text:
    A17A0916.
    SMITH v. THE STATE.
    (805 SE2d 251)
   Dillard, Chief Judge.

Following trial, a jury convicted Dajon Smith on two counts of armed robbery, two counts of false imprisonment, one count of kidnapping, and one count of aggravated assault. Smith appeals his convictions and the denial of his motion for new trial, challenging the sufficiency of the evidence supporting the jury’s verdict and arguing that the trial court erred in allowing a police officer to testify as an expert witness. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that in the early morning hours of July 5, 2013, five high-school-age boys decided to end the day’s Fourth of July festivities by going for a late-night swim at another friend’s apartment complex pool. On the short walk to the nearby apartment complex, the boys stopped at a convenience store to buy some snacks. And after leaving the store, they noticed that two males appeared to be following them. Nevertheless, the boys continued toward the apartment complex pool, and once there, they set their belongings down on some chairs and began swimming.

A few minutes later, the two males who had followed the boys hopped the fence surrounding the pool and approached the area where the boys had placed their belongings. Suspicious, the boys got out of the pool, at which point they observed that one of the males was tall, thin, and wearing a dark hat, and the other was shorter, stocky, and had a bandana covering most of his face. The shorter male then asked the boys if they wanted to buy some marijuana, and when they declined, he drew a handgun and pointed it at them. Immediately, one of the boys jumped back in the pool, swam to the other side, climbed the fence, and, recalling that he had seen a police officer at the convenience store, ran there to get help.

Meanwhile, the shorter male wearing the bandana ordered the remaining boys to get back into the pool. He then demanded that the boys turn over their money, cell phones, and any other valuables, and ordered one of the boys to get out of the pool to assist him and the taller male in retrieving such items from the boys’ backpacks. And after taking two cell phones and approximately $20 from the boys, the two assailants hopped back over the fence and fled the area. A few minutes later, two police officers arrived, having been alerted to the robbery by the boy who escaped and ran to the convenience store for assistance. But because of the lack of lighting in the pool area and the shorter male’s bandana, the boys could only provide the officers with a description of the assailants’ size and clothing.

The very next day, again in the early morning hours, the same two officers who had responded to the robbery received a call that two suspicious persons appeared to be casing an apartment complex that was within walking distance of the complex where the previous night’s robbery occurred. Upon arriving at the complex, the officers came into contact with two males, who ultimately identified themselves as Tremaine Davie and Dajon Smith. Immediately, one of the officers noticed that the males matched the general description provided by the boys of the individuals who had robbed them the previous night. And while speaking with Davie and Smith, the officers received another call from dispatch, informing them that the caller who originally reported the suspicious individuals further claimed that they appeared to have thrown a handgun into the woods bordering the complex just as the officers arrived.

Subsequently, one of the police officers walked Davie away from where the other officer was questioning Smith and asked him if he knew anything about the previous night’s robbery Initially, Davie denied any knowledge of the incident, but after the officer bluffed regarding the existence of surveillance video from the apartment complex, Davie admitted that he and Smith had robbed the boys the previous evening. Specifically, Davie stated that he and Smith followed the boys to the pool and that Smith, wearing a bandana, held the boys at gunpoint while he went through their belongings, taking two cell phones and $20. In light of this information, the officers arrested both Smith and Davie.

Following the arrests, the officer searched the nearby woods and located a handgun just as the caller who had reported the suspicious persons had speculated. The officers then transported Davie and Smith to the police station, at which point Davie again admitted to the robbery. And while searching Smith at the station, the officers found a bandana, which Smith had attempted to conceal inside the front of his pants. In addition, after securing a warrant, a detective searched the suspects’ residences, recovering one of the boy’s cell phones at Davie’s apartment and the other at Smith’s apartment, as well as clothing that matched the description of those worn by the shorter robber.

Thereafter, the State charged Smith and Davie, via the same indictment, with two counts of armed robbery, two counts of false imprisonment, one count of kidnapping, and one count of aggravated assault. Davie ultimately pleaded guilty, but Smith opted for trial, during which the aforementioned evidence was presented. The State also presented Davie as a witness, but in contrast to his earlier confessions, at Smith’s trial, Davie claimed that he committed the robbery alone and denied that Smith was involved. Nevertheless, Davie admitted during his testimony that he had previously implicated Smith in the crime, and the State presented evidence of those initial confessions.

At the conclusion of the trial, the jury found Smith guilty on all counts. Smith later filed a motion for a new trial, in which he argued the two claims he now raises on appeal. The State filed a response, in which it conceded that the evidence was insufficient to support Smith’s kidnapping conviction, but it otherwise contested Smith’s claims. Consequently, the trial court vacated Smith’s kidnapping conviction but denied the remaining claims in his motion for new trial. This appeal follows.

1. Smith contends, rather generally, that the evidence was insufficient to support his convictions. We disagree.

When a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. And in evaluating the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility but only determine whether “a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” Accordingly, the jury’s verdict will be upheld so long as “there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case[.]” With these guiding principles in mind, we turn now to Smith’s challenge.

Under OCGA § 16-8-41 (a), “[a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon_’’And under OCGA § 16-5-41 (a), “[a] person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority” Finally, under former OCGA § 16-5-21 (a) (l), “[a] person commits the offense of aggravated assault when he or she assaults . . . [w]ith intent to murder, to rape, or to rob. . .

In this matter, the State charged Smith with two counts of armed robbery, alleging respectively in Counts 1 and 2 that he took a cell phone and United States currency from E. E. and a cell phone from J. T. “by use of an offensive weapon ... a firearm. . . The State also charged Smith with two counts of false imprisonment, alleging respectively in Counts 3 and 4 that he “[violated] the . . . liberty of [M. M.]” and “[J. T.].” Finally, the State charged Smith with aggravated assault, alleging in Count 6 that he assaulted “[A. J.], with intent to rob, by pointing a gun at said victim. . . And as previously noted, the evidence showed that Smith held the four boys at gunpoint, forced them into the pool to restrict their ability to flee, and stole two cell phones and money from them before fleeing. Accordingly, the evidence was sufficient to support Smith’s convictions.

2. Smith also contends that the trial court erred in allowing one of the investigating police officers to testify as an expert regarding interviewing witnesses to a crime. Again, we disagree.

OCGA § 24-7-707 of the new Evidence Code provides that “[i]n criminal proceedings, the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions maybe given on the facts as proved by other witnesses.” Indeed, expert opinion testimony on issues to be decided by the jury—even the ultimate issue—is admissible “where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman.” And in order to qualify as an expert in a criminal proceeding in Georgia, all that is required is that “a person be knowledgeable in a particular matter; his special knowledge may be derived from experience as well as study, and formal education in the subject is not a prerequisite for expert status.” Importantly, a decision as to whether “a witness possesses such learning or experience to qualify as an expert witness lies within the sound discretion of the trial court and will not be disturbed unless manifestly abused.”

During Smith’s trial, one of the police officers who initially responded to the victims’ report of the robbery testified that he had been involved in “dozens upon dozens” of such cases, at which point, the State’s prosecutor asked: “Okay. What do you typically expect out of eyewitnesses to some sort of crime? Would you talk to us a little bit about that?” Smith’s counsel objected, arguing that the officer was not an expert in this area and that he would have to be an expert in order to respond to that type of question. The trial court then asked the State to provide a foundation for the officer’s expertise, and thereafter, the officer testified that he had eleven years of experience with the police department; had taken the basic POST mandates and “dozens and dozens” of other classes, including courses pertaining to interviewing and interrogating. The officer also reiterated that he had significant experience investigating crimes such as the one at issue and had testified on multiple occasions regarding such investigations.

Following this testimony, the State’s prosecutor moved for the officer to be accepted “[a]s an expert in basically the field of investigations, being able to talk to witnesses and have an opinion about what you’re looking for and what you’d expect when you talk to witnesses.” Smith’s counsel, again, objected, arguing that the State had not laid the proper foundation. But the trial court disagreed and overruled the objection. The State’s prosecutor and the officer then engaged in the following colloquy:

Q: Will you just talk to us a little bit about eyewitness accounts, the kind of things that you expect, talk to us a little about that.
A: Particularly in cases like this where you have multiple victims, generally speaking, they’re considered unreliable. It’s hard to say one individual to another how they react to stress, lighting conditions, and things of that nature, so when we arrive on a scene like this or any other scene where you’ve got multiple victims or witnesses, you tend to get a whole jumble of different, things. An example would be some person, you know, says he was wearing this color shirt or he was wearing that color shirt. You know, he was a black male, he was a white male, things of that nature. So we generally consider them to be unreliable due to the fact that you wind up, you know, with 40 different—
Q: Okay And you expect some level of inconsistencies among different witnesses?
A: Yes.
Q: When you say unreliable, I guess when you have a lot of witnesses you get—find that you typically get some sort of common ground when you generally get a good idea of what happened?
A: You generally—we say the truth is somewhere in the middle.
Q: Okay.
A: You know, it’s not that anyone is lying, but, again, people react differently to stressors. And it’s just a matter of talking to them and finding the common middle ground that they have.

On appeal, Smith again contends that the trial court erred in allowing the officer to testify as an expert. But in addition to reasserting his claim that the officer did not have the sufficient background to be considered an expert, Smith also argues that the officer’s testimony constituted improper bolstering of the victims’ credibility and, thus, invaded the province of the jury Nevertheless, pretermit - ting whether Smith waived appellate review of this latter argument by failing to object to the officer’s testimony on that specific ground, we conclude that the trial court did not err in allowing the officer to testify in such a manner.

