author: Boggs, Judge. BARNES, Presiding Judge,

text:
    A16A0362.
    THE STATE v. DOMENGE-DELHOYO.
    (790 SE2d 139)
   Boggs, Judge.

In this DUI and hit-and-run case, the State appeals from the trial court’s order granting Monique Domenge-Delhoyo’s motion to suppress the results of a state-administered blood test. The State asserts that the trial court erred in concluding that Domenge-Delhoyo did not actually consent to the state-administered blood test under the totality of the circumstances. For the reasons explained below, we agree and reverse.

“In this Court’s review of a trial court’s grant or denial of a motion to suppress, the trial court’s findings on disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed facts is subject to de novo review. [Cit.]” Barrett v. State, 289 Ga. 197, 200 (1) (709 SE2d 816) (2011). See also Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015); State v. Bowman, 337 Ga. App. 313, 314 (787 SE2d 284) (2016). Based upon the video recording of Domenge-Delhoyo’s encounter with the police at the time of her arrest and the reading of the implied consent warning, we will conduct a de novo review of this issue. See State v. Depol, 336 Ga. App. 191 (784 SE2d 51) (2016) (conducting de novo review of defendant’s actual consent to breath test because “controlling facts are undisputed because they are plainly discernable from the patrol car-mounted video recording”) (citations and punctuation omitted).

The evidence presented at the motion to suppress hearing shows that on August 29,2014, sometime between 11:00 p.m. and midnight, Domenge-Delhoyo sideswiped the passenger side of a car traveling in the same direction as she passed in the right lane. A witness described it as sounding like “tire on metal” contact. She did not stop or slow down even though the hubcap of the other car came off and the passenger side mirror was dangling. When the driver of the car caught up with her at the next intersection about a half mile away, he informed her that she had hit his car and asked her to pull into a nearby parking lot. She seemed genuinely surprised to learn that she had struck his vehicle. In the parking lot, the car’s driver determined that there was “no real bodily damage” to his car, and it is undisputed that he was not hurt. When the driver asked Domenge-Delhoyo if she had been drinking, she said “no,” and the driver “thought maybe she was in her right mind.” He did not smell alcohol, “she spoke pretty well,” and nothing made him believe that she was intoxicated other than the fact that she had hit his car without realizing it. He did notice that her eyes were glassy-looking and red.

When the car’s driver noticed that a police officer was parked nearby, he reported the accident at the request of the person whose car he was driving. When the patrol officer questioned Domenge-Delhoyo about the car wreck and what had happened, she responded, “I just screwed up,” explaining “that she had felt something but she wasn’t sure what it was.” The officer did not smell any alcohol, but based on the “huge delay” of “five to ten seconds” between his questions and her response, he “assumed she was under some sort of narcotic” and contacted a DUI specialist to assist him.

After the DUI officer arrived, he spoke with Domenge-Delhoyo and made the same observations about her as the first officer, except that he smelled “a very faint odor of an alcoholic beverage coming from her breath.” She initially denied drinking, but when the officer challenged her by stating that he could smell the odor of alcohol on her breath, she admitted “that she had one beer that night.” When he asked her to step out of the truck, “[h]er exit was slow,” and she had to hold on to the truck to steady herself. When he asked her to walk to the front of his patrol car (where the video camera was mounted), “[s]he was unsteady on her feet as she walked.” The officer testified that as he continued to speak with her, Domenge-Delhoyo “seemed very annoyed at my questions . . . almost as if she didn’t want to answer them. I guess kind of evasive.” The video recording supports this testimony

Toward the end of the DUI officer’s conversation with Domenge-Delhoyo, he stated:

You see how this looks, right? I mean initially you told the officer you hadn’t had nothing to drink and all of a sudden now it’s one. And you sideswipe another car. I mean there really is no other explanation for it, I mean,... a couple of things are happening here (a) you were really distracted or (b). . . .

At this point, Domenge-Delhoyo interrupted the officer and stated that she was distracted. The officer then asked if he could check her to make sure she was safe to drive. After Domenge-Delhoyo asked, “What does that mean?,” the officer replied that there were some field sobriety evaluations that he would like to do. When she asked if she had to oblige and do it, he told her that they were “completely voluntary,” but if he had to make a decision to arrest, he wanted to do it based upon the most information he possibly could. He stated that he could smell alcohol on her breath and “[s]o, do I believe that you had the one? Maybe, maybe not. I don’t know that you had just the one... sideswiping another car on a road and it’s not very busy out,... so... no?” After Domenge-Delhoyo again responded “nope,” the officer deliberated quietly for about 15 seconds before telling Domenge-Delhoyo to put her hands behind her back because she was under arrest for DUI.

As the officer attempted to take one of her arms and place it behind her back, Domenge-Delhoyo turned toward the officer stating, “What?” and placed her other hand on his to stop him. As she continued to wiggle and struggle against being placed in handcuffs for about 10 seconds, the officers told her to “stop moving,” to “stop resisting,” and to “relax.” As both officers on the scene began to get her arms under control, Domenge-Delhoyo then asked, “Aren’t you going to check me?” When the officer responded, “You said you didn’t want to,” Domenge-Delhoyo emphatically stated, “No. I want to.” The officers then released her hands, and the DUI officer told Domenge-Delhoyo, “Okay,. .. I’ve already told you you’re under arrest, okay, so because of that I gotta read you Miranda. These are your rights, okay.” He then stated:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to a lawyer and have him present for any questioning if you wish. If you cannot afford a lawyer one will be appointed to you to represent you before any questioning if you decide to exercise these rights and not answer any questions or make any statement. Do you understand these rights as I have read them to you?

Domenge-Delhoyo stated, “Yep,” and the officer asked again, “Having these rights in mind, do you still want to do . . . the field sobriety evaluations?” and she confirmed, “Yeah.” The officer then asked screening questions about her vision, injuries, and any medication. Domenge-Delhoyo informed him that she took Xanax for depression and had taken her normal dose that morning.

The officer’s field sobriety evaluation revealed six out of six clues on the horizontal gaze nystagmus, six out of eight clues on the walk and turn, and two out of four clues on the one leg stand. It took approximately ten minutes to complete these evaluations. When the officer took out an alco-sensor device, he explained to Domenge-Delhoyo that it would only reveal whether there was or was not alcohol present on her breath. After he unwrapped it and asked her to blow, Domenge-Delhoyo asked, “Wait, can I like decline that?” The officer informed her that it was completely voluntary, and she stated that she would decline it.

The officer then stated again that she was under arrest for DUI and asked her to place her hands behind her back, while Domenge-Delhoyo immediately began interjecting that she would take it. The video recording shows that for approximately 30 seconds, she wiggled her arms and struggled against the two officers who carefully attempted to place her hands behind her back, all the while asking her to “relax” and “stop moving.” At one point, the patrol officer quietly and calmly told her that they would have to put her on the ground if she did not cooperate. They nonetheless kept carefully trying to get her hands behind her back while she was standing, but when the DUI officer took a hand off one of her arms to reach for his handcuffs, the patrol officer stated, “I’m losing her.” At that point, the patrol officer performed a quick maneuver in which he moved one of Domenge-Delhoyo’s forearms upward behind her back and then pushed her face-down onto the hood of the patrol car. While the open palm of her free hand and arm hit the hood before her body and made a loud sound, there was no loud sound when her body first touched the patrol car. After gaining control of Domenge-Delhoyo while she was against the hood of the car, the officers were finally able to place her in handcuffs. During the entire struggle, Domenge-Delhoyo repeatedly offered to take the test, but the officers informed her that they were “beyond that.”

