          Supreme Court of Florida
                                  ____________

                                  No. SC15-628
                                  ____________

                       JOSHUA LEE ALTERSBERGER,
                                Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  ____________

                                  No. SC15-1612
                                  ____________

                       JOSHUA LEE ALTERSBERGER,
                                Petitioner,

                                        vs.

                             JULIE L. JONES, etc.,
                                 Respondent.

                                 [April 27, 2017]

PER CURIAM.

      Joshua Lee Altersberger appeals an order of the circuit court denying his

motion to vacate his conviction of first-degree murder and sentence of death filed

under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ
of habeas corpus. For the reasons that follow, we vacate the death sentence and

remand for a new penalty phase.1

                               I. BACKGROUND

      On direct appeal, this Court described the facts as follows:

              Late in the morning of January 12, 2007, the [d]efendant drove
      to a friend’s home in Highlands County. Also at the home was
      Quentin Kinder, who was in Florida to avoid arrest for violating his
      Georgia probation. After drinking and playing videogames,
      Altersberger left the home with Kinder. Kinder testified that, at this
      point, Altersberger was not so affected by the alcohol that his speech
      was impaired but was “buzzing a little bit.”
              Later that afternoon, around 3:00 p.m., Altersberger drove with
      Kinder to a restaurant in Lake Placid in an effort to meet a girl whom
      he believed to be working there. Upon learning that the girl was not
      at work, Altersberger drove with Kinder to a nearby convenience store
      so that he could buy a cigar. As Altersberger and Kinder were
      walking out of the store, the two noticed a deputy sheriff in a marked
      patrol car stopped at a red light. Kinder then heard Altersberger state,
      as though he was speaking to the deputy, “You better not stop me or
      I’m going to shoot you.”
              Altersberger left the store with Kinder and drove north on
      Highway 27 out of Lake Placid. Altersberger’s driving was
      aggressively erratic, and he swerved several times in and out of heavy
      afternoon traffic. At one point, Altersberger had to swerve in the
      midst of a lane change in order to avoid striking another car. This
      attracted the attention of Florida Highway Patrol Sergeant Nick Sottile
      who had been travelling in the opposite direction and who turned to
      pursue.
              Kinder saw Sergeant Sottile turn around and notified
      Altersberger. Altersberger responded by saying that he was going “to
      push it,” or speed up to flee. Kinder told Altersberger not to try to
      flee and also said that, because of his Georgia probation violation, he
      was going to run from the car once Altersberger pulled over. As he

      1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.


                                        -2-
was pulling over, Altersberger cut sharply from the left lane across the
right lane, cutting off and nearly striking a semi truck. And, as
Altersberger pulled off the roadway, he stated to Kinder that he was
going to shoot Sergeant Sottile. Kinder told Altersberger not to shoot
the officer, and then got out of the car and ran into a nearby orange
grove.
       Intending to complain to Sergeant Sottile about Altersberger’s
driving, the semi truck driver pulled over behind the trooper’s patrol
car. The truck driver then got out of his truck and walked toward
Sergeant Sottile, who ordered him back to his truck. From the
elevated cab of his semi truck, the driver was able to observe the
events that followed.
       Sergeant Sottile approached Altersberger’s driver’s side
window with his hand resting on his gun. Altersberger raised his
hands as Sottile approached and kept them raised while he spoke with
Sottile for a short time. Sottile, appearing to be more comfortable
with the situation, took his hand from his gun. After Sottile took his
hand off his gun, Altersberger lowered his hands and pulled a gun.
Sergeant Sottile raised his hands and started to back away from
Altersberger’s window when Altersberger shot him. Sergeant Sottile
was hit near his left collar bone and fell backward to the ground.
Altersberger then reached out the window of his car to aim his gun at
Sergeant Sottile and tried several times to shoot him in the head, but
his gun would not fire. Altersberger then rapidly drove away.
Sergeant Sottile died shortly thereafter as a result of internal bleeding
from the gunshot wound.
       Altersberger pled guilty to first-degree murder on March 13,
2009. At the penalty phase, the State presented testimony regarding
the murder of Sottile. The defense presented laywitness testimony of
Altersberger’s mother and aunt, one of his mother’s friends, and the
testimony of former teachers and health department employees who
remembered Altersberger as a child. These witnesses testified that
Altersberger had an impoverished and unstable upbringing and a
history of anger problems. They also testified that his mother had
very poor parenting skills, did not make good decisions regarding the
men that she brought around her children, did not treat or discipline
Altersberger appropriately, and did not display affection toward him.
       Altersberger also presented the testimony of two mental health
experts. The first, Dr. Krop, a forensic psychologist, testified that
Altersberger has anger issues that stem from his dysfunctional

