Johnson v. State
2013 Fla. App. LEXIS 14083
Fla. Dist. Ct. App.2013Background
- Barry Joseph Johnson was convicted by a jury of second-degree murder after testimony and evidence the victim was shot in the back during an altercation; Johnson testified he did not shoot the victim.
- At sentencing the judge imposed life with a 25-year mandatory minimum for use of a firearm and explicitly referenced Johnson’s continued denial of guilt and lack of remorse as reasons for the harsh sentence.
- Johnson filed a Rule 3.850 postconviction motion alleging, among other claims, that trial counsel was ineffective for failing to object to the judge’s consideration of Johnson’s assertion of innocence and lack of remorse at sentencing (claim seven).
- The postconviction court denied most claims summarily, dismissed one, and denied claim seven without an evidentiary hearing; Johnson appealed.
- The majority held that claims of ineffective assistance for failing to object to improper sentencing considerations are cognizable under 3.850, found counsel deficient for not objecting to the judge’s reliance on Johnson’s assertions of innocence/lack of remorse, and concluded prejudice undermined confidence in the sentence.
- The court reversed the denial of claim seven and remanded for resentencing before a different judge; the remainder of the postconviction denials were affirmed. Judge Altenbernd dissented, arguing counsel’s failure to object might have been tactical or inadvertent and that relief was not warranted on the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an ineffective-assistance claim for failing to object to a judge’s consideration of a defendant’s protestations of innocence or lack of remorse at sentencing is cognizable on postconviction review | Johnson: Such an ineffective-assistance claim is cognizable under Rule 3.850 (paralleling claims about improper sentencing reasons) | State: (Implicit) This issue could have been raised on direct appeal and thus is not a basis for relief now | Cognizable on postconviction review; majority follows Rodriguez and Pilkington analogies and allows the claim |
| Whether the trial judge impermissibly relied on Johnson’s claims of innocence and lack of remorse when sentencing | Johnson: Judge explicitly relied on Johnson’s denial of guilt and lack of remorse to justify life sentence | State: Judge had other valid reasons (seriousness of crime, facts) and any error could have been challenged on direct appeal; dissent suggests judge would have withdrawn improper reliance if objected | Majority: Judge did rely on improper factors (claims of innocence and truthfulness), violating due process |
| Whether trial counsel’s failure to object to the improper sentencing remarks was deficient performance under Strickland | Johnson: No tactical justification existed for counsel’s silence; failure to object was not reasonable | State/Dissent: Counsel might have had tactical reasons or been caught in emotion; absent clear record of intent, omission is not per se ineffective | Majority: Counsel’s performance was deficient because no conceivable tactical reason justified silence when judge relied on improper factors |
| Whether the deficient performance was prejudicial (reasonable probability of different outcome) | Johnson: Reliance on improper factors at sentencing undermines confidence in the life sentence and creates reasonable probability of a different outcome absent the error | State/Dissent: Even with an objection, judge likely would have reimposed the same sentence; no showing of prejudice in a postconviction record-only proceeding | Majority: Prejudice established — improper factors undermined confidence in the sentence; remand for resentencing before a different judge required |
Key Cases Cited
- Smith v. State, 62 So.3d 698 (Fla. 2d DCA 2011) (trial judge may not consider defendant’s claim of innocence or truthfulness when sentencing)
- Hannum v. State, 13 So.3d 132 (Fla. 2d DCA 2009) (reversal required where sentencing court relied on improper factors; due process dimension)
- Bracero v. State, 10 So.3d 664 (Fla. 2d DCA 2009) (sentencing courts may not consider defendant’s assertion of innocence)
- Rodriguez v. State, 932 So.2d 1287 (Fla. 2d DCA 2006) (ineffective-assistance claims for failure to object to improper sentencing reasons are cognizable in postconviction proceedings)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishing the two-prong ineffective-assistance standard of deficient performance and prejudice)