Phillips, Kenneth Wayne

83, (/HZ 'Q;Oz)Oq/Cg;dg

[ Author Italics ]
..."With respected consideration of the lHonorable
Court, Applicant ask that the Court do not hold his

unclear and unprofessional Pleadings on the same
par of Professional Pleadings.

APPLICANT
Kenneth Phillips

P\cu%QfIn\covpond¥efv¢L¥¥\Clru$€$\huwier

RECE|VED |N
couRr oF chMmALAPPEALs

APR 15 2015

Abe| Acosta, Clerk

33 ,…& 03 105 /O(“|/OS,UJ

CAUSE NO. 923443-A

923444-A
924337-A
924338-A
Ex PARTE ' § IN THE 177'1'H_ DISTRICT
KENNETH PHILLIPS § coURT oF
Applicant. ‘ . § HARRIS GOUNTY, TEXAS

APPLICANT'S PROPOSES FINDINGS OF FACT,
CDNCLUSION OF LAW AND ORDER

OOMES NOW, Applicant Kenneth Phillips, (1153438 T.D.C.J.) filing pro se,
(Motion) In Support of Writ of Habeas Corpus inreference to causes number's
923443, 923444, 924337, and 924338, from the proceedings held in The l77th
Judicial District Court of Harris County, Texas...asserting for the most part
that he was denied the right to the - Effective Assistance of Counsel. During
plea offer negotiation by Attorney Reo Harris, and here Invoke (Rule 201)(b)
Judicial Notice and its Subsections)(in support of the Memorandum of Law `

to support Application for Writ of Habeas Corpus...received.v

Kenneth Phillips, herefore referred to applicant maintain that he is
presently being held imprisoned at the W.G. McConnell Unit in Beeville, County
Texas, pursuant to the conviction in Houston, Texas. And in violation of
his guaranteed Effective Assistance of Counsel 6th Amend. Protection of Equal
Rights 6th and 14th Amendment to the United States Constitution.

FINDING OF FACTS

Applicant, Kenneth Phillips was offered a 15 years plea bargain from'
the States prosecution Mia Magness. After having being offered 70 years,
50 years, 40 yearsl 25 years and finally a 15 year sentence that; which the

W"Applicant" allowed the Assistant District Attorney Mia Magness to acknow-

ledge that he accept the States proposed 15 year T.D.C. today offer. Mia>
Magness, then had explained to me that the papers could not be signed at
that time that l need to let my Attorney Reo Harris know that I am interested
in The Offer once he arrived. As soon as my Attorney arrived to the Hold-over

for (Defendants) awarting trial and plea deals. He was made fully aware of my`

Page l

` talk with the Assistant District Attorney Mia Magness. And was instructed by me
before all else (took place) go and let The States Prosecution know that
his client Kenneth Phillips has accepted The States proposed plead deal of
15 years T.D.C. today. My Attorney failed to communicate my acceptance of
the offer`having been proposed to me by The States assistant district attorney
Mia Magness. To my disappointment; disbelief. As Mr. Reo Harris, begain ex-
plaining .to me that he needed to be allowed to inspect the collected evidence
and make sure that `Houston Police Department done everything by protocol
and then went on to say to me the (applicant) that he would have the (15)
years re-offered to me a later date that he needed time to do his Job. The
plea of (15) years was rejected as it was coerced with_legal persuation...ln-

effective advise.

Obviously, the 15 years plea arrangement' was rejected as Applicant
Kenneth Phillips is now serving a (35) year sentence a much (Harsher) prison
term. Same charges and for the same guilty plea. it is here that the decision
to refuse (15) years said...offer brings in to question, the advise, perfor-
mance, and predice, of Counsel (Harris) overall legal-representation. See

Missouri v. Frye.

