Shannon v. State

708 S.W.2d 850, 1986 Tex. Crim. App. LEXIS 1263

• Court: Court of Criminal Appeals of Texas
• Decided: April 30, 1986
• Docket: 296-84
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was charged by indictment with the offense of delivery of a controlled substance, to-wit: diazepam, in an amount over 400 grams. It is undisputed that appellant agreed to plead guilty in exchange for the State’s agreement to recommend reduction of the charge to possession of over 400 grams of diazepam and to recommend two years confinement in the Texas Department of Corrections. In accordance with this plea bargain, the appellant on January 25, 1983, entered a plea of guilty to possession of diazepam and was sentenced to two years confinement in the Texas Department of Corrections.

On appeal, the Dallas Court of Appeals, in an unpublished opinion, reversed the conviction and remanded the case for reassessment of punishment only. Shannon v. State, (Tex.App.—Dallas, No. 05-83-00191-Cr, delivered January 30, 1984). We granted the State’s petition for discretionary review to determine whether the court of appeals erred in holding that the appropriate remedy for an unenforceable plea bargain occasioned by this Court’s holding in Ex Parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1983), is to remand the cause for reassessment of punishment only. Because we believe that fairness requires withdrawal of the plea, we will reverse the court of appeals.

Appellant attacked his conviction and sentence, relying upon Crisp, supra. Under the pre-amendment law, possession of diazepam was a Class A misdemeanor with a maximum punishment of one year confinement in the county jail. The Dallas Court of Appeals sustained appellant’s contention that the two year penitentiary sentence was unauthorized by law and remanded the case to the trial court for re-sentencing in accordance with the pre-1981 amendment law. Appellant did not file a petition for discretionary review.¹

The State argues that since this was a negotiated plea, the proper remedy is to remand the case to the trial court, putting both parties back in their original positions before the negotiated plea.

Both the United States Supreme Court and this Court have acknowledged the validity of plea bargaining under our current system of criminal justice. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). See also Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984); Ex Parte Burton, 623 S.W.2d 418 (Tex.Cr.App.1981); Bass v. State, 576 S.W.2d 400 (Tex.Cr.App.1979).

Brady, supra, appears to be the seminal case regarding the constitutionality of negotiated pleas. While it is true that strict contractual principles, without regard to due process, should not be blindly applied to negotiated pleas, the Supreme Court has often spoken of mutual benefit. See generally, Mabry, supra, and cases cited therein. In Brady, the Court specifically refused to hold that “it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State.” Brady, 397 U.S. at 753, 90 S.Ct. at 1471. In Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the Court spoke of ‘mutuality of advantage.’ Clearly, an exchange of benefits is constitutional. Moreover, if the exchange fails, for whatever reason, the defendant is entitled to either specific performance of the plea, or, withdrawal of the plea, depending upon the circumstances. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Ex parte Burton, supra; Joiner v. State, 578 S.W.2d 739 (Tex.Cr.App.1979). When a defendant attacks a conviction based upon a plea bargain, he attacks the benefit bestowed upon him (normally a reduced sentence) and seeks to withdraw from his end of the bargain.

The court of appeals, in holding that appellant was entitled to resentencing, relied on a long line of precedent establishing that, when an error relates only to punishment and punishment was assessed by the trial court, a defendant is entitled solely to resentencing and not to a new trial. Ex parte Stewart, 582 S.W.2d 144 (Tex.Cr.App.1979); Bullard v. State, 548 S.W.2d 13 (Tex.Cr.App.1977); Ramirez v. State, 527 S.W.2d 542 (Tex.Cr.App.1975). In applying this principle of law, this Court has never before distinguished the “negotiated guilty” plea from either “not guilty” pleas or “guilty” pleas without a recommendation. We take this opportunity to do so now.

In this case the conviction is based upon a plea bargain and the punishment assessed is an integral part of the agreement to plead guilty. The idea that error is “punishment error” only is incompatible with the negotiated plea and we therefore disavow such analysis in this specific area. When a defendant attacks the sentence he received, and for which he bargained,2 he is attacking the entire judgment of conviction. To permit resentencing in this situation is to bind only one party to the agreement. This is neither logical nor fair.

In the case sub judice an agreement, fair on its face when executed, has become unenforceable due to circumstances beyond the control of either party to the agreement. As the Supreme Court stated in Brady, a plea must stand unless there is misrepresentation by the State, which includes unfulfilled or unfulfillable promises. Brady, supra, 397 U.S. at 755, 90 S.Ct. at 1472.

The agreement to plead guilty to possession of diazepam, a felony, and the recommendation for two years confinement in the penitentiary is unfulfillable since possession of diazepam was a misdemeanor under pre-amendment law. Since the appellant sought relief from the agreement, we see no reason why the State should be bound to its recommendation of reduction of the charge to a misdemeanor.

We believe that such a result is constitutionally appropriate and in fact has been approved by the Supreme Court. In San-tobello, supra, the defendant had plead to a lesser charge in exchange for an agreement by the prosecution not to make a recommendation on punishment. When the Court invalidated the plea, it noted in a footnote that, should the defendant be permitted to withdraw his plea, he would re-plead to the original charge, not the reduced charge. Santobello, supra, 404 U.S. at 263 n. 2, 92 S.Ct. at 499 n. 2. This is consistent with our determination of the issue presented here.

We hold, therefore, that when a defendant, who has entered a negotiated plea of guilty, challenges the conviction and is successful, the appropriate remedy is specific performance of the plea, if possible, or, if not, withdrawal of the plea, with both parties, including the State, returned to their original positions.

The judgment of the court of appeals is reversed and the cause is remanded to the trial court with orders that the trial court withdraw appellant’s plea and that appellant replead to the indictment in cause no. F-82-81097-PR.

IT IS SO ORDERED.

1 . Initially we note an issue which is not before the Court and which therefore will not be decided. The appellant challenged the voluntariness of his plea by challenging the admonishments given. While the court of appeals agreed that the admonishments were improper, it decided that the appellant had failed to show harm. See Fuentes v. State, 688 S.W.2d 542 (Tex.Cr.App.1985); Hurwitz v. State, 700 S.W.2d 919 (Tex.Cr.App.1985.)

2 . All emphasis is supplied by the author of this opinion unless otherwise indicated.