text:
    A14A2158.
    WHITE v. RAINES.
    (771 SE2d 507)
   Boggs, Judge.

William John White appeals from the trial court’s order continuing an ex parte temporary protective order (“TPO”) entered against him. Because the trial court lacked authority to extend the TPO, we reverse.

The record shows that on April 17, 2014, White’s ex-wife, Susan Raines, filed a “Petition for Stalking Temporary Protective Order” against White pursuant to OCGA § 16-5-94. Alleging that White had, among other things, flooded her with unwanted telephone calls and text messages, accessed her bank account, and followed her, Raines claimed that White’s actions placed her in reasonable fear for her and her family’s safety. The petition requested a hearing and entry of a 12-month protective order.

On the same day, the trial court entered an ex parte TPO enjoining White from harassing, contacting, or approaching within 500 yards of Raines or her immediate family. The order also directed White to appear before the court on May 9, 2014, to “show why the demands of [Raines] should not be granted.” Shortly after the trial court issued the ex parte order, Raines reported to police that White had violated the TPO, and White was arrested for aggravated stalking.

Both parties appeared at the May 9,2014 hearing. The trial court began by asking Raines, who was proceeding pro se, about White’s arrest. Counsel for White interjected that the parties were there “on the ex parte TPO,” not the arrest warrant. Asserting that the warrant was “part of the evidence,” the court questioned Raines about the circumstances leading to the arrest. The court then asked her generally about the allegations underlying her petition. Raines described the conduct by White that she found objectionable, including his constant effort to communicate with her. White’s counsel responded that White and Raines had enjoyed consensual communication since their divorce, with both parties contacting each other and spending time together.

At that point, the trial court halted the proceedings. Rather than addressing Raines’s petition, the court continued the hearing, stating:

Here’s my solution: I’m going to continue this hearing today. [White] clearly ignored the order that was issued as filed on April 17, to the extent that the police found probable cause to arrest him for aggravated [stalking]. But I’m going to continue this hearing today, leaving the order in place, and then we’ll come back in 60 days and depending on what his conduct and behavior is in the next 60 days, I’ll make a determination to either extend the order or dismiss the petition.

In a written order, the trial court rescheduled the hearing to July 11, 2014, and extended the TPO through that date. At White’s request, the trial court issued a certificate of immediate review. We subsequently granted White’s interlocutory appeal application, and this appeal followed.

1. White argues that the trial court erred in continuing the ex parte TPO without addressing the merits of Raines’s allegations. We agree.

A person who claims to have been stalked may petition the trial court for a restraining order against the alleged stalker. See OCGA § 16-5-94 (a); see also OCGA § 16-5-90 (a) (defining the offense of stalking). Based on the allegations in the petition, the court “may order such temporary relief ex parte as it deems necessary to protect the petitioner.” OCGA § 16-5-94 (c). Mere allegations alone, however, cannot sustain continuing relief. After entry of an ex parte TPO, the trial court must conduct an evidentiary hearing in accordance with the procedures governing family violence restraining orders, which provide:

Within ten days of the filing of the petition... or as soon as practical thereafter, but in no case later than 30 days after the filing of the petition, a hearing shall be held at which the petitioner must prove the allegations of the petition by a preponderance of the evidence as in other civil cases. In the event a hearing cannot be scheduled within the county where the case is pending within the 30 day period the same shall be scheduled and heard within any other county of that circuit. If a hearing is not held within 30 days, the petition shall stand dismissed unless the parties otherwise agree.

OCGA § 19-13-3 (c). See also OCGA § 16-5-94 (e) (“The provisions of subsections (c) and (d) of Code Section 19-13-3 . . . relating to family violence petitions, shall apply to petitions filed pursuant to this Code section.”).

The statutory scheme is clear. A trial court must assess the merits of a petitioner’s stalking allegations within 30 days after the petition is filed. See OCGA § 19-13-3 (c); Perlman v. Perlman, 318 Ga. App. 731, 734 (2) (734 SE2d 560) (2012) (“[W]ithin 30 days after the filing of the petition, a hearing must be held at which the petitioner ‘must prove the allegations of the petition by a preponderance of the evidence.’ ”) (punctuation omitted). This 30-day deadline cannot be ignored. In fact, it is so important that if a timely hearing cannot be scheduled in the county where the petition was filed, a hearing “shall be scheduled” in another county within the circuit. OCGA § 19-13-3 (c). Absent a timely hearing, the petition stands dismissed. Id.

Decided March 30, 2015.

David J. Maher, The Cherry Law Firm, Diane Cherry, for appellant.

Susan Raines, pro se.

The parties in this case appeared for a hearing within 30 days after Raines filed her petition. That hearing, however, did not comply with OCGA § 19-13-3 (c) in any substantive way. The trial court questioned Raines briefly, but she was not sworn in as a witness, and White did not have an opportunity to cross-examine her. No other witnesses testified. Moreover, although both parties presented documentary evidence to the trial court, they did so only after the court had decided to continue the proceeding, and there is no indication that the court considered the evidence. Simply put, the trial court did not address the merits of Raines’s petition or require her to prove her allegations by a preponderance of the evidence within 30 days after the petition was filed, as mandated by the statute. It instead maintained the “status quo,” extending the ex parte TPO so that it could assess how White behaved over the ensuing 60 days.

Given these circumstances, the trial court failed to meet the 30-day hearing requirement in OCGA § 19-13-3 (c). The petition and ex parte TPO, therefore, were dismissed by operation of law. See OCGA § 19-13-3 (c); Peebles v. Claxton, 326 Ga. App. 53, 55 (1) (755 SE2d 861) (2014) (stalking petition and ex parte TPO dismissed by operation of law where trial court continued TPO hearing and left TPO “in full effect” past 30-day deadline) (physical precedent only). It follows that the trial court lacked authority to extend the TPO through July 11, 2014.

2. Given our holding in Division 1, we need not address White’s remaining claims of error.

Judgment reversed.

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

       Although the ex parte TPO was only extended through July 11, 2014, and thus ended months ago, this appeal is not moot. As we have explained, when an appellate issue “is capable of repetition yet evades review, we do not view that issue as moot.” (Citations and punctuation omitted.) Elgin v. Swann, 315 Ga. App. 809, 810 (1) (728 SE2d 328) (2012). The issue in this appeal — the trial court’s authority to extend an ex parte TPO — may arise in other stalking cases. And given the short duration of stalking protective orders, as well as the time constraints of appellate courts, it is likely to evade review. See id. (although stalking protective order expired before appeal was resolved, the appellate issues were not moot because they were capable of repetition and evaded review).

       In fact, the trial court apparently believed the burden rested on White to show why Raines’s petition should not be granted. Raines, however, clearly bore the burden of proof. See OCGA §§ 16-5-94 (a), 19-13-3 (c); Pilcher v. Stribling, 282 Ga. 166, 167 (647 SE2d 8) (2007) (“In order to obtain a protective order based on stalking, the petitioner must establish the elements of the offense by a preponderance of the evidence.”).


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A14A2350.
    POTTS v. THE STATE.
    (771 SE2d 510)
   Branch, Judge.

Aerius Deshad Potts was tried by a Carroll County jury and convicted of seven counts of aggravated assault, three counts of felony cruelty to children, one count of armed robbery, one count of possession of a firearm during the commission of a crime, and one count of possession of a pistol or revolver by a person under 18 years of age. He now appeals from the denial of his motion for a new trial, asserting that the trial court erred in charging the jury and in failing to merge two of the aggravated assault convictions with the armed robbery conviction. We find no error in the trial court’s jury charge and therefore affirm the denial of Potts’s motion for a new trial. We further find, however, that the trial court erred in failing to merge two of Potts’s aggravated assault convictions (Counts 5 and 11) with his conviction for armed robbery (Count 4). We therefore vacate Potts’s convictions as to Counts 5 and 11 and remand the case so that Potts may be resentenced.

On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict. Martinez v. State, 306 Ga. App. 512, 514 (702 SE2d 747) (2010). So viewed, the record shows that on the evening of July 19, 2006, Pedro Espinoza was robbed at gunpoint, beaten, and shot while outside of his residence in the Elizabeth Village mobile home park in Carrollton. Inside the residence were Espinoza’s brother, Jorge Espinoza; Jorge’s wife, Paola Cabanas; and three children that Paola was babysitting: Sabrina, Pablo, and Valerie Monsivais. When Jorge opened the door of the mobile home to see what was happening to his brother, one of the assailants pointed his gun at Jorge. Jorge immediately closed the door and at least two assailants then began shooting at the trailer. Jorge suffered a gunshot wound to his arm, and Paola was struck and killed by one of the bullets shot into the home. Another bullet struck Sabrina Monsivais, injuring the child in both legs.

After police investigated the incident, Potts and eight other young men were arrested and indicted for malice murder, felony murder, armed robbery, aggravated assault (eight counts), felony cruelty to children (three counts), possession of a knife or gun during the commission of a crime, and possession of a pistol or revolver by a person under the age of 18. Potts was tried separately from his co-indictees, and the evidence presented at his trial included the testimony of two of those co-indictees, Christopher Coleman and Chade Ackey. Coleman testified that on the evening of July 19, 2006, he, together with Potts and co-indictees LaBryan Lytle, Varion “Snoopy” Shell, and Arlandra Deonte “Red” Holland, made a plan to rob someone. To that end, Coleman borrowed a white Dodge Neon from a friend so that he could drive the others. The original plan had been to travel to LaGrange to commit the robbery. As the group was driving around Carrollton, however, Potts made a phone call. After the call, Potts directed Coleman, who was not from Carrollton, to Elizabeth Village.

