Alexander v. the State , 328 Ga. App. 300 ( 2014 )

THIRD DIVISION
BARNES, P. J.,
BOGGS and BRANCH, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
July 15, 2014
In the Court of Appeals of Georgia
A14A0190. ALEXANDER v. THE STATE.
B RANCH, Judge.
Calvin Alexander brings this appeal from the denial of his timely-filed motion
to withdraw his guilty plea. In his sole enumeration of error, Alexander argues that his
lawyer’s failure to advise him, prior to the entry of his guilty plea, that he would be
ineligible for parole constituted ineffective assistance and entitles him to withdraw
that plea. Pursuant to the Georgia Supreme Court’s decision in Williams v. Duffy, 270
Ga. 580, 581 (1) (513 SE2d 212) (1999), we find that Alexander’s counsel was
effective, as a matter of law. Accordingly, for reasons explained more fully below, we
affirm the order of the trial court.
The record shows that on March 14, 2011, Alexander entered a non-negotiated
Alford plea1 in Fulton County Superior Court under which he pled guilty to three
counts of aggravated child molestation,2 two counts of statutory rape,3 three counts of
child molestation,4 and two counts of enticing a child for indecent purposes.5 At the
plea hearing, Alexander stated that he was entering the plea because he believed doing
so was in his best interest; that he understood he was entering a non-negotiated guilty
plea with the sentence to be decided by the judge; that he had been advised of the
maximum and minimum sentence he could receive for each charge; and that he
understood that the State was asking for a sentence of 30 years, but that the judge did
not have to honor that request.
1
Alexander pled guilty pursuant to North Carolina v. Alford, 400 U. S. 25 (91
SCt 160, 27 LEd2d 162) (1970), and thereby pled guilty without admitting his guilt.
See Wyman v. State, 267 Ga. App. 118 (598 SE2d 855) (2004) (Alford “allows a
guilty plea despite a claim of innocence where there is strong evidence of guilt that
negates the claim of innocence and provides a factual basis for the guilty plea”).
2
OCGA § 16-6-4 (c).
3
OCGA § 16-6-3 (a).
4
OCGA § 16-6-4 (a) (1).
5
OCGA § 16-6-5 (a). The State elected to nolle prosse one count of aggravated
child molestation and one count of enticing a child for indecent purposes.
2
The State had previously filed notice that it was seeking to have Alexander
sentenced as a recidivist pursuant to OCGA § 17-10-7 (a), and at the plea hearing the
State introduced evidence of Alexander’s two prior felony convictions. 6 Following the
introduction of this evidence, Alexander’s attorney acknowledged that under OCGA
§ 17-10-7 the trial court had no option but to sentence Alexander to the statutory
maximum of thirty years on each count of aggravated child molestation, but asked that
the court require only ten years of the sentence be served in incarceration7 and that
sentences on all counts be imposed to run concurrently. The trial court then sentenced
Alexander to 30 years on each of the aggravated child molestation charges with 15
years to be served in incarceration and the balance on probation; 15 years to serve on
6
These included a 1991 conviction for theft of U. S. mail, and a 1998
conviction on four counts of possession of a firearm by a convicted felon. There was
also some discussion about the fact that Alexander had been convicted in 2007 for
possession of cocaine, but the State apparently did not introduce a certified copy of
that conviction, as none appears in the record.
7
OCGA § 17-10-7 (a) provides that where a defendant who has been previously
convicted of a felony is convicted of a subsequent felony, that defendant “shall be
sentenced to undergo the longest period of time prescribed for the punishment of the
subsequent offense of which he or she stands convicted, provided that, unless
otherwise provided by law, the trial judge may, in his or her discretion, probate or
suspend the maximum sentence prescribed for the offense.” The crimes at issue
occurred between January 2005 and June of 2006, and at that time the statutory
maximum sentence for aggravated child molestation was 30 years. See OCGA § 16-6-
4 (d) (1) (2005).
