author: Ray, Judge.

text:
    A15A1528.
    BARNEY v. THE STATE.
    (777 S.E.2d 490)
   Ray, Judge.

An Emanuel County jury convicted Eric LaShuwn Barney II of two counts of burglary. He appeals from the denial of his motion for new trial, arguing that the trial court committed plain error in failing to charge the jury on accomplice corroboration and in granting the State’s motion for resentencing. He also argues that the evidence was insufficient to support his convictions and that he received ineffective assistance of counsel. For the following reasons, we affirm his conviction, but vacate his sentence and remand the case to the trial court for resentencing.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Newsome v. State, 324 Ga. App. 665, 665 (751 SE2d 474) (2013). We neither weigh the evidence nor assess the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the appellant guilty of the crimes charged beyond a reasonable doubt. Byrd v. State, 325 Ga. App. 24, 24 (752 SE2d 84) (2013).

The evidence shows that on May 18, 2010, Maria Smith left her job at 2:30 p.m., ran a few errands, and then picked her sons up from school and daycare. At about 5:00 p.m., she drove to her mobile home in Summertown and remained in her truck, talking on her cell phone, while her oldest son went ahead into the mobile home. Her son ran back outside and told her that “somebody went in your house and tore up your room.” Maria Smith discovered that her air conditioning unit had been torn out of her window and several items were stolen, including jewelry and a video game system. Maria Smith then went to a cousin’s house to dial 911, and the sheriff’s office responded.

Maria Smith testified that she saw Barney, Jonathan Smith, and Travoski Harris driving together on the road to Swainsboro the day after the burglary. Maria Smith had known Barney “all [her] life” because they grew up in the same neighborhood, and she believed he might be related to her. She also knew Jonathan Smith because he is her cousin. Barney and Jonathan Smith knew where she lived. The day after the burglary, Barney called Maria Smith to tell her that he was not the person who had robbed her. Maria Smith thought this was unusual, explaining that he “ain’t never called me before.” He then called her a few more times for the same reason.

Maria Smith lives next to another of her cousins, Marcus Sherrod. Sherrod was at work on the day of the crime when Maria Smith called to inform him that her mobile home had been burglarized. Sherrod called his father and asked him to stop by his mobile home, and he later found out that it had been burglarized as well. Sherrod’s air conditioning unit had been torn out of his window, and several items had been stolen from his home, including guns and jewelry. Sherrod testified that, shortly before the burglary, Barney had called and asked him what he was doing and whether he was at work.

Investigator Davis with the Emanuel County sheriff’s office responded to the scene of the burglaries. He went to both residences, interviewed Maria Smith and Sherrod, and took photos of their respective homes. Both Maria Smith and Sherrod mentioned that they thought Jonathan Smith might have been involved in the burglaries. The next day, Deputy Kersey initiated a traffic stop on a vehicle driven by Jonathan Smith. Harris was also in the vehicle, as were tools that could have heen used in the commission of the burglaries. When Jonathan Smith was later interviewed by Investigator Davis, he made statements that he, Harris, and Barney were involved in the burglaries. He stated that Barney pushed in both air conditioning units and did not split the stolen items as agreed.

Jonathan Smith also testified at trial that he, Harris, and Barney were responsible for the burglaries. He testified that he rode with Barney and Harris to a wooded area behind the two mobile homes. They approached Sherrod’s mobile home first. Jonathan Smith pushed in the window air conditioning unit to enter the trailer and unlock the door for Barney. The two then stole guns from the mobile home. The men then went to Smith’s trailer, where they again pushed in the window air conditioning unit to enter the home and stole jewelry and a video game system. On cross-examination, Jonathan Smith stated that he did not remember telling the interviewing detectives that Barney had pushed in the air conditioning units. He explained that Barney had helped him push in the air conditioner at Maria Smith’s residence.

Harris also testified at trial. When asked about the details of the crimes, Harris was reluctant to answer, stating “I am not in the mindset of going through this. I can’t do this I don’t remember the stuff. ... I mean this is based on two years ago.” When asked to confirm that he had earlier pled guilty to the two burglaries without a plea recommendation, Harris stated “I guess so. I don’t want to lie because I don’t want to be charged for perjury. ... I have lied under oath before____I’m scared. I don’t want to be charged with no perjury just because I lied, because I don’t want to go through that.” When pressed about earlier statements he made to the police and testimony made in earlier trials, Harris avoided the questions, stating, “I am putting all this behind me.” The State then received the trial court’s permission to treat Harris as a hostile witness and to ask him leading questions.

Based upon Harris’s continued nonresponsive answers, the trial court interrupted the testimony, sent the jurors out, summoned Harris’s attorney to the courtroom so that she could be present during the testimony, and instructed him that he could lose his first offender status if convicted of perjury. Harris then admitted that he had previously testified about the burglaries in an earlier court proceeding and confirmed that he, Jonathan Smith, and Barney had been involved in the burglaries of the two homes and had stolen guns, a video game console, and jewelry. He also testified, upon cross-examination, that he did not wish to change any statements made in the prior proceeding.

1. Barney argues that the trial court committed plain error by failing to sua sponte instruct the jury that corroboration is required if the only evidence of guilt is accomplice testimony under former OCGA § 24-4-8. Where, as here, no objection is made to a jury charge at trial, “appellate review for plain error is required whenever an appealing party properly asserts an error in jury instructions.” (Footnote omitted.) State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011).

Under former OCGA § 24-4-8:

The testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including . . . felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness. . . .

However, “as a rule, it is not error to fail to give a charge on corroboration of accomplices if the State relies upon other evidence apart from the accomplice’s testimony.” (Punctuation and footnote omitted.) Brown v. State, 321 Ga. App. 198, 200 (2) (739 SE2d 118) (2013). “Slight evidence of defendant’s identity and participation from an extraneous source is all that is needed to corroborate the accomplice’s testimony.” (Citation and punctuation omitted.) Lane v. State, 324 Ga. App. 303, 311 (4) (b) (750 SE2d 381) (2013).

Corroborative evidence may be circumstantial and based on the testimony of other accomplices. And it does not have to be sufficient to warrant a conviction. Rather, the corroboration, which may include the defendant’s conduct before and after the crime, need only connect and identify the defendant with the crime.

(Citation omitted.) Sims v. State, 306 Ga. App. 68, 70-71 (1) (701 SE2d 534) (2010).

Here, there was evidence to corroborate Jonathan Smith’s testimony as an accomplice. Although Harris was a reluctant witness at trial, his testimony revealed that Barney was involved with the crimes. Further, Sherrod testified that Barney called him before the burglary to ask if he was at home, and Maria Smith testified that Barney contacted her several times to let her know that he was not involved in the burglaries. She further testified that Barney was seen riding with his co-defendants the day after the burglary. See Brown, supra at 200-201 (2) (no plain error in failing to give accomplice corroboration charge when State relied on other evidence apart from accomplice’s testimony).

2. Barney next argues that the evidence was insufficient to support his convictions because the accomplice testimony was uncorroborated. However, as noted above, the accomplice testimony of Jonathan Smith was corroborated by the testimony of Harris, as well as by Barney’s calling the victims before and after the burglaries. We find no merit in this enumeration. See Crawford v. State, 294 Ga. 898, 901 (1) (757 SE2d 102) (2014) (Once the State adduces evidence which arguably corroborates the accomplice’s testimony, it is “peculiarly a matter for the jury to determine whether the evidence sufficiently corroborates the accomplice’s testimony and warrants a conviction”) (citations and punctuation omitted).

3. Barney contends that his counsel rendered ineffective assistance by failing to request a jury charge on accomplice liability and in failing to cross-examine Harris and Jonathan Smith concerning alleged favorable sentencing terms they received in exchange for testimony against him.

In order to prevail on a claim of ineffective assistance of counsel, a convicted defendant must show that counsel performed deficiently and that the deficient performance prejudiced the defendant such that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different.

(Footnote omitted.) Styles v. State, 329 Ga. App. 143, 151 (3) (764 SE2d 166) (2014). On review of the trial court’s ruling, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Punctuation and footnote omitted.) White v. State, 308 Ga. App. 38, 43 (4) (706 SE2d 570) (2011).

(a) Barney first contends that he received ineffective assistance of counsel when his counsel failed to request a jury charge on accomplice liability. He has abandoned this enumeration by failing to support it with either citations to the record or to legal authority. See Court of Appeals Rule 25 (c) (2). Even if such argument had been properly raised before this Court, however, it is without merit. At the motion for new trial hearing, Barney’s trial counsel testified that she did not request a charge for accomplice liability because “our theory was that he was not present for the burglary[.]” See Styles, supra at 151-152 (3) (a) (trial counsel did not render ineffective assistance for failing to request a jury instruction on robbery by intimidation as a lesser included offense of armed robbery when defense strategy was that defendant had nothing to do with the crime). “Decisions as to which charges will be requested generally fall within the realm of trial tactics and strategy . . . [and] [a]s a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Punctuation and footnotes omitted.) White, supra at 44 (4). As Barney has failed to show that his trial counsel’s decision was not a reasonable trial strategy, we find no merit in this enumeration.

(b) Barney next asserts that his trial counsel was ineffective for failing to cross-examine Harris and Jonathan Smith concerning alleged favorable sentencing terms they received in exchange for their testimony against him. We find no error.

At trial, both Harris and Jonathan Smith testified that they entered guilty pleas without a sentence recommendation from the State. Further, Barney presented no evidence at the motion for new trial hearing that either defendant received a favorable sentence because they agreed to cooperate with the State. Accordingly, we find that the record does not support the claim of ineffective assistance with respect to cross-examination of either Harris or Jonathan Smith. See Sears v. State, 292 Ga. 64, 72 (5) (e) (734 SE2d 345) (2012) (no ineffective assistance with respect to counsel’s cross-examination of an inmate who testified that defendant had confessed to committing the crime when defendant failed to produce any evidence that the inmate received a favorable sentence for cooperating with the State).

