In the Supreme Court of Georgia



                                                Decided: May 11, 2015


                    S14G1762. ALEXANDER v. THE STATE.

      THOMPSON, Chief Justice.

      Appellant Calvin Alexander pled guilty to three counts of aggravated child

molestation, two counts of statutory rape, three counts of child molestation and

two counts of enticing a child for indecent purposes pursuant to a non-

negotiated Alford plea.1        He was sentenced to 30 years on each count of

aggravated child molestation with 15 years to be served in prison and the

balance on probation; 15 years to serve on each of the statutory rape charges;

and 15 years on each of the child molestation charges. Thereafter, appellant

moved to withdraw his guilty plea on the ground of ineffective assistance of

counsel. In this regard, appellant asserted trial counsel failed to advise him he

would not be eligible for parole (because he was sentenced as a recidivist) and,

if he had been so advised, he would not have pled guilty. At the hearing upon

appellant’s motion, trial counsel testified he had no recollection of having

      1
          See North Carolina v. Alford, 400 U.S. 25 (91 SCt 160, 27 LE2d 162) (1970).
discussed parole eligibility with appellant.

      The trial court denied appellant’s motion to withdraw his guilty plea and

the Court of Appeals affirmed,2 holding it was constrained by this Court’s ruling

in Williams v. Duffy, 270 Ga. 580 (513 SE2d 212) (1999), that ineligibility for

parole has a collateral effect on a criminal sentence and that, therefore, a

lawyer’s failure to inform his client about parole eligibility cannot constitute

deficient performance as a matter of law. This Court granted appellant’s

petition for a writ of certiorari and posed this succinct question: Whether

Williams v. Duffy remains good law, see Padilla v. Kentucky, 559 U.S. 356

(130 SCt 1473, 176 LE2d 284) (2010), Smith v. State, 287 Ga. 391 (697 SE2d

177) (2010), and Taylor v. State, 304 Ga. App. 878 (698 SE2d 384) (2010)?

      In Williams v. Duffy, the defendant was charged with several offenses,

including armed robbery. Pursuant to a negotiated plea bargain, the defendant

pled guilty to armed robbery and received a 15-year sentence. Thereafter, the

defendant filed a petition for habeas corpus, alleging his attorney rendered

ineffective assistance. The habeas court set aside the defendant’s conviction,



      2
          Alexander v. State, 328 Ga. App. 300 (761 SE2d 844) (2014).

                                            2
finding the defendant’s attorney was ineffective because he failed to advise the

defendant that, pursuant to OCGA § 17-10-6.1, he would be ineligible for parole

and would be required to serve the entire 15-year sentence in jail. The warden

appealed and a majority of this Court reversed, reasoning that parole eligibility

or ineligibility only has a collateral effect on a defendant’s sentence and that an

attorney’s failure to advise a defendant of a collateral consequence cannot

constitute ineffective assistance.

      We hold today that Williams is no longer good law and that it, and its

progeny, must be overruled. We begin our analysis with the Supreme Court’s

decision in Hill v. Lockhart, 474 U.S. 52 (106 SCt 366, 88 LE2d 203) (1985).

In that case, petitioner pled guilty in state court to first degree murder and theft

of property. He subsequently sought federal habeas relief on the ground of

ineffective assistance of counsel, alleging his attorney misinformed him he

would become eligible for parole after serving one-third of his sentence when,

in fact, he was a “second offender” and was required to serve one-half of his

sentence before becoming eligible for parole. The district court denied habeas

relief, ruling that, even if petitioner’s attorney misled petitioner about parole

eligibility, petitioner’s plea was not rendered involuntary. The Court of Appeals

                                         3
for the Eighth Circuit affirmed, holding that parole eligibility is a collateral, not

direct, consequence of a guilty plea and, therefore, a defendant need not be

informed of it. On certiorari, the Supreme Court affirmed. However, unlike the

Court of Appeals, the Supreme Court did not examine counsel’s misadvice with

a “direct or collateral effects” lens. Instead, it used the two-part Strickland v.

Washington3 test, held that it “applies to challenges to guilty pleas based on

ineffective assistance of counsel,” and concluded that the petitioner was unable

to satisfy the second, “prejudice” prong of Strickland.           In reaching that

conclusion, the Court found it “unnecessary to determine whether there may be

circumstances under which erroneous advice by counsel as to parole eligibility

may be deemed constitutionally ineffective assistance of counsel.” Hill, supra

at 60.

         Williams cited Hill for the proposition that “[t]here is no constitutional

requirement that a defendant be advised of . . . collateral consequences in order

for his guilty plea to be valid.” Williams, supra at 581. However, although Hill

espoused that proposition, it is clear that it was made in the context of a federal

court’s obligation to insure that a defendant’s plea is voluntary and intelligent.

         3
             466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

                                              4
As noted above, Hill proposed an altogether different approach – the Strickland

v. Washington test – to evaluate the performance of counsel who incorrectly

advises a defendant about parole eligibility. In the words of the high Court:

“Where, as here, a defendant is represented by counsel during the plea process

and enters his plea upon the advice of counsel, the voluntariness of the plea

depends on whether counsel’s advice ‘was within the range of competence

demanded of attorneys in criminal cases.’ [Cit.]” Hill, supra at 56.