First, the police officer testified that he had extensive training in conducting investigations and interviewing witnesses and 11 years of experience doing so. Given these particular circumstances, the trial court did not abuse its discretion in finding that the State laid a sufficient foundation that the officer possessed a greater knowledge and experience in this area than that of the average juror, and, therefore, it did not err in qualifying the officer as an expert witness. And as to Smith’s second—and newly raised—argument, “[i] mproper bolstering occurs when an expert witness is allowed to give his or her opinion as to whether the complaining witness is telling the truth, because that is an ultimate issue of fact and the inference to be drawn is not beyond the ken of the average juror.” But here, the officer testifying as an expert did not offer any opinion as to the truthfulness of the boys. Rather, the officer testified that, on the basis of his experience, multiple witnesses to a crime often provide inconsistent accounts of the event. And that testimony was in no way a “comment on an ultimate issue of fact.” Indeed, as to the ultimate issue of whether Smith was one of the males who committed the robbery, it would have been impossible for the officer to provide such an opinion on the boys’ truthfulness given that the boys themselves did not, at any point, identify either of their assailants. Accordingly, the trial court did not err in allowing the officer to testify as an expert regarding interviewing witnesses to a crime.

Decided August 30, 2017.

Debra Kay Jefferson, for appellant.

For all these reasons, we affirm Smith’s convictions.

Judgment affirmed.

Ray, P J., and Self, J., concur.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Matthew E. Acuff, Assistant District Attorneys, for appellee.

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

       As noted supra, the trial court vacated Smith’s kidnapping conviction. Thus, any claim of error regarding that conviction is moot, and we need not address it. See Wallace v. State, 294 Ga. 257, 258 (2) (754 SE2d 5) (2013) (holding that defendant’s argument pertaining to his conviction of felony murder based on aggravated assault was moot because trial court vacated that conviction).

        See English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        Joiner v. State, 299 Ga. App. 300, 300 (682 SE2d 381) (2009); see also Jackson, 443 U. S. at 319 (III) (B).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation omitted).

       OCGA § 16-5-21 was amended effective July 1, 2014, such that a new subsection (a) was added and what was formerly subsection (a) became subsection (b). See Ga. L. 2014, p. 441, § 1. Thus, although none of the substantive changes to the statute impact this case, we nevertheless apply the prior version.

        See McGil v. State, 339 Ga. App. 130, 131 (1) (793 SE2d 442) (2016) (finding that evidence defendant approached victim in parking lot, pointed a gun at him, and then stole his cell phone before fleeing was sufficient to support convictions on charges of armed robbery and aggravated assault with intent to rob); Kiser v. State, 327 Ga. App. 17, 19-20 (2) (755 SE2d 505) (2014) (holding that evidence defendant held victim inside trailer at gunpoint was sufficient to support defendant’s conviction on false-imprisonment charge); Calhoun v. State, 318 Ga. App. 835, 838-39 (2) (b) (734 SE2d 809) (2012) (finding that evidence defendant ordered store manager to front of store to assist other employee in opening cash register was sufficient to support false-imprisonment conviction); Davis v. State, 306 Ga. App. 450, 450-51 (702 SE2d 736) (2010) (holding that evidence defendant pointed gun at victim and demanded money was sufficient to support conviction on charges of aggravated assault with intent to rob).

       Because this case was tried in June 2015, Georgia’s new Evidence Code is applicable. See Ga. L. 2011, p. 99, § 101 (providing that Georgia’s new Evidence Code applies “to any motion made or hearing or trial commenced on or after” January 1,2013). Regardless, the evidentiary requirements relating to the admissibility of expert opinion testimony in a criminal case under OCGA § 24-7-707 are nearly identical to those that applied under the former Evidence Code (OCGA § 24-9-67). Thus, it is not inappropriate to consider decisions under the old Code in this particular instance. See Jones v. State, 299 Ga. 40, 42 (2) n.2 (785 SE2d 886) (2016) (noting that “where ‘provisions of the new Evidence Code were carried over from our old Evidence Code, and when courts consider the meaning of those provisions, they may rely on Georgia decisions under the old Code’ ”). It is also permissible for Georgia courts to consider federal decisions in areas covered by carried-forward provisions. See State v. Frost, 297 Ga. 296, 299 (773 SE2d 700) (2015) (Blackwell, J.) (“Some other provisions of the new Evidence Code were carried over from our old Evidence Code, and when courts consider the meaning of those provisions, they may rely on Georgia decisions under the old Code.”) (emphasis supplied); Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence 2 (5th ed. 2016) (‘Frost is a clear and highly beneficial opinion. Significantly, Frost is forceful in connection with the use of federal authority and the rules of statutory meaning. When it comes to the use of prior Georgia decisions in connection with ‘carried over . . . old Evidence Code’ statutes, however, Frost uses the word ‘may.’ This softened language likely reflects the Georgia Supreme Court’s recognition that, even where former Georgia evidence mies were replicated under the new code, their interpretation might, at least ‘at the margins,’ be impacted by the philosophical changes in favor of admissibility reflected by Georgia adopting federal version of Evidence Rules 401 (relevance), 402 (presumptive admissibility), and 403 (exclusion of otherwise relevant evidence).”).

        Maldonado v. State, 325 Ga. App. 41, 49 (5) (752 SE2d 112) (2013) (punctuation omitted); see also Mosby v. State, 300 Ga. 450, 453 (2) (796 SE2d 277) (2017) (noting that expert testimony is admissible when the expert’s conclusion is beyond the ken of the average layman); Gibbs v. State, 340 Ga. App. 723, 728-29 (3) (798 SE2d 308) (2017) (same).

        Pepe-Frazier v. State, 331 Ga. App. 263, 266 (2) (770 SE2d 654) (2015) (punctuation omitted); see also Burgess v. State, 292 Ga. 821, 822 (2) (742 SE2d 464) (2013) (“A witness need not be formally educated in the field at issue to be qualified as an expert.”); Fielding v. State, 278 Ga. 309, 311 (3) (602 SE2d 597) (2004) (“An expert witness is anyone who, through training, education, skill, or experience, has particular knowledge that the average juror would not possess concerning questions of science, skill, trade, or the like.”).

        Pepe-Frazier, 331 Ga.App. at 266-67 (2) (punctuation omitted); see also Burgess, 292 Ga. at 822 (2) (“Atrial court has broad discretion in accepting or rejecting the qualifications of an expert. We will not disturb such rulings unless there is a showing that the trial court abused its discretion.” (citation and punctuation omitted)).

        See Hurt v. State, 298 Ga. 51, 53-54 (2) (779 SE2d 313) (2015) (holdingthat “in order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground” (punctuation omitted)); Sneed v. State, 337 Ga. App. 782, 785 (1) (b) (788 SE2d 892) (2016) (“To preserve an objection upon a specific ground for appeal, the objection on that specific ground must be made at trial, or else it is waived.” (punctuation omitted)).

        See Gibbs, 340 Ga. App. at 728-29 (3) (holding that testimony by a police expert with regard to whether the use-of-force continuum permits a police officer to shoot at a car coming toward him would be beyond the ken of the average juror and therefore admissible); Hubert v. State, 297 Ga. App. 71, 74 (4) (676 SE2d 436) (2009) (holding that the trial court did not err in qualifying the detective as an expert witness given the detective’s training and experience in conducting forensic interviews of children).

        Maddox v. State, 275 Ga. App. 869, 871 (2) (622 SE2d 80) (2005); accord Westbrooks v. State, 309 Ga. App. 398, 401 (2) (710 SE2d 594) (2011).

        Maddox, 275 Ga. App. at 871 (2); see Jones v. State, 296 Ga. App. 288, 291 (1) (d) (674 SE2d 130) (2009) (holding that officer testifying as an expert witness that, in his experience, victims of abuse are generally reluctant to report the abuse, as recounting such to police and others is perceived as an unpleasant experience, was not a comment on the victims’ truthfulness and did not invade the province of the jury); Walton v. State, 291 Ga. App. 736, 739-40 (2) (662 SE2d 820) (2008) (finding that loss prevention officer’s testimony as to the existence of certain typical patterns of behavior exhibited by shoplifters, and then describing the behaviors he observed while following defendant around the store did not constitute an opinion as to the ultimate issue); Maddox, 275 Ga. App. at 871 (2) (holding that expert’s testimony, based on her experience as a forensic interviewer, regarding the ability of interviewees to recall certain things did not constitute a comment on an ultimate issue of fact).

        See supra notes 13 and 15.


source: Caselaw Access Project

author: Dillard, Chief Judge.

license: Public Domain

text:
    A17A1106.
    PLATT v. THE STATE.
    (805 SE2d 112)
   Dillard, Chief Judge.

Bartholomew Platt, proceeding pro se, appeals the trial court’s denial of his motion to withdraw his guilty pleas to theft by taking, false swearing, and second-degree cruelty to children, arguing that he is entitled to be represented by counsel on appeal, he was not informed of the correct sentencing range for one of his charges, and there was an insufficient factual basis to support his guilty plea to theft by taking. For the reasons that follow, we remand this case for further proceedings consistent with this opinion.

The record shows that on February 7, 2014, a convenience-store owner reported to law enforcement that some of his scaffolding, which was worth more than $1,500, had been stolen. An investigation ensued, and law-enforcement officers ultimately “tracked [the scaffolding] down to SLM Recycling.” The officers then determined that Platt had signed the scaffolding over to SLM Recycling and falsely represented that he had the authority to do so. Based on this information, Platt was indicted in Case No. 14-CR-890 for theft by taking involving property worth more than $1,500 and false swearing. Then, on February 16, 2015, in a separate and apparently unrelated incident, Platt was caught on videotape outside a convenience store pushing a “young man” to the ground and holding him there. As to that incident, in Case No. 15-CR-611, Platt was indicted for cruelty to children in the first degree.

