Appellant and the State entered into a plea agreement. According to the plea papers, Appellant would be sentenced to three years unless she failed to show up for her sentencing hearing, in which case she would be sentenced within the full range of punishment. Appellant did not show up for her sentencing hearing, and she was later sentenced to ten years. The court of appeals determined that the “full range of punishment” part of the plea agreement was added by the trial court, that the trial court did not follow the parties’ plea bargain when it assessed the full range ofpunishment, and that the trial court abused its discretion in refusing to permit Appellant to withdraw her plea. We conclude that the court of appeals erred in finding an abuse of discretion because the “full range of punishment” term was a part of the plea agreement and Appellant failed to timely complain about any participation by the trial judge in the plea-bargaining process.I. BACKGROUNDA. TrialAppellant was charged with hindering apprehension. The record contains a plea document titled “AGREED PLEA RECOMMENDATION-NO APPEAL.” That document lists the range of punishment as two to ten years for a third degree felony and contains a notation that punishment would be three years. The document also contains an “other conditions” section, with the following two notations: (1) “Sentencing 1-21-16″ (a delayed sentencing date), and (2) “If Defendant does not show Judge will sentence within Range of Punishment.” This form was signed by Appellant, the State’s Attorney, and the trial judge. The agreement between the parties was discussed by the judge with Appellant during the plea proceedings:THE COURT: Ms. Hallmark, let me tell you what the agreement is that you have agreed to, and you tell me whether that’s what you signed up for, okay. Your case is set a week from Monday, for jury trial, and today was the trial announcement, where you had to commit to what you want to do, and your lawyer and the D.A. said that y’all had worked a deal out that you wanted to plead guilty but be sentenced in January. And I said that I would do it on two things: One, you would have to waive a jury, so I could take it off the jury docket for later in the month; and that if you came at the time you were supposed to, then I would follow the plea bargain out. If you did not come, and chose not to show, then you would be looking at the full range of punishment on the third degree felony, and I would assess your range of punishment, and the plea would be off. So if you do your part, you get your deal. If you don’t, then I decide what you get, no jury.Is that what you believed you signed up for?THE DEFENDANT: Yes, ma’am. Later, the trial judge summarized the plea agreement, which included the State’s recommendation of three years of confinement if Appellant showed up for sentencing or the trial judge considering the full range of punishment if she did not. The trial judge then asked, “Is that the agreement that you made?” Appellant responded, “Yes, ma’am.”Appellant did not show up for her January sentencing date. When sentencing proceedings were eventually conducted in March, the trial judge asked whether Appellant had any valid excuse for her failure to show. She offered none. The trial judge then stated, “I am not following the plea bargain. You weren’t here, so I am not—you are not getting three years.” After hearing evidence and argument, the trial judge sentenced Appellant to ten years. Defense counsel then objected to the sentence as follows: “Judge, I would just object to the sentence that it’s excessive, cruel, and unusual, and violation of the 8th Amendment. And given the Court’s sentence, I would further object that it renders the Defendant’s waivers of rights and plea of guilty involuntary.” The trial judge overruled these objections but gave Appellant permission to appeal.B. AppealThe court of appeals said that, even though the additional condition that Appellant appear for sentencing or be subjected to the entire range of punishment appeared in the memorandum of the plea bargain agreement, the trial court’s statements at the plea hearing indicated that the condition did not exist until the plea agreement was presented to the trial court, at which point the trial court added the additional condition.[1] The appellate court further concluded that, when the trial court sentenced Appellant within the full range of punishment, it was not following the plea agreement, and so it abused its discretion by overruling Appellant’s objection and declining to permit her to withdraw her guilty plea.[2] The court of appeals reversed the judgment of the trial court.[3]II. ANALYSISThe “other conditions” section of the plea form supports a conclusion that the “no-show / full-range-of-punishment” condition was part of the plea agreement between the parties and was not a condition imposed solely by the judge. The colloquy between Appellant and the trial judge does not show otherwise. This makes this case like Joshua Moore v. State, in which the parties agreed that the judge would delay sentencing and assess a specific sentence if the defendant did not commit a new offense in the interim, and also agreed that the judge could consider the full range of punishment if the defendant did commit a new offense.[4] The parties there called the sentencing- within-the-full-range part of the agreement an “open plea,” but we nevertheless concluded that it was a part of the plea agreement, a remedy for a partial breach of the agreement’s terms.[5]Because the “commit-a-crime / full-range-of-punishment” condition was a part of Joshua Moore’s plea agreement, and he committed a crime before the sentencing hearing, the trial judge was following the plea agreement when he considered the full range of punishment during sentencing, and Joshua Moore had no right to withdraw his plea.[6] Likewise, because the “no-show / full-range- of-punishment” condition was a part of Appellant’s plea agreement, and she did not show up for sentencing as she agreed to do, the trial judge was following the plea agreement when she considered the full range of punishment, and Appellant had no right to withdraw her plea.[7]It is not clear to us that the trial judge injected herself into plea negotiations. But even if she did, Appellant did not object at the time she entered her plea. We held in Jonathan Moore v. State that a defendant forfeits error if he fails to object to a trial judge’s improper participation in plea negotiations.[8] Any objection Appellant might have made at sentencing was untimely because the State had partially performed its part of the agreement by delaying sentencing and Appellant had partially breached the agreement by failing to show up for sentencing.[9]And even if the objection at sentencing had been timely, Appellant’s complaint on appeal does not comport with the objection that was made. Appellant objected that the sentence was cruel and unusual in violation of the Eighth Amendment and that her waiver of rights and plea of guilty was involuntary. Neither of these objections conveyed to the trial judge a complaint that she had improperly participated in plea negotiations. Because the complaint on appeal does not comport with either of the trial objections, nothing is presented for review.[10]Because the “no-show / full-range-of-punishment” condition was part of Appellant’s plea agreement and she forfeited any complaint about the trial judge’s participation in the plea negotiations, her complaints about the trial court’s judgment are without merit. The court of appeals was mistaken to hold otherwise.[11]We reverse the judgment of the court of appeals and remand the case to that court to address Appellant’s remaining point of error.Delivered: November 8, 2017Publish
