text:
    A17A0587.
    In the Interest of D. B., a child.
    (802 SE2d 19)
   DILLARD, Presiding Judge.

Following a hearing and the entry of an admission with a negotiated disposition, the Juvenile Court of Richmond County adjudicated D. B. delinquent for carrying a weapon within a designated school safety zone, possessing a handgun as a person under the age of 18 years, and committing criminal trespass. The juvenile court determined that D. B. should be designated as a Class-B felon under OCGA § 15-11-602 for carrying a weapon in a school safety zone and, accordingly, ordered him to serve six months in a youth development campus, committing him to the Department of Juvenile Justice for a total of eighteen months. D. B. filed a motion to vacate what he argued was a void disposition, contending that he did not qualify as a Class-B designated felon. The juvenile court agreed and amended the disposition. The State now appeals from the juvenile court’s amended disposition, arguing that (1) the court lacked jurisdiction to modify its sentence after D. B. was committed to the custody of the Department of Juvenile Justice, and (2) D. B. did qualify as a Class-B designated felon. For the reasons set forth infra, we reverse.

Viewed in the light most favorable to the juvenile court’s findings and judgment, the record reflects that on March 29, 2016, an administrator at D. B.’s high school received information that another student might be in possession of marijuana, which prompted a search of that student’s locker. Officials found D. B.’s book bag in the locker and, within the book bag, a .38 Smith & Wesson revolver containing five rounds of ammunition. D. B. was then called to the school’s office, but before arriving there he saw law enforcement, took off running, and kicked a hole through a wall. Butin short order, D. B. was detained and questioned. After waiving his Miranda rights in writing, D. B. admitted to bringing the gun to school, stating that he had done so “for protection.”

D. B. was later charged by delinquency petition with (1) carrying weapons within a school safety zone for “hav[ing] under his control, a weapon, to-wit: a certain handgun, while on school property . . . (2) possessing a handgun as a person under 18 years of age; (3) committing criminal trespass by kicking the wall of the school, causing damage; and (4) disrupting a public school. The State further alleged in the petition that the charges against D. B., if proven, “could constitute a Class (B) designated felony according to [OCGA] § 15-11-2 et seq.” As noted by the juvenile court in its disposition order, prior to the adjudicatory hearing, D. B. “entered an admission with a negotiated . . . disposition in this case that was accepted by [the juvenile] court.” Thus, he was adjudicated delinquent on the first three charges, with the juvenile court concluding that the first count (carrying a weapon within a school safety zone) qualified as a Class-B designated felony. The juvenile court later modified this conclusion and D. B.’s disposition after D. B. argued that his disposition was void because he did not qualify as a Class-B designated felon. This appeal by the State follows the court’s modification.

At the outset, we reject D. B.’s argument that this appeal should be dismissed because the State lacked authority to appeal under OCGA § 5-7-1. Accordingly, we deny his separately filed motion to dismiss. Although the State filed its appeal under OCGA § 5-7-1 (a) (6), which permits the State to appeal “[f]rom an order, decision, or judgment of a court where the court does not have jurisdiction or the order is otherwise void under the Constitution or laws of this state,” and we determine infra that the juvenile court did have jurisdiction, the State was nevertheless authorized to an appeal under OCGA § 5-7-1 (a) (2), which permits appeals “[f]rom an order, decision, or judgment arresting judgment of conviction or adjudication of delinquency upon legal grounds[.]”

1. The State argues that the court lacked jurisdiction to modify D. B.’s disposition after he was committed to the custody of the Department of Juvenile Justice. We disagree with the State’s assertion that a juvenile court never has jurisdiction to modify a disposition on motion of a party after a juvenile has been committed to the Department’s custody.

In arguing that the juvenile court lacked jurisdiction, the State relies upon cases decided under our prior Juvenile Code, citing In the Interest of K. F. and In the Interest of S. S. Those cases relied upon former OCGA § 15-11-40 (b), which provided:

An order of the court may also be changed, modified, or vacated on the ground that changed circumstances so require in the best interest of the child, except an order committing a delinquent child to the Department of Juvenile Justice, after the child has been transferred to the physical custody of the Department of Juvenile Justice . . . .

But in 2013, effective January 1, 2014, our General Assembly substantially revised the Juvenile Code, and former OCGA § 15-11-40 (b) was replaced with OCGA § 15-11-32, which provides that “[a]n order of the court may ... be changed, modified, or vacated on the ground that changed circumstances so require in the best interests of a child except an order of dismissal following a contested adjudicatory hearing and that “[e]xcept as otherwise provided in Code Section 15-11-602, an order committing a child to [the Department of Juvenile Justice (DJJ)] may only be modified after such child has been transferred to DJJ custody upon motion of DJJ.” To that end, OCGA § 15-11-602 provides, in relevant part:

. . . Notwithstanding Code Section 15-11-32, DJJ or any party may file a motion with the court seeking a child’s release from placement in a secure residential facility or nonsecure residential facility, an order modifying the court’s order requiring placement in a secure residential facility or nonsecure residential facility, or termination of an order of disposition for a child committed for a class A designated felony act or class B designated felony act.

Thus, under our new Juvenile Code, notwithstanding the fact that a child has been committed to the Department of Juvenile Justice’s custody, under OCGA § 15-11-602, the juvenile court retains jurisdiction to consider a motion to modify its order when such a motion is filed by either the Department or any party under OCGA § 15-11-602. That said, OCGA § 15-11-602 (f) further provides:

All motions filed under this paragraph shall be accompanied by a written recommendation for release, modification, or termination from a child’s DJJ counselor or placement supervisor, filed in the court that committed such child to DJJ, and served on the prosecuting attorney for such jurisdiction.

And here, D. B.’s motion was not accompanied by such a recommendation, as required by OCGA § 15-11-602 (f) (2) (B). Moreover, D. B.’s motion also was not based on an allegation of changed circumstances. Instead, D. B.’s motion was made on the assertion that his disposition and resulting commitment to restrictive custody were void.

In the context of a criminal conviction, “a sentence is void if the court imposes punishment that the law does not allow.” And this is true even for defendants who plead guilty because “a defendant who knowingly enters into a plea agreement and accepts the benefit of that bargain does not waive or ‘bargain away’ the right to challenge an illegal and void sentence.” Although we can find no case law directly on point in the context of juvenile-court proceedings (and the parties cite to none), our Supreme Court has recognized that to “allow [a] defendant to serve a sentence for a criminal conviction that has been identified as illegal and void would not comport with fundamental fairness and due process of law.” And, thus, a sentencing court has “jurisdiction to vacate a void sentence at any time.” Indeed, the only ground for authorizing a trial court to correct a sentence at any time is “that the sentence is void.”

In the context of juvenile-court proceedings, it is true that “an adjudication of delinquency is not a conviction of a crime,” that “[t]he juvenile court cannot find anyone guilty of a crime,” and that “the commitment of a juvenile to any authorized facility is not commitment for conviction of a crime” but is instead “only for rehabilitation or treatment.” Nevertheless, we have repeatedly recognized that, even in juvenile-court proceedings, “due process must always be scrupulously adhered to.” Accordingly, notwithstanding the distinction between an adjudication of delinquency and a sentence imposed upon a convicted defendant, it would be an affront to a juvenile’s due process rights if a juvenile court could improperly commit a juvenile to restrictive custody but fail to retain jurisdiction to correct what amounts to a void disposition. Thus, when a juvenile makes a cognizable claim that his or her disposition was void, in order to comport with fundamental fairness and due process of law, the juvenile court retains jurisdiction to consider and correct same.

2. The State argues that the juvenile court erred by determining that it should modify D. B.’s disposition when, contrary to the juvenile court’s conclusion after considering D. B.’s motion, carrying a weapon in a school zone qualifies as a Class-B designated felony. We agree.

It is well established that the interpretation of a statute is “a question of law, which we review de novo on appeal.” And we are mindful that in considering the meaning of a statute, our charge as an appellate court is to “presume that the General Assembly meant what it said and said what it meant.” Toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text “in its most natural and reasonable way, as an ordinary speaker of the English language would,” and seek to “avoid a construction that makes some language mere surplusage.” In summary, when the language of a statute is “plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.”

Bearing these principles of statutory construction in mind, the offenses that constitute Class-B designated felonies for purposes of the Juvenile Codeare set forth in OCGA § 15-11-2, which provides, in relevant part:

“Class B designated felony act” means a delinquent act committed by a child 13 years of age or older which, if committed by an adult, would be one or more of the following crimes: . . . [a]n act which constitutes a violation of Code Section 16-11-127.1 involving a . . . [f]irearm, as defined in Code Section 16-11-131 [.]

In relevant part, OCGA § 16-11-127.1 (b) provides that it is “unlawful for any person to carry to or to possess or have under such person’s control while within a school safety zone . . . any weapon [.] ” And OCGA § 16-11-131 defines “firearm” as “including] any handgun, rifle, shotgun, or other weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge.” The Criminal Code further defines “handgun” as

a firearm of any description, loaded or unloaded, from which any shot, bullet, or other missile can be discharged by an action of an explosive where the length of the barrel, not including any revolving, detachable, or magazine breech, does not exceed 12 inches; provided, however, that the term “handgun” shall not include a gun which discharges a single shot of .46 centimeters or less in diameter.

The juvenile court accepted D. B.’s argument that his disposition for a Class-B designated felony was void because OCGA § 16-11-131, in addition to defining “firearm” as including “any handgun,” serves to criminalize the possession of firearms by convicted felons. And because D. B. “had no adjudications, . . . was not [on] probation, . . . was not under an informal adjustment, and . . . was not under an abeyance,” he argues that the definition of “firearm” in OCGA § 16-11-131 does not apply to the facts of his case and, therefore, his act of possessing a handgun in a school safety zone did not qualify as a Class-B designated felony But the juvenile court erred in accepting this argument.

