author: Peterson, Judge.

text:
    A16A1049.
    PAYNE v. THE STATE.
    (791 SE2d 451)
   Peterson, Judge.

This is another case about whether the State sufficiently proved venue in a criminal prosecution. It was New Year’s Eve in a Chatham County trailer park when police arrived in response to a report of a fight. A white van left quickly upon their arrival; the driver was John Robert Payne, Jr. An officer followed Payne, activating his blue lights and siren after Payne had left the trailer park. Payne fled, driving erratically and making several turns before crashing, and was convicted of fleeing or attempting to elude a police officer. Payne now argues on appeal that, although the trailer park was in Chatham County, there was no evidence that the roads down which Payne fled also were, and thus the State failed to prove venue. Payne also argues that his trial counsel was ineffective for a variety of reasons. We affirm because (1) there is record evidence authorizing the jury to conclude that one of the roads down which Payne fled was in Chatham County, and (2) trial counsel’s performance was not deficient.

1. Payne argues that the evidence was insufficient to support his conviction because the State failed to prove venue. We disagree.

When we review the sufficiency of the evidence, we do not “re-weigh the evidence or resolve conflicts in witness testimony” but instead defer “to the jury’s assessment of the weight and credibility of the evidence.” Greeson v. State, 287 Ga. 764, 765 (700 SE2d 344) (2010) (citation omitted). We determine whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S. Ct. 2781, 61 LE2d 560) (1979) (citation omitted) (emphasis in original).

So viewed, police responded to a report of a fight in progress at a trailer park on the evening of December 31, 2012. Officers testified at trial that the trailer park is located in Chatham County, Georgia. As a responding officer approached the trailer park, he noticed a white van backing out of the trailer park at a high rate of speed. A lieutenant who also had responded to the call instructed the officer to stay with the van.

The officer followed the van and attempted to initiate a traffic stop by activating his vehicle’s blue lights and siren. When he activated his blue lights, the van had just turned from Downing Avenue (which ran alongside the trailer park) onto 43rd Street. The officer testified that the van traveled down Downing Avenue, along which it had been parked at the trailer park, turned onto 43rd Street, and then jumped a curb to turn onto Skidaway Road, where it traveled in the lane of oncoming traffic. A taxi driver — who testified that he was “on the roads of Chatham County” that night, specifically eating at a fast food restaurant on Skidaway Road — saw the chase, observing that the van was driving erratically and a passenger was looking back at police. The van then drove along an alley not meant for through traffic.

After the van made several turns, the passenger exited the vehicle and began fleeing on foot. The driver of the van changed directions and continued on, and the officer elected to follow the passenger. The passenger, later identified as Payne’s co-defendant Charles Sapp, was apprehended and taken into custody. The van crashed into a tree, and the driver ran away An investigating officer testified that the crash site also was located in Chatham County The van was registered to Payne and contained several documents with his name on them. There was a lot of blood on and inside of the van, including on the steering wheel, the dashboard, the center console and both seats. Payne, whose DNA matched that found in blood on the outside of the driver’s side of the van, was apprehended several months later.

Back at the trailer park, police found a man with several stab wounds. He later testified to being robbed and stabbed by two men, one of whom he identified as Sapp. Sapp and Payne were jointly indicted for various offenses, including armed robbery and fleeing or attempting to elude a police officer.

Sapp testified at trial that Payne was giving him a ride when Payne decided to stop and see the alleged victim. Sapp testified that Payne and the alleged victim got into a physical fight in which the alleged victim threw the first punch and wielded a knife. Sapp testified that when he and Payne left in the van, with Payne driving, Payne was bleeding badly He said he was concerned because Payne was “bleeding and leaning into the window . . . and making bad moves ... as far as his driving[.]” Sapp testified that he noticed blue lights behind them “[a]bout halfway up 43rd” and realized the police were pursuing “when we got closer to Skidaway.”

Payne did not testify Sapp was found guilty of obstruction of an officer and fleeing or eluding but acquitted of the other charged offenses. Payne also was found guilty of fleeing or eluding and acquitted of the other charges. He filed a motion for new trial, which the trial court denied. This appeal followed.

A criminal case must be tried “in the county where the crime was committed.” Ga. Const. of 1983, Art. VI, Sec. II, Par. VI. See also OCGA § 17-2-2(a). “When a defendant pleads not guilty, the State must prove every element of the charged crime, including venue, beyond a reasonable doubt.” Grant v. State, 326 Ga. App. 121, 123 (2) (756 SE2d 255) (2014). What evidence is sufficient to prove venue has been the subject of a number of decisions of the Supreme Court of Georgia over the last decade and a half.

Our Supreme Court has made clear that merely “slight evidence” of the proper venue is not enough to sustain a verdict. Martin v. McLaughlin, 298 Ga. 44, 46 n.3 (779 SE2d 294) (2015); Jones v. State, 272 Ga. 900, 902-03 (2) (537 SE2d 80) (2000). And “[establishing the venue of a near-by site does not establish the venue of the [crime] site itself.” Chapman v. State, 275 Ga. 314, 317 (4) (565 SE2d 442) (2002). Earlier this year, the Supreme Court said that testimony that a crime occurred “just down the street” from a residence located in the county where the case was tried was not sufficient to establish venue (although the Court’s holding was that venue had been established in that case based on evidence of the affiliation of the responding and investigating officers and use of the county sheriff’s office’s forms and evidence room). See Propst v. State, 299 Ga. 557, 561 (1) (b) (788 SE2d 484) (2016). That Court has urged prosecutors not to overlook venue as they set out to prove their cases, noting that, “like the Court of Appeals, we continue to see cases like this one in which venue becomes a serious issue on appeal, apparently unnecessarily.” Thompson v. Brown, 288 Ga. 855, 857-58 (708 SE2d 270) (2011).

At the same time, the Supreme Court has allowed that “[t]he State can establish venue by both direct and circumstantial evidence.” Propst, 299 Ga. at 561 (1) (b). And

venue generally is a question for the jury, and on direct appeal, the evidence must be viewed in the light most favorable to the verdict of the jury, and the verdict must be sustained as to venue so long as the evidence would permit a rational jury to find beyond a reasonable doubt that venue was properly laid.

Martin, 298 Ga. at 46 (citation omitted). On the same day that the Supreme Court issued its opinion in Propst, in a separate case it held that evidence that a mini-mart parking lot where a murder victim’s body was dumped was in a particular county was sufficient to establish venue for the murder, given evidence that the car in which the victim was shot pulled into the parking lot “real fast” and “real close” after shots were fired. Jones v. State, 299 Ga. 377, 381 (3) (788 SE2d 477) (2016).

That said, under the 2000 Jones decision that still binds us, this record contains enough evidence to reject Payne’s sufficiency argument. Testimony established that the trailer park was located in Chatham County, where the case was tried. A responding officer testified that Payne attempted to flee as he turned onto 43rd Street and continued onto Skidaway Road. The officer activated his blue lights just after the van turned onto 43rd Street, and they remained activated as Payne turned onto Skidaway. The video clearly shows Payne driving evasively after making the turn onto Skidaway. “[T]he offense of eluding an officer is complete when a defendant refuses to stop his vehicle despite visual and audible signals to do so.” Grant, 326 Ga. App. at 124 (2). Payne committed this offense on every road down which he fled, including Skidaway And, when considered in the context of the question asked him, a taxi driver who saw Payne flee past him as he ate at a fast food restaurant described Skidaway as a road in Chatham County:

Q: That particular evening, a little bit after nine o’clock, did you have the occasion to be on the roads of Chatham County?
A: Yes, ma’am, I was.
Q: And whereabouts were you?
A: I was at 42nd at Skidaway at the KFC.
Q: Okay And where were you parked on that occasion?
A: I was parked on the right-hand side of the building of the corner, the very first parking space near Skidaway Road.

Therefore, this is not a case in which the evidence merely “[ejstab-lish[ed] the venue of a near-by site.” Chapman, 275 Ga. at 317 (4). Rather, here there was evidence sufficient to authorize the jury to find that Payne was in Chatham County when he committed the offense of fleeing or eluding, at least on Skidaway Road.

Payne argues that his case is similar to Grant, in which we reversed a defendant’s conviction for fleeing or eluding on the ground that the State had failed to prove venue. 326 Ga. App. at 123-24 (2). In that case, the evidence showed that the defendant shot a cook at a restaurant located in Chatham County, then left the scene in his car. Id. at 123 (2). An officer testified that he had received a be-on-the-lookout for the defendant’s car and unsuccessfully attempted to initiate a traffic stop through use of his blue lights and siren. Id. at 122. The defendant was later apprehended by other officers. Id. Several officers testified about the streets over which they traveled in their pursuit of the defendant, but none identified the county where the defendant failed to stop when signaled to do so or the county or counties through which the chase occurred. Id. at 123 (2). But Grant does not apply here. In this case, the evidence established not only the county of a location near the beginning of the chase, but also that the defendant was in that same county as the chase continued.

2. Payne also argues that his trial counsel provided ineffective assistance of counsel by (a) failing to request a charge defining “wilfully,” the required mens rea for fleeing or eluding; (b) failing to argue to the jury that the State had not proven mens rea given evidence that Payne was injured and therefore might have been confused (instead of wilful) while he was driving the van; and (c) directing the jury to find Payne guilty of the fleeing or eluding count. We disagree.

