FIFTH DIVISION MCFADDEN, P. J., HODGES and PIPKIN, 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. https://www.gaappeals.us/rules
January 22, 2026
In the Court of Appeals of Georgia A25A1439. TOLBERT v. THE STATE.
HODGES, Judge.
In November 2012, a jury found Terrell Tolbert guilty of aggravated assault and
possession of a firearm during the commission of a felony.1 Following a hearing held
in May 2022, the trial court entered an order denying Tolbert’s motion for new trial
in July 2022. Tolbert appeals, claiming that the trial court erred and that he received
ineffective assistance of trial counsel in various ways. All of Tolbert’s enumerations
of error, however, have been abandoned because his appellate counsel, J. Mark
Shelnutt, has failed to comply with the rules of this Court. While we have attempted
1 The jury also found Tolbert guilty of an additional charge of possession of a firearm by a convicted felon. However, the State moved to dismiss this charge before Tolbert was sentenced, and the trial court entered an order dismissing that count. to reach Tolbert’s claims of error where possible, every enumeration appears to be
unsupported, belied by the record, or otherwise unpersuasive. Accordingly, we find
no error and affirm.
Viewing the evidence in the light most favorable to the verdict,2 the record
shows that in June 2011, Tolbert walked into a store and asked the manager if he could
view the store’s surveillance video. While at the store, Tolbert explained that he
wanted to see the video because he had dropped a bag outside the store and another
man, the eventual victim, had supposedly picked it up. Tolbert then explained that he
was leaving but would be “coming back to straighten it [out].” He indicated that he
was going to get his “strap,” meaning a firearm. Approximately 30 to 45 minutes later,
Tolbert returned to the area and confronted the victim. He walked up to the victim
and said, “[e]ither you’re going to give me my marijuana . . . or my money.” Tolbert
then pulled out a revolver and pointed it at the victim. The victim pushed Tolbert
away in an attempt to get inside a nearby car, and Tolbert responded by saying, “[i]f
you touch me again, I’m going to shoot you.” The victim and Tolbert then struggled
over the revolver and the weapon fired, missing the victim. As the victim tried to get
2 Jackson v. Virginia, 443 US 307 (99 SCt 2781, 61 LE2d 560) (1979). 2 into the car, Tolbert fired the revolver again, this time striking the victim in the leg.
The victim got into the car and left the scene. Tolbert walked down the street carrying
his revolver.
A few days after the shooting, law enforcement interviewed the victim and he
was able to identify Tolbert as his shooter. Tolbert was indicted for aggravated assault
and possession of a firearm during the commission of a felony, and a jury convicted
him of both charges. Tolbert was sentenced as a recidivist under OCGA § 17-10-7(a)
and (c). Tolbert timely filed a motion for new trial, later amended, which the trial
court denied. He now appeals his convictions and the trial court’s denial of his motion
for new trial.
1. We note at the outset that Tolbert was convicted in November 2012 and his
appeal was first docketed more than 12 years later in March 2025.3 The trial court did
3 This Court initially dismissed this appeal in April 2025 because Tolbert failed to timely file a brief in accordance with the rules of this Court. See Court of Appeals Rule 23(a). Tolbert filed a motion for reconsideration, claiming that his brief was not filed because the trial court did not provide notice that the appeal was docketed. We reconsidered our dismissal and reinstated this appeal so Tolbert could demonstrate the “strong grounds for appeal” he asserted that this case contained. We further note that our reinstatement order provided that “Tolbert shall have 20 days from the date of this order [April 29, 2025] to file his appellate brief[,]” which ran through May 19, 2025. Tolbert, however, filed his brief on May 21, 2025, and offers no excuse for his second tardy brief. 3 not hear Tolbert’s motion for new trial until May 2022, more than nine years after his
conviction. While the trial court notes that Tolbert had at least four post-conviction
attorneys and there were delays associated with the continuances requested by his
successive counsel, the record also demonstrates that no transcript had been requested
until April 2019, more than six years after Tolbert’s conviction.
