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May 8 17

Is It Really Necessary For the Trial Court to Rule on Issue to Appeal That Issue?

by merlin

        

In the 2011 Supreme Court case of Tyner v. State ( 289 Ga. 592), the Court discussed an earlier case I have written about on this site, Wiggins v. State, 288 Ga. 169 (Ga. 2010), in which the Georgia Supreme Court dismissed the argument of the Defendant that inclusion on the Sex Offender Registry was a violation of his Sixth Amendment rights

(“guarantees the rights of criminal defendants, including the right to a public trial without unnecessary delay, the right to a lawyer, the right to an impartial jury, and the right to know who your accusers are and the nature of the charges and evidence against you”)

because that argument was not raised at the trial court level.

The Supreme Court of Georgia 2011 case of Tyner v. State, 289 Ga. 592, 714 S.E.2d 577, below, involves the interesting issue of the entry of a guilty plea to an accused malice murder, followed by an allegation that the plea was not voluntarily entered.  However, there is no evidence of this involuntariness on the record that the Court has in front of it, so it has nothing to decide on (the Court instead decides to pursue important Constitutional issues implicated by the absence of a record).

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Charles H. Frier, Smyrna, for appellant.Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Marc A. Mallon, Paige R. Whitaker, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.

NAHMIAS, Justice.        
        

This is Curtis Tyner’s much delayed direct appeal of his 1984 malice murder conviction based on his guilty plea. Because the case is here on direct appeal and the record does not show that Tyner was advised of his right against self-incrimination as we have held is required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), his guilty plea was invalid and we must reverse his conviction.

1. According to the factual basis offered in support of the guilty plea, in April 1984, IBM executive Martha Anne Mickel hired Tyner to paint her apartment. On April 15, Tyner forced Ms. Mickel into a car, tied her up, sexually assaulted her, and then dumped her, unconscious, in a creek. The autopsy showed that the victim was still alive and breathing when she was put into the water and that the cause of death was drowning. The police identified Tyner as a suspect from evidence found in the victim’s apartment. He confessed to the police a few days later after being advised of his rights, even telling them where to find the victim’s purse. Tyner denied, however, knowing that the victim was still breathing when he threw her in the creek. On April 27, 1984, Tyner was indicted for malice murder, and Carl Greenberg from the Fulton County Public Defender Office was appointed to represent him.

        On September 25, 1984, Tyner pled guilty to malice murder. He later said that he pled guilty because the State had indicated that it would seek the death penalty if the case went to trial. The transcript of the plea hearing shows that Tyner was advised of and waived two of his three Boykin rights—the right to a jury trial and the right to confront the witnesses against him. However, he was not advised of his third Boykin right, the right against self-incrimination.

        The trial court accepted the guilty plea and sentenced Tyner to life in prison. At the close of the hearing, the prosecutor suggested that the court should “[a]dvise him of his rights I think,” apparently referring to Tyner’s limited right to appeal his conviction and sentence based on a guilty plea. The court responded, “I don’t think there’s any need,” and the hearing ended.

        Within three months of the guilty plea, Tyner began filing pro se pleadings seeking review of his sentence and documents related to his case so that he could “get it back in court” and prepare “his attack on the erroneous issue in his case.” Tyner noted in a 1987 filing that “[a]n indigent defendant is entitled to obtain free of charge a transcript of his trial for purposes of a direct appeal of his conviction,” and in another filing he complained that his letters to Greenberg had all come back marked “Return to Sender.”

        In 1986, 1987, and 1990, Tyner filed pro se petitions for habeas corpus, and the habeas court conducted an evidentiary hearing on each petition before denying relief. In 2008, Tyner filed a fourth habeas petition, which was dismissed as successive and procedurally barred. In 2009, Tyner filed a pro se motion for out-of-time appeal of his conviction, which the trial court summarily dismissed, and a pro se motion for new trial, which the court dismissed as untimely.

         In April 2010, Tyner filed a pro se notice of appeal of the order denying an out-of-time appeal, and the following month he filed a motion for appointment of counsel. The trial court granted the motion, and Tyner, now represented by counsel apparently for the first time since 1984, withdrew his notice of appeal and filed a second motion for out-of-time appeal on June 30, 2010. Tyner alleged that he was not told that he had a right to appeal his conviction, that the court’s remarks at the plea hearing gave him the impression that he could not appeal, and that his failure to file a timely appeal could not be attributed to any error or desire on his part. See Birt v. Hopper, 245 Ga. 221, 221 n. 1, 265 S.E.2d 276 (1980) (explaining that “[o]ut-of-time appeals are granted where a defendant in a criminal case is not advised of his right of appeal or his counsel fails to appeal” as directed). The State did not file a response to the motion or request a hearing, and on July 12, 2010, the trial court granted Tyner an out-of-time appeal. Tyner filed a timely notice of appeal of his conviction a week later.

         2. Tyner’s sole enumeration of error is that his guilty plea is invalid under Boykin because the State failed to meet its burden of showing that he knowingly and voluntarily waived his right against self-incrimination. With limited exceptions, the entry of a guilty plea waives all defenses except those that relate to the knowing and voluntary nature of the plea. See Moore v. State, 285 Ga. 855, 858, 684 S.E.2d 605 (2009). Once a defendant raises a question about the validity of a guilty plea, the State bears the burden to establish that the plea was knowingly and voluntarily entered. See King v. State, 270 Ga. 367, 369, 509 S.E.2d 32 (1998) (on direct appeal); Bazemore v. State, 273 Ga. 160, 161, 535 S.E.2d 760 (2000) (in habeas corpus). In reviewing a direct appeal from a guilty plea, this Court must evaluate the enumerated errors based solely on “the trial court record, including the record of the guilty plea and sentencing as well as any subsequent evidence that was properly presented to the reviewing court, assuming all of that is also properly included in the record on appeal.”

Smith v. State, 287 Ga. 391, 403, 697 S.E.2d 177 (2010).

        The State concedes the existing record does not show that Tyner was advised of his right against self-incrimination and acknowledges that our usual course where we find a Boykin violation on direct appeal is to reverse the invalid conviction and remand the case for further proceedings. The State nevertheless asks us not to decide the Boykin issue but first to remand the case to the trial court, where Tyner should be required to file a motion to withdraw the guilty plea, which would give the State the opportunity to try to show that Tyner’s attorney informed him of his right against self-incrimination before he pled guilty. See Bazemore, 273 Ga. at 161, 535 S.E.2d 760 (noting that the State may carry its burden of showing that the defendant was advised of and waived his Boykin rights not only with the plea hearing record but with extrinsic evidence properly in the record, including evidence from plea counsel). However, the State cites no authority supporting such a procedure, and we have explained that “a defendant who hopes to appeal successfully from a guilty plea is not required to first file a motion to withdraw the plea.” Smith, 287 Ga. at 403 n. 7, 697 S.E.2d 177.

         3. Shortly before oral argument, the State filed a motion to dismiss Tyner’s appeal. The State argued that the trial court erred in granting an out-of-time appeal and that Tyner’s unsuccessful habeas petitions should bar us from reversing his conviction. However, we see no basis for the State to appeal the order granting the out-of-time appeal or to file a cross-appeal in this criminal case, and it did neither. See OCGA § 5–7–1 (limiting the matters the State may appeal in criminal cases and not authorizing the State to cross-appeal).1 Likewise, the State has conceded that Tyner’s Boykin claim was dismissed for procedural default when he raised it for the first time in his fourth habeas petition, which was not an adjudication on the merits and thus is not res judicata as to his current claim. See Wiggins v. State, 288 Ga. 169, 170, 702 S.E.2d 865 (2010) (holding that claims raised on direct appeal are not barred by denial of a prior habeas petition raising the identical claims where the habeas court ruled that the claims were procedurally defaulted instead of denying the claims on the merits).

        4. We recognize that reversal of Tyner’s 27–year–old murder conviction may make it difficult for the State to try him or negotiate another plea. We also note that the record does not suggest that Tyner would have refused to go through with his guilty plea if during the plea hearing the prosecutor had added the words “and the right against compulsory self-incrimination” after advising Tyner of his “right to cross-examine witnesses called by the State or call witnesses in your own defense.” Nor has Tyner alleged any such prejudice. Instead, the record as a whole indicates that Tyner freely made an informed and very reasonable decision to plead guilty, with the assistance of able counsel and after colloquy in open court, because he understood that the evidence that he had committed a horrific abduction, sexual assault, and murder was strong and his guilty plea would prevent the State from seeking the death penalty if the case went to trial.

         Nevertheless, in a number of decisions over the past decade this Court has interpreted advice and waiver of the “three Boykin rights” as a strict constitutional requirement, with reversal the automatic consequence if any deviation is found to have occurred. See, e.g., Wilson v. Kemp, 288 Ga. 779, 780–781, 707 S.E.2d 336 (2011); Arnold v. Howerton, 282 Ga. 66, 67–68, 646 S.E.2d 75 (2007). Under those decisions, Tyner’s guilty plea was invalid, and his conviction must be reversed and the case remanded to the trial court for further proceedings.

        Presiding Justice Carley dissented in Wilson, arguing that the Court has interpreted Boykin too formalistically and more strictly than the majority of other courts in the country. See Wilson, 288 Ga. at 780, 782, 707 S.E.2d 336 (Carley, P.J., joined by Nahmias, J., dissenting). Moreover, in 1982 this Court unanimously held, in contradiction to Wilson, that “[w]e decline to adopt a rule which would demand that failure to advise an accused of his right against self-incrimination invalidates a guilty plea in a case where the record reflects that the central considerations of Boykin have otherwise been met.” Goodman v. Davis, 249 Ga. 11, 14, 287 S.E.2d 26 (1982). Compare Wilson, 288 Ga. at 780, 707 S.E.2d 336 (reversing Wilson’s guilty plea because there was no showing that he was specifically advised of the right to remain silent at trial, even though the trial court did advise Wilson that he had “a right to remain silent” at the guilty plea proceeding and Wilson’s counsel testified that he had advised Wilson of the “constitutional rights” he was waiving by pleading guilty). Under Goodman, Tyner’s guilty plea would likely be deemed valid and his conviction affirmed.

         It is not entirely clear how this Court got from Goodman to Wilson.2 Goodman remains on the books, having never been overruled or disapproved. But it was not cited by any party in this case, perhaps because it is so plainly inconsistent with our more recent precedent. The bottom line is this: Until the Supreme Court of the United States grants certiorari in this or a future case and tells us we are applying Boykin incorrectly, or a majority of this Court is convinced that we should re-examine our cases in this area and revert to our earlier understanding of Boykin, any defendant who pleads guilty will be able to secure a reversal of his conviction if the record does not show that he was specifically advised of each of the “three Boykin rights” and he properly presents the issue to a reviewing court.

        Finally, we should note that the State could have avoided the result in this case. The State could have ensured that the right against compulsory self-incrimination was discussed during Tyner’s plea hearing, and it could have ensured that he was advised of and had effective representation regarding his right to appeal his conviction. Indeed, had Tyner filed his direct appeal during the 15 or so years after his 1984 guilty plea, his conviction would likely have been affirmed under Goodman. In addition, while the State was entitled to rely on procedural bars and the successive petition statute to defeat Tyner’s habeas corpus petitions, including the final one in which he raised a Boykin claim, it could have sought alternatively to litigate the merits of his guilty plea in a habeas hearing, had it wanted to expand the record.

        Judgment reversed and case remanded.

        All the Justices concur, except HUNSTEIN, C.J., BENHAM, THOMPSON, HINES and MELTON, JJ., who concur in Divisions 1, 2, and 3, and in the judgment.

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Notes:

        1. Accordingly, the merits of the order granting this out-of-time appeal—including whether the trial court should have held a hearing to determine whether Tyner was at fault for the failure to timely appeal and the effect of the court’s order dismissing Tyner’s first motion for out-of-time appeal—are not before us for decision.

        2. It appears that the first time this Court even mentioned “the three Boykin rights” was in 1999—30 years after Boykin and 17 years after Goodman—as dicta in a decision involving the issue of who has the burden of proof when a recidivism defendant claims that a prior conviction by guilty plea was invalid under Boykin. See Nash v. State, 271 Ga. 281, 285, 519 S.E.2d 893 (1999). The Nash majority quoted a Louisiana case that said:

        If the State introduces anything less than a “perfect” transcript [of the prior guilty plea], … the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.

        State v. Shelton, 621 So.2d 769, 780 (La.1993) (emphasis added). Interestingly, two years later the Court disavowed the immediately preceding portion of this quotation. See Motley v. State, 273 Ga. 732, 733 n. 3, 546 S.E.2d 468 (2001) (“The adoption [in Nash ] of the burden of proof set forth in Shelton was not an adoption of Louisiana’s requirement, if any, that a guilty plea must be made ‘with an articulated waiver of the three Boykin rights.’ ” (emphasis in original)). The “three Boykin rights” appear to have assumed their preeminent status in 2001, in Britt v. Smith, 274 Ga. 611, 556 S.E.2d 435 (2001). There a four-Justice majority held that to make a guilty plea valid, defendant must be advised only of the three constitutional rights mentioned in Boykin, and not the other rights enumerated in Uniform Superior Court Rule 33.8. See 274 Ga. at 614, 556 S.E.2d 435. The majority explained that “our decisions dealing with the validity of a guilty plea are generally couched in terms of the defendant’s waiver of the three Boykin rights,” id. at 614, 556 S.E.2d 435, although the only case cited for this proposition was Nash. Neither Nash nor Britt mentioned Goodman or similar precedent interpreting Boykin more flexibly. In any event, for the last decade the Court has focused strictly and solely on what the record shows regarding the “three Boykin rights.”

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        However, the Tyner case has since been overruled on that issue, because a procedural unfairness is still a fundamental unfairness.  There is much grumbling about the idea of lawyers dealing with technicalities, but substantive justice carries the day, ultimately.

        In other words, the Tyner case was not followed by subsequent cases, reaffirming the ability of a higher court to review an issue if that issue was preserved for the record – all for the purpose of achieving substantial Justice.

        Reviewing the case shows a likely answer for the Court’s stance, in that they disregarded the longstanding rule on preservation of an issue for appeal because they were seeking to ensure access to substantial justice in accordance with the Boykin rule, but they were not trying to “throw the baby out with the bathwater” or encourage frivolous appeals.

