Calvin Jones v. State

• Court: Court of Appeals of Georgia
• Decided: June 18, 2013
• Docket: A13A0273
• Status: Published

Opinion

FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, 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/

June 18, 2013

In the Court of Appeals of Georgia A13A0273. JONES v. THE STATE. DO-011 C

DOYLE , Presiding Judge.

Following a bench trial, Calvin Jones was convicted of armed robbery1 for

using a knife to steal beer from a gas station. Jones appeals from the denial of his

amended motion for new trial, arguing that the trial court erred by rejecting his claim

that the six-year delay in the appellate process violated his constitutional due process

rights. Because the trial court failed to properly exercise its discretion by addressing

the four factors in Barker v. Wingo,2 we vacate and remand.

In May 2005, Jones was indicted with armed robbery and aggravated assault,

which indictment accused him of stealing beer from a gas station and stabbing the

1 OCGA § 16-8-41 (a). 2 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972). store clerk with a knife or similar object during his escape. In November 2005, the

trial court held a bench trial, finding him guilty of the robbery and acquitting him of

the assault, and entered a recidivist conviction on the robbery charge. In December

2005, Jones’s trial counsel filed a timely motion for new trial.

In the fall of 2006, Stephen Scarborough of the Office of the Public Defender

was assigned to represent Jones on appeal. Around the same time, however, Jones

filed a pro se motion for appointment of appellate counsel so that he could assert a

claim of ineffective assistance of counsel. That motion was granted in March 2007,

but it apparently was not sent to appointed counsel.

In April 2007, Scarborough learned of the order granting Jones’s motion, and

Scarborough initiated a public defender conflict transfer request form. Two years

later, another transfer request form was filled out, but due to funding issues, new

counsel was not appointed until February 2010. By that time, trial counsel’s original

case file had been lost.

In February 2011, newly appointed appellate counsel filed an amended motion

for new trial asserting an ineffective assistance claim, challenging the unavailability

of a gas station security video reviewed by police, and arguing that Jones’s right to

appeal had been frustrated because of the lost case file and the time taken to appoint

2 appellate counsel. The trial court held a hearing in June 2011 and denied the motion

in December 2011, giving rise to this appeal.

Jones argues that the trial court erred by denying his due process claim based

on appellate delay. The Supreme Court of Georgia

has addressed the proper resolution of claims asserting due process violations based on inordinate appellate delay, and determined that the appropriate analysis is application of the four speedy trial factors set forth in Barker v. Wingo, which are the length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.3

These factors are each to be balanced in an exercise of the trial court’s discretion,

which we review for abuse.4 In the Barker v. Wingo context, the Supreme Court has

noted that “[i]t is imperative, therefore, that in [such] cases . . . the trial court enter

findings of fact and conclusions of law consistent with Barker. Absent such findings,

there is no exercise of discretion for this Court to review.”5

3 (Citation and punctuation omitted.) Smith v. State, 292 Ga. 588, 592 (5) (740 SE2d 129) (2013), citing Chatman v. Mancill, 280 Ga. 253, 256 (2) (a) (626 SE2d 102) (2006). 4 See, e.g., Glover v. State, 291 Ga. 152, 156 (3) (728 SE2d 221) (2012) (finding no abuse of discretion by trial court). 5 Higgenbottom v. State, 288 Ga. 429, 430-431 (704 SE2d 786) (2011).

3 Here, the trial court’s order, which was prepared by the State, makes only a

cursory analysis of the Barker factors. The order first states in conclusory fashion that

Jones failed to show that ineffectiveness by appellate counsel was the reason for

delay, without attributing the delay to any other cause. It next concludes that Jones

“has not attempted to show that there is [prejudice] and therefore this claim is without

merit.”6 But this is unsupported by the record, which shows that Jones’s appellate

counsel had explicitly argued to the court in briefing and at the hearing that the delay

had caused the loss of his case file, which frustrated his ability to present his

ineffective assistance of counsel claim. Thus, the record clearly shows that Jones did

attempt to demonstrate prejudice, and the trial court abused its discretion by basing

its ruling in part on a finding that he did not.7

Further, the order makes no findings whatsoever about the remaining two

Barker factors – length of the delay and Jones’s assertion of his right to a timely

appeal – apparently relying on its unsupported finding that Jones made no attempt to

6 (Emphasis supplied.) 7 In light of the trial court’s failure to do so, we make no ruling on the merits of Jones’s prejudice argument at this time. We note only that because of Jones’s clear argument on the merits, a ruling based on his failure to make an argument is erroneous.

4 show prejudice. But even if the trial court had correctly found that no prejudice

existed, “[w]hile a trial court’s findings as to the presence or absence of prejudice are

important, they cannot alone establish a defendant’s . . . speedy [appeal]8 claim

without consideration of the other Barker criteria.”9 In light of this cursory analysis,

“we find the limited findings made by the trial court insufficient to provide for proper

appellate review.”10 Accordingly, “[t]he trial court’s order is vacated[,] and the case

[is] remanded for the entry of a proper order pursuant to Barker.”11

Judgment vacated and case remanded with direction. McFadden and Boggs,

JJ., concur.

8 We use the term “‘speedy appeal’ as a convenient label to encompass all claims of inordinate delay that impair a defendant’s right of access to the courts in post-conviction proceedings arising out of the direct appeal of non-capital cases.” Chatman, 280 Ga. at 257, n. 5. 9 Higgenbottom, 288 Ga at 431. 10 Id. 11 Id.