Summary
noting that the Court of Criminal Appeals has acknowledged "a lack of clarity in the case law surrounding [its] treatment of 'improper enhancement' claims, as compared to 'illegal sentence' claims, and the circumstances under which such complaints must be preserved with a timely objection at trial"
Summary of this case from Pratt v. StateOpinion
WR-74 562-02
03-16-2022
EX PARTE RICHARD DOTSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1192825-B IN THE 177TH DISTRICT COURT FROM HARRIS COUNTY
Keller, P.J. filed a dissenting opinion joined by Yeary, Keel, and Slaughter, JJ. Slaughter, J. filed a dissenting opinion joined by Yeary, J.
OPINION
Per curiam.
Applicant was convicted of possession of a controlled substance and sentenced to eighteen years' imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Dobson v. State, No. 14-09-00213-CR (Tex. App.-Houston [14th Dist.] April 27, 2010)(not designated for publication). He filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant contends that appellate counsel was ineffective because she failed to raise an illegal sentence claim based on the improper use of enhancements. Based on the record, the trial court has determined that appellate counsel's performance was deficient and that Applicant was prejudiced.
Relief is granted. Smith v. Robbins, 528 U.S. 259 (2000); Ex parte Miller, 330 S.W.3d 610 (Tex. Crim. App. 2009). Applicant may file an out-of-time appeal of his conviction in cause number 1192825 from the 177th District Court of Harris County. Within ten days from the date of this Court's mandate, the trial court shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him on direct appeal. Should Applicant decide to appeal, he must file a written notice of appeal in the trial court within thirty days from the date of this Court's mandate.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and the Board of Pardons and Paroles.
Keller, P.J., filed a dissenting opinion in which Yeary, Keel, and Slaughter, jj., joined.
Even assuming that Applicant's conviction would have been reversed on appeal if appellate counsel had raised the claim that one of the prior convictions that was actually used was ineligible, I would hold that, under the Supreme Court's decision in Lockhart v. Fretwell, Applicant has suffered no prejudice because he has suffered no fundamental unfairness and giving him relief would result in a windfall.
506 U.S. 364 (1993).
In Fretwell, the defendant claimed that his trial counsel performed deficiently by failing to object to the use of a particular aggravating factor at the punishment stage of his death penalty trial. The federal court of appeals held that prejudice had been established because, even though that court had later overturned the judicial rule that prohibited use of that aggravating factor, the rule had not yet been overturned at the time of trial, and the trial court would have sustained the objection if it had been made. The Supreme Court reversed, holding that "focusing solely on mere outcome determination," in a prejudice analysis, "without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective." Under Strickland v. Washington, setting aside a sentence "solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him."
Id. at 367.
Id. at 368.
Id. at 369.
466 U.S. 668 (1984).
Fretwell, 506 U.S. at 369.
In Applicant's case, one of the prior convictions that was pled did not support the sentencing enhancement used at punishment, but Applicant had other prior convictions that would have supported that enhancement. For this reason, Ex parte Parrott bars Applicant from prevailing on a freestanding illegal-sentence claim on habeas corpus because the other prior convictions mean that Applicant suffered no harm, since his sentence was supported by his actual criminal history.Applicant also cannot prevail on a claim that trial counsel was ineffective because, had trial counsel pointed out that one of the convictions was ineligible, the State would have substituted an eligible conviction for the ineligible one that was used, and so Applicant suffered no prejudice, because the outcome of the sentencing proceeding would not have been different. Applicant seeks to avoid a no-prejudice finding by dismissing his claim of ineffective assistance of trial counsel and pleading his claim as one of ineffective assistance of appellate counsel. But his inability to show prejudice for a freestanding habeas claim or a trial-level ineffective-assistance claim points to the lack of fundamental unfairness with respect to the enhancement issue, however it is presented: because his actual criminal history supports the enhancement, any defect in pleading the enhancement is not prejudicial. Moreover, if appellate counsel had raised the issue on appeal and obtained a reversal, the only remedy would have been a new sentencing hearing at which the State could then offer the eligible prior convictions for enhancement, affording the exact same punishment range available at the original trial. There is no reason to think that his sentence in such a new sentencing proceeding-where the exact same level of enhancement and punishment range would be available -would be any different than the sentence he originally received.
396 S.W.3d 531, 536-37 (Tex. Crim. App. 2013).
See Pelache v. State, 324 S.W.3d 568, 576-78 (Tex. Crim. App. 2010) (notice of sentencing enhancement could be given at the sentencing stage of trial without violating due process).
