text:
    A11A0616.
    WARREN v. THE STATE.
    (711 SE2d 108)
   Andrews, Judge.

Marjorie Warren appeals from the judgment of conviction entered on a jury verdict finding her guilty of fifty-two counts of first degree forgery, fifty counts of felony theft by taking of property exceeding $500 in value, and two counts of misdemeanor theft by taking of property not exceeding $500 in value. For the following reasons, we find no error and affirm.

1. Contrary to Warren’s contention, the evidence was sufficient to support the guilty verdict.

The State presented evidence that, while Warren was the business manager for a doctor’s medical practice, she engaged in a scheme to steal money from the practice. Evidence showed that, without authority from the doctor who owned the practice, Warren filled out and signed over 52 checks drawn on the practice’s bank account totaling over $100,000, and then mailed the checks to creditors who accepted the checks as payments on her personal credit card debts. Evidence showed that Warren attempted to hide the theft by creating records which obscured that the checks were used to pay her credit card debt. Warren testified in her own defense that the doctor gave her authority to write the checks and that, with the doctor’s approval, all of the checks were legitimate reimbursements to her for items she purchased for the practice on her personal credit cards. As to the records she created which failed to disclose that the checks paid off her credit cards, Warren testified that she made clerical mistakes. The doctor who owned the practice testified that Warren had no authority to sign the checks; that it was not her responsibility to make major purchases for the practice; that he never authorized her to make purchases for the practice on her personal credit cards; nor did he authorize her to pay personal credit card debts with checks drawn on the practice’s bank account.

Viewed in favor of the guilty verdicts, the evidence was sufficient to establish beyond a reasonable doubt: (1) that Warren was guilty of all fifty-two counts of first degree forgery in violation of OCGA § 16-9-1 when, with intent to defraud the doctor and his medical practice, she knowingly possessed fifty-two checks drawn on the practice’s bank account without authority, and uttered the checks as payment on her personal credit card debt; and (2) that Warren was guilty of fifty counts of felony theft by taking of property and two counts of misdemeanor theft by taking in violation of OCGA §§ 16-8-2 and 16-8-12 (a) (1) when she used the above-referenced fifty-two checks (fifty checks in excess of $500 and two checks less than $500) to unlawfully take money from the medical practice’s bank account belonging to the doctor and his practice with the intention of depriving the owners of the money. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. We find no merit to Warren’s contention that the State failed to prove venue beyond a reasonable doubt on the first degree forgery counts.

Warren contends that the State failed to prove beyond a reasonable doubt that, as alleged in the indictment, she uttered the 52 checks at the location of the doctor’s practice in Athens, Clarke County, Georgia. Venue in criminal cases is the county where the crime was committed. Ga. Const, of 1983, Art. VI, Sec. II, Par. VI. As a jurisdictional fact, venue is an essential element of the charged crime which must be proved beyond a reasonable doubt. Bell v. State, 284 Ga. 790, 792 (671 SE2d 815) (2009). As with any element of a charged offense, the State may use direct or circumstantial evidence to prove venue. Id. at 793.

A check may be uttered by “ offer [ing] directly or indirectly, by words or actions, such document as good.” (Punctuation omitted.) Walker v. State, 127 Ga. 48, 49-50 (56 SE 113) (1906). “An offer to pass a check to another person as a genuine instrument constitutes ‘uttering.’ ” Hudson v. State, 188 Ga. App. 684, 689 (374 SE2d 212) (1988). The State showed that Warren was the business manager for the doctor’s medical practice located in the city of Athens in Clarke County, and that working in that capacity Warren filled out and signed checks drawn on the practice’s bank account and sent the checks in the mail offering them as payments on her personal credit card debts. This was direct and circumstantial evidence sufficient to prove beyond a reasonable doubt that she uttered the checks from the location of the medical practice where she worked in Clarke County.

Decided May 16, 2011.

Thomas J. Killeen, for appellant.

Kenneth W Mauldin, District Attorney, Lisa M. Pappas, Brian V. Patterson, Assistant District Attorneys, for appellee.

3. Warren claims that, over her objection, the trial court erroneously admitted her credit card statements into evidence under the business records exception to the hearsay rule set forth in OCGA § 24-3-14. The trial court admitted all of the statements as credit card company business records under OCGA § 24-3-14 based on foundational testimony given by representatives of the companies. Warren objected that the foundational testimony was inadequate because the portions of the statements showing her credit card purchases from third-party merchants were not business records generated by the credit card companies, but were business records generated by the merchants that required additional foundational testimony from the merchants. The record shows that, at or near the time credit card purchases were made from the merchants, each merchant routinely generated a business record of the purchase and transmitted the record to the appropriate credit card company, which relied upon the transmitted record to routinely generate as its own business record the credit card statement sent to the purchaser for payment. The foundational testimony given by the credit card company representatives showed that they had sufficient knowledge of the manner in which the merchants and the credit card companies routinely generated these business records and functioned in this context as related businesses. We find no error in the trial court’s conclusion that the credit card purchases transmitted by the merchants to the credit card companies were also business records of the credit card companies that were admissible under OCGA § 24-3-14 based on the foundational testimony given by the company representatives. Jackson v. State, 209 Ga. App. 217, 218-219 (433 SE2d 655) (1993); Moore v. State, 154 Ga. App. 535, 538-540 (268 SE2d 706) (1980).

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

       Moreover, Warren gave testimony admitting that the credit card statements showing her purchases from the various merchants accurately reflected her personal credit card records.


source: Caselaw Access Project

author: Adams, Judge.

license: Public Domain

text:
    A11A0180.
    BAGHOSE v. STATE.
    (711 SE2d 110)
   Adams, Judge.

Charlotte J. Baghose, a former corporate accounting manager convicted of theft and forgery, disputes the trial court’s admission of certain evidence at her restitution hearing and the calculation of her employer’s damages.

The State accepts the statement of facts recited in Baghose’s brief. Those facts and others gleaned from the trial transcript show that ZF Industries employed Baghose for 20 years. Her duties included issuing employee expense checks. In 2007, two internal audits spearheaded by ZF President Elizabeth Umberson revealed numerous fraudulent checks. First, ZF internal auditors conducted an audit on August 13-15, 2007 that attributed losses of approximately $587,000 to Baghose; she was terminated on August 31, as a result. Next, two auditors from the German parent corporation and one from the first audit conducted an audit in September that traced to Baghose hundreds of fraudulent checks totaling over $650,000.

In 2008, Baghose was indicted — on Count 1 — of felony theft by taking in that “between August 12, 2002 and July 11, 2007, [she] did unlawfully take monetary funds, the property of ZF Industries, with a value of more than $500.00. . . .” She was also indicted on 29 counts of forgery in the first degree (Counts 2 through 30) for each of 29 transactions involving fraudulent checks spanning the same time period as Count 1. At trial, in addition to witness testimony, the State introduced many of the fraudulent checks. Baghose was convicted on Count 1 and all counts of forgery except Counts 8, 9,12, and 13.

Following the conviction, the court held a sentencing and restitution hearing during which evidence of ZF’s losses was presented, albeit in a different form from the trial. The court determined that the forgery counts did not merge with the theft count and that each count would be sentenced separately. On Count 1, the court sentenced Baghose to ten years, nine to serve, with $100,000 restitution. On Counts 2 through 7, the court imposed ten years, nine to serve, concurrent with Count 1, but no separate restitution, “the restitution being encompassed in its entirety in the $100,000 figure under Count One.” On Counts 10, 11, and 14 through 30, the court sentenced Baghose to ten years probation consecutive to Counts 1 through 7, with restitution under Count 1 as a special condition of probation. On appeal, Baghose contends the trial court erred in determining the amount of ZF’s loss by accepting hearsay evidence as to the total amount and by failing to deduct from that total the amount for the counts for which she was acquitted.

1. Umberson, the only witness for the State at the sentencing hearing, testified that the second audit cataloged every fraudulent check and that ZF had total damages of $653,735.63, the total shown on that list. The court admitted the list into evidence as the only exhibit, over Baghose’s objection that the list was not introduced at trial and that the auditors who prepared it did not testify. On appeal, Baghose contends the check list was inadmissible hearsay, citing Williams v. State, 247 Ga. App. 783 (545 SE2d 343) (2001).

Regardless of any possible error admitting the auditors’ check list, Umberton was authorized to testify as to the toted amount of damages based on the foundation she laid for her testimony.

Opinion evidence as to the value of an item has probative value and may be admitted if a foundation is laid showing that the witness has some knowledge, experience or familiarity with the value of the property or similar property and if the witness gives reasons for the value assessed and has had an opportunity, for forming a correct opinion.

Wilkerson v. State, 246 Ga. App. 621, 622 (1) (540 SE2d 303) (2000). See also Barnes v. State, 239 Ga. App. 495, 498 (1) (521 SE2d 425) (1999) (“It is not objectionable that [an] opinion as to value might, in some cases, be based on hearsay.”).

At the sentencing hearing, Umberson testified that she instigated the two audits; that she was present for each of the two audits “during the entire time”; that the auditors determined that Baghose generated fraudulent, unauthorized checks and cashed them; that she obtained copies of the checks from the bank; that she obtained affidavits from every person listed as a payee on the checks showing that they did not receive the money; that the auditors determined the exact amount of the fraudulent checks; that she herself confirmed the amount of each check; that the auditors prepared the list of fraudulent checks based on the same information; and that she reviewed the checks with the auditors and determined that the exact amount of fraudulent checks was $653,735.63.

