author: MILLER, Presiding Judge.

text:
    A12A1124.
    HORNE v. THE STATE.
    (733 SE2d 487)
   MILLER, Presiding Judge.

Following a jury trial, Curtis Horne was convicted of possession of cocaine with intent to distribute (OCGA § 16-13-30 (b)), violation of the Georgia Safety Belt law (OCGA § 40-8-76.1 (b)), and driving without a license (OCGA § 40-5-20 (a)). Horne filed a motion for new trial, which the trial court denied. On appeal, Horne contends that (i) the evidence was insufficient to sustain his drug conviction; (ii) the evidence failed to establish a proper chain of custody; (iii) the trial court erred in denying his motion to suppress since his arrest and the warrantless search of his car were illegal; (iv) the trial court erred in allowing him to represent himself at trial; (v) the trial court failed to properly respond to a jury question; (vi) the trial court erred in imposing recidivist sentencing; (vii) the trial judge erred in failing to recuse himself; and (viii) his appellate counsel provided ineffective assistance. Discerning no error, we affirm.

On appeal, this Court must view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence; we determine the sufficiency of the evidence in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). “Conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict willbe upheld.” (Citation and punctuation omitted.) McCombs v. State, 306 Ga. App. 64, 65 (2) (701 SE2d 496) (2010).

So viewed, the trial evidence shows that on the evening of July 24, 2008, an officer with the Richmond County Sheriff’s Office was conducting routine patrol when he observed Horne driving his vehicle on the roadway. The officer testified that when Horne passed by, he could see that Horne was not wearing a seat belt, and that the seat belt was hanging in the driver’s side door. The officer initiated a traffic stop of Horne’s vehicle due to the seat belt violation.

During the traffic stop, the officer requested Horne’s driver’s license. Horne informed the officer that he did not have a driver’s license with him, but provided the officer with his name and date of birth. The officer ran a computer check using Horne’s information, which revealed that Horne did not have a valid driver’s license, and that his license had been suspended since 1997. As a result of the violation, the officer placed Horne under arrest. The officer directed Horne to step out of his vehicle and to place his hands on the roof of the vehicle. As Horne exited the vehicle, the officer observed Horne reach his hand into his pants pocket, pull out a clear bag, and place the bag in the doorjamb of the vehicle. After the officer handcuffed Horne and secured him in the back of the patrol car, the officer returned to Horne’s vehicle and retrieved the bag from the doorjamb.

The officer observed that the bag contained substances that were divided into two separate individual baggies. The officer performed field tests and weighed the substances, which confirmed that the substance in one baggie was 13.1 grams of crack cocaine and the substance in the other baggie was 7.5 grams of powder cocaine. The officer testified that based upon his experience and training, the quantity and separate packaging of the cocaine indicated that it was not for personal use, but rather, was intended for distribution.

The officer sealed the baggies of cocaine in an evidence bag and deposited the evidence bag into a secured evidence safe for transport to the Georgia Bureau of Investigation (“GBI”) Crime Lab. The GBI Crime Lab testing revealed that the drug substances were positive for cocaine.

Horne was subsequently indicted, tried, and convicted of the drug and traffic offenses.

1. Horne contends that the evidence was insufficient to sustain his conviction for possession of cocaine with intent to distribute. He argues that others had equal access to the vehicle where the drugs were found, and that the evidence was insufficient to prove an intent to distribute the drugs. His arguments are without merit.

“Possession of cocaine may be joint or exclusive, actual or constructive. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it.” (Punctuation and footnotes omitted.) Thomas v. State, 291 Ga. App. 795, 797 (1) (662 SE2d 849) (2008). Here, the evidence was sufficient to show that Horne had actual possession of the cocaine. In this regard, the officer testified that he observed Horne handling the bag of cocaine as he removed it from his pants pocket and attempted to hide it in the vehicle’s doorjamb. Horne’s arguments challenging the officer’s credibility are unavailing. Determinations regarding the credibility of witnesses and the resolution of conflicts in the evidence are within the sole province of the jury and afford no basis for reversal on appeal. See id. at 797-798 (1); Gaston v. State, 257 Ga.App. 480, 482 (1) (571 SE2d 477) (2002).

Moreover, Horne’s reliance upon the equal access rule is misplaced.

The equal access rule, as it applies in the automobile context, is merely that evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver. However, equal access is merely a defense available to the accused to whom a presumption of possession flows. Where the State did not show the indicia giving rise to the presumption, that is, ownership or exclusive control of the vehicle, no presumption arose and therefore there was no triggering of the equal access defense. ... Moreover, the equal access rule applies only where the sole evidence of possession of contraband found in the vehicle is the defendant’s ownership or possession of the vehicle.

(Citations and punctuation omitted.) Hight v. State, 293 Ga. App. 254, 258 (5) (666 SE2d 678) (2008). Here, the State did not rely upon a presumption that the cocaine was in Horne’s possession based upon his status as the driver of the vehicle. Rather, the State relied upon direct evidence that Horne had actual possession of the cocaine by handling and attempting to hide it. Under these circumstances, the equal access rule was inapplicable. See, e.g., Thomas, supra, 291 Ga. App. at 798 (2).

The evidence also was sufficient to support a finding that the cocaine was intended for distribution.

It is true that mere possession of cocaine, without more, will not support a conviction for possession with intent to distribute. But additional evidence may support proof of intent to distribute, including the packaging of the contraband ... and expert testimony that the amount of contraband possessed was consistent with larger amounts usually held for sale rather than for personal use.

(Citations and punctuation omitted.) Burse v. State, 232 Ga.App. 729, 730 (1) (503 SE2d 638) (1998). The officer opined that the amount of cocaine in Horne’s possession was greater than that normally kept for personal use, and was separately packaged for distribution. Based upon this evidence, the jury was authorized to find that Horne possessed the cocaine with intent to distribute. See id. at 730-731 (1).

2. Horne further argues that the drug evidence should have been excluded since the State failed to establish a proper chain of custody. We disagree.

In order to show a chain of custody adequate to preserve the identity of fungible evidence, the [S]tate must prove with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The [S]tate is not required to foreclose every possibility of tampering; it need only show reasonable assurance of the identity of the evidence.

(Citations and punctuation omitted.) Sanders v. State, 243 Ga. App. 216, 217 (1) (534 SE2d 78) (2000).

The evidence showed that upon retrieving and field testing the cocaine, the officer sealed the cocaine in an evidence bag with tamper resistant tape, followed procedures for filling out a property receipt, and deposited the evidence bag into a secured drug safe maintained by the Narcotics Division. An investigator with the Narcotics Division explained that the evidence bag contained an integrity seal that could not be removed without tearing the bag. The investigator further explained that the property receipt was used to track the property, and that each person who took custody of the evidence was required to sign the property receipt. The investigator stated that after the evidence bag was deposited into the drug safe, she removed the evidence bag and transported it to the GBI Crime Lab for testing, as noted on the property receipt. Upon delivering the evidence bag to the GBI Crime Lab, the property receipt was stamped with the date and time to reflect the delivery and was placed in a locker that was accessible only to the GBI Crime Lab technicians. A forensic drug chemist from the GBI Crime Lab testified that when the evidence bag was received at the lab, a bar code label was attached to further track the custody of the drug evidence at the lab. The chemist retrieved the evidence bag from the GBI Crime Lab locker and tested the drug substance.

The foregoing evidence sufficiently established that at every point, the cocaine evidence was clearly marked and well secured. No evidence of tampering was presented, and the evidence showed with reasonable certainty that the substance tested was the same as that seized. Thus, the chain of custody requirement was satisfied. See Maldonado v. State, 268 Ga. App. 691, 691-695 (1) (603 SE2d 58) (2004); Sanders, supra, 243 Ga. App. at 217-218 (1) (a).

3. Next, Horne argues that the trial court erred in denying his motion to suppress since his arrest and the warrantless search of his car were illegal. Again, no error has been shown.

In reviewing the grant or denial of a motion to suppress, we construe the evidence in a light most favorable to upholding the trial court’s findings and judgment. When the trial court’s findings are based upon conflicting evidence, we will not disturb the lower court’s ruling if there is any evidence to support its findings, and we accept the court’s credibility assessments unless clearly erroneous. The trial court’s application of law to undisputed facts, however, is subject to de novo review.

