Fimberg v. State

• Citation: 922 S.W.2d 205
• Decision Date: 01 February 1996
• Docket Number: No. 01-94-01038-CR,01-94-01038-CR
• Parties: Iosif FIMBERG, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 205

922 S.W.2d 205

Iosif FIMBERG, Appellant, v. The STATE of Texas, Appellee.

No. 01-94-01038-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Feb. 1, 1996.

Order Overruling Motion for

Rehearing April 11, 1996.

Discretionary Review Refused Aug. 28, 1996.

Cynthia Russell Henley, Houston, for appellant.

John B. Holmes Jr., Houston, Calvin Hartman, Houston, for appellee.

Before ANDELL, HUTSON-DUNN and O'CONNOR, JJ.

OPINION

ANDELL, Justice.

In this appeal, we are asked to decide if a promise from counsel to defendant regarding punishment resulted in an involuntary plea of guilty. Appellant, Iosif Fimberg, pleaded guilty to attempted sexual assault ¹ and was sentenced by the trial court to seven years in prison. In a sole point of error, appellant contends his plea of guilty was involuntary as a result of ineffective assistance of counsel. We affirm.

Background

Appellant, a recent Russian emigre, worked as a janitor in Ben Taub Hospital. In certain areas of the hospital, he was intentionally watched by nurses and clerks when he was on the floor because of a general perception that his behavior was suspicious. On the day of the offense, he was seen going very quickly into the room of a comatose patient. A floor clerk watched appellant's movements in the patient's room via a closed-circuit television. In her statement to the police, the clerk testified she saw appellant pull down the patient's bed sheet and pull up her nightgown. The patient was not wearing underclothes and her genitals were exposed. The clerk saw appellant put one hand between the patient's legs and his other hand over her vaginal area. Appellant left the room about a minute later.

Appellant claims he was simply attempting to replace a torn glove by getting one from the nearest room. He says in the process of pulling out a fresh glove from the box, he accidentally dropped some gloves onto the patient, then picked them back up. He believes the charges against him resulted from a misunderstanding of these actions.

Procedural History

Appellant originally hired Ernest Clouser to represent him. After Clouser was suspended from the practice of law and disbarred, his partner, Herschel Cashin, took over his criminal practice. Because appellant's command of English is very limited, an interpreter was used for all communications in and out of court. Cashin did very little to prepare for trial and did not conduct an independent investigation of the facts.

Cashin testified Judge Jones advised him on the day the cause was set for trial if a jury convicted appellant and recommended probation, the judge would assess jail time. Cashin conveyed this information to appellant. In response, appellant attempted to accept a previous offer of deferred adjudication, but this attempt was rejected by the State. Appellant testified Cashin promised him he would be assessed probation without jail time if he were to plead guilty.

Based on this alleged promise, appellant pleaded guilty without an agreed recommendation on punishment but asked for a different judge to impose sentence. A presentence investigation report (PSI) was prepared. About nine months later, on the day sentence was to be imposed, appellant attempted to change his plea to not guilty, but the trial court refused to permit the change. The judge sentenced appellant to seven years in prison. Appellant moved for a new trial based on ineffective assistance of counsel resulting in an involuntary plea of guilty. After a hearing, the trial court denied the motion.

Standard of Review

To reverse a conviction based on ineffective assistance of counsel, the appellate court must find: (1) counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). This standard applies to challenges to guilty pleas. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). To satisfy the second prong of the test enunciated in Strickland, appellant must show there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty, but would instead have insisted on going to trial. Id.

An involuntary guilty plea must be set aside. Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 1713, 23 L.Ed.2d 274 (1969); Williams v. State, 522 S.W.2d 483, 485 (Tex.Crim.App.1975). To determine if a plea is voluntary, we consider the record as a whole. Williams, 522 S.W.2d at 485. If counsel conveys erroneous information to a defendant, a plea of guilty based on that misinformation is involuntary. Ex parte Griffin, 679 S.W.2d 15, 17 (Tex.Crim.App.1984); McGuire v. State, 617 S.W.2d 259, 261 (Tex.Crim.App.1981).

