Jayko v. the State , 335 Ga. App. 684 ( 2016 )

FIFTH DIVISION
PHIPPS, P. J.,
DILLARD and PETERSON, 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
February 11, 2016
In the Court of Appeals of Georgia
A16A0191. JAYKO v. THE STATE. PE-006C
PETERSON, Judge.
Kara Jayko appeals a condition imposed on her sentence of ten years’
probation. She argues that the sentencing court’s prohibition on her ability to live
with someone of the opposite sex for the duration of her probation violates her
constitutional rights. But because it took ten years for her appeal to arrive at this
Court, Jayko has already completed her sentence and is no longer subject to the
challenged condition. Accordingly, she cannot benefit from any remedy we could
offer on appeal and we must grant the State’s motion to dismiss her appeal as moot.
In 2005, Jayko pleaded guilty to three counts of forgery and one count of false
statements, and pleaded nolo contendere to two lesser charges. She was sentenced to
ten years’ probation for the forgery counts and lesser terms running concurrently for
the others. In her brief, Jayko asserts that during the sentencing hearing, the judge
orally imposed as a condition of her probation a prohibition on living with someone
of the opposite sex to whom she was neither married nor related.1
Jayko filed a notice of appeal on October 28, 2005. The clerk of superior court
for Cherokee County transmitted the record on appeal to this Court on September 10,
2015. Jayko’s sentence expired October 5, 2015. On appeal, Jayko challenges only
the condition of her sentence prohibiting her from living with someone of the
opposite sex.
Because Jayko has already completed her sentence and is no longer subject to
the condition of probation she challenges, the State moved to dismiss the appeal as
moot. Jayko does not dispute that she no longer requires a remedy, but argues that the
precedent of this Court allows us to decide even moot cases when the issue to be
decided is important.
Jayko misreads our precedent and the precedent of the Supreme Court of
Georgia, which mandates dismissal of moot cases absent an applicable exception.
1
This condition does not appear in the written sentencing order, and the record
does not include a transcript of any sentencing hearing. Accordingly, the condition
may well have not even applied. See OCGA § 42-8-34.1(a)(2) (special conditions of
probation must be “identified in writing in the sentence”); Harvey v. Meadows, 280
Ga. 166, 169-70 (3) (626 SE2d 92) (2006) (same).
2
Mootness is “a jurisdictional matter.” Collins v. Lombard Corp., 270 Ga. 120, 122-23
(3) (508 SE2d 653) (1998). When the remedy sought in litigation no longer benefits
the party seeking it, the case is moot and “must be dismissed.” Roberts v. Deal, 290
Ga. 705, 707 (1) (723 SE2d 901) (2012); see also Baca v. Baca, 256 Ga. App. 514,
515-16 (1) (568 SE2d 746) (2002) (“mootness is a mandatory ground for dismissal”).
Our precedent does not recognize a mootness exception in cases like this.
Jayko points to Medina v. State, in which we exercised jurisdiction to hear a
challenge to a conviction where the sentence had already expired. 312 Ga. App. 399,
400 n.3 (718 SE2d 323) (2011). And on first blush, that precedent appears to frame
dismissal of moot cases as discretionary. Medina, 312 Ga. App. at 400 n.3
(characterizing Georgia Supreme Court decision in a parenthetical as granting courts
“discretion to address the merits of cases rendered moot by the defendant’s service
of his sentence”); accord Baker v. State, 240 Ga. 431, 431-32 (241 SE2d 187) (1978)
(dismissing as moot challenge to conviction and noting that “[a]lthough a court may
exercise its discretion to decide a criminal case even after the sentence has been
served, it is not bound to do so.”) (internal citations omitted). But challenges to
convictions brought after the expiration of a sentence may still afford meaningful
relief for an appellant, while challenges brought only to sentence conditions cannot.
3
It has long been our precedent that we have jurisdiction to decide challenges
to convictions brought by defendants who have completed their sentences, so that
they “may seek to redress legal grievances flowing from allegedly void convictions
and thereby hope to escape lifelong adverse collateral consequences.” Chaplin v.