In March 2012, the Supreme Court considered an appeal from a motion for new
trial which took more than fifteen years to resolve. See Shank v. State, 290 Ga. 844,
849(5)(c) (725 SE2d 246) (2012). In deciding that case, the Supreme Court issued the
following admonition:
We do not condone this inordinate delay in the motion for new trial proceeding. This Court is unfortunately seeing such extraordinary post-conviction, pre-appeal delays with greater frequency[.] . . . These delays put at risk the rights of defendants and crime victims and the validity of convictions obtained after a full trial. We therefore reiterate that it is the duty of all those involved in the criminal justice system, including trial courts and prosecutors as well as defense counsel and defendants, to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay.
Id. While Tolbert does not raise any due process challenge related to the inordinate
delay in his case, we take this opportunity to reiterate the Supreme Court’s
4 admonition in Shank and remind all parties involved in the criminal legal system that
it is their duty to ensure that such delays do not occur in the future. See id.
2. Turning to the merits of this appeal, we note that Tolbert has identified 15
enumerations of error. With regard to every enumeration, Tolbert has failed in
multiple ways to follow Court of Appeals Rule 25(a), setting forth the requirements
for appellate briefing. In every enumeration, Tolbert has failed include any citation to
relevant authority beyond occasionally citing overarching principles of law. “Where
an appellant lists an enumeration of error but, in support of that enumeration, merely
sets forth the applicable standard of review without any substantive discussion, such
enumeration will be deemed abandoned.” Podlin v. Cichowski, 375 Ga. App. 481, 483
(915 SE2d 662) (2025); see also Court of Appeals Rule 25(d)(1) (“Any enumeration
of error that is not supported in the brief by citation of authority or argument may be
deemed abandoned.”). In this case, Tolbert’s brief, at best, contains
general principles of law applicable to the issue at hand, but then simply recites his version of certain facts without ever applying any particular legal authority to the specific facts and circumstances of this case. Suffice it to say, rhetoric is not a substitute for cogent legal analysis, which is, at a minimum, a discussion of the appropriate law as applied to the relevant facts.
5 (Citation, punctuation, and emphasis omitted). Podlin, 375 Ga. App. at 483.
Worse, Tolbert’s brief is replete with citations to authority which are irrelevant,
cited for propositions that are unsupported (or even contrary to) the actual language
in the cases, or cited as authority despite having been overturned; in some instances,
the brief includes quotations which do not exist in the cases cited. Moreover, we have
identified at least two instances where Tolbert materially misrepresents the record on
appeal. These violations of our rules have frustrated this Court’s review, and we
conclude that the enumerations are abandoned as a result. See Brittain v. State, 329
Ga. App. 689, 704(4)(a) (766 SE2d 106) (2014) (refusing to address arguments
appellant raised but did not support with citations to authority or meaningful
argument). Nevertheless, having reviewed Tolbert’s arguments to the extent possible,
we find them unavailing for the following reasons.
3. Tolbert first asserts that the evidence was insufficient to support his
convictions for aggravated assault and possession of a firearm by a convicted felon. As
best as we can surmise, Tolbert argues that the evidence was insufficient because there
was credible evidence of an accident or that his conduct was justified. Beyond citing
6 Jackson for the general rule regarding the sufficiency of the evidence, this enumeration
only relies on two pieces of substantive authority. Tolbert asserts in his brief that
[i]n similar cases, Georgia appellate courts have found the evidence insufficient to support convictions when the alleged victim is the aggressor and when the defendant acts in perceived self-defense or accident. See Harris v. State, 252 Ga. App. 849 [(557 SE2d 452)] (2001) (reversing conviction where accident was a viable defense); Ross v. State, 279 Ga. 365 [(614 SE2d 31)] (2005) (discussing the prejudicial effect of character evidence when accident or justification is at issue).
(Punctuation omitted). Our review of the Harris case shows that it has nothing do
with sufficiency of the evidence and does not discuss self-defense or accident. See
generally Harris, 252 Ga. App. at 849. Similarly, in the Ross case, the Supreme Court
discussed neither accident nor justification, nor did it analyze sufficiency of the
evidence in any substantive way. See generally Ross, 279 Ga. at 365.4 We find that
neither of these case citations support the proposition of law alleged, and because no
other authority cited supports Tolbert’s position, he has not demonstrated error and
this enumeration is abandoned for the reasons set forth in Division 2.
