Solis, Raymundo AKA Chico Solis v. State

NUMBER 13-98-544-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ____________________________________________________________________ RAYMUNDO S. SOLIS, Appellant, v. THE STATE OF TEXAS, Appellee. ____________________________________________________________________ On appeal from the 36th District Court of Aransas County, Texas. ____________________________________________________________________ O P I N I O N Before Justices Hinojosa, Yañez, and Rodriguez Opinion by Justice Yañez Appellant, Raymundo S. Solis, pleaded guilty on an open plea to the felony offense of indecency with a child,(1) and the trial court assessed punishment at sixteen years confinement. By two issues, appellant contends: (1) the trial court's denial of his motion for new trial deprived him of due process because the court refused to accept a plea agreement on the day of trial, forcing him to choose between entering an open plea of guilty and proceeding to trial with an unprepared counsel; and (2) he was denied effective assistance of counsel. We reverse and remand for a new trial. Background On June 5, 1998, appellant was arrested for indecency with a child, arising out of an incident with his seven-year-old god-child on May 16, 1998.(2) According to an affidavit by appellant's trial counsel, Mark DiCarlo, on July 30, 1998, the State offered appellant a plea agreement for an eight-year sentence, which appellant accepted on July 31, 1998. On August 3, 1998, the day the case was set for trial, DiCarlo appeared at the Aransas County courthouse and confirmed the agreement for an eight-year sentence with the prosecutor. According to DiCarlo, he announced to District Judge Alonzo Rodriguez that a plea agreement had been reached, and the judge nodded or stated, "okay." Shortly thereafter, the prosecutor advised DiCarlo that because Judge Rodriguez was occupied with a civil matter, the plea would be entered before Judge Joel B. Johnson. DiCarlo was unconcerned about entering the plea before Judge Johnson, and did not object. The prosecutor gave DiCarlo the plea paperwork, and DiCarlo explained the agreement to appellant. According to DiCarlo, he was given a form by the prosecutor, which reflected a plea agreement for an eight-year sentence.(3) DiCarlo and appellant appeared before Judge Johnson, and the judge proceeded with the usual admonishments. The judge then asked DiCarlo if he had explained to appellant that his plea was being entered on the day of trial and because of the policy that no plea bargain agreements would be accepted on the day of trial, appellant's plea would be treated as an "open" plea. DiCarlo responded that he had not, in fact, explained these matters to appellant because he was unaware of the policy. During a brief recess, DiCarlo discussed the matter with the prosecutor. The prosecutor told DiCarlo that he would recommend an eight-year sentence and that the judge likely would agree, because the victim's mother was prepared to testify that an eight-year sentence was acceptable. After conferring with appellant and his family, appellant decided to proceed with entering an open plea of guilty. The judge resumed the proceedings, accepted appellant's open plea of guilty, and proceeded to the disposition phase of the proceedings. The State then called the victim's mother, Rose Rau, to testify. On cross-examination by DiCarlo, Rau testified she was told appellant would be offered an eight-year sentence, and that she did not object to such a sentence, but she wanted the sentence "stacked" rather than served concurrently with the sentence imposed at appellant's revocation hearing. At the conclusion of Rau's testimony, DiCarlo requested a continuance, noting to the court he was unaware of the court's policy of refusing to accept plea agreements on the day of trial and was, therefore, unprepared to proceed. After advising DiCarlo that the only two choices available were to enter a plea or proceed with a jury trial, the trial court denied appellant's motion for continuance. The trial court noted that appellant could, if desired, withdraw his plea and proceed to trial. DiCarlo was unprepared to proceed to trial, however, because he had expected the court to accept appellant's plea on the basis of the plea agreement. After a brief recess, appellant chose to proceed with the plea. Appellant's wife and sister testified on his behalf. DiCarlo asked for the State's recommendation, and the State responded with a recommendation of eight years. The trial court assessed punishment at sixteen years confinement. Appellant filed a motion requesting a new trial, withdrawal of his guilty plea, and specific enforcement of the plea agreement. The motion, which was supported by DiCarlo's affidavit, urged that appellant's plea was involuntary and that he was denied effective assistance of counsel. On October 6, 1998 the trial court denied appellant's motion. Discussion The granting or denying of a motion for new trial lies within the sound discretion of the trial court. