Obinna Michael Amuneke v. State ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00043-CR
OBINNA MICHAEL AMUNEKE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court No. 06-02146-CRF-272
MEMORANDUM OPINION
After an open plea of guilty to a lesser-included offense of second-degree
aggravated assault with a deadly weapon and a bench punishment hearing, Appellant
Obinna Amuneke received a two-year prison sentence. He appeals, raising two issues
of ineffective assistance of counsel. We will affirm.
In his first issue, Amuneke complains that his trial counsel was ineffective in
failing to inform him of a prior plea-bargain offer that included deferred adjudication
probation (community supervision). See Ex parte Lemke, 13 S.W.3d 791, 796 (Tex. Crim.
App. 2000). Amuneke moved for a new trial on that complaint, which the trial court
denied.
We first must address whether Amuneke waived this issue by, in connection
with his open guilty plea, agreeing to waive his right to appeal all matters except for
issues raised during punishment. In exchange, the State agreed to waive count one
(first-degree aggravated robbery) and to let Amuneke plead guilty to count two, the
lesser-included offense of second-degree aggravated assault with a deadly weapon,
with no cap on punishment.
We addressed this same question in the appeal of Amuneke’s co-defendant. See
Akuchie v. State, No. 10-09-00002-CR, 2010 WL 965959, at *1 (Tex. App.—Waco Mar. 10,
2010, pet. ref’d).
Waiver of all nonjurisdictional defects that occurred before a guilty
plea entered without the benefit of an agreed sentencing recommendation,
other than the voluntariness of the plea, occurs when the judgment of
guilt was rendered independent of, and is not supported by, the claimed
error. Young v. State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000).
Akuchie does not contend that his plea was involuntary on this basis. We
must then determine whether there is a direct nexus between the alleged
ineffective assistance of counsel and Akuchie’s plea of guilty.1
A claim of ineffective assistance may or may not have a direct
nexus with a defendant’s guilt or innocence. Martinez v. State, 109 S.W.3d
800, 803 (Tex. App.—Corpus Christi 2003, no pet.). Here, there is no
1 There must usually be a nexus—temporal or otherwise—between the error and
the judgment of guilt. Sanchez v. State, 98 S.W.3d 349, 353 (Tex. App.—Houston [1st
Dist.] 2003, pet. ref’d). … Allegations of ineffective assistance of counsel may or may not
have a direct nexus with a defendant’s plea of guilty. Martinez v. State, 109 S.W.3d 800,
803 (Tex. App.—Corpus Christi 2003, pet. ref’d). … A judgment of guilt is rendered
independently of the alleged error when the alleged grounds of ineffective assistance of
counsel are not related to the plea of guilty. See id.; …
Guidry v. State, 177 S.W.3d 90, 93 (Tex. App.—Houston [1st Dist.] 2005, no pet.). But see Champion v. State,
126 S.W.3d 686, 691 (Tex. App.—Amarillo 2004, pet. ref’d).
Amuneke v. State Page 2
evidence that Akuchie would have pleaded not guilty had it not been for
his counsel’s alleged ineffectiveness in not conveying a plea bargain offer.2
Therefore, we find that, regarding the allegation of ineffective assistance
of counsel for any failure to convey a plea bargain offer, the judgment of
guilt rendered by the trial court was rendered independent of, and is not
supported by, the alleged ineffective assistance of counsel. See Young, 8
S.W.3d at 666-67. As such, by pleading guilty without an agreed
punishment recommendation, Akuchie has waived any complaint of
ineffective assistance regarding his trial counsel’s failure to convey the
State’s offer of a plea bargain to him for purposes of this direct appeal. See
Martinez, 109 S.W.3d at 803.
Id.
Amuneke has not asserted nor shown a direct nexus between his guilty plea and
his trial counsel’s alleged ineffectiveness in failing to inform him of the prior plea-
bargain offer. Accordingly, he has waived this issue. See id. (citing Martinez, 109 S.W.3d
at 803).
Amuneke additionally contends that his guilty plea was not voluntary—it was
not knowing and intelligent—because of trial counsel’s alleged ineffectiveness in failing
to inform Amuneke of the prior plea-bargain offer. While this appears to be a
restatement of the issue that we have just held was waived, we will address it. See, e.g.,
Arreola v. State, 207 S.W.3d 387, 390-93 (Tex. App.—Houston [1st Dist.] 2006, no pet.)
(addressing claim that guilty plea was involuntary because of alleged ineffective
2 Amuneke contends that we should not apply the direct-nexus test because his factual scenario
does not involve his otherwise pleading not guilty and insisting on going to trial. Citing Ex parte Wolf,
Amuneke argues that he should not have to show that he would have pleaded not guilty and insisted on
a trial. See Ex parte Wolf, 296 S.W.3d 160, 170 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (“When
the applicant alleges prejudice based on the loss of an opportunity to plead “guilty” on a different basis
than he did, it makes sense not to require proof that the applicant would have insisted on going to trial.
