Cantu v. State

• Decision Date: 18 September 1996
• Docket Number: Nos. 598-95,599-95,s. 598-95
• Parties: Oscar CANTU, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 594

930 S.W.2d 594

Oscar CANTU, Appellant, v. The STATE of Texas, Appellee.

Nos. 598-95, 599-95.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 18, 1996.

Juan Villescas, Pharr, Dorina Ramos, McAllen, for appellant.

Matthew Paul, Asst. State's Atty., Austin, for State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge.

Appellant was convicted of murder and two counts of aggravated assault on a peace officer. Before the court of appeals, appellant argued that he was deprived of his constitutional right to the assistance of counsel for two reasons: (1) that his attorney, Dan Longoria, committed errors resulting in actual prejudice to appellant under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and (2) that the attorney's suspension from the practice of law before trial constituted a per se denial of appellant's right to counsel. The court of appeals reversed on the latter basis. The court formulated a substantive/technical dichotomy: it held that a per se violation of the Sixth Amendment exists where the attorney was suspended or disbarred for substantive disciplinary infractions but not where the attorney was suspended for mere technical violations. Holding that Longoria's suspension was for substantive reasons, the court of appeals found a per se violation of the right to counsel. The State petitioned for discretionary review. We will reverse.

The facts surrounding appellant's claims were presented in a hearing on appellant's motion for new trial. Several witnesses, including Longoria, testified at the hearing. Because the trial court was in a position to evaluate the credibility of the witnesses, we view the evidence in the light most favorable to the trial court's ruling. Vuong v. State, 830 S.W.2d 929, 938 (Tex.Crim.App.), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992). Harris v. State, 827 S.W.2d 949, 955 (Tex.Crim.App.), cert. denied, 506 U.S. 942, 113 S.Ct. 381, 121 L.Ed.2d 292 (1992).

In the light most favorable to the trial court's ruling, the evidence shows the following: Longoria was suspended from the practice of law for failing to respond to demands from the State Bar Grievance Committee for information. In suspending him, the Committee found a pattern of failure to respond or react. The suspension did not relate to Longoria's performance in the courtroom. Notice of the suspension was sent by certified mail on May 28, 1993, and was received at Longoria's address on June 3. However, Longoria did not open his mail because he was preparing for trial; he remained unaware of the suspension until he was personally served on June 15. Appellant's trial took place from June 7 to June 11. The Committee judgment provided that the suspension would begin on June 1--six days before appellant's trial. While a grievance committee may stay a suspension, pending appeal, if it finds that the respondent attorney "does not pose a continuing threat to the welfare of Respondent's clients or to the public," Tex.R.Disc.P. 2.21, no such finding was made in the present case.

The question in the case before us is whether Longoria's suspension caused appellant a complete denial of the right to counsel. If so, appellant would be relieved of the Strickland requirements of showing specific attorney errors and prejudice. 466 U.S. at 692, 104 S.Ct. at 2067 (where a defendant suffers the "actual or constructive denial of counsel altogether" then prejudice is presumed). Because we face a question of first impression, we look to other jurisdictions for guidance.

It has been uniformly recognized that a layman masquerading as an attorney--that is, one who has never been a licensed attorney in any jurisdiction--can never be considered "counsel" under the Sixth Amendment regardless of the skill exercised by the layman. Solina v. United States, 709 F.2d 160 (2nd Cir.1983). Vance v. Lehman, 64 F.3d 119, 122 (3rd Cir.1995) (citing cases), cert. denied sub. nom., Vance v. Horn, --- U.S. ----, 116 S.Ct. 736, 133 L.Ed.2d 686 (1996). Bond v. United States, 1 F.3d 631, 637 (7th Cir.1993). United States v. Hoffman, 733 F.2d 596, 599-600 (9th Cir.1984) (citing cases), cert. denied, 469 U.S. 1039, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984). People v. Allen, 220 Ill.App.3d 772, 162 Ill.Dec. 872, 879, 580 N.E.2d 1291, 1298 (1991), appeal denied, 147 Ill.2d 629, 180 Ill.Dec. 152, 606 N.E.2d 1229 (1992). Commonwealth v. Thibeault, 28 Mass.App.Ct. 787, 556 N.E.2d 403, 405 (1990) (citing cases). State v. Smith, 476 N.W.2d 511, 513 (Minn.1991). ¹ On the other hand American jurisdictions have also uniformly held that a defendant is not denied counsel merely because his attorney was under suspension for a mere technical defect or violation. Hunnicutt v. State, 531 S.W.2d 618, 623-624 (Tex.Crim.App.1976), overruled on other grounds, Hurley v. State, 606 S.W.2d 887, 890 (Tex.Crim.App.1980). Vance, 64 F.3d at 123 n. 1 (citing cases). State v. Green, 274 N.J.Super. 15, 643 A.2d 18, 24 (citing cases), certif. denied, 137 N.J. 312, 645 A.2d 141 (1994). ² The question confronted in the present case, however, is how to classify and evaluate situations which fall in between these two extremes.

