                              FOURTH DIVISION
                                BARNES, P. J.,
                            RAY and MCMILLIAN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                 September 25, 2015


In the Court of Appeals of Georgia
 A15A1044. FONTAINE v. THE STATE.

      BARNES, Presiding Judge.

      A jury found Michael Gene Fontaine guilty of possession of

chlorophenylpiperazine, methamphetamine, morphine, and oxycodone; possession

of methamphetamine with intent to distribute; two counts of possession of a firearm

during the commission of a felony; and possession of a firearm by a convicted felon.

Following the denial of his motion for new trial, Fontaine appeals, arguing that the

trial court erred by denying his motion to suppress, that he received ineffective

assistance of counsel, and that some of his convictions should have merged. Although

Fontaine’s first two claims of error lack merit, we agree with his merger argument.

Accordingly, we vacate his sentence and remand for resentencing.

      Viewed in the light most favorable to the verdict, see Morris v. State, 322 Ga.

App. 682 (1) (746 SE2d 162) (2013), the record shows that Agent David Gilleland

of the Walker County Sheriff’s Department went to a Best Western in Fort
Oglethorpe to investigate a report of a possible methamphetamine lab in room 101.

He did not have a search warrant. Gilleland knocked on the door of room 101, and

Fontaine answered. Gilleland told Fontaine why he was there and asked for

permission to search the room, which Fontaine gave. Upon entering the room,

Gilleland saw a woman, later identified as Margaret Hoodenpyle, lying on the bed

and a second man, identified as Jeffrey Williams, in the bathroom. Gilleland directed

Fontaine, Hoodenpyle, and Williams to the sitting area at the front of the room while

he searched the bathroom area.

        Gilleland went immediately to the trash can located under the sink because a

hotel trash can is “a common hiding place.” He picked up the trash can and found it

“oddly heavy,” so he removed the bag. Under the bag, wrapped inside a shirt,

Gilleland found a handgun, a digital scale (commonly used to weigh drugs), and a

number of Ziploc bags (commonly used to transport drugs). He also found pills and

other    substances   that   later tested       positive for chlorophenylpiperazine,

methamphetamine, morphine, and oxycodone.

        While Gilleland was searching the trash can, Agent Dewayne Brown of the

Walker County Sheriff’s Department entered the room and searched the rest of it.

Brown found a glass pipe containing methamphetamine residue between the two

                                            2
mattresses on the bed and a plastic coffee mug with a digital scale hidden in a

compartment in the bottom. Brown also found a digital camera containing images of

a man’s hands inserting a glass pipe into a woman’s vagina.

      Gilleland arrested Fontaine, searched him, and found $714 in cash inside his

wallet. Gilleland read Fontaine his Miranda rights, which Fontaine waived. Fontaine

then told Gilleland that he had met Williams and Hoodenpyle at the hotel earlier that

day “in order to have a threesome exchange for methamphetamine.” When Gilleland

asked if Fontaine was selling drugs, Fontaine said, “[Y]ou found them.” Fontaine also

told Gilleland that he had “swapped the firearm for methamphetamine.”

      Williams, who later pled guilty to possession of methamphetamine, testified

that he had taken the pictures on the digital camera, and he identified Fontaine and

Hoodenpyle as the people in the pictures. (In a similar vein, Brown testified that the

tattoos on the hands of the man in the pictures matched the tattoos he saw on

Fontaine’s hands.) Williams further testified that he and Hoodenpyle had had sex with

Fontaine at the hotel that day, though he denied that the sex had been planned in

advance.1

      1
        Williams testified that he and Hoodenpyle had gone to the hotel to exchange
a car tag and wound up having sex with Fontaine “just out of casual conversation.”
Brown, however, testified that Williams had said that “they were there to have sex

                                          3
      1. Fontaine argues that the trial court erred by denying his motion to suppress

because Gilleland’s foray into the trash can exceeded the scope of the consent he had

given, rendering the search invalid and tainting his subsequent custodial statements.2

“The intrusiveness of a consensual search – including the type, duration, and physical

zone of the intrusion – is limited by the permission granted, and only that which is

reasonably understood from the consent may be undertaken.” Walker v. State, 299 Ga.