Further, at the motion for new trial hearing, Barney’s trial counsel testified that she elected not to cross-examine Harris and Jonathan Smith about their sentences because both had testified that they pled guilty without a recommendation from the State regarding their sentences. She further explained that she chose to focus her cross-examination on the fact that both men admitted that they had lied in the past. “Even though counsel is permitted to cross-examine thoroughly a testifying co-defendant about the terms of his plea agreement, it does not necessarily follow that counsel is ineffective for failing to do so.” (Footnote omitted.) Bonner v. State, 308 Ga. App. 827, 828 (1) (a) (709 SE2d 358) (2011). In the instant case, defense counsel’s decision not to question Harris and Jonathan Smith about their plea deals was tactical and strategic. “[Tjactical decisions provide no grounds for reversal unless they are so patently unreasonable that no competent attorney would have chosen them.” (Punctuation and footnote omitted.) Id. at 828-829 (1) (a). Here, we cannot say that trial counsel’s failure to cross-examine the two men about their pleas was unreasonable. We find no merit in this enumeration.

4. Barney argues that the trial court erred in concluding that the sentence originally imposed for the burglary convictions was void and, thus, that the trial court was without jurisdiction to grant the State’s motion for resentencing. We disagree.

At the conclusion of trial, the trial court sentenced Barney as a recidivist to ten years as to the first burglary count and twenty years on the second burglary count, with five to serve in prison consecutive to the first count and fifteen to serve on probation. Almost a year later, the trial court held a resentencing hearing where the State argued that the original sentence was illegal and void because, as a recidivist with three prior convictions, Barney should have been given the maximum sentence of 20 years without probation on each count, as required by OCGA § 17-10-7 (a) and (c). The trial court apparently agreed and resentenced Barney to 20 years to serve on each count to run concurrently with each other.

Barney argues that, under OCGA § 17-10-7 (a), the trial court had the discretion to suspend or probate any portion of Barney’s sentence and, thus, that the original sentence was not void and could not be amended. See Brown v. State, 262 Ga. App. 659, 659 (586 SE2d 343) (2003) (“[T]he inherent power of a trial court to modify, suspend, or vacate a judgment ceases at the end of the term in which it is rendered. However, the trial court may correct a sentence the law does not allow at any time”) (citation omitted).

Based upon his three prior felony convictions, Barney’s sentencing was governed by OCGA § 17-10-7 (a) and (c). OCGA § 17-10-7 (a) provides:

... [A]ny person who, after having been convicted of a felony offense in this state . . . , commits a felony punishable by confinement in a penal institution shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.

OCGA § 17-10-7 (c) provides:

. . . [A]ny person who, after having been convicted . . . for three felonies . . ., commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

This Court has held that subsections (a) and (c) of OCGA § 17-10-7 must be read together. Jefferson v. State, 309 Ga. App. 861, 864 (2) (711 SE2d 412) (2011), overruled on other grounds by Maddox v. State, 322 Ga. App. 811, 815 (1) (746 SE2d 280) (2013).

We ¿gree that the trial court’s initial sentence was void because it failed to comply with OCGA § 17-10-7 (a) and (c). Under OCGA § 17-10-7 (a), the trial court was required to impose a 20-year sentence for each burglary count, the longest sentence prescribed in the burglary statute, OCGA § 16-7-1 (b). This it did not do, as the trial court sentenced Barney merely to ten years on Count 1. Accordingly, the trial court did not err in concluding that Barney’s original sentence was void and in amending the sentence to comply with OCGA § 17-10-7 (a) and (c). See Hill v. State, 272 Ga. App. 280, 282 (612 SE2d 92) (2005) (“trial court . . . did not err in correcting [defendant’s] sentence so that it complies with OCGA § 17-10-7 (c)”).

We note, however, that although OCGA § 17-10-7 (c) “prohibits parole, it does not dispense with the trial court’s discretion to probate or suspend part of a sentence under OCGA § 17-10-7 (a).” (Citation and punctuation omitted.) Jefferson, supra. Therefore, to the extent that Barney argues that the trial court erred by failing to exercise its discretion to probate or suspend part of his sentence, if it so chooses, we agree. “Unless affirmative evidence shows otherwise, the trial court is presumed to have exercised its discretion in imposing [a] sentence.” (Punctuation and footnote omitted.) Cody v. State, 324 Ga. App. 815, 827 (5) (b) (752 SE2d 36) (2013). At the resentencing hearing, neither the trial court nor the State acknowledged that the trial court was vested with the discretion to probate or suspend a portion of Barney’s sentence. Further, the trial court agreed that it was going to impose the “least terrible [sentence] the [c] ourt can,” and sentenced Barney to 20 years without parole as to each burglary count, to be served concurrently. Thus, there is evidence that the trial court was confused as to its discretion to suspend or probate a portion of Barney’s sentence. “The trial court’s failure to exercise its discretion was error, which we cannot find harmless under these circumstances.” (Citation omitted.) Banks v. State, 225 Ga. App. 754, 757 (5) (484 SE2d 786) (1997). Compare Allen v. State, 325 Ga. App. 752, 756 (3), n. 2 (754 SE2d 795) (2014) (affirming sentence where trial court concluded that it was required to sentence defendant to maximum sentence without parole, and defendant “[did] not argue, and the record [did] not reflect, any error by the trial court with regard to its decision not to probate or suspend a portion of [the] sentence”). Accordingly, Barney’s sentence is vacated, and this case is remanded for resentencing in accordance with this opinion. The trial court has the authority to reimpose the sentence of 20 years to serve on each count, but must show on the record that it exercised its discretion in doing so. See Page v. State, 287 Ga. App. 182, 184 (3) (651 SE2d 131) (2007).

Decided September 15, 2015.

Katherine M. Mason, for appellant.

S. Hayward Altman, District Attorney, Mary K. McKinnon, Tony A. May, Assistant District Attorneys, for appellee.

Judgment of conviction affirmed, sentence vacated and case remanded for resentencing.

Barnes, P. J., concurs. McMillian, J., concurs fully in Divisions 3 and 4 and concurs in judgment only in Divisions 1 and 2.

       The provision in former OCGA § 24-4-8 has been carried forward into the new Evidence Code and renumbered as OCGA § 24-14-8. Because the new Evidence Code became effective as of January 1, 2013, however, it does not apply to this case. Accordingly, we cite to the old Code section.

       Barney had three prior felony convictions.


source: Caselaw Access Project

author: Ellington, Presiding Judge.

license: Public Domain

text:
    A15A1097.
    TALBOT CONSTRUCTION, INC. v. TRIAD DRYWALL, LLC.
    (777 S.E.2d 503)
   Ellington, Presiding Judge.

This case concerns a construction subcontract between Appellee Triad Drywall, LLC (“Triad”) and Appellant Talbot Construction, Inc. (“Talbot”). Alleging Talbot never compensated Triad for services rendered, Triad filed suit in the Superior Court of Forsyth County for breach of contract, unjust enrichment, and quantum meruit. Talbot answered without asserting a related claim against Triad for breach of contract and later sought leave to assert the omitted compulsory counterclaim by amendment. After a hearing, the trial court denied Talbot’s motion for leave to add the counterclaim. Pursuant to this Court’s grant of Talbot’s application for interlocutory review, Talbot appeals, contending Triad made no showing that it would be prejudiced by the addition of the counterclaim, and, therefore, the trial court abused its discretion in denying Talbot leave to assert the omitted compulsory counterclaim under the “when justice requires” provision of OCGA § 9-11-13 (f). For the reasons explained below, we vacate the trial court’s ruling and remand this case for reconsideration of Talbot’s motion for leave to set up its omitted counterclaim.

Talbot avers that on March 2,2011, it entered into a contract with Wal-Mart Stores, Inc. (“Wal-Mart”), whereby Talbot agreed to provide labor, equipment, and materials for a remodeling project at a WalMart store in Snellville. In consideration for Talbot’s remodeling work on the project, Wal-Mart agreed to pay Talbot $924,098. A key component of the project included the removal of old drywall and the installation of new drywall. According to Wal-Mart’s schedule, Talbot had only 60 days to complete all of the remodeling work, and it could only work during specified times when the store was closed to the public. Additionally, Talbot was required to proceed in a very specific sequence because Wal-Mart did not want the remodeling project visible to its customers or for the construction to interfere with its daily store operations.

The project was scheduled to commence on April 17, 2011. On that day or the next, Talbot’s original drywall subcontractor notified Talbot it would not be able to perform the drywall replacement as they had agreed. Talbot’s project manager contacted Triad on April 19, 2011, to discuss having Triad take over the drywall work. Talbot agreed to pay Triad $29,000 and, due to the time constraints, Triad agreed to commence work that night. Talbot sent Triad a written subcontract for the work, and Triad’s project manager executed the subcontract on April 20,2011. Triad did not return the subcontract to Talbot until after April 26, 2011, however, and did not commence the project until that day. According to Talbot, other aspects of the remodeling work, such as priming and painting, trim installation, and other interior finish work, could only proceed efficiently and in accordance with the contract requirements if Triad completed the drywall work in a timely manner, which it failed to do. Triad’s failure to perform the drywall replacement on schedule prevented Talbot from completing the overall remodeling project on time. Because the project as a whole fell behind schedule, Wal-Mart defaulted Talbot, and terminated its contract. Wal-Mart completed the unfinished work and back-charged Talbot $73,763.80 for its costs and expenses.

On January 26, 2012, Triad commenced a suit against Talbot, claiming, inter alia, that Talbot owed it $41,251 under the subcontract. Talbot answered without asserting any counterclaim against Triad. Over two years after filing its answer and defenses, Talbot filed an amended answer to Triad’s complaint and averred as an additional affirmative defense that Triad had materially breached its subcontract by failing to perform all conditions precedent to payment. In addition, Talbot contended Triad’s claims were barred or had to be reduced by a setoff of Talbot’s damages that were directly and proximately caused by Triad’s breach of its subcontract. Talbot then filed a motion for leave to set up its omitted counterclaim pursuant to OCGA § 9-11-13 (f). Talbot argued that Triad would not be prejudiced thereby and that justice required that its amendment be allowed. Triad opposed Talbot’s motion, arguing Talbot was not entitled to belatedly assert its counterclaim because it failed to exercise due diligence in asserting the counterclaim in a timely manner and it (Triad) would be prejudiced by the proposed amendment.

