author: Phipps, Chief Judge. ELLINGTON, Presiding Judge,

text:
    A14A1975.
    THE STATE v. OSBORNE.
    (769 SE2d 115)
   Phipps, Chief Judge.

Before Corey Osborne’s arraignment in Paulding County Superior Court Case No. 14-CR-000256, the district attorney filed a motion to recuse the judge assigned to the case. Without referring the motion for a hearing before a different judge, the assigned judge dismissed the motion, concluding that it was “legally insufficient on its face.” The state appeals, contending that the motion to recuse “should have been heard by a different [j]udge.” For the following reasons, this appeal is dismissed.

In its appeal brief, the state acknowledges that pursuant to OCGA §§ 5-7-1 and 5-7-2, it was required to obtain a certificate of immediate review to appeal the trial court’s ruling; but the state apparently did not attempt to obtain the certificate in this case, asserting that “under circumstances such as the one in this case[] it would be impossible for the State to procure a certificate of immediate review.” Thus, the state “seeks to invoke jurisdiction of this Court pursuant to the ‘collateral order’ doctrine.” The state argues that if “strict construction of the State’s right to appeal trumps the collateral order doctrine, . . . the State’s right to due process is subject to infringement and . . . there would be no possible review after acquittal.”

1. The order is not reviewable pursuant to the statutory provisions governing the state’s appeal of the denial of a motion to recuse a judge, because the case is still pending in the court below and the state failed to obtain a certificate of immediate review from the trial court and failed to obtain permission to file an interlocutory appeal from this court.

In State v. Martin, the Supreme Court of Georgia recognized that “[t]here is no right to appeal granted by either the State or Federal Constitutions to . . . the defendant or the State in criminal cases. Instead, the right to appeal depends upon statute.” The Supreme Court also recognized that “the State may not appeal any issue in a criminal case, whether by direct or discretionary appeal, unless that issue is listed in OCGA § 5-7-1.” Although the denial of a motion by the state to recuse a judge is listed in OCGA § 5-7-1 (a) (9) as a decision the state may appeal, the state is not exempt from the requirement of obtaining a certificate of immediate review from the trial court and obtaining permission to file an interlocutory appeal from this court in order to appeal such an order. OCGA § 5-7-2 (b) exempts several types of orders, decisions, and judgments listed in OCGA § 5-7-1 (a) from the requirement of obtaining a certificate of immediate review, but a state’s appeal from the denial of a motion to recuse a judge is not one of them.

Moreover, OCGA § 5-7-2 (c) specifically provides that “[f]or purposes of this Code section, the granting of a motion for new trial or an extraordinary motion for new trial shall be considered a final order,” (and, pursuant to OCGA § 5-7-2 (a), an order, decision, or judgment that is final is directly appealable); but it sets forth no such provision for the denial of a motion to recuse a judge. In Ritter v. State, the Supreme Court stated that “a decision on the recusal of the trial judge is an interlocutory matter that can never dispose of a criminal case,” as the trial court has rendered no decision that “either expressly or implicitly resolves the case by preventing further prosecution of the criminal charge in superior court.”

In this case, the state acknowledges in its appeal brief that subsequent to the 2004 Martin decision, the Georgia General Assembly amended OCGA § 5-7-1 and added the denial of a state’s motion to recuse a judge to the list of appealable matters, and that the General Assembly “has not, however, to this date,” amended OCGA § 5-7-2 to designate the denial of a state’s motion to recuse a judge as an order, decision, or judgment not requiring the trial judge to certify the ruling for immediate review. OCGA § 5-7-2 has been amended three times — in 2011, 2012, and 2013. “[I]n ascertaining the purpose of legislation, courts may look to the history of the legislation on the subject matter of the particular statute.” In doing so here, we conclude that the relevant statutory history provides firm support for the conclusion that the General Assembly has decided that the state’s appeal from the denial of a motion to recuse a judge is reviewable under the interlocutory appeal procedure.

Compliance with the applicable statutory provisions is considered an absolute requirement to confer jurisdiction on an appellate court to hear an appeal, and courts have “no authority to create equitable exceptions to [such] jurisdictional requirements imposed by statute.” Furthermore, the state has not shown that compliance with the statutory requirement for appeal should be excused, as “necessary to avoid or remedy a constitutional violation concerning the appeal,” or that the circumstances attendant in this case “rise to a constitutional level.”

2. The state does not cite any Georgia case whereby jurisdiction has been conferred upon either this court or the Supreme Court in a state’s appeal of a criminal case pursuant to the collateral order doctrine, and we found none. Indeed, “[t]he authority of the State to appeal an adverse ruling in a criminal case is controlled by statute”; OCGA § 5-7-2 describes which of those matters appeal-able by the state under OCGA § 5-7-1 are appealable by direct appeal and which are appealable by discretionary appeal. And the Supreme Court of Georgia has specifically stated that “appeals from the . . . denial of the State’s motion to recuse are governed by OCGA § 5-7-1 et seq.” The state’s reliance on Commonwealth v. Stevenson, a Pennsylvania case, is misplaced. Besides the fact that this court is not bound by the holding in that Pennsylvania case, in Commonwealth, the Pennsylvania rules of appellate procedure specifically provided that “[a]n appeal maybe taken as of right from a collateral order of an administrative agency or lower court.” The state has not cited any such Georgia rule or statutory provision, and we decline to apply the collateral order doctrine to this state’s appeal when a procedure to appeal the type of order at issue is expressly provided for by statute but was not followed in this case. Applying the collateral order doctrine would render meaningless those parts of the existing statutory scheme which govern the state’s appeal of the denial of a motion to recuse a judge.

The Supreme Court and this court have held that “the statutes providing for appeals by the State in criminal cases should be construed strictly against the State.” “The State having failed to obtain a certificate of immediate review pursuant to OCGA § 5-7-2, the attempted appeal is nugatory and does not activate the appellate jurisdiction of this court. Accordingly we must dismiss the (S)tate’s appeal.”

Appeal dismissed.

McMillian, J., concurs. Ellington, P. J., concurs fully and specially.

ELLINGTON, Presiding Judge,

concurring fully and specially.

I concur fully in the majority opinion. I write separately to point out that the General Assembly’s failure to include an order denying a motion by the State to recuse or disqualify a judge as set forth in OCGA § 5-7-1 (a) (9) among those classes of cases for which a certificate of immediate review shall not be required pursuant to OCGA § 5-7-2 (b) may have been an oversight. The requirement that a certificate of immediate review be obtained from the trial court before appealing such an order raises the specter that a recalcitrant judge could entirely thwart the right of appeal the legislature intended to grant in enacting OCGA § 5-7-1 (a) (9). See State v. Evans, 282 Ga. 63, 64 (646 SE2d 77) (2007) (“OCGA § 5-7-1 (a) does not purport to authorize the State to appeal a judgment of acquittal[.]”); State v. Morrell, 281 Ga. 152, 153 (2) (635 SE2d 716) (2006) (Because the State cannot appeal after an acquittal, it can “never seek to rectify an incorrect suppression order if a defendant is acquitted[.]” For this reason, the legislature granted the State the right to an immediate appeal of suppression orders, “so that an error committed by a trial judge, which otherwise might work a miscarriage of justice, can be corrected on appeal, and before attachment of jeopardy.”) (punctuation and footnote omitted). The remedy for any such oversight, however, lies with the General Assembly. See State v. Evans, 282 Ga. at 65 (The creation of any right of appeal for the State “is a function for the General Assembly,” not for the courts.).

Decided February 12, 2015.

Dick Donovan, District Attorney, Steven J. Messenger, Assistant District Attorney, for appellant.

Gary O. Walker, for appellee.

       In its “Motion to Recuse Assigned Judge,” the state asserted, based upon an attached affidavit, that “a fair minded and impartial person would have a reasonable perception that [the trial court judge] lacks impartiality toward the District Attorney, affiant, who is the Chief Assistant District Attorney, and the Office of the District Attorney.” In the affidavit, the Chief Assistant District Attorney averred that within a period of less than two months, the trial judge had reluctantly recused from a criminal case upon the state’s motion after it was discovered that the judge had given a ride in his vehicle to the defendant in the case which was pending before the judge; the judge had signed an order ex parte, suppressing evidence in another criminal case, and later denied the state’s motion to recuse from the case; the judge had made comments intending to be sarcastic toward and to embarrass the District Attorney’s Office, after the prosecutor asked that all matters in which the state was represented by the District Attorney be taken down by a court reporter; the judge had stated that because his court reporter was ‘less happy with having to take down all matters in which the state was represented by the District Attorney, the judge was “unhappy too; and the judge refused to conduct a hearing when the court reporter was not present to take down a matter as to whether an applicant qualified as indigent, and where the prosecutor in the courtroom “indicated that a court reporter was not necessary since the State took no position on the matter.”

