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: June 11, 2024
S23A0524. HOSTETLER v. THE STATE et al.
COLVIN, Justice.
Appellant Rachel Hostetler was convicted of one misdemeanor
count of driving under the influence of alcohol (“DUI”) in violation of
OCGA § 40-6-391 (a).1 During the pendency of her probation,
1 Appellant was involved in a single-vehicle collision that occurred on
April 15, 2017. On June 21, 2017, she was charged with one count of driving
under the influence under OCGA § 40-6-391 (a) by formal accusation in Floyd
County. Following a six-person jury trial from October 11 to October 12, 2017,
Appellant was convicted of one count of DUI. On October 12, 2017, she was
sentenced to 12 months in prison with 48 hours to serve, but her sentence was
suspended pending her appeal. Appellant filed a motion for new trial on
October 13, 2017, which she amended on February 8, 2018. The trial court
denied Appellant’s motion, as amended, on June 12, 2018, and Appellant
appealed to the Court of Appeals on July 5, 2018. The Court of Appeals
affirmed in an unpublished decision on June 25, 2019, but following
Appellant’s unsuccessful motion for reconsideration, it issued an unpublished
substitute opinion on July 16, 2019. Appellant then filed a petition for writ of
certiorari with this Court on August 5, 2019. Prior to our decision on
Appellant’s petition for certiorari, Appellant retained new counsel, who filed
an extraordinary motion for new trial with the trial court on November 5, 2019,
notwithstanding that remittitur had not yet issued. Following our denial of
Appellant’s petition for certiorari by unpublished order on March 26, 2020, and
Appellant filed a petition for a writ of habeas corpus alleging that
her former counsel, who had represented her both at trial and on
appeal, was constitutionally ineffective under both the United
States Constitution and the Georgia Constitution. Before the habeas
court ruled on her petition, however, Appellant completed her
sentence, and the habeas court dismissed her petition as moot.
We granted Appellant’s application for a certificate of probable
cause to appeal the dismissal of her petition to determine whether
she continues to suffer from adverse collateral consequences of her
challenged conviction, notwithstanding the completion of her
sentence. Specifically, we asked the parties to address whether
remittitur to the trial court, Appellant filed a renewed and amended
extraordinary motion for new trial on July 16, 2020, which the trial court
dismissed on July 28, 2020.
On August 1, 2020, Appellant began to serve her sentence. On November
2, 2020, Appellant filed a petition for a writ of habeas corpus in Floyd County
Superior Court. Notwithstanding the completion of her probation on July 31,
2021, Appellant amended her petition on September 20, 2021, and filed a brief
in support on September 24, 2021. Following an evidentiary hearing on
September 24, 2021, the habeas court dismissed Appellant’s amended petition
as moot on December 16, 2022. On January 17, 2023, Appellant applied to this
Court for a certificate of probable cause to appeal the dismissal of her habeas
petition, which this Court granted on November 3, 2023. The matter was
docketed to the term of this Court beginning in December 2023 and submitted
on the briefs.
2
Appellant’s potential to receive an enhanced recidivist sentence for
a subsequent DUI conviction constituted such a consequence. We
also asked the parties to consider whether Appellant “has
demonstrated and must demonstrate” this consequence “in the
record.” The answers to these questions determine whether
Appellant remains “restrained of h[er] liberty” within the meaning
of OCGA § 9-14-1 (c), and accordingly whether her petition is moot.
After careful consideration, we conclude that Appellant’s petition is
not moot, as explained below. We accordingly vacate the order of the
habeas court and remand for further proceedings consistent with
this opinion.
1. Following a two-day jury trial, Appellant was convicted of
DUI and sentenced to 12 months in prison with 48 hours to serve.2
2 Appellant’s sentence also included a $600 fine. As conditions of her
probation, Appellant was required to waive certain of her rights under the
Fourth Amendment to the United States Constitution; to avoid consumption
of alcoholic beverages and narcotics or dangerous drugs unless lawfully
prescribed; to avoid association with persons that consume alcohol or illegal
drugs and places where alcohol or illegal drugs are present; to perform 40
hours of community service; and to pay probation fees. Appellant’s driver’s
license was also suspended by operation of law under OCGA § 40-5-63 (a) (1)
for a term of 12 months but was reinstated after approximately four months,
3
Appellant began serving her sentence on August 1, 2020, and on
November 2, 2020, while still on probation, she filed a petition for a
writ of habeas corpus.