Applicant, contends that the outcome of the trial proceeding would
have been different absent the error of erroneous advise to reject the (15)
years. And don't be for the deficient performance that which led to the plea
of (15) years rejection: Missouri v. Frye, 566 U.S¢__ 2012. Applicant made
the decision to reject the plea of 15 years after the attorney (Instilled)
the concept_ that the same (plea) would still be achievable at a later date.
Such misinformation was the sole reason for the plea offer window concerning
the best offer which subsequently laapsed. The applicant communicated with
his (Attorney) explaining to his retained "Lawyer" all the evidence the State
Prosecution have` to make a solid case against him; that was confiscated from
his vehicle and from him personally. The applicant further explained....to his
(attorney) that there was video camera and that his face was unmasked, §§ght
Eye Witnesses ~of more, Four Weapons, one of which had been taking out of
the Pawn Shop during the commission of the crime. The Attorney Mr. Harris, was

ALSO MADE AWARE THAT ONE OF THE weapon confiscated from the vehicle was in the

shooting at The Pawn Shop that could put me at the scene. And that each wit-

Page 2

ness could take the witness stand against me, and provide credible testimony
and identify me as the one that robbed The Pawn Shop.'Due to the overwhelming

EVIDENCE that was known to my circumstance and consequences realized. Mr.
Reo harris, should have acted in my very best of interest as he did not.
' Mr. Reo Harris, was made aware of all the Facts first¥hand by me. So that
he could see why it was crucially important for me to receive a plea offer

of the lowest term of harsher punishment. As there is overwhelming evidence

tnat could get me The Maximum Prison term.

The Attorney Mr. Harris, legal representing was incompetent as he inten-
tionally provided me with erroneous advise. As my attorney Mr. Harris was
expected to get me the (15) years that had been offered to me as'a one time
deal as made clearly understood that my Attorney once he had arrived and
was briefed on my talk fortunately with The Assistant District Attorney Mia
Mafness, with him being my legal representation, and that his (duty) was
to get me the least amount of time. That was the 15 years which he the (Attor-
ney) was instructed to go and communicate in my best of insterest and inten-
tionally failed to do so apparently operating from his own interest rather

than mine.

Applicant was not afforded the effective assistance of counsel that

he is entitled to during "Plea Bargaining Negotiation. As a result he was
sentenced to a prison term of a much more (Harsher) sentence than the 15s
he was suposed to have received in The States one time offer of 15 years
to him. Applicant Kenneth Phillips, is entitled to the effective assistance
of counsel. See McMann v. Richards, 397 U.S. 759, 771 (1970). In Hill the
Court held the two part Strickland v. Washington, test applies to challenges

vto guilty pleas based on ineffective assistance of counsel. 474 U.S. at 58.

The performance prong .of Strickland require a defendant to show that
counsel legal-representation fail below the objective standard of reasonable-
ness. 474 U.S. at 57 (quoting Strickland , 466 U.S. at 488). In this case
all the parties agree the performance of respondent s counsel was deficient
when he advised respondent reject the plea offer on the grounds he could
not be convicted at the trial. In light of this concession it is unnecessary

for this Court to explore the issue.

Page 3.

The question fort this Court is how to apply Strickland prejudice test
where ineffective assistance result is a rejection of the plea offer and

defendant is convicted at ensuing trial. See Lafler v. Cooper, 566 U.S. 2012.

Applicant contends that don't be for his counsel Mr. Harris erroneous
advise and deficient performance that the outcome of the trial proceedings
would have been different in the outcome and sentencing phase...of the plea
bargaining process. Applicant claims that ineffective assistance lead to
the improvident acceptance of a guilty plea and there is a reasonable proba-
bility that but for counsels error [Applicant] would be serving a 15 years
' sentence instead of (35) years; that which is twice the amount of time than

'the 15 years proposed to Kenneth Phillips the applicant. See: Lafler v. Cooper:

Applicant Here however the injured client seeks relief from the counsels
failure ton meet a valid legal standard, not from counsels refusal to violate
it. Applicant maintain that absent ineffective counsel, he would have accepted
a plea offer for a sentence the prosecution evidently deemed consistent with
the sound administration of criminal justice. The favorable sentence a eluded
the ..... Applicant in the criminal proceeding appear_ to be the sentence
he or others in his position would have received in the ordinary course,

absent counsel ineffective assistance. Lafler v. Cooper, 566 U.S. 2012.

