author: MILLER, Presiding Judge.

text:
    A15A2218.
    JASAREVIC v. FOSTER et al.
    (782 SE2d 314)
   MILLER, Presiding Judge.

Nedzad Jasarevic appeals from the trial court’s dismissal of his complaint against Dr. John Foster III and Dominion Orthopaedic Clinic, LLC (collectively, “the Defendants”). He contends, inter alia, that Dr. Foster committed libel by falsely accusing him of committing a crime and, therefore, the trial court erred in dismissing his complaint. For the reasons set forth below, we find that the trial court properly concluded that the statements at issue were privileged and, as a result, Jasarevic could not prevail on his complaint. Consequently, we affirm.

“A motion to dismiss for failure to state a claim should be sustained if the allegations of the complaint reveal, with certainty, that the plaintiff would not be entitled to relief under any state of provable facts asserted in support of the complaint.” (Footnote omitted.) LaSonde v. Chase Mtg. Co., 259 Ga. App. 772, 774 (1) (577 SE2d 822) (2003). “On appeal, this Court reviews the denial of a motion to dismiss de novo. However, we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in [his] favor.” (Citations, punctuation and footnote omitted.) Liu v. Boyd, 294 Ga. App. 224 (668 SE2d 843) (2008).

So viewed, the record shows that, in 2008, Jasarevic suffered an on-the-job injury and filed a workers’ compensation claim. The State Board of Workers’ Compensation appointed Dr. Foster as Jasarevic’s authorized treating physician. In 2010, Dr. Foster concluded that Jasarevic could be released to full duty, although he continued to treat Jasarevic.

In 2012, Dr. Foster dictated a narrative report that became a part of Jasarevic’s workers’ compensation claim file. In the report, Dr. Foster indicated that Jasarevic, through a translator, had made threatening statements during an appointment and he considered Jasarevic a threat to him and his staff. The report also noted that Dr. Foster refused to treat Jasarevic any longer.

Jasarevic, appearing pro se, brought the instant suit, alleging that Dr. Foster’s statements had prevented him from obtaining needed medical care. In his suit, Jasarevic sought damages as well as declaratory and injunctive relief. The Defendants moved to dismiss Jasarevic’s suit, contending that his complaint sounded in medical malpractice; that he had failed to attach the affidavit required by OCGA § 9-11-9.1 (a)i and that statements made in workers’compensation proceedings are privileged and cannot serve as the basis for a libel claim. The trial court agreed and dismissed Jasarevic’s complaint. This appeal ensued.

1. Jasarevic argues that the trial court erred in dismissing his complaint because Dr. Foster’s statements regarding his threatening behavior constituted libel. We disagree.

Statements made by a physician in his or her medical records that are pertinent and material to a workers’ compensation claim, such as the statements at issue here, are privileged as a matter of law and cannot serve as a basis for a claim of libel. See Auer v. Black, 163 Ga. App. 787, 789 (294 SE2d 616) (1982) (Statements made by a physician in his narrative report of his examination of a patient were privileged because they were made in the performance of his duties, were made to protect his interest in the matter, and were pertinent and material to the patient’s workers’ compensation claim. Therefore, the statements were not libelous as a matter of law.); OCGA § 51-5-8 (All allegations that are contained in regular pleadings filed in a court of competent jurisdiction are privileged as long as they are pertinent and material to the relief sought, and the allegations shall not be deemed libelous, even if they could be considered false and/or malicious in other circumstances.); see also OCGA § 51-5-7 (2) (“Statements made in good faith in the performance of a legal or moral private duty” are privileged.); (3) (Statements made in good faith in order to protect the speaker’s interest in a matter in which he is concerned are privileged.).

Decided January 26, 2016.

Nedzad Jasarevic, pro se.

Weathington Smith, Paul E. Weathington, David C. Hanson, for appellees.

Because the allegations of Jasarevic’s complaint demonstrate with certainty that he would not be entitled to relief, and the Defendants have established that Jasarevic could not possibly introduce evidence within the framework of his complaint that would authorize a grant of the relief he seeks, the trial court properly dismissed his complaint. See Stendahl v. Cobb County, 284 Ga. 525 (1) (668 SE2d 723) (2008).

2. We do not reach the issue of whether the trial court erred in concluding that Jasarevic’s complaint sounded in medical malpractice and must be dismissed due to his failure to file an affidavit pursuant to OCGA § 9-11-9.1 (a), because our decision in Division 1, supra, renders the issue moot.

Judgment affirmed.

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

       OCGA § 9-11-9.1 (a) provides:
      In any action for damages alleging professional malpractice against... [a] professional licensed by the State of Georgia and listed in subsection (g) of this Code sectionf,] .. . the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.


source: Caselaw Access Project

author: DOYLE, Chief Judge.

license: Public Domain

text:
    A15A1713.
    BEASLEY v. THE STATE.
    (782 SE2d 315)
   DOYLE, Chief Judge.

In 2011, Robert C. Beasley was convicted of trafficking cocaine, and he appealed to this Court, enumerating various errors including a challenge to the sufficiency of the evidence and a conflict of interest on the part of the trial judge. This Court ruled that it could not determine on the record whether the conflict of interest issue had been preserved for review, so the case was remanded for “the trial court to make findings of fact as to when Beasley and his counsel first learned of the grounds for disqualification” of the trial judge. On remand, the State consented to a new trial, which the trial court granted without making findings as to the conflict of interest issue, over Beasley’s objection on double jeopardy grounds. Beasley now appeals from the order granting the new trial contending that (1) the trial court erred by declining to hold an evidentiary hearing on the alleged conflict of interest issue, (2) a new trial was an inappropriate remedy for the alleged conflict of interest, (3) double jeopardy bars a new trial, and (4) the evidence was insufficient to support the trial verdict. For the reasons that follow, we affirm.

The record shows that Beasley, Kayla Stewart, and Natdaniel Whetstone were indicted for trafficking cocaine; Beasley and Stewart were tried jointly, with Whetstone testifying for the State in exchange for the dismissal of his charge. As outlined in this Court’s opinion in Stewart’s appeal of her conviction for simple possession, which we reversed for insufficient evidence of her guilt, the

indictment resulted from law enforcement’s discovery of drugs in a Newnan hotel room that Stewart and Beasley shared on December 24, 2011, after responding to a call from the hotel. Stewart, who still lived in her parents’ home, informed law enforcement that she rented the room so that she and Beasley could spend some time together. At 10:00 p.m., however, Stewart decided to leave the hotel because she was frustrated by constant interruptions from Beasley’s friends, including Whetstone. Beasley remained in the room with Whetstone until approximately 11:00 p.m., when the two left the premises to go shoot pool.
At trial, Whetstone — who testified for the State in exchange for dismissal of the charges against him ■— noted that prior to leaving the hotel room, Beasley smoked marijuana, which he pulled from a white bag that was inside the hotel-room microwave. Beasley informed Whetstone that the bag contained “yams,” which Whetstone understood to mean cocaine. Whetstone also observed Beasley remove cash from a drawer.
According to Whetstone, after getting into his car to leave, Beasley noticed law enforcement arriving at the hotel, and, as a result, he asked Whetstone to circle the building to see if officers were going inside of his room. Then, not long after driving away from the hotel, the two men were stopped by law enforcement after officers entered the room and discovered marijuana, cocaine, and a large stack of cash, all in plain view. Stewart was apprehended later, and she and Beasley were subsequently tried and convicted, although the jury convicted Stewart of the lesser offense of simple possession.

In the trial held before Coweta County Superior Court Judge Jack Kirby, Beasley was convicted on November 9, 2012, of trafficking cocaine. Beasley first moved for a new trial on November 28, 2012, and after several procedural delays, including the assignment of a new judge, Judge William G. Hamrick, to the case,

Beasley filed a brief in support of his motion for new trial on August 16, 2013. In the brief and at the [subsequent] hearing, Beasley argued that he was deprived of a fair trial due to a conflict of interest created by Judge Kirby’s marriage to a member of the district attorney’s office in the same judicial circuit. Beasley’s counsel contended that neither she nor her client was aware of this relationship prior to trial and that both had learned of the conflict only afterward.

Judge Hamrick denied Beasley’s motion, giving rise to Beasley I. Because the record in that case did not reflect when Beasley learned of the grounds for disqualification of Judge Kirby, this Court ruled that it could not “discern whether [the disqualification issue had] been properly preserved for appellate review.” Accordingly, the Court “vacate [d] the trial court’s order denying Beasley’s motion for new trial and remand[ed] this case to the trial court to make findings of fact as to when Beasley and his counsel first learned of the grounds for disqualification.”

On remand, the State consented to a retrial, and over Beasley’s objection, the trial court ordered a retrial without reaching the disqualification issue. Beasley now appeals the order granting the new trial.

1. Beasley first argues that the trial court erred by ordering a new trial without holding an evidentiary hearing as this Court directed in Beasley I. Beasley correctly points out that the opinion in Beasley I specifically sought further findings as to Beasley’s knowledge of the disqualification issue, and the trial court failed to make such findings. But the trial court’s action did not undermine this Court’s disposition; rather, the trial court sought to maximize judicial economy by moving forward with a new trial with the State’s concession. Although this Court’s “decision and direction shall be respected and carried into full effect in good faith by the court below,” the record before us does not demand reversal on this ground.

2. Beasley next argues that a new trial was not the correct remedy for a conflict of interest on the part of the trial judge. As support, he cites Pope v. State, which addressed a scenario in which a trial judge failed to adequately disclose his law clerk’s future employment with the district attorney who tried the case. The Court in that case explained its analysis as follows:

Ideally, the trial judge should have made a disclosure on the record of his law clerk’s future employment. The defendant might have decided to waive any right of recusal[,] and this waiver could have been placed on the record. Otherwise, the trial judge should at least have excused his law clerk from any further participation in this case.
No such disclosure appears in the record of this case. Nonetheless, if the defendant was aware of a possible basis for recusal, he had no right to sit back, await a possibly favorable verdict, and then raise the issue for the first time after trial.
On the question of notice and prior knowledge, the affidavits are in conflict. This [C]ourt is ill-equipped to make the factual determinations necessary to a proper resolution of this issue. We therefore remand this case to the trial court for a hearing. If the defendant or his attorneys knew of a possible basis for recusal prior to trial and failed to raise it in a timely manner, the conviction may be affirmed. If the issue was raised at the first opportunity after the discovery of the relevant facts, the conviction must be reversed.

