Roberson v. the State

SECOND DIVISION
ANDREWS, P. J.,
MILLER, P. J., and BRANCH, J.
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 8, 2016
In the Court of Appeals of Georgia
A15A1735. ROBERSON v. THE STATE.
BRANCH, Judge.
Necole “Nick” Roberson appeals her conviction and sentence of misdemeanor
family-violence simple battery arising out of an altercation with her son during which
Roberson injured her son by throwing a pot of boiling water at him. See OCGA § 16-
5-23.1 (f).
The record shows that Roberson pled not guilty, filed a request to be
represented by an attorney, and averred that she was indigent and could not afford an
attorney. A public defender was appointed to represent her, and the case proceeded
to trial. On March 26, 2014, a jury found Roberson guilty of the charge, and on April
24, 2014, the court entered the conviction and sentenced Roberson to twelve months,
with 30 days confinement suspended upon proof of an evaluation by a licensed
psychiatrist and the balance on probation. On April 29, 2014, Roberson filed her
notice of appeal together with an affidavit of poverty in which she asserted that on
account of her poverty she was “unable to pay the fees and costs normally required.”
The notice of appeal did not indicate, however, that any transcripts would be filed,
and no trial transcript has been included in the appellate record before us.
On September 8, 2014, Roberson moved in the trial court to obtain a transcript
of the trial without charge on the ground that she was indigent and did not have
sufficient funds to pay for a transcript in order to appeal. In response to the motion,
the court expressed concern about Roberson’s financial status, indicating that “during
the trial Ms. Roberson testified that she had recently moved into a nice house.” The
court therefore asked for proof or evidence of [Roberson’s] indigence before
approving transcription at the expense of the Court.” On April 22, 2015, following
a hearing on the matter, the trial court denied the motion as follows:
Based upon testimony presented during the trial of the case before this
Court, the Court had doubts as to Defendant’s indigence and requested
evidence of same prior to providing the transcript at the Court’s
expense. Defense having failed to provide any such evidence either at
the hearing or thereafter, despite specific requests by the Court and very
specific direction as to what evidence might suffice, and despite the
2
Court’s agreement to withhold ruling pending submission of any such
evidence, the motion is hereby DENIED.
The appellate record does not include a transcript of the hearing on the motion for a
trial transcript.
Roberson contends the trial court erred (1) by excluding evidence of prior
difficulties between Roberson and her son; (2) by excluding evidence of her son’s
prior acts of violence against a third party; and (3) by denying her motion for a
transcript free of charge.1
1. We first address the denial of Roberson’s motion for a trial transcript without
charge for purposes of appeal, which concerned the question of Roberson’s
indigence.
“The judgment of the court on all issues of fact concerning the ability of a party
to pay costs or give bond shall be final.” OCGA § 9-15-2 (a) (2); see Penland v. State,
256 Ga. 641, 641 (352 SE2d 385) (1987) (upholding constitutionality of this rule of
1
Although we do not condone the State’s failure to timely file its appellate
brief, this Court is not required to refuse to consider an untimely brief nor hold the
late-filing party in contempt. See Court of Appeals Rule 23 (b) (“Failure to timely file
may result in non-consideration of the brief and may subject counsel to contempt.”)
(emphasis supplied); see, e.g., Carter v. State, 267 Ga. App. 520, n. 1 (600 SE2d 637)
(2004) (appellant’s motion to dismiss State’s brief as untimely and to hold State in
contempt was denied).
3
finality on questions of indigence in a criminal case, including for the purpose of
obtaining a copy of a trial transcript at government expense). Accordingly, the trial
court’s decision regarding Roberson’s ability to pay for a trial transcript is affirmed.
Roberson contends this rule and recent precedent2 overlooks OCGA § 17-12-24
(a), which is part of the Georgia Indigent Defense Act of 2003 (the “IDA”). That
Code section provides that the decision whether an arrested person is indigent for the
purpose of obtaining representation by an attorney under the IDA rests with the
public defender’s office:
The circuit public defender, any other person or entity providing
indigent defense services, or the system established pursuant to Code
Section 17-12-80 shall determine if a person or juvenile arrested,
detained, or charged in any manner is an indigent person entitled to
representation under this chapter.
2
Recent case law holds that “[t]he determination of whether a defendant is
indigent . . . lies within the discretion of the trial court, and this determination is not
subject to review”; furthermore, “[w]e will not look behind the court’s determination
of indigence.” Breazeale v. State, 290 Ga. App. 632, 636 (8) (660 SE2d 376) (2008)
(punctuation and footnotes omitted); Thomas v. State, 297 Ga. App. 416, 420 (3) (677
SE2d 433) (2009); Patel v. State, 283 Ga. App. 181, 183 (1) (641 SE2d 184) (2006);
see also Leavell v. State, 331 Ga. App. 304, 305 (771 SE2d 48) (2015) (“Whether a
defendant is indigent is a matter for the trial court’s discretion.”) (citation omitted).