At the mobile home park, the group in the white car met Ackey, Cody Buchanan, Marcus Oliphant, and Randall “Boots” Laye, who were riding in a blue Oldsmobile. The two cars then moved to a different location in Elizabeth Village, closer to the exit. Potts obtained a nine millimeter pistol from one of the men in the blue car, and Coleman helped Potts load the gun with ammunition. Coleman testified that he, Lytle, Shell, Holland, and Potts (the group from the white car), together with Laye, walked toward a mobile home with two SUVs parked out front; Oliphant and Buchanan walked behind this group. Laye knocked several times on the door of the target mobile home, but got no response. As Laye was knocking, Pedro Espinoza came out of the neighboring home, leaned against the trunk of his car, and began smoking a cigarette. Coleman approached Pedro and asked him for a cigarette, and Espinoza responded that he had no more cigarettes.

Laye approached Pedro, put a gun to Pedro’s head, and demanded money. Potts then moved toward Pedro, and when Pedro stated that he had no money, Potts placed his gun in Pedro’s mouth, and Holland kneed Pedro in the groin, knocking him to the ground. At some point during this encounter, Potts took Pedro’s cell phone from him. Both Jorge and Paola came to the door of the home at different times during the attack on Pedro and asked what was going on. After the trailer door was opened and closed a second time, Potts started shooting, and Coleman followed suit. Coleman, Potts, and their companions then fled back to their cars and drove away from Elizabeth Village.

Later that evening, Coleman drove Oliphant, Potts, and Ackey to a rural area, where Potts disposed of the gun he had used, together with a second gun used in the crimes, by tossing them out of the car window. Investigators eventually recovered both of these guns, as well as a .380 caliber semi-automatic handgun which Coleman admitted to using in the crimes. Four cartridge cases and a bullet found at the scene, as well as the bullet recovered from Paola’s body, were matched by ballistics experts to the nine millimeter pistol used by Potts and to Coleman’s .380 caliber gun.

Ackey testified that on the evening in question he, Oliphant, and Buchanan were riding in a blue Oldsmobile driven by Randall Laye. Potts called Ackey’s cell phone, and Ackey immediately handed the phone to Oliphant, explaining that he did not want to talk to Potts because he viewed Potts as “unpredictable crazy.” After Oliphant spoke with Potts, Laye drove the car to Elizabeth Village, where Ackey and his companions met up with Potts and his companions. All of the young men riding in the white car exited their vehicle and walked over to the blue Oldsmobile. Once at the blue car, Potts asked Oliphant about a gun, and Oliphant handed him a nine millimeter pistol. According to Ackey, at that point “the talk was about fixing to rob somebody.” Ackey then saw all five occupants of the white car, including Potts, together with the three men with whom Ackey had been riding, walk down a hill in the direction of some mobile homes. Ackey, however, remained in the car because he did not want to participate in the robbery. According to Ackey, about five of the eight men who walked toward the mobile homes had guns.

Shortly after his companions walked away from the cars, Ackey heard gunfire, and all of the young men came running back toward the cars; everyone got back into the car in which they had come, and both cars fled the scene. Sometime later that night, Ackey and Oliphant met the white car in the parking lot of a Kroger store and joined the five men therein. The group then drove around the area for a while and as they did so, “some guns” were thrown out of the car.

The prosecution also introduced the taped police interview of Potts’s co-indictee Randall Laye. This Court previously affirmed Laye’s convictions under the indictment at issue. See Laye v. State, 312 Ga. App. 862 (720 SE2d 233) (2011). In doing so, we summarized the relevant portion of Laye’s custodial statement as follows:

[Laye told police] that he was driving the blue car; that he, Buchanan, and Oliphant were riding around when they got a call from Potts; that they drove to Elizabeth Village and met Potts, Holland, Shell, and Lytle, all of whom he knew, as well as a fifth person whom he did not know [Coleman], riding in a white Neon; that Laye and those in the blue car got out of the car; that he never got out of the blue car; that the two groups talked for about five minutes; that Potts said, “Before the night over, I’m going to shoot me somebody, boy”; that everybody in Potts’s car had a gun; that Potts and his group “just started shooting”; that he heard gunshots before he got out of the car; that Potts’s group “shot up the house”; and that when he heard the shots, he drove off.

Laye, 312 Ga. App. at 865.

The State also introduced a video recording of Potts’s police interview. During that interview, Potts admitted to riding in the white Dodge Neon on the night in question, but he initially insisted that the group had driven to LaGrange to meet some girls. Later in the interview, Potts stated that he, Holland, Shell, and Lytle had gotten in the white Neon with Coleman believing they were going to LaGrange. Instead, however, Coleman drove the group to Elizabeth Village. Once at Elizabeth Village, Potts and his companions all exited their car and met with the four men riding in the blue car; although Potts recognized the four men, he claimed he did not know them. At some point while they were in Elizabeth Village, Coleman began shooting, at which point Potts, Holland and Lytle ran back to the car. Potts stated that Coleman was carrying a .380 pistol and that Coleman did all the shooting. At one point in the interview, Potts stated that Coleman’s gun was the only one Potts saw. Later in the interview, however, Potts indicated that Lytle also had a gun. And although Potts claimed to have stood at a distance throughout the incident, his statement showed that he was close enough to the trailer to observe that one or more persons had come to the door of the mobile home and that the shooting did not start until after Potts’s companions thought they might have been seen.

In keeping with his statement to police, Potts’s defense at trial was that he was merely present at the scene of the crime. In support of this defense, he presented the testimony of Derricus Phillips, an inmate at the Carroll County Jail who had spent several months as a cell mate of Coleman. Phillips testified that during the time they shared a cell, Coleman told Phillips that he believed Potts was the reason Coleman “got caught.” Coleman explained that Potts had detailed knowledge of the robbery and shooting only because Coleman told Potts what had occurred at and around the Espinoza residence. Coleman also reportedly told Phillips that of the nine men involved in the incident, three of them (Ackey, Buchanan, and Potts) “didn’t do nothing” and Coleman planned to testify to that fact. Coleman changed his mind as to Potts, however, because he learned that Potts’s brother was a police officer and Coleman therefore believed that Potts had provided information to his brother that led to Coleman’s arrest.

At the charge conference, the trial court stated that in addition to the charge on parties to the crime, it was going to give the pattern charges on knowledge, mere presence, and mere association. The court further explained that it was going to incorporate additional language proposed by the State into the pattern charges on knowledge and mere presence. Defense counsel objected to the additional language, arguing that it was not supported by the evidence. The trial court overruled these objections. Following the charge to the jury, defense counsel reiterated her objection to the charges given on knowledge and mere presence.

During its deliberations, the jury requested to be recharged on party to a crime, aiding and abetting, felony murder, and malice murder. After conferring with counsel, and again over the objection of defense counsel, the trial court recharged the jury as it had requested. The jury returned a verdict of not guilty as to the charges of felony murder, malice murder, and the aggravated assault charge that resulted from the shooting of Pedro Espinoza, but found Potts guilty of all remaining charges. Following a sentencing hearing, the trial court sentenced Potts to life on the armed robbery count. The court also sentenced Potts to 20 years on each of the seven counts of aggravated assault, 20 years on each of the three counts of felony cruelty to children, 15 years on the count of possession of a firearm during the commission of a crime, and 12 months on the count of possession of a pistol or revolver by a person under the age of 18. The trial court imposed all of these sentences to be served consecutively to the life sentence and to one another. Thus, Potts, who was 15 years old at the time of the charged crimes, received a total sentence of life plus 206 years.

Potts was tried in February 2008 and sentenced in March of that year. He filed a motion for a new trial in April 2008, and subsequently amended that motion twice, once in March 2013 and once in June 2013. The trial court entered an order denying the new trial motion in January 2014, and in May 2014 the trial court granted Potts’s motion for leave to file an out-of-time appeal. This appeal followed.

1. The trial court supplemented the pattern jury charges on knowledge and mere presence with language that the court found was appropriate based on the evidence presented at trial. With respect to these two points of law, the trial court instructed the jury as follows:

Knowledge on the part of the Defendant that any of these crimes were being committed and that the Defendant knowingly and intentionally participated in or helped in the commission of such crimes must be proved by the State beyond a reasonable doubt. If you find from the evidence in this case that the Defendant had no knowledge that these crimes were being committed, or that the Defendant did not knowingly and intentionally commit, participate or help in the commission of these alleged offenses, then it would be your duty to acquit the Defendant. On the other hand, should you find beyond a reasonable doubt that the Defendant had knowledge that the crimes charged were being committed and the Defendant knowingly and intentionally participated or helped in the commission of them, then it would be —■ you would be authorized to convict the Defendant. If a person had knowledge of the intended crime and shared in the criminal intent of the principal actor, he is an aider and abettor. Hence, the defendant if the defendant was at the scene and did not disapprove or oppose the commission of the offense, a trier of fact may consider such conduct in connection with prior knowledge and would be authorized to conclude that the Defendant assented to the commission of the offense, that he lent his approval to it, thereby aiding and abetting commission of the crime.
Ladies and gentlemen, a jury is not authorized to find a person who was merely present at the scene of the commission of a crime at the time of its perpetration guilty of consent in or concurrence in the commission of the crime unless the evidence shows beyond a reasonable doubt that such person committed the alleged crime, helped in the actual perpetration of the crime or participated in the criminal endeavor.... Mere presence at the scene of a crime is insufficient to convict one of being a party to the crime, but presence, companionship and conduct before and after the offense are circumstances for which one’s participation in the criminal intent may be inferred.