       See State v. Gober, 229 Ga. App. 700 (494 SE2d 724) (1997) (“[T]he ‘collateral order’ doctrine ... permits direct review of an order even though an action remains pending below.”) (punctuation omitted; emphasis supplied), citing Scroggins v. Edmondson, 250 Ga. 430, 431 (1) (c) (297 SE2d 469) (1982).

       278 Ga. 418 (603 SE2d 249) (2004).

       Id. at 418-419 (citation omitted).

       Id. at 419 (emphasis in original); see State v. Greenwood, 206 Ga. App. 188 (424 SE2d 870) (1992) (“The authority of the State to appeal an adverse ruling in a criminal case is controlled by statute, specifically OCGA § 5-7-1.”).

       See Martin, supra (“OCGA § 5-7-2... describes which of those matters [appealable by the State under OCGA § 5-7-1] are appealable by direct appeal and which are appealable by discretionary appeal.”).

       Subsection (b) of OCGA § 5-7-2 was enacted in 2011, by Ga. L. 2011, pp. 612-613, § 1.

       Subsection (c) of OCGA § 5-7-2 was enacted in 2011, by Ga. L. 2011, pp. 612-613, § 1.

       269 Ga. 884 (506 SE2d 857) (1998).

       Id. at 885-886 (2).

       Ga. L. 2005, pp. 20, 23, § 3.

       See Ga. L. 2011, pp. 612-613, § 1; Ga. L. 2012, pp. 899, 901, § 1-2; Ga. L. 2013, pp. 222, 225, § 2.

        Ga. Mental Health Institute v. Brady, 263 Ga. 591, 592 (2) (a) (436 SE2d 219) (1993) (citation omitted).

       See State v. Ware, 282 Ga. 676, 678 (653 SE2d 21) (2007) (“The general statute governing interlocutory appeals is applicable whenever the defendant seeks review of an interlocutory order. OCGA § 5-6-34 (b) (amended by Ga. L. 2005, pp. 20, 21, § 2). However, appeals from the grant of a new trial in favor of a criminal defendant and from the denial of the State’s motion to recuse are governed by OCGA § 5-7-1 et seq. Prior to the 2005 amendment to OCGA § 5-7-1, those orders, unlike the denial of a defendant’s motion to recuse, were not subject to any appeal, whether interlocutory or direct. The [Criminal Justice Act of 2005] plainly provides that an appeal may be taken by the State from the grant of a new trial or the denial of a motion to recuse, but just as clearly refrains from adding any new exception whatsoever to the requirement for a certificate of immediate review in OCGA § 5-7-2.”); but see State v. Caffee, 291 Ga. 31, 33 (2) (728 SE2d 171) (2012) (“In 2011, the Georgia General Assembly amended OCGA § 5-7-2 to eliminate the certificate requirement when the State appeals the superior court’s grant of a new trial in favor of a criminal defendant.”).

        Gable v. State, 290 Ga. 81, 82, 85 (2) (a), (b) (720 SE2d 170) (2011) (citation and punctuation omitted); see Sosniak v. State, 292 Ga. 35, 44, n. 4 (734 SE2d 362) (2012).

        Gable, supra at 85 (2) (b).

        Caperton v. A. T. Massey Coal Co., 556 U. S. 868, 872, 876, 877-878, 880, 884-885, 886-887 (II) (A), (B), (III) (129 SCt 2252, 173 LE2d 1208) (2009) (holding that “most matters relating to judicial disqualification do not rise to a constitutional level,” hut that under the “extreme facts,” of this case, which included the fact of an exceptionally large campaign contribution, due process required disqualification and was violated by the trial judge’s refusal to recuse himself; the Due Process Clause also required recusal when a judge had a direct pecuniary interest in the outcome of the case, and in the criminal contempt context, when a judge had no pecuniary interest in the case but was challenged because of a conflict arising from his participation in an earlier proceeding) (citation and punctuation omitted); see Gude v. State, 289 Ga. 46, 50 (2) (c) (709 SE2d 206) (2011).

       See Murphy v. Murphy, 322 Ga. App. 829, 831 (747 SE2d 21) (2013) (“[T]he, collateral order doctrine applies if the order (1) completely and conclusively decides the issue on appeal such that nothing in the underlying action can affect it; (2) resolves an issue that is substantially separate from the basic issues in the complaint; and (3) might result in the loss of an important right if review had to await final judgment, making the order effectively unreviewable on appeal.”) (citations and punctuation omitted).

       Compare Braddy v. State, 316 Ga. App. 292-293 (1) (729 SE2d 461) (2012) (concluding that pursuant to the collateral order doctrine appellate court had jurisdiction to consider criminal defendant’s appeal from the denial of his motion to recuse the trial judge), overruled by Murphy, supra at 832 (holding that the collateral order exception to the final judgment rule does not encompass an order denying a motion to recuse the trial court judge); Fulton County v. State, 282 Ga. 570-571 (1) (651 SE2d 679) (2007) (county could file a direct appeal from an order requiring it to pay a defendant’s expenses in a murder case under the collateral order exception to the final judgment rule in OCGA § 5-6-34 (a) (1)).

        Greenwood, supra.

        Martin, supra.

        Ware, supra.

       829 A2d 701(2003).

       Id. at 704.

       See Scroggins, supra (explaining that in Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982), the Supreme Court adopted the “collateral order” exception to the final judgment rule announced in Cohenv. Beneficial Industrial Loan Corp., 337 U. S. 541 (69 SCt 1221, 93 LE 1528) (1949)).

       See Scott v. State, 295 Ga. 39, 40 (1) (757 SE2d 106) (2014) (“a statute is to be construed to give sensible and intelligent effect to all its provisions and to refrain from any interpretation which renders any part of the statute meaningless.”) (citation and punctuation omitted); Ware, supra.

        Martin, supra at 419; see State v. Lynch, 286 Ga. 98, 103 (686 SE2d 244) (2009) (“OCGA § 5-7-1 et seq. must he construed strictly against the State and liberally in favor of the interests of defendants.”); Ware, supra at 677 (“OCGA §§ 5-7-1 and 5-7-2 must he strictly construed against the State.”).

        Ware, supra at 678 (citation and punctuation omitted).

       Cf. State v. Varner, 277 Ga. 433, 436 (589 SE2d 111) (2003) (The State was authorized to appeal from an acquittal entered after a mistrial on the last day of the term of court, because the defendant’s demand for trial operated to secure him a trial at the next regular term of court.); Chambers v. State, 262 Ga. 200, 201-202 (1), (2), (3) (415 SE2d 643) (1992) (The State was authorized to appeal after acquittal where the trial court lacked jurisdiction to try the accused when it entered a directed verdict of acquittal and therefore any proceeding so conducted in the trial court was coram non judice and void.).


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A14A2032.
    IN THE INTEREST OF G. R. B., a child.
    (769 SE2d 119)
   Dillard, Judge.

Jesse Bowen, the father of G. R. B., appeals the Juvenile Court of Whitfield County’s order finding his son to be deprived and granting permanent legal custody to the child’s maternal grandparents. Because we agree with Bowen that the juvenile court lacked clear and convincing evidence upon which to base a finding of deprivation, we reverse.

The record reflects that G. R. B. was born on December 8, 2012, to Bowen and the child’s mother, who are not and never have been married to each other. On June 27, 2013, Bowen filed a petition for legitimation and custody in the Superior Court of Murray County. And on July 31, 2013, G. R. B.’s maternal grandparents, Greg and Ashley Welch (“the Welches”), filed a motion to intervene and a complaint for grandparent custody and visitation in that same court. Simultaneously, the Welches also filed an emergency private petition alleging deprivation in the Juvenile Court of Whitfield County, which resulted in an immediate grant of temporary custody to them by the juvenile court. Then, on August 8, 2013, the Welches filed a subsequent verified private petition to determine deprivation and an award of custody in the Juvenile Court of Whitfield County, and a guardian ad litem was appointed for the child.

On August 19, 2013, the Superior Court of Murray County issued an order consolidating all pending actions and transferring the matters to the Juvenile Court of Whitfield County. Thereafter, on August 29, 2013, the juvenile court declared Bowen to be G. R. B.’s legitimate father. In this same order, as to the Welches’ petition alleging deprivation, custody, and visitation, the court found that (1) there was “a significant history of mental health problems” on the part of the mother; (2) the mother and the father had separated and reconciled many times; (3) the mother and the father had engaged in acts of domestic violence in G. R. B.’s presence with the mother pushing the child into his crib during a June 2013 incident; (4) the Welches and the maternal great-grandparents had both provided day-to-day care for G. R. B. for “a significant amount of the time” and had formed a “significant bond and relationship” with G. R. B.; and (5) both parents were gainfully employed and could provide “adequate housing and income for the child.” Nevertheless, the juvenile court was concerned with “the domestic violence, and the mother’s maintaining her medication regime.” As such, the court continued the case for a three-month period, returned G. R. B. to the parents’ custody, and directed that DFCS should open a family preservation case to ensure that the parents complied with orders to complete a parenting class, enroll in a marriage/relationship class, and complete anger-management courses.

