We granted Terry Eric Johnson a certificate of probable cause to appeal the denial of his petition for writ of habeas corpus to consider whether Johnson was entitled to habeas relief on the ground that his guilty plea attorney was ineffective for affirmatively misinforming him regarding his parole eligibility. For the reasons that follow, we conclude the habeas court erred by holding that Johnson was not affirmatively misinformed regarding his parole eligibility but we vacate and remand the case for the habeas court to determine whether, but for counsel’s deficiency, there is a reasonable probability that Johnson would have proceeded to trial rather than pled guilty. 1. To prove ineffective assistance of counsel in connection with a guilty plea, a defendant must prove that his counsel was deficient, and that absent the deficiency, there is a reasonable probability that he would have proceeded to trial rather than pleading guilty. . . .The proper standard of review of the habeas court’s ruling requires that we accept the habeas court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Citations and punctuation omitted. Upton v. Johnson , 282 Ga. 600, 601-602 652 SE2d 516 2007. The record in this case establishes that, in November 1996, Johnson entered a negotiated plea of guilty to crimes he committed in February 1996, namely, armed robbery and possession of a firearm by a convicted felon, in exchange for a sentence of “20 years to serve” on the armed robbery charge.1 The transcript of the guilty plea hearing reflects that Johnson specifically asked whether he would “do the straight twenty years, or do just ten off the twenty.” In response, Johnson’s counsel stated that he had explained to Johnson that an armed robbery charge “carries a mandatory minimum of ten years, and after that, as far as I know, it’s parolable. . . . I also told him it was not a fixed twenty years. You don’t have to stay twenty years. That’s up to . . . the State Board of Pardons and Paroles.” Although defense counsel was correct regarding the 10-year mandatory minimum sentence for armed robbery, see OCGA § 16-8-41 b, counsel’s other information was unquestionably incorrect because armed robbery is one of the serious violent felonies, OCGA § 17-10-6.1 a 2, and subsection c 4 of that statute mandates that the full sentence imposed for a first conviction of armed robbery be served without reduction by parole or any other sentence-reducing measures.2 The habeas court correctly recognized that defense counsel gave wrong advice to appellant regarding parole. However, citing Rios v. State , 281 Ga. 181 2 637 SE2d 20 2006, the habeas court found that Johnson failed to prove that he was prejudiced by counsel’s deficient performance based on its determination that the trial court in statements to Johnson had corrected counsel’s wrong advice. This finding by the habeas court was clearly erroneous. The transcript of the guilty plea hearing reflects that the trial court informed Johnson that the Board of Pardons and Parole “determines how long you serve” and that “nobody’s here telling you how long it’s going to be, ’cause nobody in this room knows.” However, as established by OCGA § 17-10-6.1 c 4, the State Board of Pardons and Parole is expressly denied the authority to reduce the length of a term-of-years sentence imposed for an armed robbery conviction and, pursuant to that same unambiguous statutory language, both the trial court and counsel should have known that Johnson was categorically ineligible for any parole and would have to serve the entire 20 year sentence. The trial court’s information thus did not serve to correct the erroneous advice given by defense counsel but instead misleadingly reinforced that erroneous advice by indicating to Johnson that uncertainty existed as to the amount of time he would be required to serve.
We therefore hold that Johnson carried his burden of establishing that his defense counsel performed deficiently by affirmatively misleading Johnson regarding his parole eligibility. After applying the relevant legal principles to the facts in this case, we further hold that the habeas court clearly erred when it found Johnson was not prejudiced by defense counsel’s deficient performance because that erroneous finding was based on the habeas court’s mistaken conclusion that the trial court had corrected defense counsel’s error.
