No. PD -0876- 15

IN THE COURT OF CRIMINAL APPEALS

RONALD PRESLEY v. THE STATE OF TEXAS

On Petition for Discretionary Review from Appeal No. 12- 14 -00231- CR in the Court of Appeals, Twelfth District, at Tyler

Trial Court Cause No. 31,089
3rd Judicial District Court Anderson County, Texas Mark Calhoun, Judge Presiding

MOTION FOR REHARING

State Counsel for Offenders

Kenneth Nash, Appellate Chief
State Bar of Texas No. 14811030

Nicholas Mensch
State Bar of Texas No. 24070 262

P. O. Box 4005 Huntsville, TX 77342 (936) 437-5252 (936) 437-5279 (fax) nicholas.mensch@tdcj.texas.gov

Attorney for Petitioner PD-0876-15
COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS
Transmitted 11/13/2015 11:41:10 AM Accepted 11/13/2015 3:26:12 PM

ABEL ACOSTA
CLERKii IDENTITY OF PARTIES AND COUNSEL

PETITIONER: Robert Presley, TDCJ# 00508131

TRIAL COUNSE L FOR PETITIONER:
Barbara Law 1

State Bar of Texas No. 12000460
State Counsel for Offenders P.O. Box 4005; Huntsville, Texas 77342 (936) 437

- 5275/(936) (936) 437

- 5293 fax

APPELLATE COUNSEL FOR PETITIONER: Kenneth Nash, Appellate Chief
State Bar of Texas No . 14811030
Nicholas Mensch
State Bar of Texas No. 24070262

State Counsel for Offenders P.O. Box 4005; Huntsville, Texas 77342 (936) 437

- 5252/( 936) 437

- 5279 (fax)

RESPONDENT:
The State Of Texas

TRIAL COUNSEL FOR RESPONDENT Cindy Garner
State Bar of Texas No. 07673100 Special Prosecution Unit 500 South Seventh Street; Crockett, Texas 75835 (936) 545

- 5297

APPELLATE COUNSEL FOR RESPONDENT: Melinda Mayo Fletcher
State Bar of Texas No. 18403630 Special Prosecution Unit P.O. Box 1744; Amarillo, Texas 79105 (80 6) 367

- 9407/(866) 923

- 9253 fax

1 Ms. Law has retired from State Counsel for Offendersiii TABLE OF CONTENTS

Identity of Parties and Counsel

................................ ................................ ................. ii

Index of Authorities

................................ ................................ ................................ . iv

Statement of Procedural History

................................ ................................ ............... 1

Grounds for Rehearing

................................ ................................ .............................. 1

. Argument

................................ ................................ ................................ ................... 1

Prayer for Relief

................................ ................................ ................................ ........ 5

Certificate of Compliance , Tex. R. App. P. 79.2

................................ ...................... 6

Certificate of Co mpliance, Tex. R. App. P. 9.4

................................ ........................ 6

Certificate of Service

................................ ................................ ................................ 7iv INDEX OF AUTHORITIES

Cases

B lanton v. State,
369 S.W.3d 894 (Tex. Crim. A pp. 2012)

................................ ........................ 2

Collins v. State,
240 S.W.3d 925 (Tex. Crim. A pp. 2007)

................................ ........................ 2

Ex parte Moreno

, 245 S.W.3d 419 (Tex. Crim. A pp. 2008)

................................ ........................ 4

Ex parte Perez

, 398 S.W.3d 206 (Tex. Crim. A pp. 2013)

................................ ........................ 2

Guthrie

- Nail v. State

, 2015 Tex. Crim. App. LEXIS 917 (Tex. Crim. App. 2015 )

............ ..... ....2

Gutierrez v. State,
108 S.W.3d 304 (Tex. Crim. A pp . 2003)

................................ ........................ 4

Moore v. State,
295 S.W.3d 329 (Tex. Crim. A pp. 2009)

................................ .................... 3, 4

P resley v. State

, No. 12

- 14

- 00231

- CR, 2015 Tex. App. LEXIS 6810 (Tex. App.