On January 2, 2014, following a December 9, 2013 hearing, the juvenile court issued an order nunc pro tunc, making the following findings of fact: (1) an additional act of domestic violence had occurred on October 26, 2013, resulting in the mother’s arrest; (2) the mother’s initial bond conditions required that she have no contact with Bowen; and (3) the mother’s bond conditions were modified in December 2013 with Bowen’s consent to allow contact so long as the mother complied with certain requirements. Accordingly, the juvenile court again continued the matter for another three-month period, ordered DFCS to maintain the family preservation case to ensure the parents’ compliance with the requirements of the August 29, 2013 order, and ordered the mother to immediately enroll in and complete anger-management courses. Nevertheless, the court allowed G. R. B. to remain in the parents’ custody.

Then, on March 6, 2014, nunc pro tunc to February 24, 2014, the juvenile court entered an emergency order following an emergency hearing conducted on February 24, 2014. The order transferred temporary custody of G. R. B. to the Welches, granted visitation to the mother, and ordered Bowen to immediately submit to urine and hair-follicle drug tests, with visitation dependent upon negative results. The order also directed that a DFCS safety plan issued on February 18, 2014, remain in effect.

The transcript from the February 24, 2014 hearing shows that, according to the Welches’ counsel, it was held in response to both a recent physical altercation between Bowen and the mother’s then-boyfriend in the mother’s presence, and to a request by DFCS that Bowen submit to drug testing. A representative for DFCS volunteered that Bowen had “shown a little bit more stability than the mother” but that Bowen had apparently failed to submit to a requested drug test. Counsel for the mother then interjected his belief that the parties were all appearing “on kind of an emergency scenario kind... of situation rather than a full-blown hearing” based upon allegations that Bowen had recently engaged in the physical altercation and had indicated to the mother that he was “back on meth,” which led to DFCS requesting that Bowen submit to a drug test. And according to the mother’s counsel, DFCS instructed the Welches to not return G. R. B. to Bowen’s custody until he submitted to a test, which the DFCS representative confirmed. Bowen’s counsel then indicated his belief that his client was entitled to a 72-hour hearing as to whether there existed probable cause to deprive Bowen of custody.

Following an additional explanation that the allegations of drug use were made in the wake of an alleged physical altercation between Bowen and the mother’s new boyfriend after the mother moved out of the couple’s residence (that incident having apparently been the initial reason for seeking an emergency hearing), the juvenile court asked why Bowen went to see the mother. When Bowen’s counsel responded that “the two of them have an attraction to each other that is not healthy for either one of them,” the court expressed frustration with the situation as follows:

I’m done with this crap. After all this time, if you can’t understand stay away. I don’t know how much more basic it can get. We’re going to set this down for a final hearing and this is going to be done one way or the other.
If you cannot understand the basic idea of staying away, you’re not only going to lose custody, you’re going to lose visitation. And if you all continue this, I’m going to put this child beyond your reach for good and you can appeal it if you don’t like it.
What idiocy. How long has this been going on? My lord, since July. Don’t say a word. This is ridiculous; ridiculous; asinine.

Ultimately, as reflected in the nunc pro tunc order, the juvenile court ordered Bowen to undergo drug testing and for G. R. B. to remain in the Welches’ custody.

Following the February 24, 2014 hearing, on February 26, 2014, Bowen’s parents — G. R. B.’s paternal grandparents — filed their own motion to intervene in the proceedings in the juvenile court, alleging that the child was deprived and seeking custody or, in the alternative, grandparent-visitation rights.

The juvenile court conducted its promised final hearing on April 9, 2014. And on April 14, 2014, the juvenile court issued a “final order on all pending matters.” In that order, the court noted that G. R. B.’s mother had consented to placing the child in the Welches’ custody, and found, as to Bowen specifically, that he had completed the required parenting class, relationship class, and anger-management program, but that he had engaged in a physical altercation with another man in the mother’s presence “while under the influence of alcohol and methamphetamine” and brandished a gun during the incident. The court also found that “[t]he father now admits he uses methamphetamine every day and has for the past five years,” although the court also acknowledged that Bowen had started treatment within the last month. The court further found that the parents “have a relationship that has been fraught with domestic violence and instability” and that both were “unsure whether they intend to remain in their current state of separation.”

Having made the foregoing findings, and after noting that the guardian ad litem had recommended that custody of the child be placed with the Welches, the juvenile court determined that, no matter whether an order was entered as to the deprivation petition or the “matter transferred from the Superior Court,” the custody determination would “be considered permanent until modified by subsequent order of the court.” The court further found that G. R. B. “would be in danger of harm if placed with the father” because, notwithstanding his completion of the required classes, he had recently engaged in the “potentially deadly, violent incident fueled by alcohol and methamphetamine” and had “only recently begun treatment for his admitted five year addiction of daily methamphetamine use.” Additionally, the court was troubled by the parents’ perceived inability “to recognize the problematic nature of their continuing to have a relationship.” The court also noted testimony from a DFCS case manager that the Department would have “major concerns” if G. R. B. were placed with Bowen prior to the completion of substance-abuse treatment and without addressing the “pattern of domestic violence” between the parents.

Thus, the juvenile court ordered that permanent legal custody of G. R. B. be placed with the Welches, that the parents pay child support, and that the parents be granted visitation. Finally, the court indicated that for the parents to “be considered for a return of custody,” they would need to complete certain requirements. Bowen now appeals from the juvenile court’s determination that G. R. B.' was deprived and its grant of permanent legal custody to the Welches, contending that the court lacked clear and convincing evidence to support a finding of deprivation. We agree.

At the outset, we note that on appeal from a deprivation order, we view the evidence “in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found clear and convincing evidence of deprivation.” In this review, we do not weigh the evidence or determine the credibility of witnesses; “instead we defer to the juvenile court’s findings of fact and affirm unless the appellate standard is not met.” And here, even viewing the evidence in the light most favorable to the lower court’s judgment, the evidence does not support the court’s finding of deprivation.

Although the evidence reflected that Bowen engaged in a physical altercation with the mother’s then-boyfriend in February 2014, and that he brandished a firearm during the incident and was seen in possession of an alcoholic beverage, there was no evidence that he was under the influence of methamphetamine during the incident. Indeed, G. R. B.’s mother testified that Bowen did not appear to be under the influence of drugs or alcohol during the incident, although he was in possession of a beer. Additionally, it was undisputed that G. R. B. was not present during the incident and, as such, there was no showing that G. R. B. was in any way harmed by the altercation.

As to the juvenile court’s finding that “[t]he father now admits he uses methamphetamine every day and has for the past five years,”* this determination must be considered in its proper evidentiary context. Indeed, while it is certainly true that Bowen admitted to previously using methamphetamine daily for five years, the father testified that he never did so in G. R. B.’s presence and that at the time of the hearing, he had been in treatment for approximately one-and-a-half months, was attending weekly substance-abuse classes and meetings, and had passed recent drug tests. He also testified that substance-abuse rehabilitation had changed his outlook on life since the February 2014 altercation, that he was willing to submit to random drug tests, and that he could not “fall off the wagon” and use drugs again for G. R. B.’s sake.

Regarding his relationship with G. R. B.’s mother, Bowen admitted that previous physical altercations between the two had occurred in G. R. B.’s presence (and that those incidents were probably emotionally upsetting even for an infant), but that he had no plans to reunite with the mother. The mother, too, testified that she had no plans to get back together with Bowen, although she could not swear that it would never happen.

Finally, Bowen testified that he lived alone in a two-bedroom mobile home that was equipped to care for G. R. B., that he was gainfully employed, and that he provided G. R. B. with life necessities when the child was in his care.

A representative for DFCS declined to make a placement recommendation on the record at the conclusion of the hearing but, upon request for clarification from the juvenile court, testified that the Department wanted all of Bowen’s substance-abuse and anger-management issues “appropriately addressed” before considering him for placement. Nevertheless, this testimony from the DFCS representative came after the representative testified that the Department (1) had “no concerns” about G. R. B.’s well being while in Bowen’s care, (2) had no concern that Bowen was incapable of providing G. R. B. with a safe and healthy living environment, (3) found no evidence that Bowen had ever exposed G. R. B. to physical or emotional threats, (4) found no indication that placement with Bowen would result in an abusive situation or that he would be neglectful of or incapable of providing for G. R. B.’s daily needs, (5) deemed all homes at issue to be “acceptable” for placement, (6) found no indication that previous incidents of domestic violence between the parents had a negative impact upon G. R. B., (7) was unaware of any issue DFCS had with Bowen’s efforts or progress since the February 2014 hearing, and (8) was unaware of anything that Bowen had not made “significant progress on” or “completed.”

