State v. Shoemaker

368 Ga.App. 188

889 S.E.2d 376

The STATE v. SHOEMAKER.

A23A0415

Court of Appeals of Georgia.

June 15, 2023

Deborah Gonzalez, District Attorney, Gerald L. Henderson, Assistant District Attorney, for Appellant.

Cook & Tolley, Edward Donald Tolley, Devin Hartness Smith, Athens, Edward Spencer Tolley, for Appellee.

Hodges, Judge.

In this appeal, the State asks us to decide whether a defendant, charged by accusation with a felony during the roughly one-year applicability of OCGA § 17-7-70.1 (a.1) (2021), must have been tried before subsection (a.1) was automatically repealed on June 30, 2022. The Superior Court of Athens-Clarke County determined that OCGA § 17-7-70.1 (a.1) did not allow defendants charged under its provisions to be tried after June 30, 2022, and dismissed a charge of possession of a firearm during the commission of a crime against Andrew Logan Shoemaker. For the following reasons, we reverse.

When questions of law are at issue, as here, we apply a de novo standard of review. See Jordan v. State , 322 Ga. App. 252, 255 (4) (a), 744 S.E.2d 447 (2013) (noting that "the phrase ‘plain legal error’ should not be used to designate the de novo standard of review"); State v. Brooks , 301 Ga. App. 355, 356, 687 S.E.2d 631 (2009). So viewed, the record shows that, following issuance of a May 6, 2022 arrest warrant, the State charged Shoemaker with one count each of possession of marijuana with intent to distribute ( OCGA § 16-13-30 (j) ) ("Count 2") and possession of a firearm during the commission of a felony ( OCGA § 16-11-106 ) ("Count 3") in a May 12, 2022 accusation. ¹ Shoemaker entered a plea of not guilty at his June 16, 2022 arraignment and moved to dismiss Count 3 on July 5, 2022, arguing that a violation of OCGA § 16-11-106 could only be charged by indictment.

Following a hearing, the trial court agreed and granted Shoemaker's motion to dismiss. In reaching its decision, the trial court concluded that: (1) OCGA § 17-7-70.1 (a) (1) does not include possession of a firearm during the commission of a felony among the crimes that may be charged by accusation; (2) even though OCGA § 17-7-70.1 (a) allowed "the State ... to accuse ... Shoemaker of an offense ordinarily done by indictment," the State did not try Shoemaker in violation of the statutory mandate that defendants "shall be tried;" and (3) OCGA § 17-7-70.1 (a.1) (2021) did not include a saving clause that would allow defendants accused before the June 30, 2022 repealer to be tried after that date. The State appeals pursuant to OCGA § 5-7-1 (a) (1). ²

In a single enumeration of error, the State contends that the trial court erred by "interpreting [ OCGA § 17-7-70.1 (a.1) (2021)] in service to a nonexistent ‘constitutional right.’ " ³ We agree that the trial court erred, and will address each segment of the State's argument in turn.

In construing the statutes at issue here, we are guided by the following rules of construction:

The ordinary signification shall be applied to all words. Where the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly. Criminal statutes are construed strictly against the State, they must be read according to the natural and obvious import of their language, and their operation should not be limited or extended by application of subtle and forced interpretations.

(Citation and punctuation omitted.) Flakes v. State , 365 Ga. App. 97, 98 (a), 877 S.E.2d 635 (2022). Furthermore, we must avoid "a statutory construction that will render some of the statutory language mere surplusage[.]" Kennedy v. Carlton , 294 Ga. 576, 578 (2), 757 S.E.2d 46 (2014). "Finally, in construing the statute so as to give effect to the legislative intent a mere segment of the statute should not be lifted out of context and construed without consideration of all the other parts of the statute." City of Jesup v. Bennett , 226 Ga. 606, 609 (2), 176 S.E.2d 81 (1970).

(a) Pre-2021 OCGA § 17-7-70.1 (a) (2016). OCGA § 17-7-70.1 (a) (1) provided that "the district attorney shall have authority to prefer accusations, and ... defendants shall be tried on such accusations according to the same rules of substantive and procedural laws relating to defendants who have been indicted by a grand jury[,]" if the defendant is charged with certain felony crimes and either (1) has been "bound over to the superior court based on a finding of probable cause pursuant to a commitment hearing"; or (2) has "expressly or by operation of law waived a commitment hearing[.]" OCGA § 17-7-70.1 (a) (1) (A)-(E) (2016) listed the felony cases which were subject to this provision, primarily including crimes of theft, forgery, escape, and possession of a firearm by a convicted felon. ⁴

(b) Addition of OCGA § 17-7-70.1 (a.1) (2021). Relevant to this case, however, the General Assembly added subsection (a.1), which became effective on May 4, 2021, to OCGA § 17-7-70.1 and provided:

Notwithstanding any other law to the contrary , the district attorney shall have authority to prefer accusations, and the accused shall be tried on such accusations according to the same rules of substantive and procedural laws relating to defendants who have been indicted by a grand jury for any felony, other than a serious violent felony , in which an accused has:

(A) Been bound over to the superior court based on a finding of probable cause pursuant to a commitment hearing under Article 2 of this chapter;

(B) Expressly or by operation of law waived a commitment hearing;

(C) Been released on bond pending a commitment hearing; or

(D) Been confined in jail for at least 45 days since his or her arrest, unless such time frame has been waived in writing by the accused.

