Grado v. State

• Decision Date: 15 October 2014
• Docket Number: No. PD–1057–13.,PD–1057–13.
• Parties: Michael Anthony GRADO, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

445 S.W.3d 736

Michael Anthony GRADO, Appellant

v.The STATE of Texas.

No. PD–1057–13.

Court of Criminal Appeals of Texas.

Oct. 15, 2014.

John C. Bennett, Amarillo, TX, for Appellant.

John R. Messinger, Assistant State Prosecuting Attorney, Lisa C. McMinn, State's Attorney, Austin, TX, for the State.

OPINION

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

Michael Grado's community supervision was revoked, and the judge sentenced Grado to ten years' confinement, believing that it was the statutory minimum for Grado's offense when in fact it was five. Grado did not object. Is the right to be sentenced by a judge who considers the entire range of punishment subject to procedural default? Concluding that it is a waiver-only right, we hold that it is not.

Background

After Grado pleaded guilty to possession of 400 grams or more of amphetamine, the judge sentenced him to ten years' confinement, but suspended the punishment and imposed community supervision for a ten-year period and assessed a $10,000 fine. Grado later pleaded true to the violations the State alleged in its motion to revoke his community supervision. There was no plea bargain between the parties on punishment after revocation. Before the admission of evidence, findings on the violations, and sentencing, the parties informed the judge of their belief on the correct punishment range applicable to Grado's conviction:

[State]: Your Honor, before I present any evidence, I'd just like to remind the Court, and you're probably aware of this already, but I just discovered it this morning. I think the minimum punishment in this case is ten years, because it's over 400 grams. So I think the Court's options here are to either leave [Grado] on probation, or if you choose to revoke him, the ten years is the minimum.

And I made a mistake about that earlier in my offer to [defense counsel], and I realized this morning my mistake, and so I wanted to bring that to the Court's attention.

[Defense counsel]: Your Honor, addressing that issue, that is correct. I have had an opportunity to explain that to my client and, in fact, to his family, as well. And with that understanding, we are still proceeding with-with the understanding that is the case.

The Court: All right.

[State]: Your Honor—

The Court: This was called a first degree felony, but it's one of those that's—the punishment range is up a little above. Do you understand that, Mr. Grado? The minimum here, punishment, is ten years. Do you understand that?

[Grado]: The minimum?

The Court: Yes. And that would also be the maximum that you could get. I could give you—you know, what could happen here is, I can either revoke your probation or leave you on probation. If I revoke your probation, it's—the minimum is ten, or the maximum—and the maximum is ten, so it's a ten-year sentence. Do you understand that?

[Grado]: Yes, Your Honor.

The Court: All right. Do you still wish to plead true?

[Grado]: At the mercy of the Court, yes.

At the close of evidence, the judge found the violations true and sentenced Grado to ten years' confinement. Grado did not object. Most likely influenced by the parties' unanimous, but mistaken belief of the applicable law, the judge incorrectly believed that the minimum punishment of Grado's conviction was ten years' confinement. Both parties concede the error. As noted by the court of appeals, the trial court's judgment (which the court of appeals reformed) reflects a conviction under Health and Safety Code § 481.115. But that section defines the degree of felony and punishment range for the possession of Penalty Group 1 substances and establishes a minimum period of confinement of ten years.¹ Grado was convicted of possessing amphetamines, a Penalty Group 2 substance,² the punishment range of which is controlled by § 481.116(a).³ The possession of 400 grams or more of a Penalty Group 2 substance carries a punishment range of lifetime confinement “or for a term of not more than 99 years or less than 5 years.”⁴

In two points of error on appeal, Grado challenged his sentence and conviction asserting that (1) the judge arbitrarily refused to consider the correct range of punishment, and (2) he was constructively denied effective assistance of counsel when counsel agreed with the State's representation of the minimum punishment. Over the State's argument to the contrary, the court of appeals held that, despite a lack of an objection, Grado's first claim could be raised for the first time on appeal.⁵ The court held that “the right to be sentenced under the correct statute by a sentencing authority who has meaningfully considered the appropriate range of punishment” falls under Marin v. State's⁶ second category; a right that “must be implemented by the [legal] system unless expressly waived” and therefore does not require a contemporaneous objection.⁷ The court found that the judge's error was harmful under Rule of Appellate Procedure 44.2(b) and did not address Grado's ineffective-assistance-of-counsel claim.⁸ We granted the State Prosecuting Attorney's sole ground in its petition for discretionary review seeking review of the court of appeals' Marin analysis.

