David Alan Shand v. State

Affirmed in Part and Reversed and Remanded in part and Memorandum Opinion filed April 7, 2011. In The Fourteenth Court of Appeals ___________________ NO. 14-09-00863-CR ___________________ David Alan Shand, Appellant V. THE State of Texas, Appellee On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 1129485 MEMORANDUM OPINION Appellant David Alan Shand pled guilty to the charge of aggregate theft. The trial court sentenced him to forty years’ imprisonment. He appeals three points of error. We affirm the conviction but reverse and remand to the trial court for a new sentencing hearing. FACTUAL AND PROCEDURAL BACKGROUND Appellant has a history of committing financial crimes, including convictions for larceny, forgery, and theft. Nonetheless, he sought employment as a bookkeeper. Jordan Novelli, president and sole stockholder of American Capital Funding Corp. (“ACFC”), hired appellant in 1999 to perform the company’s accounting. Novelli knew appellant had a prior conviction, but believed it was for helping a girlfriend file a false income tax statement. Novelli did not permit appellant to sign checks, and thought he could trust appellant to honestly perform the company’s accounting because appellant “learned his lesson” and did not want to return to prison. In early 2002, Novelli hired outside auditors to review ACFC’s 2001 books. Lynne Abercrombie was the audit manager. Abercrombie testified she was unable to complete the audit due to lack of documentation. Abercrombie also realized “the general ledger was not complete and that the transactions were not shoring up to the documentation that was there.” Novelli fired Shand as a result of Abercrombie’s discoveries. Judith Golike, a former financial analyst for the Harris County District Attorney, testified appellant diverted approximately $2.3 million from ACFC accounts. She testified there were two ways the funds were diverted. The first was misdirection of payment to ACFC. Jerry Kotwitz, a co-defendant, set up a bank account in his name, d/b/a American Capital, d/b/a American Capital Funding. Kotwitz deposited approximately 600 checks written to American Capital or American Capital Funding into his account. The second method involved depositing checks made payable to ACFC’s vendors into another account owned by Kotwitz. Appellant, Kotwitz, and appellant’s girlfriend withdrew money from these accounts. On August 16, 2007, the State filed an indictment against appellant for aggregate theft of ACFC’s property between the dates of February 7, 2000 and February 14, 2002. The indictment also included references to two final convictions for the felony of tampering with a government record. Appellant’s first conviction occurred on February 23, 1996 and the second was final on March 27, 2002. The prosecutor’s apparent purpose of listing these convictions was to use them as evidence for enhancement of appellant’s sentence if the jury convicted him for the aggregate theft charge. In 2008, appellant filed a motion to quash the second enhancement. Appellant noted that the final conviction date of March 27, 2002 occurred after February 14, 2002, the final date the aggregate theft was alleged to have occurred. To be an enhancement, there must be a final conviction on the enhancement offense before the charged offense is alleged to have occurred. See Tex. Penal Code Ann. § 12.42 (West 2010); Harrison v. State, 950 S.W.2d 419, 422 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (sentence enhancements must be only previous final convictions). The trial court granted appellant’s motion to quash the March 27, 2002 enhancement on August 18, 2008. Appellant pled guilty on April 13, 2009 to the aggregate theft charge. The guilty plea also included references to the quashed offense. There was no agreed sentence recommendation between appellant and the State. The trial court conducted a pre-sentence investigation hearing on September 21, 2009. The sentencing range for aggregate theft with one enhancement is a term of fifteen to ninety-nine years in prison or life in prison. Tex. Penal Code Ann. § 12.42(c)(1). The sentencing range with two enhancements is a term of twenty-five years to ninety-nine years in prison or life in prison. Id. at § 12.42(d). After hearing all evidence, the trial court acknowledged appellant’s guilty plea and stated on the record “having pled true to the enhancement paragraphs at that point, it now becomes my duty to sentence you . . .” The trial court did not state what range of punishment appellant could have received under statute, but sentenced appellant to forty years’ imprisonment. The final judgment of conviction states appellant pled “true” to the