           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
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                         No. 1D17-4627
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STEPHEN MALLET,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Leon County.
Martin A. Fitzpatrick, Judge.

                          May 21, 2019


ROWE, J.

     Stephen Mallet entered an open plea to one hundred
seventeen counts of possession of images depicting sexual conduct
by a child and two counts of possession with intent to promote such
images. Mallet timely moved for postconviction relief, arguing
that he would not have entered a plea had he known that his
counsel failed to reserve the right to appeal an order denying a
motion to dismiss two of the counts. The State agreed that Mallet
was entitled to an evidentiary hearing on his allegations.
Following the hearing, the postconviction court concluded that
there was no objectively reasonable probability that had Mallet
known defense counsel would fail to reserve the right to appeal the
order, Mallet would have elected to go to trial rather than enter a
plea. We affirm.
     An investigation by law enforcement revealed that an IP
address linked to Mallet had been used to access an online peer-to-
peer file-sharing program. Through the file-sharing program, at
least two hundred seventeen images depicting sexual conduct by a
child were downloaded to Mallet’s computer. Investigators also
discovered during two separate searches of Mallet’s computer that
similar images were uploaded from Mallet’s computer to the file-
sharing program where other users could download them.

     Mallet was charged under section 827.071(5), Florida Statutes
(2010), with one hundred seventeen counts of possession of images
depicting sexual conduct by a child. He was also charged under
827.071(4), Florida Statutes (2010), with two counts of possession
of images with the intent to distribute or promote. Mallet moved
to the dismiss the charges brought under section 827.071(4),
arguing that he could not be convicted for violating the statute
because the images he allegedly possessed with the intent to
distribute or promote were intangible, digital photographs. The
trial court rejected Mallet’s arguments and denied the motion to
dismiss.

     Mallet entered an open plea to all charges. He did not reserve
the right to appeal any issue, including the denial of the motion to
dismiss. At the later-scheduled sentencing hearing, defense
counsel, recognizing that the issue had not been preserved, tried
to reserve the right to appeal the ruling. The trial court advised
counsel that it was too late. The court sentenced Mallet to forty
years’ imprisonment, followed by multiple terms of sex offender
probation. Mallet’s convictions and sentences were affirmed on
direct appeal. Mallet v. State, 173 So. 3d 890 (Fla. 1st DCA 2015).

     Mallet then moved for postconviction relief, alleging that
defense counsel was ineffective for failing to timely reserve the
right to appeal the order denying his motion to dismiss. The
postconviction court held an evidentiary hearing during which
Mallet and his defense counsel testified. Mallet testified that he
had consistently maintained his innocence with respect to the
counts charging possession with intent to distribute or promote
and agreed to sign the plea form only with the understanding that
he could appeal the denial of his motion to dismiss. Had he known
that defense counsel would fail to reserve the right to appeal the

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ruling, Mallet asserted that he would have elected to proceed to
trial.

     Defense counsel testified that he did not reserve the right to
appeal the order denying the motion to dismiss. He admitted that
this failure was based on his misunderstanding of the preservation
process. As to Mallet’s allegation of prejudice, counsel testified
that he explained to Mallet that there were no valid defenses to
the charges against him and advised that pleading was in Mallet’s
best interest. After they discussed the evidence against Mallet,
their agreed strategy was to present mitigating evidence to secure
a more lenient sentence. Counsel observed that Mallet expressed
some interest in going to trial but testified that Mallet was not so
interested that he would have rejected a plea offer.

     The trial court found that Mallet proved deficient performance
by counsel but failed to establish prejudice. The trial court denied
the postconviction motion, and this appeal follows.

                              Analysis

     Mallet claims that he entered his plea only with the
understanding that he would be able to appeal the order denying
his motion to dismiss and that his counsel’s failure to reserve the
right to appeal that order amounted to ineffective assistance.
Where a claim of ineffective assistance of counsel involves a plea,
the defendant must meet the two-prong test outlined in Hill v.
Lockhart, 474 U.S. 52 (1985). The first prong mirrors the deficient
performance prong in Strickland v. Washington, 466 U.S. 668
(1984), in that the defendant must show that counsel’s
performance fell below the prevailing standards of
professionalism. See Hill, 474 U.S. at 58-59. As to the second
prong, the Hill court modified the Strickland prejudice
requirement and held that the defendant must demonstrate “a
reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.” Id.
at 59; see also Grosvenor v. State, 874 So. 2d 1176, 1180 (Fla. 2004).
“Importantly, ‘the prejudice component of a Hill claim involves a
legal standard and is not a purely factual determination.’” Koroly
v. State, 257 So. 3d 1096, 1102 (Fla. 1st DCA 2018) (quoting
Capalbo v. State, 73 So. 3d 838, 841 (Fla. 4th DCA 2011)). Courts

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should not disturb a plea based only on “post hoc assertions from a
defendant about how he would have pleaded but for his attorney’s
deficiencies.” Id. at 1102 (quoting Jae Lee v. United States, 137
S.Ct. 1958, 1967 (2017)). Instead, there must be a reasonable
probability of prejudice; the standard is not less stringent merely
because the conviction arose after a plea as opposed to after trial.
See Capalbo, 73 So. 3d at 842.

