Montoya v. Johnson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_______________

m 99-50190
_______________

JESSE MONTOYA,

Petitioner-Appellee,

VERSUS

GARY L. JOHNSON,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,

Respondent-Appellant.

_________________________

Appeal from the United States District Court
for the Western District of Texas
_________________________
September 14, 2000

Before JOLLY, SMITH, and BARKSDALE, concurrently. The state court did sentence him
Circuit Judges. concurrently but, importantly, did so before
the federal court had issued its sentence.
JERRY E. SMITH, Circuit Judge: There being no previous federal sentence with
which Montoya’s state sentence could run, it
When he pleaded guilty, for separate was left to the federal court to decide whether
criminal acts, to federal charges of carjacking to allow his federal sentence to run
and state charges of aggravated robbery, Jesse concurrently with his previously-issued state
Montoya no doubt would have preferred that sentence. Montoya’s hopes were thus largely
his federal and state terms of imprisonment run dashed when the federal court subsequently
sentenced him to a consecutive term of provided that his twelve-year state sentence
incarceration, for that meant that his state would be imposed concurrently with his
sentence would run concurrently only if he pending federal sentence.1 That is, the state
were prematurely discharged from state prison agreed to allow him to use any time spent
and subsequently detained for federal serving a federal sentence as credit against his
incarceration. state sentence. Accordingly, Texas law
authorizes a state court to sentence a
In retrospect, Montoya would have been defendant to a term of imprisonment to be
better served had he been sentenced in federal served concurrently with anot her
court before he was sentenced by the state sentenceSSbut only if the other sentence has
court. He claims constitutional error, seeking already been imposed.2 When Montoya was
a federal writ of habeas corpus from his guilty sentenced on the state charge, however, there
plea on the state charges on the ground that was no pending federal sentence with which
that plea was premised on the state’s promise the state sentence could run concurrently
of concurrent sentencing, failure of which ren- pursuant to the state plea agreement.
dered his plea unknowingly and involuntarily
submitted. Alternatively, he complains of un- Clifford Hardwick, Montoya’s attorney in
constitutionally ineffective counsel. the state prosecution, advised him to plead
guilty in state court, even though federal
The state courts have rejected these sentencing had not yet taken place, rather than
arguments, concluding that Montoya was to seek a continuance and delay pleading and
made adequately aware of the terms of his sentencing in state court until after federal
state plea agreement in open court, thereby sentencing, because the policy of the state
rendering his plea voluntary and curing any judge was either to accept a plea or proceed
ineffectiveness of counsel. Therefore,
whatever we might have thought of Montoya’s
claims if we were ruling on them in the first 1
The written plea agreement read: “I have
instance, principles of federalism, comity, and agreed with the State to the terms and conditions of
finality of judgments, impressed upon us by the the plea agreement as follows: 1. I will enter a
Antiterrorism and Effective Death Penalty Act plea of guilty to the offense of Aggravated
of 1996 (“AEDPA”), counsel us to deny relief. Robbery, charged against me in this cause. . . .
Consequently, we REVERSE. 3. Defendant’s punishment will be set as follows:
Twelve (12) Years IDTDCJ, concurrent with
I. Federal sentence.”
Before imposition of the state sentence, 2
Montoya had pleaded guilty to carjacking See TEX. CODE CRIM. P. art. 42:08(a) (stating
that “in the discretion of the court, the judgment in
charges in federal court. He had not been
the second and subsequent convictions may either
sentenced on the federal charge when he be that the sentence imposed or suspended shall
pleaded guilty to, and faced sentencing for, begin when the judgment and the sentence imposed
aggravated robbery in Texas state court. or suspended in the preceding conviction has
ceased to operate, or that the sentence imposed or
A. suspended shall run concurrently with the other
Montoya’s plea agreement with the state case or cases, and sentence and execution shall be
accordingly”).