The language italicized above is not found in the pattern jury charges on knowledge and mere presence, and it is this language to which Potts objected. In his brief, Potts offers three arguments as to why these “expanded” jury charges constitute reversible error. First, Potts appears to contend that a presumption of prejudicial error arises whenever a trial court deviates from the pattern instructions and that this presumption is strongest when the trial court “expands” the pattern instructions by supplementing them with additional language. It is well-established, however, that “jury instructions do not need to track, exactly, the language of pattern jury instructions.” Watkins v. State, 265 Ga. App. 54, 54 (1) (592 SE2d 868) (2004) (footnote omitted). Rather, the law simply requires that the jury charge, when viewed as a whole, fully and accurately explains to the jury the law they are to apply. Id. See also Sharpe v. State, 272 Ga. 684, 689 (6) (531 SE2d 84) (2000) (no reversible error exists where, when “[considered as a whole, the trial court’s charge fully and adequately informed the jurors of the correct legal principles” applicable to the case) (citation omitted); Hickey v. State, 325 Ga. App. 496, 499 (2) (753 SE2d 143) (2013) (“this Court views jury charges as a whole in determining whether the jury was fully and fairly instructed on the law of the case”) (citation omitted). Additionally, jury charges “must be tailored to the indictment and adjusted to the evidence admitted.” Carter v. State, 224 Ga. App. 445, 448-449 (1) (481 SE2d 238) (1997) (citations omitted). And the charge must be clear — i.e., it must be worded in such a way that it does not confuse or mislead the jury. Watkins, 265 Ga. App. at 54 (1). See also Garmon v. State, 269 Ga. App. 795, 799 (2) (605 SE2d 606) (2004).

In this case, the additional language incorporated into the trial court’s charge on knowledge is a correct statement of the law that has been approved by this Court on a number of occasions. See Rinks v. State, 313 Ga. App. 37, 38 (718 SE2d 359) (2011); Carter, 224 Ga. App. at 447 (1); McWhorter v. State, 198 Ga. App. 493, 493 (1) (402 SE2d 60) (1991). In Carter, we expressly approved a jury charge which had employed this language, explaining that the charge provided the jury with “an axiomatic principle of law in the area of aiding and abetting.” 224 Ga. App. at 448 (1). Similarly, both the Supreme Court of Georgia and this Court have approved the additional language incorporated into the trial court’s charge on mere presence. See White v. State, 278 Ga. 499, 500 (1) (604 SE2d 159) (2004) (citation and punctuation omitted); McKenzie v. State, 283 Ga. App. 555, 558 (642 SE2d 187) (2007) (citation and punctuation omitted). Accordingly, that charge also represented an accurate statement of the law. And we find that the additional language the trial court incorporated into these charges was warranted.

As noted above, Potts’s theory of defense was that he was merely present at the scene of the crime and that he had no knowledge Coleman was driving him to Elizabeth Village or that Coleman planned to commit a robbery on the night in question. In response to this defense, the State presented evidence showing that even if Potts did not commit directly the armed robbery, aggravated assaults, and acts of cruelty to children at issue, he was at least a party to those crimes. Specifically, the State presented evidence showing that, at the very least, Potts aided and abetted the commission of these crimes. See OCGA § 16-2-20 (b) (3) (defining a party to a crime as one who aids and abets the commission of the crime). Thus, in light of the evidence presented by the State, the trial court correctly charged the jury on aiding and abetting as part of its charge on knowledge.

The State’s evidence also disputed Potts’s claim that he was merely present at the scene of the crime and had no prior knowledge the robbery was going to occur. The evidence showed that Potts went with Coleman on the night in question for the purpose of committing a robbery; that Potts spoke with Oliphant (in the blue car) and they arranged to meet at Elizabeth Village; that Potts then directed Coleman to Elizabeth Village; that Potts fled the scene with Coleman and the others; and that Potts later helped to dispose of one or more guns used in the crimes. This evidence warranted the additional law incorporated into the pattern charge on mere presence, that “presence, companionship and conduct before and after the offense are circumstances for which one’s participation in the criminal intent may be inferred.” Thus, given Potts’s theory of defense and the evidence presented by the State, the jury charges at issue were appropriate.

Potts further contends that the “expanded charges placed undue emphasis on the ‘parties to a crime’ charge and likely” confused the jury. As evidence of the jury’s “likely” confusion, Potts points to the jury’s request to be recharged on party to a crime, aiding and abetting, felony murder, and malice murder. Notably, however, following this recharge the jury acquitted Potts of the two most serious charges he was facing: malice murder and felony murder. It also acquitted Potts of the aggravated assault charge resulting from the shooting of Pedro. More importantly, Potts fails to offer any legal authority to support the proposition that a request to recharge, standing alone, evidences confusion on the part of the jury. And, as noted above, the mere fact that the language of the charge deviated from that found in the pattern charge, without more, is insufficient to show that the charge was likely to confuse the jury. See Watkins, 265 Ga. App. at 54 (1). Given this fact, and given that the charges represented a clear and accurate statement of the applicable law and were tailored to the evidence presented, we find nothing in the charge as a whole that could have resulted in jury confusion. See Marriott v. State, 320 Ga. App. 58, 64 (2) (b) (739 SE2d 68) (2013) (“[t]o determine whether a jury charge is likely to have misled or confused the jury about the elements of a particular crime, we must consider the charge as a whole, reading all of its parts in conjunction with each other”) (citations omitted).

Finally, Potts contends that the charges on knowledge and mere presence conflicted with the trial court’s instruction on mere association. With respect to mere association, the trial court instructed the jury:

Likewise, a jury is not authorized to find a person who was merely associated with other persons involved in the commission of a crime guilty of consent in or concurrence in the commission of the crime unless the evidence shows beyond a reasonable doubt that such person helped in the actual perpetration of the crime or participated in the criminal endeavor.

Potts contends this charge conflicts with the additional language the trial court incorporated into the pattern charges on knowledge and mere presence because the mere association charge “requires the jury to find an ‘actual perpetration of the crime,’ or proof that [Potts] ‘participated in the criminal endeavor.’ ” Potts, however, offers no explanation as to how or why this part of the mere association charge conflicts with the additional language incorporated into the charges on knowledge and mere presence. And reading the charges together, we find no conflict between the language requiring proof of “actual perpetration of the crime” or participation “in the criminal endeavor” (the mere association charge) with the language requiring proof of “the commission of the offense” (the knowledge charge). Nor do we find any conflict between the above-referenced language from the mere association charge and the additional language incorporated into the charge on mere presence, which refers to proof of “presence, companionship and conduct before and after the crime.” (Emphasis supplied).

In light of the foregoing, and considering the jury charge as a whole, we find no error in the trial court’s jury instructions. The charge fully and adequately informed the jurors of the correct legal principles concerning parties to a crime, knowledge, mere presence, and mere association.

2. Potts and his companions were indicted on four separate counts as to their actions toward Pedro Espinoza: Count 4 charged armed robbery; Count 5 charged the commission of aggravated assault by placing a handgun in Pedro’s mouth; Count 6 charged the commission of aggravated assault by shooting Pedro with a handgun; and Count 11 charged the commission of aggravated assault with intent to rob by pointing a handgun at Pedro and demanding money. The jury acquitted Potts on Count 6, but found him guilty of the three remaining counts. The trial court then convicted and sentenced Potts on Counts 4, 5, and 11. On appeal, Potts asserts that the trial court erred in failing to merge the two aggravated assault counts (Counts 5 and 11) with the count of armed robbery (Count 4). We agree.

As the State concedes in its brief, the Supreme Court of Georgia has already decided this issue in Potts’s favor. See Oliphant v. State, 295 Ga. 597, 602 (4) (b) (759 SE2d 821) (2014). In Oliphant, one of Potts’s co-indictees argued on appeal that the trial court had erred in failing to merge his convictions on the same Counts 5 and 11 of the indictment with his conviction on the same Count 4. The Supreme Court agreed, explaining:

Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. (Citation and punctuation omitted.) Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530) (2006). Under this test, the conviction on Count 11, aggravated assault with intent to rob, clearly should have merged into the armed robbery conviction. See Lucky v. State, [286 Ga. 478, 481-482 (689 SE2d 825) (2010)] (comparing elements of armed robbery with those of aggravated assault with intent to rob and concluding that the latter was a lesser included offense of the former). As to Count 5, the same result obtains, because the aggravated assault with a deadly weapon as alleged here (i.e., by putting a gun in Pedro’s mouth) does not require proof of any fact in addition to those necessary to prove the armed robbery. See Bradley v. State, 292 Ga. 607 (1) (c) (740 SE2d 100) (2013); Long v. State, 287 Ga. 886 (2) (700 SE2d 399) (2010).

Decided March 30, 2015.

David D. Marshall, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

Id.

Applying Oliphant to the instant case, Potts’s convictions and sentences on Counts 5 and 11 of the indictment are vacated and the case is remanded so that Potts maybe resentenced. Potts’s remaining convictions are affirmed, as is the trial court’s order denying Potts’s motion for a new trial.

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

Barnes, P. J., and Boggs, J., concur.

       OCGA § 16-5-21.

       OCGA § 16-5-70 (b).

       OCGA § 16-8-41.

       OCGA§ 16-11-106.

       OCGA § 16-11-132.

       The nine young men were also charged with theft hy receiving stolen property, but the State elected not to prosecute that count of the indictment.

       Prior to his trial, Coleman pled guilty to the charges of felony murder, armed robbery, multiple counts of aggravated assault, multiple counts of cruelty to children, and possession of a firearm by a convicted felon. He is currently serving a sentence of life plus ten years.

       Following a jury trial, Ackey was acquitted of all charges.

       Pedro testified that Paola was the first to come to the door and Jorge was the second, and that the shooting began immediately after Jorge closed the trailer door. Coleman testified that Jorge came to the door first and Paola came second, and that the shooting began immediately after Paola closed the trailer door.

