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Miller v. State

Court of Criminal Appeals of Texas

April 26, 2017

ARTHUR FRANKLIN MILLER, JR., Appellant
v.
THE STATE OF TEXAS

         ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS COLLIN COUNTY

          Alcala, J., announced the judgment of the Court and delivered an opinion in which Keller, P.J., Keasler, and Hervey, JJ., joined. Keel, J., filed a dissenting opinion in which Richardson and Walker, JJ., joined.

          OPINION

          ALCALA, J.

         The issue in this ineffective-assistance-of-counsel case is the standard that courts should employ for assessing whether a defendant was prejudiced from his attorney's deficient performance with respect to the defendant's decision to waive a jury trial in favor of a bench trial. There are two possible alternatives for the prejudice standard in this type of case. First, a court could consider solely how the deficient performance affected the defendant's decision to waive the jury. Second, a court could consider the totality of the record so that the deficient performance is gauged against how it affected the outcome of the proceedings by comparing the outcome of the bench trial that actually did occur with the probable outcome of the jury trial that did not occur. In his sole ground in his petition for discretionary review, Arthur Franklin Miller, Jr., appellant, contends that this Court should employ the first alternative. We conclude, however, that the second alternative appropriately applies Strickland v. Washington's traditional prejudice outcome-based standard.[1] By examining the totality of the record, including the proceedings at the evidentiary bench trial that occurred in this case, we determine that appellant has failed to show a reasonable probability that the outcome of the proceeding would have been different had he elected to have a jury trial. We hold that the court of appeals properly determined that appellant was not prejudiced by counsel's erroneous advice. Accordingly, we affirm the court of appeals's judgment.

         I. Background

         Appellant was charged with aggravated sexual assault of a child and indecency with a child by sexual contact. See Tex. Penal Code §§ 21.11, 22.021.[2] Appellant waived his right to a jury trial and pleaded not guilty at a bench trial to the charges. The trial court found appellant guilty on both charges and sentenced him to twenty-two years' and ten years' imprisonment, respectively.

         Appellant filed a motion for new trial alleging ineffective assistance of counsel on the basis that his trial counsel had erroneously promised him that he would receive probation if he was found guilty by the trial court. This advice was erroneous because, under the former law that applies to appellant's offenses that were committed in 2001, only a jury could recommend a probated sentence if he was found guilty of the offenses. See Tex. Code Crim. Proc. Ann. Art. 42.12 §§ 3(g), 4, 5 (West 2006).[3] Appellant argued that, had he been correctly advised about the judge's inability to grant him probation, he would have elected a jury trial rather than a bench trial. In support of this contention, appellant and several of his family members testified at the hearing on his motion for new trial that trial counsel repeatedly urged appellant to waive a jury trial and proceed with a bench trial because, if the trial judge found him guilty, the judge would give him probation due to appellant's elderly age, lack of criminal history, and the weakness of the State's case. The trial court denied appellant's motion for new trial, and appellant timely appealed.

         On appeal, the court of appeals affirmed the trial court's decision to deny appellant's motion for new trial. Miller v. State, No. 05-14-01065-CR, 2015 WL 3456783, at *1 (Tex. App.-Dallas June 1, 2015) (mem. op., not designated for publication). The State conceded that trial counsel's performance objectively fell below reasonable professional norms and thus constituted deficient performance satisfying the first prong under Strickland. Id. at *2. The court of appeals's analysis, therefore, focused on whether counsel's deficient performance had prejudiced appellant under the second prong of Strickland. Id. at *3. The court of appeals's description of the issue was "whether there was a 'reasonable probability' that the result of the proceeding would have been different if appellant's attorney had given him correct advice; that is, whether a jury would have sentenced appellant to probation." Id. (citing Riley v. State, 378 S.W.3d 453, 458 (Tex. Crim. App. 2012)). The court explained that the abuse-of-discretion standard applied to its review of the trial court's denial of appellant's motion for new trial and that, under that standard, an appellate court views the evidence in the light most favorable to the trial court's ruling. Id. at *1. Applying that standard to this case, the court of appeals observed that the trial court here denied appellant's motion for new trial, and thus the "trial judge implicitly found that there was no reasonable probability that the result of the proceeding would have been different." Id. at *4. The court of appeals determined that appellant had failed to show that he was prejudiced by counsel's misadvice because (1) the trial judge could have disbelieved appellant's assertion that he would not have waived a jury if he had known that the judge was unable to assess probated sentences, and (2) appellant had failed to show a reasonable probability that a jury would have awarded him the probated sentences. Id. at *4-5 ("The trial court was not required to accept appellant's claim that he would have acted differently had he received correct advice. And even if the trial court accepted this claim, appellant was also required to establish that correct advice would have changed the result of the proceeding.").