It is clear from the plain language of the relevant statutes that, for purposes of the Juvenile Code, the General Assembly has included within the category of Class-B designated felonies the act of carrying or possessing a firearm in a school safety zone and has further directed that “firearm” includes “handguns” by making specific reference to the definition of “firearm” in OCGA § 16-11-131. That this section of the Criminal Code goes on to criminalize specific conduct related to its separate definition of “firearm” is of no consequence given the plain language employed by the General Assembly in OCGA § 15-11-2 (13) (N) (i) (I), quoted supra. Accordingly, the juvenile court erred by modifying D. B.’s disposition after determining that same was void because his conduct did not qualify as a Class-B designated felony

Decided June 5, 2017.

Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellant.

Gregory J. Gelpi, for appellee.

For all these reasons, we reverse the juvenile court’s amended disposition.

Judgment reversed.

Ray and Self, JJ., concur.

        See In the Interest of K. A. F., 310 Ga. App. 142, 143 (712 SE2d 138) (2011) (“On appeal from a delinquency adjudication, we view the evidence in a light most favorable to support the juvenile court’s findings and judgment. Because it is the juvenile court’s role to resolve conflicts in the evidence, we do not weigh the evidence, but merely evaluate its sufficiency.” (punctuation omitted)); In the Interest of J. T., 297 Ga. App. 636, 637 (678 SE2d 111) (2009) (same). We note that a transcript of proceedings was neither requested nor included in the appellate record and, thus, the foregoing facts—which neither side disputes on appeal—are taken from the trial court’s order of disposition.

       Surveillance video confirmed that D. B. had placed the book bag in the locker.

       OCGA § 5-7-1 (a) (6).

       OCGA § 5-7-1 (a) (2); see State v. Freeman, 272 Ga. 813, 814-15 (1) (537 SE2d 92) (2000) (“An ‘arrest of judgment’ is the ‘staying of a judgment after its entry; especially a court’s refusal to render or enforce a judgment because of a defect apparent in the record.’ The record to be considered on a motion in arrest of judgment in a criminal case is limited to the indictment, plea, verdict, and judgment. In this case, the record shows that the jury returned a verdict finding [the defendant] guilty of the offenses of murder and hindering apprehension involving the same victim. The trial court concluded as a matter of law that the verdicts were mutually exclusive and, therefore, vacated the felony-murder conviction and sentence. A review of the substance of that order, rather than its nomenclature, shows that the trial court set aside the murder conviction on legal grounds based on a defect appearing on the face of the record. Because the trial court’s order is, in effect, an order in arrest of judgment, the [S]tate is entitled to file a direct appeal under OCGA § 5-7-1.” (footnotes omitted)); see also Boney v. Tims, 254 Ga. 664, 664 (333 SE2d 592) (1985) (reviewing State’s appeal of habeas corpus proceeding in which court declared defendant’s sentences null and void and ordered resentencing); State v. Hammons, 252 Ga. App. 226, 226, 227 (1) (555 SE2d 890) (2001) (“[The defendant] voluntarily entered a guilty plea to a felony offense . . . and received a 15-year prison sentence. After serving about nine years of that felony sentence, [the defendant] sought and obtained misdemeanor punishment. The State then filed this appeal. . . . Because the order being appealed effectively sets aside a felony conviction based on legal grounds appearing on the face of the record, the order may be fairly viewed as an arrest in judgment appealable under OCGA § 5-7-1 (a) (2).”); State v. Smith, 193 Ga. App. 831, 833-34 (389 SE2d 547) (1989) (Deen, P. J., concurring specially) (“OCGA § 5-7-1 (2) affords an appeal by the State from an ‘order, decision, or judgment arresting judgment of conviction upon legal grounds.’ The trial court’s improper merger of so many convictions of armed robbery certainly had the legal effect of ‘arresting judgment of conviction upon legal grounds.’ The State’s right to appeal could be sustained on that basis.”).

        See generally OCGA § 15-1-3 (6) (providing that “every court” has the power “[t]o amend and control its processes and orders, so as to make them conformable to law and justice, and to amend its own records, so as to make them conform to the truth”); In re P. S. C., 143 Ga. App. 887, 889 (2) (240 SE2d 165) (1977) (“Atrial judge has the power during the same term of court at which a judgment is rendered to revise, correct, revoke, modify, or vacate such judgment, even upon his own motion, for the purpose of promoting justice and in the exercise of sound legal discretion .... This well-recognized principle is not strictly applicable to a juvenile court’s judgments, because the inherent power to modify extends only for the term in which the judgment was entered, and juvenile courts do not sit in terms. However, it is clear that a juvenile court retains its inherent power to modify its own judgments . . . .” (punctuation omitted)); accord In the Interest of K. B., 188 Ga. App. 199, 201 (2) (372 SE2d 476) (1988).

       299 Ga. App. 685 (683 SE2d 650) (2009).

       276 Ga. App. 666 (624 SE2d 251) (2005).

        See In the Interest of K. F., 299 Ga. App. at 686 (1) (quoting former OCGA § 15-11-40 (b)); In the Interest of S. S., 21 & Ga. App. at 667 (citing former OCGA § 15-11-40 (b) when noting that “[a]n order of the juvenile court may be changed, modified, or vacated on the ground that changed circumstances so require in the best interest of the child, except an order committing a delinquent child to the Department may not be changed, modified or vacated after the child has been transferred to the physical custody of the Department”). See generally In the In terest of P. S., 295 Ga. App. 724, 727 (673 SE2d 74) (2009) (rejecting argument that order committing juvenile to Department of Juvenile Justice should be modified based on evidence that juvenile had improved and essentially been rehabilitated while in restrictive custody because this was an argument based on changed circumstances, and trial court lacked jurisdiction to modify order on such basis after juvenile was transferred to Department’s physical custody).

        See Ga. L. 2013, p. 294, § 5-1 (“This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date.”).

       We note that OCGA § 15-11-32 was further amended in 2014 to add an additional subsection not relevant to this appeal. See Ga. L. 2014, p. 780, § 1-5 (adding subsection (g), which provides that “[t] his Code section is intended to be retroactive and shall apply to any child who is under the jurisdiction of the court at the time of a hearing, regardless of the date of the original delinquency order”).

       OCGA § 15-11-32 (b).

       OCGA § 15-11-32 (c) (emphasis supplied).

       OCGA § 15-11-602 (f) (2) (A) (emphasis supplied).

        See idsee also In the Interest of D. H., 332 Ga. App. 274, 276 (1) (a) (772 SE2d 70) (2015) (“Because the record shows that the juvenile court had transferred custody of [the juvenile] to DJJ and that DJJ did not move to modify the commitment order, the juvenile court was authorized to modify that order only pursuant to OCGA § 15-11-602 (2014).”).

       OCGA § 15-11-602 (f) (2) (B); see also In the Interest of D. H., 332 Ga. App. at 277 (1) (a) (holding that juvenile court properly dismissed motion to modify commitment order filed pursuant to OCGA § 15-11-602 (f) (2) (A) when motion was not accompanied by “a written recommendation from [the juvenile’s] DJJ counselor or placement supervisor” as required by OCGA § 15-11-602 (f) (2) (B)).

        See OCGA § 15-11-602 (f) (2) (D) (“A court hearing a motion filed under this paragraph shall determine the disposition of a child based upon a preponderance of the evidence. In determining whether a motion for release from custody, modification of placement in a secure residential facility or nonsecure residential facility, or termination of an order of disposition should be granted or denied due to changed circumstances, the court shall be required to find whether or not such child has been rehabilitated and shall consider and make specific findings of fact as to [specific thereafter enumerated] factors].]”); see also OCGA § 15-11-32 (b) (“An order of the court may ... be changed, modified, or vacated on the ground that changed circumstances so require in the best interests of a child except an order of dismissal following a contested adjudicatory hearing].]”).

        von Thomas v. State, 293 Ga. 569, 571 (2) (748 SE2d 446) (2013) (punctuation omitted) (emphasis supplied); accord Rooney v. State, 287 Ga. 1, 2 (2) (690 SE2d 804) (2010).

        Moore v. State, 293 Ga. 705, 706 (1) (749 SE2d 660) (2013); see also Humphrey v. State, 297 Ga. 349, 350 (773 SE2d 760) (2015) (“[A]s we have indicated in a number of cases, the consent of the parties cannot validate a void sentence.”).

        Nazario v. State, 293 Ga. 480, 487 (2) (c) (746 SE2d 109) (2013); accord Bynes v. State, 336 Ga. App. 223, 227-28 (2) (784 SE2d 71) (2016).

        von Thomas, 293 Ga. at 571 (2); accord Rooney, 287 Ga. at 2 (2).

        Rooney, 287 Ga. at 2 (2) (punctuation omitted); see also Williams v. State, 271 Ga. 686, 688 (1) (523 SE2d 857) (1999) (“Both this Court and the Court of Appeals have held that, when a sentence is void, a trial court has jurisdiction to resentence the defendant at any time.”).

        K. M. S. v. State, 129 Ga. App. 683, 684 (200 SE2d 916) (1973); see OCGA § 15-11-606 (“An order of disposition or adjudication shall not be a conviction of a crime and shall not impose any civil disability ordinarily resulting from a conviction nor operate to disqualify the child in any civil service application or appointment.”); see also Carrindine v. Ricketts, 236 Ga. 283, 284 (223 SE2d 627) (1976) (“Under Georgia law, when a juvenile is adjudicated to be a delinquent by a juvenile court, the adjudication is not regarded as a criminal conviction.”).

        K. M. S., 129 Ga. App. at 684.

        A. B. W. v. State, 231 Ga. 699, 702 (II) (203 SE2d 512) (1974); see also OCGA § 15-11-606.

        A. B. W., 231 Ga. at 702 (II).

        D. P. v. State, 129 Ga. App. 680, 681 (2) (200 SE2d 499) (1973); accord In the Interest of F. F., 304 Ga. App. 232, 235 (2) (695 SE2d 723) (2010); In the Interest of B. A. H., 198 Ga. App. 713, 714(1) (402 SE2d 791) (1991); In re B. A. P., 180 Ga. App. 433, 434(1) (349 SE2d 218) (1986); C. L. T. v. State, 157 Ga. App. 180, 180 (1) (276 SE2d 862) (1981); see also In the Interest of D. W.,
        232 Ga. App. 777, 779 (1) (b) n.1 (503 SE2d 647) (1998) (“[U]nder principles of due process, a juvenile is entitled to the same protection against unfair surprise and to the opportunity to prepare a defense [as an adult who faces criminal charges].”).

