author: SMITH, Presiding Judge.

text:
    A11A0831.
    SMITH v. THE STATE.
    (716 SE2d 549)
   SMITH, Presiding Judge.

Christopher Smith was charged with armed robbery and possession of a firearm during the commission of a crime. Pursuant to a negotiated plea agreement, Smith pled guilty to robbery by intimidation and was sentenced as a first offender to 15 years with the first 10 years to be served in confinement. Three weeks later, Smith moved to withdraw his guilty plea on the ground that he did not understand the terms of the plea agreement or the consequences of his plea. The trial court denied Smith’s motion, and he now appeals. We affirm.

When a defendant challenges the validity of his guilty plea, the State must demonstrate that the defendant intelligently and voluntarily entered the plea. Rocha v. State, 287 Ga. App. 446, 448-449 (2) (651 SE2d 781) (2007).

It may do so by either (1) showing on the record of the plea hearing that the defendant understood the rights he was waiving and the consequences of his plea, or (2) filling a silent record with extrinsic evidence that affirmatively shows the plea was knowing, intelligent, and voluntary. Acting as the factfinder, the trial court exercises its discretion in resolving a motion to withdraw a guilty plea, and we will not disturb its ruling absent a manifest abuse of that discretion.

(Citation, punctuation and footnotes omitted.) Blackmon v. State, 297 Ga. App. 99 (1) (676 SE2d 413) (2009).

Smith asserts that he believed his sentence under the First Offender Act required only probation and that he would not serve time in prison. If he had “correctly perceived the situation,” he claims he would not have pled guilty. He contends that his trial counsel informed him prior to the plea that he would not be eligible for first offender treatment, and that when he received his sentence under the First Offender Act, “he thought he was getting probation . . . rather than confinement.”

The record reveals that before entering the plea, Smith signed a “Petition to Enter Guilty Plea” listing the rights he was waiving by pleading guilty. He also signed a “Memorandum of Plea Agreement” which provided that his sentence would be “20 years with the first 10 years in confinement.” At the hearing on the plea, the State announced at the beginning of the hearing that the negotiated plea “would be a sentence of 20 years to serve 10 in confinement, the balance on probation.” And the trial court engaged in the standard colloquy concerning whether Smith understood the consequences of the guilty plea.

When the court asked Smith if he had had enough time to go over the plea petition and the facts and circumstances of the case with his counsel, Smith responded that he had. Smith answered affirmatively when asked if he heard the details of the plea bargain as outlined at the beginning of the hearing and if he understood his sentence under the First Offender Act would be 20 years with the first 10 to be served in confinement. Smith indicated that he understood his rights and that he was entering the plea freely and voluntarily and had not been influenced by any force, threats, intimidation or promises.

At the hearing on Smith’s motion to withdraw the plea, Smith testified that he misunderstood the plea, that he “wasn’t even really paying attention,” and that he thought he was “going to go home on probation” as a first offender. He stated further that he understood “most” of what the trial court asked him during the plea hearing. On cross-examination, Smith acknowledged that he remembered the prosecutor announcing that the negotiated sentence would be 20 years with 10 to serve in confinement and remembered being asked if he understood the rights he was waiving by entering the plea, but explained that “it was just like so many big words.” Smith stated that he did not remember being asked if he made the plea freely and voluntarily, but did remember the court explaining to him the sentence based upon the plea bargain.

Smith’s trial counsel testified that she had several conversations with Smith about the State’s plea offer. She stated that prior to the plea, Smith believed that if he received first offender treatment, “that would mean he would just get out of jail. And we had a conversation about that where I explained that that was not what first offender meant; that that was not going to be available to him.” Trial counsel explained that when she was told that Smith could in fact be sentenced as a first offender, she explained to him “the difference between first offender probation and regular probation. But there were no specifics discussed — nothing about confinement ever came up.” She did not recall whether she clarified for Smith that first offender treatment could still include confinement or whether Smith was still operating under the mistaken belief that first offender treatment meant he would receive only a sentence of probation.

On cross-examination, however, trial counsel stated that the State’s plea offer never varied from ten years to serve in confinement and that she impressed that upon Smith on more than one occasion. She explained that she tried to correct Smith’s misunderstanding of first offender treatment and that she had multiple conversations with Smith concerning possible parole following the confinement portion of the sentence. Counsel stated further that she discussed with Smith the “Memorandum of Plea Agreement” providing for ten years of confinement, and that Smith signed the agreement in her presence.

Under the record presented here, the trial court was authorized to find that Smith understood the plea agreement. See Ransom v. State, 293 Ga. App. 651, 653 (667 SE2d 686) (2008) (trial court authorized to resolve factual issue against defendant who thought plea agreement involved no confinement). Any discrepancies between Smith’s testimony at the hearing on the motion to withdraw and the plea hearing presented credibility issues for the trial court to resolve. See id.; Blackmon, supra, 297 Ga. App. at 100 (1). The trial court therefore did not abuse its discretion in denying Smith’s motion to withdraw his plea.

Decided August 24, 2011.

Thomas J. Killeen, Ryan J. Swingle, for appellant.

Kenneth W. Mauldin, District Attorney, Kristopher M. Bolden, Assistant District Attorney, for appellee.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

       The charge of possession of a firearm during the commission of a crime was nolle prossed.

       The trial court later corrected Smith’s sentence to reflect the offer by the State of 15 years with 10 years to be served in confinement.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A11A1172.
    PHILPOT v. THE STATE.
    (716 SE2d 551)
   BARNES, Presiding Judge.

Tairon Cavada Philpot repeatedly stabbed the victim during a dispute in a store parking lot. A jury rejected her defense of justification and found her guilty of aggravated battery and aggravated assault. The trial court subsequently denied her motion for a new trial. On appeal, Philpot argues that the trial court erred in admitting two photographs of the victim’s bandaged face because they were purportedly irrelevant, duplicative, and highly prejudicial. She further argues that her trial counsel was ineffective for failing to request a jury charge on the use of force in the defense of habitation under OCGA § 16-3-23. For the reasons discussed below, we affirm.

“On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict.” Smith v. State, 279 Ga. App. 211 (630 SE2d 833) (2006). So viewed, the evidence showed that on the evening of October 30, 2008, the female victim, along with her sister and other family members, went shopping for a Halloween costume for her son at a store in DeKalb County. The victim left the store and was walking back through the parking lot toward her car when a sport utility vehicle began pulling out of a parking space, nearly hitting her. The vehicle belonged to Philpot, who was riding in the passenger seat while her sister drove.

Following the near accident, the victim hit the back window of the sport utility vehicle with her hand and began yelling at Philpot and her sister. Philpot, who had rolled down the front passenger side window, called out, “[Djon’t hit my car.” The victim then approached the passenger window, and a heated verbal altercation ensued between the two women. Philpot got out of the vehicle and continued to argue with the victim. As they argued, Philpot repeatedly told the victim, “I got something for you.”

The victim’s sister, who had walked ahead of the victim back to their own car, came back to see what was happening when she overheard yelling back and forth. At her sister’s urging, the victim began walking away from the altercation back to her own car. Likewise, Philpot’s sister convinced Philpot to start walking back to their vehicle.

As the victim was walking away, she spat on the ground. Philpot yelled, “[Y]ou just spit at me?” The victim responded, “Take it how you want.” Philpot then ran toward the victim with a knife. The victim was unarmed. Philpot repeatedly stabbed the victim as they stood in the parking lot, cutting her in the face, neck, and the back of one of her arms. The victim ran around another parked car to get away from Philpot. After seeing the victim’s face covered with blood, Philpot got back into her vehicle and drove away with her sister.

The victim was transported to the hospital, where she received a total of 55 stitches to close her wounds. The victim has permanent scars caused by the wounds inflicted by Philpot.

Based upon the tag number of the sport utility vehicle that had been provided to them, two detectives went to Philpot’s home later that night. She spoke with the detectives after being advised of her rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). Philpot admitted that she had stabbed the victim after she “lost it,” and she led the detectives to the knife which she had placed in her carport.

1. The victim, her sister, and one of the detectives assigned to the case testified on behalf of the State at trial. Their testimony was more than sufficient to authorize a rational jury to find Philpot guilty beyond a reasonable doubt of aggravated battery and aggravated assault and to reject her affirmative defense of justification. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See OCGA §§ 16-5-21 (a) (2); 16-5-24 (a).

2. Philpot argues that the trial court erred in admitting two photographs of the victim that depicted bandages on her face and neck during her hospitalization. She contends that the photographs were irrelevant because they did not demonstrate the location or severity of the victim’s wounds, and that they were duplicative of other properly admitted photographs. As such, Philpot maintains that the probative value of the photos was outweighed by their improper prejudicial effect. We are unpersuaded.

“The admission of photographic evidence is within the discretion of the trial court.” Smith, 279 Ga. App. at 213 (2). And “[pjhotographs which are material and relevant to any issue are admissible even though they may be duplicative and inflame the jury.” (Citation and punctuation omitted.) Boddy v. State, 265 Ga. 498, 499 (2) (458 SE2d 630) (1995). Here, contrary to Philpot’s assertion, the two photographs of the victim’s bandaged face and neck were material and relevant to show the extent and severity of the injuries that she suffered, and the trial court thus was well within its discretion in deciding to admit them. See Stokes v. State, 204 Ga. App. 586, 586-587 (1) (420 SE2d 84) (1992). See also Lacey v. State, 288 Ga. 341, 345 (4) (b) (703 SE2d 617) (2010) (photographs of victim in hospital after attack were directly relevant and admissible in aggravated assault trial); Brown v. State, 258 Ga. App. 78, 81 (3) (573 SE2d 110) (2002) (evidence regarding the effects of the injury on the victim were relevant in aggravated assault trial).

3. Philpot also argues that she was entitled to a new trial because her trial counsel rendered ineffective assistance. She maintains that her trial counsel was deficient in failing to request a jury instruction on the use of force in defense of habitation under OCGA § 16-3-23 because there was evidence that her use of the knife was in reaction to an attack by the victim upon her vehicle in the parking lot. We disagree.

