☢ test - Í

Fletcher and Benham dissent. Accord, Taylor v. State , 239 Ga.App. 329, 521 S.E.2d 375 (July 27, 1999) (no ineffective assistance where counsel failed to advise defendant that plea deal offered no recidivist sentence, but that sentence after trial would be recidivist sentence without eligibility for parole, based on Williams ); Gary v. State , 244 Ga.App. 577, 536 S.E.2d 220 (June 22, 2000); Matthews v. State , 294 Ga.App. 836, 670 S.E.2d 520 (November 25, 2008) (full court opinion); Stinson v. State , 286 Ga. 499, 689 S.E.2d 323 (February 8, 2010); Chatman v. State , 306 Ga.App. 218, 702 S.E.2d 51 (September 28, 2010); Croy v. State , 309 Ga.App. 256, 709 S.E.2d 913 (April 12, 2011) (merely failing to inform the defendant on parole eligibility is not ineffective assistance); Hall v. State , 313 Ga.App. 670, 722 S.E.2d 392 (January 25, 2012) (same as Croy ); Toro v. State , 319 Ga.App. 39, 735 S.E.2d 80 (November 29, 2012). Overruled, Alexander (May 11, 2015), above. 5. ADVICE ON IMMIGRATION CONSEQUENCES Seminal case: Padilla (March 31, 2010), below. Encarnacion v. State, 295 Ga. 660, 763 S.E.2d 463 (September 22, 2014). Following guilty plea to burglary, habeas court erred by denying relief; plea counsel’s advice on immigration consequences of plea was deficient. “[T]he State concedes and we agree that the immigration consequences of the plea were clear— a conviction for burglary constitutes an aggravated felony and will almost certainly lead to deportation proceedings under the Immigration and Nationality Act (‘INA’). It follows that the attorney was deficient when he incorrectly advised his client that he “may” face deportation as a result of his plea.” Based on Padilla (March 31, 2010), below , where “[t]he Supreme Court acknowledged that immigration law can be “complex,” and that where the law is unclear or discretionary, it may be sufficient to advise a client that he ‘may’ face deportation. The Padilla Court emphasized, however, that where the deportation consequences of a plea are ‘truly clear ... the duty to give correct advice is equally clear.’ Id. See also Smith v. State, 287 Ga. 391 (697 S.E.2d 177) (2010) (discussing significance of Padilla in case involving the withdrawal of a plea after sentencing). Included in the INA's definition of ‘aggravated felony’ is ‘a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year.’ 8 USC § 1101(a)(43)(G); see Jaggernauth v. U.S. Att'y Gen., 432 F3d 1346, 1353 (11 th Cir., 2005) (theft offense is aggravated felony if prison term is at least one year).” “The mere fact that petitioner was given first offender treatment is of no import, because federal immigration law treats a guilty plea to an aggravated felony as a conviction even if the conviction is ultimately expunged. 8 USC § 1101(a)(48)(A) and (B); see Moncrieffe v. Holder, ___ U.S. ____, ____, n. 2 (133 S.Ct. 1678, 185 L.Ed.2d 727) (2013) (although noncitizen petitioner pleaded guilty in Georgia to possession of marijuana with intent to distribute and was sentenced as a first-time offender, parties agreed petitioner's case was a ‘conviction’ as defined by the INA). … Thus, by pleading guilty to burglary, petitioner was convicted of an aggravated felony even though he was given first offender treatment. The INA provides that ‘[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable,’ 8 USC § 1227(a)(2)(A)(iii), and defines ‘deportable’ to mean that the alien is subject to mandatory, rather than discretionary, removal. 8 USC § 1227(a).” “We recognize that, except for death and taxes, one hundred percent certainty does not exist in this world and one can always imagine exceptional circumstances in which, despite the clear mandate of 8 USC § 1227(a), some noncitizens convicted of an aggravated felony might avoid removal. However, as we understand federal immigration law, those circumstances are exceptionally rare. An attorney's advice as to the likelihood of deportation must be based on realistic probabilities, not fanciful possibilities. Thus, we find that where, as here, the law is clear that deportation is mandatory and statutory discretionary relief is unavailable, an attorney has a duty to accurately advise his client of that fact. Padilla v. Kentucky, supra. It is not enough to say ‘maybe’ when the correct advice is ‘almost certainly will.’” Chaidez v. United States, 11-820, ___ U.S. ___, 133 S.Ct. 1103, 185 L.Ed.2d 149, 2013 WL 610201 (February 20, 2013). Affirming Seventh Circuit, Padilla (March 31, 2010), below, announced a new rule and thus doesn’t apply retroactively to cases already final on direct review. Defendant here was a legal permanent resident of the United States, citizen of Mexico, who pled guilty to fraud in federal court in 2004. When she applied for citizenship in 2009, immigration officials discovered her conviction and initiated removal proceedings. “To avoid removal, Chaidez sought to overturn that conviction by filing a petition for a writ of coram nobis in Federal District Court. [fn] She argued that her former attorney's failure to advise her of the immigration consequences of pleading guilty constituted ineffective assistance of counsel under the Sixth Amendment.” Padilla was decided while her petition was pending. Held, since Chaidez’s conviction was final on direct review, the new rule announced therein doesn’t apply. 1. What constitutes a “new rule.” Based on Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). “‘[A] case announces a new rule,’ Teague explained, ‘when it breaks new ground or imposes a new obligation’ on the government. 489 U.S., at 301, 109 S.Ct. 1060. ‘To put it differently,’ we continued, ‘a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.’ Ibid. And a holding is not so dictated, we later stated, unless