One of the most frequent post-conviction questions that I am asked is: Can I withdraw my guilty plea entered in a Georgia criminal case? The answer is: maybe. In this post, I am going to include portions of favorable cases in which criminal defendants were permitted to withdraw their previously entered guilty plea.
“[T]he right to effective assistance of counsel … may in a particular case be violated by even an isolated error of counsel if that error is sufficiently egregious and prejudicial. [Cits.]” Murray v. Carrier, 477 U.S. 478, 496(III), 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (citing United States v. Cronic, 466 U.S. 648, 657, fn. 20, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)). See also Kimmelman v. Morrison, 477 U.S. 365, 383(III)(A), 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Shorter v. Waters, 275 Ga. 581, 584, 571 S.E.2d 373 (2002) (ineffective assistance of appellate counsel). Thus, an attorney's misunderstanding of the law can result in ineffective assistance when it leads to advice on a plea bargain which incorrectly assesses the legal consequences of the plea. *183 3 LaFave, Israel & King, Criminal Procedure, § 11.10(c), p. 721 (2nd ed. 1999). Although there is no constitutional requirement that a defendant be informed of collateral consequences of a plea, a lawyer's affirmative misrepresentations about those consequences in response to his client's specific inquiries may constitute ineffective representation. Smith v. Williams, supra at 778-779(1), 596 S.E.2d 112; Rollins v. State, supra at 489-490(1), 591 S.E.2d 796. See also Crabbe v. State, 248 Ga.App. 314, 315, 546 S.E.2d 65 (2001).4
The affidavits of Dr. Patel and his healthcare attorney and the testimony of lead counsel furnished the habeas court with ample evidence that Dr. Patel made specific inquiry regarding the effect of the nolo plea on his future participation in federal health care programs, and that his trial counsel responded with affirmative misrepresentations, which were caused by the failure to perform basic research with regard to Dr. Patel's question. Such acts of defense counsel fall well below the objective standard of competence required for attorneys in criminal cases. Rollins v. State, supra at 491(2), 591 S.E.2d 796. Furthermore, the evidence at the habeas hearing specifically established that Dr. Patel, having previously rejected a proposed plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) because of its potential long-term impact on his medical practice, would have insisted on going to trial had he known that the plea of nolo contendere would result in mandatory exclusion from federal programs such as Medicare and Medicaid. Rollins v. State, supra at 492(2), 591 S.E.2d 796. Compare State v. Sabillon, 280 Ga. 1, 622 S.E.2d 846 (2005).
State v. Patel, 280 Ga. 181, 182-83, 626 S.E.2d 121, 123 (2006)
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