# Supreme Court of Florida

____________ No. SC15

- 628

____________ JOSHUA LEE ALTERSBERGER ,

Appellant,

vs. STATE OF FLORIDA , Appellee.

____________ No. SC15

- 1612

____________ JOSHUA LEE ALTERSBERGER ,

Petitioner,

vs. JULIE L. JONES, etc., Respondent. [April 27, 2017]

PER CURIAM.

Joshua Lee Altersberger appeals an order of the circuit court denying his

motion to vacate his conviction of first

- degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ- 2

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of habeas corpus. For the reasons that follow, we vacate the death sentence and remand for a new penalty ph ase

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I. BACKGROUND On direct appeal, this Court d escribed the facts as follows : Late in the morning of January 12, 2007, the [d] efendant drove to a friend’s home in Highlands County. Also at the home was Quentin Kinder, who was in Florida to avoid arrest for violating his Georgia probation. After drin king and playing videogames, Altersberger left the home with Kinder. Kinder testified that, at this point, Altersberger was not so affected by the alcohol that his speech was impaired but was “buzzing a little bit.” Later that afternoon, around 3:00 p.m., Altersberger drove with Kinder to a restaurant in Lake Placid in an effort to meet a girl whom he believed to be working there. Upon learning that the girl was not at work, Altersberger drove with Kinder to a nearby convenience store so that he could buy a cigar. As Altersberger and Kinder were walking out of the store, the two noticed a deputy sheriff in a marked patrol car stopped at a red light. Kinder then heard Altersberger state, as though he was speaking to the deputy, “You better not stop me or I’m going to shoot you.” Altersberger left the store with Kinder and drove north on Highway 27 out of Lake Placid. Altersberger’s driving was aggressively erratic, and he swerved several times in and out of heavy afternoon traffic. At one point, Altersbe rger had to swerve in the midst of a lane change in order to avoid striking another car. This attracted the attention of Florida Highway Patrol Sergeant Nick Sottile who had been travelling in the opposite direction and who turned to pursue. Kinder saw Se rgeant Sottile turn around and notified Altersberger. Altersberger responded by saying that he was going “to push it,” or speed up to flee. Kinder told Altersberger not to try to flee and also said that, because of his Georgia probation violation, he was going to run from the car once Altersberger pulled over. As he

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. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.- 3

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was pulling over, Altersberger cut sharply from the left lane across the right lane, cutting off and nearly striking a semi truck. And, as Altersberger pulled off the roadway, he stated to K inder that he was going to shoot Sergeant Sottile. Kinder told Altersberger not to shoot the officer, and then got out of the car and ran into a nearby orange grove. Intending to complain to Sergeant Sottile about Altersberger’s driving, the semi truck dr iver pulled over behind the trooper’s patrol car. The truck driver then got out of his truck and walked toward Sergeant Sottile, who ordered him back to his truck. From the elevated cab of his semi truck, the driver was able to observe the events that fo llowed. Sergeant Sottile approached Altersberger’s driver’s side window with his hand resting on his gun. Altersberger raised his hands as Sottile approached and kept them raised while he spoke with Sottile for a short time. Sottile, appearing to be more comfortable with the situation, took his hand from his gun. After Sottile took his hand off his gun, Altersberger lowered his hands and pulled a gun. Sergeant Sottile raised his hands and started to back away from Altersberger’s window when Altersberger shot him. Sergeant Sottile was hit near his left collar bone and fell backward to the ground. Altersberger then reached out the window of his car to aim his gun at Sergeant Sottile and tried several times to shoot him in the head, but his gun would not fire. Altersberger then rapidly drove away. Sergeant Sottile died shortly thereafter as a result of internal bleeding from the gunshot wound. Altersberger pled guilty to first

- degree murder on March 13, 2009. At the penalty phase, the State presented te stimony regarding the murder of Sottile. The defense presented laywitness testimony of Altersberger’s mother and aunt, one of his mother’s friends, and the testimony of former teachers and health department employees who remembered Altersberger as a child . These witnesses testified that Altersberger had an impoverished and unstable upbringing and a history of anger problems. They also testified that his mother had very poor parenting skills, did not make good decisions regarding the men that she brought around her children, did not treat or discipline Altersberger appropriately, and did not display affection toward him. Altersberger also presented the testimony of two mental health experts. The first, Dr. Krop, a forensic psychologist, testified that Al tersberger has anger issues that stem from his dysfunctional- 4

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relationship with his mother and the insecurity caused by her poor parenting and decision

