Ondich v. Jones
| Decision Date | 13 July 2017 |
| Docket Number | CASE NO. 16-CIV-61042-GAYLES |
| Parties | MARK ONDICH, Petitioner, v. JULIE JONES, Respondent. |
| Court | U.S. District Court — Southern District of Florida |
Mark Ondich, who is presently confined at the Central Florida Reception Center in Orlando, Florida, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, attacking his conviction and sentence in case number 08-13785 CF 10A, entered in the Seventeenth Judicial Circuit Court of Broward County.
This cause has been referred to the undersigned for consideration and report pursuant to 28 U.S.C. § 636(b)(1)(B) and Rules 8 and 10 of the Rules Governing Section 2254 Cases in the United States District Courts.
The court has before it the petition for writ of habeas corpus (DE#1), Petitioner's memorandum of law in support thereof (DE#4), Petitioner's verification of his petition (DE#12), Respondent's response to an order to show cause and appendix of exhibits (DE#16), Petitioner's reply (DE#17), Petitioner's Notice of Typographical Error (DE#18), and the documents appended to Petitioner's Motion to Take Judicial Notice (DE#27).
Petitioner's sole claim in this proceeding is ineffective assistance resulting in an unknowing and involuntary guilty plea.
Petitioner was charged by the State of Florida with three counts of sexual battery using great force, one count of kidnapping, and one count of domestic battery by strangulation, all perpetrated on the same victim on July 19, 2008. (DE#16, Exhibit 2).
At a pretrial hearing on September 10, 2009, at 12:15 p.m., the prosecutor told the judge that Petitioner was facing four life felonies and that the State had offered Petitioner a below guidelines plea offer of seventeen years, followed by thirty years of probation. (See Id. at Exhibit 3.5). Defense counsel noted at this pretrial hearing that he had never anticipated that the State would be making such a (favorable) offer and that there was a 911 call that captured the entire sexual battery, but he was ready to go to trial if Petitioner did not take the plea offer. (Id.). Defense counsel noted Petitioner had to decide whether or not to accept the offer. (Id.). The judge added that there were some phone calls that Petitioner made from the jail that allegedly incriminated Petitioner. (Id.). The judge stated that if Petitioner was convicted of even one count of sexual battery, he would get life in prison and never get out. (Id.). The judge asked Petitioner if he was interested in that offer at all, and Petitioner responded that he wanted to go to trial. (Id.). The parties then discussed trial preparations. (Id.)
After Petitioner rejected the plea offer, Petitioner stated that he wanted to listen to a 911 tape that had been recorded. (Id. at Exhibit 22, p.10). The entire 911 tape was played for Petitioner in the courtroom at 2:30 that same afternoon, September 10, 2009. (Id. at 10). A tape of a jailhouse call between Petitioner and his uncle was also played for Petitioner in the courtroom that afternoon. (Id. at 11).
Following the playing of the tapes, Petitioner accepted the plea offer and entered a plea the next day (DE#16, Exhibit 22, p.11; Exhibit 4, p.13). At the change of plea hearing on September 11, 2009, counsel explained that Petitioner, after reviewing the State's evidence, had decided to enter a plea to the instant charges. (Id. at Exhibit 4, p.14). The judge reminded Petitioner that he was charged with three counts of sexual battery with great force, a first degree felony punishable by life in prison. (Id. at 16). The prosecutor added that these were mandatory life sentences; the judge accepted that. (Id.). The judge reminded Petitioner that he was charged with a fourth count, kidnapping, which was a felony punishable by life, and a fifth count, felony battery, which was a third degree felony punishable by up to five years in prison. (Id.).
The judge found a factual basis for the plea based on the probable cause affidavit and stipulation of the parties. (Id. at 19-20). After the plea colloquy with Petitioner, the judge accepted the plea. (Id at 16-22). At the end of the plea hearing, Petitioner stated that he had wanted the opportunity to listen to the tapes, which he had not prior to his initial rejection of the plea offer, and that he "made his decision based on that." (Id. at 23).
Petitioner's change-of-plea form showed that Petitioner was facing the possibility of four consecutive life sentences on counts one through four, plus a five-year sentence on count five. (DE#16, Exhibit 3). Petitioner's scoresheet showed that Petitioner scored a lowest permissible prison sentence of 351.825 months (or 29.32 years) in prison. (Id. at Exhibit 7). However, Petitioner entered a negotiated plea of no contest to the charges on September 11, 2009, in exchange for a downward departure sentence of seventeen years in prison. (Id. at Exhibits 3, 4). Accordingly, he was adjudicated guilty and sentenced to a downward departure sentence of seventeen years in prison as a sexual predator, followed bythirty years of sexual offender probation. (Id. at Exhibit 4, p.8; Exhibit 6).
