author: Andrews, Presiding Judge.

text:
    A13A2297.
    NILES v. THE STATE.
    (754 SE2d 406)
   Andrews, Presiding Judge.

James Niles was found guilty in a bench trial of possession of cocaine with intent to distribute in violation of OCGA § 16-13-30 (b) and possession of less than one ounce of marijuana in violation of OCGA §§ 16-13-30 (j) and 16-13-2 (b). The prosecution and defense stipulated to conduct the trial based on evidence produced at the hearing on Niles’s pre-trial motion to suppress evidence found by police during a search of his residence. Niles’s sole enumeration of error is that the trial court erred by denying his motion to suppress the evidence supporting the guilty verdict. We find no error and affirm.

The stipulated evidence showed the following: Uniformed DeKalb County police responded to an anonymous complaint that illegal narcotics sales might be occurring at a DeKalb County residence. Police went to the residence intending to knock on the front door to investigate the complaint. As they approached the residence, police saw a man exiting the front door who identified himself as Terrance Grant. During a conversation outside the residence, police asked Grant if he lived at the residence. Grant responded that his brother, Niles, iived at the residence, and that, although he (Grant) did not sleep there, he had keys and access to the residence and had a bedroom at the residence where he stored his work tools. Grant told police that he was there to pick up some work tools. Police asked Grant if Niles was present at the residence, and Grant said Niles was not there. At that point, police asked Grant for consent to walk through the residence for the purpose of ensuring that no one else was present at the residence, and Grant consented. Pursuant to Grant’s consent, police walked through the residence while calling out “DeKalb Police” but found no one else present. During the walk-through, police saw that one bedroom in the residence contained Grant’s work tools, and that another bedroom contained a bed and clothing. In conducting the walk-through, police entered the front door into a common living room area which provided access to a common hallway. While walking down the hallway, police passed an open closet located directly across the hallway from the bedroom containing the bed. From the hallway, police saw in the closet in plain view suspected crack cocaine and marijuana. Based on the suspected contraband seen in plain view during the walk-through of the residence, police immediately applied to the DeKalb County Magistrate Court for a warrant to search the residence. The Magistrate Court issued a search warrant, and police re-entered the residence with the warrant and seized the suspected contraband from the hallway closet. Also in the closet, police found various written documents belonging to Niles, and items commonly used to sell narcotics — a digital scale with cocaine residue and plastic baggies. Items belonging to Niles were also found in the bedroom containing the bed. The suspected cocaine tested positive for cocaine at the State Crime Lab, and the suspected marijuana was identified as marijuana by a police expert trained in the identification of marijuana. Niles does not contest that the stipulated evidence admitted over his motion to suppress was sufficient to support the guilty verdict.

Niles contends that the trial court should have granted his motion to suppress because his brother, Grant, lacked authority (or apparent authority) to give consent for the police to enter his residence to do the initial walk-through. Accordingly, Niles contends that, because police were illegally in the residence for the walk-through when they saw the cocaine and marijuana in plain view, there was no legal basis to use this information to obtain the subsequent warrant to search the residence for the cocaine, marijuana, and other seized items. The trial court denied the motion to suppress on the basis that: (1) the evidence showed a sufficient basis for Grant to give the officers consent to enter the residence for the initial walk-through; or (2) even if Grant did not in fact have authority to give consent for the police to enter the residence for this purpose, the police reasonably relied upon Grant’s apparent authority to give consent.

The Fourth Amendment generally prohibits the warrantless entry of a person’s home, whether to make an arrest or to search for specific objects. The prohibition does not apply, however, to situations in which voluntary consent has been obtained, either from the individual whose property is searched, or from a third party who possesses common authority over the premises.

Illinois v. Rodriguez, 497 U. S. 177, 181 (110 SCt 2793, 111 LE2d 148) (1990) (citations and punctuation omitted). Common authority justifying third-party consent for police to enter the premises rests

on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

United States v. Matlock, 415 U. S. 164, 171, n. 7 (94 SCt 988, 39 LE2d 242) (1974). The State has the burden to establish that the consenting third party has such common authority. Rodriguez, 497 U. S. at 181. But even if the consenting third party did not in fact have authority to give consent to enter, where police reasonably believed that the third party had such authority, this constitutes apparent authority which validates the entry. Id. at 182.

As with other factual determinations bearing upon search and seizure, determination of consent to enter must be judged against an objective standard: would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises? If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid.

Id. at 188-189 (citation and punctuation omitted).

We need not address the issue of apparent authority because we conclude that the State carried the burden of establishing that Grant did in fact have authority to consent for police entry to the residence and the common hallway in the residence from which the contraband in the open closet was seen in plain view. In response to police inquiry, Grant told the officers that he had a key and access to the residence; had a bedroom at the residence where he kept his work tools; and that his brother, Niles, lived at the residence. Although this information may not have been a sufficient basis to show that Grant had common authority over any portion of the residence exclusively occupied by Niles, it was sufficient to establish that Grant had common authority ■—joint access or control for most purposes — over common areas in the residence such as the hallway Given that Grant had a key and access to the residence and use of a bedroom at the residence, it is reasonable to conclude that he had joint access with Niles to the common areas in the residence; authority to permit police entry into those areas; and that Niles assumed the risk Grant might consent to such entry. See 4 LaFave, Search and Seizure, § 8.3 (f) (5th ed.) (discussing necessity of considering consenting party’s authority over the particular area searched and recognizing that “[s]ome portions of premises are shared more than others and in different ways; some are shared wholly and some are not at all”).

Decided January 24, 2014.

Kenneth D. Kondritzer, for appellant.

Robert D. James, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Because police were lawfully in the common hallway pursuant to valid consent, they were lawfully in a position to see the contraband in plain view in the open closet. Wesson v. State, 279 Ga. App. 428, 431-432 (631 SE2d 451) (2006). It follows that police used lawfully obtained evidence of the contraband seen in the residence as a proper basis for obtaining the warrant to enter and search the entire residence.

Judgment affirmed.

Dillard and McMillian, JJ., concur.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A12A0135.
    ROESSER v. THE STATE.
    (754 SE2d 409)
    Decided January 27, 2014.

      Brian Steel, for appellant.

      Daniel J. Porter, District Attorney, W. Charles Ross, Assistant District Attorney, for appellee.
   Branch, Judge.

In Roesser v. State, 316 Ga. App. 850 (730 SE2d 641) (2012), this Court affirmed the trial court’s denial of Roesser’s plea in bar asserting double jeopardy in connection with an attempt to retry Roesser on the lesser included offense of voluntary manslaughter, for which the jury was unable to reach a verdict, after the same jury acquitted him of malice murder, felony murder, and aggravated assault. On writ of certiorari, the Supreme Court of Georgia reversed. Roesser v. State, 294 Ga. 295 (751 SE2d 297) (2013). We therefore vacate our earlier opinion, adopt the Supreme Court’s opinion as our own, and reverse the judgment of the court below.

Judgment reversed.

Miller and Ray, JJ., concur.


author: Miller, Judge.

text:
    A13A1809.
    MORI LEE, LLC v. JUST SCOTT DESIGNS, INC.
    (754 SE2d 616)
   Miller, Judge.

Just Scott Designs, Inc., d/b/a Frills ’N Fancies (“Just Scott”), brought this action against Mori Lee, LLC alleging that Mori Lee breached a settlement agreement and seeking specific performance. The parties filed cross-partial motions for summary judgment on the issue of the existence of a settlement agreement, and the binding effect thereof. The trial court granted Just Scott’s motion and denied Mori Lee’s motion. Mori Lee appeals from that order, contending that there was no binding settlement agreement. For the reasons that follow, we affirm the trial court’s denial of Mori Lee’s partial motion for summary judgment and reverse the trial court’s grant of Just Scott’s partial motion for summary judgment.

On appeal from a grant of summary judgment, we conduct a de novo review of the evidence to determine if there exists a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, entitle the movant to a judgment as a matter of law.

(Citation and punctuation omitted.) Capital Color Printing v. Ahern, 291 Ga. App. 101, 102 (661 SE2d 578) (2008).

So viewed, the record shows that Just Scott is in the business of selling ladies formal wear at its retail store in Statesboro, Georgia. Mori Lee is an out-of-state manufacturer and distributor of ladies formal wear, including prom and wedding dresses. Over the course of several years, Just Scott purchased approximately 1,200 dresses from Mori Lee. Just Scott ordered both prom and wedding dresses pursuant to Mori Lee’s policy that a retailer order both lines of dresses if the retailer sold both types of dresses.

In early 2011, Just Scott ordered a number of prom and wedding dresses pursuant to Mori Lee’s policy. After placing the order, Just Scott discovered that Mori Lee had allowed some retailers to be exempt from its requirement that the retailer buy a wedding dress if it ordered a prom dress. In May 2011, more than five days after receiving its order of prom and wedding dresses, Just Scott returned the bridal packages and sent an e-mail to Mori Lee explaining that it wished to rescind its order of wedding dresses, that it had returned the dresses, and that it expected a refund. In its e-mail, Just Scott stated that Mori Lee’s sales representative had provided incorrect information that it was required to purchase both prom and wedding dresses from Mori Lee.

In response, Mori Lee stated that the sales representative accurately conveyed Mori Lee’s policy, it would not accept unauthorized returns, and it would refer Just Scott’s account for legal action if full payment for the dresses was not received within seven days. After an exchange of several more e-mails, Mori Lee informed Just Scott that it was proceeding with the collection of $2,182.54 — the amount owing for the wedding dresses — and the matter had been sent to the company’s attorney.

