          Supreme Court of Florida
                                  ____________

                                  No. SC17-1146
                                  ____________

                        LEONARD P. GONZALEZ, JR.,
                               Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                September 13, 2018

PER CURIAM.

      This case is before the Court on appeal from an order partially denying a

motion to vacate a judgment of conviction of first-degree murder and a sentence of

death under Florida Rule of Criminal Procedure 3.851. Because the order concerns

postconviction relief from a capital conviction for which a sentence of death was

imposed, we have jurisdiction of the appeal under article V, section 3(b)(1),

Florida Constitution.

                                      FACTS

      Leonard Patrick Gonzalez, Jr., was convicted for the July 9, 2009, murders

of Byrd and Melanie Billings. The underlying facts of these murders were
provided in our opinion on direct appeal. See Gonzalez v. State, 136 So. 3d 1125,

1135-39 (Fla. 2014). After the jury returned a guilty verdict, the case proceeded to

its penalty phase and the jury recommended sentences of death for both murders by

a vote of ten to two. Id. at 1139. We affirmed Gonzalez’s convictions and

sentences on direct appeal. Id. Thereafter, Gonzalez filed his initial motion for

postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851, which

he later amended to include a claim for relief pursuant to Hurst v. Florida, 136 S.

Ct. 616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016). The postconviction

court summarily denied relief on two of Gonzalez’s claims but granted a new

penalty phase based on his Hurst claim. This is his appeal.

                                   DISCUSSION

      Gonzalez raises two claims in his appeal: (1) ineffective assistance of

counsel for failing to renew his motion for change of venue and (2) ineffective

assistance of counsel for failing to challenge the indictment. In a motion governed

by rule 3.851, where a defendant makes a facially sufficient claim that requires a

factual determination, the circuit court must hold an evidentiary hearing. See

Mann v. State, 112 So. 3d 1158, 1161 (Fla. 2013). Nevertheless, “claims may be

summarily denied when they are legally insufficient, should have been brought on

direct appeal, or are positively refuted by the record.” Id. (quoting Marek v. State,




                                        -2-
8 So. 3d 1123, 1127 (Fla. 2009)). A circuit court’s decision whether to grant an

evidentiary hearing is reviewed de novo. Id. at 1162.

      A successful claim for ineffective assistance of counsel must prove that: (1)

counsel’s performance was deficient and (2) the deficiency prejudiced the

defendant. See Strickland v. Washington, 466 U.S. 688 (1984); Rutherford v.

State, 727 So. 2d 216 (Fla. 1998). To establish deficiency, a defendant must show

a specific act or omission by counsel that falls “outside the broad range of

reasonably competent performance under prevailing professional standards.”

Maxwell v Wainwright, 490 So. 2d 927, 932 (Fla. 1986). The act or omission must

constitute an error “so serious that counsel was not functioning as the ‘counsel’

guaranteed . . . by the Sixth Amendment.” Strickland, 466 U.S. at 687.

Additionally, the defendant must overcome the strong presumption that trial

counsel’s performance was not ineffective and “[j]udicial scrutiny of counsel’s

performance must be highly deferential.” Id. at 689.

      To establish prejudice, the defendant must demonstrate that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. “Reasonable probability” is

defined as “a probability sufficient to undermine confidence in the outcome.” Id.

“Mere speculation is not sufficient to form the basis for postconviction relief.”




                                         -3-
Ellerbee v. State, 232 So. 3d 909, 918 (Fla. 2017) (citing Derrick v. State, 983 So.

2d 443, 462 (Fla. 2008)).

      In his first issue on appeal, Gonzalez argues that the postconviction court

erred by summarily denying his claim that trial counsel was ineffective for failing

to properly argue the motion for change of venue. Because the record positively

refutes Gonzalez’s claim, the lower court properly summarily denied this claim.

      Florida law provides that a defendant is permitted to move for a change of

venue when a fair and impartial trial cannot be had for any reason other than the

prejudice of the trial judge. See Ellerbee, 232 So. 3d at 919 (quoting Fla. R. Crim.

P. 3.240). To determine whether a change of venue is proper, the trial court must

consider: “(1) the extent and nature of any pretrial publicity and (2) the difficulty

encountered in actually selecting a jury.” Griffin v. State, 866 So. 2d 1, 12 (Fla.

2003). When considering the second prong, the court must consider “whether any

difficulty encountered in selecting a jury . . . reflected a pervasive community bias

against [the defendant] which so infected the jury selection process that it was

impossible to seat an impartial jury.” Rolling v. State, 695 So. 2d 278, 287 (Fla.

1997). “[I]f prospective jurors can assure the court during voir dire that they are

impartial despite their extrinsic knowledge, they are qualified to serve on the jury,

and a change of venue is not necessary.” Id. at 285 (citing Davis v. State, 461 So.

2d 67, 69 (Fla. 1984)).


                                         -4-
      In cases where a defendant alleges ineffective assistance of trial counsel for

failing to move for a change a venue, we have stated:

      [T]he defendant “must, at a minimum, ‘bring forth evidence
      demonstrating that the trial court would have, or at least should have,
      granted a motion for change of venue if [defense] counsel had
      presented such a motion to the court.’ ” Dillbeck v. State, 964 So. 2d
      95, 104 (Fla. 2007) (quoting Wike v. State, 813 So. 2d 12, 18 (Fla.
      2002)); see also Taylor v. State, 120 So. 3d 540, 551 (Fla. 2013), cert.
      denied, ––– U.S. ––––, 134 S. Ct. 1009 (2014).

