       Third District Court of Appeal
                               State of Florida

                          Opinion filed August 23, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D16-774
                         Lower Tribunal No. 09-13577
                             ________________


                             Michael Sandoval,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Milton Hirsch,
Judge.

      Law Offices of Matthew Troccoli, P.A., and Matthew J. Troccoli, for
appellant.

      Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant
Attorney General, for appellee.


Before SALTER, EMAS, and LOGUE, JJ.

     LOGUE, J.
      Michael Sandoval, convicted of crimes involving the possession of child

pornography, appeals the denial of his postconviction motion alleging he was

deprived of the effective assistance of counsel. In the motion, he argued that his

trial counsel was ineffective because she did not adequately investigate the

potential testimony of his stepdaughter and her mother that a third person had

access to Mr. Sandoval’s computer and could have downloaded the pornography in

question. The postconviction court conducted an evidentiary hearing involving the

testimony of Mr. Sandoval, the stepdaughter, her mother, the investigating officer,

and trial counsel, among others.

      The third person at issue was a friend of the family known only as “Lewis.”

No witness knew his last name, telephone number, address, other identifying

information, or whereabouts. The stepdaughter and her mother could not

adequately explain why they had not mentioned Lewis to the investigating officers

who had interviewed them at length regarding all persons who had access to the

computer. Sandoval’s trial counsel testified that she had discussed calling the

stepdaughter and her mother as witnesses, but Sandoval agreed not to call them.

See Stein v. State, 995 So. 2d 329, 337 (Fla. 2008) (“[I]t is axiomatic that if a

defendant consents to defense counsel’s trial strategy after it had been explained to

him, it will be difficult to establish a claim for ineffective assistance of

counsel[.]”).



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      At the end of the testimony, after considering the demeanor of the witnesses

and inconsistency in their various statements, the postconviction court made the

following finding of fact: “I conclude that the testimony offered by the defense

witnesses at the post-conviction hearing was utterly undeserving of belief. I do not

believe for one moment that there is, or ever was, a ‘Lewis,’ last name unknown,

phone number unknown, whereabouts unknown. . . . I have not the slightest

hesitation in concluding that the testimony [by the defense witnesses at the 3.850

evidentiary hearing] was entirely incredible.”

      Because the postconviction court’s factual conclusions are supported by

competent substantial evidence based upon his credibility determinations, we

uphold the postconviction court’s determination that Sandoval failed to meet his

burden to establish ineffective assistance of counsel. See, e.g., Sweet v. State, 810

So. 2d 854, 862 (Fla. 2002) (upholding postconviction court’s refusal to grant

3.850 motion based on ineffective assistance of counsel for failure to call a witness

when the postconviction court expressly made the finding that “the jury would find

[the witness’s] testimony to be as incredible as this Court found it to be”).

      Affirmed.




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