Supreme Court of Florida
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No. SC15-628
____________
JOSHUA LEE ALTERSBERGER,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
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No. SC15-1612
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JOSHUA LEE ALTERSBERGER,
Petitioner,
vs.
JULIE L. JONES, etc.,
Respondent.
[April 27, 2017]
PER CURIAM.
Joshua Lee Altersberger appeals an order of the circuit court denying his
motion to vacate his conviction of first-degree murder and sentence of death filed
under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ
of habeas corpus. For the reasons that follow, we vacate the death sentence and
remand for a new penalty phase.1
I. BACKGROUND
On direct appeal, this Court described the facts as follows:
Late in the morning of January 12, 2007, the [d]efendant drove
to a friend’s home in Highlands County. Also at the home was
Quentin Kinder, who was in Florida to avoid arrest for violating his
Georgia probation. After drinking and playing videogames,
Altersberger left the home with Kinder. Kinder testified that, at this
point, Altersberger was not so affected by the alcohol that his speech
was impaired but was “buzzing a little bit.”
Later that afternoon, around 3:00 p.m., Altersberger drove with
Kinder to a restaurant in Lake Placid in an effort to meet a girl whom
he believed to be working there. Upon learning that the girl was not
at work, Altersberger drove with Kinder to a nearby convenience store
so that he could buy a cigar. As Altersberger and Kinder were
walking out of the store, the two noticed a deputy sheriff in a marked
patrol car stopped at a red light. Kinder then heard Altersberger state,
as though he was speaking to the deputy, “You better not stop me or
I’m going to shoot you.”
Altersberger left the store with Kinder and drove north on
Highway 27 out of Lake Placid. Altersberger’s driving was
aggressively erratic, and he swerved several times in and out of heavy
afternoon traffic. At one point, Altersberger had to swerve in the
midst of a lane change in order to avoid striking another car. This
attracted the attention of Florida Highway Patrol Sergeant Nick Sottile
who had been travelling in the opposite direction and who turned to
pursue.
Kinder saw Sergeant Sottile turn around and notified
Altersberger. Altersberger responded by saying that he was going “to
push it,” or speed up to flee. Kinder told Altersberger not to try to
flee and also said that, because of his Georgia probation violation, he
was going to run from the car once Altersberger pulled over. As he
1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
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was pulling over, Altersberger cut sharply from the left lane across the
right lane, cutting off and nearly striking a semi truck. And, as
Altersberger pulled off the roadway, he stated to Kinder that he was
going to shoot Sergeant Sottile. Kinder told Altersberger not to shoot
the officer, and then got out of the car and ran into a nearby orange
grove.
Intending to complain to Sergeant Sottile about Altersberger’s
driving, the semi truck driver pulled over behind the trooper’s patrol
car. The truck driver then got out of his truck and walked toward
Sergeant Sottile, who ordered him back to his truck. From the
elevated cab of his semi truck, the driver was able to observe the
events that followed.
Sergeant Sottile approached Altersberger’s driver’s side
window with his hand resting on his gun. Altersberger raised his
hands as Sottile approached and kept them raised while he spoke with
Sottile for a short time. Sottile, appearing to be more comfortable
with the situation, took his hand from his gun. After Sottile took his
hand off his gun, Altersberger lowered his hands and pulled a gun.
Sergeant Sottile raised his hands and started to back away from
Altersberger’s window when Altersberger shot him. Sergeant Sottile
was hit near his left collar bone and fell backward to the ground.
Altersberger then reached out the window of his car to aim his gun at
Sergeant Sottile and tried several times to shoot him in the head, but
his gun would not fire. Altersberger then rapidly drove away.
Sergeant Sottile died shortly thereafter as a result of internal bleeding
from the gunshot wound.
Altersberger pled guilty to first-degree murder on March 13,
2009. At the penalty phase, the State presented testimony regarding
the murder of Sottile. The defense presented laywitness testimony of
Altersberger’s mother and aunt, one of his mother’s friends, and the
testimony of former teachers and health department employees who
remembered Altersberger as a child. These witnesses testified that
Altersberger had an impoverished and unstable upbringing and a
history of anger problems. They also testified that his mother had
very poor parenting skills, did not make good decisions regarding the
men that she brought around her children, did not treat or discipline
Altersberger appropriately, and did not display affection toward him.