     Because we find that Mallet failed to show prejudice, we need
not address the deficient performance prong of the analysis. ∗ See
Long v. State, 118 So. 3d 798, 805 (Fla. 2013) (declining to assess
the prejudice prong of Hill after finding that petitioner’s
allegations were insufficient to satisfy the deficiency prong of Hill).
In determining whether a defendant was prejudiced, a court must
objectively consider the totality of the circumstances at the time of
the plea:

        [I]n determining whether a reasonable probability
        exists that the defendant would have insisted on going
        to trial, a court should consider the totality of the

    ∗
      An appeal of the order denying the motion to dismiss would
have been meritless. Mallet argued that there is no such crime as
possession with intent to distribute or promote intangible (as
opposed to tangible) images depicting sexual conduct by a child.
His argument relied on a distinction he drew between section
827.071(4) (the intent-to-promote statute) and section 827.071(5)
(the possession statute). Mallet argued that while subsection (5)
prohibits possession of an “image,” “data,” or “computer depiction,”
those terms are absent from subsection (4), indicating legislative
intent not to punish those who intend to promote digital images.
This argument fails because subsection (5) did not include those
terms until 2011. See Ch. 2011-220, § 15, Laws of Fla. (effective
Oct. 1, 2011). At the time of Mallet’s offenses in 2010, the language
in subsections (4) and (5) mirrored each other. See § 827.071(4),
(5), Fla. Stat. (2010). Under any plain reading of section
827.071(4), the term “any photograph” includes digital
photographs.



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      circumstances surrounding the plea, including such
      factors as whether a particular defense was likely to
      succeed at trial, the colloquy between the defendant
      and the trial court at the time of the plea, and the
      difference between the sentence imposed under the
      plea and the maximum possible sentence the
      defendant faced at a trial.

Grosvenor, 874 So. 2d at 1181-82 (quoting Hill, 474 U.S. at 59-60).
We have explained that the inquiry “demands a case-by-case
examination of the totality of the evidence and focuses on the
defendant’s decision-making.” Koroly, 257 So. 3d at 1102
(quotations omitted); see also Grosvenor, 874 So. 2d at 1182. The
evidence must support the defendant’s claim that there is a
“reasonable probability” that he would not have pleaded absent
counsel’s alleged deficiencies. Koroly, 257 So. 3d at 1103. “A
‘probability’ is not a mere possibility, and requires something more
than a bald allegation.” Capalbo, 73 So. 3d at 841.

     Here, the totality of the circumstances and consideration of
the Grosvenor factors do not support a finding of prejudice. First,
Mallet had no viable defenses to the charges against him. Over
two hundred images depicting sexual conduct by a child were
found on Mallet’s computer, and investigators downloaded via an
online file-sharing program at least two images depicting sexual
conduct by a child that originated from Mallet’s computer. Mallet
had recently purchased the computer brand new, and there was no
evidence that anyone other than Mallet had access to the
computer.      Simply put, the evidence against Mallet was
formidable, and he and his counsel recognized that his chances of
acquittal were slim. See generally Griffin v. State, 114 So. 3d 890,
899 (Fla. 2013) (“[T]he strength of the government’s case against
the defendant should be considered in evaluating whether the
defendant really would have gone to trial if he had received
adequate advice from his counsel.”).

    Second, the court’s plea colloquy was sufficient to apprise
Mallet of the rights he was giving up by entering a plea. The court
specifically advised Mallet that by pleading, Mallet was waiving
his right to appeal “everything other than the legality of the


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sentence imposed.” Mallet agreed and had no further questions
for the court or for defense counsel.

     Third, at the time he entered the plea, Mallet knew he faced
a maximum sentence of six hundred fifteen years in prison. Even
if his counsel had reserved the right to appeal, and Mallet had
successfully obtained dismissal of the two intent-to-promote
counts, he still faced five hundred eighty-five years in prison.

     Based on the totality of the circumstances surrounding
Mallet’s plea, there is no objectively reasonable probability that if
he had known defense counsel failed to reserve the right to appeal
the order denying his motion to dismiss, Mallet would have elected
to go to trial rather than enter a plea. See Hill, 474 U.S. at 60
(emphasizing that this determination should be made objectively,
without regard for the “idiosyncrasies of the particular
decisionmaker”) (internal quotation omitted). The order denying
postconviction relief is therefore AFFIRMED.

BILBREY and WINSOR, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Danielle Jorden, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Barbara Debelius, Assistant
Attorney General, Tallahassee, for Appellee.




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