Additionally, the actual DFCS caseworker assigned to the case testified separately that Bowen had completed the marriage/relationship class, an anger-management class, and a parenting class; and that both parents were compliant and easy to work with. She further represented that DFCS would like for Bowen to complete his substance-abuse treatment prior to any return of custody, that DFCS would like to see multiple clean drug screens, and that DFCS was concerned about the parents having any ongoing relationship. However, she also testified that since Bowen’s positive drug-test result after the February 24, 2014 hearing, he had “hit the ground running” by enrolling in treatment, had tested negative on all subsequent drug tests, and had started a new job.

Considering the foregoing, the juvenile court lacked clear and convincing evidence by which to make a determination that G. R. B. was presently deprived as to Bowen. As we have previously explained, when a juvenile court is faced with a petition to find a child deprived, such a petition “is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue.” Indeed, the definition of “deprived” focuses “upon the needs of the child regardless of parental fault.” And the record must contain evidence of present deprivation, not merely past or potential future deprivation. Finally, the party who brings the petition alleging deprivation, not the parent from whose custody the child is being removed, carries the burden of proof.

Once a juvenile court finds that a child is deprived, the court is authorized “under former OCGA § 15-11-34 (a) to impose alternative orders of disposition best suited to the protection and physical, mental and moral welfare of the child.” Nevertheless, even a temporary loss of custody is not authorized unless there is clear and convincing evidence that “the deprivation resulted from the unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.” Thus, only under compelling circumstances that are found to exist by such clear and convincing proof may a court sever, even temporarily, the parent-child custodial relationship.

In the case sub judice, even construing the evidence in favor of the juvenile court’s findings of fact, we conclude that the record lacks clear and convincing evidence to support the juvenile court’s determination that G. R. B. was deprived within the meaning of former OCGA § 15-11-2 (8) (A). There was no evidence that the child was harmed by the February 2014 physical altercation between Bowen and the mother’s boyfriend when, in fact, G. R. B. was not even present during the altercation. There was also no evidence that the child was harmed by the prior acts of domestic violence between the parents, except to the extent that the mother, not Bowen, had during one such incident pushed the child into his crib. And while DFCS and the court were both troubled by the possibility that Bowen and the mother might someday reunite, the couple was separated at the time of the hearing, and both parties testified that they had no present intention to reunite. Finally, although Bowen admitted to previously using methamphetamine daily for five years, and although a juvenile court may consider prior substance abuse to infer harm to a child even when there is no showing of actual harm, the evidence established that Bowen had passed several drug screens since the February 2014 hearing, Bowen indicated a willingness to undergo random drug tests, Bowen testified to having a strong desire to stay sober for the sake of his child, and Bowen was one-and-a-half months into completing a nine-month substance-abuse program.

Decided February 12, 2015.

Meriwether & Tharp, Joann Brown-Williams, for appellant.

Mitchell & Mitchell, G. Gargandi Vaughn, for appellee.

Accordingly, we conclude that the petitioners (the Welches) failed to establish sufficient evidence of parental unfitness, and we therefore reverse the juvenile court’s finding of deprivation and its subsequent award of permanent legal custody to the Welches.

Judgment reversed.

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

       In 2013, the General Assembly amended Title 15 of the Georgia Code “so as to substantially revise, supersede, and modernize provisions relating to juvenile proceedings and enact comprehensive juvenile justice reforms recommended by the Governor’s Special Council on Justice Reform in Georgia....” Ga. L. 2013, p. 294. And as part of that statutory overhaul, the General Assembly amended the definitions applicable to juvenile proceedings. See Ga. L. 2013, p. 294, § 1-1; see also OCGA § 15-11-2 (codification of new definitions for juvenile proceedings). Effective January 1, 2014, the new definitions contained in OCGA § 15-11-2 became applicable to juvenile proceedings commenced on and after that date. Ga. L. 2013, p. 294, § 5-1 (“This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date.”). The former definitions used the term “deprived” to mean a child who was “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” See former OCGA § 15-11-2 (8) (A). But the new definitions refer to a child as “dependent,” rather than “deprived,” which is a child who, inter alia, “[h]as been abused or neglected and is in need of the protection of the court....” OCGA § 15-11-2 (22) (A). “Neglect” is then defined to mean, inter alia, “[t]he failure to provide proper parental care or control, subsistence, education as required by law, or other care or control necessary for a child’s physical, mental, or emotional health or morals____’’OCGA § 15-11-2(48) (A). Although Bowen contends that the juvenile court erred in finding G. R. B. “dependent,” this opinion uses “deprived” because the proceedings in this case were commenced by petitions filed in 2013, although the juvenile court’s final order was not entered until 2014.

       The mother is not a party to this appeal.

       Although the order indicates that a two-day hearing was held on these matters, no transcript from the August 28-29, 2013 hearing was included in the appellate record.

       The appellate record does not contain a transcript from the December 9, 2013 hearing.

       No written safety plan appears in the appellate record.

       There is no written petition in the record seeking an emergency hearing and, as such, this Court’s knowledge of what led to same is based entirely upon the transcript. And given the other items absent from the appellate record (noted infra and supra), as well as the seriousness of the removal of a child from his or her parent, we remind parties in these types of proceedings that “although the chronology and the nature of events may be clear to the witnesses, and others involved in the lower court proceedings, including the presiding judge, without the development of a full and complete record, this Court is greatly hampered in its consideration of the issues presented.” In the Interest of A. J. I., 277 Ga. App. 226, 228 n.2 (626 SE2d 195) (2006).

       Emphasis supplied.

       Although there is no written documentation of same, testimony at the final hearing in April 2014, discussed supra, established without question that when Bowen submitted to this ordered test, the results were positive for the use of illegal drugs.

        In the Interest of A. J. H., 325 Ga. App. 848, 848 (755 SE2d 241) (2014) (punctuation omitted); accord In the Interest of S. D. H., 287 Ga. App. 684, 684 (652 SE2d 570) (2007).

        In the Interest of A. J. H., 325 Ga. App. at 848; see also In the Interest of B. M. B., 241 Ga. App. 609, 609 (527 SE2d 250) (1999).

       Emphasis supplied.

       Bowen did, however, acknowledge that he had previously been under the influence of the drug in G. R. B.’s presence.

        In the Interest of A. J. H., 325 Ga. App. at 851 (punctuation omitted); accord In the Interest of D. Q., 307 Ga. App. 121, 124 (704 SE2d 444) (2010).

        In the Interest of A. J. H., 325 Ga. App. at 851 (punctuation omitted); see also former OCGA § 15-11-2 (8) (A) (defining a “deprived” child as one “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals”).

        In the Interest of A. J. H., 325 Ga.App. at 852; In the Interest of R. S. T., 323 Ga.App. 860, 863 (748 SE2d 498) (2013).

        In the Interest of T. P., 291 Ga. App. 83, 86 (3) (661 SE2d 211) (2008); In the Interest of G. S., 279 Ga. App. 89, 92 (630 SE2d 607) (2006); see also In the Interest of D. C., 259 Ga. App. 157, 159 (576 SE2d 77) (2003) (holding that “juvenile court was authorized to find that DFACS did not carry its burden of proving the allegations of deprivation by clear and convincing evidence, and that the natural mother’s right to custody of her children has not been lost”).

        In the Interest of A. J. H., 325 Ga. App. at 852 (punctuation omitted); accord In the Interest of J. P., 267 Ga. 492, 492 (480 SE2d 8) (1997).

        In the Interest of A. J. H., 325 Ga. App. at 852 (punctuation omitted); accord In the Interest of C. R., 292 Ga. App. 346, 351 (2) (665 SE2d 39) (2008).

        In the Interest of A. J. H., 325 Ga. App. at 852; see also In the Interest of H. S., 285 Ga. App. 839, 841 (648 SE2d 143) (2007); In the Interest of A. J. L, 277 Ga. App. at 227; In the Interest of S. J., 270 Ga. App. 598, 599 (607 SE2d 225) (2004).

        See In the Interest of M. L. C., 249 Ga. App. 435, 438-39 (2) (548 SE2d 137) (2001) (reversing finding of deprivation when there was no evidence that child was present during domestic-violence altercations between parents or otherwise harmed by them); cf. In the Interest of C. L. Z., 283 Ga. App. 247, 249 (641 SE2d 243) (2007) (reversing finding of deprivation when there was no evidence of emotional or physical harm to child from isolated incident of physical and emotional abuse).

        See In the Interest of C. D. E., 248 Ga. App. 756, 761-62 (1) (546 SE2d 837) (2001) (reversing finding of deprivation when, despite juvenile court’s concern over prior incidences of domestic violence between parents, parents were separated at the time of the hearing and had no intention of getting back together, and rejecting argument that finding should be upheld because there was no guarantee that parents would never get back together).

