Jones v. State

• Decision Date: 17 June 2013
• Docket Number: No. A13A0001.,A13A0001.
• Parties: JONES v. The STATE.
• Court: Georgia Court of Appeals

322 Ga.App. 269

745 S.E.2d 1

JONES

v.The STATE.

No. A13A0001.

Court of Appeals of Georgia.

June 17, 2013.

Jimmy Lee Jones, pro se.

Tracy Graham Lawson, Elizabeth A. Baker, for State.

PHIPPS, Presiding Judge.

In this appeal, Jimmy Lee Jones maintains that he is entitled to relief from his child molestation conviction. Additionally, he claims that the trial court erred by denying his motion for the appointment of appellate counsel. For reasons that follow, we affirm the denial of the motion for appellate counsel, and dismiss the remainder of this appeal.

In 1995, in the Superior Court of Clayton County, Jones entered a negotiated guilty plea to a child molestation charge on a multi-count indictment, and the remaining charges against him were dismissed; Jones was granted first offender treatment,¹ pursuant to which no judgment of guilt was entered, and ordered to serve a five-year sentence on probation.

Before the expiration of the probationary period, the state filed a petition for adjudication of guilt and imposition of sentence, alleging that Jones had violated certain probationary terms. After a hearing thereon, the trial court executed an order on August 20, 1997 (which was entered on August 25, 1997), determining that Jones had violated probationary terms, adjudicating Jones guilty of child molestation and sentencing him to imprisonment. On September 19, 1997, Jones filed a notice of appeal; the state moved the trial court to dismiss it on the ground that an appeal from a probation revocation was discretionary pursuant to OCGA § 5–6–35.² Jones had not followed said procedures, and the trial court dismissed Jones's notice of appeal in February 1998.

More than a decade later, on May 31, 2012, Jones, proceeding pro se, filed in the Superior Court of Clayton County a “Motion to Set Aside Void Order Dated August 20th, 1997,” which Jones subtitled, “Petitions—Error Coram Nobis and/or Audita Querela-sic.” Therein, Jones complained that, without counsel, he had been confronted with the probation revocation proceedings that resulted in an order of adjudication of guilt and the imposition of a sentence of imprisonment. Further, Jones pointed out that, at the probation revocation hearing, he had objected to proceeding without appointed counsel. The transcript of the probation revocation hearing shows that the trial court overruled Jones's objection, explaining that Jones had been afforded an opportunity to have an attorney, that a court administrator had interviewed him, that Jones had refused to talk to the court administrator and had refused to provide him any financial information, and that Jones thus had not complied with the conditions necessary to get a court-appointed attorney. Nevertheless, in his 2012 motion, Jones relied upon a line of cases, represented here by Barnes v. State,³ in an attempt to support his argument that the cited circumstances warranted his child molestation sentence of imprisonment to be vacated as “void.”

The trial court summarily denied Jones's 2012 motion, and Jones thereafter filed a motion seeking the appointment of appellate counsel, which the trial court also denied. Jones proceeds pro se in this appeal, challenging these rulings.

1. In several related claims of error, Jones contests the denial of his motion, characterizing his sentence of imprisonment as “void” and citing OCGA § 17–9–4.⁴ But as we explain below, Jones's motion provided no basis to vacate the challenged sentence.⁵

“A sentence is void if the court imposes punishment that the law does not allow.” ⁶ Jones's motion did not set forth any argument that the sentence imposed upon him in 1997 for child molestation was not authorized by law.⁷ Instead, he complained that he was without counsel during the probation revocation proceedings, which proceedings resulted in the sentence of imprisonment. Looking to the substance of Jones's claims, Jones's motion challenged not his sentence, but his conviction.⁸

In Chester v. State,⁹ the Supreme Court of Georgia held that “ OCGA § 17–9–4 allows criminal defendants to challenge their convictions at any time by filing any motion or pleading alleging their conviction is void.” ¹⁰ But soon thereafter, in Harper v. State,¹¹ the Supreme Court of Georgia overruled that holding, concluding that “[a] petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case.” ¹² The Court explained that “the only remedy for asserting the right to challenge a judgment of conviction as void under OCGA § 17–9–4 is one of the three statutory procedures”: ¹³ an extraordinary motion for new trial, under OCGA § 5–5–41; a motion in arrest of judgment, under OCGA § 17–9–61; or a petition for habeas corpus, under OCGA § 9–14–40.¹⁴

Jones's motion cannot be construed as any one of such pleadings. That is, “we cannot construe the motion as an extraordinary motion for new trial since that remedy is not available to one who pled guilty.” ¹⁵ “[A] motion in arrest of judgment must be filed within the same term of court in which the judgment was entered,” ¹⁶ and Jones's motion was not so filed.¹⁷ And “we cannot construe [Jones's] claim as a habeas petition because it was filed in the convicting court rather than in the county in which [he] is incarcerated.” ¹⁸

Given the foregoing, “[Jones] was not entitled to file a motion to vacate his criminal conviction and his appeal [therefrom] is subject to dismissal.” ¹⁹ Jones's reliance upon procedurally inapposite cases such as Barnes²⁰ is misplaced.