The two-prong test for determining the validity of a claim of ineffectiveness of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency. If the defendant cannot satisfy either of the two prongs of the Strickland test, his ineffective assistance claim fails.

(Citation and punctuation omitted.) Martinez v. State, 303 Ga. App. 166, 171-172 (4) (692 SE2d 766) (2010). In reviewing an ineffective assistance claim on appeal, “we accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, while we independently apply the legal principles to the facts.” Presley v. State, 307 Ga. App. 528, 529 (1) (705 SE2d 870) (2011).

Applying these guidelines, we conclude that the trial court did not err in denying Philpot’s motion for new trial on the ground of ineffective assistance. While slight evidence will support the giving of a jury instruction, Lewis v. State, 292 Ga. App. 257, 264 (2) (663 SE2d 721) (2008), there was no evidence in this case to support an instruction on defense of habitation pursuant to OCGA § 16-3-23. Timing is critical to the application of the defense of habitation: “Where there is no evidence that the victim was attempting to enter or attack the habitation at the time he was injured by the defendant, the defense of habitation is not available.” (Emphasis supplied.) Coleman v. State, 286 Ga. 291, 298 (6) (687 SE2d 427) (2009). See Kendrick v. State, 287 Ga. 676, 679-680 (3) (699 SE2d 302) (2010). That is the situation here. The uncontroverted evidence showed that Philpot stabbed the victim after she spat on the ground while both women were standing in the store parking lot; there was no evidence that the victim was attempting to unlawfully enter or attack Philpot’s vehicle at the time of the stabbing. Under these facts, there could be no reasonable belief that stabbing the victim was “necessary to prevent or terminate the other’s unlawful entry into or attack upon a motor vehicle,” and thus no basis for an instruction on defense of habitation. Kendrick, 287 Ga. at 680 (3).

Because there was no basis for an instruction on defense of habitation, Philpot’s trial counsel did not perform deficiently in failing to request it. Coleman, 286 Ga. at 298 (6) (a). See Goings v. State, 265 Ga. App. 296, 299 (4) (593 SE2d 751) (2004) (noting that “the failure to request a meritless jury instruction cannot demonstrate ineffective assistance of counsel”). Accordingly, the trial court did not err in finding that Philpot had failed to carry her burden of proving ineffective assistance of counsel. Coleman, 286 Ga. at 298 (6) (a). Compare Benham v. State, 277 Ga. 516 (591 SE2d 824) (2004) (trial counsel was ineffective for failing to request an instruction on defense of habitation, where there was evidence that the defendant slashed the victim with a box cutter while the victim was attacking the defendant through a car window).

Decided August 24, 2011.

Hall & Hirsh, Daniel M. Hirsh, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       Alternatively, we note that any objection to the admission of the photographs on the basis of materiality and relevance has been waived by Philpot for failure to assert that basis of objection at trial. See Morrison v. State, 256 Ga. App. 23, 25 (2) (567 SE2d 360) (2002).

       OCGA § 16-3-23 provides:
      A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
      (1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence;
      (2) That force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or
      (3) The person using such force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony.
      “Habitation” is statutorily defined to include a “motor vehicle.” OCGA § 16-3-24.1.


text:
    A11A1203.
    BILLINGSLEA v. THE STATE.
    (716 SE2d 555)
   BARNES, Presiding Judge.

Derrick Billingslea appeals the trial court’s denial of his motion to dismiss four counts of armed robbery against him for an alleged violation of his right to due process because he was not arrested until more than six years after the crime. For the reasons that follow, we affirm.

In October 2002, four women at a beauty salon were robbed at gunpoint by two men, one of whom was wearing a mask. An arrest warrant was issued for Billingslea in November 2002. Billingslea was arrested for the crime in January 2009, and was indicted on four counts of armed robbery and released on bond in February 2009. In April 2009 his public defender made an entry of appearance and filed numerous motions. The State served Billingslea with discovery shortly afterward and with supplemental discovery in October 2009. Meanwhile, in September 2009, Billingslea filed a motion to suppress the victims’ identification of him through a photographic lineup, which the trial court denied in April 2010 following oral argument. In August 2010, Billingslea filed a notice of alibi as to the date and time of the offense. Upon Billingslea’s request, on October 22, 2010, the trial court ordered the East Point Police Department to deliver the latent prints lifted from the crime scene and the comparison prints taken from Billingslea to the Georgia Bureau of Investigation (“GBI”) Crime Lab by October 26, 2010, and ordered the Crime Lab to complete the comparison of the prints by October 29, 2010.

In November 2010, Billingslea filed a motion to dismiss and plea in bar asking the court to issue an order discharging and acquitting him of the armed robbery charges. He argued that the six-and-a-half-year delay between the arrest warrant in November 2002 and his arrest in January 2009 violated his right to due process and a speedy trial. The court heard argument on the motion in December 2010.

At the motion hearing, the investigating police officer testified that he had investigated a reported armed robbery of four victims by two gunmen at a beauty salon in October 2002. Two of the victims identified Billingslea from a photographic lineup as one of the robbers, and the officer obtained a warrant for Billingslea’s arrest in November 2002, which was entered in the Georgia Crime Information Center (“GCIC”) database and maintained at the police department’s information office. The officer testified that he unsuccessfully attempted to locate Billingslea through his girlfriend (now wife) and his mother in January 2003, but then had no more active leads to follow.

A technician lifted latent fingerprints from the front door and desk at the crime scene, which were submitted to the GBI Crime Lab with comparison prints of two victims and Billingslea, which the police department had on file from an unrelated arrest in November 2002. The crime lab reported that, while the latent prints were of value for comparison purposes, the other three sets of comparison prints were not, and asked the department to submit new ones from all three subjects. The investigating officer made arrangements for the victims to come to the police station so he could obtain new comparison prints but they did not show up. Due to the heavy caseload and the loss of an officer, the last entry he made in the file was in January 2003, although he spoke to one of the victims about coming in after Billingslea was arrested in 2009.

The original investigating officer was promoted, and a different detective was assigned to follow up on obtaining new fingerprint comparisons in January 2009. A police department evidence technician who had received the latent prints back from the crime lab in July 2007 testified that the new detective had checked out the latent prints in January 2009, presumably to take them to the crime lab. When the technician was asked to locate the prints in October 2010, they were missing, and the detective who had checked them out no longer worked for the police department.

Billingslea also argued that a witness was missing due to the passage of time. The robbers took the victims’ cell phones, and someone made a call from one victim’s phone a few hours after the robbery. The original detective interviewed the person who received that call, who said she did not know Billingslea. The person showed the detective a picture of her son, and the detective ascertained he was not Billingslea. At the hearing, Billingslea’s investigator testified that he had gone to the address listed for the person who had received the call and left business cards but no one ever responded. He also checked with the apartment building’s leasing office and that person was not listed on any leases in the apartment building, discovered that the phone number in the police report had been assigned to someone else, and searched for the witness in Lexis/Nexis and other search engines.

Billingslea testified that he had lived in several locations since 2002, alternately with his wife or his mother, and spent about a year at a rehabilitation facility for his marijuana addiction. He did not know a warrant was out for his arrest on these charges, even though the police at one point had stopped him and reviewed his identification.

The trial court denied Billingslea’s motion to dismiss and plea in bar in January 2011, and Billingslea appealed. He argues that the trial court erred in denying his motion because the lengthy passage of time between the crime and his arrest and indictment violated his right to due process. He asserts that the delay substantially prejudiced his ability to defend himself because the police had lost the set of latent fingerprints taken from the crime scene and a witness “crucial to the defense” had disappeared. He also contends that the State deliberately delayed his arrest to gain a tactical advantage.

1. Both the United States and Georgia Constitutions grant defendants in criminal cases a right to a speedy trial, U. S. Const. Amend. VI; 1983 Ga. Const. Art. I, Sec. I, Par. XI (a), and a delay following arrest or indictment may violate that right. Brewington v. State, 288 Ga. 520, 521 (1), (2) (705 SE2d 660) (2011). But different considerations apply when the delay occurs before an arrest or indictment.

The Sixth Amendment does not guarantee a right to a speedy arrest. However, an inordinate delay between the time a crime is committed and the time a defendant is arrested or indicted may violate due process guarantees under the Fifth and Fourteenth Amendments. To find a due process violation where a delay precedes arrest and indictment, courts must find 1) that the delay caused actual prejudice to the defense, and 2) that the delay was the product of deliberate action by the prosecution designed to gain a tactical advantage.

(Citations and emphasis omitted.) Wooten v. State, 262 Ga. 876, 878 (2) (426 SE2d 852) (1993) (no due process violation from delay between 1978 murder and preliminary hearing and 1990 indictment because no prejudice to defense or intent to gain tactical advantage). Both elements — actual prejudice and deliberate delay to gain a tactical advantage — must be established to find a due process violation. Jackson v. State, 279 Ga. 449, 451 (2) (614 SE2d 781) (2005) (no actual prejudice and thus no due process denial despite 24-year lapse between murder and indictment). In this case, Billingslea has established neither element.

2. Billingslea contends that his defense was prejudiced by the delay of more than six years between the crime and his arrest because during that time the latent prints from the crime scene were lost and a witness “crucial to the defense” could no longer be located.

Passage of time, whether before or after arrest, may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself. But this possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper context. Possible prejudice is inherent in any delay, however short; it may also weaken the Government’s case.

United States v. Marion, 404 U. S. 307, 321 (92 SC 455, 30 LE2d 468) (1971).

“[T]he applicable statute of limitations is the primary guarantee against bringing overly stale criminal charges.” (Citation and punctuation omitted.) Marion at 321-322. In this case, Billingslea was arrested and indicted for armed robbery, a noncapital felony, within the applicable seven-year statute of limitation. OCGA §§ 16-8-41 (a), 17-3-1 (c). The seven-year statute of limitation establishes our legislature’s “assessment ] of relative interests of the State and the defendant in administering and receiving justice,” and protects defendants from being tried for offenses “when the basic facts may have become obscured by the passage of time.” Id. at 322-323.

