Arthur Bernard Sorey v. State of Florida , 252 So. 3d 853 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-901
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ARTHUR BERNARD SOREY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Escambia County.
W. Joel Boles, Judge.
August 10, 2018
PER CURIAM.
Appellant Arthur Bernard Sorey challenges his convictions
and sentences for possession with intent to sell a controlled
substance within 1,000 feet of a place of worship and possession of
drug paraphernalia. The first two issues raised on appeal are
affirmed without further comment. We write to address the third
issue in which Sorey alleges trial counsel was ineffective on the
face of the record for failing to move for judgment of acquittal,
where the State failed to prove the offense was committed within
1,000 feet of a church which regularly conducted religious services.
Section 893.13(1)(e), Florida Statutes (2016), provides that it
is unlawful for any person to “sell, manufacture, or deliver, or
possess with intent to sell, manufacture or deliver, a controlled
substance not authorized by law in, on, or within 1,000 feet of a
physical place for worship at which a church or religious
organization regularly conducts religious services. . . .” As this
Court noted in Fletcher v. State, 168 So. 3d 330, 331 (Fla. 1st DCA
2015), the statute in question has frequently been construed to
require the State to prove that regular religious services were
being held at the time of the offense. The instant case is almost
identical to Fletcher with one important distinction. Unlike
Fletcher trial counsel for Sorey failed to argue, as a basis for
judgment of acquittal, that the State failed to prove the offense
occurred within 1,000 feet of a place of regular worship.
Sorey now raises the issue on direct appeal as an ineffective
assistance of counsel claim. The State argues this is not the proper
vehicle for the challenge, and that Sorey is required to file a
postconviction motion pursuant to Florida Rule of Criminal
Procedure 3.850. We recognize that “[a]s a general rule, claims
asserting ineffective assistance of defense counsel are not
cognizable on direct appeal ‘because the trial court never had the
opportunity to consider the issue below, and the issue often
involves collateral questions of fact that cannot be determined by
the trial record,’ alone.” Fox v. State, 104 So. 3d 371, 371-72 (Fla.
1st DCA 2012) (quoting Loren v. State, 601 So. 2d 271, 272 (Fla.
1st DCA 1992)). “The ‘rare’ exception to this general rule exists
where ‘(1) the ineffectiveness is apparent on the face of the record,
and (2) it would be ‘a waste of judicial resources to require the trial
court to address the issue.’” Id. at 372 (quoting Ellerbee v. State,
87 So. 3d 730, 739 (Fla. 2012)).
Sorey relies on Monroe v. State, 191 So. 3d 395, 402 (Fla.
2016), in which the Florida Supreme Court held, “the failure of
[defendant’s] trial counsel to preserve the sufficiency of the
evidence issue for appellate review constitute[d] ineffective
assistance of counsel that is apparent from the face of this record.”
However, Monroe is limited to its facts and constitutes a rare
example of ineffective assistance of counsel that should have been
remedied on direct appeal. Id. at 404. In Monroe, the Florida
Supreme Court found the failure of trial counsel to move for
judgment of acquittal during or after trial was “patently
unreasonable.” Id. at 403. Furthermore, the court detailed, “[w]e
can think of no plausible justification for these decisions of trial
counsel, and during oral argument, neither could [defendant’s]
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appellate counsel nor the State.” Id. Here, the facts do not
constitute the rare circumstance where ineffective assistance of
counsel is evident on the face of the record.
On appeal, Sorey does not raise a single claim of preserved
error or even a claim that any error below was fundamental. The
trial court is the more appropriate forum to present claims of
ineffective assistance of counsel where evidence may be reviewed
to determine why actions were taken or omitted by counsel.
McKinney v. State, 579 So. 2d 80, 82 (Fla. 1991). An appellate court
“normally considers the merits of ineffective assistance of counsel
claims after a postconviction motion has been filed under the
applicable rule of criminal procedure and ruled upon by the trial
court following the completion of any necessary evidentiary
proceedings.” Robards v. State, 112 So. 3d 1256, 1266 (Fla. 2013).
An appellant should not be permitted to circumvent the standard
of fundamental error by claiming that the failure to raise the
issues constitutes ineffective assistance, “which entails a different
standard that could provide an easier path to reversal, and which
deprives trial counsel of the opportunity to defend themselves
against allegations of unprofessional conduct.” Latson v. State, 193
So. 3d 1070, 1074 (Fla. 1st DCA 2016) (Winokur, J., concurring).
Accordingly, we affirm Sorey’s conviction and sentence for
possession with intent to sell a controlled substance within 1,000
feet of a place of worship. This does not preclude his ability to file
a motion pursuant to rule 3.850.
JAY and M.K. THOMAS, JJ., concur; WINSOR, J., concurs with
written opinion.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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WINSOR, J., concurring.
Ineffective-assistance claims rarely succeed on direct appeal.
To prevail, an appellant must show “indisputable prejudice,”
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among other things. Morales v. State, 170 So. 3d 63, 67 (Fla. 1st
DCA 2015). Here, Sorey has shown the possibility of insufficient
evidence on a somewhat technical point, but he has not shown
indisputable prejudice.
Sorey faced charges of possessing drugs “within 1,000 feet of
a physical place for worship at which a church or religious
organization regularly conducts religious services.” See
§ 893.13(1)(e)2, Fla. Stat. And although a church pastor testified
about regular services in the place at issue, the pastor neglected to
say there also had been regular services months earlier, at the time
of the offense. See Fletcher v. State, 168 So. 3d 330, 331 (Fla. 1st
DCA 2015) (noting that the “statute has been construed to require
the State to prove at trial that regular religious services were being
held at the time of the offense” (emphasis added)). Sorey’s counsel
made no issue of this.
In Monroe v. State, on which Sorey relies, the Florida Supreme
Court found “one of the rare examples in which the ineffectiveness
of trial counsel is cognizable on direct appeal.” 191 So. 3d 395, 404
(Fla. 2016). There had been a failure of evidence on a critical point
(the victim’s age), and although defense counsel “vigorously
disputed” the age during closing arguments, counsel did not move
for a judgment of acquittal. The Florida Supreme Court held that
counsel’s failure was inexplicable and caused “indisputable
prejudice.” Id. But the court reached that conclusion only after
explaining that the State did everything it could to present the
missing evidence: “Despite the best efforts of the State during trial,
the prosecutor was unable to elicit testimony from [the victim]
regarding the exact date that Monroe assaulted him.” Id. at 403.
Here, there was no comparable effort. For all we know, had
Sorey’s counsel raised the issue of past religious services, the State
would have reopened its case and called the pastor for one more
question and answer. Cf. Dees v. State, 357 So. 2d 491, 491 (Fla.
1st DCA 1978) (noting trial court’s discretion to allow State to
reopen case after defense moves for judgment of acquittal). And for
all we know, Sorey’s counsel knew that—and therefore did not
bother raising the issue. Accordingly, we have no record basis to
label Sorey’s counsel constitutionally ineffective or to find
indisputable prejudice.
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Andy Thomas, Public Defender, and Kevin Steiger, Assistant
Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Virginia Harris,
Assistant Attorney General, Tallahassee, for Appellee.
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