Habeas corpus. Gwinnett Superior Court. Before Judge Conner.
Judgment reversed and case remanded with direction.
Stephen M. Reba, for appellant.
Daniel J. Porter, District Attorney, Robby A. King, Courtney L. Mays, Assistant District Attorneys, for appellee.
Thompson, Chief Justice.
This case concerns the adequacy of an attorney's immigration advice to a legal permanent resident who entered a guilty plea to a burglary charge. The attorney advised his client that his plea " may" have an impact on his immigration status. However, the State concedes and we agree that the immigration consequences of the plea were clear -- a conviction for burglary constitutes an aggravated felony and will almost certainly lead to deportation proceedings under the Immigration and Naturalization Act (" INA" ). It follows that the attorney was deficient when he incorrectly advised his client that he " may" face deportation as a result of his plea.
Petitioner entered a guilty plea to a charge of burglary in the Superior Court of Gwinnett County on August 30, 2012. He was sentenced under Georgia's First Offender Act, OCGA § 42-8-60, to six years in prison (to serve one year, suspended upon successful completion of probation boot camp) and ordered to pay restitution and a fine. Before petitioner entered his guilty plea, appointed trial counsel advised petitioner that a guilty plea to burglary " may" impact petitioner's immigration status, and that petitioner should seek the advice of an immigration attorney. He also informed petitioner that he " could" be deported even if he received first offender treatment. During the plea proceedings, the State asked if petitioner understood that his guilty plea " may have an impact" on his immigration status and that he " may be deported as a result of this plea." Petitioner responded affirmatively. Based on these facts, petitioner filed a petition for a writ of habeas corpus in the Superior Court of Gwinnett County, asserting that trial counsel was ineffective and that petitioner's plea was not knowingly and voluntarily entered. In this regard, petitioner averred, inter alia, that his attorney informed him that a burglary conviction " could" result in deportation; but that, if he completed his sentence as a first offender, he " would not have a conviction for burglary" ; and that, on the basis of that information, petitioner presumed he would not be deported as long as he successfully completed his first offender sentence.
[295 Ga. 661] The habeas court denied the petition, finding that it had " no authority to enforce federal law and/or require the federal agency responsible for enforcement to act," and that petitioner was advised " as accurately as possible regarding a negative impact on his immigration status, including, but not limited to, possible deportation." The court added: " [C]ounsel provided petitioner with consistent, accurate advice about the risk petitioner was facing. The advice and instruction provided to petitioner was neither 'mis-advice' nor insufficient or inadequate."
Petitioner filed an application for a certificate of probable cause to appeal which this Court granted, posing the following question: " Did the habeas court properly analyze the claim presented?" We answer this question
negatively, reverse the habeas court, and remand with direction.
To prevail on a claim of ineffective assistance of counsel, petitioner must show both that his counsel's performance was deficient, and that the deficient performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783 (1) (325 S.E.2d 362) (1985) (citing Strickland v. Washington, 466 U.S. 668 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984)). With regard to immigration consequences, the United States Supreme Court held, in Padilla v. Kentucky, 559 U.S. 356 (130 S.Ct. 1473, 176 L.Ed.2d 284) (2010), that the Sixth Amendment's guarantee of effective assistance of counsel protects a criminal defendant from erroneous advice about deportation, id. at 366, and that a defendant establishes Strickland 's deficient performance prong by showing that counsel failed to accurately advise the defendant when the immigration consequences of a guilty plea " could be easily determined from reading the removal statute [8 USC § 1227]." Id. at 368-369. In that case, counsel provided his client with the false assurance that his guilty plea would not lead to his deportation. The Supreme Court acknowledged that immigration law can be " complex," and that where the law is unclear or discretionary, it may be sufficient to advise a client that he " may" face deportation. The Padilla Court emphasized, however, that where the deportation consequences of a plea are " truly clear ... the duty to give correct advice is equally clear." Id. See also Smith v. State, 287 Ga. 391 (697 S.E.2d 177) (2010) (discussing significance of Padilla in case involving the withdrawal of a plea after sentencing).
Included in the INA's definition of " aggravated felony" is " a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year." 8 USC § 1101 (a) (43) (G); see Jaggernauth v. United States Atty. Gen., 432 F.3d 1346, 1353 (11th Cir. 2005) (theft offense is aggravated felony if prison term is at least one year). Georgia's burglary statute provides [295 Ga. 662] that a burglary, whether in the first or second degree, constitutes a felony and imposes a sentence of longer than one year for a conviction. OCGA § 16-7-1 (b), (c). Indeed, in this case, petitioner was ...