author: Ray, Judge.

text:
    A14A0431.
    SHERMAN v. THOMAS-LANE AMERICAN LEGION POST 597.
    (768 SE2d 797)
   Ray, Judge.

Hiawatha Sherman appeals the trial court’s grant of summary judgment to the Thomas-Lane American Legion Post 597 (“Post 597”) on the issue of whether Post 597 had acquired prescriptive title to Sherman’s land by possession for more than 20 years under OCGA § 44-5-163. Sherman argues that, because material questions of fact remain, the trial court’s decision was in error. For the reasons that follow, we reverse the trial court’s order of summary judgment.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. The movant has the original burden of making this showing. Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence. In rebutting this prima facie case, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in OCGA § 9-11-56, must set forth specific facts showing that there is a genuine issue for trial. A defendant may meet its burden on a motion for summary judgment by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. Our review is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Revocable Trust of Timothy W. Griffin v. Timberlands Holding Co. Atlantic, Inc., 328 Ga. App. 33, 33 (761 SE2d 458) (2014).

On April 24, 1976, Post 597 purchased a plot of land known as Lot 3 in the Norris Gunby Subdivision in Lincolnton, Georgia. The property was not surveyed at the time of purchase. Lot 3 adjoins land Sherman has owned since June 9, 2011, which is known as Lot l. Lot 1 lies to the west of Lot 3. Post 597 alleges that for approximately 35 years, it believed that the western boundary of its property was a chain-link fence approximately 50 feet behind a concrete building that faces Augusta Highway, and that it has exclusively and continuously occupied and maintained the disputed area up to the fence line during that time.

Between 1985 and 1994, Post 597 placed or constructed various structures on the now-disputed parcel. Post 597 built a steel-framed building, which still stands, on the site in 1994. In 2009, because the fence had fallen into disrepair, Post 597 removed it. In 2011, after Sherman purchased the property and had it surveyed, she claimed, inter alia, that the steel-framed building encroached on her land and that Post 597 was trespassing.

On October 5, 2012, Post 597 sought a declaratory judgment stating that it had acquired a prescriptive right of title to approximately 0.25 acres of land, and later moved for summary judgment. After a hearing, which was not transcribed, the trial court granted Post 597’s motion for summary judgment and issued a declaratory judgment that it was the lawful owner of the property in question. Sherman appealed.

1. Sherman argues that the trial court erred in finding that she failed to file a response to Post 597’s motion for summary judgment until the day of the hearing and, as a result, in finding that Sherman had waived her right to present evidence in opposition to the motion. We find no error.

The hearing on the motion for summary judgment was held on July 30, 2013. The record shows that on July 29, 2013, Sherman filed a document entitled “Response to Material Facts Concerning which Defendant Contends there is a Genuine Issue to be Tried.” The next day, half an hour before the hearing was to begin, Sherman filed two affidavits in opposition to Post 597’s motion for summary judgment.

Sherman is correct in arguing that her response was filed the day before the hearing, not the day of the hearing. However, both her response and affidavits were served and filed more than 30 days after June 7,2013, which was the date of the filing and service of the motion for summary judgment.

A party opposing a summary judgment motion need not respond and may instead rely on the movant’s failure to remove any fact questions. Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783, 784-785 (2) (195 SE2d 277) (1972). However, if the nonmovant chooses to respond, unless otherwise ordered by the trial court, any response must be served and filed not later than 30 days after service of the motion. Henderson v. Caughran, 182 Ga. App. 657 (356 SE2d 721) (1987); Uniform Superior Court Rule 6.2. Further, OCGA § 9-11-56 (c) provides that “[t]he adverse party prior to the day of hearing may serve opposing affidavits.” (Emphasis supplied.) See also Brown v. Williams, 259 Ga. 6, 7 (4) (375 SE2d 835) (1989).

Sherman’s response and affidavits were filed out of time. Thus, the trial court’s determination that Sherman “waived her right to present evidence in opposition to the motion” was not an abuse of discretion as to the affidavits and was right for any reason as to the response. City of Gainesville v. Dodd, 275 Ga. 834, 835 (573 SE2d 369) (2002).

Even so, there is no such thing as a default summary judgment. Hughes v. Montgomery Contracting Co., Inc., 189 Ga. App. 814, 815 (377 SE2d 723) (1989). It is clear that the trial court did not render such. By failing to respond timely, as the trial court found, Sherman merely waived her right to present evidence in opposition to the motion. “It does not automatically follow that the motion should be granted. A motion for summary judgment should not be granted unless it affirmatively appears from the pleadings and evidence that the party so moving is entitled to prevail.” (Citation and punctuation omitted.) Id.

2. Sherman next argues that the trial court erred in finding that Post 597 had possessed the land adversely to the extent required to ripen into prescriptive title, contending that because Post 597 exercised only “[c]asual possession” or permissive possession of the land at issue, this was insufficient to give her “actual notice” of adverse possession. Sherman presents no argument or citations to the record on the issue of “casual” or permissive possession, nor were those particular grounds for lack of notice raised by the parties below or ruled upon by the trial court. Accordingly, this argument is waived on appeal. Crippen v. Outback Steakhouse Intl., L.P., 321 Ga. App. 167, 170 (1) (741 SE2d 280) (2013).

As for the issue of notice generally, actual notice to a rightful owner is not required absent claims based on possession by permission. Proctor v. Heirs of Jernigan, 273 Ga. 29, 29 (1) (538 SE2d 36) (2000). See also OCGA § 44-5-161 (b). Rather, a “claimant’s public, continuous, and exclusive possession of the property provides the required notice.” Proctor, supra at 29 (1).

Post 597 provided evidence of public, continuous, and exclusive possession of the property through affidavits from prior owners and users of the disputed property. These affidavits testified to the placement and erection of buildings, maintenance, and use of the land during the relevant time period. OCGA § 44-5-165. Walker v. Sapelo Island Heritage Auth., 285 Ga. 194, 197-198 (2) (674 SE2d 925) (2009); Hughes v. Heard, 215 Ga. 156, 160 (3) (109 SE2d 510) (1959); Tolnas v. Pope, 212 Ga. 50, 52 (90 SE2d 420) (1955) (erection of buildings indicates actual possession). Sherman provided no contrary evidence below. We find no error.

3. On appeal, Sherman argues that although the affidavits Post 597 presented state that the former fence line was approximately 50 feet behind a concrete building on her land, a survey proffered by Post 597 instead “claims 64.91 feet of property[.]” Sherman further contends that the trial court erred because “no evidence submitted by affidavit or otherwise defined the exact location of the former fence line; only the property desired by Post 597 to be awarded to it.”

A careful reading of Post 597’s pleadings and evidence shows that Post 597 is merely using the 50-foot description to locate the fence line in relation to the back wall of the concrete building; it never claimed prescriptive title to merely the land running from the back wall of the building to the boundary between Lots 1 and 3. Rather, Post 597 consistently claimed prescriptive title to approximately 0.25 of an acre measured from the original, legal dividing line between Lots 1 and 3 to the new boundary and amounting to, according to one measurement noted on the survey, 64.91 feet.

However, Sherman is correct in pointing out that no evidence in the record indicates that the claimed boundary line on the survey is the same as the former fence line, and it is not possible to discern from the survey the distance between the back wall of the building as depicted and the claimed boundary line.

The burden to show that no genuine issue of fact exists rests squarely upon the party moving for summary judgment. See Nichols v. Frey, 185 Ga. App. 829, 831 (366 SE2d 212) (1988) (if moving party fails to produce evidence of the “necessary certitude,” his motion for summary judgment will be denied). “[Wjhere the moving party has presented evidence of the necessary certitude, [the adverse party] must, in his opposing affidavits, set forth specific facts showing a genuine issue to be decided.” (Citations and punctuation omitted.) Bogart v. Wisconsin Institute for Torah Study, 321 Ga. App. 492, 495 (3) (739 SE2d 465) (2013). See also OCGA § 9-11-56 (e).

Sherman presented no evidence to the trial court showing that Post 597’s claimed boundary differed from the fence line. However, on summary judgment, we view the facts in the light most favorable to Sherman as the nonmoving party. Revocable Trust of Timothy W. Griffin, supra. Post 597 has not met its burden of producing evidence of the “necessary certitude” to show that no genuine issue of fact remains because the record is devoid of any evidence equating the former fence line with the claimed boundary. Nichols, supra. The grant of summary judgment is reversed.

Judgment reversed.

Andrews, P. J., and McFadden, J., concur.

Decided February 9, 2015.

John R. B. Long, for appellant.

John W. Dunsmore, Jr., for appellee.

       Sherman’s land was previously owned by Katie Gunby, who inherited the property from her husband, the subdivision’s developer, in 1977. Gunby sold the land to Free Indeed Holiness Church in 1986, which sold the land to Sherman, as noted above.

       Although the trial court later references what it defines as one of the “belated affidavit[s,]” given the trial court’s determination that Sherman had waived her right to present evidence, we can only assume that the trial court did not consider the “belated affidavit” in rendering its decision.


source: Caselaw Access Project

author: ELLINGTON, Presiding Judge.

license: Public Domain

text:
    A14A1523.
    LEMERY v. THE STATE.
    (768 SE2d 800)
   ELLINGTON, Presiding Judge.

