                                 FOURTH DIVISION
                                  DILLARD, C. J.,
                               RAY, P. J. and SELF, J.

                     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


                                                                      August 3, 2017




In the Court of Appeals of Georgia
 A17A0949. WORTHEN v. THE STATE.                                               SE-029C

      SELF, Judge.

      Tobias Worthen appeals from his convictions for insurance fraud, two counts

of theft by deception, making a false statement, and false report of a crime. In related

enumerations of error, Worthen complains about various waivers of his rights that

occurred after he absconded during the middle of his trial. He also argues that he is

entitled to a new trial based upon the absence of a complete trial transcript. For the

reasons explained below, we disagree and affirm.

      The record shows that Worthen’s trial began on March 31, 2015, with a senior

judge presiding. On the fourth day of trial, Worthen failed to return to court, and the

trial court issued a bench warrant for his arrest. The trial continued in his absence,

and the jury found him guilty of all charges. On April 6, 2015, the senior judge
sentenced Worthen to serve a total of 27 years. On April 10, 2015, Worthen’s trial

counsel filed a motion for new trial asserting the general grounds, along with a

request for a trial transcript on the grounds that Worthen was indigent and represented

by the Clayton County Public Defender’s Office.

      On April 14, 2015, a different judge signed an order prepared by Worthen’s

counsel which granted his request for a transcript at public expense. The first

sentence of the order incorrectly stated that Worthen “continues to be indigent and

incarcerated after being sentenced by this Court on April 6, 2015,” when in fact

Worthen “remained an unapprehended fugitive until May 1, 2016 – more than a year

following his conviction.” (Emphasis supplied.) After learning that Worthen had

absconded during a trial over which the senior judge had presided, the judge set aside

her order granting a transcript and denied a subsequent request by Worthen for a free

transcript.

      On May 25, 2016, the trial court held a status conference in which counsel for

both parties and Worthen were present. In this conference, the trial court “informed

the parties that it appeared that the Defendant’s Motion for New Trial was subject to

dismissal due to its having been filed while the Defendant was a fugitive.” After

giving Worthen an opportunity to file briefs on the issue, the trial court dismissed the

                                           2
April 10, 2015 motion for new trial based upon Worthen’s absence. Worthen then

filed a timely notice of appeal from this order.

      1. Worthen contends that there was no valid waiver of his right to be present

at sentencing, arguing that the State failed to prove a “valid, intelligent and knowing

waiver.” In Worthen’s view, the State must prove that he knew he was waiving his

right to be present at sentencing if he absented himself from the trial. We disagree.

It is well-established that if a trial has begun in the defendant’s presence and he

voluntarily absents himself, “this does not nullify what has been done or prevent the

completion of the trial, but, on the contrary, operates as a waiver of his right to be

present and leaves the court free to proceed with the trial in like manner and with like

effect as if he were present.” (Citation and punctuation omitted.) Taylor v. United

States, 414 U. S. 17, 19 (94 SCt 194, 38 LE2d 174) (1973). See also Byrd v. Rickets,

233 Ga. 779, 780 (213 SE2d 610) (1975) (finding no violation of right to be present

where defendant “voluntarily absents himself from the trial”).

      2. In related enumerations of error, Worthen claims that his trial counsel was

authorized to file a timely motion for new trial during his absence, that there was no

valid waiver of his post-conviction rights, that the trial court’s failure to consider the

merits of his motion for new trial violated his due process rights under the state and

                                            3
federal constitutions, and that his motion for new trial was not subject to dismissal

because he was back in custody by the time the trial court dismissed it. As the State

correctly asserts in its brief, long-standing authority precludes these claims.

      Commonly known as the “fugitive disentitlement doctrine,”1 this equitable

doctrine limits access to courts by fugitives from justice. Fed. Deposit Ins. Corp. v.

Pharaon, 178 F3d 1159, 1161 (II) (11th Cir. 1999). “Aside from the difficulty of

enforcing a judgment against a fugitive, other rationales underlying the doctrine

include promoting the efficient operation of the courts, discouraging flights from

justice, and avoiding prejudice to the other side caused by the appellant’s fugitive

status.” Pesin v. Rodriguez, 244 F3d 1250, 1253 (11th Cir. 2001). See also Harper

v. State, 300 Ga. App. 25, 28 (684 SE2d 96) (2009).