Once Domenge-Delhoyo was placed in handcuffs, the patrol officer immediately helped her back to a standing position. After searching her pockets, the DUI officer informed her that she needed to move to the passenger side of his car. While walking, she asked the officer if she could have her shoes and the officer told her he “would grab them in a second.” He can be heard opening the car door and asking her to have a seat. He then immediately told her, “Anytime someone’s placed under arrest in the State of Georgia for DUI, there’s a statement we gotta read; there’s gonna be a question at the end. This is called the Georgia Implied Consent Notice.”

The officer read the following statement:

Georgia law requires you to submit to the state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your blood under the implied consent law?

After he finished reading, Domenge-Delhoyo was silent for approximately six seconds before the officer asked, “Is that going to be a yes or a no?” Domenge-Delhoyo immediately replied, “yep.” The officer clarified, “Yeah?” and she immediately stated again, “Yeah.”

The DUI officer transported Domenge-Delhoyo to Gwinnett Medical Center, where medical personnel drew her blood at 1:27 a.m. At no time during the blood draw did Domenge-Delhoyo indicate that she did not want her blood drawn. A hospital supervisor testified that the hospital requires every suspect who is brought in for a blood draw by the police to sign a consent form and that copies of these forms are maintained in the ordinary course of business. If a suspect refuses, the hospital will not draw the blood.

The hospital’s records include a consent form signed by the officer with a typed registration sticker with Domenge-Delhoyo’s name, date of birth, and an admission date affixed to it. This form states:

I request that the above specimen(s) be obtained from the person named above for purpose of chemical testing to determine the presence of alcohol or any other drug in accordance with Georgia law. I certify that I am a law enforcement officer authorized to request such tests and that the person has been arrested for an offense pursuant to which I can request a specimen under Georgia law. I have properly advised the person, if conscious, of his or her rights under Georgia law.
PATIENT CONSENT TO COLLECTION OF SPECIMEN
A. CONSENT. I consent to the collection and testing of the above specimen(s) for the presence of alcohol or any other drug. I understand that I am permitted to refuse this test. I understand that the specimen(s) will not be tested by Gwin-nett Hospital System, but will be sent to the State Crime Laboratory for testing. I understand that I am permitted to have additional test(s) performed by a qualified person of my own choosing at my own expense. I voluntarily consent to the collection of the specimen(s) and to release of those specimen^) as stated above.
B. REFUSAL. I refuse to consent to collection and testing of the specimen(s) identified above. I have been informed by the officer requesting the test of the consequences of the refusal.

The officer signed under the first paragraph and indicated that a blood test was desired. The form includes a signature for the patient under Part A, titled “CONSENT,” as well as a signature for a witness to the consent, and both show a time and date.

Domenge-Delhoyo filed a motion in limine to exclude the blood test on numerous statutory grounds, including that she was not properly and timely advised of her implied consent rights. Six months later, she filed a brief asserting that the state-administered test results should be excluded because the State would not be able to demonstrate, under the totality of the circumstances analysis of Williams v. State, 296 Ga. 817 (771 SE2d 373) (2015), that she had freely and voluntarily consented to the test. In the hearing on the various motions filed by Domenge-Delhoyo, her counsel argued only the following issues: the validity of the initial detention; whether or not there was reasonable articulable suspicion to expand the scope of the stop from the initial detention; the sufficiency of the Miranda warning; the Williams issue regarding the validity of the consent to the blood test; and the qualifications of the person who drew her blood at the hospital. Defense counsel made no argument concerning any delay between arrest and the reading of the implied consent notice.

Following the hearing, the trial court issued a written order granting Domenge-Delhoyo’s motion to suppress based solely upon its conclusion “that the State has not met its burden of establishing that the Defendant acted freely and voluntarily under the totality of the circumstances in submitting to the blood test.”

In its order granting the motion to suppress, the trial court reasoned:

The facts of this case simply do not support a finding that the Defendant actually consented to the state-administered blood test. The Defendant stated that she would submit to the state-administered test only after she was . . . pushed upon the hood of a patrol car, forcibly placed in handcuffs, and read the Implied Consent advisement. The Court finds that the most probative evidence of whether the Defendant actually consented to the state-administered blood test was the Defendant’s refusal to submit to a preliminary breath test. The preliminary breath test, which is less invasive tha[n] a blood test, was requested prior to arrest, and the Defendant was told by [the officer] that the preliminary breath test was voluntary Because the Defendant did not voluntarily submit to a pre-arrest preliminary breath test, it does not logically follow that after bring forcibly arrested and read the Implied Consent advisement, the Defendant would actually consent to a more invasive blood test.

In a footnote, the trial court stated:

The State introduced evidence of a consent form produced by and for the Gwinnett Medical Center. The Court considered this evidence and is not persuaded that it shows any desire by the Defendant to actually consent to the blood draw and test that the Defendant had been informed was required by Georgia law.

Based upon the foregoing reasoning, the trial court “suppressed from evidence in the trial of this case” the results of the state-administered blood test.

1. The sole issue raised by the State in this appeal and briefed by the parties is whether the trial court erred by concluding that the totality of the circumstances showed that Domenge-Delhoyo did not actually consent to the state-administered blood test. When considering whether a defendant has actually consented to a test of her blood under the Fourth Amendment, the State has the burden of proving that the accused acted “freely and voluntarily under the totality of the circumstances.” (Citations and punctuation omitted.) Williams, supra, 296 Ga. at 821.

A “totality of the circumstances” analysis is not new to Georgia courts. “A consent to search will normally be held voluntary if the totality of the circumstances fails to show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent.” Nor may consent be “coerced, by explicit or implicit means, by implied threat or covert force.” Other factors to be considered are “prolonged questioning; . . . the accused’s age, level of education, intelligence . . . and advisement of constitutional rights; and the psychological impact of these factors on the accused.” Moreover, “[w]hile knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.” Instead, the court should consider whether “a reasonable person would feel free to decline the officers’ request to search or otherwise terminate the encounter.” “Mere acquiescence to the authority asserted by a police officer cannot substitute for free consent.”

(Citations omitted.) Kendrick v. State, 335 Ga. App. 766, 769 (782 SE2d 842) (2016). And,

[i]n the context of determining whether a defendant has knowingly and voluntarily waived his right to be silent under the Fifth Amendment, we have held that the mere fact that a defendant was intoxicated at the time of the statement does not necessarily render it inadmissible. If the evidence is sufficient to establish that the defendant’s statement was the product of rational intellect and free will, it may be admitted even if the defendant was intoxicated when he made the statement.

(Citations and punctuation omitted.) Depol, supra, 336 Ga. App. at 198. But, “a defendant’s level of intoxication may be an appropriate factor for consideration among the totality of the circumstances in determining the voluntariness of consent. [Cit.]” State v. Williams, 337 Ga. App. 791, 797 (788 SE2d 860) (2016); State v. Jung, 337 Ga. App. 799 (788 SE2d 884) (2016); Bowman, supra, 337 Ga App. at 318-319.

