Hanania v. State

• Decision Date: 01 February 2019
• Docket Number: Case No. 2D17-4044
• Citation: 264 So.3d 317
• Parties: Jorge HANANIA, DOC# 366702, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

264 So.3d 317

Jorge HANANIA, DOC# 366702, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D17-4044

District Court of Appeal of Florida, Second District.

Opinion filed February 1, 2019

Jorge Hanania, pro se.

SALARIO, Judge.

Jorge Hanania appeals from a final order summarily denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Having reviewed his motion and our limited postconviction record, we conclude that Mr. Hanania has presented three claims of ineffective assistance of counsel related to a search of his motel room that are not refuted by the record and that are either legally sufficient or might be amended to make them so and a fourth legally sufficient claim of cumulative error. The postconviction court erred by summarily denying those claims. We reverse the order to that extent and affirm the balance without comment.

In October 2012, Mr. Hanania pleaded no contest to one count each of possession of methamphetamine, possession of alprazolam, possession of cannabis, and possession of paraphernalia. The trial court sentenced Mr. Hanania to a total of eleven years—five years on the methamphetamine charge to run consecutively to five years on the alprazolam charge and concurrent terms of twelve months each on the cannabis and paraphernalia charges, which the trial court ran consecutively to the sentences for possession of alprazolam and possession of methamphetamine. The trial court suspended the sentences and required Mr. Hanania to complete eleven years of probation.

Two weeks later, Mr. Hanania was arrested and charged with possession of methamphetamine and possession of paraphernalia. The arrest followed the search of a motel room in which Mr. Hanania, a friend named Oscar, and Mr. Hanania's girlfriend, Krystal Leighton, were present. Mr. Hanania's motion tells the story as follows: Polk County Sheriff's Deputy William Roberts was driving behind Ms. Leighton as she was parking a car at the motel. Ms. Leighton backed out of her parking spot to straighten the car out and almost hit Deputy Roberts' patrol car. Deputy Roberts got out of his car and began questioning Ms. Leighton. She told the deputy that the car belonged to Mr. Hanania, who was upstairs in their motel room. Deputy Roberts told Ms. Leighton that his computer showed that the car belonged to Mr. Hanania's mother and asked to speak with him. Ms. Leighton remained in the parking lot with another deputy, who had since arrived, while Deputy Roberts went upstairs.

Deputy Roberts met Mr. Hanania at the door of his motel room. Mr. Hanania said that the car was his mother's and that he let Ms. Leighton drive it. Deputy Roberts asked whether he was on probation, and Mr. Hanania replied that he "was just put on probation for meth." The deputy asked if he could search Mr. Hanania and Oscar. Both consented. The second deputy arrived with Ms. Leighton—who evidently also consented to be searched—and all three were searched outside the room.

The searches turned up bubkes, and Deputy Roberts let Mr. Hanania, Ms. Leighton, and Oscar return to the motel room. As they walked into the room, Deputy Roberts stopped the door from closing and followed them in, over Mr. Hanania's objection, asserting that he had a right to search Mr. Hanania's room because he was on probation. Undeterred by Mr. Hanania's continuing protests over his entry into the room, Deputy Roberts searched the room and found a pipe and a scale between the bed sheets, which Mr. Hanania denied were his. The pipe tested positive for methamphetamine. Mr. Hanania was then arrested on new possession charges, which prompted the State to file a notice of violation of probation related to the eleven-year sentence Mr. Hanania had just received on the old possession charges.

At an evidentiary hearing on the probation violations, Deputy Roberts testified that after Mr. Hanania was arrested, he admitted buying the pipe, using the pipe to smoke methamphetamine, and using the scale to weigh methamphetamine. In his rule 3.850 motion, Mr. Hanania denies anything of the kind. Our limited record does not contain any information apart from Deputy Roberts' testimony at the probation violation hearing.

At that hearing, Deputy Roberts also testified that before searching the motel room, he did not have any reason to think that there were drugs in the room. Deputy Roberts stated several times that he asked for consent to search the motel room, but he never said whether the consent he sought was given or withheld. The trial court found that Mr. Hanania's statements to Deputy Roberts established that he willfully violated his probation by possessing drug paraphernalia, revoked probation, and reimposed the previously suspended sentences. This court affirmed. See Hanania v. State, 138 So.3d 1031 (Fla. 2d DCA 2014) (table decision).

