☢ test - Í

Gissendaner v. State, 272 Ga. 704, 532 S.E.2d 677 (2000). 2. “In the penalty phase, the trial court did not err by allowing the State to present a 1999 letter from Riley to his wife demanding that she engage in three-way sex with him and another woman. See Whatley v. State, 270 Ga. 296(11) (509 S.E.2d 45) (1998) (‘All aspects of a defendant’s crime, character, and attitude ... [are] admissible in the sentencing phase.’); McMichen [ v. State, 265 Ga. 598, 607(12), 458 S.E.2d 833 (1995)]; Fugitt v. State, 256 Ga. 292(1)(d) (348 S.E.2d 451) (1986) ( ‘[A] defendant’s character in general ... [is] relevant to the question of sentence.’).” Jones v. State, 265 Ga.App. 251, 593 S.E.2d 720 (January 22, 2004). Although trial court was advised of other pending charges against defendant, record “made it clear that she understood that he had not been convicted of those crimes. ” “ A presumption exists that a trial judge did not consider improper matters in imposing sentence. ” Accord, Dorsey v. State , 265 Ga.App. 597, 595 S.E.2d 106 (January 30, 2004); Noellien v. State , 298 Ga.App. 47, 679 S.E.2d 75 (May 19, 2009). Wright v. State, 265 Ga.App. 188, 593 S.E.2d 391 (January 16, 2004). “‘[T]here is a presumption, in the absence of a strong showing to the contrary, that the trial judge, when sitting without a jury, separates the legal evidence from facts not properly in evidence in reaching his decision.’ [Cit.] In Humphrey v. State , [September 6, 2002, below] upon which Wright relies, we held that a trial court is not permitted to consider impermissible hearsay when imposing a sentence. In that case, however, the trial court expressly relied on the prosecutor’s hearsay statement when it denied the defendant first offender status, rebutting the presumption that the judge considered only the legal evidence in the case. In the instant case, there is no evidence that the trial judge considered the prosecutor’s hearsay statements when imposing Wright’s sentence. In the absence of such evidence, we must apply the presumption that the judge ‘consider[ed] only those matters which may be lawfully considered in determining a sentence.’ [Cit.]” Result would be different if court made unambiguous reference to inadmissible GCIC record; reference here could be construed to come from psych evaluation presented by defendant, although court was also provided with NCIC and GCIC reports. Accord, Allen v. State , 634 Ga.App. 831, 634 S.E.2d 831 (July 25, 2006) (trial court presumed not to have considered prior conviction mentioned but not properly admitted during sentencing; “[u]pon being made aware of the prior conviction, the trial court admonished the State for failing to file notice of its intent to introduce such evidence and expressed that it could not consider the conviction. ”); McIntosh v. State , 287 Ga.App. 293, 651 S.E.2d 207 (August 17, 2007) (pending charges mentioned by prosecutor, not referenced by court in sentencing); Marshall v. State , 324 Ga.App. 348, 750 S.E.2d 418 (October 25, 2013) (same as McIntosh ). Adams v. State, 263 Ga.App. 694, 589 S.E.2d 269 (October 21, 2003). “[T]rial courts are permitted to consider criminal histories contained in presentence reports when deciding whether to suspend or probate a sentence, although such reports cannot be used to determine the length of a sentence.” Cole v. State, 262 Ga.App. 856, 586 S.E.2d 745 (August 22, 2003). Trial court erred in relying on GCIC printout of defendant’s criminal history during sentencing, as no foundation was laid for its admission. “The hearsay rule is not suspended in the sentencing phase.” However, defendant waived the issue by failing to object. Opinion implies that different result might have obtained had the report been used either to establish guilt or to impose recidivist sentence. Overruled on other grounds, Gearin v. State , 269 Ga.App. 187, 603 S.E.2d 709 (August 20, 2004). Villegas v. State, 262 Ga.App. 55, 584 S.E.2d 666 (June 27, 2003). “Villegas contends the trial court improperly considered his prior first offender plea for entering an automobile in sentencing him in this case. We disagree. Villegas is correct in asserting that a first offender who successfully completes his probation period shall not be considered to have a criminal conviction and thus his record as a first offender cannot be used for purposes of sentencing him as a recidivist. However, the Supreme Court has held that consideration of a defendant’s first offender record in aggravation of sentence is different because evidence in aggravation is not limited to convictions, and reliable information tending to show a defendant’s general bad character is admissible in aggravation ,” citing Williams v. State, 258 Ga. 281, 368 S.E.2d 742 (1988). De’Mon v. State, 262 Ga.App. 10, 584 S.E.2d 639 (June 26, 2003). “During sentencing, a court may consider any evidence properly adduced during the guilt-innocence phase of the proceedings. And, ‘evidence in aggravation may include reliable information tending to show a defendant’s general bad character.’” Thus, not error to consider a similar transaction admitted during trial for which defendant was never charged or convicted. Accord, Breland v. State , 287 Ga.App. 83, 651 S.E.2d 439 (August 1, 2007); Valentine v. State , 289 Ga.App. 60, 656 S.E.2d 208 (December 20, 2007) (in sentencing defendant for burglary, trial court could consider fact that a victim was killed during the burglary, although he was acquitted of felony murder).