A Douglas County jury found Steven Lemery guilty of six counts of trafficking young males for sexual servitude, OCGA § 16-5-46 (c); one count of pandering by compulsion, OCGA § 16-6-14; three counts of aggravated child molestation, OCGA § 16-6-4 (c); and one count of enticing a child for indecent purposes, OCGA § 16-6-5 (a). Lemery contends that the evidence was insufficient to support his convictions for trafficking an adult victim. He also argues that his trial attorney was ineffective and that the trial court erred in failing to order, sua sponte, a competency hearing and in denying appellate counsel’s post-conviction request for funds for an independent forensic psychiatric evaluation. Finding no reversible error, we affirm.

1. Lemery contends that the evidence was insufficient to support his convictions for trafficking one of his three victims, R. M. He argues that he did not subject R. M., his adult boyfriend, to sexual servitude; rather, he contends that the evidence shows that R. M. willingly prostituted himself in order to “maintain” him, and that Lemery “was the ‘kept’ one in the relationship.”

Under Georgia law, a person commits the offense of human trafficking for sexual servitude when he or she “knowingly subjects another person to or maintains another person in sexual servitude or knowingly recruits, entices, harbors, transports, provides, or obtains by any means another person for the purpose of sexual servitude.” OCGA § 16-5-46 (c). Sexual servitude is defined, in relevant part, as

(A) Any sexually explicit conduct or performance involving sexually explicit conduct[] for which anything of value is directly or indirectly given, promised to, or received by any person, which conduct is induced or obtained by coercion or deception . . . ; or
(B) Any sexually explicit conduct or performance involving sexually explicit conduct which is performed or provided by any person, which conduct is induced or obtained by coercion or deception [.]

OCGA § 16-5-46 (a) (6). The law specifically provides that the “age of consent for sexual activity... of the person being trafficked shall not constitute a defense in a prosecution for a violation of this Code section.” OCGA § 16-5-46 (d).

In determining whether R. M. was subjected to sexual servitude, the jury was authorized to consider whether R. M. was deceived or coerced into participating in sexually explicit conduct. OCGA § 16-5-46 (a) (6). “Deception” includes “[c]reating or confirming another’s impression of an existing fact or past event which is false and which the accused knows or believes to be false[.]” OCGA § 16-5-46 (a) (2) (A). “Coercion” in this context is not limited to actual or threatened physical or legal restraint that overmasters the will of the victim. Rather, OCGA § 16-5-46 (a) (1) defines “coercion” broadly to include a wide range of nonphysical harms, including those that are psychological, reputational, and financial:

“Coercion” means:
(A) Causing or threatening to cause bodily harm to any person, physically restraining or confining any person, or threatening to physically restrain or confine any person;
(B) Exposing or threatening to expose any fact or information or disseminating or threatening to disseminate any fact or information that would tend to subject a person to criminal or immigration proceedings, hatred, contempt, or ridicule;
(C) Destroying, concealing, removing, confiscating, or possessing any actual or purported passport or other immigration document, or any other actual or purported government identification document, of any person;
(D) Providing a controlled substance, as such term is defined by Code Section 16-13-21, to such person for the purpose of compelling such person to engage in labor or sexual servitude against his or her will; or
(E) Causing or threatening to cause financial harm to any person or using financial control over any person.

OCGA § 16-5-46 (a) (1).

The indictment in this case concerned Lemery’s conduct toward three young victims, all of whom lived with Lemery. Viewed in the light most favorable to the jury’s verdict, the record shows that, during the periods alleged in the indictment, Lemery invited three young males to live with him, one of whom was R. M. Two were minors; R. M. had just turned 18. All three were from broken families, and they had little education and no financial resources. Two were from towns outside of Georgia; R. M. was from South Carolina. Lemery befriended them through text messages or through social media, he misrepresented his age, he invited them to his Douglas County home, and then he traveled to pick them up when they accepted. He provided them with food, gifts, and shelter, and he plied them all with drugs and alcohol. He made promises of love and affection to R. M. and another victim. Lemery engaged his victims in various sexual acts. Through emotional and financial manipulation, Lemery persuaded R. M. and another victim to engage in acts of prostitution and to give him their earnings. In addition to the testimony of each of the victims, the State introduced evidence of texts, e-mails, and photographs retrieved from Lemery’s computer as well as telephone records, Internet service provider records, social media records, and records of Internet classified advertisements for sexual services — all of which corroborated the victims’ testimony.

With respect to R. M., the State presented the following. Witnesses described R. M. as petite, demure, soft-spoken, immature, and fearful. He had a troubled home life. When Lemery found R. M. through social media, R. M. had just been kicked out of his grandmother’s house, he had few friends, and he had nowhere to stay. He had no car, no driver’s license, no money, and he had dropped out of high school. R. M. perceived Lemery as his only option, so he left South Carolina when Lemery came to pick him up. R. M. testified that he was only supposed to stay a week, but that he and Lemery began dating, that their relationship became sexual, and that he moved into the master bedroom with Lemery.

While living with Lemery, R. M. abandoned his name and assumed the identity “Ryan Breezy.” Lemery told R. M that he loved him, and R. M. testified that he believed he was in love with Lemery. R. M. assumed that they were in a monogamous sexual relationship and were a happy couple. R. M. was completely dependent on Lemery for food and shelter. Lemery took R. M. shopping and to clubs and restaurants. Lemery also gave R. M. alcohol and drugs, and R. M. testified that, while he was staying with Lemery, he felt “hypnotized, brainwashed.” Lemery had frequent parties, and a witness testified that Lemery had cocaine, marijuana, and methamphetamine in the house and that he “bought [alcohol] by the armfuls and just passed it out to whoever was there.”

A few months into their relationship, Lemery grew bored with R. M. and persuaded him to have an “open relationship” and to engage in “threesomes” with strangers. R. M. was reluctant and very upset, but he felt that he had to please Lemery because he had no money and nowhere else to go and because Lemery would not take him home. As his relationship with Lemery deteriorated, Lemery became more controlling. Lemery would not let R. M. have friends or leave the house without him. R. M. testified that “[he] felt like [he] had to be on something at all times” or he “would go crazy.” He begged Lemery for more drugs, and Lemery provided them.

A few months into the relationship, Lemery told R. M. that he needed to “pull his weight” financially, and he pressured R. M. to prostitute himself to earn money if he expected to stay with him. Lemery also lied to R. M., telling him that he needed money for bail and that as soon as he resolved his legal troubles, R. M. could quit prostituting himself. R. M. did not want to participate, but he was afraid that if he failed to do as Lemery asked, Lemery would go to jail and that he would lose his home. Lemery posted sexual solicitation ads on the Internet for R. M., he drove R. M. to meet clients, he waited in the car while R. M. had sex with clients, and he took R. M.’s earnings when he returned to the car. R. M. tried to get out of prostituting himself by telling Lemery that one of the clients had raped him, but the ruse failed. R. M. testified that he felt trapped and was afraid to call his mother for help. He was embarrassed that she would find out about what he had been doing, and he had nowhere else to go.

The State offered into evidence the corroborating eyewitness testimony of other individuals who were living in Lemery’s home as tenants during the relevant period, including the testimony of Lem-ery’s drug-addicted wife, her live-in boyfriend, and S. P., a young man who, along with two of his roommates, worked from Lemery’s home as prostitutes. S. P. testified that he serviced 40 to 50 clients a week and that a portion of his earnings went to Lemery for rent. He said that Lemery knew what he and his roommates were doing, but that Lemery did not care. S. P. testified that Lemery, who was unemployed and living off of his military service benefits, got the idea from them to make money by prostituting himself and by pimping out his boyfriends through Internet classified ads.

S. P. also testified that he met R. M., and that he may have met other victims, but that “all of the names [of Lemery’s boyfriends] kind of blend together.” S. P. testified that R. M. was very upset by the change in his relationship with Lemery and that he wanted to leave, but that he felt trapped there by his circumstances, including the fact that he “had a drug habit to fund.” Over time, he eventually became resigned to his situation: “[AJfter awhile, you just get kind of used to it.” Shortly after Lemery’s criminal activities had been discovered by investigators, Lemery took R. M. and an underage victim to a shopping mall and abandoned them there.

Finally, the State presented the testimony of an expert witness who explained that those who traffic in sex slaves often choose their victims from society’s “throw-away kids” — children from broken homes, runaways, those who feel let down by society, outcasts, the emotionally traumatized, and those in financial distress. These young people often bond with their abusers, whom they perceive as loving protectors who accept them for who they are. The expert testified that a trafficker can control his victims through psychological and financial manipulation. With sex slaves, a trafficker often seduces his victims with promises of love, attention, gifts, and then uses alcohol and drug addiction to keep them compliant. He introduces them to various sex acts until they are “sexually broken down” to the point where they are prepared to prostitute themselves. By this point, the trafficker has little concern that his victims will leave because they are either completely enthralled or resigned to their situation. Although R. M. was legally an adult when he met Lemery, the expert testified that even adults are vulnerable to this kind of manipulation and control.

This record contained evidence from which the jury could infer that Lemery kept R. M. in a state of financial dependence, using the threat of homelessness to control him. The jury could infer that Lemery provided R. M. with drugs and alcohol and used R. M.’s addiction as a tool to keep him compliant. The jury could also infer that, when Lemery told R. M. he might go to jail unless R. M. prostituted himself to make the money that he needed to maintain their home, Lemery used deception to manipulate R. M. Given this evidence, the jury was authorized to infer that Lemery used coercion and deception, as defined in OCGA § 16-5-46 (a), in an effort to overmaster R. M.’s will and to compel him to engage in sexually explicit conduct, in violation of OCGA § 16-5-46 (c). Moreover, whether Lemery’s actions were sufficient to compel a reasonable person in R. M.’s position to perform or to continue performing the alleged acts of sexual servitude was a question of fact for the jury to consider under the totality of the circumstances. In this case, the evidence authorized the jury to find that R. M., though legally an adult, was uniquely vulnerable to Lemery’s coercive scheme to transform him from a boyfriend into a prostitute. As the State’s expert witness testified, R. M. was one of society’s “throw-away kids” — fearful and emotionally immature, alienated from society, and lacking in the power and resources needed to extricate himself from Lemery’s grasp. The evidence adduced supports Lemery’s trafficking convictions with respect to R. M. beyond a reasonable doubt.

