Ex parte Lemke

• Decision Date: 08 March 2000
• Citation: 13 S.W.3d 791
• Parties: (Tex.Crim.App. 2000) EX PARTE JOHN LEMKE, Applicant NOS. 73594 - 73602
• Court: Texas Court of Criminal Appeals

Page 791

13 S.W.3d 791 (Tex.Crim.App. 2000)

EX PARTE JOHN LEMKE, Applicant

NOS. 73594 - 73602

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

March 8, 2000

On Application For a Writ Of Habeas Corpus from Jackson County

OPINION

Meyers, J., delivered the opinion of the Court, joined by Mansfield, Price, Holland, Womack, Johnson and Keasler, J.J.. Keller, J., concurs in Part I and otherwise joins the opinion. McCormick, P.J., concurs.

On December 13, 1993, applicant pled guilty to nine separate offenses: six for Unlawful Delivery of Cocaine and three for Possession of Cocaine. In exchange for his guilty pleas, the State recommended that applicant be sentenced to forty years confinement for each of the delivery offenses and twenty years confinement for each of the possession offenses, all to run concurrently. Applicant was sentenced in accordance with the State's recommendation.

On August 17, 1994, applicant filed in the district court an Application for Writ of Habeas Corpus (the "initial application"), alleging he was deprived of effective assistance of counsel on the ground that his trial lawyer had been disbarred at the time of his representation of applicant. The initial application was denied by this Court on May 17, 1995. Applicant filed in the district court a second application for writ of habeas corpus (the "instant application") on November 28, 1995.¹ In the instant application, applicant alleges he was denied effective assistance of counsel on the ground that his attorney did not inform him of plea bargain offers made by the State.² We ordered an evidentiary hearing and the trial court entered Findings of Fact. We dismissed the instant application on February 5, 1997. Applicant filed a Motion for Reconsideration (On the Court's Own Motion) of the Refusal to Grant Relief in Application for Writ of Habeas Corpus ("Motion for Reconsideration"), arguing thatthe instant application should not be barred as a "subsequent application" under Texas Code of Criminal Procedure article 11.07, section 4, because applicant did not become aware of the facts giving rise to the instant application until several months after the initial application was denied. We granted the Motion for Reconsideration and filed and set the instant application for submission.

I. Section 4

We initially address whether the instant application is barred as a "subsequent application" under Section 4, or whether it falls within an exception to such bar. Section 4 provides, in relevant part:

(a) If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application, challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application[.]

(c) For purposes of Subsection (a)(1), a factual basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.

TEX. CODE CRIM. PROC. art. 11.07 4. Thus, we are barred from considering the merits of the instant application unless the facts giving rise to the claims made in the instant application (the existence of the State's plea bargain offers) could not have been presented in the initial application because they were "not ascertainable through the exercise of reasonable diligence on or before" the date of the initial application.

On May 27, 1994, applicant's trial attorney, William Satterwhite, Jr., was indicted in Jackson County for falsely holding himself out as an attorney to applicant. TEX. PENAL CODE 38.122 (felony offense of Falsely Holding Oneself Out as a Lawyer); see Satterwhite v. State, 979 S.W.2d 626 (Tex. Crim. App. 1998)(affirming Satterwhite's conviction under section 38.122). In August of 1995, several months after this Court's denial of the initial application, applicant was bench warranted to Jackson County to testify against Satterwhite pursuant to the section 38.122 charges. During the course of preparing for such testimony, in a conversation with Jackson County District Attorney Robert E. Bell, the same district attorney who had prosecuted applicant's underlying conviction, applicant learned that the State had made two plea offers (for twenty and sixteen years) that were never communicated to him.³ Applicant testified that during his pending cases Satterwhite had repeatedly told him that there were no plea bargain offers on the table. Applicant's wife also testified that she was present during many discussions between applicant and Satterwhite and at no time during those meetings did Satterwhite inform applicant of any plea bargain offers by the State for sixteen and twenty years.

