text:
    A12A0363.
    HILL v. THE STATE.
    (729 SE2d 1)
   Miller, Judge.

Charles Elliott Hill was indicted on two counts of violating the Georgia Racketeer Influenced and Corrupt Organizations Act (“RICO”) (OCGA§ 16-14-4 (b), (c)), four counts of subornation of false swearing (OCGA § 16-10-72), and one count of attempt to commit subornation of false swearing (OCGA §§ 16-4-1, 16-10-72). Hill filed a motion to dismiss the indictment, alleging excessive pre-indictment delay and a violation of his speedy trial rights. The trial court denied Hill’s motion, and Hill appeals. For the reasons that follow, we affirm.

“We review the trial court’s denial of a motion to dismiss an indictment on speedy trial grounds for abuse of discretion and defer to the trial court’s findings of fact and its weighing of disputed facts.” (Punctuation and footnote omitted.) Harrison v. State, 311 Ga. App. 787 (717 SE2d 303) (2011).

The record shows that Hill was arrested and indicted on November 20, 2009. Hill was released on bond on or about November 25, 2009. At his arraignment on February 3, 2010, Hill requested additional time to file motions, and he was ultimately given until August 31, 2010, to file all motions. Hill filed two motions in April 2010 and filed the instant motion to dismiss on August 31, 2010.

The case next appeared on the trial calendar on September 22, 2010, but both parties announced that they were not ready for a motions hearing or for trial. The trial court granted a continuance and ordered the parties to file notice of all leaves of absence and conflicts through December 31,2010. Hill’s counsel filed a notice that he would be on leave from November 8 through November 12 and December 3 through December 9, 2010. The State’s prosecutor likewise filed notice that he would be on leave from November 8 through November 10, 2010; November 22 through November 25, 2010; and December 23 through December 31, 2010. The State’s prosecutor also indicated that in 2011, he would be on leave from June 13 through June 17; June 20 through June 24; July 25 through July 27; and October 31 through November 4. Finally, Hill’s lead counsel indicated that he would be unavailable, either because of conflicts or leaves of absence, for the following periods in 2011: March 28 through April 1; April 4 through April 8; April 11 through April 29; May 2 through May 6; May 16 through June 3; and June 4 through June 14.

The trial court held a hearing on Hill’s motion to dismiss on June 15, 2011, and denied his motion on August 5, 2011. This appeal followed.

1. Hill contends that the trial court abused its discretion by denying his claim of pre-indictment delay, because the State delayed the prosecution of his case to gain a tactical advantage, and he sustained actual prejudice as a result. We disagree.

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. Both elements — actual prejudice and deliberate delay to gain a tactical advantage — must be established to find a due process violation.

(Citations and punctuation omitted.) Billingslea v. State, 311 Ga. App. 490, 492 (1) (716 SE2d 555) (2011); see also Hill v. State, 312 Ga. App. 12, 13 (1) (717 SE2d 523) (2011).

Here, Hill was arrested and indicted on November 20, 2009, for offenses that allegedly occurred between December 2005 and November 2006. The charges of RICO violations and subornation of false swearing have four-year statutes of limitation. OCGA §§ 16-14-4, 16-14-5 (a), 16-10-72, 17-3-1 (c). As a result, Hill was charged within the applicable statutes of limitation, which are “the primary guarantee against bringing overly stale criminal charges,” and protect the defendant “from being tried for offenses when the basic facts may have become obscured by the passage of time.” (Citation and punctuation omitted.) Billingslea, supra, 311 Ga. App. at 493 (2).

Hill contends that he was actually prejudiced by the three-year pre-indictment delay because his father, who was a potential defense witness, died during this period. The evidence shows, however, that Hill’s father died on July 15, 2010, about eight months after the indictment was returned. Even if Hill’s father died during the period of pre-indictment delay, his death does not automatically amount to actual prejudice. See, e.g., Manley v. State, 281 Ga. 466, 467-468 (640 SE2d 9) (2007); Hill, supra, 312 Ga. App. at 13 (1). While Hill generally proffered that his father was aware of the different issues underlying the criminal investigation and knew the people involved, Hill provided no further detail about what the anticipated testimony of his father would show nor did he establish how the testimony would have helped his defense. Consequently, Hill’s proffer failed to establish that his defense was actually prejudiced from the absence of his father as a witness. See Manley, supra, 281 Ga. at 467-468 (the fact that a key defense witness died before the defendant’s indictment, by itself, was not enough to demonstrate that the defendant would be denied a fair trial); Billingslea, supra, 311 Ga. App. at 493 (2) (the possibility that evidence would have assisted the defense does not establish actual prejudice).

Since Hill failed to demonstrate that the pre-indictment delay caused actual prejudice to his defense, we need not consider whether the delay was the result of the State’s deliberate action to gain a tactical advantage. See Hill, supra, 312 Ga. App. at 14 (1). Accordingly, the trial court did not err in denying Hill’s motion to dismiss based on pre-indictment delay. Id.

2. Hill also contends that the trial court should have granted his motion to dismiss the indictment based on the State’s violation of his Sixth Amendment right to a speedy trial. We disagree.

When considering a motion to dismiss on speedy trial grounds, the trial court must conduct a two-part test as set forth in the United States Supreme Court decisions in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), and Doggett v. United States, 505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992). See Stewart v. State, 310 Ga. App. 551, 552-553 (713 SE2d 708) (2011).

The first stage requires a determination of whether the interval from the defendant’s arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered “presumptively prejudicial.” Where the delay is only ordinary, rather than presumptively prejudicial, the defendant’s speedy trial claim fails at the threshold. A delay that is deemed to be presumptively prejudicial, however, triggers the second stage of the analysis. At this second stage, a court must determine whether the defendant has been deprived of his right to a speedy trial by analyzing a four-part balancing test that considers the conduct of both the State and the defendant (i.e., the Barker-Doggett factors): (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether the defendant was prejudiced by the delay. Standing alone, none of these factors [is] a necessary, or sufficient condition to a finding of deprivation of the right to a speedy trial, but rather should be considered as part of a balancing test.

(Citations and punctuation omitted.) Stewart, supra, 310 Ga. App. at 552-553.

(a) Presumptive Prejudice. Hill contends that the pre-trial delay was presumptively prejudicial.

“Speedy trial rights attach at the time of arrest or formal indictment, whichever is earlier.” (Citation and punctuation omitted.) Stewart, supra, 310 Ga. App. at 553 (1). Here, the trial court incorrectly determined that the delay was approximately 19 months, starting from the date Hill was indicted on November 20, 2009, and ending on the date the court considered Hill’s motion to dismiss on June 15, 2011. The relevant period, however, ended on August 5, 2011, the day the trial court denied Hill’s motion to dismiss. See id. (concluding that the relevant interval was the time that elapsed between the defendant’s arrest and the trial court’s denial of the defendant’s motion to dismiss). Consequently, the actual delay was approximately 21 months. Nevertheless, the trial court correctly found that the delay was presumptively prejudicial. See Hayes v. State, 298 Ga. App. 338, 340 (1) (680 SE2d 182) (2009) (a pre-trial delay exceeding 12 months is presumptively prejudicial). Therefore, we proceed to review the trial court’s findings with respect to the second stage of the Barker-Doggett analysis. See Johnson v. State, 313 Ga. App. 895, 899 (1) (723 SE2d 100) (2012) (while the trial court miscalculated the length of the delay by two months, it correctly found that the delay was presumptively prejudicial and proceeded to the second-stage analysis).

(b) Barker-Doggett Analysis.

1. Whether the pre-trial delay was uncommonly long.
While the length of delay plays a role in the threshold determination of presumptive prejudice, it is also considered as one of the four interrelated criteria that must be weighed in the balance at the second stage of the Barker-Doggett analysis____[I]t is important that trial courts not limit their consideration of the lengthiness of the pretrial delay to the threshold question of presumptive prejudice and remember to count it again as one of four criteria to be weighed in the balancing process at the second stage [.]

(Punctuation and footnotes omitted.) Johnson, supra, 313 Ga. App. at 899 (2) (a).

Here, there is nothing in the trial court’s order demonstrating that it considered whether the 21-month pre-trial delay was uncommonly long given the circumstances of the case. “To the extent the trial court overlooked this factor in the four-factor balancing process, it erred.” (Citation and punctuation omitted.) Teasley v. State, 307 Ga. App. 153, 158 (2) (a) (704 SE2d 248) (2010). The 21-month delay in this case “approaches that which has been held to be ‘deplorable,’ and at least with respect to the duration, such delay must be weighed against the State.” (Punctuation and footnote omitted.) Simmons v. State, 304 Ga. App. 39, 41 (2) (a) (696 SE2d 75) (2010).

