Sanchez v. State , 2017 Fla. App. LEXIS 1685 ( 2017 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ISSAC G. SANCHEZ, )
)
Appellant, )
)
v. ) Case No. 2D16-1510
)
STATE OF FLORIDA )
)
Appellee. )
___________________________________)
Opinion filed February 10, 2017.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Hillsborough County; Michelle Sisco,
Judge.
Issac G. Sanchez, pro se.
KHOUZAM, Judge.
Issac Sanchez appeals the order summarily denying his motion for
postconviction relief filed under Florida Rule of Criminal Procedure 3.850, in which he
raised four claims of ineffective assistance of trial counsel. Because grounds one and
two are either legally insufficient or conclusively refuted by the record, we affirm the
summary denial of relief on those grounds without further discussion. But because
grounds three and four allege facially sufficient claims that are not conclusively refuted
by the attachments to the postconviction court's order, we reverse the summary denial
of these grounds and remand for the postconviction court to either attach record
evidence that conclusively refutes them or grant Mr. Sanchez an evidentiary hearing.
The charges against Mr. Sanchez arose, in part, after law enforcement
seized a package from a United States Post Office in Tampa in response to a narcotics
dog's alert. The package was addressed to Jason Cardenas (an alias used by Mr.
Sanchez) and contained a trafficking amount of heroin. Mr. Sanchez pleaded guilty to
trafficking in illegal drugs (count one), felon in possession of a firearm (count two),
unauthorized possession or use of a driver's license (count three), possession of less
than twenty grams of cannabis (count four), conspiracy to traffic in illegal drugs (count
five), and attempted trafficking in illegal drugs (count six). Before sentencing, he moved
to withdraw his plea, but his motion was denied. He was sentenced to a three-year
mandatory minimum sentence on count one, 66.37 months' prison on counts two and
six, sixty months' prison on count three, and a fifteen-year mandatory minimum
sentence on count five, all to run concurrently. This court entered a per curiam
affirmance on Mr. Sanchez's direct appeal from his judgment and sentences. Garcia-
Sanchez v. State, 174 So. 3d 1002 (Fla. 2d DCA 2015). Thereafter, Mr. Sanchez filed
his timely motion for postconviction relief, which the postconviction court summarily
denied.
We review the order summarily denying Mr. Sanchez's motion for
postconviction relief de novo. See Meus v. State, 968 So. 2d 706, 710 (Fla. 2d DCA
2007). To plead a facially sufficient claim for relief, Mr. Sanchez was required to allege
facts establishing that his trial counsel's performance was deficient and that he was
prejudiced by that performance. See Grosvenor v. State, 874 So. 2d 1176, 1178 (Fla.
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2004) (citing Strickland v. Washington, 466 U.S. 668 (1984)). Because Mr. Sanchez's
motion followed the entry of a guilty plea to the underlying offenses, he had to allege
that there existed "a reasonable probability that, but for counsel's errors, [he] would not
have pleaded guilty and would have insisted on going to trial" in order to establish that
he was prejudiced by his trial counsel's deficient performance. Id. at 1179 (quoting Hill
v. Lockhart, 474 U.S. 52, 59 (1985)). "A defendant is entitled to an evidentiary hearing
on his postconviction motion unless (1) the motion, files and records in the case
conclusively show that the defendant is not entitled to any relief, or (2) the motion or a
particular claim is legally insufficient." Johnson v. State, 904 So. 2d 400, 403 (Fla.
2005). We accept Mr. Sanchez's factual allegations as true to the extent that they are
not conclusively refuted by the record. See id.In ground three of his motion, Mr. Sanchez argued that his trial counsel
was ineffective for advising him to plead guilty when "the heroin discovered by law
enforcement was illegally seized absent a sufficiently reliable dog to alert the police to
the Defendant's package that the Defendant [had] a reasonable expectation of privacy
to." He argued that no written reports containing the dog's certification or training
records had been filed and that his counsel failed to investigate whether the dog was
qualified or his alert reliable. Mr. Sanchez also asserted that a timely motion to
suppress based upon an unreliable dog alert would have been granted. Had trial
counsel informed Mr. Sanchez that the heroin seized by law enforcement could have
been suppressed on this basis, he would not have entered into a plea and would have
gone to trial. Thus, he claimed, his plea was involuntary and he should be entitled to
withdraw it.
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In ground four, Mr. Sanchez argued that even assuming the alert by the
narcotics dog was reliable, the package was illegally seized and opened by law
enforcement because law enforcement did not first obtain a warrant to permit them to
search the package based upon the alert. He alleged that the package was addressed
to "Jason Cardenas, an alleged listed alias to [Mr. Sanchez]." He argued that his trial
counsel was ineffective for failing to file a motion to suppress on this alternate basis and
advising him to plead guilty without filing a motion to suppress. Accordingly, he
concluded that his plea was involuntary and that he should be permitted to withdraw it.
