Treshia Vernetta Dave v. StateTreshia Vernetta Dave v. State
After pleading guilty to a felony, Treshia Vernetta Dave was referred to a mental health accountability court program in the superior court. The superior court subsequently terminated her participation in the program, entered a judgment of conviction, and imposed a sentence that included a term of confinement. Before taking those actions, the superior court held a hearing that neither Dave nor her plea counsel attended. Among other things, Dave argues that her right to due process was violated because she was not given notice of that hearing. We agree and find that this was reversible error. So we do not reach Dave‘s other arguments.
1. Procedural history.
The record shows that on November 6, 2019, Dave, while represented by counsel,
On February 18, 2021, Dave‘s mental health court case manager filed with the superior court a “Notice of Team Decision to Seek Termination.” That filing alleged that Dave had violated numerous conditions of her mental health court participation, including “absconding from [mental health court] supervision[.]” It set a time and place for a superior court hearing on the issue of terminating Dave from the mental health court program. And it stated that the notice had been mailed to Dave, return receipt requested, at her last known address. This filing did not indicate that it had been served on Dave‘s plea counsel.
The termination hearing occurred on February 25, 2021. Neither Dave nor her plea counsel attended, and Dave‘s case manager informed the superior court that the notice mailed to Dave had been returned as undeliverable. At the hearing, the state presented evidence that Dave had violated several conditions of her mental health court contract.
On March 1, 2021, the superior court issued an order terminating Dave from the program. Among other things, the superior court stated in the order that Dave was not represented by counsel and acknowledged that the notice mailed to her had been returned as undeliverable. The superior court found that the state had proved the alleged program violations. The superior court noted that she “[did] not always terminate from the program” but that she was terminating Dave‘s participation based on her violations and on the fact that Dave had “absconded from the program” and “had not shown up for the hearing for which she has had notice[.]” On March 5, 2021, the superior court entered a judgment of conviction and imposed upon Dave a five-year sentence, with two years served in confinement. Dave filed a notice of appeal on March 31, 2021, represented by new counsel. The next day, a notice was filed with the superior court substituting Dave‘s new counsel for her plea counsel.
On appeal, Dave argues that her constitutional rights were violated in several respects. The state asserts in response that the case presents issues of first impression. We transferred this appeal to our Supreme Court for that Court to determine whether to exercise jurisdiction over the case. The Supreme Court returned the case to us after concluding that Dave‘s arguments “do not involve a novel construction of any constitutional provision” and “require the mere application of well settled constitutional principles to the facts of her case[.]”
2. Mental health courts under OCGA § 15-1-16 .
Under
In this case, the superior court referred Dave to the mental health court “[p]rior to the entry of the sentence[.]”
The appellate record does not specify the condition that qualified Dave for referral to the mental health court. Although Dave describes her qualifying condition in her appellate brief, “[w]e cannot consider facts asserted in briefs that are not a part of the record before us.” Wachovia Ins. Svcs. v. Fallon, 299 Ga. App. 440, 446 (3) (a) n. 3 (682 SE2d 657) (2009).
But to qualify, Dave was required to have a mental illness, a developmental disability, or a mental illness co-occurring with a substance abuse disorder.
a severe, chronic disability of an individual that: (A) Is attributable to a significant intellectual disability, or any combination of a significant intellectual disability and physical impairments; (B) Is manifested before the individual attains age 22; (C) Is likely to continue indefinitely; (D)
Results in substantial functional limitations in three or more of the following areas of major life activities: (i) Self-care; (ii) Receptive and expressive language; (iii) Learning; (iv) Mobility; (v) Self-direction; and (vi) Capacity for independent living; and (E) Reflects the person‘s need for a combination and sequence of special, interdisciplinary, or generic services, individualized supports, or other forms of assistance which are of lifelong or extended duration and are individually planned and coordinated.
Under the statute, “[e]ach mental health court division shall establish written criteria that define the successful completion of the mental health court division program.”
The statute also contemplates that a participant may be terminated from a mental health court program. See
3. Due process rights to notice of and an opportunity to be heard at the termination hearing.
Dave argues that we should reverse the termination order, judgment of conviction, and sentence because the superior court violated her right to due process by terminating her participation in the mental health court program without providing her with sufficient notice of the hearing and an opportunity to be heard on the state‘s termination petition. We agree.
In accordance with
“The United States Supreme Court has recognized that ‘the loss of liberty entailed by a probation revocation proceeding is a serious deprivation requiring that the probationer be accorded due process.’ Gagnon v. Scarpelli, 411 U. S. 778, 781 (II) (93 SCt 1756, 36 LE2d 656) (1973).” Meadows v. Settles, 274 Ga. 858, 860 (3)
(561 SE2d 105) (2002) (punctuation and footnote omitted). “[T]he requirements of due process are flexible and call for such procedural protections as the particular situation demands.” State v. Huffman, 351 Ga. App. 853, 855 (833 SE2d 552) (2019) (citations and punctuation omitted). A defendant must have notice and an opportunity to be heard on the issue of probation revocation, Johnson v. Boyington, 273 Ga. 420, 421 (541 SE2d 355) (2001), and “any such hearing must comport with principles of fundamental fairness.” Meadows, supra (citation and punctuation omitted). To be sufficient, the notice of the hearing must, among other things, inform the defendant of the time and place of the probation revocation hearing. Ponder v. State, 341 Ga. App. 276, 278 (1) (800 SE2d 19) (2017). We apply these due process principles here, reviewing de novo the question of whether the proceeding accorded Dave due process. See Huffman, 351 Ga. App. at 854.