2. As discussed more fully below, Lemery presents three claims of error pertaining to his mental competency. The facts relevant to these claims of error are as follows. On September 28, 2011, almost a year prior to trial, Lemery’s trial counsel filed a motion requesting an order for a psychological examination of her client, which the trial court granted the following day. Months later, the court also appointed Lemery a guardian ad litem to assist him with the “bureaucratic red tape” of obtaining his medical records from the Veterans Administration. On July 30, 2012, the trial court held a conference to address the status of the evaluation. The forensic psychologist had nearly completed Lemery’s evaluation; however, she was still waiting to receive all of Lemery’s medical records, including those from the United States Department of Veterans Affairs, before she issued her final report.

On August 16, 2012, after having finally reviewed all of Lemery’s medical records, the psychologist released her final evaluation in two reports. Although Lemery had a long history of mental health problems, the psychologist concluded that there was no evidence to support a finding of diminished criminal responsibility, that he was either overmastered by a delusional compulsion or that he did not know the difference between right and wrong at the time of the crimes. In a separate report, the psychologist concluded that Lemery understood the nature and object of the criminal proceedings against him and was able to assist counsel in the trial of the case; therefore, the psychologist opined that he was competent to stand trial.

During the year-long period in which Lemery’s psychological evaluation was pending, trial counsel did not file a written plea of mental incompetency to stand trial. However, on the morning of trial, four days after receiving the psychologist’s final report, she moved for a continuance. She argued the merits of her recently filed motion for funds to pursue an independent psychological evaluation of the defendant, and she asked for a competency hearing. The court denied counsel’s motions on the grounds that the case had been delayed for over a year, reset for trial five times between April and the end of August, and because Lemery’s trial counsel had had ample opportunity to evaluate Lemery’s mental health status and had chosen not to file a plea of mental incompetency to stand trial.

On August 24, 2012, the jury found Lemery guilty, and the trial court imposed sentence on September 5, 2012. About a year later, Lemery’s appellate counsel sought funds for a post-trial psychological evaluation to aid her in determining whether Lemery’s trial counsel had been deficient in waiting until the eve of trial to request an independent psychological evaluation. In denying appellate counsel’s motion, the trial court made factual findings supporting its conclusion that there was no objective basis for a second evaluation. For example, the court stated that, “[djuring the trial, the court saw no evidence that contradicted [the psychologist’s] opinion.” Further, the court saw no evidence during trial that Lemery was unable to participate in the proceedings or to communicate with his attorney. The court found that Lemery’s letters to the court concerning his case were “sensible and reasonably well-written.” Lemery had expressed concerns about his ability to afford an attorney, had complained about lack of access to a law library, and had informed the court that he had been found incompetent by the United States Navy and the Social Security Administration. He had filed a pro se request for a mental evaluation, and he had pointed out alleged errors in his arrest warrants. The court also reviewed the evidence adduced against Lemery at trial, including evidence from “the myriad of witnesses, many of whom lived in the defendant’s house,” and concluded that the evidence failed to show “anything that would support a conclusion that [Lemery] was legally insane during [the] course of [his] criminal conduct.”

Thereafter, Lemery’s appellate counsel filed a motion for new trial, raising one ground for relief, that trial counsel rendered ineffective assistance when she failed to timely request funds for an independent psychological examination. Following a hearing at which both Lemery’s trial counsel and the guardian ad litem testified, the court denied the motion.

Trial counsel testified during the hearing on Lemery’s motion for a new trial that she had been prepared for trial. She had met with Lemery, had reviewed voluminous discovery, independently investigated the case, had negotiated a plea offer (which Lemery rejected), and had worked with the guardian ad litem in obtaining all of Lemery’s medical records.

Counsel testified that she knew by the end of July 2012 that the court-appointed psychologist had concluded that Lemery was competent to stand trial and that her report would reflect that. She testified that she did not ask for an independent psychological evaluation at that time because she was not sure that she needed one. Counsel testified that she found Lemery to be “a smart guy” who read through the State’s discovery and who could communicate with her and assist in his defense. Lemery addressed the court during a motion hearing, he helped counsel formulate questions to ask witnesses, and he never gave counsel any indication that he had committed the crimes while legally insane. Nevertheless, counsel moved for a continuance and for funds for an independent evaluation after reviewing the psychologist’s report, stating that she saw evidence in Lemery’s childhood medical records that led her to suspect that Lemery may have had more complex and deep-seated psychological problems than she had earlier believed.

Lemery’s guardian ad litem also testified that she had met with him on many occasions to discuss his medical records and that she had found him to be cooperative. She had also corresponded with him. He provided her with the names of doctors who had treated him. She had discussed with and obtained signed medical releases from him, and she testified that Lemery appeared to understand the purpose of the medical release she obtained from him. The guardian ad litem testified that Lemery always behaved “very appropriately” with her.

After the hearing and after reviewing the entire record (including Lemery’s many letters to the court), the trial court concluded that Lemery had failed to present any evidence that counsel’s performance was deficient under the circumstances or that an independent psychological evaluation would have contributed anything to the defense of his case.

(a) Lemery argues that the trial court erred in failing to order, sua sponte, a hearing on the issue of his competency to stand trial.

Atrial court is to conduct, sua sponte, a competency hearing when there is information which becomes known to it, prior to or at the time of the trial, sufficient to raise a bona fide doubt regarding the defendant’s competence. The salient question is whether the trial court received information which, objectively considered, should reasonably have raised a doubt about the defendant’s competency and alerted the trial court to the possibility that the defendant could neither understand the proceedings, appreciate their significance, nor rationally aid his attorney in his defense.

(Citation and punctuation omitted.) Lytle v. State, 290 Ga. 177, 179 (3) (718 SE2d 296) (2011). In determining whether such a hearing is required, the focus is on “any evidence of the defendant’s irrational behavior, the defendant’s demeanor at trial, and any prior medical opinion regarding the defendant’s competence to stand trial.” (Citation omitted.) Traylor v. State, 280 Ga. 400, 404 (4) (a) (627 SE2d 594) (2006). In this case, the trial court had before it a psychologist’s finding, based upon a recent evaluation and a review of Lemery’s medical history, that he was competent to stand trial. As recounted above, the court also observed that Lemery appeared to appreciate his circumstances and that he was able to communicate both with the court and his attorney, and the court observed nothing in Lemery’s behavior to suggest that he was otherwise incompetent to stand trial. Thus, this claim of error is without merit. See Traylor v. State, 280 Ga. at 404-405 (4) (a).

(b) Lemery also argues that the trial court erred in denying appellate counsel’s post-conviction motion for funds for an independent psychiatric evaluation.

“The grant or denial of a motion for independent psychiatric examination lies within the discretion of the trial court and will not be overturned unless an abuse of discretion is shown.” (Citation, punctuation and footnote omitted.) Pullins v. State, 232 Ga. App. 267, 268 (2) (501 SE2d 612) (1998). In this case, as in Pullins, the trial court granted the initial motion for a psychological examination and ordered that Lemery be evaluated both as to his mental competency to stand trial and his competency at the time of commission of the offense. As outlined above, the psychologist opined that Lemery was competent to stand trial and legally sane at the time of the offense, and the record contains no contradictory proof demonstrating that Lemery was unable to intelligently participate during trial so as to call into question the existing psychological findings. Under these circumstances, we find no abuse of discretion in the denial of Lem-ery’s post-conviction motion for an independent psychological evaluation. See id.

(c) The trial court did not err in denying Lemery’s motion for a new trial on the ground of ineffective assistance of trial counsel.

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. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)[J 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 also Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009) (In analyzing the prejudice element, “[t]he question is whether there is a reasonable probability that, absent [counsel’s] errors, the factfinder would have had a reasonable doubt respecting guilt.”) (citation and punctuation omitted). Failure to satisfy either prong of the Strickland standard is fatal to an ineffective assistance claim. Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995); Pondero. State, 201 Ga.App. 388, 389 (1) (411 SE2d 119) (1991). As the appellate court, “[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.

Trial counsel requested and obtained a full psychiatric evaluation of Lemery. She testified during the motion hearing that she believed that the evaluation was fair and that she had no reason to disagree with it. She moved for a continuance and for additional testing, however, only upon discovering information in Lemery’s records indicating that his mental health problems may have been more pervasive than she had earlier suspected. Lemery has not shown that his counsel unreasonably relied on the psychological evaluation or that her efforts on the eve of trial constituted deficient performance. Moreover, Lemery has presented no evidence from which the court could infer that an independent evaluation would have yielded conclusions that were contrary to those of the first evaluation. Consequently, the trial court did not err in concluding that Lemery failed to carry his burden of showing that his trial counsel was ineffective. See Whitus v. State, 287 Ga. 801, 803-804 (2) (700 SE2d 377) (2010) (ordinarily in a non-capital case the decision to forego or curtail an investigation of the accused’s mental health is reasonable when an expert has determined that the defendant is fit to stand trial or was sane at the time of the offense).

Decided February 9, 2015.

Mary Erickson, for appellant.

Brian K. Fortner, District Attorney, Rachel D. Ackley, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, C. J., and McMillian, J., concur.