2
immediately to trial. An earlier opportunity Montoya had previously demonstrated at
for federal sentencing had been delayed least some ability to comprehend and exercise
because Montoya’s federal counsel was out of his rights as a criminal defendant. When asked
town. by the state trial court whether he had read the
form he had previously signed waiving his ap-
At the plea hearing in state court, the peal rights, he responded that he had not,
following exchange took place: thereby allowing the court to respond and to
ensure protection of his rights to due process
THE COURT: I just want to make sure by allowing him the opportunity to read that
that there wasn’t something else that form.
they offered you and changed it. Okay.
And . . . does that include all aspects of B.
the recommendation, Mr. Hardwick? Subsequently, the federal court sentenced
Montoya to a seventy-eight-month federal
MR. HARDWICK: Well, also, Your sentence, to be served consecutively to his
Honor, the State had agreed that that state sentence.3 He thus was placed under a
sentence . . . run concurrent with his federal detainer, such that he would not begin
federal offense, which is to be sen- serving his federal sentence until release from
tencedSShe is to be sentenced on state custody, so there was no federal term of
August 31st for the federal offense and incarceration with which to run his state
he already pled guilty to that. sentence concurrently, because he would not
begin serving his federal time until his release
THE COURT: All right. I am going to from state custody. His right to a concurrent
write that in on item three here. state sentence would not be triggered,
Concurrent with the federal sentence. therefore, until after his release from state
Now, you understand, Mr. Montoya, I
can’t bind the federal judge to do
anything. But what I am saying is that 3
The decision to run federal sentences
our timeSSyou will be given credit on concurrently or consecutively with pending
this sentence with the time you serve in sentences is governed by 18 U.S.C. § 3584(a) (“If
federal court. Now, what they do, I am multiple terms of imprisonment are imposed on a
not sure. I don’t know about how defendant at the same time, or if a term of
theySSwhat their rules are. imprisonment is imposed on a defendant who is
already subject to an undischarged term of
THE DEFENDANT: I understand. imprisonment, the terms may run concurrently or
consecutively, except that the terms may not run
consecutively for an attempt and for another
THE COURT: But our rule will be that
offense that was the sole objective of the attempt.
you will get credit on this one. . . . I will Multiple terms of imprisonment imposed at the
announce for the record that I will not same time run concurrently unless the court orders
exceed the agreed recommendation as to or the statute mandates that the terms are to run
punishment. . . . [T]welve years to be consecutively. Multiple terms of imprisonment
served concurrent with the federal imposed at different times run consecutively unless
sentence. the court orders that the terms are to run
concurrently.”).

3
custodySSas in the case of parole or habeas Montoya of the terms and limitations of his
relief from state imprisonment (which the plea agreementSSspecifically, that court’s lack
federal court would later grant). of power to bi nd the federal court to
concurrent sentencing. The state habeas court
C. also concluded there was no harm from any
Montoya first filed a habeas petition in state ineffective assistance of counsel and that the
court, challenging his state sentence. He ar- promises made to Montoya were not illusory:
gued that TEX. CODE CRIM. P. art. 26:13 re- His federal sentence was to run consecutively
quired the trial court to admonish him that the with his state sentence, while his state sentence
terms of the plea agreement regarding con- could run concurrently with a pending federal
current sentencing was not binding on the fed- sentence.
eral court4 and that, because of the lack of
warning by the trial court or his counsel, his Therefore, the state courts reasoned, Mon-
guilty plea was not made knowingly and toya’s entitlement to state imprisonment credit
voluntarily.5 He additionally demanded with- for any federal time served would be realized
drawal of his plea on the ground that specific only if he were paroled from state custody, an
performance of the plea agreement was event that would trigger his federal
impossible, and the promises made to him imprisonment. Only under those particular cir-
therefore were illusory. Finally, he alleged cumstances would his time in federal
ineffective assistance of counsel. imprisonment be credited by the state. But
that benefit was enough for the state court to
The Texas Court of Criminal Appeals re- support the plea agreement against a habeas
jected the petition without written order, challengeSSeven though other evidence
thereby accepting the trial court’s finding that, established that Montoya sought fully
if nothing else, the exchange in open court concurrent sentences and that Hardwick had
between the petitioner and the judge told him that the agreement guaranteed fully
(excerpted above) adequately informed concurrent sentences, despite counsel’s
awareness that Texas law did not provide as
much because the federal sentence had not yet
4
See TEX. CODE CRIM. P. art. 26:13(a) (“Prior been imposed.
to accepting a plea of guilty . . . the court shall ad-
monish the defendant of: (1) the range of the D.
punishment attached to the offense”). See also In early 1997SSafter the April 24, 1996, ef-
T EX. CODE CRIM. P. art. 26:13(c) (“In fective date of AEDPASSMontoya filed the
admonishing the defendant as herein provided, instant petition for federal habeas relief before
substantial compliance by the court is sufficient, the same judge who had sentenced him on the
unless the defendant affirmatively shows that he federal carjacking charge. The federal court
was not aware of the consequences of his plea and
granted the habeas petition and ordered Mon-
that he was misled or harmed by the admonishment
toya’s immediate release from Texas custody
of the court.”).
to the U.S. Marshal so that he could begin ser-
5
See TEX. CODE CRIM. P. art. 26:13(b) (“No vice on his federal charge. In doing so, the
plea of guilty . . . shall be accepted by the court court noted that, at the time it sentenced Mon-
unless it appears that the defendant is mentally toya on the federal charge, the judge had held
competent and the plea is free and voluntary.”).