In this case, Billingslea cannot show actual prejudice due to the passage of time. As to the missing fingerprint evidence, at worst, a match between the latent fingerprints and Billingslea’s fingerprints would have inculpated him. At best, as the trial court noted, a failure to match the prints would have been neutral to both the defense and the State, because it proved neither Billingslea’s presence nor his absence. While Billingslea argues that the latent prints might have established “the real perpetrator” if they had matched the prints of another offender in the government’s database, the mere existence of this possibility does not establish actual prejudice. State v. Madden, 242 Ga. 637, 638 (250 SE2d 484) (1978) (defendant’s speculation that if indicted sooner he might have been able to establish an alibi insufficient to show actual prejudice). Further, the absence of the prints for comparison purposes does not affect Billingslea’s alibi defense, and would “hinder[ ] the prosecution as much as [the] defendant.” Holton v. State, 280 Ga. 843, 845 (2) (632 SE2d 90) (2006) (no prejudice to defense from 20-year gap between arrest and indictment, despite missing evidence and death of several witnesses).

Billingslea similarly has not established that the absence of the witness would substantially prejudice his defense. The witness, who denied knowing Billingslea, simply owned the account associated with that telephone number at that time, a number that someone called from a victim’s stolen cell phone two hours after the robbery. “To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case.” (Citation and punctuation omitted.) State v. Madden, 242 Ga. at 637. The circumstances in this case do not rise to a denial of due process that would warrant dismissing the indictment.

As Billingslea failed to show that his defense was prejudiced by the delay between the commission of the crime in 2002 and his arrest in 2009, the trial court did not abuse its discretion in denying his motion to dismiss.

3. As Billingslea must show both that his defense was prejudiced and the State deliberately delayed his arrest to obtain a tactical advantage to establish a due process violation, his failure to satisfy the first element “obviates any need to consider the reasons for the delay.” Jackson, 279 Ga. at 451 (2). We note, however, that in arguing that the State deliberately delayed arresting him to gain a tactical advantage, Billingslea mischaracterizes the detective’s testimony at the motion hearing. The detective did not testify that he deliberately delayed arresting Billingslea to gain a tactical advantage. After testifying that once an arrest warrant was entered into the GCIC computer, it remained there until the arrestee was located, the detective was asked if he had decided not to pursue Billingslea because he thought the evidence against him was insufficient. The detective replied, “I felt that there was minimal probable cause. But again I wanted to strengthen my case and the only way I could be able to strengthen my case was with him.” The detective then explained that the warrant was not executed for more than six years because he was unable to locate Billingslea and had no active leads. In other words, the detective did not testify that he delayed the arrest to strengthen the State’s case; he testified that he delayed the arrest because he could not find Billingslea, and that finding him would strengthen the case.

To obtain a dismissal, an accused must show “both of the elements of a viable claim for violating his due process rights, and [Billingslea] showed neither.” Jones v. State, 284 Ga. 320, 322 (1) (667 SE2d 49) (2008) (four-year delay between murder and indictment did not violate due process because no prejudice to defendant or attempt to gain tactical advantage). Accordingly, the trial court did not err in denying Billingslea’s motion to dismiss the indictment for a violation of his right to due process based on the delay between the crime and his arrest.

Decided August 24, 2011.

Angela B. Clarke, for appellant.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellee.

Judgment affirmed.

Adams and Blackwell, JJ., concur.


author: McFadden, Judge.

text:
    A11A1252.
    JTH TAX, INC. v. FLOWERS.
    (716 SE2d 559)
   McFadden, Judge.

The issue in this case is whether, pursuant to OCGA § 9-11-67, post-judgment interest abated on funds deposited into the trial court’s registry pending the outcome of an appeal. Because all of the requirements of OCGA § 9-11-67 were not satisfied, we hold that post-judgment interest did not abate.

In November 2008, Joan Flowers obtained a judgment against JTH Tax, Inc., d/b/a Liberty Tax Service, for breach of contract, fraud, punitive damages and attorney fees in the amount of $686,190.50. Three weeks later, JTH filed a motion for leave to deposit funds with the court pursuant to OCGA § 9-11-67, stating that it was not contesting the judgment entered on Flowers’ breach of contract claim, that it wanted to satisfy that portion of the judgment immediately and that it did not want to continue to accrue post-judgment interest on that undisputed amount. A week later, the trial court entered a consent order granting JTH’s § 9-11-67 motion. The order provided, inter alia, that JTH could deposit into the court registry $93,146.26, plus all post-judgment interest accrued until the date of the deposit; that the deposit was subject to withdrawal, in whole or in part, at any time upon request by Flowers; and that the accrual of interest on the deposited amount shall abate. Pursuant to that order, JTH deposited $93,567.42 into the court registry on December 29, 2008.

As to the judgment entered on the fraud, punitive damages and attorney fees claims, JTH moved for judgment notwithstanding the verdict. The trial court denied the motion, and JTH filed a notice of appeal in April 2009. Flowers subsequently filed a motion for supersedeas bond pursuant to OCGA § 5-6-46 (a), requesting that JTH be required to post a bond sufficient to secure the amount of the judgment being appealed. In its response to the motion for super-sedeas bond, JTH stated that it wanted to deposit funds with the court as security. The trial court subsequently entered a consent order, providing that JTH could deposit $620,719.64 with the court, that upon the deposit the supersedeas on appeal would continue in effect, and that the funds would be held in the court registry until the remittitur in the appeal is returned to the trial court. The order further provided that if, under various circumstances pertaining to the appeal, JTH satisfied the judgment in full, the funds plus accrued interest shall be returned to JTH; but if JTH “does not meet these conditions, Plaintiff Joan Flowers may apply to this Court for an order disbursing these funds to satisfy whatever judgment remains after the final disposition of the appeal.” In September 2009, JTH deposited the funds into the court registry, noting on its check stub that the $620,719.64 deposit was for a bond.

Flowers subsequently prevailed on appeal, with this court affirming the judgment of the trial court. See JTH Tax, Inc. v. Flowers, 302 Ga. App. 719 (691 SE2d 637) (2010). After the remit-titur was filed in the trial court, a consent order was entered which allowed Flowers to take down the funds held in the court registry. Although the parties agreed that the December 2008 deposit of $93,567.42 was made pursuant to OCGA § 9-11-67 and thus tolled the accrual of post-judgment interest as to that deposit, JTH claimed that the accrual of interest was also abated as to the September 2009 deposit of $620,719.64. Flowers disagreed and moved for the trial court to resolve the issue. The trial court entered an order finding that the second deposit of funds had not been made pursuant to OCGA § 9-11-67 and therefore post-judgment interest continued to accrue as to that deposit. JTH appeals.

Under OCGA § 7-4-12 (a), interest on a judgment accrues at an annual rate equal to the prime rate, as published by the Federal Reserve System, plus three percent. Such post-judgment interest, intended to deter post-judgment delay and bring finality to judgments, accrues until the date the judgment is paid and is not abated by an appeal of the judgment. Security Life Ins. Co. v. St. Paul Fire &c. Ins. Co., 263 Ga. App. 525, 529 (2) (588 SE2d 319) (2003), rev’d in part on other grounds, 278 Ga. 800 (606 SE2d 855) (2004); Great Southern Midway v. Hughes, 223 Ga. App. 643 (478 SE2d 400) (1996). However, a judgment debtor may abate the accrual of interest by complying with OCGA § 9-11-67, which provides:

In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing to be held by the clerk of the court, subject to withdrawal, in whole or in part, at any time thereafter upon order of the court, upon posting of sufficient security. Where the thing deposited is money, interest thereupon shall abate.

But “[ajbsent conformity with OCGA § 9-11-67, sums deposited in the court will not be entitled to the abatement of interest. [Cit.]” Sacha v. Coffee Butler Service, 215 Ga. App. 280, 281 (1) (450 SE2d 704) (1994).

In the instant case, JTH’s September 2009 deposit did not fully comply with the terms of OCGA § 9-11-67. One of the plain terms of that Code section is that the money deposited be subject to withdrawal, in whole or in part, at any time. Threatt v. Forsyth County, 250 Ga. App. 838, 845 (2) (552 SE2d 123) (2001). See also United States v. Midwest Constr. Co., 619 F2d 349, 353-354 (5th Cir. 1980) (construing similar FRCP 67 to require that in order to stop accrual of interest defendant must make money available to plaintiff without imposing conditions on its acceptance). The consent order authorizing the September 2009 deposit, unlike the consent order allowing the December 2008 deposit, did not make that money subject to withdrawal at any time. Rather, it expressly provided that the funds deposited were to be held by the trial court until the return of the remittitur from this court, that the funds would be returned to JTH upon the satisfaction of the judgment in full, and that Flowers could apply to the trial court for an order disbursing the funds if JTH did not meet certain conditions and “after the final disposition of the appeal.” Thus, as the trial court found, the consent order “specifically prevent[ed] the Plaintiff from access to the funds.” Compare Sacha, supra (deposits authorized by court order and agreed upon by parties, and requirements of OCGA § 9-11-67 “were otherwise satisfied”).

Because the funds deposited in September 2009, unlike those deposited in December 2008, were not subject to withdrawal by Flowers during the pendency of the appeal, the requirements of OCGA § 9-11-67 were not complied with and interest thereon did not abate. See Threatt, supra (interest did not abate where funds not subject to withdrawal); Great Southern Midway, supra at 644 (post-judgment interest not tolled where, pending appeal, plaintiff unable to satisfy judgment with funds paid into court). Accordingly, the trial court did not err in ruling that interest continued to accrue on the funds deposited in September 2009. See Gunnin v. Parker, 198 Ga. App. 864, 865-866 (1) (403 SE2d 822) (1991) (where OCGA § 9-11-67 not fully complied with, trial court correctly awarded post-judgment interest).

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.

Decided August 24, 2011.