        The 2016 Court of Appeals of Georgia case, Raheem v. State,  339 Ga.App. 859, 794 S.E.2d 418 set the tone for subsequent decisions:

Gerard Bradley Kleinrock, Decatur, for Appellant.

Robert D. James Jr., Deborah D. Wellborn, for Appellee.

Barnes, Presiding Judge.

        In these companion appeals, the trial court granted Haneef Abdul Raheem’s motions for out-of-time appeals of his 1981 conviction for motor vehicle theft and his 1982 burglary conviction. Following our review and finding that the record does not establish that he was fully advised of his rights under Boykin v. Alabama , 395 U.S. 238, 243–244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), we reverse the convictions.

        In Raheem v. State , 333 Ga.App. 821, 777 S.E.2d 496 (2015) (Raheem I ), Raheem appealed from the trial court’s denial of his motion for out-of-time appeals of his 1982 conviction for burglary, 1981 conviction for motor-vehicle theft, and 1985 conviction for armed robbery. The relevant facts as presented in Raheem I establish that

[i]n 1981, Raheem pleaded guilty to motor-vehicle theft and hit-and-run. The next year, he pleaded guilty to burglary, and in 1985, to armed robbery. Decades later, in 2013, Raheem filed a pro se motion for an out-of-time appeal from all of these convictions, arguing that his guilty pleas were involuntary because, in each plea proceeding, he was not advised of his right to a jury trial, his right to confront the witnesses against him, or his right against self-incrimination. Raheem further argued that the essential elements of each of his offenses were not explained to him prior to entering his guilty pleas…. Raheem contend[ed] that he is entitled to an out-of-time appeal from each conviction because his guilty pleas were not knowing and voluntary and neither the trial court nor his trial counsel advised him of his limited appellate rights. The State moved to dismiss Raheem’s motion, arguing that, as to at least two of his cases, the plea transcripts show that his guilty pleas were indeed freely and voluntarily entered. The trial court denied the State’s motion, noting that there were no transcripts of any of Raheem’s plea hearings. Raheem then amended his motion for an out-of-time appeal, reiterating the arguments he made in his original motion and asserting that his failure to file a timely appeal in each case was due to ineffective assistance of counsel, rather than any fault of his own. Thereafter, Raheem was appointed counsel to represent him at the hearing on his motion.

(Footnote omitted.) 333 Ga.App. at 822, 777 S.E.2d 496.

        Following a hearing on his motion for an out-of-time appeal, the trial court found that in the 1981 and 1982 cases, “Raheem had established a legitimate issue for appeal because there was no evidence that, during the plea proceedings, he was informed of his right to confront his accusers or his right against compulsory self-incrimination,” but found that the record demonstrated that the plea in the 1985 case was knowing and voluntary. Raheem I , 333 Ga.App. at 822–823, 777 S.E.2d 496. The trial court then “found that Raheem was not entitled to an out-of-time appeal from any of his convictions because he had not shown that he was prejudiced…. [because] there was no evidence that the result of the proceedings would have been different if Raheem had taken his case to trial rather than pleading guilty.” Id. at 823, 777 S.E.2d 496.

        Raheem appealed the denial of his motion. In Raheem I , we affirmed the trial court’s denial of Raheem’s motion for an out-of-time appeal of the 1985 armed-robbery conviction. 333 Ga.App. at 827–828 (2), 777 S.E.2d 496. We further agreed with the trial court that the record demonstrated that during Raheem’s 1981 and 1982 plea proceedings, he was only advised of one of the three constitutional rights he was waiving by pleading guilty pursuant to Boykin , namely, the right to a jury trial, but not informed of his right against self-incrimination or the right to confront his accusers. Raheem I , 333 Ga.App. at 824–825 (1), 777 S.E.2d 496. However, we reversed the trial court’s denial of Raheem’s motion to file an out-of-time appeal as to the 1981 and 1982 convictions, upon finding that the trial court had denied the motion “without resolving the determinative issue of whether the failure to pursue a timely direct appeal was attributable to trial counsel or to Raheem himself.”1 (Footnotes omitted.) Id. at 826 (1), 777 S.E.2d 496. We “remand[ed] the case with direction that the court conduct the requisite inquiry and make findings [as to the 1981 and 1982 convictions] regarding who ultimately bore the responsibility for Raheem’s failure to file a timely appeal.” Id.

Upon remand, and following a hearing, the trial court found that Raheem’s failure to file a timely appeal of the 1981 and 1982 convictions was attributable to his attorney’s failure to advise him that he had the right to appeal and that he had a legitimate issue for appeal, given that the record failed to establish that he was informed of all three Boykin rights. Subsequently, the trial court granted Raheem’s motion for an out-of-time appeal of the two convictions.

        1. Although the State contends that the trial court erred in granting Raheem’s motion for an out-of-time appeal, the merits of the order on Raheem’s motion for an out-of-time appeal are not before us. Tyner v. State , 289 Ga. 592, 594 (3), 714 S.E.2d 577 (2011), overruled in part on other grounds, Lejeune v. McLaughlin , 296 Ga. 291, 297 (2), 766 S.E.2d 803 (2014). There is “no basis for the State to appeal the order granting the out-of-time appeal or to file a cross-appeal in this criminal case, and [in this case] it did neither. See OCGA § 5–7–1 (limiting the matters the State may appeal in criminal cases and not authorizing the State to cross-appeal).” Tyner, 289 Ga. at 594 (3), 714 S.E.2d 577.2

        2. Raheem raises identical arguments on appeal in cases A16A1362 and A16A1363. He maintains that the guilty pleas in his 1981 and 1982 convictions were not knowingly and voluntarily entered because he was not informed of the constitutional rights required under Boykin before he entered his plea. Raheem asserts that the State did not meet its burden of establishing by the record that he was advised of the three Boykin rights he was waiving by pleading guilty.

 

The entry of a guilty plea involves the waiver of three federal constitutional rights: the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. It is the duty of a trial court to establish that the defendant understands the constitutional rights being waived, and the record must reveal the defendant’s waiver of those constitutional rights….. [A]ny defendant who pleads guilty will be able to secure a reversal of his conviction if the record does not show that he was specifically advised of each of the three Boykin rights and he properly presents the issue to a reviewing court. Nevertheless, our Supreme Court has recognized that nothing in Boykin requires the State during a guilty plea proceeding to use any precisely-defined language or ‘magic words.

 

(Citations and punctuation omitted.) Childs v. State , 311 Ga.App. 891, 891–892 (1), 717 S.E.2d 509 (2011).

The State bears the burden on direct review to establish that the plea was knowingly and voluntarily entered. King v. State , 270 Ga. 367, 369, 509 S.E.2d 32 (1998).

The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.

(Citation and punctuation omitted.) Nash v. State , 271 Ga. 281, 285, 519 S.E.2d 893 (1999).

        Here, there is no transcript of the plea hearing of the 1981 and 1982 cases. In both cases, there is a pre-printed form included in the record labeled “Transcript.” The only Boykin right acknowledged on the form is the right to a jury trial. Trial counsel for the 1982 plea testified that “the Boykin rights weren’t specifically considered at that time because the court system was unaware of it or didn’t use the Boykin case in their plea process.” The State concedes that the record on its face does not demonstrate that Raheem was advised of and waived all three Boykin rights, but asserts that any such deficiency was harmless because Raheem never claimed that he would have chosen to go to trial instead of taking a plea, had he be fully advised of all of his Boykin rights.3

Regardless of the practices in place at that time,

[t]he requirement that a plea of guilty must be intelligent and voluntary to be valid has long been recognized. Rather, the procedural element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily. Thus, Boykin imposed a constitutional record-keeping requirement on the states if they hoped to insulate state guilty pleas from future attacks on federal constitutional grounds.*

(Footnotes and punctuation omitted; emphasis supplied). Wiley v. Miles , 282 Ga. 573, 575–576 (2), 652 S.E.2d 562 (2007) (establishing that Boykin applies to guilty pleas entered after June 2, 1969).

        Our appellate courts have “interpreted this advice and waiver of the three Boykin rights as a strict constitutional requirement, with reversal the automatic consequence if any deviation is found to have occurred.” Tyner , 289 Ga. at 595 (4), 714 S.E.2d 577.4 Here it is undisputed that the record does not disclose that Raheem was advised of his right against self-incrimination or the right to confront witnesses.

        Accordingly, because Raheem was not a fully advised of the rights he was waiving by pleading guilty in the 1981 and 1982 cases, the record does not substantiate that his pleas were knowingly and voluntarily. Thus, his guilty pleas are invalid, his 1981 and 1982 convictions are reversed, and both cases are remanded to the trial court for further proceedings consistent with this decision. See Vera v. State , 329 Ga.App. 177, 764 S.E.2d 427 (2014).

Judgments reversed.

Doyle, C.J., Andrews, P.J., Miller, P.J., Ellington, P.J., and Phipps, PJ., Dillard, McFadden, Boggs, Ray, Branch, McMillian, and Peterson, JJ concur. Rickman, and Mercier, JJ concur in judgment only.

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Notes:

1 “An out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal.” (Citation and punctuation omitted.) Simmons v. State , 276 Ga. 525, 526, 579 S.E.2d 735 (2003). “The disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal.”(Citations omitted.) Glass v. State , 248 Ga.App. 91, 92 (1), 545 S.E.2d 360 (2001).

2 We disapprove of the following cases to the extent that they could be relied upon to stand for the proposition that the State can timely appeal from an order granting an out-of-time appeal: Fineza v. State , 255 Ga.App. 835, 567 S.E.2d 17 (2002) ; Towns v. State , 228 Ga.App. 267, 491 S.E.2d 497 (1997).

3 The State asserts this argument within the context of its claim that trial counsel was not ineffective and thus that the motion for the out-of-time appeals should not have been granted. As noted in Division 1, any challenge to that order is not before us on review.

4 Per the holding in Lejeune v. McLaughlin , 296 Ga. 291, 766 S.E.2d 803 (2014), the burden now shifts in habeas corpus cases to the defendant to prove that his guilty plea was not knowing and voluntary, “[b]ut there is nothing in Lejeune remotely suggesting that the State no longer has the burden of demonstrating, in the context of a direct appeal from a judgment of conviction, that a defendant’s guilty plea was voluntary, knowing, and intelligent.” Raheem I , 333 Ga.App. at 821 (1) n. 13, 777 S.E.2d 496.

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This approach is consistent with the approach in Tyner.  Both cases provided justice to the person aggrieved and avoided an absurd result that would be repugnant to the goal of substantial justice.  One case required going beyond the wording of the pleadings to accomplish that end, but one case required staying strictly within the wording of the pleadings to achieve it.

 

Nonetheless, it seems that the safest approach for practitioners is to stick with preserving the issue for appeal!

May 4 17

About Attorney’s Fees in Georgia Child Custody/Visitation Cases

by merlin

Recently, I was asked about attorney’s fees in child custody and visitation matters, and I answered that they are possible, but the American view is generally against granting legal costs of the winner against the loser in civil matters and this attitude seems to carry over in child custody and visitation cases, as well.  In other words, they are theoretically provided for (and legal authority for such fees is there), but that Courts often seem reluctant to grant them.  This requires further explanation, but it is based on two things: 1) observation and experience, and 2) a legal provision that actually tends to control the willingness of the trial judge to grant fees against the parent that it found against.

Section 19-9-3 provides the child custody rules between parties.  It sets down a list of what factors constitute the best interests of the child; it provides for what happens when a parent changes their address; it grants continuing jurisdiction to a Court to make future child custody and visitation determinations; it provides for attorney’s fees, separately from the provision made in Section 19-6-2.

Section 19-9-3(g) reads as follows:

“Except as provided in Code Section 19-6-2, and in addition to the attorney’s fee provisions contained in Code Section 19-6-15, the judge may order reasonable attorney’s fees and expenses of litigation, experts, and the child’s guardian ad litem and other costs of the child custody action and pretrial proceedings to be paid by the parties in proportions and at times determined by the judge. Attorney’s fees may be awarded at both the temporary hearing and the final hearing. A final judgment shall include the amount granted, whether the grant is in full or on account, which may be enforced by attachment for contempt of court or by writ of fieri facias, whether the parties subsequently reconcile or not. An attorney may bring an action in his or her own name to enforce a grant of attorney’s fees made pursuant to this subsection.”

The law expressly states that the determination of payment of attorney’s fees by the parties is to be determined in proportions determined by the judge themselves.  However, the subsection also expressly refers to the general domestic attorney’s fee provision, Section 19-6-2.  Subsection (1) of that Code Section puts the fees in the sound discretion of the court

except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney’s fees, if any, to be allowed against either party”.

(emphasis supplied).

The rules that bind the parties in this kind of contest allow for the attorney’s fees to be apportioned by the trial judge to the contest loser (and they are made more likely to be granted the nastier their conduct throughout the dispute has been; judges are human, too), but a poor person is a poor person, and economic punishment is actually contrary to the goals of the statute.

May 1 17

Security Certificate

by merlin

This site is now accessible via a higher degree of security, at https://www.merlinusmonroe.com (please note the addition of an “s” in the initial address).

 

At Merlinus Goodman Monroe, LLC, your well-being is of paramount importance!

Apr 27 17

Statute of Limitations for a State Action Under 42 U.S.C. § 1983 (2 Years)

by merlin

A question kept plaguing me with regard to claims brought in State of Georgia courts under 42 USC 1983.  I could not determine what statute of limitations was appropriate for such a claim!

In 1984, the Court of Appeals decided the case of Henson v. Am. Family Corp., 171 Ga. App. 724, 321 S.E.2d 205, 205–13 (1984), in which it decided that the statute of limitations that should be applied is “determined by reference to the limitation period governing analogous actions under state law.”  Henson, at 732.  the United States Supreme Court had decided this question before, and they specifically decided against using a state law limitations period which might better comport with the action involved  but to instead use the personal injury limitations period of two years.

 

“8. The trial court was also correct in granting summary judgment to the counterclaim defendants with respect to the civil rights claim. This cause of action was based on 42 U.S.C. § 1983 and was grounded on allegations of a malicious conspiracy between the counterclaim defendants and the judge who issued the TRO. Pretermitting any inquiry into the merits of this claim, we find that it is barred by the statute of limitation.

