author: PHIPPS, Presiding Judge.

text:
    A12A0861.
    McCABE v. THE STATE.
    (734 SE2d 539)
   PHIPPS, Presiding Judge.

Based on remarks defense counsel made during closing argument in Marissa McCabe’s trial for driving under the influence of alcohol, the trial court granted the state’s motion for a mistrial. McCabe filed a plea in bar on double jeopardy grounds seeking dismissal of the accusation. McCabe appeals from the denial of her plea in bar. We affirm.

The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, states that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” Brown v. Ohio, [cit.]. See 1983 Ga. Const., Art. I, Sec. I, Par. XVIII (“No person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of mistrial.”).
As a rule, if the trial court declares a mistrial over the defendant’s objection or without [her] consent, the defendant may be retried, but only if there was a “manifest necessity” for the mistrial. Manifest necessity can exist for reasons deemed compelling by the trial court, especially where the ends of substantial justice cannot be attained without discontinuing the trial. Manifest necessity exists when the accused’s right to have the trial completed by a particular tribunal is subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury. The trial court’s judgment that there was a manifest necessity to grant a mistrial is entitled to great deference.

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

The record reveals that on November 26, 2005, a state trooper initiated a traffic stop of McCabe’s vehicle and, based upon his observations and McCabe’s performance onfield sobriety tests, placed McCabe under arrest for driving under the influence of alcohol. The state trooper transported McCabe to a pre-trial detention center, where he administered a test of McCabe’s breath on an Intoxilyzer 5000 machine. McCabe was subsequently charged by accusation with DUI-less safe and DUI per se.

At the trial, the state called as a witness the state trooper who had conducted the traffic stop and administered the breath test. Through the state trooper’s testimony, the state introduced a copy of the certificate of inspection for the machine used to test McCabe’s breath on November 26, 2005 (State’s Exhibit No. 4). The certificate indicated that the machine was thoroughly inspected and tested on November 15, 2005, and that “all of its electronic and operating components prescribed by its manufacturer are properly attached and are in good working order.” When asked what he remembered about the machine the night of McCabe’s test, the state trooper testified that the machine appeared to be working properly; he added that any time the machine is turned on, it runs a self-diagnostic check and, if the machine is running properly, it notifies the tester to proceed with the breath test. He later clarified that the machine was working properly “for [him] and this defendant” on November 26, 2005, and that when he performed the diagnostic check, “it checked out okay and it allowed” him to test McCabe’s breath.

After the state rested, McCabe called as a witness a records manager at the pretrial detention center. Through the records manager’s testimony, defense counsel introduced (as Defendant’s Exhibit No. 1), a copy of a certificate of inspection identical to the one introduced by the state (State’s Exhibit No. 4); the defendant’s exhibit, however, also included attachments of other subjects’ test results. The exhibit was admitted.

In addition, the records manager presented a certificate of inspection for the same Intoxilyzer 5000 machine, dated February 27, 2007 (Defendant’s Exhibit No. 2), the relevance of which the state questioned; two Georgia Bureau of Investigation (GBI) log sheets for the same machine (Defendant’s Exhibit Nos. 3 and 4); and an invoice dated January 11, 2007 (Defendant’s Exhibit No. 5). The court admitted Defendant’s Exhibit Nos. 2 through 4 (subject to later possible redaction).

Reading aloud from Defendant’s Exhibit No. 3 (a GBI log sheet for the machine), the records manager testified that on January 24, 2006, a notation was made thereon stating “intox taken out of service will not pass diagnostic test... bad motor, to be sent to factory.” The witness testified that the exhibit also had a date of December 9,2005, and the notation “VOID.” Reviewing Defendant’s Exhibit No. 2, the witness testified that an entry on February 27, 2007 stated “intox returned from factory, quarterly checks completed, all okay, put back into service.” The records manager could not find and did not produce inspection certificates for the first through fourth quarters of 2006.

After both sides rested, outside of the presence of the jury, the state moved for a mistrial, asserting that Defendant’s Exhibit Nos. 2 through 5 should not have been admitted because those documents were not relevant to the operating condition of the machine on November 26, 2005, when McCabe was tested, and that the jury’s perspective had been tainted with evidence suggesting that there were problems with the machine when she was tested. At this point the court denied the state’s motion for a mistrial; it ruled that the defendant’s exhibits relating to the certificates of inspection were admissible, but that Defendant’s Exhibit Nos. 3 and 4, the log sheets involving tests subsequent to McCabe’s test, were not admissible.

When the jurors returned, the court instructed them as follows: McCabe’s test was administered November 26, 2005; the records manager had identified two documents — Defendant’s Exhibit Nos. 3 and 4, which were log sheets; the log sheets showed dates starting in December, after McCabe’s test; those documents, those logs, and any testimony about subsequent performance of the machine was irrelevant and was to be disregarded.

Thereafter, counsel proceeded with closing arguments. Defense counsel argued: “On November 26 2005, . . . [McCabe] trusted that machine. . . . She did not know everything that she knows now that the machine had a serious history of problems.” The state objected, and the court excused the jurors.

Outside the presence of the jury, defense counsel explained that although she had not been allowed to “bring in” the log sheets, she believed she was permitted to discuss the fact that there were gaps in the inspection certificates. Arguing that the machine’s subsequent history was inadmissible, the state renewed its motion for mistrial. The court instructed defense counsel that she was permitted to argue that the machine was taken out for repair after the date of McCabe’s test, but not permitted to argue about subsequent test results. The jury returned.

In continuing her closing argument, defense counsel told the jury, “there’s a lot of reasons . . . why you should distrust that test.” She asserted that after McCabe was tested, the machine was taken out of service for over a year beginning the first quarter of 2006, and that

I thought it was important that the jury understands that this machine had problems... . Now the prosecution would like for you to say just look at this one. Just look at November 15th. That’s good enough. You need to know nothing else. They fought. They don’t want you to hear this. They don’t want you to know, but I want you to know and it’s your right to know. This means nothing on its own. But the argument is, hey, it worked great on November 26th.

The state objected, and the trial judge again excused the jury.

Outside the presence of the jury, the trial judge explained:

The reason we send the jury out when we have these discussions is because it’s not any business of the jury to know that one side fought for or against something. And the fact that you just argued that they fought to keep things out, I might as well have just kept the jury in here when we had all these discussions. . . .

The state renewed its motion for mistrial, and defense counsel offered an explanation as to why she believed her argument was not improper.

The trial judge admonished defense counsel for commenting to the jury that the state had fought to keep evidence out, stating that such a comment was “too prejudicial for us to go forward.” The judge announced:

At this point, I’m just thinking I’m going to have to grant a mistrial. I hate to do this. .. . Frankly, I’ve tried to sort of cure some of the issues here . . . but it was not for them to know that the state, quote [unquote], “fought to keep something out.” There was a reason I gave it and I sent them out during that discussion[,]... but it is insinuating that they’re hiding something. And it makes it seem like the documents that I have now excluded that there [was] something hidden in those. And I don’t know that that’s something that can be cured because I ruled those inadmissible and irrelevant. And I know it’s a fine line between the machine being in and out of service and I know there’s case law that says . . . you can get into the fact that it’s been out of service ... and I let you talk about that. But because these other documents were originally discussed yesterday and now I have ruled them inadmissible, it makes it seem like the state is hiding . . . something that’s relevant to the test result of November 26th.

The trial court thereafter granted the state’s motion for mistrial.

In its order denying McCabe’s plea in bar, the trial court discussed in great detail: the factual and legal bases for the state’s motion for mistrial based on defense counsel’s closing argument; the court’s rulings that certain exhibits were not admissible and were not to be referenced; the court’s curative instructions to the jury after defense counsel made such references; defense counsel’s having held up during closing what appeared (to both the judge and the prosecutor) to be the excluded documents; and defense counsel’s comments to the jury suggesting that the state had attempted to conceal from the jury relevant evidence. The court found that defense counsel’s comments were “immensely prejudicial” and that there was no curative instruction the court could envision that would have rectified the harm, that the ends of substantial justice necessitated a mistrial, and that a manifest necessity existed for declaring a mistrial.

Further, the court stated, “Having dismissed the jury three times immediately before and during closing argument, to discuss the admissibility of this precise matter, the Court can’t help but wonder if this was a desperate measure by defendant and her Counsel to obtain a new trial.”

