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Miller v. State

Court of Criminal Appeals of Texas

May 23, 2018

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

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

          OPINION

         We withdraw our prior opinion and hold that a defendant meets the prejudice prong of his ineffective assistance of counsel claim by demonstrating that he would have opted for a jury if his attorney had correctly advised him that he was ineligible for probation from the trial court. He does not have to show that the likely outcome of the jury trial he waived would have been more favorable than the court trial he had. We base our holding on a line of cases stretching from Hill v. Lockhart, 474 U.S. 52, 59 (1985), to Lee v. United States, 137 S.Ct. 1958 (2017), and our opinion in State v. Recer, 815 S.W.2d 730, 731-32 (Tex. Crim. App. 1991). We disavow our contrary holding in Riley v. State, 378 S.W.3d 453, 458 (Tex. Crim. App. 2012), to the extent that it conflicts with this opinion. We express no opinion about whether Appellant has demonstrated a reasonable probability that he would have opted for a jury if his attorney had correctly advised him about his probation eligibility but remand to the court of appeals to address that issue.

         Background

         Appellant was charged with aggravated sexual assault of a child and indecency with a child alleged to have occurred in July 2001. Tex. Penal Code Ann. §§ 21.11, 22.021 (West 1999). If convicted of either of those crimes he was not eligible for probation from a judge. Tex. Code Crim. Proc. Ann. Art. 42.12 § 3g(a)(1) (West 2001). But his attorney advised him otherwise. Appellant waived a jury and pleaded not guilty. After a bench trial, the judge found him guilty of both charges and sentenced him to 22 years in prison for aggravated sexual assault and ten years for indecency.

         Appellant sought a new trial on grounds of ineffective assistance of counsel for the bad advice about his probation eligibility. The trial court denied the motion, and the court of appeals affirmed the ruling. Miller v. State, 2015 WL 3456783 (Tex. App.-Dallas, June 1, 2015 (mem. op., not designated for publication). We granted Appellant's petition for discretionary review which asked whether the lower court erred in finding that the deficient performance was not prejudicial under Strickland v. Washington, 466 U.S. 668 (1984).

         Ineffective Assistance of Counsel

         To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate two things: deficient performance and prejudice. Hill, 474 U.S. at 59; Strickland, 466 U.S. at 694. The question here is how to measure prejudice when the attorney's deficient performance - bad advice about probation eligibility - could not have affected the outcome of the defendant's trial but could only have affected the defendant's decision to waive a jury. Although the Hill opinion characterized itself as an application of Strickland, its prejudice focus differed enough from Strickland's to present us with a choice between two standards: Strickland's different outcome standard and Hill's waived proceeding standard. For the reasons given below, we conclude that the choice between them depends on the possible result of the alleged deficient performance. In this case, since the attorney's wrong advice about probation could only have affected the defendant's choice to waive a jury, the correct measure of prejudice is Hill's waived proceeding standard.

         Strickland held that the measure of prejudice for IAC claims is whether the deficient performance might have affected the outcome of the proceeding that the defendant had. Strickland, 466 U.S. at 694. The "ultimate focus" of the Strickland prejudice standard is "the fundamental fairness of the proceeding whose result is being challenged." Id. at 696. This requires the reviewing court to examine "the totality of the evidence before the judge or jury" and ask whether "the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Id. at 695-96. If the deficient performance might have affected a guilty verdict, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. If the deficient performance might have affected a punishment verdict, the prejudice issue is whether there is a reasonable probability that, absent the errors, the sentencer would have assessed a more lenient punishment. See id. (in a death penalty case, "the question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.").

         On the other hand, if the deficient performance might have caused the waiver of a proceeding, the defendant's burden is to demonstrate a reasonable probability that the deficient performance caused the defendant to waive a judicial proceeding that he was otherwise entitled to have. Lee, 137 S.Ct. at 1965; Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000); Hill, 474 U.S. at 59. The focus then is on the defendant's decision making. Lee, 137 S.Ct. at 1966. In Lee, where the attorney wrongly advised the defendant that he would not be deported if he pleaded guilty, 137 S.Ct. at 1962, the error "affected Lee's understanding of the consequences" of his plea, so the prejudice issue was "whether there was an adequate showing that the defendant, properly advised, would have opted to go to trial." Id. at 1965. In Flores-Ortega, where the defendant waived his right to appeal, the prejudice issue was whether he would have appealed but for his attorney's bad advice. 528 U.S. at 484. In Hill, where the defendant claimed his attorney gave him bad advice about parole, 474 U.S. at 56, the prejudice issue was whether the defendant still would have pleaded guilty if his attorney had correctly advised him about parole. Id. at 59.