        See former OCGA § 15-11-94 (b) (4) (B) (ii) (providing that, in determining whether a child is without proper parental care or control, the juvenile court may consider “[ejxcessive use of or history of chronic abuse of intoxicating liquors or narcotic or dangerous drugs or controlled substances with the effect of rendering the parent incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of the child”) (recodified with minor changes at OCGA § 15-11-311 (a) (2)); see also In the Interest of K. W., 279 Ga. App. 319, 321 (631 SE2d 110) (2006) (“[A] juvenile court is entitled to infer an adverse effect on the children when there is evidence of chronic alcohol or drug abuse by the parent.”); In the Interest of J. L., 269 Ga. App. 226, 229 (1) (603 SE2d 742) (2004) (holding that, although there was no evidence that parent’s use of illegal drugs had adversely affected child, “it is a fair inference that use of cocaine by a parent has an adverse effect on a minor child”).

        See In the Interest of M. L. C., 249 Ga. App. at 438-39 (reversing finding of deprivation when, although father admitted to previous addiction to marijuana, he had used only once in the preceding ten months and had passed monthly drug tests); cf. In the Interest of K. W., 279 Ga. App. at 322 (affirming finding of deprivation and holding that it was fair to infer harm to child from mother’s chronic abuse of methamphetamine when, despite ongoing DFCS investigation into her addiction, mother did not cease using the drug); In the Interest of J. L., 269 Ga. App. at 227-28, 229 (1) (affirming finding of deprivation and holding that it was fair to infer that parent’s chronic abuse of illegal drugs would have an adverse effect on child, but parent had failed repeated drug tests despite enrollment in treatment, refused to complete treatment, was hostile toward DFCS workers, and admitted to continued use of illegal drugs).

        See In the Interest ofJ. H., 310 Ga. App. 401, 403-04 (713 SE2d 472) (2011) (reversing determination that child was deprived when record lacked clear and convincing evidence of harm to child).


text:
    A14A2151.
    CHERNOWSKI v. THE STATE.
    (769 SE2d 126)
   Dillard, Judge.

Dora Chernowski appeals the verdict and judgment entered against her on counts for driving under the influence and failure to maintain lane, for which she was tried and convicted after a single-vehicle accident in December 2004. On appeal, Chernowski contends that (1) her due-process rights were violated by the trial-court clerk’s failure to transmit a complete record and a seven-year delay in transmitting the record and (2) the trial court erred in denying her pretrial motion to suppress evidence and her renewed motion at trial as to that same evidence. For the reasons set forth infra, we affirm Chernowski’s convictions but vacate and remand the case to the trial court for resentencing.

Viewed in the light most favorable to the jury’s guilty verdict, the record reflects that on December 26, 2004, emergency personnel were dispatched at approximately 9:30 p.m. to the location of a single-car accident on a residential portion of Spalding Drive in Fulton County. And upon arrival, Chernowski’s vehicle was found turned on its side against a utility pole with Chernowski standing up inside the vehicle, trying to escape. Afire-department crew removed the vehicle’s windshield to extract Chernowski, and she was immediately treated by medical personnel with a neck brace, strapped to a backboard, and transported to a hospital for additional treatment and evaluation.

Prior to Chernowski being transported from the scene, the responding police officer made brief contact with her as she was being treated by medical personnel. The officer did not perform any field-sobriety tests upon Chernowski because she was undergoing treatment until her transfer to the hospital, but he testified at trial that, upon contact with her, he noticed that she spoke with slurred speech, had very watery eyes, and reeked of a “very strong odor” of an alcoholic beverage. Additionally, Chernowski admitted to the officer that she had consumed alcohol as recently as 45 minutes prior to the accident. And based upon these factors, the officer was convinced that Chernowski was driving under the influence of alcohol to the extent that it was less-safe to do so. The officer’s trial testimony was corroborated by that of the fire-department crew chief, who also testified that Chernowski spoke with slurred speech and smelled of an alcoholic beverage, and that he suspected she had been driving under the influence of alcohol.

After Chernowski’s vehicle was impounded, the responding officer drove to the hospital where he immediately issued citations to Chernowski for driving under the influence and failure to maintain lane. He testified that because Chernowski was still undergoing medical treatment, he left the citations with her belongings rather than with her personally. And after having Chernowski sign the citations and explaining the charges, the officer read to her Georgia’s Implied Consent law and asked for her permission to administer a blood test, to which Chernowski agreed. The results of the test showed a blood-alcohol level of 0.228 grams.

Thereafter, Chernowski was charged by accusation for DUI per se, DUI less-safe, and failure to maintain lane. She was then tried by a jury in August 2007, convicted on all counts, and the trial court then sentenced her on each of those counts. Chernowski timely filed a notice of appeal on August 24, 2007, and the trial court granted a supersedeas bond that same day. Nevertheless, the appeal was not docketed with this Court until July 25,2014, which forms the basis of Chernowski’s first enumeration of error. We will address each of her enumerations of error in turn.

1. Chernowski first contends that her due-process rights were violated by the trial-court clerk’s failure to timely transmit the record to this Court for docketing and resolution of her appeal. As such, she asks that we vacate the verdict and judgment entered against her.

As previously stated, the record reflects that Chernowski timely filed her notice of appeal on August 24, 2007, but the appeal was not docketed with this Court until nearly seven years later on July 25, 2014. Her notice of appeal requested that the clerk “omit nothing from the record on appeal,” and noted that a “[t]ranscript of evidence and proceedings will be filed for inclusion in the record on appeal.”

The record transmitted from the trial court shows that on July 26, 2012, the clerk’s office sent a letter to Chernowski’s counsel requesting payment of $83 for preparation of the appellate record, noting that preparation of the record would not begin until payment was received, and asking that any transcripts to be included in the record be filed as soon as possible. There is no explanation or any indication in the record as to whether Chernowski’s counsel ever checked the status of the appeal with the trial court before receiving that letter almost five years after filing the notice of appeal. There is, however, a case-summary sheet included in the record, which indicates that the “file” was “checked out to appeals” on July 20,2012, but that the file was later “reconstructed” and “recreated.” However, again, there is no other explanation as to why this was necessary or what this notation even signifies.

On August 23, 2012, Chernowski paid the requested $83 for the appellate record. And then on September 5, 2012, the trial-court clerk sent a second letter to Chernowski’s counsel as notification that a transcript still had not been filed with the court and, accordingly, that the appellate record could not be completed for transmission until receipt of same. Thereafter, the record contains no indication of what transpired until December 31, 2012, when the State filed a motion to dismiss Chernowski’s appeal.

The State’s motion to dismiss was scheduled for a February 15, 2013 hearing, but no hearing was held until July 24, 2013. It is undisputed between the parties that a hearing was held on this date, but no such hearing is reflected on the case-summary sheet included by the trial-court clerk’s office in the record on appeal. Moreover, no transcript from this hearing was included with the appeal, and the record does not include any order by the trial court denying the State’s motion. However, what is reflected by the record is that on August 12, 2013, Chernowski filed a motion for an extension of time in which to file a trial transcript, noting that at the July 24, 2013 hearing, the trial court ordered her to “have the file transcript [sic] filed with the Clerk of the Court within thirty (30) days of that date or show good cause why the time for filing the transcript should be extended.” Thus, Chernowski requested an additional 30 days in which to file the transcript after learning that the court reporter could not complete it in the time required by the court. The trial court granted Chernowski’s motion on August 23, 2013, and the trial transcript bears a stamp showing that it was filed in the trial-court clerk’s office on September 23, 2013. Nevertheless, the appeal was not forwarded for docketing in this Court until July 2014.

Based on the foregoing, Chernowski contends that her due-process rights were violated by the trial-court clerk’s office when it delayed in transmitting the “reconstructed” appellate record, and she correctly notes that this record does not contain (1) her motion to suppress, (2) the trial court’s order denying her motion to suppress, or (3) a transcript of the motion-to-suppress hearing. And as the Supreme Court of Georgia has explained, although there is no Sixth Amendment right to a speedy appeal, “due process concepts necessarily become implicated when substantial delays are experienced during the criminal appellate process.” Accordingly, the analytical framework created by the four speedy-trial factors in Barker v. Wingo provides “a familiar, thorough and practical means of assessing the fairness and prejudice issues that arise in cases involving the delayed resolution of direct appeals from judgments entered on criminal convictions in which the death penalty was not imposed.”

The four Barker factors — the length of the delay, the reason for the delay, the defendant’s assertion of the right, and the prejudice to the defendant — are evaluated by trial courts in “a difficult and sensitive balancing process.” And we review a trial court’s conclusion after assessing these factors for an abuse of discretion. But here, we are precluded from considering this enumeration of error because, as demonstrated by the record that is before this Court, Chernowski failed to raise this issue below and may not raise it for the first time on appeal.