The vice president of operations for Mori Lee averred that it never actually hired an attorney to collect on the account, but rather, it hired a collection agency, Account Management Systems (“AMS”). In August 2011, Just Scott was contacted by the Law Offices of Ross Gelfand, which had been retained by AMS, regarding an attempt to collect the amount owed to Mori Lee. Just Scott contacted its attorney, who worked with Ross Gelfand to settle the dispute. Just Scott’s attorney made an offer to Ross Gelfand to provide full payment of the debt in exchange for becoming a distributor of Mori Lee’s prom dresses without the requirement to order and sell Mori Lee’s wedding dresses. This offer was communicated from Ross Gelfand to AMS, and AMS agreed to the settlement terms. Just Scott’s attorney then sent Ross Gelfand a letter, dated October 19, 2011, memorializing the purported settlement agreement. A check for $2,182.54 was enclosed with that letter, along with instructions that if Ross Gelfand disputed any of the terms of the agreement, it should not negotiate the enclosed check, because negotiation of the check would constitute confirmation of the settlement terms. The $2,182.54 check, which was made payable to Mori Lee, was subsequently deposited.

Mori Lee subsequently received a check for $1,527.70, after deduction of AMS’s fee, and representatives from Mori Lee claimed that they did not learn of the settlement agreement until sometime in December 2011. The vice president of operations for Mori Lee averred that Mori Lee was not involved in the settlement discussions between AMS and its attorney, Ross Gelfand. The vice president also stated that, had he been asked, he would not have agreed to waive Mori Lee’s policy requiring Just Scott to purchase both prom and wedding dresses. Mori Lee subsequently refused to ship an order placed by Just Scott, and the instant lawsuit ensued.

1. On appeal, Mori Lee contends that the trial court erred in granting Just Scott’s partial motion for summary judgment and denying its partial motion for summary judgment because the evidence showed that Ross Gelfand did not have the authority to enter into a distributorship agreement or change the company’s purchase policy. Since factual questions remain, we conclude that neither party was entitled to summary judgment.

“As a general rule, the question of authority to do an act, when it is to be determined from disputed facts or undisputed facts from which conflicting inferences may be drawn, must be decided by the jury as a question of fact or as a question of mixed fact and law.” (Citation omitted.) Atlanta Limousine Airport Svcs. v. Rinker, 160 Ga. App. 494, 495 (1) (287 SE2d 395) (1981).

An agency relationship may arise by implication as well as by express authority, and agency may be proved by circumstantial evidence. Agency may result where one party has apparent authority to effect the legal relations of another party by transactions with a third party, but it must be emphasized that apparent authority to do an act is created as to a third person when the statements or conduct of the alleged principal reasonably cause the third person to believe that the principal consents to have the act done on his behalf by the purported agent.

(Citations and punctuation omitted.) Hinely v. Barrow, 169 Ga. App. 529, 530 (313 SE2d 739) (1984). A special agency can arise when one person, expressly or by implication, authorizes another to do a single act on his or her behalf. See Lewis v. Citizens & Southern Nat. Bank, 139 Ga. App. 855, 858 (1) (b) (229 SE2d 765) (1976). Under OCGA § 10-6-50, the scope of a special agent’s authority

shall be construed to include all necessary and usual means for effectually executing it. Private instructions or limitations not known to persons dealing with a general agent shall not affect them. In special agencies for a particular purpose, persons dealing with the agent should examine his authority.

An agent’s authority need not be proved by an express contract. 20/20 Vision Center v. Hudgens, 256 Ga. 129, 134 (4) (345 SE2d 330) (1986). Rather, an agent’s authority

may be established by the principal’s conduct and course of dealing, and if one holds out another as his agent, and by his course of dealing indicates that the agent has certain authority, and thus induces another to deal with his agent as such, he is estopped to deny that the agent has any authority which, as reasonably deducible from the conduct of the parties, the agent apparently has.

(Citation and punctuation omitted.) Id.

It is well established that an attorney-client relationship is that of a principal and agent. See Anaya v. Coello, 279 Ga. App. 578, 580 (632 SE2d 425) (2006). “In order that acts of an agent be binding on his alleged principal, a principal and agent relationship must be proved and it must be established that [the] agent acted within [the] scope of [his] authority.” (Citations omitted.) Id. Additionally,

an attorney who has an attorney-client relationship with a party has apparent authority to enter into [a settlement] agreement on behalf of his client and the agreement is enforceable against the client by other settling parties. This authority is determined by the contract between the attorney and the client and by instructions given the attorney by the client, and in the absence of express restrictions the authority may be considered plenary by the court and opposing parties unless the authority is limited by the client and that limitation is communicated to opposing parties.

(Citations and punctuation omitted.) Id.

Here, there are questions of fact regarding Ross Gelfand’s authority to enter into a settlement agreement on behalf of Mori Lee. While Mori Lee representatives averred that Mori Lee did not hire Ross Gelfand as its attorney and that Ross Gelfand was not authorized to enter into the distributorship agreement at issue, an agency relationship was nevertheless created as a matter of law because the evidence showed that Mori Lee never formally assigned the right to collect the debt to a collection agency, and that Ross Gelfand worked on behalf of Mori Lee. “When a collecting agency employs a lawyer to handle the claim of a patron, the patron becomes the lawyer’s client.” Chamberlin Co. of America v. Mays, 96 Ga. App. 755, 758 (1) (101 SE2d 728) (1957).

Although an attorney-client relationship existed in this case, this does not end the inquiry, because an attorney’s authority is limited to the particular purpose for which he was retained. See Addley v. Beizer, 205 Ga. App. 714, 719 (1) (423 SE2d 398) (1992). There is no doubt that Ross Gelfand’s particular purpose was to collect on Just Scott’s debt. A factual question remains, however, regarding whether Ross Gelfand was authorized to do other things. Notably, Mori Lee averred that it would not have allowed Ross Gelfand, or AMS, to waive its company policy and enter into a distributorship agreement. Nevertheless, Mori Lee admitted that there was no written contract, and there were no apparent limitations on the authority given to AMS regarding the collection of the debt. See Anaya, supra, 279 Ga. App. at 580 (in the absence of express restrictions of authority that is communicated to opposing parties, an attorney’s authority is considered plenary). Moreover, Just Scott had a duty to inquire into the limits of Ross Gelfand’s authority. See OCGA § 10-6-50 \ Addley, supra, 205 Ga.App. at 719 (1). No evidence showed that Just Scott made such an inquiry. Consequently, “[i]t is a question to be decided under the facts of [this] case whether [Just Scott] is barred from obtaining relief because of [its] negligence in not ascertaining [whether Ross Gelfand] had actual authority to enter the agreement.” (Citation and punctuation omitted.) Addley, supra, 205 Ga. App. at 720 (1); see also 20/20 Vision Center, supra, 256 Ga. at 134 (5), n. 4; cf. Gosule v. Bestco, Inc., 227 Ga. App. 863, 864 (1) (490 SE2d 532) (1997) (“Any apparent authority that might otherwise exist vanishes in the presence of the person’s actual or constructive knowledge of what the agent is or is not empowered to do.”) (citation and punctuation omitted). In sum, questions remain regarding whether Ross Gelfand had the authority to enter into a binding agreement on Mori Lee’s behalf, and whether Just Scott’s failure to inquire into that authority precluded relief.

2. Mori Lee also contends that, even if Ross Gelfand had the authority to enter into the distributorship agreement on its behalf, the agreement was not binding because it lacked essential terms. We disagree.

For a settlement agreement to be enforceable,

the parties must agree on all material terms, and those terms cannot be incomplete, vague, uncertain or indefinite. In considering whether a contract is unenforceable, however, a trial court must bear in mind that the law leans against the destruction of contracts on the ground of uncertainty, and the uncertainty and indefiniteness at issue must be “extreme” to warrant the conclusion that a contract cannot be enforced____It is unnecessary that a contract state definitively and specifically all facts in detail to which the parties may be agreeing, but as to such matters, it will be sufficiently definite and certain if it contains matters which will enable the courts, under proper rules of construction, to ascertain the terms and conditions on which the parties intended to bind themselves. This is particularly true with respect to settlement agreements, which are highly favored under the law and will be upheld whenever possible as a means of resolving uncertainties and preventing lawsuits.

(Punctuation and footnotes omitted.) Triple Eagle Assoc. v. PBK, Inc., 307 Ga. App. 17, 19-20 (2) (704 SE2d 189) (2010).

While Mori Lee argues that the settlement agreement was uncertain, it points to no ambiguity or essential element that is missing. The settlement agreement clearly provided that in exchange for Just Scott’s full payment of its debt, it would resume its business relationship with Mori Lee, with the exception that Mori Lee would no longer impose its requirement that Just Scott purchase wedding dresses. The agreement also provided that this arrangement would continue for as long as both parties conducted business, and this indefinite duration did not render the agreement void. See Alexis, Inc. v. Werbell, 209 Ga. 665, 670-671 (1) (f) (75 SE2d 168) (1953) (contract providing that it would be binding so long as corporation existed was enforceable); cf. Triple Eagle Assoc., supra, 307 Ga. App. at 22 (2) (a) (use of phrase “suitable period of time” did not render settlement agreement unenforceable). We see no ambiguity in the agreement, and there was a meeting of the minds as to the future course of business between the parties, assuming that the evidence shows that Ross Gelfand had the authority to enter into the settlement agreement.

3. Just Scott argues that even if Ross Gelfand did not have the authority to enter into a settlement agreement, it was nevertheless entitled to summary judgment because Mori Lee ratified Ross Gelfand’s actions. We disagree.

It has long been the law in Georgia that a ratification by the principal relates back to the act ratified, and takes effect as if originally authorized. A ratification may be express, or implied from the acts or silence of the principal. Where a principal is informed by his agent of what he has done, the principal must express his dissatisfaction within a reasonable time, otherwise his assent to his agent’s acts will be presumed. Unless the principal repudiates the act promptly or within a reasonable time, a ratification will be presumed. But in order for a ratification to be binding, the principal must have had full knowledge of all material facts.

