Earl C. Ogden v. State of Florida

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-4040

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EARL C. OGDEN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Duval County.

Mark Borello, Judge.

March 13, 2019

PER CURIAM.

Appellant seeks review of a final order summarily denying his

motion for postconviction relief, which raised two claims of

ineffective assistance of counsel. We affirm the summary denial of

Appellant’s first claim without discussion. However, we reverse

the summary denial of Appellant’s second claim that defense

counsel was ineffective for failing to advise Appellant that he was

facing a mandatory life sentence as a prison releasee reoffender

when the State made a plea offer of fifteen years in prison as a

prison releasee reoffender, which it later withdrew.

Appellant alleged that if defense counsel had advised him of

the maximum sentence he faced when the State made the plea

offer, he would have accepted the offer instead of leaving the offer

open, which resulted in the offer being withdrawn. If true, defense

counsel’s failure to advise Appellant of the maximum sentence

when discussing the plea offer constituted deficient performance.

As this court has observed:

Our precedent requires attorneys to inform their

clients of the maximum sentences they may face when

advising them as to whether to reject a plea offer.

Although counsel in the instant case was advising his

client to leave an offer open, rather than to reject it

outright, knowledge of the statutory maximum was vital

to an informed decision as to whether to accept the offer

or leave it open, thus risking its withdrawal.

Pennington v. State, 34 So. 3d 151, 156 (Fla. 1st DCA 2010)

(emphasis added). * Furthermore, Appellant sufficiently alleged

* To the extent that the dissent advocates a “bright line” rule

prohibiting any claim of ineffective assistance of counsel unless a

defendant alleges either counsel’s failure to convey a plea offer or

misadvice urging the rejection of a plea, this unduly limits defense

counsel’s duty to “advise defendant of . . . all pertinent matters

bearing on the choice of which plea to enter and the particulars

attendant upon each plea and the likely results thereof, as well as

any possible alternatives that may be open to the defendant.” Fla.

R. Crim. P. 3.171(c)(2)(B); see also Odegaard v. State, 137 So. 3d

505, 508 (Fla. 2d DCA 2014); Rivera v. State, 128 So. 3d 876, 877

(Fla. 2d DCA 2013). The dissent alleges that Appellant’s claim is

legally insufficient because he never alleged that he rejected the

State’s plea offer due to counsel’s lack of proper advice. However,

the fact that Appellant alleged that he asked for more time to

consider the plea offer—rather than rejecting it outright—is a

distinction without a difference. In both cases, the alleged

prejudice is the same, i.e., Appellant failed to accept a more

favorable plea offer due to counsel’s alleged ineffectiveness. It

matters not whether the failure to accept was an outright rejection

of the offer or failure to accept the offer before it was withdrawn.

Pennington, 34 So. 3d at 156. In fact, it could be argued that

Appellant’s request for more time makes for a more compelling

claim because it suggests that Appellant was seriously considering

the offer and might have accepted it before it was withdrawn if he

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that he was prejudiced because (1) he would have accepted the plea

offer if he had been properly advised; (2) the prosecutor would not

have withdrawn the offer; (3) the court would have accepted the

offer; and (4) the sentence would have been less severe than the

sentence that was in fact imposed. Alcorn v. State, 121 So. 3d 419,

430 (Fla. 2013).

Contrary to the trial court’s conclusion, Appellant’s claim is

not conclusively refuted by the record of Appellant’s subsequent

plea because “‘[p]rejudice . . . is determined based upon a

consideration of the circumstances as viewed at the time of the offer

and what would have been done with proper and adequate advice.’”

Armstrong v. State, 148 So. 3d 124, 126 (Fla. 2d DCA 2014)

(quoting Alcorn, 121 So. 3d at 432) (emphasis in original); accord

Smith v. State, 219 So. 3d 978, 979 (Fla. 1st DCA 2017); see also

Wilson v. State, 189 So. 3d 912, 913 (Fla. 2d DCA 2016) (holding

that “events occurring after Mr. Wilson rejected the plea offer

could not cure counsel’s alleged failure to provide him with all of

the information necessary to make an informed decision

concerning the offer”).

