Page v. the State

                               FIRST DIVISION
                                DOYLE, C. J.,
                           BOGGS AND MERCIER, 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


                                                                     March 10, 2016




In the Court of Appeals of Georgia
 A15A1952. PAGE v. THE STATE.                                                 DO-075 C

      DOYLE, Chief Judge.

      Trev Baxter Page appeals from the trial court’s order revoking his probation.1

Page argues that because the conduct underlying the revocation occurred after the oral

pronouncement of his sentence but prior to the written sentence being filed in the case

and because he was not yet on probation when the revocation occurred, (1) his right

to due process was violated when his probation was revoked, and (2) he received

ineffective assistance of counsel when counsel failed to argue these positions at the

revocation hearing. For the reasons that follow, we affirm.




      1
        Page filed an application for discretionary review, which this Court granted
in an order issued on May 8, 2015.
       The evidence shows that on August 26, 2014, Page entered a guilty plea to

burglary under the First Offender Act, OCGA § 42-8-60. Prior to entry of his plea,

Page had been released on bond. On August 26, 2014, the trial court orally

pronounced his sentence of 10 years with the first 12 months to serve in confinement

and the remainder on probation.2 The trial court explained to Page that pursuant to the

First Offender Act, if he re-offended, he could be adjudicated guilty and re-sentenced

to up to 20 years confinement. The trial court allowed Page to return home

immediately after the oral pronouncement in order to seek medical treatment for an

injury, but the court ordered him to report to Whitfield County Jail three days later

on August 29, 2014, at 8:00 a.m. to begin his sentence of confinement, explaining

that failure to appear at that time would constitute a violation of probation, and his

first offender status could be revoked.

      Although the trial court signed the written judgment of conviction on August

26, the order was not entered onto the docket until September 2, 2014; the order

contained the sentence as pronounced on August 26, including the special condition

of probation requiring that Page report to the jail at 8:00 a.m. on August 29.



      2
          Pursuant to OCGA § 42-8-60 (a) (1), the court withheld adjudication of guilt.

                                           2
      On August 29, 2014, when Page failed to appear at the jail to begin his term of

confinement, the trial court issued an order for his arrest, which police served later

that day.3 When they arrived at his residence, officers encountered a person they

would later learn was Page walking out from behind an apartment building holding

what appeared to be a pipe normally used for smoking methamphetamine. Officers

asked if the item they saw in Page’s hand was a methamphetamine pipe, and he stated

that it was not, that he was not smoking methamphetamine, and that he was playing

basketball with his kids. Officers asked Page his identity, and after he admitted it,

they explained that they were there to arrest him, and Page responded that he would

not leave and ran toward the officers, striking one. Page’s two children, ages nine and

six, witnessed the scene, and the older child was struck in the leg with an officer’s

microphone, which Page had thrown. The two children asked the police to leave Page

alone and were very upset during the altercation. Eventually, one of the officers

deployed his taser, which was not effective, but other officers arrived and were able

to subdue Page. After Page was arrested, officers discovered on his person a

substance that field tested positive for methamphetamine and a spring loaded knife.


      3
       A warrant for arrest for Page’s violation of the special condition was issued
on September 2, 2014, although Page was actually booked in jail at that time.

                                          3
      On November 24, 2014, based on the encounter with police on August 29, the

State filed a Petition for Adjudication of Guilt and Imposition of Sentence in First

Offender Case against Page for violation of his probation in the burglary case by

committing two counts of felony obstruction of a law enforcement officer, possession

of methamphetamine, possession of drug-related objects, interference with

government property, two counts of cruelty to children in the third degree, and bail

jumping. He was also charged with violation of a special condition of probation by

failing to report to jail at the appointed time. After the probation revocation hearing

on January 13, 2015, the trial court withdrew Page’s first offender status in his

burglary case, found by a preponderance of the evidence that he had violated

probation by committing acts that resulted in additional charges against him, and re-

sentenced him to 20 years to serve 10 in confinement.

      1. Page argues that because the trial court had not entered a written judgment

of conviction the trial court violated his due process rights by erroneously revoking

probation and resentencing him in his burglary case after he failed to appear at the jail

on August 29, 2014, and was subsequently accused of additional felony charges.




                                           4
Because Page failed to raise this issue in the trial court, it is waived and addressed

pursuant to his ineffective assistance of counsel claim in Division 2.4

      2. Page also argues that he received ineffective assistance of counsel because

his attorney failed to argue at the revocation hearing that his probation could not be

revoked when a written judgment of conviction had not yet been entered. We

disagree.

              To prevail on a claim of ineffective assistance of counsel, a
      defendant must show that counsel’s performance was deficient and that
      the deficient performance so prejudiced the defendant that there is a
      reasonable likelihood that, but for counsel’s errors, the outcome of the
      trial would have been different. If an appellant fails to meet his or her
      burden of proving either prong of the Strickland test, the reviewing
      court does not have to examine the other prong. In reviewing the trial
      court’s decision, we accept the trial court’s factual findings and
      credibility determinations     unless    clearly   erroneous, but     we
      independently apply the legal principles to the facts. Furthermore, there
      is a strong presumption that the performance of counsel was within the
      wide range of reasonable professional lawyering, and we cannot reach
      a contrary conclusion unless defendant successfully rebuts the




      4
          See Dickey v. State, 

 (3) (

) (2002).