Because Umberson laid a foundation for her opinion regarding the damages suffered by ZF, her testimony as to that value was properly allowed. The introduction of the auditors’ check list, even if error, is merely cumulative of that opinion. The case of Williams v. State, 247 Ga. App. 783, is therefore not controlling.

2. Baghose also contends the court’s finding of fact that ZF had suffered $653,735.63 in damages was erroneous given that the jury acquitted her on four specific counts of forgery. The four checks corresponding to the four counts on which the jury acquitted Baghose add up to $6,464.59, and they were included in the auditors’ list of fraudulent transactions totaling $653,735.63. In its order, the court found as a matter of fact that ZF suffered the full amount of damages shown on the check list; the court also found that Baghose had a limited ability to pay, and it therefore ordered her to pay $100,000 restitution. At any rate, Baghose argues that the court’s factual finding on the total damages is inconsistent with the jury’s verdict because it includes the amounts for which she was acquitted.

Decided May 17, 2011.

Kristin I. Jordan, for appellant.

Lee Darragh, District Attorney, Juliet Aldridge, Assistant District Attorney, for appellee.

But Baghose was charged with different crimes arising out of the same conduct. On Count 1, she was charged with theft by taking, which is defined as when a person “unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” OCGA § 16-8-2. Baghose was acquitted on four counts of forgery, which is defined as when a person “with intent to defraud. . . knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority. . . .” OCGA § 16-9-1 (a). Thus, the two crimes have different elements of proof, and therefore, acquittal on the four counts of forgery does not affect or undermine Baghose’s conviction of theft by taking. The trial court was authorized to determine the amount of restitution on Count 1 independent of the other counts.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.


author: Ellington, Chief Judge.

text:
    A11A0181.
    BASS v. THE STATE.
    (710 SE2d 818)
   Ellington, Chief Judge.

A Crisp County jury found Gary Bass guilty beyond a reasonable doubt of possession of marijuana with intent to distribute, OCGA § 16-13-30 (j) (1), and possession of marijuana with intent to distribute within 1,000 feet of a housing project, OCGA § 16-13-32.5 (b). He appeals pro se from the denial of his motion for new trial, contending that the evidence was insufficient to support his convictions, that the prosecutor knowingly presented perjured testimony, and that he received ineffective assistance of trial counsel. He also claims that the trial court abused its discretion in denying his request for a continuance of the hearing on his motion for new trial. For the following reasons, we affirm.

1. In support of his claim that the evidence was insufficient to support his convictions, Bass asserts that the evidence against him was uncorroborated and contradicted by the testimony of defense witnesses. Specifically, Bass complains that none of the State’s witnesses corroborated the testimony of the officer who arrested him and who subsequently discovered four packages of marijuana and a money bag inside his truck. He also claims that the officer’s testimony regarding where the officer apprehended him was contradicted by the testimony of his defense witnesses. Regardless whether Bass’ contentions are true, however, they do not demonstrate that the evidence was insufficient to support his convictions.

(a) When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, “the relevant question is 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.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). It is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. Id. In fact, “[a] jury is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it.” (Citation and punctuation omitted.) Bray v. State, 294 Ga. App. 562, 563 (1) (669 SE2d 509) (2008).

In this case, a Crisp County deputy sheriff testified that, on October 29, 2008, he was on patrol in Cordele, looking for individuals with outstanding arrest warrants, when he saw Bass driving a red Dodge pickup truck. The officer had known Bass for approximately 15 years and thought that there were outstanding warrants for his arrest. The officer confirmed that there were outstanding warrants for Bass, but, because he did not want to stop Bass without the assistance of other officers, he attempted to follow Bass’ truck while notifying officers in the area by radio to be on the lookout for a red Dodge pickup truck driven by Bass.

A second Crisp County deputy sheriff testified that, while on patrol in an unmarked vehicle that day, he heard the radio transmission about Bass and his truck. The officer knew Bass and was aware that there were outstanding warrants for his arrest. Shortly thereafter, the officer saw a red pickup truck parked in an alley, and he saw Bass standing on the porch of a nearby house and holding a white plastic bag. The officer watched as Bass got back into his truck and drove away. After notifying other officers that he had found Bass, the officer followed Bass’ truck. A few minutes later, Bass parked his truck in the driveway of a house and, as he started to get out, the officer approached the driver’s side of the truck. According to the officer, he immediately smelled a strong odor of raw marijuana coming from inside the truck. The officer walked Bass to the back of the truck, handcuffed him, and placed him under arrest. After searching Bass incident to the arrest, the arresting officer decided to search Bass’ truck due to the odor of marijuana. On the front passenger’s seat of the truck, in plain view, the officer observed the white plastic bag he had seen Bass carrying to the truck earlier. Inside the bag were four plastic bags of marijuana, weighing a total of 92.3 grams or about one ounce per bag, and a money bag containing approximately $2,300.

In the meantime, while the second officer was in the process of arresting Bass, the officer who had initially seen Bass driving through Cordele and who had issued the radio alert arrived at the scene of Bass’ arrest. The officer witnessed the search of Bass’ truck by the arresting officer.

Defense counsel thoroughly cross-examined both officers about their observations that morning and the specific routes each took while pursuing Bass, from the time Bass was first observed through the time of Bass’ arrest, using maps and pictures to test the accuracy of the officers’ memories and to address any inconsistencies in their testimony.

After the State rested, defense counsel called three witnesses to testify on Bass’ behalf. Tonya Collier, Bass’ sister-in-law, testified that she — not Bass — was the person driving Bass’ truck while the officer was following it, just before the truck stopped and parked in the driveway of a house. According to Collier, she did not know where Bass was when she parked his truck, but, after she went into the house, she saw the officer apprehend Bass on the side of the house, not as Bass exited the truck, as the officer had testified. Collier testified that the officer walked Bass to the back of the truck and handcuffed him, then demanded that she give him the keys to the truck, which she did. Collier claimed that she never saw a white plastic bag on the seat of Bass’ truck.

In addition to that evidence, two other defense witnesses testified that they were in the immediate area of Bass’ arrest and saw what happened from the time Bass’ truck was parked in the driveway until Bass was arrested; their versions of the events were basically consistent with Collier’s. During cross-examination of the latter two defense witnesses, the State elicited testimony that Bass had approached both witnesses after his arrest and had asked them to write out statements for him about what they saw happen just before he was arrested.

Then, after the defense rested, the State called a rebuttal witness, who testified that Bass had given him a printed statement and asked him to copy the statement in his own handwriting and to sign it. According to the statement, the rebuttal witness had seen Collier driving a red pickup truck on the morning of, and in the same area of, Bass’ arrest, and Collier had waved to him. The rebuttal witness admitted, however, that, contrary to his written statement, he did not actually see who was driving the red truck. Moreover, the witness admitted that he was not sure the truck he saw even belonged to Bass. The witness explained that Bass had specifically told him to write that he had seen Collier driving Bass’ truck that morning and that he did so, even though it was not true, because he was trying to help Bass, who was his friend.

Ultimately, given the jury’s finding that Bass was guilty beyond a reasonable doubt of the offenses for which he was charged, it appears that the jury- accepted “that version of the events most unfavorable to [Bass] . . . after hearing all of the evidence and resolving the credibility of all of the witnesses.” (Citation and punctuation omitted.) Burgess v. State, 276 Ga. 185, 187 (3) (576 SE2d 863) (2003). See Lawson v. State, 155 Ga. App. 704 (272 SE2d 567) (1980) (Although the testimony of the defendant and two other defense witnesses contradicted the State’s witnesses’ testimony regarding the defendant’s involvement in a drug sale, the jury chose to believe the State’s witnesses, and their testimony was sufficient to support his conviction.). Because the jury was solely authorized to make such determinations, there was no error.

(b) Moreover, even if the officer’s testimony was not corroborated by other evidence, “[t]he testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. See Hammontree v. State, 283 Ga. App. 736, 737 (1) (642 SE2d 412) (2007) (The child molestation victim’s testimony alone sufficed to establish the elements of the crime charged.).

(c) Bass also complains that the State failed to present sufficient evidence to prove that the substance found inside the white plastic bag was, in fact, marijuana, because the State failed to present expert testimony on the issue. The trial transcript, however, shows that, at the time of Bass’ arrest, the officer who discovered the substance was certified to recognize the odor of marijuana and to identify and test marijuana. According to the officer, the day after Bass’ arrest, he weighed the substance, examined it under a microscope, and performed two chemical tests on the substance; each time the substance tested positive for marijuana. Further, the officer was subject to cross-examination by defense counsel. Therefore, even though the officer had not been qualified as an expert at trial, his testimony was admissible to prove that the substance was marijuana. It was then for the jury to decide the weight and credibility they should give to his testimony. See Madge v. State, 245 Ga. App. 848, 852 (3) (b) (538 SE2d 907) (2000) (Since questions of weight and credibility of witness testimony are for the jury, it would have been improper to instruct the jury that they should afford less credibility to the testimony of the State’s witness, who testified that a certain substance was marijuana, simply because the witness was not qualified as an expert.).