Accordingly, we reverse the summary denial of Appellant’s

second claim and remand for an evidentiary hearing. See Smith,

219 So. 3d at 979 (reversing the summary denial of the defendant’s

postconviction claim that defense counsel was ineffective for

failing to advise him that he qualified for a mandatory sentence

under the prison releasee reoffender statute prior to his rejection

of two plea offers); Armstrong, 148 So. 3d at 126 (reversing the

summary denial of the defendant’s postconviction claim that

counsel was ineffective for failing to inform him of the maximum

sentence and the possibility of a fifteen-year mandatory minimum

sentence as a prison releasee reoffender during plea negotiations,

resulting in the rejection of a favorable plea of forty-eight months

in prison); Mathis v. State, 848 So. 2d 1207, 1208-09 (Fla. 1st DCA

2003) (reversing the summary denial of the defendant’s

had been properly advised. Different from the dissent’s assertion,

there is nothing facially unreasonable about this allegation such

that it would be proper to summarily deny it without an

evidentiary hearing.

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postconviction claim that defense counsel was ineffective for

failing to advise him that he could be sentenced as a prison

releasee reoffender if convicted at trial, resulting in the rejection

of the State’s plea offer to a lesser included offense).

AFFIRMED in part, REVERSED in part, and REMANDED with

directions.

BILBREY and JAY, JJ., concur; WINOKUR, J., concurs in part and

dissents in part with opinion.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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WINOKUR, J., concurring in part and dissenting in part.

I agree with the majority that the part of the order regarding

the affirmative defense should be affirmed. I disagree, however,

that Ogden is entitled to an evidentiary hearing on his claim

regarding the plea offer.

In Missouri v. Frye, 566 U.S. 134 (2012) and Lafler v. Cooper,

566 U.S. 156 (2012), the United States Supreme Court ruled that

a defendant who does not accept a plea offer due to deficient

performance of counsel may, in some circumstances, demonstrate

ineffective assistance of counsel. The Florida Supreme Court

adopted the prejudice analysis of Frye and Lafler in Alcorn v. State,

121 So. 3d 419 (Fla. 2013). Due to the relative recency of these

decisions, I believe it is important to define specifically the duties

of counsel with regard to a plea offer made by the State. In my

view, counsel’s failure to advise Ogden of the effect his status as a

prison releasee reoffender (PRR) had on his possible sentence, at

the time that Ogden claims his counsel should have informed him,

is insufficient to establish an ineffective-assistance claim. As such,

I believe the trial court was correct in denying this claim without

an evidentiary hearing.

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I.

Ogden was charged with armed burglary of a dwelling, a first-

degree felony punishable by life imprisonment (PBL).

§ 810.02(2)(b), Fla. Stat. He qualified for sentencing as a PRR and

a habitual felony offender. PRR sentencing on the charged crime

would have required a life sentence. § 775.082(9)(a)3.a., Fla. Stat.

At arraignment, Ogden alleged that the assistant state attorney

offered to reduce the charge to burglary of a dwelling (a second-

degree felony), which would carry a fifteen-year sentence as a PRR,

in exchange for a guilty plea. §§ 810.02(3)(b), 775.082(9)(a)3.c., Fla.

Stat. Ogden claimed that counsel did not advise him at that time

that if the State sought PRR sentencing after trial on the charged

crime it would carry a mandatory life term, rather than a

maximum life term. Based on this omission, Ogden alleged that he

“told [t]rial counsel to ask for more time to think about it.”

About seven weeks later, a new prosecutor took over the case.

After various continuances and several months passing (and one

more change of prosecutor), Ogden’s counsel submitted a written

proposal to accept the offer, almost nine months after the offer was

made. Ogden alleged that the then-current prosecutor (twice

removed from the prosecutor who made the offer) rejected the offer

and counteroffered twenty years as a habitual felony offender with

fifteen years mandatory as a PRR, in exchange for a guilty plea to

burglary of a dwelling. Ogden claims he accepted in light of the

mandatory life provision of the PRR. He claims that he would have

accepted the first offer back at arraignment if counsel had advised

him that he faced mandatory life as a PRR. The trial court rejected

the claim without evidentiary hearing.

II.

