          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-4040
                 _____________________________

EARL C. OGDEN,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Mark Borello, Judge.

                         March 13, 2019


PER CURIAM.

     Appellant seeks review of a final order summarily denying his
motion for postconviction relief, which raised two claims of
ineffective assistance of counsel. We affirm the summary denial of
Appellant’s first claim without discussion. However, we reverse
the summary denial of Appellant’s second claim that defense
counsel was ineffective for failing to advise Appellant that he was
facing a mandatory life sentence as a prison releasee reoffender
when the State made a plea offer of fifteen years in prison as a
prison releasee reoffender, which it later withdrew.

     Appellant alleged that if defense counsel had advised him of
the maximum sentence he faced when the State made the plea
offer, he would have accepted the offer instead of leaving the offer
open, which resulted in the offer being withdrawn. If true, defense
counsel’s failure to advise Appellant of the maximum sentence
when discussing the plea offer constituted deficient performance.
As this court has observed:

         Our precedent requires attorneys to inform their
    clients of the maximum sentences they may face when
    advising them as to whether to reject a plea offer.
    Although counsel in the instant case was advising his
    client to leave an offer open, rather than to reject it
    outright, knowledge of the statutory maximum was vital
    to an informed decision as to whether to accept the offer
    or leave it open, thus risking its withdrawal.

Pennington v. State, 34 So. 3d 151, 156 (Fla. 1st DCA 2010)
(emphasis added). * Furthermore, Appellant sufficiently alleged

    * To the extent that the dissent advocates a “bright line” rule
prohibiting any claim of ineffective assistance of counsel unless a
defendant alleges either counsel’s failure to convey a plea offer or
misadvice urging the rejection of a plea, this unduly limits defense
counsel’s duty to “advise defendant of . . . all pertinent matters
bearing on the choice of which plea to enter and the particulars
attendant upon each plea and the likely results thereof, as well as
any possible alternatives that may be open to the defendant.” Fla.
R. Crim. P. 3.171(c)(2)(B); see also Odegaard v. State, 137 So. 3d
505, 508 (Fla. 2d DCA 2014); Rivera v. State, 128 So. 3d 876, 877
(Fla. 2d DCA 2013). The dissent alleges that Appellant’s claim is
legally insufficient because he never alleged that he rejected the
State’s plea offer due to counsel’s lack of proper advice. However,
the fact that Appellant alleged that he asked for more time to
consider the plea offer—rather than rejecting it outright—is a
distinction without a difference. In both cases, the alleged
prejudice is the same, i.e., Appellant failed to accept a more
favorable plea offer due to counsel’s alleged ineffectiveness. It
matters not whether the failure to accept was an outright rejection
of the offer or failure to accept the offer before it was withdrawn.
Pennington, 34 So. 3d at 156. In fact, it could be argued that
Appellant’s request for more time makes for a more compelling
claim because it suggests that Appellant was seriously considering
the offer and might have accepted it before it was withdrawn if he
                                 2
that he was prejudiced because (1) he would have accepted the plea
offer if he had been properly advised; (2) the prosecutor would not
have withdrawn the offer; (3) the court would have accepted the
offer; and (4) the sentence would have been less severe than the
sentence that was in fact imposed. Alcorn v. State, 121 So. 3d 419,
430 (Fla. 2013).

    Contrary to the trial court’s conclusion, Appellant’s claim is
not conclusively refuted by the record of Appellant’s subsequent
plea because “‘[p]rejudice . . . is determined based upon a
consideration of the circumstances as viewed at the time of the offer
and what would have been done with proper and adequate advice.’”
Armstrong v. State, 148 So. 3d 124, 126 (Fla. 2d DCA 2014)
(quoting Alcorn, 121 So. 3d at 432) (emphasis in original); accord
Smith v. State, 219 So. 3d 978, 979 (Fla. 1st DCA 2017); see also
Wilson v. State, 189 So. 3d 912, 913 (Fla. 2d DCA 2016) (holding
that “events occurring after Mr. Wilson rejected the plea offer
could not cure counsel’s alleged failure to provide him with all of
the information necessary to make an informed decision
concerning the offer”).