Under the Civil Practice Act, “[c]ompulsory counterclaims, as well as affirmative defenses, must be asserted in a defendant’s answer or responsive pleading.” (Citation omitted.) Riggio v. Lawson, 204 Ga. App. 774, 775 (1) (420 SE2d 613) (1992). See OCGA § 9-11-13 (a). Generally, the failure to plead a compulsory counterclaim bars a party from asserting that claim in a subsequent action. Kitchens v. Lowe, 139 Ga. App. 526, 527 (1) (228 SE2d 923) (1976). OCGA § 9-11-13 (f), however, allows a pleader “by leave of court” to set up a counterclaim that was omitted from its answer “through oversight, inadvertence, or excusable neglect, or when justice requires [.]” As we explained in Blount:

The courts should be very liberal in allowing amendments to include compulsory counterclaims, . . . where the pleader has not been guilty of inexcusable neglect, or has not by reprehensible conduct deprived himself of any claim to special consideration by the court. The motion should be made promptly and may be denied for laches or lack of good faith____Before a delayed filing of a counterclaim is allowed, the court should require the submission of evidence and make a finding therefrom as to whether the delay was occasioned by oversight, inadvertence or excusable neglect____It should appear, too, that the filing of the counterclaim when tendered works no prejudice against the plaintiff.

(Citations and punctuation omitted.) Blount v. Kicklighter, 125 Ga. App. 159, 161-162 (3), (4) (186 SE2d 543) (1971). Because an omitted compulsory counterclaim may be otherwise barred, “as a general rule leave to amend and set up a counterclaim shall be given freely, but this does not dispense with the necessity of showing that justice so requires.” Id. at 161 (4). “The determination of whether justice requires the grant of leave to set up an omitted counterclaim is a matter which addresses itself to the sound discretion of the trial court.” (Citation and punctuation omitted.) Boyd v. JohnGalt Holdings, LLC, 294 Ga. 640, 642 (1) (755 SE2d 675) (2014). We review the trial court’s ruling for abuse of discretion. Id.

At the hearing on Talbot’s motion for leave to file its counterclaim, the trial court stated the controlling legal principle as follows: “compulsory counterclaims may not be added by amendment where the defendant has knowledge of the claims at the time the defensive pleadings were prepared and filed.” The trial court found that Talbot did have knowledge of its counterclaim at the time it filed its answer and denied the motion for leave to amend.

Talbot contends, because the failure to plead a compulsory counterclaim can result in the loss of that claim forever, justice requires a trial court to grant a defendant leave to add a compulsory counterclaim if the plaintiff makes no showing of prejudice from the proposed amendment, citing Boyd v. JohnGalt Holdings, LLC, 294 Ga. at 641 (1). Talbot contends Triad made no such showing of prejudice in this case and contends the trial court abused its discretion in failing to allow the amendment without having first determined whether Triad would actually be prejudiced by the belated addition of Talbot’s counterclaim. Without the addition of its counterclaim to this action, Talbot contends it “will lose its counterclaim forever, and it will never have any legal remedy against Triad.”

In Boyd v. JohnGalt Holdings, LLC, the Supreme Court of Georgia emphasized that the “when justice requires” provision of OCGA § 9-11-13 (f)

furnishes an independent ground for setting up an omitted counterclaim. Thus, a trial court should grant leave to set up an omitted counterclaim when justice requires even though the other grounds, oversight, inadvertence, or excusable neglect [,] are not present.

(Citation and punctuation omitted.) Id. at 641 (1). “Moreover, because the failure to plead a compulsory counterclaim can result in loss of that counterclaim forever, the courts generally should be forgiving when leave is sought to add compulsory counterclaims, at least so long as the plaintiff makes no showing of prejudice.” (Citations omitted.) Id. at 642 (l).

In Boyd v. JohnGalt Holdings, LLC, the plaintiffs filed an action for trespass and ejectment after the defendant foreclosed their right of redemption with regard to a small parcel of commercial property, based on the plaintiffs’ default on an agreement to make specified payments to redeem the property. Id. at 640-641. Initially, the defendant timely answered, but did not then assert a counterclaim to quiet title. Id. at 641. Three years later, the defendant sought leave to add its counterclaim to quiet title by amendment, and the trial court granted leave to do so. Id. Ultimately, the trial court entered judgment that quieted title in favor of the defendant against the plaintiffs. Id. In holding the trial court did not abuse its considerable discretion when it granted the defendant leave to add its counterclaim, the Supreme Court concluded title to the property had been a central issue since the beginning of the overall case, such that the defendant’s claim to quiet title was inextricably intertwined with the plaintiffs’ claims. Id. at 642 (1). Because a quiet title claim had been implicit throughout the litigation, the plaintiffs were not surprised or unfairly prejudiced by the defendant’s late assertion of the compulsory counterclaim to quiet title, and inclusion of the claim in the pending case fostered judicial economy. Id.

Similarly, in this case, the record shows that Triad knew of the basis for Talbot’s breach of contract counterclaim, as the issue presented involves the terms and conditions of the subcontract that is the subject of Triad’s own claims and involves the same facts, transactions, and circumstances concerning Triad’s performance regarding the drywall replacement. Although Triad argues broadly it will be prejudiced if Talbot is allowed to add its counterclaim in that it may be forced at “great expense” to “depose additional witnesses and other subcontractors,” the existing record is devoid of any evidence regarding the magnitude of the expense or other hardship that Triad will face in defending against Talbot’s claim. More importantly, the record is devoid of any evidence that late assertion of the claim will cause significantly greater expense than timely assertion would have caused. Absent such a particularized showing of prejudice on the record by Triad, we cannot evaluate whether the trial court properly exercised its discretion in determining whether to grant or deny Talbot’s motion for leave to set up its omitted counterclaim or, conversely, whether the court considered the first three exceptions in OCGA § 9-11-13 (f) that justify granting leave (that is, “oversight, inadvertence, or excusable neglect”) to the exclusion of the fourth (that is, “when justice requires”). As an appellate court, we afford great deference to a trial court’s decision in this regard, but we cannot properly review a decision to deny leave to add a compulsory counterclaim where, as in this case, it appears the trial court stopped short of considering all of the provisions in OCGA § 9-11-13 (f).

For all of the foregoing reasons, the trial court’s ruling denying Talbot leave to set up its omitted compulsory counterclaim is vacated, and we remand the case for the trial court to reconsider Talbot’s motion.

Judgment vacated and case remanded.

Dillard and McFadden, JJ., concur.

Decided September 16, 2015.

Jeffrey L. Evans, for appellant.

Andrew, Merritt, Reilly & Smith, Paul E. Andrew, for appellee.

       “When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.” OCGA § 9-11-13 (f).

        Compulsory counterclaims, A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought an action upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Code section, or (3) the claim is not within the jurisdiction of the court.
      OCGA § 9-11-13 (a).

       See also Clairmont Foods v. Huddle House, 142 Ga. App. 171 (1) (235 SE2d 635) (1977) (“As we have previously pointed out in construing [OCGA § 9-11-13 (f)], the trial judge is vested with discretion which will not he controlled absent a legal abuse.”).

       See Haire v. Suburban Auto Body, 204 Ga. App. 16, 17 (2) (418 SE2d 163) (1992) (“[Tjhis court has held that compulsory counterclaims may not he added by amendment where the defendant has knowledge of the claims at the time the defensive pleadings were prepared and filed in the first instance.”) (citation omitted).

       See also Kitchens v. Lowe, 139 Ga. App. 526 (The trial court did not abuse its discretion in allowing the defendant to add its omitted compulsory counterclaim to the plaintiff’s suit on account for fertilizer, where the defendant’s claim for damages caused by allegedly defective fertilizer was a compulsory counterclaim and was so interrelated as to properly be construed together with the plaintiff’s claim and where the plaintiff was not surprised or prejudiced by the belatedly asserted counterclaim.).

        See Eudaly v. Valmet Automation, 201 Ga. App. 497, 498 (1) (411 SE2d 311) (1991) (It was “neither fair nor expeditious” and was an abuse of discretion to allow the defendant to file a late counterclaim after the time for discovery expired, while at the same time denying the plaintiff’s motion to reopen discovery as to those late counterclaims.).

       See Boyd v. JohnGalt Holdings, LLC, 294 Ga. at 642 (1) (The courts generally should be forgiving when leave is sought to add a compulsory counterclaim “at least so long as the plaintiff makes no showing of prejudice.”) (citations omitted; emphasis supplied).

        Boyd v. JohnGalt Holdings LLC, 294 Ga. at 642 (1); McKesson HBOC v. Adler, 254 Ga. App. 500, 506 (4) (562 SE2d 809) (2002) (“Whether to allow such a filing even after the requisite showing is made is within the discretion of the trial court and will not be disturbed absent abuse.”) (citation and punctuation omitted; emphasis supplied).


author: Dillard, Judge.

text:
    A15A1318, A15A1319, A15A1320.
    RAHEEM v. THE STATE (three cases).
    (777 S.E.2d 496)
   Dillard, Judge.

Haneef Abdul Raheem, formerly known as Reno Ray Jones, entered guilty pleas to various criminal offenses in 1981, 1982, and 1985. Approximately 30 years later, Raheem filed a pro se motion for an out-of-time appeal from each of his convictions, and the trial court denied the motion. In three separate appeals, Raheem argues that he is entitled to an out-of-time appeal from each conviction because his guilty pleas were invalid and his trial counsel failed to inform him of his right to appeal. For the reasons set forth infra, we affirm in part, reverse in part, and remand the case for further proceedings consistent with this opinion.

The facts underlying this appeal are largely undisputed. In 1981, Raheem pleaded guilty to motor-vehicle theft and hit-and-run. The next year, he pleaded guilty to burglary, and in 1985, to armed robbery. Decades later, in 2013, Raheem filed a pro se motion for an out-of-time appeal from all of these convictions, arguing that his guilty pleas were involuntary because, in each plea proceeding, he was not advised of his right to a jury trial, his right to confront the witnesses against him, or his right against self-incrimination. Raheem further argued that the essential elements of each of his offenses were not explained to him prior to entering his guilty pleas. As a result, Raheem contends that he is entitled to an out-of-time appeal from each conviction because his guilty pleas were not knowing and voluntary and neither the trial court nor his trial counsel advised him of his limited appellate rights.

