IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
ANTHONY M. WAIT, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-1167
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed March 3, 2017.
An appeal from the Circuit Court for Bay County.
James B. Fensom, Judge.
Rachael Elizabeth Bushey of O'Brien Hatfield, P.A., Tampa, for Appellant.
Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney
General, Tallahassee, for Appellee.
ROBERTS, C.J.
Appellant, Anthony M. Wait, appeals the denial of his Florida Rule of
Criminal Procedure 3.850 motion for post-conviction relief. We affirm.
Appellant and a co-defendant were charged (under the principal theory) with
making, possessing, throwing, or discharging of a destructive device, which carried
a mandatory minimum sentence of ten years’ imprisonment, and with transporting a
firebomb. The co-defendant went to trial first and was acquitted. After the former
co-defendant was acquitted, he agreed to testify against Appellant. Right before
Appellant’s trial began, Appellant rejected a favorable plea offer that would have
adjudicated him guilty of a felony, required him to write a letter of apology to the
victim, and would have placed him on two years of community control followed by
three years of probation. Appellant proceeded to trial and was convicted of both
crimes.
In Appellant’s motion for post-conviction relief, he argued that his trial
counsel was ineffective for failing to properly advise him to accept the plea offer
and about all of the pertinent matters, such as the principal theory, relevant to his
case. He further argued that trial counsel’s failure to advise him about all of the
pertinent matters denied him the ability to make an informed decision about whether
or not he should accept the plea offer. The post-conviction court granted Appellant
an evidentiary hearing and made extensive findings. On appeal, Appellant now
argues that trial counsel was ineffective when she affirmatively advised him to reject
a favorable plea based upon her unreasonable expectations of success at trial. Since
Appellant did not amend his post-conviction relief motion below to say that trial
counsel affirmatively advised him to reject the plea, the State was denied the
opportunity to conclusively refute the inference that trial counsel conveyed her
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personal beliefs about Appellant’s case to Appellant. His rephrased argument on
appeal invites a different analysis from the analysis provided by the post-conviction
court and invites this Court to improperly dismiss the post-conviction court’s
findings of credibility and reweigh the evidence. We decline to accept Appellant
rephrased argument on appeal.
During the evidentiary hearing on Appellant’s post-conviction motion,
Appellant’s trial counsel testified that she met with Appellant multiple times and
went over the evidence against him including: the discovery she received from the
State; Appellant’s entire interrogation with the law enforcement; the evidence from
the former co-defendant’s trial; the applicable case law including the principal
theory; and the former co-defendant’s deposition. Trial counsel testified that she
gave Appellant a copy of his interrogation and they discussed Appellant’s
incriminating statements. Trial counsel also testified that she believed Appellant
understood the principal theory based upon his testimony at trial, which was he did
not know about the former co-defendant’s intentions nor that there was a firebomb
in the car. The post-conviction court found trial counsel’s testimony more credible
than Appellant’s testimony with regards to the legal advice that she provided to
Appellant and found Appellant understood the principal theory based upon his trial
testimony. Trial counsel affirmatively testified that she never advised Appellant to
reject the plea offer and had advised Appellant that it was a “good plea.” Appellant
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testified that trial counsel told him to reject the plea offer, but the post-conviction
court did not find Appellant’s testimony credible. Trial counsel testified that she left
the decision up to Appellant about whether or not to accept the plea offer.
Because the evidence does not show that trial counsel actually advised
Appellant to accept the plea, the post-conviction court had to determine whether or
not trial counsel provided Appellant with enough information to allow him to make
an informed decision about whether or not he should accept the plea. The inquiry
must focus on what trial counsel conveyed to Appellant about his chance of an
acquittal and not on what she believed. Trial counsel testified that she told Appellant
that it was “possible for him to win” and he had a “chance,” but she also said she
would not guarantee success. There is no credible record evidence, as suggested by
the dissent, that trial counsel conveyed or displayed her confidence of obtaining an
acquittal to Appellant.