Following negotiations with the State on both cases, Platt agreed to plead guilty to theft by taking, false swearing, and second-degree cruelty to children. In exchange, the State agreed, in Case No. 15-CR-611, to reduce the first-degree cruelty-to-children charge (Count 7), a felony, to the lesser-included offense of second-degree cruelty to children, a misdemeanor. The State also agreed to nolle pros the six other charges in that case, which included three counts of child molestation, two counts of aggravated assault, and one count of terroristic threats. After a plea hearing, the trial court approved the negotiated guilty plea, determined that Platt’s guilty plea was knowing and voluntary, and imposed the sentence that had been agreed upon by the parties. Specifically, Platt received a five-year sentence for theft by taking, a five-year sentence for false swearing, and a three-year sentence for second-degree cruelty to children, all of which to be served consecutively for a total sentence of 13 years.

Subsequently, on September 21, 2015, Platt filed a pro se motion to withdraw his guilty plea, summarily asserting that he received ineffective assistance of counsel. The trial court scheduled a hearing on the motion and appointed counsel to represent Platt in the matter. Platt’s newly-appointed counsel then filed an amended motion to withdraw Platt’s guilty plea, abandoning the ineffective-assistance-of-counsel claim and arguing that the plea was involuntary because the State advised Platt that he faced a sentencing range for second-degree cruelty to children that was much higher than the one he actually faced. Nevertheless, following a hearing, the trial court denied Platt’s motion. This appeal follows.

Although a guilty plea may be withdrawn any time before sentencing, “once a sentence has been entered, a guilty plea may only be withdrawn to correct a manifest injustice, and a trial court’s refusal to allow withdrawal will not be disturbed on appeal absent a manifest abuse of discretion.” Further, while the test for manifest abuse of discretion will, by necessity, vary from case to case, withdrawal of a guilty plea is necessary to correct a manifest injustice if, for example, “a defendant is denied effective assistance of counsel, or the guilty plea was entered involuntarily or without an understanding of the nature of the charges.” With these guiding principles in mind, we turn now to Platt’s specific claims of error.

1. Platt first contends that the trial court erred by failing to appoint him appellate counsel to represent him in this appeal. We agree.

We begin by noting that the Supreme Court of the United States has held that “the Sixth Amendment right to counsel in criminal prosecutions applies to every critical stage in a criminal prosecution.” And the Supreme Court of Georgia has specifically held that “the plea withdrawal proceeding is a critical stage of the criminal prosecution[,]” and absent a valid waiver of counsel, a defendant is “entitled to counsel to assist him in seeking to withdraw his guilty plea[ ].” Moreover, this Court has further held that “the right to counsel extends through the direct appeal of an order denying [a] defendant’s motion [to withdraw his guilty plea].”

As previously noted, Platt asserts that he is entitled to be represented by counsel in this appeal. Indeed, although the record does not reflect that Platt ever specifically requested the appointment of appellate counsel, “an [indigent] individual desiring an appeal [in a criminal case] need not, once a responsible state authority knows of the desire to appeal and knows of the status of indigency, specifically request appointment of appellate counsel.”

We acknowledge that our Supreme Court has explained—in the context of an indigent defendant’s right to counsel in plea-withdrawal proceedings before the trial court—that an appellate court should consider whether the absence of counsel was prejudicial to the defendant. And here, Platt was represented by counsel in his plea-withdrawal proceedings before the trial court, he has not alleged that his counsel below was ineffective, and his appeal addresses the merits of the only claim that his trial counsel preserved for appeal. Indeed, on appeal, Platt is limited to reasserting arguments that were raised before and ruled upon by the trial court. And this is exactly what he has done. Indeed, in his pro se appellate brief, Platt has raised, inter alia, the only argument that was ruled upon by the trial court—i.e., that his guilty plea was unknowing and involuntary because he was given the incorrect sentencing range for one of the three charged offenses. Nevertheless, even if Platt’s appellate brief is sufficient to allow this Court to review that claim on the merits, the Supreme Court of Georgia has cautioned that “[t]he vast majority of courts that have addressed the denial of the right to counsel at [a] critical stage in a criminal proceeding have reversed and remanded to the trial court with instructions to appoint counsel . . . .” The Supreme Court has also explained that when a defendant claims his guilty plea was not knowingly and voluntarily entered, a harmless-error analysis in the context of the denial of that defendant’s right to counsel is inappropriate. We, like the Supreme Court, “are . . . persuaded by those majority of cases holding that reversal and remand is the appropriate remedy for violations of this constitutional right.”

Thus, even if it is possible for us to consider the merits of Platt’s claims now, and even if he would not ultimately be prejudiced by proceeding pro se on appeal, we follow our Supreme Court’s direction that remanding the case for appointment of counsel is appropriate for the violation of a constitutional right.

Decided August 30, 2017.

Bartholomew C. Platt, pro se.

Peter J. Skandalakis, District Attorney, Timothy M. Marlow, Assistant District Attorney, for appellee.

2. Given our holding in Division 1 that this case must be remanded to the trial court to consider Platt’s claim that he is entitled to the appointment of appellate counsel, it is premature for this Court to address any of Platt’s remaining claims on the merits.

For all these reasons, we remand this case with direction that the trial court consider whether Platt satisfies the indigency requirement such that appointment of appellate counsel is warranted, and if so, appoint counsel to represent him on appeal.

Case remanded with direction.

Ray, R J., and Self, J., concur.

       Although the young man’s age was not stated during the plea hearing, the indictment alleged that he was under the age of 18.

       In Case No. 15-CR-611, Platt was also indicted for three counts of child molestation, two counts of aggravated assault, and one count of terroristic threats. As discussed infra, the State agreed to nolle pros those counts as part of a negotiated plea deal, and thus, they are not relevant to the instant appeal.

        Earley v. State, 310 Ga. App. 110, 112 (712 SE2d 565) (2011) (citation and punctuation omitted); accord Hall v. State, 313 Ga. App. 670, 672 (2) (722 SE2d 392) (2012).

        Stinson v. State, 286 Ga. 499, 499 (689 SE2d 323) (2010) (punctuation omitted); accord Maddox v. State, 278 Ga. 823, 826 (4) (607 SE2d 587) (2005).

       In his appellate brief, Platt contends that the trial court appointed him counsel but that his counsel later “abandoned him,” thereby forcing him to file this appeal pro se. But it is unclear from Platt’s brief whether he means that his counsel in the underlying plea-withdrawal proceedings improperly abandoned him after he filed the notice of appeal or that the court appointed new appellate counsel, who later abandoned him. In this regard, the record reflects that the trial court appointed counsel to represent Platt in the underlying plea-withdrawal proceedings, but after Platt filed his notice of appeal, the trial court did not appoint new appellate counsel. And it is also evident that Platt’s counsel in the underlying proceeding has, for whatever reason, discontinued his representation of Platt. Construing Platt’s pro se brief forgivingly, we interpret his argument to simply be that he has a constitutional right to appellate counsel, regardless of whether it is by continued representation by his counsel below or by the appointment of new counsel for this appeal. See Campbell v. State, 313 Ga. App. 436, 438 (721 SE2d 649) (2011) (“Because [the appellant] filed this appeal pro se, we will construe his brief [forgivingly].”).

        Fortson v. State, 272 Ga. 457, 458 (1) (532 SE2d 102) (2000) (citing Gerstein v. Pugh, 420 U. S. 103, 121 (III) (95 SCt 854, 43 LE2d 54) (1975)).

        Fortson, 272 Ga. at 459 (1); see Young v. State, 328 Ga. App. 91, 93 (761 SE2d 504) (2014) (noting that “the right to counsel obtains at proceedings on motions to withdraw a guilty plea”).

        Murray v. State, 265 Ga.App. 119, 120 (592 SE2d 898) (2004); see Schlau v. State, 261 Ga. App. 303, 304 (2) (582 SE2d 243) (2003) (“[T]he right to counsel continues through the direct appeal of an order denying a motion to withdraw a guilty plea.”).

        Trauth v. State, 295 Ga. 874, 875-76 (1) (763 SE2d 854) (2014) (punctuation omitted); accord Roberts v. Caldwell, 230 Ga. 223, 224 (196 SE2d 444) (1973).

        See Fortson, 272 Ga. at 460 (2) (explaining that, after determining that the trial court had a duty to inform a defendant of his right to counsel in his plea-withdrawal proceedings or to obtain a valid waiver of counsel, the appellate court’s next inquiry is whether the absence of counsel was prejudicial).

        See Amica v. State, 307 Ga.App. 276, 282 (2) (704 SE2d 831) (2010) (explaining that this Court is a court for correction of errors of law made by the trial court, which have as their bases specific rulings made by the trial court, and in the absence of such a ruling, the claim of error presents nothing for this Court to review); Holland v. State, 232 Ga.App. 284, 285 (2) (501 SE2d 829) (1998) (“This Court is a court for the correction of errors of law committed by the trial court below, and we need not nor do we consider issues presented for the first time on appeal.”).

       The trial court also construed Platt’s amended motion to withdraw his guilty plea as asserting a related claim that his prior counsel who represented him during the plea proceedings was ineffective for failing to inform him of the correct sentencing range that he faced for the cruelty-to-children charge. But the trial court rejected both claims on the same basis.

        Fortson, 272 Ga. at 460 (2) (footnote omitted).

        See id.

        Id. at 461 (2). The sole case that the State relies on in arguing that this Court should decide this appeal on the merits even though Platt does not have appellate counsel is Massey v. State, 278 Ga. App. 303 (628 SE2d 706) (2006), which the State contends is “quite similar” to this case. But Massey is distinguishable in a material respect because, in that case, although the trial court denied the defendant’s request for new counsel to represent him in his appeal from his plea-withdrawal proceedings, the defendant was still represented on appeal by his original trial counsel, and because he failed to show that his trial counsel’s continued representation on appeal prejudiced him, we decided his appeal on the merits. See Massey, 278 Ga. App. at 306 (2). Here, Platt has no legal representation on appeal, which is in violation of his constitutional rights. See, e.g., Leonard v. State, 293 Ga. App. 808, 809 (1) (668 SE2d 321) (2008); Murray, 265 Ga. App. at 120; Schlau, 261 Ga. App. at 304 (2).

