Petition for Writ of Certiorari — Albert Enrique Narvaez, Petitioner v. Florida

No._________

IN THE

SUPREME COURT OF THE UNITED STATES

___________

ALBERT ENRIQUE NARVAEZ,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

___________

On Petition for a Writ of Certiorari to the

District Court of Appeal for the

Fourth District of Florida

__________________________________________

PETITION FOR A WRIT OF CERTIORARI

__________________________________________

ROBERT DAVID MALOVE

The Law Office of

Robert David Malove, P.A.

200 SE 9th Street

Fort Lauderdale, FL 33316

(954) 861-0384

Counsel of Record

Attorney for Petitioner

Member of the Supreme Court Bar

QUESTIONS PRESENTED

Does Missouri v. Frye, 566 U.S. 134 (2012), place an unreasonable

burden upon defendants by requiring them to produce evidence to prove

the counterfactual inquiries relating to prosecutorial withdrawal and

judicial nonacceptance of a forgone plea offer?

In resolving claims of ineffective assistance of counsel under Frye, is it

more practical for courts to presume, in the typical case, that statesponsored plea offers are acceptable to the prosecutor (who extended the

offer in the first place) and the trial judge, absent some identifiable

indication to the contrary?

ii

LIST OF PARTIES AND RELATED CASES

All parties to this petition appear in the caption of the case on the cover page.

•

State v. Narvaez, No. 18011191CF10A, Circuit Court for the Seventeenth

Judicial Circuit of Florida. Judgment entered March 8, 2019.

•

Narvaez v. State, App.No. 4D20-0245, Fourth District Court of Appeal of

Florida. Judgment entered March 16, 2022.

•

Narvaez v. State, App.No. 4D23-1089, Fourth District Court of Appeal of

Florida. Judgment entered January 4, 2024.

TABLE OF CONTENTS

Opinion and Order Below…………………………………………………………………… 1

Jurisdiction……………………………………………………………………………………. 1

Constitutional Provisions Involved………………………………………………………… 1

Statement of the Case……………………………………………………………………….. 2

Reason for Granting the Petition…………………………………………………............ 11

Argument……………………………………………………………………………………... 11

Conclusion……………………………………………………………………………………. 20

INDEX OF APPENDICES

Appendix A

Decision of the Fourth District Court of Appeal of Florida. Case No. 4D231089

Appendix B

Decision of the Circuit Court of the Seventeenth Judicial Circuit, in and for

Broward County, Florida. Case No. 18011191CF10A

iii

TABLE OF AUTHORITIES

Cases:

Alcorn v. State, 121 So. 3d 419 (Fla. 2013)……………………………………….. passim

Benton v. State, 2021 WL 3400644 (S.C. App. 2021)………………………………….. 15

Decker v. State, 2023 WL 2566048 (Minn. App. 2023)………………………………… 15

Ebron v. Comm’r of Corr., 307 Conn. 342, 53 A.3d 983 (2012)……………………….. 15

Lafler v. Cooper, 566 U.S. 156 (2012)……………………………………………………… 4

Laster v. Russell, 286 Va. 17, 743 S.E.2d 272 (2013)………………………………….. 16

Missouri v. Frye, 566 U.S. 134 (2012)……………………………………………... passim

Narvaez v. State, 335 So. 3d 721 (Fla. 4th DCA 2022)…………………………………. 2

Rodriguez v. State, 470 S.W.3d 823 (Tex.Crim.App. 2015)………………………….... 15

State v. Lexie, 331 Ga.App. 400, S.E.2d 97 (2015)…………………………………….. 14

Strickland v. Washington, 466 U.S. 668 (1984)..………………………………. 11, 12, 14

United States Constitution:

U.S. Const. amend. V……………………………………………………………………….. 1

U.S. Const. amend. XIV…………………………………………………………………….. 1

Federal Statutes:

28 U.S.C. § 1257(a)…………………………………………………………………………... 1

Florida Statutes:

§ 741.283, Fla. Stat…………………………………………………………………………... 2

§ 775.087(1)(a), Fla. Stat.…………………………………………………………………..... 2

iv

§ 775.087(2)(a)(2), Fla. Stat.………………………………………………………………... 2

§ 777.04(4), Fla. Stat………………………………………………………………………… 2

§ 777.04(1), Fla. Stat…………………………………………………………………........... 2

§ 782.04(1)(a), Fla. Stat…………………………………………………………………....... 2

§ 784.011, Fla. Stat.………………………………………………………………………….. 2

§ 784.021(1)(a), Fla. Stat……………………………………………………………………. 2

§ 784.021(2), Fla. Stat……………………………………………………………………….. 2

§ 784.03(1), Fla. Stat………………………………………………………………………… 2

§ 787.02, Fla. Stat……………………………………………………………………………. 2

§ 790.15(2), Fla. Stat………………………………………………………………………… 2

Florida Rules of Court:

Rule 3.850, Fla. R. Crim. P………………………………………………………….. passim

v

OPINION AND ORDER BELOW

The judgment of the Circuit Court of the Seventeenth Judicial Circuit, in and

for Broward County, Florida (Case No. 18011191CF10A) appears at Appendix B to

this petition. The opinion of the District Court of Appeal for the Fourth District of

Florida affirming the judgment (Case No. 4D2023-1089) appears at Appendix A to

this petition and is cited as Narvaez v. State, 2024 WL 45138 (Fla. 4th DCA January

4, 2024).

JURISDICTION

The Fourth District Court of Appeal of Florida (Case No. 4D2023-1089) issued

its opinion on January 4, 2023. (App. A). This petition is filed within 90 days of that

opinion. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides “In all

criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,

by an impartial jury of the state and district wherein the crime shall have been

committed, which district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining witnesses in his

favor, and to have the assistance of counsel for his defense.” U.S. Const. amend. VI.

The Fourteenth Amendment to the United States Constitution provides “No

state shall make or enforce any law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any state deprive any person of life, liberty,

1

or property, without due process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.” U.S. Const. amend. XIV.

STATEMENT OF THE CASE

After a jury trial, Petitioner was convicted as charged of Count I: attempted

murder in the first degree, in violation of §§ 777.04(1), 777.04(4), 782.04(1)(a),

775.087(1)(a), and 775.087(2)(a)(2), Fla. Stat. (2017); Count II: aggravated assault

with a deadly weapon/firearm, in violation of §§ 784.011, 784.021(1)(a) and

784.021(2), Fla. Stat. (2017); Count III: false imprisonment, in violation of § 787.02,

Fla. Stat. (2017); Count IV: discharging a firearm from a vehicle, in violation of §

790.15(2), Fla. Stat. (2017); and Count V: domestic battery, in violation of §§ 784.03(1)

and 741.283, Fla. Stat. (2017). (R.32).1

On March 8, 2019, was sentenced to 25 years in prison with a 20-year

mandatory minimum term, followed by 4 years of probation for Count I, 5 years

concurrent for Counts II and III, 15 years concurrent for Count IV, and 364 days of

county jail concurrent for Count V. (R.33). Petitioner was awarded 934 days of credit

for time served. (R.33).

Petitioner appealed. The Fourth District Court of Appeal affirmed the

judgments for Counts I through IV, but reversed and remanded for resentencing as

to Count V. Narvaez v. State, 335 So. 3d 721 (Fla. 4th DCA 2022). (R.23-27).

On September 19, 2022, Petitioner through counsel filed a motion to vacate,

set-aside or correct sentence pursuant to Rule 3.850, Fla. R. Crim. P. (R.31-93). The

1 Reference to the record on appeal in

Narvaez v. State, App.No. 4D23-1089, will be by the symbol “R.”

followed by page number.

2

motion raised a single ground alleging ineffective assistance of trial counsel during

plea negotiations which caused Petitioner to reject a favorable plea offer. (R.35).

Specifically, the motion alleged the State was unable to locate the victim for trial and

expressed it was considering a nolle prosequi. (R.34). The prosecutor approached

counsel with a plea offer consisting of a single reduced charge to felony battery and

364 days of county jail time. (R.34). Petitioner asked counsel what the benefit of

entering a plea would be if the victim was unavailable for trial and counsel responded

simply “to resolve the matter.” (R.34). Counsel did not inform Petitioner that, in the

event of a nolle pros, the State could re-file charges if the victim became available for

trial within the statute of limitations period. (R.34). Petitioner ultimately rejected the

plea. The State entered a nolle prossequi. The charges were subsequently reinstated

because the victim became available. Petitioner was brought to trial and convicted

and sentenced for all counts. (R.34-35).

