Tolbert v. State (2026)

Case details
Full caption
TOLBERT v. THE STATE. A25A1439 January 22
Country
United States
Jurisdiction
Georgia (GA)
Court
Georgia Supreme Court
Decided
2026
Panel
McFadden (P.J.); Pipkin (J.)
Opinion
Per curiam
TOLBERT v. THE STATE., --- S.E.2d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 178716Only the Westlaw citation is currently available.Court of Appeals of Georgia.TOLBERTv.THE STATE.A25A1439|January 22, 2026MCFADDEN, P. J., HODGES and PIPKIN, JJ.OpinionHodges, Judge.*1 In November 2012, a jury found Terrell Tolbert guiltyof aggravated assault and possession of a firearm during thecommission of a felony.1 Following a hearing held in May2022, the trial court entered an order denying Tolbert's motionfor new trial in July 2022. Tolbert appeals, claiming that thetrial court erred and that he received ineffective assistance oftrial counsel in various ways. All of Tolbert's enumerationsof error, however, have been abandoned because his appellatecounsel, J. Mark Shelnutt, has failed to comply with therules of this Court. While we have attempted to reachTolbert's claims of error where possible, every enumerationappears to be unsupported, belied by the record, or otherwiseunpersuasive. Accordingly, we find no error and affirm.Viewing the evidence in the light most favorable to theverdict,2 the record shows that in June 2011, Tolbert walkedinto a store and asked the manager if he could view the store'ssurveillance video. While at the store, Tolbert explained thathe wanted to see the video because he had dropped a bagoutside the store and another man, the eventual victim, hadsupposedly picked it up. Tolbert then explained that he wasleaving but would be “coming back to straighten it [out].”He indicated that he was going to get his “strap,” meaninga firearm. Approximately 30 to 45 minutes later, Tolbertreturned to the area and confronted the victim. He walked upto the victim and said, “[e]ither you're going to give me mymarijuana ... or my money.” Tolbert then pulled out a revolverand pointed it at the victim. The victim pushed Tolbert awayin an attempt to get inside a nearby car, and Tolbert respondedby saying, “[i]f you touch me again, I'm going to shoot you.”The victim and Tolbert then struggled over the revolver andthe weapon fired, missing the victim. As the victim tried to getinto the car, Tolbert fired the revolver again, this time strikingthe victim in the leg. The victim got into the car and left thescene. Tolbert walked down the street carrying his revolver.A few days after the shooting, law enforcement interviewedthe victim and he was able to identify Tolbert as his shooter.Tolbert was indicted for aggravated assault and possessionof a firearm during the commission of a felony, and a juryconvicted him of both charges. Tolbert was sentenced as arecidivist under OCGA § 17-10-7(a) and (c). Tolbert timelyfiled a motion for new trial, later amended, which the trialcourt denied. He now appeals his convictions and the trialcourt's denial of his motion for new trial.1. We note at the outset that Tolbert was convicted inNovember 2012 and his appeal was first docketed more than12 years later in March 2025.3 The trial court did not hearTolbert's motion for new trial until May 2022, more than nineyears after his conviction. While the trial court notes thatTolbert had at least four post-conviction attorneys and therewere delays associated with the continuances requested byhis successive counsel, the record also demonstrates that notranscript had been requested until April 2019, more than sixyears after Tolbert's conviction.*2 In March 2012, the Supreme Court considered an appealfrom a motion for new trial which took more than fifteen yearsto resolve. See Shank v. State, 290 Ga. 844, 849(5)(c) (725SE2d 246) (2012). In deciding that case, the Supreme Courtissued the following admonition:We do not condone thisinordinate delay in the motionfor new trial proceeding. ThisCourt is unfortunately seeingsuch extraordinary post-conviction,pre-appeal delays with greaterfrequency[.] ... These delays put atrisk the rights of defendants and crimevictims and the validity of convictionsobtained after a full trial. We thereforereiterate that it is the duty of allthose involved in the criminal justicesystem, including trial courts andprosecutors as well as defense counseland defendants, to ensure that the