The State moved to dismiss Raheem’s motion, arguing that, as to at least two of his cases, the plea transcripts show that his guilty pleas were indeed freely and voluntarily entered. The trial court denied the State’s motion, noting that there were no transcripts of any of Raheem’s plea hearings. Raheem then amended his motion for an out-of-time appeal, reiterating the arguments he made in his original motion and asserting that his failure to file a timely appeal in each case was due to ineffective assistance of counsel, rather than any fault of his own. Thereafter, Raheem was appointed counsel to represent him at the hearing on his motion.

After the hearing, at which Raheem and his counsel from the 1982 burglary case testified, the trial court denied Raheem’s motion for an out-of-time appeal. The court first found that, in the 1981 and 1982 cases, Raheem had established a legitimate issue for appeal because there was no evidence that, during the plea proceedings, he was informed of his right to confront his accusers or his right against compulsory self-incrimination. But as to the 1985 case, the court found that it was apparent from the record that Raheem’s guilty plea was knowing and voluntary. Regardless, the court found that Raheem was not entitled to an out-of-time appeal from any of his convictions because he had not shown that he was prejudiced. Specifically, the court found that there was no evidence that the result of the proceedings would have been different if Raheem had taken his case to trial rather than pleading guilty. This appeal follows.

We begin by noting that a trial court’s denial of an out-of-time appeal is reviewed for an abuse of discretion. And it is well established that “[a] criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea.” To the contrary, an appeal will lie from a judgment entered on a guilty plea only if “the issue on appeal can be resolved by facts appearing in the record.” But if we determine that the state of the record is such that the criminal defendant had the right to file a direct appeal from his guilty plea, we will then consider whether “the record, nevertheless, shows that those issues must be resolved against him.” If the record evidence is such that the issues in question cannot be resolved dispositively against the criminal defendant, we must then consider whether “the defendant’s right to appeal was frustrated by the ineffective assistance of counsel.” And as with any case involving claims of ineffective assistance of counsel, a criminal defendant must meet the now familiar standard set forth in Strickland v. Washington, and “show both that his trial counsel provided deficient performance, and that but for such deficiency, there is a reasonable probability that the outcome of the proceeding would have been different, which in the present context means that an appeal would have been successful.” With these guiding principles in mind, we turn now to Raheem’s specific claims of error.

Case Nos. A15A1318 and A1SA1319

1. Raheem argues that the trial court erred in denying his motion for an out-of-time appeal from his 1981 and 1982 convictions because he was not informed of certain constitutional rights required under Boykin v. Alabama before pleading guilty and because his trial counsel was ineffective for failing to inform him of his limited right to appeal. Like the trial court, we agree with Raheem that, during the plea proceedings in these cases, he was not advised of all of his “Boykin rights.” And for the reasons set forth below, we reverse the trial court’s denial of Raheem’s motion for an out-of-time appeal from his 1981 and 1982 convictions and remand the case for further proceedings consistent with this opinion.

It is well established that, to properly form the basis for a judgment of conviction, a guilty plea must be “voluntary, knowing, and intelligent.” And under the Supreme Court of the United States’s decision in Boykin, a defendant entering a guilty plea must be specifically advised of three federal constitutional rights: “the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers.”

Here, the record shows that during his 1981 and 1982 plea proceedings, Raheem was advised of only one of the three Boykin rights. And as previously noted, while there is no actual transcript of his plea proceedings in those cases, there were documents, each entitled “transcript,” that reflected Raheem’s answers to questions he was asked in open court. Both transcripts, which were nearly identical, reflected that Raheem was informed of his right to a jury trial, but not of his right against compulsory self-incrimination or his right to confront his accusers. Thus, as to these two cases, the record shows a valid issue for appeal that cannot be resolved dispositively against Raheem.

Given the foregoing, we will next consider whether Raheem’s right to appeal was frustrated by ineffective assistance of counsel. In this respect, the Supreme Court of Georgia has explained that “[w]ith regard to an out-of-time appeal, the only relevant effectiveness factor is whether the defendant had a possible ground for appeal about which his lawyer failed to inform him.” Indeed, the right to appeal is violated when the appointed lawyer “deliberately forgoes the direct appeal without first obtaining his client’s consent [and] [s]uch action constitutes ineffectiveness.” However, when a convicted party by his own conduct or in concert with his counsel has slept on his rights, he “forfeits his right to appeal.”

In the case sub judice, Raheem testified that he was not informed of his limited right to appeal his convictions in any of his plea proceedings, and the only other witness at the hearing was his attorney from the 1982 burglary case. In relevant part, Raheem’s former counsel testified that, although he had no recollection of Raheem’s specific case, it was not his general practice in 1982 to advise clients of their right to appeal during plea discussions. Counsel further explained that, during this “era,” the right to appeal after a guilty plea would not have been discussed because such appeals “never occurred.” Instead, if one of his clients was dissatisfied with a guilty plea, he would advise the client to file a motion to withdraw the plea or seek habeas-corpus relief.

Despite the foregoing, the trial court made no findings with regard to whether Raheem’s failure to file a timely appeal from his 1981 or 1982 convictions was his own fault or solely the result of his counsel’s failure to advise him of his right to appeal. Instead, the court found that Raheem was not prejudiced because there was no evidence that the outcome of the proceedings would have been different if he had proceeded to trial rather than pleading guilty. But as our Supreme Court has explained, a showing of prejudice in this context requires a defendant to show that there is a reasonable probability that, but for counsel’s deficient performance, the appeal would have been successful. And this makes perfect sense because it would be impossible for a trial court to determine the likely outcome of a trial that never occurred or to evaluate evidence that was never presented.

Thus, the trial court erred in denying Raheem’s motion for an out-of-time appeal from his 1981 and 1982 convictions “without resolving the determinative issue of whether the failure to pursue a timely direct appeal was attributable to trial counsel or to [Raheem] himself.” Accordingly, we reverse the trial court’s denial of Raheem’s motion to file an out-of-time appeal as to those convictions, and we remand the case with direction that the court conduct the requisite inquiry and make findings regarding who ultimately bore the responsibility for Raheem’s failure to file a timely appeal.

Case No. A15A1320

2. As to his 1985 armed-robbery conviction, Raheem argues that the trial court erred in denying his motion for an out-of-time appeal because he was not informed of the specific elements of the offense during his plea proceedings. He also asserts that his trial counsel was ineffective for failing to inform him of his appellate rights. We disagree.

Raheem does not maintain that he was unaware that he was pleading guilty to armed robbery, but he argues instead that his plea was involuntary because he was not advised of each element of the offense. In this regard, the Supreme Court of the United States has held that “because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.” But in applying this principle, Georgia courts have consistently held that “the law does not require the trial court to personally inform the accused of the elements of the crime to which he is pleading guilty.” Instead, when the defendant has legal representation, “a presumption arises that defense counsel routinely explained the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.”

Here, as with Raheem’s prior guilty pleas, the record included a written questionnaire, entitled “transcript,” that documented Raheem’s answers to various questions regarding his guilty plea. But unlike the prior transcripts, the 1985 transcript shows that Raheem was indeed advised of all three Boykin rights. The transcript also reflects that Raheem confirmed that his attorney had “explained the charges” against him and that they had discussed the case “thoroughly.” Moreover, the trial court in the plea proceeding certified that Raheem made these representations in open court and that he had been fully advised of the charges against him. Under these particular circumstances, we may presume that, in thoroughly explaining the charged offense, Raheem’s counsel advised him of the nature of his offense in sufficient detail to render his plea knowing and voluntary.

Thus, even if Raheem could show that his failure to file a timely appeal was due to his trial counsel’s failure to advise him of his appellate rights, “such a failure would not amount to ineffective assistance of counsel because it is apparent from the [record] that the issue [ ] he now seeks to raise in an out-of-time appeal [is] completely without merit.” Indeed, an attorney’s failure to file an appeal frivolously attacking the indisputable facts proved by the record cannot be deemed ineffectiveness. Therefore, the trial court did not err in denying Raheem’s motion for an out-of-time appeal as to his 1985 armed-robbery conviction.

For all of the foregoing reasons, in Case No. A15A1320, we affirm the trial court’s denial of Raheem’s motion for an out-of-time appeal. But in Case Nos. A15A1318 and A15A1319, we reverse the trial court’s denial of Raheem’s motion for an out-of-time appeal, and we remand the case with direction that the trial court conduct the requisite inquiries and make the necessary findings regarding who ultimately bore the responsibility for Raheem’s failure to file timely appeals in those proceedings.

Judgment affirmed in Case No. A15A1320. Judgments reversed and cases remanded with direction in Case Nos. A1SA1318 and A15A1319.

Ellington, P. J., and McFadden, J., concur.

Decided September 16, 2015.

Gerard B. Kleinrock, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

       Raheem filed a single motion for an out-of-time appeal from all three convictions, and the trial court denied it in one order. Nevertheless, Raheem filed three notices of appeal from that judgment (one as to each underlying criminal case), and the appeals were docketed separately. Case No. A15A1318 involves Raheem’s 1982 conviction for burglary; Case No. A15A1319 relates to his 1981 convictions for motor-vehicle theft and hit-and-run; and Case No. A15A1320 relates to his 1985 conviction for armed robbery. Because the parties to these appeals are the same and the issues to be resolved are closely related, we have consolidated them for review.

       Raheem also argues that the trial court correctly denied the State’s motion to dismiss his request for an out-of-time appeal. However, this argument does not present a claim of error for this Court to review, and regardless, the trial court’s order denying the State’s motion to dismiss is not the subject of this consolidated appeal. Notably, as to this enumeration of error, Raheem responds to an argument that the State made before the trial court but does not make on appeal. Specifically, the State argued below that Raheem’s motion for an out-of-time appeal is moot because he has completed his sentence for each offense and has not identified any adverse collateral consequences of his convictions. In cases involving misdemeanor offenses, Georgia courts have declined to reach the merits of an appeal when there was no evidence of adverse collateral consequences stemming from the conviction. See, e.g.,Miller v. State, 288 Ga. 153, 154 (702 SE2d 137) (2010); Ritchie v. State, 257 Ga. App. 149, 150 (570 SE2d 435) (2002). But our Supreme Court has explained that “[t]o require a petitioner to allege adverse collateral consequences of a felony conviction is in effect requiring him to do a useless act.” Atkins v. Hopper, 234 Ga. 330, 333 (2) (216 SE2d 89) (1975) (emphasis supplied); see also Turner v. State, 284 Ga. 494, 496-97 (1) (668 SE2d 692) (2008) (holding that Atkins did not relieve a habeas petitioner of his burden of showing adverse collateral consequences because he sought to challenge a misdemeanor offense, not a felony), overruled on other grounds by Nazario v. State, 293 Ga. 480 (746 SE2d 109) (2013). Thus, because Raheem seeks to appeal from felony convictions, he is not required to identify specific adverse collateral consequences to be entitled to a direct appeal.

