In the Interest of E. R., a Child v. State

• Court: Court of Appeals of Georgia
• Decided: December 28, 2022
• Docket: A22A1173
• Status: Published

Opinion

SECOND DIVISION RICKMAN, C. J., MILLER, P. J., PIPKIN, J.

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. https://www.gaappeals.us/rules

December 28, 2022

In the Court of Appeals of Georgia A22A1173. IN THE INTEREST OF E. R., a child.

MILLER, Presiding Judge.

The Juvenile Court of Chatham County adjudicated E. R., a then

fourteen-year-old male, delinquent for acts which, if committed by an adult, would

constitute the crimes of aggravated assault and various violent and other offenses and

then sentenced him pursuant to OCGA § 15-11-2 as a Class B designated felon to 36

months in the custody of the Department of Juvenile Justice, including 18 months in

restrictive custody. E. R. appeals, arguing that the officials from the probate office

and the trial court failed to provide him with their complete predisposition report at

least five days before the dispositional hearing because, at the hearing, they testified

that they had changed their recommendation from what was provided in the report. We affirm because E. R. did not challenge or object on this basis in the trial court,

and so this issue is not preserved for appellate review.

According to the factual proffers in this case, law enforcement officers were

called to respond to a domestic incident involving E. R., his mother, and his

girlfriend. The three were involved in a heated argument over the fact that the

girlfriend was breaking up with E. R. E. R.’s mother was in her car with the girlfriend

when E. R. approached the vehicle and pointed a firearm at them. While the two were

trying to get away, E. R. entered the vehicle and struck his girlfriend in her face. E.

R. told the two that, “We will all die in here tonight.”

Additionally, in a second reported incident in March 2021, E. R. was handling

a gun in the presence of his friend, D. L., when the gun discharged and hit D. L. in the

chest, causing him to become permanently paralyzed. In a third reported incident in

May 2021, law enforcement found E. R. driving a stolen moped while unlicensed.

Finally, in a fourth incident which occurred in May 2021, E. R. broke into a residence

and stole a firearm.

The State filed four separate delinquency petitions against E. R., collectively

charging him with first degree burglary (OCGA § 16-7-1 (b)), aggravated assault

(OCGA § 16-5-21), false imprisonment (OCGA § 16-5-41), possession of a handgun

2 by a minor (OCGA § 16-11-132 (b)), battery (OCGA § 16-5-23.1), simple battery

(OCGA § 16-5-23), obstruction of an officer (OCGA § 16-10-24 (a)), two counts of

terroristic threats (OCGA § 16-11-37 (b)), theft by receiving stolen property (OCGA

§ 16-8-7), driving without a license (OCGA § 40-5-20 (a)), a second count of

possession of a handgun by a minor (OCGA § 16-11-132 (b)), and reckless conduct

(OCGA § 16-5-60 (b)). Pursuant to a plea agreement, the State dismissed one of the

counts for terroristic threats and the counts of false imprisonment, simple battery,

obstruction of an officer, and burglary, and E. R. admitted guilt to the remaining

offenses.

A separate disposition hearing was scheduled for July 2, 2021. Before the

hearing, E. R.’s intake officer prepared a social history report pursuant to OCGA §

15-11-590, which was filed on June 23, 2021. In the report, the intake officer

concluded that E. R. was a “high-risk youth” and recommended a sentence of two

years of probation with numerous restrictions.

At the disposition hearing, E. R.’s intake officer testified that she was “torn”

about her recommendation of probation because the Georgia Juvenile Justice’s

dispositional matrix would recommend that E. R. be committed into restrictive

custody based on his history and the severity of the crimes he committed. After

3 considering the report and the recommendation contained therein, the trial court

ordered that E. R. be committed to DJJ’s custody and then asked the parties for their

input as to an appropriate amount of time. At that time, the State recommended that

E. R. be placed in restrictive custody with DJJ for 18 months. E. R. argued that he

should be placed in a group home or other less-restrictive facility. At the conclusion

of the hearing, and upon considering the arguments of counsel, the trial court

sentenced E. R. as a Class B designated felon under OCGA § 15-11-2 (13) (A) (ii)

and sentenced him to 36 months in DJJ custody, with 18 months to be spent in

restrictive custody. This appeal followed.

In his sole argument on appeal, E. R. claims that his disposition must be

overturned because, during the disposition hearing, the intake officer changed her

recommendation from what she recommended in the predisposition report. E. R. notes

that he has a statutory right under OCGA § 15-11-109 (f) to receive the predisposition

report at least five days prior to the disposition hearing, and he contends that the

intake officer’s change in recommendation caught him by surprise and violated his

right to due process.

E. R., however, failed to object or raise any challenge to the allegedly changed

recommendation before the juvenile court, nor did he move for a continuance to

4 obtain more time to review the allegedly new recommendation. “As this is a court for

the correction of errors, we will not consider any issues raised on appeal that were not

raised and preserved in the trial court.” (Citation omitted.) In the Interest of A. A., 253

Ga. App. 858, 862 (2) (560 SE2d 763) (2002). Similarly, to the extent that E. R.

alleges that his due process rights were violated, “[a] constitutional issue cannot be

considered when asserted for the first time on appeal but must be clearly raised in the

trial court and distinctly ruled upon there. Contentions regarding a constitutional

issue which were not made below are thus not passed upon here.” (Citation omitted.)

Id. at 862 (3). Because the record does not show that these issues were appropriately

raised below, we affirm the trial court’s adjudication and disposition of this matter.

Judgment affirmed. Rickman, C. J., and Pipkin, J., concur.