Sochor v. State, No. SC01-885

Citation883 So.2d 766
Decision Date08 July 2004
Docket Number No. SC01-885, No. SC02-1797.
PartiesDennis SOCHOR, Appellant, v. STATE of Florida, Appellee. Dennis Sochor, Petitioner, v. James V. Crosby, Jr., etc., Respondent.
CourtUnited States State Supreme Court of Florida

Rachel L. Day, Assistant CCRC, Kenneth M. Malnik, Assistant CCRC and Paul E. Kalil, Assistant CCRC, Capital Collateral Regional Counsel — Southern Region, Fort Lauderdale, FL, for Appellant.

Charles J. Crist, Jr., Attorney General and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, FL, for Appellee.


Dennis Sochor, an inmate under sentence of death, appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. He also petitions this Court for a writ of habeas corpus.1 For the reasons expressed below, we affirm the order of the circuit court and deny the habeas petition.


Sochor was convicted of kidnapping and first-degree murder.2 In accordance with the jury's ten-to-two recommendation, the judge sentenced Sochor to death, finding four aggravating circumstances3 and no mitigating circumstances. Sochor v. State, 580 So.2d 595, 599 (Fla.1991). On direct appeal, we found that the evidence was not sufficient to meet the heightened level of premeditation necessary for the "cold, calculated, and premeditated" aggravating circumstance. Id. at 603. Nevertheless, we affirmed the convictions and the death sentence, holding that in light of the other aggravating circumstances which the trial court found and the absence of mitigating circumstances, the death sentence was proportionate and no resentencing was required. Id. at 604.

The United States Supreme Court granted certiorari, vacated the sentence, and remanded the case, holding that we failed to perform a harmless error analysis. Sochor v. Florida, 504 U.S. 527, 540, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992). On remand, we held that the trial judge's weighing of the invalid aggravating factor was "harmless error," and we therefore affirmed Sochor's death sentence. Sochor v. State, 619 So.2d 285, 293 (Fla.1993).

Sochor then filed a rule 3.850 motion for postconviction relief in which he raised thirty claims.4 Following a Huff hearing,5 the circuit court granted a limited evidentiary hearing.6 After the evidentiary hearing, the circuit court denied the motion for postconviction relief. Sochor now appeals the circuit court's denial.7 He also petitions for a writ of habeas corpus.8 As stated above, we affirm the circuit court's denial of relief and deny the habeas petition.

II. RULE 3.850
A. Penalty Phase Ineffectiveness of Counsel

Sochor argues that he was deprived of his Sixth Amendment right to effective assistance of counsel because his lawyer failed to investigate, prepare, and present evidence that would support the existence of two statutory mitigating circumstances and several nonstatutory mitigating circumstances. He claims that counsel did not thoroughly investigate his background and did not provide any information about his background to the mental health experts who evaluated him, rendering their evaluations inadequate for the purpose of developing evidence of mitigating circumstances. He also claims that counsel did not adequately prepare his penalty phase lay witnesses before they testified. Sochor argues that this deficiency in his counsel's performance prevented the jury and the judge from understanding the true nature and extent of his troubled background and mental health status. As a result, he argues, the outcome of the penalty phase was unreliable. He argues that there is a reasonable probability that he would not have been sentenced to death had counsel not been deficient.

To be entitled to relief on this claim, Sochor must show that his attorney's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003)

; Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). To satisfy the deficiency prong, Sochor must show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687,

104 S.Ct. 2052. Sochor must demonstrate that counsel's representation "fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. If Sochor can establish that counsel's performance was deficient, he must then "show[] that counsel's errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable." Id. at 687, 104 S.Ct. 2052. In other words, in order to establish the prejudice prong, Sochor "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. As the Court explained in Strickland, "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. In the penalty phase context, "the question is whether there is a reasonable probability that, absent the errors, the sentencer... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 695, 104 S.Ct. 2052.

When we review a circuit court's resolution of a Strickland claim, as we do here, we apply a mixed standard of review because both the performance and the prejudice prongs of the Strickland test present mixed questions of law and fact. See id. at 698, 104 S.Ct. 2052 ("Ineffectiveness is ... a mixed question of law and fact."); Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). We defer to the circuit court's factual findings, but we review de novo the circuit court's legal conclusions. Stephens, 748 So.2d at 1033 ("Thus, under Strickland, both the performance and prejudice prongs are mixed questions of law and fact, with deference to be given only to the lower court's factual findings."); see also Hodges v. State, 28 Fla. L. Weekly S475, S476, 2003 WL 21402484 (Fla. June 19, 2003) ("Ineffective assistance of counsel claims are mixed questions of law and fact, and are thus subject to plenary review based on the Strickland test. Under this standard, the Court conducts an independent review of the trial court's legal conclusions, while giving deference to the trial court's factual findings.") (citation omitted). With these principles in mind, we now analyze Sochor's ineffective assistance of counsel claim.

1. The Deficiency Prong

We agree with Sochor that his counsel's penalty-phase performance was deficient. Our review of the penalty-phase transcript and the evidentiary-hearing testimony reveals that Sochor's counsel put little time or effort into preparing expressly for the penalty phase.9

The only witnesses counsel presented at the penalty phase were four members of Sochor's family. One of these witnesses, a sister, was not even contacted by counsel. She learned about the penalty phase from another relative and traveled to Florida on her own. When she arrived, she told counsel that she wanted to testify; counsel quickly glanced at a statement she had prepared and told her she could read it to the jury. The other three witnesses received no more preparation from counsel. Counsel simply asked them to prepare statements to read to the jury. In addition to these lay witnesses, counsel introduced the reports of three mental health experts who testified during the guilt phase. However, counsel did not provide these experts with any information about Sochor's background, nor did he specifically instruct them to examine and evaluate Sochor for the purpose of establishing mitigating evidence.

Based on these undisputed facts, counsel's performance was clearly deficient, and the circuit court's holding to the contrary was erroneous. See State v. Lewis, 838 So.2d 1102, 1113 (Fla.2002)

("[T]he obligation to investigate and prepare for the penalty portion of a capital case cannot be overstated — this is an integral part of a capital case."); Rose v. State, 675 So.2d 567, 571 (Fla.1996) ("An attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence.") (quoting Porter v. Singletary, 14 F.3d 554, 557 (11th Cir. 1994)).

2. The Prejudice Prong

We now must determine whether Sochor established that he was prejudiced by counsel's deficient performance. See Wiggins, 123 S.Ct. at 2542

("In order for counsel's inadequate performance to constitute a Sixth Amendment violation, petitioner must show that counsel's failures prejudiced his defense.").10 As we noted above, in order for Sochor to establish that counsel's deficient performance prejudiced his defense, he "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the [penalty-phase] proceeding would have been different." Strickland, 466 U.S. at 694,

104 S.Ct. 2052; see also Wiggins, 123 S.Ct. at 2542.11

The circuit court held that Sochor had not established prejudice. As we explain below, inherent in the circuit court's conclusion, made after hearing the conflicting testimony presented at the evidentiary hearing, is the factual finding (which we conclude is supported by competent, substantial evidence) that even if defense counsel had adequately investigated Sochor's background and prepared for the penalty phase, he would not have been able to present at the penalty phase any evidence significantly different from the evidence actually presented.12 Deferring to this factual finding, we agree with the circuit court's conclusion that Sochor failed to show a reasonable probability that absent counsel's errors, he would not have been sentenced to death. To explain why, we will recount the pertinent penalty-phase...

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