Hojan v. State

• Decision Date: 31 January 2017
• Docket Number: No. SC13–2422,No. SC13–5,SC13–5,SC13–2422
• Citation: 212 So.3d 982
• Parties: Gerhard HOJAN, Appellant, v. STATE of Florida, Appellee. Gerhard Hojan, Petitioner, v. Julie L. Jones, etc., Respondent.
• Court: Florida Supreme Court

212 So.3d 982

Gerhard HOJAN, Appellant,

v.STATE of Florida, Appellee.

Gerhard Hojan, Petitioner,

v.Julie L. Jones, etc., Respondent.

No. SC13–5

No. SC13–2422

Supreme Court of Florida.

[January 31, 2017]

Neal Andre Dupree, Capital Collateral Regional Counsel, Southern Region, Todd Gerald Scher, Assistant Capital Collateral Regional Counsel, Southern Region, and Jessica Leigh Houston, Staff Attorney, Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida, for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Lisa–Marie Krause Lerner, Assistant Attorney General, West Palm Beach, Florida, for Appellee/Respondent

PER CURIAM.

Gerhard Hojan was convicted of two counts of first-degree murder, one count of attempted first-degree premeditated murder, one count of attempted first-degree felony murder, three counts of armed kidnapping, and two counts of armed robbery. Hojan was sentenced to death. This Court affirmed his convictions and sentences on direct appeal. Hojan v. State , 3 So.3d 1204 (Fla.), cert. denied , Hojan v. Florida , 558 U.S. 1052, 130 S.Ct. 741, 175 L.Ed.2d 521 (2009).

Hojan now appeals the denial of his initial motion for postconviction relief and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we affirm the postconviction court's denial of relief but grant Hojan a new penalty phase based on the United States Supreme Court's decision in Hurst v. Florida , ––– U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016).¹

FACTS

This Court summarized the relevant facts on direct appeal as follows:

Gerhard Hojan was charged with armed robbery, armed kidnapping, attempted murder, and murder arising out of the events of Monday, March 11, 2002. The evidence presented at Hojan's trial established that at approximately 4 a.m., Hojan and Jimmy Mickel entered the Waffle House where the victims, Barbara Nunn, Christina De La Rosa, and Willy Absolu worked. Hojan and Mickel had eaten at that Waffle House on several prior occasions, and the victims recognized and knew Hojan and Mickel. Mickel had also previously worked at that Waffle House. Additionally, Nunn knew Mickel and Hojan from attending a club where Mickel and Hojan worked and where they had previously admitted Nunn for free.

After eating breakfast, Mickel exited the Waffle House. He returned with a pair of bolt cutters and went toward the employee section of the restaurant. Hojan produced a handgun and ordered Nunn, De La Rosa, and Absolu into the back of the kitchen, where he directed them into a small freezer and shut them inside. While Mickel cut the locks to various cash stores, Hojan returned to the freezer a total of three times. First, Hojan returned and demanded that the victims give him any cell phones they had. Next, he returned and demanded their money. Finally, he returned and ordered the victims to turn around and kneel on the floor. Nunn protested and tried to persuade Hojan not to kill them, but Hojan nevertheless shot each of the victims....

Nunn survived and awoke later with Absolu's legs on top of her body. She crawled out of the freezer and went next door to a gas station. There, with the help of the night attendant, she called 911 and subsequently her mother and sister.... Prior to her helicopter flight, Nunn gave law enforcement officers a taped statement, in which she identified Mickel and Hojan as being involved....

Hojan was convicted of two counts of first-degree murder for the death of Absolu and De La Rosa; one count of attempted first-degree premeditated murder as to Nunn; one count of attempted first-degree felony murder as to Nunn; three counts of armed kidnapping; and two counts of armed robbery. State v. Hojan , No. 02–5900CF10B (Fla. 17th Cir. Ct. sentencing order filed Aug. 2, 2005) at 1 (Sentencing Order). The jury recommended death by a vote of nine to three, and the trial court followed that recommendation and imposed two death sentences for the murders of Absolu and De La Rosa. In sentencing Hojan to death, the trial court found six aggravators, one statutory mitigator, and two nonstatutory mitigators....

On appeal, Hojan raises five claims. He argues that (1) the surviving victim's statement to an officer at the scene was not an excited utterance; (2) the trial court improperly treated Hojan's waiver of the opportunity to present mitigating evidence in the penalty phase as a waiver of his opportunity to present motions challenging the death penalty; (3) his confession should have been suppressed; (4) Florida's death penalty statute is unconstitutional; and (5) the trial court committed error under Koon v. Dugger , 619 So.2d 246 (Fla. 1993), and Muhammad v. State , 782 So.2d 343 (Fla. 2001). We independently assess the sufficiency of the evidence and the proportionality of Hojan's sentence. We find no error under Hojan's five asserted claims, find that sufficient evidence exists, and conclude that the death sentence is proportional. Accordingly, we affirm the trial court's order sentencing Hojan to death.

