Opposition Brief — Florida v. Grosvenor

(2) i a Cot US |

_ OCT 29 2004

No. 04-295

| OFFICE OF THE CLERK |

In The

Supreme Court of the Anited States

,

v

STATE OF FLORIDA,

Petitioner,

Vv.

TRACI ANN GROSVENOR,

Respondent.

y

vw

On Petition For A Writ Of Certiorari

To The Supreme Court Of Florida

b

vw

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

ROBEET S. GRISCTI, Esq. ASHLEIGH A. BARTKUS, ESQ.

Counsel of Record Counsel on Brief

LAW FIRM OF ROBERT S. GRISCTI, P.A.

204 West University Avenue, Suite 6

Post Office Box 508

Gainesville, Florida 32602

(352) 375-4460

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the Supreme Court of Florida correctly applied

the “prejudice” prong of Strickland v. Washington, 466

U.S. 668 (1984), Hill v. Lockhart, 474 U.S. 52, 59 (1985)

and Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000) in this

post-conviction proceeding.

TABLE OF CONTENTS

Page

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CONSTITUTIONAL PROVISIONS INVOLVED ....... 1

STATEMENT OF THE CASE ................cccccssecesseeeeees 1

SUMMARY OF THE ARGUMENT........................0000 3

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TABLE OF AUTHORITIES

Page

CASES

Boykin v. Alabama, 395 U.S. 238 (1969) ........ ce eeeeeeees 4

Grosvenor v. State, 874 So.2d 1176, rehearing denied,

2004 Fla. LEXIS 947 (Fla Mar. 26, 2004).............. 1, 2, 3,8

Grosvenor v. State, 816 So.2d 822 (Fla. 5th DCA

UTE ciniesasashusi-dondiaesiabahdaniichceguhcinta di diadbdarbanhavenentinsiinsiensiaaliadcabeninis 1

Hill v. Lockhart, 474 U.S. 52 (19885) ........0...... i, 3, 4, 5, 6, 7

Holmes v. United States, 875 F.2d 1545 (11th Cir.

SUTIN iibisclinalintihcaniasliiidahe planed amiiesatiiinusdonsanendensdaasnananibeaaeannes 7

Iaea v. Sunn, 800 F.2d 861 (9th Cir. 1986) ....... ee 7

Johnson v. Zerbst, 304 U.S. 458 (1938).......... ccc cecceeeeeeeeees 4

Jones v. BTID, Ge CE aes FE EE cadiicneesensnscstrcnresssscccesens 4

Miller v. Champion, 262 F.3a 1066 (10th Cir. 2001) ...... 6, 7

Powell v. Alabama, 287 U.S. 45 (1932) ...........cccecccceeeeeeees 4

Roe v. Flores-Ortega, 528 U.S. 470 (2000) ................... i, 3,5

Strickland v. Washington, 466 U.S. 668 (1984)...i, 3, 4, 5, 8

United States v. Giardino, 797 F.2d 30 (lst Cir.

BI cc eaiielhiciicbbnlt aide ladinsliailad nahn tid eileen ieee ence lela al 7

Warner v. United States, 975 F.2d 1207 (6th Cir.

a ae idecarenerans 7

Weeks v. Snyder, 219 F.3d 245 (3d Cir. 2000)............0......... 6

Witherspoon v. Purkett, 210 F.3d 901 (8th Cir. 2000).......... 6

iv

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONS

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Bs is I Waitt. secccachacescdacactnsednceinedebunansianeans 1,5

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RULES

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1

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

OPINION BELOW

The decision of the Supreme Court of Florida is

reported at Grosvenor v. State, 874 So.2d 1176, rehearing

denied, 2004 Fla. LEXIS 947 (Fla. Mar. 26, 2004). The

Florida Supreme Court’s opinion rever*ed Grosvenor v.

State, 816 So.2d 822 (Fla. 5th DCA 2002). On remand, the

Fifth District Court of Appeal issued mandate and denied

the Petitioner’s request for stay of mandate.