       Although there are no actual transcripts of Raheem’s plea hearings, the record includes, as to each plea proceeding, a document entitled “Transcript,” which reflects Raheem’s responses to various questions regarding his decision to plead guilty. As to each “transcript,” the trial court in the underlying plea proceeding certified that the document reflected the questions that Raheem was asked during the plea hearing and his answers. For ease of reference, these documents are referred to in this opinion as transcripts.

       The record here indicates that Raheem’s convictions have not been the subject of a direct appeal. See English v. State, 307 Ga. App. 544, 545, n. 4 (705 SE2d 667) (2010) (‘‘The denial of a motion for an out-of-time appeal is directly appealable when the criminal conviction at issue has not been the subject of direct appeal.”).

        See Lewis v. State, 293 Ga. 544, 545 (748 SE2d 414) (2013).

        Green v. State, 291 Ga. 506, 506 (1) (731 SE2d 357) (2012) (punctuation omitted); accord Barlow v. State, 282 Ga. 232, 233 (647 SE2d 46) (2007).

         Green, 291 Ga. at 506 (1) (punctuation omitted); accord Barlow, 282 Ga. at 233.

        English, 307 Ga. App. at 546 (1) (punctuation omitted); accord Moore v. State, 285 Ga. 855, 856 (1) (684 SE2d 605) (2009).

        English, 307 Ga. App. at 546 (1) (punctuation omitted); accord Fleming v. State, 21 & Ga. App. 491, 491-92(1) (623 SE2d 696) (2005); see also Moore v. State, 304 Ga. App. 105, 105-06 (695 SE2d 661) (2010) (“An out-of-time appeal is available only when an appellant can show first, that he actually had a right to file a timely direct appeal; and second, that the right to appeal was frustratedhy the ineffective assistance of counsel. A defendant who pleads guilty to a crime has no unqualified right to a direct appeal.”).

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

        Coulter v. State, 295 Ga. 699, 701 (1) (763 SE2d 713) (2014).

       395 U. S. 238 (89 SCt 1709, 23 LE2d 274) (1969).

       The parties debate whether the Supreme Court of Georgia’s recent ruling in Lejeune v. McLaughlin, 296 Ga. 291 (766 SE2d 803) (2014), a habeas case, shifts the burden to the defendant in a direct appeal to prove that his guilty plea was not knowing and voluntary, rather than requiring the State to prove otherwise. But there is nothing in Lejeune remotely suggesting that the State no longer has the burden of demonstrating, in the context of a direct appeal from a judgment of conviction, that a defendant’s guilty plea was voluntary, knowing, and intelligent. See id. at 295 (2) (noting that the Supreme Court of the United States held in Boykin that “the United States Constitution requires the State to bear the burden of showing on direct review that a plea was voluntary, knowing, and intelligent”). And here, Raheem has moved for an out-of-time direct appeal from his convictions, rather than pursuing a post-conviction collateral attack.

        Lejeune, 296 Ga. at 291 (1); see also Hicks v. State, 281 Ga. 836, 837 (642 SE2d 31) (2007) (“With a few limited exceptions, a plea of guilty generally waives all defenses except that based on the knowing and voluntary nature of the plea.” (punctuation omitted)).

        Foster v. State, 319 Ga. App. 815, 816 (2) (738 SE2d 651) (2013); accord Childs v. State, 311 Ga. App. 891, 891 (1) (717 SE2d 509) (2011); see also Boykin, 395 U. S. at 243.

       Raheem’s counsel in the 1982 burglary case testified that “the Boykin rights weren’t specifically considered at that time because the court system was unaware of it or didn’t use the Boykin case in the[ ] plea process.”

        See English, 307 Ga. App. at 546 (1); Fleming, 276 Ga. App. at 491-92 (1).

        Barlow, 282 Ga. at 234; see Carter v. Johnson, 278 Ga. 202, 205 (2) (599 SE2d 170) (2004) (“In Georgia, an out-of-time appeal is the remedy for a frustrated right of appeal, where the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights.” (punctuation omitted)); Floyd v. State, 279 Ga. App. 21, 23 (630 SE2d 168) (2006) (noting that “the defendant’s right to effective assistance of counsel includes the right to be informed of the right to appeal”).

        Harrell v. State, 257 Ga. App. 525, 525 (571 SE2d 502) (2002); accord Butts v. State, 244 Ga. App. 366, 367 (536 SE2d 154) (2000).

        Barnes v. State, 243 Ga. App. 703, 704 (534 SE2d 440) (2000); see also Simmons v. State, 276 Ga. 525, 526 (579 SE2d 735) (2003) (“If there is evidence sufficient to authorize a finding that the movant’s conduct caused the loss of the right to direct appeal, the movant is not entitled to an out-of-time appeal.”).

        See Jackson v. State, 280 Ga. 27, 28 (622 SE2d 356) (2005) (noting that defendant’s allegation that he was deprived of his right to a direct appeal because his counsel was ineffective “requires that a trial court... determine whether the failure to pursue a timely direct appeal was attributable to [the defendant] himself or his then legal representative” (punctuation omitted)); Hudson v. State, 278 Ga. 409, 410 (1) (603 SE2d 242) (2004) (holding that the trial court erred in denying a motion for an out-of-time appeal when the court focused on the timing of the defendant’s effort to seek an out-of-time appeal, “rather than resolving the determinative issue of whether the initial failure to pursue a timely direct appeal was attributable to trial counsel or to the defendant himself” (emphasis supplied)); Barnes, 243 Ga. App. at 704-05 (noting that “[a]n out-of-time appeal will not be authorized if the delay was attributable to the conduct or actions of [the defendant], either alone or in concert with counsel”).

        See Coulter, 295 Ga. at 701 (1); Stephens v. State, 291 Ga. 837, 838-39 (2) (733 SE2d 266) (2012).

        Nesbitt v. State, 295 Ga. App. 394, 396 (671 SE2d 877) (2008); see supra note 21.

        See Jackson, 280 Ga. at 28 (holding that the trial court abused its discretion in denying a motion for an out-of-time appeal when it failed to make a factual inquiry regarding whether the defendant’s failure to file a timely appeal was attributable to the defendant himself or his then legal representative, and remanding the case for the trial court to make such an inquiry); Hudson, 278 Ga. at 410 (1) (reversing a trial court’s denial of a motion for an out-of-time appeal and remanding “with direction that the trial court conduct the requisite inquiry as to who ultimately bore the responsibility for the failure to file a timely appeal” (punctuation omitted)); Nesbitt, 295 Ga. App. at 396 (same); Fleming, 276 Ga. App. at 494 (1); see also Barnes, 243 Ga. App. at 704-05 (vacating a trial court’s dismissal of a defendant’s motion for an out-of-time appeal when it was unclear from the record whether the trial court conducted an inquiry regarding who bore the responsibility for the defendant’s failure to file a timely appeal, and noting that an out-of-time appeal is not authorized if the delay was attributable to the conduct of the defendant, either alone or in concert with counsel).

        Boykin, 395 U. S. at 243, n. 5; see Gaddy v. Linahan, 780 F2d 935, 944 (II) (A) (11th Cir. 1986) (“[F]or a plea to be knowing and voluntary, the defendant must be informed of the elements of the offense either at the plea hearing or on some prior occasion, and he must understand them.”).

        Mock v. State, 218 Ga. App. 514, 517 (2) (462 SE2d 429) (1995); accord Thompson v. State, 240 Ga. App. 539, 539 (1) (b) (524 SE2d 239) (1999); Clark v. State, 186 Ga. App. 106, 107 (1) (366 SE2d 361) (1988); see also Gaddy, 780 F2d at 944 (II) (A) (noting that due process does not require a defendant to be informed of each element of the offense at the plea hearing and that “[m]ost commonly, his attorney provides such information”).

        Clark v. State, 299 Ga. App. 558, 560 (683 SE2d 93) (2009) (punctuation omitted); accord Tomlin v. State, 295 Ga. App. 369, 372 (2) (671 SE2d 865) (2008); Thompson, 240 Ga. App. at 539-40 (1) (b).

        See Clark, 299 Ga. App. at 560 (presuming that the defendant’s counsel adequately explained the nature of the offense in sufficient detail when the defendant indicated that he understood the charges against him and that his counsel adequately assisted him in his decision to plead guilty); Tomlin, 295 Ga. App. at 371-72 (2) (holding that a defendant’s guilty plea was knowing and voluntary when, although the plea statement signed by the defendant did not list the elements of the charged offense, the defendant acknowledged that he had discussed the nature of the charged offense with his counsel); Thompson, 240 Ga. App. at 540 (1) (b) (holding that, when the defendant acknowledged that his attorney had explained the nature of the charges to him, the trial court was not required to explain the elements of his offenses in the plea colloquy).

        Clark, 299 Ga. App. at 560 (punctuation omitted); accord Hicks, 281 Ga. at 838; see Dennis v. State, 292 Ga. 303, 303 (736 SE2d 428) (2013) (noting that it is proper to deny arequest for out-of-time appeal if examination of the record reveals no merit to the claimed errors); Moore, 285 Ga. at 858 (1) (holding that a defendant was not entitled to an out-of-time appeal when the record showed that his challenge to the voluntariness of his plea would be resolved against him).

        See Clark, 299 Ga. App. at 560; accord Hicks, 281 Ga. at 838.

        See supra notes 28 and 29.


author: BARNES, Presiding Judge.

text:
    A15A1343.
    CAMPBELL v. THE STATE.
    (777 S.E.2d 507)
   BARNES, Presiding Judge.