In her assessment of Appellant’s chance of an acquittal at trial, trial counsel
testified that Appellant’s case and the former co-defendant’s case possessed the
same operative facts with two exceptions. Those two exceptions are the testimony
of the former co-defendant and Appellant’s own inculpatory statements that he was
talked into going along with the former co-defendant’s plan to throw the firebomb
at the victim’s house and that he drove the former co-defendant to the house.
Appellant admitted that trial counsel went over his statements to law enforcement
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and Appellant thought those statements could be harmful if that interrogation was
played for the jury. Appellant also admitted that trial counsel went over the
deposition of the former co-defendant with him. Appellant knew that the former co-
defendant was going to testify against him and identify him as the person who threw
the firebomb. Appellant admitted that trial counsel told him that his case would
come down to credibility. The court found trial counsel’s assessment that it was
“possible” for Appellant to be acquitted was not unreasonable based upon her
perspective at the time Appellant rejected the plea offer. It also found trial counsel
was not ineffective.
We review the post-conviction court’s factual findings for competent,
substantial evidence and its legal conclusions de novo. See Stephens v. State, 748
So. 2d 1028, 1033 (Fla. 1999). This Court will not substitute its judgment for that
of the post-conviction court on questions of fact, the credibility of witnesses, or the
weight given to the evidence. See Blanco v. State, 702 So. 2d 1250, 1252 (Fla.
1997).
The framework for analyzing claims of ineffective assistance of counsel was
articulated in Strickland v. Washington:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the defendant of a
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fair trial, a trial whose result is reliable. Unless a defendant makes both
showings, it cannot be said that the conviction . . . resulted from a
breakdown in the adversary process that renders the result unreliable.
466 U.S. 668, 687 (1984).
The post-conviction court is instructed to view trial counsel’s performance
from her perspective at the time of the event in order to avoid the distorting effects
of hindsight. Id. at 689.
The dissent is correct in stating that trial counsel had a duty to correctly advise
Appellant about his chance at trial. There is nothing in the record, other than
Appellant’s vacillating testimony during the post-conviction relief hearing that was
found not to be credible, that shows trial counsel’s assessment of a chance of or a
possibility of an acquittal was inaccurate. Actually, there is competent, substantial
evidence to support the post-conviction court’s finding that trial counsel’s
assessment that it was “possible” for Appellant to be acquitted at trial was not
unreasonable. Trial counsel informed Appellant that his case came down to
credibility. Trial counsel was going to do her best to discredit the former co-
defendant as he was high on pills and inebriated at the time of the incident. During
the former co-defendant’s deposition, he admitted that he initially lied to law
enforcement about his presence at the scene of the crime and only told them that
Appellant threw the firebomb after law enforcement confronted him with evidence
that he was present. Additionally, the former co-defendant did not actually see
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Appellant throw the firebomb. Appellant told trial counsel that he had been coerced
into giving law enforcement the statements that he provided during his interview,
and she found him credible. If the jury had found Appellant’s testimony at trial more
credible than the other evidence presented, this case would not be before this Court.
Therefore, the dissent’s assertion that Appellant had no possibility of an acquittal is
inaccurate. There is a distinct difference between the words “possible” or “chance”
and “reasonable chance” as it is “possible” and one does have a “chance” to win the
lottery, but one does not have a “reasonable possibility” to win the lottery. Trial
counsel informed Appellant about the things that must happen in order for Appellant
to obtain an acquittal. Therefore, trial counsel’s advice was accurate.
Trial counsel’s conveyed assessment of a “possible” acquittal with the
understanding that the jury would have to find Appellant’s testimony at trial more
credible than the other evidence, along with the explanation about how the case law
applied to all the evidence, provided Appellant all the information required by the
law to make an informed decision about whether or not he should accept the plea
offer. The record reveals that Appellant was reluctant to accept the favorable plea
offer because he would become a convicted felon by entering the plea. Trial counsel
testified that Appellant told her he did not want to be a convicted felon over “burnt
grass.” Appellant was also a nursing student who was close to finishing his
bachelor’s degree and knew he would not be able to be a licensed nurse if he was a
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convicted felon. Knowing his fate was sealed if the jury did not find his trial
testimony more credible than the other evidence, he still chose to take his case to
trial. There is nothing in the record, as suggested by the dissent, to suggest that trial
counsel did not make him aware of what he was facing if the jury found his testimony
less credible than the other evidence other than Appellant’s vacillating testimony
about what he and trial counsel discussed. If this Court were to accept the statement
that Appellant did not know what would happen if the jury did not believe his trial
testimony, then that would mean Appellant did not know he was facing a minimum
mandatory sentence of ten years in prison. The post-conviction court stated that trial
counsel did not fail to advise Appellant of that fact, and Appellant did not raise that
claim in his motion for post-conviction relief.
