Ciminera, Dylan Bradley

Opinion

PD-1552-15

PD-1552-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 11/30/2015 3:51:36 PM Accepted 12/1/2015 2:18:41 PM ABEL ACOSTA

NO. CLERK

IN THE COURT OF CRIMINAL APPEALS OF OF THE STATE OF TEXAS

AT AUSTIN, TEXAS

No. 14-14-00817-CR COURT OF APPEALS

IN THE

FOR THE

FOURTEENTH SUPREME JUDICIAL DISTRICT AT HOUSTON

DYLAN CIMINERA § APPELLANT V. §

STATE OF TEXAS § APPELLEE

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

214 Morton St. Richmond. Tx. 77469 TBC No. 05170200 Attorney for Appellant

December 1, 2015

INTERESTED PARTIES

APPELLANT Dylan Cirninera Texas Department of Criminal Justice Institutional Division

TRIAL JUDGE Hon. Thomas R. Culver III 240"‘ District Court of Fort Bend County

TRIAL AND APPELLATE COUNSEL Steven R. Rosen 214 Morton St. Richmond, Texas 77469

STATE OF TEXAS John Heaiey District Attorney, Fort Bend County 301 Jackson St. Richmond, Texas

Fred Felcman Assistant District Attorney Fort Bend County, Texas

TABLE OF CONTENTS

INTERESTED PARTIES ........................................................................................ ..2 LIST OF AUTHORITIES ........................................................................................ ..4

STATEMENT REGARDING ORAL ARGUMENT .............................................. ..5

STATEMENT OF THE CASE ................................................................................ ..6

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ................... ..7

GROUNDS FOR REVIEW ..................................................................................... ..8

GROUND FOR REVIEW NUMBER ONE The Court of Appeals erred when it held that the trial court did not abuse its

discretion in overruling Appellant’s motion for new trial ........................... ..9

PRAYER FOR RELIEF ......................................................................................... .. 10

CERTIFICATE OF COMPLIANCE ..................................................................... ..11

CERTIFICATE OF SERVICE .............................................................................. ..11

APPENDIX A. (OPINION BELOW) ................................................................... ..12

LIST OF AUTHORITIES

%§s Brown v. State 943 S.W. 2d 35, 43, (Tex.Crim.App. 1997) .................................. ..9

Holden v. State, 201 S.W.3d 761 (Tex.Crim.App. 2006) ....................................... ..9

Martinez v. State, 981 S.W.2d 195 (Tex.Crim. App. 1998) .................................... ..9

Smith V. State, 266 S.W.3d 333,339 (Tex.Crim.App. 2009) .................................. ..9

Williams v. State 522 S.W.2d 483, 485 (Tex.Crim.App. 1975) ............................. ..9

STATEMENT REGARDING ORAL ARGUMENT Appellant believes that oral argument is not necessary in this case.

STATEMENT OF THE CASE

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Appellant pleaded guilty to the court to the offense of aggravated robbery. Afier

a presentence investigation and hearing the court sentenced Appellant to confinement

in the Texas Department of Criminal Justice, Correctional Division, for a period of

eight years.

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE Appellant’s appeal was affirmed in an unpublished opinion of the

Fourteenth Court of Appeals rendered October 29, 2015. No motion for rehearing was filed.

GROUNDS FOR REVIEW

GROUND FOR REVIEW NUMBER ONE:

The Court of Appeals erred when it held that the trial court did not abuse its

discretion in overruling Appe1lant’s motion for new trial.

GROUND FOR REVIEW NUMBER ONE The Court of Appeals erred when it held that trial court did not abuse its

discretion in overruling Appe1lant’s motion for new trial.

Argi_1ment and Authorities

A trial court’s ruling on a motion for new trial is reviewed under an abuse of

discretion standard. Smith v. State 266 S.W.3d 333, 339 (Tex.Crim.App. 2009). A trial court abuses its discretion in denying a motion for new trial only when no

reasonable view of the record could support the trial court’s ruling. Holden v. State,

201 S.W.3d 761, 763 (Tex.Cn'm. App. 2006).

A guilty plea determined to be involuntary must be set aside. Williams v. State, 522 S.W.2d 483, 485 (Tex.Crim.App. 1975). Misinformation concerning a matter,

such as probation may render a guilty plea involuntary if the defendant shows that his

guilty plea was actually induced by the rnisinfomiation. Brown v. State 943 S.W.2d

35, 43 (Tex.Crim.App. 1997). In determining the voluntariness of a guilty plea the

court should examine the record as a whole. Martinez v. State 981 S.W.2d 195, 197

(Tex.Crim.App. 1998).

