                               FIFTH DIVISION
                              MCFADDEN, P. J.,
                           BRANCH and BETHEL, 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


                                                                   October 25, 2017




In the Court of Appeals of Georgia
 A17A0834. HILLEY v. THE STATE.
 A17A1691. HILLEY v. THE STATE.

      BRANCH, Judge.

      A jury found Jeremy Hilley guilty of using a computer Internet service to

seduce a person he believed to be a child as well as two counts each of attempted

aggravated child molestation and attempted child molestation. On appeal from his

conviction for these crimes in Case No. A17A0834, Hilley argues that the trial court

made inadequate findings in its order denying his motion for new trial and that his

due process rights were violated when a federal court quashed subpoenas seeking

evidence against a federal agent involved in his arrest. In the companion appeal, Case

No. A17A1691, Hilley argues that the trial court erred when it revoked his probation

because Hilley was entitled to assert his Fifth Amendment right against self-
incrimination and because the State did not prove that Hilley was informed of the

rules of his treatment program. We find no error and affirm in both cases.

      “On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict, with the defendant no longer enjoying a presumption of

innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation

omitted). We neither weigh the evidence nor judge the credibility of witnesses, but

determine only whether, after viewing the evidence in the light most favorable to the

prosecution, “any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B)

(99 SCt 2781, 61 LE2d 560) (1979) (citation omitted).

      So viewed, the record shows that in late June 2010, Detective Chris Lyons of

the Catoosa County Sheriff’s Office placed an ad on Craigslist purporting to be from

two girls looking to meet men who could buy the girls “s[ome] wine coolers.” Hilley

answered the ad, stating that he was 29, could send pictures, and “would love to party

with you girls.” When the officer responded with a message that the two girls were

14 and 15 respectively, Hilley asked whether they were “cops” or part of “a sting

operation” but also said that he would “love to” meet them. After further discussion

and an exchange of pictures, Hilley asked whether both of the girls were willing to

                                          2
have sex with him. The officer responded that they were but asked Hilley to “bring

s[ome] protection.” After the exchange of further messages, some of them sexually

explicit, Hilley agreed to meet at a local park at 6 p.m. on the following day.

      When Hilley arrived at the park early, he was met by Detective Lyons and

another officer, who confirmed Hilley’s identity and arrested him. A search of

Hilley’s car by officers including FBI Special Agent Ken Hillman, the director of a

joint task force on internet crimes against children, found two condoms as well as

directions to the park. The officers also found that Hilley’s cell phone number

matched the one he had disclosed during the conversations with the detective. Hilley

was charged with one count of using a computer internet service for the purpose of

seducing a child, two counts of attempted aggravated child molestation, and two

counts of attempted child molestation. After a jury found him guilty on all five

counts, Hilley was convicted and sentenced to 20 years on probation, including 48

months in a detention center.

      The sex offender special conditions of Hilley’s probation included that (1) that

Hilley have no contact, whether directly or indirectly, with any child under the age

of 18 other than his own children; (2) that he “attend and actively participate in sex

offender evaluation and treatment at a program approved by the Probation Officer[,]

                                          3
abide by the rules of the treatment program[,] and successfully complete the program

to the satisfaction of the Probation Officer and the treatment provider”; (3) that he

“submit, at [his] own expense, to any program of psychological or physiological

assessment at the direction of the Probation Officer or treatment provider,” including

polygraph testing “to assist in treatment, planning, and case monitoring”; and (4) that

he “not [ ] possess or use any type of computer.” Although Hilley signed an

acknowledgment of some of the special conditions of his probation as to Counts 1

and 2, including that “violation of a condition of probation could result in revocation

of all time remaining on the period of probation,” he refused to sign

acknowledgments as to Counts 3, 4 and 5 or any of the sex offender special

conditions, which were read to him nonetheless.

      On December 22, 2011, Hilley’s first appellate counsel filed a motion for new

trial. Between December 2011 and May 2014, Hilley was represented by three

different attorneys. In May 2014, the fourth and current appellate counsel appeared,

and she soon obtained a continuance of a hearing on the motion for new trial

scheduled for July 7, 2014.