TOLBERT v. THE STATE., --- S.E.2d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.2appropriate post-conviction motionsare filed, litigated, and decided withoutunnecessary delay.Id. While Tolbert does not raise any due process challengerelated to the inordinate delay in his case, we take thisopportunity to reiterate the Supreme Court's admonition inShank and remind all parties involved in the criminal legalsystem that it is their duty to ensure that such delays do notoccur in the future. See id.2. Turning to the merits of this appeal, we note that Tolberthas identified 15 enumerations of error. With regard to everyenumeration, Tolbert has failed in multiple ways to followCourt of Appeals Rule 25(a), setting forth the requirementsfor appellate briefing. In every enumeration, Tolbert has failedinclude any citation to relevant authority beyond occasionallyciting overarching principles of law. “Where an appellant listsan enumeration of error but, in support of that enumeration,merely sets forth the applicable standard of review withoutany substantive discussion, such enumeration will be deemedabandoned.” Podlin v. Cichowski, 375 Ga. App. 481, 483(915 SE2d 662) (2025); see also Court of Appeals Rule 25(d)(1) (“Any enumeration of error that is not supported in thebrief by citation of authority or argument may be deemedabandoned.”). In this case, Tolbert's brief, at best, containsgeneral principles of law applicableto the issue at hand, but then simplyrecites his version of certain factswithout ever applying any particularlegal authority to the specific factsand circumstances of this case. Sufficeit to say, rhetoric is not a substitutefor cogent legal analysis, which is,at a minimum, a discussion of theappropriate law as applied to therelevant facts.(Citation, punctuation, and emphasis omitted). Podlin, 375Ga. App. at 483.Worse, Tolbert's brief is replete with citations to authoritywhich are irrelevant, cited for propositions that areunsupported (or even contrary to) the actual language in thecases, or cited as authority despite having been overturned;in some instances, the brief includes quotations which donot exist in the cases cited. Moreover, we have identified atleast two instances where Tolbert materially misrepresents therecord on appeal. These violations of our rules have frustratedthis Court's review, and we conclude that the enumerationsare abandoned as a result. See Brittain v. State, 329 Ga. App.689, 704(4)(a) (766 SE2d 106) (2014) (refusing to addressarguments appellant raised but did not support with citationsto authority or meaningful argument). Nevertheless, havingreviewed Tolbert's arguments to the extent possible, we findthem unavailing for the following reasons.*3 3. Tolbert first asserts that the evidence was insufficient tosupport his convictions for aggravated assault and possessionof a firearm by a convicted felon. As best as we can surmise,Tolbert argues that the evidence was insufficient becausethere was credible evidence of an accident or that his conductwas justified. Beyond citing Jackson for the general ruleregarding the sufficiency of the evidence, this enumerationonly relies on two pieces of substantive authority. Tolbertasserts in his brief that[i]n similar cases, Georgia appellatecourts have found the evidenceinsufficient to support convictionswhen the alleged victim is theaggressor and when the defendant actsin perceived self-defense or accident.See Harris v. State, 252 Ga. App. 849[(557 SE2d 452)] (2001) (reversingconviction where accident was a viabledefense); Ross v. State, 279 Ga. 365[(614 SE2d 31)] (2005) (discussing theprejudicial effect of character evidencewhen accident or justification is atissue).(Punctuation omitted). Our review of the Harris case showsthat it has nothing do with sufficiency of the evidence anddoes not discuss self-defense or accident. See generallyHarris, 252 Ga. App. at 849. Similarly, in the Ross case, theSupreme Court discussed neither accident nor justification,nor did it analyze sufficiency of the evidence in anysubstantive way. See generally Ross, 279 Ga. at 365.4 Wefind that neither of these case citations support the propositionof law alleged, and because no other authority cited supportsTolbert's position, he has not demonstrated error and this
