Sirota v. State

95 So.3d 313

Keith SIROTA, Appellant,

v.STATE of Florida, Appellee.

No. 4D10–1318.

District Court of Appeal of Florida, Fourth District.

July 18, 2012.

Rehearing Denied Sept. 7, 2012.

Paetra T. Brownlee, Cameron Eubanks and Robert L. Sirianni, Jr., of Brownstone, P.A., Winter Park, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Keith Sirota appeals the denial of his Rule 3.850 motion for postconviction relief. On appeal, Sirota presents argument as to only three issues. The unargued issues are waived. Hammond v. State, 34 So.3d 58 (Fla. 4th DCA 2010); Hedrick v. State, 6 So.3d 688, 692 (Fla. 4th DCA 2009) (citing Doorbal v. State, 983 So.2d 464, 482–83 (Fla.2008)).

We affirm without discussion the denial of all claims except appellant's claim that ineffective assistance of counsel regarding the maximum penalty caused him to reject a favorable plea offer. As to this claim, we are bound by Morgan v. State, 991 So.2d 835 (Fla.2008), to reverse and remand for further proceedings.¹ We certify to the Florida Supreme Court a question of great public importance regarding the scope and proper application of Morgan following two recent decisions of the Supreme Court of the United States which prescribe the minimum requirements of the Sixth Amendment as to these types of claims. Lafler v. Cooper, ––– U.S. ––––, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012); Missouri v. Frye, ––– U.S. ––––, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012).

Factual Background

In an internet chatroom called “I Love Older Men,” Sirota contacted a police officer who was posing as a thirteen-year-old girl and over a period of months repeatedly discussed in graphic detail his desire to have sex with her. He sent her photographs of his erect penis and was arrested when he went to meet the girl at a church. He confessed to police.

Sirota's defense at trial was that he believed he was roleplaying with an adult. He testified about his depression and how it led him to engage in sexual fantasies regarding older women because he had always fantasized about sex with his mother. He alleged that he went into the “I Love Older Men” chatroom after he could not get into the “I Love Older Women” chatroom which he frequented but which was full on that particular day. He alleged that he went into the “I Love Older Men” chatroom because he “wondered if women role-play and act out these fantasies that men do.”

In 2007, a jury convicted Sirota of soliciting a child under sixteen years of age via the internet and three counts of transmission of material harmful to a minor. The court sentenced him to a composite sentence of five years in prison followed by ten years of sexual offender probation. This court affirmed the conviction but remanded for correction of a scrivener's error. Sirota v. State, 977 So.2d 700 (Fla. 4th DCA 2008).

In the postconviction claim at issue, Sirota argued that trial counsel misadvised him causing him to proceed to trial with a prohibited “diminished capacity” defense. In support of his defense, Sirota was permitted to testify at trial about events in his life that had caused him to suffer from depression and that his depression had led to destructive behavior such as participating in roleplaying fantasies involving older women in internet chat rooms. The trial court ultimately ruled, however, that Sirota could not present testimony from his therapist regarding Sirota's depression having led to his sexual fantasies and roleplaying. Counsel argued that the therapist's testimony was relevant to Sirota's state of mind and whether his depression caused him to slip further into his sexual fantasies. The court determined that the testimony was inadmissible evidence of diminishedcapacity and that Sirota had failed to show how the testimony was otherwise relevant to an issue in the case.

The trial court's refusal to allow this testimony was argued on direct appeal and affirmed. Sirota alleges that counsel led him to believe the therapist's testimony would be admissible and that any refusal to admit the testimony would lead to automatic reversal on appeal. He also claims that counsel told him that the maximum sentence he could receive after trial was 3.5 years in prison and that he relied on these statements in rejecting a plea offer for five years of probation. He claimed generally that counsel misled him to believe that “he had a viable defense, viable evidence, viable witnesses, strong issues on appeal, and the risk of only having to face and serve 3.5 years in state prison should he lose.” He claimed that he would have accepted the alleged offer for five years of probation if properly advised.

