I was struck this week with an opinion of the Georgia Court of Appeals in what is probably a very rare scenario: where the defendant has already served his entire sentence but the Court exercises jurisdiction to hear the appeal anyway. I would be curious to know how often that happens. My guess is almost never. So the scenario grabbed my attention since it is probably so rare. And you might be asking “What’s the point?” if the defendant is already out of prison anyway. Well, the Court answers “what’s the point” succinctly by saying Justice is the point. Justice is the point.
The case I am talking about is Denson v. State, A19A2307, 2020 WL 255433 (Ga. Ct. App. Jan. 17, 2020), authored by Judge Yvette Miller and concurred by Judge Rickman and Judge Reese. I commend it to your reading. It is a doozy. In this criminal appeal, the trial court did not hear the convicted defendant’s motion for new trial (that had ben timely filed in 2007) until 9 years after it had been filed, and the Georgia Court of Appeals did not resolve the defendant’s direct appeal until 13 years after the original conviction of defendant and after the defendant had served his entire sentence. Wait. What?
That’s right. And the Georgia Court of Appeals made it clear it would ignore the mootness of the their review, since the Defendant had already served his unjustly imposed sentence, to issue a warning to Georgia trial courts of the grave injusctice they may be doing to otherwise innocent criminal defendants. Whew. Like I said, it’s a doozy.
Here are the facts: A police officer was patrolling a neighborhood in Walker County, Georgia, when he noticed a black pickup truck with a trailer that was sticking out of a driveway and blocking a lane of traffic. The officer approached the house to address the situation and saw two men outside. Once the officer made his presence known, one of the men ran to the back of the house and the other person identified himself as Bobby Henry. Henry told the officer that he had come to the house to sell a motor and that the truck belonged to his girlfriend. Finding the situation “odd,” the officer called for back-up and knocked on the front door. Ten minutes later, Robert Clifton, the owner of the house, answered the door and consented to a search of the house. The officers found Harold Green in a laundry room and Defendant Steven Marcus Denson, in the main bathroom. When the officer found Denson, Denson told the officer that he had spent the night and that he “did not know what was going on.” During the search of the house, the officers found multiple ingredients and paraphernalia commonly used to manufacture methamphetamine. The house smelled strongly of the same smell that is usually found in methamphetamine labs, and methamphetamine lab components were found in every room of the house except the bathroom where Denson was found. Methamphetamine was not being “actively cooked” at the time of the search, and the police officer who conducted the search testified that he was not certain as to how long ago anything had been made in the house.
A grand jury indicted Denson on one count of trafficking in methamphetamine by manufacture (OCGA § 16-13-31 (f)), one count of the distribution of a controlled substance (OCGA § 16-13-30 (b)), two counts of the purchase or possession of a controlled substance (OCGA § 16-13-30 (a)), and one count of possession of altered ephedrine (OCGA § 16-13-30.3 (d)). At trial, a jury convicted Denson of trafficking in methamphetamine but acquitted him of all other charges, and the trial court then sentenced Denson to ten years’ imprisonment. Denson timely filed a motion for new trial in June 2007. After a hearing on the motion in April 2016, 9 years after the motion was filed, the trial court denied the motion. The Georgia Court of Appeals reversed the trial court, agreeing with Defendant Denson there was insufficient evidence to support his conviction for the trafficking of methamphetamine because the evidence at most showed that he was merely present at the scene. Denson v. State, A19A2307, 2020 WL 255433, (Ga. Ct. App. Jan. 17, 2020). And yet Mr. Denson served his entire sentence, 10 years, when there never should have been a conviction in the first place.
The lack of evidence implicating Mr. Denson in any criminal wrongdoing at all was striking. The Court of Appeals detailed how thin the State’s case was against Mr. Denson. “We agree with Denson
that the evidence was insufficient to support his conviction because there is no evidence that Denson
shared the intent to traffic methamphetamine.