TOLBERT v. THE STATE., --- S.E.2d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.3enumeration is abandoned for the reasons set forth in Division2.4. Tolbert next argues that the trial court erred by failing toinstruct the jury on the defense of accident. Tolbert againrelies on the Harris case to assert that “the failure to givean accident charge in a case where the evidence supportsthat theory constitutes reversible error.” As noted in Division3, the Harris case has nothing to do with accident. Moretroubling, Tolbert asserts that: “Georgia appellate courts haveheld that ‘[w]here the defendant's sole defense is accident andthere is evidence to support it, it is reversible error for the trialcourt to fail to give a charge on accident.’ ” Tolbert attributesthis direct quote to both Sanders v. State, 283 Ga. 372, 375(659 SE2d 376) (2008), and Shaw v. State, 292 Ga. 871 (742SE2d 707) (2013). Our review of these cases, however, showsneither case discusses the defense of accident, nor contains thequote attributed to them. See generally Sanders, supra; Shaw,supra. Beyond the above fictive precedent, Tolbert simplyrelies on overarching principles of law not applied to the factsof this case. Consequently, this enumeration is also abandonedfor the reasons set forth in Division 2.5. Tolbert avers that the trial court erred in giving ajustification charge that omitted the phrase “forcible felony,”thereby — in his view — rendering the defense incompleteand misleading. We note that Tolbert has failed to cite therecord for the allegedly deficient jury instruction, or evenquote the allegedly erroneous language. Because Tolbert hasnot provided a sufficient citation to the record to evaluatehis enumeration, it is abandoned. See Hudson v. State, 246Ga. App. 335, 335-36(2) (539 SE2d 860) (2000) (concludingthat an appellant waived review of his objection to a juryinstruction where, among other violations of our rules, theappellant failed to provide a record cite to an allegedlyobjectionable jury instruction); see also Arnold v. State,262 Ga. App. 61(1) (584 SE2d 662) (2003) (“As we havereiterated time and time again, this Court will not cull therecord in search of error on behalf of a party.”) (citation andpunctuation omitted). Moreover, we note that Tolbert solelyrelies on Laney v. State, 184 Ga. App. 463, 467(2) (361 SE2d841) (1987), for the proposition that a “jury must be instructednot only on justification generally, but also the particular‘forcible felony’ that underlies the defendant's use of force.”However, this proposition of law — in Laney and generally— has been long overruled. See Holmes v. State, 273 Ga.644, 647(4) (543 SE2d 688) (2001). Tolbert cited Laneywithout cautioning us of the decades-old negative treatmentby the Supreme Court. Because Tolbert has failed to citeany authority to support his contention that the trial court'sinstruction on justification was erroneous, this enumerationhas left this Court with nothing to review.*4 6. Tolbert next argues that the trial court erred by allowinga photo line-up to go out with the jury in violation of thecontinuing witness rule. Specifically, Tolbert complains thatthe jury was impermissibly allowed to have a photo line-up containing the victim's handwritten comment that Tolbertwas “the [explicative] that shot [him]” while they deliberated.As with the prior divisions, this enumeration is abandonedbecause of Tolbert's reliance on inapt authority. For example,Tolbert purports to directly quote Wilson v. State, 259 Ga. 55(376 SE2d 676) (1989), for the proposition that such evidenceviolates the continuing witness rule because such exhibits“can unfairly bolster the credibility of the witness in the eyesof the jury.” Wilson, however, has nothing to do with thecontinuing witness rule, and nothing resembling the attributedquote exists in the opinion. See generally Wilson, supra.7. Tolbert argues the trial court erred by overruling anobjection to the State calling him a “drug dealer” in closingarguments. Tolbert cites the trial transcript and claims theprosecutor told the jury “[Tolbert is] a convicted felon. He's adrug dealer” and argued such a statement was improper. Thisargument, too, fails for multiple reasons. First, Tolbert hasinexplicably not provided any record citation to his purportedobjection or the trial court overruling the same. As noted inDivision 2, this Court will not search for specific referencesand may not consider enumerations that are not supportedby proper citations to the record. Sloans v. State, 360 Ga.App. 256, 257 (861 SE2d 130) (2021); Court of Appeals Rule25(d)(1)(i). The Supreme Court of Georgia has repeatedlyheld that “the defendant's failure to object to the State'sclosing argument waives his right to rely on the allegedimpropriety of that argument as a basis for reversal.” (Citationand punctuation omitted.) Myers v. State, 313 Ga. 10, 14(2)(867 SE2d 134) (2021). As such, even if Tolbert could showthe prosecutor's argument was impermissible, his failure todemonstrate by the record that he objected to the purportedlyimproper statement leaves this Court with nothing to review.Moreover, and more troubling, the specific quote that Tolbertattributed to the State in his brief is not reflected in thetranscript on the page he cited to for the quote. Instead,the State stated “[h]e's a convicted felon. A convicted felonwho had a firearm[,]” and we caution his appellate attorneyShelnutt that the misrepresention of evidence in the recordis a violation of State Bar Rules. Flott v. Se. Permanente