App. 788, 791 (2) (683 SE2d 867) (2009). Fontaine maintains that he agreed only to

let Gilleland look for a methamphetamine lab, not scour the hotel room for narcotics.

      Pretermitting whether Fontaine’s consent was limited to a search for a

methemphetamine lab,3 Gilleland’s search did not exceed the reasonable scope of



with Mr. Fontaine . . . and repay would be given in narcotics.”
      2
        The trial court granted Fontaine’s motion to suppress evidence found during
a search of his car in the hotel parking lot.
      3
         At the suppression hearing, Gilleland testified unequivocally that when he
asked for permission to search the room, he told Fontaine he was investigating a
report of narcotic activity. We have held that consent to search for drugs is consent
to a “full-blown search,” including the examination of items and containers. Taylor
v. State, 230 Ga. App. 749, 751-752 (1) (e) (498 SE2d 113) (1998); see also Varriano
v. State, 312 Ga. App. 266, (718 SE2d 14) (2011). But on cross-examination at trial,
Gilleland agreed that he had told Fontaine he was there “on the possibility of an
active methamphetamine lab,” suggesting – according to Fontaine – a more limited
search.

                                          4
such a search. Although Fontaine argues on appeal that “a small trash can is unlikely

to house an ‘active methamphetamine lab,’” the evidence at the suppression hearing

indicated otherwise. On cross-examination, the following exchange occurred between

defense counsel and Gilleland:

      Q:     I know that Methamphetamine labs can be somewhat portable and
             small. I’ve seen them as small as like a two-liter bottle. I have
             heard of that before.

      A.     Yes.

      Q:     But I’m assuming that . . . the trash can that was there was a small
             size trash can like they typically keep in a motel room?

      A:     Average size for a hotel room, yes.

      Q:     Now, you didn’t think at that point that there could be a
             Methamphetamine lab in that garbage can, did you?

      A:     Yes, sir. There could be a Methamphetamine lab in the garbage can.

      Q:     There could have?

      A:     Yes, sir . . . [W]e work quite a number of one-pot
             Methamphetamine labs which you were referring to in a two-liter
             bottle which is also done in 16-ounce or 20-ounce Mountain Dew,
             Coca-Cola bottles, such as that.

In light of this evidence that a small, portable methamphetamine lab could fit inside

a hotel trash can, as well as Gilleland’s trial testimony that trash cans are common


                                          5
hiding places, the trial court did not err by denying Fontaine’s motion to suppress.

See Richardson v. State, 328 Ga. App. 519, 520 (1) (759 SE2d 630) (2014) (in

reviewing a trial court’s ruling on a motion to suppress, we construe the evidence

most favorably to uphold the court’s findings and judgment).

      2. Fontaine contends that he received ineffective assistance of counsel because

his lawyer failed to move to bifurcate his trial on Count 8 (possession of a firearm by

a convicted felon) from the trial on the other charges. When a defendant is charged

with possession of a firearm by a convicted felon along with other crimes, defense

counsel should move to bifurcate the trial “absent a compelling reason to do

otherwise” so that the jury can consider whether the defendant committed the other

crimes “before hearing proof of the firearm possession offense and without the taint

of bad character evidence.” (Footnote omitted.) Harris v. State, 252 Ga. App. 849,

851 (1) (557 SE2d 452) (2001). In light of this well-established law, the State

concedes that defense counsel’s performance was deficient because he did not move

for a bifurcated trial. See id.; Vann v. State, 266 Ga. App. 238, 240-241 (1) (596 SE2d

722) (2004).

      To prevail on his ineffective assistance claim, however, Fontaine must show

not only that counsel’s performance was deficient, but also that “the deficiency so

                                          6
prejudiced him that, but for counsel’s errors, the outcome of the trial likely would

have been different.” (Citation omitted.) Love v. State, 305 Ga. App. 573 (1) (699

SE2d 872) (2010). The record shows that despite defense counsel’s failure to make

a motion, the court nevertheless bifurcated the trial so that the jury considered the

evidence in support of Count 8 only after it had returned a verdict on the other

charges. Thus, the jury’s consideration of the other charges was not tainted by

unfavorable character evidence.

