Third District Court of Appeal
State of Florida
Opinion filed November 23, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-198
Lower Tribunal No. F08-41705
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Tommie McClenney, Jr.,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Lourdes
Simon, Judge.
Tommy McClenney, Jr., in proper person.
Ashley Moody, Attorney General, and Sandra Lipman, Assistant
Attorney General, for appellee.
Before EMAS, SCALES and LOBREE, JJ.
EMAS, J.
Tommy McClenney, Jr., filed a motion for postconviction relief in the
trial court, asserting six claims of ineffective assistance of counsel. The trial
court summarily denied five of the six claims, properly issued a nonfinal,
nonappealable order on those claims (see Florida Rule of Criminal
Procedure 3.850(f)(4) 1) and scheduled an evidentiary hearing on the
remaining claim. Following that hearing, the trial court issued a final,
appealable order denying all six claims. This appeal follows.
We find no merit in any of McClenney’s claims, affirm the trial court’s
order in its entirety, and write to address McClenney’s claim that trial counsel
provided ineffective assistance in advising McClenney against testifying and
1
Fla. R. Crim. P. 3.850(f)(4) provides:
If the motion sufficiently states 1 or more claims for relief but the
files and records in the case conclusively show that the
defendant is not entitled to relief as to 1 or more claims, the
claims that are conclusively refuted shall be summarily denied
on the merits without a hearing. A copy of that portion of the files
and records in the case that conclusively shows that the
defendant is not entitled to relief as to 1 or more claims shall be
attached to the order summarily denying these claims. The files
and records in the case are the documents and exhibits
previously filed in the case and those portions of the other
proceedings in the case that can be transcribed. An order that
does not resolve all the claims is a nonfinal, nonappealable
order, which may be reviewed when a final, appealable order is
entered.
2
that, as a result, McClenney’s decision not to testify was not a knowing and
voluntary one.
We first note that the Sixth Amendment,2 which guarantees each
criminal defendant “the Assistance of Counsel for his defence,” imposes a
duty on defense counsel to advise the client, and this duty extends to
providing advice regarding the client’s decision to testify or not testify at trial.
Indeed, at the evidentiary hearing held on McClenney’s postconviction claim,
trial counsel testified that he had a lengthy discussion with McClenney about
whether he should testify. Trial counsel also testified to the strategic reasons
he had for (ultimately) recommending to McClenney that he not testify at trial.
The trial court found trial counsel’s testimony credible and objectively
reasonable, and we find no error in these determinations. See Bradley v.
State,
33 So. 3d 664, 671 (Fla. 2010) (holding that appellate court defers to
trial court’s factual findings supported by competent substantial evidence
and: “When examining counsel’s performance, an objective standard of
reasonableness applies, and great deference is given to counsel’s
performance. The defendant bears the burden to ‘overcome the
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.’ This court has made clear that ‘strategic
2
U.S. Const. amend. VI.
3
decisions do not constitute ineffective assistance of counsel.’ There is a
strong presumption that trial counsel’s performance was not ineffective.”)
(quoting Strickland v. Washington,
466 U.S. 668, 687 (1984) (additional
quotations omitted)).
Further, the transcript of the trial reveals the trial court conducted a
colloquy with McClenney regarding his decision not to testify in his own
defense. See, e.g., Gonzalez v. State,
990 So. 2d 1017, 1031-32 (Fla. 2008)
(“Although this Court has held that ‘a trial court does not have an affirmative
duty to make a record inquiry concerning a defendant's waiver of the right to
testify,’ this Court has stated that . . . ‘it would be advisable for the trial court
. . . to make a record inquiry as to whether the defendant understands he
has a right to testify. . . .’” (quoting Torres-Arboledo v. State,
524 So. 2d 403,
411 n.2 (Fla. 1988))).
The trial court properly colloquied McClenney to ensure it was his
decision not to testify at his trial, and that his decision was knowing and
voluntary, made after an opportunity to consult with his attorney. Here is an
excerpt of the colloquy undertaken by the trial court after the State had
formally rested its case and prior to the defense formally resting its case:
THE COURT: Mr. McClenney, you’re welcome to sit. You’re
welcome to sit, and he was sworn yesterday?
