author: Blackwell, Judge.

text:
    A11A1989.
    LEWIS v. CAPITAL BANK.
    (717 SE2d 481)
   Blackwell, Judge.

Capital Bank secured a judgment against Sidney Lewis and then commenced garnishment proceedings in Catoosa County against Tommy Lewis, the proprietor of a paint and body shop at which, Capital Bank believed, Sidney was employed. Capital Bank caused a garnishment summons to be served upon Tommy, but the summons was addressed to another business, not to Tommy. When Tommy did not answer this summons, Capital Bank moved for a default judgment against Tommy, and the court below entered one. A few months later, Tommy moved to set aside the default judgment, asserting that he never was served with proper process and that the court, therefore, never obtained jurisdiction of his person. The court below denied this motion, and Tommy appeals. We agree with Tommy that the court was without jurisdiction of his person and should have set aside the default judgment. Accordingly, we reverse the judgment below.

In January 2010, Capital Bank commenced garnishment proceedings against Tommy by filing an affidavit of continuing garnishment, in which Capital Bank averred that it had secured a judgment of approximately $40,000 against Sidney and that Tommy, doing business as “2-A Paint & Body,” was an employer of Sidney subject to garnishment, although the affidavit referred to Tommy by name only in its caption. Capital Bank also prepared a summons of continuing garnishment, and although the summons, like the affidavit, identified “Tommy Lewis d/b/a 2-A Paint & Body” in its caption as the garnishee, the summons actually was addressed to “Lewis Automotive Enterprises, Inc., Garnishee,” a corporation then registered to do business in Georgia. On January 26, the sheriff made personal service of both the affidavit and the summons upon Tommy, and a return of service was filed with the court on the following day. When Tommy did not answer the summons, Capital Bank moved for a default judgment, and on May 14, the court below granted the motion and entered a default judgment against Tommy for the full amount of the judgment that Capital Bank had secured earlier against Sidney, plus interest and court costs.

Nearly six months later, Tommy appeared specially and filed a motion to set aside the default judgment under OCGA § 9-11-60 (d) (1), asserting that the judgment could not stand because, insofar as Capital Bank failed to serve him with proper process, the court never obtained jurisdiction of his person. Capital Bank advanced two arguments in opposition to this motion. First, a motion to set aside a default judgment in continuing garnishment proceedings, Capital Bank said, must be brought under OCGA § 18-4-115 (b), and OCGA § 9-11-60 has no application, it argued, in garnishment proceedings. Because OCGA § 18-4-115 (b) requires a garnishee to pay accrued court costs, which Tommy apparently did not do, Capital Bank urged that Tommy had failed to satisfy the statutory conditions precedent for having the judgment set aside. Second, the summons that was personally served upon Tommy identified him as the garnishee in its caption and substantially complied with the requirements for a garnishment summons, which, Capital Bank said, is enough to give the court jurisdiction of his person. The court below denied the motion to set aside in a two-sentence order that does not identify the precise grounds upon which the court based its decision. Tommy filed an application for discretionary review with this Court, see OCGA § 5-6-35 (a) (4), which we granted, and Tommy now appeals from the order denying his motion to set aside.

1. We consider first whether Tommy was entitled to seek relief from the default judgment under OCGA § 9-11-60 (d) (1) or whether he was required instead, as Capital Bank contends, to bring his motion under OCGA § 18-4-115 (b). The Civil Practice Act, of which OCGA § 9-11-60 is a part, applies in garnishment proceedings “except as otherwise provided in” Title 18, Chapter 4 of the Code, the provisions of which specifically govern such proceedings. See OCGA § 18-4-1. Capital Bank contends that OCGA § 18-4-115 (b) otherwise makes provision for setting aside a default judgment in a continuing garnishment case and that OCGA § 9-11-60, therefore, never can be applied with respect to such a judgment. We do not agree.

By its plain terms, OCGA § 18-4-115 (b) applies only when a garnishee seeks to obtain relief from a “default judgment entered as provided in [OCGA § 18-4-115 (a)],” and the entry of a default judgment “as provided in [OCGA § 18-4-115 (a)]” presupposes that the court has obtained jurisdiction of the person of the garnishee. See Wilson v. Passmore, 240 Ga. 716, 717 (2) (242 SE2d 124) (1978). A court obtains jurisdiction of the person of the garnishee, of course, only after he has been served with proper process or waives service of process by appearing voluntarily or some other affirmative act. Williams v. Fuller, 244 Ga. 846, 849 (3) (262 SE2d 135) (1979) (“Jurisdiction of the person is the power of a court to render a personal judgment. . . and is obtained by appearance or by serving the proper process in the manner required by law on persons or parties subject to be sued in a particular action.”) (citation and punctuation omitted). See also Murphy Bros., Inc. v. Michetti Pipe Stringing, 526 U. S. 344, 350 (II) (119 SC 1322, 143 LE2d 448) (1999) (“In the absence of service of process (or waiver of service by the defendant), a court ordinarily may not exercise power over a party the complaint names as defendant.”); ARC Security v. Massey Business College, 221 Ga. App. 489, 491 (1) (471 SE2d 569) (1996) (garnishee entitled to have default judgment set aside for insufficient service of process). Moreover, a default judgment can be entered pursuant to OCGA § 18-4-115 (a) only when the garnishee fails to timely file an answer, and by the plain terms of OCGA § 18-4-113 (a) (1), the time in which an answer must be filed is triggered by the service of a summons of continuing garnishment.

Accordingly, a default judgment is “entered as provided in [OCGA § 18-4-115 (a)],” we think, only after the garnishee has been served with proper process or has waived service of process, and OCGA § 18-4-115 (b) provides relief, therefore, only when process has been served or waived. When a court enters a default judgment in a continuing garnishment proceeding in which the garnishee has not been served with a summons of continuing garnishment and the court has not obtained jurisdiction of the person of the garnishee, the default judgment is not one “entered as provided in [OCGA § 18-4-115 (a)],” and OCGA § 18-4-115 (b) affords no relief. In such a case, the garnishee is entitled to bring a motion to set aside the default judgment under OCGA § 9-11-60 (d) (1).

2. We turn next to the merits of the motion to set aside the judgment below. As we already have explained, the entry of a default judgment in garnishment proceedings, as in any other kind of case, requires that the court have obtained jurisdiction of the person of the garnishee, and that requires that the garnishee have been served with proper process or have waived this requirement. Here, nothing in the record suggests that Tommy appeared voluntarily in the garnishment proceedings or otherwise waived service of process prior to the entry of the default judgment. The question, then, is whether he was served with proper process. In clear, unambiguous, and mandatory terms, OCGA § 18-4-113 (a) identifies the relevant feature of the process with which a garnishee in a continuing garnishment case must be served: “The summons of continuing garnishment shall be directed to the garnishee.” (Emphasis supplied.) Capital Bank contends that the summons in this case substantially complied with this requirement because, although it was directed to another, it identified Tommy as the garnishee in the caption and was served together with the affidavit of continuing garnishment, which also identified Tommy as the garnishee. We disagree.