        See, e.g., OCGA § 15-11-601 (a) (“At the conclusion of the disposition hearing, if a child who committed a delinquent act is determined to be in need of treatment or rehabilitation, then after considering the results of such child’s risk assessment if the court is contemplating placing such child in restrictive custody, the court shall enter the least restrictive disposition order appropriate in view of the seriousness of the delinquent act, such child’s culpability as indicated by the circumstances of the particular case, the age of such child, such child’s prior record, and such child’s strengths and needs.” (emphasis supplied)); OCGA § 15-11-602 (a) (“When a child is adjudicated to have committed a . . . class B designated felony act, . . . [t]he court may make one of the following orders of disposition best suited to provide for the rehabilitation of such child and the protection of the community: (1) [a]ny order authorized by Code Section 15-11-601, if the court finds that placement in restrictive custody is not required; or (2) [a]n order placing such child in restrictive custody.”).

        Cf. In the Interest of D. M., 307 Ga. App. 751, 752-53 (2) (706 SE2d 683) (2011) (considering juvenile’s claims in direct appeal that juvenile court failed to merge two offenses as being a challenge to a void disposition).

        Cf. e.g., von Thomas, 293 Ga. at 571-72 (2) (“[T]he sentencing court had jurisdiction of [the] motion [to vacate] only to the extent that it presented a cognizable claim that the sentence was void. . . . Motions to vacate a void sentence generally are limited to claims that—even assuming the existence and validity of the conviction for which the sentence was imposed—the law does not authorize that sentence, most typically because it exceeds the most severe punishment for which the applicable penal statute provides.”); Powers v. State, 332 Ga. App. 471, 472 (773 SE2d 428) (2015) (physical precedent only) (“[T]he trial court had jurisdiction to consider his motion only to the extent that it presented a cognizable claim that the sentence was void.”). See generally Robbins v. State, 326 Ga. App. 812, 813-14 (757 SE2d 452) (2014) (rejecting State’s contention that trial court should have dismissed defendant’s motion for want of jurisdiction for failing to present a cognizable claim, but agreeing with trial court that defendant’s sentence was not void and, thus, affirming the denial of defendant’s motion to vacate sentence).

        Cf. Nazario, 293 Ga. at 487 (2) (c) (holding that to “allow [a] defendant to serve a sentence for a criminal conviction that has been identified as illegal and void would not comport with fundamental fairness and due process of law”); von Thomas, 293 Ga. at 571 (2) (“[A] sentencing court has jurisdiction to vacate a void sentence at any time.”).

        Jackson v. State, 338 Ga. App. 509, 509 (790 SE2d 295) (2016); accord State v. Hammonds, 325 Ga.App. 815, 815 (755 SE2d 214) (2014).

        Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (punctuation omitted); accord Arby’s Restaurant Group, Inc. v. McRae, 292 Ga. 243, 245 (1) (734 SE2d 55) (2012); Martinez v. State, 325 Ga. App. 267, 273 (2) (750 SE2d 504) (2013).

        Deal, 294 Ga. at 172 (1) (a); State v. Able, 321 Ga. App. 632, 636 (742 SE2d 149) (2013).

        See Arizona v. Inter Tribal Council of Arizona, Inc., _ U. S. _, _ (II) (B) (133 SCt 2247, 186 LE2d 239) (2013) (“Words that can have more than one meaning are given content, however, by their surroundings.” (punctuation omitted)); Deal, 294 Ga. at 172 (1) (a) (“[W]e must view the statutory text in the context in which it appears[.]”); see also Tibbies v. Teachers Retirement Sys. of Ga., 297 Ga. 557, 558 (1) (775 SE2d 527) (2015) (“The common and customary usages of the words are important, but so is their context.” (punctuation omitted)).

         Deal, 294 Ga. at 172-73 (1) (a); accord Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013).

        In the Interest of L. T, 325 Ga. App. 590, 592 (754 SE2d 380) (2014) (punctuation omitted); accord Ga. Tansmission Corp. v. Worley, 312 Ga. App. 855, 856 (720 SE2d 305) (2011).

        Holcomb v. Long, 329 Ga.App. 515, 518 (1) (765 SE2d 687) (2014) (punctuationomitted); see Deal, 294 Ga. at 173 (1) (a) (“[I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.” (punctuation omitted)).

       OCGA § 15-11-2 (13) (N) (i) (I).

       OCGA § 16-11-127.1 (b) (1).

       OCGA § 16-11-131 (a) (2) (emphasis supplied).

       OCGA § 16-11-125.1 (1).

        See OCGA § 16-11-131 (b) (“Any person who is on probation as a felony first offender ... or who has been convicted of a felony ... and who receives, possesses, or transports any firearm commits a felony and, upon conviction thereof, shall be imprisoned for not less than one nor more than five years; provided, however, that if the felony as to which the person is on probation or has been previously convicted is a forcible felony, then upon conviction of receiving, possessing, or transporting a firearm, such person shall be imprisoned for a period of five years.”); OCGA § 16-11-131 (b.1) (“Any person who is prohibited by this Code section from possessing a firearm because of conviction of a forcible felony or because of being on probation as a first offender for a forcible felony pursuant to this Code section and who attempts to purchase or obtain transfer of a firearm shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years.”).

        See supra notes 31-38 & accompanying text.


source: Caselaw Access Project

author: DILLARD, Presiding Judge.

license: Public Domain

text:
    A17A0615.
    MORRIS v. THE STATE.
    (802 SE2d 13)
   DILLARD, Presiding Judge.

Following trial, a jury convicted David Morris on one count each of aggravated child molestation, child molestation, and aggravated sexual battery Morris now appeals his convictions and the denial of his motion for new trial, arguing that the trial court erred in (1) granting the State’s motion in limine to prohibit cross-examination of the victim’s father as to whether he suffered sexual abuse as a child, (2) failing to limit two witnesses’ child-hearsay testimony to the specific facts to which the victim testified at trial, and (3) admitting into evidence a drawing made by the victim during a counseling session that the State did not produce during discovery For the reasons set forth infra, we affirm Morris’s convictions.

Viewed in the light most favorable to the jury’s verdict, the record shows that in 2012, Morris was living in Senoia, Coweta County, Georgia, with his wife, Jennifer, his daughter from a previous relationship, and Jennifer’s two children from a previous relationship, nine-year-old B. A. and her younger brother, H. A. On February 10, 2012, a friend of Jennifer’s was babysitting B. A. and H. A. after they arrived home from school, and at some point that afternoon, the children began fighting. Consequently, the babysitter contacted Jennifer and Morris, and both told her to send B. A. and H. A. to their bedrooms. The children complied, but after a few minutes, H. A. walked into B. A.’s bedroom and the two began talking. During this conversation, B. A. confided to her brother that Morris had been touching her private parts. With B. A.’s permission, her brother told the babysitter about the sexual abuse, and when the babysitter asked B. A. if this was true, she confirmed it.

Immediately thereafter, the babysitter called Jennifer, who rushed home and began questioning B. A. about her allegations. Initially, B. A. denied that Morris had sexually abused her, but ultimately, she told her mother that what she had relayed to her brother and the babysitter was true. Although visibly upset, Jennifer told B. A. not to tell her father about the sexual abuse, when she and her brother went to her father’s house later that day for their weekend visitation. The babysitter then drove the two children to the Pike County Sheriff’s Office, as required by a court-ordered custody settlement, where their father and his girlfriend were waiting for them. At this time, neither the babysitter nor Jennifer informed law enforcement about B. A.’s outcry.

That same night, H. A. told his father about the sexual abuse B. A. had disclosed to him earlier in the afternoon. The children’s father then asked B. A. if what her brother had told him was true, and although B. A. initially denied it, she eventually admitted to her father that Morris had, in fact, touched her privates. Immediately, the father called local law enforcement. And while he was reporting the incident to the authorities, B. A. recounted details of Morris’s abuse to the father’s girlfriend and also claimed that her mother warned her that if she told anyone else about her allegations, Morris would go to jail and her stepsister would have to move back to Texas.

The following day, a detective with the Senoia Police Department began an investigation of B. A.’s allegations and arranged for the child to be interviewed by a forensic social worker a few days later. During that interview, B. A. disclosed only one incident, in which Morris sexually abused her by placing his hand on her privates, and she claimed that this incident occurred when they lived in Pike County prior to moving to Senoia. Later, the investigating detective also interviewed B. A., but believing that the incidents of sexual abuse occurred in Pike County (rather than Coweta County), he closed his investigation after less than one month.

Despite the fact that law-enforcement authorities had closed their investigation of her allegations against Morris, B. A. began attending regular counseling sessions with a family therapist. And over the courseofthe next several months during those sessions, B.A. disclosed that Morris had sexually abused her on multiple occasions when the family lived in Pike County and after they had moved to Senoia (located in Coweta County). Specifically, B. A. described multiple incidents in which Morris entered her bedroom late at night and then either put his fingers inside her privates and bottom, put his mouth on her breasts and her privates, or put his penis in her mouth. During one of these therapy sessions, B. A. drew a picture and described it to the therapist as depicting her crying while Morris was putting his penis in her mouth.

In July 2012, B. A.’s father showed the notes from the child’s therapy sessions to the Senoia detective, and, as a result, the detective reopened his investigation. As part of the investigation, the detective arranged for B. A. to be interviewed by a licensed psychologist, who had significant experience in conducting forensic interviews of child sexual abuse victims. During those two September 2012 interviews, B. A. recounted many of the same details that she had disclosed to the family therapist regarding Morris’s sexual abuse of her, including the allegations that, on multiple occasions, Morris placed his fingers inside her privates and buttocks and put his penis in her mouth. Following these sessions, the psychologist diagnosed B. A. as suffering from post-traumatic stress disorder and opined that her disclosures were consistent with a child who had been sexually abused.

