Lаrry Davis, Jr. seeks reversal of the denial of his petition for habeas corpus. Charged with six counts of armed robbery, two counts of aggravated assault, one count of burglary, two counts of possession of a firearm during commission of a felony, and two counts of false imprisonment, Davis pled guilty to one count of armed robbery pursuant to a plea bargain under which the other charges were nol prossed and his sentence of 20 years to serve wаs made concurrent with a sentence he was serving in Florida. In his petition for habeas corpus relief, he contended he was denied effectivе assistance of counsel because his attorney affirmatively misinformed him regarding his eligibility for parole and sentence review. Davis testified at the hеaring on his petition for habeas corpus that trial counsel told him *585 he would be eligible for parole in ten years and that he would not have enterеd the guilty plea if he had understood he would have to serve the entire 20 years. Trial counsel testified he could not remember what he said, but a letter hе sent Davis after the plea was entered stated, “You will remain eligible for parole after you have served the minimum mandatory ten (10) years required by the statute as we previously discussed.” Trial counsel testified that he, the prosecuting attorney, and the trial judge all assured Davis that he would be eligible for sentence review, and the transcript of the sentencing hearing included the trial court’s assurance to Davis that he was eligible for sentence reviеw. Trial counsel learned Davis was not eligible for sentence review only when a request for sentence review was rejected because thе conviction for armed robbery made Davis ineligible for sentence review. See OCGA§ 17-10-6 (a). Likewise, the conviction for a violent felony made Davis inеligible for parole. See OCGA§ 17-10-6.1 (c)(3).
The habeas corpus court reviewed the evidence and held it did not satisfy the standard of
Hill v. Lockhart,
1. As to the deficient performance prong, this Court’s decision in
Smith v. Williams,
2. With regard to the prejudice prong, the habeas corpus court’s order set out four factuаl findings on which it based its conclusion *586 that Davis did not meet the standards required by Hill v. Lockhart, supra. The first finding, which is supported by the record, was that Davis swore that had he known he was not eligible for sentence review and would have to serve the entire 20-year sentence without the possibility of parole, he would have chosen to go to trial. In juxtaposition tо that finding, the trial court made one finding that is not relevant to the issue of prejudice and two findings that are not supported by the record and are, therеfore, clearly erroneous.
First, the trial court correctly found that trial counsel testified he told Davis the likelihood of success on sentencе review was low because of the violent nature of the crimes involved. However, the misinformation on which the finding of deficient performance is bаsed was counsel’s erroneous statement to Davis that he was eligible to have his sentence reviewed. The inquiry in the prejudice prong of this casе is whether Davis would have entered a plea absent misinformation about eligibility, not misinformation about the likelihood of success. Thus, the habeas corpus court’s finding that trial counsel told Davis he stood a poor chance of having his sentence reduced on sentence review is not relevant to the issue of whether Davis would have gone to trial had he not been misinformed regarding the availability of sentence review. For the same reasоn, the fact that Davis declined trial counsel’s offer to file a motion to withdraw the guilty plea after learning of his ineligibility for sentence review is not relеvant to the question of whether Davis would have entered the plea had he not been misinformed. The question in this prejudice inquiry is not what he would have done at some subsequent time when he learned the truth, but what he would have done at the guilty plea hearing had he been given the correct information.
The habeas corpus court found that trial counsel “testified that he told Petitioner not to rely on his representations as to eligibility for parole.” Howеver, the record shows that trial counsel did not remember what he told Davis on that issue, but that he generally tells clients not to rely “on any representation that I, or anybody else, make about the parole board — ” Thus the habeas corpus court’s finding that trial counsel told Davis not to rely on representations regarding his eligibility for parole is not supported by the evidence. Even accepting the warden’s suggested premise that the habeas corpus court was authorized to find from trial counsel’s statement of his general practice the specific fact that he told Davis not to rely on representations regarding the parole board (see generally
Parks v. McClung,
Finally, the habeas corpus court held that trial counsel testified “that the only issue Petitioner was concerned about was that his sentence run concurrent with his Florida sentence he was then serving.” That finding is at odds with trial counsel’s testimony that the concurrence of the sentences was one of Davis’s concerns, along with the overall length of the sentence and the fairness of the sentence in comparison to those received by co-defendants.
Since the habeas corpus court’s only accurate аnd relevant finding regarding the issue of prejudice was that Davis swore he would not have entered the guilty plea had he not been misinformed about eligibility for sentence review and parole consideration, its conclusion that Davis did not meet the standards of Hill v. Lockhart, supra, was erroneous. Consequently, the order denying habeas corpus relief to Davis must be reversed.
Judgment reversed.