Smith v. The State

• Decision Date: 28 June 2010
• Docket Number: No. S09G1700.,S09G1700.
• Citation: 287 Ga. 391,697 S.E.2d 177
• Parties: SMITHv.The STATE.
• Court: Georgia Supreme Court

287 Ga. 391

697 S.E.2d 177

SMITHv.The STATE.

No. S09G1700.

Supreme Court of Georgia.

June 28, 2010.

COPYRIGHT MATERIAL OMITTED

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Sarah L. Gerwig-Moore, Amanda Heath, David Gram, Macon, for appellant.

Ashley Wright, Dist. Atty., Charles R. Sheppard, Asst. Dist. Atty., for appellee.

NAHMIAS, Justice.

Lawrence Rupert Smith filed a motion for out-of-time appeal of his 2003 plea of guilty but mentally ill to several child molestation offenses. Smith asserted that he is not a United States citizen, that the trial court violated OCGA § 17-7-93(c) ¹ and Uniform Superior Court Rule (USCR) 33.8(C)(2) ² by failing to advise him on the record that his guilty plea may have an impact on his immigration status, and that his plea counsel was constitutionally ineffective in advising him that a guilty plea cannot be appealed. The trial court summarily denied the motion, and the Court of Appeals affirmed, holding that “the effect of a guilty plea on a resident alien's immigration status is a ‘collateral consequence’ of the plea, and a guilty plea will not be set aside because the defendant was not advised of such a possible collateral consequence.” Smith v. State, 298 Ga.App. 458, 459, 680 S.E.2d 516 (2009). We granted Smith's pro se petition for a writ of certiorari ³ and directed the parties to brief the following question:

Did the Court of Appeals err in holding that a plea court's failure to follow OCGA § 17-7-93(c) would not require setting aside a guilty plea because the impact that the plea might have on a defendant's immigration status is merely a collateral consequence of the plea?

As discussed below, we conclude that the Court of Appeals did not err in holding that immigration consequences are “collateral consequences” of a guilty plea. However, that does not end our analysis, and it should not have ended that of the Court of Appeals. Under OCGA § 17-7-93(c), USCR 33.8(C)(2), and the United States Supreme Court's recent decision in Padilla v. Kentucky, 558 U.S. ----, ----, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010), defendants who are not advised by their counsel or the trial court of the impact that their guilty plea may have on their immigration status may, under some circumstances, be entitled to withdraw their guilty pleas.

In this case, although the State concedes that the trial court did not comply with OCGA § 17-7-93(c) and USCR 33.8(C)(2), Smith cannot, on the face of the current record, show harm, or “manifest injustice,” as a result. Consequently, he is not entitled to a direct appeal, timely or out-of-time, and his plea counsel could not have been ineffective in failing to advise him to appeal. For relief Smith must turn to habeas corpus. In that context, he could not raise a claim based on violation of the statute or rule, but he may seek to raise the parallel ineffective assistance of counsel claim recognized in Padilla. We therefore affirm the judgment below, although on somewhat different grounds.

1. The record on appeal shows as follows. Smith is a native of Panama who has lived in the United States for a number of years. On November 20, 2001, a Richmond County grand jury indicted him on four counts of child molestation, four counts of enticing a child for indecent purposes, five counts of aggravated child molestation, and one count of incest. On April 25, 2003, after a series of delays to ensure that Smith was competent, he pled guilty but mentally ill to three counts of child molestation and two counts of aggravated child molestation, and the remaining nine counts against him were nolle prossed. At the plea hearing, the trial court ensured that Smith was advised of his Boykin rights, see Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), but neither the hearing transcript nor the Acknowledgment and Waiver of Rights form that Smith signed references any immigration consequences of the plea. The trial court sentenced Smith to a total of 80 years, with 50 years to be served in confinement followed by 30 years on probation.

More than five years later, on October 10, 2008, Smith filed a pro se “Motion for Out-of-Time Appeal” and requested a hearing. In the motion, Smith alleged that his right to appeal his guilty plea was lost not through his own lack of diligence but rather due to his plea counsel's ineffectiveness. Smith asserted that on the date of his sentencing, he told his counsel that he wanted to appeal, but counsel said that he could not appeal a guilty plea. Smith contended that a timely appeal would have been successful, because the trial court violated OCGA § 17-7-93(c) and USCR 33.8. The trial court summarily denied the motion, without a hearing, and Smith appealed.

