Solorzano v. State, 2D07-5664.

• Decision Date: 13 November 2009
• Docket Number: No. 2D07-5664.,2D07-5664.
• Citation: 25 So.3d 19
• Parties: Ronald Ray SOLORZANO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

25 So.3d 19

Ronald Ray SOLORZANO, Appellant, v. STATE of Florida, Appellee.

No. 2D07-5664.

District Court of Appeal of Florida, Second District.

November 13, 2009.

Jackson S. Flyte, Regional Counsel, Second District, and Mark P. Brewer, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Ronald Ray Solorzano appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction court summarily denied seven of Solorzano's nine grounds for relief and denied the remaining two grounds after an evidentiary hearing. We affirm in part, reverse in part, and remand for further proceedings.

Background

Solorzano was charged with one count of DUI manslaughter and three counts of DUI with serious bodily injury following events that occurred on March 9, 2003. The evidence at trial showed that Solorzano had spent the afternoon and evening of March 9 at Gilligan's Bar with a group of friends and co-workers. At some point in the evening, one of Solorzano's co-workers, Ida D'Ettorre, became too drunk to drive and was feeling ill. Solorzano offered to drive Ms. D'Ettorre home. While doing so, Solorzano lost control of his truck, crossed the center median, and collided with four people on two motorcycles. One of the motorcyclists was killed; the other three suffered serious injuries.

Solorzano's defense at trial was that he was not intoxicated when the accident occurred. He contended that he had had only two or three beers during his six or seven hours at Gilligan's and that he had been eating during that time as well. He contended that he lost control of his truck only because Ms. D'Ettorre vomited on him while he was driving. He also contended that his blood alcohol level was due to his having taken Nyquil for a cold rather than due to his drinking at the bar. The jury apparently rejected these defenses, and it found Solorzano guilty as charged. The trial court sentenced Solorzano to 23.14 years in prison followed by five years' probation. This court affirmed Solorzano's judgment and sentence on direct appeal. Solorzano v. State, No. 2D04-2061 (Fla. 2d DCA June 22, 2005).

Solorzano timely filed a motion for postconviction relief, raising nine grounds for relief. The postconviction court summarily denied grounds one, four, five, six, seven, eight, and nine. It held an evidentiary hearing on grounds two and three, after which it denied those grounds as well. We affirm the denial of grounds one, two, three, and nine without further discussion. We also affirm the denial of grounds four and seven, but we write to explain our reasoning. As to ground five, we reverse and remand for reconsideration of this claim on its merits. Finally, as to grounds six and eight, we reverse and remand for further proceedings.

Ground Four

In ground four of his motion, Solorzano alleged that his trial counsel was ineffective for failing to move to strike prospective juror Wasson, either peremptorily or for cause, after she stated during voir dire that she would want to hear "everything from everybody" before she made a decision. Solorzano alleged that this could be interpreted as Wasson placing the burden on the defense to come forward with testimony and evidence but that trial counsel never questioned Wasson about this. Solorzano alleged that he was prejudiced because there was a reasonable doubt that Wasson, who actually sat on his jury, would not be impartial if Solorzano introduced no evidence and therefore Wasson was unable to hear "everything from everybody."

The postconviction court denied this claim, attaching the portions of the transcript of jury selection during which Wasson was questioned. The postconviction court noted that these excerpts established that Wasson was not actually biased against Solorzano, and thus the court concluded that Solorzano could not state a facially sufficient claim of juror bias under the requirements set forth in Carratelli v. State, 915 So.2d 1256 (Fla. 4th DCA 2005), review granted, 935 So.2d 499 (Fla.2006).¹ It is apparent from the limited postconviction record that the court denied this claim on its merits rather than for pleading deficiencies.