       Laye was called to testify at trial. Although Laye had already been tried and convicted for the charged crimes and although the State offered him immunity from any further prosecution, Laye refused to testify.

       As to parties to a crime, the trial court charged the jury as follows:
      Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of the commission of the crime. A person is concerned in the commission of a crime only if he, one, directly commits the crime, or, two, intentionally causes some other person to commit the crime under circumstances that the other person is not guilty of any crime, either in fact or because of legal incapacity, or, three, intentionally aids or abets in the commission of the crime, or, four, intentionally advises, encourages, hires, counsels or procures another to commit the crime.


author: Miller, Judge.

text:
    A14A1616.
    GERGUIS et al. v. STATESBORO HMA MEDICAL GROUP, LLC.
    (772 SE2d 227)
   Miller, Judge.

After having sold their private practice to Statesboro HMA Medical Group (“HMA”), Drs. John and Angela Gerguis (collectively “the Doctors”) left their employment with HMA. Thereafter, the Doctors sought an emergency injunction ordering HMA to provide them, and their new medical practice, with copies of all of the electronic patient medical records that they had previously sold to HMA. Following a hearing, the trial court issued an interlocutory injunction denying the Doctors’ request for medical records for patients who had not specifically authorized the disclosure of their records, but ordering HMA to provide the Doctors with paper and electronic copies of all records for patients who had provided such authorizations. The Doctors appeal, contending that the trial court erred: (1) in failing to allow the Doctors copies of all patient records pursuant to their contract with HMA; (2) in interpreting the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) to prohibit the Doctors from obtaining copies of all patient records; and (3) in permitting HMA to provide the Doctors with paper, rather than electronic, copies of records. For the reasons that follow, we affirm.

An interlocutory injunction is a device used to maintain the status quo of the parties pending final adjudication of the case and should not be granted except in clear and urgent cases where there is a vital necessity to prevent a party from being damaged and left without a remedy.

(Citation and punctuation omitted.) Drawdy CPA Svcs. v. North GA CPA Svcs., 320 Ga. App. 759, 760-761 (740 SE2d 712) (2013). We will not disturb a trial court’s decision to grant or deny an interlocutory injunction absent a manifest abuse of discretion. See Owens v. Ink Wizard Tattoos, 272 Ga. 728 (533 SE2d 722) (2000).

The Doctors are primary care physicians practicing in Statesboro. Beginning in 2003, the Doctors and their staff used NextGen, an electronic medical records program, to create and maintain patient records. The Doctors sold their practice to HMAin 2011 and agreed to become HMA employees. As part of the sale, the Doctors transferred to HMA the electronic patient records that they and their staff had created. The Doctors continued to use NextGen to create and maintain medical records during their employment with HMA. The Doctors’ NextGen system contained medical records for approximately 5,000 patients.

The employment agreements between the Doctors and HMA specifically provided that HMA would be “the custodian and owner of all patient records”; the records would remain on HMA property at all times during and after the Doctors’ employment; and the Doctors would not remove the records from their office or the hospital without HMA’s prior approval. The Doctors and HMA also entered into a Medical Records Custody Agreement (the “Agreement”), which provided:

HMA will own and retain custody of the Medical Records and agrees to maintain such Medical Records in accordance with applicable standards and laws of the State in which the Medical Records are located or other such laws as may be applicable, including, but not limited to [HIPAA] . . . . Notwithstanding the foregoing, [Dr. John Gerguis] shall have the right of access to all of the Medical Records, at reasonable times and upon reasonable notice to HMA, and a right to receive copies of same for clinical, legal, financial, and/or any other appropriate reasons as permitted by applicable law.

By June 2013, the Doctors were unhappy with HMA regarding staffing, compensation, and payment for office services and supplies. On August 1, 2013, the Doctors terminated their employment with HMA effective August 6. Prior to the effective date of the Doctors’ termination, HMA asked the Doctors whether they had in place a paper record system or parallel electronic medical record system to assure that they would have access to patient records once they were disconnected from HMA’s computer system. The parties also discussed the possibility of the Doctors buying back the medical practice assets from HMA, but the Doctors discontinued negotiations. Upon termination of the Doctors’ employment, HMA denied the Doctors access to NextGen.

The Doctors thereafter opened their new practice, South Georgia Family Medicine Associates, P.C. HMAnotified approximately 3,500 patients that the Doctors had left HMA and offered the patients three choices: they could remain at HMA and see a different doctor; they could transfer to the Doctors’ new practice and fill out an enclosed authorization form to release their medical records; or they could transfer to another doctor’s practice and fill out an enclosed authorization to release their medical records.

A small number of patients requested that their records be sent to another doctor. Many patients requested that HMA furnish their records to the Doctors. Through counsel, HMA informed the Doctors in September 2013 that it would provide access to patient medical records in medical emergencies, or where there was an immediate or critical need to do so. HMA also began providing paper copies of records for patients who had submitted authorizations. The paper patient records provided by HMA were voluminous, and different patients’ records were sometimes mixed together. The Doctors offered to pay to set up a NextGen portal so that they could access the patient records electronically and HMA agreed to this proposal, but the Doctors later determined that the plan was not feasible.

The Doctors and their new practice then filed suit for breach of contract and attorney fees. They sought injunctive relief to allow them access to, and electronic copies of, the records for not only the patients who had authorized HMA to furnish their records to the Doctors, but for all patients in the NextGen system. HMA counterclaimed for breach of contract and attorney fees. In support of their suit, the Doctors and their staff filed affidavits setting forth numerous instances in which records were not received from HMA or were not complete, resulting in the Doctors being unable to schedule procedures and otherwise interfering with patient care.

1. The Doctors contend that, pursuant to the Agreement, they are entitled to records for all patients in the NextGen system —- including those patients who have not submitted written authorizations — because the failure to provide such records could interfere with patient care. Specifically, the Doctors argue that, under the Agreement, they are permitted to maintain records for patients whom they have treated previously, even if the patient does not currently need medical treatment. We disagree.

In Georgia, the construction of a contract involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the contract language is clear and unambiguous. If it is, the trial court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.

(Citation omitted.) McKinley v. Coliseum Health Group, 308 Ga. App. 768, 770 (1) (708 SE2d 682) (2011); see also OCGA § 13-2-1.

Personal medical records are protected by Georgia’s constitutional right to privacy and cannot be disclosed without the patient’s consent unless disclosure is otherwise required by law. See Ussery v. Children’s Healthcare of Atlanta, 289 Ga. App. 255, 269 (4) (656 SE2d 882) (2008).

Here, a review of the employment agreements between the Doctors and HMA clearly shows that HMA purchased the medical records as part of their purchase of the Doctors’ practice in 2011. The Agreement also clearly provides that HMA would have custody and physical possession of the patient records; HMA would maintain and preserve the records in accordance with all laws, including HIPAA; and the Doctors were entitled to access the records and to copies of patient medical records “for clinical, legal, financial, and/or any other appropriate reasons as permitted by applicable law.” (Emphasis supplied.)

Under the Agreement, then, HMA owns the records. Accordingly, HMA may only disclose patient records in accordance with applicable law. Pursuant to HIPAA, HMA may only disclose medical records where the patient has provided a signed authorization. See 45 CFR § 164.508 (a) (1), (c). Likewise, Georgia law permits providers to furnish copies of patient medical records only upon a written request from the patient. See OCGA § 31-33-2 (a) (2). Consequently, even if a patient has previously seen the Doctors and may see the Doctors again at some time in the future, applicable law does not permit HMA, as the owner and custodian of the records, to disclose the records to the Doctors without a written patient authorization. Thus, the trial court did not abuse its discretion in denying the Doctors copies of records in the absence of patient authorizations.

2. The Doctors nonetheless argue, in several related enumerations of error, that HIPAA does not prohibit the disclosure by HMA of patient medical records to them. We disagree.

As set forth above, pursuant to HIPAA, a health care provider may not use or disclose protected health information without a valid patient authorization. See 45 CFR § 164.508 (a) (1), (c); see also 45 CFR § 160.103; Moreland v. Austin, 284 Ga. 730, 731 (670 SE2d 68) (2008) (HIPAA ensures the privacy of patients’ medical information). The Doctors argue that HIPAA does not prevent them from accessing the records because HIPAA defines “disclosure” as the release of records to one “outside the entity holding the information” (45 CFR § 160.103) and they are not an outside entity of HMA since, by virtue of the Agreement, HMA was merely holding the records for their benefit. However, nothing in the Agreement suggests that the Doctors would continue to have access to patient records after they left HMA, except in accordance with applicable law.

Under HIPAA, “treatment” is defined to include

the provision, coordination, or management of health care and related services by one or more health care providers, including the coordination or management of health care by a health care provider with a third party; consultation between health care providers relating to a patient; or the referral of a patient for health care from one health care provider to another.

Decided March 18, 2015

Reconsideration denied April 8, 2015

Chilivis, Cochran, Larkins & Bever, Anthony L. Cochran, Franklin, Taulbee, Rushing, Snipes & Marsh, Daniel B. Snipes, for appellants.

Thomerson Macchiaverna Smith & Freeman, Michael J. Thomerson, for appellee.

45 CFR § 164.501. The Doctors argue that “treatment” should be interpreted broadly to include maintaining former patients’ medical records and insist that HIPAA does not prohibit their access to patient records because they are ethically bound to keep patient records confidential. Pretermitting whether HIPAA should be interpreted as the Doctors suggest, the Agreement clearly provides that HMA, not the Doctors, will maintain the records at issue.

3. Finally, the Doctors contend that the trial court erred in not ordering HMA to provide them with electronic copies of patient records, and by permitting HMA to provide paper copies instead. This argument is without merit, as the trial court’s injunction provided that the Doctors were entitled to both paper and electronic copies of patient medical records, so long as the patients had authorized HMA to release their records. HMA should be providing electronic copies to the Doctors in accordance with the trial court’s order.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

       The record indicates that NextGen could set up such a portal, that it would provide access to all the relevant records, and that it would cost between $20,000 and $25,000.