In Appellant’s case, although he was not specifically promised that he would

receive deferred adjudication, the summary of the discussions he had with counsel in

their entirety led him to reasonably believe that he would receive probation. The plea was involuntary and the trial court abused its discretion in overruling his motion for

new trial. The Court of Appeals erred when it held otherwise.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Court

grant this Petition for Discretionary Review, that the case be set for submission; that

after submission this Court reverse the judgement of the Court of Appeals and

remand for a new trial

Respectfully submitted,

/s/ Steven R. Rosen

Steven R. Rosen 214 Morton St. Richmond, Tx. 77469 713-227-2900 TBC No. 05170200

CERTIFICATE OF COMPLIANCE

I certify that the foregoing document contains 745 words, generated by

computer.

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing instrument has been e-

served to the Fort Benti County District Attomey’s Office, and to Lisa C. McMinn,

State Prosecuting Attorney, P.O. Box 12405, Austin, Texas 7871 1, this the 30th day

of November, 2015.

/s/Steven R. Rosen

Affirmed and Memorandum Opinion filed October 29, 2015.

In The

Zllnurteenth (llnurt nf Appeals

NO. 14-14-00817-CR

DYLAN BRADLEY CIMINERA, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the 240th District Court Fort Bend County, Texas

Trial Court Cause No. 13-DCR-063595

MEMORANDUM OPINION

Appellant Dylan Bradley Ciminera appeals his conviction for aggravated robbery—serious bodily injury. In a single issue appellant contends the trial court abused

its discretion in overruling appellant’s motion for new trial. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND Appellant entered a guilty plea to the offense of aggravated robbery—serious

bodily injury. Appellant received the panoply of admonishments required by article 26.13 of the Code of Criminal Procedure and placed his initials next to each applicable admonishment including a paragraph admonishing appellant that the range of punishment for the offense was five to ninety-nine years in prison. Appellant entered his

plea without an agreed recommendation on punishment and filed a motion for deferred

adjudication community supervision.

Prior to accepting appellant’s guilty plea, the trial court orally admonished him as

to the range of punishment. Appellant stated that he understood the range of punishment, waived his right to a jury trial, and was not coerced into pleading guilty by threats or promises. Appellant stated he had conferred with counsel and that he believed counsel had “done a good job representing” him. Prior to hearing evidence on

punishment, the following colloquy occurred between the trial court and appellant:

[THE COURT]:All right. Before proceeding to pronounce sentence in the case, in order to preserve the Court’s authority to consider deferred adjudication, understanding that, Mr. Ciminera, that just Mr. Ciminera, — while I’m preserving the right to consider it, that does not mean I’m going to automatically grant it. You understand that?

THE DEFENDANT: Yes, your Honor. THE COURT: Has anybody promised you that if you pled guilty today and gave up all these rights I would give you deferred adjudication? THE DEFENDANT: No, your Honor. Mr. Levy [defense counsel] has made that very clear to me. At the punishment hearing both appellant and the complainant testified. They are

two recent high school graduates who were engaged in selling illegal drugs. Appellant

believed that the complainant “set him up” to be robbed. In retaliation appellant went to

the complainant’s home with a gun,‘ and demanded money from the complainant.

During the robbery appellant hit the complainant in the face, shattering his jaw. At the

'

The parties dispute whether appellant pointed the gun at the complainant or left it in his pocket.

conclusion of the hearing, the trial court sentenced appellant to seven years in prison.

Following his sentencing appellant filed a motion for new trial in which he alleged he received ineffective assistance of counsel, and that he was advised by counsel Elan Levy that if he plead guilty, “it looked like the judge would give him 10 years deferred adjudication and 6 months in jail.”

The trial court held a hearing on the motion for new trial. At the hearing,

appellant testified that he plead guilty because his counsel told him that if he went to trial “with the evidence that they would basically crucify [him].” Appellant also testified

that Levy told him “there was a good chance that [he] would get deferred adjudication,

and that [appel1ant’s co-defendant] would not be sent to prison.” Appellant “knew there was a possibility that [he] could get the five years,” but was confident in his lawyer’s

representation that he would get deferred adjudication and six months in county jail.