Accordingly, Bass’ insufficient evidence claims are not supported by the record or applicable authority. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001). We conclude that the evidence presented, as recounted above, was sufficient for a rational factfinder to find Bass guilty beyond a reasonable doubt of the offenses for which he was charged. Jackson v. Virginia, 443 U. S. at 319 (III) (B).

2. Bass contends that the trial court erred in rejecting his claim that his constitutional rights were violated at trial, based upon his assertions that the two Crisp County sheriff deputies gave “substantially misleading” and “perjurious” testimony “at the behest of the prosecution.” Beyond claiming that the officers lied about the circumstances leading to his arrest and the search of his truck, however, Bass has failed to cite to any affirmative evidence that shows the officers perjured themselves while testifying. Further, as shown above, the trial transcript shows that Bass’ trial counsel thoroughly cross-examined both officers about their actions and observations prior to and during the arrest and the search.

Under these circumstances, Bass has failed to show that the officers perjured themselves, that the State knowingly used their perjured testimony, or that the presentation of perjured testimony led to his wrongful conviction and the violation of his constitutional rights. Hampton v. State, 279 Ga. 625, 628 (8) (619 SE2d 616) (2005); Burgess v. State, 276 Ga. at 187 (3); Stevenson v. State, 272 Ga. App. 335, 342 (3) (f) (612 SE2d 521) (2005).

3. Bass complains that the trial court erred in ruling against him on his claim of ineffective assistance of trial counsel. Bass raised this claim in an amended motion for new trial that he presented at the beginning of the motion hearing. The transcript of the hearing shows that he did not subpoena his trial counsel to appear and testify at the hearing, nor did he testify at the hearing, call any other witnesses or submit any evidence in support of his motion.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). See Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). When the defendant does not call his trial counsel to testify at the hearing on the motion for new trial in order to explain why he or she acted, or failed to act, during trial, it is extremely difficult to overcome this presumption. Jones v. State, 279 Ga. 854, 855 (2) (622 SE2d 1) (2005); see also Morgan v. State, 275 Ga. 222, 227 (10) (564 SE2d 192) (2002).

“As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Citation and punctuation omitted.) Grier v. State, 273 Ga. 363, 365 (4) (541 SE2d 369) (2001). “The decisions on which witnesses to call and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client.” (Citation and punctuation omitted.) Moreland v. State, 263 Ga. App. 585, 588 (4) (588 SE2d 785) (2003). Ultimately, “fdjeciding what evidence to present or to forego in defending a client charged with a crime is a matter of strategy and tactics.” (Citation omitted.) Nichols v. State, 281 Ga. 483, 485 (2) (a) (640 SE2d 40) (2007). “Whether an attorney’s trial tactics [were] reasonable is a question of law, not fact.” (Citation and punctuation omitted.) Moreland v. State, 263 Ga. App. at 588 (4). When assessing the reasonableness of counsel’s actions, courts must evaluate counsel’s performance from his or her perspective at the time of trial. Grier v. State, 273 Ga. at 365 (4). Finally, when this Court reviews a trial court’s ruling on an ineffective assistance claim on appeal, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Robinson v. State, 277 Ga. at 76.

(a) Bass contends that his counsel’s performance was deficient because he failed to file a motion to suppress evidence, specifically, the four bags of suspected marijuana that he claims were illegally seized from his truck. The mere failure to file a suppression motion, however, does not necessarily constitute ineffective assistance of counsel. Mayes v. State, 229 Ga. App. 372, 373 (1) (494 SE2d 34) (1997). To prevail on this claim, the defendant must make a strong showing that, if his lawyer had filed a motion to suppress, the trial court would have granted it. Id.

Bass’ argument that the evidence should have been suppressed (and would have been suppressed had counsel filed a motion) is premised solely upon his contention that the two Crisp County sheriff deputies lied at trial about their observations and the events leading to the seizure of the marijuana. Because we have found, in Division 2, supra, that Bass has failed to show that the officers lied under oath during his trial, Bass is unable to show that, if defense counsel had filed a motion to suppress on this basis, the trial court would have granted it. Mayes v. State, 229 Ga. App. at 373 (1). Therefore, he cannot prevail on this ineffective assistance claim.

(b) Bass claims that his counsel was ineffective for failing to move for a mistrial when one of the officers perjured himself by testifying that he smelled the odor of raw marijuana coming from Bass’ truck when he approached the vehicle. Pursuant to our decision in Division 2, supra, this ineffectiveness claim lacks merit. See Stevenson v. State, 272 Ga. App. at 342 (3) (f) (The defendant could not prevail on his claim that his trial counsel was ineffective in failing to object when, according to him, the prosecution knowingly presented peijured testimony and tampered with the jury, because the defendant presented absolutely no evidence to support the allegations of prosecutorial misconduct.).

(c) Bass argues that his counsel was ineffective when he failed to employ, or request funds from the court to employ, an expert witness to challenge the officer’s testimony that he smelled the odor of raw marijuana emanating from Bass’ truck. As noted above, however, the decisions of which witnesses to call and what evidence to present to the jury are matters of trial strategy and tactics. Nichols v. State, 281 Ga. at 485 (2) (a); Moreland v. State, 263 Ga. App. at 588 (4). Because Bass did not call his trial counsel to testify at the hearing on the motion for new trial so that counsel could explain why he did not attempt to employ an expert to challenge the officer’s testimony, Bass is unable to overcome the presumption that counsel made a strategic decision regarding this issue that fell within the broad range of reasonable professional conduct. Jones v. State, 279 Ga. at 855 (2).

(d) Bass claims that his counsel was ineffective because he did not object when the State improperly led its witnesses during direct examination. This claim must fail for the same reason given in Division 3 (c), supra.

(e) Bass claims that his counsel was ineffective because he did not sufficiently cross-examine the officers in order to show the jury that the officers were lying under oath. This claim lacks merit for the same reasons given in Divisions 2 and 3 (b), supra.

Decided May 17, 2011.

Gary B. Bass, pro se.

Denise D. Fachini, District Attorney, Henry O. Jones III, Assistant District Attorney, for appellee.

(f) Bass claims that his counsel was ineffective because he allegedly did not conduct any pre-trial investigation of the case or prepare a defense. To the extent that this claim is premised upon counsel’s alleged failure to show the jury that the officers were lying under oath, this claim lacks merit for the same reasons as in Divisions 2 and 3 (b), supra. To the extent that Bass contends that counsel did not conduct any investigation prior to trial, did not adequately research the law, and did not present evidence in his defense, these contentions are contradicted by the trial transcript and the rest of the record in this case. There is no merit to this claim.

(g) Bass also contends that his counsel was ineffective for failing to object to the admission of evidence of two of his prior convictions. Bass has not supported this claim with either legal authority or argument, as required by Court of Appeals Rule 25 (c) (2). Therefore, this ineffective assistance claim is deemed abandoned.

4. Bass contends that the trial court erred in denying his second request for a continuance, which would have allowed him the opportunity to obtain missing portions of his trial transcript in order to support his motion for new trial. Bass has abandoned this alleged error, however, by failing to support it with either legal authority or argument, as required by Court of Appeals Rule 25 (c) (2).

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

       The record shows that the trial court granted Bass’ first request for a continuance, rescheduling the hearing from June 8, 2010, to July 13, 2010. On July 2, 2010, Bass filed a second request for a continuance, asserting that he needed additional time to subpoena witnesses and to prepare for the hearing. The second request does not mention a need to obtain missing portions of the trial transcript.


author: PHIPPS, Presiding Judge.

text:
    A11A0221.
    MIKELL v. THE STATE.
    (710 SE2d 824)
   PHIPPS, Presiding Judge.

On January 22, 2004, Kenneth Mikell, Sr., was convicted of one count of enticing a child for indecent purposes and three counts of child molestation, and he was sentenced as a recidivist under OCGA § 17-10-7 (c). On May 29, 2009, he filed a motion to correct what he claimed was a void sentence. The court denied the motion, and Mikell appeals pro se.

A sentence is void if the court imposes punishment the law does not allow. The court sentenced Mikell to 20 years imprisonment for enticing a child for indecent purposes, which is within the statutory range for that offense. The court also sentenced Mikell to life imprisonment for each of the child molestation convictions (to run concurrently with each other and with the sentence for enticement), and ruled that he be subject to recidivist punishment under OCGA § 17-10-7 (c). Pursuant to that Code section, a

person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

Moreover, a person may be sentenced to life imprisonment upon a second or subsequent conviction for child molestation, provided that the state gives notice of its intent to seek a life sentence.

The state presented evidence that Mikell had several prior felony convictions in South Carolina, including a conviction for a violation of S. C. Code Ann. § 16-15-140, which prohibits a person over the age of 14 from wilfully and lewdly committing or attempting to commit a lewd or lascivious act upon or with the body of a child under the age of 16, with the intent of arousing, appealing, or gratifying the lust, passions, or sexual desires of the person or of the child. Prior to trial, the state filed notice that it would seek a sentence of life imprisonment based upon Mikell’s conviction for violating S. C. Code Ann. § 16-15-140.

Mikell asserts that his sentence for the child molestation convictions was void because the law did not allow the court to impose recidivist punishment upon him, in that the court improperly based the sentence upon prior convictions obtained through guilty pleas. He contends he did not voluntarily enter any of the pleas and that he was not represented by counsel as to some of the pleas. “In recidivist sentencing, the [sjtate bears the burden of showing both the existence of the prior guilty pleas and that the defendant was represented by counsel when he entered the pleas.” Once the state meets this burden, “a ‘presumption of regularity’ attaches to the plea proceedings and the burden shifts to the defendant to show any alleged irregularities.”

