Opinion
NO. WR-86,111-01
04-03-2019
EX PARTE MICHAEL ALLEN CHAMBERLAIN, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 5332A IN THE 100TH DISTRICT COURT CARSON COUNTY
KEASLER, J., delivered the opinion of the Court, in which HERVEY, RICHARDSON, YEARY, NEWELL, KEEL, WALKER, and SLAUGHTER, JJ., joined. KELLER, P.J., concurred. OPINION
Michael Allen Chamberlain was initially charged with aggravated sexual assault of a child, a first-degree-felony offense. Pursuant to a plea bargain, Chamberlain pleaded guilty to the lesser-included offense of "indecency with a child." In this post-conviction habeas proceeding, Chamberlain claims that he intended to plead guilty to indecency with a child by "exposure," a third-degree felony—and accordingly, that his conviction for second-degree-felony indecency by "sexual contact" is unlawful. We deny relief.
See TEX. PENAL CODE § 22.021(a)(1)(B)(i), (ii).
See Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim. App. 2009); Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004).
Compare TEX. PENAL CODE §§ 21.11(a)(2), (d) (defining indecency with a child by exposure as a third-degree felony), with id. §§ 21.11(a)(1), (d) (defining indecency with a child by sexual contact as a second-degree felony).
I. FACTS
The following facts are based on the habeas record as well as the habeas judge's findings of fact and conclusions of law.
A. Pre-plea proceedings.
Chamberlain was initially charged with two counts of first-degree-felony aggravated sexual assault of a child under 14. According to an affidavit from the elected district attorney, which the habeas court cited multiple times in its findings of fact, "the first [oral] plea offer made by the State . . . was for a plea to at least one count of . . . aggravated sexual assault of a child." Then, "[a]fter the discovery of potential Brady material that could affect the State's case, another oral offer of a plea to second degree felony indecency [with] a child by contact was made to [plea counsel] and was later accepted by Applicant." The offer was for a ten-year term of deferred-adjudication probation. The State says that it ran this potential second-degree-felony plea offer past the victim's parents, and they approved.
Chamberlain claims that the State actually offered a plea bargain for third-degree-felony indecency with a child by exposure. In support of this claim, Chamberlain offers an affidavit from plea counsel. Plea counsel swears that the State offered, and that he conveyed to Chamberlain, a third-degree felony, indecency-by-exposure plea bargain. The habeas court expressly found this portion of plea counsel's affidavit to be not credible. Instead, the habeas court credited the State's affidavit, in which the district attorney says that his office never offered a third-degree-felony plea bargain to plea counsel or to Chamberlain.
B. The plea paperwork.
But on its face, the plea paperwork seems to suggest otherwise. As relevant here, the plea paperwork in this case generally consisted of four documents: the "Stipulation of Evidence," the "Waivers of Parties," the "Punishment Recommendations," and the "Order of Deferred Adjudication."
The stipulation of evidence refers solely and specifically to the offense of indecency with a child by exposure:
On or about the 14th day of March , 2013 in CARSON County, Texas, [Chamberlain] did then and there with intent to arouse or gratify the sexual desire of the defendant, intentionally or knowingly expose the defendant's genitals knowing that F-13001086, a child younger than 17 years of age, was present.Chamberlain's signature appears beneath this stipulation.
The "Waivers of Parties" document contains a written judicial confession, which states, among other things: "I, the defendant, state that I have read the indictment or information filed in this case and that I committed each and every allegation it contains. I am guilty of the offense alleged as well as all lesser included offenses." Chamberlain's signature appears beneath this confession.
The punishment recommendations reflect that it was "mutually agreed and recommended to the court" that the State would proceed only on the "lesser included offense of INDECENCY WITH A CHILD - PC 22.11(a)(2) - A 2ND DEGREE FELONY." But (a)(2) is the subsection of Penal Code Section 21.11 pertaining to third-degree-felony indecency by exposure. Subsection (a)(1) pertains to second-degree-felony indecency by sexual contact. In any event, Penal Code Section 22.11 describes the offense of "Harassment by Persons in Certain Facilities; Harassment of Public Servant," which is always a third-degree felony. Chamberlain, plea counsel, and the prosecutor all signed this document.
