The decision in Puckett is troubling to me. While not set forth clearly in the opinion, the appeal is from an order adjudicating guilt (not original guilty plea). The court says because the attorney failed to communicate the state's offer as to punishment if the defendant pled "true," he now gets to have punishment assessed in accordance with the offer. The recommendation was not binding on the court, so far as I know, so why is this treated as a "plea offer"? It is also a scary opinion because the attorney did not fall on any sword, but rather controverted his client's claims. I guess it is good the opinion is "not published." I also note that court called it a "motion to revoke" to further confuse the issues. Or maybe I am just completely confused about what happened.

I dunno about the merits, but I am happy to see that the CCA is now creating PDF versions of their opinions. I've always been a big fan of WYSIWYG.

The order on the writ does not say that the trial court must accept it, although reading between the lines, it looks as though the trial court will.

[This message was edited by JohnR on 02-12-08 at .]

I don't find the case troubling. The holding only says that the State must reinstate the plea offer and the defendant allowed to enter a new plea. There's nothing requiring the court to assess any particular punishment. It reads almost identically to the remedy ordered in Ex parte Lemke, 13 SW3d 791. The court's still free to accept or reject it.

I also don't find it troubling, particularly because the trial court expressly found that the defense attorney's explanation was NOT credible.

The lesson for prosecutors is to put any offers and presumptive rejections ON THE RECORD before proceeding with a contested hearing or trial. That gives the defendant an opportunity to claim ignorance before we waste our time with a trial or hearing.

At least that's the recommended best practice presented in The Perfect Plea.

What I am trying to stress is the fact that the supposed punishment recommendation could have been disregarded by the judge without permitting withdrawal of the plea of "true." Is that not the holding in Gutierrez, 108 S.W.3d 304? To me, the defendant might have logically followed the advice of his attorney (that the offer was too harsh). Furthermore, if the offer is not binding on the judge, but is binding on the defendant, this whole scenario seems inconsistent with Gutierrez.

Well, most judges don't impose the logic of Guttierez. Most judges follow the practice used in a guilty plea -- allowing a defendant to withdraw the plea if the punishment recommendation is not followed. Admittedly, the findings do not indicate whether this judge would do that or not.

But, hey, the judge is making the findings. If the judge had wanted to indicate that the ineffective assistance was not prejudicial to the defendant (because the judge would not have accepted the recommendation), then the judge certainly could have included that finding in the record.

And, as mentioned by another poster, the CCA's holding does not prevent the judge from rejecting the recommendation. Of course, the judge would likely have to make it clear on the record that he is merely doing what he would have done from the beginning. Again, given the judge's findings that are favorable to the defendant, that is not likely to happen.

All in all, especially given the unpublished status of the opinion, it doesn't seem like a bad result.