Jose Soriano Diaz v. State

FIFTH DIVISION MCFADDEN, P. J., BRANCH and BETHEL, 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. September 27, 2017 In the Court of Appeals of Georgia A17A1333. DIAZ v. THE STATE. MCFADDEN, Presiding Judge. Jose Soriano Diaz appeals from the denial of his motion to withdraw his guilty plea, arguing that his attorney’s failure to properly advise him of the immigration consequences of the plea led him to plead guilty. Because Diaz has not demonstrated that any deficiency in counsel’s performance resulted in prejudice, we affirm. “When 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 out in Strickland v. Washington[, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984).]” Gomez v. State, 300 Ga. 571, 572 (797 SE2d 478) (2017) (citation and punctuation omitted). Even when the trial court fails to make specific findings on an ineffective assistance of counsel claim, “remand is not mandated if we can determine from the record that the defendant cannot establish ineffective assistance of counsel under the two-prong test set forth in Strickland.” Burrell v. State, 301 Ga. 21, 24 (2) (799 SE2d 181) (2017) (citation omitted). When reviewing a trial court’s ruling on a claim of ineffective assistance of counsel, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000). This court reviews a denial of a motion to withdraw a guilty plea for abuse of discretion. Franklin v. State, 291 Ga. App. 267 (1) (661 SE2d 870) (2008). Diaz is a citizen of the Dominican Republic. On June 24, 2015, Diaz was arrested and charged with possession of a controlled substance and driving under the influence of alcohol. The case proceeded to trial, and on June 7, 2016, after jury selection had begun, Diaz entered a guilty plea to both charges. Diaz’s guilty plea to possession of a controlled substance subjects him to mandatory removal from the United States. See 8 USC § 1227 (2) (B) (i). At the plea hearing, the prosecutor informed Diaz that “regardless of what anyone else has told you about whether or not you will be deported, including your attorney or an immigration attorney, you could and I believe the law requires us to tell 2 you that you will be deported from the United States.” His plea counsel then asked Diaz whether he was under an immigration hold. Diaz responded that he was, and plea counsel explained that, “One of two — one of two things is going to happen and I don’t know if anyone in this room knows which of the two will happen. . . . If the judge accepts the plea, you will ...

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