Campbell v. State

• Decision Date: 06 June 2014
• Docket Number: No. 2D13–3307.,2D13–3307.
• Citation: 139 So.3d 490
• Parties: Tecoy Marquis CAMPBELL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

139 So.3d 490

Tecoy Marquis CAMPBELL, Appellant,

v.STATE of Florida, Appellee.

No. 2D13–3307.

District Court of Appeal of Florida,

Second District.

June 6, 2014.

Tecoy Marquis Campbell, pro se.

PER CURIAM.

Tecoy Marquis Campbell appeals the order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part, reverse in part, and remand with directions.

Campbell entered an open plea of no contest to sale of a controlled substance and to possession of a controlled substance, and the trial court sentenced him as a habitual felony offender (HFO) to fifteen years' imprisonment for the sale count to be served concurrently with five years' imprisonment for the possession count. After this court affirmed his convictions and sentences, Campbell filed the postconviction motion at issue in this appeal.

In order to establish a claim of ineffective assistance of counsel during the plea process, a postconviction movant must show that counsel's performance was deficient and that there is a reasonable probability that, but for counsel's errors, the movant would not have entered a plea but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58–59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

In ground one of his rule 3.850 motion, Campbell argued that his plea was involuntary because the trial court never informed him that it constituted a waiver of his right to remain silent, to have compulsory process for obtaining witnesses on his behalf, to confront his accusers, and to appeal all matters relating to the judgment, including the issue of guilt or innocence. SeeFla. R. Crim. P. 3.172(c)(3), (4). Campbell noted that the trial court provided him with a waiver of rights form and asked him if he understood the rights he was waiving but that it never determined whether the form had been read and explained to him or if he had the requisite education level or mental capacity to understand the form. See Townsend v. State, 927 So.2d 1064, 1066 (Fla. 4th DCA 2006) (“ ‘[A] judge using a preprinted rights form as a part of a plea colloquy must orally verify that the defendant has intelligently consumed the written information contained within it.’ ” (citation omitted) (quoting Thornton v. State, 747 So.2d 439, 441 (Fla. 4th DCA 1999))).

The postconviction court failed to address this claim. However, because Campbell did not allege how the trial court's failures prejudiced him, seeFla. R. Crim. P. 3.172(j) (providing that failure to follow any of the procedures of rule 3.172 does not render a plea void absent a showing of prejudice), we reverse and remand for the postconviction court to strike this claim and provide Campbell sixty days to amend it to state a facially sufficient claim for relief, if he can do so in good faith. SeeFla. R. Crim. P. 3.850(f)(2); see also Spera v. State, 971 So.2d 754, 761 (Fla.2007).

In ground two of his motion, Campbell argued that trial counsel was ineffective for failing to apprise him that he had a right to confront witnesses against him and a right to review of the judgment but that he was giving up those rights by entering a plea. Campbell asserted that he would not have waived these rights if he had been advised of them and afforded an opportunity to depose the witnesses against him. He argued that trial counsel's failure rendered his plea involuntary.

In denying this claim, the postconviction court found that the acknowledgment and waiver of rights form it attached to its order showed that Campbell understood that by entering a plea, he was waiving his right to a trial, including the right to confront and cross-examine witnesses. But a waiver of rights form can only refute a defendant's claim of involuntary plea if the trial court conducted a proper plea colloquy and determined that the defendant understood the form. See Townsend, 927 So.2d at 1066 (rejecting the State's argument that the signed acknowledgement of plea and waiver of rights form showed that the defendant had notice of the terms of the plea agreement because the trial court failed to determine if the defendant could read and understand the form or if the form had been explained to him). In this case, the transcript of the plea hearing the postconviction court attached to its order shows that the trial court failed to make many of the inquiries required by rule 3.172(c). See Koenig v. State, 597 So.2d 256, 258 (Fla.1992) (noting that “[b]ecause a guilty, or no contest, plea has serious consequences for the accused, the taking of a plea ‘demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence’ ” (quoting Boykin v. Alabama, 395 U.S. 238, 243–44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969))). Nevertheless, this claim is facially insufficient because Campbell did not allege that he was prejudiced by counsel's failure to advise him of all of the rights he was waiving. See Cousino v. State, 770 So.2d 1258, 1260 (Fla. 4th DCA 2000) (noting that to establish prejudice from counsel's ineffectiveness during the plea process, a postconviction movant must allege that there is a reasonable probability that but for counsel's ineffectiveness, he would have insisted on going to trial). Accordingly, we reverse and remand for the postconviction court to strike this claim and provide Campbell sixty days to amend it to state a facially sufficient claim for relief, if he can do so in good faith. SeeFla. R. Crim. P. 3.850(f)(2); see also Spera, 971 So.2d at 761.