- making throughout his childhood. Dr. Krop also explained that, despite his 103 IQ, Altersberger has prob lems with planning and impulse control and was extremely immature for his age, both socially and developmentally. Dr. Gur, a neuropsychologist who specializes in neuroimaging, testified that the orbital frontal and amygdala regions of Altersberger’s brain are significantly undersized and that such a condition would result in impaired ability to control and regulate emotions and impulses, an impairment that would be exacerbated by drug and alcohol use or abuse. However, Dr. Gur stated that, because he had never met Altersberger and was not familiar with the facts of the case, he could not connect his findings to the crime itself. The jury recommended the death penalty by a vote of nine to three. After a Spencer [N.1] hearing, the trial court followed the jury’s recommendation and sentenced Altersberger to death. In so doing, the trial court found the following aggravators: (1) the victim was a law enforcement officer engaged in the lawful performance of his official duties (great weight); and (2) the murder was committed in a cold, calculated, and premeditated manner (CCP) without any pretense of moral or legal justification (great weight). The trial court also found the following mitigators: (1) Altersberger was 1 9 years old at the time of the murder (slight weight); (2) Altersberger’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired (moderate weight); [N.2] (3) the offense was committed in an unsophisticated manner (very, very slight weight); (4) Altersberger was under the influence of alcohol at the time of the offense (little weight); (5) Altersberger had a long

- term history of substance abuse from age 15 (very slight weight); (6) Altersberger was brought up in a dysfunctional family and home environment (moderate weight); (7) Altersberger loves and is valued by his family (very slight weight); (8) Altersberger loved his grandfather and was devastated by hi s death (very slight weight); (9) Altersberger was the victim of racial discrimination within his own family (little weight); (10) Altersberger maintained good behavior throughout the proceedings (very slight weight); and (11) Altersberger [pled] guilty an d took responsibility for the offense (little weight). In weighing the aggravators and mitigators and determining death to be the appropriate sentence, the trial court specifically stated “that the aggravating circumstances in this case far outweigh the m itigating- 5

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circumstances” and that “either aggravating circumstance alone would outweigh all of the mitigating circumstances.” [N.1] Spencer v. State , 615 So. 2d 688 (Fla. 1993). [N.2] The trial court merged the following nonstatutory mitigating circums tances into this one statutory mitigator: (1) Altersberger did not fully develop emotionally; (2) Altersberger did not fully develop cognitively; (3) Altersberger has brain deficiencies that reduce his ability to control impulse behavior; (4) Altersberger has brain deficiencies that reduce his capacity to make reasoned decisions; (5) Altersberger suffered significant emotional deprivation while he was growing up that adversely affected his psychological development; and (6) Altersberger’s dysfunctional fam ily life prevented healthy psychological development. The court then explained that it gave each mitigator slight weight, individually, but moderate weight when merged and considered collectively. Altersberger v. State , 103 So. 3d 122, 124

- 26 (Fla. 2012)

. This Court affirmed Altersberger’s conviction and death sentence on direct appeal. Id. at 131. On direct appeal, Altersberger argued that the trial court erred in finding the CCP aggravator. Id. at 126. And this Court also reviewed whether Altersberg er’s plea was knowingly, intelligently, and voluntarily made and whether his death sentence was proportionate. Id. at 128

- 31. For preservation purposes, Altersberger also argued on direct appeal that “(1) the use of hearsay evidence during the penalty ph ase violates the Confrontation Clause; (2) Florida’s death penalty statute violates Ring v. Arizona , 536 U.S. 584 (2002); (3) Florida’s death penalty statute and jury instructions unconstitutionally shift the burden of- 6

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proof to the defendant to show why de ath is not the appropriate sentence; (4) the CCP aggravator is unconstitutionally vague and overbroad; (5) victim impact evidence violates defendant’s due process rights; and (6) execution by lethal injection is unconstitutional.” Id. at 126 n.4. T his Co urt “reject[ed] each of these arguments as contrary to this Court’s well established precedent.” Id. Altersberger filed a motion for postconviction relief on November 13, 2013 , and filed an amended motion on March 7, 2014, whi ch the trial court denied af ter holding an evidentiary hearing. Altersberger appeals the trial court’s denial and also petitions this Court for a writ of habeas corpus.

