author: Boggs, Judge.

text:
    A14A0719.
    THE STATE v. WALKER.
    (758 SE2d 836)
   Boggs, Judge.

The State appeals from the trial court’s order granting James D. Walker a new trial on the basis of ineffective assistance of trial counsel. Under the applicable standard of review, the trial court did not clearly err in concluding that counsel’s failure to investigate, interview, and present two exculpatory witnesses constituted ineffective assistance. We therefore affirm.

To succeed on his claim of ineffective assistance, [Walker] must satisfy both prongs of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); that is, he must prove that his attorney’s performance was deficient and that there is a reasonable probability that the result of his trial would have been different but for such deficiency; in this Court’s review of the trial court’s decision regarding the alleged ineffectiveness, this Court is to accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, but it is to independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Jackson v. State, 316 Ga. App. 80, 82 (729 SE2d 404) (2012). “The trial judge, who oversaw the trial and heard the evidence presented at the hearing on the motion for new trial, makes the findings on whether the performance was deficient and whether it prejudiced the defendant, findings that this Court does not disturb unless clearly erroneous.” (Citation and footnote omitted.) Daguilar v. State, 275 Ga. App. 756, 758 (2) (621 SE2d 846) (2005).

Bearing these standards of review in mind, we note that Walker was tried in April 2012 and convicted of aggravated assault, false imprisonment, criminal trespass, and battery arising out of a 2010 encounter with the victim, a former girlfriend. The victim testified at trial that she lived with Walker for a time, but she moved out after having many arguments with him, some of which had “turned physical.” She explained that she had moved in with her grandfather in his mobile home when Walker’s sister called to warn her that Walker “had stole his mama’s car and he was heading my way.” She stated that she tried to flee, but Walker got to the home too quickly. He “jumped out of the car with the radio wide open, yelling and being loud.” She got the car keys away from Walker, called a friend to tell him where the car was, and went to the front of the house to wait. She testified that when Walker saw that police cars were arriving in response to the stolen vehicle call, he grabbed her, pulled her up. under the home, hit her, choked her, “stomped [her] wrists,” and threatened to kill her while “screaming and yelling.”

The State presented four witnesses: the victim; Walker’s sister, who telephoned the victim; the victim’s grandfather, who testified that he heard loud voices and saw Walker push the victim and grab her arm; and a sheriff’s deputy who returned to the scene some time later and located the victim and Walker under opposite ends of the mobile home. None of the witnesses other than the victim saw the acts complained of, although the deputy testified that the victim had a cut on her lip and swelling and “redness” on her face, and the victim’s grandfather testified that she had “marks” on her face and neck. Walker did not testify, but his theory of defense was that he did not harm the victim and that she concealed herself under the home to avoid the police because she was on probation and admittedly had been using drugs that day.

In his motion for new trial, Walker alleged that his trial counsel was ineffective in failing to interview and present two exculpatory witnesses. At the hearing on the motion for new trial, Walker offered testimony from both these witnesses. The first witness, the victim’s cousin, testified that the victim knew that Walker was coming over to pick up a camera, that she was not upset and made no effort to leave, that she and Walker were chatting amicably until the police arrived the first time, whereupon Walker “took off running” and the victim remained with the witness. He testified that after he went back inside he did not hear any noise from under the home, that Walker did not touch the victim and that he would not have allowed him to do so, that there was no altercation, and that nothing happened until the police “pulled back up” and Walker and the victim both “ran up under the house.” He testified that the victim appeared not to want to go to jail and that she “was fine until they pulled her up out from under the house and put the handcuffs on her . . . that’s when she started hollering oh, he beat me up, he beat me up.” He observed that she had no injuries other than “a little scratch on her arm,” which he believed was from the handcuffs. He also testified that he was familiar with the victim’s reputation for truthfulness and that it was “pretty bad.” He explained that she “makes up a lot of stuff... and says stuff that’s not true.”

The second witness, who had known the victim for 15 years, was also present at the home that evening. She saw the victim take a telephone call, after which she announced that Walker was on his way over but appeared “normal”; she did not attempt to leave or ask the witness to take her anywhere. This witness was in the home directly over the crawlspace entrance, but she heard no yelling or arguing and heard nothing from underneath the home. She also observed the victim grabbing her own throat and making marks on herself while she was sitting in the back of the police car. This witness testified that the victim did not have a good reputation for truthfulness and that she would not believe her under oath.

The first witness testified that he wrote Walker a letter from jail, where he was confined from March to November of 2011. In the letter, he offered to testify on Walker’s behalf because “[w]e both know [the victim] got scared and put marks on her self cause she was afraid she was going to jail to[o].” He testified that trial counsel never contacted him and that he never received a subpoena where he was living at the time of the trial. The second witness also testified that trial counsel never interviewed her.

Trial counsel testified that he interviewed Walker nine times between August 2011 and trial in April 2012, including in August, October, and November of 2011, while the first witness was in jail. He acknowledged that Walker did inform him of the existence of the first witness and showed him his letter, and that the information was “exculpatory” and “helpful” to the defense. He testified that he first attempted to reach the witness by mailing him a subpoena on April 5, 2012,13 days before trial. He later tried to reach him by telephone but “[j]ust never could reach him.” The day or the week of trial, counsel attempted to locate the witness through his relatives, who said that he was “on the run.” Trial counsel acknowledged that “if he had been, for example, in jail, I could have tried to get him that way.” He also acknowledged that the second witness was identified in the State’s discovery, but he had no recollection of talking to her or making contact with her; he did not know why he did not remember her, and he had no strategic reason for not investigating her. He agreed that her testimony that she saw the victim putting marks on herself “would have been helpful. That would have been nice to know.”

The trial court found that

trial counsel was deficient in failing to properly investigate the case and by failing to present, or even, interview the two witnesses for the defendant.... Additionally, the Court finds that trial counsel’s ineffective assistance as to this ground has raised a reasonable likelihood that the outcome of the trial would have been different.

The court therefore ordered a new trial.

It is trial counsel’s obligation to conduct a reasonable and thorough pretrial investigation, including locating and interviewing potential witnesses. Tenorio v. State, 261 Ga. App. 609, 612-613 (3) (583 SE2d 269) (2003); see also State v. Lamb, 287 Ga. App. 389, 391-392 (1), (2) (651 SE2d 504) (2007), overruled on other grounds, O’Neal v. State, 285 Ga. 361, 363, n. 4 (677 SE2d 90) (2009). Here, “the record contains evidence supporting the trial court’s conclusion that trial counsel did not adequately investigate the case or present a viable defense.” (Citation and footnote omitted.) State v. McMillon, 283 Ga. App. 671, 672 (1) (642 SE2d 343) (2007), overruled in part on other grounds, O’Neal, supra.

The State argues that the new witnesses are convicted felons, failed to make their testimony known to the sheriff’s office or the district attorney, and contradicted each other in certain details, and that they are therefore unworthy of belief. But, as noted above, the construction of evidence and the credibility of witnesses are questions for the trial court, and, ultimately, for a jury. The State further argues that trial counsel made reasonable efforts to locate the witnesses and that Walker did not sufficiently assist him in doing so. But Walker presented evidence that trial counsel did not attempt to locate the second witness at all, and did not attempt to locate or interview the first witness until shortly before trial, when the information provided by Walker had become stale. See Tenorio, supra, 261 Ga. App. at 613 (3) (trial counsel, not defendant or his family, “ultimately responsible for ensuring a thorough investigation”). Compare Ransom v. State, 297 Ga. App. 902, 906-907 (2) (a) (678 SE2d 574) (2009) (affirming trial court’s rejection of claim of ineffective assistance for failure to locate alibi witness; trial court authorized to believe trial counsel’s testimony, to reject testimony of appellant’s witnesses, and to conclude that counsel made reasonable efforts to locate witness).

Decided May 13, 2014.

Fredric D. Bright, District Attorney, Alison T. Burleson, Assistant District Attorney, for appellant.

Margaret E. Flynt, S. Cindy Wang, for appellee.

In close cases, where the evidence presented by the state is thin, mistakes made by trial counsel take on greater significance. A verdict or conclusion only weakly supported by the record is more likely to have been affected by counsel’s errors. Since the evidence against [Walker] was not overwhelming, resting largely upon the . . . testimony of one witness, a reasonable probability exists that the presence of the [exculpatory] evidence would have affected the result. The trial court did not err in concluding that there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different.

(Citations and punctuation omitted.) State v. Crapp, 317 Ga. App. 744, 748 (2) (732 SE2d 806) (2012) (failure to introduce available evidence corroborating defendant’s account “supports a finding that counsel’s performance was deficient”). Because the evidence supports the trial court’s conclusion that trial counsel’s performance was deficient and that deficiency had a reasonable probability of affecting the outcome of Walker’s trial, we find no error.

Judgment affirmed.

Barnes, R J., and Branch, J., concur.

       Walker raised other claims of ineffective assistance of counsel below, but the trial court did not rule on them as it found this claim to be dispositive.

       In O’Neal, our Supreme Court noted that the strict standard of review set forth in OCGA § 5-5-50 for the first grant of a new trial on the general grounds is inapplicable to the first grant of a new trial on special grounds involving a question of law. Id. at 362-363. That issue is not implicated here.


source: Caselaw Access Project

author: ELLINGTON, Presiding Judge.

license: Public Domain

text:
    A14A0790.
    THOMPSON-EL v. BANK OF AMERICA, N.A. et al.
    (759 SE2d 49)
   ELLINGTON, Presiding Judge.