In this case, however, the trial court did not conclude that Domenge-Delhoyo was too intoxicated to consent. Rather, it found the officer’s conduct in pushing her on the hood of the patrol car and forcibly placing her in handcuffs before reading the implied consent warning significant to its conclusion that the consent was not voluntary But the record shows without dispute that the officer did not read the implied consent warning to Domenge-Delhoyo while she was on the hood of the car. Instead, he did so after she was assisted from the hood of the car, after she asked him to retrieve her shoes, which he agreed to do, and after he asked her in a calm and polite voice to “have a seat” in the patrol car. Before reading the implied consent notice, he informed her that there would be a question at the end, he asked whether her answer was yes or no after he read the notice, he confirmed again that her answer was indeed yes after she had already answered in the affirmative once, and the evidence included the hospital’s consent form that gave her the option of refusing consent.

The trial court’s logic that Domenge-Delhoyo would not have actually consented to the state-administered test because she chose not to participate in the alco-sensor field sobriety test utilizes an improper subjective standard for determining consent. The standard is one of “objective reasonableness,” requiring consideration of “whether a reasonable person would feel free to decline the request,” State v. Hamby, 317 Ga.App. 480, 483 (731 SE2d 374) (2012), not whether the defendant may have subjectively preferred not to consent, but nonetheless made a decision to actually consent. The trial court also overlooks that Domenge-Delhoyo was properly advised that she could lose her driver’s license if she refused, a consequence not attendant with a refused alco-sensor test.

Based upon the undisputed evidence in the video recording and our application of the law to these undisputed facts, we conclude that the State met its burden of proving actual consent under the totality of the circumstances. “As there is no evidence that [Domenge-Delhoyo]’s consent was anything but free and voluntary, the trial court erred in granting the motion to suppress.” State v. Reid, 337 Ga. App. 77, 78 (786 SE2d 694) (2016) (written consent indicating that blood test was for purpose of determining presence of alcohol in blood along with video of stop supported reversal of trial court’s grant of motion to suppress).

2. The dissent asserts that we should affirm the trial court’s grant of the motion to suppress in this case on an alternative ground: the police officer failed to timely inform the defendant of her implied consent rights. But this ground was not argued in the motion to suppress hearing, not ruled upon by the trial court, and not addressed by the parties in their briefs on appeal. While we recognize that this court can affirm the grant of a motion to suppress if it is right for any reason raised below, Dryer v. State, 323 Ga. App. 734, 738 (2), n. 22 (747 SE2d 895) (2013), the ground relied upon by the dissent does not support the trial court’s grant of a motion to suppress here.

In Perano v. State, 250 Ga. 704 (300 SE2d 668) (1983), the Supreme Court of Georgia held:

[W]here a law enforcement officer requests a person to submit to a chemical test because of acts alleged to have been committed while operating a motor vehicle [while] under the influence of alcohol or drugs, and the officer arrests that person on this ground, OCGA § 40-6-392 (a) (4) . . . requires that the officer inform him at the time of arrest of his right to an independent chemical analysis to determine the amount of alcohol or drugs present in his blood. Under ordinary circumstances, where this advice is not given at the time of arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant, the results of the state-administered test will not be admissible at trial to show that the accused was driving under the influence of alcohol or drugs. Further, where, in the ordinary situation, this advice is not given at the time of arrest, the state may not use the accused’s refusal to submit to the state-administered test to suspend his driver’s license under OCGA § 40-5-55 (c).

(Emphasis supplied.) Id. at 708. Although the implied consent notice in Perano was not given at the moment of arrest, the Supreme Court concluded that the blood test given 30 minutes after arrest was nonetheless admissible because it was not appropriate for the officer to give the notice at a time immediately following a “fracas” that occurred between the police officer, the defendant, and his wife while the officer was arresting the defendant. Id. In the Supreme Court’s view, these facts “would have rendered any notice of a right to an independent blood analysis meaningless if given at the time of physical arrest” and “[i]t was not inappropriate, in this situation, for the officer to advise [the defendant] of this right at the hospital prior to the administration of the state’s test.” Id.

Following the Supreme Court’s decision in Perano, this court has had numerous occasions to examine the particular facts before us and conclude that the implied consent notice was timely read even though it was not given immediately after an arrest. See Lynch v. State, 293 Ga. App. 858, 860-862 (1) (668 SE2d 264) (2008) (15-30 minutes after presumed arrest was timely); Dunbar v. State, 283 Ga. App. 872, 875 (2) (643 SE2d 292) (2007) (25 minutes after arrest was timely); Naik v. State, 277 Ga. App. 418 (626 SE2d 608) (2006) (18 minutes after arrest was timely); State v. Marks, 239 Ga. App. 448, 453 (2) (521 SE2d 257) (1999) (16 minutes after arrest was timely); Edge v. State, 226 Ga. App. 559, 560 (1) (a) (487 SE2d 117) (1997) (two hours after arrest was timely), overruled on other grounds, Zilke v. State, 299 Ga. 232 (787 SE2d 745) (2016); Martin v. State, 211 Ga. App. 561, 562 (440 SE2d 24) (1993) (10 minutes after arrest was timely); Highsmith v. City of Woodbury, 189 Ga. App. 58, 59-60 (1) (375 SE2d 79) (1988) (16 minutes after arrest was timely); Fore v. State, 180 Ga. App. 196 (348 SE2d 579) (1986) (20-25 minutes after arrest was timely); Mason v. State, 177 Ga. App. 184, 186 (2) (338 SE2d 706) (1985) (20-30 minutes after arrest was timely); Horah v. State, 173 Ga. App. 306, 307-308 (1) (325 SE2d 917) (1985) (15-30 minutes after arrest was timely). Factors which have weighed into our decision to conclude that the notice was timely include: whether the notice was given at the earliest time at or after arrest “when it would be meaningful and defendant could make an intelligent choice”; “[i]n a situation where an officer properly delays the reading of implied consent for a brief period in order to attend to the exigencies of police work, it would appear incumbent upon a defendant to demonstrate how she would have benefited by being read the implied consent notice earlier”; and whether the notice was given on the scene of the arrest rather than after transport to another location.

On fewer occasions, this court has concluded that the implied consent notice was not timely read after arrest. See Thrasher v. State, 300 Ga. App. 154, 155-157 (1) (684 SE2d 318) (2009) (finding trial counsel ineffective for failing to move to suppress test results where 57-minute delay between arrest and reading of notice after transport to jail); State v. Austell, 285 Ga. App. 18, 19-21 (2) (645 SE2d 550) (2007) (45-minute delay between arrest and reading of notice after transport to jail); Dawson v. State, 227 Ga. App. 38, 40 (2) (488 SE2d 114) (1997) (more than 45-minute delay between arrest and reading of notice after transport to jail); State v. Lamb, 217 Ga. App. 290, 291 (456 SE2d 769) (1995) (more than 30-minute delay between arrest and reading of notice after transport to police station); Clapsaddle v. State, 208 Ga. App. 840, 841-842 (1) (432 SE2d 262) (1993) (one-hour delay between arrest and reading of notice after transport to police station); Vandiver v. State, 207 Ga. App. 836, 837-838 (1) (429 SE2d 318) (1993) (unknown length of delay before notice read after transport to police station).