Even assuming that substantial compliance is enough, we do not think the summons in this case substantially complied with the requirement that the summons be directed to the garnishee. This is not a case in which the summons merely misspelled the name of the garnishee or identified the garnishee by a name substantially similar, but not identical, to his actual name, such that one could readily ascertain that the garnishee was, in fact, the person to whom the summons was directed. Compare Bailie Furniture Co. v. Hotel Richmond Inc., 57 Ga. App. 281, 281 (1) (195 SE 216) (1937) (“A summons of garnishment issued and directed to ‘Hotel Richmond Incorporated’ is properly issued and directed even though the corporate name of the garnishee is ‘Hotel Richmond Inc.’ ”). Instead, the summons in this case was directed to “Lewis Automotive Enterprises, Inc.,” a then-existing corporation that is legally separate and distinct from “Tommy Lewis d/b/a 2-A Paint and Body.” The summons here simply was directed to the wrong person, and it was this person, not Tommy, whom the summons commanded by its plain terms to “hold immediately all property, money, wages, except what is exempt, belonging to [Sidney]” and to file an answer within 45 days of service and additional answers every 45 days thereafter. That the summons was directed to a real corporation with which Sidney once had been employed and that maintained its principal office at the same address as that at which Tommy was served with the summons only compounds the failure of Capital Bank to direct the summons to the proper person and renders the summons more likely to confuse a reasonable recipient. For these reasons, we think this summons does not comply — strictly, substantially or otherwise — with the requirement that the summons itself be directed to the garnishee.

Although Tommy was identified as the garnishee in the caption of both the summons and the affidavit of continuing garnishment, his name appears nowhere else in either document. Even if the mention of his name in these captions was adequate to give him actual notice of the commencement of the garnishment proceedings against him, that the garnishee may have received actual notice “does not obviate the need for proper service [of process].” See KMM Indus, v. Professional Placement Assn., 164 Ga. App. 475, 476 (297 SE2d 512) (1982); see also Heard v. Hopper, 233 Ga. 617, 618 (2) (212 SE2d 797) (1975) (“With respect to pleadings and other matters which must be served upon an adversary party, it has been uniformly held that it is immaterial that the party actually received the pleading or other matter where service was otherwise improper.”). Accordingly, the summons was defective, its service upon Tommy did not confer jurisdiction of his person upon the court, and the court ought to have granted the motion to set aside. We, therefore, reverse and remand for the court below to set aside the default judgment.

Decided September 27, 2011.

Grant, Konvalinka & Harrison, John P. Konvalinka, David C. Higney, for appellant.

Gearhiser, Peters, Cavett, Elliott & Cannon, Gary L. Henry, for appellee.

Judgment reversed.

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

       According to documents in the record, Lewis Automotive Enterprises, Inc. was administratively dissolved in September 2010. It apparently maintained its principal office at the same street address as that listed in the summons for Tommy, and it appears that Sidney once was employed with Lewis Automotive Enterprises, Inc. Nothing in the record, however, indicates that Tommy personally is the successor in interest to Lewis Automotive Enterprises, Inc. or otherwise is responsible for its liabilities and obligations, such that an action against the corporation would amount to an action against him.

       The order reads: “On March 9, 2011, the Court held a hearing on the Motion to Set Aside Order Granting Default Judgment (hereinafter “Motion”) filed by Garnishee. After careful review and consideration of the entire record in this case and the argument of counsel and for other good cause, the Court DENIES the Motion.”

       OCGA § 18-4-91 governs motions to modify default judgments in post-judgment garnishment proceedings that are not continuing in nature, but it is similar enough to OCGA § 18-4-115 (b) to cause us to think that cases construing OCGA § 18-4-91 might help us understand OCGA § 18-4-115 (b). In Southeast Grading v. Grissom-Harrison Corp., 171 Ga. App. 298, 299 (1) (319 SE2d 121) (1984), we said that “OCGA § 18-4-91 comes into play only after a garnishee fails or refuses to file a timely answer to the summons of garnishment and a default judgment is subsequently entered against the garnishee.” In two other cases, we have treated motions under OCGA § 9-11-60 to set aside default judgments in garnishment proceedings and motions under OCGA § 18-4-91 to modify such judgments as separate and distinct kinds of motions. See Jova Daniels Busby, Inc. v. Greenforest Community Baptist Church, 240 Ga. App. 419, 420-421 (1) (523 SE2d 629) (1999) (affirming trial court’s decision to treat motion as both a motion to set aside default judgment under OCGA § 9-11-60 (d), which the trial court denied, and a motion to modify default judgment under OCGA § 18-4-91, which the trial court granted); Boston Sea Party of Atlanta v. Bryant Lithographing Co., 146 Ga. App. 294, 295-297 (246 SE2d 350) (1978) (affirming denial of motion to set aside default judgment in continuing garnishment case and reversing grant of separate motion to modify default judgment under OCGA § 18-4-91). These cases are consistent with our conclusion today that OCGA § 18-4-115 (b) leaves some room for OCGA § 9-11-60 (d) (1) to apply to default judgments rendered in continuing garnishment cases. See also Homemakers, Inc. of Atlanta v. GAC Finance Corp., 135 Ga. App. 242, 242 (217 SE2d 475) (1975) (remanding for trial court to conduct evidentiary hearing on motion under OCGA § 9-11-60 (d) to set aside default judgment in garnishment proceedings); Chase Manhattan Bank v. LaFray, 258 Ga. App. 183, 184 & n.3 (573 SE2d 435) (2002) (noting that trial court set aside default judgment in related garnishment proceedings upon motion brought under OCGA § 9-11-60 (d)).

       Capital Bank relies on Gainesville Feed & Poultry Co. v. Waters, 87 Ga. App. 354 (1) (73 SE2d 771) (1952), in support of its argument that substantial compliance is enough. But our decision in Gainesville Feed was based on the former Code Ann. § 81-220, which specifically was repealed by the enactment of the Civil Practice Act in 1966. Ga. L. 1966, p. 609, § 135 (1). And a recent Supreme Court of Georgia case specifically states that strict compliance with statutory requirements concerning notice of garnishment proceedings to a judgment debtor is required. Cook v. NC Two, LP, 289 Ga. 462 (712 SE2d 831) (2011).


source: Caselaw Access Project

author: MIKELL, Judge.

license: Public Domain

text:
    A10A0177.
    LEE v. THE STATE.
    (717 SE2d 310)
    Decided September 29, 2011.

      Stephen T. Maples, for appellant.

      Robert Stokely, Solicitor-General, Natalie Ashman, Amy B. God-frey, Stephen J. Tuggle, Sandra N. Wisenbaker, Assistant Solicitors-General, for appellee.
   MIKELL, Judge.

In Lee v. State, 289 Ga. 95 (709 SE2d 762) (2011), the Supreme Court affirmed in part and reversed in part this Court’s opinion in Lee v. State, 304 Ga. App. 681 (697 SE2d 221) (2010). We therefore vacate Division 2 of our earlier opinion with regard to Lee’s conviction for keeping a house of prostitution, adopt the judgment of the Supreme Court as our own, vacate the trial court’s judgment, and remand the case for proceedings not inconsistent herewith.

Judgment affirmed in part and reversed in part, and case remanded.

Smith, P. J., and Adams, J., concur.


author: DOYLE, Judge.

text:
    A11A0908.
    QUARTERMAN v. CULLUM.
    (717 SE2d 267)
   DOYLE, Judge.

Kenneth B. Quarterman filed a legal malpractice case against John M. Cullum. Quarterman appeals following the grant of summary judgment to Cullum, alleging multiple enumerations of error. For the reasons that follow, we affirm.