Smith, Gambrell & Russell, Edward H. Wasmuth, Jr., for appellant.

Smith, Welch, Webb & White, John P. Webb, Andrew J. Gebhardt, for appellee.


author: Mikell, Judge.

text:
    A11A1285.
    METRO LAND HOLDINGS INVESTMENTS, LLC et al. v. BANK OF AMERICA, N.A.
    (716 SE2d 566)
   Mikell, Judge.

This case arises from the applications for confirmation of four foreclosure sales filed pursuant to OCGA § 44-14-161 by Bank of America, N.A. (“the Bank”) against Metro Land Holdings Investments, LLC (“Metro Land”), JFD Builders, LLC and Loomis E. Deavours (“Appellants”), who guaranteed the underlying promissory notes. Appellants appeal the trial court’s final order confirming the sale of the four properties contending that the third property was not purchased at its true market value (as required by OCGA § 44-14-161 (b)). For the reasons that follow, we affirm.

In confirming a nonjudicial foreclosure sale under OCGA § 44-14-161, the trial 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.” The trial judge in a confirmation proceeding “sits as the trier of fact, and its findings and conclusions have the effect of a jury verdict.” Thus, “witness credibility and the weight of the evidence proffered by the parties at a confirmation hearing are to be judged by the trial court, and not this Court on appeal.” For this reason, we will not disturb the trial court’s decision if there is any evidence to support it, and we view the evidence in the light most favorable to the trial court’s judgment.

So viewed, the record shows that in 2006, Metro Land executed four promissory notes in favor of the Bank. Each promissory note was secured by lots of undeveloped property in the Summerlake and Bramlett Station subdivisions in Gwinnett County, as evidenced by the Deeds to Secure Debt and Security Agreements. Metro Land defaulted on the notes, and the Bank elected to declare the outstanding debt immediately due and payable. The Bank then foreclosed on the properties under power of sale provisions contained in the deeds to secure debt. On July 7, 2009, the four properties were sold at auction at separate foreclosure sales in Gwinnett County. In the third foreclosure sale, the Bank, as lienholder, purchased a parcel of eight undeveloped residential lots in the Summerlake subdivision in Gwinnett County for $233,850.

On July 29, 2009, the Bank reported the sales to a judge in the Superior Court of Gwinnett County and applied for confirmation of the four sales pursuant to OCGA § 44-14-161. Following a hearing, the superior court confirmed the sales. This appeal follows.

Appellants’ sole enumeration of error is that the trial court erred in finding that the third property sold for its true market value because the written appraisal of the Bank’s expert exceeded the amount bid by the Bank at the foreclosure sale.

At the hearing, the Bank presented the expert testimony of Scott R. Tonneson, an MAI-designated independent real estate appraiser, on the issue of true market value. Appellants called no witnesses and provided no expert testimony to rebut Tonneson’s testimony as to valuation. Tonneson testified that he utilized a “Development Approach” in appraising the property based on its use as residential lots. According to Tonneson, this methodology requires a two-step process: first, the retail value of each lot is determined, and second, appropriate expenses and absorption rates are deducted from the retail value to arrive at the true market value.

Tonneson’s written appraisal valued the eight lots comprising the third property at $237,551 as of July 7, 2009, an amount higher than the $233,850 foreclosure sale price. However, he stated at the hearing that he had revised his opinion subsequent to drafting the written appraisal because data he later obtained indicated that residential properties in the area were experiencing decreased sale prices and absorption rates during the last six months of 2009, and that this subsequent data was relevant to his valuation of the third property as of the sale date. Tonneson’s revised opinion of the true market value of the third property is approximately $234,000 or $29,200 per lot. Tonneson explained that the written appraisal reflected an inflated true market value because a review of subsequent sales in the area revealed a downward trend in the value of undeveloped lots. Tonneson explained that his review of these comparable bulk sales and absorption rates revealed that his “value conclusion [in his written appraisal] was . . . very high at the date of value” because there was “minimal demand and . . . excess supply” of residential lots in that area. Tonneson then went on to opine that, based on this downward trend, the fair market value of the third property as of the date of the foreclosure sale could be as little as $25,000 per lot, or $200,000 for the third property as a whole.

On appellate review, “the test is not whether this court would have accepted appellant’s expert appraisals as the most reliable and accurate, but whether the record contains any evidence to support the findings of the trial court that the property brought its true market value at the foreclosure sale.” Further, “Georgia law has long held that the trier of fact may believe or disbelieve all or any part of the testimony of any witness.” Tonneson “provided the court with the basis for his opinions. As it appears that his opinion was not based on sheer speculation, an appellate court cannot second guess any methodology utilized to reach the opinion.” Appellants did not provide any evidence or expert testimony to rebut Tonne-son’s appraisal, and the trial court was entitled to believe Tonneson’s expert opinion that the fair market value of the third property as of the date of the foreclosure sale was lower than his initial written appraisal because of a downward trend in the real estate market. Given the foregoing, the record contained sufficient evidence to permit the trial court to determine that the Bank’s winning bid at the foreclosure sale brought at least the true market value of the property.

Decided August 24, 2011.

King & Spalding, Philip R. Green, Schreeder, Wheeler & Flint, John A. Christy, for appellants.

Troutman Sanders, Thomas E. Reilly, Claiborne B. Smith, for appellee.

Judgment affirmed.

Smith, P. J., and Doyle, J., concur.

       The Bank originally filed applications for confirmation of five foreclosure sales, but withdrew its application as to the first property at the hearing.

       True market value “is the price which the property will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who wishes to buy, but is not under a necessity to do so.” (Citation and punctuation omitted.) Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258, 259 (1) (424 SE2d 889) (1992).

       OCGA § 44-14-161 (b).

       (Footnote omitted.) The Hudson Trio, LLC v. The Buckhead Community Bank, 304 Ga. App. 324, 325 (696 SE2d 372) (2010).

       (Footnote omitted.) Atreus Communities of America v. KeyBank Nat. Assn., 307 Ga. App. 716, 717 (706 SE2d 107) (2011).

        Trefren v. Freedom Bank of Ga., 300 Ga. App. 112, 114 (684 SE2d 144) (2009).

        Fayette Promenade v. Branch Banking &c. Co., 258 Ga. App. 323, 324 (574 SE2d 319) (2002).

       The eight lots comprising the third property at a valuation of $29,200 per lot equals a total value of $233,600, which is less than the $233,850 foreclosure sale price.

       (Citation and punctuation omitted.) Blue Marlin Dev. v. Branch Banking &c. Co., 302 Ga. App. 120, 122 (1) (690 SE2d 252) (2010).

       (Citation, punctuation and footnote omitted.) Fuller v. Flash Foods, 298 Ga. App. 217, 219 (679 SE2d 775) (2009).

       (Punctuation and footnote omitted.) Fayette Promenade, supra at 327.

        BPI Constr. Co. v. Collective Fed. Sav. &c., 186 Ga. App. 324,325 (367 SE2d 269) (1988). Compare Belans v. Bank of America, 303 Ga. App. 654, 656 (2) (694 SE2d 725) (2010) (reversing confirmation where appraiser did not testify and court relied solely on statements by counsel).


text:
    A11A1298.
    BOUTWELL v. THE STATE.
    (716 SE2d 569)
   SMITH, Presiding Judge.

Jennifer Boutwell appeals from the trial court’s denial of her plea in bar based on double jeopardy. She contends that the State was barred from prosecuting her for felony theft by taking following her guilty plea on an accusation charging her with misdemeanor theft by taking. For the following reasons, we affirm.

The record reveals that on September 8, 2010, Boutwell was charged in the State Court of Fayette County with misdemeanor theft by taking: “on or about the 20th day of May, 2010 by unlawfully taking a 1976 yellow gold class ring and a gold in color chain having a value of less than Five Hundred Dollars ($500.00) and being the property of [the victim]” in violation of OCGA § 16-8-2. See OCGA § 16-8-12 (a) (1) (misdemeanor except where property exceeds $500 in value). She pled guilty to this charge on October 4, 2010. On October 20, 2010, Boutwell was charged in the Superior Court of Fayette County with felony theft by taking. The indictment states that she “on and about the 3rd day of May 2010, did unlawfully take a gold herringbone style necklace, the property of [the victim], with a value greater than $500.” The same person was the alleged victim in both cases.

Boutwell filed a plea in bar based on double jeopardy on the ground that the felony theft by taking arose from the same conduct as the misdemeanor theft by taking. Following a hearing, the trial court denied Boutwell’s plea in bar.

[U]nder OCGA § 16-1-7, when several crimes arising from the same conduct are known to the State at the time of trial, the crimes must all be prosecuted in a single action. Otherwise, the procedural double jeopardy protections of OCGA § 16-1-8 (b) forbid the State from prosecuting in a second action crimes that were omitted from the first prosecution.

(Footnotes omitted.) Prater v. State, 273 Ga. 477, 481 (4) (545 SE2d 864) (2001). “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.” (Citations, punctuation and footnote omitted.) Nicely v. State, 305 Ga. App. 387, 389 (1) (699 SE2d 774) (2010).

OCGA § 16-1-8 (b) (1) provides:

A prosecution is barred if the accused was formerly prosecuted for a different crime or for the same crime based upon different facts, if such former prosecution . . . [resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime of which the accused could have been convicted on the former prosecution, is for a crime with which the accused should have been charged on the former prosecution (unless the court ordered a separate trial of such charge), or is for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution or unless the crime was not consummated when the former trial began.

Boutwell argues that there should have been a single prosecution because the assistant state court solicitor-general was aware of all the facts giving rise to the superior court charge of felony theft by taking. But Boutwell’s double jeopardy claim fails here in any event because the subsequent prosecution did not involve the same conduct. “A crime ‘should have been charged’ within the meaning of OCGA § 16-1-8 (b) (1) if it falls within the scope of OCGA § 16-1-7 (b).” (Citations and punctuation omitted.) Davis v. State, 287 Ga. App. 535, 536 (652 SE2d 177) (2007). OCGA § 16-1-7 (b) provides:

If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution except as provided in subsection (c) of this Code section.

