                               SECOND DIVISION
                                BARNES, P. J.,
                            BOGGS and RICKMAN, 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


                                                                      August 23, 2016




In the Court of Appeals of Georgia
 A16A1221. INGRAM v. THE STATE.

      RICKMAN, Judge.

      Andreco Rodreiques Ingram appeals the trial court’s denial of his motion to

withdraw his guilty plea. He contends that his plea counsel was ineffective for

erroneously informing him that he was subject to treatment as a recidivist. For reasons

that follow, we reverse.

      Ingram was indicted for three counts of violating the Georgia Street Gang

Terrorism and Prevention Act, trafficking in cocaine, and possession of a firearm by

a convicted felon. The State filed a notice of intent to offer evidence in aggravation of

punishment and a recidivist notice, which provided that Ingram faced “a sentence of

75 years to serve with no parole.” In exchange for Ingram agreeing to enter a non-
negotiated plea to three counts of the indictment,1 Ingram’s counsel got the State to

agree to remove the recidivism component and to cap its recommended sentence at 40

years, to serve 20. Ingram’s counsel asked for a sentence of 20 years, to serve 10. The

trial court sentenced Ingram to 35 years, 20 in confinement and the remainder on

probation.

      Ingram filed a motion to withdraw his guilty plea, contending that the plea was

not knowingly and voluntarily made, the plea was not supported by a factual basis, and

his plea counsel rendered ineffective assistance. At the hearing on his motion to

withdraw, Ingram’s new counsel pointed out that one of the convictions the State had

used in its recidivist notice was not actually a conviction because Ingram was given

first offender treatment. Counsel argued that Ingram’s decision to enter the plea was

based primarily on his desire to avoid recidivist punishment and that Ingram relied

heavily on his counsel’s inaccurate advice that he would be subject to recidivist

treatment when deciding whether to enter the plea. In addition, Ingram testified that

the most important factor for him in deciding to enter the plea was avoiding the

possibility of a 75-year recidivist sentence. The trial court denied Ingram’s motion,

concluding that the plea was entered “intelligently and voluntarily,” and that Ingram


      1
          Two of the gang-related charges were nol prossed.

                                          2
had failed to show that his “counsel’s representation fell below an objective standard

of reasonableness” or that absent “any alleged errors by counsel, [Ingram] would not

have pleaded guilty and would have insisted on going to trial.”

      On appeal, Ingram contends that his plea counsel performed deficiently when

counsel erroneously informed him that he was subject to treatment as a recidivist and

that this deficient performance prejudiced him by inducing him to waive his right to

trial and enter a guilty plea. The State concedes that Ingram’s counsel was ineffective

and likely prejudiced him and does not contest Ingram’s appeal.2

      “[W]hen 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,” 466 U. S. 668, 687

(III) (104 SCt 2052, 80 LEd2d 674) (1984). Alexander v. State, 297 Ga. 59, 64 (772

SE2d 655) (2015). To prevail on a claim of ineffective assistance of counsel, a criminal


      2
         In Georgia, “the district attorney represents the people of the state in
prosecuting individuals who have been charged with violating our state’s criminal
laws.” (Citation and punctuation omitted.) Mowoe v. State, 328 Ga. App. 536, 540 (2)
(a) (759 SE2d 663) (2014). A public prosecutor’s responsibility “differs from that of
the usual advocate; his duty is to seek justice, not merely to convict.” (Citations and
punctuation omitted.) Carr v. State, 267 Ga. 701, 712 (10) (482 SE2d 314) (1997).
Moreover, “it is the duty of a prosecuting attorney to see that justice is done and
nothing more.” (Citations and punctuation omitted.) Id. Accordingly, we commend the
State for forthrightly conceding error in this case.

                                           3
defendant must show that counsel’s performance “fell below an objective standard of

reasonableness and that there is a reasonable probability that, in the absence of his

attorney’s errors, he would not have pled guilty and would have insisted on going to

trial.” (Footnote omitted.) Crabbe v. State, 248 Ga. App. 314, 315 (546 SE2d 65)

(2001).

