similar-transaction evidence, the proper focus is “on the similarities, not the differences, between the separate crime and the crime in question.” And here, the similar-transaction evidence offered by the State is strikingly similar to the crimes at issue in the case sub judice.

The Clayton County burglary occurred in December 2008 and involved Curly’s outlet store. Freeman testified that she, Smarr, Davis, and another individual went to the target location during the early morning hours, where Davis cut the wires to disable the store’s security equipment and then returned to her truck. She and Davis proceeded to wait in the truck while Smarr used a sledge hammer/ax combination tool to break a hole in the wall, through which Smarr and the fourth individual could enter the store to retrieve the store’s safe, lottery tickets, and cigarettes. At some point, however, a police car pulled up behind the store and, although Freeman and Davis drove from the scene undetected, Smarr and his co-conspirator were arrested on the spot. Smarr had in his possession the sledge hammer/ax combination tool.

The Haralson County crime occurred in April 2009 and involved a different convenience store. As in the other burglaries, Freeman and Davis drove independently of Smarr and a fourth individual and then met at a nearby location, where all four got into Freeman’s truck. They then surveilled the area and, after determining the coast was clear, either Smarr or Davis disabled the cameras and security system. Upon leaving and ensuring that law enforcement had not been alerted, Smarr and the fourth individual returned and gained access to the store by jarring the front door. They took with them the sledge hammer/ax combination tool and a crowbar. Although they could not find a store safe, the pair used the tools to break open several gaming machines and took a large amount of change. They then called for Freeman and Davis to pick them up. Smarr later confessed to participating in the crime.

Both of the independent burglaries admitted by the State involved a combination of the same individuals, were committed during the early morning hours at comparable stores, were conducted in a similar manner using the same tools, and occurred within six months of the crimes at issue in this case. These facts rendered it well within the trial court’s discretion to admit the prior incidences as similar-transaction evidence to show identity, plan, and course of conduct.

2. Smarr next contends that the trial court erred in denying his motion for directed verdict as to the attempted Shell burglary because the State failed to prove the owner of the Shell station. His argument is based on (a) an alleged fatal variance between the indictment and the evidence presented at trial, and (b) insufficient evidence to support the conviction. We will address each of these claims in turn.

(a) Smarr first argues that a fatal variance exists between the indictment and the evidence presented at trial. In the indictment, the State charged Smarr with the offense of criminal attempt to commit burglary in that,

on or about May 9, 2009, without authority and with the intent to commit a theft therein, [he] perform [ed] an act which constitutes a substantial step towards burglary, to wit: [he] did cut the telephone and alarm wires and hammer a hole in the wall of the Shell Station located at 3300 Post Road , a building owned by Sandbar Properties ....

Smarr contends that the evidence did not show that the Shell station in question was owned by Sandbar Properties, and that the failure to prove this allegation constitutes a fatal variance. Once again, we disagree.

It is well established that under Georgia law, we no longer adhere to an overly technical application of the fatal-variance rule, “focusing instead on materiality.” Thus, the threshold inquiry is not whether there “has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused.” We make this determination by exploring whether the underlying reasons for the fatal-variance rule have been served, namely (1) whether the allegations definitely inform the accused as to the charges against him so that he may present his defense and not be taken by surprise, and (2) whether the allegations adequately protect the accused against another prosecution for the same offense. Only if the allegations fail to satisfy either of these two tests is the variance considered “fatal.”

In the context of a charge of burglary or criminal attempt thereof, we have previously held that the State’s failure to prove ownership of a burglarized dwelling house or building — even if such ownership has been alleged — does not render the variance fatal, so long as the evidence otherwise establishes that the dwelling house or building did not belong to the defendant and his entry lacked authority. Indeed, “[o]wnership is not an essential element” to proving the crime of burglary.

Here, the indictment definitely informed Smarr of the crime with which he was being charged and sufficiently identified — by both physical address and corporate name — the building that Smarr was alleged to have attempted to enter without authority. Furthermore, nothing in the indictment was misleading or would have otherwise impeded Smarr’s ability to present a defense or taken him by surprise at trial. And finally, Smarr cannot be subjected to a subsequent prosecution for the same crime of the subject Shell station on the date in question. It follows then, that any variance between the allegations of ownership in the indictment and the evidence at trial was not fatal.

(b) In a related argument, Smarr asserts that the State’s failure to prove who owned the Shell station rendered insufficient the evidence that his attempted entry into the building lacked authority. Smarr’s argument lacks merit.

The evidence showed that Smarr and his co-conspirators spent the daylight hours “scoping” out the building in question in order to familiarize themselves with its surveillance and security equipment, returned in the early morning hours after confirming that the building was unoccupied, disabled the security cameras and alarm system, took care to ensure that their activity to that point had gone undetected, and then hammered a hole in the wall to gain entry, only to flee upon hearing an alarm and realizing that law enforcement had been alerted. Clearly this evidence was sufficient to allow the jury to infer that Smarr and his co-conspirators’ attempted entry into the Shell station lacked authority. Accordingly, we affirm the trial court’s denial of Smarr’s motion for directed verdict.

3. Smarr asserts that his trial counsel rendered ineffective assistance in several respects. In order to succeed on his claim, Smarr must establish (1) counsel’s performance was deficient and (2) that the deficient performance prejudiced his defense such that there is a reasonable probability that the outcome of the trial would have been different. In this context, prejudice is established by “showing that counsels’ errors were so serious as to deprive [Smarr] of a fair trial, a trial whose result is reliable.” Unless both deficient performance and prejudice are shown, Smarr has not met his burden of proving a breakdown in the adversary process and is not entitled to a new trial. Mindful of this framework, we turn to Smarr’s specific claims of ineffective assistance.

(a) Smarr argues that his counsel was ineffective because counsel failed to prohibit him from being interviewed about the Haralson County burglary that ultimately resulted in his confession to that crime and its admission as similar-transaction evidence in the instant case. At the time Smarr gave his confession, he had not been charged in the Haralson County burglary and his trial counsel did not represent him in relation to that incident. Nonetheless, prior to interviewing Smarr, the investigating officer called Smarr’s trial counsel and a conversation then ensued between Smarr and his attorney. Smarr’s trial counsel testified at the new-trial hearing that during that conversation, he asked Smarr if Smarr really wanted to speak with the officer, and Smarr responded in the affirmative. Counsel nevertheless testified that he regretted not directing the officer to return Smarr to his cell and not to engage Smarr in any further conversation.

Smarr argues that his counsel was deficient in failing to warn him that any statement made in the Haralson County incident could be used against him in the instant case. But Smarr has failed to meet his burden of proving that allegation by the record. Although it is clear from the testimony presented at the motion-for-new-trial hearing that Smarr consulted with his counsel prior to making the statement, the contents of that discussion — besides Smarr’s assertion that he desired to speak — are unclear. Moreover, prior to admitting the statement, the trial court conducted a Jackson-Denno hearing and determined that Smarr’s statement was made voluntarily after having been advised of and waiving his Miranda rights. Thus, the trial court did not err in concluding that Smarr failed to establish that his counsel’s performance was deficient in this regard.

(b) Smarr next argues that his trial counsel was ineffective because he failed to properly impeach the testimony of both Freeman and Mayes. Significantly, as a general rule, “matters of reasonable trial strategy and tactics do not amount to ineffective assistance of counsel.” And a court deciding an actual ineffectiveness claim must judge the “reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct,” recognizing that “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”

As to Freeman, Smarr argues that his counsel should have impeached Freeman’s testimony by focusing on inconsistencies between her statement to investigators and her trial testimony regarding whether she was an actual participant in the attempted Post Road burglary or whether she learned of the event through Davis. Smarr’s counsel testified at the new-trial hearing that he considered Freeman a “terrible witness” for Smarr. He declined to take an aggressive role in cross-examining Freeman because he viewed her as a “very sympathetic” witness (her child had been taken from her as a result of her arrest), and he deduced that trying to “break her down” or portray her as a “low-life liar” would be adverse to Smarr’s cause and potentially “irritate” the jury. His strategy was driven by his belief that “the less time she spent [on the witness stand], the better.”

As to Mayes, Smarr argues that trial counsel was deficient because counsel failed to effectively impeach Mayes concerning the full magnitude of his extensive prior criminal history and his incentives to fabricate evidence, and in not adequately highlighting inconsistencies in his testimony. Smarr’s counsel testified that Mayes was someone “who ha[d] done nothing but steal all his life,” and counsel decided not to focus on Mayes’s criminal history after concluding that Smarr would not benefit from the jury knowing that Smarr was friends and associated with such a person. Counsel further explained that Mayes, who testified while wearing a jail jumpsuit, freely admitted on the stand that he was a recidivist currently in jail, who became eligible for parole in exchange for agreeing to testify against Smarr. And finally, the inconsistencies about which Smarr complains (namely, who disabled the security cameras and alarm during the Anneewakee burglary) were discussed while Mayes underwent questioning from the other attorneys involved in the case.

