Spears v. State
| Decision Date | 06 February 2023 |
| Docket Number | A22A1399 |
| Parties | SPEARS v. THE STATE. |
| Court | Georgia Court of Appeals |
Janorris Spears appeals his convictions for criminal attempt to commit armed robbery, armed robbery, false imprisonment, aggravated assault, and conspiracy to commit armed robbery. For the following reasons, we affirm, but we vacate Spears' sentence for his conviction for conspiracy to commit armed robbery and remand for resentencing.
Viewed in the light most favorable to the verdict,[1] the evidence at trial shows that on July 26, 2014, Ricky Hudson arranged for Jerome Banks, Sr., and Terry Denham to sell drugs to Claude Dickerson. However, Banks and Denham planned to rob Hudson and Dickerson, and recruited John Husband to help them. Hudson Dickerson, Banks, and Denham went to an apartment complex to complete the supposed drug deal. While Hudson and Dickerson were in a stairwell, Banks pointed a gun at Dickerson, and Husband and another man - alleged by the State to be Spears - ambushed Hudson and pointed guns at him. Husband and the other man robbed Hudson and forced him inside an apartment but he jumped out of a window and ran away. Banks shot and killed Dickerson in the stairwell.
Banks identified Spears as a participant in the armed robbery. Husband and Spears are friends, and police officers found DNA belonging to both of them on a freshly smoked cigarette butt in the stairwell where the incident occurred. Hudson testified at trial that one of the two men who ambushed him was short while the other was tall. Hudson identified Husband as the tall man, but could not positively identify the short man. Husband is five inches taller than Spears.
Cell phone records indicated the following. Spears' phone and Husband's phone communicated throughout the day of the incident. Shortly before the incident, Husband's phone went to the area of Spears' apartment and called Spears' phone. The two phones then went to the incident area, were there at the time of the incident, and returned to the area of Spears' apartment shortly thereafter.
Spears was interviewed by police officers and denied any involvement in the incident, stating that he was at his apartment with his girlfriend at the time. Spears' girlfriend spoke with officers and could not provide any information as to his whereabouts on the day of the incident. After Spears' arrest, he told his girlfriend that she needed to testify that he was with her during the incident. Spears' girlfriend testified at trial that he was in and out of their apartment around the time of the incident.
The jury found Spears guilty of the attempted armed robbery of Dickerson, the armed robbery of Hudson, the false imprisonment of Hudson, the aggravated assault of Hudson, and conspiracy to commit armed robbery. The jury acquitted Spears of malice murder, felony murder, possession of a firearm during the commission of a felony, and possession of a firearm by a first offender probationer. The jury deadlocked on two counts of felony murder and one count of aggravated assault.
We disagree with the State's argument that we lack jurisdiction over this appeal because it is untimely. On November 21, 2017, the trial court issued a judgment of conviction on the five counts of which Spears was found guilty, while placing on the dead docket the three counts on which the jury deadlocked. Spears filed a timely motion for new trial, which the trial court denied on December 8, 2020.
On December 21, 2020, Spears filed a notice of appeal referencing his judgment of conviction and the denial of his motion for new trial. This Court dismissed the appeal, explaining that under Seals v. State, 311 Ga. 739 (860 S.E.2d 419) (2021), Spears' case was not final because of the dead-docketed counts. Spears v. State, 360 Ga.App. 776 (861 S.E.2d 619) (2021).
On August 20, 2021, the trial court issued an order of nolle prosequi as to the dead-docketed counts, as well as an amended judgment of conviction which reflected this fact and that the amended judgment was imposed nunc pro tunc November 21, 2017. Spears did not file a notice of appeal within 30 days. Instead, he filed a motion for out-of-time appeal in January 2022, which the trial court granted. On March 3, 2022, Spears filed a notice of appeal referencing the grant of his motion for out-of-time appeal, the denial of his motion for new trial, and his amended judgment of conviction. Based on the holding in Cook v. State, 313 Ga. 471, 505-506 (5) (870 S.E.2d 758) (2022), that a trial court lacks authority to grant an out-of-time appeal, this Court vacated the trial court's order on the motion for out-of-time appeal and remanded with instructions to dismiss the motion. Case No. A22A1192 (Apr. 11, 2022). After the trial court dismissed the motion, Spears filed an "amended notice of appeal and request to transmit record to Georgia Court of Appeals," which has been docketed as this appeal. We conclude that we have jurisdiction because Spears' initial December 21, 2020 notice of appeal ripened upon entry of the amended judgment of conviction.
Pursuant to OCGA § 5-6-38 (a), a notice of appeal must be filed "within 30 days after entry of the appealable decision or judgment complained of." "[A]nd a timely-filed notice of appeal is a jurisdictional prerequisite to a valid appeal." (Citation and punctuation omitted.) Bowman v. State, 358 Ga.App. 612, 613 (1) (856 S.E.2d 11) (2021). "At the same time, it is the public policy of this State to consider cases on the merits whenever possible," particularly criminal cases. Id.; see also OCGA § 5-6-30 (); Livingston v. State, 221 Ga.App. 563, 564 (1) (472 S.E.2d 317) (1996) ().
"The concept of a notice of appeal ripening is well established in the context of appeals from criminal convictions and motions for new trial." Bowman, 358 Ga.App. at 614 (1); see, e.g., Berrien v. State, 300 Ga. 489, 491 (1) n.2 (796 S.E.2d 718) (2017) (); State v. Hood, 295 Ga. 664, 664-665 (763 S.E.2d 487) (2014) (); McCulley v. State, 273 Ga. 40, 43 (4) n.3 (537 S.E.2d 340) (2000) (). This Court has held that where an initial judgment of conviction is not final, in that it does not include a written sentence on each count of which the defendant was found guilty, and the defendant files a notice of appeal, the notice ripens upon entry of an amended judgment of conviction disposing of all counts. See Perry v. State, 329 Ga.App. 121 (764 S.E.2d 178) (2014); Harless v. State, 325 Ga.App. 868, 868-869 (755 S.E.2d 814) (2014); Rolland v. State, 321 Ga.App. 661, 662 n.1 (742 S.E.2d 482) (2013).
The Supreme Court of Georgia has detailed the bases for the concept of ripening:
(Citations and punctuation omitted.) Southall v. State, 300 Ga. 462, 464-467 (1) (796 S.E.2d 261) (2017).
Contrary to the State's position here, the concept of ripening is not confined to cases where the trial court orally pronounces a ruling, the defendant files a notice of appeal, and the trial court issues a written ruling. In Bowman before the trial court ruled on the defendant's initial motion for pro bono attorney, the defendant filed a motion to vacate void sentence, for a hearing to withdraw plea, and for pro bono attorney. 358 Ga.App. at 612-613. On July 16, 2019, the trial court issued an order denying the initial motion for pro bono attorney. Id. at 613. Four months later, the defendant filed a notice of appeal indicating that he was appealing from "the judgment denying his motion to vacate void sentence and pro bono attorney entered on July 16, 2019." Id. However, a written order on the defendant's motion to vacate void sentence, for a hearing to withdraw plea, and for pro bono attorney was not entered until after he filed his notice of appeal. Id...
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