Regarding at least three of Mikell’s prior convictions (including the conviction for violating S. C. Code Ann. § 16-15-140), the state introduced certified copies of the convictions which reflected that Mikell had pled guilty thereto and had been represented by counsel. At that point, the burden shifted to Mikell to prove that the pleas were not voluntary. Mikell, however, did not present any evidence on this point. Although he cites Postell v. State for the proposition that the state, rather than he, was required to show that the pleas were voluntary, our decision in Postell was based on the Supreme Court of Georgia’s opinion in Pope v. State. The Court subsequently overruled Pope on the issue of the allocation of burdens of proof regarding the voluntariness of pleas in non-death penalty cases.

Because Mikell did not demonstrate that the three requisite guilty pleas were involuntary, the trial court was entitled to rely on the convictions resulting from those pleas to sentence him as a recidivist. Accordingly, the law allowed the sentence that Mikell received, and the court did not err in denying his motion to correct a void sentence.

Decided May 17, 2011

Kenneth W Mikell, Sr., pro se.

Larry Chisolm, District Attorney, Emily C. Thomas, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       See Rooney v. State, 287 Ga. 1, 2 (2) (690 SE2d 804) (2010).

       See OCGA § 16-6-5 (b).

       See OCGA § 16-6-4 (b) (1).

       See generally State v. Hardee, 308 SE2d 521, 524 (S. C. 1983) (S. C. Code Ann. § 16-15-140 describes offense of child molestation).

       See generally Williams v. State, 287 Ga. 192, 193 (695 SE2d 244) (2010) (including among examples of challenges to void sentences a challenge to recidivist treatment).

        Beck v. State, 283 Ga. 352, 353 (2) (658 SE2d 577) (2008), citing Nash v. State, 271 Ga. 281, 285 (519 SE2d 893) (1999).

        Beck, supra at 354 (2), citing Nash, supra.

       The state also introduced evidence of other convictions to which Mikell had pled, but after defense counsel objected on the ground that it was not clear that Mikell had been represented by counsel when he entered those pleas, the court declined to admit this evidence.

        Beck, supra.

       233 Ga. App. 800 (505 SE2d 782) (1998).

       256 Ga. 195, 209-210 (17) (345 SE2d 831) (1986); see Postell, supra at 802 (3).

       See Nash, supra at 283-284.

        Beck, supra; see Rucker v. State, 304 Ga. App. 184, 188 (2) (b) (ii) (695 SE2d 711) (2010) (absent an affirmative showing that the defendant’s plea was not voluntary, a trial court is entitled to rely on the presumption of regularity with regard to the plea process).

       See Thompson v. State, 294 Ga. App. 768, 770 (1) (670 SE2d 226) (2008) (where law allowed use of prior conviction to impose recidivist punishment, trial court did not err in denying motion to vacate void sentence on this ground).


text:
    A11A0596.
    CHANDLER v. THE STATE.
    (710 SE2d 826)
   Ellington, Chief Judge.

A Barrow County jury found Robert Chandler guilty of child molestation, OCGA § 16-6-4 (a), and cruelty to children, OCGA § 16-5-70 (b). Chandler appeals from the order denying his motion for a new trial, contending that the prosecutor’s misconduct, certain trial court errors, and his attorney’s ineffectiveness demand that his convictions be reversed. Finding no reversible error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that, on May 18, 2002, Chandler molested his 12-year-old grandnephew, D. J. That morning, D. J. was helping his mother clean house. Shortly after D. J.’s mother left the house to get more cleaning supplies from a neighbor, Chandler stopped by to pick up a change of clothes. He was intoxicated. He asked D. J. questions about his sexual orientation and attempted to get D. J. to sit down with him. When D. J. walked away, Chandler grabbed him, pulled D. J.’s pants down, and tried to force his penis into D. J.’s anus. D. J. testified that Chandler’s actions caused him emotional and physical pain. D. J. struggled free, grabbed a phone and a kitchen knife, and locked himself in the bathroom. There, he called his mother, told her what happened, and asked her to come home. When his mother got home, she found D. J. locked in the bathroom and saw a partially clothed Chandler walking through the house. The mother pushed Chandler outside, and D. J. opened the bathroom door. He was crying and upset, clutching the phone and the kitchen knife.

D. J.’s mother called the police. A responding officer found D. J. “curling up” against his mother, crying and scared. When numerous family members started arriving at the residence, an investigator took D. J. to the police station to be interviewed away from all the people who had gathered. D. J. told the police investigator and, later, a social worker what had happened, and those witnesses recounted their interviews with D. J. for the jury. A doctor examined D. J. and recovered seminal fluid from his anal area. The seminal fluid was not tested for DNA, however, because it did not contain the requisite sperm cells. When investigators sought a DNA sample from Chandler, he told hospital personnel “over and over again” that he had slept with a woman the night before the incident and that D. J. had worn his undershorts that day. He also said: “I would not do anything like this to that baby. But things happen, right?” Both D. J. and his mother testified that D. J. had not worn Chandler’s clothing.

1. Chandler contends he is entitled to a new trial on the grounds of prosecutorial misconduct because the prosecutor withheld a statement from D. J.’s mother that D. J. had recanted his accusations against Chandler and had admitted that he had fabricated the story. The record, however, does not support Chandler’s claim that the prosecutor’s actions constituted “misconduct.” “A charge of pros-ecutorial misconduct is-a serious charge and is not to be lightly made; having raised it, appellant has the duty to prove it by the record and by legal authority.” Meredith v. State, 211 Ga. App. 213, 215 (4) (438 SE2d 644) (1993).

Chandler’s defense at trial was that D. J. was lying. His attorney, in his opening statement, said that D. J. had lied about the molestation to get out of trouble for stealing a pair of sunglasses earlier that day. Counsel said: “[Yjou’re going to hear evidence from [D. J.’s] mother and his other relatives that this probably didn’t happen. And the child probably made it up. . . . [After all the investigation, D. J.] tells his family it never happened. I made it up.” Likewise, the prosecutor said in his opening statement: “I last discussed this case with [D. J.] four months ago. I expect that this is going to be a difficult trial for [him]. Often times in these cases, families are split; some times pressure is applied. And there is a possibility that [D. J.’s mother] ... no longer has this child’s best interest at heart.” Thus, before any evidence was submitted, the record reveals that both the defense and the prosecution expected testimony on the issue of whether D. J. had lied about the molestation.

When D. J.’s mother testified on behalf of the defense, she said that, on the morning of the trial and on other occasions, D. J. had told her that nothing sexual had occurred between Chandler and him. She testified that she reported these statements to the district attorney’s office and the prosecutor. The mother, however, had previously testified in the State’s case-in-chief that, although she had discussed her testimony with the prosecutor, she did not tell him what she was going to say. The mother also admitted to having refused to turn over evidence in the case because D. J.’s grandmother, Chandler’s sister, would not allow her to do so. In fact, the family was very upset that D. J.’s mother was testifying against Chandler, and the mother testified that the ordeal had been harder on her than on D. J. Chandler’s sister, D. J.’s grandmother, also testified that D. J. had told her that he lied about the molestation.

Chandler’s attorney made a motion for a mistrial following D. J.’s mother’s defense testimony, arguing that the mother had told the prosecutor that D. J. had recanted and that the prosecutor had intentionally withheld that information, prejudicing his defense. The prosecutor denied that the mother had ever told him that D. J. had lied; rather, he asserted that she was lying. The court ruled: “I think we’re going to have to let the jury resolve [this issue].”

There is no evidence in the record that D. J.’s mother gave the police or the prosecution a written or recorded statement that D. J. had told her that he had lied about the molestation. If she had given an unrecorded oral statement to that effect to the prosecutor, the prosecutor was not obligated under OCGA § 17-16-7 to disclose it to the defense. See Burgess v. State, 276 Ga. 185, 186 (2) (576 SE2d 863) (2003). As for whether the prosecutor wrongfully withheld the information from the defense under Brady, the law “requires the prosecutor to disclose all evidence favorable to the defendant that is material to the defendant’s guilt or punishment.” (Footnote omitted.) Henley v. State, 285 Ga. 500, 506 (4) (678 SE2d 884) (2009). In order to prevail on a Brady claim, however, a defendant must show:

(1) the State possessed evidence favorable to the defendant; (2) the defendant did not possess the favorable evidence and could not obtain it himself with any reasonable diligence; (3) the State suppressed the favorable evidence; and (4) had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the trial would have been different.

(Citations omitted.) Schofield v. Palmer, 279 Ga. 848, 852 (2) (621 SE2d 726) (2005).

In this case, it is patent from his opening statement that Chandler intended to offer evidence in his defense that D. J. had lied about the molestation and that some of that evidence would come from D. J.’s own mother. As promised, Chandler called D. J.’s mother and grandmother as defense witnesses, and they both testified that D. J. had told them that he had lied. Thus, even if we were to assume that Chandler has carried his burden of showing that the prosecutor suppressed an unrecorded oral statement from D. J.’s mother, the record shows that the defense had the information allegedly contained in the mother’s statement prior to trial from that very witness, and that the information was timely used at trial in support of Chandler’s defense. Consequently, there was no Brady violation. See Dodd v. State, 293 Ga. App. 816, 820 (2) (668 SE2d 311) (2008) {“Brady ... is not violated when the [exculpatory] evidence is presented to the jury at trial.”) (citations and punctuation omitted). Thus, Chandler has failed to show that the prosecutor violated the law, prejudiced Chandler’s defense, or committed any act that could be construed as misconduct. The court did not err in impliedly denying the motion for mistrial, and this claim of error must fail.