Smarr has failed to show that his counsel’s strategy and tactics with respect to his cross-examination of Freeman or Mayes were unreasonable. The trial court, therefore, did not err in denying Smarr’s motion for new trial on this ground.

(c) Smarr contends that his trial counsel was ineffective in not seeking suppression of his cellular-telephone records and cell-site-tower-location information (“CSLI”), which he argues was obtained without statutory authority and in violation of his Fourth Amendment rights against unreasonable searches and seizures. The challenged information was obtained pursuant to a court order authorizing the service of a subpoena upon the network provider servicing one of the cellular phones recovered from Freeman’s vehicle following her arrest. It provided additional evidence that the cellular phone belonged to Smarr, and that on the date and time of the Anneewakee burglary, the telephone was being used in the vicinity of the burglarized convenience store and had been exchanging telephone calls with both Freeman and Davis.

In its order denying Smarr’s motion for new trial, the trial court held that his counsel was not ineffective in failing to move to suppress the information because the motion would not have been successful based upon the law as it existed at the time of the trial. And while we recognize that, due to the advanced nature of the technology at issue, the law in this area is continuously evolving, Smarr’s motion would be denied based upon the latest authority on the issue as well. Consequently, Smarr has failed to show that his counsel was deficient in failing to file a motion to suppress, and further failed to meet his burden of proving that there is a reasonable probability that the outcome of the trial would have been different had counsel challenged the subject evidence in the manner asserted by Smarr.

(d) Smarr contends that his trial counsel was ineffective for failing to object to the admission of the Clayton County and Haralson County crimes on the ground that the crimes were not sufficiently similar to the instant crimes to warrant their admission. As we held in Division 1, however, any such objection to the similar-transaction evidence would have been futile and cannot form the basis of a claim of ineffective assistance of counsel.

(e) Lastly, Smarr argues that his counsel rendered ineffective assistance by failing to object to certain testimony by two investigators who actively worked on Smarr’s case. The challenged testimony involved statements related to Freeman’s confession that she and others — including Smarr — had committed several burglaries in addition to the ones for which Smarr was being tried, and that the investigators had spoken to the owners of some of the stores mentioned by Freeman and confirmed that Freeman’s statements were consistent with the respective owners’ accounts of what had transpired. Smarr argues, inter alia, that the testimony constituted the improper admission of similar-transaction evidence without the requisite pre-trial hearing. Smarr’s counsel agreed at the new-trial hearing that the testimony resulted in the improper admission of similar-transaction evidence, but was unable to recall why he failed to object.

We agree with Smarr that the subject testimony was inadmissible and that his counsel was deficient for failing to object to its admission. Nevertheless, Smarr is not entitled to a new trial in the absence of a showing of prejudice, such that a reasonable probability exists that the outcome of the trial would have been different had the evidence not been admitted. This he has failed to do. The jury was presented with the direct testimony of two of Smarr’s accomplices, who provided detailed accounts of Smarr’s participation in the crimes at issue — the vast majority of which were remarkably consistent with each other, the store owners’ descriptions, and the physical evidence at the scene of the crimes — in addition to the cellular evidence placing Smarr around the scene of the crime during the Anneewakee burglary, and the properly admitted similar-transaction evidence involving two other burglaries committed in largely the same manner — one of which resulted in Smarr being caught red-handed and the other of which he admitted to committing. Under these circumstances, the trial court did not err in denying Smarr’s claim of ineffective assistance of trial counsel.

4. Finally, Smarr argues that the trial court erred by enhancing the custodial terms of his sentence after he had begun serving the same. We agree.

The trial court’s original order sentenced Smarr to a thirty-year sentence — ten years to be served in incarceration and the remaining twenty years to be served on probation — and on its face indicated that Smarr was being sentenced “as a repeat[ ] offender under OCGA § 17-10-7 (c).” Smarr subsequently filed a motion for correction of sentence in which he requested that the trial court omit the reference to OCGA § 17-10-7 (c) on the basis that, at the time that Smarr had committed the acts at issue in this case, he was not a fourth offender, but had at most two prior felony convictions. At the hearing on Smarr’s motion, counsel emphasized that he was “not seeking anything regarding the equities of the sentence” or “seeking any other sentence modification” at that time, but requesting only that the trial court remove the reference to OCGA § 17-10-7 (c). The trial court then issued a new sentencing order deleting the reference to OCGA § 17-10-7 (c) but, in so doing, increased the incarceration component of Smarr’s sentence from ten years to fifteen years, such that his new sentence was thirty years, fifteen years to serve in incarceration and the remaining fifteen years to be served on probation.

It is undisputed that at the time the trial court issued the modified order, Smarr had already begun serving his incarcerated sentence. And our Supreme Court has made it abundantly clear that once a defendant begins serving his sentence, “that sentence can only be increased through resentencing where (a) such resentencing is allowed by law, and (b) the defendant has no reasonable expectation in the finality of the original sentence.” In the absence of such circumstances, the “limitation on the court’s sentencing authority stems from the double jeopardy provisions of our constitutions.”

Nothing in the burglary statute authorizes the manner of resentencing imposed by the trial court in this case. And we reject the State’s contention that by requesting that the trial court omit the improper reference to OCGA § 17-10-7 (c) on the face of the sentencing order, “he was seeking modification of his sentence . . . [and] cannot claim that he had a reasonable expectation that his sentence was final.” This is particularly true when counsel emphasized on more than one occasion during the hearing on his motion that Smarr was neither challenging the equity of nor seeking any modification of the sentence itself. Under these circumstances, we are constrained to vacate the order imposing the increased sentence and remand this case to the trial court for resentencing in accordance with this opinion.

Decided September 6, 2012.

Mark R. Jeffrey, for appellant.

David McDade, District Attorney, Rachel D. Ackley, James A. Dooley, Assistant District Attorneys, for appellee.

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

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

        Bearfield v. State, 305 Ga. App. 37, 37-38 (699 SE2d 363) (2010).

        Muhammad v. State, 290 Ga. 880, 882-83 (2) (725 SE2d 302) (2012) (punctuation omitted); see also Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

       In his subsequent statement to law-enforcement officers, Smarr testified that it was Davis who cut the wires, although Freeman testified that Davis suffered from an injured hip such that Smarr had done the cutting.

        See Henderson v. State, 300 Ga. App. 478, 480-81 (1) (685 SE2d 454) (2009); Butler v. State, 294 Ga. App. 540, 543 (2) (669 SE2d 525) (2008); King v. State, 246 Ga. App. 100, 101-02 (2) (539 SE2d 614) (2000).

       See OCGA § 16-4-1 (“Aperson commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.”); OCGA § 16-7-1 (a) (“A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within . .. any building .. . .”); see also OCGA § 16-2-20 (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.”).

        Weeks v. State, 274 Ga. App. 122, 125 (1) (616 SE2d 852) (2005) (punctuation omitted).

        Id.

        See id.

        See id.

        See Ward v. State, 304 Ga.App. 517, 524 (3) (696 SE2d 471) (2010) (affirmingdefendant’s burglary conviction despite that the evidence failed to establish that the burglarized residence was the dwelling house of the named victim, as alleged in the indictment); Edward v. State, 261 Ga. App. 57, 59 (2) (581 SE2d 691) (2003) (affirming defendant’s burglary conviction regardless of whether actual ownership of the house was as alleged in the indictment). Cf. Weeks, 274 Ga. App. at 124-25 (1) (rejecting appellant’s argument that evidence that he burglarized a building rather than a dwelling house as charged in the indictment amounted to a fatal variance).

        Murphy v. State, 238 Ga. 725, 728-29 (2) (234 SE2d 911) (1977) (“ ‘Ownership’... is not an essential ingredient . . . within the meaning of our burglary law .... All that the law require[s] [is] that the indictment should identify the [building] broken and entered with burglarious intent, and that it should show that it was not the [building] of the party so breaking and entering, but that it was occupied by the prosecutor.” (punctuation omitted)); accord Phillips v. State, 152 Ga. App. 671, 672 (1) (263 SE2d 480) (1979).

       See Ward, 304 Ga. App. at 524 (3); Edward, 261 Ga. App. at 59 (2); see also Weeks, 274 Ga. App. at 124-25 (1).

        See Jones v. State, 258 Ga. 25, 27 (1) (365 SE2d 263) (1988) (authorizing the jury to infer from the evidence that appellant lacked authority to enter the victim’s home even in the absence of direct evidence on that issue); Ursulita v. State, 307 Ga. App. 735, 737 (1) (706 SE2d 123) (2011) (“Circumstantial evidence can suffice to prove lack of authority for purposes of the burglary statute.”); see also Reese v. State, 308 Ga. App. 125, 126 (706 SE2d 623) (2011) (holding evidence sufficient to entitle a jury to infer that appellant, either directly or as a party to the crime, entered the storage garage without authority and with the intent to commit a theft); Williams v. State, 268 Ga. App. 384, 387 (1) (b) (601 SE2d 833) (2004) (holding that appellant’s forced entry into the victim’s residence authorized the jury to infer that he was without authority to be in the home).