Altersberger also presented the testimony of two mental health
experts. The first, Dr. Krop, a forensic psychologist, testified that
Altersberger has anger issues that stem from his dysfunctional
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relationship with his mother and the insecurity caused by her poor
parenting and decision-making throughout his childhood. Dr. Krop
also explained that, despite his 103 IQ, Altersberger has problems
with planning and impulse control and was extremely immature for
his age, both socially and developmentally. Dr. Gur, a
neuropsychologist who specializes in neuroimaging, testified that the
orbital frontal and amygdala regions of Altersberger’s brain are
significantly undersized and that such a condition would result in
impaired ability to control and regulate emotions and impulses, an
impairment that would be exacerbated by drug and alcohol use or
abuse. However, Dr. Gur stated that, because he had never met
Altersberger and was not familiar with the facts of the case, he could
not connect his findings to the crime itself.
The jury recommended the death penalty by a vote of nine to
three. After a Spencer[N.1] hearing, the trial court followed the jury’s
recommendation and sentenced Altersberger to death. In so doing, the
trial court found the following aggravators: (1) the victim was a law
enforcement officer engaged in the lawful performance of his official
duties (great weight); and (2) the murder was committed in a cold,
calculated, and premeditated manner (CCP) without any pretense of
moral or legal justification (great weight). The trial court also found
the following mitigators: (1) Altersberger was 19 years old at the time
of the murder (slight weight); (2) Altersberger’s capacity to appreciate
the criminality of his conduct or to conform his conduct to the
requirements of law was substantially impaired (moderate weight);[N.2]
(3) the offense was committed in an unsophisticated manner (very,
very slight weight); (4) Altersberger was under the influence of
alcohol at the time of the offense (little weight); (5) Altersberger had a
long-term history of substance abuse from age 15 (very slight weight);
(6) Altersberger was brought up in a dysfunctional family and home
environment (moderate weight); (7) Altersberger loves and is valued
by his family (very slight weight); (8) Altersberger loved his
grandfather and was devastated by his death (very slight weight); (9)
Altersberger was the victim of racial discrimination within his own
family (little weight); (10) Altersberger maintained good behavior
throughout the proceedings (very slight weight); and (11) Altersberger
[pled] guilty and took responsibility for the offense (little weight). In
weighing the aggravators and mitigators and determining death to be
the appropriate sentence, the trial court specifically stated “that the
aggravating circumstances in this case far outweigh the mitigating
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circumstances” and that “either aggravating circumstance alone would
outweigh all of the mitigating circumstances.”
[N.1] Spencer v. State, 615 So. 2d 688 (Fla. 1993).
[N.2] The trial court merged the following nonstatutory
mitigating circumstances into this one statutory
mitigator: (1) Altersberger did not fully develop
emotionally; (2) Altersberger did not fully develop
cognitively; (3) Altersberger has brain deficiencies that
reduce his ability to control impulse behavior; (4)
Altersberger has brain deficiencies that reduce his
capacity to make reasoned decisions; (5) Altersberger
suffered significant emotional deprivation while he was
growing up that adversely affected his psychological
development; and (6) Altersberger’s dysfunctional family
life prevented healthy psychological development. The
court then explained that it gave each mitigator slight
weight, individually, but moderate weight when merged
and considered collectively.
Altersberger v. State, 103 So. 3d 122, 124-26 (Fla. 2012).
This Court affirmed Altersberger’s conviction and death sentence on direct
appeal. Id. at 131. On direct appeal, Altersberger argued that the trial court erred
in finding the CCP aggravator. Id. at 126. And this Court also reviewed whether
Altersberger’s plea was knowingly, intelligently, and voluntarily made and
whether his death sentence was proportionate. Id. at 128-31. For preservation
purposes, Altersberger also argued on direct appeal that “(1) the use of hearsay
evidence during the penalty phase violates the Confrontation Clause; (2) Florida’s
death penalty statute violates Ring v. Arizona, 536 U.S. 584 (2002); (3) Florida’s
death penalty statute and jury instructions unconstitutionally shift the burden of
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proof to the defendant to show why death is not the appropriate sentence; (4) the
CCP aggravator is unconstitutionally vague and overbroad; (5) victim impact
evidence violates defendant’s due process rights; and (6) execution by lethal
injection is unconstitutional.” Id. at 126 n.4. This Court “reject[ed] each of these
arguments as contrary to this Court’s well established precedent.” Id.