In ground three of his motion, Campbell argued that his plea was involuntary because the trial court failed to disclose how long the maximum sentence would be and to advise him that he could receive any sentence up to the maximum allowed by law. SeeFla. R. Crim. P. 3.172(c)(1) (providing that the trial court must determine that the defendant understands “the nature of the charge to which the plea is offered, the maximum possible penalty, and any mandatory minimum penalty provided by law”). Campbell asserted that if he had been properly apprised of the maximum penalty, he would not have entered a plea but would have insisted on going to trial. This claim is facially sufficient.

In denying this claim, the postconviction court found that the acknowledgment and waiver of rights form reflects that Campbell understood that he could face a maximum sentence of fifteen years plus five years and that he was entering an open plea. Again, the postconviction court could not rely on the waiver of rights form because the trial court failed to conduct a proper plea colloquy and determine whether Campbell understood the form. See Townsend, 927 So.2d at 1066. Because this claim is not conclusively refuted by the attachments to the postconviction court's order, we reverse and remand for the court to attach portions of the record that conclusively refute this claim or to hold an evidentiary hearing.

In ground four of his motion, Campbell argued that his plea was involuntary because the trial court failed to inform him of the maximum possible habitual offender penalty and to discern whether he understood that the HFO designation could cause him to be ineligible for certain programs affecting early release. See Ashley v. State, 614 So.2d 486, 490 n. 8 (Fla.1993) (holding that a trial court should confirm that a defendant is personally aware of his eligibility for habitualization, the maximum habitual offender term, and the fact that habitualization may affect the possibility of early release); Marckman v. State, 997 So.2d 1275, 1276 (Fla. 2d DCA 2009) (“It is well-settled that a trial court must confirm that the defendant understands the consequences of an HFO sentence.”). Campbell noted that the judgment and sentence fail to reflect the trial court's oral pronouncement that he was sentenced as a HFO. He asserted that the only option under these circumstances is to allow him to withdraw his plea.

In denying this claim, the postconviction court found that the plea hearing transcript showed that the trial court informed Campbell that he qualified as a HFO, the State specified the resulting enhancement, Campbell did not object, and defense counsel stated that he had no objection to the introduction of evidence of Campbell's prior convictions, agreeing that they were accurate. While the court's finding fails to address Campbell's allegation that he was not advised of the consequences of habitualization, Campbell failed to allege how he was prejudiced by this failure. Accordingly, we reverse and remand for the postconviction court to strike this claim and provide Campbell sixty days to amend it to state a facially sufficient claim for relief, if he can do so in good faith. SeeFla. R. Crim. P. 3.850(f)(2); see also Spera, 971 So.2d at 761.

The postconviction court also failed to address Campbell's assertion that the written judgment fails to reflect the trial court's oral pronouncement that it sentenced him as a HFO. On remand, the postconviction court shall address this claim and correct the judgment if necessary. See Nelson v. State, 1 So.3d 345, 345 (Fla. 1st DCA 2009) (“A written sentence must comport with the sentence that was orally pronounced, and when the two are inconsistent, the oral pronouncement controls.”); see also Rivera v. State, 117 So.3d 449, 449 (Fla. 2d DCA 2013) (“Because the written sentences do not comport with the trial court's oral pronouncement, we must remand for correction of the written sentences to reflect the oral pronouncement.”).

In ground five of his motion, Campbell argued that trial counsel was ineffective for advising him to enter an open plea and reject the State's first offer of five to seven years' imprisonment in exchange for not disclosing the identity of the confidential informant (CI). He asserted that counsel misled him and his mother to believe that he faced a maximum of five...