Grosvenor v. State

We review Grosvenor v. State, 816 So.2d 822 (Fla. 5th DCA 2002), which certified conflict with Cousino v. State, 770 So.2d 1258 (Fla. 4th DCA 2000), and Mason v. State, 742 So.2d 370 (Fla. 1st DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. This case involves a defendant seeking to vacate a guilty plea because of ineffective assistance of counsel in failing to advise of a possible defense. We must decide whether, in asserting prejudice, defendants must allege that the defense would have succeeded at trial. For the reasons stated below, we hold they do not.

I.

Petitioner Traci Ann Grosvenor and a male companion went on a week-long alcohol and cocaine binge, driving from Sarasota to Tampa and ending in Bushnell in Sumter County. Because of tire problems, they stopped at an auto store closed for the night. A police officer saw them stealing a tire from a car parked in the lot and called the store’s owner, who drove to the store with his son. The officer questioned the two travelers and locked Grosvenor’s friend in the patrol car. Grosvenor left her car with a handgun and shot the officer. An exchange of gunfire occurred, in which the store owner’s son was killed and the store owner wounded. Grosvenor also was hit. A laboratory report revealed traces of marijuana and cocaine in Grosve-nor’s system when she arrived at the hospital.

Grosvenor was indicted for capital first-degree murder, attempted first-degree murder of a law-enforcement officer, attempted first-degree murder with a firearm, robbery with a firearm, and resisting arrest with violence. She was represented by two attorneys from the Fifth Judicial Circuit’s Public Defender’s Office. She told her attorneys that she had used drugs and alcohol on the day of the incident. A tape recording and transcript of a statement she gave to the police confirmed her statement. Her attorneys never discussed with her the possibility of a voluntary intoxication defense.

Grosvenor pleaded guilty to first-degree murder. Later, Grosvenor called a local newspaper and told a reporter that she did not kill anyone and if she had a “split hair chance” at a trial she wanted to take it. The trial judge, after reading the article, sua sponte vacated the guilty plea and attached a copy of the newspaper article to his order. Later, an investigator for the Public Defender’s Office interviewed Grosvenor, as did a psychologist. She detailed her drug and alcohol abuse to both. Again, her attorneys did not advise her about a voluntary intoxication defense. Grosvenor later accepted her attorneys’ advice to avoid a trial and the concomitant possibility of the death penalty. She entered a plea of nolo contendere and was sentenced to two life terms, two fifty-year terms, and one five-year term, all running concurrently.

After she was sentenced, Grosvenor filed a motion for postconviction relief seeking to vacate the judgments and sentences. The motion alleged that “had [she] been informed of her viable defense of voluntary intoxication ... she would not have entered the plea agreement and instead would have proceeded to trial.” The trial court granted an evidentiary hearing on the issue of ineffective assistance of counsel.

Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant alleging ineffective assistance of counsel must prove both deficient performance of counsel and prejudice to the defendant. In this case, the court agreed to assume for purposes of the initial hearing that trial counsel’s performance was deficient and consider only whether Grosvenor suffered prejudice. Grosvenor presented witnesses who testified about her frequent intoxication and her demeanor when intoxicated. Eyewitnesses, however, testified in their depositions that she did not appear intoxicated at the time of the crime. Grosvenor herself told police officers after the incident that she had not been too intoxicated to drive a vehicle, but only had been “a little high, tipsey [sic].”

The deposition of Grosvenor’s lead trial attorney was also admitted into evidence at the hearing. He stated that he considered the voluntary intoxication defense and “decided it was not a valid defense.” Moreover, he stated that Sumter County juries do not even consider drug and alcohol abuse as mitigation — they treat it as another aggravating factor.

The court found that Grosvenor’s voluntary intoxication defense was not “viable” and therefore concluded that she had not demonstrated prejudice.

Grosvenor appealed. The Fifth District affirmed, holding that defendants challenging their guilty pleas based on ineffective assistance of counsel must show that they had a “viable” defense. Grosvenor, 816 So.2d at 822. The court recognized that its decision conflicted with decisions of other district courts and certified conflict with those decisions.

