Opinion
Case No. 5D20-2303
03-04-2022
John HIPLEY, Appellant, v. STATE of Florida, Appellee.
Matthew J. Metz, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
Matthew J. Metz, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
NARDELLA, J.
Appellant, John Hipley, challenges the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons that follow, we reverse the summary denial of Ground 3, Ground 6, the second part of Ground 8, and Ground 10 because those they are facially sufficient and not conclusively refuted by the record. As to the other grounds raised by Appellant, we affirm without discussion.
A jury convicted Appellant of robbing a drugstore with a firearm. After an unsuccessful direct appeal, Appellant filed a timely motion for postconviction relief. In Ground 3 of his motion, Appellant alleges that counsel was ineffective when he, without Appellant's consent, conceded during closing argument that a firearm was used in the robbery. Appellant argues that the concession affected the jury's ultimate determination that a firearm was used during the robbery, a determination that required the trial court to impose a 10-year mandatory minimum sentence.
In his closing argument, defense counsel stated: "[t]here's no question about whether it was a robbery with a firearm. You can clearly see that on the video."
Relatedly, in the second part of Ground 8 of his motion, Appellant claims that counsel compounded the effect of his erroneous concession by failing to object when the State countered in its rebuttal that people who commit crimes "always get rid of the guns," thereby suggesting that it was irrelevant that no gun was recovered when Appellant was arrested.
Ground 6 of Appellant's motion concerns counsel's cross-examination of Appellant's co-defendant Lora Partain. Lora Partain faced the possibility of life in prison for her role in the robbery but received only two years of probation after taking a plea deal offered by the State in exchange for her testimony against Appellant. During his cross-examination of Partain, counsel never elicited information regarding the possible sentence Partain faced but for her plea. Appellant argues that this omission constituted ineffective assistance of counsel.
Finally, Ground 10 of Appellant's motion asserts cumulative error.
The postconviction court summarily denied Ground 3, the second part of Ground 8, and Ground 6. If a postconviction court denies a motion for relief filed pursuant to Florida Rule of Criminal Procedure 3.850 without holding an evidentiary hearing, the motion must be either facially invalid or conclusively refuted by the record. Kimbrough v. State , 886 So. 2d 965, 981–82 (Fla. 2004) ; see also Lebron v. State , 100 So. 3d 132, 133 (Fla. 5th DCA 2012) ("If a ground's allegations are facially sufficient (pled in sufficient detail), the trial court must grant an evidentiary hearing unless the allegations are legally invalid (legally insufficient on their face) or records in the court's file conclusively show that the defendant is entitled to no relief."). Such rulings are reviewed de novo. Lebron , 100 So. 3d at 133.
Ground 3
It is well established that conceding that a defendant is guilty of a charged offense may constitute ineffective assistance of counsel when counsel did not obtain the defendant's consent to make the concession. See Harvey v. State , 946 So. 2d 937, 942 (Fla. 2006) (citing Florida v. Nixon , 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) ). It, therefore, stands to reason that conceding both an element of a charged offense and the basis for the imposition of a mandatory minimum sentence can, in some instances, also constitute ineffective assistance of counsel. Cf . Patton v. State , 784 So. 2d 380, 390 (Fla. 2000) (concluding that counsel is not ineffective for conceding facts supported by overwhelming evidence admitted at trial). Since counsel's firearm concession would and likely did affect the sentence imposed in this case, Appellant has stated a facially valid claim under Ground 3.
Next, we find Ground 3 is not conclusively refuted by the record. The postconviction court, by adopting the State's response, found counsel made a "strategic tactical decision" and his concession did not affect the jury's verdict. Ordinarily, the "denial of a claim of ineffective assistance based on a finding that counsel was engaging in reasonable trial strategy generally should only be made after an evidentiary hearing." Perez v. State , 128 So. 3d 223, 227 (Fla. 2d DCA 2013) (citing Porter v. State , 626 So. 2d 268, 269 (Fla. 2d DCA 1993) ). The narrow exception to this rule applies where it is "so obvious from the face of the record" that counsel's strategy is "very clearly a tactical decision" well within his or her discretion. See Hannon v. State , 941 So. 2d 1109, 1138 (Fla. 2006).
Here, the State hypothesized, and the postconviction court agreed, that counsel conceded the presence of a firearm to focus the jury's attention on what counsel believed was the more contested issue; namely, whether Appellant committed the robbery. However, it is not obvious from the record that counsel made the concession for that strategic reason.
Our conclusion is supported by the two cases the State relies on because, in both cases, the Florida Supreme Court found that the concessions were reasonable trial strategy only after an evidentiary hearing. McCoy v. State , 113 So. 3d 701, 714–16 (Fla. 2013) ; Belcher v. State , 961 So. 2d 239, 249 (Fla. 2007).
The Second Part of Ground 8
The failure to object to improper statements made by the State during closing arguments may constitute ineffective assistance of counsel. See State v. Milne , 921 So. 2d 792, 794 (Fla. 5th DCA 2006). Here, the State acknowledges that its argument concerning the disposal of firearms was "technically objectionable" because the argument was not supported by any evidence admitted during the trial. See, e.g. , Rodriguez v. State , 822 So. 2d 587, 588 (Fla. 2d DCA 2002) ("It is improper to argue facts that are not in evidence."). Thus, Appellant has stated a facially valid claim under the second part of Ground 8. Further, we find the second part of Ground 8 is not conclusively refuted by the record.
Ground 6
The failure to impeach a key witness may constitute ineffective assistance of counsel. See Bentley v. State , 867 So. 2d 515, 516 (Fla. 1st DCA 2004). Here, Appellant is not complaining about the manner in which counsel conducted his cross-examination of Partain, but the substance. Cf. Ventura v. State , 794 So. 2d 553, 566 (Fla. 2001). Partain was a key witness for the State because she provided information that linked Appellant to the robbery. Nevertheless, counsel elicited from Partain only that she received a plea deal for probation, without providing the jury with any information with which to evaluate the deal.
Importantly, the jury never knew that Partain was arrested for robbery with a firearm, punishable by up to life imprisonment, and that she was also charged with accessory after the fact to a first-degree or life felony. Because that information never came out, the State was able to argue in closing that, "[y]ou never heard what her charges were ... [y]ou don't [know] if that's a normal sentence for this type of charge ... [y]ou don't know if it's a light sentence ... because that was never brought up." In these circumstances, we believe Appellant's complaint about the substance of counsel's cross-examination states a facially valid claim which is not conclusively refuted by record attachments.
Ground 10
Finally, in Ground 10, Appellant alleges cumulative error. The postconviction court summarily denied this claim. Where multiple errors are found, even if deemed harmless individually, the cumulative effect of such errors may deny the defendant a fair and impartial trial. Hurst v. State , 18 So. 3d 975, 1015 (Fla. 2009). Because we reverse and remand the summary denials of Ground 3, the second part of Ground 8, and Ground 6, we also reverse the postconviction court's ruling on Ground 10. See Hempstead v. State , 980 So. 2d 1254, 1265 (Fla. 2d DCA 2008) (holding that reversal and remand on some claims required reversal of cumulative error claim).
On remand, the postconviction court must either conduct an evidentiary hearing or attach portions of the record conclusively refuting these claims.
AFFIRMED in part; REVERSED in part.
COHEN and EISNAUGLE, JJ., concur.