The Court of Appeals affirmed, acknowledging the alleged violation of OCGA § 17-7-93(c) but relying on its precedent holding that a guilty plea will not be set aside due to the failure to advise the defendant of potential immigration consequences, because such consequences are “collateral.” Smith, 298 Ga.App. at 459 & n. 2, 680 S.E.2d 516 (citing McLeod v. State, 251 Ga.App. 371, 372, 554 S.E.2d 507 (2001)). We granted Smith's certiorari petition.

2. (a) As a matter of constitutional due process, before a defendant pleads guilty, the trial court must advise him of the “direct” consequences of entering the plea, but not of all the potential “collateral” consequences, in order for the guilty plea to be considered knowing and voluntary. See Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (holding that the standard for voluntariness of guilty pleas is that the plea be “ ‘entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel’ ” (citation omitted)); Stinson v. State, 286 Ga. 499, 500, 689 S.E.2d 323 (2010) (explaining that “the defendant's lack of knowledge of such collateral consequences does not affect the voluntariness of the plea”).⁴ Direct consequences may be described as those within the sentencing authority of the trial court, as opposed to the many other consequences to a defendant that may result from a criminal conviction. See Padilla, 558 U.S. at ----, 130 S.Ct. at 1481. See also Brantley v. State, 290 Ga.App. 764, 766, 660 S.E.2d 846 (2008) (describing collateral consequences as those that do not lengthen or alter the sentence pronounced by the trial court). Accordingly, neither this Court nor the U.S. Supreme Court has held that any action taken by persons or agencies other than the sentencing court constitutes a direct consequence of a guilty plea. See, e.g. Williams v. Duffy, 270 Ga. 580, 581, 513 S.E.2d 212 (1999) (holding that parole eligibility is a collateral consequence, because “ ‘eligibility or ineligibility for parole is not a “ consequence” of a plea of guilty, but a “matter of legislative grace” or a “ consequence of the withholding of legislative grace,” ’ ” which “in no way lengthen[s] the sentence itself” (citations omitted)); Williams v. State, 278 Ga.App. 42, 45, 628 S.E.2d 128 (2006) (holding that defendants need not be advised of the potential effect of a guilty plea on rights such as “the right to bear arms, obtain a professional license, or vote”); Cornwell v. Kirwan, 270 Ga.App. 147, 149-150, 606 S.E.2d 1 (2004) (effect of First Offender plea on defendant's license to trade securities is a collateral consequence); Reed v. State, 251 Ga.App. 606, 607, 554 S.E.2d 792 (2001) (eligibility to have a sentence reviewed by the Sentence Review Panel is a collateral consequence).

If a parole decision that will be made by a state agency pursuant to state law is a collateral consequence of a guilty plea, see Williams v. Duffy, 270 Ga. at 581, 513 S.E.2d 212, then it would seem to follow that an immigration decision that will be made by a federal agency under federal law is also a collateral consequence. The Court of Appeals reached that conclusion in McLeod, 251 Ga.App. at 372, 554 S.E.2d 507, and that is also the view of the vast majority of federal and state courts that have considered the issue. See, e.g. State v. Zarate, 264 Neb. 690, 651 N.W.2d 215, 222-223 (2002) (adopting that view and citing supporting cases from six federal circuit courts and 13 states, with only one state to the contrary). See also Garcia v. State, 152 Ga.App. 889, 889, 264 S.E.2d 323 (1980) (holding that “[t]he subsequent action of the federal parole authorities was a collateral consequence over which the superior court had no control and, as such, did not affect the voluntariness or validity of the guilty plea”); Davis v. State, 151 Ga.App. 736, 736, 261 S.E.2d 468 (1979) (holding that “the trial court is not required to inform a defendant of all the possible collateral consequences of his plea including those at the hands of a different sovereign,” where the defendant's nolo contendere plea resulted in a federal indictment).

(b) Padilla v. Kentucky, which was decided after the Court of Appeals' decision in this case, raises some doubt about this view. In Padilla, the United States Supreme Court considered a claim that, to provide effective assistance of counsel as required by the Sixth Amendment, a criminal defendant's counsel “must inform her client whether his plea carries a risk of deportation.” 558 U.S. at ----, 130 S.Ct. at 1486. In addressing this issue, the Court explained that “[o]ur law has enmeshed criminal convictions and the penalty of deportation for nearly a century,” and “recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders.” Id. at ----, 130 S.Ct. at 1481. Adding that “we find it ‘most difficult’ to divorce the penalty from the conviction in the deportation context,” and “we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult,” the Court stated that “[d]eportation as a...