Decided November 21, 2012

Rebecca T. Kozycki, for appellant.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.

Notably, the trial court “is especially empowered to avoid the absurdity of a defendant benefitting from the prejudicial error [she] created.” Giving the trial court’s judgment the deference to which it is entitled, after reviewing the court’s rulings as a whole, we hold that the court’s findings support its conclusion that there was a manifest necessity for declaring the mistrial. The trial court did not err in denying McCabe’s plea in bar.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

        Williams v. State, 288 Ga. 7, 8 (2) (700 SE2d 564) (2010).

        Bruce v. State, 302 Ga. App. 810 (692 SE2d 13) (2010) (punctuation and footnotes omitted).

        Wilson u. State, 229 Ga. App. 455 (494 SE2d 267) (1997) (citation and punctuation omitted).

        See Knapp v. State, 229 Ga.App. 175, 176-177 (2) (493 SE2d 583) (1997) (a defendant may show the possibility of error in the Intoxilyzer 5000 test due to machine malfunction by showing that the machine was not in good working order and thus not operating properly when he was tested; however, trial court did not abuse its discretion in not permitting defendant to introduce evidence that the machine was repaired months after he was tested, as the proffered evidence was of remote relevance, if any, to the operating condition of the machine on the date of his test).

       See Bruce, supra at 811 (punctuation, footnote and emphasis omitted).

       Id.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A12A1076.
    In the Interest of D. W., a child.
    (734 SE2d 543)
   BARNES, Presiding Judge.

The mother of D. W. appeals from the order of the trial court finding her child deprived. She contends that the evidence was insufficient to show that D. W. was deprived while in her care. Upon our review, we reverse the juvenile court’s finding of deprivation.

In considering an appeal from the juvenile court’s deprivation order, “we review the evidence from the juvenile court hearings in the light most favorable to the court’s judgment and determine whether any rational trier of fact could have found by clear and convincing evidence that the children were deprived.” In the Interest of J. P., 253 Ga. App. 732 (560 SE2d 318) (2002).

D. W.’s maternal grandmother filed a deprivation complaint in the Juvenile Court of Fulton County alleging that then ten-month-old D. W. was “without proper parental care and supervision” because the mother was “minorly retarded,” had ADHD, did not take her medication, and could not care for D. W. The grandmother also alleged that the mother had spanked the child when the child was only five months old, although the Department of Family and Children Sérvices (“DFACS”) had apparently investigated and later closed the case. The juvenile court entered an order finding probable cause of deprivation, granted DFACS temporary legal custody, and placed the child with the grandmother. Thereafter, DFACS filed a deprivation petition alleging that D. W. was deprived because of the allegations in the complaint including the mother’s untreated “mental health challenges,” and that she was unable to provide support, an appropriate home, or care for the child.

At the hearing on the deprivation petition, a caseworker testified that he did not know where D. W. was living at the time she was removed from the mother’s custody, and that, although DFACS had been informed that the mother was homeless, he found out the day of the trial that the mother had a place to stay. The caseworker also testified that while there were allegations in the private complaint “that [the mother] was unable to take care of the child [and] . . . allegations made that she’s not mentally capable to take care of [D. W.],” he had no evidence that the allegations were true and was testifying based on the information in the probable cause order. He further testified that he spoke with the grandmother and the mother’s sister in his investigation; the grandmother was concerned that the mother had mental health issues that were not medicated, and the sister recounted an “instance where [the mother] was spanking the child.” The caseworker acknowledged that DFACS did not have a current mental health evaluation for the mother.

The grandmother testified that the mother lived with her for approximately two months before D. W. was born and for another two months after the child was born. The mother moved out and got her own apartment, but the grandmother testified that she helped the mother financially with her rent. She testified that after a couple of months, the mother left the apartment and moved in with another family, then moved back in with the grandmother. The mother and D. W. were residing with the grandmother at the time the complaint was filed. The grandmother testified that she was concerned about the way the mother cared for D. W. because some days when she came home from work, the baby would still be in its pajamas, her diaper would be dirty, and the baby would be hungry. She also testified that for six months she furnished the child’s baby food, milk, and diapers, and that D. W. was “ten months old before she had her first real bed,” which the grandmother said she bought. She also testified that the mother would hang out late at night and sometimes have D. W. out late “in the street.”

The grandmother testified that the mother had been diagnosed as “mildly mentally retarded,” dyslexic, and “[s]he’s ADHD and . . . something called OCD or ODC, or something of that nature, as well as learning disabilities.” The grandmother testified that the mother did not exercise patience with D. W., that on one occasion the mother “snatched” the child by one arm from the grandmother’s arms, and that she had called the police because D. W. was sitting in her walker “screaming” and “hollering” and the mother told the grandmother to “shut [her] mouth up and get out of there.”

Over her own objection, the mother was called to testify at the hearing. She testified that she was employed making t-shirts and received social security benefits, and presently lived with a female friend. The mother testified that she did not know how much money she earned or received from Social Security. She testified that she had taken the baby out with her late at night to go over to a “friend’s house.” She denied staying out until the early morning hours with D. W. The mother agreed that she suffered from an anger issue. She also admitted that she had “yanked [D. W.] from her [mother] by one arm,” but she denied that police were called after the issue. The mother also denied ever spanking D. W. The mother testified that she had housing for the child and could provide for her.

The court found the child deprived and continued temporary custody in DFACS. The court based the deprivation finding upon the determination that the mother was unable to provide adequate care, control or supervision of D. W., and that she “may have mental health challenges, which when untreated, impair her ability to provide appropriate care for the child.” The mother appeals, contending, among other things, that there was no clear and convincing evidence of D. W.’s deprivation while in her care.

1. Regarding the mother’s contention that the trial court erred in denying her motion to dismiss because the petition failed to allege present deprivation, the juvenile court has exclusive original jurisdiction over a child alleged to be deprived. OCGA § 15-11-28 (a) (1) (C). The mother does not contest the juvenile court’s jurisdiction in this case, but instead she maintains that the allegations of deprivation in the petition were not valid. We do not agree.

Here, the petition clearly makes allegations of deprivation as defined byOCGA § 15-11-2(8). Pursuant to that statute a “‘[d]eprived child’ means a child who . . . [i]s without proper parental care or control.” Id. Because deprivation actions are civil cases under Georgia law, see In the Interest of A. M. R., 230 Ga.App. 133, 136 (2) (495 SE2d 615) (1998), “the Georgia Civil Practice Act requires only notice pleading [which should be] construed liberally and reasonably[.]” Rucker v. Columbia Nat. Ins. Co., 307 Ga.App. 444, 446 (1) (a) (705 SE2d 270) (2010). Thus, DFACS was only required to put forth plainly-stated allegations in the petition which, taken as true, would support a finding of deprivation. See Davis v. Metzger, 119 Ga.App. 750, 751 (2) (168 SE2d 866) (1969) (Pleadings serve to give notice to the opposing party of the general nature of the contentions, and thus “general allegations are sufficient to support a plaintiff’s claim for relief.”).

Accordingly, this enumeration fails.

2. The mother also contends that the trial court erred by taking judicial notice of her DFACS records from when she was a minor in DFACS custody.

Judicial notice is intended to eliminate the need for formal proof as to: (1) matters which the general public has common knowledge of; (2) facts which are readily ascertainable by reference to some reliable source, and are beyond dispute; and (3) matters which are in the special province of the judge. Moreover, a court may take judicial cognizance of records on file in its own court.

(Citation and punctuation omitted.) In the Interest of S. D., 316 Ga.App. 86, 88 (1) (728 SE2d 749) (2012).

At the deprivation hearing, the trial court stated that it would “take judicial notice of [the mother’s] file number ... in which [the mother] was a minor child in DFACS custody,... her mental history records and information, and the findings of facts. All this was made known at the probable cause hearing.” A transcript of the probable cause hearing was not included in the record. The findings of facts detailed in the probable cause order were:

The mother is mildly mentally [challenged] and is not capable of parenting child. Mother cannot feed or care for child properly or without assistance. Mother would only give child milk when she needed baby food. Mother would not care for child properly and child was not kept clean and constantly had diaper rash. Mother has anger problems and does not talk to or handle child appropriately. Mother was under care of psychologist and psychiatrist but stop[ped] going in 2006.