4
office for only a short time and that were he substantially restricts the scope of federal re-
able to do the sentencing over again, he would view of state criminal court proceedings.8 As
do everything in his power to ensure a before, a habeas petitioner has the burden un-
concurrent federal sentence. der AEDPA to prove that he is entitled to
relief.9 In addition, however, AEDPA directs
The court then gave the state 120 days to that
allow Montoya to withdraw his plea and
choose either to enter a new plea or proceed [a]n application for a writ of habeas
to trial. The court stayed its order pending corpus on behalf of a person in custody
this appeal. pursuant to the judgment of a State
court shall not be granted with respect
II. to any claim that was adjudicated on the
Before enactment of AEDPA, “a federal merits in State court proceedings unless
court entertaining a state prisoner’s application the adjudication of the claimSS
for habeas relief . . . exercise[d] its
independent judgment when deciding both (1) resulted in a decision that
questions of constitutional law and mixed was contrary to, or involved an
constitutional questions (i.e., application of unreasonable application of,
constitutional law to fact). In other words, a clearly established Federal law,
federal habeas court owed no deference to a as determined by the Supreme
state court’s resolution of such questions of Court of the United States; or
law or mixed questions.”6
(2) resulted in a decision that
Embodying the principles of federalism, was based on an unreasonable
comity, and finality of judgments,7 AEDPA

7
(...continued)
6
Williams v. Taylor, 120 S. Ct. 1495, 1516 effect when a habeas petition is filed.”) (quoting
(2000) (O’Connor, J., concurring). See also Mackey v. United States, 401 U.S. 667, 682-83
28 U.S.C. § 2254(d) (West 1994). (1971) (Harlan, J., concurring)). See also
Williams, 120 S. Ct. at 1506 (Stevens, J.,
7
See Teague v. Lane, 489 U.S. 288, 306 concurring) (“It is perfectly clear that AEDPA cod-
(1989) (“Habeas corpus has always been a ifies Teague to the extent that Teague requires
collateral remedy, providing an avenue for federal habeas courts to deny relief that is
upsetting judgments that have become otherwise contingent upon a rule of law not clearly
final. It is not designed as a substitute for direct established at the time the state conviction became
review. The interest in leaving concluded litigation final.”).
in a state of repose, that is, reducing the
controversy to a final judgment not subject to 8
See Williams, 120 S. Ct. at 1516 (O’Connor,
further judicial revision, may quite legitimately be J., concurring) (noting that AEDPA “placed a new
found by those responsible for defining the scope of restriction on the power of federal courts to grant
the writ to outweigh in some, many, or most writs of habeas corpus to state prisoners.”).
instances the competing interest in readjudicating
9
convictions according to all legal standards in See id. at 1518; Engle v. Isaac, 456 U.S. 107,
(continued...) 134-35 (1982).

