Opinion
Case No. 5D18-3663
09-13-2019
Larry Lee MADISON, Jr., Appellant, v. STATE of Florida, Appellee.
Robert Wesley, Public Defender, and Robert Thompson Adams IV, Assistant Public Defender, Orlando, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
Robert Wesley, Public Defender, and Robert Thompson Adams IV, Assistant Public Defender, Orlando, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
ORFINGER, J.
Larry Lee Madison, Jr., appeals the trial court's order denying Ground Four of his second amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse for further proceedings.
In 2008, Madison pled no contest to one count of robbery with a firearm, three counts of aggravated assault with a firearm and one count of possession of a firearm by a minor in exchange for adjudication of guilt being withheld and a youthful offender sentence of six years of probation. Roughly two years later, Madison was arrested for carrying a concealed weapon (a knife), resisting an officer without violence, and carrying a simulated firearm (pellet gun). The new charges and several technical violations resulted in the violation of his probation. With the advice of counsel, Madison pled no contest to violating his probation and was sentenced to twelve years in prison with a ten-year minimum mandatory on the armed robbery conviction and concurrent five-year terms in prison for the remaining convictions. This Court affirmed his convictions and sentences. Madison v. State, 146 So. 3d 53 (Fla. 5th DCA 2013).
Madison then filed a rule 3.850 motion, which he amended several times to assert a total of six claims. After the State filed its response, the trial court summarily denied Madison's amended motion. On appeal, we affirmed in part and reversed in part, and remanded for an evidentiary hearing on Ground Four, which alleged that counsel was ineffective for failing to file a motion to suppress. Madison v. State, 200 So. 3d 148, 148-49 (Fla. 5th DCA 2016). Pursuant to our mandate, the trial court held an evidentiary hearing and subsequently entered an order denying Ground Four, which is the subject of this appeal.
To prevail on an ineffective assistance of counsel claim, the defendant must prove that (1) trial counsel's performance was deficient and (2) the deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the context of a guilty or no contest plea, the Florida Supreme Court established a two-prong test for determining claims of ineffective assistance of counsel. See Grosvenor v. State, 874 So. 2d 1176 (Fla. 2004). The first prong is identical to the deficient performance prong found in Strickland. Id. at 1179 ; see Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The defendant must specifically identify acts or omissions of counsel that were outside the wide range of reasonably competent performance under prevailing professional norms. Grosvenor, 874 So. 2d at 1179 ; see Hill, 474 U.S. at 58-59, 106 S.Ct. 366. The second prong requires a defendant to demonstrate "a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial." Grosvenor, 874 So. 2d at 1181. The defendant does not have to show that he actually would have prevailed at trial, but the strength of the state's case against the defendant must be considered in evaluating whether the defendant would have gone to trial if he had received adequate advice from his counsel. Id. "Counsel's effectiveness is determined according to the totality of the circumstances." Id. The relevant inquiry for purposes of Strickland's prejudice analysis is whether the outcome of the plea proceedings would have been different had competent assistance of counsel been provided. Id.
Our review of the trial court's determination as to whether counsel's performance was deficient and whether the deficiency prejudiced the defendant presents a mixed question of law and fact. We review de novo the trial court's legal conclusions, while giving deference to the trial court's factual findings. Stephens v. State, 748 So. 2d 1028, 1033 (Fla. 1999). Our analysis of Madison's claim is guided by a strong presumption that trial counsel's performance was not ineffective. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. "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. at 689, 104 S.Ct. 2052. Trial counsel's "strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct." Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000).
In Ground Four, Madison argued that his trial counsel rendered ineffective assistance of counsel by failing to research, advise him of, file, and litigate a dispositive motion to suppress. Accordingly, he claims that he pled without knowing about a potential, dispositive motion to suppress.
At the evidentiary hearing, the postconviction court heard from Orlando Police Officer Larry Kamphaus; his supervisor, Lieutenant Tami Edwards; trial counsel Tonya Oliver and Madison. Officer Kamphaus testified that he was dispatched to investigate a complaint of a black male, wearing a black shirt and black pants, with a gun in a high crime neighborhood. Officer Kamphaus responded and saw Madison, who fit the description, about two blocks from the described location. After getting out of his patrol car, he drew his firearm and told Madison to stop. He asked Madison if he had any weapons. Madison admitted that he had a kitchen knife in his pocket. The officer retrieved a three-to-four-inch paring knife and arrested him for carrying a concealed weapon. Officer Kamphaus searched the handcuffed Madison, discovering that he had a pellet gun, gloves and a nylon skull cap in his possession. Madison then pulled away from the officer and ran, despite commands to stop. Officer Kamphaus gave chase, tased Madison, and took him into custody. Officer Kamphaus confirmed that during this encounter Madison was not free to leave. Officer Kamphaus also admitted that he never met with the complainant and did not know if the 911 caller provided the dispatcher with any identifying information. He did say that in the neighborhood where this occurred, "many times ... our complainants choose to remain confidential." Lieutenant Edwards testified that she could not remember if she met with the 911 caller. When she responded to the scene, Officer Kamphaus had already handcuffed Madison and was searching him. Madison then ran off until Officer Kamphaus tased him. She could not recall speaking with Attorney Oliver about the case.
Attorney Oliver testified that she was an experienced criminal defense attorney. She was familiar with motions to suppress and Terry stops and what a police officer is permitted to do in those situations. Attorney Oliver recalled reviewing the arrest affidavit for the new misdemeanor charges, which formed the basis of the new law violations of Madison's probation. She did not recall reviewing any other reports or the 911 call. She did not interview or depose any witnesses other than speaking with Madison. Nonetheless, Attorney Oliver testified that based on her training, education, experience, research, the allegations in the police report, and Madison's statements, she believed that the case would be difficult to contest and that the facts did not warrant filing a motion to suppress. While Attorney Oliver had some of her notes from Madison's violation of probation case, she did not have any research relating to a motion to suppress. Nor could she recall why she concluded that a motion to suppress would not have been successful. Attorney Oliver did remember that she met with Madison and advised him that his best option was to resolve the charges and negotiate a sentence. She indicated that even if she had filed a motion to suppress, it would have been dispositive only as to the new law violations and not the technical violations, and that Madison would still have lost the six-year youthful offender cap.
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Madison testified and explained that when the officer approached him, he was wearing his Burger King uniform, consisting of a black Burger King shirt, black pants, and black shoes. When the police car pulled up, the officer pulled out a gun, and said, "Don't move. Freeze." With his gun drawn, the officer walked up and handcuffed him. He did not feel free to leave. The officer asked if he had any weapons, and he admitted that he had a paring knife in his back pocket.
Madison testified that he met with Attorney Oliver only once, after he had been in jail for about two months. At that meeting, Attorney Oliver only discussed the maximum possible sentence in the violation of probation case, advising him that he was facing a possible life sentence. According to Madison, Attorney Oliver never discussed a motion to suppress or defense strategies with him, and never asked about the nature of the stop, the knife or pellet gun. Instead, when he tried to discuss the facts, she told him that they were not relevant. He recalled that she stated that he had no defense, and that the twelve-year plea deal was his best option. As a result, Madison believed he had only two choices—accept the twelve-year plea offer or face life in prison as "she told me there was no defense." Madison said that he understood that the State could have revoked the twelve-year offer if he filed a motion to suppress, but repeatedly asserted he would have taken the risk because he believed that if the new law violations were dismissed based on a successful motion to suppress, then, as a youthful offender, he could only receive a six-year maximum sentence for the technical violations.
The postconviction court found Attorney Oliver did not provide ineffective assistance. It concluded that she considered filing a motion to suppress but determined that there was no basis for one and that it was in Madison's best interest to enter a plea.
DEFICIENT PERFORMANCE
An attorney's failure to move to suppress damaging evidence due to a lack of factual investigation or legal research can constitute deficient performance under Strickland. See MacKinnon v. State, 39 So. 3d 537, 538 (Fla. 5th DCA 2010) ("A trial attorney's failure to investigate a factual defense or a defense relying on the suppression of evidence, which results in the entry of an ill-advised plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction." (quoting Williams v. State, 717 So. 2d 1066, 1066 (Fla. 2d DCA 1998) )); see also Spencer v. State, 889 So. 2d 868, 870 (Fla. 2d DCA 2004) ("An allegation that trial counsel provided ineffective assistance by failing to file a motion to suppress is a legally sufficient claim, which is not waived by entry of a plea."). However, the Supreme Court has stressed the importance of adhering to Strickland's deferential standard "when reviewing the choices an attorney made at the plea bargain stage" because a plea bargain is a result of complex negotiations requiring defense counsel to make strategic decisions that include both risk and opportunity. Premo v. Moore, 562 U.S. 115, 124, 125, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011).
Clearly, a Terry stop occurred when Officer Kamphaus told Madison to stop at gunpoint and handcuffed him. Under the Fourth Amendment, a person is seized when an officer, "by means of physical force or show of authority," restrains a citizen's liberty. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). To make a lawful Terry stop and not violate a citizen's Fourth Amendment rights, the officer must possess a well-founded, articulable, and reasonable suspicion of criminal activity. See § 901.151(2), Fla. Stat. (2010) ; Popple v. State, 626 So. 2d 185, 186 (Fla. 1993) ; see also United States v. Place, 462 U.S. 696, 702, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (holding that police may "make a forcible stop of a person when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity").
Suspicion of criminal activity may arise from citizen informants' tips, "but whether tips can provide reasonable suspicion depends upon both the quantity and quality of the information." Regalado v. State, 25 So. 3d 600, 603 (Fla. 4th DCA 2009). "Tips from known reliable informants, such as an identifiable citizen who observes criminal conduct and reports it, along with his own identity to the police, will almost invariably be found sufficient to justify police action." J.L. v. State, 727 So. 2d 204, 206 (Fla. 1998), aff'd sub nom. Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). On the other hand, "an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity ...." Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Hence, because an anonymous caller's basis of knowledge and veracity are typically unknown, to constitute reasonable suspicion following an anonymous tip, the officer must develop specific information sufficiently corroborating the tip. See State v. Evans, 692 So. 2d 216, 218 (Fla. 4th DCA 1997) ; see also State v. Maynard, 783 So. 2d 226, 230 (Fla. 2001) (applying analysis of Evans ). Upon receipt of an anonymous call that someone has publicly displayed a firearm, officers can respond and approach the individual to further investigate the allegation and the circumstances. But, "when investigating an anonymous tip, officers who are unable to independently corroborate criminal activity may not initiate a gunpoint seizure based upon confirmation of only innocent details—such as a physical description—with absolutely no observation or development of any suspicious behavior." Baptiste v. State, 995 So. 2d 285, 301 (Fla. 2008). In the instant case, as in Baptiste, the officer could have approached Madison and engaged him in conversation in an attempt to investigate the tip, and this conduct would not have violated the Fourth Amendment. Id.
When Officer Kamphaus encountered Madison, he did not observe a firearm or bulge in Madison's clothing. Neither did he observe any conduct that constituted a crime or impending crime, and he did not ask Madison any questions before ordering him to stop, at gunpoint, and handcuffing him. Based on the evidence presented at the evidentiary hearing, contrary to Attorney Oliver's testimony that there was no basis for the motion, there is a reasonable probability that Madison would have prevailed if a motion to suppress had been filed. See Guzman-Aviles v. State, 226 So. 3d 339, 343-44 (Fla. 5th DCA 2017) (explaining that defendant, seeking postconviction relief following plea based upon ineffective assistance of counsel in not pursuing or misadvising about defense, is not required to allege and prove that he or she would have prevailed at trial on defense; however, viability of defense and strength of state's case are both relevant to analyzing credibility of defendant's assertion that defendant would have insisted on going to trial); see also Grosvenor, 874 So. 2d at 1181 ("Counsel's effectiveness is determined according to the totality of the circumstances." (citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052 )).