In her petition, Appellant argued that her potential to receive
a recidivist sentence under Georgia’s DUI statute, see OCGA
§ 40-6-391 (c) (2), constituted an adverse collateral consequence of
her conviction. Before the habeas court ruled on her petition,
however, Appellant completed her probation on July 31, 2021.
Appellant subsequently amended her petition to emphasize that she
continued to suffer collateral consequences of her conviction, even
after the completion of her sentence.
The habeas court held an evidentiary hearing on Appellant’s
amended petition, during which Appellant testified regarding the
collateral consequences of her conviction, and Appellant’s counsel
argued that Appellant’s potential to receive a recidivist sentence
prevented her petition from being rendered moot. Notwithstanding
following Appellant’s completion of a DUI Alcohol Risk Reduction Program and
her payment of the associated restoration fee.
4
this testimony and argument, the habeas court dismissed her
petition as moot on December 16, 2022. In its order, the court
considered some of the alleged adverse consequences of Appellant’s
conviction,3 but it did not specifically rule on whether Appellant’s
potential to receive a recidivist sentence constituted a restraint on
her liberty within the meaning of OCGA § 9-14-1 (c).
2. (a) OCGA § 9-14-1 (c) provides that “[a]ny person restrained
of his liberty as a result of a sentence imposed by any state court of
record may seek a writ of habeas corpus to inquire into the legality
of the restraint.” With respect to felony convictions, we have held
that a convicted person may remain “restrained of his liberty,” even
3 Appellant testified that as a result of her conviction, she had difficulty
finding employment in her chosen profession, suffered anxiety and incurred
costs related to treatment, incurred travel costs during the suspension of her
license, and was subsequently required to procure different automotive
insurance at a much higher monthly rate, which, along with various fines and
fees she was required to pay, depleted her “nest egg.” Appellant has also asked
us to reverse the habeas court’s conclusion that these alleged consequences
“d[id] not amount to restraints on [her] liberty” within the meaning of OCGA
§ 9-14-1 (c). Because we hold that Appellant’s petition was not moot based on
her potential to receive a recidivist sentence, we decline to reach these issues,
and we make no decision regarding whether Appellant’s $600 fine, which may
be returned to her if her conviction is invalidated, prevents her claim from
being moot.
5
after his period of incarceration is complete if he continues to suffer
from adverse collateral consequences of his conviction. See Tharpe
v. Head, 272 Ga. 596, 597 (533 SE2d 368) (2000) (“Present
confinement is not required to show a restraint of liberty; it is
sufficient restraint that the petitioner is suffering adverse collateral
consequences flowing from his conviction. . . . The adverse collateral
consequences may continue past the completion of any sentence
resulting from the allegedly invalid conviction[.]”). The same
principle applies to misdemeanor convictions. See Turner v. State,
284 Ga. 494, 495 (1) (668 SE2d 692) (2008) (explaining in a
misdemeanor case that “the fact that a state sentence has been
completely served is not a bar to attacking it through habeas corpus
even though the petition is not initially filed until after the sentence
is completed”), overruled on other grounds by Nazario v. State, 293
Ga. 480, 489 (2) (d) (746 SE2d 109) (2013). So long as a person
continues to suffer adverse consequences of his conviction, as
explained below, his habeas petition is not moot. See Tharpe, 272
Ga. at 598 (holding that because the defendant “is currently
6
suffering adverse collateral consequences from [his] conviction[,] . . .
his petition is not moot). See also Parris v. State, 232 Ga. 687, 690
(208 SE2d 493) (1974) (explaining that the “concepts of restraints on
liberty and of non-mootness merge at the point where we consider
collateral consequences of an allegedly void conviction even though
the sentence be completely served”).