Chernowski’s failure to raise this issue below not only precludes her from raising this issue on appeal, it has also (negatively) contributed to the already confusing state of the record before us, given her failure to attempt any clarification or completion of the record via the remedies afforded to her by law. Indeed, OCGA § 5-6-41 provides that when

any party contends that the transcript or record does not truly or fully disclose what transpired in the trial court and the parties are unable to agree thereon, the trial court shall set the matter down for a hearing with notice to both parties and resolve the difference so as to make the record conform to the truth. If anything material to either party is omitted from the record on appeal or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, on a proper suggestion or of its own initiative, may direct that the omission or misstatement shall be corrected and, if necessary, that a supplemental record shall be certified and transmitted by the clerk of the trial court.

At no time has Chernowski moved to have the record completed, and in cases in which the appellant does not move to have the record completed under OCGA § 5-6-41 (f), we will “find that there is nothing for this court to review in the appellate record... and that we are bound to assume that the trial court ruled correctly.” Suffice it to say, given the foregoing, we are required to assume that the trial court ruled correctly in the case sub judice. Our determination in this regard has a particular impact on Chernowski’s second enumeration of error, which is that the trial court erred in denying her motion to suppress evidence (as discussed infra).

2. In her second enumeration of error, Chernowski argues that the trial court erred in denying her motion to suppress the results of her blood test when the officer failed to comply with the requirements of Georgia’s Implied Consent law. However, because of the incomplete state of the record, and Chernowski’s aforementioned failure to move for completion of same, we must affirm the trial court’s denial of the motion to suppress.

Although it is undisputed that the trial court denied Chernow-ski’s motion to suppress, the record before us does not contain the motion, the order denying the motion, or the transcript of the motion-to-suppress hearing. And we are required to uphold the trial court’s findings of fact and credibility determinations at a suppression hearing unless they are shown to be clearly erroneous. Here, the absence of the transcript from the record makes such a showing impossible, and we must “assume as a matter of law that the evidence adduced at the hearing supported the trial court’s denial of the motion to suppress.”

3. Next, Chernowski contends that the trial court erred in denying her renewed motion at trial that the blood-test evidence should be suppressed. The trial court declined to reconsider Chernowski’s motion after the State objected on the basis that the trial court previously ruled upon same. Accordingly, we cannot say that the trial court erred.

Nevertheless, looking to the officer’s testimony at trial, it would appear that Chernowski’s enumerations of error lack independent merit when she asserts that the blood-test results should have been suppressed because she was not under arrest prior to being read Georgia’s Implied Consent notice by the officer. Although Cher-nowski’s recollection differed from that of the law-enforcement officer, and although defense counsel cross-examined the officer extensively as to alleged inconsistencies in the chronology of events (as reflected in his written reports), the officer testified that he issued citations to Chernowski before reading her Georgia’s Implied Consent notice. And pursuant to OCGA § 17-4-23,

[a] law enforcement officer may arrest a person accused of violating any law or ordinance governing the operation.. .of motor vehicles by the issuance of a citation, provided the offense is committed in his presence ..., except that, where the offense results in an accident, an investigating officer may issue citations regardless of whether the offense occurred in the presence of a law enforcement officer.

Decided February 12, 2015.

Steven J. Strelzik, Mary Trachian-Bradley, for appellant.

CarmenD. Smith, Solicitor-General, R. LeonBenham, Pamela C. Henderson, Assistant Solicitors-General, for appellee.

Thus, because Chernowski’s arguments are based upon the officer’s credibility, this was an issue for the trial court’s resolution.

4. Finally, although Chernowski does not raise the issue on appeal, we vacate her sentence and remand to the trial court for resentencing because the court did not merge her convictions for DUI less-safe and DUI per se. On remand, the trial court is instructed to merge her DUI less-safe conviction into the DUI per se conviction.

Accordingly, for all of the foregoing reasons, we affirm Chernow-ski’s convictions but vacate her sentence and remand the case to the trial court for resentencing.

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

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

       Chernowski did not file a motion for new trial.

        See, e.g., Muse v. State, 323 Ga. App. 779, 780 (748 SE2d 136) (2013).

        See OCGA § 40-6-391 (a) (5) (“Aperson shall not drive or be in actual physical control of any moving vehicle while ... [t]he person’s alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended .. . .”).

        See OCGA § 40-6-391 (a) (1) (“Aperson shall not drive or be in actual physical control of any moving vehicle while ... [ujnder the influence of alcohol to the extent that it is less safe for the person to drive . . . .”).

        See OCGA § 40-6-48 (“Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent with this Code section, shall apply... [a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety . . . .”).

       Chernowski also makes this same request in a separately filed “motion to vacate final verdict,” to which she attached various exhibits. This motion is denied, and we further note that this Court cannot consider evidence that was not presented to the trial court. See, e.g., Williams v. State, 226 Ga. App. 313, 315 (1) (485 SE2d 837) (1997).

        See generally OCGA § 5-6-42 (“Where there is a transcript of evidence and proceedings to be included in the record on appeal, the appellant shall cause the transcript to be prepared and filed as provided by Code Section 5-6-41.... The party having the responsibility of filing the transcript shall cause it to be filed within 30 days after filing of the notice of appeal or designation by appellee, as the case may be, unless the time is extended as provided in Code Section 5-6-39.”); OCGA § 5-6-41 (e) (“Where a... criminal trial is reported by a court reporter and the evidence and proceedings are transcribed, the reporter shall complete the transcript and file the original and one copy thereof with the clerk of the trial court, together with the court reporter’s certificate attesting to the correctness thereof.... The original transcript shall be transmitted to the appellate court as a part of the record on appeal; and one copy will be retained in the trial court, both as referred to in Code Section 5-6-43. Upon filing by the reporter, the transcript shall become a part of the record in the case and need not be approved by the trial judge.”); Ashley v. JP Morgan ChaseBank, N.A., 327 Ga. App. 232, 236 (1) (758 SE2d 135) (2014) (“[I]t is well settled that the duty to order the transcript and to monitor timely the progress of the court reporter’s office in transcript preparation is vested upon the appropriate appealing party.” (punctuation omitted)).

       The transcript also definitively notes that the trial exhibits are not attached, and accordingly, no exhibits were forwarded to this Court. Chernowski, of course, bore the responsibility of compiling a complete record of what transpired below. See, e.g., Black v. State, 309 Ga. App. 880, 882 (1) (711 SE2d 428) (2011) (“An appellant has the burden of proving trial court error by the appellate record, and must compile a complete record of what transpired in the trial court. Otherwise, there is not sufficient information for an appellate court’s review and the trial court ruling enumerated as error must be upheld. When a portion of the evidence bearing upon the issues raised by the enumerations of error is not brought up in the appellate record so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result.” (punctuation omitted)); see also Court of Appeals Rule 41 (c) (“In a motion to supplement the record, counsel shall describe the material to be supplemented; but shall not attach the supplemental materials to the motion filed with the Court unless directed to do so by the Court. If the motion is granted, the Clerk of Court will obtain the supplemental record from the trial court clerk.”); cf. Ashley, 327 Ga. App. at 236 (1) (“[I]t is well settled that the duty to order the transcript and to monitor timely the progress of the court reporter’s office in transcript preparation is vested upon the appropriate appealing party.” (punctuation omitted)); Rois-Mendez v. Stamps, 312 Ga. App. 136, 137 (717 SE2d 718) (2011) (discussingprior appeal’s remand to the trial court for completion of the record upon motion of the appellant after appellant realized that requested exhibits were omitted from appellate record).

       Chernowski’s separate motion before this Court and a later-filed affidavit purport to give further explanation as to the missing motion-to-suppress transcript and her efforts to obtain same, but, as previously noted, we cannot consider evidence that was not presented to the trial court. See, e.g., Williams, 226 Ga. App. at 315 (1).

        Walker v. State, 247 Ga. 484, 485 (277 SE2d 242) (1981); accord Chatman v. Mancill, 278 Ga. 488, 488 n.2 (604 SE2d 154) (2004).

       407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972).

        Chatman v. Mancill, 280 Ga. 253, 257 (2) (a) (626 SE2d 102) (2006); see also Bynum v. State, 315 Ga.App. 392, 395 (3) (726 SE2d 428) (2012) (noting that “[w]hen an appellant already has been convicted and inordinate appellate delay potentially presents such issues, those issues are to be reviewed under a modified version of the analysis used for evaluation of speedy trial interests, as presented in Barker v. Wingo” (footnote omitted)).

        Butler v. State, 277 Ga. App. 57, 64 (5) (625 SE2d 458) (2005) (punctuation omitted); accord Spradlin v. State, 262 Ga. App. 897, 901 (3) (587 SE2d 155) (2003).

        Bynum, 315 Ga. App. at 395 (3); Butler, 277 Ga. App. at 64 (5).

        See Bynum, 315 Ga. App. at 395-96 (3) (“Absent an abuse of discretion, the decision of the trial court must be affirmed. Significantly, there is no ruling of the trial court to review for abuse of discretion, as [appellant] failed to raise this issue below. As a result, he may not raise this issue for the first time on appeal.”); Butler, 277 Ga. App. at 64 (5) (same).

