Alcorn v. State

• Decision Date: 13 June 2013
• Docket Number: No. SC11–1322.,SC11–1322.
• Parties: Tommy Lee ALCORN, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

121 So.3d 419

Tommy Lee ALCORN, Petitioner,

v.STATE of Florida, Respondent.

No. SC11–1322.

Supreme Court of Florida.

June 13, 2013.

Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, FL, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, FL, Celia A. Terenzio, Bureau Chief, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, FL, for Respondent.

PARIENTE, J.

This case involves ineffective assistance of counsel claims arising out of counsel's failure to correctly inform the defendant of the maximum penalty he faced before rejecting a plea offer. Such claims are rooted in the Sixth Amendment to the United States Constitution, which provides that the accused shall have the right to effective assistance of counsel in all criminal prosecutions. Missouri v. Frye, ––– U.S. ––––, 132 S.Ct. 1399, 1404, 182 L.Ed.2d 379 (2012). The United States Supreme Court has recognized that the plea bargaining stage is a critical one, at which defendants are constitutionally entitled to effective counsel: “The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.” Id. at 1407.

Here, Alcorn's counsel failed to correctly inform him of the maximum penalty that he faced before rejecting a plea offer, and Alcorn asserts a Sixth Amendment ineffective assistance of counsel claim on that basis. To prevail, Alcorn must show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced the defense. There is no dispute that the failure in this case constitutes deficient performance. Accordingly, the question centers on how to apply the prejudice prong.

Alcorn rejected a twelve-year plea offer upon being incorrectly advised that his maximum sentence was thirty years, when in fact he faced a maximum sentence of life imprisonment because he qualified as a habitual felony offender (HFO). In the decision below, the Fourth District concluded that Alcorn could not show prejudice because, after trial, he ultimately received a thirty-year sentence—the same sentence as what he was incorrectly advised. Alcorn v. State, 82 So.3d 875, 879 (Fla. 4th DCA 2011). The Fourth District then certified conflict with the decisions of the Fifth District in Lewis v. State, 751 So.2d 715 (Fla. 5th DCA 2000), and the Second District in Revell v. State, 989 So.2d 751 (Fla. 2d DCA 2008).¹See Alcorn, 82 So.3d at 879.

Subsequent to the Fourth District's decision in Alcorn, the United States Supreme Court issued two decisions concerning ineffective assistance of counsel claims in which the defendant rejected a plea offer based on misadvice. See Frye, ––– U.S. ––––, 132 S.Ct. 1399, 182 L.Ed.2d 379;Lafler v. Cooper, ––– U.S. ––––, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).² In light of Frye and Lafler, we recede from this Court's decisions in Cottle v. State, 733 So.2d 963 (Fla.1999), and Morgan v. State, 991 So.2d 835 (Fla.2008), with respect to what the defendant must show in order to demonstrate prejudice. We hold that in order to show prejudice, the defendant must demonstrate a reasonable probability, defined as a probability sufficient to undermine confidence in the outcome, that (1) he or she would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court would have accepted the offer, and (4) the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.

For the reasons set forth below, we quash the Fourth District's decision in Alcorn because the Fourth District incorrectly analyzed the prejudice prong, but we also disapprove the conflict cases Revell and Lewis because their analysis is inconsistent with the United States Supreme Court's decisions in Frye and Lafler. In addition, we recede from Morgan and Cottle regarding the requirements for demonstrating prejudice for claims of ineffective assistance of counsel when a defendant does not accept a plea offer and instead proceeds to trial.

FACTS AND BACKGROUND

In 2004, the State charged Alcorn with two drug-related offenses: (1) sale of cocaine within 1,000 feet of a church (Count I), a first-degree felony punishable by a maximum thirty-year sentence, see§ 893.13(1)(e) 1., Fla. Stat. (2004); and (2) possession of cocaine (Count II), a third-degree felony punishable by a maximum five-year sentence, see893.13(6)(a), Fla. Stat. (2004). However, because Alcorn qualified for HFO sentencing enhancement under section 775.084(1)(a), Florida Statutes (2004), the maximum sentence for Count I as charged was life imprisonment. Prior to trial, the State offered Alcorn a twelve-year sentence in exchange for a guilty plea, operating under the mistaken belief that Alcorn did not qualify for HFO sentencing. Defense counsel, also mistakenly believing that Alcorn did not qualify for HFO sentencing, advised Alcorn that the maximum sentence he faced for Count I as charged was thirty years' imprisonment. The State's plea offer was not accepted, and Alcorn's case proceeded to trial under the assumption that Alcorn did not qualify for HFO sentencing.

