In a previous post I discussed Open Pleas to judges in Texas.
In this post I want to explore how inmates can attempt to challenge their open pleas as involuntary by using the article 11.07 writ of habeas corpus, and what hurdles they face.
This post is for general research and interest only and should not be considered legal advice. As always, the specific facts of your case matter more than anything else. Please consult with an experienced post conviction attorney if you or a loved one are considering legal action.
First hurdle: The presumption that your plea was voluntary.
In order to have a sentencing hearing you have to plead guilty, which means you sign all the standard admonishments, formally enter your plea in front of the judge, and state (usually on the record) that you understand the consequences of your plea and are doing so voluntarily.
This procedure creates a presumption of voluntariness. Kniatt v. State, 206 S.W.3d 257, 657, 664 (Tex. Crim. App. 2006). In order to overcome this presumption, the writ applicant has the burden of proving that, under the totality of the circumstances, some aspect of his attorney’s representation rendered his plea involuntary.
Second hurdle: The presumption that your attorney was effective.
11.07 writ applicants must overcome the presumption that their lawyers acted based on sound legal strategy. Strickland v. Washington, 466 U.S. 668, 687 (1984). That really means two things. First, appellate judges will assume, absent affirmative evidence, that an attorney did or didn’t do something based on sound legal strategy. So you have to prove that the lawyer’s actions could not have been sound under any interpretation of the facts.
Second, the presumption means that you can only win on a claim that your plea was involuntary due to erroneous advice if you can independently prove that the lawyer actually gave this erroneous advice. This means either (1) the lawyer admits she gave the bad advice or at least makes a relevant concession or (2) the bad advice can be verified from another credible source (usually State’s case file or defense case file in the form of a written note, correspondence) or witness.
As the appellate courts say: “We commonly assume a strategic motive if any can be imagined and find counsel’s performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it.” Andrews v. State, 159 S.W.3d 98, (Tex. Crim. App. 2005).
Third hurdle: a promise of likely probation is a loser every time.
The most common complaint from inmates who get a big prison sentence in a punishment hearing after a plea of guilty is that their lawyer said they’d probably get probation.
This argument fails every time. A lawyer’s false assurance that a client will probably get probation has not been found to amount to deficient performance.
You need more.
How to win.
1. Bad Advice from a lawyer on when or why to plead open is a good basis for filing a writ, as long as you have proof.
In the context of a claim that an appellant’s plea was involuntary because of ineffective assistance of counsel, whether the plea was voluntary depends upon whether the attorney’s plea “advice was within the range of competence demanded of attorneys in criminal cases[.]” Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. 2010). Counsel has a duty to provide his client with advice concerning what plea to enter, and counsel’s advice should be informed by adequate investigation of the facts of the case or counsel’s reasonable decision that investigation was unnecessary. Harrington, 310 S.W.3d at 458.
Bad advice typically relates to the consequences of the plea or the strength of the State’s evidence. Erroneous advice on immigration status or parole eligibility are examples of bad consequential advice. A failure to tell a client that a key State witness has a credibility problem or has recanted is an example of bad advice as to the strength of the State’s case.
2. Prejudice can relate to length of punishment only
You have to prove both deficient performance and prejudicial effect when alleging that your open plea was involuntary. Prejudicial effect means that not only did your lawyer screw up, but the bad advice had a direct impact on your decision to plea. In other words, but for that bad advice, you would have gone to trial.
Except, you can also show prejudice if your lawyer’s failure to investigate resulted in the trial court not hearing essential mitigating evidence. Technically, this is not an involuntary plea claim, but a failure to investigate mitigating evidence can usually be brought as a parallel claim. It allows applicants another way to prove prejudice without having to ague that you would have gone to trial.