Earven v. State

324 So.3d 22

Gary EARVEN, Petitioner,

v.STATE of Florida, Respondent.

No. 1D19-3927

District Court of Appeal of Florida, First District.

June 4, 2021

Rehearing Denied August 30, 2021

Gary Earven, pro se, Petitioner.

Ashley Moody, Attorney General, Trisha Meggs Pate, Bureau Chief – Criminal Appeals, Tallahassee, for Respondent.

Osterhaus, J.

Gary Earven seeks new appellate counsel and a new appeal on grounds that his former appellate counsel provided ineffective representation in his direct appeal.

Earven faults his appellate counsel for two things: (1) not citing to federal authorities in making Earven's sufficiency of the evidence and due process arguments; and (2) not appealing the use of what Earven considers to be a fundamentally erroneous jury instruction. We deny the petition on the merits.

To establish ineffective assistance of counsel, "the defendant must specifically identify acts or omissions of counsel that were manifestly outside the wide range of reasonably competent performance under prevailing professional norms." Sanchez-Torres v. State , 322 So.3d 15 (Fla. Mar. 12, 2020) (quoting Long v. State , 183 So. 3d 342, 345 (Fla. 2016) ). It is the defendant's burden to overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. (quoting Strickland v. Washington , 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ).

We reject, first, Earven's argument that appellate counsel was ineffective for failing to add federal citations to his sufficiency of the evidence argument. Earven's appellate counsel made a vigorous argument on the evidence-sufficiency issue. In fact, the briefs and oral argument show that the parties closely contested whether the State's case adequately demonstrated a well-founded fear of violence in the mind of the victim as necessary to win an aggravated assault conviction. The trial itself produced conflicting evidence on the issue of the victim's well-founded fear. Although the victim said he wasn't afraid of the gun shot fired by Earven, the victim also considered Earven's walk towards him with a gun to be a threat (to which the victim responded by leaving the scene in his vehicle). Counsel thoroughly addressed this issue in the direct appeal and we have no basis for finding ineffective assistance. The gloss of adding federal citations to Earven's arguments would not have improved them, affected the outcome of his direct appeal, or advanced his case. Thus, we cannot conclude that these omissions were "manifestly outside the wide range of reasonably competent performance under prevailing professional norms." See Sanchez-Torres , 322 So.3d 15.

Nor was Earven's appellate counsel ineffective for failing to argue fundamental error related to how the aggravated assault jury instruction addressed the victim's fear. The parties agreed at trial to include an objective standard instruction. Such "would put a reasonable person in fear" instructions have been used and upheld in other aggravated assault cases. See, e.g. , Daniels v. State , 308 So. 3d 212, 213 (Fla. 1st DCA 2020) ("This Court and others have held that whether the victim actually testifies that he or she was in fear is not conclusive of the fear element, as long as ‘a reasonable person would experience a well-founded fear of imminent harm.’ " (quoting Tash v. Rogers , 246 So. 3d 1304, 1305 (Fla. 1st DCA 2018) )). That said, we recognize that the appropriateness of instructing the jury on an objective standard in circumstances like Earven's – where the victim of an alleged aggravated assault testifies of having not been afraid – doesn't appear to have been directly litigated before in Florida. Though Earven raises a fair point about whether this instruction was a good fit in his case, we cannot conclude that appellate counsel was ineffective "for failing to raise a novel [fundamental error] argument on direct appeal." See Sanchez-Torres , 322 So.3d 15 (citing Steinhorst v. Wainwright , 477 So. 2d 537, 540 (Fla. 1985) ("The failure to present a novel legal argument not established as meritorious in the jurisdiction of the court to whom one is arguing is simply not ineffectiveness of legal counsel."). "[E]ffective appellate counsel need not raise every conceivable nonfrivolous issue." Zack v. State , 911 So. 2d 1190, 1204 (Fla. 2005) (quoting Valle v. Moore , 837 So. 2d 905, 908 (Fla. 2002) ).

