David C. Newell
I’m terrible with names, however lyrical they might be, so don’t expect me to get this one right. Some say Moose-ah-zay-duh. Others say Moose-ah-zuh-day-uh.1 I’m confident I will end up confusing this defendant with T.J. Houshmandzadeh the next time I draft my fantasy football team.2 Hopefully, I was able to grasp the Court of Criminal Appeals’ recent opinion, Ex parte Moussazadeh a little better. While managing to side-step the troubling issue of whether Padilla v. Kentucky applies retroactively, the court appeared to announce a new rule regarding advice to defendants about parole eligibility. This, combined with the United States Supreme Court’s recent decisions in Lafler v. Cooper and Missouri v. Frye, may point to the coming dawn of a new age in plea bargaining where prosecutors will be effectively required to double-check defense counsel’s work out of practical necessity.
The more you know
Max Gyllenhaal—no wait, I mean, Max Moussazadeh—pleaded guilty to murder without an agreed recommendation for punishment. The defendant, a juvenile at the time of the offense, had served as a lookout while one of his three co-defendants shot and killed a man during a robbery. The State had originally charged the defendant with capital murder but agreed to reduce the charges to murder in exchange for the plea and an agreement to testify at a co-defendant’s trial. The defendant indicated during that testimony that he understood he was facing a significantly lesser term of imprisonment than he would have faced had he been convicted of capital murder. The crime occurred on September 12, 1993.
Unfortunately, the law regarding parole eligibility for murder had changed 11 days before the defendant committed the crime unbeknownst to everyone involved in the plea.3 Before September 1, 1993, a defendant was eligible for parole on a capital murder conviction after serving a flat 35 years, but after that day, he would not be eligible until he served a flat 40 years. Similarly, before September 1, 1993, someone convicted with a deadly weapon finding had to serve one-fourth of his sentence up to 15 years, while after that date he would have to serve one half of his sentence up to a maximum of 30 years. And finally, before September 1, 1993, a person convicted of murder without a deadly weapon finding was eligible for parole when his good time plus flat time equaled one-quarter of the sentence up to 15 years, while after that date he would not be eligible for parole until he had served one-half of his sentence or 30 years. The trial court sentenced Moussazadeh to 75 years in prison without a deadly weapon finding.
The Fourteenth Court of Appeals affirmed the judgment of the trial court, and the Court of Criminal Appeals denied habeas corpus relief because the defendant had failed to prove by a preponderance of the evidence that his plea was induced by a misunderstanding of the applicable parole law which formed an essential element of the plea agreement. The defendant filed a subsequent application for a writ of habeas corpus based upon Padilla v. Kentucky. The Court of Criminal Appeals reconsidered its original decision on the defendant’s writ of habeas corpus on its own motion with orders for briefs on the issues raised in the subsequent writ.4
When is Padilla v. Kentucky not like Padilla v. Kentucky?
Upon reconsideration of Moussazadeh’s writ, the Court of Criminal Appeals held that trial counsel’s failure to provide correct information regarding parole eligibility amounted to ineffective assistance of counsel and rendered the defendant’s guilty plea involuntary.5 The court agreed with the State that Padilla v. Kentucky, which dealt with erroneous advice regarding immigration consequences, had no bearing on the case. The court also claimed that it would continue to recognize the distinction between the direct and collateral consequences of a plea.
However, the court crafted a holding that mirrors Padilla v. Kentucky in both scope and rationale. According to Judge Johnson, who wrote for an eight-judge majority, parole eligibility can be determined with some degree of certainty just by reading the applicable statute. Because a defendant will likely consider the actual minimum amount of time he will spend incarcerated to properly accept or reject a plea offer, a defendant needs accurate information regarding the law on parole eligibility. And the terms of the relevant parole-eligibility statute were succinct and clear with respect to the consequences of a guilty plea, making it easy for trial counsel to determine Moussazadeh’s parole eligibility simply by reading the text of the statute.6 Thus, the court recognized a duty on the part of trial counsel to both provide correct advice and refrain from providing incorrect advice regarding parole eligibility. The Court of Criminal Appeals refused to draw a distinction between an attorney who gives erroneous advice and one who fails to give correct advice in the same manner that the United States Supreme Court refused to limit its holding to situations where a defense attorney affirmatively misadvises his client regarding the immigration consequences of his plea.
