Alexander v. the State

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