Gary Earven v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-3927 _____________________________ GARY EARVEN, Petitioner, v. STATE OF FLORIDA, Respondent. _____________________________ Petition Alleging Ineffective Assistance of Appellate Counsel— Original Jurisdiction June 4, 2021 OSTERHAUS, J. Gary Earven seeks new appellate counsel and a new appeal on grounds that his former appellate counsel provided ineffective representation in his direct appeal. Earven faults his appellate counsel for two things: (1) not citing to federal authorities in making Earven’s sufficiency of the evidence and due process arguments; and (2) not appealing the use of what Earven considers to be a fundamentally erroneous jury instruction. We deny the petition on the merits. To establish ineffective assistance of counsel, “the defendant must specifically identify acts or omissions of counsel that were manifestly outside the wide range of reasonably competent performance under prevailing professional norms.” Sanchez- Torres v. State, 45 Fla. L. Weekly S96 (Fla. Mar. 12, 2020) (quoting Long v. State, 183 So. 3d 342, 345 (Fla. 2016)). It is the defendant’s burden to overcome “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). We reject, first, Earven’s argument that appellate counsel was ineffective for failing to add federal citations to his sufficiency of the evidence argument. Earven’s appellate counsel made a vigorous argument on the evidence-sufficiency issue. In fact, the briefs and oral argument show that the parties closely contested whether the State’s case adequately demonstrated a well-founded fear of violence in the mind of the victim as necessary to win an aggravated assault conviction. The trial itself produced conflicting evidence on the issue of the victim’s well-founded fear. Although the victim said he wasn’t afraid of the gun shot fired by Earven, the victim also considered Earven’s walk towards him with a gun to be a threat (to which the victim responded by leaving the scene in his vehicle). Counsel thoroughly addressed this issue in the direct appeal and we have no basis for finding ineffective assistance. The gloss of adding federal citations to Earven’s arguments would not have improved them, affected the outcome of his direct appeal, or advanced his case. Thus, we cannot conclude that these omissions were “manifestly outside the wide range of reasonably competent performance under prevailing professional norms.” See Sanchez-Torres, 45 Fla. L. Weekly S96. Nor was Earven’s appellate counsel ineffective for failing to argue fundamental error related to how the aggravated assault jury instruction addressed the victim’s fear. The parties agreed at trial to include an objective standard instruction. Such “would put a reasonable person in fear” instructions have been used and upheld in other aggravated assault cases. See, e.g., Daniels v. State, 308 So. 3d 212, 213 (Fla. 1st DCA 2020) (“This Court and others have held that whether the victim actually testifies that he or she was in fear is not conclusive of the fear element, as long as ‘a reasonable person would experience a well-founded fear of imminent harm.’” (quoting Tash v. Rogers, 246 So. 3d 1304, 1305 (Fla. 1st DCA 2018))). That said, we recognize that the appropriateness of instructing the jury on an objective standard in circumstances like Earven’s – where the victim of an alleged 2 aggravated assault testifies of having not been afraid – doesn’t appear to have been directly litigated before in Florida. Though Earven raises a fair point about whether this instruction was a good fit in his case, we cannot conclude that appellate counsel was ineffective “for failing to raise a novel [fundamental error] argument on direct appeal.” See Sanchez-Torres, 45 Fla. L. Weekly S96 (citing Steinhorst v. Wainwright, 477 So. 2d 537, 540 (Fla. 1985) (“The failure to present a novel legal argument not established as meritorious in the jurisdiction of the court to whom one is arguing is simply not ineffectiveness of legal counsel.”). “[E]ffective appellate counsel need not raise every conceivable nonfrivolous issue.” Zack v. State, 911 So. 2d 1190, 1204 (Fla. 2005) (quoting Valle v. Moore, 837 So. 2d 905, 908 (Fla. 2002)). Finally, the dissent advocates converting Earven’s petition from a 3.850 matter to habeas corpus and granting relief on grounds that this Court committed a manifest injustice by affirming in the direct appeal. Because Earven asserted ineffective assistance of appellate counsel, not habeas corpus, such revamping of the petition is not appropriate here. See Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (en banc) (recognizing the court’s responsibility to exercise restraint by confining its decisions to the issues raised by the parties). It isn’t the Court’s place to improve upon party arguments. See id. Even so, the dissent’s analysis sells short the work done by the parties and this Court in the direct appeal. The dissent incorrectly attributes to the State, for instance, a concession about the victim not being afraid during the crime. In fact, the State’s brief in the direct appeal didn’t mince words in making the opposite argument: “The State argues in the instant case, the victim did testify to the fact he exhibited actual fear of imminent bodily harm by Appellant.” Then after citing record support, the State re-emphasized its argument: “Therefore, there was sufficient evidence presented at trial that the victim did possess actual fear of imminent bodily harm.” Only after asserting actual fear did the State turn to an alternative reasonable-person- based argument that is highlighted by the dissent: Alternatively, if this Court finds that the record in the instant case does not support the contention that actual well-founded fear of imminent bodily harm was presented at trial, then there was sufficient evidence presented that 3  the jury could find under the circumstances, a reasonable person would have had a well-founded fear of imminent bodily harm. Additionally, this Court closely considered the subjective fear evidence at oral argument in the direct appeal and peppered the parties with questions about it. Earven’s counsel responded by recognizing that the evidence was sufficient to prove an assault because Earven angrily approached the victim with a firearm in his pocket, which the victim recognized to be a “threat.” In response to this threat, the victim backed his car out of the driveway and drove off while Earven fired into the air over the car. Earven’s counsel argued that the assault ceased prior to the firearm’s display and shot, so that no aggravated assault occurred. But there was no identifiable break of time or location during this brief episode. With this evidence of an imminent threat involving the firearm, this case could properly to go to the jury on the aggravated assault charge irrespective of doubts involving the State’s alternative objective-standard argument. In turn, given the subjective fear evidence, this Court’s decision to affirm the judgment, sentence, and denial of the Earven’s JOA motion in the direct appeal caused no manifest injustice. And so, we shouldn’t entertain a de facto second appeal here on matters that were already raised, closely evaluated, and reasonably decided on direct appeal. See Breedlove v. Singletary, 595 So. 2d 8, 10 (Fla. 1992). The petition alleging ineffective assistance of appellate counsel is DENIED on the merits. BILBREY, J., specially concurs with opinion; B.L. THOMAS, J., dissents with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ BILBREY, J., specially concurring. 4  I agree with Judge Osterhaus that we are correct to deny the petition for ineffective assistance of appellate counsel, and I concur with much of his well-reasoned opinion. * I fully concur with his analysis that appellate counsel was diligent in Gary Earven’s direct appeal and that our court there carefully considered the issues raised so that no fundamental error occurred in affirming Earven’s conviction. Our precedent, as stated in Daniels v. State, 308 So. 3d 212 (Fla. 1st DCA 2020), and as pointed out by both Judge Osterhaus and the dissenting opinion, allows a conviction for assault with only objectively reasonable fear having been proven. The dissent may have a valid point that proof of only objectively reasonable fear is insufficient to uphold an assault conviction when the purported victim disclaims any fear and there is no contrary evidence. Allowing proof of only objective fear appears to be contrary to the statutory definition of assault which requires both that the fear be objectively reasonable and the act of the defendant “creates a well-founded fear in such other person.” § 784.011(1), Fla. Stat. (2016). If the victim does not testify, circumstantial evidence can prove the subjective fear. Daniels, 308 So. 3d at 213. But if the victim testifies that he or she was not afraid, and there is no evidence to the contrary, there is a good argument that the assault * To the extent that the opinion could be read to hold that an appellate court could never on its own accord convert a postconviction proceeding to a petition for writ of habeas corpus, I respectfully disagree. We retain the ability to address fundamental error even if not raised by an appellant. See Rosier v. State, 276 So. 3d 403, 409 (Fla. 1st DCA 2019) (en banc) (Wolf, J., concurring in result) (“If an error in this case, however, had been discovered by this court during its normal review process that affected the fundamental fairness of the criminal proceeding, we would be required to order supplemental briefing and address the error.”). But, like Judge Osterhaus, I do not believe fundamental error occurred in our court’s affirmance of Earven’s conviction on direct appeal. 