Miller v. State

• Citation: 548 S.W.3d 497
• Decision Date: 23 May 2018
• Docket Number: NO. PD–0891–15,PD–0891–15
• Parties: Arthur Franklin MILLER, Jr., Appellant v. The STATE of Texas
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

548 S.W.3d 497

Arthur Franklin MILLER, Jr., Appellant

v.The STATE of Texas

NO. PD–0891–15

Court of Criminal Appeals of Texas.

Delivered: May 23, 2018

Cody Lee Skipper, H. Jay Ethington, Dallas, TX, for Arthur Franklin Miller, Jr.

Amy Sue Melo Murphy, Assistant Criminal District Attorney, McKinney, TX, Stacey Soule, Austin, TX, for State of Texas.

OPINION

We withdraw our prior opinion and hold that a defendant meets the prejudice prong of his ineffective assistance of counsel claim by demonstrating that he would have opted for a jury if his attorney had correctly advised him that he was ineligible for probation from the trial court. He does not have to show that the likely outcome of the jury trial he waived would have been more favorable than the court trial he had. We base our holding on a line of cases stretching from Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), to Lee v. United States , ––– U.S. ––––, 137 S.Ct. 1958, 198 L.Ed.2d 476 (2017), and our opinion in State v. Recer , 815 S.W.2d 730, 731–32 (Tex. Crim. App. 1991). We disavow our contrary holding in Riley v. State , 378 S.W.3d 453, 458 (Tex. Crim. App. 2012), to the extent that it conflicts with this opinion. We express no opinion about whether Appellant has demonstrated a reasonable probability that he would have opted for a jury if his attorney had correctly advised him about his probation eligibility but remand to the court of appeals to address that issue.

Background

Appellant was charged with aggravated sexual assault of a child and indecency with a child alleged to have occurred in July 2001. TEX. PENAL CODE ANN. §§ 21.11, 22.021 (West 1999). If convicted of either of those crimes he was not eligible for probation from a judge. TEX. CODE CRIM. PROC. ANN. ART. 42.12 § 3g(a)(1) (West 2001). But his attorney advised him otherwise. Appellant waived a jury and pleaded not guilty. After a bench trial, the judge found him guilty of both charges and sentenced him to 22 years in prison for aggravated sexual assault and ten years for indecency.

Appellant sought a new trial on grounds of ineffective assistance of counsel for the bad advice about his probation eligibility. The trial court denied the motion, and the court of appeals affirmed the ruling. Miller v. State , 2015 WL 3456783 (Tex. App.—Dallas, June 1, 2015) (mem. op., not designated for publication). We granted Appellant's petition for discretionary review which asked whether the lower court erred in finding that the deficient performance was not prejudicial under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate two things: deficient performance and prejudice. Hill , 474 U.S. at 59, 106 S.Ct. 366 ; Strickland , 466 U.S. at 694, 104 S.Ct. 2052. The question here is how to measure prejudice when the attorney's deficient performance—bad advice about probation eligibility—could not have affected the outcome of the defendant's trial but could only have affected the defendant's decision to waive a jury. Although the Hill opinion characterized itself as an application of Strickland , its prejudice focus differed enough from Strickland 's to present us with a choice between two standards: Strickland 's different outcome standard and Hill 's waived proceeding standard. For the reasons given below, we conclude that the choice between them depends on the possible result of the alleged deficient performance. In this case, since the attorney's wrong advice about probation could only have affected the defendant's choice to waive a jury, the correct measure of prejudice is Hill 's waived proceeding standard.

Strickland held that the measure of prejudice for IAC claims is whether the deficient performance might have affected the outcome of the proceeding that the defendant had. Strickland , 466 U.S. at 694, 104 S.Ct. 2052. The "ultimate focus" of the Strickland prejudice standard is "the fundamental fairness of the proceeding whose result is being challenged." Id. at 696, 104 S.Ct. 2052. This requires the reviewing court to examine "the totality of the evidence before the judge or jury" and ask whether "the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Id. at 695–96, 104 S.Ct. 2052. If the deficient performance might have affected a guilty verdict, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. 2052. If the deficient performance might have affected a punishment verdict, the prejudice issue is whether there is a reasonable probability that, absent the errors, the sentencer would have assessed a more lenient punishment. See id. (in a death penalty case, "the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.").