There is no reference to the mother’s DFACS case nor exhibits included in the record. The order reflects that only the mother, the aunt, the grandmother, the mother’s attorney, D. W., and a child advocate were present at the probable cause hearing. Thus, as in In the Interest of S. D.,

[e]ven if we assume that the juvenile court could properly take judicial notice of the [mother’s DFACS records] for purposes of [D. W.’s] case, . . . these documents [were not] tendered into evidence,... and there was no testimony as to the contents of these documents. We must therefore conclude that the juvenile court could not consider the evaluation or report to determine whether [D. W] was without proper parental care or control, or that the mother is unfit to parent [D. W.].

Id. at 89 (1).

3. Under OCGA § 15-11-2 (8) (A), a child is deprived if he or she “[i]s 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.”

The definition of a deprived child, as contained in OCGA § 15-11-2 (8), focuses upon the needs of the child regardless of parental fault. The 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.

(Punctuation, footnote and emphasis omitted.) In the Interest of J. P., 267 Ga. 492 (480 SE2d 8) (1997).

To authorize even a loss of temporary custody by a child’s parents, on the basis of deprivation, the deprivation must be shown to have resulted from 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.

(Punctuation omitted.) In the Interest of S. S., 232 Ga.App. 287, 289 (501 SE2d 618) (1998). An order temporarily transferring custody of a child based on alleged deprivation must be “grounded upon a finding that the child is at the present time a deprived child,” (emphasis supplied) In re J. C. P., 167 Ga.App. 572, 576 (307 SE2d 1) (1983), and “[a] finding of parental unfitness is essential to support an adjudication of present deprivation.” (Emphasis omitted.) Id. at 575.

Applying the appropriate standard of review, we do not find clear and convincing evidence sufficient to enable a rational trier of fact to conclude that D. W. is presently deprived. According to the juvenile court’s order, the child was deprived because of the mother’s mental impairment and inability to care for the child. There was, however, absolutely no reliable or competent evidence of the mother’s present mental impairment. The DFACS caseworker testified at the hearing that he had no evidence of the mother’s impairment or the mother’s inability to care for D. W., but that his knowledge was based upon the probable cause order and interviews with the grandmother and aunt. There is no psychological evaluation included in the record, or reports from treating physicians, or medical reports indicating any mental impairment or how said mental impairment might limit the mother’s parental abilities. The only other evidence in this regard was from the grandmother about the mother having ADHD, learning disabilities, and being “mildly retarded.”

Pursuant to OCGA § 15-11-94 (b) (4) (B) (i), evidence of a deficiency in the parent’s physical, mental, or emotional health must be “medically verifiable” and “of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child.” See In the Interest of A. G. I., 246 Ga.App. 85, 87-88 (2) (a) (539 SE2d 584) (2000). No such showing was made here. The record before us does not establish by clear and convincing evidence that the mother lacked proper parenting skills or that the child was not being properly cared for. See In the Interest of S. J., 270 Ga.App. 598, 609 (1) (c) (607 SE2d 225) (2004) (finding of deprivation reversed where, among other things, juvenile court’s finding that mother exhibited a medically verifiable deficiency so as to render her unable to provide for her child was not supported by the evidence). “Other than the mother’s admission of her [anger issues], the only other evidence in this regard was hearsay and conjecture from laypersons.” In the Interest of K. S., 271 Ga.App. 891, 893 (611 SE2d 150) (2005).

As this court has noted previously, “[t]he right to the custody and control of one’s child is a fiercely guarded right in our society and in our law. It is a right that should be infringed upon only under the most compelling circumstances.” In re S. E. H., 180 Ga.App. 849, 851 (350 SE2d 833) (1986). That standard has not been met in this circumstance. In order to justify even a temporary transfer of custody, the deprivation must be based upon the unfitness of the parent. Here, there was no competent evidence presented that the mother was unfit to care for her child, and that D. W. was a deprived child at the time of the deprivation hearing.

Accordingly, the juvenile court erred in finding D. W. deprived.

4. We find no error in the juvenile court’s decision to include the grandmother as a party to the proceeding. Pursuant to OCGA § 15-11-39 (b), during a deprivation proceeding the juvenile court has discretion to determine “proper or necessary parties to the proceeding [and require] them to appear before the court at the time fixed to answer the allegations of the petition.” Moreover, “a party is entitled to counsel in the proceedings.” OCGA § 15-11-39 (d).

Decided November 21, 2012.

Jessica D. Huff, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Penny Hannah, Assistant Attorney General, Robert E. Hall, Wenona C. Belton, for appellee.

Thus, we find no error regarding this contention.

Judgment reversed.

Adams and McFadden, JJ., concur.

       The grandmother adopted D. W.’s mother when the mother was in DFACS’ custody, so she is the mother’s legal mother and natural grandmother.

       The mother informed the trial court more than once during her testimony that she did not want to continue testifying and that she was “getting mad.”


author: McFadden, Judge.

text:
    A12A1363.
    PERLMAN v. PERLMAN.
    (734 SE2d 560)
   McFadden, Judge.

Scott Perlman (the father) appeals from two judgments: one dismissing the ex parte temporary family violence protective orders that he had obtained on behalf of his two minor daughters against their mother, Rachel Perlman (the mother); and the other dismissing his petition for change in the girls’ custody to him. As to the family violence orders, we find that the trial court was authorized to disbelieve the evidence elicited by the father and therefore to dismiss the ex parte family violence protective orders; and those ex parte orders have, in any event, long since expired as a matter of law. And we find that the trial court did not err in refusing to admit certain photographs into evidence at the hearing on the protective orders. As to the change-in-custody petition, we lack jurisdiction because the father did not file a timely appeal. Accordingly, we affirm the judgment on the protective orders and dismiss the appeal of the judgment on the change-in-custody petition.

1. Proceedings below.

The procedural posture of this case is unusual. The father and mother were divorced in August 2010 in the Paulding County Superior Court, where the marital residence had been located. The mother was awarded sole custody of the couple’s two minor daughters, J. P, then nine years old, and S. P, then five years old.

On September 28, 2010, the mother notified the father by e-mail of her intent to move to Texas with the girls. The father responded in an e-mail, “Don’t count on it!”

On October 4,2010, within days of learning of the mother’s plans to move out of state and less than two months after the conclusion of the divorce proceedings, the father petitioned in the Paulding County Superior Court for a change in custody. Later that month he filed petitions for family violence protective orders on behalf of both girls. Because the mother had moved to Cobb County, the family violence petitions were filed in the Cobb County Superior Court.

The father obtained ex parte temporary protective orders on October 14, and custody of both girls was transferred to him on an emergency basis. A hearing was set on the temporary protective orders in Cobb County on October 26, and a hearing was set on the father’s change-in-custody petition in Paulding County on October 27.

At the October 26 proceeding, the Cobb County Superior Court elected to defer to the Paulding County Superior Court. With the parties’ consent, the Cobb County Superior Court issued the following order in both of the temporary protective order cases:

The above styled action having come before the Court on the 26th day of October, 2010 and both parties having appeared and announced ready and the Court having determined that the parties are to appear before the Honorable Judge Beavers of Paulding County Superior Court on the 27th day of October, 2010, this Court defers to Paulding County Superior Court to hear and rule upon the issues in an economic use of time for both Courts.
Both parties shall appear and present their evidence before the Honorable Judge Beavers on the 27th day of October, 2010.

The Paulding County Superior Court held the hearing as scheduled on October 27, 2010. In an order filed that day in open court, the judge granted the mother’s motion to dismiss the change-in-custody petition for lack of personal jurisdiction. He then received evidence pertaining to whether to grant temporary family violence protective orders against the mother. During the course of the hearing, however, the father’s counsel became ill and the hearing was suspended before the father finished presenting his evidence and before the mother presented her evidence. The hearing was not reconvened. Instead, the father submitted to the court a brief, with supporting affidavits, arguing that the court should grant 12-month family violence protective orders. (The mother reports that she also submitted a post-hearing brief, but the record on appeal does not contain that brief.)

On November 15, 2010, the Paulding County Superior Court entered an order dismissing the ex parte temporary family violence protective orders (which had been entered in Cobb County), returning the girls to the mother’s custody, and allowing the mother to leave the state with the girls. This ruling effectively denied the father’s request for a 12-month protective order, although the trial court did not expressly rule on that issue in his order.

On December 14, 2010, the father filed an application for discretionary appeal from that November 15 order. We granted the application on the ground that the ruling on the protective orders was subject to direct appeal because it involved child custody.

