Ex parte Gibauitch

• Decision Date: 01 May 1985
• Docket Number: No. 69248,69248
• Parties: Ex parte Lawrence Anthony GIBAUITCH.
• Court: Texas Court of Criminal Appeals

Page 868

688 S.W.2d 868

Ex parte Lawrence Anthony GIBAUITCH.

No. 69248.

Court of Criminal Appeals of Texas,

En Banc.

May 1, 1985.

Lawrence Anthony Gibauitch, pro se.

John B. Holmes, Jr., Dist. Atty., and Eleanor Montague McCarthy, Asst. Dist.

Atty., Houston, Robert Huttash, State's Atty., Austin, for the State

Before the court en banc.

OPINION

PER CURIAM.

This is a post-conviction application for habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.

Applicant was indicted for the offense of delivery of 400 grams or more of cocaine, alleged to have occurred on December 7, 1981. By agreement with the State, applicant pled guilty to the offense of possession of 400 grams or more of cocaine. There was no plea bargain as to punishment. After the pre-sentence investigation, the court assessed punishment at sixteen years. The Fourteenth Court of Appeals (Houston) affirmed the conviction in an unpublished per curiam opinion delivered May 12, 1983 (No. A14-82-702-CR).

At the plea proceeding on August 9, 1982, the trial court admonished applicant that the penalty range for possession of cocaine in the amount alleged was confinement for a term of not less than ten years, nor more than ninety-nine years, or life, and that the court could also assess a fine not to exceed $100,000.00.

The trial court's admonishment accurately stated the punishment range for the offense as set out in the 1981 amendment ¹ to the Texas Controlled Substances Act, Art. 4476-15, V.A.C.S.

In Ex parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1983), we held the 1981 amendment unconstitutional. As a result, applicant's offense at the time of his plea was subject to the penalty set by the law before the void 1981 amendment. That penalty was second-degree felony punishment: ² confinement for any term of not more than 20 years or less than 2 years, and a possible fine not to exceed $10,000.00.

Invoking Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed. 747 (1970) and Art. 26.13, V.A.C.C.P., applicant makes his claim as follows:

"[Applicant] having been tried and convicted under a statute in which he thought he could have received a sentence of life or ninety-nine (99) years, [applicant] would have decided, because of trial strategy, to have his case tried before a jury rather than the trial court, had he known the minimum punishment was two (2) years and the maximum penal punishment was twenty (20) years. It is not an [sic] 'knowingly and intelligent act' ... 'with sufficient awareness of the relevant circumstances and likely consequences,' to plead guilty and receive a sixteen (16) year sentence, when the only possible maximum penal punishment was twenty (20) years and then relinquish one's constitutional rights."

The State's answer denies that applicant's plea was unknowing or involuntary. At the habeas hearing applicant offered no evidence about any alternative or abandoned trial strategy. Instead, the only evidence applicant offered on the admonishment issue was the statement of facts from the plea proceeding, which contained the record of the admonishment given, and his own testimony that, had he known that the "actual" range of punishment was from two to twenty years, he would not have pled guilty.

Article 26.13, supra, provides in pertinent part:

"(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:

"(1) the range of punishment attached to the offense;

"...

"(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court."

Article 26.13 requires reversal of the conviction when the trial court wholly fails to admonish the defendant concerning punishment. Ex parte McAtee, 599 S.W.2d 335 (Tex.Cr.App.1980); Whitten v. State, 587 S.W.2d 156 (Tex.Cr.App.1979).

On the other hand, when the record shows that the trial court gave an admonishment that was incomplete or incorrect, there is a prima facie showing of a knowing and voluntary plea of guilty. The burden then shifts to the defendant to show that he entered the plea without understanding the consequences of his action and thus was harmed. DeVary v. State, 615 S.W.2d 739 (Tex.Cr.App.1981); Ex parte McAtee, supra. See also Taylor v. State, 610 S.W.2d 471 (Tex.Cr.App.1981), Borrego v. State, 558 S.W.2d 1 (Tex.Cr.App.1977), and Adams v. State, 630 S.W.2d 806 (Tex.App.--Houston [1st Dist] 1982 no pet.)

