The Georgia Supreme Court will hear the appeal of a Panamanian immigrant who was convicted of child molestation in Richmond County.
Lawrence Rupert Smith is serving a 40-year sentence in Macon's Central State Prison, according to the Georgia Department of Corrections Web site.
As part of a deal worked out with prosecutors, Smith pleaded guilty but mentally ill to several child molestation charges and the state did not prosecute him on nine other incidents involving sexual offenses against children.
But Smith now claims he pleaded guilty without being warned he could be deported for his crime.
His lawyer argued to the Georgia Court of Appeals that the plea should be set aside because Smith was not warned that it could affect his immigration status -- which is required by state law.
The court of appeals did not see it his way, and the Georgia Supreme Court has agreed to hear his case today.
At stake is whether the statute has any teeth, according to Sarah Gerwig-Moore, a professor at Mercer University School of Law who is representing Smith in the appeal.
"They are just supposed to say, 'Hey, by the way, if you are not a U.S. citizen this could have some impact on your immigration status,' " Gerwig-Moore said. "It's not really that burdensome."
In 2002, a security officer at Augusta Regional Airport found Smith partially undressed with a 7-year-old girl in a parked car near Bush Field. An investigation by police found that Smith had sexually abused that child and an 8-year-old boy over a two-year period.
Richmond County Assistant District Attorney Randy Sheppard will represent the prosecution today. Sheppard said the action by the court is a "harmless error" if the defendant is a U.S. citizen because a U.S. citizen cannot legally be deported as punishment for a crime.
He said the burden should be on the defense to show that Smith is not a U.S. citizen and that there is a reasonable prospect he could be deported because he was not advised properly.
If the court agrees, Smith's appeal could be sent back to a lower court, where he would have to prove he is not a U.S. citizen in order to get out of his plea.
"The mere fact that he said he was born in Panama is what I'm arguing -- that's not conclusive on the issue of whether he's been harmed because the court didn't make this inquiry," he said.
If he wins the appeal, Smith would get a retrial, Gerwig-Moore said.
"There is no automatic get-out-of-jail-free card here," she said. "This is not some technicality that is going to require prisons to open the floodgates and let out non-U.S. citizens who plead guilty to crimes."