JEFFREY LEE ATWATER, Appellant, vs. STATE OF FLORIDA, Appellee.
No. SC19-1709
Supreme Court of Florida
August 13, 2020
PER CURIAM.
Jeffrey Lee Atwater appeals an order of the circuit court denying his fifth successive postconviction motion filed pursuant to
BACKGROUND
Atwater was convicted of first-degree murder and robbery and was sentenced to death. The record reflects that during closing arguments, defense counsel conceded that the State‘s evidence demonstrated that Atwater committed second-degree murder, though counsel argued there was insufficient evidence of first-degree murder.
In his fifth successive postconviction motion, Atwater argued that he was not informed of counsel‘s plan to concede guilt, and if he had been informed, he would not have agreed. Invoking McCoy v. Louisiana, 138 S. Ct. 1500 (2018), Atwater asserted that counsel‘s concession of guilt without his consent was a structural error that entitled him to a new trial. McCoy held that it violates the
First, the court found that the postconviction motion was untimely.
Second, even if the postconviction motion had been timely, the court found it was without merit. Taking as true the factual allegations in Atwater‘s motion, the court found that McCoy does not govern this case because Atwater did not allege that counsel conceded his guilt over Atwater‘s objections. Instead, Atwater‘s motion states that he never discussed with his attorneys the possibility of conceding guilt.
The trial court found this case to be controlled by Florida v. Nixon, 543 U.S. 175, 178, 192 (2004), in which the Supreme Court held that where the defendant “neither consents nor objects” to a proposed trial strategy of conceding guilt, there is no “blanket rule demanding the defendant‘s explicit consent.” Therefore, the trial court found Atwater‘s claim under McCoy was without merit and dismissed the postconviction motion.
ANALYSIS
On appeal, Atwater challenges both the dismissal of his postconviction motion and the trial court‘s failure to conduct a case management conference or evidentiary hearing prior to ruling on the motion. “We review a circuit court‘s summary rejection of a postconviction claim de novo, ‘accepting the movant‘s factual allegations as true to the extent they are not refuted by the record, and affirming the ruling if the record conclusively shows that the movant is entitled to no relief.‘” Dailey v. State, 279 So. 3d 1208, 1215 (Fla. 2019) (quoting Pardo v. State, 108 So. 3d 558, 561 (Fla. 2012)).
We agree with the trial court that, accepting as true the factual allegations in Atwater‘s motion, he has failed to show entitlement to relief under McCoy. Contrary to Atwater‘s claim, the Supreme Court in McCoy did not hold that counsel is required to obtain the express consent of a defendant prior to conceding guilt. Instead, the Court held that if a defendant “expressly asserts that the objective of ‘his defence’ is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.” McCoy, 138 S. Ct. at 1509 (quoting
Unlike the defendant in McCoy, Atwater does not allege that he expressed to counsel that his objective was to maintain his innocence or that he expressly objected to any admission of guilt. Instead, Atwater states that he did not discuss the possibility of conceding guilt with counsel. The crux of Atwater‘s argument is to fault counsel for failing to discuss with Atwater the potential trial strategy of conceding guilt. But counsel‘s duty to discuss trial strategy with the defendant was established long before the Supreme Court‘s decision in McCoy. In its 2004 decision in Nixon, for example, the Supreme Court noted that “[a]n attorney undoubtedly has a duty to consult with the client regarding ‘important decisions,’ including questions of overarching defense strategy.” Nixon, 543 U.S. at 187 (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984) (“From counsel‘s function as assistant to the defendant derive[s] the . . . dut[y] to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution.“)). At its heart, Atwater‘s claim is not a McCoy claim; Atwater has not alleged that counsel conceded guilt over Atwater‘s objection. Therefore, the trial court was right to conclude that Atwater‘s allegations are facially insufficient to warrant relief under McCoy.
Because Atwater has not stated a facially sufficient claim, the trial court‘s failure to hold a case management hearing as provided for by
In light of this disposition, we find it unnecessary to address the trial court‘s ruling that a motion filed pursuant to
CONCLUSION
Based on the foregoing, we affirm the dismissal of the postconviction motion.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, and COURIEL, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Pinellas County, Joseph Anthony Bulone, Judge - Case No. 521989CF013299XXXXNO
Eric Pinkard, Capital Collateral Regional Counsel, Julie A. Morley, James L. Driscoll, Jr., and Tracy M. Henry, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
Ashley Moody, Attorney General, Tallahassee, Florida, and Marilyn Muir Beccue, Senior Assistant Attorney General, Tampa, Florida, for Appellee