State v. Sabillon

• Decision Date: 21 November 2005
• Docket Number: No. S05A1190.,S05A1190.
• Citation: State v. Sabillon, 622 S.E.2d 846, 280 Ga. 1 (Ga. 2005)
• Parties: STATE v. SABILLON.
• Court: Georgia Supreme Court

280 Ga. 1

622 S.E.2d 846

STATE v. SABILLON.

No. S05A1190.

Supreme Court of Georgia.

November 21, 2005.

Gwendolyn Keyes Fleming, Dist. Atty., Barbara Blaine Conroy, Deputy Asst. Dist. Atty., Elisabeth G. Macnamara, Leonora Grant, Asst. Dist. Atty., for Appellant.

Jean C. Sperling-Cavallero, Campano & Sperling, Chamblee, for Appellee.

MELTON, Justice.

Following the grant of Jose Sabillon's petition for writ of habeas corpus, the State appeals, contending that the trial court erred when it determined that Sabillon, a resident alien, received ineffective assistance of counsel because his attorney informed him that his immigration status would not be affected by entering a guilty plea for the crime of felony possession of marijuana. For the reasons set forth below, we find that Sabillon failed to present any competent evidence showing that he was prejudiced in this case. Accordingly, we reverse.

The record shows that, on July 15, 1995, Sabillon, a resident alien from Honduras, pled guilty to one count of felony possession of marijuana. Sabillon admitted to ownership of 170 grams of marijuana found in his home and further contended that the marijuana was for his personal use. Sabillon was sentenced as a first offender to four years of probation. On July 15, 1999, Sabillon completed his first offender sentence, and he was discharged without an adjudication of guilt. Sometime later, the INS initiated deportation proceedings against Sabillon in response to his guilty plea and conviction,¹ and, on November 29, 2004, Sabillon filed a petition for writ of habeas corpus, contending that he had received ineffective assistance of counsel because, prior to entering his guilty plea, his trial counsel advised him that the plea would have no effect on his immigration status. The trial court granted Sabillon's petition, and the State now appeals this ruling.

When a defendant contends that his trial counsel affirmatively misrepresented the collateral consequences of a guilty plea, he has grounds to argue that he received ineffective assistance of counsel, and his claim must be analyzed under the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Rollins v. State, 277 Ga. 488(1), 591 S.E.2d 796 (2004).

All criminal defendants, including those who waive their right to trial and enter a guilty plea, are entitled to effective legal assistance. In order to show a constitutional violation of this Sixth Amendment right, [Sabillon] must (1) establish that [his] counsel's performance fell outside the range of competence for attorneys in criminal cases and (2) "establish the reasonable probability that, but for counsel's errors, [he] would not have pleaded guilty and would have insisted on going to trial. [cit]."

Id. at 490-491(2), 591 S.E.2d 796.

In order to satisfy his burden of proving ineffective assistance, Sabillon, who waived his attendance at the habeas hearing,² offered only two pieces of evidence, a sworn declaration by his trial attorney and one of his own. While the trial attorney's declaration was admitted into evidence by prior agreement of the parties, the trial court excluded Sabillon's affidavit as hearsay, noting that the State had no way of cross-examining Sabillon. Sabillon acquiesced in this ruling. As a procedural matter, the trial court properly excluded Sabillon's affidavit. OCGA § 9-11-48 requires that, if a party intends to introduce an affidavit at the habeas hearing, the affidavit must be served on the opposing party at least ten days in advance of the hearing. In this case, it is undisputed that Sabillon presented his affidavit to the State for the first time on the day of the hearing. Therefore, Sabillon's affidavit was correctly excluded, and the only evidence supporting Sabillon's claim of ineffective assistance was the following averment from his trial counsel's declaration:

During the course of my representation of Mr. Sabillon, I advised him that once the conviction was discharged under the First Offender Act, that he would no longer have a criminal conviction for all practical purposes and that as a result this conviction would not affect his immigration status. Had I been aware at the time of this fact, I would have encouraged Mr. Sabillon to exercise his right to have a trial and I would have been prepared for trial. In view of the fact that I feel that I misadvised Mr. Sabillon, I feel that my representation of him was ineffective and that since he relied on my advice to his detriment, that his guilty plea was not knowingly and voluntarily entered. I would appreciate any and all consideration be given to Mr. Sabillon as he did not realize the true legal consequences of entering this plea.

During the habeas hearing, the State conceded that the performance of Sabillon's trial counsel fell outside the range of competence for attorneys in criminal cases,³ but argued that Sabillon had failed to prove that, but for this incompetence, he would have chosen to go to trial. Therefore, the question now before us is whether, under the facts of this case, the conclusory statement by Sabillon's trial attorney that Sabillon "relied on my advice to his detriment [and] his guilty plea was not knowingly and voluntarily entered" satisfies the prejudice prong of Strickland, supra, without any further evidence.

To show prejudice, Sabillon must establish the reasonable probability that, but for his counsel's errors, he would have proceeded to trial rather than enter a guilty plea. Rollins, supra. Here, the...