Notably, the decision in Pope does not explicitly address what might happen after the conviction is reversed. Instead, it merely states that reversal may be required if the defendant timely raised a recusal issue. After a conviction is reversed based on a procedural error, as opposed to an evidentiary insufficiency, cases are routinely retried in new trials. For example, in Sallie v. State, when a defendant was convicted in a trial in which his attorney had an actual conflict of interest, the Supreme Court of Georgia reversed the conviction and remanded the case for a new trial. Thus, contrary to Beasley’s assertions, Pope does not stand for the proposition that a criminal defendant cannot be retried after his conviction is reversed based on a procedural error. Accordingly, this enumeration fails.

3. Beasley next argues that a new trial is barred on double jeopardy grounds.

The Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, provides that no person shall “be subject for the same offence to be twice put in jeopardy.” It has long been settled, however, that the Double Jeopardy Clause’s general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction.
It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.

Here, the error Beasley complained of, a conflict of interest on the part of the trial judge, did not implicate his guilt or innocence or the sufficiency of the evidence introduced by the State at trial. Thus, as Beasley concedes, if the State adduced sufficient evidence of his guilt to authorize his conviction in his first trial, double jeopardy concerns would not bar his retrial in the event of a procedural error.

4. With respect to the sufficiency of the evidence, Beasley argues that the State failed to adequately demonstrate that he possessed the cocaine. We disagree.

When the appellate courts review the sufficiency of the evidence, they do not “re-weigh the evidence” or resolve conflicts in the testimony; instead they defer to the jury’s assessment of the weight and credibility of the evidence. Appellate courts determine whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The evidence at Beasley’s trial included testimony by Whetstone that Beasley smoked marijuana after pulling it from a bag in the hotel microwave. According to Whetstone, the bag also contained “yams,” which Whetstone explained was crack cocaine. Later crime lab testing confirmed that the substance was cocaine weighing a total of 34.39 grams with a purity ranging from 37.6 percent to 43.4 percent, which exceeds the statutory threshold for trafficking. Beasley argues that Whetstone’s testimony that Beasley possessed the cocaine requires corroboration under former OCGA § 24-4-8, which provided that in “felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient” to establish a fact. We note that in this context, “sufficient corroborating evidence may be circumstantial, it may be slight, and it need not of itself be sufficient to warrant a conviction of the crime charged.”

Pretermitting whether Whetstone was an actual accomplice for purposes of the statute, there was other evidence corroborating these events. The police found the bag containing the drugs in the location where Whetstone described it, as well as a large amount of cash in the drawer where Whetstone described seeing Beasley retrieve the cash. Third parties smelled marijuana coming from the room where Beasley was accused of smoking it after retrieving it from the bag containing cocaine, concurrent with the time described by Whetstone, and police smelled burnt marijuana when they entered the hotel room shortly after Beasley and Whetstone left. The officer who stopped Beasley and Whetstone described smelling marijuana on Beasley but not Whetstone. Finally, the narcotics investigator who processed the crime scene and took the contraband into evidence testified that there was cocaine present in the immediate vicinity of the marijuana remains found in plain view in the hotel room. Based on the proximity and commingling of the cocaine and marijuana found in the hotel room, there was at least some evidence, even if circumstantial, corroborating Whetstone’s testimony that Beasley exercised control over both the marijuana and the cocaine. Any inconsistencies in the evidence were for the jury to resolve, and viewed in the proper light, the evidence adduced at Beasley’s trial corroborated Whetstone’s testimony and was sufficient to authorize a guilty verdict.

Decided January 27, 2016.

Hale Law Firm, Loletha D. Hale; Durant Law, M. Katherine Durant, for appellant.

Peter J. Skandalakis, District Attorney, John H. Cranford, Jr., Assistant District Attorney, for appellee.

Because the evidence sufficed to support the guilty verdict, and any conflict of interest constituted trial error only, the trial court correctly ruled that the Double Jeopardy Clause does not bar retrial.

Judgment affirmed.

Boggs and Rickman, JJ., concur.

       See Beasley v. State, 328 Ga. App. 96 (761 SE2d 509) (2014) (“Beasley I”).

       Id. at 100.

       We note that both parties rely in part on the record in a related case, Case No. A14A0337, Stewart’s appeal following her joint trial with Beasley. See Stewart v. State, 328 Ga. App. 78 (761 SE2d 497) (2014). Also, pursuant to Beasley’s request under Court of Appeals Rule 42 (c), the Court has retained the record from Beasley’s first appeal, Case No. A14A0636. Each of these appeals arose from the same indictment and trial transcript, and we have consolidated the records for purposes of this case.

       (Footnotes omitted.) Stewart, 328 Ga. App. at 78-79.

       Judge Kirby is married to the chief assistant district attorney in the Coweta Judicial Circuit, and he has since recused himself from all criminal matters in that circuit. See Beasley I, 328 Ga. App. at 97.

       See id. at 97-98.

       See id. at 98.

       Id. at 98-99

       See generally State v. Hargis, 294 Ga. 818, 822, n. 9 (756 SE2d 529) (2014) (discussing the need to timely raise a disqualification issue and stating in dicta that “[i]f, by the time the grounds for disqualification are known, the allegedly disqualified judge no longer is presiding over the case, we suppose that it might be sufficient to raise the issue in a motion for new trial, inasmuch as a motion to recuse would serve no purpose in such a case”).

        Beasley I, 328 Ga. App. at 100.

       Id.

       OCGA § 5-6-10.

       256 Ga. 195 (345 SE2d 831) (1986), overruled on other grounds by Nash v. State, 271 Ga. 281 (519 SE2d 893) (1999).

       (Citation and punctuation omitted.) Pope, 256 Ga. at 214 (26).

       See id.

       269 Ga. 446 (499 SE2d 897) (1998).

       See id. at 446, 448 (2).

       (Citation omitted.) Lockhart v. Nelson, 488 U. S. 33, 38 (109 SCt 285, 102 LE2d 265) (1988). See also State v. Caffee, 291 Ga. 31, 34 (3) (728 SE2d 171) (2012) (explaining that the Double Jeopardy Clause “does not preclude the State from retrying a criminal defendant whose conviction is set aside due to trial error, such as the incorrect admission of evidence or improper instructions”).

       (Citations and punctuation omitted.) Burks v. United States, 437 U. S. 1, 15 (III) (98 SCt 2141, 57 LE2d 1) (1978).

       See generally Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (holding that a valid conviction must be premised on evidence which, “after viewing the evidence in the light most favorable to the prosecution, [would authorize] any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt”) (emphasis omitted).

       (Citations and punctuation omitted.) Dority v. State, 335 Ga. App. 83, 83 (780 SE2d 129) (2015).

       See OCGA § 16-13-31 (a) (1).

       Because Beasley’s trial occurred before January 1, 2013, the former Evidence Code applied. See Ga. L. 201Í, pp. 99, 214, § 101 (new Evidence Code effective for trials commencing on or after January 1, 2013).

       (Punctuation omitted.) Threatt v. State, 293 Ga. 549, 551 (1) (748 SE2d 400) (2013).

       See generally Williams v. State, 289 Ga. 672, 673 (1) (715 SE2d 76) (2011) (holding that a witness was not an accomplice because “there was no evidence that [the witness] advised, encouraged[,] or counseled appellant to commit any crime ... or that [the witness] intended to participate in any crime”) (citation omitted).

       See Kegler v. State, 317 Ga. App. 427, 432 (1) (b) (731 SE2d 111) (2012) (circumstances discovered by police corroborated accomplice’s account), overruled on other grounds by Hamm v. State, 294 Ga. 791 (756 SE2d 507) (2014); Gilmore v. State, 315 Ga. App. 85, 88 (1) (726 SE2d 584) (2012) (“Slight evidence of a defendant’s identity and participation from an extraneous source is all that is required to corroborate the accomplice’s testimony and thus support the verdict. Moreover, the corroborating evidence itself need not be sufficient to warrant conviction, but only tend to connect and identify defendant with the crime. The corroborating evidence may consist entirely of circumstantial evidence and may include [the] defendant’s conduct before and after the crime was committed.”) (punctuation and footnote omitted).

       See Caffee, 291 Ga. at 34 (3).


author: Barnes, Presiding Judge.

text:
    A16A0107.
    OWENS v. THE STATE.
    (782 SE2d 321)
   Barnes, Presiding Judge.

Markel Owens appeals the trial court’s order denying his motion to withdraw his guilty plea. For the reasons discussed below, we reverse the trial court’s order and remand for further proceedings consistent with Fortson v. State, 272 Ga. 457 (532 SE2d 102) (2000).

The record reflects that in June 2014, Owens pled guilty to and was sentenced for armed robbery, aggravated assault, burglary, and three counts of possession of a firearm during the commission of a crime. Within the same term of court, and acting pro se, Owens moved to withdraw his guilty plea. See OCGA § 15-6-3 (11) (terms of court for Cobb Judicial Circuit); Lay v. State, 289 Ga. 210, 212 (2) (710 SE2d 141) (2011) (“Amotion to withdraw a guilty plea must be filed within the same term of court as the sentence entered on the guilty plea”). The trial court denied Owens’ motion without a hearing. Owens was not appointed counsel for his motion to withdraw his guilty plea, the record does not reflect that he was advised of his right to counsel, and no waiver of his right to counsel appears in the record.

Decided January 27, 2016.

Raina J. Nadler, for appellant.

