A defendant is charged with a state jail felony and 2 other "felony" convictions are also alleged.

The State, Defendant and Court all believe that one prior is a state jail conviction and the other is a non state jail conviction. Thus, upon conviction, the defendant would face only state jail punishment.

The defendant enters a not guilty plea and seeks a trial, believing that if he is convicted he could only get State Jail punishment.

However, after he is convicted, it becomes apparent that both prior convictions are for state jail felonies, thus elevating the punishment to that of a 3rd Degree felony.

The defendant then urges his "not guilty" plea was involuntary. If he had known he could be facing 2-10 in prison, he would never have gone to trial.

What do you'all think????? Ever hear of an involuntary not guilty plea??? Thanks for your advice.

[This message was edited by Judge Larry Gist on 10-07-03 at .]

He says if he had known he was charged with a more serious offense he would have waived his right to trial by jury (presumably because he thinks the judge would be more lenient as to punishment?). Is he also saying I would have pleaded guilty (presumably because that might engender a greater feeling of mercy)? I have never heard anyone say they were harmed because they lost the right to plead guilty. I guess his real point is, "I could have gotten a plea bargained recommendation for a state jail punishment, but now I am faced with a harsher punishment". My answer is: you had no right to any plea bargain, and just because you did not think the other prior would hurt you under 12.42(a)(1) is no reason to say you now get a new trial. After all, your plea goes to the merits of the charge, not the punishment range. Plea recommendations often look much better (or at least different) after the trial. That's life.

So, if the defense attorney had notified the state that both of the priors were state jail felonies, he could have made sure the defendant was properly enhanced to a higher punishment range? And his failure to do that was ineffective?

All of this pre-supposes that the prosecutor would have agreed to go forward on the state jail felony (with a guilty plea and agreed punishment). Sounds like that is fairly speculative.

I think we get to hit the no buzzer on this one.

It seems unlikely that a not guilty plea could ever be busted as involuntary. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498 (1971) (�There is, of course, no absolute right to have a guilty plea accepted�); North Carolina v. Alford, 400 U.S. 25, 38 n.11, 91 S.Ct. 160, 168 n.11 (1970) ("A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court."); Garza v. State, 878 S.W.2d 213, 216 n.4 (Tex.App. � Corpus Christi 1994, pet. ref�d).

His attorney failed to properly advise him as to the correct punishment range he was facing, if convicted. Presumably, he used this wrong advice to make his decision to decline a plea bargain and proceed to trial. He has a better chance of reversal/grant of motion for new trial based on ineffective assistance of counsel.

I hope we are not assisting defense counsel in drafting a motion for new trial, but Judge Gist does not state that ineffective assistance of counsel is the ground alleged. If not, then no new trial can or should be granted on that ground. See Gent, 887 S.W.2d at 273; Washburn, 692 S.W.2d at 578.

Furthermore, as John points out the mere fact the prosecution may have had a misconception as to the range of punishment should not enable the Defendant to benefit. He is essentially saying bad advice from my attorney kept me from duping the prosecutor. Should that be a protected interest? I agree he might be able to say his counsel's performance was deficient (below an objective standard of reasonableness) in his advice as to the punishment range. But, he must also show he was prejudiced by that advice. If the State did not abandon the prior which was thought not to be available for enhancement under 12.42(a)(1), then the Defendant's sentence would have been improper under the facts proved and subject to later attack. Hence, there is not a reasonable probability that, but for counsel's unprofessional errors, the ultimate result of the proceeding would have been different. Ergo, no Sixth Amendment violation. Even if the State would have abandoned the priors, that offer was rejected by the Defendant. Unless the courts are going to reject the cases cited by David, the validity of such rejection is not going to be an issue.

I am sure there are cases where the defendant claimed his counsel told him the range of punishment was worse than it actually was and therefore the determination to plead guilty was involuntary. But I do not think there is, or should be, a converse to that proposition.

Judge, let us know how it turns out.

To make sure I stay in the right ethical climate, these are assumed facts right now. However, I so sincerely appreciate the advice from everyone. Your collective wisdom is so valuable, and I hope Martin, John, David and Ken will accept my sincere gratitude for taking the time to give me your valuable thoughts.

If this situation occurs in an actual case, you can be sure Martin I'll let you'all know what happens. Thanks a million.