Shortly thereafter, the detective arrested Morris, and ultimately, the State charged him, via indictment, with one count each of aggravated child molestation, child molestation, and aggravated sexual battery. The case then proceeded to trial, during which the evidence referenced supra was introduced, and at the trial’s conclusion, the jury convicted Morris on all three counts. Subsequently, Morris obtained new counsel and filed a motion for new trial, which the trial court denied following a hearing on the matter. This appeal follows.

1. Morris first contends that the trial court erred in granting the State’s motion in limine to prohibit him from cross-examining B. A.’s father regarding whether he suffered sexual abuse as a child. We disagree.

It is, of course, well established that “a defendant has the right to a thorough and sifting cross-examination, but the discretion of the trial court to determine its scope and the relevancy of the sought testimony is broad[.]” And indeed, the court’s discretion will not be disturbed on appeal unless it has been abused. Bearing these guiding principles in mind, we turn now to Morris’s specific claim of error.

Here, prior to trial, the State moved to prohibit Morris from cross-examining B. A.’s father regarding whether he was sexually molested as a child. Noting that there was some evidence in the discovery materials, in which B. A.’s father claimed to have suffered sexual abuse, the State, nevertheless, argued that such evidence was irrelevant. But Morris maintained that the evidence explained the zeal with which B. A.’s father fought to have the case reopened after the Senoia detective initially closed it. At the conclusion of the pretrial hearing, the court took the matter under advisement. Later, at trial (just before B. A.’s father testified), the State sought a ruling on the issue, and after hearing more argument, the trial court agreed that the evidence was irrelevant, as well as confusing and possibly prejudicial.

Under OCGA § 24-4-401, the term “relevant evidence” means “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” In addition, OCGA § 24-4-402 provides:

All relevant evidence shall be admissible, except as limited by constitutional requirements or as otherwise provided by law or by other rules, as prescribed pursuant to constitutional or statutory authority, applicable in the court in which the matter is pending. Evidence which is not relevant shall not be admissible.

And while our Supreme Court has held that the relevance standard codified by these statutes is a forgiving one, it is not limitless.

Here, in arguing that the trial court erred, Morris’s contention rests upon the assumption that B. A.’s credibility would be placed in question by evidence that her father suffered sexual abuse as a child, and thus, was overzealous in ensuring that law enforcement investigated the allegations. But there is no logical link between the fact that the victim had a father who also claimed to be a victim of sexual abuse and “a conclusion that the victim might therefore be an unreliable witness whose testimony regarding [Morris’s] actions was not worthy of belief.” Accordingly, the trial court did not abuse its discretion in finding that any evidence that B. A.’s father suffered sexual abuse was irrelevant.

2. Morris also contends that the trial court erred in failing to limit the child-hearsay testimony of both the family therapist and the psychologist to the specific disclosures of sexual molestation to which B. A. testified at trial. Again, we disagree.

Under the former version of Georgia’s Child Hearsay Statute, OCGA § 24-3-16,

[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

And construing this previous version of the statute, the Supreme Court of Georgia held that, in order to comport with the Confrontation Clause of the United States Constitution and the Georgia Constitution, the child whose statements are at issue must actually testify at trial. Nevertheless, the trial court has broad discretion in “determining the admissibility of child hearsay evidence, and we will reverse a trial court’s ruling on the admissibility of statements under former OCGA § 24-3-16onlyifthe trial courtabusedits discretion.”

Here, prior to the State calling the family therapist and the psychologist as witnesses, Morris moved to limit their testimony to the specific facts regarding sexual abuse to which B. A. testified, arguing that his right to a fair trial would be prejudiced if these witnesses were allowed to provide greater details about Morris’s sexual abuse of B. A. than the child herself provided at trial. The trial court denied this request, and Morris now claims that it erred in doing so. Morris is mistaken.

Contrary to Morris’s contention, former OCGA § 24-3-16 does not “require the child to corroborate the hearsay testimony.” Indeed, Morris fails to provide any authority, and we have found none, requiring that B. A. be compelled to testify in detail about the sexual abuse she suffered. This failure is hardly surprising given that “one of the reasons for allowing a child victim’s hearsay statement to come into evidence is society’s desire to spare children who are subjected to abuse from further unnecessary trauma in the courtroom.” Accordingly, the trial court did not abuse its discretion in denying Morris’s motion to limit the child-hearsay testimony of the family therapist and the psychologist.

3. Morris further contends that the trial court erred in admitting a drawing made by B. A. during a counseling session with the family therapist, which the State did not produce during discovery. Once again, we disagree.

OCGA § 17-16-4 (a) (3) (A) provides, in part, that

. . . the prosecuting attorney shall, no later than ten days prior to trial, or as otherwise ordered by the court, permit the defendant at a time agreed to by the parties or ordered by the court to inspect and copy or photograph books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof and to inspect and photograph buildings or places which are within the possession, custody, or control of the state or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution’s case-in-chief or rebuttal at the trial or were obtained from or belong to the defendant.

And under OCGA § 17-16-6,

[i]f at any time during the course of the proceedings it is brought to the attention of the court that the state has failed to comply with the requirements of this article, the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.

Importantly, this Court reviews a trial court’s ruling in this regard for abuse of discretion.

In this case, before calling the family therapist as a witness, the State informed Morris and the trial court that the therapist brought to court a picture B. A. had drawn during one of her therapy sessions. The drawing, as previously noted, depicted B. A. crying while Morris was placing his penis in her mouth. The State then sought to admit the drawing and explained that although the drawing was never in its possession and, thus, was not included in the documents provided in discovery, it nonetheless should be admitted because the therapist’s notes, which were included in discovery, described the drawing in considerable detail. Morris objected, but the trial court concluded that the State had not acted in bad faith and ruled that it would admit the drawing after giving Morris time to review it.

On appeal, Morris argues that the admission of B. A.’s drawing prejudiced his right to a fair trial. This argument is a nonstarter. Although Morris apparently had not seen the drawing prior to trial, he undisputedly had access to the State’s discovery, which contained the therapist’s notes describing the drawing in significant detail. Furthermore, Morris did not present any evidence of bad faith on the part of the State with regard to this drawing. In fact, while arguing against the drawing’s admission, Morris’s trial counsel explicitly stated that he was not claiming that the State had acted in bad faith. Moreover, the drawing and the act depicted in it were cumulative of the testimony given by the family therapist and the psychologist, both of whom testified that B. A. claimed Morris placed his penis inside her mouth. Given that Morris has failed to show that the State acted in bad faith by not including the drawing in the discovery materials or that he suffered prejudice as a result, the trial court did not abuse its discretion in admitting the drawing over Morris’s objections.

Decided June 5, 2017.

John T. Overocker, for appellant.

Peter J. Skandalakis, District Attorney, Robert W. Mooradian, Assistant District Attorney, for appellee.

For all these reasons, we affirm Morris’s convictions and the denial of his motion for new trial.

Judgment affirmed.

Ray and Self, JJ., concur.

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

       Although Morris did not challenge the sufficiency of the evidence against him, the evidence outlined above was sufficient for a rational trier of fact to find him guilty beyond a reasonable doubt ofthe charged offenses. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        Funck v. State, 296 Ga. 371, 375 (3) (768 SE2d 468) (2015); see Hughes v. State, 297 Ga. App. 581, 584 (3) (677 SE2d 674) (2009) (noting that “the scope of cross-examination is within the sound discretion of the trial court, and irrelevant matter should be excluded” (punctuation omitted)).

        See Funck, 296 Ga. at 375 (3).

       Morris was tried in July 2014, and therefore, Georgia’s new Evidence Code was applicable. See Ga. L. 2011, pp. 99, 214, § 101 (providing that Georgia’s new Evidence Code applies “to any motion made or hearing or trial commenced on or after” January 1, 2013).

        See State v. Jones, 297 Ga. 156, 159 (2) n.2 (773 SE2d 170) (2015) (“Regardless of how one views the language of Rule 401, however, it is clear that the relevance standard codified therein is a liberal one.”); accord United States v. Glasses, 773 F2d 1553, 1559 n.4 (11th Cir. 1985).

        See Smith v. State, 299 Ga. 424, 427-30 (2) (a)-(c) (788 SE2d 433) (2016) (holding that State’s line of questioning regarding why and where defendant got his tattoos during cross-examination of defendant was not relevant to determine identity or any other purpose);
        Smith v. State, 335 Ga. App. 497, 499-500 (2) (782 SE2d 305) (2016) (holding that testimony of a witness, who defendant sought to present at motion for new trial regarding her general experience using social media, was not relevant to establish that the removed juror, discovered to be listed as a friend of defendant’s on a social media website, may not have actually known defendant because testimony regarding the witness’s experience with social media was not relevant to the removed juror’s experience with same).

        Person v. Meachum, 772 FSupp. 69, 75 (II) (B) (D. Conn. 1991) (punctuation omitted). Because our new Evidence Code was based, in large part, on the Federal Rules of Evidence, when “the new Georgia rules mirror their federal counterparts, it is clear that the General Assembly intended for Georgia courts to look to the federal rules and how federal appellate courts have interpreted those rules for guidance.” Parker v. State, 296 Ga. 586, 592 (3) (a) (769 SE2d 329) (2015); see Brooks v. State, 298 Ga. 722, 724 (2) n.8 (783 SE2d 895) (2016) (notingthat when the General Assembly incorporated the language of the F ederal Rules of Evidence in the new Evidence Code, it intended to adopt the Federal Rules as interpreted by the federal courts to the extent the interpretation is consistent with the Constitution of Georgia); Samuels v. State, 335 Ga.App. 819, 823 (1) (783 SE2d 344) (2016) (noting that given the similarity between Georgia’s new Evidence Code and the Federal Rules of Evidence it is proper that we “give consideration and great weight to constructions placed on the Federal Rules by the federal courts” (punctuation omitted)).

        See Person, 772 FSupp. at 75-76 (II) (B) (holding that evidence that sexual abuse victim’s friend had previously made similar sexual abuse allegations against her father was properly excluded as irrelevant in prosecution against victim’s father); cf. Hughes, 297 Ga. App. at 584-85 (3) (holding under the old Evidence Code that evidence that victim’s mother had made allegations that she herself had been molested asachildwas irrelevant in prosecution for child molestation); Mann v. State, 244 Ga. App. 756, 760 (6) (536 SE2d 608) (2000) (same).