Applicant filed a Writ of Habeas Corpus to the convicting District
Court: Alleging that he was prejudiced by his Attorney Mr. Reo Harris to
receive a sentence of (15) years and that the deficient performance of the

Attorney clearly demonstrated ineffective assistance of counsel.

Applicant Kenneth Phillips, explained to his attorney that he had talk

with The State Prosecution Mia Magness. And_let him know that she was offering

him (15) years today. And that he accepted The Assistant District Attorney's
proposed offer of (15) years...and...then the Attorney was instructed to
inform The States Prosecution of my acceptance and he (failed) to communicate
mv interest and plea acceptance further to the State Prosecution...concerning

the lowest term of plea offers. That which deprived me opportunity:

In the instant cases: Missouri v. Frye, Attorney failed to inform him

Page 4

that The Prosecutor sent him a letter that proposed him a more lenient and

more favorable plea deal and he ended up taking a (Harsher) plea offer. he

subsequently pleaded guilty with no underlying plea agreement and was sentence

to Three years in prison. Seeking Post-Conviction relief in state court he

alleged his counsel failure to inform him of the...earlier plea offers denied

him the effective assistance counsel and he admitted that he would have pleaded
guilty to the ..... misdemeanor had he known of the offer. The Court denied

his Motion but the Missouri Appellate Court reversed, holding that Frye met

both the requirement for showing a Sixth Amendment violation under Strickland

v. Washington, 466 U.S. 668.

Specifically the Court found that the defense counsel had been ineffec-
tive in not communicating 'the plea offer and concluded that Frye had shown
that counsel deficient performance caused him prejudice because he pleaded
gufhy to a felony instead of a misdemeanor. The -Sixth Amendment right to
effective/ assistance of counsel extends to the consideration of plea offers
that lapse or 'are' rejected. Applicant was coerced to reject (15) years by

Attornev.

Applicant acceptance of the States 35 years sentence was based on in-
adeguate advise of his Attorney and misleading information. The Erroneous Ads
vise, received from his Attorney caused him to mis-out on opportunity to
receiver a more favorable sentence and entitles the applicant to become re-
offered the 15 years sentence according to the case. Missouri v. Frye, 566
U.S. 2012: Abu-Ein v. State, 921 S.W.2d 807 (Tex.App.-Houston [lA District]
A Defendant election to plead guilty when based on erroneous advise of counsel

is not voluntarily and knowingly.

At no time has the Applicant elected to freely choose a 35 year sentence
over the opportunity to receive the lesser sentence of 15 year nor have appli-
cant ever Inssisted on his innocence or maintained his innocence until the
' Attorney allowed him to know that he reviewed the video camera surveillance
footage with the applicant, which show the Applicant unmasked face clearly.
Afterwards the (Attornev); says that applicant instructed him to enter into

4plea negotiations with the state.

Page 5

Applicant was coerced to plead guilty by the erroneous advise and mis-
leading information of his Attorney,.Whose deficient performance and constitu-
tional error entitles me to the requested relief of having;the States original
plea of' 15 years reoffered to me. As request in the Writ of Habeas Corpus

art. ll.07. And should the court-Grant Evidentiary Hearing. Applicant intends

to prove that the 15 years had been verbally agreed to; by the Subpoena of
Mis Magness, Assistant District Attorney that present the offer and talkedlwith
me. k

Attorney Reo Harris was [hiredj to protect my interest and to safeguard
my right[s] as his poor professional performance fail below the objective
norm and standard of reasonableness as required by law and by the American
Bar Association.

Applicant and his hired Attorney had an agreed understanding at the
very beginning of his retainment, not to permit his professional strategy to
override the more importance of securing my» interest and right[s], over his
opposed expectation of his performance. _

Attorney- Harris erroneous assessment has caused me irreparable harm,
in having received the more harsher sentenc of 35 years.