Based upon the particular facts and circumstances of this case, the officer’s implied consent notice was given “at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant.” Perano, supra. The 20-minute delay resulted from the exigencies of police work based upon the defendant changing her mind about performing field sobriety tests and the officer complying with her request to check her to see if she was safe to drive. While there was no testimony on this issue, probably due to it not being raised in the motion to suppress hearing, it is reasonable to conclude that Domenge-Delhoyo changed her mind with the hope that she could change the officer’s mind about arresting her if she performed well on the field sobriety tests. When the officer placed her in handcuffs after the field sobriety tests concluded, he promptly read the implied consent notice after placing her in the back of the patrol car. This record fails to show how the defendant would have benefited from the notice being read earlier. Indeed, it may have caused confusion for it to have been read before the officer asked for an aleo-sensor test as part of the field sobriety evaluation. See Crawford v. State, 246 Ga. App. 344, 346 (2) (540 SE2d 300) (2000) (“implied consent notice should not be read before the administration of the alco-sensor test because that may mislead the driver into believing that he or she is required to submit to that test”). Accordingly, this court should not affirm the trial court’s grant of the motion to suppress on the alternative ground advanced by the dissent.

Judgment reversed.

Branch, Rickman and Mercier, JJ., concur. Miller, P J., Ellington, P. J., and McMillian, J., concur in judgment only. Barnes, P. J., and McFadden, J., dissent.

BARNES, Presiding Judge,

dissenting.

Because the trial court should be affirmed on the alternative ground raised below that Domenge-Delhoyo was not timely advised of her implied consent rights, I respectfully dissent.

“OCGA § 40-5-55 (a)[ ] provides that any person who operates a motor vehicle in this state and is arrested for DUI is deemed to have given consent to chemical tests of his bodily substances to determine the presence of alcohol or drugs.” Lee v. State, 324 Ga. App. 28, 29 (1) (749 SE2d 32) (2013). The purpose of providing the implied consent notice in accordance with OCGA § 40-6-392 (a) (4) is to notify drivers of their rights so that upon arrest, they can make informed decisions. Garrett v. Dept. of Public Safety, 237 Ga. 413, 415 (2) (228 SE2d 812) (1976).

OCGA § 40-6-392 (a) (4) provides, in pertinent part: “The arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section.” (Emphasis supplied.) Our Supreme Court has held that

the mandatory language [in OCGA § 40-6-392 (a) (4) that] “[t]he arresting officer at the time of the arrest shall advise the person arrested of his rights” . . . cannot be interpreted to mean sometime in the future. One cannot make an intelligent choice to submit to a chemical test without the knowledge of the right to have an independent test made in order to contest the validity of the state’s test.

(Emphasis omitted.) Garrett, 237 Ga. at 415 (2). Therefore, OCGA § 40-6-392 (a) (4) is construed “narrowly, to mean almost literally what it said,” specifically that the officer is required to inform a defendant at the time of arrest of his rights to an independent chemical analysis to determine the amount of alcohol or drugs present in his blood. Vandiver v. State, 207 Ga. App. 836, 837 (1) (429 SE2d 318) (1993); OCGA § 40-6-392 (a) (4). And “where implied consent rights are not read at the time of arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant, the results of the state-administered test will not be admissible at trial[.]” (Citation and punctuation omitted.) Hough v. State, 279 Ga. 711, 716 (2) (a) (620 SE2d 380) (2005). “[T]he state has the burden of demonstrating compliance with the implied consent notice requirements.” (Citations omitted.) Miller v. State, 238 Ga. App. 61, 62 (1) (516 SE2d 838) (1999).

Here, the record reflects that at approximately two minutes into the encounter, Domenge-Delhoyo refused to perform the requested field sobriety tests, after which the officer told her that she was under arrest for DUI and asked her to put her hands behind her back. Domenge-Delhoyo then agreed to perform the field sobriety tests, and the officer stopped handcuffing her, but informed Domenge-Delhoyo that she was “already . . . under arrest” and advised her of her Miranda rights. The officer then performed several field sobriety tests, and approximately 15 minutes later, asked her if she would perform a preliminary breath test. Domenge-Delhoyo refused, but when she subsequently agreed as she was being placed in handcuffs, the officer again said that it was too late because she was under arrest. Finally, Domenge-Delhoyo was handcuffed, placed in the patrol car, and read her implied consent rights. She then consented to having her blood drawn.

Absent exigent circumstances, Georgia courts have found that “our law demands that the rights be read at the time of arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant.” (Citation and punctuation omitted.) State v. Austell, 285 Ga. App. 18, 20 (2) (645 SE2d 550) (2007). “[Substantial compliance is not sufficient...; the officer must give the warning when he arrests the defendant unless there is a good reason not to.” (Emphasis omitted in part.) Dawson v. State, 227 Ga. App. 38, 40 (2) (488 SE2d 114) (1997).

In this case, there were no exigent circumstances that would excuse the delay of approximately 20 minutes between Domenge-Delhoyo’s arrest for DUI and the reading of her implied consent rights. I agree with the majority that it is entirely feasible that an officer may delay the reading of implied consent for a brief period to attend to the exigencies of police work. And, the majority has provided an extensive list of cases demonstrating exactly that proposition. This case, however, is not such an instance.

Based on probable cause that Domenge-Delhoyo was intoxicated, the officer arrested Domenge-Delhoyo at approximately three minutes into their encounter. Although informing her that she was already under arrest and Mirandizing her, the officer then proceeded to conduct an almost 20-minute, essentially immaterial DUI investigation, before finally putting Domenge-Delhoyo into his vehicle and reading her the implied consent notice. There was no need for the officer to conduct field sobriety tests because Domenge-Delhoyo was already under arrest for DUI. The officer made clear to her that she was under arrest and that her cooperation in performing the tests was too late.

As the record reflects, the officer used the period between the arrest and the reading of the implied consent notice not to address an exigency or engage in any necessary “police work,” but simply to continue a DUI investigation for which Domenge-Delhoyo had already been arrested. See State v. Lamb, 217 Ga. App. 290, 291-292 (456 SE2d 769) (1995) (the officer “preferred” to read the implied consent warning in the presence of a witness, resulting in the defendant’s transport to the police station and an unlawful 30-minute delay); Clapsaddle v. State, 208 Ga. App. 840, 841-842 (1) (432 SE2d 262) (1993) (the accused was not given his implied consent rights until after he was transported to the jail, for no apparent reason). The standard police work in this case was not an exigency necessitating the delay in the timely reading of the implied consent notice and thus was not given “as close in proximity to the instant of arrest as the circumstances of the individual case might warrant.” Vandiver, 207 Ga. App. at 837 (1) (standard practice of waiting to give the warning until the defendant was at the jail did not justify delay).

Given these circumstances, it is apparent that the officer did not “advise [Domenge-Delhoyo] of [her] implied consent rights in as accurate, timely, and practical a manner as dictated by the circumstances.” Martin v. State, 211 Ga. App. 561, 562 (440 SE2d 24) (1993). Accordingly, although on alternative grounds, I would affirm the trial court’s order granting Domenge-Delhoyo’s motion to suppress. See Mathis v. State, 279 Ga. 100, 102 (3) (a) (610 SE2d 62) (2005) (explaining that “[appellate courts] will affirm a trial court’s ruling if it is right for any reason”); Vandiver, 207 Ga. App. at 838 (1) (test results are inadmissible against defendant because of the invalid procedure).

I am authorized to state that Judge McFadden joins in this dissent.

Decided July 15, 2016

Reconsideration denied July 29, 2016

On Motion for Reconsideration.

In her motion for reconsideration, Domenge-Delhoyo points this court to the United States Supreme Court’s recent opinion in Birchfield v. North Dakota, _ U. S. _ (136 SCt 2160, 195 LE2d 560) (2016), notes that this court did not mention it, and asserts that it “may have a significant impact on the analysis of the voluntariness of the Appellee’s consent to the state-administered blood test.” We disagree. This court did not include a discussion of the Birchfield opinion because it has no application to the facts before us.

