Cottle v. State

• Decision Date: 08 April 1999
• Docket Number: No. 91,822.,91,822.
• Citation: 733 So.2d 963
• Parties: James L. COTTLE, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

733 So.2d 963

James L. COTTLE, Petitioner, v. STATE of Florida, Respondent.

No. 91,822.

Supreme Court of Florida.

April 8, 1999.

James T. Miller, Jacksonville, Florida, for Petitioner.

Robert A. Butterworth, Attorney General, and Rebecca Roark Wall, Daytona Beach, Florida, for Respondent.

PER CURIAM.

We have for review Cottle v. State, 700 So.2d 53 (Fla. 5th DCA 1997), based on direct and express conflict with the decisions¹ in Seymore v. State, 693 So.2d 647 (Fla. 1st DCA 1997); Hilligenn v. State, 660 So.2d 361 (Fla. 2d DCA 1995); and Abella v. State, 429 So.2d 774 (Fla. 3d DCA 1983). At issue is whether the Fifth District erred in holding that ineffective assistance claims pertaining to an unrelated plea offer must allege that the trial court would have accepted the terms of offer to be legally sufficient. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We quash Cottle and approve the opinions in Seymore, Hilligenn, and Abella.

PROCEEDINGS BELOW

Petitioner James L. Cottle was convicted for burglary of a motor vehicle and felony petit theft and sentenced to concurrent ten-year terms as a habitual felony offender for the two third-degree felonies. Cottle, 700 So.2d at 54. Adjudication as a habitual felony offender limits Cottle's eligibility for parole or early release. The State had previously offered to forego habitualization in return for a guilty plea by Cottle. At sentencing, the prosecution informed the court that Cottle had been given the opportunity to accept a plea offer and avoid habitual status. Id. However, Cottle immediately denied being apprised of the plea offer and asserted that he would have accepted the plea offer if given such an opportunity. Id. Counsel for Cottle disputed this claim and asserted the existence of a note indicating that he had notified petitioner of the offer, who refused it and maintained his innocence instead. The trial court rejected Cottle's attempt to avoid habitualization.

After an unsuccessful direct appeal, petitioner filed a rule 3.850 motion seeking relief on the grounds that his counsel had been ineffective in not conveying the State's plea offer to him. The trial court summarily denied relief, finding that the "files and records conclusively show that the defendant is entitled to no relief as to this allegation."² The Fifth District did not rule upon the reason given by the trial court for its summary denial but affirmed the order, holding that petitioner's claim was legally insufficient because it failed to allege the trial court would have approved of the terms of the plea offer. Cottle, 700 So.2d at 55.

INEFFECTIVE ASSISTANCE OF COUNSEL

The primary guide for ineffective assistance claims is the United States Supreme Court's hallmark opinion in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (adopted by this Court in Downs v. State, 453 So.2d 1102 (Fla.1984)). Strickland held that claimants must show both a deficient performance by counsel and subsequent prejudice resulting from that deficiency to merit relief. Id. at 687, 104 S.Ct. 2052. In conducting this two-prong test, the court essentially decides whether the defendant's Sixth Amendment right to a fair trial has been violated. Id. at 684, 104 S.Ct. 2052. This analysis extends to challenges arising out of the plea process as a critical stage in criminal adjudication, which warrants the same constitutional guarantee of effective assistance as trial proceedings. See Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)

; see also Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (recognizing plea bargaining as "an essential component of the administration of justice").

The first prong of the Strickland analysis requires a showing of a deficient performance. The defendant must show that counsel did not render "reasonably effective assistance." 466 U.S. at 687,104 S.Ct. 2052. The appropriate standard for ascertaining the deficiency is "reasonableness under prevailing professional norms." Id. at 688, 104 S.Ct. 2052. The caselaw uniformly holds that counsel is deficient when he or she fails to relate a plea offer to a client. United States v. Rodriguez Rodriguez, 929 F.2d 747, 752 (1st Cir.1991). Federal courts are "unanimous in finding that such conduct constitutes a violation" of the right to effective assistance. Barentine v. United States, 728 F.Supp. 1241, 1251 (W.D.N.C.1990),aff'd, 908 F.2d 968 (4th Cir.1990); see also United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 438 (3d Cir.1982)

(noting that failure to inform client "constitutes a gross deviation from accepted professional standards"). State courts have also consistently held that this omission constitutes a deficiency. Lloyd v. State, 258 Ga. 645, 373 S.E.2d 1, 3 (1988); see Rasmussen v. State, 280 Ark. 472, 658 S.W.2d 867, 868 (1983) (finding duty to notify because any plea agreement is between accused and prosecutor); State v. Simmons, 65 N.C.App. 294, 309 S.E.2d 493 (1983) (holding that such an allegation ordinarily states a claim).

