1

 OCGA § 49-4-146.1 (b) (2) makes it unlawful for any person or Medicaid

provider “knowingly and willfully to accept medical assistance payments to which

he or she is not entitled or in an amount greater than that to which he or she is entitled

or knowingly and willfully to falsify any report or document required under this

article.” 

2

 Although the case below is pending, making the instant order interlocutory,

“the present practice is that a direct appeal from an order denying appeal bond should

be considered on the merits.” (Citation omitted.) Wade v. State, 218 Ga. App. 377,

378 (2) (461 SE2d 314) (1995).

FIRST DIVISION

PHIPPS, C. J.,

ELLINGTON, P. J., and MCMILLIAN, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules/

September 9, 2014

In the Court of Appeals of Georgia

A14A1957. MALLOY v. THE STATE. JE-071C

ELLINGTON, Presiding Judge.

In the Superior Court of DeKalb County, a jury found Dr. Tyrone Malloy guilty

of two counts of Medicaid fraud1 and the court sentenced him to serve four years in

prison. Prior to filing his motion for a new trial, Malloy sought an appeal bond, which

the court denied following a hearing. Malloy appeals from the order denying bond,2
3

 Because Malloy’s conviction for fraud is not among those offenses listed in

OCGA § 17-6-1 (g), he is eligible for an appeal bond.

2

contending that he presented sufficient evidence demonstrating that he was not a

flight risk. For the following reasons, we affirm.

“There is no constitutional right to bond pending appeal. Whether to grant an

appeal bond to eligible[3] felony defendants lies within the sound discretion of the

convicting court, and we will not disturb the court’s decision absent a flagrant abuse

of discretion.” (Footnotes omitted.) Luke v. State, 282 Ga. App. 749, 750 (639 SE2d

645) (2006).

In exercising its discretion, the trial court must answer four questions:

(1) whether there is a substantial risk the defendant will flee; (2) whether

there is a substantial risk the defendant will pose a danger to others in

the community; (3) whether there is a substantial risk the defendant will

intimidate witnesses or otherwise interfere with the administration of

justice; and (4) whether it appears the appeal is frivolous or taken only

for the purpose of delay. An affirmative answer to any one of these

questions will support the trial court’s decision to deny an appeal bond.

(Footnotes omitted.) Abernathy v. State, 245 Ga. App. 857, 857-858 (539 SE2d 203)

(2000); see also Birge v. State, 238 Ga. 88 (230 SE2d 895) (1976). 
4

 The trial court is not required to make findings of fact supporting its decision.

Rather, the court is only required to affirmatively find in its order the existence of one

of the four factors outlined above. See Moore v. State, 151 Ga. App. at 414-415.

3

The defendant bears the burden of persuading the court to grant an appeal

bond, and the court should not grant bond “unless the defendant presents sufficient

information, evidence, or argument to convince the trial court that none of the four

factors applies.” (Footnote omitted.) Abernathy v. State, 245 Ga. App. at 858. See

also Moore v. State, 151 Ga. App. 413, 414 (260 SE2d 350) (1979) (accord). In

addition to any evidence offered by the defendant, “the trial judge may consider all

the evidence adduced at the trial that is pertinent to [the appeal bond]

determination[.]” (Punctuation and footnote omitted.) Williford v. State, 218 Ga. App.

522, 523 (462 SE2d 632) (1995). “Whether we agree with [the trial court’s] findings

and conclusions is not controlling.” (Citations and punctuation omitted.) Hardy v.

State, 192 Ga. App. 860, 861 (2) (386 SE2d 731) (1989) (physical precedent only).

Thus, as long as there is some evidence to support the trial court’s decision,4 we will

not disturb it. See Abernathy v. State, 245 Ga. App. at 857-858.
5

 The court did not address any of the other factors relevant to the decision to

deny an appeal bond. Consequently, whether the court’s decision also may be

sustainable on another ground is not properly before this Court.

4

In this case, the court denied Malloy’s request for bond by affirmativelyfinding

that there was a substantial risk that Malloy would flee.5 Although Malloy presented

evidence of his community ties, the trial court stated that it was not persuaded by

Malloy’s assurances. Given that Malloy was convicted of Medicaid fraud, a crime

involving deceit and the theft of public funds, the court’s distrust of Malloy’s

assurances is reasonably based in record evidence. Also, at sentencing, Malloy

showed no acceptance of the jury’s verdict and little understanding that it warranted

criminal punishment, stating “I would not have sacrificed all of the things that I have

done if I had intent to defraud Medicaid. I feel that my contribution of what I felt a

doctor should be and should do was what I’ve accomplished in 37 years. In no way

was I trying to do something that was illegal.” The record also contains evidence that

Malloy is older, wealthy, and has family and business connections outside of Georgia,

connections that may provide him refuge or aid. Given that some record evidence

supports the court’s decision to deny Malloy an appeal bond, we cannot say that the

trial court manifestly abused its discretion. See Williford v. State, 218 Ga. App. at

524.
5

2. Malloy’s motion to expedite this appeal is denied as moot.

Judgment affirmed. Phipps, C. J., concurs. McMillian, J., concurs in judgment

only.