                                  WHOLE COURT

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                               http://www.gaappeals.us/rules


                                                                  November 8, 2016




In the Court of Appeals of Georgia
 A16A1392. EDVALSON v. THE STATE.

      BRANCH, Judge.

      Thomas Scot Edvalson appeals from an order of the Gwinnett County Superior

Court denying his motion to dismiss and plea of former jeopardy. Edvalson asserts

that his prosecution is barred by double jeopardy because certain amended bond

conditions imposed upon him by the trial court were punitive in nature. Edvalson

further contends that because these bond conditions punished him for the indicted

crimes, the Double Jeopardy Clause prevents the State from punishing him further,

and therefore the State cannot try him for those crimes. Finding that Edvalson has no

cognizable double jeopardy claim, we affirm the order of the trial court.

             On an appeal from the grant or denial of a double jeopardy plea
      in bar, we generally review the trial court’s oral and written rulings as
      a whole to determine whether any factual findings contained therein
      support the trial court’s ruling as to whether the defendant was entitled
      to a plea in bar. But in those cases where the relevant facts are
      undisputed and no question regarding the credibility of witnesses is
      presented, we review de novo the trial court’s application of the law to
      undisputed facts.


Honester v. State, 336 Ga. App. 166, 167 (784 SE2d 30) (2016) (citations and

punctuation omitted). Here, the relevant facts are undisputed1 and show that Edvalson

was arrested in September 2012 on charges of possession of child pornography, and

he was subsequently indicted on four counts of sexual exploitation of children, in

violation of OCGA § 16-12-100 (b) (8).2 In November 2012, the trial court granted

Edvalson a bail bond which allowed Edvalson to remain free from incarceration while

awaiting trial. The trial court’s bond order contained two special conditions, with the

first condition prohibiting Edvalson from having a computer, smart phone, or other


      1
         This case represents the second appeal in which Edvalson has challenged the
bond conditions at issue. Before filing his plea in bar, Edvalson filed a petition for
habeas corpus in the trial court, asserting that the bond conditions were imposed in
violation of due process. The trial court denied Edvalson’s petition and the Supreme
Court of Georgia subsequently affirmed that decision. Edvalson v. State, 298 Ga. 626
(783 SE2d 603) (2016). Where appropriate, we quote from the Supreme Court’s
recitation of facts.
      2
        That statute provides: “[i]t is unlawful for any person knowingly to possess
or control any material which depicts a minor or a portion of a minor’s body engaged
in any sexually explicit conduct.”

                                          2
Internet-enabled device in his house. The second condition prohibited Edvalson from

having unsupervised contact with any child under the age of 16. On November 5,

2014, the State filed an emergency motion seeking to revoke Edvalson’s bond on the

grounds that he had violated the first special condition. Two days later, the trial court

held a hearing on that motion, at which both Edvalson and his lawyer were present.

During that hearing, the State presented the testimony of Detective Jeff Madson, who

was a certified forensic computer examiner. Madson’s testimony established that

since his release on bond, Edvalson had been online; had submitted images of child

erotica to at least one website; had been banned from a website for posting child

pornography; and had posted a number of comments regarding child pornography,

“including sarcastic comments about certain child pornography laws posted 29 days

before the revocation hearing.” Edvalson, 298 Ga. at 626-627.

              However, on cross-examination, the detective acknowledged that
      he had not been inside Edvalson’s house or applied for a search warrant
      for it; that he had no evidence that Edvalson had a computer,
      smartphone, or internet-enabled [device] in his house; and that he was
      not alleging that Edvalson had unsupervised contact with anyone under
      the age of 16 since he posted bond.


Id. at 627.


                                           3
At the close of the evidence,

              The superior court stated that it accepted that Edvalson was the
      author of the internet posts in question but despite the disturbing nature
      of the circumstances and the court’s concern, it was going to deny the
      motion to revoke bond because there was no evidence that Edvalson
      used, or possessed in his home, any of the devices prohibited in the bond
      or that he violated the terms and conditions as set forth in the bond
      order. However, the superior court detailed additional conditions of the
      bond which would then be in force, and stated that the special conditions
      of the original bond order would also remain in effect.


Id. at 627.

      The trial court set forth on the record the additional bond conditions it intended

to impose, and told Edvalson “I want it to be very clear, sir, that I don’t intend for you

to be on the Internet at all or using any computer or electronic devices . . . .”