(Citation omitted.) Sommese v. State, 299 Ga. App. 664, 665 (683 SE2d 642) (2009). “Further, in reviewing the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial.” (Citations omitted.) Souder v. State, 301 Ga.App. 348, 349 (1) (687 SE2d 594) (2009).

At the motion to suppress hearing, the only witness presented was the officer who conducted the traffic stop. The officer’s testimony at the hearing was essentially the same as his testimony at trial, as set forth above. In this regard, the officer testified that he stopped Horne’s vehicle upon observing that Horne was committing a seat belt violation under OCGA § 40-8-76.1 (b). At the time of the stop, Horne advised the officer that he did not have his driver’s license with him. Horne provided his name and date of birth, which the officer ran in a computer check. The results of the computer check reflected that Horne did not have a valid driver’s license. The officer advised Horne to step out of his vehicle and that he was being placed under arrest. As Horne stepped out of his vehicle, the officer observed Horne reach into his pants pocket, pull out a plastic bag, and place the bag into the vehicle’s doorjamb. The officer handcuffed Horne, secured Horne in the back of the patrol car, and went back to retrieve the bag that Horne had attempted to hide in the doorjamb.

Based upon the officer’s testimony at the hearing and at trial, the traffic stop, arrest, and search were lawful.

When a police officer makes a traffic stop based on his having a clear view of the occupants of the front seat of a vehicle not wearing their seat belts, he is in the same situation as a police officer making a stop pursuant to Terry v. Ohio, 392 U. S. 1 [(88 SC 1868, 20 LE2d 889)] (1968), except that the initial stop is based on probable cause, not just a reasonable and articulable suspicion that an individual is, or is about to be, engaged in criminal activity. While the probable cause for the initial stop cannot itself be used as probable cause for arrests based on violations of other Code sections, once a stop for a seat belt violation is made, the language of OCGA § 40-8-76.1 does not preclude an officer from conducting a reasonable inquiry and investigation to insure both his safety and that of others.

(Citation and punctuation omitted.) Davis v. State, 232 Ga. App. 320, 321 (1) (501 SE2d 836) (1998). Accordingly, when the officer observed Horne’s seat belt traffic violation, he was authorized to initiate a traffic stop. See id.; see also Clark v. State, 305 Ga. App. 699, 700 (1) (700 SE2d 682) (2010) (officer’s observation that defendant was not wearing a seat belt supported traffic stop). Thereafter, the officer was authorized to make a reasonable inquiry and investigation following the initial stop. See Davis, supra, 232 Ga. App. at 322 (1). When the officer learned that Horne did not have a valid driver’s license, the officer had probable cause to arrest Horne for driving without a license. See Edge v. State, 269 Ga.App. 88, 89 (603 SE2d 502) (2004). Since Horne’s offense of driving without a license provided independent support for the arrest, the arrest was lawful. See Edge, supra, 269 Ga. App. at 89; see, e.g., Davis, supra, 232 Ga. App. at 322 (1).

Under the “automobile exception” to the warrant requirement imposed by the Fourth Amendment, a police officer may search a car without a warrant if he has probable cause to believe the car contains contraband, even if there is no exigency preventing the officer from getting a search warrant. Because there is no exigency requirement in this context, the warrantless search of an automobile will be upheld so long as there was probable cause to suspect it contained contraband, even if the driver was arrested and handcuffed and the keys were taken from him before the car was searched. . . . Probable cause to search an automobile exists when the facts and circumstances before the officer are such as would lead a reasonably discreet and prudent man to believe that the contents of the vehicle offend the law.

(Citations and punctuation omitted.) State v. Sarden, 305 Ga. App. 587, 589 (699 SE2d 880) (2010). “Observation of what reasonably appear to be furtive gestures is a factor which may properly be taken into account in determining whether probable cause exists [for a vehicle search].” (Citations omitted.) State v. Menezes, 286 Ga. App. 280, 283 (2) (648 SE2d 741) (2007). After the officer observed Horne’s furtive movements of reaching into his pants pocket, retrieving the plastic bag, and efforts to conceal the bag in the doorjamb, the officer had probable cause to search the vehicle for suspected drug contraband. See, e.g., id.; see also Sarden, supra, 305 Ga. App. at 589-590 (“The officer’s observation of what he suspected, based upon his law enforcement experience, to be crack cocaine, would have led a reasonably discrete and prudent person to believe that drug contraband was in the car.”) (citations and footnote omitted); Martinez v. State, 303 Ga. App. 166, 171 (2) (692 SE2d 766) (2010) (based upon their observations, the officers had probable cause to believe that drug contraband was in the truck and authorized the search of the truck under the automobile exception).

Horne nevertheless contends that the arrest and search were unlawful based upon conflicts in the officer’s affidavit for the arrest warrant, which stated that Horne had pulled the bag of cocaine from his pants pocket and handed it to the officer. However, the conflict in the officer’s statements was a matter affecting the officer’s credibility as a witness, which was for the judge’s resolution in reaching a decision on the motion to suppress. See Rogers v. State, 155 Ga. App. 685, 686 (2) (272 SE2d 549) (1980) (“Credibility of witnesses, resolution of any conflict or inconsistency, and weight to be accorded testimony is solely the province of the judge on a motion to suppress.”) (citations omitted). Notwithstanding the conflict, the hearing and trial testimony supported the denial of the motion to suppress, and therefore, the trial court’s decision was not erroneous. See Souder, supra, 301 Ga. App. at 350 (1), n. 3.

4. Next, Horne asserts that the trial court erred in refusing to appoint him counsel at the motion to suppress hearing and in allowing him to represent himself at trial. We disagree.

The record in this case shows that Horne was initially represented by public defenders, but he terminated their representation on at least three occasions prior to trial. Horne filed his own defense motions, including his motion to suppress, as a pro se defendant. Prior to the commencement of the motion to suppress hearing, however, Horne indicated that he wanted to have counsel. The State objected and asserted that Horne’s request was merely a delay tactic. The trial court proceeded with the hearing, at which time Horne represented himself and was allowed to engage in witness cross-examination and present arguments in support of his motion. The trial court advised Horne that he could obtain counsel for trial and directed the public defender to speak to Horne again about providing legal representation.

When the trial commenced, Horne was represented by a public defender, who conducted jury selection on Horne’s behalf. After the jury was selected, however, Horne again advised the trial court that he wanted to represent himself. The trial court noted that Horne had been inconsistent and had terminated his appointed counsel on several prior occasions. The trial court advised Horne that if he insisted upon self-representation, he would be required to question the witnesses and make legal objections notwithstanding his lack of legal training or knowledge. Horne was advised of the nature of his charges and the possible punishment that he faced upon conviction. Horne nevertheless confirmed that he wanted to represent himself during the trial. In accordance with Horne’s request, the trial court entered an order allowing Horne to again terminate his counsel, finding that Horne had made a voluntary and knowing waiver of his right to counsel. The trial court nevertheless required the public defender to stand by to assist Horne during the trial.

Horne now argues that the trial court erred in allowing him to represent himself during the proceedings without warning him of the dangers of self-representation. His argument is without merit.

As pronounced in Faretta v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562) (1975), a defendant has the right of self-representation. See Wayne v. State, 269 Ga. 36, 37-38 (2) (495 SE2d 34) (1998). However,

a defendant cannot exercise this right unless it is shown that he has adequately waived his right to counsel. . . . [Accordingly,] the record should reflect a finding of the trial court that the defendant has validly chosen to proceed pro se and that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.

(Citations and punctuation omitted.) Id. at 38 (2).