         Appellant petitioned this Court for discretionary review. He argues that the court of appeals erred in upholding the trial court's ruling because no reasonable view of the record supports its determination that he was not prejudiced by trial counsel's deficient performance. Appellant asserts that he was prejudiced because he would not have waived a jury and agreed to a bench trial had counsel properly informed him that the trial court could not award him probated sentences for the offenses for which he was charged.[4] The State maintains that appellant has failed to show prejudice because, regardless of whether appellant had been sentenced by the judge or jury, he would not have received probated sentences for these offenses, and thus he has failed to demonstrate a reasonable probability that the outcome of the proceedings would have been different.

         II. The Proper Standard for Prejudice

         In light of the arguments presented in this case, we address whether demonstrating prejudice under these circumstances due to counsel's erroneous advice about probation eligibility requires appellant to show, on the one hand, that his decision to waive a jury would have been different had he been properly advised, or, on the other hand, that there is a reasonable probability that a jury's sentence would have been different from the judge's sentence. We conclude that the latter standard is appropriate in this case by examining this Court's existing precedent, some of which is conflicting on this question; the Strickland standard that applies to all ordinary ineffective-assistance-of-counsel claims arising from counsel's errors during the course of a trial proceeding; the Hill v. Lockhart[5] standard that pertains to claims of ineffectiveness arising from counsel's errors during a guilty-plea proceeding; and the rationale for opting for the traditional Strickland outcome-based prejudice standard under the facts of this case.

         A. This Court's Precedent

         This Court's precedent suggests two alternative ways of assessing prejudice in this context. The first alternative that envisions prejudice in the context of the decision between a jury or a bench trial was set forth in the early 1990's in State v. Recer, in which we stated,

To support a claim of ineffective assistance of counsel where . . . the complaint is that counsel misunderstood the law regarding probation . . . more must be apparent from the record than counsel's mere mistake. There must be evidence [1] that the defendant was initially eligible to receive probation, [2] that counsel's advice to go to the trial judge for sentencing was not given as part of a valid trial strategy, [3] that the defendant's decision to have the judge assess punishment was based on his attorney's erroneous advice, and [4] that the defendant's decision would have been different if her attorney had correctly informed her of the law.

815 S.W.2d 730, 731-32 (Tex. Crim. App. 1991) (emphasis added). Recer, therefore, supports the view that the prejudice standard should examine whether a defendant would have made a different decision had he been properly advised. See id.

         About two decades later in Riley v. State, this Court, although citing Recer, articulated a different standard for determining prejudice from counsel's erroneous advice about probation eligibility that focused on whether the results of the proceeding would have been different had the defendant been properly advised. Riley, 378 S.W.3d at 458. In Riley, we stated,

When the claim of ineffectiveness relies upon counsel's misunderstanding of the law regarding community supervision, there must be evidence that: [1] the defendant was initially eligible for community supervision; [2] counsel's advice was not given as part of a valid trial strategy; [3] the defendant's election of the assessor of punishment was based on his attorney's erroneous advice; and [4] the results of the proceeding would have been different had his attorney correctly informed him of the law.

Id. (emphasis added); see also id. (explaining that "the analysis of the prejudice prong turns on whether the deficiency made any difference to the outcome of the case"). In Riley, we did not explain or address the difference between our description of the relevant standard and the description of the standard in Recer; we simply noted that Recer was analogous to Riley and thus Recer's test was "informative and appropriate" to the scenario presented in Riley. Id. at 458 n. 24.

         B. The Strickland Standard for Prejudice in Ordinary Cases Involving Errors by Counsel At Trial Considers Whether the Result of the Proceeding Would Have Been Different

         The prejudice standard espoused in Riley that contemplates whether, but for counsel's erroneous advice regarding probation eligibility, the outcome of the proceedings would have been different was rooted in the prejudice standard set forth in Strickland that generally applies to claims of ineffectiveness stemming from errors by counsel during a trial proceeding. The Supreme Court, in 1984, decided Strickland, in which it established the two-prong test to resolve ineffective-assistance-of-counsel claims. See Strickland, 466 U.S. at 687. The first prong requires showing that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 688. The second prong requires a defendant to prove that, but for such deficient performance, a reasonable probability exists that the result of the proceeding would have been different. Id. at 694. A "reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

         The second prong of the Strickland test is a consequence of the "strong presumption of reliability" that the Supreme Court "normally app[lies] . . . to judicial proceedings." Smith v. Robbins, 528 U.S. 259, 286 (2000) (citing Strickland, 466 U.S. at 696). In most cases, to establish that a trial was rendered unfair due to ineffectiveness by an attorney, a defendant must "overcome" the "presumption of reliability" by proving actual prejudice. Id. Strickland did not establish mechanical rules for their own sake. Rather, the test is a reflection of a defendant's burden to overcome the "presumption of reliability" that courts ordinarily afford all "judicial proceedings." Roe v. Flores-Ortega, 528 U.S. 470, 482 (2000). A defendant pressing an ineffective-assistance claim ordinarily must "overcome that presumption" by "show[ing] how specific errors of counsel undermined the reliability of the finding of guilt" or the punishment assessed. Id.