A lingering adverse collateral consequence of a conviction
exists where the petitioner “has a substantial stake in the judgment
of conviction which survives the satisfaction of the sentence imposed
on him.” Hardison v. Martin, 254 Ga. 719, 721 (1) (334 SE2d 161)
(1985) (quoting Carafas v. LaVallee, 391 U.S. 234, 237 (88 SCt 1556,
20 LE2d 554) (1968) (citation and punctuation omitted)). This
“substantial stake” can take many forms. A person convicted of a
felony may be barred by statute from participating in certain
professions or from serving as a juror. See Parris, 232 Ga. at 690
(quoting Carafas, 391 U.S. at 237). Importantly, we have recognized
that “[a]dverse collateral consequences can be found through
recidivist statutes, parole consequences, and difficulties in
7
reassociation with a free society after release from prison.” Atkins v.
Hopper, 234 Ga. 330, 332 (2) (216 SE2d 89) (1975) (emphasis
supplied). See also Tharpe, 272 Ga. at 597 (quoting Atkins, 234 Ga.
at 332). These consequences may even include “the stigma and
burden of an invalid sentence.” Tharpe, 272 Ga. at 597.
The adverse collateral consequences of felony convictions are
so well recognized that we now simply presume they exist. See
Atkins, 234 Ga. at 333 (2) (“To require a petitioner to allege adverse
collateral consequences of a felony conviction is in effect requiring
him to do a useless act.”); Turner, 284 Ga. at 497 (1) (explaining that
in Atkins, “[t]his Court determined that it was unnecessary to
require a habeas petitioner to allege adverse collateral consequences
of a felony conviction”); Abebe v. State, 304 Ga. 614, 615 (820 SE2d
678) (2018) (citing Atkins for the proposition that it is “unnecessary
for [a] habeas petitioner to allege adverse collateral consequences of
a felony conviction”).
We do not apply this same presumption to misdemeanor
convictions, however, and instead require petitioners to allege and
8
demonstrate the adverse consequences of their convictions. See
Turner, 284 Ga. at 497 (1) (declining to extend the presumption of
adverse collateral consequences to a person convicted of a
misdemeanor); Abebe, 304 Ga. at 615 (“A habeas petitioner who has
completely served her misdemeanor sentence must demonstrate
that she is suffering adverse collateral consequences flowing from
her conviction.” (citation and punctuation omitted)). 4 In a line of
cases going back to the late 1970s, we have required allegations of
adverse collateral consequences to be demonstrated in the record.
See Hart v. Burford, 304 Ga. 818, 818-819 (822 SE2d 237) (2018);
Abebe, 304 Ga. at 615; Turner, 284 Ga. at 496 (1); In re I.S., 278 Ga.
859, 862 (607 SE2d 546) (2005); Baker v. State, 240 Ga. 431, 431 (241
SE2d 187) (1978), disapproved on other grounds by Abebe, 304 Ga.
at 615 n.2.
(b) Appellant argues that as a result of her allegedly invalid
4 Though we declined in Turner to extend the presumption of collateral
consequences arising from felony convictions to misdemeanor convictions, we
never explained why. See Turner, 284 Ga. at 497 (1). Appellant now asks us to
overturn Turner, but we decline to do so here because we can resolve
Appellant’s claim without evaluating the reasoning of that case.
9
conviction, she will be subject to an enhanced recidivist sentence if
she is convicted of a second DUI, and that this potential consequence
constitutes a restraint on her liberty which prevents her petition
from being moot. See OCGA § 40-6-391 (c) (2) (prescribing an
enhanced sentence for a second DUI conviction). For the reasons
that follow, we agree.
We have previously recognized that a habeas petitioner can
challenge a prior conviction when the prior conviction was used to
enhance the petitioner’s sentence for a subsequent conviction. See
Parris, 232 Ga. at 689-690 (holding that the petitioner’s challenge to
his felony conviction was not moot even though he had completed
his sentence, where the petitioner was serving a separate,
subsequent sentence that had been enhanced due to the prior
conviction). See also Tharpe, 272 Ga. at 598 (holding that the
petitioner’s challenge to his habitual traffic violator conviction was
not moot, notwithstanding the completion of his sentence, because
that conviction had been used against him in the penalty phase of a
subsequent death-penalty murder trial). In such cases, the sentence
10
enhancement is a clear “adverse collateral consequence[ ]” of the
prior conviction, and so a habeas petition challenging the prior
conviction is “not moot.” Id.