In its response to this court's order to show cause, the State contends that the claim was not sufficiently pleaded because Sirota did not allege specifics regarding the alleged plea offer, such as the precise terms of the offer, when the offer was allegedly made, or whether the offer had an expiration date. The State argues that, even if the claim was sufficiently pleaded, the record refutes the allegation that counsel asserted a prohibited diminished capacity defense at trial. The defense at trial was that Sirota lacked the specific intent to communicate with a minor because he believed he was roleplaying with an adult pretending to be a minor. The State's response does not address appellant's allegation that his attorney misadvised him about the maximum sentence he could receive if convicted after trial.

Analysis

Florida courts have recognized claims of ineffective assistance of counsel where an attorney's specifically-described deficient performance results in the loss of a favorable plea offer which the defendant would have accepted. To state a sufficient claim, the defendant must establish: “(1) counsel failed to convey a plea offer or misinformed the defendant concerning the possible sentence he faced, (2) the defendant would have accepted the plea but for counsel's failures, and (3) acceptance of the plea would have resulted in a lesser sentence than was ultimately imposed.” Morgan v. State, 991 So.2d 835, 839–40 (Fla.2008). Pursuant to Cottle v. State, 733 So.2d 963, 969 (Fla.1999), to establish prejudice, a defendant was not required to show that the trial court would have accepted the plea arrangement.

In two recent decisions, the Supreme Court of the United States recognized that the Sixth Amendment right to counsel encompasses a right to effective assistance of counsel during plea bargaining. In Lafler v. Cooper, –––U.S. ––––, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), an attorney's bad advice about the merits of a defense caused the defendant to reject a favorable plea offer, and the defendant received a harsher sentence following a conviction after jury trial. The defendant in Cooper had corresponded with the trial court and expressed a willingness to admit guilt and accept the prosecutor's plea offer, but rejected the offer in open court apparently because counsel had convinced the defendant to do so. Id. at 1383. The parties in Cooper stipulated that counsel had performed deficiently in advising defendant about the plea offer, and the Court decided only whether prejudice to state a sufficient claim could be established. Id. at 1384. The Court did not explore whether counsel's conduct truly amounted to constitutionally deficient performance in that case. Id.

The Court recognized the sufficiency of the ineffective assistance claim in this situation, but held that the proper remedy was not necessarily to compel the prosecutor to re-extend the plea offer. The Court explained that, where the only difference between the lost plea offer, and the result after trial, is in the severity of the sentence, the court may conduct an evidentiary hearing to determine whether the defendant would have accepted the offer; and if so, the court then has discretion to impose the offered sentence, the sentence imposed after trial, or anything in between. Id. at 1389. Where resentencing is not alone sufficient to remedy the “constitutional injury,” such as where the lost offer involved lesser offenses, the proper remedy “may be” to require the State to re-extend the offer. Id. The trial court then has discretion to accept the plea arrangement or allow the conviction to remain undisturbed.

In a companion case, Missouri v. Frye, ––– U.S. ––––, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), the attorney failed to convey a plea offer which then expired, and the defendant later entered an open plea and received a harsher sentence. The Court recognized the sufficiency of the ineffective assistance of counsel claim in this posture, but clarified what a defendant must prove to establish prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In addition to showing a reasonable probability that the defendant would have accepted the offer, the defendant must demonstrate “a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.” Frye, 132 S.Ct. at 1409. In Frye, the Court recognized that it was up to the states to determine whether to permit a prosecutor to withdraw a plea offer once it has been accepted by a defendant or to permit a court to reject a plea deal struck by the state and the defendant. Id. at 1410–11.

Frye involved a written plea offer with a deadline for acceptance. Frye, 132 S.Ct. at 1404.Cooper involved a formal plea offer conveyed to the defendant on the record in open court at a pretrial conference. Cooper v. Lafler, No. 06–11068, 2009 WL 817712, at *3 (E.D.Mich. Mar. 26, 2009). The Court in Frye limited its holding to the specific facts of that case. The court held that generally “defense counsel has the duty to communicate formal offers from the prosecution to...