Shankle v. State

In Shankle v. State, 119 S.W.3d 808 (Tex. Crim. App. 2003), the Court of Criminal Appeals described two basic kinds of plea-bargaining in the United States: "charge-bargaining" and "sentence-bargaining." Id. at 813. In "charge-bargaining," a defendant agrees to plead guilty to the offense formally alleged or to some lesser or related offense and the State agrees to dismiss, or refrain from bringing, other charges. Id. "Sen-tence-bargaining" may occur when the parties place before the trial court binding or nonbinding recommen-dations on sentences, including a recommended "cap" on sentencing and/or a recommendation for deferred adjudication community supervision. Id. The court observed that both charge-bargaining and sentence-bargaining either directly involve punishment, or at least affect punishment, and noted, for example, that an agreement to dismiss a pending charge or not to bring an available charge effectively puts a cap on punishment at the maximum sentence for the charge not dismissed. Id. The court set out a hypothetical The Court of criminal appeals described two forms of plea bargaining: (1) charge-bargaining, in which the State agrees to dismiss or refrain from bringing additional charges in ex-change for a guilty or no-contest plea, and (2) sentence-bargaining, in which the State agrees to a sentenc-ing "cap." Both forms of plea-bargaining affect punishment and constitute negotiated agreements. Id. at 813-14. Rule 25.2(a)(2) provides that in a plea-bargain case--"that is, a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant"--a defendant may appeal only those matters that were raised by written motion filed and ruled on before trial or after getting the trial court's permission to appeal. Tex. R. App. P. 25.2(a)(2). The court of criminal appeals held that if the State agrees to dismiss a charge in exchange for a guilty or no-contest plea and the trial court sentences the defendant within the statutory range for the remaining charge, this agreement is a plea bargain in which "the punishment did not exceed the punishment recom-mended by the prosecutor and agreed to by the defendant." Shankle, 119 S.W.3d at 812-14 n.10. Under these circumstances, the defendant can only appeal matters raised by written motion and ruled on before trial or matters on which the trial court gave permission to appeal, as provided by rule 25.2(a)(2). See id. at 814. As the Court explained, "Charge-bargaining" involves questions of whether a defendant will plead guilty to the offense formally alleged or to some lesser or related offense, and of whether the State will dismiss, or refrain from bringing, other charges. Id. "Sentence-bargaining" may occur when the parties place before the trial court binding or non-binding rec-ommendations on sentences, including a recommended "cap" on sentencing and/or a recommendation for deferred adjudication community supervision. Id. The Court observed that both charge-bargaining and sentence-bargaining either directly involve punishment, or at least affect punishment, and noted, for example, that an agreement to dismiss a pending charge, or not to bring an available charge, effectively puts a cap on punishment at the maximum sentence for the charge not dismissed. Id. The Court's hypothetical example of charge-bargaining is striking in its similarity to the facts of the instant appeal, and we reproduce it below in pertinent part: "Charge-bargains can affect punishment in other ways. For example, two offenses may be within the same range of punishment, but if one of them is described in Code of Criminal Procedure article 42.12, section 3g , and the other is not, the effects of sentences that are identical on their faces can be quite different. Sentences that are described in that section cannot be suspended by the trial court without the recommendation of a jury, and offenders convicted of them become eligible for parole only when their actual calendar time served in confinement equals the lesser of one-half of the sentence or 30 years, while other offenders are eligible when their actual calendar time served plus good conduct time equals the lesser of one-fourth of the sentence or 15 years." (Id. at 813-14.)