While we agree with the postconviction court's decision to deny Solorzano relief on this claim on its merits, we do so for a different reason. A review of the claim actually made by Solorzano shows that he did not attempt to allege that Wasson was a biased juror who was seated on the jury. Thus, the resolution of this claim was not governed by Carratelli v. State, 961 So.2d 312 (Fla.2007). Instead, the substance of Solorzano's claim was that counsel was ineffective for failing to conduct a meaningful voir dire of Wasson after she made the statement at issue. Solorzano contended that had counsel conducted further questioning of Wasson, counsel might have uncovered a basis to challenge her for cause. Alternatively, Solorzano alleged that further questioning could have resulted in trial counsel using a peremptory strike against Wasson. In essence, Solorzano alleged that counsel was ineffective for failing to conduct a meaningful voir dire of Wasson that would have allowed counsel to intelligently and effectively use challenges—whether cause or peremptory challenges—against this juror.

Even with the claim understood in this manner, however, Solorzano is not entitled to relief. A claim that counsel was ineffective for failing to "follow-up" on questioning to establish grounds for a for-cause challenge has been held to be legally insufficient because such a claim can be based on nothing more than conjecture by the defendant. See Reaves v. State, 826 So.2d 932, 939 (Fla.2002) (holding that when the record does not show a reasonable basis to assert a for-cause challenge, a claim by the defendant that more information would have been forthcoming had counsel properly followed up with further questioning is mere conjecture and thus is not a legally sufficient claim for postconviction relief); see also Green v. State, 975 So.2d 1090, 1105 (Fla.2008) (following Reaves); cf. Davis v. State, 928 So.2d 1089, 1118 (Fla. 2005) (holding that allegations that counsel was ineffective for failing to "follow up" with certain jurors in an effort to rehabilitate them to avoid cause challenges by the State was legally insufficient because the allegations were based on nothing but conjecture). Further, to the extent that Solorzano claims that further questioning might have led counsel to use his peremptory challenges in a different manner, the claim is also based on pure speculation that will not support a claim of ineffective assistance of counsel. See Johnson v. State, 921 So.2d 490, 503-04 (Fla.2005) ("To show prejudice, Johnson argues that [defense counsel] could possibly have learned more about the jurors' views and used his peremptory challenges in a different manner to obtain a more defense-friendly jury. Such speculation fails to rise to the level of ineffective assistance under Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]." (footnote omitted)).

Accordingly, because Solorzano's claim of ineffectiveness in ground four is based on nothing more than speculation, it is legally insufficient and was properly denied by the postconviction court. Further, because the claim was denied on its merits, Solorzano is not entitled to leave to amend under Spera v. State, 971 So.2d 754, 761 (Fla.2007) (requiring that a defendant be given at least one opportunity to amend a facially insufficient claim for relief in a motion filed pursuant to rule 3.850). Therefore, we affirm the denial of relief on this ground.

Ground Five

Ground five of Solorzano's motion is similar to ground four but requires a different result. In ground five, Solorzano alleged that trial counsel was ineffective for failing to question prospective juror Coyne at all during voir dire. Solorzano also alleges that "neither court, state, or defense counsel" questioned Coyne, but nevertheless Coyne was subsequently seated on the jury. The postconviction court denied Solorzano relief on this ground, stating that Solorzano had failed to "allege how the juror was incompetent or, for that matter, biased against him such that the juror should not have served on his case."

As with ground four, it appears from the postconviction court's ruling that it was analyzing Solorzano's claim as one of juror bias under Carratelli. But, as with ground four, our reading of Solorzano's claim is that it alleges a claim based on ineffective assistance of counsel for failing to conduct a meaningful voir dire—not the failure of counsel to properly preserve a challenge for cause, which was the issue addressed in Carratelli.

Claims based on ineffective assistance of counsel for failing to conduct a meaningful voir dire implicate the defendant's constitutional right to have his case tried before a fair and impartial jury.

Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled. See Connors v. United States, 158 U.S. 408, 413, 15 S.Ct. 951, 953, 39 L.Ed. 1033 (1895). Similarly, lack of adequate voir dire impairs the defendant's right to exercise peremptory challenges where provided by statute or rule, as it is in the federal courts.

Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981) (footnote omitted); see also Lavado v. State, 469 So.2d 917, 919 (Fla. 3d DCA 1985) (Pearson, J., dissenting), dissent adopted by Lavado v. State, 492 So.2d...