2. Chandler contends the trial court erred in allowing the alternate juror to be present during, but not participate in, jury deliberations.

OCGA § 15-12-171 provides: “Upon final submission of the case to the jury, the alternate jurors shall not retire with the jury of 12 for deliberation!.]”

If an alternate juror does, in fact, sit in on the jury’s deliberations over the defendant’s objections, there is a presumption of harm to the defendant that the State must overcome by presenting affirmative evidence that the alternate juror did not participate in deliberations and that the jury was not influenced by the alternate juror’s presence.

(Citations omitted.) London v. State, 260 Ga. App. 780, 781 (1) (580 SE2d 686) (2003). In cases like the instant one, however, where defense counsel agreed to the alternate juror’s presence during deliberations, any error is waived. Id. at 782 (1).

3. Chandler contends the trial court should have merged his convictions for child molestation and cruelty to children because each count is based upon the same act and facts and, therefore, the crimes are included in one another as a matter of fact.

In Drinkard v. Walker, 281 Ga. 211, 212-217 (636 SE2d 530) (2006), the Supreme Court of Georgia disapproved the “actual evidence” test and adopted the “required evidence” test for determining when one offense is included in another under OCGA § 16-1-6 (1) or § 16-1-7 (a) (1). Under the required evidence test, a single act may constitute an offense that violates more than one statute, “and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” (Citation, punctuation and footnote omitted.) Id. at 215.

Chandler was indicted for child molestation, and the indictment accused him of doing an “immoral and indecent act, to [D. J.], a child under 16 years of age, by placing his penis against the anal area of the child, with the intent to arouse and satisfy the sexual desires of the accused[.]” He was also indicted for cruelty to children, and the indictment accused him of “maliciously caus[ing D. J.], a child under the age of 18, cruel mental pain by touching his anal area[.]” Cruelty to children, but not child molestation, requires proof that the victim was a child under the age of 18 who was caused cruel or excessive physical or mental pain. OCGA § 16-5-70 (b). In contrast, child molestation, but not cruelty to children, requires proof that the victim was under 16 years of age and that the defendant performed an immoral or indecent act upon or in the presence of the child for the purpose of arousing or satisfying the defendant’s or the child’s sexual desires. OCGA § 16-6-4 (a). Therefore, each crime requires proof of at least one additional element that the other does not. See Waits v. State, 282 Ga. 1, 4-5 (2) (644 SE2d 127) (2007) (cruelty to children did not merge with aggravated battery). Accordingly, even if the same conduct establishes the commission of both child molestation and cruelty to children, the two crimes do not merge. See id.

4. Chandler contends he was deprived of a fair trial because his trial attorney was ineffective in three respects: (1) He failed to object to the trial court’s ruling regarding the prosecutor’s having allegedly withheld a witness statement, (2) he failed to object to the alternate juror’s presence during deliberations, and (3) he failed to object to the court’s failure to merge his convictions.

In order to establish ineffectiveness of trial counsel, appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, we give deference to the trial court’s factual findings, which are upheld on appeal unless clearly erroneous; however, we review the lower court’s legal conclusions de novo.

(Citations and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004). Further, when considering a claim of ineffectiveness, a critical distinction exists between inadequate preparation and unwise trial strategy. Hudson v. State, 250 Ga. 479, 486 (8) (299 SE2d 531) (1983). Especially in matters of trial tactics and strategic choices, an ineffectiveness claim cannot be judged by hindsight or result. Slade v. State, 270 Ga. 305, 307 (2) (509 SE2d 618) (1998).

Decided May 17, 2011.

William H. Kitchens, Jr., for appellant.

J. Bradley Smith, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

With respect to counsel’s failure to object to the trial court’s allegedly erroneous decisions regarding merger of offenses and prosecutorial misconduct, neither of these decisions was in error as we explained in Divisions 1 and 3, supra. Therefore, counsel did not perform deficiently by failing to make a meritless objection. See Hayes v. State, 262 Ga. 881, 884-885 (3) (c) (426 SE2d 886) (1993) (failure to make a meritless objection cannot be evidence of ineffective assistance).

With respect to the trial court’s decision to allow the alternate juror to be present in the jury room during deliberations, we have held that,

although [Chandler] would have been entitled to a presumption of harm if counsel had timely objected to the trial court’s plan, [he] is no longer entitled to this presumption of harm in a claim of ineffective assistance of counsel. Instead, he has the burden of proving that he was prejudiced by counsel’s alleged oversight. Morgan v. State, 275 Ga. [222, 227-228 (10) (564 SE2d 192) (2002)] (the defendant, not the State, “must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct”) (citation and punctuation omitted).

London v. State, 260 Ga. App. at 782-783 (2). As in London, Chandler has failed to present any evidence to show that there is a reasonable probability that the outcome of the trial would have been different but for the alternate juror’s presence. Accordingly, Chandler has not carried his burden of demonstrating ineffective assistance of counsel. Id. For these reasons, the trial court did not err in denying Chandler’s claim of ineffective assistance of counsel.

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

        Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).


text:
    A11A0693, A11A0932.
    In the Interest of N. W., a child (two cases).
    (710 SE2d 832)
   Adams, Judge.

In the three days immediately following a hearing on the permanency plan of a deprived child, the child advocate filed motions that contested the oral pronouncement of the juvenile court, even though the court had yet to issue a written order. The advocate also sought an emergency hearing on placement of the child. The juvenile court dismissed the three motions in part on the ground that they were premature. The child advocate appeals several aspects of these dismissals.

The record shows that N. W tested positive for cocaine at birth on Monday, August 10, 2009. That Friday, the child was placed in shelter care with a foster family. In the following days and weeks, the Fulton County Department of Family and Children Services (DFACS) filed a deprivation complaint, a deprivation petition, and an amended petition. In the amended petition, DFACS alleged, among other things, that the mother also tested positive for cocaine at the time of N. W.’s birth; that she used drugs, was without resources, and was unable to care for the child; that she had failed at drug treatment and failed to remain drug free; that the father failed to prevent the child from being exposed to drugs; that the paternal grandparents were unwilling to take N. W. because they already had custody of a sibling and the mother was verbally aggressive toward them; that no other relatives had come forward; and that the permanency plan was termination of parental rights followed by adoption. The juvenile court conducted a hearing on the deprivation petition, to which the parents had stipulated, and found the child to be deprived. The child remained with the foster family.

Despite DFACS’s plan for adoption, the child advocate filed a motion for nonreunification, to which the parents stipulated, and the court held a hearing. In an order dated October 30, 2009, the court determined that reunification was not appropriate, hut the court noted that the paternal grandparents had “changed their minds about having the child placed with them,” and they were “now being evaluated by the Department as a possible placement option for the child.” On February 15, 2010, a judicial citizen review panel conducted a hearing and recommended placement with a fit relative. On February 16, however, the child advocate objected to the panel’s plan and asked for another hearing.

A judge pro tempore of the juvenile court held a hearing on March 8, 2010, but no transcript is in the record. According to the briefs and colloquy at a later hearing, the judge pro tempore announced in open court that he would adopt the recommendation of the panel and order placement with a fit and willing relative. DFACS moved the child from the foster parents to the grandparents the next day. Nevertheless, the judge pro tempore did not issue a written order until March 25.

In the meantime, on March 9, 10 and 11, without waiting for a written order, the child advocate filed the following three motions:

1. “Motion for Emergency Reconsideration on Notice of Objection and Motion for Hearing on Citizens Panel’s Review Proposed Permanency Plan and DNA Test”;

2. “Motion for Emergency Transfer of Custody”; and

3. Motion for an “Emergency Review Hearing.”

In these motions, respectively, the child advocate contested the father’s paternity — suggesting that the paternal grandparents might not really occupy that status, and argued that, therefore, the foster parents should also be considered in the plan for the child; he argued that custody should be restored to the foster parents immediately because of the paternity issue; and he argued that DFACS failed to give five days notice of a change in placement of the child in accordance with OCGA § 15-11-55 (d). DFACS responded to each motion.

On March 18, assigned Judge Bradley Boyd held a hearing regarding the child advocate’s motions. On the same day, Judge Boyd dismissed Motion No. 1 (for reconsideration) and No. 3 (for an emergency hearing) as premature, given that no written order had been entered following the March 8 hearing. Judge Boyd also dismissed Motion No. 2 (for transfer of custody) because the motion failed to state a relevant reason for a change in custody or “for abandoning the planning, recommending, and review process set out in the Juvenile Court Code.” The order was filed on March 24. In a second order, filed March 25, the court reiterated that Motion No. 1 was premature and added that given the legal father was not contesting paternity, and that no other person was claiming paternity, it would not be in the best interest of the child “to order a test for the purpose of delegitimating the child.” It is these two orders issued by Judge Boyd that are now on appeal. These cases are consolidated for the purposes of appeal.