This case arises out of protracted litigation between Quarterman and his brother, Alan Quarterman (“Alan”), regarding the will and estate of their mother, Helen B. Quarterman (“Helen”), following her death in 1990.

On March 13, 1990, Alan, as the named executor of his mother’s estate, filed a petition to probate her last will and testament. On March 23, 1990, [Quarterman] filed a caveat to the petition alleging that his mother did not freely and voluntarily execute the will because 1) she lacked the capacity to make a will, and 2) Alan exercised undue influence over her.

Quarterman retained Cullum to represent him in the probate case in 1996. Shortly thereafter, the probate court entered a pretrial order nunc pro tunc to August 9, 1996, granting an additional 60 days from the date of the order for the parties to conduct discovery and granting Quarterman the opportunity to file a motion to depose Alan “upon [a] showing of good cause.” Cullum did not move to depose Alan until after the extended discovery period expired. On October 21, 1996, the probate court granted summary judgment to Alan, and Helen’s will was admitted to probate in solemn form. The Supreme Court of Georgia subsequently affirmed the grant of summary judgment to Alan.

On October 8, 1998, Quarterman filed a legal malpractice action against Cullum, alleging that Cullum’s failure to timely file a motion to depose Alan resulted in the probate court’s failure to consider such evidence in its decision to grant summary judgment to Alan and that such evidence would have created a question of fact and precluded summary judgment. Cullum filed an answer and a counterclaim for unpaid fees in November 1998. With the exception of a certificate of service indicating service of discovery requests to Quarterman by Cullum in April 1999, nothing further was filed in the case until August 13, 2003, when Quarterman filed a motion for a pretrial conference and a pauper’s affidavit. On September 2, 2003, Quarterman filed a motion for an order directing the clerk to refund his $99 filing fee and authorizing him to proceed in forma pauperis with all future filings on the case. The court granted Quarterman’s motion to proceed in forma pauperis, but denied his motion for a refund of the filing fee. On May 3, 2006, after the parties failed to appear for docket calendar call, the trial court entered an order dismissing the case, including Cullum’s counterclaim, without prejudice.

On November 1, 2006, Quarterman refiled his malpractice claim against Cullum and attached thereto an expert affidavit and a pauper’s affidavit. Cullum filed a motion to dismiss the renewal action, arguing that Quarterman’s expert affidavit was insufficient, and the trial court denied the motion. In April 2010, Cullum also filed a motion for summary judgment, which the trial court granted following oral argument, finding that Quarterman had failed to demonstrate that Cullum breached the applicable standard of care or that any such breach was the proximate cause of Quarterman’s injuries. Quarterman filed a timely notice of appeal on December 16, 2010.

1. Quarterman argues that the trial court erred by denying his motion for a refund of his $99 filing fee paid in his initial legal malpractice action after granting his right to proceed in forma pauperis. Quarterman failed to appeal this ruling in the original case, and we have no jurisdiction to consider it in this appeal of the renewal action. Pretermitting our lack of jurisdiction, however, Quarterman presents no basis for relief.

OCGA § 9-15-2 (a) (1) provides that

[w]hen any party, plaintiff or defendant... is unable to pay any deposit, fee, or other cost which is normally required in the court, if the party shall subscribe an affidavit to the effect that because of his indigence he is unable to pay the costs, the party shall be relieved from paying the costs and his rights shall be the same as if he had paid the costs.

Here, Quarterman paid the $99 filing fee at issue on October 8, 1998. Five years later, he filed a motion to obtain an interlocutory order directing the clerk to refund the filing fee and permitting him to proceed in forma pauperis with all future filings. The trial court granted the motion to proceed in forma pauperis, but denied his motion for a refund of the filing fee. Quarterman has failed to provide any authority to support his contention that a trial court is required to direct the clerk to refund a filing fee paid before the filing of a pauper’s affidavit, and we are aware of none.

2. Quarterman contends that the trial court erred by denying his motions to continue the summary judgment oral argument because the trial court previously granted a motion for continuance filed by Cullum and because it “is standard operating procedure for a trial court to grant a minimum of one motion for a continuance on something as final as a summary judgment hearing.” We find no basis for reversal.

A motion for continuance is addressed to the sound discretion of the trial court, and this [CJourt will not interfere unless it is clearly shown that the court abused its discretion. The trial judge, in the exercise of his discretion to grant or refuse a continuance, has to consider the facts and circumstances of each case to determine what the ends of justice require. Broad discretion must be granted trial courts on matters of continuances.

On July 2, 2010, Quarterman filed a motion for a 90-day continuance of the summary judgment oral argument scheduled for July 8, 2010, citing various personal circumstances that had prevented him from preparing for the oral argument; he filed a second motion to continue the oral argument on July 8, 2010. At the time Quarterman filed the motions, the matter had been pending for almost twelve years, and Cullum’s summary judgment motion had been pending for over two months. We find Quarterman’s arguments on appeal unpersuasive. Given the duration of this litigation and the relatively straightforward nature of the claims, we find no abuse of discretion in the denial of Quarterman’s motions to continue the oral argument.

3. Next, Quarterman argues that evidence in the record indicating that he “is a severely disabled elderly litigant . . . makes it obligatory on the part of the court to make mention of this fact since it affords to Appellant rights under the Americans With Disabilities Act [(‘ADA’),] which is a federal law.” Quarterman does not, however, allege that the trial court in any way abridged or violated his rights under the ADA. Even had he done so, “the methods of enforcement and remedies available to one whose rights have been infringed under the ADA are set forth in 42 USC § 12188 and 42 USC § 2000a-3. Those statutory remedies do not include [reversal of the grant of summary judgment].” And, assuming that a trial court complies with the mandates of the ADA, it is under no obligation to “mention” a litigant’s disability.

4. Quarterman argues that the trial court erred by denying his motion to reopen discovery for 90 days, which he filed on July 8, 2010, the day of the oral argument. In the brief filed in support of the motion, Quarterman explained that he was disabled, that the trial court had previously granted Cullum’s request to reopen discovery, and that he was trying to retain counsel. Quarterman did not, however, detail any discovery that he needed to obtain.

“A trial court has wide discretion to shorten, extend, or reopen the time for discovery, and its decision will not be reversed unless a clear abuse of that discretion is shown.” Given the length of time the case had been pending and Quarterman’s failure to specify the evidence he hoped to obtain during discovery, we find no abuse of discretion in the trial court’s denial of his motion to reopen discovery.

5. Quarterman further contends that the trial court erred by ruling on the summary judgment motion before his appeal of the order denying his motion to reopen discovery had commenced. This enumeration is without merit.

This Court denied Quarterman’s application for interlocutory appeal of the order denying his motion to reopen discovery. And, as we held in Division 4, the trial court did not abuse its discretion by denying the motion to reopen discovery.

6. In his final enumeration, Quarterman contends that the trial court erred by granting summary judgment to Cullum. We disagree.

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. A de novo 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 nonmo-vant.

To prevail on a legal malpractice claim, a plaintiff must prove that (1) he employed the attorney; (2) the attorney “failed to exercise ordinary care, skill, and diligence”; and (3) this failure was the proximate cause of damages to the client.

To establish proximate cause, [Quarterman] must show that but for [Cullum’s] error, the outcome would have been different; any lesser requirement would invite speculation and conjecture. [The defendant] is entitled to summary judgment if he shows that there is an absence of proof adduced by [the plaintiff] on the issue of proximate cause.

