Collins v. State (2007)
In Collins v. State, 240 S.W.3d 925 (Tex. Crim. App. 2007), in exchange for a guilty plea to a lesser offense, Collins agreed, among other things, to accept thirty-four days of back time credit. This specific credit was included in the State's recommendation to the court, and the court reiterated the thirty-four days of back time credit when sentence was pronounced.
Additionally, the agreed plea recommendations and admonishments signed by Collins provided for thirty-four days of back time credit. Id. at 927.
Prior to the court's acceptance of the plea, Collins was informed of the conditions of the negotiated plea agreement, and acknowledged that he knew his rights and the conditions--read to him in open court--conformed to his understanding of the agreement. Id. at 926.
After expiration of the trial court's plenary power, Collins filed an application for writ of habeas corpus or motion for judgment nunc pro tunc. The trial court issued judgment nunc pro tunc, granting Collins 271 additional days of back time credit.
The court of appeals determined the trial court did not have jurisdiction to render judgment nunc pro tunc because there was a negotiated plea agreement between the parties. Finding no clerical error in the original judgment, the court vacated the modified judgment and reinstated the original judgment. Id. at 927.
The Texas Court of Criminal Appeals affirmed, finding no clerical error to be corrected:
"The written judgment perfectly matches the judgment pronounced in court. The judge exercised judicial reasoning when he chose to accept the recommendation of the State and allow the terms of the plea bargain to control, and he entered judgment in accordance with these terms. Therefore, a judgment nunc pro tunc is not the proper remedy for the failure to award additional back-time in this circumstance." Id. at 928.
If, however, "the amount of pre-sentence jail-time was not a negotiated term of a plea bargain, the statute would apply and the defendant would be entitled to all statutory back-time. By accepting the plea bargain with 34 days of credit, Collins waived his statutory right to the time served in another jurisdiction." Id. at 929.
In Collins v. State, the defendant entered a plea agreement regarding drug possession charges in which he explicitly agreed to five years' confinement with 34 days of pre-sentence back-time.
The trial court accepted the plea and entered judgment tracking those terms. After the trial court's plenary power had expired, Collins obtained a nunc pro tunc order from the trial court granting him an additional 271 days of back-time that he had accrued while in custody prior to sentencing.
The State appealed, and the court of appeals reversed. Collins then appealed to the court of criminal appeals, which affirmed the court of appeals. See Collins, 240 S.W.3d at 926-28.
The court of criminal appeals emphasized the general principles that a nunc pro tunc order is appropriate for fixing clerical errors in the record as to the judgment the trial court actually rendered, not errors that were the result of judicial reasoning, and that it cannot be used to "change a court's records to reflect what the trial court believes should have been done." Id. at 928.
It observed that, consequently, "before a judgment nunc pro tunc may be entered, there must be proof that the proposed judgment was actually rendered or pronounced at an earlier time." Id.
From the record in Collins, the court of criminal appeals concluded, "it is clear . . . that there was no clerical error that this judgment nunc pro tunc was correcting.
The judge exercised judicial reasoning when he chose to accept the recommendation of the State and allow the terms of the plea bargain to control, and he entered judgment in accordance with these terms." Id.
"Therefore," the court reasoned, "a judgment nunc pro tunc is not the proper remedy for the failure to award additional back-time in this circumstance." Id.
The court of criminal appeals distinguished the Ybarra line of cases regarding back-time on the basis that "in this case, there is a controlling plea bargain." Id. at 929.
It noted that in Ex parte Olivares, 202 S.W.3d 771 (Tex. Crim. App. 2006), it had recognized that a defendant could affirmatively waive his right to pre-sentence back-time credit by entering into a plea bargain "if the facts on record support that a waiver occurred." Collins, 240 S.W.3d at 929.
The Collins court reasoned:
"The question before this court now is not whether Appellee affirmatively waived his rights to the back-time credit, nor is there even an assertion that the plea bargain was not entered into knowingly and voluntarily. An appeal from a judgment nunc pro tunc would not be the correct procedure for deciding such an issue. However, the ability of a defendant to enter into a plea bargain and waive his right to back-time is important because it demonstrates that Appellee did not have a clear automatic legal right to the pre-sentence credit. As explained above, the act of accepting the recommendation of the State in a plea bargain required the judge to exercise judicial discretion, and when granting the judgment nunc pro tunc, the judge employed judicial reasoning when determining whether he was bound by the terms of the plea bargain. This was not simply a miscalculation in the number of days of back-time to be awarded, or a mistake in the transcription of the judgment into the court records. Each judge had to make specific determinations as to what Appellee was entitled, and therefore, no ministerial act was implicated." Id.
On the other hand, the court of criminal appeals emphasized some limitations on these concepts. It observed, "if appellant had negotiated to receive this award of additional back-time credit, then entry of the final calculation of back-time could have been accomplished by judgment nunc pro tunc." Id.
Further, the court stressed, "if the amount of pre-sentence jail-time was not a negotiated term of a plea bargain, the statute would apply and the defendant would be entitled to all statutory back-time." It was "by accepting the plea bargain with 34 days of credit, Appellee waived his statutory right to the time served." Id.