Preservation of Error

The general requirement that a contemporaneous objection must be made to preserve error for appeal is firmly established in Rule of Appellate Procedure 33.1.⁹ But the rule is not absolute. In Marin, we held that the general preservation requirement's application turns on the nature of the right allegedly infringed. We separated defendants' rights into three categories:

• The first category of rights are those that are “widely considered so fundamental to the proper functioning of our adjudicatory process ... that they cannot be forfeited ... by inaction alone.”¹⁰ These are considered “absolute rights.”¹¹

• The second category of rights is comprised of rights that are “not forfeitable”—they cannot be surrendered by mere inaction, but are “waivable” if the waiver is affirmatively, plainly, freely, and intelligently made.¹² The trial judge has an independent duty to implement these rights absent any request unless there is an effective express waiver.¹³

• Finally, the third category of rights are “forfeitable” and must be requested by the litigant.¹⁴ Many rights of the criminal defendant, including some constitutional rights, are in this category and can be forfeited by inaction.¹⁵

Rule 33.1's preservation requirements do not apply to rights falling within the first two categories.¹⁶ Barring these two narrow exceptions, all errors—even constitutional errors—may be forfeited on appeal if an appellant failed to object at trial.¹⁷

The court of appeals found that the right implicated here was the right to be sentenced by a sentencing authority who considered the appropriate range of punishment.¹⁸ Holding that Grado was denied this right, the court of appeals held that Grado was deprived of a fair and impartial proceeding.¹⁹ And under the unique circumstances of Grado's case, the right sought to be vindicated for the first time on appeal was a Marin category-two right.²⁰

Marin Analysis

A court's arbitrary refusal to consider the entire range of punishment constitutes a denial of due process.²¹ And despite a judge's wide discretion in determining the proper punishment in a revocation hearing, due process requires the right to a hearing before a neutral and detached hearing body.²²

We can easily conclude that the right to be punished after consideration of the full range of punishment falls outside of Marin's first category. This right is not an absolute right because it is waivable or forfeitable by the parties. We need to look no further than the negotiated plea bargain to prove this truth. In a negotiated plea bargain that contemplates a particular offense of conviction and punishment to be imposed, a defendant is expressly giving up a whole host of rights, including the right to be sentenced by a judge considering the entire range of punishment, and even perhaps the right to be sentenced under the “correct” statute.²³ The limitation here, of course, is that the resulting sentence must be within the range of punishment provided by statute. In other words, the sentence may not be illegal.²⁴ Grado's sentence was not; it fell within § 481.116's range of lifetime confinement or for a term of not more than 99 years or less than five years and a fine of up to $50,000.

We do not find this case to be squarely controlled by our previous opinions concerning the lack of a judge's partiality where the judge prejudged evidence or willfully imposed a predetermined sentence.²⁵ Indeed, Grado himself concedes below that the sentencing judge in this case was not biased per se, but rather mistaken as to the proper range of punishment. We agree with this assessment. By all accounts, it appears the judge attempted to conscientiously follow the law and consider the range of punishment for Grado's offense, including continuing his community-supervision term. However, the judge's mistaken belief that the particular possession offense carried a minimum of ten-year's confinement, together with Grado's underlying sentence of ten-years' confinement, resulted in the combined mistaken belief that upon revocation Grado faced a determinate sentence of ten years' confinement. We find the nature of Grado's sentencing does not equate to the intentional and deliberate partiality that infected those judicial proceedings we previously found intolerable.

For the same reasons, we are unwilling to analogize the judge in this case to an impartial juror in a trial's sentencing phase as the State suggests. It is true that we have held that a challenge for cause to a juror's impaneling based on one of the reasons listed in Code of Criminal Procedure Article 35.16, is forfeited if not asserted at trial.²⁶ But as stated above, the circumstances surrounding Grado's sentencing does not equate to “bias or prejudice against any law...