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GA Supreme Court: Attorneys Must Advise Clients of Parole Ineligibility


May 14, 2015

In Alexander v. State, the Georgia Supreme Court overruled 15 years of appellate court decisions and held that an attorney's failure to inform the client at the time of a guilty plea that he or she will be ineligible for parole constitutes deficient performance.

The defendant pleaded guilty to the offenses of child molestation, aggravated child molestation, statutory rape and enticing a child for indecent purposes. He was sentenced to serve 15 years in prison with an additional 15 years of probation. He later filed a motion to withdraw his plea, asserting that his attorney failed to advise him that he would not be eligible for parole (due to being a recidivist).

The trial court denied his motion to withdraw the guilty plea, citing the numerous Georgia appellate decisions which have held that ineligibility for parole is a collateral consequence of a criminal sentence and, therefore, an attorney’s failure to advise the client about parole eligibility cannot constitute ineffective assistance of counsel.

The case law on this issue stems from the Georgia Supreme Court’s decision in Williams v. Duffy, 270 Ga. 580 (1999). The Court, however, held that Williams v. Duffy is no longer good law and that it should be overruled. The Court cautioned that parole ineligibility is “a drastic penalty” and a criminal defendant should always be advised when he is facing a lengthy sentence that must be served in its entirety.

It should be noted that Georgia law prohibits parole for any defendant convicted of the offenses of rape, aggravated child molestation or aggravated sexual battery. Therefore, this decision is an important one for any Georgia criminal defense attorney who represents clients accused of these sexual offenses.

The Court made it clear that the failure to advise the client of parole ineligibility will constitute deficient performance, but that in order to withdraw the plea, the defendant must also show that he was prejudiced by the attorney’s omission. It stated that in order to establish prejudice, the defendant must show that “there is a reasonable probability that…he would not have entered a guilty plea and would have insisted on going to trial” if he was properly informed about his parole ineligibility.

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