On the father’s motion, we remanded the case to the Paulding County Superior Court for completion of the record. When the case subsequently was redocketed, the record included a representation from the Paulding County Superior Court that the trial court record had been “sent in its entirety.”

2. The evidence authorized the trial court’s ruling on the family violence protective orders and those ex parte orders have, in any event, long since expired as a matter of law.

The father contends that the Paulding County Superior Court erred in its ruling on the family violence protective orders.

The grant or denial of a motion for a protective order generally lies within the sound discretion of the trial court. We therefore will not reverse absent an abuse of discretion. The trial court is in the best position to make determinations on these issues, and we will not overrule its judgment if there is any reasonable evidence to support it.

(Citations and punctuation omitted.) Anderson v. Mergenhagen, 283 Ga.App. 546, 548 (1) (642 SE2d 105) (2007). As explained below, the evidence in this case authorized the trial court to enter its order effectively denying the family violence protective orders.

The process for obtaining a family violence protective order is set forth in the Family Violence Act, OCGA § 19-13-1 et seq. A superior court “may, upon the filing of a verified petition, grant any protective order ... to bring about a cessation of acts of family violence.” OCGA § 19-13-4 (a). The term “family violence” is pertinently defined as

the occurrence of one or more of the following acts between... parents and children ...: (1) Any felony; or (2) Commission of offenses of battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass. The term “family violence” shall not be deemed to include reasonable discipline administered by a parent to a child in the form of corporal punishment, restraint, or detention.

OCGA § 19-13-1.

A petitioner may seek a family violence protective order for himself or herself or, as occurred here, on behalf of a minor child. OCGA § 19-13-3 (a). In the petition, the petitioner must allege “specific facts that probable cause exists to establish that family violence hasoccurredinthepastandmayoccurinthefuture.”OCGA § 19-13-3 (b). Upon the filing of a petition, the court may order temporary ex parte relief. Id. Then, within 30 days after the filing of the petition, a hearing must be held at which the petitioner “must prove the allegations of the petition by a preponderance of the evidence.” OCGA § 19-13-3 (c). “If a hearing is not held within 30 days, the petition shall stand dismissed unless the parties otherwise agree.” Id.

In this case, a hearing occurred within 30 days but occurred in the Paulding County Superior Court — rather than the Cobb County Superior Court, which had venue over the petition. See OCGA § 19-13-2 (a) (superior court of county where respondent resides shall have jurisdiction over family violence protective order proceedings). Given that the parties agreed for the Paulding County Superior Court to conduct the hearing, we will assume arguendo that venue was proper in the Paulding County Superior Court pursuant to the Cobb County Superior Court’s October 26 order. We note that if the Paulding County Superior Court lacked venue over the family violence order proceedings, then the father’s petition would stand dismissed for failure to meet OCGA § 19-13-3 (c)’s requirement that a hearing be held within 30 days.

The record in this case does not contain the family violence petitions that the father filed in Cobb County Superior Court. Thus, it does not show the specific allegations of family violence made in those petitions. At the hearing'— which, as noted above, was suspended and not reconvened — the father attempted to demonstrate that the mother had yelled at and frightened the two girls, that she had hit S. P, causing bruises on the girl’s legs, and that she had hit and chased J. P. The evidence was as follows.

The girls spent a weekend visit with the father beginning on Friday, September 24, 2010. The father testified that he noticed multiple bruises, some apparently older than others, on S. P.’s legs that evening. He testified that S. P. told him that “Mommie had done it” and that “Mommie hit me.” The father did not take S. P. to a medical provider, but instead contacted the police and the Department of Family and Children Services. On Sunday, September 26, the father met with a Cobb County officer, told him “what was going on,” and showed him S. P.’s bruises. The officer testified that S. P. first told him that she got the bruises when she fell from her bicycle. But after prompting from the father, S. P. said “my Mommie grabbed me.” J. P. told the officer that the mother had hit her five times, that she had seen the mother grab and hit S. P. twice, and that she once had tried to intervene and the mother had told her to leave. The officer turned the case over to a crimes against children detective, but no criminal charges were brought. The father returned the girls to the mother at the end of the weekend.

Two days later, the mother notified the father of her intent to move to Texas with the girls. The father responded, “Don’t count on it!”

The next day, the father picked up the girls for a short evening visit. S. P, he testified, began crying and said the mother was hitting and beating her again. He testified that both girls said that they did not want to return to the mother and described the mother screaming, running around the apartment, and hitting them. The father called 911 and met with Paulding County law enforcement officers. A Paulding County officer testified that J. P. told him that she did not want to return to the mother because the mother “hits.” S. P. would not speak to the officer. The father announced that he was not going to return the girls to the mother. The officer contacted the mother and told her that he could not make the father return the girls to her at that time.

The father also testified that J. P. had told him several times that the mother was hitting S. P, that the mother had threatened to hit J. P. if she “didn’t mind her business,” and that on one occasion J. P. had run and hid from the mother because the mother was loud and frightening. He said that the girls cried a lot during visits with him, looked panicked, and would tell him that they were afraid and did not want to return to the mother. The father took the girls to a child psychologist on October 16, 2010; the psychologist testified that he spoke with them for 19 minutes, during which they stated that the mother was mean, that she yelled at and spanked them, and that they did not want to move to Texas.

The father admitted at the hearing that in 1994 he accused a former wife (not the mother in this case) of abusing their daughter and that that case was dismissed. He also admitted that he previously accused the mother in this case of abusing the girls and that those allegations were determined to be unfounded.

The father argues that the trial court was required to grant a family violence protective order based on this evidence, because the mother did not present evidence to refute the testimony that the bruises occurred when she hit S. P. or to demonstrate that her actions were part of reasonable discipline.

We are not persuaded. In the first place, the father’s argument ignores the fact that the mother was unable to present any evidence at the hearing due to the illness of the father’s counsel. (The record suggests, however, that the mother would have been able to present some refuting evidence at the hearing had she been given the opportunity.)

More fundamentally, whether or not it was rebutted, the trial court was under no obligation to believe the father’s evidence. As petitioner, he bore the burden of showing by a preponderance of the evidence that an act of family violence occurred. It was the father’s burden to show that any actions by the mother were not part of reasonable discipline.

Most of the father’s evidence consisted of reports of statements made by the girls, who did not testify. We note that the admissibility of that evidence is questionable. See Allen v. Clerk, 273 Ga.App. 896, 898 (1) (616 SE2d 213) (2005) (temporary protective order cannot rest on hearsay evidence). But we assume — without deciding — that the statements were competent evidence under the Child Hearsay Statute, OCGA § 24-3-16, or under some other exception to the hearsay rule.

The credibility of the evidence was for the trial court, as finder of fact. See White v. State, 287 Ga. 713, 716 (1) (b) (699 SE2d 291) (2010). Much of the evidence of what the girls said about the mother came from the testimony of the father, who had a history of making unfounded allegations of child abuse against former wives, including the mother in this case. Notably, the only person other than the father whose testimony expressly connected the bruises on S. P.’s legs to actions of the mother was one of the police officers, who testified that S. P. first told him that the bruises were caused by a fall from her bicycle and only blamed the mother after prompting from the father. The trial court could have accepted this testimony as evidence that the mother caused S. P.’s bruises, but it was not required to do so. See id.

In any event, the evidence presented by the father offered no context for the alleged incidences of the mother hitting, yelling, chasing and being “mean.” The trial court could have found from the evidence that the father had not shown by a preponderance of the evidence that the incidences fell outside the bounds of permissible, reasonable discipline. See Buchheit v. Stinson, 260 Ga. App. 450, 455-456 (579 SE2d 853) (2003) (physical precedent only). See also Maddox v. Boutwell, 176 Ga.App. 492, 493-494 (336 SE2d 599) (1985) (finding, as a matter of law, that school-administered corporal punishment of striking student four times with wooden paddle, which had been painful to student and had resulted in “severe bruises” to his buttocks and thigh, was neither excessive nor unduly severe; “it is to be anticipated that corporal punishment will produce pain and the potential for bruising”). Under these circumstances, we discern no abuse of discretion in the trial court’s denial of the petition for family violence protective orders. See Anderson, 283 Ga.App. at 548 (1).

