author: Andrews, Presiding Judge.

text:
    A12A2545.
    EADDY v. PRECISION FRANCHISING, LLC.
    (739 SE2d 410)
   Andrews, Presiding Judge.

Rukiya Eaddy appeals from the trial court’s order awarding attorney fees to Precision Franchising, LLC (Precision), pursuant to OCGA § 9-11-68 after Eaddy rejected Precision’s pre-trial offer of settlement. For the following reasons, we affirm the award.

The underlying tort action, brought by Eaddy against Precision and other defendants, arose out of an altercation between Eaddy and the owner of a franchised automobile service business for which Precision was the franchisor. Eaddy claimed on various grounds that Precision was liable for injuries she suffered in the altercation including vicarious liability for intentional torts and negligent retention, training, and supervision. It is undisputed that, in compliance with OCGA § 9-11-68 (a), Precision made an offer to settle Eaddy’s claims for $1,000, and that Eaddy rejected the offer by failing to respond within 30 days. OCGA § 9-11-68 (c). After Eaddy rejected Precision’s offer to settle, the trial court granted summary judgment in favor of Precision on all of Eaddy’s claims.

Pursuant to OCGA § 9-11-56 (h), Eaddy appealed the grant of summary judgment to Precision to this Court while her claims against the other defendants remained pending in the trial court. Before a decision was rendered in the appeal, Eaddy moved for and was granted a withdrawal of the appeal on the basis that the case had settled, and in June 2011, this Court transmitted the remittitur to the trial court reflecting that the appeal had been withdrawn.

In July 2011, Eaddy executed a document entitled “Settlement Agreement and General Release” in which she acknowledged that the case was settled and provided a general release in favor of all the defendants, including Precision. The document recited that the release was provided in consideration for $200,000 paid to Eaddy by Central Mutual Insurance Company, the franchisee’s insurer. The document recites Eaddy’s understanding that she would not be indemnified or held harmless by the owner, franchisee, or Central Mutual for attorney fees sought by Precision in a related declaratory judgment action brought by Central Mutual in which Precision counterclaimed asserting that Central Mutual breached a duty under its policy to provide separate legal counsel to defend Precision against Eaddy’s claims. The document further recites that “[e]ach party hereto shall bear all attorney’s fees and costs arising from the litigation. . . .” Although captioned as a settlement agreement, the document was prepared only for Eaddy’s signature and was signed only by her as the releasor.

In October 2011, Central Mutual paid Precision $118,000 to settle Precision’s counterclaim for attorney fees in the declaratory judgment action. The Release and Limited Indemnity Agreement signed by Precision and Central Mutual in consideration of this payment provided that Precision did not release any claim for attorney fees against Eaddy in the present action.

After a hearing in December 2011, the trial court granted Precision’s motion for the award of attorney fees pursuant to OCGA § 9-11-68 in the amount of $28,656.37. Under OCGA § 9-11-68 (b) (1),

[i]f a defendant makes an offer of settlement which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney’s fees and expenses of litigation incurred by the defendant or on the defendant’s behalf from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.

Furthermore, under OCGA § 9-11-68 (d),

(1) The court shall order the payment of attorney’s fees and expenses of litigation upon receipt of proof that the judgment is one to which the provisions of [paragraph (1) of subsection (b)] of this Code section apply; provided, however, that if an appeal is taken from such judgment, the court shall order payment of such attorney’s fees and expenses of litigation only upon remittitur affirming such judgment.
(2) If a party is entitled to costs and fees pursuant to the provisions of this Code section, the court may determine that an offer was not made in good faith in an order setting forth the basis for such a determination. In such case, the court may disallow an award of attorney’s fees and costs.

Eaddy contends that, because she withdrew her appeal to this Court from the grant of summary judgment to Precision, the trial court was without authority to award attorney fees to Precision under OCGA § 9-11-68. Eaddy relies on language in OCGA § 9-11-68 (d) (1) providing that “if an appeal is taken from such judgment, the court shall order payment of such attorney’s fees and expenses of litigation only upon remittitur affirming such judgment.” Because the remittitur from this Court did not reflect that the judgment was affirmed by a decision issued by this Court, but instead reflected that the appeal was withdrawn, Eaddy contends that the language of subsection (d) (1) precluded the award of attorney fees. Under this narrow construction of the statute, Eaddy could preclude an award under OCGA § 9-11-68 by simply taking an appeal from the judgment and then voluntarily withdrawing the appeal. The statute cannot be reasonably construed to allow this result. Rather, a “remittitur affirming such judgment” under subsection (d) (1) plainly refers not only to a remittitur from the appellate court showing that the judgment was affirmed by an appellate decision, but also a remittitur showing that, because the appeal was withdrawn, the judgment stands affirmed by operation of law. Houston County v. Harrell, 287 Ga. 162, 164 (695 SE2d 29) (2010); Aetna Casualty & Surety Co. v. Bullington, 227 Ga. 485-486 (181 SE2d 495) (1971); Hawes v. Bigbie, 123 Ga. App. 122 (179 SE2d 660) (1970). The remittitur issued after Eaddy’s voluntary withdrawal of the appeal from the trial court’s judgment was a “remittitur affirming such judgment” within the meaning of OCGA § 9-11-68 (d) (1).

We find no merit to Eaddy’s claim that the July 2011 “Settlement Agreement and General Release” precluded Precision’s claim under OCGA § 9-11-68. In consideration of $200,000 paid by the franchisee’s insurer, Eaddy executed this document which released all the defendants and finally disposed of the claims. See McClain v. George, 267 Ga. App. 851, 854 (600 SE2d 837) (2004). Eaddy claims that the language in the document stating that “[e] ach party hereto shall bear all attorney’s fees and costs arising from the litigation ...” precluded Precision’s claim under OCGA § 9-11-68. Although the document was captioned “Settlement Agreement and General Release,” and purported to release Precision from Eaddy’s claims, the document was signed only by Eaddy. Precision was not a party to the document and had already obtained summary judgment in its favor on Eaddy’s claims before Eaddy executed the document. Nothing in the document precluded Precision from making a claim under OCGA § 9-11-68.

Similarly, we find no merit in Eaddy’s claim that the October 2011 Release and Limited Indemnity Agreement signed by Precision and Central Mutual precluded Precision’s claim under OCGA § 9-11-68. By this agreement, Central Mutual paid Precision $118,000 for attorney fees incurred by Precision to defend against Eaddy’s claims. The payment was made to settle a declaratory judgment action in which Precision asserted that Central Mutual’s insurance policy covering the franchisee also required that separate legal counsel be provided to Precision to defend against Eaddy’s claims. The July 2011 settlement and release recognized that Eaddy was not indemnified or held harmless from a claim based on these attorney fees. At the hearing on its claim, Precision showed that attorney fees it sought under OCGA § 9-11-68 (b) (1) “from the date of the rejection of the offer of settlement through the entry of judgment” did not duplicate any part of the $118,000 settlement, which reimbursed Precision for other attorney fees incurred in defending against Eaddy’s claims.

Finally, Eaddy contends that the trial court erred in finding that Precision’s $1,000 settlement offer was made in good faith. The trial court did not explain the basis for its conclusion that Precision’s offer was made in good faith. Under OCGA § 9-11-68 (d) (2),

[i]f a party is entitled to costs and fees pursuant to the provisions of this Code section, the court may determine that an offer was not made in good faith in an order setting forth the basis for such a determination. In such case, the court may disallow an award of attorney’s fees and costs.

Under the provisions of OCGA § 9-11-68, where a defendant makes a settlement offer in compliance with subsection (a), and the offer is rejected, subsection (d) (1) requires the trial court to award attorney fees and litigation expenses to the defendant if the statutory requirements of subsection (b) (1) are satisfied, unless the court concludes under subsection (d) (2), “in an order setting forth the basis for such a determination,” that the offer was not made in good faith, in which case the court may disallow an award of fees and costs. Accordingly, “[b]y its terms, OCGA § 9-11-68 does not require that the trial court make written findings of fact or conclusions of law unless the court concludes that an offer was not made in good faith....” Cohen v. The Alfred & Adele Davis Academy, 310 Ga. App. 761, 764 (714 SE2d 350) (2011).

Eaddy argues that Precision’s $1,000 offer was far below her actual damages and “nowhere near [Precision’s] potential liability had the case proceeded to a jury.” Of course, Eaddy’s claims against Precision never proceeded to a jury because the trial court, after considering the facts in the record developed by Precision’s discovery and the applicable law, determined as a matter of law that Eaddy had no claim against Precision and granted summary judgment in favor of Precision. Eaddy appealed that judgment but then withdrew the appeal.

We conclude that the trial court’s finding that Precision’s offer of settlement was made in good faith and the award of attorney fees under OCGA § 9-11-68 was supported by the evidence and was not an abuse of discretion. Great West Cas. Co. v. Bloomfield, 313 Ga. App. 180, 183 (721 SE2d 173) (2011); Cohen, 310 Ga. App. at 763. Although the trial court’s award was based in part on different grounds, we affirm under the right for any reason rule. City of Gainesville v. Dodd, 275 Ga. 834 (573 SE2d 369) (2002).

Decided March 5, 2013

Reconsideration denied March 22, 2013

Thomas, Kennedy, Sampson & Tompkins, Thomas G. Sampson II, for appellant.

Lokey, Mobley & Doyle, G. Melton Mobley, DawnN. Pettigrew, for appellee.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.

       Although Precision Franchising, LLC, was added to the underlying suit by the name Precision Tune Auto Care, Inc. d/b/a Precision Franchising, LLC, the parties agree that Precision Franchising, LLC, is the party at issue in this appeal.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A12A1804, A12A1806, A12A1807.
    WCI PROPERTIES, INC. et al. v. COMMUNITY & SOUTHERN BANK (three cases).
    (740 SE2d 686)
   Branch, Judge.