In retrospect, Appellant should have taken the plea, but this Court cannot look
at the facts through the eyes of someone who did not obtain an acquittal. This Court
can only view facts as they existed at the time Appellant rejected the plea offer and
chose to go to trial. Appellant was provided the facts required by law to make an
informed decision about whether or not he should have accepted the plea offer.
Based upon the fact that Appellant knew his case came down to his credibility at
trial, his former co-defendant was going to testify that Appellant was solely
responsible for the crimes, and his own prior statements would be used against him,
it is not likely that he would have accepted the plea offer had trial counsel advised
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him as suggested by the dissent. It is more likely that Appellant would have fired
his trial counsel and sought new counsel who would have sought an acquittal rather
than urge him to accept the plea.
Even if the post-conviction court had found trial counsel was ineffective,
Appellant cannot show prejudice. Under Strickland, Appellant had to show that trial
counsel’s performance was deficient and he was prejudiced by her performance in
order to be entitled to relief. Id. at 687. In order to show prejudice, a defendant
must show that: (1) he would have accepted the plea offer had trial counsel advised
him correctly; (2) the State would not have withdrawn the plea offer; (3) the trial
court would have accepted the plea offer; and (4) the conviction or sentence or both
would have been less severe under the plea offer than the defendant received under
the judgment and sentence that were actually imposed. Cruz-Betanzos v. State, 169
So. 3d 1236, 1237 (Fla. 1st DCA 2015). The post-conviction court found
Appellant’s testimony that he would have accepted the plea offer unbelievable. The
post-conviction court is the court that assesses credibility and assigns the weight of
the evidence, and this Court cannot substitute its judgment for that of the post-
conviction court. See Stephens, 748 So. 2d at 1033. The dissent fails to
acknowledge that the post-conviction court made a finding of fact that Appellant
would not have accepted the plea offer, and that finding is supported by competent
and substantial evidence. The post-conviction court’s finding is supported by its
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credibility finding that Appellant’s testimony was not believable that he would have
accepted the plea and trial counsel’s testimony about her conversations with
Appellant and his reluctance to become a convicted felon.
AFFIRMED.
WOLF, J., CONCURS; B.L. THOMAS, J., DISSENTS with opinion.
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B.L.THOMAS, J., DISSENTING.
I respectfully dissent, because Appellant established that he was entitled to
relief under Lafler v. State, 132 S. Ct. 1376 (2012), and Alcorn v. State, 121 So. 3d
419 (Fla. 2013). Defense counsel provided ineffective assistance to Appellant by
affirmatively advising him that he had a “possibility” of obtaining an acquittal, when
under the “facts and circumstances” of this case, Appellant had a zero possibility of
obtaining an acquittal. Cf. Morgan v. State, 991 So. 2d 835, 841 (Fla. 2008)
(affirming denial of evidentiary hearing where, although defense counsel informed
client he should reject plea offer, and defendant was convicted and received harsher
sentence, defendant failed to allege that “counsel’s assessment of the chances of
success at trial was unreasonable under the facts and circumstances of this case”),
receded from on other grounds by Alcorn, 121 So. 3d at 419. Defense counsel, who
had never previously tried a criminal case in Florida, failed to properly inform
Appellant that he had no reasonable alternative to accepting the State’s highly
advantageous plea offer, which required no incarceration. Defense counsel misled
Appellant, who, thinking he could be acquitted, was predictably convicted and
received a mandatory ten-year prison term.