Ella Thompson-El filed this action in the Superior Court of DeKalb County against Bank of America, N.A. (“BANA”), Federal National Mortgage Association (“Fannie Mae”), McCalla Raymer, LLC (“McCalla”), Century 21 Bryant Realty (“Bryant Realty”), and William Braswell, asserting claims for wrongful foreclosure and intentional infliction of emotional distress. The defendants filed motions to dismiss the complaint for failure to state a claim upon which relief could be granted; the trial court granted the motions and dismissed all of Thompson-El’s claims against the defendants. Thompson-El appeals. For the reasons explained below, we affirm.

1. Thompson-El contends that the trial court erred in considering evidence extrinsic to the pleadings in ruling on the motions to dismiss for failure to state a claim.

“In ruling on a motion to dismiss, the trial court must accept as true all well-pled material allegations in the complaint and must resolve any doubts in favor of the plaintiff.” (Citations and punctuation omitted.) Roberson v. Northrup, 302 Ga. App. 405 (691 SE2d 547) (2010).

If, on motion to dismiss for failure to state a claim, the trial court elects to consider matters outside of the pleadings, the motion shall be treated as one for summary judgment and disposed of as provided in [OCGA §] 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by that code section. OCGA § 9-11-12 (b). ... [W]hen a trial court opts to convert a motion to dismiss for failure to state a claim into one for summary judgment, the party opposing the motion may, if he so desires, have 30 days’ notice in which to prepare evidence in opposition.... However, the 30-day notice [can] of course be waived if it [is] not desired.

(Citations and punctuation omitted.) Cox Enterprises, Inc. v. Nix, 273 Ga. 152, 153 (538 SE2d 449) (2000).

In responding to the motions to dismiss, Thompson-El did not object to the defendants’ reliance upon evidence, but instead submitted affidavits from her own witnesses. In addition, she argues on appeal that the trial court failed to give due regard to her evidence.

Thus, [she] acquiesced in [the defendants’] submission of evidence in support of their motion [s] to dismiss and also, in effect, requested that the motion[s] be converted into [motions] for summary judgment. . . . Where, as here, both parties submit evidence in connection with a motion to dismiss for failure to state a claim, there is no indication of prejudice due to the trial court’s failure to give notice of the actual nature of the pending action.

(Citation and punctuation omitted.) Cox Enterprises v. Nix, 273 Ga. at 154.

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[.]” OCGA § 9-11-56 (c).

Summary judgments enjoy 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. In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

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

2. Thompson-El contends that there is a dispute of fact regarding whether she received advance notice of the foreclosure by certified mail as required by law. Specifically, she contends that, because the record does not contain a certified mail return receipt showing delivery to her, none of the defendants provided “ [i] ndisputable proof” of statutory notice.

“In Georgia, a plaintiff asserting a claim of wrongful foreclosure must establish a legal duty owed to it by the foreclosing party, a breach of that duty, a causal connection between the breach of that duty and the injury it sustained, and damages.” (Citations and punctuation omitted.) Racette v. Bank of America, N.A., 318 Ga. App. 171, 174 (1) (733 SE2d 457) (2012). A lender owes a borrower a duty to exercise a power of sale in a security deed fairly, which includes complying with statutory and contractual notice requirements. Id. at 174-175 (1) (a); OCGA §§ 23-2-114; 44-14-162.2 (a); Frank S. Alexander, Ga. Real Estate Finance and Foreclosure Law, § 8:11 (updated September 2013). OCGA § 44-14-162.2 (a) provides, in pertinent part:

Notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. Such notice shall be in writing, shall include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor, and shall be sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address or to such other address as the debtor may designate by written notice to the secured creditor. . . .

In her complaint, Thompson-El alleged that she purchased a home in 2000 and that she granted BANA a deed to secure debt to secure the corresponding promissory note. She alleged that she defaulted in 2009 and that BANA foreclosed on the property on October 5, 2010, without providing notice by certified mail as required by OCGA § 44-14-162.2. The defendants submitted evidence, however, that BANA’s attorney mailed written notice of the initiation of foreclosure proceedings on September 1, 2010, by certified mail, return receipt requested, and by regular mail to the property address and to Thompson-El’s post office box. Although there is no evidence that Thompson-El received any of the notices, where

the grantee in a security deed mails a notification of the sale under power correctly addressed to the grantor of the security deed in accordance with the provisions of OCGA § 44-14-162.2, the actual receipt, or want of receipt, by the grantor is immaterial to the right of the grantee to sale under power.

(Citation omitted.) Parks v. Bank of New York, 279 Ga. 418, 420 (614 SE2d 63) (2005). Here, the evidence that statutory notice was sent is undisputed. Accordingly, the trial court did not err in granting summary judgment on this basis in favor of BANA. Id.

Similarly, as to McCalla, Thompson-El cannot prevail on her claim for wrongful foreclosure because there is no evidence that the firm failed to follow statutory foreclosure procedures in representing BANA in the foreclosure. McCarter v. Bankers Trust Co., 247 Ga. App. 129, 130-132 (1) (543 SE2d 755) (2000); see also McCalla, Raymer &c. v. C. I. T Financial Svcs., 235 Ga. App. 95, 96 (508 SE2d 471) (1998) (law firm was not a proper party to a claim for wrongful foreclosure where plaintiff alleged only that the firm acted as counsel in the foreclosure). See Division 3, infra. Finally, as to the remaining defendants, Fannie Mae, Bryant Realty, and Braswell, a claim for wrongful foreclosure will not lie because, in the framework of Thompson-El’s complaint, none of them acted as a secured lender or was otherwise involved in foreclosing on her property. See Racette v. Bank of America, N.A., 318 Ga. App. at 174-175 (1) (a).

Accordingly, the trial court did not err in granting summary judgment to the defendants.

3. Thompson-El contends that the trial court erred in dismissing her claim for intentional infliction of emotional distress.

Georgia has long recognized a cause of action for intentional infliction of emotional distress. However, the burden which the plaintiff must meet in order to prevail in this cause of action is a stringent one. To prevail, a plaintiff must demonstrate that: (1) the conduct giving rise to the claim was intentional or reckless; (2) the conduct was extreme and outrageous; (3) the conduct caused emotional distress; and (4) the emotional distress was severe. The defendant’s conduct must be so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.

(Citation and punctuation omitted.) Blue View Corp. v. Bell, 298 Ga. App. 277, 279 (1) (679 SE2d 739) (2009).

In her complaint, Thompson-El alleged that the defendants failed to reverse the foreclosure after she complained that it had taken place without her knowledge, inundated her with court filings, used judicial proceedings to evict her, listed the property for sale and placed a “For Sale” sign in the yard, terminated her Georgia Power account, changed the locks, and obtained a warrant for her arrest for criminal trespass when she would not vacate the property. Taking the allegations of the complaint as true, the facts establish only that the defendants initiated foreclosure proceedings a year after ThompsonE1 entered default and then, after foreclosure, treated her as the owner of real property (or its agent) may treat a squatter on its property. The trial court did not err in concluding that ThompsonEl’s complaint failed to allege any acts by the defendants that were extreme and outrageous or that her emotional distress was so severe that no reasonable person could be expected to endure it. Racette v. Bank of America, N.A., 318 Ga. App. at 179-180 (3); Blue View Corp. v. Bell, 298 Ga. App. at 279-280 (1); Frank v. Fleet Finance, Inc. of Ga., 238 Ga. App. 316, 318 (518 SE2d 717) (1999). Therefore, within the framework of Thompson-El’s complaint, there is no claim for intentional infliction of emotional distress that would allow her to recover.

Decided May 14, 2014.

Sylvia K. Lester, Benjamin L. Bagwell, for appellant.

McGuireWoods, Jarrod S. Mendel, Paul A. Rogers, McCalla Raymer, Steven J. Flynn, Weissman, Nowack, Curry & Wilco, Ned Blumenthal, David S. Klein, for appellees.

Judgment affirmed.

Doyle, R J., and Miller, J., concur.

       Thompson-El’s complaint also named as a defendant BAC Home Loans Servicing, LP. The record does not show that service was perfected on BAC Home Loans Servicing, LP, however, and the trial court’s order does not extend to this defendant.

       Fannie Mae allegedly acquired the property as a result of, or after, foreclosure by BANA and later caused Thompson-El to be evicted, and Bryant Realty and Braswell represented Fannie Mae in marketing the property for sale after foreclosure by BANA.

       See generally Therese K. Fitzgerald, 3 Ga. Juris. Property, § 30:11 (updatedApril 2014).


author: Dillard, Judge.

text:
    A14A0125.
    WHEELER v. THE STATE.
    (758 SE2d 840)
   Dillard, Judge.

Following trial, a jury convicted Weyman E. Wheeler on one count of enticing a child for indecent purposes. Wheeler appeals his conviction and the denial of his motion for new trial, arguing that the trial court erred in denying his motion to strike a prospective juror for cause, excluding evidence that would have impeached the victim’s credibility, charging the jury on the full statutory definition of enticing a child for indecent purposes rather than narrowing the definition to match the allegations in the indictment, failing to adequately respond to the jury’s question regarding the definition of child molestation, and failing to charge the jury regarding the definition of indecent acts or purposes. For the reasons set forth infra, we affirm Wheeler’s conviction.

Viewed in the light most favorable to the jury’s verdict, the record shows that in late February or early March 2011, Wheeler met 15-year-old M. N. through his son, who attended the same school as the young girl. Over the course of the next several weeks, M. N. increasingly spent more time with Wheeler. Specifically, she frequently went with Wheeler and his son to the gym, joined them for boating excursions on the lake, and spent time at their home watching movies. According to M. N., some time in late March 2011, she and Wheeler began a sexual relationship, with M. N. sneaking out of her house late at night and going over to Wheeler’s home a few blocks away.