After the child advocate filed notices of appeal, the judge pro tempore finally filed a written order nunc pro tunc March 8, 2010, on the child advocate’s objection to the recommendation of the citizen review panel, in which the judge adopted the panel’s recommendation over the child advocate’s objection and ordered the child placed with a fit and willing relative. This order is not before us, nor is the effect of the order given that notices of appeal had been filed before the order was filed.

1. The child advocate contends the court erred by dismissing Motion No. 1 (for reconsideration) on the ground that it was premature. We disagree. Only one day after the March 8, 2010 hearing, the child advocate sought reconsideration of the juvenile court’s oral pronouncement at the hearing.

Entry of a judgment occurs when it is filed with the clerk “and, unless the court otherwise directs, no judgment shall be effective for any purpose until the entry of the same, as provided in this subsection.” OCGA § 9-11-58 (b). See also Titelman v. Stedman, 277 Ga. 460, 461 (591 SE2d 774) (2003); Shirley v. Abshire, 288 Ga. App. 819, 820 (655 SE2d 694) (2007). The child advocate has not shown that the juvenile court otherwise directed that its oral pronouncement was effective on that day. Thus, the motion to reconsider was premature.

As a consequence, in this appeal, the child advocate cannot complain about the issues addressed at the March 8 hearing. These include, at a minimum, the propriety of the permanency plan approved by the citizen review panel and placement of the child with a fit and willing relative. Other topics may have been addressed, but there is no transcript in the appellate record of the March 8 hearing.

2. The child advocate contends the court erred by dismissing Motion No. 3 (for emergency review) filed under OCGA § 15-11-55 (d). He contends he never received notice that the child was going to be moved from the foster parents to the grandparents on March 9, 2010, and that he properly requested a hearing to address the child’s permanency plan.

In this setting, DFACS is required to give the child advocate five days advance notice of any placement change:

Not less than five days in advance of any placement change, the division shall notify the court. . . and any attorney of record of such change in the location of the child’s placement while the child is in the division’s custody[.]

OCGA § 15-11-55 (d). Yet DFACS failed to provide actual notice as required by the statute. There is simply nothing in the record to show that DFACS gave specific notice that it intended to move the child on March 9. Nevertheless, even assuming that strict as opposed to substantial compliance with this notice provision was required, reversible error requires a showing of harm as well as error. In the Interest of D. W., 294 Ga. App. 89, 94 (3) (a) (668 SE2d 533) (2008). See also Kersey v. Williamson, 284 Ga. 660, 663 (3) (670 SE2d 405) (2008).

Decided May 17, 2011.

Nathan A. Hayes, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Elizabeth M. Williamson, Assistant Attorney General, Lytia G. Brown, Abdulhakim Saadiq, for appellee.

The notice specified under OCGA § 15-11-55 (d) provides the parties an opportunity to request a hearing so the court can consider a change in the child’s placement and the effect of the change on the case plan:

[A]ny attorney of record may request a hearing with regard to the child’s case plan or the permanency plan in order for the court to consider the change in the location of the child’s placement and any changes to the case plan or permanency plan resulting from the child’s change in placement location.

OCGA § 15-11-55 (d). But in this case, almost the same topics had just been considered at the March 8 hearing, which was held at the advocate’s request, only two days prior to his motion for another hearing. The hearing addressed, at a minimum, the propriety of the approved permanency plan and placement of the child with a fit and willing relative, which, as is undisputed, meant the paternal grandparents. As stated above, the decisions on those issues are not before us. Indeed, as admitted by the child advocate at oral argument, at this point in time, he is not contesting placement with the paternal grandparents. Rather, he asserts that if he had received the requested hearing, he would have sought to require that DFACS take steps to ease the child’s transition from the foster parents — the only parents the child had known for the first seven months of his life — to the paternal grandparents. This transition, however, is now 14 months in the past.

In sum, we conclude that the manner in which the child’s transition occurred is now moot. And the child advocate has not shown any other harm resulting from DFACS’s failure to provide notice that it was moving the child or by granting another hearing.

Judgment affirmed.

Barnes, E J., and Blackwell, J., concur.

       On March 26, the child advocate filed two notices of appeal in the juvenile court. In Case No. A11A0693, he appealed Judge Boyd’s order filed March 25, and in Case No. A11A0932, he appealed Judge Boyd’s order filed March 24.


author: Blackwell, Judge.

text:
    A11A0092.
    FORSHEE et al. v. EMPLOYERS MUTUAL CASUALTY COMPANY.
    (711 SE2d 28)
   Blackwell, Judge.

Johnny and Elizabeth Forshee own and operate a Chevron service station and convenience store in Dade County. In November 2007, a woman fell upon the premises of Forshee Chevron, and two years later, she filed a lawsuit against the Forshees for injuries that she sustained as a result of the fall. The Forshees tendered the defense of this lawsuit to their insurer, Employers Mutual Casualty Company, which provided a defense under a reservation of rights. The Forshees gave Employers Mutual no notice of the fall until after they were sued in November 2009.

While the personal injury lawsuit was pending, Employers Mutual brought this lawsuit for declaratory relief against the For-shees, alleging that they failed to timely notify Employers Mutual of the fall and that, for this reason, it owed them no defense or coverage in connection with the personal injury lawsuit. Following a bench trial, the trial court entered a declaratory judgment in favor of Employers Mutual, concluding that waiting two years to report the fall was unreasonable. The Forshees appeal from this declaratory judgment. Because it appears that the trial court did not apply the correct legal standard when it decided that the Forshees unreasonably failed to give timely notice, we vacate the judgment below and remand for further proceedings consistent with this opinion.

The material facts in this case appear to be mostly undisputed, but to the extent they are disputed, we view the evidence adduced at trial in the light most favorable to the judgment below. On November 23, 2007, a woman and her male companion drove to Forshee Chevron, parked away from the gas pumps, and walked from their car toward the entrance of the convenience store. Before reaching the entrance, the woman fell to the ground, landing on her front side. Neither the clerk at the convenience store nor Mr. Forshee, who was in the rear of the store, saw the woman fall.

Mr. Forshee, however, saw the woman on the ground, and he went outside and asked if she was hurt or needed medical assistance. Mr. Forshee helped the woman back to her feet, and she and her companion began to walk back to their car. Mr. Forshee testified that, as he walked with the couple toward their car, either the woman or her companion mentioned something about a drink, so he returned to the convenience store and got a fountain drink for the woman. By the time Mr. Forshee returned to the parking lot with the drink, the woman was seated in a car, and she refused his offer to call for medical assistance, telling him instead that she intended to go home. At some point, the woman may have mentioned to Mr. Forshee that her arm hurt. The couple then left the premises, never having entered the convenience store.

Neither Mr. Forshee nor the clerk had ever seen the woman or her companion before the day of the fall. They did not know the name of the woman or her companion, and they did not have any information — such as a license plate number — that might have allowed them to identify the couple. The Forshees did not see, speak with, or hear anything about the woman or her companion for nearly two years after the fall.

Then, in November 2009, the woman filed a lawsuit for injuries that she sustained as a result of her fall — only days before the statute of limitation expired — and the Forshees were served with the complaint and summons. Attached to the complaint were copies of medical records showing that, on the day she fell at Forshee Chevron, the woman was treated for a broken arm at a hospital in Alabama. The Forshees immediately sent a copy of the complaint to their insurance agent, who forwarded it to Employers Mutual. It is undisputed that, before they sent a copy of the complaint to Employers Mutual through their agent, the Forshees had given Employers Mutual no notice of the fall.

The Forshees asked Employers Mutual to defend against the personal injury lawsuit pursuant to the terms of a commercial general liability policy, which covers certain claims against the Forshees arising between July 6, 2007 and July 6, 2008. This policy insures the Forshees against liability for claims of bodily injury or property damage resulting from an “occurrence,” which the policy defines broadly as “an accident.” The policy requires the insured to promptly notify Employers Mutual of an occurrence that may give rise to a covered claim:

2. Duties In The Event of Occurrence, Offense, Claim Or Suit
a. You must see to it that we are notified as soon as practicable of an “occurrence” or an offense that may result in a claim. To the extent possible, notice should include:
(1) How, when and where the “occurrence” or offense took place;
(2) The names and addresses of any injured persons or witnesses; and
(3) The nature and location of any injury or damage arising out of the “occurrence” or offense.

The issue in this case is whether the Forshees gave timely notice to Employers Mutual of the occurrence on which the personal injury lawsuit is based, the woman falling on the premises of Forshee Chevron in November 2007.

The trial court held that giving no notice of the fall until two years after it occurred and only after the Forshees were sued was unreasonable and, accordingly, entered a declaratory judgment that Employers Mutual owes the Forshees no defense or coverage in connection with the personal injury lawsuit. In its order, the trial court acknowledged that the Forshees did not know the identity of the woman who fell until after she filed a lawsuit and had no means of ascertaining her identity. But the trial court focused on the severity of the injury that the woman sustained and concluded that an incident resulting in such a severe injury requires a prompt report to the insurer: “[T]he woman who fell, and who is the plaintiff in the underlying lawsuit, broke her arm and was admitted to the hospital on the date she fell. The incident was sufficiently significant so that [the Forshees] should have reported whatever they could have reported to EMC.” There is no indication in the order, however, that the trial court considered what the Forshees knew, or reasonably should have known, about the existence or severity of the injury that the woman sustained before they were served with her lawsuit in November 2009. The Forshees now appeal from the declaratory judgment entered below.

