GARY ANTHONY PENTON v. STATE OF FLORIDA ( 2018 )


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  •                NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
    MOTION AND, IF FILED, DETERMINED
    IN THE DISTRICT COURT OF APPEAL
    OF FLORIDA
    SECOND DISTRICT
    GARY ANTHONY PENTON,               )
    )
    Appellant,              )
    )
    v.                                 )               Case No. 2D17-3765
    )
    STATE OF FLORIDA                   )
    )
    Appellee.               )
    ___________________________________)
    Opinion filed December 28, 2018.
    Appeal pursuant to Fla. R. App. P.
    9.141(b)(2) from the Circuit Court for Pasco
    County; Kim Campbell, Judge.
    Gary Penton, pro se.
    SILBERMAN, Judge.
    Gary Penton appeals the summary denial of his motion for postconviction
    relief filed under Florida Rule of Criminal Procedure 3.850. We affirm the denial of
    claims two(a), two(b), and four without comment, but we reverse the denial of claims
    one and three and remand for further consideration of those claims.
    Penton was convicted of one count of robbery after Penton's roommates,
    Mike and Billy, robbed a passenger who was waiting in Penton's stranded vehicle while
    Penton was walking to a gas station to obtain gas. Following the robbery, Penton gave
    three statements to law enforcement. He gave his first statement at the scene of the
    robbery to a responding deputy. According to the deputy's trial testimony, Penton said
    that he had given the victim, George Ray Flagg, a ride to the dollar store and the bank.
    Penton started running out of gas so he turned off the road, circled through a parking
    lot, and began driving to a Circle K that they had just passed. The truck then ran out of
    gas, so Penton retrieved a gas can from the rear of the truck and walked to the Circle K.
    When Penton returned, he saw Flagg standing in the road on the phone with 911.
    Flagg said that he had been robbed. According to the deputy, Penton "said that he
    didn't see the incident or didn't know who it was." The deputy testified that Penton did
    not mention his roommates in any way.
    About one month later, after the girlfriend of one of the roommates was
    caught using one of Flagg's credit cards, a detective went to Penton's house to
    interview him further. Penton gave an oral statement that was then reduced to writing.
    In the written statement, which was read aloud at trial, Penton explained that he picked
    up Flagg with the intention of taking him to Flagg's son's house and to look at a job for
    Penton's tree business. Flagg instructed Penton to go to his son's house first and told
    him that they would look at the job afterwards. Penton called Mike and Billy, who
    planned on meeting him to look at the potential job, and told them that he needed to
    take Flagg to Flagg's son's house and to go shopping. During the trip, Mike and Billy
    kept calling to find out what was taking so long. Penton updated them and told them
    that Flagg also wanted to stop by the bank.
    -2-
    After Flagg's errands were complete, Penton called Mike and Billy and told
    them to meet him at Publix so that they could follow him to take a look at the potential
    job. Mike and Billy asked Penton how much money Flagg had gotten from the bank,
    and Penton told them that he did not know. Penton said that as he passed Publix
    "[Mike and Billy] called us," but his statement did not provide the contents of the
    conversation or indicate whether he had answered that call. Penton continued, saying,
    "I ran out of gas at the parts store and they went up to him and robbed him." Penton
    concluded the statement by saying that later that day Mike and Billy were high on meth
    and were mad at him because they did not get enough money.
    At trial, in addition to describing the sequence of events and Penton's
    statements, the detective testified that Penton orally told him that, based on his phone
    conversations with Mike and Billy, Penton assumed that they wanted to take Flagg's
    money as he had told them that he took Flagg to the bank, but "he didn't have direct
    knowledge at that point."
    The detective later arrested Penton and took another written statement.
    The statement was largely consistent with the previous written statement, with some
    additional details:
    I was living with Mikey Gaber and working [with] him
    and Jason[.] They and Billy kept wanting me to drive them
    to [steal] things they saw while working with me. The day
    the robbery happened Mikey and Billy [were] high on meth[.]
    Mr. Ray [Flagg] called me to do some work around his house
    [and] give him a ride to take his son some money[.] I told
    Mikey and Billy we could make some money doing some
    work around Ray's house[,] [but] first I had to take him to his
    son. While I was doing that they kept calling wanting to
    -3-
    know where I was and when I would be back[.] I talk[ed] to
    them several time[s] and [told] them we had to stop by the
    bank[.] They wanted to know how much [money] he got[.] I
    told them I don't know, he keep[s] [money] all the time for his
    son. They said something about robbing his old ass but I
    didn't think they were going to do it[.] On the way back to