These discrepancies carried over to the order of deferred adjudication. The offense is listed only as "indecency with a child, a lesser included offense than alleged in the indictment," and the statute is listed as "22.11(a)(2) Penal Code." The offense is described as a "2nd degree felony."
The State admits, and the habeas court has found, that the State prepared both the stipulation of evidence and the punishment recommendations. Per the State:
The stipulation of evidence was incorrect and used the plea language from recently drafted plea paperwork for indecency by exposure, as opposed to the actual plea arrangement, which was indecency by contact. This was a major oversight and error . . . [h]owever, it did not reflect the agreement between the State and the Applicant.Similarly, the State admits that "[t]he criminal statutory offense listed on the judgment was also incorrectly drafted by my office." "Both," says the State, "were cut and paste errors from a previous plea." But the State says that these errors "[i]n no way . . . capture[d] the plea agreement that" the parties originally bargained for.
C. The plea hearing.
At the plea hearing, the trial judge said to Chamberlain, "if I accept you[r] plea to a second degree felony, a second degree of indecency has a maximum punishment of 20 years and a minimum punishment of two." Chamberlain responded that he understood. The trial judge then asked, "How do you plead to the lesser-included second degree felony offense of indecency with a child," and Chamberlain responded, "Guilty." The State offered into evidence the written stipulation of evidence, which described the offense of indecency with a child by exposure, but it did not offer Chamberlain's judicial confession, which admitted to "all lesser included offenses" of aggravated sexual assault of a child. Nevertheless, two copies of the judicial confession appear in the appellate record—one that was not signed by the trial judge but was filed with the district-court clerk on the day of the plea; and one that was signed by the trial judge, filed with the clerk five days later.
At the conclusion of the hearing, the trial judge announced that there was sufficient evidence to find Chamberlain "guilty beyond a reasonable doubt of the second degree lesser-included offense of indecency with a child" and proceeded to place Chamberlain on a ten-year term of deferred adjudication. Neither plea counsel nor Chamberlain objected to, or otherwise voiced any disagreement with, the trial judge's assertion that Chamberlain was pleading guilty to a second-degree felony.
D. Post-plea proceedings.
Barely a month after Chamberlain was placed on probation, the State filed a motion to adjudicate. At the revocation hearing, the trial judge inquired whether Chamberlain's case was an aggravated sexual assault. The parties responded:
PROSECUTOR: Your Honor, it's a plea to a lesser included—Following the hearing, the trial judge adjudicated Chamberlain guilty of second-degree-felony indecency with a child and sentenced him to twenty years' imprisonment. The judgment adjudicating guilt listed the offense of conviction as "indecency with a child," cited Penal Code Section 22.11(a)(2), and stated that it was a "2ND degree felony."
THE COURT: Lesser included.
PROSECUTOR:—on indecency with a child, a second degree felony with a regular punishment range of—
THE COURT: Of two to 20?
PROSECUTOR: Yes, Your Honor.
THE COURT: [Defense Counsel], do you concur it's a two to 20 on indecency?
DEFENSE COUNSEL: Yes. Indecency with a child is a second degree felony, two to 20.
Chamberlain appealed, arguing that the only evidence supporting the guilty plea was the stipulation of evidence, which expressly described an offense of exposure. Thus, according to Chamberlain, there was no evidence in the record to support the element of "sexual contact" necessary for a second-degree-felony indecency conviction. But the court of appeals observed that the written judicial confession contained an admission that Chamberlain was "guilty of the offense alleged [aggravated sexual assault of a child] as well as all lesser included offenses." This confession, the court of appeals concluded, was broad enough to encompass the offense of indecency by sexual contact. The court of appeals reformed the written judgment "to reflect the offense of conviction to be indecency with a child by sexual contact and the operable statute to be Penal Code section 21.11(a)(1)," and otherwise affirmed Chamberlain's conviction.
See Chamberlain v. State, No. 07-14-00011-CR, 2015 WL 1743478, at *5-6 (Tex. App.—Amarillo May 12, 2015) (mem. op., not designated for publication).
Id. at *6.
Id.