According to M. N., her sexual relationship with Wheeler continued over the course of the next few months. But in May 2011, one of M. N.’s friends, who knew about the alleged relationship, decided that M. N.’s mother should know what was happening. Consequently, M. N.’s friend told another friend to inform his mother, who was a friend of M. N.’s mother, about the alleged relationship. And shortly thereafter, the friend’s mother informed M. N.’s mother of same. M. N.’s mother and father then confronted M. N., at which point she admitted that she and Wheeler were involved in a sexual relationship.

Wheeler was thereafter charged, via indictment, with one count of aggravated child molestation, one count of child molestation, one count of statutory rape, and one count of enticing a child for indecent purposes. At the conclusion of his trial, the jury acquitted Wheeler on the aggravated-child-molestation charge, failed to reach a verdict on the child-molestation and statutory-rape charges, but convicted him on the enticing-a-child-for-indecent-purposes charge. Subsequently, Wheeler filed a motion for new trial, which the trial court denied after a hearing. This appeal follows.

1. Wheeler first contends that the trial court erred in denying his motion to strike a prospective juror for cause. We disagree.

Under Georgia law, there is a presumption that potential jurors are impartial, and the burden of proving partiality “lies with the party seeking to have the juror disqualified.” Furthermore, whether to strike a juror for cause lies within the sound discretion of the trial court, and a trial court “is not obligated to strike a juror for cause in every instance [in which] the potential juror expresses doubts about his or her impartiality or reservations about his or her ability to set aside personal experiences.” Indeed, the trial judge is uniquely positioned to “observe a potential juror’s demeanor and thereby to evaluate his or her capacity to render an impartial verdict.” But the trial court must excuse a potential juror for cause based on the juror’s partiality, if an opinion held by the potential juror is “so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.”

Here, during voir dire, the prospective juror in question responded affirmatively when Wheeler’s trial counsel posed a general query to the pool regarding whether the nature of the allegations in this matter would make it impossible for the jurors to be fair. Later, the State’s prosecutor questioned the prospective juror about her earlier response, asking why the allegations in the case would make it hard for her to be fair. The juror responded as follows: “I guess I’m just prejudiced to children. And to hear they’ve been abused—I don’t know. My heart just goes out to them.” The State’s prosecutor then asked whether she could put this bias aside, and the prospective juror responded “I would like to think I could, but I’m still—seem to always be on the child’s side when I hear these things on TV or wherever.” And when pressed further, the juror stated, “I mean, I hope I could be fair, but I’m just prejudiced, I guess toward children.”

Thereafter, Wheeler’s trial counsel and the prospective juror engaged in the following colloquy:

Q: Would it be safe to say that you would like to be fair, you would hope to be fair, but at the end of the day, because of your strong feelings, you just really can’t be fair?
A: I hate to admit that but... I mean, I would want to be fair. Like you say, I want people to be fair with me____But I’ve just got a weak spot for children that are taken advantage of.
Q: I hear you. Don’t let me put words in your mouth, but I think what I hear you saying is you want to be, you would like to be, you would hope to be, but in the end, you just can’t be?
A: No, I didn’t say “can’t be.”
Q: Okay. It would be difficult for you to be fair.
A: It would be maybe difficult, yeah.
Q: And you’re clearly struggling with that issue, and so let me ask you this way: In your heart of hearts, do you think you can be fair?
A: I would like to think I could be fair.
Q: You think because of your feelings for children you would be biased in favor of the children?
A: Yes.
Q: And prejudiced in their favor?
A: Yes.
Q: Which means you would be prejudiced against Mr. Wheeler by inference, correct?
A: I guess. Maybe.
Q: Do you think that would color your deliberations, would color the way you listen to the evidence? . . . Influence you. You would have this nagging feeling that no matter what, you would be inclined to believe what these children said?
A: Well, I would hate to think when I heard all the evidence that I would, no matter what, just take one side or the other. I would like to think I am the kind of person that would listen to all of it. . . .

Based on this exchange, Wheeler’s trial counsel moved for the prospective juror to be struck for cause. But the State objected, and the trial court denied the motion. Ultimately, Wheeler used one of his peremptory strikes to exclude this prospective juror. Nevertheless, given the foregoing, we find that the trial court did not err in concluding that the prospective juror had not formed a fixed or definite opinion regarding Wheeler’s guilt or innocence. Indeed, we have previously explained that it is “not an abuse of discretion to seat a juror who questions her ability to set aside biases so long as the juror indicates she has no unalterable fixed prejudices.” Accordingly, the trial court did not abuse its discretion in denying Wheeler’s challenge for cause as to this prospective juror.

2. Wheeler also contends that the trial court erred in excluding a hard copy of the victim’s post on the social-media website Twitter, which would have impeached the victim’s credibility. We disagree.

At the outset, we note that, as a general rule, “admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” And printouts from electronic-computer sources are subject to the same rules of evidence as other documents.

Here, while cross-examining M. N., Wheeler’s trial counsel asked whether she had ever posted (i.e., “tweeted”) anything about Wheeler on her Twitter* profile page and home timeline. In response, M. N. admitted to having a Twitter account, but denied ever tweeting about Wheeler. At that point, the jury was excused, and Wheeler’s counsel moved to introduce a printout of a screenshot of M. N.’s Twitter profile page, in which M. N. posted “my heart cries out for you. no matter how much i want you, ill [sic] never have.” Specifically, counsel argued that this tweet supported the defense theory that M. N. was obsessed with Wheeler and that this obsession had no basis in reality. However, after noting that M. N.’s tweet did not mention Wheeler by name, the trial court ruled that Wheeler had failed to establish the relevance of this tweet and denied his request.

Nevertheless, later during the trial, M. N.’s friend, who knew about M. N.’s alleged relationship with Wheeler, testified on cross-examination that M. N. had in fact tweeted about Wheeler. Andbased on this testimony, Wheeler’s trial counsel asked the trial court to reconsider its earlier ruling excluding the screenshot of the tweet. The court refused to do so. But immediately thereafter, and in the presence of the jury, Wheeler’s counsel read the entire tweet to M. N.’s friend, who confirmed that M. N. had tweeted it and that it was about Wheeler—even though he was not mentioned by name in the tweet.

Given the foregoing, even assuming the trial court erred in excluding the actual screenshot of the tweet in question, we conclude that reversal is not required because the tweet was essentially admitted into evidence by being read to the jury and used to impeach M. N.’s credibility through the testimony of M. N.’s friend. Accordingly, we find it highly probable that exclusion of the screenshot did not affect the outcome of the proceedings.

3. Wheeler also contends that the trial court erred in charging the jury on the full statutory definition of enticing a child for indecent purposes rather than narrowing the definition to match the allegations in the indictment. Once again, we disagree.

It is well established that trial courts should tailor their charges to match the allegations of indictments, “either by charging only the relevant portions of the applicable Code sections or by giving a limiting instruction that directs the jury to consider only whether the crimes were committed in the manner alleged in the indictment.” And in reviewing an allegedly erroneous jury instruction, we apply the “plain legal error standard of review.”

Initially, it is important to note that Wheeler did not object to any portion of the trial court’s jury charges, and under OCGA § 17-8-58, “[a]ny party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.” And the failure to so object precludes appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects the substantial rights of the parties. In such cases, as the Supreme Court of Georgia has explained, “the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.” Thus, because Wheeler failed to object whatsoever to the jury charges, our review is limited to consideration in this regard.

In the case sub judice, Count 4 of the indictment charged Wheeler with the offense of enticing a child for indecent purposes by alleging that he “did take [M. N.], a child under 16 years of age, to the residence of said accused for the purpose of indecent acts, in violation of OCGA § 16-6-5, contrary to the laws of said State, the good order, peace and dignity thereof.” And during its jury charges, the court instructed the jury on the enticing-a-child-for-indecent-purposes offense as follows: “A person commits the offense of enticing a child for indecent purposes when that person solicits, entices or takes any child under the age of 16 to any place for the purpose of indecent acts.”

Wheeler argues that in charging the jury on the full statutory definition of enticing a child for indecent purposes, the trial court committed plain error because the court allowed the jury to believe that it could convict him if he “solicited” or “enticed” M. N. to his home for the purpose of indecent acts rather than limiting the jury’s consideration to whether he “took” M. N. to his home for that purpose (as alleged in the indictment).

It is true that a criminal defendant’s right to due process may be endangered when “an indictment charges the defendant with committing a crime in a specific manner and the trial court’s jury instruction defines the crime as an act which may be committed in a manner other than the manner alleged in the indictment.” And the giving of a jury instruction which deviates from the indictment violates due process when “there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment.” But pretermitting whether there was evidence that Wheeler “enticed” or “solicited” M. N., we find no due-process violation in this instance because

[w]hile instructing the jury that a crime can be committed in a manner different from that charged in the indictment can constitute reversible error, a reversal is not mandated [when], as here, the charge as a whole limits the jury’s consideration to the specific manner of committing the crime alleged in the indictment.

And indeed, in the case sub judice, the trial court instructed the jury that the State had the burden of proving every material allegation in the indictment beyond a reasonable doubt, further instructed that the jury could only find the defendant guilty if it found beyond a reasonable doubt that he committed the offenses “as described in the indictment,” and sent the indictment out with the jury during its deliberations. Accordingly, these instructions, when considered in their entirety, cured any potential error pertaining to the enticing-a-child-for-indecent-purposes charge.

4. Wheeler further contends that the trial court erred when it responded to the jury’s question as to whether child molestation “requires sex” by instructing the jury to review its copy of the charges and the indictment regarding child molestation. Again, we disagree.

