Miller, Arthur Franklin Jr. ( 2018 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0891-15
ARTHUR FRANKLIN MILLER, JR., Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S MOTION FOR REHEARING AFTER
OPINION ON DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
COLLIN COUNTY
N EWELL, J., filed a concurring opinion in which W ALKER J.,
joined.
Appellant complains that he waived his right to a jury based upon
bad advice from his attorney regarding his eligibility for probation. This
resulted in his ineligibility to receive probation at punishment. There is
no disagreement that this amounted to deficient performance. The
disagreement is about what an Appellant must do to establish that he was
Miller Concurring – 2
prejudiced by his attorney’s performance. I agree with the Court that
Appellant need not prove that he would have actually received probation.
He need not prove that receiving probation was even a realistic
possibility. He must prove that his attorney’s bad advice resulted in
making a decision to waive rights or procedures he would not have
otherwise waived had he been given correct advice. That’s why I join the
Court’s opinion. I write separately to explain why the dissents convinced
me to do so.
At the outset, I disagree with framing the Court’s opinion as a great
expansion of the Sixth Amendment right to effective assistance of counsel
rather than a faithful application of Supreme Court precedent. The Court
does not cut a new standard out of whole cloth to evaluate Appellant’s
claims. Rather, the Court decides that the standard set out by the
Supreme Court in Hill v. Lockhart–focusing upon how the deficient
representation affected the defendant’s decision-making–is best suited for
addressing the type of ineffective assistance complaint lodged in this
case.1 But that standard has always been a part of the traditional
1
474 U.S. 52 (1985).
Miller Concurring – 3
Strickland v. Washington standard.2
Rather, drawing a distinction regarding the standard of prejudice
based upon whether there was “an entire trial proceeding” would greatly
diminish the right to effective assistance of counsel and undermine the
purpose behind both Strickland and Hill. When the Supreme Court
decided Hill v. Lockhart it applied the Strickland standard to a completely
different type of proceeding than the one in Strickland.3 The focus was
protecting a defendant’s Sixth Amendment right to the effective
assistance of counsel not the reliability of a particular type of proceeding.4
Later, the Court made clear in Roe v. Flores-Ortega, that prejudice results
from the denial of the “entire judicial proceeding” to which a defendant
is entitled.5 Yet requiring proof that a defendant would have actually
received probation had he received proper advice places the emphasis
2
Id. at 57 (“Although our decision in Strickland v. Washington dealt with a claim of
ineffective assistance of counsel in a capital sentencing proceeding, and was prem ised in
part on the sim ilarity between such a proceeding and the usual crim inal trial, the sam e two-
part standard seem s to us applicable to ineffective-assistance claim s arising out of the plea
process.”).
3
Id.
4
Id. at 56 (“W here, as here, a defendant is represented by counsel during the plea
process and enters his plea upon the advice of counsel, the voluntariness of the plea
depends on whether counsel’s advice ‘was within the range of com petence dem anded of
attorneys in crim inal cases.’”) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)).
5
528 U.S. 470, 483 (2000). Notably, the Court referred to a “judicial” proceeding.
It did not draw a distinction between a trial proceeding and a plea proceeding.
Miller Concurring – 4
upon the proceeding rather than the effectiveness of the representation.6
The Supreme Court rejected this approach in Lafler v. Cooper.7
There, the defendant chose to reject a plea bargain offer based
upon the erroneous advice of counsel and proceed to trial.8 The federal
district court granted relief and the Sixth Circuit Court of Appeals
affirmed, which lead to the State petitioning the Supreme Court to hold
that relief was inappropriate.9 The Court summarized the State’s
arguments as simply claiming that the defendant received a fair trial so
he could not complain that counsel’s advice was deficient.
In the end, petitioner’s three arguments amount to one
general contention: A fair trial wipes clean any deficient
performance by defense counsel during plea bargaining.10
The Court rejected this argument, noting that it is insufficient to simply
point to the guarantee of a fair trial as a backstop that inoculates any
errors in the pre-trial process.11 Yet, holding that Appellant was not
6
For this reason I am equally unpersuaded that W eaver v. Massachusetts, 137 S. Ct.
1899 (2017), a case involving the failure to object to the lack of a public trial, has anything
to do with this analysis.
7
566 U.S. 156 (2012).
8
Id. at 160.
9
Id.
10
Id. at 169.
11
Id. at 165.
 Miller Concurring – 5
prejudiced in this case because he received an entire trial proceeding
adopts the same argument rejected by the Supreme Court.
It is true that the Supreme Court wrote in Lafler that a defendant
must show “that the conviction or sentence, or both, under the offer’s
terms would have been less severe than under the judgment and
sentence that in fact were imposed.”12 But that observation must be
considered in the context of that case. The Supreme Court relied upon
a record that showed Cooper had received a sentence that was 3 ½ times
greater than he would have received under the plea.13 That holding does
not translate to a requirement that Appellant prove he actually would
have received probation. Here, a lack of a probated sentence does not
tell us anything because the trial court was not statutorily authorized to
award such a sentence. In this case, Appellant has proven that he would
have had a better outcome, at least as to punishment, had he not waived
his right to a jury because it would have at least provided him with an
opportunity he absolutely did not have under the proceeding he received.
This understanding is reinforced by the Supreme Court’s recent
12
Id. at 164.
13
Id. at 174.
 Miller Concurring – 6
decision in Lee v. United States.14 There, the defendant was charged with
possession of ecstasy with intent to distribute, and, as the Court
described it, the defendant’s “prospects of acquittal at trial were grim.” 15
However, his primary concern was not how much time he might serve if
found guilty. Rather, he was concerned that a conviction would result in
deportation. His attorney incorrectly advised him that he would not be
deported if he took the plea deal. He filed a motion to vacate his
conviction and sentence arguing that his attorney provided
constitutionally ineffective assistance. The Government argued that the
defendant had not shown prejudice because he had “no viable defense at
trial, he would almost certainly have lost and found himself still subject
to deportation, with a lengthier prison sentence to boot.” 16 According to
the Government, the defendant’s only hope at trial was that “something
unexpected and unpredictable might occur that would lead to an
acquittal.” 17
14
137 S. Ct. 1958 (2017).
15
Id. at 1965. Police obtained a search warrant for the defendant’s house where
they found 88 ecstasy pills. Id. at 1963. The defendant adm itted the pills were his and that
he had given the ecstasy to his friends. Id.
16
Id. at 1966.
17
Id.
Miller Concurring – 7
The Supreme Court rejected the Government’s argument because
deportation was the determinative issue in the defendant’s decision to
accept the plea deal.18 According to the Court, the defendant faced a
choice between the certainty of being deported by accepting a plea and
the “almost” certainty of being deported by risking a trial. That “almost”
made all the difference.19
Appellant was faced with an analogous choice in this case. Though
the issue was not deportation, Appellant faced a choice between the
certainty that the judge could not award him probation and the almost
certainty that a jury would not award him probation. As in Lee, that
“almost” is enough to establish prejudice. As Professors Dix and
Schmolesky have observed of our original opinion in this case, “In light
of Lee, the plurality in Miller is apparently wrong.” 20 I agree. And it is
better to fix the error now on rehearing. That is why I join the Court.
Filed: May 23, 2018
Publish
18
Id. at 1967.
19
Id. at 1968-69.
20
42 George E. Dix & John M. Schm olesky, Tex. Prac., Crim inal Practice and
Procedure § 29:90 (3d ed. 2011).