Blake Anthony Monakino v. State
535 S.W.3d 559
Tex. App.2016Background
- Blake Monakino pleaded guilty to aggravated assault (second-degree felony) on Jan. 24, 2014, without an agreed punishment recommendation; the trial court accepted the plea and ordered a PSI.
- Sentencing occurred April 10, 2014; court imposed six years' confinement; the written judgment stated "Appeal waived," but the clerk’s certification in the record initially indicated appellant had the right to appeal.
- Appellant filed a pro se notice of appeal on April 17, 2014, and repeatedly requested appointment of appellate counsel; the district clerk noted appellate counsel as "to be determined." The trial court denied some pro se filings and delayed appointing appellate counsel.
- Trial counsel did not move to withdraw until November 6, 2014; appellate counsel was appointed November 19, 2014 — more than six months after sentencing and after the 30-day motion-for-new-trial period had expired.
- Appellant contended he was effectively unrepresented during the 30-day period for filing a motion for new trial and that trial counsel failed to investigate or present mitigating/mental-health evidence at sentencing. The Court held the record showed effective abandonment and granted an abatement so appellant may file an out-of-time motion for new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant was deprived of counsel during the 30-day motion-for-new-trial period | Monakino: trial counsel believed he had no right to appeal and thus gave no advice, effectively leaving him unrepresented during the critical stage | State: initially argued appellant lacked the right to appeal but ultimately conceded appellant was not adequately represented during the time frame | Court: appellant rebutted presumption of continued adequate representation; effective deprivation of counsel established |
| Whether deprivation of counsel entitles appellant to file an out-of-time motion for new trial | Monakino: entitlement requires showing prejudice by a "facially plausible claim" that could have been developed in a motion for new trial (e.g., counsel failed to investigate mitigation/mental-health records) | State: argued appellant’s allegations were conclusory and not facially plausible (citing Cooks, Mashburn) | Court: appellant alleged specific mitigation omissions tied to PSI references; claim found facially plausible — abatement ordered to allow out-of-time motion |
| Whether counsel was ineffective for failing to investigate/present mitigating evidence at sentencing | Monakino: counsel relied only on PSI, called no witnesses, did not obtain hospitalization records or seek psychological evaluation; more investigation was warranted | State: argued allegations were insufficiently specific to show plausible prejudice | Held: Court treated issue as adequately pleaded for purposes of abatement; did not decide ineffective-assistance claim on merits but allowed motion-for-new-trial opportunity |
| Remedy and procedure following finding of deprivation | Monakino: requested abatement and remand to permit filing of out-of-time motion for new trial | State: did not oppose abatement after conceding inadequate representation | Court: abated appeal, remanded, restarted appellate timetable; motion-for-new-trial period runs from district clerk’s receipt of opinion |
Key Cases Cited
- Cooks v. State, 240 S.W.3d 906 (Tex. Crim. App.) (right to counsel during motion-for-new-trial stage; prejudice requires facially plausible claim)
- Bearman v. State, 425 S.W.3d 328 (Tex. App.—Houston [1st Dist.]) (facially plausible ineffective-assistance claim standard)
- Green v. State, 264 S.W.3d 63 (Tex. App.—Houston [1st Dist.]) (criteria for rebutting presumption that trial counsel continued to represent during post-trial stage)
- Wiggins v. Smith, 539 U.S. 510 (U.S. 2003) (standard for assessing counsel’s investigation of mitigating evidence)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (ineffective-assistance-of-counsel standard)
- Lopez v. State, 462 S.W.3d 180 (Tex. App.—Houston [1st Dist.]) (failure to investigate/present mitigation can establish deficient performance and prejudice)
- Massingill v. State, 8 S.W.3d 733 (Tex. App.—Austin) (trial counsel’s post-conviction obligations to advise about appeal)
- Mashburn v. State, 272 S.W.3d 1 (Tex. App.—Fort Worth) (insufficiently specific allegations defeat claim of prejudice from lack of counsel during new-trial period)