But to reach this conclusion the court had to overturn its own prior caselaw, something the United States Supreme Court did not have to do in Padilla. In Ex parte Evans, the Court of Criminal Appeals had held that an applicant seeking to challenge the voluntariness of his plea must prove by a preponderance of the evidence that parole eligibility was an affirmative or essential part of the plea bargain because both parole eligibility and parole attainment were both extremely speculative. The court noted that this was an incorrect statement of the law because parole eligibility remains the same for any given conviction even though parole attainment is highly speculative because it is based on many different factors associated with the prisoner’s parole application. Consequently, the court overruled Evans and held that Moussazadeh had proven that the representation of counsel was deficient.
Presiding Judge Keller concurred with the result but correctly noted that by overruling Evans, the court had created a new rule of constitutional law and retroactively applied it without conducting any kind of retroactivity analysis. She questioned whether there was some new, unstated retroactivity analysis on the horizon and expressed the opinion that the court should explain how the case fits into its previous retroactivity jurisprudence. Moreover, she would have limited the holding to the facts of the case, namely situations where trial counsel affirmatively gives incorrect advice regarding parole eligibility. She would not have held, as the majority did, that the mere failure to advise a defendant on his parole eligibility also amounted to deficient performance of trial counsel. However, Presiding Judge Keller did agree that the court could have resolved the case without overruling Ex parte Evans because both the State and the trial court had ratified trial counsel’s misinformation regarding parole eligibility.
The irony here is that one of the issues the court asked for briefing on was the issue of Padilla v. Kentucky’s retroactivity.7 In fact, it appears that the court did not actually address any of the issues that it sought guidance on. The judges did not address whether Padilla constituted a new legal basis for an application of a subsequent writ of habeas corpus. They did not decide whether Padilla was an application of the established rule in Strickland v. Washington. They did not determine whether Padilla announced a new rule that was retroactive on collateral review. And while they did reconsider their reasoning in Ex parte Evans, they did not appear to do so in light of Padilla, which they simply dismissed as inapplicable at the outset of their analysis. In contrast, however, they did overrule their own precedent and apply their new understanding of the law regarding parole eligibility retroactively without explaining their justification for doing so, a step the United States Supreme Court avoided in Padilla v. Kentucky. How’s that for a black fly in your Chardonnay?8
Direct and collateral consequences
One significant difference between Moussazadeh and Padilla remains. While Justice Stevens seems to have written Padilla with the goal of giving it as broad a reach as possible, as a practical matter, Moussazadeh should not have the same potential for mischief. Despite the Court of Criminal Appeal’s failure to harmonize its current opinion with past precedent regarding stare decisis or retroactivity, the court’s ultimate conclusion is correct. Determining and advising defendants of the law surrounding parole eligibility (rather than parole attainment) should be a much more straightforward task than determining the immigration consequences of a plea; it’s simply a matter of opening a book and reading the statute. And the court still expressly recognizes a distinction between direct and collateral consequences of a guilty plea, while the United States Supreme Court remained coy, if slightly antagonistic, toward that conceptualization. So while the United States Supreme Court left open in Padilla the idea that the failure to advise on other consequences of a guilty plea (such as sex offender registration) may result in an involuntary plea, the Court of Criminal Appeals opinion in Moussazadeh seems more limited to a consequence that is direct or at least more easily determined.