(Footnotes omitted.) Merritt v. Marlin Outdoor Advertising, 298 Ga. App. 87, 91 (2) (679 SE2d 97) (2009). The question of what is an unreasonable period of time is one for the jury. Klingbeil v. Renbaum, 146 Ga. App. 591, 593 (3) (246 SE2d 698) (1978).

Here, Just Scott’s offer was memorialized on October 19, 2011, when it sent a settlement check and a letter to Ross Gelfand confirming the details of the purported settlement agreement. The check was cashed shortly thereafter. While Mori Lee learned on November 4, 2011 that Just Scott’s account had been paid in full and received funds less than two weeks later, Mori Lee averred that it did not learn of the full terms of Just Scott’s settlement offer until sometime in December 2011. The record is silent as to Mori Lee’s subsequent course of action. The record reveals only that Just Scott filed the instant lawsuit in April 2012 alleging that Mori Lee breached the purported settlement agreement. In June 2012, Mori Lee answered the complaint and paid money into the trial court’s registry for the purpose of rescinding any purported agreement.

Just Scott argues that Mori Lee ratified the purported agreement because it did not attempt to rescind the agreement until more than six months after it learned of its existence. Whether Mori Lee acted within a reasonable time to repudiate Ross Gelfand’s actions is a matter for the jury to determine. See Klingbeil, supra, 146 Ga. App. at 593 (3). We cannot conclude that, as a matter of law, Mori Lee ratified the purported settlement agreement.

Since there are factual questions as to whether Mori Lee authorized Ross Gelfand to accept Just Scott’s distributorship offer or whether Mori Lee subsequently ratified Ross Gelfand’s acceptance, neither party has established that they were entitled to summary judgment. Accordingly, we affirm the denial of Mori Lee’s partial motion for summary judgment and reverse the grant of partial summary judgment to Just Scott.

Decided February 4, 2014.

Callaway, Braun, Riddle & Hughes, R. Krannert Riddle, for appellant.

Brown Rountree, George H. Rountree, Robert F. Mikell, for appellee.

Judgment affirmed in part and reversed in part.

Barnes, P. J., concurs. Ray, J., concurs in the judgment only.

       Just Scott also alleged that Mori Lee breached a contract and committed fraud.

       Mori Lee’s return policy provided that all returns must be made within five days of receipt.

       “Aparty may assign to another a contractual right to collect payment, including the right to sue to enforce the right. But an assignment must be in writing in order for the contractual right to be enforceable by the assignee.” (Citation and punctuation omitted.) Arrow Financial Svcs. v. Wright, 311 Ga. App. 319, 322 (1) (715 SE2d 725) (2011).

       Although Just Scott alleges that Mori Lee accepted its subsequent order and promised to deliver the requested dresses by February 28,2012, Just Scott points to no evidence supporting this allegation.


text:
    A13A2106.
    HENDERSON v. THE STATE.
    (754 SE2d 623)
   Miller, Judge.

Following his plea of guilty to entering an automobile (OCGA § 16-8-18, Count 1), and three counts of burglary (OCGA § 16-7-1, Counts 2, 3, and 4), James Clark Henderson, Jr., acting pro se, appeals the trial court’s denial of his motion to modify his resulting sentence. Finding no error, we affirm.

A review of the record shows that, following his indictment, Henderson, represented by counsel, entered into a negotiated plea agreement on May 16, 2012, in which he was sentenced to a total of forty years, to serve ten, with the remainder to be served on probation.

As part of the negotiated plea, Henderson was ordered to pay restitution to the victims in Count 1 in the amount of $1,095 and to the victim in Count 3 in the amount of $260. As part of the negotiated agreement, Henderson also agreed that he would forfeit any and all rights to post-conviction relief. As stated by the trial court and acknowledged by Henderson during the plea hearing, “[y]ou have forfeited by contract any post-conviction relief that you may normally seek. Do you understand that? MR. HENDERSON: Yes, Sir.”

Nonetheless, on April 26, 2013, Henderson filed his motion to modify his sentence, contending that the restitution ordered on Count 1 was inappropriate and that his parents were ill and needed him. In a one-sentence order, the trial court denied the motion on May 16, 2013.

Decided February 4, 2014.

James C. Henderson, Jr., pro se.

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

We find that Henderson validly waived his right to post-conviction relief by entering into the plea agreement with the State, which was accepted and approved by the trial court. See Adams v. State, 298 Ga. App. 518, 518 (2) (680 SE2d 429) (2009) (having accepted banishment as a condition of probation in a negotiated guilty plea, defendant waived the right to challenge the conditions of probation on appeal); State v. Barrett, 215 Ga. App. 401, 404-406 (2) (451 SE2d 82) (1994) (defendant pled guilty and agreed to waive statute of limitation defense in return for first offender treatment). Henderson was represented by counsel during the plea, and the trial court fully informed Henderson of his rights which Henderson voluntarily waived as part of the plea agreement. Therefore, we need not further consider the argument made here.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       Henderson was sentenced to five years on Count 1; twenty years on Count 2, concurrent with Count 1; twenty years on Count 3, consecutive to Count 2; and twenty years on Count 4, concurrent with Count 3.


author: Boggs, Judge.

text:
    A13A2179.
    THE STATE v. VAUGHN.
    (754 SE2d 614)
   Boggs, Judge.

The State appeals from the trial court’s grant of a motion to suppress filed by Meagan Vaughn, who was charged with violating OCGA § 3-3-23 (a) (2) (minor in possession of alcohol). The State contends that the trial court erred by: (1) concluding that it could not consider information provided to the arresting officer by another police officer when determining whether articulable suspicion supported Vaughn’s detention; and (2) failing to conclude that testimony about the odor of alcohol coming from the defendant and the results of an alco-sensor test provided articulable suspicion for her detention.

[TJhree fundamental principles . . . must be followed when conducting an appellate review of a motion to suppress. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. On numerous occasions the appellate courts of this state have invoked these three principles to affirm trial court rulings that upheld the validity of seizures. These same principles of law apply equally to trial court rulings that are in favor of the defendant. . . .

(Citations, punctuation and footnotes omitted.) Miller v. State, 288 Ga. 286, 286-287 (1) (702 SE2d 888) (2010). “Where... the issue turns on the question of whether a trial court committed an error of law in granting a motion to suppress, we apply a de novo standard of review. [Cit.]” State v. Bethel, 307 Ga. App. 508, 509 (705 SE2d 860) (2010).

The record shows that Vaughn moved to suppress the results of an alco-sensor test of her breath based upon an allegation that she was “randomly and without probable cause stopped and detained [and] required] to take an alco-sensor test.” The transcript of the motion to suppress hearing reveals that Officer Wood testified that he worked part-time at the nightclub where Vaughn was arrested and was familiar with the procedures on “college night” when persons between 18 and 21 years were also permitted to enter the club. When adults under the age of 21 entered the club, they were required to give their driver’s license or identification card to “front door security.” The officers placed an X on one hand and a number on the other hand corresponding to a location where the license or card was stored. When the under-age persons returned to collect their license or card, the officers working the front door would investigate if they detected an “odor of alcoholic beverage coming from them.” Officer Wood testified that he typically pulled them aside, asked them how much they had to drink, and then for an alco-sensor test if they admitted to drinking.

Officer Wood explained that on the evening in question, he was not working at the nightclub, but was instead on duty when he was called to the club “by Officer Ferree, who was working there part time, off duty at that incident location. She said she had several subjects that were intoxicated under age.” When Officer Wood arrived at the nightclub, he testified that he met with the six subjects who had been detained by Officer Ferree, and all of them appeared to be under the influence of alcohol. Officer Wood could not recall whether he performed the alco-sensor tests recorded in his report. Officer Wood acknowledged that he did not have any first-hand knowledge of the details concerning Officer Ferree’s observations before he detained Vaughn. He also testified that he did not have any particularized information about the grounds used by Officer Ferree to detain Vaughn and ask her to submit to an alco-sensor test. While Officer Wood testified that he recalled the smell of alcoholic beverage about Vaughn’s person when he arrived, his report did not reflect this observation, and he initially misidentified Vaughn as someone else at the beginning of the motion to suppress hearing. The State explained that it did not ask Officer Ferree to testify at the hearing because “she just had a baby.”

In a written order issued after the motion to suppress hearing, the trial court made the following findings and conclusions:

Officer Wood of the City of Kennesaw Police Department testified that he was called to a nightclub by a security officer. He testified that when he arrived at the scene he found 6 persons who were being detained for alcohol related charges.
From the stand, Wood initially misidentified the Defendant as the young woman seated with the defense attorney at counsel table. After an objection by the defense and Wood having refreshed his recollection by viewing the arrest photo, the Defendant was identified by Wood as being seated in the gallery. Wood testified that when he arrived at the nightclub all 6 persons, including the Defendant, had been detained, with their identification confiscated but probably not in handcuffs.
The State did not present testimony from the detaining officer, Officer Ferree, who was working as a security [officer] that evening. As a result, the State could not present any competent testimony as to the basis for the Defendant’s detention or the result of the Aleo-Sensor test. Officer Wood could merely testify that the Defendant had an odor of alcohol after he arrived and after Defendant ha[d] been detained and was no longer free to leave. Thus Officer Wood could offer no articulable suspicion as to the basis for Defendant’s detention. The evidence was not clear as to whether Wood actually detected an odor of alcohol coming from the Defendant. Finally, no evidence was set forth by the State to show that the Defendant was under 21 years of age or that such a determination was made prior to her detention.
The State sought to have Officer Wood testify as to what he was told by Ferree, who did not appear to testify. This information, the State contended, was necessary to provide articulable suspicion for Defendant’s detention, and the elements necessary to support an arrest (Defendant’s age, consumption of alcohol). The Court ruled that the State could not present such evidence through another witness who did not have any first-hand knowledge. See Moore v. State, 281 Ga. App. 141 [(635 SE2d 408)] (2006). Hopkins v. State, 283 Ga. App. 654 [(642 SE2d 356)] (2007). White v. State, 273 Ga. 787 [(546 SE2d 514)] (2001).
Based on the foregoing, Defendant’s Motion to Suppress is GRANTED. Any inculpatory evidence gained after Defendant’s detention and before Officer Wood’s arrival is suppressed.