        See Schlau, 261 Ga. App. at 305 (2) (vacating the trial court’s order denying the defendant’s motion for appointment of counsel to represent him on appeal from the denial of his motion to withdraw his guilty plea and remanding the case for a determination on the record as to whether the circumstances warrant appointment of appellate counsel).


text:
    A17A1199.
    THE STATE v. OSTERLOH.
    (804 SE2d 696)
   Dillard, Chief Judge.

Following a hearing, the trial court granted Christopher Oster-loh’s motion to suppress the results of a State-administered blood test. The State now appeals the trial court’s order, arguing that the court erred in finding that Osterloh did not voluntarily consent to the test. For the reasons set forth infra, we affirm.

At the outset, we note that when the facts material to a motion to suppress are disputed, “it generally is for the trial judge to resolve those disputes and determine the material facts.” This principle is well established, and our Supreme Court has identified “three corollaries of the principle, which limit the scope of review in appeals from a grant or denial of a motion to suppress in which the trial court has made express findings of disputed facts.” An appellate court generally must (1) accept a trial court’s findings unless they are clearly erroneous, (2) construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court, and (3) limit its consideration of the disputed facts to those expressly found by the trial court. Moreover, an appellate court “may also consider facts that definitively can be ascertained exclusively by reference to evidence that is uncontradicted and presents no questions of credibility, such as facts indisputably discernible from a videotape.” And we review de novo the trial court’s “application of law to the undisputed facts.”

So viewed, the record shows that on January 19, 2014, Osterloh was traveling northbound on Georgia State Route 400 when he was struck by another vehicle. Osterloh’s vehicle skidded off the roadway and stopped at the tree line, and Osterloh, who lost consciousness during the accident, awoke on the side of the road, with his head outside of the passenger window. Paramedics and firefighters responded to the scene, as did Forsyth County Sheriff’s deputies. A deputy spoke to Osterloh, who indicated he was on his way to Chicago when his car was struck three times. In response to the deputy’s questions, Oster-loh was able to provide his name and report that he had a metal rod in his leg, had hit his head in the accident, and was not on any medication. Osterloh also walked with a significant limp and indicated that he had injured his leg.

After several minutes of conversation, the deputy asked Osterloh to stand in a particular spot, and Osterloh suddenly started screaming and ran toward the road, seemingly attempting to flag down a passing vehicle. Osterloh then became uncooperative, and refused to stand where the deputy asked him to stand, instead standing near the roadway, with his arms spread open. The deputy then told Osterloh to place his hands behind his back and get down on the ground, and four deputies pinned him to the ground, where he was handcuffed. Once he was forced to the ground, Osterloh began speaking and yelling in gibberish, which officers described as “speaking in tongues” or in a never-before-heard foreign language. This continued for several minutes. The deputies told Osterloh to calm down, but he seemed unable to respond to their requests.

After Osterloh stopped yelling, the deputies rolled him onto his side so that he could breathe. First responders checked Osterloh’s vital signs and determined that he was breathing normally, but his pupils were dilated. The deputy then placed Osterloh under arrest and read Georgia’s implied-consent notice for drivers over the age of 21. Osterloh interrupted the deputy and said, “I ain’t going to trial fucking dumb ass. What you read that for?” The deputy then asked if Osterloh would submit to a State-administered blood test, and Oster-loh replied, “yeah.” The deputy did not promise Osterloh anything in exchange for a blood sample; he did not threaten Osterloh or brandish his gun. But during the reading of the notice, at least one deputy and sometimes two deputies were holding Osterloh to the ground, and Osterloh was heaving and possibly vomiting. And in fact, while he was on the ground, Osterloh vomited a purple liquid. After the reading of the implied-consent notice, Osterloh remained pinned to the ground for approximately 15 minutes, occasionally shouting in gibberish, until an ambulance arrived to transport him to the hospital. At no point did Osterloh indicate that he did not wish to submit to the blood test.

At the hospital, Osterloh was combative and had to be immobilized, including during the blood draw. Osterloh spent three days in the intensive care unit and had to be placed in a medically induced coma. In addition to his head injury, he vomited blood, had blood in his urine, and suffered from respiratory failure.

Thereafter, the State charged Osterloh, via accusation, with driving under the influence of methamphetamine (DUI per se), driving under the influence of a drug to the extent that he was a less-safe driver (DUI less safe), reckless driving, failure to maintain lane, and operating a motor vehicle too fast for conditions. Osterloh filed a motion to suppress the results of the State-administered blood test, arguing, inter alia, that he did not voluntarily consent to the blood draw.

During the hearing, both the deputy who administered the implied-consent warning and Osterloh testified. The deputy testified that Osterloh appeared to be listening to and comprehending the implied-consent notice. Osterloh, however, testified that he had almost no recollection of the immediate aftermath of the accident, including the implied-consent notice. The State also played a recording of the interaction between Osterloh and the deputies, which was captured by camera on the dashboard of a deputy’s vehicle.

At the close of the hearing, the trial court granted Osterloh’s motion to suppress. Thereafter, the court issued an order finding that Osterloh was “clearly injured” and “incapable of making any kind of rational decision.” With regard to the implied-consent notice, the trial court further expressly found that while it was being read, Osterloh was lying flat on the ground, alternately mumbling and screaming incomprehensibly, and appeared to be vomiting or choking at times. This appeal follows.

In its sole enumeration of error, the State contends that the trial court erred in granting Osterloh’s motion to suppress the results of the blood test, arguing that video evidence shows that Osterloh was fully capable of understanding and responding to the deputy’s questions and requests, including the implied-consent warning, and that Osterloh voluntarily consented to the blood test. We disagree.

It is now well established that a suspect’s right under the Fourth Amendment to be free of unreasonable searches and seizures “applies to the compelled withdrawal of blood, and the extraction of blood is a search within the meaning of the Georgia Constitution.” Generally, searches are of two types: “those conducted with a search warrant or those undertaken without one, and searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions.” Accordingly, a warrantless search is “presumed to be invalid, and the State has the burden of showing otherwise.”

It is also well settled that in the context of a DUI blood draw “a valid consent to a search eliminates the need for either probable cause or a search warrant.” And historically, Georgia’s appellate courts considered “a defendant’s affirmative response to the reading of the implied consent notice as sufficient to allow a search of his or her bodily fluids without further inquiry into the validity of the defendant’s consent.” But in Williams v. State, the Supreme Court of Georgia held that “mere compliance with statutory implied consent requirements does not, per se, equate to actual, and therefore voluntary, consent on the part of the suspect so as to be an exception to the constitutional mandate of a warrant.” Instead, the Williams Court concluded that the State must show that a suspect “gave actual consent to the procuring and testing of his blood, which would require the determination of the voluntariness of the consent under the totality of the circumstances.” And to make this determination, courts must “conduct a case-by-case analysis[.]”

Under Georgia law, “voluntariness” must reflect “an exercise of free will, not merely a submission to or acquiescence in the express or implied assertion of authority.” Consequently,

the voluntariness of consent to search is measured by evaluating the totality of the circumstances, which includes factors such as prolonged questioning; the use of physical punishment; the accused’s age, level of education, intelligence, length of detention, and advisement of constitutional rights; and the psychological impact of these factors on the accused.

In reviewing the record in this matter, including the video-recording of the deputy’s interaction with Osterloh at the scene of the accident, there is no evidence as to Osterloh’s age, level of education, or intelligence. And there is also no evidence that Osterloh was threatened or subjected to a lengthy detention. Furthermore, the evidence is clear that Osterloh responded affirmatively to the deputy’s request following the implied-consent warning.

But the uncontradicted evidence also shows that Osterloh had been in an accident, in which he sustained injuries, including a head injury so serious that he had to be placed into a medically induced coma and spend three days in the intensive care unit. Nevertheless, the State contends that there was no evidence Osterloh’s injuries made him incapable of freely and voluntarily consenting to a blood draw. But even if this were true, given the evidence of Osterloh’s significant injuries, it is the State’s burden to prove that Osterloh gave his consent freely and voluntarily.

The State also asserts that Osterloh was relaxed and calm at the time of the implied-consent notice. But this claim is belied by the video evidence upon which the State relies. While Osterloh appears to comprehend and respond to questions at the beginning of his encounter with the deputy, he is largely incoherent after he attempts to enter the roadway and is forced to the ground. And the video shows that, throughout the reading of the implied-consent notice, Osterloh is handcuffed and held to the ground by one or two deputies. During this time, although Osterloh sometimes responds to the deputy’s statements and questions, at other times he is babbling, retching, and yelling.

The State, of course, would have this Court focus primarily on Osterloh’s affirmative response to the deputy’s question and ignore the other evidence. This, we cannot do. Indeed, in evaluating the totality of these circumstances, we are mindful that “in the absence of evidence of record demanding a finding contrary to the judge’s determination, the appellate court will not reverse the ruling sustaining a motion to suppress.” And here, the evidence supports the trial court’s findings and certainly does not demand a conclusion contrary to the court’s ruling.

Finally, and perhaps most importantly, nothing prevents the State from obtaining a warrant to draw a suspect’s blood in situations such as this, in which the voluntariness of a suspect’s consent is difficult to determine. And while obtaining a warrant no doubt imposes more of a burden on law-enforcement officers than simply reading the implied-consent notice, in those DUI “investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

Decided August 30, 2017.

William A. Finch, Solicitor-General, Caroline Yi, Assistant Solicitor-General, for appellant.

Savoy Law Firm, David R. Savoy, for appellee.

For all these reasons, we affirm the trial court’s order granting Osterloh’s motion to suppress the results of the blood test.

