Patterson v. State

310 So.3d 1005

Derrion T. PATTERSON, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D19-2495

District Court of Appeal of Florida, Second District.

Opinion filed July 29, 2020.

Derrion T. Patterson, pro se.

Ashley Moody, Attorney General, Tallahassee, and William Stone, Jr., Assistant Attorney General, Tampa, for Appellee.

MORRIS, Judge.

Derrion T. Patterson appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because we conclude that his claim that his counsel provided ineffective assistance by failing to advise him of a possible coerced consent defense and/or to file a motion to suppress was not refuted by the record, we reverse the portion of the order denying that claim. We affirm the remaining portion of the postconviction court's order.

BACKGROUND

Patterson originally pleaded no contest to burglary of a conveyance with assault or battery while armed with a firearm, robbery with a firearm, and aggravated assault with a firearm, and he was sentenced accordingly. He subsequently sought to withdraw his plea, arguing that he was not guilty of the crimes, but that motion was denied. He did not argue in that motion that his attorney failed to advise him of potential defenses. His direct appeal from his judgment and sentences was per curiam affirmed. See Patterson v. State, 252 So. 3d 170 (Fla. 2d DCA 2018).

In his current postconviction motion, Patterson raised two claims. In his first claim, he argued that the State breached the plea agreement by preventing, interfering with, or failing to cooperate with a condition precedent and the specific performance of the agreement. That claim was summarily denied by the postconviction court, and we find no error in that denial.

In Patterson's second claim, he argued that while he gave consent to a Polk County Sheriff's Office deputy to search the contents of his phone, it was coerced. Specifically, he alleged that he had been arrested on an unrelated charge and handcuffed, at which time his cell phone was seized. He further alleged that on the way to the sheriff's office, the deputy began scrolling through his unlocked cell phone without first obtaining consent or a warrant. Later, after arriving at the sheriff's office, Patterson was informed that he was under investigation for the crimes to which he ultimately entered his pleas. Patterson contended that it was only after he had been arrested on the unrelated charge, after he had observed the deputy looking through his phone, and after being told that he was being investigated for the other crimes that he was asked for consent to search the phone. Thus, Patterson argued that he believed the deputy had authority to search his phone, thereby rendering Patterson's consent to the search to be mere acquiescence to that authority.

Upon searching the contents of the phone, the deputy discovered pictures of money and a black handgun that Patterson had sent to his girlfriend. Patterson asserted that he had never mentioned his girlfriend to the deputy prior to that point, nor had his girlfriend contacted the sheriff's office. As a result of discovering the girlfriend's contact information, the deputy made contact with her, ultimately obtaining statements from her that were utilized in the prosecution of Patterson. In fact, the deputy used some of the information provided by the girlfriend to obtain a search warrant for the phone.

Patterson argued that if his counsel had investigated the facts surrounding the various searches of the cell phone and filed a motion to suppress thereon, there was a reasonable probability that the motion would have been granted. Patterson also argued that his counsel was ineffective for failing to advise him of and/or investigate a potential defense. He contended that none of the exceptions to the warrant requirement applied in this case, and he argued that neither the inevitable discovery nor the independent investigation doctrines applied because of the alleged initial illegal search. Patterson argued that if his counsel had advised him of the potential defense and filed the motion to suppress, it would have been granted and he would have proceeded to trial.

The State was ordered to file a response to claim two. After it did so, the postconviction court entered its final order summarily denying claim two, stating:

In claim 2[,] the Defendant argues that trial counsel was ineffective for failing [to] file a Motion to Suppress. The State responds that the record is devoid of any suggestion that [the questioning deputy] acted in an overbearing manner. Defendant was cooperative throughout the encounter and scrolled through his own phone while [the questioning deputy] sat beside him. The State further argues that the fruits of the search warrant would not have been suppressed on the grounds stated by the Defendant. Defendant has failed to establish deficient performance or prejudice.

