Ex parte ALVIN ROYCE WELLS, Applicant (Original)

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State: Texas

Docket No: AP-76,484

Case Date: 11/09/2011

Preview:IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. AP-76,483 & AP-76,484

Ex parte ALVIN ROYCE WELLS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM HOOD COUNTY

K ELLER, P.J., delivered the opinion of the Court in which P RICE, W OMACK, J OHNSON, K EASLER, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. M EYERS, J., filed a concurring opinion in which K EASLER, H ERVEY, and C OCHRAN, JJ., joined.

In these applications for post conviction writs of habeas corpus, applicant contends that he was denied effective assistance of counsel because his trial counsel misinformed him about the terms of a plea offer made by the State. We shall grant relief. I. BACKGROUND Prior to trial, counsel conveyed the State's 45-year plea offer to applicant but incorrectly told him that the offer included an affirmative deadly-weapon finding. Applicant rejected the offer, and the deadline to accept the offer passed. On the date of trial, counsel requested a continuance, explaining to the court that he had incorrectly conveyed the terms of the State's plea offer to

WELLS -- 2 applicant, causing applicant to miss the deadline to accept. Counsel explained that after he realized his error and informed applicant that the offer had not included a deadly-weapon finding, applicant said, "Well, now I would like to take the plea offer, it changes things." The State clarified that the plea offer was silent as to a deadly-weapon finding, so if applicant accepted the offer, the State would still have the option to seek a deadly-weapon finding. The trial court denied applicant's motion for continuance. Applicant ultimately pled guilty to one charge of possession of a controlled substance, and one charge of unlawful possession of a firearm by a felon. The trial court sentenced him to fifty years' imprisonment. No deadly-weapon finding was made. Applicant now contends that he was denied effective assistance of counsel during the plea bargaining process. He argues that counsel was deficient for incorrectly conveying the terms of the State's plea offer and that, but for counsel's error, applicant more than likely would have accepted the offer. He claims that he was harmed both by the five-year increase in his sentences and by the resulting loss of certain privileges in prison. The trial court recommended that applicant's claim be denied. We filed and set this case to determine whether counsel's incorrect advice amounted to the failure to convey a plea offer and, if so, what the remedy should be. Subsequently, the State conceded that applicant's counsel was ineffective and joined applicant in requesting reinstatement of the original 45-year plea offer. II. ANALYSIS A. Strickland Test A defendant is entitled to effective assistance of counsel during the plea bargaining process.1 To establish a claim for ineffective assistance of counsel, the defendant must satisfy the two-pronged
1

Ex parte Wilson, 724 S.W.2d 72, 73 (Tex. Crim. App. 1987).

WELLS -- 3 test articulated in Strickland v. Washington.2 First, he must prove that counsel's performance was deficient.3 This requires showing that counsel's representation fell below an objective standard of reasonableness.4 Second, he must prove that this deficient performance resulted in prejudice to the defense.5 This requires showing a reasonable probability that, but for counsel's deficient

performance, the outcome of the proceeding would have been different.6 B. Deficient Performance We have held that the complete failure of counsel to inform a criminal defendant of plea offers made by the State is an omission that falls below an objective standard of reasonableness.7 While the decision to accept or reject a plea offer belongs to the defendant, plea discussions are generally held outside the defendant's presence.8 Counsel thus has a duty to communicate the substance of the discussions to the defendant so that plea decisions are made only after the defendant

Strickland v. Washington, 466 U.S. 668 (1984); Hill v. Lockhart, 474 U.S. 52 (1985) (holding that the Strickland test applies to ineffective-assistance claims arising out of the plea process); Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) (adopting the Strickland test in Texas).
3

2

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Id. Id. Id.

4

5

6

Wilson, 724 S.W.2d at 74; see also United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 438 (3rd Cir. 1982) (holding that failure of counsel to communicate a plea offer to defendant constituted a "gross deviation from accepted professional standards").
8

7

Wilson, 724 S.W.2d at 73-74.

WELLS -- 4 has been informed of all relevant considerations.9 Failing to meet this duty constitutes deficient performance.10 If the failure to convey a plea offer can constitute deficient performance, it follows that counsel may act deficiently in giving the defendant inaccurate information about the plea offer's terms. One Texas court found deficient performance where counsel failed to inform the defendant that a plea offer had a firm deadline.11 Another found deficient performance where counsel failed to explain to the defendant the meaning of the State's deferred-adjudication offer.12 In this case, applicant depended on counsel to accurately communicate the substance of the State's 45-year plea offer to him so that he could make an informed decision as to whether to accept or reject it. Although counsel did convey the State's plea offer to applicant, the information as to a deadly-weapon finding was incorrect. This constituted deficient performance and satisfies the first prong of the Strickland test. C. Prejudice We have held that a defendant suffers prejudice when his counsel's deficient performance

9

Id. Id. at 74.

10

Turner v. State, 49 S.W.3d 461, 465 (Tex. App.

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