Frye sets forth the standard to be applied “where a plea offer

has lapsed or been rejected because of counsel’s deficient

performance.” 566 U.S. at 147. Thus, the Frye standard, adopted

by the Florida Supreme Court in Alcorn, applies when there has

been a lapse of a plea offer or a rejection of a plea offer. Here,

Ogden did not allege that he rejected the plea offer, much less

rejected it because of counsel’s deficient performance. However, it

is arguable that the offer lapsed, in that the prosecutor refused to

accept the offer some nine months later. But this is not what the

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Supreme Court meant by “lapse.” In Frye, the defendant alleged

that counsel failed to convey a plea offer to him. Id. at 138-39.

Counsel’s performance was deficient not because the offer lapsed

before the defendant accepted it, but because it lapsed before

counsel even told the defendant about it. Indeed, the only Florida

case that discusses ineffective assistance for a “lapsed” plea offer

is Mitchell v. State, 197 So. 3d 1271 (Fla. 2d DCA 2016), which also

involved an allegation that counsel failed to convey a plea offer. 1

In fact, cases around the country that discuss ineffective

assistance for allowing a plea offer to lapse involve counsel failing

to convey the offer to the defendant. 2

1 The cases cited by the majority involve plea offers rejected

due to misadvice, so they do not apply. See Smith v. State, 219 So.

3d 978 (Fla. 1st DCA 2017); Wilson v. State, 189 So. 3d 912 (Fla.

2d DCA 2016); Armstrong v. State, 148 So. 3d 124 (Fla. 2d DCA

2014); Pennington v. State, 34 So. 3d 151 (Fla. 1st DCA 2010);

Mathis v. State, 848 So. 2d 1207 (Fla. 1st DCA 2003). These cases

do not suggest that counsel has a nebulous requirement to give

advice quickly enough to beat out a potential (but again unknown)

withdrawal of the offer. Such a requirement does not exist and, as

stated, should not exist. Instead, these cases involve advice that

leads the defendant to actually reject a plea offer. Pennington does

not hold otherwise. Pennington merely states what counsel must

do “when advising [a client] as to whether to reject a plea offer.” 34

So. 3d at 156. Any implication that this case imposes a duty on

counsel to impart information to the client at some unknown time,

regardless of whether counsel advises the client to reject the offer,

is belied by Pennington’s testimony that “trial counsel advised him

to reject the offer.” Id. at 154.

2 See, e.g., Payton v. State, 2018 WL 3853511, at *2 (Miss. Ct.

App. Aug. 14, 2018); Helmedach v. Comm’r of Corr., 148 A.3d 1105,

1117 (Conn. App. 2016), aff’d, 189 A.3d 1173 (Conn. 2018);

Robinson v. State, 486 S.W.3d 201 (Ark. 2016); Smith v. State, 443

S.W.3d 730 (Mo. App. 2014); Chapa v. State, 407 S.W.3d 428, 434

(Tex. Crim. App. 2013).

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Lafler, in contrast, involved a defendant who explicitly

rejected a plea offer due to misadvice of counsel. Lafler, 566 U.S.

at 161 (holding that counsel for defendant, charged with assault

with intent to murder, was ineffective for advising the defendant

to reject the state’s plea offer on the false premise that the

prosecution would be unable to establish intent to murder because

the victim had been shot below the waist). Thus, Frye and Lafler

together stand for the proposition that counsel can be ineffective

for 1) failing to convey a plea offer to the defendant before it lapses

(Frye) or 2) misadvising the defendant to reject a plea offer (Lafler).

Put another way, unless the defendant alleges that counsel failed

to convey a plea offer, the only way to demonstrate ineffective

assistance for failing to accept a plea offer is to allege that the offer

was rejected due to misadvice. 3

III.

Ogden has failed to demonstrate that Frye, Lafler, or Alcorn

apply here. As such, he has not alleged a legally-sufficient claim

that counsel was ineffective. Counsel neither failed to convey the

plea offer to Ogden before it lapsed, nor counseled him to reject the

plea offer based on misadvice or lack of advice. In most cases, I

believe that we should require such allegations in order to clearly

establish what is expected of counsel with respect to plea offers:

convey all plea offers to the defendant before they lapse, and do not

advise rejection of a plea offer based on misinformation or lack of

required information. Without generally requiring that the bad

advice leads the defendant to reject the offer, we are left with no

guidance as to when and exactly what counsel is required to inform

a defendant regarding a plea offer.