3. The trial court did not err in excluding photographic evidence.

The father argues that the trial court erred in refusing to admit into evidence photographs showing S. P.’s bruises. We find no error. The trial court held that the father had not yet met the “foundational requirement” for the photographs’ admission, a determination that fell within that court’s discretion. See Whitaker v. State, 287 Ga.App. 465, 467 (2) (652 SE2d 568) (2007). And although the record shows that the court suggested it would reconsider the photographs’ admission, the father’s counsel made no further attempt to lay a foundation for them. The decision in Dick v. State, 246 Ga. 697, 704 (13) (273 SE2d 124) (1980), cited by the father, is inapposite; it concerned the failure of an appellant to perfect for appellate review an objection to a document that the trial court admitted into evidence.

4. This Court lacks jurisdiction over the father’s untimely appeal from the dismissal of his change-in-custody petition.

The father challenges the court’s dismissal of his petition for change in custody. As detailed below, we lack jurisdiction to review this decision because it was a final judgment issued in a separate case from that involving the family violence petitions and the father failed to file his application for discretionary review of the judgment within the time period required to confer appellate jurisdiction.

“This court has a duty to inquire into its jurisdiction to entertain the appeal and review the alleged errors of the trial court. Where it is apparent that jurisdiction to decide the case does not exist, the appeal must be dismissed.” (Citations omitted.) Forest City Gun Club v. Chatham County, 280 Ga.App. 219, 220 (633 SE2d 623) (2006).

We first consider whether, under OCGA § 5-6-34 (d), the father’s timely appeal from the family violence orders confers upon us jurisdiction over his appeal from the dismissal of the change-in-custody petition. OCGA § 5-6-34 (d) provides that, where a direct appeal is taken from a decision or judgment under OCGA § 5-6-34 (a), “all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court.” (Emphasis supplied.) Accordingly, the question before us is whether the order dismissing the change-in-custody petition was rendered in the same case as the family violence orders. See In the Interest of I. S., 278 Ga. 859, 860-861 (607 SE2d 546) (2005) (rule set forth in OCGA § 5-6-34 (d) does not apply where the earlier judgment, ruling or order was in a separate. and distinct proceeding).

We conclude that these orders were not rendered in the same case but rather were rendered in separate and distinct proceedings, for several reasons. The proceedings involved different parties — the petitioner in the change-in-custody proceeding was the father, while the petitioners in the family violence proceedings were the girls (through their father). The petitions in the proceedings sought different forms of relief — the change-in-custody petition sought an order giving the father permanent custody of the girls under OCGA § 19-9-3, while the family violence petitions sought orders protecting the girls from their mother under OCGA § 19-13-3. The proceedings were filed in two different courts—the change-in-custody proceeding was filed in the Paulding County Superior Court, while the family violence proceedings were filed in the Cobb County Superior Court. Although the parties agreed for the Cobb County Superior Court to “defer” its ruling on the family violence proceedings to the Paulding County Superior Court, nothing in the record reflects that the family violence proceedings were ever formally transferred to the Paulding County Superior Court or consolidated with the change-in-custody proceeding. To the contrary, the Paulding County Superior Court record transmitted to us on appeal apparently does not contain parts of the record in the family violence proceedings, including the petitions that initiated those proceedings. (The impact of these irregularities, if any, upon the validity of the family violence orders has not been raised by the father and is not an issue in this appeal.)

It is true that the Paulding County Superior Court issued its ruling in the family violence proceedings under the case number assigned to the change-in-custody proceeding. But given that the proceedings involved different parties and different issues and were not consolidated, we find that this administrative decision does not change the separate and distinct nature of the proceedings. See generally in the Interest of D. N. M., 193 Ga.App. 812, 812-813 (1) (389 SE2d 336) (1989) (the case number used in the proceeding was not dispositive in determining whether the proceeding was a distinct case from a related proceeding).

Like the appellant in In the Interest of C. M. L., 260 Ga.App. 502 (580 SE2d 276) (2003), the father seeks in a single appeal review of orders entered in two separate proceedings. Because the rulings were rendered in different cases, his timely appeal from the order in the family violence proceedings does not confer jurisdiction upon the order dismissingthe change-in-custody petition under OCGA § 5-6-34 (d).

Therefore, we must consider whether the father’s appeal from the dismissal of the change-in-custody order itself was timely. See generally In the Interest of C. M. L., 260 Ga.App. at 503 (1) (finding appellate court had jurisdiction over one ruling but lacked jurisdiction over another ruling, where appellate review of rulings in two separate cases was brought in a single appeal). The Paulding County Superior Court signed that dismissal order and entered the judgment by filing it with the clerk in open court on October 27, 2010, thereby triggering OCGA § 5-6-38 (a)’s 30-day period for filing a notice of appeal. See OCGA § 5-6-34 (a) (11) (“judgments or orders in child custody cases including . . . refusing to change child custody” are judgments subject to direct appeal); GMC Group v. Harsco Corp., 293 Ga. App. 707 (667 SE2d 916) (2008) (the filing with the clerk of a judgment, signed by the judge, constitutes the entry of a judgment within the meaning of the Appellate Practice Act). The father, however, did not file a notice of appeal within 30 days after the judgment’s entry. Instead, he filed an application for discretionary appeal 55 days after the judgment’s entry, on December 14, 2010.

The father argues that “it is unclear whether [his] Counsel timely received a copy of [the dismissal] Order.” But notice to counsel of an order is not a prerequisite of the running of the 30-day time period for filing a notice of appeal; rather, lack of notice to counsel is a ground for a motion to set aside the order. See Pierce v. State, 289 Ga. 893, 894-895 (2) (717 SE2d 202) (2011) (“when notice of the entry of an appealable order is not given, the losing party should file a motion to set aside, and the trial court should grant the motion and re-enter the judgment, whereupon the 30-day appeal period would begin to run again”) (citation and punctuation omitted). There is no indication that the father sought to set aside the change-in-custody order.

“[T]he proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon an appellate court.” (Citation and punctuation omitted.) Register v. Elliott, 285 Ga.App. 741, 743 (647 SE2d 406) (2007). Because the father did not satisfy this requirement, we dismiss his untimely appeal from the order dismissing the change-in-custody petition. See OCGA § 5-6-48 (b) (1); Hill v. Buttram, 255 Ga.App. 123, 124 (564 SE2d 531) (2002); see also In the Interest of C. M. L., 260 Ga. App. at 503 (1).

Judgment affirmed in part and appeal dismissed in part.

Barnes, P. J., and Adams, J., concur.

Decided November 21, 2012.

Wayne D. Keaton, for appellant.

Baskin & Baskin, Carol S. Baskin, for appellee.


text:
    A12A1507.
    SPANN v. THE STATE.
    (736 SE2d 749)
   BARNES, Presiding Judge.

Teresa Jean Spann was arrested in May 2007 for driving under the influence. She was convicted in August 2010 after a stipulated bench trial, and in her first appeal, she contended that the trial court erred by admitting evidence of a prior similar offense and by not allowing the issuance of an out-of-state subpoena. Spann v. State, 310 Ga.App. 575 (713 SE2d 722) (2011). This court found no merit to the first argument, but remanded for the trial court to reconsider the subpoena issue in light of Davenport v. State, 289 Ga. 399 (711 SE2d 699) (2011). The trial court reconsidered and again concluded that Spann was not entitled to subpoena an out-of-state witness. Spann appeals, and finding that the trial court applied the wrong standard, we vacate the order and remand for further proceedings.

Under the Uniform Act to Secure the Attendance of Witnesses from Without the State, OCGA § 24-10-90 et seq., a defendant in a Georgia criminal case may seek a certificate requesting the attendance of an out-of-state witness and the production of evidence in that witness’s custody. Davenport, 289 Ga. at 401. Under OCGA § 24-10-94 (a), the Georgia trial court first determines whether the out-of-state person is a “material witness” and whether the other state has laws for commanding a person within its borders to attend and testify in criminal prosecutions. Id. If so, the Georgia trial judge may issue a certificate that is then presented to a judge of a court of record in the out-of-state county in which the witness is found. Id.

After a hearing at which the witness is ordered to appear, the out-of-state court shall issue a summons requiring the out-of-state witness to attend the Georgia criminal proceeding if the court determines that

the witness is material and necessary to the Georgia criminal proceeding, that compelling the witness to attend the Georgia proceeding and testify would not cause an undue hardship to the witness, and that Georgia will give the witness protection from arrest and the service of civil or criminal process. OCGA § 24-10-92 (b).

