Georgia High Court Says Lawyers Must Tell Clients of Plea Deal Impact on Parole

5-12-15 Georgia:

The Georgia Supreme Court has made it easier for criminal defendants who pleaded guilty to challenge their convictions on grounds of ineffective assistance of counsel by claiming in that their lawyers failed to inform them how their plea deals would affect their eligibility for parole.

The unanimous decision, which included the high court striking down its 16-year-old precedent on the issue, means that a man who pleaded guilty to a host of child sexual abuse charges may have a chance to withdraw his plea.

In 2011, Calvin Alexander pleaded guilty in Fulton County Superior Court to three counts of aggravated child molestation, two counts of statutory rape, three counts of child molestation and two counts of enticing a child for indecent purposes, according to the court's ruling. He was sentenced to 30 years on each aggravated child molestation count, with 15 years to serve and the balance on probation. He was also sentenced to 15 years on each of the other counts, and he was to serve all of them concurrently.

Alexander subsequently moved to withdraw his plea, arguing that his attorney had failed to advise him that, because he was being sentenced under Georgia's recidivist statute, he would be ineligible for parole.

Fulton County Superior Court Judge Wendy Shoob denied the motion, finding that Alexander had "knowingly, voluntarily, and intelligently" entered the plea. Alexander appealed, and in July 2014 Court of Appeals Judge Elizabeth Branch, joined by Judges Anne Elizabeth Barnes and Michael Boggs, upheld Shoob's order, writing that the court was constrained by a 1999 Georgia Supreme Court case, Williams v. Duffy, 270 Ga. 580.

In that case, a burglary defendant who was sentenced to 15 years after pleading guilty filed a habeas petition asserting ineffective assistance of counsel because his lawyer had failed to advise him he would be ineligible for parole. The trial court granted the petition and the government appealed.

A majority of the justices reversed the trial judge, ruling that parole eligibility "only has a collateral effect on a defendant's sentence and that an attorney's failure to advise a defendant of a collateral consequence cannot constitute ineffective assistance."

On Monday, Chief Justice Hugh Thompson wrote for the court that a 2010 U.S. Supreme Court decision made the Williams precedent "no longer good law."

Underlying these cases is the U.S. high court's 1984 ruling in Strickland v. Washington, which established a two-prong test to gauge whether a defendant's Sixth Amendment right to effective assistance of counsel has been violated. First a defendant must show that his lawyer's performance fell below the level required to constitute effective representation. The second prong mandates a showing that, if the representation had been effective, the outcome of the case may have been different.

When the Georgia Supreme Court decided Williams in 1999, Thompson wrote, the justices cited a U.S. high court ruling from the year after Strickland was decided for the proposition that there was no "constitutional requirement that a defendant be advised" of any "collateral consequences" for his plea to be valid.

A 2010 U.S. Supreme Court case, Padilla v. Kentucky, 59 U.S. 356, "required us to rethink our course," wrote Thompson. In that case, the U.S. court held that a lawyer who incorrectly advised his client, a Honduran national, that pleading guilty to a marijuana charge would not affect his immigration status violated his Sixth Amendment rights.

"Eschewing a direct versus collateral consequence analysis," Thompson wrote, "the [U.S.] Supreme Court held that the Sixth Amendment's guarantee of effective assistance of counsel protects a defendant from erroneous advice about deportation, and that a defendant establishes deficient performance under Strickland when he shows that counsel failed to accurately advise him about the automatic deportation consequences of a guilty plea."

In that same year, the Georgia Supreme Court declined to overrule Williams in another case, but "made it clear that Williams stood on shaky ground," Thompson wrote. In a subsequent case involving a man whose bid to withdraw his plea after he found out he would be required to register as a sex offender, the Georgia Court of Appeals—citing Padilla—"determined that a direct versus collateral consequence distinction does not control the scope of professional assistance required under Strickland," Thompson wrote.

"We agree … and hold that, whether a guilty plea gives rise to a direct or collateral consequence, when a criminal defendant seeks to withdraw a guilty plea on the ground of ineffective assistance of counsel, the ineffective assistance claim must be evaluated under the two-prong test," he wrote.

"We hasten to add that counsel's failure to offer advice concerning a collateral consequence will not rise to the level of constitutional deficiency in every instance," wrote Thompson.

But, he wrote, “when it comes to parole eligibility, we conclude that an attorney’s failure to inform his or her client that he or she would be ineligible for parole as a recidivist for the entirety of a lengthy prison sentence is constitutionally deficient performance.”

In an emailed statement, Fulton County District Attorney Paul Howard noted that Alexander still has to convince a judge that he was unaware of the consequences of his plea.

"Alexander's conviction has not been reversed, because he still has to prove on remand to the Superior Court of Fulton County that he was unaware that under a recidivist sentence, he would be required to serve his entire prison sentence and additionally, that if he had known, he would not have pled guilty, but would have insisted on going to trial," said Howard.

"This case stands for the proposition that ineffective assistance of counsel claims asserting that defense counsel failed to advise a client about the collateral consequences of a guilty plea will now be evaluated under the classic ineffective assistance of counsel standard found in Strickland v. Washington," Howard said. "Previously, such claims were not considered to be within the realm of areas in which a defense attorney could render ineffective assistance of counsel because such claims concerned topics which were not the direct result of a client's guilty plea, but only a 'collateral consequence' of the plea.

"The Court in Alexander v. State made clear that a defense attorney must advise a client that a recidivist sentence means the client will serve the entire prison portion of any sentence imposed, without the chance for parole on the prison portion of the sentence."

Alexander's appeal was filed by Kenneth Kondritzer of the Fulton County Public Defender's appellate section, and argued and briefed by his colleague T. Natasha Crawford.

Kondritzer said the opinion addresses situations he's dealt with previously.

"It clarifies this particular area," Kondritzer said. "Before, there was kind of an anomaly: the Williams v. Duffy decision was really inconsistent with more recent rulings, so this goes a long way toward clearing this up."

Kondritzer said the impact of the decision on defendants who have already pleaded and been sentenced under circumstances similar to Alexander's may be limited.

"It depends on the status of their case," he said. "Mr. Alexander filed a motion to withdraw his guilty plea. For people in prison, their only recourse would be to file a petition for habeas corpus, and they have a four-year limit to do that. It's not real clear whether this would apply to them in any case; that needs to be litigated." ..Source.. by Hugh P. Thompson