         The likelihood of a better outcome from a waived or forfeited proceeding is not the correct prejudice standard because "we cannot accord any 'presumption of reliability' to judicial proceedings that never took place." Flores-Ortega, 528 U.S. at 483 (citing Smith v. Robbins, 528 U.S. 259, 286 (2000)). In those circumstances the different outcome question may be relevant to the extent that it sheds light on whether the deficient performance really did affect the defendant's decision making, but it is not the measure of prejudice. See Lee, 137 S.Ct. at 1966 (defendant's decision to plead guilty "may not turn solely on the likelihood of conviction after trial"); Flores-Ortega, 528 U.S. at 486 (possible merits of the forfeited appeal "may give weight to the contention that the defendant would have appealed, " but they are not required to "satisfy the prejudice requirement where there are other substantial reasons to believe that he would have appealed"); Hill, 474 U.S. at 59 (different outcome question relevant only to the extent it impacted decision to plead guilty). A prediction about the likely outcome of a trial is unnecessary and inappropriate in cases where the deficient performance is not "pertinent to a trial outcome, but is instead alleged to have affected a defendant's understanding of the consequences of his guilty plea." Lee, 137 S.Ct. at 1967, fn. 3.

         The dissenting opinions argue for application of Strickland's different outcome standard because Appellant had a court trial. They maintain that Hill's forfeited proceeding standard only applies to guilty pleas. But Strickland was a guilty plea, and Hill applied in Lafler v. Cooper, 566 U.S. 156, 164 (2012), where the defendant had a jury trial. "[I]t is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process." Id. at 170. Thus, choosing between Strickland's different outcome standard and Hill's forfeited proceeding standard does not depend on the simple guilty plea vs. trial formula.

         Even if the different outcome standard did apply here, the dissenting opinions misread Strickland in two ways.

         First, the dissent would ask whether a proceeding the defendant did not have would have been more favorable without the deficient performance; but Strickland asked whether the proceeding the defendant did have would have been more favorable without the deficient performance. 466 U.S. at 694. Consistent with that approach, Weaver v. Massachusetts, 137 S.Ct. 1899, 1911 (2017), an IAC claim based on the attorney's failure to object to a closed courtroom, required a reasonable probability of a different outcome in the trial the defendant had or a showing that the trial he had was fundamentally unfair; Weaver did not demand proof that a better outcome would have resulted from a hypothetical trial that was not had.

         A majority of the Supreme Court has explicitly refused to evaluate prejudice based on the likely outcomes of proceedings not had. See Lee, 137 S.Ct. at 1965 (when an attorney's deficient performance caused the defendant to accept a guilty plea instead of pursue a trial, "we do not ask whether, had he gone to trial, the result of that trial 'would have been different'"); Flores-Ortega, 528 U.S. at 483 (the likelihood of a better outcome from a forfeited proceeding is not the correct prejudice standard because such a proceeding enjoys no presumption of reliability). Such speculation is like asking "what might have occurred in an alternate universe." See United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006) (holding that proof of likelihood of a better outcome if a different attorney had represented the defendant was not required in case of denial of counsel of choice).

         Second, the dissent misapplies Strickland by requiring a reasonable likelihood of a specifically better outcome, i.e., probation. Strickland required only a generically better outcome. 466 U.S. at 694. Since "any amount of [additional] jail time has Sixth Amendment significance[, ]" Cooper, 566 U.S. at 165, quoting Glover v. United States, 531 U.S. 198, 203 (2001), requiring a likelihood of probation instead of merely a better outcome would impose an unconstitutional burden on the prejudice prong of ineffective assistance claims.

         Recer vs. Riley

         Although there is no Supreme Court authority for assessing prejudice by asking what might have happened in a trial that was never had, our own precedent has been inconsistent on this point. The competing views are presented by Recer and Riley.

         Recer, 815 S.W.2d 730, focused on the defendant's decision making in assessing prejudice from an attorney's bad advice about probation eligibility. To prevail on her claim of ineffective assistance Recer had to demonstrate that she was eligible for probation from the jury, her attorney's advice to elect the court for punishment was not based on a valid strategy, her decision to elect the judge for punishment was based on her attorney's bad advice, and she would have elected the jury for punishment but for her attorney's error. Id. at 731-32. She did not have to prove a likelihood of a different outcome from a hypothetical jury. Id.

         We later purported to follow Recer in Riley, 378 S.W.3d 453, but we tacked on an additional requirement: proof that "the results of the proceeding [not had] would have been different had [the defendant's] attorney correctly informed him of the law." 378 S.W.3d at 458 (citing Recer, 815 S.W.2d at 731-32). We imposed that additional requirement without any supporting authority or rationale.[1] Stare decisis would not require adherence to Riley because proving a better outcome from a proceeding never had is so speculative as to be unworkable. See Paulson v. State, 28 S.W.3d 570, 571-72 (Tex Crim App 2000) (goals of stare decisis not advanced by adhering to unworkable precedent) Additionally, Riley's own violation of stare decisis by silently overruling Recer undermines its precedential value See Paulson, 28 S.W.3d at 574 (Keller, J, concurring) (in deciding whether to overrule precedent "we should take into account whether the decision under consideration was itself a violation of the principles of stare decisis"). But regardless of its unworkability and its failure to adhere to precedent, we cannot follow Riley because we are bound by the rulings of the United States Supreme Court on this topic.