Decided August 24, 2011.

Emily Bass, Walker L. Chandler, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.

(Emphasis supplied.) And “the phrase ‘the same conduct’ has been used interchangeably with the phrase ‘the same transaction.’ However, the term ‘the same conduct’ does not mean merely the same type of conduct, i.e., the identical crime committed in different transactions, in different locations, or at different times.” (Citations omitted; emphasis in original.) Davis, supra, 287 Ga. App. at 536; see also Morgan v. State, 220 Ga. App. 198, 199 (469 SE2d 340) (1996).

Boutwell was charged in the superior court indictment with taking a different item of a different value from the victim on a different day than the items listed in the state court accusation. See Davis, supra, 287 Ga. App. at 536; see also Summers v. State, 263 Ga. App. 338, 340 (587 SE2d 768) (2003) (“Our courts have found, on the other hand, that multiple counts of burglary or theft by receiving did not arise from the same conduct, even when the stolen property was recovered together in the course of a single arrest, where the defendant burgled several different residences at separate times.” [Cits.]). And “[t]he courts also consider whether evidence of the other offenses could be presented without permitting evidence of the first offense or vice versa.” (Citations and punctuation omitted.) Morgan, supra, 220 Ga. App. at 199. Here, evidence of the felony taking alleged in superior court could be presented without presenting evidence of the misdemeanor takings, and vice versa. See Teal v. State, 203 Ga. App. 440, 443 (2) (b) (417 SE2d 666) (1992).

Because the subsequent felony prosecution did not arise from the same conduct as the former misdemeanor prosecution, OCGA §§ 16-1-7 and 16-1-8 did not apply. The trial court therefore did not err in denying Boutwell’s plea in bar based upon double jeopardy.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

       At the hearing on the plea in bar, the assistant state court solicitor-general testified that the reported value of the missing items as listed in the incident report was “approximately $2[,]700” and that she “knew the amount was over the normal misdemeanor amount.” She stated further that because she “knew the amount was a felony amount,” she contacted the district attorney’s office prior to filing the accusation and was told that there was no felony charge pending against Boutwell.


text:
    A11A1356. A11A1357.
    EAYRS et al. v. WELLS FARGO BANK, N.A. ROYALTY PROPERTIES, LLC et al. v. WELLS FARGO BANK, N.A.
    (716 SE2d 561)
   McFadden, Judge.

This is an appeal of an order confirming the sale at foreclosure of three buildings in a Gwinnett County office park. The appellants argue that the superior court erred by limiting the admission of evidence of the properties’ value to only the value on the date of the foreclosure sale, but they asked for such a limitation. They argue that the superior court erred by considering hearsay evidence, but we presume that the court considered only admissible evidence at this bench hearing. Contrary to the appellants’ argument, there is no indication that the superior court disregarded their expert’s evidence. Further, although the appellants challenge the reliability of certain expert testimony, the expert explained the basis of his opinion, and we cannot second-guess his methodology. Finally, the appellants have failed to show that the repeated advertisement of the foreclosure sale chilled the bidding process. For these reasons, we affirm.

Wells Fargo Bank’s predecessor in interest lent money to Royalty Properties, LLC and Janis Eayrs to purchase the office buildings, and the borrowers granted security deeds to the properties. Ernest Eayrs, Allan Eayrs, William Asma and Janis Eayrs guaranteed Royalty’s obligation, and Ernest Eayrs, Allan Eayrs and William Asma guaranteed Janis Eayrs’s obligation. The appellants defaulted, and Wells Fargo began foreclosure proceedings. Wells Fargo advertised the properties for sale for four weeks in June and July 2010, ultimately resulting in their sale on July 6, 2010. Wells Fargo also had advertised the properties during the months of December 2009, January 2010, February 2010, March 2010 and May 2010. It reported the sales to a judge of the Gwinnett County Superior Court and applied for confirmation. Following a hearing, the superior court issued a confirmation order that included findings of fact and conclusions of law. These appeals followed; we are considering the two appeals together because they raise the same issues, and the superior court resolved the cases in a single order.

1. The appellants argue that the superior court erred by concluding that, under OCGA § 44-14-161 (b), the parties were limited to introducing evidence of the properties’ value on only the date of the foreclosure sale. That statute provides:

The court shall require evidence to show the true market value of the property sold under the powers [contained in security deeds] and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.

At the confirmation hearing, the appellants moved in limine to exclude from evidence Wells Fargo’s property condition report prepared by David Winitt on August 17, 2010. The appellants argued that Winitt had not inspected the properties until three weeks after the July 6 foreclosure sale, and his report therefore was not probative and relevant to the issue of whether the properties brought their true value at the foreclosure sale. Additionally, the appellants asked the court to exclude Wells Fargo’s post-sale appraisal prepared by their expert, Michael Barrow, because it relied on Winitt’s post-sale property condition report. The appellants argued that such evidence was not probative or relevant to the true market value at the date of the foreclosure sale.

The superior court granted the motion to the extent of preventing the introduction of evidence of the properties’ condition post-sale, unless a witness could testify that the same condition existed at the time of the sale. The court ruled that, because Wells Fargo did not intend to call Winitt to testify, the parties could cross-examine Barrow to determine the basis of his opinion. When Wells Fargo pointed out that the date of the appellants’ appraisal was August 18, 2010, weeks after the July 6, 2010, foreclosure sale, the court ruled, “Same thing, the experts will have to give an opinion as to the value of the property on the date of the sale.”

The appellants argue that the superior court “erred in narrowly construing [OCGA § 44-14-161 (b)] by stating that the evidence concerning the true market value of the property must specifically be as of the date of the foreclosure sale, July 6, 2010.” Rather, the appellants contend, evidence of a property’s value before and after the foreclosure sale is admissible. It is true that a superior court may consider a property’s value at times close to the date of sale to arrive at the market value at the time of the sale. See Thompson v. Maslia, 127 Ga. App. 758, 764 (4) (195 SE2d 238) (1972) (“What it may have brought or what it may have been regarded as being worth on the market at times relatively close to the date of sale may be considered as aids in arriving at market value at the time of sale — which is what the court is charged with determining in granting or denying an order of confirmation.”) (emphasis in original). But “[a] party cannot claim error where he himself committed or invited the error.” (Punctuation omitted.) Adamson v. Gen. Elec. Co., 303 Ga. App. 741, 743 (2) (694 SE2d 363) (2010). The appellants specifically argued to the superior court that Wells Fargo’s evidence should be excluded because the condition of the property after the foreclosure sale was not relevant to the true market value at the time of the sale. Therefore, assuming that the superior court erred, the appellants induced the error and cannot complain on appeal. In any event, as discussed below in Division 4, the appellants have not shown that the superior court disregarded their expert’s testimony for valuing the property as of August 18, 2010.

2. The appellants also argue that Barrow’s appraisal was based on Winitt’s property condition report and therefore contained hearsay. But based on the superior court’s ruling, Barrow limited his testimony, which included his opinion of value, to what he had observed before the foreclosure sale — and before Winitt had prepared the condition assessment report. Further, the superior court expressly invited the appellants to cross-examine Barrow about the basis of his opinions to verify that they were not based on Winitt’s report. It also admitted Barrow’s appraisal subject to its ruling on the motion in limine. Moreover, when the superior court sits as the finder of fact, we presume that the superior court “separated admissible evidence from inadmissible evidence and considered only the former in reaching its judgment.” Watson v. State, 274 Ga. 689, 691 (3) (558 SE2d 704) (2002).

3. The appellants argue that the superior court erred in admitting Wells Fargo’s appraisal, which included the condition assessment report, in spite of its rulings excluding testimony based upon that report. The superior court overruled the appellants’ objection to the admission of the appraisal and held that the defects would go to its weight, not its admissibility. We presume that the superior court, as factfinder, separated the admissible evidence from the inadmissible evidence and based its judgment on the admissible evidence. Watson, supra.

4. The appellants assert that Wells Fargo violated a stipulation the parties entered concerning the appellants’ expert. In that stipulation, Wells Fargo “waive[d] any and all objections to the notice, taking of and use at trial of the deposition of Craig Butterfield as an expert witness by and for the [appellants] in this foreclosure confirmation proceeding.” The appellants contend that Wells Fargo violated the stipulation when, in response to the court’s ruling on the appellants’ motion in limine, it pointed out to the court that Butterfield’s appraisal was dated August 18, 2010, and in its written closing argument in which it asserted that the superior court should not consider Butterfield’s appraisal report and deposition testimony since he gave his opinion of value as of August 18.

This argument lacks merit. First, the superior court judge stated at the hearing that she would read Butterfield’s deposition “from start to finish.” The appellants point to nothing indicating that the superior court did not consider the deposition and its attached appraisal. Second, the appellants did not raise this issue before the superior court. “It is well established that this Court is limited to considering only those grounds raised and ruled on below by the trial court and may not consider a basis for appeal not presented at the trial level.” (Punctuation omitted.) Capital Land USA v. Mitsubishi Motors Credit &c., 308 Ga. App. 71, 73 (1) (706 SE2d 590) (2011).

5. The appellants argue that Barrow’s testimony was based upon speculative methodology and stale data and thus did not establish the properties’ fair market value. They argue that Barrow’s written appraisal report was based on hearsay, as it was based on Winitt’s property condition report. At the hearing, however, Barrow gave his opinion as to the value without taking Winitt’s report into account. The appellants argue that, nonetheless, this testimony was later contradicted and supplemented with his written report, which was admitted into evidence. As noted above, we presume the superior court separated the admissible evidence from the inadmissible evidence and based its judgment on the admissible evidence. Watson, supra.

The appellants argue that Barrow’s use of the capitalization of net income methodology to determine value was speculative because he used the “band of investment method,” which was not based on actual market date. They assert that his analysis of the capitalization of net income was speculative because he arbitrarily picked an equity dividend rate. However, Barrow explained the basis for his methodology and testified about the sources upon which he relied.