DEFENSE COUNSEL: Yes, he was.
4
THE COURT: Okay. You have an absolute Constitutional right
that’s guaranteed by our Federal and also our Florida
Constitution to remain silent and not incriminate yourself. If you
do exercise your right—your right not to testify in your trial, then
I would instruct then I would instruct the jury, if your -- if your
attorneys request.
***
And my understanding from your lawyers is that is what you
would like to do and that you've had the opportunity to speak with
them about it. Now, you also have an absolute right to be a
witness in your case and to take the stand and to testify in this
case. That is another right that you have that is also guaranteed
by the Constitutions; and if you were to testify in the case, I would
instruct the jury that your testimony should be considered the
same as every other witness in the case. You don't get special
treatment. You are not treated worse or better than any other
witness in the case. If you were to testify, I do know, just by the
virtue of the fact that there was a charge for carrying a firearm by
a career criminal, that you must have felony convictions. I don't
know how many; but the jury would learn if you were to testify. If
you answer questions truthfully, they would only learn two things.
The prosecutor could ask you have you ever been convicted of
a felony, and your answer would be yes; and if so, how many
times, and I would ask the lawyers to confer with each other to
make sure it's accurate so that you're well informed how many
times. And if your answer is truthful, they can't go any further into
that.[3]
3
We include this aspect of the colloquy for a separate but significant reason:
Trial courts often encounter postconviction motions asserting ineffective
assistance of counsel based on the allegation that counsel affirmatively
misadvised the defendant that, should he testify at trial, the jury would be
told the specific details of the prior crime(s) for which he was previously
convicted. Absent record evidence to rebut such an assertion in a
postconviction motion, the trial court would generally be required to hold an
evidentiary hearing to make factual and credibility-based determinations.
See, e.g., Rodriguez v. State,
909 So. 2d 955 (Fla. 3d DCA 2005) (reversing
summary denial of motion for postconviction relief and remanding for
evidentiary hearing on defendant’s claim that attorney affirmatively
5
So those are the only two questions that they can ask you about
that, so long as you are accurate and truthful about how many
times. So my first question for you is, have you had the
opportunity to sit with your lawyers and go over what it is that I've
just explained to you?
DEFENDANT: Yes.
THE COURT: Okay. And you feel fully informed on this—this
decision as to whether or not you wish to be a witness in your
own case?
DEFENSE COUNSEL: Are you fully informed about—
DEFENDANT: Yes, yes.
THE COURT: Okay. Are there any other questions that you may
misadvised defendant that if he testified the State would be able to place
before the jury the details of his prior criminal history); Joseph v. State,
214
So. 3d 741 (Fla. 5th DCA 2017) (reversing summary denial of postconviction
claim and holding that, in the absence of records in the case to conclusively
show defendant is not entitled to relief on his claim that counsel incorrectly
advised him that the jury would learn the specific nature of his prior
convictions should he testify, the trial court was required to hold an
evidentiary hearing).
However, by engaging in a colloquy such as the one conducted in the instant
case, a trial court can help ensure a defendant is adequately informed about
the consequences of his decision to testify (i.e., the extent to which he can
be impeached with his prior convictions) while also eliminating this as a
potential issue in any future postconviction claim, should the defendant be
convicted. Trial court judges should be encouraged to make such a colloquy
a standard part of their trial procedure. In fact, a trial court might also do well
to discuss with the State and defense, prior to the colloquy, the precise
number of prior convictions that may be used to impeach the defendant
should he decide to testify in his own defense. In this way, the parties can
agree on (or the court can determine) the exact number of impeachable
convictions, and that information can be shared with the defendant before
deciding whether to testify in his own defense.
6
have about whether you are going to testify or not testify, any
other issues or concerns or questions that you may have about
that issue?
DEFENDANT: No, Judge.
THE COURT: ...And your decision in this case is what?
DEFENDANT: Not to testify.