Judgment affirmed.

Ray, P J., and Self, J., concur.

        Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015); accord State v. Bowman, 337 Ga. App. 313, 313 (787 SE2d 284) (2016).

        Hughes, 296 Ga. at 746 (1); accord Bowman, 337 Ga. App. at 313.

        Hughes, 296 Ga. at 746 (1); accord Bowman, 337 Ga. App. at 313.

        State v. Allen, 298 Ga. 1, 2 (1) (a) (779 SE2d 248) (2015) (punctuation omitted); see also Hughes, 296 Ga. at 746 (1) n.5 (noting that “to the extent that material facts could be discerned by appellate court from video recording, no deference to findings of trial court was required”).

        State v. Conner, 322 Ga. App. 636, 637 (745 SE2d 837) (2013) (punctuation omitted); accord Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

        See OCGA § 40-6-391 (a) (6).

        See OCGA § 40-6-391 (a) (2).

        See OCGA § 40-6-390.

        See OCGA § 40-6-48 (1).

        See OCGA § 40-6-180.

        See OCGA § 5-7-1 (a) (4) (permitting a direct appeal when the State’s evidence has been ruled inadmissible).

        Williams v. State, 296 Ga. 817, 819 (771 SE2d 373) (2015); see also Cooper v. State, 277 Ga. 282, 285 (III) (587 SE2d 605) (2003) (“A suspect’s Fourth Amendment right to be free of unreasonable searches and seizures applies to the compelled withdrawal of blood.” (punctuation omitted)).

        Williams, 296 Ga. at 819; see also Coolidge v. New Hampshire, 403 U. S. 443, 454-55 (II) (91 SCt 2022, 29 LE2d 564) (1971) (noting that searches conducted without prior approval of a judge or magistrate are per se unreasonable).

        Williams, 296 Ga. at 819; see also Mincey v. Arizona, 437 U. S. 385, 393-94 (I) (98 SCt 2408, 57 LE2d 290) (1978) (noting that warrants are generally required to search a person’s home or person).

        Williams, 296 Ga. at 821; see also Cooper, 277 Ga. at 291 (VI) (noting that a suspect’s valid consent to search eliminates the need for either probable cause or a search warrant).

        Kendrick v. State, 335 Ga. App. 766, 769 (782 SE2d 842) (2016); see, e.g., Meiklejohn v. State, 281 Ga. App. 712, 714 (637 SE2d 117) (2006), abrogated by Williams, 296 Ga. at 823.

       296 Ga. 817.

        Id. at 822.

        Id. at 823.

        Kendrick, 335 Ga. App. at 769.

        Bowman, 337 Ga. App. at 317 (punctuation omitted).

        Id. (punctuation omitted); accord Kendrick, 335 Ga.App. at 769.

        See Williams, 296 Ga. at 821 (“[W]hen relying on the consent exception to the warrant requirement, the State has the burden of proving that the accused acted freely and voluntarily under the totality of the circumstances.” (punctuation omitted)).

        See id. at 823 (requiring that courts determine the voluntariness of the consent “under the totality of the circumstances”).

        State v. Durrence, 295 Ga. App. 216, 218 (671 SE2d 261) (2008) (punctuation omitted); accord Anderson v. State, 267 Ga. 116, 119 (2) (475 SE2d 629) (1996).

        See State v. Jung, 337 Ga. App. 799, 802-03 (788 SE2d 884) (2016) (holdingthat evidence the defendant was highly intoxicated, confused, and unable to follow directions supported trial court’s grant of defendant’s motion to suppress); Bowman, 337 Ga. App. at 317-18 (holdingthat, despite evidence that defendant appeared to understand the implied-consent notice, totality of circumstances, including the seriousness of the accident and defendant’s intoxication level, which required him to be taken to the hospital rather than jail, supported trial court’s grant of defendant’s motion to suppress). But see State v. Depol, 336 Ga. App. 191, 198-200 (784 SE2d 51) (2016) (reversing trial court’s grant of defendant’s motion to suppress where video evidence showed that defendant, despite being intoxicated, was capable of understanding what was said to him and responding appropriately).

        Missouri v. McNeely, 569 U. S. 141, 152 (II) (B) (133 SCt 1552, 185 LE2d 696) (2013); see also McDonald v. United States, 335 U. S. 451, 456 (69 SCt 191, 93 LE 153) (1948) (“We cannot... excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made [the search] imperative”).


author: RAY, Presiding Judge.

text:
    A17A0816.
    HEITKAMP v. THE STATE.
    (804 SE2d 702)
   RAY, Presiding Judge.

Following an incident in Cobb County where police officers discovered contraband after entering an apartment without a warrant, Patrick Heitkamp was charged with one count each of possession of more than one ounce of marijuana, possession of marijuana with intent to distribute, possession of a controlled substance, theft by receiving, and two counts of possession of methamphetamine. The trial court denied Heitkamp’s motion to suppress the contraband, and this Court granted Heitkamp’s application for interlocutory review of that order. On appeal, Heitkamp argues that the officers lacked probable cause, exigent circumstances or any other legal justification for entering the apartment and that the warrantless entry was illegal. He further argues that consent to the search of his person was obtained pursuant to the warrantless entry and was, therefore, inadmissible. Because we find that there was not probable cause for the arrest of Heitkamp or the other residents of the apartment at the time of entry into the apartment, we reverse.

In reviewing the grant or denial of a motion to suppress, we construe the evidence most favorably toward upholding the trial court’s findings and judgment. Leming v. State, 235 Ga. App. 710, 711 (1) (510 SE2d 364) (1998). The trial court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous. State v. Bowen, 231 Ga. App. 95, 95 (498 SE2d 570) (1998).

The evidence adduced at the motion to suppress hearing showed that at 10:30 p.m. on April 23,2015, Officer (now Detective) McElwain of the Cobb County Police Department was dispatched to the Chattahoochee Apartment complex after Richard Hall, the apartment’s maintenance man, called 911. Hall reported a suspicious white vehicle backed into a parking spot. Because of the heavy foot traffic between the vehicle and one of the apartment buildings, Hall suspected drug activity He did not smell any illegal substances, nor did he observe any hand-to-hand transactions. However, he observed a lot of people leaning inside the vehicle.

Officer McElwain and a second officer ran the vehicle tag number on their way to the apartment complex and discovered that the vehicle had been reported stolen. Once the officers arrived, Hall described the man who had been inside the vehicle as a white male wearing jeans and no shirt, and with tattoos. The location of the tattoos on the body was not specified.

Hall believed that the tattooed male had entered the 3800 building of the apartment complex. Officer McElwain and the other officer proceeded to the building and began knocking on doors. One of the residents told the officers he had seen a tattooed white male wearing jeans and without shoes walking a large, tan dog in front of the same building earlier. The resident believed this man lived in one of the apartments downstairs. The officers knocked on approximately eight doors before reaching the apartment in which Heitkamp was found.

When Heitkamp opened the door, a tan dog ran out of the apartment. At the same time, two white males who were standing behind Heitkamp ran further into the apartment. One of the men, later identified as Christopher Barfield, matched the description of the man believed to have been seen in the stolen vehicle; he was a white male with visible tattoos on the back of his arms, and he was wearing jeans. However, Barfield was not shirtless, as he wore a black tank top. Barfield ran around the corner, where the officers could no longer see him. The other white male ran into the living room, while Heitkamp turned and walked away from the door, though not at a fast pace.

Officer McElwain testified at the motion to suppress hearing that the whole thing occurred so fast that there was not an opportunity to say anything before everyone took off. He explained that he entered the apartment at that moment because he believed that Barfield was their suspect since he ran to another part of the apartment as soon as he saw the officers and because he matched the description given by Hall and the other resident. Officer McElwain further testified that he believed that he had probable cause to arrest Barfield for theft of the vehicle and that he believed Barfield posed a threat when he retreated into a room in the apartment where the officers could no longer see him. He testified he had reason to fear for his and the other officer’s safety at this point because his experience led him to conclude that weapons might be involved when there is a stolen vehicle involved and because the men ran away at the sight of the officers. However, he acknowledged there was no indication that weapons were present nor did he notice any threatening behavior from Heitkamp or anyone else.

After entering the apartment, Officer McElwain observed methamphetamine in plain sight on multiple surfaces in the apartment. He and two other officers then removed the apartment’s occupants, secured the apartment, applied for a search warrant, and interviewed the five individuals that were in the apartment after they had been given their Miranda warning. Officer McElwain also patted down the individuals, including Heitkamp, before the execution of the search warrant. He felt a large bulge in Heitkamp’s front right pocket. He asked Heitkamp if he could search his person, and Heitkamp consented. Officer McElwain pulled a clear bag containing 16.5 grams of methamphetamine from the pocket. Upon the search of the apartment pursuant to a warrant, officers found a laptop bag filled with 36 grams of marijuana and a scale near where Heitkamp slept, as well as lines of methamphetamine, scales, and small baggies in essentially every room of the apartment.

This Court has recognized that a private home is “an unquestionable zone of privacy under the Fourth Amendment, and when a residence is involved, no amount of probable cause can justify a war-rantless search or seizure absent exigent circumstances.” (Citation and punctuation omitted.) State v. Sims, 240 Ga. App. 391, 392 (523 SE2d 619) (1999). Therefore, the State bore the burden of establishing that the officers had both probable cause and exigent circumstances to justify their intrusion into the apartment. See Snider v. State, 292 Ga. App. 180, 182 (663 SE2d 805) (2008) (“It follows that the officers’ entry into the hotel room without consent or a warrant violated [the defendant’s] Fourth Amendment rights, unless the evidence showed that the officers had both probable cause for an arrest or search inside the room and exigent circumstances”) (citation omitted).