2. Jones's remaining attacks upon his child molestation conviction do not rescue this portion of his appeal from dismissal.

(a) Jones contends that the trial court erred in denying his motion to vacate void order “without giving a written opinion, or citing any authority of law.” Contrary to Jones's bare assertion on appeal, the summary order (ruling on a motion that Jones was not entitled to file ²¹) did not “violate [ ] the rights to access the courts, meaningfully, and equal protection and due process of law.”

(b) Jones's characterization of his 2012 motion as “Petitions—Error Coram Nobis and/or Audita Querela-sic” is unavailing.

(i) Several decades ago, the Supreme Court of Georgia “established that a writ of error coram nobis is merely the ancient grandfather of an extraordinary motion for new trial based on newly discovered evidence” and thereupon

recommend[ed] to the Bar [and hence, pro se parties] to finally grant this lingering ghost a peaceful rest. Indeed, with the myriad of avenues for post-conviction relief, differing nomenclature for identical modes of procedure merely serves to muddle trial practice and confuse those judges and justices charged with the task of appellatereview.²²

Accordingly, this court recently observed,

[A]s [a petition for writ of error coram nobis] is the ancestor of an extraordinary motion for new trial based on newly discovered evidence, the prerequisites for issuing a writ of error coram nobis or for granting an extraordinary motion for new trial based on newly discovered evidence appear to be identical. Before a court authorizes either, it is generally required that the moving or petitioning party base the pleading on facts which are not part of the record and which could not by due diligence have been discovered at the time of the trial.²³

The pleading at issue here, Jones's 2012 motion challenging the child molestation conviction,²⁴ was not based on facts which were not part of the record and which could not by due diligence have been discovered at the pertinent time; rather, his 2012 motion was grounded on the lack of counsel during the probation revocation proceedings, which unquestionably was known to Jones during the proceedings.²⁵ “Thus, [Jones] could not properly challenge his [child molestation conviction] under a writ of error coram nobis.” ²⁶

Moreover, Jones pled guilty to child molestation; and as stated above, ²⁷ an extraordinary motion for new trial is not a remedy available to one who pled guilty.²⁸

(ii) Jones's reference to an “Audita Querela” is unaccompanied by any legal authority that such a writ is a cognizable vehicle for providing him relief from the child molestation conviction. Unsupported, Jones's reference is unavailing.

(c) Jones asserts that his “1997 notice of appeal is still valid” to directly appeal his child molestation conviction for reason that the “[t]rial court does not have jurisdiction to dismiss a notice of appeal which is properly filed.” While Jones might have timely pursued a challenge to the dismissal of the 1997 notice of appeal,²⁹ he apparently did not do so. Contrary to his assertion, the 1997 notice of appeal—since dismissed—is ineffective at this juncture to directly appeal his child molestation conviction.

3. Jones challenges the trial court's order denying his motion for the appointment of appellate counsel.³⁰ But his contention is unavailing, given these instructions provided in Rooney v. State:³¹

[A] trial court retains jurisdiction over certain matters including appointment of counsel on appeal. However, an indigent defendant is entitled to representation by counsel only for trial and for the direct appeal from the judgment of conviction and sentence.³²

Accordingly, the trial court correctly determined that Jones was not entitled to appointed appellate “counsel to pursue either the [Motion to Set Aside Void Order Dated August 20th, 1997] or an appeal from the denial thereof.” ³³ The trial court's order denying Jones's motion for the appointment of appellate counsel is thus affirmed.³⁴

Judgment affirmed in part and appeal dismissed in part.

ELLINGTON, C.J., and BRANCH, J., concur.

1. See OCGA § 42–8–60 et seq.

2. See Dean v. State, 177 Ga.App. 123, 124(1), 338 S.E.2d 711 (1985) (concluding that the discretionary appeal procedure of OCGA § 5–6–35(a)(5) is applicable to the revocation of “first offender” probation); see also Freeman v. State, 245 Ga.App. 333, 537 S.E.2d 763 (2000).

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