      On July 13, 2015, Hilley filed an amended motion for new trial, with

attachments including news articles and federal court orders quashing subpoenas

                                          4
seeking evidence as to the activities of Special Agent Hillman and his task force.

After obtaining another continuance, Hilley moved to recuse the trial judge. After a

hearing, a second judge denied the motion to recuse, noting that it was based “in large

part on speculation as to what may be revealed from sources that have been precluded

from access by repeated orders” of the federal court. Hilley then filed a second

amended motion for new trial, attaching many of the same documents attached to his

first amended motion. The second amended motion noted that it did not “request oral

argument” and asked the court “to rule on the motion after reviewing the record and

the briefs.” On November 4, 2015, and after noting that Hilley had thus “waived a

evidentiary hearing,” the trial court denied the second amended motion for new trial.

      After serving the prescribed 48 months in the probation detention center, Hilley

began weekly sex offender therapy sessions with Dr. Glenn Fraser in February 2016.

On November 15 and December 20, 2016, Hilley appeared for polygraph tests.

According to the polygraph examiner, during both the pre-test interview and the test

itself, Hilley invoked his Fifth Amendment right against self-incrimination in

response to questions as to whether he had unsupervised contact with anyone under

age 18, whether he had used alcohol or illegal drugs, or whether he had violated any

treatment or probation rules. Shortly afterward, Dr. Fraser released Hilley from

                                          5
  treatment because he was refusing to “engage in treatment.” On February 7, 2017, the

  State petitioned for the revocation of Hilley’s probation. The petition alleged that

  Hilley violated his probation when he “[f]ailed to abide with the sex offender

  conditions of probation, to wit: the defendant was terminated from sex offender

  treatment.”1

          At the March 2017 hearing on the petition to revoke Hilley’s probation, Dr.

  Fraser testified that he had begun treating Hilley in February 2016, seeing him once

  a week. Fraser testified that he discharged Hilley in December 2016 for “multiple”

  reasons, including that Hilley “would not engage in treatment” and would “only talk

  about his case of trying to get off probation.” Specifically, Fraser testified that “after

  failing the polygraphs,” Hilley asserted his Fifth Amendment rights against self-

  incrimination. When Fraser responded by telling Hilley that treatment would

  necessarily require administering “more polygraphs to investigate . . . areas that were

  of concern,” Hilley refused such tests in advance, asserting that they amounted to

  “cruel and unusual punishment.” On cross-examination, Fraser explained further that


      1
        Before counsel appeared on his behalf in the probation revocation proceedings,
Hilley filed pro se motions to discontinue sex offender registration and to modify the
conditions of his probation. It does not appear that the trial court ruled on either of these
motions.

                                              6
Hilley was terminated based on his high “level of denial” as to the facts of his

offenses for a substantially longer period than usual, amounting to a refusal to engage

in treatment. Specifically, and because Hilley “could not be accurately supervised”

without polygraph testing, the treating psychologists were bound by their own

contracts with the State not to grant him “credit under [Department of Community

Supervision] guidelines for treatment.” After hearing this testimony, the trial court

found that Hilley had violated his probation by failing to complete treatment, granted

the State’s revocation petition, and ordered Hilley jailed for one year.

      Hilley filed a direct appeal from the denial of his motion for new trial, and we

granted his application for discretionary appeal from the revocation of his probation.

                                Case No. A16A0834

      1. Although Hilley has not challenged the sufficiency of the evidence against

him, the evidence outlined above was sufficient to sustain his conviction. See OCGA

§ 16-6-4 (defining child molestation and aggravated child molestation), 16-4-1

(defining criminal attempt to commit a felony), § 16-12-100.2 (d) (defining the

offense of using an internet service to seduce or attempt to seduce a child or “another

person believed by such person to be a child”); Lopez v. State, 326 Ga. App. 770,

773-774 (1) (a), (b) (757 SE2d 436) (2014) (evidence was sufficient to sustain

                                          7
defendant’s conviction for using a computer internet service and attempted

aggravated child molestation, given that neither crime required proof that the

defendant was communicating with an actual child victim, when the defendant “took

substantial steps to meet with [the person believed to be a child] to engage in sexual

activity that would constitute child molestation”); Jackson, supra.

