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IN RE: Orlando Deonte PIERCE
In two separate petitions for writ of mandamus, relator, Orlando Deonte Pierce, challenges the trial court's orders on motions to enforce a plea bargain in both proceedings. Specifically, relator contends that the trial court unlawfully rescinded a plea-bargain agreement; that the trial court had a ministerial duty to approve a plea bargain in these cases to remedy a violation of effective counsel; and that a prior trial judge would have accepted the plea before a second attempt at rescission by the State. For the reasons outlined below, we deny relator's petitions for writ of mandamus.
In these proceedings, relator was charged by indictment with the offenses of aggravated assault and violation of a protective order, family violence. As indicated in relator's mandamus petitions, on August 27, 2018, the Robertson County District Attorney's Office conveyed a plea offer to relator's court-appointed counsel. According to relator, the offer was, in exchange for his plea of guilty to both felonies, relator would receive punishment of fifteen years' prison time for the aggravated-assault allegation and ten years' prison time for the violation of a protective order, family violence, allegation with the sentences to be served concurrently. The prosecutor indicated that the plea offer was available only for one week. During the following week, relator spoke with his appointed counsel and expressed a desire to accept the plea offer. However, appointed counsel did not convey relator's acceptance of the plea offer until a day after the prosecutor's deadline for accepting the offer passed. Prior to appointed counsel's attempt to accept the plea offer, the prosecutor informed appointed counsel, via facsimile, that the offer had been withdrawn and that any attempt to accept at this time was too late. The prosecutor replaced the aforementioned plea offer with one of forty years' prison time in exchange for relator's plea of guilty to both felony allegations.
Thereafter, on May 10, 2019, relator moved the trial court to “enforce the plea agreement,” arguing that the trial court should enforce the plea offer made by the prosecutor for fifteen years' and ten years' prison for the two charges with the sentences to run concurrently. Relator argued that he “should not be punished more severely, solely due to the failure of defense counsel to convey defendant's acceptance of the plea agreement to the District Attorney in a timely fashion.” The trial court initially granted the request to reopen the plea negotiations and further stated that any plea agreement reached between the prosecutor and relator would be considered by the court at a later date. The trial court did not accept or reject any plea at this time.
After the trial court's ruling, relator tried again to accept the prosecutor's original offer of fifteen years' and ten years' prison time for the two charges with the sentences to run concurrently. However, before the purported agreement could be approved by the trial court, the State revoked the plea, stating that the withdrawal was due to “newly discovered evidence” that relator committed a new offense of violation of a protective order on or about February 26, 2019. Subsequently, the trial court denied relator's motion to enforce the plea agreement, stating that there was no agreement to “specifically perform.” The mandamus record does not contain a certified or sworn copy of this order, which is the basis of these original proceedings.
II. Standard of Review
In a criminal mandamus, the relator must show that he has no adequate remedy at law and what he seeks to compel is a ministerial act. Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex. Crim. App. 2011); see State ex rel. Young v. Sixth Judicial District Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). An act is ministerial if relator can show a clear right to the relief sought. Bowen, 343 S.W.3d at 810. A clear right to relief is shown when the facts and circumstances dictate but one rational decision under “unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlled legal principles.” In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013). Mandamus is not available to compel a discretionary act as distinguished from a ministerial act. See State ex rel. Holmes v. Denson, 671 S.W.2d 896, 899 (Tex. Crim. App. 1984). However, a “discretionary” act can become “ministerial” when the facts and circumstances dictate but one rational decision. In re State of Tex., 162 S.W.3d 672, 675 (Tex. App.—El Paso 2005, orig. proceeding) (citing Buntion v. Harmon, 827 S.W.2d 945, 948 n.2 (Tex. Crim. App. 1992)).
“A plea agreement is a contractual arrangement. Until all of the necessary parties agree to the terms of the contract, the agreement is not binding.” Ortiz v. State, 933 S.W.2d 102, 104 (Tex. Crim. App. 1996).
A plea bargain consists of three parts: a plea of guilty, the consideration for it, and the approval by the court of the agreement. The bargain is the consideration exchanged to the defendant for the plea of guilty. In order for the contract to be binding, the trial judge must approve and accept both aspects of it. When presented with a plea bargain, the court has the right to accept or reject it; however, it may not hold the defendant to his plea of guilty while rejecting the benefit the defendant was to receive. If the court does not approve the entire agreement, the defendant must be allowed to withdraw his plea of guilty.”
Ortiz v. State, 885 S.W.2d 271, 273 (Tex. App.—Corpus Christi 1994), aff'd, 933 S.W.2d 102 (Tex. Crim. App. 1996) (emphasis added).