3
each of the statutory rape charges; and 15 years to serve on each of the child
molestation charges, with all sentences to run concurrently.8
After being sentenced, Alexander filed a motion to withdraw his guilty plea on
the grounds that it had resulted from ineffective assistance of counsel, due to trial
counsel’s failure to advise him that such a plea would render him ineligible for
parole.9 The motion was heard by the same judge who presided at Alexander’s plea
hearing and imposed his sentence. As Alexander’s lawyer’s statements at the plea
hearing made clear, he was aware that Alexander was being sentenced under the
recidivist statute and that Alexander would therefore be required to serve in
incarceration whatever portion of the sentence the trial judge did not suspend or
probate. At the motion hearing, however, the lawyer testified he did not have any
recollection of having discussed with his client the fact that his client would not be
8
The court merged the charges of enticing a child for indecent purposes with
the charges of aggravated child molestation.
9
Alexander also argued below that because he was not made aware of his
ineligibility for parole, his plea was not entered knowingly and voluntarily. Alexander
has not pursued this argument on appeal.
4
eligible for parole if he pled guilty.10 Trial counsel also testified that Alexander had
rejected an initial plea offer by the State and had elected to proceed to trial. After
witnessing general voir dire of the jury panel, however, Alexander told his attorney
that he wanted to enter a guilty plea. Trial counsel then discussed with Alexander the
fact that they did not know what sentence the judge would impose, but that he
suspected it would be a longer sentence than that proposed by the State in its initial
plea offer.11
10
Trial counsel further testified at the new trial hearing that at the time he
represented Alexander, he understood that persons convicted of aggravated child
molestation are ineligible for parole and must instead serve the entire sentence
imposed by the trial court. At the time of Alexander’s crimes, however, the law
required only that a person convicted of aggravated child molestation serve a
minimum of ten years in prison. See OCGA § 17-10-6.1 (2005) (defining aggravated
child molestation as a serious violent felony and providing that any person convicted
of that crime “shall be sentenced to a mandatory minimum term of imprisonment of
ten years and no portion of the mandatory minimum sentence imposed shall be
suspended, stayed, probated, deferred, or withheld by the sentencing court and shall
not be reduced by any form of pardon, parole, or commutation of sentence by the State
Board of Pardons and Paroles”) (emphasis supplied). Given that the trial court
sentenced Alexander to the statutory maximum of 30 years on each of the aggravated
child molestation charges and required him to serve 15 years in incarceration with the
remainder on probation, it appears that his ineligibility for parole results from the fact
that he was sentenced as a recidivist, and not from the fact that he was convicted of
aggravated child molestation. See OCGA § 17-10-7 (a). The trial judge’s statements
at the hearing on Alexander’s motion support this conclusion.
11
It appears from the record that the State’s plea offer would have required a
ten year period of incarceration.
5
Alexander also testified at the motion hearing and stated that he would not have
entered a guilty plea had he known that he would be ineligible for parole. Alexander
further testified, however, that he decided to plead guilty because he had doubts about
whether his lawyer was prepared for trial and because the trial judge told him that if
a jury found him guilty, she would sentence him to 60 years.
At the close of the hearing, the trial court denied Alexander’s motion to
withdraw his guilty plea, and it subsequently entered a written order to that effect,
finding that Alexander’s plea “was knowingly, voluntarily, and intelligently entered
with the competent advice of counsel.” Alexander then filed this appeal.
