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holding that defendant was not prejudiced by defense counsel's incorrect statement of minimum sentence when defendant admitted trial court informed him of correct minimum sentence
Summary of this case from Brown v. StateOpinion
Nos. 05-08-00455-CR, 05-08-00456-CR, 05-08-00457-CR
Opinion issued June 3, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause Nos. F06-21428-Y; F06-21429-Y; and F06-21430-Y.
Before Justices RICHTER, FRANCIS, and LANG-MIERS.
OPINION
Kareem Jabbar Scott entered non-negotiated pleas of guilty to evading arrest, robbery, and burglary, and the trial court found appellant guilty and assessed punishment in each case at thirty years in prison, to run concurrently. In seventeen issues, appellant challenges his convictions, arguing that, in the evading arrest case, he was improperly admonished on the punishment range and was sentenced outside the range allowed by law for that offense, and that trial counsel provided ineffective assistance in all three cases. For the reasons set out below, we reverse the judgment in the evading arrest case, appellate Cause No. 05-08-00456-CR (trial number F06-21429-Y), and remand for further proceedings. We affirm the trial court's judgments in the robbery and burglary cases, appellate Cause Nos. 05-08-00455-CR and 05-08-00457-CR (trial cause numbers F06-21428-Y and F06-21430-Y). Evidence at the plea hearing showed that Dallas police received a call from a woman who reported she had been robbed in the driveway of her house. She said the man took an air compressor while threatening to kill her. She gave a description of the suspect and the license plate number of his vehicle. Shortly thereafter, the police received a second call from the same neighborhood, and the caller reported that his lawn mower had been stolen. An officer headed to the neighborhood and saw the suspect vehicle stopped at a light. As the officer began making a U-turn, the driver of the vehicle ran the red light and fled at about 50 mph. The driver turned into an apartment complex, jumped out of the car, and fled on foot, ignoring the officer's order to stop. The officer fired at the man with a pepper ball rifle, hitting him in the back and buttocks, but the man was able to escape. Appellant was subsequently indicted on charges of second-degree robbery, second-degree burglary, and third-degree evading arrest, with the robbery and burglary indictments also containing one enhancement paragraph. On the day the cases were set for a bench trial, appellant entered non-negotiated pleas of guilty to the indictments and signed judicial confessions tracking the language of the indictments. In plea papers, signed by appellant, his attorney, the prosecutor, and the trial judge, appellant was admonished that the evading arrest charge was a state jail felony punishable by 18 months to two years in state jail and up to a $10,000 fine. During questioning by the trial judge at the plea hearing, appellant acknowledged that he was a citizen of the United States, he wanted to give up his right to a jury trial, was doing so knowingly and voluntarily, and no one had forced him to plead guilty. The trial court then admonished appellant that he was charged with burglary of a habitation, a second-degree felony offense; evading arrest, "which is a state jail felony offense;" and robbery, a second-degree felony offense. The trial judge asked appellant if that was his "understanding" of what he was "charged with," and appellant replied, "Yes, sir." The judge correctly admonished appellant regarding the punishment ranges for the second-degree felonies with an enhancement paragraph. The judge then asked the penalty range for the evading arrest offense, and the prosecutor replied, "It's a state jail felony." The trial judge admonished appellant that the penalty range was 180 days to two years in state jail and up to a $10,000 fine and then asked appellant, "Knowing that I have to sentence you within that range, do you still wish to plead guilty?" Appellant asked the judge to "say that again," and the judge repeated the punishment ranges and asked if appellant still wanted to plead guilty. Appellant said he did. The trial judge accepted appellant's pleas of guilty and plea of true to the enhancement paragraphs and found him guilty. After hearing evidence from the robbery victim, the police officer, and appellant, the judge orally pronounced sentence at thirty years in prison "in each of the three cases" and ordered the sentences to run concurrently. The written judgment for evading arrest, however, designated the offense as a third-degree felony and assessed punishment at two years in the institutional division, TDCJ, but ordered appellant delivered to the "Director, State Jail Division, TDCJ." In his first twelve issues, appellant challenges his evading arrest conviction on various grounds relating to the punishment assessed, the punishment admonishment given, and the adequacy of trial counsel's representation. Because the fourth issue is dispositive, we begin with it. In his fourth issue, appellant contends he is entitled to a new trial because the trial court violated its statutory duty to properly admonish him regarding the grade of offense and range of punishment for evading arrest, rendering his plea involuntary. Initially, we note the State concedes that the oral pronouncement of sentence controls over the written judgment, see Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App. 1998), and that the thirty-year sentence orally pronounced is outside the lawful range for evading arrest in this case. The State, however, asserts the proper disposition in this case is to remand for a new punishment hearing only, not a new trial. Given the record in this case, we cannot agree. A guilty plea is generally considered voluntary if the defendant was made fully aware of the direct consequences of the plea. See State v. Jiminez, 987 S.W.2d 886, 888 (Tex.Crim.App. 1999). Article 26.13 of the Texas Code of Criminal Procedure requires that prior to accepting a guilty plea, a trial court must admonish the defendant of the consequences of his plea. Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon 2009). The range of punishment is included within those admonishments that must be given. Id. In admonishing a defendant, substantial compliance by the trial court is deemed sufficient unless the defendant was not aware of the consequences of his plea and was misled or harmed by the admonishment. Id. at 26.13(c); Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998) (per curiam). Whether the given admonishments are in substantial compliance with the required warnings is an issue that should be considered when the trial court addressed the admonishment in some form or fashion. Martinez, 981 S.W.2d at 197. When a record shows the trial court delivered an incorrect admonishment regarding the range of punishment, and the actual sentence lies within both the actual and misstated maximum, substantial compliance is attained. Id. The admonishment does not substantially comply when the defendant receives a greater sentence than the court informed the defendant was possible for the charged offense, see Weekley v. State, 594 S.W.2d 96 (Tex.Crim.App. [Panel Op.] 1980) or when the sentence actually imposed is outside the range allowed by the statute. Hodges v. State, 604 S.W.2d 152 (Tex.Crim.App. [Panel Op.] 1980). Here, appellant pleaded guilty to the indictment, which alleged appellant, using a vehicle and having been previously convicted of evading arrest, fled from a police officer who was attempting to arrest or detain him. The use of a motor vehicle and a previous conviction are both elements that define the crime of evading arrest as a third-degree felony. See Tex. Penal Code Ann. § 38.04(b)(2)(A) (Vernon 2003); Calton v. State, 176 S.W.3d 231, 234 (Tex.Crim.App. 2005). A third-degree felony is punishable by two to ten years in prison and up to a $10,000 fine. Tex. Penal Code Ann. § 12.35 (Vernon Supp. 2008). However, appellant was admonished orally and in writing that the offense was a state jail felony, carrying a maximum penalty of two years in state jail. Evading arrest is a state jail felony offense if the person uses a vehicle while in flight and the person has not been previously convicted of evading arrest. See Tex. Penal Code Ann. § 38.04(b)(1) (Vernon 2003). Although the trial judge admonished appellant of the punishment range for a state jail felony, he orally pronounced sentence at thirty years in prison. Because appellant's thirty-year sentence does not lie within either the actual or misstated maximum of either a state jail or third-degree felony offense, we cannot conclude the trial court substantially complied with the statute. When a trial court fails to substantially comply with the requirements of article 26.13, we must decide whether the error affected substantial rights. VanNortrick v. State, 227 S.W.3d 706, 708-09 (Tex.Crim.App. 2007). We conduct an independent examination of the record as a whole. Id. There is no burden on either party to prove harm or harmlessness from the error. Id. We look for indications that the defendant "was misled or harmed by the trial court's failure to admonish him." Id. (quoting Burnett v. State, 88 S.W.3d 633, 638 (Tex.Crim.App. 2002)). The critical question is, "[C]onsidering the record as a whole, do we have a fair assurance that the defendant's decision to plead guilty would not have changed had the court admonished him?" Id. (quoting Anderson v. State, 182 S.W.3d 914, 919 (Tex.Crim.App. 2006)). A critical direct consequence of a guilty plea is the maximum punishment that can be assessed for the offense to which the defendant proposes to plead guilty. Burnett, 88 S.W.3d at 637. Having reviewed the record in this case, we do not have a fair assurance that appellant's decision to plead guilty would not have changed had the court properly admonished him. As evidenced by the plea papers and the hearing on the plea, the record affirmatively shows that appellant, the trial judge, the prosecutor, and the defense counsel proceeded in this case as if the charge was a state jail felony with a maximum two-year sentence. Nevertheless, the trial judge orally sentenced appellant to thirty years in prison and then signed a written judgment designating the offense as a third-degree felony but ordered appellant delivered to the director of the state jail division. Moreover, the trial court's docket sheet noted that appellant was sentenced to two years in the "state jail institutional division." Given the inconsistencies in the record in this case, we cannot say with any certainty whether the trial court convicted appellant of the third-degree felony offense alleged in the indictment or whether he convicted him of a reduced state-jail felony charge. The only thing that is clear is appellant pleaded guilty to what he was told was a state jail felony, judicially confessed to acts that tracked the language of the indictment alleging a third-degree felony, and was sentenced as though the charge was a first-degree felony. The State fails to address these contradictions but suggests that appellant has not been harmed because he would have pleaded guilty, regardless of the grade of offense or potential punishment, given that he faced two other more severe felonies. The State's argument, however, misses the point. At a minimum, appellant was entitled to know the grade of offense and punishment range he was facing and was