Presley, Ronald, PD-0876-15

Background

Petitioner Ronald (Robert) Presley pleaded guilty in exchange for a 4-year sentence to run consecutively to a specified prior Dallas County sentence (Cause No. F812704PM); plea induced by the State’s offer.
The trial court’s oral cumulation order stated the 4-year sentence "will run consecutive to any other sentence that you’re currently serving."
The State later filed a nunc pro tunc to modify the judgment’s cumulation order, effectively changing which prior sentence Presley’s 4-year term would run consecutive to (from F812704PM to F88-86965-JL).
The Twelfth Court of Appeals affirmed the trial court’s judgment as modified, holding that when Tex. Code Crim. Proc. art. 42.08(b) applies the trial court need not specify the prior conviction for cumulation because TDCJ will know which sentence to cumulate.
Presley sought discretionary review; the Court of Criminal Appeals refused review on November 5, 2015. Presley then moved for rehearing arguing the nunc pro tunc improperly altered material plea terms and allowed the State to evade a bargained-for promise.

Issues

Issue	Presley’s Argument	State’s Argument	Held
Whether a nunc pro tunc may be used to change the prior sentence specified for cumulation after a plea bargain	Nunc pro tunc cannot be used to change material plea terms; the State breached the plea agreement by altering the cumulation target and thereby received a more favorable bargain	The nunc corrects a clerical/technical error; under art. 42.08(b) the trial court need not identify the specific prior conviction because TDCJ will apply the correct cumulation	Court of Appeals: trial court need not specify the prior conviction when art. 42.08(b) applies; PDR was refused by CCA (no reversal)
Whether a nunc pro tunc may be used to alter a judgment to reflect what the court wishes it had done rather than what was actually rendered	Presley: such use subverts plea-bargain finality and Santobello protections; it improperly rewrites the contract	State: nunc pro tunc is an appropriate vehicle to make correct clerical entries to reflect the intended sentence structure	Precedent requires nunc pro tunc reflect the judgment actually rendered; the appellate outcome allowed the modification in this case (PDR refused)
Whether a defendant has a protectable finality interest when the State seeks to change a plea term post-judgment	Presley: defendant’s interest in finality and fulfillment of prosecutor promises requires protection and prevents State from unilaterally improving its bargain	State: finality concerns are satisfied because the record and TDCJ implementation settle cumulation; administrative correction is acceptable	Court of Appeals sided with State’s administrative/implementation rationale; CCA refusal leaves that result intact
Whether the trial court’s imprecise oral order ("any other sentence you’re currently serving") is sufficient under art. 42.08(b)	Presley: vague oral order allowed the State to substitute a different prior sentence, materially altering the bargain	State: the imprecise wording is permissible; TDCJ will apply cumulation to the appropriate prior sentence	Appellate court held the imprecise order was acceptable when art. 42.08(b) applies; PDR refused

Key Cases Cited

Blanton v. State, 369 S.W.3d 894 (Tex. Crim. App. 2012) (nunc pro tunc must reflect the judgment actually rendered)
Collins v. State, 240 S.W.3d 925 (Tex. Crim. App. 2007) (limitations on proper scope of nunc pro tunc corrections)
Moore v. State, 295 S.W.3d 329 (Tex. Crim. App. 2009) (plea-bargain agreements treated as contracts)
Santobello v. New York, 404 U.S. 257 (U.S. 1971) (when a plea rests on prosecutor promise, that promise must be fulfilled)
Ex parte Perez, 398 S.W.3d 206 (Tex. Crim. App. 2013) (state interest in finality of convictions)
Ex parte Moreno, 245 S.W.3d 419 (Tex. Crim. App. 2008) (finality and repose of convictions as legitimate state interests)
Gutierrez v. State, 108 S.W.3d 304 (Tex. Crim. App. 2003) (seriousness of proceedings where defendant waives fundamental rights)