II.

In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the United States Supreme Court established a two-pronged test for determining claims of ineffective assistance of counsel relating to guilty pleas. The first prong is the same as the deficient performance prong of Strickland. See Hill, 474 U.S. at 58-59, 106 S.Ct. 366. Regarding the second prong, the Supreme Court in Hill held that a defendant must demonstrate “a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial.” Id. at 59. The Court followed that statement, however, with an explanation that has caused much confusion:

In many guilty plea cases, the “prejudice” inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error “prejudiced” the defendant by causing him to plead guilty rather than going to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the “prejudice” inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial. See, e.g., Evans v. Meyer, 742 F.2d 371, 375 (C.A.7 1984) (“It is inconceivable to us ... that [the defendant] would have gone to trial on a defense of intoxication, or that if he had done so he either would have been acquitted or, if convicted, would nevertheless have been given a shorter sentence than he actually received”). As we explained in Strickland v. Washington, supra, these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the “idio-syncracies of the particular decisionmaker.” Id., at 695,104 S.Ct. 2052.

474 U.S. at 59-60,106 S.Ct. 366.

Given this language, courts in both Florida and other jurisdictions have interpreted Hill’s explanation of the prejudice prong differently. In Florida, three of the five district courts of appeal have held that a defendant asserting ineffective assistance of counsel relating to a guilty plea is not required to allege a viable defense. Instead, the viability of the defense is relevant to the credibility of the assertion that the defendant would have insisted on going to trial if informed of that defense. See, e.g., Cordes v. State, 842 So.2d 874 (Fla. 2d DCA 2003); Hobbs v. State, 790 So.2d 1164, 1166 (Fla. 4th DCA 2001); Mason v. State, 742 So.2d 370 (Fla. 1st DCA 1999). Several other jurisdictions, including the overwhelming majority of federal circuit courts, also have adopted this approach.

Two districts, however, have interpreted Hill as requiring a defendant to allege that, had the plea not been entered, the defendant would have prevailed at trial. See, e.g., Maples v. State, 804 So.2d 599 (Fla. 5th DCA 2002); Diaz v. State, 534 So.2d 817 (Fla. 3d DCA 1988). A few other jurisdictions also have held that Hill requires that defendants allege that their affirmative defenses would likely have succeeded at trial. These courts rely on the paragraph from Hill quoted above, which explains that in many cases, “the resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.” 474 U.S. at 59, 106 S.Ct. 366 (emphasis added).

In our judgment, however, these courts overlook two things. First, they ignore the- conditional language in the Court’s statement, which notes that such a resolution will occur in many, not all, cases and also notes that the prejudice inquiry will depend largely, but not totally, on the merits of the defense. That in many cases the prejudice inquiry will “largely” resemble a merits analysis, however, does not make them coextensive. Rather, it simply means that the merits of the defense is closely related to the credibility of the defendant’s claim that he would not have pleaded guilty if advised of the defense. Second, these cases ignore the immediately preceding paragraph in Hill, in which the Court first states that the prejudice inquiry “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process ” and then holds unequivocally that “in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S.Ct. 366 (emphases added). In our view, these statements leave no room for a contrary interpretation.

The First District Court of Appeal has offered a cogent analysis of Hill:

As the Court explained in Hill, the “prejudice” requirement “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” 474 U.S. at 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (emphasis added). And the Court further elaborated that, in order to show prejudice, “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. (emphasis added). Immediately following this language, the Court offered a footnote indicating that several federal appeals courts had previously “adopted this general approach” in their decisions. Id. Thomas v. Lockhart, 738 F.2d 304 (8th Cir.1984), and United States v. Gavilan, 761 F.2d 226 (5th Cir.1985), were cited as examples of such decisions. These federal appeals court decisions in turn make it clear that the relevant inquiry for purposes of a Strickland, prejudice analysis in conjunction with a motion to withdraw a plea because of attorney incompetence is whether the outcome of the “plea proceedings” would have been different had competent assistance of counsel been provided. See Thomas v. Lockhart, 738 F.2d at 307; United States v. Gavilan, 761 F.2d at 228.