2

v

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Fifth Amendment to the United

States Constitution, which provides in relevant part that

“[nJo persons shall be .. . deprived of life, liberty, or prop-

erty, without due process of law”; the Sixth Amendment to

the United States Constitution, which provides in relevant

part that “[iJn all criminal prosecutions, the accused shall

enjoy the right . . . to have the assistance of counsel for his

defence”; and the Fourteenth Amendment to the United

States Constitution, which provides in Section I in rele-

vant part that “nor shall any State deprive any person of

life, liberty, or property, without due process of law... .”

4

Vv

STATEMENT OF THE CASE

Respondent Traci Ann Grosvenor plead nolo conten-

dere to first-degree murder and related charges and was

sentenced to two life terms, two fifty-year terms, and one

five-year term, all running concurrently. Grosvenor v.

2

State, 874 So.2d 1176, 1176-77 (2004). Grosvenor was

represented by the Public Defender’s Office of the Fifth

Judicial Circuit, State of Florida. Jd. Grosvenor told her

attorneys that she had used drugs and alcohol on the day

of the incident, a fact that was supported by a laboratory

report “ m testing immediately following Grosvenor’s

arrest uu: the incident that resulted in her prosecution,

_ which revealed traces of marijuana and cocaine in Grosve-

nor’s system. Grosvenor’s counsel did not advise her about

the availability of a voluntary intoxication defense to all of

the charges against her. Jd. Grosvenor reluctantly agreed

to her counsel’s advice to plead nolo contendere to the

charges against her, but only after she initially entered a

guilty plea that the trial Court vacated sua sponte when

Grosvenor told a newspaper reporter that she would have

gone to trial if she had a “split hair’s chance” of defense.

Following sentencing, Grosvenor filed a _ post-

conviction motion seeking to vacate her guilty plea, alleg-

ing that “had [she] been informed of her viable defense of

voluntary intoxication ... she would not have entered the

plea agreement and instead would have proceeded to

trial.” Jd. The trial Court granted an evidentiary hearing

on the issue of ineffective assistance of counsel. 874 So.2d

at 1177. The Court agreed to assume for purposes of the

initial hearing that trial counsel’s performance was defi-

cient and consider only whether Grosvenor suffered

prejudice. Id. The deposition of Grosvenor’s lead trial

attorney stated that he (trial counsel) considered the

voluntary intoxication defense, but, without consulting

Grosvenor, “decided it was not a valid defense.”

The record in Grosvenor’s case is replete with evi-

dence that Grosvenor resisted entering her pleas and

unequivocally advised her counsel and the trial Court that

3

she wanted to proceed to trial. (R. IX-T52-53). There is no

evidence that Grosvenor’s trial counsel advised her about

the strengths and weaknesses of the defense of voluntary

intoxication so that she could make an informed choice

whether to enter a plea or go to trial. Not only did Grosve-

nor’s trial counsel fail to make a reasonable effort to

discover her defenses, but counsel ignored Grosvenor when

she specifically told counsel that if she had a defense she

wanted to proceed to trial. This fact was not only pre-

sumed in the bifurcated procedure used in the post-

conviction proceeding, but was also established without

contradiction at the post-conviction hearing. (Grosvenor’s

Initial Brief to the Supreme Court of Florida, pp. 6-8, 10).

+.

vv

SUMMARY OF THE ARGUMENT

The Supreme Court of Florida held that Grosvenor, in

order to successfully demonstrate ineffective assistance of

counsel relating to her guilty plea, must demonstrate a

reasonable probability that, but for counsel’s errors, she

would not have pleaded guilty and would have insisted on

going to trial. Grosvenor v. State, 874 So.2d at 1177. This

holding iterates the standard of this Court originally set

forth in Strickland v. Washington, 466 U.S. 668 (1984),

and reaffirmed in both Hill v. Lockhart, 474 U.S. 52, 59

(1985) (“[t]he defendant must show that there is a reason-

able probability that, but for counsel’s errors, he would not

have pleaded guilty and would have insisted on going to

trial”) and Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000)

(defendant need not demonstrate grounds for meritorious

appeal or even “specify the points he would raise were his

right to appeal reinstated”).

