Lawrence Rupert Smith filed a motion for out-of-time appeal of his 2003 plea of guilty but mentally ill to several child molestation offenses. Smith asserted that he is not a United States citizen, that the trial court violated OCGA § 17-7-93 c1 and Uniform Superior Court Rule 33.8 C 22 by failing to advise him on the record that his guilty plea may have an impact on his immigration status, and that his plea counsel was constitutionally ineffective in advising him that a guilty plea cannot be appealed. The trial court summarily denied the motion, and the Court of Appeals affirmed, holding that “the effect of a guilty plea on a resident alien’s immigration status is a ‘collateral consequence’ of the plea, and a guilty plea will not be set aside because the defendant was not advised of such a possible collateral consequence.” Smith v. State , 298 Ga. App. 458, 459 680 SE2d 516 2009. We granted Smith’s pro se petition for a writ of certiorari3 and directed the parties to brief the following question: Did the Court of Appeals err in holding that a plea court’s failure to follow OCGA § 17-7-93 c would not require setting aside a guilty plea because the impact that the plea might have on a defendant’s immigration status is merely a collateral consequence of the plea As discussed below, we conclude that the Court of Appeals did not err in holding that immigration consequences are “collateral consequences” of a guilty plea. However, that does not end our analysis, and it should not have ended that of the Court of Appeals. Under § 17-7-93 c, Rule 33.8 C 2, and the United States Supreme Court’s recent decision in Padilla v. Kentucky , 558 U.S. __, __ 130 SC 1473, 1486, 176 LE2d 284 2010, defendants who are not advised by their counsel or the trial court of the impact that their guilty plea may have on their immigration status may, under some circumstances, be entitled to withdraw their guilty pleas. In this case, although the State concedes that the trial court did not comply with § 17-7-93 c and Rule 33.8 C 2, Smith cannot, on the face of the current record, show harm, or “manifest injustice,” as a result. Consequently, he is not entitled to a direct appeal, timely or out-of-time, and his plea counsel could not have been ineffective in failing to advise him to appeal. For relief Smith must turn to habeas corpus. In that context, he could not raise a claim based on violation of the statute or rule, but he may seek to raise the parallel ineffective assistance of counsel claim recognized in Padilla . We therefore affirm the judgment below, although on somewhat different grounds.
1. The record on appeal shows as follows. Smith is a native of Panama who has lived in the United States for a number of years. On November 20, 2001, a Richmond County grand jury indicted him on four counts of child molestation, four counts of enticing a child for indecent purposes, five counts of aggravated child molestation, and one count of incest. On April 25, 2003, after a series of delays to ensure that Smith was competent, he pled guilty but mentally ill to three counts of child molestation and two counts of aggravated child molestation, and the remaining nine counts against him were nolle prossed. At the plea hearing, the trial court ensured that Smith was advised of his Boykin rights, see Boykin v. Alabama , 395 U.S. 238 89 SC 1709, 23 LE2d 274 1969, but neither the hearing transcript nor the Acknowledgment and Waiver of Rights form that Smith signed reference any immigration consequences of the plea. The trial court sentenced Smith to a total of 80 years, with 50 years to be served in confinement followed by 30 years on probation.