        Henderson, 300 Ga. App. at 482 (3); see Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984).

        Strickland, 466 U. S. at 687 (III); see Angulo v. State, 314 Ga. App. 669, 672 (3) (725 SE2d 802) (2012).

        Id.

       As of the date of trial, Smarr had not been charged with a crime in the Haralson County case.

        See Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        See Watkins v. State, 289 Ga. 359, 362 (3) (a) (711 SE2d 655) (2011) (noting that an appellant “may not rely on hearsay or speculation” to demonstrate ineffective assistance); Sheppard v. State, 284 Ga. 775, 778 (2) (671 SE2d 830) (2009) (concluding that appellant failed to prove deficient performance by his trial counsel because he did not resolve a discrepancy in the evidence related to his allegation of error); Gant v. State, 313 Ga. App. 329, 332 (1) (b) (721 SE2d 913) (2011) (holding that appellant’s claim of ineffective assistance failed because he did not support his allegations with record evidence).

        Harris v. State, 291 Ga. 175, 177 (2) (a) (728 SE2d 178) (2012) (punctuation omitted).

        Angulo, 314 Ga. App. at 672 (3) (punctuation omitted).

        See Chance v. State, 291 Ga. 241, 247 (7) (b) (728 SE2d 635) (2012) (“Decisions about what questions to ask on cross-examination are quintessential trial strategy... and will rarely constitute ineffective assistance of counsel.” (citation and punctuation omitted)); Sims v. State, 317 Ga. App. 420, 424 (2) (731 SE2d 105) (2012) (“Trial tactics and strategy, however mistaken they may appear with hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (punctuation omitted)); Watts v. State, 304 Ga. App. 632, 635 (697 SE2d 272) (2010) (holding that counsel’s failure to impeach the victim’s credibility with various instances of fraud did not amount to ineffective assistance because, inter alia, “the degree to which an attorney chooses to cross-examine witnesses and the manner in which to attack their credibility fall within the ambit of trial tactics” (punctuation omitted)).

       Smarr also asserts that the information was improperly obtained without having provided the cellular-service provider with a copy of the court order authorizing the requested information. Smarr’s argument is belied by the record, however, which contains evidence of the subpoena directed to the cellular provider, the court order authorizing the subpoena, and documentary evidence that the cellular provider was presented with both.

        See 18 USC § 2703(c) (1) (B) (“Agovernmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity . . . obtains a court order for such disclosure....”); OCGA § 16-11-66.1 (a) (“Alaw enforcement officer, a prosecuting attorney, or the Attorney General may require the disclosure of stored wire or electronic communications, as well as transactional records pertaining thereto, to the extent and under the procedures and conditions provided for by the laws of the United States.”); In re Application of the United States, 620 F3d 304, 307-08 (I), 313 (II) (3d Cir. 2010) (noting that “there is no dispute that historical CSLI is a ‘record or other information pertaining to a subscriber... or customer,’ and therefore falls within the scope of § 2703 (c) (1),” and “CSLI from cell phone calls is obtainable under a § 2703 (d) order [which] does not require the traditional probable cause determination”); United States v. Flores, No. l:05-cr-558-WSD-JFK, 2007 WL 2904109, at *4 (I) (B) (5) (N.D. Ga., Sept. 27, 2007) (“Using cell site data to obtain a rough area of location for a target telephone is not a constitutional violation unless the information obtained pinpoints the target phone’s location to a place where the subject has a legitimate expectation of privacy,” which does not include public streets.).

        See United States v. Skinner, 690 F3d 772, 779 (II) (A) (6th Cir. 2012) (“Because . . . cell-site data is simply a proxy for the defendant’s visually observable location, and a defendant has no legitimate expectation of privacy in his movements along public highways,... the DEA agents did not conduct a search within the meaning of the Fourth Amendment.” (punctuation omitted)); Tracey v. State, 69 So3d 992, 995-96 (Fla. 2011) (recognizing that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another” and, thus, “no Fourth Amendment violation occurred” when CSLI was obtained to monitor appellant’s movement while he was on public roads (punctuation omitted)); see also United States v. Karo, 468 U. S. 705, 711-13 (2) (104 SC 3296, 82 LE2d 530) (1984); United States v. Knotts, 460 U. S. 276, 281-85 (II) (103 SC 1081, 75 LE2d 55) (1983).

        See Strickland, 466 U. S. at 687 (III); Henderson, 300 Ga. App. at 482 (3).

        See Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008) (“The failure to pursue a futile objection does not amount to ineffective assistance.”); see also Edwards v. State, 282 Ga. 259, 263 (8) (c) (646 SE2d 663) (2007).

        See Uniform Sup. Ct. R. 31.3 (B).

        See Hudson v. State, 271 Ga. 477, 479 (2) (521 SE2d 810) (1999) (“Generally in a criminal trial, proof that the defendant committed a distinct, independent, and separate offense is highly and inherently prejudicial, irrelevant and inadmissible, even if it is a crime of the same sort for which the defendant is being tried, unless there is some logical connection between the independent act and the crime for which the defendant is being tried, from which it can he said that proof of one tends to establish the other. The prosecutor seeking to introduce a defendant’s independent offense must establish in a pre-trial hearing, among other things, the similarity between the independent act and the crime for which the defendant is being tried.” (citations omitted)); see also Williams, 261 Ga. at 641-42 (2) (b).

        See Henderson, 300 Ga. App. at 482 (3); see Strickland, 466 U. S. at 687 (III).

        See Bright v. State, 314 Ga. App. 589, 595 (3) (725 SE2d 327) (2012) (appellant failed to establish prejudice related to any error in counsel’s failure to object to the admission of similar-transaction evidence in light of the strong evidence of his guilt); see also Ellis v. State, 316 Ga. App. 352, 364 (8) (c) (729 SE2d 492) (2012) (same); Moore v. State, 301 Ga. App. 220, 225 (3) (687 SE2d 259) (2009) (same).

       OCGA § 17-10-7 (c) provides as follows:
      [A]ny person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

        See Dobbs v. State, 180 Ga. App. 714, 715 (2) (350 SE2d 469) (1986) (holding that the convictions warranting the application of OCGA § 17-10-7 (c) must have occurred before the acts upon which the recidivist sentence is imposed).

       In between the original sentencing order and the final sentencing order, the trial court issued an order in which it sentenced Smarr to a total of thirty-five years — fifteen years in incarceration and twenty years on probation.

        Williams v. State, 273 Ga. App. 42, 46 (6) (614 SE2d 146) (2005) (punctuation omitted); see Wilford v. State, 278 Ga. 718, 720 (606 SE2d 252) (2004).

        Curry v. State, 248 Ga. 183, 185 (4) (281 SE2d 604) (1981); see United States v. Benz, 282 U. S. 304 (51 SC 113, 75 LE 354) (1931).

        See OCGA § 16-7-1. Compare OCGA § 42-8-60 (b) (“[Ujpon the court determining that the defendant is or was not eligible for sentencing [as a first offender], the court may enter an adjudication of guilt and proceed as otherwise provided by law.”); Wilford, 278 Ga. at 720 (holding that a defendant “who knowingly provides false information to the trial court in order to receive first offender treatment has no reasonable expectation that the resulting sentence is final” and may be subject to an enhanced sentence (punctuation omitted)).

        See Stulb v. State, 279 Ga. App. 547, 550-52(2) (631 SE2d 765) (2006) (holding that order modifying appellant’s ten-year sentence from one year to serve and nine years on probation to four years to serve and six years on probation was void after appellant had already begun serving sentence); Williams, 273 Ga. App. at 47 (6) (holding the trial court’s enhanced sentence was unauthorized and remanding the case to the trial court for resentencing).


source: Caselaw Access Project

author: Ellington, Chief Judge.

license: Public Domain

text:
    A12A1280.
    MAHONE v. THE STATE.
    (731 SE2d 797)
   Ellington, Chief Judge.

The Superior Court of Muscogee County accepted the guilty plea tendered by Herman Mahone to two counts of aggravated assault, OCGA § 16-5-21 (a) (2) (with a deadly weapon); and possession of a firearm during the commission of a crime against or involving the person of another, OCGA § 16-11-106 (b) (1). Mahone then filed a motion to withdraw his guilty plea. After a hearing, at which Mahone was represented by new counsel, the trial court denied his motion, and he appeals pro se. He contends that there was not a factual basis for his plea, that the trial court erroneously refused to replace his appointed counsel, and that his plea was not knowing and voluntary, due to the ineffective assistance of counsel and because he was taking mental health medication when he entered his plea. For the reasons explained below, we vacate and remand for a new hearing.

After sentence is pronounced, the decision whether to allow the withdrawal of a guilty plea lies within the sound discretion of the trial court, and this Court will not reverse the trial court’s decision absent a manifest abuse of that discretion. When the validity of a guilty plea is challenged, the State bears the burden of showing that the plea was voluntarily, knowingly, and intelligently made. The State may do this by showing through the record of the guilty plea hearing that (1) the defendant has freely and voluntarily entered the plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea. The trial court is the final arbiter of all factual issues raised by the evidence.