We first note that the “need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court.” And here, shortly after beginning its deliberations, the jury submitted a note to the trial court asking as follows: “Does child molestation require sex?” Then, during the ensuing discussion between counsel and the trial court as to how to best address the jury’s question, Wheeler’s trial counsel agreed that “[s]ex is not a legal term” and further suggested that the court tell the jury to refer back to the jury charge and indictment. The jury was brought back into the courtroom, and the trial court did exactly as defense counsel suggested. Thus, because Wheeler explicitly agreed with this approach, he has waived review of this issue on appeal.

5. In his final enumeration of error, Wheeler contends that the trial court erred in failing to charge the jury on the definition of “indecent acts” or “purposes.” But in the section of his appellate brief supposedly dedicated to this contention, Wheeler appears, instead, to reassert his argument that the trial court erred in providing the full statutory definition on enticing a child for indecent purposes, which he contends allowed him to be convicted in a manner not alleged in the indictment. Regardless, we disagree.

Decided May 16, 2014.

Billy L. Spruell, Melinda D. Taylor, for appellant.

Lee Darragh, District Attorney, Juliet Aldridge, Assistant District Attorney, for appellee.

First, the terms “indecent act” and “indecent purpose” require no further definition because they are terms that are well within the knowledge of the average person. Additionally, to the extent that Wheeler is reasserting his contention that the trial court erred in charging the jury on the full statutory definition of enticing a child for indecent purposes rather than narrowing the definition to match the allegations in the indictment, as we held in Division 3, supra, the trial court’s instruction to the jury that the State was required to prove the offense as charged in the indictment cured any potential problems with the enticing-a-child-for-indecent-purposes charge and did not constitute plain error.

Judgment affirmed.

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

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

        Culajay v. State, 309 Ga. App. 631, 634 (2) (710 SE2d 846) (2011) (punctuation omitted).

        Id. at 634-35 (2) (punctuation omitted).

        Id. at 635 (2) (punctuation omitted).

        Id. (punctuation omitted).

       We note that the State argues that Wheeler has not demonstrated harm because the record does not show that he exhausted his peremptory strikes. But the Supreme Court of Georgia has abandoned this rule, holding that “[t]he defendant’s use of his peremptory strikes will... no longer play a role in our evaluation of the harm caused by the refusal to strike an unqualified juror.” Harris v. State, 255 Ga. 464, 465 (2) (339 SE2d 712) (1986).

        See Daniel v. State, 296 Ga. App. 513, 520-22 (6) (675 SE2d 472) (2009) (holding that trial court did not err in failing to dismiss juror who expressed bias toward children when she further stated that she would listen to the evidence and follow the law); Chatman v. State, 283 Ga. App. 673, 674-75 (1) (642 SE2d 361) (2007) (holding that jurors who expressed personal biases, but stated they could be fair, did not require dismissal).

        Daniel, 296 Ga. App. at 522 (6).

        Smith v. State, 302 Ga. App. 128, 130 (1) (690 SE2d 449) (2010) (punctuation omitted).

        See Burgess v. State, 292 Ga. 821, 823 (4) (742 SE2d 464) (2013); Smoot v. State, 316 Ga. App. 102, 109 (4) (a) (729 SE2d 416) (2012).

       “Twitter is an online social networking service and microblogging service that enables its users to send and read text-based messages of up to 140 characters, known as ‘tweets.’ ” http://en.wikipedia.org/wiki/Twitter (site last visited April 1, 2014).

        See https://support.twitter.com/articles/119138-types-of-tweets-and-where-theyappear (noting that “normal tweets” appear on the sender’s “profile page and home timeline”) (last visited April 17, 2014).

       A “screenshot” is “an image that shows the contents of a computer display.” Merriam-Webster, http://www.merriam-webster.com/dictionary/screenshot (last visited March 24,2014).

        See Boothe v. State, 293 Ga. 285, 294 (3) (745 SE2d 594) (2013) (holding that any error in excluding impeachment evidence about witness’s drug use in general was harmless, when witness was heavily impeached in other ways); Mitchell v. State, 293 Ga. 1, 2-3 (2) (742 SE2d 454) (2013) (holding that error, if any, in excluding portion of defendant’s statement to police was harmless because similar evidence was admitted through the testimony of another witness).

        Daniels v. State, 310 Ga. App. 562, 565 (2) (714 SE2d 91) (2011) (punctuation omitted).

        Id.

       OCGA § 17-8-58 (a).

        Alvelo v. State, 290 Ga. 609, 615 (5) (724 SE2d 377) (2012).

        Id. (punctuation omitted).

        See OCGA § 17-8-58 (b); see also King v. State, 317 Ga. App. 834, 837 (1) (733 SE2d 21) (2012).

        Machado v. State, 300 Ga. App. 459, 462 (5) (685 SE2d 428) (2009) (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        See id. at 462-63 (5) (holding that trial court’s jury instructions as a whole, which indicated that defendant could only be found guilty if the State proved every material allegation in the indictment, cured any potential problem that may have occurred when the court charged the entirety of the child-molestation statute); Stephens v. State, 255 Ga. App. 680, 684-85 (6) (569 SE2d 250) (2002) (noting that “[a]s a general rule, it is not error to charge an entire Code section even though part of the section may be inapplicable,” and holding that charging the jury on the entire child-molestation statute, despite the narrower language in the indictment, was not error when the court also instructed the jury that the State must prove the offense as charged in the indictment).

        Tidwell v. State, 312 Ga. App. 468, 474 (4) (718 SE2d 808) (2011) (punctuation omitted).

        See Lake v. State, 293 Ga. 56, 57 (3) (743 SE2d 414) (2013) (holding that defendant failed to preserve for appeal argument that trial court inadequately recharged the jury after jury requested a written definition of a charge when, after discussing the issue, defendant explicitly agreed with trial court’s response to the jury’s request); see also Cheddersingh v. State, 290 Ga. 680, 682-83 (2) (724 SE2d 366) (2012) (explaining that affirmative waiver, as opposed to mere forfeiture by failing to object, prevents a finding of “plain error” under OCGA § 17-8-58 (b)).

        See Jackson v. State, 274 Ga. App. 26, 31 (4) (619 SE2d 294) (2005) (holding that the term “indecent act” required no further definition); see also Millhollan v. State, 221 Ga. 165, 169 (4) (143 SE2d 730) (1965) (holding that statute making it a crime to take “immoral, improper, or indecent liberties with a child,” or to commit “lewd or lascivious act upon the body or any part or member thereof of such child,” does not violate due process because it fails to define the quoted language).


text:
    A14A0246.
    PATEL et al. v. J.P. MORGAN CHASE BANK, N.A.
    (757 SE2d 460)
   Dillard, Judge.

Mukesh and Sangeeta M. Patel (collectively, “the Patels”) appeal the trial court’s grant of summary judgment to J.P. Morgan Chase Bank, N.A. (“Chase Bank”) and the court’s reinstatement of Chase Bank’s security deed on the Patels’ property. The Patels argue that the trial court erred in (1) reinstating the security deed after Chase Bank cancelled it and (2) granting summary judgment to Chase Bank on the Patels’ claim for wrongful foreclosure. For the reasons set forth infra, we affirm.

At the outset, we note that on appeal from a grant of a motion for summary judgment, we review the evidence “de novo in the light most favorable to the nonmovant to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law.” As the moving party, Chase Bank may do so by showing the court that “the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case.”

So viewed, the record reflects that on April 25, 2005, the Patels signed a security deed in favor of Chase Bank. On July 1,2005, Chase Bank mistakenly recorded a cancellation of the security deed, which represented that the indebtedness had been paid in full. Nevertheless, it is wholly undisputed between the parties that the indebtedness was not, in fact, paid in full; that the Patels continued to make payments to Chase Bank; and that the Patels eventually defaulted on that indebtedness. In 2011, Chase Bank began nonjudicial foreclosure proceedings, after which the Patels became aware of the recorded cancellation of the security deed and filed a complaint for wrongful foreclosure and unjust enrichment.

Chase Bank answered and filed a counterclaim, seeking a declaratory judgment reinstating the security deed and declaring the power-of-sale provision effective. Chase Bank then sought summary judgment on the Patels’ complaint and on its counterclaim. The trial court denied Chase Bank’s motion as to the Patels’ claim for wrongful foreclosure, granted it as to the Patels’ claim for unjust enrichment, and granted it as to Chase Bank’s request for declaratory judgment reinstating the security deed. Thereafter, the trial court issued an order reinstating the security deed and later granted Chase Bank’s renewed motion for summary judgment on the Patels’ wrongful-foreclosure claim. This appeal follows.

1. First, the Patels argue that the trial court erred by reinstating Chase Bank’s security deed after Chase Bank erroneously recorded a cancellation of the deed. Specifically, the Patels contend that the negligent cancellation forfeited Chase Bank’s right to a nonjudicial foreclosure, that the mistake was unilateral, and that laches barred Chase Bank from asserting its rights to a nonjudicial foreclosure. We disagree.

Although it is unclear why Chase Bank recorded a cancellation of the Patels’ security deed only three months after the deed was signed and recorded, it is completely undisputed that the cancellation was recorded in error because the Patels had not—and have not— repaid the balance of the indebtedness. The heart of the Patels’ contention in this enumeration of error is that the trial court should not have reinstated the cancelled security deed because the cancellation was the result of Chase Bank’s own negligence and because Chase Bank was unaware of the cancellation until the Patels discovered it some six years after being recorded. We find these arguments unpersuasive, and we conclude that the trial court did not err in reinstating the security deed.