On appeal from a trial court’s confirmation of a series of foreclosure sales, the debtor and appellant WCI Properties, Inc., argues that the trial court erred when it denied WCI’s motions for a hearing about appellee’s use of expert opinion testimony in a civil action under former OCGA § 24-9-67.1 as to the adequacy of three real estate appraisers’ methods used to determine the value of the sold properties. WCI also asserts that the trial court erred when it confirmed the sales. We find no error and affirm.

Under former OCGA § 24-9-67.1 (b), experts qualified as such are authorized to give opinion testimony “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact in any cause of action to understand the evidence or to determine a fact in issue,” and if “(1) [t]he testimony is based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial; (2) [t]he testimony is the product of reliable principles and methods; and (3) [t]he witness has applied the principles and methods reliably to the facts of the case.” Id.

Subsection (f) of the same statute provided:

It is the intent of the legislature that, in all civil cases, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states. Therefore, in interpreting and applying this Code section, the courts of this state may draw from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 [(113 SC 2786,125 LE2d 469)] (1993); Gen. Electric Co. v. Joiner, 522 U.S. 136 [(118 SC 512, 139 LE2d 508)] (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 [(119 SC 1167,143LE2d238)] (1999); and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.

Former OCGA § 24-9-67.1 (f). When a trial court conducts a hearing under former OCGA § 24-9-67.1, then, its task is to determine whether scientific or other expert testimony is “not only relevant, but reliable.” Daubert, supra at 589 (II) (B); Kumho, supra at 147 (II) (A) (applying Daubert to “all expert testimony”). Finally, questions concerning the admissibility of expert opinion “generally are committed to the sound discretion of the trial courts, and questions of the admissibility of expert opinions under [former] OCGA § 24-9-67.1 are no different.” (Citations omitted.) An v. Active Pest Control South, 313 Ga. App. 110, 115 (720 SE2d 222) (2011).

Whether an expert opinion ought to be admitted under [former] OCGA § 24-9-67.1 is a question that is especially fit for resolution by a trial court because it requires a consideration of the facts and data upon which the opinion is based, whether the opinion is a product of “reliable principles and methods,” and whether the opinion was reached by a reliable application of those principles and methods to the facts of the case. See [former] OCGA § 24-9-67.1 (b).

Id.

The facts underlying these appeals are not in dispute. Between late 2007 and early 2009, Gilmer County Bank made a series of loans to WCI, a real estate development company owned by Robert Worley. The loans, which amounted to more than $5 million, were secured by a number of real estate parcels, including subdivision lots, finished and unfinished homes, and undeveloped acreage. In March 2010, Gilmer County Bank was taken over by the FDIC, which transferred that bank’s assets to creditor and appellee Community & Southern Bank (C&S). After WCI defaulted, C&S foreclosed on the various real estate parcels, which were sold in 11 separate transactions on April 5,2011. C&S then petitioned the Gilmer County trial court to confirm the results of all 11 sales.

At the outset of the November 2011 confirmation hearing, WCI moved for a hearing to exclude three appraisers’ testimony offered by C&S on the ground that former OCGA § 24-9-67.1 barred appraisals based only on foreclosure and other distressed sales. After delaying a ruling until after hearing testimony concerning the appraisers’ qualifications, which were not in dispute, the trial court admitted their written appraisals of the sold properties over WCI’s objection.

The two parcels giving rise to Case No. A12A1804 sold at foreclosure for $116,000 and $99,000 respectively, or precisely the values submitted by the first appraiser a few weeks earlier. The first appraiser’s report stated that she had used a sales-comparison rather than a cost approach in valuing the two parcels because a cost approach did not take account of “the effect of foreclosures in this market area,” which had “driven down values.”

The six single-family houses giving rise to Case No. A12A1806 sold at foreclosure at prices within the range of values previously submitted by the second appraiser: $62,500 to $182,500. The second appraiser testified that he used a sales-comparison rather than a cost approach because the “deferred maintenance and resulting external obsolescence” associated with such properties made the latter method defective as a value indicator for them. The second appraiser also noted that volatility in the capital and real estate markets made it “difficult to predict what may happen to real property values over time.”

The third appraiser valued the 32 subdivision lots at issue in Case No. A12A1807 collectively at $270,000. The lots sold in two bundles for $160,312.50 and $109,687.50 respectively, the exact amount of the lump appraisal. The third appraiser used a bulk sales-comparison approach in reaching his valuation of the property, and explained at the confirmation hearing that bulk-sales analysis considered investor rather than consumer interest in the properties.

In three final orders confirming the eleven sales, the trial court noted that each of the properties sold on April 5, 2011 at “true market value.” These appeals followed.

1. WCI first argues that the trial court erred both when it delayed ruling on the motion to exclude the appraisers’ reports until after hearing testimony as to their qualifications and when it denied the motion. These contentions lack merit.

As an initial matter, because the trial court was sitting as the trier of fact in the confirmation proceeding, it did not abuse its discretion by postponing its ruling on WCI’s motion for a Daubert hearing until after it had heard testimony concerning each expert’s qualifications as such.

As for WCI’s argument that the trial court erred in denying its motion for a Daubert hearing, it is similarly without merit in the unique context of a confirmation proceeding. OCGA § 44-14-161 (b) provides that “[t]he court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.” The confirmation statute “is in derogation of common law and must be strictly construed.” (Citation and punctuation omitted.) 129 Acres, Inc. v. Atlanta Business Bank, 311 Ga. App. 462, 463 (716 SE2d 536) (2011).

Aparty seeking to confirm a nonjudicial foreclosure sale is under no obligation to present an expert appraisal of the property. McCain v. Galloway, 267 Ga. App. 505, 507 (2) (600 SE2d449) (2004). “‘Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer ... but may testify as to its value if he has [had] an opportunity for forming [an] opinion.’ ” Id. at 507-508 (2), quoting former OCGA § 24-9-66. Of course, the opinions of experts as to the true market value of property are admissible, Jotin Realty Co. v. Dept. of Transp., 174 Ga. App. 809, 811 (1) (331 SE2d 605) (1985), and provide sufficient evidence of value to support a trial court’s order of confirmation. Daniels Mortuary & Crematory v. Business Loan Center, 270 Ga. App. 875, 876 (1) (608 SE2d 545) (2004).

As this Court has recently held, moreover, a court sitting as the trier of fact in a confirmation hearing is not required to subject expert testimony as to value to a Daubert hearing. Village at Lake Lanier v. State Bank & Trust Co., 314 Ga. App. 498, 501-502 (2) (b) (724 SE2d 806) (2012); Blue Marlin Dev. v. Branch Banking & Trust Co., 302 Ga. App. 120, 122-123 (2) (690 SE2d 252) (2010) (appraiser’s testimony as to value was properly admitted without a showing that he was competent to testify under former OCGA § 24-9-67.1).

It is undisputed that all three appraisers testifying at the confirmation hearing were certified as such in Georgia and had extensive experience in the valuation of property, and all three submitted appraisals that were subject to cross-examination. Moreover, “[t]he Legislature intended confirmation to be a speedy process,” Alliance Partners, supra at 515 (2), rather than a typical civil proceeding. For these reasons, the trial court did not abuse its discretion by not holding a Daubert hearing as to the appraisers appearing at this confirmation proceeding. Village at Lake Lanier, supra at 502 (2) (b) (trial court did not abuse its discretion in refusing to hold a Daubert hearing as to appraiser’s credentials in a confirmation proceeding; any dispute went to the weight and credibility of the appraiser’s testimony rather than its admissibility); Blue Marlin, supra at 123 (2). Compare An, supra at 116-117 (vacating a grant of summary judgment to defendant exterminator in plaintiff homeowner’s action for professional negligence and breach of contract when the trial court granted the motion without disposing of a pending motion for a Daubert hearing concerning expert testimony as to the date termites had damaged the home).

Decided March 22, 2013

Clifford S. Lancey, for appellants.

2. As we have pointed out in Division 1, an expert’s opinion as to a property’s fair market value provides a sufficient evidentiary basis for a trial court’s order of confirmation. Daniels Mortuary, supra at 876 (1).

In a confirmation of a foreclosure sale, the trial court sits as the trier of fact, and its findings of fact and conclusions of law have the effect of a jury verdict. We do not determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court’s judgment. It follows from these premises that we will not overturn a trial court’s decision regarding confirmation of a foreclosure sale if there is any evidence to support the decision.

(Citations and punctuation omitted.) RBC Real Estate Finance v. Winmark Homes, 318 Ga. App. 507, 508 (736 SE2d 117) (2012). WCI’s questions as to the means by which the appraisers reached their conclusions were raised on cross-examination below, and went to the weight rather than the admissibility of that evidence as to value. Because the trial court had some evidence on which to base its conclusion that the properties sold at true market value, we have no basis for overturning its order confirming the foreclosure sales. Id.; Blue Marlin, supra at 123-124 (3).

Judgments affirmed.

Miller, P. J., and Ray, J., concur.

Stites & Harbison, Melinda Agee, for appellee.

       The statute has been recodified, with changes, as OCGA § 24-7-702 of the new Evidence Code (effective January 1, 2013).

       WCI’s contention that the court did not rule on the motion is thus belied by the record.

       According to the evidence introduced at the confirmation hearing, a sales-comparison approach uses sales of comparable properties, as adjusted for differences according to price per square foot or per unit and “applied to the physical units of comparison derived from the comparable sale.” A cost approach is “based upon the proposition that the informed purchaser would pay no more for the subject than the cost to produce a substitute property with equivalent utility,” but is most applicable “when the property being appraised involves relatively new improvements that represent the highest and best use for the land, or when it is improved with relatively unique or specialized improvements for which there exist few sales or leases of comparable properties.”


author: ANDREWS, Presiding Judge.

text:
    A12A1875.
    PARHAM v. THE STATE.
    (739 SE2d 135)
   ANDREWS, Presiding Judge.

