Lopez v. State, 68494

• Decision Date: 22 December 1988
• Docket Number: No. 68494,68494
• Parties: 13 Fla. L. Weekly 723 Eduardo LOPEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 226

536 So.2d 226

13 Fla. L. Weekly 723

Eduardo LOPEZ, Appellant, v. STATE of Florida, Appellee.

No. 68494.

Supreme Court of Florida.

Dec. 22, 1988.

Michael B. Chavies, Miami, for appellant.

Robert A. Butterworth, Atty. Gen., and Richard L. Kaplan, Capital Collateral Coordinator, Miami, for appellee.

PER CURIAM.

Lopez appeals his sentence of death imposed after the trial court adjudicated him guilty of first-degree murder. ¹ We have jurisdiction pursuant to article V, section 3(b)(1) of the state constitution. We affirm both the conviction and the death sentence.

In late January 1983 Lopez and two accomplices broke into a home at night, intending to steal a stash of drug money they believed to be hidden in the home. A woman occupied the house with her two teenage daughters and eight-year-old son. At the time of this incident, however, only the mother and son were at home. They had been watching television in the mother's bedroom and had fallen asleep. Awakened by the intruders, the woman screamed, but Lopez put his hand over her mouth and ordered her to be quiet. After the woman bit Lopez' hand, he put a gun to her head. One of Lopez' companions, who were ransacking the bedroom, told Lopez to kill the woman, and he shot her in the side of the face. The son had been awakened by the commotion. Although dazed, the mother remained conscious and heard her son beg Lopez to leave her alone and not to hurt her. She also heard one of Lopez' accomplices tell him to kill the child, after which she heard another muffled shot. The woman survived and identified Lopez as the shooter; the child died.

After being indicted, Lopez entered into a written plea agreement, in June 1984, under which he would receive three life sentences in return for testifying against his accomplices. Should he fail to testify, he would subject himself to consideration of a possible sentence of death on one first-degree murder count. When Lopez refused to testify in 1985, the state moved for enforcement of the bargain. Lopez then moved to set aside the guilty plea and asked for a trial on all issues. After a hearing on these motions in late July and early August 1985, the court granted the state's motion and denied Lopez' motion. Lopez waived sentencing before a jury, and the court held a three-day sentencing hearing in December 1985. In February 1986 the court sentenced Lopez to death.

Lopez now argues that the court erred both by refusing to allow him to withdraw his plea and proceed to trial on all issues and by refusing to set aside the plea as not having been freely and voluntarily made. In testifying before the trial court on the motion to enforce the plea agreement Lopez stated that he did not know that he would have to testify against his accomplices, that he would not have signed the plea agreement if he had understood he would have to testify against them, that his life had been threatened at two state correctional institutions to keep him from testifying against the accomplices, and that his former attorney, Castro, had pressured him into signing the agreement and had told Lopez that he would only have to serve seven years. A bilingual police detective, Diaz, who participated in the plea negotiations, testified that, in his opinion, Lopez fully understood what was expected of him as well as exactly what sentence he would receive. Berk, the former state attorney who originally handled Lopez' case, also testified. He stated that, because people are sometimes afraid to testify against codefendants, Lopez had been offered protection all along. Lopez, however, never voiced any fear of anyone until he filed an affidavit with his motion to withdraw the plea.

Castro, Lopez' original attorney, ² testified that Lopez approached him about striking a deal with the state to save himself from a possible death sentence. According to Castro, Lopez was "itching" to testify against his accomplices. Castro also stated that he explained the twenty-five-year minimum mandatory sentence to Lopez as well as the consequences of not abiding by the plea agreement. When Lopez came to court to enter his plea, he had a list of questions which, Castro testified, he thought were repetitive because he and Lopez had already discussed them. ³ Castro testified that he believed Lopez fully understood the plea and that he was being evasive at that last moment before entering the plea.

The transcript of the plea colloquy reveals that the judge questioned both Lopez and the state attorney closely about the plea agreement. Lopez repeatedly said that he understood what his sentence would be and what was expected of him under the agreement. ⁴ The judge, apparently, satisfied himself as to the entry of the plea and found: "the facts are sufficient to sustain your plea and that your decision to plead guilty was freely, voluntarily and intelligently made; that you have had the advice and counsel of a competent lawyer with whom you are satisfied." He then approved the agreement and sentenced Lopez to three consecutive terms of life imprisonment with a mandatory minimum sentence of twenty-five years on the homicide count.

