         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D18-3147
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HOLLY ELIZABETH CAUDLE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Santa Rosa County.
John F. Simon, Judge.

                       August 16, 2019


PER CURIAM.

    AFFIRMED.

KELSEY and M.K. THOMAS, JJ., concur; B.L. THOMAS, J. concurs
with opinion.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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B.L. Thomas, J., concurring.

     Appellant, Holly Elizabeth Caudle, appeals the denial of her
postconviction motion filed pursuant to Florida Rule of Appellate
Procedure 3.850. Because each of the grounds asserted for relief is
either meritless or refuted by portions of the record that were
attached to the order, I concur with the affirmance.

    Appellant was charged as a Principal to Home Invasion
Robbery with a Deadly Weapon in violation of sections 777.011 and
812.135, Florida Statutes, and Child Abuse by Intentional Act that
Could Reasonably be Expected to Result in Physical or Mental
Injury in violation of section 827.03, Florida Statutes. Appellant
signed a Sentence Recommendation in which she pleaded no
contest to these charges without an agreement as to the sentence.
The trial court adjudicated her guilty based on her plea and
sentenced her to concurrent terms of 20 years’ imprisonment for
the robbery charge and five years’ imprisonment for the child
abuse charge.

     In her timely postconviction motion, Appellant raised seven
grounds for relief alleging ineffective assistance of counsel. She
also claimed that the cumulative effect of counsel’s errors resulted
in a fundamentally unfair trial.

     Appellant alleged that counsel told her that he was going to
have her sentenced as a youthful offender with a 364-day jail
sentence and 5 years’ probation or community control. This advice,
according to Appellant, fell below the standard of effective
assistance of counsel because she was not eligible for sentencing
as a youthful offender and she did not receive the promised
sentence. Appellant asserted that she would not have pleaded no
contest and would have insisted on going to trial had she been
properly advised.

     The postconviction court denied relief on this ground because
Appellant was not misadvised regarding her eligibility to be
sentenced as a youthful offender and the plea colloquy refuted her
claim that she was coerced into entering the plea with a promise
that she would be given a specific sentence.


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     The trial court properly denied relief on this claim. While
youthful offender sentencing does not apply to any person found to
be guilty of a capital or life felony, see § 958.04(l)(c), Fla. Stat.
(2014), Appellant was not convicted of a capital or life felony. See
Stewart v. State, 201 So. 3d 1258, 1260 (Fla. 1st DCA 2016);
Williams v. State, 405 So. 2d 436, 438 (Fla. 1st DCA 1981)
(explaining that a life felony is limited to that class of felonies for
which one may be punished “by a term of imprisonment for life or
for a term of years not less than 30” (internal quotation marks and
citation omitted)). Rather, Appellant was convicted of child abuse,
a third-degree felony, and home invasion robbery with a deadly
weapon, a first-degree felony punishable by a term of
imprisonment not exceeding life. Further, the sentencing court
considered imposing a youthful offender sentence in this case but
rejected such sentencing in light of Appellant’s co-defendants’
sentences, the nature of the charges, and the surrounding
circumstances of this case. Accordingly, counsel did not misadvise
Appellant that she could receive a youthful offender sentence.
Appellant’s sworn testimony wherein she stated that she was not
promised a specific sentence and she understood that she could be
sentenced for a term of years up to life imprisonment refutes her
claim that she was induced into pleading by a promise of a specific
sentence.

     Appellant’s second claim alleged that her plea was
involuntary because she did not have enough time to discuss the
case with counsel and the plea was based on counsel’s promise to
have her sentenced as a youthful offender, even though counsel
knew there was no evidence that she was principal to the home
invasion robbery. Appellant asserted that counsel should have
advised her to go to trial and not to enter a plea because there was
no evidence that she had any knowledge of what her co-defendants
intended to do before they did it. The trial court denied relief on
this claim because it was refuted by the record.

     The trial court properly denied relief on this claim for the
reasons discussed under the first claim and because this claim is
refuted by the record. Although counsel tried to reduce Appellant’s
apparent culpability by arguing that the evidence did not show
that she had knowledge of her co-defendant’s intentions, such
knowledge may be inferred from the factual basis for the plea. The

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factual basis is provided in the Sentence Recommendation
Appellant signed, which included the fact that Appellant set up a
meeting with the victim; Appellant, along with her co-defendants,
unlawfully entered the victim’s home; and, while inside, co-
defendants struck the victim and stole several items including
money, handguns, shotguns, and an assault rifle. Appellant also
failed to show that she was prejudiced by the limited amount of
time she had to discuss her case with counsel or how additional
time would have made a difference.

     Appellant next argued that counsel was ineffective for failing
to depose her three co-defendants, who would have supported
Appellant’s theory of the case that she was not complicit in the
home invasion robbery. Specifically, Appellant asserted that her
co-defendants would have attested to their initial statements to
the effect that Appellant merely needed a ride to the victim’s
residence. The trial court denied relief on this ground because
Appellant waived her right to have trial counsel investigate or put
forth a defense when she pleaded.

