Opinion
No. 1D2023-0035
11-29-2023
Jeremy A. BEDGOOD, Petitioner, v. STATE of Florida, Respondent.
Jeremy A. Bedgood, pro se, Petitioner. Ashley Moody, Attorney General, Tallahassee, for Respondent.
Petition Alleging Ineffective Assistance of Appellate Counsel—Original Jurisdiction.
Jeremy A. Bedgood, pro se, Petitioner.
Ashley Moody, Attorney General, Tallahassee, for Respondent.
Per Curiam.
Petitioner has timely petitioned, alleging that his appellate counsel was ineffective in consolidated appeals 1D2020-1960 and 1D2019-4037.
Petitioner’s consolidated appeals involved two separate lower tribunal criminal cases. In 2019-CF-1124, the State charged Petitioner with robbery by sudden snatching (count I), false imprisonment (count II), resisting an officer without violence (count III), and domestic violence battery (count IV). In 2019-CF-1518, the State charged Petitioner with attempted first-degree premeditated or felony murder with a firearm (count I), attempted first-degree premeditated or felony murder with a weapon (count II), aggravated assault with intent to commit a felony (count III), aggravated stalking by violating an injunction or court order (count IV), and violation of an injunction for protection against domestic violence (counts V and VI).
The jury found Petitioner not guilty of robbery by sudden snatching, but convicted him of false imprisonment, resisting an officer without violence, domestic violence battery, and attempted first-degree murder as charged (specifically finding that he actually possessed a firearm, discharged said firearm, and caused great bodily harm to the victim). The jury also found Petitioner guilty of the second attempted first-degree murder as charged (expressly finding that he possessed a weapon during the offense), aggravated stalking, and violating protective injunctions (both counts). The trial court sentenced Petitioner to sixty months in prison for false imprisonment, time served for resisting arrest without violence, eleven months and thirty days in jail for domestic violence battery, life in prison for attempted first-degree murder with a firearm, life in prison for attempted first-degree murder with a weapon, sixty months in prison for aggravated stalking, and eleven months and thirty days in jail for both violations of protective injunction. Petitioner’s life sentences were to run consecutively to one another, but all other sentences would run concurrently.
On appeal, appellate counsel argued: 1) the trial court erred when it allowed the prosecutor to comment on Petitioner’s right to remain silent; 2) the trial court erred when it allowed improper closing arguments that shifted the burden of proof; 3) the trial court erred when it allowed the prosecutor to cross-examine Petitioner regarding his opinions about the veracity of the State’s witnesses; 4) cumulative error; and 5) defense trial counsel was ineffective for failing to object to the improper cross-examination and closing arguments. Ultimately, this Court affirmed Petitioner’s convictions and sentences and issued its mandate on January 31, 2022. Petitioner now argues that his appellate counsel was ineffective. While his pleading is not the model of clarity, Petitioner appears to be arguing that the use of "and/ or" in the jury instructions confused the jurors and allowed them to believe they could convict him of attempted premeditated murder based on actions that he took in the attempted felony murder charge, with the underlying felony of aggravated stalking.
[1–4] Petitioner’s claim is meritless. To prevail on a petition alleging ineffective assistance of appellate counsel, a petitioner must allege specific acts or omissions of counsel which fell below the standard of reasonableness under prevailing professional norms and must show that the outcome would have been different but for counsel’s performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellate counsel cannot be ineffective for failing to raise an issue without merit. Rutherford v. Moore, 774 So. 2d 637 (Fla. 2000).
The same standard and test applicable to trial counsel have been held to apply to appellate counsel. The prejudice prong looks at whether appellate counsel’s failure or deficiency compromised "the appellate process to such a degree as to undermine confidence in the fairness and correctness of the outcome under the governing standards of decision." Johnson v. Wainwright, 463 So. 2d 207, 209 (Fla. 1985) (citing Strickland, 466 U.S. at 668, 104 S.Ct. 2052).
A person convicted of a crime, whose conviction has been affirmed on appeal and who seeks relief from the conviction or sentence on the ground of ineffectiveness of counsel on appeal must show, first, that there were specific errors or omissions of such magnitude that it can be said that they deviated from the norm or fell outside the range of professionally acceptable performance; and second, that the failure or deficiency caused prejudicial impact on the [petitioner] by compromising the appellate process to such a degree as to undermine confidence in the fairness and correctness of the outcome under the governing standards of decision.
Johnson v. Wainwright, 463 So. 2d 207, 209 (Fla. 1985) (citing Strickland, 466 U.S. at 668, 104 S.Ct. 2052).
[5] Because trial counsel did not object to the jury instructions, appellate counsel could only have made this argument on appeal if there was fundamental error. In Croom v. State, this Court found that it was not fundamental error to include the "and/or" conjunction between the names of the victims in a jury instruction because the totality of the circumstances indicated that the language did not reach into the validity of the trial itself to the point that a guilty verdict could not have been obtained without it. 36 So. 3d 707, 710–11 (Fla. 1st DCA 2010).
The information charged Petitioner with attempted first-degree murder with a firearm against Victim 1, and attempted first-degree murder with a weapon against Victim 2. In instructing the jury on the crimes at issue, the trial court explained the lesser included offenses, when a defendant was justified in using self-defense, the definition of a dangerous weapon, that a defendant could commit attempted first-degree murder by premeditation or felony murder, and the elements of aggravated stalking. The trial court did use the conjunction "and/or", but only in the initial portions of the instruction, when it was explaining the elements and definitions of "attempted", premeditated murder, and felony murder. Given that the State had charged Petitioner with attempted first-degree murder as to both victims under both the premeditated and felony murder theories, this was not unreasonable. Examining the record from Petitioner’s direct appeal, under the totality of the circumstances, there is no chance that this undermined Petitioner’s defense to the point that it invalidated the trial. During the trial itself, Victim 1 testified that the other victim (her sister) got into a "tussle" with Petitioner after Petitioner confronted them. She then testified that Petitioner shoved her back into the passenger side of the vehicle she and her sister were in and then "he leans over her and he shoots me." She also testified that after he shot her in the stomach, Petitioner started choking her. Petitioner also hit her in the back with a hatchet. She also testified that just before he shot her and began to choke her, Petitioner attacked her sister, Victim 2, with the hatchet. In contrast, Victim 2 claimed that Petitioner struck her with his fist, with the hatchet, and with the pistol. She never claimed that Petitioner shot her or tried to shoot her with the pistol. The State also introduced a 911 call where Victim 2 told the 911 operator that Petitioner was stalking her sister, not her. Under these circumstances, Petitioner cannot demonstrate that the use of "and/or" vitiated Petitioner’s defenses and the trial itself to such an extent that the verdict could not have been obtained without it. Thus, appellate counsel had no grounds on which to make this argument and was not ineffective for failing to do so. See Zack v. State, 911 So. 2d 1190, 1204 (Fla. 2005) (holding that appellate counsel is not ineffective for failing to raise a meritless issue on direct appeal).
For these reasons, this Court denies the petition alleging ineffective assistance of appellate counsel.
Osterhaus, C.J., and B.L. Thomas and Nordby, JJ., concur.