(Punctuation and footnotes omitted.) Jackson v. State, 299 Ga. App. 662, 662-663 (683 SE2d 623) (2009). While the State ultimately bears the burden of showing that a guilty plea was voluntarily, knowingly, and intelligently made, however,

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

(Citation and punctuation omitted.) Jackson v. State, 285 Ga. 840, 841 (2) (684 SE2d 594) (2009).

The record shows that Mahone’s written motion to withdraw his guilty plea did not specify the grounds for his motion. At the hearing on his motion to withdraw his guilty plea, Mahone’s new post-conviction counsel began by stating that Mahone felt that his original, appointed counsel had coerced him into pleading guilty, which would be shown by Mahone’s testimony. After swearing in Mahone, the judge questioned Mahone directly, asking how his trial counsel coerced him. Mahone responded that his attorney told him that a jury would find him guilty and that he would be sentenced to 30 to 50 years in prison. In the only instance during the hearing in which the State’s attorney spoke, the prosecutor mentioned that the State had filed a notice of intent to seek aggravation of punishment. When the judge expressed doubt that such advice could constitute coercion, Mahone tried to give other reasons he felt that his trial counsel had provided ineffective assistance, specifically that she refused to investigate whether there were any potentially helpful witnesses and that she refused to act on his disclosure that he believed he was incompetent to stand trial because of the psychiatric medication (Elavil) that he was taking. The judge expressed doubt that Elavil could impair a person’s judgment, then asked Mahone’s own counsel to direct him to the page in the plea hearing transcript that had “the magic question.” He read that question aloud, “ ‘has anyone forced you, threatened you or coerced you to cause you to plead guilty?’ ” and asked, “Defendant Mahone, what did you say?” Mahone conceded that he had responded “no” at the plea hearing. Without inquiring whether the State or Mahone had any further evidence, the judge abruptly terminated the hearing, saying, “This [motion to withdraw guilty plea] is totally without merit. Take an order denying it.”

Decided September 7, 2012.

The record as a whole shows that the judge ruled on Mahone’s motion without allowing his post-conviction counsel to articulate the grounds for his motion to withdraw his guilty plea, to examine Mahone, or to otherwise present evidentiary support for the motion. In addition, the record creates the appearance that the judge believed that Mahone’s motion need not be considered on the merits simply because Mahone had responded negatively during the plea hearing to a single “magic question.” Consequently, the record does not permit a meaningful appellate review of the denial of Mahone’s motion. Accordingly, we vacate the trial court’s order and remand for further proceedings, wherein Mahone has the opportunity, represented by counsel if desired, to present the grounds for his motion and any supporting evidence. See Manuel v. State, 289 Ga. 383, 386 (711 SE2d 676) (2011); Alvelo v. State, 288 Ga. 437, 439 (1) (704 SE2d 787) (2011); Planas v. State, 296 Ga. App. 51, 52 (1) (673 SE2d 566) (2009).

Judgment vacated and case remanded.

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

Herman Mahone, pro se.

Julia Fessenden Slater, District Attorney, Kim B. Hoffman, Assistant District Attorney, for appellee.

       Cf. Jackson v. State, 285 Ga. at 841-842 (2) (affirming the denial of a motion to withdraw a guilty plea based on the transcript of the court’s colloquy with the defendant at the plea hearing as well as the testimony of the defendant’s trial attorneys regarding their belief that the defendant had not been under the influence of any medication or intoxicant and their detailed advice to the defendant before the plea hearing about the rights that he would be waiving by entering a plea and the consequences of pleading guilty).


author: Ray, Judge.

text:
    A12A1131.
    BARBER v. THE STATE.
    (732 SE2d 125)
   Ray, Judge.

After a jury trial, Mario Barber was found guilty of possession of cocaine with the intent to distribute. He appeals the denial of his motion for a new trial, arguing that the trial court erred in denying his motion to suppress, that he received ineffective assistance of counsel, and that the evidence was insufficient to support his conviction. For the reasons that follow, we affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

So viewed, the evidence shows that an officer with the Newnan Police Department was patrolling the streets on the afternoon of November 30, 2009, when he noticed Barber walking in the roadway. The officer stopped his patrol car and stepped out of the vehicle, intending to instruct Barber to get out of the roadway and walk on the sidewalk. At that point, Barber said “I ain’t done nothing,” and took off running through a small wooded area. As the officer chased behind, he noticed Barber reach into his pocket and then drop a “baseball-size . . . clear looking bag.” The officer continued to follow Barber, but lost sight of him when Barber went around the corner of some apartments. A tenant told the officer that Barber had entered her apartment, and she gave the officer permission to search the home. As the officer entered the home, he observed Barber exiting through the side door. After another chase, the officer instructed Barber to stop running and get on the ground. Barber did not comply with the command, and so the officer subdued him with a taser. Barber then was handcuffed and taken into custody. The officer retrieved the bag dropped by Barber, which contained 19 individual bags of powder cocaine. Barber was searched, and $1,350 in various bills was found on his person.

1. Barber argues that the trial court erred in denying his motion to suppress both the evidence of the contraband and the money found on his person as the fruits of an unlawful search and seizure. We disagree.

(a) We first address whether the trial court erred in denying Barber’s motion to suppress the bag of cocaine that he tossed onto the wooded path while running away from the officer. Barber was in a state of flight when he discarded the cocaine he now seeks to suppress, and contrary to Barber’s assertions, “being chased is not tantamount to being ‘seized’ in violation of the Fourth Amendment.” Rather, contraband discarded before a suspect is seized or during flight is admissible as evidence, even if an issue exists as to whether the officers possessed reasonable suspicion of criminal activity. Accordingly, Barber’s abandonment of the contraband before he was seized required a finding that the cocaine was not the fruit of an illegal arrest.

(b) We next address whether the trial court erred in denying Barber’s motion to suppress the $1,350 found on his person at the time of arrest.

When reviewing the denial of a motion to suppress, “we construe the evidence most favorably to uphold the findings and judgment, and we review de novo the trial court’s application of the law to the undisputed facts. Additionally, we adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous.”

Georgia recognizes three tiers of police-citizen encounters: consensual encounters; brief investigatory stops that require reasonable suspicion; and arrests that require probable cause. A first-tier, consensual encounter provides no Fourth Amendment protection, and during such an encounter, an officer may approach a citizen, ask the citizen questions, and request identification “without any basis or belief that the citizen is involved in criminal activity, as long as the officer[ ] do[es] not detain the citizen or create the impression that the citizen may not leave.” In a second-tier encounter, even in the absence of probable cause, a police officer may “stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.” In order to do so, “the officer must have more than a subjective, unparticularized suspicion or hunch.” Rather, “the officer’s action must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”

Here, Barber argues that his encounter with the officer was a second-tier encounter, but that the officer had no particularized or objective reason to suspect that he was engaged in criminal activity and thus no reason to make an investigatory stop. However, even assuming that the stop was a second-tier encounter, the officer in the present case had a reasonable suspicion that Barber was violating the law by walking down the center of the roadway. After the officer pulled his patrol car over to instruct Barber to move to the sidewalk, Barber yelled “I ain’t done nothing wrong” and fled into the wooded area. At this point it was not merely Barber’s act of walking in the center of the road, but his unusual response combined with unprovoked flight that aroused the officer’s suspicions. Unprovoked flight, coupled with other suspicious circumstances, may give rise to reasonable suspicion sufficient to justify a second-tier stop. “[NJervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong flight — wherever it occurs — is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Also, Barber discarded the bag during the chase, which provides additional suspicion of criminal activity.

Thus, given the totality of the circumstances, we conclude that the officer was authorized to briefly detain Barber once he had caught up with him.

2. Barber contends that the trial court erred by denying his motion for new trial because he received ineffective assistance of counsel. He contends that his trial counsel was ineffective because (a) counsel failed to object to the prosecutor’s comments characterizing Barber as a drug dealer during opening statement, (b) counsel failed to object to the prosecutor’s questioning of an officer’s knowledge of the law, and (c) counsel failed to object to the prosecutor’s cross-examination of Barber.

To prevail on this claim, Barber “must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense.” In doing so, he has to show a reasonable probability existed that the result of his trial would have been different, but for his defense counsel’s deficient performance, and he also must overcome the strong presumption that the representation was effective. The question of ineffectiveness is a mixed one of both law and fact: “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

(a) Barber first asserts that his trial counsel rendered ineffective assistance when he failed to object to a portion of the prosecutor’s opening argument. Specifically, Barber objects to the prosecutor’s first statement: “[t]his is a simple case, and it’s a simple case about a drug dealer, a drug dealer who makes money off of other peoples’ [sic] addiction.” According to Barber, this statement was made with the improper purpose of inflaming the minds of the jurors against defendant.

