☢ test - Í
facing more serious charges of rape, kidnapping, and aggravated assault. Based upon the negotiated plea agreement, James was allowed to enter a guilty plea to false imprisonment and simple assault and avoid the more serious charges, which were nolle prossed. Moreover, when trial counsel expressed uncertainty regarding how James's probation revocations would affect his parole eligibility, James did not inquire further. Under these circumstances, the trial court was authorized to find that James was not primarily concerned about parole eligibility, but rather was concerned about proceeding to trial on the more serious charges before a jury that he did not deem as being favorable. Consequently, the trial court was authorized to find that the alleged deficiency was not prejudicial and did not present a manifest injustice requiring withdrawal of the guilty plea. [fn] See Brower v. State, 230 Ga.App. 125, 127(3) (495 S.E.2d 600) (1998) (finding that ‘[t]he trial court could properly conclude that any misunderstanding [defendant] had regarding the use of his prior criminal record did not alter his decision to plead guilty rather than risk a guilty verdict and harsh sentence.’); Beck v. State, 222 Ga.App. 168, (473 S.E.2d 263) (1996) (concluding that the defendant's desire to plead guilty to avoid prosecution for additional crimes or to avoid receiving a longer sentence does not prevent a plea from being free and voluntary).” State v. Patel, 280 Ga. 181, 626 S.E.2d 121 (January 30, 2006). Habeas court properly ordered that defendant should be allowed to withdraw plea based on affirmative erroneous legal advice on collateral effects of plea . Defendant medical doctor was charged with sexual battery committed against patients; he pled nolo as a first offender based on advice of counsel, who was specially retained to give advice on how the plea would affect his ability to practice medicine. Counsel led defendant to believe that the likely result would be a six-month suspension of his license to practice; in addition to this, however, defendant “was prohibited for ten years from participating in Medicare, Medicaid, and all federal health care programs pursuant to the mandatory exclusion of 42 USC § 1320a-7 and corresponding regulations.” “‘[T]he right to effective assistance of counsel ... may in a particular case be violated by even an isolated error of counsel if that error is sufficiently egregious and prejudicial. [Cits.]’ Murray v. Carrier, 477 U.S. 478, 496(III), 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (citing United States v. Cronic, 466 U.S. 648, 657, 104 S.Ct. 2039, 80 L.Ed.2d 657, fn. 20 (104 S.C. 2039, 80 L.Ed.2d 657) (1984)). See also Kimmelman v. Morrison, 477 U.S. 365, 383(III)(A), 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Shorter v. Waters, 275 Ga. 581, 584, 571 S.E.2d 373 (2002) (ineffective assistance of appellate counsel). Thus, an attorney’s misunderstanding of the law can result in ineffective assistance when it leads to advice on a plea bargain which incorrectly assesses the legal consequences of the plea. 3 LaFave, Israel & King, Criminal Procedure, § 11.10(c), p. 721 (2nd ed.1999). Although there is no constitutional requirement that a defendant be informed of collateral consequences of a plea, a lawyer’s affirmative misrepresentations about those consequences in response to his client’s specific inquiries may constitute ineffective representation. Smith v. Williams, [277 Ga. 778-779(1) (596 S.E.2d 112) (2004)]; Rollins v. State, [277 Ga. 488, 489-490(1), 591 S.E.2d 796 (2004)]. See also Crabbe v. State, 248 Ga.App. 314, 315, 546 S.E.2d 65 (2001). The affidavits of Dr. Patel and his healthcare attorney and the testimony of lead counsel furnished the habeas court with ample evidence that Dr. Patel made specific inquiry regarding the effect of the nolo plea on his future participation in federal health care programs, and that his trial counsel responded with affirmative misrepresentations, which were caused by the failure to perform basic research with regard to Dr. Patel’s question. Such acts of defense counsel fall well below the objective standard of competence required for attorneys in criminal cases. Rollins v. State, supra at 491(2), 591 S.E.2d 796. Furthermore, the evidence at the habeas hearing specifically established that Dr. Patel, having previously rejected a proposed plea under North Carolina v. Alford, 400 U.S. 25 (91 S.Ct. 160, 27 L.Ed.2d 162 (1970) because of its potential long-term impact on his medical practice, would have insisted on going to trial had he known that the plea of nolo contendere would result in mandatory exclusion from federal programs such as Medicare and Medicaid. Rollins v. State, supra at 492(2), 591 S.E.2d 796. Compare State v. Sabillon, 280 Ga. 1, 622 S.E.2d 846 (November 21, 2005). Accordingly, the habeas court did not err in finding that trial counsel made affirmative misrepresentations to Dr. Patel which induced him to enter the nolo plea. Having so found, the habeas court properly ordered that his sentence be stricken and that he be permitted to withdraw his plea. Rollins v. State, supra at 492(3), 591 S.E.2d 796.” Accord, Tillman v. Gee , 284 Ga. 416, 667 S.E.2d 600 (October 6, 2008) (Habeas court properly granted petition where defendant was erroneously advised that, upon pleading guilty to armed robbery, he would be eligible for parole after serving 90 percent of his sentence. In fact, as a recidivist, defendant was not eligible for parole.). State v. Sabillon, 280 Ga. 1, 622 S.E.2d 846 (November 21, 2005). Habeas court erred in granting defendant’s petition on grounds of ineffective assistance; even though defense counsel acknowledged giving incorrect advice about effects of first-offender plea on defendant’s immigration status, defendant has presented no evidence of prejudice as a result, i.e., “whether there was a reasonable probability, rather than just an abstract possibility, that he would have chosen to go to trial.” Accord, Patel (January 30, 2006). Clue v. State, 273 Ga.App. 672, 615 S.E.2d 800 (June 15, 2005). “Georgia precedent establishes that a trial counsel’s
Made with FlippingBook Ebook Creator