Davenport, 289 Ga. at 401-402.

The court in Davenport clarified that the Georgia court does not determine whether the out-of-state witness is “necessary and material.” Under OCGA § 24-10-92 (b), that determination is made by the judge in the state and county where the out-of-state witness is located. Rather,

the Georgia trial court evaluates the request under OCGA § 24-10-94 and must determine only whether the out-of-state witness is a material witness in the Georgia criminal prosecution and whether it should issue the certificate requesting the out-of-state court to order the out-of-state witness to attend the criminal proceeding in Georgia.

Davenport, 289 Ga. at 402. The court construed “material witness” as “a witness who can testify about matters having some logical connection with the consequential facts, especially] if few others, if any, know about these matters,” quoting Black’s Law Dictionary (8th ed. 2004). Id. at 404.

In this case, Spann sought to secure the appearance of an out-of-state witness — an executive of CMI, Inc., the Kentucky company that manufactures the Intoxilyzer 5000 — to testify about the Intoxilyzer 5000 source code. In the previously appealed order addressed in Spann, 310 Ga. App. 575, the trial court denied Spann’s motion for an order finding the source code material relevant and necessary, which would have facilitated obtaining a subpoena duces tecum from a Kentucky court ordering the out-of-state witness to appear before the Georgia court with the source code and other documents. We remanded for the trial court to determine whether the out-of-state witness was “material,” rather than “necessary and material,” and if so, whether it should have issued the certificate in this case, and if so, whether Spann was entitled to a new trial. Spann, 310 Ga. App. at 576.

Upon remand, the trial court held a hearing to determine “whether the Defendant had produced evidence to show that the production of the source code was material to challenge the accuracy of the breath test.” The trial court noted that neither Spann nor the State presented any new evidence at the hearing, and analyzed the issue “based on the evidence that was already presented to it during the prior hearings.” It concluded that the out-of-state witness was not “material.” Because Spann was not entitled to a certificate of materiality concerning the out-of-state witness, the trial court held, she was not entitled to a new trial.

As both parties note in their briefs, the appellate record does not include transcripts of the three evidentiary motions hearings which were held before the trial court issued the order we reversed in Spann, 310 Ga.App. 575. Spann indicates that the omission occurred because the transcripts of the hearings, which were conducted on behalf of three defendants, were filed only in one defendant’s record and not in Spann’s, and she asked both this court and the trial court to order the clerk of the trial court to supplement the record on appeal with those transcripts. In her motion to this court, Spann stated that the process of obtaining expedited transcriptions would be delayed “until terms of payment were resolved.” This court denied Spann’s motion, and in an amended motion Spann noted that the trial court had scheduled a hearing regarding the production of transcripts. The time for that hearing has passed, and the trial court clerk has not supplemented the record on appeal with these evidentiary hearing transcripts.

1. In this second appeal, Spann argues that the trial court erred by failing to apply the standard described in Davenport for determining whether the out-of-state witness could testify “about matters having some logical connection with the consequential facts.” She also argues that the trial court erred in finding that the source code was not material to her defense.

We review for abuse of discretion the trial court’s ruling on a motion made pursuant to OCGA § 24-10-90 et seq. Cronkite v. State, 317 Ga. App. 57, 59 (730 SE2d 694) (2012).

In order for the appellate court to determine whether the judgment appealed from was erroneous, it is the duty of the appellant to include in the record those items which will enable the appellate court to perform an objective review of the evidence and proceedings. OCGA § 5-6-41 (c). It is appellant’s obligation to provide the record substantiating his claim.

(Citation omitted.) Thompson v. State, 269 Ga.App. 77 (603 SE2d 684) (2004). Ordinarily, absent transcripts of the evidentiary hearings on which a trial court based its order, this court would affirm. Id.

In this case, however, the trial court’s order establishes that the court did not apply the relatively minimal standard enunciated in Davenport, 289 Ga. at 404, to determine whether Spann was entitled to a certificate of materiality under OCGA § 24-10-94 and thus a new trial. Instead, the trial court answered a different question: whether the Intoxilyzer 5000 was sufficiently reliable that expert testimony about its fallibility was unnecessary. The trial court found that the legislature has created procedural and testing safeguards to minimize the possibility of erroneous test results, that other safeguards were built into the trial process, such as a defendant’s right to an independent test under the implied consent law, the admissibility of testimony that “would go to the weight of the evidence,” and the fact that scientists and engineers on which expert opinions are based must be sufficiently qualified to attain publication.

Although the trial court stated the proper standard—that it was evaluating whether the out-of-state witness was “material” under Davenport, 289 Ga. 399 — the substance of its order establishes that it did not determine only whether the witness could “testify about matters having some logical connection with the consequential facts, especially] iffew others, if any, know about these matters.”Id. at 404. Instead, the trial court weighed the safeguards protecting the validity of the test results and the trial process generally and essentially determined that the witness was not necessary.

Accordingly, we vacate the trial court’s order finding that Spann was not entitled to a certificate of materiality to present to an out-of-state judge to determine whether the witness found within that court’s jurisdiction is “necessary and material,” and remand this case for further proceedings consistent with this opinion.

2. We previously considered and rejected Spann’s argument that the trial court erred in allowing the State to present similar transaction evidence. Spann, 310 Ga.App. at 576 (2). Absent changes in the evidentiary posture of a case which are absent here, a ruling by this court is binding in all subsequent proceedings in that case. Pierce v. State, 278 Ga.App. 162, 163 (1) (628 SE2d 235) (2006). The evidentiary posture of this case has not changed, and therefore our previous decision that the trial court did not err in admitting similar transaction evidence is binding.

Decided November 21, 2012.

Head, Thomas, Webb & Willis, William C. Head, for appellant.

Brian K. Fortner, Solicitor-General, Matthew C. Krull, Assistant Solicitor-General, for appellee.

Judgment vacated and case remanded.

Adams and McFadden, JJ., concur.

       We recognize the trial court’s dedication to resolving this issue in a manner consistent with the changing directives of the appellate courts.

       The Supreme Court of Georgia has granted the defendant’s petition for certiorari in Cronkite, framing the issue as “whether the Court of Appeals properly applied Davenport v. State, 289 Ga. App. 399 [(730 SE2d 694)] (2012).” Cronkite v. State, Case No. S12C1927 (November 19, 2012).


text:
    A12A0922.
    WILLIAMS v. THE STATE.
    (734 SE2d 745)
   BARNES, Presiding Judge.

Wesley Scott Williams entered guilty pleas for two counts of rape under two separate indictments for related incidents involving two minor victims, his stepdaughter and her friend. He was sentenced to two concurrent life sentences. Williams now appeals, pro se, the denial of his motion to withdraw his guilty plea. Following our review, we affirm.

We note as an initial matter that Williams’ appellate brief consists of three handwritten, unnumbered pages which do not comport with the rules of this Court. The first paragraph contains a purported statement of the case and the facts. Thereafter, Williams lists three errors, although they are not denominated as such, and on page two he appears to set forth arguments related to the errors. The arguments, however, are all intertwined into one all-embracing diatribe about the events below, interspersed with what could loosely be termed arguments, although they do not reference any specific error nor are they supported by any meaningful legal authority. See Court of Appeals Rules 22, 23, and 27. Particularly frustrating in Williams’ case is the fact that he had been appointed appellate counsel to represent him on the motion to withdraw his guilty plea. Williams’ motion to dismiss his appellate attorney was granted on December 19, 2011, after counsel timely filed the notice of appeal from the denial of Williams’ motion to withdraw his guilty plea.

[T]he rules of this court are not intended to provide an obstacle for the unwary or the pro se appellant. Briefs that do not conform to the rules regarding enumerations of error, structure of briefs, argument, or citation of authorities, as [Williams’] fails to do, are not merely an inconvenience or grounds for refusing to consider a party’s contentions. Such briefs hinder this court in determining the substance and basis of an appellant’s contentions both in fact and in law and may well prejudice an appellant’s appeal regardless of the amount of leniency shown. Nevertheless, we will address [Williams’] arguments, insofar as we are able to ascertain them from his brief.

Salazar v. State, 256 Ga.App. 50 (567 SE2d 706) (2002).

On appeal, Williams contends that he was denied his Sixth Amendment right to counsel, that his guilty plea was involuntary because it was illegally induced, and that his trial counsel was ineffective.