        Because Congress did not establish a statute of limitation for § 1983 actions, the applicable limitation period is determined by reference to the limitation period governing analogous actions under state law. See Bd. of Regents v. Tomanio, 446 U.S. 478, 483-484, 100 S.Ct. 1790, 1794-1795, 64 L.Ed.2d 440, 447 (1980); Proctor v. Flex, 567 F.2d 635 (5th Cir.1978). In this state, “[a]ctions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year after the right act of action accrues…” OCGA § 9-3-33. Henson first asserted his § 1983 claim in an amendment to his counterclaim filed on February 24, 1982, more than three years after the accrual of the cause of action. Thus, unless the amendment may be said to relate back to the date of filing of the original counterclaim, it is barred by the statute.

        In general, an amendment changing only the legal theory of the action or adding another claim arising out of the same conduct, transaction or occurrence which is the subject of the original pleading will relate back, while an amendment asserting an entirely new cause of action based on wholly different facts will not. See OCGA § 9-11-15 (c); Sam Finley, Inc. v. Interstate Fire Ins. Co., 135 Ga.App. 14 (2), 217 S.E.2d 358 (1975). See also Dover Place Apts. v. A & M Plumbing, etc., Co., 167 Ga.App. 732, 307 S.E.2d 530 (1983). Henson’s original counterclaim sought recovery for breach of contract, tortious interference with contractual rights, and indemnity. Each of these claims for relief is based on facts which are wholly different from those which are alleged in support of the § 1983 claim, and it cannot be gainsaid that the latter constitutes an entirely distinct and unrelated cause of action. Consequently, the amendment does not relate back, and the action is barred. Accord Cole v. Atlanta Gas Light Co., 144 Ga.App. 575, 241 S.E.2d 462 (1978).”

 

This standard of two years was then merely the general custom for such actions, but it was made more explicit, and was directly announced to be the 2-year statute of limitations for personal injury actions in Georgia, by Williams v. City of Atlanta, 794 F.2d 624 (11th Cir. 1986).  That case is presented in its entirety below, and it represents a very thorough example of legal reasoning.

        “Amy D. Levin, Asst. U.S. Atty., Atlanta, Ga., for U.S.A.

        W. Roy Mays, III, City Atty., George R. Ference, Marva Jones Brook, Atlanta, Ga., for City of Atlanta.

        Victoria H. Tobin, Asst. Atty. Gen., Atlanta, Ga., for State of Ga.

        Appeals from the United States District Court for the Northern District of Georgia.

        Before KRAVITCH and HATCHETT, Circuit Judges, and TUTTLE, Senior Circuit Judge.

        KRAVITCH, Circuit Judge:

        These appeals concern the retroactivity of the Supreme Court’s adoption of a new doctrine for statutes of limitation in actions under 42 U.S.C. Sec. 1983. The district court retroactively applied Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), and dismissed the plaintiffs’ complaints.

BACKGROUND
        

On June 22, 1981, a Fulton County, Georgia magistrate issued a warrant for search and seizure at the home of the plaintiffs Homer and Faye Williams. Later that same day local, state and federal law enforcement officials executed the warrant. According to the complaint, the search virtually gutted the Williams home, and resulted in over $10,000 in damage to their property. The complaint also alleged that during the search, officials represented to the Williams that they would be compensated for the damage. The search yielded evidence which was used in the prosecution of the plaintiffs’ son for murder. See Williams v. State, 251 Ga. 749, 312 S.E.2d 40 (1983).

        The Williams unsuccessfully sought compensation for the damage from the City of Atlanta. On June 21, 1985, they filed two identical lawsuits, one in the federal district court, and one in state court. The complaints named as defendants local, state and federal officers, and asserted claims under state law and section 1983. 1 In the case originally filed in the district court (No. 85-8852), the court ruled that the federal claims were barred by the statute of limitations and the district court declined to exercise pendent jurisdiction over the state claims. The federal defendants removed the case filed in the state court (No. 85-8905). The district court then dismissed this action on the same grounds.

Retroactivity of Wilson v. Garcia

        Section 1983 does not contain a statute of limitations; therefore courts must select and apply the most analogous state statute of limitations to section 1983 claims. In the past, this circuit has followed a two-step approach to selecting a statute.

        In this Circuit, the choice of an appropriate state statute has proceeded in two steps. First, the court determines the “essential nature” of the claim. Federal law determines the essential nature of the claim, yet federal law resolves question largely by reference to state law. Second, the court decides which statute of limitations a state court would apply if faced with a claim of the same type or class as the Section 1983 claim.

        Jones v. Preuit & Mauldin, 763 F.2d 1250, 1252-53 (11th Cir.1985) (citations omitted). Accordingly, different statutes of limitations may have applied to various section 1983 actions within a given state.

        Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), has simplified the problem of selecting the appropriate statute of limitations in section 1983 actions. Courts no longer need select the proper limitations statute for each individual section 1983 claim; rather, in each state the courts must select one appropriate limitations period for all section 1983 claims. 105 S.Ct. at 1945. The parties agree that after Wilson v. Garcia the proper limitations period for all section 1983 claims in Georgia is the two year period set forth in O.C.G.A. Sec. 9-3-33 for personal injuries. 2 Accordingly, under Wilson v. Garcia, the appellants’ section 1983 claims are barred.

        Appellants contend, however, that Wilson v. Garcia should not be retroactively applied, 3 and that under the prior law of this circuit the most appropriate limitations period would have been the four year period set forth in O.C.G.A. Sec. 9-3-32 for conversion or destruction of personal property. 4

        In Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 355, 92 S.Ct. 349 (1971) the Supreme Court articulated a three-part test to determine whether a rule of law announced in a judicial decision should be retroactively applied:

First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must … weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.”

        (citations omitted).

        Appellees argue that Wilson did not overrule “clear past precedent,” in Georgia and that, in fact, Wilson is consistent with prior precedent concerning the appropriate statute of limitation for section 1983 actions in Georgia. They assert that cases prior to Wilson v. Garcia uniformly selected the two year personal injury statute for section 1983 actions in Georgia.

        Appellees’ description of the case law in Georgia before Wilson v. Garcia is flawed. Prior to Wilson v. Garcia there was not a uniform statute of limitations in section 1983 actions in Georgia; rather the appropriate statute varied from case to case. None of the cases cited by appellees involved a claim analogous to those advanced in the current case. See Shank v. Spruill, 406 F.2d 756 (5th Cir.1969) (wrongful arrest case; court applied personal injury statute); Wooten v. Sanders, 572 F.2d 500 (5th Cir.1978) (excessive force in arrest case; court applied personal injury statute); Neel v. Rehberg, 577 F.2d 262 (5th Cir.1978) (prisoner case; court applied personal injury statute); McMillian v. City of Rockmart, 653 F.2d 907 (5th Cir. Unit B 1981) (false arrest case; court applied personal injury statute); Sadiqq v. Bramlett, 559 F.Supp. 362 (N.D.Ga.1983) (injury to character and reputation; court applied personal injury statute); Jones v. Bales, 58 F.R.D. 453 (N.D.Ga.1972) (wrongful arrest and detention; court applied personal injury statute), aff’d, 480 F.2d 805 (5th Cir.1973).

        Although the personal injury statute was uniformly applied in cases involving wrongful arrests or challenges to detention, in section 1983 cases involving claims of employment discrimination this court refused to apply the personal injury statute, and instead adopted O.C.G.A. Sec. 9-3-22, Georgia’s statute for enforcement of statutory rights and recovery of back pay and wages. 5 Under that statute section 1983 plaintiffs had two years in which to file a claim for back pay, but twenty years to file for injunctive relief. See, e.g., Whatley v. Department of Education, 673 F.2d 873 (5th Cir. Unit B 1982); Howard v. Roadway Express, 726 F.2d 1529 (11th Cir.1984); Solomon v. Hardison, 746 F.2d 699 (11th Cir.1984). The court specifically recognized that there was not a single statute of limitations for section 1983 in Georgia. Whatley, 673 F.2d at 878.

        We agree with appellees, however, that Wilson v. Garcia did not overrule clear past precedent applicable to the Williams’ case. The Williams cannot point to a single precedent which set forth the statute of limitations for a claim analogous to theirs. Moreover, as discussed above, there is not a single precedent applying the four year limitation period in O.C.G.A. Sec. 9-3-33, for damage to personal property to any section 1983 claim. Indeed, no case from Georgia had applied a period longer than two years to a section 1983 claim for money damages. The process of selecting the most analogous statute of limitations under our former doctrine was a tortuous and uncertain process. Jones v. Preuit & Mauldin, 763 F.2d 1250, 1253 & n. 1 (11th Cir.1985); see also Wilson v. Garcia, 105 S.Ct. at 1945 n. 24 (choice of one analogy over another is often arbitrary). Even if it appears that the most analogous statute would have been the four year period, in the absence of any precedent, it was not reasonable to wait more than two years to file suit. See Smith v. City of Pittsburgh, 764 F.2d 188, 195 (3d Cir.), cert. denied, — U.S. —-, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985); 6 cf. Orr v. General Finance, 697 F.2d 1011 (11th Cir.1983) (where decision established new law in Northern District of Georgia, but did not overrule prior circuit precedent, new rule may be applied retroactively). Because of the lack of precedential case law, any reliance on prior doctrine was unreasonable; thus it is not unfair to apply the new doctrine retroactively.

        Denying retrospective effect to Wilson v. Garcia would not serve the purpose of the Supreme Court’s new rule of uniformity. Different statutes of limitation would continue to apply to various section 1983 claims. Moreover, denying retroactive application in this case would be especially repugnant to the new rule because we would be applying an analogy never even made under the former doctrine. Wilson v. Garcia, 105 S.Ct. at 1945 (criticizing former practice of analogizing each section 1983 claim). Accordingly, the second factor of the Chevron test weighs in favor of retroactivity. Cf. Rogers v. Lockheed, 720 F.2d 1247, 1249 (11th Cir.1983) (prospective application of shorter limitations period would retard new rule), cert. denied, — U.S. —-, 105 S.Ct. 292, 83 L.Ed.2d 227 (1984).

        We also note that the third prong of the Chevron test speaks of “substantial inequity” (emphasis added). Retroactive application will defeat the appellants’ section 1983 claims, where before they may have prevailed. Nevertheless, not one precedent gave appellants reason to wait longer than two years, and accordingly applying a two year period would not work a “substantial inequity.”

        The majority of circuits that have considered the question have applied Wilson v. Garcia retroactively. See Smith v. City of Pittsburgh, 764 F.2d 188 (3d Cir.), cert. denied, — U.S. —-, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985); Wycoff v. Menke, 773 F.2d 983 (8th Cir.1985); Mulligan v. Hazard, 777 F.2d 340 (6th Cir.1985), cert. denied, — U.S. —-, 106 S.Ct. 2902, 90 L.Ed.2d 988 (1986). But see Jackson v. City of Bloomfield, 731 F.2d 652 (10th Cir.1984).

Other Claims

        Although we affirm the dismissal of the section 1983 claims, we must also address the district court’s disposition of the state law claims. In the case initially filed in federal court, the district court held that the state law claims were pendent, and it declined to retain jurisdiction over them after dismissal of the federal claims. Appellants provide no reason why this was an abuse of discretion under United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). The district court’s disposition of the state law claims in the removed case is a different matter. First we note that the district court did not even mention the state law claims. We assume, however, that the district court dismissed the claims for the same reason as it did in the companion case, as an exercise of discretion not to consider pendent state claims once the federal claims in a lawsuit are disposed of. See id. As we explain below, the district court misunderstood the scope of its discretion.

        The case filed in state court was removed under 28 U.S.C. Sec. 1442(a)(1), which allows federal officers to remove actions filed against them in state courts. Section 1442(a)(1) created a special ancillary jurisdiction over the state claims in this situation; that is, under section 1442(a)(1), the district court may take the entire case, even if it would not have jurisdiction over any of the claims against a codefendant. See IFMC Professional Services v. Latin American Home Health, 676 F.2d 152, 158-59 (5th Cir. Unit B 1982). If the federal defendants are dismissed, the district court has a residual ancillary jurisdiction over the state law claims against the nonfederal defendant. The district court may, in its discretion, decline to exercise this jurisdiction. If so, it must remand the case to state court as “removed improvidently and without jurisdiction” under 28 U.S.C. Sec. 1447(c). IFMC Professional Services, 676 F.2d at 160. The reason is simple; if the federal court acting in removal jurisdiction determines that federal jurisdiction does not exist, it remands rather than dismisses because removal was “improvident.” The scope of the district court’s discretion, therefore, was between adjudicating the state law claims or remanding them; it had no discretion to dismiss them. 7 Accordingly, on remand the district court should either adjudicate the remaining claims or remand them.

        Moreover, the district court did not address the state law claims against the federal defendants. These claims were not barred by the statute of limitations and the district court should consider them on remand.

Conclusion

        The order of the district court in No. 85-8852 is AFFIRMED. The order of the district court in No. 85-8905 is AFFIRMED with respect to the federal claims and REVERSED and REMANDED with respect to the remaining claims.

—————

1 The appellants also asserted claims under 42 U.S.C. Secs. 1981, 1985 and 1988. They concede on appeal, however, that the same statute of limitations should apply to these claims as to the section 1983 claim.

2 O.C.G.A. Sec. 9-3-33 provides:

Actions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year after the right of action accrues, and except for actions for injuries to the person involving loss of consortium, which shall be brought within four years after the right of action accrues.

3 In Jones the court applied Wilson v. Garcia retroactively. 763 F.2d at 1253 n. 2. Jones, however, retroactively applied a longer statute of limitations, and the court noted that the defendants did not challenge retroactive application. Moreover, as we discuss below, the propriety of retroactive application of Wilson v. Garcia may vary from state to state.

4 O.C.G.A. Sec. 9-3-32 provides:

Actions for the recovery of personal property, or for damages for the conversion or destruction of the same, shall be brought within four years after the right of action accrues.

5 O.C.G.A. Sec. 9-3-22 provides:

All actions for the enforcement of rights accruing to individuals under statutes or acts of incorporation or by operation of law shall be brought within 20 years after the right of action has accrued; provided, however, that all actions for the recovery of wages, overtime, or damages and penalties accruing under laws respecting the payment of wages and overtime shall be brought within two years after the right of action has accrued.