Following the hearing, the trial court entered an order adding the following special

conditions to Edvalson’s bond:

              1. [Edvalson] shall not use or otherwise access the internet by any
      means nor shall he access any online service of any nature.
              2. [Edvalson] shall not possess, either directly or indirectly,
      images in any form depicting a child under 18 years of age.
      3. [Edvalson] shall not use or possess a computer, tablet, smart phone, or any
other device capable of accessing the internet.


                                            4
      After the trial court denied his motion for reconsideration of the order

amending his bond conditions, Edvalson filed a petition for a writ of habeas corpus,

“alleging that the additional bond conditions were overbroad, unduly restrictive, and

imposed in violation of due process.” Edvalson, 298 Ga. at 628. Following a hearing,

the trial court denied the petition, and in a decision issued on March 7, 2016, the

Supreme Court of Georgia affirmed the trial court. Id. at 629. In rejecting Edvalson’s

claim that the imposition of the amended bond conditions violated his due process

rights, the Supreme Court noted that “the superior court had the authority to impose

additional reasonable restrictions on Edvalson’s behavior as conditions of his pretrial

release on bond;” “Edvalson’s bond was not revoked and he was not deprived of his

freedom by incarceration;” “he had a full and fair opportunity to be heard before his

bond was modified”; and the amended bond conditions were neither overbroad nor

punitive in nature. Id.

      While Edvalson’s appeal on the writ of habeas corpus was pending, the State

re-indicted Edvalson, with the new indictment charging Edvalson with 22 counts of

sexual exploitation of a minor. Several months after the new indictment was handed

down, Edvalson filed a motion to dismiss and plea of former jeopardy, arguing that

                                          5
the amended bond conditions were punitive, rather than remedial; that the Double

Jeopardy Clause bars him from being punished twice for the same crimes; and that

because the State could not punish him further for the indicted crimes, the charges

against him should be dismissed. The trial court held a hearing on that motion, and

thereafter denied the same. Edvalson now appeals from that order.

      The Fifth Amendment’s Double Jeopardy Clause “protects against a second

prosecution for the same offense after acquittal, a second prosecution for the same

offense after conviction, and multiple punishments for the same offense.” Moser v.

Richmond County Bd. of Commissioners, 263 Ga. 63 (1) (428 SE2d 71) (1993), citing

North Carolina v. Pearce, 395 U. S. 711, 717 (I) (89 SCt 2072, 23 LE2d 656) (1969).

See also Alden v. State, 314 Ga. App. 439, 440 (724 SE2d 451) (2012). In their

respective briefs, both Edvalson and the State focus on the Double Jeopardy Clause’s

prohibition against multiple punishments, but in doing so, neither party acknowledges

the “fundamental principle that an accused must suffer jeopardy before he can suffer

double jeopardy.” Serfass v. U. S., 420 U. S. 377, 393 (IV) (95 SCt 1055, 43 LE2d

265) (1975). Thus, neither party addresses the threshold question presented by this

appeal, which is whether jeopardy attached as a result of Edvalson’s pretrial bond

revocation proceeding. See Haynes v. State, 245 Ga. 817, 818 (268 SE2d 325) (1980)

                                         6
(“[t]he threshold question to be addressed in any case involving double jeopardy is

whether jeopardy has attached to defendant during the proceedings which he contends

preclude further prosecution”).

      “In the case of a jury trial, jeopardy attaches when a jury is empaneled and

sworn. In a non-jury trial, jeopardy attaches when the court begins to hear evidence.”

Serfass, 420 U. S. at 388 (III) (citations omitted). See also Hoke v. State, 326 Ga.

App. 71, 74 (1) (755 SE2d 876) (2014) (although jury had been selected, it had not

been sworn, and therefore jeopardy had not attached at the time the court dismissed

the jury). Thus, “jeopardy does not attach, and the constitutional prohibition [against

double jeopardy] can have no application, until a defendant is put to trial before the

trier of facts, whether the trier be a jury or a judge.” Serfass, 420 U. S. at 388 (III)

(citations and punctuation omitted). Accordingly, jeopardy does not attach at any

pretrial proceeding, including a bond revocation hearing. See Wells v. Stynchcombe,

231 Ga. 199, 201 (200 SE2d 745) (1973) (a pretrial hearing that does not involve a

determination as to the guilt or innocence of the accused does not trigger jeopardy);

See Strickland v. State, 300 Ga. App. 898, 901 (686 SE2d 486) (2009) (a hearing on

the State’s motion to modify the defendant’s bond conditions was not a “prosecution

[ ] for the purposes of double jeopardy” and did not cause jeopardy to attach); Smith

                                           7
v. State, 171 Ga. App. 279, 282 (319 SE2d 113) (1984) (“jeopardy [does] not attach

to a preliminary hearing”). Given that Edvalson has not yet suffered jeopardy, he has

no basis for asserting a claim of double jeopardy.

