Ward v. Carlton
| Decision Date | 19 January 2022 |
| Docket Number | S21A1088 |
| Citation | 868 S.E.2d 194 |
| Parties | WARD v. CARLTON. |
| Court | Georgia Supreme Court |
Ashleigh Dene Headrick, Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Department of Law, 40 Capitol Square SW, Atlanta, Georgia 30334, for Appellant.
Lewis Alan Carlton, GDC# 1000935140, Cobb County Adult Detention Center, P.O. Box 100110, Marietta, Georgia 30061, for Appellee.
The Commissioner of the Georgia Department of Corrections, Timothy Ward,1 appeals the habeas court's order granting relief to petitioner Lewis Carlton on the ground that the trial court lacked authority to revoke Carlton's probation arising from his 2012 convictions by guilty pleas before the probationary period of the criminal sentences began. The Commissioner argues that the trial court was authorized by statute and precedent to revoke Carlton's probation before it began. Carlton responds that the habeas court was correct in granting relief because the trial court lacked such authority. He also claims that the trial court's actions rendered his guilty pleas unknowing and invalid because he would not have entered the pleas had he known that his probation could be revoked before the probationary period began – claims that the habeas court ruled that the trial court should address in the first instance in the context of a motion for out-of-time appeal. For the reasons explained below, we conclude that the habeas court erred both in ruling that the trial court could not revoke Carlton's probation and in not ruling on Carlton's invalid-plea claims as well as other claims he asserted. We therefore reverse the habeas court's judgment in part and remand the case for further consideration consistent with this opinion.2
1. The record shows the following.
On September 20, 2012, a Cobb County grand jury indicted Carlton for three counts of interstate interference with custody, four counts of impersonation of a public employee (a Division of Family and Children Services worker), two counts of burglary, two counts of criminal attempt to commit aggravated stalking, and two counts of criminal attempt to commit kidnapping. On October 15, 2012, Carlton entered a negotiated Alford3 plea to three counts of impersonation of a public employee (Counts 4, 6, and 7), and the remaining counts were nolle prossed.
The trial court sentenced Carlton to serve five years in prison on Count 4, a consecutive split sentence of five years – one year to serve in prison and four years to serve on probation – on Count 6, and a consecutive five years to serve on probation on Count 7, for a total sentence of six years to serve in prison and nine years to serve on probation.4 On the sentencing disposition form for Count 4, the general and other terms of probation section was struck through, as were the words "see Addendum ‘A’ for special conditions of probation." The sentencing disposition forms for Counts 6 and 7 included general terms and conditions of Carlton's probation, as well as special conditions of his probation reflected in an Addendum A. The special condition at issue in this case said, "Defendant shall have no contact with his children unless an order from the Cobb County juvenile court allows it." Carlton did not appeal.
About two years later, on October 3, 2014, while Carlton was incarcerated based on his sentence on Count 4, the State filed a petition to revoke his probation, alleging that he had violated the special condition by attempting to contact his children by telephone and mail on three occasions at their adoptive parents’ residence. On November 17, the petition was amended to add that Carlton had violated the first general condition of his probation, which was "not to violate the criminal laws of any government unit," alleging that he had committed the offense of aggravated stalking by attempting to contact his children by mail.
At the revocation hearing held on September 30, 2015, Carlton's counsel argued that the trial court did not have the authority to revoke Carlton's probation because he was still serving the confinement portion of his sentence and the probated period had not yet begun. Relying on Postell v. Humphrey , 278 Ga. 651, 604 S.E.2d 517 (2004), the trial court determined that it had the authority to revoke Carlton's probation prior to the beginning of the probationary period.
On October 1, 2015, the trial court issued a revocation order, finding that Carlton had violated the terms of his probation by attempting to contact his children by telephone and mail and by committing criminal attempt to commit aggravated stalking.5 The court revoked six years of Carlton's probation based on the violations of his probation conditions, ordered that he serve that time consecutive to the six years he was already sentenced to serve in prison, and modified his probation terms in an addendum.6 Carlton filed an application for discretionary appeal of the revocation order, but the Court of Appeals dismissed the application as untimely.
On December 28, 2018, Carlton, acting pro se, filed the habeas corpus petition now at issue – his third habeas petition – in the Baldwin County Superior Court, challenging the validity of his original convictions and the trial court's revocation order on seven grounds. On June 9, 2019, he amended his petition to add an eighth ground. After Carlton was transferred to the Jenkins Correctional Facility, the habeas case was transferred to the Jenkins County Superior Court ("habeas court"). On January 6, 2020, Carlton amended his petition again to raise a ninth ground, and at the evidentiary hearing on February 18, 2020, he amended the petition to add a tenth ground.7 The ten grounds were as follows:
Meanwhile, in August 2018, Carlton was tried and convicted in Cobb County of criminal attempt to commit aggravated stalking, the conduct that was in part the basis for his probation revocation. He appealed, and on June 29, 2020 – after the habeas hearing – the Court of Appeals reversed those convictions based on the erroneous admission of bad-character evidence. See Carlton v. State , 356 Ga. App. 1, 7-10, 846 S.E.2d 175 (2020).
In the appeal, Carlton also argued, among other things, that because the State did not introduce evidence of a no-contact order that was "in effect" at the time he sent a postcard and letter to his children, there was a fatal variance between the indictment and the proof at trial. See id. at 4, 846 S.E.2d 175. See also OCGA § 16-5-91 (a) (). In the course of its discussion of that issue, the Court of Appeals stated that the no-contact probation condition in Carlton's 2012 criminal sentence "pertained only to Counts 6 and 7, which he was not yet serving at the time he sent the postcard and letter [to his children's residence]." Carlton , 356 Ga. App. at 5, 846 S.E.2d 175. In a footnote, the court elaborated:
On Count 4, Carlton was sentenced to five years to serve, with no probation. And Carlton's sentence on Counts 6 and 7 was to be served consecutively to Count 4. Carlton was sentenced on Count 4 less than two years before he sent the postcard and the letter. The State presented no evidence that he had transitioned, for any reason, to serving his sentence on Count 6 or 7. Accordingly, there is no evidence in the record to support the conclusion that at the time he sent the postcard and letter Carlton was subject to the no-contact provision pertaining to Counts 6 and 7 of the Criminal Sentence.
Id. at 5 n.4, 846 S.E.2d 175. Based on this analysis, the Court of Appeals concluded that there was a variance between the indictment and the evidence, but then...
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