5 charge should not go to the jury. I therefore am inclined to agree with then-Chief Judge Casanueva’s concurring in result only opinion in S.P.M. v. State, 66 So. 3d 317, 320 (Fla. 2d DCA 2011), discussed by the dissent. In an appropriate case, I would vote to go en banc to consider adopting Judge Casanueva’s rationale that courts should not apply “a reasonable person standard in a case where the victim testified that he was not afraid and there was no evidence to the contrary.” Id. at 321. But here, just like in Daniels, there was some evidence to counter the victim’s refutation of fear. As the State mentioned in the direct appeal, the victim testified about Earven having his hands in his pockets resulting in the victim backing away from Earven, implying that the victim was in fear. The victim was watching Earven’s “pockets and his hands.” On redirect, the victim testified he knew Earven had a gun in his pocket and would not remove his hand. The victim had earlier testified that the only threat he perceived was when Earven walked up “with his hands in his pockets.” The jury therefore had evidence that the victim was in fear during some of the incident and could find that this evidence was credible while the victim’s disclaimer of any fear was not. See Fla. Std. Jury Instr. (Crim.) 3.9 (“A jury may believe or disbelieve all or any part of the evidence or the testimony of any witness.”). Furthermore, as Judge Osterhaus points out, the issue of the victim’s subjective fear was discussed and considered by this court in Earven’s direct appeal. Even if we were to disagree with the affirmance on Ervin’s direct appeal, that would not be a basis to find a manifest injustice here. “Generally speaking, a showing of manifest injustice requires, at a bare minimum, a definite and firm conviction that a prior ruling on a material matter is unreasonable or obviously wrong and resulted in prejudice.” Vega v. State, 288 So. 3d 1252, 1258 (Fla. 5th DCA 2020) (cleaned up). The dissenting judge forthrightly acknowledges the course he proposes would conflict with Daniels and other decisions from this court. Dissenting op. at 12 n.3. Although Daniels was decided after Earven’s direct appeal, its holding complied with previous cases from this court. See Tash v. Rogers, 246 So. 3d 1304, 1305 (Fla. 1st DCA 2018) (holding that a reasonable person standard should be applied when considering the well-found fear element of assault and courts 6 need not consider whether the victim was subjectively afraid); Fussell v. State, 154 So. 3d 1233, 1236 n.5 (Fla. 1st DCA 2015) (same). The three-judge panel on Earven’s direct appeal was bound by these prior decisions of this court, just as we are. See Scott v. Trotti, 283 So. 3d 340 (Fla. 1st DCA 2018). Even a reasonable disagreement over whether our previous cases were correct does not rise to the high level necessary to constitute a manifest injustice. We are correct to uphold Earven’s conviction. B.L. THOMAS, J., dissenting. This is a case in which the Petitioner never committed the charged crime under the controlling precedent in State v. White, 324 So. 2d 630, 631 (Fla. 1975) and the unambiguous text of the applicable statute, section 784.011, Florida Statutes (2016). Petitioner was convicted and sentenced to twenty years imprisonment based on the jury’s factual finding that Petitioner possessed and discharged a firearm under section 775.087(2)(a)(2), Florida Statutes. This enhanced sentence is a critical factor because the purported victim testified that at the time the firearm was discharged, he had no fear of Petitioner or imminent harm “before or after” the discharge. This Court should therefore treat this petition for writ of habeas corpus as seeking relief from Petitioner’s criminal conviction, grant the writ, and order his discharge from the wrongful conviction. 1 This Court has the authority to grant the 1 I agree with the majority that Appellant’s counsel provided more than adequate representation under the Sixth Amendment to the United States Constitution. In fact, he correctly, vigorously, and persuasively argued that where the purported victim testified under oath that he had no fear of an aggravated assault with a firearm, the trial court reversibly erred in denying Petitioner’s motion for judgment of acquittal (after the trial court initially granted the motion). Appellate counsel even correctly and commendably argued this in his motion for oral argument: “This request is made due to the unique factual circumstances found in the record. Appellant is incarcerated based on a conviction for which the State’s evidence actually disproved a disputed element. 7 writ here. Johnson v. State, 226 So. 3d 908 (Fla. 4th DCA 2017) (quoting Stephens v. State, 974 So. 2d 455, 457 (Fla. 2d DCA 2008)) (“This Court has ‘inherent authority to grant a writ of habeas corpus to avoid incongruous and manifestly unfair results.’”). “An ‘assault’ is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with the apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011, Fla. Stat. (2016) (emphasis added). The crime of aggravated assault requires the state to prove the defendant used a “deadly weapon,” under section 784.021, Florida Statutes. Here the deadly weapon was a firearm, and at the time of Petitioner’s trial, if the State proved the firearm was discharged, the imposition of a twenty-year minimum mandatory was required. § 775.087(2)(a)(3), Fla. Stat. (2016). To convict a person of this crime, both before and after the statutory definition was adopted in 1974, the state must prove that the specific victim, not a “reasonable person,” had a fear of “imminent” danger of violence. Therefore, the state must produce subjective evidence