TOLBERT v. THE STATE., --- S.E.2d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.4Med. Group, 274 Ga. App. 622, 623(1) (617 SE2d 598)(2005). Even if this argument is not waived, and the briefaccurately cited the record, this enumeration would still beabandoned because the brief relies wholly on unsupportedstatements of law. Tolbert relies on Shaw for the contentionthat “Georgia law prohibits such prosecutorial misconduct[,]”when that case has nothing to do with closing argumentsor prosecutorial misconduct. See Shaw, 292 Ga. at 871.Likewise, Tolbert claims that in Collier v. State, 266 Ga. App.345 (596 SE2d 795) (2004), this Court reversed a convictionafter a prosecutor made impermissible closing remarks notbased on trial evidence. The Collier case, however, does notdiscuss statements by a prosecutor not being supported by theevidence beyond simply noting that prosecutors have “widelatitude to argue inferences from the evidence” in the contextof similar transactions. Collier, 266 Ga. App. at 353(2)(a).Because Tolbert does not rely on any relevant authority tosupport this enumeration, it is abandoned for the reasons setforth in Division 2.8. Tolbert next argues that the use of his prior convictionboth as evidence for the subsequently dismissed charge ofpossession of a firearm by a convicted felon discussed inFootnote 1, supra, and for the purpose of recidivist sentencingwas error, but this argument has also been abandoned forfailing to cite any appropriate authority. This enumerationonly includes two citations to authority, both (purportedly)supporting his contention that “Georgia courts have longheld that evidence used solely to prove an element of acharge that has been dismissed cannot be repurposed forrecidivist sentencing.” The first, London v. State, 260 Ga.App. 780 (580 SE2d 686) (2003), has nothing to do withrecidivist sentencing. The second, Hillman v. Johnson, 297Ga. 609 (774 SE2d 615) (2015), while analyzing the use ofprior convictions in recidivist sentencing, makes no referenceto dismissed charges and does not appear to support hisargument. While this Court observed in Hillman that, in somecircumstances, the dual-use of evidence can be impermissible,see King v. State, 169 Ga. App. 444, 445 (313 SE2d 144)(1984), such a rule”has no application to crimes that do nothave as an element the defendant's prior conviction of afelony.” Hillman, 297 Ga. at 614(2)(a). Because neither of thecharges that Tolbert was convicted of have as an element thathe was a convicted felon, Hillman actually stands for the exactopposite of Tolbert's contention.*5 9. Tolbert's next enumeration, regarding recidivistsentencing, is also abandoned for failing to cite any relevantauthority. While Tolbert cites two cases to assert that“improper reliance on prior convictions — particularly wherethe charge has been abandoned — undermines the legitimacyof sentencing[,]” as best as we can tell from our review,neither of these cases have anything to do with sentencing andcertainly do not support the statement of law for which hecites them. The cases improperly relied on are Taylor v. State,316 Ga. 17 (885 SE2d 787) (2023) (considering whether agiven self-defense instruction was erroneous and completelysilent as to sentencing); and Ross, 279 Ga. at 365 (discussingwhether a trial court erred in failing to accept a defendant'sstipulation to a prior felony conviction and completely silentas to sentencing). Because this enumeration is not supportedwith authority, it is abandoned for the reasons set forth inDivision 2.10. In Tolbert's next two enumerations of error, which hehas combined for argument, he asserts that his trial counselwas ineffective for failing to stipulate to his prior felonyconviction and failing to request a bifurcated trial on thecharge of possession of a firearm by a convicted felon. “[A]trial judge shall bifurcate the proceedings if the charge ofpossession of a firearm by a convicted felon is unrelated toany other count of the indictment. But bifurcation is requiredonly on motion by the defendant.” (Citations and punctuationomitted). Temple v. State, 253 Ga. App. 606, 609(2)(a) (561SE2d 132) (2002). In this case, the trial court concluded thateven if Tolbert's trial counsel was deficient in these regards,there was no prejudice because Tolbert had not demonstratedthat the outcome of the trial would have been different.