Opinion
No. 05-11-00385-CR
04-05-2012
CHAN PARK, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM and Opinion Filed April 5, 2012
On Appeal from the 439th Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 2-10-571
MEMORANDUM OPINION
Before Justices O'Neill, Richter, and Francis
Opinion By Justice Francis
Chan Park waived a jury trial and entered an open plea of guilty to felony driving while intoxicated. The trial court found appellant guilty and sentenced him to three years in prison. In his sole issue, appellant contends his guilty plea was involuntary due to ineffective assistance of counsel. We affirm.
In September 2010, appellant was arrested for his third DWI offense in four years and was at the time on probation for DWI. His blood-alcohol content was .18. Appellant entered a guilty plea without the benefit of a plea bargain. The record shows that before he entered his plea, appellant was admonished both orally and in writing in accordance with article 26.13(a) of the Texas Code of Criminal Procedure. Appellant acknowledged his attorney explained the admonishments to him in English and also through a Korean interpreter. He testified he understood the admonishments and was “happy” with counsel's representation. Upon questioning by the trial court, appellant said he had discussed his case with his lawyer and wanted to waive his right to a jury trial and plead guilty. Further, he said he understood the punishment range for the offense was two to ten years in prison and up to a $10,000 fine and that he could also be placed on probation. He twice acknowledged that, by “going open,” he knew the entire range of punishment was “open” to the court. He said no one had threatened, coerced, or promised him anything in exchange for his guilty plea.
Appellant testified he ran the family's restaurant. Appellant said the business could not continue without him because his parents do not speak English. Also, he said their health was “not great.” He admitted he had “issues with drinking” and said he was willing to participate in out- patient treatment. Entering an in-patient facility was not an option because he said he needed to be available to run the family business. He asked the trial court to place him on probation.
On cross-examination, appellant acknowledged that he drove to the pre-sentence interview with the probation department on a suspended license, although he said he did not know at the time that his license was suspended. He also acknowledged he was first arrested for DWI in 2006 and completed his probation in that case in May 2008; seven months later, he was arrested on his second DWI and pleaded guilty to that offense in July 2010; and less than two months later, while on probation, he was arrested on the current DWI charge. In addition to appellant's testimony, both of his parents testified about their need for him in running the family business. After hearing the evidence, the trial court sentenced appellant to three years in prison.
Appellant filed a motion for new trial claiming he was denied effective assistance of counsel. Among other things, he complained his guilty plea was not knowing and voluntary because his trial counsel, Julie Fecht, promised he would receive probation if he pleaded guilty to the court. At the hearing on the motion, appellant testified Fecht told him he could “get probation for sure” if he pleaded guilty to the court. Without that assurance, he said he would not have entered an open plea of guilty. He said he did not know he could ask for a jury trial and said his counsel did not explain the details of an open plea to him. He did, however, acknowledge that he understood what it meant to plead guilty to DWI because he had done it before and he had also had a jury trial on a DWI. He testified that he looked over the admonishments document less than a minute and signed it because he “was told” he “had to.” Similarly, he said he answered “yes” to the trial court's questions because his attorney told him to answer “yes;” if she had not told him to do so, he said his answers would have been different.
Fecht testified she represented appellant and met with him several times before the plea hearing. Over the course of her representation of appellant, the State made three plea offers: the first was for two years in prison; the second was for six years' probation and he would attend SAFPF; and the third option was six years' probation and he would go to an inpatient facility of his choice. Fecht communicated the offers to appellant, who she said did not want inpatient treatment and wanted her to see if the State would accept probation with outpatient treatment. The State would not accept that offer, and Fecht said appellant was then “adamant” that he wanted to plead guilty “and take his chances with the Court in getting probation.”
On the day of the plea hearing, she said she again went over “in great detail” all of his rights with regard to a jury trial, the recommendations from the State, and the consequences of an open guilty plea. Additionally, she had a translator translate the written admonishments in Korean. She said appellant asked her if he “was going to jail,” and she responded that, in her opinion, “there was a strong possibility if he went open, that he was going to jail today.” Despite that advice, she said appellant remained “adamant about going open to the Court.” She denied ever leading appellant to believe that he would get a probated sentence; in fact, she said she told him he “most likely would get jail time.” At the conclusion of the evidence, the trial court said it was “hard to swallow” appellant's testimony and, noting several inconsistencies, said appellant's credibility was “absolutely zero.” The trial court denied the motion for new trial.
In his sole issue, appellant contends his guilty plea was not knowingly and voluntarily made because of ineffective assistance of counsel. He asserts that he believed, based on “erroneous, coercive, and misleading advice” of counsel, the trial court would grant him probation.
A defendant has a Sixth Amendment right to effective assistance of counsel in plea proceedings. U.S. Const. amend. VI; Ex parte Niswanger, 335 S.W.3d 611, 614 (Tex. Crim. App. 2011). A trial court should not accept a plea of guilty unless it appears the defendant is mentally competent and the plea is free and voluntary. See Tex. Code Crim. Proc. Ann. art. 26.13(b) (West Supp. 2011). A guilty plea is not considered knowing and voluntary if it is made because of ineffective assistance of counsel. Niswanger, 335 S.W.3d at 614-15.
We evaluate claims of ineffective assistance of counsel under the two-part test formulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), requiring a showing of both deficient performance and prejudice. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). An ineffective assistance claim must be “firmly founded in the record” and the record must affirmatively demonstrate the claim's merit. Id. In guilty-plea cases, the appellant must show (1) counsel's actions were outside the range of competence demanded of attorneys in criminal cases and (2) there is a reasonable probability that, but for counsel's errors, he would not have entered his plea and would have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Niswanger, 335 S.W.3d 611, 615 (Tex. Crim. App. 2011). The appellant has the burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Here, the record shows appellant was properly admonished both orally and in writing about the consequences of his open plea of guilty to the court. At the punishment hearing, he testified he understood the range of punishment for the offense and twice acknowledged that he understood the full range of punishment was available if he pleaded guilty without a plea bargain. He said no one threatened, coerced, or promised him anything in exchange for his guilty plea. Although he later testified at the new trial hearing that Fecht promised he would receive probation, Fecht disputed his claim. In fact, Fecht said she told appellant he would likely receive jail time, but appellant wanted to try his chances with the judge. The trial court determines credibility issues and specifically found appellant had “zero credibility.” Appellant has failed to establish that he was induced to plead guilty by counsel's promise that he would receive probation; consequently, we conclude appellant has failed to show that counsel's actions were outside the range of competence demanded of attorneys in criminal cases. We overrule the sole issue.
We affirm the trial court's judgment.
MOLLY FRANCIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110385F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
CHAN PARK, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00385-CR
Appeal from the 439th Judicial District Court of Rockwall County, Texas. (Tr.Ct.No. 2-10- 571).
Opinion delivered by Justice Francis, Justices O'Neill and Richter participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered April 5, 2012.
MOLLY FRANCIS
JUSTICE