Upon receiving this appeal and reviewing Patterson's arguments, we issued a Toler ¹ order to the State, wherein we directed the State to address Brown v. State, 270 So. 3d 530, 532-33 (Fla. 1st DCA 2019), and to discuss Patterson's contention that his consent had been coerced. We also directed the State to address whether, absent Patterson's consent, the evidence at issue would have been otherwise discovered.

In its response, the State first argued that Patterson should not be allowed to go behind his plea since he told the court that he was satisfied with his counsel's representation at the plea hearing. The State also asserted that counsel cannot be ineffective for failing to raise an issue that is without legal merit or would not have altered the proceedings. Notably however, while the State conceded that there were "three separate searches" (the first without consent, the second with consent, and the third pursuant to the warrant), the State failed to address the legality of the first search at all. Instead, the State focused on the second search, arguing that Patterson's consent should not be considered coerced because there was nothing indicating that the second search had been performed pursuant to an invalid warrant or some other acquiescence to a claim of lawful authority. The State argued that neither Patterson's status as a juvenile nor his subjective belief about whether he could withhold consent should be interpreted to mean he was coerced. The State dismissed the fact that Patterson had been under arrest when the first two searches occurred, arguing that it should not change the outcome.

The State also contended that the evidence would have been inevitably discovered because the search warrant did not rest on the alleged illegal initial searches and because there was other adequate probable cause to obtain a search warrant.² In addressing Brown, the State summarily rejected its application to this case, noting that it involved a review of the plea colloquy and guilty plea form and that the State conceded error in that case. The State also pointed out that the First District did not address the inevitable discovery doctrine in Brown.

ANALYSIS

The problem with both the postconviction court's summary denial of claim two and the State's response to our Toler order is that they do not really address the crux of Patterson's claim: that his counsel was ineffective for failing to advise him of a possible coerced consent defense. While it is true that a postconviction motion cannot be used to go behind the representations a defendant made at a plea hearing, "[a] trial attorney's failure to investigate a factual defense or a defense relying on the suppression of evidence, which results in the entry of an ill-advised plea ... has long been held to constitute a facially sufficient attack upon the conviction." Brown, 270 So. 3d at 532-33 (alteration in original) (quoting Fry v. State, 217 So. 3d 1139, 1140 (Fla. 1st DCA 2017) ). "A claim of ineffective assistance of counsel for failure to advise a defendant of a potential defense can state a valid claim if the defendant was unaware of the defense and can establish that a reasonable probability exists that [he] would not have entered the plea if properly advised." Id. (quoting Fry, 217 So. 3d at 1141 ). "Therefore, it is error to summarily deny a claim of ineffective assistance of counsel based on counsel's failure to investigate a potential defense or file a motion to suppress evidence where the record attachments do not conclusively show that the defendant was made aware of the potential defense or suppression issue prior to entering the plea." Id.; see also Myers v. State, 247 So. 3d 78, 80 (Fla. 2d DCA 2018) ; Fernandez v. State, 135 So. 3d 446, 447-48 (Fla. 2d DCA 2014) ; Zanchez v. State, 84 So. 3d 466, 468 (Fla. 2d DCA 2012).

Here, the postconviction court focused on the lack of evidence that the questioning deputy had acted in an overbearing manner. But that finding does not address the fact that Patterson had already been arrested on an unrelated charge and had already observed the deputy looking on his phone.

In V.P.S. v. State, 816 So. 2d 801, 801-03 (Fla. 4th DCA 2002), officers went to a house where V.P.S., a juvenile, resided. The officers had an arrest warrant for another individual, and when V.P.S. opened the door, the officers told V.P.S. about the warrant and asked about the named individual. Id. at 802. Although V.P.S. denied that the named individual was in the apartment, he gave consent to the officers when they asked if they could search the apartment. Id. During the search, officers found drug paraphernalia which V.P.S. admitted belonged to him. Id.

On appeal from his delinquency...