Attached to the Rule 3.850 motion was an affidavit from Petitioner’s trial

counsel, Ms. Ramona L. Tolley, Esq. (R.44). In the affidavit, Ms. Tolley attests she

does not recall advising Petitioner that, in the event he rejected the plea and a nolle

pross was entered, the State would not be foreclosed from re-filing charges if, at any

time within the applicable limitations period, the victim again became available for

trial. (R.44).

The State filed a response to the Rule 3.850 motion on December 27, 2022.

(R.95). The State argued the claim should be summarily denied because Petitioner

3

“failed to allege any deficiency or prejudice” because Petitioner did not allege that

trial counsel “either provided misadvise or failed to relay an offer.” (R.99).

Petitioner filed a reply to the State’s response on January 4, 2023. (R.162).

An evidentiary hearing was held on April 5, 2023 (R.372). The parties agreed

that the claim is governed by the standard announced by the Florida Supreme Court

in Alcorn v. State, 121 So. 3d 419 (Fla. 2013).2 (R.391; 394). The parties further agreed

that prong four of the Alcorn analysis had been indisputably satisfied and the State

stood silent as to prong three. (R.396-97). The State expressly agreed with the lower

court that it was primarily challenging prong one and prong two under Alcorn.

(R.397).

Petitioner testified that he was represented at the trial stage of the proceedings

by Ramona Tolley, Esq. (R.399). There was an issue with the victim not appearing for

trial. (R.399). Petitioner was present for the calendar call held on August 30, 2018.

(R.399). At that time, Petitioner heard the State indicate they had not been in touch

with the victim for several months. (R.399). He also heard the State assert that the

case could not be proved without the victim. (R.399). Petitioner additionally heard

the trial judge express that this was the oldest case on the docket. (R.400) The judge

did not want to continue the case and specially set it for trial. (R.400).

Alcorn, the Florida Supreme Court acknowledged that this Court modified the prejudice analysis

for claims involving a forgone plea due to ineffective assistance of counsel in Lafler v. Cooper, 566 U.S.

156 (2012) and Missouri v. Frye, 566 U.S. 134 (2012). Bringing Florida law into conformity with those

decisions, the court held that to show prejudice resulting from such claims, a defendant must establish

a reasonable probability that (1) she would have accepted the plea offer; (2) the prosecution would not

have withdrawn the plea offer; (4) the court would have accepted the plea offer; and (4) the sentence

contemplated by the plea offer would have been less severe than the sentence imposed. Alcorn,121 So.

3d at 422.

2 In

4

Petitioner testified that he and Ms. Tolley had a brief discussion while he was

sitting in the jury box during the busy court docket. (R.400; 405-06). Ms. Tolley

informed Petitioner that the State may nolle pross the case because they were having

trouble locating the victim and she conveyed a plea offer consisting of a single,

reduced charge with a sentence of 364 days in the county jail. (R.400; 406-07). At that

time, Petitioner had already accumulated 364 days of credit for time served and

would not have to serve any more time in custody if he accepted the plea offer. (R.400;

406). When Ms. Tolley relayed the plea offer, Petitioner asked her what benefit he

would receive by taking the plea if the State could not locate the victim, to which Ms.

Tolley responded “to resolve the matter.” (R.400–01; 437-38).

Ms. Tolley did not advise Petitioner of any other pertinent matters in relation

to the plea. (R.401). She never informed Petitioner the specially set trial date was

essentially meaningless because the State could avoid it by filing a nolle pross and

then re-filing the charges at later date. (R.438). Petitioner testified that, at the time

Ms. Tolley conveyed the plea, he understood a nolle pross as a meaning “case

dismissed.” (R.401). He was not aware the State could re-file charges after a nolle

pross. (R.401). Petitioner believed that if the victim did not appear for trial, the case

would be dismissed permanently (R.401; 438).

Neither did Ms. Tolley advise Petitioner there was no statute of limitations for

Count I (attempted first degree murder with a firearm)⸺meaning he would be subject

to prosecution for the rest of his life⸺but if he would take the plea then jeopardy

would attach and the prosecution would come to an end. (R.438–39). Petitioner

5

testified he would have accepted the plea offer had he known that the State could refile and continue the prosecution at any time, because he would not want the matter

to linger over him for the rest of his life. (R.402; 439).

