Ciambrone v. State

• Decision Date: 11 December 2013
• Docket Number: No. 2D13–599.,2D13–599.
• Citation: 128 So.3d 227
• Parties: Heather CIAMBRONE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

128 So.3d 227

Heather CIAMBRONE, Appellant,

v.STATE of Florida, Appellee.

No. 2D13–599.

District Court of Appeal of Florida, Second District.

Dec. 11, 2013.

Heather Ciambrone, pro se.

PER CURIAM.

Heather Ciambrone appeals the circuit court's summary denial of her motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Although Ciambrone raised ten claims of ineffective assistance of counsel, we find no merit in three of those claims, the denial of which we affirm without discussion. We reverse the summary denial of the seven remaining claims and remand to the postconviction court for reconsideration of those claims.

Ciambrone was charged in July 1995 with the first-degree murder of her adopted son, Lucas. She was found incompetent to proceed until March 2000. In 2001, she entered a plea of no contest to second-degree murder and was sentenced to fifty-five years in prison. In 2006, this court reversed the denial of Ciambrone's rule 3.850 motion, concluding her plea was involuntary due to her counsel's incorrect advice regarding the amount of time she could expect to serve in prison. Ciambrone v. State, 938 So.2d 550 (Fla. 2d DCA 2006). Ciambrone withdrew her plea and was tried by jury in May 2007. She was found guilty of first-degree felony murder, with the underlying felony of aggravated child abuse, and was sentenced to life without the possibility of parole. We affirmed Ciambrone's conviction and sentence on direct appeal. Ciambrone v. State, 38 So.3d 139 (Fla. 2d DCA 2010) (table).

Ciambrone filed a motion under rule 3.800(a), arguing the State alleged the murder was a continuing crime that commenced with the first acts of aggravated child abuse in 1993, so she was entitled to be sentenced to life without the possibility of parole for twenty-five years, the sentence that applied in 1993. We affirmed the postconviction court's rejection of her argument in Ciambrone v. State, 93 So.3d 1176 (Fla. 2d DCA 2012).

In this proceeding, Ciambrone claims she was denied her constitutional right to the effective assistance of counsel; we address each of her claims in turn.

In order for a defendant to prevail on a claim of ineffective assistance of counsel, a defendant must show deficient performance—that counsel's representation fell below an objective standard of reasonableness; and prejudice—a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have differed. Strickland v. Washington, 466 U.S. 668, 690–91, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Regarding the reasonableness of representation, the United States Supreme Court has explained that a decision to focus on one potentially reasonable trial strategy is justified by a tactical decision only after a trial attorney conducts a thorough investigation. Sears v. Upton, 561 U.S. ––––, 130 S.Ct. 3259, 3265, 177 L.Ed.2d 1025 (2010) (per curiam). In assessing prejudice, courts must consider the totality of the evidence presented in postconviction, along with the evidence adduced at trial, to determine whether there is a reasonable probability that the outcome would have differed. Id. at 3266–67.

When, as in this case, a rule 3.850 motion is summarily denied without an evidentiary hearing, we must accept as true the defendant's factual allegations that are not conclusively refuted by the record. See Peede v. State, 748 So.2d 253, 257 (Fla.1999) (citing Lightbourne v. Dugger, 549 So.2d 1364, 1365 (Fla.1989)). In reviewing the postconviction court's summary denial of Ciambrone's allegations regarding trial counsel's investigation and preparation for trial, we are constrained by the limited record before us, namely trial counsel's concession less than a month before trial that “I will not be able to provide even minimally competent representation to Ms. Ciambrone, should her trial begin on May 7.”

In Ground I, Ciambrone alleged her attorney was ineffective for announcing he was ready for trial on January 17, 2007, before he had adequately reviewed the sixty boxes of documents that made up her case file and investigated the witnesses referenced therein. The record before us shows that Ciambrone's attorney stated he would be ready for trial in March 2007 and objected to the State's motion to continue the trial on March 23, 2007. But on April 5, 2007, Ciambrone's attorney moved to continue the trial, which was set for May 7, 2007. He argued he was representing a man in a capital trial in April and “I will not be able to provide even minimally competent representation to Ms. Ciambrone, should her trial begin on May 7.” Ciambrone cites several instances in the record, after trial counsel announced he was ready for trial, where both trial counsel and the State question trial counsel's ability to review the voluminous documents and prepare for trial in such limited time. Ciambrone further alleged her attorney's decision to announce he was ready for trial before adequately reviewing her file undermined confidence in the outcome of her trial because the trial court used it as a basis to deny counsel's later motion for a continuance. As a result, trial counsel was not prepared and did not present exculpatory evidence.