Here, the trial court made a finding that Horne had made an informed and voluntary choice to relinquish his right to counsel, and the record supports the trial court’s finding. Given the timing of Horne’s request for counsel at the motion to suppress hearing, the trial court could have concluded that the request was a dilatory tactic. See, e.g., Mondragon v. State, 270 Ga. App. 780, 781-782 (607 SE2d 914) (2004). The trial court had repeatedly informed Horne of the dangers of his self-representation, noting that Horne did not know the court rules and procedures. Prior to Horne’s election at trial, he also was advised of the nature of his charges and the possible punishment that he faced upon conviction. Horne nevertheless insisted that he wanted to terminate his appointed counsel and to represent himself in the case. “The record further shows that [Horne] was familiar with the legal system and legal representation as a criminal defendant with [four] prior criminal convictions; he had experience with the criminal legal process and understood the consequences of criminal conviction.” (Citation, punctuation and footnote omitted.) Brooks v. State, 243 Ga. App. 246, 249 (1) (a) (ii) (532 SE2d 763) (2000). The record as a whole sufficiently established that Horne was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver. See Wayne, supra, 269 Ga. at 38 (2); Mondragon, supra, 270 Ga. App. at 781-782; Brooks, supra, 243 Ga. App. at 248-250 (1) (a).

Horne nevertheless asserts that the trial court failed to make an appropriate inquiry as to whether he knowingly and intelligently waived his right to counsel. In this regard, Horne contends that the trial court did not establish that the waiver was

made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter.

See Prater v. State, 220 Ga. App. 506, 509 (469 SE2d 780) (1996). Contrary to Horne’s assertion, “it is not incumbent upon a trial court to ask each of the questions set forth in Prater. The record need only reflect that the accused was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver.” (Citations and punctuation omitted.) Wayne, supra, 269 Ga. at 38 (2). As previously stated, the record sufficiently established Horne’s knowing and intelligent waiver of his right to counsel in this case.

5. Horne argues that the trial court failed to properly respond to a jury question. During their deliberations, the jury sent questions inquiring as to whether there was a legal weight limit required to support the charge for possession with intent to distribute. In response, the trial court advised the jury that “[t]here [was] no legal limit (grams) for the accused to be charged with intent to distribute.” Horne argues that the trial court should have responded by charging the jury as to his equal access defense, and that the trial court erred in failing to do so.

Contrary to Horne’s argument, a jury charge on equal access would not have been responsive to the jury’s questions. Moreover, as stated in Division 1 above, the equal access rule did not apply in this case. As reflected in the trial court’s response to the jury’s questions, OCGA § 16-13-30 (b) does not specify a legal weight limit for the offense of drug possession with the intent to distribute. Rather, various kinds of additional evidence may be considered as proof of intent to distribute, including circumstances regarding the packaging of the contraband and expert testimony that the amount of contraband possessed was consistent with larger amounts usually held for sale rather than personal use. See Haywood v. State, 301 Ga. App. 717, 719 (1) (689 SE2d 82) (2009); Burse, supra, 232 Ga.App. at 730 (1). No error has been shown in the trial court’s response to the question posed by the jury.

6. Horne further contends that the trial court erred in imposing recidivist sentencing.

OCGA § 17-10-7 (a) and (c) pertinently provide that recidivist defendants “shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted” and “shall not be eligible for parole until the maximum sentence has been served.” Prior to trial, the State served notice of its intent to seek recidivist punishment under OCGA § 17-10-7 (a) and (c) based upon Horne’s four prior felony convictions entered in 1986, 1994, 1997, and 2000. During the sentencing proceeding, certified copies of Horne’s prior felony convictions were introduced and admitted into evidence. Horne, however, objected to the admission of his prior felony convictions and presented arguments that collaterally attacked the validity of the guilty pleas upon which the prior convictions were entered.

When a defendant collaterally attacks the validity of a prior guilty plea being used by the State for recidivist sentencing in a subsequent proceeding,

the burden is on the State to prove both the existence of the prior guilty pleas and that the defendant was represented by counsel in all felony cases [.] . . . Upon such a showing, the presumption of regularity is then applied and the burden shifts to the defendant to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. Defendant can attempt to meet his burden of production with a transcript, with testimony regarding the taking of the plea, or with other affirmative evidence. A silent record or the mere naked assertion by an accused that his prior counseled plea was not made knowingly and intelligently is insufficient.

(Citations and punctuation omitted.) Nash v. State, 271 Ga. 281, 285 (519 SE2d 893) (1999); see also Smith v. State, 260 Ga. App. 785, 787 (581 SE2d 349) (2003).

Here, the State’s evidence served as sufficient proof of the existence of Horne’s prior guilty pleas, and that Horne was represented by counsel when those pleas were taken. Although Horne asserted that he had been granted a new trial which remained pending in his 1997 case, he failed to present any affirmative evidence of such. At the motion for new trial hearing, his counsel advised the trial court that he had reviewed the transcript from the 1997 proceedings and that Horne’s assertion was incorrect. Horne’s counsel confirmed that the trial court had entered a final written order that denied the motion for new trial. Regardless, the evidence of record established that Horne had more than three felony convictions based upon his guilty pleas, and Horne failed to show any infringement of his rights or procedural irregularities in his guilty pleas. Therefore, the trial court’s imposition of a recidivist sentence in the instant case was proper. See OCGA § 17-10-7 (c); Reedman v. State, 265 Ga. App. 162, 169-170 (14) (593 SE2d 46) (2004).

7. Horne argues that the trial judge erred in failing to grant his motion for recusal and in failing to transfer his motion to a different judge for a ruling. We are unpersuaded.

Uniform Superior Court Rule (“USCR”) 25.1 pertinently provides:

All motions to recuse or disqualify a judge presiding in a particular case or proceeding shall be timely filed in writing and all evidence thereon shall be presented by accompanying affidavit(s) which shall fully assert the facts upon which the motion is founded. Filing and presentation to the judge shall be not later than five (5) days after the affiant first learned of the alleged grounds for disqualification,... unless good cause be shown for failure to meet such time requirements. . . .

(Punctuation omitted.); see also Johnson v. State, 250 Ga. App. 245, 246 (1) (550 SE2d 113) (2001) (motions to recuse must be timely filed within five days after the facts demonstrating the basis for disqualification become known, unless good cause is shown). If a defendant is aware of a possible basis for recusal, he cannot sit back, hope for a favorable outcome at the motion hearing or at trial, and then raise the issue after receiving an unfavorable ruling. See Johnson, supra, 250 Ga. App. at 246 (1). “Absent the filing of a timely recusal motion accompanied by a legally sufficient affidavit, such motion is subject to denial on its face.” (Footnote omitted.) Id.

Horne filed his motion to recuse on December 4, 2008, after the trial court denied his motion to suppress. Horne’s motion was not accompanied by the required affidavit, but generally alleged that the trial judge could not be fair since the trial judge had previously presided over another case involving Horne and had “allowed [the] police to lie” at the suppression hearing. As an initial matter, “[t]he fact that the judge has sat on prior cases of the party or ruled on prior matters in the case before the judge is legally insufficient as a grounds for recusal.” (Citations and punctuation omitted.) Baptiste v. State, 229 Ga. App. 691, 697 (1) (494 SE2d 530) (1997). Furthermore, notwithstanding his knowledge that the trial judge had presided over his prior case, Horne did not file his recusal motion until approximately two months after the case had been pending before the trial judge. Horne did not object when the trial judge subsequently presided over the motion to suppress hearing. Consequently, the motion was untimely, and Horne failed to show good cause for his failure to meet the time requirements. Since the motion did not comply with the requirements of USCR 25.1 and contained only the defendant’s unverified speculation that the trial judge would be biased against him, the trial court did not err in denying the defendant’s recusal motion on its face. See Thomason v. State, 281 Ga. 429, 435 (16) (637 SE2d 639) (2006); Brice v. State, 242 Ga. App. 163, 167 (7) (529 SE2d 178) (2000).

8. Lastly, Horne contends that his appellate counsel provided ineffective assistance at the motion for new trial hearing. Significantly, when Horne filed his pro se motion raising his claim, he was still being represented by his appellate counsel and his claim was not considered by the trial court.

[A] convicted defendant is not authorized to assert a pro se claim of ineffective assistance while represented by counsel. The Sixth Amendment right does not afford the defendant the hybrid right to simultaneously represent himself and be represented by counsel. ... A pro se motion filed by a convicted defendant while represented by counsel is unauthorized and without effect.