Pretermitting whether Cullum was negligent, Quarterman “cannot prevail on his negligence claim because he failed to put forth evidence to create a jury issue on causation.”

In support of his claim, Quarterman filed the expert affidavit of Herb Shafer, which stated:

The failure of John M. Cullum, Esquiref,] to comply with the [probate c]ourt’s order, vis-a-vis discovery, has doubtlessly prejudiced the Plaintiff, Kenneth B. Quarterman. Mr. Cullum’s non-feasance, i.e., noncompliance with the Court’s order, is inexcusable and actionable.

In response, Cullum filed his own affidavit, in which he averred:

The [p] róbate [c]ourt ruled in the pretrial order that discovery would be allowed on a limited basis for sixty days, and that caveator could only depose Alan S. Quarterman upon a showing of good cause. No good cause existed to take the deposition of Alan S. Quarterman between August 9, 1996 and October 25, 2006, nor has there been any since. At all times during my representation of Kenneth Quarterman as his attorney in the case of his caveat to his mother’s will I exercised the due and ordinary care, skill, and diligence required of me as an attorney. . . .

As the trial court found, construing Shafer’s affidavit in Quar-terman’s favor,

there is evidence that . . . Quarterman might have been prejudiced in some manner by the failure to depose Alan. . . . However, . . . Quarterman has not produced any evidence regarding topics that would have been addressed during the deposition [or] what testimony . . . Quarterman intended to elicit during the deposition. There is also no evidence or even any arguments [regarding] how the taking of this deposition would have changed the outcome of the underlying case and made it more favorable to . . . Quarter-man. In short, there is no evidence that . . . Quarterman’s injuries could have been avoided based on . . . Cullum moving the [p]robate [c]ourt and taking the deposition of Alan. . . . Instead, . . . Quarterman’s entire causation argument is based on mere speculation and conjecture.

Decided September 8, 2011

Reconsideration denied October 3, 2011

Kenneth B. Quarterman, pro se.

John M. Cullum, pro se.

“[M]ere speculation and conjecture! ] cannot serve as the basis for establishing proximate cause.” Accordingly, the trial court properly granted summary judgment to Cullum.

Judgment affirmed.

Ellington, C. J., and Miller, P. J., concur.

       Some of the relevant facts are set forth in Quarterman v. Quarterman, 268 Ga. 807 (493 SE2d 146) (1997).

       Id. at 807. Helen’s will “dividetd] her property between her sons in equal shares based upon her valuation.” Id. at 808 (2).

       See id.

       (Punctuation omitted.) Gipson v. State, 297 Ga. App. 413, 415 (2) (677 SE2d 431) (2009).

       See Belger v. Exchange Bank, 148 Ga. App. 275 (251 SE2d 22) (1978).

       42 USC § 12101 et seq.

        Turner v. Masters, 304 Ga. App. 855, 858 (2) (698 SE2d 346) (2010).

       The record contains an order extending discovery through September 1, 2007; there do not appear to be any further extensions. Thus, discovery apparently expired in 2007, almost three years before Quarterman sought to reopen the discovery period.

       We see no such order in the record. Presumably, Quarterman refers to the May 7, 2007 order granting Cullum’s request to extend discovery until September 1, 2007.

       (Punctuation omitted.) Lawrence v. Direct Mtg. Lenders Corp., 254 Ga. App. 672, 673 (1) (563 SE2d 533) (2002).

       See id. at 673-674 (1).

       See OCGA § 9-11-56 (c).

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

       (Punctuation omitted.) Guerrero v. McDonald, 302 Ga. App. 164, 166 (1) (690 SE2d 486) (2010).

       (Punctuation omitted.) Id.

       Id.

       (Punctuation.omitted.) Id. at 167 (1).


author: MCFADDEN, Judge.

text:
    A11A1230.
    BROOKS v. GWINNETT COMMUNITY BANK.
    (717 SE2d 647)
   MCFADDEN, Judge.

In this suit on promissory notes and personal guaranties of the notes, William Brooks appeals from the trial court’s order granting partial summary judgment to Gwinnett Community Bank as to Brooks’ affirmative defense that he was released as a guarantor of the notes. Because such a release must be in writing and there is no evidence of a written release, we affirm.

“ ‘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. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.’ [Cit.]” Core LaVista, LLC v. Cumming, 308 Ga. App. 791 (709 SE2d 336) (2011). So construed, the evidence shows that Gwinnett Community Bank loaned $3,195,400 to International Hospitality, LLC, which executed a promissory note in that amount. International Hospitality obtained another loan from the bank and executed another promissory note in the amount of $400,000. Brooks and other members of International Hospitality executed a guaranty, personally guaranteeing repayment of the indebtedness of the company up to $3,926,000. Brooks eventually sold his interest in International Hospitality and other entities to Giorgio Medici, another member of International Hospitality, for $1.7 million. The agreement between Medici and Brooks noted that Brooks had personally guaranteed loans to the company and that Medici would take action “to have Brooks released of any and all personal guaranties.” Brooks called bank loan officer Joseph Godfrey, who said that the bank would release Brooks from his personal obligations arising from his involvement with International Hospitality.

International Hospitality subsequently defaulted on the loans, and Gwinnett Community Bank filed suit on the promissory notes and guaranty against International Hospitality and the individual guarantors. Brooks answered, asserting, among other things, the affirmative defenses of accord and satisfaction and that he had been released from his guaranty. Gwinnett Community Bank moved for partial summary judgment as to those affirmative defenses, and the trial court granted the motion. Brooks appeals, arguing that there are genuine issues of material fact as to whether he was released from the guaranty. The argument is without merit.

As Brooks states in his brief, a release from a promise to answer for another’s debt must be in writing. Indeed,

[plursuant to OCGA § 13-5-30 (2), the personal guarantee agreement had to be and was executed in writing. As the contract of guaranty had to be in writing under the Statute of Frauds, “so likewise, under the general rule, any proposed modification thereof, to be effective, must also have been in writing.” [Cits.]

Hendricks v. Enterprise Financial Corp., 199 Ga. App. 577, 579 (2) (405 SE2d 566) (1991). Thus, “[p]arol evidence is not admissible to vary or contradict the unconditioned promise to pay provided in a note or a guaranty agreement. The cases are legion that a complete and unambiguous instrument cannot be varied or contradicted by reliance upon inconsistent parol statements.” (Citations and punctuation omitted.) Kennerly v. First Colony Bank, 205 Ga. App. 352 (1) (422 SE2d 243) (1992).

Decided October 3, 2011.

Ichter Thomas, Cary Ichter, S. Renee Huskey, for appellant.

Stites & Harbison, J. D. Humphries III, Ron C. Bingham II, Joseph H. Turner, Jr., Enis T. Brown III, for appellee.

Here, the unambiguous contract of guaranty provides, m pertinent part:

It is fully understood that until each and every one of the covenants and agreements of this Guaranty is fully performed, the [guarantors’] undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this provision of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor. . . . This is a continuing Guaranty and shall remain in full force and effect as to the [guarantors] until the liabilities and other amounts due under this Guaranty have been paid in full.

“It is clear from the evidence of record that no written agreement was ever entered between [Brooks and Gwinnett Community Bank] releasing, canceling, or otherwise terminating [Brooks’ continuing] personal guarantee agreement.” Hendricks, supra. Brooks cannot now seek to vary the terms of the clear and unambiguous contract of guaranty by reliance on inconsistent oral statements. See Kennerly, supra.