       The State indicted Lemery for trafficking in three counts for the separate acts of knowingly maintaining, knowingly harboring, and knowingly transporting R. M. for the purpose of sexual servitude. The jury convicted Lemery of all three counts.

       “ ‘Sexually explicit conduct’ shall have the same meaning as set forth in Code Section 16-12-100.” OCGA § 16-5-46(a) (5). The acts at issue in this case-acts of masturbation and oral and anal sexual intercourse - are included within the definition of sexually explicit conduct. See OCGA § 16-12-100 (a) (4).

       See United States v. Kozminski, 487 U. S. 931, 944 (II) (A) (108 SCt 2751, 101 LE2d 788) (1988), superseded by statute, Trafficking Victims Protection Act of 2000 (“TVPA”) (Pub. L. 106-386, 114 Stat. 1464 (codified as amended in scattered sections of Titles 8, 18, 22 USC) (“[0]ur precedents clearly define a Thirteenth Amendment prohibition of involuntary servitude enforced by the use or threatened use of physical or legal coercion. The guarantee of freedom from involuntary servitude has never been interpreted specifically to prohibit compulsion of labor by other means, such as psychological coercion.”).

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

       OCGA § 16-5-46 does not expressly state the standard by which the jury should evaluate the behavior of the trafficker and of the victim. That the statute provides that coercion may be the result of certain threatened psychological, financial, or reputation harms implies, however, that the jury should evaluate all of the circumstances surrounding the alleged acts of trafficking, including the victim’s vulnerabilities and any inequalities of power between the victim and the trafficker in determining whether the victim was coerced. See, e.g., United States v. Nyuon, 587 Fed. Appx. 346 (8th Cir. 2014) (a victim’s family circumstances and history of abuse were relevant to her decision to remain with the defendant and to whether her conduct was coerced); United States v. Bell, 761 F3d 900, 913 (8th Cir. 2014) (“Victim vulnerability is relevant to whether a victim was coerced.”) (citation omitted). See also 18 USC § 1591 (e) (4) (defining a threatened “serious harm” under the TVPA as any harm “that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing commercial sexual activity in order to avoid incurring that harm”) (emphasis supplied). See generally, Kathleen Kim, “The Coercion of Trafficked Workers,” 96 Iowa L. Rev. 409 (2011) (discussing the various legal, philosophical, and moral frameworks for evaluating coercion).


author: Dillard, Judge.

text:
    A13A2465.
    DOCO CREDIT UNION v. CHAMBERS et al.
    (768 SE2d 808)
   Dillard, Judge.

DOCO Credit Union f/k/a DOCO Regional Federal Credit Union (“DOCO”) filed a quiet-title action in the Superior Court of Lee County in order to establish that it had legal title to certain properties located in that county and upon which it had foreclosed pursuant to the powers of sale contained in several security deeds. Appellees Ida and Cheryl Chambers filed a motion to dismiss and plea in abatement, contending that DOCO’s quiet-title action was barred by the Chambers’ previously filed lawsuit pending in the Superior Court of Dougherty County, which involved some of the same properties. The Superior Court of Lee County summarily granted Ida and Cheryl Chambers’s motion and dismissed DOCO’s quiet-title action. On appeal, DOCO argues that the trial court erred by (1) finding that the Quiet Title Act was subject to abatement by the Dougherty County action; (2) failing to appoint a special master; (3) dismissing the case when Lee County was the only proper venue; and (4) ignoring the venue provisions set forth in the relevant security deeds. For the reasons set forth infra, we reverse.

The facts pertinent to our consideration are undisputed. In 2009, William Chambers, Jr. (“Bill Chambers”), son of Ida Chambers and husband of Cheryl Chambers, executed, for the benefit of Chambers Motors, Inc. (the family business), a series of promissory notes in favor of DOCO in exchange for loans totaling over $1.5 million. The promissory notes were secured by several pieces of real property located in both Crisp and Lee Counties (collectively, the “Properties”). And depending on the ownership of the Properties, the security deeds were purportedly executed by Ida Chambers, individually or as executrix of the Estate of William H. Chambers, Sr., or by Bill Chambers, individually or as the Trustee of the Ida W. Chambers Revocable Trust or the Testamentary Trust established under the Last Will & Testament of William H. Chambers, Sr. (collectively, the “Trusts”).

Bill Chambers defaulted on the loans, and DOCO obtained a judgment against him for the outstanding balance. Thereafter, in September 2011, DOCO foreclosed on various properties, including six of the eight properties located in Lee County (the “Lee County Properties”), in accordance with the power of sale contained in the security deeds. DOCO was the highest bidder and purchased the Properties at the foreclosure sale. At no time did Ida or Cheryl Chambers object to the foreclosures, nor did any member of the Chambers family make any attempt to pay the outstanding debt in order to save the collateralized Properties.

Following the foreclosures, Bill Chambers filed for Chapter 7 bankruptcy protection. Then, in March 2012, more than six months after the foreclosures, DOCO received a letter from counsel for Cheryl Chambers and the Trusts, alleging that Bill Chambers’s conveyance of certain Properties owned by the Trusts constituted a breach of his fiduciary duties, and that DOCO aided and assisted in that breach. The letter concluded that the use of that collateral was void and demanded a return transfer of those Properties and compensation for damages.

After receipt of counsel’s correspondence, DOCO filed in the bankruptcy proceeding a motion for relief from stay in order to prosecute a quiet-title action to resolve the claims asserted in the letter. And while that motion was pending, in January 2013, Ida and Cheryl Chambers initiated a lawsuit in the Superior Court of Dough-erty County (the “Dougherty County Lawsuit”). In the complaint, Ida and Cheryl Chambers alleged that Bill Chambers and DOCO conspired to unlawfully convert the Properties and asserted against DOCO claims of conversion, aiding in breach of fiduciary duty, conspiracy, interference with business/contractual relations, wrongful foreclosure, civil RICO, and constructive trust. In addition, they sought monetary damages, attorney fees, injunctive relief, and an accounting. Significantly, at no time did Ida or Cheryl Chambers move to set aside the foreclosures. DOCO answered the complaint, denied the allegations, and filed a counterclaim to quiet title to the Properties.

In February 2013, after obtaining relief from the bankruptcy stay, DOCO commenced its quiet-title action in the Lee County Superior Court (the “Quiet Title Action”) to remove clouds on the titles of the Lee County Properties so that it could market and sell same. In addition to their answer, Ida and Cheryl Chambers filed a motion to dismiss and plea in abatement, arguing that DOCO’s Quiet Title Action was subject to abatement by the previously filed Dough-erty County Lawsuit. Specifically, the motion asserted that the Dougherty County Lawsuit and the Quiet Title Action involved the same parties, represented the same cause of action, and that the Dougherty County court was the only venue with jurisdiction to hear all of the claims between the parties. Finally, the motion alleged that by filing the Quiet Title Action, DOCO sought nothing more than an improper declaratory judgment in an attempt to obtain “an advisory opinion as to the legitimacy of its foreclosures.” DOCO opposed the motion, but the Lee County Superior Court, nonetheless, granted it in a summary order. This appeal follows.

1. DOCO first contends that the trial court erred in holding that the Dougherty County Lawsuit abated the Quiet Title Action. We agree.

We begin by acknowledging the long-standing rule that “when two civil actions involving the same cause of action and the same parties remain pending but are filed at different times, the later-filed action is abated and must be dismissed.” This ancient and well-established principle is rooted in recognition of the fact that “no one should be twice harassed, if it appear [s] to the Court that it is for one and the same cause.” And even if two causes of action are not identical but, technically speaking, are “legally disparate and rest in opposite parties,” the second suit will still be abated if those actions “arise out of the same transaction and if the second suit would resolve the same issues as the first pending suit.”

It is against this jurisprudential backdrop that we examine the two causes of action involved in the case sub judice. Ida and Cheryl Chambers’s first-filed action is based in tort; they seek monetary and punitive damages for the allegedly wrongful foreclosures that resulted from DOCO’s fraudulent conduct in conspiring with their son and husband, respectively, to unlawfully use the Properties owned by the Trusts as collateral for loans to the family business. And by electing to pursue monetary damages, Ida and Cheryl Chambers necessarily do not seek a return of title to the Properties, because an “injured party may not both set aside or cancel the foreclosure and also recover damages for the value of the property.”

DOCO, on the other hand, by way of the Quiet Title Action, is seeking to “readily and conclusively establish^ ]” that it is the owner and title holder of the Lee County Properties. Indeed, an action to quiet title, which must be brought in the county in which the land is situated, is a “special statutory proceeding designed for [that] specific purpose.” And by adopting the Quiet Title Act of 1966, the General Assembly intended to establish “an efficient, speedy and effective means of adjudicating disputed title claims,” so as to “eliminate the possibility that land in this state could not be sold due to any uncertainty about the ownership of any interest in the property.” Thus, as the present title holder to the Lee County Properties, a quiet-title action is both an available and appropriate vehicle through which DOCO can establish its right to same.

It follows, then, that the two causes of action at issue in this case are neither identical nor do they resolve the same issues. The Quiet Title Action seeks to establish DOCO as the legal title holder of the Lee County Properties, while the Dougherty County Lawsuit seeks to hold DOCO monetarily responsible for the allegedly unlawful acquiring of the titles to those and other Properties. And because the Quiet Title Action to the Lee County Properties was required to be brought in that county, the Superior Court of Dougherty County lacked jurisdiction to consider the petition. Consequently, we reverse the court’s erroneous dismissal of DOCO’s Quiet Title Action.