     The trial court properly denied relief on this claim. See Clift v.
State, 43 So. 3d 778, 779 (Fla. 1st DCA 2010) (“By entering a plea
to the charges, Appellant waived his right to have counsel
investigate or put forward a defense....”) To the extent Appellant
challenged counsel’s effectiveness at sentencing, the claim was
properly denied because Appellant testified that she was satisfied
with counsel’s representation and, as alleged, the co-defendants’
statements do not tend to show that Appellant was not complicit
in the scheme to rob the victim. Even had counsel deposed them
and they attested to their initial statements, the deposition
testimony would not have shown Appellant was not a principal or
cast doubt on her guilt or culpability.

    Appellant argued that counsel was ineffective for failing to
advise her that she could withdraw her plea. By the time Appellant
learned that she could have withdrawn her plea, her appeal had
been filed and it was too late. Had she known she could withdraw
her plea, Appellant claimed that she could have filed a motion
detailing counsel’s promises, there would have been an evidentiary
hearing, and she would have been allowed to withdraw her plea
and proceed to trial or she could have raised the issue in her direct

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appeal. The trial court denied relief because counsel did not have
a duty to advise Appellant that she could move to withdraw the
plea. Further, had Appellant moved to withdraw the plea, the
motion would have been denied.

     The trial court properly denied relief on this claim. The only
basis suggested in the postconviction motion that could support a
motion to withdraw the plea was Appellant’s allegation that
counsel promised her a specific sentence as a youthful offender. As
explained earlier, counsel was not ineffective in advising Appellant
that she was eligible for youthful offender sentencing and her
claim is otherwise refuted by the record. Therefore, any motion to
withdraw her plea on these grounds would not have been granted.
Counsel cannot be deemed ineffective for failing to inform
Appellant of her right to file a motion to withdraw plea.

     Appellant argued that counsel was ineffective for failing to
have her psychologically evaluated. She asserted that she had
been diagnosed with ADHD and was Manic Depressive with
Bipolar Disorder and Anxiety and had been prescribed various
medications for these ailments. She had attempted suicide twice
when she was 12-13 years old and was admitted to a crisis
stabilization unit on both occasions. She suffers from Battered
Women’s Syndrome. Appellant had been taking medication until a
week before the instant crime, when her medication ran out.
Appellant attempted to explain these problems to counsel, but he
did not pursue this issue or have her evaluated. Had he done so,
the evaluation would have shown why she reacted as she did, and
that she was a bystander and not a participant in this case. The
trial court denied relief on this ground because Appellant waived
her right to have counsel investigate and put forth a defense, and
Appellant did not establish that counsel was ineffective or that she
was prejudiced.

     The trial court properly denied relief on this claim. Except for
a narrow exception applicable to claims of ineffective assistance of
counsel for failing to raise a defendant’s actual incompetency,
“neither a procedural nor a substantive competency claim of trial
court error may be raised in a postconviction motion.” Thompson
v. State, 88 So. 3d 312, 316 (Fla. 4th DCA 2012). See generally
Dougherty v. State, 149 So. 3d 672, 676 (Fla. 2014) (noting claim

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regarding competency was procedurally barred where it was not
raised on direct appeal). “To satisfy the deficiency prong based on
counsel’s handling of a competency issue, the postconviction
movant must allege specific facts showing that a reasonably
competent attorney would have questioned competence to
proceed.” Thompson, 88 So. 3d at 319. “The question is ‘whether
the defendant has sufficient present ability to consult with counsel
with a reasonable degree of rational understanding and whether
the defendant has a rational, as well as factual, understanding of
the pending proceedings.’” Id. (quoting Fla. R. Crim. P.
3.211(a)(1)). “‘[N]either low intelligence, mental deficiency, nor
bizarre, volatile, and irrational behavior can be equated with
mental incompetence to stand trial.’” Id. (quoting Medina v.
Singletary, 59 F. 3d 1095, 1107 (11th Cir. 1995)). Here, Appellant’s
allegations fail to show that there was any reason to question her
competency to proceed to trial or to enter a plea. See id. at 320
(finding similar allegations that the appellant had a history of
mental disorders and suicide attempts, had been admitted to a
mental hospital for evaluation, and was borderline retarded was
insufficient to raise a legitimate doubt as to competency or to
require an evidentiary hearing before denying post-conviction
relief). Cf. Turem v. State, 220 So. 3d 504 (Fla. 5th DCA 2017)
(reversing for record attachments or an evidentiary hearing on
claim that counsel failed to investigate appellant’s competency
where appellant alleged, inter alia, that he did not understand the
consequences of his plea, he was suffering from delusions and
hearing voices at the time of his plea, and he had a lengthy and
documented history of mental illness).

