Losada v. State

• Decision Date: 26 December 2018
• Docket Number: No. 3D16-1758,3D16-1758
• Citation: 260 So.3d 1156
• Parties: Adonis LOSADA, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

260 So.3d 1156

Adonis LOSADA, Appellant,

v.The STATE of Florida, Appellee.

No. 3D16-1758

District Court of Appeal of Florida, Third District.

Opinion filed December 26, 2018.

Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.

Before LAGOA, LOGUE, and SCALES, JJ.

LAGOA, J.

Adonis Losada ("Losada") appeals his final judgment of conviction and sentence, arguing that a new trial is required as the trial court erred on two separate grounds. Specifically, Losada contends that the trial court erred by (1) failing to make an independent determination of Losada's competency to stand trial at his competency hearing and (2) failing to apply the correct legal standard in determining that Losada was not competent to waive his Sixth Amendment right to counsel. For the reasons discussed below, we agree on both grounds and reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 28, 2009, Detective Charles Ramos ("Ramos"), a Special Investigator for the Palm Beach State Attorney's Office, was working in an undercover capacity in an online chatroom primarily used by individuals seeking to have sexual relations with young children when Losada sent an image of child pornography from his computer to Ramos in Palm Beach County. On September 14, 2009, Losada again sent numerous images depicting child pornography to Ramos. After tracking the IP address of Losada's computer, the Miami Beach Police Department executed a search warrant on Losada's Miami Beach apartment and seized his computer. Additional images depicting child pornography were found on Losada's computer.

Losada was charged in Miami-Dade County with numerous counts of possession and transmission of materials depicting sexual performance by a child in violation of sections 827.071(5) and 775.0847(2) - (3), Florida Statutes (2009).¹ Losada was also charged in Palm Beach County in case number 2009CF11930AXX (the "Palm Beach action"), with charges arising from the same undercover investigation.² In October 2012, during the proceedings of the Palm Beach action, the Palm Beach circuit court found Losada not competent to proceed to trial based on a report written by Dr. Jeff Dalia ("Dr. Dalia"). On October 22, 2013, the trial court in the instant case relied upon Dr. Dalia's report to adjudicate Losada incompetent to stand trial below.³

After several experts appointed by the Palm Beach circuit court found Losada was restored to competency, Losada was returned to the Palm Beach County jail. After the Palm Beach circuit court concluded that Losada was restored to competency, trial in the Palm Beach action commenced in January 2014. At the conclusion of that trial, Losada was found guilty and received a sentence of ten years. See State v. Losada, 175 So.3d 911, 912, 915 (Fla. 4th DCA 2015) (affirming Losada's conviction and sentence).

Losada was subsequently transferred to Miami-Dade County, where the trial court ordered the appointment of two psychologists—Dr. Laura Artiles ("Dr. Artiles") and Dr. Merry Haber ("Dr. Haber")—to evaluate Losada's competency to proceed to trial and to waive his right to counsel in the instant case. Dr. Artiles and Dr. Haber opined in separate, written reports dated October 31, 2013, and November 14, 2013, respectively, that Losada was competent to proceed to trial. Neither psychologist made any finding that Losada suffered from "any cognitive or mental impairment" or "major mental illness."

At a December 3, 2013, pretrial status hearing, defense counsel for Losada stated that: "[Losada has] been evaluated by two different doctors. At this time both finding that he is competent. I will stipulate to the reports." Based upon the defense counsel's stipulation to the expert reports, the trial court found Losada competent to proceed to trial. The trial court neither issued a written order on its competency determination nor indicated that it had reviewed the reports.

At the same hearing, Losada requested to waive his counsel and represent himself at trial. On December 5, 2013, the trial court conducted a Faretta hearing,⁴ where Losada, a non-native English speaker, was assisted by the court interpreter. At the beginning of the Faretta hearing, Losada stated he was "making a waiver of [his] rights to standby counsel." The trial court then had the following exchange with Losada during the Faretta colloquy:

THE COURT: ... Mr. Losada, is it your desire to represent yourself at trial?

THE DEFANDANT: I invoke my right to be represented without anybody speaking for me in this courtroom.

THE COURT: So do you intend to represent yourself?

THE DEFENDANT: I do not know what that is called, your Honor. I simply, if you need to talk to me it's going to be me. All decisions and actions to be taken will be taken by me, under my own responsibility.

