Polly, Derrick Anthony

• Court: Court of Appeals of Texas
• Decided: March 2, 2015
• Docket: WR-63,637-03
• Status: Published

Opinion

(p3^3^-^ Date: February 23,2015

Derrick Polly HOTDOiM DEWflEI 609271 Robertson Unit date.°3-13*15" 12071 FM 3522 Abilene, TX 79601

Abel Acosta Clerk, Texas Court of Criminal Appeals DECEIVED IH P.O. Box 12308, Capitol Station COURT OF CPIMINAL APPEALS Austin, TX 78711-2308 MAR-02 2015 RE: WR-63,637-03; Rule 79.2(d) Notion AbelAcosia,Clerk Dear Clerk:

Enclosed is my second Rule 79.2(d) motion in the above-referenced writ record. I am filing this second motion to higlight that I meat all four critera under Ex parte Moreno, to warrant reconsideration on the Court's own motion.

Please, in presenting this motion to the Court, will you please highlight that I am focusing the Court's attention, specifically, on the four Moreno factors, and requesting them to find that I meet each of the four factors.

Please note that my first Rule 79.2(d) motion did not highlight the four Moreno factors, although I did cite to Moreno as grounds for reconsideration.

Thank you for your service and prompt action in this matter.

Sincerely,

jjc ^2^ -?&fiji.

C- Derrick Polly

cc: file CASE NO. WR-63,637-03

IN THE TEXAS COURT OF CRIMINAL APPEALS

EX PARTE DERRICK POLLY

MOTION SUGGESTING THE COURT MOVE ON ITS OWN INITIATIVE PURSUANT TO RULE 79.2(d) TEXAS RULE'S APPELLATE PROCEDURE

TO THE HONORABLE JUDGES OF SAID COURT:

COMES NOW Derrick Polly, Pro se Movant seeking to move the court with this suggestion, that the Honorable Court reconsider on its own initiative pur suant to Rule 79.2(d) of the Texas Rules of Appellate Procedure its summary denial of Claim One in this: Original Post'Conviction habeas, corpus applica tion, in support of this instrument Movant will submit the following:

I. PROCEDURE FOR CORRECTING ERROR

Rule 79.2(d) provides a procedure for granting relief where subsequent

Supreme Court holdings demonstrates that this Court's original denial of relief was objectively unreasonable. See Exparte Moreno, 245 S.W.3d 419 (Tex.Crim. App.2008)(rehearing and relief grant after Supreme Court clari fied this Court's interpretation of Penry -I as being objectively unreason

able). See also Ex Parte Moussazadeh, 361 S.W.3d 684,689(Tex.Crim.App.2012) (Concluding original decisions in Evans and Moussazadeh II "were incorrect").

II. ORIGINAL GROUND ONE

On February 19,2009, Polly filed his original 11.07 habeas application in this case. In his Ground One, Polly alleged his trial counsel was ineff

ective by failing to convey to him all the terms of the State's plea offer,

-1- and counsel acted against Polly's will, and without his consent or knowledge

when counsel returned an accepted::plea offer as refused. See WR-63,637-03, 11.07 Writ'Application Page 6; also see Memorandum of Law Page 4-8. Polly alleged the following facts:

"On 12/06/02, I informed trial counsel that I would accept the ten year plea bargain offer the State presented. At the time counsel did not inform me that one of the terms of the plea agreement that no counter offers would be accepted. On 12/10/02, I was taken to court for a plea bargain sentencing hearing, right before the hearing begin I ask defense counsel to ask the State's Attorney if I could perserve my right to appeal with the plea agreement? Trial Counsel with out informing me that no counter offers was one of the agreement terms took it upon himself to return the plea agreement as refused, and announce ready for trial. Such acts were against my will and without my consent or knowledge " id. at £age" 6'.' III. ORIGINAL DENIAL OF GROUND ONE ' Polly was never provided an opprotunity to develop the material facts for ground one. This Court summarily denied the claim. In light of the summary denial it appears this Court may have believe it was reasonable under Strickland v. Washington, 104 S.Ct-. 2052(1984) for defense counsel to neglect to advise Polly that his request to preserve his right to appeal would be a rejection of the plea offer. Or this Court may have viewed Defense Counsel Aguilar's failure to convey the no-counter offer stipulation to be deficient under Strickland, but in light of further pro ceedings, in which the State withdrew the plea offer, Polly could not demonstrate the required prejudice necessary to grant relief under Strickland.

IV. SUPREME COURT'S DECISION

The United; States Supreme Court has issued two 2012 decisions in Lafler v. Cooper, 132 S.Ct. 1376, and Missouri v. Frye, 132 S.Ct. 1399, that demonstrates this Court's original summary denial of relief of the ineffective assistance of counsel claim relating to the issue of a loss plea offer due to the actions of trial counsel was an obvious and unreason-

-2- able denial of relief because (1) the allegations of fact supported by the record before the Court illustrated POLLY was entitled to an evidentiary

hearing for the opportunity to prove prejudice, and (2) the Lafler Court

held, "If a plea bargain has been offeredr a defendant has the right to

effective assistance of counsel in considering whether to accept it. If

that right is denied, prejudice can be shown if loss of the plea oppor

tunity led to a trial resulting in a conviction on more serious charges

or the imposition of a more severe sentence." Id. See also Missouri v.