In order to prevail on an ineffective assistance of counsel claim, Payne “must show that trial counsel’s performance fell below a reasonable standard of conduct and that there existed a reasonable probability that the outcome of the case would have been different had it not been for counsel’s deficient performance.” Scott v. State, 290 Ga. 883, 889 (7) (725 SE2d 305) (2012) (citing Strickland v. Washington, 466 U.S. 668 (104 S. Ct. 2052, 80 LE2d 674) (1984)). In reviewing a claim of ineffective assistance, we defer to the lower court’s factual findings and credibility determinations unless clearly erroneous, but review a lower court’s legal conclusions de novo. Grant v. State, 295 Ga. 126, 130 (5) (757 SE2d 831) (2014).

All of Payne’s claims of ineffective assistance relate to his trial counsel’s decision essentially to concede Payne’s guilt on the fleeing or eluding charge. In his closing argument, trial counsel told jurors the case hinged on the credibility of the alleged victim, indicating the alleged victim’s various accounts of the night in question had been inconsistent. In particular, counsel challenged as impossible the alleged victim’s testimony that he did not have a knife on him at the time of the alleged crimes. In the midst of his attack on the alleged victim’s credibility, counsel told the jury:

My client is driving, by the way When you go back there, on this indictment, I’m going to save you some time, Count 7 fleeing, just pick the guilty box, okay? I’m not here to insult your intelligence. He’s driving, he’s fleeing, okay Let’s get that out of the way

Counsel then proceeded to question the alleged victim’s testimony regarding certain items the alleged victim claimed had been stolen but apparently were not recovered, saying it did not make sense that his client would have hauled a vacuum cleaner out of the van or retrieved a movie from a DVD player when he was “running from the law.” He went on to emphasize Sapp’s testimony to the effect that he had not seen Payne with a weapon, and Payne had been badly injured.

At the hearing on Payne’s motion for a new trial, trial counsel testified that he made a tactical decision not to contest the fleeing charge:

Well, the evidence was absolutely overwhelming that he fled the scene. They had a video, a dash cam video. Not only that, they called a ... cab driver who testified that he was driving at a high rate of speed. He jumped the curb. He hit a tree. He fled from the scene. He was later arrested by, I believe, the U.S. Marshals. I think if I had argued otherwise, I would have lost all credibility with the jury.

Appellate counsel pressed trial counsel regarding whether he should have argued to the jury that Payne’s loss of blood, rather than an intent to flee police, was the cause of Payne’s erratic driving, particularly given testimony from one of the alleged victim’s treating physicians that loss of blood can cause confusion. Trial counsel responded that he did not think he “could have done that with a straight face.”

Recognizing that a lawyer’s statement that he made a “tactical” decision does not preclude a finding of ineffectiveness, see Benham v. State, 277 Ga. 516, 518 (591 SE2d 824) (2004), the trial court here found trial counsel’s testimony that he made a tactical decision to concede guilt on one count to be “credible” and ruled that the lawyer made no errors so serious that he was not functioning as counsel under the Sixth Amendment’s guarantee. Whether an attorney’s trial tactics are reasonable is a question of law, not fact, see Jefferson v. Zant, 263 Ga. 316, 318 (3) (a) (431 SE2d 110) (1993), so the credibility of counsel’s explanation is of limited import. But we agree with the trial court that Payne has not raised a convincing claim of deficient performance. It is not objectively unreasonable to concede guilt on a lesser offense in an effort to avoid conviction on a more serious charge. See Favors v. State, 296 Ga. 842, 846-47 (4) (a) (770 SE2d 855) (2015) (not deficient performance to concede guilt on charge of aggravated assault on a peace officer in bid to avoid murder conviction); Taylor v. State, 304 Ga. App. 395, 400-01 (2) (b) (696 SE2d 686) (2010) (citing cases).

Here, counsel’s decision to concede that his client was fleeing from the police and guilty of the associated offense may be justified not only as an attempt to engender credibility with the jury generally, but also as part of a specific strategy to raise questions about particular statements by the alleged victim about the theft of certain items, thereby avoiding conviction under the more serious charges. This strategy was particularly reasonable given that the fleeing or eluding charge carried a maximum possible sentence of five years in prison, see OCGA § 40-6-395(b)(5)(A), whereas Payne, having been convicted of at least three felonies previously, faced a sentence of life without parole were he convicted of armed robbery. See OCGA §§ 16-8-41(b); 17-10-7(c). We find that the complained-of decisions by Payne’s trial counsel did not fall below a reasonable standard of conduct and affirm Payne’s conviction.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

Decided September 22, 2016.

Steven L. Sparger, for appellant.

MegE. Heap, District Attorney, Jerome M. Rothschild, Jr., Assistant District Attorney, for appellee.

       Although the officer testified that he activated his siren, the jury vie wed the dash camera video, which showed the precise timing of the officer’s use of blue lights, without sound.

       One justice observed that this outcome was difficult to reconcile with the Supreme Court’s previous jurisprudence. See Jones, 299 Ga. at 384 (Nahmias, J., concurring) (urging Court to disapprove of 2000 Jones decision, rather than “continuing to disregard or work around” it).

       Additionally, the van ultimately crashed into a tree that an investigating officer identified as also being in Chatham County. Pinpointing each of these three locations identified as located in Chatham County - the trailer park, the fast food restaurant, and the crash site - on maps put in evidence provides a visual that further underscores that at least part of Payne’s act of fleeing or eluding took place in, and the crime was completed within, Chatham County, as the van’s path in part fell within the triangular area created by these three points.

       The Court notes the unhelpful nature of the State’s brief. All told, it is six pages long, including a cover page and a certificate of service, and contains only one record citation. The majority of the brief simply recites boilerplate legal standards, with no argument as to how those standards apply here. One of the few sentences of actual argument refers to this matter as a murder case. The State clearly gave this appeal far less attention than did either the defense or this Court, and that is troubling.


source: Caselaw Access Project

author: Ellington, Presiding Judge.

license: Public Domain

text:
    A16A1037.
    A16A1038.
    STATE FARM FIRE AND CASUALTY COMPANY v. MOSS et al. CORBIN et al. v. STATE FARM FIRE AND CASUALTY COMPANY.
    (790 SE2d 831)
   Ellington, Presiding Judge.

State Farm Fire and Casualty Company filed suit in the Superior Court of Henry County seeking a declaration of its obligations to Virginia Moss under a homeowner’s policy of insurance issued to her on her secondary residence, a lake home that Moss had rented to Heather and Christopher Corbin. The Corbins had filed an underlying personal injury suit against Moss in the State Court of Henry County based on injuries that Heather Corbin had allegedly sustained while a tenant at Moss’s lake home. Following a hearing on the parties’ cross-motions for summary judgment, the superior court granted partial summary judgment in favor of Moss and the Corbins, finding that the lake home was an “insured location.” However, it denied the parties’ motions on the remaining ground, finding that a factual dispute existed concerning whether the Corbins’ tenancy constituted an “occasional rental” that fell outside the coverage exclusion generally applicable to rented premises.

In Case No. A16A1037, State Farm appeals from the grant of partial summary judgment. In Case No. A16A1038, the Corbins cross-appeal, challenging the court’s order denying their motion for summary judgment. In both appeals, the parties contend that the superior court erred in denying their motions for summary judgment with respect to the applicability of the “occasional rental” exception to the rental exclusion. For the reasons that follow, we resolve both appeals and reverse the order of the superior court, finding that the undisputed evidence shows that the Corbins’ rental was not occasional and that the policy specifically excludes coverage for the bodily injuries which are the subject of the underlying litigation.

Summary judgment is appropriate if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party

(Footnote omitted.) Alston & Bird LLP v. Mellon Ventures II, 307 Ga. App. 640 (706 SE2d 652) (2010).

So viewed, the undisputed facts relevant to both appeals are as follows. Virginia Moss owned two homes, a primary residence in McDonough and a lake home in Monticello. Moss purchased the lake home in 2006. In September 2009, Moss purchased two homeowner’s insurance policies from State Farm, one covering her primary residence and the other, her lake home. Moss informed State Farm that her McDonough home was her primary residence and that the Monticello lake home was her secondary residence.

Moss used her lake home frequently initially, staying there roughly every other weekend during 2006 and 2007. Moss’s use of the property declined over the years, and she eventually listed it for sale in 2010. Moss stopped using the lake home in 2011. In 2012, she only visited the property during the day to perform maintenance. She considered her McDonough home her residence, she lived there exclusively, and she received her mail there. While the lake home was on the market, Christopher Corbin approached Moss about renting it. Corbin was considering purchasing a home on the lake. He told Moss that he was interested in leasing her lake home at least through the summer and that he might even buy it.

On May 20, 2012, Moss and Christopher Corbin entered into a handwritten, month-to-month lease of the lake home which granted the Corbins exclusive use of the property for $1,100 per month. Although the lease did not contain a termination clause, the parties understood that it could be cancelled at any time. Corbin also agreed to let Moss show the home to prospective buyers. Moss was responsible for utility bills, and Corbin was responsible for keeping the property clean and for paying for any damage that he caused to it.

Just six days after the lease was signed, Heather Corbin sustained bodily injuries allegedly as a result of a fall caused by a hazardous condition on the property. The Corbins vacated the premises shortly thereafter. Moss never stayed the night in the lake home again; rather, she visited it only rarely and for the purpose of performing maintenance. She sold the home in September 2013. The Corbins filed suit against Moss on August 9, 2013.

