             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                          NO. PD-0891-15


          ARTHUR FRANKLIN MILLER, JR., Appellant

                                   v.

                       THE STATE OF TEXAS


     ON APPELLANT’S MOTION FOR REHEARING AFTER
         OPINION ON DISCRETIONARY REVIEW
          FROM THE FIFTH COURT OF APPEALS
                   COLLIN COUNTY


     N EWELL, J., filed a concurring opinion in which W ALKER J.,
joined.

     Appellant complains that he waived his right to a jury based upon

bad advice from his attorney regarding his eligibility for probation. This

resulted in his ineligibility to receive probation at punishment. There is

no disagreement that this amounted to deficient performance.          The

disagreement is about what an Appellant must do to establish that he was
                                                     Miller Concurring – 2

prejudiced by his attorney’s performance. I agree with the Court that

Appellant need not prove that he would have actually received probation.

He need not prove that receiving probation was even a realistic

possibility.     He must prove that his attorney’s bad advice resulted in

making a decision to waive rights or procedures he would not have

otherwise waived had he been given correct advice. That’s why I join the

Court’s opinion. I write separately to explain why the dissents convinced

me to do so.

      At the outset, I disagree with framing the Court’s opinion as a great

expansion of the Sixth Amendment right to effective assistance of counsel

rather than a faithful application of Supreme Court precedent. The Court

does not cut a new standard out of whole cloth to evaluate Appellant’s

claims.      Rather, the Court decides that the standard set out by the

Supreme Court in Hill v. Lockhart–focusing upon how the deficient

representation affected the defendant’s decision-making–is best suited for

addressing the type of ineffective assistance complaint lodged in this

case.1      But that standard has always been a part of the traditional




      1
          474 U.S. 52 (1985).
                                                                    Miller Concurring – 3

Strickland v. Washington standard.2

       Rather, drawing a distinction regarding the standard of prejudice

based upon whether there was “an entire trial proceeding” would greatly

diminish the right to effective assistance of counsel and undermine the

purpose behind both Strickland and Hill.                   When the Supreme Court

decided Hill v. Lockhart it applied the Strickland standard to a completely

different type of proceeding than the one in Strickland.3 The focus was

protecting a defendant’s Sixth Amendment right to the effective

assistance of counsel not the reliability of a particular type of proceeding.4

Later, the Court made clear in Roe v. Flores-Ortega, that prejudice results

from the denial of the “entire judicial proceeding” to which a defendant

is entitled.5    Yet requiring proof that a defendant would have actually

received probation had he received proper advice places the emphasis



       2
          Id. at 57 (“Although our decision in Strickland v. Washington dealt with a claim of
ineffective assistance of counsel in a capital sentencing proceeding, and was prem ised in
part on the sim ilarity between such a proceeding and the usual crim inal trial, the sam e two-
part standard seem s to us applicable to ineffective-assistance claim s arising out of the plea
process.”).

       3
           Id.

       4
        Id. at 56 (“W here, as here, a defendant is represented by counsel during the plea
process and enters his plea upon the advice of counsel, the voluntariness of the plea
depends on whether counsel’s advice ‘was within the range of com petence dem anded of
attorneys in crim inal cases.’”) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)).

       5
         528 U.S. 470, 483 (2000). Notably, the Court referred to a “judicial” proceeding.
It did not draw a distinction between a trial proceeding and a plea proceeding.
                                                                    Miller Concurring – 4

upon the proceeding rather than the effectiveness of the representation.6

The Supreme Court rejected this approach in Lafler v. Cooper.7

       There, the defendant chose to reject a plea bargain offer based

upon the erroneous advice of counsel and proceed to trial.8 The federal

district court granted relief and the Sixth Circuit Court of Appeals

affirmed, which lead to the State petitioning the Supreme Court to hold

that relief was inappropriate.9               The Court summarized the State’s

arguments as simply claiming that the defendant received a fair trial so

he could not complain that counsel’s advice was deficient.