(Citations and punctuation omitted.) Williams v. Moody, 287 Ga. 665, 669 (2) (697 SE2d 199) (2010). Since Horne’s challenge regarding the effectiveness of Ms appellate counsel was without effect and was not considered below, it cannot be addressed in this appeal. See Brooks v. State, 265 Ga. 548, 551 (7) (458 SE2d 349) (1995) (the defendant’s pro se appeal concerning the effectiveness of appellate counsel was premature since the representation was still ongoing when the claim was raised and the trial court had not considered the claim). If Horne elects to pursue his claim, he must do so in the proper forum. Id.

Decided October 25, 2012

Reconsideration denied November 14, 2012.

Curtis Horne, pro se.

R. Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

Judgment affirmed.

Ray and Branch, JJ., concur.

       Horne appeared pro se at trial and in this appeal. Although Horne had been appointed a public defender for the trial proceedings, he elected to terminate the public defender’s representation and to proceed pro se. Horne also was appointed counsel to assist in pursuing his post-conviction motion for new trial and appeal. After the instant appeal was docketed, however, Horne requested that appellate counsel withdraw from representation, and that he he allowed to represent himself pro se on appeal. In accordance with Horne’s request, Horne’s appellate counsel filed a motion to withdraw, which this Court granted. Thereafter, Horne filed his pro se appellant’s brief and enumeration of errors.

       Notably, when the State presented the investigator’s testimony to establish the chain of custody, Horne objected on the grounds that the testimony was “just a waste of time” and “ha[d] nothing to do with the case.” The State explained that the testimony was relevant to prove the chain of custody, and the trial court overruled Horne’s objection.

       Although Home points to evidence that the officer failed to place his initials on the sealed evidence bag, such does not require a different outcome. Significantly, the evidence nevertheless established that the officer had sealed the evidence bag, and that it remained sealed until it was tested at the GBI Crime Lab. Also unavailing is Horne’s contention that the evidence reflected a disparity in the weight of the cocaine that was tested. The officer testified that the cocaine and packaging had a total weight of 20.6 grams. The GBI Crime Lab report reflected that the cocaine weighed approximately 17 grams. The officer and chemist explained that the weight difference was due to the fact that the officer had weighed the cocaine while it was in the package, whereas the chemist had taken the cocaine out of the package to obtain its weight. The trial court was authorized to conclude that the difference in the field weight and the lab weight was not sufficiently material to require the exclusion of the evidence. See Maldonado v. State, 268 Ga.App. 691, 695 (1) (603 SE2d 58) (2004).

       Notably, at the motion hearing, the officer also testified that the computer check reflected that there was an active warrant for Home’s arrest. “[A] radio transmission that confirms an outstanding warrant establishes the necessary probable cause to arrestf.] .. . Whether or not the information about the warrant later proved incorrect or invalid is immaterial.” (Citations and punctuation omitted.) Howard, v. State, 273 Ga. App. 667, 668 (1) (615 SE2d 806) (2005). Accordingly, the active warrant reported during the check provided an alternate basis of probable cause for Horne’s arrest.

       Horne’s reliance upon the ruling of Arizona v. Gant, 556 U. S. 332 (129 SC 1710, 173 LE2d 485) (2009), is misplaced. Gant applies in the context of a search incident to arrest, “[b]ut the automobile exception is a separate and distinct rationale for upholding the search of a vehicle under the Fourth Amendment.” (Citation and punctuation omitted.) Sarden, supra, 305 Ga. App. at 589, n. 1. Gant otherwise reaffirmed the automobile exception, providing that if there is probable cause to believe a vehicle contains evidence of criminal activity, an officer is authorized to search any area of the vehicle in which the evidence might he found. Gant, supra, 556 U. S. at 347 (TV); Sarden, supra, 305 Ga. App. at 589, n. 1.

       The jury’s questions specifically asked, “What is the legal weight for intent?” and ‘What is the legal limit (grams) for the accused to be charged with intent to distribute?”

       In light of Home’s status as a recidivist offender, the trial court imposed the maximum sentence of 30 years without parole for Horne’s drug offense under OCGA §§ 16-13-30 (d), 17-10-7 (a) and (c).

       Horne also incorrectly asserts that the trial court had previously ruled that the State could not rely upon his convictions that were more than ten years old for purposes of the recidivist sentencing. Contrary to Horne’s argument, the trial court had ruled that those convictions could not he introduced as impeachment evidence at trial; the trial court’s ruling did not impact the State’s ability to present the convictions as a basis for recidivist sentencing, which was a separate matter, as acknowledged by Horne’s counsel at the motion for new trial hearing.


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A12A0893.
    STOKES & CLINTON, P.C. v. NOBLE SYSTEMS CORPORATION.
    (734 SE2d 253)
   DOYLE, Presiding Judge.

Stokes & Clinton, PC. (“S&C”), appeals from the trial court’s refusal to set aside a default judgment pursuant to OCGA § 9-11-60 (d) for various reasons, including that Noble Systems Corporation failed to properly serve S&C. The trial court determined that S&C waived the defense of insufficient service by failing to file a responsive pleading or motion prior to entry of default. We granted S&C’s application for discretionary appeal, and for the reasons that follow, we vacate the judgment and remand the case.

The record shows that Noble filed a breach of contract claim against S&C on January 28,2011. Noble later filed the affidavit of the private process server, Roger Snow, in which he averred that he had served the complaint on Steven Jacobs, the registered agent of S&C, on February 8, 2011, at 12:55 p.m. at the office of S&C. After S&C failed to answer, Noble filed a certificate of default on April 12, 2011, and the trial court issued an order and final judgment in favor of Noble on April 27, 2011.

Prior to entry of the final judgment, on April 19, 2011, S&C filed the affidavit of Jacobs in which he stated that Snow’s affidavit was false, Jacobs was never served with the complaint, and video surveillance of the S&C lobby on the day in question showed that a process server left documents on the receptionist desk without serving Jacobs or anyone else. S&C did not file any other documents with the trial court prior to the trial court’s April 27, 2011 final judgment.

Thereafter, on May 18, 2011, S&C filed a motion to set aside the default judgment, arguing, inter alia, that there was insufficient service of process and personaljurisdiction under OCGA § 9-11-60 (d) (1). The trial court denied the motion to set aside the default judgment and explained that

in order to challenge the sufficiency of process [,] the Defendant is required to make a motion or include its defense of lack of jurisdiction in a responsive pleading to the original complaint. Failure to do one or the other will result in the defense of lack of jurisdiction for improper service being waived. [] The Court finds that service was made upon Defendant on February 8, 2011 [,] and Defendant was then required to file an Answer within the time allowed. Having failed to file an Answer and/or a motion, the Court properly exercised personal jurisdiction over this matter.

S&C now appeals.

S&C contends that the trial court erred by denying its motion to set aside the judgment for lack of proper service. We agree.

Under Georgia law, when the defense of lack of personal jurisdiction due to defective service is raised by way of a motion to set aside the judgment, the trial court sits as the trier of fact. Our standard of review in this regard is the any evidence rule, and absent an abuse of discretion, we will not reverse a trial court’s refusal to set aside a judgment.

The trial court’s order denying the motion to set aside the judgment found that S&C waived its right to assert the defense of improper service by failing to file an answer or special motion asserting the defense of lack of proper service during the time allotted in OCGA § 9-11-12 (b). This determination was incorrect.

As an initial matter, the affidavit filed by Jacobs on April 19, 2011, did not constitute an answer or appearance on behalf of S&C or act to waive any defenses on behalf of S&C. Moreover, S&C did not waive the defense of lack of proper service by failing to file a responsive pleading or filing a motion to dismiss after being served under Georgia’s Long Arm Statute because it appropriately raised the issue via a motion to set aside the judgment pursuant to OCGA § 9-11-60 (d). The language in Slaughter that supports the trial court’s determination that S&C waived its defense of lack of proper service was dicta as the court found that the lack of signature of the court clerk on the service copies did not render service void. In this case, the trial court erred by simply finding that S&C waived its right to raise the defense of lack of proper service and by not determining whether Noble properly served S&C based on a review of the evidence presented by the two parties.

Decided November 14, 2012.

M. Katherine Durant, Pamela A. Moore, for appellant.

Robbins Freed, Richard L. Robbins, Jean-Alain Schneider, for appellee.