It is settled under Georgia law that, when an insurance policy includes a notice requirement as a condition precedent to coverage, and when the insured unreasonably fails to timely comply with the notice requirement, the insurer is not obligated to provide a defense or coverage. See Federated Mut. Ins. Co. v. Ownbey Enterprises, 278 Ga. App. 1, 3 (627 SE2d 917) (2006). But an insured is not “required to foresee every possible claim, no matter how remote,” that might arise from an event and give notice of it to his insurer. Instead, the law only requires an insured “to act reasonably under the circumstances.” Guaranty Nat. Ins. Co. v. Brock, 222 Ga. App. 294, 295 (1) (474 SE2d 46) (1996). See also Plantation Pipeline Co. v. Royal Indem. Co., 245 Ga. App. 23, 26 (1) (537 SE2d 165) (2000); Newberry v. Cotton States Mut. Ins. Co., 242 Ga. App. 784, 785 (2) (531 SE2d 362) (2000). So, if a reasonable and ordinarily prudent person would conclude that an event forms no basis for a possible claim, the failure of the insured to give notice of the event is justified and no bar to coverage. Brock, 222 Ga. App. at 295 (1). See also State Farm Fire &c. Co. v. Walnut Avenue Partners, 296 Ga. App. 648, 651 (2) (675 SE2d 534) (2009). Sometimes an event is so trivial or inconsequential that a court properly may conclude as a matter of law that no reasonable person would think that a claim could arise from the event and, therefore, that no notice of the event is required. See Southern Guaranty Ins. Co. v. Miller, 183 Ga. App. 261, 263 (358 SE2d 611) (1987). In most cases, however, the reasonableness of a failure to give notice is a question for the finder of fact. Plantation Pipeline, 245 Ga. App. at 25 (1).

As we have explained before, “it is the nature and circumstances of ‘the accident’ or ‘the incident’ and the immediate conclusions an ordinarily prudent and reasonable person would draw therefrom that determine whether an insured has reasonably justified his decision not to notify the insurer.” Miller, 183 Ga. App. at 263. Relevant circumstances include the nature of the event, the extent to which it would appear to a reasonable person in the circumstances of the insured that injuries or property damage resulted from the event, and the apparent severity of any such injuries or damage. See, e.g., Walnut Avenue Partners, 296 Ga. App. at 653 (2); Brock, 222 Ga. App. at 295 (1); Miller, 183 Ga. App. at 263; Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga. App. 215, 221 (2) (231 SE2d 245) (1976). A court also properly may consider whether anyone gave an indication that he intended to hold the insured responsible for the event and resulting injuries and the extent to which the insured acknowledged the likelihood that a claim could arise from the event, either by offering compensation to the injured person or asking him to sign a release. See, e.g., Walnut Avenue Partners, 296 Ga. App. at 652 (2); Plantation Pipeline Co., 245 Ga. App. at 26 (1); Richmond, 140 Ga. App. at 221 (2). And a trial court must make every effort to eliminate the distorting effects of hindsight and to evaluate the conduct of the insured from the perspective of a reasonable person in the same circumstances as those in which the insured found himself.

In this case, the trial court focused primarily upon the severity of the injury — how severe it turned out to be, not how severe the Forshees knew or should have known it to be — when it determined that the failure to give notice to Employers Mutual for approximately two years and until a lawsuit was filed was unreasonable. To support this determination, the trial court cited cases in which this Court — and in one case, a federal district court — held that delays ranging from eight to twenty-four months were unreasonable as a matter of law. In each of these cases, however, it appears that the existence of a serious injury or loss was actually known to — or, at least, reasonably should have been apparent to — the insured, such that a reasonable person in the position of the insured would have concluded that the event causing the injury could form the basis for a claim, long before notice was given to the insurer. See Kay-Lex Co. v. Essex Ins. Co., 286 Ga. App. 484, 487 (1) (a) (649 SE2d 602) (2007) (where insured waited 12 months to give notice of incident in which employee was killed on its premises, owner admitted that he knew on date of event that employee had been injured and taken to hospital); Allstate Ins. Co. v. Walker, 254 Ga. App. 315, 316 (1) (562 SE2d 267) (2002) (insured notified insurer of loss of vehicle ten months after filing stolen vehicle report with law enforcement agency); Snow v. Atlanta Intl. Ins. Co., 182 Ga. App. 1 (354 SE2d 644) (1987) (insured driver notified insurer of automobile accident in which another driver was killed approximately ten months after accident occurred and six months after wrongful-death action was commenced against the insured); Richmond, 140 Ga. App. at 221 (2) (where insured notified insurer of collision between vehicle and pedestrian more than eight months after collision occurred, insured “was aware of the collision and the injuries sustained” and “paid a number of the injured party’s medical bills”); Alea London Ltd. v. Cook, No. 4:06-CV-0238-HLM, 2007 WL 5376619 (N.D. Ga. Sept. 19, 2007) (insured waited two years to notify insurer, notwithstanding awareness of serious head injuries resulting from accident). Moreover, it appears that the trial courts in these cases did not assess the conduct of the insured through the lens of hindsight, but instead applied the correct legal standard and assessed it from the perspective of a reasonable person in the position in which the insured found himself at the time of, and following, the incident.

In this case, we think that the trial court failed to eliminate the distorting effects of hindsight when it based its reasonableness determination on how severe the injury turned out to be, rather than how severe it would have appeared to a reasonable person in the position of the Forshees. The evidence shows that the relevant occurrence was a fall in a parking lot. The victim refused all offers of medical assistance, walked on her own back to her car, and told Mr. Forshee that she was going home. She did not indicate that she believed Forshee Chevron was responsible for her fall, and she did not ask Mr. Forshee for his insurance information or even for his name. Although the woman may have told Mr. Forshee that her arm hurt, there is no evidence that any serious injuries were visible or that the woman later informed the Forshees of the seriousness of her injury and that it required medical treatment, and the Forshees had no way of identifying the woman or contacting her. It does not appear that the trial court adequately considered these circumstances in determining whether the Forshees acted reasonably in failing to provide Employers Mutual with notice of the fall at the time it occurred.

Decided April 28, 2011

Reconsideration denied May 18, 2011

John R. Emmett, for appellants.

Brock, Clay, Calhoun & Rogers, Charles M. Dalziel, Jr., for appellee.

The reasonableness of the failure of the Forshees to give notice sooner to Employers Mutual must be assessed from the perspective of a reasonable person in the circumstances in which the Forshees found themselves, not that of an omniscient being having the benefit of full and accurate information that emerged only later and the benefit of hindsight. About whether the Forshees acted unreasonably, we decide nothing, and nothing in our opinion should be understood to suggest that the evidence in this case compels any particular answer to that question. The reasonableness of their conduct is something for the trial court, not this Court, to assess and determine in the first instance, applying the appropriate legal standard. But because it appears that the trial court applied the wrong legal standard when it viewed the evidence through the distorting lens of hindsight, we must vacate the judgment below and remand for further proceedings consistent with this opinion.

Judgment vacated and case remanded.

Barnes, R J., and Adams, J., concur.

       On an appeal from a bench trial, we review the factual findings of the trial court for clear error, we review its conclusions of law de novo, Gooch v. Tudor, 296 Ga. App. 414, 414 (674 SE2d 331) (2009), and we view the evidence in the light most favorable to the judgment below. Realty Lenders, Inc. v. Levine, 286 Ga. App. 326, 326-327 (649 SE2d 333) (2007).

       Both this Court and our Supreme Court have warned before about the distorting effects of hindsight in other contexts in which an objective standard of reasonableness applies. We think these warnings are equally applicable here. Cf. Johnson v. State, 268 Ga. 416, 419 (4) (490 SE2d 91) (1997) (when assessing reasonableness of lawyer’s conduct for purposes of an ineffective assistance of counsel claim, court must “eliminate the distorting effects of hindsight and . . . evaluate the conduct from counsel’s perspective at the time”) (citation and punctuation omitted); Lawrence v. State, 298 Ga. App. 94, 97-98 (679 SE2d 94) (2009) (when assessing reasonableness of police conduct in the context of the Fourth Amendment, court “must measure those actions from the foresight of an officer acting in a quickly developing situation and not from the hindsight of which judges have benefit”) (citation and punctuation omitted); Savannah Bank & Trust Co. v. Weiner, 193 Ga. App. 616, 617 (1) (388 SE2d 725) (1989) (in negligence case, whether a person has acted reasonably depends upon his knowledge at the time of the injury and cannot be based upon “hindsight which reveals a mistake”) (citation and punctuation omitted).


author: BARNES, Presiding Judge.

text:
    A11A0473.
    WYCKOFF v. THE STATE.
    (710 SE2d 835)
   BARNES, Presiding Judge.

Donald Keith Wyckoff appeals the trial court’s denial of his motion to withdraw his guilty plea, arguing that his counsel was ineffective and that withdrawal was necessary to correct a manifest injustice. For the reasons that follow, we affirm.