“Under the standard of Strickland v. Washington, 466 U. S.668[, 687, 694(III)] (104 SCt 2052, 80 LE2d 674) (1984),to prevail on an ineffectiveness claim, [Tolbert] must showthat his trial counsel's performance was deficient and thatbut for that deficiency, a reasonable probability exists thatthe outcome of his trial would have been different.” Vann v.State, 266 Ga. App. 238, 240(1) (596 SE2d 722) (2004). “If[Tolbert] fails to satisfy either part of the Strickland test, hisclaim fails, and we need not address the other part.” Moore v.State, 315 Ga. 263, 266(2) (882 SE2d 227) (2022).Regarding deficient performance, Tolbert attributed thefollowing quote to his trial counsel: “I did not requestbifurcation because I didn't realize it was required in thissituation. I don't believe I have ever handled a bifurcatedtrial before.” We cannot find this quote in the record andour review of the record indicates that trial counsel actuallytestified that he “[did not] remember [his] thought process inregard to requesting bifucation[.]” We note that this material
TOLBERT v. THE STATE., --- S.E.2d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.5— and unexplained — misrepresentation as another exampleof Tolbert's appellate attorney's egregious lack of candor tothis Court, which has unnecessarily frustrated our review ofhis client's case. The trial court, however, found that Tolbertcould prove that his trial counsel was deficient for failingto bifurcate or stipulate to the prior conviction. Given thecommandment for trial courts to bifurcate such proceedingson the defendant's request, we assume, without deciding, thathis trial counsel acted deficiently by failing to do so. Thatassumption, however, does not end our inquiry.Regarding prejudice, Tolbert relies on the Vann case to arguethat he was prejudiced because his trial counsel did notseek a curative instruction regarding impermissible characterevidence related to his prior convction. In Vann, this Courtconcluded that a defendant was prejudiced by the introductionof a certified copy of a prior conviction where “trial counseldid not request a charge that the jury limit its considerationof the prior conviction to the charges of possession ofa firearm by a convicted felon.” Vann, 266 Ga. App. at241(1). Without a limiting instruction “[t]he jurors likelyfelt free to consider the evidence for whatever purposethey saw fit, including improperly judging [the defendant's]character and credibility.” (Citation and punctuation omitted).Id. Unlike in the Vann case, however, Tolbert's trial counseldid seek, and received, a limiting instruction regarding theprior conviction. Because the record belies Tolbert's claimthat he was prejudiced by the lack of a limiting instruction,and he has not meaningfully advanced any other argumentregarding prejudice, he has abandoned these enumerations forthe reasons provided in Division 2.*6 11. In his next enumeration of error, Tolbert asserts thathis trial counsel was ineffective for failing to preserve forreview the trial court's failure to give an accident instruction.Tolbert cites to Wilson, 259 Ga. at 55, for the generalrule that failure to renew a requested charge on accidentwaives appellate review, and Sanders, 283 Ga. at 372, forthe general contention that counsel may be deficient forfailing to preserve an objection to a jury charge if the chargeis otherwise meritorious. As noted in Division 4, however,Tolbert has failed to demonstrate he was entitled to aninstruction on accident. Because Tolbert failed to cite anyauthority to support his contention that he was entitled to anaccident instruction, this enumeration is abandoned as well.12. Tolbert next argues that he received ineffective assistancebecause his attorney did not seek a limiting instruction duringtrial regarding his prior conviction at the time the evidencewas introduced instead of at the end of trial. Tolbert cites asingle case, Starling v. State, 285 Ga. App. 474 (646 SE2d695) (2007), for a purported rule that counsel is deficientfor failing to seek a limiting instruction after evidence of aprior felony conviction is introduced. In the Starling case, thisCourt found trial counsel to be ineffective when they failed toobject to a trial court omitting a limiting instruction related toa prior felony conviction. Id. at 477-479(a), (b). As noted inDivision 10, there was a limiting instruction given in this caseon this issue. At no point does the Starling case suggest thatcounsel is deficient for seeking a limiting instruction duringjury instructions instead of a curative instruction when theevidence is introduced. See id. at 477-478(a). Because Tolbertcites no authority to suggest that the limiting instruction herewas insufficient, he has not demonstrated error by the