Moss’s homeowner’s policy excludes coverage for personal injuries sustained by a tenant renting the insured premises. Section II l.b. of the policy provides that “Coverage L [liability] and Coverage M [medical payments to others]” do not apply to “bodily injury or property damage arising out of. . . the rental or holding for rental of any part of any premises by any insured.” However, the exclusion does not apply “to the rental or holding for rental of a residence of yours ... on an occasional basis for the exclusive use as a residence[.]” The policy provides no definition of the term “occasional.”

It is undisputed that the Corbins rented Moss’s lake house. The parties also acknowledge that the word “occasional,” as used in the policy, is not ambiguous. Thus, the issue on appeal with respect to this exception to the rental exclusion is whether the superior court erred in concluding that material issues of fact remain concerning whether the rental was “occasional.”

Although Georgia’s appellate courts have not elaborated on what evidence demonstrates that a rental is occasional as a matter of law, other jurisdictions have set forth factors demonstrating that a property has been rented on an occasional basis, including the following. Occasional rentals are episodic and temporary, not systematic and continuous. The occasional rental is typically short term, often has a special purpose (e.g., a vacation rental), and usually has a definite end point. Most significantly, however, the occasional rental does not negate the assumption that the homeowner intends to continue using the home as a residence, despite his or her temporary absence. As one court has explained, “[t]he purpose behind the ‘occasional’rental exception [to the rental exclusion] was to allow the insured to rent his or her residence while living elsewhere temporarily, but with the intention to return there to live.” State Farm Fire & Cas. Co. v. Wonnell, 178 Ill. App. 3d 823, 826 (533 NE2d 1131) (1989).

Under Georgia law, an insurer seeking to invoke a policy exclusion carries the burden of proving its applicability in a given case. Furgerson v. Cambridge Mut. Fire Ins. Co., 237 Ga. App. 637, 638 (1) (516 SE2d 350) (1999). State Farm has carried that burden here. In this case, the undisputed evidence shows that Moss had listed her lake house for sale in 2010 and that she had stopped using it as a secondary residence prior to renting it to the Corbins in 2012. The Corbins had planned to rent the lake house at least through the summer; however, they had also expressed interest in buying the property The lease term had no end-point, and it could have continued indefinitely. Thus, the evidence does not support an inference that the parties were only contemplating a short-term vacation rental. Most significantly, though, the evidence unequivocally shows that Moss had no intention of returning to the property and using it as a secondary residence or vacation home if and when either she or the Corbins terminated the lease. Rather, she intended to sell the lake home and to continue residing in her McDonough home. In fact, that is exactly what she did. Thus, Moss was no longer treating the lake home as her residence when she leased it to the Corbins. Instead, she treated the lake home as a rental property, a circumstance that exposed the insurer to all the risks inherent in such a landlord/tenant relationship, risks that it had not agreed to bear. See State Farm Fire & Cas. Co. v. Wonnell, 178 Ill. App. 3d at 825-826 (In affirming a grant of summary judgment to the insurer, the appellate court observed that the lessee’s month-to-month rental was not irregular or infrequent. Moreover, the lessor had no intent to return to the premises while her home was listed for sale.).

Decided September 7, 2016

Reconsideration denied September 23, 2016

Hedrick Law, L. Bruce Hedrick, Jr., for appellant.

Katz, Stepp, Wright & Fleming, Robert N. Katz, Lyn B. Dodson, for appellees.

The undisputed evidence shows that Moss did not rent her lake home to the Corbins on an occasional basis; therefore, the rental exclusion applies. Because the rental exclusion applies, the policy does not provide Moss with coverage for the Corbins’ claims in the underlying personal injury litigation. Consequently, the superior court erred in denying State Farm’s motion for summary judgment on this basis as well as granting the Corbins’ motion for partial summary judgment. Given our holding, State Farm’s remaining claim of error is moot.

Judgment reversed.

Mercier, J., concurs. Branch, J., concurs in judgment only.

       This Court must construe an insurance contract using ordinary rules of contract construction. State Farm Fire and Cas. Co. v. Bauman, 313 Ga. App. 771, 773 (723 SE2d 1) (2012). “Ambiguities in an insurance contract are construed favorably to the insured and against the insurer, particularly if exemptions or exclusions are at issue.” (Citation omitted.) American Nat. Property and Cas. Co. v. Amerieast, Inc., 297 Ga. App. 443, 446 (1) (677 SE2d 663) (2009). However, “unambiguous terms of an insurance policy require no construction, and the plain meaning of such terms must be given full effect, regardless of whether they might be beneficial to the insurer or detrimental to the insured.” (Footnote omitted.) Grain Dealers Mut. Ins. Co. v. Pat’s Rentals, 269 Ga. 691, 693 (505 SE2d 729) (1998). A word or phrase is ambiguous only if it “may be fairly understood in more ways than one” and thus “involves a choice between two or more constructions of the contract.” State Farm Fire and Cas. Co. v. Bauman, 313 Ga. App. at 774. In Bauman we explained that the “American Heritage Dictionary (3rd ed.) defines ‘occasional’ as ‘[ojccurring from time to time’ ” and that, applying this definition to the policy language at issue in that case, we found no ambiguity in the word “occasional.” Id. Similarly, in State Farm Fire & Cas. Co. v. Goodman, 259 Ga. App. 62, 66 (3) (b) (576 SE2d 49) (2002), we concluded that the term “occasional,” as applied to the rental of insured residential premises, was not ambiguous, and that “[f]or the rental exclusion to apply, the evidence must show that [the insured] rented her residence to [the tenants] on something other than an occasional basis.” Id. Thus, the question before us is not one of contract construction, but of what the evidence shows.

       See, e.g., State Farm Fire and Cas. Co. v. Bauman, 313 Ga. App. at 774. (“Occasional” means “[occurring from time to time, . . . [n]ot habitual; infrequent.”) (punctuation omitted); Martin v. Cotton States Mut. Ins. Co., 210 Ga. App. 32, 33 (435 SE2d 258) (1993) (Continuously renting the premises to a series of tenants is contrary to the definition of an occasional rental.); Gardner v. Travelers Property Cas.Co. of America, 2011 U.S. Dist. LEXIS 69848 (III) (B) (N.D. N.Y., June 29, 2011) (“[T]he phrase ‘the rental ... of an insured location ... on an occasional basis’ . . . refers to episodic, non-systematic rentals.”) (citation omitted).

       See, e.g., Villanueva v. Preferred Mut. Ins. Co., 48 AD3d 1015, 1017 (851 NYS2d 742) (2008) (“[The insureds’] one-time rental of their summer home for a five-month period, with no definite plans to continue to rent the home but with the intent to return to use the summer home exclusively themselves, fits comfortably within [the ‘occasional rental’ exception to the rental exclusion].”); Hess v. Liberty Mut. Ins. Co., 458 So2d 71, 72 (Fla. 1984) (“The reasonable, practical and sensible interpretation of the language ‘any part of a premises occasionally rented to any insured for other than business purposes’ does not refer to the situation where a father co-signs a one year lease for his daughter. Rather it refers to rentals occurring now and then, such as vacation rentals.”).

       See, e.g., Gardner v. Travelers Property Cas. Co. of America, 2011 U.S. Dist. LEXIS 69848, *11 (III) (B) (N.D. N.Y., June 29, 2011) (“Plaintiffs’ rental of the [premises], on three occasions over a four-year period, which plaintiffs used primarily as their residence when in Bolton Landing, and which they always intended to return to, cannot be said to have been more than ‘on an occasional basis.’ ”); State Farm Fire & Cas. Co. v. Piazza, 132 Wash. App. 329, 333 (II) (131 P3d 337) (2006) (“An‘occasional’rental should be interpreted consistent with thepurposes of a homeowner’s insurance policy, as opposed to a landlord’s insurance policy. That means that the circumstances of the rental must not negate the assumption that the homeowner is still the primary resident of the house, despite his or her temporary absence.”); Ferguson v. State Farm Fire & Cas. Co., 1995 U.S. App. LEXIS 25229, *12 (9th Cir. Sept. 5, 1995) (finding that a three-month tenancy, without interruption, was not “irregular” or “infrequent” and, thus, was not on an “occasional basis,” where the owner moved away, was attempting to sell the house, and did not intend to resume living there, and the tenant “only moved out after being given a notice to quit”).


author: PHIPPS, Presiding Judge.

text:
    A16A1088.
    CHARLES v. THE STATE.
    (791 SE2d 584)
   PHIPPS, Presiding Judge.

Trey Charles challenges the rejection of his request to withdraw his guilty plea. Because Charles has failed to demonstrate that he was entitled to such relief, we affirm.

Accused of using a handgun to take property from the person of another, Charles was indicted in DeKalb County Superior Court as follows: Count 1 — armed robbery; Count 2 — aggravated assault; and Count 3 — possession of a firearm during the commission of a felony. Represented by counsel, Charles pled guilty to the reduced offense of robbery, aggravated assault, and firearm possession during the commission of a felony; Charles also asked to be treated under the First Offender Act.

On December 9, 2014, the court sentenced Charles pursuant to that Act, imposing upon him: (i) for Count 1 — fifteen years to serve ten; (ii) for Count 2 — fifteen years to serve ten, concurrently with the sentence imposed for Count 1; and (iii) for Count 3 — five years to serve on probation, consecutively to the sentences imposed for the other two counts.