4 We also note that after Tolbert filed his brief, the Supreme Court recognized that Ross has been superceded by statute and is no longer binding precedent. Fraser v. State, __ Ga. __ (920 SE2d 644, 650(2)(a)) (2025). 7 4. Tolbert next argues that the trial court erred by failing to instruct the jury on
the defense of accident. Tolbert again relies on the Harris case to assert that “the
failure to give an accident charge in a case where the evidence supports that theory
constitutes reversible error.” As noted in Division 3, the Harris case has nothing to
do with accident. More troubling, Tolbert asserts that: “Georgia appellate courts have
held that ‘[w]here the defendant’s sole defense is accident and there is evidence to
support it, it is reversible error for the trial court to fail to give a charge on accident.’”
Tolbert attributes this direct quote to both Sanders v. State, 283 Ga. 372, 375 (659
SE2d 376) (2008), and Shaw v. State, 292 Ga. 871 (742 SE2d 707) (2013). Our review
of these cases, however, shows neither case discusses the defense of accident, nor
contains the quote attributed to them. See generally Sanders, supra; Shaw, supra.
Beyond the above fictive precedent, Tolbert simply relies on overarching principles
of law not applied to the facts of this case. Consequently, this enumeration is also
abandoned for the reasons set forth in Division 2.
5. Tolbert avers that the trial court erred in giving a justification charge that
omitted the phrase “forcible felony,” thereby — in his view — rendering the defense
incomplete and misleading. We note that Tolbert has failed to cite the record for the
8 allegedly deficient jury instruction, or even quote the allegedly erroneous language.
Because Tolbert has not provided a sufficient citation to the record to evaluate his
enumeration, it is abandoned. See Hudson v. State, 246 Ga. App. 335, 335-36(2) (539
SE2d 860) (2000) (concluding that an appellant waived review of his objection to a
jury instruction where, among other violations of our rules, the appellant failed to
provide a record cite to an allegedly objectionable jury instruction); see also Arnold v.
State, 262 Ga. App. 61(1) (584 SE2d 662) (2003) (“As we have reiterated time and
time again, this Court will not cull the record in search of error on behalf of a party.”)
(citation and punctuation omitted). Moreover, we note that Tolbert solely relies on
Laney v. State, 184 Ga. App. 463, 467(2) (361 SE2d 841) (1987), for the proposition
that a “jury must be instructed not only on justification generally, but also the
particular ‘forcible felony’ that underlies the defendant’s use of force.” However, this
proposition of law — in Laney and generally — has been long overruled. See Holmes
v. State, 273 Ga. 644, 647(4) (543 SE2d 688) (2001). Tolbert cited Laney without
cautioning us of the decades-old negative treatment by the Supreme Court. Because
Tolbert has failed to cite any authority to support his contention that the trial court’s
9 instruction on justification was erroneous, this enumeration has left this Court with
nothing to review.
6. Tolbert next argues that the trial court erred by allowing a photo line-up to
go out with the jury in violation of the continuing witness rule. Specifically, Tolbert
complains that the jury was impermissibly allowed to have a photo line-up containing
the victim’s handwritten comment that Tolbert was “the [explicative] that shot
[him]” while they deliberated. As with the prior divisions, this enumeration is
abandoned because of Tolbert’s reliance on inapt authority. For example, Tolbert
purports to directly quote Wilson v. State, 259 Ga. 55 (376 SE2d 676) (1989), for the
proposition that such evidence violates the continuing witness rule because such
exhibits “can unfairly bolster the credibility of the witness in the eyes of the jury.”
Wilson, however, has nothing to do with the continuing witness rule, and nothing
resembling the attributed quote exists in the opinion. See generally Wilson, supra.
