Dr. Narendra Patel was charged with sexual battery, and his lead counsel employed another attorney with expertise in healthcare law to give advice regarding the effects of any conviction on Dr. Patel’s ability to practice medicine. He was advised of a likely six-month suspension of his medical license, temporary loss of hospital privileges, and adverse publicity, and he subsequently entered a plea of nolo contendere under the first offender statute. OCGA § 42-8-60. After the expiration of his license suspension and the completion of his probated sentence, Dr. Patel was prohibited for ten years from participating in Medicare, Medicaid, and all federal health care programs pursuant to the mandatory exclusion of 42 USC § 1320a-7 and corresponding regulations. When he failed to obtain administrative or judicial relief from the exclusion, Dr. Patel filed an application for writ of habeas corpus, alleging ineffective assistance of counsel. After a hearing, the habeas court found that Dr. Patel specifically raised the question of the impact of the proposed plea on his relations with such payors as Medicare and Medicaid, and was then expressly advised that there would not be any long-term adverse consequences on his practice. The habeas court further found that the healthcare attorney failed to perform the basic research which would have revealed the mandatory exclusion and that, had Dr. Patel known of such a consequence, he would not have accepted the plea agreement, but would have proceeded to trial. Citing Rollins v. State , 277 Ga. 488 591 SE2d 796 2004, and concluding that counsel made gross affirmative misrepresentations which induced Dr. Patel to plead nolo contendere, the habeas court ordered that the sentence be stricken and that the plea be allowed to be withdrawn. The State appeals directly. OCGA § 9-14-52 a, c.
The State contends that the habeas court failed to apply the correct legal standard. To prove ineffective assistance of counsel with regard to a plea of nolo contendere, a defendant must show that his attorney’s performance was deficient and that, but for counsel’s errors, there is a reasonable probability that the defendant would have insisted on proceeding to trial rather than entering the plea. Smith v. Williams , 277 Ga. 778, 779 1 596 SE2d 112 2004; Hopkins v. State , 274 Ga. App.872 __SE2d__. This two-pronged test for ineffective representation in connection with a plea, which is set forth in Rollins v. State , supra at 491 2, and derived from Strickland v. Washington , 466 U. S. 668 104 SC 2052, 80 LE2d 674 1984, is reflected in the language of the habeas court’s order. However, the State argues that, since Dr. Patel’s attorneys were of excellent reputation, rendered vigorous and effective representation, and gave accurate advice, they should not be found ineffective for failing to answer a single question pertaining to a collateral matter.
