DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STEPHEN OLENCHAK,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-3007
[November 18, 2020]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Ernest A. Kollra,
Judge; L.T. Case No. 12003380CF10A.
Stephen Olenchak, Arcadia, pro se.
Ashley Moody, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.
MAY, J.
The defendant belatedly 1 appeals an amended order that summarily
denied his amended motion for post-conviction relief based on a State
response. He raised eleven grounds in his motion but has abandoned
three of them. We agree with him that the trial court erred in summarily
denying grounds one, two, nine and the grounds that claim cumulative
error, grounds four and eleven. We reverse in part and remand for an
evidentiary hearing or record attachments refuting those grounds. We
affirm on all other grounds.
The State charged the defendant with two counts of sexual battery. The
information alleged penile penetration of the victim’s vagina (count one),
and digital penetration (count two). The jury found him not guilty of count
one, but guilty of count two. The conviction on count two was later vacated
due to juror misconduct.
1 We granted the defendant’s petition for belated appeal in Case No. 4D19-2362.
The State subsequently charged the defendant with one count of sexual
battery and later added the element that the victim was physically helpless
to resist. His defense was that the victim initiated the sexual contact when
she placed his hand on her crotch area while she was in a dreamlike state.
The jury convicted him of sexual battery, a lesser included offense. The
court sentenced him to 120 months in prison followed by two years of
community control and three years of sexual offender probation. On
appeal in that case, the defendant argued the trial court erred in: (1)
overruling his objection to the standard jury instruction on sexual battery
and denying his request for a special instruction; (2) denying his motion
to admit evidence that the victim made similar allegations against another
person 12 years earlier; and (3) ordering as a condition of probation that
he have no unsupervised contact with anyone under 18 years of age. We
affirmed without prejudice to his filing a rule 3.850 motion. Olenchak v.
State,
183 So. 3d 1227, 1229-30 (Fla. 4th DCA 2016).
In his amended rule 3.850 motion, he raised eleven grounds. The court
summarily denied his motion, incorporating the State’s response. From
that order, the defendant now appeals.
The defendant first argues ineffective assistance of counsel for failure
to object to the prosecutor’s misstatement of law during closing argument.
At trial, defense counsel stated: “They have to prove to you beyond and to
the exclusion of every reasonable doubt that he intentionally, intentionally
took his hand and put it inside her vagina.” That statement prompted the
prosecutor to say in rebuttal:
Ladies and gentlemen, you were just told that the State has
not proven its case. You were told that the State had to prove
that the defendant intentionally committed this act. I would
say to you that that is a deliberate misstatement of the law.
The Judge read you the law, the elements of sexual battery
and nowhere in that instruction did he tell you that the State
had to prove intent. Intent is not an element of this crime.
Don’t hold me to that burden that the defense attorney had
just laid out for me. He has increased my burden by requiring
me to prove an element of a crime that I don’t have to prove to
prove my case.
Defense counsel did not object.
In Olenchak, we said:
2
[A]lthough sexual battery is not a specific intent crime, it is a
general intent crime. Thus, the state’s rebuttal argument that
“[i]ntent is not an element of this crime” was a misstatement
of the law. For whatever reason, the defendant’s trial counsel
did not object to this misstatement of the law.
We cannot discern from the face of the record if the
defendant’s trial counsel had a reason not to object or simply
was ineffective. Thus, our affirmance is without prejudice to
the defendant filing a Florida Rule of Criminal Procedure
3.850 motion based on ineffective assistance of counsel.
Id. at 1229–30.
The State noted in its response to the defendant’s amended post-
conviction motion that the court verbally gave the standard jury
instructions and provided each juror with a paper copy of them. The State
also argued that the court advised the jurors to remember that what the
lawyers say is not evidence nor instruction on the law.
The State now argues the prosecutor’s comment was an isolated remark
that was not a feature of the trial or closing argument. It relies on Conner
v. State,
910 So. 2d 313, 317 (Fla. 5th DCA 2005), which held that a
prosecutor’s comment on the defendant’s failure to call two witnesses
constituted harmless error where, after the comment, the court gave jury
instructions on the prosecution’s burden of proof and said that the defense
does not have to present evidence or prove anything.
Closer on point are two of our decisions: Young v. State,
137 So. 3d
532 (Fla. 4th DCA 2014) and Owens v. State,
261 So. 3d 585 (Fla. 4th DCA
2018). We find them both helpful and support a reversal here.
In Young, the prosecutor argued that if a photo lineup was inherently
suggestive, the court would have suppressed it, suggesting the court had
already ruled on the issue when it had not.
137 So. 3d at 535. We noted
the trial court had the ability to correct the misstatement of law but did
not do so.
Id. Instead, the court told the jury that the judge had the role
of instructing on the law, not the attorneys.
Id. The court’s error in failing
to correct the misstatement was not harmless.
Id. We reversed and
remanded for a new trial.
Id. Similarly, in Owens we held a prosecutor’s
3
erroneous statement on a contested issue was not harmless and
warranted a new trial. 261 So. 3d at 589. 2
In assessing prejudice under Strickland, the question is not
whether a court can be certain counsel’s performance had no
effect on the outcome or whether it is possible a reasonable
doubt might have been established if counsel acted differently.
See Wong v. Belmontes,
558 U.S. 15, 27,
130 S.Ct. 383, 390,
175 L.Ed.2d 328 (2009) (per curiam); Strickland, 466 U.S., at
693,
104 S.Ct. 2052. Instead, Strickland asks whether it is
“reasonably likely” the result would have been different. Id.,
at 696,
104 S.Ct. 2052. This does not require a showing that
counsel’s actions “more likely than not altered the outcome,”
but the difference between Strickland’s prejudice standard
and a more-probable-than-not standard is slight and matters
“only in the rarest case.” Id., at 693, 697,
104 S.Ct. 2052.
The likelihood of a different result must be substantial, not
just conceivable. Id. at 693,
104 S.Ct. 2052.
Harrington v. Richter,
562 U.S. 86, 111-12 (2011).
Here, the prosecutor erroneously stated that intent was not an element
of the crime. However, it was an element, and the issue of intent was a
critical issue for the defense. The defense expert theorized the contact was
the result of a “hypnagogic experience” in which the victim was not fully
conscious or completely asleep when she placed the defendant’s hand on
her crotch. Thus, the defense presented that the defendant lacked the
requisite intent to commit the crime.
The defendant also suggests that because the jurors were instructed on
the law prior to closing arguments, the prosecutor’s erroneous comment
was the last thing the jurors heard before deliberating.
We agree with the defendant that he has demonstrated a facially
sufficient claim of a deviation from the standard of performance on this
ground and resulting prejudice. The trial court erred in summarily
denying this ground without an evidentiary hearing or attachment of
records to refute the defendant’s claim.
2 We are aware that the cases relied upon involved a direct appeal from a
conviction where the harmless error analysis was employed. That is significantly
different from this case where the standard is set by Strickland v. Washington,
466 U.S. 668 (1984).
4
In related ground two, the defendant argued that defense counsel had
an erroneous understanding of the law; i.e., that sexual battery is a
specific intent crime. Because defense counsel persisted in this erroneous
understanding in preparing and presenting his defense, he rendered
ineffective assistance of counsel. We noted as much in the direct appeal.
Olenchak, 183 So. 3d at 1229.
In ground four, the defendant argued that the cumulative effect of the
previous deficiencies deprived him of effective assistance of trial counsel.
We agree to the extent that the trial court erred in summarily denying this
ground.
In ground nine, the defendant alleged ineffective assistance of counsel
for erroneously informing him that he was prohibited from introducing
testimony from the first trial in which he was charged with penile
penetration. The evidence included testimony and a report from the
Sexual Assault Treatment Center (SATC) that the victim was a virgin with
hymen intact and no indicia of sexual contact or injury. After the first
trial, the jury found the defendant not guilty on the count charging
penetration.
The State responded that defense counsel and the prosecution agreed
at the start of the second trial to exclude evidence about the victim
previously accusing the defendant of penile penetration in the first case.
The prosecution redacted portions of a recorded phone call with a
reference to the word “penis,” and excluded evidence that the victim’s
mother saw appellant washing his penis in the sink.
The State argued this claim involved trial strategy by defense counsel.
However, such claims ordinarily must be considered and resolved by
evidentiary hearing. See Gordon v. State,
181 So. 3d 1193, 1194 (Fla. 4th
DCA 2015) (citing Rector v. State,
668 So. 2d 1104, 1105 (Fla. 4th DCA
1996)). The trial court erred in summarily denying this ground.
In ground eleven, the defendant claimed the cumulative effect of the
previous claims. Since we agree that the summary denial of the individual
claims identified here warrants reversal, denial of the ground on their
cumulative effect does also.
For the foregoing reasons, the trial court erred in summarily denying
grounds one, two, and nine, as well as four and eleven for their cumulative
effect. We therefore reverse and remand for an evidentiary hearing on
these grounds or attachment of records refuting them.
5
Affirmed in part and reversed and remanded in part.
FORST and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
6