A few months later, pro se, Charles sent a letter to the clerk of the DeKalb County Superior Court. Therein, Charles asserted, “Ive [sic] had time to think. I do not agree with this plea.... I wish to withdraw my guilty pled [sic].”

After obtaining new counsel, Charles pursued the following three motions in the sentencing court. On September 20, 2015, Charles filed a “Motion to Vacate Illegal Conviction,” asserting:

This Court sentenced Mr. Charles for both armed robbery and aggravated assault. The charged aggravated assault was for pointing a deadly weapon at [the victim]. But as the facts of this case make clear, such pointing was done simultaneously with, and simply to accomplish, the armed robbery In these circumstances, the two charges must merge.... Mr. Charles urges this Court to vacate his illegal sentence.

In a subsequent pleading, Charles sought a ruling on what he asserted was his original request to withdraw his guilty plea — his letter to the clerk. In such subsequent pleading, captioned “Amended Motion to Withdraw Guilty Plea,” Charles claimed that due to his plea counsel’s ineffectiveness, “his guilty plea was not knowing and voluntary”; and that had he understood “the true nature of the plea he was being asked to make, he would have rejected the guilty plea and proceeded to trial.”

In a third motion, Charles sought an out-of-time appeal for the purpose of pursuing the merger issue. According to Charles, such issue could be resolved by facts appearing of record.

The sentencing court convened an evidentiary hearing, at which Charles and his plea counsel took the stand. Charles testified that, when he pled guilty, he was of the understanding that he was pleading guilty only to the reduced charge of robbery; that he was not then aware that he was pleading guilty also to aggravated assault and to firearm possession; that he further had believed that being sentenced as a first offender meant that he would serve no prison time because “I was going to get straight probation”; and that, had he known otherwise, he would have gone to trial. Charles was specifically asked at the motion hearing, “Did your attorney consult with you about what a first offender sentence is?” Charles answered, “No, not really.” Charles reiterated, “I thought first offender meant straight probation. That’s the only reason why I took the plea because of first offender.”

When Charles’s plea counsel took the stand at the motion hearing, he gave a different account. He testified that, during plea negotiations, he discussed with Charles the specifics of the state’s offer, including that the armed robbery charge would be reduced to robbery, but that neither the aggravated assault nor the firearm possession charge would get reduced, dismissed, nolle prossed, or otherwise “go away.” Plea counsel testified that, during plea negotiations, he had discussed with Charles the sentencing aspect of the state’s offer. Plea counsel was specifically asked at the motion hearing, “Did you ever have a discussion with him that first offender sentence did not mean straight probation?” The attorney answered, “Absolutely,” recalling having had multiple conversations with Charles about first offender sentencing. Plea counsel testified that he had advised Charles that a “first offender plea” did not necessarily mean no prison time. Plea counsel went on to testify that he had specifically informed Charles that in his particular case, the state had offered to recommend, as plea counsel summarized at the motion hearing: “fifteen to do ten on the robbery and the aggravated assault, and the gun charge had to run consecutive.”

At the close of the evidence, the prosecutor sought confirmation that “the plea transcript is considered part of the record,” and the court responded, “Yes, Ma’am.” Thereafter, onDecember 23,2015, the sentencing court entered a detailed order on Charles’s three motions: (i) rejecting his request to withdraw his guilty plea; (ii) granting his request to merge the aggravated assault count into the robbery count for sentencing purposes (explicitly vacating the aggravated assault sentence); and (iii) denying Charles’s motion for an out-of-time appeal as moot.

In his sole claim of error on appeal, Charles contends that the sentencing court should have allowed him to withdraw his guilty plea. For reasons explained below, Charles has demonstrated no reversible error.

Charles’s request to withdraw his guilty plea was rejected on procedural and substantive grounds. The sentencing court explained in its order that Charles’s motion was procedurally inept because Charles had failed to establish that his motion was timely filed. As a general rule, “a defendant must file a post-sentencing motion to withdraw a guilty plea in the same term in which he was sentenced. After the expiration of that term, the trial court lacks jurisdiction to allow the withdrawal of the plea.” Charles was initially sentenced by the DeKalb County Superior Court on December 9, 2014, during that court’s November 2014 term. Charles filed his “Amended Motion to Withdraw Guilty Plea” on September 20, 2015, characterizing his earlier letter to the clerk as his original motion to withdraw his guilty plea. Even accepting arguendo Charles’s contention that the letter constituted a motion to the superior court, that document was filed on Monday, January 5, 2015 — thus, after the term of court during which Charles was sentenced.

Relying upon an exception to the general rule, Charles urges on appeal that his (amended) motion to withdraw his guilty plea was nevertheless timely presented to the sentencing court. He points out that in its December 23, 2015 order, the sentencing court granted his “Motion to Vacate Illegal Conviction,” thereby explicitly vacating his sentence for aggravated assault and merging that count into the (armed) robbery count. Those circumstances, Charles argues, invoke the exception: “Where a void sentence has been entered, it is as if no sentence has been entered at all, and the defendant stands in the same position as if he had pled guilty and not yet been sentenced. And pursuant to OCGA § 17-7-93 (b),[| the defendant may withdraw his plea as of right prior to [re] sentencing,” — “even following the expiration of the term of court in which the void sentence was pronounced.”

Charles does not assert, and the record does not establish, that Charles argued this exception to the sentencing court. But even accepting arguendo Charles’s position that his initial aggravated assault sentence was “void” such that his (amended) motion to withdraw his guilty plea was properly before the sentencing court, Charles has failed to demonstrate error in the court’s (alternative) conclusion that his motion lacked substantive merit. In that regard, the sentencing court explained in the order:

Regardless [of the timeliness issue pertaining to Charles’s (amended) motion], upon review of the evidence presented at the hearing, the guilty plea transcript, and this Court’s recollection of the plea, the guilty plea entered by Defendant Charles was entered knowingly, intelligently and voluntarily When the plea was entered by the Defendant the Defendant was clearly informed of what the State’s recommendation of sentence was. Additionally, the Court directly informed the Defendant of what charges to which he was entering a plea of guilty Lastly, the Defendant was instructed to begin his sentence by reporting to the DeKalb County Jail no later than December 26, 2014 at 5:00 p.m. Consequently, this Court finds that the Defendant’s testimony at the motion hearing was not credible. Further, the Defendant has failed to establish any manifest injustice or that he received ineffective assistance of counsel.

These findings are amply supported by the record. When Charles entered his guilty plea on December 9, 2014, he was 25 years old. At the start of the plea hearing, the prosecutor presented a factual basis of the underlying criminal incident that had occurred about two years prior, on October 12, 2012. Next, Charles took the stand and was asked by the prosecutor whether he understood that the state’s plea offer included: “a sentence of fifteen years to serve ten as to Count 1, ten years to serve as to Count 2 concurrent with Count 1, and five years probation as to Count 3 to be served consecutive to Counts 1 and 2 .. . ?” Charles answered, “Yes, Sir.” Charles then testified about the details of the underlying criminal incident, after which the prosecutor revisited:

Q: Mr. Charles, do you understand that the District Attorney has made the following recommendations?
A: Yes, Sir.
Q: Aplea to Count 1 reduced to robbery from armed robbery?
A: Yes, Sir.
Q: With a sentence of fifteen years to serve ten as to that reduced Count 1. A sentence of ten years to serve as to Count 2 to run concurrent to the sentence in Count 1?
A: Yes, Sir.
Q: And a sentence of five years probation as to Count 3 to run consecutively to Counts 1 and 2, for a total sentence of twenty years to serve ten on robbery, as opposed to armed robbery, aggravated assault, and possession of a firearm during commission of a felony . . . ?
A: Yes, Sir.
Q: Do you understand that?
A: Yes, Sir.
Q: And knowing all this, it’s still your intention to plead guilty?
A: Yes, Sir.

Thereupon, the court’s pronouncement of sentence pertinently included:

Decided September 26, 2016.

Gerard B. Kleinrock, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Anna G. Cross, Assistant District Attorneys, for appellee.

The court approves your request for first offender treatment, and therefore withholds any formal adjudication of guilt, and sentences you under the First Offender Act on Count 1 for robbery to fifteen years to serve ten years in custody and the rest on probation, on Count 2 for aggravated assault... fifteen to do ten on the aggravated assault, too, to run concurrently. And five years on probation on Count 3 to run consecutively.... You’ll report to the DeKalb County jail no later than December 26th at 5:00 p.m.

Thereafter, the court asked Charles, “Do you understand what I’m saying?” Charles answered, “Yes, Sir.” The court then broadly asked, “Do you have any questions?” Charles replied, “No, Sir.”

Although Charles later testified (in support of his Amended Motion to Withdraw his Guilty Plea) that, due to his plea counsel’s ineffectiveness, he was under the misapprehension that he was pleading guilty only to robbery and that he would serve no prison time because any sentence imposed would be fully probated, the sentencing court was neither obligated to accept Charles’s testimony as credible, nor required to reject the account given by plea counsel.

In light of the foregoing, Charles has failed to demonstrate that he was entitled to withdraw his guilty plea, and we will therefore not disturb the judgment entered against him.

Judgment affirmed.

Dillard and Peterson, JJ., concur.