2. DOCO next argues that the trial court erred by failing to appoint a special master. Again, we agree.

In Georgia, our Quiet Title Act requires “a trial court to appoint a special master” and for that special master to “make a report of the special master’s findings to the trial court.” And while the quiet title statutory scheme provides that

the special master, once appointed, shall have complete jurisdiction within the scope of the pleadings to ascertain and determine the validity, nature, or extent of petitioner’s title and all other interests in the land ... or to remove any particular cloud or clouds upon the title to the land and to make a report of his findings to the judge of the court, the trial courtis not divested of its overall jurisdiction of the case and its sole authority under OCGA § 23-3-67 to issue the final decree.

Decided February 10, 2015.

Seyfarth Shaw, C. Walker Ingraham, Rebecca A. Davis, for appellant.

Watson Spence, Christopher S. Cohilas, Sarah F. Kjellin, for appellees.

Thus, in this action to quiet title, the trial court should have appointed a special master to submit a report of its findings. And because we reverse the trial court’s dismissal of the Quiet Title Action, we remand the case with direction for the trial court to appoint a special master.

3. Given our holdings in Divisions 1 and 2, supra, we need not address DOCO’s remaining claims of error.

For all of the foregoing reasons, we reverse the trial court’s order dismissing DOCO’s action and remand the case for the court to appoint a special master.

Judgment reversed and case remanded with direction.

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

       Under Ga. Const. art. VI, § VI, ¶ III (1), the Supreme Court of Georgia has original appellate jurisdiction over “[cjases involving title to land.” And because this Court concluded that jurisdiction mightlie with our Supreme Court (see Tharp v. Harpagon Co., 278 Ga. 654, 655 (1) (604 SE2d 156) (2004)), we transferred the appeal to that court for disposition. On May 7, 2014, the Supreme Court of Georgia issued an order transferring the appeal back to this Court, concluding that “the issue raised on appeal does not require the resolution of a question regarding title to land,” but instead “involves only whether the trial court erred in deciding that appellant’s complaint should be abated or dismissed for failure to state a claim.” See Graham v. Tallent, 235 Ga. 47, 49 (218 SE2d 799) (1975) (defining “title to land” cases as “actions at law, such as ejectment and statutory substitutes, in which the plaintiff asserts a presently enforceable legal title against the possession of the defendant for the purpose of recovering the land”) (citation and punctuation omitted). Then, on May 28, 2014, this Court reinstated the appeal as a September 2014 term case. See CC Financial, Inc. v. Ross, 250 Ga. 832, 834 (3) (301 SE2d 262) (1983).

       Ida and Cheryl Chambers allege that one or more of the signatures on the security deeds were forged. This factual dispute, however, is not relevant to our abatement analysis.

       Because two of the security deeds contain what DOCO characterizes as a scrivener’s error, in which the names of the interest-holding Trusts are transposed, DOCO did not foreclose on the remaining two Lee County Properties and sought reformation of the security deeds in the Quiet Title Action (described infra).

       Bill Chambers was not named as a defendant in the lawsuit.

       Although the Dougherty County Lawsuit included a claim seeking the creation of “a constructive trust as to each [of the Properties] or any income derived therefrom... in favor of its respective owner,” Ida and Cheryl Chambers cannot claim the right to title to the Properties without first setting aside the foreclosures. See generally Oduok v. Wedean Properties, Inc., 319 Ga. App. 785, 787 (1) (a) (738 SE2d 626) (2013) (“The purchaser at a foreclosure sale under a power of sale in a security deed is the sole owner of the property until and unless the sale is set aside.” (punctuation omitted)); accord Vines v. LaSalle Bank Nat’l Ass’n, 302 Ga. App. 353, 353 (691 SE2d 242) (2010); Jackman v. LaSalle Bank, N. A., 299 Ga.App. 894, 895 (1) (683 SE2d 925) (2009).

        Odion v. Varon, 312 Ga. App. 242, 244 (2) (718 SE2d 23) (2011); see OCGA § 9-2-44 (a) (“[T]he pendency of a former action for the same cause of action between the same parties in the same or any other court having jurisdiction shall he a good cause of abatement.”).

        Atlanta Airmotive, Inc. v. Newnan-Coweta Airport Auth., 208 Ga. App. 906, 906 (1) (432 SE2d 571) (1993) (punctuation omitted); see also Rogers v. Hoskins, 15 Ga. 270, 273 (2) (1854) (same); Schoen v. Home Fed. Sav. & Loan Ass’n of Atlanta, 154 Ga. App. 68, 69 (267 SE2d 466) (1980) (same).

        Atlanta Airmotive, 208 Ga. App. at 906(1) (punctuation omitted); see also Schoen, 154 Ga. App. at 69 (same).

        Atlanta Airmotive, 208 Ga. App. at 906 (1) (punctuation omitted); see also Rogers, 15 Ga. at 274 (2) (same); Schoen, 154 Ga. App. at 69 (same); Hood v. Cooledge, 39 Ga. App. 476, 478 (1) (147 SE 426) (1929) (same).

        Calhoun First Nat’l Bank v. Dickens, 264 Ga. 285, 286 (1) (443 SE2d 837) (1994) (punctuation omitted).

        Porter v. Houghton, 273 Ga. 407, 407 (542 SE2d 491) (2001) (punctuation omitted); see OCGA § 23-3-60 (“The purpose of this part is to create a procedure for removing any cloud upon the title to land... and for readily and conclusively establishing that certain named persons are the owners of all the interests in land defined by a decree entered in such proceeding, so that there shall be no occasion for land in this state to be unmarketable because of any uncertainty as to the owner of every interest therein.”).

        See Ga. Const. art. VI, § II, ¶ II (“Cases respecting titles to land shall be tried in the county where the land lies —”); OCGA § 23-3-62 (a) (“The proceeding in rem shall be instituted by filing a petition in the superior court of the county in which the land is situated.”); Smith v. Ga. Kaolin Co., Inc., 264 Ga. 755, 755-56 (1) (449 SE2d 85) (1994).

        Woodruff v. Morgan County, 284 Ga. 651, 651 (1) (670 SE2d 415) (2008) (punctuation omitted); see also James v. Gainey, 231 Ga. 543, 544 (203 SE2d 163) (1974) (same).

       OCGA § 23-3-60 et seq.

        Nelson v. Ga. Sheriffs Youth Homes, Inc., 286 Ga. 192, 192 (686 SE2d 663) (2009) (punctuation omitted); see also Heath v. Stinson, 238 Ga. 364, 365 (233 SE2d 178) (1977) (same).

        Cowron & Co. v. Shehadeh, 268 Ga. 383, 383 (490 SE2d 82) (1997); see also OCGA § 23-3-60; Smith, 264 Ga. at 756 (2). Because the Quiet Title Act sets forth specific rules and procedures that govern its terms, its statutory provisions control to the extent that they conflict with the Civil Practice Act. See OCGA § 9-11-81; Woodruff, 284 Ga. at 651-52 (1).

        See Porter, 273 Ga. at 407 (“In cases such as this involving record title to numerous tracts of land and multiple parties . . . , the quiet title in rem action, which affords complete relief within a procedural framework providing adequate safeguards of the rights of all parties is always available . . . .”); see also Dykes Paving and Const. Co., Inc. v. Hawk’s Landing Homeowners Ass’n, Inc., 282 Ga. 305, 305 (647 SE2d 579) (2007) (“To state a claim for quiet title relief, a plaintiff must allege more than a right to acquire title; it must allege that it presently holds current title or current prescriptive title.”).

        See BBC Land and Dev., Inc. v. Bank of N. Ga., 294 Ga. App. 759, 760 (1) (670 SE2d 210) (2008) (application for confirmation not abated by a previously filed action for wrongful foreclosure because a confirmation action is a special statutory proceeding that resolves only issues related to legality of the sale itself); see also Cheely v. State of Ga., 251 Ga. 685, 687 (3) (309 SE2d 128) (1983) (second validation proceeding not abated by the first because actions involved bonds in different amounts and with different due dates and thus presented separate and distinct claims); Cf. Schoen, 154 Ga. App. at 70 (dispossessory action abated by a previously pending lawsuit seeking the cancellation of a fraudulent security deed because “the determination of entitlement to the land in the first action will necessarily dispose of the issue of entitlement in the second action . . .”).

       For this same reason, DOCO’s counterclaim in the Dougherty County Lawsuit cannot he considered a previously filed quiet-title action to the Lee County Properties. See Aiken Dermatology & Skin Cancer Clinic, P. A. v. DavLong Sys., Inc., 314 Ga. App. 699, 703 (2) (725 SE2d 835) (2012) (“If it appears from the face of the pleadings in the first-filed case that the court therein does not have jurisdiction to resolve the pending claims on the merits, then the plea of abatement will not lie and the later-filed suit may proceed forward.” (punctuation omitted)); Bhindi Bros. v. Patel, 275 Ga. App. 143, 146 (619 SE2d 814) (2005) (same).

       Nelson, 286 Ga. at 192; OCGA § 23-3-63 (“The court, upon receipt of the petition together with the plat and instruments filed therewith, shall submit the same to a special master who shall be a person who is authorized to practice law in this state and is a resident of the judicial circuit wherein the action is brought.”).

        Nelson, 286 Ga. at 192-93; OCGA § 23-3-66 (“[T]he special master shall have complete jurisdiction within the scope of the pleadings to ascertain and determine the validity, nature, or extent of petitioner’s title and all other interests in the land, or any part thereof, which may be adverse to the title claimed by the petitioner, or to remove any particular cloud or clouds upon the title to the land and to make a report of his findings to the judge of the court.”).