A guilty plea "must be voluntarily made by one competent to know the consequences of that plea and must not be induced by promises, threats or coercion." Mikenas v. State, 460 So.2d 359, 361 (Fla.1984). A trial court must inquire carefully into the voluntariness of a plea. Id. On the face of the transcript of the plea colloquy Lopez' guilty plea meets these standards. Lopez, however, testified at the enforcement hearing that he did not understand the terms and consequences of his plea and that his attorney pressured him into entering the guilty plea.

Allowing the withdrawal of a guilty plea is within a trial court's discretion; it is not a matter of right. Adams v. State, 83 So.2d 273 (Fla.1955); Adler v. State, 382 So.2d 1298 (Fla. 3d DCA 1980). The burden of proving a trial court abused its discretion in refusing to allow withdrawal of a guilty plea is on the defendant. Mikenas; Adams. After imposition of sentence, that burden means that a defendant must show manifest injustice. Adler.

The credibility of witnesses testifying as to withdrawal of a plea is in the trial judge's hands. Adams; Johnson v. State, 380 So.2d 1024 (Fla.1979). After hearing all the testimony at the 1985 hearing, the trial judge concluded that Castro did not mislead Lopez, that Lopez understood he would have to serve at least twenty-five years, and that Lopez' claim of misunderstanding the plea agreement arose only after he "made a conscious and willful decision not to testify against his accomplices under any circumstances." In denying the motion to withdraw the plea the court found that Lopez "lied when he testified that he would not have accepted the plea bargain and entered his conditioned guilty pleas on June 13, 1984, if he had known that he would have to testify against his accomplices" and that Lopez had "made no showing that a manifest injustice has occurred in his case."

After reviewing this record, we hold that the court correctly found Lopez' plea to have been entered freely, voluntarily, and intelligently and agree that Lopez has shown no manifest injustice requiring withdrawal of his plea. Moreover, Lopez has shown no abuse of discretion in the trial court's denial of the motion to withdraw the plea. We therefore affirm that ruling.

Turning to the motion to enforce the plea, the court found that Lopez had knowingly, voluntarily, and intelligently agreed to testify against his accomplices and that he agreed to the alteration of his sentences if he failed to testify. The court held these to be legal conditions which the state could seek to enforce. After assessing the witnesses' credibility, the court found that Lopez "was never in actual fear from any threat and has refused to testify for personal reasons having no relationship to any threat," that he "freely, voluntarily, knowingly and willfully refused, and continues to refuse, to testify against his accomplices," and that Lopez fully knew the likely consequences of failing to abide by the agreement. ⁵ The court granted the motion to enforce the plea agreement.

Bargained-for guilty pleas are similar to "a contract between society and an accused, entered into on the basis of a perceived 'mutuality of advantage.' " Brown v. State, 367 So.2d 616, 622 (Fla.1979) (footnote omitted). In the instant case Lopez received three life sentences, rather than facing the possibility of a death sentence, in return for his testimony. When he refused to testify, he breached his contract with the state.

In a similar situation a defendant bargained for two life sentences in return for his testimony. After striking that bargain, but before the court accepted his plea, the defendant refused to testify. The state then withdrew the agreement and went to trial. On appeal this Court stated:

Hoffman had the choice of abiding by the plea agreement or not. When he refused to go along, the agreement became null and void as if it had never existed. A defendant cannot be allowed to arrange a plea bargain, back out of his part of the bargain, and yet insist the prosecutor uphold his end of the agreement.

Hoffman v. State, 474 So.2d 1178, 1182 (Fla.1985).

The reasoning of Hoffman applies to this case. Lopez received what he bargained for, but refused to provide what the state bargained for. His change of mind is not a sufficient reason for his refusal to uphold his part of the agreement. Lopez has shown no error in the trial court's granting the motion to enforce the agreement, and we affirm that ruling.

In his third point Lopez argues that the trial court erred by not holding a hearing on Lopez' competency prior to entry of his plea in June 1984. His appellate brief states that Lopez consistently displayed irrational behavior before and after the plea and cites to the transcript of the hearing on the motion to enforce the plea...