Accurate to within 5% …

Ex parte Hardwick (Unpublished memo): After a 19-year-old Hardwick pled guilty to a DWI, his grandmother fired his attorney and got him a new one.  The new attorney tried to set aside the guilty plea on grounds that the first attorney scared Hardwick into the deal.  The Tyler court lets the plea stand.

The first attorney told Hardwick that the deal on the table was half of what he’d get if he lost at trial, which he almost certainly would.  The deal was for 180 days, suspended to one year of community supervision, and a $1,000 fine.  The term of community supervision was half of the maximum, as was the fine.  And Hardwick did zero jail time, in spite of a statutory mandate that he do at least 72 hours.

But would Hardwick have gotten the maximum at trial?  There was no testimony about the “typical” post-conviction sentence.  So, in the words of the Tyler court, the accuracy of the first attorney’s “half of what you’d get at trial” statement was “a question for reasonable disagreement.”  On that score, the Tyler court defers to the trial court.  The trial court denied habeas in the first place.  The trial court would know the likely post-conviction punishment range, and could have set the deal aside if the first attorney’s assessment was out-of-line.  The trial court let the deal stand.  So does the Tyler court.

Besides, matters of “reasonable disagreement” are a far cry from the cases where the attorney’s advice has rendered a plea deal involuntary.  For example, telling a client to agree to a life sentence to avoid the death penalty — at a time when the death penalty was not available.  Ex parte Burns, 601 S.W.2d 370 (Tex. Crim. App. 1980),

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