       A valid authorization under HIPAA identifies the records to be disclosed, as well as to whom the disclosure is to be made, and is signed by the patient. 45 CFR § 164.508 (c) (1). “Disclosure” is broadly defined under HIPAA to include “the release, transfer, provision of access to, or divulging in any manner of information outside the entity holding the information.” 45 CFR § 160.103.


text:
    A13A1386.
    ROBINSON v. THE STATE.
    (772 SE2d 223)
   Branch, Judge.

In Robinson v. State, 324 Ga. App. XXVII (November 7, 2013) (unpublished), this Court held that the evidence was sufficient to sustain Carlos Robinson’s conviction for trafficking in cocaine and that Robinson had not received ineffective assistance of counsel. On April 22, 2014, the Supreme Court of Georgia granted Robinson’s petition for certiorari, vacated our judgment, and remanded the case to this Court for reconsideration in light of the Supreme Court’s decision in Scott v. State, 295 Ga. 39 (757 SE2d 106) (2014). In that decision, the Supreme Court held that the former version of Georgia’s cocaine trafficking statute, OCGA § 16-13-31 (a), “required proof that the defendant had knowledge of the weight of the cocaine” at issue. Id. at 42 (3) (footnote omitted). The Supreme Court also noted that the issue facing this Court on remand was “whether the evidence at trial was sufficient to prove beyond a reasonable doubt that [the defendant] knew that the cocaine he possessed weighed 28 grams or more.” Id. at 42 (3), n. 5. On remand, we conclude that this jury was authorized to infer from the evidence presented that Robinson knew that the cocaine he possessed weighed 28 grams or more. We therefore affirm Robinson’s conviction.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted).

We stated the relevant facts in our unpublished opinion as follows:

Construed in favor of the verdict, the evidence shows that on December 10, 2007, Robinson was driving on Highway 19/41 in Henry County with co-defendant Cedric Holland, who was seated in the passenger seat. As they drove past the Atlanta Motor Speedway, Locust Grove Police Officer Jason Sanders noticed that Robinson’s car was moving at an abnormally slow speed. Sanders also noticed that the tint of the car’s windows appeared darker than legally permitted and that the expiration sticker on the vehicle’s tag was obstructed from view. Based on these observations, Sanders initiated a traffic stop.
Sanders approached the stopped car and obtained Robinson’s identification. As Robinson handed Sanders his driver’s license, Sanders observed that Robinson’s hands were shaking and that his carotid artery was visibly pulsating. Sanders then directed Robinson to step out of the vehicle, and Robinson complied. While Robinson stood behind the vehicle, Sanders asked Robinson where he was coming from and where he was going. Robinson answered that he was leaving a friend’s house in Atlanta and that he and Holland were on their way to Robinson’s house in Griffin. At this point, Sanders left Robinson standing at the rear of the car and approached Holland, who was still seated in the vehicle. When Sanders asked Holland the same questions he previously asked Robinson, Holland responded that they were coming from work in Atlanta and that they were on their way to Holland’s father’s house in Griffin. Sanders then asked for and obtained Holland’s driver’s license and contacted dispatch to run a Georgia Crime Information Center (GCIC) check on both men’s licenses.
While waiting for dispatch to reply, Sanders noticed Robinson trying to walk toward the passenger side of the vehicle and asked him several times to remain standing at the rear of the vehicle. Sanders also saw that Holland was making furtive movements inside the vehicle, as if he were hiding something underneath the seat. Based upon these actions, Sanders asked Robinson for consent to search the vehicle. He inquired whether Robinson had any weapons, large sums of U. S. currency, or any illegal narcotics inside the car. Robinson denied the presence of any of these items and gave Sanders verbal consent to search the vehicle.
Sanders did not immediately proceed to search the car, however, because he was still waiting for a response from dispatch and for a backup unit to arrive. Instead, Sanders walked back to his patrol car to retrieve an item. As he did so, Sanders saw Holland jump from the passenger side to the driver’s side of the vehicle and speed away. Sanders quickly handcuffed Robinson, turned him over to the back-up unit that had just arrived, and got in his patrol car to pursue Holland, who was ultimately apprehended. During the chase, Sanders observed Holland throw a black package and then a clear bag out of the passenger side window. Holland then lost control of the car and slammed into a telephone pole. He fled the vehicle on foot before being caught and arrested. Sanders later searched the car and found several plastic bags and a set of digital scales in the passenger floor board. Although police did not locate the black package, the clear bag was recovered and was later determined to contain 249.21 grams of approximately 65% pure cocaine.
Robinson and Holland were both arrested on narcotics charges and transported to the police station with the assistance of another officer named Chad Rosborough, who had been called to the scene. Once they arrived at the police department, Rosborough read Robinson his Miranda rights. At that time, Rosborough asked Robinson about his education and determined that Robinson had completed the tenth grade. The officer further noted that Robinson did not appear to be under the influence of any medication or other substance and appeared to understand the questions fully. Though Robinson did not ask for a lawyer, he refused to sign the Miranda waiver form, at which point Rosborough stopped talking to Robinson.
Shortly afterward, while completing paperwork, Rosborough heard Robinson say that he “had f***ked up.” Sanders then came into contact again with Robinson and escorted him out of the Hampton police department to a patrol vehicle in order to transport him to the Henry County jail. While exiting the door of the station, Robinson shook his head and stated that he had “messed up.” Sanders stopped and looked at Robinson, who volunteered that he “knew he shouldn’t have went and picked up the drugs.” There was no evidence that Sanders did anything to elicit these statements.
Robinson and Holland went to trial on a charge of cocaine trafficking. After the State rested, Holland entered a plea of guilty. Holland then took the stand as a witness for Robinson, testifying that on the day in question, he called Robinson, who was a lifelong friend, and asked him to come to Atlanta and drive him to Griffin. Holland stated that when Robinson picked him up, Holland already had the cocaine, scales, and bags with him and that he did not tell Robinson about the drugs. On cross-examination, Holland admitted that he and Robinson gave inconsistent answers when asked by police about their destination. Holland also testified that even though he knew Robinson was from Griffin, Robinson “happened” to be in Atlanta at precisely the time Holland needed him to be.

Robinson v. State, supra. The jury found Robinson guilty of trafficking in cocaine, and he was convicted. Robinson timely filed a motion for new trial, which was denied. Id.

Our Supreme Court has instructed us to reconsider Robinson’s contention that the evidence was insufficient to support his conviction in light of Scott, which held that under former OCGA § 16-13-31 (a), the State must prove both a defendant’s “knowledge of the nature and amount of [the cocaine at issue] and [knowledge] of being in possession of it.” Id. at 40 (1). Specifically, Robinson argues that proof of Robinson’s mere spatial proximity to the cocaine Holland threw out of the car after he drove it away from the traffic stop was insufficient to show that Robinson knowingly possessed at least 28 grams of the cocaine. We disagree.

Former OCGA § 16-13-31 (a) (l), which was in effect during Robinson’s October 2008 trial, provided in relevant part:

Any person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine ... in violation of this article commits the felony offense of trafficking in cocaine [.]

(Emphasis supplied.) According to our Supreme Court, “[t]he plain language of . . . former OCGA § 16-13-31 (a) (1) . . . dictates the conclusion that knowledge of the quantity of the drug was an element of the crime.” Scott, 295 Ga. at 40 (1). The statute “contains express scienter requirements, that is, knowledge of the nature and amount of the drug and of being in possession of it.” Id. The question before us is thus whether the State proved that Robinson had knowing possession of at least 28 grams of cocaine, thereby satisfying the intent requirement of the former statute. Id. at 42 (3).

As to possession of the drug, undisputed evidence that Robinson was driving the car in which the cocaine was transported (and from which it was thrown) gave rise to a rebuttable presumption that he had possession and control over the drug. Ramirez v. State, 290 Ga. App. 3, 4 (1) (658 SE2d 790) (2008). It is true that this presumption “may be rebutted if the driver presents evidence that other persons had equal access to the vehicle and contraband.” Id. (citation omitted). But in cases where, as here, the driver and a passenger are both charged with joint constructive possession of contraband transported in a vehicle, “the state may rely on the presumption to show that the driver exercised possession and control over the contraband, but the driver is not entitled to rely on the equal access rule to rebut the presumption.” Id. at 5 (1) (citation, punctuation and footnote omitted). Robinson’s citation of the equal access rule is thus unavailing to rebut the presumption that as the driver of the car, he was in possession of and exerted control over that drug.

As to whether Robinson knew that the cocaine at issue weighed 28 grams or more, this Court has often observed that “ ‘[cjriminal intent rarely can be proved by direct evidence, but its existence may be inferred by the trier of fact upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.’ ” McKibbons v. State, 226 Ga. App. 452, 453 (1) (486 SE2d 679) (1997) (emphasis supplied), quoting Peterson v. State, 204 Ga. App. 532, 533 (1) (419 SE2d 757) (1992). In Freeman v. State, 329 Ga. App. 429 (765 SE2d 631) (2014), for example, the first case decided and published by this Court in the wake of Scott, cocaine in an amount “two times the trafficking threshold weight of 28 grams” was found “hidden in a vent in a bedroom that [defendant] was apparently occupying.” Id. at 432 (1) (emphasis in original). We thus concluded that this evidence, along with that of five similar transactions, was sufficient to show that the defendant “had knowledge of the weight of the cocaine found” in the search of the home. Id. at 433 (1).

