Opinion
No. 1D18-535
12-23-2019
Brandon B. WILSON, Appellant, v. STATE of Florida, Appellee.
Andy Thomas, Public Defender, Steven L. Seliger and Jasmine Russell, Assistant Public Defenders, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Trisha Meggs Pate, Bureau Chief - Criminal Appeals, Tallahassee, for Appellee.
Andy Thomas, Public Defender, Steven L. Seliger and Jasmine Russell, Assistant Public Defenders, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Trisha Meggs Pate, Bureau Chief - Criminal Appeals, Tallahassee, for Appellee.
Per Curiam.
Brandon B. Wilson seeks review of the trial court's summary denial of his motion for postconviction relief. We affirm and write only to address Wilson's claim that defense counsel was ineffective for failing to object to a jury instruction on first-degree felony murder based on the predicate felony of burglary where the alleged burglary occurred in a parking garage open to the public. We conclude that summary denial of this claim was proper because Wilson did not demonstrate entitlement to relief under Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Wilson was indicted for first-degree premeditated murder. At trial, the State presented evidence that Wilson and two other men followed the victim from a nightclub into a parking garage with the intent to rob him of money. After a brief altercation, Wilson pulled a gun and fatally shot the victim twice before fleeing. Wilson's primary defense centered on the identity of the shooter, i.e., that he was not involved in the shooting.
The trial court instructed the jury that it could find Wilson guilty of first-degree murder on two alternative theories: (1) the killing was premeditated, or (2) the death was a consequence of Wilson's commission or attempted commission of burglary (felony murder). Under the felony murder theory, the court instructed that in order to prove the crime of burglary the State had to prove the following two elements beyond a reasonable doubt: (1) Wilson entered the parking garage with the permission or consent of the city that owned it; and (2) after entering the garage, Wilson "remained therein" with the intent to commit or attempt to commit a robbery. The court further instructed that to prove the crime of robbery, the State had to prove the following four elements beyond a reasonable doubt: (1) Wilson took or attempted to take money from the person or custody of the victim; (2) force, violence, assault, or putting in fear was used in the course of the taking; (3) the property taken was of some value; and (4) the taking was with the intent to permanently or temporarily deprive the victim of his right to the property or any benefit from it.
The jury returned a general verdict finding Wilson guilty of first-degree murder. The trial court adjudicated Wilson guilty and sentenced him to life imprisonment. On appeal, this court affirmed the conviction and sentence. Wilson v. State , 165 So. 3d 47 (Fla. 1st DCA 2015).
In his motion for postconviction relief, Wilson raised four claims of ineffective assistance counsel. In his first claim, he alleged that defense counsel was ineffective in failing to object when the trial court read an erroneous jury instruction on first-degree felony murder. Specifically, he asserted that he could not have committed the murder during a burglary because the location of the murder was a public parking garage that he was lawfully within at the time of the offense. Because it could not be determined whether the jury convicted him based on an invalid felony murder theory, he claimed that he was entitled to a new trial.
The trial court entered an order summarily denying Wilson's postconviction motion. In rejecting Wilson's first claim of ineffective assistance of counsel, the court found that (1) the Florida Legislature amended the burglary statute in 2001 to allow a conviction for burglary under circumstances similar to those in this case; and (2) defense counsel did object and argue at trial that Wilson could not have committed felony murder based on an allegation of burglary. This appeal followed.
In order to establish ineffective assistance of counsel, the defendant must show that (1) counsel's performance was deficient, i.e., it fell outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance prejudiced the defense, i.e., there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland , 466 U.S. at 694, 104 S.Ct. 2052. The test for prejudice under Strickland is very different from the test for prejudicial error on direct appeal because "once a conviction has been affirmed on direct appeal, ‘a presumption of finality and legality attaches to the conviction and sentence.’ " Sanders v. State , 946 So. 2d 953, 959 (Fla. 2006) (quoting Goodwin v. State , 751 So. 2d 537, 546 (Fla. 1999) ). Specifically, if the appellant demonstrates that the trial court committed error on direct appeal, the burden is on the State "to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio , 491 So. 2d 1129, 1135 (Fla. 1986). However, in a postconviction proceeding, " Strickland places the burden on the defendant, not the State, to show a ‘reasonable probability’ that the result would have been different." Wong v. Belmontes , 558 U.S. 15, 27, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009).
We conclude as a matter of law that Wilson failed to establish entitlement to relief under the high burden imposed by Strickland . Accordingly, we affirm the summary denial of Wilson's postconviction claim.
AFFIRMED.
Wolf, J., concurs with opinion; Winokur, J., concurs with opinion ; Jay, J., concurs with opinion.
Judge Winokur was substituted for an original panel member in this proceeding after oral argument. He has viewed the recording of the oral argument.
Wolf, J., concurring.
I concur with the decision to affirm. I write separately to express disagreement with the viewpoint asserted in Judge Winokur's opinion that the 2001 amendment to the burglary statute effectively negated the "open to the public defense" to the charge of burglary. I would specifically note that Judge Winokur's assertion has not been adopted by a majority of the panel.
BURGLARY
Although the Legislature amended the burglary statute in 2001, no court has directly addressed whether the amendment had any effect on the "open to the public" defense.
Prior to 2001, Florida defined burglary as "entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain." § 810.02(1), Fla. Stat. (2000) (emphasis added).
Interpreting that statutory language, the Florida Supreme Court held that if a building or structure was open to the public, that was a complete defense to the charge of burglary. Miller v. State , 733 So. 2d 955, 957 (Fla. 1998).
In Delgado v. State , 776 So. 2d 233 (Fla. 2000), the supreme court also found the statutory language stating a defendant could be convicted for "remaining in" only applied if a defendant entered lawfully but remained surreptitiously. 776 So. 2d at 238.
In 2001 the Legislature amended the burglary statute in response to the Florida Supreme Court's decision in Delgado by stating it is not necessary for an invited or licensed person to remain surreptitiously to be convicted of burglary. § 810.015(1) - (6), Fla. Stat. The amended statute provides:
(b) For offenses committed after July 1, 2001, "burglary" means:
1. Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter; or
2. Notwithstanding a licensed or invited entry, remaining in a dwelling, structure, or conveyance:
a. Surreptitiously, with the intent to commit an offense therein;
b. After permission to remain therein has been withdrawn, with the intent to commit an offense therein; or
c. To commit or attempt to commit a forcible felony, as defined in s. 776.08.
A number of districts have continued to vacate defendants' burglary convictions on the basis of the "open to the public" defense without specifically analyzing the change in the statute. Cappello v. State , 199 So. 3d 1113, 1115-16 (Fla. 5th DCA 2016) (reversing a defendant's burglary conviction because there was no evidence in the record that the defendant was in a portion of a convenience store that was not open to the public); Ducas v. State , 84 So. 3d 1212, 1219 (Fla. 3d DCA 2012) (reversing a defendant's burglary conviction because the pharmacy was open to the public); Colbert v. State , 49 So. 3d 819, 822 (Fla. 4th DCA 2010) (reversing a defendant's burglary conviction because the jewelry store was open to the public, even if the display box the defendant shattered was not).
A plain reading of the statute shows the "open to the public" defense is still a complete defense to burglary. Subsection (1)(b)1. lists the defense of "open to the public" or "licensed or invited to enter" in the disjunctive. Although subsection (1)(b)2. explicitly lists exceptions to the "licensed or invited entry" defenses, it does not refer to the "open to the public" defense. If the Legislature wished to make such a drastic change to allow all persons committing "forcible felonies" within a public structure to also be convicted of burglary, the language needed to be more explicit.
Thus, here the jury instruction misstated the law by instructing the jury it could convict if it found appellant remained in the parking garage to commit a forcible felony if, in fact, the parking garage was open to the public. I find, however, based on the facts of this case, appellant failed to demonstrate entitlement to relief under the standards set out in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Winokur, J., concurring.
