Georgia Court of Appeals Reports

PATEL v. STATE, A07A0329. (Ga.App. 12-15-2006) PATEL v. THE
STATE. A07A0329. Court of Appeals of Georgia. December
15, 2006.

BLACKBURN, Presiding Judge.

Following his nolo contendere plea to a charge of family
violence battery, Viren Patel (represented by counsel)
moved to withdraw his plea, which motion the court denied.
He appeals pro se, contending that the court erred in (i)
denying his petition for court-appointed appellate counsel,
(ii) imposing a special condition on his pre-trial bond
that precluded him from contacting the victim, (iii)
revoking his bond for contacting the victim, (iv) denying
his motion to set aside this revocation, (v) denying his
motion to withdraw his nolo plea and his subsequent motion
to reconsider this denial, and (vi) denying his motion to
transfer venue. Discerning no error, we affirm.

The undisputed evidence shows that Patel was arrested and
charged with one count of family violence battery and two
counts of simple battery arising out of an alleged violent
encounter with his wife. He was released from jail on a
cash bond with the special condition that he “stay away
absolutely, directly or indirectly, by person, telephone,
messenger or any other means of communication from [his
wife].” He acknowledged that “upon a violation of any of
these special conditions, my bond may be revoked.”

Alleging that Patel violated this special condition by
accompanying his wife to court to have her dismiss a
separate temporary protective order against him, the State
moved the court to revoke the bond. Following an
evidentiary hearing at which Patel was represented by
counsel, the court revoked the bond. Two weeks later, Patel
(with advice of counsel) negotiated with the State and
decided to plead nolo contendere to the family violence
battery charge; he was sentenced to thirty days
imprisonment plus eleven months probation. Conditions of
probation included 20 days of community service plus no
violent contact with his wife.

Obtaining a new attorney, Patel timely moved to withdraw
his nolo plea, claiming that he was coerced into making the
plea and that his sentence was greater than that
negotiated. Following another evidentiary hearing, the
court denied this motion and later denied a motion to
reconsider this ruling. The court further denied Patel’s
motion to transfer venue and his motion to set aside the
order revoking bond. Filing an affidavit of indigence,
Patel moved the court to appoint appellate counsel for him.
Based on evidence presented at a third hearing, the court
found Patel’s testimony of indigence incredible and denied
the appointment of appellate counsel. Patel appeals pro se.

1. In his first enumeration of error, Patel argues that the
court erred in denying his indigent application for
court-appointed appellate counsel. As held in McQueen v.
State,[fn1] “‘[t]he determination of indigency calls for
the exercise of discretion based upon consideration of
relevant criteria of indigency.'” Here, Patel completed a
form application for appointed counsel in which he listed
his income, liabilities, and assets. See USCR Rules 29.2;
29.3 (D). The court then held an evidentiary hearing, at
which Patel testified as to his alleged indigency. Finding
Patel’s testimony “neither credible nor believable,” the
court denied his application.

In 1987, the Georgia Supreme Court held that “the court’s
judgment in regard to appellant’s indigency is not subject
to review.” Penland v. State.[fn2] Since then, our Court
has repeatedly confirmed that on appeal “[w]e will not look
behind the court’s determination of indigence.” McQueen,
supra, 240 Ga. App. at 16. See, e.g., Schlau v. State[fn3]
(“whether a defendant is indigent, and entitled to have
counsel appointed to pursue an appeal, lies within the
discretion of the trial court, and this determination is
not subject to review”) (punctuation omitted); Lopez v.
State[fn4] (“[a] trial court’s determination regarding a
defendant’s indigent status is not subject to review”);
Barrett v. State.[fn5] Accordingly, we do not review the
trial court’s findings as to Patel’s indigency.

“Review of a trial court’s procedure in making decisions as
to appointed appellate counsel, however, is authorized.”
(Punctuation omitted.) Schlau, supra, 261 Ga. App. at 305
(2). As the trial court here conducted an evidentiary
hearing at which Patel was allowed to present his evidence
of and arguments regarding indigency, we discern no error
in the procedure followed.

Finally, we note that in arguing this enumeration, Patel
makes numerous irrelevant assertions, including that his
first trial counsel betrayed him, that he filed a judicial
complaint against the trial judge, and that another trial
judge found he was indigent in an unrelated civil case.
Beyond their irrelevance, none of these assertions is
supported by any citations to evidence in the record, nor
have we found any supporting evidence.

