Ex parte Hill

• Decision Date: 20 October 2021
• Docket Number: NOS. WR-83,074-04 , WR-83,074-05,S. WR-83,074-04
• Citation: 632 S.W.3d 547
• Parties: EX PARTE Michael Charles HILL, Applicant
• Court: Texas Court of Criminal Appeals

632 S.W.3d 547

EX PARTE Michael Charles HILL, Applicant

NOS. WR-83,074-04
WR-83,074-05

Court of Criminal Appeals of Texas.

Delivered: October 20, 2021

Robert Udashen, Dallas, for Applicant.

OPINION

Hervey, J., delivered the opinion of the Court in which Richardson, Newell, Keel, Walker, and McClure, JJ., joined.

632 S.W.3d 550

Applicant, Michael Charles Hill, was convicted of second-degree felony sexual assault of a child and indecency with a child by contact. Based on an enhancement, he was automatically sentenced to life imprisonment for the sexual-assault offense, and his punishment range for the indecency offense was enhanced to that of a first-degree felony. The jury sentenced him to life imprisonment. This Court subsequently vacated Applicant's enhancing conviction on involuntary-plea grounds. Applicant now argues that his enhanced life sentences are illegal and that he should be resentenced. We filed and set his application for submission. The parties briefed the following issues,

(1) Whether a defendant's failure to object at the time of trial to the use of a prior enhancing conviction forfeits error, particularly in the context of sex offenses; TEX. CODE CRIM. PROC. Art. 1.14(b) ; TEX. PENAL CODE § 12.42(c)(2), (g) ; see Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006) ; Ex parte Patterson, 969 S.W.2d 16 (Tex. Crim. App. 1998, op. on reh'g) ;

(2) Whether vacating a prior enhancing conviction that was final at the time of the subsequent conviction and sentence affects the validity of the subsequent sentence, particularly in the context of sex offenses; Anderson v. State, 394 S.W.3d 531 (Tex. Crim. App. 2013) ;

(3) Whether the use of a prior enhancing conviction that does not increase the punishment range causes harm; see Ex parte Parrott, 396 S.W.3d 531 (Tex. Crim App. 2013) ; and

(4) Whether a claim concerning the use of a prior enhancing conviction, when that conviction is later vacated, is barred by the equitable doctrine of laches.

The habeas court recommends that we deny relief. We conclude that Applicant is entitled to be resentenced for aggravated sexual assault but not indecency with a child.

I. PROCEDURAL HISTORY

Applicant was convicted of sexual assault of a child and indecency with a child by contact (the primary offenses), both second-degree felonies. TEX. PENAL CODE § 22.011(a)(2). The punishment range for a second-degree felony is two to twenty years’ imprisonment. Id. § 12.33(a). The State, however, sought enhanced sentences based on a previous aggravated-sexual-assault conviction from 2000 in Dallas County (the enhancing conviction), which the jury found to be true. Id. § 22.021. The enhanced punishment for sexual assault of a child was fixed by law at life imprisonment. Id. § 12.42(c)(2). Applicant's punishment range for the indecency offense was elevated into the first-degree felony range, subjecting him to confinement for five to ninety-nine years or life. Id. § 12.42(b). The jury sentenced him to life imprisonment, and the judge stacked the sentences,

632 S.W.3d 551

Primary Offenses (2012)
Sexual Assault of a Child (2nd degree felony)	TEX. PENAL CODE §§ 22.011(a)(2), 12.42(c)(2)	Automatic life imprisonment
Indecency by Contact (2nd degree felony)	TEX. PENAL CODE §§ 21.11, 12.42(b)	Life imprisonment
Enhancing Offense (2000)
Aggravated Sexual Assault (2nd degree felony)	TEX. PENAL CODE § 22.021(a)(1)

Applicant appealed to the Sixth Court of Appeals, arguing that the evidence was legally insufficient and that the State failed to give proper notice of its intent to enhance his punishments with a prior felony conviction.¹ The court overruled both points of error, and Applicant did not file a petition for discretionary review in either case. Because the facts pertaining to the offenses are not necessary to the resolution of this case, we do not discuss them.

II. LACHES

The purpose of the laches doctrine is "to consider whether an applicant has slept on his rights and, if he has, how that has affected the State, and whether, in light of the delay, it is fair and just to grant him relief." Ex parte Perez , 398 S.W.3d 206, 218–19 (Tex. Crim. App. 2013). If laches applies, we will not consider an applicant's claims and will deny relief. Ex parte Saenz , 491 S.W.3d 819, 826 (Tex. Crim. App. 2016). Laches does not apply when,

• an applicant's delay was not unreasonable because it was due to a justifiable excuse or excusable neglect;

• the State would not be materially prejudiced as a result of the delay; or

• the applicant is entitled to equitable relief for other compelling reasons, such as new evidence that shows he is actually innocent of the offense or, in some cases, that he is reasonably likely to prevail on the merits.