Once a defendant has been sentenced he will be allowed to withdraw a guilty
plea only where he “establishes that such withdrawal is necessary to correct a manifest
injustice” e.g., that the plea resulted from ineffective assistance of counsel or that it
was not entered voluntarily and knowingly. Green v. State, 324 Ga. App. 133 (749
SE2d 419) (2013) (citations and punctuation omitted). In determining whether such
a manifest injustice occurred “the trial court is the final arbiter of all factual issues
raised by the evidence” and its decision on whether to allow the withdrawal of a guilty
plea will not be disturbed absent a manifest abuse of discretion. Bailey v. State, 313
Ga. App. 824, 825 (723 SE2d 55) (2012) (citation and punctuation omitted). Where,
6
as here, a defendant asserts that his guilty plea is invalid because it resulted from
ineffective assistance of counsel, the trial court was required to apply the two-prong
test set forth in Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80
LEd2d 674) (1984), under which a defendant must prove both that his trial counsel
performed deficiently and that he suffered prejudice as a result of that performance.
Id. A defendant’s ineffective assistance claim will fail where he cannot meet his
burden of proof as to either prong of the Strickland test and under such circumstances
we need not examine the other prong.12 Hargrove v. State, 291 Ga. 879, 881 (2) (734
SE2d 34) (2012).
We begin with the issue of whether Alexander’s trial counsel performed
deficiently in advising Alexander with respect to his guilty plea. “To prove that the
performance of his lawyer was deficient, [Alexander] must show that the lawyer
performed his duties . . . in an objectively unreasonable way, considering all the
circumstances, and in the light of prevailing professional norms.” Washington v. State,
294 Ga. 560, 564-565 (3) (755 SE2d 160) (2014), citing Strickland, 466 U. S. at 687-
688 (III) (A). The State argues that we must affirm the trial court’s order because, as
12
In this case, the trial court’s order found that counsel had provided competent
advice to Alexander and did not address the prejudice prong of Strickland.
7
a matter of law, the collateral consequences doctrine prevents Alexander from proving
the deficient performance prong of Strickland. Alexander, however, argues that the
collateral consequences doctrine applies only where a defendant’s motion to withdraw
his guilty plea is based on a claim that the plea was neither knowing nor voluntary,
and that it cannot apply where such a motion is based on a claim of ineffective
assistance of counsel.
The collateral consequences doctrine stems from the rule that “[a]s 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.” Smith v. State, 287 Ga. 391, 394 (2) (a) (697 SE2d 177) (2010), citing
Brady v. United States, 397 U. S. 742, 755 (90 SCt 1463, 25 LEd2d 747) (1970).
“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.” Smith, 287 Ga. at 394 (2) (a) (citations omitted).
Consequences over which the trial court has no control are considered collateral
consequences. Id. The Georgia Supreme Court has previously held that ineligibility
for parole represents a collateral consequence of a guilty plea as “eligibility or
8
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” and
therefore has “only a collateral effect” on a defendant’s sentence. Williams, 270 Ga.
at 581 (1) (noting that parole ineligibility “in no way lengthen[s] the sentence itself,
but condition[s] satisfaction of that sentence upon [a defendant’s] incarceration for the
designated . . . period” specified in the sentence of the court) (citations omitted).
As the foregoing demonstrates, the collateral consequences doctrine was
originally formulated for application in those cases where a defendant seeks to
withdraw his guilty plea based on an alleged violation of his Fifth Amendment right
to due process, i.e., where the defendant’s motion to withdraw his guilty plea is based
on a claim that the plea was neither knowing nor voluntary. See Smith, 287 Ga. at 394
(2) (a). Despite its origins, however, both the Georgia Supreme Court and this Court
have applied the doctrine in cases where a defendant was seeking to withdraw his
guilty plea based on an alleged violation of his Sixth Amendment right to effective
assistance of counsel. See Williams, 270 Ga. at 582 (1) (holding that trial counsel’s
failure to inform a defendant entering a negotiated guilty plea that he would be
ineligible for parole “does not constitute ineffective assistance of counsel,” because
parole ineligibility was “a collateral consequence of the negotiated sentence”); Toro
9
v. State, 319 Ga. App. 39, 46 (3) (c) (735 SE2d 80) (2012) (same); Hall v. State, 313
Ga. App. 670, 673 (2) (722 SE2d 392) (2012) (same). It is these cases on which the
State relies to support its argument that Alexander cannot prove the deficient
performance prong of his ineffective assistance claim.