– Tyler June 17, 2015, pet. filed) (not designated for publication)

................................ ...... 1

Santobello v. New York

, 404 U.S. 257 (1971)

................................ ................................ ..................... 3, 4

Rules

Texas Rule of Appellate Procedure 25.2(a)(1)

................................ .......................... 3

Texas Rule of Appellate Procedure 79

................................ ................................ ...... 1v

Statutes

Texas Code of Criminal Procedure 42.08(b)

................................ ............................. 1

Texas Code of Criminal Procedure 44.01(b)

................................ ............................. 31

Pu rsuant to Tex. R. App. P. 79, Petitioner, Robert Presley submits this

Motion for Rehearing in response to this Court’s refusal of his Petition for

Discretionary Review on November 5, 2015.

STATEMENT OF PROCEDURAL HISTORY

The Twelfth Court of Appeals affi rmed the trial court’s judgment nunc pro

tunc as modified. Presley v. State , No. 12

- 14

- 00231

- CR, 2015 Tex. App. LEXIS

6810 (Tex. App.

— Tyler June 17, 2015, pet. refused) (not designated for

publication). The Court held “that when Art. 42.08(b) 2 applies, th e trial court need

not specify the prior conviction on which a defendant’s sentence is to be cumulated

under Art. 42.08(b) because that information will be known by the TDCJ [Texas

Department of Criminal Justice].” The Court of Appeals then modified the

st acking order of the judgment to state “any other sentence that Ronald Presley is

currently serving.” No motion for rehearing was filed. On November 4, 2015, this

Court refused Petitioner’s Petition for Discretionary Review.

GROUNDS FOR REHEARING

This Cour t’s refusal to grant the Petition , and reverse the decision of the

Twelfth Court of Appeals, effectively grants prosecutors the ability to go back and

change the material terms of a plea bargain agreement under the “guise” of a nunc

pro tunc

. If the State is not happy with the plea bargain, they can simply file a nunc

2 Tex. Code Crim. Proc. 42.08(b).2

and receive a new, more lucrative bargain. In this case the more lucrative bargain

was the changing of the cum ulation order of Petitioner’s conviction from one

sentence (that was apparently ne ar completion or had been discharged at the time

of the nunc hearing ) to a different sentence with a much a longer term

.

ARGUMENT

“A court may not properly grant a judgment nunc pro tunc to change the

judgment ‘to reflect what it believes should have been done.’” Guthrie

- Nail v.

State , No. PD

- 0125

- 14, 2015 Tex. Crim. App. LEXIS 917 (Tex. Crim. App. 2015)

(Richardson, J., concurring ), quoting Collins v. State , 240 S.W.3d 925, 928 (Tex.

Crim. App. 2007). “Rather

, a nunc pro tunc correction ‘must reflect the judgment

that was actually rendered.’” Id ., quoting Blanton v. State , 369 S.W.3d 894, 899

(Tex. Crim. App. 2012).

Here, the State of Texas offered the Petitioner 4 years, cumulated on his

sentence in Cause No. F812704PM out of Dallas County in exchange for h im

pleading guilty (and waiving several of his constitutional rights). (C.R. at 10). 3

Petitioner accepted the State ’s offer and pled guilty. The State then purportedly

discovered that they had made a mistake with the sentence they agreed to

cumulate , part of their offer to induce Petitioner to plead guilty, and they needed a

3 The district court’s oral cumulation order was consid erably less precise. The district

court ordered that his 4

- year sentence “will run consecutive to any other sentence that you’re currently serving.” (R.R.

- Plea Hearing at 15)3

redo. They couldn’t do a direct appeal as they were outside of the timelines. See

Tex. Code Crim. Proc. 44.01(b), Tex. R. App. P. 25.2(a)(1). So they chose a

motion for nunc pro tunc t o circumvent the agreement they had made.

“Plea bargains are integral part of the criminal justice system.” Moore v.

State , 295 S.W.3d 329, 331 (Tex. Crim. App. 2009). As the United States

Supreme Court has stated:

Disposition of charges after plea discu ssions is not only an essential part of the process, but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it
avoid s much of the corrosive impact of enforced idleness during pretrial confinem ent for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances
whateve r may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.

...

This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the de fendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the

inducement o r consideration, such promise must be fulfilled

.

Santobello v. New York , 404 U.S. 257, 261

- 262 (1971) (emphasis added).