      In Harper, supra, we addressed nearly identical facts and claims. The defendant

in that case became a fugitive during his trial, the trial court issued a bench warrant

for his arrest, the trial proceeded without him, and he was sentenced in absentia. 300

Ga. App. at 26. His trial counsel filed a timely motion for new trial in his absence in

an attempt to preserve his right to a direct appeal. Id. at 26-27. After the State filed

a motion to dismiss the motion for new trial and before the trial court ruled upon it,

      1
          See, e. g., State v. Wood, 338 Ga. App. 181, 186 (2) (790 SE2d 84) (2016).

                                           4
the defendant was captured. Id. A few days later, the trial court dismissed the motion

for new trial. Id. at 27.

       We affirmed, explaining: “Georgia law is clear . . . that where a defendant

becomes a fugitive before filing any post-conviction motions and then remains a

fugitive during the time in which he could assert such a motion, he waives his right

to seek post-conviction relief.” (Citations, punctuation and footnotes omitted.) Id.

And, “[a]s the Supreme Court of Georgia explained over a century ago, ‘a fugitive

defendant does not have a right to appear by counsel until he has returned into

custody.’” (Citations, punctuation and footnotes omitted.) Id. at 28. Additionally, no

due process violations are implicated in dismissals under this doctrine. See Goeke v.

Branch, 514 U. S. 115, 118-119 (115 SCt 1275, 131 LEd2d 152) (1995); Allen v.

Georgia, 166 U. S. 138 (17 SCt 525, 41 LE2d 949) (1897); Brown Ricketts, 235 Ga.

29 (218 SE2d 785) (1975). Finally, the fact that Worthen was captured before the trial

court dismissed the motion for new trial filed by his attorney does not preclude its

application. As we held in Harper, supra, Worthen waived his right to seek a new

trial “[b]ecause [he] remained a fugitive during the entire time in which he could have

filed a motion for new trial.” 300 Ga. App. at 28.



                                          5
      3. Worthen argues that the General Assembly’s 1980 enactment of a statute

making bail-jumping a crime, OCGA § 16-10-51, means “the prior judicially-created

penalty is no longer available.” We disagree.

      It is well-established “that, to the extent that statutory text can be as reasonably

understood to conform to the common law as depart from it, the courts usually

presume that the legislature meant to adhere to the common law.” (Citation and

punctuation omitted.) Fed. Deposit Ins. Corp. v. Loudermilk, 295 Ga. 579, 591 (2)

(761 SE2d 332) (2014). As nothing in the plain language of the statute criminalizing

bail-jumping can be viewed as superseding the equitable common law doctrine of

fugitive disentitlement and no inconsistencies exist between the common law and the

statute, Worthen’s argument has no merit. Id. at 593 (2) (common law consistent with

and not superseded by statute); Culpepper v. Veal, 246 Ga. 563, 564 (272 SE2d 253)

(1980) (rejecting argument that statute superseded common law).

      Worthen’s argument that as a penal statute, OCGA § 16-10-51 should be

construed in his favor misses its mark. The rule of lenity requires a court to interpret

an ambiguous criminal statute in favor of the defendant. See Banta v. State, 281 Ga.

615, 617-618 (2) (642 SE2d 51) (2007) (“rule of lenity . . . applies only when, after

consulting traditional canons of statutory construction, we are left with an ambiguous

                                           6
statute”) (citation and punctuation omitted.). As no ambiguity exists in this case, the

rule of lenity does not apply.

      4. In his remaining enumeration of error, Worthen asserts that he is entitled to

a new trial based upon “[t]he absence of a complete transcript.” We disagree. The

authorities cited by Worthen in support of this claim of error involve the lack of a

complete transcript in pending appeals where the defendant had not been a fugitive.

See, e. g., Sheard v. State, 300 Ga. 117, 119-120 (2) (793 SE2d 386) (2016). Based

upon our decision to affirm the trial court’s decision to dismiss the motion for new

trial filed by Worthen’s counsel, the lack of a complete trial transcript is moot and

does not entitle him to a new trial. See Lewis v. Duckworth, 680 F2d 508, 509 (7th

Cir. 1982).

      Judgment affirmed. Dillard, C. J., and Ray, P. J., concur.




                                          7
