GEORGIA SUPREME COURT

CLICK TO READ Patrick Middleton v. State of Georgia, Docket # Docket # S22G1050

 On February 15, 2020, KPD Officer Graw stopped Middleton’s vehicle while outside Kingsland city limits in Camden County. After smelling the odor of marijuana, Officer Graw conducted a search of Middleton’s vehicle, found a controlled substance, and arrested him. Prior to trial, Middleton asked the trial court to suppress evidence obtained during the search because Officer Graw, as a KPD officer, did not have authority to make a traffic stop outside Kingsland city limits. At a motion-to-suppress hearing, Officer Graw testified that she was employed by both the KPD and CCSO by virtue of having “been deputized by the Camden County Sheriff’s Office since 2013” while riding along with CCSO deputies. She also testified that she had never worked a paid shift as a CCSO deputy or received a paycheck from the CCSO.  The trial court granted Middleton’s motion to suppress under OCGA § 40-13-30, which provides that a municipality’s law enforcement officers lack arrest powers outside of the municipality’s city limits.  In its written order, the trial court concluded that “without a showing that extra-territorial jurisdiction was conferred upon Officer Graw by local or other law, Middleton’s search and seizure were unlawful.” In a footnote, the trial court stated that it was “not persuaded that Officer Graw’s 2013 deputization by the Camden County Sheriff to act as an agent of the CCSO as part of her riding with CCSO deputies at the time changes its analysis, especially where the State has failed to introduce evidence as to the scope and/or content of said deputization.”

The State appealed, and the Court of Appeals reversed, concluding that Officer Graw’s testimony that she was deputized in 2013 was sufficient to prove that she was acting within her jurisdiction as a deputy sheriff at the time of the arrest.  Middleton subsequently petitioned for certiorari, which this Court granted to review the question of whether the trial court erred in granting Middleton’s motion to suppress evidence on the basis that Officer Graw was not engaged in the lawful discharge of her official duties at the time of the search and subsequent arrest.

The Supreme Court held that the trial court’s order is ambiguous regarding whether it made a factual finding when it took note of “Officer Graw’s 2013 deputization by the Camden County Sheriff to act as an agent of the CCSO as part of her riding with CCSO deputies at the time.” It is not clear to us whether this statement rests on a factual finding that Officer Graw was deputized only for cases that arose as she was “riding with CCSO deputies,” particularly in light of the trial court’s later statement that “the State has failed to introduce evidence as to the scope and/or content of said deputization.”

The Supreme Court vacated the Court of Appeals’ opinion with direction that it vacate the trial court’s order and remand the case to the trial court with direction to clarify its basis for ruling that the search and seizure of Middleton was unlawful.

CLICK TO READ Rick Allen Kuhlman v. State of Georgia, Docket # S23A0699

In 2011, Kuhlman pled guilty in federal court to one count of health care fraud under 18 U.S.C. § 1347, and as a result, was a convicted felon unable to possess firearms.  After the Georgia Board of Public Safety (“the Board”) denied Kuhlman’s application for relief from the prohibition on the possession of firearms by convicted felons in OCGA § 16-11-131, Kuhlman sued the State of Georgia in the Superior Court of Fulton County, seeking a declaratory judgment “that he qualifies for relief” from that prohibition pursuant to subsection (d) of the statute.  The superior court granted summary judgment to the State on all claims. In its order, the court ruled that Kuhlman’s statutory claim was barred by sovereign immunity, that he could not maintain his federal constitutional claim, and that OCGA § 16-11-131 did not violate the state constitution. Nevertheless, the superior court went on to rule in the alternative on the merits of Kuhlman’s statutory claim, but it failed to reach the merits of his Federal constitutional claim.

The Georgia Supreme Court reversed the portion of the superior court’s judgment that is based on sovereign immunity, affirmed the court’s alternative ruling on the merits of Kuhlman’s statutory claim, vacated the portion of the judgment that relates to Kuhlman’s constitutional claims, and remanded the case to the superior court for reconsideration of Kuhlman’s constitutional claims.