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). Appellate courts ordinarily will not reverse that decision unless the trial court has abused its discretion. The only question on appeal is whether the trial court's decision was clearly wrong and outside the zone of reasonable disagreement. Gonzalez, 855 S.W.2d at 695 n. 4. The test has been stated as being "a question of whether the court acted without reference to any guiding rules and principles." Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). The reviewing court should not substitute its judgment for that of the trial court, but should only decide whether the trial court's decision was arbitrary or unreasonable. Lewis, 911 S.W.2d at 7. By his first issue, appellant contends the trial court erred in denying his motion for new trial. Appellant contends the State denied him due process when it "directly or indirectly" breached its plea agreement by taking a passive stance in light of the trial court's refusal to accept the agreement on the day of trial. He argues that none of the plea papers stated that plea agreements would not be accepted on the day of trial, that no one from the prosecutor's office told DiCarlo that such a policy existed, and because he was unaware of the policy, DiCarlo relied on the State's plea bargain offer and did not prepare for trial. He argues it was therefore fundamentally unfair when the trial court refused to accept the plea bargain and required him to choose between pleading guilty on an open plea and proceeding to trial with an unprepared counsel. By his second issue, appellant contends that he was denied effective assistance of counsel and that his plea was not voluntarily entered because he was forced to choose between entering an open plea of guilty and going to trial with an unprepared counsel. Ineffective Assistance We begin by addressing appellant's second issue. Before a plea of guilty or plea of nolo contendere may be accepted by the court, it must be freely and voluntarily given by a mentally competent defendant. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon 1989). An involuntary guilty plea must be set aside. Boykin v. Alabama, 395 U.S. 238, 244 (1969); Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975). To determine if a plea is voluntary, we consider the record as a whole. Williams, 522 S.W.2d at 485. An accused is entitled to effective assistance of counsel during the plea bargaining process. Randle v. State, 847 S.W.2d 576, 580 (Tex. Crim. App. 1993); Ex Parte Wilson, 724 S.W.2d 72, 73 (Tex. Crim. App. 1987). The constitutional validity of a guilty plea made upon the advice of counsel depends on whether counsel's performance was reasonably competent, rendering a defendant effective representation during the particular proceedings. Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991). A defendant's election to plead guilty or nolo contendere when based upon erroneous advice of counsel is not done voluntarily and knowingly. Id. "When a defendant enters his plea upon the advice of counsel and subsequently challenges the voluntariness of that plea based on ineffective assistance of counsel, the voluntariness of such plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether 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." Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999) (quoting Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997)); see also Ex parte Battle, 817 S.W.2d 81, 84 (Tex. Crim. App. 1991); Diaz v. State, 905 S.W.2d 302, 307 (Tex. App.--Corpus Christi 1995, no pet.). Under this test, there is "a strong presumption that counsel's conduct falls within a wide range of reasonable representation." McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996) (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)). The defendant must prove his allegations by a preponderance of the evidence. Id. Accordingly, the allegation of ineffective assistance must be firmly founded and affirmatively demonstrated in the record. Id. The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Ex parte Scott, 581 S.W.2d 181, 182 (Tex. Crim. App. 1979); Stone v. State, 17 S.W.3d 348, 350 (Tex. App.--Corpus Christi 2000, pet. ref'd). Even in the most exceptional circumstances, an appellant's claim he was misinformed by counsel, standing alone, is not enough for us to hold the guilty plea was involuntary. Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd). Cases holding a guilty plea involuntary have had confirmation in the form of testimony or documents in the record which reveal misinformation and its conveyance to the criminal defendant. See, e.g., Ex parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999); Fimberg, 922 S.W.2d at 208 (citing Ex parte Griffin, 679 S.W.2d 15, 15 (Tex. Crim. App. 1984); McGuire v. State, 617 S.W.2d 259, 259 (Tex. Crim. App. 1981); Ex Parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980); State v. Hartman, 810 S.W.2d 22, 22 (Tex. App.