☢ test - Í

559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (March 31, 2010), recently held that defendants may sometimes be entitled to withdraw guilty pleas when not advised of the immigration consequences, and the trial court here admittedly failed to do so, because of the procedural status of the case, defendant isn’t entitled to relief here because he didn’t allege ineffective assistance of counsel in connection with the failure, instead focusing on the court’s failure. Padilla focused on the violation of defendant’s constitutional right to effective counsel; the trial court’s failures here, on the other hand, are violations of court rule and statute, but do not rise to a constitutional level, and in any event the record here fails to show harm in the nature of “manifest injustice.” Instead, defendant may need to seek habeas relief based on ineffective assistance. Although a trial court has a duty by statute and by duty to give such a warning, “the trial court's failure to advise a defendant regarding the potential impact does not require that the guilty plea be set aside as a matter of constitutional law.” “[T]o show that a manifest injustice resulted in this context, it is clear that the defendant will need to establish, at a minimum, three facts. First, the defendant will have to show that his guilty plea actually ‘may have an impact on his or her immigration status.’ … [C]onclusory allegations that a guilty plea has an impact on a particular defendant's immigration status, made without support in fact and in immigration law, are insufficient to establish harm.” Record here shows that defendant was born in Panama, but doesn’t disclose his current citizenship. “Second, the defendant must show that he was not aware of the potential impact of the guilty plea on his immigration status from some source other than the trial court. Otherwise, the trial court's omission of the § 17-7- 93(c) and Rule 33.8(C)(2) advice will have made no difference to the decision to enter the plea.” Again, the record doesn’t disclose whether defendant knew about the immigration consequences of his plea from counsel or some other source. “Finally, the defendant will need to show that he would not have pled guilty even if he knew about the risks to his immigration status.” No such showing on this record. “The defendant may be able, initially, to make these showings through his own testimony by stating: (1) that he is not a citizen; (2) that the facts, viewed in conjunction with the immigration laws, show some real risk to his immigration status; (3) that no one ever advised him of those risks; and (4) that if he had known of the risks, he would have refused to plead guilty and taken his chances at trial. The State may then seek to rebut the claim of manifest injustice on any or all of these grounds or on other grounds. These issues will be the subject of factual determinations by the trial court, whose findings we will accept unless they are clearly erroneous, see Stinson, 286 Ga. at 501, and whose ultimate decision as to whether to allow the guilty plea to be withdrawn will be reviewed for abuse of discretion, see Norris v. State, 277 Ga.App. 289, 292 (626 S.E.2d 220) (2006).” “FN7: Although a defendant who hopes to appeal successfully from a guilty plea is not required to first file a motion to withdraw the plea, the possibility of expanding the record on which the appeal will be reviewed, and doing so with the assistance of appointed counsel if indigent, should create a strong incentive for defendants to do so. A motion to withdraw the plea also permits the trial court to consider and correct any defects in the guilty plea in the first instance.” “We close by emphasizing to the trial courts that the difficult issues and additional litigation which may arise if defendants are not advised on the record that a guilty plea may have an impact on their immigration status can be avoided simply by complying fully with the mandates of OCGA § 17-7-93(c) and Uniform Superior Court Rule 33.8(C)(2). Prosecutors may assist the trial courts by reminding them of those mandates if the advice is not provided at the guilty plea hearing. And defense lawyers should serve as an additional backstop, especially now that their failure independently to advise non- citizen clients about the potential for immigration consequences will be deemed constitutionally deficient professional performance.” Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (March 31, 2010). Reversing Kentucky Supreme Court, counsel’s representation was deficient where he incorrectly told defendant that his guilty plea to transporting a large amount of marijuana through Kentucky wouldn’t result in deportation. “Padilla's crime, like virtually every drug offense except for only the most insignificant marijuana offenses, is a deportable offense under 8 U.S.C. § 1227(a)(2)(B)(i).” “Padilla relied on his counsel's erroneous advice when he pleaded guilty to the drug charges that made his deportation virtually mandatory. He alleges that he would have insisted on going to trial if he had not received incorrect advice from his attorney.” Kentucky court erroneously “held that the Sixth Amendment's guarantee of effective assistance of counsel does not protect a criminal defendant from erroneous advice about deportation because it is merely a ‘collateral’ consequence of his conviction.” “We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. Whether he is entitled to relief depends on whether he has been prejudiced, a matter that we do not address.” 1. Supreme Court has never held that effective assistance does not extend to “collateral” matters. “We … have never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland, 466 U.S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation .” “Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim