Opinion
Case No. 2D19-1092
05-01-2020
Anthony SCHWEBEL, Appellant, v. STATE of Florida, Appellee.
Anthony Schwebel, pro se. Ashley Moody, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Appellee.
Anthony Schwebel, pro se.
Ashley Moody, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Appellee.
CASANUEVA, Judge.
Anthony Schwebel appeals the order summarily denying his Florida Rule of Criminal Procedure 3.850 motion. We reverse and remand with instructions.
Mr. Schwebel pleaded nolo contendere pursuant to a negotiated plea agreement to one count each of felon in possession of a firearm, possession of methamphetamine, possession of hydrocodone, and possession of drug paraphernalia. The trial court sentenced him to concurrent terms of twelve years' imprisonment with a three-year minimum mandatory sentence for felon in possession of a firearm, time served for possession of drug paraphernalia, and five years' imprisonment on each of the remaining two counts.
In his motion for postconviction relief, Mr. Schwebel alleged that counsel was ineffective for failing to file a motion to suppress evidence obtained pursuant to an unlawful arrest and search. "When reviewing the summary denial of a motion for postconviction relief, this court applies de novo review and ‘must accept the movant's factual allegations as true to the extent that they are not refuted by the record.’ " Martin v. State, 205 So. 3d 811, 812 (Fla. 2d DCA 2016) (quoting Jennings v. State, 123 So. 3d 1101, 1121 (Fla. 2013) ). To plead a facially sufficient claim for ineffective assistance of counsel, a defendant must plead sufficient facts to establish that his trial counsel's performance was deficient and that he was prejudiced thereby. Id. (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). To establish the deficiency prong, the defendant must show that counsel's "errors [were] so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment." Hodges v. State, 885 So. 2d 338, 345 (Fla. 2004) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052 ). "In the plea context, a defendant satisfies the prejudice requirement only where he can demonstrate ‘a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.’ " Hernandez v. State, 124 So. 3d 757, 762 (Fla. 2012) (quoting Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ); see also Davis v. State, 15 So. 3d 770, 773 (Fla. 2d DCA 2009).
Although Mr. Schwebel raised two grounds for relief, we have combined them into one.
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Mr. Schwebel argued that counsel's performance was deficient because he should have filed a motion to suppress evidence. He also claimed that had counsel filed a motion to suppress or advised him of the possibility of a motion to suppress, he would not have pleaded guilty.
As the principal allegation of ineffective assistance of counsel here is counsel's failure to competently litigate a Fourth Amendment claim, our analysis begins with two cases: Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), and Campbell v. State, 271 So. 3d 914 (Fla. 2018).
In Kimmelman, like here, the allegation of ineffectiveness was the failure to seek suppression. Not only had counsel failed to timely file a suppression motion, but counsel had failed to ask for discovery. Pertinent to the instant case is the Supreme Court's discussion of the Fourth Amendment claim within the context of the Sixth Amendment's mandate of effective assistance of counsel.
Our nation's highest court said: "Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious ...." Kimmelman, 477 U.S. at 375, 106 S.Ct. 2574. Focusing upon the Sixth Amendment's two prongs for determining ineffective assistance—performance and prejudice—the Supreme Court explained: "[M]ore importantly, it differs significantly from the elements of proof applicable to a straightforward Fourth Amendment claim. Although a meritorious Fourth Amendment issue is necessary to the success of a Sixth Amendment claim like the respondent's, a good Fourth Amendment claim alone will not earn" a moving party relief. Id. at 382, 106 S.Ct. 2574. A demonstration of prejudice as mandated by Strickland, 466 U.S. 668, 104 S.Ct. 2052, remains required. Kimmelman, 477 U.S. at 382, 106 S.Ct. 2574 ; see also Hernandez, 124 So. 3d at 762 ; Davis, 15 So. 3d at 773. In determining prejudice in a plea context, i.e., a reasonable probability that, but for counsel's errors, the defendant would have insisted on going to trial, the postconviction court should consider the totality of the circumstances surrounding the plea. Davis, 15 So. 3d at 773. Such circumstances include whether a particular defense was likely to succeed at trial, the plea colloquy between the defendant and the trial court, and the sentence imposed under the plea compared to the maximum possible sentence the defendant would have faced at trial. Id. (quoting Grosvenor v. State, 874 So. 2d 1176, 1181-82 (Fla. 2004) ).
The second case, Campbell, also presents a Fourth Amendment suppression issue within the context of postconviction relief. There the appellant asserted that counsel failed to seek suppression of an incriminating statement made by him. The Florida Supreme Court enunciated the standard to apply in resolving the claim of ineffectiveness. In rejecting the claim of ineffectiveness the Florida Supreme Court stated: "Campbell has failed to demonstrate that if trial counsel had sought to suppress the jail statement, the motion would have been successful." Campbell, 271 So. 3d at 926.
We pause to observe that there are at least two individual searches that may require examination. First, there is the search of Mr. Schwebel's person; and second, there is the search of the automobile. In each instance Mr. Schwebel is required by law to establish his entitlement to Fourth Amendment protection. In constitutional terms it is commonly, albeit perhaps improperly, referred to as "standing." A full examination of each search issue may well require an evidentiary hearing.
Additionally, the factual development of the search issue regarding the automobile may impact the prejudice prong. To establish constructive possession the State bears the burden of establishing its elements, including the critical element of dominion and control. See McGowan v. State, 778 So. 2d 354, 357 (Fla. 2d DCA 2001). On remand, the trial court is to determine if trial counsel was ineffective by failing to file a meritorious motion to suppress, that is, a motion that would have been successful. If so, the trial court must next determine whether the defendant sustained prejudice as a result of the performance failure, having demonstrated "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hernandez, 124 So. 3d at 762 (quoting Hill, 474 U.S. at 59, 106 S.Ct. 366 ); see also Davis, 15 So. 3d at 773.
Accordingly, we reverse and remand the order on appeal with instructions to the trial court to evaluate the motion pursuant to the legal standard set forth herein and to either attach portions of the record that would conclusively refute Mr. Schwebel's claim or to convene an evidentiary hearing to determine whether Mr. Schwebel can establish his claim of ineffective assistance of counsel.
Reversed and remanded.
SLEET and LUCAS, JJ., Concur.