Altersberger filed a motion for postconviction relief on November 13, 2013,
and filed an amended motion on March 7, 2014, which the trial court denied after
holding an evidentiary hearing. Altersberger appeals the trial court’s denial and
also petitions this Court for a writ of habeas corpus.
II. POSTCONVICTION MOTION
A. Ineffective Assistance of Trial Counsel
Altersberger argues that trial counsel was ineffective for failing to
adequately advise Altersberger, during the time frame between the entry of his
guilty plea and the trial court’s sentence of death, about the different legal standard
that applies to a motion to withdraw a guilty plea depending on whether the motion
is made prior to or after sentencing.2 However, we affirm the trial court’s denial of
this claim.
2. Altersberger also argues that trial counsel was ineffective during the
penalty phase and that there was reversible cumulative error. Because we remand
for a new penalty phase, we do not address these claims or the summarily denied
claims related to the penalty phase.
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Following the United States Supreme Court’s decision in Strickland v.
Washington, 466 U.S. 668 (1984), this Court explained that two requirements must
be met for ineffective assistance of counsel claims to be successful:
First, the claimant must identify particular acts or omissions of the
lawyer that are shown to be outside the broad range of reasonably
competent performance under prevailing professional standards.
Second, the clear, substantial deficiency shown must further be
demonstrated to have so affected the fairness and reliability of the
proceeding that confidence in the outcome is undermined.
Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright,
490 So. 2d 927, 932 (Fla. 1986)).
Regarding the deficiency prong of Strickland, there is a strong presumption
that trial counsel’s performance was not ineffective. Strickland, 466 U.S. at 689.
Moreover, “[a] fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id. The defendant carries the burden to
“overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955)).
Regarding the prejudice prong of Strickland, “the defendant must show that
there is a reasonable probability that, ‘absent the [deficient performance], the
factfinder would have [had] a reasonable doubt respecting guilt.’ ” Henry v. State,
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948 So. 2d 609, 617 (Fla. 2006) (quoting Strickland, 466 U.S. at 695). “A
reasonable probability is a ‘probability sufficient to undermine confidence in the
outcome.’ ” Id. (quoting Strickland, 466 U.S. at 694).
“Because both prongs of Strickland present mixed questions of law and fact,
this Court employs a mixed standard of review, deferring to the trial court’s factual
findings that are supported by competent, substantial evidence, but reviewing the
trial court’s legal conclusions de novo.” Dennis v. State, 109 So. 3d 680, 690 (Fla.
2012).
Florida Rule of Criminal Procedure 3.170(f) provides the legal standard that
applies to motions to withdraw plea agreements made prior to sentencing:
The court may in its discretion, and shall on good cause, at any time
before a sentence, permit a plea of guilty or no contest to be
withdrawn and, if judgment of conviction has been entered thereon,
set aside the judgment and allow a plea of not guilty, or, with the
consent of the prosecuting attorney, allow a plea of guilty or no
contest of a lesser included offense, or of a lesser degree of the
offense charged, to be substituted for the plea of guilty or no contest.
The fact that a defendant may have entered a plea of guilty or no
contest and later withdrawn the plea may not be used against the
defendant in a trial of that cause.
Fla. R. Crim. P. 3.170(f). Under this provision, a trial court has broad discretion in
determining motions to withdraw a plea, although it must permit withdrawal upon
“good cause.” State v. Partlow, 840 So. 2d 1040, 1042 (Fla. 2003).
Rule 3.170(l) provides the standard that applies to motions to withdraw plea
agreements made after sentencing:
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A defendant who pleads guilty or nolo contendere without expressly
reserving the right to appeal a legally dispositive issue may file a
motion to withdraw the plea within thirty days after rendition of the
sentence, but only upon the grounds specified in Florida Rule of
Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) except as provided by
law.
Fla. R. Crim. P. 3.170(l). According to this Court’s case law, pursuant to rule
3.170(l), once a sentence has been imposed, a defendant must demonstrate
manifest injustice or prejudice in order to withdraw a guilty plea. Campbell v.
State, 125 So. 3d 733, 736 (Fla. 2013); Partlow, 840 So. 2d at 1042. “[A] court
does not enjoy broad discretion as to motions filed after sentencing.” Griffin v.
State, 114 So. 3d 890, 898 (Fla. 2013).