7. Tolbert argues the trial court erred by overruling an objection to the State
calling him a “drug dealer” in closing arguments. Tolbert cites the trial transcript and
claims the prosecutor told the jury “[Tolbert is] a convicted felon. He’s a drug
dealer” and argued such a statement was improper. This argument, too, fails for
10 multiple reasons. First, Tolbert has inexplicably not provided any record citation to
his purported objection or the trial court overruling the same. As noted in Division 2,
this Court will not search for specific references and may not consider enumerations
that are not supported by proper citations to the record. Sloans v. State, 360 Ga. App.
256, 257 (861 SE2d 130) (2021); Court of Appeals Rule 25(d)(1)(i). The Supreme
Court of Georgia has repeatedly held that “the defendant’s failure to object to the
State’s closing argument waives his right to rely on the alleged impropriety of that
argument as a basis for reversal.” (Citation and punctuation omitted.) Myers v. State,
313 Ga. 10, 14(2) (867 SE2d 134) (2021). As such, even if Tolbert could show the
prosecutor’s argument was impermissible, his failure to demonstrate by the record
that he objected to the purportedly improper statement leaves this Court with nothing
to review.
Moreover, and more troubling, the specific quote that Tolbert attributed to the
State in his brief is not reflected in the transcript on the page he cited to for the quote.
Instead, the State stated “[h]e’s a convicted felon. A convicted felon who had a
firearm[,]” and we caution his appellate attorney Shelnutt that the misrepresention
of evidence in the record is a violation of State Bar Rules. Flott v. Se. Permanente Med.
11 Group, 274 Ga. App. 622, 623(1) (617 SE2d 598) (2005). Even if this argument is not
waived, and the brief accurately cited the record, this enumeration would still be
abandoned because the brief relies wholly on unsupported statements of law. Tolbert
relies on Shaw for the contention that “Georgia law prohibits such prosecutorial
misconduct[,]” when that case has nothing to do with closing arguments or
prosecutorial misconduct. See Shaw, 292 Ga. at 871. Likewise, Tolbert claims that in
Collier v. State, 266 Ga. App. 345 (596 SE2d 795) (2004), this Court reversed a
conviction after a prosecutor made impermissible closing remarks not based on trial
evidence. The Collier case, however, does not discuss statements by a prosecutor not
being supported by the evidence beyond simply noting that prosecutors have “wide
latitude to argue inferences from the evidence” in the context of similar transactions.
Collier, 266 Ga. App. at 353(2)(a). Because Tolbert does not rely on any relevant
authority to support this enumeration, it is abandoned for the reasons set forth in
Division 2.
8. Tolbert next argues that the use of his prior conviction both as evidence for
the subsequently dismissed charge of possession of a firearm by a convicted felon
discussed in Footnote 1, supra, and for the purpose of recidivist sentencing was error,
12 but this argument has also been abandoned for failing to cite any appropriate authority.
This enumeration only includes two citations to authority, both (purportedly)
supporting his contention that “Georgia courts have long held that evidence used
solely to prove an element of a charge that has been dismissed cannot be repurposed
for recidivist sentencing.” The first, London v. State, 260 Ga. App. 780 (580 SE2d
686) (2003), has nothing to do with recidivist sentencing. The second, Hillman v.
Johnson, 297 Ga. 609 (774 SE2d 615) (2015), while analyzing the use of prior
convictions in recidivist sentencing, makes no reference to dismissed charges and does
not appear to support his argument. While this Court observed in Hillman that, in
some circumstances, the dual-use of evidence can be impermissible, see King v. State,
169 Ga. App. 444, 445 (313 SE2d 144) (1984), such a rule”has no application to
crimes that do not have as an element the defendant’s prior conviction of a felony.”
Hillman, 297 Ga. at 614(2)(a). Because neither of the charges that Tolbert was
convicted of have as an element that he was a convicted felon, Hillman actually stands
for the exact opposite of Tolbert’s contention.
9. Tolbert’s next enumeration, regarding recidivist sentencing, is also
abandoned for failing to cite any relevant authority. While Tolbert cites two cases to
13 assert that “improper reliance on prior convictions — particularly where the charge
has been abandoned — undermines the legitimacy of sentencing[,]” as best as we can
tell from our review, neither of these cases have anything to do with sentencing and
certainly do not support the statement of law for which he cites them. The cases
improperly relied on are Taylor v. State, 316 Ga. 17 (885 SE2d 787) (2023)
(considering whether a given self-defense instruction was erroneous and completely
silent as to sentencing); and Ross, 279 Ga. at 365 (discussing whether a trial court
erred in failing to accept a defendant’s stipulation to a prior felony conviction and
completely silent as to sentencing). Because this enumeration is not supported with
authority, it is abandoned for the reasons set forth in Division 2.