Contrary to Brooks’ claim, certain internal bank documents do not constitute a written modification of the contract of guaranty. Rather, as Godfrey, the bank loan officer, explained in his affidavit, they are nothing more than an expression of his personal opinion that since Brooks had sold his interest in International Hospitality, he was thereby released as a guarantor. That lay opinion, even if reduced to writing, simply does not include all the essential terms needed to create a binding written contract. See generally Harris v. Baker, 287 Ga. App. 814, 816-817 (652 SE2d 867) (2007). Accordingly, the grant of partial summary judgment to the bank on the defense of release was not erroneous.

Judgment affirmed.

Phipps, P. J., and Mikell, J., concur.


author: Doyle, Judge.

text:
    A11A0776.
    NASA v. BROWN et al.
    (717 SE2d 310)
   Doyle, Judge.

Prison inmate Susa Nasa sought to commence a pro se civil action under 42 USC § 1983 against two correctional officers (listed as “Cert Officer N. Brown” and “Officer McClendon”). The superior court denied his request to proceed in forma pauperis and directed the clerk not to file the action. Nasa appeals, and we reverse for the reasons that follow.

1. Nasa filed a request to proceed in forma pauperis and an “Inmate Form for Civil Action” under 42 USC § 1983, alleging that the officers used excessive force by cuffing him and slamming his face into a wall. The superior court denied the filing, stating in its order: “Upon review of the following inmate form for civil filing, and the motion to proceed in forma pauperis, the Court determines that the filing is frivolous and the motion to proceed in forma pauperis is DENIED. The clerk is ordered not to file said action.”

OCGA § 9-15-2 (d) permits a trial court to deny the filing of a complaint by an indigent pro se litigant if “the judge determines that the pleading shows on its face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading.” “The pleadings of an inmate proceeding pro se are treated with considerable indulgence, and a complaint should not be dismissed without filing unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to some relief.” “On appeal from an order denying filing, we construe the complaint in the light most favorable to the losing party, and pro se complaints are not held to the stringent standards of formal pleadings.”

The superior court concluded, without explanation, that Nasa’s complaint was frivolous. Nasa’s handwritten petition is lengthy, and deciphering his handwriting is an admittedly arduous task. Nevertheless, it is possible to discern his allegations. Nasa claims that after he had a disagreement with one officer concerning his use of the law library, another officer ordered him to face the wall so that his hands could be cuffed behind his back. According to Nasa, he complied peacefully, but the officer slammed his head into the wall two times, until blood ran down the wall, in full view of other officers and inmates. Nasa alleges that he lodged a complaint through the prison’s grievance system, to no avail. He seeks to sue under 42 USC § 1983, alleging that the correctional officers used excessive force against him in violation of the Eighth Amendment prohibition of cruel and unusual punishment.

Decided October 4, 2011.

Susa Nasa, pro se.

“When prison officials maliciously and sadistically use force to cause harm” to inmates, the Eighth Amendment is violated, and the inmate may seek redress through an action under 42 USC § 1983. Although Nasa does not allege that he was gravely injured,

[t]he United States Supreme Court [has] rejected the contention that a prisoner must have suffered serious physical injury to maintain an action under § 1983 for violation of the Eighth Amendment. Instead, the Supreme Court held that under Whitley v. Albers, the extent of the injury suffered is but one factor to be considered in assessing whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.

Nasa has alleged that a correctional officer slammed his face into a wall two times for no reason. He has further alleged that he exhausted his administrative remedies. “Liberally construing [Nasa’s] complaint in the light most favorable to him,” Nasa has stated a justiciable excessive force claim under 42 USC § 1983. Thus, the trial court erred by refusing to file his complaint. “On remand, [Nasa] shall be permitted to file his complaint and proceed on his [excessive force] claim against the [officers]. Thereafter, the trial court may inquire into or entertain challenges to [Nasa’s] affidavit of indigence in accordance with OCGA § 9-15-2 (a) and (b).”

2. Nasa has filed multiple motions, which are denied as moot.

Judgment reversed.

Ellington, C. J., and Miller, P. J., concur.

Thurbert E. Baker, Attorney General, for appellees.

       In its order, the trial court listed the respondent as “Steve Upton, Warden, et al.” Nasa did not, however, list Upton as a respondent.

        Jackson v. Zant, 210 Ga. App. 581 (436 SE2d 771) (1993).

       (Punctuation omitted.) Romano v. Ga. Dept. of Corrections, 303 Ga. App. 347, 348 (693 SE2d 521) (2010).

        Wilkins v. Gaddy,_U. S_(II) (130 SC 1175, 175 LE2d 995) (2010); see also Skrtich v. Thornton, 280 F3d 1295, 1300-1301 (11th Cir. 2002).

       475 U. S. 312 (106 SC 1078, 89 LE2d 251) (1986).

       (Punctuation omitted.) Alford v. Osei-Kwasi, 203 Ga. App. 716, 717-718 (1) (418 SE2d 79) (1992).

         Romano, 303 Ga. App. at 349 (1).

       Whether Nasa ultimately will prevail is another matter entirely.

       Id. at 352 (2).


text:
    A11A0940.
    ARNETT v. THE STATE.
    (717 SE2d 312)
   Doyle, Judge.

A Catoosa County jury convicted Joseph Hamilton Arnett of distribution of marijuana and possession of a firearm during the commission of a felony. On appeal, Arnett contends that the trial court erred by (1) admitting his out-of-court statement, which was made without a Miranda warning; (2) denying his motion for a directed verdict; (3) denying his motion for mistrial following the prosecutor’s improper closing argument; and (4) failing to instruct the jury regarding the impeachment of a witness by conviction of a crime. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, the record shows that on February 11, 2010, Detectives James Stockard and Jeremy Keener were driving through a mobile home park when they witnessed what appeared to be a hand-to-hand drug transaction between Arnett and the passenger of a stopped vehicle. By the time the detectives reached the scene to investigate, Arnett had disappeared on foot, but his vehicle remained. The detectives approached Casey Crane and Shawn Lowrance, the occupants of the vehicle, and saw a plastic bag containing a substance later identified as marijuana protruding from Lowrance’s coat pocket. Lowrance was holding a briefcase matching the description of one that had been reported stolen the night before, along with at least 20 firearms. At later dates, Crane and Lowrance both provided Stockard with written statements that Lowrance and Arnett had exchanged a pearl-handled pistol for marijuana.

On February 24, 2010, Stockard stopped Arnett’s vehicle at a bank to discuss the investigation and ask for help recovering the stolen firearms. Arnett voluntarily followed Stockard to another parking lot for further discussion. Arnett admitted that Lowrance had contacted him the morning of February 11, 2010, because Lowrance wanted to trade a pearl-handled pistol for marijuana. Arnett also stated that he and Lowrance had agreed to meet at the mobile home park for the transaction.

1. Arnett argues that the trial court erred by denying his motion in limine to exclude his out-of-court statement to Stockard, asserting that Stockard questioned him in violation of his constitutional rights. We disagree.

When ruling on a motion to suppress, the trial court sits as the trier of facts, and its findings regarding them are not disturbed on appeal if there is any evidence to support them; the trial court’s decisions with regard to questions of fact and credibility must be accepted unless clearly erroneous, and a reviewing court construes the evidence most favorably to the trial court’s findings.

