Taylor v. The State, A10A0026.

• Citation: 304 Ga.App. 878,698 S.E.2d 384
• Decision Date: 08 July 2010
• Docket Number: No. A10A0026.,A10A0026.
• Parties: TAYLORv.The STATE.
• Court: United States Court of Appeals (Georgia)

304 Ga.App. 878

698 S.E.2d 384

TAYLORv.The STATE.

No. A10A0026.

Court of Appeals of Georgia.

July 8, 2010.

Anthony B. Williams, Jimmonique R.S. Rodgers, Fort Gordon, for appellant.

Tom Durden, Dist. Atty., Jon Hope, Asst. Dist. Atty., for appellee.

BERNES, Judge.

Curtis Lane Taylor appeals the trial court's order denying his motion to withdraw his guilty plea to two counts of child molestation. Taylor contends that his trial counsel failed to advise him that entering a plea of guilty to child molestation would necessitate that he comply with the requirements of Georgia's sex offender registry statute and participate in a sex offender treatment program. As such, Taylor contends that he was entitled to withdraw his guilty plea based on ineffective assistance of counsel. We affirm the trial court's order to the extent that it held that Taylor's trial counsel was not ineffective for failing to advise Taylor that he would have to participate in a sex offender treatment program. However, in light of the United States Supreme Court's recent decision in Padilla v. Kentucky, ---U.S. ----, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), we agree with Taylor that it is constitutionally deficient for counsel not to advise his client that pleading guilty will make him subject to the sex offender registration requirements. We therefore reverse the trial court's order to the extent that it held otherwise and remand for further proceedings consistent with this opinion.

The record reflects that on June 18, 2007, Taylor entered a guilty plea to two counts of child molestation under a negotiated plea agreement with a recommended sentence of ten years, to serve one year in confinement and the remaining nine years on probation. During the plea colloquy, the trial court informed Taylor that if he proceeded to trial, he was entitled to a presumption of innocence, and that the state would have to prove his guilt on the charged offenses beyond a reasonable doubt. The trial court further apprised Taylor of the maximum possible sentence he could receive and that by pleading guilty he was waiving his rights to a jury trial, to cross-examine witnesses, to subpoena witnesses on his own behalf, to testify or present other evidence at trial, and not to incriminate himself. Additionally, the trial court pointed out to Taylor that under the negotiated plea agreement, he would be subject to certain special conditions of probation, including that he receive “psychological screening and treatment as recommended” by the probation office, such that “if they recommend treatment to you as a result of the screening, you have to comply with the recommendation.” Taylor stated that he understood the terms of the negotiated plea agreement, that he desired to plead guilty to the charges, that he had not been coerced or threatened into making the decision, and that he freely and voluntarily had decided to enter the plea. The trial court accepted the negotiated plea and imposed the recommended sentence.

On June 27, 2009, Taylor met with his assigned probation officer, who explained to Taylor that he would be subject to the requirements imposed by Georgia's sex offender registry statute, OCGA § 42-1-12, upon his release from confinement. The probation officer also explained to Taylor that under the sex offender treatment program administered by the state probation office, he would be required to “attend and participate fully and pay for any counseling or treatment deemed necessary by the probation office.” Moreover, the officer informed Taylor that as part of the screening process and any recommended treatment, he would be required to submit to polygraph tests.

Following his initial meeting with the probation officer, Taylor filed a handwritten letter with the trial court indicating his desire to withdraw his guilty plea on June 29, 2007. The trial court deemed the pro se handwritten letter as a timely filed motion to withdraw the guilty plea. ¹ Taylor was appointed new counsel, who filed an amended motion arguing that Taylor should be allowed to withdraw his guilty plea because he received ineffective assistance from his trial counsel. In this respect, Taylor alleged that his trial counsel had never advised him that he would be subject to the requirements of the sex offender registry statute or the state probation office's sex offender treatment program as part of his negotiated plea.

The trial court conducted a hearing on the motion. Taylor's trial counsel testified that he could not recall whether he had advised Taylor of the sex offender registry requirements or of the specifics of the state probation office's sex offender treatment program. Counsel further testified, however, that it was his customary practice to advise his clients on these matters before they pled guilty. Taylor testified at the hearing that he first learned of the registry requirements and treatment program in his initial meeting with his probation officer, and that he would have “taken [his] chances in trial” had he been advised of these matters before pleading guilty.