        2. Hilley first argues that the trial court erred in failing to make findings of fact

and conclusions of law sufficient to show that it exercised its discretion in denying

his motion for new trial on the general grounds. We disagree.

        OCGA § 5-5-20 authorizes the trial court to grant a new trial “[i]n any case

when the verdict of a jury is found contrary to evidence and the principles of justice

and equity,” and OCGA § 5-5-21 empowers the court to grant a new trial “where the

verdict may be decidedly and strongly against the weight of the evidence even though

there may appear to be some slight evidence in favor of the finding.” As the Supreme

Court of Georgia has previously noted, these two statutes, read together, give the trial

court

        broad discretion to sit as a thirteenth juror and weigh the evidence on a
        motion for new trial alleging these general grounds. Our sovereign, the
        law, has in effect said to the trial judge: We charge you to let no verdict



                                              8
      stand unless your conscience approves it, although there may be some
      slight evidence to support it.


Walker v. State, 292 Ga. 262, 264 (2) (737 SE2d 311) (2013) (citations and

punctuation omitted).

      Because the question whether the evidence is sufficient to support a verdict is

a legal one, a trial court fails to exercise its discretion “when it evaluates the general

grounds by applying the standard of Jackson v. Virginia, supra, to a motion for new

trial based on the general grounds[.]” Id. at 264 (2) (citation omitted). As we have

noted, however,

      in interpreting the language of an order overruling a motion for a new
      trial, it must be presumed that the trial judge knew the rule as to the
      obligation thus devolving upon him, and that in overruling the motion
      he did exercise this discretion, unless the language of the order
      indicates to the contrary and that the court agreed to the verdict against
      his own judgment and against the dictates of his own conscience, merely
      because he did not feel that he had the duty or authority to override the
      findings of the jury upon disputed issues of fact.


Copeland v. State, 327 Ga. App. 520, 525 (2) (759 SE2d 593) (2014) (citation and

punctuation omitted; emphasis supplied).




                                            9
      This trial court’s order gives no indication that it incorrectly applied the legal

standard of Jackson v. Virginia to the question whether it should exercise its

discretion and grant a new trial under the general grounds. As a result, and as in

Copeland, “this is not a case where it is necessary for us to remand to the trial court

for consideration of this issue under the proper standard.” 327 Ga. App. at 527 (2)

(citation and punctuation omitted). Compare White v. State, 293 Ga. 523, 525 (2) (753

SE2d 115) (2013) (trial court’s “repeated statements” that the evidence was sufficient

to sustain the verdict “denotes that the trial court failed to apply its discretion” in

denying a motion for new trial asserting the general grounds) (citation and

punctuation omitted).

      3. Hilley also argues that he has been denied due process in a number of ways,

including that (a) the federal court violated his right to counsel when it erroneously

denied his subpoena requests for “documents and witnesses needed to investigate

potential appellate claims” on the basis that the evidence was privileged; (b) the

Georgia trial court violated his right to compulsory due process by failing to rule on

his claim that the federal court’s denial of the subpoenas was erroneous; and (c) he

has been deprived of his right to a speedy appeal. These assertions have no merit.



                                          10
      (a) As to his claim that his right to counsel was violated, Hilley is alleging error

by the federal court. Not having pursued an appeal of this action in federal court,

however, Hilley has no remedy in this or any other Georgia court.