     Appellant argued that counsel was ineffective for persuading
her to enter an open plea and improperly coerced her plea by
promising that she would be sentenced as a youthful offender and
receive a 364-day jail sentence followed by 5-years of supervision.
Appellant claims that she was easily manipulated and exhibited
poor judgment due to her diminished capacity as a 20-year old.
Further, the trial court should have inquired into her mindset
when it sentenced her. The trial court denied relief on this ground
because Appellant was not misadvised regarding her eligibility to
be sentenced as a youthful offender and the plea colloquy refuted
her claim that she was coerced into entering the plea with a
promise that she would be given a specific sentence.

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     The trial court properly denied relief on this ground for the
reasons discussed earlier. The trial court considered and rejected
sentencing Appellant as a youthful offender pursuant to the
Florida Youthful Offender Act, Chapter 958, Florida Statutes. The
trial court’s exercise of its discretion to reject Appellant’s request
for a youthful offender sentence is not reversible error. See
McKinney v. State, 27 So. 3d 160, 161 (Fla. 1st DCA 2010) (noting
trial court is not obligated to impose a youthful offender sentence
unless it believes such a sentence appropriate). Appellant’s
reliance on Miller v. Alabama, 567 U.S. 460 (2012), and similar
cases to assert that she is entitled to further consideration of her
age in the sentencing process is misplaced. In Miller, the United
States Supreme Court held that it was unconstitutional to
sentence defendants who were under the age of 18 when they
committed murder to mandatory life sentences without the
possibility of parole. Miller, 567 U.S. at 465. Appellant cites no
authority for extending Miller to require defense counsel to
interact with youthful-offender clients any differently than other
defendants or to require a trial court to inquire as to a defendant’s
state of mind during sentencing. Even if additional precautions
were required when dealing with defendants who were under the
age of 18, such precautions would not apply to Appellant, who was
20 years old at the time of these offenses.

     Appellant argued that counsel was ineffective for failing to
challenge the information because no deadly weapon was used in
the home invasion robbery even though her co-defendants stole
and transported the victim’s weapons. She asserted that this theft
and transport was insufficient to charge a deadly weapon was
carried during the home invasion robbery and counsel should have
moved to dismiss the information. Appellant claimed she was
prejudiced by counsel’s failure to do so because she entered a plea
where the evidence did not support the enhancement and the issue
was not preserved for appellate review. Had counsel filed a motion
to dismiss, the motion would have been granted and the charge
would have been reduced so that Appellant would have been
eligible to be sentenced as a youthful offender. The trial court
denied relief on this ground because Appellant entered a plea
waiving her right to have counsel investigate or put forth a
defense, and Appellant admitted to a factual basis for the charges


                                  7
by acknowledging that her co-defendants became armed during
the robbery when they stole the victim’s guns.

      The trial court properly denied relief on this claim. See Clift v.
State, 43 So. 3d 778, 779 (Fla. 1st DCA 2010) (“By entering a plea
to the charges, Appellant waived his right to have counsel
investigate or put forward a defense....”). Additionally, the claim is
refuted by the record, which includes the stipulated fact that
Appellant’s co-defendants stole the victim’s guns. See §
812.135(2)(a), Fla. Stat. (2014) (“If in the course of committing the
home-invasion robbery the person carries a firearm or other deadly
weapon, the person commits a felony of the first degree...”); see,
e.g., Ridgeway v. State, 128 So. 3d 935 (Fla. 1st DCA 2013)
(affirming conviction for robbery with a deadly weapon because
fleeing with knife was sufficient to establish that defendant was
armed during robbery of the knife); State v. Brown, 496 So. 2d 194
(Fla. 3d DCA 1986) (reversing trial court order that reduced charge
of armed robbery to grand theft of a firearm because defendant
carried the stolen firearm while in flight, which was sufficient for
purposes of carrying a firearm in the course of committing the
robbery). Because Appellant’s co-defendants stole several firearms
from the victim, counsel was not ineffective for failing to move to
dismiss the charge of principle to home-invasion robbery with a
deadly weapon.

     Finally, Appellant argued that the cumulative effect of
counsel’s errors resulted in a fundamentally unfair trial and
deprived her of her right to due process. The trial court denied
relief because Appellant’s other claims of ineffective assistance of
counsel were without merit.

     The trial court properly denied relief on this claim. A claim of
cumulative error must fail where the individual claims of error are
either procedurally barred or meritless. Israel v. State, 985 So. 2d
510, 520 (Fla. 2008); Griffin v. State, 866 So. 2d 1, 22 (Fla. 2003).
As the Appellant’s individual claims are meritless for the reasons
discussed in this opinion, this claim is also meritless.
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Holly Elizabeth Caudle, pro se, Appellant.

Ashley Moody, Attorney General, Tallahassee, for Appellee.




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