entitled to be punished within the range for that offense. Without knowing the grade of offense for which he was pleading guilty and for which he would face punishment, appellant could not understand the direct consequences of his plea and, in particular, the benefits, if any, to pleading guilty to a state jail felony that would not accrue to a third-degree felony. Accordingly, we sustain appellant's fourth issue, reverse the trial court's judgment on the evading arrest offense, and remand for further proceedings consistent with the opinion. Our disposition of this issue makes it unnecessary to address issues one, two, three, and five through twelve. See Tex. R. App. P. 47.1. All of appellant's remaining issues complain of ineffective assistance of counsel in the proceedings below. In issues thirteen through sixteen, appellant argues he is entitled to a new trial in the robbery case because his attorney provided ineffective assistance of counsel. In particular, he contends his attorney was ineffective when he (1) counseled him to plead guilty when appellant disputed whether he threatened or placed the complaining witness in fear of imminent bodily injury or death and did not take action to allow him to withdraw his plea; (2) mischaracterized appellant's testimony as admitting he threatened or placed the complaining witness in fear of imminent bodily injury or death; and (3) invited the trial court to impose a minimum term of confinement of twenty-five years. In his seventeenth issue, he argues counsel provided ineffective assistance in the burglary case by inviting the trial court to impose a minimum term of confinement of twenty-five years. Ineffective assistance of counsel claims are evaluated 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). A Strickland claim must be "firmly founded in the record" and the "record must affirmatively demonstrate" the meritorious nature of the claim. Id. For this reason, direct appeal is usually an inadequate vehicle for raising ineffective assistance claims. Id. This is true with regard to the question of deficient performance — in which counsel's conduct is reviewed with great deference, without the distorting effects of hindsight — where counsel's reasons for failing to do something do not appear in the record. Id. Trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective. Id. Absent such an opportunity, we will not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Id. In these cases, appellant filed a motion for new trial but did not raise ineffective assistance of counsel; thus, nothing in the record explains why trial counsel took or did not take certain actions in this case. In particular, no evidence shows appellant's trial attorney counseled appellant to plead guilty when appellant disputed whether he threatened or placed the robbery complainant in fear of imminent bodily injury or death. Nothing in the record suggests what appellant told his attorney about this offense before he testified. Indeed, appellant testified at the plea hearing that trial counsel was handling the case exactly as he wanted him to do, he was pleading guilty voluntarily, and no one forced him to enter the plea. Additionally, appellant acknowledged that during plea negotiations, the State recommended a twenty-five-year sentence, but he did not want to accept the offer and went forward on an open plea. Moreover, Michelle Poe testified at the plea hearing that she saw appellant stealing her grandparents' air compressor and ran outside and confronted him. Poe said appellant initially did not respond, but then threatened to kill her. Poe said she continued to argue with appellant and he pushed her out of the way and got into his truck. Poe said she ran to the truck, and appellant "reached beside him and told me he had something for me." Poe said she "backed off" and let him go. When appellant testified, the record suggests he wanted to minimize his actions and let the judge know "it wasn't as bad as she made it sound." Appellant testified he did not threaten to kill Poe, but he did say that after she followed him to his truck, Poe "was scared and ran back in and called the police." Given the record before us, we cannot say appellant has shown ineffective assistance of counsel. Even if we construe appellant's testimony a protestation of innocence, all sorts of considerations may motivate a guilty plea. See Mallett v. State, 65 S.W.3d 59, 64 (Tex.Crim.App. 2001). Speculation on counsel's strategy with regard to this issue, as well as how defense counsel characterized the evidence, is immaterial to our determination that counsel has not been shown ineffective. See id. Finally, appellant contends trial counsel invited the judge to sentence him to a minimum of twenty-five years in both the robbery and burglary cases. Having reviewed the record, we cannot agree. During argument on punishment, appellant's trial counsel asked the judge to place appellant on probation with drug treatment; he did not ask or invite the judge to sentence appellant to a minimum twenty-five-year sentence. We acknowledge that during questioning of appellant, defense counsel twice suggested that the minimum sentence in the case was twenty-five years. While the suggestion was incorrect, we note that appellant was correctly admonished orally and in writing by the trial judge as to the range of punishment; thus, the judge was aware of the punishment range and the minimum sentence in these cases. We conclude appellant has not shown counsel was ineffective with respect to his specific complaints and also reject his contention that the combined effect of the deficiencies entitle him to a new trial. We overrule issues thirteen, fourteen, fifteen, sixteen, and seventeen. We affirm the trial court's judgment.