The United States Supreme Court’s holding in Birchfield is limited to those states in which criminal penalties are imposed based upon a refusal to submit to a blood test. Birchfield, 195 LE2d at 589 (VI). Indeed, it expressly noted:

Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. See, e.g., [Missouri v.] McNeely, [_ U. S. _ (133 SCt 1552, 185 LE2d 696) (2013)] (plurality opinion); [South Dakota v.] Neville, [459 U. S. 553, 560 (103 SCt 916, 74 LE2d 748 (1983)]. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.

Id. at 588-589 (VI). And while it remanded one of the cases before it to the state court “to reevaluate [the defendant’s consent given the partial inaccuracy of the officer’s advisory,” the notice given in that case stated that a test refusal was itself a crime. Id. at 573-574 (II) (C) and 590 (VII).

Here, the notice given to Domenge-Delhoyo did not state that it was a crime for her to refuse to allow a blood test, and she points to no law in Georgia imposing criminal penalties for refusing a blood test. Our criminal statute governing misdemeanor obstruction of a law enforcement officer, see OCGA § 16-10-24, does not bring this case within the ambit of Birchfield, particularly when our implied consent law does not require police officers to inform those arrested for DUI that they could be arrested for obstruction if they refuse a blood test.

Motion for reconsideration denied.

Rosanna M. Szabo, Solicitor-General, Ryan A. Fisher, Assistant Solicitor-General, for appellant.

The Sessions Law Firm, D. Benjamin Sessions, for appellee.

       This officer testified that he was also trained as a drug recognition expert with regard to “how drugs interact with the body.”

       To the extent the trial court concluded that the notice read by the trooper informed Domenge-Delhoyo that her consent was required by law, it erred. See Kendrick, supra, 335 Ga. App. at 771 (“the implied consent notice accurately recites Georgia law as contained within OCGA § 40-5-67.1 (b) (2) and informs the suspect of her choice of either agreeing or refusing to submit to chemical testing, and the possible consequences for each choice”).

       Indeed, if the defendant were appealing a denial of her motion to suppress, we would conclude that the ground relied upon by the dissent has been abandoned. See Owens v. State, 308 Ga. App. 374, 380 (3) (707 SE2d 584) (2011) (appellant abandoned motion to suppress ground mentioned in written motion because appellant failed to raise and argue it during the hearing and failed to obtain a ruling on issue from trial court). See also Barber v. State, 236 Ga. App. 294, 297 (2), n. 1 (512 SE2d 48) (1999); Nelson v. State, 224 Ga. App. 623, 623-624 (1) (481 SE2d 605) (1997).

        Lee v. State, 177 Ga. App. 8, 11 (3) (338 SE2d 445) (1985).

        Marks, supra, 239 Ga. App. at 453 (2) (reversingtrial court’s grant of motion to suppress).

        Dunbar, supra, 283 Ga. App. at 875 (2); Horah, supra, 173 Ga. App. at 307 (1).

       We note that the trial court’s order states that the aleo-sensor test “was requested prior to arrest,” even though this request took place after the officer first told Domenge-Delhoyo she was under arrest and attempted to place her in handcuffs. For purposes of this analysis, we nonetheless assume, without deciding, that the arrest took place when the officer first attempted to place Domenge-Delhoyo in handcuffs.

       We disagree with the dissent’s assertion that “exigent circumstances” must “justify the delay in reading the implied consent notice” rather than considering whether, under the particular circumstances of this case, ‘the exigencies of police work prevent the giving of advice.” See Marks, supra, 239 Ga. App. at 453 (2). Previous “exigencies of police work” recognized by this court are typically related to the officer’s investigation of the particular accident or traffic stop giving rise to the arrest, and not a completely unrelated police matter. See, e.g., Dunbar, supra, 283 Ga. App. at 875 (2) (officer attended to intoxicated passenger on scene and called tow truck); Mason, supra, 177 Ga. App. at 186 (2) (officer completed accident scene investigation and dealt with hazard created by wrecked vehicle). Compare Fore, supra, 180 Ga. App. at 196 (officer read implied consent after responding to a call resulting in second arrest while defendant in patrol car).

       While the dissent correctly references authority that concludes standard practices or routines of waiting to provide a warning do not qualify as “exigencies of police work,” see Vandiver, supra, 207 Ga. App. at 838 (1), this case does not involve a standard practice or routine. Instead, the officer was responding to circumstances as they arose.

       Although the majority contends that this ground is not properly before the Court, Domenge-Delhoyo filed a motion in limine to exclude the blood test on statutory grounds, including that she was not properly and timely advised of her implied consent rights.


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A16A0566.
    GEICO INDEMNITY COMPANY v. SMITH.
    (788 SE2d 150)
   McFADDEN, Judge.

This appeal is from the denial of summary judgment to the insurance company in an uninsured motorist coverage dispute arising from a motor vehicle collision. Because the insured failed to give timely notice of the collision to the insurance company, as required by the insurance policy, the insurance company was entitled to summary judgment. Accordingly, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Norton v. Cobb, 284 Ga. App. 303 (643 SE2d 803) (2007). This court reviews de novo a grant or denial of summary judgment, viewing the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Id. at 303-304.

So viewed, the evidence shows that on October 3, 2010, Dana Smith was a passenger in a car involved in a motor vehicle collision with Nikita Dyal. At the time of the collision, Smith was an insured under an insurance policy issued by GEICO Indemnity Company to Smith’s mother. The policy included, as a condition applicable to uninsured motorist coverage, a notice requirement, providing: “As soon as possible after an accident notice must be given [to GEICO] stating: (a) The identity of the insured; (b) The time, place and details of the accident; and (c) The names and addresses of the injured and of any witnesses.” On March 23, 2011, Smith notified GEICO of the collision in a letter from her attorney.

On September 28, 2011, Smith filed suit against Dyal, seeking damages for injuries allegedly sustained in the collision. Smith served GEICO, as an uninsured motorist carrier, with the complaint and summons requiring an answer. GEICO answered the complaint and moved for summary judgment on the ground that Smith, by notifying GEICO of the collision nearly six months after the collision had occurred, failed to comply with the mandatory notice provision of the policy. The trial court denied the motion. We granted GEICO’s application for interlocutory review, and this appeal followed.

1. Smith’s failure to give timely notice.

“The purpose of a notice provision in a policy of insurance is to allow the insurer to investigate promptly the facts surrounding the occurrence and to prepare a defense or determine whether a settlement is feasible, while the facts are still fresh and the witnesses are still available.” Plantation Pipeline Co. v. Royal Indem. Co., 245 Ga. App. 23, 27 (1) (537 SE2d 165) (2000) (citation and punctuation omitted). “[T]he issue of whether notice is timely and meets the policy provisions is usually a question of fact for the jury” Advocate Networks v. Hartford Fire Ins. Co., 296 Ga. App. 338, 340 (1) (674 SE2d 617) (2009) (citation and punctuation omitted). Accord Newberry v. Cotton States Mut. Ins. Co., 242 Ga. App. 784, 785 (2) (531 SE2d 362) (2000) (generally, insurance policy provisions requiring an insured to report an incident “as soon as practicable” are subject to a factual determination). However, “[ujnexcused significant delay [in giving notice] maybe unreasonable as a matter of law.” Advocate Networks, supra (citation and punctuation omitted). This court has previously held that an approximate five-month delay in providing notice was unreasonable where the insured knew of a dangerous occurrence and the policy required the insured to give notice of such an occurrence to the insurer “as soon as practicable.” Edwards v. Fidelity & Cas. Co., 129 Ga. App. 306, 306-307 (1) (199 SE2d 570) (1973). This court also has held that, where a policy’s notice requirement is not dependent on the existence of insurance held by other parties, the insured’s misunderstanding about who would be liable did not relieve him of the policy requirement to give the insurer notice within 60 days of an automobile accident. Cotton States Mut. Ins. Co. v. Hipps, 224 Ga. App. 756, 756-757 (481 SE2d 876) (1997). Similarly, this court has concluded that an insured’s ignorance of automobile theft coverage in a policy did not excuse a ten-month delay in notifying the insurer that a vehicle had been stolen where the policy required notice “as soon as possible.” Allstate Ins. Co. v. Walker, 254 Ga. App. 315, 316-317 (1) (562 SE2d 267) (2002).