3 It should be noted that Alcorn, where the Florida Supreme

Court specifically adopted Frye and Lafler, also involves actual

rejection of a plea offer: “This case involves ineffective assistance

of counsel claims arising out of counsel’s failure to correctly inform

the defendant of the maximum penalty he faced before rejecting a

plea offer.” Alcorn, 121 So. 3d at 421-22 (emphasis supplied).

Alcorn stands for the proposition that rejection of a plea offer

caused by lack of proper advice can support an ineffective-

assistance claim.

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It is not enough for a movant claiming ineffective assistance

for failure to take a plea offer to allege that he or she would have

accepted the offer but for bad advice or lack of advice. The movant

must also allege that the bad advice or lack of advice constituted

deficient performance. Deficient performance is defined as

“particular acts or omissions of the lawyer that are shown to be

outside the broad range of reasonably competent performance

under prevailing professional standards.” Schoenwetter v. State, 46

So. 3d 535, 546 (Fla. 2010) (quoting Maxwell v. Wainwright, 490

So. 2d 927 (Fla. 1986)). An actual rejection of a plea offer based on

misadvice constitutes a particular act or omission that a counsel

can know is deficient performance. Conversely, an amorphous

requirement for counsel to promptly inform the defendant provides

no clear guidance on what constitutes deficient performance or

what is expected of counsel.

I find that it is especially important in this type of case to

require specific action on the part of the defendant that was caused

by counsel’s deficient performance. As a counterexample,

defendants who claim that they accepted plea bargains due to

misadvice actually have something to lose if they prevail on the

claim. If a guilty plea is withdrawn, a defendant might end up with

a worse sentence than the plea agreement had provided.

Conversely, defendants like Ogden, making the opposite claim,

have nothing to lose by making their claim. Ogden took a later,

less favorable plea offer. It comes as no surprise that he believes

now that he should have taken the earlier fifteen-year offer, now

that he has a twenty-year sentence. 4 And unlike the defendant

who claims ineffective assistance for accepting a plea offer, he has

nothing to lose by alleging that counsel is to blame for his failure

to take the fifteen-year offer. For this reason, this type of claim

should be limited to what the supreme court held, which is to

permit an ineffective assistance claim when a plea is not conveyed

to the defendant or it has been “rejected because of counsel’s

4 The same is true for defendants who reject plea deals and

proceed to trial, where they are convicted.

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deficient performance.” Alcorn, 121 So. 3d at 427 (citing Lafler, 566

U.S. at 147) (emphasis supplied).

IV.

Even if we were to impose a requirement that counsel must

inform the defendant of all relevant factors regarding a plea offer

before it lapses, regardless of rejection, I do not believe such a

requirement should be applied here.

A.

First, Ogden does not allege when the offer lapsed, other than

indicating that the prosecutor refused to honor it nearly nine

months later. 5 Ogden himself asked for “more time” to consider the

offer, but it is unknown how long the offer remained. Specifically,

Ogden alleged counsel should have notified him at arraignment of

the mandatory provisions of the PRR.

The majority holds that this allegation is sufficient, that

counsel had an obligation to inform Ogden of the “maximum

sentence” (setting aside whether a PRR sentence is a “maximum

sentence”) “when the State made the plea offer,” and that counsel’s

failure to do so “resulted in the offer being withdrawn.” Maj. op. at

1, 2. Does this mean that counsel was obligated to present

information to Ogden about the effect of PRR sentencing (bearing

in mind that the State had not actually sought PRR sentencing at

the time) right there at arraignment, and that failure to do so

constituted deficient performance? This is, in fact, what Ogden

alleged: “[H]ad Trial Counsel advised Defendant of the [effects of

PRR sentencing] on July 11, 2011, Arraignment date, he would had

affirmatively accepted said plea offer at that point in time”

(emphasis supplied). But I submit that we hold defense counsel to

5 In addition to failing to allege when the offer lapsed or was

withdrawn, I note that Ogden also did not allege that counsel knew

when the offer would lapse or had lapsed. So even if counsel had

an obligation to inform Ogden of the consequences of a PRR

sentence, regardless of whether he advised Ogden to reject it, the

motion is insufficient because it fails to allege that counsel

ineffectively allowed the offer to expire or ineffectively failed to

inform him that the offer would expire.