Georgia Supreme Court Summaries 8-21-2023

Georgia Supreme Court Summaries 9-6-2023

Georgia Supreme Court Summaries 9-19-2023

GEORGIA COURT OF APPEALS

CLICK TO READ Bradley Simmons v. State of Georgia, Docket # A23A0775

Bradley Simmons entered into a negotiated guilty plea to a charge of sexual battery in 2018, and the trial court sentenced him to serve five years in prison. Two years later, he filed a motion to set aside or correct a void sentence, arguing that his sentence violated OCGA § 16-6-22.1 (c). Defendant argued that the 5-year sentence for felony sexual battery because the victim was not under the age of 16 at the time of the offense, and as a result, he should have been sentenced for misdemeanor sexual battery.  Prior to the hearing, the defense and the State stipulated as to the victim’s date of birth, which made her 16 at the time of the offense.  After a hearing, the trial court denied the motion, concluding “the revelation that the named victim was 16 years of age at the time of the offense does not affect the validity of Defendant’s guilty plea and does not render the sentence imposed void.” The court further determined that Simmons “waived his defense that the victim’s age prohibited his conviction for felony sexual battery by entering a valid guilty plea.”

The Court of Appeals reversed, finding that the sentence was void because it imposed a punishment the law did not allow.  A defendant who “knowingly enters into a plea agreement does not waive the right to challenge an illegal and void sentence.”  A defendant is required to assert a victim’s age as a defense when charged with sexual battery.  And a defendant’s acquiescence to an illegal sentence, either through plea negotiations or a failure to object to the sentence, “cannot render an otherwise illegal sentence valid through waiver.”

Sentence vacated and remanded.

CLICK TO READ Rochelle Lagail Hodge v. State of Georgia, Docket # A23A1083

Rochelle Lagail Hodge appealed the revocation of her probation, which was imposed after a negotiated guilty plea in 2017 for several charges, including serious injury by vehicle, hit and run, and driving under the influence of marijuana. Initially, she was sentenced to ten years of probation with various conditions. In 2019, her probation was modified due to her failure to inform her probation officer about her move, resulting in a 180-day sentence at a probation detention center. Later, in April 2020, her probation was again modified for violating probation detention center rules, leading to a 30-day sentence in county jail.

In July 2021, Hodge was arrested for driving under the influence of alcohol, leading to a third petition to modify or revoke her probation. At the probation revocation hearing, it was established that a violation had occurred. The trial court ordered Hodge to serve the remainder of her probationary period in the Department of Corrections, lasting until September 26, 2027.

Hodge appealed, not disputing the probation violation but arguing that the trial court was authorized to revoke only two years of her probation as the violation involved a general condition, not a special one. The Court of Appeals agreed, citing a statute limiting confinement to two years for general condition violations and clarifying that only added conditions were made special in the previous modification order. The court vacated her sentence and remanded the case for re-sentencing, ensuring that the confinement term aligns with statutory limitations.

CLICK TO READ Timothy Lamar Clark, Jr. v. State of Georgia, Docket # Docket # A23A1611

In this case, the Court of Appeals applied the 2022 decision of the Georgia Supreme Courtin Cook v. State, 313 Ga. 471 (870 SE2d 758) (2022), which eliminated the judicially createdout-of-time-appeal procedure, holding that a trial court is “without jurisdiction to decide [a] motion for out-of-time appeal” on the merits because “there was and is no legal authority for motions for out-of-time appeal in trial courts.”  As a result, if an appeal is filed out of time, there is no jurisdiction for a Georgia appellate court to entertain the appeal and the appeal must be dismissed.

CLICK TO READ State of Georgia v. Percy Small, Docket # A23A1140

In connection with a shooting incident, a jury found Percy Small guilty of aggravated assault with a deadly weapon and various other offenses. The trial court granted Small’s motion for new trial in part, determining that Small received ineffective assistance of counsel based on his trial attorney’s failure to request a jury instruction on reckless conduct as a lesser included offense of aggravated assault.  The State appealed, arguing that (1) the trial court misapplied the law when determining that Small’s trial counsel performed deficiently in not requesting a jury charge on reckless conduct; and (2) the trial court erred in finding that the facts of this case provided evidence of reckless conduct.

The Court of Appeals held that the trial court erred in granting Small a partial new trial because Small’s act of firing into the air constituted aggravated assault — not reckless conduct — and therefore Small’s trial counsel did not render deficient performance by not requesting a jury charge on reckless conduct as a lesser offense.

Order reversed, conviction reinstated.

CLICK TO READ Rodney Oliver Martin v. State of Georgia, Docket # A23A1138

In 2017, Martin entered nolo contendere pleas to two counts of terroristic threats, and he was sentenced as a First Offender to five years’ probation.1 Per the special conditions of his probation, Martin was to have no contact with his victims, complete drug testing and community service, pay a fine, participate in family violence intervention, and he was barred from the area near his victims’ home. The trial court later modified Martin’s sentence at his request so that his probation would terminate after two years if he did not commit any new violations.

