Ex Parte Carillo

MILLER, Judge,

concurring.

I agree that the facts of this case do not meet the test of ineffective assistance of counsel. As pointed out in Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), except in cases involving presumed prejudice the defendant has the burden of proof to show not only that counsel committed an unprofessional error, but that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” The reasonable probability test falls between the “some conceivable effect on the outcome” and the “more likely than not altered the outcome” tests. A reasonable probability is one that is “sufficient to undermine confidence in the outcome.” Strickland, supra. This test should, according to Strickland, be used in collateral proceedings and habeas proceedings as well as in direct appeals.

Given this standard, the question in this case is whether there is a reasonable probability that but for counsel’s incorrect advice concerning appellant’s eligibility for parole, the appellant would not have accepted the plea bargain and pled guilty under the facts of this case. Since we must consider the totality of circumstances, we should look at least at the efforts of appellant’s counsel narrated in the majority opinion and the aggravating facts of one of the offenses (run concurrently with the others). Balancing these facts against the bad advice is enough to overcome appellant’s challenge, in part because the advice involved eligibility for parole and not the promise of parole itself.

*325Parole is very much a speculative proposition. Its happening is contingent on many factors unknown and nonexistent at the time of a guilty plea. Factors such as the conduct of appellant in prison, the composition and attitude of the parole board, the population of the prison system, the identity and attitude of the governor, the regulations governing “good time,” etc., all are yet to be when the defendant decides to plead guilty. The erroneous advise from counsel about the time frame of parole eligibility is then about an event, parole, whose time of occurrence, if any, cannot even be accurately guessed at. It should not be accorded sufficient importance as to outweigh the other factors considered in this case.

All in all, appellant has failed in his burden to prove there is a reasonable probability that but for the erroneous advise, he would not have pled guilty. For these additional reasons, I join the opinion of the majority.