D. Victor Reynolds, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

1. On appeal, Owens contends that the trial court’s denial of his motion to withdraw his guilty plea must be reversed and the case remanded because he was not appointed counsel and no valid waiver of his right to counsel was obtained. To its credit, the State concedes that the case must be remanded pursuant to the Supreme Court of Georgia’s decision in Fortson, 272 Ga. 457. Accordingly, we reverse and remand this case to the trial court for a hearing on Owens’ motion to withdraw his guilty plea to be conducted in conformity with the opinion in Fortson, 272 Ga. at 461 (2). See Walker v. State, 332 Ga. App. 256, 257 (1) (771 SE2d 905) (2015); Durham v. State, 329 Ga. App. 312, 313 (1) (764 SE2d 898) (2014); Douglas v. State, 317 Ga. App. 425, 425-426 (1) (731 SE2d 109) (2012); Kennedy v. State, 267 Ga. App. 314, 314-315 (599 SE2d 290) (2004).

2. Owens’ remaining enumeration of error is moot in light of our decision in Division 1.

Judgment reversed and case remanded.

Boggs and Rickman, JJ., concur.


text:
    A14A0206.
    VININGS BANK v. BRASFIELD & GORRIE, LLC.
    (782 SE2d 322)
   MILLER, Presiding Judge.

In Vinings Bank v. Brasfield & Gorrie, LLC, 297 Ga. 468 (774 SE2d 701) (2015), the Supreme Court of Georgia reversed the judgment of this Court in Division 3 of Vinings Bank v. Brasfield & Gorrie, LLC, 328 Ga. App. 636 (759 SE2d 886) (2014), in which this Court affirmed the trial court’s denial of summary judgment to Vinings Bank on Brasfield & Gorrie’s counterclaim for conversion. Consequently, we vacate Division 3 of our opinion in Vinings Bank, supra, 328 Ga. App. 636, and in its place adopt the judgment of the Supreme Court as our own.

Decided January 29, 2016.

Bailey Davis, C. Lee Davis, Emma L. Burke, for appellant.

Franklin A. Trapp; DLA Piper, Robert L. Crewdson; Weinberg, Wheeler, Hudgins, Gunn & Dial, David J. Larson, for appellee.

The Supreme Court did not address or consider Divisions 1 and 2 of our earlier opinion. In Division 1, we affirmed the trial court’s denial of Vinings Bank’s motion for summary judgment and the grant of partial summary judgment to Brasfield & Gorrie on the limited issue of the priority of the bank’s security interest as an assignee. In Division 2, we affirmed the trial court’s denial of Vinings Bank’s motion for summary judgment on its claim for conversion. Because Divisions 1 and 2 are consistent with the Supreme Court’s opinion, those decisions “become binding upon the return of the remittitur.” Shadix v. Carroll County, 274 Ga. 560, 563 (1) (554 SE2d 465) (2001).

Accordingly, we reverse the trial court’s denial of summary judgment to Vinings Bank on Brasfield & Gorrie’s counterclaim for conversion, and we affirm the remainder of the trial court’s order.

Judgment affirmed in part and reversed inpart.

Doyle, C. J., and Dillard, J., concur.


author: ANDREWS, Presiding Judge.

text:
    A15A1686.
    NOLLEY v. THE STATE.
    (782 SE2d 446)
   ANDREWS, Presiding Judge.

Darnell C. Nolley was found guilty by a jury of criminal attempt to commit armed robbery (Count 1); aggravated assault (Count 2); seventeen violations of the Street Gang Terrorism and Prevention Act (the Street Gang Act) (Counts 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,14, 15,16,17,18, and 19); possession of a firearm during the commission of the felony offense of criminal attempt to commit armed robbery (Count 20); possession of a firearm during the commission of the felony offense of aggravated assault (Count 21); and misdemeanor obstruction of a police officer (Count 22). By merger with other counts, the trial court subsequently vacated the convictions on Counts 2, 4, 6, 10, and 21. On appeal, Nolley contends: (1) that the evidence was insufficient to support his convictions for violation of the Street Gang Act on the remaining Counts 3, 5, 7, 8, 9,11,12,13,14,15,16,17,18, and 19; and (2) that the trial court erred by failing to merge all of the remaining counts charging violation of the Street Gang Act into Count 11. We find the evidence was sufficient to support the convictions on all the counts except Count 18, on which there was an absence of evidence in the record to prove venue. The trial court did not err by failing to merge all of the Street Gang Act counts into Count 11. We conclude for other reasons that Counts 8, 9 and 11 must also be vacated and the case remanded for resentencing.

1. The indictment charged that Nolley violated various provisions of the Street Gang Act (OCGA § 16-15-1 et seq.). Specifically, Nolley was charged with violation of subsections (a), (b), (d), and (e) of OCGA § 16-15-4.

Subsection (a) of OCGA § 16-15-4 provides:

It shall be unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of any offense enumerated in paragraph (1) of Code Section 16-15-3.

Counts 3 and 5 charged that Nolley violated subsection (a) by being associated with the Gangster Disciples, a criminal street gang, and participating in criminal gang activity by commission of the offense of criminal attempt to commit armed robbery by pointing a gun at David Hammond, an act which constituted a substantial step toward the commission of armed robbery (Count 3), and by commission of the offense of possession of a firearm during the commission of the felony offense of criminal attempt to commit armed robbery (Count 5). Subsection (b) of OCGA § 16-15-4 provides:

It shall be unlawful for any person to commit any offense enumerated in paragraph (1) of Code Section 16-15-3 with the intent to obtain or earn membership or maintain or increase his or her status or position in a criminal street gang.

Counts 7,8, and 9 charged that Nolley violated subsection (b) by being associated with the Gangster Disciples, a criminal street gang, and committing the offense of criminal attempt to commit armed robbery with the intent to increase his status in the gang (Count 7); committing the offense of aggravated assault with the intent to increase his status in the gang (Count 8); and committing the offense of criminal attempt to commit armed robbery with the intent to maintain his status in the gang (Count 9).

Subsection (d) of OCGA § 16-15-4 provides:

It shall be unlawful for any person who occupies a position of organizer, supervisory position, or any other position of management or leadership with regard to a criminal street gang to engage in, directly or indirectly, or conspire to engage in criminal gang activity.

Count 11 charged that Nolley violated subsection (d) by being in the position of organizer of the Gangster Disciples, a criminal street gang, and directly engaging in criminal gang activity, to wit: “the shooting of David Hammond.”

Subsection (e) of OCGA § 16-15-4 provides:

It shall be unlawful for any person to cause, encourage, solicit, recruit, or coerce another to become a member or associate of a criminal street gang, to participate in a criminal street gang, or to conduct or participate in criminal gang activity.

Counts 12,13,14,15,16,17,18, and 19 charged that Nolley violated subsection (e) in that, on or about March 30, 2011 (the date of the attempted armed robbery), he encouraged the following persons to participate in criminal gang activity: Rodricus Walton (Count 12); Nicolas Thomas (Count 13); Ralpheal Thomas (Count 14); Christopher Thomas (Count 15); Elijah Shuller (Count 16); China Fields (Count 17); Quintan Reaves (Count 18); and Robert Phillips (Count 19).

Construed in favor of the guilty verdicts, the evidence produced by the State to support these charges showed the following:

Nolley was a high-ranking leader and organizer of a criminal street gang known as the Gangster Disciples (the gang), which made money from prostitution, blackmail, and the sale of illegal drugs and guns. On March 30, 2011, Nolley met with co-defendants Fields, Walton, Nicolas Thomas, Ralpheal Thomas, Christopher Thomas, Shuller, and Phillips, and set forth a plan to rob Hammond. Of that group, Nolley, Walton, Nicolas Thomas, Ralpheal Thomas, and Shuller were members of the gang. Although Fields denied it, there was evidence that she was engaged in prostitution at Nolley’s direction. Fields testified that she had been having sex for money with Hammond. Hammond testified that he had been paying Fields for sex, and admitted that he was also engaged in the business of selling marijuana. Evidence showed that Nolley knew Hammond was having sex with Fields; that Nolley was angry because Hammond owed him money for the sex; and that Nolley directed the plan to rob Hammond to “get respect,” take over Hammond’s marijuana territory, and show him who was boss. In planning the robbery, Nolley referred to some of the older members of the group as “real niggers in training ... to be over the younger guys.” The co-defendants and Nolley traveled in two cars to Hammond’s house. Nolley planned that, if the robbery went awry and police responded, one car could decoy the police while he escaped in the other car. On the way to Hammond’s house, Phillips and Nicolas Thomas stopped at Nolley’s direction and bought bullets for a handgun to be used in the robbery. Nolley also stopped on the way and met with co-defendant Quintan Reaves, another member of the gang. Nolley exchanged a gang handshake with Reaves, and Reaves gave Nolley the handgun that Nicolas Thomas subsequently used in the attempted robbery. Text messages that Reaves exchanged with Nolley to arrange the gun pickup contained gang-related symbols. When Nolley and the co-defendants arrived at Hammond’s house, at Nolley’s direction Fields lured Hammond outside the house, where Nolley, Walton, and Nicolas Thomas (who all had handguns) attempted to rob Hammond at gunpoint. When Hammond resisted, Nolley and Walton fired multiple shots wounding Hammond in the leg. Hammond escaped and immediately reported the attempted robbery and shooting to police. Nolley and the co-defendants fled in their cars. Police responded to the report and chased and stopped the car occupied by Nolley, Walton, Shuller, and Fields. Nolley and Walton escaped on foot, but Shuller and Fields were arrested at the stop. Evidence showed that, by driving the car occupied by Nolley, Shuller was supposed to get an increase in rank in the gang. A gang-related bandana was found in the car. Police investigation led to the subsequent arrest of Nolley and the remaining co-defendants. The State also produced testimony from a Georgia Bureau of Investigation agent qualified as an expert in criminal street gangs and gang-related culture, trends, and customs. The agent testified that gang culture is all about getting and keeping respect, and responding forcefully to disrespect, both internally with other gang members and externally with those not in the gang. The agent confirmed that common sources of gang income include prostitution and drug sales conducted in territory where the gang operates. Most of the co-defendants pled guilty and testified at the trial against Nolley.