6 In Smith the plaintiff contended that prior to Wilson v. Garcia a six-year statute applied to his claim. Indeed, prior to Wilson v. Garcia, but after the plaintiff filed his action, the Third Circuit applied the six-year statute to a case analogous to the plaintiffs’. 764 F.2d at 195. Because that precedent was not established until after the plaintiff filed his action, appellant had no reason to rely on a six-year period, and Wilson v. Garcia could be applied retroactively. Id. We find the reasoning of the Smith court persuasive.

7 The appellants did not file a motion to remand the state law claims. The district court, however, sua sponte dismissed the claims against the state defendants after it dismissed the claims against the federal defendants. In any event, section 1447(c) requires the district court to remand if it finds no jurisdiction, regardless of whether a motion is filed.”

Apr 21 17

Seeking Employment

by merlin

Though I am compelled to continue with my ongoing quasi-pro bono effort to assist with Sex Offender reform in the State of Georgia, my current circumstances require that I pursue further third-party employment.

 

I will not seek a short-term job, but rather am seeking to find a place I can stay and do good over the long-term.  If you follow this blog and are in a position to do so, you are welcome to make a competitive offer.  I am applying to firms, and am in need of an actual, separate employer.

Apr 18 17

Connection Between Federal Rules and Georgia Statutory Interpretation?

by merlin

An issue that I have taken with the State’s position regarding the execution of its laws regarding removal from the Sex Offender Registry is the proper Discovery scheme to be applied, and I believe that my position is supported by the way that SORNA, the federal Sex Offender Registration and Notification Act, is handled as concerns Discovery efforts under the federal scheme.  The statute is unabashedly civil and, as such, is subject to the provisions of the Federal Rules of Civil Procedure.  Rule 26 provides the scope of information that is available under this broad statutory scheme and also appears to be the underlying model for the Civil Discovery scheme that I have urged the Courts to adopt regarding petitions for removal from the Georgia Sex Offender Registry.

 

FRCP 26 requires mandatory, up-front disclosures immediately (“without awaiting a discovery request”).  It sets a time limit for such disclosures and for objections to be made, and establishes what privileges are applicable.  It sets down certain requirements for the use of experts, which would seem to be absolutely relevant in the case of a person seeking removal from the Sex Offender Registry.  It establishes the scope of Discovery (and, as should be noted, this same standard is reflected in the Georgia Code).  Lastly, it requires that the attorney responsible for responding to the Discovery items put forward take personal responsibility for them.  This seems very, very important for establishing responsibility (such as responsibility for evaluating a person’s likelihood of future criminal sexual conduct).

 

The text of FRCP 26 is as follows (taken in part from the excellent legal information website operated by Cornell University).  It reads, in pertinent part, as follows:

“(a) Required Disclosures.

(1) Initial Disclosure.

(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

(B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure:

(i) an action for review on an administrative record;

(ii) a forfeiture action in rem arising from a federal statute;

(iii) a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;

(iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;

(v) an action to enforce or quash an administrative summons or subpoena;

(vi) an action by the United States to recover benefit payments;

(vii) an action by the United States to collect on a student loan guaranteed by the United States;

(viii) a proceeding ancillary to a proceeding in another court; and

(ix) an action to enforce an arbitration award.

(C) Time for Initial Disclosures—In General. A party must make the initial disclosures at or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure.

(D) Time for Initial Disclosures—For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.

(E) Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures.

(2) Disclosure of Expert Testimony.

(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.

(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony. The report must contain:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and testimony in the case.

(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the

court, if the witness is not required to provide a written report, this disclosure must state:

(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and

(ii) a summary of the facts and opinions to which the witness is expected to testify.

(D) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:

(i) at least 90 days before the date set for trial or for the case to be ready for trial; or

(ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party’s disclosure.

(E) Supplementing the Disclosure. The parties must supplement these disclosures when required under Rule 26(e).

(3) Pretrial Disclosures.

(A) In General. In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment:

(i) the name and, if not previously provided, the address and telephone number of each witness—separately identifying those the party expects to present and those it may call if the need arises;

(ii) the designation of those witnesses whose testimony the party expects to present by deposition and, if not taken stenographically, a transcript of the pertinent parts of the deposition; and

(iii) an identification of each document or other exhibit, including summaries of other evidence—separately identifying those items the party expects to offer and those it may offer if the need arises.

(B) Time for Pretrial Disclosures; Objections. Unless the court orders otherwise, these disclosures must be made at least 30 days before trial. Within 14 days after they are made, unless the court sets a different time, a party may serve and promptly file a list of the following objections: any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(A)(ii); and any objection, together with the grounds for it, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii). An objection not so made—except for one under Federal Rule of Evidence 402 or 403—is waived unless excused by the court for good cause.

(4) Form of Disclosures. Unless the court orders otherwise, all disclosures under Rule 26(a) must be in writing, signed, and served.

(b) Discovery Scope and Limits.

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

(2) Limitations on Frequency and Extent.

(A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36.

(B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

(3) Trial Preparation: Materials.

(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1); and

(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.

(C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person’s own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either:

(i) a written statement that the person has signed or otherwise adopted or approved; or

(ii) a contemporaneous stenographic, mechanical, electrical, or other recording—or a transcription of it—that recites substantially verbatim the person’s oral statement.

(4) Trial Preparation: Experts.

(A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.

(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.

(C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

(i) relate to compensation for the expert’s study or testimony;

(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or

(iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.

(D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:

(i) as provided in Rule 35(b); or

(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.

(E) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery:

(i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D); and

(ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert’s facts and opinions.

(5) Claiming Privilege or Protecting Trial-Preparation Materials.

(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:

(i) expressly make the claim; and

(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.

(B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.

(c) Protective Orders.

(1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(A) forbidding the disclosure or discovery;

(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;

(C) prescribing a discovery method other than the one selected by the party seeking discovery;

(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;

(E) designating the persons who may be present while the discovery is conducted;

(F) requiring that a deposition be sealed and opened only on court order;

(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and

(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.

(2) Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.

(3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.

(d) Timing and Sequence of Discovery.

(1) Timing. A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.

(2) Early Rule 34 Requests.

Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered:

(i) to that party by any other party, and

(ii) by that party to any plaintiff or to any other party that has been served.

(B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.

(3) Sequence. Unlessthe parties stipulate or the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice:

(A) methods of discovery may be used in any sequence; and

(B) discovery by one party does not require any other party to delay its discovery.

(e) Supplementing Disclosures and Responses.

(1) In General. A party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response:

(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or

(B) as ordered by the court.

(2) Expert Witness. For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party’s duty to supplement extends both to information included in the report and to information given during the expert’s deposition. Any additions or changes to this information must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due.

(f) Conference of the Parties; Planning for Discovery.

(1) Conference Timing. Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicable—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).

(2) Conference Content; Parties’ Responsibilities. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person.

(3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:

(A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made;

(B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;

(C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;

(D) any issues about claims of privilege or of protection as trial-preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502;

(E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and

(F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c).

(4) Expedited Schedule. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule:

(A) require the parties’ conference to occur less than 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b); and

(B) require the written report outlining the discovery plan to be filed less than 14 days after the parties’ conference, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference.

(g) Signing Disclosures and Discovery Requests, Responses, and Objections.

(1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name—or by the party personally, if unrepresented—and must state the signer’s address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry:

(A) with respect to a disclosure, it is complete and correct as of the time it is made; and

(B) with respect to a discovery request, response, or objection, it is:

(i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;

(ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and

(iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

(2) Failure to Sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney’s or party’s attention.

(3) Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.”

Mar 25 17

What is a “Similar Transaction” Barring Release from the Georgia Sex Offender Registry?

by merlin

The Georgia Code statute providing qualifications for release from the Georgia Sex Offender Registry lists certain threshold requirements for eligibility.  One of these is that there be no “evidence of a relevant similar transaction”.  The intent behind such a rule seems evident, if the purpose of the statute is considered, since the Registry exists to keep the public notified about people who have an established propensity for sexual violence.  Otherwise, the Registry is forbidden ex post facto punishment; the law (as every defender of the Registry is fond of reminding its detractors) has been upheld provided it serves the purpose of public notification and is NOT punitive itself.

With this purpose in mind for the barring of persons that committed a “relevant similar transaction”, the rules that bind the Courts pertaining to statutory interpretation are applied to the statutory guidelines:

“In construing a statute, we must consider the legislative intent, “keeping in view at all times the old law, the evil, and the remedy.” Language in one part of the statute must be construed in light of the legislature’s intent as found in the whole statute. Although appellate courts generally do not construe statutory language that is plain and unequivocal, judicial construction is required when words construed literally would defeat the legislature’s purpose.”

Echols v. Thomas, 265 Ga. 474, 475 (Ga. 1995).

The case that raises this issue of statutory interpretation is Yelverton v. State, 300 Ga. 312 (Ga. 2016).  Of particular note is the dissent’s insistence on a particular statutory interpretation which, as you may note, appears to bear substantial similarity to the particularly harsh approach to sex offender sentencing and rehabilitation taken in almost all cases by the State.  It is worth noting that the majority of the Court chose to pursue an interpretation that hinged on avoiding an unproven past allegation, insisting on a merciful bent to the law.  Probably the strongest authority for the stance they chose is found at Footnote 15, where it says

“We note that Yelverton’s trial took place before this Court’s decision in Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), which clarified that, under our old Evidence Code, the admissibility of similar transaction evidence was governed by former Uniform Superior Court Rule 31.3 (B), and that the State had to make three affirmative showings before similar transaction evidence was admissible. Specifically, before any evidence of independent offenses or acts [could] be admitted into evidence, a hearing [had to be] be held pursuant to Uniform Superior Court Rule 31.3 (B). At that hearing, the state [had to] make three affirmative showings as to each independent offense or act it [sought] to introduce. The first of these affirmative showings [was] that the state [sought] to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which ha[d] been deemed to be an exception to the general rule of inadmissibility. The second affirmative showing [was] that there [was] sufficient evidence to establish that the accused committed the independent offense or act. The third [was] that there [was] a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tend[ed] to prove the latter.”

Their interpretation, (in my opinion) improperly abandoned when the evidentiary Code was updated in 2013, helps the door to rehabilitation stay open, rather than focusing on wasted retribution.  I do not know whether reconsideration was sought for this outcome, but I do not think it was.  If you know, please contact me!  The opinion is below:

__________________________________________________________________

Atlanta November 30, 2016

        The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

        It appearing that the attached opinion decides a second-term appeal, which must be concluded by the end of the September Term, it is ordered that a motion for reconsideration, if any, must be received in the Supreme Court E-Filing/Docket (SCED) System by 4:30 p.m. on Monday, December 5, 2016.

SUPREME COURT OF THE STATE OF GEORGIA

Clerk’s Office, Atlanta

        I hereby certify that the above is a true extract from the minutes of the Supreme Court of Georgia

        Witness my signature and the seal of said court hereto affixed the day and year last above written.

        /s/, Chief Deputy Clerk

BLACKWELL, Justice.

        More than 25 years ago, Raymond Yelverton was convicted of child molestation and aggravated child molestation, see  Yelverton v. State, 199 Ga. App. 41 (403 SE2d 816) (1991), and as a result, he is required to register as a sexual offender. See OCGA § 42-1-12. Pursuant to OCGA§ 42-1-19 (a) (4), Yelverton filed a petition for release from the registration requirements. The court below denied his petition, noting that evidence of a similar transaction was admitted at his criminal trial, and concluding that the admission of that evidence rendered Yelverton ineligible for release. Yelverton appeals, asserting that the court below misconstrued the law concerning his eligibility for release.1 We agree, and we reverse the judgment below and remand for further proceedings consistent with this opinion.

  • In 1990, Yelverton was tried by a Tift County jury for the molestation of his daughter. The molestation involved fondling and oral sex, and it occurred between August 1984 and July 1987, when his daughter was between the ages of nine and 13 years. See Yelverton, 199 Ga. App. at 42. At trial, the State presented testimony about a contemporaneous sexual encounter between Yelverton and an adult woman, which the criminal court admitted as evidence of his “proclivity toward nonconsensual sexual conduct”:

[The woman] testified that she lived in [Yelverton’s] household for over a year, while she was 19 to 20 years old, and that in 1985 he attempted to have sexual relations with her. [She] testified that one night . . . she awoke suddenly from sleep because [Yelverton], who had entered her room, was touching her vagina. She testified that [Yelverton] left when she told him no.

Id. at 42 (1). According to his petition for release, Yelverton testified at his criminal trial that the sexual encounter with the adult woman happened, but he denied that she was asleep at the time, and he said that the encounter was consensual.2 The jury found Yelverton guilty of child molestation and aggravated child molestation of his daughter, but we do not know what, if anything, the jury thought about the sexual encounter with the adult woman. We have no reason to think that the jury made any finding about that encounter, and in the absence of such a finding, we cannot know whether the jury concluded that the encounter was consensual, concluded that it was not consensual, or disregarded it entirely.

        For the molestation of his daughter, Yelverton was sentenced to imprisonment for 20 years, and he was released on parole in May 2002. Upon his release, he registered as a sexual offender,3 and according to his petition for release, he subsequently was classified by the Sexual Offender Registration Review Board as a Level I offender, a classification that signifies that “the sexual offender is a low sex offense risk and low recidivism risk for future sexual offenses.” OCGA § 42-1-12 (a) (12). See also Gregory v. Sexual Offender Registration Review Board, 298 Ga. 675, 680-682 (1) (784 SE2d 392) (2016). Yelverton completed his sentence in February 2010.

        In March 2015, Yelverton filed his petition for release in the Superior Court of Tift County,4 alleging that he is eligible for release under OCGA § 42-1-19 (a) (4). In pertinent part, that paragraph provides as follows:

An individual required to register pursuant to Code Section 42-1-12 may petition a superior court for release from registration requirements . . . if the individual . . . [h]as completed all prison, parole, supervised release, and probation for the offense which required registration pursuant to Code Section 42-1-12 and meets the criteria set forth in subparagraphs (c) (1) (A) through (c) (1) (F) of Code Section 17-10-6.2. OCGA § 42-1-19 (a) (4).5 If the court in which the petition is filed finds that the petitioner satisfies these conditions and is, therefore, eligible for release, the court then must consider the likelihood that the petitioner will commit additional sexual offenses. If the court “finds by a preponderance of the evidence that the individual does not pose a substantial risk of perpetrating any future dangerous sexual offense,”6 the court has discretion to release the petitioner from the registration requirements. OCGA § 42-1-19 (f). When presented with a petition for release, a court may consider “[a]ny evidence introduced by the petitioner,” OCGA § 42-1-19(d)(1), “[a]ny evidence introduced by the district attorney or sheriff,” OCGA § 42-1-19(d)(2), and “[a]ny other relevant evidence.” OCGA § 42-1-19(d)(3).