Perez , 398 S.W.3d at 218. When determining whether laches applies, we examine each case on its own facts, considering the totality of the circumstances. Id. at 216.

a. Challenging the Enhancing Conviction

According to postconviction counsel, he was hired about six months after Applicant's enhanced life sentences were affirmed on direct appeal, and he immediately began investigating the enhancing conviction. In September 2014, Applicant filed his initial habeas application. Postconviction counsel filed a "bare bones" application in which he sought and obtained access to the Dallas County District Attorney's work product.² (Counsel claimed that

632 S.W.3d 552

the district attorney at the time required a court order before allowing defense counsel to examine the State's trial work product as part of a postconviction investigation.) According to counsel, he discovered evidence of a Brady violation and ineffective assistance of counsel, and he began collecting records to support those claims. He also asserts that he was finally able to locate the victim in November 2014 and that she signed an affidavit recanting her allegations. Counsel subsequently asked this Court to dismiss the application for further investigation. We dismissed the application in April 2015.³

In December 2015, Applicant filed a second habeas application in which he argued that he was actually innocent based on the victim's recantation. Approximately six weeks after the application was filed, the Dallas County District Attorney's Office's Conviction Integrity Unit (Unit) contacted counsel and offered to review Applicant's case. Applicant agreed and asked this Court to dismiss his second application, which we did in June 2016.

In September 2016, Applicant filed a third habeas application, arguing (1) that he was actually innocent based on the postconviction recantation, (2) that he was entitled to a new trial because the State failed to disclose the victim's pretrial recantation, and (3) that his guilty plea was involuntary because he would not have pled guilty had the pretrial recantation been disclosed. In December 2016, we remanded the case for an evidentiary hearing, and while the case was on remand, the victim recanted her postconviction recantation from November 2014. Applicant subsequently filed an amended habeas application in which he abandoned the actual-innocence claim based on the postconviction recantation. He continued to advance, however, the Brady and involuntary-plea claims based on the suppressed pretrial recantation. He also added two additional claims: (1) an ineffective-assistance-of-counsel claim based on trial counsel's failure to obtain the medical records documenting the pretrial recantation⁴ and (2) another Brady allegation based on the State's failure to disclose that the victim lied to police on multiple occasions.⁵ Over

632 S.W.3d 553

one year after we remanded the case, the habeas court returned the record to this Court in March 2018. The habeas court recommended that we grant relief on Applicant's involuntary-plea claim in light of the Brady violations. We did so in May 2018 and set aside Applicant's enhancing conviction.

b. Challenging The Primary Offenses

In November 2018, postconviction counsel filed two writ applications, one for each conviction, arguing that his enhanced life sentences are illegal and that he received ineffective assistance of counsel because, among other things, trial counsel failed to investigate the validity of the enhancement conviction from 2000. In June 2019, we remanded the case again. In our order, we agreed that Applicant's failure to object at trial did not forfeit his illegal-sentence claims and that his enhanced life sentences are now known to be illegal, but we remanded the case one more time to determine whether Applicant's illegal sentences harmed him. Ex parte Hill , Nos. WR-83,074-04 & WR-83,074-05, 2019 WL 2607173, *1 (Tex. Crim. App. June 26, 2019) (per curiam) (not designated for publication) (citing Parrott , 396 S.W.3d at 533 ).

The habeas court found that Applicant's indecency-with-a-child sentence could still be enhanced into the first-degree felony punishment range using a prior second-degree felony theft conviction but that Applicant's sexual-assault-of-a-child sentence could no longer be enhanced to automatic life imprisonment. It could only be punished as a first-degree felony. After the record was returned to this Court, we filed and set Applicant's application for submission.

c. Analysis

The parties agree that Applicant has timely raised his illegal-sentence claims. The State argues, however, that we should nonetheless apply laches because of Applicant's years of delay in seeking to have his enhancement conviction set aside. Applicant responds that his delay in challenging that conviction is no longer the issue because this Court has already overturned that conviction without mentioning laches. The only issue now, Applicant contends, is whether his illegal-sentence claims were timely raised.

We agree with Applicant. While we have said that all equities of the case should be considered, the equities of this case weigh in favor of not applying laches to Applicant's illegal-sentence claims. Perez , 398 S.W.3d at 217. The appropriate time to apply laches...