10. In Tolbert’s next two enumerations of error, which he has combined for
argument, he asserts that his trial counsel was ineffective for failing to stipulate to his
prior felony conviction and failing to request a bifurcated trial on the charge of
possession of a firearm by a convicted felon. “[A] trial judge shall bifurcate the
proceedings if the charge of possession of a firearm by a convicted felon is unrelated
to any other count of the indictment. But bifurcation is required only on motion by the
defendant.” (Citations and punctuation omitted). Temple v. State, 253 Ga. App. 606,
14 609(2)(a) (561 SE2d 132) (2002). In this case, the trial court concluded that even if
Tolbert’s trial counsel was deficient in these regards, there was no prejudice because
Tolbert had not demonstrated that the outcome of the trial would have been different.
“Under the standard of Strickland v. Washington, 466 U. S. 668[, 687, 694(III)]
(104 SCt 2052, 80 LE2d 674) (1984), to prevail on an ineffectiveness claim, [Tolbert]
must show that his trial counsel’s performance was deficient and that but for that
deficiency, a reasonable probability exists that the outcome of his trial would have
been different.” Vann v. State, 266 Ga. App. 238, 240(1) (596 SE2d 722) (2004). “If
[Tolbert] fails to satisfy either part of the Strickland test, his claim fails, and we need
not address the other part.” Moore v. State, 315 Ga. 263, 266(2) (882 SE2d 227)
(2022).
Regarding deficient performance, Tolbert attributed the following quote to his
trial counsel: “I did not request bifurcation because I didn’t realize it was required in
this situation. I don’t believe I have ever handled a bifurcated trial before.” We cannot
find this quote in the record and our review of the record indicates that trial counsel
15 actually testified that he “[did not] remember [his] thought process in regard to
requesting bifucation[.]” We note that this material — and unexplained —
misrepresentation as another example of Tolbert’s appellate attorney’s egregious lack
of candor to this Court, which has unnecessarily frustrated our review of his client’s
case. The trial court, however, found that Tolbert could prove that his trial counsel
was deficient for failing to bifurcate or stipulate to the prior conviction. Given the
commandment for trial courts to bifurcate such proceedings on the defendant’s
request, we assume, without deciding, that his trial counsel acted deficiently by failing
to do so. That assumption, however, does not end our inquiry.
Regarding prejudice, Tolbert relies on the Vann case to argue that he was
prejudiced because his trial counsel did not seek a curative instruction regarding
impermissible character evidence related to his prior convction. In Vann, this Court
concluded that a defendant was prejudiced by the introduction of a certified copy of
a prior conviction where “trial counsel did not request a charge that the jury limit its
consideration of the prior conviction to the charges of possession of a firearm by a
convicted felon.” Vann, 266 Ga. App. at 241(1). Without a limiting instruction “[t]he
jurors likely felt free to consider the evidence for whatever purpose they saw fit,
16 including improperly judging [the defendant’s] character and credibility.” (Citation
and punctuation omitted). Id. Unlike in the Vann case, however, Tolbert’s trial
counsel did seek, and received, a limiting instruction regarding the prior conviction.
Because the record belies Tolbert’s claim that he was prejudiced by the lack of a
limiting instruction, and he has not meaningfully advanced any other argument
regarding prejudice, he has abandoned these enumerations for the reasons provided
in Division 2.
11. In his next enumeration of error, Tolbert asserts that his trial counsel was
ineffective for failing to preserve for review the trial court’s failure to give an accident
instruction. Tolbert cites to Wilson, 259 Ga. at 55, for the general rule that failure to
renew a requested charge on accident waives appellate review, and Sanders, 283 Ga.
at 372, for the general contention that counsel may be deficient for failing to preserve
an objection to a jury charge if the charge is otherwise meritorious. As noted in
Division 4, however, Tolbert has failed to demonstrate he was entitled to an
instruction on accident. Because Tolbert failed to cite any authority to support his
contention that he was entitled to an accident instruction, this enumeration is
abandoned as well.
