                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

KENNETH LYNN MASON,                  NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D13-6187

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed December 5, 2014.

An appeal from the Circuit Court for Clay County.
John H. Skinner, Judge.

Kenneth Lynn Mason, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Charles R. McCoy, Senior Assistant
Attorney General, Tallahassee, for Appellee.




MARSTILLER, J.

      Pursuant to a negotiated plea agreement, Kenneth Lynn Mason

(“Appellant”) in 2009 pled guilty to lewd and lascivious molestation and received

a prison sentence of 17 years followed by 15 years’ sex offender probation. Three
years later, Appellant filed a postconviction motion under Florida Rule of Criminal

Procedure 3.850 claiming ineffective assistance of defense counsel and seeking to

vacate his plea as involuntarily entered. A subsequently-filed amended motion

raised three claims: (1) counsel failed to investigate whether law enforcement

officers read Appellant his Miranda 1 rights before he confessed, orally and in

writing, to the molestation during an interview he voluntarily participated in; (2)

counsel failed to file a motion to suppress Appellant’s inculpatory statements; and

(3) the sentence the trial court imposed was not the agreed-upon sentence set forth

in the negotiated plea agreement. The post-conviction court summarily denied all

three claims.

        To prevail on an ineffective-assistance-of-counsel motion, a defendant must

show that (1) counsel’s performance was so deficient that he or she did not provide

the representation guaranteed by the Sixth Amendment, and that (2) counsel’s

deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.

668, 687 (1984). To satisfy the deficient-performance prong of the Strickland test,

a defendant “must identify the acts or omissions of counsel that are alleged not to

have been the result of reasonable professional judgment.”          Id. at 690.   The

prejudice prong of the Strickland test requires a defendant to show “there is a

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


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                         2
proceeding would have been different.” Id. at 694. In the context of a guilty plea,

the prejudice prong requires the defendant to show “there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985);

see also Grosvenor v. State, 874 So. 2d 1176, 1179 (Fla. 2004). “[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).

      We reverse the denial of Appellant’s first and second claims related to

defense counsel’s asserted failure to investigate grounds to suppress Appellant’s

confession, and remand the claims for an evidentiary hearing. The postconviction

court largely relied on a pre-sentencing filing in the record entitled, “Defendant’s

List of Mitigating Factors,” in which Appellant, through counsel, stated that he

“fully cooperated” with law enforcement, and “voluntarily” attended and

participated in the “interview” with officers during which he admitted committing

the unlawful acts for which he later was arrested and charged. Based on these

factual assertions, the postconviction court determined Appellant was not under

custodial interrogation, and therefore, Miranda warnings were not required. We

conclude, however, Appellant’s statements provided insufficient information upon

                                          3
which to base so conclusive a determination. See Ramirez v. State, 739 So. 2d 568,

574 (Fla. 1999) (setting forth factors for determining whether a reasonable person

would have believed he was in custody), cert. denied, 528 U.S. 1131 (2000).

Neither do the statements conclusively refute Appellant’s postconviction claims or

permit a conclusion, without more information, that defense counsel acted

reasonably under the circumstances.      See Strickland, 466 U.S. at 691 (“The

reasonableness of counsel’s actions may be determined or substantially influenced

by the defendant’s own statements or actions. Counsel’s actions are usually based,

quite properly, on informed strategic choices made by the defendant and on

information supplied by the defendant.”).

      We affirm the denial of Appellant’s third claim for it is fully refuted by the

record. The written plea agreement states that in return for his guilty plea to lewd

and lascivious molestation, Appellant would be sentenced to between 10 and 30

years’ imprisonment followed by 15 years of sex offender probation, and that the

actual prison sentence would be determined by the court at the time of sentencing.

Furthermore, the transcript of Appellant’s plea colloquy demonstrates that

Appellant fully understood the maximum sentence he was facing.

      AFFIRMED, in part; REVERSED, in part; and REMANDED.


BENTON and WETHERELL, JJ., CONCUR.


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