     Accordingly, we reverse the summary denial of Appellant’s
second claim and remand for an evidentiary hearing. See Smith,
219 So. 3d at 979 (reversing the summary denial of the defendant’s
postconviction claim that defense counsel was ineffective for
failing to advise him that he qualified for a mandatory sentence
under the prison releasee reoffender statute prior to his rejection
of two plea offers); Armstrong, 148 So. 3d at 126 (reversing the
summary denial of the defendant’s postconviction claim that
counsel was ineffective for failing to inform him of the maximum
sentence and the possibility of a fifteen-year mandatory minimum
sentence as a prison releasee reoffender during plea negotiations,
resulting in the rejection of a favorable plea of forty-eight months
in prison); Mathis v. State, 848 So. 2d 1207, 1208-09 (Fla. 1st DCA
2003) (reversing the summary denial of the defendant’s


had been properly advised. Different from the dissent’s assertion,
there is nothing facially unreasonable about this allegation such
that it would be proper to summarily deny it without an
evidentiary hearing.

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postconviction claim that defense counsel was ineffective for
failing to advise him that he could be sentenced as a prison
releasee reoffender if convicted at trial, resulting in the rejection
of the State’s plea offer to a lesser included offense).

     AFFIRMED in part, REVERSED in part, and REMANDED with
directions.

BILBREY and JAY, JJ., concur; WINOKUR, J., concurs in part and
dissents in part with opinion.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


WINOKUR, J., concurring in part and dissenting in part.

    I agree with the majority that the part of the order regarding
the affirmative defense should be affirmed. I disagree, however,
that Ogden is entitled to an evidentiary hearing on his claim
regarding the plea offer.
     In Missouri v. Frye, 566 U.S. 134 (2012) and Lafler v. Cooper,
566 U.S. 156 (2012), the United States Supreme Court ruled that
a defendant who does not accept a plea offer due to deficient
performance of counsel may, in some circumstances, demonstrate
ineffective assistance of counsel. The Florida Supreme Court
adopted the prejudice analysis of Frye and Lafler in Alcorn v. State,
121 So. 3d 419 (Fla. 2013). Due to the relative recency of these
decisions, I believe it is important to define specifically the duties
of counsel with regard to a plea offer made by the State. In my
view, counsel’s failure to advise Ogden of the effect his status as a
prison releasee reoffender (PRR) had on his possible sentence, at
the time that Ogden claims his counsel should have informed him,
is insufficient to establish an ineffective-assistance claim. As such,
I believe the trial court was correct in denying this claim without
an evidentiary hearing.


                                  4
                                  I.
     Ogden was charged with armed burglary of a dwelling, a first-
degree felony punishable by life imprisonment (PBL).
§ 810.02(2)(b), Fla. Stat. He qualified for sentencing as a PRR and
a habitual felony offender. PRR sentencing on the charged crime
would have required a life sentence. § 775.082(9)(a)3.a., Fla. Stat.
At arraignment, Ogden alleged that the assistant state attorney
offered to reduce the charge to burglary of a dwelling (a second-
degree felony), which would carry a fifteen-year sentence as a PRR,
in exchange for a guilty plea. §§ 810.02(3)(b), 775.082(9)(a)3.c., Fla.
Stat. Ogden claimed that counsel did not advise him at that time
that if the State sought PRR sentencing after trial on the charged
crime it would carry a mandatory life term, rather than a
maximum life term. Based on this omission, Ogden alleged that he
“told [t]rial counsel to ask for more time to think about it.”
     About seven weeks later, a new prosecutor took over the case.
After various continuances and several months passing (and one
more change of prosecutor), Ogden’s counsel submitted a written
proposal to accept the offer, almost nine months after the offer was
made. Ogden alleged that the then-current prosecutor (twice
removed from the prosecutor who made the offer) rejected the offer
and counteroffered twenty years as a habitual felony offender with
fifteen years mandatory as a PRR, in exchange for a guilty plea to
burglary of a dwelling. Ogden claims he accepted in light of the
mandatory life provision of the PRR. He claims that he would have
accepted the first offer back at arraignment if counsel had advised
him that he faced mandatory life as a PRR. The trial court rejected
the claim without evidentiary hearing.
                                  II.
     Frye sets forth the standard to be applied “where a plea offer
has lapsed or been rejected because of counsel’s deficient
performance.” 566 U.S. at 147. Thus, the Frye standard, adopted
by the Florida Supreme Court in Alcorn, applies when there has
been a lapse of a plea offer or a rejection of a plea offer. Here,
Ogden did not allege that he rejected the plea offer, much less
rejected it because of counsel’s deficient performance. However, it
is arguable that the offer lapsed, in that the prosecutor refused to
accept the offer some nine months later. But this is not what the

