Opinion
WR-93 645-01
05-25-2022
EX PARTE MAX VILLARREAL, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2020CR0999-W1 FROM THE 290th DISTRICT COURT BEXAR COUNTY
Walker, J., filed a concurring opinion.
CONCURRING OPINION
Today the Court denies habeas corpus relief to Applicant, who pled guilty to robbery. He claims that he received ineffective assistance of counsel when his trial counsel told him he would serve his state sentence concurrently with a federal sentence and failed to advise him of the truth: that his state sentence would not run concurrently with the federal sentence. After reviewing the record, I concur with the Court's decision to deny relief because had he been correctly informed, he likely would have still pled guilty and not gone to trial. But that does not mean that counsel's performance was acceptable. I believe counsel performed deficiently, and it is important to highlight what she did wrong so that defense lawyers with clients with state and federal charges will be aware of possible concurrent and consecutive sentencing issues.
I - Ineffective Assistance of Counsel and Guilty Pleas
"A guilty plea is not knowing and voluntary if made as a result of ineffective assistance of counsel." Ex parte Moussazadeh, 361 S.W.3d 684, 689 (Tex. Crim. App. 2012); Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980). In the context of a guilty plea, "[w]hen a defendant challenges the voluntariness of a plea entered upon the advice of counsel, contending that his counsel was ineffective, 'the voluntariness of the plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999) (quoting Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997)); Hill v. Lockhart, 474 U.S. 52, 56, 59 (1985).
II - Counsel Failed to Correctly Advise Her Client
Applicant claims that trial counsel and the trial court told him he would serve his sentence in this case concurrently with a federal sentence and that as soon as he entered his plea he would be transferred to federal custody to take care of his "violation." Apparently, he was on federal supervised release when he pled guilty in this case. He alleges that neither his trial counsel nor the trial court advised him that his sentence was not going to run concurrently with the federal sentence. The federal authorities will not even take custody of him to proceed on the federal case until the state releases him, so he is serving the entirety of his state sentence while his federal case remains pending without any sentence at all, and therefore he is not serving his sentences concurrently.
In response to Applicant's claim, trial counsel provided an affidavit in which she explains:
The defendant advised me he had a federal hold for violations of his federal supervised release. After numerous attempts to speak with his federal probation officer and/or authorities in the federal system, I was finally able to speak with the federal probation officer. It is my understanding that the federal authorities were waiting for the state case to be concluded, either with a plea/sentence or dismissal. Once the state case is done, then the federal authorities will take over. I asked whether the state case could run concurrently with the federal case, but they said the state case has to be handled first, then the federal case will take over. I asked the state prosecutor and Judge if we could run the state case concurrent with the federal case. The State and Court had no objection to that. I even requested the Judge [to] order that the state case run concurrent with the federal case. I advised my client that the [sic] I would request that the Court order the state sentence run concurrent with the federal case, but that it was a request only. The Court did note on her judgment that the state case run concurrent with the federal case.
Writ R. 66-67.
Even if counsel's explanation is accepted as true, it still does not explain why she did not relay to Applicant the information that she learned regarding the federal case. Applicant claims he told counsel that concurrent sentencing was important to him. This is corroborated by counsel's affidavit relating her efforts in asking Applicant's federal probation officer, the state prosecutor, and the trial court about having the sentences run concurrently. From her conversation with Applicant's federal probation officer, she learned that the federal authorities would not proceed on the federal case until the state case was over. Based on this conversation, it would have been obvious that concurrent sentences were not going to happen. From that point onward, when counsel asked the prosecution and the trial court whether Applicant's sentences could run concurrently, she should have known that they would not.
Trial counsel should have told Applicant, before he pled guilty, that concurrent sentencing would be at the discretion of the federal court, not the state court, and that whatever occurred in state court would have no effect on his federal case. Rather than making sure that Applicant was fully aware before he pled guilty that concurrent sentencing would probably not happen, she left him with the false hope that it was likely by telling him she would request it.
"[A] criminal defense attorney must have a firm command of the facts of the case as well as governing law before he can render reasonably effective assistance of counsel." Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Consequently, "'[i]gnorance of well-defined general laws, statutes and legal propositions is not excusable and ... may,' if it inures to the client's prejudice, 'lead to a finding of constitutionally [ineffective] assistance of counsel.'" Ex parte Lewis, 537 S.W.3d 917, 921 (Tex. Crim. App. 2017) (quoting Ex parte Chandler, 182 S.W.3d 350, 358 (Tex. Crim. App. 2005)).
Trial counsel (and possibly even the trial court) apparently did not know that the state trial court cannot decide whether the state sentence and the federal sentence are to run concurrently. The state court, rendering a decision before the federal court, has no control over what the federal court will do later. Even if the state court explicitly orders that the state sentence run concurrently with the federal sentence, the federal district court could very well choose to run the federal sentence consecutively to the state sentence. When the federal court has its turn to impose a sentence in the federal case, "[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently." 18 U.S.C. § 3584(a). Federal district court "[j]udges have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings, including state proceedings." Setser v. United States, 566 U.S. 231, 236 (2012). Instead, "concurrent sentences imposed by state judges are nothing more than recommendations to federal officials." Reynolds v. Thomas, 603 F.3d 1144, 1149 (9th Cir. 2010) (quoting Taylor v. Sawyer, 284 F.3d 1143, 1150 (9th Cir 2002) (Norris, J, concurring)). If counsel had known concurrent sentencing would be a matter for the federal district court, not the state court, it would appear that she would have made that clear to Applicant rather than merely telling him during the state court proceedings that she would try to get concurrent sentencing.
But of course, to be entitled to habeas corpus relief on a claim that a guilty plea was involuntary due to ineffective assistance of counsel, the applicant must show not only that counsel's advice with respect to the plea offer fell outside the range of competence but also that counsel's errors affected the outcome of the plea process-that is, that there is a reasonable probability that but for counsel's errors, the applicant would not have accepted the offer and pled guilty but would have insisted on going to trial. Moody, 991 S.W.2d at 857-58. Counsel's failure here did not affect the outcome because Applicant would not have insisted on going to trial. In his letter supporting his application for writ of habeas corpus, he explains: "The only reason I didn't take it to trial because my lawyer told me that if I would the D.A. was gonna give me the maximum . . . and that scared me." Applicant did not plead guilty to get concurrent sentences; the reason he wanted to plead guilty was to avoid a maximum sentence on the charged offense, aggravated robbery, a first degree felony offense with a range of life or five to ninety-nine years. Applicant's plea deal allowed him to plea guilty to regular, non-aggravated robbery, a second degree offense, and he received a sentence of five years, which is towards the low-end for a second degree felony. 5
Writ R. 24.
Tex. Penal Code Ann. §§ 29.03, 12.32 (first degree felony punishable by life or five to ninety-nine years imprisonment).
Id. §§ 29.02(b) (robbery is a second degree offense), 12.33 (second degree felony punishable by two to twenty years imprisonment).
III - Conclusion
In conclusion, counsel knew that the federal case was not going to proceed until after the state case finished. And she knew that concurrent sentences were important to Applicant. Yet, she let Applicant plead guilty without telling him the truth. Counsel's performance was deficient. Defense attorneys whose clients are facing state and federal charges should all be aware that the state courts cannot control what occurs in federal court. Even if defense counsel, the prosecution, and the state trial court want a later federal sentence to run concurrent to a state sentence, that will not actually happen unless the federal court decides to run the federal sentence concurrent with the state sentence. 6