Although the record before us shows that similar transactions were introduced only at Robinson’s sentencing, the circumstances of the possession for which Robinson was prosecuted include Robinson’s status as the driver of the car; the presence of a very large quantity of narcotics in the passenger compartment of the car; his display of nervousness during the stop; his and Holland’s inconsistent statements as to where they were going; the scales found on the passenger floorboard of the car; Robinson’s spontaneous admissions that he “f***ked up,” “messed up,” and “knew” that he “shouldn’t have went and picked up the drugs”; and the cocaine’s weight of approximately 250 grams, or nearly ten times the minimum amount required to sustain a conviction for trafficking in the drug. The record also shows that the jury was read the indictment, which charged Robinson with knowing possession of “more than 200 grams” of the drug, and was charged accordingly that “any person who is knowingly in possession of 200 grams or more” of cocaine “with a purity of 10% or more” commits the offense of cocaine trafficking.

Decided February 20, 2015

Reconsideration denied April 9, 2015.

S. Cindy Wang, for appellant.

James L. Wright III, District Attorney, Jordan K. Van Matre, Sandra G. Rivers, Assistant District Attorneys, for appellee.

This indictment squarely presented the jury with the question whether Robinson was in knowing possession of an amount of cocaine far in excess of the statutory amount. The circumstances surrounding his arrest also authorized the jury to infer not only that Robinson had knowing possession of the cocaine transported in the car he was driving, but also that he knew that cocaine to weigh 28 grams or more. As such, the evidence was sufficient to sustain Robinson’s conviction for trafficking in cocaine under the former version of OCGA § 16-13-31 (a) (1). See Freeman, 329 Ga. App. at 433 (1) (evidence was sufficient to prove defendant’s knowing possession of cocaine under the former version of OCGA § 16-13-31 (a) (1)).

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur in judgment only.

      1 The indictment charged both men with unlawful and knowing possession of “more than 200 grams of a mixture containing at least 10% cocaine.”

       As our Supreme Court noted in Scott, the statute was amended in 2013 to delete the adverb “knowingly” throughout subsection (a). Scott, 295 Ga. at 41 (2).

       Robinson has not asserted any error concerning the jury charge.


author: Dillard, Judge.

text:
    A14A1562.
    SOUTHERN STATES-BARTOW COUNTY, INC. et al. v. RIVERWOOD FARM PROPERTY OWNERS ASSOCIATION, INC. et al.
    (769 SE2d 823)
   Dillard, Judge.

In this civil action, Riverwood Farm Property Owners Association, Inc., a group of private property owners in unincorporated Bartow County (“plaintiffs”), sued Southern States-Bartow County, Inc., several companies and individuals with ownership interest in Southern States (collectively “Southern States”), and Bartow County (“County”), alleging that a landfill Southern States proposed to develop on property it owned within the County violated zoning ordinances and should be enjoined. Following a grant of partial summary judgment in favor of the plaintiffs, Southern States appeals, arguing that the trial court erred in (1) finding that a 1993 county zoning ordinance applied to the property; (2) finding that Southern States failed to retain its right to develop a landfill; (3) failing to find that the 1993 zoning ordinance violated the Georgia Constitution; (4) finding, alternatively, that Southern States waived any rights it had when it sought a new landfill permit in 2004; and (5) finding that it had subject-matter jurisdiction, despite the fact that the plaintiffs were also contesting the landfill permit in an administrative proceeding. For the reasons set forth infra, we vacate the judgment and remand for further proceedings consistent with this opinion.

Viewed in the light most favorable to Southern States (i.e., the nonmoving party), the record shows that in 1989, Southern States filed an application with the Georgia Environmental Protection Division (“EPD”) to develop and operate a solid-waste landfill on property that it owned on Hodges Mine Road in Bartow County. In connection with that application, Southern States was required to obtain a certificate of zoning compliance from the County, demonstrating that the landfill complied with local zoning and land-use ordinances. But at that time, the County’s applicable zoning ordinances did not allow for a landfill on the subject property. And consequently, the County refused Southern States’s request for a certificate of zoning compliance. Shortly thereafter, litigation ensued.

In 1991, in a separate but somewhat related action, the Supreme Court of Georgia declared the Bartow County zoning ordinance to be invalid on the ground that the County failed to comply with the Zoning Procedures Law. And as a result, the Supreme Court held that there was “no valid restriction on the property, and the [property owner] has the right under the law to use the property as it so desires.” Then, on September 22,1994, the Superior Court of Bartow County — in light of the Supreme Court’s decision — issued an order, in which it ruled that because no valid zoning ordinance controlled in 1989 when Southern States submitted its landfill-permit application, Southern States had “a vested right to obtain a certificate of the right to use their real property without county land use restrictions . . . despite the enactment of a subsequent zoning ordinance.” Accordingly, the superior court ordered the County to issue the necessary certificate, and it enjoined the County from prohibiting Southern States’s operation of a landfill on the subject property.

Shortly thereafter, Southern States requested and received a certificate of zoning compliance from the County. Nevertheless, while it continued internal discussions and evaluations regarding development of the landfill for nearly ten years, Southern States did little, if anything, toward moving the project forward and submitted no additional information, including the certificate of zoning compliance, to the EPD.

Eventually, in 2004, Southern States submitted what was characterized as a new permit application for a “Construction and Demolition” landfill. And although under the zoning ordinances in place at that time a landfill on the property was not a permitted use, the County — assuming that it was still constrained by the 1994 Superior Court order — issued a certificate of zoning compliance in support of Southern States’s application. Still, the process dragged on for nearly another decade. And in January 2012, Southern States submitted to the EPD yet another certificate of zoning compliance issued by the County.

On May 23, 2013, while Southern States’s application was still pending with the EPD, plaintiffs filed a complaint for declaratory judgment and injunctive relief against Southern States and the County, alleging that the proposed landfill violated County zoning ordinances. Later, plaintiffs amended their complaint to include claims for anticipatory nuisance and violations of Georgia’s Racketeer Influenced and Corrupt Organizations (“RICO”) Act. Southern States and the County filed answers, and in May 2013, Southern States filed a motion to dismiss, which the trial court denied.

On November 12, 2013, plaintiffs filed a motion for partial summary judgment, arguing that, based on the 1993 zoning ordinance in force at the time the superior court issued the 1994 order (ruling that Southern States had a vested right to operate a landfill), Southern States’s vested right lapsed because it failed to commence using the property as a landfill within one year. The plaintiffs also contended that, notwithstanding the 1994 order, because Southern States sought a new EPD permit for the landfill in 2004, its actions were governed by the zoning ordinances in place at that time, which prohibited such use.

Shortly thereafter, on November 14,2013, the EPD finally issued a solid-waste handling permit to Southern States, allowing it to develop and operate a landfill on its Hodges Mine Road property. Consequently, Southern States reasserted its motion to dismiss plaintiffs’ nuisance claim, arguing that plaintiffs were required to challenge the grant of the EPD permit via an administrative proceeding before seeking relief in the superior court. In that same motion, Southern States also sought dismissal of the plaintiffs’ RICO and punitive-damages claims.

On December 30, 2013, following a hearing on all the pending motions, the trial court granted the plaintiffs’ motion for partial summary judgment, finding that whatever vested right Southern States may have had (under the 1993 zoning ordinance) lapsed when it failed to commence using the property as a landfill within one year. The trial court also ruled, alternatively, that Southern States applied for a new permit with the EPD in 2004, and therefore, the County should have applied the “then-current” zoning ordinance to its determination of whether to issue another certificate of zoning compliance. Additionally, the trial court granted Southern States’s motion to dismiss the plaintiffs’ RICO and punitive-damages claims, but denied the motion to dismiss the anticipatory-nuisance claim.

Southern States then filed an appeal in the Supreme Court of Georgia, challenging the trial court’s grant of partial summary judgment in favor of the plaintiffs and the court’s denial of its motion to dismiss plaintiffs’ anticipatory-nuisance claim. However, the Supreme Court held that the issues on appeal failed to invoke its jurisdiction over equity cases or constitutional questions, and thus, transferred the matter to this Court. This appeal follows.

At the outset, we note that it is well established that summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” If summary judgment is granted by a trial court, it enjoys no presumption of correctness on appeal, “and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met.” And in our de novo review of a trial court’s grant of a motion for summary judgment, we are charged with “viewing the evidence, and all reasonable conclusions and inferences drawn from the evidence in the light most favorable to the nonmovant.” Furthermore, we similarly apply a de novo standard of review to the trial court’s denial of a motion to dismiss. With these guiding principles in mind, we turn now to Southern States’s specific claims of error.

1. Southern States contends that the trial court erred in denying its motion to dismiss plaintiffs’ anticipatory-nuisance claim. Specifically, it argues that the court erred in finding that it had subject-matter jurisdiction over the case despite the fact that the plaintiffs were also contesting the landfill permit in an EPD administrative proceeding. Because subject-matter jurisdiction is a threshold issue, we will address this claim first and, in doing so, hold that the trial court did not err.

As noted supra, after plaintiffs filed this lawsuit — in fact only shortly before the trial court granted the plaintiffs partial summary judgment — the EPD granted Southern States’s permit application. Immediately thereafter, plaintiffs challenged that administrative grant under OCGA § 12-2-2 (c) (2) (A), which provides:

Any person who is aggrieved or adversely affected by any order or action of the director shall, upon petition to the director within 30 days after the issuance of such order or the taking of such action, have a right to a hearing before an administrative law judge of the Office of State Administrative Hearings assigned under Code Section 50-13-40 and acting in place of the Board of Natural Resources. . . .

In light of this statute, Southern States argues that plaintiffs should have been required to exhaust their administrative remedies before seeking resolution of its anticipatory-nuisance claim in the superior court. We disagree.

