FRANCISCO MENDOZA, APPELLANT,

v.

THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 2012-02-29

No. 3D12-153

Before CORTIÑAS, EMAS and FERNANDEZ, JJ.

81 So. 3d 579 Florida District Court of Appeal, Third District (2012) Caution

Cited by 18 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Francisco Mendoza appealed the denial of his post-conviction motion for ineffective assistance of counsel under Florida Rule of Criminal Procedure 3.850. The Third District Court of Appeal affirmed the trial court's denial, holding that trial counsel's strategic decision not to call certain witnesses was virtually unchallengeable because a reasonable investigation had been conducted, and Mendoza had expressly agreed to the decision during trial.

Holding

The court held that the strategic decision not to call witnesses is virtually unchallengeable when a reasonable investigation has been conducted, and Mendoza failed to rebut the presumption that counsel's decision was reasonable and strategic. Moreover, Mendoza's express agreement to counsel's decision was fatal to his ineffective assistance claim.

Headnotes

[1] Decisions regarding whether to call specific witnesses are generally strategic and committed to the professional judgment of trial counsel, provided a reasonable investig…

[2] An ineffective assistance of counsel claim based on the failure to call a witness is distinct from a claim based on the failure to reasonably investigate and locate witne…

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Key Quotes

“Whether to call a particular witness to testify at trial is ordinarily a strategic decision committed to the professional judgment of trial counsel, assuming that counsel has conducted a reasonable investigation before making such a decision. These strategic decisions are generally not subject to postconviction attack under Strickland.”
Establishes that witness selection is ordinarily a strategic decision not subject to post-conviction challenge.

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Facts & Procedural History

Mendoza was tried and convicted. At trial, the trial court conducted an on-the-record colloquy with Mendoza outside the jury's presence, asking whethe…

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Topics

Duty To Investigate Actual Prejudice Deficient Performance Strickland V. Washington Standard

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Opinion of the Court

EMAS, J.

Defendant Francisco Mendoza appeals the trial court’s order denying, without an evidentiary hearing, his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Mendoza’s motion raised six claims. While we find that none of the claims has merit, one of Mendoza’s claims does warrant further discussion.

Mendoza asserted in his posteonviction motion that trial counsel rendered ineffective assistance of counsel for failing to call certain witnesses to testify at the trial,1 *581and that such failure constituted deficient performance resulting in prejudice, warranting relief under the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Whether to call a particular witness to testify at trial is ordinarily a strategic decision committed to the professional judgment of trial counsel, assuming that counsel has conducted a reasonable investigation before making such a decision. These strategic decisions are generally not subject to postconviction attack under Strickland.

An ineffective assistance claim for failure to call a witness to testify at trial must be distinguished from an ineffective assistance claim for failure to reasonably investigate and locate witnesses. Unlike the strategic decision to call a witness to testify at trial, the failure to reasonably investigate and locate witnesses can often serve as a colorable claim of ineffective assistance of counsel. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (observing that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary” (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052)).

However, if a reasonable investigation has been conducted, subsequent decisions based on that investigation (such as the decision not to call a particular witness at trial) are presumed to be reasonable and strategic and are “virtually unchallengeable.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. A defendant can rebut this presumption only by establishing that “no competent counsel” would have made the same decision. White v. State, 729 So.2d 909, 912 (Fla.1999). See also Windom v. State, 886 So.2d 915, 922 (Fla.2004) (“A strategic or tactical decision is not a valid basis for an ineffective claim unless a defendant is able to show that no competent trial counsel would have utilized the tactics employed by trial counsel.”).

In the instant case, however, Mendoza does not claim that the underlying investigation of these witnesses was unreasonable. Rather, Mendoza claims that trial counsel knew what these witnesses would testify to, and the failure to call the witnesses met Strickland’s two-prong requirements of constitutionally deficient performance and actual prejudice. Given the reasonableness of the underlying investigation, the subsequent decision not to call these witnesses is presumed to be reasonable and strategic, and, as characterized by Strickland, is virtually unchallengeable. Mendoza has failed to overcome this presumption, and thus cannot establish that trial counsel’s performance was deficient under Strickland.