2. Reasons and responsibility for the delay. Under the second Barker-Doggett factor, the trial court is required to examine both the reason for the delay and whether the delay was attributable to the defendant or to the State. See Stewart, supra, 310 Ga. App. at 554 (2) (b). Since “some amount of pretrial delay is unavoidable, the reason for the delay is pivotal in evaluating the strength of a constitutional speedy trial claim, as it can color the consideration of all other factors.” (Punctuation and footnote omitted.) Johnson, supra, 313 Ga. App. at 900 (2) (b).

Deliberate delay to hamper the defense weighs heavily against the prosecution. More neutral reasons such as negligence or overcrowded courts weigh less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. In contrast, delay caused by the defense weighs against the defendant.

(Citation and punctuation omitted.) Robinson v. State, 287 Ga. 265, 267 (1) (b) (695 SE2d 201) (2010).

Here, the trial court determined that Hill and the State were both responsible for the 21-month delay, and the record evidence supports the trial court’s finding. Significantly, Hill was given almost seven months from the date of his February 3, 2010 arraignment to file additional motions. After Hill filed the instant motion to dismiss on August 3, 2010, his lead counsel was unavailable for a total period of approximately three months — one week in November 2010; one week in December 2010; one week spanning the end of March and the beginning of April 2011; all of April 2011; all of May 2011; and two weeks in early June 2011. See, e.g., Stewart, supra, 310 Ga. App. at 555 (2) (b) (delay partially caused by attorney’s multiple leaves of absence were attributable to the defendant); Howard v. State, 307 Ga. App. 822, 826 (2) (b) (706 SE2d 163) (2011) (delay partially caused by counsel’s unavailability is attributable to the defendant). Consequently, Hill was responsible for approximately ten months of the delay.

With respect to the remaining delay, the record reveals that the State’s prosecutor was unavailable for approximately one month between the time Hill filed his motion to dismiss on August 31, 2010, and the date of the hearing on the same on June 15, 2011. Additionally, the trial court took two months from the date of the hearing to issue its order denying Hill’s motion to dismiss. While the reasons for this two-month delay were not evident from the record, the trial court explained that much of the overall delay was necessitated by the trial court’s overcrowded docket and inability to reassign the case to a senior judge for expedited handling due to budgetary constraints. See Teasley, supra, 307 Ga. App. at 159 (2) (b) (unintentional delays caused by overcrowded court dockets are weighed against the State); Johnson, supra, 313 Ga. App. at 901 (2) (b) (“[W]hen there is no apparent reason for a delay, we must treat the delay as caused by the negligence of the State in bringing the case to trial”) (punctuation and footnote omitted).

Notwithstanding Hill’s claims otherwise, there is no evidence that the State deliberately delayed the trial in an effort to gain a tactical advantage. In fact, the record shows that the State repeatedly indicated that it was proceeding with the prosecution, because it filed three motions between June 2010 and March 2011, requesting that the trial court set a specific date for a motions hearing or for trial. Since the record supports the trial court’s finding that Hill and the State were equally responsible for the pre-trial delay, the trial court did not err in concluding that this Barker-Doggett fact was ultimately neutral. See Robinson, supra, 287 Ga. at 268 (1) (b) (where both parties are to blame for delay, second Barker-Doggett factor remains neutral).

3. Assertion of the Right.

It is the responsibility of the defendant to assert his right to a speedy trial, and his failure to do so in a timely manner weighs strongly against him. Indeed, the failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. This factor weighs especially strongly against a defendant where he has been represented by counsel since soon after his arrest but does not assert his right to a speedy trial until just before trial.

(Citations and punctuation omitted.) Howard, supra, 307 Ga. App. at 827 (2) (c).

Here, Hill secured counsel shortly after his arrest on November 20, 2009. Hill never filed a demand asserting his statutory right to a speedy trial under OCGA § 17-7-170, and he raised his constitutional right to a speedy trial for the first time in his August 31, 2010 motion to dismiss. Since Hill requested an extension of approximately seven months to file motions in his case, and waited until the last day of the trial court’s extended deadline to raise the speedy trial claim, the trial court found that the delay in asserting his speedy trial right was a factor to be weighed against Hill. Based on these circumstances, we conclude that the trial court did not err in this respect. See Bell v. State, 287 Ga. App. 300, 302 (651 SE2d 218) (2007) (thetrialcourtwas authorized to weigh against the defendant his failure to assert his speedy trial right until ten months after his indictment).

4. Prejudice to the Defendant. In evaluating the final BarkerDoggett factor, we consider three types of prejudice normally associated with an unreasonable delay before trial: oppressive pre-trial detention; anxiety and concern of the accused; and the possibility that the accused’s defense will be impaired. State v. Porter, 288 Ga. 524, 529 (2) (c) (4) (705 SE2d 636) (2011). Of these three types of prejudice, the last is the most serious because the inability of the defendant to adequately prepare his defense affects the fairness of the justice system. Id.

Notwithstanding Hill’s contention otherwise, the first three Barker-Doggett factors did not weigh heavily against the State, and therefore, we must consider whether Hill suffered actual prejudice. See Hayes, supra, 298 Ga. App. at 347 (2) (d) (“[W]hether a defendant needs to show particularized prejudice depends upon an evaluation of the first three factors in the balancing test, and whether those factors weigh against the government.”). Furthermore, Hill’s contention that this case gives rise to a presumption of actual prejudice based on substantial delay is without merit. While the 21-month delay in this case was presumptively prejudicial, this presumptive prejudice cannot alone carry Hill’s speedy trial claim without regard to the other Barker-Doggett factors. See Stewart, supra, 310 Ga. App. at 558 (2) (d).

Aside from the presumptive prejudice that arose in this case, however, and as the trial court found, Hill made no showing of any actual prejudice. Significantly, the record supports the trial court’s finding that there was no oppressive pre-trial incarceration, because Hill was released from custody on bond shortly after his arrest and indictment on November 20, 2009. See Green v. State, 295 Ga. App. 468, 471 (6) (672 SE2d 414) (2008) (no oppressive incarceration where the defendant was out on bond for the period of delay). Hill also made no showing of unusual anxiety and concern arising out of the delay. See id.

While Hill argued that the delay impaired his defense since his father was no longer available to testify, he needed to present specific evidence showing “that the unavailable witness could supply material evidence for the defense.” (Citation and punctuation omitted.) Higgins v. State, 308 Ga. App. 257, 262 (2) (d) (707 SE2d 523) (2011). However, as discussed in Division 1 above, Hill made no proffer as to what his father would have specifically testified about, why that testimony would have been favorable to Hill, or why that testimony would not have been cumulative of other witnesses available to Hill. See, e.g., Porter, supra, 288 Ga. at 530 (2) (c) (4) (the purported death of a close family member did not establish actual prejudice where there had been no sufficient proffer of the absent witness’s testimony, why such testimony was favorable to the defense, or why such testimony would not have been cumulative); Christian v. State, 281 Ga. 474, 478 (2) (640 SE2d 21) (2007) (defendant failed to show prejudice where she did not demonstrate that a missing witness would have provided testimony favorable and relevant to her defense); Higgins, supra, 308 Ga. App. at 263 (2) (d) (defendant failed to meet burden of establishing prejudice where he stated only that the unavailable witness would have contradicted the victim’s version of events without specifying what the victim’s testimony would be). Consequently, Hill failed to substantiate the presumptive prejudice arising from the delay, and the trial court properly weighed this last Barker-Doggett factor against Hill. See Higgins, supra, 308 Ga. App. at 263 (2) (d) (defendant’s failure to provide specific evidence of prejudice weighed against him).

5. Barker-Doggett Balancing Test. “A trial court exercises substantial discretion in applying the Barker[-Doggett] balancing test, and its ultimate judgment is reviewed on appeal only for abuse of that discretion.” (Citation and punctuation omitted.) Porter, supra, 288 Ga. at 533 (2) (e). Nevertheless, “where the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished.” (Citation and punctuation omitted.) Id.

While the trial court failed to consider the length of the delay separately from the threshold presumptive prejudice analysis, the trial court properly found that the reason for the delay was neutral based on each party’s role in contributing to the delay. The trial court also properly weighed Hill’s delay in asserting his right to a speedy trial in light of the extended period he was given to file all motions. Finally, although there was a presumption of prejudice based on the length of the delay, the trial court correctly determined that Hill failed to substantiate this presumption with any evidence of actual prejudice. Consequently, “[a]lthough the trial court’s analysis was somewhat [incomplete], and therefore our deference to the trial court diminished, we cannot say in this case [for certain] that the trial court abused its discretion by denying [Hill’s] motion to dismiss.” (Citations omitted.) Stewart, supra, 310 Ga. App. at 561 (2) (e).

Judgment affirmed.

Mikell, P. J., and Blackwell, J., concur.

Decided May 10, 2012.

Kimberly H. Cornwell, Bruce S. Harvey, for appellant.

Robert D. James, Jr., District Attorney, Joseph F. Burford, Gary D. Bergman, Assistant District Attorneys, for appellee.

