Ex Parte Rich

• Decision Date: 07 June 2006
• Docket Number: No. AP-75112.,AP-75112.
• Citation: 194 S.W.3d 508
• Parties: Ex parte David Allen RICH, Applicant.
• Court: Texas Court of Criminal Appeals

194 S.W.3d 508

Ex parte David Allen RICH, Applicant.

No. AP-75112.

Court of Criminal Appeals of Texas.

June 7, 2006.

Joseph F. Zellmer, Denton, for Appellant.

Kathleen A. Walsh, District Atty., Denton, Matthew Paul, State's Atty., Austin, for State.

OPINION

MEYERS, J., delivered the opinion of the Court, in which PRICE, KEASLER, HERVEY, and HOLCOMB, JJ., joined.

The issue we decide today is whether Applicant should be allowed to raise a claim of illegal sentence based on an improper enhancement for the first time on a writ of habeas corpus, or whether such claim is forfeited by: 1) Applicant's failure to raise it on direct appeal; or 2) Applicant's plea of true to such enhancements during the plea proceedings. We conclude that Applicant may raise such a claim and that, in this case, he is entitled to relief.

Facts

Applicant David Alan Rich¹ was charged with felony driving while intoxicated. The indictment contained two enhancement paragraphs which alleged prior convictions for two felony offenses, delivery of a controlled substance (cause number F-76-10016HL) and injury to an elderly person (cause number 93-42604). In 2002, Applicant pleaded guilty to the offense and true to the enhancement paragraphs pursuant to a plea-bargain agreement. The trial court enhanced his punishment under the habitual-offender provision of Texas Penal Code § 12.42(d) and imposed a sentence of 25 years' confinement in the Texas Department of Criminal Justice — Correctional Institutions Division.² No direct appeal was taken.

Applicant filed an application for a writ of habeas corpus claiming that he received ineffective assistance of counsel as a result of his attorney's failure to investigate the prior convictions used for enhancement. In its Findings of Fact and Conclusions of Law, the trial court determined that Applicant had not been convicted of a felony for the delivery of a controlled substance offense (cause number F-76-10016HL) because the charge was reduced to a misdemeanor after a motion for a new trial was granted. Since a misdemeanor conviction had been improperly used to enhance his sentence, the trial court concluded that the sentence itself was illegal. Despite this finding, the trial court determined that trial counsel's investigation of the prior convictions was reasonable based on the information available and that Applicant had received effective assistance of counsel at trial.

Subsequently, this Court entered an order requiring the trial court to determine whether there were any other prior felony convictions that could have been substituted for the misdemeanor that was improperly used for enhancement. The trial court filed Supplemental Findings of Fact and Conclusions of Law, finding that neither of Applicant's other prior felony convictions could have been properly substituted for the prior misdemeanor conviction. The trial court concluded that Applicant's third-degree felony could have been enhanced to a second-degree felony, at most. The range of punishment for a second-degree felony is 2 to 20 years pursuant to Texas Penal Code § 12.42(a)(3).

Issue Presented

Both Applicant and the State agree that Applicant has not forfeited his claim of illegal sentence based on an improper enhancement, but they base their arguments on different grounds. We agree with the State that "a defect that renders a sentence void may be raised at any time,"³ and we reject Applicant's contention that his claim is one of actual innocence with regard to the improper enhancement paragraph. We conclude that Applicant may raise his claim for the first time on an application for a writ of habeas corpus, even though he failed to raise the issue on direct appeal and pleaded true to the enhancement paragraphs.

Analysis

Under Article 11.07 of the Texas Code of Criminal Procedure, post-conviction habeas relief is available for claims involving jurisdictional defects and violations of fundamental or constitutional rights. See Ex parte McCain, 67 S.W.3d 204, 210 (Tex.Crim.App.2002). We have long held that a claim of an illegal sentence is cognizable on a writ of habeas corpus. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim.App.2003); Ex parte Pena, 71 S.W.3d at 336-37; Ex parte Beck, 922 S.W.2d 181, 182 (Tex.Crim.App.1996); Ex parte McIver, 586 S.W.2d 851, 854 (Tex. Crim.App.1979). An illegal sentence is distinguishable from a procedural irregularity⁴ or an inaccurate judgment,⁵ neither of which warrant relief on a writ of habeas corpus.

