Gusow v. State

6 So.3d 699

Mark GUSOW, Appellant, v. STATE of Florida, Appellee.

No. 4D08-2135.

District Court of Appeal of Florida, Fourth District.

April 1, 2009.

Rehearing Denied May 7, 2009.

Mark Gusow, Coleman, pro se.

Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, C.J.

On March 6, 2000, Mark Gusow entered pleas of guilty to 47 felonies—one count of conspiracy to commit racketeering, 11 counts of money laundering, 18 counts of grand theft, and 17 counts of loan broker fraud. Pursuant to his plea bargain with the state, he was sentenced to probation.

Just five months after the plea, a violation of probation warrant was filed. The violation of probation charges were amended in February and May 2001. On September 25, 2001, Gusow admitted the violations. The circuit judge reinstated Gusow on probation, with the additional condition of mandatory drug treatment.

In 2006, Gusow again violated his probation. The circuit judge sentenced him to a 17-year prison term on two counts, and concurrent sentences on the other counts.

In 2007, Gusow moved to vacate his 2000 plea arguing that his plea was involuntary, because his counsel misadvised him that he would face a maximum of only five years in prison for a violation of probation.¹ The trial court denied the motion

We affirm for two reasons. First, the attorney misadvice concerned a matter collateral to the plea, i.e., a consequence that did not flow directly from the plea, so the purported error did not amount to constitutionally deficient assistance of counsel. Second, Gusow's postconviction relief motion was untimely because it was filed more than two years after the conviction based on his plea became final. See Fla. R.Crim. P. 3.850(b).

It is important to view this case in the context of the ebb and flow of the law on postconviction relief over the last 15 years. Beginning in the 1990's, the Florida Supreme Court expanded the availability of postconviction relief. Concrete evidence of this expansion is the growth of postconviction relief cases on this court's docket. In 1998, 573 postconviction relief cases were filed, representing 12.9% of our docket. In 2008, 1192 postconviction relief cases were filed, comprising 23% of our docket. The typical postconviction case has evolved, moving from claims of attorney incompetence relating to a jury finding of guilty to cases such as Gusow's, where defendants seek to set aside plea bargains due to the bad advice their attorneys gave them prior to the plea. In these latter cases the contention is not that an innocent person was unjustly convicted of a crime, always a proper subject of postconviction relief, but that the plea was rendered "involuntary," that but for the bad legal advice, the defendants would not have pleaded guilty.

A crucial case in this development in postconviction law was State v. Leroux, 689 So.2d 235 (Fla. 1996), a four-to-three decision. In that case, the defendant alleged that he based his guilty plea on his lawyer's incorrect advice as to his estimated release date; the lawyer told Leroux that he would be released from prison in four years due to his entitlement to gain time credits. Id. at 235. After his incarceration, the Department of Corrections told Leroux that "his counsel's advice was erroneous and he would have to serve over seven years before being released." Id. The Supreme Court recognized that "[m]isrepresentations by counsel as to the length of a sentence or eligibility for gain time can be the basis for a postconviction relief in the form of leave to withdraw a guilty plea." Id. at 236. Although the trial judge correctly advised Leroux about his 15-year sentence and the mandatory minimum sentence of three years, the Supreme Court held that the general question covering whether anyone had "promised" Leroux "anything" to plead guilty did not conclusively rebut Leroux's postconviction relief claim.

Leroux fueled an explosion of cases where defendants sought to set aside guilty pleas based on what their lawyers allegedly told them prior to the plea.²

Major v. State, 814 So.2d 424 (Fla.2002), imposed an analytical framework on this area; the case recognized that prior to the defendant accepting a plea bargain, the trial court and defense counsel have a duty to advise a defendant about the direct, but not the collateral consequences of a plea. The failure to advise about a collateral consequence could not be the basis for postconviction relief to set aside the plea bargain. The court adopted this definition of a "direct consequence" of a plea: "whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment." Id. at 431 (quoting Zambuto v. State, 413 So.2d 461, 462 (Fla. 4th DCA 1982) (quoting Cuthrell v. Director, Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir.1973))); see also Bolware v. State, 995 So.2d 268 (Fla. 2008); State v. Partlow, 840 So.2d 1040 (Fla.2003).