Arnett argues that because his encounter with Stockard was a second-tier stop unsupported by reasonable suspicion, any statements he made at that time were inadmissible. This contention is without merit.

Police officers “may stop persons and detain them briefly” in a second-tier encounter.

An officer may conduct a brief investigative stop of a vehicle if that stop is justified by specific and articulable facts which, taken together with rational inferences from these facts, reasonably warrant that intrusion. In determining whether an investigatory stop met these requirements, we examine whether the detaining officer had a particularized and objective basis for reasonably suspecting that the particular individual stopped was or had been engaged in criminal activity.

The record shows that Stockard not only witnessed Arnett engaged in a drug transaction, but on the morning of the stop, he obtained a written statement from another party to the transaction confirming Arnett’s involvement. Stockard also recognized Arnett and his vehicle from the scene. Thus, the record supports the trial court’s ruling that Stockard reasonably suspected that Arnett was or had been engaged in criminal activity.

Furthermore, we reject Arnett’s apparent contention that because he was in custody at the time of his statement, he should have been advised of his constitutional Miranda rights. As the officer testified, Arnett was not under arrest, and he made his statement after voluntarily following the officer from the bank parking lot to another location. “A reasonable person in [Arnett’s] position would not have believed that [ ]he was being restrained to the degree associated with a formal arrest. Thus, [his] statement was not tainted by the absence of Miranda warnings.”

2. Arnett also contends that there was insufficient evidence to support his conviction and that the trial court incorrectly denied his motion for a directed verdict.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Conflicts in the testimony of the witnesses, including the state’s witnesses, are a matter of credibility for the jury to resolve.

Arnett makes several arguments based on assertions that (1) the only evidence linking him to the crimes was Lowrance’s uncorroborated testimony, (2) he was convicted merely because he was seen talking to Crane and Lowrance, and (3) his statement to Stockard was inadmissible. The record belies these assertions, so Arnett’s arguments fail.

Lowrance’s testimony was corroborated by the observations of the detectives, the marijuana taken into evidence, the written statements of Crane and Lowrance regarding Arnett’s involvement, and Arnett’s own statement to Stockard. Moreover, as we determined in Division 1, Arnett’s statements to Stockard were admissible. The evidence was sufficient for a rational trier of fact to find Arnett guilty beyond a reasonable doubt.

3. Next, Arnett argues that the trial court erred by denying his motion for mistrial based on the prosecutor’s use of the term “confessed” during her closing argument. According to Arnett, his statement was not a confession, presumably because he did not admit the entire criminal act, and therefore the prosecutor’s use of the word “confessed” was improper and prejudicial.

“The denial or grant of a motion for mistrial falls within the sound discretion of the trial court. The court’s ruling on a motion for mistrial will not be disturbed on appeal unless it is shown that the trial judge manifestly abused that discretion. We find no abuse of discretion in this case.”

Attorneys [are] allowed all reasonable latitude in the argument of cases to a jury provided they do not go outside the facts legitimately appearing from the trial and “lug” in extraneous matters as if they were part of the case. Counsel may draw remote deductions and inferences from the evidence and there is no basis for objection even if the deductions and inferences are illogical or unreasonable.

Pretermitting whether Arnett’s statement constituted a confession, the prosecutor’s characterization of Arnett’s statement to Stockard was not an extraneous matter outside the facts legitimately produced during trial. “Moreover, the trial court instructed the jury that the evidence does not include opening and closing statements of the attorneys.” Finally, Arnett has failed to show that he was prejudiced or harmed by the prosecution’s characterization of his statement. Accordingly, this enumeration presents no basis for reversal.

4. Arnett contends that the trial court committed reversible error by refusing to instruct the jury regarding impeachment of a witness by prior conviction of a crime. We disagree.

At trial, Arnett introduced evidence that Lowrance had been convicted of two counts of entering an automobile. Thus, “it was error for the trial court to refuse to charge on impeachment by prior conviction.” Nevertheless, Arnett did not submit a written request for the charge, and “[generally, the failure to request the subject charge in writing precludes further complaint.”

Moreover, “[t]he failure to give a requested charge which is authorized by the evidence can be harmless error. The inquiry is whether it is highly probable that the error contributed to the verdict.” Here, even disregarding Lowrance’s testimony, the evidence of Arnett’s guilt — including the officer’s observations of the transaction, Crane’s written statement that Arnett gave Lowrance marijuana in exchange for a gun, and Arnett’s admission that he agreed to meet Lowrance for the trade — was overwhelming.

Decided October 4, 2011.

Perrotta, Cahn & Prieto, James A. Meaney III, for appellant.

Herbert E. Franklin, Jr., District Attorney, Jennifer A. Morris, Assistant District Attorney, for appellee.

Finally, the trial court instructed the jury on witness credibility as follows:

You must determine the credibility or believability of the witnesses. It is for you to determine which witness or witnesses you believe or do not believe if there are some whom you do not believe. In deciding credibility you may consider all the facts and circumstances of the case, the manner in which the witnesses testify, their interest or lack of interest in the case, their means and opportunity for knowing the facts about which they testify, the nature of the facts to which they testify, the probability or improbability of their testimony[,] and the occurrences about which they testify. You may also consider their personal credibility insofar as it may have been shown in your presence and by the evidence.

“Given this lengthy instruction, we cannot conclude that the court’s charging error impacted the verdict.”

Judgment affirmed.

Ellington, C. J., and Miller, P. J., concur.

       OCGA § 16-13-30 (j).

       OCGA § 16-11-106 (b) (4).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       See Cantrell v. State, 299 Ga. App. 746 (683 SE2d 676) (2009).

       (Punctuation omitted.) Whitmore v. State, 289 Ga. App. 107 (657 SE2d 1) (2008).

       (Punctuation omitted.) State v. Harris, 261 Ga. App. 119, 121 (581 SE2d 736) (2003).

       (Citation and punctuation omitted.) Jackson v. State, 236 Ga. App. 492, 494 (1) (512 SE2d 24) (1999).

       See Darden v. State, 293 Ga. App. 127, 129-131 (1) (a) (666 SE2d 559) (2008).

       (Citations omitted.) State v. Davison, 280 Ga. 84, 88 (2) (623 SE2d 500) (2005).

       (Punctuation omitted.) Hargrove v. State, 289 Ga. App. 363 (657 SE2d 282) (2008).

       See OCGA §§ 16-13-30 (j)> 16-11-106; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Citations omitted.) Callahan v. State, 179 Ga. App. 556, 563-564 (5) (347 SE2d 269) (1986).

       (Citation omitted.) Id. at 563 (5).

        Odom v. State, 304 Ga. App. 615, 618 (3) (b) (697 SE2d 289) (2010).

       See Rainly v. State, 307 Ga. App. 467, 477 (7) (705 SE2d 246) (2010).

        Brown v. State, 289 Ga. 259, 260 (2) (710 SE2d 751) (2011).

       Arnett claims that during the unreported charge conference, the trial court indicated that it would give the pattern charge on impeachment of witnesses but then subsequently omitted the portion on impeachment by proof of conviction of a crime while instructing the jury.

        Whitaker v. State, 283 Ga. 521, 526 (4) (661 SE2d 557) (2008).

       (Citation and punctuation omitted.) Brown, 289 Ga. at 261 (2).

