CourtListener 10680315

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319 Ga. 179
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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affirmed in an unpublished decision on June 25, 2019, but following
Appellant’s unsuccessful motion for reconsideration, it issued an unpublished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Appellant’s petition for certiorari by unpublished order on March 26, 2020, and
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
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

Appellant’s potential to receive an enhanced recidivist sentence for

a subsequent DUI conviction constituted such a consequence. We

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
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

Appellant began serving her sentence on August 1, 2020, and on

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 who 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,
following Appellant’s completion of a DUI Alcohol Risk Reduction Program and
her payment of the associated restoration fee.
3
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

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

4
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

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

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
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

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

6
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) (punctuation omitted) (quoting Carafas v. LaVallee, 391 U. S.

234, 237 (88 SCt 1556, 20 LE2d 554) (1968)). 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 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 333 (2)). These consequences

7
may even include “the stigma and burden of an invalid sentence.”

Id. 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” (emphasis in original)); 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

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

8
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 the Interest of

I. S., 278 Ga. 859, 862 (607 SE2d 546) (2005); Baker v. State, 240 Ga.

431, 432 (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

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

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
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

enhancement is a clear “adverse collateral consequence[ ]” of the

prior conviction, and so a habeas petition challenging the prior

conviction is “not moot.” Id.

10
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

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

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 id. 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.” (citation and
punctuation omitted; emphasis in original)). 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
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

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

12
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

enough to put a restraint on Appellant’s liberty, such that her

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
prosecution for a violation of Code Section 40-6-391, evidence of the
commission of another violation of Code Section 40-6-391 on a different
occasion by the same accused shall be admissible [under certain conditions].”).
13
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).

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.,

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. id. 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
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

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

15
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

convictions); Baker, 240 Ga. at 431-432 (holding without discussion

that the appellant had not shown adverse collateral consequences

on the record).

16
(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
Decided June 11, 2024.

DUI; habeas corpus. Floyd Superior Court. Before Judge

Johnson.

Willis Law Firm, Greg A. Willis, Jessica Jones, for appellant.

Leigh E. Patterson, District Attorney, Leah C. Mayo, Assistant

District Attorney, for appellees.

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