Under the circumstances of this case, Wolf was not required to prove that he would have insisted on
going to trial.“) (citations omitted) (citing Lemke, 13 S.W.3d at 795-98). Nevertheless, we are still
persuaded that we should require Amuneke to link his guilty plea with his trial counsel’s alleged
ineffective assistance.
Amuneke v. State Page 3
assistance of counsel in the form of erroneous advice that induced defendant to plead
guilty); Paz v. State, 28 S.W.3d 674, 675 (Tex. App.—Corpus Christi 2000, no pet.) (same).
When the record indicates that the trial court duly admonished the
defendant, this presents a prima facie showing that defendant’s plea was
voluntary. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998);
Jackson v. State, 139 S.W.3d 7, 14 (Tex. App.—Fort Worth 2004, pet. ref’d).
Defendants who previously admitted their pleas were voluntarily and
knowingly made carry a heavy burden on appeal to prove otherwise.
Labib v. State, 239 S.W.3d 322, 332 (Tex. App—Houston [1st Dist.] 2007, no
pet.); Acosta v. State, 160 S.W.3d 204, 211 (Tex. App.—Fort Worth 2005, no
pet.).
Akuchie, 2010 WL 965959, at *2.
The record shows that the trial court duly admonished Amuneke in the plea
hearing, but Amuneke argues that his guilty plea was involuntary because he did not
know at that time that his trial counsel had failed to communicate the prior plea-
bargain offer. To prevail on an ineffective assistance of counsel claim, the familiar
Strickland v. Washington test must be met. Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct.
2527, 2535, 156 L. Ed. 2d 471 (2003) (citing Strickland, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674 (1984)); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App.
2005) (same). Under Strickland, we must determine: (1) whether counsel’s performance
was deficient, and if so, (2) whether the defense was prejudiced by counsel’s deficient
performance. Wiggins, 539 U.S. at 521, 123 S.Ct. at 2535; Strickland, 466 U.S. at 687, 104
S.Ct. at 2064; Andrews, 159 S.W.3d at 101.
At the hearing on Amuneke’s motion for new trial, the prosecutor testified that
on April 28, 2008, three years after the charged offense occurred, he spoke with trial
counsel for Amuneke and Akuchie before a hearing on the State’s motion for joinder.
Amuneke v. State Page 4
He told them that he would offer either Amuneke or his co-defendant Akuchie deferred
adjudication if one would plead guilty and testify truthfully against the other and
against the third co-defendant (Amuneke’s brother). The offer was available to the first
one to accept it. Defense counsel were upset that there was no misdemeanor offer, and
both indicated their clients would not accept anything other than misdemeanor pleas.
After the hearing, the prosecutor asked them if either wanted to cooperate, and neither
responded.
Amuneke testified that his trial counsel did not inform him of the prosecutor’s
plea-bargain offer, and if he had done so, Amuneke would have accepted it.
Amuneke’s trial counsel did not testify at the hearing, but his affidavit, filed as an
exhibit, states that he was never made aware of a plea offer “involving any form of a
probated sentence,” and thus he would not have informed Amuneke of any such offer.
The trial court issued findings of fact and conclusions of law on Amuneke’s
motion for new trial, and it found that Amuneke’s trial counsel did not communicate to
Amuneke the April 28, 2008 plea-bargain offer. It is settled law that a lawyer’s failure to
inform his client of a plea offer is an omission that falls below an objective standard of
reasonableness. Lemke, 13 S.W.3d at 795 (citing Ex parte Wilson, 724 S.W.2d 72, 73-74
(Tex. Crim. App. 1987)). Amuneke thus shows deficient performance, the first prong of
Strickland. He must also show prejudice, which means he must show that he would
have accepted the plea offer and the result of the proceeding would have been different.
See Wilson, 724 S.W.2d at 74-75 & n.1 (citing Strickland, 466 U.S. at 694, 104 S.Ct. at 2068).
The trial court made a finding that Amuneke’s testimony that he would have
Amuneke v. State Page 5
accepted the offer is not credible because: (1) Amuneke was seeking a misdemeanor
offer; (2) the offer was made three years after the offense, and the defense strategy of
Amuneke and Akuchie (per the testimony of Amuneke’s brother’s trial counsel) was to
not cooperate with the State on the belief that, because so much time had passed, the
State’s witnesses would not show for trial and the State would have to make a
misdemeanor offer; and (3) Amuneke would not have testified against his brother or
Akuchie, who also sought a misdemeanor offer, as Amuneke and Akuchie were both
seeking doctorate degrees, and a felony would destroy those chances.3 Moreover, both
Amuneke and Akuchie testified at the joint hearing on each of their motions for new
trial that each would have accepted the plea-bargain offer involving deferred
adjudication. The State points out that no agreement could have been reached because
the offer was open to only the first to accept it, both could not have accepted it, and
there thus could not have been a plea-bargain agreement.