17 12. Tolbert next argues that he received ineffective assistance because his
attorney did not seek a limiting instruction during trial regarding his prior conviction
at the time the evidence was introduced instead of at the end of trial. Tolbert cites a
single case, Starling v. State, 285 Ga. App. 474 (646 SE2d 695) (2007), for a purported
rule that counsel is deficient for failing to seek a limiting instruction after evidence of
a prior felony conviction is introduced. In the Starling case, this Court found trial
counsel to be ineffective when they failed to object to a trial court omitting a limiting
instruction related to a prior felony conviction. Id. at 477-479(a), (b). As noted in
Division 10, there was a limiting instruction given in this case on this issue. At no
point does the Starling case suggest that counsel is deficient for seeking a limiting
instruction during jury instructions instead of a curative instruction when the evidence
is introduced. See id. at 477-478(a). Because Tolbert cites no authority to suggest that
the limiting instruction here was insufficient, he has not demonstrated error by the
record and this enumeration is also abandoned for the reasons set forth in Division 2.
See Gordon v. State, 373 Ga. App. 592, 600(2) (908 SE2d 297) (2024) (“The burden
is always on the appellant in asserting error to show it affirmatively by the record[.]”)
(citation and punctuation omitted).
18 13. Tolbert asserts that he received ineffective assistance because his counsel
permitted the photo line-up, with the victim’s written commentary, to go to the jury
without objection. In Division 6, we concluded that Tolbert had abandoned any
argument that the trial court violated the continuing witness rule because he failed to
support his argument with legal authority. We conclude that Tolbert has also
abandoned this enumeration by again failing to provide any legal authority to support
his argument. Tolbert cites Evans v. State, 253 Ga. App. 71 (558 SE2d 51) (2001), for
the contention that this Court “held that submission of such documents to the jury
without objection forfeits a critical safeguard.” The Evans case, however, says nothing
about critical safeguards, nor does the case analyze the continuing witness rule in any
substantive way. See Evans, 253 Ga. App. at 75(1) (concluding, without analysis, that
to the extent appellant raised a continuing witness objection, it was waived). Because
Tolbert has not demonstrated by the record that his counsel was deficient for failing
to object to this evidence going into the jury room, this argument is abandoned. See
Finnegan v. State, 371 Ga. App. 756, 759(1) (903 SE2d 141) (2024) (concluding that
a defendant abandoned ineffectiveness claims for failing to make any meaningful legal
argument or provide record citations to support this claim of error).
19 14. Tolbert next argues that his trial counsel was ineffective by agreeing to omit
forcible felony from the justification instruction. In Division 5, we concluded that he
had abandoned any argument that the instruction given on justification was erroneous.
Tolbert’s conclusory and unsupported argument in this enumeration also fails for the
same reason. Moreover, we note that the only case Tolbert cites in this enumeration
is Laney, 184 Ga. App. at 463, again without any cautioning that the authority was
expressly disapproved of by the Supreme Court decades ago. See Holmes, 273 Ga. at
647(4).
15. Tolbert asserts that he received ineffective assistance because his trial
counsel failed “to argue accident as a defense during [the] charge conference[.]”
Because Tolbert has not cited any meaningful authority in this enumeration,5 it is
unclear how this enumeration is different from the argument we rejected in Division
11. Regardless, because the argument is wholly unsupported, it is abandoned for the
same reason.