       Hill’s claims are substantially similar to those previously raised and addressed in a prior appeal. See Hill, supra, 312 Ga. App. at 13-14 (1)-(2).

       Although Hill contends that the State deliberately delayed prosecuting his case since it knew of the alleged offenses in 2007 and waited until 2009 to indict him, any delay that preceded his arrest is not relevant to a Sixth Amendment speedy trial analysis. Cf. Hill, supra, 312 Ga. App. at 13 (recognizing that pre-arrest, pre-indictment delay raises due process concerns under the Fifth and Fourteenth Amendments, while delay after arrest or indictment possibly implicates Sixth Amendment speedy trial protections). As discussed in Division 1 above, there is no merit to Hill’s claim that the pre-arrest delay violated his due process rights.


source: Caselaw Access Project

author: MlKELL, Presiding Judge.

license: Public Domain

text:
    A12A0380.
    OSBORN v. THE STATE.
    (729 SE2d 21)
    Decided May 10, 2012.
    Charles W. Osborn, pro se.

      W. Jeffrey Langley, District Attorney, Christopher M. Foss, Assistant District Attorney, for appellee.
   MlKELL, Presiding Judge.

Charles Wayne Osborn, convicted on October 28, 2009, of aggravated battery, cruelty to children, and hindering an emergency phone call, appeals from the trial court’s denial of his motion for out-of-time appeal.

Osborn filed a notice of appeal from his conviction on October 29, 2010. That appeal was dismissed by order of this court on January 7, 2011, which order also advised Osborn that he could file a motion for out-of-time appeal with the trial court. Osborn did so on August 29, 2011, and that motion was denied by the trial court on September 20, 2011, without a hearing.

As acknowledged by appellee, this matter must be remanded to the trial court for a hearing on the issue of whether the failure to file a timely appeal was the result of a constitutional violation concerning the appeal.

Judgment reversed and case remanded with direction.

Miller and Blackwell, JJ., concur.

        Gable v. State, 290 Ga. 81, 85-86 (720 SE2d 170) (2011), citing Rowland v. State, 264 Ga. 872, 875-876 (2) (452 SE2d 756) (1995) (“Should, upon the defendant’s application for out-of-time appeal, it be established to the trial court’s satisfaction that the appellate procedural deficiency was due to appellate counsel’s failure to perform routine duties, appellant is entitled to an out-of-time appeal.”) (footnote omitted).


author: Miller, Judge.

text:
    A12A0476.
    CRUZ v. THE STATE.
    (729 SE2d 9)
   Miller, Judge.

Sabino Padillo Cruz was granted an out-of-time appeal to challenge the denial of his post-sentencing motion to withdraw his guilty plea to aggravated child molestation (OCGA § 16-6-4 (c)), child molestation (OCGA § 16-6-4 (a) (1)), and burglary (OCGA § 16-7-1 (a)). Cruz contends that the trial court erred in denying his motion to withdraw his guilty plea since his counsel provided ineffective assistance during the plea negotiations and proceedings. We discern no error and affirm.

After sentence is pronounced, whether to allow the withdrawal of a guilty plea lies within the trial court’s sound discretion, and we review the trial court’s decision for manifest abuse of that discretion. On a motion to withdraw a guilty plea, the trial court is the final arbiter of all factual issues raised by the evidence.

(Citations and punctuation omitted.) Blass v. State, 293 Ga. App. 346 (667 SE2d 140) (2008).

Here, the record shows that Cruz was charged with aggravated child molestation, two counts of child molestation, and burglary. Herbert Adams (“counsel”) was appointed to represent Cruz during the criminal proceedings. Since Cruz spoke only Spanish, counsel used interpreters to translate the communications that occurred during their meetings at the jail and during the court proceedings.

Subsequent to Cruz’s arraignment, the State proposed a plea offer involving the dismissal of the aggravated child molestation charge, entry of a guilty plea to the child molestation and burglary charges, and a sentence of twenty years to serve ten years in prison and the balance on probation. Counsel testified that he advised Cruz of the plea offer, the terms, and options, and that he communicated through an interpreter to make sure that Cruz understood. Cruz asked counsel to put the offer in writing, so that he could review it more thoroughly. Accordingly, counsel sent Cruz a letter that fully explained the plea offer’s terms and his options. Counsel stated that he met with Cruz again, with the assistance of an interpreter, to review the letter and to ensure that Cruz fully understood his rights.

At a hearing held on July 1,2002, the terms of the plea offer were expressed to Cruz again on the record, and the State advised that the plea offer would expire on July 5, 2002. The State further stated that if Cruz did not accept the plea offer prior to its expiration, it would proceed to trial on all of the charged offenses. The possible sentencing ranges for each offense were also explained. Counsel stated that he had advised Cruz of the plea offer, but that Cruz wanted to present a counteroffer for less time in prison and otherwise decided that he wanted a jury trial. Since Cruz did not agree to the sentencing terms of the State’s plea offer, counsel raised the option of a nonnegotiated plea; counsel explained that the trial court would not be bound by the parties’ sentencing recommendations, but that Cruz would have an opportunity to make a persuasive case for the imposition of a lesser sentence. Counsel advised, however, that he could not guarantee any outcome and wanted Cruz to understand the possible sentence that he was facing, so that he could decide whether to accept the State’s plea offer before its expiration. Cruz was asked whether he understood the terms and his options, and he replied, ‘Tes, sir.”

Cruz rejected the State’s plea offer. According to counsel, Cruz gave conflicting statements indicating that he did not want to serve ten years in prison in accordance with the plea offer, and yet that he did not want to proceed to trial.

Subsequently, in September 2002, a nonnegotiated plea hearing was conducted. The transcript of the guilty plea hearing reflects that the State then made a sentencing recommendation of 30 years to serve 17 years in prison on the aggravated child molestation charge, and 15 years to serve concurrently on the remaining charges. Counsel countered by requesting a sentence of twenty years to serve ten years in prison on all counts concurrently. Cruz was advised that the trial court could impose any sentence allowed by law. Cruz entered a nonnegotiated plea of guilty to each of the charged offenses, acknowledging that he had in fact committed the offenses. Cruz testified under oath that he understood the charges of the indictment, the rights that he was waiving by entering the guilty plea, the sentencing ranges for the charged offenses, and the conditions of probation. Cruz further affirmed that no promises or threats had been made in exchange for his guilty plea, that he entered his plea freely and voluntarily, that he was satisfied with his counsel’s services, and that he understood all of the questions that he had answered during the plea colloquy. The trial court accepted Cruz’s guilty plea, and imposed an aggregate sentence of 30 years to serve 20 years in prison, along with general and special conditions of probation.

Cruz thereafter filed a pro se motion to withdraw his guilty plea, contending that he did not understand what had transpired at the plea hearing. Following an evidentiary hearing, the trial court denied Cruz’s motion.

1. Cruz first contends that he was entitled to withdraw his guilty plea based upon the ineffective assistance provided by his counsel during the plea negotiations and proceedings.

The Sixth Amendment guarantees a defendant the right to have counsel present at all critical stages of the criminal proceedings. . .. Hill [v. Lockhart, 474 U. S. 52, 57 (106 SC 366, 88 LE2d 203) (1985)] established that claims of ineffective assistance of counsel in the plea bargain context are governed by the two-part test set forth in Strickland [v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)].

(Citations and punctuation omitted.) Missouri v. Frye,_U. S._, __ (II) (A) (132 SC 1399, 182 LE2d 379) (2012). To prevail onhis claim of ineffective assistance of counsel, Cruz was therefore required to show that his “counsel’s representation fell below an objective standard of reasonableness” and that “the outcome of the plea process would have been different with competent advice.” (Citations and punctuation omitted.) Lafler v. Cooper,_U. S._,_(II) (A), (B) (132 SC 1376, 182 LE2d 398) (2012). Significantly, a claim of ineffective assistance of counsel is not judged by hindsight. See Cammer v. Walker, 290 Ga. 251, 255 (1) (719 SE2d 437) (2011).

Here, it is undisputed that counsel reported the State’s favorable plea offer to Cruz. Cruz nevertheless contends that counsel was ineffective in failing to adequately explain the plea offer so that he could understand the terms. He also contends that counsel failed to adequately explain the consequences of entering into the subsequent nonnegotiated plea. Cruz’s contentions, however, are belied by the record evidence.

The evidence shows that counsel sent Cruz a letter that explained in layman’s terms the details of the State’s plea offer, along with the option and risks of a nonnegotiated plea. Counsel testified that he reviewed and discussed the letter, the terms of the plea offer, and the nonnegotiated plea option with Cruz, using an interpreter to communicate during their discussions. Moreover, Cruz was again advised of the terms and the expiration date of the plea offer, along with his options, at a hearing that was transcribed to establish as a matter of record that he had received and understood the information. When Cruz was asked whether he understood the terms and his options, Cruz replied, “Yes, sir.”

