Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-4914 _____________________________ SHAQUON JOHNSON, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Suwannee County. Mark E. Feagle, Judge. July 13, 2020 M.K. THOMAS, J. Shaquon Johnson appeals his conviction on three counts of battery with bodily fluids upon multiple correctional officers. Mr. Johnson raises two issues. First, he argues that the trial court abused its discretion in denying his motion to dismiss appointed counsel for ineffectiveness by conducting an insufficient Nelson inquiry. See Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973). Next, he argues that he should be resentenced because the record suggests that the trial court may have relied on improper considerations in rendering its sentence. We affirm on both issues. Facts After being charged with battery, Mr. Johnson was granted indigent status and court-appointed counsel. However, he later filed a pro se motion seeking counsel’s dismissal “due to her ineffectiveness.” Mr. Johnson acknowledged in the motion that he had been deemed competent after a recent competency evaluation. Following the evaluation, he “immediately advised counsel to file a motion to rely on mental health defense other than insanity pursuant to 3.216(e) . . . .” See Fla. R. Crim. P. 3.216(e). However, appointed counsel declined to file the requested notice and failed to assist him in preparing the defense. A Nelson hearing was scheduled. At the Nelson hearing, Mr. Johnson described a history of issues with the correctional officers involved and maintained that his explosive disorder diagnosis would be a helpful defense to the charges. He asserted that his appointed counsel refused to file the 3.216(e) notice based on his competency diagnosis, even though, he noted, competency and insanity were different concepts. The trial judge requested a response from defense counsel. She detailed that based on her review of the competency evaluation and the State’s evidence, inclusive of video, she did not believe sufficient grounds existed to pursue a 3.216(e) defense. The trial court denied the motion to dismiss and ordered that appointed counsel remain on the case. Mr. Johnson then announced that he refused to defend the case with appointed counsel, and that he intended to appeal the court’s denial of his motion to dismiss counsel. On the morning of the pretrial hearing, Mr. Johnson advised the trial court that his counsel refused to file an appeal of the order denying his motion to dismiss. He asserted that the refusal further supported his ineffectiveness claim, and that counsel had allegedly done nothing to prepare a defense. Defense counsel responded that she did not believe that the trial court’s denial of the motion to dismiss was an appealable, nonfinal order, and that the denial would be reviewable after the case was resolved. Counsel also further detailed her preparation for trial. The trial court proceeded to discuss the process for the planned jury selection and advised Mr. Johnson to speak with his attorney or a bailiff at any point if he had any concerns. Mr. Johnson responded that he was pro se and that he did not have an attorney. Defense counsel then requested that the trial court conduct a Faretta inquiry if Mr. Johnson desired to represent 2 himself, which it did. See Faretta v. California, 422 U.S. 806 (1975). Ultimately, the trial court found Mr. Johnson competent to represent himself and found that he had knowingly waived his right to representation. Also, the trial court appointed the public defender as standby counsel and directed Mr. Johnson’s initial court-appointed counsel to remain in the audience and confer with Mr. Johnson if he had a question. The jury returned a guilty verdict on all charges. The trial court sentenced Mr. Johnson to the maximum possible sentence of fifteen years, to be served consecutively with an existing sentence. No reasoning for the sentence was provided. Legal Analysis A trial court’s actions during a Nelson hearing are reviewed for abuse of discretion. Brown v. State, 113 So. 3d 134, 138 (Fla. 1st DCA 2013). Mr. Johnson argues that the Nelson inquiry itself was not probing enough, and that the trial court failed to inform him after denying his motion to dismiss counsel that new appointed counsel would not be provided. An indigent person’s right to court-appointed counsel necessarily includes the right to effective representation by counsel. Nelson, 274 So. 2d at 258 (citing Anders v. California, 386 U.S. 738, 744–45 (1967)). If an indigent person asks the trial court to discharge court-appointed counsel before the trial commences, then, to protect the right to effective counsel, the court must inquire about the reason for the request. Id. If incompetency of counsel is given as a reason, the court should sufficiently inquire of the defendant and the attorney to determine whether reasonable cause exists to conclude that counsel is not providing effective legal assistance. Id. at 258–59. The detail and number of questions required of a Nelson inquiry will naturally vary depending on the circumstances presented. Here, the trial court conducted an adequate inquiry to meet the requirements