In this case, Altersberger has not demonstrated deficiency. Regarding
Altersberger’s plea and including the time period between the entry of his guilty
plea and the trial court’s sentence of death, trial counsel discussed with
Altersberger “the importance of prevailing at the penalty phase and had explained
to him that entering a plea would be a good strategic decision.” Altersberger, 103
So. 3d at 128. The decision to enter a guilty plea was a difficult decision for
Altersberger to make, and it took him a while to make the decision to enter a plea.
However, as this Court noted on direct appeal, the decision to enter the plea was
ultimately made by Altersberger, it was “knowingly, intelligently, and voluntarily
made,” Altersberger was not forced or coerced into entering his plea, and he was
not promised anything in return for his plea. Id. at 130.
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This Court also noted that the trial court, after holding a Nelson3 hearing on
March 11, 2009, denied Altersberger’s motion to discharge his attorneys on the
grounds that they were improperly attempting to force him to plead guilty “because
there was nothing presented to indicate that counsel was ineffective or had
performed incompetently.” Id. at 129. After entering the plea on March 13, 2009,
and “a lengthy plea colloquy,” the judge inquired even further, and “Altersberger
told the judge that he had been fully advised by his attorneys that pleading guilty
would be in his best interest.” Id. at 129-30.
One of Altersberger’s trial counsels, Deb Goins, testified at the evidentiary
hearing that, to her knowledge, they did not talk to Altersberger about the specific
subtleties between filing a motion to withdraw a plea prior to sentencing versus
filing a motion to withdraw a plea after sentencing. And trial counsel Peter Mills
testified at the evidentiary hearing that he “probably covered the issues with him
generally,” but did not get into specifics. Nevertheless, trial counsel’s advice to
Altersberger that it was better to wait until after sentencing to move to withdraw
his plea was reasonable trial strategy. See Occhicone v. State, 768 So. 2d 1037,
1048 (Fla. 2000) (“[S]trategic decisions do not constitute ineffective assistance of
3. Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).
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counsel if alternative courses have been considered and rejected and counsel’s
decision was reasonable under the norms of professional conduct.”).
Specifically, trial counsel was weighing the decision to wait until after
sentencing to withdraw the plea so that their deal with the State to keep out
damaging testimony from the penalty phase would not be impacted against filing
the motion to withdraw the plea before sentencing where a different standard
would apply. As this Court discussed on direct appeal:
Altersberger’s attorneys testified that they knew the prosecution
had as many as twenty witnesses who could provide highly damaging
testimony as to Altersberger’s acts and admissions following the
shooting and that this testimony would make obtaining a life sentence
extremely difficult. They believed, therefore, that the best trial
strategy was to agree with the prosecution that Altersberger would
plead guilty in return for the prosecution not calling those witnesses at
the penalty phase. They also explained that when Altersberger asked
them what his odds of getting a life sentence would be, they told him
that they could not guarantee anything, but his chances would greatly
improve if he were to enter a plea so as to limit the prosecution’s
introduction of evidence at the penalty phase. As to his desire to
withdraw his plea prior to sentencing, Altersberger’s attorneys
testified that they explained Altersberger’s rights regarding plea
withdrawal and advised him against withdrawing the plea but would
have filed the motion to withdraw the plea if they had been directed to
do so.
Altersberger, 103 So. 3d at 129. And in denying Altersberger’s motion to
withdraw his plea that was filed after sentencing, the trial court explained that,
based on the testimony given by Altersberger and his attorneys, “[i]t is clear that
the [d]efendant in agreement with his attorneys made a tactical decision that it was
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in his best interest in the hopes of obtaining a life sentence to enter a plea of guilty
and proceed directly to the penalty phase.” Id. at 130.
Additionally, Altersberger has not demonstrated prejudice from trial
counsel’s decision to advise Altersberger to move to withdraw the plea after
sentencing rather than before sentencing and from failing to specifically explain
the different standards. After holding a hearing, Altersberger’s motion to withdraw
his plea, which was filed after sentencing, was denied. The trial court in this case
actually did review Altersberger’s plea and the circumstances surrounding his plea
before sentencing when Altersberger filed a motion to discharge his attorneys on
the grounds that they were improperly attempting to force him to plead guilty.
