Certiorari to the Court of Appeals of Georgia -- 328 Ga.App. 300.
Kenneth D. Kondritzer, Tamara N. Crawford, for appellant.
Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Lenny I. Krick, Assistant District Attorneys, for appellee.
Thompson, Chief Justice.
Appellant Calvin Alexander pled guilty 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 pursuant to a non-negotiated Alford plea. He was sentenced to 30 years on each count of aggravated child molestation with 15 years to be served in prison and the balance on probation; 15 years to serve on each of the statutory rape charges; and 15 years on each of the child molestation charges. Thereafter, appellant moved to withdraw his guilty plea on the ground of ineffective assistance of counsel. In this regard, appellant asserted trial counsel failed to advise him he would not be eligible for parole (because he was sentenced as a recidivist) and, if he had been so advised, he would not have pled guilty. At the hearing upon appellant's motion, trial counsel testified he had no recollection of having discussed parole eligibility with appellant.
The trial court denied appellant's motion to withdraw his guilty plea, and the Court of Appeals affirmed, holding it was constrained by this Court's ruling in Williams v. Duffy, 270 Ga. 580 (513 S.E.2d 212) (1999), that ineligibility for parole has a collateral effect on a criminal sentence and that, therefore, a lawyer's failure to inform his client about parole eligibility cannot constitute deficient
performance as a [297 Ga. 60] matter of law. This Court granted appellant's petition for a writ of certiorari and posed this succinct question: Whether Williams v. Duffy remains good law, see Padilla v. Kentucky, 559 U.S. 356 (130 S.Ct. 1473, 176 L.Ed.2d 284) (2010), Smith v. State, 287 Ga. 391 (697 S.E.2d 177) (2010), and Taylor v. State, 304 Ga.App. 878 (698 S.E.2d 384) (2010)?
In Williams v. Duffy, the defendant was charged with several offenses, including armed robbery. Pursuant to a negotiated plea bargain, the defendant pled guilty to armed robbery and received a 15-year sentence. Thereafter, the defendant filed a petition for habeas corpus, alleging his attorney rendered ineffective assistance. The habeas court set aside the defendant's conviction, finding the defendant's attorney was ineffective because he failed to advise the defendant that, pursuant to OCGA § 17-10-6.1, he would be ineligible for parole and would be required to serve the entire 15-year sentence in jail. The warden appealed, and a majority of this Court reversed, reasoning that parole eligibility or ineligibility 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.
We hold today that Williams is no longer good law and that it, and its progeny, must be overruled. We begin our analysis with the Supreme Court's decision in Hill v. Lockhart, 474 U.S. 52 (106 S.Ct. 366, 88 L.Ed.2d 203) (1985). In that case, petitioner pled guilty in state court to first degree murder and theft of property. He subsequently sought federal habeas relief on the ground of ineffective assistance of counsel, alleging his attorney misinformed him he would become eligible for parole after serving one-third of his sentence when, in fact, he was a " second offender" and was required to serve one-half of his sentence before becoming eligible for parole. The district court denied habeas relief, ruling that, even if petitioner's attorney misled petitioner about parole eligibility, petitioner's plea was not rendered involuntary. The Court of Appeals for the Eighth Circuit affirmed, holding that parole eligibility is a collateral, not direct, consequence of a guilty plea and, therefore, a defendant need not be informed of it. On certiorari, the Supreme Court affirmed. However, unlike the Court of Appeals, the Supreme Court did not examine counsel's misadvice with a " direct or collateral effects" lens. Instead, it used the two-part Strickland v. Washington  test, held that it " applies to challenges to guilty pleas based on ineffective assistance of counsel," and concluded that the petitioner was unable to satisfy the second, [297 Ga. 61] " prejudice" prong of Strickland. In reaching that conclusion, the Court found it " unnecessary to determine whether there may be circumstances under which erroneous advice by counsel as to parole eligibility may be deemed constitutionally ineffective assistance of counsel." Hill, supra at 60.
Williams cited Hill for the proposition that " [t]here is no constitutional requirement that a defendant be advised of ... collateral consequences in order for his guilty plea to be valid." Williams, supra at 581. However, although Hill espoused that proposition, it is clear that it was made in the context of a federal court's obligation to ensure that a defendant's plea is voluntary and intelligent. As noted above, Hill proposed an altogether different approach -- the Strickland v. Washington test -- to evaluate the performance of counsel who incorrectly advises a defendant about parole eligibility. In the words of the high Court: " Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.' [Cit.]" Hill, supra at 56.
In his dissenting opinion in Williams, Presiding Justice Fletcher, joined by then Chief Justice Benham, recognized the majority's error:
The majority equates " constitutionally ineffective assistance" with the deficiency prong. However, deficient performance is only " constitutionally ...