II. ANALYSIS
In this post-conviction habeas corpus proceeding, Chamberlain alleges that his conviction and sentence are unlawful for a number of reasons. First, Chamberlain claims that his second-degree-felony plea was involuntary because he thought he was pleading guilty to the third-degree-felony offense of indecency by exposure. Second, Chamberlain claims that plea counsel was ineffective for allowing Chamberlain to plead guilty to second-degree-felony indecency by sexual contact when Chamberlain intended to plead guilty to third-degree-felony indecency by exposure. Third, Chamberlain argues that there is "no evidence" to support his conviction for indecency by sexual contact. Fourth, Chamberlain argues that his twenty-year prison sentence is illegal. Fifth, Chamberlain argues that his conviction generally violates due process. Sixth, Chamberlain alleges that his appellate counsel was ineffective for failing to argue that the judicial confession was never "offered, accepted, or judicially noticed by the trial court and thus" should not been considered by the court of appeals. We address each issue in turn.
A. Chamberlain's plea was not involuntary.
If a guilty plea is not "voluntary and knowing, it has been obtained in violation of due process and is therefore void." For the plea to be voluntary and knowing, "the defendant must have an actual awareness of the nature and gravity of the charges against him and of the constitutional rights and privileges that he necessarily relinquishes—in short, 'a full understanding of what the plea connotes and of its consequences.'"
E.g., McCarthy v. United States, 394 U.S. 459, 466 (1969).
Davison v. State, 405 S.W.3d 682, 686-87 (Tex. Crim. App. 2013) (quoting Boykin v. Alabama, 395 U.S. 238, 244 (1969)).
In this case, Chamberlain claims that his understanding of the consequences of his plea was, as a result of errors made by the trial judge, prosecutor, and his plea counsel, fundamentally flawed. Chamberlain contends that he did not knowingly and voluntarily assent to a possible two-to-twenty-year punishment range; he argues that, based on his understanding of the plea when he entered it, he risked only a possible two-to-ten-year punishment range upon revocation. Chamberlain's involuntary-plea claim is therefore based entirely on the premise that he originally intended to plead guilty to, and thought he was pleading guilty to, third-degree-felony indecency by exposure.
But the habeas judge's findings of fact belie that premise. The habeas court found, among other things, that (1) the State never extended a third-degree-felony indecency by exposure plea offer to Chamberlain or to plea counsel, (2) plea counsel's recollection that he conveyed a third-degree offer from the State to Chamberlain is "not credible," (3) at the time of the plea, it was C hamberlain's "intention and understanding that he was entering a plea to a deferred adjudication probation for a second degree felony offense," and (4) Chamberlain "intended to confess to each and every allegation in the indictment and plea[d] guilty to the second degree felony offense of indecency with a child by sexual contact."
Each of these findings finds at least some support in the habeas record. The first is supported by the State's affidavit, which the habeas judge repeatedly cited in his written findings and conclusions. The second finding is the habeas judge's assessment of witness credibility, which we will almost always defer to. The third and fourth of these findings are supported by the State's affidavit and by the fact that, at the plea hearing, neither Chamberlain nor plea counsel signaled any disagreement or surprise when the trial judge described a second-degree-felony punishment range.
See, e.g., Ex parte Navarijo, 433 S.W.3d 558, 568 (Tex. Crim. App. 2014) ("This Court ordinarily defers to the habeas court's fact findings . . . when those findings are supported by the record.").
See id.
We reject the habeas judge's suggestion that "[n]othing in the record indicates any intent by the Applicant or Applicant's counsel to enter a plea to a third degree felony offense[.]" On the contrary, the fact that Chamberlain signed a stipulation of evidence describing the offense of indecency by exposure is, standing alone, a highly probative indication that that was the exact offense that Chamberlain intended to plead guilty to. Plea counsel's affidavit, if credited, would also support this conclusion. Finally, the fact that the punishment recommendations, deferred-adjudication order, and judgment adjudicating guilt each refer to an offense under subsection (a)(2) might also support the inference that Chamberlain intended to plead guilty to an offense under Penal Code Section 21.11(a)(2), which defines indecency with a child by exposure.
Nevertheless, it is ultimately Chamberlain's burden on habeas to demonstrate, by a preponderance of evidence, that his plea was involuntary. In this context, that means that it is Chamberlain's burden to prove that he actually intended to plead guilty to indecency with a child by exposure. And the habeas judge, as the "original" habeas fact finder, has parsed the credibility and weight of the evidence and concluded that Chamberlain failed to meet this burden. The record generally supports the habeas court's various findings, and so as the "ultimate" fact finder in habeas corpus proceedings, we adopt them.
See Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) ("An applicant seeking habeas corpus relief on the basis of an involuntary plea must prove his claim by a preponderance of the evidence.") (citations omitted).
E.g., Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008) (citations omitted).
Id. ("[I]n most circumstances, we will defer to and accept a trial judge's findings of fact and conclusions of law when they are supported by the record.").
Under these findings, we conclude that Chamberlain never intended to plead guilty to third-degree-felony indecency by exposure. Instead, we conclude that Chamberlain fully intended to plead guilty to second-degree-felony indecency by sexual contact, and he received exactly what he bargained for—deferred adjudication with a possibility of two to twenty years in prison should he violate the conditions of his probation. Through the inattentiveness of the trial judge, prosecutor, plea counsel, and perhaps even Chamberlain himself, that agreement was, to put it mildly, poorly memorialized. But that does not make Chamberlain's decision to plead guilty to a second-degree-felony offense involuntary or unknowing. This claim is denied.
B. Even if plea counsel performed deficiently, Chamberlain cannot show prejudice.
"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient." To make this showing, the defendant must demonstrate "that counsel's representation fell below an objective standard of reasonableness." "Second, the defendant must show that the deficient performance prejudiced the defense." In the plea-bargain context, this means that "the defendant must show that 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."
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Id. at 687-88.
Id. at 687.
Hill v. Lockhart, 474 U.S. 52, 59 (1985) (footnote omitted).
Chamberlain argues that plea counsel was ineffective for failing to object or correct the trial judge when the judge announced a second-degree-felony punishment range during the plea hearing. He also contends that plea counsel was ineffective for failing to catch the various discrepancies within the plea paperwork, including the stipulation of evidence, written punishment recommendations, judicial confession, order of deferred adjudication, and judgment adjudicating guilt.
In light of our resolution of the preceding issue, we do not think that plea counsel was ineffective in failing to object when the trial judge recited a second-degree-felony punishment range during the plea hearing. The State's lowest offer was for deferred adjudication on the second-degree-felony offense of indecency by sexual contact, and that is the offer Chamberlain wanted to, and did, accept. So when the trial judge informed Chamberlain that if he violated the conditions of his probation he might be sentenced anywhere from two to twenty years in prison, plea counsel had no reason to object. The trial judge was accurately reciting the terms of the plea-bargain agreement.
We are inclined to agree with Chamberlain that plea counsel performed deficiently in failing to notice that the stipulation of evidence described the offense of indecency with a child by exposure, rather than indecency by sexual contact. And we are willing to assume arguendo that counsel was deficient in failing to notice that the punishment recommendations referred to Penal Code Section 22.11(a)(2), "Harassment of Persons in Certain Facilities," instead of Penal Code Section 21.11(a)(1).
However, neither of these mistakes could have prejudiced Chamberlain. If plea counsel had noticed that the stipulation of evidence referred to the offense of indecency by exposure and brought that error to everyone's attention, the stipulation would simply have been amended to reflect the offense of indecency by sexual contact, because that was the parties' mutual bargain. Likewise, if counsel had caught the reference to Penal Code Section 22.11(a)(2) in the punishment recommendations, the outcome of the plea proceeding would have been exactly the same, except that the paperwork would have properly reflected Penal Code Section 21.11(a)(1). And even assuming plea counsel had a duty to monitor the order of deferred adjudication and judgment adjudicating guilt for discrepancies, once again, counsel's failure to correct those errors was, for the same reasons, non-prejudicial.
If plea counsel was deficient at all, he was deficient in failing to notice that certain portions of the plea paperwork did not accurately reflect the parties' intentions. But because Chamberlain ultimately got exactly what he bargained for, counsel's allegedly deficient conduct was not prejudicial. This claim is denied.
C. Chamberlain's "no evidence" claim is not cognizable.
Chamberlain claims that there is no evidence to support his conviction for second-degree-felony indecency with a child by sexual contact. Specifically, he argues that the only evidence properly before the trial court was the "Stipulation of Evidence," which itself contains only an admission that he exposed himself to the victim. It does not admit to or otherwise contain any evidence of sexual contact between Chamberlain and the victim.