The Supreme Court of Michigan has recently rejected a substantive/technical distinction espoused by Michigan's intermediate appellate court. People v. Pubrat, 451 Mich. 589, 548 N.W.2d 595, 598-599 (1996), reversing, 206 Mich.App. 340, 520 N.W.2d 724 (1994). Likewise, other courts confronting the issue have refused to apply such a distinction. Waterhouse v. Rodriguez, 848 F.2d 375 (2nd Cir.1988) (no Sixth Amendment violation despite the fact that attorney had been disbarred for misappropriating client funds and for failing to represent clients after accepting fees). United States v. Mouzin, 785 F.2d 682 (9th Cir.) (no Sixth Amendment violation despite the fact that attorney had been disbarred for failing to meet deadlines in pending appeals, failing to prosecute an appeal, and giving an insufficient check in payment for court reporter services), cert. denied sub. nom., Carvajal v. United States, 479 U.S. 985, 107 S.Ct. 574, 93 L.Ed.2d 577 (1986). United States v. Stevens, 978 F.2d 565 (10th Cir.1992) (disbarred attorney posed no Sixth Amendment problem where he was unaware of disbarment until after trial). People v. Johnson, 273 Cal.Rptr. 446 (Cal.App.1990) (no Sixth Amendment violation despite the fact that attorney had been suspended for committing upon a child a forcible lewd act, a crime of moral turpitude), rev'd on other grounds sub. nom., In re Johnson, 1 Cal.4th 689, 4 Cal.Rptr.2d 170, 822 P.2d 1317 (1992). Thibeault, 556 N.E.2d at 404-407 (no Sixth Amendment violation despite the fact that attorney had been suspended because he had been convicted of the crime of receiving stolen property), cited favorably by Commonwealth v. McGuire, 421 Mass. 236, 656 N.E.2d 895, 896 (1995) (also citing Waterhouse and Mouzin). Allen, 162 Ill.Dec. at 879-81, 580 N.E.2d at 1298-1300 (no Sixth Amendment violation despite the fact that attorney had been suspended for failing to file an appellate brief on behalf of a defendant in an unrelated criminal case). Smith, 476 N.W.2d at 512-517 (no Sixth Amendment violation despite the fact that attorney had been suspended for misappropriating client funds, failing to maintain trust account records, neglect of client matters, failing to return client documents promptly, and failing to communicate adequately with clients).

To determine accurately the effect of an attorney's suspension or disbarment for substantive reasons on his client's Sixth Amendment rights, it is helpful to examine the reasons for denying "counsel" status to one who has never been licensed and to explore how courts have addressed these reasons in the context of suspended or disbarred attorneys. Courts have given four different reasons for finding a per se violation of the Sixth Amendment when a defendant is represented by a layman (one who has never been licensed): (1) to validate jurisdictional concerns, (2) to prevent conflicts of interest, (3) to maintain confidence in the judicial system, and (4) to safeguard against incompetent representation.

Jurisdictional concerns associated with a non-licensed individual were first enunciated by the Second Circuit in Solina. The court discussed the Supreme Court decision of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) as advancing the "somewhat surprising thesis that absence of counsel constituted a jurisdictional defect." Solina, 709 F.2d at 169. The Second Circuit concluded that the jurisdictional nature of the right to counsel required the application of a per se rule of reversal whenever a defendant is represented by someone who has never been licensed to practice law in any jurisdiction. Id. at 168.

Although the "jurisdictional" rationale remains in use, courts have refused to apply it to attorneys who were initially validly licensed but were later suspended or disbarred. The Second Circuit has applied its per se rule in limited circumstances and "without enthusiasm." Bellamy v. Cogdell, 974 F.2d 302, 306 (2nd Cir.1992), cert. denied, 507 U.S. 960, 113 S.Ct. 1383, 122 L.Ed.2d 759 (1993). See also Thibeault, 556 N.E.2d at 406. Subsequent to Solina, the Second Circuit has distanced itself from the "jurisdictional" argument when considering the effects of suspension or disbarment and has relied upon what it termed Solina 's "alternative rationale" (conflict of interest--see below). Waterhouse, 848 F.2d at 382-383. See also Johnson, 273 Cal.Rptr. at 454. The court has also explained that "disbarment is not necessarily the equivalent of nonadmission." Novak, 903 F.2d at 889. Other courts have emphasized that the never-been-licensed person cannot provide the effective assistance of counsel because he has "never acquired the threshold qualification to represent a client." Mouzin, 785 F.2d at...