        In this case, the court below determined that Yelverton was not eligible for release under OCGA § 42-1-19 (a) (4) because he did not meet all of the criteria set forth in OCGA § 17-10-6.2 (c) (1). Originally enacted in 2006,7 OCGA § 17-10-6.2 concerns sentencing for certain sexual offenses.8 Subsection (b) requires a sentencing court to impose a mandatory minimum sentence, but subsection (c) permits a sentencing court to deviate from the mandatory minimum sentence if the criteria set forth in subparagraphs (c) (1) (A) through (c) (1) (F) are satisfied. Those criteria are as follows:

(A) The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor a prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of offenses prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16;

(B) The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense;

(C) The court has not found evidence of a relevant similar transaction;

(D) The victim did not suffer any intentional physical harm during the commission of the offense;

(E) The offense did not involve the transportation of the victim; and

(F) The victim was not physically restrained during the commission of the offense.

OCGA § 17-10-6.2 (c) (1) (A)-(F).

In 2010, the General Assembly incorporated these same criteria by reference into OCGA § 42-1-19, specifying that satisfaction of the criteria is a necessary condition of eligibility for release from the sexual offender registration requirements under OCGA § 42-1-19 (a) (4).9

        The court below determined that Yelverton failed to meet the criterion set forth in OCGA § 17-10-6.2 (c) (1) (C), and for that reason, he is not eligible for release under OCGA § 42-1-19 (a) (4). That determination appears to have been based entirely on the fact that evidence of the sexual encounter with an adult woman was admitted against Yelverton as a “similar transaction” at his criminal trial. The court below explained:

[Paragraph] (a) (4) specifically states a person seeking relief must meet the criteria set forth in OCGA § 17-10-6.2 (c) (1) (A) – (F). Because there was evidence of a similar transaction admitted at the trial of his case and deemed relevant by the original trial court, Petitioner does not meet the criteria in OCGA § 17-10-6.2 (c) (1) and thus cannot be granted relief from registration.

Based on that determination, the court below denied the petition for release.10

        Yelverton contends that the court below misconstrued OCGA § 17-10-6.2 (c) (1) (C), as that provision is incorporated by reference in OCGA § 42-1-19 (a) (4). In particular, Yelverton argues that a decision to admit evidence of an independent act against the accused in a criminal trial does not always and necessarily require a finding that there is “evidence of a relevant similar transaction” for the purposes of OCGA §§ 17-10-6.2 (c) (1) (C) and 42-1-19 (a) (4). For that reason, Yelverton says, a court considering a petition for release under OCGA § 42-1-19 (a) (4) must decide for itself whether the evidence presented against the petitioner in his criminal trial — or other evidence presented at the hearing on the petition for release — amounts to “evidence of a relevant similar transaction.” About these things, Yelverton is correct.

        Only a few days ago, this Court considered the meaning of OCGA § 17-10-6.2 (c) (1) (C) — albeit in the context of criminal sentencing, not a petition for release from sexual offender registration requirements — in Evans v. State, ___ Ga. ___ (Case No. S16G0280, decided Nov. 21, 2016). There, the defendant was tried and convicted of child molestation and the sexual exploitation of a child. When the trial court sentenced the defendant for the child molestation, the court concluded that it could not deviate from the mandatory minimum sentence because there was “evidence of a relevant similar transaction,” namely, the sexual exploitation of a child of which the defendant also was convicted. We upheld the imposition of the mandatory minimum sentence, notwithstanding that the evidence of the sexual exploitation was admitted at trial not as a “similar transaction,” but instead as evidence of a crime charged in the indictment. To begin, we explained that “[t]he term ‘relevant similar transaction’ is not defined in OCGA § 17-10-6.2, but when that statute was enacted in 2006, ‘similar transaction’ had a well established legal meaning, and referred to an act independent of the criminal charge at issue, but similar to it.” Id. at ___ (Slip Op. at 3-4) (citation omitted). Even so, we noted, “similar transaction” has differing usages in different contexts. In the context of criminal trials under our old Evidence Code, “similar transaction” commonly was used as shorthand to describe evidence of an act independent of the crimes charged in the indictment, which was offered and admitted for a particular purpose under the standard that this Court laid down in Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). See Evans, ___ Ga. at ___ (Slip Op. at 10). But in the context of sentencing, we explained, “relevant similar transaction” — as that term is used in OCGA § 17-10-6.2 (c) (1) (C) with reference to the mandatory minimum sentence for a sexual offense — is most naturally and reasonably understood to mean an independent but similar sexual offense that shows the defendant to be a repeat sexual offender, whether or not that independent offense is charged in the same indictment, charged in a separate indictment, or uncharged. See id. at ___ (Slip Op. at 12). In reaching that conclusion, we drew heavily upon the context of OCGA § 17-10-6.2 (c) (1) (C), which suggests that the General Assembly meant by that provision to “prohibit any downward deviation from the mandatory minimum sentence when the defendant is one who commits multiple separate sexual offenses.” Id. Our reasoning in Evans is instructive here.

        Just as the statutory context of OCGA § 17-10-6.2 (c) (1) (C) suggests that the provision is most naturally and reasonably understood to prohibit deviations from the mandatory minimum sentence for repeat sexual offenders, the context of its incorporation by reference into OCGA § 42-1-19 (a) (4) suggests that it is likewise most naturally and reasonably understood to render a sexual offender ineligible for release from the registration requirements if he has committed independent but similar sexual offenses that show him to be a repeat offender.11 Indeed, even when a sexual offender is not categorically ineligible for release under OCGA § 42-1-19 (a) (4), a superior court properly may release the offender from the registration requirements only upon a finding “by a preponderance of the evidence that the individual does not pose a substantial risk of perpetrating any future dangerous sexual offense.” OCGA § 42-1-19 (f). Moreover, the likelihood of a sexual offender committing additional sexual offenses is the basis of the three-tiered classification that is integral to the sexual offender registration scheme as a whole. See, e.g., OCGA §§ 42-1-12 (a) (12), (a) (13), (a) (21) (B), 42-1-14 (a). As it is used in OCGA § 17-10-6.2 (c) (1) (C), “evidence of a relevant similar transaction” has the same meaning in both the sentencing and sexual offender registration contexts.

        Accordingly, as it is used in OCGA § 17-10-6.2 (c) (1) (C) and incorporated by reference in OCGA § 42-1-19 (a) (4), “evidence of a relevant similar transaction” does not simply mean evidence of an independent act that is admitted pursuant to the Williams standard (under the old Evidence Code) — or OCGA § 24-4-404 (b) (under the new Evidence Code) — in a case in which the defendant is charged with a sexual offense. Indeed, not all “similar transaction” evidence admitted pursuant to the Williams standard is, in fact, evidence of an independent sexual offense, inasmuch as “similar transaction evidence was not limited to a defendant’s previous illegal conduct.” State v. Ashley, 299 Ga. 450, 455 (2) (a) (788 SE2d 796) (2016) (citations omitted). See also Alatise v. State, 291 Ga. 428, 431 (4) (728 SE2d 592) (2012). Here, of course, the evidence offered by the State against Yelverton at his 1990 molestation trial about the encounter with an adult woman potentially demonstrates an independent and similar sexual offense, inasmuch as the woman testified that Yelverton touched her sexually and without her consent. See OCGA § 16-6-22.1. Nevertheless, Yelverton claimed that the encounter was consensual, and we do not know how the jury assessed that evidence, if at all. Nor do we know what the criminal trial court thought of the evidence. To admit it as a “similar transaction” at the 1990 molestation trial, the criminal trial court did not have to find that Yelverton actually touched the woman without her consent. Rather, the criminal trial court only had to find that the State had made a prima facie showing, such that the jury could find by a preponderance of the evidence that Yelverton had done so (even if the judge did not believe the witness). See Freeman v. State, 268 Ga. 185, 187-188 (4) (486 SE2d 348) (1997) (adopting standard of proof for admissibility of other acts evidence established under Federal Rule of Evidence 404 (b) by Huddleston v. United States, 485 U. S. 681, 685 (108 SCt 1496, 99 LE2d 771) (1988)). For that reason, neither the verdict nor the evidentiary ruling in the 1990 molestation trial can be interpreted as a definitive determination that Yelverton touched the woman without her consent and thereby committed a sexual offense. Accordingly, neither the verdict nor the evidentiary ruling conclusively establishes that the encounter with the woman is a “relevant similar transaction” for the purposes of OCGA §§ 17-10-6.2 (c) (1) (C) and 42-1-19 (a) (4).

        In these circumstances, it was for the court below — the court hearing the petition for release — to determine for itself whether there is “evidence of a relevant similar transaction” that would render Yelverton ineligible for release. The court below erred when it failed to make such a determination, and so, we must reverse its judgment. We remand the case to the court below for further proceedings consistent with this opinion.

      In light of our determination that the court below misconstrued the applicable statutory law and that its judgment must be reversed, we need not reach the constitutional issue raised by Yelverton. See note 1 supra.

        Judgment reversed and case remanded. All the Justices concur, except Thompson, C. J., and Melton, J., who dissent.

        MELTON, Justice, dissenting.

        Because the majority’s interpretation of OCGA § 17-10-6.2 (c) (1) (C) runs contrary to the plain meaning of the statute as expressed by the Legislature, I must respectfully dissent from the majority’s erroneous conclusion that the removal court erred by concluding that it could not remove Yelverton from the sex offender registry due to the existence of evidence of a relevant similar transaction that had been properly admitted into evidence at Yeleverton’s 1990 child molestation trial.

        As noted by the majority, after completing his twenty-year sentence for child molestation and aggravated child molestation, on July 15, 2011, Yelverton  filed a petition for removal from the sex offender registry under § 42-1-19 (a) (4), which allows removal only if the offender

[h]as completed all prison, parole, supervised release, and probation for the offense which required registration . . . and meets the criteria set forth in subparagraphs (c) (1) (A) through (c) (1) (F) of Code Section 17-10-6.2.

        If the offender meets all of the criteria set forth in subparagraphs (c) (1) (A) through (c) (1) (F) of OCGA § 17-10-6.2, [t]he [removal] court may issue an order releasing the individual from registration requirements or residency or employment restrictions, in whole or part, if the court finds by a preponderance of the evidence that the individual does not pose a substantial risk of perpetrating any future dangerous sexual offense.

OCGA § 42-1-19 (f).

        On March 5, 2012, the removal court properly denied the petition for removal, finding that, because “evidence of a relevant similar transaction” had been properly introduced at Yelverton‘s original 1990 trial,12 the court could not “now second guess the admissibility or relevance” of that similar transaction for purposes of releasing Yelverton from the registration requirements. See OCGA § 17-10-6.2 (c) (1) (C) (sexual offender can only be removed from sex offender registry where “[t]he [removal] court has not found evidence of a relevant similar transaction”).

        Over two years later, on March 9, 2015, Yelverton filed a second petition for removal from the sex offender registry.13 However, on June 12, 2015, the removal court also denied this petition, explaining:

It is not necessary. . . for this Court to consider whether [Yelverton] meets the additional requirements of 42-1-19 (c) (2) or whether he poses a substantial risk of perpetrating any future dangerous sexual offense, because he does not meet the initial criteria for relief under 42-1-19 (a) (4) due to the similar transaction evidence admitted in the trial of his case. . . . Because there was evidence of a similar transaction admitted at the trial of his case and deemed relevant by the original trial court, [Yelverton] does not meet the criteria in OCGA § 17-10-6.2 (c) (1) and thus cannot be granted relief from registration.

        Additionally, the removal court rejected Yelverton’s constitutional argument that, as applied to him, the interplay of OCGA § 42-1-19 (a) (4) and OCGA § 17-10-6.2 (c) (1) resulted in the imposition of ex post facto punishment.

        The removal court was correct on both issues. With regard to its inability to remove Yelverton from the sex offender registry, because OCGA § 42-1-19 (a) (4) requires that all of the criteria of OCGA §§ 17-10-6.2 (c) (1) (A) through (c) (1) (F) be met before a sexual offender may be considered for removal from the registration requirements, and because “evidence of a relevant similar transaction” existed from Yelverton’s 1990 trial, the removal court properly concluded that Yelverton did not qualify for removal from the sex offender registry as a matter of law.

        Again, OCGA § 17-10-6.2 (c) (1) (C) provides that a sexual offender may only be considered for removal from the registration requirements where “[t]he court has not found evidence of a relevant similar transaction.” Id. In determining whether the removal court’s interpretation of this statute was correct, “we apply the fundamental rules of statutory construction that require us to construe [the] statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.” (Citations omitted.Slakman v. Continental Cas. Co., 277 Ga. 189, 191 (587 SE2d 24) (2003). In this regard, “we must presume that the General Assembly meant what it said and said what it meant.” Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citation and punctuation omitted). We must also seek to effectuate the intent of the legislature. OCGA § 1-3-1 (a). In doing so, we must keep in mind that, while “[t]he common and customary usages of the words [in a statute] are important . . . so is their context.” (Citations omitted.) Chan v. Ellis, 296 Ga. 838, 839 (1) (770 SE2d 851) (2015). To find such context, a court “construing language in any one part of a statute . . . should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole.” Sikes v. State, 268 Ga. 19, 21 (2) (485 SE2d 206) (1997).