      Moreover, because jeopardy does not attach until the defendant is put to trial,

the Double Jeopardy Clause’s prohibition on multiple punishments forbids only the

imposition of multiple punishments following the defendant’s conviction upon one

or more of the indicted crimes. See Whalen v. United States, 445 U. S. 684, 688 (I)

(100 SCt 1432, 63 LEd2d 715) (1980) (a claim that a defendant’s sentence violates

the double jeopardy clause’s prohibition on multiple punishments presents “the

question whether punishments imposed by a court after a defendant’s conviction on

criminal charges are unconstitutionally multiple”) (citations omitted; emphasis

supplied). See also State v. Marlowe, 277 Ga. 383-384 (1) (589 SE2d 69) (2003)

(discussing whether the Double Jeopardy Clause requires the merger of the

defendant’s convictions on multiple crimes, so as to avoid the prohibition on multiple

punishments). As Edvalson’s petition for habeas corpus implicitly recognized, it is

the Fifth Amendment’s Due Process Clause, not its Double Jeopardy Clause, that

protects a defendant from pretrial punishment. See Bell v. Wolfish, 441 U. S. 520,

535-536 (II) (B) (99 SCt 1861, 60 LEd2d 447) (1979) (“under the Due Process

                                          8
Clause, a [defendant] may not be punished prior to an adjudication of guilt in

accordance with due process of law”). Thus, the appropriate remedy for pretrial

punishment (including bond conditions that are punitive, rather than remedial) is to

bring a petition for habeas corpus or other proceeding under the Due Process Clause.

See Edvalson, 298 Ga. at 628 (noting Edvalson’s contention that the amended bond

conditions violated his due process rights because, inter alia, they were “punitive

[rather than remedial] in nature”).3 See also Jones v. Grimes, 219 Ga. 585, 587 (1) (b)

(134 SE2d 790) (1964) (the appropriate remedy for excessive bail is a petition for a

writ of habeas corpus).

      As the foregoing demonstrates, Edvalson has not suffered jeopardy and

therefore he cannot assert a claim of double jeopardy. In reaching this conclusion, we

note that three relatively recent decisions from this Court have analyzed a defendant’s

challenge to the denial of his motion to dismiss and plea of former jeopardy that, like

Edvalson’s plea in bar, was based on the argument that pretrial bond conditions

constituted punishment within the meaning of the Double Jeopardy Clause. See


      3
         As noted supra, the Supreme Court of Georgia rejected Edvalson’s claim that
the amended bond conditions violated his due process rights by subjecting him to
pretrial punishment, and both Edvalson and this Court are bound by that holding. See
Ross v. State, 310 Ga. App. 326, 327 (713 SE2d 438) (2011).

                                          9
Alden, 314 Ga. App at 440, n. 10 (analyzing defendant’s claim that allegedly punitive

bond conditions entitled him to a plea in bar and noting that because the defendant

had not been tried, and therefore had been neither convicted nor acquitted of the

indicted crimes, only the Double Jeopardy Clause’s protection against multiple

punishments could arguably apply to that claim); Strickland, 300 Ga. App. at 898-899

(same); Bozzuto v. State, 276 Ga. App. 614, 616 (1) (624 SE2d 166) (2005)

(analyzing defendant’s claim that the trial court’s imposition of allegedly punitive

bond conditions and subsequent revocation of his bond for violating those conditions

“subjected him to multiple punishments in violation of . . . double jeopardy). To the

extent that either Alden, Strickland, or Bozzuto can be read as affording a defendant

a right to assert a plea of former jeopardy based on any pretrial punishment, including

any allegedly punitive conditions imposed on a defendant’s pretrial bail bond, those

holdings are disapproved.

      For the reasons set forth above, we affirm the order of the trial court denying

Edvalson’s motion to dismiss and plea of former jeopardy.

      Judgment affirmed. Doyle, C. J., Andrews, P. J., Barnes, P. J., Miller, P. J.,

Ellington, P. J., Phipps, P. J., Dillard, McFadden, Boggs, Ray, McMillian, Rickman,

Mercier, and Peterson, JJ., concur.

                                          10