The trial court’s findings are supported by the record, and we agree that
Amuneke cannot show prejudice from his trial counsel’s failure to inform him of the
plea offer. Because Amuneke cannot establish a claim for ineffective assistance of
counsel, he cannot show that his guilty plea was involuntary. We overrule issue one.
In his second issue, Amuneke claims that his trial counsel was ineffective in the
3 We reject Amuneke’s contention that Texas law requires a court to accept “at face value” a
defendant’s claim that he would have accepted an unconveyed plea-bargain offer. Amuneke cites no case
directly stating this proposition, and the cases he does cite simply involve trial-court findings, supported
by the record, that the defendant would have accepted the offer. See Lemke, 13 S.W.3d at 796; State v.
Williams, 83 S.W.3d 371, 376 (Tex. App.—Corpus Christi 2002, no pet.) (“We hold that the trial court did
not abuse its discretion in accepting Appellee’s assertion that he would have taken the offer if it had been
explained to him.”).
Amuneke v. State Page 6
punishment phase by asking allegedly harassing questions of the victim that annoyed
the trial court.
Appellate review of defense counsel’s representation is highly
deferential and presumes that counsel’s actions fell within the wide range
of reasonable professional assistance. Mallett v. State, 65 S.W.3d 59, 63
(Tex. Crim. App. 2001); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App.
2000). Under normal circumstances, the record on direct appeal will not
be sufficient to show that counsel’s representation was so deficient and so
lacking in tactical or strategic decisionmaking as to overcome the
presumption that counsel’s conduct was reasonable and professional. See
Goodspeed v. State, [187 S.W.3d 390, 392 (Tex. Crim. App. 2005)]; Mitchell,
68 S.W.3d at 642.
Rarely will the trial record contain sufficient information to permit
a reviewing court to fairly evaluate the merits of such a serious allegation:
“[i]n the majority of cases, the record on direct appeal is simply
undeveloped and cannot adequately reflect the failings of trial counsel.”
Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999) (to defeat
the presumption of reasonable professional assistance, “any allegation of
ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness”); see also Johnson v.
State, 68 S.W.3d 644, 655 (Tex. Crim. App. 2002) (“[t]he record does not
reveal defense counsel’s reasons for not objecting to the prosecutor’s
comments. Given the presumption of effectiveness and the great
deference we give to decisions made by defense counsel, we see nothing
in the present record that would compel us to find counsel ineffective.”);
Mitchell, 68 S.W.3d at 642 (“[g]enerally the record on direct appeal will not
be sufficient to show that counsel’s representation was so deficient as to
meet the first part of the Strickland standard. The reasonableness of
counsel’s choices often involves facts that do not appear in the appellate
record. A petition for writ of habeas corpus usually is the appropriate
vehicle to investigate ineffective-assistance claims.”).
In the absence of evidence of trial counsel’s reason for the
challenged conduct, we assume a strategic reason for trial counsel’s
conduct, if one can be imagined. Garcia v. State, 57 S.W.3d 436, 440 (Tex.
Crim. App. 2001) (“an appellate court ‘commonly will assume a strategic
motivation if any can possibly be imagined,’ and will not conclude the
challenged conduct constituted deficient performance unless the conduct
was so outrageous that no competent attorney would have engaged in
it.”) (quoting 3 W. LAFAVE, ET AL., CRIMINAL PROCEDURE § 11.10(c) (2d ed.
Amuneke v. State Page 7
1999) and citing Thompson, 9 S.W.3d at 814). But, if nothing in the record
reveals trial counsel’s reason, it is improper for us to speculate on it. See
Thompson, 9 S.W.3d at 814; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.
App. 1994). “A reviewing court can frequently speculate on both sides of
an issue, but ineffective assistance claims are not built on retrospective
speculation; rather, they must ‘be firmly founded in the record.’” Avila v.
State, 2003 WL 21513440 at *10 (Tex. Crim. App. July 1, 2003) (not
designated for publication) (quoting Bone, 77 S.W.3d at 833).
McNeil v. State, 174 S.W.3d 758, 759-60 (Tex. App.—Waco 2005, no pet.)
Amuneke’s trial counsel did not testify at the hearing on his motion for new trial.
We agree with the State that most of trial counsel’s questions could be construed as an
attempt to mitigate Amuneke’s involvement in the offense, so we thus assume a
strategic reason for trial counsel’s conduct. See Garcia, 57 S.W.3d at 440. Without a
record revealing trial counsel’s strategy or motivation, Amuneke has not defeated the
strong presumption that his trial counsel’s actions fell within the wide range of
reasonable professional assistance. See McNeil, 174 S.W.3d at 760. Issue two is
overruled, and having overruled both issues, we affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed February 23, 2011
Do not publish
[CR25]
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