Finally, the dissent advocates converting Earven's petition from a 3.850 matter to habeas corpus and granting relief on grounds that this Court committed a manifest injustice by affirming in the direct appeal. Because Earven asserted ineffective assistance of appellate counsel, not habeas corpus, such revamping of the petition is not appropriate here. See Rosier v. State , 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (en banc) (recognizing the court's responsibility to exercise restraint by confining its decisions to the issues raised by the parties). It isn't the Court's place to improve upon party arguments. See id. Even so, the dissent's analysis sells short the work done by the parties and this Court in the direct appeal. The dissent incorrectly attributes to the State, for instance, a concession about the victim not being afraid during the crime. In fact, the State's brief in the direct appeal didn't mince words in making the opposite argument: "The State argues in the instant case, the victim did testify to the fact he exhibited actual fear of imminent bodily harm by Appellant." Then after citing record support, the State re-emphasized its argument: "Therefore, there was sufficient evidence presented at trial that the victim did possess actual fear of imminent bodily harm." Only after asserting actual fear did the State turn to an alternative reasonable-person-based argument that is highlighted by the dissent:

Alternatively, if this Court finds that the record in the instant case does not support the contention that actual well-founded fear of imminent bodily harm was presented at trial, then there was sufficient evidence presented that the jury could find under the circumstances, a reasonable person would have had a well-founded fear of imminent bodily harm.

Additionally, this Court closely considered the subjective fear evidence at oral argument in the direct appeal and peppered the parties with questions about it. Earven's counsel responded by recognizing that the evidence was sufficient to prove an assault because Earven angrily approached the victim with a firearm in his pocket, which the victim recognized to be a "threat." In response to this threat, the victim backed his car out of the driveway and drove off while Earven fired into the air over the car. Earven's counsel argued that the assault ceased prior to the firearm's display and shot, so that no aggravated assault occurred. But there was no identifiable break of time or location during this brief episode. With this evidence of an imminent threat involving the firearm, this case could properly to go to the jury on the aggravated assault charge irrespective of doubts involving the State's alternative objective-standard argument. In turn, given the subjective fear evidence, this Court's decision to affirm the judgment, sentence, and denial of the Earven's JOA motion in the direct appeal caused no manifest injustice. And so, we shouldn't entertain a de facto second appeal here on matters that were already raised, closely evaluated, and reasonably decided on direct appeal. See Breedlove v. Singletary , 595 So. 2d 8, 10 (Fla. 1992).

The petition alleging ineffective assistance of appellate counsel is DENIED on the merits.

Bilbrey, J., specially concurs with opinion; B.L. Thomas, J., dissents with opinion.

Bilbrey, J., specially concurring.

I agree with Judge Osterhaus that we are correct to deny the petition for ineffective assistance of appellate counsel, and I concur with much of his well-reasoned opinion.^* I fully concur with his analysis that appellate counsel was diligent in Gary Earven's direct appeal and that our court there carefully considered the issues raised so that no fundamental error occurred in affirming Earven's conviction.

Our precedent, as stated in Daniels v. State , 308 So. 3d 212 (Fla. 1st DCA 2020), and as pointed out by both Judge Osterhaus and the dissenting opinion, allows a conviction for assault with only objectively reasonable fear having been proven. The dissent may have a valid point that proof of only objectively reasonable fear is insufficient to uphold an assault conviction when the purported victim disclaims any fear and there is no contrary evidence. Allowing proof of only objective fear appears to be contrary to the statutory definition of assault which requires both that the fear be objectively reasonable and the act of the defendant "creates a well-founded fear in such other person." § 784.011(1), Fla. Stat. (2016).

If the victim does not testify, circumstantial evidence can prove the subjective fear. Daniels , 308 So. 3d at 213. But if the victim testifies that he or she was not afraid, and there is no evidence to the contrary, there is a good argument that the assault charge should not go to the jury. I therefore am inclined to agree with then-Chief Judge Casanueva's concurring in result only opinion in S.P.M. v. State , 66 So. 3d 317, 320 (Fla. 2d DCA 2011), discussed by the dissent. In an appropriate case, I would vote to go en banc to consider adopting Judge Casanueva's rationale that courts should not apply "a reasonable person standard in a case where the victim testified that he was not afraid and there was no evidence to the contrary." Id. at 321.

But here, just like in Daniels , there was some evidence to counter the victim's refutation of fear. As the State mentioned in the direct appeal, the victim testified about Earven having his hands in his pockets resulting in the victim backing away from Earven, implying that the victim was in fear. The victim was watching Earven's...