                                  5
Supreme Court meant by “lapse.” In Frye, the defendant alleged
that counsel failed to convey a plea offer to him. Id. at 138-39.
Counsel’s performance was deficient not because the offer lapsed
before the defendant accepted it, but because it lapsed before
counsel even told the defendant about it. Indeed, the only Florida
case that discusses ineffective assistance for a “lapsed” plea offer
is Mitchell v. State, 197 So. 3d 1271 (Fla. 2d DCA 2016), which also
involved an allegation that counsel failed to convey a plea offer. 1
In fact, cases around the country that discuss ineffective
assistance for allowing a plea offer to lapse involve counsel failing
to convey the offer to the defendant. 2



    1  The cases cited by the majority involve plea offers rejected
due to misadvice, so they do not apply. See Smith v. State, 219 So.
3d 978 (Fla. 1st DCA 2017); Wilson v. State, 189 So. 3d 912 (Fla.
2d DCA 2016); Armstrong v. State, 148 So. 3d 124 (Fla. 2d DCA
2014); Pennington v. State, 34 So. 3d 151 (Fla. 1st DCA 2010);
Mathis v. State, 848 So. 2d 1207 (Fla. 1st DCA 2003). These cases
do not suggest that counsel has a nebulous requirement to give
advice quickly enough to beat out a potential (but again unknown)
withdrawal of the offer. Such a requirement does not exist and, as
stated, should not exist. Instead, these cases involve advice that
leads the defendant to actually reject a plea offer. Pennington does
not hold otherwise. Pennington merely states what counsel must
do “when advising [a client] as to whether to reject a plea offer.” 34
So. 3d at 156. Any implication that this case imposes a duty on
counsel to impart information to the client at some unknown time,
regardless of whether counsel advises the client to reject the offer,
is belied by Pennington’s testimony that “trial counsel advised him
to reject the offer.” Id. at 154.
    2 See, e.g., Payton v. State, 2018 WL 3853511, at *2 (Miss. Ct.
App. Aug. 14, 2018); Helmedach v. Comm’r of Corr., 148 A.3d 1105,
1117 (Conn. App. 2016), aff’d, 189 A.3d 1173 (Conn. 2018);
Robinson v. State, 486 S.W.3d 201 (Ark. 2016); Smith v. State, 443
S.W.3d 730 (Mo. App. 2014); Chapa v. State, 407 S.W.3d 428, 434
(Tex. Crim. App. 2013).



                                  6
     Lafler, in contrast, involved a defendant who explicitly
rejected a plea offer due to misadvice of counsel. Lafler, 566 U.S.
at 161 (holding that counsel for defendant, charged with assault
with intent to murder, was ineffective for advising the defendant
to reject the state’s plea offer on the false premise that the
prosecution would be unable to establish intent to murder because
the victim had been shot below the waist). Thus, Frye and Lafler
together stand for the proposition that counsel can be ineffective
for 1) failing to convey a plea offer to the defendant before it lapses
(Frye) or 2) misadvising the defendant to reject a plea offer (Lafler).
Put another way, unless the defendant alleges that counsel failed
to convey a plea offer, the only way to demonstrate ineffective
assistance for failing to accept a plea offer is to allege that the offer
was rejected due to misadvice. 3
                                  III.
     Ogden has failed to demonstrate that Frye, Lafler, or Alcorn
apply here. As such, he has not alleged a legally-sufficient claim
that counsel was ineffective. Counsel neither failed to convey the
plea offer to Ogden before it lapsed, nor counseled him to reject the
plea offer based on misadvice or lack of advice. In most cases, I
believe that we should require such allegations in order to clearly
establish what is expected of counsel with respect to plea offers:
convey all plea offers to the defendant before they lapse, and do not
advise rejection of a plea offer based on misinformation or lack of
required information. Without generally requiring that the bad
advice leads the defendant to reject the offer, we are left with no
guidance as to when and exactly what counsel is required to inform
a defendant regarding a plea offer.