Ms. Tolley testified that she was retained to represent Petitioner in April of

2018. (R.441). Her understanding of the charges was such that the victim was

necessary for the State to prove its case. (R.441). Ms. Tolley attempted to depose the

victim, but was unable to serve her with the subpoena due not having a proper or

permanent address. (R.441). Ms. Tolley recalled the judge saying he was not inclined

to grant a State-charged continuance during the calendar call on August 30, 2018.

(R.442). The prosecutor stated that he did not have contact with the victim and was

considering a nolle pross. (R.442). The prosecutor made a plea offer for a single,

reduced charge of felony battery with 364 days in The Broward County Jail with

credit for time served. (R.442–43; 445). When she conveyed that plea offer to

Petitioner, his question to her was “don’t they have to have the victim for felony

battery too?” to which she answered “yes”. (R.443). Ms. Tolley recalled Petitioner then

asking what the point of would be of taking the plea and she answered “to get the

case resolved.” (R.443–44).

Ms. Tolley admitted she did not go over the pros and cons of accepting or

rejecting the plea offer with Petitioner; neither did she talk about the statute of

limitations or the concept of jeopardy. (R.444). Ms. Tolley further admitted she did

not know what the statute of limitations was for Count I at the time the plea offer

was conveyed. (R.455–56). Whether she knew it or not, it wasn’t something that she

6

discussed with Petitioner. (R.456). Ms. Tolley believed the statute of limitations was

four years. (R.456). She did not know what the statute of limitations is for a life felony.

(R.457). Ms. Tolley did not look the limitations period up on August 30, 2018, and was

unable to inform Petitioner that if the State could not locate the victim, he would still

be subject to prosecution for the remainder of his life. (R.458). Ms. Tolley did not

inform Petitioner that, notwithstanding the special set court date, the State could

still avoid trial by simply entering a nolle pross. (R.444). Ms. Tolley did not personally

believe the case was going to be nolle prossed due to the seriousness of the allegations

and other factors, but she did not relay this to Petitioner when the plea was offered.

(R.448–49). Ms. Tolley stated she did not go over the pros and cons of her

recommendation as to the plea because a calendar call was not a good opportunity to

do so. (R.461).

Ms. Tolley testified the Petitioner specifically stated he was not going to take

a plea without the victim. (R.451–52). After Petitioner rejected the plea offer, the case

was special set for trial on September 24, 2018. (R.444). The State ultimately entered

a nolle pross and then re-filed the charges. (R.444–45).

Assistant State Attorney Andrew Newman testified that he was the prosecutor

assigned to Petitioner’s case. (R.474). There was a nolle pross and then a re-file.

(R.475). At the calendar call on August 30, 2018, Mr. Newman was not ready for trial

because he was having trouble locating the victim. (R.479). He moved for a

continuance because he did not have the victim, despite his efforts for many months

to obtain her cooperation. (R.480–81). When he asked the court for more time to find

7

the victim, it was in open court, on the record and within earshot of Petitioner.

(R.481).

Mr. Newman testified that he extended a plea offer to Petitioner to resolve the

case because he was having trouble locating the victim. (R.481-82). The plea offer was

for a single count of felony battery and 364 days in the county jail. (R.482). It was not

the kind of offer he would normally extend for that type of case, but it was getting

near the end and was at the point he believed he would have no case. (R.482). Mr.

Newman recalled Ms. Tolley coming back with a counteroffer requesting a

misdemeanor battery, which he declined. (R.483). Mr. Newman testified the plea offer

was valid for that day only. (R.483). Mr. Newman subsequently entered a nolle pross.

(R.485). He re-filed the case almost immediately when he had the victim. (R.486).

On May 1, 2023, the state postconviction court entered its “Final Order

Denying Defendant’s Motion to Vacate, Set-Aside or Correct Sentence.” (App.B;

R.361). As to the first prong of the Strickland analysis, the court concluded trial

counsel’s performance with respect to the plea offer was deficient:

Defense counsel testified […] that she conveyed the offer to the

Defendant. She testified the Defendant asked her what would be the

point of taking the plea offer? Her response was to get the case resolved.

Counsel did not go over the pros and cons of rejecting the state’s offer.

She did not talk about the statute of limitations. She did not talk about

jeopardy and what could happen on a refile. See Fla. R. Crim. P. 3.171(c).

