Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT RYAN ALLEN KOHUTKA, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-808 August 3, 2022 Appeal from the Circuit Court for Pasco County; Mary M. Handsel, Judge. Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Taylor A. Shell, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee. NORTHCUTT, Judge. Ryan Kohutka appeals the denial of his motion filed under Florida Rule of Criminal Procedure 3.850, arguing that the postconviction court incorrectly denied his first ground for relief after an evidentiary hearing.1 We reverse in part and remand for further proceedings. In 2012, the State charged Kohutka and his brother with aggravated battery. The State offered each brother a five-year sentence in exchange for a plea. Kohutka's brother accepted the offer and pleaded to a reduced charge of felony battery in exchange for five years in prison. Kohutka rejected the offer.2 On the morning of trial, with a panel of prospective jurors awaiting voir dire, the court and the parties engaged in a last review of any plea negotiations. The State advised that Kohutka was "asking for the offer that was previously made and rejected" but that "[t]he five years is not going to be an offer that is amenable to the State at this point." The State was then offering a ten-year minimum mandatory sentence as a habitual violent felony offender (HVFO). 1 Kohutka does not challenge the summary denial of the other grounds he raised in his motion. 2 On the record at a pretrial hearing, when Kohutka's counsel relayed Kohutka's subsequent request for a three-year sentence, the State confirmed, "I can only offer five. I can only offer five, Judge, is my ceiling of what I can or my max ceiling of what I can offer." Kohutka did not accept. 2 Kohutka's counsel informed the court that neither she nor Kohutka had been previously aware that the State was seeking habitual offender enhancements that would affect his maximum sentencing exposure. DEFENSE COUNSEL: Judge, just for the record, Mr. Kohutka is concerned, obviously. Today is the first day that he's learning he's a HFO and HVFO. .... DEFENSE COUNSEL: And he was aware of the PRR [prison releasee reoffender] designation and I was aware of the PRR designation. But, today, it does is [sic] change things slightly—actually a lot. The trial court looked through the court file and found that Kohutka had been personally served with the notice of enhanced sentencing in 2012. Defense counsel explained why she may not have seen it: she said that she was not the first attorney appointed to Kohutka's defense in the case and that in such situations she did not always receive all the documentation from prior counsel. Kohutka himself then described his understanding both of his sentencing exposure and of the State's prior offer: KOHUTKA: I was going to state the fact that I came in here with the option of running it to trial and there was five years on the offer. And before, when the five years was on there, they never said—like, it never got 3 brought to my attention about HFO, HFVO [sic], nothing. I would have signed five years a long time ago. I've been here for 23 months I've been doing this. The trial court then explained to Kohutka that he was subject to a fifteen-year minimum mandatory sentence as a PRR and that he could be sentenced to thirty years in prison as a HVFO. Alternatively, he could accept the State's new offer of ten years with a ten-year minimum mandatory. Faced with these options, Kohutka chose to go forward with trial. Kohutka's jury found him guilty as charged. At sentencing, his counsel indicated she still did not have a copy of the HVFO notice in her file. The trial court sentenced Kohutka to fifteen years in prison with a fifteen-year minimum mandatory term. This court affirmed his judgment and sentence on direct appeal. Kohutka v. State, 178 So. 3d 409 (Fla. 2d DCA 2015) (table decision). Kohutka timely filed his rule 3.850 motion in 2017, and he amended it in 2018. In ground one, Kohutka asserted that his counsel's performance was deficient because she had misadvised him that he faced a maximum of fifteen years in prison when he actually faced up to thirty years in prison as a HVFO. Kohutka alleged that he was prejudiced because counsel's misadvice caused 4 him to reject the State's five-year offer and that had he known he was subject to a thirty-year HVFO sentence he would have accepted the State's five-year offer. The postconviction court held an evidentiary hearing on that ground. Kohutka's trial counsel could not remember if she ever had discussed his HVFO designation with him before the date of trial. She confirmed "that on the date of trial the [HVFO] notice was not in my file and I only can contribute [sic] that to being probably [the] third or fourth attorney appointed to him." She also noted that the State had previously offered a five-year sentence. She explained that the State may have been suggesting a reduced charge to a third-degree felony to make that possible. Kohutka also testified at the evidentiary hearing. He said that his trial counsel had only mentioned PRR sentencing to him and had never mentioned HVFO before the day of trial. He said that if she had told him earlier that he was subject to increased maximum sentencing as a HVFO he would have accepted the five-year plea deal. Instead, she had told him the maximum he could receive on the charged second-degree felony was fifteen years, minimum mandatory. 5 Kohutka admitted that he had received written notices related to PRR and HVFO sentencing on the same day, but he did not understand what they meant. Because his attorney explained only PRR to him, he said, "I thought that that's all that that was." The postconviction court ultimately denied Kohutka's claim. It found that the pretrial hearing at which Kohutka's counsel rejected the State's five-year offer was not "controlling" and instead ruled that the trial court's explanation of Kohutka's sentencing exposure on the day of trial cured any prejudice caused by prior ineffective assistance of counsel. The postconviction court also ruled that the trial court had already given Kohutka the relief he sought in his postconviction motion on the day of trial by "directing the State to resume plea negotiations." The postconviction court found that these actions prevented Kohutka from establishing prejudice. In order to establish ineffective assistance of counsel, Kohutka had to show that (1) counsel's performance was deficient and that (2) the deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 693–94 (1984). "An attorney's failure to inform a defendant of sentencing enhancements when discussing a 6 plea offer constitutes deficient performance." Statham v. State, 336 So. 3d 369, 370 (Fla. 1st DCA 2022). The postconviction court did not address the first Strickland prong, deficient performance, perhaps because the deficiency of counsel's performance clearly appeared on the record: On the day of Kohutka's trial, his counsel acknowledged to the trial court that she had never informed Kohutka that he was subject to HVFO sentencing. At the evidentiary hearing, Kohutka testified that prior to the day of his trial his counsel had only advised him about PRR sentencing and told him that he faced a maximum of fifteen years in prison. Kohutka's trial counsel also testified at the postconviction hearing, and she did not contradict either Kohutka's testimony or the statements she had made to the trial court on the morning of trial. Her failure to advise her client that he faced up to thirty years in prison, rather than fifteen, while he was weighing the State's offer of five years, was deficient performance. See Statham, 336 So. 3d at 370. The postconviction court failed to engage in a complete analysis of the second Strickland prong, prejudice, because it concluded that events occurring after Kohutka rejected the State's 7 five-year offer overcame any prejudice that might have been caused by his counsel's deficiencies. This was error. "[I]n the context of ineffective assistance resulting in the rejection of a plea offer, '[p]rejudice . . . is determined based upon a consideration of the circumstances as viewed at the time of the offer and what would have been done with proper and adequate advice.' " Wilson v. State, 189 So. 3d 912, 913 (Fla. 2d DCA 2016) (second alteration in original) (quoting Armstrong v. State, 148 So. 3d 124, 126 (Fla. 2d DCA 2014)). In other words, "events occurring after [the defendant] rejected the plea offer could not cure counsel's alleged failure to provide him with all of the information necessary to make an informed decision concerning the offer." Wilson, 189 So. 3d at 913. Contrary to the postconviction court's reasoning, the controlling facts were those in existence at the time Kohutka considered and rejected the State's five-year offer. The postconviction court erred in disregarding those facts and in relying on the trial court's subsequent explanation of Kohutka's maximum sentencing exposure. By that point in time, with the more favorable deal off the table, Kohutka "[could not] go back and accept the offer that he previously rejected and that was no longer available; the 8 damage ha[d] been done." See Phillips v. State, 229 So. 3d 426, 429 (Fla. 2d DCA 2017). For these reasons, we reject the court's conclusion that subsequent events cured any prejudice Kohutka might have suffered when rejecting the State's five-year offer following his counsel's misadvice. On remand, the postconviction court must limit its consideration of the Strickland prejudice prong to the facts as they existed at the time Kohutka rejected the offer. The postconviction court made one other finding that we must address. It posited that even if Kohutka were to prevail in the rule 3.850 proceeding, the only possible remedy would be a directive to the State to renegotiate yet again.3 Therefore, it concluded, Kohutka could not show prejudice. This conclusion did not negate the prejudice described above. Beyond that, the postconviction court was mistaken as a matter of law. The potential remedy available to Kohutka is not confined to 3 The postconviction court also found that the trial court already had once ordered the State to reengage in negotiations before trial. The record on appeal does not support that factual finding. But even if it did, as discussed above, any potential prejudice from counsel's misadvice had already occurred. 9 simply renegotiating with the State. Rather, remedies for Sixth Amendment violations may vary according to the circumstances and "should be 'tailored to the injury suffered from the constitutional violation.' " Alcorn v. State, 121 So. 3d 419, 428 (Fla. 2013) (quoting Lafler v. Cooper, 566 U.S. 156, 170 (2012)). "Thus, a remedy must 'neutralize the taint' of a constitutional violation, while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution." Alcorn, 121 So. 3d at 428 (quoting Lafler, 566 U.S. at 170). As the Lafler court established, there are at least two types of injury that can arise from such violations, and "the remedy should be tailored accordingly." Alcorn, 121 So. 3d at 428. The first category involves typical cases where "the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial." When this occurs, "the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the [State] offered in the plea, the sentence he received at trial, or something in between." In the second category, however, resentencing based on a conviction at trial alone is insufficient because it does not fully redress the constitutional injury. This situation can arise, for example, where "an offer was for a 10 guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge's sentencing discretion after trial." "In these circumstances," the Court [in Lafler] reasoned, "the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal." Presuming the defendant accepts the offer, the trial court "can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed." Alcorn, 121 So. 3d at 428-29 (citations omitted). At this juncture it would be premature for us to prescribe the remedy that should apply here before the postconviction court properly conducts a complete prejudice analysis. See id. at 433. That said, if after a legally appropriate analysis Kohutka is found to have suffered prejudice as a result of his trial counsel's misadvice, the postconviction court must devise a proper remedy as discussed in the line of cases starting with Lafler and Alcorn.4 We reverse in part the denial of Kohutka's motion for postconviction relief based on counsel's misadvice as described 4 Some evidence in the record suggests that the State's five- year offer necessarily included a reduced charge similar to the one the State offered to Kohutka's brother. The postconviction court may need to take further evidence on the nature of the State's offer to determine the appropriate remedy. 11 above, and we remand for further proceedings consistent with this opinion. BLACK and SLEET, JJ., Concur. Opinion subject to revision prior to official publication. 12