Alexander, however, argues that the United States Supreme Court decision in
Padilla v. Kentucky, 559 U. S. 356 (130 SCt 1473, 176 LE2d 284) (2010), requires us
to hold that trial counsel’s failure to inform a client of the collateral consequences of
a guilty plea constitutes deficient performance. Specifically, Alexander argues that
Padilla held that the collateral consequences doctrine could not apply to cases where
a defendant’s motion to withdraw his guilty plea is premised on a claim of ineffective
assistance of counsel, rather than on a claim that the plea was not entered knowingly
and voluntarily. And because Alexander’s trial counsel admitted that he could not
remember discussing with Alexander the impact a guilty plea would have had on his
parole eligibility, Alexander reasons that the trial court erred when it denied his
motion to withdraw that plea. We find that Alexander’s argument as to the
inapplicability of the collateral consequences doctrine to an ineffective assistance of
counsel claim has significant support in the law.
10
In Padilla, the Supreme Court noted that it had “never applied a distinction
between direct and collateral consequences to define the scope of constitutionally
‘reasonable professional assistance’ required under Strickland.” 559 U. S. at 365 (II).
Rather, the Court made clear that the test for whether counsel is constitutionally
effective is whether counsel’s performance was “‘reasonableness under prevailing
professional norms.’” Id. at 366 (III) (quoting Strickland, 466 U. S. at 688 (III) (A)).
After analyzing the impact of deportation on criminal defendants who were otherwise
legal residents of this country, the Padilla court concluded that “[t]he weight of
prevailing professional norms supports the view that counsel must advise her client
regarding the risk of deportation” associated with a guilty plea and that a failure to do
so constitutes deficient performance. Id. at 367 (III) (citations omitted). In reaching
this conclusion, however, the Padilla court expressly declined to decide whether the
collateral consequences doctrine is inapplicable in all cases where a defendant is
seeking to withdraw his guilty plea based on alleged violation of his Sixth
Amendment right to effective counsel. 559 U. S. at 365 (II) (whether a court should
never distinguish between direct and collateral consequences when analyzing a Sixth
Amendment claim “is a question we need not consider in this case because of the
unique nature of deportation.”)
11
Shortly after Padilla was decided, the Georgia Supreme Court considered
whether a trial court’s failure to inform a criminal defendant of the risk of deportation
resulting from his guilty plea violated the defendant’s Fifth Amendment rights,
thereby invalidating the plea. Smith, 287 Ga. 391-392. The Smith court applied the
collateral consequences doctrine and concluded that the trial court’s failure to inform
the defendant of the deportation risk did not render his guilty plea unknowing or
involuntary. The court reasoned:
despite its discussion of the importance of deportation risks to some
defendants, in the end the [United States] Supreme Court [in Padilla] did
not extend the direct consequences doctrine to that issue, or reject the
basic distinction between direct and collateral consequences in
determining whether a defendant’s guilty plea was knowingly and
voluntarily entered. In the absence of such a binding directive to do so,
we decline to do so either.
287 Ga. at 397 (2) (c) (emphasis in original). In reaching this conclusion, however, the
Georgia Supreme Court appeared to disapprove the application of the collateral
consequences doctrine to a defendant’s claim that he received ineffective assistance
of counsel with respect to his guilty plea. In discussing Padilla, the court explained:
Direct and collateral consequences relate to the trial court’s duty to
ensure that guilty pleas are knowingly and voluntarily entered as a matter
12
of Fifth Amendment due process, while ineffective assistance of counsel
relates to the defense lawyer’s duty pursuant to the Sixth Amendment.