       Because the offenses at issue in this matter occurred prior to July 1, 2013, the former version of the Child Hearsay Statute applies. See OCGA § 24-8-820; Ga. L. 2013, p. 222, § 21 (“This Act shall become effective on July 1, 2013, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2013, shall be governed by the statute in effect at the time of such offense.”). The current version of the statute changed the age of the child to which it would apply to those “younger than 16 years of age,” removed the “indicia of reliability” language, and added, inter alia, a notice provision. See OCGA § 24-8-820; Ga. L. 2013, p. 222, § 13.

        See U. S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right.. .tobe confronted with the witnesses against him [.] ”); Ga. Const, art. 1, § 1, tXIV (“Every person charged with an offense against the laws of this state . . . shall be confronted with the witnesses testifying against such person.”).

        See Hatley v. State, 290 Ga. 480, 483-84 (I) (722 SE2d 67) (2012) (holding that under former OCGA § 24-3-16, if the defendant objects to the State’s intent to introduce a child victim’s hearsay statements, the State must present the child witness at trial).

        Maurer v. State, 320 Ga. App. 585, 588 (2) (740 SE2d 318) (2013) (punctuation omitted); accord Estrada v. State, 319 Ga. App. 762, 763 (1) (738 SE2d 344) (2013).

        Maurer, 320 Ga. App. at 589 (2) (punctuation omitted).

        See id. (holding that there is no legal authority, pursuant to former OCGA § 24-3-16, requiring that the child victim testify about the alleged sexual abuse perpetrated by defendant).

        Id. (punctuation omitted); accord Bunn v. State, 291 Ga. 183, 187 (2) (b) (728 SE2d 569) (2012).

        See Kirkland v. State, 334 Ga. App. 26, 32 (2) (778 SE2d 42) (2015) (“The fact that a child witness is unresponsive or evasive in response to certain questions on the witness stand does not render the child’s out-of-court statements inadmissible under the Child Hearsay Statute or violate the Sixth Amendment confrontation rights of the defendant.”); Maurer, 320 Ga. App. at 589 (2) (holding that Sixth Amendment did not compel victim to corroborate child hearsay evidence provided by forensic interviewer).

        Adams v. State, 340 Ga. App. 1, 7 (2) (795 SE2d 330) (2016); see Burton v. State, 330 Ga. App. 503, 506 (767 SE2d 510) (2014) (holding that the trial court’s ruling on a remedy for the State’s failure to comply with discovery obligations is subject to review for an abuse of discretion).

        See Adams, 340 Ga. App. at 7-8 (2) (holdingthat even if the State was required to disclose 911 tape prior to trial, the admission of the evidence did not constitute reversible error given that the prosecutor did not know about the existence of the 911 tape prior to the start of trial, and thus, the State did not act in bad faith in failing to provide the 911 recording prior to trial); McMorris v. State, 263 Ga. App. 630, 633-34 (2) (a) (588 SE2d 817) (2003) (holding that trial court did not abuse its discretion in admitting printout of colposcope image of victim’s injuries on the grounds that State failed to produce image pursuant to reciprocal discovery given the fact that State had open file policy, defendant was provided with physician’s report which mentioned printout, and printout was cumulative of physician’s testimony).


author: BARNES, Presiding Judge.

text:
    A17A0051.
    WALLACE v. THE STATE.
    (802 SE2d 34)
   BARNES, Presiding Judge.

Following a jury trial, Clarence Steven Wallace was convicted of three counts of felony theft by shoplifting and sentenced to ten years to serve as a recidivist under OCGA § 17-10-7 (a) and (c). He filed a motion for new trial alleging the general grounds, which Wallace later amended to include other claims, including ineffective assistance of counsel. The trial court denied his motion, and Wallace appeals from that order. Following our review, we affirm.

“On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict.” Marriott v. State, 320 Ga.App. 58, 58 (739 SE2d 68) (2013). So viewed, the record demonstrates that Wallace drove his co-defendant, Lebron Grady, to Whitfield County so that Grady could shoplift specific items for Wallace in order to repay a debt to Wallace. As Wallace waited in his truck, Grady took electric toothbrushes and SD cards from a CVS Pharmacy The men then continued the shoplifting spree, taking boots from the Tractor Supply Company, fishing reels, headphones, a cell phone and computer from Walmart, a cell phone booster from Radio Shack, and shoes from JCPenney. At the next stop, a liquor store, Wallace purchased a soda while Grady took two bottles of Crown Royal and started to leave the store. The owner saw him, and during an ensuing chase, Grady dropped the liquor bottle while he ran away

Wallace picked Grady up in his truck, and, after the shop owner notified police of the theft and the type of vehicle the men were driving, police stopped the pair at a traffic stop conducted a few miles from the liquor store. After Wallace gave police permission to search the truck, police discovered the stolen items in the bed of the truck. Wallace denied participating in the crimes but consented to a search of his person, and the police retrieved an unopened lip gloss-type product from his pocket, which was later identified as an item stolen from Walmart. Both men were arrested and indicted on three counts of felony shoplifting.

1. Wallace first contends that his felony shoplifting conviction on Count 3 of the indictment is void. He asserts that because the State used the aggregate value of the goods from the various stores to support the felony charge, the indictment had to specify that the thefts occurred within the statutorily prescribed period of seven days or less. We do not agree.

The first count of the indictment charged Wallace with felony shoplifting for taking goods valued at more than $500 from CVS, and Count 2 charged the same for the shoplifting that occurred at Wal-mart. Count 3 of the indictment, however, provided, in pertinent part, that Wallace, “did take possession of . . . the property of Tractor Supply Company, . . . the property of JC Penney, . . . the property of Radio Shack, . . . and . . . the property of Cox Spirits, . . . said merchandise totaling a value greater than five hundred dollars ($500.00).”

Wallace maintains that although the State did not refer to a specific statute in the indictment, the only provision of the shoplifting statute that covers aggregation of separate misdemeanor-level thefts is OCGA § 16-8-14 (b) (3), which requires that the aggregate acts occur during a period of seven days or less. He argues that the seven-day period is a material element of the statute that the State failed to allege in the indictment, which only stated that the thefts occurred “on or about” May 27, 2014. Wallace further contends that pursuant to Apprendi v. New Jersey, 530 U. S. 466, 490 (IV) (120 SCt 2348, 147 LE2d 435) (2000), any fact that increases the penalty for a crime beyond the statutory maximum, other than a prior conviction, must be submitted to a jury and proven beyond a reasonable doubt. Thus, he argues, because the time period of seven days would act to increase his crime from a misdemeanor to a felony, it was a material element of Count 3, and the jury should have been instructed to make that determination.

OCGA § 16-8-14 (b) (2) provides that a person who commits the offense of theft by shoplifting is guilty of a felony where the property stolen has a value in excess of $500, and

[a] person convicted of the offense of theft by shoplifting, as provided in subsection (a) of this Code section, when the property which was the subject of the theft is taken from three separate stores or retail establishments within one county during a period of seven days or less and when the aggregate value of the property which was the subject of each theft exceeds $500.00 in value, commits a felony. . . .

OCGA § 16-8-14 (b) (3).

Here, even assuming without deciding that the date was a material averment of Count 3 of the indictment and the State had to prove that the aggregate shoplifting offenses happened within a seven-day period or less, that period of time was sufficiently alleged in the indictment here by saying that the crimes occurred “on or about” May 27, 2014. Moreover, there was no fatal variance because the evidence at trial demonstrated that the shoplifting that occurred at the three stores at issue in Count 3 occurred on the same day, May 27, 2014.

Likewise, Wallace’s contention that his conviction under Count 3 was void under the precedent established by Apprendi because the aggregate crimes provision in OCGA § 16-8-14 (b) (3) increased the penalty of the crime beyond the prescribed statutory maximum is meritless. “Because the sentence at issue was within the statutory maximum and did not extend [Wallace’s] punishment beyond the prescribed range supported by the jury’s verdict, Apprendi simply does not apply to this sentencing scheme.” (Citations and punctuation omitted.) Ray v. State, 338 Ga. App. 822, 834-835 (8) (a) (792 SE2d 421) (2016).

2. Wallace also contends that trial counsel was ineffective for failing to impeach several witnesses and in failing to point out during closing argument the discrepancies in certain evidence. We do not agree.

To establish ineffective assistance of counsel, Wallace must satisfy a two-prong test. He

must show [both] that trial counsel’s performance [was deficient in that it] fell below a reasonable standard of conduct and that [it was prejudicial because] there existed a reasonable probability that the outcome of the case would have been different, had it not been for counsel’s deficient performance. If [Wallace] fails to [prove] either prong of the [two-part] test, this relieves the reviewing court of the need to address the other prong.

(Citations and punctuation omitted.) Scott v. State, 290 Ga. 883, 889 (7) (725 SE2d 305) (2012).

Wallace first contends that trial counsel was ineffective for failing to call witnesses who allegedly overheard jailhouse conversations between Grady and Wallace in which Grady told Wallace that he had told his attorney that Wallace had nothing to do with the robberies. Two of the witnesses — both who had worked in food service at the Whitfield County Jail — testified about the conversation at the motion for new trial hearing. Wallace’s trial attorney testified that Wallace provided him with the names of the potential witnesses, but that in his professional opinion, testimony about jailhouse conversations between co-defendants often “did not work out favorably during the course of a trial,” and could open the door to other issues. He also said that it would be expected that Grady would tell Wallace something totally different from what he was telling his attorneys and that their trial strategy was to discredit Grady, emphasize his extensive shoplifting history, and demonstrate the lack of evidence of Wallace’s participation in the crimes.

“In the realm of specific decisions regarding trial strategy, and in particular decisions about which witnesses should be called to testify, defense attorneys are afforded wide discretion.” (Citation and punctuation omitted.) Muller v. State, 284 Ga. 70, 72 (3) (663 SE2d 206) (2008). See Perdue v. State, 298 Ga. 841, 845 (3) (785 SE2d 291) (2016) (noting that “it is well established that the decision as to which defense witnesses to call is a matter of trial strategy and tactics”) (citation and punctuation omitted). Here, trial counsel testified that, based on his professional judgment, testimony about jailhouse conversations can be detrimental rather than helpful at trial, and we have held that trial counsel does not render ineffective assistance when he fails to call a witness that he determines would not be favorable for the defendant. See Davenport v. State, 308 Ga. App. 140, 154 (2) (b) (706 SE2d 757) (2011).

Moreover, Wallace does not demonstrate that, given the overwhelming evidence of his involvement in the crimes, there was a reasonable probability that the failure of trial counsel to call these witnesses would have resulted in a different outcome. Wallace drove Grady to the various stores, he is seen on the surveillance tape pointing out various items, Wallace is shown leaving stores shortly before Grady exits with the items, and the stolen items were located in Wallace’s truck. Accordingly, this contention of ineffectiveness of trial counsel fails.

Wallace’s contention that trial counsel was ineffective for not impeaching two witnesses about a discrepancy whether all of the items stolen from Walmart were returned to the store, also fails. The record demonstrates that, according to an incident report, the lip gloss products were kept by the police for use as evidence, rather than returned to Walmart, which was contrary to the testimony of two witnesses that all of the products were returned to Walmart. Trial counsel testified at the motion for new trial hearing that he did not catch the discrepancy But, as noted, prejudice, in addition to deficiency, must be demonstrated to establish ineffectiveness of trial counsel. Wallace has failed to show that there was a reasonable probability that the outcome would have been different if trial counsel had impeached the witnesses about the discrepancy. “With respect to prejudice, . . . [Wallace] must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Citation and punctuation omitted.) Brown v. State, 288 Ga. 902, 907 (5) (708 SE2d 294) (2011). Wallace has failed to do so.

Likewise, we also find meritless Wallace’s contention that trial counsel was ineffective for failing to point out in his closing argument the discrepancy between the evidence and the indictment, where the evidence demonstrated that a witness testified that “Hard Candy lip gloss” was stolen and the indictment charged Wallace with taking “lip lacquer.” Wallace contends that lip gloss was the only evidence connecting him to the crime, and because the closing statement was the last chance that trial counsel had to argue about the discrepancies in the evidence, trial counsel was deficient for failing to do so.

In denying the motion for new trial, the trial court found, and this Court agrees, that, based on trial counsel’s testimony, trial counsel “planned his closing argument to focus on the mere presence theory [rather than evidentiary discrepancies] he was presenting for [Wallace]. Trial counsel’s argument was in furtherance of the trial strategy [and] fell within the broad range of reasonable professional conduct, and was not deficient.”

The Strickland [v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984)] standard must be applied with scrupulous care, lest intrusive post-trial inquiry threaten the integrity of the very adversary process the right to counsel is meant to serve. Even under de novo review, the standard for judging counsel’s representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is all too tempting to second-guess counsel’s assistance after conviction or adverse sentence. The question is whether an attorney’s representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom.

Decided June 6, 2017.

Margaret E. Heinen, for appellant.

Herbert M. Poston, Jr., District Attorney, V. Keely Parker, Assistant District Attorney, for appellee.

(Citation and punctuation omitted.) Brown, 288 Ga. at 907-908 (5).

In this case, the trial court did not err in rejecting Wallace’s ineffectiveness claims.

Judgment affirmed.

McMillian and Mercier, JJ., concur.


author: Ray, Judge.

text:
    A17A0091, A17A0092.
    SLOSBERG v. GILLER et al.; and vice versa.
    (801 SE2d 332)
   Ray, Judge.

This contentious case involves a dispute between the parties which arose after their elderly father revoked an existing power of attorney, executed a new power of attorney, and made changes to certain financial accounts relating to his estate-planning strategy The son, Robert Slosberg, filed suit against his sisters, Suzanne Giller and Lynne Amy Seidner, seeking injunctive relief and asserting various claims against Giller and Seidner based on allegations that the father’s actions were the product of diminished mental capacity and undue influence. In response, Giller and Seidner asserted counterclaims against Slosberg for defamation, tortious interference, declaratory judgment, and equitable relief. On the parties’ cross-motions for summary judgment, the trial court granted summary judgment to Giller and Seidner on the parties’ respective claims pertaining to the validity and enforceability of the documents at issue, finding that there was “no evidence of mental incapacity on the part of [the father] or that he was under any undue influence at or near any of the pertinent times the operative documents . . . were signed by [the father]However, the trial court granted summary judgment to Slosberg on Giller and Seidner’s counterclaims for tortious interference and defamation. These cross-appeals ensued, and we consolidate the appeals for the purposes of review. For the reasons that follow, we reverse the portion of the judgment challenged in Case No. A17A0091, and we affirm in part and reverse in part the portion of the judgment challenged in Case No. A17A0092.

Case No. A17A0091

1. In related enumerations of error, Slosberg contends that the trial court improperly weighed the evidence and applied an incorrect legal standard when it disposed of his undue influence claim on summary judgment. Specifically, he argues that the trial court usurped the role of the finder of fact when it discredited his evidence bearing upon the issue of undue influence and limited its consideration of the evidence to the facts and circumstances that existed at or near the time the father signed the documents. We agree.

Undue influence which overturns an otherwise legal contract [or will] is the exercise of sufficient control over the person, the validity of whose act is brought in question, to destroy his free agency and constrain him to do what he would not have done if such control had not been exercised.

(Citation and punctuation omitted.) Cobb v. Garner, 158 Ga. App. 110, 111 (1) (279 SE2d 280) (1981). To maintain a claim of undue influence, the requisite control must operate on the mind of the person at the time he or she is executing the document in question. See Simmons v. Norton, 290 Ga. 223, 224 (719 SE2d 421) (2011). However, a claim of undue influence “may be supported by a wide range of testimony, since such influence can seldom be shown except by circumstantial evidence.” (Citation and punctuation omitted.) Skelton v. Skelton, 251 Ga. 631, 634 (5) (308 SE2d 838) (1983). Furthermore, as our Supreme Court has acknowledged, evidence as to the facts and circumstances that occurred before and after the execution of the documents at issue may be considered by the trier of fact when determining whether undue influence existed at the time the documents were executed. See Knox v. Knox, 213 Ga. 677, 679-680 (2) (101 SE2d 89) (1957).

Although there is sufficient evidence in the record to show that the father’s actions in executing the documents may have been the logical result of Slosberg’s litigiousness regarding his father’s financial affairs and his increasing animosity towards Giller and Seidner, there is also evidence to show that the father was suffering from memory impairment, mental confusion, and susceptibility to influence in the months leading up to the time he executed the documents at issue. In addition to these factors, Slosberg presented evidence that Giller and Seidner made at least some efforts to control the father and isolate him from Slosberg, that Giller and Seidner took actions on behalf of the father that he did not authorize or understand, and that the father made statements to certain witnesses indicating that he felt like he was being brainwashed.

Upon our review of the transcript of the hearing on the cross-motions for summary judgment, it appears that the trial court discredited Slosberg’s evidence of undue influence, adopted Giller and Seidner’s theory of the case, and limited the scope of evidence to the time periods in which the father executed the challenged documents. Given that claims of undue influence can be supported by a wide range of evidence regarding the circumstances that existed both before and after the execution of the documents in question, see Skelton, supra at 634 (5), and Knox, supra at 679-680 (2), andbecause the trier of fact has the duty of resolving any conflicts in the evidence, determining the credibility of witnesses, and drawing the ultimate conclusion as to the facts, see Smith v. Tenet HealthSystem Spalding, 327 Ga. App. 878, 879 (1) (761 SE2d 409) (2014), the question of whether undue influence existed at the time the challenged documents were executed in this particular case is a question for the trier of fact. See Mathis v. Hammond, 268 Ga. 158, 160 (3) (486 SE2d 356) (1997). Accordingly, the trial court erred in disposing of Slosberg’s claim of undue influence by summary judgment.

2. Slosberg also contends that the trial court erred in granting summary judgment to Giller and Seidner on their counterclaims for declaratory judgment, which sought a declaration that the documents at issue were not the product of mental incapacity or undue influence and were, therefore, valid and enforceable. As an initial matter, we note that “[t]he object of a declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated[,] . . . [and] declaratory judgment is not available to a party merely to test the viability of that party’s defenses.” (Citations and punctuation omitted.) Atlanta Nat. League Baseball Club v. F. F., 328 Ga. App. 217, 220-221 (761 SE2d 613) (2014). Furthermore, the trial court’s declaratory judgment regarding the validity and enforceability of documents at issue was based on its erroneous finding that there was no genuine issue of material fact with regard to Slosberg’s claim of undue influence. See Division 1, infra. Accordingly, the trial court’s declaratory judgment must also be reversed.

Case No. A17A0092

3. In their cross-appeal, Giller and Seidner contend that the trial court erred in awarding summary judgment to Slosberg on their counterclaims for tortious interference.

The elements of a tortious interference claim are:

(1) improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant induced a breach of contractual obligations or caused a party or third parties to discontinue or fail to enter into an anticipated business relationship with the plaintiff [s]; and (4) the defendant’s tortious conduct proximately caused damage to the plaintiff[s].

(Citation and punctuation omitted.) Tribeca Homes v. Marathon Investment Corp., 322 Ga. App. 596, 598 (2) (745 SE2d 806) (2013). As to the first element of a tortious interference claim, to be “without privilege” means that the defendant is a stranger to the contract or business relationship. See Cox v. City of Atlanta, 266 Ga. App. 329, 332 (1) (596 SE2d 785) (2004). As to the second element, the term “malice” encompasses any act on the part of the defendant which constitutes unauthorized interference or interference without legal justification or excuse. See Renden, Inc. v. Liberty Real Estate Limited Partnership III, 213 Ga. App. 333, 334 (2) (444 SE2d 814) (1994).