Applicant have a Sixth Amendment right to counsel, a right that extends

to the plea-bargaining process. Frye,¢ante, at B.Also Padillo v. Kentucky/

559 U;S. (2010 )%Slip op, at 16); gill Supra at 57. During plea negotiations
defendant are entitled to the effective assistance of counsel and assistance
of competent counsel. McMann v. Richardson, 397 U.S. 759, 77l (1970).

In contrast to Hill v. Lockhart, 474 U.S. 52 (1985), here the ineffective

assistance and advise led not to an offers acceptance, but to its rejection

and Applicant having to except a harsher 35 years sentence, not choosing

to waive it, is the prejudice alleged. 1a A‘>p\ LC,c\~r\l~ C-OMY\SQ\ C,GQ\`C£A kim 10
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tdc a LLCQ Sen¥»z.nce,l was coerced ama mig,;n€orm@cl b_/ m/ j e_|/QZ;H“ va S%Qk)
Q¢§`\liC@ and m’i$in£§or'ma%ion(?§`)\{ cars had ¥o be amp}ed \/ mea Se ,

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qy,[ s,W.zd 5>'07(’1?)<./199;>.A'/Ow$€r'¢>'?!»f“/)¢5%“@l SLMJQF C“Se" §.g`mx§/W, qmg\qq¥). )

Applicant did not elect to chose a (35) year sentence over the (15)
year sentence that was a one time offer and more favorable sentence that
statements and allegations are alleging in the State's motion and Affidavit

of Attorney Reo Harris.

Applicant was deprived opportunity to receive the best deal of (15)
years., Due to the erroneous advise of attorney Mr. Reo Harris. That failed
to tell the States Assistant District Attorney that he the defense (accept)

the State's offer proposed of (15) years as was instructed for him to deliver
the client acceptance of the 15 year sentence as the best deal. In the attorney
instantly began under minding-applicant decision. Unitil he coerced applicant
to reject the (15) years. proposed to him by the State Assistant District
Attorney Mia Magness. The attorney only was to follow the given instructions

that was to inform The States Prosecution that his client accept the 15 years.

Attorney Deficient performance and erroneous advise lead to the (Appli-

cant) receiving a more (Harsher) sentence that the 15 years that had been
offered in the beginning. Applicant plea and acceptance of the greater sentence
were because of the (instilled)` belief by the (attorney) that if the (35)
years was not accepted that I would receive a Life Sentence. The 15 years

already had been taking,off the table due to counsel ineffective assistance.

The Supreme Court Ruling: Missouri v. Frye 566 U.S.___2012 and compan-
ion case Lafler v. Cooper, (citations omitted). Here the question is whether
defense counsel has the duty to communicate the terms of a formal offer to
accept a plea on terms and conditions that may be favorable to the defense and
that may result in a lesser sentence, a conviction of lesser charges or both.
The Court now holds that as a general rule, defense counsel has the duty
to communicate formal offers from the prosecution to accept a plea on terms
and conditions that may be favorable to the defense...the accused. Any excep-
tion that rule need not be explored here, for the offer was a formal one
with a fixed expiration date. When defense counsel allowed the 15 years to
expire without advising the defendant or allowing him to consider it, defense

counsel did not render the effective assistance the constitution require.

