Monday, November 8, 2010

Beware of the Last-Minute Enhancement!

If your client has a prior conviction, it is more likely than not that the State will attempt to “enhance” the current case if it can.  Typically the State will plead the enhancement provision in the indictment, so that your client is on notice of the possibility that his sentence (if he is ultimately convicted) may be enhanced to a higher level crime.  But what if the jury convicts your client of the lesser-included offense, such that the particular enhancement doesn’t logically apply?  Can the State still seek to enhance the LIO conviction?

The Texas Court of Criminal Appeals recent decision in Pelache v. State indicates that, YES, the State can enhance the LIO conviction with other qualifying convictions (even if it didn’t notify your client in the indictment!).  I’m not going to get into the specifics of enhancements in this post.  You can read the case if you want a high level of detail.  I’m here with the highlights.  

In Pelache, the defendant was charged with the 2nd degree felony offense of robbery.  In the indictment, the State included an enhancement count alleging that he had been previously convicted of an aggravated robbery.  Thus, if appellant was convicted on the current robbery charge, his sentence could be increased to the range of a 1st degree felony.  Knowing this, the defendant refused a plea deal and proceeded to trial where he was convicted of the LIO of theft from a person (a state-jail felony).  Because he was convicted of the LIO, the enhancement count that the State included in the indictment did not apply.

However, after the trial concluded and less than a week before the sentencing hearing, the State filed a notice with the Court, indicating that it was seeking to enhance the state-jail felony conviction with two other felony convictions.  The defendant objected to the last-minute enhancement notice, arguing that it violated his right to due process.  The State pointed out that the notice of the enhancement need only be given “prior to sentencing” and the trial court allowed the sentenced to be enhanced to a 2nd degree felony.  The trial judge then sentenced the defendant to 20 years, the upper end of the enhanced range (2 to 20).

On appeal, the 13th District Court of Appeals (Corpus Christie) held that the defendant’s federal due process rights were violated by the late notice of the State’s intent to enhance the conviction.  That would be a short-lived victory for the defendant.  Last week the CCA, on State’s petition, reversed the decision of the 13th Court, holding:

[W]hen a defendant has no defense to the enhancement allegation and has not suggested the need for a continuance in order to prepare one, notice given at the beginning of the punishment phase satisfies the federal constitution…We also note that the applicable statutes did inform appellant, before he rejected the State’s plea-bargain offer and before jeopardy attached to the robbery offense, that he was subject to sentence enhancement with any other prior convictions under section 12.35(c)(2)(A) and under section 12.42(a)(3) in the event that he was convicted of the lesser-included, state-jail felony offense of theft from a person.
Judge Meyers dissented without opinion.
Takeaway:  The State can seek enhancements at any time prior to sentencing.  Enhancements may apply to the charges offense or the LIOs.  Advise your clients accordingly.