We agree with the State’s assertion that hearsay is admissible during a suppression hearing when determining the existence of probable cause for an arrest or articulable suspicion for an investigatory stop. See Daniel v. State, 298 Ga. App. 245, 248 (3) (679 SE2d 811) (2009); Duke v. State, 257 Ga. App. 609, 610-611 (571 SE2d 414) (2002).

Reasonable suspicion need not be based on an arresting officer’s knowledge alone, but may exist based on the “collective knowledge” of the police when there is reliable communication between an officer supplying the information and an officer acting on that information. Officers are entitled to rely on information provided by other officers or by their dispatcher when asked to be on the lookout for a certain vehicle or suspects. There is no requirement that the officer or officers providing the information testify at the motion to suppress.

(Citations and punctuation omitted.) Edmond v. State, 297 Ga. App. 238, 239 (676 SE2d 877) (2009).

In this case, however, the arresting officer acknowledged that he did not have any particularized information about the grounds used by Officer Ferree to detain Vaughn and to ask her to submit to an aleo-sensor test — the subject of Vaughn’s motion to suppress. Therefore, even if the trial court had considered the hearsay information provided to Officer Wood by Officer Ferree, there would still be an absence of evidence on the critical issue of the motion to suppress: What were the specific and particularized facts justifying Officer Ferree’s detention of Vaughn? See Duke, supra, 257 Ga. App. at 610-611. While such evidence may exist, it was not presented to the trial court, and the State bears the burden of proving that Officer Ferree’s detention of Vaughn was lawful. See Kazeem v. State, 241 Ga. App. 175, 177-178 (525 SE2d 437) (1999) (reversing trial court’s denial of motion to suppress when State failed to present testimony of officers who initiated stop and detained defendants). We therefore affirm the trial court’s order suppressing “[a]ny inculpatory evidence gained after Defendant’s detention and before Officer Wood’s arrival.”

Decided February 4, 2014.

Barry E. Morgan, Solicitor-General, Flynn D. Broady, Jr., Assistant Solicitor-General, for appellant.

Akin & Tate, S. Lester Tate III, for appellee.

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.


author: ELLINGTON, Presiding Judge.

text:
    A13A2088.
    A13A2094.
    CLAYTON COUNTY BOARD OF EDUCATION v. WILMER. CLAYTON COUNTY BOARD OF EDUCATION v. RACHELE.
    (753 SE2d 459)
   ELLINGTON, Presiding Judge.

In each of these cases, the Clayton County Board of Education (“the Local Board”) decided not to renew a tenured teacher’s contract, the Georgia Board of Education (“the State Board”) reversed the decision of the Local Board, and the Superior Court of Clayton County affirmed the decision of the State Board. The Local Board appeals, contending, inter alia, that the State Board erred in reversing the Local Board’s decisions based on its failure to notify the teachers in writing of the decision and of their right to appeal to the State Board in the time and manner required by law and, therefore, that the superior court erred in affirming the decisions of the State Board. Because the substantive issues in these cases are identical, we have consolidated them for decision. For the reasons explained below, we affirm.

Georgia’s Fair Dismissal Act

Under Georgia’s Fair Dismissal Act, OCGA §§ 20-2-940 through 20-2-948, after a teacher’s fourth consecutive contract with a local board of education, the teacher enjoys what are commonly referred to as “tenure rights.” (Punctuation and footnote omitted.) Patrick v. Huff, 296 Ga. App. 343, 345 (1) (674 SE2d 398) (2009). Under the Act, a local board may demote or fail to renew the contract of a tenured teacher only for cause and after providing specified procedural safeguards. West v. Dooly County School Dist., 316 Ga. App. 330, 331 (729 SE2d 469) (2012); see also Oates v. Coffee County Bd. of Ed., 198 Ga. App. 77, 79 (400 SE2d 355) (1990) (“The significance of tenure is that a tenured teacher’s contract may be non-renewed only for one of the reasons specified in OCGA § 20-2-940.”). Absent nonrenewal in compliance with OCGA § 20-2-942, a tenured teacher’s contract is automatically renewed for the following school year.

Under Georgia’s Education Code every local board “shall constitute a tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law[,]” and, as such a matter, a dispute under the Fair Dismissal Act is committed to that administrative process. See Day v. Brantley County School Dist., 298 Ga. App. 717 (680 SE2d 496) (2009). Thus, a teacher with a dispute regarding his or her employment contract generally must first seek redress before the local board of education. OCGA § 20-2-1160 (a); Day v. Brantley County School Dist., 298 Ga. App. at 717 (A complaint against a local board for breach of contract was properly dismissed where the plaintiff failed to exhaust her administrative remedies before filing suit.).

The Fair Dismissal Act requires the local board to give a tenured teacher written notice of its intention not to renew the teacher’s contract, as well as notice of the teacher’s procedural rights. OCGA § 20-2-942 (b); see OCGA § 20-2-940 (b) through (f) (procedures); Patrick v. Huff, 296 Ga. App. at 345 (1). If the teacher serves written notice within 20 days that he or she requests a hearing, the local board then has 14 days to furnish the teacher a notice that complies with the requirements of OCGA § 20-2-940 (b), which includes the charges or grounds for nonrenewal under the provisions of the Fair Dismissal Act. OCGA § 20-2-942 (b). Furthermore, the teacher is entitled to an evidentiary hearing to contest the reasons for nonrenewal before the local school board or, if designated by the local board, before a specialized tribunal, which submits findings and recommendations to the local board for its decision. OCGA § 20-2-940 (e). The Fair Dismissal Act provides that

[t]he local board shall render its decision at the hearing or within five days thereafter. Where the hearing is before a tribunal, the tribunal shall file its findings and recommendations with the local board within five days of the conclusion of the hearing, and the local board shall render its decision thereon within ten days after the receipt of the transcript.

OCGA § 20-2-940 (f).

The State Board is the primary appellate body for reviewing nonrenewal decisions of local boards. OCGA §§ 20-2-940 (f) (In cases of nonrenewal, “[a]ppeals may be taken to the [S]tate [B]oard in accordance with [OCGA §] 20-2-1160 ... and the rules and regulations of the [S]tate [B]oard governing appeals.”); 20-2-1160 (b) (“Any party aggrieved by a decision of the local board rendered on a contested issue after a hearing shall have the right to appeal therefrom to the State Board of Education.”). Under OCGA § 20-2-1160 (a), the decision of a local board in its capacity as a tribunal

shall be binding on the parties; provided, however, that the [local] board shall notify the parties in writing of the decision and of their right to appeal the decision to the State Board of Education and shall clearly describe the procedure and requirements for such an appeal [.]

See Ga. Comp. R. & Regs. r. 160-1-3-.04 (3) (a) 6. (“At the conclusion of the hearing [before a local board of education acting as a school law tribunal], or within 15 days thereafter, the [local board] shall notify the parties of its decision in writing and shall notify the parties of their right to appeal the decision to the State Board of Education.”).

“Any party aggrieved [by a decision of the State Board] may appeal to the superior court of the county wherein the local board of education is situated.” OCGA § 20-2-1160 (c). An appeal to this Court from a decision of a superior court reviewing a decision of the State Board of Education shall be by application for a discretionary appeal, as provided in OCGA § 5-6-35.

With the interplay of the relevant statutes in mind, we turn to the specific facts of the cases at bar.

Case No. A1SA2088

On April 20, 2011, the superintendent of Clayton County Public Schools notified Burnedetta Wilmer, a tenured kindergarten teacher, that he would be recommending to the Local Board that her employment contract not be renewed for the 2011-2012 school year. Wilmer requested an evidentiary hearing, which took place on September 20, 2011, before a tribunal designated by the Local Board. The tribunal recommended nonrenewal of Wilmer’s contract and submitted written findings to the Local Board. The Local Board voted, at its meeting on November 7, 2011, to accept the tribunal’s nonrenewal recommendation. The Local Board informed Wilmer that it had accepted the tribunal’s nonrenewal recommendation, but it did not provide her with the written findings of the tribunal until December 12, 2011. After repeated requests from Wilmer’s attorney for the Local Board’s decision, the Local Board’s attorney notified Wilmer’s attorney, via e-mail sent on February 8, 2012, that the Local Board “issued its decision... within the time frame” required by statute, but the Local Board did not issue a written decision setting forth the basis for nonrenewal (or expressly adopting the findings and recommendation of the tribunal), and it provided Wilmer no formal notice of her right to appeal its decision and the procedure and requirements for such an appeal.

On February 14, 2012, Wilmer appealed to the State Board, challenging the sufficiency of the evidence and arguing that the Local Board had failed to provide her with a written explanation of its decision and notice of her right to appeal the decision to the State Board of Education, as required. The State Board found that the Local Board violated OCGA § 20-2-940 (f), in failing to serve the tribunal’s findings and recommendation upon Wilmer, and OCGA § 20-2-1160 (a), in failing to notify Wilmer in writing of its decision and of her right to appeal. The State Board found that Wilmer was harmed by the Local Board’s procedural faults, in that the Local Board’s “fail[ure] to render a written decision in accordance with OCGA § 20-2-1160” giving the basis for its decision made it impossible for the State Board to “ascertain if the decision was mistaken [.]” In addition, noting that the time limitations in the Fair Dismissal Act exist in order to expeditiously provide teachers with a hearing, including the right to appeal, the State Board found that Wilmer was harmed by the Local Board’s conduct, which had caused the matter to be delayed for over a year since the issuance of the nonrenewal letter. Based on these findings, the State Board reversed the Local Board’s decision. The Local Board then appealed to the superior court.