“The trial court's only role in the plea-bargain process is to advise the defendant whether it will accept or reject the plea bargain.” State v. Villarreal, 418 S.W.3d 920, 925 (Tex. App.—Austin 2013, no pet.). “If the court accepts the plea bargain, the State cannot withdraw its offer, and the parties are entitled to specific performance of the bargain.” Id. “If the court rejects the plea bargain, the defendant has the right to withdraw his guilty plea, and then the State has the right to withdraw its offer.” Id. “The trial court has no authority to participate in plea-bargain negotiations.” Id.
In these proceedings, there is nothing in the mandamus record indicating that the trial court approved any proposed plea agreement between relator and the prosecutor. As such, any purported agreement between relator and the prosecutor was not binding. See Ortiz, 933 S.W.2d at 104. Thus, relator is not entitled to specific performance of the purported plea agreement. See Villarreal, 418 S.W.3d at 925.
Furthermore, the case law mentioned above demonstrates that the trial court exercises discretion in accepting or rejecting a purported plea agreement between the State and a particular defendant. See Ortiz, 885 S.W.2d at 273; see also Perkins v. Court of Appeals for Third Supreme Judicial Dist., 738 S.W.2d 276, 284 (Tex. Crim. App. 1987) (noting that mandamus relief is available to compel performance of ministerial or mandatory duties; however, “it is not be to used to force a particular result, or to change a result, the determination of which involves an exercise of judicial or discretionary authority”). Thus, it cannot be said that the trial court, in these proceedings, had a ministerial duty to accept the original plea agreement. The decision to either approve or reject the proposed agreement rests within the sole discretion of the trial court. Pursuant to Perkins, mandamus relief is not available to compel a particular result, such as the acceptance of the original proposed plea agreement here, when the determination of which involves the exercise of judicial or discretionary authority to accept or reject the purported plea agreement. See 738 S.W.2d at 284.
Moreover, because the original plea agreement had been withdrawn by the State before the trial court approved of it, there is nothing in the law that requires: (1) the trial court to order the State to reoffer the plea agreement; and (2) the trial court to accept the re-offered plea agreement. To require this would be to inject the trial court in the plea-bargain negotiations, which is prohibited. See Villarreal, 418 S.W.3d at 925. Accordingly, we conclude that the relator has failed to identify and establish a true ministerial duty that the trial court violated in this case. See Bowen, 343 S.W.3d at 810; see also State ex rel. Young, 236 S.W.3d at 210.
In addition to the foregoing, we note that the majority of relator's mandamus petition advances an ineffective-assistance-of-counsel claim against relator's appointed counsel in failing to timely accept the State's original plea offer. This argument mirrors those which were contained in relator's motion to enforce the plea agreement. In any event, an ineffective-assistance-of-counsel claim can be brought on direct appeal or by an application for writ of habeas corpus. See, e.g., In re Bledsoe, No. 06-14-00215-CR, 2014 WL 12734694 at *1, 2014 Tex. App. LEXIS 13507 at *2 (Tex. App.—Texarkana Dec. 18, 2014, no pet.) (orig. proceeding) (mem. op.) (“Although habeas corpus is usually a preferable avenue for raising claims of ineffective assistance of counsel, such claims may be raised on direct appeal; therefore, mandamus is not appropriate.”). Therefore, relator has failed to establish entitlement to mandamus relief in these proceedings for ineffective assistance of counsel because he has an adequate remedy at law. See Bowen, 343 S.W.3d at 810; see also State ex rel. Young, 236 S.W.3d at 210.
Furthermore, in his prayer, relator seeks to be “returned to the position he occupied on May 13, 2019, that being an accepted plea bargain for 15 years prison time on the Aggravated Assault allegations, to be served concurrently with a 10-year prison sentence on the Violation of a Protective Order charge.” As stated above, that plea offer was withdrawn by the prosecutor. The effect of granting this relief to relator would require us to mandamus the prosecutor to re-offer the plea offer desired by relator. We lack jurisdiction to issue a writ of mandamus against a prosecutor to make such an offer. See Tex. Gov't Code Ann. § 22.221(a)-(b) (West Supp. 2018) (providing that an appellate court has the power to issue writs of mandamus to protect its jurisdiction or against certain judges); see also In re Bailey, No. 10-13-00117-CR, 2013 WL 1846869, at *3, 2013 Tex. App. LEXIS 5539 at *8 (Tex. App.—Waco May 2, 2013, orig. proceeding) (mem. op.) (noting that an appellate court lacks jurisdiction to issue a writ of mandamus against a prosecutor). Moreover, because the trial court cannot participate in plea-bargain negotiations, the trial court cannot require the State to re-offer the plea either. See Villarreal, 418 S.W.3d at 925. As such, based on the facts in these proceedings, there is nothing in the law that allows for this Court or the trial court to effectuate the requested relief.