Furthermore, defense counsel did not know what the statute of

limitations was on count I at the time and was unable to provide said

information to the Defendant during the plea negotiations. The Court

takes note that during calendar calls Defense counsel’s time with the

Defendant is limited, in part, due to efficient docket management. There

is a strong presumption that any counsel’s conduct will fall within the

wide range of reasonable professional assistance. Regardless, in this

8

case defense counsel’s performance was deficient on August 30, 2018,

during the plea negotiation.

(App.B; R.364).

Insofar as prejudice, the state postconviction court found that only the fourth

Alcorn prong was uncontested by the parties. (App.B; R.364). Turning to the

remaining three Alcorn prongs, the court concluded as to prong one that Petitioner

would not have accepted the plea offer even if he had been properly advised by trial

counsel. (App.B; R.365). The court found Ms. Tolley credible and noted her testimony

that Petitioner “was aware of the seriousness of the crime and that he knew he could

get life in prison.” (App.B; R.365). The court further determined Petitioner appeared

mostly concerned with the availability of the victim. (App.B; R.365). The court

acknowledged that Petitioner “wanted to know why should he accept the State’s offer

if they don’t have a victim”, but concluded that “through his language and actions he

made it clear, he shouldn’t.” (App.B; R.365).

The state postconviction court found Petitioner to be incredible “based on his

testimony.” (App.B; R.365). The court observed, “The old ancient proverb says

hindsight is 20/20. In hindsight things are obvious that were not obvious from the

outset; one is able to evaluate past choices more clearly than at the time of the choice.

In this case, the defendant did not meet his burden in establishing prejudice.” (App.B;

R.365).

As to the second Alcorn prong (despite the State’s concession to same), the state

postconviction court concluded Petitioner “failed to meet his burden that the State

would not have withdrawn the offer.” (App.B; R.365). The court reasoned:

9

Here, the record is saturated with conversations that the State was

willing to proceed to trial. Albeit, they were requesting a continuance on

August 30, 2018. The Defendant did not show where the State would not

have withdrawn their offer. In fact, the contrary appears when the Court

granted the State’s continuance and the State was prepared to proceed

with trial preparation. Here, the Defendant makes mere general

allegations. ASA Newman testified, whom the Court finds credible. The

State had an independent witness to the incident. The victim appeared

fearful throughout the process and ASA Newman was diligent in trying

to gain her cooperation. The defendant was present on August 30, 2018,

when the Court gave the State 25 days to locate the victim and reset the

trial date.

(App.B; R.365-66).

Finally, as to the third Alcorn prong (again despite the State’s concession to

same), the state postconviction court concluded Petitioner failed to show the trial

judge would have accepted the plea offer. (App.B; R.366). The court observed:

The record is absent of any conversation the State and defense had with

the court as to plea negotiations. Furthermore, the court exercising its

right to limit the number of continuances does not prove with any

reasonable probability that it would have accepted the plea. The trial

court has authority to reject a negotiated plea between parties before it

is formally accepted by the court. Here, the Defendant failed to meet his

burden and prove a reasonable probability that an acceptance would

have taken place.

(App.B; R.366) (citations omitted).

Petitioner appealed the order denying his postconviction motion to the Fourth

District Court of Appeal. Narvaez v. State, App.No. 4D23-1089. In his brief, Petitioner

argued that the lower court reversibly erred in its misapplication of the prejudice

analysis for claims involving foregone pleas due to ineffective assistance of counsel.

10

The Fourth District Court of Appeal affirmed the appeal, without opinion, on

January 4, 2024. Narvaez v. State, 2024 WL 45138 (Fla. 4th DCA January 4, 2024).

(App.A).

This petition timely follows.

REASON FOR GRANTING THE PETITION

The primary reason why this Court should grant the petition is to

bring clarity to the prejudice analysis announced in Missouri v. Frye,

566 U.S. 134 (2012). State and federal courts across the nation differ

in their application of Frye, resulting in similarly situated

defendants having to overcome differing burdens of proof. Some

courts interpret Frye as imposing upon defendants the near

impossible burden of providing evidence that both the prosecutor and

the judge would have approved the plea. Other courts take a

presumption approach which assumes the normal course of action

would be acceptance of the plea by all parties, absent some

identifiable, intervening circumstance that would cause

prosecutorial withdrawal or judicial non-acceptance.