An opening argument is intended “to give the jury and the court an outline of the evidence that the party anticipates presenting. It is not time for an attorney to argue the case.” Even if we were to assume that Barber’s trial counsel deficiently performed by failing to object to this statement, there was ample evidence supporting Barber’s conviction and the trial court instructed the jury not to consider the opening statement as evidence. Accordingly, Barber cannot meet his burden of proving that prejudice resulted from such performance.

(b) Barber contends that his trial counsel performed deficiently by failing to object to the State asking Officer Marcos Gonzales to “tell the jury what’s the difference between simple possession and possession with intent to distribute?” At the hearing on Barber’s motion for new trial, trial counsel testified that he did not object because “our theory was [that Barber] didn’t possess the drugs. Whether there was possession with intent to distribute or straight possession, we wanted to focus on that he never possessed anything.” “As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” In light of trial counsel’s reasonable strategy in failing to object, Barber cannot demonstrate deficient performance on that basis.

(c) Barber contends that his trial counsel was ineffective because he failed to object to the State asking him on cross-examination, “[y]ou’ve held cocaine before, haven’t you?” Barber argues that this comment was inappropriate because it was said prior to the State impeaching Barber with prior convictions. At the hearing on Barber’s motion for a new trial, trial counsel stated that he did not object to this question because his strategy with regard to Barber’s prior drug convictions was to acknowledge that while Barber had been involved with drugs in the past, he was an honest man and had pled guilty to those offenses, and that Barber had not pled guilty in the present case because the cocaine found on the wooded path did not belong to him. As stated above, trial counsel’s reasonable trial strategy does not constitute ineffective assistance of counsel, and although another trial defense counsel may have followed a different strategy, this does not mean that Barber’s trial counsel’s strategy constituted the denial of effective assistance of counsel.

3. In his final enumeration of error, Barber contends that the evidence summarized above was insufficient to sustain his conviction for possession of cocaine with the intent to distribute.

OCGA § 16-13-30 (b) provides in pertinent part that it is unlawful to possess a controlled substance with the intent to distribute it. The evidence that small baggies of cocaine were found in a large plastic bag on the ground, where Barber had been observed dropping what appeared to the officer to be a ‘baseball-size . . . clear looking bag,” permitted a rational trier of fact to infer that Barber had been in possession of the cocaine.

Although the State is required to show more than mere possession to prove that Barber intended to distribute the cocaine, “[n]o bright line rule exists regarding the amount or type of evidence sufficient to support a conviction for possession with intent to distribute.” Rather, the State “may show intent to distribute in many ways, including expert testimony that the amount of contraband possessed was inconsistent with personal use, evidence showing the manner.of packaging, and the possession of certain amounts or denominations of currency.” “[T]he issue of intent is peculiarly a question of fact for jury determination.” Further,

even if not formally admitted as an expert, a police officer may give his opinion as to whether the amount or value of the contraband is consistent with distribution, if the [Sjtate lays a foundation for the opinion by eliciting testimony about the officer’s experience and training in drug enforcement.

Here, ample evidence showed Barber’s intent to distribute the cocaine. Officer Gonzales, who has been trained and experienced in the illegal drug distribution industry, testified that the fact that the ten grams of cocaine found in the large plastic bag was individually packaged into nineteen small bags as if for resale, combined with the fact that a large sum of cash was found on Barber, showed an intent to distribute and not simple possession. The above evidence is sufficient to sustain Barber’s conviction.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

Decided September 11, 2012.

Brandon Lewis, for appellant.

Peter J. Skandalakis, District Attorney, Timothy M. Marlow, Assistant District Attorney, for appellee.

       OCGA § 16-13-30 (b).

       (Footnote omitted.) Carson v. State, 314 Ga. App. 515 (724 SE2d 821) (2012).

       (Citations omitted; emphasis in original.) Smith v. State, 217 Ga. App. 680 (2) (458 SE2d 704) (1995).

        Watson v. State, 247 Ga. App. 498 (544 SE2d 469) (2001).

       Id. at 499.

       (Footnote omitted.) Thompson v. State, 289 Ga. App. 661 (658 SE2d 122) (2007).

       See State v. Burks, 240 Ga. App. 425, 426 (1) (523 SE2d 648) (1999).

       (Citation and punctuation omitted.) Id.

       (Citation and punctuation omitted.) Id.

       (Punctuation and footnote omitted.) Ewumi v. State, 315 Ga. App. 656, 658(1) (727 SE2d 257) (2012).

       (Punctuation and footnote omitted.) Id. at 658-659 (1).

       OCGA § 40-6-96 (b) and (c) require that when a sidewalk or shoulder is available, a pedestrian must walk upon the sidewalk or shoulder of the road, rather than upon the roadway itself. There are exceptions, but they are not applicable here.

        Crowley v. State, 267 Ga. App. 718, 720 (601 SE2d 154) (2004).

         (Citations and punctuation omitted.) Id.; Illinois v. Wardlow, 528 U. S. 119, 124 (120 SC 673, 145 LE2d 570) (2000). Accord State v. Devine, 276 Ga. App. 159, 161 (622 SE2d 854) (2005).

       See Crowley, supra at 721; Devine, supra.

        Suggs v. State, 272 Ga. 85, 87 (4) (526 SE2d 347) (2000), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Baggett v. State, 257 Ga. 735 (1) (363 SE2d 257) (1988).

        Clarington v. State, 178 Ga. App. 663, 667 (5) (344 SE2d 485) (1986).

        Suggs, supra at 88 (4).

       (Punctuation and footnotes omitted.) Billings v. State, 251 Ga. App. 432, 433 (1) (558 SE2d 10) (2001) (statement to jurors that they were participating in the war did not serve a legitimate purpose and may serve to “inflame the minds of the jury against the defendant”) (punctuation omitted).

       See Division 3, infra.

        Phillips v. State, 285 Ga. 213, 219 (5) (a) (675 SE2d 1) (2009).

       (Citation and punctuation omitted.) Grier v. State, 273 Ga. 363, 365 (4) (541 SE2d 369) (2001).

        Rawls v. State, 315 Ga. App. 891, 896 (4) (a) (730 SE2d 1) (2012).

        Heard v. State, 177 Ga. App. 802, 804 (5) (341 SE2d 459) (1986).

       See OCGA § 16-13-26 (1) (D) (identifying cocaine as a Schedule II controlled substance).

       See Smith v. State, 285 Ga. App. 399, 400 (1) (646 SE2d 499) (2007) (officer’s observation of defendant throwing crack pipe to ground, combined with testimony that pipe tested positive for presence of cocaine, provided ample direct evidence that defendant was in possession of cocaine).

       (Citation and punctuation omitted.) Cotton v. State, 300 Ga. App. 874, 876 (686 SE2d 805) (2009).

       (Footnote omitted.) Helton v. State, 271 Ga. App. 272, 275 (b) (609 SE2d 200) (2005).

       (Footnote omitted.) Hughes v. State, 297 Ga. App. 217, 218 (676 SE2d 852) (2009).

       (Citations omitted.) Haywood v. State, 301 Ga. App. 717, 719 (1) (689 SE2d 82) (2009).

       See Maddox v. State, 227 Ga. App. 602, 603 (1) (490 SE2d 174) (1997). Compare Hicks v. State, 293 Ga. App. 830, 831-833 (668 SE2d 474) (2008) (court found evidence supported the hypothesis that the defendant was a user rather than a dealer when the only evidence of intent to distribute was that defendant possessed a pill bottle containing an unidentified number of cocaine pieces and an investigator testified that storing drugs in such disposable containers indicated an intent to sell).


author: Boggs, Judge

text:
    A12A0843.
    INGRAM v. THE STATE.
    (732 SE2d 456)
   Boggs, Judge

After a jury trial, William Ingram was convicted of two counts of felony obstruction of an officer and one count of interference with government property. Following the denial of his amended motion for new trial, Ingram appeals, asserting that the trial court erred in failing to charge the jury on misdemeanor obstruction as a lesser included offense of the felony obstruction counts, and that his trial counsel was ineffective for failing to request the same charge in writing. We find no error and therefore affirm.

The State presented evidence showing that Ingram appeared to be asleep on the floor of his holding cell in the county jail when Deputy Cash placed another individual into the cell with him. Immediately after returning to the control area of the jail, Deputy Cash heard water running and returned to Ingram’s cell, where he observed Ingram clogging the toilet and making it overflow. When Deputy Cash and another deputy approached the cell, Ingram starting throwing his shoe into the light fixture and ceiling tiles above his head.

After several other officers arrived to help, Deputy Cash instructed Ingram to halt, turn around, and put his hands on the wall. Ingram complied, the other cell occupants were removed, and Ingram was placed in handcuffs with his hands behind his back. Ingram refused to cooperate with the officers’ attempts to place him in a different holding cell. When the officers tried to forcibly place him in the cell, Ingram kicked Deputy Cash in the shin and another deputy in the groin. The officers then subdued Ingram by using a Taser before placing him in the cell.

