Roger Wysong v. State ( 2020 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-19-00271-CR
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ROGER WYSONG, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 19-31195
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MEMORANDUM OPINION
A grand jury indicted Roger Wysong for the second-degree felony offense of
failure to comply with sex offender registration requirements, and the indictment
alleged prior convictions in enhancement paragraphs:
Wysong . . . committed an offense hereinafter styled the primary
offense, on or about [November 1, 2018], did then and there, while
being a person required to register with the local law enforcement
authority in the municipality where the Defendant resided or intended
to reside for more than seven days, to-wit: Beaumont, Texas, because
of a reportable conviction and adjudication for a sexual offense, to wit:
Sexual Assault, intentionally, knowingly and recklessly fail to report
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Defendant’s change of address not later than the seventh day after the
date of Defendant’s change of address,
[and] that before the commission of the primary offense, the Defendant
was finally convicted of the felony of Indecency with a Child- Second
Degree on March 19, 1993, in Cause No. 14244, in the Sixth Judicial
District Court of Lamar County, Texas,
[and] that before the commission of the primary offense, the Defendant
was finally convicted of the felony of Sexual Assault- Second Degree
on January 5, 1999, in Cause No. 14245, in the Sixth Judicial District
Court of Lamar County, Texas,
[and] that before the commission of the primary offense, and after the
conviction in Cause No. 14244 became final, and after the conviction
in Cause No. 14245 became final, the Defendant committed the felony
of Failure to Comply with Sex Offender Registration Requirements-
Second Degree and was finally convicted of such felony on April 6,
2009, in Cause No. 08-04534, in the 252nd District Court of Jefferson
County, Texas[.]
The Agreed Punishment Recommendation in the clerk’s record, dated May
20, 2019 and signed by Wysong, states that “[i]t is mutually agreed and
recommended to the Court [that the] Prosecution should proceed only on
Count(s)[]1” and that “[t]he State will not make a specific punishment
recommendation[.]” The Written Plea Admonishments in the record, also dated May
20, 2019 and signed by Wysong, admonished Wysong that he was charged with the
felony offense of failure to register as a sex offender and, if convicted, would face
the range of punishment of “[a] term of not more than 20 years or less than 2 years
in the Institutional Division of the Texas Department of Criminal Justice[]” and “a
fine may be assessed not to exceed $10,000.” In the stipulation signed by Wysong,
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he affirmed that he “under[stood] the foregoing admonishments from the Court and
[was] aware of the consequences of [the] plea.” At the May 20, 2019 plea hearing,
Wysong pleaded guilty to paragraph one, the primary offense of failure to comply
with sex offender registration requirements, and on the record he agreed that he
understood that he faced a term of not more than twenty years or less than two years
on prison.
During the July 22, 2019 sentencing hearing, the trial court reviewed the
presentencing report and again discussed the applicable punishment range with
defense counsel and Wysong as a result of Wysong’s agreement to plead guilty to
the primary offense and the State’s agreement to not proceed on the enhancement
paragraphs:
THE COURT: Is it my understanding that this could - - that h[e]
could have been prosecuted as it’s indicted for habitual felon?
[Defense counsel]: It could have been enhanced, Your Honor.
THE COURT: Is that right? He’s looking at 25 to 99 or life
imprisonment under the indictment if those allegations were true as
they are alleged?
[Defense counsel]: Correct, Your Honor.
THE COURT: I think [defense counsel] has done a remarkable job
of limiting the loss because he only pleaded guilty to Paragraph 1,
correct?
[Defense counsel]: Correct, Your Honor.
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THE COURT: I think he did a great job on limiting your exposure
to begin with, sir, in light of this. . . .
....
THE COURT: What are you asking for?
[State’s counsel]: I would stay with what the original recommendation
for the State was, which is 20. Last time he received 20 years, he did 7.
THE COURT: Mr. Wysong, what would you like to say, sir?
[Wysong]: Sir, I’m serious. I never will do it again. I will pay
my fees, go to my sex offense classes. I will do everything right to stay
out. I got my best friend on my side now. He’s going to talk to me and
keep me out of the - - on the straight path.
THE COURT: Do you understand you’re not being punished for
anything in the future that you could do or not do? You’re being
punished for something in the past, and criminal history and
characteristics of your character all come into play in fashioning a
sentence. You understand that? Generally, people do not commit
subsequent similar offenses and then get less time. That’s kind of
backwards in jurisprudence.
[Wysong]: I understand.
THE COURT: So, you received 20 years, correct, for the last
failure to comply with sex offender registration requirements and here
they’ve already limited your exposure from habitual felon? You could
be looking at a minimum of 25, up to life in prison. So, this Court feels
as though [defense counsel] has really thrown a Hail Mary pass that he
was able to complete, as it were, to get you capped at no more than 20
years confinement.
You have pleaded guilty voluntarily to this charge, this second
degree felony. You were mentally competent to do so. You understand
the consequences of pleading guilty. There is sufficient evidence
supporting your guilty plea to find you guilty beyond a reasonable
doubt, and I now find you guilty beyond a reasonable doubt of this
offense. You are hereby sentenced to 20 years in prison and you do
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have - - this is unagreed. So, you do have a right of appeal of this case.
With your criminal history and other factors, you have - - you’re a high
risk to succeed.