                                  -3-
relationship with his mother and the insecurity caused by her poor
parenting and decision-making throughout his childhood. Dr. Krop
also explained that, despite his 103 IQ, Altersberger has problems
with planning and impulse control and was extremely immature for
his age, both socially and developmentally. Dr. Gur, a
neuropsychologist who specializes in neuroimaging, testified that the
orbital frontal and amygdala regions of Altersberger’s brain are
significantly undersized and that such a condition would result in
impaired ability to control and regulate emotions and impulses, an
impairment that would be exacerbated by drug and alcohol use or
abuse. However, Dr. Gur stated that, because he had never met
Altersberger and was not familiar with the facts of the case, he could
not connect his findings to the crime itself.
        The jury recommended the death penalty by a vote of nine to
three. After a Spencer[N.1] hearing, the trial court followed the jury’s
recommendation and sentenced Altersberger to death. In so doing, the
trial court found the following aggravators: (1) the victim was a law
enforcement officer engaged in the lawful performance of his official
duties (great weight); and (2) the murder was committed in a cold,
calculated, and premeditated manner (CCP) without any pretense of
moral or legal justification (great weight). The trial court also found
the following mitigators: (1) Altersberger was 19 years old at the time
of the murder (slight weight); (2) Altersberger’s capacity to appreciate
the criminality of his conduct or to conform his conduct to the
requirements of law was substantially impaired (moderate weight);[N.2]
(3) the offense was committed in an unsophisticated manner (very,
very slight weight); (4) Altersberger was under the influence of
alcohol at the time of the offense (little weight); (5) Altersberger had a
long-term history of substance abuse from age 15 (very slight weight);
(6) Altersberger was brought up in a dysfunctional family and home
environment (moderate weight); (7) Altersberger loves and is valued
by his family (very slight weight); (8) Altersberger loved his
grandfather and was devastated by his death (very slight weight); (9)
Altersberger was the victim of racial discrimination within his own
family (little weight); (10) Altersberger maintained good behavior
throughout the proceedings (very slight weight); and (11) Altersberger
[pled] guilty and took responsibility for the offense (little weight). In
weighing the aggravators and mitigators and determining death to be
the appropriate sentence, the trial court specifically stated “that the
aggravating circumstances in this case far outweigh the mitigating

                                  -4-
      circumstances” and that “either aggravating circumstance alone would
      outweigh all of the mitigating circumstances.”

             [N.1] Spencer v. State, 615 So. 2d 688 (Fla. 1993).

             [N.2] The trial court merged the following nonstatutory
             mitigating circumstances into this one statutory
             mitigator: (1) Altersberger did not fully develop
             emotionally; (2) Altersberger did not fully develop
             cognitively; (3) Altersberger has brain deficiencies that
             reduce his ability to control impulse behavior; (4)
             Altersberger has brain deficiencies that reduce his
             capacity to make reasoned decisions; (5) Altersberger
             suffered significant emotional deprivation while he was
             growing up that adversely affected his psychological
             development; and (6) Altersberger’s dysfunctional family
             life prevented healthy psychological development. The
             court then explained that it gave each mitigator slight
             weight, individually, but moderate weight when merged
             and considered collectively.

Altersberger v. State, 103 So. 3d 122, 124-26 (Fla. 2012).

      This Court affirmed Altersberger’s conviction and death sentence on direct

appeal. Id. at 131. On direct appeal, Altersberger argued that the trial court erred

in finding the CCP aggravator. Id. at 126. And this Court also reviewed whether

Altersberger’s plea was knowingly, intelligently, and voluntarily made and

whether his death sentence was proportionate. Id. at 128-31. For preservation

purposes, Altersberger also argued on direct appeal that “(1) the use of hearsay

evidence during the penalty phase violates the Confrontation Clause; (2) Florida’s

death penalty statute violates Ring v. Arizona, 536 U.S. 584 (2002); (3) Florida’s

death penalty statute and jury instructions unconstitutionally shift the burden of

                                         -5-
proof to the defendant to show why death is not the appropriate sentence; (4) the

CCP aggravator is unconstitutionally vague and overbroad; (5) victim impact

evidence violates defendant’s due process rights; and (6) execution by lethal

injection is unconstitutional.” Id. at 126 n.4. This Court “reject[ed] each of these

arguments as contrary to this Court’s well established precedent.” Id.