recordand this enumeration is also abandoned for the reasons setforth in Division 2. See Gordon v. State, 373 Ga. App. 592,600(2) (908 SE2d 297) (2024) (“The burden is always on theappellant in asserting error to show it affirmatively by therecord[.]”) (citation and punctuation omitted).13. Tolbert asserts that he received ineffective assistancebecause his counsel permitted the photo line-up, with thevictim's written commentary, to go to the jury withoutobjection. In Division 6, we concluded that Tolbert hadabandoned any argument that the trial court violated thecontinuing witness rule because he failed to support hisargument with legal authority. We conclude that Tolbert hasalso abandoned this enumeration by again failing to provideany legal authority to support his argument. Tolbert citesEvans v. State, 253 Ga. App. 71 (558 SE2d 51) (2001), forthe contention that this Court “held that submission of suchdocuments to the jury without objection forfeits a criticalsafeguard.” The Evans case, however, says nothing aboutcritical safeguards, nor does the case analyze the continuingwitness rule in any substantive way. See Evans, 253 Ga.App. at 75(1) (concluding, without analysis, that to theextent appellant raised a continuing witness objection, itwas waived). Because Tolbert has not demonstrated by therecord that his counsel was deficient for failing to objectto this evidence going into the jury room, this argumentis abandoned. See Finnegan v. State, 371 Ga. App. 756,759(1) (903 SE2d 141) (2024) (concluding that a defendantabandoned ineffectiveness claims for failing to make anymeaningful legal argument or provide record citations tosupport this claim of error).14. Tolbert next argues that his trial counsel wasineffective by agreeing to omit forcible felony from the
TOLBERT v. THE STATE., --- S.E.2d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.6justification instruction. In Division 5, we concluded thathe had abandoned any argument that the instruction givenon justification was erroneous. Tolbert's conclusory andunsupported argument in this enumeration also fails for thesame reason. Moreover, we note that the only case Tolbertcites in this enumeration is Laney, 184 Ga. App. at 463,again without any cautioning that the authority was expresslydisapproved of by the Supreme Court decades ago. SeeHolmes, 273 Ga. at 647(4).*7 15. Tolbert asserts that he received ineffective assistancebecause his trial counsel failed “to argue accident as a defenseduring [the] charge conference[.]” Because Tolbert has notcited any meaningful authority in this enumeration,5 it isunclear how this enumeration is different from the argumentwe rejected in Division 11. Regardless, because the argumentis wholly unsupported, it is abandoned for the same reason.16. Finally, Tolbert asserts that the cumulative effect of histrial counsel's deficiencies and the trial court's errors deprivedhim of a fair trial. Our Supreme Court has concluded thatwe must “consider collectively the prejudicial effect of trialcourt errors and any deficient performance by counsel — atleast where those errors by the court and counsel involveevidentiary issues.” State v. Lane, 308 Ga. 10, 14(1) (838SE2d 808) (2020). “However, when reviewing a claim ofcumulative prejudice, we evaluate only the effects of mattersdetermined to be error, not the cumulative effect of non-errors.” (Citation and punctuation omitted.) Ash v. State, 312Ga. 771, 796(6) (865 SE2d 150) (2021). Here, this Courthas assumed for the purposes of the analysis that Tolbert'strial counsel was deficient for only a single reason (failing tobifurcate the trial or stipulate to the prior felony conviction),and we concluded in Division 10 that there was no evidence ofprejudice. In addition, Tolbert has not demonstrated that thetrial court erred in any respect. Because Tolbert has failed toshow any other deficient conduct by his trial counsel or errorsby the trial court, we have no basis for evaluating cumulativeerror. See Ash, 312 Ga. at 797(6). Therefore, this claim alsofails.17. As noted throughout this opinion, Tolbert's brief is repletewith references to cases which do not support the contentionsfor which he cites them, including occasions where the casescited are actually contrary to his argument. We are particularlyconcerned with his reliance on purported direct quotationspresumably drawn from our cases but which do not actuallyappear in those cases cited. We are similarly troubled byTolbert's reliance on authority which has been expresslyoverruled. Furthermore, we have found at least two occasionswhere his appellate attorney Shelnutt cited to the record fordirect quotations which do not