Brazeail v. State, 821 So.2d 364, 368 (Fla. 1st DCA 2002). We agree with this analysis and conclude that the proper interpretation of Hill is to follow its express language. The merits of any defense, as the Court explained in Hill, is relevant to the credibility of the defendant’s assertion that he would have insisted on going to trial. If the defense was meritless, the defendant’s claim carries much less weight. As one federal court has explained, “[i]t is not necessary for the defendant to show that he actually would have prevailed at trial, although the strength of the government’s case against the defendant should be considered in evaluating whether the defendant really would have gone to trial if he had received adequate advice from his counsel.” Miller v. Champion, 262 F.3d 1066, 1069 (10th Cir.2001).

Our conclusion is buttressed by the Supreme Court’s recent reaffirmation of Hill in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). In Flores-Ortega, counsel failed to notify the defendant of his right to appeal. In granting relief, the Supreme Court explained that the defendant need not demonstrate grounds for a meritorious appeal or even “specify the points he would raise were his right to appeal reinstated.” Id. at 486, 120 S.Ct. 1029. Instead, all that is required is that the defendant show that but for counsel’s error he would have appealed. The Court noted that although evidence of non-frivolous grounds for appeal will give weight to the contention that the defendant would have appealed, such evidence is not required where there are other substantial reasons to believe he would have appealed. Id.

In Flores-Ortega, the Court expressly noted that its analysis “[broke] no new ground, for it mirrors the prejudice inquiry applied in [Hill ].” Id. at 485, 120 S.Ct. 1029. The Court then compared the failure to advise of an appeal to the failure to advise of an available defense:

Like the decision whether to appeal, the decision whether to plead guilty (i.e., waive trial) rested with the defendant and, like this case, counsel’s advice in Hill might have caused the defendant to forfeit a judicial proceeding to which he was otherwise entitled. We held that “to satisfy the ‘prejudice’ requirement [of Strickland ], the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, supra, at 59, 106 S.Ct. 366.

Id. at 485, 120 S.Ct. 1029 (emphasis added). Thus, if Hill needed any clarification, Flores-Ortega provided it.

In sum, we must follow the holding of Hill v. Lockhart. A defendant who has pleaded guilty who claims that defense counsel was ineffective for failing to advise of an available defense establishes Strickland’s prejudice prong by demonstrating a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial. Counsel’s effectiveness is determined according to the totality of the circumstances. Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Therefore, in determining whether a reasonable probability exists that the defendant would have insisted on going to trial, a court should consider the totality of the circumstances surrounding the plea, including such factors as whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial. As the Supreme Court emphasized in Hill, these predictions “should be made objectively, without regard for the ‘idiosyncracies of the particular decisionmaker.’ ” 474 U.S. at 59-60, 106 S.Ct. 366 (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052).

III.

We address one last issue concerning the procedure employed in this case to consider Grosvenor’s ineffective assistance of counsel claim. Grosvenor requested that the circuit court consider the issue of prejudice first, and to assume for the moment that counsel’s performance was deficient. The purported purpose of such bifurcation was the conservation of time and resources. As this case demonstrates, however, sometimes such a process fails to achieve the desired efficiency. In many ineffective assistance of counsel claims — and perhaps more often when the claim concerns a guilty plea — the deficient performance prong and the prejudice prong are related and can involve similar issues. See Roe v. Flores-Ortega, 528 U.S. at 485-86, 120 S.Ct. 1029 (“We recognize that the prejudice inquiry we have described is not wholly dissimilar from the inquiry used to determine whether counsel performed deficiently in the first place.... ”). Where a defendant claims ineffective assistance on the ground that counsel failed to advise of a viable defense, counsel’s consideration of the defense is relevant to whether counsel performed de-ficiently and also informs the credibility of the assertion that the defendant would have gone to trial if told of the defense. Although Hill v. Lockhart itself is silent on the issue, several courts applying it have considered the viability of the defense under the deficient performance prong. See, e.g., Panuccio v. Kelly, 927 F.2d 106, 109-10 (2d Cir.1991) (where “there was a high likelihood” that the intoxication defense would have failed at trial and would have exposed the defendant to a longer sentence, “counsel served adequately during the plea negotiations because he had no duty to disclose the intoxication defense under these circumstances.”) (emphasis added); Savino, 82 F.3d at 602 (relying on an assessment that the defendant could not have presented a “viable intoxication defense” in concluding that there was no showing of deficiency). We agree that the viability of a defense is relevant to determine whether counsel performed deficiently in failing to inform the defendant about that defense.

