Phol Sa Lam v. State

THIRD DIVISION ELLINGTON, P. J., ANDREWS and RICKMAN, 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. June 18, 2018 In the Court of Appeals of Georgia A17A1546. PHOL SA LAM v. THE STATE. RICKMAN, Judge. Phol Sa Lam, a Vietnamese citizen and lawful permanent resident of the United States, appeals from the trial court’s denial of his motion seeking to vacate and declare void a negotiated guilty plea agreement. Although Lam was sentenced under the provisions of Georgia’s First Offender Act1 and was discharged without an adjudication of guilt after successfully fulfilling the terms of his sentence, the Immigration and Naturalization Service of the United States Department of Justice2 1 See OCGA § 42-8-60 (e) (1) (“A defendant sentenced pursuant to this article shall be exonerated of guilt and shall stand discharged as a matter of law as soon as the defendant . . . [c]ompletes the terms of his or her probation . . .”). 2 Although the Notice, issued in 2007, indicated it was sent from INS, INS was merged into the U. S. Immigration and Customs Enforcement agency (“ICE”) in conjunction with the Homeland Security Act of 2002. See 6 U. S. C. § 542. nevertheless issued a notice informing Lam that he was subject to removal from the United States (the “Notice”). For the following reasons, we affirm the trial court’s determination that the federal government’s position that Lam remains subject to removal does not render void his plea agreement and discharged first offender sentence. The undisputed facts are as follows. After agreeing to accept a negotiated guilty plea in 2006 to the charges of aggravated assault, theft by receiving stolen property, and possession of tools for the commission of a crime, Lam was sentenced as a first offender to serve 90-120 days in the boot camp program, followed by five years probation. Lam successfully fulfilled the terms of his sentence and probation, and the trial court thereafter issued an order discharging him without an adjudication of guilt and exonerating him of any criminal purpose in accordance with the provisions of the First Offender Act. Nevertheless, despite Lam’s discharge and exoneration under Georgia law, the federal government issued the Notice declaring that Lam was subject to removal from the United States on the ground that he had been “convicted” of aggravated assault and theft by receiving stolen property in violation of the federal Immigration and Nationality Act (INA). See 8 U.S.C. §1101 et seq. The INA provides that any “[a]ny 2 alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. §1227 (a) (2) (A) (iii). 3 Further, it includes both “a crime of violence”4 and “a theft offense (including receipt of stolen property)” in its definition of “aggravated felony,” see 8 U.S.C. 1101 (a) (43) (F), (G), and broadly defines the term “conviction” as a formal judgment of guilt ...

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