© 2003 Lang Baker
Shankle v StateNovember 5, 2003
IN THE COURT OF CRIMINAL APPEALS
BRUCE WAYNE SHANKLE, Appellant
THE STATE OF TEXAS
ON DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
When a defendant pleads guilty to one offense pursuant to a plea-bargain agreement by which the State consented to an unadjudicated offenses being taken into account in assessing punishment, is the sentence for the offense a punishment recommended by the prosecutor for purposes of the rule that limits the right of plea- bargainers to appeal? We hold that it is.
Proceedings in the Courts Below
According to a police officers affidavit in the clerks record of this case, on August 15, 1999, the appellant entered the home of a girl younger than seventeen years of age, threatened to kill her, sexually assaulted her, and stole items from her home. A few months later, a grand jury presented an indictment for aggravated sexual assault and an indictment for burglary of a habitation.
On January 19, 2001, the appellant and the State filed a disclosure of plea recommendations in the sexual assault case, to show the court:
On the same day, the appellant executed a written Waiver of Jury and Agreement to Stipulate Upon a Plea of Guilty, a written judicial confession, and a written admission of the unadjudicated offense of burglary of habitation for which he had been indicted, and he pleaded guilty.
After receiving in evidence the appellants written confession of the sexual-assault offense, the court withheld a finding on guilt, ordered a presentence investigation, and said that the case would be reset for sentencing.
On March 30, 2001, the court heard testimony from nine witnesses. Then it admonished the defendant and took his plea of guilty in the burglary of habitation case. (The reason for doing this was not stated.)1 The court announced that it would take the burglary offense into account in assessing punishment in the sexual assault case, and that it would bar further prosecution of the burglary case.
The court heard the argument of counsel, found the appellant guilty of aggravated sexual assault, sentenced him to 40 years in prison, gave him credit for 592 days in jail, and ordered him to pay court costs, attorneys fees, and restitution. The court noted that the appellant had 30 days in which to file a motion for new trial or a motion in arrest of judgment. The appellant said he needed to take that time.
The State noted for the court that there is a plea agreement in this case and that was so his right of appeal is limited.
Defense counsel said, Correct.
The Court said, Yes. There is there is a limited right of appeal in this case, but I will give you the 30 days so that you can make a decision as to what you wish to do. The court remanded the appellant to custody, and recessed.
On a Bell County Law Enforcement Center Inmate Services Request form dated April 3, 2001, the appellant wrote to the District Clerk:
The clerk filed the notice on April 5, 2001. On April 26, the court of appeals ordered the district court to appoint counsel for the appellant.
The court of appeals held that the notice of appeal was adequate to invoke its jurisdiction, and that the district courts failure to admonish the appellant that he would be required to register as a sex offender was a reversible error under the standard of review in Rule of Appellate Procedure 44.2(b). Shankle v. State, 59 S.W.3d 756 (Tex. App. Austin 2001). We granted review of both holdings. Because of our decision on the first holding, we shall not reach the merits of the second.
Defendants Right of Appeal
In 1977, the legislature acted to limited the right of appeal by a plea-bargaining defendant. The same legislature enacted Texas first authorization and regulation of plea- bargaining.
Before 1977, the legislatures only action on plea-bargaining was a 1975 amendment of Code of Criminal Procedure article 26.13 that included this new subdivision:
In Cruz v. State, this Court commend[ed] the practice that was codified by that amendment, and said:
The Court refused, however, to follow the decisions of state and federal courts that had given defendants the right to withdraw their pleas if the trial court refused to follow a plea-bargaining agreement.
Whether it was motivated by the Cruz opinion we cannot say, but the next legislature authorized and regulated plea-bargaining agreements by adding a proviso to Article 26.13(a)(2), so that the article read:
This amendment not only brought plea-bargaining into the open, it also modified the traditional doctrine which we had adopted in Cruz that the recommendation of the prosecuting attorney as to punishment was not binding on the court and that the defendant had no recourse if the punishment exceeded that to which he had agreed. The 1977 act authorized the State and the defendant to enter into a plea-bargaining agreement on punishment that would be binding on the court, to the extent that the defendant was entitled to learn whether the court would follow the agreement and to withdraw his plea if the court refused to be bound by the agreement.
The same legislature limited a plea-bargaining defendants right of appeal by adding to article 44.02 of the Code of Criminal Procedure a proviso so that the article read:
We have held that a guilty-pleading defendants right of appeal, as thus limited, is a substantive right that may not be abridged, enlarged, or modified by Rule of Appellate Procedure 25.2(b).6 This is because of the terms of the act of the legislature that, in 1985, granted this Court authority to make such rules: The court of criminal appeals is granted rulemaking power to promulgate rules of posttrial, appellate, and review procedure in criminal cases except that its rules may not abridge, enlarge, or modify the substantive rights of a litigant.7
Using language that was substantially identical to that in the 1977 proviso to Article 44.02, we embodied the guilty-pleading defendants right of appeal in the Rules of Appellate Procedure in 1986,8 and in the revisions of the Rules in 19979 and 2003.10
The 1977 legislative act and our rules have limited the right of appeal of a defendant whose plea of guilty was entered in a case in which the court assessed a punishment that did not exceed the punishment recommended by the prosecutor and agreed to by the defendant. The question is whether this case is such a case. The prosecutor and the appellant entered into a plea-bargain agreement, but was it an agreement by which the prosecutor recommended, and the appellant agreed to, punishment?
The two basic kinds of plea-bargaining in the United States are charge-bargaining and sentence-bargaining.11 Charge-bargaining involves questions of whether a defendant will plead guilty to the offense that has been alleged or to a lesser or related offense, and of whether the prosecutor will dismiss, or refrain from bringing, other charges. Sentence- bargaining may be for binding or non-binding recommendations to the court on sentences, including a recommended cap on sentencing12 and a recommendation for deferred- adjudication probation.13 (There can be other kinds of plea bargains that include other considerations, but they are far fewer in number.)
It is obvious that sentence-bargaining involves punishment, and almost equally obvious that charge-bargaining affects punishment. An agreement to dismiss a pending charge, or not to bring an available charge, effectively puts a cap on punishment at the maximum sentence for the charge that is not dismissed.
If the State and the appellant in this case had made an agreement that the State would recommend a punishment not to exceed one life sentence, it unquestionably would have been an agreement on punishment. The agreement for the State to allow the court to take into account the other pending charge of burglary of a habitation in assessing punishment for the sexual assault, and not to charge another offense that the appellant committed that day, had the same effect. The agreement in this case for the court to take the burglary into account in punishing the appellant for the sexual assault also was like a sentence-bargain in that it required the consent of the court.
Charge-bargains can affect punishment in other ways. For example, two offenses may be within the same range of punishment, but if one of them is described in Code of Criminal Procedure article 42.12, section 3g, and the other is not, the effects of sentences that are identical on their faces can be quite different. Sentences that are described in that section cannot be suspended by the trial court without the recommendation of a jury,14 and offenders convicted of them become eligible for parole only when their actual calendar time served in confinement equals the lesser of one-half of the sentence or 30 years, while other offenders are eligible when their actual calendar time served plus good conduct time equals the lesser of one-fourth of the sentence or 15 years.15
Because the appellant pleaded guilty and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, we hold that the plea-bargaining appellant had no right of appeal under the applicable rule of appellate procedure.
The court of appeals should not have addressed the merits of the appellants point of error about the trial courts failure to admonish him as Code of Criminal Procedure article 26.13(a)(5) required, and we may not address it either. The judgment of the court of appeals is vacated, and the appeal is dismissed.
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© 2003 Lang Baker