See McNatt v. State, 188 S.W.3d 198, 203-04 (Tex. Crim. App. 2006) (reversal on the basis of untimely enhancement notice at initial trial does not preclude use of prior conviction for enhancement in new sentencing hearing).
As the Supreme Court said in Fretwell, "The result of the sentencing proceeding in the present case was neither unfair nor unreliable." Because Applicant's actual criminal history supports the enhancement that he was subjected to and the punishment range under which he was punished, he has suffered no fundamental unfairness. A new punishment hearing with the same punishment range would just be a second bite at the apple, and as such, a windfall. Consequently, under Fretwell, prejudice has not been shown.
Fretwell, 506 U.S. at 371. [1] The habeas record reflects that Applicant's attorney of record changed several times, but he has been represented by the Public Defender's Office since 2011.
I respectfully dissent.
DISSENTING OPINION
Slaughter, J., filed a dissenting opinion in which Yeary, J., joined.
More than ten years after he was convicted and sentenced for the instant drug offense, the Court grants Applicant a new direct appeal under the theory that his appellate counsel was ineffective for failing to challenge an improper sentencing enhancement. In his habeas pleadings, however, Applicant readily acknowledges that he had other prior criminal convictions that could have supported the enhancement in question. Further, the record suggests that Applicant did not raise any trial-level objection to the improper enhancement. Given the circumstances and the absence of precedent in 2009 clearly showing that such unpreserved complaint would have constituted reversible error had it been raised, Applicant has failed to show that his appellate counsel was unreasonable for failing to raise this issue on direct appeal. Therefore, I cannot agree with the Court's decision to grant relief on this basis. Alternatively, even assuming that Applicant's ineffective-assistance claim is meritorious, I would remand this case for consideration of laches in light of the significant delay in bringing this issue to the Court's attention. For these reasons, I respectfully dissent.
I. Background
In 2009, Applicant was tried by a jury for the state-jail felony offense of possession of less than a gram of cocaine, alleged to have occurred in November 2008. Tex. Health & Safety Code § 481.115(b) (West 2008). The State's indictment alleged two prior felonies for enhancement purposes under former Penal Code Section 12.42(a)(2): a 1992 conviction for burglary of a building, and a 1998 conviction for delivery of a controlled substance. Applicant pleaded true to the enhancements, which raised the range of punishment to that of a second-degree felony, and he was therefore sentenced to eighteen years' imprisonment. See Tex. Penal Code § 12.42(a)(2) (West 2008) (making state-jail felony punishable as second-degree felony upon showing that defendant has two prior "felony" convictions). However, the latter conviction for delivery of a controlled substance was in fact a state-jail felony. Although punishment for that offense had been enhanced to a felony range based on other prior convictions, pursuant to this Court's precedent, the offense remained classified as a state-jail felony for future enhancement purposes. See Campbell v. State, 49 S.W.3d 874, 878 (Tex. Crim. App. 2001). Thus, it was unavailable to use as a "felony" to enhance Applicant's delivery offense under former Section 12.42(a)(2).
Following Applicant's conviction, on direct appeal, appellate counsel did not raise any point of error addressing the improper enhancement, instead raising only a claim of evidentiary insufficiency. The court of appeals rejected this argument and affirmed Applicant's conviction and sentence. Dotson v. State, No. 14-09-00213-CR, 2010 WL 1661930 (Tex. App.-Houston [14th Dist.] April 27, 2010).
In 2010, Applicant filed a pro se post-conviction habeas application challenging his conviction. This original filing did not raise the current claim of ineffective assistance of appellate counsel, instead raising several record-based claims and claims of ineffective assistance of trial counsel. None of Applicant's claims raised in his original pro se application addressed the unlawful enhancement.
Applicant was initially appointed counsel for his habeas application, but that counsel withdrew and, in 2011, the Harris County Public Defender's Office was appointed to represent Applicant in these habeas proceedings. In September 2012, the habeas court signed findings of fact and conclusions of law recommending that relief be denied on Applicant's original claims. However, the Public Defender's Office then filed an unopposed motion to rescind those findings so that it could complete its investigation of Applicant's case. The habeas court agreed and rescinded its findings. It is unclear what, if anything, transpired with the application during the following nine years, during which time the application remained pending. In April 2021, the State filed new proposed findings of fact and conclusions of law. In those findings, it noted that the Public Defender's Office had not amended the application since being appointed to represent Applicant in 2011. The trial court signed those findings recommending that relief be denied. The case was then transmitted to this Court.