      Ingram’s plea counsel advised Ingram of the potential range of punishment he

might face and the worst case scenario, including the fact that he was facing a sentence

of up to 75 years without parole. While attempting to negotiate a plea for Ingram,

“[t]he most important factor for [plea counsel] in the equation was to get rid of

recidivism for good, to make sure it didn’t come into play.” After obtaining some

concessions from the State, plea counsel advised Ingram that it was in his best interest

to take the plea because he would be subject to a higher potential punishment without

the sentence cap and “was most likely going to get recidivism.” Ingram testified that

avoiding the possibility of a 75-year recidivist sentence was the most important factor

in his decision-making process. Plea counsel testified that he would not have

recommended that Ingram agree to a non-negotiated plea if the State had not taken

recidivist punishment off the table.

      Pursuant to OCGA § 17-10-7 (c),


                                           4
       any person who, after having been convicted under the laws of this state
       for three felonies . . . , commits a felony within this state shall, upon
       conviction for such fourth offense or for subsequent offenses, serve the
       maximum time provided in the sentence of the judge based upon such
       conviction and shall not be eligible for parole until the maximum
       sentence has been served.


The State listed three prior felony “convictions” in its recidivist notice, but Ingram pled

guilty and obtained first offender treatment for one of the listed offenses.3 And “[a]

first offender’s guilty plea does not constitute a ‘conviction’ as that term is defined in

the Criminal Code of Georgia.” (Citations and punctuation omitted.) Davis v. State,

273 Ga. 14, 15 (537 SE2d 663) (2000). Thus, Ingram would not have been subject to

recidivist treatment and his plea counsel’s advice in this regard was erroneous.

       “Affirmatively misinforming a client about parole eligibility falls outside the

permitted range of professional competence.” (Citations omitted.) Tillman v. Gee, 284

Ga. 416, 418 (667 SE2d 600) (2008); see also Alexander, 297 Ga. at 65 (“When it comes

to parole eligibility, . . . 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



       3
        Ingram testified that he completed his first offender sentence, and nothing in
the record indicates that the trial court ever entered an adjudication of guilt as to this
offense.

                                             5
sentence is constitutionally deficient performance.”); Crabbe, 248 Ga. App. at 315-316

(misinforming defendant that he would be eligible for parole when defense strategy

in negotiating plea was to ensure such eligibility satisfies first prong of Strickland v.

Washington test). Thus, plea counsel’s affirmative misinformation about parole

eligibility satisfied the first prong of the Strickland v. Washington test.

      Under the prejudice prong, Ingram must demonstrate that there is a reasonable

probability that, absent his counsel’s erroneous advice, he would not have entered a

guilty plea and would have insisted on going to trial. See Alexander, 297 Ga. at 66. The

undisputed evidence shows that the defense strategy was based on the removal of the

recidivist component – it was the goal of Ingram’s counsel’s discussions with the State

and the basis for Ingram’s willingness to enter a non-negotiated plea. Under these

circumstances, as the State concedes, there is a reasonable probability that, absent

counsel’s erroneous advice that the plea would be in Ingram’s best interest because he

would otherwise be subject to recidivist treatment, Ingram would not have entered the

guilty plea. See Tillman, 284 Ga. at 419-420 (evidence showed that defendant would

not have pled guilty had he known that his attorney’s representations regarding parole

were wholly inaccurate); Clue v. State, 273 Ga. App. 672, 674 (615 SE2d 800) (2005)

(where State conceded that, but for trial counsel’s error, defendant would not have


                                            6
pled guilty, second prong of the ineffective assistance test was met). Thus, we

conclude that Ingram received ineffective assistance of counsel and that the trial court

therefore erred in denying his motion to withdraw his guilty plea.

      Judgment reversed. Barnes, P. J., and Boggs, J., concur.




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