Frye, supra.,(noting that defense counsel must "promptly communicate

and explain" plea offers under the professional rules-in numerous jur

isdictions) Id. at 1408.

V. ARGUMENT

Polly asserts that the facts of his case present compelling circumstances

in light of the fact the Supreme Court in its 2012 rulings in Lafler v. Cooper,

132 S.Ct." 1376, and.Missouri v. Frye, 132 S.Ct. 1399, demonstrates this

Court's 2010 decision denying Polly's writ of habeas corpus application

filed pursuant to Article 11.07 of the Texas Code of Criminal Procedure

asserting a claim of ineffective assistance of trial counsel for counsel

failing to inform of all of the terms of the plea offer, specifically, that no-counter offers would be accepted, and ancounteroffer would be

considered a rejection of the plea offer, as well as counsel .returning

the plea offer for 10. years as..: refused and announcing ready for trial

against Polly''"s will, and without his consent or knowledge was objectively unreasonable in light of clearly established federal law.. Strickland v.

Washington, 104 S.Ct. 2052 (1984).

-3- Polly contends that his case fits squarely between Lafler and Frye to fall into the boundaries of establishing compelling circumstances

as identified in Ex Parte Moreno, 245 S.W.3d 419(Tex.Crim.App.2008).

As compared, in Lafler v. Cooper, supra., the habeas petitioner ...

shot a female in her buttock, hip, and abdomen. He was charged under

state law with assault with intent to murder. A plea offer was made

twice by the State. In communicating with the trial judge Lafler

admitted guilt and expressed a willingness to accept the plea offer.

Lafler was convinced by his defense attorney to reject the offer

because trial counsel believed that the State could not proove intent

to murder since the victim had been shot below the waist. The case

went before a jury, and Lafler was convicted:;as charged, and received

a sentence' larger than what the plea offer was for. Following direct

review by the" State' appellate courts the case went before the federal

district court, to seek habeas relief for ineffective assistance of trial

counsel relating to the loss plea offer. The district court granted a

conditional writ, ordering specific performance of the original plea

agreement. The federal courtcof appeals affirmed, and the Supreme Court

granted certiorari.

Examining Lafler's claims, the Supreme Court held that Strickland

applies as clearly established law, to the rejection of a plea offer

based on deficient advise. Id. at 1390. Applying Strickland, the court

observed that the parties had stipulated that counsel's performance was

deficient. Regarding prejudice, the court held that Lafler had successfully

demonstrated prejudice by showing that "there is a reasonable probability

he and the trial court would have accepted the guilty plea under the plea

agreement."In addition, as a result of not accepting the plea and being

-4- convicted at trial Lafler received a sentence three times greater than he would have received under the plea. This the court held satisified the Strickland test for ineffective assistance during plea bargaining. In Missouri v. Frye, Supra., the defendant was charge with a Class D felony offense of driving with a revoked license. The prosecu

tion sent two written plea offers ;to Frye's attorney, the second of

which would have reduced the four year charge to a misdemeanor and

recommended a 90-day sentence. Defense Counsel let both offers expire

without communicating anything to Frye. Before Frye's preliminary

hearing he was again arrested for driving with a revoked license.

Frye subsequently entered a plea of guilt without a plea agreement.

The trial court sentence him to three years in prison. Id. at 1404.

Frye filed for postconviction relief in state court, alleging

that his counsel""s failure to inform him of the plea offer violated

his right to effective assistance of counsel. The trial court rejected the claim, but the Missouri Court of Appeals reversed and granted

relief based, on Strickland. The state court ordered Frye's guilty plea withdrawn so he could proceed to trial or agree to plead guilty

to any offer the prosecutor deemed appropriate. The Supreme Court

granted certirari. That court held defendants are entitled to effective

counsel during plea negoiations, even where a plea offer is rejected.

The Court remanded Frye's case back to the state court for it to deter

mine if Frye could show prejudice, especially in light of his intervening

arrest for the same offense while the current charges and plea offer were

pending. Id. at 1411.

-5- As compared, the favorable plea offer was conveyed to Lafler, Polly's

trial counsel did inform him that a plea offer for 10 years had been made. See WR-63,637,03, Page 6; see also Memorandum of Law In Support

of Writ-Habeas corpus Application, Pages 4-8; and Court Reporter's Record Pg. 20, Lines 12-17. Lafler indicating a willingness to accept

the plea offer, but rejected the offer on the deficient acts of counsel.