Carter v. State, 175 So. 3d 761, 776 (Fla. 2015). Logic dictates, then, that where

trial counsel did move for a change of venue and was denied, a defendant cannot

demonstrate that the trial court would have granted the motion. Furthermore,

Gonzalez has not presented evidence that demonstrates that the trial court should

have granted the motion.

      Gonzalez’s motion and his initial brief focus on what he terms “the

inflammatory media coverage” within Escambia County surrounding the crime.

He alleges that counsel’s motion for change of venue was inadequate because it did

not inform the court of the inflammatory and prejudicial nature of the coverage.

Gonzalez complains that by having the trial court take judicial notice of the

coverage rather than bring in the articles and reports, trial counsel “effectively

abandoned any realistic hope of obtaining a change of venue.” Finally, Gonzalez

alleges that the cursory voir dire was insufficient to determine whether the jurors

lacked prejudice and could be fair and impartial.



                                         -5-
      Other than the general allegation that voir dire was “cursory,” Gonzalez does

not point to a specific biased juror who served, nor does Gonzalez specifically

allege which juror, if any, was not properly rehabilitated during voir dire or, failing

that, that Gonzalez was unable to strike either for cause or by using one of his

peremptory strikes. The record before this Court demonstrates that trial counsel

provided prospective jurors with a questionnaire inquiring, among other things,

about their exposure to pretrial publicity.1 Members of the venire who responded

that they were familiar with the publicity were asked if they could set it aside and

consider only the evidence presented during the trial. Two prospective jurors who

indicated they could not set aside what they had heard or read were excused for

cause. Once the jury selections were completed, Gonzalez was asked personally if

he was satisfied with the jury as selected and he replied affirmatively.

Accordingly, the record reflects that Gonzalez was able to select a fair and

impartial jury and the trial court would not likely have granted a renewed motion

for change of venue at that time.

      Because the record positively refuted Gonzalez’s claim, the postconviction

court properly summarily denied his claim. Gonzalez’s argument amounts to a



      1. Specifically, the venire was asked: (1) “Have you seen, heard, or read
anything about the killing of Byrd Billings or Melanie Billings at [their address] on
or about July 9, 2009?”; (2) “What have you heard or read?”; (3) “Did you form an
opinion about the case? Please explain.”


                                         -6-
second-guessing of counsel’s argument on the motion for change of venue, but the

record demonstrates that counsel presented a cogent argument that was carefully

considered by the trial court. Further, Gonzalez has not alleged that the jury that

was impaneled was biased. Therefore, he cannot demonstrate that counsel’s failure

to secure the change of venue constituted ineffective assistance of trial counsel.

      In his second issue on appeal, Gonzalez alleges ineffective assistance of trial

counsel for failing to challenge his indictment based on the alleged interference of

the grand jury by Sheriff Morgan. The postconviction court summarily denied this

claim, finding it insufficiently pleaded because the claim was based purely on

speculation. While this Court may conclude that any speculation regarding Sheriff

Morgan’s practice of greeting prospective jurors could have been clarified in an

evidentiary hearing, Gonzalez failed to allege a legally sufficient claim that such a

practice would entitle him to relief.

      The grand jury issued its indictment on Tuesday, August 11, 2009.

Gonzalez asserts that defense counsel had a good faith basis to believe that Sheriff

Morgan greeted the members of the grand jury because Sheriff Morgan’s practice

on Mondays and Tuesdays was to greet prospective jurors at the parking lot where

they are directed to park and greet them by giving them his business card and

thanking them for appearing.




                                         -7-
      The State asserts that in addition to Gonzalez’s claim being speculative,

defense counsel would have had no legal basis to object to an already empaneled

grand jury because Florida law provides that such a challenge may be made only

on the ground that the grand jurors were not selected according to law. See Seay v.

State, 286 So. 2d 532, 535 (Fla. 1973).

      Gonzalez’s reliance on this Court’s decision in Rudd v. State ex rel.

Christian, 310 So. 2d 295 (Fla. 1975), which held that an indictment should be set

aside when a state attorney or his or her assistants should in any way attempt to

influence the findings of a grand jury other than presenting evidence and rendering

legal advice, is misplaced. Christian, which considers the propriety of a state

attorney’s or assistant state attorney’s attempts to influence a grand jury, does not

apply to Sheriff Morgan, who is neither a state attorney nor an assistant state

attorney.

      Further, as we provided in Seay, Florida Statutes are explicit that “[a]

challenge or objection to the grand jury may not be made after it has been

empaneled and sworn.” Seay, 286 So. 2d at 535 (quoting section 905.05, Florida

Statutes (1973)). Gonzalez has not alleged a legal basis for trial counsel to have

challenged the indictment or the grand jury and, therefore, the postconviction court

properly summarily denied his claim as legally insufficient.




                                          -8-
      For the foregoing reasons, we affirm the postconviction court’s summary

denial of Gonzalez’s claims.

      It is so ordered.

PARIENTE, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.
CANADY, C.J., and LEWIS, J., concur in result.

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

An Appeal from the Circuit Court in and for Escambia County,
     Nickolas P. Geeker, Judge - Case No. 172009CF003249XXXCXX

Eric C. Pinkard of Creed and Pinkard, Tampa, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, and Lisa A. Hopkins, Assistant Attorney
General, Tallahassee, Florida,

      for Appellee




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