Accordingly, the trial court’s denial of S&C’s motion to set aside the judgment is vacated, and the case is remanded.

Judgment vacated and case remanded.

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

       The trial court relied on Slaughter v. Faust, 155 Ga. App. 68 (2) (270 SE2d 218) (1980), in support of this proposition.

       (Punctuation omitted.) Kahlig v. Martinez, 272 Ga. App. 491 (612 SE2d 833) (2005).

       See Chen v. Alexander Terry Assoc., 228 Ga. App. 345, 346 (491 SE2d 834) (1997).

       See id. at 346 (“the defendants’ failure to answer [does not] operate as a waiver of their right to assert lack of personal jurisdiction defenses by motion to open default, by motion to set aside a judgment, or by a subsequent collateral attack”), citing Hoesch America v. Dai Yang Metal Co., Ltd., 217 Ga. App. 845, 847-848 (459 SE2d 187) (1995).

       See Slaughter, 155 Ga. App. at 69 (2).


author: Dillard, Judge.

text:
    A12A0979.
    UPPER CHATTAHOOCHEE RIVERKEEPER, INC. v. FORSYTH COUNTY et al.
    (734 SE2d 242)
   Dillard, Judge.

This case involves the Georgia Environmental Protection Division’s (the “EPD”) issuance of a permit to Forsyth County, authorizing two of the county’s water-reclamation facilities to discharge treated wastewater into the Chattahoochee River. Following the issuance of the permit, Upper Chattahoochee Riverkeeper, Inc., (“UCR”) challenged the EPD’s decision by filing a petition with the Office of State Administrative Hearings. The County intervened to defend the permit, and although the presiding administrative law judge (“ALJ”) dismissed most of UCR’s claims on summary determination, after an evidentiary hearing, the ALJ ruled that the permit was issued in violation of Georgia’s water anti-degradation rule and ordered the director of the EPD to reissue the permit with stricter effluent-discharge limits. Subsequently, the EPD and the County sought superior-court review. The superior court reversed the AL J’s decision and remanded the case for further proceedings. UCR now appeals, arguing that the superior court erred by (1) failing to properly interpret the anti-degradation rule, (2) treating an EPD guidance document as governing law, (3) ignoring Supreme Court of Georgia precedent, and (4) finding that the ALJ lacked the authority to order the director of the EPD to reissue the permit with revised effluent limits. For the reasons set forth infra, we affirm all but one aspect of the superior court’s ruling.

The record shows that on August 18, 2010, the EPD, a division of the Georgia Department of Natural Resources, issued a National Pollutant Discharge Elimination System (“NPDES”) permit to Forsyth County, authorizing the discharge of treated wastewater from the Fowler and Shakerag water reclamation facilities (“WRFs”) into the Chattahoochee River approximately nine miles downstream from the Buford Dam and 27.5 miles upstream from the Morgan Falls Dam. The permit authorized the WRFs to discharge six million gallons of treated wastewater per day into the river. In addition, the permit established limits for the quality of the discharged waste-water by placing restrictions on effluents such as phosphorus and fecal coliform bacteria. Specifically, the permit limited the WRFs’ combined monthly average discharge of fecal coliform to 200 colony-forming units per 100 milliliters of water (“cfu/100ml”) and limited the monthly average discharge of total phosphorus to 0.3 milligrams per liter (“mg/1”).

Concerned about the impact of the proposed Fowler/Shakerag WRFs’ discharge on the quality of the water in the river, on September 16, 2010, UCR filed a petition with the Office of State Administrative Hearings, challenging the EPD-issued permit on six separate grounds and requesting an evidentiary hearing before an ALJ. The County intervened to defend the permit, and thereafter, all three parties filed motions for summary determination, which were argued in a hearing before theALJ. On December 8, 2010, theALJ issued an order on the motions for summary determination, dismissing five of UCR’s six claims. But theALJ ruled that UCR’s claim that the permit violates Georgia’s water anti-degradation rule survived summary determination and scheduled an evidentiary hearing to determine whether, pursuant to the rule, the permit’s discharge-pollutant limits would lower the water quality in the river, and if so, whether such degradation was “necessary to accommodate important economic and social development.”

Subsequently, theALJ conducted a lengthy evidentiary hearing, during which expert witnesses on both sides testified as to whether the permit limits for fecal coliform and phosphorus would degrade the water quality in the river and whether it was economically feasible for the Fowler/Shakerag WRFs to comply with more stringent limits for those two pollutants. Following the conclusion of the hearing, the ALJ issued a final decision, finding that the EPD issued the permit in violation of the anti-degradation rule in that it failed to properly assess whether the level of pollutants in the permitted discharge would result in degradation of the river and, if so, whether such degradation was necessary to accommodate important economic and social development. Consequently, the ALJ remanded the permit to the director of the EPD for re-issuance of the permit with revised monthly average discharge limits of 23 cfu/100 ml for fecal coliform and 0.08 mg/1 for total phosphorus.

Shortly thereafter, Forsyth County and the EPD sought review of the ALJ’s ruling in the Superior Court of Forsyth County. Both the County and the EPD argued, inter alia, that the ALJ erred in its interpretation of the anti-degradation rule, which required a stricter threshold inquiry than the plain meaning of the rule mandates. The superior court agreed, specifically finding that the ALJ erred in interpreting the anti-degradation rule as focusing on the particular limits of certain pollutants in the additional discharge rather than on the capacity of the additional wastewater as a whole. The superior court also ruled that the ALJ exceeded her authority in remanding the permit to the EPD with the directive that it revise the monthly average discharge limits. Subsequently, UCR filed an application for discretionary appeal with this Court, which we granted. This appeal follows.

At the outset, we note that this Court conducts “a de novo review of claimed errors of law in the superior court’s appellate review of an ALJ’s decision.” Furthermore, the interpretation of a statute or regulation is a question of law and, thus, is also reviewed de novo on appeal. With these guiding principles in mind, we now address UCR’s claims of error.

1. UCR contends that the superior court erred in its interpretation of the Georgia water quality anti-degradation rule. Specifically, it argues that the superior court’s interpretation allows water quality degradation that is not necessary to accommodate important economic or social development. We disagree.

In construing agency regulations, we employ the basic rules of statutory construction and look to the plain language of the regulation to determine its meaning. Nevertheless, even if words are apparently plain in meaning, they must not be read in isolation and instead, must be read in the context of the regulation as a whole. Furthermore, “we must defer to an agency’s interpretation and enforcement of its own rules.”

Turning to the statutory scheme and regulation at issue here, pursuant to the Federal Clean Water Act, the individual states are permitted to enact and administer their own water-quality programs, subject to certain federal minimum standards. Toward that end, OCGA § 12-5-21 (a) of the Georgia Water Quality Control Act provides in part that “the water resources of the state shall be utilized prudently for the maximum benefit of the people, in order to restore and maintain a reasonable degree of purity in the waters of the state and an adequate supply of such waters . .. .” And OCGA § 12-5-30 mandates that any person owning or operating a facility that discharges a pollutant from a point source into the waters of the State must obtain an NPDES permit prior to any such discharge. In Georgia, the Board of Natural Resources (the “Board”) is the agency responsible for promulgating rules and regulations governing the administration of the NPDES. And pursuant to that responsibility, the Board promulgated a rule pertaining generally to anti-degradation of water-quality standards, Ga. Comp. R. & Regs. r. 391-3-6-.03, as well as a separate rule pertaining to effluent limits for discharge permits, Ga. Comp. R. & Regs. r. 391-3-6-.06. Finally, the responsibility for administering and enforcing the NPDES program in the State falls to the EPD.

The specific issue for determination by the ALJ in the case sub judice was whether the NPDES permit granted to Forsyth County’s Fowler/Shakerag WRFs violated the Georgia water quality anti-degradation rule. That rule, in relevant part, provides:

Where the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the division finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the division’s continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located.

In its order granting in part and denying in part the County’s motion for summary determination, the ALJ construed Ga. Comp. R. & Regs. r. 391-3-6-.03 (2) (b) (ii) such that the

EPD, as part of its anti-degradation review, was required to assess whether the level of pollutants in the permitted discharge would result in degradation of the receiving water, and if so, whether such degradation was “necessary to accommodate important economic and social development.”