        Nelson, 286 Ga. at 193 (citation and punctuation omitted).

        See id. (remanding the trial court’s grant of summary judgment in a quiet-title action when the trial court’s summary adjudication lacked findings of fact and a report of the special master’s findings); Woodruff, 284 Ga. at 652 (1) (reversing and remanding the trial court’s grant of a default judgment in an in rem quiet-title action when no special master was appointed); Boyd v. JohnGalt Holdings, LLC, 294 Ga. 640, 643 (2) (755 SE2d 675) (2014) (finding, with regard to a counterclaim to quiet title, that “the appointment of a special master [is] mandatory”).


author: Boggs, Judge.

text:
    A14A1575.
    CRIMLEY v. STATE OF GEORGIA.
    (768 SE2d 813)
   Boggs, Judge.

In this civil forfeiture case pursuant to OCGA § 16-13-49, the trial court granted the State of Georgia’s motion to strike the answers of Christopher S. Crimley (“Crimley”) and his wife and entered an order of disposition and distribution of the seized property. Crimley appeals, asserting that he had no fair opportunity to respond to the motion to strike, that service of the motion was inadequate, and that his answer was sufficient. We find his answer sufficient to withstand a motion to strike under the authority of Williams v. State of Ga., 222 Ga. App. 270 (474 SE2d 98) (1996). We therefore reverse the trial court’s order striking Crimley’s answer and making disposition of the property and remand for further proceedings consistent with this opinion.

The record shows that on November 8, 2013, the State of Georgia filed an in rem “Complaint for Forfeiture” against approximately $18,000 and a Cadillac DeVille, alleging that the property was seized by police during execution of a search warrant on September 12, 2013. The State requested a disposition hearing 60 days after service of the complaint. OCGA § 16-13-49 (o) (5) provides: “If an answer is filed, a hearing must be held within 60 days after service of the complaint unless continued for good cause and must be held by the court without a jury.” There is no rule nisi in the file, but after the State filed its motion to strike the answers and for disposition, the trial court continued the hearing “for good cause” to January 16, 2014, finding that the State’s motions were “potentially dispositive.”

After the hearing, the trial court found:

[T]he answers submitted provide insufficient detail, and do not provide the State the statutorily required information necessary to expedite the forfeiture proceedings. If a Claimant fails to comply with the strict pleading requirements of OCGA § 16-13-49 by not providing required particularized details, this failure supports a trial court’s ruling that the claimant’s answer is deficient. A property owner’s rights to seized property are dependent upon the filing of a statutorily sufficient claim to the property in response to the notice of forfeiture.

(Citations and punctuation omitted.) This appeal followed.

OCGA § 16-13-49 (o) (3) provides:

An owner of or interest holder in the property may file an answer asserting a claim against the property in the action in rem. Any such answer shall be filed within 30 days after the service of the summons and complaint. Where service is made by publication and personal service has not been made, an owner or interest holder shall file an answer within 30 days of the date of final publication. An answer must be verified by the owner or interest holder under penalty of perjury. In addition to complying with the general rules applicable to an answer in civil actions, the answer must set forth:
(A) The caption of the proceedings as set forth in the complaint and the name of the claimant;
(B) The address at which the claimant will accept mail;
(C) The nature and extent of the claimant’s interest in the property;
(D) The date, identity of transferor, and circumstances of the claimant’s acquisition of the interest in the property;
(E) The specific provision of this Code section relied on in asserting that the property is not subject to forfeiture;
(F) All essential facts supporting each assertion; and
(G) The precise relief sought.

The trial court may strike an answer when it fails to comply with the requirements of the Code section, and in the absence of a sufficient answer, no hearing is required pursuant to OCGA § 16-13-49 (o) (5). Holmes v. State of Ga., 270 Ga. App. 882, 882 (1) (608 SE2d 325) (2004). The trial court’s ruling on a motion to strike is reviewed for abuse of discretion. Howard v. State of Ga., 321 Ga. App. 881, 883 (743 SE2d 540) (2013). “However, we conduct a de novo review of the trial court’s application of the law to undisputed facts, owe no deference whatsoever to the trial court’s conclusions of law, and are free to apply anew the legal principles to the facts.” (Citation and footnote omitted.) Morgan v. State of Ga., 323 Ga. App. 852, 853 (748 SE2d 491) (2013).

The body of Crimley’s first verified answer, filed on December 16, 2013, does not comply with OCGA § 16-13-49 (o) (3) (A)-(G), other than by stating the caption of the proceedings and the name of the claimant as required by subsection (A). It pleads none of the specific facts required, and while it refers to an Exhibit “A,” no document is so designated. However, as the State acknowledges, a verified document titled “Notice of Claim” was filed with this first answer, and that document refers to and incorporates 16 pages of supporting documents. Three days later, on December 19, Crimley filed a second verified answer, identical to the first, but apparently omitting the “Notice of Claim” while attaching additional documents.

Neither of the two answers, standing alone, complies with the statutory requirements. But in Williams v. State, supra, a 5-4 whole court decision, this Court concluded that the use of attached documents to show the required elements of OCGA § 16-13-49 (o) (3) is sufficient to overcome a motion to strike. There, rather than formally incorporating the documents by reference, the claimant attached to her answer a certificate of title and tag registration for a vehicle subject to forfeiture. Id., 222 Ga. App. at 271. The trial court struck her answer as insufficient, and we reversed, holding that these attachments were sufficient to show her ownership, the party from whom purchased, and her interest in the vehicle: “To deny [claimant] a hearing because she incorporated documents showing this but did not repeat elsewhere in her answer that she purchased the car from [the seller] on that date would elevate form over substance to an intolerable degree.” Id.

In determining whether Crimley complied with the requirements of OCGA § 16-13-49 (o) (3), therefore, we must consider all of his filings in response to the State’s complaint as constituting his answer — even though they are not formally or expressly incorporated in the two documents styled “Answer.” And in considering the sufficiency of the answer, we must also bear in mind the legislative intent:

[T]he intent of the General Assembly when it enacted OCGA § 16-13-49 was twofold: to protect the interest of innocent property owners and to provide for prompt disposition of contraband property. Furthermore, while compliance with the strict pleading requirements is necessary, these requirements must be interpreted reasonably. Put another way, while a claimant must satisfy each of the pleading requirements contained in OCGA § 16-13-49 (o) (3), the trial court must consider the claimant’s compliance with these requirements in a reasonable manner.

(Citations, punctuation and footnotes omitted.) Morgan, supra, 323 Ga. App. at 854-855. The answer should “assure[ ] some degree of legitimacy to the Appellants’ prima facie claim of ownership, and ... otherwise contain[ ] factual information necessary to expedite the proceeding.” Arreola-Soto v. State of Ga., 314 Ga. App. 165, 167 (1) (723 SE2d 482) (2012); see also Harris v. State of Ga., 222 Ga. App. 267, 269 (474 SE2d 201) (1996).

Construing Crimley’s answer in light of these authorities, we conclude that it is sufficient to show the address at which he will accept mail, the nature and extent of his interest in the property, the date, identity of transferor, and circumstances of his acquisition of that interest, the Code section relied on, the relief sought, and the facts supporting those assertions. The “Notice of Claim” states that Crimley “will accept mail through his attorney” and then gives the address of his attorney under his signature. The notice attaches income tax returns showing the amounts that Crimley alleges he saved from income tax refunds and gifts from a named individual, and a ledger card from a named car dealer showing the price, date of purchase, and loan payments on the vehicle. While Crimley does not cite a specific subsection relied upon in asserting that the property is not subject to forfeiture, citing only OCGA § 16-13-49 (n) generally, this is not fatal to his claim if his contentions can be gleaned from his answer. See Morgan, supra, 323 Ga. App. at 855 (2) (citing incorrect subsection not fatal when substance alleged). Crimley’s Notice of Claim recites the language of OCGA § 16-13-49 (d) (3) and (6) in denying that the property was subject to forfeiture.

In sum, Crimley’s answers and their various attachments, while inartfully drafted and poorly presented, are sufficient as a whole to survive a motion to strike. See Harris, supra, 222 Ga. App. at 268-269 (lack of detail concerning property “does not render the claim ‘insufficient’ or ‘deficient’ as a matter of law”); Glenn v. State of Ga., 320 Ga. App. 214, 218 (2) (739 SE2d 692) (2013) (failure to provide “a more precise accounting” of funds “does not render his claim ‘insufficient’ as a matter of law”).

Decided February 10, 2015.

Randall A. Schmidt, for appellant.

Meg E. Heap, District Attorney, Brian M. Casey, Assistant District Attorney, for appellee.

Moreover, “[a]s we have recognized, this is merely the pleading stage,” and Crimley is not required to prove his case in his answer. (Citations, punctuation and footnote omitted). Baker v. State of Ga., 269 Ga. App. 722, 727 (605 SE2d 126) (2004). But because this is merely a question of sufficiency of pleadings, we also note that “[w]hile we find [Crimley]’s answer met the pleading requirements entitling him to a hearing as to whether the property should be forfeited, we do not address the merits of either the State’s forfeiture case or [Crimley]’s ultimate claims to the property.” Glenn, supra, 320 Ga. App. at 218 (2), n. 5.

The trial court’s judgment is accordingly reversed, and the case remanded for a hearing within 60 days after receipt of the remittitur. See OCGA § 16-13-49 (o) (5).

Judgment reversed and case remanded with direction.

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

       Crimley’s wife, Judy Crimley, failed to appear at the hearing on the motion to strike her handwritten, pro se answer. She is not a party to this appeal.