       OCGA § 5-6-41 (f); see DeToma v. State, 296 Ga. 90, 94 (2) n.3 (765 SE2d 596) (2014) (noting that appellant had not attempted to supplement the transcript on appeal using the procedures set forth in OCGA § 5-6-41 (f)).

        Rivera v. Harris, 259 Ga. 171, 171 (2) (377 SE2d 844) (1989); see also Zachary v. State, 245 Ga. 2, 4 (262 SE2d 779) (1980) (“[When] the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of [OCGA § 5-6-41 (f)]. When this is not done, there is nothing for the appellate court to review.” (citations omitted)); Ivory v. State, 199 Ga. App. 283, 284 (1) (405 SE2d 90) (1991). As for the inexplicable “reconstruction” of the record by the trial court, which still appears to omit several filings from the original record as discussed supra, we note that OCGA § 24-11-2 (a) provides that when “any original public records have heen lost, mutilated, stolen, or destroyed, the custodian may establish duplicates in accordance with the provisions of this article” and that, when “such public records are established by duplicates, they shall have all of the effect in evidence as the original records would have had.” See also Magnolia State Bank v. VNS Corp., 327 Ga. App. 180, 182 (755 SE2d 553) (2014) (physical precedent only) (noting that OCGA § 24-11-2 logically includes court records).

        Fides v. State, 237 Ga. App. 607, 607 (1) (516 SE2d 101) (1999); see also Boston v. State, 226 Ga. App. 17, 18 (3) (485 SE2d 578) (1997) (“[N]o transcript of a suppression hearing appears in the record. Absent a transcript of the suppression hearing, we must assume as a matter of law that the evidence presented supported the findings of the court”).

        Fides, 237 Ga. App. at 607 (1) (punctuation omitted); see also Boston, 226 Ga. App. at 18 (3).

       Chernowski lists three enumerations of error but consolidates both arguments as to the denial of her motions into one argument section. For the sake of clarity, we address these arguments in separate divisions of the opinion.

        Cf. Floyd v. State, 156 Ga. App. 741, 741 (1) (275 SE2d 786) (1980) (considering appellant’s arguments as to denial of motion to suppress, despite absence of pretrial motion-hearing transcript, when a renewed motion was made and another complete hearing was held as to the admissibility of the evidence).

        See State v. Ross, 293 Ga. 834, 835 (750 SE2d 305) (2013) (“Thus, a court retains broad discretion over interlocutory evidentiary rulings which may be modified at any time until entry of final judgment. Our appellate courts have applied this exception to allow trial courts to reconsider interlocutory rulings on the admissibility of evidence.” (citation and punctuation omitted)).

        See, e.g., White v. State, 263 Ga. 94, 98 (5) (428 SE2d 789) (1993) (considering both the transcript of the hearing on appellant’s motion to suppress and the trial transcript to find no error in the trial court’s denial of appellant’s motion).

        See OCGA § 40-5-55 (a) (“[A]ny person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities.”).

       Again, the trial exhibits were clearly noted as not having been attached to the transcript and thus were not transmitted with this appeal. Moreover, Chernowski has not moved for supplementation of the record on appeal and apparently did not seek to supplement the record below either. See supra note 8.

        Cf. Hough v. State, 279 Ga. 711, 717-18 (2) (b) (620 SE2d 380) (2005) (noting that results should have been suppressed when “[tjhere was no indication of an arrest at that time, whether by citation or otherwise”).

       OCGA § 17-4-23 (a) (emphasis supplied).

        See, e.g., Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d 148) (2013) (“First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.” (punctuation omitted)).

        See Hulett v. State, 296 Ga. 49, 54 (2) (766 SE2d 1) (2014) (“[When] neither party properly raises and argues a merger issue, this Court has no duty to scour the record searching for merger issues. However, if we notice a merger issue in a direct appeal, as we have here, we regularly resolve that issue, even where it was not raised in the trial court and is not enumerated as error on appeal.” (citation and punctuation omitted)); Nazario v. State, 293 Ga. 480, 486 (2) (b) (746 SE2d 109) (2013) (“[T]his Court regularly decides merger issues- — and vacates convictions and sentences- — even where the issue was not raised in the trial court and is not enumerated as error on appeal.”).

        See Crowe v. State, 314 Ga. App. 527, 532-33 (5) (a) (724 SE2d 831) (2012) (agreeing with appellant that convictions for DUI less-safe and DUI per se merged, and vacating and remanding for resentencing); Schlanger v. State, 290 Ga. App. 407, 415 (8) (659 SE2d 823) (2008) (physical precedent only) (“[T]he trial court failed to expressly merge [appellant’s] DUI convictions for sentencing purposes. Thus, ... we must vacate [appellant’s] sentence and remand this case to the trial court for resentencing.” (citation omitted)).


author: ELLINGTON, Presiding Judge.

text:
    A14A1546.
    DAVIS v. THE STATE.
    (769 SE2d 133)
   ELLINGTON, Presiding Judge.

A Clayton County jury found Jaylan Davis guilty beyond a reasonable doubt of burglary, OCGA § 16-7-1 (b); criminal trespass, OCGA § 16-7-21 (b) (1); and obstruction of a law enforcement officer, OCGA § 16-10-24 (a). Following the denial of his motion for a new trial, Davis appeals, challenging the sufficiency of the evidence and contending that the trial court violated his right to confront a witness, that the trial court imposed an unconstitutionally cruel and unusual punishment, and that he received ineffective assistance of counsel. For the reasons explained below, we dismiss this appeal.

“It is the duty of this [C]ourt to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.” (Punctuation and footnote omitted.) Deleon-Alvarez v. State, 324 Ga. App. 694, 698 (1) (751 SE2d 497) (2013). Under longstanding Georgia law, “[t]he proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” (Citation and punctuation omitted; emphasis in original.) Cody v. State, 277 Ga. 553 (592 SE2d 419) (2004).

The record shows the following with regard to this jurisdictional requirement. The trial court entered judgment on the jury’s verdict on May 16, 2013. Upon sentencing Davis, the trial court advised him of his right to appeal from the judgment within 30 days. The trial court also informed him that, if he desired appointed appellate counsel, he should inform the court and that a hearing would be scheduled to determine whether he was indigent and entitled to appointed counsel. Davis, still represented by his retained trial counsel, filed a “Motion for New Trial” on September 11, 2013, more than 30 days after the entry of judgment. Davis, represented by new post-conviction counsel, amended the Motion for New Trial three times. None of Davis’s pleadings provided any explanation for the delay in filing his initial Motion for New Trial. The trial court denied the Motion for New Trial, as amended, on February 25, 2014. Davis filed his “Notice of Appeal” on March 13, 2014.

Georgia’s Appellate Practice Act provides:

Anotice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of; but when a motion for new trial... has been filed, the notice shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion. . . .

OCGA § 5-6-38 (a). In addition, “[a]ll motions for new trial, except in extraordinary cases, shall be made within 30 days of the entry of the judgment on the [jury’s] verdict[.]” OCGA § 5-5-40 (a). Thus, the record shows that, although Davis timely filed a notice of appeal within 30 days after the trial court’s order denying his motion for new trial, his motion for new trial was untimely as an ordinary motion for new trial, having been filed more than 30 days after the entry of judgment on the jury’s verdict. Because Davis failed to file his motion for new trial within the time allowed, “that motion was void... [and] did not toll the 30-day limit within which he was required either to file a notice of appeal from the underlying judgment and sentence or to seek from the trial court an extension of time for doing so.” (Citation and punctuation omitted.) Porter v. State, 271 Ga. 498, 498-499 (521 SE2d 566) (1999). As the Supreme Court of Georgia explained,

[t]o allow untimely filed motions, and thereby toll or delay the time for filing a notice of appeal, would violate the provisions of OCGA § 5-6-39 (b), prohibiting extensions of time for filing such motions, as well as ignore the further mandate of OCGA § 5-6-39 (d), that requires within 30 days either the filing of a notice of appeal or the obtaining of an extension of time therefor.

(Citation and punctuation omitted.) Id.

We are mindful of the principle that “there is no magic in mere nomenclature, and pleadings are construed to serve the best interests of the pleader, and are judged by function rather than name.” (Citation and punctuation omitted.) Jordan v. State, 247 Ga. App. 551, 552 (1) (544 SE2d 731) (2001). Before dismissing Davis’s appeal, therefore, we look to the substance of Davis’s pleadings to determine whether there is another basis for this Court to exercise jurisdiction over this appeal.

