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to due process was violated when his probation was revoked, and (2) he received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, 257 Ga. App. 190, 194-195 (3) (570 SE2d 634) (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, 318 Ga. App. 45, 46 (1)
(733 SE2d 351) (2012), citing Strickland v. Washington, 466 U. S. 668, 688 (III) (104
SCt 2052, 80 LE2d 674) (1984).
6
See Curry v. State, 248 Ga. 183, 185 (4) (281 SE2d 604) (1981). See also
Vann v. State, 234 Ga. App. 130 (506 SE2d 173) (1998).
7
See, e.g., In re Tidwell, 279 Ga. App. 734, 739 (1) (b) (632 SE2d 690) (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, 207 Ga. App. 677, n. 1 (428 SE2d 815) (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, 289 Ga. 758, 764 (2) (b) (2) (716 SE2d 154) (2011) (citations
omitted), quoting Wilford v. State, 278 Ga. 718, 719-720 (606 SE2d 252) (2004), and
United States v. DiFrancesco, 449 U. S. 117, 136 (101 SCt 426, 66 LE2d 328)
(1980). See also OCGA § 42-8-60.
9
See Jones v. State, 329 Ga. App. 439, 448 (4) (765 SE2d 639) (2014)
(explaining that “the failure to make a meritless objection cannot be evidence of
ineffective assistance.”) (punctuation omitted). Cf. Chalk, 318 Ga. App. at 48-49 (1)
(c) (holding that counsel was not ineffective for failing to file a motion to dismiss on
speedy trial grounds); Phillips v. State, 278 Ga. App. 198, 201-203 (2) (a) (628 SE2d
631) (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, 248 Ga. 183, 185 (4) (281 SE2d 604)
(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, 195 Ga. 281
(24 SE2d 17) (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, 259 Ga. App. 28, 29 (1) (576 SE2d 10) (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, 284 Ga. 642, 643 (1) (670 SE2d 425) (2008).
2
Bowen v. State, 144 Ga. App. 329, 332-333 (241 SE2d 431) (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