       Crimley contends that the State originally filed a notice under OCGA § 16-13-49 (n); the State denies it. But the analysis of the required contents of Crimley’s responsive pleadings remains the same, as the language of the two subsections is “nearly identical.” Arreola-Soto v. State of Ga., 314 Ga. App. 165, 166 (1), n. 6 (723 SE2d 482) (2012).

       Appellant requested in his notice of appeal that the transcript of the hearing on the motion to strike not be filed.

       While the majority in Williams asserted that the answer “incorporates copies of her certificate of title to the subject car and the tag registration,” id. at 271, the dissent pointed out that the documents were not incorporated by reference, hut merely attached to the answer, and argued that the statute’s “specific statutory requirements” should control. Id. at 274. But a majority of this Court disagreed and found attachment without an explicit incorporation in the answer to he sufficient.

       The amendment provisions of the Civil Practice Act apply to forfeiture proceedings, and amendments to answers therefore “must be considered in determining the legal sufficiency of a property owner’s answer under [OCGA] § 16-13-49 (o) (3).” (Citation and punctuation omitted.) Jackson v. State of Ga., 231 Ga. App. 320, 321 (1) (498 SE2d 159) (1998).

       Compare Serchion v. State of Ga., 230 Ga. App. 336 (496 SE2d 333) (1998), cited by the trial court, in which the claimant gave no details of the circumstances of his acquisition of a vehicle, and only an approximate date for the alleged purchase from an unidentified “car lot on Thornton Road.” (Punctuation omitted.) Id. at 338 (2).

       We therefore need not address Crimley’s remaining enumerations of error, which concern notice of the hearing on the State’s motion to strike.


author: McMillian, Judge.

text:
    A14A1834.
    THE STATE v. LOPEZ-CHAVEZ.
    (768 SE2d 816)
   McMillian, Judge.

Pursuant to OCGA § 5-7-1 (a) (4), the State appeals the grant of Alexandra E. Lopez-Chavez’s motion to suppress evidence of contraband seized during the execution of a “no-knock” search warrant at her home.* Because the trial court properly concluded that the no-knock provision was unsupported by particular facts and circumstances set out in the warrant and the record does not disclose any exigent circumstances authorizing an unannounced entry into the premises, we affirm.

The record shows that on May 22, 2013, Investigator Marquis Hagans with the Columbia County Sheriff’s Office applied for and obtained a warrant to search a residence and curtilage located at 484 White Road in Columbia County, Georgia, for the purpose of locating marijuana, drug paraphernalia, financial records, electronic devices and other evidence that might support a marijuana distribution operation. The affidavit presented to the magistrate court recited that in 2006, a sheriff’s department investigator received information that people were selling guns and marijuana from 484 White Road, and in 2009, another investigator received information that Julian Lopez-Chavez was transporting marijuana from Texas to the White Road address. Four years later, on May 21, 2013, a trash pull was conducted from 484 White Road, and a pill bottle was found. During surveillance the next day, a gray van was observed arriving at the residence, a large box was loaded into the van, and the van left. A short time later, a red Cadillac arrived at 484 White Road, and the driver, later identified as Jeffery Martin, retrieved an item from the passenger side of the vehicle, walked to the right side of the residence, and returned with a white plastic bag. The vehicle was stopped for a seatbelt violation, and a search was conducted after a strong odor of marijuana was detected emitting from the vehicle. The search of the vehicle yielded approximately one pound of marijuana.

In addition, the warrant contained a request to allow officers to execute the warrant without giving verbal notice of their presence “since [forewarning] would increase the risk of injury to the executing officers and possible destruction of evidence.”

During the motion to suppress hearing, which occurred over the course of two days, Investigator Hagans testified that police had been conducting a surveillance operation of the premises based on information that had been received from other law enforcement agencies concerning drug activity occurring on the premises; however, this information was not included in the warrant, and Hagans testified that he did not inform the magistrate that other law enforcement agencies were also suspicious of possible drug activity on the premises.

Hagans also testified that Jeffrey Martin was unknown to local Columbia County law enforcement prior to his arrest on May 22, 2013. Further, Martin was not actually observed going into the house located on the premises, and there is no indication that Martin provided the officers any information about a drug or weapons distribution operation being carried out on the premises, other than the information he provided about buying the marijuana which was seized when he was stopped.

Hagans also testified concerning the 2006 and 2009 calls to police. Hagans acknowledged that he had not had any interactions with either of the individuals who made these calls, he did not have any information concerning their reliability, and he did not provide the magistrate with any information concerning the reliability of these individuals. Hagans further testified that at the time he presented the affidavit, he did not have any additional information concerning weapons on the premises, and he did not recall providing any information to the magistrate that was not included in the affidavit.

Concerning execution of the warrant, testimony was presented that officers entered the residence with their weapons drawn in a SWAT-type formation after one of the officers kicked in the door. Although the officers repeatedly identified themselves and announced their presence after they were inside the house, they did nothing to signal their presence prior to entering the residence.

Following the hearing, the trial court found probable cause to support the issuance of the warrant, but determined the request for a no-knock entry was based on generalizations and stale, unsubstantiated information, unsupported by “any credible particularized facts and circumstances.” Accordingly, the trial court found the warrant was illegally executed and suppressed all evidence seized as a result of the search. The State challenges the trial court’s findings concerning the no-knock provision, arguing that the averments in the affidavit were sufficient to justify the no-knock entry and that even if they were not, the evidence should not have been suppressed for other reasons.

When we review the grant or denial of a motion to suppress, we apply the well-established principles that the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of the law to undisputed facts is subject to de novo review. However, in cases of this type, we also keep in mind that a magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court. State v. Palmer, 285 Ga. 75, 78 (673 SE2d 237) (2009); State v. Barnett, 314 Ga. App. 17, 18 (722 SE2d 865) (2012).

In reviewing whether a no-knock provision was properly included in a warrant, we start with OCGA § 17-5-27, which provides that police must make a good faith attempt to verbally announce their authority and purpose before entering a building to execute a search warrant. But where the State demonstrates a reasonable suspicion that knocking and announcing the officers’ presence would be dangerous or futile under the particular circumstances, or that it would hinder the effective investigation of the crime by, for example, allowing the destruction of evidence, a no-knock entry may be authorized. State v. Cash, 316 Ga. App. 324, 326 (728 SE2d 918) (2012). “Nonetheless, the standard for establishing the reasonable suspicion necessary to justify a no-knock entry, as opposed to the standard for establishing probable cause, is not high.” (Citation and punctuation omitted.) Braun v. State, 324 Ga. App. 242, 243 (1) (747 SE2d 872) (2013). Importantly here,

[t]he staleness of specific evidence supplied is a factor to be considered by the trial court; the exact date is not the focus of the inquiry, but rather whether factual statements in the affidavit are sufficient to create a reasonable belief that the information offered in the affidavit will be present at the time the warrant is executed.

Barnett, 314 Ga. App. at 19. With these tenets in mind, we turn to the State’s arguments on appeal.

1. (a) The State first argues that the magistrate was authorized to reasonably conclude that a no-knock intrusion was warranted because evidence showing the existence of co-conspirators in a large-scale drug operation, such as financial papers, electronic equipment, computers and cell phones, could have been easily destroyed if officers executing the warrant had announced their presence before entering the residence. This contention is unavailing for several reasons. Most significantly, the State did not make this argument before the trial court and thus has waived the right to make this assertion on appeal. State v. McCarthy, 288 Ga. App. 426, 428-429 (2) (654 SE2d 239) (2007).

And, in any event, this argument fails on the merits. The affidavit merely contained a generalized statement that unspecified evidence might be destroyed if the police announced their presence before entering, and it does not appear that the officer who presented the affidavit pointed to any specific items or data that might be destroyed if the no-knock intrusion was not allowed. Thus, the magistrate was not provided with underlying details that would have allowed him to evaluate whether these conclusions were based on specific facts or whether they were merely boilerplate based on speculation and presumptions. Willoughby v. State, 315 Ga. App. 401, 404 (727 SE2d 194) (2012). See Barnett, 314 Ga. App. at 18 (“[A] no-knock provision is permissible only when based on a neutral evaluation of each case’s particular facts and circumstances, not on blanket provisions based on generalized experience.”); Braun, 324 Ga. App. at 243 (“Blanket provisions based on the generalized experience of the officer seeking the warrant do not authorize no-knock provisions. An affidavit based on the general ease of destroying drug evidence and the officer’s experience is also insufficient, as is the mere fact that the warrant is being issued in a felony drug investigation.”) (citations omitted). The generalized statement contained in the affidavit was insufficient to authorize a no-knock entry, and, accordingly, the State’s first argument provides no basis for reversal.