         Strickland was a capital-murder case in which a death sentence had been imposed, and it left open the question of whether its standard applied in the context of the sentencing phase of non-death-penalty cases. Strickland, 466 U.S. at 686 ("We need not consider the role of counsel in an ordinary sentencing, which may . . . require a different approach to the definition of constitutionally effective assistance."). The facts in Strickland involved a defendant who pleaded guilty to three capital murder charges. Id. at 672. After that, Strickland's trial counsel conducted some preparation for the sentencing phase of the proceedings, but he decided not to present, and hence not to look further for, evidence concerning Strickland's character and emotional state. Id. at 673. At the sentencing hearing, counsel argued that Strickland's remorse and acceptance of responsibility justified sparing him from the death penalty. Id. The State put on evidence and witnesses largely for the purpose of describing the details of the crimes, but counsel did not cross-examine the medical experts who testified about the manner of death of Strickland's victims. Id. at 674. In discussing prejudice in Strickland, the Supreme Court noted that, aside from conflict-of-interest claims, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. Id. at 693. The Court observed that attorney "errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial." Id. It explained, "Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense." Id.

         The Strickland Court made strong statements about the need for courts to focus on the actual reliability of the proceedings that did occur rather than on speculation about the possibility of jury nullification or some other extreme event. Id. at 694-95. The Court stated,

In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to the law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, "nullification, " and the like. A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision.

Id.

         With respect to its focus on the outcome of the proceedings in the context of Strickland's sentencing hearing that had occurred before the trial court in that case, the Supreme Court determined that it was necessary for reviewing courts to examine the totality of the evidence, which in that case required the reviewing court to decide whether there was a reasonable probability that, absent counsel's errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant a sentence of death. Id. at 695. The Court stated, "In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." Id.

         Initially, this Court held that the Strickland prejudice standard was inapplicable in non-capital sentencing proceedings. See Ex parte Cruz, 739 S.W.2d 53, 58 (Tex. Crim. App. 1987); see also Ex parte Duffy, 607 S.W.2d 507, 516 (Tex. Crim. App. 1980). But later, this Court reversed course and announced that the Strickland standard ordinarily would apply to all cases, including non-death cases, at both the guilt and punishment phases. Hernandez v. State, 988 S.W.2d 770, 771 (Tex. Crim. App. 1999). Under Strickland, therefore, in ordinary cases of ineffective assistance of counsel involving a claim that counsel has performed deficiently during either the guilt or punishment phases of trial, courts must apply the prejudice standard that focuses on whether there is a reasonable probability that the result of the proceedings would have been different but for the attorney's deficient performance.

         C. The Hill Standard for Prejudice in Plea Proceedings Applies Strickland By Considering Whether the Defendant Would Not Have Pleaded Guilty

         After Strickland set forth the prejudice standard for claims of ineffective assistance in ordinary trials, the Supreme Court discussed that standard in the context of a claim of ineffectiveness where there had only been plea proceedings rather than an ordinary trial. Hill, 474 U.S. at 56-59. In Hill, the Supreme Court held that Hill had failed to prove ineffective assistance of counsel because he "failed to allege the kind of 'prejudice' necessary to satisfy the second half of the Strickland v. Washington test[.]" Id. at 59. The Court explained that satisfying the prejudice prong in this context requires that the defendant show "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. The Court addressed how to assess prejudice from the deficient performance by Hill's attorney, who had misinformed Hill about his eligibility for parole under the sentence he had agreed to in the plea bargain. Id. at 60. The Court explained that Hill had failed to allege in his habeas petition that, had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty and insisted on going to trial. Id. Furthermore, Hill had not alleged any special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty. Id. In considering whether Hill would have made a different decision whether to plead guilty had he been correctly advised, the Supreme Court also considered the complained of matter in the context of the ultimate outcome of the trial. Id. It said, "Indeed, [Hill's] mistaken belief that he would become eligible for parole after serving one-third of his sentence would seem to have affected not only his calculation of the time he likely would serve if sentenced pursuant to the proposed plea agreement, but also his calculation of the time he likely would serve if he went to trial and were convicted." Id.

         Hill applied the Strickland prejudice standard in the particular context of a guilty-plea proceeding by determining that, if a defendant would have made a different decision to plead guilty to an offense had he been correctly advised by his attorney, then that establishes the prejudice requirement that considers whether it is reasonably likely that the result of the proceedings would have been different. See id. at 59. With respect to this matter, the Supreme Court stated,

In many guilty plea cases, the "prejudice" inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential ...

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