Then upon finding that the EPD failed to comply with the rule, the ALJ further ruled that a genuine issue of fact remained as to whether “the pollutant levels set forth in the Fowler/Shakerag permit represent a necessary degradation of water quality based on an analysis of the technical and economic feasibility of alternative treatment levels, or whether such degradation is unnecessary.” Thereafter, following the evidentiary hearing, the ALJ concluded that the permit’s specific pollutant levels were not necessary.

We agree with the superior court that the ALJ erred as a matter of law in construing the anti-degradation rule in such a manner. Contrary to the ALJ’s interpretation, the plain language of the rule only requires a determination of whether lower water quality generally is necessary to accommodate economic or social development. The language does not require a permit-specific analysis of whether the exact effluent limits for fecal coliform and phosphorus are necessary. In fact, such an interpretation renders Ga. Comp. R. & Regs, r. 391-3-6-.06, which specifically establishes numeric effluent limits for wastewater discharge, meaningless and should thus be avoided. Rather, the proper interpretation of Ga. Comp. R. & Regs, r. 391-3-6-.03 (2) (b) (ii), which adheres to the rule’s plain language and does not render Rule 391-3-6-.06 superfluous, is that it requires a determination as a threshold matter whether any new or expanded discharge should be allowed into a high quality body of water. Given the rule’s plain meaning, as well as the deference to be afforded to an agency’s interpretation of its own rules, the superior court did not err in determining that the ALJ erroneously interpreted the Georgia anti-degradation rule.

2. UCR contends that the superior court erred in treating EPD’s 1997 guidance document regarding anti-degradation implementation procedures as if it was a Board-promulgated rule and in directing the ALJ to apply the procedures on remand. We agree.

In support of its contention that the superior court erroneously viewed the 1997 implementation procedures as rules, UCR notes, inter alia, that the court referred to those procedures as “codified.” The County responds that the superior court’s order demonstrated the court’s awareness of the distinction between promulgated rules and internal agency procedures when it stated that “[t]he implementation procedures provided guidance to the EPD in the EPD’s implementation of the rules.” And both the County and the EPD further argue that the court used the term “codify” to mean “to arrange or systematize” as opposed to “reduce to code.”

OCGA § 50-13-4 of the Georgia Administrative Procedure Act details the procedures an agency must follow in order to adopt new rules and regulations. Failure to comply with these procedures will invalidate a rule. And while statements concerning the internal management of an agency, which do not affect private rights, and statements of interpretations are not considered to be formal rules and are not subject to formal rulemaking procedures, here, the superior court elevated the status of the implementation procedures to that of a formal rule when it held that “[t]he ALJ, on remand, shall apply the antidegradation review standard as codified in the EPD’s implementing procedures____” In doing so, despite the fact that those procedures were never promulgated pursuant to the requirements mandated by OCGA § 50-13-4, the superior court erred. Accordingly, we reverse that aspect of the superior court’s order.

3. UCR also contends that the superior court erred in failing to follow the Supreme Court of Georgia’s controlling decision in Hughey v. Gwinnett County. We disagree.

In Hughey, our Supreme Court interpreted the water quality anti-degradation rule as requiring that a permittee (1) show that degradation is necessary for social or economic development and (2) utilize the highest and best practicable level of wastewater treatment under existing technology. However, in 2004 when Hughey was decided, the rule read as follows:

Those waters in the State whose existing quality is better than the minimum levels established in standards on the date standards become effective will be maintained at high quality; with the State having the power to authorize new developments, when it has been affirmatively demonstrated to the State that a change is justifiable to provide necessary social or economic development; and provided further that the level of treatment required is the highest and best practicable under existing technology to protect existing beneficial water uses. Existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected. All requirements in the Federal Regulations, 40 C.F.R. 131.12, will be achieved before lowering of water quality is allowed for high quality water.

Dissatisfied with the outcome in Hughey, in November 2005 (nearly one year after our Supreme Court’s decision was issued), the Georgia DNR, with United States EPA approval, amended the rule, and the “highest and best practicable under existing technology” language, upon which the Supreme Court’s decision relied, was removed. The Hughey decision, therefore, focused on a substantially different rule, and has little, if any, bearing on this matter. Accordingly, UCR’s contention that the superior court erroneously ignored binding precedent from the Supreme Court of Georgia lacks merit.

4. Finally, UCR contends that the superior court erred in finding that the ALJ exceeded her authority by ordering the director of the EPD to revise the permit in accordance with wastewater-effluent limits indicated in the ALJ’s final decision. Again, we disagree.

OCGA § 50-13-41 (b) provides in part that “[a]n administrative law judge shall have all the powers of the referring agency with respect to a contested case.” Pursuant to OCGA § 50-13-2 (1), agency is defined as “each state board, bureau, commission, department, activity, or officer authorized by law expressly to make rules and regulations or to determine contested cases____’’And within Georgia’s environmental statutory scheme, it is the Board of Natural Resources, and not the EPD or its director, that promulgates regulations and determines contested regulatory cases. Given these circumstances, in challenges to the actions of the director of the EPD, the referring administrative agency is the Board of Natural Resources and not the EPD. However, only the director of the EPD is authorized to issue NPDES permits. Accordingly, the ALJ exceeded her authority in ordering the director of the EPD to revise the permit limits.

Decided November 14, 2012

Smith, Gambrell & Russell, Andrew M. Thompson, for appellant.

Samuel S. Olens, Attorney General, Isaac Byrd, Deputy Attorney General, John E. Hennelly, Assistant Attorney General, King & Spalding, Patricia T. Barmeyer, Lewis B. Jones, for appellees.

Judgment affirmed in part and reversed in part.

Miller, P. J., and Ray, J., concur.

       Although fecal coliform bacteria are not per se harmful, they suggest the presence of pathogenic bacteria, viruses, and protozoan commonly found in fecal matter.

       Phosphorus, itself, is not toxic, hut excessive levels may result in eutrophication, i.e., rapid algal growth, which may result in the formation of cyanobacteria or other harmful toxins, and oxygen depletion, which can trigger fish kills.

        See OCGA § 12-2-2 (c) (2) (A) (“Any person who is aggrieved or adversely affected by any order or action of the director shall, upon petition to the director within 30 days after the issuance of such order or the taking of such action, have a right to a hearing before an administrative law judge of the Office of State Administrative Hearings . .. .”).

        See Ga. Comp. R. & Regs. r. 391-3-6-.03 (2) (b) (ii).

       See OCGA § 5-6-35 (a). No questions of jurisdiction have been raised by the parties in this case. Regardless, if this Court finds that it has no jurisdiction over an appeal, ‘‘it has the authority to dismiss the appeal on its own motion.” Coastal Marshlands Prot. Comm. v. Altamaha Riverkeeper, Inc., 304 Ga. App. 1, 3 (695 SE2d 273) (2010) (punctuation omitted). Under OCGA § 50-13-20, judicial review on appeal to one of the appellate courts of this State is limited to final orders. Here, based on our holding in Coastal Marshlands Prot. Comm. v. Center for a Sustainable Coast, 286 Ga. App. 518, 520 (1) (649 SE2d 619) (2007), we find that the superior court’s order was an appealable final judgment under OCGA § 50-13-20. And while, based on Hughey v. Gwinnett County, 278 Ga. 740, 740-41 (1) (609 SE2d 324) (2004), we have doubts about the soundness of the jurisdictional decision in Center for a Sustainable Coast, such doubts are not reason enough to revisit that decision in this case. See Benefield v. Tominich, 308 Ga. App. 605, 613 (708 SE2d 563) (2011) (Blackwell, J., concurring duhitante) (“As a general principle, the application of the doctrine of stare decisis is essential to the performance of a well-ordered system of jurisprudence.” (punctuation omitted)).

        Coastal Marshlands Prot. Comm. v. Altamaha Riverkeeper, Inc., 315 Ga. App. 510, 511 (726 SE2d 539) (2012); see Center for a Sustainable Coast, 286 Ga. App. at 521 (2).

       See Adventure Outdoors, Inc. v. Bloomberg, 307 Ga. App. 356, 358 (1) (705 SE2d 241) (2010).

