Opinion
14-23-00654-CR
10-10-2024
SARALYN ANN PROSCHKO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 155th District Court Austin County, Texas Trial Court Cause No. 2018R-0008
Panel consists of Jewell, Bourliot, and Wilson, Justices.
ABATEMENT ORDER
PER CURIAM
Appellant Saralyn Ann Proschko pled "guilty" and was convicted of the felony offense of aggravated sexual assault of a child under six years of age. On appeal, appellant asserts in a single issue that she received ineffective assistance of counsel because her trial counsel allowed and advised her to withdraw her speedy trial complaints after four years had elapsed between the time she filed her original speedy trial motion and the time she withdrew it.
The State has argued on appeal that this court should dismiss this appeal and that appellant waived her right to appeal as to all speedy-trial related complaints. In its certification under Texas Rule of Appellate Procedure 25.2(a)(2), the trial court added handwritten text to the pre-printed form and certified that this case "[i]s a plea bargain case, and the defendant has NO right of appeal as to guilt/innocence conviction [sic]. The defendant retains the right to appeal as to sentencing." Thus, the trial court certified that appellant has no right of appeal as to guilt/innocence but that appellant has the right of appeal as to punishment.
This court has an obligation to review the record and determine whether the trial court's Rule 25.2(a)(2) certification is defective. See Jones v. State, 488 S.W.3d 801, 805 (Tex. Crim. App. 2016). Even though a certification may be correct in form, if the certification is contrary to the appellate record, the certification is defective. See id.; Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005). Thus, we must review the appellate record and determine whether the trial court's Rule 25.2(a)(2) certification is contrary to the record and thus defective. See Jones, 488 S.W.3d at 805.
Appellant pled "guilty" in June 2016 to a federal charge of aiding and abetting the sexual exploitation of a child and received a twenty-four-year sentence. Appellant pled "guilty" in 2017 to a state charge of injury to a child with a deadly weapon in Goliad County, Texas, and she received a forty-year sentence. In Victoria County, appellant was also charged by indictment with possession of child pornography and sexual performance of a child (the "Victoria County Case"). In January 2018, appellant was charged by indictment with aggravated sexual assault of a child under six years of age in Austin County, Texas ("Austin County Case").
On May 16, 2023, appellant, acting pro se, filed a motion in the Austin County Case to dismiss for lack of prosecution and a "Motion for Speedy Trial and/or Speedy Disposition of Pending Warrant(s), Information, Detainer, Indictment of Complaints." Although the second motion was dated February 15, 2019, the record reflects that it was not filed with the trial court below until May 16, 2023. Appellant was transferred from federal prison to Austin County, and on May 30, 2023, the trial court appointed an attorney to represent appellant.
After appellant's counsel reviewed the State's discovery and consulted with appellant, appellant decided to withdraw her pro se motion to dismiss, plead guilty to aggravated sexual assault of a child under six years of age in the Austin County Case, waive her right to a jury trial, and have the trial court assess punishment after considering the full range of punishment for that offense. Appellant and the State agreed that (1) appellant would admit her guilt as to the offenses charged in the Victoria County Case; (2) the offenses charged in the Victoria County Case would be considered by the trial court in assessing punishment for the aggravated sexual assault, and (3) the charges in the Victoria County Case would be dismissed and the State would be barred from prosecuting these charges against appellant. Appellant and the State signed an agreement in this regard, and the trial court signed an order that the Victoria County Case would be taken into account in assessing punishment for the aggravated sexual assault and that the State would be barred from prosecuting appellant in the Victoria County Case. Appellant signed a "Waiver of Jury Trial (Guilty Plea)" in which appellant stated that she was pleading guilty to aggravated sexual assault of a child under six years of age and waiving her right to a jury trial. The only language in this document regarding an express waiver of the right to appeal was stricken in the following sentence: "Defendant further waives all right to appeal and expressly waives all speedy trial related post conviction complaints." After hearing evidence and argument at the punishment hearing, the trial court assessed punishment at life without parole and a $10,000 fine.
As used in Texas Rule of Appellate Procedure 25.2, a "plea bargain case" is "a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant." Tex.R.App.P. 25.2(a)(2); See Jones, 488 S.W.3d at 808. The two basic kinds of plea-bargaining in the United States are charge-bargaining and sentence-bargaining. Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003). Charge-bargaining involves questions of whether a defendant will plead guilty to the offense that has been alleged or to a lesser or related offense, and of whether the prosecutor will dismiss, or refrain from bringing, other charges. Id. Sentence-bargaining may be for binding or non-binding recommendations to the court on sentences, including a recommended "cap" on sentencing and a recommendation for deferred-adjudication probation. Id. The Court of Criminal Appeals has held that cases involving charge-bargaining and cases involving sentence-bargaining are both plea bargain cases under Texas Rule of Appellate Procedure 25.2. See Tex. R. App. P. 25.2(a)(2); Kennedy v. State, 297 S.W.3d 338, 340-42 (Tex. Crim. App. 2009); Shankle, 119 S.W.3d at 810- 14.