But Moussazadeh may be an example of a collateral consequence of Padilla, namely the increased scrutiny upon the advice of trial counsel regarding his plea. Another example can be seen in the United States Supreme Court’s recent decision of Lafler v. Cooper. There, the court held that the decision to reject a plea bargain and proceed to trial can be ineffective assistance where the attorney’s advice to reject the plea is based upon an apparent misunderstanding of the applicable law.9 In reaching this conclusion, the court rejected the argument that an otherwise fair trial inoculates any errors in the pretrial process. While the court acknowledged that erroneous strategic predictions about the outcome of trial is not necessarily deficient performance, the parties in the case conceded that trial counsel’s performance in advising Lafler to reject the plea bargain offer was deficient.
That same day, the court recognized in Missouri v. Frye that the failure to communicate a formal plea bargain offer with a fixed expiration date to a defendant could amount to ineffective assistance of counsel and require the reinstatement of the original plea offer.10 Both Frye and Lafler start from the position that the criminal justice system “is for the most part a system of pleas, not a system of trials” and that “horse trading” between the prosecutor and defense counsel determines who goes to jail and for how long. Both cases pointed to Padilla for the notion that plea bargaining is a critical stage that entitles a defendant to effective assistance of counsel and provides both the State and the trial court a substantial opportunity to guard against claims of ineffective assistance based upon bad advice leading to a plea.11 As the court noted in Frye, “at the plea entry proceedings the trial court and all counsel have the opportunity to establish on the record that the defendant understands the process that lead to any offer, the advantages of accepting it, and the sentencing consequences or possibilities that will ensue once a conviction is entered based upon the plea.12 Notably, in Moussazadeh, “all counsel” as well as the trial court were mistaken about the law regarding parole eligibility at the time of the plea entry.
Of course, most prosecutors did not need these cases to internalize these lessons and routinely make sure the record clearly demonstrates proper admonishments and informed decision-making at the time a plea is taken. But the multiple opinions shared between the Court of Criminal Appeals and the United States Supreme Court on the issue of plea bargaining highlights the increased attention that these courts are currently paying to the plea bargain process. “All counsel” should take advantage of the opportunity at the entry of a plea to ensure that the record reflects that a defendant is properly admonished of the consequences of his plea and that any advice given by trial counsel was not based upon a mistaken understanding of the law.
Now if only the record could help me get the names right.
1 Let’s call the whole thing off.
3 This also pre-dated TDCAA’s traveling legislative updates.
4 Presiding Judge Keller has warned against using Rule 79.2(b) to reconsider original applications of writs of habeas corpus lest they become Trojan horses for subsequent applications for writs of habeas corpus. Ex parte Moreno, 245 S.W.3d 419, 431 (Tex. Crim. App. 2008)(Keller, P.J. concurring). Presiding Judge Keller did note that such reconsideration should be limited to those situations where the issue was originally raised in the first application and there was an indisputable mistake of fact or law that had been made by the court itself. Though a majority of the court has yet to take this explicit position, the court does seem to believe, though it does not say so, that both situations are present in this case.
5 Ex parte Moussazadeh, 2012 WL 468518 (Tex. Crim. App. Feb. 15, 2012).
6 See e.g. Padilla v. Kentucky, 130 S.Ct. 1473 (2010)(noting that Padilla’s counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute).
7 Ex parte Moussazadeh, 2010 WL 4345740 (Tex. Crim. App. 2010)(not designated for publication).
8 “Ironic,” Jagged Little Pill, Alanis Morissette (Maverick 1995).
9 Lafler v. Cooper, 2012 WL 932019 (March 21, 2012).
10 Missouri v. Frye, 2012 WL 932020 (March 21, 2012). Admittedly, this is not a revelation in Texas where the Court of Criminal Appeals had come to the same conclusion 12 years earlier. Ex parte Lemke, 13 S.W.3d 791 (Tex. Crim. App. 2000).
11 Frye, 2012 WL 932020 at *6; Lafler, 2012 WL 932019 at *4, *11.
12 Frye, 2012 WL 932020 at *6.