Gwinnett County DUI plea: LOPEZ v.THE STATE, A11A0676, Court of Appeals of Georgia (June 2, 2011).
Opinion by Justice BARNES, Presiding Judge.
Silverio Lopez appealed the GWinnett County trial court's denial of his motion to withdraw his guilty plea to a Gwinnett County DUI Arrest. Lopez contends his trial counsel was ineffective in his failure to explain that he would not be deported immediately but only after he served one year in prison on his felony DUI sentence. In August 2010, Lopez plead guilty to DUI, DUI Child Endangerment, Driving without a License, Giving a False Name, and Felony Cruelty to children. He was given a ten year sentence do one year in prison and nine on probation. The Gwinnett County DUI Police Officers saw Lopez run two stop signs, drive 60 mph in a 40-mph zone, make an erratic turn, and stop in a parking lot, his eight-month-old daughter was found face-down on the front passenger-side floorboard apparently in pain, Lopez's tag was registered to another vehicle, he had no drivers license, he told the officers his name was Juan Carlos Cruz, had a strong odor of alcohol on his breath and admitted he had drunk 12 beers. He blew .182 on the intoxilyzer 5000. At the plea hearing Lopez admitted that he was a citizen of Mexico, and that he knew that if he pled guilty he would likely be deported from this country.
The decision regarding whether a guilty plea may be withdrawn lies within the sound discretion of the trial court. Franklin v. State, 291 Ga. App. 267, 268 (661 SE2d 870) (2008). When the request to withdraw a plea is based on ineffective assistance of counsel, the defendant must show both that trial counsel's performance fell below an objective standard of reasonableness, and that a reasonable probability exists that, but for counsel's errors, he would not have pled guilty but insisted on going to trial. Tarwater v. State, 259 Ga. 516, 517-518 (383 SE2d 883) (1989). The trial court is authorized to determine the credibility of witnesses at the hearing on the motion to withdraw, and the court's factual findings will be upheld unless they are clearly erroneous. Johnson v. State, 260 Ga. App. 897, 900 (2) (581 SE2d 407) (2003).
As the U. S. Supreme Court noted in Padilla, "a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences."Id. at 1483.
The Court of Appeals found that this was not a case in which a defendant pled guilty without knowing he would be deported as a result. Lopez contended that his counsel was ineffective for telling him he would be deported before he served his sentence, but the trial court determined that Lopez's testimony in that regard was not credible. Further, the trial court noted during the motion hearing that the court had handled hundreds of similar cases and had "absolutely no idea when or if Immigration Customs will take custody of somebody."
Trial counsel's advice to Lopez did not constitute ineffective assistance of counsel, per se or otherwise. Judgment was affirmed. Adams and Blackwell, JJ., concur.