5
 determination of the facts in Montoya claims, first, that his guilty plea
light of the evidence presented was induced by a breached or illusory promise
in the State court proceeding. from the state and therefore was not entered
into knowingly, voluntarily, and intelligently,
28 U.S.C. § 2254(d). as the Due Process Clause requires. He
additionally claims that counsel was
Thus, federal courts may not grant the writ constitutionally ineffective by failing to explain
merely on a finding of error by a state court, the illusory promise to him.
but only if a state court “arrives at a
conclusion opposite to that reached by [the Although the Texas state courts rejected
Supreme Court] on a question of law or if the both claims on petition for state habeas relief,
state court decides a case differently than [the the federal court granted relief on both
Supreme Court] has on a set of materially grounds. Concluding that the state court rea-
indistinguishable facts,” Williams, 120 S. Ct. sonably rejected Montoya’s claims, we re-
at 1523SSa contention Montoya does not verse.
make.
III.
Absent such a direct conflict with the A guilty plea will be upheld on habeas re-
Supreme Court, the writ is available only if the view if entered into knowingly, voluntarily,
state court “unreasonably applies [clearly es- and intelligently. See James v. Cain, 56 F.3d
tablished federal law, as determined by the 662, 666 (5th Cir. 1995).
Supreme Court] to the facts of the prisoner’s
case,” id., or makes “an unreasonable
determination of the facts in light of the
evidence presented in the State court 11
(...continued)
proceeding.”10 The standard is one of completed in this case, the Supreme Court rejected
objective reasonableness.11 that standard in favor of a purely objective
standard of reasonableness. See Williams, 120 S.
Ct. at 1521-22 (“The placement of this additional
10 overlay [of reasonable jurists] on the ‘unreasonable
28 U.S.C. § 2254(d)(2). See also 28 U.S.C.
§ 2254(e)(1) (“In a proceeding instituted by an ap- application’ clause was erroneous. . . . Stated
plication for a writ of habeas corpus by a person in simply, a federal habeas court making the
custody pursuant to the judgment of a State court, ‘unreasonable application’ inquiry should ask
a determination of a factual issue made by a State whether the state court’s application of clearly
court shall be presumed to be correct. The established federal law was objectively
applicant shall have the burden of rebutting the unreasonable. The federal habeas court should not
presumption of correctness by clear and convincing transform the inquiry into a subjective one by
evidence.”). resting its determination instead on the simple fact
that at least one of the Nation’s jurists has applied
11
The state makes reference to a standard of the relevant federal law in the same manner the
“reasonable jurists,” under which the federal writ state court did in the habeas petitioner’s case. The
is granted only if the state court has applied federal ‘all reasonable jurists’ standard would tend to
law in a manner that all reasonable jurists would mislead federal habeas corpus courts by focusing
agree is unreasonable. But after briefing was their attention on a subjective inquiry rather than
(continued...) on an objective one.”).

6
 A plea of guilty entered by one fully A.
aware of the direct consequences, First, we conclude that the state committed
including the actual value of any no breach of the plea agreement, because a
commitments made to him by the court, state is not responsible for what might occur in
prosecutor, or his own counsel, must federal criminal proceedings. In doing so, we
stand unless induced by threats (or follow Hendrix v. Norris, 81 F.3d 805, 807
promises to discontinue improper (8th Cir. 1996), in which that court an-
harassment), misrepresentation nounced:
(including unfulfilled or unfulfillable
promises), or perhaps by promises that Rather than breaching its agreement . . .,
are by their nature improper as having the state scrupulously honored the plea
no proper relationship to the bargain: the state requested that Hen-
prosecutor’s business (e.g. bribes). drix serve his state sentences
concurrently with his federal sentence,
Brady v. United States, 397 U.S. 742, 755 and the state court entered such an
(1970) (emphasis added). In other words, order. That federal prosecutors did not
where a plea “rests in any significant degree on make a similar request in federal court
a promise or agreement of the prosecutor, so does not mean that the state breached its
that it can be said to be part of the inducement plea agreement; “state prosecutors
or consideration, such promise must be cannot bind federal prosecutors without
fulfilled.” Santobello v. New York, 404 U.S. the latter’s knowledge and consent.”
257, 262 (1971). Otherwise, “[w]hen a United States v. Fuzer, 18 F.3d 517,
defendant pleads guilty on the basis of a 520 (7th Cir. 1994). Neither is the state
promise by his defense attorney or the court responsible for the federal court’s
prosecutor, whether or not such promise is imposition of a consecutive sentence:
fulfillable, breach of that promise taints the the discretion of a federal sentencing
voluntariness of his plea.” McKenzie v. court cannot be limited by a state
Wainwright, 632 F.2d 649, 651 (5th Cir. court’s judgment. See United States v.
1980). “It is clear that an unfulfilled state Adair, 826 F.2d 1040, 1041 (11th
promise obtained in return for a plea of guilty Cir.1987) (per curiam) (federal court
will entitle a prisoner to habeas relief.” could impose sentence consecutive to
McNeil v. Blackburn, 802 F.2d 830, 832 (5th state sentence, although state court had
Cir. 1986). imposed a concurrent sentence).