      Altersberger filed a motion for postconviction relief on November 13, 2013,

and filed an amended motion on March 7, 2014, which the trial court denied after

holding an evidentiary hearing. Altersberger appeals the trial court’s denial and

also petitions this Court for a writ of habeas corpus.

                       II. POSTCONVICTION MOTION

                    A. Ineffective Assistance of Trial Counsel

      Altersberger argues that trial counsel was ineffective for failing to

adequately advise Altersberger, during the time frame between the entry of his

guilty plea and the trial court’s sentence of death, about the different legal standard

that applies to a motion to withdraw a guilty plea depending on whether the motion

is made prior to or after sentencing.2 However, we affirm the trial court’s denial of

this claim.



       2. Altersberger also argues that trial counsel was ineffective during the
penalty phase and that there was reversible cumulative error. Because we remand
for a new penalty phase, we do not address these claims or the summarily denied
claims related to the penalty phase.


                                         -6-
      Following the United States Supreme Court’s decision in Strickland v.

Washington, 466 U.S. 668 (1984), this Court explained that two requirements must

be met for ineffective assistance of counsel claims to be successful:

      First, the claimant must identify particular acts or omissions of the
      lawyer that are shown to be outside the broad range of reasonably
      competent performance under prevailing professional standards.
      Second, the clear, substantial deficiency shown must further be
      demonstrated to have so affected the fairness and reliability of the
      proceeding that confidence in the outcome is undermined.

Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright,

490 So. 2d 927, 932 (Fla. 1986)).

      Regarding the deficiency prong of Strickland, there is a strong presumption

that trial counsel’s performance was not ineffective. Strickland, 466 U.S. at 689.

Moreover, “[a] fair assessment of attorney performance requires that every effort

be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Id. The defendant carries the burden to

“overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350

U.S. 91, 101 (1955)).

      Regarding the prejudice prong of Strickland, “the defendant must show that

there is a reasonable probability that, ‘absent the [deficient performance], the

factfinder would have [had] a reasonable doubt respecting guilt.’ ” Henry v. State,


                                         -7-
948 So. 2d 609, 617 (Fla. 2006) (quoting Strickland, 466 U.S. at 695). “A

reasonable probability is a ‘probability sufficient to undermine confidence in the

outcome.’ ” Id. (quoting Strickland, 466 U.S. at 694).

      “Because both prongs of Strickland present mixed questions of law and fact,

this Court employs a mixed standard of review, deferring to the trial court’s factual

findings that are supported by competent, substantial evidence, but reviewing the

trial court’s legal conclusions de novo.” Dennis v. State, 109 So. 3d 680, 690 (Fla.

2012).

      Florida Rule of Criminal Procedure 3.170(f) provides the legal standard that

applies to motions to withdraw plea agreements made prior to sentencing:

      The court may in its discretion, and shall on good cause, at any time
      before a sentence, permit a plea of guilty or no contest to be
      withdrawn and, if judgment of conviction has been entered thereon,
      set aside the judgment and allow a plea of not guilty, or, with the
      consent of the prosecuting attorney, allow a plea of guilty or no
      contest of a lesser included offense, or of a lesser degree of the
      offense charged, to be substituted for the plea of guilty or no contest.
      The fact that a defendant may have entered a plea of guilty or no
      contest and later withdrawn the plea may not be used against the
      defendant in a trial of that cause.
Fla. R. Crim. P. 3.170(f). Under this provision, a trial court has broad discretion in

determining motions to withdraw a plea, although it must permit withdrawal upon

“good cause.” State v. Partlow, 840 So. 2d 1040, 1042 (Fla. 2003).

      Rule 3.170(l) provides the standard that applies to motions to withdraw plea

agreements made after sentencing:


                                         -8-
      A defendant who pleads guilty or nolo contendere without expressly
      reserving the right to appeal a legally dispositive issue may file a
      motion to withdraw the plea within thirty days after rendition of the
      sentence, but only upon the grounds specified in Florida Rule of
      Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) except as provided by
      law.

Fla. R. Crim. P. 3.170(l). According to this Court’s case law, pursuant to rule

3.170(l), once a sentence has been imposed, a defendant must demonstrate

manifest injustice or prejudice in order to withdraw a guilty plea. Campbell v.

State, 125 So. 3d 733, 736 (Fla. 2013); Partlow, 840 So. 2d at 1042. “[A] court

does not enjoy broad discretion as to motions filed after sentencing.” Griffin v.

State, 114 So. 3d 890, 898 (Fla. 2013).