Charles Frank Parham appeals his conviction for felony shoplifting. He contends the trial court erred by denying his motion for a directed verdict and by considering in aggravation of punishment his earlier guilty plea that was entered without benefit of counsel. Parham also contends the verdict was strongly against the weight of the evidence. Although we find no error in the denial of the motions attacking the verdict, we must reverse the sentence imposed because the trial court considered a prior conviction which was entered without the benefit of counsel.

1. When an appellate court reviews the sufficiency of the evidence, “the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Deem v. State, 273 Ga. 806, 806-807 (1) (546 SE2d 499) (2001). We review the evidence in the light most favorable to the verdict, giving deference to the jury’s determination of the proper weight and credibility to be given. Id. at 807 (1). It is the function of the jury, not an appellate court, to assess the credibility of the witnesses, to resolve any conflicting evidence, and to determine the facts. Butler v. State, 273 Ga. 380, 382 (541 SE2d 653) (2001). If competent evidence exists, though contradicted, to support the facts necessary to prove the State’s case, we will not reverse the jury’s verdict. Childress v. State, 251 Ga. App. 873, 876 (2) (554 SE2d 818) (2001).

Viewed in this manner, the evidence shows that Parham was observed by a loss prevention clerk “shopping off [a] receipt,” i.e., selecting items from the store’s shelves that are on a receipt. According to the clerk, Parham told her he found the receipt outside the store.

With the aid of the receipt, he selected three items from the shelves, and then took them to the front of the store where he secured return stickers from a store greeter for the items that he had just taken from the shelves. Parham then went to customer service where he obtained refunds for the items he selected from the store. When he attempted to leave the store, Parham was stopped by the loss prevention officer who asked him to accompany her to the loss prevention office. While in the office Parham admitted to shoplifting because he needed cash.

2. Parham contends the trial court erred by denying his motion for a directed verdict of acquittal. He contends that without the testimony of the store’s greeter and the customer service clerk, the evidence was insufficient to show Parham’s intent when he took possession of the merchandise.

A motion for a directed verdict of acquittal should only be granted when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); Taylor v. State, 252 Ga. 125 (312 SE2d 311) (1984). On appeal, a reviewing court may consider all the evidence in the case, Bethay v. State, 235 Ga. 371, 375 (219 SE2d 743) (1975), and must reviewthe evidence in the light most favorable to the verdict. Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436) (1984). Further,

[i]n light of Jackson v. Virginia,... the test established there is the proper test ... to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.

Humphrey v. State, 252 Ga. at 527.

Review of the evidence in this manner reveals ample evidence from which any rational trier of fact could find, beyond a reasonable doubt, that Parham was guilty of shoplifting. Jackson v. Virginia, supra. The testimony of the loss prevention clerk alone was sufficient to establish all the elements of shoplifting. Gilliam v. State, 237 Ga. App. 476, 478 (1) (517 SE2d 348) (1999). Therefore, the trial court did not err by denying Parham’s motion for a directed verdict of acquittal.

3. Parham further contends the trial court erred by denying his motion for new trial because the verdict was against the weight of the evidence. See OCGA § 5-5-21 (“The presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.”).

“Of course, such an argument may only be made to a trial court in a motion for new trial, not to an appellate court on appeal. We do not have the discretion to grant a new trial on these grounds.” (Citations, punctuation and footnotes omitted.) Hughes v. State, 297 Ga. App. 581, 582 (1) (677 SE2d 674) (2009). See also Drake v. State, 241 Ga. 583, 585 (1) (247 SE2d 57) (1978).

Lewis v. State, 304 Ga. App. 831, 833 (1) (698 SE2d 365) (2010). Accordingly, this enumeration of error is also without merit.

As we have affirmed the trial court on the enumerations of error attacking the verdict, Parham’s conviction is affirmed.

4. Relying on Thompson v. State, 276 Ga. 701 (583 SE2d 14) (2003), Parham contends the trial court erred by considering his guilty plea, which was taken without the benefit of counsel. The record shows that after Parham had been found guilty by the jury, the prosecutor advised the court that the State had three additional certified copies of convictions. After reviewing the convictions, Par-ham’s counsel objected to the court’s consideration of one of the pleas because the plea was entered without counsel. The prosecutor then asked whether the court was “inclined to consider the plea that was taken without the benefit of counsel[.]” The court responded that it would. The court then, after considering the prior convictions, sentenced Parham to ten years with the last five years to be served on probation.

The State relies upon Hampton v. State, 289 Ga. 621, 627 (6) (713 SE2d 851) (2011), for the proposition that when the record does not show that the trial court relied upon the uncounseled pleas in determining the length of a sentence and the sentence is within the legal range, appellate courts cannot assume that the trial court relied upon the uncounseled pleas because trial courts are presumed to consider only relevant, legal evidence.

In this case, however, we know that the trial court considered the plea taken without counsel because the court said it would. Therefore, the State’s reliance on Hampton is misplaced, and the trial court erred by considering the uncounseled guilty plea.

The United States Supreme Court in Gideon v. Wainwright, 372 U. S. 335 (83 SC 792, 9 LE2d 799) [(1963)], established the rule that the right to counsel guaranteed by the Sixth Amendment was applicable to the States by virtue of the Fourteenth Amendment, making it unconstitutional to try a person for a felony in a state court unless he had counsel or had made a valid waiver of counsel. In Burgett v. Texas, 389 U. S. 109, 115 (88 SC 258, 19 LE2d 319) [(1967)], it was held: To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense ... is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right. See also United States v. Tucker, 404 U. S. 443 (92 SC 589, 30 LE2d 592) [(1972)].

Decided March 22, 2013.

Wayne L. Burnaine, for appellant.

Daniel J. Porter, District Attorney, Jennifer L. Gower, Assistant District Attorney, for appellee.

(Punctuation omitted.) Clenney v. State, 229 Ga. 561, 564 (4) (192 SE2d 907) (1972). Accordingly, Parham’s sentence must be vacated and the case remanded to the trial court for resentencing.

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

Doyle, P. J., and Boggs, J., concur.


text:
    A12A1990.
    ALLISON v. THE STATE.
    (740 SE2d 690)
   ANDREWS, Presiding Judge.

Barry K. Allison appeals following the grant of his application for discretionary review of the trial court’s order revoking his probation and ordering him to serve 15 years. According to Allison, the court erred in sentencing him on more than one felony offense under OCGA § 42-8-34.1. After reviewing the record, we affirm.

The record shows that in 2003, Allison pled guilty to four counts of aggravated assault and was sentenced to thirty years, with six to serve in jail and the balance on probation. In January 2012, Allison was charged with violating his probation by committing five new offenses over approximately eight months: three separate felony theft by taking offenses, one offense of second degree criminal damage to property, and one misdemeanor charge of theft by receiving. According to Allison, he entered an Alford plea to the charges. Based upon this plea, the trial court revoked 15 years of Allison’s probation. Allison objected to the amount, arguing that under OCGA § 42-8-34.1 (d), the court was limited to revoking the lesser of the balance of his probation or the maximum penalty for a felony offense, which in this case would be ten years for one felony theft by taking offense. See OCGA § 16-8-12 (a). The trial court then clarified its order, stating that it was revoking ten years as to the first violation for theft by taking and five years consecutive on the remaining counts. Allison appeals, arguing that nothing in OCGA § 42-8-34.1 (d) permits the court to sentence him for multiple crimes in connection with probation revocation.

OCGA § 42-8-34.1 (d) provides:

If the violation of probation or suspension alleged and proven by a preponderance of the evidence or the defendant’s admission is the commission of a felony offense, the court may revoke no more than the lesser of the balance of probation or the maximum time of the sentence authorized to be imposed for the felony offense constituting the violation of the probation. . . .

Here, the statute refers to a single felony offense to be considered for purposes of determining how much of the probated sentence may be revoked. But OCGA § 1-3-1, Construction of statutes generally, provides in pertinent part:

(d) In addition to the rules for construction prescribed in subsections (a) through (c) of this Code section, the rules provided in this subsection shall govern the construction of all statutes with respect to the subjects enumerated.
(6) Number. The singular or plural number each includes the other, unless the other is expressly excluded.

This rule of construction has been used in criminal cases. See, e.g., McGee v. State, 165 Ga. App. 423, 424 (299 SE2d 573) (1983) (use of the word "people” rather than "a person” in Code Ann. § 26-401 (m) is immaterial because under Code Ann. § 102-102 (4) (now OCGA § 1-3-1 (d) (6)) the section is required to be read as providing for the singular as well as the plural).

Further, we do not believe it was the intent of the legislature to prevent the trial court from revoking cumulative portions of a lengthy term of probation consistent with multiple offenses committed by the probationer. Therefore, there being no authority to the contrary, we conclude that the trial court did not err in using multiple offenses when determining the amount of Allison’s probation to be revoked.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.

Decided March 22, 2013.

Minerva S. Cansino, for appellant.

Dick Donovan, District Attorney, Dana J. Norman, Assistant District Attorney, for appellee.


text:
    A12A2082.
    JONES v. THE STATE.
    (740 SE2d 655)
   Branch, Judge.

Israel Moses Jones was tried by a Chatham County jury and convicted of armed robbery, burglary, and impersonating a police officer. He now appeals from the denial of his motion for a new trial, asserting that the trial court erred in denying his motions to suppress the eyewitness identifications of him resulting from allegedly impermissibly suggestive photographic lineups and the evidence seized as the result of an illegal search. Jones further contends that the trial court erred by refusing to admit evidence that, he claims, would have supported his sole defense of mistaken identity and in denying his motion to sever his trial from that of his co-defendant and brother, Robert Jones. Finally, Jones claims that there existed a fatal variance between the indictment and the evidence that renders the evidence insufficient to sustain his conviction for armed robbery. We find no error and affirm.