In this case, the state court held Petitioner to the more stringent

evidentiary burden of actually proving the counterfactual questions

relating to prosecutorial and judicial acceptance of the plea. Had the

court taken the presumption approach, an objective review of the

record would reveal nothing indicating prosecutorial withdrawal or

judicial non-acceptance of the plea.

This Court should grant certiorari to clarify the proper approach

courts should follow when determining prejudice resulting from such

claims.

ARGUMENT

In Missouri v. Frye, 566 U.S. 134 (2012), this Court addressed claims involving

ineffective assistance of counsel in the context of forgone plea agreements. Generally,

claims of ineffective assistance of counsel are guided by the two-pronged test

announced in Strickland v. Washington, 466 U.S. 668 (1984). To prove a claim under

11

Strickland, a defendant must show (1) that counsel’s performance was deficient and

(2) that the deficient performance prejudiced the defense. Id. at 687. The deficiency

prong requires the defendant to establish conduct on the part of counsel that is

outside the broad range of reasonableness under prevailing professional standards.

Id. at 688. The prejudice prong requires the defendant to establish “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694.

Where it is alleged that counsel’s deficient performance resulted in a forgone

plea offer, the prejudice prong is slightly modified. The defendant must show a

reasonable probability that (1) he or she would have accepted the plea offer with

proper advice; (2) the prosecution would not have withdrawn the plea offer; (3) the

court would have approved of the plea offer; and (4) the sentence under the plea offer

would have been more lenient than the sentence ultimately imposed. Frye, 566 U.S.

at 134 (2012).

Prongs (1) and (4) are reasonably within a defendant’s ability to prove through

evidence presented to the postconviction court. With respect to prong (1), a defendant

may provide testimony regarding his or her willingness to accept the forgone plea.

Other witnesses (such as trial counsel) could testify regarding same. Record

transcripts of previous proceedings in the case where resolutions may have been

discussed, recorded jail calls, or other evidence could provide insight into the

defendant’s amenability to accept a plea.

12

Prong (4) may be satisfied simply by comparing the sentence ultimately

imposed with the terms of the foregone plea agreement.

Prongs (2) and (3), however, present substantially greater obstacles for

defendants to overcome. This is because the questions involved for those prongs are

entirely counterfactual. In prong (3), the defendant is asked to demonstrate a

reasonable probability that the prosecutor⸺who extended the plea offer in the first

instance⸺would not have withdrawn the offer before it was accepted by the

defendant and ratified by the court. Similarly, in prong (4) the defendant is asked to

show that the judge would have accepted the plea agreement and not rejected it.

In an attempt to provide guidance on how to actually answer these

counterfactual questions, this Court in Frye explained that:

It can be assumed that in most jurisdictions prosecutors and judges are

familiar with the boundaries of acceptable plea bargains and sentences.

So in most instances it should not be difficult to make an objective

assessment as to whether or not a particular fact or intervening

circumstance would suffice, in the normal course, to cause prosecutorial

withdrawal or judicial nonapproval of a plea bargain. The determination

that there is or is not a reasonable probability that the outcome of the

proceeding would have been different absent counsel’s errors can be

conducted within that framework.

Frye, 566 U.S. at 149.

Unfortunately, this effort has resulted in a greater disparity amongst lower

courts in applying Frye. For example, one interpretation of the aforementioned

language suggests that most plea offers which are extended by the State are

acceptable to the court and the prosecutor. This Court begins by noting that actors in

jurisdictions are likely to understand “the boundaries of acceptable plea bargains.”

13

Frye, 566 U.S. at 149. Moreover, the focal point of the inquiry⸺i.e. searching for facts

that would “suffice . . . to cause prosecutorial withdrawal or judicial nonapproval of a

plea bargain” id.⸺appears to imply a presumption of prosecutorial and judicial

acceptance. Notably, this Court also framed its analysis of the case at hand by

observing that, given the fact of Frye’s intervening additional offense prior to the

hearing at which the plea would have been accepted, “there is reason to doubt” that

the prosecutor and trial court would have maintained the plea agreement. Id. at 151.

The Court’s language seems to suggest that in the typical case, an absence of contrary

facts might imply approval by a court and offering prosecutor.

