       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          AARON MOHANLAL,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D14-1835

                              [April 8, 2015]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; David A. Haimes,
Judge; L.T. Case No. 04-20405CF10A.

   Aaron Mohanlal, Jasper, pro se.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

     Aaron Mohanlal appeals an order summarily denying his rule 3.850
motion for postconviction relief. We reverse the summary denial of the
second and eighth grounds and part of the ninth ground, and otherwise
affirm.

    Mohanlal, a teacher, was charged with thirteen counts arising from a
sexual relationship he allegedly had with one of his students. Following a
lengthy jury trial, Mohanlal was found guilty as charged. The sole evidence
supporting most of the offenses consisted of the victim’s uncorroborated
testimony. The authorities became involved only after the victim found a
flyer accusing him of molesting pets. Several of his friends and other
students testified to procuring the photo for Mohanlal, watching Mohanlal
create the flyer, and helping him distribute copies of it. The state argued
Mohanlal prepared the flyers in order to get back at the victim for refusing
to continue their sexual relationship.

    Mohanlal did not testify.    The defense lost the then-available
“sandwich” in closing argument by presenting one witness, the officer who
took the victim’s initial statement.1 This officer was called for the purpose
of telling the jury that the victim initially did not mention Mohanlal’s
involvement.

     The second and eighth grounds of the postconviction motion are
related. In his second ground, Mohanlal claimed he was entitled to a new
trial due to the ineffective assistance of his two trial attorneys in failing to
investigate and present exculpatory evidence and alibi witnesses at his
trial. He described the evidence and named the witnesses, alleged they
were available to testify at trial, and described what each witness would
have said. Each witness or piece of evidence would have contradicted
portions of the victim’s uncorroborated testimony. The eighth ground
claimed his defense attorneys were ineffective both in abandoning their
original “sandwich” trial strategy and in calling only the one officer, rather
than also calling the named alibi witnesses and presenting the other
evidence that could have supported Mohanlal’s claim of actual innocence.
On this record, we find these claims were sufficient and were not refuted
by portions of the record that were attached to the order of denial.

    In his ninth ground, Mohanlal claimed ineffective assistance of counsel
in making concessions during closing argument by admitting his
involvement in making the flyers and acknowledging that he and the victim
might have had a phone sex relationship. Mohanlal maintains that he
consistently told his attorneys he neither created the flyers nor had an
inappropriate sexual relationship with the victim. Mohanlal did not give
the attorneys permission to admit he was guilty of any charges. He argued

1Asexplained in Chamberlain v. State, 880 So. 2d 796, 797 n.1 (Fla. 5th DCA
2004):

      [A] “sandwich” opening and closing argument refers to Florida Rule
      of Criminal Procedure 3.250, which states: “a defendant offering
      no testimony in his or her own behalf, except the defendant’s own,
      shall be entitled to the concluding argument before the jury.” See
      Van Poyck v. State, 694 So. 2d 686, 697 (Fla. 1997) (defense
      counsel clearly had tactical reasons for limiting his presentation of
      evidence, it was “important to save the sandwich,” i.e., “for the
      defense to argue first and last if there’s no evidence offered aside
      from the testimony of the defendant”).

Id. Effective May 3, 2007, rule 3.250 no longer refers to closing arguments, and
rule 3.381 now provides that the state always has the opening and rebuttal
closing argument. See In re Amendments to the Fla. Rules of Criminal Procedure-
Final Arguments, 957 So. 2d 1164 (Fla. 2007).


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that by admitting the possibility of phone sex, the jury might have been
led to believe other types of misconduct occurred, as the prosecutor
emphasized the concession in rebuttal closing argument.

     A postconviction motion may be denied without a hearing when
counsel concedes a defendant’s guilt to lesser offenses, even without the
defendant’s consent, if the record shows this was a reasonable tactical
decision of counsel in the face of overwhelming inculpatory evidence. See,
e.g., Florida v. Nixon, 543 U.S. 175, 190-92 (2004); Harris v. State, 768 So.
2d 1179, 1182-83 (Fla. 4th DCA 2000). The record contains overwhelming
evidence, from a number of witnesses, of Mohanlal’s involvement in the
creation and distribution of the flyers.

    The state’s argument and the record attachments provided an
explanation for why the defense would have admitted Mohanlal’s
involvement with the flyers. For example, in closing argument, defense
counsel distinguished how Mohanlal dodged questions about the flyers in
his police statement, but clearly denied all the sexual allegations,
emphasizing that his limited involvement with the flyers did not mean he
engaged in sexual acts with the victim. In fact, the defense argued, had
he engaged in the alleged sex acts, that would have furnished a strong
reason for him not to be involved in the flyers, which could bring the sexual
activity to light.

    But on this record, the claim of ineffective assistance for
acknowledging Mohanlal and the victim might have had a phone sex
relationship was not refuted. The summary record does not show any
reasonable tactical reason for admitting to the phone sex, and the state
never mentions it in its response to ground nine of the motion for
postconviction relief. Accordingly, we reverse the summary denial of that
portion of ground nine, along with grounds two and eight, and remand to
the trial court for further proceedings on these grounds.

    Affirmed in part, Reversed in part, and Remanded.

WARNER, MAY and FORST, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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