Following the hearing, the trial court denied Taylor's motion to withdraw his guilty plea. The trial court reasoned that even if one assumed that Taylor's counsel had not advised him of the registry requirements and treatment program before he pled guilty, these matters were collateral consequences of the guilty plea. As such, the trial court concluded that the failure to advise of these matters did not constitute ineffective assistance of counsel. This appeal followed.²

“It is well settled that after sentence is pronounced, ... permission to allow the withdrawal of a guilty plea lies within the trial court's sound discretion, and the court's discretion will not be disturbed unless that discretion is manifestly abused.” (Citation and footnote omitted.) Maples v. State, 293 Ga.App. 232, 234(2), 666 S.E.2d 609 (2008). If the motion to withdraw is predicated on a claim of ineffective assistance of counsel, the defendant must meet the two-prong test of deficient performance and prejudice enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Heath, 277 Ga. 337, 338, 588 S.E.2d 738 (2003). See also Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Williams v. Duffy, 270 Ga. 580, 581(1), 513 S.E.2d 212 (1999). With respect to deficient performance, the test “is whether the attorney's advice falls within the range of competence of attorneys in criminal cases.” (Citation and punctuation omitted.) Williams, 270 Ga. at 581(1), 513 S.E.2d 212. The test for prejudice in this context is whether there is a reasonable probability that, but for his counsel's deficiency, the defendant “would not have pleaded guilty and would have insisted on going to trial.” Heath, 277 Ga. at 338, 588 S.E.2d 738, quoting Hill, 474 U.S. at 59, 106 S.Ct. 366. See also Williams, 270 Ga. at 581(1), 513 S.E.2d 212. If the defendant is unable to satisfy either the deficiency or prejudice prong of the test, his ineffective assistance claim fails. See Freeman v. State, 282 Ga.App. 185, 187(2), 638 S.E.2d 358 (2006). Guided by these principles, we turn to Taylor's ineffective assistance claim predicated upon his trial counsel's alleged failure to advise him of the requirements of the sex offender registry statute and the state probation office's sex offender treatment program.

1. The trial court concluded that the requirements of the sex offender registry statute, OCGA § 42-1-12, were a collateral consequence of Taylor's plea such that even if his trial counsel failed to advise him of the requirements, it did not rise to the level of constitutionally deficient performance. It is true that the Supreme Court of Georgia has held:

If a defendant's actual knowledge of ... collateral consequences is not a prerequisite to his entry of a knowing and voluntary guilty plea, his lack of knowledge of those collateral consequences cannot affect the voluntariness of the plea. Accordingly, counsel's failure to advise the defendant of the collateral consequences of a guilty plea cannot rise to the level of constitutionally ineffective assistance.

(Citation omitted.) Williams, 270 Ga. at 581-582(1), 513 S.E.2d 212 (1999).³ Notably, however Padilla, --- U.S. ----, 130 S.Ct. 1473, which was decided while the current appeal was pending, calls into question the application of the direct versus collateral consequences distinction in the context of ineffective assistance claims.

In Padilla, the United States Supreme Court held that constitutionally competent counsel must advise their noncitizen clients whether their guilty plea carries a risk of deportation. Padilla, --- U.S. at ----, 130 S.Ct. at 1478. The Supreme Court noted that it had “never applied a distinction between direct and collateral consequences to define the scope of constitutionally reasonable professional assistance required under Strickland.” (Citation and punctuation omitted.) Id. at ----, 130 S.Ct. at 1481. The Court went on to conclude that even if deportation is a collateral consequence of a guilty plea, the failure to advise a client of the risk of deportation in pleading guilty constitutes deficient performance, given the “unique nature of deportation,” which has been “long recognized [as] a particularly severe penalty, [although] not, in a strict sense, a criminal sanction,” and which is “uniquely difficult to classify as either a direct or a collateral consequence.” (Citation and punctuation omitted.) Id. at ----, 130 S.Ct. at 1481-1482.⁴

In reaching this conclusion, the Supreme Court in Padilla relied on several factors: the fact that prevailing professional norms support the view that counsel must advise their clients of the risk of deportation, --- U.S. at ----, 130 S.Ct. at 1482; the fact that deportation is “intimately related to the criminal process” in that it is “nearly an automatic result” following certain criminal...