The termination of Dave‘s participation in the mental health court program resulted in her loss of liberty; she was sentenced to a term that included confinement. So Dave had a right to due process of law with regard to the hearing that included, at the least, the right to notice of the time and place of the termination hearing. Meadows, 274 Ga. at 860 (3); Ponder, 341 Ga. App. at 278 (1).
Although there is no evidence that Dave received actual notice of the hearing, the state argues that Dave was properly served with written notice because it was mailed to her last known address. But Dave was represented by counsel. We do not decide whether this would have been sufficient notice if she had been pro se. It was insufficient because the law required that the notice be served on Dave‘s counsel, which did not occur.
Our rules of both criminal and civil procedure require that service of written notice be made upon a party‘s attorney. In criminal proceedings, “every written notice . . . shall be served upon each party[,]”
The state argues that plea counsel‘s representation ended when Dave entered her guilty plea and was referred to the mental health court program. But the state does not cite, and we have not found, any authority providing that counsel‘s representation of a criminal defendant ends when the trial court refers that person to an accountability court but does not enter a judgment of conviction and sentence. Generally, where no judgment of conviction and sentence has been entered, counsel remains counsel of record until the trial court enters an order permitting withdrawal or substitute counsel enters an appearance. See Dos Santos v. State, 307 Ga. 151, 154 (3) (834 SE2d 733) (2019); Tolbert v. Toole, 296 Ga. 357, 362 (3) (767 SE2d 24) (2014).
Both the state and Dave, in their appellate briefs, discuss the rule set forth in White v. State, 302 Ga. 315 (806 SE2d 489) (2017), which provides that, “at a minimum, legal representation continues — unless interrupted by entry of an order allowing counsel to withdraw or compliance with the requirements for substitution of counsel — through the end of the term at which a trial court enters a judgment of conviction and sentence on a guilty plea[.]” Id. at 319 (2) (citation omitted). This rule has no application here, where the question is whether Dave had counsel at a time before the trial court entered a judgment of conviction and sentence.
For these reasons we conclude that, under the circumstances of this case, plea counsel still represented Dave at the time of the termination hearing and that due process required that Dave‘s counsel be served with notice of the time and place of the termination hearing in accordance with our rules of criminal (and civil) procedure. Because Dave‘s counsel was not served with such notice, Dave‘s due process rights were violated.
To the extent the state argues that Dave waived her due process rights related to the hearing by, in the state‘s terms, “absconding” from the mental health court‘s supervision, we are not persuaded. A criminal defendant must knowingly waive the right to notice, see Hughes v. Hinks, 349 Ga. 416, 417 (291 SE2d 545) (1982) (holding that a probation revocation proceeding conducted without notice to the probationer violates due process unless the probationer has knowingly waived the right to notice), and nothing in the record shows that Dave knowingly waived that right. Compare Andrews v. State, 276 Ga. App. 428, 432-433 (3) (623 SE2d 247) (2005) (holding that a criminal defendant waived a claim of insufficient notice of a hearing because he was nevertheless present at the hearing, where he failed to object). We decline to view Dave‘s alleged failure to comply the mental health court program requirements as a knowing
And we do not find that the due process violation was harmless. Dave was not notified of the time and place of the termination hearing, and so she had no opportunity to explain her alleged failure to comply with the mental health court program requirements or make any arguments in mitigation based on her mental health condition. From the superior court‘s statement in her order that she “[did] not always terminate from the program,” it appears that, in an appropriate case, the trial court could be persuaded not to terminate a defendant‘s participation in a mental health court program merely because of noncompliance.
In conclusion, we find that it was fundamentally unfair for the superior court to terminate Dave‘s participation in the mental health court program without giving Dave notice of the termination hearing and an opportunity to be heard on this issue. “Fundamental fairness is the touchstone of due process. . . . [It] is is clear that the Fourteenth Amendment due process provisions contemplate that [the termination] hearing . . . comport with principles of fundamental fairness.” Meadows, 274 Ga. at 860 (3) (citations and punctuation omitted) (citations and punctuation omitted). Because it did not, we reverse the superior court‘s decision to terminate Dave‘s participation in the mental health court program, as well as the judgment of conviction and sentence predicated on her termination from the program.
4. Other constitutional claims.
Given this disposition, we do not address the other alleged constitutional violations that Dave asserts in this appeal.
Judgment reversed. Gobeil and Land, JJ., concur.