Based on the foregoing, we deny relator's petitions for writ of mandamus.1 See Bowen, 343 S.W.3d at 810; see also State ex rel. Young, 236 S.W.3d at 210.
The issue in these mandamus proceedings is whether the State is going to have to pay for a trial and an appeal, and possibly a writ proceeding, before Pierce, the Relator, is given the relief to which he is entitled today. I vote for today and avoid the unnecessary cost. Because the Court makes him wait and the State pay, I respectfully dissent.
This is an unusual case; I will grant you that. It is the kind of case that if you do not stop, breathe deeply, and think on it for a good while, you could misapprehend the nuances of the issue and the remedy. It would be easy to even summarily deny the petitions for writ of mandamus because when you first read them, the obvious answer in the mandamus context is that this is something that can be fixed on direct appeal or in an 11.07 application for a writ of habeas corpus. But wait! Why should it wait? To understand why it should not, and thus, why mandamus is not only a proper procedural vehicle but is, in fact, the only proper vehicle, we must first understand the merits of the legal issue and then look at the procedure.
Based on the allegations and record presented, Relator will have to suffer through two criminal trials, or accept a less favorable plea agreement, before he obtains the relief to which he appears entitled.1 The fundamental facts are that due to ineffective assistance of counsel, Relator's acceptance of a plea offer was not timely communicated to the State. If it had been, the State concedes that it would have honored it. The evidence certainly supports the fact that the trial court judge at the time would have accepted it because the evidence is that the trial court judge had not rejected any, and delayed accepting only one, plea bargain in 30 years on the bench as a district court judge.2 After an evidentiary hearing, the new trial court judge ordered the plea offer reinstated and the defendant accepted it. The State then withdrew it based on events that occurred long after the plea agreement would have been fully “papered” and the Relator would have been serving time pursuant to it. However, the new trial court judge allowed the plea offer to be withdrawn and has refused to compel the State to “honor” the plea agreement.
The trial court and the State have approached this purely as an attempt to specifically enforce a plea agreement. But this is no longer about the offer and acceptance of a plea agreement, as such. It is about the determination of, and more importantly the remedy for, ineffective assistance of counsel. Id. See also Piland v. State, 453 S.W.3d 473, 475-476 (Tex. App.—Texarkana 2014, pet. ref'd). Clearly the trial court determined that trial counsel was ineffective for having failed to timely communicate the acceptance of the State's plea offer and ordered it to be reoffered by the State, and the defendant immediately accepted it. Efforts by the State to then withdraw it, while perfectly acceptable in the routine practice of making, accepting, and withdrawing plea agreements, are simply inapplicable to the situation when the issue is ineffective assistance of counsel. The discretion the current trial court has to accept or reject a plea agreement is irrelevant. The remedy for ineffective assistance of counsel, whether done now or two years from now will be the same—enforcement of a plea agreement that was wrongfully taken from the defendant due to the ineffective assistance of counsel. The remedy for ineffective assistance of counsel in this situation leaves no latitude. To fully explore the issues, and compel the relief to which the Relator clearly seems to be entitled, we should request a response as is required before relief by mandamus can be granted. Tex. R. App. P. 52.4. Because the Court denies relief rather than requesting a response, I respectfully dissent.
1. We are also not persuaded by relator's contention that a prior trial judge in the 82nd Judicial District Court of Robertson County, Texas, would have accepted this purported plea agreement. As mentioned earlier, trial judges are vested with discretion to accept or reject plea agreements. That a prior trial judge would have accepted the purported plea agreement is supposition and irrelevant, especially considering the 82nd Judicial District Court is now occupied by a different trial judge who has his own discretion to accept or reject plea agreements.
1. Pierce filed a motion for emergency relief to stay the trial scheduled for September 3, 2019, which was granted pending the determination of these proceedings.
2. To suggest that after 30 years of not rejecting a single plea agreement this is the one and only one the trial court judge would reject, strains credulity to the breaking point. This establishes the three elements of an ineffective assistance of counsel claim. See Ex Parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013).
JOHN E. NEILL, Justice
(Chief Justice Gray dissenting with an opinion)
Response sent, thank you
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Docket No: No. 10-19-00288-CR, No. 10-19-00291-CR
Decided: October 02, 2019
Court: Court of Appeals of Texas, Waco.
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