Mr. Hanania then filed his rule 3.850 motion, which he later amended and supplemented. The postconviction court struck these filings because Mr. Hanania had not complied with the English-literacy certification requirement of rule 3.850(n)(2). At the postconviction court's direction, Mr. Hanania refiled a single rule 3.850 motion curing that deficiency. The motion raised five claims of ineffective assistance of counsel and one claim of cumulative error, all of which were related in one way or another to his contention that the evidence against him was the product of an illegal search in violation of the Fourth Amendment.

The postconviction court summarily denied claim five and ordered the State to respond to the other claims. The State responded that claim one should be denied, that claims two and three should be dismissed with leave to amend, and that claim four required an evidentiary hearing.

Notwithstanding the State's response that Mr. Hanania should get leave to amend two claims and that an evidentiary hearing was required on a third, the postconviction court entered a final order summarily denying Mr. Hanania's motion in its entirety. Contrary to what the State said in its response, the postconviction court wrote that "the State argues that the Defendant's claims should be denied. The Court agrees." It reasoned that all of Mr. Hanania's claims boiled down to whether to believe Mr. Hanania's story concerning whether he consented to the search of the motel room or whether, instead, to believe the deputy's. The court concluded as follows: "Given the Defendant's past record and interest in the outcome of the case, the Court finds that it is not probable that a motion to suppress would have been granted or that the result of the Defendant's [probation violation] hearing would have been different."¹ It attached to its order the transcript of Deputy Roberts' testimony at Mr. Hanania's probation violation hearing. This is Mr. Hanania's timely appeal.

We review the summary denial of a motion for postconviction relief de novo. Martin v. State, 205 So.3d 811, 812 (Fla. 2d DCA 2016). Our task is "to determine whether the claims are legally sufficient and whether they are conclusively refuted by the record." Watson v. State, 34 So.3d 806, 808 (Fla. 2d DCA 2010) (quoting Griggs v. State, 995 So.2d 994, 995 (Fla. 1st DCA 2008) ). "When a postconviction court summarily denies a defendant's motion without an evidentiary hearing, an appellate court ‘must accept a defendant's factual allegations as true to the extent they are not refuted by the record.’ " Balmori v. State, 985 So.2d 646, 649 (Fla. 2d DCA 2008) (quoting Floyd v. State, 808 So.2d 175, 182 (Fla. 2002) ). To sufficiently plead a claim of ineffective assistance of counsel, the defendant must sufficiently allege facts showing (1) that counsel's performance was deficient and (2) that counsel's deficient performance prejudiced the defendant. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In claim two of his postconviction motion, Mr. Hanania asserted in a generalized fashion that his counsel should have "challenged" the search of his motel room during his probation violation proceedings. However, as the State pointed out in its response, Mr. Hanania did not make any allegations regarding exactly what counsel should have done or how counsel should have done it. Based on some of the cases his motion cites, Mr. Hanania probably meant that counsel should have filed a motion to suppress or otherwise tried to exclude the evidence resulting from that search on the theory that Deputy Roberts lacked the authority to conduct a warrantless, nonconsensual search of his hotel room—which, as we discuss below, is also the focus of claim four. But as presented in claim two, this claim was merely conclusory and thus facially insufficient. See Knight v. State, 923 So.2d 387, 399 (Fla. 2005) (noting that the defendant's claim that counsel was ineffective for not challenging the State's experts was conclusory and insufficient when the defendant did not allege what particular challenge counsel should have made); Kennedy v. State, 547 So.2d 912, 913 (Fla. 1989) (stating that a defendant seeking postconviction relief "must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record and that demonstrate a deficiency on the part of counsel which is detrimental to the defendant"). Instead of summarily denying it, the postconviction court should have given Mr. Hanania an opportunity to amend this claim. See Fla. R. Crim. P. 3.850(f)(2). To the extent he can allege a legally sufficient claim based on counsel's failure to "challenge" the search that is independent of claim four, he is entitled to an opportunity to plead it. See Spera v. State, 971 So.2d 754, 761 (Fla. 2007).

Because claim four is closely related to claim two, we discuss that claim next. In claim four, Mr. Hanania specifically alleged that counsel should have filed a motion to suppress the evidence obtained as a result of the search of the motel room. He asserted that the...