                                          5
      presumption by clear and convincing evidence. Judicial scrutiny of
      counsel’s performance must be highly deferential.5


      The trial court pronounced Page’s sentence and signed the judgment of

conviction on August 26, and therefore, when Page failed to appear at the jail on

August 29, the trial court was authorized to revoke his probation.6 To the extent that

Page argues he is supported by cases stating that an order is not effective until it is

entered on the docket, those cases are inapposite to the situation at hand — whether

Page was required to comply with the trial court’s order that he appear at the jail on

a date certain — and deal with procedural issues of appeal or with juvenile court

proceedings.7 Finally, because Page was a first offender, the trial court was



      5
       (Citation and punctuation omitted.) Chalk v. State, 

 (1)
(

) (2012), citing Strickland v. Washington, 

 (III) (

, 80 LE2d 674) (1984).
      6
       See Curry v. State, 

 (4) (

) (1981). See also
Vann v. State, 

 (

) (1998).
      7
         See, e.g., In re Tidwell, 

 (1) (b) (

) (2006)
(“the filing with the clerk of a judgment, signed by the judge, constitutes the entry of
the judgment, and, unless the court otherwise directs, no judgment shall be effective
for any purpose until the entry of the same. . . .”) (punctuation omitted); State v.
Moore, 

 (

) (1993) (“until an order is signed by
the judge (and is filed) it is ineffective for any purpose.”); Uniform Juvenile Court
Rule 17.1.

                                           6
withholding final adjudication of guilt pending completion of the sentence, and

therefore, no double jeopardy concerns existed when the court imposed a new

sentence of confinement after Page committed acts leading to several additional

charges while serving the August 26 sentence.8

      Accordingly, because any objection to the revocation or motion to dismiss the

revocation proceeding made by counsel on this ground would have been denied, Page

has failed to establish that his attorney performed deficiently during the proceeding

by failing to raise such an argument.9

      Judgment affirmed. Boggs and Mercier, JJ., concur fully and specially.

      8
       “Double jeopardy does prevent a court from imposing additional punishment
where doing so would upset the defendant’s legitimate ‘expectation of finality in his
sentence’ “[but] a defendant may be resentenced after the original sentence has begun
being served, so long as (a) such resentencing is allowed by law, and (b) the
defendant has no reasonable expectation in the finality of the original sentence.”
Stephens v. State, 

 (2) (b) (2) (

) (2011) (citations
omitted), quoting Wilford v. State, 

 (

) (2004), and
United States v. DiFrancesco, 

 (

, 66 LE2d 328)
(1980). See also OCGA § 42-8-60.
      9
         See Jones v. State, 

 (4) (

) (2014)
(explaining that “the failure to make a meritless objection cannot be evidence of
ineffective assistance.”) (punctuation omitted). Cf. Chalk, 

 (1)
(c) (holding that counsel was not ineffective for failing to file a motion to dismiss on
speedy trial grounds); Phillips v. State, 

 (2) (a) (

) (2006) (holding that counsel was not ineffective for failing to file a motion to
dismiss based on the sufficiency of the indictment).

                                           7
 A15A1952. PAGE v. THE STATE.



      BOGGS, Judge, concurring fully and specially.

      While I concur fully with the majority, I write specially to point out that the

issue in Division 2 is not the date Page began to serve his sentence, nor is it the date

the judgment of conviction and sentence was filed with the clerk. Rather, the event

that gives rise to the trial court’s authority to revoke probation for violation of a

condition of the sentence is the imposition of the sentence itself, both logically and

practically. And the court’s sentence becomes effective once it is reduced to writing

and signed by the trial judge. Curry v. State, 

 (4) (

)

(1981) (“An oral declaration as to what the sentence shall be is not the sentence of the
court; the sentence signed by the judge is[ ]”), citing Morgan v. Mount, 

(

) (1943) (legal sentence is as put in writing and signed by the judge).

Indeed, once sentence is pronounced, the accused is in legal custody and not free to

leave. See Suter v. State, 

 (1) (

) (2002).

      While the finality of a criminal judgment (determined by the filing of the

judgment with the clerk) is required, for example, to pursue an appeal under the

Appellate Practice Act1 or to determine the term of court within which the trial court

entered its judgment,2 it does not control the effective date of the sentence. The date

a final judgment of conviction and sentence becomes effective, and the date the

sentence becomes effective for purposes of enforcing the punishment imposed, are

independent of each other for the simple reason that the trial court must have the

authority to immediately enforce what it just imposed by a written and signed order.

      Page’s sentence became effective on August 26 when the order was signed by

the trial court. Therefore, when Page violated a special condition of that sentence



      1
          See Jenkins v. State, 

 (1) (

) (2008).
      2
       Bowen v. State, 

 (

) (1977) (entry of
judgment is when it is filed with the clerk; trial judge has power during the term of
court in which judgment is entered to revise, correct, revoke, or modify that
judgment).

                                           2
three days later (and before he even began to serve time under the sentence), the trial

court was within its authority to revoke his probation for such violation. It is for this

reason that Page’s ineffective assistance claim is without merit, as he has not shown

that his trial counsel performed deficiently in failing to attack the revocation on this

ground.

      I am authorized to state that Judge Mercier joins in this special concurrence.




                                           3