Arteaga v. State

• Decision Date: 11 May 2018
• Docket Number: Case No. 2D15–2500
• Parties: Alvin ARTEAGA, DOC# H29353, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

246 So.3d 533

Alvin ARTEAGA, DOC# H29353, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D15–2500

District Court of Appeal of Florida, Second District.

Opinion filed May 11, 2018.

Ita M. Neymotin, Regional Counsel, Second District, and Stacy L. Sherman, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.

SALARIO, Judge.

Alvin Arteaga appeals from a final order denying his motion and amended motion for postconviction relief. Some of the claims in these motions were denied after an evidentiary hearing, while others were denied summarily. We affirm the denial of all but one claim without comment. We reverse the summary denial of a single claim for ineffective assistance of counsel based on trial counsel's conduct with respect to a jury instruction on the offense of manslaughter that allegedly omitted any discussion of justifiable and excusable homicide.

Following the death of his infant son, Mr. Arteaga was charged with and convicted of aggravated manslaughter by culpable negligence and aggravated neglect of a child. In his amended motion for postconviction relief, Mr. Arteaga raised a claim (claim four) in which he argued that his counsel was ineffective for failing to object to the omission of the justifiable and excusable homicide portions of the manslaughter jury instruction, which he asserted provided a viable defense in his case. The complete homicide instructions would have informed Mr. Arteaga's trial jury (1) that he could not be guilty of manslaughter if the homicide was either justifiable or excusable; (2) that a homicide is justifiable if "done while resisting an attempt to murder or commit a felony upon the defendant, or to commit a felony in any dwelling house in which the defendant was"; and (3) that a homicide is excusable if committed by accident or misfortune while doing a lawful act by lawful means, while in the heat of passion, or while in sudden combat under certain circumstances. See Fla. Std. Jury Instr. (Crim.) 7.1 (providing the justifiable and excusable homicide instruction to be read in all homicide cases), 7.7(a) (providing the justifiable and excusable homicide instruction to be read for manslaughter charges); see also §§ 782.02, .03, Fla. Stat. (2007).

In support of his claim, Mr. Arteaga alleged that his trial counsel "agreed to" the incomplete manslaughter instruction but that he was unaware that the instruction to be given was incomplete and further "was unaware that said instruction applied in this case." As a result, Mr. Arteaga alleges that he was denied a valid defense. The postconviction court summarily denied this claim because it concluded that the claim asserted only an alleged "trial court error" that must be raised "if at all, on direct appeal." The postconviction court's order neither considered whether the record conclusively refuted the claim nor attached any portions of the record that conclusively refuted it. See Fla. R. Crim. P. 3.850(f)(4) (requiring that trial court attach portions of record showing that any postconviction claim is conclusively refuted).

Mr. Arteaga argues on appeal that his motion set forth a facially sufficient claim of ineffective assistance of counsel that was not conclusively refuted by the record and, therefore, that the trial court erred in summarily denying it. We review the summary denial of a rule 3.850 motion de novo. Conley v. State, 226 So.3d 358, 360 (Fla. 2d DCA 2017). The summary denial of claim four was appropriate if the claim, after an opportunity to amend, was facially insufficient or conclusively refuted by the record. See Fla. R. Crim. P. 3.850(f)(3), (4) ; see also Peede v. State, 748 So.2d 253, 257 (Fla. 1999). The postconviction court did not conclude that the claim was conclusively refuted by the record, so the only issue here is whether it was facially sufficient. In answering that question, we accept Mr. Arteaga's allegations as true to the extent they are not refuted by the record. See Jennings v. State, 123 So.3d 1101, 1121 (Fla. 2013).¹