of a victim’s fear: The simple issue before us is whether the crime of aggravated assault includes as one of its elements the victim’s well-founded fear that violence is imminent. The district court below said that such a fear must be proved, citing language to that effect in Criminal Standard Jury Instruction No. 2.05 as adopted by this Court in 1970. In contrast to this view, the district courts in Battle and McCullers held that criminal assault, unlike the tort of assault, does not require an awareness by the victim of imminent peril. The State argues that an inference suffices to satisfy this failure of proof.” Appellant’s Request for Oral Argument at 1, Earven v. State, 250 So. 3d 624 (Fla. 1st DCA 2018) (No. 1D17-3148). This Court affirmed Petitioner’s conviction without opinion. Earven, 250 So. 3d 624. 8  At the time of trial in this case, the elements of an ‘assault’ were not expressed in any statute. The elements had been stated by this Court, however, in Motley v. State, 155 Fla. 545, 20 So. 2d 798 (1945), where assault was defined as a wrongful action creating a fear of imminent bodily harm coupled with an apparent present ability to inflict injury. This definition has been followed by several district courts of this state, and it was repeated with approval by this Court as recently as 1973. The State argues for a definition of assault which does not include victim awareness, on the ground that ‘bushwhackers’ and ‘backstabbers’ would escape punishment if they were unsuccessful in their attempt to inflict injury. The Legislature did not intend to allow such acts to go unpunished, however. The general ‘attempt’ statute will reach those situations. State v. White, 324 So. 2d 630, 631 (Fla. 1975) (emphasis added) (footnotes omitted). This rule of law has existed for more than seventy-five years, but the district courts have broadened the relevant criminal liability such that the state need not prove the victim had actual awareness of such fear. Daniels v. State, 308 So. 3d 212 (Fla. 1st DCA 2020) (holding that this Court’s precedent required affirming aggravated assault conviction where victim testified at trial that she did not have fear of imminent danger but facts and prior statements proved that a “reasonable person would experience a well-founded fear of imminent harm”). This Court in Daniels recognized the widespread acceptance of this principle: This issue mostly arises when a victim either does not testify or does not specifically testify as to whether he or she was put in fear by the defendant’s threat, but the fact finder can infer that the victim was fearful. In this situation, every district court has held that an objective standard applies, irrespective of the lack of the victim’s testimony. Daniels, 308 So. 3d at 213 (citations omitted). 9  I agree that an appellate court should apply the correct standard of appellate review where circumstantial evidence supports a reasonable inference that a specific victim was put in fear. But in a case like this, where the specific victim denies that he or she was put in fear, there is no reasonable inference to support an assault conviction, unless there is compelling evidence indicating that the purported victim is not telling the truth. In the latter case, such a decision contradicts the binding precedent of White and the binding unambiguous texts in sections 784.011 and 784.021, Florida Statutes. Even without this distinction, White unambiguously rejected the “reasonable person” standard when the supreme court declined to import tort-law principles into the criminal law, and for good reason. 324 So. 2d at 631. A tort defendant does not face punishment in state prison. The district courts’ expansion of the applicable statutory law and the supreme court’s holding in White, regarding the element of a victim’s well-founded fear of imminent harm, was explained by then-Chief Judge Casanueva in his opinion in S.P.M. v. State, 66 So. 3d 317, 320 (Fla. 2nd DCA 2011) (Casanueva, C.J., concurring in result only): This evolution of case law has allowed replacement of the statute’s subjective standard of fear with a reasonable person standard when the victim does not testify regarding that element. While these prior opinions have found it appropriate to relax the statute’s clear, subjective standard, none of the cases present a situation where the victim testified regarding the element at issue. This unauthorized expansion of the law has resulted in a manifest injustice in this case. I would order Petitioner’s immediate discharge from this conviction for a crime which never occurred. See Coleman v. State, 128 So. 3d 193, 194 (Fla. 5th DCA 2013) (holding that although the court would normally deny a successive petition, appellate courts have the power to reconsider and correct erroneous rulings made in earlier appeals in exceptional circumstances and where reliance on the previous decision would result in manifest injustice). 