We have also recognized that the consequences of a felony
conviction can include potential future enhanced sentences. In
Atkins, we held that a petitioner’s conviction and sentence for armed
robbery constituted a distinct restraint on his liberty, even though
he was serving a concurrent life sentence for murder. Atkins, 234
Ga. at 332 (2). We further held that we could presume the adverse
collateral consequences of a felony conviction, which can include
“recidivist statutes, parole consequences, and difficulties in
reassociation with a free society after release from prison.” Id. 5 See
5 Though decisions of the United States Supreme Court are not binding
on us on matters of mootness under Georgia law, we note that it engaged in
similar reasoning in Rutledge v. United States, 517 U.S. 292 (116 SCt 1241,
134 LE2d 419) (1996). See Rutledge, 517 U.S. at 302 (III) (“The separate
conviction, apart from the concurrent sentence, has potential adverse collateral
consequences that may not be ignored. For example, the presence of two
convictions on the record may delay the defendant’s eligibility for parole or
result in an increased sentence under a recidivist statute for a future offense.”). See also McAlister v. Clifton, 313 Ga. 737, 745 (873 SE2d 178) (2022) (Peterson,
J., concurring) (noting that we have never explored a Georgia-specific basis for
our mootness doctrine).
11
also In the Interest of M. F., 305 Ga. 820, 821-822 (828 SE2d 350)
(2019) (holding that courts may presume that adverse collateral
consequences arise from an adjudication of delinquency because
such an adjudication could affect the juvenile in future juvenile or
criminal proceedings, including sentencing for a future crime).
Though not expressly stated by the Atkins Court, each of the adverse
collateral consequences it identified had the potential to affect the
petitioner in the future: he could commit a subsequent crime and
receive an enhanced recidivist sentence; his armed robbery
conviction could be used against him in a parole hearing for his
felony murder conviction; or, if paroled, his separate armed robbery
conviction could pose further legal difficulties when reintegrating
with society. And because the petitioner’s armed robbery conviction
was a “restraint” on his liberty in these ways, among others, we
allowed his habeas challenge to that conviction to proceed before any
of these potential future consequences were realized. Atkins, 234 Ga.
at 332-333 (2).
The principles relied on in Atkins apply to the misdemeanor
12
context as well. Perhaps ironically, because a misdemeanor sentence
is often shorter than the time it takes a court to adjudicate a habeas
proceeding, a habeas petitioner challenging a misdemeanor
conviction will frequently have completed her sentence and be
suffering only collateral consequences by the time the petition is
before the court. See e.g., OCGA § 40-6-391 (c) (1)-(3) (prescribing a
12-month maximum sentence for a first, second, or third DUI within
the applicable time period).
This brings us to Appellant’s case. She filed her habeas action
on November 2, 2020, but it was not decided by the habeas court
until December 16, 2022 — 774 days later. Appellant had finished
serving her sentence by then. But we have no trouble concluding
that she still suffered adverse legal collateral consequences of her
conviction: among other things, her DUI conviction could be used to
enhance her sentence on a future conviction.6 This possibility is
6 Appellant has argued, and we agree, that the potential of the State to
use Appellant’s challenged conviction as substantive evidence against her in a
future DUI trial also constitutes a lingering adverse consequence of her
conviction. See OCGA § 24-4-417 (a) (“In a criminal proceeding involving a
13
enough to put a restraint on Appellant’s liberty, such that her
petition is not moot.7 See Tharpe, 272 Ga. at 598; Atkins, 234 Ga. at
332-333 (2). In sum, we hold that an appellant’s potential to receive
a recidivist sentence under Georgia law for a subsequent conviction
as a result of a challenged misdemeanor conviction is an adverse
collateral consequence of that conviction and thus a restraint on the
appellant’s liberty within the meaning of OCGA § 9-14-1 (c).
