Ex Parte Broadway
Lead Opinion
OPINION
delivered the opinion of the Court
Applicant, Terrence Ladon Broadway, pled guilty to the charges of delivery of a controlled substance and retaliation. He chose to enter an open plea after declining the State’s plea-bargain offer. The judge assessed punishment at 25 years’ imprisonmеnt. In his applications for writs of ha-beas corpus, Applicant alleged ineffective assistance of counsel on two grounds: (1) that his counsel failed to inform him of his right to appeal his sentence and (2) that his counsel allowed him to sign a waiver of appeal before he was sentenсed. In response, one of his attorneys filed an affidavit stating that Applicant waived his right to appeal to induce the State to consent to the waiver of a jury trial. We filed and set this case for submission to determine whether a defendant can voluntarily waive his entire appeal as a part of a plea, even when sentencing is not agreed upon, where
I. Facts
Applicant was charged with delivery of a controlled substance, a second-degree felony, and retaliation, a third-degree felony.
Before Applicant entered his plea, the judge reviewed the ojotions available to him: “Jury trial or you could take a plеa bargain, which is a minimum of 25 years in prison or do an open plea which [would] allow me to consider giving some kind of drug treatment on probation.”
In his applications for writs of habeas corpus, Applicant alleged ineffective assistance of counsel on the grounds that his attorneys failed to inform him of his right to appeal his sentence and that they allowed him to sign a waiver of appeal before being sentenced. In response, one attorney filed an affidavit stating that Applicant “waived his right of appeal in order to induce the [S]tate to waive its right to force a jury trial in order that he could ask the court to give him deferred adjudication probation with drug treatment.”
II. Analysis
A defendant in any criminal action has the right of appeal.
In Ex parte Delaney,
A. Applicant’s waiver was the result of a bargain.
A key component to our analysis in Delaney was that the waiver of appeal was not the result of a bargain.
B. Applicant knew the consequences of his waiver.
In Delaney, we concluded that thе defendant’s waiver of appeal was not made voluntarily, knowingly, and intelligently because the consequences of the waiver were not “known with certainty.” Delaney,
First, what is the significant difference between a plea agreement that establishes a maximum punishment and a plea agreement that establishes a range of punishment? Why is the former acceptable and the latter unacceptable when stating thе maximum punishment merely delineates one boundary of the possible range? It does not make sense that adding a reference to the minimum sentence in a plea agreement would make an otherwise valid waiver invalid just because the maximum has a corresponding minimum.
Second, it is problematiс to say that Delaney’s recommended plea agreement, one which states the actual or maximum punishment, will always produce a valid waiver. The danger in that guarantee is that a judge who proceeds to final adjudication of guilt after the revocation of community supervision need not assess punishment in accordance with any plea agreement. Von Schounmacher v. State,
The other point to be made with regard to the known consequences of waiver is that certainty as to punishment cannot be expected when a defendant opts to decline a plea bаrgain. In this case, Applicant chose to enter an open plea. The fundamental nature of an open plea is uncertainty. If Applicant had agreed to a plea bargain, he would have obtained the benefits provided by Article 26.13, namely an announcement from the judge before any finding on the plea as to whether the court
III. Conclusion
In conclusion, we agree with the trial court that Applicant voluntarily, knowingly, and intelligently waived his right to appeal. We deny Applicant relief and hold that a defendant may knowingly and intelligently waive his entire appeal as a part of a plea, even when sentencing is not agreed upon, where consideration is given by the State for that waiver.
Notes
. The record сonsistently refers to "probation.” However, Article 42.12 of the Code of Criminal Procedure uses the term "community supervision.” Code Crim. Proc. Ann. art. 42.12. Previous cases have used the terms interchangeably. See Ex parte Insall,
. Though Applicant admits in his applications that he signed a waiver of appeal, his plea agreement form, signed on October 16, 2006, bears his mark next to the paragraph that reads, "I understand that I have a right to appeal to the Court of Appeals.”
.At first glance, Applicant’s decision to entel-an open plea and waive his right to appeal appears odd because the primary advantage to entering an open plea is a relatively unlimited right to appeal. Tex R.App. P. 25.2(a). In contrast, in a plea-bargain case, the Rules of Appellate Procedure impose restrictions on a defendant's right to appeal. Id. Clearly, Applicant found аn open plea more appealing than the State's plea-bargain offer, even without its primary benefit.
. However, in a plea-bargain case, a defendant may appeal only those matters that were raised by a written motion filed and ruled on before trial, or after getting the triаl court's permission to appeal.
. Note that the Code of Criminal Procedure restricts a defendant's ability to waive the right of trial by jury in a capital felony case. Code Crim. Proc Ann. art. 1.14.
. The court placed the defendant on deferred-adjudication probation, but the defendant violatеd the terms of his community supervision. Delaney,
. Delaney emphasizes the absence of a bargain, but only considers agreed recommended sentences to the exclusion of other bargaining possibilities: “When a presentencing waiver of appeal was not bargained for in exchange for an agreed upon sentence, concerns as to the validity of the waiver are raised.'' Delaney,
.Applicant’s plea agreement form documents his choice of an open plea over a plea bargain. Specifically, his plea was оpen as to community supervision with drug treatment. There is no agreed sentence indicated.
. This is not the first time we have veered from Delaney's standard for certainty with regard to the consequences of a waiver. In Insall, we remarked, "Under the reasoning of Delaney, applicant's waiver of his right to seek habeas relief was involuntary or not 'knowingly and intelligently made’ because the plea agreement contained only the range of punishment and not a certain punishment to be imposed if guilt was adjudicated.” Insall,
. We note that a plea bargain will nоt continue to protect a defendant who receives deferred-adjudication community supervision if the court proceeds to adjudication at a later date. If a defendant violates the terms of the deferred-adjudication community supervision, the court will no longer be limited by the рrocedures of Article 26.13, which require that the judge sentence in accordance with the plea agreement or allow the defendant to withdraw the plea. Von Schounmacher, 5 S.W.3d at 223 (holding that "regardless of whether the deferred adjudication was part of a plea bargain, recommended by the prosеcution, imposed by the trial court without objection by the appellant, or granted under other circumstances, once the trial court proceeds to adjudication, it is restricted in the sentence it imposes only by the relevant statutory limits").
Concurrence Opinion
filed a concurring opinion in which JOHNSON, J., joined.
I join the Court’s opinion, and I file this opinion only to cоmment on its use of the term “plea-bargain case.”
As the Court’s opinion points out, ante at note 3, we have given that term a special definition in Rule of Appellate Procedure 25.2(a)(2): “In a plea bargain case-that is, a case in which a defendant’s plea was guilty or nolo contendere and the punishment did not excеed the punishment recommended by the prosecutor and agreed to by the defendant ....” (In such a case a defendant’s right to appeal is limited to “only (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court’s permission to appeal.”) This case was not a plea-bargain case under that definition, and
But plea bargains, in the common meaning of the term, may be of many other kinds that do not involve agreed recommendations of punishment by the prosecutor. The most frequent may be a defendant’s agreement to plead guilty in one case (without an agreement on punishment) in return for the dismissal of, or an agreement not to bring, prosecutions for other offenses. Other bargains may affect the punishment without coming within the
Today’s decision insures that such plea-bargain agreements, even though they do not come within the definition in