In 2019, the State filed a petition alleging that Martin violated his probation by possessing marijuana and contacting his victims. After Martin admitted the allegations, the trial court withheld adjudication and continued his probation, ordering him to serve 60 to 90 days in a probation detention center.  The following year, the State filed another revocation petition, alleging that Martin violated his probation by testing positive for drugs and failing to pay all court ordered monies. Martin again admitted the allegations, and the trial court continued his probation and ordered that Martin retain his First Offender status.

In May 2022, the State served Martin with another petition to revoke his probation, alleging that he had tested positive for drugs, engaged in contact with his victims, and entered the area from which he was barred. Unlike the previous petitions, this one was not filed with the trial court. Martin appeared at an initial hearing and denied the allegations, and the trial court set an evidentiary hearing to consider the allegations in the revocation petition.3 It appears that, during that initial hearing, the trial court may have received a copy of the revocation petition for its “records.” But the record does not contain a stamped petition.

In July 2022, Martin filed a motion to dismiss the revocation petition because his term of probation had ended the previous month.  The trial court denied the motion and scheduled a hearing.  Before the hearing occurred, Martin filed his notice of appeal from the trial court’s order denying his motion for discharge and acquittal. The following week, despite the notice of appeal, the trial court conducted a revocation hearing, found Martin had committed the probation violations, adjudicated him guilty, and revoked his First Offender status.

The Court of Appeals held that the notice of appeal acted as supersedeas even though he did not follow the discretionary application procedures.  Thus, once Martin filed his notice of appeal, the trial court lacked authority to “affect the judgment appealed, [and] subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect.”  The Court of Appeals further held that the trial court lacked the ability to revoke his First Offender status after his term of probation expired, because to do so would amount to an increase in punishment. The discharge would be automatic, and the State cannot circumvent the requirements by simply announcing its intent to revoke, but never filing any revocation petition.

Revocation order reversed, Defendant discharged.

CLICK TO READ William Thompson v. State of Georgia, Docket # A23A1026

This interlocutory appeal began when the manager of an apartment complex reported unusual traffic to law enforcement at Thompson’s apartment. When officers arrived and knocked on the door, Thompson, a college student, answered, and the officers detected the smell of burnt marijuana inside. Thompson initially refused entry but later admitted to having marijuana and offered to hand it over. The officer explained that they had received a drug complaint and the option to consent to a search or face a search warrant. Thompson eventually consented after initially hesitating.

During a security sweep, the officer found marijuana, baggies, and a digital scale in Thompson’s bedroom. Two locked safes were also discovered in his closet, with loose marijuana spilling from one when moved. Thompson indicated that the keys were lost and insisted on a search warrant before opening them. Meanwhile, Thompson’s roommate consented to a search of his room, where a lingering odor of burnt marijuana was present, and he later admitted to purchasing marijuana from Thompson.

Thompson was arrested and, after his arrest, a search warrant was obtained for the safes, leading to the discovery of additional marijuana and a Glock 43 9mm pistol. Thompson was charged with possession of marijuana with intent to distribute, possession of a firearm during the commission of a felony, and possession of drug related objects. He filed a motion to suppress, arguing that the officers violated his Fourth Amendment rights by entering his apartment without a search warrant, valid consent, or exigent circumstances; that any consent given was the product of illegal entry and coercion; that the search warrant was based upon information obtained through the illegal entry; and that the statements made must be suppressed because they were fruits of the illegal entry and detention.  The trial court denied the motion.

The Court of Appeals reversedfinding that when the police smelled marijuana and Defendant admitted to possessing it, the police had probable cause to obtain a search warrant.  However, the probable cause did not dispense with the need for Thompson’s consent or the existence of exigent circumstances in order to justify the warrantless entry into his apartment.  The presence of contraband without more does not give rise to exigent circumstances.  It is undisputed that there was no consent to search until after the police entered the apartment unlawfully.  Mere acquiescence in an officer’s authority will not demonstrate the accused’s voluntary consensual compliance with the request made of him.  The pertinent question, therefore, is whether there existed exigent circumstances sufficient to justify the officers’ entry into the apartment after Thompson and his roommate had been removed from within. The undisputed testimonial and videotape evidence establish that there did not.

Order reversed, suppression granted