The superior court agreed with the State Board that the Local Board had violated OCGA § 20-2-1160 (a) by failing to provide timely written notice to Wilmer of its decision not to renew her contract. Further, the superior court found that Wilmer was injured by the Local Board’s late notice. Specifically, it found that the time for her to appeal to the State Board began running on November 7, 2011, the day that the Local Board met and voted to accept the tribunal’s recommendation, and therefore expired on December 7, 2011. The superior court found that, because Wilmer did not appeal until February 14, 2012, the State Board was without jurisdiction to consider her appeal and that the Local Board’s actions deprived Wilmer of an appeal. Because Wilmer was injured by the Local Board’s violation of OCGA § 20-2-1160 (a), the superior court concluded that the requirements of that Code section are mandatory, rather than directory, under Georgia law. Based on these findings and conclusions, the superior court affirmed the decision of the State Board.

Case No. A13A2094

On April 20, 2011, the superintendent of Clayton County Public Schools notified Gala Rachele, a tenured special education teacher, that he would be recommending to the Local Board that her employment contract not be renewed for the 2011-2012 school year. Rachele requested an evidentiary hearing, which took place on October 20 and November 8, 2011, before a tribunal designated by the Local Board. The tribunal recommended nonrenewal of Rachele’s contract and submitted written findings to the Local Board. The Local Board voted, at its meeting on November 28, 2011, to accept the tribunal’s nonrenewal recommendation. On January 17, 2012, the Local Board notified Rachele’s attorney via e-mail that the Local Board had accepted the tribunal’s nonrenewal recommendation, with a copy of the tribunal’s written findings attached. The Local Board did not issue a written decision setting forth the basis for nonrenewal (or expressly adopting the findings and recommendation of the tribunal), and it provided Rachele no formal notice of her right to appeal its decision and the procedure and requirements for such an appeal.

On February 16, 2012, Rachele appealed to the State Board, arguing that the Local Board had violated her due process rights under the Fair Dismissal Act. Following the same analysis as in Wilmer’s case, the State Board reversed the Local Board’s decision. The Local Board then appealed to the superior court. Following the same analysis as in Wilmer’s case, the superior court concluded that, because Rachele filed her appeal to the State Board more than 30 days after the Local Board voted to accept the tribunal’s nonrenewal recommendation, the State Board lacked jurisdiction over her appeal. As in Wilmer’s case, the superior court found that Rachele was harmed by the Local Board’s violations of the Fair Dismissal Act’s procedural requirements and affirmed the State Board’s decision.

Case Nos. A13A2088 and A13A2094

1. The Local Board contends that the superior court erred in ruling that the State Board lacked jurisdiction over the teachers’ appeals on the basis that the appeals were untimely. The Local Board contends that, “if the State Board [had] truly lacked jurisdiction to hear [each teacher’s] appeal because it was not timely filed, then the State Board would have had no authority to do anything or render any decision at all (other than issue an order dismissing [the teacher’s] appeal).” We agree that, by definition, an appellate court or tribunal only has the power to review a judgment or decision of a lower court or tribunal if it has jurisdiction over the appeal. Thus, the threshold issue is whether the State Board had jurisdiction over the teachers’ appeals.

OCGA § 20-2-1160 (b) provides that an appeal to the State Board “shall be filed with the superintendent within 30 days of the decision of the local board.” Ordinarily, the word “shall” in a statute is synonymous with “must” and is a word of command, including with regard to time limits set by the statute. State v. Henderson, 263 Ga. 508, 510-511 (436 SE2d 209) (1993). Generally, the timely initiation of an appeal is an absolute requirement to confer jurisdiction upon an appellate court or tribunal. It follows that the State Board lacked jurisdiction over the teachers’ appeals (1) if the timely filing of an appeal is an absolute requirement to confer jurisdiction upon the State Board under OCGA § 20-2-1160, and (2) if the teachers failed to file their appeals within the time allowed.

(a) As to the first question, the reported decisions of the State Board show that, when an appellant fails to file an appeal from a decision of a local board acting as a tribunal within the time allowed, the State Board dismisses the appeal. This Court has also ruled that the proper filing of a notice of appeal is necessary to bestow jurisdiction upon the reviewing court under OCGA § 20-2-1160 (c). Moreover, we find no statutory basis for concluding that the timely filing of an appeal is not a prerequisite to the exercise of jurisdiction by the State Board. Based on the foregoing, we conclude that the timely filing of an appeal is an absolute requirement to confer jurisdiction upon the State Board under OCGA § 20-2-1160 (b).

(b) In order to determine whether the teachers filed their appeals within the time allowed, we must next determine the date the 30-day period for filing an appeal begins to run. The Education Code does not expressly specify what constitutes the date of a local board’s decision. Arguably, in cases in which a teacher requests a hearing pursuant to OCGA § 20-2-942 (b) (2), the date of a decision not to renew the contract of a tenured teacher is the date a quorum of the local board votes, after a hearing as provided in OCGA § 20-2-940 (e), not to renew the teacher’s contract. See OCGA § 20-2-57 (a) (conduct of business by a local board).

The State Board, however, has held that under these circumstances the 30-day period for filing an appeal under OCGA § 20-2-1160 (b) does not begin to run until a local board complies with the notice provisions of subsection (a) of that Code section, which provides that “the [local] board shall notify the parties in writing of the decision and of their right to appeal the decision to the State Board of Education and shall clearly describe the procedure and requirements for such an appeal[.]” See White v. Lamar County Bd. of Ed., State Bd. of Ed. Case No. 1987-14 (The State Board had jurisdiction to review on the merits the local board’s decision to terminate a driver’s contract because the driver filed his appeal within 30 days of the date the local board issued its written decision, even though it was more than 30 days after the local board voted to terminate his contract.); Shane W. v. Gwinnett County Bd. of Ed., State Bd. of Ed. Case No. 1986-37 (December 11, 1986) (Where the local board failed, when it notified the parents of its decision to suspend their child, to describe the procedure and requirements for appealing the decision, as required by OCGA § 20-2-1160 (a), the State Board had jurisdiction to review on the merits the local board’s decision, even though the parents filed the appeal to the State Board more than 30 days after the local board voted to suspend the student.). Because the 30-day period for filing an appeal under OCGA § 20-2-1160 does not begin to run until a local board complies with the notice requirements of that Code section, a local board’s failure to comply with those notice provisions will not thwart a teacher’s right to appeal. See Shane W. v. Gwinnett County Bd. of Ed., State Bd. of Ed. Case No. 1986-37 (December 11,1986) (“If appeals are dismissed because of untimely filing when a local board fails to give actual notice, then the purpose [of OCGA § 20-2-1160’s notice requirements] is thwarted without any remedy.”). The State Board’s interpretation of the Fair Dismissal Act, “though not conclusive, is entitled to great weight.” (Footnote omitted.) Moulder v. Bartow County Bd. of Ed., 267 Ga. App. 339, 340 (599 SE2d 495) (2004).

As the Local Board contends, therefore, the State Board was not deprived of jurisdiction over the teachers’ appeals in these cases merely by the fact that the teachers filed their appeals more than 30 days after the Local Board voted, after receiving the findings and recommendation of the tribunal, not to renew their contracts. Indeed, because the Local Board failed to comply with the notice requirements of OCGA § 20-2-1160 (a), the teachers’ appeals were arguably premature. The Local Board, however, never moved to dismiss the teachers’ appeals on the basis of prematurity, but, to the contrary, has insisted throughout that the State Board had jurisdiction to hear the merits of the teachers’ appeals. Furthermore, only the Local Board had the power to issue a written decision and otherwise comply with OCGA § 20-2-1160 (a) so as to trigger the 30-day period for filing an appeal, yet it failed and refused to do so. Under the circumstances, we conclude that the State Board had jurisdiction over the teachers’ appeals, and the superior court erred in ruling otherwise. This error does not require reversal of the superior court’s judgments, however, for the reasons explained in Division 2, infra.

2. The Local Board contends that the State Board exceeded its authority in giving the teachers a substantive remedy, that is, reversing the Local Board’s decisions not to renew the teachers’ contracts, based on its finding that the Local Board failed to comply with the applicable statutory notice provisions. The Local Board contends that, although OCGA § 20-2-1160 (a) uses the commanding term “shall” in directing that a local board notify the parties involved of its decision and their appeal rights, the statute fails to establish any penalty for a local board’s failure to comply with those notice requirements. The Local Board contends that, as a result, the statutory timelines are merely directory in the absence of any resulting injury. The Local Board contends that, because the State Board did not dismiss the teachers’ appeals, the teachers were not injured by its failure to comply with the dictates of the statute. The Local Board contends that, under the circumstances, its failure to comply with the statutory timelines cannot be the basis for reversing its decisions.

We reject the underlying premise that OCGA § 20-2-1160 (a) fails to establish any penalty for a local board’s failure to comply with the procedural requirements of the statute. As noted earlier, OCGA § 20-2-1160 (a) provides that a decision of a local board “shall be binding on the parties[,] provided... that” the local board notifies the parties in writing of the decision, with notice of their right to appeal and how to obtain such an appeal. (Emphasis supplied.) The consequence of a local board’s failure to comply with the notice directive is inherent in the statute’s terms. Here, the plain meaning of “provided ... that” is conditional, that is, that the binding effect of the decision is conditioned upon the local board’s compliance with the notice requirements. Thus, when the converse situation exists, that is, when a local board fails to notify the parties in writing of the decision and their right to appeal to the State Board, with a clear description of the procedure and requirements for such an appeal, then the decision of the local board shall not be binding on the parties. By providing that a local board’s failure to notify the parties in writing of a decision, in the manner required, deprives the decision of any binding effect, OCGA § 20-2-1160 (a) imposes a very severe penalty from the perspective of a local board that has undertaken the process of non-renewal. Because in these cases the Local Board failed to notify the teachers in writing of its decisions and of their right to appeal, as required, the statute plainly dictates that the decisions of the Local Board are not binding on the parties. Because the Local Board failed to comply with OCGA § 20-2-1160 (a), the State Board did not err in declaring that the Local Board’s nonrenewal process was invalid as to these teachers. See Thebaut v. Ga. Bd. of Dentistry, 235 Ga. App. 194, 195 (1) (509 SE2d 125) (1998) (An agency decision or action will be invalidated where the applicable statute explicitly states that such is the penalty for noncompliance with the statute’s directives.).