2. Patel’s second enumeration claims that the trial court
lacked the authority to impose the special bond condition
that Patel have no contact with his wife. For offenses
involving an act of family violence, OCGA § 17-6-1
(f) (2) expressly authorizes special bond conditions that
the accused “hav[e] no contact of any kind or character with
the victim.” Even without this express statutory
authorization, Clarke v. State[fn6] held that the trial
court has inherent authority to impose such conditions when
the defendant is charged with a violent crime against a
specific victim. This enumeration must fail.

3. Patel’s third enumeration charges that the trial court
erred in revoking his pre-trial bond. However, since Patel
subsequently entered a nolo plea and is now free on
supersedeas bond , this issue is moot, particularly since
we affirm in Division 4 below the court’s judgment denying
the withdrawal of that plea. See generally McLendon v.

Moreover, even if the issue were not moot, Patel’s argument
that no evidence supported the court’s order revoking the
bond fails. The bond’s special condition mandated that
Patel “stay away absolutely, directly or indirectly, by
person, telephone, messenger or any other means of
communication from [his wife].” At the hearing on the bond
revocation, one witness testified that Patel admitted (i)
he had been communicating with his wife through a mutual
friend and (ii) he met with his wife at the courthouse to
have her withdraw a temporary protective order against him.
Another witness testified that she saw Patel in the clerk’s
office with his wife and that he sat directly behind her in
the courtroom. Thus, some evidence supported the trial
court’s finding that Patel had violated the special bond
condition, which justified the revocation of the bond. See
Clarke, supra, 228 Ga. App. at 222 (2) (“the trial court .
. . has the authority to revoke the bond if, following a
hearing, the trial court determines that the defendant
violated those conditions”).

Patel complains that the trial court admitted certain
hearsay testimony during the bond revocation hearing.
However, even assuming that such evidence were inadmissible
hearsay, we note that in hearings where the trial judge is
the finder of fact, “there is a presumption, in the absence
of a strong showing to the contrary, that the trial judge
sifts the wheat from the chaff, ignoring illegal evidence
and considering only legal evidence.” (Punctuation
omitted.) Allen v. State.[fn8] As no showing to the
contrary was made here, we must affirm. See King v.

In his argument on this enumeration, Patel also alleges
that the trial court erred in denying his pro se motion to
continue the bond revocation hearing.[fn10] However, this
ruling was not enumerated as error in any of Patel’s
enumerations of error. Therefore, “the arguments in his
brief that a [continuance] should have been granted are not
before us. See Fuller v. State[fn11] (‘an appealing party
may not use its brief to expand its enumeration of errors
by arguing the incorrectness of a trial court ruling not
mentioned in the enumerations of errors’).” (Punctuation
omitted.) Bowden v. State.[fn12]

Because the issue is moot and because in any case the court
did not err in revoking the bond, Patel’s third enumeration
of error fails. For the same reasons, his seventh
enumeration of error that the court erred in denying his
motion to set aside the bond revocation order is also
without merit.

4. In his fourth enumeration of error, Patel contends that
the court erred in denying his motion to withdraw his nolo
plea after sentence was pronounced. “Prior to pronouncement
of sentence, a defendant is entitled, as a matter of right,
to withdraw a plea of guilty. After pronouncement of
sentence, the motion to withdraw rests in the sound
discretion of the trial court. A plea of nolo contendere
stands on the same footing as a plea of guilty.” (Citations
omitted.) Marshall v. State.[fn13]

In his motion to withdraw, Patel claimed that his nolo plea
was not made voluntarily, knowingly, and intelligently.
“When a defendant challenges the validity of his guilty
plea, the [S]tate bears the burden of showing that the plea
was made voluntarily, knowingly and intelligently.”
Williams v. State.[fn14] To meet this burden, the State may
pursue either or both of two avenues: (1) show on the record
of the guilty plea hearing that the defendant was cognizant
of all the rights he was waiving and the possible
consequences of his plea; or (2) fill a silent record by
use of extrinsic evidence that affirmatively shows that the
guilty plea was knowing and voluntary. Id.

