# Supreme Court of Florida

____________ No. SC17

- 127

____________ KENNETH DARCELL QUINCE,

Appellant,

vs. STATE OF FLORIDA, Appellee. [April 1 2 , 2018] REVISED OPINION PER CURIAM. Kenneth Darcell Quince, a prisoner under sentence of death, appeals the trial court’s order summarily denying his renewed motion for a determination of intellectual disability as a bar to execution , which was filed under Florida Rule of Criminal Procedure 3. 203 and section 921.137, Florida Statutes (2015)

. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons we explain, we
affirm the denial of relief. I. BACKGROUND
In 1980, Quince pleaded guilty to first

- degree felony murder and burg lary of a dwelling and, after waiving his right to a penalty phase jury, was sentenced to- 2

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death. We affirmed Quince’s death sentence on direct appeal. Quince v. State , 414 So. 2d 185, 189 (Fla. 1982). Quince filed an initial m otion for postconviction relief, the denial of which was eventually affirmed on appeal. See Quince v. State , 732 So. 2d 1059 (Fla. 1999); Quince v. State , 592 So. 2d 669 (Fla. 1992); Quince
v. State , 477 So. 2d 535 (Fla. 1985). In 2004, Quince filed a successive motion for post conviction relief under Florida Rules of Criminal Procedure 3.851 and 3.203, in which he sought to vacate his death sentence on the ground that he is intellectually disabled and therefore ineligible for the death penalty under Atkins v. Virginia , 536 U.S. 304 (200 2), and section 921.137, Florida Statutes (2003). 1 In 2008, an evidentiary hearing was held, at which the trial court heard evidence regarding all three prongs of the intellectual disability standard and thereafter denied the motion based solely o n Quince’s failure to meet the significantly subaverage general intellec tual functioning prong

. The denial of relief was affirmed o n appeal

. Quince v. State , No. SC11

- 2401, 2012 WL 6197458, at *1

- 2 (Fla. Dec. 10 , 2012) ( 116 So. 3d 1262 (table ) ) , cert. denied , 134 S. Ct. 2695 (2014)

.

1 . Section 921.137 requires a defendant to establish his or her intellectual disability by demonstrating the following three factors: (1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen. § 921.137(1), Fla. Stat. The defendant has the burden to prove that he or she is intellectually disabled by clear and convincing evidence. § 921.137(4), Fla. Stat.- 3

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In 2014, the United States Supreme Court issued its decision in Hall v. Florida , 134 S. Ct. 1986, 1990 (2014), in which it held that Florida’s interpretation of its statute prohibiting the imposition of the death sentence up on an intellectually disabled defendant as establishing a strict IQ test score cutoff of 70 “ creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional. ” Instead of applying the strict cutoff when assessing the subaverage intellectual functioning prong of the intellectual disability standard , courts must now take into account the standard error of measurement (SEM) of IQ

tests. See Hall , 134 S. Ct. at 2001. And “ when a defendant ’ s IQ test score falls within the test ’ s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits. ” Id.
In the wake of Hall , Quince filed a renewed moti on for a determination of intellectual disability as a bar to execution in 2015 . Quince did not request an other evidentiary hearing or seek t o present any new evidence of his alleged intellectual disability but simply asked the trial court to review the r ecord from the 2008 intellectual disability hearing in light of Hall

. Quince also argued that although the current state of the law requires a defendant to prove his or her intellectual disability by clear and convincing evidence, the trial court sh ould a llow Quince to prove his intellectual disability by a preponderance of the evidence because , he- 4

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alleged, “ the ‘ clear and convincing evidence ’ requirement runs afoul of Atkins and the Eighth and Fourteenth Amendments to the Constitution of the United States

. ”
A t the hearing held on Quince ’ s renewed motion, the trial court acknowledged that although it had heard evidence regarding all three prongs of the intellectual disability standard at Quince’s 2008 hearing, it denied Quince ’ s initial intellectual disability claim based solely on his failure to demonstrate that he meets the significantly subaverage general intellectual functioning prong . The trial court agreed with Quince that Hall should be applied retroactively to his case but disagreed that Quin ce should be allowed to prove his intellectual disability by a preponderance of the evidence instead of c lear and convincing evidence

. The trial court stated that it would review the record and evidence from Quince’s 2008 intellectual disability hearing a nd reconsider his intellectual disability claim in light of Hall

. After reviewing the record and considering written memoranda from both parties, the trial court concluded that Quin ce failed to prove that he is intellectual ly disabled because none of the three IQ scores he had presented

— 7 9 , 7 7 , and 7 9

— fell within the SEM and Quin c e “ was not precluded from presenting additional evidence of intellectual disability, including testimony regarding adaptive deficits. ” This appeal follows. II. ANALYSIS- 5

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Quince contends that the trial court erred in failing to find that he meets the first prong of the intellectual disability standard