Thus, a finding that Montoya’s plea The circumstances in Hendrix are remark-
agreement contained either an illusory or ably similar to those here. The state promised
breached promiseSSand that the state court that Montoya’s state sentence would run con-
unreasonably found to the contrarySSwould currently with his federal sentence, and it did;
warrant federal habeas relief. Alternatively, if indeed, his current federal custody is available
the terms of the agreement, though fulfilled, as credit against his state sentence. The state
were misrepresented to MontoyaSSand if the court therefore acted reasonably in denying
state court unreasonably found to the con- habeas on this ground.
trarySShabeas relief also would be justified.

7
 Nor was the promise illusory. If Montoya proceedings. Solemn declarations in open
were paroled from state custody (indeed, as he court carry a strong presumption of verity.”
was by the federal district court a quo), he Id. at 74.
would have been transferred to federal custody
pursuant to the federal detainer arrangement. On habeas review, the state court rejected
Time spent in federal prison then would then Montoya’s claim that the agreement was mis-
have been credited to his state sentence. represented to him. Looking at the exchange
Granted, only then would there have been between the court, Montoya, and his counsel,
another sentence with which Montoya’s state one reasonably could disagree with the state
sentence could have run concurrently, but that court’s determination that Montoya had
was enough to render the promise not illusory. entered into the plea agreement knowingly,
voluntarily, and intelligently. To be sure,
B. “[t]he law of this Circuit . . . holds that the
Failure to explain the distinction to Monto- defendant’s subjective belief alone is not
ya between state courts and prosecutors on the sufficient to invalidate a guilty plea.”12 Thus
one hand, and federal courts and prosecutors Montoya must show that the plea agreement
on the other, would constitute sufficient cause had been objectively misrepresented to him.
for habeas relief, for we do not expect a
defendant “instinctively to appreciate the Were this de novo review, federal habeas
allocation of state and federal prosecuting and relief arguably might be warranted. The
sentencing authority.” Finch v. Vaughn, 67 sentencing court merely explained that he
F.3d 909, 915 (11th Cir. 1995). Thus, if in the could not bind the federal court. The court did
course of his state proceedings Montoya was not articulate, for example, what it was that
misled into believing that his state plea would the agreement did provideSSnamely,
bind the federal court and guarantee that his concurrent sentencing effective only upon a
state and federal sentences would run parole release from state custody into federal
concurrently, his plea was entered into custody. That is, the state court explained, “I
involuntarily and thus “unconstitutionally can’t bind the federal judge to do anything.
induced in violation of his due process rights.” But what I am saying is that . . . you will be
Id. at 916. given credit on this sentence with the time you
serve in federal court.” But the court did not
A court sitting in habeas review should not, go on to say, for example, that “you will be
however, lightly find misrepresentation in a
plea agreement. The various advantages of the
plea bargaining system “can be secured . . . 12
only if dispositions by guilty plea are accorded Matthews v. United States, 569 F.2d 941,
943 (5th Cir. 1978). Cf. Self v. Blackburn, 751
a great measure of finality.” Blackledge v.
F.2d 789, 793 (5th Cir. 1985) (“Self’s
Allison, 431 U.S. 63, 71 (1977). Thus, “the ‘understanding’ . . . that he would serve only ten
representations of the defendant, his lawyer, years and six months of a life sentence, does not
and the prosecutor at [the original plea constitute a promise or a plea bargain, and hence
hearing], as well as any findings made by the his continued confinement does not demonstrate
judge accepting the plea, constitute a that a plea bargain was violated. It, therefore, does
formidable barrier in any subsequent collateral not undermine the voluntariness of his guilty
plea.”).