The postconviction court denied this ground: “the record reflects that defense counsel had, in fact, reviewed the case file, met with Defendant, argued with pretrial motions, and subpoenaed several witnesses.” In support of this conclusion, the court referenced pretrial motion hearings attached to the State's response and attached trial counsel's motion for a continuance, in which he stated that he “made every possible effort” to be ready for trial by March 26, 2007, but that due to the intervening capital trial, the “complex to the point of overwhelming” nature of the case, and the fact that the State's expert had not yet provided a report, he could not effectively represent Ciambrone at a May 7, 2007, trial. The court also attached the transcript of the hearing on the motion to continue, in which defense counsel seemingly argues he would have been ready in March, but the intervening continuance, during which a trial date was set on a capital case and the State procured an expert who had not yet issued a report, changed the circumstances.

These attachments do not conclusively refute Ciambrone's allegations that her attorney announced he was ready for trial before he was, in fact, ready; that State witnesses were not effectively challenged; and that exculpatory evidence was not presented as a result. The attachments show counsel provided assistance, but the attachments do not indicate whether the assistance was reasonably effective, given the facts of this particular case. See Wiggins v. Smith, 539 U.S. 510, 522–23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (explaining that to determine whether a tactical decision is reasonable, the focus should be whether the investigation supporting counsel's decision was itself reasonable); see also Sears, 130 S.Ct. at 3265 (explaining that although a decision might be reasonable in the abstract, it does not obviate the need to analyze whether counsel's failure to conduct an adequate investigation before arriving at a particular decision prejudiced the defendant). This court has repeatedly held that an evaluation of strategic decisions generally requires an evidentiary hearing. See McCann v. State, 854 So.2d 788, 790–92 (Fla. 2d DCA 2003) (reversing summary denial where the trial court did not fully address this claim and it was not refuted by attachments to the trial court's order); Duncan v. State, 776 So.2d 287, 290 n. 2 (Fla. 2d DCA 2000) (“We caution the trial court that a conclusion that counsel's failure to object was a conscious tactical decision is rarely appropriate for summary denial but should instead be made after an evidentiary hearing.” (citing Comfort v. State, 597 So.2d 944 (Fla. 2d DCA 1992))). Based on the record before us, this case is no exception.

Similarly, in Ground II, Ciambrone alleged that trial counsel was ineffective for objecting to the State's motion for a continuance even though he later admitted he was not ready for trial. As a result, many of the potential witnesses referenced within the sixty boxes of documents that made up her case file did not testify. As with the previous claim, the court did not attach portions of the record which conclusivelyrefute Ciambrone's claim, so we cannot affirm the court's summary denial of this claim. See Chambers v. State, 613 So.2d 118 (Fla. 2d DCA 1993) (reversing summary denial of ineffective assistance of counsel claims where the record was insufficient to support the trial court's findings).

Ciambrone alleged in Ground III that trial counsel was ineffective for failing to file a motion to preclude the State from asserting a theory of guilt in her trial that was inconsistent with the theory of guilt it argued in Joseph Ciambrone's trial.¹ Ciambrone alleged that the State argued in Joseph's trial that he inflicted the blunt head trauma that killed her son but then argued at her trial that she inflicted the fatal blow. The court denied this ground, citing the transcript from Mr. Ciambrone's 1997 trial: “Although the State made a fleeting reference that Mr. Ciambrone ‘may have struck the final blow,’ the State made it clear that ‘it doesn't matter.’ ” The court then found this argument permissible under State v. Gates, 826 So.2d 1064 (Fla. 2d DCA 2002), because “the State was not inconsistent when it argued in Defendant's trial that she had committed the final blow.”

Joseph Ciambrone's 1997 trial transcript does not appear to have been properly made part of the official court record in Heather Ciambrone's case. Based on the limited record before us, it appears that the postconviction court could not rely on the transcript of Joseph Ciambrone's trial to summarily deny relief. See Cintron v. State, 504 So.2d 795, 796 (Fla. 2d DCA 1987) (holding the phrase “files...