— significantly subaverage ge neral intellectual functioning

— because it did not adjust his IQ s cores to account for the Flynn e ffect. 2 According to Quince, because Hall requires courts assessing IQ to allow professional standards to inform their decisions, the trial court was required to ap ply the Flynn e ffect to adjust his IQ scores down . Although the only IQ scores Quince has present ed are a 79 (obtained using the WAIS in 1980 ) , a 77 (obtained using the WAIS

- R in 1984 ) , and a 79 (obtained using the WAIS

- III in
2006 ), he claims that when t he Flynn e ffect is applied and the SEM is taken into account as required by Hall , his 1980 IQ scor e of 79 becomes a range from 65

- 7 5 , his 1984 IQ score of 7 7 becomes a range of 70

- 80, and his 2006 IQ score of 79 becomes a range of 71

- 81. He asserts that all of these “ranges contain a score on which a finding of significantly subaverage general intelle ctual functioning is warranted.” At the evidentiary hearing on Quince ’ s initial intellectual disability claim in
2008 , Dr. Oakland, a psychologist, testified that he relied on the Flynn e ffect to adjust Quince’s 1 980 IQ score from a 79 to a 70. B ut Dr. Oakland admitted that

2

. The Flynn effect refers to a theory in which the intelligence of a population increases over time, thereby potentially inflating performance on IQ examinations. The accepted increase in scoring is approximately three points per d ecade or 0.33 points per year.- 6

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there is no scientific way to dete rmine whether or not the Flynn e ffect is operating on a particular person’s intelligence score and that he could only say that it was “within the realm of probability” that the Fly nn e ffect impacted Q uince’s 1980 IQ

score . Dr. Oakland did not dispute the accuracy of Quince’s unadjusted 1984 IQ
score of 7 7 or his unadjusted 2006 IQ score of 79 and did not testify that those scores sh ould be adjusted for the Flynn e ffect. At the same 2008 hearing, anot her psychologist, Dr. McClaren , testified that because Quince’s IQ scores remained virtually the same across time and are “tightly clustered near the upper bounds of the borderline level of intellect,” the Flynn e ffect had no impact on them. Dr. McC laren testified that the Flynn e ffect does n ot apply on an individual basis, that it is not general clinical practice to subtract the “ Flynn number ” from an attained IQ score , and that the most recent publication from the American Association on Mental Retardati on (which has since been renamed the American Association of Intellectual and Developmental Disabilities (AAIDD) ) at the time did not advise doing so

. Dr. McClaren also testified that i t would not only be inappropriate but would make no sense to simply add the Flynn number and the SEM together and subtract them from an IQ score because they are not totally independent of one another. After the hearing, the trial cou rt declined to apply th e Flynn e ffe ct to adjust Quince’s IQ scores and concluded that Quince did not establish that he suffers from significantly subaverage general intellectual functioning.- 7

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We previously considered and rejected Quince ’ s argument that the trial court erred in fa iling to apply the Flynn e ffect to his IQ scores when Quince appe al ed the denial of his initial intellectual disability claim. See Quince , 116 So. 3d 1262 (table); Initial Brief of the Appellant at 50, Quince v. State , 116 So. 3d 1262 (Fla. 2012) (table) (No. SC11

- 2401 ). Quince again argues that the trial court erred in failing to adjust his score s for the Flynn e ffect when consider ing his renewed intellectual disability claim. Quince now relies on a 2015 publication of the AAIDD, The Death Penalty and Intellectual Disability (Edward A. Polloway, ed. 2015) (DPID), which states that t here is “ a consensus tha t individually obtained IQ

test scores derived from tests with outdated norms must be adjusted to account for the Flynn Effect, particularly in Atkins cases. ” Quince argues that under “ Hall , courts assessing ID must allow professional standards to inform their decisions ”
and that “ [i] t i s clear that both the professional community and the legal community recommend adjusting for the Flynn Effect in the context of Atkins

cases. ” He asserts that if both the Flynn e ffect and the SEM are applied to his IQ

scores as he claims Hall requires, he will have established that he meets the significantly subaverage intellectual function ing prong of the intellectual disability standard. As many courts have already recognized , Hall does not mention the Flynn

e ffect and does not require its application to all IQ score s in Atkins cases. E.g. ,- 8

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Black v. Carpenter , 866 F.3d 734, 746 (6th Cir. 2017) (noting that Hall does n ot even mention the Flynn e ffect and does not require that IQ scores be adjusted for it) , petition for cert. filed , No. 17

- 8275 (U.S. Mar. 26, 2018) ; Smith v. Duckworth , 824 F.3d 1233, 1246 (10th Cir. 2016) ( “ Hall says nothing about application of the Flyn n Effect to IQ scores in evaluating a defendant ’ s intellectual disability. ” ), cert. denied , 137 S. Ct. 1333 (2017); Ledford v. Warden, G a. Diagnostic & Classification Prison , 818 F.3d 600, 639 (11th Cir. 2016) ( “ Hall did not mention the Flynn effect