A jury found Henry Leroy Campbell III guilty of riot in a penal institution, mutiny in a penal institution, and five counts of obstruction of a law enforcement officer. Following the denial of his motion for new trial, Campbell appeals, contending that the trial court abused its discretion and denied him a fair trial by requiring him to wear an electronic security device during the trial. Upon our review, we affirm.

On appeal, we review the evidence in the light most favorable to the jury’s verdict, and Campbell no longer enjoys a presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. Id.

So viewed, the evidence shows that a deputy sheriff working at the county jail was dispensing medication in Cell Block A when Campbell, an inmate, approached him. Campbell asked the deputy for his name and badge number and said the jailers were holding him against his will. The deputy asked him some questions to see if he could help him, but Campbell kept saying the same thing over and over. The deputy eventually said he would check on things for Campbell and tried to shut the cell block door, but Campbell stuck his foot in the door and said he was not done talking.

The deputy eventually secured the door and began to move on, but realized that Campbell was still agitated and was concerned that new employees at the jail might encounter difficulty handling Campbell if he tried to exit the cell block. The deputy thus returned to Campbell’s cell block, intending to “defuse and secure him somewhere else and give him time to cool off a little bit.” Campbell, who was sitting at a table holding a pencil, refused the deputy’s instructions to step outside the cell block, where the deputy had intended to handcuff him, so the deputy entered the block instead. Because Campbell was getting louder and more belligerent, the deputy tried to place the handcuffs on him so he would not hurt anyone.

Still holding the pencil, Campbell balled up his fists when the deputy tried to cuff him. The deputy drew his taser and commanded Campbell to stand next to the wall. Campbell threw down the pencil and made his way to the wall, but turned toward the deputy with his fists balled. Anticipating that Campbell was going to charge him, the deputy fired his taser and the leads struck Campbell on his chest but did not make him fall, so the deputy moved closer, intending to use the taser on him directly to force him to the ground. Before he could do so, Campbell charged him, pinned his arms in a bear hug, shoved him into a table, and threw him back over Campbell’s shoulder.

As the deputy crawled toward the door, Campbell struck him on the back of his head with his fists, then with the deputy’s radio and knocked him back to the ground. The deputy described it as feeling like he “was hit in the head with a brick.” He tried to get to his feet, fearing that Campbell was about to kill him, but Campbell kept hitting him on the head with the radio and knocking him to the ground. The officer finally “got enough push to lunge for the door” and escaped from the cell block. His clothes were completely covered in blood from a head wound that required stitches.

The other inmates in the block returned to their individual cells, but Campbell remained in the common area with the officer’s taser in his hands and a blanket over his shoulders. The sergeant called over the intercom system and told Campbell to empty his hands, but Campbell just fired the taser into the air. He got into a fighting stance when several officers entered the cell block. The sergeant deployed his taser, but Campbell was wearing a blanket that shielded him from the weapon’s effect. He dropped the blanket and began advancing toward the officers when a deputy struck him with the leads of his taser. When Campbell fought off the effects of the taser and began to stand, three officers struck him with their hands until they finally subdued and cuffed him. Campbell was charged with four counts of obstruction of a law enforcement officer, aggravated assault on a peace officer, mutiny in a penal institution, and riot in a penal institution. As to the aggravated assault charge, the jury found him guilty of the lesser included offense of felony obstruction, and also found him guilty of the other charges.

1. Although Campbell has not challenged the sufficiency of the evidence, the evidence as outlined above was sufficient to allow a rational trier of fact to find him guilty beyond a reasonable doubt of mutiny in a penal institution, riot in a penal institution, and five counts of obstruction of a law enforcement officer. Chynoweth v. State, 331 Ga. App. 123, 125 (1) (768 SE2d 536) (2015) (evidence that defendant swung his fist at officer was sufficient to affirm conviction for obstruction and riot in a penal institution for committing an act in a violent manner); Bierria v. State, 232 Ga. App. 622, 626 (9) (502 SE2d 542) (1998) (evidence that defendant was in lawful custody when he assailed, opposed or resisted an officer of the law with the intent to cause serious bodily injury was sufficient to affirm conviction for mutiny in a penal institution).

2. Campbell asserts that the trial court abused its discretion and denied him a fair trial by ordering that he appear at trial wearing an electronic shock device as a security measure when “nothing about Mr. Campbell or the circumstances of this case required the wearing of the shock device.” Campbell also alleges that his apprehension about the device impeded his ability to participate in his defense, thereby resulting in a denial of his right to a fair trial. He contends that he should be granted a new trial “following a hearing dedicated to his in-court behavior and the proper considerations governing the determination that a defendant must wear a non-visible electronic shock or stun device during a criminal trial,” citing Weldon v. State, 327 Ga. App. 862 (761 SE2d 421) (2014), aff’d, Weldon v. State, 297 Ga. 537 (775 SE2d 522) (2015).

Before striking the jury in this case, the State moved to have the trial court require Campbell to wear an electronic restraint belt during the trial and called three witnesses, one to testify about how the device worked and two to testify about other incidents of violence that arose with Campbell while he was incarcerated. The deputy responsible for courtroom security testified that the electronic restraint belt is a remote-controlled device that is placed around the subject’s waist, hidden from view, with the capacity to emit 50,000 volts of electricity for eight seconds. The device would be monitored by himself or his supervisor, both of whom were trained to use it, and would be activated only if there was “a physical manifestation by the individual in an aggressive manner.” If Campbell was “merely verbally disruptive” or simply stood up, the operator would cause the belt to give a warning tone rather than emit a shock.

A sheriff’s office booking supervisor testified that Campbell had flooded his jail cell while he was awaiting trial on these charges, and when the supervisor moved him to a new cell, Campbell refused to kneel down for his handcuffs to be released. The supervisor then tried to place Campbell in a restraint chair, but Campbell refused to do so, and in the struggle he bit the supervisor’s finger so deeply that fat and muscle were visible in the wound.

Another deputy testified that two days after the biting incident, he opened Campbell’s cell so Campbell could clean it, and Campbell became “involved in a verbal altercation with another inmate.” The deputy asked Campbell to return to his cell multiple times before Campbell finally complied. When the deputy closed Campbell’s cell door, Campbell began cursing at him and threatened to kill him if he ever caught him out on the street.

After hearing this testimony, the trial court determined that, based on the evidence presented, it was appropriate to require Campbell to wear the electronic restraint belt under his clothing and invisible to the jury. The restraining device was not activated at any time during Campbell’s trial.

Under OCGA § 15-1-3 (1), a trial court has the power “[t]o preserve and enforce order in its immediate presence and, as near thereto as is necessary, to prevent interruption, disturbance, or hindrance to its proceedings.” See also Nance v. State, 280 Ga. 125, 127 (623 SE2d 470) (2005). Campbell contends that the trial court abused its discretion in making him wear an electronic restraint belt because, unlike the defendants in other cases affirming the use of courtroom restraints, he was not on trial for murder and he had made no violent outbursts, threats to the prosecutor, or disruption in the courtroom.

Although it is well settled that a defendant is entitled to a trial free of partiality which the presence of excessive security measures may create, it is also as well established that the use of extraordinary security measures to prevent dangerous or disruptive behavior which threatens the conduct of a fair and safe trial is within the discretion of the trial court. [The Supreme Court of Georgia has] previously held that utilization of a remedial electronic security measure shielded from the jury’s view is permissible where the defendant fails to show that he was harmed by its use.

Young v. State, 269 Ga. 478, 479 (2) (499 SE2d 60) (1998), overruled in part on other grounds, Whitehead v. State, 287 Ga. 242, 249 (2) (695 SE2d 255) (2010).

While the use of a properly concealed shock device will never be so inherently prejudicial as to pose an unacceptable threat to the defendant’s right to a fair trial, “the analysis should not end there if the defendant claims that the shock device also violated his Sixth Amendment right to counsel or his due-process-based right to be present at trial.” Weldon, 297 Ga. at 543 (Nahmias, J., concurring). Campbell contends that “[a] criminal defendant should not be distracted and unable to focus on trial and assisting his attorney because he is afraid for his personal safety and avoiding physical injury.” He also noted in his recitation of the evidence that during a break, the trial court asked him to lower his voice to a whisper when he was talking to his lawyer. Campbell responded, “Yes, sir.... I don’t want to get electrocuted.” Other than this comment, Campbell has pointed to no assertions he made during the trial in which he asserted that wearing the restraint belt had an adverse effect on him because it prevented him from assisting his attorney.

Decided September 16, 2015.

Steven A. Miller, for appellant.

Herbert M. Poston, Jr., District Attorney, George J. Souther, Assistant District Attorney, for appellee.

Of course, a party can not during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later. Failure to raise the issue deprives the trial court of the opportunity to take appropriate remedial action and waives appellate review of any alleged impropriety.

Weldon, 297 Ga. at 541 (Citations and punctuation omitted).

The trial court did not abuse its discretion by ordering Campbell to wear the restraint belt.

Judgment affirmed.

Ray and McMillian, JJ, concur.


author: PHIPPS, Presiding Judge.

text:
    A15A1569.
    THE STATE v. STOCKHOFF.
    (777 S.E.2d 511)
   PHIPPS, Presiding Judge.

Christian Stockhoff was indicted for violating the theft of trade secrets statute and for computer theft. During his jury trial, the judge sua sponte declared a mistrial and announced that he was recusing himself from the case. The judge later entered written orders declaring a mistrial, voluntarily recusing himself from the case, and requesting the clerk of court to reassign the case to another judge in the circuit. Stockhoff filed a plea of former jeopardy, which the newly-assigned judge granted. The state now appeals, contending that retrial was not barred by double jeopardy because: (1) Stockhoff had consented to the declaration of a mistrial; and (2) the trial judge had declared a mistrial based on a manifest necessity. Because the mistrial was not declared over Stockhoff’s objection or without his consent, we reverse.

“The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s factual findings support its legal conclusion. Questions of law are reviewed de novo.”

The record shows the following. On the morning of November 10, 2014, before voir dire of the jury began, the prosecutor informed the trial court, “I only found out about this yesterday, but I guess there’s some tangential familial relationship between the defendant and you or something.” Stockhoff then stated that his ex-wife was the sister-in-law of the judge’s brother; Stockhoff further stated to the judge, “I know your parents pretty well.” The trial judge pertinently stated:

I didn’t know that until y’all told me that. I wouldn’t have . . . ever made that connection without y’all telling me that. I don’t recognize Mr. Stockhoff and I don’t know that I’ve ever .... [I]f it’s an issue — I don’t want there to be a problem at any juncture in time, so if there’s a problem, we need to address it now. If there’s not a problem, then we can go forward, but I wouldn’t have known that until y’all told me that.