      (b) As to his due process claim that the Georgia trial court should have ruled

on the federal court’s error, the argument portion of Hilley’s appellate brief does not

specify the documents and witnesses to which he was denied access by the federal

court. It appears from the first portion of his brief, however, as well as the news

stories attached to his motions for new trial, that he had sought evidence for the

purpose of impeaching Special Agent Hillman, who was involved in Hilley’s arrest

and testified briefly at trial. We treat Hilley’s argument as asserting error as to the

Georgia trial court’s denial of a motion for new trial on the basis of the “newly

discovered evidence” referenced in the news stories filed below.

      In his motions for new trial, Hilley made a variety of assertions as to how the

federal court’s quashing of the subpoenas deprived him of a “full and fair hearing”

on the merits of his appeal. As we have often held, however, “[m]otions for new trial

on the ground of newly discovered evidence are not favored and are addressed to the

sole discretion of the trial judge, which will not be controlled unless abused.” Merka

v. State, 201 Ga. App. 471, 473 (2) (411 SE2d 357) (1991) (citation and punctuation

                                           11
omitted). Further, “a new trial will not be granted if the only effect of the evidence

will be to impeach the credit of a witness.” Timberlake v. State, 246 Ga. 488, 491 (1)

(271 SE2d 792) (1980) (citation and punctuation omitted); see also Robinson v. State,

308 Ga. App. 45, 48 (2) (d) (706 SE2d 577) (2011) (physical precedent only). The

Supreme Court of Georgia has noted, moreover, that “[i]t is not enough to assert that

[further discovery] might produce evidence helpful to the defense, i.e., to embark on

a ‘fishing expedition.’” Sims v. State, 251 Ga. 877, 880 (4) (c) (311 SE2d 161)

(1984); see also Dority v. State, 335 Ga. App. 83, 107 (4) (i) (780 SE2d 129) (2015).

      Here, Hilley sought the evidence concerning Special Agent Hillman’s activities

for the single, impermissible purpose of impeaching him after trial. See Timberlake,

246 Ga. at 491 (1). Further, as Hilley has not specified that the evidence he is seeking

actually exists, it is clear that he is engaged in a fishing expedition. Accordingly, the

trial court did not abuse its discretion when it denied Hilley’s second amended motion

for new trial. Merka, 201 Ga. App. at 472 (2) (trial court’s denial of an extraordinary

motion for new trial was not an abuse of discretion when defendant had sought only

to impeach a witness).

      (c) To the extent Hilley asserts that events below have deprived him of a

speedy appeal, we note that “the Sixth Amendment to the United States Constitution

                                           12
does not guarantee a right to a speedy appeal[.]” Threatt v. State, 282 Ga. App. 884

(640 SE2d 316) (2006). To the extent that Hilley has been deprived of such an appeal

as a result of current appellate counsel’s pursuit of the second amended motion for

new trial, which resulted in the trial court’s conclusion that she had waived a hearing

on that motion, we note that current appellate counsel is barred from asserting her

own ineffectiveness on appeal. Danley v. State, 342 Ga. App. 61, 67-68 (6) (802

SE2d 851) (2017). Further, “appellate delay is prejudicial when there is a reasonable

probability that, but for the delay, the result of the appeal would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Chatman v. Mancill, 280 Ga. 253, 260-261 (2) (e) (626 SE2d 102) (2006)

(citation and punctuation omitted). No such prejudice has been shown here.

                                Case No. A17A1691

      4. In the companion discretionary appeal, Hilley first argues that the trial court

erred when it revoked his probation on the basis of his assertion of his Fifth

Amendment right against self-incrimination. We disagree.

      OCGA § 42-8-34.1 (b) provides that a trial court “may not revoke any part of

any probated or suspended sentence unless the defendant admits the violation as

alleged or unless the evidence produced at the revocation hearing establishes by a

                                          13
preponderance of the evidence the violation or violations alleged.” “[I]f some of the

allegations regarding revocation are supported by admissible evidence,” a trial court’s

decision to revoke probation “will be affirmed” as within the court’s discretion.

Couch v. State, 246 Ga. App. 106, 107 (2) (539 SE2d 609) (2000) (citation omitted).