Review of the Record

The following evidence was presented at the hearing on appellant's motion for new trial:

(1) Cashin did not prepare for trial. He did not interview the hospital witnesses, take or review photos, interview the man who wrote out appellant's statement to Ben Taub officials, contact or subpoena character witnesses, or meaningfully address appellant's lack of fluency in English.

(2) The prosecuting attorneys said Cashin was unusually nervous and seemed unready for trial.

(3) Cashin admitted he did not want to try the case; he thought it was a "tough set of facts" and wanted appellant to plead guilty.

(4) Neither Clouser nor Cashin responded on time to the State's offer of five years deferred adjudication, originally made March 19, 1993. After subpoenas were issued, this offer was marked out in the file with an "X" and a note was written in the margin that the offer was withdrawn. The file was continuously available to Cashin until the day of trial. When appellant attempted to accept the offer on the day of trial, the State informed Cashin the offer had been withdrawn.

(5) Cashin said Judge Jones, in the presence of one of the prosecutors, either Dean Blumrosen or Richard Moore, told him if appellant went to trial, and the jury convicted him and recommended probation, the court would assess jail time. Blumrosen and Moore both denied hearing Judge Jones say this.

(6) Cashin informed appellant of Judge Jones's statement about imposing jail time. Appellant and his son both testified when Cashin conveyed this alleged statement by Judge Jones to them, it influenced appellant's decision to plead guilty.

(7) Appellant and his son both testified Cashin assured appellant he would not go to jail if he pleaded guilty. Appellant also testified about Cashin's assurance during the earlier sentencing hearing at which he attempted to change his plea.

(8) Cashin specifically denied assuring appellant he would not go to jail, saying, "I couldn't give him my assurance that he wouldn't go to jail, it's up to the Judge on PSI to give him punishment, whatever [the] Judge sees fit."

(9) Cashin testified appellant had an interpreter and understood what he was doing. Cashin claimed there was nothing involuntary about appellant's plea.

(10) The plea papers signed by appellant state he freely and voluntarily pleaded guilty.

(11) Appellant testified at the plea hearing his plea of guilty was freely and voluntarily made and no promises had been made to him by anyone.

(12) Appellant testified at the sentencing hearing he had lied under oath about whether any promises had been made to him regarding his sentence.

(13) In response to being asked at the hearing on his motion for new trial if his plea was voluntary, appellant answered, "Yes."

Involuntary Plea of Guilty

A plea of guilty based on misinformation is involuntary. Boykin, 395 U.S. at 244, 89 S.Ct. at 1713. To apply a standard requiring us to show but for counsel's error appellant would not have pleaded guilty, this Court must make a threshold determination that counsel erroneously advised appellant. In evaluating the record and assessing the contradictory testimony, we have kept in mind the problems unique to a defendant utterly unfamiliar with the American system of justice, who was raised in a country where the attorney-client relationship may radically differ from our own. Appellant's fluency in English is very limited and the record does not show anyone other than appellant's son and translator spoke Russian. The language barrier unquestionably intensified appellant's dependence on his attorney. Despite appellant's own testimony that his plea was freely entered, we are inclined to believe he may have misunderstood the process and his obligations. Nevertheless, we are unable to conclude appellant's plea was involuntary.

The testimony shows appellant's plea was influenced by two statements: (1) the trial court would impose jail time if appellant went to trial, was found guilty, and the jury assessed probation, and (2) appellant would not go to jail if he pleaded guilty. Cashin testified Judge Jones made the first statement about imposing jail time and acknowledged conveying it to appellant. No one heard the judge make this remark, but that is immaterial. This statement, whatever its source, is not misinformation. The judge would have been able to impose jail time as a condition of probation, and could announce his willingness to do so. Because Cashin was conveying accurate information to appellant, not misinformation, we cannot consider a plea based on it to be involuntary.

As to the second statement, although appellant and his son both testified Cashin promised appellant he would not serve time if he pleaded guilty, Cashin flatly denied making such a promise. The second statement would qualify as misinformation, but there is nothing in the record to confirm whether this promise was made. By highlighting Cashin's seeming unpreparedness and unwillingness to try the case, appellant attempts to provide a motive for Cashin to misinform him. This does not solve the dilemma we face when...