1. Heitkamp argues that the trial court erred by denying his motion to suppress because the officers did not have probable cause to arrest Barfield and, thus, that the warrantless entry of the apartment was not justified. Based upon these facts, we do not believe the police had enough information at the time they encountered Barfield to conclude that he was the person seen in the stolen car. Certainly, they possessed a reasonable suspicion to further investigate that possibility, but we cannot say they had probable cause to arrest him at that time or to enter the home without a warrant.

This Court has explained that “[pjrobable cause exists if the arresting officer has knowledge and reasonably trustworthy information about facts and circumstances sufficient for a prudent person to believe the accused has committed an offense.” (Citation and punctuation omitted.) Brown v. State, 262 Ga. 728, 729 (2) (a) (425 SE2d 856) (1993). Accordingly,

when a court considers whether an officer had probable cause to arrest a suspect, the court must focus on the facts and circumstances then known to the officer, and it must inquire whether those facts and circumstances could lead a prudent person — that is, a reasonable officer — to conclude that the suspect probably has committed an offense.

(Citation omitted; emphasis in original.) Hughes v. State, 296 Ga. 744, 748-749 (2) (770 SE2d 636) (2015).

The probable[ ]cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. The substance of all the definitions of probable cause is a reasonable ground for belief of guilt, and the belief of guilt must be particularized with respect to the person to be searched or seized. To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause. In this context, a probability is less than a certainty but more than a mere suspicion or possibility

(Citations and punctuation omitted.) Elvine v. State, 334 Ga. App. 235, 237-238 (1) (779 SE2d 10) (2015). “Although we owe substantial deference to the way in which the trial court resolved disputed questions of material fact, we owe no deference at all to the trial court with respect to questions of law, and instead, we must apply the law ourselves to the material facts.” (Citation omitted.) Hughes, supra at 750 (2).

Heitkamp argues that, at best, the information the officers had at that moment gave rise only to a mere suspicion or possibility that Barfield had committed a crime. We agree. The only information officers had that connected Barfield to the stolen car was a phone call from Hall, the apartment’s maintenance man, that he suspected drug activity due to foot traffic to and from a certain car parked in the apartment complex’s parking lot and Hall’s “vague description” of the occupant in the car, describing him as a “white male, wearing jeans, no shirt and tattoos.” Although Hall noted that he believed the man had gone into the 3800 building, Hall did not provide police with a description of the male’s age, hair, or the location of his tattoos. Officers began knocking on doors of the 3800 building, and another resident informed them that the resident had noticed a tattooed white male walking a tan dog in front of the building earlier that day When the officers knocked on Barfield’s apartment door, Heitkamp opened the door and Barfield retreated further into the apartment upon seeing the officers.

[W]hen probable cause is based, at least in part, upon information supplied by an informant, the State must demonstrate that the information is reliable. The information, however, is not to be judged by any rigid test. Generally, probable cause is determined by the circumstances surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability A deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.

(Citation and punctuation omitted.) Lopez v. State, 292 Ga. App. 518, 520 (664 SE2d 866) (2008). Here, the officers did not testify that they knew Hall or that he had a reputation for being truthful and reliable. However, even if Hall were determined to be a reliable source, he provided the officers only with a “vague description” of the man he saw inside the vehicle. A description that could describe any number of occupants of that apartment complex — a tattooed, white male wearing jeans. Compare Ansley v. State, 325 Ga. App. 226, 232 (2) (a) (750 SE2d 484) (2013) (officers had probable cause to arrest defendant when victim gave a detailed description of the robber, including his clothing and beard, and the direction in which he fled from the building). Although the State argues that probable cause existed because Barfield fled further into the apartment upon sight of the officers, flight alone is insufficient to warrant a forcible stop of an individual. Harris v. State, 205 Ga. App. 813, 813 (1) (423 SE2d 723) (1992). See also In the Interest of J. L. G., 209 Ga. App. 565, 566-567 (434 SE2d 126) (1993) (flight, when combined with other circumstances, may give rise to probable cause). Further, it is well established that “mere presence in an area of suspected crime is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” (Citations, punctuation and footnote omitted.) Ewumi v. State, 315 Ga. App. 656, 660-661 (1) (727 SE2d 257) (2012) (the fact that defendant was walking away from and ignoring the officer, was present in a high-crime area, and was walking in a slumped position while wearing a hooded sweatshirt was not sufficient to make an objective determination that defendant was about to be engaged in criminal activity). See also Powell v. State, 163 Ga.App. 801, 802-803 (295 SE2d 560) (1982) (evidence that defendant was observed looking at roadway near a field with freshly planted marijuana plants did not establish probable cause for arrest).

Based on the evidence in this case, we find that the police officers did not have probable cause to conclude that Barfield was the occupant of the stolen car or had committed any other crime before they entered the apartment and saw the contraband. The fact that Barfield met the vague description given by Hall and fled upon sight of the officers, without more, was not enough to give rise to probable cause to arrest. Compare In the Interest of J. L. G., supra (probable cause existed to detain and question defendant when officers received an anonymous tip that a shirtless black male was acting suspiciously in a specific location, a police officer saw a shirtless black male in that specified location put his hand in his pocket and began to run when the officer exited his vehicle, the man refused the officers’ commands to halt, and numerous small packages of drugs were discovered on the ground near where the defendant fell. However, the defendant was not in his home when he was encountered).

Although Hall’s tip in the instant case certainly warranted police investigation, further observation and corroboration was required to connect Barfield to the stolen car before officers had probable cause to arrest him. Accordingly, we find that the warrantless intrusion into the apartment violated Heitkamp’s Fourth Amendment rights, and the trial court erred by denying the motion to suppress.

Decided August 31, 2017.

Benjamin D. Goldberg, for appellant.

D. Victor Reynolds, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.

2. As a result of our holding in Division 2, we need not address Heitkamp’s remaining enumerations of error.

Judgment reversed.

Dillard, C. J., and Self, J., concur.

       Certainly, in our society today, the wearing of jeans and possessing tattoos is a very common occurrence.

       For example, had Hall specifically identified Barfield as being the person whom he had seen in the stolen car, our analysis and conclusion may have been different. We also note that the officers could have waited until Barfield exited the apartment to detain and question him.


author: Barnes, Presiding Judge.

text:
    A17A1188.
    A17A1189.
    A17A1190.
    MUNYE v. THE STATE. BRICKHOUSE v. THE STATE. WILLIAMS v. THE STATE.
    (803 SE2d 775)
   Barnes, Presiding Judge.

These appeals arise out of the appellants’ convictions for misdemeanor traffic offenses in the now-defunct Recorder’s Court of DeKalb County (the “DeKalb Recorder’s Court”). In Case No. A17A1188, Adan Munye appeals the dismissal of his motion to vacate his convictions for driving with a suspended license on the ground that they were void. Munye also appeals the denial of his motion to vacate his sentences for those offenses as void. In Case No. A17A1189, Brandon Brickhouse appeals the denial of his motion to vacate his sentence for driving with a suspended license as void, and in Case No. A17A1190, Christina Williams appeals the denial of her motion to vacate her sentences for driving without valid insurance and driving with a suspended registration as void.

For the reasons discussed below, we conclude that Munye was not entitled to pursue his motion to vacate his convictions because such a motion is not an appropriate remedy in a criminal case, and his motion could not be construed as a timely motion in arrest of judgment or other alternative motion. We further conclude that Munye and the other appellants were not entitled to pursue their motions to vacate their sentences because their motions were not the proper procedural vehicles for challenging the subject matter jurisdiction of the DeKalb Recorder’s Court over misdemeanor traffic offenses, which is the dispositive issue in these cases. Accordingly, we must dismiss these appeals for lack of jurisdiction.

Case No. A17A1188

1. On June 12, 2014, Munye was issued a uniform traffic citation for committing the misdemeanor traffic offense of driving with a suspended license in violation of OCGA § 40-5-121 (a). On June 19, 2014, Munye was issued another uniform traffic citation for committing the same offense.

Munye was tried for the June 19 misdemeanor traffic offense in a bench trial before the DeKalb Recorder’s Court on September 2, 2014. He was found guilty and sentenced to 12 months (with the first five days in custody and the remainder on probation), and ordered to pay a $600 fine and other fees.

In late September 2014, for reasons somewhat unclear in the record, Munye was taken into custody for the June 12 misdemeanor traffic offense. On October 7, 2014, Munye appeared before the DeKalb Recorder’s Court, entered a plea of nolo contendere, and was sentenced to time already served in jail.

Following his convictions and sentences, Munye did not file an application for a writ of certiorari to the Superior Court of DeKalb County within 30 days of the final determination of his cases in DeKalb Recorder’s Court. See OCGA §§ 5-4-3; 5-4-6 (a). Several months later, in June 2015, Munye filed a motion in DeKalb Recorder’s Court seeking “relief for lack of subject matter jurisdiction” and requesting that his two convictions and sentences for the misdemeanor traffic offense of driving with a suspended license be vacated as void ab initio.

In his motion, Munye contended that both of his underlying convictions and sentences were void and should be vacated because the DeKalb Recorder’s Court lacked subject matter jurisdiction to adjudicate and impose punishment for misdemeanor state traffic offenses. According to Munye, the DeKalb Recorder’s Court purported to exercise jurisdiction over all misdemeanor state traffic offenses, which was inconsistent with the 1959 local act that created the court and the Georgia Constitution of 1983. Munye asserted that under the local act and the Georgia Constitution, the DeKalb Recorder’s Court had jurisdiction to adjudicate county ordinance violations and certain state traffic laws if adopted into the county’s ordinances but not jurisdiction “to enforce state law as such,” as the court had done in his two cases. Munye also argued that his sentences were void because they exceeded the punishment that could be imposed by the DeKalb Recorder’s Court for county ordinance violations found in the DeKalb County Code of Ordinances. Munye alleged that he had spent time in jail, had paid improper fines and costs, and continued to have his license suspended by the Georgia Department of Driver Services because of his unlawful convictions and sentences.

