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Guzman-Aviles v. State

Florida Court of Appeals, Fifth District

August 25, 2017

MAX MAGIC GUZMAN-AVILES, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         3.850 Appeal from the Circuit Court for Seminole County, Donna L. McIntosh, Judge.

          Max Magic Guzman-Aviles, Quincy, pro se.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.

          LAMBERT, J.

         Max Guzman-Aviles appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We affirm the denial of grounds three, four, and six of his motion without further comment. As to the remaining grounds one, two, and five, we also affirm, but not for the reasons provided by the postconviction court.

         Guzman-Aviles was charged with robbery with a deadly weapon by being in actual possession of a firearm, a first-degree felony punishable by life imprisonment, [1] and fleeing or attempting to elude a police officer, a third-degree felony.[2] Guzman-Aviles entered into a negotiated plea agreement and, consistent with this agreement, was sentenced to a ten-year mandatory minimum prison sentence for the armed robbery, followed by five years of probation, and to a concurrent five years' imprisonment for the fleeing or attempting to elude a police officer.

         In his facially sufficient motion for postconviction relief, Guzman-Aviles asserted in grounds one and five that his counsel was ineffective for failing to file a pretrial motion to exclude or suppress the firearm from evidence because, according to Guzman-Aviles, the gun could not be connected to him. Guzman-Aviles specifically alleged that the gun was not found in his possession at the time of arrest, the police report does not reflect that the officer who pursued Guzman-Aviles saw him discard the firearm during the chase leading up to his arrest, the firearm was found in a public area two-and-one-half miles from where the crime occurred, and the firearm was never shown to the victim to identify it as the one used in the commission of the crime. In ground two of his motion, Guzman-Aviles alleged that his counsel was ineffective for failing to file a pretrial motion to suppress the victim's identification of Guzman-Aviles at a show-up[3] done at the arrest site because the show-up was impermissibly suggestive. Guzman-Aviles asserted that he asked counsel to file these motions, but that counsel erroneously told him that motions to suppress this evidence could not be filed. He further alleged that there was a high probability that the motions, if filed, would have been granted. Finally, Guzman-Aviles alleged that, but for his trial counsel's misadvice, he would not have entered his no-contest plea and would have insisted upon proceeding to trial.

         In summarily denying the motion, the postconviction court held that because Guzman-Aviles entered a negotiated plea, "[t]he effect of [the] plea [was] to preclude an attack, by way of a post-conviction motion, on the validity of evidence or the admissibility of evidence, " quoting Parker v. State, 603 So.2d 616, 617 (Fla. 1st DCA 1992). The court attached to the order on appeal a copy of the plea agreement and the transcript from the change of plea hearing at which Guzman-Aviles testified that he was waiving his right to trial and to confront the State's evidence and that he was not coerced into entering the plea. The court concluded that Guzman-Aviles voluntarily entered his plea and that his motion was "simply an insufficient attack on the plea bargain, " citing to Henry v. State, 679 So.2d 885, 886 (Fla. 5th DCA 1996), and Stano v. State, 520 So.2d 278, 279-80 (Fla. 1988) (holding that the defendant could not go behind his plea by alleging that counsel should have investigated more because entry of the plea cuts off inquiry into all that precedes it).

         To the extent that the postconviction court interpreted Stano and Henry to preclude any challenges to a counsel's effectiveness following a plea, we disagree. In Stano, defense counsel placed on the record at the plea hearing that he had not yet received full discovery from the State and was not fully prepared to advise the defendant as to whether to proceed to trial or if the State had sufficient evidence to convict the defendant or not. 520 So.2d at 280. Counsel also stated that the defendant confirmed to him that he had voluntarily confessed to law enforcement after being advised of his rights, that the defendant wanted to plea to avoid further delay, and that he did not want to proceed to trial. Id. Under these circumstances, the court found Stano's claim that counsel was ineffective for failure to make a proper investigation to be conclusively refuted by the record and that by insisting on pleading guilty and advising counsel that he had confessed freely and voluntarily, the defendant rendered any further investigation pointless. Id. at 281. In Henry, the defendant made a generic allegation that "his counsel was ineffective because he failed to further investigate the case." 679 So.2d at 886. However, unlike the instant case, the defendant in Henry made no claim that his counsel was ineffective for failing to file a motion to suppress or how the failure to do so affected the voluntariness of his plea. In contrast, Guzman-Aviles essentially alleged that the evidence necessary for filing a motion to suppress evidence was known to his counsel but that his counsel mistakenly advised him that no motion to suppress could be filed, which Guzman-Aviles claimed to prejudicially rely upon in entering his plea.