Here, the State did both. The State presented a document
from the plea hearing, in which document Patel acknowledged
the charges and potential punishment and further
acknowledged that by entering his nolo plea, he was waiving
his rights to a trial by jury, to the presumption of
innocence, to confront witnesses against him, to subpoena
witnesses, to testify and to offer other evidence to
assistance of counsel during trial and other stages, not to
incriminate himself, and to appeal an adverse judgment
against him. The State showed that during the plea hearing,
the court recessed to give Patel another opportunity to
discuss these matters with his counsel. At the
motion-to-withdraw hearing, the State put Patel’s trial
counsel on the stand, who testified that he had repeatedly
discussed these rights and other strategic matters with
Patel in detail before Patel decided to enter the nolo
plea. The State showed that the court at the plea hearing
expressly found that Patel understood the nature of the
charges and consequences; that no promises, force or
threats were used to obtain the plea; and that Patel
knowingly, freely, and voluntarily entered the plea.

To contradict Patel’s claims, the State further presented
evidence that prior to the plea, the State did not cause
him to hunger while in jail nor did the sentence entered by
the court differ from that negotiated by Patel. Indeed, the
record of the plea hearing shows that the sentence was
expressly acquiesced in by Patel’s counsel, with no
objection from Patel. See Powell v. State.[fn15] The court
was authorized to reject Patel’s self-serving testimony and
to find that he entered the plea knowingly, intelligently,
and voluntarily. See Williams, supra, 279 Ga. App. at 390.

Patel urges that his incarceration leading up to the plea
hearing coerced him into entering the plea, since he needed
to get out of jail to visit an ill daughter. Such claims
did not trump the authority of the court to find that based
on the evidence before it, Patel entered the plea freely
and voluntarily. See Hirjee v. State.[fn16]

Based on the above analysis, the trial court did not err in
denying the motion to withdraw the nolo plea (enumeration
of error number four) nor in denying the motion for
reconsideration of that ruling (enumeration of error number

5. In his fifth enumeration of error, Patel argues that the
court erred in denying his motion to transfer venue that
was based on his allegation that he had filed a judicial
complaint against the trial judge and that therefore the
trial judge and all judges in the county would be biased
against him. This motion, which was in effect a motion to
recuse, was unsupported by any affidavit or other evidence
showing that indeed a judicial complaint had been filed or
that the judge was biased or prejudiced against him. See
Gould v. State.[fn17] Accordingly, the court did not err in
denying the motion. Id.

Judgment affirmed. Ruffin, C. J., and Bernes, J., concur.

[fn1] McQueen v. State, 240 Ga. App. 15, 16 (522 SE2d 512)

[fn2] Penland v. State, 256 Ga. 641, 642 (352 SE2d 385)

[fn3] Schlau v. State, 261 Ga. App. 303, 305 (2) (582 SE2d
243) (2003).

[fn4] Lopez v. State, 259 Ga. App. 720, 723 (4) (578 SE2d
304) (2003).

[fn5] Barrett v. State, 192 Ga. App. 705, 707 (6) (385 SE2d
785) (1989).

[fn6] Clarke v. State, 228 Ga. App. 219, 220 (1) (491 SE2d
450) (1997).

[fn7] McLendon v. State, 123 Ga. App. 290, 298 (5) (180 SE2d
567) (1971).

[fn8] Allen v. State, 280 Ga. App. 663, 664 (1) (634 SE2d
831) (2006).

[fn9] King v. State, 214 Ga. App. 406 (1) (447 SE2d 712)

[fn10] Notably, after being appointed as counsel to Patel
for the bond revocation hearing, Patel’s trial counsel did
not move for a continuance. Cf. Grice v. State, 224 Ga. 376
(2) (162 SE2d 432) (1968).

[fn11] Fuller v. State, 262 Ga. App. 656, 657 (1) (586 SE2d
359) (2003).

[fn12] Bowden v. State, 279 Ga. App. 173, 177 (2) (630 SE2d
792) (2006).

[fn13] Marshall v. State, 128 Ga. App. 413 (1) (197 SE2d
161) (1973).

[fn14] Williams v. State, 279 Ga. App. 388, 389 (631 SE2d
417) (2006).

[fn15] Powell v. State, 239 Ga. App. 780, 782 (3) (522 SE2d
244) (1999).

[fn16] Hirjee v. State, 263 Ga. App. 185, 186 (587 SE2d
144) (2003).

[fn17] Gould v. State, 273 Ga. App. 155, 158-160 (4) (614
SE2d 252) (2005).