In Shankle, the Court of Criminal Appeals interpreted the meaning of Rule 25.2(a)(2)'s text "punishment recommended by the prosecutor and agreed to by the defendant." See Shankle, 119 S.W.3d at 812-14. In that case, Shankle was charged with aggravated sexual assault of a child and burglary of a habitation. See id. at 809. The State filed a plea disclosure in the sexual assault case, which stated that, in exchange for Shankle's guilty plea, the State would not prosecute Shankle for burglary of a habitation. See id. The disclosure also stated that trial court would assess punishment for the aggravated sexual assault offense, and the trial court was allowed to consider the full range of punishment as to this offense. See id. Shankle pled guilty to the aggravated sexual assault offense and, at the same time, admitted that he committed the burglary of a habitation offense. See Tex. Penal Code §12.45; Shankle, 119 S.W.3d at 809. At the punishment hearing the trial court stated that it would take the burglary offense into account in assessing punishment in the aggravated sexual assault case, and that further prosecution for the burglary case would be barred. See Tex. Penal Code §12.45(a),(c); Shankle, 119 S.W.3d at 809-10. The trial court assessed punishment for the aggravated sexual assault case at forty years' confinement. See Shankle, 119 S.W.3d at 810. Shankle appealed, contending that the trial judge erred by failing to admonish him that he would be required to register as a sex offender. See id.
The Third Court of Appeals held that Shankle's notice of appeal invoked its jurisdiction and that the trial court's failure to admonish Shankle about registering as a sex offender was reversible error. The Court of Criminal Appeals granted review of both of the court of appeals's holdings. In reviewing the court of appeals's first holding under Rule 25.2(a)(2), the high court made the following inquiry: "The prosecutor and [Shankle] entered into a plea-bargain agreement, but was it an agreement by which the prosecutor recommended, and [Shankle] agreed to, 'punishment'?" See id. at 812-13. The Shankle court held that "charge-bargaining affects punishment." See id. at 813. The Shankle court concluded that "[a]n agreement to dismiss a pending charge, or not to bring an available charge, effectively puts a cap on punishment at the maximum sentence for the charge that is not dismissed." Id. The Shankle court held that Shankle had no right of appeal under Texas Rule of Appellate Procedure 25.2(a) because appellant pled "guilty" and "the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant." Tex.R.App.P. 25.2(a)(2); Shankle, 119 S.W.3d at 814. The high court determined that the court of appeals erred when it addressed Shankle's sex-offender admonishment complaint on appeal because Shankle had no right of appeal under Rule 25.2(a)(2). See Shankle, 119 S.W.3d at 814. Therefore, the Shankle court vacated the court of appeals's judgment and dismissed Shankle's appeal. See id.
Under binding precedent from the Court of Criminal Appeals, in today's case, the State and appellant entered into a charge bargain, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by appellant. See Kennedy, 297 S.W.3d at 340-42; Shankle, 119 S.W.3d at 810-14. Appellant pled "guilty" to aggravated sexual assault. Therefore, today's case is a "plea bargain case" under Rule 25.2(a). See Tex. R. App. P. 25.2(a)(2); Kennedy, 297 S.W.3d at 340-42; Shankle, 119 S.W.3d at 810-14.
Rule 25.2(a) provides that "[i]n a plea bargain case . . . a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, (B) after getting the trial court's permission to appeal, or (C) where the specific appeal is expressly authorized by statute. Tex.R.App.P. 25.2(a)(2). The Court of Criminal Appeals has held that these three situations are exclusive and that in any other situation, no appeal is authorized, even when appellant challenges jurisdiction, the voluntariness of the guilty plea, or the effective assistance of appellant's counsel. See Ex parte Castillo, 664 S.W.3d 833, 834 (Tex. Crim. App. 2022); Griffin v. State, 145 S.W.3d 645, 648-49 (Tex. Crim. App. 2004); Woods v. State, 108 S.W.3d 314, 316 (Tex. Crim. App. 2003). Appellant does not seek to appeal a matter that was raised by written motion filed and ruled on before trial, and the trial court has not given appellant permission to appeal. The parties have not cited and we are not aware of a statute that expressly authorizes this specific appeal. Therefore, appellant has no right of appeal, and appellant may not appeal as to guilt/innocence or as to punishment or sentencing. See Tex. R. App. P. 25.2(a)(2); Ex parte Castillo, 664 S.W.3d at 834; Griffin, 145 S.W.3d at 648-49; Shankle, 119 S.W.3d at 810-14; Woods, 108 S.W.3d at 316.
The trial court's certification, under Texas Rule of Appellate Procedure 25.2(d), of appellant's right of appeal provides that this case "[i]s a plea bargain case, and the defendant has NO right of appeal as to guilt/innocence conviction [sic]. The defendant retains the right to appeal as to sentencing." The record shows that this case is a plea bargain case, and appellant has no right of appeal. Therefore, the certification contradicts the appellate record and so the law deems it defective. See Simon v. State, 554 S.W.3d 257, 262-63 (Tex. App.-Houston [14th Dist.] 2018, no pet.); Jenkins v. State, 495 S.W.3d 347, 352 (Tex. App.-Houston [14th Dist.] 2016, no pet.). Therefore, we ORDER the appeal ABATED, and we ORDER the trial court to file an amended Rule 25.2(a)(2) certification consistent with our determinations in this Abatement Order. The trial court's amended certification shall be included in a supplemental clerk's record and transmitted to this court no later than October 25, 2024. The appeal will be reinstated when the supplemental clerk's record has been filed. This court may reinstate the appeal on the motion of any party or on its own motion.