Nolley does not dispute that the evidence was sufficient to support his conviction on the charged offenses of criminal attempt to commit armed robbery against Hammond (Count 1) and possession of a firearm during the commission of the attempted armed robbery (Count 20); that, at the time of those offenses, he was associated with the Gangster Disciples, a “criminal street gang” as defined in OCGA § 16-15-3 (2); and that those offenses are predicate acts of “criminal gang activity^’ as defined in OCGA § 16-15-3 (1). Rather, Nolley contends the State failed to prove the charged violations of the Street Gang Act because the evidence was insufficient to show that he committed a predicate offense with an intent to further the interests of the gang (OCGA § 16-15-4 (a)); to maintain or increase his status in the gang (OCGA § 16-15-4 (b)); or to show that he did so as an organizer of the gang (OCGA § 16-15-4 (d)).

Proof that “the commission of the predicate act was intended to further the interests of the [gang]” is essential to prove a violation of OCGA § 16-15-4 (a). Jones v. State, 292 Ga. 656, 659 (740 SE2d 590) (2013); Rodriguez v. State, 284 Ga. 803, 807 (671 SE2d 497) (2009) (“there must be some nexus between the act and an intent to further street gang activity’). We find the evidence was sufficient to establish a nexus between the predicate act and the intent necessary to prove the counts alleging violations of OCGA § 16-15-4 (a), (b), and (d). As set forth above, Nolley and most of the co-defendants involved in the attempted armed robbery of Hammond were associated with the gang; the gang was involved in prostitution and drugs sales; and gang culture centered around enforcing respect for gang members and activities in the gang’s territory. Nolley perceived disrespect from Hammond over dealings with Nolley’s prostitute, and Nolley planned the robbery to get respect from Hammond and to take over Hammond’s drug territory. There was evidence that Nolley, who was a high-ranking gang leader and organizer, saw the robbery as an opportunity to train or promote gang members. There was also evidence that connected the planning and execution of the attempted armed robbery to a gang-related handshake, gang symbols in a text message, and use of a gang-related bandana.

The evidence was sufficient to establish that Nolley: (a) committed the predicate acts with the intent to further the interests of the gang and was guilty of violating OCGA § 16-15-4 (a) as charged in Counts 3 and 5; (b) committed the predicate acts with the intent to maintain or increase his status in the gang and was guilty of violating OCGA § 16-15-4 (b) as charged in Counts 7, 8, and 9; and (c) was an organizer of the gang directly engaged in criminal gang activity and was guilty of violating OCGA § 16-15-4 (d) as charged in Count 11. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

As to his convictions for violation of OCGA § 16-15-4 (e), Nolley contends that, even if there was sufficient evidence to show a nexus between his commission of the predicate acts and his intent to further the interests of the gang, the State failed to prove that, on or about March 30,2011, he encouraged the following persons to participate in criminal gang activity: Ralpheal Thomas (Count 14); Christopher Thomas (Count 15); Shuller (Count 16); Reaves (Count 18); and Phillips (Count 19). The evidence showed that Nolley met with co-defendants, including Ralpheal Thomas, Christopher Thomas, Shuller, and Phillips, to plan the attempted armed robbery of Hammond, and that, prior to the attempted robbery, he contacted Reaves by cell phone to arrange to get the gun from Reaves which was subsequently used in the attempted robbery. This evidence, along with evidence establishing Nolley’s violation of OCGA § 16-15-4 (a), (b) and (d), was sufficient to show that Nolley was guilty of encouraging others to participate in criminal gang activity as charged in Counts 14,15,16,18, and 19. Nevertheless, the conviction as to Reaves on Count 18 must be reversed because the State failed to prove venue in Walton County. As the State concedes, Nolley personally obtained the gun from Reaves at a location outside of Walton County, and there is no evidence that any cell phone contact between Nolley and Reaves to arrange the gun exchange occurred in Walton County.

2. Nolley contends that the prohibition against double jeopardy requires that all of his convictions for violations of the Street Gang Act in Counts 3, 5, 7, 8, 9,12,13,14,15,16,17,18, and 19 merge into the conviction on Count 11 under which he was found guilty of violating OCGA § 16-15-4 (d) of the Street Gang Act by being an organizer of the gang who directly engaged in criminal gang activity, to wit: “the shooting of David Hammond.” The substantive protection afforded under constitutional and statutory double jeopardy provisions prohibits multiple criminal convictions or punishments arising from the same conduct if one crime is included in the other. Drinkard v. Walker, 281 Ga. 211, 212 (636 SE2d 530) (2006); U. S. Const. amend. V; Ga. Const, of 1983, Art. I, Sec. I, Par. XVIII; OCGA §§ 16-1-6 (1); 16-1-7 (a). Drinkard adopted the “required evidence” test to determine when one crime is “included in” and merges into another — “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” 281 Ga. at 215. The test focuses on the evidence required to establish the statutory elements of each criminal offense, not the actual evidence presented at trial. Applying the Drinkard test, Nolley contends, for example, that Counts 3 and 11 arose from the same transaction, and that Count 3, which charged he was associated with the gang and participated in gang activity by attempted armed robbery of Hammond, was established by proof of the same or less than all the facts required to prove Count 11, which charged that he was a gang organizer who participated in the same gang activity by shooting Hammond during the attempted armed robbery. Although the State concedes that Drinkard would require merger of Count 3 into Count 11, we find no basis to apply the Drinkard test to Nolley’s contention that all the Street Gang Act convictions merge into Count 11.

As set forth in Division 1, supra, these counts charged Nolley with separate criminal violations of the Street Gang Act set forth in subsections (a), (b), (d), and (e) of OCGA § 16-15-4. Subsection (m) of OCGA § 16-15-4 provides: “Any crime committed in violation of this Code section shall be considered a separate offense.” Under the plain language of this provision, the Legislature determined that any crime committed in violation of OCGA § 16-15-4 is a separate offense which does not merge with another separate offense under the Code section or with any predicate offense listed in the Code section. The Legislature has the power to authorize multiple criminal convictions or punishments arising out of the same act or transaction. Mathis v. State, 273 Ga. 508, 509 (543 SE2d 712) (2001). Because the Legislature has the power to define crimes and fix punishments, the protection against double jeopardy is limited to assuring that the court does not “exceed its legislative authorization by imposing multiple punishments for the same offense.” Brown v. Ohio, 432 U. S. 161, 165 (97 SCt 2221, 53 LE2d 187) (1977). Legislative intent to exercise this power in OCGA § 16-15-4 (m) of the Street Gang Act is expressed in OCGA § 16-15-2 (b) and (c) of the Act which provides:

The General Assembly... finds that the State of Georgia is in a state of crisis which has been caused by violent criminal street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods. These activities, both individually and collectively, present a clear and present danger to public order and safety and are not constitutionally protected. ... It is the intent of the General Assembly in enacting this chapter to seek the eradication of criminal activity by criminal street gangs by focusing upon criminal gang activity and upon the organized nature of criminal street gangs which together are the chief source of terror created by criminal street gangs.

Accordingly, the Drinkard test does not apply to Nolley’s multiple convictions for violations of distinct criminal offenses set forth in OCGA § 16-15-4 (a), (b), (d), and (e).

Nevertheless, we find that the trial court should have vacated Nolley’s convictions and sentences on Counts 8, 9, and 11.

The trial court properly concluded that the conviction on Count 2, which charged Nolley with aggravated assault by shooting Hammond during the attempted armed robbery, was vacated by operation of law because it merged into the attempted armed robbery conviction (Count 1). Reed v. State, 318 Ga. App. 412, 415 (734 SE2d 113) (2012). After merging and vacating the aggravated assault conviction, the trial court also vacated the convictions on Counts 4, 6, and 10, which charged violations of the Street Gang Act predicated on commission of the vacated aggravated assault. See King v. Waters, 278 Ga. 122 (598 SE2d 476) (2004). The trial court also vacated the conviction on Count 21, which charged Nolley with possession of a handgun during commission of the vacated aggravated assault. Id. But Count 8 (charging Nolley committed aggravated assault with the intent to increase his status in the gang) and Count 11 (charging that Nolley was a gang organizer who directly engaged in criminal gang activity by shooting Hammond) also charged violations of the Street Gang Act predicated on commission of the vacated aggravated assault. Accordingly, we vacate Nolley’s convictions and sentences on Counts 8 and 11, and remand the case to the trial court for resentencing. Id.

Nolley was convicted on Counts 7 and 9 for violation of OCGA § 16-15-4 (b), which provides:

It shall be unlawful for any person to commit any offense enumerated in paragraph (1) of Code Section 16-15-3 with the intent to obtain or earn membership or maintain or increase his or her status or position in a criminal street gang.

Count 7 charged that Nolley, a gang member, violated subsection (b) by committing the offense of attempted armed robbery with the intent to increase his status in the gang, and Count 9 charged that Nolley, a gang member, violated subsection (b) by committing the offense of attempted armed robbery to maintain his status in the gang. We conclude that the portion of subsection (b) making it unlawful for any person to commit an offense enumerated in OCGA § 16-15-3 (1) with the intent to “maintain or increase his or her status or position in a criminal street gang” expresses the Legislature’s intention to create a single crime, committed by a person already a member or associated with the gang, which is proved by showing the person committed the enumerated offense with the intent to maintain or increase status or position in the gang. “When a defendant is convicted for multiple violations of a single statutory provision, the required evidence test enunciated in Drinkard[, supra,] does not apply....” Gipson v. State, 332 Ga. App. 309, 320, n. 7 (772 SE2d 402) (2015) (citation and punctuation omitted). Rather, to determine whether multiple convictions and punishments are permissible in this context, a court must determine the “ ‘unit of prosecution,’ or the precise act or conduct that is being criminalized under the statute.” State v. Marlowe, 277 Ga. 383, 383-384 (589 SE2d 69) (2003); compare Thomas v. State, 292 Ga. 429, 434 (738 SE2d 571) (2013) (applying Drinkard required evidence test to determine whether two distinct criminal offenses merge). We find no statutory basis to conclude that the Legislature intended that proof of intent to “maintain” status or position in the gang would constitute a separate “unit of prosecution” from proof of intent to “increase” status or position in the gang. The State’s indictment charging violation of one offense in two counts (Counts 7 and 9) was multiplicitous, and resulted in Nolley being punished twice for a single offense in violation of double jeopardy protections. Chancey v. State, 256 Ga. 415, 433 (349 SE2d 717) (1986); see Martin v. State, 189 Ga. App. 483, 496-497 (376 SE2d 888) (1988) (multiplicitous indictment and multiple punishments in violation of double jeopardy may be addressed and set aside even if not raised on appeal). Accordingly, we affirm Nolley’s conviction and sentence on Count 7; vacate the conviction and sentence on Count 9; and remand the case to the trial court for resentencing.