         "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 of guilty, has long been held to constitute a facially sufficient attack upon the conviction." MacKinnon v. State, 39 So.3d 537, 538 (Fla. 5th DCA 2010) (quoting Williams v. State, 717 So.2d 1066 (Fla. 2d DCA 1998)). In Hampton v. State, 217 So.3d 1096 (Fla. 5th DCA 2017), this court recently held that a postconviction court erred in determining that a defendant's no-contest plea precluded a postconviction attack on the admissibility of evidence because "a rule 3.850 motion alleging that 'trial counsel provided ineffective assistance by failing to file a motion to suppress is a legally sufficient claim, which is not waived by an entry of a plea.'" 217 So.3d at 1097 (quoting Spencer v. State, 889 So.2d 868, 870 (Fla. 2d DCA 2004)). Moreover, the plea agreement attached to the order on appeal does not conclusively refute Guzman-Aviles' claim that counsel was ineffective for failing to move to suppress evidence, nor did the trial court's plea colloquy with Guzman-Aviles address any specific issues regarding the suppression of evidence. See Zanchez v. State, 84 So.3d 466, 468 (Fla. 2d DCA 2012) (holding that a general plea colloquy did not refute or address the specific issue of an alleged illegal search); Jones v. State, 846 So.2d 1224, 1226 (Fla. 2d DCA 2003) (stating that a defendant's confirmation of satisfaction with counsel during a generalized plea colloquy was insufficient to refute a postconviction claim based on counsel's failure to advise of a specific defense). Thus, we find that Guzman-Aviles' plea, by itself, did not preclude his ability to timely seek postconviction relief based upon the ineffective assistance of his counsel. Nevertheless, for the following reasons, we affirm the denial order under the "tipsy coachman" rule because the court reached the right conclusion. See Lamb v. State, 212 So.3d 1108, 1112 (Fla. 5th DCA 2017) (applying the "tipsy coachman" rule in a rule 3.850 summary proceeding); Foss v. State, 24 So.3d 1275, 1276-77 (Fla. 5th DCA 2009) (same); Montero v. State, 996 So.2d 888, 890 (Fla. 4th DCA 2008) (affirming a postconviction court's denial of a rule 3.850 motion for reasons other than those given by the court in its order of denial).

         A defendant seeking postconviction relief based upon the alleged ineffective assistance of counsel must plead and prove both deficient performance of counsel and prejudice to the defendant. Grosvenor v. State, 874 So.2d 1176, 1178 (Fla. 2004) (citing Strickland v. Washington, 466 U.S. 668 (1984)). There is a similar two-prong test for ineffective assistance of counsel claims relating to cases resolved by a guilty or no-contest plea. Hill v. Lockhart, 474 U.S. 52, 57-59 (1985). The first prong is the same as in Strickland, while the second "prejudice" prong requires that a defendant 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." Grosvenor, 874 So.2d at 1179 (quoting Hill, 474 U.S. at 59). This second prong focuses the court's analysis on "whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill, 474 U.S. at 59.

         As previously discussed, Guzman-Aviles alleged that he asked his counsel to move to suppress the firearm and the out-of-court identification but that his counsel misadvised him that he could not file these motions and that the evidence would be admissible at trial. Guzman-Aviles claims that, but for his counsel's misadvice and deficient performance in not pursuing these motions to suppress this evidence, he would not have pleaded no contest and would have insisted on proceeding to trial. Nevertheless, a defendant's assertion of insisting on going to trial, standing alone, does not entitle a defendant to postconviction relief. Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001) (citing United States v. Gordon, 4 F.3d 1567, 1571 (10th Cir. 1993)). Rather, the court evaluates such a claim from an objective standpoint, by applying the totality of the circumstances test as explained in Grosvenor:

[I]n 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 ...

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