Mathis v. State

204 So.3d 104

Richard MATHIS, Appellant,

v.STATE of Florida, Appellee.

No. 1D14–2695.

District Court of Appeal of Florida, First District.

Nov. 14, 2016.

Michael J. Titus, Assistant Conflict Counsel, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.

WINSOR, J.

When Richard Mathis went to trial on charges of child sexual abuse, his defense attorney faced a daunting challenge. Mathis faced charges of (1) sexual battery on a child under twelve—"commonly known as capital sexual battery," Roughton v. State, 185 So.3d 1207, 1208 (Fla.2016) ; (2) unlawful sexual activity with a child between twelve and sixteen; and (3) unlawful sexual activity with a child aged sixteen or seventeen. All three counts related to the same victim—Mathis's niece—but each covered a different time period. The latter two were second-degree felonies, but the first charge was the most serious: a conviction for capital sexual battery carries a mandatory life sentence. §§ 794.011(2)(a), 775.082(1), Fla. Stat. (2000).

At trial, the niece testified that Mathis assaulted her when she was nine years old. He removed her from the room where she slept, warning he would kill her if she told. And he raped her.

That was the first time. The niece testified that "[i]t happened a lot, plenty of times," but for years, she was too afraid to tell. Mathis raped her when she was twelve. He raped her again (this time on a school bus) when she was still under sixteen. He raped her again (this time with a gun in hand) when she was seventeen. One of the rapes left the underage niece pregnant with her uncle's child. (DNA tests confirmed paternity.)

After hearing all the evidence, the jury convicted Mathis on all three counts. The court sentenced him to the mandatory minimum of life for the capital sexual battery, fifteen years for the other counts. This is Mathis's direct appeal.

Mathis does not challenge his conviction for capital sexual battery, nor does he challenge the resulting life sentence. His sole argument here is that we should reverse his other two convictions based on ineffective assistance of counsel. According to Mathis, any reasonably effective attorney would have moved to dismiss those two charges based on the statute of limitations. The State argues that there was no viable statute-of-limitations defense and that, even if there were, the particular circumstances of this case do not warrant reversal. We do not address the viability of the defense because we conclude that, even if the defense was available, Mathis cannot succeed in this direct appeal. Mathis's claim of ineffective assistance of counsel is left for a rule 3.850 proceeding.¹

"With rare exception, ineffective assistance of counsel claims are not cognizable on direct appeal." Ellerbee v. State, 87 So.3d 730, 739 (Fla.2012). To meet the rare exception, a defendant must demonstrate not only ineffectiveness on the face of the record and indisputable prejudice, but also "an inconceivable tactical explanation for the conduct." Morales v. State, 170 So.3d 63, 67 (Fla. 1st DCA 2015). Here, assuming there was a statute-of-limitations defense as to the lesser counts, it is conceivable that a reasonable attorney might strategically abandon it.

From the beginning, a reasonable attorney would have understood that if convicted of capital sexual battery, Mathis would face a mandatory life sentence. A reasonable attorney also would have understood that Mathis could not credibly argue he never had illegal sexual contact with the victim; it was essentially undisputed that Mathis impregnated the girl when she was underage. A reasonable attorney would have understood that Mathis therefore would have been left to argue that, yes, he had sex with a child, but that the child was at least twelve years old.²

In light of all this, a reasonable attorney might have sought to avoid giving the jury only two choices—capital sexual battery and acquittal. Counsel might have strategically determined that Mathis could fare better if the jury had a third option—convicting him of a sex crime that would not result in a mandatory life sentence. Cf. Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) (noting that an "all-or-nothing choice" may "increase[ ] the risk that the jury will convict ... to avoid setting the defendant free"), overruled on other grounds by Hurst v. Florida, –––U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). In some circumstances, waiving a defense is a good defense. Cf. Flowers v. State, 149 So.3d 1206, 1208 (Fla. 1st DCA 2014) (affirming conviction and noting that counsel admitted his trial strategy was to have the jury instructed on a time-barred, less serious offense); Dixon v. State, 53 So.3d 1242, 1242 (Fla. 2d DCA 2011) (affirming despite clear statute-of-limitations defense because waiver might have been tactical); Morris v. State, 909 So.2d 428, 431–34 (Fla. 5th DCA 2005) (affirming denial of motion to withdraw plea because of possible strategic reasons for counsel's waiving statute-of-limitations defense to avoid harsher sentence).