THE COURT: Okay. And did your lawyers or anyone promise
you any—anything, coerce you, threaten you, frighten you, scare
you, you know, in any way, do or say anything that—that would
weigh on your independent will to make that decision?
DEFENDANT: No.
THE COURT: So this is your decision that you’re making?
DEFENDANT: Yes.
We have held, in the analogous context of a plea colloquy, that a
defendant is bound by the answers he gives under oath when responding to
the court’s questions. Rodriguez v. State,
223 So. 3d 1095 (Fla. 3d DCA
2017); Henry v. State,
920 So. 2d 1245, 1246 (Fla. 5th DCA 2006) (“This
motion presents the all-too-common occurrence where defendants, in an
attempt to invalidate their pleas, contend they committed perjury when they
sought to have their pleas accepted. Defendants are bound by the
statements made by them under oath . . . ”); Iacono v. State,
930 So. 2d 829,
831-32 (Fla. 4th DCA 2006) (holding that defendants “are bound by their
sworn answers” during a plea colloquy). Indeed, the underlying purpose for
7
the mid-trial colloquy between a defendant and the court regarding a
defendant’s decision to testify or not testify is quite similar to the reasons for
engaging in a plea colloquy—to ensure that the defendant has had sufficient
time to discuss his decision with counsel; that he understands the rights he
has and the rights he is relinquishing or exercising; that his decision is being
made knowingly, freely and voluntarily; and that the defendant is ultimately
the one making this decision. It is well established that a defendant has the
ultimate authority to make certain fundamental decisions in his or her case—
“notably, whether to plead guilty, waive a jury, testify in his or her own behalf,
or take an appeal.” McCoy v. Louisiana, __ U.S. __,
138 S.Ct. 1500, 1508
(2018) (citing Jones v. Barnes,
463 U.S. 745, 751 (1983)). 4 See also Puglisi
v. State,
112 So. 3d 1196 (Fla. 2013).
4
Though not relevant to our decision, we note that the United States
Supreme Court in McCoy added one more item to the category of decisions
reserved to the client:
Autonomy to decide that the objective of the defense is to assert
innocence belongs in this. . . category. Just as a defendant may
steadfastly refuse to plead guilty in the face of overwhelming
evidence against her, or reject the assistance of legal counsel
despite the defendant's own inexperience and lack of
professional qualifications, so may she insist on maintaining her
innocence at the guilt phase of a capital trial. These are not
strategic choices about how best to achieve a client's objectives;
they are choices about what the client's objectives in fact are.
McCoy v. Louisiana, __ U.S. __,
138 S.Ct. 1500, 1508 (2018).
8
McClenney’s claim that his decision not to testify was not a knowing
and voluntary one is belied by his own answers to the trial court’s questions.
See Reynolds v. State,
99 So. 3d 459, 484 (Fla. 2012) (finding similar
colloquy adequate to establish a knowing, voluntary and intelligent waiver of
defendant’s right to testify, and observing that the colloquy for accepting a
defendant’s decision to waive his right to testify need not meet the more
demanding standards of a “Faretta-type inquiry” required when waiving his
right to counsel and seeking to exercise his right to self-representation).
We affirm without further discussion the trial court’s order as to the
remaining claims raised by McClenney. See Pardo v. State,
596 So. 2d 665,
666 (Fla. 1992) (observing that “in the absence of interdistrict conflict, district
court decisions bind all Florida trial courts”); Lynch v. State,
254 So. 3d 312,
323 (Fla. 2018) (“[U]nder Strickland [v. Washington,
466 U.S. 668 (1984)],
claims of ineffective assistance of counsel are assessed under the law in
effect at the time of trial”); Lebron v. State,
135 So. 3d 1040, 1054 (Fla. 2014)
(“This Court has ‘consistently held that trial counsel cannot be held
ineffective for failing to anticipate changes in the law . . .’” (quoting Cherry v.
State,
781 So. 2d 1040, 1053 (Fla. 2000))); Hitchcock v. State,
991 So. 2d
9
337, 361 (Fla. 2008) (“Counsel cannot be deemed ineffective for failing to
make a meritless objection.”)
Affirmed.
10