Given the lack of any binding nonrenewal decision at the time the State Board considered the teachers’ appeals, and given the fact that the State Board did not review the sufficiency of the evidence adduced in support of nonrenewal, it might have been preferable for the State Board to have simply declared that the teachers’ contracts had been automatically renewed, rather than ruling that “the decision of the Local Board is reversed.” We look to the substance of the decisions of the State Board, however, and will not reverse on this basis. Accordingly, although the superior court erred in ruling that the State Board lacked jurisdiction over the teachers’ appeals, see Division 1, supra, the judgments of the superior court that affirmed the decisions of the State Board that reversed the decisions of the Local Board not to renew the teachers’ contracts are affirmed.

Decided January 24, 2014

Reconsideration denied February 5, 2014.

Carlock, Copeland & Stair, Thomas A. Cox, Marquetta J. Bryan, for appellant.

Orr & Brown, Kristine O. Brown, Borquaye A. Thomas, Cerrone G. Coker, for appellees.

Judgments affirmed.

Phipps, C. J., and Branch, J., concur.

       This Court granted the Local Board’s applications for discretionary appeal. See OCGA § 5-6-35 (a) (1). As detailed below, Case No. A13A2088 concerns the Local Board’s decision not to renew the contract of Burnedetta Wilmer, and Case No. A13A2094 concerns the Local Board’s decision not to renew the contract of Gala Rachele.

       See also Boone v. Atlanta Independent School System, 275 Ga. App. 131, 132, n. 1 (619 SE2d 708) (2005) (“A tenured teacher is one who accepts a school year contract for the fourth consecutive school year from the same local board of education. OCGA § 20-2-942 (b) (1).”) (punctuation omitted); Moulder v. Bartow County Bd. of Ed., 267 Ga. App. 339, 341 (599 SE2d 495) (2004) (“OCGA § 20-2-942 is Georgia’s teacher tenure statute.”); OCGA § 20-2-942 (b) (1) (“A teacher who accepts a school year contract for the fourth consecutive school year from the same local board of education may be demoted or the teacher’s contract may not be renewed only for those reasons set forth in subsection (a) of [OCGA §] 20-2-940.”), (b) (3) (“Ateacher is deemed to have accepted a fourth consecutive school year contract if, while the teacher is serving under the third consecutive school year contract, the local board does not serve notice on the teacher by April 15 that it intends not to renew the teacher’s contract for the ensuing school year, and the teacher does not serve notice in writing on the local board of education by May 1 of the third consecutive school year that he or she does not accept the fourth consecutive school year contract.”).

       OCGA § 20-2-942 (b) (2) provides, in pertinent part, that, [i] n order to.. .fail to renew the contract of a [tenured] teacher..., the teacher must be given written notice of the intention to . . . not renew the contract of the teacher. ... A teacher who is so notified . . . that his or her contract will not be renewed has the right to the procedures set forth in subsections (b) through (f) of [OCGA §] 20-2-940 before the intended action is taken. See also OCGÁ § 20-2-940 (a) (grounds for nonrenewal).

       OCGA § 20-2-211 (b); Hall v. Nelson, 282 Ga. 441, 445-446 (5) (651 SE2d 72) (2007); Boone v. Atlanta Independent School System, 275 Ga. App. at 132; Moulder v. Bartow County Bd. of Ed., 267 Ga. App. at 341; Woodland v. Richmond County Bd. of Ed., State Bd. of Ed. Case No. 2011-27; Peddle v. Cobb County Bd. of Ed., State Bd. of Ed. Case No. 1985-31 (November 14, 1985).

       The required written notice of the intention not to renew the contract of a tenured teacher shall contain a conspicuous statement in substantially the following form:
      You have the right to certain procedural safeguards before you can be demoted or dismissed. These safeguards include the right to notice of the reasons for the action against you and the right to a hearing. If you desire these rights you must send to the school superintendent by certified mail or statutory overnight delivery a statement that you wish to have a hearing; and such statement must be mailed to the school superintendent within 20 days after this notice was mailed to you. Your rights are governed by [OCGA §§] 20-2-211 [(b)], . . . 20-2-940, and... 20-2-942 through 20-2-947, and a copy of this law is enclosed.
      OCGA § 20-2-942 (b) (2).

       Under OCGA § 20-2-940 (b),
      written notice of the charges shall be given at least ten days before the date set for hearing and shall state:
      (1) The cause or causes for his or her discharge, suspension, or demotion in sufficient detail to enable him or her fairly to show any error that may exist therein;
      (2) The names of the known witnesses and a concise summary of the evidence to be used against him or her. The names of new witnesses shall be given as soon as practicable;
      (3) The time and place where the hearing thereon will be held; and
      (4) That the charged teacher or other person, upon request, shall be furnished with compulsory process or subpoena legally requiring the attendance of witnesses and the production of documents and other papers as provided by law.

       Black’s Law Dictionary (9th ed. 2009) (defining “appellate jurisdiction” as “[t]he power of a court to review and revise a lower court’s decision”); Fullwood v. Sivley, 271 Ga. 248, 250-252 (517 SE2d 511) (1999) (The provisions of the law respecting the procedure to be followed in perfecting appeals to the appellate courts, including time limits, are jurisdictional and must be uniformly enforced by the appellate courts. Unless an appellate court has jurisdiction over a case, “it is without power or authority to render a judgment upon review.”) (citation and punctuation omitted).

       See also Ga. Subsequent Injury Trust Fund v. ITT-Rayonier, 198 Ga. App. 467 (402 SE2d 54) (1991) (accord); State of Ga. v. Brantley, 147 Ga. App. 569, 570 (249 SE2d 365) (1978) (accord).

       As a prime example, the proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon this Court or upon the Supreme Court of Georgia under the Appellate Practice Act, OCGA § 5-6-30 et seq. See OCGA §§ 5-6-33; 5-6-34; 5-6-35 (application of the Appellate Practice Act); 5-6-38 (a) (“Anotice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of; but when a motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict has been filed, the notice shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.”); 5-6-39 (authorizing limited extensions of time); 5-6-48 (b) (1) (authorizing dismissal of an appeal “[f]or failure to file notice of appeal within the time required as provided in [the Appellate Practice Act] or within any extension of time granted [t]hereunder”); see also Gable v. State, 290 Ga. 81, 82-83 (2) (a) (720 SE2d 170) (2011) (“[Compliance with the statutory deadline for filing a notice of appeal is an absolute requirement to confer jurisdiction on an appellate court” under the Appellate Practice Act.) (citations and punctuation omitted); Jordan v. Caldwell, 229 Ga. 343, 344 (191 SE2d 530) (1972) (Under the Appellate Practice Act, “[t]he proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.... [T]he burden is on the party desiring to take the appeal to determine when the judgment is filed in the trial court, and the burden is on the party desiring to appeal to file his notice of appeal within the 30-day period or within a duly authorized extension of the 30-day period.”).

       See, e.g., Josh W. v. Gwinnett County Bd. of Ed., State Bd. of Ed. Case No. 1991-15 (June 13,1991) (dismissing a student’s appeal from the local board’s decision to expel him on the basis that the student’s failure to file his appeal within 30 days after the local board’s decision deprived the State Board of jurisdiction); Coleman v. Paulding County Bd. of Ed., State Bd. of Ed. Case No. 1989-03 (April 13, 1989) (dismissing a bus driver’s appeal from the local board’s decision to award a particular route to another driver on the basis that the driver’s failure to file his appeal within 30 days after the local board’s decision deprived the State Board of jurisdiction).

        Cooper v. Gwinnett County Bd. of Ed., 157 Ga. App. 289, 289-290 (277 SE2d 285) (1981) (Where a teacher filed a notice of appeal from a decision of the State Board in the superior court, instead of with the State Board as required by statute, the superior court did not have “jurisdiction to review the decision sought to be appealed because of the failure to confer jurisdiction upon that court pursuant to the statute.” As a result, the proper disposition by the superior court was dismissal of the appeal.) (citations and punctuation omitted); see also Elbert County Bd. of Ed. v. Gurley, 215 Ga. App. 205, 206 (450 SE2d 258) (1994) (accord).

       For an example of such a statutory provision, see OCGA § 5-3-27, which is part of the statutory chapter that provides for appeals to the superior court from decisions made by the probate courts, OCGA § 5-3-2 et seq. OCGA § 5-3-27 provides that “the superior court shall at any time permit such amendments and enter such orders as may be necessary to cure [any] defect” in a notice of appeal from a decision made by a probate court. Based on this provision, the Supreme Court of Georgia held that, where the appellant filed a timely notice of appeal but filed it in the superior court, rather than in the probate court as required, the superior court did not err in exercising jurisdiction over the appeal. Mack v. Demming, 248 Ga. 117, 119 (6) (281 SE2d 591) (1981).

       By contrast, under the Appellate Practice Act, the time for initiating an appeal begins to run with the “entry of the appealable decision or judgment complained of,” and the Act “provides its own internal definition as to what constitutes the entry of a judgment: [t]he filing with the clerk of a judgment, signed by the judge, constitutes the entry of a judgment within the meaning of [the Act].” (Citations and punctuation omitted.) GMC Group v. Harsco Corp., 293 Ga. App. 707 (667 SE2d 916) (2008), quoting OCGA § 5-6-31.

