Buckner-Webb v. State

360 Ga.App. 329

861 S.E.2d 181

BUCKNER-WEBB et al.

v.The STATE.

A21A0282

Court of Appeals of Georgia.

June 29, 2021

Stephen Randall Scarborough, Atlanta, for Appellant.

Fani T. Willis, Paul Howard, Kevin Christopher Armstrong, Atlanta, for Appellee.

Rickman, Presiding Judge.

Following Diane Buckner-Webb, Theresia Copeland, Sharon Davis-Williams, Tabeeka Jordan, Micheal Pitts, and Shani Robinson's convictions for conspiracy to violate the Georgia RICO (Racketeer Influenced and Corrupt Organizations) Act, OCGA § 16-14-1 et seq., and other crimes, an attorney was appointed to represent all six of them for their pending motions for new trial. That attorney subsequently filed a motion to withdraw as counsel for the six appellants due to alleged conflicts of interest. After a hearing, the trial court denied counsel's motion to withdraw, but issued a certificate of immediate review and the appellants filed an application in this Court for interlocutory review.

When their application for interlocutory review was denied and their subsequent petition for certiorari was also denied, the appellants claimed that the trial court's order fell within the very small class of interlocutory rulings that are deemed to be final under the collateral order doctrine. Under the collateral order doctrine, an order that does not resolve the entire case in the trial court may be appealed immediately if it "(1) resolves an issue that is ‘substantially separate’ from the basic issues to be decided at trial, (2) would result in the loss of an important right if review had to await final judgment, and (3) completely and conclusively decides the issue on appeal such that nothing in the underlying action can affect it." (Citation and punctuation omitted.) Duke v. State , 306 Ga. 171, 174 (1), 829 S.E.2d 348 (2019). The appellants’ argument fails because the order at issue does not satisfy the second requirement of the collateral order test; that is, the appellants would not lose an important right if appellate review must await final judgment.

In Georgia, the collateral order doctrine has never been applied to authorize a direct appeal from a denial of a motion to withdraw as counsel in a criminal case based on an alleged conflict of interest. The Georgia Supreme Court has recognized that pursuant to the collateral order doctrine, "a very small class of interlocutory rulings are effectively final in that they finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." (Citation and punctuation omitted.) Duke , 306 Ga. at 172-73 (1), 829 S.E.2d 348. "Thus, an order that satisfies the requirements of the collateral order doctrine is considered to be effectively final and would be appealable because it comes within the terms of a relevant statutory right to appeal final judgments, namely the right prescribed in OCGA § 5-6-34 (a) (1)." (Citation and punctuation omitted.) Id. at 173 (1), 829 S.E.2d 348.

Here, the appellants have already been convicted and the motion to withdraw at issue solely concerns their motion for new trial. Should the appellants’ motion for new trial be denied they have a right to a direct appeal from that denial. And should this Court determine on appeal that the trial court erred by denying counsel's motion to withdraw then the appellants may be entitled to a new hearing on their motion for new trial. Regardless, appellants will have an avenue to appeal this decision and no important right will be lost by waiting until the proper time for a direct appeal. In their motion to withdraw, the appellants acknowledge this remedy by stating that "[i]f the [trial court] were to require [appellants] to proceed with joint representation, despite their decisions not to waive an actual conflict, the remedy would be redo any proceeding that was affected by the conflict."

In Duke v. State , Duke argued that the trial court's order denying his pre-trial motions seeking public funding for expert witnesses and investigators was subject to the collateral order doctrine.¹ Duke , 306 Ga. at 171, 174 (1), 829 S.E.2d 348 (emphasis supplied). The Georgia Supreme Court held that the trial court's order at issue was not a collateral order because,

Duke has acknowledged that his opportunity for appellate review of the order will not be lost if his appeal must await final judgment. Indeed, in his application before this Court, Duke argued that, should he be found guilty, the jury's verdict would likely be set aside on appeal given the importance of expert assistance to the presentation of his defense. Thus, he will not be left without a remedy in the absence of immediate review of the trial court's order by this Court.

Id.