In the instant case, as recited above, the policy plainly provided that as a condition for uninsured motorist coverage, the insured must give notice of the accident to GEICO “[a]s soon as possible after an accident.” Smith, however, did not notify GEICO of the collision until nearly six months after it had occurred. She claims that this lengthy delay was justified because her attorney initially “felt that GEICO’s uninsured motorist policy’s coverage would not apply,” but later believed that it would and then notified GEICO of the claim. But enforcement of the notice requirement of the policy was not dependent on the attorney’s beliefs, incorrect or otherwise, regarding coverage.

If such common misunderstandings — which are the heart of every litigation dispute — or any other wrong idea germinated in the head of one party could alter such plain contract language as exists in this case, insurance law would be turned on its head. Insured persons under an insurance policy are presumed to know its conditions if they intend to rely upon its benefits, or else they must find out those conditions. It is well settled that where no ambiguity in a policy of insurance exists, the courts must adhere to the contract made by the parties even if it is beneficial to the insurer and detrimental to the insured, for we must construe the contract as written and are not authorized to make a new contract different from the contract written and intended by the parties.

Hipps, supra at 757 (citation omitted).

Here, Smith’s beliefs or misunderstandings about [coverage] did not relieve [her] of the plain duty to which [she] agreed and induced [GEICO] to issue this policy.” Hipps, supra at 757. To hold otherwise would be “contrary to the obvious intent of the policy, which [was] to require notice promptly after the occurrence of a covered event.” Manzi v. Cotton States Mut. Ins. Co., 243 Ga. App. 277, 281 (531 SE2d 164) (2000) (footnote omitted) (physical precedent only). Accordingly, because Smith’s failure to comply with the prompt notice provision of the policy was unreasonable, the trial court erred in denying summary judgment to GEICO.

2. Estoppel argument.

Smith argues that GEICO is estopped from insisting on strict compliance with the policy notice provision due to its active participation in this action. While this issue was raised below, it was not ruled on by the trial court. “This court is for the correction of errors of law, and where the trial court has not ruled on an issue, we will not address it.” Sol Melia, SA v. Brown, 301 Ga. App. 760, 768 (3) (688 SE2d 675) (2009) (citation and punctuation omitted). Accordingly, this argument presents nothing for us to review.

Judgment reversed.

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

On Motion for Reconsideration.

Appellee Dana Smith has moved for reconsideration, arguing that the recent opinion in Progressive Mountain Ins. Co. v. Bishop, 338 Ga. App. 115 (790 SE2d 91) (2016), compels a different result in our case. We disagree.

The holding in this case is controlled by the case law cited therein, as well as the binding authority set forth in Lankford v. State Farm Mut. Auto. Ins. Co., 307 Ga. App. 12 (703 SE2d 436) (2010), which rejected the very argument made by Smith in this case. Smith argues that her six-month delay in giving notice of the accident did not violate the policy requirement that she give notice “[a]s soon as possible after [the] accident” because her attorney initially did not believe the uninsured motorist coverage would apply, but later thought her claim might exceed the liability limits available. However, as held in Lankford, such a notice provision requires the insured to provide notice as soon as possible after the accident, and not as soon as possible after the insured “became concerned that [her] losses might exceed [liability]policy limits.” Id. at 14 (emphasis supplied). As the Lank-ford court explained:

To hold otherwise would allow an insured to delay notifying the insurer for months or even years, so long as the insured thought that other insurance existed to cover the loss. Such an interpretation is contrary to the obvious intent of the policy, which is to require notice within a reasonable period after the occurrence of a covered event.

Id. at 14-15 (citations and punctuation omitted). Here, the delay of six months was contrary to and in violation of the obvious intent of the policy’s notice requirement.

In the recent Progressive case relied upon by Smith, the notice provision was somewhat different from the provision at issue in this case and in Lankford, both of which expressly required the insured to give notice as soon as possible after the accident. In Progressive, the notice provision did not expressly specify that notice had to be as soon as possible after the accident, and instead provided generally that a person seeking coverage must “promptly report each accident or loss[.]” Progressive, supra at 116. Moreover, the court in Progressive distinguished its facts from Lankford, noting that despite the nearly 11-month delay, notice was given to the insurance company more than a year before the insured underwent surgery for the injuries in question. Progressive, supra at 118 (2). In this case, Smith has not shown that, as in Progressive, the notice was given before the treatment for the injuries in question; on the contrary, she concedes that the delayed notice was not given until after she had undergone additional treatment.

Decided July 12, 2016

Reconsideration denied July 29, 2016.

Wallace Miller III, for appellant.

Reynolds, Horne & Survant, T. Joseph Boyd, for appellee.

Unlike the court in Progressive, we do not find the facts of the instant case to be materially distinguishable from Lankford or the other case law cited in this opinion. While the length of the delay is certainly material, the controlling factor in this case is whether Smith gave notice as soon as possible after the accident, not as soon as possible after she became concerned that her claim might exceed liability coverage. Lankford, supra. While there is some tension between the analysis in Progressive and this case, because the facts here plainly show that Smith did not comply with the notice requirement of the policy, Progressive does not compel a different result.

Motion for reconsideration denied.


author: Ellington, Presiding Judge.

text:
    A16A0804.
    LEMCON USA CORPORATION v. ICON TECHNOLOGY CONSULTING, INC.
    (789 SE2d 832)
   Ellington, Presiding Judge.

Lemcon USA Corporation appeals from an order denying its motion to set aside a foreign judgment that the judgment creditor, Icon Technology Consulting, Inc., filed in the State Court of Fulton County For the reasons explained below, we dismiss this appeal.

1. As a threshold matter, we note that Lemcon filed a notice of direct appeal; it did not follow the procedure for filing an application for a discretionary appeal, which is required where the judgment appealed is an order denying a motion to set aside pursuant to OCGA § 9-11-60 (d). Lemcon contends that, although it moved to set aside the default judgment pursuant to OCGA § 9-11-60 (d), it also moved in the alternative to set aside the judgment pursuant to the inherent power of a trial judge, in the exercise of his or her discretion, to vacate a judgment during the same term of court in which the judgment is entered. Lemcon contends further that it filed its motion to set aside the default judgment in the same term of court in which the judgment was rendered and that the denial of the motion to set aside on that basis is a directly appealable final judgment. To determine whether we have jurisdiction over Lemcon’s appeal, therefore, we must determine whether Lemcon filed its motion to set aside the default judgment in the same term of court in which the judgment was rendered.