On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence, and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict. Martinez v. State, 306 Ga. App. 512, 514 (702 SE2d 747) (2010). So viewed, the record shows that on the morning of May 31, 2008, a man dressed in a dark j acket and carrying a black briefcase entered a local grocery store known as Chu’s Market. The man spoke with the owner of the market, Chu Ping, identified himself as “Detective John,” and told Mr. Chu that he needed to speak with the owner in the store’s office. Mr. Chu obliged, but once the men were in the office, “Detective John” removed a gun from his briefcase and robbed Mr. Chu, taking all of the money in both the store’s safe and Mr. Chu’s wallet. After the robber left, Mr. Chu retrieved his own gun and ran outside. There he saw a car parked in front of his store, with the robber standing at its passenger door and a second man standing at the driver’s door. Mr. Chu fired his gun toward the car, and both men fled on foot. Police later showed Mr. Chu a photographic lineup from which he identified Jones as the man who robbed him.

The morning of the robbery, Jannie and Alfred Smith were at their home, which is located a short distance from Chu’s Market. Within a few minutes after the robbery, both Mr. and Mrs. Smith saw two men approaching their house by way of an open lot that adjoined their yard. Mrs. Smith testified that she thought the men were police officers, because as they walked toward the house she saw one of them wearing a badge.

The men entered onto the Smiths’ property and asked for a ride “away from there” and for the use of a telephone. After the Smiths refused both requests, one of the men forced his way inside their house. The man remained in the house briefly but stepped outside when he heard sirens approaching, and Mr. Smith was able to lock the door behind him. Mrs. Smith later saw this same man kneeling near a small storage shed in her back yard. Approximately three weeks after this incident, police showed Mr. Smith a photographic lineup from which he identified Jones as the man who had forced his way into the Smith residence.

Police officers responding to the Smith home searched the Smiths’ back yard as well as the adjoining lot through which the Smiths had seen the men approaching. In the Smiths’ back yard, police found a black briefcase near the storage shed and a dark jacket in an area immediately across from the shed; neither of these items belonged to the Smiths. Police also recovered a small black gun from the adjoining lot. At trial, Mr. Chu identified the black briefcase, the dark jacket, and the gun as looking like those that were worn or used by Jones during the robbery.

Additionally, one officer who participated in the search testified that he spotted a black badge holder in the adjoining lot. The officer was unaware, however, that one of the robbery suspects had been posing as a police officer, and he therefore attached no significance to the badge holder. Instead, he assumed that the badge holder belonged to and/or had been dropped by one of the other officers at the scene. After learning that it might be related to the robbery, the officer returned to the lot and attempted to locate the badge holder, but he could not find it.

The investigating officers obtained a search warrant for the white Ford Explorer parked in front of the store that Mr. Chu had identified as possibly belonging to the robbers. During the execution of that warrant, police discovered a large-screen television that had been stolen the previous day during a burglary at a local rental center. Using surveillance videos from the rental center, police later arrested a third party — i.e., a party that was neither Jones nor his brother — for the burglary. Officers also found a wallet and driver’s license belonging to Robert Jones in the Explorer, as well as a pay stub belonging to Shamira Hamilton.

Police interviewed Ms. Hamilton, who told them that she was romantically involved with Robert Jones and that he sometimes stayed at her apartment. Following this interview, police obtained a search warrant for Ms. Hamilton’s apartment, which they executed during the early morning hours of June 1, 2008. Upon entering the apartment, police found Robert Jones sitting on the sofa and a set of Ford car keys located a short distance from him. It was later determined that these keys belonged to the Ford Explorer found parked outside of Chu’s Market.

Also in Ms. Hamilton’s apartment police found Israel Jones’s partially torn social security card lying on a hallway floor, a neck chain that a police officer identified as being the kind used with a badge holder, and a gym bag. The gym bag was sitting on the floor in one of the apartment’s bedrooms, and it was open. Near the top of the open gym bag was an empty plastic bag with a label on it; the label indicated that the bag had originally held a badge holder. Inside the gym bag, police also found a copy of the spring 2008 issue of Quartermaster magazine addressed to Israel Jones at his home in River dale. Based on this evidence, police arrested Jones, and he was subsequently charged with the crimes at issue.

1. Prior to trial, Jones moved to suppress the identifications of him made by Mr. Chu and Mr. Smith, arguing that the photographic lineups used by police were impermissibly suggestive. The trial court denied that motion. On appeal Jones contends that this ruling was error. We disagree.

This Court will not set aside a conviction based on a pretrial identification by photograph and a subsequent identification at trial unless the record shows that the “photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Citation, punctuation and footnote omitted.) Pinkins v. State, 300 Ga. App. 17-18 (684 SE2d 275) (2009). “An identification procedure is impermissibly suggestive when it leads the witness to an all but inevitable identification of the defendant as the perpetrator, or is the equivalent of the authorities telling the witness, ‘this is our suspect.’ ” (Citation and punctuation omitted.) Davis v. State, 286 Ga. 74, 76 (2) (a) (686 SE2d 249) (2009). Additionally, “[t]he taint which renders an identification procedure impermissibly suggestive must come from the method used in the identification procedure.” (Citation and punctuation omitted.) Id.

In his brief, Jones does not contend that there was anything inherently suggestive in either the photographs used in the lineups or in the way in which police presented those photographs. Rather, as best we can tell, he is contending that the identification procedure was impermissibly suggestive because: (i) before being shown the photographic lineup containing six pictures, police showed Mr. Smith a single picture of Israel Jones; and (ii) when Mr. Chu was unable to identify either of the perpetrators from the first photographic lineup they showed him, police offered him a “second bite at the apple” by showing him a second photographic lineup, from which he identified Jones. We find no merit in either of these contentions, however, as they are based on factual misrepresentations.

The record shows that on the day of the incidents in question, police mistakenly showed Mr. Smith a single picture of Robert Jones that was not part of a photographic lineup. There is no evidence, however, that police ever showed Mr. Smith a picture of Israel Jones by itself. Rather, the record reflects that the only photograph police showed Mr. Smith of Israel Jones was the one contained in the photographic lineup. The record also reflects that while Mr. Chu was shown two separate photographic lineups, he was not given two opportunities to identify Jones, because Jones’s picture was not included in the first lineup. The first photographic lineup Mr. Chu viewed contained a picture of Robert, but not Israel Jones. And Mr. Chu identified one of the men in that first lineup (other than Robert) as someone who may have possibly been the second man involved in the robbery; Mr. Chu stated definitively, however, that none of the men in that lineup was the man who robbed him. The second photographic lineup did contain a picture of Jones, and Mr. Chu identified that picture as being of the man who robbed his store.

Given that there was nothing inherently suggestive or otherwise improper about the photographic lineups, the trial court did not err in admitting the eyewitness identification of Jones.

2. Jones also argues that the trial court erred in denying his motion to suppress the evidence against him that police obtained during their search of Ms. Hamilton’s apartment, because the seizure of his social security card, the magazine addressed to him, and the plastic bag exceeded the scope of the search warrant. Jones, however, lacks standing to challenge the search and seizure at issue.

“Because Fourth Amendment rights are personal, a defendant may move to suppress evidence obtained through an illegal search and seizure only when his own rights were violated.” (Citation, punctuation and footnote omitted.) Smith v. State, 302 Ga. App. 128, 134 (2) (a) (690 SE2d 449) (2010). As a general rule, therefore, “[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” (Punctuation and footnote omitted.) State v. Carter, 305 Ga. App. 814, 816 (1) (701 SE2d 209) (2010). Thus, to challenge a search and seizure, “a defendant must show he had an expectation of privacy in the premises searched” or in the property seized. (Citation, punctuation and footnote omitted.) Smith, 302 Ga. App. at 134(2) (a). And “[t]he burdenis ontheone claiming a violation of Fourth Amendment rights to demonstrate that [he has] standing to contest such violation, i.e., that [he has] a legitimate expectation of privacy in the premises searched” or the property seized. (Punctuation and footnote omitted.) Carter, 305 Ga. App. at 816 (1). Jones has failed to meet this burden with respect to either Ms. Hamilton’s apartment or the gym bag and its contents.

As Jones correctly asserts, overnight guests in a private residence may have a legitimate expectation of privacy in that residence. See Smith v. State, 284 Ga. 17, 21 (3) (663 SE2d 142) (2008). Aperson who is “merely present with the consent of the householder,” however, has no such expectation. (Citation omitted.) Id. In this case, there is some evidence supporting an inference that Jones may have been a casual visitor to Ms. Hamilton’s home at some recent time. There is no evidence, however, supporting a conclusion that Jones ever spent the night in that apartment. Notably, there was no evidence that police found clothing, toiletries, or other personal effects belonging to Jones. And while Ms. Hamilton testified that Robert Jones sometimes stayed overnight, she did not mention Israel Jones. Ms. Hamilton further testified that when she left for work early on the morning of the robbery, neither Jones’s social security card nor the magazine addressed to him were in her apartment. Additionally, even though officers executed the search warrant in the early morning hours of June 1, 2008, the day after the robbery, Jones was not present in the apartment at that time. Accordingly, Jones has failed to show that he was anything more than a transient visitor to the apartment and thus cannot demonstrate that he had a reasonable expectation of privacy in the apartment. He is therefore without standing to challenge the search of that residence. See Carter, 305 Ga. App. at 816-817 (1).