       OCGA § 42-8-60 et seq.

       See OCGA § 42-8-60 (a) (“When a defendant has not been previously convicted of afelony, the court may, upon a guilty verdict or plea of guilty or nolo contendere and before an adjudication of guilt, without entering a judgment of guilt and with the consent of the defendant, defer further proceedings and: (1) Place the defendant on probation; or (2) Sentence the defendant to a term of confinement.”).

       (Citations omitted.)

       See generally OCGA § 17-10-1 (f) (“Within one year of the date upon which the sentence is imposed, . . . the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed.”); von Thomas v. State, 293 Ga. 569, 571 (2) (748 SE2d 446) (2013) (“When a sentencing court has imposed a sentence of imprisonment, its jurisdiction to later modify or vacate that sentence is limited. The sentencing court generally has jurisdiction to modify or vacate such a sentence only for one year following the imposition of the sentence.”) (citation and footnotes omitted).

       See generally Nazario v. State, 293 Ga. 480, 488 (2) (d) (746 SE2d 109) (2013) (explaining that a merger claim may be considered on direct appeal); Smith v. State, 287 Ga. 391, 402 (3) (697 SE2d 177) (2010) (“A direct appeal - timely or untimely -from a guilty plea is available only if the issue on appeal can be resolved by facts appearing in the record.”) (citation and punctuation omitted); Morrow v. State, 266 Ga. 3 (463 SE2d 472) (1995) (“An out-of-time appeal is occasionally appropriate where, due to ineffective assistance of counsel, no appeal has been taken. However, an appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record.”).

       In its order, the sentencing court explained, “The motion for out of time appeal is based upon the allegation that the sentences for aggravated assault and robbery should have merged. As this Court has vacated the sentence for aggravated assault due to the merger ..., the motion for out of time appeal is hereby DENIED as moot.” Indeed, at the motion hearing, Charles’s post-conviction counsel posited to the court that “the motion for an out-of-time appeal should be granted, and/or this court could just vacate the illegal aggravated assault conviction on the grounds that it should have merged.”

        Kaiser v. State, 285 Ga. App. 63, 65 (1) (646 SE2d 84) (2007); see McGee v. State, 296 Ga. 353 (1) (765 SE2d 347) (2014) (“[W]hen the term of court has expired in which a defendant was sentenced pursuant to a guilty plea, the trial court lacks jurisdiction to allow the withdrawal of the plea.”) (citation and punctuation omitted); Grady v. State, 311 Ga. App. 620, 621 (716 SE2d 747) (2011) (“A motion to withdraw a guilty plea must be filed within the term of court in which the sentence was imposed.”) (citations omitted).

       See OCGA § 15-6-3 (37) (2014) (providing that the terms of the DeKalb County Superior Court commence on the “[f] irst Monday in January, March, May, July, September, and November”).

       See generally McKiernan v. State, 286 Ga. 756-759 (692 SE2d 340) (2010) (explaining that defendant’s letter to the trial judge - asking to withdraw his guilty plea and requesting the court to appoint new counsel for trial, which letter was filed in the clerk’s office of the sentencing court - should have been treated as a motion to withdraw guilty plea).

       See OCGA § 15-6-3 (37) (2014).

       (providing in pertinent part, “At any time before judgment is pronounced, the accused person may withdraw the plea of ‘guilty’ and plead ‘not guilty.’ ”).

        Kaiser, supra at 66 (1).

        Hallford v. State, 289 Ga. App. 350, 351 (1) (657 SE2d 10) (2008); see Kaiser, supra at 68-69 (1).

        Hulett v. State, 296 Ga. 49, 58 (4) (766 SE2d 1) (2014) (“[A]n appellant is limited on appeal to the grounds which he properly presented in the trial court.”) (citation and punctuation omitted).

       “[A] sentence is void if the court imposes punishment that the law does not allow[,] . . . most typically because it exceeds the most severe punishment for which the applicable penal statute provides.” von Thomas, supra at 571-572 (2) (citations and punctuation omitted). Compare Spencer v. State, 309 Ga. App. 630, 631 (2) (710 SE2d 837) (2011) (determining that because sentence was within statutory range, it was not void; thus, appellant had no absolute right to withdraw his guilty plea), with Franks v. State, 323 Ga. App. 813, 814 (748 SE2d 291) (2013) (determining that, because sentence was outside statutory range, it was void; thus, appellant had absolute right to withdraw his guilty plea before resentencing).

       Charles contends that State v. Hudson, 293 Ga. 656, 660 (748 SE2d 910) (2013) recognizes that “[w]here [a sentencing] scheme unravels due to elimination of some of the original counts, the judge should be given a wide berth to fashion a new sentence that accurately reflects the gravity of the crimes for which the defendant is being resentenced”) (citation omitted). See, however, Nazario, supra at 488 (2) (d) (explaining that “a merger claim cannot be considered in a free-standing ‘motion to vacate a sentence and/or vacate a conviction as void or pleadings of a similar nature’ rather, “a merger claim must come before the court in a type of proceeding in which criminal convictions may be challenged”) (citation omitted); Williams v. State, 287 Ga. 192, 194 (695 SE2d 244) (2010) (concluding that “[appellant’s] claim of failure to merge ... is a challenge to his criminal conviction and a motion to correct illegal sentence or conviction is not an appropriate remedy to attack a conviction in a criminal case”), cited in Nazario, supra at 484 (2) (b), n. 2 for the proposition that “merger claims are claims that convictions (as well as the resulting sentences) are void and thus cannot be raised in a free-standing motion to vacate void sentence”); Gholston v. State, 327 Ga.App. 790, 791 (761 SE2d 189) (2014) (rejectingappellant’s contention that his motion to withdraw guilty plea “was timely because he was challenging his sentence as void, and a void sentence can be challenged at any time,” explaining that “[appellant’s] claim that his convictions for armed robbery and robbery by force should have merged is a claim challenging his convictions and not a claim that his resulting sentence was void” and that “a sentence is not void if it falls within the statutory range of punishment”) (citations and punctuation omitted). See also Simmons v. State, 315 Ga. App. 82, 84 (2) (726 SE2d 573) (2012) (determining that the appellant, “having availed himself of the First Offender Act, did not retain the right to withdraw his guilty plea as a matter of right pending entry of an adjudication of guilt”); Spencer, supra at 630-631 (2) (rejecting appellant’s contention that his original “sentence was void, therefore, his motion [to withdraw his guilty plea] was timely, and he had a right to withdraw his guilty plea,” explaining that appellant’s argument that “his aggravated assault conviction[ ] should have been merged into his armed robbery convictions [was] a challenge to his conviction, not the sentence; thus, the failure to merge would not render the sentence void”) (citation omitted).

       (Citations omitted.)

       See Silvey v. State, 335 Ga. App. 383, 394 (3) (a) (780 SE2d 708) (2015) (“[W]hen considering claims of ineffectiveness of counsel, the trial judge determines witness credibility and is not required to accept the defendant’s version of events.”) (citation and punctuation omitted); Biggins v. State, 322 Ga.App. 286, 291 (3) (a) (744 SE2d 811) (2013) (same); Lawton v. State, 285 Ga. App. 45, 47 (645 SE2d 571) (2007) (noting that “the trial court, which sat as the finder of fact for purposes of the . . . hearing, was entitled to disbelieve” the defendant).

       See generally Barron v. State, 297 Ga. 706, 707 (2), n. 3 (777 SE2d 435) (2015) (“Harm as well as error is required for reversal.”) (citation omitted).


author: Dillard, Judge.

text:
    A16A0899.
    In the Interest of M. P.
    (791 SE2d 592)
   Dillard, Judge.

The probate court granted Milton Pond guardianship of his 21-year-old son, M. P, who is a person with autism. Yolanda Pond, Milton’s former wife and M. P’s mother, appeals that decision, arguing that the court erred in finding that it had personal jurisdiction over M. P, granting guardianship to Milton absent clear and convincing evidence in his favor, and applying the incorrect standard of proof for selection of a guardian. For the reasons set forth infra, we affirm.

The record shows that M. P, Milton and Yolanda’s adult son, was diagnosed with autism when he was three years old. In 1997, Yolanda was granted physical custody of M. P, and since that time, he has lived with his mother during each school year in Fayetteville, North Carolina, and with his father and stepmother during the summer in Savannah, Georgia. But in 2015, when M. P was 20 years old, he refused to return to North Carolina after spending the summer with his father in Georgia. And on August 25, 2015, Milton filed a petition for guardianship of M. P in Chatham County, Georgia, asserting that guardianship was necessary because M. P “lacks sufficient capacity to make or communicate significant responsible decisions concerning his . . . health or safety” In the petition, Milton claimed that, while M. P “can make some of his own decisions at times,... he needs ongoing guidance.” Specifically, Milton indicated that his reasons for seeking guardianship of his son were that M. P needed ongoing training for independent living with daily assistance, safety supervision while cooking, assistance with physical, medical, and mental-health decisions, as well as assistance with other quality-of-life decisions.

Thereafter, the trial court ordered that M. P be evaluated by a doctor in connection with Milton’s request for guardianship. In addition, upon Milton’s request, the court appointed an attorney/ guardian ad litem to represent M. P. in this matter. Subsequently, in compliance with the court’s order, the doctor evaluated M. P. and submitted a detailed report, in which he concluded that M. P was incapacitated by reason of autism-spectrum disorder and met the standard necessary for granting a guardianship. Then, shortly after the doctor submitted his report, Yolanda, proceeding pro se, filed an objection to Milton’s guardianship petition, contending that she had raised their son for 20 years, detailing some of the activities that he had participated in while living with her in North Carolina, and claiming that M. P only lived in Georgia with his father during the summer.