In this case, it is at least conceivable that Mathis's attorney strategically chose risking convictions on the lesser counts (notwithstanding any viable defense) to increase the chances of an acquittal on the most serious charge. Mathis stood comparatively less to lose with convictions on counts two or three, and perhaps much to gain. Under these circumstances, Mathis has not satisfied the heavy burden he faced in this direct appeal.

AFFIRMED.

ROBERTS, C.J., concurs; LEWIS, J., concurs in result with opinion.

LEWIS, J., concurring in result.

Although I concur in the majority's affirmance in this case, I write to express my agreement with Appellant's argument that the State charged him with lewd or lascivious battery and unlawful sexual activity with a minor outside the applicable statute of limitations period.

According to a Gretna Public Safety Department Offense Event Report, which was for "Sexual Battery," law enforcement was contacted on January 18, 2008, by the Florida Department of Children and Family Services about the victim, who was born on December 5, 1990, and was "seventeen years of age [and] pregnant and there were three possible fathers," one of whom was Appellant. The report noted that all possible fathers were over the age of twenty-four and that a child protection team interview was conducted with the victim on February 4, 2008, during which she identified Appellant, her uncle, as the father of her unborn child, and alleged that he "has been having sexual intercourse with her since she was nine years old until the last time being November 26th 2007 when she ... was sixteen." The report set forth under the date "11/20/2010" the following:

On 03/26/2009, samples of DNA were collected on [the victim] and the [victim's child] to compare with possible fathers. On 10/26/2010 a sample of DNA was collected from [appellant]. Final results were received by Gadsden County.... The results were provided to The Gretna Public Safety Department for review. The results read the following: ... [Appellant] (Father).

On August 1, 2011, the State filed an Information, charging Appellant with "sexual activity with 16 or 17 year old." The State filed an Amended Information on September 14, 2011, adding the charge of sexual battery on a child under twelve years of age by a defendant eighteen years or older. In the Second Amended Information, which was filed on August 13, 2012, the State charged Appellant with sexual battery on a child under twelve years of age by a defendant eighteen years of age or older (Count 1), lewd or lascivious battery (Count 2), and sexual activity with a sixteen- or seventeen-year-old (Count 3). In Count 1, the State alleged that Appellant, between December 5, 1999, and December 4, 2002, did unlawfully commit a sexual battery upon [the victim]...." In Count 2, the State alleged that Appellant "on various dates between December 5, 2002 and November 25, 2007, did unlawfully engage in sexual activity with [the victim] ... by oral[,] anal[,] or vaginal penetration, or union with the sexual organ of another, and the defendant was eighteen years or older, contrary to Section 800.04(4)(a)...." In Count 3, the State alleged that Appellant "[o]n or about November 26, 2007, did unlawfully engage in sexual activity with [the victim] ... a person 16 or 17 years of age, by oral, anal, or vaginal penetration by, or union with, the sexual organ of another, and the defendant was 24 years of age or older, contrary to Section 794.05, Florida Statutes."

During Appellant's trial, trial counsel stated in part, "[T]here's going to be an admission as it relates to Count 3. Straight out of the chute, I will tell the jury that I think there's going to be sufficient evidence for them to likely arrive at a conviction on that count...." Trial counsel continued, "The battle lines, though are from the defense perspective that [the victim's] allegations as relate to Counts 1 and 2 are fiction." Trial counsel later argued, "Not only does she not name [Appellant as the father of her baby]; she suggests other people. And not until the point that she finds out oh, [Appellant] is the father, then all of a sudden the story changes and it becomes I was raped and that's how I got pregnant, and I was previously raped starting back when I was nine years old. There's not a disclosure of any of that stuff initially until she learned that it's [Appellant]." When asked by the trial court if he was satisfied and aware that trial counsel was "planning to do that as part of his trial strategy [concede guilt on Count 3]," Appellant affirmatively responded.

The victim testified that Appellant's sexual abuse began when she was nine years of age and continued through the age of sixteen, and the State presented DNA evidence, showing that Appellant was the father of the victim's child. During his...