(a) In regard to Giller and Seidner’s claims that Slosberg tor-tiously interfered with the administration of the father’s IRA and trust accounts, the issue of whether Slosberg acted without privilege and with malice in challenging the administration of the accounts depends upon the ultimate determination as to whether the father’s changes in the beneficiaries of those accounts were the product of undue influence, which in this case is an issue for the trier of fact. As the validity and enforceability of the father’s changes to his IRA and trust accounts have yet to be deter mined by the trier of fact, summary judgment as to these tortious interference claims was improper.

(b) In regard to Giller and Seidner’s claim that Slosberg tor-tiously interfered with the administration of the father’s agency account, the record shows that Slosberg is a beneficiary and, thus, cannot be liable for tortious interference. See generally Atlanta Mkt. Center Mgmt. Co. v. McLane, 269 Ga. 604, 608-609 (2) (503 SE2d 278) (1998) (one who would benefit from a contract cannot be liable for tortious interference because he is not a stranger to the contract); Lake Tightsqueeze v. Chrysler First Financial Svcs. Corp., 210 Ga. App. 178, 181 (5) (435 SE2d 486) (1993) (same). Accordingly, the trial court did not err in granting summary judgment to Slosberg on this tortious interference claim.

Decided June 6, 2017

Bloom Sugarman, F. Skip Sugarman, Ariel D. Zion, Brandon C. Arnold, for Slosberg.

Raiford & Dixon, Tyler C. Dixon; Janet Litt, for Giller et al.

(c) Giller and Seidner also argue on appeal that Slosberg tor-tiously interfered with the performance of their duties under their powers of attorney and tortiously interfered with Seidner’s employment. However, Giller and Seidner did not assert such claims below, nor did the trial court address such claims in its ruling on summary judgment. Accordingly, we cannot consider these claims on appeal. See Nash v. Studdard, 294 Ga. App. 845, 849 (2) (670 SE2d 508) (2008).

Judgment affirmed in part and reversed in part in Case No. A17A0092. Judgment reversed in Case No. A17A0091.

Dillard, P. J., and Self, J., concur.


author: Rickman, Judge.

text:
    A17A0369.
    GILMORE v. THE STATE.
    (802 SE2d 27)
   Rickman, Judge.

Jermaine James Gilmore was tried by a jury and convicted of aggravated assault, burglary, and aggravated battery Following the denial of his motion for new trial, Gilmore appealed, contending that the trial court erred by granting his motion to withdraw his guilty plea and denying his motion for directed verdict. Gilmore also contended, in the alternative, that his plea counsel rendered ineffective assistance by moving to withdraw his guilty plea. In an unpublished opinion this Court found that the trial court did not abuse its discretion by granting Gilmore’s motion to withdraw his guilty plea or err by denying his motion for directed verdict. Gilmore v. State, 336 Ga. App. XXIII, pp. 3-6 (1) and 9-11 (3) (Case No. A15A2288) (March 8, 2016) (Gilmore I). However, this Court vacated the trial court’s judgment that Gilmore’s plea counsel was effective and remanded this case to the trial court for further proceedings. Gilmore I at 6-9 (2). On remand, following a hearing, the trial court again denied Gilmore’s motion for new trial. This appeal follows.

The pertinent procedural history of this case is as follows:

Prior to trial... Gilmore had entered a negotiated guilty plea to aggravated assault, burglary, and robbery. He was sentenced as a recidivist under OCGA § 17-10-7 (c) to serve three concurrent 20-year sentences, with 10 years in confinement followed by 10 years on probation. After sentencing, however, he moved to withdraw his plea, arguing that he did not knowingly and voluntarily plead guilty to being sentenced as a “Class ‘C’ Recidivist.” Finding that Gilmore did not knowingly and voluntarily plead because he had not been advised on the record of his recidivist sentencing, its meaning, or its consequences, the trial court granted his motion to withdraw his guilty plea and vacated his sentence.
Later, however, Gilmore moved to vacate the trial court’s order allowing withdrawal of his guilty plea. The trial court denied that motion on the morning of trial, reasoning that it had allowed Gilmore to withdraw his plea to correct a manifest injustice because he had not been informed of his recidivist sentencing and noting that Gilmore “doesn’t want to go back to the sentence that I entered. He wants to withdraw his guilty plea and go back to a different sentence without recidivism[.]”
At trial, a jury convicted Gilmore of aggravated assault, burglary, and aggravated battery He was sentenced to serve 40 years in confinement without parole, followed by 20 years on probation, upon proper notice and proof of his recidivism.

Gilmore I at 2-3.

In Gilmore I, this Court remanded this case to the trial court for the trial court to determine whether Gilmore

had actually begun to serve [his sentence pursuant to the guilty plea] after the oral pronouncement [which made no reference to recidivist sentencing] and prior to the sentencing form [which indicated Gilmore was being sentenced as a “Class ‘C’ Recidivist”] having been signed by the judge.

Gilmore I at 9 (2). Following a hearing, the trial court determined that “there is no evidence that Gilmore began to serve his sentence between the time that the [trial court] pronounced the oral sentence and the minutes later when the written order was signed.” Gilmore concedes this issue on appeal.

After conceding the only issue that this case was remanded for, Gilmore continues to argue that his plea counsel rendered ineffective assistance of counsel by failing to advise him of other available options to challenge the recidivist portion of his sentence other than withdrawing his guilty plea. Specifically, Gilmore argues that his counsel was ineffective for neglecting to challenge his recidivist sentence on the basis that the State failed to meet its burden of proving his recidivism. To the extent that Gilmore’s arguments have not already been rejected by this Court in Gilmore I, for the following reasons we find that his claim has no merit.

To prevail on an ineffective assistance of counsel claim, a criminal defendant must show both that his counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the proceedings would have been different. Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012). “The likelihood of a different, result must be substantial, not just conceivable.” (Citation omitted.) Id. In challenging counsel’s strategic decisions, a defendant “must show that no competent attorney, under similar circumstances, would have made [the same decision].” (Citation and punctuation omitted.) Davis v. State, 290 Ga. 584, 585-586 (2) (723 SE2d 431) (2012). On appeal “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation omitted.) Hill, supra.

Gilmore I at 6-7 (2).

In Gilmore I, this Court noted that, in some instances, the State’s burden of proving a defendant’s recidivism may be waived. Gilmore I at 6 (1) n. 1. See von Thomas v. State, 293 Ga. 569, 572-573 (2) (748 SE2d 446) (2013) (listing cases). “A plea agreement is, in essence, a contract between a defendant and the State.” (Citation and punctuation omitted.) Simmons v. State, 292 Ga. 265, 267 (2) (736 SE2d 402) (2013). See Martin v. State, 207 Ga. App. 861, 862-863 (429 SE2d 332) (1993). Gilmore’s plea counsel testified at the hearing on his first motion for new trial that she negotiated his guilty plea with the District Attorney’s Office and that one of the terms of the negotiated plea agreement was that he would be sentenced as a recidivist. Gilmore’s plea counsel further testified that Gilmore would have been sent a copy of the recidivist notice and that she discussed the recidivist notice with him during “lengthy back and forth discussions about the plea offer.” In addition, the trial court noted for the record that prior to taking the plea, counsel for both sides explained the terms of the proposed plea agreement in a meeting in the trial court’s chambers and “they asked me to accept this negotiated plea as a recidivist plea.” The trial court explained that he reluctantly, due to the seriousness of the offense, agreed to accept the recidivist plea with a relatively light sentence because the victim was experiencing health problems.

At Gilmore’s second motion for new trial hearing, his plea counsel testified that she filed a motion to withdraw his guilty plea because he requested that she do so and that she did not speak with him about other possible grounds for relief because “the [plea] deal originally was under a recidivist notice.” Gilmore’s plea counsel also testified that she did not think it would have been appropriate to file a motion to correct Gilmore’s sentence because “I’m not going to affirmatively he to the Court and say, oh well, this is something that we didn’t bargain for.” We recognize that “[t]he failure to make a meritless motion cannot provide the basis upon which to find ineffective assistance of counsel.” Funck v. State, 296 Ga. 371, 374(1) (768 SE2d 468) (2015).

However, we need not determine definitively whether Gilmore’s plea counsel could have successfully challenged his sentence by alternate means because Gilmore invited the error that he now complains of. As noted in Gilmore I at 8 (2) n. 2, “[t]his Court has repeatedly held that, in connection with an ineffective assistance claim, a defendant cannot blame trial counsel for a decision he himself made over counsel’s objection.” (Citation and punctuation omitted.) Brewer v. State, 328 Ga. App. 801, 804 (762 SE2d 622) (2014). Gilmore’s plea counsel testified that “[t]he filing of the motion [to withdraw his guilty plea] was to preserve what he wanted to do, but I had hoped that after we discussed it and reasoned about it he would withdraw that and would leave it as it was. And I encouraged him very strongly to do so.” “I remember explaining to [Gilmore] that if we were successful in that course of action that he would be facing up to 140 years without parole if he were convicted on all the counts. ... I believe that we had a very good deal to start off with and that it shouldn’t be bothered and that we should withdraw the motion.”

Decided June 6, 2017.

David E. Clark, for appellant.

S. Hayward Altman, District Attorney, John A. Fitzner III, Assistant District Attorney, for appellee.

When Gilmore moved to vacate the trial court’s order allowing withdrawal of his guilty plea, Gilmore testified that he asked his plea counsel to withdraw his guilty plea, “[b]ut at the time that I asked she didn’t do it because she said that wasn’t the right thing to do.... I had to threaten her with the Bar, writing the Bar Association and stuff like that before she put the motion to withdraw my plea in.” In the face of his plea counsel’s advice that if he withdrew his plea he could face up to 140 years in the state prison system without the opportunity for parole, Gilmore insisted that his plea counsel go forward with the motion, even going so far as to threaten reporting her to the bar association if she failed to do so. Now, he wishes to claim his plea counsel was ineffective for pursuing the same motion. “In other words, [Gilmore] rolled the dice hoping that they would come up sixes; when they came up snake eyes, he now claims that rolling was a mistake in the first place.” Priest v. State, 335 Ga. App. 754, 759 (1) n. 2 (782 SE2d 835) (2016).

