Ex parte Wilson

• Decision Date: 24 September 1986
• Docket Number: No. 69459,69459
• Citation: 716 S.W.2d 953
• Parties: Ex parte Jackie Lynn WILSON.
• Court: Texas Court of Criminal Appeals

Page 953

716 S.W.2d 953

Ex parte Jackie Lynn WILSON.

No. 69459.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 24, 1986.

Gary L. Waite, Carol Hammond, Paris, for appellant.

Robert Huttash, State's Atty. and Alfred Walker, First Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

ONION, Presiding Judge.

In his post-conviction application for writ of habeas corpus applicant alleged he was convicted of aggravated robbery upon his guilty plea in Cause No. 5948 in the 8th District Court and was assessed 20 years' imprisonment as a result of a plea bargain.

He contended his plea of guilty was not freely, intelligently and voluntarily entered because his retained attorney prior to the guilty plea gave him erroneous advice about his expected parole eligibility date. Applicant alleged that his attorney told him the prosecutor would recommend an affirmative finding not be made as to the use or exhibition of a deadly weapon in the commission of the offense. He alleged his attorney informed him that without such affirmative finding applicant's initial eligibility for parole on the 20-year-sentence would be 36 to 60 months with "good time credit." Applicant alleged he later learned that in fact he must serve 80 months before he becomes eligible for parole and without consideration of "good time credit."

In his habeas application he cited Article 42.12, § 15(b), V.A.C.C.P., in effect at the time of his plea ¹ and pointed out the conviction for aggravated robbery without any affirmative finding as to a deadly weapon would still require that he not be eligible for release on parole until his actual calendar time served equals 1/3 of the maximum sentence or 20 calendar years, whichever is less.

Appellant cites and relies upon Ex parte Young, 644 S.W.2d 3 (Tex.Cr.App.1983), for the proposition that if a defendant is grossly misled and misinformed about his parole eligibility date by his attorney and the defendant relies upon that misinformation to the extent that he is induced to plead guilty or nolo contendere his plea may be rendered involuntary.

The District Clerk forwarded the habeas record to this Court after the convicting court took no action thereon.

This Court remanded the cause for an evidentiary hearing in the trial court or to "resolve this matter through use of affidavits." The record was returned with two affidavits, one from applicant and one from his trial counsel, with no findings of facts or conclusions as requested.

The applicant's affidavit tracked the allegations in his habeas application. His affidavit stated:

"I relied on the advice my attorney gave me regarding my parole eligibility date. I would not have plead guilty to a twenty-year sentence if I had known I would have to serve a full one-third of my sentence before I could even become eligible for parole."

His counsel's affidavit stated counsel had no knowledge of any conversation with applicant about parole, that as a rule he did not tell clients definitely "how long they will have to spend," but on occasion had given "them an idea as to how much time they will have to spend." He was aware of the provisions of Article 42.12, § 15(b), V.A.C.C.P., and had never advised "that a violation involving a deadly weapon" would be otherwise discharged except in accordance with said statute. He further stated he had "absolutely no knowledge" what, if anything, he told applicant in May of 1981. Counsel's affidavit revealed that applicant had informed him that at the time of the robbery he (applicant) had a knife, and not a shotgun as alleged in the indictment, but that his co-defendant had a shotgun; he explained the law of parties to the applicant.

Based upon the record then existing, this Court in its original opinion, 706 S.W.2d 649, granted relief setting aside the judgment of conviction finding the case "striking similar to Ex parte Pruitt, 689 S.W.2d 905 (Tex.Cr.App.1985), an aggravated robbery case, where as a part of the plea bargain itself it was agreed by the defendant, his counsel and the district attorney that his "good time" would be taken into consideration in determining parole eligibility, and further that there would be no affirmative finding as to a deadly weapon to avoid the flat time requirement of Article 42.12, § 15(a), supra. There this Court found the agreement as to avoidance of serving one-third calendar time before parole eligibility was an element of the plea bargain itself.

The State in its motion for leave to file motion for rehearing argued that a convicted felon was now eligible for post-conviction habeas corpus relief if (1) he swears that his plea of guilty was based on incorrect advice from his attorney, and (2) if the attorney is unable to remember whether he gave the alleged advice. The State argued that this was sufficient to render a plea of guilty involuntary, then a judgment of conviction could be overturned on the uncorroborated affidavit of the convicted defendant alone.

The State's motion was granted, and an evidentiary hearing before the trial court was ordered with instructions for findings of fact and conclusions of law.

At such evidentiary hearing applicant testified he was in court on May 4, 1981, and asked his retained counsel "what was going to take place"; that his counsel went into another room and upon return stated "they" were going to offer applicant 20 years in the Department of Corrections. Applicant asked counsel what would happen if he did not plead guilty for the 20 years, and counsel replied that applicant "could get fifty or ninety-nine by taking it to trial." Applicant then inquired when he "would be home" if he took the 20-year-sentence, and counsel replied "within three to five years." When asked if his counsel told him anything about an affirmative finding of a deadly weapon, he replied, " ... the only thing he told me was we'd get a twenty-year-sentence and I'd be home within three to five years." After talking to his boss and his wife, applicant decided to take the offer because it "sounded a lot better than taking a chance of getting fifty to ninety-nine." It was after he got to prison that he learned he would not be up for parole until December 1987.

On cross-examination he related the erroneous information about the parole date was based on his counsel's statement about "three to five years," and not because counsel had promised him or told him "anything at all about aggravated sentences or weapons?" Applicant admitted he had not talked to the district attorney or his assistant and had not seen his counsel talking to them, and the only thing he knew he was to get a 20-year-sentence and that counsel, in response to his own question had answered "three to five years" sometime after he came "out of the room with the District Attorney...."

Applicant admitted that at the time of his guilty plea he told the court he was pleading guilty because he was guilty, ² and that he was pleading guilty of his own free will and accord, that he had not been promised anything, or coerced, etc., and he was not pleading guilty because of "any delusive, persuasive or false hope of pardon or parole prompting him to confess his guilt." Applicant acknowledged the court advised him of the range of punishment, informed him that the court was not bound by any agreement or recommendation of any of the attorneys. He recalled that the prosecutor recommended the 20-year-sentence only, and that the court had inquired of him as well as of his counsel that if that was their understanding of the plea bargain and they both had answered in the affirmative.

The District Attorney at the time and now Congressman, Jim Chapman, testified he was present in court on May 4, 1981, and stated there was a plea bargain agreement for 20 years in applicant's case. He could not recall the conversation with applicant's counsel, and did not have any recollection about any agreement to eliminate any finding as to a deadly weapon in the judgment. He had served on a committee which recommended to the Legislature the enactment of the law pertaining to the affirmative finding in the judgment of a deadly weapon, he believed it was "a good law" and could not recall ever having agreed not to utilize the statute. Chapman testified he was aware that either a conviction for aggravated robbery or an affirmative finding of a deadly weapon would have an effect on the parole as intended by the statute, and there was no agreement between him and the defense counsel except as to the 20 years. Chapman stated he did not authorize the defense counsel to convey to the applicant any speculation of his as when applicant would be out of prison, and that it was not his policy to instruct a defense attorney what to tell his client.

John D. Byers testified he was applicant's retained trial counsel. As a result of things that had happened in Franklin County he had decided "it would not be a good thing to try the case," and that he sought the best offer he could get from the State; that after several discussions with the prosecutor "I finally got him down to twenty years." He did not recall anything being said during negotiations about parole eligibility. Counsel did not remember talking to applicant about parole eligibility. He acknowledged he sometimes discussed with clients a rule of thumb about how...