Moreover, the record reveals that Mendoza affirmatively agreed with his trial counsel’s strategic decision. During trial, the court conducted a colloquy with Mendoza, on the record and outside the presence of the jury, which established that Mendoza agreed with the decision not to call any other witnesses at trial.2 The trial court specifically asked Mendoza whether he was satisfied with his attorney’s performance at trial and whether Mendoza *582wished to call any other witnesses to testify. Mendoza expressed satisfaction with his counsel’s performance, and advised the court that he did not wish to call any other witnesses to testify.3

Thus, not only is Mendoza unable to rebut the presumption that counsel’s decision was reasonable and strategic, Mendoza’s express agreement to such a decision is fatal to his claim of ineffective assistance of counsel.4 See Gamble v. State, 877 So.2d 706, 714 (Fla.2004) (holding “if the defendant consents to counsel’s strategy, there is no merit to a claim of ineffective assistance of counsel”). See also Stein v. State, 995 So.2d 329 (Fla.2008).

Affirmed.

. Of course, Mendoza's agreement was not required for this particular decision. As the United States Supreme Court observed in Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004):

An attorney undoubtedly has a duty to consult with the client regarding "important decisions," including questions of overarching defense strategy. Strickland, 466 U.S. at 688, 104 S.Ct. 2052, 80 L.Ed.2d 674. That obligation, however, does not require counsel to obtain the defendant's consent to "every tactical decision.” Taylor v. Illinois, 484 U.S. 400, 417-418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (an attorney has authority to manage most aspects of the defense without obtaining his client's approval). But certain decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate. A defendant, this Court affirmed, has "the ultimate authority” to determine "whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.” Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); Wainwright v. Sykes, 433 U.S. 72, 93, n. 1, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Burger, C.J., concurring). Concerning those decisions, an attorney must both consult with the defendant and obtain consent to the recommended course of action.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By (14 total)

Darious Wilcox v. State, 143 So. 3d 359 (Fla. 2014)

…not require the State to disclose to the defense which witnesses it finds not to be sufficiently important to present during trial. Rather, whether a party elects to present a witness during trial is a matter of trial strategy. See Mendoza v. State, 81 So. 3d 579, 581 (Fla. 3d DCA 2012). Because the prosecution had no affirmative obligation to provide Wilcox with a revised witness list containing only the individuals the State specifically intended to present during trial, its failure to provide Wilcox with…
Richard v. Fletcher, 177 So. 3d 1010 (Fla. 5th DCA 2015)

…s virtually unchallengeable. Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Defendant can rebut this presumption only by establishing that no competent counsel would have made the same decision. Mendoza v. State, 81 So. 3d 579, 581 (Fla. 3d DCA 2012). However, he cannot do so. First, it is questionable whether testimony that [the victim’s mother] was having an affair with Defendant’s friend would have been admissible. Even if it had been, there is no reasonable probabilit…
Renardo Ferguson v. State, 101 So. 3d 895 (Fla. 4th DCA 2012)

….S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). “[I]f the defendant consents to counsel’s strategy, there is no merit to a claim of ineffective assistance of counsel.” Gamble v. State, 877 So. 2d 706, 714 (Fla.2004). See also Mendoza v. State, 81 So. 3d 579, 582 (Fla. 3d DCA 2012) (“[N]ot only is Mendoza unable to rebut the presumption that counsel’s decision was reasonable and strategic, Mendoza’s express agreement to such a decision is fatal to his claim of ineffective assistance of counsel.”). Here,…

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Authorities Cited (11 total)

Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
Wainwright v. Sykes, 433 U.S. 72 (U.S. 1977)
Wiggins v. Smith, 539 U.S. 510 (U.S. 2003)
Jones v. Barnes, 463 U.S. 745 (U.S. 1983)
Alaska S.S. Co., Inc. v. Petterson, 347 U.S. 396 (U.S. 1954)
Taylor v. Illinois, 484 U.S. 400 (U.S. 1988)
Florida v. Nixon, 543 U.S. 175 (U.S. 2004)
Windom v. State, 886 So. 2d 915 (Fla. 2004)
Gamble v. State, 877 So. 2d 706 (Fla. 2004)
White v. State, 729 So. 2d 909 (Fla. 1999)

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FRANCISCO MENDOZA, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By (14 total)

Authorities Cited (11 total)

FRANCISCO MENDOZA, APPELLANT,

v.

THE STATE OF FLORIDA, APPELLEE