Next, M. P’s attorney submitted a report, in which he agreed with Milton that, due to M. P’s autism, he cannot make or communicate significant responsible decisions for his own health and safety The attorney further reported that he had met with M. P outside of Milton’s presence, and during the meeting, M. P was “adamant that he wanted to remain with his father so that he could participate in outside activities.” According to the attorney, M. P stated that, when he was living in North Carolina with his mother, he was “unable to participate in activities and spent most of his time at home alone.” Although M. P’s statements conflicted with those of his mother, the attorney found him to be “very credible.” As a result, M. P’s attorney concluded that it would be in M. P’s best interests for his father to be appointed as his guardian.

Having then obtained counsel, Yolanda filed an amended objection to the guardianship petition, contending that the (Georgia) probate court lacked personal jurisdiction over M. P because he was domiciled in North Carolina. Nevertheless, after holding a hearing on the matter, the probate court rejected those arguments and appointed Milton as M. P’s guardian, noting that he was “suitable and available to serve.” This appeal by Yolanda follows.

At the outset, we note that in reviewing an order on a petition for guardianship, we will not set aside the probate court’s findings “unless they are clearly erroneous[,] [a]nd [when] such findings are supported by any evidence, they will be upheld on appeal.” The probate court’s application of the law, however, is subject to de novo review. With these guiding principles in mind, we turn now to Yolanda’s specific claims of error.

1. Yolanda first argues that the probate court erred in finding that it had personal jurisdiction over M. P. for purposes of ruling on Milton’s guardianship petition. We disagree.

We first note that, in reviewing a lower court’s ruling on the existence of personal jurisdiction, this Court resolves all disputed issues of fact “in favor of the party asserting the existence of personal jurisdiction, bearing in mind that it is the movants who bear the burden of proving that Georgia courts lack personal jurisdiction over them.” And under OCGA § 29-4-1 (a), a court “may appoint a guardian for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety” Furthermore, guardianship petitions must be filed

in the court of the county in which the proposed ward is domiciled or is found, provided that the court of the county where the proposed ward is found shall not have jurisdiction to hear any guardianship petition if it appears that the proposed ward was removed to that county solely for the purposes of filing a petition for the appointment of a guardian.

As to determining a person’s domicile, OCGA § 19-2-1 provides:

(a) The domicile of every person who is of full age and is laboring under no disability is the place where the family of the person permanently resides, if in this state. If a person has no family or if his family does not reside in this state, the place where the person generally lodges shall be considered his domicile.
(b) The domicile of a person sui juris may be changed by an actual change of residence with the avowed intention of remaining at the new residence. Declaration of an intention to change one’s domicile is ineffectual for that purpose until some act is done in execution of the intention.

As our Supreme Court has explained, “[tjhere must be a concurrence of actual residence and the intention to remain[ ] to acquire a domicile. If a person actually removes to another place, with the intention of remaining there for an indefinite time as a place of fixed domicile, such place becomes his domicile.” Indeed, there must be “either the tacit or the explicit intention to change one’s domicile before there is a change of legal residence.” Nevertheless, a person who is “mentally incompetent and who moves from one place to another may lack the mental capacity to change his or her domicile.” Lastly, we note that the question of domicile is “a mixed question of law and fact[,] and is ordinarily one for [the factfinder], and should not be determined by the court as a matter of law except in plain and palpable cases.”

In the case sub judice, the undisputed evidence shows that M. R, who is no longer a minor, has an actual residence in Chatham County, Georgia, with his father, and he has explicitly expressed an intention to stay there. Specifically, according to Milton, M. R refused to return to North Carolina in August 2015 after spending the summer in Savannah. Additionally, M. P.’s attorney reported that M. P. was “adamant” that he wanted to remain in Georgia with his father, and the attorney found M. P to be credible. Under such circumstances, even if M. P was previously domiciled in North Carolina, there was ample evidence to support the probate court’s finding that M. P had changed his domicile to Chatham County, Georgia, by the time of this proceeding because he had moved to Chatham County, where he had an actual residence, and he explicitly expressed his intention to remain there.

Nevertheless, Yolanda argues that M. P lacked the mental capacity to change his domicile from North Carolina to Georgia. And in support of this contention, she notes that the doctor’s report found that M. P was “naive[,] suggestible, and vulnerable to the influence of others” and that she and her sister had trouble communicating with M. P when he was in his father’s care (and testified to this effect before the probate court). We find this argument unavailing. Although the probate court, in granting the guardianship petition, necessarily found that M. P “lacks sufficient capacity to make or communicate significant responsible decisions concerning his ... health or safety,” there was evidence to support the court’s conclusion that M. P was not so mentally incapacitated that he was incapable of changing his domicile. In fact, during the hearing, Yolanda’s counsel represented to the probate court that she “in no way contends that [M. P] is incompetent in terms of what we usually think of as an incompetent person.” Instead, her position was just that M. P “labors under a significant disability due to his autism.”

Additionally, in expressing his “adamant” desire to remain in Georgia to his attorney, M. P was able to articulate some of the reasons underlying his decision. Specifically, M. P indicated that he wanted to stay with his father so that he could participate in outside activities, explaining that, in North Carolina, he was unable to participate in such activities and spent most of his time at home alone. And when M. P’s attorney was specifically asked by the probate court about M. P’s mental ability to change his domicile, the attorney responded that M. P “very clearly intended to move to Savannah, Georgia,” “he was very lucid . . . that he wanted to be [t]here,” and his decision to move was voluntary. Indeed, based on his interview with M. R, counsel believed that M. R was “very competen t to express his intention to remain in Chatham County.”

Furthermore, despite some of M. R’s educational challenges related to autism, the doctor who evaluated him found that he would be “a good candidate to eventually live in a group home and learn a repetitive job skill.” And as to M. R’s decision-making abilities, Milton testified that he did not need to make M. R’s decisions for him, but rather, Milton intended only to “coach” his son to make better decisions. In fact, Milton testified that if M. R changed his mind about where he wanted to live, he would be free to “go wherever he wants,” but that Milton had filed the petition for guardianship in Georgia because his son had expressed a desire to live there. Given the foregoing, we simply cannot say that there was no evidence to support the probate court’s finding that M. R had the mental capacity to change his domicile.

Nevertheless, to support her apparent argument that an individual who satisfies the standard for guardianship is necessarily mentally incapable of changing his or her domicile, Yolanda relies on cases in which the ward at issue, unlike M. R, was found to be “mentally incapacitated” or “mentally incompetent.” For example, in Sorrells v. Sorrells, the Supreme Court of Georgia held merely that a person who is mentally incompetent and moves from one place to another may lack the mental capacity to change his or her domicile. And although the Court in Sorrells did not provide specific details regarding the ward’s mental capabilities, it noted that she was “mentally incompetent” and physically unable to care for herself. Under such circumstances, the Court held that there was sufficient evidence to authorize the factfinder to conclude that the ward lacked the requisite mental capacity to acquire a new domicile of choice. Nevertheless, nothing in Sorrells or the other cases cited by Yolanda suggests that a person who qualifies for guardianship is always “mentally incompetent” to change his or her domicile. And here, as explained supra, there is evidence to support the probate court’s finding that M. R, who undoubtedly faces certain challenges due to his autism, was not so mentally impaired that he lacked capacity to choose Georgia as his domicile.

2. Next, Yolanda argues that the probate court erred in granting guardianship to Milton in the absence of clear and convincing evidence in his favor. Again, we disagree.

As to this claim of error, Yolanda is mistaken that there must be “clear and convincing evidence” to establish that a petitioner is suitable to be appointed guardian. Instead, the clear-and-convincing-evidence standard applies to the court’s determination regarding the need for a guardianship relationship in the first place. And if the probate court finds that guardianship is warranted, it must then evaluate whether appointment of the person seeking guardianship is in the best interest of the ward, not whether clear and convincing evidence supports the appointment of any particular guardian. In the case sub judice, it was undisputed by the parties and the professionals who examined M. R that he satisfied the standard set forth in OCGA § 29-4-1 (c) and was in need of a guardian. In granting guardianship to Milton, the court noted that there was a medical evaluation concluding that M. P. needed a guardian, the only proposed guardian before the court was Milton, and there was no evidence that Milton was unfit to be M. P.’s guardian. Thus, regardless of the particular language used by the probate court, it at least implicitly found that the appointment of Milton as guardian was in M. P’s best interest.

Further, the court’s finding in this regard is supported by at least some evidence because the attorney who interviewed and evaluated M. P reported that granting Milton’s guardianship interest would be in M. P’s best interest. Specifically, the attorney’s report stated:

The petitioner, [M. P’s] father[,] stated that he wanted the guardianship so that he could enroll [M. P] in the Coastal Development Center and assist him with other matters. I agree that this would be in his best interest.
I concur that it would be in M. P’s best interest for the Court to appoint a guardian. Due to the willingness of his father to serve in this role and [M. P’s] desire to remain with this father, [M. P] would be best served if the Court appointed [Milton] as his [g]uardian.