On June 15, 2021, habeas counsel filed in the trial court an amended application raising additional claims of ineffective assistance of trial and appellate counsel. Specifically, counsel alleged that trial counsel was ineffective for failing to object to the improper enhancement and that appellate counsel was similarly ineffective for failing to challenge the improper enhancement on appeal. Habeas counsel also filed in this Court a motion to remand "to resolve additional ground[s] for relief." We remanded the application to the habeas court for additional fact-finding on Applicant's newly-raised claims.
Following remand, Applicant abandoned his ineffective-assistance-of-trial-counsel claim and proceeded only on his ineffective-assistance-of-appellate-counsel claim. The habeas court adopted Applicant's proposed findings and conclusions recommending that relief be granted in the form of an out-of-time appeal. This Court now follows that recommendation, finding that Applicant's appellate counsel rendered constitutionally ineffective assistance by failing to raise the improper enhancement on direct appeal.
II. Applicant's Ineffective-Assistance Claim Lacks Merit
In his application, Applicant candidly acknowledges that he had other prior felony convictions that could have supported enhancement under former Section 12.42(a)(2). Therefore, he is precluded by this Court's holding in Ex parte Parrott from receiving relief on a freestanding illegal-sentence claim in this habeas proceeding. See 396 S.W.3d 531, 535-37 (Tex. Crim. App. 2013) (holding that habeas applicant raising illegal sentence/improper enhancement claim must establish harm, and he cannot do so if enhanced punishment range was otherwise "supported by his actual criminal history"). Applicant has also abandoned his ineffective-assistance-of-trial-counsel claim, presumably because he recognizes that, if trial counsel had raised a timely objection to the improper enhancement in the trial court, the State would have simply substituted one of Applicant's other prior felony convictions for the objectionable state-jail felony, thereby avoiding the problem entirely. Thus, Applicant can only complain that his appellate counsel was ineffective for failing to challenge the improper enhancement on direct appeal.
But given the state of the law at the time of Applicant's direct appeal over a decade ago, it does not appear to be so clear-cut that this unpreserved complaint would have been meritorious had it been raised. To prevail on an ineffective-assistance-of-appellate-counsel claim, it must be shown that "(1) counsel's decision not to raise a particular point of error was objectively unreasonable, and (2) there is a reasonable probability that, but for counsel's failure to raise that particular issue, [the applicant] would have prevailed on appeal." Ex parte Miller, 330 S.W.3d 610, 623 (Tex. Crim. App. 2009). Thus, generally speaking, "if appellate counsel fails to raise a claim that has indisputable merit under well-settled law and would necessarily result in reversible error, appellate counsel is ineffective for failing to raise it." Id. at 624. Here, however, the claim in question was not indisputably meritorious. Given the lack of any trial objection to the improper enhancement, it is possible that an appellate court would have held such claim to be unpreserved and rejected it on that basis.
In a recent decision, we acknowledged a lack of clarity in the case law surrounding our treatment of "improper enhancement" claims, as compared to "illegal sentence" claims, and the circumstances under which such complaints must be preserved with a timely objection at trial. See Ex parte Hill, 632 S.W.3d 547, 554-56 (Tex. Crim. App. 2021) (reviewing caselaw from 1981 to 2018 and observing that, while "improper enhancement" claims must be preserved at trial, "illegal sentence" claims based on improper enhancement need not be preserved with an objection in the trial court). In Hill, this Court considered a situation where a defendant's sentencing enhancements were proper as of the time of trial, but one of the enhancing convictions was later vacated on habeas review because of an involuntary plea. Id. at 550. We filed and set the case, in part, to decide whether "Applicant forfeited his illegal-sentence claims when he failed to object at trial[.]" Id. at 554. We recognized that to resolve this issue, we must "first review two different, but closely related, lines of cases" addressing illegal-sentence claims based on invalid enhancements, as compared to invalid-enhancement claims. Id. Reviewing the Court's caselaw in this area, we observed that we had allowed defendants to raise unpreserved illegal-sentence claims on post-conviction review, but in many such cases the defect in the enhancing conviction had not been apparent at the time of trial or on appeal. Id. at 554-55 (discussing Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006)). By contrast, we had required a trial objection to preserve ordinary "improper enhancement" claims. Id. at 555-56 (discussing Hill v. State, 633 S.W.2d 520 (Tex. Crim. App. 1981), and Ex parte Patterson, 969 S.W.2d 16 (Tex. Crim. App. 1998)). In attempting to harmonize these principles, we concluded that applicant Hill could raise his illegal-sentence claim based on an improper enhancement on habeas, notwithstanding the lack of a trial objection. Id. at 556. But in doing so, we declined to overrule our Hill/improper enhancement line of cases. We also noted that, unlike the present case, the illegality of applicant Hill's sentence "was not ascertainable from the appellate record, becoming apparent only years later when this Court overturned his enhancement conviction on involuntary-plea grounds[.]" Id.