"Reasonable diligence" within the context of Section 4 has not been defined or explored by this Court. The term suggests at least some kind of inquiry has been made into the matter at issue. Cf. Anderson v. State, 621 S.W.2d 805, 809 (Tex. Crim. App. 1981)(in context of best evidence rule, stating that production of original document depends on circumstances of each case, the only requirement being that "all reasonable avenues of search should be explored to the extent that reasonable diligence under the circumstances would dictate" and holding that copy should be admitted where "a reasonable effort has been made to obtain the original and there is no suspicion that the copy might differ from the original" ); Jordan v. State, 520 S.W.2d 388 (Tex. Crim. App. 1975)(viewing "reasonable diligence" by grand jury as some inquiry of the relevant witnesses on the issue). In the instant case, the plea bargain offers were not made a part of the record, so any review of the record would not have uncoveredtheir existence. Applicant testified he asked Satterwhite during the pending cases whether the State had made any plea bargain offers, and Satterwhite told him repeatedly that the State had made no offers.⁴ A. Yes, I did. We hold applicant exercised "reasonable diligence" by making several inquiries of his lawyer as to the existence of plea bargain offers by the State. Applicant was not required to query the district attorney about the existence of a plea bargain offers when he had been assured by his attorney that there were none. Given that applicant had previously asked his attorney about the existence of plea bargain offers, was told that none were made, and applicant otherwise did not doubt his attorney's representations,⁵The point to this line of inquiry by the State is not clear. Perhaps they were trying to show that applicant had some reason to doubt Satterwhite's representations that there were no plea bargain offers. However, applicant's responses to Mr. Egg's inquiries demonstrate (1) that applicant had not been told about any plea bargain offers, and (2) that applicant viewed Mr. Egg as simply mistaken about the existence of a plea offer. applicant satisfied section 4's requirement of "reasonable diligence.

We conclude the instant application "contains sufficient specific facts establishing" that applicant's claim is one that could not have been presented in the initial application because the factual basis for the claim was "unavailable" (in that it was not ascertainable through the exercise of reasonable diligence) on the date the initial application was filed. We therefore address the merits of applicant's claim.

II. Ineffective Assistance of Counsel

In order to establish a claim for ineffective assistance of counsel, applicant must prove that (1) counsel's representation fell below an objective standard of reasonableness; and (2) counsel's deficient performance resulted in prejudice to the defense. Ex parte Wilson, 724 S.W.2d 72, 73 (Tex. Crim. App. 1987) (applying two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.E.2d 674 (1984)). Failure of defense counsel to inform a criminal defendant of plea offers made by the State is an omission that falls below an objective standard of professional reasonableness. Id. at 73-74 (failure of counsel to advise defendant of plea bargain offer by government constitutes "gross deviation from accepted professional standards"); see also United States v. Blaylock, 20 F.3d 1458, 1466 (9th Cir. 1994)(failure to communicate plea bargain offer constitutes unreasonable performance under prevailing professional standards); Johnson v. Duckworth, 793 F.2d 898, 902 (7th Cir.) (recognizingdefense attorneys have duty to inform clients of plea agreements proffered by state and failure to do so constitutes ineffective assistance), cert. denied, 479 U.S. 937 (1986); United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 438 (3rd Cir. 1982)(failure to communicate plea bargain offer is denial of 6th and 14th amendment rights); Barentine v. United States, 728 F. Supp. 1241, 1251 (W.D.N.C.)("federal courts have been unanimous in finding that [defense counsel's failure to inform the defendant of a plea offer] constitutes a violation of the defendant's Sixth Amendment constitutional right to effective assistance of counsel"), aff'd, 908 F.2d 968 (4th Cir. 1990).

In its Findings of Fact on the instant application, the trial court found that (1) prior to applicant's guilty pleas, the State had conveyed to applicant's attorney a plea bargain offer of twenty years and an amended plea bargain offer of sixteen years; (2) applicant's attorney never advised applicant of the State's plea bargain offers of twenty and sixteen years; (3) applicant would have accepted the State's proposed plea bargain offer of twenty years, if it had been conveyed...