Aruling on a motion to withdraw a guilty plea lies within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of such discretion. When the validity of a guilty plea is challenged, the state bears the burden of showing affirmatively from the record that the defendant offered his plea knowingly, intelligently, and voluntarily.

(Footnote omitted.) Frost v. State, 286 Ga.App. 694 (649 SE2d 878) (2007). The State must show “that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea.” (Punctuation and footnote omitted.) Hubbard v. State, 301 Ga.App. 388 (687 SE2d 589) (2009). After a defendant’s sentence has been pronounced, his

guilty plea may be withdrawn only to correct a manifest injustice. The test for manifest injustice will by necessity vary from case to case, but it has been said that withdrawal is necessary to correct a manifest injustice if, for instance, a defendant is denied effective assistance of counsel, or the guilty plea was entered involuntarily or without an understanding of the nature of the charges.

(Footnotes omitted.) Id.

The record shows that Williams initially entered a plea of not guilty on two separate indictments for seventeen counts of various crimes involving his stepdaughter and her friend, including rape, child molestation and aggravated sodomy. Williams was appointed two attorneys before his trial, but he requested that each be removed from his case. At an October 16, 2008 hearing, Williams requested a bench trial and wanted a third lawyer, but the trial court advised him that he could either proceed with the second attorney or represent himself. The trial court further advised that should Williams decide to represent himself, his appointed counsel would assist him at trial. Williams’ appointed trial counsel then noted for the record that Williams had complained that he was withholding evidence from him, and had committed various other errors, including withdrawing his speedy trial demand. Counsel stated that he had previously given Williams all of the discovery in his possession, but would provide Williams with another copy.

Williams’ bench trial commenced on August 23, 2010, at which he represented himself, with his appointed counsel present. On the fourth day of the trial, Williams decided to enter a guilty plea. On August 26, 2010, Williams filed a pro se motion for appellate counsel, and on September 7, 2010, a third attorney was appointed to represent Williams.

Williams filed a pro se motion to withdraw his guilty plea on September 10, 2010, in which he made numerous allegations, including that he had been coerced into entering a guilty plea, that he had lacked the medical and mental capacity to enter a guilty plea, and that trial counsel did not inform him that he would lose certain rights by entering a plea. Following a hearing, at which he was represented by his new attorney, the trial court denied the motion. The trial court found that, although Williams contended that he was coerced by his former attorney into taking the plea deal, Williams had expressly dismissed the attorney before trial because he had contended that “he got bad information from the lawyer.” At the hearing, the trial court noted that Williams had expressly rejected his attorney, and observed that

he cannot then come back into court and say, well, [the attorney] gave me bad information. [The attorney] was not his lawyer. [Williams] had chosen to represent himself, at that point. . . . And furthermore, he was questioned on the record, do you understand the recommended sentence, the negotiated plea, do you have any questions about it, any questions about your rights; there were none at all that were raised at the time of the plea. I find that... Williams made numerous efforts, despite filing a speedy trial demand, to delay the trial.

On February 4, 2011, Williams’ third counsel filed a timely notice of appeal from the order. Williams, thereafter, filed several pro se motions in the trial court, including a motion for an out-of-time appeal, motion to void his conviction, and a request for transcripts. The trial court denied his motions, and Williams filed a pro se application for discretionary review of the denial of his motion for an out-of-time appeal. We granted the application, and both appeals were docketed in this court on January 12, 2012. This Court subsequently dismissed the latter appeal because it raised the same issues as the direct appeal filed by Williams’ attorney.

1. Williams’ contention that he was denied his right to counsel is meritless. The record shows that Williams was appointed three different attorneys and dismissed each of them. The Sixth Amendment does not guarantee a defendant preferred counsel or counsel with whom a “meaningful relationship” can be established. Wheat v. United States, 486 U. S. 153, 159 (108 SC 1692, 100 LE2d 140) (1988); Cotton v. State, 223 Ga. App. 288, 289-290 (477 SE2d 425) (1996).

The record does not support Williams’ claim that the trial court deprived him of counsel. Rather, the evidence shows that Williams consciously, for whatever reason, dismissed two appointed attorneys at the trial level. This amounted to a waiver by Williams of his right to be represented by counsel. Williams v. State, 169 Ga.App. 812, 815 (315 SE2d 42) (1984). The trial court did not abuse its discretion in refusing to allow Williams a third appointed counsel and in requiring him to either proceed to trial with his second appointed counsel or pro se. Hammonds v. State, 218 Ga.App. 423, 424 (461 SE2d 589) (1995).

Moreover, Williams cannot show how he was harmed by proceeding to trial because he subsequently pled guilty and was represented by appointed counsel at the hearing on his motion to withdraw his guilty plea.

Williams also argues that he was not made aware of his right to counsel once plea was initiated. He cites Faretta v. California, 422 U. S. 806, 835 (95 SC 2525, 45 LE2d 562) (1975) (trial court must explain the dangers of self-representation for waiver of counsel to be knowing and voluntary) for the proposition that he was not properly counseled at the plea stage. We do not agree. Our Supreme Court has held that an inquiry pursuant to Faretta v. California, 422 U. S. at 835, does not have to be conducted at the guilty plea phase. Parks v. McClung, 271 Ga. 795, 798 (524 SE2d 718) (1999), overruled on other grounds by Barnes v. State, 275 Ga. 499, 502, n. 19 (570 SE2d 277) (2002). Williams clearly waived his right to counsel in this case. Moreover, at the plea hearing, acting in an abundance of caution, the second appointed attorney counseled Williams about the effect and consequences of the guilty plea even though Williams was acting pro se, and Williams confirmed that he understood the nature of the charges and the punishments related to his plea.-

Accordingly, we find no merit to Williams’ contention that he did not knowingly and voluntarily waive his right to counsel at the plea hearing. The trial court did not abuse its discretion in declining to withdraw his guilty plea on this basis.

2. Regarding Williams’ contention that his guilty plea was involuntary, it is apparent from our review of the record that he was cognizant of all the rights he was waiving and the possible consequences of his plea, and that the plea was knowing and voluntary. Williams claims that he pled guilty because he was misinformed that he would retain his right to pursue certain “rights violations” including denial of his right to counsel, a speedy trial violation, and denial of “access to court,” but as the trial court noted, Williams expressed lack of confidence in his appointed attorney. It is unlikely, then, that Williams’ decision to plead guilty was coerced by information given by this same attorney. Williams was facing a sentence of “five life [sentences] plus 26 years” before pleading guilty, and received instead a sentence of two concurrent life sentences. Any question of duress was a question of fact for the trial court to resolve, and we will reverse the trial court’s decision on this issue only upon a showing of an abuse of discretion. Frost v. State, 286 Ga. App. at 697 (1). The trial court was authorized to discredit Williams’ testimony regarding the decision for his plea. See Carter v. State, 272 Ga. App. 158, 160 (2) (611 SE2d 790) (2005) (defendant’s allegation of pressure by trial counsel simply a matter of witness credibility for the trial court to decide); Collier v. State, 281 Ga.App. 646, 649-650 (637 SE2d 72) (2006) (the trial court was authorized to conclude that “any coercion [Williams] may have experienced in connection with the guilty plea arose from the circumstances in which he found himself, not from any deficiency in his trial counsel’s performance.”).

The record, including the transcript of the plea hearing, shows that Williams’ plea was voluntarily, knowingly and intelligently entered. Although the plea form that Williams signed at the plea hearing is not included in the record before this Court, at the plea hearing the trial court reviewed the form with Williams and clearly explained all of the rights he was relinquishing by pleading guilty. “[I]t is incumbent upon the trial court to ensure that a defendant understands that, by pleading guilty, he is relinquishing constitutional rights to which he is otherwise entitled.” Bowers v. Moore, 266 Ga. 893, 895 (1) (471 SE2d 869) (1996). Based on the colloquy between Williams and the trial court at his plea hearing, we are satisfied that Williams freely and voluntarily entered his plea with a full understanding of what the plea connoted and of its consequence. Thus, the trial court did not abuse its discretion by denying his motion to withdraw his plea on this basis.

Decided November 26, 2012

Wesley S. Williams, pro se.

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

3. Any remaining claims of error have been reviewed and are without merit. Morever, many of the arguments Williams made on appeal are related to pro se motions he filed while represented by an attorney and thus were “unauthorized and without effect.” Cotton v. State, 279 Ga. 358, 361 (5) (613 SE2d 628) (2005).