The resolution of this case depends on whether Applicant's sentence is actually illegal. When the judge delivered the sentence based on the indictment before him, he acted within his authority and the law. It was not until the trial court discovered that one of Applicant's felony charges had been reduced to a misdemeanor offense that the problem with the sentence became known. Clearly, the trial judge himself did not knowingly act illegally when issuing Applicant's sentence of 25 years. However, since Applicant's delivery of a controlled substance offense was reduced to a misdemeanor, as a matter of law, the prior conviction could not be used to sentence him as a habitual offender. Applicant is currently serving the fourth year of an enhanced sentence of 25 years for driving while intoxicated, when the actual range of punishment for his offense with one prior felony conviction is 2 to 20 years.

Our precedents involving claims of illegal sentences have dealt with situations in which the illegality of the judgment was apparent from the facts before the trial court.⁶ Although the instant case involves a different situation because the mischaracterization of one of the prior convictions only later became known, our previous cases in this area, and the rationale upon which they are based, are not only applicable but also instructive in evaluating Applicant's claim. We have held that "[a] sentence which is outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal." Mizell, 119 S.W.3d at 806. The error that occurred in Applicant's sentencing was more than a clerical mistake that can be corrected by a nunc pro tunc motion and order because it resulted from judicial reasoning or determination. See Ex parte Pena, 71 S.W.3d at 337. Cf. Ex parte Ybarra, 149 S.W.3d 147 (Tex.Crim.App. 2004) (dismissing the inmate's application for a writ of habeas corpus because the trial court had the authority to correct the omission of his pre-sentence jail credit with a nunc pro tunc judgment, and if the trial court failed to respond to his motion, he was required to seek a petition for a writ of mandamus in the Court of Appeals). It is not the trial court's entry of judgment that is in error,⁷ but the legality of the punishment as it now stands. The fact that the judicial reasoning and determination were correct according to the facts before the court at the time of sentencing does not preclude a finding of illegality at some later date. Although the judge did not make an incorrect determination based on the information before him, the mischaracterization of the offense in the indictment nevertheless resulted in Applicant's being sentenced in violation of the law. It was only when the habeas court uncovered the error in the indictment that it was discovered that Applicant's sentence was illegal. Applicant bargained for a sentence of 25 years for the driving while intoxicated offense when he could, at minimum, have bargained for a sentence of 2 years, and the maximum legal sentence was 20 years. Even as we have increasingly narrowed the types of claims that are cognizable under habeas corpus, our precedents firmly establish that inmates in custody under such an illegal sentence may seek habeas relief.

Because the record on appeal would not have shown that Applicant's sentence was illegal, it is appropriate for him to challenge it by applying for a writ of habeas corpus. Although habeas corpus is an extraordinary remedy, this is an extraordinary situation. Applicant's current sentence is more than ten times the minimum, and five years more than the maximum number of years he could have received if the primary offense had been properly enhanced in the indictment. He has already served four years of this improperly enhanced sentence, and he has no other means of obtaining relief. The caselaw makes it clear that Applicant can seek relief by direct appeal or writ of habeas corpus because "a defect which renders a sentence void may be raised at any time." Ex parte Beck, 922 S.W.2d at 182 (citing Heath v. State, 817 S.W.2d 335, 336 (Tex. Crim.App.1991) (opinion on original submission)); see also Ex parte Miller, 921 S.W.2d at 239; Ex parte White, 659 S.W.2d 434, 435 (Tex.Crim.App.1983); Ex parte McIver, 586 S.W.2d at 854; Ex parte Harris, 495 S.W.2d 231, 232 (Tex.Crim. App.1973). In fact, "there has never been anything in Texas law that prevented any court with jurisdiction over a criminal case from noticing and correcting an illegal sentence," no matter when or how the relief was sought. Mizell, 119 S.W.3d at 806. The fact that the record on direct appeal would not have revealed that there was a problem with Applicant's sentence makes habeas corpus the appropriate avenue for affording him relief.⁸ Applicant did not forfeit his claim to challenge his illegal sentence by failing to raise it on direct appeal.⁹

Furthermore, Applicant did not forfeit his claim by pleading true to the enhancement paragraphs at the plea proceedings. Despite the general rule that a plea of true to an enhancement paragraph relieves the State of its burden to prove a prior conviction alleged for enhancement and forfeits the defendant's right to appeal the insufficiency of evidence to prove the prior conviction,¹⁰ there is an exception when "the record affirmatively reflects" that the enhancement is itself improper. This exception originated in Sanders v. State, in which the Fourth Court of Appeals held that a...