Many courts have cited the American Bar Association Standards for Criminal Justice as confirmation that the failure to notify clients of plea offers falls below professional standards. See, e.g., Lloyd, 373 S.E.2d at 2

. The ABA standards require defense attorneys to "promptly communicate and explain to the accused all significant plea proposals made by the prosecutor." ABA Standards for Criminal Justice: Prosecution Function and Defense Function, stds. 4-6.2(b)(3d ed.1993). The commentary to standard 4-6.2 states:

Because plea discussions are usually held without the accused being present, the lawyer has the duty to communicate fully to the client the substance of the discussions. ... It is important that the accused be informed both of the existence and the content of proposals made by the prosecutor; the accused, not the lawyer, has the right to decide whether to accept or reject a prosecution proposal, even when the proposal is one that the lawyer would not approve.

Id. (emphasis added.) The Georgia Supreme Court in Lloyd noted Strickland's suggestion that the ABA standard would provide an appropriate guide for "[p]revailing norms of practice," although it did not constitute dispositive proof. 373 S.E.2d at 2. California's highest court has stressed counsel's "overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on the important decisions and to keep the defendant informed of important developments in the course of the prosecution." In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713, 830 P.2d 747, 754 (1992) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052).

Although this Court has not explicitly enunciated this rule in the caselaw, it has approved the proposition that defense attorneys have the duty to inform their clients of plea offers. See Fla. R.Crim. P. 3.171(c)(2) (mandating that counsel advise of "(A) all plea offers; and (B) all pertinent matters bearing on the choice of which plea to enter"). Florida caselaw has heretofore consistently relied on a three-part test for analyzing ineffective assistance claims based on allegations that counsel failed to properly advise the defendant about plea offers by the State. See Lee v. State, 677 So.2d 312 (Fla. 1st DCA 1996)

; Seymore v. State, 693 So.2d 647 (Fla. 1st DCA 1997); Hilligenn v. State, 660 So.2d 361 (Fla. 2d DCA 1995); Abella v. State, 429 So.2d 774 (Fla. 3d DCA 1983). Each of these cases hold that a claim must allege the following to make a prima facie case: (1) counsel failed to relay a plea offer, (2) defendant would have accepted it, and (3) the plea would have resulted in a lesser sentence.

PREJUDICE

Under Strickland, claimants must, of course, also demonstrate that counsel's omission was prejudicial to their cause. Typically, claimants must show that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." 466 U.S. at 687,104 S.Ct. 2052. However, courts have held that where counsel failed to disclose a plea offer, the claim is not legally insufficient merely because the claimant subsequently received a fair trial. People v. Curry, 178 Ill.2d 509, 227 Ill.Dec. 395, 687 N.E.2d 877, 882 (1997); In re Alvernaz, 8 Cal.Rptr.2d 713, 830 P.2d at 753 n. 5 (noting that no court has found a valid claim to be "remedied by a fair trial"). In lieu of a "fair trial" test for prejudice, the Supreme Court has crafted a test for claims of ineffective assistance arising out of the plea stage. For example, the Court has held that a claimant must demonstrate that "there is a reasonable probability that, but for counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59,106 S.Ct. 366.

Where the defendant was not notified of a plea offer, courts have held that the claimant must prove to a "reasonable probability that he [or she] would have accepted the offer instead of standing trial." State v. Stillings, 882 S.W.2d 696, 704 (Mo. Ct.App.1994) (rejecting claim where evidence showed appellant would have refused to plead guilty if made aware of plea offer); see also State v. James, 48 Wash. App. 353, 739 P.2d 1161, 1167 (1987)

(requiring a "reasonable probability that but for an attorney's error, a defendant would have accepted a plea agreement").

FLORIDA CASES

As noted above, before Cottle, and consistent with the practice in the federal courts and other state courts, courts in this state have recognized claims arising out of counsel's failure to inform a defendant of a plea offer, and have required a claimant to show that: (1) counsel failed to communicate a plea offer or misinformed defendant concerning the penalty faced, (2) defendant would have accepted the plea offer but for the inadequate notice, and (3) acceptance of the State's plea offer would have resulted in a lesser...