The State opposed Munye’s motion and sought to have it dismissed. The State argued that Munye’s convictions were final and no longer subject to direct appeal, that Munye’s motion to vacate his judgment of conviction was not an appropriate remedy in a criminal case, and that Munye’s motion could not be construed asa timely filed motion in arrest of judgment or other alternative motion for seeking redress for allegedly void convictions. The State further argued that Munye’s purported challenge to his sentences as void was in effect a challenge to his convictions and thus was procedurally improper.

Munye’s motion was heard by a state court judge because of new legislation abolishing the DeKalb Recorder’s Court. Following a hearing, the state court entered an order dismissing Munye’s motion to vacate his convictions. The state court ruled that a motion to vacate a void conviction is not an appropriate remedy under Georgia law and concluded that Munye’s motion could not be construed as a timely and properly filed motion in arrest of judgment or other alternative motion. With respect to Munye’s motion to vacate his sentence, the trial court denied the motion, concluding that Munye’s sentences fell within the statutory range of punishment for the misdemeanor traffic offense of driving with a suspended license and thus were not void. Munye now directly appeals these rulings by the state court.

(a) Munye contends that the state court erred in dismissing his motion to vacate his criminal convictions as void. We disagree.

It is well settled that a motion to vacate a judgment of conviction as void is not an appropriate remedy in a criminal case. See Harper v. State, 286 Ga. 216, 217-218 (1) (686 SE2d 786) (2009); Matherlee v. State, 303 Ga. App. 765, 766 (694 SE2d 665) (2010). Rather, a defendant attacking his underlying conviction is limited to timely filing a motion for new trial, a direct appeal from his criminal conviction, a motion to withdraw his guilty plea, an extraordinary motion for new trial, a motion in arrest of judgment, or a petition for the writ of habeas corpus. See von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013); Harper, 286 Ga. at 217-218 (1); Collins v. State, 338 Ga. App. 886, 888 (1), n. 8 (792 SE2d 134) (2016). If Munye’s motion cannot be construed as one of these alternative filings, his direct appeal from the denial of his motion to vacate his convictions is subject to dismissal. See Williams v. State, 287 Ga. 192, 194 (695 SE2d 244) (2010); Harper, 286 Ga. at 218 (2); Jones v. State, 322 Ga. App. 269, 272 (1) (745 SE2d 1) (2013).

Of the alternative filings listed above, Munye’s sole argument is that his motion should have been construed as a timely motion in arrest of judgment under OCGA § 17-9-61. However, his motion to vacate his conviction as void cannot be construed asa motion in arrest of judgment or other alternative motion attacking his underlying conviction in light of OCGA § 40-13-33 (a). That statutory subsection provides:

Any challenge to a misdemeanor conviction of any of the traffic laws of this state or the traffic laws of any county or municipal government which may be brought pursuant to Chapter 14 of Title 9 [habeas corpus] must be filed within 180 days of the date the conviction becomes final.

OCGA § 40-13-33 (a). A defendant’s failure to comply with the 180-day time limitation divests a court of jurisdiction to hear the challenge to the traffic conviction. OCGA § 40-13-33 (d).

Our Supreme Court has held that the 180-day limitation period contained in OCGA § 40-13-33 (a) does not apply “only to attacks by petition for habeas corpus relief.” Brown v. Earp, 261 Ga. 522, 522 (407 SE2d 737) (1991). Rather, the limitation period applies broadly to any challenge to a misdemeanor traffic conviction that could have been brought by means of a petition for habeas corpus, “regardless of whether the challenge was actually made by that procedure.” Id. at 523. See Earp v. Brown, 260 Ga. 215, 216 (2) (a) (391 SE2d 396) (1990); Allen v. State, 267 Ga. App. 85, 88 (4) (598 SE2d 832) (2004) (whole court); Jeter v. State, 269 Ga. App. 266, 267 (603 SE2d 783) (2004); Walker v. State, 199 Ga. App. 701, 702-703 (405 SE2d 887) (1991). Accordingly, pursuant to OCGA § 40-13-33 (a), any challenge brought by Munye to his misdemeanor traffic convictions that could have been brought by means of habeas corpus had to be brought within 180 days of his convictions becoming final. See id. And, here, Munye could have challenged his misdemeanor traffic convictions by means of habeas corpus.

Munye’s claim was that the DeKalb Recorder’s Court lacked subject matter jurisdiction to adjudicate and impose punishment for misdemeanor traffic offenses, and a collateral challenge to a conviction based on the alleged lack of jurisdiction of a recorder’s court can be made by a petition for habeas corpus. See Gibson v. Gober, 204 Ga. 714 (51 SE2d 664) (1949); Clarke v. Johnson, 199 Ga. 163 (33 SE2d 425) (1945); Brooks v. Sturdivant, 177 Ga. 514 (170 SE 369) (1933). See also Walker, 199 Ga. App. at 703 (noting that defendant “could have challenged his misdemeanor traffic conviction by habeas corpus petition since he attacked the jurisdiction of the probate court”). A challenge to a nolo plea also can be made by a petition for habeas corpus. See Allen, 267 Ga. App. at 88. Because Munye could have pursued a challenge to his misdemeanor traffic convictions by means of a habeas corpus petition, the 180-day time limitation imposed by OCGA § 40-13-33 (a) applied in this case. See Brown, 261 Ga. at 523; Allen, 267 Ga. App. at 88; Jeter, 269 Ga. App. at 267; Walker, 199 Ga. App. at 702-703.

Munye undisputedly filed his motion attacking his misdemeanor traffic convictions more than 180 days after his convictions became final in DeKalb Recorder’s Court, and thus his motion was time-barred under OCGA § 40-13-33 (a), no matter how that motion was construed. Consequently, contrary to Munye’s argument on appeal, his motion could not be construed as a timely filed motion in arrest of judgment, and he was not entitled to pursue his claim attacking his criminal convictions as void. His direct appeal of the state court’s dismissal of his motion to vacate his convictions therefore must be dismissed. See Williams, 287 Ga. at 194; Harper, 286 Ga. at 218 (2); Jones, 322 Ga. App. at 272 (1).

(b) Munye next contends that the state court erred in denying his motion to vacate his sentences as void. According to Munye, even if the state court lacked jurisdiction to vacate his underlying convictions, the court should have separately vacated his sentences as void and resentenced him. We disagree under the circumstances of this case.

While a motion to vacate a void judgment is not an appropriate remedy in a criminal case, a trial court may vacate a void sentence at any time. Rooney v. State, 287 Ga. 1, 2 (2) (690 SE2d 804) (2010). But “a defendant cannot assert a claim that his conviction was unlawful ... simply by dressing it up as a claim that his sentence was void.” von Thomas, 293 Ga. at 572 (2). A sentence is void only if “the court imposes [a] punishment that the law does not allow,” Collins, 338 Ga. App. at 888 (1) (citation and punctuation omitted), and where “the sentence imposed falls within the statutory range of punishment,” it is not void. Spargo v. State, 332 Ga.App. 410, 411 (773 SE2d 35) (2015) (citation and punctuation omitted). See Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004); Spencer v. State, 309 Ga. App. 630, 631 (2) (710 SE2d 837) (2011). A direct appeal does not he from the denial of a motion to vacate a sentence “unless it raises a colorable claim that the sentence is, in fact, void.” Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). Hence, if a defendant does not raise a colorable void-sentence claim, his appeal is subject to dismissal. Id. at 120.

Notably, in the present case, Munye does not argue that his sentences exceeded the statutory range of punishment for the state law misdemeanor traffic offense of driving with a suspended license found in OCGA § 40-5-121 (a). Rather, Munye contends that the sentences imposed upon him should have been restricted to the more limited punishments available for county ordinance violations contained in the DeKalb County Code of Ordinances. See DeKalb County Code of Ordinances, Appx. B, Local Constitutional Amendments, Local Acts and General Laws of Local Application, Art. XII, Div. 2, § 667 (a) (stating that for a single violation of a county ordinance, “the amount of the fine shall not exceed the sum of one thousand dollars ($1,000.00) and the period of any imprisonment or labor shall not exceed one hundred twenty (120) days; and provided, further, that the judge may probate any part or all of any punishment imposed pursuant to this subsection.”).

The record reflects, however, that Munye was not prosecuted and convicted in DeKalb Recorder’s Court of county ordinance violations, but rather for state law traffic misdemeanors over which the DeKalb Recorder’s Court claimed to have jurisdiction to adjudicate and impose punishment. Both of Munye’s uniform traffic citations accused him of violating OCGA § 40-5-121 under “State Law” rather than under a “Local Ordinance,” and Munye was found guilty and pled nolo contendere to the state traffic offenses specified in those citations. Moreover, the DeKalb Recorder’s Court held itself out as having jurisdiction over state law traffic misdemeanors, not merely county ordinance violations, as reflected in a standing order issued by the chief judge of that court stating that “Recorder’s Court is vested with jurisdiction over ... all of Title 40 of the Official Code of Georgia with the exception of vehicular manslaughter.”

