JULIO S. CENDEJAS v. STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JULIO S. CENDEJAS, )
)
Appellant, )
)
v. ) Case No. 2D17-3957
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed July 13, 2018.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for Polk
County; Neil A. Roddenbery, Judge.
Julio S. Cendejas, pro se.
KHOUZAM, Judge.
Julio Cendejas challenges the order summarily denying his postconviction
motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the
denials of claims two, three, and four and remand for further proceedings. We affirm
the denial of claim one without comment.
Mr. Cendejas was charged with ten counts of trafficking in various
narcotics; possession of a structure used for trafficking, sale, or manufacture of a
controlled substance; possession of drug paraphernalia; armed trafficking in
amphetamine; and possession of a firearm by a convicted felon. He entered a
negotiated guilty plea to counts two, three, five, six, eight, and nine, and the State
entered a nolle prosequi on counts one, four, seven, and ten. On counts two, five, and
eight, Mr. Cendejas was sentenced to concurrent fifteen-year prison terms, to be
followed by five years' probation on each count. He also received mandatory minimum
terms of ten years and three years on count eight pursuant to sections 775.087(2) and
893.135(1), Florida Statutes (2015). He was sentenced to time served on counts three,
six, and nine. Mr. Cendejas filed a motion for postconviction relief, in which he raised
three claims of ineffective assistance of trial counsel and one claim of cumulative error.
We review the order summarily denying Mr. Cendejas' motion de novo.
Sanchez v. State, 210 So. 3d 252, 254 (Fla. 2d DCA 2017). We review a postconviction
court's summary denial of postconviction claims "to determine whether the claims are
legally sufficient and whether they are conclusively refuted by the record." Watson v.
State, 34 So. 3d 806, 808 (Fla. 2d DCA 2010) (quoting Griggs v. State, 995 So. 2d 994,
995 (Fla. 1st DCA 2008)). "When a postconviction court summarily denies a
defendant's motion without an evidentiary hearing, an appellate court 'must accept a
defendant's factual allegations as true to the extent they are not refuted by the record.' "
Balmori v. State, 985 So. 2d 646, 649 (Fla. 2d DCA 2008) (quoting Floyd v. State, 808
So. 2d 175, 182 (Fla. 2002)).
To plead a claim of ineffective assistance of counsel, Mr. Cendejas was
required to allege facts that show that counsel's performance was deficient and that
counsel's deficient performance prejudiced him. Strickland v. Washington, 466 U.S.
668, 687 (1984). To satisfy the prejudice prong in the context of a guilty plea, Mr.
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Cendejas had to allege that but for counsel's ineffectiveness there was a reasonable
probability that he would have insisted on going to trial. See Campbell v. State, 139 So.
3d 490, 494 (Fla. 2d DCA 2014) (citing Cousino v. State, 770 So. 2d 1258, 1260 (Fla.
4th DCA 2000)).
In claim two, Mr. Cendejas argued that his plea was involuntary "due to
counsel's patently deficient failure to properly inform him in advance that the agreed
upon plea offer ha[d] been enhanced to a much harsher sentence." More specifically,
he alleged that while he and trial counsel had discussed his entering a guilty plea and
receiving fifteen-year sentences for counts two, five, and eight, he was not advised of
the probationary terms or mandatory minimum sentences. He claimed that had he
known he would receive mandatory minimum and probationary terms, he would not
have entered the plea.
Counsel's misadvice regarding the length of a sentence may constitute a
basis for postconviction relief. State v. Leroux, 689 So. 2d 235, 236 (Fla. 1996); Cherry
v. State, 837 So. 2d 597, 598 (Fla. 2d DCA 2003) ("A defendant may seek to withdraw
his plea on the ground that it was involuntary due to reliance on counsel's misadvice or
misrepresentation regarding the length of a sentence or the amount of time the
defendant would serve."); Townsend v. State, 927 So. 2d 1064, 1065 (Fla. 4th DCA
2006) ("A mandatory minimum sentence is a direct consequence of a defendant's plea,
and the failure to advise a defendant of this consequence renders a plea involuntary."
(quoting Thornton v. State, 747 So. 2d 439, 441 (Fla. 4th DCA 1999))). Because Mr.
Cendejas filed a facially sufficient claim, the only issue before us is whether the claim
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was conclusively refuted by the record.
