Kennedy v. Kohnle
| Decision Date | 19 February 2018 |
| Docket Number | S17A1419 |
| Citation | 810 S.E.2d 543 |
| Parties | KENNEDY v. KOHNLE. |
| Court | Georgia Supreme Court |
Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ashleigh D. Headrick, Assistant Attorney General, for appellant.
Macklyn A. Smith, for appellee.
This case raises a question regarding the retroactive application of Alexander v. State, 297 Ga. 59, 772 S.E.2d 655 (2015), in which we held that an attorney’s failure to counsel his client about parole eligibility may give rise to a claim of ineffective assistance of counsel. Teresa Lynn Kohnle pleaded guilty to felony murder in December 2010, before we decided Alexander but after the United States Supreme Court issued its opinion in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), on which we relied in deciding Alexander. Sentenced to life in prison, Kohnle filed a petition for a writ of habeas corpus, alleging that her plea counsel was ineffective in several ways, including that he failed to inform her of the parole eligibility implications of a life sentence. The habeas court granted Kohnle’s petition, relying on Alexander to conclude that Kohnle’s counsel had rendered ineffective assistance. The Warden appeals, arguing that the habeas court erred in applying Alexander retroactively. We agree with the Warden that the habeas court erred by applying Alexander to find that plea counsel performed deficiently by failing to advise Kohnle that she would not be eligible for parole for 30 years if she pleaded guilty, and thus we vacate the habeas court’s order. But we remand for the habeas court to consider Kohnle’s claim that counsel was deficient for affirmatively misinforming her about parole eligibility matters, something we had held could support a claim of ineffective assistance long before Kohnle entered her plea. See Smith v. Williams, 277 Ga. 778, 778–779 (1), 596 S.E.2d 112 (2004).
Kohnle was indicted in August 2008 for malice murder, felony murder, and two counts of first degree arson in connection with the June 2007 death of her husband in a house fire. At the December 2010 plea hearing, Kohnle suggested to the trial court that she participated in setting the fire at her husband’s direction as part of a financial plot and that she never intended for him to be harmed. The trial court stated that he would accept the guilty plea. Moving into sentencing, Kohnle told the court, "I just beg that you have mercy on me for this, because I know I didn’t mean any harm." The trial court asked Kohnle whether she understood that he had "no control over the parole board." Kohnle replied:
Sentenced to life, Kohnle later moved pro se to withdraw her guilty plea; the trial court denied her motion as untimely, and it appears she did not appeal. On December 8, 2014, Kohnle filed through counsel a petition for a writ of habeas corpus. The petition alleged that Kohnle’s plea counsel was ineffective in several ways, including various alleged failures in his investigation and preparation of the case, that he told her that accepting a plea for life with parole was the only "viable alternative," and that he failed to advise her as to the meaning of a life sentence.
The habeas court held an evidentiary hearing in which plea counsel testified that Kohnle had acknowledged in writing that parole was entirely up to the State Board of Pardons and Paroles. Asked whether that document noted that she could not be paroled for 30 years,1 plea counsel testified, "I think we only spoke in terms of the potential for parole ever." He also testified that it was his practice to tell clients that "the parole board can change rules at any time," adding, "the things that they consider could be changed without notice." He later added that he thought Kohnle knew she would have to spend at least 30 years in custody, based on "just my normal talks that I have with clients" and that, based on a conversation with the parole officer that he relayed to her, he was "confident that I told her correctly and adequately what she was facing with this plea." Pressed by the habeas court, plea counsel acknowledged that he did not remember a "specific conversation" in which he advised her that she would not be parole eligible for 30 years. Kohnle testified that, despite her inquiries, she did not learn until she was transferred to prison after her plea that she had to serve 30 years before she would be eligible for parole. She testified that she would have taken her chances at trial had she known this at the time of her plea.
On February 13, 2017, the habeas court granted relief on the ground that plea counsel performed deficiently under Alexander by not informing Kohnle that she would be required to serve 30 years in prison before being eligible for parole. Citing Kohnle’s testimony that she would not have pleaded guilty had she known about what the habeas court termed "the mandatory minimum sentence[,]" the habeas court found that there was a reasonable probability that, but for counsel’s error, Kohnle would have gone to trial. The habeas court rejected Kohnle’s claims based on counsel’s allegedly urging her to accept a plea and his alleged failures of investigation and preparation. The Warden appeals, raising as her sole enumeration of error that the habeas court should not have found counsel deficient because, at the time of Kohnle’s plea, counsel had no affirmative duty to advise his client about parole consequences.
A conviction based on a guilty plea may be challenged on the ground that defense counsel was ineffective. See Padilla, 559 U.S. at 364, 130 S.Ct. 1473 ; Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Kohnle must show that her counsel’s performance was deficient, i.e., that no reasonable attorney would have done what the lawyer did, or failed to do what the lawyer did not. See Strickland v. Washington, 466 U.S. 668, 687–689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Worsley, 293 Ga. 315, 323 (3), 745 S.E.2d 617 (2013). She also must demonstrate prejudice, i.e., that "there is a reasonable probability that, but for counsel’s errors, [she] would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59, 106 S.Ct. 366. We adopt the habeas court’s findings of fact unless they are clearly erroneous, but we apply the law to the facts de novo in determining whether trial counsel performed deficiently and whether any deficiency was prejudicial. See Humphrey v. Morrow, 289 Ga. 864, 866, 717 S.E.2d 168 (2011).
The Warden appeals only the finding of deficient performance, and does not challenge the finding of prejudice. Moreover, the Warden does not challenge the habeas court’s factual determination that counsel did not inform Kohnle that she would be required to serve 30 years in prison before being eligible for parole. The sole question raised by the Warden is whether the habeas court properly applied Alexander, a case decided more than four years after Kohnle entered her plea, to find deficient performance.
In Alexander, we extended the United States Supreme Court’s decision in Padilla to hold that an attorney’s failure to offer advice concerning certain "collateral consequence[s]" of a plea may give rise to a claim of ineffective assistance of counsel under Strickland. Alexander, 297 Ga. at 62–64, 772 S.E.2d 655. In particular, we held 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. Id. at 65, 772 S.E.2d 655. We based this conclusion on our observations that parole ineligibility is a "drastic penalty" and that the recidivist statute is succinct, clear, and definite and a "prominent feature of our criminal justice system" such that those subject to it should be given accurate information about it. Id. We explicitly overruled Williams v. Duffy, 270 Ga. 580, 513 S.E.2d 212 (1999), in which we had held that ineligibility for parole has a mere "collateral effect" on a criminal sentence and, therefore, a lawyer’s failure to inform his client about parole eligibility cannot constitute deficient performance. See Alexander, 297 Ga. at 60, 772 S.E.2d 655.
The question before us today is whether Alexander applies retroactively to Kohnle’s conviction, which became final before Alexander was decided. The answer to this question depends on whether Alexander announced a "new rule" or was instead dictated by Padilla. A new rule generally applies only to cases that are still on direct review when the new rule is announced. See State v. Sosa, 291 Ga. 734, 737 (2), 733 S.E.2d 262 (2012) (citing Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007) ; Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion) ).2 " ‘[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.’ " Alford v. State, 287 Ga. 105, 106, 695...
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