Counsel for the state said, “it wasn’t an issue for me”; counsel for Stockhoff said, “I’m fine with that.” Both attorneys informed the judge that they were ready to go forward. After voir dire, the court recessed, and then reconvened on November 12, 2014.

On the morning of November 12, 2014, the judge heard argument on a motion in limine the state had filed. Thereafter, the jury entered the courtroom, and the judge administered the oath and gave preliminary instructions to the jury. The prosecutor gave his opening statement, during which he pertinently stated that when Stockhoff’s business partner had “confronted [Stockhoff] about [the fact that Stockhoff was acting a little erratically at work], [Stockhoff] said it was because he was going through a divorce, he was doing some work purchasing a new house, stresses related to that.”

During Stockhoff’s opening statement, defense counsel stated that Stockhoff had “married a woman way after his divorce from the first . . . wife, thought things were going to be good. Well, she developed a drinking problem.” The judge then abruptly stated, “Ladies and gentlemen, we’re going to need to take up something outside of your presence. We’ll be back with you as quickly as we can.” The jury exited the courtroom, and the trial judge stated to counsel, “Okay, at this time I’m going to declare a mistrial in this case and I recuse myself off this case. Okay. Thank y’all.” The judge explained:

You know, guys, this should have been brought up to me that you were going to be bringing this up before. You know, I didn’t know anything about this situation before y’all brought it up to me, but I’m not going to sit here and have my sister-in-law’s family brought into this case this way, and — ... You could have ... put up an opening statement, [defense counsel], without bringing this situation into it. That has nothing to do with this case.

Defense counsel replied, “That’s not true, Judge, it does have something to do with this case.” The following colloquy ensued.

THE COURT: Well, then you should have brought it to my attention earlier.
[DEFENSE COUNSEL]: Judge, I did not get into this case until after the time for recusal had long passed.
THE COURT: It doesn’t matter. I would have — if— if it was going to be something that was going to be involved in this case, I would have voluntarily stepped away from the case. But if that’s going to be something that’s involved in this case, I cannot sit on it.
[DEFENSE COUNSEL]: It’s — all I’m going to say is what — he’s going to testify to maybe two or three sentences and the divorce, and that was it.
THE COURT: Seriously?
[DEFENSE COUNSEL]: Okay. All right. That’s fine, Judge,[]
THE COURT: I mean, I’m willing to talk about it, but, you know, the whole recusal thing is kind of my choice, too.
[DEFENSE COUNSEL]: That’s fine, Judge. You’ve declared a mistrial, you’ve recused yourself. We’ll take it somewhere else.
THE COURT: Is there any reason I shouldn’t, [Prosecutor]?
[PROSECUTOR]: I guess I’m a little bit in the dark about the whole background here.
THE COURT: Well, I don’t know anything about it either until it comes up. I do know that my sister-in-law had a very difficult divorce, and I know that in many ways the family blames this man for... her problems. But it didn’t seem like, to me, that that was going to have anything to do with this case.... But I had no — I mean, I thought it was something that we could pass through, but all of a sudden it’s brought up in opening statements of a case. . . . [Hjonestly, number one, I didn’t recognize — I have never known the man’s name who my sister-in-law’s sister was married to. I’ve never known the name, have never recognized Mr. Stockhoff. It got brought up to me, didn’t think it had anything to do with the case, and then all of a sudden it’s brought up in opening statement. Apparently it’s going to play a role in the case. It seems like that should have been brought to my attention.
[DEFENSE COUNSEL]: Judge, all I can tell you is I thought that had all been addressed prior to the time I got in the case. I mean, I don’t — there are other lawyers in the case, the time under the rules say when you can raise it, and, you know.
THE COURT: I understand. But it was obvious when we got together on Monday, that it hadn’t been raisedf.] . . .
[PROSECUTOR]: I think... the safer course is I think what the Court said, because I. . . don’t want anyone, you know, looking back and saying that. You know, obviously it’s clear from the Court’s feelings that....
THE COURT: I don’t have any feelings about this whatsoever, because I don’t . . . even know my sister-in-law that well.... [S]o that’s neither here nor there, but it just seems like to me that it’s going to become an issue in this case. I didn’t think it was going to be an issue, I thought that we had addressed everything that we needed to address about it, but if it comes up in that manner, it seems like to me that it’s going to be an issue. So I guess now is the time — I’m sorry, I overreacted earlier, but I just think that, you know, it was something that should have been brought into a little bit more about it. If people have thoughts, I guess — I, again, apologize, I kind of overreacted, but I just — I think there’s a problem.
[DEFENSE COUNSEL]: If the Court says I trust the Court’s judgment, I just don’t want the Court to think I was trying to . . . pull something on the Court, because I wasn’t.
THE COURT: I don’t think you were trying to pull anything on the Court, on me at all. I just wish that... we’d had a little bit more of a discussion about it on Monday, because it —
[DEFENSE COUNSEL]: I understand.
THE COURT: Okay Well, unfortunately I think that that’s what I’ve got to do. Thank y’all.
[DEFENSE COUNSEL]: Are you just going to release the jury?
THE COURT: I am.
[DEFENSE COUNSEL]: Okay. Thank you, Judge.

“Once a defendant’s jury is impaneled and sworn, jeopardy attaches, and he is entitled to be acquitted or convicted by that jury If a mistrial is declared without a defendant’s consent or over his objection, the defendant may be retried only if there was a ‘manifest necessity’ for the mistrial.”5 6 The newly-assigned judge granted Stockhoff’s plea of former jeopardy, concluding that “there was no consent to the grant of a mistrial, either expressed or implied”; “there was no manifest necessity for declaring a mistrial”; and the trial judge abused his discretion, as “there [was] simply no evidence thát the trial court considered any alternative to declaring a mistrial for what, essentially, was a benign statement concerning the expected evidence, that was in response to the State’s opening statement.”

The newly-assigned judge erred in concluding that Stockhoff had not consented to the grant of the mistrial. On appeal, Stockhoff argues that he was “faced with a fait accompli when [the trial judge] stated, ‘Okay, at this time I’m going to declare a mistrial in this case and I recuse myself off this case.’ ” Stockhoff posits that once the trial judge uttered those words, he was prohibited from acting “upon the merits of the matter”; “there was no opportunity for Defendant to object to such done deed”; and that therefore, “Stockhoff’s objection, if one was required, would have been a nullity” We disagree with Stockhoff.

The trial judge had declared a mistrial outside the presence of the jury and before the jury was released; and the declaration of mistrial was followed by extensive discussion by counsel and the judge who said he was “willing to talk about it.” The judge explained why he had not anticipated that any issue involving his former familial relation to Stockhoff would have arisen in Stockhoff’s criminal trial; and the judge expressed his belief that “there’s a problem” with his presiding over Stockhoff’s criminal trial. During the discussion, there was ample opportunity for Stockhoff to object to the judge’s declaration of a mistrial; the trial judge asked the state whether there was any reason he should not declare a mistrial and recuse from the case. The state posited that the judge’s decision was the “safer course”; defense counsel opined that the time for the defense to have made a motion for recusal had “long passed,” and the only concern expressed by defense counsel was about not wanting the trial judge to believe he was “trying to... pull something on the Court, because I wasn’t.”

At no point, from the time the judge announced that he was declaring a mistrial to the time the judge released the jury, did defense counsel object to the declaration of a mistrial. After the trial judge informed the attorneys that he could not “sit on” the case, defense counsel replied, “Okay. All right. That’s fine, Judge,” later indicating that he did “understand” the judge’s reasoning for declaring a mistrial and recusing himself from the case, and stating that he “trust[ed] the Court’s judgment.” And although it was defense counsel who asked the judge whether he was “just going to release the jury,” when the judge replied “I am,” counsel did not object; he merely responded, “Okay. Thank you, Judge.” Indeed, the record does not reflect that prior to the filing of the plea of former jeopardy counsel had ever objected to the court’s declaration of a mistrial or recusal from the case. During his colloquy with the judge, defense counsel pertinently stated that the judge’s sister-in-law’s family situation “had something to do with this case,” and that he had thought “that had all been addressed” by “other lawyers” who had previously represented Stockhoff.

“Consent to the grant of a mistrial can be express or implied. Although [Stockhoff] did not expressly consent to a mistrial, he impliedly consented by failing to object timely to the mistrial declaration.” “It is . . . obvious that the trial court labored under the impression that the defendant had in fact so agreed.”* It follows that the newly-assigned judge thus erred in barring further prosecution of Stockhoff.

Decided September 16, 2015

Daniel J. Porter, District Attorney, Nigel R. Lush, Assistant District Attorney, for appellant.

Chandler, Britt & Jay, Walter M. Britt, J. Danielle Britt, for appellee.

For the foregoing reasons, the judgment granting Stockhoff’s plea of former jeopardy is reversed. We need not address whether there was a manifest necessity for declaring a mistrial, or whether the trial court failed to consider any alternative to declaring a mistrial.

Judgment reversed.

Doyle, C. J., and Boggs, J., concur.

       See OCGA § 16-8-13.

       See OCGA § 16-9-93 (a).

        Julian v. State, 319 Ga. App. 808 (738 SE2d 647) (2013) (punctuation and footnote omitted).

       (Emphasis supplied.)

      5 (Emphasis supplied.)

      6 (Emphasis supplied.)

        Julian, supra at 810 (punctuation and footnote omitted).

      8 The term fait accompli means “a deed accomplished.” Black’s Law Dictionary (10th ed. 2014).

       (Emphasis supplied.)

        State v. Johnson, 267 Ga. 305, 305-306 (477 SE2d 579) (1996) (citations omitted); State v. Grayson, 332 Ga. App. 862, 864 (1) (775 SE2d 222) (2015); see Howell v. State, 266 Ga. App. 480, 487-488 (3) (597 SE2d 546) (2004).

        Burleson v. State, 259 Ga. 498, 500 (384 SE2d 659) (1989).