Defense counsel’s unjustified confidence regarding the likely outcome at trial
misadvised Appellant at a critical stage of the criminal prosecution. Thus, counsel
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provided ineffective assistance, in violation of the Sixth Amendment to the United
States Constitution, under Strickland v. Washington, 466 U.S. 668 (1984).
Based on the evidence, including Appellant’s motive and his inculpatory
statements to the police, no reasonable jury would have acquitted Appellant. This
was not a case where identification was at issue, where the State’s testifying witness
was cooperating in order to hope to receive a more favorable plea offer, or where the
occurrence of the crime was in question. Instead, this was a case where any
reasonable defense counsel would have warned Appellant in the most vigorous
manner possible that a jury would find Appellant guilty.
When an attorney negligently advises a client that they may have a possibility
for an acquittal, when in fact there is no reasonable possibility for such a result,
ineffective assistance is demonstrated if the defendant testifies that he or she would
have accepted the plea offer with professionally accurate advice. See Hauter v.
State, 42 Fla. L. Weekly D65 (Fla. 5th DCA Dec. 22, 2016) (citing Lamb v. State,
202 So. 3d 118, 120 (Fla. 5th DCA 2016), for proposition that “‘[a] claim that
misinformation supplied by counsel induced a defendant to reject a favorable plea
offer’” can state a facially valid postconviction claim, and that defendant must allege
that “counsel’s assessment of the chances of success at trial was unreasonable”
(quoting Colon v. State, 909 So. 2d 484, 490 (Fla. 5th DCA 2005))); Paul v. State,
198 So. 3d 999, 1000 (Fla. 4th DCA 2016) (ordering hearing on claim, based in part
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on defendant’s claim that counsel failed to inform him of maximum sentence or
“why case was not defensible”). Here, despite defense counsel’s unrebutted
testimony that she informed Appellant the plea offer was a good offer, she failed to
advise Appellant to forego a trial that was certain to result in a conviction and
mandatory prison term. Instead of enabling Appellant’s wishful thinking that he
(and counsel) might prevail at trial, defense counsel had an affirmative obligation to
do just the opposite – encourage Appellant to accept the plea offer in the firmest
manner, consistent with counsel’s obligation to zealously represent Appellant at
trial.
Although the trial court rejected the credibility of Appellant’s self-serving
testimony that counsel had not informed him that his pretrial statements were
inculpatory, 1 even this finding supports rather than defeats Appellant’s argument, in
part, at least, as it goes to the reality faced by defense counsel and Appellant:
Appellant’s own words to law enforcement were sure to inculpate him before the
jury, providing all the more reason to accept the plea offer.
Furthermore, there are two fundamental and salient facts here which are not
in dispute regarding the evidence Appellant faced at trial. First, there was no dispute
1
The trial court conducted a prompt and comprehensive evidentiary hearing, and
while I disagree with the legal conclusions of the trial court’s order, based on the
facts adduced at the hearing in a light most favorable to the order, I commend the
trial court’s efforts to ensure Appellant’s claim was thoroughly and timely evaluated.
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that the person testifying against Appellant, who had previously been charged and
acquitted, was going to identify Appellant as the person who was the actual
perpetrator in firebombing the doctor’s home. And second, this same witness would
credibly establish, along with other evidence, that no one except Appellant had any
motive to commit this violent crime, because Appellant thought the victim, a doctor,
had provided negligent medical care to Appellant’s grandmother. And the acquittal
of the other party who testified against Appellant was not a fact or circumstance that
favored Appellant. The other party did not give similar inculpatory pretrial
statements and did not have Appellant’s motive for committing the crime. Even if
there was evidence that the other party may have been a principal to the offense, this
fact did not exculpate Appellant, but only gave the jury reason to think Appellant
was the actual perpetrator who relied on the other party’s experience with explosives
to help carry out the crime.
Despite these monumental disadvantages, however, defense counsel advised
Appellant that there was a real possibility of success:
I advised him that it is possible that he can win. I advised him
also that he could take the plea. I would never go to trial knowing the
client would lose. If he thought he had a chance, if I thought no way
you had a chance, I would get off the case before I tried the case.