On October 8, 2009, Petitioner filed a motion to withdraw his guilty plea, asserting that he was unaware of his ability to challenge the admission of his statements to police and the 911 call, and that he was unaware that he could not be convicted of three counts of sexual battery on double jeopardy grounds. (Id. at Exhibit 9). Following a response by the State, the trial court denied the motion to withdraw plea. (Id. at Exhibits 11, 12). Petitioner appealed to the District Court of the State of Florida, Fourth District, in case number 4D09-5355. (Id. at Exhibit 13). Petitioner asserted on appeal that the trial court erred in not conducting an evidentiary hearing as to the merits of the motion to withdraw plea, or alternatively, by not accepting as true the allegations in the motion which were not conclusively repudiated by the record. (Id. at Exhibit 14). On December 21, 2011, the Fourth District per curiam affirmed the summary denial of Petitioner's motion to withdraw plea without comment. Ondich v. State, 76 So. 3d 311 (Fla. 4th DCA 2011).
On February 5, 2013, Petitioner filed a motion for state post-conviction relief pursuant to Fla.R.Crim.P. 3.850, through counsel. (DE#16, p.4).1 The motion had the incorrect case number on the caption, but referenced the correct case number on the second page in the statement of facts. (DE#17, Exhibit A). The basis of that motion was that Petitioner was misadvised that he faced a mandatory life sentence if he were convicted at trial. (Id.).
On June 12, 2013, counsel filed a motion to correct scrivener's error or, in the alternative, for leave to amendPetitioner's 3.850 motion. (DE#16, Exhibit 18). The motion explained that the original 3.850 motion inadvertently listed the case number for the deposition of the victim and that, when the judge issued an order for the State to respond, the State did indeed respond and noted the error in the case number. (Id.). The motion thus requested that the scrivener's error be corrected and that the State be ordered to respond under the correct case number or, in the alternative, that Movant be granted leave to file an amended motion dated nunc pro tunc to the date of the original filing. (Id.).
It is unclear what happened to Petitioner's motion to amend or, in the alternative, to file an amended motion dated nunc pro tunc to the date of the original filing. All that can be gleaned from the online docket and the exhibits that the State has filed is that, on June 12, 2013, the Court received the amended 3.850 motion reflecting the corrected case number raising the same single ground for relief, and that the state court ordered the State to respond on that same date. (DE#16, Exhibit 19, 20).
A hearing was held on Petitioner's 3.850 motion on November 21, 2014. (Id. at Exhibit 22). Among the exhibits submitted at the hearing were the 911 call which contained a graphic audio recording of Petitioner's sexual assault on the victim, and Petitioner's jail call to his Uncle Frankie in which he admitted raping the victim. (See, generally, Id.).
At the evidentiary hearing on Petitioner's amended Rule 3.850 motion, Petitioner claimed that he would not have taken the plea bargain if he had been advised that the sexual battery charges were not mandatory life offenses, and would have proceeded to trial instead. (DE#16, Exhibit 22, p.14). Petitioner asserted the 911 tapes were factored into his decision but it was not the sole basis of his decision. (Id.). Petitioner denied being aware that the seventeen-year sentence was a downward departure from thesentencing guidelines despite its being mentioned at the September 10, 2009, discussion about the plea offer. (Id. at p.15). He claimed he did not recall if he was ever told that he scored out to twenty-nine years under the sentencing guidelines. (Id.).
On cross-examination, Petitioner admitted that the written change of plea form he signed and initialed said that his maximum sentence was "life times four plus five years Florida State prison." (Id. at p.18). He further admitted that the plea form did not say anything about the sentences being mandatory. (Id.). Petitioner claimed that, although it was his initials and signature on the plea form, (Id.). Petitioner did admit that he initialed the part of the form stating that he had read the form and he understood it, and he signed the form. (Id. at p.19). He admitted that he had stated during the plea colloquy on September 11, 2009, that he had reviewed the form with his attorney and initialed and signed it. (Id. at p.20).
Petitioner admitted that he rejected the plea offer on September 10, 2009, even though he was told at that time he was facing a mandatory life...
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