The anonymous 911 call, combined with Madison's mere presence in the general location, did not constitute reasonable suspicion to justify a stop at gunpoint. See, e.g., Baptiste, 995 So. 2d 285 (holding anonymous 911 call describing person and alleging person had waved firearm in public not sufficiently reliable to provide reasonable suspicion for investigative stop of person matching the description); Felton v. State, 753 So. 2d 640 (Fla. 4th DCA 2000) (holding that uncorroborated anonymous tip that defendant had gun did not give rise to reasonable suspicion to conduct investigatory stop); Butts v. State, 644 So. 2d 605, 605-06 (Fla. 1st DCA 1994) (finding anonymous tip deficient where it stated only that black male with grey beard, wearing black cap, grey pants and black jacket was riding bicycle, had gun in his pocket, and was possibly selling drugs; tip contained no predictions regarding defendant's future movements or activities); Strong v. State, 495 So. 2d 191 (Fla. 2d DCA 1986) (holding that anonymous tip that there was black male wearing dark clothing with handgun at particular convenience store did not provide sufficient justification for officer's stop and frisk of black male sitting on curb in front of store, which resulted in discovery of small handgun in defendant's rear pocket). Thus, had Attorney Oliver challenged the stop in a motion to suppress, there was a reasonable probability that the challenge would have been successful in obtaining the dismissal of the carrying a concealed weapon (a knife) and carrying a simulated firearm (pellet gun) charges. And if the stop was unlawful, the charge of resisting an officer without violence would also have been dismissed. See In re T.M.M., 560 So. 2d 805, 807 (Fla. 4th DCA 1990) (explaining that proof of lawfulness of arrest is essential element of resisting arrest without violence; if arrest is not lawful, then defendant cannot be guilty of resisting it); Johnson v. State, 395 So. 2d 594 (Fla. 2d DCA 1981) (holding that as defendant's arrest was unlawful, prosecution against defendant for resisting arrest without violence also failed).
PREJUDICE
"A defendant who accepts a plea bargain on counsel's advice does not necessarily suffer prejudice when his counsel fails to seek suppression of evidence, even if it would be reversible error for the court to admit that evidence." Premo, 562 U.S. at 129, 131 S.Ct. 733. In determining whether a defendant was prejudiced, a court must objectively consider the totality of the circumstances at the time of the plea, including such factors as "whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial." Grosvenor, 874 So. 2d at 1181-82 (quoting Hill, 474 U.S. at 59-60, 106 S.Ct. 366 ). This inquiry "demands a case-by-case examination of the totality of the evidence and focuses on a defendant's decision-making." Koroly v. State, 257 So. 3d 1096, 1103 (Fla. 1st DCA 2018) (quotations omitted); see Grosvenor, 874 So. 2d at 1182. The evidence must support the defendant's claim that there is a "reasonable probability" that he would not have entered a plea absent counsel's alleged deficiencies. Koroly, 257 So. 3d at 1103.
Here, the totality of the circumstances and consideration of the Grosvenor factors support a finding of prejudice. First, Madison had a viable motion to suppress the evidence relating to all of the substantive new law violations against him. Grosvenor, 874 So. 2d at 1181 ("The merits of any defense ... is relevant to the credibility of the defendant's assertion that he would have insisted on going to trial. If the defense was meritless, the defendant's claim carries much less weight."). Second, at the time that Madison entered the plea, he knew that he faced a maximum life sentence in prison, but the evidence presented at the evidentiary hearing shows there was a reasonable probability that the motion to suppress would have been granted and the evidence the State needed to prove the substantive violations would have been suppressed. If the three new law violations were dismissed, only the technical violations would have remained. The maximum sentence Madison could have received as a youthful offender for the technical violations under section 958.14, Florida Statutes (2010), was six years in prison. See Eustache v. State, 248 So. 3d 1097, 1100-01 (Fla. 2018) (reiterating that section 958.14 clearly and unambiguously requires sentencing within six-year cap for youthful offenders who commit technical probationary or community control violations). Instead, Attorney Oliver counseled Madison to plea to all the probation violations in exchange for a twelve-year prison sentence, double what he would have faced had the motion to suppress been granted. Based on the totality of the circumstances surrounding Madison's plea, there is an objectively reasonable probability that if he had known that he had a dispositive motion to suppress his substantive violations, he would not have entered a plea. See Hill, 474 U.S. at 60, 106 S.Ct. 366 (emphasizing that determination should be made objectively, without regard for "idiosyncrasies of the particular decisionmaker").
Section 958.14, Florida Statutes (2010), provides:
A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s. 948.06. However, no youthful offender shall be committed to the custody of the department for a substantive violation for a period longer than the maximum sentence for the offense for which he or she was found guilty, with credit for time served while incarcerated, or for a technical or nonsubstantive violation for a period longer than 6 years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served while incarcerated.
The evidence at the hearing supported Madison's claim for relief. Ground Four of Madison's second amended rule 3.850 motion should have been granted. We reverse the order on appeal, and remand with directions to grant Ground Four of Madison's second amended rule 3.850 motion, set aside his plea and the order revoking his probation, and remand for further proceedings.
REVERSED and REMANDED.
LAMBERT and SASSO, JJ., concur.