ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
Lam, a Vietnamese citizen and lawful permanent resident of
the United States, appeals from the trial court's denial
of his motion seeking to vacate and declare void a negotiated
guilty plea agreement. Although Lam was sentenced under the
provisions of Georgia's First Offender Act and was
discharged without an adjudication of guilt after
successfully fulfilling the terms of his sentence, the
Immigration and Naturalization Service of the United States
Department of Justice nevertheless issued a notice informing Lam
that he was subject to removal from the United States (the
"Notice"). For the following reasons, we affirm the
trial court's determination that the federal
government's position that Lam remains subject to removal
does not render void his plea agreement and discharged first
undisputed facts are as follows. After agreeing to accept a
negotiated guilty plea in 2006 to the charges of aggravated
assault, theft by receiving stolen property, and possession
of tools for the commission of a crime, Lam was sentenced as
a first offender to serve 90-120 days in the boot camp
program, followed by five years probation. Lam successfully
fulfilled the terms of his sentence and probation, and the
trial court thereafter issued an order discharging him
without an adjudication of guilt and exonerating him of any
criminal purpose in accordance with the provisions of the
First Offender Act.
despite Lam's discharge and exoneration under Georgia
law, the federal government issued the Notice declaring that
Lam was subject to removal from the United States on the
ground that he had been "convicted" of aggravated
assault and theft by receiving stolen property in violation
of the federal Immigration and Nationality Act (INA). See 8
U.S.C. §1101 et seq. The INA provides that any
"[a]ny alien who is convicted of an aggravated felony at
any time after admission is deportable." 8 U.S.C.
§1227 (a) (2) (A) (iii). Further, it includes both "a
crime of violence" and "a theft offense (including
receipt of stolen property)" in its definition of
"aggravated felony, " see 8 U.S.C. 1101 (a) (43)
(F), (G), and broadly defines the term "conviction"
a formal judgment of guilt . . . entered by a court or, if
adjudication of guilt has been withheld, where . . . the
alien has entered a plea of guilty or . . . has admitted
sufficient facts to warrant a finding of guilt, and . . . the
judge has ordered some form of punishment, penalty, or
restraint on the alien's liberty to be imposed.
See 8 U.S.C. 1101 (a) (48) (A).
filed a motion in the superior court seeking to vacate his
plea agreement and sentence, contending that he relied to his
detriment on the agreement and did not achieve the benefit of
the bargain in light of the federal government's removal
order. The trial court denied the motion and this appeal
argues that the trial court erred in holding that he did not
rely to his detriment on the first offender terms of his
sentence. Specifically, the trial court held that although it
granted Lam's request to sentence him as a first
offender, first offender treatment was never a part of the
negotiated plea itself or promised by the State in return for
Lam's plea of guilty.
review of the plea hearing transcript shows that first
offender treatment was not included in the State's
initial recitation of the terms of the negotiated plea;
indeed, the issue was not raised until the trial court
inquired about it after reviewing with Lam the waiver of his
constitutional rights. It follows that the record supports
the trial court's finding that Lam did not rely to his
detriment on being sentenced under the First Offender Act
when he agreed to plead guilty. See generally Davis v.
State, 295 Ga.App. 623, 624 (673 S.E.2d 19) (2009)
(noting that, upon appellate review of a guilty plea,
"the trial court is the final arbiter of all factual
disputes raised by the evidence[;] [i]f evidence supports the
trial court's findings, we must affirm") (citation
and punctuation omitted).
further argues that the trial court erred in concluding that
he received the benefit of his bargain under the plea
agreement. He contends specifically that because his plea
resulted in a conviction under the INA as that term is
defined by the federal statute, the trial court was unable to
exonerate him of guilt and discharge him as agreed.
First Offender Act, however, is a function of Georgia law.
See OCGA § 42-8-60 et seq. In accordance with the
provisions of that Act, the trial court issued an order
declaring Lam discharged under Georgia law without an
adjudication of guilt or a criminal conviction, and
exonerated him of any criminal purpose. See OCGA §
42-8-60 (e), (i). The trial court further directed that
Lam's discharged plea shall not affect his civil rights
or liberties or disqualify him from any application for
employment or appointment to office. See id; OCGA §
42-8-63. Thus, the trial court fully complied with the
requirements of the First Offender Act. See id.
Congress elected to adopt such a broad definition of
"conviction" in the INA is an issue of public
policy that falls squarely within its domain. See generally
Kleindienst v. Mandel, 408 U.S. 753, 766 (V) (92
S.Ct. 2576, 33 L.Ed.2d 683) (1972). It does nothing to render
void Lam's guilty plea under Georgia's First Offender
Act. See generally Ali v. U.S. Atty. Gen., 443 F.3d
804, 810 (III) (B) (1) (11th Cir. 2006) ("[A] state
conviction is a conviction for immigration purposes,
regardless of whether it is later expunged under a state
rehabilitative statute, so long as it satisfies the
requirements of [8 U.S.C.] § 1101(a) (48) (A).")
(citation and punctuation omitted); Resendiz-Alcaraz v.
U.S. Atty. Gen., 383 F.3d 1262, 1268 (II) (A) (11th Cir.
2004) ("[T]he statutory definition [of
"conviction" in the INA] on its face appears to
negate for immigration purposes the effect of state
rehabilitative measures that purport to expunge or otherwise
remove a conviction.").