Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-2161 _____________________________ FRIEND RIZKKHALIL, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Mark Borello, Judge. May 6, 2021 ROWE, J. Friend Rizkkhalil appeals an order summarily denying his postconviction motion filed under Florida Rule of Criminal Procedure 3.850, in which he raised three claims of ineffective assistance of counsel. We affirm. Rizkkhalil’s convictions arose from three cases of grand theft. In each case, Rizkkhalil targeted unmarried women who immigrated to the United States and lived in Jacksonville. Rizkkhalil used aliases and began romantic relationships with the women. He then persuaded them to entrust him with their money to invest in business or real estate ventures, swindling them out of thousands of dollars. After the women gave their money to Rizkkhalil, he stopped communicating with them and the financial ventures never materialized. Rizkkhalil’s first victim was Russian native Valentina Ilchik. He told Ilchik that his name was Murat and that he was an investor that worked at the port of Jacksonville. The two started dating. But after Ilchik invested money with Rizkkhalil, opened six credit cards for him, and bought him a Rolex watch, Rizkkhalil stopped talking to her. She lost over $20,000. Rizkkhalil’s next victim was Serpil Adams. Adams was born in Turkey but grew up in Germany. Rizkkhalil introduced himself to Adams as Murat Karahan, and they started dating. Rizkkhalil suggested that he could help Adams start her own business, so she gave him over $8,400 for the business venture. But the venture never materialized, and Rizkkhalil disappeared. Fatemeh Jahromi was Rizkkhalil’s third victim. Jahromi was born in Iran, and her first language was Farsi. He told her that his name was Fred Ramsey and that he was a CIA agent. After they started dating, Rizkkhalil persuaded her to give him the proceeds from the sale of her house so that he could buy a condo for the two of them to live together. But when Jahromi sent a wire transfer of $50,000 to Rizkkhalil, he stopped communicating with her. The State charged Rizkkhalil with grand theft in three separate cases. On the State’s motion and without objection, the trial court consolidated the cases for trial. The jury found Rizkkhalil guilty on all three counts. The court sentenced him to ten years in prison followed by five years of probation on counts one and two, and five years in prison on count three. And this Court affirmed his judgment and sentence on direct appeal. Rizkkhalil v. State, 291 So. 3d 923 (Fla. 1st DCA 2020) (unpublished table decision). Rizkkhalil then moved for postconviction relief. He alleged that his trial counsel was ineffective for: 1) not objecting to the State’s motion to consolidate the three cases, 2) not objecting to hearsay, and 3) advising him not to testify at trial. The trial court denied the postconviction motion, finding that Rizkkhalil’s claims were refuted by the record. This timely appeal follows. 2 To prevail on his claims of ineffective assistance of counsel, Rizkkhalil had to show that 1) counsel’s performance was outside the wide range of reasonable professional assistance; and 2) counsel’s deficient performance prejudiced the outcome of the proceedings so that without the conduct, there was a reasonable probability that the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687–88, 691–92 (1984); Spencer v. State, 842 So. 2d 52, 61 (Fla. 2003). If he failed to meet either prong as to any claim, Rizkkhalil would not be entitled to relief on that claim. See Preston v. State, 970 So. 2d 789, 803 (Fla. 2007). Rizkkhalil argued first that his trial counsel was ineffective for failing to object to consolidation of the three cases. Under Florida Rule of Criminal Procedure 3.151(a), any party may move to consolidate two or more charging documents into a single case. The trial court must consolidate the cases if the charging documents involve related offenses. Fla. R. Crim. P. 3.151(b). Offenses are related if they are triable in the same court and are based on the same act or transaction. Fla. R. Crim. P. 3.151(a). Here, the State moved for consolidation arguing that Rizkkhalil engaged in a pattern of similar thefts involving similar victims over a short period. Rizkkhalil’s counsel stated that there was no objection to the motion. Even so, counsel would have had no legitimate grounds to object. The record shows that Rizkkhalil used various aliases to target unmarried immigrant women, lured them into a romantic relationship, enticed them into giving him money, and absconded with the funds. On these facts, counsel’s performance was not deficient. See Lindsey v. State, 220 So. 3d 1255, 1257 (Fla. 1st DCA 2017) (explaining that charges may be consolidated for trial when there is a causal link between the crimes, which can be shown by temporal or geographic associations, “the nature of the crimes, and the manner in which they are committed”) (citations omitted). Moreover, Rizkkhalil cannot show prejudice. Before