Jones next argues that even if he lacks standing to challenge the search of the apartment, he does have standing to contest the seizure of the gym bag and its contents. Jones is correct that “[a] visitor has a substantial interest in the privacy of all his possessions, wherever located and personal belongings brought by their owner on a visit to a friend’s house retain their constitutional protection until their owner meaningfully abdicates control or responsibility.” (Citations and punctuation omitted.) State v. McCarthy, 288 Ga. App. 426, 428 (2) (654 SE2d 239) (2007). Here, however, Jones did not testify and claim ownership of the bag, either at the motion to suppress hearing or at the hearing on his motion for a new trial. Nor was there any evidence showing that Jones admitted to the police that he owned the bag; rather, Jones’s sole defense was that he was in Atlanta at the time the robbery and related crimes occurred. Without an affirmative assertion of a possessory interest in the gym bag, Jones lacks standing to challenge the seizure of that bag and its contents. See Green v. State, 239 Ga. App. 617, 619 (3) (521 SE2d 441) (1999) (defendant lacked standing to challenge seizure of cloth bag or its contents where “he... never asserted a possessory or proprietary interest in” the bag) (citations omitted); Lewis v. State, 233 Ga. App. 560,562 (2) (504 SE2d 732) (1998) (a party lacks standing to challenge a police officer’s seizure of property where the party fails to assert a “possessory interest... in the property seized”) (citations omitted). Given Jones’s lack of standing to challenge the search and seizure at issue, the trial court did not err in denying his motion to suppress.

3. Prior to trial, the court granted Robert’s motion in limine to exclude any mention of the stolen television found during the police search of his car. Jones subsequently objected to this ruling, arguing that it deprived him of his sole defense of mistaken identity. Specifically, Jones argued that the evidence of the burglary and the presence of the television in Robert’s car supported the inference that it was the rental center burglar, rather than Jones, who was with Robert on the day of the robbery and who, in fact, committed the crimes at issue. The trial court held a hearing on Jones’s request that it reconsider its ruling on Robert Jones’s motion in limine, and heard evidence regarding the burglary and Jones’s argument about how this evidence was necessary to support his defense of mistaken identity. Following that hearing, the trial court reaffirmed its grant of the motion in limine. Jones challenges this ruling on appeal. We find no error.

As a general rule, a defendant may introduce evidence which tends to show that another person committed the crime with which he is charged. See Klinect v. State, 269 Ga. 570, 573 (3) (501 SE2d 810) (1998). Such evidence, however, must be otherwise admissible, and its probative value must not be outweighed by the likelihood that it will cause undue delay, prejudice, or confusion. Pace v. State, 271 Ga. 829, 838 (18) (524 SE2d 490) (1999); Croom v. State, 217 Ga. App. 596, 598 (3) (458 SE2d 679) (1995). Specifically, this evidence must be “relevant to the accused’s trial[,]” show “facts inconsistent with [the accused’s] own guilt [,] and raise a reasonable inference or presumption as to his own innocence.” (Citation and punctuation omitted.) Croom, 217 Ga. App. at 598 (3). Such evidence must also “directly connect[ ]” the third party with the crime at issue and point clearly to the third party’s guilt. Id. “Evidence which can have no other effect than to cast a bare suspicion on another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible.” (Citation and punctuation omitted.) Id.

Applying the foregoing legal principles, we find that the evidence at issue was properly excluded. The fact that a third party committed an unrelated burglary in some other part of town more than 24 hours before the commission of the crimes at issue does not raise an inference that Jones is innocent of those crimes. See Scott v. State, 281 Ga. 373, 377 (3) (637 SE2d 652) (2006) (“[a] reasonable inference of a defendant’s innocence is raised by evidence that renders the desired inference more probable than the inference would be without the evidence”) (citation and punctuation omitted). Nor does the fact that the stolen television was found in Robert’s car “directly connect” the burglar with the commission of the crimes at issue. Instead, the only inference raised by this evidence is that Robert was in possession of stolen property or that he and Jones were in joint possession of that property. Accordingly, the trial court did not err in refusing to admit this evidence. See Klinect, supra, 269 Ga. at 573 (3) (defendant not entitled to introduce evidence that third party, whom he contended committed the murder, had a violent disposition; such evidence did not show that third party had a motive or otherwise directly connect him with the crime); Redding v. State, 239 Ga. App. 718, 719 (1) (521 SE2d 840) (1999) (where defendant contended that he had been falsely accused of crimes because he refused to cooperate with police in their investigation of a certain drug dealer, evidence that arresting officer had also previously arrested that drug dealer was properly excluded, as it “would have done nothing but cast a bare suspicion in support of [defendant’s] defense”) (citation omitted).

4. After the trial court reaffirmed its ruling on the motion in limine concerning the stolen television, Jones moved to sever his trial from Robert’s. The trial court denied that motion, and Jones challenges this ruling on appeal, arguing that the severance would have allowed him to present the evidence related to the television. For the reasons explained in Division 3, however, the evidence at issue would not have been admissible even if Jones’s case had been severed from his brother’s. Accordingly, this claim of error is without merit. See Denny v. State, 281 Ga. 114, 115-116 (1) (636 SE2d 500) (2006); Rhodes v. State, 279 Ga. 587, 589-590 (3) (619 SE2d 659) (2005).

5. The indictment in this case charged Jones with armed robbery “by use of a handgun, the exact description of which is unknown....” At trial, there was testimony that although the gun discovered by police resembled a handgun that shoots bullets, it was, in fact, a pellet gun. Jones contends that this evidence shows a fatal variance between the indictment and the evidence and that the evidence is therefore insufficient to sustain his conviction for armed robbery as charged. We disagree.

It is well established that “[n]ot all differences between an indictment and proof constitute fatal variances.” (Citation, punctuation and footnote omitted.) Lawson v. State, 278 Ga. App. 852, 853 (2) (630 SE2d 131) (2006). Rather, a variance will require reversal of a conviction only where, as a result of the variance, either: (i) the accused was not definitely informed of the charges against him, so that he was unable to prepare and present a defense; or (ii) there exists the possibility that the accused could be prosecuted a second time for the same offense. See Battles v. State, 262 Ga. 415, 417 (5) (420 SE2d 303) (1992). “If a variance does not present these dangers, it is not fatal.” (Citation, punctuation and footnote omitted.) Lawson, 278 Ga. App. at 853 (2).

Here, the indictment charged Jones with armed robbery by use of a handgun, and the evidence showed that the gun at issue was a small, black gun resembling a gun that shoots bullets. As the manner in which the weapon would be used would be the same for either gun, and as both can produce similar injuries, no fatal variance exists. See Lawson, 278 Ga. App. at 854 (2) (no fatal variance where indictment charged aggravated assault by use of a knife and evidence showed weapon was a box cutter; both items were “bladed weapons capable of producing the same type of‘slashing’ injury”). Further, Jones has not argued that he was not sufficiently informed of the charges against him so that he could prepare a defense, or that he believed he could be prosecuted a second time for the armed robbery of Chu’s Market. Accordingly, any variance between the indictment and the proof offered at trial was not fatal. See Jackson v. State, 158 Ga. App. 702, 702 (3) (282 SE2d 181) (1981) (no fatal variance where “the evidence showed that the robbery was committed with a shotgun, whereas the indictment alleged that it had been committed with a pistol”) (citation omitted). See also Wilson v. State, 291 Ga. App. 69,72 (1) (b) (661 SE2d 221) (2008) (“[t]he fact that the evidence revealed that the stolen weapon was a .45 caliber pistol while the indictment described it as a .25 caliber handgun did not create a fatal variance”).

Decided March 22, 2013

Laura G. Hastay, for appellant.

Larry Chisolm, District Attorney, Julayaun M. Waters, Reginald C. Martin, Meg E. Heap, Assistant District Attorneys, for appellee.

Judgment affirmed.

Miller, P. J., and Ray, J., concur.

       OCGA § 16-8-41.

       OCGA § 16-7-1.

       OCGA § 16-10-23.

       Police also found papers in the briefcase, bearing the names of Carmalitha Meriweather and Kelvin J. Banks. Ms. Meriweather testified at trial and explained that Kelvin Banks was her son and that during 2008 he had lived “on and off” with Jones and his wife at their home in Riverdale, so he could go to school. She further explained that the documents in question would have been in Kelvin’s possession while he was living at the Jones’s home.

       A police officer testified that this magazine is usually used by members of law enforcement to order supplies related to or necessary for their jobs.

       In his brief, Jones asserts that Mr. Smith testified both at the motion to suppress hearing and at trial “that this [single-photograph] show-up [of Israel Jones] took place.” Notably, however, he fails to offer any citation to the record that supports this assertion - i.e., showing where such testimony occurred, despite the requirement that he support any claim of error with record citations. See Court of Appeals Rule 25 (a). We have found no such evidence in the record.

       Jones also states that the search warrant was facially invalid, but he offers no record citations, legal citations, or reasoned argument to support this assertion. Any claim that the warrant itself was facially invalid, therefore, has been abandoned. See Owens v. State, 258 Ga. App. 647, 650 (4) (575 SE2d 14) (2002); Court of Appeals Rule 25 (c) (2).


text:
    A12A2111.
    SHERMAN v. DEVELOPMENT AUTHORITY OF FULTON COUNTY et al.
    (740 SE2d 663)
   Branch, Judge.

This appeal arises from a bond validation proceeding in which the State of Georgia petitioned the Fulton County Superior Court for a judgment approving the issuance of certain taxable revenue bonds by the Development Authority of Fulton County (“DAFC”) and validating the bonds and various bond security documents. See OCGA § 36-62-1 et seq. John S. Sherman, a taxpayer and citizen of Fulton County, appeals from the order of the trial court validating and confirming the bonds and bond security. For the reasons explained below, we vacate the order of the trial court and remand this case for further proceedings consistent with this opinion.

The record shows that the purpose of the bonds at issue is to finance the development of a manufacturing facility in Fulton County (“the Project”) that, once completed, will be leased to Owens Corning Roofing and Asphalt, LLC (“Owens”). Thus, among other things, the petition sought to create a bond transaction leasehold estate where, in consideration for the issuance of the bonds, Owens agreed to transfer fee simple title in the Project to DAFC, and DAFC and Owens agreed to execute a lease agreement under which Owens will have the right to possession of the Project for a term of ten years, excluding any construction or installation period. At the conclusion of the lease term, Owens will have a right to acquire the Project for nominal consideration.