       We note that the State Board departed somewhat from its own precedent on the issue in McClain v. Griffin-Spalding County Bd. of Ed., State Bd. of Ed. Case No. 1998-50 (March 11, 1999), and C. K. F. v. Peach County Bd. of Ed., State Bd. of Ed. Case No. 1993-29 (September 9, 1993). In McClain v. Griffin-Spalding County Bd. of Ed., the State Board held that, if a local board gives the parties notice of an adverse decision and in that notice discloses the date the local board reached its decision, the time for filing a notice of appeal under OCGA § 20-2-1160 (b) begins to run on the date the local board rules against the appellant. In that case, the State Board dismissed an appeal filed by a teacher from the local board’s decision to terminate his teaching contract, even though the teacher filed his appeal within 30 days after the local board issued its written decision (on July 2, 1998), because, when the local board issued its written decision, it advised the teacher that it had made its decision three days earlier (on June 30, 1998). In allowing the local board to shorten the teacher’s time to appeal in this way, the State Board relied on its previous decision in C. K. F. v. Peach County Bd. of Ed., State Bd. of Ed. Case No. 1993-29 (September 9, 1993), where it stated that a local board’s decision “will be deemed to have been made on the date of the notice [of a decision] if the notice does not give the date of the decision; if the notice gives the date of the decision, [on the other hand,] then that date will be deemed the date of decision.” To the extent that these two decisions, which did not discuss the importance of the notice provisions of OCGA § 20-2-1160 (a), are inconsistent with the State Board’s well-reasoned analysis in White v. Lamar County Bd. of Ed., State Bd. of Ed. Case No. 1987-14 and Shane W. v. Gwinnett County Bd. of Ed., State Bd. of Ed. Case No. 1986-37 (December 11, 1986), we disapprove them.

       See OCGA § 5-6-34 (a) (appeals under the Appellate Practice Act from final judgments); Christopher J. McFadden et al., Ga. Appellate Practice § 11:17 (updated November 2013) (discussing when a notice of appeal filed before entry of judgment will be deemed timely). We note that the Education Code neither expressly provides for interlocutory appeals, nor expressly prohibits them. Cf. OCGA § 5-6-34 (b) (providing for applications for interlocutory appeal under the Appellate Practice Act).

       See Charles H. Wesley Ed. Foundation v. State Election Ed., 282 Ga. 707, 709 (2) (654 SE2d 127) (2007) (“[L]anguage contained in a statute which, given its ordinary meaning, commands the doing of a thing within a certain time, when not accompanied by any negative words restraining the doing of the thing afterward, will generally be construed as merely directory and not as a limitation of authority, and this is especially so where no injury appeared to have resulted from the fact that the thing was done after the time limited by the plain wording of the Act.”) (citations and punctuation omitted); Glass v. City of Atlanta, 293 Ga. App. 11, 15 (2) (666 SE2d 406) (2008) (“P]n the absence of injury to the defendant, a statute which directs that some act be done within a given time period, but prescribes no penalty for not doing it within that time, is not mandatory but directory; that is, . . . in such instances ‘shall’ denotes simple futurity rather than a command.”) (citation and punctuation omitted). We note that the State Board and the superior court found that there is no statutory penalty in either OCGA § 20-2-940 (f) or 20-2-1160 (a) for a local board’s failure to timely do what the statutes direct, but went on to find that each teacher had been substantially injured by the Local Board’s violation of its statutory duties and that, as a result, the procedural requirements were mandatory under the circumstances. See footnote 18, infra.

       See OCGA § 1-3-1 (c) (“A substantial compliance with any statutory requirement, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law.”) (emphasis supplied).

       Because we have rejected the premise that OCGA § 20-2-1160 (a) provides no penalty for a local board’s failure to comply with the statute’s notice requirements, it follows that those requirements are not merely directory in the absence of any resulting injury. Consequently, the Local Board’s argument that the State Board and the superior court erred in finding that the teachers were injured by its (the Local Board’s) procedural faults is moot.

       See also Whisenant v. Douglas County Bd. of Ed., State Bd. of Ed. Case No. 1997-52 (March 12, 1998) (Noting that a local board is subject to mandatory requirements under OCGA § 20-2-940 that, when a tribunal conducts a hearing, the local board must issue a decision within 10 days after it receives the transcript, the State Board reversed a decision of a local board to terminate a teacher’s contract because it violated the teacher’s procedural due process rights when it failed to issue its decision within the time allowed.); Peddle v. Cobb County Bd. of Ed., State Bd. of Ed. Case No. 1985-31 (November 14, 1985) (Holding that the 14-day time limit imposed by OCGA § 20-2-942 (b) (2) for a local board to respond to a tenured teacher’s timely request for notice of the causes for the local board’s decision not to renew the teacher’s contract is mandatory, not discretionary, the State Board held that a decision of a local board not to renew a teacher’s contract was not binding, entitling the teacher to reinstatement, because the local board failed to give the teacher written notice of the causes for nonrenewal within 14 days after the teacher’s request.).

       See OCGA § 20-2-1160 (e) (“Neither the state board nor the superior court shall consider any question in matters before the local board nor consider the matter de novo, and the review by the state board or the superior court shall be confined to the record. In the superior court, the appeal shall be determined by the judge sitting without a jury.”); Chattooga County Bd. of Ed. v. Searels, 302 Ga. App. 731, 732 (691 SE2d 629) (2010) (The State Board, the superior court, and the Court of Appeals all apply the “any evidence” standard of review to the record supporting the initial decision of the Local Board.); Moulder v. Bartow County Bd. of Ed., 267 Ga. App. at 340 (“[W]hen reviewing decisions of a local board, both the State Board and superior court sit as appellate bodies applying an ‘any evidence’ rule to the facts of the case.”) (footnote omitted); Johnson v. Pulaski County Bd. of Ed., 231 Ga. App. 576,577 (1) (499 SE2d 345) (1998) (“[T]he courts will not interfere with a local board’s administration of its schools unless the board’s actions are contrary to law or it appears that the board has grossly abused its discretion.”) (citation and punctuation omitted); Ransum v. Chattooga Bd. of Ed., 144 Ga. App. 783, 785 (5) (242 SE2d 374) (1978) (The superior court applies the “any evidence” rule to a decision of the local board. Under former Ga. Code Ann. § 32-910 (now codified as OCGA § 20-2-1160 (e)), “[njeither the state board nor the superior court is authorized to consider a matter de novo from the local board.” The superior court acts as an appellate body and, if it finds that there existed evidence sufficient to support the decision of the local board, the superior court is bound to affirm it.) (citations and punctuation omitted).

       The Local Board suggests that if its nonrenewal decision “must be overturned, [then] an . . . incompetent teacher [will] be returned to the classroom to continue to fail the students of Clayton County, solely because written notice of the [Ljocal [BJoard’s decision was not delivered to the teacher within ten days of the Board’s vote to affirm the recommendation of the hearing tribunal to uphold the Superintendent’s recommendation to terminate the teacher.” Not so. Under appropriate circumstances, a teacher under contract may certainly be relieved of classroom duties, as long as any new assignment does not constitute an unauthorized demotion. Hall v. Nelson, 282 Ga. at 445 (5).


author: Dillard, Judge.

text:
    A13A2243.
    OLIVER v. THE STATE.
    (753 SE2d 468)
   Dillard, Judge.

Following a bench trial, Angela Oliver was convicted of aggravated stalking. On appeal, Oliver contends that the evidence was insufficient to support her conviction and that the trial court erred in finding that she knowingly waived her right to a jury trial. For the reasons set forth infra, we affirm.

Construing the evidence to uphold the trial court’s findings and judgment, the record shows that Oliver has a long history of mental health and drug abuse problems. And because of these personal issues (in part), she lived with her mother, Ruby Goss, for a significant part of her adult life. But over the course of time, this living arrangement became precarious due to Oliver’s increasingly volatile and violent behavior toward her mother. Consequently, on July 24, 2009, Goss sought and obtained a family violence ex parte protective order, which ordered Oliver to stay away from Goss’s residence, prohibited her from approaching within 100 yards of Goss, and also prohibited her from having any direct or indirect contact with Goss. And five days after the superior court issued this protective order, a sheriff’s deputy served Oliver with the order and read to her its specific provisions.

Nevertheless, on August 3, 2009, Oliver telephoned Goss at her home, informed her that she was coming over, and told her to call an ambulance because she had overdosed on tranquilizers in an attempt to commit suicide. Goss urged Oliver not to come to her house and, immediately thereafter, called the sheriff’s department. But before law enforcement could respond, Oliver arrived at Goss’s home, having been driven there by an unknown male friend, and began knocking on the front door. Goss refused Oliver’s requests to be allowed inside the residence, and only briefly opened the door to give her daughter a soft drink, after which she re-locked the door and waited for the sheriff’s deputy to arrive. A few minutes later, an ambulance and a sheriff’s deputy arrived on the scene and found Oliver at the front door of the home still yelling for Goss to let her inside. At that point, however, the deputy—who coincidentally had served Oliver with the ex parte protective order—calmed Oliver down, and the ambulance then transported her to the hospital.

Oliver was later arrested and indicted on one count of aggravated stalking. Thereafter, and nearly two weeks before her scheduled trial, Oliver’s counsel filed a waiver of jury trial, which both Oliver and her counsel signed. And at the start of her trial, the court inquired whether Oliver was waiving her right to a jury trial, to which Oliver’s counsel replied in the affirmative in her presence. A bench trial then ensued, during which Goss, the arresting sheriff’s deputy, and Oliver testified. And at the trial’s conclusion, the court found Oliver guilty of aggravated stalking.