The evidence of the strong smell and the widespread drug paraphernalia in the house, while sufficient to show that a reasonable person might be aware of some sort of illegal venture being conducted in Clifton’s house, was not, in and of itself, sufficient to eliminate all reasonable doubt as to whether Denson
was a party to the crime of trafficking. See Ratana, supra, 297 Ga. App. at 749, 678 S.E.2d 193
. The circumstances of the situation simply do not present anything that we can point to that showed that Denson
shared with the codefendants the intent to manufacture methamphetamine or that would exclude the reasonable doubt that Denson
was simply an indifferent bystander. There is no evidence that Denson
benefitted financially from the venture, procured supplies, equipment, or knowledge for the venture, or otherwise participated in the manufacturing, marketing, or distribution of the methamphetamine. Moreover, the evidence in this case showed that the methamphetamine lab was not functioning at the time of the search, and there was no evidence presented that Denson
regularly spent time at Clifton’s house such that a jury could presume that he was present or participated when methamphetamine was being manufactured. Because the evidence presented showed nothing more than Denson
’s mere presence in Clifton’s house, at a time when methamphetamine was not being actively manufactured, we conclude that the evidence was insufficient to support Denson
’s conviction for trafficking in methamphetamine.”
And yet the State went forward with an indictment, the State went forward with a trial and the State secured a conviction (not surprising given how the law slants in favor of conviction in any criminal prosecution). Then, without any explanation or excuse, and certainly without apology, the trial court doesn’t hear Mr. Denson’s motion for a new trial until he has already served 9 years in prison for a crime of which he should not have been convicted. Is anyone besides me appalled yet?
At least the Georgia Court of Appeals carried through with hearing the appeal even though, technically, since Mr. Denson had already served his entire 10 years sentence, any opionion from the Court of Appeals would have no actual effect and might be considered “advisory” only. Most of the time (which, thankfully, is not often) an appellate court won’t hear a case that it’s opinion would be moot. But our Court of Appeals apparently felt so strongly about the injustice to which our system had subjected Mr. Denson to that the least it could do it go forward with an opinion in his case, the result of which, largely, exonerates Mr. Denson. I suppose when applying for a job now Mr. Denson may carry a copy of the opinion in Denson v. State with him to a job interview and say “See? This shows I shouldn’t have been guilty. I shouldn’t have a felony conviction on my record at all.” Maybe. About going ahead and deciding an obviously moot case, the Court of Appeals said “For reasons unknown to this Court, the trial court did not resolve Denson
’s motion for new trial (timely filed in 2007) in this run of the mill drug case until nine years after it was filed. Although the record indicates that Denson
has since finished serving his sentence, we nevertheless exercise our discretion to hear this appeal. See Clark v. State, 301 Ga. App. 354, 355, 687 S.E.2d 593 (2009)
(noting that we have the discretion to hear a criminal appeal even after the defendant has finished serving his sentence).”
The Georgia Court of Appeals, to its credit, takes the opportunity to admonish the trial court for ignoring Mr. Denson’s motion for 9 years and although it does not apologize outright to Mr. Denson, it acknowledges the very least he sholuld be able top do is to have the felony conviction expunged from his record. This is the last paragraph of it’s opinion: “We take the time to express grave concern about the severe delays that have resulted in our resolving this direct appeal in a run of the mill criminal case nearly thirteen years after Denson was originally convicted and sentenced, especially now that Denson has already finished serving his substantial prison sentence. The record in this case does not reveal to us the reason why this case languished in the trial court for almost ten years between Denson’s conviction and his direct appeal, but we lament that this case unfortunately serves as yet another example proving the legal maxim that “Justice delayed is justice denied.” Because Denson has already completed his sentence, we note that the law provides the remedy of restricting or correcting his criminal records upon petition with the county clerk. See Doe v. State, 347 Ga. App. 246, 252-256 (4), 819 S.E.2d 58 (2018) (discussing the options available under current law to restrict or correct criminal records).
Judgment reversed.” Denson v. State, A19A2307, 2020 WL 255433, (Ga. Ct. App. Jan. 17, 2020)(emphasis added).
Yes, I suppose Mr. Denson can get his record expunged, and he can carry a copy of this opinion around with him, but where does he go to get those 10 years of his life back? And if you are thinking as you read this tale of injustice this could never happen to you, think again.
Robin Frazer Clark is a trial lawyer who pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia, a Past President of Georgia Trial Lawyers Association, a Past President of the Lawyers Club of Atlanta and has practiced law in Georgia for 30 years. She is a member of the International Society of Barristers and of the American Board of Trial Advocates. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer.
Robin Frazer Clark ~ Dedicated to the Constitution’s Promise of Justice for All.