Dexter Smith filed a habeas petition seeking to withdraw a 1998 guilty plea, which he contends was given after he received ineffective assistance of counsel. The petition was denied, and we granted Smith’s application for a certificate of probable cause to appeal. Counsel admitted making an affirmative misrepresentation to Smith regarding his parole eligibility, which Smith contends induced his guilty plea. We hold that counsel was deficient for making this misrepresentation, and remand to the habeas court for appropriate findings and conclusions regarding Smith’s claim of prejudice. On November 19, 1997, Smith was indicted for first degree vehicular homicide, violation of Georgia’s controlled substances act, two counts of driving under the influence, and possession of a firearm during the commission of a felony in connection with an accident that killed an elderly passenger in another car. On April 2, 1998, after being advised by his attorney that he would be eligible for parole after serving five years, Smith pled guilty to first degree vehicular homicide, violation of the controlled substances act for possession of methamphetamines, and one count of driving under the influence. The State nol-prossed the remaining charges. Smith was sentenced to fifteen years for the vehicular homicide, a concurrent fifteen years for methamphetamine possession, and a concurrent twelve months for the D.U.I. conviction.
Smith’s attorney informed him that under OCGA § 42-9-45 f he would be eligible for parole after serving five years of his fifteen year sentence. At the habeas hearings, Smith’s attorney readily admitted that she was unaware of Georgia’s new parole board guidelines, effective for convictions entered on or after January 1, 1998, that required Smith to serve 90 of his sentence for the vehicular homicide. The habeas court denied relief after finding that counsel was under no duty to advise Smith as to his parole eligibility, that counsel’s advice was not erroneous since the Parole Board has the discretion to deviate from the 90 rule, and that Smith had not shown actual prejudice.