4
OCGA § 17-12-24 (a). Thus, as this Court has held, a trial court now lacks the
authority to rule on motions for appointment of counsel; such motions should be
directed to the circuit public defender office instead. Bynum v. State, 289 Ga. App.
636, 637 (658 SE2d 196) (2008). As this Court has explained,
Prior to the passage of [the IDA], trial courts exercised considerable
control over the indigent defense process, including the appointment of
counsel to represent indigent defendants. See former OCGA § 17-12-4
et seq. (2002). Following the passage of the IDA, however, public
defender offices were established in each judicial circuit of the State.
Defendants charged with felonies now apply directly to these offices,
rather than to the trial court, for indigent representation. See OCGA §§
17-12-20; 17-12-27 et seq.
Odum v. State, 283 Ga. App. 291, 292 (641 SE2d 279) (2007); see, e.g., Calmes v.
State, 312 Ga. App. 769, 774 (3) (719 SE2d 516) (2011) (circuit public defender
denied defendant’s request for new appellate counsel).
Roberson argues that with regard to whether she was entitled to a trial
transcript free of charge, the trial court was required to accept the public defender’s
determination that Roberson was indigent. As a part of her argument, Roberson
asserts that the public defender’s office re-interviewed her after trial and determined
that she was still indigent. For the reasons shown below, we disagree that the trial
5
court was required as a matter of law to follow the public defender’s determination
of indigence, and we hold that Roberson has not shown that the trial court abused its
discretion when making its own determination on the matter.
The interpretation of the IDA, like all other statutes, is a question of law, “and
the rules of statutory construction require us to give words their plain and ordinary
meaning.” Odum, 283 Ga. App. at 292 (citation omitted). Our review shows that
nothing in the IDA provides that the public defender office’s determination regarding
a defendant’s status as indigent for the purpose of representation automatically
applies to a determination of indigence for the purpose of requiring the county to
provide an appellate transcript free of charge to an indigent defendant. In fact,
transcripts are not specifically mentioned at any place in the IDA. And although the
IDA requires the Georgia Public Defender Standards Council3 to pay the costs of
defense for an indigent defendant, this Court has already held that the cost of a trial
transcript is not a cost of providing a defense under IDA and is to be borne, therefore,
by the county. Ga. Pub. Defender Standards Council v. State, 284 Ga. App. 660, 664
3
The Georgia Public Defender Council, established by IDA as an independent
agency within the executive branch of state government, is responsible “for assuring
that adequate and effective legal representation is provided, independently of political
considerations or private interests, to indigent persons who are entitled to
representation under this chapter.” OCGA § 17-12-1.
6
(2) (644 SE2d 510) (2007) (“Payment for these transcripts is an obligation of the
State, and our law requires that the counties pay for transcripts.”) (citation and
footnotes omitted). Thus, although the IDA provides that the public defender offices
established by the IDA are required to determine whether a defendant is indigent for
the purpose of providing a defense, that determination does not control a county’s
obligation to provide an appellate transcript. Cf. Mitchell v. State, 280 Ga. 802 (1)
(633 SE2d 539) (2006) (“The right to a free transcript arises regardless of whether the
indigent defendant was represented by retained counsel at the time of the trial court
proceeding for which the transcript is sought.”) (citation omitted). And because the
IDA does not pertain to a determination of indigence for the purpose of providing a
transcript free of charge to indigent defendants, it follows that the trial court retains
discretion, as described above, to determine whether a defendant is indigent for the
purpose of holding a county responsible for the cost of a transcript.4
4
It follows that it is not necessary to overrule any of the cases cited in Note 2
of this opinion.
7
Here, because the court was concerned that Roberson’s indigent status was
suspect, the court held an evidentiary hearing, as it was authorized to do,5 on whether
Roberson was entitled to a trial transcript at county expense. As shown above, that
decision is not subject to review and is therefore affirmed.
2. Because Roberson’s remaining enumerations of error depend upon
information contained in the trial transcript, which Roberson has failed to provide or
to provide a meaningful subsitute, Roberson cannot show any error on those claims
as well. Ford v. State, 306 Ga. App. 606, 610 (3) (703 SE2d 71) (2010).
Judgment affirmed. Andrews, P. J., concurs. Miller, P. J., concurs in judgment
only.
5
“In the absence of a traverse affidavit contesting the truth of an affidavit of
indigence, the court may inquire into the truth of the affidavit of indigence. After a
hearing, the court may order the costs to be paid if it finds that the deposit, fee, or
other costs can be paid and, if the costs are not paid within the time permitted in such
order, may deny the relief sought.” OCGA § 9-15-2 (b).
8