On the other hand, if the deficient performance might have caused the waiver of a proceeding, the defendant's burden is to demonstrate a reasonable probability that the deficient performance caused the defendant to waive a judicial proceeding that he was otherwise entitled to have. Lee , 137 S.Ct. at 1965 ; Roe v. Flores–Ortega , 528 U.S. 470, 484, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) ; Hill , 474 U.S. at 59, 106 S.Ct. 366. The focus then is on the defendant's decision making. Lee , 137 S.Ct. at 1966. In Lee , where the attorney wrongly advised the defendant that he would not be deported if he pleaded guilty, 137 S.Ct. at 1962, the error "affected Lee's understanding of the consequences" of his plea, so the prejudice issue was "whether there was an adequate showing that the defendant, properly advised, would have opted to go to trial." Id. at 1965. In Flores–Ortega , where the defendant waived his right to appeal, the prejudice issue was whether he would have appealed but for his attorney's bad advice. 528 U.S. at 484, 120 S.Ct. 1029. In Hill , where the defendant claimed his attorney gave him bad advice about parole, 474 U.S. at 56, 106 S.Ct. 366, the prejudice issue was whether the defendant still would have pleaded guilty if his attorney had correctly advised him about parole. Id. at 59, 106 S.Ct. 366.

The likelihood of a better outcome from a waived or forfeited proceeding is not the correct prejudice standard because "we cannot accord any ‘presumption of reliability’ to judicial proceedings that never took place." Flores–Ortega , 528 U.S. at 483, 120 S.Ct. 1029 (citing Smith v. Robbins , 528 U.S. 259, 286, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) ). In those circumstances the different outcome question may be relevant to the extent that it sheds light on whether the deficient performance really did affect the defendant's decision making, but it is not the measure of prejudice. See Lee , 137 S.Ct. at 1966 (defendant's decision to plead guilty "may not turn solely on the likelihood of conviction after trial"); Flores–Ortega , 528 U.S. at 486, 120 S.Ct. 1029 (possible merits of the forfeited appeal "may give weight to the contention that the defendant would have appealed," but they are not required to "satisfy the prejudice requirement where there are other substantial reasons to believe that he would have appealed"); Hill , 474 U.S. at 59, 106 S.Ct. 366 (different outcome question relevant only to the extent it impacted decision to plead guilty). A prediction about the likely outcome of a trial is unnecessary and inappropriate in cases where the deficient performance is not "pertinent to a trial outcome, but is instead alleged to have affected a defendant's understanding of the consequences of his guilty plea." Lee , 137 S.Ct. at 1967, fn. 3.

The dissenting opinions argue for application of Strickland 's different outcome standard because Appellant had a court trial. They maintain that Hill 's forfeited proceeding standard only applies to guilty pleas. But Strickland was a guilty plea, and Hill applied in Lafler v. Cooper , 566 U.S. 156, 164, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), where the defendant had a jury trial. "[I]t is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process." Id. at 170, 132 S.Ct. 1376. Thus, choosing between Strickland 's different outcome standard and Hill 's forfeited proceeding standard does not depend on the simple guilty plea vs. trial formula.

Even if the different outcome standard did apply here, the dissenting opinions misread Strickland in two ways.

First, the dissent would ask whether a proceeding the defendant did not have would have been more favorable without the deficient performance; but Strickland asked whether the proceeding the defendant did have would have been more favorable without the deficient performance. 466 U.S. at 694, 104 S.Ct. 2052. Consistent with that approach, Weaver v. Massachusetts , ––– U.S. ––––, 137 S.Ct. 1899, 1911, 198 L.Ed.2d 420 (2017), an IAC claim based on the attorney's failure to object to a closed courtroom, required a reasonable probability of a different outcome in the trial the defendant had or a showing that the trial he had was fundamentally unfair; Weaver did not demand proof that a better outcome would have resulted from a hypothetical trial that was not had.

A majority of the Supreme Court has explicitly refused to evaluate prejudice based on the likely outcomes of proceedings not had. See Lee , 137 S.Ct. at 1965 (when an attorney's deficient performance caused the defendant to accept a guilty plea instead of pursue a trial, "we do not ask whether, had he gone to trial, the result of that trial ‘would have been different’ "); Flores–Ortega , 528 U.S. at 483, 120 S.Ct. 1029 (the likelihood of a better...