In sum, Yolanda is incorrect that the probate court’s selection of a guardian must be supported by clear and convincing evidence, and in this case, the probate court correctly considered whether granting guardianship to Milton was in M. P’s best interest. Because there is evidence to support the probate court’s apparent conclusion that granting Milton’s petition for guardianship was in M. P’s best interest, we must uphold its decision on appeal.

Decided September 27, 2016.

Gannam, Gnann & Steinmetz, J. Hamrick Gnann, Jr.; Daryl J. Walker, for appellant.

John E. Pirkle, for appellee.

3. Lastly, Yolanda argues that the probate court erred in applying an incorrect standard of proof for selecting a guardian when it required her to prove that Milton was unfit to serve as M. P.’s guardian, which is a “much higher standard of proof than merely proving oneself to be better suited than another to serve as guardian.” In support, she references only the probate court’s statement that there had been no evidence that Milton was unfit to be M. P.’s guardian. However, there is nothing in the record to suggest that the probate court placed any burden of proof on Yolanda to show that Milton is not fit to be M. P’s guardian. Indeed, merely because the probate court acknowledged the fact that there was no evidence that Milton was unfit to be M. P’s guardian does not mean that the petition would automatically be granted unless Yolanda proved otherwise. Regardless, our discussion and holding in Division 2, supra, establishes that the probate court applied the correct standard of proof in finding that granting Milton’s guardianship petition was in M. P’s best interest.

For all of the foregoing reasons, we affirm the probate court’s grant of guardianship to Milton.

Judgment affirmed.

Phipps, P. J., and Peterson, J., concur.

       The Court is aware that there is disagreement within the Autism and Autistic communities over whether to use person-first language (e.g., “person with autism”) or identity-first language (e.g., “autistic person”) when referring to people with autism. We have chosen to use person-first language throughout this opinion in order to emphasize, first and foremost, the humanity and inherent dignity of M. R See generally Autism Speaks, About Autism: What You Need to Know, https://www.autismspeaks.org/sites/default/files/afyo_about_autism.pdf (last visited September 13, 2016). Nevertheless, we understand and respect the views of those who prefer identity-first language and in no way mean to cause offense in using person-first language.

       Milton’s wife, M. P.’s stepmother, joined Milton’s petition for guardianship, but she is not a party to this appeal because guardianship was granted solely to Milton.

        In re Cash, 298 Ga. App. 110, 110 (679 SE2d 124) (2009) (citation and punctuation omitted); see also In re Estate of Price, 324 Ga. App. 681, 681 (751 SE2d 487) (2013) (“Where a probate court sits as a finder of fact, we accept its findings if they are supported by any evidence.”).

        See In re Estate of Price, 324 Ga. App. at 681.

       Yolanda suggests, in the alternative, that, even if the probate court had personal jurisdiction over M. P., it nevertheless erred by not dismissing Milton’s petition on the ground of forum non con ven iens because “the locale in which [M. R] has spent most of his life would be the jurisdiction where most of the evidence as to his present condition would be located,” i.e.. North Carolina. In relevant part, OCGA § 9-10-31.1 (a) provides:
      If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state or in a different county of proper venue within this state, the court shall decline to adjudicate the matter under the doctrine of forum non conveniens.
      (Emphasis supplied.) Here, Yolanda never moved the probate court, in writing or otherwise, to dismiss Milton’s petition on the ground of forum non con ven iens. Instead, at the hearing, she proposed that any ruling on Milton’s guardianship petition be “held in abeyance to see what other things might happen.” And when the court asked Yolanda if she had any authority to support this request, she answered that she had no authority, other than her testimony that she planned to file a guardianship petition in North Carolina. Additionally, it is unclear why witnesses from North Carolina would need to testify regarding M. P.’s “present condition” when all parties stipulated that he was in need of a guardian, and the only issue before the court was whether to grant guardianship to Milton, the petitioner. Finally, it is worth noting that, although Yolanda has repeatedly suggested before the probate court and on appeal that she would be a better guardian for M. P than Milton, she never filed a petition for guardianship, and she has never claimed that Milton is unfit to be M. P’s guardian.

        Lima Delta Co. v. Glob. Aerospace, Inc., 325 Ga. App. 76, 76 (752 SE2d 135) (2013) (citation and punctuation omitted); see also Beasley v. Beasley, 260 Ga. 419, 420 (396 SE2d 222) (1990) (“Our precedents establish that a defendant who files a motion to dismiss for lack of personal jurisdiction has the burden of proving lack of jurisdiction.”); Easterling v. Easterling, 231 Ga. 90, 91 (200 SE2d 267) (1973) (same); Smith v. Smith, 223 Ga. 551, 551 (1) (156 SE2d 916) (1967) (same).

       OCGA § 29-4-10 (a). We note that, here, there has been no allegation that M. R was “removed” to Chatham County, Georgia, solely for Milton to file a guardianship petition.

        Midkiff v. Midkiff, 275 Ga. 136, 137 (1) (562 SE2d 177) (2002) (punctuation omitted; emphasis in original); accord Conrad v. Conrad, 278 Ga. 107, 108 (597 SE2d 369) (2004).

        Kean v. Marshall, 294 Ga. App. 459, 461 (1) (669 SE2d 463) (2008); accord In re Hodgman, 269 Ga. App. 34, 35-36 (1) (602 SE2d 925) (2004).

        Sorrells v. Sorrells, 247 Ga. 9, 12 (3) (274 SE2d 314) (1981) (emphasis supplied); accord In re Hodgman, 269 Ga. App. at 36 (1).

        Campbell v. Campbell, 231 Ga. 214, 215 (1) (200 SE2d 899) (1973) (citations and punctuation omitted); accord Dozier v. Baker, 283 Ga. 543, 544 (2) (661 SE2d 543) (2008).

        See supra note 8 & accompanying text; see also Black v. Black, 292 Ga. 691, 692 (1) (740 SE2d 613) (2013) (explaining that “to show . . . domicile, the petitioner must prove that he maintained actual residence in Georgia during the relevant time and that he had an intent at that time to remain in Georgia indefinitely” and noting that appellate courts must accept a lower court’s factual findings regarding domicile if there is any evidence in the record to support them); Padron v. Padron, 281 Ga. 646, 646 (641 SE2d 542) (2007) (“Domicile is established by actual residence with the intent to remain there for an indefinite time.”).

        See OCGA § 29-4-1 (a).

       Emphasis supplied.

       We reiterate that we must defer to a lower court’s factual findings regarding domicile, which is a mixed question of law and fact, except in plain and palpable cases. See Cook v. Bd. of Registrars of Randolph Cty., 320 Ga.App. 447, 449 (740 SE2d 223) (2013). And in light of the evidence detailed supra, this is not such a case.

        See, e.g., In re Hodgman, 269 Ga. App. at 35-36 (1) (holding that, due to “debilitating injuries” that the ward sustained in a car accident, she was “mentally incapacitated,” and therefore, she lacked the capacity to change herlegal residence); Wilson v. Willard, 183 Ga.App. 204, 206 (3) (358 SE2d 859) (1987) (holding that a ward lacked the capacity to change his domicile after a stroke rendered him “mentally incapacitated”); Stanfield v. Hursey, 36 Ga.App. 394, 395 (3) (136 SE 826) (1927) (holding that, after a resident of Georgia was “adjudged insane,” he was incapable of changing his domicile). As noted supra, Yolanda, through her counsel, conceded that M. R was not mentally incompetent “in terms of what we usually think of as an incompetent person.”

       247 Ga. 9 (274 SE2d 314) (1981).

        See id, at 12 (3).

        See id. at 9-10.

        See id. at 12 (3).

       Because we affirm the probate court’s finding that M. P. is domiciled in Chatham County, we need not address Yolanda’s argument that M. P. was not “found in” Georgia within the meaning of OCGA § 29-4-10 (a), which provides that a guardianship petition must be filed in the county in which “the proposed ward is domiciled or is found . . . .” (Emphasis supplied.)

        See OCGA § 29-4-12 (d) (4) (“The court shall utilize the criteria in Code Section 29-4-1 to determine whether there is clear and convincing evidence of the need for a guardianship in light of the evidence taken at the hearing.” (emphasis supplied)); see also OCGA § 29-4-1 (a) (“The court may appoint a guardian for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety.”).

        See OCGA § 29-4-1 (c) (“No guardian shall be appointed for an adult unless the appointment is in the best interest of the adult.”); Cruver v. Mitchell, 289 Ga.App. 145, 148 (2) (656 SE2d 269) (2008) (“Under Georgia law, ... a guardian may be appointed for an adult if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety. The inquiry focuses on the condition and best interest of the adult, not on whether the adult’s family to date has been able to act successfully on her behalf without a guardianship.” (citation and punctuation omitted)).

       We note that, at some point during the hearing, the probate court reminded the parties that the issue of whether Yolanda was an appropriate guardian for M. R was not before the court. Instead, the court explained, the issue before the court was whether Milton was an appropriate person to be M. P.’s guardian. In response, Yolanda’s counsel indicated that he agreed with the court’s statements. On appeal, Yolanda argues that, although she did not file a petition for guardianship, the pleadings were amended to raise this issue when it was litigated, without objection, at the hearing. See OCGA § 9-11-15 (b) (“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”). But here, the parties did not litigate whether Yolanda should be appointed as M. P.’s guardian. Indeed, she agreed that she was not seeking guardianship of M. P in Georgia, as she intended to do so in North Carolina. And although Yolanda’s testimony insinuated that M. R should live with her in North Carolina, she ultimately argued that the probate court should deny Milton’s guardianship petition so that she could seek guardianship in North Carolina, or at the very least, hold its ruling in abeyance for 90 days until she was able to do so.