second enhancement. ANALYSIS I. Did the Trial Court Err By Sentencing Appellant Under a Previously Dismissed Enhancement Paragraph? Appellant contends the trial court improperly recorded that appellant pled “true” to the enhancement of tampering with a government record, possibly creating an illegal sentence. As stated above, the minimum sentence term allowed by law was twenty-five years contingent on the existence of two enhancements. Id. at § 12.42(c)(1). The minimum sentence was fifteen years with only one enhancement. Id. at §12.42(d). As a result, appellant argues that the trial court may have determined the forty year sentence based upon an incorrect understanding of the correct minimum sentence. He requests we reform the judgment to indicate dismissal of the enhancement without a plea of true, and reverse and remand for a new sentencing hearing. The State concedes that the trial court’s judgment must be reformed to indicate appellant did not plead “true” to the second enhancement, but argues this court should only reform the judgment. The State contends: (1) there is no evidence that the plea of true to the enhancement was anything more than a typographical error; (2) there is no evidence the trial court considered the second enhancement when assessing punishment; (3) even if the trial court considered the improper enhancement, appellant has not shown harm because he was assessed punishment within the sentencing guidelines for the crime. We considered a similar matter in Mikel v. State, 167 S.W.3d 556 (Tex. App.—Houston [14th Dist.] 2005, no pet.); see also Ex Parte Rich, 194 S.W.3d 508, 513-514 (Tex. Crim. App. 2006) (approving Mikel’s disposition of the case). In Mikel, the defendant pled “true” to two sentence enhancements. Mikel, 167 S.W.3d at 559. The trial court should not have considered the second enhancement, however, because the final conviction occurred after the date of the charged offense. Id. at 558. This court determined there was insufficient evidence to sustain the sentence because the record showed the enhancement was “affirmatively flawed.” Id. An affirmative flaw existed because it was evident from the face of the record that the final conviction occurred after the charged offense. Id.; Cruz v. State, No. 01-00-00463-CR, 2001 WL 1168273, at *1 (Tex. App.—Houston [1st Dist.] Oct. 4, 2001, no pet.) (not designated for publication) We also determined the issue was not waived on appeal because the record affirmatively indicated the error. Mikel, 167 S.W.3d at 559. The remedy for an affirmatively flawed enhancement is to reverse and remand the sentence for consideration without the improper enhancement. Mikel, 167 S.W.3d at 560. Appellant did not plead insufficient evidence. He pled the enhancement was “illegal.” We express no opinion on the illegality of the enhancement because the precedent appellant references pertains to cases in which an improper enhancement led to an imposed sentence greater than the sentencing range for the charged offense. See Ex Parte Roemer, 215 S.W.3d 887, 891 (Tex. Crim. App. 2007) (misclassification of prior conviction allowed enhancement of charged offense to felony when defendant was only eligible for misdemeanor conviction); Ex Parte Rich, 194 S.W.3d at 511 (improper enhancement led to sentencing defendant to twenty-five years in prison; correct statutory sentencing range was two to twenty years in prison). In this case, the forty year sentence was within the sentencing range of a term of fifteen years to ninety-nine years. Nonetheless, both parties agree the trial court should not have considered the March 27, 2002 enhancement nor should it have been listed in the final judgment of conviction because the trial court had previously quashed it. Even if the enhancement had not been quashed, there is affirmative error in the enhancement. On the face of appellant’s guilty plea, the dates of the charged offense are between February 2000 and February 2002. The second enhancement is listed as final on March 27, 2002, clearly after the charged offense. See Mikel, 167 S.W.3d at 558-59. Under our precedent, we therefore reverse appellant’s sentence and remand the issue to the trial court for a new sentencing hearing. Appellant argued in his second point of error that he did not receive verbal admonishments about the statutory range of punishment for his crime. Accordingly, appellant contends he may have received an improper sentence because the trial court did not know it should consider only one enhancement, not two. We have reversed and remanded appellant’s sentence. As a result, it is unnecessary to evaluate appellant’s claims that he did not receive admonishments. See Tex. R. App. P. 47.1. II. Did Appellant Receive Ineffective Assistance of Counsel? Most of appellant’s arguments about alleged ineffective assistance of counsel involve events during the pre-sentencing hearing. We need not reach these arguments because we have already determined a new sentencing hearing is necessary. Appellant, however, has also argued his counsel did not make any attempt to discover if appellant believed his guilty plea was involuntary. If the guilty plea was involuntary, a reversal of the conviction is necessary. See Tex. Code Crim. Proc. Ann. § 26.12(b) (West 2010). A. Standard of Review When reviewing claims of ineffective assistance of counsel, we apply a two-prong test. