CourtListener 10679785

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315 Ga. 31
FINAL COPY

S22A1214. MOTEN v. THE STATE.

COLVIN, Justice.

Victor Keyshawn Moten was convicted of malice murder and

related offenses in connection with the shooting death of Juan Diaz

Mendez.1 On appeal, Moten contends that the trial court erred by

1 Mendez was shot on December 17, 2015, and died from the gunshot

wound three days later. On April 4, 2016, an Atkinson County grand jury
indicted Moten, along with Khalil Darnell Daniels, Rashad Marquis Flowers,
and Marshawn Rashad Jones, for malice murder (Count 1), felony murder
predicated on armed robbery (Count 2), criminal attempt to commit armed
robbery (Count 3), three counts of possession of a firearm during the
commission of a felony (Counts 4, 7, and 9), two counts of aggravated assault
(Counts 5 and 6), and one count of aggravated battery (Count 8). A joint jury
trial was held from November 30 to December 2, 2016. Moten was found guilty
of all counts. He was sentenced to serve life in prison for malice murder (Count
1), 20 years in prison concurrent for criminal attempt to commit armed robbery
(Count 3), and five years in prison consecutive for possession of a firearm
during the commission of a felony (Count 4). Counts 5 through 9 merged for
sentencing. The trial court purported to merge Count 2, but that count was
actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 371-
372 (4) (434 SE2d 479) (1993). On December 19, 2016, Moten’s trial counsel
timely filed a motion for new trial. On May 24, 2022, the trial court denied
Moten’s motion for new trial. Moten filed a timely notice of appeal. The case
was docketed to the August 2022 term of this Court and submitted for a
decision on the briefs.
refusing to allow him to amend his motion for new trial to add a

timely claim of ineffective assistance of trial counsel. We agree.

Accordingly, we vacate the trial court’s order denying Moten’s

motion for new trial and remand this case to the trial court for

proceedings consistent with this opinion.

On December 19, 2016, Moten’s trial counsel timely filed a

boilerplate motion for new trial, contending that the verdict was

“contrary to the principle of fairness and equity,” “against the

principles of law and due process of justice,” and “against the

evidence presented at trial.” Moten was then appointed appellate

counsel. On December 9, 2021, the trial court issued a scheduling

order, setting a hearing date for the motion for new trial and

requiring all amended motions be filed before February 24, 2022.

The trial court subsequently issued an amended order modifying the

deadline for filing amended motions to March 30, 2022. Moten did

not file an amended motion for new trial prior to that date.

On May 2, 2022, at the beginning of the hearing on Moten’s

motion for new trial, counsel presented to the trial court and the

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State an amended motion for new trial that raised, for the first time,

a claim of ineffective assistance of trial counsel. When questioned

by the trial court on whether the amended motion had been timely

filed in accordance with the scheduling order, counsel responded “I

thought this was sent in from our legal assistant . . . I haven’t had

access to my public defender email, which is why I did not send it in

. . . and I apologize for that.” The trial court informed counsel that,

because she did not meet the deadline set out in the scheduling

order, she would “need to contain [her]self to the motion that’s been

filed of record.” As a result, Moten was unable to argue or fully

present his claim of ineffective assistance of counsel. The trial court

subsequently entered an order denying Moten’s original motion for

new trial. Moten argues that the trial court’s refusal to allow him

to amend his motion for new trial is counter to existing law and

deprived him of a meaningful appeal. We agree.

Pursuant to OCGA § 5-5-40 (b), a defendant may amend a

timely filed motion for new trial “any time on or before the ruling

thereon.” Further, OCGA § 5-5-40 (d) provides that “[t]he grounds

3
of the motion need not be approved by the court.” Thus, as both this

Court and the Court of Appeals have explained, the plain language

of OCGA § 5-5-40 allows a defendant to amend a timely filed motion

for new trial at any point prior to the court’s ruling, even if the

defendant wishes to amend his motion at or after the motion

hearing. See Hegedus v. Hegedus, 255 Ga. 44, 45 (1) (335 SE2d 284)

(1985) (construing OCGA § 5-5-40 (b) to permit amendments to a

motion for new trial “until the trial court’s final disposition”). See

also Whipkey v. State, 353 Ga. App. 592, 593 (838 SE2d 907) (2020)

(“The trial court erred by issuing a scheduling order which was in

direct conflict with [the defendant’s] statutory right to amend his

motion for new trial at any time prior to the trial court’s ruling on

the motion.”); Allen v. State, 353 Ga. App. 442, 442 (838 SE2d 106)

(2020) (holding that the defendant “was entitled to amend his

motion for new trial . . . until the trial court filed its final order”);

Whitton v. State, 174 Ga. App. 634, 636 (331 SE2d 10) (1985) (“[T]he

motion for new trial, as amended before a ruling was obtained, was

properly before the court for hearing, and the trial court erred in

4
dismissing the motion without ruling on the grounds enumerated

therein.”).

Here, Moten timely filed a motion for new trial and attempted

to amend it prior to the start of the hearing on the same. Because

OCGA § 5-5-40 (b) permits movants to amend a motion for new trial

at any time before the trial court’s final ruling, the trial court erred

in refusing to consider the ineffectiveness claim Moten sought to add

to his motion for new trial. Accordingly, we vacate the trial court’s

order denying the motion for new trial and remand the case so that

Moten may amend his motion for new trial.

Judgment vacated, and case remanded with direction. All the
Justices concur.

5
Decided October 25, 2022.

Murder. Atkinson Superior Court. Before Judge Tomlinson.

Lela J. Acker, for appellant.

Chase L. Studstill, District Attorney, Jennifer R. Smith,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant

Attorney General, for appellee.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: October 25, 2022

S22A1214. MOTEN v. THE STATE.

COLVIN, Justice.

Victor Keyshawn Moten was convicted of malice murder and

related offenses in connection with the shooting death of Juan Diaz

Mendez.1 On appeal, Moten contends that the trial court erred by

1Mendez was shot on December 17, 2015 and died from the gunshot
wound three days later. On April 4, 2016, an Atkinson County grand jury
indicted Moten, along with Khalil Darnell Daniels, Rashad Marquis Flowers,
and Marshawn Rashad Jones, for malice murder (Count 1), felony murder
predicated on armed robbery (Count 2), criminal attempt to commit armed
robbery (Count 3), three counts of possession of a firearm during the
commission of a felony (Counts 4, 7, and 9), two counts of aggravated assault
(Counts 5 and 6), and one count of aggravated battery (Count 8). A joint jury
trial was held from November 30 to December 2, 2016. Moten was found guilty
of all counts. He was sentenced to serve life in prison for malice murder (Count
1), 20 years in prison concurrent for criminal attempt to commit armed robbery
(Count 3), and five years in prison consecutive for possession of a firearm
during the commission of a felony (Count 4). Counts 5 through 9 merged for
sentencing. The trial court purported to merge Count 2, but that count was
actually vacated by operation of law. See Malcom v. State, 263 Ga. 369, 371-
372 (4) (434 SE2d 479) (1993). On December 19, 2016, Moten’s trial counsel
timely filed a motion for new trial. On May 22, 2022, the trial court denied
Moten’s motion for new trial. Moten filed a timely notice of appeal. The case
refusing to allow him to amend his motion for new trial to add a