These “considerations presuppose fairness in securing agreement between an

accused and a prosecutor.” Id . at 261. “Accordingly, a pro ceeding in which an4

accused waives fundamental rights: to a jury trial, to confront one’s accusers, to

present witnesses in one’s defense, to remain silent, and to be convicted by proof

beyond all reasonable doubt ‘ is a serious and sobering occasion .’” Gut ierrez v.

State , 108 S.W.3d 304, 306 (Tex. Crim. App. 2003), quoting Santobello , 404 U.S.

at 264 (emphasis added)

. A plea

- bargain agreement, like the one between

Petitioner and the State, is a contract. Moore , 295 S.W.3d at 331. Here, the State

breached t hat contract when it filed their nunc and attempted to have the

cumulation order changed from one case of aggravated assault in Cause No.

F812704PM ( whose sentence Petitioner was apparently near completion or had

discharged at the time of the nunc hearing ) for another case of aggravated assault

in Cause No. F88

- 86965

- JL, under the guise of a simple “mistake” they made.

Petitioner contends this was not a simple mistake, but an attempt to go back and

undo a legally binding agreement because the State did not give Petitioner the

sentence she may have intended to, but chose not to at the time of the plea bargain.

As this Court has noted, the State and society have a legitimate interest in the

finality of litigation (or a judgment). Ex parte Perez , 398 S.W.3d 206 , 218 (Tex.

Crim. App. 2013) and Ex parte Moreno , 245 S.W.3d 419, 429 (Tex. Crim. App.

2008) (“State possess legitimate interest in ‘the repose and finality of its

convictions.’”). Doesn’t that same legitimate interest also apply to a criminal

defendant af

ter he accepts a plea bargain agreement and it is the State, not he, who5

challenges the validity of that judgment? This Court’s refusal of Petitioner’s

Petition effectively tells criminal defendants that they have no such legitimate

interest. It also tells them they have no legal recourse when the State goes back on

a plea bargain that they signed in good faith with the expectation that the State

would honor that agreement.

PRAYER

Wherefore, Petitioner prays that this Court grant this Motion for Rehearing

,

order briefing on this cause, and set his case for submission. Moreover, upon

submission and review of the appellate record and the briefs and arguments of

counsel, Petitioner prays that this Court reverse the Twelfth Court of Appeal’s

judgment (and the t rial court’s judgment) and reinstate, or remand the case to the

trial court so that it may reinstate, the original judgment entered on February 24,

2014

. Petitioner also prays for such other relief that this Court may deem

appropriate

.

Respectfully s ubmitted,

S tate Counsel for Offenders Attorney for Petitioner

/s/ Nicholas Mensch
Nicholas Mensch
State Bar of Texas No. 24070262

P. O. Box 4005 Huntsville, TX 77342 (936) 437

- 5252 / (936) 437

- 5279 (fax) nicholas.mensch@tdcj.texas.gov6

CERTIFICATE OF COMPLIANCE, TEX. R. APP. P. 79.2

In accordance with Tex. R. App. 79.2(c), I certify that this Motion for

Rehearing that refuses Petitioner’s Petition fo r Discretionary Review is grounded

only on substantial intervening circumstances or on other significant circumstances

which are specified in the Motion. I further certify that this Motion is so grounded

and that the Motion is made in good faith and not fo r delay.

/s/ Nicholas Mensch
Nicholas Mensch

CERTIFICATE OF COMPLIANCE , TEX R. APP. P. 9.4

In accordance with Rule 9.4, Rules of Appellate Procedure, I certify that this

computer

- generated document complies with the typeface requirements of Rule

9.4 (e) and is comprised of 1, 171 words (excluding the items exempted in Rule

9.4(i)(1)).

/s/ Nicholas Mensch
Nicholas Mensch7 CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing Motion for Rehearing

was served upo n opposing counsel noted below, by one or more of the following:

certified mail (return receipt requested), facsimile transfer, or electronic mail (e

mail), on this 13 th day of November , 2015.

Melinda Fletcher Special Prosecution Unit

P. O. Box 1744 Amarillo, TX 79105 Telephone no. 806

- 367

- 9407
Facsimile no. 866

- 923

- 9253

E

- mail address: mfletcher@sputexas.org

Lisa McMinn State Prosecuting Attorney

P.O. Box 13046 Austin, TX 78711

E

- mail address: information@spa.texas.gov

/s/ Nicholas Mensch
Nicholas Mensch