State, 141 Ga. App. 788, 790 (1) (234 SE2d 330) (1977) (quoting Parris v. State, 232
Ga. 687, 691 (208 SE2d 493) (1974)). In other words, the appellant may still receive
a remedy (relief from “lifelong adverse collateral consequences”), and thus those
cases are not moot. Rodriguez-Martinez v. State, 243 Ga. App. 409, 410 (1) (533
SE2d 443) (2000) (“On account of these collateral consequences, the case is not
moot.”) (citation omitted).
Our decision in Medina was simply a direct application of that precedent in a
case involving a challenge to a conviction. Medina, 312 Ga. App. at 400 n.3
(following Chaplin and characterizing it in a parenthetical as granting courts
“discretion to address the merits of cases rendered moot by the defendant’s service
of his sentence”). And because Medina involved a challenge to a conviction, its
holding is necessarily limited to that context. Although it is the province of the
judiciary to say what the law is, Rutter v. Rutter, 316 Ga. App. 894, 896 (1) n.4 (730
SE2d 626) (2012) (Blackwell, J.), rev’d on other grounds, 294 Ga. 1 (749 SE2d 657)
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(2013), the extent of that province is limited by the facts of the case before the court.
Mootness is jurisdictional, we lack discretion to hear a moot case, and appeals are
moot when the appellant will not benefit from any remedy sought on appeal.
Jayko’s only challenge is to a sentence condition to which she is no longer
subject. Because she is no longer subject to that condition, she would no longer
benefit from relief from that condition; any adverse collateral consequences she might
still experience flow not from the sentence condition but from her conviction, which
she does not challenge here. Accordingly, her appeal is moot and must be dismissed.
Cf. Miller v. State, 288 Ga. 153, 154 (702 SE2d 137) (2010) (vacating this Court’s
opinion affirming partial revocation of probation and concluding that the challenge
to probation revocation was moot when the revocation was suspended and appellant
had not shown adverse collateral consequences on the record).
Before dismissing the appeal, however, we must address the ten-year delay in
the transmission of the record to this Court. This appeal is part of a number of cases
recently transmitted to this Court by the Cherokee County Superior Court Clerk’s
Office in which court costs had remained unpaid. Before a case is transmitted to this
Court, an appellant must pay the costs to prepare the record or file an affidavit of
indigence certifying that he or she is unable to pay such costs. See OCGA § 15-6-80
5
(“In all cases certified to the appellate courts, the costs for preparing the transcript of
the record shall be paid by the appellant to the clerk before the same is transmitted
unless the judge presiding over the case being appealed approves an affidavit
submitted to the judge by the appellant certifying that the appellant is unable to pay
such costs[.]”) (emphasis added); see also OCGA § 9-15-2(a)(1).
In this case, trial counsel filed the notice of appeal on Jayko’s behalf, but did
not attach an affidavit of her indigence, causing the delay in the transmission of the
record to this Court.2 That delay effectively denied Jayko of her opportunity to appeal
the condition she asserts was imposed on her sentence. Indeed, we might well have
2
Jayko’s counsel on appeal (also her counsel at the trial level over ten years
ago), Lee Fitzpatrick, notes that the circuit defender’s office in Cherokee County had
a policy requiring defendants to request new counsel on appeal, and accordingly he
did not follow Jayko’s case once he filed the notice of appeal. Mr. Fitzpatrick does
not state that he informed Jayko of the circuit defender’s policy requiring her to seek
new counsel on appeal, nor does he offer any reason why he did not obtain an
affidavit of indigence from Jayko. Moreover, the record indicates that the order
appointing Mr. Fitzpatrick specified that he would “remain appointed until relieved
by order of the Superior Court and thereafter unless and until relieved by order of the
Appellate Court.” [R-44] The record contains no such order relieving him. We take
this opportunity to remind the bar that, until appointed counsel is relieved of the
appointment by order of a court, appointed counsel has a duty to continue
representing a client, keep the client apprised about the status of the case, and fully
inform the client of his or her appellate rights and requirements to pursue an appeal,
including a client’s obligations to perfect the record.
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closely scrutinized the condition she challenges if we had the power to do so. But we
do not. Her appeal is now moot, and we must dismiss it.
Appeal dismissed. Phipps, P. J., and Dillard, J., concur.
7