Decided February 2, 2016.

Kyle T. Joyce, for appellant.

Judgment affirmed in part, reversed in part, and vacated in part, and case remanded for resentencing.

Miller, P. J., and Mercier, J., concur.

Layla H. Zon, District Attorney, Miguel A. Trujillo, Assistant District Attorney, for appellee.

       It is undisputed that the predicate offenses listed in OCGA § 16-15-3 (1) include the charged offenses of criminal attempt to commit armed robbery, aggravated assault, and both possession of a firearm offenses. Paragraph (1) (J) of OCGA § 16-15-3 provides:
      (1) “Criminal gang activity” means the commission, attempted commission, conspiracy to commit, or solicitation, coercion, or intimidation of another person to commit any of the following offenses on or after July 1, 2006:... (J) Any criminal offense in the State of Georgia, any other state, or the United States that involves violence, possession of a weapon, or use of a weapon, whether designated as a felony or not, and regardless of the maximum sentence that could be imposed or actually was imposed.

       It is undisputed that evidence showed the Gangster Disciples is a “criminal street gang,” defined in OCGA § 16-15-3 (2) as “any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity as defined in [OCGA § 16-15-3 (1)].”


text:
    A15A2008.
    McCRANIE v. THE STATE.
    (782 SE2d 453)
   MILLER, Presiding Judge.

Christopher Shawn McCranie pled guilty to child molestation (OCGA § 16-6-4 (a) (1)) and statutory rape (OCGA § 16-6-3 (a)). Appearing pro se, McCranie appeals from the trial court’s denial of his consolidated motion for an out-of-time appeal, to withdraw a guilty plea and to vacate a void sentence. McCranie contends that the trial court erred in denying his motion because (1) his plea was involuntary and (2) his sentence is void. For the reasons that follow, we affirm the denial of McCranie’s motion to withdraw his guilty plea, but reverse the denial of his motion for an out-of-time appeal because the trial court did not make the requisite factual inquiry into whether McCranie’s failure to timely pursue a direct appeal was attributable to him or his trial counsel. We also vacate McCranie’s sentence for statutory rape, and remand the case for proceedings consistent with this opinion.

In 2010, McCranie was charged with several sex crimes after he had sexual intercourse with a developmentally disabled 14-year-old girl. On June 10, 2010, McCranie appeared with counsel at his plea hearing. The State’s initial plea offer was twenty years, with ten years to serve for child molestation and sexual battery.

The trial court, however, made clear that it wanted McCranie to have a sentence of at least 30 years. The following exchange then occurred:

[COUNSEL]: The Judge is not going to do the plea offer. It’s thirty serve ten versus twenty serve ten. You can withdraw your plea and go to trial.
[MCCRANIE]: What would I get if I went to trial?
THE COURT: Why don’t you try it and let’s see.
[MCCRANIE]: I don’t want to try it.

Trial counsel then advised McCranie that the maximum possible aggregate sentence he could receive was 50 years.

The trial court then offered a sentence of thirty years, with ten years to serve, but indicated that it would only accept McCranie’s plea if the victim’s mother agreed to it. The trial court stated, “You ain’t walking out of this courtroom with less [than] thirty. I know it don’t bother you. Why don’t I make it life?” Later, the trial court told McCranie, “I’ll be glad for you to go to trial because I promise you I’ll be your judge.”

Both trial counsel and the prosecutor advised McCranie that by pleading guilty, he was waiving his right to a jury trial, the presumption of innocence, the right to confront witnesses against him, the right to testify and call witnesses, and the right to avoid self-incrimination, and McCranie acknowledged that he was waiving those rights. The prosecutor then advised McCranie that the maximum possible sentence he faced was 45 years. McCranie testified that his plea was freely and voluntarily entered, and trial counsel acknowledged that McCranie had confessed to the crimes.

McCranie testified that he understood the charges against him, he was guilty of those charges, he understood his right to counsel and he was satisfied with his counsel’s representation. Trial counsel advised McCranie that he had four years to file a petition for habeas corpus, and the trial court advised him of the conditions of probation for sex offenders.

Ultimately, McCranie entered into a negotiated plea to child molestation and statutory rape. The trial court sentenced McCranie to twenty years for child molestation, with fifteen years to be served in confinement, the remaining five years to be served on probation, and ten consecutive years to be served on probation for statutory rape, for a total sentence of thirty years with fifteen years to serve. After sentencing McCranie, the trial court concluded, “I don’t know if you’ve got a mental problem or you’re just stupid, but you act like it don’t make a rat’s ass to you what I just did.”

Trial counsel did not thereafter file a motion to withdraw McCranie’s guilty plea or a notice of appeal. In April 2015, McCranie filed a consolidated motion to vacate a void sentence, to withdraw his guilty plea, and for an out-of-time appeal. Without conducting an eviden-tiary hearing, the trial court denied McCranie’s consolidated motion, finding that his sentence was not void and he had slept on his appellate rights by failing to file a timely appeal or a habeas corpus petition. This direct appeal ensued.

1. On appeal, McCranie contends that the trial court erred in denying his motion to withdraw his guilty plea. McCranie’s motion to withdraw his guilty plea was clearly untimely because he filed it several years after the trial court lost its authority to allow the withdrawal of the plea. See McGee v. State, 296 Ga. 353 (1) (765 SE2d 347) (2014) (“Itis well settled that, when the term of court has expired in which a defendant was sentenced pursuant to a guilty plea, the trial court lacks jurisdiction to allow the withdrawal of the plea.”) (citation and punctuation omitted). Therefore, we affirm the denial of McCranie’s motion to withdraw his guilty plea.

2. McCranie also contends that the trial court erred in denying his motion for an out-of-time appeal. We agree.

Out-of-time appeals are designed to address the constitutional concerns that arise when a criminal defendant is denied his first appeal of right because the counsel to which he was constitutionally entitled to assist him in that appeal was professionally deficient in not advising him to file a timely appeal and that deficiency caused prejudice. . . . However, for an out-of-time appeal to be available on the grounds of ineffective assistance of counsel, the defendant must necessarily have had the right to file a direct appeal. A direct appeal from a judgment of conviction and sentence entered on a guilty plea is only available if the issue on appeal can be resolved by reference to facts on the record. The ability to decide the appeal based on the existing record thus becomes the deciding factor in determining the availability of an out-of-time appeal when the defendant has pled guilty. Issues regarding the effectiveness of counsel are not reached unless the requirement that the appeal be resolved by reference to facts on the record is met.

(Citations omitted.) Stephens v. State, 291 Ga. 837, 837-838 (2) (733 SE2d 266) (2012).

Accordingly, there are several steps that this Court must undertake in analyzing a defendant’s motion for an out-of-time appeal.

First, if the issues that a defendant who pled guilty seeks to appeal cannot be resolved using the existing record, he would have had no right to file even a timely appeal and therefore is also not entitled to an out-of-time appeal. Claims that require expansion of the record must instead be pursued in a habeas corpus petition.

(Citation omitted.) Stephens, supra, 291 Ga. at 838 (2). If, however, the defendant raises issues that can be determined as a matter of law or fact on the existing record, then the defendant must show that counsel was ineffective in not filing a timely appeal. Stephens, supra, 291 Ga. at 838 (2). “With regard to an out-of-time appeal, the only relevant effectiveness factor is whether the defendant had a possible ground for appeal about which his lawyer failed to inform him.” (Citation omitted.) Barlow v. State, 282 Ga. 232, 234 (647 SE2d 46) (2007).

(a) McCranie argues that the trial court erred in denying his motion for an out-of-time appeal because his plea was involuntary on the grounds that he was not advised of his right to withdraw his guilty plea or of his right to appeal. The record shows, however, that trial counsel advised McCranie of his right to withdraw his guilty plea and go to trial.

(b) In considering McCranie’s argument that trial counsel was ineffective for failing to advise him of his right to appeal, the only relevant factor is whether McCranie had a possible ground for appeal about which his lawyer failed to inform him. See Barlow, supra, 282 Ga. at 234. McCranie argues that he had a ground to challenge his plea as being involuntary because the trial court impermissibly interfered in the plea negotiation. The State concedes, and the record reflects, that the trial court’s interference in plea negotiations casts doubt as to whether McCranie’s plea was voluntary.

“Judicial participation in the plea negotiation process is prohibited by court rule” in this state and “is prohibited as a constitutional matter when it is so great as to render a guilty plea involuntary.” (Citations and punctuation omitted.) McDaniel v. State, 271 Ga. 552, 553 (2) (522 SE2d 648) (1999); see also Uniform Superior Court Rule (USCR) 33.5 (A) (“The trial judge should not participate in plea discussions.”).

Due to the force and majesty of the judiciary, a trial court’s participation in the plea negotiation may skew the defendant’s decision-making and render the plea involuntary because a defendant may disregard proper considerations and waive rights based solely on the trial court’s stated inclination as to sentence.

(Citation omitted.) McDaniel, supra, 271 Ga. at 554 (2).

Here, the trial court not only rejected the negotiated plea, but repeatedly indicated that it wished to sentence McCranie to a longer sentence. The trial court also stated that it would be happy for McCranie to withdraw his plea so that the trial court could preside over his trial. McCranie ultimately agreed to enter a guilty plea with less favorable terms than those which he had originally negotiated. Thus, the judicial participation in the plea negotiations in this case was so great as to render McCranie’s resulting guilty plea involuntary. See Pride v. Kemp, 289 Ga. 353, 354-355 (711 SE2d 653) (2011) (guilty plea was involuntary where trial court repeatedly indicated that it would impose a longer sentence if defendant went to trial and would prefer for defendant to go to trial so that the court could impose a longer sentence). Accordingly, McCranie had a possible ground for direct appeal based on the trial court’s interference in the plea negotiations. See McDaniel, supra, 271 Ga. at 554 (2) (reversing defendant’s conviction where trial court interfered with plea negotiations).

