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Molina v. State

Florida Court of Appeals, Third District

November 8, 2017

Marcus Molina, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County No. 14-8053, Ellen Sue Venzer, Judge.

          Marcus Molina, in proper person.

          Pamela Jo Bondi, Attorney General, for appellee.

          Before ROTHENBERG, C.J., and FERNANDEZ and LUCK, JJ.

          ROTHENBERG, C.J.

         Marcus Molina ("the defendant") appeals the trial court's order denying his motion for postconviction relief in which he raised two grounds of ineffective assistance of trial counsel: (1) the failure of his trial counsel to request a presentence investigation prior to the imposition of sentence; and (2) the failure of his trial counsel to correct the plea agreement the defendant signed, which the defendant claims does not reflect the terms his lawyer had told the defendant he would be accepting pursuant to the negotiated plea. We affirm.

         The record reflects that after sexually assaulting his stepdaughter on numerous occasions over a two-year period beginning when his stepdaughter was approximately thirteen years old, the defendant, accompanied by his pastor, turned himself in to the police and confessed to committing the following sexual acts upon the victim: (1) sucking the victim's breasts, performing oral sex (his mouth to her vagina) on the victim, and digitally penetrating the victim's vagina at least ten times; and (2) having penile/vaginal intercourse with the victim at least twenty times. Upon making these admissions, the defendant was arrested and charged with thirty counts of lewd and lascivious battery and thirty counts of lewd and lascivious molestation. Thereafter, the State filed an information charging the defendant with seven counts of sexual activity with a child by a person with familial or custodial authority, first degree felonies, each punishable up to thirty years in prison.

         Based on negotiations with the State, the State and the defendant agreed that the State would file an amended information charging the defendant with seven counts of aggravated child abuse, rather than seven counts of sexual activity with a child by a person with familial or custodial authority, so that the defendant would not be designated a sexual predator; and the defendant would plead guilty to the seven counts of aggravated child abuse, be sentenced to ten years in prison followed by ten years of probation, and as a special condition of probation, the defendant would abide by all of the conditions specially identified in a separate plea agreement signed by the defendant. The defendant accepted these terms, signed the written plea agreement, and after being fully colloquied by the trial court, pled guilty to the amended information, and was sentenced.

         The Defendant's Postconviction Claims

         A. Failure to request a presentence investigation

         The defendant contends that his trial counsel provided ineffective assistance of counsel by not requiring the trial court to order and consider a presentence investigation ("PSI") prior to accepting the defendant's negotiated plea. The defendant further asserts that a PSI "may well have contained a recommendation for a non-incarcerative sanction - which could have provided the trial court with a legitimate basis to depart from the plea-agreement." Although we agree with the defendant that, as a first-time felony offender, he was entitled to have a PSI conducted prior to the imposition of sentence, see Fla. R. Crim. P. 3.170(a); Hardwick v. State, 630 So.2d 1212, 1215 (Fla. 5th DCA 1994), we conclude that the defendant has failed to allege and demonstrate that his trial counsel's failure to request a PSI resulted in any prejudice to him, as required under Strickland v. Washington, 466 U.S. 668, 687 (1984).

         First, we note that this was a negotiated plea, and the defendant received the sentence he specifically negotiated for with the State. The record reflects that prior to entering his plea, the defendant was facing the possibility of a sentence totaling 210 years of incarceration for committing seven separate acts of sexual activity with a child by a person with familial or custodial authority. Each separately charged count carried a maximum sentence of thirty years in prison and the requirement that the defendant, if convicted, must be designated a sexual offender (sexual predator), which would have required that he register as such and have to comply with the numerous lifetime restrictions associated with that designation.

         However, based on the negotiations between defense counsel and the State, the State agreed to reduce the charges to seven counts of aggravated child abuse and the imposition of a sentence of ten years of incarceration followed by ten years of probation with the special conditions listed in the written plea agreement. The agreed-upon resolution of the case was based on the State's desire to shield the child victim from the further trauma of a deposition and testifying at a trial; the State's consideration of the mitigation evidence presented by defense ...


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