    3  It should be noted that Alcorn, where the Florida Supreme
Court specifically adopted Frye and Lafler, also involves actual
rejection of a plea offer: “This case involves ineffective assistance
of counsel claims arising out of counsel’s failure to correctly inform
the defendant of the maximum penalty he faced before rejecting a
plea offer.” Alcorn, 121 So. 3d at 421-22 (emphasis supplied).
Alcorn stands for the proposition that rejection of a plea offer
caused by lack of proper advice can support an ineffective-
assistance claim.

                                   7
     It is not enough for a movant claiming ineffective assistance
for failure to take a plea offer to allege that he or she would have
accepted the offer but for bad advice or lack of advice. The movant
must also allege that the bad advice or lack of advice constituted
deficient performance. Deficient performance is defined as
“particular acts or omissions of the lawyer that are shown to be
outside the broad range of reasonably competent performance
under prevailing professional standards.” Schoenwetter v. State, 46
So. 3d 535, 546 (Fla. 2010) (quoting Maxwell v. Wainwright, 490
So. 2d 927 (Fla. 1986)). An actual rejection of a plea offer based on
misadvice constitutes a particular act or omission that a counsel
can know is deficient performance. Conversely, an amorphous
requirement for counsel to promptly inform the defendant provides
no clear guidance on what constitutes deficient performance or
what is expected of counsel.
     I find that it is especially important in this type of case to
require specific action on the part of the defendant that was caused
by counsel’s deficient performance. As a counterexample,
defendants who claim that they accepted plea bargains due to
misadvice actually have something to lose if they prevail on the
claim. If a guilty plea is withdrawn, a defendant might end up with
a worse sentence than the plea agreement had provided.
Conversely, defendants like Ogden, making the opposite claim,
have nothing to lose by making their claim. Ogden took a later,
less favorable plea offer. It comes as no surprise that he believes
now that he should have taken the earlier fifteen-year offer, now
that he has a twenty-year sentence. 4 And unlike the defendant
who claims ineffective assistance for accepting a plea offer, he has
nothing to lose by alleging that counsel is to blame for his failure
to take the fifteen-year offer. For this reason, this type of claim
should be limited to what the supreme court held, which is to
permit an ineffective assistance claim when a plea is not conveyed
to the defendant or it has been “rejected because of counsel’s



    4 The same is true for defendants who reject plea deals and
proceed to trial, where they are convicted.



                                 8
deficient performance.” Alcorn, 121 So. 3d at 427 (citing Lafler, 566
U.S. at 147) (emphasis supplied).
                                IV.
     Even if we were to impose a requirement that counsel must
inform the defendant of all relevant factors regarding a plea offer
before it lapses, regardless of rejection, I do not believe such a
requirement should be applied here.
                                 A.
     First, Ogden does not allege when the offer lapsed, other than
indicating that the prosecutor refused to honor it nearly nine
months later. 5 Ogden himself asked for “more time” to consider the
offer, but it is unknown how long the offer remained. Specifically,
Ogden alleged counsel should have notified him at arraignment of
the mandatory provisions of the PRR.
     The majority holds that this allegation is sufficient, that
counsel had an obligation to inform Ogden of the “maximum
sentence” (setting aside whether a PRR sentence is a “maximum
sentence”) “when the State made the plea offer,” and that counsel’s
failure to do so “resulted in the offer being withdrawn.” Maj. op. at
1, 2. Does this mean that counsel was obligated to present
information to Ogden about the effect of PRR sentencing (bearing
in mind that the State had not actually sought PRR sentencing at
the time) right there at arraignment, and that failure to do so
constituted deficient performance? This is, in fact, what Ogden
alleged: “[H]ad Trial Counsel advised Defendant of the [effects of
PRR sentencing] on July 11, 2011, Arraignment date, he would had
affirmatively accepted said plea offer at that point in time”
(emphasis supplied). But I submit that we hold defense counsel to

    5 In addition to failing to allege when the offer lapsed or was
withdrawn, I note that Ogden also did not allege that counsel knew
when the offer would lapse or had lapsed. So even if counsel had
an obligation to inform Ogden of the consequences of a PRR
sentence, regardless of whether he advised Ogden to reject it, the
motion is insufficient because it fails to allege that counsel
ineffectively allowed the offer to expire or ineffectively failed to
inform him that the offer would expire.