THE COURT: Here is my question, are you going to hire another lawyer?

THE DEFENDANT: I am waiving my right to standby counsel.

THE COURT: I didn't ask you that. I asked you if you're going to hire another lawyer. I'm asking for that now.

THE DEFENDANT: I can not hire any other lawyer because I am in jail.

THE COURT: Thank you. Thank you.

THE DEFENDANT: You're not letting me answer, your Honor.

THE COURT: Thank you. Would you like me to appoint another lawyer for you?

THE DEFENDANT: No.

THE COURT: So you want to represent yourself?

THE DEFENDANT: I do not know what's that called, your Honor. I'll make my decisions by myself. Any decision will be my decision. Any action will be my own action and I repeat that I want to exercise my right to remain silent.

The trial court then asked Losada if he understood the nature of the crimes of which he was charged and their potential sentences, explained that counsel would be appointed if Losada could not afford a lawyer, and warned of the risks of self-representation. The trial court reserved ruling on Losada's request.

On March 5, 2014, the trial court denied in a written order Losada's request to represent himself, finding that: (1) Losada suffered from "severe mental illness"; (2) Losada's waiver was not unequivocal due to "wildly bizarre" "answers to straightforward questions" during the hearing; and (3) the Sixth Amendment does not guarantee self-representation to a defendant who "refuses to defend himself." In its written order, the trial court specifically found that Losada's "bizarre or self-destructive behavior," e.g., refusing to eat, to communicate with staff, or to take his medications, and being placed on suicide watch, throughout the proceedings of the Palm Beach trial was evidence of severe mental illness. The trial court also expressed concerns that failing to appoint counsel to Losada would not "preserve the orderly and dignified nature of the proceedings," rendering them "a ‘trial’ in name only." The trial court subsequently appointed the Public Defender's Office to represent Losada.

In April 2016, the case proceeded to trial. The jury found Losada guilty on fifty-one of the counts,⁵ and the trial court sentenced Losada to a term of imprisonment of three years for each count to run consecutive with the conviction in the Palm Beach trial for a total of 153 years in state prison.⁶ This timely appeal ensued.

II. STANDARD OF REVIEW

We review a trial court's determination of whether a defendant is competent to stand trial for an abuse of discretion. McCray v. State, 71 So.3d 848, 862 (Fla. 2011). "A trial court's decision regarding a determination of competency is subject to review for abuse of discretion, and the trial court's resolution of factual disputes will be upheld if supported by competent, substantial evidence." Larkin v. State, 147 So.3d 452, 464 (Fla. 2014). An abuse of discretion occurs when "the trial court applie[s] the incorrect legal standard" in assessing whether a defendant is not competent to waive his right to counsel. Loor v. State, 240 So.3d 136, 142 (Fla. 3d DCA 2018) ; see also Williams v. State, 163 So.3d 694, 697 (Fla. 4th DCA 2015).

III. ANALYSIS

On appeal, Losada argues that the trial court abused its discretion on two grounds: (1) by not making an independent determination of his competency to stand trial; and (2) by denying his request to waive counsel and exercise his right to self-representation. We agree on both grounds.

A. Losada's Competency to Stand Trial

The U.S. Supreme Court has long "recognized that ‘the failure to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial.’ " Dougherty v. State, 149 So.3d 672, 676 (Fla. 2014) (quoting Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) ). Florida Rule of Criminal Procedure 3.210(a) provides that "[a] person accused of an offense ... who is mentally incompetent to proceed at any material stage of a criminal proceeding shall not be proceeded against while incompetent." If there is "reasonable ground to believe that the defendant is not mentally competent to proceed," the trial court, on either its own motion or on motion of parties' counsel, shall set "a hearing to determine the defendant's mental condition" and "may order the defendant to be examined by no more than 3 experts." Fla. R. Crim. P. 3.210(b). In evaluating the defendant's competence to stand trial, the appointed experts shall consider "whether the defendant has sufficient present ability to consult with counsel with a reasonable degree of rational understanding and whether the defendant has a rational, as well as factual, understanding of the pending proceedings." Fla. R. Crim. P. 3.211(a)(1).

After the competency hearing, the trial court must make its own "independent legal determination regarding whether the defendant is competent, after considering the expert testimony or reports and other relevant factors." Shakes v. State, 185 So.3d 679, 682 (Fla. 2d DCA 2016)...