The postconviction court found that Mr. Sanchez's allegations in grounds
three and four stated facially sufficient claims for relief. But it summarily denied relief on
both grounds, concluding that Mr. Sanchez could not prove the requisite prejudice. The
court noted that Mr. Sanchez did not raise these issues in his motion to withdraw plea
and that during his plea colloquy he represented that there was no further work or
investigation that he wished his trial counsel to perform. However, the record
attachments to the postconviction court's order do not establish that Mr. Sanchez was
aware at the time he entered his plea or filed his motion to withdraw plea that counsel
had grounds for suppressing the contraband. So Mr. Sanchez's expression of
satisfaction with his counsel during his plea colloquy was not a valid basis for denying
relief. See Jenkins v. State, 44 So. 3d 243, 244 (Fla. 2d DCA 2010) (holding that
defendant's acknowledgment during plea colloquy that he was satisfied with counsel's
performance did not refute claim that counsel failed to investigate where defendant's
motion did not state when he learned of counsel's failure); see also Coursey v. State,
164 So. 3d 119, 120 (Fla. 2d DCA 2015) ("[A]n allegation that trial counsel provided
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ineffective assistance by failing to file a motion to suppress is a legally sufficient claim,
which is not waived by entry of a plea." (quoting Campbell v. State, 139 So. 3d 490, 497
(Fla. 2d DCA 2014))). Moreover, Mr. Sanchez alleged facially sufficient claims for relief
based upon counsel's alleged failure to advise him of grounds for suppressing the
contraband, thereby causing him to involuntarily enter into his plea. See Coursey, 164
So. 3d at 120; Campbell, 139 So. 3d at 497.
As a threshold issue, we note that Mr. Sanchez sufficiently alleged a
legitimate expectation of privacy in the package to establish his standing to challenge its
search and seizure. A defendant has a legitimate expectation of privacy in a package
and standing to challenge its search if he is the addressee under a fictitious name linked
to him. State v. Williams, 184 So. 3d 1205, 1209-11 (Fla. 1st DCA 2016). Here, Mr.
Sanchez alleged that he had a reasonable expectation of privacy in the package, which
was addressed to him under a fictitious name.
With respect to ground three, an alert by a properly trained narcotics
detection dog generally provides probable cause for a search. State v. Grue, 130 So.
3d 256, 259 (Fla. 5th DCA 2013). But the alert must be sufficiently reliable based upon
the totality of the circumstances. Id. (citing Florida v. Harris, 133 S. Ct. 1050, 1056-58
(2013)). Mr. Sanchez alleged that his counsel failed to investigate whether the dog's
alert was sufficiently reliable and that a timely motion to suppress on those grounds
would have been granted. Because Mr. Sanchez alleged that his counsel failed to
advise him about a valid ground to suppress the contraband contained in the package
prior to Mr. Sanchez's plea, he alleged a facially sufficient claim for relief. See Coursey,
164 So. 3d at 120; Campbell, 139 So. 3d at 497; Jenkins, 44 So. 3d at 244.
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Similarly, Mr. Sanchez alleged a facially sufficient claim of ineffective
assistance of counsel in ground four based upon counsel's alleged failure to file the
motion to suppress because the package was searched without a warrant. See
Coursey, 164 So. 3d at 120; Campbell, 139 So. 3d at 497. Mr. Sanchez correctly
asserted that even if a reliable alert by the narcotics dog provided law enforcement with
probable cause to seize the package, law enforcement could not search the package
without first obtaining a warrant. See Daniels v. Cochran, 654 So. 2d 609, 613 (Fla. 4th
DCA 1995) ("[A] canine sniff which alerts to a package does not eliminate the
requirement that, absent exigent circumstances, consent or other recognized
exceptions, a search warrant must be obtained before a search of the contents of the
package passes constitutional muster."). Thus Mr. Sanchez alleged a facially sufficient
claim for postconviction relief based upon his counsel's alleged failure to advise him of
grounds to suppress the contraband prior to his plea. See Coursey, 164 So. 3d at 120;
Campbell, 139 So. 3d at 497.
Based on the foregoing discussion, we reverse the order to the extent that
it summarily denies relief on grounds three and four and remand for the postconviction
court either to attach record evidence that conclusively refutes Mr. Sanchez's claims or
to grant him an evidentiary hearing on these grounds. See Shelby v. State, 75 So. 3d
845, 847-48 (Fla. 2d DCA 2011).
Affirmed in part, reversed in part, and remanded.
NORTHCUTT and BLACK, JJ., Concur.
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