Michael Anthony Grado v. State

Citation: Not availableDocket: 07-11-00468-CR

Court: Court of Appeals of Texas; June 28, 2013; Texas; State Appellate Court

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Michael Anthony Grado was convicted on September 10, 2002, for possession of amphetamines weighing 400 grams or more, receiving a ten-year confinement sentence, which was suspended in favor of ten years of community supervision and a $10,000 fine. On March 30, 2011, the State moved to revoke his community supervision, citing multiple violations. During the hearing on November 3, 2011, Grado pleaded true to the allegations, leading the trial court to revoke his community supervision and impose the original ten-year prison sentence and fine.

Grado appealed, raising two main issues. First, he contended the trial court improperly limited the punishment options to ten years due to misleading statements from the prosecutor and defense counsel. Second, he claimed that he was constructively denied effective legal counsel during sentencing because his attorney did not challenge this incorrect information, which undermined the adversarial process. The State acknowledged that the trial court erred in believing the minimum punishment upon revocation was ten years instead of the correct minimum of five years but argued that Grado did not preserve this error for review by failing to object. They also conceded that trial counsel's performance was deficient but contested that it did not affect the outcome of the proceedings.

Grado clarified that his second issue was not one of ineffective assistance requiring proof of outcome impact but rather a claim of constructive denial of counsel, which presumes prejudice. The court determined that the resolution of Grado's first issue rendered the second issue unnecessary to consider. The background indicates that Grado was indicted for an offense defined under section 481.116(a) of the Texas Health and Safety Code, with the judgment incorrectly reflecting a violation of section 481.115, which pertains to a different classification of controlled substances. Grado was subject to a minimum sentence of five years for the offense charged. The appellate court modified and affirmed part of the trial court's decision but reversed and remanded for a new punishment hearing.

Appellant's community supervision was monitored in El Paso, Texas, where he paid nearly all of a $10,000 fine, court costs, and restitution over approximately eight and a half years before the State sought to revoke his supervision. During the revocation hearing, the State clarified that the minimum punishment for the underlying offense was mistakenly believed to be ten years, when it could potentially be less. The trial court and Appellant were made aware that while the minimum was ten years for the offense, the court had the discretion to reduce the term of confinement under Article 42.12, section 23(a) of the Texas Code of Criminal Procedure. Despite this, Appellant's counsel did not request a continuance on community supervision or a reduction of the sentence, merely asking the court to consider the presented evidence. The State acknowledged a mistake in the trial court's belief about the minimum sentence but argued that the error was not preserved. The analysis concluded that the trial court erred by not considering the possibility of reducing Appellant’s sentence, given his significant completion of probation and payment of fines, indicating that a lesser sentence could have been warranted.

The State argues that the error regarding the prosecutor's misstatement of the law was not preserved for appeal due to Appellant's counsel not objecting or correcting the trial judge's acceptance of that misstatement. Appellant contends that the trial judge's inadvertent refusal to consider the full range of punishment constitutes a fundamental error that cannot be waived by a failure to object, citing various court rulings. The Texas Court of Criminal Appeals recognizes three categories of rights: 1) absolute requirements and prohibitions, 2) rights that must be implemented unless waived, and 3) rights that require a request for implementation. Only the last category is subject to procedural waiver. Non-waivable rights, such as the right to counsel and a jury trial, are not extinguished by inaction but must be expressly waived. Crucially, a defendant has an absolute right to be sentenced within the correct statutory range established by the Legislature. In this instance, the trial court erred by applying the wrong statute (section 481.115 instead of section 481.116) and erroneously presuming a ten-year sentence was inevitable if community supervision was revoked. Appellant relied on the trial judge and counsel, both of whom failed to recognize the correct range of punishment. This failure is deemed a denial of a fundamental right. The court concludes that a defendant may raise this issue for the first time on appeal if it demonstrates significant bias regarding punishment. However, a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure is necessary to determine if the error affected Appellant's substantial rights, and reversal is warranted if there is grave doubt about the trial's outcome being unaffected by the error.

Reversible harm must be assumed in cases of grave doubt regarding harmlessness. The Appellant demonstrated substantial compliance with community supervision over eight and a half years and paid most of the imposed fine. Given the possibility that the trial court misunderstood the applicable penalty group for the controlled substance, it is uncertain whether the trial court would have applied a lesser sentence had it fully understood the range of punishment. Consequently, the error in assessing the punishment is deemed reversible. 

The appellate court has the authority to modify the lower court's judgment to ensure it accurately reflects the truth when appropriate information is available. In this case, both parties acknowledged that the Appellant was charged under the correct statute, section 481.116(e) of the Texas Health and Safety Code, and that the controlled substance was classified as a Penalty Group 2 substance. The judgment incorrectly cited the statute and offense, warranting modification.

The judgment is thus altered to reflect '481.116(e) Health and Safety Code' under 'Statute for Offense' and 'POSSESSION CONTROLLED SUBSTANCE PG 2 >400 GRAMS' under 'Offense for which Defendant Convicted.' The conviction portion of the judgment is affirmed as modified, while the punishment portion is reversed, and the case is remanded to the trial court for a new punishment hearing.