I agree with the majority that the parts of the order not involving the jury instruction should be affirmed. But respectfully, I disagree with the conclusion that Wilson cannot show prejudice from his counsel's alleged deficient performance in failing to ensure proper jury instructions for burglary, and do not join its opinion. Nonetheless, I agree that the trial court did not err in finding that Wilson did not demonstrate ineffective assistance on this ground, because I find that his claim that his counsel rendered deficient performance in failing to secure proper jury instructions for the crime of burglary (alleged as a predicate offense for felony murder) is based on a flawed reading of the burglary statute. Wilson's claim that he was entitled to a special instruction describing an "open to the public" defense to burglary misstates the substantive law of burglary. As such, his counsel could not have acted deficiently in failing to request such an instruction. Moreover, the instructions given properly tracked the applicable standard jury instructions, so Wilson's counsel could not have been ineffective for failing to object to them or request additional instruction.
I.
The jury instructions for first-degree murder included an instruction on felony murder, that is, that the victim's death was a consequence of Wilson's commission of a burglary. Under the felony-murder theory, the State instructed that Wilson committed a burglary if the jury found two elements: 1) Wilson entered the parking garage with the permission or consent of the city that owned it, and 2) after entering the garage, Wilson "remained therein" in the parking garage with the intent to commit or attempt to commit a robbery. Completing a general verdict form, the jury found Wilson guilty of first-degree murder.
In his postconviction motion, Wilson alleged that the parking garage was indisputably open to the public and therefore he could not legally be guilty of burglary, and consequently felony murder, and thus was entitled to a new trial. See , e.g. , Miller v. State , 733 So. 2d 955, 957 (Fla. 1998) ("[W]e hold that if a defendant can establish that the premises were open to the public, then this is a complete defense [to burglary]"). This argument ignores changes to the burglary statute since Miller was decided. At the time of Miller , the crime of burglary was easily defined: " ‘Burglary’ means entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain." § 810.02(1), Fla. Stat. (1998). This language is clear that one cannot be convicted of burglary if the premises was "open to the public or the defendant is licensed or invited to enter or remain." Thus, being "open to the public" was a complete defense to burglary.
However, the supreme court decision in Delgado v. State , 776 So. 2d 233, 236 (Fla. 2000), led to an alteration to the statutory definition of burglary. In Delgado , the supreme court considered situations when one is invited or licensed to enter premises, but then when this invitation or license is revoked—such as during an altercation with the property owner—the person remains inside with an intent to commit an offense. The supreme court was concerned that if such a situation constituted burglary, "a number of crimes that would normally not qualify as felonies would suddenly be elevated to burglary," as well as the possibility that second-degree murders could be elevated to first-degree felony murders. Id. at 239. After "examining the origins of the crime of burglary" and attempting "to fulfill the purpose for which the crime of burglary was intended," the supreme court held that for one to commit burglary based on "remaining in" a premises with the intent to commit an offense, "the ‘remaining in’ clause should be limited to the defendant who surreptitiously remains." Id. at 236, 240.
On this note, the supreme court reviewed commentary to the Model Penal Code expressing why the "remaining in" language should be limited in the burglary context:
[Burglary under the "remaining in" language] literally would include "a visitor to one's home ... who becomes involved in an argument with his host, threatens to punch him in the nose, and is asked to leave; if he does not leave, but continues his threatening argument, he would ... be guilty of burglary."
Delgado , 776 So. 2d at 237 (quoting Model Penal Code, § 221.1 cmt. 3(a) at 68-71 (1980)) (emphasis omitted)).
Expressly finding Delgado to be wrongly decided, the Florida Legislature amended the burglary statute to nullify it. § 810.015, Fla. Stat.; Ch. 2001-58, § 1, Laws of Fla. Section 810.02(1) was amended to provide two distinct burglary offenses:
(b) For offenses committed after July 1, 2001, "burglary" means:
1. Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter; or
2. Notwithstanding a licensed or invited entry, remaining in a dwelling, structure, or conveyance:
a. Surreptitiously, with the intent to commit an offense therein;
b. After permission to remain therein has been withdrawn, with the intent to commit an offense therein; or
c. To commit or attempt to commit a forcible felony, as defined in s. 776.08.
§ 810.02(1)(b), Fla. Stat. (2001). Under this amended statute, one can commit a burglary either by violating the provisions of subsection 1. or by violating the provisions of subsection 2. The word "or" between the two subsections shows clearly that subsection 2. is not merely a continuation of subsection 1., but is a separate set of elements that constitutes burglary. This is also demonstrated by the standard jury instructions, which include two separate sets of instructions for burglary—one covering subsection 1. and one covering subsection 2. Fla. St. Jury Instr. (Crim.) 13.1. Notably, both the statute and the standard jury instructions exclude premises that are open to the public from the definition of burglary under subsection 1., but do not exclude premises that are open to the public from the definition of burglary under subsection 2.