Before a guilty plea is entered the defendant’s understanding of the plea and its consequences can be established on the record. This affords the State substantial protection against later claims that the plea was the result of inadequate advice. At the plea entry proceedings the trial court and all counsel have the opportunity to establish on the record that the defendant understands the process that led to any offer, the advantages and disadvantages of accepting it, and the sentencing consequences or possibilities that will ensue once a conviction is entered based upon the plea.

Frye, supra, _U. S. at ___ (II) (A). Since these recommended protections were taken in this case, there is record evidence establishing that Cruz was adequately advised regarding the plea offer, his options, and the risks. The evidence also shows that Cruz decided to reject the plea offer since he did not agree to the term proposing a ten-year period of imprisonment. Cruz insisted upon serving no more than three years in prison, which was not in accordance with the plea offer.

While Cruz further argues that counsel failed to advise him as to the parole guidelines, which he claims would have resulted in a 34-month term of imprisonment upon his acceptance of the plea offer, there is no record evidence supporting his argument. At the motion hearing, Cruz failed to raise the issue of parole eligibility and failed to present any evidence in support of the factors relevant to calculating the parole guidelines. Moreover, the operation of the parole guidelines did not establish that Cruz’s period of incarceration would have been limited to 39 months, as he alleges. The ultimate decision of whether to grant or deny parole is left to the discretion of the State Board of Pardons and Paroles, and thus, a release on parole is not guaranteed. See Ray v. Carthen, 275 Ga. 459, 460 (1) (569 SE2d 542) (2002); Baker v. Ray, 275 Ga. 205, 206 (2) (563 SE2d 429) (2002) (“The Board’s constitutional power to make parole decisions is discretionary. . . . [Njothing in the applicable statutes mandates that the guidelines control the final parole decision.”) (citation and punctuation omitted).

Based upon the record evidence, the trial court was authorized to discredit Cruz’s contention that counsel was ineffective in his communications and advice regarding the plea offer and the nonnegotiated plea. See Cammer, supra, 290 Ga. at 255-256 (2); Blass, supra, 293 Ga. App. at 347. The evidence reflects that Cruz was fully advised regarding the plea matter, and that he rejected the State’s plea offer because he was not in agreement with its sentencing terms. Having received the full and careful advice of counsel, the ultimate decision of whether to plead guilty belonged to Cruz. See Cammer, supra, 290 Ga. at 254-255 (1), (2). The fact that Cruz now regrets his decision to reject the State’s plea offer affords no basis for relief. ‘Viewed without the distorting effects of hindsight,.. . counsel’s conduct was reasonable in this case.” (Citation and punctuation omitted.) Id. at 255 (1).

2. Cruz also argues that counsel was ineffective in failing to communicate with him using a certified interpreter. Again, no reversible error has been shown.

Notwithstanding Cruz’s claim, the evidence shows that counsel recognized the need for interpreters and secured them to communicate with Cruz during their meetings and throughout the court proceedings. During the plea hearings, Cruz was asked whether he understood the discussions and the questions posed during the plea colloquy, and he responded in the affirmative. “[Cruz] had ample opportunity to inform counsel or the court of any problems with the interpreters, and the fact that he did not do so during the [proceedings] hampers him in meeting his burden to show that counsel’s performance in securing interpreters to assist him was inadequate.” (Citations and punctuation omitted.) Pineda v. State, 288 Ga. 612, 616 (4) (706 SE2d 407) (2011). “[Cruz’s] failure to interpose a timely objection to [the interpreters’] qualifications constitutes a waiver of the issue on appeal.” (Citation omitted.) Ramos v. Terry, 279 Ga. 889, 893 (2) (622 SE2d 339) (2005). Moreover, there was no evidence that the translators were not certified or that they mistranslated any of the communications. Under these circumstances, the trial court did not err in finding that Cruz failed to establish his ineffectiveness claim. See Luviano v. State, 291 Ga. App. 677, 679-681 (662 SE2d 770) (2008); see, e.g., Cruz v. State, 305 Ga. App. 805, 808-809 (2) (700 SE2d 631) (2010); Duran v. State, 274 Ga. App. 876, 879-880 (4) (619 SE2d 388) (2005).

Decided May 10, 2012.

Corso, Kennedy & Campbell, Arturo Corso, for appellant.

Daniel J. Porter, District Attorney, Stephen A. Fern, Assistant District Attorney, for appellee.

3. Cruz contends that his guilty plea was not voluntarily and knowingly entered.

[W]hen the validity of a guilty plea is challenged, the State bears the burden of showing that the plea was voluntarily, knowingly, and intelligently made. The State may do this by showing through the record of the guilty plea hearing that (1) the defendant has freely and voluntarily entered the plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea.

(Citation and punctuation omitted.) Blass, supra, 293 Ga. App. at 346. In this case, the State met its burden through the record reflecting Cruz’s sworn testimony given at the nonnegotiated plea hearing. See id. at 347. Since the evidence established that Cruz freely and voluntarily entered his nonnegotiated guilty plea, the trial court did not err in denying his motion to withdraw the plea. See id. Cruz’s dissatisfaction with the imposed sentence affords no basis for reversal.

Judgment affirmed.

Mikell, P. J., and Blackwell, J., concur.

       This is the second appearance of this case before our Court. In Cruz’s prior appeal, Cruz v. State, 311 Ga. App. 527 (716 SE2d 590) (2011), we remanded this case to the trial court for a hearing to determine whether Cruz was entitled to an out-of-time appeal following the denial of his motion to withdraw his guilty plea. Following remand, the trial court entered an order granting Cruz’s motion for an out-of-time appeal.

       Cruz has filed a motion to remand this case to the trial court for an evidentiary hearing so that he can attempt to elicit evidence showing that counsel failed to inform him of the parole computations and that his former appellate counsel was ineffective in failing to make sufficient inquiry regarding the plea bargain process during the motion hearing. Notably, however, the trial court previously conducted an evidentiary hearing on Cruz’s motion to withdraw guilty plea, and Cruz’s new appellate counsel did not file any motions or raise additional claims of ineffectiveness in the trial court prior to pursuing this appeal. Under these circumstances, Cruz is not entitled to a second hearing on the same motion to withdraw guilty plea in order to present additional evidence and claims that were not previously raised and addressed. His motion to remand is therefore denied.

       We further note that a failure to inform a defendant of the parole consequences of a guilty plea does not constitute ineffective assistance of counsel. See Wright v. Hall, 281 Ga. 318, 321 (2) (d) (638 SE2d 270) (2006); Argot v. State, 261 Ga. App. 569 (1) (583 SE2d 246) (2003). Although it is erroneous to misinform a defendant of parole consequences, Crabbe v. State, 248 Ga. App. 314 (546 SE2d 65) (2001), there is no evidence that counsel misinformed Cruz in this case.


text:
    A12A0699.
    CORDY v. THE STATE.
    (729 SE2d 13)
   MlKELL, Presiding Judge.

Toi Cordy, convicted by a jury of driving under the influence of alcohol, less safe, appeals, contending that the evidence was legally insufficient and that the trial court erred in not giving one of her requested jury charges. Finding no error, we affirm.

1. We first consider the legal sufficiency of the evidence.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence was that, on December 5, 2010, around 8:00 p.m., Giovanny Aponte had gotten off work and was driving on Highway 92 off Fulton Industrial Parkway in Fulton County when he came up behind a silver Taurus in the left lane going slower than he was. Aponte was pulling into the right lane when the Taurus started into that lane without signaling, forcing Aponte to slam on his brakes to avoid a collision. Aponte called Fulton County 911 to report the incident and continued to follow the Taurus. Because they were approaching the Douglas County line, Fulton County transferred the call to Douglas County, which took over. While following the Taurus in Douglas County, Aponte observed it crossing over the centerline into oncoming traffic with both left tires crossing entirely over the centerline. Aponte observed this happen at least ten times. Aponte also observed the car’s speeds vary from 30 to 55 mph for no apparent reason. Aponte followed the Taurus until he saw it being pulled over by a Douglas County Sheriff’s car.

Douglas County Sheriff’s Deputy Mark Matthews, responding to the be-on-the-lookout call for an early 2000 silver Taurus with a paper tag, pulled over Cordy’s Taurus. He identified Cordy as the driver of the Taurus. According to Deputy Matthews, the Taurus was champagne in color, but was one of those paint jobs that looked different colors in different light. When asked by Deputy Matthews for her license and registration, Cordy appeared confused and moved very slowly and had to be asked several times for the documents. At one point, Cordy took her wallet out of her purse, opened it up, looked at her driver’s license, closed her wallet, and put it down. Asked if she had been drinking or taking medication, Cordy said no. When Deputy Matthews asked Cordy to get out of the car, she stumbled twice and had to put her hand on the car to steady herself. Asked if she had trouble with her legs, Cordy responded that she “needed to pee.” When she got out of the car, Deputy Matthews again asked Cordy if she had been drinking, and she said that she had been and that she had had two or three drinks. Because he was not equipped with an alco-sensor, Deputy Matthews radioed for Deputy Michael Long to come administer that test. Deputy Long administered the test, and Cordy tested positive for alcohol. Deputy Long also smelled the odor of alcohol on Cordy’s breath. Cordy also told Deputy Long that she had had two drinks and also said that she thought she was in Gwinnett County. Cordy was arrested and advised of the implied consent law. Asked if she understood it, Cordy did not respond. She was re-advised of the implied consent law at the jail and, in response, said she “needed to pee.” Cordy did not ever agree to take the state administered test.