(c) While the trial court concluded that McCranie slept on his appellate rights by failing to file a habeas corpus petition despite being advised of this right, where, as here, a defendant alleges deprivation of the right to direct appeal due to trial counsel’s ineffective assistance, the trial court is required to make an inquiry as to whether the defendant was responsible for the failure to pursue a timely direct appeal. See Simmons v. State, 276 Ga. 525 (579 SE2d 735) (2003). A trial court abuses its discretion when it fails to make such a factual inquiry. Id.

Here, the trial court erred when it denied McCranie’s motion without making a factual inquiry into whether McCranie’s failure to timely pursue a direct appeal was attributable to him or trial counsel.

See Jackson v. State, 280 Ga. 27, 28 (622 SE2d 356) (2005). Accordingly, we reverse the trial court’s denial of McCranie’s motion for out-of-time appeal and remand the case for the trial court to conduct the requisite factual inquiry. See id.; see also Fleming v. State, 276 Ga. App. 491, 494 (1) (623 SE2d 696) (2005) (when defendant filed a motion for an out-of-time appeal following a guilty plea, he was entitled to a hearing on the issue of whether his right to appeal was frustrated by the ineffective assistance of counsel).

3. While not raised on appeal, McCranie argued below that the trial court should have merged his conviction for statutory rape into his conviction for child molestation. We disagree.

Appellate courts may resolve merger issues, even where the issue is not enumerated as error on appeal. Nazario v. State, 293 Ga. 480, 485-486 (2) (b) (746 SE2d 109) (2013) (merger claims cannot be waived because a conviction that merges is void and the resulting sentence is void and illegal and may be challenged in any proper proceeding). Moreover, the merits of a merger issue can also be considered in an appeal from a denial of a motion for an out-of-time appeal. See Dennis v. State, 292 Ga. 303, 304 (736 SE2d 428) (2013) (rejecting on the merits defendant’s merger claim in an appeal from a denial of a motion for out-of-time appeal). Nevertheless, when the merger issue arises after a defendant has pled guilty, this Court is

limited to finding error, as in all cases, based on the record.... While a defendant does not waive consideration of merger issues by pleading guilty, his guilty plea does waive the expansion of the factual record that occurs with a trial. The practical effect of that waiver will usually mean that he cannot establish (and the court cannot discern) that any of his convictions merged, particularly as a matter of fact, based on the limited record.

(Emphasis omitted.) Nazario, supra, 293 Ga. at 488 (2) (d).

Here, McCranie was indicted for one count of child molestation and one count of statutory rape, each based on an act of sexual intercourse with the victim. McCranie argues that his convictions for statutory rape and child molestation merge because the State conceded at the plea hearing that only a single act of sexual intercourse occurred between him and the victim. Compare Hixon v. State, 251 Ga. App. 27, 29-30 (2) (553 SE2d 333) (2001) (crimes of statutory rape and child molestation did not merge where there was more than one act of sexual intercourse between the defendants and the victim) with Dorsey v. State, 265 Ga. App. 404, 406 (2) (593 SE2d 945) (2004) (defendant may not be convicted of both statutory rape and child molestation based on one act of sexual intercourse). This claim is belied by the record.

At the plea hearing, the State submitted that McCranie was living with the victim’s family at the time of the offenses and had “at least one act of sexual intercourse” with the victim during the relevant time frame. (Emphasis supplied.) McCranie admitted, in open court, and to his wife and in statements to the police, that he had sexual intercourse with the victim. Nothing in the indictment or the factual basis elicited at the plea hearing requires a finding that there was only one act of sexual intercourse. “Perhaps further facts regarding these two charges would have emerged had there been a trial, but [McCranie] chose to plead guilty instead of going to trial.” Nazario, supra, 293 Ga. at 490 (3) (a). Therefore, based on the record before us, McCranie cannot show that his convictions for statutory rape and child molestation merged.

4. McCranie also challenges the trial court’s denial of his motion to vacate a void sentence, contending that he was entitled to a split sentence and a downward deviation under former OCGA § 17-10-6.2. We agree that McCranie’s sentence for statutory rape does not comply with former OCGA § 17-10-6.2 (b) and, accordingly, we vacate it and remand to the trial court for resentencing.

A sentence is void if the court “imposes punishment that the law does not allow.” (Punctuation omitted.) Rooney v. State, 287 Ga. 1, 2 (2) (690 SE2d 804) (2010). “Moreover, a sentencing court retains jurisdiction to correct a void sentence at any time.” (Citations and punctuation omitted.) Id. A direct appeal may lie from an order denying a motion to vacate or correct a void sentence, but only if the defendant raises a colorable claim that the sentence is, in fact, void. See Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009).

Motions to vacate a void sentence generally are limited to claims that — even assuming the existence and validity of the conviction for which the sentence was imposed — the law does not authorize that sentence, most typically because it exceeds the most severe punishment for which the applicable penal statute provides.

(Citations omitted.) von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013).

The relevant sentencing statute is former OCGA § 17-10-6.2, which pertains to the sentencing of people convicted of sexual offenses, including child molestation and statutory rape where the defendant is 21 years old or older. See former OCGA § 17-10-6.2 (a) (4), (5). At the time of sentencing, McCranie was 38 years old.

Former OCGA § 17-10-6.2 provides, in relevant part:

(b) Except as provided in subsection (c) of this Code section, and notwithstanding any other provisions of law to the contrary, any person convicted of a sexual offense shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to the offense. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and such sentence shall include, in addition to the mandatory imprisonment, an additional probated sentence of at least one year. . . .

(Emphasis supplied.)

The trial court is permitted, at its discretion, to deviate from the mandatory minimum sentences set forth in former OCGA § 17-10-6.2 (b). See former OCGA § 17-10-6.2 (c). Downward deviations, however, are only permitted where certain conditions are met. Id. The trial court is also required to issue a written order setting forth its reasons for the deviation. See former OCGA § 17-10-6.2 (c) (2).

Former OCGA § 17-10-6.2 (b) made “clear that for each applicable offense, the trial court must — with the exception of situations that fall under subsection (c) — sentence a defendant to at least the mandatory minimum sentence and include an additional probated sentence of at least one year.” (Footnotes and emphasis omitted.) New v. State, 327 Ga. App. 87, 108 (5) (755 SE2d 568) (2014).

The child molestation and statutory rape statutes explicitly provide that persons convicted of these offenses are subject to the sentencing provisions of former OCGA § 17-10-6.2. See OCGA §§ 16-6-3 (b); 16-6-4 (b) (1). For child molestation, the minimum sentence is five years imprisonment and the maximum sentence is twenty years imprisonment. OCGA § 16-6-4 (b) (1). The trial court sentenced McCranie to twenty years for child molestation, with fifteen years to be served in confinement, and the remaining five years to be served on probation. This sentence conforms to former OCGA § 17-10-6.2 (b).

Decided February 2, 2016.

Christopher S. McCranie, pro se.

Richard G. Milam, District Attorney, Lauren Deal, Assistant District Attorney, for appellee.

For statutory rape, where the defendant is twenty-one years or older, the minimum sentence is ten years imprisonment and the maximum sentence is twenty years imprisonment. OCGA § 16-6-3 (b). Here, the trial court sentenced McCranie to ten years probation. Although the trial court had the discretion to deviate from the mandatory minimum pursuant to former OCGA § 17-10-6.2 (c), the record is devoid of any mention at all of former OCGA § 17-10-6.2 or any discussion of the factors that must be considered under the statute. Moreover, the trial court did not enter the required written findings indicating that it was exercising its discretion to deviate from the mandatory minimum. See former OCGA § 17-10-6.2 (c) (2). Since the trial court did not sentence McCranie to the mandatory minimum, or otherwise comply with the requirements of former OCGA § 17-10-6.2 (c), McCranie’s sentence for statutory rape is void. See Priest v. State, 281 Ga. App. 89, 90 (3) (635 SE2d 377) (2006) (where mandatory minimum sentence for serious violent felony was ten years imprisonment, sentence often years probation was null and void).

Accordingly, we vacate McCranie’s sentence for statutory rape and remand to the trial court for resentencing so that the trial court can either sentence McCranie to the mandatory minimum or issue a written order setting forth its reasons for deviating therefrom.

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

Andrews, P. J., and Rickman, J., concur.

       The State nolle prossed one count of sexual battery against a child under the age of 16 (OCGA § 16-6-22.1 (b)).

       “The denial of a motion for out-of-time appeal is directly appealable when the criminal conviction at issue has not been the subject of direct appeal.” (Citation and punctuation omitted.) Stephens v. State, 291 Ga. 837 (1) (733 SE2d 266) (2012).

       In Georgia, “the district attorney represents the people of the state in prosecuting individuals who have been charged with violating our state’s criminal laws.” (Citation and punctuation omitted.) Mowoe v. State, 328 Ga. App. 539, 540 (2) (a) (759 SE2d 663) (2014). A public prosecutor’s duty “is to seek justice, not merely to convict.” (Citation and punctuation omitted.) Carr v. State, 267 Ga. 701, 712 (10) (482 SE2d 314) (1997). Moreover, “it is the duty of a prosecuting attorney to see that justice is done and nothing more.” (Punctuation omitted.) Id. Accordingly, we commend the State for taking the initiative in this case and pointing out the deficiencies in the plea process.

       USCR 33.5 (B) sets out the responsibilities of the trial judge with regard to plea negotiations. That Rule provides:
      If a tentative plea agreement has been reached, upon request of the parties, the trial judge may permit the parties to disclose the tentative agreement and the reasons therefor in advance of the time for the tendering of the plea. The judge may then indicate to the prosecuting attorney and defense counsel whether the judge will likely concur in the proposed disposition^]... If the trial judge concurs but the final disposition differs from that contemplated by the plea agreement, then the judge shall state for the record what information in the presentence report or hearing contributed to the decision not to sentence in accordance with the plea agreement.