A deed to secure debt passes legal title to the lender when the deed to secure debt is created, and the owner has “a mere equity of redemption and right of possession of the realty until the secured debt has been satisfied in full.” Generally, the cancellation of a deed to secure debt results in title to the property being reconveyed to the grantor. However, as a matter of law, title does not pass back to the grantor in the absence of full payment of the debt. Accordingly, when, as here, a cancellation of a deed to secure debt is erroneously recorded, the grantee’s security interest is not reconveyed. Furthermore, “the sole purpose and effect of recordation of both deeds of bargain and sale and of deeds and bills of sale to secure debt... is to afford . . . constructive notice of the existence of such deed” to third parties.

Here, Chase Bank sought to set aside the recorded cancellation by reinstatement of the security deed, which the trial court granted. Thus, the recorded cancellation not having reconveyed title, and the trial court having reinstated the security deed, Chase Bank retained its right to exercise nonjudicial foreclosure. Indeed,

[a] power of sale in a mortgage or security deed becomes a part of the security, conferred for the purpose of effectuating the same. It is a remedy by contract intended to substitute the remedy by law, should the creditor see fit to avail himself of it. A sale thereunder is for some purposes the equivalent of a sale under a court foreclosure. It is a distinct advantage to a creditor, whether he pleases to exercise it or not. It adds to the attractiveness of his security.*

Accordingly, contrary to the Patels’ argument, Chase Bank has not forfeited its right to a nonjudicial foreclosure and, for the same reasons, was not unjustly enriched by the Patels’ continued payments, making summary judgment appropriate.

Still, the Patels contend that the trial court should not have reinstated the security deed when Chase Bank erroneously filed the cancellation and failed to discover the error. In this respect, we note that “[ejquity considers that done which ought to be done and directs its relief accordingly,” and equitable relief “may be granted even in cases of negligence by the complainant if it appears that the other party has not been prejudiced thereby.” Here, although the initial recordation of the cancellation is unexplained and the cancellation was only discovered when the Patels admittedly defaulted on payments and Chase Bank instituted nonjudicial foreclosure proceedings, it is wholly undisputed that the Patels continued to make payments on the indebtedness after the cancellation was recorded. The Patels have not asserted any prejudice by the reinstatement of the security deed, and no third party relied upon the recorded cancellation in the interim. Accordingly, the trial court did not err by reinstating the security deed.

2. Next, the Patels argue that the trial court erred by relying on facts not in evidence when it granted summary judgment to Chase Bank. Specifically, the Patels contend that the court expressed an opinion as to what had not been proved, in violation of OCGA § 9-10-7, and erred overall in granting summary judgment on their wrongful-foreclosure claim.

To begin with, the complained-of comment was made during the hearing on Chase Bank’s renewed motion for summary judgment as to the claim of wrongful foreclosure. Prior to the hearing, the Patels filed a motion to vacate the order reinstating the security deed, and in response to the arguments made on that motion, the trial court commented upon Chase Bank’s failure to recognize the cancellation’s recordation and opined that nobody seemed to know how the security deed came to be cancelled. However, this comment was made during a hearing on a motion for summary judgment and was thus in no way a violation of OCGA § 9-10-7, the purpose of which “is to prevent a jury from being influenced by the judge’s opinion.”

In a separate subheading under this enumeration of error, the Patels argue that the trial court “erred by granting [Chase Bank’s] summary judgment motion[,] preventing the [Patels] from proving entitlement to equitable relief and damages.” In this regard, they argue that the trial court should not have granted summary judgment on their claim of wrongful foreclosure because the advertisements for the nonjudicial foreclosure sale were published at a time when the security deed was recorded as cancelled and, thus, that any attempt to conduct a nonjudicial foreclosure sale “constituted an action for wrongful foreclosure.” The Patels’ complaint sought to enjoin the foreclosure when the security deed was recorded as can-celled, contending that the cancelled security deed would have a chilling effect on bids and result in an inability to produce a bona fide purchaser. But after the trial court reinstated the cancelled security deed, the Patels’ concerns were rendered moot, and summary judgment was indeed appropriate. Additionally, no foreclosure sale has yet taken place. In sum, the trial court properly granted summary judgment.

Decided May 1, 2014

Reconsideration denied May 19, 2014

Edward R. Downs, Jr., Obreziah L. Bullard, for appellants.

Wargo & French, David M. Pernini, for appellee.

For all of the foregoing reasons, we affirm the trial court’s judgment.

Judgment affirmed.

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

        Burnside v. GEICO Gen. Ins. Co., 309 Ga. App. 897, 898 (714 SE2d 606) (2011) (punctuation omitted).

        Id. (punctuation omitted).

       Chase Bank first sought to remove the case to federal court, but it was remanded back to state court.

        McCarter v. Bankers Trust Co., 247 Ga. App. 129, 132 (2) (543 SE2d 755) (2000); see also OCGA § 44-14-60 (“Whenever any person in this state conveys any real property by deed to secure any debt. . . , the conveyance of real or personal property shall pass the title of the property to the grantee until the debt or debts which the conveyance was made to secure shall be fully paid.”).

        See OCGA § 44-14-67 (a) (“In all cases where property is conveyed to secure a debt, the surrender and cancellation of the deed, in the same manner as mortgages are canceled, on payment of the debt to any person legally authorized to receive the same, shall operate to reconvey the title of the property to the grantor or the grantor’s heirs, executors, administrators, or assigns.”); Nw. Carpets, Inc. v. First Nat’l Bank of Chatsworth, 280 Ga. 535, 537 (1) (630 SE2d 407) (2006) (“[F]ull payment of the secured indebtedness, as a matter of law, passes legal title back to the grantor.”).

        See OCGA § 44-14-67 (a); Nw. Carpets, 280 Ga. at 537 (1); see also Taylor, Bean & Whitaker Mrtg. Corp. v. Brown, 276 Ga. 848, 850-51 (2) (583 SE2d 844) (2003) (“]B]ecause the debt that the conveyance was made to secure has not been fully paid, [the appellee] was not entitled to cancellation of the security deed.”).

        See Mak v. Argent Mrtg. Co., LLC, Civil Action No. 1:07-cv-02806-JOF, 2009 WL 2997916, at *7 (II) (B) (N.D. Ga. Sept. 15, 2009) (holding that despite erroneous cancellation of security deed, bank “retained its security interest in the property by operation of OCGA § 44-14-67 (a) because the mortgage debt had never been paid”); accord Poff v. Bank of America, Bank. No. 08-53493-JDW, 2010 WL 5257223, at *3 (Bankr. M.D. Ga. Dec. 17, 2010) (same).

        Reidling v. Holcomb, 225 Ga. App. 229, 230 (1) (483 SE2d 624) (1997) (punctuation omitted); see also Glover v. Cox, 137 Ga. 684, 690 (3) (73 SE 1068) (1912) (“The registry of a deed serves a dual function];] it is constructive notice of the existence of the original deed, and permits its reception in evidence without proof of its execution.”); McElwaney v. MacDiarmid, 131 Ga. 97, 98(3) (62 SE 20) (1908) (holding that the recordation of a deed provides constructive notice).

        See Davis v. Johnson, 241 Ga. 436, 439 (246 SE2d 297) (1978) (reversing trial court’s refusal to reinstate bank’s security interest after cancellation).

        See Lewis v. King, 165 Ga. 705, 705 (2) (141 SE 909) (1928) (“[When] the title to land is conveyed to secure a debt, and the instrument is not merely a mortgage, a power of sale on failure to make payment is a power coupled with an interest...” (punctuation omitted)).

         Gurr v. Gurr, 198 Ga. 493, 508-09 (4) (32 SE2d 507) (1944) (citations omitted) (emphasis supplied).

        See Petrakopolous v. Vranas, 325 Ga. App. 332, 342 (3) (c) (750 SE2d 779) (2013) (“Unjust enrichment applies when as a matter of fact there is no legal contract, but when the party sought to be charged has been conferred a benefit by the party contending an unjust enrichment which the benefitted party equitably ought to return or compensate for.” (punctuation omitted)).

       OCGA § 23-1-8.

       OCGA § 23-2-32 (b).

        See Waller v. Golden, 288 Ga. 595, 597 (1) (706 SE2d 403) (2011) (“The trial court may bar a complaint based on laches when the lapse of time and the claimant’s neglect in asserting rights results in prejudice to the adverse party.” (punctuation omitted)); see also Whitfield v. Whitfield, 204 Ga. 64, 67 (2) (48 SE2d 852) (1948) (“Laches is not a matter of time but a question of inequity founded on a change in conditions.”).

        See G.E. Capitol Mrtg. Svcs., Inc. v. Neely, 519 SE2d 553, 557-58 (N.C. App. 1999) (holding that trial court did not err by reinstating mistakenly cancelled deed of trust when party admitted to never having paid off the underlying debt, the error was timely realized and sought to be corrected, reinstatement was timely filed, and no third party relied upon the mistaken cancellation in the interim).

       The trial court previously denied a motion for reconsideration on the earlier grant of summary judgment.

        In the Interest of D. W., 300 Ga. App. 438, 442 (2) (685 SE2d 311) (2009); see also OCGA § 9-10-7 (“It is error for any judge, during the progress of any case, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved.”).

        See Gregorakos v. Wells Fargo Nat’l Assn., 285 Ga. App. 744, 747-48 (2) (647 SE2d 289) (2007) (“[A] plaintiff asserting a claim of wrongful foreclosure must establish a legal duty owed to it by the foreclosing party, a breach of that duty, a causal connection between the breach of that duty and the injury it sustained, and damages.” (punctuation omitted)).

        Cf. Scarbrough Group v. Worley, 290 Ga. 234, 238 (719 SE2d 430) (2011) (holding that trial court correctly granted summary judgment when plaintiff’s claim for injunctive relief was rendered moot during course of litigation).