--Beaumont 1991, no pet.); Murphy v. State, 663 S.W.2d 604, 610 (Tex. App.--Houston [1st Dist.] 1983, no pet.)). In the present case, the record contains DiCarlo's affidavit, which states he told the trial court he was unprepared to go to trial because he expected the court to accept the plea bargain reached with the State and because he was unaware of any policy precluding acceptance of a plea bargain on the day of trial. The affidavit further states that "[appellant] would not have entered his plea without my advice." The affidavit also states: counsel was ineffective because he was not told and was not aware of the Court "policy" which would not permit a plea on the date of trial; counsel was ineffective because he falsely told the defendant that alleged victim's mother would recommend eight years; because he falsely told the client the prosecutor would voluntarily recommend an eight year sentence. . . . I do not believe I could be effective given the numerous unusual fact situations and misrepresentations made to me. At the plea hearing, the following exchange occurred between DiCarlo and the trial court: [Court]: Counsel, were you ready for a jury trial? [DiCarlo]: No, because I was given a plea bargain of eight years, and my client agreed to the eight years. * * * * * [Court]: Well, you've got two choices, Counsel, you can go right down the hall and have yourself a jury trial, or you can have yourself a plea. The State did not dispute DiCarlo's assertion that a plea bargain existed. The affidavit also states that the State made a "firm offer" of a plea bargain for an eight-year sentence, and that appellant accepted the agreement. The State does not dispute on appeal the existence of a plea bargain. Appellant cites Murphy, 663 S.W.2d at 609-10, to support his contention that his plea was involuntary. Murphy held that a plea is involuntary when a defendant is given a choice of entering a plea or going to trial with an unprepared lawyer. Id. at 609. In Murphy, the defendant was going to trial that day on three counts of aggravated robbery. Id. His attorney believed that two of the counts had been severed and was unprepared to try the case because he had not consulted with the defendant on the two counts or called any of the witnesses necessary to defend against the two counts. Id. In the present case, as in Murphy, appellant was required to choose between going to trial with an unprepared lawyer, or pleading guilty on an open plea. Id. We conclude that the decision to plead guilty under these circumstances cannot be characterized as voluntary. DiCarlo's affidavit clearly states he was unprepared for trial because he had no knowledge of the policy stating that a plea bargain would not be accepted on the day of trial. While a trial court is not obligated to accept the terms of a bargain reached by the parties, DiCarlo relied on the State's assurance that the court would probably accept the agreement, and failed to prepare for the possibility of proceeding to trial. Counsel has a duty to make an independent investigation of the facts of his client's case and prepare for trial. Diaz, 905 S.W.2d at 307. DiCarlo's failure to investigate sufficiently to learn of the policy regarding the potential rejection of a plea bargain on the day of trial constitutes performance below an objective standard of reasonableness. Had DiCarlo known of the policy, he would have anticipated that the trial court might refuse to accept the agreement and would have prepared for trial. With a prepared lawyer, appellant would have been able to exercise his right to withdraw his plea and proceed to trial. In such circumstances, the State would have been forced to proceed immediately to trial or request a continuance. We conclude that the result of the trial would have been different and that both prongs of the Strickland test are met. We sustain appellant's second issue. We need not address appellant's remaining issue. See Tex. R. App. P. 47.1. The trial court's judgment is REVERSED and the cause is REMANDED to the trial court for a new trial. LINDA REYNA YAÑEZ Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 21st day of December, 2000. 1. Tex. Pen. Code Ann. § 21.11(Vernon 1989). 2. At the time of his arrest, appellant was on probation for a prior offense of indecency with a child. As a result, appellant's probation in the earlier cause was revoked and he was sentenced to seven years confinement by Judge Alonzo Rodriguez of the 343rd District Court of Aransas County. Appellant's trial counsel in the present case, Mark DiCarlo, also represented appellant at the revocation hearing. 3. The record does not contain any document specifying the terms of the agreement; it does, however, reflect that the parties reached a plea agreement.