(c) As a result of our holding in Division (2) (b), we must
prosecution for a violation of [OCGA §] 40-6-391, evidence of the commission of
another violation of [OCGA §] 40-6-391 on a different occasion by the same
accused shall be admissible [under certain conditions].”).
7 Though we are not bound by the United States Supreme Court on
questions of mootness under Georgia law, we note that it has engaged in
similar reasoning when considering direct appeals to misdemeanor
convictions. In Sibron v. New York, 392 U.S. 40 (88 SCt 1889, 20 LE2d 917)
(1968), the Supreme Court held that a litigant’s direct appeal was not moot
under the case-or-controversy requirement of the United States Constitution
even though the appellant had completed his misdemeanor sentence. Cf.
Sibron, 392 U.S. at 58 (I). The Sibron Court stated that “a criminal case is moot
only if it is shown that there is no possibility that any collateral legal
consequences will be imposed on the basis of the challenged conviction.” Id. at
57 (I). We need not go so far today, but like the Sibron Court, we are concerned
that a holding contrary to the one we have adopted here would preclude review
of “‘minor’ offenses which carry only short sentences.” Id. at 52 (I). As the
Sibron Court aptly put it, “a [s]tate may not effectively deny a convict access
to its appellate courts until he has been released and then argue that his case
has been mooted by his failure to do what it alone prevented him from doing.”
Id. at 53 (I).
14
consider whether Appellant has demonstrated and must
demonstrate her potential to receive a recidivist sentence “in the
record” as we have stated in past misdemeanor cases. See, e.g.,
Abebe, 304 Ga. at 615. After consideration of this issue, we reiterate
that petitioners must demonstrate this potential in the record, see
id., and hold that they may accomplish this requirement by
identifying an applicable Georgia sentencing statute in their written
filings or in the argument portion of a hearing before the habeas
court.
This holding is dictated by our holding above. If we were to
require misdemeanants to produce certified copies of charging
documents or of an enhanced sentence in a subsequent case, we
would undermine the reasons for holding that the potential to
receive a recidivist sentence constitutes an adverse consequence in
the first instance. See Division 2 (b), supra. Requiring petitioners to
wait for a subsequent offense to be charged may lead to their habeas
claims avoiding review until an enhanced sentence has been
received and served. And nothing in our previous cases requires a
15
contrary result; a review of these cases reveals petitioners who
either failed to allege collateral consequences in the first instance or
petitioners who failed to support allegations of collateral
consequences with any evidence whatsoever and whose cases were
determined to be moot on that basis. See Hart, 304 Ga. at 819-820
(holding that the appellant had failed to demonstrate adverse
consequences of his misdemeanor conviction “in the record” where
the appellant alleged at oral argument before this court that his
sentence remained incomplete because he had not yet paid a
particular fine, but the State averred that the appellant’s sentence
had been completed in full, and there was no evidence in the record
that the fine remained outstanding); Abebe, 304 Ga. at 615 (holding
that the appellant’s case was moot because she had failed to allege
any collateral consequences of her misdemeanor DUI conviction);
Turner, 284 Ga. at 496 (1) (holding that the appellant failed to
demonstrate adverse collateral consequences where the appellant
failed to provide any evidentiary support for his argument that his
difficulty in finding employment was a result of his challenged
16
convictions); Baker, 240 Ga. at 431 (holding without discussion that
the appellant had not shown adverse collateral consequences on the
record).
(d) Under the holdings above, Appellant’s case is not moot.
Appellant argued that she suffered the potential to receive an
enhanced recidivist sentence under Georgia’s DUI laws in her
original petition for a writ of habeas corpus. She reiterated this
claim in her amended petition and argued it before the habeas court.
Because Appellant made this allegation and supported it by
identifying particular Georgia statutes, she has demonstrated an
adverse consequence in the record, and this consequence is a
restraint on her liberty that prevents her case from being moot. We
therefore vacate the order of the habeas court and remand
Appellant’s case for further proceedings consistent with this opinion.
Judgment vacated and case remanded. All the Justices concur,
except McMillian, J., disqualified.
17