      In his dissenting opinion in Williams, Presiding Justice Fletcher, joined

by then Chief Justice Benham, recognized the majority’s error:

      The majority equates "constitutionally ineffective assistance" with
      the deficiency prong. However, deficient performance is only
      "constitutionally ineffective" when it causes prejudice. In looking
      at the deficiency prong separately, I would hold 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. While the
      two concepts are interrelated, I am persuaded that 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.


Id. at 583.

      This Court subsequently distinguished between cases in which, like

Williams, counsel failed to inform a criminal defendant of the collateral

                                        5
consequences of a plea, and those in which counsel affirmatively misinformed

a defendant of such consequences. In the latter situation, we analyzed counsel’s

performance with a Sixth Amendment, Strickland, approach. See, e.g., Smith

v. Williams, 277 Ga. 778 (596 SE2d 112) (2004) (ineffective assistance claim

arising from counsel’s incorrect advice concerning parole eligibility must be

determined by two-prong Strickland test); Rollins v. State, 277 Ga. 488 (591

SE2d 796) (2004) (habeas court erred by failing to differentiate between

counsel’s failure to advise client of collateral consequence and his affirmative

misrepresentation of such consequence). Nevertheless, we continued to apply

Williams when counsel completely failed to advise a client concerning the

collateral consequences of a plea agreement. See, e.g., Ellis v. State, 272 Ga.

763(534 SE2d 414) (2000).4

       More recently, Padilla required us to rethink our course. In that case,


       4
         We now question whether these different approaches were ever appropriate. As the
Supreme Court observed in Padilla, supra at 370, “there is no relevant difference ‘between
an act of commission and an act of omission’ in this context.” Moreover, to limit an
ineffective assistance claim to “affirmative misadvice” gives defense counsel “an incentive
to remain silent on matters of great importance, even when answers are readily available.
Silence under these circumstances would be fundamentally at odds with the critical
obligation of counsel to advise the client of ‘the advantages and disadvantages of a plea
agreement.’” Id. In view of our decision to overrule Williams, we need not dwell on this
point further.

                                            6
counsel erroneously assured his client that a guilty plea would not lead to his

deportation. Eschewing a direct versus collateral consequence analysis, the

Supreme Court held that the Sixth Amendment’s guarantee of effective

assistance of counsel protects a defendant from erroneous advice about

deportation, id. at 366, and that a defendant establishes deficient performance

under Strickland when he shows that counsel failed to accurately advise him

about the automatic deportation consequences of a guilty plea and those

consequences could have been determined easily from reading the removal

statute.5

       In Smith v. State, 287 Ga. 391 (697 SE2d 177) (2010), we shouldered the

Supreme Court’s decision in Padilla and took aim at the direct versus collateral

distinction set forth in Williams:

       Direct and collateral consequences relate to the trial court's duty to

       5
           The State posits that the holding in Padilla is a narrow one; that it pertains only to
deportation consequences; and that defense attorneys would be unduly burdened if the
holding in Padilla were to implicate a myriad of potential consequences stemming from
guilty pleas. We disagree. Although the majority in Padilla took pains to circumscribe its
ruling, it plainly stated that “[i]t is quintessentially the duty of counsel to provide her client
with available advice about an issue like deportation and the failure to do so ‘clearly satisfies
the first prong of the Strickland analysis.’” Id. at 371 (emphasis added). Thus, the Supreme
Court made it clear that misadvice about serious collateral consequences other than
deportation, such as parole ineligibility (see id. at 387, n. 4 (Alito, J. concurring in
judgment)), can constitute a constitutional violation.

                                                7
      ensure that guilty pleas are knowingly and voluntarily entered as a
      matter of Fifth Amendment due process, while ineffective
      assistance of counsel relates to the defense lawyer's duty pursuant
      to the Sixth Amendment. See Williams v. Duffy, 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 "[w]hile 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. at 397. See also Lafler v. Cooper, __ U.S. __ (132 SCt 1376, 182 LE2d 398)

(2012) (ineffective assistance of counsel claim stemming from rejection of plea

offer should be addressed by applying Strickland and not by inquiring whether

rejection of plea was knowing and voluntary).

      Our decision in Smith v. State made it clear that Williams stood on shaky

ground. However, we did not overrule Williams at that time; nor did we firmly

                                        8
decide whether a direct versus collateral consequence analysis remains viable

in the context of an ineffective assistance of counsel claim.