Wyckoff was arrested on October 2, 2009 for aggravated child molestation, child molestation, aggravated sexual battery, and enticing a child for indecent purposes, and the trial court appointed him counsel on October 5, 2009. After a hearing on November 23, 2009, the trial court denied his motion for bond. He was indicted November 20, 2009 on charges of aggravated child molestation, child molestation, and enticing a child for indecent purposes. On February 22, 2010, the trial court conducted a plea hearing during which the State agreed to nolle pros the aggravated child molestation and Wyckoff pled guilty to child molestation and enticing a child for indecent purposes. On March 1, 2010, within the same term of court, Wyckoff moved to withdraw his guilty plea. At the end of a hearing on April 19, 2010, the trial court denied the motion, and Wyckoff filed a notice of appeal.

Wyckoff asserts that the trial court erred in denying his motion to withdraw his guilty plea because his counsel was ineffective because she spent little time with him, failed to inquire about his mental well-being, and was unavailable to discuss his case during the plea hearing, at which he was confused due to sleep deprivation. He further contends he only found out after he entered his plea that witnesses would have come to court for him. The court should have granted his motion to correct a manifest injustice, he asserts, the injustice being that he “was placed into circumstances where he had to make this last-minute drastic decision [to enter a plea] because of unprepared counsel who had not spoken with witnesses nor communicated with him while he remained in custody for four months awaiting trial.”

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

(Citations and punctuation omitted.) Trauth v. State, 283 Ga. 141, 142 (2) (657 SE2d 225) (2008). In reviewing claims of ineffective assistance of counsel, we accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous. Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

While Wyckoff argues his public defender only met with him briefly twice, the record shows that his attorney submitted a bond petition, which her co-counsel argued at a hearing, and submitted and responded to discovery requests. His lawyer’s investigator testified at the motion to withdraw hearing that she met Wyckoff at the jail several times, discussed potential witnesses, attempted to obtain witness contact information, reviewed Wyckoff s statements to the police with him, and went over the plea negotiations and forms. While the public defender who represented Wyckoff at the plea hearing had not met him before, she testified that she clarified his only question regarding the plea offer, which related to the no-contact provision of the special conditions of probation. After she explained that, while Wyckoff could not contact the victim, when she turned 18 the victim could petition the court for permission to contact Wyckoff. After that explanation, the attorney testified, Wyckoff was ready to proceed with the plea.

The State made a factual proffer at Wyckoff s plea hearing that in July 2009, the 14-year-old victim came for the summer to stay with her aunt, who worked with Wyckoff at his father’s restaurant. Wyckoff asked the victim to be his “secret girlfriend,” and when he obtained permission to take her to a park, he instead took her to his residence and had sexual intercourse with her. Wyckoff testified that he understood he was waiving his right to a jury trial at which the State would have to prove his guilt beyond a reasonable doubt, that he could be sentenced to a maximum of seventy years in confinement for the two charges, and that his lawyer and the State had negotiated a lesser sentence which the trial court was not bound to accept. He answered affirmatively when the court asked him if he had read the indictment and understood what he was accused of doing in the two counts to which he agreed to plead guilty. He also said yes when the court asked him if he had met with his attorneys, discussed his case, asked questions about his rights, the law, and possible sentences, had enough time to obtain answers, and was satisfied with his representation.

After the court reviewed the waiver form on the record, it ascertained that Wyckoff was acting of his own free will, had not been threatened or promised anything, knew he had a right to subpoena witnesses and to a jury trial, was not under the influence of drugs, medicine, or alcohol, had no questions about his case, and was, in fact, guilty of the charges. Based on his answers, the State’s proffer, and the contents of the waiver and plea form, the court accepted Wyckoff s guilty plea. The court then read aloud the recommended sentence and the special conditions of probation, and Wyckoff admitted that it was the sentence he and his lawyers had negotiated. The court then pronounced the sentence: twenty years to serve eight in confinement on each count, to run concurrent.

Decided May 18, 2011.

Bryan H. Frost, for appellant.

Layla H. Zon, District Attorney, Stephanie R. Myers, Assistant District Attorney, for appellee.

A week later on March 1, 2010, Wyckoff filed a motion to withdraw his plea, contending that he had not made it freely, voluntarily, and intelligently. The next day, the trial court appointed a new lawyer to represent him on this issue, and held a hearing on April 19, 2010. Wyckoff testified at this hearing that he only pled guilty because his lawyers told him he had no one on his side, that they would not call any witnesses, and that if he did not plead guilty the State would bring additional charges against him and he would never get out of jail. He said he felt threatened and scared with no choice but to plead guilty, although he admitted knowing he would be sentenced to less than the maximum time if he pled guilty. He “kind of” remembered meeting with the investigator before he pled guilty but she “was just throwing papers in front” of him and he did not know what he was signing because he had not slept for 24 hours. He said he did not remember any of the judge’s questions during the plea hearing,

In its written order denying Wyckoff s motion to withdraw his guilty plea, the trial court found that Wyckoff s testimony was not credible and that the record did not substantiate his claims of memory loss. At the motion hearing, the trial court noted that, contrary to Wyckoff s testimony that he was incapable of functioning and remembered nothing, he had been able to respond individually to the court’s questions during the plea hearing and had written detailed letters explaining his objections to the proceedings. Reviewing the record as a whole, these factual findings and credibility determinations are not clearly erroneous.

Accordingly, we find no abuse of discretion in the trial court’s denial of Wyckoff s motion to withdraw his guilty plea.

Judgment affirmed.

Adams and Blackwell, JJ., concur.


text:
    A11A0003.
    SPENCER v. THE STATE.
    (710 SE2d 837)
   BARNES, Presiding Judge.

In the middle of his trial on numerous felonies in 1999, Anthony Bernard Spencer entered into negotiated pleas of guilty and was sentenced to a total of 40 years to serve. In March 2010, he filed motions to withdraw his plea and for an out-of-time appeal. The trial court denied the motion for an out-of-time appeal because Spencer had not demonstrated he was entitled to a direct appeal from his guilty pleas. The court also dismissed Spencer’s motion to withdraw the plea because it was not filed during the term of court in which the judgment on the convictions was entered. Spencer appeals, and for the reasons that follow, we affirm.

1. Spencer contends that the trial court should have held a hearing on his motion for an out-of-time appeal, and that his right to an appeal was frustrated by his trial counsel’s ineffective assistance. The trial court was not required to hold an evidentiary hearing, however, because Spencer was not entitled to a direct appeal from his guilty pleas based on the existing record, as discussed infra. Upperman v. State, 288 Ga. 447, 448 (2) (705 SE2d 152) (2011).

Since [Spencer] had no right to file even a timely notice of appeal from the judgment of conviction entered on this guilty plea, he was not entitled to be informed of a nonexistent “right” to appeal. It follows that the trial court correctly denied [Spencer’s] motion to file an out-of-time appeal in this case. [Spencer’s] only available remedy is habeas corpus.

Morrow v. State, 266 Ga. 3, 4 (463 SE2d 472) (1995).

2. While Spencer argues the merits of his motion to withdraw his plea, he had no right to a direct appeal from his guilty plea. As a rule, “[a] defendant. . . has an absolute right to withdraw his plea before sentence is pronounced.” Kaiser v. State, 285 Ga. App. 63, 65 (1) (646 SE2d 84) (2007). See OCGA § 17-7-93 (b). “But, the trial court loses jurisdiction if the motion to withdraw the plea is not made within the term in which the plea is entered and the defendant sentenced.” McKiernan v. State, 286 Ga. 756, 757 (692 SE2d 340) (2010). An exception exists if a defendant challenges a void sentence, because if the sentence is void, the defendant stands in the position of having pled guilty but not sentenced. Kaiser, 285 Ga. App. at 65-66 (1). In that case, the defendant may withdraw his guilty plea as of right, even following the expiration of the term of court in which the void sentence was pronounced. If Spencer’s sentence was void, therefore, his motion was timely, and he had a right to withdraw his guilty plea.

Decided May 19, 2011.

Anthony B. Spencer, pro se.

Tracy Graham-Lawson, District Attorney, Billy J. Dixon, Anece Baxter White, Assistant District Attorneys, for appellee.

A sentence is void if the court imposes punishment that the law does not allow. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). If the sentence falls within the statutory range of punishment allowed, it is not void. Id. Upon Spencer’s entry of guilty pleas to multiple offenses, including three counts of kidnapping, the trial court accepted the State’s recommendation and sentenced him to 20 years for each kidnapping count, to be served concurrently with his 20-year sentences for armed robbery. In 2000, the offense of kidnapping when the victim was 14 or older carried a maximum sentence of 20 years. See OCGA § 16-5-40 (b) (1) (2007). As Spencer’s sentence fell within the statutory range, it was not void, and therefore the trial court properly dismissed the motion to withdraw the plea because it had no jurisdiction to consider it. Chester v. State, 284 Ga. 162 (1) (664 SE2d 220) (2008), overruled in part on other grounds, Williams v. State, 287 Ga. 192, 193 (695 SE2d 244) (2010); Jones v. State, 307 Ga. App. 714, 715 (706 SE2d 105) (2011). Spencer’s only recourse regarding the merits of his kidnapping conviction is through habeas proceedings. Richardson v. State, 306 Ga. App. 269 (1) (701 SE2d 908) (2010).

Spencer’s argument on appeal that his aggravated assault convictions should have been merged into his armed robbery convictions is a challenge to his conviction, not the sentence; thus, the failure to merge would not render the sentence void. See Williams v. State, supra, 287 Ga. at 192.

Judgment affirmed.

Adams and Blackwell, JJ., concur.