Here, the postconviction court relied only on the signed plea form to
summarily deny Mr. Cendejas' claim, finding that the mandatory minimum and
probationary terms were "clearly contained within the written plea agreement, signed
by" Mr. Cendejas. This court has held, however, that "the existence of a signed, written
plea agreement, by itself, is insufficient to refute a defendant's claim" that his plea was
entered involuntarily. Rivera v. State, 746 So. 2d 542, 542 (Fla. 2d DCA 1999) (citing
McCallum v. State, 591 So. 2d 318, 319 (Fla. 4th DCA 1991)); see also Cox v. State,
974 So. 2d 474, 475 (Fla. 2d DCA 2008) (reversing and remanding summary denial of
postconviction claim that plea was involuntary because "a signed, written plea
agreement, standing alone, is insufficient to refute a defendant's claim that he
misunderstood the terms of the plea agreement or that no other promises were made to
induce the plea").
"[A] waiver of rights form can only refute a defendant's claim of involuntary
plea if the trial court conducted a proper plea colloquy and determined that the
defendant understood the form." Campbell, 139 So. 3d at 494 (holding that the waiver
of rights form signed by the defendant was insufficient to conclusively refute his claims
that his plea was involuntary because the transcript of plea hearing reflected that the
trial court failed to conduct proper inquiry); see also Townsend, 927 So. 2d at 1066
(rejecting the State's argument that the appellant's claim was conclusively refuted by the
signed, written plea form containing the three-year mandatory minimum sentence
because the record reflected that the "trial court made no effort to determine if the
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defendant could read the form, had the requisite level of education or mental capacity to
understand the form, or whether the form had been read or explained to him"). Without
a transcript of the plea colloquy, we cannot know whether the plea was voluntarily
entered. Thus, because the postconviction court attached only the signed plea
agreement, claim two is not conclusively refuted by the record. Accordingly, we reverse
the denial of claim two and remand for the postconviction court to either attach portions
of the record that conclusively refute the claim or to conduct an evidentiary hearing.
Mr. Cendejas argued in claim three that trial counsel was ineffective for
failing to object to the imposition of the ten-year mandatory minimum sentence imposed
on count eight for his possession of a firearm, see § 775.087(2)(a)(1)(q), and for failing
to reserve his right to appeal issues that he would be entitled to raise in the appellate
court. He further claimed that he entered into plea negotiations "with the reasonable
belief that his right to appeal any and all dispositive issues was to be preserved."
In denying the claim, the postconviction court again relied solely on the
plea agreement, specifically pointing to the provision that stated Mr. Cendejas
understood that by entering a plea without reserving the right to appeal, he was waiving
his right to appeal all matters. The court further found that to the extent Mr. Cendejas
was arguing that trial counsel should have challenged the factual basis for the charges
to which he pleaded, Mr. Cendejas could not "accept the benefit of the plea wherein the
State nolle prossed certain counts in exchange for the Defendant's plea to other counts,
to then attempt to challenge the factual matters for which he stipulated by entering into
the plea in the first place."
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Mr. Cendejas' claim of ineffectiveness is essentially another claim that his
plea was involuntary due to trial counsel's deficient performance. See, e.g., Larson v.
State, 43 Fla. L. Weekly D865 (Fla. 2d DCA Apr. 20, 2018) ("[A]lthough the claim may
be couched in terms of ineffective assistance of counsel, the issue is truly whether the
plea was entered involuntarily."). Although we conclude that, for the same reasons
discussed in claim two, claim three is not conclusively refuted by the record, the claim is
facially insufficient because Mr. Cendejas has not alleged that but for trial counsel's
deficient performance he would have insisted on going to trial. See Campbell, 139 So.
3d at 494. Because his claim is facially insufficient and not conclusively refuted by the
record, we reverse and remand so that the postconviction court may strike the claim
and provide Mr. Cendejas sixty days to amend it. See Fla. R. Crim. P. 3.850(f).
In claim four, Mr. Cendejas alleged a claim of cumulative error. Because
we must reverse claims two and three, we also reverse the postconviction court's denial
of this claim so that it may reconsider the claim after it has reconsidered claims two and
three. See Flint v. State, 84 So. 3d 469, 471 (Fla. 2d DCA 2012).
Affirmed in part, reversed in part, and remanded with instructions.
CASANUEVA and MORRIS, JJ., Concur.
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