    Ray they wanted me to stop somewhere so they [could] rob
    him[.] They [told] me to stop at Publix or [Circle K][.] I didn't
    but I ran out of gas passing the parts house[.] I tried to turn
    around and make [it] back to [the] [Circle K] but could not.
    While I was gone to get gas Mikey and Billy robbed him and
    left. When I got back Mr. Ray was by the road on the phone
    with the Sheriff [Department]. We gave our statement and
    left[.] I went and pick[ed] up my wife from work[.] When I
    got home Jason and Jamie told me Mikey and Billy had
    come by with a generator and [had] gone to sell it. Later that
    night Mikey and Billy came back mad because they only got
    $60–70. They told me Mikey drove and Billy robbed Mr.
    Ray.
    The detective testified that at the time of the second written statement
    Penton verbally told him that "before he went to Mr. Ray, what he called Mr. Ray, he
    knew then that they were going to try to rob him." When asked how that statement
    differed from Penton's February statement, the detective asserted that "this time he said
    that he was aware that they were trying to make him steal things . . . . He didn't take
    ownership of it the first time that he had knowledge that they were going to rob him
    before it started. The second statement he had knowledge before they ever left."
    We review the summary denial of a rule 3.850 motion de novo and "must
    accept the movant's factual allegations as true to the extent that they are not refuted by
    the record." Jennings v. State, 
    123 So. 3d 1101
    , 1121 (Fla. 2013). "[W]e must examine
    each claim to determine if it is legally sufficient, and, if so, whether the record refutes it."
    Allen v. State, 
    854 So. 2d 1255
    , 1258 (Fla. 2003). A defendant must establish each
    -4-
    claim by alleging specific facts. 
    Id. at 1259.
    "[U]nless the record shows conclusively
    that the appellant is entitled to no relief, the order shall be reversed and the cause
    remanded for an evidentiary hearing or other appropriate relief." Fla. R. App. P.
    9.141(b)(2)(D).
    For each asserted claim of ineffective assistance of trial counsel, a
    defendant must show (1) that counsel's performance was deficient and (2) that the
    deficient performance prejudiced him. Strickland v. Washington, 
    466 U.S. 668
    , 687
    (1984). The defendant must overcome a "strong presumption that counsel's conduct
    falls within the wide range of reasonable professional assistance." 
    Id. at 689.
    Moreover, "[t]he defendant must show that there is a reasonable probability that, but for
    counsel's unprofessional errors, the result of the proceeding would have been different.
    A reasonable probability is a probability sufficient to undermine confidence in the
    outcome." 
    Id. at 694.
    In his first claim for postconviction relief, Penton asserted that counsel
    provided ineffective assistance by advising him not to testify. Penton stated that his
    testimony was necessary to refute the detective's testimony that he had prior knowledge
    of the robbery. Penton averred that the detective mischaracterized his statements as to
    his knowledge of a robbery plan and that he never made that statement. Regarding
    deficient performance, Penton alleged that counsel advised him not to testify because
    the State would be able to inquire into "every detail" of Penton's criminal history on
    cross-examination, including Penton's prior convictions for drug possession and
    burglary, his probation violations, his prior DWI, and his drug and alcohol counseling
    -5-
    history. Penton claimed that he told counsel during the detective's testimony that the
    detective was misrepresenting his statements and that he needed to testify to clarify his
    story, especially in light of defense counsel's decision to not cross-examine the
    detective. According to Penton, counsel told him that if he testified his past "would kill
    [him]." As a result, Penton stated that he acquiesced to counsel's advice and agreed to
    waive his right to testify.
    Penton's allegation that counsel told him that the State would be able to
    impeach him with "every detail" of his convictions was sufficient to show deficient
    performance. See Tyler v. State, 
    793 So. 2d 137
    , 141 (Fla. 2d DCA 2001) ("Where
    counsel incorrectly informs a defendant regarding the use of prior convictions as
    impeachment, specifically, that upon testifying the jury will hear the specific nature of
    the prior convictions, and the defendant shows that because of the misinformation he
    did not testify, he has satisfied the deficient performance prong of an ineffective
    assistance of counsel claim." (emphasis added)); Everhart v. State, 
    773 So. 2d 78
    , 79–
    80 (Fla. 2d DCA 2000) (holding that the defendant sufficiently alleged deficient
    performance when he asserted that counsel informed him that the jury would be told of
    "the specific nature of his prior convictions" if he testified).
    As to prejudice, Penton alleged that he would have testified about several
    points that would have helped his case, including that Flagg was both a friend and a
    good client of his tree business; that he was negotiating a $1000 contract with Flagg