       In the end, petitioner’s three arguments amount to one
       general contention: A fair trial wipes clean any deficient
       performance by defense counsel during plea bargaining.10

The Court rejected this argument, noting that it is insufficient to simply

point to the guarantee of a fair trial as a backstop that inoculates any

errors in the pre-trial process.11             Yet, holding that Appellant was not


       6
         For this reason I am equally unpersuaded that W eaver v. Massachusetts, 137 S.Ct.
1899 (2017), a case involving the failure to object to the lack of a public trial, has anything
to do with this analysis.

       7
           566 U.S. 156 (2012).

       8
           Id. at 160.

       9
           Id.

       10
            Id. at 169.

       11
            Id. at 165.
                                                    Miller Concurring – 5

prejudiced in this case because he received an entire trial proceeding

adopts the same argument rejected by the Supreme Court.

     It is true that the Supreme Court wrote in Lafler that a defendant

must show “that the conviction or sentence, or both, under the offer’s

terms would have been less severe than under the judgment and

sentence that in fact were imposed.”12    But that observation must be

considered in the context of that case. The Supreme Court relied upon

a record that showed Cooper had received a sentence that was 3 ½ times

greater than he would have received under the plea.13 That holding does

not translate to a requirement that Appellant prove he actually would

have received probation. Here, a lack of a probated sentence does not

tell us anything because the trial court was not statutorily authorized to

award such a sentence. In this case, Appellant has proven that he would

have had a better outcome, at least as to punishment, had he not waived

his right to a jury because it would have at least provided him with an

opportunity he absolutely did not have under the proceeding he received.

     This understanding is reinforced by the Supreme Court’s recent




     12
          Id. at 164.

     13
          Id. at 174.
                                                                  Miller Concurring – 6

decision in Lee v. United States.14 There, the defendant was charged with

possession of ecstasy with intent to distribute, and, as the Court

described it, the defendant’s “prospects of acquittal at trial were grim.” 15

However, his primary concern was not how much time he might serve if

found guilty. Rather, he was concerned that a conviction would result in

deportation. His attorney incorrectly advised him that he would not be

deported if he took the plea deal.               He filed a motion to vacate his

conviction        and      sentence    arguing      that    his    attorney       provided

constitutionally ineffective assistance. The Government argued that the

defendant had not shown prejudice because he had “no viable defense at

trial, he would almost certainly have lost and found himself still subject

to deportation, with a lengthier prison sentence to boot.” 16 According to

the Government, the defendant’s only hope at trial was that “something

unexpected and unpredictable might occur that would lead to an

acquittal.” 17




       14
            137 S.Ct. 1958 (2017).

       15
         Id. at 1965. Police obtained a search warrant for the defendant’s house where
they found 88 ecstasy pills. Id. at 1963. The defendant adm itted the pills were his and that
he had given the ecstasy to his friends. Id.

       16
            Id. at 1966.

       17
            Id.
                                                                 Miller Concurring – 7

       The Supreme Court rejected the Government’s argument because

deportation was the determinative issue in the defendant’s decision to

accept the plea deal.18        According to the Court, the defendant faced a

choice between the certainty of being deported by accepting a plea and

the “almost” certainty of being deported by risking a trial. That “almost”

made all the difference.19

       Appellant was faced with an analogous choice in this case. Though

the issue was not deportation, Appellant faced a choice between the

certainty that the judge could not award him probation and the almost

certainty that a jury would not award him probation.                    As in Lee, that

“almost” is enough to establish prejudice.                    As Professors Dix and

Schmolesky have observed of our original opinion in this case, “In light

of Lee, the plurality in Miller is apparently wrong.” 20 I agree. And it is

better to fix the error now on rehearing. That is why I join the Court.

Filed: May 23, 2018

Publish



       18
            Id. at 1967.

       19
            Id. at 1968-69.

       20
         42 George E. Dix & John M. Schm olesky, Tex. Prac., Crim inal Practice and
Procedure § 29:90 (3d ed. 2011).