Southern States is correct that decisions of the Supreme Court of Georgia have held that “where a statute provides a party with a means of review by an administrative agency, such procedure is generally an adequate remedy at law so as to preclude the grant of equitable relief.” But here, a proceeding under OCGA § 12-2-2 (c) (2) (A) will not resolve the plaintiffs’ primary claim that Southern States’s operation of a landfill on its property violates County zoning ordinances. Indeed, if the plaintiffs’ contention that the County should be prohibited whatsoever from issuing Southern States a certificate of zoning compliance ultimately prevails, the EPD permitting process is essentially a dead letter. Consequently, the administrative-permitting process and its appeal provisions do not “provide the [plaintiffs] with an adequate remedy and the superior court did have jurisdiction to issue an injunction.” Accordingly, the court did not err in denying Southern States’s motion to dismiss.

2. Southern States also contends that the trial court erred in finding that the 1993 Bartow County Zoning Ordinance Section 6.1.4 was applicable to its vested right to operate a landfill on its property as recognized by the 1994 Superior Court order. Again, we disagree.

Section 6.1.4 of the Bartow County Zoning Ordinance, which became effective in September of 1993, provided:

Any intended non-conforming use for which a vested right was acquired prior to the adoption of this ordinance or the adoption of an amendment thereto shall be prohibited unless such is actually commenced within one year of the adoption of this ordinance or the adoption of an amendment thereto regardless of the intent or expectation to commence or abandon such non-conforming use.

Here, the Bartow County Superior Court recognized Southern States’s vested right to develop a landfill in its 1994 order, but the right was actually acquired in 1989 when Southern States submitted its application for a landfill permit to the EPD. And given that our Supreme Court held in 1991 that the County’s zoning ordinance in place in 1989 was void, the first applicable zoning ordinance was the ordinance effective in 1993. Accordingly, the trial court did not err in finding that § 6.1.4 of the County’s 1993 zoning ordinance was applicable in evaluating Southern States’s vested right.

3. Southern States next maintains that the trial court erred in finding that it did not retain its vested right to operate a landfill because it failed to comply with § 6.1.4 of the County’s 1993 zoning ordinance. Once again, we disagree.

As an initial matter, we note that the principles guiding our consideration of the meaning of statutes are settled ones, and we “apply those same principles when we consider the meaning of an ordinance.” Consequently, we look first to the text of the ordinance, and if the text is clear and unambiguous, “we look no further, attributing to the ordinance its plain meaning.” And as we look to the words of the ordinance, we attribute to those words their “ordinary, logical, and common meanings, unless a clear indication of some other meaning appears.” Furthermore, we read the ordinance as a whole “according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending its operation.”

As noted supra, § 6.1.4 of the County’s zoning ordinance provides, in part, that “[a]ny intended non-conforming use for which a vested right was acquired prior to the adoption of this ordinance or the adoption of an amendment thereto shall be prohibited unless such is actually commenced within one year of the adoption of this ordinance . . . .” And here, the non-conforming use for which Southern States obtained a vested right, as noted in the 1994 Superior Court order, was to operate a landfill on its property. The question, then, becomes whether Southern States “commenced” the “non-conforming use” of the property within one year so that its vested right did not lapse.

Southern States argues that it complied with § 6.1.4 of the 1993 zoning ordinance by obtaining a zoning-compliance letter from the County within a few months after the 1994 Superior Court order. But we disagree that the zoning ordinance can be read so expansively, as the plain meaning of “commencing” the non-conforming “use” indicates the start of operating an actual landfill on the property and, therefore, at the very least, involves something more than submitting paperwork. This, Southern States did not do. Indeed, it is undisputed that Southern States did not actually begin operating a landfill on the property within one year of the 1994 order or even within ten years. As such, the trial court did not err in finding that Southern States failed to comply with the 1993 zoning ordinance and that its vested right to operate a landfill, therefore, lapsed.

4. Southern States further contends that, assuming it is applicable, the trial court erred in failing to find that the 1993 zoning ordinance violates the Georgia Constitution. Specifically, Southern States argues that Article I, Section I, Paragraph X of the Georgia Constitution, “forbids passage of retroactive laws which injuriously affect the vested rights of citizens.”

The record, in fact, shows that Southern States raised a constitutional challenge to the 1993 Bartow County zoning ordinance before the trial court in its response to the plaintiffs’ motion for partial summary judgment. However, in granting the plaintiffs’ motion, the trial court did not address Southern States’s constitutional challenge, much less issue a ruling on its argument. Indeed, in its order transferring this case to the Court of Appeals, the Supreme Court of Georgia explicitly held that the trial court did not rule on Southern States’s argument that the 1993 zoning ordinance is unconstitutional as applied to it. We are, of course, bound by that order. Thus, because a decision on the constitutional issue has the potential to affect the plaintiffs’ lawsuit against Southern States, we must vacate the trial court’s judgment and remand the case for consideration of the constitutional challenge or other proceedings consistent with this opinion.

5. Finally, Southern States contends that the trial court erred in finding, alternatively, that Southern States waived any vested rights it may have had when it sought a new landfill permit from the EPD in 2004. And because affirming the trial court on this claim of error would potentially obviate any further proceedings in this matter, we must address it now. In doing so, we hold that genuine issues of material fact exist as to whether Southern States’s application submitted to the EPD in 2004 constituted a new permit such that any vested rights resulting from the 1989 application were waived.

As noted in the affidavit of Southern States’s consulting environmental engineer, by 2004, the EPD required permit applicants to submit additional information that was not previously required. But as the engineer further noted, on the relevant EPD form, there was no place to indicate that the applicant was modifying a pending application. Thus, Southern States checked the box on the form indicating “new permit.” However, as the engineer explained, Southern States’s goal in this regard was merely to reduce the scope of its pending application. It was not seeking to restart the application process, and, in fact, according to the engineer, the 2004 application was made part of the EPD’s original 1989 application file.

In response, the plaintiffs argue that “self-serving and conclusory affidavits are insufficient to create an issue for trial.” But in light of its level of detail, Southern States’s engineer’s affidavit can hardly be characterized as merely conclusory. And despite the apparent self-serving nature of this affidavit, “whether the testimony is credible is not an issue that the trial court can determine on summary judgment.” Indeed, given that all doubts are “to be resolved against [the plaintiffs]” as movants, the affidavit presents a genuine issue of material fact as to whether Southern States’s 2004 application constituted a new permit such that any vested rights resulting from the 1989 application were waived. Accordingly, the trial court erred in ruling otherwise.

For all of the foregoing reasons, we vacate the trial court’s judgment and remand the case for further proceedings consistent with this opinion. In light of our holdings in Divisions 4 and 5, supra, we recognize that such further proceedings entail two possibilities. A ruling in favor of the plaintiffs on the constitutionality of the 1993 zoning ordinance resolves the case at the trial-court level and renders the characterization of the 2004 EPD permit application moot, while a ruling in favor of Southern States, i.e., that the ordinance is unconstitutional, would then necessitate resolution of the 2004 permit-application issue. Similarly, should the plaintiffs prevail in a trial on the merits of whether or not the 2004 EPD permit application was a new application, the constitutionality of the 1993 zoning ordinance would be rendered moot, whereas the question of constitutionality would still require resolution should Southern States prevail. Nevertheless, we leave a determination of how to best proceed to the trial court and the parties.

Decided March 25, 2015

Reconsideration denied April 9, 2015.

Schreeder, Wheeler & Flint, David H. Flint, Mark W. Forsling, Jones Cork & Miller, Robert C. Norman, Jr., for appellants.

Genevieve L. Frazier, Kazmarek Mowrey Cloud Laseter, Edward A. Kazmarek, Kimberley Hale, for appellees.

Judgment vacated and case remanded.

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

        See, e.g., McCaskill v. Carillo, 263 Ga. App. 890, 890 (589 SE2d 582) (2003).

        See Ga. Comp. R. & Regs. r. 391-3-4-.05 (1) (a) (“The following criteria must be met for a site proposed as a solid waste handling facility: Zoning. The site must conform to all local zoning/land use ordinances. . ..”).

        See Tilley Props., Inc. v. Bartow County, 261 Ga. 153, 154-55 (1) (401 SE2d 527) (1991); see also OCGA § 36-66-1 et seq.

        Tilley Props., Inc., 261 Ga. at 155 (2).

        See OCGA § 16-14-1 et seq.

        See OCGA § 12-2-2 (c) (2) (A) (“Any person who is aggrieved or adversely affected by any order or action of the director shall, upon petition to the director within 30 days after the issuance of such order or the taking of such action, have a right to a hearing before an administrative law judge of the Office of State Administrative Hearings assigned under Code Section 50-13-40 and acting in place of the Board of Natural Resources.. ..”).

        See Southern States-Bartow County, Inc. v. Riverwood Farm Prop. Owners Ass'n, Case No. S14D0715 (decided February 20, 2014).

       OCGA § 9-11-56 (c).

        Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).

        Benefield v. Tominich, 308 Ga. App. 605, 607 (1) (708 SE2d 563) (2011) (punctuation omitted).

        See Miller County Bd. of Educ. v. McIntosh, 326 Ga. App. 408, 411 (1) (756 SE2d 641) (2014) (applying a de novo standard of review to the trial court’s denial of a motion to dismiss plaintiff’s complaint for failure to exhaust administrative remedies).

        See Live Oak Consulting, Inc. v. Dep’t of Cmty. Health, 281 Ga. App. 791, 794-95 (1) (637 SE2d 455) (2006) (noting that, as a threshold matter, a trial court should determine its jurisdiction); accord Dep’t of Transp. v. Dupree, 256 Ga. App. 668, 671-672 (570 SE2d 1) (2002).