(a) Extraordinary Motion for New Trial. Pursuant to OCGA § 5-5-41 (b), when “a motion for a new trial has not been made [within 30 days after the entry of judgment in a criminal case], no motion for a new trial from the ... verdict or judgment shall be made or received unless the same is an extraordinary motion or case[.]” First, Davis’s untimely motion for new trial was “unaccompanied by any attempt to show some good reason why the motion was not made during the 30-day period following entry of the judgment and sentence [,]” and, therefore, we cannot construe the motion as an extraordinary motion for new trial. (Citation and punctuation omitted.) Porter v. State, 271 Ga. at 499. Moreover, the Appellate Practice Act authorizes jurisdiction over the denial of an extraordinary motion for new trial only pursuant to the discretionary appeals procedure. OCGA § 5-6-35 (a) (7), (b), (c), (d). Thus, if we construe Davis’s motion as an extraordinary motion for new trial, we must dismiss this appeal, because he failed to comply with the discretionary appeal procedure. Clark v. State, 272 Ga. App. 512, 513 (2) (613 SE2d 1) (2005); Balkcom v. State, 227 Ga. App. 327, 329 (489 SE2d 129) (1997).

(b) Motion for New Trial Filed Pursuant to an Authorized Out-of-Time Appeal. Because a criminal defendant has a constitutional right to the effective assistance of counsel on appeal, a defendant “who has lost his right to appellate review of his conviction due to error of counsel is entitled to an out-of-time appeal.” (Citation omitted.) Rowland v. State, 264 Ga. 872, 875 (2) (452 SE2d 756) (1995).

An out-of-time appeal is a judicial creation that provides a remedy for the loss, occasioned by error of counsel, of a criminal defendant’s right of appellate review of his conviction. The grant of an out-of-time appeal is permission to pursue the post-conviction remedies which would be available at the same time as a direct appeal.

(Citations and punctuation omitted.) Cody v. State, 277 Ga. at 553. When a criminal defendant “obtains permission from the trial court to file an out-of-time motion for new trial and the trial court then denies the motion on its merits, [he] is entitled to file a direct appeal” and the appellate court will have jurisdiction to address the merits of the appeal. Washington v. State, 276 Ga. at 656 (1).

“An out-of-time appeal is not authorized in every criminal case which involves a failure by counsel to comply with the applicable procedures necessary to invoke [the appellate court’s] jurisdiction.” Porter v. State, 271 Ga. at 499-500. An appellate court should not “presuppose [ ] that the appellate procedural deficiency is due to the negligence, ignorance, or misinterpretation of the law by appellate counsel when, in fact, the criminal defendant may have voluntarily elected to forego a timely appeal following conviction.” (Citations and punctuation omitted.) Rowland v. State, 264 Ga. at 874 (1). Ordinarily, to obtain an out-of-time appeal, the defendant “must apply for that relief in the trial court[,]” and the trial court must hold a hearing to determine whether “the appellate procedural deficiency was due to appellate counsel’s failure to perform routine duties” or “whether the untimeliness of [the] motion for new trial was attributable to [the defendant] himselff.]” (Citations and punctuation omitted.) Porter v. State, 271 Ga. at 500.

In Washington v. State, the Supreme Court of Georgia relaxed these procedural requirements somewhat. In that case, the defendant filed an “out-of-time motion for new trial,” the trial court consulted with the district attorney and the defendant’s trial counsel, and the State consented to having the trial court treat the out-of-time motion for new trial “as both a motion requesting permission to file an out-of-time motion for new trial and as a motion for new trial.” Id. Noting that the name of the pleading made it “clear [that the defendant’s] motion for new trial was not timely filed within 30 days of the entry of conviction and imposition of sentence” and that the trial court held a hearing on the motion and denied it on the merits, the Supreme Court of Georgia held that the trial court had “expressly recognizfed]” the “out-of-time motion for new trial” as both a request to file an out-of-time motion for new trial and as a motion for new trial. The Court determined that, under the circumstances, the trial court had “implicitly” granted the defendant permission to file the out-of-time motion and concluded that it had appellate jurisdiction over the defendant’s direct appeal from the denial of the motion. Id.

In this case, however, nothing in the record shows that the trial court expressly recognized Davis’s untimely motion for new trial as both a request to file an out-of-time motion for new trial and as a motion for new trial. Unlike in Washington v. State, the name of the pleading did not make it clear that the motion was not timely. Davis made no attempt in his initial motion or the amendments to show that his failure to preserve his right to appeal by filing either a timely notice of appeal or a timely motion for new trial was due to an error of counsel. Nothing in the record shows that the trial court consulted with counsel or that the State consented to treating the out-of-time motion as including a request for an out-of-time appeal. In the absence of any indication in the record that the trial court considered evidence regarding the reasons that Davis’s motion was not timely filed, or that the untimeliness of the motion was even brought to the attention of the trial court, we cannot infer merely from the fact that the trial court ruled on the untimely motion on the merits that the trial court determined that Davis lost his right to appeal due to an error of counsel and that he is therefore entitled to an out-of-time appeal.

It would not matter if Davis and the State were to join in a request that this Court decide this appeal on the merits, rather than returning this case to the trial court for a formal determination of the issue of whether Davis is entitled to an out-of-time appeal. Under Georgia law, “parties cannot confer [appellate] jurisdiction by consent,” even for the sake of judicial economy and justice. (Citation and punctuation omitted; emphasis in original.) Veasley v. State, 272 Ga. 837, 839 (537 SE2d 42) (2000). Thus, dismissal is mandated regardless whether the State may consent to our consideration of this unauthorized appeal. Id.; Porter v. State, 271 Ga. at 499-500.

Decided February 17, 2015.

Sharee L. Davis, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Appeal dismissed.

Phipps, C. J., Andrews, P. J., Doyle, P. J., Miller, Dillard, McFadden, Boggs, Ray, Branch and McMillian, JJ., concur. Barnes, P. J., concurs in judgment only.

       See also Cody v. State, 277 Ga. 553 (592 SE2d 419) (2004) (accord); Washington v. State, 276 Ga. 655, 656 (1) (581 SE2d 518) (2003) (accord).

       See also Porter v. State, 271 Ga. 498 (521 SE2d 566) (1999) (accord); Rowland v. State, 264 Ga. 872 (1) (452 SE2d 756) (1995) (accord).

       In its appellate brief, the State inexplicably described Davis’s motion for a new trial as “timely.”

       See OCGA § 5-6-39.

       See also Washington v. State, 276 Ga. at 656 (1) (“Generally, an untimely motion for new trial does not toll the 30-day period in which a notice of appeal must be filed and can result in the dismissal of the appeal due to the failure to file a notice of appeal within 30 days of the entry of the judgment of conviction and imposition of sentence.”) (citation omitted).

       See OCGA § 5-5-41 (a) (“When a motion for a new trial is made after the expiration of a 30 day period from the entry of judgment, some good reason must be shown why the motion was not made during such period, which reason shall be judged by the court.”); Ford Motor Co. v. Conley, 294 Ga. 530, 539-541 (2) (757 SE2d 20) (2014) (“[W]hen a motion for new trial is untimely, before considering the merits of the motion, the court must determine if the delay in filing the motion should be excused by good cause____Good reason exists only where the moving party exercised due diligence but, due to circumstances beyond its control, was unable previously to discover the basis for the claim it now asserts.” In many cases, “good reason” refers to new evidence, but it can be other things as well.) (emphasis supplied); Drane v. State, 291 Ga. 298, 300 (2) (728 SE2d 679) (2012) (An extraordinary motion for new trial may be granted on the basis of newly discovered evidence if the defendant is able to show that the evidence came to the movant’s knowledge since the trial and could not have been acquired sooner through the exercise of due diligence, that the evidence is not merely cumulative and will do more than merely impeach the credit of a witness, and that the evidence is so material that it would probably produce a different verdict.).

       We do not read the Supreme Court of Georgia’s decision in Washington v. State as going so far as holding that an appellate court should conclude that a trial court implicitly grants permission for a defendant to file an out-of-time motion for new trial simply by virtue of the fact that the trial court holds an evidentiary hearing on an untimely motion for new trial and decides the motion on the merits. To the extent we have suggested otherwise in Cook v. State, 314 Ga. App. 289, n. 1 (723 SE2d 709) (2012), such case is disapproved. Cf. Moore v. State, 319 Ga. App. 696, 698, n. 2 (738 SE2d 140) (2013) (defendant moved for leave to file an out-of-time motion for new trial when he filed his motion for new trial); Moore v. State, 279 Ga. App. 105, n. 1 (630 SE2d 557) (2006) (defendant filed a motion for an out-of-time appeal); Jordan v. State, 247 Ga. App. at 552 (1) (defendant filed a motion for permission to file an out-of-time motion for new trial).

       See Veasley v. State, 272 Ga. at 839-840 (Fletcher, P. J., dissenting) (suggesting that the trial court would be required to grant a defendant permission to file an out-of-time appeal, where he did not file a notice of appeal within 30 days of the order disposing of his motion for new trial “apparently because that order was not served on him” as required by statute, and, therefore, that “for the sake of judicial economy and justice,” the Court should “address the merits of the appeal as both parties request”); see also OCGA § 15-1-2 (“Parties may not give jurisdiction to a court by consent, express or implied, as to the person or subject matter of an action.”).