The Judgment of Conviction by Court – Waiver of Jury Trial signed by the
trial court indicated that Wysong pleaded guilty to second-degree felony failure to
comply with sex offender registration and “N/A” was noted under the sections
“Terms of Plea Bargain[,]” as well as for the sections for the plea to the enhancement
paragraphs and the findings on the enhancement paragraphs. The trial court signed
a certification stating that “this criminal case [] [i]s not a plea-bargain case, and the
defendant has the right of appeal[.]” In a handwritten “motion” to the trial court,
Wysong acknowledged that he “agree[d] to give a negotiated settlement for a plea
of guilty to a state-jail felony punishment only if the State[’]s attorney abandon[ed]
sentencing enhancements[,]” and that Wysong “voluntarily negotiated for the State
to abandon all punishment enhancement paragraphs that have been alleged.” 1
The Court of Criminal Appeals has explained that there are two basic kinds
of plea bargaining: charge-bargaining and sentence-bargaining. See Shankle v. State,
1 In Wysong’s pro se handwritten “motion” he filed with the trial court after
he entered his plea and after he was sentenced by the trial court, he suggests that he
believed that, if he agreed to plead guilty, he would receive a punishment of no more
than two years in state jail. Based on the portions of the record discussed herein, we
conclude he was fully apprised and admonished regarding the applicable punishment
range before he entered his guilty plea and he agreed his plea was voluntarily and
knowingly made.
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119 S.W.3d 808, 813 (Tex. Crim. App. 2003) (en banc). As explained by the Court
of Criminal Appeals
Charge-bargaining involves questions of whether a defendant will
plead guilty to the offense that has been alleged or to a lesser or related
offense, and of whether the prosecutor will dismiss, or refrain from
bringing, other charges. Sentence-bargaining may be for binding or
non-binding recommendations to the court on sentences, including a
recommended “cap” on sentencing and a recommendation for deferred-
adjudication probation.
Id. (citations omitted). “[T]he State’s agreement to forgo prosecution for a pending
charge in exchange for a defendant’s plea to a lesser offense effectively places a cap
on the possible punishment.” See Thomas v. State, 516 S.W.3d 498, 502 (Tex. Crim.
App. 2017) (citing Kennedy v. State, 297 S.W.3d 338, 342 (Tex. Crim. App. 2009);
Shankle, 119 S.W.3d at 813-14). The law concerning the effect of a plea bargain
based on sentence bargaining also applies to plea bargains based on charge-
bargaining. Id.Rule 25.2 of the Texas Rules of Appellate Procedure provides that a defendant
in a plea-bargain case may appeal only “those matters that were raised by written
motion filed and ruled on before trial, [] after getting the trial court’s permission to
appeal, or [] where the specific appeal is expressly authorized by statute.” Tex. R.
App. P. 25.2(a)(2). Rule 25.2 defines a plea bargain case as “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[.]”
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Id. A sentence bargain agreement is an agreement to a punishment cap and
constitutes a plea agreement within the meaning of Rule 25.2. See id.; Shankle, 119
S.W.3d at 812-13; Lemoins v. State, 37 S.W.3d 556, 557-59 (Tex. App.—Beaumont
2001, no pet.).
After reviewing the appellate record, we conclude that the trial court’s
certification following the punishment phase is incorrect. Wysong’s agreement to
plead guilty only to the primary offense of failure to register as a sex offender in
exchange for the State’s agreement to forego pursuit of the enhancement paragraphs
effectively placed a cap on his possible punishment and constituted a plea bargain.
See Thomas, 516 S.W.3d at 502; Shankle, 119 S.W.3d at 813-14; Interiano v. State,
Nos. 05-19-01280-CR & 05-19-01281-CR, 2020 Tex. App. LEXIS 3780, at **3-4
(Tex. App.—Dallas May 5, 2020, no pet.) (mem. op., not designated for publication)
(where the State abandons enhancement paragraphs that would have increased the
terms of punishment, it is a “plea agreement” and the requirements of Rule 25.2
apply). Wysong’s plea bargain is governed by the law under Rule 25.2(a)(2), and he
would only be allowed to appeal the limited matters expressly outlined in Rule 25.2.
Wysong’s punishment did not exceed what he agreed to, the purported appeal does
not pertain to any written pretrial motions, and the record does not reflect that
Wysong obtained the trial court’s permission to appeal from a plea bargain.
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The trial court’s certification fails to comport with the record and applicable
rule, and therefore it is defective. See Dears v. State, 154 S.W.3d 610, 614 (Tex.
Crim. App. 2005) (concluding that a certification is defective if it is correct in form
but “when compared with the record before the court, proves to be inaccurate”).
Therefore, we conclude that the appeal must be dismissed. Chavez v. State, 183
S.W.3d 675, 680 (Tex. Crim. App. 2006) (en banc) (dismissal required where
appellant had no right of appeal because he was sentenced pursuant to a plea bargain
and did not satisfy an exception under Rule 25.2(a)(2)); Interiano, 2020 Tex. App.
LEXIS 3780, at **3-4 (reviewing court lacked jurisdiction where the State struck
enhancement language from the indictment and noting the trial court’s certification
that defendant had right of appeal was defective); Waters v. State, 124 S.W.3d 825,
826-27 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (reviewing court lacked
jurisdiction where defendant pleaded guilty with a sentencing cap of ten years, even
though trial judge certified defendant had right of appeal).
APPEAL DISMISSED.
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LEANNE JOHNSON
Justice
Submitted on May 21, 2020
Opinion Delivered October 21, 2020
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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