    and therefore had an interest in maintaining a good relationship with him; that prior to
    the trip Flagg did not mention going to the bank so Penton would not have had a basis
    -6-
    to plan a robbery; and that he knew that after going to the bank Flagg had placed
    several hundred dollars in his pants pocket rather than his wallet, something that the
    robbers were apparently unaware of and something that he presumably would have
    relayed to the robbers if he were involved. Penton further alleged that he would have
    testified that he never told the detective that he knew before the trip that Mike and Billy
    planned to rob Flagg.
    The postconviction court denied relief as to this claim, citing to Penton's
    statements to law enforcement and the detective's trial testimony. The court concluded
    that Penton could not establish prejudice because he had claimed that he did not know
    about the robbery beforehand and then stated that he did not take Mike and Billy's
    statement about robbing the victim seriously. The court added that Penton's statements
    and his proposed trial testimony were contradictory and, taken together with the
    sequence of events as described in Penton's statements, his trial testimony would not
    be believed by a jury.
    We cannot agree with the postconviction court's analysis. Penton's first
    statement indicated he did not know who committed the robbery. In a later statement,
    Penton acknowledged receiving a call while he was driving with Flagg, during which
    Mike and Billy "said something about robbing his old ass" but he did not think they
    would do so. He explained in his motion why he did not believe Mike and Billy were
    serious, saying that he had "actually laughed at that" and "attributed [their statement] to
    their state of inebriation." Further, he would have pointed out the inaccuracies,
    assumptions, and inferences in the detective's trial testimony and would have testified
    -7-
    that he never said that he knew in advance that Flagg would be robbed or that he had
    been involved in planning the robbery. While it is possible that a jury may disbelieve
    Penton, based on the record before us we cannot agree that Penton's claim was refuted
    by the record. See 
    Tyler, 793 So. 2d at 142
    (concluding that the defendant sufficiently
    demonstrated prejudice when he alleged that he would have refuted a witness' claim
    that he had confessed to the crime and would have testified that he was not involved in
    the crime and was instead an unintended victim); 
    Everhart, 773 So. 2d at 79
    (holding
    that the defendant sufficiently demonstrated prejudice by alleging that his testimony
    would have refuted a police officer's testimony and explained that the officer
    mischaracterized his statements, which would have turned the resolution of his defense
    into a credibility determination).
    In his third claim for relief, Penton asserted that counsel provided
    ineffective assistance by failing to interview Mike and Billy and by failing to call them to
    testify at trial. Specifically, Penton alleged,
    as he had stated to counsel on several occasions, [that he]
    had spoken to each witness prior to his arrest[,] knew [their]
    whereabouts, and had been assured, and was confident in
    their assurances, that they would tell the jury the truth in that
    [he] had no part in the participation, planning[,] or execution
    of the robbery and knew nothing of it until later that evening.
    The postconviction court rejected this claim, stating that it was
    unreasonable to believe that the codefendants, Mike and Billy, would have implicated
    themselves in committing an armed robbery and subjected themselves to conviction as
    codefendants. The court added that even if they had so testified, it was unlikely that the
    -8-
    jury would have believed them in light of Penton's statements to law enforcement.
    As with claim one, we reverse because Penton's claim is facially sufficient
    and the record does not conclusively refute the claim. First, while Mike and Billy might
    have refused to testify favorably for Penton, that assumption is simply not conclusively
    established based on the limited record that has been provided to us. See Neal v.
    State, 
    854 So. 2d 666
    , 669–70 (Fla. 2d DCA 2003) (concluding that a defendant's
    allegation that a co-defendant was willing to provide exculpatory testimony on the
    defendant's behalf, and that the co-defendant would have acknowledged facts
    implicating the co-defendant, presented a facially sufficient claim of ineffective
    assistance for failure to call a witness). Second, had Mike and Billy so testified, we
    cannot agree that no reasonable jury would have accepted such testimony. Our
    conclusion is buttressed by our determination that Penton's first claim was not
    conclusively refuted by the record.
    For these reasons, we reverse and remand for further proceedings on
    claims one and three.
    Affirmed in part, reversed in part, and remanded for further proceedings.
    CRENSHAW and LUCAS, JJ., concur.
    -9-
    

Document Info

Docket Number: 17-3765

Filed Date: 12/28/2018

Precedential Status: Precedential

Modified Date: 12/28/2018