Subsequently, Oliver obtained new counsel and filed a motion for new trial. But after holding a hearing, during which Oliver’s trial counsel testified, the trial court denied Oliver’s motion. This appeal follows.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. And in evaluating the sufficiency of the evidence, “we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” Accordingly, the trier of fact’s guilty verdict will be upheld “as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.” With these guiding principles in mind, we turn now to Oliver’s specific claims of error.

1. Oliver contends that the evidence was insufficient to support her conviction of aggravated stalking. Specifically, she argues that the State failed to prove that she engaged in a pattern of harassing and intimidating behavior toward Goss. We do not agree.

Under OCGA § 16-5-91 (a),

[a] person commits the offense of aggravated stalking when such person, in violation of a . . . temporary protective order, . . . follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.

And the term “harassing and intimidating” is defined in the simple stalking statute, as “a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety ... by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.”

In light of the “plain terms of the stalking statutes, a single violation of a protective order, by itself, does not amount to aggravated stalking.” Rather, the “harassing and intimidating” conduct must be established by, inter alia, “a pattern of harassing and intimidating behavior.” And a single violation of a protective order, standing alone, “simply does not establish ‘a pattern of harassing and intimidating behavior.’ ” That said, OCGA § 16-5-91 does prohibit “even a single violation of a protective order ¿/that violation is part of a pattern of harassing and intimidating behavior.” Furthermore, in determining whether the evidence shows a pattern of harassing and intimidating behavior, the jury can consider any number of factors, including, but not limited to, “the prior history between the parties, the defendant’s surreptitious conduct, as well as [her] overtly confrontational acts, and any attempts by the defendant to contact, communicate with, or control the victim indirectly, as through third parties.”

And here, as noted supra, Goss testified that in the time leading up to her obtaining the protective order, Oliver became increasingly volatile and violent toward her. Then, less than two weeks after Goss obtained the protective order, Oliver violated it with impunity. Given these circumstances, we find that the trial court was authorized to find Oliver guilty of aggravated stalking. And even if we assume arguendo that the earlier volatile and violent behavior by Oliver did not show a pattern of harassing and intimidating behavior, evidence of what occurred on August 3, 2009, is more than sufficient to do so. On that day, Oliver repeatedly violated the protective order by (1) calling Goss, (2) appearing at her home, (3) knocking on her door, (4) yelling and screaming at Goss, (5) demanding that Goss allow her inside the residence, and (6) refusing to leave the property despite numerous requests by Goss. Suffice it to say, this clearly amounts to a series of successive actions that would authorize the trial court to find a pattern of harassing and intimidating behavior by Oliver toward Goss.

2. Oliver further contends that the evidence was insufficient to support her conviction because the State failed to prove that her contact with Goss on the day she violated the protective order was done for the purpose of harassing and intimidating Goss. Again, we disagree.

To begin with, a defendant need not engage in “unequivocally hostile conduct or make explicit threats in order to be convicted of stalking.” And even behavior that is not overtly threatening can provide “the requisite degree of intimidation and harassment if it is ongoing, repetitious, and engaged in despite the communicated wishes of the victim.”

In this matter, although Oliver testified that she called Goss and went to her home not for purposes of harassment but rather to seek help after she took a number of tranquilizers in an attempt to commit suicide, “it was solely for the [trial court], viewing that testimony in light of the other evidence, to assess [Oliver’s] credibility and determine whether [her] testimony was truthful.” And given that Oliver contacted Goss rather than calling an ambulance herself, and then had a friend drive her to Goss’s home instead of to a hospital (at which point she belligerently yelled and screamed at Goss to let her inside the home), there was certainly evidence authorizing the trial court to be skeptical of her testimony. Indeed, if the trial court concluded that her testimony “was not truthful, as we must assume it did, the [trial court] was entitled to take [her] untruthfulness as substantive and affirmative evidence of [her] guilt.”

3. Oliver also contends that the trial court erred in finding that she knowingly waived her right to a jury trial. Once again, we disagree.

It is well established that a criminal defendant must “personally and intelligently participate in the waiver of the constitutional right to a trial by jury.” It is equally well established that when the purported waiver of this right is called into question, the State bears the burden of demonstrating that

the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.

And such extrinsic evidence may include “testimony by defense counsel in the motion for new trial hearing about his specific recollections, routine, or standard practices', an affidavit from trial counsel about his specific recollections; and evidence regarding the defendant’s intelligence and cognitive ability.” Furthermore, the question of whether a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is “to be answered by the trial judge and will be accepted by this court unless such determination is clearly erroneous.”

Here, as noted supra, nearly two weeks before her scheduled trial, Oliver’s counsel filed a waiver of jury trial, which both Oliver and her counsel signed. And at the beginning of her trial, the trial court asked Oliver’s counsel if she was waiving her right to a jury trial and counsel—in Oliver’s presence—responded affirmatively. Furthermore, although Oliver’s trial counsel testified at the motion-for-new-trial hearing that she did not have a specific recollection of discussing waiving a jury trial with Oliver, she indicated that it was her usual practice to do so. Additionally, Oliver’s trial counsel stated that she routinely discusses trial strategy with her clients and testified in some detail regarding the fact she thought a bench trial would be a better tactic in Oliver’s situation because a judge—as opposed to a jury—would be more amenable to a defense based on Oliver’s mental health issues. Oliver did not testify during the motion-for-new-trial hearing and presented no evidence contradicting her counsel’s testimony. Accordingly, given Oliver’s signature on the waiver of jury trial and the extrinsic evidence in the form of Oliver’s trial counsel’s testimony regarding the fact that she routinely discusses such waiver and trial strategy issues with her clients, we cannot conclude that the trial court was clearly erroneous in finding that Oliver knowingly and intelligently waived her right to a jury trial.

Decided January 27, 2014

Reconsideration denied February 5, 2014.

Mark R. Jeffrey, for appellant.

DavidMcDade, District Attorney, Emily K. Richardson, James A. Dooley, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, P. J., and McMillian, J., concur.

        See Hammont v. State, 309 Ga. App. 395, 396 (710 SE2d 598) (2011).

        See, e.g., English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010).

        Joiner v. State, 299 Ga. App. 300, 300 (682 SE2d 381) (2009); accord Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        Nassau v. State, 311 Ga. App. 438, 440-41 (715 SE2d 837) (2011) (punctuation omitted).

       OCGA § 16-5-91 (a).

        See State v. Burke, 287 Ga. 377, 378 (695 SE2d 649) (2010) (noting that “[t]he definition contained in the simple stalking statute is applicable here, because the legislature has made clear that the simple stalking statute defines ‘harassing and intimidating’ ‘for purposes of the entire article on stalking in the Georgia Code.’ ” (punctuation omitted)); OCGA § 16-5-90 (a) (1).

       OCGA § 16-5-90 (a) (1) (emphasis supplied).

        Burke, 287 Ga. at 378 (emphasis supplied); accord Herbert v. State, 311 Ga. App. 396, 398 (715 SE2d 795) (2011); Louisyr v. State, 307 Ga. App. 724, 728 (1) (706 SE2d 114) (2011).

        Burke, 287 Ga. at 379 (punctuation omitted).

       Like Herbert, the case sub judice does not present the “unique circumstances” at issue in Burke. Herbert, 311 Ga. App. at 399. In Burke, the State sought to prove aggravated stalking by establishing only that the defendant violated a protective order, “a strategy that eliminated any basis for establishing a ‘pattern’ of harassing and intimidating behavior.” 287 Ga. at 379. Indeed, the State incorrectly stated the law to the jury in Burke, claiming “that it did not have to prove more than one contact; it only had to prove a violation of a court order.” Burke v. State, 297 Ga. App. 38, 42 (676 SE2d 766) (2009).

        Burke, 287 Ga. at 379 (punctuation omitted).

        Herbert, 311 Ga. App. at 399; accord Louisyr, 307 Ga. App. at 729 (1).

        Herbert, 311 Ga. App. at 399 (punctuation omitted).

        See Hervey v. State, 308 Ga. App. 290, 291-92 (707 SE2d 189) (2011) (holding that evidence was sufficient to support defendant’s aggravated stalking conviction even though victim did not provide specific details regarding defendant’s pattern of harassing and intimidating behavior).

        See Herbert, 311 Ga. App. at 399, n. 4 (holding that defendant’s series of actions toward the victim on the day he violated the protective order was sufficient evidence that defendant engaged in a pattern of harassing and intimidating behavior).

        Placanica v. State, 303 Ga. App. 302, 304 (693 SE2d 571) (2010) (punctuation omitted).

        Id. (punctuation omitted); see Maskivish v. State, 276 Ga. App. 701, 703 (1) (b) (624 SE2d 160) (2005) (noting that a defendant’s conduct need not be overtly threatening to constitute stalking).

        Louisyr, 307 Ga. App. at 730 (1).

        Id. (punctuation omitted).

        Seitman v. State, 320 Ga. App. 646, 646 (740 SE2d 368) (2013) (punctuation omitted).

        Id. (punctuation omitted); accord Balbosa v. State, 275 Ga. 574, 575 (1) (571 SE2d 368) (2002).

        Jones v. State, 294 Ga. App. 169, 170 (1) (670 SE2d 104) (2008) (punctuation omitted; emphasis supplied).

        Seitman, 320 Ga. App. at 646 (punctuation omitted); accord Jones, 294 Ga. App. at 169 (1).

        See Seitman, 320 Ga. App. at 646-48 (holding that defendant’s signature on a waiver of right to jury trial and her counsel’s testimony that he discussed waiver with her supported trial court’s conclusion that defendant knowingly and intelligently waived her right to a jury trial); Jackson v. State, 257 Ga. App. 715, 717 (4) (572 SE2d 60) (2002) (holding that defendant’s signature on waiver of jury trial form supported trial court’s finding that defendant knowingly waived his right to a jury trial). Compare Balbosa, 275 Ga. at 575 (1) (holding that State failed to establish that defendant knowingly and intelligently waived his right to jury trial when the record showed only oral waiver by counsel in appellant’s presence).