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that (1) his trial counsel’s representation was deficient to the point it fell below standards of prevailing professional norms; and (2) there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would be different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). An accused is entitled to reasonably effective assistance of counsel. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). When evaluating a claim of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). There is a strong presumption that counsel’s actions and decisions were reasonably professional and motivated by sound trial strategy. See Salinas, 163 S.W.3d at 740; Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). To overcome the presumption of reasonably professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingraham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). When the record is silent as to the reasons for counsel’s conduct, as in this case, a finding that counsel was ineffective would require impermissible speculation by the appellate court. Stults, 23 S.W.3d at 208. Absent specific explanations for counsel’s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). B. Analysis Appellant contends his trial counsel was ineffective because, in his personal statement submitted for the pre-sentence investigation, appellant wrote that he was “tired, indigent, and no longer have the energy to fight this matter. Under the circumstances, I felt it in my best interest to plead guilty, despite my uneasiness, concerning actual guilt, putting my fate in His Honor’s hands.” Appellant claims his trial counsel was ineffective because, “Counsel made no attempts to object to or to clarify this sentencing report to the trial court, or to determine if his client had misgivings that preceded the sentencing hearing, and required withdrawal of the plea . . .” The personal statement is undated but is included in the pre-sentence investigation report. Prior to the personal statement, appellant signed the guilty plea and initialed admonishments acknowledging the charge, the sentence range possible with one enhancement, the statement that he understood the consequence of pleading guilty, and that he “freely, knowingly, and voluntarily executed this statement.” In addition, appellant sent another undated letter addressed to the trial judge, the district attorney, and court staff. On August 20, 2009, the pre-sentence investigator provided this statement with a note that it was a “supplement” to the pre-sentence investigation. In this document, appellant admitted to committing the aggregate theft. He wrote: “It is true that I, David Alan Shand, conspired . . . to [abscond] from American Capital Funding Corporation . . . I benefitted financially from the conspiracy.” There is no evidence appellant requested withdrawal of his guilty plea, claimed he did not understand the consequences of pleading guilty, or that trial counsel did not advance appellant’s interests. We have a strong presumption counsel is competent. Ingraham, 679 S.W.2d at 509. Without any evidence that counsel failed to heed appellant’s decision to withdraw his guilty plea or other evidence suggesting counsel failed to appropriately represent his client, we cannot conclude appellant received ineffective assistance of counsel. Thompson, 9 S.W.3d at 813. Furthermore, appellant’s supplemental statement asserts his guilt. A reasonably competent attorney could have believed the guilty plea was in appellant’s best interests. Salinas, 163 S.W.3d at 740. We overrule appellant’s second point of error. CONCLUSION We conclude appellant has not proven his trial counsel was ineffective, so his conviction is affirmed. Because a quashed enhancement was introduced against appellant, we order the sentence reversed, and remand this case to the trial court for a new sentencing hearing. /s/ John S. Anderson Justice Panel consists of Justices Anderson, Seymore, and McCally. Do Not Publish— Tex. R. App. P. 47.2(b).