The appellants also assert that Barrow’s comparable sales methodology was speculative because he used stale sales and market listings. Noting the difficulty in finding recent sales in the depressed real estate market, Barrow testified that he nonetheless found and used two sales that occurred in 2010, one that occurred in 2009, and three that occurred in mid to late 2008. He also looked at two listings.

We do not judge witness credibility or weigh the evidence, and we will not disturb a superior court’s finding that property sold for its true market value if there is any evidence to support that decision. Atreus Communities &c. v. KeyBank Nat. Assn., 307 Ga. App. 716, 717 (706 SE2d 107) (2011).

[Ajlthough appellants present a serious challenge to the means by which [Barrow] arrived at his opinion as to value, [Barrow] provided the court with the basis for his opinions. As it appears that his opinion was not based on sheer speculation, an appellate court cannot second[-]guess any methodology utilized to reach the opinion. The superior court had sufficient data in evidence upon which it could apply its own knowledge and ideas so as to derive its own opinion as to the market value of the property at the time of the sale.

Decided August 24, 2011.

Seacrest, Karesh, Tate & Bicknese, Edwin A. Tate II, for appellants.

(Punctuation omitted.) The Hudson Trio, LLC v. Buckhead Community Bank, 304 Ga. App. 324, 329 (2) (696 SE2d 372) (2010). See also Statesboro Blues Dev. v. Farmers &c. Bank, 301 Ga. App. 851 (690 SE2d 205) (2010) (superior court was entitled to find expert’s testimony credible and to accept his opinion when he explained why he did not apply an adjustment or discount for remoteness in time for allegedly stale comparable sales).

On appellate review, the test is not whether this court would have accepted appellant’s expert appraisals as the most reliable and accurate, but whether the record contains any evidence to support the findings of the trial court that the property brought its true market value at the foreclosure sale.

(Punctuation omitted.) Hudson Trio, supra at 328 (2). We conclude that some evidence supports the superior court’s findings.

6. The appellants argue that Wells Fargo chilled the foreclosure process by scheduling and cancelling five successive sales over a six-month period. They elaborate that the net effect was that the properties continued to decline in value. Consequently, at the time the property finally sold, the value was lower than it would have been had the property sold in 2009. “The issue in a confirmation proceeding is whether the property sold brought, at the time of the sale sought to be confirmed, its true market value; what the property may have brought or what it may have been regarded as being worth on the market at a time relative to the sale is not controlling.” (Footnote omitted; emphasis in original.) Kong v. Shearson Lehman Hutton Mtg. Corp., 211 Ga. App. 93, 95 (438 SE2d 132) (1993). The appellants have not shown that Wells Fargo’s scheduling and cancel-ling the foreclosure sale caused the properties to bring in less than their fair market value on the date of the sale.

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.

Seyfarth Shaw, Paul M. Baisier, Sara M. LeClerc, Stephanie H. Philips, for appellee.


author: PHIPPS, Presiding Judge.

text:
    A11A1402.
    AZORDEGAN et al. v. EBRAHIMI.
    (716 SE2d 528)
   PHIPPS, Presiding Judge.

This appeal was filed by Kamriz Azordegan (a/k/a Kambiz Azordegan), Farrah H. Azordegan, and Farrah H. Azordegan and Kamriz Azordegan as trustees of the Azordegan Family Trust (collectively, hereinafter, Azordegan). Azordegan contests a superior court’s confirmation of an arbitration award.

In deciding whether to confirm or vacate an arbitration award, a trial court’s role is severely curtailed so as not to frustrate the purpose of avoiding litigation. Unless one of the statutory grounds for vacating an award as set forth in OCGA § 9-9-13 (b) is found to exist, a trial court in reviewing an award is bound to confirm it. Moreover, ... we will not disturb a trial court’s confirmation of an arbitration award unless the existence of any of the statutory grounds is shown.

Because Azordegan has failed to make the required showing, we affirm.

1. As an initial matter, we note the paucity of the record before us. Pertinently, in the notice of appeal, Azordegan stated, “There is no transcript of evidence and proceedings to be filed for inclusion in the Record on Appeal.” Our consideration of the contentions presented by Azordegan — who, as appellant, has the burden to affirmatively show error by the record — is affected by the meagerness of the record.

2. Azordegan maintains that the arbitrator’s award should have been vacated, relying solely on the ground set forth in OCGA § 9-9-13 (b) (3), which provides that the award shall be vacated if the court finds that a party’s rights were prejudiced by “[a]n overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made.” More particularly, Azordegan asserts that the arbitrator’s authority was imperfectly executed because the award failed to set forth certain explicit findings. However, the Georgia “Arbitration Code does not require that an arbitrator enter written findings of fact in support of an award; nor does the Code require an arbitrator to explain the reasoning behind an award.” For that reason, and because of circumstances set forth below, Azordegan has failed to establish that the arbitrator’s execution of his authority was so imperfect that a final and definite award upon the subject matter submitted was not made.

According to Azordegan’s appellate brief, the arbitration resulted from a dispute concerning obligations pursuant to an agency agreement with appellee Noujan Paul Ebrahimi. No agency agreement has been made a part of the appellate record. What is more, the record fails to reveal what issues were presented for specific decision by the arbitrator. The record does reflect that a hearing was held before the arbitrator, who thereafter issued the contested award.

The award recounts that “the arbitrator requested each Party to clearly include ... in its post-closing brief: its claim(s), the issues that must be decided to establish each claim, a summary of evidence supporting each claim, and the relief requested for each claim.” But no such post-closing briefs have been made a part of the appellate record. Moreover, although Azordegan complains that the award does not set forth certain findings, the award recounts further that “the Parties agreed the Arbitrator will prepare a Standard Award (versus a Reasoned Award or Award with Findings of Fact and Conclusions of Law). Accordingly, this Award is a standard award without reasons, findings of fact or conclusions of law.”

The record shows that, upon Azordegan’s application to the superior court to vacate the arbitrator’s award and Ebrahimi’s application to the court to affirm, the superior court conducted a hearing. And in its confirmation order, the court revealed that its ruling was reached “after receiving evidence, argument of counsel and consideration of the entire record.”

Notwithstanding, in accordance with Azordegan’s notice of appeal, no transcript of either the arbitration hearing or the hearing on applications to vacate/confirm the award has been provided to this court.

Decided August 5, 2011

Reconsideration denied August 25, 2011

Mills, Paskert & Divers, Richard J. Storrs, for appellants.

Cohen, Goldstein, Port & Gottlieb, Lee S. Goldstein, for appellee.

Therefore, [the appellants] have failed to carry their burden of establishing by record evidence the statutory ground of [OCGA § 9-9-13 (b) (3)]. The absence of a transcript precludes review of claims of error committed by the arbitrator[ ], thereby necessitating an affirmance of the [superior] court’s refusal to vacate the arbitration award on [said] ground.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

        Humar Properties, LLLP v. Prior Tire Enterprises, 270 Ga. App. 306-307 (605 SE2d 926) (2004) (citations omitted).

       This is the second appearance of this case before this Court. The initial appeal, docketed as Case No. A10A2138, was dismissed. Notably, in that case, the appellants amended their notice of appeal “by deleting the statement that ‘any transcript of evidence and proceedings in its entirety will be filed for inclusion in the Record on Appeal,’ ” and adding the statement, “The record should be submitted to the Court of Appeals without a transcript.” Accordingly, no transcript of evidence was provided to the court with that case.

        Sebby v. Costo, 290 Ga. App. 61, 62 (658 SE2d 830) (2008).

        Greene v. Hundley, 266 Ga. 592, 595 (2) (468 SE2d 350) (1996) (footnote and emphasis omitted).

       Cf., e.g., Cotton States Mut. Ins. Co. v. Nunnally Lumber Co., 176 Ga. App. 232, 234-235 (2) (335 SE2d 708) (1985).

        Humar Properties, LLLP, supra at 308 (citations and punctuation omitted); see Ordner Constr. Co. v. Parkside Crossing, 300, LLC, 276 Ga. App. 753, 754 (1) (624 SE2d 206) (2005) (because there was no transcript of arbitration hearing or detailed findings of fact, appellate court could not find that arbitrator’s award was unlawful and therefore could not conclude that superior court erred in declining to vacate award); Pitt v. Holt Dev., LLC, 269 Ga. App. 441, 442 (604 SE2d 278) (2004); Brown v. Premiere Designs, 266 Ga. App. 432, 434 (597 SE2d 466) (2004) (where absence of a record or transcript precluded review of appellants’ claims of error committed by arbitrator, affirmance of state court’s refusal to vacate arbitration award was necessitated); Sprewell v. Thompson & Hutson, SC, LLC, 260 Ga. App. 312, 315 (3) (581 SE2d 322) (2003) (this court’s decision must be made on record and not upon briefs of counsel).


text:
    A09A1480.
    ATHENS-CLARKE COUNTY BOARD OF TAX ASSESSORS v. NUCI PHILLIPS MEMORIAL FOUNDATION, INC.
    (716 SE2d 578)
    Decided August 25, 2011.
   SMITH, Presiding Judge.

In Nuci Phillips Memorial Foundation v. Athens-Clarke County Bd. of Tax Assessors, 288 Ga. 380 (703 SE2d 648) (2010), the Supreme Court reversed the judgment of this court. We therefore vacate our earlier opinion and adopt the judgment of the Supreme Court as the opinion of this court.

Judgment affirmed.

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

William, C. Berryman, Jr., Amy S. Gellins, for appellant.

Timmons, Warnes & Anderson, James C. Warnes II, for appellee.


text:
    A11A0863.
    LYDE v. THE STATE.
    (716 SE2d 572)
   BARNES, Presiding Judge.