Because the appellants in this case are not left without a future remedy the trial court's order denying defense counsel's motion to withdraw is not a collateral order and this appeal is dismissed. See Duke , 306 Ga. at 174 (1), 829 S.E.2d 348 ; see generally Rivera v. Washington , 298 Ga. 770, 777-778, 784 S.E.2d 775 (2016) (Georgia Supreme Court recognized that the collateral order doctrine applies to a very small class of interlocutory rulings and held that the doctrine did not apply to the trial courts’ orders denying appellants’ motions to dismiss on immunity grounds).

Appeal dismissed.

Dillard, P.J., Mercier, Brown, Pipkin and Colvin, JJ, and Senior Appellate Judge Herbert E. Phipps concur. Gobeil and Hodges, JJ., concur fully and specially. McFadden, C.J., dissents. Doyle, P.J., concurs in judgment only in Division 2, joins with McFadden, C.J., in the dissent to Divisions 1 and 3, and writes specially as to Division 3. Barnes, P.J., Miller, P.J., and Reese, J. join with Chief Judge McFadden's dissent and Presiding Judge Doyle's special dissent. Markle, J. is disqualified.

Gobeil, Judge, concurring fully and specially.

Though the question is close, I am persuaded that the bar for applying the collateral order doctrine in Georgia is a high one, and the doctrine does not apply here given the facts and procedural posture of the decision before us. Accordingly, I concur in the Majority's dismissal of the appeal.

The dissent disagrees with the Majority's application of the collateral order doctrine. And though the issue before us on appeal is a jurisdictional one, the dissent goes on to expound on the merits of the underlying motion to withdraw. In doing so, the dissent raises compelling concerns in the abstract, but it does not focus sufficiently on the facts and circumstances of the case at hand.

Accordingly, and although the underlying merits are beyond the scope of this special concurrence, I feel compelled to highlight a few points. This Court evaluates a trial court's denial of a motion to withdraw under an abuse of discretion standard. See Odum v. State , 283 Ga. App. 291, 292, 641 S.E.2d 279 (2007). Here, the trial court considered the motion and in an in camera hearing, assessed the alleged conflicts, and found nothing to warrant granting the motion.

I am authorized to state that Judge Ken Hodges joins me in concurring fully and specially.

Mcfadden, Chief Judge, dissenting.

This appeal is properly before us under the collateral order doctrine. The issue is one of first impression in Georgia. But nearly all the courts that have decided the issue, federal and state, have held that orders denying an attorney's request to withdraw fall within the collateral order doctrine. Once a court compels an attorney to violate ethical obligations, the harm is done.

As to the merits of the appeal, the trial judge abused his discretion in denying counsel's motion to withdraw because counsel cannot ethically represent all six defendants due to conflicts of interest. So I respectfully dissent.

1. Facts and procedural posture.

The state indicted 35 Atlanta Public School employees for conspiracy to violate the Georgia RICO Act and other offenses arising out of alleged cheating on standardized tests. Of those indicted, twelve were convicted. The jury found one of the defendants not guilty of any charges, found the other eleven defendants guilty of conspiracy to violate the RICO Act, and found some of those defendants guilty of additional offenses. The trial court imposed various sentences of confinement.

Each of those defendants were represented by separate counsel at trial. After the trial, an attorney was appointed through the public defender's office to jointly represent six of the defendants who were indigent and whose trial attorneys had already filed separate motions for new trial.

Upon reviewing the record, the attorney appointed through the public defender's office concluded that his clients’ interests were in conflict: that his duties to his several clients would "materially and adversely affect the representation of" one another. See Rule 1.7 (a) of the Georgia Rules of Professional Conduct found at State Bar Rule 4-102. He then advised his clients of his conclusion. They all indicated that, even if waiver of the conflict were permissible, they would not agree to waive it. See Id., Rule 1.7 (b).

The attorney then filed a motion to withdraw as counsel for those six defendants due to conflicts of interest. After a hearing, the trial court denied counsel's motion to withdraw, but issued a certificate of immediate review. The defendants filed an application for interlocutory review, which was denied. They also filed this direct appeal, invoking the collateral order doctrine.

2. Applicability of the collateral order doctrine.

The majority finds that we lack jurisdiction because the collateral order doctrine does not apply to the trial court's interlocutory order denying counsel's motion to withdraw. I disagree.

[T]he collateral order doctrine recognizes that a very small class of interlocutory rulings are effectively final in that they finally

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