See Williams[ ], 270 Ga. at 583 . . . (Fletcher, P. J., dissenting) (noting
that “defense counsel’s obligation to his client in entering a guilty plea
is not defined by a trial court’s duties in accepting a guilty plea,” and
“while the two concepts are interrelated, the more logical approach is to
recognize that a defendant’s sixth amendment claim of ineffective
assistance of counsel is separate from a due process claim that a plea was
not knowingly and voluntarily made”).
Padilla confirms this analytical distinction. The U. S. Supreme Court
specifically declined to rely on the direct versus collateral consequences
doctrine in determining the ineffective assistance claim presented,
instead applying Strickland’s familiar evaluation of whether counsel
acted reasonably in light of the prevailing professional norms for
criminal defense lawyers. This approach clarifies that defense counsel
may be ineffective in relation to a guilty plea due to professional duties
for the representation of their individual clients that set a standard
different – and higher – than those traditionally imposed on trial courts
conducting plea hearings for defendants about whom the judges often
know very little. This makes both analytical and practical sense.
Id. See also Taylor v. State, 304 Ga. App. 878, 883 (1) (698 SE2d 384) (2010)
(applying Padilla “to conclude that even if registration as a sex offender is a collateral
consequence of a guilty plea, the failure to advise a client that his guilty plea will
require registration is constitutionally deficient performance”).
13
Despite the language in Smith that appeared to disapprove the application of the
collateral consequences doctrine to an ineffective assistance claim, however, that
decision did not expressly overrule Williams v. Duffy, 270 Ga. 580. And given that
Smith’s discussion of the applicability (or inapplicability) of the collateral
consequences doctrine to a claimed Sixth Amendment violation was not central to the
holding of that case,13 we are not at liberty to construe Smith as invalidating Williams.
See Zepp v. Brannen, 283 Ga. 395, 397 (658 SE2d 567) (2008) (statements in an
opinion “concerning some rule of law or legal proposition not necessarily involved
nor essential to determination of the case in hand” are nonbinding dicta) (citation and
punctuation omitted). Moreover, in the absence of a decision from our Supreme Court
overruling Williams, we remain bound by its holding that trial counsel’s failure to
inform a defendant that his guilty plea would render him ineligible for parole cannot
13
To be clear, we view Smith as holding that the distinction between direct and
collateral consequences remains relevant to the determination of whether a
defendant’s guilty plea was entered knowingly and voluntarily and that the impact
such a plea would have on a non-citizen defendant’s resident status constitutes a
collateral consequence.
14
constitute constitutionally deficient performance, as a matter of law.14 See Chin Pak
v. Ga. Dept. of Behavioral Health & Dev. Disabilities, 317 Ga. App. 486, 488-489
(731 SE2d 384) (2012) (“this Court has no authority to overrule or modify a decision
made by the Georgia Supreme Court, as ‘the decisions of the Supreme Court shall
bind all other courts as precedents’”), quoting Ga. Const. of 1983, Art. VI, Sec. VI,
Par. VI. See also Cargile v. State, 194 Ga. 20, 22 (1) (20 SE2d 416) (1942) (the
constitutional provision that decisions of the Supreme Court shall bind the Court of
Appeals as precedents is applicable in all cases). Accordingly, we are constrained to
apply Williams and find that because parole ineligibility is a collateral consequence
of a guilty plea, Alexander cannot prove that his trial counsel performed deficiently
by failing to discuss that consequence with him. We therefore affirm the trial court’s
order denying Alexander’s motion to withdraw his guilty plea.
Judgment affirmed. Barnes, P. J. and Boggs, J., concur.
14
Notably, in Williams the Supreme Court expressly overruled Hutchison v.
State, 230 Ga. App. 143 (495 SE2d 618) (1998), in which a panel of this Court held
“that [trial] counsel’s failure to advise [the defendant] of parole ineligibility under
OCGA § 17-10-6.1” constituted deficient performance under Strickland and that this
Sixth Amendment violation authorized the withdrawal of the defendant’s guilty plea.
270 Ga. at 582 (1).
15