of a Nelson hearing without requiring counsel to disclose her step-by-step decision process. The trial court’s inquiry was limited—the court’s only question was to ask defense counsel for her response to the ineffectiveness claim. That said, counsel’s response specifically addressed each of Mr. 3 Johnson’s contentions by offering her opinion that the 3.216(e) defense in question was the wrong strategic decision based on her evaluation of the information and the evidence, and that she did not have sufficient grounds for the defense based on Mr. Johnson’s competency evaluation. Counsel’s description of her review of the evidence and consideration of various defenses sufficiently rebutted Mr. Johnson’s contention that she failed to assist him in crafting a defense. Clearly, trial counsel and Mr. Johnson had different opinions regarding trial strategy. It is well-settled that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000). As strategy, these were counsel’s decisions to make and are “virtually unchallengeable.” Strickland v. Washington, 466 U.S. 668, 690 (1984). The trial court determined that Mr. Johnson failed to show a reasonable basis for an ineffectiveness claim. We find no abuse of discretion on this ground. Mr. Johnson also contends the trial court erred in failing to specify that replacement counsel would be not be appointed if he chose to dismiss counsel after the denial of his motion. Although he is correct in arguing that this error can result in a reversal, Maderson v. State, 29 So. 3d 1184, 1186 (Fla. 1st DCA 2010), failure of a trial court to conform to this specific Nelson requirement can be harmless error. See Webb v. State, 246 So. 3d 527, 529 (Fla. 5th DCA 2018) (holding that a trial court’s failure to specifically inform a defendant of the fact that replacement counsel would not be appointed to be harmless error where the court informed the defendant that he could proceed with counsel or pro se, and the defendant elected to either proceed pro se or have the case continued so that he could seek private counsel, but never sought new appointed counsel). Although the court may have failed to specifically address the issue of replacement counsel after denying the motion to dismiss counsel, the record also clearly indicates that Mr. Johnson fully understood that the result of his dismissal of appointed counsel would be to proceed pro se or with a private attorney and that new 4 counsel would not be court-appointed. Mr. Johnson proceeded according to this understanding in immediately electing to proceed pro se following the denial of his motion. He even specified that he was not seeking new court-appointed counsel during his pre-trial and during trial. In fact, the trial court ordered the public defender and the court-appointed counsel to remain at the trial in the event Mr. Johnson had questions or a change of heart regarding his pro se status. Therefore, we find any error was harmless. Regarding the issue of the considerations made by the trial court in sentencing, review is de novo. See Norvil v. State, 191 So. 3d 406, 408 (Fla. 2016) (stating that whether a sentencing court violated a defendant’s due process rights by improperly considering a subsequent arrest without conviction is a pure legal question, reviewed de novo). Mr. Johnson correctly notes that other courts have reasoned that “the State has the burden to show from the record as a whole that the trial judge did not rely upon impermissible considerations in passing sentence upon the defendant where portions of the record reflect that the trial judge may have so relied.” Epprecht v. State, 488 So. 2d 129, 130 (Fla. 3d DCA 1986); see also Seays v. State, 789 So. 2d 1209, 1210 (Fla. 4th DCA 2001). Even so, this Court has held that the simple fact that a sentencing court is presented with impermissible information is alone insufficient to merit reversal of a sentence. Serrano v. State, 279 So. 3d 296, 302 (Fla. 1st DCA 2019); see also Harvard v. State, 414 So. 2d 1032, 1034 (Fla. 1982) (noting that “trial judges are routinely made aware of information which may not be properly considered in determining a cause” and that the “judicial system is dependent upon the ability of trial judges to disregard improper information and to adhere to the requirements of the law in deciding a case or in imposing a sentence”). Under Serrano, there must be some affirmative indication that a trial court actually based the sentence on an impermissible factor before an otherwise legal sentence will be reversed. Serrano, 279 So. 3d at 302 (citing Barlow v. State, 238 So. 3d 416, 417 (Fla. 1st DCA 2018)). Mr. Johnson argues that improper arguments were offered to the trial court during sentencing, and that the sentence was the maximum possible under the circumstances. Even if these 5 circumstances suggest that the court might have considered the uncharged crimes mentioned, we agree with the State that there is no affirmative indication in the record that the court based its sentencing on any impermissible considerations. Therefore, Mr. Johnson’s otherwise legal sentence must be affirmed. AFFIRMED. LEWIS and WINOKUR, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee. 6