Based upon this conduct, the State charged Ingram with four felony counts of obstruction of an officer (OCGA § 16-10-24) and interference with government property (OCGA § 16-7-24). The State later agreed to nolle prosequi two of the obstruction counts. Defense counsel did not request a charge on the lesser included offense of misdemeanor obstruction of an officer in writing before trial or orally during the charge conference held after all of the evidence had been presented. In the motion for new trial hearing, defense counsel testified that he made a strategic decision not to request such a charge, adopting “an all or nothing approach” to the trial. Defense counsel explained that he adopted this strategy because, in his opinion, the videotape of the entire incident played for the jury during trial did not show Ingram kicking the officers. The jury found Ingram guilty of the two remaining counts of felony obstruction and one count of interference with government property.

1. Ingram contends that the trial court erred by failing to charge the jury sua sponte on a lesser included offense — misdemeanor obstruction of an officer. “Absent a written request for a charge on a lesser included offense, made at or before the close of the evidence, the failure to so charge is not error.” (Citations, punctuation and footnote omitted.) Smith v. State, 294 Ga. App. 579, 581 (3) (669 SE2d 530) (2008). And, to the extent we are required to evaluate whether plain error resulted from the trial court’s failure to charge on the lesser included offense under OCGA § 17-8-58 (b), we find that none exists. See State v. Kelly, 290 Ga. 29, 32-33 (2) (a) (718 SE2d 232) (2011) (plain error standard of review); Owens v. State, 288 Ga. App. 771, 774 (2) (655 SE2d 244) (2007) (no error resulted from trial court’s failure to charge on lesser included charge when trial counsel made strategic decision against lesser included charge based upon “all or nothing” defense strategy).

For these reasons, the trial court did not err by failing to charge the jury on the lesser included offense of misdemeanor obstruction of an officer.

2. In his remaining enumeration of error, Ingram contends that he received ineffective assistance because his trial counsel failed to request a charge on the lesser included offense of misdemeanor obstruction. In order to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate the following:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.

(Citation and punctuation omitted.) Miller v. State, 285 Ga. 285 (676 SE2d 173) (2009). The appropriate test for prejudice is whether a reasonable probability exists “that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 286. “If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.” (Citations and punctuation omitted.) Evans v. State, 288 Ga. 571, 576 (7) (707 SE2d 353) (2011).

Decided September 13, 2012.

Wendell R. Adams, for appellant.

Fredric D. Bright, District Attorney, Allison T. Mauldin, Assistant District Attorney, for appellee.

In this case, Ingram cannot meet his burden of proving deficient performance by his trial counsel. “Decisions as to which charges will be requested generally fall within the realm of trial tactics and strategy.” (Citation, punctuation and footnote omitted.) Cruz v. State, 305 Ga. App. 805, 812 (3) (e) (700 SE2d 631) (2010). And strategic decisions “provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them.” (Citations and punctuation omitted.) King v. State, 282 Ga. 505, 507 (2) (a) (651 SE2d 711) (2007). Because trial counsel made a reasonable decision to pursue an all-or-nothing defense strategy based upon his review of the videotape, we find no merit in Ingram’s ineffective assistance of counsel claim. See Nguyen v. State, 296 Ga. App. 853, 856-858 (2) (a) (676 SE2d 246) (2009); Leonard v. State, 279 Ga. App. 192, 195 (2) (b) (630 SE2d 804) (2006).

Judgment affirmed.

Doyle, P. J., and Andrews, J., concur.


author: Boggs, Judge.

text:
    A12A0900.
    SUMMIT INVESTMENT MANAGEMENT ACQUISITIONS I, LLC v. GREG A. BECKER ENTERPRISES, LTD. et al.
    (732 SE2d 286)
   Boggs, Judge.

In the second appearance of these parties before this court, Summit Investment Management Acquisitions I, LLC (“Summit”) appeals from the trial court’s order dismissing its request for confirmation of a second foreclosure sale of property owned by Greg A. Becker Enterprises, Ltd., Greg A. Becker, Granite Mountain Motor Sports, Inc., LKB Enterprises, Inc., and Stone Mountain Motor Sports, Inc. (collectively “Becker”). It contends that the trial court erred by concluding that a supersedeas arose from Becker’s appeal of the trial court’s order denying confirmation of its first foreclosure sale and requiring a second sale of the subject property. See Greg A. Becker Enterprises v. Summit Investment Management Acquisitions I, LLC, 314 Ga. App. 721 (725 SE2d 841) (2012) "Summit I”). For the reasons explained below, we agree and reverse.

“We review the trial court’s ruling on a motion to dismiss under the de novo standard of review.” (Citations and punctuation omitted.) Durrah v. State Farm Fire & Cas. Co., 312 Ga. App. 49 (717 SE2d 554) (2011). As explained in Summit I:

The [first] foreclosure sale occurred on August 3, 2010. There were no other bidders at the foreclosure sale, and the property was knocked down and sold to Summit for $1.1 million. Since the foreclosure sale did not bring the amount of debt owedjf] on September 1, 2010, Summit timely filed an application for confirmation and reported the sale to the trial court pursuant to OCGA § 44-14-161 (a).
Following the hearing, the trial court entered a detailed final order with findings of fact and conclusions of law. The trial court specifically found that the testimony of Becker’s appraiser was more reasonable and credible than that of Summit’s appraisers. The trial court cited the failure of Summit’s appraisers to gain access inside the property in the performance of their valuation, but further determined that the failure did not establish a lack of good faith. The trial court found that Summit’s lack of access was caused by the contentious relationship between the parties. In light of the disparity between the appraisal valuations, and its determination that the $1.425 milhon valuation of Becker’s appraisal was more credible, the trial court found that the property failed to sell for its true market value at the foreclosure sale. The trial court therefore denied confirmation of the foreclosure sale and concluded that good cause had been shown to order a resale of the property in accordance with OCGA § 44-14-161 (c).

314 Ga. App. at 722-723. This order was entered on March 8, 2011. Despite prevailing on the valuation issue and succeeding in obtaining a court order denying Summit’s first confirmation action, Becker appealed on March 21, 2011, contending “that the trial court (1) abused its discretion in ordering a resale, (2) applied an incorrect legal standard in reaching its decision, and (3) erred in denying the post-hearing motion to reopen the evidence.” Summit I, supra.

In reliance on the trial court’s order of March 8, 2011 denying confirmation and ordering a resale of the property, Summit conducted a second foreclosure sale of the property on May 3, 2011, resulting in a sale to Summit for $2 million. On June 1, 2011, Summit applied to the trial court for confirmation of the second foreclosure sale. Becker moved to dismiss the second application for confirmation, contending that its notice of appeal and the payment of costs in its first confirmation appeal created a supersedeas that prevented the superior court from confirming the second foreclosure sale of the property.

After hearing argument by counsel in a telephone conference, the trial court issued a written order on November 9, 2011 dismissing Summit’s second confirmation application based on its conclusion that a supersedeas arose under OCGA § 5-6-46 (a). Summit filed a timely notice of appeal to this court. On March 12, 2012, while Summit’s appeal was pending, this court affirmed the trial court’s decision in Becker’s appeal from the order denying confirmation and allowing a resale. Summit I, supra.

Summit contends in the appeal now before us that the trial court erred by dismissing its second request for confirmation because a supersedeas cannot be created under OCGA § 5-6-46 (a) unless all trial court costs are paid. See Lunsford v. DeKalb Medical Center, 263 Ga. App. 394, 395 (587 SE2d 859) (2003) (trial court retained jurisdiction after notice of appeal filed because all trial court costs had not been paid); Lott v. Arrington & Hollowell, P.C., 258 Ga. App. 51, 54 (2) (a) (572 SE2d 664) (2002) (no supersedeas created because record showed $88 trial court fee had not been paid). Based upon evidence showing all trial court costs were not paid, Summit argues that no supersedeas was created. While this issue is arguably moot based upon our decision to affirm the trial court in Summit I, supra, we will nonetheless address whether the provisions of OCGA § 5-6-46 (a) subjected Summit’s second confirmation request under OCGA § 44-14-161 (c) to dismissal.

First, we must keep in mind that “[a] petition for confirmation of a sale is not a ‘suit’ but merely an application to the judge of the superior court” in which no judgment is entered against the debtor and no title to land is determined. (Citations and punctuation omitted.) Vlass v. Security Pacific Nat. Bank, 263 Ga. 296, 297 (1) (430 SE2d 732) (1993) (merely an application to superior court); Wall v. Fed. Land Bank, 240 Ga. 236, 237 (1) (240 SE2d 76) (1977) (no judgment or adjudication of title results from foreclosure confirmation). Indeed, the Supreme Court of Georgia has expressly held that “an application for confirmation is not a ‘complaint’ which initiates a ‘civil action’ in the superior court. Even though an application to confirm a foreclosure sale is a special statutory proceeding, it is not a civil suit in the ordinary meaning of that term.” (Citations and punctuation omitted; emphasis in original.) Vlass, supra, 263 Ga. at 297. Instead, “[t]he only purpose of the confirmation statute is to subject the creditor’s potential deficiency claim to the condition that the foreclosure sale under power be given judicial approval.” (Citation and punctuation omitted.) Id.