As part of the transaction, the Fulton County Board of Tax Assessors (the “Board”), DAFC, and Owens executed a Memorandum of Agreement (the “Memorandum”) which establishes the valuation methodology the Board will employ in assessing ad valorem taxes on the leasehold estate. Specifically, the Memorandum provides that the Board will determine the fee simple market value of the Project utilizing the income approach, and then will determine the value of Owens’s leasehold interest by utilizing a “ramp-up schedule.” The “ramp-up schedule” assumes that the value of the leasehold interest in the first year of the lease is fifty percent of the fee simple market value, and that value increases by five percent each year as the ten-year term progresses and as Owens moves closer to receiving the benefit of its reversionary interest in the Project.

The petition and complaint were filed on September 27, 2011, and a hearing or hearings on the matter occurred some time thereafter. On October 10, 2011, Sherman filed a document captioned “Objections to Bond Validation Petition, Denial of Bond Validation Petition Allegations and Plea in Abatement” and on October 11 he filed his first amendment to this pleading. In his pleadings Sherman requested, inter alia, that the trial court provide an order setting forth findings of fact and conclusions of law pursuant to OCGA § 9-11-52 (a), “including without limitation, specific factual findings regarding the evidence presented regarding the valuation of the proposed leasehold estate . . . according to the Harris factors, as required under Sherman [7] .”

On March 8, 2012, the court below entered an order validating the bond issuance. Sherman now appeals from that order, asserting that the trial court erred by failing to set forth therein findings of fact or conclusions of law sufficient to support its ultimate holdings that (i) the method used by DAFC to value the leasehold estate was valid under the requirements of Harris and Sherman I; (ii) the structure of the bond transaction did not violate OCGA § 36-62-8; (iii) the Memorandum was not ultra vires, in violation of OCGA § 36-30-3 (a); and (iv) the structure of the bond transaction did not create an unconstitutional tax exemption.

Because the facts in this case are undisputed, we conduct a de novo review of the record to determine whether the trial court committed plain legal error. Sherman v. Dev. Auth. of Fulton County, 317 Ga. App. 345, 346 (730 SE2d 113) (2012) (“Sherman IF’).

1. We first address our holding in Sherman II, because we find that its analysis applies to the current case.

Sherman II arose out of a bond validation proceeding similar to the one at issue here. As in this case, Sherman became a party to the proceeding and “requested that the trial court provide an order setting forth findings of fact and conclusions of law pursuant to OCGA § 9-11-52 (a).” 317 Ga. App. at 346. He also specifically requested that the court make “factual findings regarding the evidence presented regarding the valuation of the proposed leasehold estate according to the Harris factors, as required under Sherman I.” (Citation and punctuation omitted.) Id. at 350 (4) (a). In response to this request, the trial court issued an order containing findings of fact and conclusions of law, many of which are identical to those made here; Our Sherman II opinion held that these conclusory findings, which did not set forth the facts or analysis on which the court based those conclusions, failed to comply with OCGA § 9-11-52 (a). Id. at 352 (4) (b). The order, therefore, provided no basis for “meaningful appellate review,” and we concluded that “[b]ecause the [trial court’s order] contains ‘merely a dry recitation that certain legal requirements have been met... adequate appellate review of the trial judge’s decision making process is effectively prevented.’ ” Id. Accordingly, remand was necessary to allow the superior court to “ ‘enter a judgment setting forth requisite findings of fact and conclusions of law that will allow meaningful appellate review of the trial court’s rejection of Sherman’s arguments.’ ” (Footnote omitted.) Id.

We find the analysis of Sherman II controlling as to Sherman’s claims of error in this case. As discussed more fully below, the trial court labeled some of its holdings as “findings of fact.” Instead of being actual factual findings, however, these statements are summary conclusions that contain no hint about the evidence or analysis the court relied on to arrive at them. Similarly, the trial court’s “conclusions of law” challenged by Sherman on this appeal cite no legal authority and contain no analysis that explains them. Accordingly, these findings of fact and conclusions of law fail to satisfy the requirements of OCGA § 9-11-52 (a). See In the Interest of D. L. G., 212 Ga. App. 353 (1) (442 SE2d 11) (1994) (noting that OCGA § 9-11-52 (a) requires a trial judge to ascertain facts and to state not only the end result of that inquiry, but the process by which it was reached; holding that “a bare statement of what the court considered in reaching its conclusions is not a recitation of how those facts give support to . . . the [court’s] conclusions”) (citation and punctuation omitted); Brant v. Bazemore, 173 Ga. App. 294, 295 (1) (325 SE2d 905) (1985) (holding that an order which contains mere legal conclusions that are unsupported by specific findings of fact does not satisfy OCGA § 9-11-52 (a)). And in the absence of the facts and analysis necessary to explain the trial court’s holdings, we are unable to conduct a meaningful review of those holdings. Sherman II, 317 Ga. App. at 352 (4) (b).

2. Sherman challenges the trial court’s holding that the ramp-up valuation method set forth in the Memorandum, to be used in valuing the leasehold estate for ad valorem tax purposes, is valid and complies with the requirements of Georgia law as set forth in Sherman I and Harris. With respect to this holding, the trial court made the following “factual” findings: (i) the expert witness presented by DAFC was “qualified to testify as an expert on valuation of property and leasehold interests and forensic valuation analysis”; (ii) a second witness presented by DAFC established that “the [r]amp-[u]p method of establishing the fair market value, for ad valorem taxation purposes, of a leasehold estate created by a lease that grants a reversionary interest to the lessee in ten (10) years would be an appropriate method regardless of whether a bond transaction is involved in the lease”; (iii) the Memorandum “sets forth a reasonable and non-arbitrary method of arriving at the fair market value” of the real property at issue “for purposes of tax assessment and represents a legally acceptable and valid valuation methodology for utilization by the [Fulton County Board of Assessors]”; and (iv) “the valuation methodology employed in the Memorandum . . . complies with both [Sherman I\ and [Harris].”

For the reasons explained in Sherman II and discussed above, these findings offact fail to meet the requirements of OCGA § 9-11-52 (a). Sherman II, 317 Ga. App. at 351 (4) (a) (finding that the court’s conclusion that the ramp-up method complied with Sherman I and Harris failed to satisfy OCGA § 9-11-52 (a), because it failed to “explain the facts or analysis [the lower court] used to reach this conclusion”). And without the required findings of fact and conclusions of law, “we are unable to determine, pursuant to Sherman I and Harris, that the valuation method used by appellees is not arbitrary and unreasonable.” (Footnote omitted.) Id.

In support of the trial court’s findings on this issue, DAFC argues that Sherman’s failure to provide transcripts of the evidentiary hearings prevents him from challenging on appeal “factual findings” such as those referenced above. We disagree.

DAFC is correct that where a transcript of the evidence is necessary to decide an appellant’s claims of error, “and the appellant omits it from the record or fails to submit a statutorily authorized substitute,” we must presume that the evidence supported the judgment of the trial court. (Citation and footnote omitted.) Jackman v. LaSalle Bank, N.A., 299 Ga. App. 894, 896 (1) (683 SE2d 925) (2009). Where a trial court fails to make the factual findings and conclusions of law required by OCGA § 9-11-52 (a), however, its order will be vacated and remanded, even in the absence of a transcript. See L&L Electrical Svc. v. L.K. Comstock & Co., 168 Ga. App. 780, 781 (310 SE2d 557) (1983); Tele-Spot of Atlanta v. Garden Cities Corp., 137 Ga. App. 238 (2) (223 SE2d 273) (1976). As a matter of logic, this same exception to the transcript requirement must apply where, as here, the trial court’s factual findings are so conclusory in nature that they fail to meet the requirements of OCGA § 9-11-52 (a). See Broussard v. Williams, 164 Ga. App. 545 (298 SE2d 269) (1982) (vacating and remanding in the absence of a transcript, and noting that in making findings of fact and conclusions oflaw, “[t]he trial court is required to ‘ascertain the facts and state not only the end result of its inquiry but the process by which it was reached’ ”) (citations and punctuation omitted). Accordingly, the absence of a transcript does not prevent us from vacating the court’s order and remanding the case for entry of an order setting forth both the facts on which it is basing its conclusions as well as the analysis by which it arrived at the same.

3. In his pleadings below, Sherman asserted that the structure of the bond transaction at issue violates OCGA § 36-62-8 (b) because, under the terms of that transaction, Owens will purchase its own bonds and thus no funds will actually change hands. The trial court’s order, however, fails entirely to address this claim. For that reason, we must vacate the order and remand the case to allow the trial court to consider this argument and make the requisite findings of fact and conclusions oflaw with respect thereto. See Sherman II, 317 Ga.App. at 352 (4) (b) (holding that the trial court’s failure to specifically address Sherman’s claim that the structure of the bond transaction at issue violated OCGA § 36-62-8 (b), together with its failure to offer any analysis explaining how “it came to its conclusion that the proposed transaction” complied with the statute, necessitated vacation of the order and remand of the case).

4. In its conclusions oflaw, the trial court held: “The execution of the Memorandum ... by the Board is not an ultra vires act that is prohibited by OCGA § 36-30-3 (a).” Sherman challenges this holding on appeal. DAFC, however, contends that Sherman cannot challenge this ruling, because he failed to raise the issue of ultra vires conduct in the court below. We disagree.