The record shows the following relevant facts. Icon filed an action against Lemcon for breach of a contract for professional services in the Circuit Court of St. Louis County, Missouri. The Missouri court entered a default judgment in Icon’s favor on January 27, 2015. On May 7, 2015, Icon filed in the State Court of Fulton County a “Suit for [Enforcement] of Foreign Judgment,” attaching a “Notice of Filing of Foreign Judgment” and an “Affidavit of Foreign Judgment” executed by an executive of Icon. The notice indicated that the Missouri judgment had been entered in the records of the State Court of Fulton County “pursuant to the Uniform Enforcement of Foreign Judgments Law], OCGA § 9-12-130 et seq.” The clerk of court verified that the attachments to the suit complied “with the law as regards to the [enforcement] of foreign judgments pursuant to the provisions of... OCGA § 9-12-132.” On July 3, 2015, Lemcon filed a motion to set aside the default judgment, arguing, inter alia, that its motion was filed in the same term of court in which the judgment was rendered and that it was therefore within the inherent power of the State Court of Fulton County, in the exercise of the trial judge’s discretion, to vacate the judgment.

Anew term of court for the State Court of Fulton County begins on the first Monday in January, March, May, July, September, and November. OCGA § 15-7-40 (terms of state courts are prescribed in local laws); Ga. L. 1983, pp. 4501, 4502, § 1 (“The State Court of Fulton County shall have six terms each year beginning on the first Mondays in January, March, May, July, September, and November.”). See also OCGA § 15-6-3 (3) (terms of Superior Court of Fulton County). The default judgment was rendered (by the Missouri court) on January 27, 2015; by statute, the January term of court for the State Court of Fulton County ended when a new term of court began on the first Monday in March (March 2,2015); Lemcon filed its motion to set aside on July 3, 2015. Thus, Lemcon did not file its motion within the same term of court as the term in which the subject judgment was rendered.

Lemcon disputes this conclusion, arguing that the default judgment was entered on May 7, 2015, during the May term of court for the State Court of Fulton County, when the Missouri default judgment was “entered of record” in the Georgia court. As adopted in Georgia, the Uniform Enforcement of Foreign Judgments Law, OCGA § 9-12-130 et seq., provides that, when the statutory procedure is followed, a judgment that was entered in a sister state will have the same effect as if the judgment had been originally entered in the Georgia court in which it is filed. Arrowhead Alternator v. CIT Communications Finance Corp., 268 Ga. App. 464, 465 (602 SE2d 231) (2004). This does not mean, however, that the judgment is deemed to be “entered” or “rendered” on the date that it is filed in a Georgia court so that it can be enforced in Georgia. “A Georgia court need not, and, in fact, is not authorized to, enter a second or duplicate judgment.” (Citation omitted.) Noaha, LLC v. Vista Antiques & Persian Rugs, 306 Ga. App. 323, 325 (1) (702 SE2d 660) (2010).

Decided August 3, 2016

The Wood Law Firm, David H. Wood, for appellant.

Hill/Macdonald, Brad E. Macdonald, for appellee.

Because Lemcon filed its motion to vacate the default judgment after the end of the term of court as the term in which the judgment was rendered, it failed to invoke the trial court’s inherent power to set aside the judgment for any meritorious reason. Accordingly, we must construe the trial court’s order denying Lemcon’s motion to vacate as addressing the merits of Lemcon’s alternative theory, which invoked the trial court’s more limited authority to set aside the default judgment under OCGA § 9-11-60 (d). See Piggly Wiggly Southern v. McCook, 216 Ga. App. 335, 336 (1) (454 SE2d 203) (1995) (contrasting limited power to rule on post-term motions under OCGA § 9-11-60 (d) with inherent discretion during same term of court to set aside judgment for any meritorious reason).

2. Because the trial court was authorized only to address the merits of Lemcon’s motion to set aside the default judgment under OCGA § 9-11-60 (d), andbecause Lemcon failed to file an application for discretionary appeal, we conclude that we lack jurisdiction to consider this direct appeal. Noaha, LLC v. Vista Antiques & Persian Rugs, 306 Ga. App. at 326 (1); Arrowhead Alternator v. CIT Communications Finance Corp., 268 Ga. App. at 466; Ga. Receivables v. Murray, 240 Ga. App. at 677; OCGA § 5-6-35 (a) (8). Accordingly, this appeal is hereby dismissed.

Appeal dismissed.

Mercier, J., concurs. Branch, J., concurs in judgment only.

       See Noaha, LLC v. Vista Antiques & Persian Rugs, 306 Ga. App. 323, 326 (1) (702 SE2d 660) (2010) (“[T]he discretionary appeal procedures are required to appeal the denial of a motion to set aside a judgment filed pursuant to OCGA § 9-11-60 (d).”) (citation and punctuation omitted); OCGA § 5-6-35 (a) (8), (b), (f) (“Appeals from orders under subsection (d) of Code Section 9-11-60 denying a motion to set aside a judgment” shall be “by application in the nature of a petition enumerating the errors to be urged on appeal[,] ” and the appellate court “shall issue an order granting or denying [leave to pursue] such an appeal[.]”).

       Citing Ga. Receivables v. Murray, 240 Ga. App. 676, 676-677 (524 SE2d 518) (1999) (“A trial court may exercise discretion in setting aside a default judgment within the same term of court. But after expiration of the term of court in which a default judgment is entered, the trial court’s discretion in setting aside the default judgment is limited to the criteria set forth in OCGA § 9-11-60 (d).”) (citation omitted); Piggly Wiggly Southern v. McCook, 216 Ga. App. 335, 337 (1) (454 SE2d 203) (1995) (“It has always been the rule in this State that where a judgment is not based on the verdict of a jury, but is the act of the judge, it is in the breast of the court during the term in which it is rendered, and in the exercise of a sound discretion] ] the judge may set it aside. Thus, whatever limitations may exist in OCGA § 9-11-60 (d) for post-term motions to set aside, a trial judge has the power during the same term of court at which a judgment is rendered to reverse, correct, revoke, modify or vacate the judgment in the exercise of his [or her] discretion.”) (citations and punctuation omitted). See also Pope v. Pope, 277 Ga. 333, 334 (588 SE2d 736) (2003) (“During the term in which a judgment is entered, atrial court has plenary control over it and has the discretion to set aside the judgment for irregularity, or because it was improvidently or inadvertently entered and for the purpose of promoting justice . A trial court’s discretion in setting aside a judgment will not be disturbed unless manifestly abused. However, a trial court’s discretion to set aside a judgment during the term it was entered is not without limits, and should be exercised for some meritorious reason. In this regard, a trial court is granted the discretion to determine what is a meritorious reason for setting aside one of its judgments, and an appellate court may reverse that discretion only if it is manifestly abused.”) (punctuation and footnotes omitted); Ga. Govt. Transparency & Campaign Finance Commission v. State Mut. Ins. Co., 321 Ga. App. 480, 483 (740 SE2d 419) (2013) (physical precedent only) (“Where [a judgment is] not based on a jury verdict, a trial court has inherent power, unchanged by the Civil Practice Act, to change its final judgment during the term of court in which it is rendered.”) (citations omitted); Griffin v. Rutland, 259 Ga. App. 846, 848 (2) (578 SE2d 540) (2003) (“[I]t is well established that a trial court has the inherent power to amend or set aside a judgment for any meritorious reason, provided the motion to set aside is filed during the term in which the judgment was rendered.”) (citation and punctuation omitted).