moving to consolidate the three cases, the State moved to introduce evidence of Rizkkhalil’s other crimes under Williams v. State, 110 So. 2d 654 (Fla. 1959). So even if his counsel had objected to the consolidation of the cases, the evidence of Rizkkhalil’s other crimes would have been introduced 3 at each of the three trials. And so, the trial court properly denied this postconviction claim. Rizkkhalil next argues that his counsel was ineffective for failing to object to hearsay. At trial, an investigator testified that he had a source at the Port of Jacksonville, and according to that source, Rizkkhalil did not have security clearance to work there. Rizkkhalil argues that counsel should have objected to this testimony as hearsay because it undermined his defense theory that he was a legitimate importer/exporter. But again, he cannot show any prejudice. One victim testified that Rizkkhalil claimed to be a CIA agent, not an importer/exporter. Two other victims testified that Rizkkhalil never showed any evidence that he was in the import/export business. So despite the hearsay introduced through the investigator’s testimony discrediting his defense theory, ample evidence in the record discredited Rizkkhalil’s claim that he was in the import/export business. Because the hearsay was not prejudicial, the trial court properly denied this claim, too. See Harrington v. Richter, 562 U.S. 86, 104 (2011) (holding that to show prejudice, the appellant must establish a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different). Last, Rizkkhalil argues that his trial counsel was ineffective for advising him not to testify. In assessing this claim, we first consider “whether the defendant voluntarily agreed with counsel not to take the stand.” See Marshall v. State, 277 So. 3d 756, 758 (Fla. 1st DCA 2019). The record shows that Rizkkhalil voluntarily agreed not to take the stand. At trial, the trial court asked defense counsel whether Rizkkhalil intended to testify. Counsel stated that she would confer with Rizkkhalil during the next lunch break. After the break, Rizkkhalil swore under oath during a colloquy with the trial court that he did not want to testify. He affirmed that he had adequate time to consider whether to testify and that he understood his right to testify. He attested that he made the decision freely and voluntarily. Rizkkhalil may not now go behind his sworn testimony and argue that his decision not to testify was involuntary. See Davis v. State, 938 So. 2d 555, 557 (Fla. 1st DCA 2006) (“An appellant is not entitled to go behind sworn representations made to the court in a post-conviction proceeding.”). 4 Having established that Rizkkhalil’s waiver of his right to testify was voluntary, we next consider whether counsel’s advice not to testify was deficient. Marshall, 277 So. 3d at 759. Rizkkhalil does not allege that his counsel misadvised him or misinformed in him some way that led to his decision not to testify. Cf. Askew v. State, 265 So. 3d 693, 694 (Fla. 1st DCA 2019) (reversing summary denial of postconviction claim alleging ineffective assistance of counsel where defendant alleged that counsel advised that if defendant testified at trial, the jury would automatically learn the nature of his past crimes). Thus, the question is whether counsel’s advice not to testify was deficient because no reasonable attorney “would have discouraged [Rizkkhalil] from taking the stand.” Marshall, 277 So. 3d at 759. As to this inquiry, we cannot say that no reasonable attorney would have discouraged Rizkkhalil from taking the stand. All three victims and a similar fact victim testified about a common pattern of deception by Rizkkhalil. But even if Rizkkhalil could show that his counsel’s advice not to testify was deficient, he still had to show prejudice. That is, he had to “set forth what his testimony would have been and how that testimony would have created a reasonable probability of a different outcome.” See id. This is where Rizkkhalil’s claim falls apart. Rizkkhalil does not suggest that he would have disputed the testimony of the three victims or the similar fact victim. Nor does he allege how his testimony would have altered the outcome of the trial. Cf. Roberts v. State, 43 Fla. L. Weekly D1785 (Fla. 2d DCA Aug. 3, 2018) (reversing summary denial of postconviction claim asserting counsel’s interference with his right to testify when the defendant alleged how his testimony would have denied the statements made by other witnesses, would have been credited by the jury, and would have changed the outcome of the trial). Because Rizkkhalil failed to show prejudice, this postconviction claim was properly denied. Because Rizkkhalil has not established that his trial counsel rendered ineffective assistance as to any of his claims, we AFFIRM the trial court’s order denying the postconviction motion. ROBERTS and TANENBAUM, JJ., concur. 5 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Friend Rizkkhalil, pro se, Appellant. Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee. 6