5 We note that Tolbert cites Taylor, 316 Ga. at 17, and Ross, 279 Ga. at 365, again in this enumeration regarding the use of his prior felony conviction. As we observed in Division 9, where Tolbert inexplicably cited these same cases for propositions of law that were not supported by the cases, his citation to these cases in this enumeration appears to be just as irrelevant. 20 16. Finally, Tolbert asserts that the cumulative effect of his trial counsel’s
deficiencies and the trial court’s errors deprived him of a fair trial. Our Supreme
Court has concluded that we must “consider collectively the prejudicial effect of trial
court errors and any deficient performance by counsel — at least where those errors
by the court and counsel involve evidentiary issues.” State v. Lane, 308 Ga. 10, 14(1)
(838 SE2d 808) (2020). “However, when reviewing a claim of cumulative prejudice,
we evaluate only the effects of matters determined to be error, not the cumulative
effect of non-errors.” (Citation and punctuation omitted.) Ash v. State, 312 Ga. 771,
796(6) (865 SE2d 150) (2021). Here, this Court has assumed for the purposes of the
analysis that Tolbert’s trial counsel was deficient for only a single reason (failing to
bifurcate the trial or stipulate to the prior felony conviction), and we concluded in
Division 10 that there was no evidence of prejudice. In addition, Tolbert has not
demonstrated that the trial court erred in any respect. Because Tolbert has failed to
show any other deficient conduct by his trial counsel or errors by the trial court, we
have no basis for evaluating cumulative error. See Ash, 312 Ga. at 797(6). Therefore,
this claim also fails.
21 17. As noted throughout this opinion, Tolbert’s brief is replete with references
to cases which do not support the contentions for which he cites them, including
occasions where the cases cited are actually contrary to his argument. We are
particularly concerned with his reliance on purported direct quotations presumably
drawn from our cases but which do not actually appear in those cases cited. We are
similarly troubled by Tolbert’s reliance on authority which has been expressly
overruled. Furthermore, we have found at least two occasions where his appellate
attorney Shelnutt cited to the record for direct quotations which do not appear in the
record. We find that Shelnutt’s lack of candor and failure to comply with the rules of
this Court have frustrated his client’s ability to appeal his convictions.
We make no factual findings here as to how or why Shelnutt provided
inappropriate authority to this Court, but we conclude that such misrepresentations
exist and this appeal is frivolous as a result. See Shahid v. Esaam, 376 Ga. App. 145,
149(2) (918 SE2d 198) (2025) (imposing a $2,500 frivolous appeal sanction where
appellant provided 11 “bogus” case citations out of 15 total). While the rules of this
Court do not authorize a monetary sanction in criminal cases, see Court of Appeals
Rule 7(e)(2), we are extremely concerned about the lack of candor demonstrated by
22 Shelnutt, especially when his conduct has frustrated his client’s ability to contest his
convictions in our Court. This is particularly true where Shelnutt’s client has waited
approximately 13 years to have his case reviewed in this Court. We expect better from
attorneys who practice before us.
It may be that some of the issues raised by this appeal have merit, but in this
case, Tolbert’s appellate counsel has failed to convey any such merit within the
framework established by Georgia law or the rules of this Court.6 Consequently, we
order Shelnutt to serve this opinion on his client. We also order Shelnutt to serve this
opinion on the General Counsel of the State Bar of Georgia for further investigation,
and, if necessary, disciplinary action. Shelnutt has ten days from the issuance of this
opinion to file a certificate of compliance in this Court. While Shelnutt does not
appear to have any other pending cases before our Court, if he has any future cases
docketed, he must endeavor to comport himself with our rules, as further violations
may subject him to contempt proceedings and jeopardize his authority to practice in
6 We note that despite our observations of Shelnutt’s misconduct in this case, this Court may not intervene to address whether such conduct is ineffective appellate counsel. See Wilson v. State, 286 Ga. 141, 144(4) (686 SE2d 104) (2009) (“[T]he only means by which [Tolbert] may pursue such a claim of ineffective appellate counsel is a habeas corpus proceeding.”) (citation and punctuation omitted). 23 this Court. See We Care Transp. v. Branch Banking and Trust Co., 335 Ga. App. 292,
298(3) (780 SE2d 782) (2015); Court of Appeals Rule 7(a). Additionally, within
twelve months of the date of this opinion or before Shelnutt files any further briefs or
motions in this Court — whichever occurs first — he must certify with the Clerk of
Court that he has completed at least three hours of continuing legal education focused
on brief writing.
Judgment affirmed. McFadden, P.J., and Pipkin, J., concur.