Though the standard for counsels performance is not determined solely

by reference to codified standards of professional pratice these standards can

Page 7

be important guides. The American Bar Association recommends defense counsel
promptly communicate and explain to the defendant all plea offers made by
the prosecution-prosecuting Attorney, A.B.A. Standards for Criminal justice,
Pleas of Guilty 14-3, 2(a) (3rd ed.1999), and this standard has been adopted
by numerous state and federal courts over the last 30 years. See, e.g
Davie v. State, 381 S.C.601, 608-609, 675 S.E.Zd 416, 420 (2009); COttle
v. State, 733 SO.2d 963, 965 966 (Fla.1999); Becton v. Hun, 205 W.Va. 1391
144, 516 S.E.Zd 762, 767 (1999); Harris v. State, 875 S.W.2d 662, 665 (Tenn.
1994); Lloyd v. Statey 285 Ga. 645,648, 373 S.E.2d 1, 3 (1988); United States
v. Rodriguez, 929 F.2d 747, 752 (CAl 1991)(per curiam); Pham v. United States,
317 F.3d 178, 182 (CA2 2003); United States ex rel. Caruso v. Zelinsky, 689
F2d 435, 438 (CA3 1982); Griffin v. United States, 330 F.3d 733, 737 (CA6
2003); Johnson v. Duckworth, 793 F.2d 898, 902 (CA7 1986); United States
v. Blaylock, 20 F.3d 1458, 1466 (CA9 1994); cf Diaz v. United States, 930
F.2d 832, 834 (CAll`1991).

The standard for prompt communication and consulation is also set
out in State Bar Professional.Standards for attorneys. See e.g. Fla. -- Rule
Regulating Bar 4<1.4 (2008); Ill. Rule Prof. Conduct. 1.4 (2011); Kan. Rule
Prof. Conduct 1.4. (2010); Ky. Sup.Ct. Rule.l30, Rule Prof. Conduct 1.4.
(2011); Mass. Rule Prof. Conduct 1.4. (2011-2012); Mich. Rule Prof. Conduct
1.4. (2011).

Applicant was telling his Attorney that he would rather go to a full
fledge' trial rather than acceprt the (35) years being offered. And that is
when the "Attorney" began to tell me that if I go to trial. I would get a
life sentence. But he never attempted to get me the (15) years as he was
instructed, just told me to sign the papers the papers was signed without
being admonished by my attorney to a understanding from Attorney and Client
communication. As required by (Law) he just would have me initial the (Plea

offers).

To note the prevalence of plea bargaining is not to criticize it. The
potential to conserve valuable prosecutorial resources and for defendants
to admit their crimes and receive more favorable terms and sentencing mean

that a plea agreement can benefit both parties. In order that these benefits

Page 8

can be realized however, criminal defendants require effective counsel during
plea negotiations. Anything less....might deny a defendant effective represen-
tation by counsel at the only stage when legal aid and advise would help
him; See; Massish, 377 U.S. at 204 (quoting Spano v. New York, 360 U.S. 315,
326 (1959)(Douglas J. concurring).

The fact that defendant is guilty does not mean he was not entitled
by the Sixth Amendment to effective assistance or that he suffer no prejudice
from his attorneys deficient performance during plea bargaining.

Sixth Amendment remedies should be tailored to the jury suffered from
the Constitutional violation (the rejection of 15 year sentence) and should
not unnecessarily infringe on competing interests. See United States v. Morri-
§an 449 U.S. 361, 364 (1981).

CONCLUSION OF LAW AND-AUTHORITIES

The challenge (or 'claim) herefor, is not to the advice pertaining to
the plea that was accepted, but rather to the course of Legal Representation
that proceeded it, with respect to the potential plea and plea offers. As
outlined (consistently) throughout this "Motion" applicant is now serving
a 35 year sentence because he sought a plea bargain from the begaining. The
fact that Applicant 4entered a guilty plea is evidence that he would have
accepted anything less than (35) years.

Obviously, the 15 years plea agreement was rejected as Applicant is
now‘ serving a much-harsher sentence. lt is here that the, decision to refuse
said offer brings into question the advise, performance and prejudice of
Attorney Reo Harris overall representation. v

WHEREEORE CONSIDERED, Applicant prays that ~the Honorable Court return
his cause to the point of his 15 year sentence offer in that he was entitled.
to the lesser sentence orl in vthe alternative relief the Court deems in the
best interest of justice..

Signed on this 231 th day of April, 2015.

Respectfully submitted,

Kenneth Phillips/APPLICANT
3001 S. Emily Dr.

Beevillen texas 78102
Page 9