      Shortly after our decision in Smith v. State, the Court of Appeals held that

counsel’s failure to advise his client that a guilty plea will require registration

as a sex offender constitutes deficient performance. Taylor v. State, supra. In

Taylor, the defendant entered a guilty plea to two counts of child molestation

pursuant to a negotiated plea agreement. He was sentenced to ten years, one in

confinement and nine on probation. When the defendant met with his probation

officer, he was advised that, upon his release from confinement, he would be

required to register as a sex offender. Thereupon, the defendant moved to

withdraw his guilty plea. Following a hearing, the trial court denied the

defendant’s motion, reasoning that the sex offender registration requirement was

a collateral consequence and that counsel’s failure to inform his client of that

consequence could not constitute ineffective assistance of counsel. The Court

of Appeals reversed. Relying on Padilla, the appellate court determined that a

direct versus collateral consequence distinction does not control the scope of

reasonable professional assistance required under Strickland.           Thus, the

appellate court concluded, “even if registration as a sex offender is a collateral

                                        9
consequence of a guilty plea, the failure to advise a client that his guilty plea

will require registration is constitutionally deficient performance.” Id. at 882-

883.

       We agree with the Strickland analysis set forth in Taylor6 and hold that,

whether a guilty plea gives rise to a direct or collateral consequence, 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 forth in Strickland v. Washington. Accordingly, as noted

above, Williams must be overruled.

       We hasten to add that counsel’s failure to offer advice concerning a

collateral consequence will not rise to the level of constitutional deficiency in

every instance. Rather, our courts should weigh a deficient performance claim

“by looking to the practice and expectations of the legal community: ‘The

proper measure of attorney performance remains simply reasonableness under

prevailing professional norms.’ [Strickland.] We long have recognized that

‘[p]revailing norms of practice as reflected in American Bar Association

       6
          We do not, however, necessarily agree with Taylor that the failure to advise a
defendant about sex offender registration is a drastic measure or penalty intimately related
to the criminal process. A decision along those lines must await another day.

                                            10
standards and the like . . . are guides to determining what is reasonable . . .’

[Cits.] Although they are ‘only guides,’ [Cit.] and not ‘inexorable commands,’

[Cit.], these standards may be valuable measures of the prevailing professional

norms of effective representation . . .” Padilla, supra at 366-367. In addition to

professional guidelines, our courts can look to these factors when weighing

advice concerning a collateral consequence: (1) whether the collateral

consequence is intimately related to the criminal process and is “nearly an

automatic result” flowing from the conviction; (2) whether the consequence is

a “drastic measure” or a penalty with harsh ramifications for the client; and (3)

whether the law imposing the consequence is “succinct, clear and explicit.”

Padilla, supra at 365-369; Taylor v. State, supra at 882.

      When it comes to parole eligibility, we conclude that an attorney’s failure

to inform his or her client that he or she would be ineligible for parole as a

recidivist for the entirety of a lengthy prison sentence is constitutionally

deficient performance. We reach this conclusion for several reasons. First, we

note that the recidivist statute is, and has been, a prominent feature of our

criminal justice system – anyone who is subject to it should be informed

accurately about its consequences. See Commonwealth v. Pridham, 394 SW3d

                                       11
867, 878 (Ky. 2012). See also National Legal Aid and Defender Association

(NLADA) Performance Guideline for Criminal Defense Representation 6.4

(prior to entry of plea, counsel must ensure that the client “fully and completely

understands . . . the maximum punishment, sanctions and other consequences

the accused will be exposed to by entering the plea”); American Bar Association

(ABA) Standards for Criminal Justice, Pleas of Guilty 14-3.2 (f) (“To the extent

possible, defense counsel should determine and advise the defendant,

sufficiently in advance of the entry of any plea, as to the possible collateral

consequences that might ensue from entry of the contemplated plea.”); Uniform

Superior Court Rules 33.8 (C) (3) (4) (trial judge should not accept guilty plea

without first informing defendant of maximum possible sentence and any

mandatory minimum sentence). Moreover, the statute in question, OCGA § 17-

10-7 (c), is “succinct, clear and explicit” and it applies automatically upon an

offender’s conviction as a recidivist. Finally, parole ineligibility is a drastic

penalty enacted to insure that a criminal offender serves his or her entire

sentence behind bars. See Commonwealth v. Pridham, supra.

      When he entered his plea, appellant was faced with the possibility of

imprisonment for many years, and he was faced with the potential that he would

                                       12
be sentenced as a recidivist and made ineligible for parole for the entirety of his

long sentences. In these circumstances, we hold that appellant was entitled to

advice from his lawyer about parole ineligibility. However, although appellant

presented evidence showing counsel failed to advise him he would be ineligible

for parole, the trial court did not make a finding in that regard. Indeed, such a

finding would have been unnecessary as long as Williams v. Duffy, supra, was

good law. Because we now overrule Williams, it is incumbent upon the trial

court to again evaluate appellant’s motion to withdraw his guilty plea with the

two-prong Strickland test. Accordingly, we reverse and remand for the trial

court to determine whether defense counsel performed deficiently and, if so,

whether the deficient performance prejudiced appellant. See Encarnacion v.

State, 295 Ga. 660, 664 (763 SE2d 463) (2014). To meet the prejudice prong

in the guilty plea context, appellant must demonstrate there is a reasonable

probability that, assuming counsel failed to inform him he would be ineligible

for parole, he would not have entered a guilty plea and would have insisted on

going to trial. Id.

      Judgment reversed and case remanded with direction. All the Justices

concur.

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