        Pfeiffer v. Dep’t of Transp., 250 Ga. App. 643, 646-47 (2) (551 SE2d 58) (2001); see also Walker v. Dep’t of Transp., 279 Ga. App. 287, 292 (2) (a) (630 SE2d 878) (2006).

        Pfeiffer, 250 Ga. App. at 647 (2).

        Walker, 279 Ga. App. at 292 (2) (a); see Bentley v. Chastain, 242 Ga. 348, 350-51 (1) (249 SE2d 38) (1978) (noting that “agencies provide a high level of expertise and an opportunity for specialization unavailable in the judicial or legislative branches”).

        See 33 U.S.C. § 1313.

        See OCGA § 12-5-21 (a).

        See OCGA § 12-5-30 (a).

        See OCGA § 12-5-23 (a) (1) (C), (J).

        See OCGA § 12-5-23 (b) (3), (o) (15); OCGA § 12-5-30.

       Ga. Comp. R. & Regs. r. 391-3-6-.03 (2) (b) (ii) (emphasis supplied).

        See Ne. Ga. Cancer Care, LLC v. Blue Cross & Blue Shield of Ga., 315 Ga. App. 521, 526 (1) (a) (726 SE2d 714) (2012) (noting that this Court “must endeavor to give each part of the statute meaning and avoid constructions that make some language mere surplusage or meaningless” (punctuation omitted)).

        See Walker, 279 Ga. App. at 292-93 (2) (a).

       See The Compact Oxford English Dictionary 281 (2d ed. 1991) (defining “codify” as, inter alia, “to reduce to a general system; to systematize”).

        See OCGA § 50-13-4.

        See Walker, 279 Ga. App. at 294 (2) (c).

       See OCGA§ 50-13-2 (6) (D); see also Ga. Oilmen’s Ass’n v. Dep’t of Revenue, 261 Ga.App. 393, 400 (582 SE2d 549) (2003).

        See Pruitt Corp. v. Ga. Dep’t of Cmty. Health, 284 Ga. 158, 160 (2) (664 SE2d 223) (2008) (holding that agency’s interpretation of a term contained in an internal manual was not to be afforded deference because the manual was not a duly-enacted statute, rule, or regulation); Ga. Dep’t of Med. Assistance v. Beverly Enters., 261 Ga. 59, 60 (2) (401 SE2d 499) (1991) (holding that agency publication containing policies and procedures for nursing home services was not a “rule” as that term is defined by the Administrative Procedure Act); see also OCGA § 50-13-4.

       278 Ga. 740 (609 SE2d 324) (2004).

        Id. at 742 (3).

       Former Ga. Comp. R. & Regs. r. 391-3-6-.03 (2) (b) (2002) (emphasis supplied).

        See former Ga. Comp. R. & Regs. r. 391-3-6-.03 (amended Nov. 27, 2005).

        See Hughey, 278 Ga. at 743 (3) (b) (holding that “the ALJ’s own factual findings contradict its conclusion that the permit properly required Gwinnett County to utilize the ‘highest and best practicable level of treatment under existing technology.’ ” (punctuation omitted)).

        See Ga. Comp. R. & Regs. r. 391-3-6-.03 (2) (b) (ii).

        See OCGA § 12-5-23 (a) (1); OCGA § 12-5-31 (o) (1).

        See OCGA § 12-2-2 (c) (2) (A) (“Any person who is aggrieved or adversely affected by any order or action of the director [of the EPD] shall, upon petition to the director within 30 days after the issuance of such order or the taking of such action, have a right to a hearing before an administrative law judge of the Office of State Administrative Hearings assigned under Code Section 50-13-40 and acting in place of the Board of Natural Resources.”).


author: Branch, Judge.

text:
    A12A1098, A12A1099.
    RBC REAL ESTATE FINANCE, INC. v. WINMARK HOMES, INC. et al. (two cases).
    (736 SE2d 117)
   Branch, Judge.

These companion cases arise from a trial court’s denial of a petition to confirm the foreclosure sales of two parcels of land in Smyrna. Case No. A12A1098 concerns 14 unimproved residential lots owned by respondent Winmark Homes, Inc. and sold on the courthouse steps for $750,000. Case No. A12A1099 concerns six townhouses from the same subdivision, also owned by Winmark, and sold for $1,460,000. The trial court refused to confirm the sale of the 14 lots on the grounds that the petitioning creditor, RBC Real Estate Finance, Inc., had failed to provide notice as required by OCGA § 44-14-162.2 and had failed to show that the properties were sold for fair market value. The trial court refused to confirm the sale of the six townhouses on the ground that the property description did not satisfy the requirements of OCGA § 9-13-140 (a). The trial court declined to order a resale in either case. We affirm in Case No. A12A1098 because there was some evidence at the confirmation hearing to support the trial court’s determination that the 14 lots did not sell for fair market value. We reverse and remand with direction in Case No. A12A1099 because the sale satisfied applicable notice and advertisement requirements and because uncontradicted evidence showed that the six townhouses sold for at least fair market value.

In a confirmation of a foreclosure sale, “[t]he trial court sits as the trier of fact, and its findings of fact and conclusions of law have the effect of a jury verdict.” (Footnote omitted.) Wilson v. Prudential Industrial Properties, 276 Ga. App. 180 (1) (622 SE2d 890) (2005). “[W]e do not determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court’s judgment.” (Punctuation and footnote omitted.) Id. at 181 (1). It follows from these premises that “we will not overturn a trial court’s decision regarding confirmation of a foreclosure sale if there is any evidence to support the decision.” (Footnote omitted.) Id. at 180-181 (1).

So viewed, the record shows that in 2007, Winmark executed two security deeds and a note for more than $3.8 million in exchange for loans from RBC for the purpose of developing the Smyrna properties. David Jenkins and his development company guaranteed the note in writing. After Winmark defaulted on its loan payments, RBC notified Winmark, Jenkins and the development company that it was accelerating payment and that its efforts to obtain a deficiency judgment would culminate in foreclosure sales to be held on October 6, 2009, and December 1, 2009. On October 6, the six townhouses were sold to RBC, the only bidder, for $1,460,000; on December 1, the 14 lots were sold to RBC, the only bidder, for $750,000.

RBC petitioned the trial court to confirm both sales. At the hearing held on August 15, 2011, RBC’s principal witness, a real-estate appraiser, testified in detail about the value of both properties. The appraiser valued the 14 lots at $840,000 (more than the price paid at foreclosure) under a sales-comparison approach and at $650,000 (less than the price paid at foreclosure) under a discounted-cash-flow approach. He then opined that the fair market value of the 14 lots was $750,000 — the price offered by RBC at the foreclosure sale. As to the six townhouses, the appraiser testified that the $1,460,000 paid by RBC for the six townhouses was “above market value,” which he estimated to be $1,340,000. The respondents presented no evidence at the hearing.

Case No. A12A1098

On appeal from the trial court’s denial of confirmation as to the 14 lots, RBC argues that (1) OCGA § 44-14-162.2 did not require notice of the sale to respondents but, in any event, such notice was actually provided; and (2) the evidence as to fair market value did not support the denial of confirmation. We disagree.

1. OCGA § 44-14-161 provides:

(a) When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.
(b) The court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.
(c) The court shall direct that a notice of the hearing shall be given to the debtor at least five days prior thereto; and at the hearing the court shall also pass upon the legality of the notice, advertisement, and regularity of the sale. The court may order a resale of the property for good cause shown.

(Emphasis supplied.)

As we have already noted, we will affirm a trial court’s decision on whether to confirm a foreclosure sale if it is supported by any evidence. Here, the trial court heard a range of evidence as to the fair market value of the 14 lots, including that they were worth $840,000 rather than the $750,000 paid by RBC, and was entitled to credit some of this evidence, but not all of it, based on its determination of the credibility of the appraiser and the reliability of his methods of valuation. Because the evidence was thus sufficient to sustain the trial court’s decision not to confirm the foreclosure sale on the ground that RBC had not paid fair market value, we affirm that decision as to the 14 lots. OCGA § 44-14-161 (b) (trial court “shall not confirm [a foreclosure] sale unless it is satisfied that the property so sold

brought its true market value”); Resolution Trust Corp. v. Morrow Auto Center, 216 Ga. App. 226, 227-229 (1), (2) (454 SE2d 138) (1995) (trial court did not abuse its discretion in refusing confirmation and denying a resale when a creditor had failed to prove that it had sold the foreclosed property for fair market value).