The postconviction court correctly stated that claims of trial court error are ordinarily remediable on direct appeal and thus not cognizable in a motion for postconviction relief under rule 3.850. See Bruno v. State, 807 So.2d 55, 63 (Fla. 2001) ; Sampson v. State, 845 So.2d 271, 272 (Fla. 2d DCA 2003). Conversely, it is also true that claims of ineffective assistance of counsel are generally unsuited for resolution in a direct appeal and should instead be brought in a motion for postconviction relief under rule 3.850. See, e.g., Cowan v. State, 725 So.2d 1153, 1154 (Fla. 2d DCA 1998). The manner in which the postconviction court applied these principles to this case is not clear. Its order may mean that it decided one or both of two things. It could have decided that as pleaded, Mr. Arteaga framed his claim concerning the incomplete manslaughter instruction as one of trial court error rather than as one of ineffective assistance of counsel. It could also have decided that regardless of how Mr. Arteaga framed his claim, the giving of an incomplete manslaughter instruction was a trial court error that could only have been raised on direct appeal. See Corzo v. State, 806 So.2d 642, 644 (Fla. 2d DCA 2002) (distinguishing between issues that might have been raised on direct appeal and those that might or might not also be raised as postconviction ineffective assistance claims). Either possibility is mistaken.

The possibility that Mr. Arteaga did not sufficiently plead the elements of a claim of ineffective assistance is not supported by a reading of his amended motion for postconviction relief. That motion may not be the most precise one ever drafted, but it plainly pleaded a claim of ineffective assistance related to the manslaughter instruction. It begins with an overarching discussion of the ineffective assistance requirements of deficient performance and prejudice and then recites four claims that it explicitly ties to those legal standards. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (identifying deficient performance and prejudice as the elements of a claim for ineffective assistance). The fourth claim—the one that concerns the manslaughter instruction—says in substance that Mr. Arteaga's counsel agreed to the incomplete instruction without knowing either what he was doing or that an incomplete instruction was being read and that the result was to deny him a valid defense. It is clear from the face of the motion, then, that Mr. Arteaga was pleading a claim that counsel's performance was deficient because he allowed the trial court to deliver a manslaughter instruction that did not contain the justifiable and excusable homicide portions of the manslaughter charge and that he was prejudiced as a result because he was denied jury consideration of a valid defense.

The possibility that Mr. Arteaga's claim could only be one of trial court error that could be raised only on direct appeal is not supported by the law. The applicable precedents, and those cited by Mr. Arteaga in his motion, recognize at least two situations in which a trial court's failure to instruct a jury on justifiable and excusable homicide in a case involving a charge of manslaughter may be remediable through a rule 3.850 postconviction motion based on ineffective assistance of counsel. The first is where no instruction is given and the evidence at trial would have supported a defense of justifiable or excusable homicide. The second is where no instruction is given and the defendant is actually convicted of manslaughter or a greater offense only one step removed from manslaughter (and an exception does not apply).

Analysis begins with our decisions in Spaziano v. State, 522 So.2d 525 (Fla. 2d DCA 1988), and Tobey v. State, 533 So.2d 1198 (Fla. 2d DCA 1988) (en banc). In Spaziano, a defendant convicted of first-degree murder appealed from the denial of a rule 3.850 motion alleging that his trial counsel was ineffective for failing to object to a manslaughter charge that did not include justifiable and excusable homicide. 522 So.2d at 525. The shooting occurred during a confrontation between the defendant and the victim. Id. at 526. There was evidence that the victim had threatened and harassed the defendant, that the victim had been using illegal drugs on the day of the shooting, and that the victim was known to carry a gun. Id. The defendant testified that he was extremely fearful at the time of the confrontation and that he shot the victim by accident, not knowing that the gun was loaded at the time. Id.

We reversed the denial of the defendant's rule 3.850 motion on two grounds. First, we held that "[b]ased upon the evidence at trial and the defense's theory of excusable homicide, it was incumbent on the trial court to give a full and accurate jury instruction on excusable homicide." Id. Second, we held that "when a manslaughter instruction is given, it is necessary that the complete definition of justifiable and excusable homicide be included as a part of the manslaughter instruction." Id. For that proposition, we relied on our decision in Alejo v. State, 483 So.2d 117, 118 (Fla. 2d DCA 1986), which held that because manslaughter is statutorily defined as a killing that is not justifiable or excusable homicide, instructions on justifiable and excusable homicide must be given as a part of any manslaughter charge. Id. On both scores, we held that the trial court's failure to give a complete manslaughter instruction at the defendant's trial was fundamental error in the sense that it could have been remedied on direct appeal even absent an objection in the trial court. Spaziano, 522 So.2d at 526–27.

From there, we concluded that trial counsel's failure to object to the instruction "was an...