       Pursuant to former OCGA § 17-10-6.2 (c) (1), the trial court may deviate where:
      (A) The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor a prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of offenses prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16; (B) The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense; (C) The court has not found evidence of a relevant similar transaction; (D) The victim did not suffer any intentional physical harm during the commission of the offense; (E) The offense did not involve the transportation of the victim; and (F) The victim was not physically restrained during the commission of the offense.


author: Dillard, Judge.

text:
    A15A2180.
    FRANKLIN v. THE STATE.
    (782 SE2d 461)
   Dillard, Judge.

Following a trial by jury, Charles Franklin was convicted of rape, aggravated sodomy, aggravated assault, aggravated battery, false imprisonment, and the false report of a crime. Franklin’s sole contention on appeal is that the trial court erred in failing to sua sponte give an instruction on mistake of fact. For the reasons set forth infra, we reject this contention and affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the record reflects that at approximately 8:00 a.m. on April 13, 2010, the victim, Franklin’s then-wife, met him at a rental home that was the subject of a dispute between the newly separated couple. When the wife arrived, Franklin invited her inside and showed her over to a credenza to review and sign some paperwork related to the property. But as the victim bent over to sign the paperwork, Franklin struck her in the head from behind with a metal baseball bat. He then proceeded to beat the victim’s head, arms, and body, before dragging her bloodied body into the dining room, propping her against a wall, and brandishing a handgun at her.

When the victim raised an arm to shield herself, Franklin struck her yet again, picked her up off the floor, and then moved her into a bedroom around the corner. Once there, Franklin proceeded to bind the victim’s arms and legs to the posters of the bed with a belt, duct tape, and wire. The victim was able to retrieve the bat and swing it at Franklin, but he wrested it from her and beat her once again about the head and abdomen. Franklin then used a box cutter to remove the victim’s clothing, lacerating her leg in the process, and then undressed. Thereafter, Franklin repeatedly raped the victim, and at one point anally sodomized her, until approximately 3:30 p.m. When Franklin was not raping the victim, he was yelling at her about her “failures” as a wife and mother, and the victim observed that the handgun was in the room during the entire harrowing ordeal.

At some point after Franklin had severely beaten the victim and bound her to the bed, she decided to stop resisting in an effort to calm Franklin and persuade him to untie her. She first asked him to untie one of her arms that had become numb and swollen, and then she requested that he untie her legs under the guise that intercourse would “be easier.” Over the course of the day, Franklin began to suggest that the two of them should again be together as a couple, to which the victim — who was panicking because she had lost a lot of blood from the gash in her head — agreed. She then requested that Franklin administer medical aid and agreed to go along with a home-invasion story that Franklin concocted in order to receive treatment for her injuries.

Subsequently, Franklin placed a band-aid on the victim’s injured leg, hid the various implements that he had used in the attack, kicked in the back door to make the scene look like a home invasion, and called 911 to report that he had just returned home to see two men fleeing the house after sexually assaulting his wife. When law enforcement arrived and the victim was finally able to speak with an officer alone, she informed him of what had really occurred, and Franklin was immediately placed under arrest. Following trial, Franklin was convicted of the offenses enumerated supra. This appeal follows.

As previously noted, Franklin’s sole argument on appeal is that the trial court erred in failing to sua sponte give an instruction on mistake of fact. We disagree.

To begin with, it is true that the trial court must “charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge.” And with respect to “mistake of fact,” which is an affirmative defense, a person “shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.” Additionally, because mistake of fact is an affirmative defense, even if it was not Franklin’s sole defense, if the defense was raised by the evidence,

the trial court would have been required to present the affirmative defense to the jury as part of the case in its charge, even absent a request. The affirmative defense, however, would not have to be specifically charged if the case as a whole had been fairly presented to the jury.

But importantly, our Supreme Court has previously held that, in cases in which a jury finds a defendant guilty of forcible rape after proper instruction, “[t]he element of force negates any possible mistake as to consent,” such, that the court does not err by failing to charge on mistake of fact.

A person commits forcible rape when “he has carnal knowledge of[ ] . . . [a] female forcibly and against her will[.]” And a person commits aggravated sodomy when he or she “commits sodomy with force and against the will of the other person ... .” Here, mistake of fact was not Franklin’s sole defense to these charges, as he claims on appeal. Instead, the record reflects that Franklin, who did not testify in his own defense, attempted to show that intercourse with the victim was consensual, not that he mistakenly believed that it was consensual.

Indeed, a detective who investigated the case and interviewed Franklin testified that Franklin maintained that he did not rape the victim because either he and the victim engaged in consensual intercourse prior to her attack by two unknown assailants or, in the alternative, that he and the victim willingly engaged in “kinky” sex after a domestic dispute during which he struck the victim. And in closing argument, Franklin’s counsel repeatedly argued that the State failed to prove that the intercourse was not consensual and suggested that the victim had fabricated and orchestrated the entire encounter to exact revenge upon Franklin for problems in their relationship. In contrast, on appeal, Franklin focuses on testimony by the victim that Franklin might have believed the intercourse was consensual when she feigned interest in order to diffuse the situation and survive the attack.

However, although the victim suggested that Franklin might have believed that the intercourse was consensual, she also unequivocally testified that she was in fear for her life, she acted as she did to prevent Franklin from killing her, she did not want Franklin to think she was going to attempt an escape, and the only message she was trying to convey was that she did not want to fight him any further. The victim further testified that if Franklin “doesn’t think he’s raping me, if he thinks it’s fine, then something is wrong with him. I’m sitting on the bed bleeding and he’s cutting my clothes off and he’s thinking that this sex is consensual.” Finally, the investigating detective also testified that the victim told him she had been instructed in a self-defense class to “kind of go along with it” to ease any tension with an attacker, but that she had not wanted to engage in intercourse or anal sodomy and was instead “just trying to stay alive.”

The defense of mistake of fact, then, was not reasonably (or even remotely) raised by the evidence when the victim’s physical resistance ended and her demeanor changed after being brutally beaten with a baseball bat, threatened at gunpoint, dragged bleeding through a house, ruthlessly bound to a bed, beaten with the bat again after resisting, and lacerated with a box cutter while her clothes were forcibly removed, all while Franklin kept a handgun nearby and repeatedly verbally berated the victim. Indeed, as our Supreme Court has recognized, a lack of resistance that is induced by fear is not legally cognizable consent but instead constitutes force. And here, because the jury was otherwise properly instructed, and found Franklin guilty of forcible rape and forcible aggravated sodomy, the element of force negated any possible mistake as to consent.

Accordingly, for all of the foregoing reasons, we affirm.

Judgment affirmed.

Ellington, P. J., and McFadden, J., concur.

Decided February 2, 2016.

Tyler R. Conklin, James C. Bonner, Jr., for appellant.

Paul L. Howard, Jr., District Attorney, Joshua D. Morrison, Assistant District Attorney, for appellee.

        See, e.g., Muse v. State, 323 Ga. App. 779, 780 (748 SE2d 136) (2013).

       Although Franklin does not challenge the sufficiency of the evidence on appeal, we nevertheless find the evidence sufficient to enable a rational trier of fact to find Franklin guilty of all the crimes for which he was convicted beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

        Price v. State, 289 Ga. 459, 459 (2) (712 SE2d 828) (2011) (punctuation omitted); accord Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991).

       OCGA § 16-3-5; see also Price, 289 Ga. at 459 (2).

        Price, 289 Ga. at 459-60 (2) (punctuation omitted); accord Booker v. State, 247 Ga. 74, 74 (274 SE2d 334) (1981); Redding v. State, 318 Ga. App. 84, 86 (1) (733 SE2d 383) (2012).

        Lamar v. State, 243 Ga. 401, 403 (6) (254 SE2d 353) (1979); accord Baise v. State, 232 Ga. App. 556, 558 (1) (502 SE2d 492) (1998); Johnson v. State, 204 Ga. App. 369, 369 (1) (419 SE2d 96) (1992).

        See Lamar, 243 Ga. at 403 (6) (holding that appellant’s contention that trial court erred in failing to charge on mistake of fact was without merit when jury was properly charged as to forcible rape and found appellant guilty of same); see also Johnson, 204 Ga. App. at 369 (1).

       OCGA § 16-6-1 (a) (1).

       OCGA § 16-6-2 (a) (2); see also OCGA § 16-6-2 (a) (1) (“A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.”).

        Cf. Price, 289 Ga. at 460 (2) (holding that appellant was entitled to jury charge as to mistake of fact in prosecution for burglary when he consistently testified that he saw “for sale” and “open house” signs, which led him to believe he was authorized to enter house; that he entered through open door and spoke with his mother on phone about buying house while examining the inside; and two other witnesses testified about “for sale” and “open house” signs — all of which was evidence that appellant acted under misapprehension of fact which, if true, would have justified his entry into house and would have authorized jury to acquit him of burglary).

        Derr v. State, 239 Ga. 582, 582 (1) (238 SE2d 355) (1977); Farmer v. State, 197 Ga. App. 267, 267 (1) (398 SE2d 235) (1990); Walker v. State, 157 Ga. App. 728, 729 (1) (278 SE2d 487) (1981); see also Dasher v. State, 281 Ga. App. 326, 328 (1) (a) (636 SE2d 83) (2006) (“[A] victim’s lack of resistance induced by fear authorizes a finding of force.”); Geckles v. State, 177 Ga. App. 70, 73-74 (3) (338 SE2d 473) (1985) (“[Tjestimony regarding a knife and appellant’s alleged assault with said knife upon the victim’s mother was relevant as tending to explain why the victim feared appellant and to establish that any ‘consent’ on the part of the victim to the sexual acts charged in the indictment was induced by fear.”).

       A review of the jury instructions shows that the trial court properly instructed the jury as to the terms of the indictment, the presumption of innocence, the State’s burden of proof, the essential element of intent, and the definitions of rape and aggravated sodomy.