       See OCGA § 9-12-132 (After a foreign judgment is filed in a Georgia court, “[t]he clerk shall treat the foreign judgment in the same manner as a judgment of the court in which the foreign judgment is filed. A filed foreign judgment has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, staying, enforcing, or satisfying as a judgment of the court in which it is filed[.]”); E. Howard St. Clair & Associates v. Northwest

        Carpets, 237 Ga. App. 537, 537-538 (515 SE2d 660) (1999) (“Under the full faith and credit clause of the United States Constitution, a judgment of a foreign court will be enforced by the courts of this State. The uniform law[,] OCGA § 9-12-130 et seq.[,] provides a procedure for filing and enforcing foreign judgments in this state.”) (punctuation and footnote omitted).


author: BARNES, Presiding Judge.

text:
    A16A0907.
    CHISM v. THE STATE.
    (789 SE2d 814)
   BARNES, Presiding Judge.

Deandre Chism pled guilty to armed robbery, kidnapping, and other offenses in 2005, and was sentenced to life plus ten years. After repeated unsuccessful attempts to obtain a copy of his plea transcript and other documents, in 2015 Chism filed a pro se motion for an out-of-time appeal. The trial court denied the motion, and for the reasons that follow, we affirm.

In his motion for an out-of-time appeal, Chism argued that on November 11, 2005, three days after he pled guilty and was sentenced, he asked his court-appointed lawyer to file either a motion to withdraw his plea or an appeal. Attached to his motion is a letter from Chism’s appointed trial counsel to the county public defender’s office relaying Chism’s requests, and noting that counsel had taken no action. In July 2006, Chism made his first request to the clerk of court for a copy of his plea transcript and other documents pertaining to his case, to which the clerk responded by saying a representative could come to the court and make copies of the record for 25 cents per page. Alternatively, if Chism requested specific documents, the clerk could prepare a bill of costs to be paid before copies would be made and transmitted to him, or he could seek a copy of his file from his lawyer. The clerk also directed Chism to contact the court reporter to obtain a copy of the plea transcript.

In August 2006, Chism sent a request for a copy of his file and the plea hearing under the Open Records Act, and on the request is written: “Motion denied. Defendant was represented by counsel who may have pre-trial documents.... [T]he court reporter will supply the plea transcript upon request and remuneration. No appeal has been filed, and time for appeal has expired. This 16 August 2006. [Signature,] Judge.”

Chism filed additional requests for a copy of the record and the plea transcript, including pauper’s affidavits, in September 2006 and in May 2007. The trial court clerk responded to the May 2007 request as she did to the July 2006 request. In March 2008, Chism filed a “Petition —Application for Case Record and Transcripts of Proceedings” and a “Request to Proceed in Forma Pauperis,” explaining that he sought the records because he wanted to file habeas corpus petitions and could not make the needed prima facie showing without them. The trial court wrote “Denied, this 27 March 2008” on the petition, and on April 10, 2008, Chism filed a notice of appeal from that denial. The trial court clerk sent Chism a bill of costs for $254 on April 25, 2008, and the trial court dismissed the appeal in August 2008 because Chism had not paid the costs.

Chism continued trying to obtain a copy of the record and the plea transcript in this case, filing pleadings in November 2008, January 2009, September 2009, May 2010, and April 2013. The trial court issued numerous orders in response, noting in its order of November 2013 that it had already denied Chism’s request five times. Finally, in February 2015, Chism filed a motion for an out-of-time appeal, arguing that neither the trial court nor his trial counsel told him he could appeal, that he told his trial counsel he wanted to appeal or move to withdraw his plea, and that his trial counsel was ineffective in ten specific areas. He also argued that his kidnapping conviction could not be sustained because the element of asportation was absent, per Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008).

The trial court denied Chism’s motion because first, Garza was decided more than three years after Chism’s plea and he had no direct appeal pending, and therefore the requirement that the State show more than “slight movement” to establish the essential element of asportation in a kidnapping charge did not apply. Further, the facts proffered by the State at Chism’s plea hearing were that Chism held a shotgun to the head of his taxi driver victim and forced him to drive into a deserted area before robbing him, which satisfied even the more stringent requirements of Garza. Second, the trial court denied Chism’s motion because his claims of ineffective assistance could not be resolved by reviewing the current record and transcript; thus, if he were granted a direct appeal, “there would be no record upon which to base the various claims of ineffective assistance which he is now seeking to raise.”

Chism filed a notice of appeal in March 2015, and the clerk sent him a bill of costs. Chism filed a request to proceed as a pauper in September 2015, and shortly after that he filed a second motion for an out-of-time appeal. In an order issued in December 2015, the trial court noted that it could require the State to produce Chism for a hearing to consider whether the appeal should be dismissed for failure to pay costs or file a timely affidavit of indigency, but the court would still be required to address Chism’s request to proceed in forma pauperis. The court continued:

The state’s trial judges face a daily struggle to find balance between fairly addressing the voluminous filings by prison inmates and ensuring those with arguable merit are addressed in a timely fashion to ensure that colorable claims are efficiently heard. This case is but one small example of that issue. This court finds the best course in this case is to find the defendant to be indigent based upon his most recent filing and directs the Clerk to submit the record from the Notice of Appeal to the Court of Appeals.

This appeal was then docketed in this court on February 4, 2016. The record includes the indictment, numerous pre-trial motions filed by Chism’s trial counsel, including a motion to suppress Chism’s custodial statements and a motion and order granting funds for a mental health evaluation of Chism, voluminous discovery from the State, the plea transcript, and all of Chism’s post-conviction filings and the trial court’s responses thereto.

We find no error in the trial court’s decision to deny Chism’s motion for an out-of-time direct appeal from the judgment and sentence entered on his guilty plea, because his ineffective assistance claims cannot be resolved favorably based on the current record. While a defendant has an absolute right to a direct appeal from a conviction and sentence entered after a jury or bench trial, a defendant who enters a plea of guilty has no right to a direct appeal. Smith v. State, 266 Ga. 687, 687 (470 SE2d 436) (1996). Instead,

[a] direct appeal from a judgment of conviction and sentence entered on a guilty plea is only available if the issue on appeal can be resolved by reference to facts on the record. The ability to decide the appeal based on the existing record thus becomes the deciding factor in determining the availability of an out-of-time appeal when the defendant has pled guilty Issues regarding the effectiveness of counsel are not reached unless the requirement that the appeal be resolved by reference to facts on the record is met.

Grantham v. State, 267 Ga. 635, 635 (481 SE2d 219) (1997).

Here, Chism argued in the trial court that his trial counsel was ineffective for allowing him to enter a nonnegotiated plea despite his mental illness and limitations, for failing to request a mental competency hearing, for failing to present evidence about Chism’s history of mental evaluations, for misrepresenting Chism’s juvenile offender information during the plea hearing, for failing to present evidence of Chism’s mental health status as a mitigating factor in sentencing, for failing to request a plea of guilty but mentally ill, and other claims related to the blind plea.

These issues cannot be resolved by reference to the facts contained in the record, and instead, can be developed only in the context of a post-plea hearing. Therefore, a motion for an out-of-time appeal is not available to [Chism] on these issues, and instead, he must pursue counsel’s alleged ineffectiveness in an action for habeas corpus.

Decided August 3, 2016.

Deandre M. Chism, pro se.

Brian K. Fortner, District Attorney, Emily K. Richardson, Assistant District Attorney, for appellee.

Wetherington v. State, 296 Ga. 451, 455 (769 SE2d 53) (2015).

Judgment affirmed.

Boggs and Rickman, JJ., concur.