Ordinarily, a claim of "no evidence" is cognizable in post-conviction habeas corpus proceedings. However, Chamberlain raised, and the court of appeals rejected, this very claim on direct appeal. In its opinion on direct appeal, the court of appeals noted that the signed "Judicial Confession" contained an admission that Chamberlain was guilty of "all lesser included offenses" of aggravated sexual assault of a child under 17. Because indecency with a child by sexual contact can be a lesser-included offense of aggravated sexual assault of a child under 17, the court of appeals took this confession as some evidence to support a guilty plea for the offense of indecency with a child by sexual contact.
E.g., Ex parte Perales, 215 S.W.3d 418, 419 (Tex. Crim. App. 2007) (citations omitted).
Absent some new applicable law or evidence, habeas corpus is not a forum to re-litigate claims that were raised and rejected on direct appeal. Chamberlain suggests that his present no-evidence claim is subtly different from the no-evidence claim he raised on direct appeal, such that the claim he is making now was not, strictly speaking, rejected or even raised on appeal. In this post-conviction proceeding, Chamberlain emphasizes that the judicial confession was not offered by the State, was not accepted into evidence by the trial judge, and was not even signed by the trial judge on the day of the hearing.
E.g., Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994).
But the suggestion that this more nuanced argument was neither raised nor rejected on direct appeal is mistaken. More than once, appellate counsel advanced this very argument before the court of appeals and this Court. In his initial appellate brief, appellate counsel observed that "the only evidence offered and admitted at trial was the Stipulation of Evidence[.]" When the court of appeals issued its opinion affirming Chamberlain's conviction, appellate counsel filed a motion for rehearing arguing that it was error for the court of appeals to consider the judicial confession in support of the guilty plea because it "was not offered into evidence, was not noted or referenced in the reporter's record at the time of the plea, was not approved by the trial court at the time of the plea [and] was not signed by the trial court." The court of appeals denied rehearing. Thereafter, appellate counsel filed a petition for discretionary review in this Court, in which he argued that the court of appeals erred to consider the judicial confession for the reasons stated above. We refused his petition.
Chamberlain thoroughly exhausted his direct-appeal avenues as to this claim, and he offers no new evidence or arguments in support of it now. This claim is denied.
D. Chamberlain's sentence is not illegal.
Chamberlain claims that his twenty-year sentence is illegal because he thought he was pleading guilty to the third-degree felony offense of indecency by exposure, which carries a maximum penalty of ten years' imprisonment.
This claim is without merit. We have already rejected Chamberlain's claim that he originally intended to enter into a third-degree-felony plea agreement. That being the case, Chamberlain's twenty-year sentence was consistent with a second-degree-felony punishment range and his understanding of the plea agreement. Furthermore, Chamberlain's twenty-year sentence does not conflict with anything in the judgment adjudicating guilt as amended by the court of appeals. This claim is denied.
See Chamberlain, 2015 WL 1743478, at *6 ("We hereby reform the judgment to reflect the offense of conviction to be indecency with a child by sexual contact and the operable statute to be Penal Code section 21.11(a)(1).").
E. Chamberlain's conviction comports with due process.
Next, Chamberlain argues that, for a number of reasons, his conviction for second-degree indecency by sexual contact violates due process. Although this ground is arguably multifarious, in an abundance of caution we will address each of his sub-complaints.
At the outset, Chamberlain seems to argue that the State violated its duty under Brady v. Maryland to disclose exculpatory evidence. Specifically, Chamberlain claims that the State did not timely disclose the existence of a "partial recantation by the victim." Although the record does not contain a copy of the victim's recantation (indeed, the record does not even indicate whether this recantation was ever reduced to writing), the record does contain a letter, dated four days after the plea hearing, from the trial prosecutor to plea counsel. This letter was apparently intended to document a previous conversation between the prosecutor and plea counsel, wherein the prosecutor had informed counsel of two potentially exculpatory pieces of evidence. First, the prosecutor revealed that certain "pornographic images" had been found on the victim's phone, which she had apparently "transmitted to two unknown individuals." Second, the prosecutor revealed "that there was a partial recantation made by the victim regarding consent in this sexual assault, even though that was not a material element that the State was required to prove." In the letter, the prosecutor states that this information was given to plea counsel prior to the plea hearing.