Appellant agreed that his trial counsel “worked hard” for him, answered all his and his

family’s questions, and investigated the case to the best of his ability.

Appellant’s trial counsel also testified at the hearing on the motion for new trial.

Levy testified that he requested permission to personally write the presentence

investigation (PSI) report for appellant because he felt it would aid appellant and the

court in the assessment of punishment. Levy “spent hours” with appellant to develop

appellant’s personal and social background in addition to meeting with appe1lant’s

parents in an effort to properly include information in the PSI report. Levy testified that he did not promise appellant that he would receive deferred adjudication in exchange for his guilty plea. At the conclusion of the hearing, the trial court denied appellant’s

motion for new trial.

ISSUE AND ANALYSIS

In a single issue, appellant contends the trial court abused its discretion in overruling appellant’s motion for new trial. Appellant’s motion alleged that counsel

rendered inefiective assistance by misinforming appellant about the punishment he would receive if he plead guilty.

To establish ineffective assistance of counsel, a criminal defendant must prove by a preponderance of the evidence that (1) his trial counsel’s representation was deficient in that it fell below the standard of prevailing professional norms and (2) there is a reasonable probability that, but for counsel’s deficiency, the result of the proceeding

would have been different. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Failure to show either

deficient performance or sufiicient prejudice defeats the claim of ineffectiveness. Strickland, 466 U.S. at 697.

“Misinformation concerning a matter, such as probation, about which a defendant is not constitutionally or statutorily entitled to be informed, may render a guilty plea involuntary if the defendant shows that his guilty plea was actually induced by the

misinformation.” Brown v. State, 943 S.W.2d 35, 42 (Tex. Crim. App. 1997). However, “a defendant’s claim he was misinformed by counsel, standing alone, is not enough for us to hold his plea was involuntary.” Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.—Houston [lst Dist.] 1996, pet. ref’d). A claim for ineffective assistance of counsel must be affirmatively supported by the record. See Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998); Tabora v. State, 14 S.W.3d 332, 336 (Tex. App.— Houston [l4th Dist.] 2000, no pet.). Therefore, in determining the voluntariness of a

guilty plea, the court should examine the record as a whole. See Martinez v. State, 981

S.W.2d 195, 197 (Tex. Crim. App. 1998). The court first must make a threshold determination that counsel erroneously and incompetently advised the appellant before

the second factor, concerning prejudice to the appellant, is reached. Labib v. State, 239 S.W.3d 322, 333 (Tex. App.—Houston [lst Dist.] 2007, no pet.).

At the original plea hearing, appellant testified that he understood the court was reserving the possibility of deferred adjudication, but was not promising to grant it.

Appellant also testified that Levy made it “very clear” to appellant that the court would not automatically assess deferred adjudication. At the hearing on the motion for new trial, appellant testified that he “knew there was a possibility that [he] could get the five years,” but was confident in his lawyer’s representation that he would get deferred adjudication and six months in county jail. Appellant’s counsel testified that he did not

advise appellant that he would receive deferred adjudication in exchange for pleading

guilty.

On appeal, appellant contends that “although he was not specifically promised that he would receive deferred adjudication, the summary of the discussions he had with counsel in their entirety led him to reasonably believe that he would receive probation.”

The record does not reflect that counsel erroneously and incompetently advised appellant; therefore, appellant has failed to meet the first prong of the Strickland test.2

Accordingly, we overrule appellant’s sole issue.

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We affirm the trial court’s judgment.

/s/ John Donovan

Justice

—

Panel consists of Chief Justice Frost and Justices Christopher and Donovan. Do Not Publish Tex. R. App. P. 47.2(b).

2

which courts have held a guilty plea to have been involuntary, the record contains In cases in

confirmation of the misinfonnation by counsel, or documents augmenting the defendant’s testimony that reveal the misinfonnation and show its conveyance to the defendant. See, e.g., Ex parte Battle, 817 S.W.2d 8] (Tex. Crim. App. 199]); Exparte Griffin, 679 S.W.2d l5 (Tex. Crim. App. 1984); Exparte Burns, 60] S.W.2d 370 (Tex. Crim. App. 1980); Helton v. State, 909 S.W.2d 298 (Tex. App.- Beaumont 1995, pet. ref‘ d).