        Cf. Racette v. Bank of Am., N.A., 318 Ga. App. 171, 174-78 (1) (a), (b) (733 SE2d 457) (2012) (holding that trial court erred in dismissing claims for wrongful foreclosure when the record showed that the appellants may have been able to establish that the published foreclosure advertisement contained inaccuracies, that the foreclosure sale was conducted in an unfair manner, and that the appellant was harmed by the defective sale).


author: McFadden, Judge.

text:
    A12A0581.
    SPRUILL et al. v. GEORGIA DEPARTMENT OF HUMAN SERVICES et al.
    (759 SE2d 57)
   McFadden, Judge.

In Spruill v. Ga. Dept. of Human Svcs., 317 Ga. App. 226 (729 SE2d 654) (2012), this court reversed the trial court’s dismissal of the underlying complaint. The Supreme Court of Georgia reversed that opinionin Ga. Dept. of Human Svcs. v. Spruill, 294 Ga. 100 (751 SE2d 315) (2013). We therefore vacate our earlier opinion, adopt the Supreme Court’s opinion as our own, and affirm the judgment of the trial court.

Decided May 20, 2014.

James A. Attwood, for appellants.

Samuel S. Olens, Attorney General, Jennifer L. Dalton, Senior Assistant Attorney General, Ronald S. Boyter, Assistant Attorney General, for appellees.

Judgment affirmed.

Barnes, P. J., and McMillian, J., concur.


text:
    A14A0422.
    THE STATE v. LeJEUNE.
    (759 SE2d 53)
   Dillard, Judge.

The State appeals the trial court’s grant of Jodin LeJeune’s motion to suppress evidence discovered as a result of a traffic stop. On appeal, the State contends that the trial court erred in granting the motion on the grounds that (1) the police officer lacked reasonable, articulable suspicion to follow LeJeune’s vehicle, and the stop of the vehicle was pretextual; and (2) the officer violated department policy when he followed the vehicle. We agree that the trial court erred in granting the motion to suppress and therefore reverse.

At the outset, we note that at a hearing on a motion to suppress, “the trial judge sits as the trier of fact.” And when this Court reviews the grant or denial of a motion to suppress, we must construe the evidence “most favorably to uphold the findings and judgment of the trial court, and that court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous.” However, we owe “no deference to the trial court’s conclusions of law” and are instead “free to apply anew the legal principles to the facts.”

So viewed, the record reflects that at approximately 2:00 a.m. on February 9, 2011, a Gwinnett County police officer was patrolling around the Mall of Georgia area in Buford when he observed LeJeune’s vehicle. LeJeune pulled out of the parking lot of a restaurant that, according to the officer, had a reputation in the department for being a frequent source of drivers who were under the influence of alcohol. Accordingly, the officer admitted that he, like other officers, paid particular attention to that specific intersection of the patrol area beginning around 1:30 a.m. The officer also admitted that “other officers” had, in the past, sat in a parking lot across from the restaurant to watch patrons leave and that his lieutenant advised officers against doing this after the restaurant complained of this practice. But the officer testified that he was actually driving in the area on the night in question when he spotted LeJeune.

It is wholly undisputed that when the officer decided to follow LeJeune’s vehicle he had committed no traffic offenses and that the officer had no reasonable, articulable suspicion that he was committing or about to commit a crime. The officer followed LeJeune for approximately one-and-a-half to two miles before observing him cross the centerline and weave within his lane. At that point, the officer initiated a traffic stop for failure to maintain lane.

Thereafter, LeJeune was charged by accusation with driving under the influence of alcohol, possession of marijuana, failure to maintain lane, driving under the influence of drugs, and driving under the influence of drugs and alcohol. He moved to suppress the evidence in October 2012 and, after a hearing, the trial court denied the motion and a subsequent motion for reconsideration. Then, just prior to trial, the trial court reversed course and granted LeJeune’s motion for the reasons set forth supra. This appeal by the State follows.

1. First, the State argues that the trial court erred in granting LeJeune’s motion on the grounds that the officer lacked reasonable, articulable suspicion to follow LeJeune, and that the stop was pretextual. We agree.

Despite LeJeune’s arguments to the contrary, there is no support for his position that an officer must have reasonable, articulable suspicion that a crime has been or is about to be committed prior to even following an individual. To be sure, LeJeune is correct that,

[when] no circumstances at all appear which might give rise to an articulable suspicion (less than probable cause, but greater than mere caprice) that the law has been violated, the act of following and detaining a vehicle and its occupants must be judged as an impermissible intrusion on the rights of the citizen.

Nevertheless, our Supreme Court has emphasized that implicit in such cases is that “each case must turn on its own independent circumstances bearing on the issue of reasonableness of the seizure.”* In other words, as is clear from the holding in those cases themselves, the focus is on the ultimate stop of the individual, not on the “following” that led to the seizure.

We made this same observation in State v. Wright, in which this Court previously addressed and rejected the very argument LeJeune makes in this appeal. There, we held that, consistent with the State’s ability to practice preventative therapy by means of reasonable road checks, “[a] most effective preventive therapy prescription is that of the traffic police merely following citizens who are driving motor vehicles.” And the act of following citizens in motor vehicles “is not unreasonable within the meaning of the Fourth Amendment when conducted” within parameters established by the Supreme Court of the United States. Accordingly, unless police conduct would, under the totality of the circumstances, “result in an unreasonable seizure, no Fourth Amendment violation warranting evidence suppression occurs.”

Here, the officer’s act of following LeJeune was not a seizure. As in Wright, the only submission to officer authority occurred when LeJeune stopped his vehicle in response to the officer’s flashing lights, and the officer only initiated his lights—and the stop itself— after LeJeune failed to maintain his lane, at which point the officer had probable cause justifying the stop. Accordingly, we agree with the State that the trial court erred in granting the motion to suppress on grounds that the officer’s stop was pretextual.

2. Next, the State argues that the trial court erred in granting the motion to suppress on the ground that the officer’s decision to follow LeJeune was a violation of department policy. Again, we agree.

The heart of LeJeune’s argument in this regard is that the officer “profiled” him on the basis of his having patronized a restaurant that was known to department officers as being a frequent source of drivers under the influence of alcohol. LeJeune argues that this was a violation of the department’s policy prohibiting “bias-based profiling.” However, the very portion of the department policy that prohibits “bias-based profiling” acknowledges that “[profiling, the generation of a set of common traits specific to a pattern of crime, can be a useful tool to officers in carrying out their duties” and specifies that “the selection of individuals based solely on a trait common to a group for enforcement action” is what is disallowed. Accordingly, it appears that this policy is directed at the prevention of targeting individuals on the basis of race, religion, or other such traits, and LeJeune makes no such allegation in the case sub judice.

Additionally, the policy of the department is “to investigate suspicious persons and circumstances, and to actively enforce traffic laws.” And citizens will only be stopped or detained when “there exists reasonable suspicion to believe that they have committed, are committing, or are about to commit a violation of the law.” Our resolution of the issues in Division 1 forecloses any contention that the officer stopped or detained LeJeune without reasonable suspicion and, accordingly, there was no violation of any department policy with an attendant Fourth Amendment violation to warrant application of the exclusionary rule.

Decided May 20, 2014.

Rosanna M. Szabo, Solicitor-General, JohnB. Weitnauer, Assistant Solicitor-General, for appellant.

George L. Kimel, for appellee.

For all the foregoing reasons, we reverse the trial court’s grant of LeJeune’s motion to suppress.

Judgment reversed.

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

        State v. Hamby, 317 Ga. App. 480, 481 (731 SE2d 374) (2012).

        Id.

        Martin v. State, 316 Ga. App. 220, 220 (729 SE2d 437) (2012) (punctuation omitted).

       What occurred next does not appear in the record, as LeJeune only challenged the officer’s stop of the vehicle.

        See OCGA § 40-6-391 (a) (1).

        See OCGA § 16-13-2 (b).

        See OCGA § 40-6-48 (1).

        See OCGA § 40-6-391 (a) (2).

        See OCGA § 40-6-391 (a) (4).

        Brooks v. State, 129 Ga. App. 109, 111 (198 SE2d 892) (1973) (emphasis supplied).

        Brisbane v. State, 233 Ga. 339, 342 (211 SE2d 294) (1974) (emphasis supplied).

        See, e.g., Brooks, 129 Ga. App. at 111 (“The stop effected by turning on the police light and driving up beside the car to halt it was a coercive action which infringed upon the defendant’s Fourth Amendment rights.” (emphasis supplied)).

       221 Ga. App. 202, 206 (4) (470 SE2d 916) (1996) (noting that the cases cited by the defendant “were focused on the intrusion caused by the ultimate detention of the citizen and [were] not authority supporting [the defendant’s] contention” (emphasis supplied)).

        See id. (noting that defendant argued that “a police officer is required to have an articulable suspicion before he can commence pursuit or even the mere following of a citizen”).

        Id. at 207-08 (4) (quoting Brisbane, 233 Ga. at 343, for proposition that “the state can practice preventative therapy by reasonable road checks to ascertain whether man and machine meet the legislative determination of fitness” (punctuation omitted)).

        Id. at 208 (4).

        Id. (citing California v. Hodari D., 499 U. S. 621 (111 SCt 1547, 113 LE2d 690) (1991), and Michigan v. Chesternut, 486 U. S. 567 (108 SCt 1975, 100 LE2d 565) (1988)).

        Id. at 207 (4) (emphasis supplied).

        See id. (“[A]ppellee never submitted to the show of police authority until the patrol units both activated their flasher lights; at that point,... at least one or more of the officers had an articulable suspicion that appellee had committed various traffic offenses.”).