Wilson was not charged with subsection 1. burglary, rendering it inapplicable. Under section 810.02(1)(b) 2.c., Wilson's burglary charge accused him of the following: "Notwithstanding a licensed or invited entry, remaining in a dwelling, structure, or conveyance[ t]o commit or attempt to commit a forcible felony, as defined in s. 776.08." Whether the premises are open to the public is clearly not a defense to this crime under its plain language; the absence of open-to-the-public language under subsection 2. means that it is irrelevant whether the premises were open to the public. Under this formulation, a person who "remains in" premises with the intent to commit a forcible felony commits burglary. It is true that this formulation is not always consistent with the historical understanding of the crime of burglary. Nonetheless it is exactly what the statute says. Because it was not a defense that the parking garage Wilson remained in was open to the public, his counsel was not ineffective for not requesting this instruction.
If the Legislature had wished to provide this as a defense to section 810.02(1)(b) 2., it could have written a subsection stating, "It is not burglary under any circumstance to enter or remain in a dwelling, a structure, or a conveyance with the intent to commit an offense if the premises are open to the public." Instead, it made premises being "open to the public" a defense to "entering in" burglary (subsection 1.), and excluded its relevance for "remaining in" burglary (subsection 2.).
This does not appear to be an unintended quirk. The Legislature quickly rebuked the supreme court's attempt to limit burglary to its traditional meaning, instead clarifying the statute to specify that "remaining in" burglary is not limited to surreptitious remaining in.
II.
Several cases have continued to apply the "open to the public" exception to burglary prosecutions following the amendment of the burglary statute in 2001. See Cappello v. State , 199 So. 3d 1113, 1115-16 (Fla. 5th DCA 2016) ; Ducas v. State , 84 So. 3d 1212, 1219 (Fla. 3d DCA 2012) ; Colbert v. State , 49 So. 3d 819, 822 (Fla. 4th DCA 2010). However, a review of each of these cases reveals that the defendants there were charged under section 810.02(1)(b) 1., as opposed to section 810.02(1)(b) 2., which forms the basis of Wilson's charge. As stated above, it is a defense to subsection 1. burglary—involving "entering" the premises as opposed to "remaining in" the premises—if the premises are "at the time open to the public." These cases reveal nothing about whether Wilson, who was charged under a different subsection, was entitled to an "open to the public" instruction.
III.
Even if I agreed with Wilson's argument regarding burglary on the merits, I would still find that the record does not demonstrate deficient performance. The instructions given in Wilson's case directly tracked the standard jury instructions to be used when "the information or indictment charges remaining with the intent to commit an offense." Fla. Std. Jury Instr. (Crim.) 13.1. Wilson claims that the instructions were erroneous and that his counsel provided ineffective assistance by failing to object to them. As stated above, the instructions were not erroneous. But even if they were, it is well-settled that counsel is not ineffective for failing to object to standard jury instructions. See Vining v. State , 827 So. 2d 201, 214-15 (Fla. 2002) ("Further, counsel cannot be deemed ineffective for failing to object to the standard jury instruction or to request a special instruction"); Thompson v. State , 759 So. 2d 650, 665 (Fla. 2000) (holding that "trial counsel's failure to object to standard jury instructions that have not been invalidated by this Court does not render counsel's performance deficient"). Wilson's postconviction ground could have been rejected for this reason alone.
IV.
The plain language of the burglary statute makes clear that there is no open-to-the-public exception to burglary under section 810.02(1)(b) 2. Therefore, Wilson could have been properly found guilty of burglary and felony murder. Regardless, counsel did not render deficient performance for not objecting to standard jury instructions or not requesting a special instruction. The denial of this ground for postconviction relief should have been affirmed for this reason alone.
Jay, J., concurring.