appear in the record. We findthat Shelnutt's lack of candor and failure to comply with therules of this Court have frustrated his client's ability to appealhis convictions.We make no factual findings here as to how or whyShelnutt provided inappropriate authority to this Court, butwe conclude that such misrepresentations exist and thisappeal is frivolous as a result. See Shahid v. Esaam, 376Ga. App. 145, 149(2) (918 SE2d 198) (2025) (imposing a$2,500 frivolous appeal sanction where appellant provided11 “bogus” case citations out of 15 total). While the rules ofthis Court do not authorize a monetary sanction in criminalcases, see Court of Appeals Rule 7(e)(2), we are extremelyconcerned about the lack of candor demonstrated by Shelnutt,especially when his conduct has frustrated his client's abilityto contest his convictions in our Court. This is particularly truewhere Shelnutt's client has waited approximately 13 years tohave his case reviewed in this Court. We expect better fromattorneys who practice before us.*8 It may be that some of the issues raised by this appealhave merit, but in this case, Tolbert's appellate counselhas failed to convey any such merit within the frameworkestablished by Georgia law or the rules of this Court.6Consequently, we order Shelnutt to serve this opinion onhis client. We also order Shelnutt to serve this opinion onthe General Counsel of the State Bar of Georgia for furtherinvestigation, and, if necessary, disciplinary action. Shelnutthas ten days from the issuance of this opinion to file acertificate of compliance in this Court. While Shelnutt doesnot appear to have any other pending cases before our Court,if he has any future cases docketed, he must endeavor tocomport himself with our rules, as further violations maysubject him to contempt proceedings and jeopardize hisauthority to practice in this Court. See We Care Transp. v.Branch Banking and Trust Co., 335 Ga. App. 292, 298(3) (780SE2d 782) (2015); Court of Appeals Rule 7(a). Additionally,within twelve months of the date of this opinion or beforeShelnutt files any further briefs or motions in this Court —whichever occurs first — he must certify with the Clerk ofCourt that he has completed at least three hours of continuinglegal education focused on brief writing.Judgment affirmed.
TOLBERT v. THE STATE., --- S.E.2d ---- (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.7McFadden, P.J., and Pipkin, J., concur.All Citations--- S.E.2d ----, 2026 WL 178716Footnotes1The jury also found Tolbert guilty of an additional charge of possession of a firearm by a convicted felon.However, the State moved to dismiss this charge before Tolbert was sentenced, and the trial court enteredan order dismissing that count.2Jackson v. Virginia, 443 US 307 (99 SCt 2781, 61 LE2d 560) (1979).3This Court initially dismissed this appeal in April 2025 because Tolbert failed to timely file a brief in accordancewith the rules of this Court. See Court of Appeals Rule 23(a). Tolbert filed a motion for reconsideration,claiming that his brief was not filed because the trial court did not provide notice that the appeal was docketed.We reconsidered our dismissal and reinstated this appeal so Tolbert could demonstrate the “strong groundsfor appeal” he asserted that this case contained. We further note that our reinstatement order provided that“Tolbert shall have 20 days from the date of this order [April 29, 2025] to file his appellate brief[,]” whichran through May 19, 2025. Tolbert, however, filed his brief on May 21, 2025, and offers no excuse for hissecond tardy brief.4We also note that after Tolbert filed his brief, the Supreme Court recognized that Ross has been supercededby statute and is no longer binding precedent. Fraser v. State, __ Ga. __ (920 SE2d 644, 650(2)(a)) (2025).5We note that Tolbert cites Taylor, 316 Ga. at 17, and Ross, 279 Ga. at 365, again in this enumeration regardingthe use of his prior felony conviction. As we observed in Division 9, where Tolbert inexplicably cited thesesame cases for propositions of law that were not supported by the cases, his citation to these cases in thisenumeration appears to be just as irrelevant.6We note that despite our observations of Shelnutt's misconduct in this case, this Court may not interveneto address whether such conduct is ineffective appellate counsel. See Wilson v. State, 286 Ga. 141, 144(4)(686 SE2d 104) (2009) (“[T]he only means by which [Tolbert] may pursue such a claim of ineffective appellatecounsel is a habeas corpus proceeding.”) (citation and punctuation omitted).End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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