In Ex parte Smith, 678 S.W.2d 78 (Tex.Cr.App.1984), defendant pled guilty to delivery of marihuana of less than five pounds but more than four ounces. Defendant was convicted for the offense on September 16, 1983, two days after our decision in Ex parte Crisp, supra. ³ Defendant was admonished that the penalty range was not less than two years nor more than twenty years confinement. But as a result of Crisp, the penalty applicable to the offense was not less than two nor more than ten years. Defendant had a plea bargain with the State, and was assessed punishment of not less than two nor more than eight years.

This Court stated that "there can be no question that the admonishment was not proper." The Court noted that defendant alleged under oath he would not have entered the plea bargain if he had known the maximum penalty was only one-half of what he was told, and that this allegation was not contradicted. The Court concluded that defendant was not aware of the consequences of his plea, that he was harmed by the court's admonishment, and further, under all the circumstances, the guilty plea was not knowingly and voluntarily entered.

Under Brady v. United States, supra, the standard of voluntariness of guilty pleas requires full awareness of the direct consequences, including the actual value of any commitments made to the defendant by the court, the prosecutor, or his own counsel. In Smith, supra, defendant was unable to appreciate the actual value of his plea bargain because the maximum punishment he risked without the bargain was overstated to him.

There was a plea bargain also in Hurwitz v. State, --- S.W.2d ---- (No. 742-84, Tex.Cr.App., delivered April 10, 1985). A two-count indictment charged defendant with possessing more than fifty pounds of marihuana, and with possessing more than five but less than fifty. Defendant pled guilty to possession of more than five but less than fifty. Under H.B. 730 that offense was a second-degree felony, and the trial court accurately admonished defendant of the punishment range. As a result of Crisp, supra, the offense was a third degree felony. Thus the trial court admonished defendant that the maximum punishment for the offense was twenty years, when in fact the maximum was ten years. Pursuant to the plea bargain, the trial court assessed two years--the minimum under both H.B. 730 and the pre-amendment law.

On appeal, defendant argued that his plea was rendered involuntary because of the improper admonishment. The Court of Appeals and this Court rejected that contention. Following the Court of Appeals in distinguishing the case from Ex parte Smith, supra, we wrote:

"Appellant filed a pre-trial motion to quash the indictment which was based solely upon the Third Court of Appeals opinion in Crisp v. State, 643 S.W.2d 487 (Tex.App.--Austin 1982). The hearing on this motion occurred after this Court had granted the State's petition for discretionary review in Crisp. The record reflects extensive discussion between the Court, the State, and defense counsel concerning the unsettled state of the law until this Court rendered its decision in Crisp. As the court of appeals pointed out in its decision, it was apparent to everyone that appellant was charged with either a third-degree felony or, alternatively, aggravated possession (Count I), and a second-degree felony (Count II), depending on this Court's holding in Crisp.

"Appellant very clearly had this knowledge when he entered into his plea bargain agreement with the State...."

We then quoted with approval the reasoning of the Court of Appeals:

"While we may conclude that appellant's decision as to his plea to be entered may have been rendered more burdensome by the unsettled state of the law, we cannot conclude that he was misled or harmed by the court's admonishment, which the record reflects he knew might or might not be correct. It is equally clear, as to his knowledge of the consequences of his plea, that he was aware that he had bargained for the minimum punishment available, regardless of the uncertainty as to whether the offense was a second- or third-degree felony." (Emphasis in original.)

Thus the defendant in Hurwitz was able to evaluate his bargain correctly. Even though the value of the bargain was contingent upon the ultimate resolution of the Crisp issue, defendant knew this. He was able to factor the contingency into his calculation of the relative benefit to him of waiving jury trial and pleading guilty in exchange for an agreed punishment.

We note that there is some dispute whether an admonishment that accurately recites the applicable penalty range of H.B. 730 is improper. See Hurwitz, supra (Clinton, J., concurring). Presumably all are agreed, however, that such an admonishment constitutes at least substantial compliance with Art. 26.13, supra. Ex parte Smith, supra; Hurwitz, supra. The burden is then on applicant to show harm. Devary, supra; Ex parte McAtee, supra.

In the instant case, the trial court found as a fact that there was no plea bargain on punishment. The record of the plea proceeding clearly reflects that both applicant and his lawyer acknowledged to the trial court that there was no plea bargain. Applicant testified at the habeas hearing that when he went before the trial judge and entered his plea of guilty, he did not know what punishment the judge was going to assess. He further...