        Bearing these principles in mind, a straightforward reading of OCGA § 17-10-6.2 (c) (1) (C) reveals that, where the removal court finds in the record in the defendant’s particular case that evidence of a relevant similar transaction already exists from the defendant’s original trial, that defendant may not be considered for removal from the registration requirements. OCGA § 17-10-6.2 (c) (1) (C) only allows a sexual offender to be considered for removal from the registration requirements where “[t]he [removal] court has not found evidence of a relevant similar transaction.” Where, as here, a relevant and admissible similar transaction had already been admitted into evidence in Yelverton’s 1990 trial, the removal court could not ignore the existence of this similar transaction and claim that the removal court itself “has not found evidence of a relevant similar transaction” simply because it was not the court that determined the initial relevance and admissibility of the similar transaction in the defendant’s case. Because “evidence” of a relevant similar transaction existed in the record from Yelverton’s trial, once the removal court found that it existed, the removal court was prohibited from further considering Yelverton’s removal from the sex offender registry.14 Id.

        Indeed, at the time of Yelverton’s trial in 1990, for similar transaction evidence to be admissible, the State had to make two showings:

       First, there [had to] be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there [had to be] sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tend[ed] to prove the latter. Bacon v. State, 209 Ga. 261 (71 SE2d 615) (1952); Howard v. State, 211 Ga. 186 (84 SE2d 455) (1954).15  French v. State, 237 Ga. 620, 621 (3) (229 SE2d 410) (1976).

     The State made these showings to the trial court with respect to a separate sexual offense committed by Yelverton, and the admission into evidence of this separate offense as a similar transaction at trial was upheld on appeal. Yelverton, supra, 199 Ga. App. at 43 (1). Therefore, there can be no dispute that “evidence” of a relevant similar transaction existed in connection with the child molestation case against Yelverton in 1990 that led to his conviction and his need to register as a sexual offender. The Legislature has made no distinction in the plain text of OCGA § 17-10-6.2 (c) (1) (C) between “relevant similar transaction[s]” admitted at trial under the standards that existed at the time of Yelverton’s trial and the standards that existed thereafter. See Williams, supra. See also OCGA § § 24-4-414 and 24-4-404 (b). Instead, the statute focuses on the mere existence of “evidence” of a relevant similar transaction under the specific circumstances of a particular defendant’s case. See OCGA § 17-10-6.2 (c) (1) (C). Once such a relevant similar transaction has been found, a removal court cannot ignore its existence to allow for the defendant to become eligible for removal from the sex offender registry. Id.

   Yelverton and the majority argue that OCGA § 17-10-6.2 (c)(1)(C) should be interpreted to find that the Legislature intended for the court reviewing a petition for removal to make an independent determination about whether a previously admitted similar transaction is still “relevant” to the case of the convicted sexual offender at the time that the offender has petitioned for removal. However, as shown above, this interpretation misconstrues the plain language of OCGA § 17-10-6.2 (c) (1) (C) indicating that a petitioner can only be considered for removal from the registration requirements where evidence of a relevant similar transaction does not already exist at the time that the defendant petitions for removal. Id. Also, as explained more fully below, when read in its proper context, OCGA § 17-10-6.2 (c)(1)(C) does not reveal a Legislative intent for the court reviewing a petition for removal to make a present and independent determination about similar transactions from the past that have already been determined to be relevant to a sexual offender’s case. Instead, the Legislature has revealed an intent for the reviewing court to accept the circumstances as they existed at the time of the sexual offender’s conviction when considering its determination as to whether the sexual offender may be appropriately removed from the sex offender registry.

        In this connection, the language of OCGA § 17-10-6.2 (c)(1)(C) must be read in conjunction with the provisions of OCGA § 17-10-6.2 (c)(1) as a whole to find the proper legislative context for that particular subparagraph. See Sikes, supra. This is especially true where, as here, a sexual offender cannot be considered for removal from the registry requirements if any of “the criteria set forth in subparagraphs (c)(1)(A) through (c)(1)(F) of [OCGA §] 17-10-6.2” – including the requirement that the court has not found evidence of a relevant similar transaction under subparagraph (c) (1) (C) – have not been met. OCGA § 42-1-19 (a)(4). The remaining criteria that must be met under OCGA § 17-10-6.2 (c)(1) include:

A) The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 [i.e., “Sexual Offenses”] or Part 2 of Article 3 of Chapter 12 of Title 16 [i.e., “Obscenity and Related Offenses” pertaining to minors], nor a prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of offenses prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16;

B) The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense;

* * *

D) The victim did not suffer any intentional physical harm during the commission of the offense;

(E) The offense did not involve the transportation of the victim; and

(F) The victim was not physically restrained during the commission of the offense.

(Emphasis supplied.) Id.

        Notably, every single factor to be considered for determining whether a sexual offender may be removed from the registration requirements looks backwards in time to the state of affairs that existed at the time that the offender engaged in the activities that gave rise to his or her conviction. If the offender has prior convictions for sexual offenses; used a deadly weapon during the crime that gave rise to his or her need to register as a sexual offender; physically harmed the victim during the crime in question; transported the victim during the crime; or physically restrained the victim during the crime; the offender cannot be removed from the sex offender registry. See OCGA § 42-1-19 (a)(4) and OCGA § 17-10-6.2 (c)(1). The court reviewing a petition for removal makes no independent determination about these factors that already existed at the time of the offense that led to the perpetrator’s need to register. If any the factors were present at the time of the conviction that led to the petitioner’s registration, the petitioner cannot be removed from the registration requirements. Id.

        As is the case with all of the other factors outlined in OCGA § 17-10-6.2 (c)(1), when the record before the removal court reveals the existence of evidence of a relevant similar transaction from the defendant’s trial, the existence of that similar transaction bars a petitioner from being removed from the sex offender registry. This shows a consistent Legislative intent in OCGA § 17-10-6.2 to ensure that those who have engaged in certain violent or other statutorily prohibited conduct in the past cannot take advantage of the opportunity to be removed from the sex offender registration requirements. Specifically, in the case of OCGA § 17-10-6.2 (c)(1)(C), if “evidence” exists to show that a petitioner has engaged in independent conduct in the past that was admissible as a relevant similar transaction in that sex offender’s trial, that defendant is not eligible to be removed from the sex offender registry. Such a scheme falls directly in line with the Legislature’s goal of reducing the likelihood that individuals who “pose a substantial risk of perpetrating any future dangerous sexual offense” will be released from the sexual offender registration requirements. OCGA § 42-1-19 (f).

        I therefore believe that the trial court properly interpreted OCGA § 42-1-19 (a)(4) and OCGA § 17-10-6.2 (c)(1)(C), and would find no error in the trial court’s denial of Yelverton’s petition for removal from the sex offender registration requirements.

        Because I disagree with the majority’s conclusion that the trial court erred in its interpretation of OCGA § 42-1-19 (a)(4) and OCGA § 17-10-6.2 (c)(1)(C), I also disagree with its failure to reach the constitutional issue addressed by the removal court regarding alleged ex post facto punishment being imposed by the denial of Yelverton’s petition for removal from the sex offender registry. With regard to this constitutional issue, I would conclude that OCGA § 42-1-19 simply is not an ex post facto law:

[A]n ex post facto law punishes conduct which was innocent when done; alters the quality or degree of, or inflicts a greater punishment for, a crime committed previously; requires less or different evidence than was required before the crime was committed; or deprives the offender of any substantial right possessed at the time the offender committed the act.  (Citations omitted.) 

Thompson v. State, 278 Ga. 394, 395 (603 SE2d 233) (2004).

           OCGA § 42 -1-19 does not impose any sort of criminal punishment or deprive Yelverton of any substantial right that he possessed at the time that he committed his offenses. Rather, the statute provides a means for certain qualified individuals to be removed from the sex offender registry – a registry which, itself, does not impose any punishment through an ex post facto law. See Smith v. Doe, 538 U. S. 84 (II) (A) (123 SCt 1140, 155 LE2d 164) (2003) (statutory requirement for retroactive registration of sex offenders was nonpunitive and did not itself constitute an ex post facto law).The fact that Yelverton has to remain on the sex offender registry in light of his failed petition does nothing to change the circumstances that existed prior to the filing of his petition. He was not being punished through an ex post facto law from having to register as a sex offender prior to filing his petition, nor is he being punished now through the law that would have allowed him to be removed from the sex offender registry had he been qualified for such removal.

        For all of the aforementioned reasons, I respectfully dissent from the majority.

        I am authorized to state that Chief Justice Thompson joins in this dissent.

——–

Footnotes:

  1. Yelverton filed an application for discretionary appeal, see OCGA § 5-6-35 (a) (5.2), and we granted his application. Besides his contention that the court below misconstrued the law concerning his eligibility, Yelverton also argues that the sexual offender registration requirements are unconstitutional as applied to him. Although we need not resolve the constitutional question to decide this appeal, we note that the constitutional question forms the basis for our exercise of appellate jurisdiction in this case. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1) (Supreme Court has appellate jurisdiction in “all cases in which the constitutionality of a law, ordinance, or constitutional provision has been drawn in question”).
  2. The record of the criminal trial was not made a part of the record of the proceedings on the petition for release. For that reason, our only information about what happened at the criminal trial comes from the decision of the Court of Appeals in Yelverton and the petition itself. Because the facts alleged in the petition appear to be consistent with Yelverton and uncontroverted (at least at this point), we accept the truth of those allegations for the purposes of this appeal.
  3. General Assembly first adopted the sexual offender registration requirements in 1996. See Ga. L. 1996, p. 1520. Those requirements apply, however, to “any individual who . . . [h]as previously been convicted of a criminal offense against a victim who is a minor and may be released from prison or placed on parole, supervised release, or probation on or after July 1, 1996.” OCGA § 42-1-12 (e) (3). An offense that “consists of . . . [c]riminal sexual conduct toward a minor” is a “criminal offense against a victim who is a minor,” OCGA § 42-1-12 (a) (9) (A), and child molestation and aggravated child molestation are “criminal offense[s] against a victim who is a minor.” See Spivey v. State, 274 Ga. App. 834, 837 (2) (a) (619 SE2d 346) (2005). Yelverton is, therefore, subject to the registration requirements.
  4. A petition for release under OCGA § 42-1-19 must be filed “in the superior court of the jurisdiction in which the [petitioner] was convicted [of the crime that renders him subject to the registration requirements],” unless the petitioner was convicted in a jurisdiction outside Georgia. OCGA § 42-1-19 (b) (1).
  5. To be eligible for release under OCGA § 42-1-19 (a) (4), a petitioner also must show either that ten years have elapsed since his completion of his sentence, see OCGA § 42-1-19 (c) (2) (A), or that he has been classified by the Sexual Offender Registration Review Board as a Level I sexual offender. See OCGA § 42-1-19 (c) (2) (B). As we noted earlier, Yelverton alleged in his petition he has been classified as a Level I sexual offender.
  6. In this context, a “[d]angerous sexual offense” is any criminal offense, or the attempt to commit any criminal offense, under Title 16 as specified in this paragraph or any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of the following offenses:

(i)  Aggravated assault with the intent to rape in violation of Code Section 16-5-21;

(ii) Kidnapping in violation of Code Section 16-5-40 which involves a victim who is less than 14 years of age, except by a parent;

(iii) Trafficking a person for sexual servitude in violation of Code Section 16-5-46;

(iv) Rape in violation of Code Section 16-6-1;

(v) Sodomy in violation of Code Section 16-6-2;

(vi) Aggravated sodomy in violation of Code Section 16-6-2;

(vii) Statutory rape in violation of Code Section 16-6-3, if the individual convicted of the offense is 21 years of age or older;

(viii) Child molestation in violation of Code Section 16-6-4;

(ix) Aggravated child molestation in violation of Code Section 16-6-4, unless the person was convicted of a misdemeanor offense;

(x) Enticing a child for indecent purposes in violation of Code Section 16-6-5;

(xi) Sexual assault against persons in custody in violation of Code Section 16-6-5.1;

(xii) Incest in violation of Code Section 16-6-22;

(xiii) A second conviction for sexual battery in violation of Code Section 16-6-22.1;

(xiv) Aggravated sexual battery in violation of Code Section 16-6-22.2;

(xv) Sexual exploitation of children in violation of Code Section 16-12-100;

(xvi) Electronically furnishing obscene material to minors in violation of Code Section 16-12-100.1;

(xvii) Computer pornography and child exploitation in violation of Code Section 16-12-100.2;

(xviii) Obscene telephone contact in violation of Code Section 16-12-100.3; or

(xix) Any conduct which, by its nature, is a sexual offense against a victim who is a minor or an attempt to commit a sexual offense against a victim who is a minor.

OCGA § 42-1-12 (a) (10) (B.1).

  1. See Ga. L. 2006, p. 379, § 21. The statute subsequently was amended in 2013. See Ga. L. 2013, p. 222, § 9.
  2. The sexual offenses to which OCGA § 17-10-6.2 applies are identified in subsection (a):

As used in this Code section, the term “sexual offense” means:

(1) Aggravated assault with the intent to rape, as defined in Code Section 16-5-21;

(2) False imprisonment, as defined in Code Section 16-5-41, if the victim is not the child of the defendant and the victim is less than 14 years of age;

(3) Sodomy, as defined in Code Section 16-6-2, unless subject to the provisions of subsection (d) of Code Section 16-6-2;

(4) Statutory rape, as defined in Code Section 16-6-3, if the person convicted of the crime is 21 years of age or older;

(5) Child molestation, as defined in subsection (a) of Code Section 16-6-4, unless subject to the provisions of paragraph (2) of subsection (b) of Code Section 16-6-4;

(6) Enticing a child for indecent purposes, as defined in Code Section 16-6-5, unless subject to the provisions of subsection (c) of Code Section 16-6-5;

(7) Sexual assault against persons in custody, as defined in Code Section 16-6-5.1;

(8) Incest, as defined in Code Section 16-6-22;

(9) A second or subsequent conviction for sexual battery, as defined in Code Section 16-6-22.1; or

(10) Sexual exploitation of children, as defined in Code Section 16-12-100.

OCGA § 17-10-6.2 (a).

    1. See Ga. L. 2010, p. 168, § 15.

 

10.

  • This is Yelverton’s second petition for release. He filed his first petition in July 2011. That petition was denied upon the same ground as the second petition. Yelverton attempted to appeal from the denial of his first petition, but his appeal was dismissed by the Court of Appeals because he failed to file an application for discretionary review. We note that OCGA § 42-1-19 (b) (3) contemplates the filing of successive petitions for release, and in any event, the State does not contend in this appeal that the denial of the first petition is res judicata or otherwise works an estoppel to bar the second petition.

 

 

11.