Gusow's claim is not that the trial court failed to advise him of the potential penalties under rule 3.172(c)(1)³, but that defense counsel told him that his sentence would be no more than 5 five years if he violated his probation. The sentence the defendant might receive if he violated his probation was collateral to the plea — it was not "definite, immediate," and "largely automatic" as a result of his plea. The important term of this plea bargain was that Gusow was sentenced to probation for 47 felonies; the length of a prison term might come into play only if Gusow violated his probation and the court, in its discretion, revoked probation and decided that the violation justified more than five years in prison instead of a myriad of other sentencing alternatives.⁴

Because this case involves a claim of wrong attorney advice about a matter collateral to the plea bargain, it is controlled by State v. Dickey, 928 So.2d 1193 (Fla.2006). There, the Supreme Court held that

claims that a defendant entered a plea based on wrong advice about a potential sentence enhancement for a future crime fail to meet the Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] test [for constitutionally deficient assistance to a defendant], either because such claims do not demonstrate deficient performance in the case at issue or because, as a matter of law, any deficient performance could not have prejudiced the defendant in that case.

Id. at 1198. This case is similar to Dickey, in that the attorney advice at issue involves a potential sentence for a future violation of the law, a violation of probation. Thus, following Dickey, we hold that "wrong advice about the consequences" for a violation of the law "not yet committed cannot constitute ineffective assistance of counsel." Additionally, the driving motivation for the defendant to accept the plea was that he received probation for 47 felonies, not the potential maximum sentence if he violated his probation.

If we were not constrained by the Leroux framework and were writing on a blank slate, we would adopt the analysis of Justice John Paul Stevens' dissent in United States v. Smith, 440 F.2d 521, 528-29 (7th Cir.1971),⁵ written when the justice was on the seventh circuit. The dissent argued that a guilty plea should not be subject to collateral attack unless the error is constitutional or jurisdictional in nature. Id. at 528. Justice Stevens believed that collateral attacks to a conviction should be permitted only to correct serious "fundamental" constitutional errors, errors that resulted in a manifest injustice.

Justice Stevens drew a distinction between the "voluntariness" of a plea, which has a constitutional dimension because it involves the waiver of the right to a jury trial, and the "wisdom" of a plea. Justice Stevens explained that a defendant's lack of knowledge about the actual sentence to be imposed does not affect the voluntariness of the plea in a constitutional manner which would permit collateral attack. He wrote:

The `consequences' of the plea of guilty which relate to voluntariness, and therefore have constitutional significance, are consequences of the plea rather than consequences of the conviction. The same punishment may be imposed in consequence of conviction regardless of whether the accused pleaded guilty or not guilty. But the waiver of constitutional protections, which would be available if the defendant elected to stand trial, is a consequence of the plea itself. In order for the plea to be voluntary, the defendant's understanding of the protections he is waiving must be sufficient to guarantee that the waiver is not the product of ignorance, terror, or deception.

Id. at 530 (footnote omitted). Justice Stevens explained that the consequences of conviction, such as a sentence or, as it applies to this case, the potential sentence for a violation of probation, do not have the same constitutional significance as the consequences of a plea:

The consequences of conviction have a different significance. They relate to the wisdom of a decision to plead guilty rather than to the voluntariness of the decision. A variety of factors enter into the exercise of judgment which produces that decision. Among them are counsel's appraisal of the likelihood of a successful defense, the admissibility of critical items of evidence, the question whether the accused can conscientiously make a false denial of guilt, the opprobrium that may result from a public trial, an estimate of the sentence which the judge may impose, and the chance of probation or parole. An erroneous appraisal of any of those factors affects the wisdom of the plea, but does not make it involuntary.

Id. at 530. Under Justice Stevens's analysis, Gusow's postconviction claim is meritless, because it relates only to the wisdom of his decision to plead guilty, viewed through the lens of hindsight; Gusow's claim is without constitutional...