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an unreasonable standard when we find that failure to fully advise

a client regarding possible sentencing on the very day the offer is

made is “outside the broad range of reasonably competent

performance under prevailing professional standards.”

It is not enough to say that an evidentiary hearing could flesh

these matters out, by gathering evidence of how long the offer

lasted, whether counsel knew when the offer lapsed, whether

counsel informed Ogden of the lapse date, and so on. A

postconviction defendant is entitled to an evidentiary hearing only

when the motion presents “allegations constituting a prima facie

case for relief.” Rivera v. State, 995 So. 2d 191, 200 (Fla. 2008). An

evidentiary hearing is not required to allow a defendant to fill out

his claim for relief by adding facts that do not appear in the motion.

If the movant’s allegations do not support an actual basis for relief,

as opposed to a possible basis for relief, then the court must deny

the motion as legally insufficient. Ogden alleged that his counsel

was required to provide information regarding PRR sentencing on

the day of arraignment, not some unknown future time before the

offer expired. I believe this is an insufficient allegation of deficient

performance.

Moreover, I do not dispute the majority’s contention that a

plea offer can be impliedly rejected, by permitting it to expire

before it is accepted, without an explicit rejection. First, if this

occurred, it would still involve advice by counsel to the client,

resulting in a decision not to accept the offer. If that decision

involves misinformation or lack of required information, it could

support an ineffectiveness claim. Nothing shows that this occurred

here. Second and more importantly, Ogden did not allege “failure

to accept the offer before it was withdrawn.” Maj. op. at 2 n.*. He

alleged only that counsel should have advised him on the day of

arraignment and alleged nothing about when the offer was

withdrawn.

B.

Second, a court is justified in finding it unreasonable that a

defendant who was willing to “think about” a mandatory fifteen-

year plea offer when he was facing life imprisonment if he had gone

to trial would have immediately accepted the offer at arraignment

if he had known he would face mandatory life imprisonment

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instead of the possibility of life imprisonment. This

unreasonableness is a basis to deny Ogden’s motion without

evidentiary hearing. See, e.g., Montero v. State, 996 So. 2d 888, 891

(Fla. 4th DCA 2008) (holding that a court need not hold an

evidentiary hearing on a postconviction motion “where the

allegations are ‘inherently incredible’”); Evans v. State, 843 So. 2d

938, 940 (Fla. 3d DCA 2003) (finding that a postconviction

movant’s claim that he would not have entered his plea was “so

thoroughly contrary to common sense as to be inherently

incredible, and does not warrant a hearing”).

C.

Finally, I disagree that Florida Rule of Criminal Procedure

3.171(c)(2)(B) establishes an effective-assistance standard for

defense counsel to observe in the plea-offer context. This rule

requires counsel to advise a defendant of “all pertinent matters

bearing on the choice of which plea to enter and the particulars

attendant upon each plea and the likely results thereof.” I do not

believe this subsection establishes a standard to apply to these

cases for three reasons. First, this subsection only requires advice

about plea choices and their effects. In other words, before a

defendant enters a plea, defense counsel is required to discuss

these matters with the client. The subsection says nothing about

advice requirements regarding plea offers. Second, the rule was

amended in 1977 to require counsel to advise the defendant of “all

plea offers.” Fla. R. Crim. P. 3.171(c)(2)(A). See The Florida Bar,

343 So. 2d 1247, 1253 (Fla. 1977). The fact that subsection (A)

specifically mentions “plea offers” suggests that subsection (B) is

not meant to apply to plea offers. Third, even if this subsection did

establish a standard, it is not inconsistent with the position that a

claimant cannot establish ineffective assistance for failure to take

a plea offer unless bad advice has led to a rejection of the offer.

V.

Because Ogden did not allege that counsel failed to convey the

plea offer, or advised him to reject the offer based on misadvice or

lack of required advice, I do not believe that he made a sufficient

claim of ineffective assistance of counsel. We should affirm that

portion of the trial court’s order.

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Earl C. Ogden, pro se, Appellant.

Ashley B. Moody, Attorney General, and Daniel Krumbholz,

Assistant Attorney General, Tallahassee, for Appellee.

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