Judgment affirmed.

Adams and McFadden, JJ., concur.

       The trial transcripts are not included with the record.

       The denial of a motion for an out-of-time appeal is directly appealable. Lunsford v. State, 237 Ga.App. 696 (515 SE2d 198) (1999); OCGA § 5-6-35 (j).


text:
    A12A1353.
    WEEMS v. THE STATE.
    (734 SE2d 749)
   BARNES, Presiding Judge.

After police discovered more than 28 grams of cocaine in a car driven by Teumbie M. Weems, she was charged with trafficking in cocaine. Weems filed a motion to suppress, arguing that the officer extended the scope of the traffic stop and lacked reasonable suspicion of criminal activity beyond the traffic violation. Following the hearing on the motion, the trial court denied the motion but issued a certificate of immediate review. Thereafter, we granted Weems’ application for an interlocutory appeal, and this appeal ensued. For the reasons explained below, we reverse.

In reviewing a trial court’s denial of a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment, and we review de novo the trial court’s application of the law to the undisputed facts. Jackson v. State, 280 Ga.App. 716 (634 SE2d 846) (2006). Additionally, we adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. Id. at 716-717.

So viewed, the evidence shows that on December 14, 2010, a police officer with the K-9 unit of the Henry County Police Department stopped a vehicle being driven by Weems. The officer testified that he observed that there was less than a car length between Weems’ car and the car in front of her. The officer testified that he was concerned because the speed limit on the road was 70 miles an hour, and “at speeds of 72 miles an hour [the speed at which Weems was driving]... traveling that close to another vehicle... could be a safety issue on the interstate.”

After making the stop, the officer approached the passenger side of the vehicle and talked to Weems and her passenger, co-defendant Keith Walters, who was also the purported owner of the car. The officer explained the reason for the stop, and the videotape of the stop reflects that at approximately two minutes into the stop, he told Weems that he was not going to give her a citation, but would write her a courtesy warning. The officer asked Weems to step out of the car and walk with him to his patrol car to get his warning book. The two remained near the officer’s patrol car as he wrote the citation. The officer questioned Weems about where she lived, where she was going, whether Walters was her husband, and asked if he had picked her up. Weems responded that she was going Christmas shopping and that Walters had picked her up. She later said that the car belonged to Walters, but that it generally remained at her house and that Walters had come over that morning.

At about five minutes into the stop, the officer appeared to conclude writing the warning and walked back to the car where he asked Walters for the year of the car. The officer then questioned Walters whether he had picked up Weems, where he lived, and about information on his driver’s license. After talking with Walters, the officer walked back to Weems and told her that he was going to run both drivers’ licenses, but still assured her that she was only getting a warning. At this point, almost nine minutes into the stop, the officer asked Weems if he could search the car. Weems directed the officer to ask Walters because he owned the car. When the officer approached Walters, who was still in the car, he asked Walters if he had narcotics, currency such as “$10,000,” or weapons in the car. He then asked Walters if he could search the car while he was waiting on the driver’s license information. When Walters did not respond, the officer said he would “take it as a no.”

The officer then informed Walters that he was going to conduct a free air search with his dog around the car, asked Walters to step out of the car, and patted him down. When the officer noticed a bulge in Walters’ pocket, Walters informed him that the bulge was about $2,000 in cash. The officers directed Walters to put the money on the front passenger seat. He then conducted the free air search of the automobile and the dog alerted to the area near the front passenger door. The officer recovered a purse from the back of the vehicle that contained $18,000 cash and several baggies containing crack cocaine.

At the hearing on the motion to suppress, the officer testified that he observed certain traits and behaviors from Weems and Walters that led him to suspect criminal activity. He testified that when he questioned Weems her “hands started to shake very quickly, tremendously actually.” He also observed that “she kept biting her lower lip,” and that she looked at Walters “as if she was waiting for him to say something to her.” The officer further testified that he observed that Walters’ “carotid artery . . . started to pulsate very rapidly and both of his legs were starting to shake.” He testified that “due to their nervous behavior, I requested Ms. Weems [get] out of the vehicle.” The officer also testified that he was suspicious because the couple gave conflicting stories about who picked up whom.

On appeal, Weems contends that the officer tainted the free air search by placing the large amount of cash in the vehicle before walking the K-9 around the vehicle, that the officer impermissibly extended the traffic stop without specific and articulable facts to warrant the detention, and also that the officer impermissibly extended the traffic stop by asking dispatch to run a license check but then ignoring the dispatch’s attempt to contact the officer after the completion of the license check.

1. We first consider whether the length of a detention was reasonable, and in doing so “it is appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” (Punctuation and footnote omitted.) Pollack v. State, 294 Ga. App. 400, 404 (3) (b) (670 SE2d 165) (2008). If a police officer “continues to detain the subject after the conclusion of the traffic stop and interrogates him or seeks consent to search without reasonable suspicion of criminal activity, the officer has exceeded the scope of a permissible investigation of the initial traffic stop.” (Citation, punctuation and emphasis omitted.) State v. Felton, 297 Ga.App. 35, 37 (676 SE2d 434) (2009). However,

[i]t does not unreasonably expand the scope or duration of a valid traffic stop for an officer to prolong the stop to immediately investigate and determine if the driver is entitled to continue to operate the vehicle by checking the status of the driver’s license, insurance, and vehicle registration. Further, a law enforcement officer conducting a routine traffic stop may request and examine a driver’s license and check for outstanding warrants questioning the driver or engaging in “small talk” while verifying the items mentioned above is not a seizure unless the detention is prolonged by the questioning.

(Punctuation and footnotes omitted.) St. Fleur v. State, 296 Ga.App. 849, 851-852 (1) (676 SE2d 243) (2009).

In the instant case, no apparent reason exists to justify the officer’s decision to continue to detain Weems, particularly since he had already written Weems a warning citation before he inquired into other criminal activity. “[Ojnce the tasks related to the investigation of the traffic violation and processing of the traffic citation have been accomplished, an officer cannot continue to detain an individual without articulable suspicion.” Faulkner v. State, 256 Ga.App. 129, 130 (567 SE2d 754) (2002). This Court has held that “[Reasonable suspicion to detain and investigate for illicit drug activity does not arise from nervousness [or] differing statements.” Migliore v. State of Ga., 240 Ga. App. 783, 786 (525 SE2d 166) (1999).

The officer testified that he observed the nervousness at the time Weems got out of the car, yet he did not decide to run her driver’s license then; instead, the officer continued to write a warning, and did not ask dispatch to check her driver’s license until over eight minutes into the stop. There was no other evidence from which the officer could have formed a reasonable and articulable suspicion of other illegal activity. The officer had completed the tasks related to the investigation of the traffic violation of following too closely and had written the courtesy warning. After concluding the investigation related to the stop, to legally expand beyond the original investigation of following too closely and the issuance of the warning, the officer had to show that he had articulable suspicion of other illegal activity. See Gonzales v. State, 255 Ga.App. 149, 150 (564 SE2d 552) (2002) (after routine traffic stop has ended, an officer must have either valid consent or reasonable suspicion of criminal conduct before conducting additional questioning). As noted above, nervousness and inconsistent statements are not sufficient.

If during an investigatory stop the officer, without an articulable suspicion, proceeds to ask questions unrelated to the reason for the stop, the officer goes beyond the permissible scope of the investigation, and the further detention of the car driver exceeds that permittedby Terry v. Ohio[, 392 U.S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968)] and its progeny.

Almond v. State, 242 Ga.App. 650, 652 (1) (530 SE2d 750) (2000). “[I]t is not the nature of the question that offends the Fourth Amendment, it is whether in asking the questions the officer impermissibly detains the individual beyond that necessary to investigate the traffic violation precipitating the stop.” (Punctuation omitted; emphasis in original.) State v. Mauerberger, 270 Ga. App. 794, 795 (608 SE2d 234) (2004).

Decided November 26, 2012.

Daniel F. Farnsworth, for appellant.

Tommy K. Floyd, District Attorney, Blair D. Mahaffey, Assistant District Attorney, for appellee.

Accordingly, because the officer illegally detained Weems, the order of the trial court is reversed and the case is remanded with direction to grant Weems’ motion to suppress.

2. Weems’ remaining enumerations are moot.

Judgment reversed.

Adams and McFadden, JJ., concur.

       The amount recovered from Walters was $3,100.