Polly having informed his trial counsel he would accept the plea offer,

(CRR. Vol.3, Pg.20) supra)'but due to counsel's deficiency of failing to ::ihform..:x,__ Polly of the no-counteroffer term within the plea offer Polly made a counteroffer when he ask counsel on Decemeber 10,2002, minutes before

the pretrial hearing if counsel would ask the prosecutor if Polly could

preserve his right to appeal with the plea offer(see CRR. Vol.3, Pg.25)

counsel in an act of deficiency neglected to inform Polly at that time

that such request would be a rejection of the plea offer, (see CRR. Vol.8,

Pg. -70, Lines 1-25; Pg.71, Lines 1-5) See also Missouri v. Frye, supra,,

(noting that defense counsel must "promotly communicate and explain" plea

offers under the professional rules in numerous jurisdiction). Counsel as

well neglected toinform Polly that counsel was considering Polly's request

as a rejection of ths plea offer, and would be returning the plea offer as refused (see CRR.Vol.8,Pg.70, Lines 14-25; Pg.71, Lines 1-5).

The above facts were asserted in Polly's original 11.07 habeas corpus"

application with the supporting cited records submitted-to.this Court, however, this Court in an act of unreasonableness fail-led to find Polly'"s

trial counsel ineffective under Strickland in light of such facts which the Supreme Court in applying Strickland's two prong test to comparable

-6- facts in Lafler and Frye found that under established law such facts support

a colorable Constitutional claim under the Sixth Amendment righ to effective

-assistance of counsel. Thus, this Court's 2010 decision denying Polly habeas

relief is identifible/as an unreasonable application of the Strickland v.

Washington standard.

' In Ex parte Moreno, 245 S.W.3d 419 (Tex. Crim. App. 2008), this Court

announced that absent compelling circumstances the liklihood of the Court

exercising its jurisdiction under Rule 79.2(d) is rare. However, the Moreno

Court acknowledged "habeas corpus is an equitable remedy" and "equity aids

the diligent". The Court then identified four compelling factors that Polly

asserts are present in his case and illustrate the validity of the submission

of this motion. These four factors compelled the Moreno Court to relinquish

itsr"hesitation to reconsider and grant relief in the [Moreno] case."" These

four factors being:

• Moreno objected at trial;

• Moreno raised his claim timely in an initial writ application;

• After Penry III clarified the law, Moreno renewed-his claim in a subsequent writ application, which was dimissed as sucessive;

• Moreno then filed a motion suggesting this Court reconsider the issue from his initial writ application on the Court's own motion under Rule 79.2(d).

See Ex parte Moreno, 2^5 S.W.3d at 428. . . .

Each of the four factors found in the'Moreno case is present in Polly's

case.

• Polly objected .at trial

The record."-reflects that defense, counsel Aguilar went before the trial

court and stated the plea offer of 10 years, had been returned as refused

by Polly. Immediately, Polly objected, informing the trial court that he

-7- had not refused the plea, offer. Polly explained that he had accepted the

offer and asked Aguilar to ask the State if he could preserve his right to

appeal. (CRR. Vol. 3, p. 25; Lines" 1-6)

• Polly raised his claim.in his intial application

The record;reflects that Polly raised his plea bargin claim as Claim One

in his initial application. (WR-63,637-03; Application, p. 6)

• After Lafler/Frye, Polly, renewed his claim in a subsequent application

The record reflects that Polly first renewed his ineffective counsel claim

in 2012, the very year of the Lafler/Frye decisions clarifying the correct

application of the Strickland, standard to his plea bargin claim. Like Moreno,

this Court dimissed Polly's subsequent application. .(WR-63,637-06)

• Polly filed a Rule 79.2(d) Motion in 201'3"/" :

Despite the apparant merit of Polly's claim, the record reflects that •

Polly timely presented a Rule 79.2(d) ..motion suggesting the Court reconsider

his intial writ application in light of Lafler/Frye, which the Court inexplic

ably denied without opinion- (WR-63,637-03)• Polly presented an 18 page Rule

79.2(d) motion that comprehensibly demonstrated the Court has unreasonably

applied the Strickland standard to his initial Claim One.

This second Rule 79..2(d) motion is presented to the.Court so it.may decide

whether Polly, having clearly met the four Moreno factors, has been overlooked

on the critical facts of his Claim One. See. Ex parte Moreno, 245 S.W. 3d,

at 431 (KELLER, P.J., concurring):' In the alternative, this second Pule 79.2(d)

motion is presented to demonstrate that the Court must have overlooked the

fact that Polly meets each of the four. Moreno factors, such that this Court

should "reconsider the application in order to correct what the Supreme Court

has deemed an obvious and.unreasonable error. Id., at 431.

-8- PRAYER

Because Polly is clearly entitled to the 10-year plea offer lost as a

result of Aguilar's ineffective assistance of counsel, because this Court

either overlooked Claim One of the initial .application, or unreasonably applied

the Strickland standard to Claim One, Polly respectfully prays the Court

will find he meets each of the four Moreno factors, and grant him reconsider

ation of his initial Claim One on the Court's own motion pursuant to Rule

79.2(d), Texas Rules of Appellate Procedure.

EXFCUTEP.this 23 of February , 20 -15 .

Respectfully submitted,

Derrick. Polly /

-9-