Decided September 13, 2012.

Schreeder, Wheeler & Flint, Debbie A. Wilson, Robert H. Snyder, Jr., for appellant.

Thompson, OBrien, Kemp & Nasuti, Aaron M. Kappler, for appellees.

OCGA § 5-6-46 (a), on the other hand, provides: “In civil cases, the notice of appeal filed as provided in Code Sections 5-6-37 and 5-6-38 shall serve as supersedeas upon payment of all costs in the trial court by the appellant and it shall not be necessary that a supersedeas bond or other form of security be filed.” (Emphasis supplied.) Thus, by its express terms, this statute applies only to “civil cases,” not foreclosure confirmation proceedings under OCGA § 44-14-161 (a). As a result, the trial court erred by dismissing Summit’s second confirmation action based upon the authority of OCGA § 5-6-46 (a).

Judgment reversed.

Doyle, P. J., and Andrews, J., concur.

       The balance owed was $3,403,964.92. Summit I, supra, 314 Ga. App. at 722.

       “[I]f an issue is capable of repetition yet evades review, we do not view that issue as moot. This is true for those matters in which there is intrinsically insufficient time to obtain judicial relief for a claim common to an existing class of sufferers.” (Citation, punctuation and footnote omitted.) Birchby v. Carboy, 311 Ga. App. 538, 540 (2) (716 SE2d 592) (2011).


text:
    A12A0944, A12A1101.
    THE STATE v. CURRY; and vice versa.
    (732 SE2d 459)
   Boggs, Judge.

These cases were consolidated for purposes of appeal. In Case No. A12A1101, Terrance Curry appeals from the trial court’s denial of his “Motion to Dismiss Indictment for Pre-indictment Delay,” and in Case No. A12A0944, the State appeals from the grant of Curry’s “Motion to Dismiss Indictment for Delay in Prosecution.” For the following reasons, we vacate and remand in both cases.

The record reveals that Curry was convicted of statutory rape in 2002 and was sentenced to nine years’ probation. On November 30, 2006, Curry was arrested for aggravated assault stemming from a July 2006 incident, was granted bond, and then was released on February 5, 2007. In March 2007, Curry was incarcerated after his probation was revoked for the failure to register as a sex offender as required by his 2002 sentence for statutory rape. On November 21, 2008, nine days before he was to be released from custody on the statutory rape charge, the State indicted Curry for aggravated assault and other crimes stemming from the 2006 incident. He was taken into custody on November 29, 2008, the same day he was released on the statutory rape sentence.

On December 3, 2008, Curry moved to dismiss the indictment against him for pre-indictment delay. He was arraigned on December 15,2008, and pled not guilty. Curry was granted bond and released on February 3, 2009. On August 11, 2011, Curry moved to dismiss the indictment against him for “delay in prosecution.” Following a hearing on both of Curry’s motions to dismiss, the trial court, on September 21, 2011, denied Curry’s motion to dismiss for pre-indictment delay, but granted his motion to dismiss for delay in prosecution. In Case No. A12A0944, the State appeals from the grant of Curry’s motion to dismiss for delay in prosecution, and in Case No. A12A1101, Curry appeals from the denial of his motion to dismiss for preindictment delay.

Case No. A12A0944

The State argues that the trial court erred in concluding that Curry was denied his Sixth Amendment right to a speedy trial.

The principles that guide a court in its consideration of whether a delay in bringing an accused to trial works a deprivation of the right to a speedy trial are set out in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), and Doggett v. United States, 505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992).

(Punctuation omitted.) State v. Brown, 315 Ga. App. 544, 544-545 (726 SE2d 500) (2012). “In determining whether the Sixth Amendment right to speedy trial has been violated, courts consider 1) the length of the delay, 2) the reason for the delay, 3) the defendant’s assertion of the right to a speedy trial, and 4) whether the defendant was prejudiced by the delay.” (Citations omitted.) Wooten v. State, 262 Ga. 876, 878 (2) (426 SE2d 852) (1993). With these four factors in mind, “the question is whether the trial court abused its discretion in ruling that the defendant’s speedy trial rights were . . . violated.” (Citation and punctuation omitted.) Lambert v. State, 302 Ga. App. 573, 575 (692 SE2d 15) (2010).

1. Presumptive prejudice.

First, a court must determine whether the delay “has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay, since, by definition, (the accused) cannot complain that the government has denied him a ‘speedy’ trial if it has, in fact, prosecuted his case with customary promptness.” Doggett, [supra]. If the delay passes this threshold test of “presumptive prejudice,” then the Barker inquiry is triggered. The delay is then considered a second time by factoring it into the prejudice prong of the Barker analysis, with “the presumption that pretrial delay has prejudiced the accused intensifying) over time.”

(Citations and punctuation omitted.) Wilkie v. State, 290 Ga. 450, 451 (721 SE2d 830) (2012). As the trial court ruled, the delay here of far more than one year raises a threshold presumption of prejudice requiring the application of the Barker-Doggett balancing test. See Stewart v. State, 310 Ga. App. 551, 553 (1) (713 SE2d 708) (2011).

2. The Barker-Doggett factors.

(a) Length of the delay. “The pretrial delay is measured from the accused’s arrest, indictment, or other formal accusation, whichever comes first, to the trial or, if the accused files a motion to dismiss the indictment, until the trial court denies the motion.” (Citation and punctuation omitted.) Moore v. State, 314 Ga. App. 219, 220 (723 SE2d 508) (2012). Curry was first arrested for the July 2006 incident on November 30, 2006, and the ruling on the motion to dismiss was filed on September 2, 2011. Therefore, counting from Curry’s November 2006 arrest, the total delay here is approximately 57 months, which is uncommonly long, and as such, is a factor to be weighed against the State. See Phan v. State, 290 Ga. 588, 593 (1) (a) (723 SE2d 876) (2012) (more than four-year delay weighs against the State); see State v. Pickett, 288 Ga. 674 (2) (c) (1) (706 SE2d 561) (2011) (uncommonly long five-and-a-half-year delay weighs against the State); Stewart, supra, 310 Ga. App. at 554 (2) (a) (pretrial delay of over five years uncommonly long and weighs against the State).

Under its analysis of the length of the delay, the trial court held that the 57-month delay should be weighed heavily against the State because the State waited two years to indict Curry and only did so after discovering that he would be released from custody the following week. The court therefore “conflated its consideration of the length of the delay factor with its consideration of the reason for the delay factor under Barker.” Goddard v. State, 315 Ga. App. 868, 871 (2) (a) (729 SE2d 397) (2012). And in doing so, the court only considered two years of the 57-month delay. See id. (court neglected to consider entire time of pretrial delay).

(b) Reason for the delay. The parties agree that about four months of the delay was due to Curry’s counsel’s leaves of absence. But with regard to the remaining 53 months, the trial court found that the State “strategically delayed the prosecution of the case in order to obtain a tactical advantage over the defense. . . . The State indicted the case that date and sought a Grand Jury warrant for [Curry] in order to prevent him from being released from custody.” But even assuming the State deliberately indicted Curry days before his release from custody on other charges in order to keep him in custody, such action does not explain the State’s delay in bringing the case to trial once Curry was indicted. The State offered no explanation concerning the delay in prosecuting the case, and there was no evidence of a deliberate attempt to delay prosecution in order to hamper Curry’s defense or to gain a tactical advantage. Because the trial court only considered the pre-indictment portion of the delay in its analysis rather than the entire delay, it erred in its consideration of this factor. See Goddard, supra, 315 Ga. App. at 871 (2) (a).

(c) Assertion of the right to a speedy trial. The record reveals that on December 3, 2008, twelve days after Curry was indicted and four days following his detention on the indictment, Curry filed a motion for pre-indictment delay in which he asserted his right to a speedy trial. See State v. Porter, 288 Ga. 524, 528 (2) (c) (3) (706 SE2d 636) (2011) (defendant may assert constitutional speedy trial right through a motion to dismiss asserting a violation of that right). The trial court found that Curry “asserted his constitutional right to a speedy trial by filling his motion to dismiss for pre-indictment delay before arraignment and within a week of his arrest on the grand jury warrant.” The court concluded that Curry “asserted his right to a speedy trial in due course.”

The State argues that the trial court erred in concluding that Curry timely asserted his demand for a speedy trial because Curry did not assert the right after he was arrested in 2006 and failed to file a statutory demand for speedy trial after he was indicted. Although a statutory demand for speedy trial pursuant to OCGA § 17-7-170 is not required in order to prevail on a speedy trial claim on constitutional grounds, see State v. White, 282 Ga. 859, 862 (2) (c) (655 SE2d 575) (2008), our courts have held that “[a] defendant’s pre-indictment silence can weigh heavily against him.” (Citations and punctuation omitted.) State v. Auerswald, 198 Ga. App. 183, 185 (3) (401 SE2d 27) (1990). While Curry asserted his right to a speedy trial within days of his indictment and second arrest, the trial court made no ruling with regard to Curry’s 24-month pre-indictment silence. The trial court therefore erred in its consideration of this factor. See, e.g., Porter, supra, 288 Ga. at 528-529 (2) (c) (3) (trial court omitted from its analysis defendant’s assertion of right more than eight years after his arrest and almost eight years after re-indictment).