What is clear enough from our discussion in Hill is that, as recently as last year, there remained a lack of clarity in the caselaw with respect to the circumstances under which a trial-level objection would be required to preserve an improper-enhancement claim. The very fact that it was necessary to file and set the case on that issue in 2021 demonstrates that the law was unsettled as to that question at the time of Applicant's direct appeal in 2009. Further, unlike the situation in Hill where the problem with the enhancement was not apparent at trial or from the face of the appellate record, the problem with the enhancement in this case was present at trial and could have been objected to by trial counsel. Had counsel timely objected, the State could have likely substituted one of Applicant's other convictions for the problematic enhancement, thereby avoiding the error entirely. Given these circumstances and the fact that Applicant's criminal history actually supports enhancement here, I cannot fault appellate counsel for possibly viewing the error in question as a mere improper-enhancement claim subject to forfeiture, and not a true "illegal sentence" claim that could be raised for the first time on appeal in the absence of a trial objection. In short, counsel was not unreasonable for failing to raise this unpreserved point of error when the law was unsettled with respect to whether such point of error would have been meritorious. Ex parte Chandler, 182 S.W.3d 350, 359 (Tex. Crim. App. 2005) ("counsel's performance will be measured against the state of the law in effect during the time of trial and we will not find counsel ineffective where the claimed error is based upon unsettled law") (internal citation and quotations omitted). To the extent that the law has subsequently become clearer in the last decade with respect to the ability of litigants to obtain relief on these types of claims in the absence of a trial objection, that fact should not obscure the reasonableness of counsel's conduct in 2009. Id. (noting that "a bar card does not come with a crystal ball attached"). Therefore, based on the state of the law at the time and the circumstances of Applicant's case, I cannot agree that Applicant has established his appellate counsel performed deficiently for failing to raise this unpreserved complaint.
III. Laches
As a separate consideration, even assuming for the sake of argument that Applicant has raised a meritorious ineffective-assistance claim, I would remand this case to the habeas court for the parties to address whether Applicant's claim should be barred by laches.
The record in this case shows that Applicant filed his pro se habeas application more than a decade ago, in 2010. Notably, the original pro se pleadings did not include the instant ineffective-assistance-of-appellate-counsel claim on which the Court today grants relief. The record further shows that Applicant was appointed counsel shortly after he filed the application. Although counsel of record has changed several times, the office currently representing him, the Harris County Public Defender's Office, has been representing Applicant for over a decade, since 2011. Habeas counsel did not amend the application to include the present IAC-appellate counsel claim until June 2021.
The record contains no explanation for why habeas counsel did not bring the amended application until ten years after his office was appointed to represent Applicant. Nor is there any explanation for what was happening with the application while it remained pending for ten years in the trial court. In my view, this situation presumptively raises the issue of laches based on habeas counsel's apparent delay in filing the amendment, and the Court should not grant relief without addressing it. See Hill, 632 S.W.3d at 551 ("The purpose of the laches doctrine is 'to consider whether an applicant has slept on his rights and, if he has, how that has affected the State, and whether, in light of the delay, it is fair and just to grant him relief.'") (quoting Ex parte Perez, 398 S.W.3d 206, 218-19 (Tex. Crim. App. 2013)). Because the issue of laches has not yet been developed in the trial court, remand is appropriate to address that issue before the Court decides to grant relief.
IV. Conclusion
Given the lack of clarity in the law with respect to whether Applicant's unpreserved improper enhancement claim would have resulted in reversal on direct appeal, I conclude that Applicant has failed to establish his claim of ineffective assistance of appellate counsel. Applicant's claim essentially amounts to an attempt to circumvent this Court's holding in Parrott by reframing his complaint as one of ineffective assistance of appellate counsel. The Court should not permit relief under these circumstances unless Applicant clearly meets the requirements for establishing this claim, which he does not. Accordingly, I would deny relief on this basis. Alternatively, even assuming that Applicant's ineffective-assistance claim has merit, the Court should remand for an evaluation of laches before granting relief on this claim. For the foregoing reasons, I respectfully dissent.