      The sex offender special conditions of Hilley’s probation included the

provision that he “successfully complete [his] [treatment] program to the satisfaction

of the Probation Officer and the treatment provider.” It is true that probation cannot

be revoked merely on the basis of “refusing to answer incriminating [and] particular

questions” during a polygraph examination. Germany v. State, 315 Ga. App. 717, 719

(1) (727 SE2d 240) (2012). Such is not the case here, however. Hilley does not

dispute that his probation was revoked as a result of his refusal, lasting over almost

a year, to engage in treatment. As we have noted, Dr. Fraser testified that Hilley was

terminated based on his high “level of denial” as to the facts of his offenses for a

substantially longer period than was usual. The record also shows that when Dr.

Fraser informed Hilley that treatment would necessarily require administering “more

polygraphs to investigate . . . areas that were of concern,” Hilley refused such tests

in advance, asserting that they amounted to “cruel and unusual punishment.” Further,

because Hilley “could not be accurately supervised” without polygraph testing, the

                                          14
treating psychologists were bound by their own contracts with the State not to grant

him “credit under [Department of Community Supervision] guidelines for treatment”

pursued without polygraph testing.

      This evidence, given in sworn testimony before the trial court, was sufficient

to support that court’s discretionary determination that Hilley’s probation should be

revoked because of his failure to complete treatment, which was a specific condition

of that probation. See Germany, 315 Ga. App. at 719-720 (1) (where a probationer

had “declined to participate in any fashion” in a polygraph examination, a trial court

was authorized to revoke probation on the basis of a probationer’s “failure to comply

with [a] probation condition requiring him to undergo a polygraph examination”);

Lawson v. State, 969 So.2d 222, 236-237 (IV) (Fla. 2007) (trial court did not abuse

its discretion in finding defendant in violation of his probation and in revoking that

probation for being discharged from drug treatment program for nonattendance, even

though the probation order did not specify the number of attempts or the time certain

he had to complete the program).

      5. Hilley also asserts that the State failed to prove that he was actually informed

of the rules of his sex offender treatment program. Specifically, Hilley argues that the

special conditions of his probation were not sufficiently clear even when they

                                          15
required him to “submit, at [his] own expense, to any program of psychological or

physiological assessment at the direction of the Probation Officer or treatment

provider,” including any “polygraph” used “to assist in treatment, planning, or case

monitoring.”

      A trial court has broad discretion in sentencing to impose conditions
      reasonably related to the nature and circumstances of the offense and the
      rehabilitative goals of probation. . . . But such conditions must be stated
      with reasonable specificity to afford the probationer notice of the
      groups[,] places [and activities] he must avoid.


Harrell v. State, 253 Ga. App. 440, 441 (1) (559 SE2d 155) (2002) (citation and

punctuation omitted).

      As we have already noted, this record shows that although Hilley refused to

sign the special conditions of his probation, he was informed of them, and those

conditions were sufficiently specific to afford him notice of the need to participate in

treatment, including polygraph testing. Likewise, Dr. Fraser informed Hilley that he

was being terminated from treatment as a result of his failure to make substantial

progress in it, and the revocation petition alleged that Hilley had failed to abide by

the special conditions of his probation, which included the requirement that he

complete sex offender treatment. The evidence thus supported the trial court’s

                                          16
judgment that Hilley had sufficient notice of and violated the terms of his probation.

See Germany, 315 Ga. App. at 720 (2) (sentencing sheet “sufficiently informed [a

probationer] that his entire probation sentence could be revoked for violating a

particular probation condition”); Ellis v. State, 221 Ga. App. 103, 104 (2), (3) (470

SE2d 495 (1996) (special conditions of probation requiring submission to warrentless

searches and barring possession of “sexually explicit” material were not

impermissibly vague); Haji v. State, 331 Ga. App. 116, 117 (2) (769 SE2d 811)

(2015) (affirming revocation of probation when “[f]rom the record both the defendant

and the appellate court [could] ascertain the basis for the revocation”) (citation

omitted).

      Judgments affirmed. McFadden, P. J., and Bethel, J., concur.




                                         17