On the other hand, Frye can also be read as placing an affirmative evidentiary

burden upon defendants. Prongs (2) and (3) are framed within the existing language

of Strickland, stating that a defendant must show “a reasonable probability neither

the prosecution nor the trial court would have prevented the offer from being accepted

or implemented.” Id. at 148. Because these counterfactual questions are woven into

the existing Strickland fabric in which defendants must bear the affirmative

evidentiary burden, Frye arguably implies that defendants are required to bear a

similar burden in these novel contexts as well.

These two contrasting applications Frye are manifesting in lower courts across

the country. Some jurisdictions follow the presumption approach, assuming

prosecutorial and judicial acceptance of the plea offer as a starting point and making

an objective assessment of the record to determine whether any factors exist which

would be cause for non-approval of the plea. See e.g., State v. Lexie, 331 Ga.App. 400,

14

404, 771 S.E.2d 97 (2015) (performing Frye analysis and concluding there was “no

reason evident from the record that the State’s offer in this case would not [have]

been acceptable to the Court” and “no indication that the State would have not

adhered to the agreement.”); Rodriguez v. State, 470 S.W.3d 823, 828-29

(Tex.Crim.App. 2015) (“The State likely would not have withdrawn the plea because

the record shows that there may have been difficulties getting the victims to testify

at the time of trial…. there is nothing in the record to indicate that the trial judge

would have rejected the agreement had it been presented to her prior to the trial.”);

Ebron v. Comm’r of Corr., 307 Conn. 342, 360-61, 53 A.3d 983 (2012) (concluding

prejudice under Frye was satisfied “in the absence of any evidence that the particular

judge’s practice deviated significantly from the normal practice or that the particular

sentence would have been an outlier.”).

Other jurisdictions take the more stringent approach of placing the burden

squarely upon the defendant to provide some form of evidentiary support for the

assertion that the prosecutor and judge would have accepted the plea. See e.g., Decker

v. State, 2023 WL 2566048 (Minn. App. 2023) (“The state contends that Decker

introduced no evidence that the district court would have accepted the plea

agreement. Our review of the record indicates that the state is correct: Decker did not

introduce any evidence or make any argument as to whether the district court would

have accepted the plea agreement.”); Benton v. State, 2021 WL 3400644 (S.C. App.

2021) (explaining that pursuant to Frye “the burden of showing prejudice—in this

case, the burden of showing a reasonable chance the judge would have accepted the

15

plea—is Benton’s to carry. Benton did not offer any evidence on this point.”) (citations

omitted); Laster v. Russell, 286 Va. 17, 26-27, 743 S.E.2d 272 (2013) (“Laster has

offered no evidence to prove that this particular plea offer was within the boundaries

of acceptable plea agreements and sentences in the jurisdiction, or that Judge

Doherty had ever accepted similar plea agreements and sentences in other cases

involving similar facts and charges.”).

The above examples are by no means exhaustive of the various approaches

taken by different state court systems. By now, courts in all 50 states have resolved

claims of ineffective assistance of counsel which require application of the prejudice

analysis outlined in Frye. Their varied and contrasting interpretations of Frye

suggest that defendants in different jurisdictions are being offered inconsistent

protections for their right to effective counsel during plea negotiations. Those

defendants in jurisdictions which employ the harsher, evidentiary burden approach,

face an almost insurmountable task of providing some form of evidence to prove the

counterfactual inquiries outlined in Frye⸺oftentimes where no evidence exists and

the record is silent. This is particularly burdensome for pro se defendants who are

incarcerated and who lack the necessary means and resources to even begin to search

for such evidence.

This Court should level the field. A more workable solution may be to assign a

rebuttable presumption to the counterfactual inquiries of prosecutorial withdrawal

or judicial non-acceptance of the plea offers. In the typical case, once it is established

that trial counsel performed deficiently in relation to a forgone, state-sponsored plea

16

offer, prosecutorial and judicial acceptance should be presumed as a starting point

for the inquiry. The State in responding to the inquiry would be in a much better

position to rebut the presumption with evidence of prosecutorial withdrawal or

judicial non-acceptance, thereby foreclosing the claim. The defendant, of course,

would still be required to prove he or she would have accepted the plea offer and that

the sentence would have been more lenient under the offer.