         The highest authority on federal constitutional law is the United States Supreme Court. Ex parte Evans, 537 S.W.3d 109, 111 (Tex. Crim. App. 2017), citing U.S. Const. art. VI, cl.2; Marbury v. Madison, 5 U.S. 137, 177-78, 1 Cranch 137, 2 L.Ed. 60 (1803); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999); State v. Guzman, 959 S.W.2d 631, 633 (Tex. Crim. App. 1998). Its pronouncements about federal constitutional law are binding on this Court. Evans, 537 S.W.3d at 111, citing Ex parte Ramey, 382 S.W.3d 396, 397 (Tex. Crim. App. 2012); Coronado v. State, 351 S.W.3d 315, 317 (Tex. Crim. App. 2011); Coble v. State, 330 S.W.3d 253, 270 (Tex. Crim. App. 2010). Claims of ineffective assistance of counsel are grounded in the federal constitution. Evans, 537 S.W.3d at 111, citing U.S. Const. amend. VI. Therefore, we are bound by the Supreme Court's opinions about ineffective assistance of counsel. Hill, Flores-Ortega and Lee hold that the correct measure of prejudice for an attorney's deficient performance that might have caused a defendant to waive a judicial proceeding is whether there is a reasonable likelihood that the defendant would have opted for the proceeding if his attorney had performed adequately. In the context of this case, Appellant would have to demonstrate a reasonable likelihood that he would have opted for a jury if his attorney had correctly advised him about his probation eligibility from the trial court. He would not have to demonstrate a reasonable likelihood that the jury trial he waived would have yielded a more favorable result than the court trial he had.

         Conclusion

         We overrule Riley to the extent that it conflicts with the Hill, Flores-Ortega and Lee line of cases, and we reaffirm our Recer opinion. We remand this case to the court of appeals for analysis of prejudice consistent with this opinion.[2]

          Newell, J., filed a concurring opinion in which Walker 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 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

         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 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 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 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]

         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.

          Keller, P.J., filed a dissenting opinion.

         The question before us is how to determine prejudice when counsel tells a defendant that he could get probation in a bench trial when, in fact, he could get probation only in a jury trial. The usual test for prejudice, articulated in Strickland v. Washington, is whether there is a reasonable probability that the result of the proceeding would have been different.[1] Applying this usual test would require asking whether the defendant would have actually obtained probation in a jury trial. However, the Court holds that a different prejudice standard applies, requiring a showing merely that the defendant would have opted for a jury trial. In support of this holding, the Court cites cases involving plea agreements and the failure to file an appeal.[2] Each of those cases involved the deprivation of an entire judicial proceeding: the deprivation of a trial or the deprivation of an appeal.[3]

         This case is different. Appellant pled "not guilty." He had a trial. It was a trial before a judge instead of a trial before a jury-arguably, the wrong kind of trial. But that means the cases cited by the Court are not directly on point. Instead, those cases are, at most, analogous to the present case, and so the question is whether we should treat a trial in which the defendant is deprived of a jury like the entire deprivation of a trial. In answering that question, an instructive case to examine is Weaver v. Massachusetts.[4]

         Weaver involved a claim that the defendant received the wrong kind of trial: a trial that was not open to the public.[5] The deprivation of a public trial is structural error.[6] The Supreme Court addressed whether the fact that the error was structural changed the way that a prejudice analysis in an ineffective-assistance claim was to be conducted.[7] The Court explained that "structural error" is the kind of error that, if preserved, results in reversal without a harm analysis.[8] The Court concluded, however, that the structural nature of an error did not necessarily dictate a deviation from the usual Strickland prejudice analysis.[9] The Court assumed, but did not decide, that the structural nature of an error might affect the Strickland prejudice analysis if one of the rationales for labeling a particular error as structural was that it rendered a trial fundamentally unfair and if that rationale were shown to be applicable in the defendant's case.[10] The Court ultimately concluded that the defendant had not made such a showing, and because the defendant had not met the traditional test for prejudice-showing a reasonable probability of a different outcome-the defendant was not entitled to relief.[11]

         Whether the underlying jury-trial violation in this case is a structural error is questionable, at best. The Supreme Court has recognized only "a very limited class of errors" as structural.[12] The constitutional right to a jury trial does not appear in the lists of structural error recited by the Supreme Court.[13] When a violation of the constitutional right to a jury trial occurs because an element of the offense has not been submitted to the jury, a harm analysis applies, [14] and, significantly, that harm analysis may appropriately focus on whether the jury would have found the element if it had been submitted.[15]

         Moreover, it is not clear that the constitutional right to a jury trial is implicated in this case. Appellant's claim is that he should have gotten a jury trial so that he would have a chance at getting probation. In noncapital cases, the federal constitutional right to a jury trial does not extend to the discretionary determination of what punishment to assess.[16] The right to a jury trial on the issue of probation is based solely in statute, [17] and a statutory error cannot be structural.[18]

         And Weaver illustrates that, even if the deprivation of a jury trial that was alleged to have occurred here were structural, the usual prejudice analysis under Strickland might still be appropriate. And even if a deviation from the usual prejudice analysis were warranted, it ...


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