In order to prove DUI less safe, “the state must prove that the defendant had impaired driving ability as a result of drinking alcohol.” We conclude that the evidence was sufficient to authorize the jury to find Cordy guilty beyond a reasonable doubt of DUI less safe.

2. Cordy contends that the trial court’s failure to give a portion of one of her requests to charge was reversible error.

“In reviewing an allegedly erroneous jury instruction, this Court applies the plain legal error standard of review.” The requested charge stated that

I further charge you that standing alone, the mere fact of a person’s having refused an officer’s request to take a chemical test is not in and of itself determinative of the issue of whether the person was or was not under the influence of alcohol. There may be other legal consequences of a civil nature against a person for the refusal, but there is no inference in law that a person must be intoxicated simply because he chooses to exercise his legal right to refuse to submit to an optional test.

Decided May 10, 2012.

Benjamin A. Davis, Jr., for appellant.

Brian K. Fortner, Solicitor-General, Robert W. Starrett, Assistant Solicitor-General, for appellee.

(Emphasis supplied.)

Where written requests to charge are “either inaccurate, inapt, incorrect, argumentative, or covered in the charge as given by the trial court, the court [does] not err in not giving the instructions as requested.”

We find that the italicized portion of the request is inaccurate and argumentative and that the charge as given by the trial court accurately covered the substance of Cordy’s request.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

       OCGA § 40-6-391 (a) (1).

       (Citations and punctuation omitted.) Bierria v. State, 232 Ga. App. 622, 624 (1) (502 SE2d 542) (1998).

       (Punctuation and footnote omitted.) Crusselle v. State, 303 Ga. App. 879, 881 (1) (694 SE2d 707) (2010).

       Id.

       (Punctuation and footnote omitted.) Id. at 882 (2).

        McKinney v. State, 121 Ga. App. 815, 816 (3) (175 SE2d 893) (1970). See also Walker v. State, 282 Ga. 406, 408 (2) (651 SE2d 12) (2007) (“The refusal to give a requested charge is error only where the request made is a correct statement of law that is pertinent and material to an issue in the case and contains information that is not substantially covered by the charge actually given.”) (citation omitted).

        Crusselle, supra.


author: DOYLE, Presiding Judge.

text:
    A12A0700.
    FOX v. KORUCU.
    (729 SE2d 16)
   DOYLE, Presiding Judge.

Ayhan Korucu and Donna J. Fox were divorced in 2002, and Korucu was awarded primary physical custody of their daughter, A. K. Korucu subsequently filed a petition for modification of custody, and Fox filed a motion for summary judgment. The trial court denied the motion, and Fox appeals. We affirm, for the reasons that follow.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA§ 9-11-56 (c). Adenovo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that Korucu and Fox were divorced on October 7, 2002. Pursuant to the final judgment and decree, the parties shared joint legal and physical custody of A. K., and Korucu had primary physical custody. On March 10, 2004, the trial court amended the divorce decree, granting Fox “final decision-making authority concerning the choice of school [A. K.] attends as long as the school is in the same public school district as [Korucu’s] residence.”

In 2010, Korucu filed a petition for modification of custody seeking tie-breaking authority concerning A. K.’s education on the basis that there had been “a significant change in the circumstances and conditions surrounding the child such that it is in [her] best interest” to so modify custody. In a subsequent amended petition, he alleged that “the significant and material changes surrounding the parties and the parties’ minor child include, but are not limited to, [Fox’s] refusal to cooperate with [Korucu] to make decisions concerning the child’s education that are in the child’s best interest, [Fox’s] misuse of her tie-breaking authority over educational matters by basing her decisions on bigotry and prejudice, and disregarding the wishes and needs of the child.”

Fox filed a motion for summary judgment, arguing that under Georgia law, a dispute over a child’s education does not qualify as a material change in circumstances substantially affecting the interest and welfare of the child. In support of her motion, Fox filed her affidavit stating that A. K. was attending public middle school in the district where Korucu resided and that A. K. was in the gifted program, had excellent grades, “thrived” at the school, exceeded all standards in recent testing, was socially active, and was qualified to participate in the 2010 MAP program sponsored by Duke University. Fox also stated that Korucu was the president of the board of directors for the Fulton Science Academy (“FSA”), a charter middle school located in another school district, and that he wanted A. K. to attend FSA and was unwilling to consider any other option. According to Fox, she decided that it was in A. K.’s best interest to attend the public middle school based on Fox’s consideration of a number of factors, including the facilities at the school, course offerings and extracurricular activities, commute time, the availability of programs for advanced students, and her concerns that Korucu would “us[e] FSA to distance [A. K.] from [Fox].”

In response to the motion, Korucu filed two affidavits, stating in the first: “It is my wish, and it is my strong impression that it is my daughter’s wish, that [A. K] attend middle school at [FSA]. [A. K] is very unhappy with [her current public middle school], appears very stressed about it, and her grades have begun to fall dramatically.” Korucu also stated that FSA had excellent standardized test scores and had received many awards and that over 50 percent of the students were in the gifted program. In a subsequent affidavit, Korucu explained that A. K.’s stress and unhappiness about her current school were based in part on unsafe incidents at the school, including 16 incidents involving weapons. Approximately three months later, Korucu filed a third affidavit stating that when the trial court entered the order giving Fox final decision-making authority regarding A. K’s education in 2004,

I could not have predicted [A. K] would be the stellar student she has turned out to be, as she has surpassed any parent’s expectations____[A. K] is a gifted student who has thrived academically, performing better in school and extracurricular activities than I could have dreamed. . . . Due to the minor child’s unique and unforeseen abilities, she should be enrolled in [FSA], where she can continue to grow and thrive as a gifted student.

The trial court denied Fox’s motion for summary judgment, noting in the order that

it cannot and will not modify final educational decision [-] making authority based solely on the fact that the parents have a dispute over the education of the child____The [c]ourt may, however, modify final educational decision [-] making authority if the [c]ourt finds that there has been a change of circumstances [,] which has substantially affected the interest and welfare of the child.

Relying primarily upon Korucu’s initial affidavit stating that A. K. appeared to be “very stressed” about her school and that her grades “had begun to fall dramatically,” the trial court concluded that “there is a genuine issue of material fact as to whether the choice of school is having a substantial effect on the interest and welfare of the child.” Fox argues that the trial court erred by denying her motion for summary judgment because disagreements regarding a child’s education do not qualify as a substantial change in circumstances authorizing a change of custody. She also contends that Korucu’s contradictory affidavits establish that there is no evidence that A. K.’s current school has caused her stress or adverse effects or that such effects constitute a new and material change of condition arising since the last custody award. These arguments are unpersuasive.

Atrial court is authorized to modify an original custody award upon a showing of new and material changes in the conditions and circumstances substantially affecting the interest and welfare of the child. The proof must show both a change in conditions and an adverse effect on the child. . . .

Fox maintains that a disagreement regarding a child’s education does not constitute a material change in circumstances sufficient to justify a custody modification. She relies on several cases, including Terry v. Garibaldi, in which the parents both sought a change of custody based in part on the parents’ inability to make a decision regarding whether their child should attend public or private school. The trial court found that the mother showed a material change in condition based on the parents “differing views regarding the appropriate educational setting,” and we reversed, holding that “[a] dispute over how a child will be educated is not a material change that will justify a change of custody.” In Terry, however, there was no evidence of a change of conditions and, as we noted, the trial court failed to “give any indication in its order that a change in condition has had an adverse effect on the child.”

Similarly, in Bisno v. Bisno, the father sought a custody change after the mother, who had custody of their children, decided to move to another county and refused to allow the children to remain with the father and attend their current school. The trial court changed custody to the father, and the Supreme Court of Georgia reversed because “[t]he only evidence of any change affecting these minor children grows out of their removal as students from the Hebrew Academy in Atlanta and the natural desire of their father for the children to remain with him and for their excellent education at the Academy to continue.” In the absence of any evidence of a substantial change in circumstances, the Supreme Court held that “[t]his falls short of proving a material change substantially affecting the welfare of the minor children.”

Decided May 10, 2012.

Callner, Portnoy & Strawser, Kathy L. Portnoy, for appellant.

Miles, Patterson, Hansford & Tallant, Jennifer D. Patterson, Lauren C. Giles, for appellee.