      In this case, Altersberger has not demonstrated deficiency. Regarding

Altersberger’s plea and including the time period between the entry of his guilty

plea and the trial court’s sentence of death, trial counsel discussed with

Altersberger “the importance of prevailing at the penalty phase and had explained

to him that entering a plea would be a good strategic decision.” Altersberger, 103

So. 3d at 128. The decision to enter a guilty plea was a difficult decision for

Altersberger to make, and it took him a while to make the decision to enter a plea.

However, as this Court noted on direct appeal, the decision to enter the plea was

ultimately made by Altersberger, it was “knowingly, intelligently, and voluntarily

made,” Altersberger was not forced or coerced into entering his plea, and he was

not promised anything in return for his plea. Id. at 130.


                                          -9-
      This Court also noted that the trial court, after holding a Nelson3 hearing on

March 11, 2009, denied Altersberger’s motion to discharge his attorneys on the

grounds that they were improperly attempting to force him to plead guilty “because

there was nothing presented to indicate that counsel was ineffective or had

performed incompetently.” Id. at 129. After entering the plea on March 13, 2009,

and “a lengthy plea colloquy,” the judge inquired even further, and “Altersberger

told the judge that he had been fully advised by his attorneys that pleading guilty

would be in his best interest.” Id. at 129-30.

      One of Altersberger’s trial counsels, Deb Goins, testified at the evidentiary

hearing that, to her knowledge, they did not talk to Altersberger about the specific

subtleties between filing a motion to withdraw a plea prior to sentencing versus

filing a motion to withdraw a plea after sentencing. And trial counsel Peter Mills

testified at the evidentiary hearing that he “probably covered the issues with him

generally,” but did not get into specifics. Nevertheless, trial counsel’s advice to

Altersberger that it was better to wait until after sentencing to move to withdraw

his plea was reasonable trial strategy. See Occhicone v. State, 768 So. 2d 1037,

1048 (Fla. 2000) (“[S]trategic decisions do not constitute ineffective assistance of




      3. Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).


                                        - 10 -
counsel if alternative courses have been considered and rejected and counsel’s

decision was reasonable under the norms of professional conduct.”).

      Specifically, trial counsel was weighing the decision to wait until after

sentencing to withdraw the plea so that their deal with the State to keep out

damaging testimony from the penalty phase would not be impacted against filing

the motion to withdraw the plea before sentencing where a different standard

would apply. As this Court discussed on direct appeal:

              Altersberger’s attorneys testified that they knew the prosecution
      had as many as twenty witnesses who could provide highly damaging
      testimony as to Altersberger’s acts and admissions following the
      shooting and that this testimony would make obtaining a life sentence
      extremely difficult. They believed, therefore, that the best trial
      strategy was to agree with the prosecution that Altersberger would
      plead guilty in return for the prosecution not calling those witnesses at
      the penalty phase. They also explained that when Altersberger asked
      them what his odds of getting a life sentence would be, they told him
      that they could not guarantee anything, but his chances would greatly
      improve if he were to enter a plea so as to limit the prosecution’s
      introduction of evidence at the penalty phase. As to his desire to
      withdraw his plea prior to sentencing, Altersberger’s attorneys
      testified that they explained Altersberger’s rights regarding plea
      withdrawal and advised him against withdrawing the plea but would
      have filed the motion to withdraw the plea if they had been directed to
      do so.

Altersberger, 103 So. 3d at 129. And in denying Altersberger’s motion to

withdraw his plea that was filed after sentencing, the trial court explained that,

based on the testimony given by Altersberger and his attorneys, “[i]t is clear that

the [d]efendant in agreement with his attorneys made a tactical decision that it was



                                        - 11 -
in his best interest in the hopes of obtaining a life sentence to enter a plea of guilty

and proceed directly to the penalty phase.” Id. at 130.

      Additionally, Altersberger has not demonstrated prejudice from trial

counsel’s decision to advise Altersberger to move to withdraw the plea after

sentencing rather than before sentencing and from failing to specifically explain

the different standards. After holding a hearing, Altersberger’s motion to withdraw

his plea, which was filed after sentencing, was denied. The trial court in this case

actually did review Altersberger’s plea and the circumstances surrounding his plea

before sentencing when Altersberger filed a motion to discharge his attorneys on

the grounds that they were improperly attempting to force him to plead guilty.