       See id. Compare Sapp v. State, 271 Ga. 446, 448-449 (2) (520 SE2d 462) (1999) (trial court’s error in failing to give a charge on impeachment by proof of conviction of a crime was not harmless because the witness’s testimony was critical).

        Simonette v. State, 262 Ga. App. 117, 119 (584 SE2d 623) (2003).


author: BARNES, Presiding Judge.

text:
    A11A0979.
    NORWOOD v. THE STATE.
    (717 SE2d 316)
   BARNES, Presiding Judge.

Following his negotiated guilty plea to obstruction of an officer and disorderly conduct, Vincent Norwood moved to withdraw his guilty plea contending that trial counsel was ineffective and that his plea was not entered voluntarily and knowingly. Norwood now appeals the denial of his motion, and argues that his trial counsel was ineffective for failing to apprise him of the consequences of his plea to his probation status, and thus, as he lacked this knowledge, his plea was not entered voluntarily and knowingly. For the reasons that follow, we find that the trial court did not abuse its discretion in denying Norwood’s motion, and affirm.

Once a sentence has been entered, a guilty plea may be withdrawn only to correct a manifest injustice. Maddox v. State, 278 Ga. 823, 826 (4) (607 SE2d 587) (2005).

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

(Citation and punctuation omitted.) Id. Absent a manifest abuse of discretion, a trial court’s ruling on a motion to withdraw a guilty plea will not be disturbed. Trimble v. State, 274 Ga. App. 536 (1) (618 SE2d 163) (2005).

On April 27, 2010, Norwood, who was represented by appointed counsel, entered a guilty plea to obstruction of an officer and disorderly conduct, and was sentenced to 12 months probation for each conviction. At the time he entered the plea Norwood was on probation for two separate burglary convictions and aggravated assault. At the conclusion of his plea hearing, the trial court conducted a probation revocation hearing, after which Norwood’s probation was revoked two years on each conviction, with the time to be served concurrently.

On May 26, 2010, Norwood, pro se, filed a document entitled “Order of Plea Withdrawal” in which he requested that he be permitted to withdraw his guilty plea. Norwood’s trial counsel subsequently entered a motion to withdraw his guilty pleas, alleging that she (trial counsel) was ineffective and that the pleas were not entered voluntarily and knowingly. The trial court appointed Nor-wood new counsel on September 13, 2010, and a hearing on the plea withdrawal motion was conducted on October 19, 2010, after which the trial court denied the motion. He appeals from the denial of that motion.

On appeal, Norwood contends that trial counsel was ineffective because she failed to discuss the charges with him before the hearing date; never provided discovery documentation to him; and informed him about the district attorney’s offer only “moments” before the hearing without reviewing with him the consequences of the plea.

When a defendant challenges the validity of his guilty plea, the State bears the burden of showing that the defendant intelligently and voluntarily entered the plea. The relevant inquiry is whether the defendant freely and voluntarily entered the plea with an understanding of (1) the charges against him and (2) the consequences of his plea. The State may meet its burden through the use of the transcript of the guilty plea hearing or through the use of extrinsic evidence to fill a silent record.

(Citations omitted.) Price v. State, 280 Ga. App. 869 (635 SE2d 236) (2006).

Although there is no constitutional requirement that a defendant be informed of collateral consequences of a plea, such as parole eligibility, counsel’s affirmative misrepresentations about those consequences in response to his client’s specific inquiries may form the basis of an ineffective assistance of counsel claim. To prevail on such claim, [Norwood] has the burden to show that counsel was deficient, and that absent the deficiency, there is a reasonable probability that he would have proceeded to trial rather than pleading guilty. Upon review of the trial court’s ruling on the effectiveness of trial counsel, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) James v. State, 309 Ga. App. 721, 722 (2) (710 SE2d 905) (2011).

At the plea hearing, the State informed the trial court that Norwood wanted to address the court about his representation. The trial court asked Norwood what he wanted to tell the court, but Norwood replied, “it’s just that the charges that they got me with is really what has got me upset.” The trial court asked Norwood if he wanted to “say something about [his] attorney here today,” and Norwood responded, “No, I’m going to go ahead and plead guilty, but still if I could address you about my case.” After which, the trial court informed Norwood that he would be able to talk about his case during the hearing.

The hearing proceeded, and Norwood informed the trial court that he was not under the influence of any alcohol or drugs, that he knew the offenses he was charged with, and that he understood the maximum penalties for the offenses. He further acknowledged that he understood that by pleading guilty to the charges his probation would be revoked, and that the trial court was not bound by the State’s sentencing recommendations. He also affirmed that he was satisfied with his lawyer’s service, that his lawyer had explained the guilty plea form to him, and also that he was not pleading guilty as a result of a promise or threat. Norwood further acknowledged that he was guilty of the crimes charged. The State advised the trial court that it was a negotiated plea, and the trial court accepted the State’s recommendation and sentenced Norwood to 12 months probation on the disorderly conduct count to run consecutive to his 2001 burglary sentence, and 12 months probation on the obstruction count, to run consecutive to the disorderly conduct sentence.

At the hearing on the motion to withdraw his guilty plea Norwood testified that when he pled guilty, he thought that he was going to be sentenced to four months, the time purportedly recommended by his probation officer. He further testified that at the time he signed the plea form, he believed that the State and the trial court agreed with the probation officer’s recommendation.

Norwood’s trial counsel testified that she spoke with Norwood’s probation officer and that she recalled that he orally recommended that Norwood receive six months probation. She further testified that she advised Norwood that the trial court could go “higher than that, as far as both the plea and the violation of probation.”

Regarding Norwood’s assertions about what he was told or not told by his trial counsel, credibility issues arose, which only the trial court could resolve. McCloud v. State, 240 Ga. App. 335, 336 (2) (525 SE2d 701) (1999). Further, Norwood has not shown on appeal that his trial counsel advised him wrongly concerning the terms of his negotiated plea or the implications of his probation revocation; nor has he shown that his counsel fell below an objective standard of reasonableness in representing him. The record here shows that Norwood knew that his guilty plea would result in the revocation of his probation, and also that the trial court was not bound by any recommendations as to his sentence. Further, Norwood was offered the opportunity at the plea hearing to discuss any concerns he had with his representation, but he declined to do so and instead said that he wanted to plead guilty. As such, Norwood has failed to demonstrate ineffective assistance of counsel, and the trial court did not abuse its discretion in denying his motion to withdraw his plea on this basis.

Decided October 4, 2011.

LaMalva & Oeland, David A. LaMalva, for appellant.

Layla H. Zon, District Attorney, Clint C. Malcolm, Assistant District Attorney, for appellee.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       The trial court entered an order denying Norwood’s motion to withdraw his guilty plea on October 19, 2010; however the order was apparently “transmitted to the Public Defender’s Office instead of [Norwood’s] conflict attorney, and more than thirty (30) days elapsed without the filing of a Notice of Appeal.” On November 23, 2010, the trial court granted Norwood an out-of-time appeal. Norwood filed a notice of appeal from that order; however, no written order denying the motion to withdraw his guilty plea had been filed, so the trial court subsequently entered a written motion denying the motion on December 2, 2010, after which Norwood timely filed his notice of appeal.


text:
    A11A1026.
    SIMONS v. THE STATE.
    (717 SE2d 319)
   Doyle, Judge.