In the instant case, in contrast, Korucu submitted an affidavit stating that A. K’s grades had “begun to dramatically drop” and that she was unhappy and stressed about attending her current school. As the trial court concluded, this constitutes some evidence of a material change in circumstances that adversely affected the child. Although the trial court may ultimately conclude that Korucu failed to meet his burden, there are genuine issues of material fact that preclude summary judgment at this time.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       (Citations and punctuation omitted; emphasis supplied.) Todd v. Casciano, 256 Ga. App. 631, 632 (1) (569 SE2d 566) (2002).

       274 Ga. App. 405, 408 (2) (618 SE2d 6) (2005).

       See id. at 406.

       Id. at 408-409 (2).

       Id. at 409 (2).

       238 Ga. 328 (232 SE2d 921) (1977).

       Id. at 329.

       Id.

       We are unpersuaded by Fox’s argument that Korueu’s affidavits are contradictory and therefore, pursuant to Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986), his first affidavit must be construed against him. Reading the affidavits together in their entirety, we do not find them contradictory.


author: Adams, Judge.

text:
    A12A0309.
    WINDHOM v. THE STATE.
    (729 SE2d 25)
   Adams, Judge.

Errol Windhom appeals his conviction of armed robbery. He challenges the sufficiency of the evidence; he also contends the trial court erred by not declaring a mistrial following an officer’s testimony, by failing to give seven of his requested jury charges, and by sentencing him in violation of the Georgia and United States Constitutions. We reverse and remand for new trial.

Construed in favor of the verdict, the evidence, including the testimony of co-defendant Christopher Graddick, shows that on May 18, 2009, Graddick, Michael Shane Bedford, and Alex Williams went to the A&Z Flower and Game Shop. While there, Bedford talked about robbing the store, they all stayed about 30 minutes, but they decided to leave without taking any action.

Graddick testified that the next day, Windhom, whom Graddick had known for about a year, called him and asked him to come over to his house. Graddick testified, “[Windhom] said he was going to go play the machines, so we went to play the machines.” So, Windhom, driving his red Volvo, took Graddick, picked up Bedford, and dropped them off at one end of the shopping center where the A&Z shop was located. Graddick testified that during the ride, Windhom gave Bedford his .38 caliber handgun. Windhom then drove to the other end of the shopping center and parked directly in front of the A&Z shop. Graddick testified that Windhom called him and Bedford at one point. Once inside, Windhom played some video games and had a conversation with Melissa Ann Amin, the florist and only shopkeeper present at the time. Amin testified that Windhom was a regular customer, that he even parked in the same place most days, and that he “came in, as usual, like he does mostly every day.” She had never seen him with the robbers before. Windhom was in the shop for 30 to 45 minutes before the robbery. At one point, he received a call on his cell phone; he told Amin that it was from his daughter.

At some point, Graddick and Bedford approached the shop and waited for Windhom to come out. According to Graddick, when Windhom failed to come out, they entered the shop with Bedford holding the gun. As they did, Windhom exclaimed, “Oh no,” and Amin looked and saw two men enter. The robber with a gun was dressed in a black cap, black pants, and a long-sleeved black shirt, and he “had a black thing over his mouth and nose.” Because she was paying attention to the gunman, she did not recall what the other robber was wearing. Nevertheless, Amin recognized both robbers as the two men who had been there the day before; she apparently saw a tattoo under one eye on the gunman that she had seen the day before. That person pointed the gun at her face, threatened her life, and demanded that she hand over everything. She gave him her cell phone, cigarettes, and money. They also had her open the register, but she had not put any cash in it at that time. Windhom was standing right in front of Amin when the robbers came in, but they did not rob him. The robbers made Windhom lie on the ground, and they forced Amin into the bathroom and told her to stay there for ten to fifteen minutes. Amin heard noises for several minutes afterwards but came out after five or ten minutes after it got quiet; she then sought help. The robbers and Windhom were gone when she came out, and Windhom’s car was gone, as well.

Other evidence showed that while Amin was in the bathroom, Graddick and Bedford exited the shop followed sometime later by Windhom. A video recording showed Graddick and Bedford leaving the shop after the robbery and then showed Windhom getting into his car and driving off. Graddick and Bedford walked down the road while Windhom got in his car, drove to their location, and, according to Graddick, picked them up. Graddick testified that he rode in the front passenger seat while Bedford counted money in the back and that Windhom asked Bedford how much money they got. Windhom dropped off Bedford at his home, and he and Graddick went to Windhom’s house. Graddick specifically testified that Windhom was a part of the robbery and that he, Graddick, was not. He testified that Windhom “was the one that set it up”; but he also testified that he did not hear Windhom talk about a robbery before it happened. Graddick testified that he did not get any of the money. He testified equivocally that he thought that Bedford and Windhom took the money.

A witness who was driving near the shopping center at the time of the robbery saw a red Volvo come out of the parking lot and stop to pick up a male, who got in the back seat.

Windhom testified and admitted that he drove Graddick and Bedford to the shopping center, that he went into the A&Z shop, that the shop was robbed while he was there, that one of the robbers had a gun, that he drove off in his car and saw Graddick and Bedford walking, and that he talked to them but did not pick them up. He denied knowing about or participating in the robbery; he testified that he drove the others to the shopping center because they told him they needed to pick up Graddick’s aunt’s car, which was parked there. He also testified that he did not recognize the robbers because they had changed their clothes and were wearing masks and that when he spoke to them after the robbery, he demanded to know what they were doing. But he admitted that he never called the police to report a robbery. He told an investigating officer that the gun belonged to Graddick.

1. We review the case “under the standard espoused in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict.” (Citation omitted.) Mack v. State, 272 Ga. 415, 416-417 (1) (529 SE2d 132) (2000). Armed robbery requires proof of intent to commit theft and taking property from another using an offensive weapon:

A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.

OCGA § 16-8-41. Here, evidence was presented showing that Windhom planned the robbery, drove the robbers to the scene, supplied the weapon, functioned as a lookout, drove the getaway vehicle, and inquired about the proceeds of the crime. The evidence was sufficient to show that he was a party to an armed robbery.

2. Windhom contends the trial court erred by not declaring a mistrial based on the testimony of an investigating officer. On direct examination for the State, Officer Russell testified about the contents of a statement that Windhom made to the officers investigating the crime. As a part of his testimony, Russell testified about statements he made to Windhom at that time. One such statement was that based on the way that Windhom and the robbers acted during the robbery, the victim (and possibly the officers themselves) believed that the robbers and Windhom had acted in concert. The full statement was:

We told him the white female employee, Melissa Ann Amin, told us that the robbers, Christopher and Shane Bedford, laid him on the floor very gently or very easy as if they did not want to hurt him. We told him that made him [sic] believe that the three of them were together. Melissa Ann Amin believed the same thing.

Windhom objected on the ground that the statement was hearsay, which the court sustained. Windhom also moved for a mistrial and asked the court to instruct the jury that they should disregard the statement on the ground that it was improper testimony regarding whether to believe the defendant’s story and an improper invasion of the province of the jury. The court denied the motion for mistrial and denied the request for a limiting instruction. The court reasoned that the comment showed the context of the conversation and that it was not an opinion as to the believability of the defendant’s testimony.

On appeal our review is limited to the specific grounds raised in the objections at trial; other possible grounds for excluding the testimony have been waived. Mullins v. State, 280 Ga. App. 689, 692 (3) (634 SE2d 850) (2006). We review denial of a mistrial for admission of improper evidence “for abuse of discretion by examining factors and circumstances, including ‘the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.’ [Cit.]” White v. State, 268 Ga. 28, 32 (4) (486 SE2d 338) (1997).

It is true that “a witness, even an expert, can never bolster the credibility of another witness as to whether the witness is telling the truth.” (Citations and punctuation omitted.) Mann v. State, 252 Ga. App. 70, 72 (1) (555 SE2d 527) (2001). And, “Georgia law generally precludes a witness from testifying as to his or her opinion regarding an ultimate issue in the case because to do so would invade the province of the jury.” Glover v. State, 292 Ga. App. 22, 27 (4) (663 SE2d 772) (2008).

“The Supreme Court of Georgia, however, has viewed police comments during interrogations differently from sworn trial testimony.” Axelburg v. State, 294 Ga. App. 612, 616 (2) (669 SE2d 439) (2008) (error to admit several comments by officer during interrogation that he did not believe defendant’s story that he accosted the victim while sleepwalking).

In Hames v. State, [cit.] the Court distinguished interrogation comments from sworn testimony and stated that comments made in that case “appeared] to reflect only an aggressive interrogation technique designed to test the truthfulness of (the defendant’s) denial of (the requisite intent).” [Cit.] Similarly, in Rowe v. State, [cit.] the court held that “(w)hat (the defendant) characterizes as inadmissible statements by (the interrogator) regarding his theory of the case was nothing more than police questioning aimed at eliciting responses from a defendant in custody.” [Cit.] Other decisions of the Supreme Court of Georgia also emphasize the latitude given police interrogators in interviews that ultimately are admitted into evidence. [Cit.] Likewise, courts in other jurisdictions have acknowledged the need for such interrogation techniques and under certain circumstances have allowed into evidence unredacted interview statements containing such techniques. [Cits.]