  • If a sexual offender has a prior conviction for a sexual offense, he is rendered ineligible for release from the registration requirements by the incorporation of OCGA § 17-10-6.2 (c) (1) (A) into OCGA § 42-1-19 (a) (4). The incorporation of OCGA § 17-10-6.2 (c) (1) (C) deals with independent sexual offenses for which the sexual offender has not previously been convicted.

 

 

1.

  • Indeed, the Court of Appeals upheld the admissibility of the similar transaction introduced at Yelverton’s 1990 trial. Yelverton v. State, 199 Ga. App. 41 (1) (403 SE2d 816) (1991).

 

 

2.

  • OCGA § 42-1-19 (b) (3) says, “If a petition for release [from the sex offender registry] is denied, another petition for release shall not be filed within a period of two years from the date of the final order on a previous petition.”

 

 

3.

  • This is not to say that, in a situation where a similar transaction was not used at a defendant’s trial, a removal court cold not also find to be relevant evidence of a similar transaction that arose after the defendant’s trial and before that defendant petitioned for removal from the sex offender registry.

 

 

4.

  • We note that Yelverton’s trial took place before this Court’s decision in Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), which clarified that, under our old Evidence Code, the admissibility of similar transaction evidence was governed by former Uniform Superior Court Rule 31.3 (B), and that the State had to make three affirmative showings before similar transaction evidence was admissible. Specifically,

 

before any evidence of independent offenses or acts [could] be admitted into evidence, a hearing [had to be] be held pursuant to Uniform Superior Court Rule 31.3 (B). At that hearing, the state [had to] make three affirmative showings as to each independent offense or act it [sought] to introduce. The first of these affirmative showings [was] that the state [sought] to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which ha[d] been deemed to be an exception to the general rule of inadmissibility. The second affirmative showing [was] that there [was] sufficient evidence to establish that the accused committed the independent offense or act. The third [was] that there [was] a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tend[ed] to prove the latter.

Id. at 642 (2) (b).
Uniform Superior Court Rule 31.3 (B) was later deleted after the enactment of Georgia’s new Evidence Code, which took effect on January 1, 2013. The admissibility of similar transaction evidence in child molestation cases is now governed by OCGA § 24-4-414. See also OCGA § 24-4-404 (b).

——–

 

Mar 20 17

Georgia Ante-Litem Notices Are Not Needed for § 1983 Actions

by merlin

In an action involving 42 USC § 1983, it is unnecessary to provide the antelitem notice that is called for by the Georgia Code (§ 36-33-5), according to relevant law on the topic.  The Code section that requires that notice be given to bring an action that overcomes the sovereign immunity enjoyed by a governmental unit reads as follows:

“(a) No person, firm, or corporation having a claim for money damages against any municipal corporation on account of injuries to person or property shall bring any action against the municipal corporation for such injuries, without first giving notice as provided in this Code section.

(b) Within six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person, firm, or corporation having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment, stating the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury. No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment.

(c) Upon the presentation of such claim, the governing authority shall consider and act upon the claim within 30 days from the presentation; and the action of the governing authority, unless it results in the settlement thereof, shall in no sense be a bar to an action therefor in the courts.

(d) The running of the statute of limitations shall be suspended during the time that the demand for payment is pending before such authorities without action on their part.

(e) The description of the extent of the injury required in subsection (b) of this Code section shall include the specific amount of monetary damages being sought from the municipal corporation. The amount of monetary damages set forth in such claim shall constitute an offer of compromise. In the event such claim is not settled by the municipal corporation and the claimant litigates such claim, the amount of monetary damage set forth in such claim shall not be binding on the claimant.

(f) A claim submitted under this Code section shall be served upon the mayor or the chairperson of the city council or city commission, as the case may be, by delivering the claim to such official personally or by certified mail or statutory overnight delivery.”

However, if an action is brought pursuant to 42 USC § 1983, it does not require this notice be provided, since that section does not recognize or address that notice.  The case that talks about this is Armour v. Davidson, 203 Ga.App. 12, 416 S.E.2d 92 (1992), which involved a lawsuit brought for redress from a warrantless arrest, in which the plaintiffs wanted to prove a policy or custom by the municipality or warrantless arrests.  One of the arguments used by the City against the breaching of sovereign immunity was the failure of the plaintiffs to give the notice required by statute (described above), but the Court noted that “Plaintiff correctly contends the trial court erred in holding that plaintiff’s action against the City is barred by plaintiff’s failure to give ante item notice pursuant to OCGA § 36-33-5. The notice provisions of that statute do not apply to actions filed pursuant to 42 USC § 1983.”

The opinion is as follows:

__________________________________________________________________________

John L. Watson, Jr., Jonesboro, for appellant.

        Mullins, Whalen & Shepherd, Andrew J. Whalen III, Oliver, Duckworth, Sparger & Winkle, David P. Winkle, Jonesboro, for appellees.

        POPE, Judge.

        On February 9, 1988, plaintiff/appellant Alonzo S. Armour and his wife went to the City of Fayetteville (the “City”) to register to vote. They originally went to a portion of City Hall where the voter registrar was not located. They were informed that they could not register there and would need to go to another building. Before plaintiff left that building, however, he had a heated argument with defendant/appellee John Davidson, the director of the water and sewer department for the City. The parties dispute the degree of physical contact associated with that altercation, but not that an altercation ensued.

        Plaintiff and his wife then went to the proper place to register to vote and were in the process of registering when plaintiff was approached by two City policemen. The policemen arrested plaintiff, without a warrant, on the charge of simple battery against defendant John Davidson. A warrant was presented at the jail for his arrest approximately two hours later. While plaintiff was being booked and fingerprinted, he suffered a heart attack and required hospitalization for his condition. A grand jury considered the simple battery charge against plaintiff and returned a no bill.

        Plaintiff brought this action against defendants Davidson and the City pursuant to 42 U.S.C. § 1983 contending that the acts of defendants denied plaintiff his statutory and constitutional rights. Defendants filed a motion for summary judgment, which the trial court granted. Plaintiff appeals the trial court’s grant of summary judgment in favor of the City.

        1. Plaintiff correctly contends the trial court erred in holding that plaintiff’s action against the City is barred by plaintiff’s failure to give ante litem notice pursuant to OCGA § 36-33-5. The notice provisions of that statute do not apply to actions filed pursuant to 42 U.S.C. § 1983. City of Atlanta v. J.A. Jones Constr. Co., 195 Ga.App. 72, 78(6), 392 S.E.2d 564, rev’d on other grounds, 260 Ga. 658, 398 S.E.2d 369 (1990), cert. denied, 500 U.S. 928, 111 S.Ct. 2042, 114 L.Ed.2d 126 (1991).

        2. We conclude, however, that the trial court correctly granted summary judgment to the City on the basis of sovereign immunity. In Pembaur v. Cincinnati, 475 U.S. 469, 480-83, 106 S.Ct. 1292, 1298-1300, 89 L.Ed.2d 452 (1986), the Supreme Court set forth a three-part test for determining when the acts of a municipal officer subjects a municipality to liability under section 1983: (1) the municipality officially sanctioned or ordered the act; (2) the actor was a municipal officer with final policy authority; or (3) the action was taken pursuant to a policy adopted by officials responsible under state law for making policy in that area. If none of these theories are satisfied, the municipality may not be held liable pursuant to Section 1983.

        While plaintiff’s allegations against the City are vague, it appears that plaintiff alleges the City sanctioned the actions of the police officer making his arrest. In support of its motion for summary judgment, the City submitted the affidavit of its City Manager which stated inter alia that “the City of Fayetteville has adopted a policy for its Police Department based upon the Fourth Amendment to the United States Constitution arrest and detention standard, which provides that no person shall be arrested without a warrant unless the officer has probable cause to believe a criminal offense occurred within his presence or otherwise falls within an exception prescribed by law. This policy is made known to all police officers who are trained in said policy and expected to abide therewith.” In response to the defendants’ motion for summary judgment, plaintiff stated in his affidavit that “it is the policy, custom, usage and regulation of the City of Fayetteville, Georgia, that when a person is arrested without a warrant for their arrest that they are immediately taken to the City Jail of the City of Fayetteville, Georgia and held there awaiting the issuance of an arrest warrant.”

        Essentially, plaintiff argues that it is the custom of the City to allow for warrantless arrest and then to detain the arrestee for a period of time until a warrant can be obtained. To meet its burden of showing such a policy, when the municipality has moved for summary judgment on the basis that the City had no such custom or policy, the plaintiff must allege a “series of incidents of unconstitutional conduct suggesting ‘the existence of a widespread practice that … constitute[s] a “custom or usage” with the force of law.’ [Cits.]” Jacobs v. Paynter, 727 F.Supp. 1212, 1216 (N.D.Ill.1989) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 926, 99 L.Ed.2d 107 (1988)). The allegations in plaintiff’s affidavit only allege proof of a single incident of errant behavior, which cannot constitute a sufficient basis for imposing liability on the City. Merritt v. County of Los Angeles, 875 F.2d 765, 770 (9th Cir.1989); Tokuhama v. City & County of Honolulu, 751 F.Supp. 1385 (10) (D.Hawaii 1989). The City may not be held liable for the negligent acts of a police officer. See OCGA [203 Ga.App. 14] § 36-33-3; City of Cave Spring v. Mason, 252 Ga. 3, 310 S.E.2d 892 (1984).

        Judgment affirmed.

        BIRDSONG, P.J., and COOPER, J., concur.

Mar 1 17

Child Support Modification Dates From the Petition’s Service, Not From the Involuntary Loss of Income

by merlin

Something needs to be clarified, because there appears to be some confusion about the issue of exactly when a downward modification of a monthly child support obligation due to an involuntary loss of income begins to accrue.

Initially, I wrote about this issue when certain key cases on the last major revision of Georgia’s child support guidelines occurred, and there was, perhaps, some confusion about the proper implementation of a potential downward modification.  The subsection at issue is OCGA Section 19-6-15(j), which reads as follows:

“Involuntary loss of income.

(1) In the event a parent suffers an involuntary termination of employment, has an extended involuntary loss of average weekly hours, is involved in an organized strike, incurs a loss of health, or similar involuntary adversity resulting in a loss of income of 25 percent or more, then the portion of child support attributable to lost income shall not accrue from the date of the service of the petition for modification, provided that service is made on the other parent. It shall not be considered an involuntary termination of employment if the parent has left the employer without good cause in connection with the parent’s most recent work.

(2) In the event a modification action is filed pursuant to this subsection, the court shall make every effort to expedite hearing such action.

(3) The court may, at its discretion, phase in the new child support award over a period of up to one year with the phasing in being largely evenly distributed with at least an initial immediate adjustment of not less than 25 percent of the difference and at least one intermediate adjustment prior to the final adjustment at the end of the phase-in period.”

I have emphasized the language “…shall not accrue…” in subsection (j)(1), above, because this is very different from the idea that a downward modification is meant to be retroactive.  It isn’t, but the difference is not something folks appreciate without having it pointed out to them.  This means that the same child support award they had will keep on, month to month.  However, it won’t accrue (if the involuntary termination of employment or involuntary loss of income is recognized by the trial court that hears the case) from the date of service of the petition for modification.  This means, of course, that the petition for downward modification needs to be done ASAP, because that debt will just keep growing bigger until it’s addressed!

The following case discusses this, and also discusses what has to be done to collect that deficit (it cannot be done during a downward modification petition hearing, but instead requires that the person to whom the child support is owed move for contempt on the amount that was unpaid).  This is Marlowe v. Marlowe, 297 Ga. 116 (Ga. 2015), in which the husband petitioned for a downward modification based on involuntary loss of income and the wife counterclaimed for an upward modification.

“Nathaniel Michael Smith, McDonough, for appellant.

Gregory A. Futch, McDonough, for appellee.

Opinion

BENHAM, Justice.

The parties to this case were divorced in 2007, and a child support order was entered as part of the final judgment pursuant to which appellee Joseph Andrew Marlowe (Husband) was to pay appellant Ronni Green Marlowe (Wife) $992 per month for support of their three children. In 2013, Husband filed a petition to modify the original child support award downward on the ground that his income had diminished. Wife counterclaimed, seeking an upward modification on the ground that she now had work-related child care expenses that were not considered in the original child support award since at the time of the original award the children were not attending daycare. The trial court modified Husband’s child support obligation downward to $771 per month. This Court granted Wife’s application for discretionary appeal for the purpose of determining whether the trial court abused its discretion in determining the amount of child support due in light of OCGA § 19–6–15. For the reasons set forth below, we affirm in part and vacate in part.

  • Wife first asserts the trial court applied the wrong figure from the Georgia Schedule of Basic Child Support Obligations, set forth at OCGA § 19–6–15(o ), for the support of the three children. We agree. The Child Support Addendum attached to the trial court’s order recites that support is to be provided for three children. Applying the schedule for the combined gross income of these parents for three children, the basic child support obligation from the table in OCGA § 19–6–15(o ) is $1,316. The worksheet on which the trial court’s award is based shows a figure of $1,135, which is the figure from the table for two children. This portion of the order is vacated and, on remand, the trial court is instructed to revise its child support award accordingly by considering the proper basic child support for three children and any other relevant factors that may impact its final child support determination.

We find no error, however, in the trial court’s adjustments for work-related child care expenses entered on Schedule D of the Child Support Worksheet.1 Testimony at the hearing established that the oldest child did not require work-related child care expenses because he received after-school and summer day care from Husband and his family. Testimony also showed that Wife received assistance from a government program for part of the child care expenses, after which she paid the remaining $65 per week out-of-pocket for child care expenses for both the younger children during the school year, and $105 per week for both children during the summer months. Accordingly, the evidence shows the trial court’s figure of $4,020 for annual child care costs used in calculating the child support award was supported by the evidence and did not prejudice Wife.2

  • Wife asserts the trial court abused its discretion by failing to impute income to Husband or to find he was willfully underemployed. Indeed, “the trial court is empowered to impute income for willful or voluntary unemployment or underemployment. See OCGA § 19–6–15(f)(4)(D)….” Friday v. Friday, 294 Ga. 687, 689(1), 755 S.E.2d 707 (2014). Evidence was presented that Husband had earned significantly more in wages in past jobs than in his current employment. At the time the original child support order was entered, Husband’s adjusted gross monthly income was found to be $2,904, whereas in the modification order now on appeal, his income was found to be $2,166.67. Husband testified that, since the divorce, he had earned as much as $22.00 per  hour, at which point he was employed as an electronic access control systems technologist. Testimony also established he was a certified law enforcement officer, at which he would earn significantly more than he currently earns, and that in the past he made money on the side by repairing computers and installing electronic equipment for small businesses. The evidence shows Husband voluntarily terminated some of the jobs he has held in the time since the original child support order was entered.