        George v. Dep’t of Natural Resources, 250 Ga. 491, 492 (299 SE2d 556) (1983) (punctuation omitted); accord Flint River Mills v. Henry, 234 Ga. 385, 387 (216 SE2d 895) (1975).

        See supra note 2, Ga. Comp. R. & Regs. r. 391-3-4-.05 (1) (a).

        Emmons v. City of Arcade, 270 Ga. 196, 198 (2) (507 SE2d 464) (1998); accord Galaxy Carpet Mills, Inc. v. Massengill, 255 Ga. 360, 361 (2) (338 SE2d 428) (1986).

        See Emmons, 270 Ga. at 198 (2) (holding that because it was city’s flawed decision-making process that aggrieved citizens, and not issuance of landfill permit, administrative-permitting process and its appeal provisions did not provide them with adequate remedy at law, so that superior court had jurisdiction to issue injunction).

       Zoning Ordinance Bartow County § 6.1.4 (effective September 1993).

        See Fulton County v. Action Outdoor Advertising, JV, LLC, 289 Ga. 347, 350 (1) (711 SE2d 682) (2011) (holding that when an applicant submits an application in accordance with applicable ordinances, the applicant has a vested right and is entitled to the permit); WMM Props., Inc. v. Cobb County, 255 Ga. 436, 438 (1) (b) (339 SE2d 252) (1986) (same).

        See Tilley Props., Inc., 261 Ga. at 155 (2).

        Daniel Corp. v. Reed, 291 Ga. 596, 597 (732 SE2d 61) (2012); accord Risser v. City of Thomasville, 248 Ga. 866, 866 (286 SE2d 727) (1982).

        Daniel Corp., 291 Ga. at597; accord Opensided MRI of Atlanta v. Chandler, 287 Ga. 406, 407 (696 SE2d 640) (2010).

        Daniel Corp., 291 Ga. at 597 (punctuation omitted); accord Judicial Council of Ga. v. Brown & Gallo, 288 Ga. 294, 297 (702 SE2d 894) (2010).

        Daniel Corp., 291 Ga. at 597 (punctuation omitted); accord Jones v. Douglas County, 262 Ga. 317, 321 (1) (b) (418 SE2d 19) (1992).

        See Zoning Ordinance Bartow County § 6.1.4 (effective September 1993).

        See The Compact Oxford English Dictionary 294 (2d ed. 1991) (defining “commence” as, inter alia, “[t]o make a start or beginning; to come into operation”); id. at 2204 (defining “use” as, inter alia, “[t]he act of employing a thing for any (esp. a profitable) purpose”).

        See Daniel Corp., 291 Ga. at 598-99 (holding that plain meaning of ordinance requiring alcohol licensee to “open for business” within nine months of issuance of license, with failure to do so resulting in automatic forfeiture of license, did not reflect any requirement as to the regularity or continuity of business).

        See Ga. Const., Art. I, Sec. I, Par. X (“No bill of attainder, ex post facto law, retroactive law, or laws impairing the obligation of contract or making irrevocable grant of special privileges or immunities shall he passed.”).

        Action Outdoor Advertising, JV, LLC, 289 Ga. at 351 (1) (punctuation omitted).

        See supra note 7.

        See Buchan v. Hobby, 288 Ga. App. 478, 479-80 (654 SE2d 444) (2007) (noting that the Court of Appeals was bound by the Supreme Court of Georgia’s transfer order, which held that the trial court did not rule on the constitutionality of a statute despite plaintiff’s challenge to statute on such grounds).

        See City of Decatur v. DeKalb County, 284 Ga. 434, 438 (2) (668 SE2d 247) (2008) (holding that a constitutional challenge will not be considered on appeal when it has not been ruled upon in the court below); Buchan, 288 Ga. App. at 480 (remanding case for consideration of constitutional challenge).

        J. Kinson Cook of Ga., Inc. v. Heery/Mitchell, 284 Ga. App. 552, 559 (d) (644 SE2d 440) (2007).

        Barrett v. Britt, 319 Ga. App. 118, 124 (736 SE2d 148) (2012) (punctuation omitted).

        Id. (punctuation omitted).

        See id. (holding that parties’ conflicting affidavits presented an issue of fact such that trial court erred in granting defendants’ motion for summary judgment).


text:
    A14A2006.
    BARTON v. THE STATE.
    (769 SE2d 96)
   Branch, Judge.

On November 1, 2013, Paul Barton pled guilty in Floyd County Superior Court to one count of sexual battery and one count of sexual battery against a child under the age of sixteen. That same day, the trial court entered the judgment of conviction and sentenced Barton to serve five years on each count, with the sentences to run consecutively. He now appeals pro se from the denial of his motion to withdraw his guilty plea, arguing that the trial court erred in finding that it lacked jurisdiction over that motion. We find no error and affirm.

Under Georgia law, any motion to withdraw a guilty plea must be made during the same term of court in which the defendant was sentenced. Matthews v. State, 295 Ga. App. 752, 754 (1) (673 SE2d 113) (2009). After that time, the trial court loses jurisdiction over the plea and therefore cannot order its withdrawal. Spencer v. State, 309 Ga. App. 630, 631 (2) (710 SE2d 837) (2011). Here, Barton entered his guilty plea and was sentenced on Friday, November 1, 2013, which was the last day of the September 2013 term of court; the trial court therefore lost jurisdiction over Barton’s guilty plea on the following Monday (November 4,2013), the date on which the November term of court started. See OCGA § 15-6-3 (33) (the terms of court for Floyd County shall begin on the “[s]econd Monday in January, March, July, and September and first Monday in May and November”). Barton, however, did not file his motion to withdraw his guilty plea until May 9,2014, approximately six months after his sentence was entered and well after the September 2013 term of court had ended.

On appeal, Barton relies on the legal rule that a defendant has an absolute right to withdraw his guilty plea at any time before sentence is pronounced. See OCGA § 17-7-93 (b) (“[a]t any time before judgment is pronounced, the accused person may withdraw the plea of ‘guilty’ and plead ‘not guilty’ ”). Barton contends that the transcript of his plea hearing shows that the trial court neither accepted his plea nor orally pronounced sentence at the hearing and the court therefore retained jurisdiction over his guilty plea. We disagree.

The record shows that Barton was charged with one count of child molestation and one count of sexual battery against a child under the age of sixteen. The transcript of the plea hearing shows that Barton entered into a negotiated guilty plea, under which he pled guilty to the lesser included offense of sexual battery (as opposed to child molestation) as well as to the charge of sexual battery against a child under the age of sixteen. In exchange, the State recommended that Barton be sentenced to five years on each count, with the sentences to run concurrently and with Barton receiving credit for time he had served in incarceration on unrelated charges since August 12, 2010. After ascertaining that Barton was entering his plea knowingly and voluntarily and that a factual basis existed for the plea, the trial court heard the State’s sentencing recommendation. The court determined that Barton had agreed to the State’s sentencing recommendation and advised Barton of the ramifications of his conviction as a sex offender. That same day, the trial court filed the written judgment of conviction and Barton’s sentence, as well as a document entitled “Transcript.” This latter document was signed by Barton and affirmed Barton’s waiver of his right to a jury trial, the fact that he was satisfied with the legal representation he had received, and the fact that he wished to plead guilty to the charges at issue. Attached to this document is a certification, signed by the trial judge, which “ORDERfS] that the plea of the defendant is accepted and shall be entered on the minutes of this court and that the transcript [executed by the defendant] and this certification shall be filed as pleadings in this matter.”

Decided February 3, 2015

Reconsideration denied April 9, 2015.

Paul Barton, pro se.

Barton’s argument that the trial court retained jurisdiction over his guilty plea is based on the trial court’s failure to announce Barton’s sentence orally at the plea hearing. See State v. Germany, 246 Ga. 455-456 (1) (271 SE2d 851) (1980). In Germany, the Supreme Court of Georgia was called upon to decide whether a defendant lost his statutory right to withdraw a guilty plea after the trial court announced the sentence, but before it filed a written sentencing order. The Court answered the question affirmatively, finding that the word “pronounce,” as used in the statute, “means ‘orally announced’ ” and that a defendant therefore loses his absolute right to withdraw his guilty plea “after the trial court’s oral announcement of” the defendant’s sentence. Id. (citations and punctuation omitted). Despite Barton’s intimations to the contrary, however, Germany does not grant a defendant the right to withdraw his guilty plea where the trial court simply neglects to pronounce orally the sentence at the plea hearing but does enter a written judgment of sentence. In such a case, a defendant loses his absolute right to withdraw his guilty plea at the time the written sentence is filed, and any motion to withdraw the plea must be made in the same term of court in which the sentence was filed. See Kaiser v. State, 285 Ga. App. 63, 65 (1) (646 SE2d 84) (2007).

Because the record shows that the trial court accepted Barton’s guilty plea and sentenced him on November 1, 2013, the trial court correctly found that it lacked jurisdiction over Barton’s motion to withdraw his plea. See Hall v. State, 313 Ga. App. 670, 671-672 (1) (722 SE2d 392) (2012). Instead, the only means currently available to Barton for withdrawing his guilty plea is the filing of a habeas corpus petition. Id.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

Leigh E. Patterson, District Attorney, Harold W. Goldin, Jr., Assistant District Attorney, for appellee.

       This sentence was the maximum that Barton could have received for the charges to which he pled guilty. See OCGA § 16-6-22.1 (d), (e). The charge of child molestation carried a maximum penalty of 20 years imprisonment. See OCGA § 16-6-4 (b) (1).

       The record shows that the conduct that resulted in Barton being charged with the crimes at issue occurred sometime between January 2007 and Barton’s incarceration in August 2010. The victim of these crimes, however, did not report them until January 2013, at which time police began their investigation. Barton was indicted that same month.