          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                 FOURTH DISTRICT

                             HEATHER PHILLIPS,
                                 Appellant,

                                        v.

                             STATE OF FLORIDA,
                                  Appellee.

                                 No. 4D16-2344

                                 [July 26, 2017]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Steven J. Levin, Judge; L.T. Case No. 562015CF002589A.

  Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T.
Acuña, Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

    Appellant Heather Phillips appeals the trial court’s final judgment and
sentence. Pursuant to a plea agreement, Appellant pled no contest to one
count of lewd or lascivious battery. The court sentenced Appellant to ten
years in prison, followed by five years of sex offender probation. On appeal,
Appellant argues her counsel was ineffective in failing to object to the
supposedly greater-than-agreed-upon sentence and for failing to file a
motion to withdraw plea. As set forth below, we affirm the trial court’s
judgment and sentence without prejudice to Appellant raising her claims
of ineffective assistance of counsel in a 3.850 post-conviction motion. 1

                                  Background

   On October 13, 2015, the State of Florida charged Appellant by
information with four counts of lewd or lascivious battery on a fifteen-year-
old boy. The State offered Appellant a plea agreement, in which the State
would drop three out of the four charges if Appellant pled no contest to

1   We offer no opinion on the merits of such a motion should one be made.
one. Appellant accepted. In a portion of the written plea bargain,
Appellant agreed to the following statement: “I understand that the
recommendation for sentencing to the judge by both my attorney and the
State Attorney is as follows: 10 year DOC Cap agreement, $100 cost of
prosecution, $217 deposition transcript fees.” At the subsequent plea
hearing, the trial court directly asked Appellant, “do you still wish to enter
the plea knowing the cap is ten years in prison?” Appellant answered,
“Yes.” Shortly after, the court clarified the plea bargain:

      Do you understand that the court gives you—because there’s
      a ten year cap that could include probation, right, because the
      court could say six years and four years probation or
      something because the cap is ten years. Do you understand
      that that probation could be sexual offender probation
      because of the type of charge it is which has special conditions
      to it?

Appellant answered, “Yes.”

   At the subsequent sentencing hearing, the trial court sentenced
Appellant to ten years in prison as well as five years of sex offender
probation to follow the prison sentence. On appeal, Appellant argues she
never agreed to the possibility that she could serve five years of probation
after serving a full ten years in prison; instead, she argues that she agreed
only to ten total years of punishment divided in some manner between
prison and probation. Consequently, she argues her defense counsel was
ineffective in failing to object to the sentence at the sentencing hearing, as
well as in failing to file a motion to withdraw the plea pursuant to Florida
Rule of Criminal Procedure 3.170(l).

                                  Analysis

   We begin with the general proposition that a claim of ineffective
assistance of counsel is generally not cognizable on direct appeal because
the issue is fact-specific. Michel v. State, 989 So. 2d 679, 681 (Fla. 4th
DCA 2008). The usual procedural vehicle for such a claim is a motion for
post-conviction relief under Florida Rule of Criminal Procedure 3.850.
Dennis v. State, 696 So. 2d 1280, 1282 (Fla. 4th DCA 1997). However, as
this Court and others have noted, “such a claim can be raised where the
face of the record demonstrates ineffective assistance of counsel.” Michel,
989 So. 2d at 681.

   We find that defense counsel’s failure to contest the trial court’s
sentence in this case does not amount to ineffective assistance of counsel

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apparent on the face of the record. Successfully demonstrating ineffective
assistance of counsel has two steps:

      First, the defendant must show that counsel’s performance
      was deficient. This requires showing that counsel made errors
      so serious that counsel was not functioning as the “counsel”
      guaranteed the defendant by the Sixth Amendment. Second,
      the defendant must show that the deficient performance
      prejudiced the defense. This requires showing that counsel’s
      errors were so serious as to deprive the defendant of a fair
      trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). In other words, a
defendant must show that his or her attorney’s actions (1) were below an
objective standard of reasonableness, and that, (2) those unreasonable
actions created a reasonable probability that the result of the proceeding
would have been different. Mosley v. State, 209 So. 3d 1248, 1264 (Fla.
2016).

   Here, it does appear that the trial court sentenced Appellant to a
greater-than-agreed-upon/understood sentence. Though there may have
been some ambiguity in the written plea bargain concerning whether ten
years was the maximum possible overall sentence, or whether ten years
was the maximum possible prison sentence, the trial court subsequently
indicated that the “ten year cap” included both prison time and probation
when it told Appellant: “Do you understand that the court gives you—
because there’s a ten year cap that could include probation, right, because
the court could say six years and four years probation or something
because the cap is ten years.”

    It is possible that defense counsel may have chosen not to object to the
sentence or file a motion to withdraw the plea because counsel had a good
faith belief that the sentence, even if more than agreed to, was still more
favorable to Appellant than a sentence that might result from risking the
plea not being accepted at all. In other words, counsel may have chosen
not to object for strategic purposes. Our jurisprudence is one that robustly
protects strategic and tactical decisions by defense counsel. See Hannon
v. State, 941 So. 2d 1109, 1118 (Fla. 2006) (“The defendant carries the
burden to ‘overcome the presumption that, under the circumstances, the
challenged action “might be considered sound trial strategy.”’” (quoting
Strickland, 466 U.S. at 689)). “There is a strong presumption that trial
counsel’s performance was not ineffective,” id., and in reviewing attorney
performance, we should not fall prey to “the distorting effects of hindsight,
[instead] evaluat[ing] the conduct from counsel’s perspective at the time.”

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Id. (quoting Strickland, 466 U.S. at 689). Given the State’s strong evidence
of guilt, defense counsel may have had a reasonable basis to conclude
that, were the plea and sentence to be withdrawn, the State could
successfully charge Appellant with all four lewd or lascivious battery
counts. If so, then Appellant would find herself facing up to sixty years in
prison, see §§ 775.083(3)(d), 800.04(4), Fla. Stat. (2015), rather than the
ten-year prison and five-year sex offender probation sentence she actually
received.

   Our reasoning in this case is analogous to that in McClough v. State,
where the Second District Court of Appeal held that defense counsel was
not ineffective in failing to object to the sentence imposed even though the
sentence imposed exceeded the negotiated cap. 74 So. 3d 158, 160 (Fla.
2d DCA 2011). As we do here, the court in McClough concluded: “we can
conceive of a tactical explanation for counsel’s silence. Counsel had a
reasonable basis to be concerned that given another opportunity, the court
would have allowed [the defendant] to withdraw his plea and sentenced
him to a significantly longer term.” Id. (citations omitted).

                               Conclusion

   Because defense counsel may have had a strategic decision for not
objecting to the sentence or moving for a withdrawal of plea, we affirm the
final judgment and sentence. There was not ineffective assistance by
defense counsel on the face of record. Our affirmance is without prejudice
to Appellant filing a timely motion under Florida Rule of Criminal
Procedure 3.850. See McClough, 74 So. 3d at 160; Hettick v. State, 977
So. 2d 797, 798 (Fla. 2d DCA 2008).

   Affirmed.

GERBER, C.J., AND WARNER, J., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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