Jurdis Nelson v. State

• Court: Court of Appeals of Georgia
• Decided: September 10, 2020
• Docket: A20A1412
• Status: Published

Opinion

THIRD DIVISION MCFADDEN, C. J., DOYLE, P. J., and HODGES, 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

DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.

August 21, 2020

In the Court of Appeals of Georgia A20A1412. NELSON v. THE STATE.

MCFADDEN, Chief Judge.

In 2007, after a jury trial, Jurdis Nelson was convicted of various offenses,

including rape. His conviction was affirmed on appeal in an unpublished opinion.

Nelson v. State, 332 Ga. App. XXIX (Case No. A15A1273, decided May 22, 2015)

(Nelson I). Before, during, and after that direct appeal, Nelson filed numerous pro se

motions, some while he was represented by counsel. In most of those filings, Nelson

argued that the prosecution had used fabricated DNA evidence to convict him.

On June 14, 2017, the trial court entered an order denying all of Nelson’s

“currently-pending pro se motions,” which included his motions for appointment of

post-conviction counsel, his challenges to the DNA evidence, and his motions to correct a void sentence. Nelson now appeals pro se from the June 14, 2017 order and,

finding no error, we affirm.

1. Appellate jurisdiction.

As an initial matter, we consider our appellate jurisdiction. See State v. Smith,

308 Ga. App. 345, 348 (1) (707 SE2d 560) (2011) (appellate court has “a duty to

inquire into its jurisdiction to review the errors alleged on appeal”) (citations and

punctuation omitted). In this case, Nelson appeals from an order that was final for

purposes of OCGA § 5-6-34. See OCGA § 5-6-34 (a) (1) (defining final judgment as

one “where the case is no longer pending in the court below”). Among other things,

that final order contained a ruling denying Nelson’s request for appointment of post-

conviction counsel, which is directly appealable to this court. Pierce v. State, 289 Ga.

893, 894 (1) (717 SE2d 202) (2011); Hight v. State, 308 Ga. App. 595 n. 2 (708 SE2d

555) (2011). So “we can . . . address ‘all judgments, rulings, or orders rendered in the

case which are raised on appeal and which may affect the proceedings below.’ OCGA

§ 5-6-34 (d).” Hight, supra.

2. Rulings in the trial court’s June 14, 2017 order.

The pro se motions which the trial court denied in the June 14, 2017 order fall

into three broad categories: motions filed by Nelson at times when he was represented

2 by counsel; motions filed by Nelson before his direct appeal in Nelson I; and motions

filed by Nelson after his direct appeal in Nelson I at times when he was not

represented by counsel.

(a) Rulings on pro se motions filed when Nelson was represented by counsel

and motions filed before Nelson’s direct appeal in Nelson I.

Nelson’s challenges to rulings on the first two categories of motions are easily

disposed of. The motions which Nelson filed pro se despite being represented by

counsel are legal nullities, Ricks v. State, 307 Ga. 168, 169 (835 SE2d 179) (2019),

and although the trial court should have dismissed rather than denied those motions

we may affirm the trial court’s denial because the trial court did not address the merits

of the motions. See Brooks v. State, 301 Ga. 748, 752 (2) (804 SE2d 1) (2017) (we

may affirm rather than vacate trial court’s “denial” of motion that should have been

dismissed if trial court did not rule on motion’s merits). There is also no ground for

reversing the trial court’s denial of motions which Nelson filed before his direct

appeal in Nelson I. Because any errors Nelson seeks to raise in connection with those

motions could have been asserted in his first appeal, they cannot form the basis for

post-conviction relief. See Hollmon v. State, 305 Ga. 90, 92 (2) (823 SE2d 771)

(2019).

3 (b) Remaining rulings.

In the remaining rulings, the trial court denied motions seeking appointment

of post-conviction counsel, challenging the DNA evidence, and challenging the

sentence as void. Nelson has shown no reversible error regarding those rulings.

(i) Appointment of post-conviction counsel.

In at least one motion filed after Nelson’s direct appeal from his conviction, he

sought the appointment of post-conviction counsel. The trial court denied that request

on the ground that, generally, an indigent defendant is entitled to representation by

counsel only for the trial and direct appeal from the conviction and sentence. See

Brooks, 301 Ga. at 752-753 (3). Although Nelson enumerated the trial court’s ruling

on this issue as error, he offered no argument or citation to authority to support this

claim in his appellate brief. We deem the claim abandoned pursuant to Court of

Appeals Rule 25 (c) (2), which provides that “[a]ny enumeration of error that is not

supported in the brief by citation of authority or argument may be deemed

abandoned.” See Bruster v. State, 291 Ga. App. 490, 492 (4) (662 SE2d 265) (2008)

(applying Rule 25 (c) (2) to deem enumeration of error abandoned in appeal from

criminal conviction brought by pro se appellant).

(ii) DNA evidence.

4 After the ruling in Nelson I, Nelson submitted numerous motions and other

filings claiming that newly discovered evidence showed that DNA evidence had been

fabricated. Like the trial court, we construe these as an extraordinary motion for new

trial. See Hollmon, 305 Ga. at 91-92 (2) (“A defendant who . . . has had a conviction

affirmed on direct appeal may gain further review of the judgment of conviction only

by filing an extraordinary motion for new trial or petition for writ of habeas corpus.”)

(citation and punctuation omitted). The precise nature of the purportedly newly

discovered evidence is not clear from Nelson’s pro se brief and filings, but it is clear

from the record that Nelson was aware of that evidence before his then-counsel

moved for a new trial in 2013 because, in several pro se motions and other filings that

he submitted to the trial court before the 2013 motion for new trial, Nelson asserted

that the state’s DNA evidence had been fabricated. Because Nelson could have, but

did not, raise the fabricated-DNA claim in his motion for new trial, the trial court did

not err in denying his extraordinary motion for new trial based on that claim. See

Bharadia v. State, 297 Ga. 567, 573-574 (2) (774 SE2d 90) (2015).

(iii) Void sentence.

The trial court denied Nelson’s motions challenging his sentence as void.

Nelson enumerates this ruling as error but, as with his claim regarding appointment

5 of counsel, he has abandoned the enumeration by failing to support it with any

argument or citation to authority in his appellate brief. See Court of Appeals Rule 25

(c) (2).

Judgment affirmed. Doyle, P. J., and Hodges, J., concur.