Following a jury trial, Jennifer Simons was convicted of robbery by sudden snatching. She appeals, arguing that the trial court erred by admitting evidence of her prior drug use and that she received ineffective assistance of counsel. We affirm, for reasons that follow.

Viewed in favor of the verdict, the evidence shows that on September 27, 2007, Simons drove her husband’s cousin, John Roberts, to a shopping center containing a fabric store and parked in the alley behind the shopping center. Roberts exited the vehicle and stood by the door to the fabric store until Hanna Joy, a customer, approached. Roberts opened the door, blocked Joy’s path, and then “violently” grabbed her purse strap. Joy refused to release her purse, and she screamed, wrapped her arms around a column, and locked her fingers, while Roberts continued to pull on the purse. Eventually, one of the straps broke, and Roberts fell backward and then got up and ran.

Joy dropped her other packages and chased Roberts, screaming, “Call 911. Somebody help me. Somebody please help me.” Simons, who was still in the parked vehicle facing away from the store, saw Roberts running and began backing up toward him. Roberts ran toward the car, and Simons stopped and “let him in.” Simons then changed gears and began to pull forward, and Joy, who was standing in front of the car, jumped onto the hood so that the car would not strike her.

Meanwhile, two men from an adjacent building heard Joy’s screams and ran to assist her. As Simons attempted to drive away with Joy still on the hood of her car, one of the men leaned into the car and knocked it out of gear, while Simons resisted him and Roberts yelled, “Go, go, go.” As Simons reached for the steering wheel again, the second man reached in and grabbed the keys. One of the men then pulled Roberts out of the car and restrained him until the police arrived.

Roberts pleaded guilty to robbery by sudden snatching, and he testified for the State at Simons’s trial. According to Roberts, he met Simons at an acquaintance’s house, and they drove around in Simons’s car while Roberts smoked crack cocaine; he did not know if Simons was smoking crack, but he stated that Simons used to “ smoke [ ] from time to time back a long time ago. ...” Roberts further testified that when he exited Simons’s vehicle at the shopping center, he told her that he “was going to go panhandling or get some money or something, and then in passing, [he] mentioned maybe [he]’ll just take — take a purse. ...” Simons told him not to, but she remained in the car at the same location until Roberts returned. The State also introduced Roberts’s recorded statement to the police, in which Roberts stated that Simons bought crack on the day of the robbery and that both of them smoked crack before the robbery. According to Roberts, Simons knew that he was going to attempt to get money so they could buy food and more crack cocaine.

Officer Jason Pagliaro, who responded to the 911 call, testified that when he asked Simons why she was in the area, she responded that she was picking Roberts up from work at Ethan Allen Furniture. According to Pagliaro, there was not an Ethan Allen Furniture store in the shopping center, and the closest store was over 100 miles away.

Simons testified at trial, and she admitted during direct examination by defense counsel that she had previously been addicted to crack, but had been “clean” for four years. Simons stated that she took Roberts to the shopping center so that he could pick up money from his employer and that she panicked when she saw him running toward her car with a purse. According to Simons, she cranked the car because she “wanted to leave the scene,” but Joy then jumped on the hood, and Simons “wasn’t about to go drive off with a woman on the hood of [her] car. [Simons] didn’t know what to do, so [she] stopped the car[,] and the next thing [she knew], the other two gentlemen . . . were near the car.”

At the conclusion of the trial, the jury found Simons guilty of robbery by sudden snatching. The trial court denied her subsequent motion for new trial, and this appeal followed.

1. Simons contends that the evidence regarding her previous drug use should not have been admitted, arguing that it improperly injected her character into evidence in violation of OCGA § 24-2-2. Simons failed, however, to object to the introduction of such evidence, and in fact, defense counsel elicited it. Thus, she has waived any argument that the trial court erred by admitting evidence of her prior drug use.

2. Simons also argues that trial counsel was ineffective by failing to object to and introducing evidence regarding her prior drug use. We disagree.

To establish ineffective assistance of counsel under Strickland v. Washington, [Simons] must prove (1) that h[er] trial counsel’s performance was deficient, and (2) that counsel’s deficiency so prejudiced h[er] defense that a reasonable probability exists that the result would have been different but for the deficiency. . . . The trial judge, who oversaw the trial and heard the evidence presented at the hearing on the motion for new trial, makes the findings on whether the performance was deficient and whether it prejudiced the defendant, findings that this Court does not disturb unless clearly erroneous. Additionally, a court is not required to address the performance portion of the inquiry before the prejudice component or even to address both components if the defendant has made an insufficient showing on one.

Here, Roberts told the police that he committed the robbery to obtain money so that he and Simons could purchase more drugs and that Simons knew he was going to do so. Thus, Simons’s drug use showed her motive to participate in the robbery of Joy.

Although motive is not an essential element in proving the crimes charged, the State is entitled to present evidence to establish that there was a motive, and evidence that [Simons] used drugs is relevant to prove that [s]he had a motive for committing the crime [ ] and is not rendered inadmissible by the fact that it incidentally puts h[er] character in issue.

Decided October 4, 2011.

Jennifer R. Burns, for appellant.

Larry Chisolm, District Attorney, David E. Perry, Anna Guardino, Assistant District Attorneys, for appellee.

Accordingly, the evidence was admissible, “[a]nd failure to raise a meritless objection cannot constitute ineffective assistance of counsel.”

Judgment affirmed.

Ellington, C. J., and Miller, P. J., concur.

       OCGA § 16-8-40 (a) (3).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       Consistent with his testimony at trial, Roberts told the police that he told Simons that he was going to take someone’s purse, and she told him not to do so; she still, however, elected to wait for him after he exited the car. Roberts also asked the police to “[j]ust kinda go easier on [Simons], because I’ll take the full blunt [sic]. . . .”

       See Simmons v. State, 299 Ga. App. 21, 25 (4) (681 SE2d 712) (2009); Sampson v. State, 282 Ga. 82, 83 (2) (646 SE2d 60) (2007).

       466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

       (Citations and punctuation omitted.) Jackson v. State, 284 Ga. App. 619, 627-628 (11) (644 SE2d 491) (2007).

        Brady v. State, 270 Ga. 574, 578-579 (5) (a) (513 SE2d 199) (1999).

       See Bryant v. State, 288 Ga. 876, 889 (10) (a) (708 SE2d 362) (2011) (evidence of the defendant’s drug usage and dealing was admissible because the State introduced evidence that the defendant’s motive in committing the crimes was to obtain drugs or money to be used in a drug transaction); Benford v. State, 272 Ga. 348, 350 (3) (528 SE2d 795) (2000) (“given the role crack cocaine played in the events leading up to the murder of the victim and the reasonable inference the jury could have drawn from the evidence that [the defendant’s] motive in murdering the victim was to obtain the victim’s drugs or money to purchase the drug from others,” testimony that the defendant possessed crack cocaine when arrested was admissible); Brady, 270 Ga. at 578-579 (5) (a) (evidence of the defendant’s drug usage and dealing was admissible because the State introduced evidence that the defendant’s motive in committing the crimes was to obtain drugs or money to be used in a drug transaction); Wilson v. State, 306 Ga. App. 827, 833 (3) (b) (703 SE2d 400) (2010) (evidence that the defendant previously purchased drugs from robbery victim showed motive for the robbery and was therefore admissible).

         (Punctuation omitted.) Wilson, 306 Ga. App. at 834 (3) (b).