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Filipkowski v. State

Florida Court of Appeals, Second District

June 8, 2018

LEONARD RICHARD FILIPKOWSKI, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County; William D. Sites, Judge.

          Leonard Richard Filipkowski, pro se.

          LAROSE, CHIEF JUDGE.

         Leonard Richard Filipkowski appeals a final order summarily denying his motion and amended motions for postconviction relief. See Fla. R. Crim. P. 3.850. He sought relief on three grounds. Grounds one and two are legally insufficient or conclusively refuted by the record. Accordingly, we affirm, without further discussion, the order as to those grounds. In ground three, however, Mr. Filipkowski may be able to state a facially sufficient claim if given an opportunity to amend his motion to assert the requisite prejudice. We reverse the order as to ground three and direct the postconviction court to strike it with leave to amend within a reasonable time.[1]

         Mr. Filipkowski pleaded no contest and was convicted of four counts of lewd and lascivious molestation of a victim over twelve and under sixteen years of age; two counts of lewd and lascivious exhibition to a victim under sixteen years of age; battery; possession of a photograph of a sexual performance by a child; and use of a computer server to seduce, solicit, or entice a child. The trial court sentenced Mr. Filipkowski to time served on the battery count; it imposed consecutive five-year sentences for a total of forty years' imprisonment on the remaining counts. Mr. Filipkowski did not pursue a direct appeal.

         Mr. Filipkowski filed a timely, counseled motion for postconviction relief. In ground three, he alleged that his plea was involuntary because the trial court failed to explain, as required by Florida Rule of Criminal Procedure 3.172(c)(1), that the maximum possible sentence was 105 years' imprisonment[2] if the court imposed consecutive sentences for each offense. Allegedly, "he would not have entered into the Plea Agreement he did had he been informed of the maximum number of years that could be imposed or that the Counts to which he was entering his plea could be run consecutively; totaling up to 105 years."

         Mr. Filipkowski also alleged that his trial counsel was ineffective for failing to advise him of the plea terms, including the possibility of a 105-year prison term. Mr. Filipkowski failed to allege prejudice resulting from counsel's alleged deficient performance. Instead, he recognized that he "must meet a high threshold to withdraw a plea after Sentencing, and it is [his] burden to prove that a manifest injustice has occurred and that a withdrawal of the plea is necessary to correct that injustice, [and] is prepared to assume that burden." He asked to withdraw his plea. Alternatively, Mr. Filipkowski requested an evidentiary hearing to determine whether his plea was voluntary.

         The State responded that any failure by the trial court to comply with rule 3.172(c)(1) was a trial court error not subject to collateral review. The State conceded, however, that Mr. Filipkowski was entitled to raise the claim under Marckman v. State, 997 So.2d 1275 (Fla. 2d DCA 2009). Even so, the State argued that the record conclusively refuted Mr. Filipkowski's claim that the trial court failed to comply with rule 3.172(c)(1). It argued that rule 3.172(c)(1) only requires a trial court to advise a defendant of the maximum penalty for each offense, which was done. Thus, the State argued that ground three should be denied.

         In reply, Mr. Filipkowski contended that he was entitled to an evidentiary hearing on his claim that trial counsel failed to inform him about the prospect of consecutive sentences. He maintained that "while it is true that the trial court never advised [him] of the fact that the maximum sentences on all Counts could be run consecutive . . . his trial counsel affirmatively misadvised him of his exposure to consecutive sentencing as well." He requested that "to the extent that the [postconviction court] determines that it is required that [he] swear, under oath, that but-for the ineffectiveness of his trial counsel as to the consequences of his plea, he would have proceeded to trial, " he be given a reasonable opportunity to amend his motion in accordance with Spera v. State, 971 So.2d 754 (Fla. 2007).

         Thereafter, the postconviction court summarily denied relief on ground three:

Defendant's third claim is that his plea was involuntarily entered as he was never informed of his maximum statutory exposure. During the plea colloquy, the Defendant was informed that counts one through seven and nine were second degree felonies, punishable by up to 15 years; and that counts eight, ten, eleven and twelve are third degree felonies punishable by up to 5 years. The Court agrees with the State's response that this was sufficient to inform the Defendant of the maximum possible penalty of the charges.

         We review an order summarily denying a postconviction motion de novo. See Martin v. State, 205 So.3d 811, 812 (Fla. 2d DCA 2016). To plead a facially sufficient ineffective assistance of trial counsel claim, Mr. Filipkowski must plead facts establishing that his or her trial counsel's performance was deficient and that he was prejudiced thereby. See id. (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). "In the plea context, a defendant satisfies the prejudice requirement only where he can demonstrate 'a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.' " Hernandez v. State, 124 So.3d 757, 762 (Fla. 2012) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). "[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient." Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000); see also Fla. R. Crim. P. 3.850(f)(5).

         In his reply, Mr. Filipkowski abandoned his claim of involuntary plea based upon the trial court's failure to comply with rule 3.172(c)(1). He focused on trial counsel's alleged deficient performance.[3] Counsel's alleged inaccurate advice about the length of a sentence can be a basis for postconviction relief when not conclusively refuted by the record. Baker v. State, 879 So.2d 663, 664 (Fla. 5th DCA 2004); see also Campbell v. State, 139 So.3d 490, 494 (Fla. 2d DCA 2014) (holding that a defendant's allegation that had he been properly advised of the maximum penalty that he faced he would not have entered a plea but ...


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