KEITH B. PARHM, DOC #C01111, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit
Court for Manatee County; Susan Maulucci, Judge.
B. Parhm, pro se.
Parhm seeks review of the postconviction court's order
summarily denying his motion for postconviction relief filed
in accordance with Florida Rule of Criminal Procedure 3.850.
We affirm without comment the postconviction court's
order on all of the claims asserted except claim one. With
regard to the postconviction court's summary denial of
Mr. Parhm's first claim-ineffective assistance of counsel
for failing to inform him of the elements of the offenses
charged and his available defenses-we reverse and remand for
Parhm was charged with violating the Florida Racketeer
Influenced and Corrupt Organizations (RICO) Act (count one)
and conspiracy to violate the Florida RICO Act (count two)
for his participation in numerous drug deals as a member of a
criminal street gang. On November 5, 2008, Mr. Parhm entered
into a negotiated no contest plea on counts one and two. As
part of the plea deal, Mr. Parhm was to cooperate with law
enforcement and his sentencing was deferred. On June 5, 2009,
after his motion to withdraw his plea was denied, Mr. Parhm
was sentenced to thirty years' prison on both counts. The
trial court designated the sentences to run concurrently. Mr.
Parhm appealed, and this court affirmed his judgment and
sentences. Parhm v. State, 44 So.3d 589 (Fla. 2d DCA
2010) (table decision).
March 2014, Mr. Parhm filed his third amended motion for
postconviction relief under rule 3.850. In his motion, Mr.
Parhm raised six different grounds: (1) ineffective
assistance of counsel for failure to inform Mr. Parhm of the
elements of the charges and any corresponding defenses; (2)
ineffective assistance of counsel for failure to obtain
additional time for Mr. Parhm to consider the State's
plea offer; (3) a claim that the plea was involuntary because
Mr. Parhm did not understand the consequences of his plea
agreement; (4) a claim that the sentence imposed was
vindictive; (5) a claim that the racketeering statute was
unconstitutional; and (6) a claim of cumulative error. On
June 29, 2016, the postconviction court entered an order
summarily denying all six of the grounds asserted in the
motion. On appeal, Mr. Parhm challenges only the denial of
his first four claims. We will discuss Mr. Parhm's first
claim below. His remaining claims are without merit and do
not warrant further discussion.
first claim, Mr. Parhm alleged that his trial counsel was
ineffective for failing to advise him regarding the elements
of the charges and the corresponding defenses. Specifically,
Mr. Parhm alleged that his trial counsel failed to inform him
that a conviction for racketeering required that the
predicate incidents in which he was engaged must have
"the same or similar intents, results, accomplices,
victims, methods of commission, or were interrelated by
distinguishing characteristics, rather than being isolated
incidents." Mr. Parhm further alleged that trial counsel
failed to inform him that conspiracy to commit racketeering
required proof of specific intent. Mr. Parhm also alleged
that his trial counsel was ineffective for failing to inform
him of the corresponding defenses to the charges against him,
such as lack of intent. Mr. Parhm concluded by alleging that
if his trial counsel had properly advised him of the elements
that the State would be required to prove if the case had
proceeded to trial and the defenses available to the charges,
he would not have entered a no contest plea and would have
proceeded to trial.
denying Mr. Parhm's claim as conclusively refuted by the
record, the postconviction court relied on the statement of
the factual basis for the plea recited by the prosecutor
during the plea colloquy. When the trial court asked Mr.
Parhm if he had any objection to the factual basis as stated
by the prosecutor, he responded, "No." Citing these
portions of the record from the plea colloquy, the
postconviction court found: "[Mr. Parhm] was informed of
the elements comprising each charged offense and the specific
incidents underlying the charges, and he did not raise any
objection regarding the incidents being isolated or that he
knowingly participated in the conspiracy." Based on this
finding, the trial court denied claim one as conclusively
refuted by the record.
is nothing in the record attachments to refute Mr.
Parhm's claim that his trial counsel failed to properly
advise him of the elements of the charged offenses and his
available defenses. Also, there is nothing in the record
attachments to refute Mr. Parhm's claim that if he had
been properly advised, he would have declined to enter his no
contest pleas and would have insisted on going to trial.
Although the prosecutor recited the elements of the charges
at the plea hearing, such a brief recitation was not
sufficient to conclusively refute Mr. Parhm's claim that
his counsel failed to advise him regarding the elements of
the charges. Nor was it a proper substitute for the informed
advice of a competent lawyer regarding what the State would
have been obligated to prove in the cases against Mr.
Parhm. Indeed, this is especially true in cases
involving racketeering and conspiracy to commit racketeering,
whose hallmark is their complexity. See generally
Hagopian v. Justice Admin. Comm'n, 18 So.3d 625,
640-42 (Fla. 2d DCA 2009) (discussing the complexity of RICO
prosecutions and their defense); Jennifer Daley,
Tightening the Net of Florida's RICO Act, 21
Fla. St. U. L. Rev. 381, 384 (1993).
the prosecutor's statement of the factual basis for the
plea did not refute Mr. Parhm's claim that his trial
counsel failed to advise him of the availability of specific
defenses to the racketeering and conspiracy to commit
racketeering charges, e.g., that the alleged predicate
incidents were isolated incidents and the State would not
have been able to prove his intent to participate in the
alleged conspiracy. "In order for a trial court to
summarily deny a defendant's claim that his counsel
failed to advise him of a specific defense, the record must
conclusively refute the claim." Jones v. State,
846 So.2d 1224, 1226 (Fla. 2d DCA 2003) (citing Flores v.
State, 662 So.2d 1350, 1351-52 (Fla. 2d DCA 1995))
(reversing the summary denial of defendant's claim that
counsel failed to inform him that consent was an available
defense to a sexual battery charge and remanding for an
evidentiary hearing); see also Fernandez v. State,
135 So.3d 446, 447-48 (Fla. 2d DCA 2014) (reversing the
summary denial of defendant's claim that counsel failed
to advise him of the availability of the afterthought defense
to a robbery charge and remanding for an evidentiary
we reverse the denial of Mr. Parhm's claim one and remand
for the postconviction court either to attach specific
portions of the record refuting Mr. Parhm's allegations
in claim one or to conduct an evidentiary hearing. In all
other respects, we affirm the postconviction court's
in part, reversed in ...