        See State v. Reddy, 236 Ga. App. 106, 108 (1) (b) (511 SE2d 530) (1999) (“The temporary detention of a motorist based upon probable cause that he violated a traffic law does not implicate the Fourth Amendment’s prohibition against unreasonable searches and seizures, even if a reasonable officer would not have made the stop absent an ulterior motive.” (punctuation omitted)). To the extent that the trial court found that LeJeune’s failure to maintain lane was caused by the officer’s act of accelerating behind him, this finding was clearly erroneous because there was no evidence to support this conclusion, as any indication of same was solely made in an unanswered question by defense counsel. See, e.g., Bradley v. State, 322 Ga. App. 541, 544 (1) (b) (745 SE2d 763) (2013) (“[CJounsel’s questions and arguments are not evidence.”). And, nevertheless, this in no way undermines the officer’s observation of a traffic violation.

        See Reddy, 236 Ga. App. at 108 (1) (b) (“[I]f the arresting officer witnessed the driver breaking even a relatively minor traffic law, a motion to suppress under the Fourth Amendment arguing that the stop was pretextual must fail.” (punctuation omitted)); see also Whren v. United States, 517 U. S. 806, 811 (II) (A) (116 SCt 1769, 135 LE2d 89) (1996).

       (Emphasis supplied.)

       (Emphasis supplied.)

        Cf. Padron v. State, 254 Ga. App. 265, 269 (1) (562 SE2d 244) (2002) (“Although the deputy admittedly had a ‘hunch’ that appears likely to have been based on ethnic profiling—a Spanish-speaking driver, originally from Cuba, and traveling southbound from Atlanta to Florida, no evidence showed the existence of a particularized and objective basis for suspecting criminal wrongdoing.”); Edwards v. State, 219 Ga. App. 239, 244 (3) (464 SE2d 851) (1995) (rejecting defendant’s argument that stop was “based on a drug courier profile” when vehicle was stopped because it displayed no tag).

        See Betancourt v. State, 322 Ga. App. 201, 208 (3) (b) (744 SE2d 419) (2013) (noting that the text of the Fourth Amendment makes no mention of “suppressing evidence obtained in violation of same,” the exclusionary rule is “a judicially created remedy,” and the rule applies only when “its remedial objectives are thought most efficaciously served” (punctuation omitted)); see also State v. Thackston, 289 Ga. 412, 413 (1) (716 SE2d 517) (2011) (“The exclusionary rule is a judicially created remedy adopted to protect Fourth Amendment rights by deterring illegal searches and seizures— Because the rule is not constitutionally mandated and because of its broad deterrent purpose, it consistently has been applied only ‘where its remedial objectives are thought most efficaciously served.’ ” (citations omitted)).


author: McFADDEN, Judge.

text:
    A14A0034.
    SMITH v. CITY OF ATLANTA.
    (759 SE2d 63)
   McFADDEN, Judge.

Javon Smith, formerly a firefighter with the City of Atlanta, filed this discretionary appeal from the superior court’s decision upholding the termination of his employment. In reaching its decision to terminate Smith’s employment, the city had departed from its written drug testing policy, and Smith argues that this departure violated his rights. But because Smith was given notice and an opportunity to be heard, he was not denied due process. Accordingly, we affirm the decision upholding his termination.

The relevant facts, which are largely undisputed, are as follows. The city required sworn employees of the Atlanta Fire Rescue Department, such as Smith, to submit to random drug testing as part of its substance abuse policy. If an employee tested positive, his or her employment was terminated.

On December 15, 2011, the employees at Smith’s fire station were selected to be tested. Smith gave a urine specimen at Caduceus Occupational Medicine. The specimen was divided between two containers. One container was sent to an independent lab for testing, and the results came back positive for marijuana metabolites. The city’s certified medical review officer, a physician, received the results and contacted Smith to ask him if any medical reason explained the positive test result; Smith gave no reason. The medical review officer offered to have the second container of urine tested at a different independent lab. That test also came back positive for marijuana metabolites, and Smith was terminated. He appealed his termination to the City of Atlanta Civil Service Board which conducted a hearing and upheld the termination. Smith filed a petition for writ of certiorari to the superior court, which denied the petition and affirmed the administrative decision. We granted his application for discretionary appeal.

We review a superior court’s decision reviewing an administrative agency’s decision to determine whether the superior court has, in its own final ruling, committed an error of law. Bd. of Regents of the Univ. System of Ga. v. Hogan, 298 Ga. App. 454 (1) (680 SE2d 518) (2009). Smith argues that the superior court erred by upholding his termination because the Fire Rescue Department’s failure to administer a rapid screening test in breach of its random drug testing policy violated his due process rights. At the time of Smith’s testing, the Fire Rescue Department’s Random Drug and Alcohol Testing Policy provided:

For a[n] employee who has an initial positive result on a drug test, a second test will be conducted. If that result is positive, the [medical review officer] will contact the person tested to discuss the results. If the person cannot verify that the results are due to a valid medical reason (for example, appropriate use of prescription medication), the [medical review officer] will offer a split specimen (a test of [a] portion of the original specimen). The employee must contact the [medical review officer] within 72 hours after to request the split specimen test; the test must be conducted within 14 days of the date the person was notified of the initial positive results.

Under this policy, two tests were administered simultaneously on the day of testing: the employee’s urine was subjected to a rapid screening test, and at the same time, a portion of the urine was sent to a laboratory for testing. If the laboratory test returned a positive result, the employee could request that a second portion of urine (the “split specimen”) be sent to a second laboratory for testing.

In spite of the written policy in place at the time of Smith’s random drug testing, he was not given the rapid screening test. Smith argues that this departure from the written policy deprived him of a check on the reliability of the test results that led to his termination. The fire chief testified, on the other hand, that he had eliminated the rapid screening test because he was concerned that it made the drug policy unfair. He elaborated that in an unrelated proceeding, a firefighter had tested negative on the rapid screening test but positive on the simultaneous laboratory test; since the rapid screening test had returned a negative result, the firefighter’s urine should not have been subjected to additional testing. While Smith argues that eliminating the rapid screening test deprived him of a chance to pass a test, the fire chief maintained that eliminating that test meant that employees had one less chance to fail. He confirmed that at the time of Smith’s testing, the written policy was in the process of being revised to reflect the new practice.

It is not for us to decide whether the better practice is to include or eliminate the rapid screening test. Our decision turns on due process. In order to satisfy due process, a public employee with a property interest in continued employment must be given notice and an opportunity to be heard before he may be deprived of that property interest. Camden County v. Haddock, 271 Ga. 664, 666 (1) (523 SE2d 291) (1999). The parties do not dispute that Smith had a property interest in his job and was entitled to due process. The issue, therefore, is whether he was given adequate notice and an adequate opportunity to be heard to satisfy due process.

First we conclude that because the new random drug testing policy had not yet been finalized or distributed to employees, the former, written policy was effective at the time of Smith’s drug test. See Haddock, 271 Ga. at 665 (1) (applying county’s 1989 personnel policy because there was no evidence that county had distributed copies of its 1994 policy to county employees). And it is undisputed that Smith was not given the rapid screening test, which previously had been given in accordance with the written policy. But an employer’s violation of an internal policy does not necessarily amount to a due process violation:

[T]he adequacy of due process is governed not by personnel manuals [or internal policies] but by case law interpreting the federal and state constitutions, which only require that the employee (even if later) be notified and given an opportunity to be heard. As long as the requirements of due process are met, the employer’s failure to follow all the requirements in the manual [or policy] does not [constitute a denial of due process].

Bd. of Regents, 298 Ga. App. at 457 (1) (citation and punctuation omitted). See also Mangels v. Pena, 789 F2d 836, 838 (10th Cir. 1986) (“A failure to comply with state or local procedural requirements does not necessarily constitute a denial of due process; the alleged violation must result in a procedure which itself falls short of standards derived from the Due Process Clause.”); Bowens v. North Carolina Dept. of Human Resources, 710 F2d 1015, 1019 (III) (4th Cir. 1983) (“An agency’s violation of its regulations is not unconstitutional unless the regulations are necessary to afford due process. When a property interest has been created, the due process clause, not state regulations, defines what process is constitutionally mandated.”) (citations omitted).

And here, it is undisputed that Smith was given multiple notices and opportunities to be heard. The chief medical officer contacted Smith with the positive test result and discussed with him whether any medical reason explained it. He offered to have the split specimen tested, an offer Smith accepted. Smith was given written notice of his termination and the reasons for that termination. He had a hearing before the civil service board at which he was represented by counsel and was given the opportunity to call witnesses on his own behalf and to cross-examine witnesses testifying against him. Finally, Smith pursued certiorari in the superior court. Because Smith was afforded the opportunity to dispute his test results and consequent termination, the failure to give him a rapid screening drug test did not deny him due process. See Men of Color Helping All Society, Inc. v. City of Buffalo, 529 Fed. Appx. 20, 24 (2d Cir. 2013) (holding that even if city violated procedures in its drug testing policy, firefighters were not denied due process because they could dispute the fairness and accuracy of their test results and consequent terminations during pre-termination hearing, grievance process, and in state court).

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.

Decided May 21, 2014.

Jennifer L. Knight, for appellant.

Amber A. Robinson, Kristen B. Denius, William A. Castings, Jr., for appellee.


text:
    A14A0111.
    TOLBERT v. THE STATE.
    (759 SE2d 65)
   McFadden, Judge.

After a jury trial, William Tolbert was convicted of aggravated assault on a peace officer and two counts of obstruction of an officer. Tolbert appeals, challenging the sufficiency of the evidence. But because there is enough evidence from which a rational trier of fact could have found Tolbert guilty beyond a reasonable doubt, we affirm.

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. 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.