      Fontaine nonetheless claims that he was prejudiced because the prosecutor read

aloud a portion of Count 8 of the indictment, which listed Fontaine’s prior

convictions , to the prospective jurors during voir dire. Voir dire was not transcribed

, but at the hearing on Fontaine’s motion for new trial more than two years later, the

prosecutor and defense counsel tried to reconstruct what had happened. They agreed

that the prosecutor had begun reading Count 8, but the court had interrupted, called

the attorneys to the bench, and told the prosecutor to stop so as not to taint the jury.4


      4
        The trial transcript shows that defense counsel later requested that the jury be
polled because a juror apparently had asked whether Fontaine had any prior
convictions. Neither that question nor the court’s response to it was transcribed.
Although the question indicates that at least one juror may have noticed that the
prosecutor had begun reading Count 8, it also suggests that he did not read the
entirety.

                                           7
At the conclusion of the motion for new trial hearing, the trial court ruled that there

was no evidence that the jury had heard any information about Fontaine’s prior

convictions, and it denied the motion. “The burden is on the party alleging error to

show it affirmatively by the record, and when he does not do so, the judgment is

assumed to be correct and must be affirmed.” (Footnote and punctuation omitted.)

Gordillo v. State, 255 Ga. App. 73, 75 (3) (564 SE2d 486) (2002). In light of the

lawyers’ uncertainty about how much of Count 8 was read aloud, the record does not

permit a presumption that the jury was tainted.

      Moreover, the State presented a highly compelling case against Fontaine.

Police found methamphetamine and other drugs, multiple digital scales, and baggies

in a hotel room that he had rented; a large amount of currency in his wallet; and a

picture of him inserting a methamphetamine pipe into Hoodenpyle’s vagina. Fontaine

and Williams both told police that Williams and Hoodenpyle had gone to the hotel

to have sex with Fontaine in exchange for drugs. And when Gilleland asked Fontaine

whether he was selling drugs, Fontaine replied, “[Y]ou found them.” Due to this

overwhelming evidence of Fontaine’s guilt, it is highly probable that the reading of

some portion of Count 8 of the indictment to the jury did not contribute to the verdict.



                                           8
See Williams v. State, 312 Ga. App. 693, 695 (2) (2011); Nickerson v. State, 248 Ga.

App. 829, 832 (2) (a) (545 SE2d 587) (2001).

      3. Fontaine argues that the trial court erred by failing to merge Count 3

(possession of methamphetamine) into Count 2 (possession of methamphetamine with

intent to distribute) because the former is included in the latter as a matter of fact.

Fontaine also contends that the court should have merged Counts 6 and 7, the gun

possession charges associated with Counts 2 and 3. See, e.g., Bryan v. State, 271 Ga.

App. 60, 65 (4) (608 SE2d 648) (2004) (defendant’s convictions of manufacturing

methamphetamine, possessing it, and possessing it with intent to distribute merged

as a matter of fact because “the different offenses are proven with the same facts”).

The State agrees, but claims that the trial court has already corrected this error by

entering an order amending the sentence to reflect the required merger.

      That corrective order, however, was entered three months after Fontaine filed

his notice of appeal. A trial court lacks jurisdiction to modify a sentence after the

filing of a notice of appeal, and any such modification is a nullity. Brock v. State, 166

Ga. App. 649 (1) (305 SE2d 180) (1983); see also Scroggins v. State, 288 Ga. 346,

347 (filing of notice of appeal deprives trial court “of the power to affect the

judgment appealed, so that subsequent proceedings purporting to supplement, amend,

                                           9
alter or modify the judgment . . . are without effect”) (citation and punctuation

omitted). Because the trial court’s order purporting to modify Fontaine’s sentence is

without effect, the sentence must be vacated and the case remanded for resentencing

in accordance with this opinion.

      Sentence vacated and case remanded for resentencing in accordance with this

opinion. Ray, J., and McMillian, J., concur.




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