(Emphasis supplied.) OCGA § 17-7-70.1 (a.1) (2) (2021). By its own terms, subsection (a.1) was repealed on June 30, 2022. See OCGA § 17-7-70.1 (a.1) (4) (2021). ⁵

(c) Post-2022 OCGA § 17-7-70.1 (a) (2023). Following the automatic repealer of OCGA § 17-7-70.1 (a.1) (2021), OCGA § 17-7-70.1 (a) remained in effect and again listed a series of felony cases — which did not include possession of a firearm during the commission of a crime — in which a district attorney could charge a defendant by accusation.

(d) Analysis. With this backdrop in mind, application of these statutes to the present case is relatively straightforward.

(i) District Attorney's Authority to Charge Shoemaker by Accusation with a Felony. Prior to May 4, 2021, the State could not have charged Shoemaker by accusation with possession of a firearm during the commission of a crime, as it was not among the category of felony cases for which, under certain circumstances, "the district attorney shall have authority to prefer accusations[.]" See OCGA § 17-7-70.1 (a) (1) (A)-(E) (2016).

After OCGA § 17-7-70.1 (a.1) became effective on May 4, 2021, however, the listing of felony cases was no longer singularly controlling as, "[ n ] otwithstanding any other law to the contrary ," district attorneys were granted limited "authority to prefer accusations, and the accused shall be tried on such accusations according to the same rules of substantive and procedural laws relating to defendants who have been indicted by a grand jury for any felony , other than a serious violent felony" if certain criteria are present, including when an accused has "[e]xpressly or by operation of law waived a commitment hearing[.]" (Emphasis supplied.)

OCGA § 17-7-70.1 (a.1) (2), (2) (B) (2021). Once OCGA § 17-7-70.1 (a.1) (2021) was repealed effective June 30, 2022, OCGA § 17-7-70.1 (a) remained and included the listing of felony cases for which a district attorney could charge a defendant by accusation, rather than the more permissive "any felony" codified in OCGA § 17-7-70.1 (a.1) (2021).

At the outset, then, OCGA § 17-7-70.1 (a.1) (2021) clearly authorized the district attorney to charge Shoemaker with a felony by accusation at any point between May 4, 2021 and June 30, 2022. ⁶ Accordingly, the trial court erred in concluding that the district attorney could not charge Shoemaker with a felony by accusation because possession of a firearm during the commission of a crime "is excluded from [ OCGA § 17-7-70.1 (a) (1) (A)-(E) (2016)]."

(ii) Necessity of Trial Prior to June 30, 2022. Once the district attorney's charging decision was issued pursuant to OCGA § 17-7-70.1 (a.1) (2021), and Shoemaker entered a plea of not guilty, Georgia law provided that Shoemaker "shall be tried on such accusation[ ] according to the same rules of substantive and procedural laws relating to defendants who have been indicted by a grand jury...." OCGA § 17-7-70.1 (a.1) (2) (2021); see also OCGA § 17-7-70.1 (same) ; OCGA § 17-7-70.1 (2016) (same). As a result, through its multiple iterations over the past few years, this provision of OCGA § 17-7-70.1 has remained constant.

One such rule "of substantive and procedural" law provides that "[i]n those cases in which a plea of not guilty is entered, the court shall set the case down for trial at such time as shall be determined by the court." OCGA § 17-7-91 (b). Absent a speedy trial demand or other intervening factor, then, trial courts are afforded significant latitude in scheduling trials, as there are no deadlines or other prescribed dates by which a trial must occur. That being so, whether a defendant was charged with a felony by accusation pursuant to: (1) OCGA § 17-7-70.1 (a) on May 3, 2021; (2) OCGA § 17-7-70.1 (a.1) on May 16, 2022 (the date of Shoemaker's accusation); or (3) OCGA § 17-7-70.1 (a) on July 1, 2022 is irrelevant — in each case, the defendant must be "tried ... according to the same rules of substantive and procedural laws relating to defendants who have been indicted by a grand jury[,]" including that the trial court, upon the defendant's entry of a not guilty plea, "shall set the case down for trial at such time as shall be determined by the court."

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