A Glynn County jury convicted Harry Truman Lyde in March 2006 of two counts of aggravated child molestation and two counts of child molestation, and he was sentenced to a total of 30 years to serve. On appeal, Lyde contends that (1) his constitutional right to be present at his trial was violated, and that his counsel was ineffective for waiving his right to be present, and (2) the indictment against him failed to properly allege that the statute of limitation was tolled during the two victims’ minority. For the reasons that follow, the trial court did not err in denying Lyde’s motion for new trial on these grounds.

Lyde was accused of four molestation counts involving two victims. Three counts involved one victim, who was eighteen as of trial. She testified that she, her brother, and her mother lived with Lyde until her mother went into drug rehabilitation two years earlier and the victim went into foster care. Lyde began rubbing her between her legs and having sexual intercourse with her when she was six or seven years old and continued through her sixteenth birthday, until she made an outcry.

The fourth count of the indictment accused Lyde of committing child molestation by placing his hand on the genitals of the second victim, who testified that she was eight or ten when she spent the night with the first victim and awoke to find Lyde on top of her with his hand down her pajama bottoms, rubbing her vagina. He tried to pick her up but she began crying so he left her alone, and she never spent the night there again.

The State gave Lyde notice of its intent to produce similar transaction evidence involving five additional victims, and three of them testified that Lyde had committed acts of molestation against them when they were younger than sixteen. The first similar transaction witness testified that when she was 14 or 15, she fell asleep babysitting for Lyde’s children and awoke with him on top of her, penetrating her vagina with his penis. Another time when she, her mother, and Lyde’s sister stayed at Lyde’s house in New York she awoke to find Lyde performing oral sex on her. The second similar transaction witness testified that when she was nine and lived with Lyde’s mother, Lyde unlatched her bathroom door using a butter knife and touched her vaginal area and buttocks before she escaped from his clutches. The third similar transaction witness testified that as a child she had lived around the corner from Lyde, who was her father’s best friend. She and Lyde’s children played at each other’s houses, and when she was five or six Lyde put his hands between her legs and touched her inappropriately. Another time he pulled her pants down and rubbed his penis between her legs, and twice when sleeping at his house she awoke to find him on top of her, penetrating her.

1. Lyde contends that “the trial court was clearly erroneous when it failed to find that [Lyde’s] trial counsel . . . render[ed] ineffective assistance by improperly waiving [Lyde’s] presence at a critical stage of trial. This constitutional violation is presumed to be harmful,” and thus his conviction must be reversed.

Embodied in the constitutional right to the courts under Art. I, Sec. I, Par. XII of the Georgia Constitution of 1983 is the right of the criminal defendant to be present. . . at any stage of a criminal proceeding that is critical to its outcome if the defendant’s presence would contribute to the fairness of the procedure.

(Citations and punctuation omitted.) Huff v. State, 274 Ga. 110, 111 (2) (549 SE2d 370) (2001).

Lyde’s defense at trial was that his character was good and that the victims and similar transaction witnesses had reputations for being untruthful. After the completion of the direct examination of a defense witness, the trial court excused the jury for “an afternoon recess, a good 15 minutes.” After the jury left the courtroom, the following colloquy transpired:

THE COURT: Does the state need to take something up?
[THE STATE]: I do have a motion, Your Honor.
THE COURT: And does [the witness] need to be on the stand for it?
[THE STATE]: No, sir.
THE COURT: All right. [Witness], you may stand down.
[WITNESS:] Thank you, sir.
(WHEREUPON, the witness leaves the witness stand and the following transpires.)
THE COURT: All right.
[THE STATE]: Your Honor, it’s my —
THE COURT: Are we waiving your client’s presence?
[LYDE’S TRIAL COUNSEL 1]: We will.
[LYDE’S TRIAL COUNSEL 2]: Yes.
[THE STATE]: Your Honor, it’s the state’s position that for some time now the defendant’s character has been placed into issue by the witnesses on the stand, particularly with this last witness as to his service in Vietnam, his work in the community with children, and all the good that he does. At this time, Your Honor, we are asking the Court to make a finding that the defendant’s character has been placed into issue by the defense and to allow the State to proceed accordingly.
THE COURT: All right. Gentlemen?

During the ensuing colloquy, defense counsel strenuously argued that he had not placed Lyde’s character into issue with his questions. The trial court then called a ten-minute recess, and when the proceedings were back on the record the court noted that Lyde was present. Defense counsel moved to strike any portion of the defense witness’s nonresponsive testimony pertaining to Lyde’s good character. The trial court granted the motion to strike, then denied the State’s motion for a finding that Lyde had placed his character into issue. After an unrecorded bench conference, the jury returned to the courtroom, and the trial court instructed that it had granted Lyde’s motion to strike a portion of the witness’s testimony “to the extent that it purported to prove the good character of the defendant.” Thus, the court continued, the jury could consider the witness’s testimony only “to the extent you conclude that it is probative of the issue in this case other than the character of the defendant.”

Lyde argues both that his defense counsel was ineffective for waiving his right to be present during the discussion about the motions and that “this constitutional violation is presumed to be harmful error.” The analysis of a right-to-be-present claim raised directly differs, however, from a right-to-be-present claim raised indirectly “under the aegis of an ineffective assistance of counsel claim.” Peterson v. State, 284 Ga. 275, 280 (663 SE2d 164) (2008). The former requires no showing of harm, while the latter does. Hanifa v. State, 269 Ga. 797, 807 (6) (505 SE2d 731) (1998) (harm is presumed from violation of state constitutional right to be present at all critical stages of trial); Peterson, 284 Ga. at 280 (defendant must show both deficient performance and resulting prejudice to establish ineffective assistance due to violation of right to be present).

In Peterson, our Supreme Court reviewed “the denial of the right to be present solely as an instance of professionally deficient performance by counsel in the context of an ineffective assistance of counsel claim.” Id. The court limited its analysis because it “had already considered and rejected all other claims that Peterson raised or could have raised on direct appeal” and had remanded the case specifically for the trial court to consider the ineffective assistance claims. Id. Thus, while “harmless error review is inapplicable to a pure right-to-be-present claim under the Georgia Constitution raised on direct appeal,” it was applicable to a right-to-be-present claim raised indirectly under an ineffective assistance claim. Id.

Regardless of whether we analyze Lyde’s error directly as a constitutional violation or indirectly through his ineffective assistance claim, however, we must consider whether the discussion between the trial court and counsel for both parties in Lyde’s absence was a “critical stage” of the proceedings at which he had the right to be present, and if so, whether he waived his presence or acquiesced in his absence. Pennie v. State, 271 Ga. 419, 421 (2) (520 SE2d 448) (1999). We need not reach the waiver issue in this case, because the discussion between counsel and the court during the recess was not a critical stage of the trial.

[I]n a prosecution for a felony the defendant has the privilege under the Fourteenth Amendment to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge, . . . [but not] when presence would be useless, or the benefit but a shadow.

Snyder v. Massachusetts, 291 U. S. 97, 105-107 (54 SC 330, 78 LE 674) (1934). “Thus, a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 U. S. 730, 745 (107 SC 2658, 96 LE2d 631) (1987).

As defined by the Supreme Court of Georgia, “a critical stage in a criminal prosecution is one in which a defendant’s rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other way.” (Citation and punctuation omitted.) Huff, 274 Ga. at 111 (2) (no “unequivocal” right to be present during charge conference). For example, “[a] colloquy between the trial judge and the jury is a part of the proceedings to which the defendant and counsel are entitled to be present.” Pennie, 271 Ga. at 421 (2).

Our Supreme Court has held that a defendant’s case was not substantially affected by his absence from bench conferences at which the judge and counsel “discussed legal matters about which [the appellant] would have known very little or nothing, and no witnesses discussed their testimony.” Parks v. State, 275 Ga. 320, 325 (3) (565 SE2d 447) (2002). Because no “reasonably substantial relation” existed between his presence during the conferences and his opportunity to defend against the charges being tried, the Court found no violation of the defendant’s right to be present. Id. See also Woodward v. State, 262 Ga. App. 363, 368 (2) (585 SE2d 687) (2003). Our Supreme Court also has held that a pretrial conference, limited in scope to scheduling, was not a critical stage of the proceedings requiring defendant’s presence. Ferrell v. State, 261 Ga. 115, 122 (12) (401 SE2d 741) (1991).

Lyde argues that he should have been present when his attorney discussed whether evidence of Lyde’s good character had been introduced because he “would have explained to his counsel how important his good character defense was to his liberty and would have vigorously objected to striking this material, essential testimony.” Presumably his argument is that he would have convinced his attorneys to leave in the good character evidence. Lyde testified at the hearing on his motion for new trial that he tried to ask one of his lawyers what the motion to strike was about, but his lawyer “shushed” and silenced him. Lyde argues that having his good character “professed by a powerful member of the Glynn County community, and then watch it be unlawfully ripped away from consideration of the deliberating petit jury in [Lyde’s] absence was devastating to the outcome of [Lyde’s] case.”

Lyde does not raise an ineffective assistance claim regarding his lawyer’s successful motion to strike, which counsel interposed because the prosecutor sought a ruling that would have allowed her to question the defense witnesses about Lyde’s specific bad acts. During the new trial hearing, the State argued that if the court had not granted the motion to strike the good character evidence, the State would have cross-examined the witness about Lyde’s bad acts, which would have included evidence of two similar transactions in addition to the three that had already been introduced.

The issue, however, is not whether trial counsel’s motion to strike constituted ineffective assistance, whether Lyde understood why his lawyer moved to strike the evidence, or whether he could have convinced his lawyer to keep the testimony if he had been there. The issue is whether Lyde’s absence during the discussion violated his due process right to be present during a critical stage of his trial. Lyde was present when his trial counsel made the motion on the record to strike his witness’s good character evidence, and present when the trial court ruled. The only thing Lyde missed was the discussion about whether the testimony constituted good character evidence that opened the door to cross-examination about bad character evidence. As in charge conferences or bench conferences involving purely legal argument, Lyde’s absence during only the discussion of the motions did not violate his due process right to be present during critical stages of the proceedings against him. Barrett v. State, 275 Ga. 669, 671-672 (4) (571 SE2d 803) (2002) (no violation when judge conferred with counsel in defendant’s absence before instructing jury to retire for the evening); Parks, 275 Ga. at 325 (3); Huff, 274 Ga. at 111-112 (2).