But if he was confident that he could win and I was confident
that he could win, I was confident that we could at least cast reasonable
doubt, then yes, I’d say there is a chance you can win. I would never
guarantee success, ever. But, yes, I gave him a chance that, I did say
there was a chance he could win.
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(Emphasis added.) This was not trial strategy, but unjustified confidence and a
failure to properly advise Appellant that he had to accept the plea if he wanted to
avoid a sure conviction and ten years in state prison. Defense counsel’s illusory
evaluation of success was not based on any reasonable view of the evidence, but
only on mutually reinforcing false hopes between defense counsel and Appellant.
Defense counsel’s performance was therefore deficient by misleading Appellant into
a false expectation of success at trial, despite the overwhelming evidence of
Appellant’s guilt.
The fact that Appellant, a person not trained in the law, thought he might
obtain an acquittal is not dispositive, when the deficient performance is defense
counsel’s failure to warn of the adverse consequences Appellant was certain to suffer
should he go to trial. It is only speculation to assume Appellant would have
continued to obstinately refuse to accept such a generous plea offer, given the State’s
evidence, as it was defense counsel’s professional obligation, as counsel, to properly
advise Appellant, which would have removed all doubt as to whether Appellant
would have accepted a plea offer that no rational defendant would refuse. Cf. Munoz
v. S. Miami Hosp., Inc., 764 So. 2d 854, 857 (Fla. 3d DCA 2000) (stating that “[i]t
simply flies in the face of common sense” and indulges in improper speculation to
uphold summary judgment based on physician’s failure to warn other physician of
potential adverse medical consequences “conveyed with due concern and gravity by
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professional colleagues,” even where physician, who was not warned, testified he
received similar information from lay person). Here, it “flies in the face of common
sense” to speculate that Appellant would have chosen a conviction and ten years’
imprisonment, rather than plead guilty but avoid incarceration. Appellant, like all
criminal defendants, must rely on the legal advice of an attorney to “convey[] with
due concern and gravity” the catastrophic consequences that will follow a reckless
decision to turn down the only viable option of a favorable and lenient plea
settlement when faced with a certain conviction and lengthy incarceration. Id.
In order to determine if a defendant was prejudiced by trial counsel’s
deficiencies during a plea offer, a defendant must show that: (1) he would have
accepted the plea offer had trial counsel advised him correctly; (2) the State would
not have withdrawn the plea offer; (3) the trial court would have accepted the plea
offer; and (4) the conviction or sentence or both would have been less severe under
the plea offer than the defendant received under the judgment and sentence that were
actually imposed. Cruz-Betanzos v. State, 169 So. 3d 1236, 1237 (Fla. 1st DCA
2015). All criteria here are met. Because of defense counsel’s ineffective legal
advice, Appellant was denied the opportunity to make an informed choice, and the
record shows that had he been properly informed, in blunt, no-uncertain terms that
he was going to be convicted and would be required to serve a ten-year prison term,
he would have chosen to accept the plea offer. While the court found that Appellant
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did not want to accept the plea so he could continue with his nursing education, a
guilty verdict, conviction and a ten-year prison term were obviously going to
preclude that option. Furthermore, there was no dispute that the plea remained in
effect or that the trial court would have accepted the plea.
A criminal trial is not the occasion for hoping for a miracle at a client’s
expense. Had defense counsel properly advised Appellant, when on the day of trial
counsel put on the record that a plea offer was made and rejected, then the
ineffectiveness claim could be rejected. But this would require that defense counsel
inform the court, and Appellant, that counsel had urged him to accept the plea,
advised that he was highly likely to be convicted because the evidence was
overwhelming, and that Appellant’s rejection of the very reasonable plea offer was
against defense counsel’s clear advice to the contrary.
Defense counsel acknowledged that, had she thought there was no possible
chance for an acquittal (which there wasn’t, absent a jury pardon), she would have
declined to represent Appellant at trial. But that is not the proper response here.