See Brady v. Maryland, 373 U.S. 83, 87 (1963) ("[T]he suppression by the prosecution of evidence favorable to the accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution"). But see also Ex parte Palmberg, 491 S.W.3d 804, 814 n.18 (Tex. Crim. App. 2016) ("It is unclear whether or not Brady . . .goes so far as to render guilty pleas involuntary if the prosecution does not disclose exculpatory information at the time of the plea[.]").
Chamberlain himself affirms that this information was disclosed to plea counsel "immediately prior" to the plea hearing. Because Chamberlain persisted in his decision to plead guilty after learning that this potentially exculpatory material existed, we do not perceive any Brady violation.
Cf. Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999) ("We have indicated that, if the evidence was turned over in time for the defendant to use it in his defense, the defendant's Brady claim would fail.") (citations omitted).
Chamberlain also complains that plea counsel was ineffective for (1) failing to delay the plea hearing so that he could further investigate this supposedly exculpatory evidence, and (2) failing to adequately explain the significance of this evidence to Chamberlain. As for the first of these sub-complaints, Chamberlain does not allege what, if anything, a further investigation by plea counsel would have revealed about this exculpatory evidence. In the absence of any such allegation, we cannot find that plea counsel's advice to Chamberlain to continue with the plea was deficient.
See, e.g., Ex parte Harvin, No. WR-72,328-03, 2016 WL 5400892, at *21 (Tex. Crim. App. Sept. 21, 2016) (not designated for publication) ("To even obtain a hearing on whether counsel's investigation was deficient, the convicted person must explain what further investigation would have revealed and how that information would be beneficial to him.") (citing Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994)).
As for the second sub-complaint, Chamberlain does not expressly allege that, but for counsel's failure to explain the significance of the victim's "partial recantation," he would have insisted on a trial for first-degree-felony aggravated sexual assault of a child. Even if he had, we would not find that claim credible. In the "partial recantation" that Chamberlain repeatedly refers to in his habeas application, the victim apparently indicated that her sexual encounter with Chamberlain was more consensual than she had initially indicated. But, as the State noted in its letter to plea counsel, the State is not required to prove non-consent as an element of sexual assault of a child.
See Hill, 474 U.S. at 59.
See, e.g., Hernandez v. State, 861 S.W.2d 908, 909 (Tex. Crim. App. 1993) (noting that TEX. PENAL CODE § 22.011(a)(2) "makes no mention whatsoever of consent; thus consent (or nonconsent) is not an element in proving" sexual assault of a child).
So although the victim's "partial recantation" might have had some impact on Chamberlain's potential sentence, we think it would have had at most a minimal effect on Chamberlain's guilt-innocence decision-making. Chamberlain received a very favorable plea-bargain offer in the form of deferred adjudication on the second-degree-felony offense of indecency with a child. We think it highly unlikely, and Chamberlain has failed to persuade us otherwise, that he would have spurned that offer in favor of presenting the jury with an arguably irrelevant "partial recantation" and rolling the dice on a potential life sentence.
Cf. Hill, 474 U.S. at 59 ("Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the prejudice inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.") (internal quotation marks and citations omitted).
Having rejected the various bases upon which Chamberlain claims a due-process violation, we find that Chamberlain's conviction for second-degree-felony indecency by sexual contact does not offend due process. This claim is denied.
F. Appellate counsel performed effectively.
Finally, Chamberlain contends that appellate counsel was ineffective for failing to "argue effectively that [the judicial confession] was not offered, accepted, or judicially noticed by the trial court and thus . . . should not [have been] allowed on Appeal."
As we have already observed, and contrary to Chamberlain's assertion, appellate counsel made this very argument in his initial appellate brief, in a motion for rehearing before the court of appeals, and in a petition for discretionary review to this Court. Under these circumstances, we cannot say that counsel was deficient. This claim is denied.
III. CONCLUSION
Having reviewed all of Chamberlain's claims, we conclude that each of them lacks merit. Relief is denied. Delivered: April 3, 2019 Do Not Publish