Decided August 25, 2011

Accordingly, this enumeration is without merit.

2. Lyde argues that the indictment is fatally flawed because the State failed to plead that the statutes of limitation were tolled. The indictment was returned on November 16, 2005 and alleged that the offenses occurred “on or before December 28, 2003” for acts of aggravated child molestation or child molestation against victims under the age of 16. The applicable statute of limitation for child molestation and aggravated child molestation is either four or seven years. OCGA § 17-3-1. If a victim of child molestation was younger than 16 at the time of the act alleged, the applicable statute of limitation does not begin to run until the victim reaches the age of 16 or the violation is reported to law enforcement, whichever occurs earlier. OCGA § 17-3-2.1 (a) (5). We have held that an indictment alleging the molestation of a child “under the age of 16” sufficiently invoked the statute of limitation tolling provision set forth in OCGA § 17-3-2.1. Tompkins v. State, 265 Ga. App. 760, 765 (2) (c) (595 SE2d 599) (2004), rev’d in part on other grounds, Tompkins v. State, 278 Ga. 857 (607 SE2d 891) (2005); Grizzard v. State, 258 Ga. App. 124, 125-127 (2) (572 SE2d 760) (2002).

Lyde’s appellate counsel, who was also appellate counsel in Tompkins, argues that this holding was wrong. Counsel notes that the State must allege and prove other exceptions to the bar of the statute of limitation. Moss v. State, 220 Ga. App. 150 (469 SE2d 325) (1996). Every indictment that charges child molestation alleges the essential element that the victim was a child under the age of 16, Lyde argues, and in enacting the tolling statute, the legislature must have intended for the State to do more than simply charge an element necessary for the underlying crime. Otherwise, he argues, the tolling provision of OCGA § 17-3-2.1 is superfluous.

The State responds that all four counts of the 2005 indictment aver that the victim was “a child under the age of 16 years” and that the offenses occurred on or before December 2003, thus giving Lyde notice on the face of the indictment that the tolling provision of OCGA § 17-3-2.1 applied and the statute of limitation had not run. We disagree that Tompkins and Grizzard were wrongly decided, and therefore find no error.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

Brian Steel, for appellant.

Jacquelyn L. Johnson, District Attorney, for appellee.


author: MCFADDEN, Judge.

text:
    A11A1268.
    WASHINGTON v. THE STATE.
    (716 SE2d 576)
   MCFADDEN, Judge.

After a bench trial, Robert Washington was convicted of two counts of aggravated battery, possession of a firearm during the commission of a crime and possession of a firearm after having previously been convicted of a felony involving use of a firearm. In sentencing Washington, the tried court ruled, pursuant to subsection (c) of the repeat offender statute, OCGA § 17-10-7, that he is ineligible for parole, because he has three prior felony convictions. Washington appeals, arguing that the trial court erred in sentencing him under OCGA § 17-10-7 (c), because one of his prior felonies was used to prove the charge of possession of a firearm after having previously been convicted of a felony involving a firearm, and thus he argues, pursuant to King v. State, 169 Ga. App. 444 (313 SE2d 144) (1984) and its progeny, that prior felony cannot also be used to enhance his punishment. But King and its progeny do not apply to this case. We therefore affirm.

King applies only when a defendant is sentenced under both the statute that prohibits convicted felons from possessing a firearm and imposing a range of sentences upon those convicted of doing so, OCGA § 16-11-131, and under subsection (a) of OCGA § 17-10-7, the repeat offender statute. Walker v. Hale, 283 Ga. 131 (1) (657 SE2d 227) (2008). Washington was sentenced not under OCGA § 16-11-131, but under OCGA § 16-11-133, which imposes a fixed term of incarceration upon convicted felons who use a firearm in the commission of a crime, and subsection (c) of OCGA § 17-10-7.

OCGA § 16-11-131 prescribes incarceration for one to five years as punishment for possession of a firearm by a convicted felon. OCGA § 16-11-133 imposes a fixed 15-year sentence for use of a firearm by a convicted felon in the commission of a felony.

Subsection (a) of OCGA § 17-10-7 provides that a person previously convicted of a single felony offense must be sentenced to the longest term of incarceration prescribed for any subsequent felony. Subsection (c) of that statute provides that persons with three or more prior felony convictions are, in addition, ineligible for parole.

“King and its progeny stand for the limited proposition that the felony used to convict a defendant of possession of a firearm by a convicted felon [under OCGA § 16-11-131] cannot also be used to enhance the defendant’s punishment as a repeat offender under OCGA § 17-10-7 (a).” Walker v. Hale, 283 Ga. 131 (1) (657 SE2d 227) (2008). The rule set out in King is not founded on the idea that the defendant’s possession of a firearm is “used up” by its consideration under one statute and therefore not available under the other. Rather, the reason for this narrow rule is that to hold otherwise would eviscerate the sentencing range prescribed by the legislature for possession of a firearm by a convicted felon.

[I]f the General Assembly intended that repeat offender punishment pursuant to OCGA § 17-10-7 (a) be applied to possession of a firearm by a convicted felon, then every conviction for that offense could result in a minimum punishment of five years, thus rendering the authorized punishment for the offense of one to five years meaningless.

(Citation and punctuation omitted.) State v. Slaughter, 289 Ga. 344, 346 (711 SE2d 651) (2011).

Therefore, King is applicable in those situations where the defendant has one prior felony conviction and, in a subsequent prosecution, he is convicted of firearm possession by a convicted felon. In such situations, the application of OCGA § 17-10-7 (a) eviscerates the sentencing range of one to five years set forth in OCGA § 16-11-131 because the trial court is forced to impose a five-year sentence.

Id. at 346.

In the instant case, neither OCGA § 17-10-7 (a) nor OCGA § 16-11-131 is involved. Washington was not convicted under OCGA § 16-11-131; he was convicted under OCGA § 16-11-133 (b), which provides that a person who has previously been convicted of a felony involving the use or possession of a firearm and who has on, or within arm’s reach of, his person a firearm during the commission of any felony against or involving the person of another, commits a felony that “shall be punished by confinement for a period of 15 years.” OCGA § 16-11-133 (b) (1). Thus, unlike the one-to-five year sentencing range applicable to a conviction under OCGA § 16-11-131, no sentencing range applies to Washington’s conviction under OCGA § 16-11-133 (b), which instead mandates a 15-year sentence.

Moreover, as noted above, Washington was sentenced pursuant to subsection (c), not subsection (a), of OCGA § 17-10-7. OCGA § 17-10-7 (c) provides that a person convicted of three prior felonies shall, upon conviction for a fourth felony or subsequent felonies, “serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.” As the Supreme Court recently held in Slaughter, supra, the holding in King does not extend to a sentence imposed under OCGA § 17-10-7 (c).

Decided August 25, 2011.

David M. Burns, Jr., for appellant.

Larry Chisolm, District Attorney, Christine S. Barker, Assistant District Attorney, for appellee.

[T]he application of OCGA § 17-10-7 (c) to a defendant who has three prior convictions and, in a subsequent prosecution, is convicted for firearm possession by a convicted felon does not eviscerate the sentencing range set forth in OCGA § 16-11-131. Rather, in that subsection of OCGA § 17-10-7, the tried court still has discretion to sentence a defendant to up to five years for felony firearm possession by a convicted felon. The application of subsection (c) to a conviction under OCGA § 16-11-131 means only that the sentence imposed of not less than one nor more than five years will have to be served without the possibility of parole. Since the sentencing range in OCGA § 16-11-131 is not eviscerated by the application of OCGA § 17-10-7 (c), there is no basis to extend the holding in King to that subsection.

(Citations and punctuation omitted.) State v. Slaughter, supra.

Although the instant case does not involve a conviction under OCGA § 16-11-131, the Supreme Court’s rationale still applies to Washington’s conviction under OCGA § 16-11-133 (b). Indeed, that rationale is even stronger in this case because, as noted above, there is no sentencing range under OCGA § 16-11-133 (b) to be rendered meaningless by the application of OCGA § 17-10-7 (c). Because the application of OCGA § 17-10-7 (c) does not eviscerate any sentencing range and means only that the sentence imposed on Washington will have to be served without the possibility of parole, King and its progeny do not apply to this case. Accordingly, the trial court did not err in sentencing Washington under OCGA § 17-10-7 (c).

Judgment affirmed.

Phipps, P J., and Andrews, J., concur.


text:
    A07A0306.
    FERRARI et al. v. AMERICAN HOME PRODUCTS CORPORATION et al.
    (716 SE2d 590)
    Decided August 26, 2011.

      Lanny B. Bridgers, for appellants.

      Fields, Howell, Athans & McLaughlin, Paul L. Fields, Jr., Alissa C. Malone, Greenberg Traurig, Lori G. Cohen, Christiana C. Jacxsens, Thompson Hine, Leslie J. Suson, for appellees.
   SMITH, Presiding Judge.

In American Home Products Corp. v. Ferrari, 289 Ga. 184 (710 SE2d 771) (2011), the Supreme Court reversed the judgment of this court in Ferrari v. American Home Products Corp., 286 Ga. App. 305 (650 SE2d 585) (2007), based upon the opinion of the Supreme Court of the United States in American Home Products Corp. v. Ferrari, _ U. S. _ (131 SC 1567, 179 LE2d 471) (2011). We therefore vacate our earlier opinion and adopt the judgment of the Supreme Court as the opinion of this court. We further hold that we cannot consider the Ferraris’ constitutional claims because they were not timely raised or ruled upon by the trial court. See Bohannon v. State, 269 Ga. 130, 137 (5) (497 SE2d 552) (1998); Dalton Point, L.P v. Regions Bank, 287 Ga. App. 468, 472 (3) (651 SE2d 549) (2007).

Judgment affirmed.

Barnes, P J., and Miller, P. J., concur.