        See Lamar, 243 Ga. at 403 (6); see also Walker, 157 Ga. App. at 729 (1) (holding that evidence was “more than sufficient to establish that the victim was raped,” despite a lack of physical resistance by the victim, when the appellant “broke through a locked door, jumped on top of the victim and put his hand over her mouth” and victim asked appellant not to hurt her, indicating her fear).


author: Ray, Judge.

text:
    A15A2247.
    In the Interest of W. L., a child.
    (782 SE2d 464)
   Ray, Judge.

On March 25, 2015, the Juvenile Court of Monroe County entered orders adjudicating W. L., a minor, delinquent of various offenses, ordering him to pay restitution, and transferring the case to the Juvenile Court of Peach County for final disposition. W. L. filed a direct appeal from the restitution order. Because we find that the order appealed was interlocutory, it is not appealable without compliance with the interlocutory appeal procedure of OCGA § 5-6-34 (b). Accordingly, we dismiss this appeal as premature because the case remains pending in the juvenile court.

On March 25, 2015, W. L. rendered an admission in open court and was adjudicated delinquent by the Juvenile Court of Monroe County for the offenses of theft by receiving stolen property, fleeing or attempting to elude officers, and reckless driving after he took a bus from a church and damaged it while attempting to run away from his assigned group home. In its order, the Juvenile Court of Monroe County acknowledged that W. L. was a resident of Peach County and transferred the case to the Juvenile Court of Peach County for a final adjudication. On the same day, the Juvenile Court of Monroe County entered an order finding that W. L. had caused property damage and ordered that he pay $5,508.38 in restitution. W. L. argues on appeal that the juvenile court erred in awarding restitution without first considering evidence that he had no financial ability to pay the amount of restitution and no prospect of being able to pay in the foreseeable future.

The State contends that this Court is without jurisdiction to consider W. L.’s direct appeal because it arises, in part, from an order transferring the case to the Juvenile Court of Peach County and, therefore, was not a final order. We agree.

Under Georgia law, an interlocutory transfer order may be converted into a final appealable order only if it falls under OCGA § 5-6-34 (a) (1), which provides:

Appeals may be taken to the Supreme Court and the Court of Appeals from the following judgments and rulings . . . : All final judgments, that is to say, where the case is no longer pending in the court below, except as provided in Code Section 5-6-35[.]

(Emphasis supplied.) “The ‘in the court below’ language in [OCGA] § 5-6-34 (a) (1) is generally used to refer to a trial court as distinguished from an appellate court.” Lops v. Lops, 140 F3d 927, 939 (V) (C) (11th Cir. 1998). Further, Georgia courts have repeatedly held that transfer orders are not appealable orders under OCGA § 5-6-34 (a) (1) because a case transferred from one trial court to another trial court is still “pending in the court below.” See, e.g., Wright v. Millines, 212 Ga. App. 453, 453 (442 SE2d 304) (1994) (dismissing a direct appeal from the superior court’s order transferring the case to the superior court of a different county, concluding that the appeals were “premature as there is no final judgment and the case remains pending in the trial court”); Griffith v. Ga. Bd. of Dentistry, 175 Ga. App. 533, 533 (333 SE2d 647) (1985) (dismissing a direct appeal from an order transferring the case from one jurisdiction to another, concluding that “[t]he subject transfer order is not a final judgment as the case is still pending in the court below, albeit a different court from the one ordering the transfer”).

This general rule that transfer orders are not “final appealable orders” may also adhere when an order transfers a case to a different type of trial court below. In Fulton County Dept. of Family & Children Sues. v. Perkins, 244 Ga. 237, 237-238 (259 SE2d 427) (1978), a child’s former foster parents filed a complaint in the superior court seeking to adopt the child and seeking a writ of habeas corpus returning the child to their custody. The superior court dismissed all claims except the habeas petition and transferred the case to the juvenile court, which had earlier dealt with matters relating to custody of the child. The juvenile court then transferred the case back to the superior court. DFACS appealed, contending that both transfer orders were final. Id. at 238. Our Supreme Court disagreed and dismissed the appeal, finding that neither order was final because despite the transfer of forum, “[a] transfer of a child custody case is a continuation of that proceeding” and does not change the nature of the proceeding. Id. at 240. Our Supreme Court distinguished the facts of Perkins from a case wherein a criminal case is transferred from a juvenile court to a superior court because “a transfer of a juvenile [to a superior court] for trial of a crime as an adult is not a continuation of the same proceeding.” Id. See, e.g., J. T. M. v. State of Ga., 142 Ga. App. 635, 635-636 (1) (236 SE2d 764) (1977) (order transferring juvenile criminal proceeding to superior court is final for purposes of filing a direct appeal).

Decided February 2, 2016.

Clare Nolan, for appellant.

Richard G. Milam, District Attorney, Anita R. Reynolds, Assistant District Attorney, for appellee.

In the present case, W. L. filed a direct appeal from an order transferring the case from the Juvenile Court of Monroe County to the Juvenile Court of Peach County. This transfer order is not final because it is the continuation of the same proceeding against W. L. Accordingly, we find that W. L.’s direct appeal is premature as there is no final judgment and the case remains pending in the juvenile court below. Therefore, the order from which W. L. seeks to appeal is interlocutory and not appealable without compliance with the interlocutory appeal procedure of OCGA § 5-6-34 (b). Wright, supra.

Appeal dismissed.

Barnes, P. J., and McMillian, J., concur.

       OCGA § 5-6-35 is not applicable in the present case.


author: PHIPPS, Presiding Judge.

text:
    A13A1940.
    JONES v. THE STATE.
    (782 SE2d 466)
   PHIPPS, Presiding Judge.

In State v. Jones, the Supreme Court of Georgia reversed this court’s decision in Jones v. State, , in which this court reversed under OCGA § 24-4-404 (b) of the new Evidence Code the trial court’s decision to admit in Michael Jones’s trial for driving under the influence of alcohol (“DUI”) (less safe and per se) evidence of a prior conviction for DUI (less safe). The Supreme Court upheld the trial court’s decision to admit the evidence on the basis that it was relevant to show Jones’s intent in the charged offenses. Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own. The Supreme Court also remanded the case to this court for consideration of whether the trial court erred in its evaluation of the admissibility of the prior conviction evidence under OCGA § 24-4-403. Accordingly, we render the following opinion regarding the admissibility of the evidence under OCGA § 24-4-403.

Pursuant to OCGA § 24-4-403: “Relevant evidence maybe excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The Supreme Court has stated:

Unfortunately, there is no mechanical solution for this balancing test. Instead, a trial court must undertake in each case a considered evaluation of the proffered justification for the admission of such evidence and make an independent determination of whether the probative value of the evidence “is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

The Eleventh Circuit has held that under Federal Rule of Evidence 403, the federal counterpart of OCGA § 24-4-403, the determination of whether the probative value of extrinsic acts evidence outweighs its prejudicial effect “lies within the discretion of the [trial] court and calls for a common sense assessment of all the circumstances surrounding the extrinsic [act], including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness.” Furthermore, the Eleventh Circuit has determined that application of Rule 403 “is an extraordinary remedy which should be used only sparingly since it permits the trial court to exclude concededly probative evidence.” “A trial court’s decision to admit other acts evidence will be overturned only where there is a clear abuse of discretion.”

In this case, the trial court heard argument regarding whether the probative value of the prior conviction evidence substantially outweighed its prejudicial effect, undertook a considered evaluation of the proffered justification for the admission of such evidence, and made an independent determination that the probative value of the evidence substantially outweighed its prejudicial effect. The trial court noted that: (1) the circumstances surrounding the prior conviction were similar to the circumstances involving the charged offenses and, likewise, involved a charge for DUI (less safe); and (2) the charged offenses allegedly occurred five to six years after the extrinsic offense, when Jones would have had “[k]nowledge of the fact that he was less safe because he was [less safe] before.” Moreover, the record demonstrates the state’s need to introduce the prior conviction evidence because, as the Supreme Court explained, “[a] genuine issue regarding whether Jones was voluntarily driving while under the influence of alcohol was raised by [his] defense,” and the prior conviction evidence “had a tendency to make the existence of his general intent to drive under the influence more probable and would authorize a jury to logically infer that Jones was voluntarily driving while under the influence.” Given these circumstances, we cannot say that the trial court abused its discretion in finding that the probative value of evidence of Jones’s prior conviction was not substantially outweighed by its prejudicial effect.

Decided February 3, 2016

Filipovits Law Firm, Jeffrey R. Filipovits; Chestney Law Firm, Rebecca T. Kozycki, for appellant.

Jessica K. Moss, Solicitor-General, Barry W. Hixson, Assistant Solicitor-General, for appellee.

Judgment affirmed.

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

       297 Ga. 156, 159 (2) (773 SE2d 170) (2015) (“Jones II”).

       326 Ga. App. 658 (757 SE2d 261) (2014) (“Jones I”).

        Jones II, supra at 162 (2).

       Id. at 163 (3) (citations omitted).

        United States v. Perez, 443 F3d 772, 780 (II) (11th Cir. 2006) (citation and punctuation omitted). See Bradshaw v. State, 296 Ga. 650, 657-658 (3) (769 SE2d 892) (2015).

        United States v. Merrill, 513 F3d 1293, 1301 (II) (B) (11th Cir. 2008) (citation and punctuation omitted). See Bradshaw, supra at 658 (3).

        Jones II, supra at 159 (1) (citations omitted).

       Id. at 161 (2).

       Id. at 163 (2) (citation omitted).

       See generally Perez, supra at 779-780 (II) (by his theory of defense, the defendant made his knowledge and intent a focal point of the case, plainly making the evidence of his prior conviction admissible for nonpropensity purposes; the district court did not abuse its discretion when it determined the probative value of the defendant’s prior conviction, which involved a similar act as the charged offenses and took place less than two years before the instant offense, outweighed its prejudicial effect); Watford v. State, 332 Ga. App. 499, 505 (773 SE2d 452) (2015).