The law in Georgia is that because the appellate courts are for correction of errors oflaw, “[i]ssues which have not been ruled on by the trial court may not be raised on appeal.” (Citation omitted; emphasis supplied.) Ga. Dept, of Natural Resources v. Coweta County, 261 Ga. 484 (405 SE2d 470) (1991). See also Hart v. Groves, 311 Ga. App. 587, 588 (1) (716 SE2d 631) (2011) (“in the absence of a ruling by the trial court, this Court has nothing to review”) (citation and punctuation omitted). And this rule applies even where a party raised and argued an issue below, but the trial court declined to address the issue in its order. See Zywiciel v. Historic Westside Village Partners, 313 Ga. App. 397, 402 (5) (721 SE2d 617) (2011). We are aware of no law, however, holding that a party may not challenge on appeal a ruling of the trial court unless he can show that he, rather than some other party, provoked the ruling by affirmatively raising the issue in the trial court. Thus, given that the trial court’s order expressly held that the execution of the Memorandum was not an ultra vires act, Sherman is entitled to challenge this conclusion on appeal.

Turning to the merits of Sherman’s claim of error, we note that the conclusion that the execution of the Memorandum was not an ultra vires act, like the other holdings challenged by Sherman, cites to no legal authority and contains no analysis explaining how the court below arrived at this result. Accordingly, it provides us with no basis for meaningful review of Sherman’s claim of error and consequently, we must vacate and remand the trial court’s order. Sherman II, 317 Ga. App. at 352 (4) (b).

5. Sherman also asserted below that the Memorandum violated the Georgia Constitution because it provides for a “window of time” during which the leasehold estate will be tax-exempt entirely. With respect to this objection by Sherman, the trial court concluded, as a matter of law, that “ [t] he terms of the proposed bond transaction do [ ] not create a gap in time during which the property that is the subject of this transaction is illegally exempt from any taxation or [constitute] any other illegal tax exemption.” Again, however, the order contains no findings of fact that support this conclusion. Moreover, this legal conclusion fails to acknowledge the relevant language of the Georgia Constitution and it offers no analysis to explain why the Memorandum complies with that provision or why the transaction does not otherwise create an illegal tax exemption. On remand, therefore, the trial court must make findings of fact and conclusions of law sufficient to address this claim. Sherman II, 317 Ga. App. at 352 (4) (b).

For the foregoing reasons, the order of the court below is vacated. The case is remanded to allow the trial court to enter a new order on the Bond Validation Petition. Such order shall contain specific factual findings and conclusions of law necessary to explain any ultimate holdings of the trial court that: (i) the method used by DAFC to value the leasehold estate is valid under the requirements of Harris and Sherman I; (ii) the structure of the bond transaction does not violate OCGA § 36-62-8 (b); (iii) the execution of the Memorandum did not violate OCGA § 36-30-3 (a) and therefore did not constitute an ultra vires act; and (iv) the structure of the bond transaction does not create an unconstitutional tax exemption.

Judgment vacated and case remanded with direction.

Miller, P. J., and Ray, J., concur.

Decided March 22, 2013.

John F. Woodham, for appellant.

Paul L. Howard, Jr., District Attorney, Ichter Thomas, Cary Ichter, S. Renee Huskey, Schiff Hardin, Lewis C. Horne, Jr., King & Spalding, William A. Holby, Benjamin F. Easterlin TV, for appellees.

       Abond transaction leasehold estate is created when a local development authority, in accordance with its redevelopment powers, enters into a bond transaction agreement with a private developer of certain real property. The local development authority issues revenue bonds under a financing program to the developer, who conveys to the authority fee simple title to the property. The development authority and the developer then enter into a multi-year lease arrangement whereby the authority, as owner, leases the property to the developer. The resulting lease payments are used by the local development authority to make the principal and interest payments on the revenue bonds. The terms of the agreement allow the developer to repurchase the fee simple estate for a nominal amount once the revenue bonds are paid down or retired.

        Sherman v. Fulton County Bd. of Assessors, 288 Ga. 88, 89 (701 SE2d 472) (2010) (f Sherman I”).

       While DAFC is exempt from such taxes under OCGA § 36-62-3, a business which takes a leasehold from the authority is subject to ad valorem taxation on the fair market value of the possessory interest held. See DeKalb County Bd. of Tax Assessors v. W.C. Harris & Co., 248 Ga. 277, 279 (2) (282 SE2d 880) (1981).

       DAFC contends that because the transaction gives Owens the right to acquire a fee simple interest in the Project property for a nominal amount after the expiration of the ten-year lease period, the real value of Owens’s leasehold interest is in its “reversionary interest.” Thus, with each passing year, as Owens moves closer to acquiring the reversionary interest, the value of the leasehold interest increases.

       No hearing transcript or order setting a hearing appears in the record, but the trial court’s validation order references “a hearing,” and DAFC asserts that several hearings were held. Specifically, DAFC claims that Sherman offered no evidence at the “series of evidentiary hearings” held on the petition.

       Although as a private citizen Sherman was entitled to become a party to this proceeding (see OCGA § 36-82-77 (a)), the record before us does not show how Sherman was made a party. DAFC, however, has not raised the issue of Sherman’s standing, and we therefore assume, for purposes of this appeal, that Sherman is properly before the Court. Compare Sherman v. Dev. Auth. of Fulton County, 321 Ga. App. 550 (739 SE2d 457) (2013).

       That Code provision states, in relevant part: “[I]n all nonjury trials in courts of record, the court shall upon request of any party made prior to such ruling, find the facts specially and shall state separately its conclusions of law.”

       In Sherman I, Sherman brought an action for declaratory and injunctive relief against the Board and DAFC asserting that the “ramp-up” methodology for valuing a leasehold estate, similar to the one at issue, did not reflect the property’s true market value, as required by law. 288 Ga. at 89. The trial court granted DAFC and the Board judgment on the pleadings and dismissed the case. Our Supreme Court reversed, finding, inter alia, that dismissal was improper because Sherman had made “material allegations which could be supported by admissible evidence” (id. at 95), including his allegation that the “ramp-up” methodology used to determine the fair market value of the leasehold estate was “arbitrary and unreasonable.” Id. at 93. The Supreme Court also held that to determine whether a valuation methodology applied by a local county board of tax assessors to a bond transaction leasehold estate was “arbitrary or unreasonable!,]” a court must apply the factors set forth in Harris. Id. at 92. Under Harris, to prove that it acted properly in valuing a leasehold estate, a taxing authority must demonstrate that the valuation method used was neither arbitrary nor unreasonable. It may make such a showing through evidence establishing that its valuation method followed an authorized appraisal approach •— i.e., an approach that takes into account factors such as “the terms and conditions” of the lease, “the nature and location of the property involved,” the “fair market value of similarly leased property,” and the “prevailing rents in the area.” 248 Ga. at 281 (3).
      Evidence that a local taxing authority had applied the Harris factors was necessary, according to the Supreme Court, because “the fair market value of a leasehold interest must necessarily vary in accordance with the terms and conditions of each agreement as well as the nature and location of the property involved.” (Punctuation omitted.) 288 Ga. at 92, citing Harris, supra. The Sherman 1 court further noted that on remand of that case, “a valuation of the fee simple estate is just the first step. [DAFC and the Board] will need to offer evidence as to how their [‘ramp-up’] method[,] [as] applied to the leasehold estate[,] incorporates the requisite factors.” Id. at 93.

       That statute provides, in relevant part:
      The proceeds derived from the sale of all bonds and bond anticipation notes issued by an authority shall be held and used for the ultimate purpose of paying, directly or indirectly as permitted in this chapter, all or part of the cost of any project, including the cost of extending, financing, adding to, or improving the project, for the purpose of refunding any bond anticipation notes issued in accordance with this chapter or refunding any previously issued bonds of the authority.
      OCGA § 36-62-8 (b).

       “One council may not, by an ordinance, bind itself or its successors so as to prevent free legislation in matters of municipal government.” OCGA § 36-30-3 (a).

       Specifically, Sherman II involved bonds “intended to finance the acquisition, renovation, and equipping of a warehouse distribution center in Fulton County . . . that would he developed by Lowe’s [Home Centers, Inc.].” 317 Ga. App. at 345.

       For example, the trial court’s order at issue in Sherman I found that the Memorandum sets forth a reasonable and non-arbitrary method of arriving at the fair market value of the property that is the subject of the bond transaction for purposes of tax assessment and represents a legally valid valuation methodology for utilization hy the Board [of Assessors] and that... the valuation methodology employed in the Memorandum of Agreement complies with both Sherman I and Harris.

      (Punctuation omitted.) 317 Ga. App. at 351 (4) (a). Identical “findings of fact” were made by the trial court in this case. We more fully analyze the trial court’s factual findings in this case below.

       Specifically, he asserted that the Memorandum violated Art. VII, Sec. I, Par. Ill (a) of the Georgia Constitution, which provides: “All taxes shall be levied and collected under general laws and for public purposes only. Except as otherwise provided in subparagraphs (b), (c), (d), (e), and (f) of this Paragraph, all taxation shall he uniform upon the same class of subjects within the territorial limits of the authority levying the tax.”


text:
    A12A2135.
    HAZZARD v. THE STATE.
    (740 SE2d 640)
   Branch, Judge.

Avery L. Hazzard appeals the denial of his motion to withdraw a negotiated plea on the ground that his rights under the Sixth and Fourteenth Amendments were violated because his trial counsel rendered ineffective assistance of counsel.

On May 6, 2009, Hazzard was indicted on a count of possession of cocaine with intent to distribute and two counts of obstruction; he was indicted as a recidivist based on four prior convictions for drug related offenses. Attorney Terry Jackson appeared on behalf of Hazzard and assisted Hazzard in being released on bond. On September 6, 2009, Hazzard was arrested and later indicted on a single count of theft by receiving stolen property; Hazzard was again indicted as a recidivist based on the same prior convictions. Attorney Marcus Tucker was appointed to represent Hazzard on the theft charge.