As to the 14 lots, then, we need not reach the question of notice, and RBC has not asserted that the trial court erred in refusing to order a resale. See OCGA § 44-14-161 (c) (trial court denying confirmation may order a resale “for good cause shown”). We therefore express no opinion on these issues.

Case No. A12A1099

RBC argues that the trial court erred when it denied confirmation of the foreclosure sale as to the six townhouses because (1) RBC paidatleastfairmarketvaluefortheproperty;(2)OCGA § 44-14-162.2 did not require notice of the sale to respondents but, in any event, such notice was actually provided; and (3) RBC complied with the advertising requirements of OCGA §§ 44-14-162 and 9-13-140, even though the advertisement for the sale listed seven residences rather than the six actually offered and sold.

2. As a preliminary matter, we note the trial court’s acknowledgment that RBC paid at least fair market value for the six townhouses. This fact alone cannot save the proceedings, however, if either of the remaining grounds on which Winmark attacked the sale has merit. See McPherson v. McPherson, 307 Ga. App. 548, 550 (1) (705 SE2d 314) (2011) (an appellate court will affirm a trial court’s decision “if it is right for any reason raised below”) (citation omitted). We therefore begin by considering whether RBC met the foreclosure statutes’ applicable notice and advertisement requirements.

3. The gravamen of Case No. A12A1099 is whether the trial court erred when it denied confirmation on the ground that RBC had not complied with the foreclosure statutes’ notice requirements. OCGA § 44-14-162.2 provides in relevant part:

(a) Notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. Such notice shall be in writing, shall include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor, and shall be sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address or to such other address as the debtor may designate by written notice to the secured creditor. . . .

Before amendment effective July 1, 2012, OCGA § 44-14-162.3 provided:

(a) The notice requirement of Code Section 44-14-162.2 shall apply only to the exercise of a power of sale of property all or part of which is to be used as a dwelling place by the debtor at the time the mortgage, security deed, or lien contract is entered into.
(b) No waiver or release of the notice requirement of Code Section 44-14-162.2 shall be valid when made in or contemporaneously with the security instrument containing the power of nonjudicial foreclosure sale; but, notwithstanding the requirements of Code Sections 44-14-162.1 [through] 44-14-162.4, a subsequent quitclaim deed in lieu of foreclosure shall be valid and effective as such.

Construing OCGA § 44-14-162.3 (a) prior to the 2012 amendment, which deleted that subsection of the statute, this Court held that “to establish [a] debtor’s right to notice, the debtor must be one who used the property as a residence at the time he acquired the status of debtor.” Ray v. Atkins, 205 Ga. App. 85, 88 (2) (421 SE2d 317) (1992). As a real estate development concern, Winmark did not argue or show that it occupied or planned to use any of the six townhouses at issue “as a dwelling place” at the time it executed the security deed in favor of RBC. See Funderburke v. Kellet, 257 Ga. 822, 824 (2) (364 SE2d 845) (1988) (in absence of evidence that a space used as either a florist shop or lawyer’s office could be used as a dwelling place, a trial court was justified in concluding that the property was exempt from the notice requirements of OCGA § 44-14-162.2). The provisions of OCGA § 44-14-162.3 (b) have no application because the terms of subsection (a) independently exempt RBC from providing notice. It follows that, according to the terms of the version of OCGA § 44-14-162.3in effect at the time of the proceedings below, the notice requirements of OCGA § 44-14-162.2 did not apply to the sale of the six townhouses. Ray, supra at 88-89 (natural person who never resided in foreclosed property and never intended to use it as her dwelling place was not entitled to actual notice under OCGA § 44-14-162.2); Stepp v. Farm & Home Life Ins. Co., 222 Ga. App. 257, 259 (3) (474 SE2d 108) (1996) (notice requirements of OCGA § 44-14-162.2 were not applicable to a company’s foreclosure of unimproved lots). Accordingly, the trial court erred when it reached the contrary conclusion.

4. As the trial court noted, uncontradicted evidence at the confirmation hearing showed that RBC paid “at least” fair market price for the six townhouses. The trial court held, however, that the advertisement of the foreclosure sale of the six townhouses was “defective as a matter of law because it advertised the sale of seven” rather than six of them. On the basis of this perceived error, the trial court declined to reach the factual question whether the incorrect advertisement had chilled bidding at the sale, such that a fair market price was not obtained there.

Appellees have cited no authority for invalidating a foreclosure sale where the only error alleged is that the advertisement references an incorrect number of units for sale. OCGA § 44-14-162 (a) provides in relevant part that a foreclosure sale is not valid “unless the sale shall be advertised and conducted at the time and place and in the usual manner of the sheriff’s sales in the county in which such real estate or a part thereof is located.” Under OCGA § 9-13-140 (a), judicial sales must be advertised according to certain requirements. Such an advertisement

shall give a full and complete description of the property to be sold, making known the names of the plaintiff, the defendant, and any person who may be in the possession of the property. In the case of real property, such advertisement shall include the legal description of such real property and may include the street address of such real property, if available, but provided that no foreclosure shall be invalidated by the failure to include a street address or by the insertion of an erroneous street address.

(Emphasis supplied.) However, this Court has held that a defect in an advertisement “will prevent confirmation only if the factfinder determines [that] those defects ‘chilled’ bidding and caused an inadequate selling price.” (Citations omitted.) Southeast Timberlands v. Security Nat. Bank, 220 Ga. App. 359, 360 (2) (469 SE2d 454) (1996). Likewise, in Shantha v. West Ga. Nat. Bank, 145 Ga. App. 712 (244 SE2d 643) (1978), we noted that “not every irregularity or deficiency [in the advertisement] will void the sale” and that a trial court’s inquiry at a confirmation hearing should be limited to the value of the real estate on the date of sale. Id. at 712. In making this determination, the trial court may examine the fairness of the technical procedures used, but “only for the purpose of making sure that the sale was not chilled and the price bid was in fact market value.” (Emphasis supplied.) Id.; see also Shingler v. Coastal Plain Production Credit Assn., 180 Ga. App. 539, 540 (2) (a) (349 SE2d 785) (1986) (an advertisement’s omission of a consent order lifting a bankruptcy’s automatic stay provisions produced only “a question of fact whether [the omission] affected a fair exercise of the power of sale and caused chilling of the sales price”) (citation and punctuation omitted). Most recently, in Dan Woodley Communities v. Suntrust Bank, 310 Ga. App. 656 (714 SE2d 145) (2011), we affirmed a trial court’s confirmation of a foreclosure sale despite the sale advertisement’s inclusion of several condominium units already sold in the legal description of the property when a debtor did not contest that the remaining units were sold for fair market value. Id. at 657-659.

Decided November 14, 2012.

Burr & Forman, Kwende B. Jones, for appellant.

Simon H. Bloom, Stephanie A. Everett, Ariel D. Zion, for appellee.

Under these authorities, we conclude that the trial court erred when it held that this advertisement’s listing of seven rather than six townhouses for sale was defective because the description served as an adequate means of identifying the parcels sold and because there is no evidence that those defects chilled bidding or caused an inadequate selling price. In fact, the trial court’s order noted that RBC sold the townhouses “for at least [their] true market value,” thereby refuting any contention that the advertisement’s error actually chilled bidding on them. We therefore reverse the denial of confirmation as to the sale of the six townhouses and remand with direction that the trial court enter an order confirming the results of that sale.

Judgment affirmed in Case No. A12A1098. Judgment reversed and case remanded with direction in Case No. A12A1099.

Miller, P. J., and Ray, J., concur.

       See Ga. L. 1981, p. 834, § 2; Ga. L. 2002, p. 415, § 44; Ga. L. 2009, p. 614, § 2 (SB 141). For the 2012 amendments, see Ga. L. 2012, p. 1079, § 1 (SB 333). Neither party has asserted that the 2012 statute applies to this hearing, which was held in August 2011.