8
given credit on this sentence with the time you Vaughn, 67 F.3d 909, 916 (11th Cir.
serve in federal court only should you be 1995) (habeas petitioner’s plea-bar-
released into federal custody prior to the end gained guilty plea in state court was in-
of your state sentence.” voluntary because no one had explained
that the federal court could reject the
The state sentencing court’s admonitions state court’s imposition of concurrent
therefore might not have been enough to ex- state and federal sentences).
plain the true terms of the agreement,
particularly in light of Montoya’s assurance The state court in fact did warn Montoya
from counsel that he would be able to obtain that the plea agreement bound only the state
concurrent sentencing as he understood it. court. A fortiori, his plea agreement was en-
One in his shoes might reasonably have tered into voluntarily and knowingly.
assumed, then, that fully concurrent
sentencing, though not yet confirmed, was all IV.
but a done dealSSjust as the plea agreement To show that he has suffered from
between Montoya and the prosecutor, unconstitutionally ineffective assistance of
requiring the ultimate approval of the state counsel, a habeas petitioner must establish two
court, had once been all but complete. Indeed, elements:
Montoya might have reasonably believed that,
just as with his plea agreement with the state, First, the defendant must show that
from which he might have withdrawn had the counsel’s performance was deficient.
state court rejected it, so too could he have This requires showing that counsel made
withdrawn from his state plea had the federal errors so serious that counsel was not
court subjected him to consecutive sentencing, functioning as the “counsel” guaranteed
as it later did. the defendant by the Sixth Amendment.
Second, the defendant must show that
But the deferential review required under the deficient performance prejudiced the
AEDPA, forbidding state courts only from un- defense. This requires showing that
reasonable applications of clearly established counsel’s errors were so serious as to
federal law as determined by the Supreme deprive the defendant of a fair trial, a
Court, constrains us from interfering with the trial whose result is reliable. Unless a
state criminal process by granting federal ha- defendant makes both showings, it
beas relief in this case. In Hendrix, 81 F.3d at cannot be said that the conviction or . .
807-08, the court reasoned as follows: . sentence resulted from a breakdown in
the adversary process that renders the
We disagree with the district court’s result unreliable.[13]
conclusion that Hendrix’s guilty plea in
the state court was invalid. We assume,
without accepting, that the state court’s 13
Strickland v. Washington, 466 U.S. 668, 687
apparent failure to warn Hendrix that (1984). See also Hill v. Lockhart, 474 U.S. 52, 57
the federal court need not impose a con- (1985) (“Although our decision in Strickland v.
current sentence could result in an Washington dealt with a claim of ineffective assis-
invalid guilty plea. See, e.g., Finch v. tance of counsel in a capital sentencing proceeding,
(continued...)

9
 closeness of that case, however, makes plain
The habeas petitioner has the burden to prove the path we must take on federal habeas
ineffectiveness by a preponderance of the review pursuant to AEDPASSthat is,
evidence. See Martin v. Maggio, 711 F.2d deference to the state court’s reasonable
1273, 1279 (5th Cir. 1983). application of clearly established federal law as
determined by the Supreme Court. The
With respect to the second, “prejudice” federal district court may have regretted its
prong, “a court making the prejudice inquiry decision to sentence Montoya consecutively
must ask if the defendant has met the burden with the state sentence, but federal habeas
of showing that the decision reached would review is not an appropriate remedy, for this
reasonably likely have been different absent the petition requests a degree of interference with
errors.” Washington, 466 U.S. at 696. “To the state criminal justice system that AEDPA
satisfy the ‘prejudice’ requirement, the expressly forbids.
defendant must show that there is a reasonable
probability that, but for counsel’s errors, he REVERSED.
would not have pleaded guilty and would have
insisted on going to trial.” Hill, 474 U.S.
at 59.

The trial court explained to Montoya that it
had no power to bind the federal court, to
which Montoya responded: “I understand.”
The state court was not unreasonable in
concluding that any deficiency in Hardwick’s
representation was constitutionally cured at
that time. Montoya therefore cannot satisfy
the prejudice prong for an ineffective
assistance counsel of claim sufficiently to
justify federal habeas relief under AEDPA.

V.
At most, this was a close case for the Texas
Court of Criminal Appeals, sitting on habeas
review, to determine whether the state
sentencing court adequately had explained the
terms of the agreement to defeat Montoya’s
dual claims of unknowing plea and prejudice
by ineffective assistance of counsel. The

13
(...continued)
. . . the same two-part standard seems to us
applicable to ineffective-assistance claims arising
out of the plea process.”).

10