Under these circumstances, the issue in this case was not whether Munye’s state law misdemeanor sentences exceeded the statutory range of punishment and thus were void; as previously noted, Munye’s sentences did not exceed the range of punishment set forth in OCGA § 40-5-121 (a). See Jones, 278 Ga. at 670; Spargo, 332 Ga. App. at 411; Spencer, 309 Ga. App. at 631 (2). Rather, the dispositive issue was whether the DeKalb Recorder’s Court had subject matter jurisdiction to adjudicate and impose punishment for state law traffic misdemeanors or instead was limited to adjudicating and imposing punishments for county ordinance violations. But any “challenge to ... [a] trial court’s jurisdiction to hear the case is a challenge to the defendant’s underlying conviction rather than to the defendant’s sentence.” Richardson v. State, 334 Ga. App. 344, 348 (3) (779 SE2d 406) (2015). See Harper, 286 Ga. at 216 (claim that trial court “lacked jurisdiction to hear his case” was challenge to defendant’s conviction rather than his sentence); Spargo, 332 Ga. App. at 411, n. 2 (“A motion to vacate void judgment on the basis that the judgment was imposed by a court that was not the proper venue for the prosecution was a challenge to the defendant’s conviction, not his sentence.”); Matherlee, 303 Ga. App. at 766, n. 3 (claim that trial court’s judgment was void for lack of subject matter jurisdiction was challenge to conviction). Munye’s motion to vacate his sentence thus “was not the proper procedural vehicle for asserting his claims,” which went to whether the DeKalb Recorder’s Court had jurisdiction over the misdemeanor offenses for which he was tried and punished. Richardson, 334 Ga. App. at 349 (3).

Because Munye’s sentences did not exceed the statutory parameters for punishment and any challenge to the subject matter jurisdiction of the DeKalb Recorder’s Court was a challenge to his underlying convictions rather than his sentences, Munye failed to raise a colorable claim that his sentences were void. The trial court’s denial of Munye’s motion to vacate his sentences therefore is not subject to direct appeal and must be dismissed. Burg, 297 Ga. App. at 119-120.

Case Nos. A17All89 and Al 7A1190

2. Like Munye, Brickhouse and Williams were charged with misdemeanor traffic offenses in the DeKalb Recorder’s Court and were sentenced for those offenses after they were found guilty at bench trials or entered pleas before that court. Their specific convictions and sentences were as follows.

Brickhouse, similar to Munye, was issued a uniform traffic citation for the misdemeanor traffic offense of driving with a suspended license in violation of OCGA § 40-5-121 (a). On August 14, 2014, Brickhouse entered a plea of nolo contendere in the DeKalb Recorder’s Court. Brickhouse was ordered to pay a $1,000 fine and other costs, and he was sentenced to 12 months of probation, subject to early termination if the payment obligations and other probation conditions were met. Additionally, OCGA § 40-5-121 (b) (1) required that Brickhouse’s license be suspended for an additional six months as a result of his conviction, subject to his payment of a reinstatement fee.

Williams was issued uniform traffic citations for the misdemeanor traffic offenses of driving without valid insurance in violation of OCGA § 40-6-10 (b) and driving with a suspended registration in violation of OCGA § 40-6-15 (a). On December 3, 2014, Williams was tried before the DeKalb Recorder’s Court and was found guilty of both offenses. Williams was sentenced to two 12-month terms of probation (to run consecutive for a total of 24 months) and ordered to pay a $500 fine plus court costs or perform 50 hours of community service for each offense (for a total of $1,000 in fines plus court costs or 100 hours of community service). Her driver’s license was suspended as a special condition of her probation.

After the DeKalb Recorder’s Court was abolished, on August 7, 2015, Brickhouse filed a motion in the Traffic Division of the State Court of DeKalb County seeking to have his sentence vacated as void so that he could thereafter withdraw his plea of nolo contendere. On that same date, Williams filed a motion seeking to have her sentences vacated as void. The same state court judge who heard Munye’s motion also denied the motions filed by Brickhouse and Williams.

Brickhouse and Williams now appeal the trial court’s denial of their motions to vacate their sentences as void. As with Munye, however, the issue in Brickhouse and Williams’ cases is not whether their sentences for their misdemeanor traffic offenses fell within the statutory parameters for punishment — they undisputedly did. See OCGA §§ 40-5-121 (a); 40-6-10 (b); 40-6-15 (b). Instead, the disposi-tive issue is whether the DeKalb Recorder’s Court had subject matter jurisdiction to adjudicate and impose punishment for state law traffic misdemeanors rather than merely county ordinance violations. Thus, Brickhouse and Williams’ claims could not be pursued through a motion to vacate a void sentence, for the same reasons discussed supra in Division 1 (b). Consequently, Brickhouse and Williams failed to raise a colorable claim that their sentences were void, and their appeals from the denial of their motions to vacate their sentences must be dismissed. Burg, 297 Ga. App. at 119-120.

Decided August 1, 2017

Reconsideration denied September 5, 2017

Troy P. Hendrick; McDonald & Cody, Douglas W. McDonald, Jr.; The Moore Law Firm, S. Leighton Moore III, for appellants.

Donna C. Stribling, Solicitor-General, Wystan B. Getz, Assistant Solicitor-General, for appellee.

Appeals dismissed.

McMillian and Mercier, JJ., concur.

       The appellants did not include enumerations of error in their briefs in violation of Court of Appeals Rule 25 (a) (2). Nevertheless, we will address the appellants’ arguments to the extent that we are able to discern them from their notices of appeal and the record. See OCGA § 5-6-48 (f).

       The appeals were originally filed in the Supreme Court of Georgia, which transferred them to this Court.

       Munye also was sentenced to three days to serve (to run concurrently with his five-day sentence) for contempt of court for being disruptive in court and disobeying an order to cease talking.

       Application for a writ of certiorari pursuant to OCGA § 5-4-3 was the appropriate procedure for obtaining direct review of a final decision of the DeKalb Recorder’s Court. See Smith v. Gwinnett County, 247 Ga. App. 888, 889 (1) (545 SE2d 147) (2001). See also DeKalb County Code of Ordinances, Appx. B, Local Constitutional Amendments, Local Acts and General Laws of Local Application, Art. XII, Div. 2, § 670 (“Review of any final order or judgment of said recorder’s court shall be by certiorari to the superior court of DeKalb County in the manner prescribed by law for certiorari from justice courts . . . .”).

       In 2015, the General Assembly enacted legislation creating a new Traffic Division of the State Court of DeKalb County to hear all cases involving violations of the state traffic laws in that county. Ga. L. 2015, p. 3501 et seq. The Recorder’s Court of DeKalb County was abolished and all pending actions relating to the violation of traffic offenses were transferred to the Traffic Division of the State Court of DeKalb County. Ga. L. 2015, pp. 3501, 3504. Subsequently, on October 30, 2015, the Chief Judge of the State Court of DeKalb County issued an order recusing all judges on that court from the appellants’ cases challenging the jurisdiction of the DeKalb Recorder’s Court to enter misdemeanor sentences. The appellants’ cases thereafter were reassigned to a judge in the State Court of Fulton County. See Uniform State Court Rule § 25.4 (E); Uniform State Court Rules, Note (“Uniform Rules for the Superior Courts shall be applicable in State Courts” with certain exceptions).

       Munye contends that a motion to vacate a void conviction is proper under OCGA § 17-9-4, but that contention was expressly rejected by our Supreme Court in Harper, 286 Ga. at 217-218 (1). See Matherlee, 303 Ga. App. at 766.

       OCGA § 17-9-61 (a) provides that “[w]hen a judgment has been rendered, either party may move in arrest thereof for any defect not amendable which appears on the face of the record or pleadings.”

       “While the chief use of habeas corpus has been to seek the release of persons held in actual, physical custody in prison or jail, the remedy has in modern times been made available where there are significant restraints on the petitioner’s liberty other than physical custody.” Hardison v. Martin, 254 Ga. 719, 720-721 (1) (334 SE2d 161) (1985) (citation and punctuation omitted). Suspension or revocation of a driver’s license is a significant restraint on liberty, see id. at 721 (1), and Munye alleged in his motion that he continued to have his license suspended as a result of his convictions. See OCGA § 40-5-121 (b) (1) (requiring additional six-month suspension of driver’s license for conviction of driving with a suspended license).

       OCGA § 17-9-61 (b) provides that a motion in arrest of judgment “must be made during the term at which the judgment was obtained.” The State argues that a motion in arrest of judgment was not an appropriate remedy in this case because the DeKalb Recorder’s Court was not a court of record and did not have terms of court, but we need not address this argument in light of our conclusion that OCGA § 40-13-33 (a) barred any motion challenging Munye’s misdemeanor traffic convictions, no matter how styled.

       We note that Munye’s sentence to time already served in j ail for his conviction of the June 12 traffic offense did not exceed the punishment allowed under the DeKalb County Code of Ordinances. See DeKalb County Code of Ordinances, Appx. B, Local Constitutional Amendments, Local Acts and General Laws of Local Application, Art. XII, Div. 2, § 667 (a).

       Munye argues on appeal that his motion to vacate his sentences could be construed as a timely motion to modify his sentences under OCGA § 40-13-32 (a) and (f). Munye, who never raised this argument in the state court, has failed to show from the existing record that there was “strict compliance” with all of the requirements of OCGA § 40-13-32 (a) for obtaining modification of a traffic law sentence 90 days after the entry of judgment, which included the requirement that the prosecuting official who brought the original charge be served with a copy of the rule nisi at least 10 days prior to the hearing on the defendant’s motion. See OCGA § 40-13-32 (a) (2). Furthermore, as noted above, Munye’s challenge went to his underlying convictions rather than to his sentences because it involved questions of subject matter jurisdiction, and thus the 180-day outer time limit imposed by OCGA § 40-13-33 (a) for attacking misdemeanor traffic convictions applied in this case to bar his motion. Additionally, given that Munye’s challenge was to his underlying convictions rather than his sentences, his motion could not be construed as a motion to correct his sentences under OCGA § 17-10-1 (f), even assuming that the statute otherwise could be applied in the context of misdemeanor traffic sentences. See Richardson, 334 Ga. App. at 348-349 (3).

       Brickhouse and Williams’ motions could not be construed as motions to modify their sentences under OCGA § 40-13-32 (a) and (f) or OCGA § 17-10-1 (f) for the same reasons discussed supra in footnote 11 of Division 1 (b).