In this case, much of the evidence presented at the evidentiary hearing would have been relevant to counsel’s alleged deficient performance as well as to prejudice. For example, Grosvenor’s trial counsel testified that he considered the voluntary intoxication defense but that Sumter County juries do not view such a defense with favor. This testimony is relevant to whether Grosvenor’s counsel performed deficiently in failing to inform her of the voluntary intoxication defense. Because the evidentiary hearing and the trial court’s order specifically focused only on the prejudice prong, however, we cannot now consider this evidence to evaluate counsel’s performance.

For all these reasons, we are not convinced that bifurcating the hearing in this case achieved any efficiency. Moreover, when a court considers only the prejudice prong and concludes that no prejudice ensued, a later reversal — which may not happen until more than a year later — may require another evidentiary hearing on the deficient performance prong, thereby unnecessarily prolonging the process. We suggest that courts consider such problems when determining whether to bifurcate an ineffective assistance of counsel claim.

V.

For the reasons stated, we quash the Fifth District’s decision in this case and remand to the circuit court for further proceedings consistent with this opinion. In determining Grosvenor’s claim of ineffective assistance of counsel the trial court is free to consider both the deficient performance and the prejudice prongs of Strickland.

It is so ordered.

ANSTEAD, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.

BELL, J., concurring in part and dissenting in part with an opinion.

WELLS, J., dissenting with an opinion.

. See, e.g., United States v. Todd, 287 F.3d 1160, 1163-64 (D.C.Cir.2002); Daniel v. Cockrell, 283 F.3d 697, 707-08 (5th Cir.2002); Miller v. Champion, 262 F.3d 1066, 1068-69 (10th Cir.2001); Weeks v. Snyder, 219 F.3d 245, 157 (3d Cir.2000); Witherspoon v. Purkett, 210 F.3d 901, 903 (8th Cir.2000); Warner v. United States, 975 F.2d 1207, 1214 (6th Cir.1992); Panuccio v. Kelly, 927 F.2d 106, 108 (2d Cir.1991); Holmes v. United States, 876 F.2d 1545, 1551-52 (11th Cir.1989); Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir.1988); Key v. United States, 806 F.2d 133, 138 (7th Cir.1986); Iaea v. Sunn, 800 F.2d 861, 865-66 (9th Cir.1986); United States v. Giardino, 797 F.2d 30, 31 (1st Cir.1986); People v. Robles, 74 P.3d 437 (Col.Ct.App.2003), cert. denied, No. 03SC241 (Colo. Aug.18, 2003); People v. Rissley, 206 Ill.2d 403, 276 Ill.Dec. 821, 795 N.E.2d 174, 204 (2003); State v. Muriithi, 273 Kan. 952, 46 P.3d 1145, 1148-49 (2002).

. See Savino v. Murray, 82 F.3d 593, 599 (4th Cir.1996) (apparently conflicting with Hooper v. Garraghty), Copas v. Comm’r of Corr., 234 Conn. 139, 662 A.2d 718, 726 n. 10 (1995); State v. Van Cleave, 674 N.E.2d 1293, 1302 (Ind.1996); Mowdy v. State, 638 So.2d 738, 742 (Miss.1994).