Brian K. Thrailkill v. State ( 2019 )

FIFTH DIVISION
MCFADDEN, P. J.,
MCMILLIAN and GOSS, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 4, 2019
In the Court of Appeals of Georgia
A19A0662. THRAILKILL v. THE STATE. GS-021C
GOSS, Judge.
In October 2017, Brian Thrailkill entered negotiated guilty pleas to three
counts of aggravated child molestation and seven counts of child molestation.1
Thrailkill did not file a direct appeal from his guilty plea or motion for an out of time
appeal. On July 24, 2018, Thrailkill filled three documents under the original criminal
docket number associated with his criminal prosecution: a Request to Proceed In
Forma Pauperis, a “Motion for Documents and Records,” and a “Memorandum of
Law” seeking a free trial transcript. On July 27, 2018, the trial court issued an order
dismissing these pro se motions without prejudice if costs and fees were not paid
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Counts 8, 9 and 10 for child molestation were merged for the purposes of
sentencing with Count 3 for molestation.
within 30 days, and Thrailkill did not seek appellate review of that order. On August
15, 2018, Thrailkill filed a “Motion for Trial Transcript” and named “Cindy Brown,
Clerk of Superior Court, Coweta County” as respondent. On August 24, 2018, the
trial court entered an order denying Thrailkill’s motion. On September 21, 2018,
Thrailkill appeals from the trial court’s order denying his motion for a trial transcript.
For the following reasons, we affirm.
In his pro se motion for a trial transcript, Thrailkill argues that “the requested
trial transcript is essential and necessary in order to obtain habeas corpus relief from
the judgment of conviction and sentence in the above-captioned case.” However,
Thrailkill provides no evidence that such a habeas case has been filed.
Thrailkill continues to argue on appeal that he is entitled to a transcript at
government expense for the purpose of pursuing post-conviction relief. “While an
indigent is entitled to a copy of his trial transcript for a direct appeal of his
conviction, such is not the case in collateral post-conviction proceedings.” (Citation
and punctuation omitted.) Bell v. State, 337 Ga. App. 730, 730 (788 SE2d 808)
(2018). “After the time for appeal has expired there is no due process or equal
protection right to a free copy of one’s court records absent a showing of necessity
or justification.” (Citation omitted.) Henderson v. State, 303 Ga. 241, 244 (2) (811
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SE2d 388) (2018). This showing of necessity or justification can be proved via an
affidavit setting forth certain facts:
The affidavit should set out the particular reasons why the transcript is
necessary, and should include a statement that the petitioner or his
attorney have never previously been supplied a copy of his transcript
and record, and that it is not otherwise available to him. A copy of the
pending or proposed habeas petition should be attached. Similarly, the
clerk may certify that a copy of the transcript has previously been
provided the defendant or his attorney. From this, the trial court can
make appropriate findings of fact and conclusions of law in determining
whether the prisoner has shown some justification or necessity for a
copy of his trial transcript or record.
(Citation and footnote omitted; emphasis omitted and supplied.) Bell, 337 Ga. App.
at 730-731.
Thrailkill is well outside the time for an appeal, and he has failed to make any
showing of necessity or justification because he has failed to attach an affidavit or
copy of the pending habeas petition. See Shelby v. McDaniel, 266 Ga. 215, 215 (465
SE2d 433) (1996) (recognizing that, after the time to appeal has expired, a copy of
a pending or proposed habeas proceeding should be attached to the pleading seeking
records at government expense); Mydell v. Clerk, Superior Court of Chatham County,
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241 Ga. 24, 25 (243 SE2d 72) (1978) (copy of pending or proposed habeas petition
should be attached to petition seeking transcript). The trial court did not err in
denying his motion.
Judgment affirmed. McFadden, P. J., and McMillian, J., concur.
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