Brown v. State, 318 Ga. App. 334, 334-335 (733 SE2d 863) (2012) (citations and punctuation omitted).

So viewed, the evidence shows that on the afternoon of July 12, 2011, police officers Sanders and Miller were on patrol in separate vehicles in Macon, Georgia, when they both saw Tolbert fail to stop the car that he was driving at a stop sign. Officer Sanders activated his patrol vehicle’s lights and siren and tried to pull over Tolbert. But Tolbert failed to pull over, and instead accelerated his vehicle, made an abrupt turn onto a street and pulled into an apartment complex parking lot where he got out of his car. Officer Sanders stopped beside the car and was concerned for his safety because of Tolbert’s flight and his getting out of his car; because the officer had to approach from the front of Tolbert’s car, where he could get run over; and because he did not know if Tolbert or a passenger in the car had a weapon. Officer Sanders then drew his gun, told Tolbert to get back into his vehicle, and ordered the passenger in the car to keep his hands in full view on the dashboard. The passenger obeyed, but Tolbert did not and refused to get back into his car. Upon seeing that Tolbert did not have a weapon, the officer put his gun back in its holster, approached Tolbert and tried to take him into custody for obstruction by fleeing. But Tolbert then punched Officer Sanders in the face, and a physical altercation ensued. During the struggle, Tolbert refused to comply with the officer’s commands to stop resisting and to put his hands behind his back, ripped the officer’s shirt, and attempted to grab the officer’s gun from its holster. As they struggled for the gun, Tolbert struck the officer and then fled on foot into the nearby woods. Officer Sanders notified other officers by radio that Tolbert had fled into the woods, and then chased after him.

Officer Miller arrived at the scene and entered the woods, where he found Tolbert hiding in some brush. The officer ordered Tolbert to stay on the ground and show his hands, but Tolbert disobeyed, saying, “shoot me,” and running further into the woods. Officer Miller chased after and caught Tolbert, who struck the officer in the face, and grabbed and scratched his neck and arms. Officer Miller then used pepper spray to subdue Tolbert and was able to take him into custody.

In challenging the sufficiency of the evidence, Tolbert cites his own testimony that was in conflict with the officers’ testimony and argues that he was entitled to resist arrest when Officer Sanders used unreasonable force by drawing his gun. However, any conflicts in the evidence are

of no consequence on appeal because we do not speculate as to which evidence the jury chose to believe. Instead, the credibility of witnesses and the weight to be given their testimony are questions for the trier of fact, and we do not determine or question how the jury resolved any conflicts in the evidence.

Glenn v. State, 269 Ga. App. 412, 415 (604 SE2d 255) (2004) (citations and punctuation omitted). Here, Tolbert’s argument “ignores the officer’s testimony that [Tolbert’s] conduct caused him to be concerned for his own safety.” Zeger v. State, 306 Ga. App. 474, 476 (1) (702 SE2d 474) (2010). And once the officer determined that Tolbert was not armed, he re-holstered his gun and attempted to arrest Tolbert. Thus, the jury was authorized to reject Tolbert’s claim that he was entitled to resist arrest. Having reviewed the evidence in the light most favorable to the verdict, we conclude that there was sufficient evidence from which the jury could have found Tolbert guilty beyond a reasonable doubt of the crimes charged.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.

Decided May 21, 2014.

G. B. Moore III, for appellant.

K. David Cooke, Jr., District Attorney, Dorothy V. Hull, Assistant District Attorney, for appellee.


author: Branch, Judge.

text:
    A14A0279.
    ROYALS v. THE STATE.
    (761 SE2d 357)
   Branch, Judge.

Teresa Louise Royals pled guilty to a single count of possession of methamphetamine and was sentenced to twenty-five years, with the first ten years to be served in incarceration and the balance to be served on probation. The court suspended Royals’s prison sentence, however, on the condition that she enter and complete a residential substance abuse treatment program. After her suspended sentence was revoked, Royals filed a pro se motion seeking a reduction or modification of her sentence and asserting that the sentence imposed by the trial court was void. Although Royals requested a hearing on her motion, the trial court denied the motion without a hearing. Royals now appeals from that order, arguing that the sentence imposed by the trial court is illegal, and that the trial court abused its discretion by refusing to treat her motion as one to withdraw her guilty plea and by failing to hold a hearing on that motion. Finding that the sentence imposed by the trial court is illegal and therefore void, we reverse the order denying Royals’s motion to reduce or modify her sentence and remand the case for proceedings consistent with this opinion.

The relevant facts are undisputed. The record shows that Royals was indicted in October 2011 on charges of manufacturing methamphetamine (Count 1), possession of methamphetamine (Count 2), and possession of a schedule IV controlled substance (Count 3). Royals subsequently entered a plea agreement under which the State agreed to nolle prosse Counts 1 and 3 of the indictment in exchange for Royals entering a guilty plea on Count 2. Royals entered this plea in open court in December 2012, at which time she was sentenced. In January 2013, the trial court revoked the suspended portion of Royals’s sentence after she was dismissed from her drug treatment program without having successfully completed the same. Royals then filed her pro se motion seeking a reduction or modification of her sentence. She now appeals from the denial of that motion.

1. A criminal sentence is void “if it imposes a period of confinement or fine greater than the statutory maximum for the offense.” Ray v. State, 317 Ga. App. 197, 198 (729 SE2d 610) (2012) (citations omitted). At the time Royals engaged in and was indicted for possession of methamphetamine, Georgia law provided that any person convicted of possessing methamphetamine “shall be punished by imprisonment for not less than two years nor more than 15 years.” OCGA § 16-13-30 (c) (2011). Accordingly, because the 25-year sentence imposed by the trial court exceeds the statutory maximum, that sentence is void, and the trial court erred in denying Royals’s motion for a modification of that sentence.

2. In her motion, Royals argued that she was innocent of the methamphetamine charge, as demonstrated by the testimony of her co-defendant (who is also her husband), offered at the co-defendant’s plea hearing. On appeal, Royals argues that because her motion was filed within the same term of court in which she entered her guilty plea and because her motion raised a claim as to her innocence, the trial court abused its discretion by refusing to treat that pleading as a motion to withdraw Royals’s guilty plea. See Matthews v. State, 295 Ga. App. 752, 754 (1) (673 SE2d 113) (2009) (a motion to withdraw a guilty plea must be made during the same term of court in which the defendant was sentenced); Lawson v. State, 204 Ga. App. 796 (1) (420 SE2d 600) (1992) (where defendant files a motion for a new trial within the same term of court in which defendant entered his guilty plea, a court has the discretion to treat that pleading as a motion by defendant to withdraw his guilty plea). She further asserts that because her motion sought to withdraw her guilty plea, the trial court abused its discretion in failing to hold a hearing on that motion. See Schlau v. State, 261 Ga. App. 303, 304 (1) (582 SE2d 243) (2003) (before ruling on a defendant’s motion to withdraw his guilty plea, the trial court should hold a hearing and exercise its discretion based upon the evidence produced during that hearing).

Decided May 21, 2014.

Lorie L. Williams-Smith, for appellant.

Richard L. Perryman III, District Attorney, Robert A. Rogers, Patrick Warren, Assistant District Attorneys, for appellee.

The pro se motion filed by Royals was captioned “Motion for Reduction or Modification of Sentence.” Moreover, in that motion Royals neither raised nor argued the question of whether she should be allowed to withdraw her guilty plea. Accordingly, we find no abuse of discretion by the trial court in failing to treat Royals’s pleading as a motion to withdraw her guilty plea. We note, however, that on remand Royals may seek to withdraw her plea even though the term of court in which she originally entered that plea has expired. As we have explained before,

a defendant has an absolute right to withdraw [her] plea before sentence is pronounced. [Because] a void sentence is the same as no sentence at all, the defendant stands in the position as if [she] had pled guilty and not been sentenced, and so may withdraw [her] guilty plea as of right before resentencing, even following the expiration of the term of court in which the void sentence was pronounced.

Hallford v. State, 289 Ga. App. 350, 351 (1) (657 SE2d 10) (2008) (citations and punctuation omitted). Thus, because the trial court imposed a void sentence, Royals stands in the position of having pled guilty but not yet sentenced. Franks v. State, 323 Ga. App. 813, 814 (748 SE2d 291) (2013). Upon remand, therefore, Royals has “the absolute right” to move to withdraw her guilty plea prior to resentencing. Id. (citation omitted).

For the reasons set forth above, the order of the trial court denying Royals’s motion to reduce or modify her sentence is reversed and the case is remanded for proceedings consistent with this opinion.

Judgment reversed and case remanded.

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

       A 2013 amendment to this statute created a sentencing scheme whereby punishment is determined by the amount of methamphetamine a defendant possesses. Under the amended statute, possession of one gram or less of methamphetamine is punishable by “imprisonment for not less than one nor more than three years,” OCGA § 16-13-30 (c) (1); possession of more than one but less than four grams of methamphetamine is punishable by “imprisonment for not less than one nor more than eight years,” OCGA § 16-13-30 (c) (2); and possession of more than four but less than 28 grams of methamphetamine is punishable by “imprisonment for not less than one nor more than 15 years,” OCGA § 16-13-30 (c) (3). See Ga. L. 2012, p. 899, § 3-7B. It is the version of the statute in effect at the time of Royals’s crime, however, that applies to her case. See Ga. L. 2012, p. 899, § 9-1 (providing that the amendments to OCGA § 16-13-30 “shall apply to offenses which occur on or after July 1,2013. Any offense occurring before July 1,2013, shall be governed by the statute in effect at the time of such offensef.]”).

       It is unclear why the State opposed Royals’s motion in the trial court, as on appeal the State concedes that the sentence imposed on Royals was illegal.