Ex parte Moody

• Decision Date: 12 May 1999
• Docket Number: No. 73162,73162
• Citation: 991 S.W.2d 856
• Parties: Ex parte Bobby Joe MOODY, Applicant.
• Court: Texas Court of Criminal Appeals

Page 856

991 S.W.2d 856

Ex parte Bobby Joe MOODY, Applicant.

No. 73162.

Court of Criminal Appeals of Texas.

May 12, 1999.

Bobby Joe Moody, Snyder, pro se.

Tom O'Connel, District Attorney, McKinney, Matthew Paul, State's Atty., Austin, for the State.

OPINION

MEYERS, J., delivered the opinion of the court in which MANSFIELD, KELLER, PRICE, WOMACK, JOHNSON, and KEASLER, JJ., joined.

This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07 of the Texas Code of Criminal Procedure. Applicant was convicted of possession of a controlled substance. Pursuant to a plea bargain, the court assessed punishment at fifteen years imprisonment. Appellant did not appeal this conviction.

Applicant was arrested for possession of a controlled substance in Collin County in May of 1995. While on bond, Applicant was also arrested in Collin County for a federal offense committed on October 27, 1995. Applicant was indicted in federal court and taken into federal custody. On May 5, 1996, the federal judge sentenced Applicant to serve 151 months in the Federal Bureau of Prisons and delivered him to a federal holding facility. Prior to serving his federal sentence, Applicant was transferred to Collin County to resolve the instant case.

The district attorney offered a plea bargain, for fifteen years confinement, which made no representations regarding Applicant's federal sentence. Applicant's attorney, after consulting Applicant's federal public defender, informed Applicant that after pleading to the state offense, he would be returned to federal custody to serve both sentences concurrently. Based on his attorney's estimates of federal and state parole eligibility, which indicated that by the time Applicant was released from federal custody he would have little obligation to serve further time on his state charge in the Texas Department of Criminal Justice, Applicant opted to plead guilty.

Applicant was sentenced in the state case on June 14, 1996. Applicant's trial attorney again assured him that his state and federal sentences would run concurrently. After the period for filing a motion for new trial expired, Applicant's attorney learned that Applicant had been transferred to the Texas Department of Criminal Justice and that Applicant's federal sentence would not begin until his release from the state institution and return to federal custody. Applicant now contends his guilty plea was involuntary, due to ineffective assistance of counsel, because he relied on erroneous advice from his attorney.

The trial court entered findings of fact and conclusions of law in which it determined:

Applicant entered his plea after a representation by defense counsel that he would be returned to federal custody after he entered his plea and that the state and federal sentences would run concurrent. This representation was unknown to the Court and not discussed at the formal plea hearing.

Except for the above representations relating to a federal charge, Applicant entered his plea freely, voluntarily and competently.

The State urges that Applicant's plea was voluntary, because the plea bargain did not refer to Applicant's federal sentence and there were no agreements regarding that sentence. We filed and set this application to determine whether Applicant's plea, based on his attorney's erroneous advice without the knowledge or assent of the State or court, was involuntary.

When a defendant challenges the voluntariness of a plea entered upon the advice of counsel, contending that his counsel was ineffective, "the voluntariness of the plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Ex Parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App.1997), citing Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203, (1985); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); and McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). As with other types of ineffective assistance of counsel claims, Applicant has the burden to show that counsel's performance fell below a reasonable standard of competence and that Applicant would, with a reasonable probability, have pled not guilty and insisted on going to trial had he been properly advised of how his federal and state sentences would interact.

First we examine trial counsel's performance. In assessing competence, we have held counsel accountable for knowledge, or the ability to attain knowledge, of relevant legal matters that are neither novel nor unsettled. Ex Parte Welch, 981 S.W.2d 183 (Tex.Crim.App.1998). The manner in which Applicant would serve his sentences is ascertainable, as it is a matter of law. See generally, 18 U.S.C. §§ 3585, 3621 (1998); TEX.CODE CRIM. PROC. Art. 42.01. In this case, Applicant was particularly concerned about whether his sentences would run concurrently or consecutively. Counsel had the obligation to provide Applicant with accurate information, and on multiple occasions specifically assured Applicant that he would be transferred to federal custody to serve his two sentences concurrently. We cannot conclude that counsel's mistake regarding the operation of Applicant's sentences was within the range of competence for a criminal attorney.

Our next inquiry is whether Applicant's decision to plead guilty was a result of that counsel's deficient advice. We consider the circumstances surrounding the plea and the gravity of the misrepresentation material to that determination. Even when a defendant wholly relies upon erroneous...