                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                            BRANCH and BETHEL, 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


                                                                  September 27, 2017




In the Court of Appeals of Georgia
 A17A1333. DIAZ v. THE STATE.

      MCFADDEN, Presiding Judge.

      Jose Soriano Diaz appeals from the denial of his motion to withdraw his guilty

plea, arguing that his attorney’s failure to properly advise him of the immigration

consequences of the plea led him to plead guilty. Because Diaz has not demonstrated

that any deficiency in counsel’s performance resulted in prejudice, we affirm.

      “When a criminal defendant seeks to withdraw a guilty plea on the ground of

ineffective assistance of counsel, the ineffective assistance claim must be evaluated

under the two-prong test set out in Strickland v. Washington[, 466 U. S. 668, 687 (III)

(104 SCt 2052, 80 LE2d 674) (1984).]” Gomez v. State, 300 Ga. 571, 572 (797 SE2d

478) (2017) (citation and punctuation omitted). Even when the trial court fails to

make specific findings on an ineffective assistance of counsel claim, “remand is not
mandated if we can determine from the record that the defendant cannot establish

ineffective assistance of counsel under the two-prong test set forth in Strickland.”

Burrell v. State, 301 Ga. 21, 24 (2) (799 SE2d 181) (2017) (citation omitted). When

reviewing a trial court’s ruling on a claim of ineffective assistance of counsel, “we

accept the trial court’s factual findings and credibility determinations unless clearly

erroneous, but we independently apply the legal principles to the facts.” Suggs v.

State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000). This court reviews a denial of a

motion to withdraw a guilty plea for abuse of discretion. Franklin v. State, 291 Ga.

App. 267 (1) (661 SE2d 870) (2008).

      Diaz is a citizen of the Dominican Republic. On June 24, 2015, Diaz was

arrested and charged with possession of a controlled substance and driving under the

influence of alcohol. The case proceeded to trial, and on June 7, 2016, after jury

selection had begun, Diaz entered a guilty plea to both charges. Diaz’s guilty plea to

possession of a controlled substance subjects him to mandatory removal from the

United States. See 8 USC § 1227 (2) (B) (i).

      At the plea hearing, the prosecutor informed Diaz that “regardless of what

anyone else has told you about whether or not you will be deported, including your

attorney or an immigration attorney, you could and I believe the law requires us to tell

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you that you will be deported from the United States.” His plea counsel then asked

Diaz whether he was under an immigration hold. Diaz responded that he was, and

plea counsel explained that, “One of two — one of two things is going to happen and

I don’t know if anyone in this room knows which of the two will happen. . . . If the

judge accepts the plea, you will either in 72 hours be released to the street, because

immigration hasn’t come to get you, or immigration will come and get you for

purposes of deportation.” Diaz indicated that he understood.

      On appeal, Diaz argues that although the prosecutor correctly explained the

immigration consequences of his plea, plea counsel’s advice about the immigration

consequences amounted to deficient performance. Pretermitting whether counsel

performed deficiently by failing himself to inform Diaz of the immigration

consequences of the plea, Diaz has not shown prejudice. Whether a defendant can

“show prejudice from the denial of his right to trial . . . [is] an inquiry that . . .

demands a case-by-case examination of the totality of the evidence.” Lee v. United

States, __ U. S. __, __ (B) (137 SCt 1958, 198 LE2d 476) (2017). In the context of

immigration consequences,

      a defendant who is not a United States citizen and can show that his
      lawyer did not adequately advise him of the risks of deportation


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      resulting from his guilty plea will satisfy the first prong of the Strickland
      ineffectiveness test — deficient performance. To obtain relief, however,
      the defendant still must establish the second Strickland prong —
      prejudice, which in the guilty plea context requires the defendant to
      show that there is a reasonable probability that, but for counsel’s errors,
      he would not have pleaded guilty and would have insisted on going to
      trial.


Smith v. State, 287 Ga. 391, 396 (2) (b) (697 SE2d 177) (2010) (citation omitted).

Further, the defendant must “show that he was unaware of the immigration risks of

the plea from any other source (like an immigration attorney or an ongoing

immigration proceeding) in order to show that . . . trial counsel’s error resulted in

prejudice.” Id. at 402 (3) (emphasis supplied). Diaz has not shown that he was

unaware of the immigration risks from any other source. Therefore, Diaz has not

shown that he was prejudiced by any plea counsel error.

      Diaz relies heavily on Encarnacion v. State, 295 Ga. 660, 661 (763 SE2d 463)

(2014), but Encarnacion was limited to the deficient-performance prong of

Strickland. Our Supreme Court in Encarnacion concluded that plea counsel was

deficient because he advised Encarnacion that his conviction “could” result in

deportation, even though it was almost certain that the defendant would be deported.

Id. at 660 (1). The court remanded the case for the habeas court to determine whether

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this advice prejudiced Encarnacion. Here, we decide the case on the prejudice prong.

Because the record shows that Diaz was not prejudiced by any deficiencies in

counsel’s performance, the trial court properly denied his motion to withdraw his

guilty plea. See State v. Martinez, 291 Ga. 455, 457 (729 SE2d 390) (2012)

(“Regardless of the prior erroneous advice from plea counsel, the trial court correctly

informed [appellant] of the immigration consequences of his guilty plea, and he has

therefore failed to prove that he was prejudiced by counsel’s deficient performance.”).

      Judgment affirmed. Branch and Bethel, JJ., concur.




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