And, at the hearing on this motion, Altersberger also complained about his
attorney’s advice regarding the plea. Altersberger cannot show that the trial court
would have granted a presentence motion to withdraw his plea. Moreover, as this
Court’s review of Altersberger’s plea on direct appeal demonstrates, Altersberger
would not have been able to offer proof that his plea was not knowing, intelligent,
and voluntary. See id. at 128-30. Accordingly, Altersberger has failed to
demonstrate how he was prejudiced by trial counsel’s advice or lack of advice
regarding when to file the motion to withdraw his plea.
Therefore, because Altersberger has failed to establish deficiency and
prejudice, we affirm the trial court’s denial of relief.
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B. Hurst
Next, we consider whether Altersberger is entitled to relief after the United
States Supreme Court issued its decision in Hurst v. Florida, 136 S. Ct. 616 (2016).
Because the jury recommended the death penalty by a vote of nine to three, we
conclude that Altersberger’s death sentence violates Hurst. See Kopsho v. State,
209 So. 3d 568, 570 (Fla. 2017). We must then consider whether the Hurst error
was harmless beyond a reasonable doubt:
The harmless error test, as set forth in Chapman[v. California, 386
U.S. 18 (1967),] and progeny, places the burden on the state, as the
beneficiary of the error, to prove beyond a reasonable doubt that the
error complained of did not contribute to the verdict or, alternatively
stated, that there is no reasonable possibility that the error contributed
to the conviction.
Hurst v. State, 202 So. 3d 40, 68 (Fla. 2016) (quoting State v. DiGuilio, 491 So. 2d
1129, 1138 (Fla. 1986)), petition for cert. filed, No. 16-998 (U.S. Feb. 16, 2017).
Because the jury in this case recommended death by a vote of nine to three,
“we cannot determine that the jury unanimously found that the aggravators
outweighed the mitigation.” Kopsho, 209 So. 3d at 570. “We can only determine
that the jury did not unanimously recommend a sentence of death.” Id. Therefore,
because we cannot say that there is no possibility that the error did not contribute
to the sentence, the error in Altersberger’s sentencing was not harmless beyond a
reasonable doubt.
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Accordingly, we vacate the death sentence and remand for a new penalty
phase. See Hurst, 202 So. 3d at 69.
III. HABEAS PETITION
Altersberger argues that appellate counsel was ineffective for failing to raise
a claim on direct appeal regarding the voluntariness of Altersberger’s guilty plea.4
In this case, because the conviction for which the death penalty was imposed was
the result of Altersberger’s guilty plea, “this Court’s [mandatory] review shifts to
the knowing, intelligent, and voluntary nature of that plea.” Barnes v. State, 29 So.
3d 1010, 1020 (Fla. 2010) (quoting Tanzi v. State, 964 So. 2d 106, 121 (Fla.
2007)). This Court held on direct appeal that “Altersberger’s plea was knowingly,
intelligently, and voluntarily entered.” Altersberger, 103 So. 3d at 130. Because
this Court actually reviewed this claim on direct appeal, we deny relief. See
Wheeler v. State, 124 So. 3d 865, 889 (Fla. 2013) (denying habeas relief for claim
that appellate counsel were ineffective for failing to make more specific claims
regarding victim impact photographs because this Court already reviewed the
photographs on direct appeal); Messer v. State, 439 So. 2d 875, 879 (Fla. 1983)
(“Habeas corpus is not a vehicle for obtaining a second determination of matters
previously decided on appeal.”).
4. Because we remand for a new penalty phase, we do not specifically
address the penalty phase claim Altersberger raised in his habeas petition.
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IV. CONCLUSION
For the foregoing reasons, we affirm the denial of Altersberger’s
postconviction guilt phase claims, deny his guilt phase habeas claim, vacate his
death sentence, and remand for a new penalty phase.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
POLSTON, J., concurs in part and dissents in part with an opinion, in which
CANADY and LAWSON, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
POLSTON, J., concurring in part and dissenting in part.
I concur with the majority’s decision except its vacating of the death
sentence pursuant to Hurst.
CANADY and LAWSON, JJ., concur.
An Appeal from the Circuit Court in and for Highlands County,
Angela Jane Cowden, Judge - Case No. 282007CF000041XXAXMX
And an Original Proceeding – Habeas Corpus
James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, and Julie A.
Morley and Mark S. Gruber, Assistant Capital Collateral Regional Counsel,
Middle Region, Temple Terrace, Florida,
for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and C. Suzanne Bechard,
Assistant Attorney General, Tampa, Florida,
for Appellee/Respondent
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