At trial, the State was unable to prove that the alleged sale had occurred within 1,000 feet of a church. Consequently, the State stipulated to Alcorn's acquittal for that element of Count I and agreed to proceed on the lesser offense of simple sale of cocaine—a second-degree felony punishable by a maximum fifteen-year sentence, see893.13(1)(a) 1., Fla. Stat. (2004). The jury found Alcorn guilty of this lesser offense, as well as Count II as originally charged (possession of cocaine).

After trial but prior to sentencing, the State discovered that Alcorn was in fact eligible for HFO classification and filed a written notice of intent to seek an enhanced penalty based on Alcorn's HFO status. The HFO enhancement subjected Alcorn to a maximum sentence of thirty years' imprisonment for the sale of cocaine conviction. At sentencing, the State established that Alcorn qualified as an HFO and thus requested that the judge sentence him accordingly. Before the trial court imposed a sentence, Alcorn voiced a concern that he had never been informed of the possibility that he could be classified as an HFO, and he also stated that he was unfamiliar with the State's plea offer. The trial court found that Alcorn in fact met the criteria for enhanced sentencing under the HFO statute, and the trial court sentenced him to an enhanced sentence of thirty years' imprisonment for the sale of cocaine conviction and to a sentence of five years' imprisonment for his possession of cocaine conviction, to run concurrently.

Alcorn moved for postconviction relief in 2008, arguing in pertinent part “two distinct claims of ineffective assistance of counsel: (1) that he was not advised of the [twelve-year] plea offer; and (2) that he was not advised of the maximum sentence he faced at the time of the plea offer.” Alcorn, 82 So.3d at 876. Alcorn alleged that he would have accepted the State's twelve-year offer had he been apprised of this information. Id.

The trial court conducted an evidentiary hearing to resolve these interrelated claims. The undisputed testimony from the evidentiary hearing revealed that neither trial counsel nor the prosecutor was aware that Alcorn qualified as an HFO prior to trial. Instead, both had erroneously concluded that Alcorn was ineligible for such a classification. Furthermore, before proceeding to trial, Alcorn was not advised that as an HFO, he could be sentenced to life in prison for the first-degree felony as charged in Count I.

The prosecutor who tried Alcorn's case testified that he recalled conveying two different plea offers to trial counsel via e-mail. The first offer was for a twenty-year sentence as an HFO, but then confusion arose over whether Alcorn was eligible for HFO classification. Operating under a mistaken belief that Alcorn did not qualify as an HFO, the prosecutor made a renewed offer of a twelve-year sentence in exchange for a guilty plea. It was only after trial that the prosecutor discovered that Alcorn in fact was eligible for classification as an HFO.

Alcorn's trial counsel testified that she did not have a specific recollection of conveying the twelve-year plea offer to Alcorn, but that she was certain of having done so based on her general practice and the circumstances, including the timing of events, the notes in the case file, and e-mails she had exchanged with the prosecutor. An e-mail chain introduced into evidence by the State—and corroborated by testimony from both the prosecutor and trial counsel—established that prior to trial, counsel requested a plea offer from the prosecutor, who initially offered a twenty-year sentence in response because Alcorn qualified as an HFO. Counsel wrote back, stating that Alcorn did not meet the statutory criteria for an HFO designation. In response, the prosecutor agreed that Alcorn did not qualify as an HFO and offered another plea with a twelve-year sentence instead. Counsel testified that had she known the possibility for HFO classification, she would have informed Alcorn that the maximum sentence he faced was life imprisonment, not thirty years.

Alcorn testified that before trial, he asked his counsel to obtain a plea offer from the State but never received any offers. Alcorn claimed that he only became aware the State had offered any type of plea at his sentencing hearing after trial. Although Alcorn discussed the possibility of HFO sentencing with counsel prior to trial, he believed at the time of trial that he did not qualify for such a classification....