10  Here, even the State conceded that the purported victim was not afraid: So let’s talk for a minute about the fear element. You’re instructed that if a reasonable person would have been afraid, then that element is satisfied. Actual fear on the part of the victim need not be shown. That’s what’s called an objective standard. It’s not a subjective standard. So whether that particular individual was afraid or not is kind of irrelevant. It’s whether it would have created a fear in a reasonable person. Okay. So a reasonable person under those circumstances would have been afraid. Defense counsel also noted that the purported victim was not afraid: And what was Johnny Tucker’s testimony? Were you scared by this? No. He thought so little of it, he didn’t even -- did you feel you had to go back and check on your grandkids? No. (emphasis added). The State argued that the victim’s lack of fear was legally “irrelevant.” While it is understandable that the State would rely on court decisions and the standard jury instructions, this principle is contrary to White and the unambiguous text of the legislature’s definition of assault. Respectfully, contrary to the majority opinion, there is no evidence that could provide legally sufficient inferences that the victim fabricated his denial in this case. 2 As noted above, the trial court initially granted Appellant’s motion for judgment of acquittal 2 While the majority is correct that in Daniels, the domestic- violence victim may have had a motive to commit perjury after previously stating she had feared the defendant, and other substantial evidence supported her earlier inculpatory statements, that is not the case here. 11 but incorrectly changed its ruling based on an interpretation of the robbery statute instead of the assault statute. Smithson v. State, 689 So. 2d 1226 (Fla. 5th DCA 1997). Unlike the assault statue, the robbery statute does not contain the unambiguous requirement that a specific victim have a well-founded fear of imminent harm, but rather permits the fact finder to decide that a criminal defendant is guilty by “putting (the victim) in fear.” Id. at 1228. Such can be proven by evidence that the victim surrendered property under the threat of violence, even where the victim might not specifically testify that he was afraid. Id. The reasonable inference from the surrender of the property supports the underlying existence of the victim’s fear. Id. Here, the jury also acquitted Petitioner of all other charges, including the charges of aggravated assault of two children, except for possession of a firearm by a felon. Thus, the trial court correctly initially granted the motion for judgment of acquittal, and the jury acquitted Petitioner of the two other aggravated assault charges alleged to have been committed against the grandchildren. Therefore, there is simply no legally sufficient evidence to support Petitioner’s conviction. This Court should grant relief based on a manifest injustice. See Carswell v. State, 23 So. 3d 195, 196 (Fla. 4th DCA 2009) (citing Lago v. State, 975 So. 2d 613 (Fla. 3d DCA 2008)) (“To prevent manifest injustice, we treat this appeal as a petition for writ of habeas corpus and grant a belated direct appeal on a limited issue.”). 3 As a judge on the direct-appeal panel noted in the oral argument, Petitioner is serving a twenty-year prison term for the crime of aggravated assault despite the victim testifying that 3 I acknowledge that while a court has the power to convert such a petition to a claim based on manifest injustice, this authority should be invoked only in rare and unusual circumstances where the injustice is plain and undeniable. I also acknowledge that my view on the State’s burden of persuasion in proving an assault conflicts with Daniels and other district-court decisions, some of which may be distinguishable but others which I believe are simply wrong. 12 he was not in fear of imminent harm when Petitioner discharged the gun. Without this error, Petitioner would not be in prison. 4 The State correctly asserts that Petitioner did not assert a claim of manifest injustice, but this Court has the authority to treat the petition for writ of habeas corpus asserting ineffective assistance of counsel as one asserting manifest injustice. Johnson v. State, 936 So. 2d 1196 (Fla. 1st DCA 2006) (treating appeal of motion to withdraw plea as allegation of manifest injustice based on assertion of wrongful conviction); Micklos v. State, 137 So. 3d 1034 (Fla. 2d DCA 2014) (stating article V, section 2, subsection (a) of the Florida Constitution and Florida Rule of Appellate Procedure 9.040(c) preclude court from dismissing cause for seeking wrong remedy). Petitioner asserted in his petition that “the jury was able to find him guilty, even after the victim clearly testified that an essential element of what was required was not proven whatsoever.” (emphasis added). He timely filed his petition for writ of habeas corpus. Thus, this Court should order Petitioner’s discharge, and, therefore, I respectfully dissent. _____________________________ Gary Earven, pro se, Petitioner. Ashley Moody, Attorney General, Trisha Meggs Pate, Bureau Chief – Criminal Appeals, Tallahassee, for Respondent. 4 Appellant was properly convicted of the crime of possession of a firearm by a felon and sentenced to three years in prison, which has expired by this time. 13