Instead, what defense counsel should have told Appellant, in so many words, was:
“You have no reasonable chance of winning this trial, and if you turn down the plea,
you are choosing a prison sentence over a sentence of house arrest and probation, so
I must urge you in the most strenuous terms possible to accept the plea, and if you
do not, I must establish a record that your decision is against my legal advice.”
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Whether defense counsel would then be allowed to withdraw from representing
Appellant is not relevant here. And had Appellant, in this scenario, demanded
defense counsel withdraw, this issue would not be before us here.
The final question here is what precise remedy should be provided. The State
had offered a plea of no incarceration, but community supervision of five years, to
include two years of community control. If Appellant was granted relief, I would
have recommended the trial court consider the analysis and commentary of Lafler:
The specific injury suffered by defendants who decline a plea offer as
a result of ineffective assistance of counsel and then receive a greater
sentence as a result of trial can come in at least one of two forms. In
some cases, the sole advantage a defendant would have received under
the plea is a lesser sentence. This is typically the case when the charges
that would have been admitted as part of the plea bargain are the same
as the charges the defendant was convicted of after trial. In this situation
the court may conduct an evidentiary hearing to determine whether the
defendant has shown a reasonable probability that but for counsel's
errors he would have accepted the plea. If the showing is made, the
court may exercise discretion in determining whether the defendant
should receive the term of imprisonment the government offered in the
plea, the sentence he received at trial, or something in between.
In some situations it may be that resentencing alone will not be full
redress for the constitutional injury. If, for example, an offer was for a
guilty plea to a count or counts less serious than the ones for which a
defendant was convicted after trial, or if a mandatory sentence confines
a judge's sentencing discretion after trial, a resentencing based on the
conviction at trial may not suffice. See, e.g., Williams, 571 F.3d, at
1088; Riggs v. Fairman, 399 F.3d 1179, 1181 (C.A.9 2005). In these
circumstances, the proper exercise of discretion to remedy the
constitutional injury may be to require the prosecution to reoffer the
plea proposal. Once this has occurred, the judge can then exercise
discretion in deciding whether to vacate the conviction from trial and
accept the plea or leave the conviction undisturbed.
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In implementing a remedy in both of these situations, the trial court
must weigh various factors; and the boundaries of proper discretion
need not be defined here. Principles elaborated over time in decisions
of state and federal courts, and in statutes and rules, will serve to give
more complete guidance as to the factors that should bear upon the
exercise of the judge's discretion. At this point, however, it suffices to
note two considerations that are of relevance.
First, a court may take account of a defendant's earlier expressed
willingness, or unwillingness, to accept responsibility for his or her
actions. Second, it is not necessary here to decide as a constitutional
rule that a judge is required to prescind (that is to say disregard) any
information concerning the crime that was discovered after the plea
offer was made. The time continuum makes it difficult to restore the
defendant and the prosecution to the precise positions they occupied
prior to the rejection of the plea offer, but that baseline can be consulted
in finding a remedy that does not require the prosecution to incur the
expense of conducting a new trial.
Lafler v. Cooper, 132 S. Ct. at 1389.
Here, this case appears to qualify for the second category described in Lafler,
because Appellant was convicted of an offense requiring imposition of a mandatory
prison term. Thus, the most practical remedy would be to order the state attorney to
reoffer the original plea offer, allow Appellant to accept a modified plea offer which
includes a guilty plea to both offenses, and credit for time served in state prison up
to the date this case is resolved, and issue an order vacating the conviction resulting
from the trial. Alcorn, 121 So. 3d at 428-29. This was a very serious crime, and
Appellant’s legal and moral culpability is not in doubt. The prison sentence he has
served is appropriate punishment for this violent offense, and by including it in a
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modified postconviction plea offer, the interests of justice and the recognition of the
“considerable resources the State properly invested in [Appellant’s] prosecution”
would be properly accommodated. Id. at 428. As recognized in Lafler, the courts
which face these types of claims must be allowed latitude in crafting remedies.
I would reverse for the reasons stated above for further proceedings. Thus, I
respectfully dissent.
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