And, at the hearing on this motion, Altersberger also complained about his

attorney’s advice regarding the plea. Altersberger cannot show that the trial court

would have granted a presentence motion to withdraw his plea. Moreover, as this

Court’s review of Altersberger’s plea on direct appeal demonstrates, Altersberger

would not have been able to offer proof that his plea was not knowing, intelligent,

and voluntary. See id. at 128-30. Accordingly, Altersberger has failed to

demonstrate how he was prejudiced by trial counsel’s advice or lack of advice

regarding when to file the motion to withdraw his plea.

      Therefore, because Altersberger has failed to establish deficiency and

prejudice, we affirm the trial court’s denial of relief.


                                         - 12 -
                                      B. Hurst

      Next, we consider whether Altersberger is entitled to relief after the United

States Supreme Court issued its decision in Hurst v. Florida, 136 S. Ct. 616 (2016).

Because the jury recommended the death penalty by a vote of nine to three, we

conclude that Altersberger’s death sentence violates Hurst. See Kopsho v. State,

209 So. 3d 568, 570 (Fla. 2017). We must then consider whether the Hurst error

was harmless beyond a reasonable doubt:

      The harmless error test, as set forth in Chapman[v. California, 386
      U.S. 18 (1967),] and progeny, places the burden on the state, as the
      beneficiary of the error, to prove beyond a reasonable doubt that the
      error complained of did not contribute to the verdict or, alternatively
      stated, that there is no reasonable possibility that the error contributed
      to the conviction.

Hurst v. State, 202 So. 3d 40, 68 (Fla. 2016) (quoting State v. DiGuilio, 491 So. 2d

1129, 1138 (Fla. 1986)), petition for cert. filed, No. 16-998 (U.S. Feb. 16, 2017).

      Because the jury in this case recommended death by a vote of nine to three,

“we cannot determine that the jury unanimously found that the aggravators

outweighed the mitigation.” Kopsho, 209 So. 3d at 570. “We can only determine

that the jury did not unanimously recommend a sentence of death.” Id. Therefore,

because we cannot say that there is no possibility that the error did not contribute

to the sentence, the error in Altersberger’s sentencing was not harmless beyond a

reasonable doubt.




                                        - 13 -
      Accordingly, we vacate the death sentence and remand for a new penalty

phase. See Hurst, 202 So. 3d at 69.

                            III. HABEAS PETITION

      Altersberger argues that appellate counsel was ineffective for failing to raise

a claim on direct appeal regarding the voluntariness of Altersberger’s guilty plea.4

In this case, because the conviction for which the death penalty was imposed was

the result of Altersberger’s guilty plea, “this Court’s [mandatory] review shifts to

the knowing, intelligent, and voluntary nature of that plea.” Barnes v. State, 29 So.

3d 1010, 1020 (Fla. 2010) (quoting Tanzi v. State, 964 So. 2d 106, 121 (Fla.

2007)). This Court held on direct appeal that “Altersberger’s plea was knowingly,

intelligently, and voluntarily entered.” Altersberger, 103 So. 3d at 130. Because

this Court actually reviewed this claim on direct appeal, we deny relief. See

Wheeler v. State, 124 So. 3d 865, 889 (Fla. 2013) (denying habeas relief for claim

that appellate counsel were ineffective for failing to make more specific claims

regarding victim impact photographs because this Court already reviewed the

photographs on direct appeal); Messer v. State, 439 So. 2d 875, 879 (Fla. 1983)

(“Habeas corpus is not a vehicle for obtaining a second determination of matters

previously decided on appeal.”).



      4. Because we remand for a new penalty phase, we do not specifically
address the penalty phase claim Altersberger raised in his habeas petition.


                                        - 14 -
                                 IV. CONCLUSION

      For the foregoing reasons, we affirm the denial of Altersberger’s

postconviction guilt phase claims, deny his guilt phase habeas claim, vacate his

death sentence, and remand for a new penalty phase.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
POLSTON, J., concurs in part and dissents in part with an opinion, in which
CANADY and LAWSON, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

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

      I concur with the majority’s decision except its vacating of the death

sentence pursuant to Hurst.

CANADY and LAWSON, JJ., concur.

An Appeal from the Circuit Court in and for Highlands County,
     Angela Jane Cowden, Judge - Case No. 282007CF000041XXAXMX
And an Original Proceeding – Habeas Corpus

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, and Julie A.
Morley and Mark S. Gruber, Assistant Capital Collateral Regional Counsel,
Middle Region, Temple Terrace, Florida,

      for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and C. Suzanne Bechard,
Assistant Attorney General, Tampa, Florida,

      for Appellee/Respondent


                                       - 15 -
