Hernandez v. State, Case No. 2D18-1875

• Decision Date: 09 November 2018
• Docket Number: Case No. 2D18-1875
• Citation: 259 So.3d 907
• Parties: Alonso Kaosayan HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

259 So.3d 907

Alonso Kaosayan HERNANDEZ, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D18-1875

District Court of Appeal of Florida, Second District.

Opinion filed November 9, 2018

Alonso Hernandez, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Respondent.

LaROSE, Chief Judge.

Alonso Kaosayan Hernandez filed a petition under Florida Rule of Appellate Procedure 9.141(d) asserting four grounds of ineffective assistance of appellate counsel. We grant as to grounds one and four and deny as to grounds two and three.

Mr. Hernandez entered a negotiated no contest plea to burglary of a dwelling or structure with over $1000 in damage and grand theft, $20,000 or more, in case numbers 2010-CF-421 and 2010-CF-427, and to grand theft in case number 2011-CF-909. Because he was later found incompetent to proceed, his sentencing hearing was put off until he regained competency, about two years later. Counsel for Mr. Hernandez at sentencing was not the attorney who negotiated the plea deal. Counsel advised the trial court that Mr. Hernandez had instructed him to renegotiate the plea deal because he did not understand the plea colloquy and proceedings before the prior judge, Judge Cowden. However, the State declined to renegotiate.

Counsel said that he did not think there was a good faith basis for a motion to withdraw plea¹ and believed that the plea was very thought out and complete. He asserted that Judge Cowden would have stopped the proceedings if there had been an issue with Mr. Hernandez's understanding of what was taking place during the plea colloquy. Counsel never formally moved to withdraw Mr. Hernandez's plea, and there was no ruling by the trial court. The trial court did not ask Mr. Hernandez if he wanted to withdraw his plea; it heard arguments regarding the appropriate sentence to impose. The trial court then sentenced Mr. Hernandez to a total of fifteen years' imprisonment followed by fifteen years' probation.

The State concedes that appellate counsel was ineffective for failing to argue on appeal that once trial counsel took a position adverse to Mr. Hernandez's obvious desire to withdraw his plea, the trial court should have either permitted counsel to withdraw or discharged counsel and appointed conflict-free counsel for this critical stage of the proceedings. See Jones v. State, 74 So.3d 118, 120-21 (Fla. 1st DCA 2011) (holding that the relationship between the defendant and defense counsel became adversarial once counsel stated that he did not believe the defendant had a sufficient basis for withdrawing his plea and that the trial court should have either permitted counsel to withdraw or discharged counsel and appointed conflict-free counsel to represent the defendant because a motion to withdraw plea is a critical stage of the proceedings); see also Benjamin v. State, 230 So.3d 953, 955 (Fla. 2d DCA 2017) (reversing and remanding for the trial court to conduct a hearing on Benjamin's motion to withdraw plea because the trial court failed to inquire into the potential for conflict when counsel said that Benjamin had buyer's remorse and because the trial court failed to inquire into whether Benjamin's complaint that he was not provided with discovery would support his desire to withdraw his plea).

By accepting trial counsel's argument that there was no basis for Mr. Hernandez to withdraw his plea and proceeding to sentencing, the trial court deprived Mr. Hernandez of his right to be heard on his desire to withdraw his plea and of his right to the effective assistance of counsel during a critical stage of the proceedings. Consequently, appellate counsel's failure to raise this issue on appeal undermines confidence in the outcome of Mr. Hernandez's appeal. See Downs v. Moore, 801 So.2d 906, 909-10 (Fla. 2001). Accordingly, we grant ground one of Mr. Hernandez's petition. Because a new appeal would be redundant, we reverse Mr. Hernandez's sentences and remand for the trial court to appoint conflict-free counsel to file a motion to withdraw plea should Mr. Hernandez still desire to do so.

In ground four of his petition, Mr. Hernandez argues that appellate counsel was ineffective for failing to file a motion to correct sentencing error under Florida Rule of Criminal Procedure rule 3.800(b)(2) and preserve the issue of his improper designation as a violent felony offender of special concern (VFOSC). See Fla. R. App. P. 9.140(b)(2)(A)(ii)(d) (providing that a defendant who enters a plea may appeal a preserved sentencing error). Although the plea agreement called for designation as a VFOSC, he argues that the designation was improper because he was not on...