                                 9
an unreasonable standard when we find that failure to fully advise
a client regarding possible sentencing on the very day the offer is
made is “outside the broad range of reasonably competent
performance under prevailing professional standards.”
     It is not enough to say that an evidentiary hearing could flesh
these matters out, by gathering evidence of how long the offer
lasted, whether counsel knew when the offer lapsed, whether
counsel informed Ogden of the lapse date, and so on. A
postconviction defendant is entitled to an evidentiary hearing only
when the motion presents “allegations constituting a prima facie
case for relief.” Rivera v. State, 995 So. 2d 191, 200 (Fla. 2008). An
evidentiary hearing is not required to allow a defendant to fill out
his claim for relief by adding facts that do not appear in the motion.
If the movant’s allegations do not support an actual basis for relief,
as opposed to a possible basis for relief, then the court must deny
the motion as legally insufficient. Ogden alleged that his counsel
was required to provide information regarding PRR sentencing on
the day of arraignment, not some unknown future time before the
offer expired. I believe this is an insufficient allegation of deficient
performance.

     Moreover, I do not dispute the majority’s contention that a
plea offer can be impliedly rejected, by permitting it to expire
before it is accepted, without an explicit rejection. First, if this
occurred, it would still involve advice by counsel to the client,
resulting in a decision not to accept the offer. If that decision
involves misinformation or lack of required information, it could
support an ineffectiveness claim. Nothing shows that this occurred
here. Second and more importantly, Ogden did not allege “failure
to accept the offer before it was withdrawn.” Maj. op. at 2 n.*. He
alleged only that counsel should have advised him on the day of
arraignment and alleged nothing about when the offer was
withdrawn.

                                  B.

     Second, a court is justified in finding it unreasonable that a
defendant who was willing to “think about” a mandatory fifteen-
year plea offer when he was facing life imprisonment if he had gone
to trial would have immediately accepted the offer at arraignment
if he had known he would face mandatory life imprisonment

                                  10
instead of the possibility of life imprisonment. This
unreasonableness is a basis to deny Ogden’s motion without
evidentiary hearing. See, e.g., Montero v. State, 996 So. 2d 888, 891
(Fla. 4th DCA 2008) (holding that a court need not hold an
evidentiary hearing on a postconviction motion “where the
allegations are ‘inherently incredible’”); Evans v. State, 843 So. 2d
938, 940 (Fla. 3d DCA 2003) (finding that a postconviction
movant’s claim that he would not have entered his plea was “so
thoroughly contrary to common sense as to be inherently
incredible, and does not warrant a hearing”).
                                 C.
     Finally, I disagree that Florida Rule of Criminal Procedure
3.171(c)(2)(B) establishes an effective-assistance standard for
defense counsel to observe in the plea-offer context. This rule
requires counsel to advise a defendant of “all pertinent matters
bearing on the choice of which plea to enter and the particulars
attendant upon each plea and the likely results thereof.” I do not
believe this subsection establishes a standard to apply to these
cases for three reasons. First, this subsection only requires advice
about plea choices and their effects. In other words, before a
defendant enters a plea, defense counsel is required to discuss
these matters with the client. The subsection says nothing about
advice requirements regarding plea offers. Second, the rule was
amended in 1977 to require counsel to advise the defendant of “all
plea offers.” Fla. R. Crim. P. 3.171(c)(2)(A). See The Florida Bar,
343 So. 2d 1247, 1253 (Fla. 1977). The fact that subsection (A)
specifically mentions “plea offers” suggests that subsection (B) is
not meant to apply to plea offers. Third, even if this subsection did
establish a standard, it is not inconsistent with the position that a
claimant cannot establish ineffective assistance for failure to take
a plea offer unless bad advice has led to a rejection of the offer.
                                 V.
     Because Ogden did not allege that counsel failed to convey the
plea offer, or advised him to reject the offer based on misadvice or
lack of required advice, I do not believe that he made a sufficient
claim of ineffective assistance of counsel. We should affirm that
portion of the trial court’s order.


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                 _____________________________


Earl C. Ogden, pro se, Appellant.

Ashley B. Moody, Attorney General, and Daniel Krumbholz,
Assistant Attorney General, Tallahassee, for Appellee.




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