       See Johnson, supra (“if a defendant consents to a mistrial, he may not thereafter utilize the mistrial as the basis of a plea of double jeopardy”) (citation omitted); Grayson, supra; Howell, supra. Compare McGee v. State, 287 Ga. App. 839, 841-842 (1) (652 SE2d 822) (2007) (denial of motion for discharge and acquittal based on double jeopardy, reversed; mistrial had been declared over defense counsel’s objection and there was no evidence that the trial court had considered any alternative to declaring a mistrial).

       See Grayson, supra (“Pretermitting whether reversal is required by the trial court’s ruling that there was no ‘manifest necessity’ for the mistrial, the trial court committed reversible error by overlooking the fact that [the defendant] consented to the mistrial[.]”) (emphasis supplied); Smith v. State, 263 Ga. 782, 783 (1) (439 SE2d 483) (1994) (“[a] manifest necessity to declare a mistrial may exist ‘under urgent circumstances’____Because of the severe consequences of ordering a mistrial without the accused’s consent, a trial court should give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives”) (citations and punctuation omitted).


author: Miller, Judge.

text:
    A15A0891.
    ROACH v. BREEDEN.
    (777 S.E.2d 689)
   Miller, Judge.

Brittany Breeden filed a petition to establish paternity and legitimation and to obtain sole custody of her minor child, I. R. Curtis Roach, I. R.’s father, moved to dismiss the petition and to enforce a Tennessee custody order. The trial court denied Roach’s motion, and thereafter legitimated I. R. and granted sole physical custody to Breeden. On appeal, Roach contends that the trial court erred in denying his motion to dismiss Breeden’s petition and to enforce the Tennessee custody determination because Tennessee had exclusive, continuing jurisdiction over custody matters. We agree and reverse.

The record shows that in September 2013, the Juvenile Court of Knox County, Tennessee (the “Tennessee Juvenile Court”) entered an order accepting a parenting plan agreed to by Breeden and Roach. The order provides that I. R. would primarily reside with Breeden, and Roach would have custody of the child every other week. The order also provides that each parent is authorized to make day-to-day decisions affecting the child while the child is residing with that parent, Roach and Breeden have joint decision-making power regarding nonemergency health care for the child, and Breeden is authorized to make decisions about the child’s education.

In April 2014, Breeden filed a petition for contempt of court in the Tennessee Juvenile Court, alleging that Roach violated the parenting agreement by refusing to return I. R. to her care after Roach’s designated week, and asking the court to order Roach to return the child to her. In her petition, Breeden admitted that she and Roach had joint custody of I. R.

By this time, Breeden was living in Georgia. Two weeks after filing her petition for contempt, Breeden filed the instant petition in the Superior Court of Walker County.

The Tennessee Juvenile Court ordered an expedited hearing to address Breeden’s petition for contempt, but did not reach the merits of Breeden’s petition because she was unable to attend. The Tennessee Juvenile Court did, however, hear evidence that Breeden did not abide by the co-parenting plan, and that Roach had reported Breeden to the Tennessee Department of Children Services (“Tennessee DCS”) based on a concern that Breeden was not providing I. R. with necessary medical care. Consequently, in May 2014, the Tennessee Juvenile Court issued an “Expanded Order Asserting Protective Jurisdiction and Order of Continuance” (the “Expanded Order”), asserting protective jurisdiction over I. R. to address risks of harm raised by Breeden’s petition for contempt and by the Tennessee DCS reports, and ordering Breeden to return the child to Roach for resumption of the co-parenting plan.

Thereafter, Roach filed a motion to dismiss Breeden’s instant petition, arguing that the Georgia trial court had jurisdiction to enforce, but not modify, the Tennessee custody order. Roach also requested that the trial court enforce the Tennessee custody order directing the county sheriff to assist Roach in obtaining physical custody of I. R.

The trial court denied Roach’s motion to dismiss and motion to enforce, concluding that Roach did not have standing to challenge a custody determination as to the child because the child had not been legitimated and Roach’s paternity had not been established. The trial court also found that Georgia was the more appropriate and convenient forum to try the issues in the case. Thereafter, the trial court held a hearing on Breeden’s petition, and entered an order legitimating I. R. and granting Breeden sole custody of the child. This appeal ensued.

On appeal, Roach contends that the trial court erred in addressing the merits of Breeden’s petition and granting her sole custody because the Tennessee Juvenile Court had continuing and exclusive jurisdiction over custody because it made the initial custody determination and took no action to relinquish its jurisdiction. We agree.

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) was promulgated to address

problems of competing jurisdictions entering conflicting interstate child custody orders, forum shopping, and the drawn out and complex child custody legal proceedings often encountered by parties when multiple states are involved.

(Punctuation and footnote omitted.) Delgado v. Combs, 314 Ga. App. 419, 424 (724 SE2d 436) (2012). Georgia adopted its version of the UCCJEA, OCGA § 19-9-40 et seq., replacing our State’s prior child custody act,

because, in application, imprecision in the prior act’s language often allowed for the existence of concurrent jurisdiction over custody matters in multiple states, thereby fostering competition among jurisdictions and forum shopping by the parties. The UCCJEA now remedies these earlier unintended problems by establishing continuing jurisdiction in the state in which the original custody decree was entered.

(Punctuation and footnote omitted.) Hall v. Wellborn, 295 Ga. App. 884, 885 (673 SE2d 341) (2009). Tennessee has also adopted the UCCJEA. See TCA § 36-6-201 et seq.; Staats v. McKinnon, 206 SW3d 532, 538 (I) (Tenn. Ct. App. 2006). In applying and construing the UCCJEA, we must consider “the need to promote uniformity of the law with respect to its subject matter among states that enact it.” OCGA § 19-9-101.

Under both Georgia’s and Tennessee’s versions of the UCCJEA, a “child custody determination” is defined as “a judgment, decree, or' other order of a court providing for the legal custody, physical custody, or visitation with respect to a child [,]” and the term includes a “permanent, temporary, initial, and modification order.” See OCGA § 19-9-41 (3); TCA § 36-6-205 (3). The term “initial determination” is defined as “the first child custody determination concerning a particular child.” See OCGA § 19-9-41 (8); TCA § 36-6-205 (8).

Under the UCCJEA, a court of this State may not modify a child-custody determination made by a court in another state unless

a court of this state has jurisdiction to make an initial determination under paragraph (1) or (2) of subsection (a) of Code Section 19-9-61 and [1] the court of the other state determines it no longer has exclusive, continuing jurisdiction under Code Section 19-9-62 or that a court of this state would be a more convenient forum under Code Section 19-9-67; or [2] a court of this state or a court of the other state determines that neither the child nor the child’s parents or any person acting as a parent presently resides in the other state.

(Punctuation omitted.) Delgado, supra, 314 Ga. App. at 426 (1); see also OCGA § 19-9-63.

As a preliminary matter, there is no question that the Tennessee Juvenile Court order adopting Roach’s and Breeden’s parenting plan was an initial custody determination. Notably, the parenting plan designates Breeden as the primary residential parent, provides that the child is to reside with Roach every other week, and details a specific holiday visitation schedule. The parenting plan also provides that the parties share certain legal rights with respect to the child. Moreover, Breeden conceded in her filings before the trial court that she and Roach had joint physical custody of I. R. Since the definition of a “child custody determination” includes an “order of the court providing for the legal custody, physical custody, or visitation” of the child, the Tennessee order adopting the parties’ parenting plan was the initial custody determination for purposes of the UCCJEA. See Armbrister v. Armbrister, 414 SW3d 685, 695-696 (III) (A), 703 (III) (B) (ii) (Tenn. 2013) (noting that the designation of a “primary residential parent” is the equivalent to a custody determination); Pippin v. Pippin, 277 SW3d 398, 407 (Tenn. Ct. App. 2008) (same).

Decided September 21, 2015.

McCamy, Phillips, Tuggle & Fordham, Curtis A. Kleem, for appellant.

Brittany Breeden, pro se.

Given that the Tennessee Juvenile Court made an initial custody determination, we must next determine whether the Georgia trial court had jurisdiction to modify that Tennessee custody determination. We conclude that it did not.

Even assuming arguendo that the trial court would have jurisdiction to make an initial custody determination under OCGA § 19-9-61, the other conditions of OCGA § 19-9-63 were not fulfilled in order to confer jurisdiction to the trial court to modify the initial custody determination. First, there is no record evidence that the Tennessee Juvenile Court ever determined that it no longer had exclusive, continuing jurisdiction. OCGA § 19-9-63 (1). Second, while the trial court concluded that it was the more appropriate and convenient forum to try the issues in this case, “OCGA § 19-9-63 (1) specifies that the out-of-state court must make this determination, not Georgia, and [Tennessee] has never made such a determination.” (Footnotes omitted.) Delgado, supra, 314 Ga. App. at 427 (1). Finally, there has been no finding either by the Tennessee court or by the trial court that “neither the child nor the child’s parents or any person acting as a parent presently resides in [Tennessee].” OCGA § 19-9-63 (2). Indeed, it is undisputed that Roach still lives in Tennessee, and the child is supposed to live with Roach on alternate weeks.

Therefore, since the Tennessee Juvenile Court retains exclusive, continuing jurisdiction in this matter, the trial court lacked jurisdiction to modify the initial Tennessee custody order. Accordingly, we reverse the trial court’s orders denying Roach’s motion to dismiss and granting Breeden’s legitimation petition.

Judgment reversed.

Andrews, P. J., and Branch, J., concur.

       Breeden did not file a responsive brief in this appeal. Accordingly, Breeden is deemed to have admitted the statement of facts as set out hy Roach in his brief, to the extent that statement of facts is supported by the record. See, e.g., Payless Car Rental System v. Elkik, 306 Ga. App. 389, 390, n. 4 (702 SE2d 697) (2010); see also Court of Appeals Rule 25 (b) (1).

       Breeden was hospitalized at the time, as she had recently given hirth to her second child.

       The fact that the Tennessee order did not, in itself, legitimate the child or establish paternity is of no moment. Breeden conceded that Roach was the biological father of I. R., and Breeden and Roach both signed a voluntary acknowledgment of paternity. These actions established that Roach was the legal father under Tennessee law. See TCA §§ 24-7-113 (a); 36-1-102 (28) (A) (iv).