. . . . There is no ‘ established medical practice ’ of reducing IQ scores pursuant to the Flynn effect . The Flynn effect remains disputed by medical experts, which renders the rationale of Hall wholly inapposite. ” ), cert. denied , 137 S. Ct. 1432 (2017). A lthough the AAIDD ’ s DPID publication may now advocate the adjustment of all IQ scores in Atkins cases that were derived from tests with outdated norms to account for the Flynn e ffect , “ Hall i ndicated that being informed by the medical community does not de mand adherence to everything stated in the latest medical guide. ” Moore v. Texas , 137 S. Ct. 1039, 1049 (2017). Because Quince has not demonstrated that Hall requires that his IQ scores be adjusted for the Flynn e ffect , and there is competent, substantial evidence in the record to support the trial court’s d ecision not to apply the Flynn e ffect to adjust Quince’s IQ scores, Quince is not entitled to relief on this claim

.- 9

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Next, Quince claims that the trial court erred i n failing to consider all three
pr ongs of the intellectual disability standard in tand em before denying his renewed intellectual disability claim. At the 2016 hearing on Quince ’ s renewed intellectual disability motion, the trial court acknowledged that it d enied Quince ’ s initial intellectual disability cla im under the applicable law at the time based exclusively on its finding that Quince failed to meet the significantly subaverage intellectual functioning prong of the intellectual disability standard , but t he trial court announced that it would apply Hall retroactively to Quince’s case , review the record of the 2008 intellectual disability hearing , and reconsider all of the evidence presented in light of Hall . After reviewing the record and considering writ ten memoranda from both parties, the trial court concluded that because “ none of [Quince ’ s IQ] scores are within the tests ’ acknowledged and inherent margin of error, and the defendant was not precluded from presenting additional evidence of intellectual d isability, including testimony regarding adaptive deficits, ” Quince is not entitled to relief under Hall

. We agree that Q uince is not entitled to relief on this basis

. I n response to a specific question asked by Quince at the 2016 hearing about the extent of the court ’ s review of his renewed intellectual disability claim, the trial court said that it would review the record from the 2008 evidentiary hearing, re

evaluate the evidence regarding the second and third prongs, and reconsider all of- 10

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the evidence in light of Hall

. The trial court’s order denying his renewed intellectual disability claim did not make any specific factual findings as to whether Quince had established that he me ets either the second or third prongs of the intellectua l disability standard, but under the circumstances presented, such specific findings were unnecessary. Although Hall requires courts to consider all three prongs of intellectual disability in tandem , we have recently reiterated that

“ [i]f the defendant fa ils to prove any one of these components, the defendant will not be found to be intellectually disabled. ” Salazar v. State , 188 So. 3d 799, 812 (Fla. 2016) ; accord Williams v. State , 226 So. 3d 758, 773 (Fla. 2017) , petition for cert. filed , No. 17

- 7924 (U.S. Feb. 26, 2018) ; Snelgrove v. State , 217 So. 3d 992, 1002 (Fla. 2017)

. And while Hall requires a holistic hearing, “ defendants must still be able to meet the first prong of [the intellectual disability standard]. ” Zack v.
State , 228 So. 3d 41, 47 ( Fla. 2017) , petition for cert. filed , No. 17

- 8134 (U.S. Mar. 12, 2018)

. Thus, because Qu ince failed to meet the significantly subaverage intellectual functioning prong (even when the SEM is taken into account ) , he coul d not have met his bu rden to demonstr ate that he is intellectually disabled

. Finally, Quince argues that section 921.137(4), Florida Statutes, which requires that defendants prove their intellectual disability by clear and convincing evidence , is unconstitutional under Atkins and the Eighth and Fourteenth Amendments to the United States Constitution, and that he should hav e been- 11

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permitted to prove his intellectual disability claim by the more lenient preponderance of the evidence standard instead. Because we conclud e that Qui nce’s intellectual disability claim would have failed even under the preponderance of the evidence standard, we need not address the constitutionality of the clear and convincing evidence standard of section 921.137(4), Florida
Statutes. See Singletary v. State , 3 22 So. 2d 551, 552 (Fla. 1975) (“[C]ourts should not pass upon the constitutionality of statutes if the case in which the question arises may be effectively disposed of on other grounds.”).
III . CONCLUSION For these reasons, we affirm the trial court ’s order denying Quince’s renewed motion for a determination of intellectual disability as a bar to execution. It is so ordered. LABARGA, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, and LAWSON, JJ., concur. QUINCE, J., dissents.
NO MOTION FOR REHEARI NG WILL BE ALLOWED. An Appeal from the Circuit Court in and for Volusia County, Joseph G. Will, Judge

- Case No. 642017CF101850XXXADL James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Raheela Ahmed, Maria Christine Perinetti, Lisa Marie Bort, and Reuben Andrew Neff, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant- 12

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Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham, Assistant Attorney General, Daytona Beach, Flo rida, for Appellee