NCJ Number
30635
Journal
Southwestern Law Journal Volume: 29 Issue: 4 Dated: (FALL 1975) Pages: 714724
Date Published
1975
Length
11 pages
Annotation
DESCRIPTIVE DISCUSSION OF THE ATTEMPTS MADE IN SPRING 1975 TO INSULATE THE PLEA OF GUILTY FROM POST-CONVICTION ATTACK, BOTH BY JUDICIAL OPINION AND LEGISLATIVE AMENDMENT.
Abstract
THE TEXAS COURT OF APPEALS DECLARED A NEW RULE FOR POSTCONVICTION REVIEW OF THE PLEA, AND THE LEGISLATURE ADOPTED NEW RULES FOR BOTH ENTRY AND POST-CONVICTION REVIEW OF THE PLEA. PART ONE OF THIS ARTICLE DISCUSSES THE RULES WHICH WERE APPLIED TO ENTRY AND REVIEW OF THE PLEA PRIOR TO SPRING 1975. A PLEA OF GUILTY COULD ONLY BE ENTERED IF THE DEFENDANT WAS ADMONISHED BY THE TRIAL JUDGE AS TO ITS CONSEQUENCES, AND PLAINLY APPEARED SANE AND UNINFLUENCED BY FEAR, PERSUASION, OR HOPE OF PARDON. POST-CONVICTION REVIEW COULD BE GRANTED ONLY IF THESE REQUIREMENTS HAD NOT BEEN SATISFIED AND/OR RECORDED - THE RULE OF FUNDAMENTAL ERROR. JUDICIAL OPINIONS ABOUT THESE REQUIREMENTS OF COMPETENCY, INFLUENCES, AND CONSEQUENCES ARE SUMMARIZED BY THE AUTHOR. IN 1975 THE COURT OF CRIMINAL APPEALS ABANDONED THE RULE OF FUNDAMENTAL ERROR WITH REGARD TO THE REQUIREMENTS ABOUT INFLUENCES AND CONSEQUENCES IN FAVOR OF THE RULE OF 'UNASSERTED PREJUDICIAL ERROR' - EVEN THOUGH THE TRIAL JUDGE DOES NOT FULLY SATISFY THESE REQUIREMENTS, A JUDGEMENT BASED UPON THE PLEA OF GUILTY WOULD NOT BE REVERSED WHERE THE DEFENDANT HAD MADE NO OBJECTION TO THE TRIAL JUDGE, UNLESS HE OR SHE COULD SHOW PREJUDICE. LEGISLATIVE REVISIONS OF THE RULE FOR POST-CONVICTION REVIEW REQUIRED THE JUDGE TO ADMONISH THE DEFENDANT AS TO THE RANGE OF PUNISHMENT AND THE NON-BINDING EFFECT OF THE PROSECUTOR'S RECOMMENDATION. IT ALSO REQUIRED THAT THE PLEA APPEAR 'FREE AND VOLUNTARY'. STILL ANOTHER SECTION OF THE STATUTE - THE RULE OF SUBSTANTIAL COMPLIANCE/PREJUDICIAL ERROR - ALLOWS THE PUNISHMENT REQUIREMENT TO BE ONLY IN 'SUBSTANTIAL COMPLIANCE' WITH THE SENTENCING STATUTE, UNLESS THE DEFENDANT SHOWS THAT HE WAS NOT AWARE OF THE CONSEQUENCES OF HIS PLEA AND THAT HE WAS MISLED OR HARMED BY THE ADMONISHMENT OF THE COURT. THE AUTHOR MAINTAINS THAT ALTHOUGH, TO SOME EXTENT, THE PLEA OF GUILTY HAS BEEN SUCCESSFULLY INSULATED FROM POST-CONVICTION ATTACK (BY CLARIFYING WHAT THE TRIAL JUDGE MUST DO AT THE TIME A GUILTY PLEA IS ENTERED AND GIVING HIM MORE FLEXIBILITY WITH RESPECT TO TASKS), THE COURTS AND LEGISLATURE HAVE ALSO FAILED TO A LARGE EXTENT. HE ARGUES THAT THERE IS NO CLEAR INDICATION OF WHICH RULES OF POST-CONVICTION REVIEW APPLY TO MOST, IF NOT ALL, THE REQUIREMENTS OF THE NEW PLEA OF GUILTY STATUTE. IN ADDITION, HE CLAIMS THAT THE RULES WHICH HAVE BEEN DEVELOPED CANNOT BE SAID TO CONSISTENTLY STAY WITHIN THE DUE PROCESS LIMITATIONS. FOR EXAMPLE, THE PRECLUSION, BY THE NEW PLEA OF GUILTY STATUTE, OF POST-CONVICTION REVIEW WHERE THE TRIAL JUDGE ONLY SUBSTANTIALLY COMPLIES WITH THE SENTENCING STATUTE, UNLESS THE DEFENDANT SHOWS PREJUDICE, WOULD VIOLATE DUE PROCESS IF THE JUDGE'S SUBSTANTIAL COMPLIANCE BY ITSELF IS INSUFFICIENT TO AFFIRMATIVELY SHOW AN INTELLIGENT PLEA. SIMILARLY, UNDER THE ASSUMPTION THAT THE RULE OF UNASSERTED PREJUDICIAL ERROR IS APPLICABLE TO THE REQUIREMENT ABOUT PUNISHMENT, THE PRECLUSION OF POSTCONVICTION REVIEW WHERE THE TRIAL JUDGE FAILS TO 'FULLY' COMPLY WITH THE STATUTE AND THE DEFENDANT FAILS TO OBJECT, UNLESS THE DEFENDANT SHOWS PREJUDICE, WOULD ALSO VIOLATE DUE PROCESS IF THE JUDGE'S FAILURE RESULTS IN A RECORD INSUFFICIENT TO AFFIRMATIVELY SHOW THE ENTRY OF AN INTELLIGENT PLEA. (AUTHOR ABSTRACT MODIFIED)