4 |

The holding of the Supreme Court of Florida properly

recognizes that the focus of the prejudice prong of Strick-

land is whether a defendant can show that it is reasonably

probable that she would have insisted on going to trial )

based on the totality of the circumstances. This interpreta- |

tion has been applied by state and federal courts since

Strickland and Hill. For these reasons and reasons more |

fully explained below, the State of Florida’s Petition for |

Writ of Certiorari should be denied.

,

Vv

ARGUMENT

The decision of the Supreme Court of Florida is in

accord with this Court’s clear and longstanding precedent.

The seminal case of Strickland v. Washington, 466 U.S. at

688, imposes a “basic duty” upon counsel to consult with

the client as to “important” matters. The Constitution

guarantees that, when faced with critical decisions, a

criminal defendant receive “the guiding hand of counsel.”

Powell v. Alabama, 287 U.S. 45, 69 (1932). This duty to

consult applies to the “fundamental” decision whether to

plea guilty or take a case to trial.’ Without at least some

‘ This Court has recognized that there are four “fundamental

decisions” that only the defendant, and not counsel, can make: (1)

whether to plead guilty; (2) whether to waive a jury: (3) whether to

testify; and (4) whether to take an appeal. Jones v. Barnes, 463 U.S.

745, 751 (1983). These decisions are “fundamental” because they

involve the waiver of “important” rights. Johnson v. Zerbst, 304 U.S. !

458, 464 (1938) (a waiver is typically an “intentional relinquishment or

abandonment of a known right or privilege”). The decision to plead

guilty is a particularly important right as the decision to plead guilty

involves a waiver of a panoply of trial rights. Boykin v. Alabama, 395

U.S. 238 (1969) (due process requires that the court closely question the

(Continued on following page)

LE PCLT ee TTR eee

5

level of consultation and explanation, the client’s decision

whether to plead guilty cannot be a meaningful one. An

attorney who fails to discuss potential affirmative defenses

with the client fails to fulfill his or her Sixth Amendment

duty of effective representation.

In Strickland, this Court established the familiar two-

pronged test for proving ineffective assistance of counsel:

first, a defendant must show that “counsel made errors so

serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment”; and

second, that the defendant was prejudiced because coun-

sel’s errors rendered the outcome of the state court’s

proceedings unreliable. Id., 466 U.S. at 687.

This Court has established that “prejudice” under

Strickland requires only a showing of a reasonable prob-

ability that, but for counsel’s deficient performance, the

defendant would have taken his case to trial, see Hill, 474

U.S. at 59, or the defendant would have directed his

lawyer to pursue an appeal, see Flores-Ortega, 528 U.S. at

482. In each instance, the legal standard turns on what

the criminal defendant would have elected to do if compe-

tently counseled, and is designed to restore the defendant

to the position he or she would have occupied if counsel

had satisfied the Sixth Amendment. Attorney conduct that

results in the denial of the client’s fundamental right to a

trial is constitutionally deficient.

Under Strickland, “prejudice” does not require the

defendant to demonstrate that an affirmative defense

would have been meritorious or successful. Any defendant

defendant, on the record, to ensure that the waiver is a fully knowl-

edgeable one).

6

denied the right to make an intelligent and informed

waiver of the fundamental rights associated with a trial by

jury has been prejudiced. Practically, a system whereby

the trial Court was required to prejudge the likelihood of

success of a defense without the assistance of the defense

attorney would be unworkable. The Hill standard of

“prejudice” properly focuses on the basic decision whether

- to plead guilty, rather than impractically forcing the trial

Court to guess the ultimate outcome of the trial. The latter

process would require the trial Court to identify meritori-

ous issues that defendant could have asserted if afforded

the assistance of counsel.

