         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D18-1477
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CHRISTINE M. MCCRAY,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Alachua County.
William E. Davis, Judge.

                         March 7, 2019


BILBREY, J.

     Christine McCray appeals the order denying her motion
under rule 3.850, Florida Rules of Criminal Procedure, to vacate
the judgment and sentence entered following her no contest plea.
Appellant asserts that the circuit court erroneously denied her
motion which claimed ineffective assistance of defense counsel in
connection with her open plea and the sentence ultimately
imposed. Upon review of the evidence adduced at the hearing on
the postconviction motion, the order on appeal is affirmed.

     When a postconviction movant seeks relief due to alleged
ineffective assistance of counsel, she must establish “counsel’s
performance was deficient,” and “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,
687 (1984). We review the postconviction court’s ruling after an
evidentiary hearing under a mixed standard, as stated in
Wickham v. State, 124 So. 3d 841, 858 (Fla. 2013), “[b]ecause both
prongs of the Strickland test present mixed questions of law and
fact, this Court employs a mixed standard of review, deferring to
the circuit court’s factual findings as long as they are supported
by competent, substantial evidence and reviewing the legal
conclusions de novo.”

     Appellant asserted that defense counsel was ineffective
during plea negotiations with the State because counsel allegedly
led her to believe that if she rejected the State’s plea offers, she
would receive a sentence which did not include any incarceration.
Both of the State’s plea offers included 364 days of jail time to be
followed by probation. Appellant rejected the State’s offers and
instead entered an open plea. Appellant’s open plea resulted in a
sentence of six years’ incarceration followed by a total of fourteen
years of probation.

     The testimony at the hearing on Appellant’s postconviction
motion by both Appellant and her former defense counsel
established that Appellant was informed and was well aware of
the twenty-year maximum sentence she faced. In addition, the
testimony of both Appellant and defense counsel was that counsel
had communicated the two plea offers from the State to
Appellant. Accordingly, this was not a case where defense
counsel failed to inform Appellant of her sentence exposure or
failed to communicate a plea offer.

     A claim of ineffective assistance of counsel is cognizable upon
an allegation that counsel affirmatively advised the defendant to
reject a plea offer based on misinformation, which causes the
defendant to decline an offer he or she would have accepted if
properly advised. See Lafler v. Cooper, 566 U.S. 156, 163 (2012)
(“[C]ounsel was deficient when he advised [defendant] to reject
the plea offer on grounds he could not be convicted at trial.”).
However, to establish that defense counsel’s performance was
deficient, as required by Strickland, “[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

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the conduct from counsel’s perspective at the time.” Id. at 689.
In addition, “[t]he reasonableness of counsel’s actions may be
determined or substantially influenced by the defendant’s own
statements or actions.” Id. at 691.

     The evidence presented at the hearing was that Appellant
consistently informed counsel she did not want to serve any jail
time. Appellant testified that her rejection of the State’s offers
was based on her counsel’s representation that a new judge
would soon be assigned to her case and that this judge “would not
send me to prison because he believes in giving people second
chances.” However, defense counsel testified that Appellant
rejected both offers from the State based on the jail time
required. Defense counsel denied advising Appellant to reject the
offers. Counsel testified that he informed Appellant that if she
did not want to accept the plea offers, she could enter an open
plea but that the sentence could be “anything within the legal
range, including the maximum.”

     The postconviction court evaluated the credibility of the
witnesses and weighed the evidence to conclude that Appellant
rejected the State’s plea offers, despite knowing that she faced
the possibility of a twenty-year sentence, “because she wanted
the opportunity to seek a sentence without any incarceration.”
Our review of the transcript of the evidentiary hearing confirms
that the circuit court’s denial of postconviction relief is supported
by competent, substantial evidence that counsel’s performance
was not deficient.       Rather than demonstrating ineffective
assistance of defense counsel, “[t]he record paints a picture of a
defendant who rolled the dice and lost.” Santos v. State, 125 So.
3d 962, 964 (Fla. 4th DCA 2013). Any harm to the Appellant was
based not upon any misadvice by defense counsel, but upon her
own wish to avoid incarceration. We affirm the denial of
postconviction relief on the other claims raised in Appellant’s
motion without comment.

    AFFIRMED.

B.L. THOMAS, C.J., and JAY, J., concur.




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                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Christine M. McCray, pro se, Appellant.

Ashley B. Moody, Attorney General, and Tabitha Herrera,
Assistant Attorney General, Tallahassee, for Appellee.




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