Relying upon Galvin v. Galvin3 , Wife asserts that even if Husband’s loss of income was involuntary, this alone is insufficient to prevent the trial court from imputing income to him where, as here, she claims, “there is evidence of prolonged unemployment and a dearth of evidence of [Husband’s] efforts to obtain employment.” In Galvin, this Court affirmed the trial court’s modification order that was based, in part, upon the imputation of income to a father who had remained unemployed for over two years.4 The record in this case, however, fails to show prolonged unemployment and, in fact, Husband was employed at the time of the hearing in a job he had held for over one year. The record contains evidence of Husband’s efforts to obtain employment at those times in the past in which he had been unemployed either voluntarily or involuntarily.

By way of explaining his employment choices, Husband testified that, as a result of the economic downturn since the date of the final divorce decree, the last job he held in the access control systems industry paid only $2.50 more per hour than his current job, and that he had voluntarily resigned from that position because the job required him to work out of state, thus requiring him to travel to Georgia on weekends at his own expense in order to spend time with his children. He testified, without dispute, that employment in this field was currently difficult to find. He further testified that his current position, paying $12.50 per hour, offered him a steady and stable job with normal working hours and weekends off, allowing him to spend time with his children and relieving him from worry about being laid off for lack of work. According to Husband’s testimony, he had not pursued a job in law enforcement because he did not expect he would be able to control his schedule. He offered no reason for not pursuing additional income by repairing computers in his spare time, other than to point out that he was employed full time.

Past income, alone, is not conclusive evidence of earning capacity. See Herrin v. Herrin, 287 Ga. 427, 428, 696 S.E.2d 626 (2010) (reversing the trial court’s upward modification of child support based upon a finding of underemployment that was not supported by the evidence). Other factors to be considered include a party’s education, training, and specialized skill; evidence of suppression of income; the party’s assets and liabilities; and other funds available to the party for paying child support. Id. Arguably, in this case conflicting evidence was presented relating to other factors the trial court could consider when making its determination on the parties’ requests for modification. Evidence was presented regarding Husband’s training and skills from which it could be found that Husband was capable of earning more income than he was currently making, in a job that did not appear to require any specialized skill. No evidence was presented regarding other assets or funds available to Husband from which he could continue to pay the original amount of monthly child support award. And Husband’s testimony regarding the reasons for his career choices and the decline in his earnings refuted Wife’s assertion that he had intentionally suppressed his income in order to avoid his child support obligation. “[T]his Court will not set aside the trial court’s factual findings [in a child support proceeding] unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses.” (Citation and punctuation omitted.) Autrey v. Autrey, 288 Ga. 283, 284–285(2), 702 S.E.2d 878 (2010) ; see also Walton v. Walton, 285 Ga. 706(2), 681 S.E.2d 165 (2009). Given the evidence presented in this case, we cannot say that the trial court’s findings regarding Husband’s earning capacity were clearly erroneous. Instead, record evidence supports these findings and no abuse of discretion in granting Husband’s petition for downward modification is shown. See Strunk v. Strunk, 294 Ga. 280, 282(1), 754 S.E.2d 1 (2013).

Judgment affirmed in part and vacated in part, and case remanded with direction.

All the Justices concur.

——–

Notes:

1 At least, we find no error to Wife’s disadvantage; Husband asserts that an error was made in Wife’s favor with respect to adjustments for work-related child care expenses, but he does not challenge this finding on appeal.

2 If, in the future, Wife receives less in child care assistance as a result of her no longer meeting the criteria for assistance, as her testimony showed she surmised, then avenues are available to Wife to seek a further modification of the child support award. At the time of the trial court’s order, however, the award appears to meet or exceed the evidence presented of current out-of-pocket child care costs.

3 288 Ga. 125, 126(2), 702 S.E.2d 155 (2010).

4 Id. at 125 n. 1, 702 S.E.2d 155.

——–“

Feb 25 17

Initial Word on Class Actions in Georgia Under the Civil Practice Act

by merlin

Class actions under State law in Georgia are controlled by Chapter 11 of Title 9, the Civil Practice Title.  Specifically, they are provided for by Section 9-11-23, which reads as follows:

“(a) One or more members of a class may sue or be sued as representative parties on behalf of all only if:

(1) The class is so numerous that joinder of all members is impracticable;

(2) There are questions of law or fact common to the class;

(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) The representative parties will fairly and adequately protect the interests of the class.

(b) An action may be maintained as a class action if the prerequisites of subsection (a) of this Code section are satisfied, and, in addition:

(1) The prosecution of separate actions by or against individual members of the class would create a risk of:

(A) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or

(B) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests;

(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:

(A) The interest of members of the class in individually controlling the prosecution or defense of separate actions;

(B) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;

(C) The desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

(D) The difficulties likely to be encountered in the management of a class action.

(c)(1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subsection may be conditional, and may be altered or amended before the decision on the merits.

(2) In any class action maintained under paragraph (3) of subsection (b) of this Code section, the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that:

(A) The court will exclude the member from the class if the member so requests by a specified date;

(B) The judgment, whether favorable or not, will include all members who do not request exclusion; and

(C) Any member who does not request exclusion may, if the member desires, enter an appearance through counsel.

(3) The judgment in an action maintained as a class action under paragraph (1) or (2) of subsection (b) of this Code section, whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under paragraph (3) of subsection (b) of this Code section, whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in paragraph (2) of subsection (b) of this Code section was directed, and who have not requested exclusion, and whom the court finds to be members of the class.

(4) When appropriate:

(A) An action may be brought or maintained as a class action with respect to particular issues; or

(B) A class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.

(d) In the conduct of actions to which this rule applies, the court may make appropriate orders:

(1) Determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;

(2) Requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action;

(3) Imposing conditions on the representative parties or on intervenors; and

(4) Requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly.

The orders may be combined with other orders, and may be altered or amended by the court as may be desirable from time to time.

(e) A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.

(f)(1) After the commencement of an action in which claims or defenses are purported to be asserted on behalf of or against a class, the court shall hold a conference among all named parties to the action for the purpose of establishing a schedule for any discovery germane to the issue of whether the requested class should or should not be certified. At this conference, the court shall set a date for a hearing on the issue of class certification. Except for good cause shown, such hearing may not be set sooner than 90 days nor later than 180 days after the date on which the court issues its scheduling order pursuant to the conference. If evidence is presented by affidavit, the parties shall have an opportunity to cross-examine affiants as to such testimony offered by affidavit.

(2) Except for good cause shown, the court shall stay all discovery directed solely to the merits of the claims or defenses in the action until the court has issued its written decision regarding certification of the class.

(3) When deciding whether a requested class is to be certified, the court shall enter a written order addressing whether the factors required by this Code section for certification of a class have been met and specifying the findings of fact and conclusions of law on which the court has based its decision with regard to whether each such factor has been established. In so doing, the court may treat a factor as having been established if all parties to the action have so stipulated on the record.

(4) Nothing in this Code section shall affect, or be construed to affect, any provision of Code Section 9-11-12 or Code Section 9-11-56.

(g) A court’s order certifying a class or refusing to certify a class shall be appealable in the same manner as a final order to the appellate court which would otherwise have jurisdiction over the appeal from a final order in the action. The appellate courts shall expedite resolution of any appeals taken under this Code section. Such appeal may only be filed within 30 days of the order certifying or refusing to certify the class. During the pendency of any such appeal, the action in the trial court shall be stayed in all respects.”

 

As the Code section indicates, this is a really complex procedure that is very, very carefully spelled out!  I have written concerning this matter once before, when I wrote concerning a family law seminar in 2014, but it was only one provision (subsection (f)), mentioned in passing, and only in terms of the stay of Discovery mentioned above as regards that area of law.

An important thing to keep in mind is that even if litigation has the ability to affect a large class of persons, it will not be “certified as a class action” unless there is a motion made to do so.  The case below describes just such a situation (in passing, because it took the Court no more than a moment to rule on error for which there was no evidence).  The case is Estate of J.O. Seamans v. True, 247 Ga. 721, 279 S.E.2d 447 (Ga. 1981), which involved a dispute over a summary judgment that was issued on a clubhouse fence in an alleged common area in Glynn County:

Q. Robert Henry, Atlanta, for The Executrix of the Estate of J. O. Seamans, et al.

 M. Fleming Martin, Brunswick, for Mary D. True, et al.

        JORDAN, Chief Justice.

        The Executrix of the Estate of J. O. Seamans, et al., as owners of lots in the Village Bluff subdivision, St. Simons Island, filed a complaint in the Glynn Superior Court alleging that the Georgia-Kentucky Co. had recorded the Village Bluff Subdivision Plat in 1922 designating an area of the subdivision as a “Club Reservation”; that, as a result of the recording of the plat and “recitals” in their deeds, the plaintiffs were entitled to the full use of the “Club Reservation” except for its use as a clubhouse for the benefit of the purchasers of subdivision lots; that the Georgia-Kentucky Co. had sold part of the “Club Reservation” to an individual to whose title the defendants, Mary D. True and Arthur True had succeeded; that said defendants had attempted to erect a fence barring the plaintiffs from access to their part of the “Club Reservation”; and, that the plaintiffs were entitled to an injunction against the defendants’ violating their rights to the “Club Reservation”.

        The plaintiffs also alleged that they were entitled to an injunction against the defendants’ barring their access to the defendants’ part of the “Club Reservation” because the Georgia-Kentucky Co. had sold the subdivision lots on the “representation” that the area designated as the “Club Reservation” would be a site for the benefit of purchasers of subdivision lots.

        Mary D. True and Arthur True filed a motion for summary judgment which the trial court granted. Plaintiffs appeal. We reverse.

        1. The plaintiffs argue that the trial court erred in failing to certify the present cause of action as a class action.

        A trial court does not abuse its discretion in failing to certify, as a class action, a cause of action (such as the present cause of action) in which the plaintiffs do not file a motion to have the action so certified.

        This enumeration of error is without merit. See, Code Ann. § 81A-123(a); Hill v. General Finance Corp. of Georgia, 144 Ga.App. 434, 241 S.E.2d 282 (1977).

        2. The plaintiffs argue that the trial court erred in granting the defendants’ motion for summary judgment.

        The plaintiffs’ complaint states a claim for the enforcement of both an express and an implied easement upon which relief can be granted. Regarding implied easements, see, Walker v. Duncan, 236 Ga. 331, 332, 223 S.E.2d 675 (1976); Stanfield v. Brewton, 228 Ga. 92, 184 S.E.2d 352 (1971).

        The defendants argue however that the evidence offered in support of their motion for summary judgment sustains the trial court’s grant of said motion because it establishes, without contradiction, that the plaintiffs abandoned the alleged easements by non-use; that the plaintiffs were divested of title to the alleged easements by the defendants’ adverse possession of the easements for seven years, and that the plaintiffs were barred from enforcing the alleged easements by laches.

        “(M)ere non-user (of an easement) for twenty years affords a presumption, though not a conclusive one, of extinguishment, even in cases where no other circumstances indicating an intention to abandon appears….” Gilbert v. Reynolds, 233 Ga. 488, 493, 212 S.E.2d 332 (1975).

        The defendants swore that “no public use has ever been made of the … ‘Club Reservation’, other than casually and intermittently”; and that “since (their) acquisition of the property in 1958, (they) have exercised the prerogatives of ownership in regard to (their part of the Club Reservation) by fencing in said property, cleaning it up periodically, and depositing concrete blocks and other items along the edge of the bluff on Village Creek so that said bluff will not erode.”

        The defendants’ evidence does not demand a finding either that the plaintiffs had not used their alleged easements or that non-use had continued for the necessary twenty years.

        Accordingly, we hold that the defendants’ evidence does not demand a finding that the plaintiffs had abandoned their alleged easements.

        “Possession to be the foundation of a prescription must be in the right of the possessor, and not of another; must not have originated in fraud; must be public, continuous, exclusive, uninterrupted, and peaceable, and be accompanied by a claim of right.” Code Ann. § 85-402.

        The defendants’ evidence does not demand a finding that the defendants have possessed the alleged easement either exclusively or continuously or for the necessary period of years.

        Finally, “(T)he extraordinary equitable relief of injunction will be denied a party where, with full knowledge, he has been guilty of delay in asserting them, and has allowed large expenditures to be made by another party on whom great injury would be inflicted by the grant of the injunction.” Bacan v. Edwards, 234 Ga. 100, 102, 214 S.E.2d 539 (1975).

        The defendants’ evidence does not demand a finding either that the plaintiffs delayed in filing their complaint on July 27, 1979, or that the plaintiffs allowed large expenditures to be made by another party on whom great injury would be inflicted by the grant of the injunction.

        Accordingly, we hold that the defendants failed to pierce the plaintiffs’ complaint and that the trial court erred in granting the defendants’ motion for summary judgment.

        3. The defendants note the absence of a transcript of the hearing on the motion for summary judgment and argue that this court must assume that evidence was presented at said hearing and that said evidence was sufficient to support the trial court’s grant of summary judgment.

        The trial court’s order granting the defendants’ motion for summary judgment states that the grant was based upon the pleadings of the parties and the affidavit of Arthur True. Accordingly, we do not assume that evidence was presented at the motion for summary judgment hearing. This argument is without merit.

        4. The defendants argue that the trial court’s grant of their motion for summary judgment was warranted by either Code Ann. § 29-301 (“covenants restricting lands to certain uses shall not run for more than twenty years in municipalities which have adopted zoning laws, nor in those areas in counties for which zoning laws have been adopted”) or Code Ann. § 3-717 (“all actions for breach of any covenant restricting lands to certain uses shall be brought within two years after the right of action shall have accrued.”).

        These Code Sections limit the enforceability of restrictive covenants and hence are inapplicable to the present cause of action which is based upon the alleged existence of easements.

        Judgment reversed.

        All the Justices concur.