Id. at 616-617 (2).

This exception, however, has limits. In Axelburg, the officer essentially asserted that he was an expert in sleepwalking and forensic interviewing, that he could tell when someone was lying, and that he thought the defendant was lying about his sleepwalking story. Id. at 618 (2). This Court held that the officer’s comments exceeded those limits:

Because the officer’s opinion on this disputed question directly addressed Axelburg’s defense, that he lacked the requisite intent to commit the offense, we do not find that allowing the jury to hear this opinion was harmless or that the limiting instruction mitigated this harm.

Id.

Here, the relevant testimony is hearsay from the victim that based on the way that Windhom and the robbers acted during the robbery, the victim and, implicitly, the officers, believed that the robbers and Windhom had acted in concert. The ultimate issue in this case is that very question. See, e.g., Fordham v. State, 254 Ga. 59, 60 (4) (325 SE2d 755) (1985) (where issue was whether defendant killed with malice or with justification, it was improper for officer to testify that there was nothing in the defendant’s statements that would justify the killing). Furthermore, unlike the interrogation comments cases, here, the testimony came in as sworn testimony, not just recorded interrogation comments; the officer was testifying live about Windhom’s statement when he added his own unsolicited recollection of the interrogation questions he asked Windhom, which included the victim’s hearsay statement. We cannot even be sure whether the officer’s testimony accurately reflected his actual “aggressive interrogation technique.” See Towry v. State, 304 Ga. App. 139, 146 (695 SE2d 683) (2010) (distinguishing sworn testimony of a trial witness from comments on a video recording of the interrogation).

Also, the victim did not testify to the same information that the officer reported. She did not testify that Windhom’s or the robbers’ behavior during the robbery made her believe that Windhom was an accomplice. In fact, she specifically denied that he did anything during the robbery to give her the impression that he was trying to help the robbers, although she did testify that the fact that he left afterwards gave her an indication that he might be involved. Even so, the officer’s testimony was not duplicative of Amin’s and therefore not duplicative of other admissible testimony.

In sum, we conclude that the evidence should not have been admitted. Without a limiting instruction, the harm was not mitigated, and given that the only direct evidence of Windhom participating in the crime was the testimony of a co-defendant who had been declared incompetent to stand for his own trial, we cannot say the error was harmless. Therefore Windhom was entitled to a mistrial. Because some of the remaining asserted errors could occur upon retrial, depending on the evidence produced at the second trial, we will address them.

3. Windhom contends the trial court erred by failing to give seven of his proposed jury charges.

[A] trial court does not err in refusing to give a requested instruction in the exact language requested where the charges given in their totality substantially and adequately cover the principles contained in the requested charge.

Massey v. State, 270 Ga. 76, 78 (4) (508 SE2d 149) (1998). See also Harrison v. State, 309 Ga. App. 454, 457 (2) (a) (711 SE2d 35) (2011).

(a) Windhom contends the court should have given his requested charge on identification because the passerby testified that a black man in a red Volvo picked up a person on the road shortly after the robbery but she was not able to identify Windhom as that man. He contends this creates an issue of fact as to whether he was the person in the red Volvo who picked up the robbers. But Windhom placed himself at the scene of the robbery, admitted that he drove a red Volvo, and even placed himself in his car after the robbery, leaving the scene and stopping to talk to one of the co-defendants, although he denied picking him up. Furthermore, the passerby did not identify Windhom as the man in the red Volvo. The jury was at liberty to consider the possibility that a second red Volvo came along after Windhom and picked up the co-defendant. As the facts were presented at the first trial, this issue did not depend on witness identification, and therefore we find no error.

(b) Windhom contends the court should have given his requested charge on the motive of a witness to testify because the jury needed the instruction to be able to evaluate the testimony of co-defendant Graddick, who had been found incompetent to stand trial and who may have been motivated to alter his testimony to favor the State’s case. But the court instructed on credibility of witnesses, the interest of a witness, impeachment, and motive of a witness. Our review of these charges shows that they substantially and adequately cover the principles contained in the requested charge.

(c) Windhom contends the court should have given his requested charge on aiding and abetting in order to show that he should not be found guilty just because he knew the two robbers or was merely present at the scene. But the trial court instructed the jury on mere presence, parties to a crime, knowledge of a crime, guilt by mere association, and grave suspicion. Our review of these charges shows that they substantially and adequately cover the principles contained in the requested charge.

(d) Windhom contends the court should have given his requested charge that mere approval of an act, not amounting to encouragement, is not in itself, standing alone, sufficient to justify a conviction. See generally Brown v. State, 250 Ga. 862 (1) (302 SE2d 347) (1983). But, at the first trial, there was no evidence that Windhom merely approved the act. He either provided the gun, operated as a lookout, and drove the getaway vehicle, as Graddick testified, or he had no idea that Graddick and Bedford were going to rob anyone, as he testified. It was up to the jury to resolve this factual issue. Where there is no evidence supporting a requested charge, it is not error to deny the request. Monsalve v. State, 271 Ga. 523, 526 (3) (519 SE2d 915) (1999).

(e) Windhom contends the court should have given his requested charge on mistake of fact, that is that the State has the burden of showing that the defendant did not act as a result of a mistake of fact. See OCGA § 16-3-5. He testified that he took the robbers to the shopping center under the mistaken belief that they simply needed a ride to pick up a car that was parked there, not to commit a robbery. In order to justify the charge, Windhom would need to be able to show some evidence that “the act or omission to act constituting the crime was induced by a misapprehension of fact.” Id.

Here, Windhom’s conviction was based on direct and circumstantial evidence. It was based on the direct evidence in the form of Graddick’s testimony that Windhom planned the crime, provided the gun, and functioned as the driver and lookout, all while knowing of the plan to rob, i.e., intent to commit theft. But the remaining evidence, most of which Windhom admitted, provided only circumstantial evidence of intent to commit theft: that he drove the robbers to the scene of the crime; that he went to the shop and received a phone call; that he was present during the robbery; that he was not robbed; and that he drove the robbers away from the scene of the crime. Without Graddick’s testimony, however, there would be no evidence that Windhom knew in advance of the plan to rob the store. And Windhom testified that the reason he drove the other two perpetrators to the shopping center was that they told him they simply needed a ride there to pick up a car; he also testified that he was surprised by the robbery and that he only spoke to the robbers afterward to ask them what they had done and why.

A mistake of fact “is a defense to a crime to the extent that the ignorance of some fact negates the existence of the mental state required to establish a material element of the crime.” Jones v. State, 263 Ga. 835, 839 (2) (439 SE2d 645) (1994). As shown, Windhom’s knowledge of a plan or intent to rob is a material element of the charge against him. If he lacked that knowledge and did not provide the gun; went to the store just to play games (which the victim acknowledged was his habit, and even Graddick seemed to corroborate at one point); and did not recognize the robbers because they were masked (which the victim confirmed as to the gunman), then he would not be guilty of armed robbery. Under that scenario, Windhom would have been duped into driving and then caught in the store that Graddick and Bedford chose to rob even though they knew Windhom was inside.

Therefore, based on the evidence at the first trial, the trial court should have given Windhom’s requested charge on mistake of fact. Although our review shows that the remainder of the jury charge fairly presented the issue to the jury such that, standing alone, it might not amount to reversible error, Price v. State, 289 Ga. 459, 460 (2) (712 SE2d 828) (2011), the better practice would be to give the charge.

Decided May 11, 2012.

Robert M. Bearden, Jr., for appellant.

Gregory W. Winters, District Attorney, Thomas C. Woody II, Assistant District Attorney, for appellee.

(f) Windhom contends the court should have given his requested charge on hindering the apprehension of a criminal as a lesser included offense. See OCGA § 16-10-50. “[T]he offense of hindering the apprehension of a criminal, see OCGA § 16-10-50, is the equivalent of the common law crime of being an accessory after the fact.” Hampton v. State, 289 Ga. 621, 622 (713 SE2d 851) (2011). And, it is not a lesser included offense of the principal crime but a separate offense. See id.; Vergara v. State, 287 Ga. 194, 198 (3) (a) (695 SE2d 215) (2010); Hill v. State, 221 Ga. 65, 67 (6) (142 SE2d 909) (1965).

(g) Finally, Windhom contends the court should have given his requested charge on opinion evidence based on the officer’s improper testimony addressed in Division 2, herein. Because that aspect of the officer’s testimony will be inadmissible at the second trial, this enumeration is now moot.

4. In his final enumeration of error, Windhom contends that his sentence of 20 years to serve amounts to cruel and unusual punishment. But given that a second trial will take place, we need not address this enumeration.