(b) The State also argues that the request for the no-knock entry was justified based on the officers’ reasonable suspicion that knocking and announcing their presence could expose them to undue harm at the hands of dangerous drug dealers. The State is correct that a no-knock provision in a warrant is sufficiently supported “if the information supplied by affidavit and sworn testimony would lead to the reasonable conclusion that the officers could be harmed if they announced their authority and purpose.” Kimble v. State, 301 Ga. App. 237, 244-245 (5) (687 SE2d 242) (2009). Braun, 324 Ga. App. at 244 (1) (b). But the only recitation in the affidavit concerning weapons on the premises was based on an obviously stale, unverified tip that officers received seven years earlier. There was no indication that weapons had been observed on the premises since that time, including no evidence that weapons had been observed by officers conducting surveillance of the premises or that Martin had observed weapons when he bought drugs on or near the premises the day the warrant was executed. Further, there was no evidence that any persons suspected to be on the premises had a previous history of violence or that they even possessed a firearm such that they might be expected to use weapons against the officers conducting the search. Thus, it appears the request for a no-knock entry was based solely on a generalized experience or belief that weapons are associated with the drug trade, and the trial court properly determined that the no-knock provision was not justified on this basis. Cash, 316 Ga. App. at 327; Barnett, 314 Ga. App. at 19; Adams v. State, 201 Ga. App. 12, 14 (3) (410 SE2d 139) (1991). Cf. Braun, 324 Ga. App. at 243-244 (1) (a) (prior arrests based on probable cause for battery and possession of a firearm formed sufficient basis to conclude defendant was a man of violence who might harm officers when they entered the home); Kimble, 301 Ga. App. at 244-245 (5) (no-knock provision appropriate because the defendant had a pending weapons charge and prior drug and theft convictions); Cook v. State of Ga., 255 Ga.App. 578, 579 (565 SE2d 896) (2002) (no-knock provision justified because accused had been convicted of battery and a prior drug offense).

2. In any event, the State contends that the trial court should have upheld the search even if the no-knock provision was unauthorized because the warrant was supported by probable cause. However, the cases cited by the State do not stand for this broad proposition. For instance, in State v. Ballew, 290 Ga. App. 751, 754 (2) (660 SE2d 732) (2008), we declined to address the viability of the no-knock provision because the officers actually announced their presence and thus they were authorized by OCGA § 17-5-27 to use force to enter a padlocked door after receiving no response. And in Adams v. State, 201 Ga. App. at 14 (3), also cited by the State, we upheld the trial court’s refusal to suppress the evidence seized during the search despite the erroneous inclusion of a no-knock provision in the warrant because the officers entered the premises based on a good faith belief that the no-knock entry was justified due to the peril created by a dangerous dog. Id. Moreover, we reject the State’s contention that a briefing with officers prior to the search in which officers were informed that there were possibly weapons in the house supported that the officers had a reasonable belief that they could be harmed when nothing in the record shows that the statements were based on anything other than the generalized belief that weapons are used in the drug trade.

Finally, the State repeatedly requests the Court to consider the results of the search to justify failing to knock and announce the officers’ entry. We take this opportunity to make it clear that in reviewing whether a no-knock provision in a warrant is justified, the focus is on the sworn testimony and evidence presented to the judge who issued the warrant. Jones v. State, 126 Ga. App. 841, 845 (192 SE2d 171) (1972) (sufficiency of the affidavit supporting a warrant must be determined at the time the warrant was issued, and any deficiency in the affidavit cannot be supplied by facts discovered during the search). Allowing the ends to justify the means would undermine the directive in OCGA § 17-5-27 that police must make a good faith effort to knock and announce their presence before executing a search warrant. Accordingly, for the reasons stated above, the trial court’s order granting Lopez-Chavez’s motion to suppress must be affirmed.

Judgment affirmed.

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

Decided February 10, 2015.

Ashley Wright, District Attorney, Joshua B. Smith, Robert T Homlar, Assistant District Attorneys, for appellant.

David R. Brunk, for appellee.

       In addition to Lopez-Chavez, Ezequiel Chavez-Segovia, Ranulfo Vladovinos-Enriquez, Huber Romero-Gonzalez a/k/a Alfredo Reyes-Valdez, and Luis Emillio Figueroa were also charged with various drug crimes based on contraband seized during the search.

       The warrant included no other additional facts to support the no-knock provision.

       The hearing was continued to allow additional evidence to he presented on the validity of the execution of the warrant, in particular whether the no-knock provision was justified.

       Martin told officers he went to White Road to buy marijuana after receiving a call from a person going by the name of Antonio Mendez, from whom he had purchased smaller amounts of marijuana at another location in the past, and that Mendez was waiting for him by the road when he got there.

       Testimony was presented at the hearing that the 2006 and 2009 callers were anonymous, and that the information the callers provided was never verified.


author: MCFADDEN, Judge.

text:
    A14A2132.
    LEWIS v. THE STATE.
    (768 SE2d 821)
   MCFADDEN, Judge.

David T. Lewis was convicted in a bench trial of false imprisonment, abuse of an elderly person, aggravated assault, and hindering a person from making an emergency call. He appeals his convictions, arguing that the trial court erred by denying his request for continuance. Lewis requested that continuance on the day of trial, after firing his fourth attorney. We find that the trial court did not err and therefore affirm Lewis’s convictions.

Lewis was indicted for the crimes on February 21, 2012. Attorney David E. Morgan III filed an entry of appearance on May 19, 2012, and filed various motions. The record contains no document regarding Morgan’s withdrawal, but on April 15, 2013, attorney J. Frank Smith, Jr., filed an entry of appearance and various motions. Lewis asked Smith to withdraw, and, on July 15, 2013, Smith filed a motion to do so. The trial court granted Smith’s motion to withdraw. Shortly thereafter, attorney Sarah Riedel entered an appearance on Lewis’s behalf and filed motions. But less than a month later, Lewis filed a pro se pleading consenting to Riedel’s withdrawal from the case. Attorney Thomas F. Jarriel then began representing Lewis.

On Monday, October 7, 2013, the trial court held a calendar call at which Lewis waived his right to a jury trial; Jarriel, Lewis’s attorney, announced that he was ready for trial; and the court set Lewis’s trial for Friday, October 11. When the case was called that Friday, Lewis indicated that he wanted to discharge Jarriel and sought a continuance. The court allowed Jarriel to withdraw but denied the request for a continuance. The bench trial proceeded with Lewis representing himself, and the trial court found him guilty.

Lewis now appeals, arguing that the trial court abused his discretion in denying his motion for continuance.

“All applications for continuances are addressed to the sound legal discretion of the court. . . .” OCGA § 17-8-22. “The defendant’s conduct is obviously relevant and is a proper consideration for the judge in the exercise of his discretion. The reason for this is to prevent the defendant from using discharge and employment of counsel as a dilatory tactic.” McConnell v. State, 263 Ga. App. 686, 687 (1) (589 SE2d 271) (2003) (citations and punctuation omitted). The sudden withdrawal of retained counsel is not “ipso facto a ground for continuance.” Huckaby v. State, 127 Ga. App. 439, 440 (1) (194 SE2d 119) (1972) (citation omitted).

Lewis argues that the trial court abused his discretion denying the continuance because the denial required Lewis to go to trial without the assistance of counsel. He concedes, however, that he “deserves some of the blame for terminating his counsel after the calendar call” and even that he waived his right to counsel, albeit implicitly. Lewis had discharged at least three attorneys, including one on the day of trial, had announced ready for trial, and sought the continuance at the commencement of the trial. He insisted that he did not want J arriel to represent him in spite of the trial court’s warnings of the dangers of proceeding without counsel. Under these circumstances,

the trial court was authorized to conclude that [Lewis] was attempting to use the discharge... of... counsel as a dilatory tactic, which was the functional equivalent of a knowing and voluntary waiver of.. . counsel. In such instances, the trial court may [deny a continuance and] proceed to trial with the defendant representing himself.

Hobson v. State, 266 Ga. 638 (2) (469 SE2d 188) (1996) (citation and punctuation omitted). See also Bryant v. State, 268 Ga. 616, 617-618 (2) (491 SE2d 320) (1997) (court did not err by denying defendant’s motion for continuance after he sought to discharge counsel during jury selection and elected to proceed pro se); Cain v. State, 310 Ga. App. 442, 444 (1) (714 SE2d 65) (2011) (trial court did not err in denying continuance and requiring defendant to proceed pro se); Massalene v. State, 224 Ga. App. 321, 322 (1) (480 SE2d 616) (1997) (trial court did not err in denying motion for continuance when defendant discharged attorney on day of trial and elected to proceed pro se); Bacon v. State, 146 Ga. App. 468 (246 SE2d 475) (1978) (if the fault in nonrepresentation lies with the defendant firing an attorney at the last minute, he will not be entitled to a continuance to prepare for trial).

Lewis argues that the trial court should have granted a continuance so that he could review evidence handed to him the day of trial. This evidence consisted of the medical records of the victim, Lewis’s mother, who had died by the time of trial. But the trial court offered Lewis time to review the victim’s medical records, which the discharged attorney, Jarriel, had handed to him at the beginning of the proceeding. Lewis does not explain how more time would have helped him.

Decided February 10, 2015.

Hames Law Firm, Adam M. Fames, for appellant.

Timothy G. Vaughn, District Attorney, Christopher C. Gordon, Assistant District Attorney, for appellee.

Lewis argues that the trial court should have granted his motion for continuance so that he could obtain witnesses. He concedes, however, that he did not make the required proffer of what those witnesses would testify about or who they were. See Knox v. State, 227 Ga. App. 447, 448 (489 SE2d 582) (1997). The fact that he proceeded pro se does not excuse his failure to make the required showing. A party “is not held to a different or more lenient standard . . . merely because he elected to proceed pro se. One who knowingly elects to represent himself assumes full responsibility for complying with the substantive and procedural requirements of the law.” Salazar v. State, 256 Ga. App. 50, 53 (4) (567 SE2d 706) (2002) (citation and punctuation omitted).

To the extent that Lewis argues that he was entitled to a continuance because he was mentally ill, he points to no record evidence supporting the assertion that he was mentally ill. In fact, the trial court found that Lewis was competent to stand trial and understood the charges against him.

Lewis has not demonstrated that the trial court erred in denying his request for a continuance. Accordingly, his convictions are affirmed.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.