If this Court grants the petition to provide clarity to the Frye prejudice analysis

and determines the presumption approach reasonably satisfies the constitutional

inquiry as to prongs (2) and (3), it will easily conclude the judgment below should be

quashed and the case remanded for reconsideration. The prosecutor in this case

testified at the evidentiary hearing on the claim that the plea offer remained

available for the day it was extended. (R.483). The state postconviction court found

the prosecutor’s testimony to be credible (R.365-66), but appears to have completely

disregarded this crucial admission. Evaluating the circumstances at the time the

offer was extended and what Petitioner would have done with proper advice, there is

nothing in the record to indicate the prosecutor would have withdrawn the plea offer

that day.

As to prong (3), the state postconviction court found that the Petitioner failed

to prove the trial judge would have accepted the plea offer because the record is devoid

of any evidence indicating otherwise. (R.366). However, a brief assessment of the facts

shows the judge was reluctant to grant the State any more time to locate the victim

and specially set the case for trial. It was time to clear the docket. Surely the learned

17

and experienced trial judge would have understood the State’s difficulty in obtaining

a conviction without the victim in this case⸺the prosecutor even lamented as much

when he told the court that the case would likely result in a nolle pross. (R.479-81).

It is objectively reasonable that a judge would have accepted the agreed resolution of

the parties at that point. Nothing in the record indicates the judge would not have

accepted it.

Insofar as the state postconviction court additionally concluded Petitioner

failed to establish prong (1), this finding is also erroneous. The court acknowledged

that Petitioner “wanted to know why he should accept the State’s offer if they don’t

have a victim” but concluded that “through his language and actions he made it clear,

he shouldn’t.” (R.365).

It is true that Petitioner’s sole reason for not accepting the plea offer was

because the victim was unavailable. But that is only due to Petitioner being sorely

misinformed as to the pertinent legal concepts which were in play. Without dispute,

the State’s entire case against Petitioner was contingent upon the victim’s

availability for trial. Ms. Tolley testified the State was considering a nolle pross

because the victim could not be located. (R.442). Mr. Newman admitted the reason he

offered such a generous plea deal is because he believed there was a high likelihood

he would have no case without the victim. (R.482). Narvaez’s questions regarding the

plea offer logically centered around the strength of the State’s case without the victim:

“Doesn’t the State need to have the victim to prove the reduced charge of felony

18

battery too? What’s the benefit of taking the plea if the State has to nolle pross the

case because they have no victim?”

A simple explanation by Ms. Tolley would have provided Petitioner with the

information he needed to make an informed and intelligent decision regarding the

plea:

“Count I is a life felony for which there is no limitations period. The fact that

the victim is unavailable at the present moment is meaningless. If she becomes

available 10 years, 20 years or 50 years down the road, the State may recommence

prosecution. The only way this definitively ends is by taking this plea offer today.”

Contrary to the state postconviction court’s conclusion, this was much more

than a mere instance of hindsight being 20/20. (R.365). This case involves a critical

decision being made without all the information necessary to make that decision.

Petitioner sought answers by asking reasonable questions one would expect from a

layperson, but his attorney failed him. Without an understanding about the legal

effect of a nolle pross, jeopardy and the statute of limitations, and how those concepts

interact and apply to the particular circumstances of his case, Petitioner was unable

to make an informed decision whether to accept the plea.

Petitioner himself testified at the evidentiary hearing that he would have

accepted the plea offer had he been properly advised of these matters by counsel.

(R.402). His reasoning was finality -- he would not want potential prosecution for a

life felony hanging over his head for the rest of his life. (R.401). While the lower court

found Petitioner to be an incredible witness, his answer on this point was certainly

19

not unreasonable and went unrebutted by the State. Moreover, the fact that

Petitioner sought to understand the pros and cons of accepting the plea offer by

inquiring with counsel first⸺as opposed to outright rejecting it⸺supports that

Petitioner was indeed giving the offer due consideration and would have been

amenable to accepting the offer upon proper advice.

CONCLUSION

For the reasons stated herein, this Court should grant certiorari, quash the

judgment below and clarify the proper approach to evaluating prejudice under Frye.

Respectfully submitted,

The Law Office of

ROBERT DAVID MALOVE, P.A.

200 S.E. 9th Street

Ft. Lauderdale, Florida 33316

e-filing@robertmalovelaw.com

(954) 861-0384

By: /s/ Robert David Malove

Robert David Malove, Esq.

Florida Bar No.: 407283

20