Judgment reversed and case remanded for new trial.

Barnes, P. J., and McFadden, J., concur.


text:
    A12A0724.
    EVANS v. THE STATE.
    (729 SE2d 31)
   MlKELL, Presiding Judge.

After a bench trial, Phillip Evans was found guilty of child molestation and public indecency. He appeals from the denial of his motion for new trial, challenging the sufficiency of the evidence. Finding no error, we affirm.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” So viewed, the evidence shows that Edward Green drove to an Office Max shopping center with his 13-year-old daughter, M. G. While her father went into a store, M. G. waited in the car in the front passenger seat. Noticing M. G. in the car, Evans exposed himself to her by pressing his genitals against the passenger window of the car and then fled to another area of the parking lot. Although M. G. did not see Evans’ face, she noticed that he was wearing a black and red plaid shirt, a green jacket and jeans. When Green came back to the car, M. G. was crying and told him what she saw. Green called the police and, while waiting for them to arrive, he confronted Evans in the parking lot. Evans then ran screaming into the Office Max, where an office manager overheard Evans telling his companion “[t]ell them I was with you.” The responding police officer testified that Evans was visibly nervous when the officer asked him to step outside, and that Evans had brown, dirty smudges on his pants consistent in color and location with the dirt on Green’s car near the passenger window.

In his two enumerations of error, Evans contests the sufficiency of the evidence, pointing to what he claims are weaknesses and inconsistencies in the testimony. However, it is the sole province of the trier of fact to resolve conflicts in the testimony. This Court “does not weigh the evidence or determine witness credibility.” Rather, “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the [trier of fact’s] verdict will be upheld.” Reviewing the evidence in the light most favorable to the verdict, we find that any rational trier of fact could have found Evans guilty beyond a reasonable doubt of child molestation and public indecency.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

Decided May 11, 2012.

Robert H. Alexander III, for appellant.

Patrick H. Head, District Attorney, John R. Edwards, Maurice Brown, Assistant District Attorneys, for appellee.

       OCGA §16-6-4 (a)(1).

       OCGA §16-6-8 (a) (2).

       (Punctuation and footnote omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).

        Pittman v. State, 243 Ga. App. 564, 565 (1) (533 SE2d 769) (2000).

       (Citations omitted.) Bierria v. State, 232 Ga. App. 622, 624 (1) (502 SE2d 542) (1998).

       (Citation and punctuation omitted.) Pittman, supra.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Childs v. State, 177 Ga. App. 257, 259 (2) (339 SE2d 311) (1985); Tilley v. State, 197 Ga. App. 97, 98 (1) (397 SE2d 506) (1990).


author: PHIPPS, Presiding Judge.

text:
    A12A0003.
    LABREW v. THE STATE.
    (729 SE2d 33)
   PHIPPS, Presiding Judge.

Ricky LaBrew appeals the denial of his motion for an out-of-time appeal, raising claims of error pertaining to sentencing. For reasons that follow, we affirm.

LaBrew’s judgment of conviction and sentence stemmed from his pleading guilty to 56 counts of sexual exploitation of children. In so pleading, LaBrew expressly acknowledged that each count carried a five- to twenty-year sentence of imprisonment; additionally, he acknowledged that the trial judge was authorized to determine what punishment fit his crimes and that the judge was not bound by any recommendation by either the state or the defense. After accepting LaBrew’s guilty pleas, the court sentenced him in the aggregate to serve 30 years in confinement. Sixty days later, LaBrew filed a notice of appeal; the resulting direct appeal was dismissed for lack of jurisdiction.

LaBrew then sought from the trial court an out-of-time appeal. In his motion, he recounted what had occurred during the 60 days after entry of the judgment: LaBrew had filed what was captioned a ‘Motion for Reconsideration,” which post-conviction motion asserted that his punishment was too harsh, asked that his sentences be modified and reduced, and requested a hearing thereon. The state had then opposed the “Motion for Reconsideration,” countering that no such change was warranted, but claiming entitlement to a hearing pursuant to OCGA § 17-10-1 (f) prior to the entry of any order modifying or reducing a sentence. And thereafter, the trial court had denied LaBrew’s motion without a hearing.

Having set forth that procedural background, LaBrew gave two “grounds” for granting his motion for an out-of-time appeal:

that the Defendant was denied a hearing for the Motion for Reconsideration which was recognized by the State as a Motion for Modification of Sentence pursuant to OCGA § 17-10-1 (f); and that the Defendant’s counsel was ineffective by not entitling the Motion for Reconsideration as a Motion for Modification of Sentence.

In its order thoroughly addressing the foregoing “grounds,” the trial court denied LaBrew’s motion for an out-of-time appeal. We review a trial court’s denial of a motion for out-of-time appeal for an abuse of discretion.

It is well established that a criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea, and an appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record. The ability to decide the appeal based on the existing record thus becomes the deciding factor in determining the availability of an out-of-time appeal when the defendant has pled guilty.

Moreover, where, as here, the “issue raised by a defendant in a motion for out-of-time appeal can be resolved against him based upon the existing record, there is no error in denying the motion.”

1. The trial court did not err in rejecting LaBrew’s ground concerning entitlement to a hearing pursuant to OCGA § 17-10-1 (f). Even construing, for the sake of argument, LaBrew’s motion captioned “Motion for Reconsideration” as a motion pursuant to OCGA § 17-10-1 (f), LaBrew has failed to show that he was entitled to a hearing thereon. That Code provision states, in pertinent part:

Within one year of the date upon which the sentence is imposed, or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later, the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed. Prior to entering any order correcting, reducing, or modifying any sentence, the court shall afford notice and an opportunity for a hearing to the prosecuting attorney. Any order modifying a sentence which is entered without notice and an opportunity for a hearing as provided in this subsection shall be void.

Decided May 15, 2012

Here, the trial court entered no order “correcting, reducing, or modifying any sentence” imposed upon LaBrew. As the trial court explained in its order denying LaBrew’s motion for an out-of-time appeal, the aggregate “thirty year period of incarceration imposed was within the law’s statutory parameters, and did not need to be corrected.”

Consequently, LaBrew’s reliance upon OCGA § 17-10-1 (f) as providing for an out-of-time appeal is misplaced.

2. It follows then that LaBrew’s second ground — that his counsel was ineffective by not entitling the Motion for Reconsideration as a “Motion for Modification of Sentence” —• was unavailing as a basis for an out-of-time appeal. The trial court correctly rejected that ground.

3. Finally, LaBrew asserts other arguments to this court that he claims entitles him to an out-of-time appeal. But because he failed to present those arguments to the trial court, they are not properly before us.

Judgment affirmed.

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

McNeill Stokes, for appellant.

Samuel S. Olens, Attorney General, Kimberly L. Schwartz, Laura D. Pfister, Assistant Attorneys General, for appellee.

       OCGA§ 16-12-100 (b).

       OCGA § 16-12-100 (g) (1) (any person who violates OCGA § 16-12-100 (b) “shall be punished by imprisonment for not less than five nor more than 20 years”).

       OCGA § 5-6-38 (a) (a notice of appeal must he filed within 30 days after entry of appealable decision or judgment complained of); see Cody v. State, 277 Ga. 553 (592 SE2d 419) (2004) (the proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court).

        Brown v. State, 290 Ga. 321 (1) (720 SE2d 617) (2012).

       Id. (citations and punctuation omitted).

       Id. at 321 (2) (citation omitted); see Gibson v. State, 290 Ga. 516 (1) (722 SE2d 741) (2012) (convicted after pleading guilty, appellant challenging denial of his motion for out-of-time appeal could not prevail based on “allegations that [could] be resolved against him based on facts in the record”); Golden v. State, 299 Ga. App. 407 (683 SE2d 618) (2009).

       Although LaBrew has alleged that his punishment was too harsh, he has not alleged that any sentence imposed upon him was void. See Crumbley v. State, 261 Ga. 610,611 (1) (409 SE2d 517) (1991) (sentence is void if it imposes punishment the law does not allow).

       See Rowland v. State, 264 Ga. 872, 875 (2) (452 SE2d 756) (1995) (explaining that a criminal defendant is entitled to an out-of-time appeal, upon a showing that he lost his right to appellate review of his conviction due to error of counsel); see also Clemons v. State, 288 Ga. 445, 447 (4) (704 SE2d 762) (2011) (an out-of-time appeal is the remedy where a right of direct appeal has been frustrated as a result of ineffective assistance of counsel).

        Anderson v. State, 251 Ga. App. 785, 786 (554 SE2d 811) (2001) (appellate review cannot be enlarged or transformed through switching, shifting, or mending one’s hold; function of Court of Appeals is to review errors of the lower courts, not to review assertions made by appellant and brought directly to this court); Daniels v. State, 244 Ga. App. 522, 523 (536 SE2d 206) (2000) (refusing to address issues which were not raised in the trial court).