“Under these circumstances, [plea] counsel cannot be labeled ineffective where the defendant proceeded against counsel’s advice and blundered.” Sanders v. State, 211 Ga. App. 859, 861 (1) (440 SE2d 745) (1994). Accordingly, the trial court did not err in concluding that Gilmore failed to show that his plea counsel was ineffective. See Brewer, 328 Ga. App. at 804-805; see also Alvarado v. State, 271 Ga. App. 714, 718-719 (3) (610 SE2d 675) (2005); Sanders, 211 Ga. App. at 861-862 (1).

Judgment affirmed.

Ellington, P. J., and Andrews, J., concur.

       Although the “law of the case” rule has been statutorily abolished, any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be. OCGA § 9-11-60 (h). This law of the case rule is not confined to civil cases, but applies also to rulings made by appellate courts in criminal cases. There is an exception to this rule when the evidentiary posture of the case changes such that the original evidence submitted is found to be insufficient, and the deficient evidence is later supplemented. The evidentiary posture of this case has not changed since our previous decision in [Gilmore I], supra; therefore, the “law of the case” rule applies and that previous decision is binding on this Court.
      (Citations and punctuation omitted.) Pierce v. State, 278 Ga. App. 162, 163-164 (1) (628 SE2d 235) (2006). See Gilmore I at 6-8 (2).


author: Branch, Judge. McFADDEN, Presiding Judge, BETHEL, Judge,

text:
    A17A0569.
    BISHOP v. THE STATE.
    (802 SE2d 39)
   Branch, Judge.

In 2015, 15 years after her conviction for possession of cocaine, Danielle Bishop filed a petition for the retroactive grant of first offender status under subsection (d) of OCGA § 42-8-66, a procedure which was added to the statute in 2015 and became effective on July 1, 2015. The trial court dismissed the motion on the ground that the petition was not available as to sentences entered before its effective date. On appeal, Bishop argues that the trial court should have considered her motion on the merits. We disagree and therefore affirm.

The relevant facts are not in dispute. On February 3, 2000, Bishop pled guilty to a felony charge of possession of cocaine and was sentenced to two years probation. On October 20, 2015, having found that her conviction appeared on a background check in Nevada, Bishop filed a petition “to resentence [her] felony conviction” under the First Offender Statute and OCGA § 42-8-66. The State responded to Bishop’s motion with arguments including that because the Act provides that it “shall apply to sentences entered on or after” July 1, 2015, and because Bishop’s sentence was entered before that date, the petition and procedures authorized by the statute were not available to her. After a hearing, the trial court dismissed Bishop’s petition on this ground. Bishop then filed a timely notice of appeal in which she asserted that the trial court’s order was “a final judgment of the Superior Court” such that this Court had jurisdiction over the appeal.

Bishop argues that the trial court erred when it failed to consider the merits of her petition for retroactive application of first offender treatment. We disagree.

Bishop brought her petition pursuant to OCGA § 42-8-66, which provides in relevant part as follows:

(a) An individual who qualified for sentencing pursuant to this article but who was not informed of his or her eligibility for first offender treatment may, with the consent of the prosecuting attorney, petition the superior court in the county in which he or she was convicted for exoneration of guilt and discharge pursuant to this article.
(c) In considering a petition pursuant to this Code section, the court may consider any: (1) Evidence introduced by the petitioner; (2) Evidence introduced by the prosecuting attorney; and (3) Other relevant evidence.
(d) The court may issue an order retroactively granting first offender treatment and discharge the defendant pursuant to this article if the court finds by a preponderance of the evidence that the defendant was eligible for sentencing under the terms of this article at the time he or she was originally sentenced and the ends of justice and the welfare of society are served by granting such petition.

(Punctuation omitted; emphasis supplied.)

The question we face is a simple one: whether the 2015 Act’s command that it “shall apply to sentences entered on or after” July 1, 2015, necessarily means that the petition authorized by OCGA § 42-8-66 (d) is not available to defendants whose sentences were entered before that date. Ga. L. 2015, pp. 422, 519, Act 73, § 6-1.

[I]n considering the meaning of a statute, our charge as an appellate court is to presume that the General Assembly meant what it said and said what it meant.... [T]oward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text in its most natural and reasonable way, as an ordinary speaker of the English language would, and seek to avoid a construction that makes some language mere surplusage.... [W]hen the language of a statute is plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.

In re Whittle, 339 Ga. App. 83, 86 (1) (793 SE2d 123) (2016) (punctuation and footnotes omitted). We have seen no law suggesting that because the section of a law setting its effective date is, as here, not codified (see OCGA § 42-8-66, 2016 Supplement to Volume 29A [2014 edition], p. 110), that section has less dignity or force than other sections of the same law. On the contrary, at least one federal court considering this issue has concluded that even when the effective date of a statutory amendment was not codified, “it was enacted, and [thus] has the force of law.” Patten v. United States, 116 F3d 1029, 1033 (II), n. 3 (4th Cir. 1997).

Here, the General Assembly instructed that the Act, including OCGA § 42-8-66 (d), “shall apply to sentences entered on or after” July 1, 2015, and so we conclude that the petition authorized by OCGA § 42-8-66 (d) is not available to defendants whose sentences were, like Bishop’s, imposed before that date.

Bishop seeks to avoid this conclusion by emphasizing the remedial purpose of HB 310 and by arguing that a trial court’s grant of first offender status is a matter of legislative grace that does not affect any vested rights. See, e.g., Canton Textile Mills v. Lathem, 253 Ga. 102, 105 (1) (317 SE2d 189) (1984) (the legislature could revive a workers’ compensation claim which would have been barred by a previous limitation period by enacting a new statute of limitation without violating the constitutional prohibition against retroactive laws). As our Supreme Court noted in Canton Mills itself, however, the “general rule” is that “laws prescribe only for the future” and will be given retrospective operation only when “the language imperatively requires it, or when an examination of the act as a whole leads to the conclusion that such was the legislative purpose.” Id. at 103 (1); see also Mosley v. Lowe, 298 Ga. 363, 365 (1) (782 SE2d 43) (2016) (applying an amended statute retroactively when “the clear and unambiguous terms of the amended statute provide for its applicability to arrests pre-dating” the amendments’ effective date). In this case, the law clearly applies only to sentences entered after July 1, 2015. That this result may not comport with what Bishop perceives to be the remedial purpose of the statute is an argument properly directed to the General Assembly rather than this Court. See Allen v. Wright, 282 Ga. 9, 14 (3) (644 SE2d 814) (2007) (if a statute could be “amended or rewritten so as not to be preempted” by federal law, “that is the responsibility of the General Assembly and not the courts”); Whittle, 339 Ga. App. at 88-89 (1).

The trial court did not err when it dismissed Bishop’s petition.

Judgment affirmed.

McFadden, P. J., and Bethel, J., concur fully and specially.

McFADDEN, Presiding Judge,

concurring fully and specially.

I concur fully The effective date provision is not ambiguous: OCGA § 42-8-66 is “effective July 1, 2015, and shall apply to sentences entered on or after such date.” Ga. L. 2015, pp. 422, 519, Act 73 (HB 310), § 6-1. I nevertheless suspect — and write separately to draw to the General Assembly’s attention the possibility — that we are enforcing an unintended consequence.

The effective date provision is the penultimate sentence of a 65-page act. That act extensively modifies the law of probation, particularly the imposition of probated sentences in the first instance. See Ga. L. 2015, pp. 422, 423, 440, 455, Act 73 (HB 310), §§ 1-1, enacting OCGA §§ 42-3-52, 42-3-112; 3-2, enacting OCGA §§ 42-8-102, 42-8-103, 42-8-104; 4-1, amending OCGA §§ 42-8-34, 42-8-35, 42-8-35.1, 42-8-35.2, 42-8-35.3, 42-8-35.4, 42-8-35.5, 42-8-35.6, 42-8-35.7,42-8-39; but see amendments to OCGA §§ 42-8-34, 42-8-38 (provision for revocation of probation). It would make no sense to retroactively modify statutes governing the imposition of sentences, and any such modifications would be constitutionally suspect. See Ga. Const, of 1983, Art. I, Sec. I, Par. X.

Decided June 6, 2017.

W. Bruce Maloy, Brenda J. Smeeton, Michele M. Young, for appellant.

Robert D. James, Jr., District Attorney, Anna G. Cross, Assistant District Attorney, for appellee.

But I see no constitutional impediment to extending the relief afforded by OCGA § 42-8-66 to persons sentenced before July 1,2015. When Bishop was sentenced, OCGA § 42-8-61 directed that she be “informed of the terms of [the First Offender Act] at the time of imposition of sentence.” See Ga. L. 2015, pp. 422, 508, Act 73 (HB 310), § 5-74. OCGA § 42-8-61 was amended and expanded in the act before us, but not fundamentally altered. Id. OCGA § 42-8-66 was enacted to provide relief for persons who were not afforded the information to which they were entitled under OCGA § 42-8-61.1 see no reason to imagine that worthy candidates for that relief are rarer among persons sentenced before July 1, 2015, than after.

BETHEL, Judge,

concurring fully and specially.

Any attempt to discern legislative intent beyond the express language passed by a legislative body is as practical and productive as attempting to nail Jell-0 to the wall. Further, it is not fitting for the judicial branch to endeavor to “correct” the errors of the legislative branch other than in cases where the legislative branch has exceeded the authority granted it by the people. For these reasons, I concur fully in Judge Branch’s opinion.

Like Presiding Judge McFadden, I write separately to draw the attention of the General Assembly to this issue. Any responsible and engaged citizen of Georgia over the last seven years has seen the dramatic transformation of our criminal justice laws and systems. Ms. Bishop believes she is in the class of people this transformation was intended to positively affect. If so, the General Assembly has work left on this front.

       See Ga. L. 2015, pp. 422, 519, Act 73 (HB 310), § 6-1 (“This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date.”). In 2016, the General Assembly again amended the first offender statutes, including OCGA § 42-8-66, in ways not relevant here. See Ga. L. 2016, pp. 443, 477, Act 460 (SB 367), § 6A-1.