(d) Prejudice. The trial court ruled that because the first three factors weigh against the State, “there is no need to inquire as to the fourth factor of prejudice.” The court nevertheless concluded that Curry suffered prejudice because he

was incarcerated twice on the charges contained in the indictment — the first time for 27 days and the second time for two months and six days after having been told he would be released from prison and being literally stopped at the gate. [Curry] was terminated from two jobs after finding employment because of the pending indictment. He suffered financial hardship beyond the level ordinarily suffered by persons accused of crimes, simply because the State failed to bring the case forward in a timely manner.

“The types of prejudice associated with an unreasonable delay before trial include oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the (accused’s) defense will be impaired by dimming memories and loss of exculpatory evidence.” (Citation and punctuation omitted.) Pickett, supra, 288 Ga. at 677 (2) (c) (4). The most serious form of prejudice is the last, because the inability of the defendant to prepare his case adequately “skews the fairness of the entire system.” (Citation and punctuation omitted.) Id.

With regard to the first type of prejudice — oppressive pretrial incarceration, the court found that Curry suffered prejudice because “he was incarcerated twice on the charges contained in the indictment — the first time for 27 days and the second time for two months and six days.” But the Supreme Court of Georgia has held that incarceration for only four or five months within a period of nearly six years was not oppressive. See Smith v. State, 284 Ga. 17, 20 (2) (663 SE2d 142) (2008). The trial court also found that Curry had been terminated from two jobs because of the pending indictment. But the court made no mention of Curry’s testimony that within one month of the second termination, he obtained employment as a machine operator and was still employed at the time of the hearing. Moreover, the court made no finding with regard to the third and most serious type of prejudice — whether Curry’s defense would be impaired as a result of the State’s delay.

3. As explained in Porter, supra,

[a] trial court exercises substantial discretion in applying the Barker[-Doggett\ balancing test, and its ultimate judgment is reviewed on appeal only for abuse of that discretion. However, where ... the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished.

(Citation and punctuation omitted.) Porter, supra, 288 Ga. at 533 (2) (e). As the Supreme Court of Georgia has most recently explained, where, as here, the trial court could not properly balance the Barker factors, this court cannot affirm the trial court’s judgment. Id. at 534 (2) (e). In this case, the trial court could not properly weigh the factors because it did not consider the entire length of the delay and the reasons for all portions of the delay, improperly considered hearsay, conflated the reason for the delay with the length of the delay, failed to consider Curry’s pre-indictment silence, improperly ruled that it was not required to consider the prejudice prong of the BarkerDoggett test, and nevertheless improperly analyzed the prejudice prong. We therefore vacate the trial court’s order and remand this case for the court to again exercise its discretion in using “properly supported factual findings and the correct legal analysis, reflected in an adequate written order.” (Citations omitted.) Id.; see also Pickett, supra, 288 Ga. at 680 (4) (d).

Case No. A12A1101

4. Curry argues that the trial court erred in finding that his rights to “Due Process and Speedy Trial” were not violated. He contends that the test for such a violation requires the trial court to determine (1) if the delay caused actual prejudice to his defense, and (2) whether the delay was due to the deliberate action by the State to gain a tactical advantage. The trial court employed this test in analyzing Curry’s motion to dismiss for pre-indictment delay. But the test employed by the trial court and argued by Curry in his appeal is the two-part test used to determine if a defendant’s due process rights under the Fifth and Fourteenth Amendments were violated by the delay between the time of the crime and the time of the arrest or indictment. See Manley v. State, 281 Ga. 466, 467 (640 SE2d 9) (2007).

Both the United States and Georgia Constitutions grant defendants in criminal cases a right to a speedy trial, U. S. Const. Amend. VI; 1983 Ga. Const. Art. I, Sec. I, Para. XI (a), and a delay following arrest or indictment may violate that right. But different considerations apply when the delay occurs before an arrest or indictment. The Sixth Amendment does not guarantee a right to a speedy arrest. However, an inordinate delay between the time a crime is committed and the time a defendant is arrested or indicted may violate due process guarantees under the Fifth and Fourteenth Amendments. To find a due process violation where a delay precedes arrest and indictment, courts must find 1) that the delay caused actual prejudice to the defense, and 2) that the delay was the product of deliberate action by the prosecution designed to gain a tactical advantage.

(Citations and punctuation omitted; emphasis in original.) Billingslea v. State, 311 Ga. App. 490, 492 (1) (716 SE2d 555) (2011).

Curry complains of the delay from his first arrest to indictment and from indictment to the ruling on his motion to dismiss. He does not complain of an “inordinate delay between the time a crime [was] committed and the time [he was] arrested or indicted.” Billingslea, supra, 311 Ga. App. at 492 (1). Curry’s claim of pre-indictment delay therefore alleges a violation of his Sixth Amendment right to a speedy trial which is properly analyzed under the Barker-Doggett test. See Wilkie, supra, 290 Ga. at 450-451 (examining alleged denial of constitutional right to speedy trial under Barker-Doggett test beginning from arrest where defendant arrested soon after crime, released on bond, and indicted four years later); compare Bunn v. State, 284 Ga. 410, 411-412 (1) (667 SE2d 605) (2008) (analysis of Fifth Amendment right to due process where three-year delay between crime and indictment). “The constitutional right to a speedy trial attaches on the date of the arrest or when formal charges are initiated, whichever first occurs.” (Citation omitted.) State v. Thaxton, 311 Ga. App. 260, 263 (1) (715 SE2d 480) (2011). And “[a]t the time of arrest, a suspect becomes an ‘accused’ and the right to a speedy trial under the Sixth Amendment begins running.” (Citations and punctuation omitted.) State v. Hight, 156 Ga. App. 246 (274 SE2d 638) (1980).

Decided September 13, 2012.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellant.

Jennifer S. Hanson, for appellee.

Because the trial court improperly analyzed Curry’s claim for pre-indictment delay as a due process violation and employed the wrong test in doing so, we vacate its ruling on Curry’s motion to dismiss for pre-indictment delay. While it appears that the trial court addressed Curry’s complaints concerning pre-indictment delay in its ruling granting Curry’s motion to dismiss for the State’s delay in prosecution, it did so improperly as we have held in Case No. A12A0944. We therefore remand this case and direct the trial court to consider both Curry’s claim for pre-indictment delay and his claim for delay in prosecution under the appropriate standard set forth in Barker, supra, and Doggett, supra, for an alleged violation of the federal and state constitutional right to a speedy trial.

Judgments vacated and cases remanded.

Doyle, P. J., and Andrews, J., concur.

       The State also argues that the trial court erred in considering an “in-house” memorandum which outlines the underlying facts of the 2006 incident and states further: “[Curry] will get out on the 29th of November 2008, he has never been prosecuted on these charges, [the victim] wants to prosecute and will be here ... to testify.” The State contends that the memorandum was hearsay and therefore should not have been considered by the trial court. We agree. Neither the author nor the parties named in the document testified at the hearing. It was therefore inadmissible nonprobative hearsay. Jones v. State, 284 Ga. 320, 321 (1), 323 (2) (667 SE2d 49) (2008). We note that while the court stated that this document was “in the clerk’s file,” it is not part of the record here on appeal.

       The trial court cited Doggett, supra, and Ruffin v. State, 284 Ga. 52 (663 SE2d 189) (2008), for this proposition, but neither case supports the court’s conclusion. Ruffin cites Doggett, which holds only that “consideration of prejudice is not limited to the specifically demonstrable, and... affirmative proof of particularized prejudice is not essential to every speedy trial claim.” 505 U. S. at 655 (III) (A). See Ruffin, supra, 284 Ga. at 64-65 (2) (b) (iv). It is well settled that the trial court must balance all four factors. Porter, supra, 288 Ga. at 526 (2) (a). As explained in Barker, supra, “[w]e regard none of the four factors ... as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together...; courts must still engage in a difficult and sensitive balancing process.” (Footnote omitted.) 407 U. S. at 533 (IV). We note that in Porter, supra, the Supreme Court of Georgia declined to adopt a test urged by the State that unless all other factors weigh heavily against the State, the defendant must show actual prejudice. Porter, supra, 288 Ga. at 533 (2) (d), n. 4. The court held that such a formulation is “inconsistent with the flexible balancing test required by Barker and this Court’s precedents.” Id.

       The trial court found prejudice to Curry in granting his motion to dismiss for a delay in prosecution in Case No. A12A0944, but found Curry suffered no prejudice in the denial of his motion for pre-indictment delay in Case No. A12A1101. While the standard for prejudice in analyzing an alleged violation of the Sixth Amendment right to a speedy trial differs somewhat from the standard of prejudice for an alleged due process violation, we are troubled by what appear to be inconsistent rulings by the trial court on this issue.