I concur in the affirmance of the summary denial of Wilson's postconviction claim because he cannot establish that he was prejudiced by defense counsel's failure to object to the felony murder instruction. In light of this, it is not necessary to address whether defense counsel's failure to object constituted deficient performance. See Hill v. Lockhart , 474 U.S. 52, 60, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (declining to address the deficiency prong of Strickland where petitioner's allegations were insufficient to satisfy the prejudice prong of Strickland ).
In his postconviction motion, Wilson claimed that he was prejudiced by defense counsel's failure to object to the felony murder instruction because the jury could have convicted him based on an invalid theory of first-degree murder. In doing so, he relied upon Phillips v. State , 100 So. 3d 249 (Fla. 4th DCA 2012), in which the Fourth District held that a felony murder instruction based on the unauthorized predicate felony of "attempted murder" constituted fundamental error on direct appeal because (1) the trial court failed to give an accurate instruction related to an element of the charged offense; and (2) it was impossible to determine from the general verdict whether the jury convicted the defendant of first-degree murder on the valid theory of premeditation or on the invalid theory of felony murder. Id. at 250-51.
Similarly, in Tricarico v. State , 711 So. 2d 624 (Fla. 4th DCA 1998), the Fourth District held that a defendant, who had been convicted of first-degree murder based on dual theories of premeditation and felony murder, was entitled to postconviction relief and a new trial where the felony murder theory was based on the unauthorized predicate felony of "attempted trafficking in cocaine" and it could not be determined from the general verdict whether the defendant had been convicted based on a legally improper theory.* Id. at 625-27.
This case is distinguishable from both Phillips and Tricarico because the trial court did not fail to give an accurate instruction on an element of the charged offense, i.e., a felony murder instruction based on an unauthorized predicate felony. Burglary is an enumerated felony for first-degree felony murder. § 782.04(1)(a)2.e., Fla. Stat. (2011). At most, the trial court failed to properly instruct on an affirmative defense to burglary—that the premises were open to the public. See Miller v. State , 733 So. 2d 955, 957 (Fla. 1998) (holding that if a defendant can establish that the premises were open to the public, then this is a complete defense to burglary); Collett v. State , 676 So. 2d 1046, 1047 (Fla. 1st DCA 1996) (holding that it is an affirmative defense to the charge of burglary that the premises the defendant is accused of burglarizing were open to the public at the time of the offense). A jury instruction as to an affirmative defense—as opposed to an element of the crime—does not constitute fundamental error unless it deprives the defendant of his or her sole or primary defense. Moorer v. State , 278 So. 3d 181, 187 (Fla. 1st DCA 2019) (citing Martinez v. State , 981 So. 2d 449, 455 (Fla. 2008) ). Because the instruction did not deprive Wilson of his sole or primary defense, Wilson could not establish fundamental error on direct appeal. If Wilson could not establish fundamental error on direct appeal, he cannot establish prejudice under Strickland . See Chandler v. State , 848 So. 2d 1031, 1046 (Fla. 2003) (explaining that if a defendant cannot demonstrate fundamental error on direct appeal, he or she likewise cannot demonstrate prejudice under the Strickland standard).
Wilson further failed to establish prejudice under Strickland because he cannot meet his burden of showing a "reasonable probability" that the result of the trial would have been different. The felony murder instruction given to the jury provided that the State had to prove that the burglary was committed with the intent to commit or attempt to commit a robbery. The instruction also said that the State had to prove the elements of robbery beyond a reasonable doubt. Based on this instruction, if the jury had relied on the felony murder theory, it would have had to find—at a minimum—that Wilson attempted to commit a robbery. See Carter v. Brown & Williamson Tobacco Corp. , 778 So. 2d 932, 942 (Fla. 2000) ("Absent a finding to the contrary, juries are presumed to follow the instructions given them."); Collier v. State , 259 So. 2d 765, 766 (Fla. 1st DCA 1972) ("It must be presumed that the jury followed the court's instructions and found appellant guilty only after being satisfied beyond a reasonable doubt that he had committed the crime as charged."). Attempted robbery is an independent, predicate felony supporting a conviction for first-degree murder under section 782.04(1)(a)2.d.
Accordingly, for the reasons set forth above, I concur in the affirmance of the trial court's order.
* Even though it was addressing a postconviction claim, the court did not analyze the claim under the two-prong Strickland standard.