Smith v. Gaither , 274 Ga. 39 ( 2001 )

Caeley, Justice.

Thomas Smith was indicted for burglary, and the court appointed an. attorney to represent him. Counsel negotiated a guilty plea agreement which provided that both he and the trial court woxxld recommend to the State Board of Pardons and Paroles (Board) that Smith be considered for boot camp. Smith accepted the agreement and pled guilty. When he was transferred to the state prison system, however, the Board determined that he was ineligible for boot camp because he had a prior conviction in South Carolina. Smith then brought this action seeking a writ of habeas corpus, asserting that defense counsel was ineffective because he provided misinformation regarding eligibility for boot camp and that, had Smith known of his ineligibility, he would not have entered the guilty plea. The habeas court found no merit in the claim that Smith’s Sixth Amendment right to effective counsel was violated, and denied habeas relief. Smith filed a timely notice of appeal and application for a certificate of probable cause. We granted the application to consider whether, under the circumstances, trial counsel’s representation of his client was constitutionally deficient.

“In every criminal case, there is a strong presumption that trial counsel provided effective representation for the defendant. [Cit.]” Flanigan v. State, 269 Ga. 160, 162 (2) (d) (496 SE2d 255) (1998). After conducting an extensive and thorough hearing, the habeas court in this case found that Smith failed to rebut this strong presumption. “[W]e must uphold that finding on appeal unless it is clearly erroneous. [Cit.]” Dewberry v. State, 271 Ga. 624, 625 (2) (523 SE2d 26) (1999).

The habeas court expressly found that Smith’s trial lawyer “did not promise [him] that he was going to boot camp and would be guaranteed release within 90 to 120 days.” (Emphasis supplied.) At most, the record shows that defense counsel agreed to recommend that Smith be admitted into boot camp. It is undisputed that, consistent with that promise, Smith received the attorney’s and the trial court’s recommendation. However, through no fault of his attorney, Smith was not sent to boot camp because the Board found him not to be eligible for consideration because of a prior conviction.

Smith’s ineligibility was not based upon any statutory provision, regulation or some other source readily available to a practicing attorney. Smith was ineligible pursuant to the Board’s unpublished rules. Smith’s habeas attorney subsequently became aware of the rules, but only by communicating directly with the Board. To show ineffectiveness, however, a lawyer’s performance must be unreasonable “under the circumstances confronting [him or her] before and during the trial, without resorting to hindsight. [Cits.]” (Emphasis supplied.) Turpin v. Lipham, 270 Ga. 208, 210 (3) (510 SE2d 32) (1998). Of course, the habeas attorney had every reason to investigate and determine the reason why Smith was not accepted into boot camp. However, the habeas court had to decide whether it was unreasonable during the pre-trial plea negotiations for trial counsel to rely upon statutes and other readily available authority as the basis for his agreement to recommend that Smith be sent to boot camp.

An attorney has no reason to be concerned about the effect of a client’s prior convictions on the representation unless and until he or she learns of their existence. The evidence does not demand a finding that Smith’s counsel knew that Smith had a criminal record. Smith contends that if his counsel had discovered the requirements for boot camp, then he would have inquired whether Smith had a prior conviction. However, the record does not demand or even authorize a finding that counsel made no effort to discover his client’s eligibility. The record shows that he diligently represented Smith, and the relevant question is whether his otherwise exemplary effort was unreasonable simply because counsel did not discover an unpublished Board rule. If an attorney knows of his client’s prior conviction, it might be unreasonable for him to fail to look beyond the applicable statutory and regulatory authority to determine the potential effect on sentencing. In the absence of such knowledge, however, Smith’s attorney was not constitutionally deficient simply because he did not make an independent effort to determine whether the Board, in the exercise of its discretion, would decline to consider his client to be eligible for boot camp.

The record shows that defense counsel was very circumspect in limiting his promise to a recommendation that Smith attend boot camp. A defendant has no right to determine where he will serve his sentence. The Board has decided that those defendants with prior convictions should not be admitted into boot camp. Smith’s attorney performed in accordance with his promise, the Board adhered to its unpublished policy, and Smith must now serve his sentence at an appropriate facility. The habeas court’s finding that, under the circumstances as they actually existed, there was no violation of Smith’s right to counsel is not clearly erroneous.

Judgment affirmed.

All the Justices concur, except Fletcher, C. J., and Sears, P. J., who dissent.