Hojan , 3 So.3d at 1207–09 (footnote omitted).

On November 19, 2010, Hojan filed a "Motion to Vacate Judgment of Convictions and Sentences with Special Request for Leave to Amend," raising nine claims, which the circuit court treated as Hojan's initial postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.851.²

The circuit court entered an order that summarily denied all of Hojan's claims for postconviction relief. This appeal follows. Hojan also petitions this Court for a writ of habeas corpus.³

ANALYSIS

Standard of Review—Postconviction Motion

We have previously established that there is a presumption that claims for relief sought in a rule 3.851 motion are presumptively entitled to a postconviction evidentiary hearing. However, the circuit court's summary judgment denying a defendant's rule 3.851 motion will be upheld if there is a conclusive showing that defendant is not entitled to relief, or the claim(s) is insufficiently pleaded.

"A defendant is normally entitled to an evidentiary hearing on a postconviction motion ‘unless (1) the motion, files, and records in the case conclusively show that the movant is entitled to no relief, or (2) the motion or particular claim is legally insufficient.’ " Valentine v. State , 98 So.3d 44, 54 (Fla. 2012) (quoting Franqui v. State , 59 So.3d 82, 95 (Fla. 2011) ). An evidentiary hearing must be held on an initial 3.851 motion whenever the movant makes a facially sufficient claim that requires factual determination.

See Amendments to Fla. Rules of Crim. Pro. 3.851, 3.852, & 3.993 , 772 So.2d 488, 491 n.2 (Fla. 2000). "[T]o the extent there is any question as to whether a rule 3.851 movant has made a facially sufficient claim requiring a factual determination, the Court will presume that an evidentiary hearing is required." Walker v. State , 88 So.3d 128, 135 (Fla. 2012). However, merely conclusory allegations are not sufficient—the defendant bears the burden of "establishing a ‘prima facie case based on a legally valid claim.’ " Valentine , 98 So.3d at 54 (quoting Franqui , 59 So.3d at 96 ).

"To uphold the trial court's summary denial of claims raised in an initial postconviction motion, the record must conclusively demonstrate that the defendant is not entitled to relief." Everett v. State , 54 So.3d 464, 485 (Fla. 2010). When reviewing the circuit court's summary denial of an initial rule 3.851 motion, we will accept the movant's factual allegations as true and will affirm the ruling only if the filings show that the movant has failed to state a facially sufficient claim, there is no issue of material fact to be determined, the claim should have been brought on direct appeal, or the claim is positively refuted by the record. See Walker , 88 So.3d at 135. Finally, "[b]ecause a court's decision whether to grant an evidentiary hearing on a rule 3.851 motion is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review." Seibert v. State , 64 So.3d 67, 75 (Fla. 2010) (citing State v. Coney , 845 So.2d 120, 137 (Fla. 2003) (holding that pure questions of law that are discernable from the record are subject to de novo review)).

Barnes v. State , 124 So.3d 904, 911 (Fla. 2013). As we explain below, we affirm the circuit court's summary denial of Hojan's motion for postconviction relief.

Merits—Postconviction Motion

Trial Court Error

Hojan raised four subclaims pertaining to alleged trial court error: (1) failure to subject certain analysis of forensic evidence introduced by the State's expert witness to a Frye ⁴ hearing; (2) failure to inquire into whether Hojan knowingly, intelligently, and voluntarily waived his Miranda ⁵ rights; (3) failure to recognize that Hojan was entitled to relief under the Vienna Convention;⁶ and (4) failure to disallow the jury selection process, as unorthodox and unconstitutional.

In light of the record before us, we determine that the circuit court found conclusive evidence that Hojan was not entitled to relief based on any of the subclaims under his overall claim of trial court error. Notwithstanding the absence of trial court error, we specifically comment below about Hojan's assertion that the jury selection procedure in his case was unorthodox and unconstitutional.

Frye Hearing

Hojan asserts that he was entitled to an evidentiary hearing to address counsel's ineffectiveness for failing to challenge certain forensic evidence analysis in a Frye hearing. However, the record shows that the circuit court did not err in summarily denying this subclaim as being insufficiently pleaded and lacking merit. Relying on the authority of Ramirez v. State , 810 So.2d 836 (Fla. 2001), the circuit court rejected as conclusory Hojan's assertion that a 2009 report promulgated by the National...