On January 28, 2010, the Superior Court of Chatham County conducted a joint preliminary hearing in the two cases at which both counsel appeared on behalf of Hazzard. The State offered ten years to serve on the drug and obstruction charges with a waiver of the recidivism charge, credit for time served, and the possibility of parole. The trial court and the prosecutor explained that if Hazzard rejected the State’s offer, he could go to trial and face a minimum of ten years to serve and sentencing as a recidivist, which could mean life in prison with no chance of parole. The State also offered a plea on the theft charge often years to serve, to be served concurrent with the drug and obstruction charges, again waiving the recidivist charge. The court explained that Hazzard would face a ten-year sentence on a non-negotiated plea or trial. The court stressed to Hazzard that the choice was his. After discussing his options with both counsel, Hazzard chose to plead not guilty as to all charges.

On February 11, 2010, the trial court entered an order in which the court clarified the sentence that Hazzard stood to receive under the applicable recidivist sentencing law. The court concluded Hazzard was subject to a sentence as long as 40 years or life in prison and that, if the State should prove that the current drug charge represented his fourth or greater felony conviction, Hazzard would not be eligible for parole.

On May 4, 2010, Hazzard’s drug and obstruction case was called to trial. There is no indication of when the theft charge was scheduled for trial. Only Jackson, Hazzard’s attorney on the drug case, appeared on his behalf. Hazzard’s appointed counsel in the theft case was not present. The court was prepared to select a jury.

At the beginning of the proceedings, the State indicated that its earlier plea offer in the drug and obstruction case was still on the table, and Jackson asked the court to review with Hazzard his possible sentencing as a recidivist in light of the court’s February 11 order, which the court did. As a part of that review, the court explained that as a result of the recidivist charge, if the case went to trial on the drug charges Hazzard faced anywhere from ten to forty years or life with no possibility of parole; the court added that Hazzard faced a sentence of twelve months or less each on the two counts of misdemeanor obstruction. At one point, in response to a request by Hazzard for clarification, the court explained that if Hazzard accepted the negotiated plea of ten years on the drug charge, he would be eligible for parole whereas if he was convicted at trial on that charge and the court chose to sentence him to the minimum sentence of ten years, he would not be eligible for parole. Hazzard explained that as a part of the negotiated plea, the State had offered him credit for his past assistance and cooperation with law enforcement, and he questioned whether he would be receiving that credit. The prosecutor explained that the State’s offer to include the possibility of parole was a response to Hazzard’s past cooperation.

The trial court and the State then told Hazzard that the State was offering to resolve the pending theft charge, as well, and the court explained the proposed sentence on that charge. After much further explanation, Hazzard was given time to confer with Jackson, following which Hazzard agreed to accept the plea to resolve all pending charges, which the court authorized him to do under Alford.

The court then conducted the formal plea hearing. The court explained that Jackson had agreed to “stand-in” for Tucker for the purposes of pleading guilty to the theft charge. The factual basis for the plea to the drug and obstruction charges showed that at 11:30 one night, an officer attempted to pull over Hazzard’s vehicle because he was playing his car stereo very loudly. Hazzard made a turn, and when the officer reached him, he found the vehicle abandoned and still running. That officer and other officers pursued and eventually caught Hazzard, who asked the officers to retrieve the jacket that he dropped while running. Officers found the jacket where Hazzard said it would be and before returning it to him, they searched the pocket and found a prescription bottle in someone else’s name. The bottle proved to contain “crack cocaine, five large pieces and eight smaller pieces separated for distribution.” Hazzard was allowed to call someone, and without having seen what the officers found, he said into the phone that he was under arrest for possession.

The factual basis for the theft charge was that at 5:00 a.m. one day, a homeowner’s son saw people in his father’s home who upon being spotted then fled, and the son called the police. An officer in a car responded and saw two individuals in the area, each carrying an electronic device with the cord dragging on the sidewalk. The officer turned his car around, and by the time he did, one person had fled, leaving Hazzard carrying all the equipment, including a laptop computer that the homeowner identified as his. As a result, Hazzard was charged with theft by receiving stolen property.

During the remainder of the plea hearing, Hazzard stated that he was satisfied with counsel and had sufficient time to speak to Jackson about his plea to the theft charge. Hazzard also signed a “Voluntariness Transcript” showing that he understood the waiver of his rights and his plea. The court then sentenced Hazzard on both indictments according to the negotiated plea: ten years to serve on the drug charge and twelve months to serve on the obstruction charges (concurrent with the drug sentence), with a waiver of the recidivism charge, credit for time served, and the possibility of parole; and ten years to serve on the theft charge, to be served concurrent with the drug and obstruction charges, again waiving the recidivist charge and with the possibility of parole.

On June 28,2010, Hazzard filed a pro se motion for modification/ reduction of sentence in which he alleged ineffective assistance of counsel. On July 29, 2010, Hazzard, now represented by his first appellate counsel, filed a motion to withdraw his plea and a motion to modify his sentence. On May 31,2011, Hazzard, represented by second appellate counsel, filed an amended motion to withdraw his plea in which he alleged ineffective assistance of plea counsel. Hazzard’s attorney also filed an amended extraordinary motion for new trial and an amended motion for modification or reduction of his sentence. A hearing was held on July 12, 2011, following which the trial court denied Hazzard’s motions to withdraw his plea and for modification or reduction of sentence. Hazzard’s extraordinary motion for new trial was deemed abandoned based on a statement at the hearing by Hazzard’s counsel that the motion was not procedurally appropriate.

Hazzard contends the trial court erred by denying his motion to withdraw his plea because Jackson rendered ineffective assistance of counsel. “A ruling on a motion to withdraw a guilty plea lies within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of such discretion.” Frost v. State, 286 Ga. App. 694 (649 SE2d 878) (2007). And when the validity of a guilty plea is challenged, “the state bears the burden of showing affirmatively from the record that the defendant offered his plea knowingly, intelligently, and voluntarily.” Id. (footnote omitted.) When the appellant bases his claim to withdraw on ineffective assistance of counsel, however, the burden shifts to the appellant:

Because [the defendant] based his motion on a claim of ineffective assistance of counsel, the trial court was required to apply the two-prong test set out in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), which asks whether counsel’s performance was deficient and, if so, whether this deficiency was prejudicial to the defendant. Although the State generally bears the burden of establishing the validity of a plea on a motion to withdraw, [the defendant] bears the burden in this case of establishing his claim of ineffective assistance of counsel.

(Citation omitted.) Bailey v. State, 313 Ga. App. 824, 825 (723 SE2d 55) (2012). Specifically, Hazzard must show “that there is a reasonable probability that, but for defense counsel’s errors, [Hazzard] would not have pleaded guilty.” (Citations omitted.) McCloud v. State, 240 Ga. App. 335 (1) (525 SE2d 701) (1999).

1. Hazzard contends Jackson rendered ineffective assistance of counsel because (i) he failed to investigate the charge of possession, and (ii) he failed to interview alibi witnesses. Hazzard, however, has not offered any argument or evidence to support his general claim of failure to investigate. See Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”). Furthermore, the record demonstrates that Jackson did investigate the case: he met with Hazzard at least a dozen times, he obtained discovery information from the State, and he prepared Hazzard for his direct testimony and cross-examination. Accordingly, this argument is without merit.

As to his counsel’s alleged failure to interview alibi witnesses, Hazzard contends that Jackson should have interviewed his girlfriend and Kenneth Durden. But Hazzard has failed to offer what either witness would have said had they testified. The only purported evidence in the record is an unsworn statement by Durden. And neither witness testified at the hearing on the motion to withdraw the plea. “As a result, [Hazzard] has not demonstrated that there is a reasonable probability he would have insisted on going to trial but for trial counsel’s failure to interview any potential witness.” (Footnote omitted.) Trapp v. State, 309 Ga. App. 436, 439 (2) (710 SE2d 637) (2011).

2. Hazzard contends Jackson was ineffective because he failed to file a motion to suppress regarding the traffic stop. Again, however, Hazzard has failed to offer any argument or citation of authority regarding the validity of the traffic stop. The argument is therefore abandoned. Court of Appeals Rule 25 (c) (2). See Bass v. State, 309 Ga. App. 601, 608 (4) (710 SE2d 818) (2011) (appellant abandons error “by failing to support it with either legal authority or argument”).

3. Hazzard also contends trial counsel was ineffective because during the plea negotiations he failed to obtain a benefit for Hazzard’s efforts assisting the police as a confidential informant. But as shown above, as a part of the negotiated plea the State offered the possibility of parole in exchange for Hazzard’s assistance. As Hazzard has not shown what could have happened differently with regard to that negotiation, this allegation is without merit.

4. Hazzard also argues Jackson was ineffective in representing him on the theft charge by “standing in” for Tucker when Hazzard entered his plea because Jackson knew nothing about the theft charge. But again, Hazzard has not provided any citations of authority or argument about how he was affected adversely by this action. In fact, at the plea hearing, Hazzard stated that he was satisfied that he had sufficient time to speak to Jackson about his plea to the theft charge. Further, the plea enabled Hazzard to resolve both cases simultaneously and obtain a sentence on the theft charge that will run concurrent to the drug charge sentence of the same length, thereby greatly reducing the sentence he would have faced if he had been convicted of all charges against him following a trial.

In sum, Hazzard has failed to carry his burden of showing ineffective assistance of counsel in connection with his Alford plea.

Judgment affirmed.

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

Decided March 22, 2013.

Solomon A. Amusan, for appellant.

Larry Chisolm, District Attorney, Christine S. Barker, Meg E. Heap, Assistant District Attorneys, for appellee.

       Although the transcript style identifies both cases, the colloquy between the court, the prosecutor, and Jackson shows that the trial scheduled to take place that day was the trial on the drug and obstruction charges.

       See North Carolina v. Alford, 400 U. S. 25, 37 (91 SC 160, 27 LE2d 162) (1970) (“An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”).