        See Glaze v. Lemaster, 279 Ga. 361, 362 (2) (613 SE2d 617) (2005) (“[When], as here, the findings of the probate court are supported by any evidence, they will not be disturbed on appeal.” (citation and punctuation omitted)); Cruver, 289 Ga. App. at 147 (1) (b) (“We will not set aside the probate court’s findings unless they are clearly erroneous. And [when] such findings are supported by any evidence, they will be upheld on appeal.” (citations omitted)).


author: MERCIER, Judge.

text:
    A16A1031.
    EDOKPOLOR et al. v. GRADY MEMORIAL HOSPITAL CORPORATION et al.
    (791 SE2d 589)
   MERCIER, Judge.

Patrick Edokpolor and Linda Patrick (collectively, “Edokpolor”) appeal the grant of summary judgment to Grady Memorial Hospital Corporation, Shirley Singh, and Jane Doe (collectively, “Grady”) in Edokpolor’s wrongful death suit against them in the State Court of Fulton County. Grady has moved this Court to dismiss the appeal, arguing that Edokpolor’s notice of appeal was untimely, and that Edokpolor failed to file a brief within 20 days of the docketing of this case. The motion to dismiss is moot with regard to the late filing of Edokpolor’s brief, as this Court granted an extension of the filing date. However, as a threshold matter, we examine the issue of whether Edokpolor’s appeal was timely. For the reasons that follow, we grant Grady’s motion to dismiss.

Edokpolor filed suit against Grady on July 15, 2010. On May 28, 2013, the trial court granted Edokpolor’s motion for an award of expenses incurred in serving Grady Memorial Hospital Corporation, pursuant to OCGA § 9-11-4 (d) (4), and stated that it reserved the issue of the amount of the award of expenses to be determined at a later hearing on Grady’s motion to dismiss or for summary judgment. On September 12, 2013, the trial court denied Grady’s motion to dismiss or for summary judgment. On October 17, 2013, Grady filed a renewed motion for summary judgment, which the trial court granted on October 7, 2014, on the grounds that “the causation testimony of record is insufficient to create a triable issue of fact.” The order appears to refer to the defendants collectively as “Defendant” and states that judgment is entered in favor of “Defendant”; it appears that Singh died before she was served with the complaint. Edokpolor does not contend that the grant of summary judgment applied to fewer than all of the defendants.

On November 6, 2014, the trial court denied Edokpolor’s “Emergency Motion for Reconsideration of Order Granting Summary Judgment, and for Suspension of Said Order Pending Reconsideration.” The motion is not included in the record transmitted to this Court. On January 22, 2015, Edokpolor filed in the trial court a motion to revise the order granting summary judgment, arguing, among other things, that the case was still pending because of the unresolved OCGA § 9-11-4 cost award, and the trial court therefore could address the substance of the motion for reconsideration, and referred to the earlier motion as “(perhaps erroneously) styled as an emergency motion for reconsideration,” arguing that the case was still pending because of the unresolved cost issue, and the court had “the power to address the substance of the motion for reconsideration.” In an order entered September 14, 2015, the trial court determined the amount of the award of costs under OCGA § 9-11-4. In the same order, it also determined that its earlier order granting summary judgment on October 7, 2014 was a final judgment, and denied Edokpolor’s motion to revise the summary judgment order. Edokpolor filed a notice of appeal on October 14, 2015, stating that he appeals “from the summary judgment dated 10/7/2014, made a final order on 9/14/2015.”

On appeal, Edokpolor argues to this Court that the trial court erred in determining that the October 17, 2014 order granting summary judgment was a final judgment. In three other enumerations of error, Edokpolor challenges the trial court’s grant of summary judgment to Grady Grady asserts that the notice of appeal, filed over a year after the order was entered granting summary judgment to Grady, was not timely; Edokpolor argues that the case remained pending until the September 14, 2015 order was entered, and thus the notice of appeal filed within 30 days of that order was timely.

“A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of.” OCGA § 5-6-38 (a). “The time requirement of OCGA § 5-6-38 (a) is jurisdictional, and because of [the appellant’s] failure to file a timely notice of appeal, [the] appeal must be dismissed for lack of jurisdiction.” Underwood v. Lanier Home Center, 239 Ga. App. 282 (521 SE2d 207) (1999); Brown v. Webb, 224 Ga. App. 856, 857 (482 SE2d 382) (1997); OCGA § 5-6-48 (b).

An order “constitutes a final judgment within the meaning of OCGA § 5-6-34 (a) (1) where it leaves no issues remaining to be resolved, constitutes the court’s final ruling on the merits of the action, and leaves the parties with no further recourse in the trial court.” Forrister v. Manis Lumber Co., 232 Ga. App. 370, 371 (1) (501 SE2d 606) (1998) (citation and punctuation omitted). A motion for reconsideration does not extend the time for filing a notice of appeal. Underwood, supra; see American Flat Glass Distributors v. Michael, 260 Ga. 312 (392 SE2d 855) (1990); OCGA § 5-6-38.

However,

[sjummary judgment orders which do not dispose of the entire case are considered interlocutory and remain within the breast of the court until final judgment is entered. They are subject to revision at any time before final judgment unless the court issues an order “upon express direction” under OCGA § 9-11-54 (b).

Bourff v. Green Tree Servicing, 321 Ga. App. 320, 323 (3) (741 SE2d 175) (2013) (physical precedent only); Hodges Plumbing & Elec. Co. v. ITT Grinnell Co., 179 Ga. App. 521, 522 (1) (347 SE2d 257) (1986). In determining whether we have jurisdiction over this case, therefore, we are presented with the issue of whether the entry of summary judgment on October 7, 2014 constituted a final order in this case within the meaning of OCGA § 5-6-34 (a) (1), requiring an appeal to be filed within 30 days, while Edokpolor’s motion for costs and fees pursuant to OCGA § 9-11-4 remained pending (as to the amount).

The issue of the finality of a judgment has been considered in connection with pending cost and fee awards pursuant to other statutes. Edokpolor points us to the decision of the Supreme Court of Georgia in Sotter v. Stephens, 291 Ga. 79 (727 SE2d 484) (2012). In Sotter, a case pertaining to the administration of an estate, the Supreme Court of Georgia examined the timeliness of an appeal by certain parties from certain orders entered in the case, and found that “if the judgment reserves the issue of attorney fees under OCGA § 13-6-11, then one cannot claim that ‘the case is no longer pending in the court below’ as required by OCGA § 5-6-34 (a) (1).” Sotter, supra at 83-84. However, the analysis in Sotter is counter to Edokpolor’s position, because the Supreme Court noted therein that, “while an attorney fees award pursuant to OCGA § 9-15-14 may be considered ancillary and post-judgment, an award of attorney fees under OCGA § 13-6-11 ... is considered part of the underlying case.” Id. Pointing out that the attorney fees awarded to the plaintiff were specially pleaded for in her complaint, the Court also explained that awards of attorney fees pursuant to OCGA § 13-6-11 “apply to conduct ‘arising’ from the transaction underlying the cause of action in litigation,” whereas “OCGA § 9-15-14 ... has been interpreted to govern conduct occurring during the litigation.” Sotter, supra at 83 (citation and punctuation omitted). Additionally, the Supreme Court noted that the appealed-from orders in question in Sotter were not final, because issues remained to be resolved as to some parties with regard to the underlying claims. Sotter, supra at 82.

Decided September 27, 2016

Joseph H. King, Jr., for appellants.

James C. West III, Gailya L. McElroy, for appellees.

The award of costs pursuant to OCGA § 9-11-4 (d) (4) arises from a party’s conduct during litigation, specifically, noncompliance with a request to waive personal service, rather than from the transaction underlying the cause of action in the case. Therefore, here, where the trial court had entered its summary judgment order concluding the case as to all parties and issues, the fact that the ancillary issue of the cost award under OCGA § 9-11-4 (d) remained pending did not prevent the judgment from being final for purposes of OCGA § 5-6-34 (a) (1) and OCGA § 5-6-38 (a).

The October 17, 2014 judgment order was a final judgment. Inasmuch as this appeal was brought outside of the 30-day time frame from the trial court’s entry of judgment and thus was untimely, we grant Grady’s motion to dismiss.

Appeal dismissed.

Ellington, P. J., and Branch, J., concur.


author: Boggs, Judge.

text:
    A14A1682.
    KELLEY v. THE STATE.
    (791 SE2d 625)
    Decided September 28, 2016.

      Franklin & Hubbard, Curtis L. Hubbard, Jr.; Barbee Law Firm, Todd E. Barbee, for appellant.

      Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.
   Boggs, Judge.

In State v. Kelley, 298 Ga. 527 (783 SE2d 124) (2016), the Supreme Court of Georgia reversed our opinion in Kelley v. State, 331 Ga. App. 758 (771 SE2d 441) (2015). We therefore vacate our prior opinion and adopt the opinion of the Supreme Court of Georgia as our own.

Judgment affirmed.

Barnes, P. J., and Branch, J., concur.