The federal Courts of Appeals have dealt squarely

with this issue and held that “[i]t is not necessary for the

defendant to show that he actually would have prevailed

at trial.” Miller v. Champion, 262 F.3d 1066, 1069 (10th

Cir. 2001). Rather than simply relying on a defendant’s

“mere allegation” that he would have insisted on trial but

for his counsel’s errors, courts look to factual circum-

stances surrounding the plea to determine whether the

- defendant would have proceeded to trial. Jd. at 1072.

“While other circuits have considered the strength of the

prosecution’s case as circumstantial evidence of whether a

petitioner would have changed his plea, and therefore

whether he was prejudiced, none has held a petitioner

must show that the case would likely have failed had it

gone to trial.” Jd. at 1%74; see, e.g., Weeks v. Snyder, 219

F.3d 245, 259-60 (3d Cir. 2000) (“[iJn order to examine the

prejudice issue, we must ... determine whether there is a

reasonable probability that if [the defendant] had been

informed of the results of [trial counsel’s] research, he

would have insisted on going to trial”); Witherspoon uv.

Purkett, 210 F.3d 901, 903-04 (8th Cir. 2000) (“[w]e conclude

7

that there is not reasonable probability that [the defen-

dant] would have continued to plead not guilty and would

have insisted on going to trial” thus failing to make the

necessary showing of prejudice); Warner v. United States,

975 F.2d 1207, 1214 (6th Cir. 1992) (defendant’s testimony

“that he would have p'ed not guilty and gone to trial but

for the misadvice of his attorney” constituted prejudice);

Holmes v. United States, 876 F.2d 1545, 1551 (11th Cir.

1989) (in order to satisfy the Hill v. Lockhart standard,

defendant must prove that “he would not have pleaded

guilty and would have insisted on going to trial had his

attorney not misled him with faulty information”); Jaea v.

Sunn, 800 F.2d 861, 865-66 (9th Cir. 1986) (where “[t]he

record is replete with evidence that [defendant] was very

reluctant to plead guilty and that [defendant’s counsel and

brother] had a great deal of trouble convincing him to do

so,” the Court found a sufficient showing of actual preju-

dice); United States v. Giardino, 797 F.2d 30, 32 (1st Cir.

1986) (sufficient prejudice shown where defendant “explic-

itly says he would have gone to trial had he known the

truth about [a witness’] likely testimony”).

Instead, the lower Courts usually consider the

strength of the defendant’s case only to the extent “it offers

circumstantial evidence of what the petiticner would have

done had his counsel not proved to be ineffective.” Miller,

262 F.3d at 1074 The Court in Miller aptly held that, in

light of the “overwhelming weight of authority among the

other federal circuits” and this Court’s opinion in Hill, “the

district court erred by requiring [the defendant] to prove a

reasonable probability existed not only that he would have

insisted on trial but for his counsel’s mistakes, but also

that there was a likelihood that he would have prevailed

at trial.” Id.

8

Accordingly, the foregoing demonstrates that there is

no compelling basis for this Court’s exercise of jurisdiction

by certiorari review under Rule 10 of the Rules of the

Supreme Court of the United States, as the correct legal

standard for the prejudice prong of Strickland has been

applied uniformly by the lower Federal Courts and reiter-

ated by the Supreme Court of Florida in Grosvenor uv.

State, 874 So.2d 1176, rehearing denied, 2004 Fla. LEXIS

947 (Fla. Mar. 26, 2004).

,

_

CONCLUSION

Respondent Traci Ann Grosvenor respectfully requests

that this Court deny the State of Florida’s Petition for Writ

of Certiorari herein.

Respectfully submitted,

ROBERT S. GRISCTI, Esq.

Counsel of Record for

Respondent Grosvenor

-204 W. University Ave, Suite 6

Gainesville, FL 32601

(352) 375-4460

Dated this 1st day of November, 2004