II. POSTCONVICTION MOTION

A. Ineffective Assistance of Trial Counsel Altersberger argues that trial counsel was ineffective for failing to adequately advise Altersberger, during the time frame between the entry of his guilty plea and the trial court’s sentence of death, about the different legal standard that applies to a motion to withdraw a guilty plea depending on whether the motion is made prior to or after sentencing. 2 However, we affirm th e trial court’s denial of

this claim

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2 . Altersberger also argues that trial counsel was ineffective during the penalty phase and that there was reversible cumulative error. Because we remand for a new penalty phase, we do not a ddress these claims or the summarily denied claims related to the penalty phase.- 7

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Following the United States Supreme Court’s decision in Strickland v. Washington , 466 U.S. 668 (1984), this Court explained that two requirements must

be met for ineffective assistance of counsel claims to be successful: First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prev ailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. Bolin v. State , 41 So. 3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright , 490 So. 2d 927, 932 (Fla. 1986)). Regarding the deficiency prong of Strickland , there is a strong presumption that trial counsel’s performance was not ineffective. Strickland , 466 U.S. at 689. Moreover, “[a] f

air assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time .” Id. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana , 350 U.S. 91, 101 (1955)). Regarding the prejudice p rong of Strickland , “the defendant must show that there is a reasonable probability that, ‘absent the [deficient performance], the factfinder would have [had] a reasonable doubt respecting guilt.’ ” Henry v. State ,- 8

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948 So. 2d 609, 617 (Fla. 2006) ( quoting Strickland , 466 U.S. at 695). “A reasonable probability is a ‘probability sufficient to undermine confidence in the

outcome.’ ” Id. (quoting Strickland , 466 U.S. at 694). “Because both prongs of Strickland present mixed questions of law and fact,

this Court employs a mixed standard of review, deferring to the trial court’s factual findings that are supported by competent, substantial evidence, but reviewing the trial court’s legal conclusions de novo.” Dennis v. State , 109 So. 3d 680, 690 (Fla. 2012). Florida Rule of Criminal Procedure 3.170(f) provides the legal standard that applies to motions to withdraw plea agreements made prior to sentencing: The court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn and, if judgment of conviction has been entered thereon, set aside the judgment and allow a plea of not guilty, or, with the consent of the prosecuting attorney, allow a plea of guilty or no contest of a lesser inclu ded offense, or of a lesser degree of the offense charged, to be substituted for the plea of guilty or no contest. The fact that a defendant may have entered a plea of guilty or no contest and later withdrawn the plea may not be used against the defendant in a trial of that cause. Fla. R. Crim. P. 3.170(f) . Under this provision, a trial court has broad discretion in determining motions to withdraw a plea, although it must permit withdrawal upon “good cause.” State v. Partlow , 840 So. 2d 1040, 1042 (Fla. 2003). Rule 3.170( l ) provides the standard that applies to motions to withdraw plea agreements made after sentencing:- 9

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A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)

- (e) except as provided by law. Fla. R. Crim. P. 3.170( l ) . According to this Court’s case law, pursuant to r ule 3.170( l ) , once a sentence has been imposed, a defendant must demonstrate manifest injustice or prejudice in order to withdraw a guilty plea. Campbell v.

State , 125 So. 3d 733, 736 (Fla. 2013); Partlo w , 840 So. 2d at 1042. “[A] court does not enjoy broad discretion as to motions filed after sentencing.” Griffin v.

State , 114 So. 3d 890, 898 (Fla. 2013). In this case, Altersberger has not demonstrated deficiency. Regarding Altersberger’s plea and in cluding the time period between the entry of his guilty plea and the trial court’s sentence of death, trial counsel discussed with Altersberger “the importance of prevailing at the penalty phase and had explained to him that entering a plea would be a good strategic decision.” Altersberger , 103

So. 3d at 128. The decision to enter a guilty plea was a difficult decision for Altersberger to make, and it took him a while to make the de cision to enter a plea

. However, as this Court noted on direct appeal, th e decision to enter the plea was ultimately made by Altersberger, it was “knowingly, intelligently, and voluntarily made,” Altersberger was not forced or coerced into entering his plea, and he was not promised anything in return for his plea. Id. at 130.- 10

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This Court also noted that the trial court, after holding a Nelson 3 hearing on March 11, 2009, denied Altersberger’s motion to discharge his attorneys on the grounds that they were improperly attempting to force him to plead guilty “because

there was not hing presented to indicate that counsel was ineffective or had performed incompetently.” Id. at 129. After entering the plea on March 13, 2009, and “a lengthy plea colloquy,” the judge inquired even further, and “Altersberger told the judge that he had b een fully advised by his attorneys that pleading guilty

would be in his best interest.” Id. at 129

- 30. One of Altersberger’s trial counsel s , Deb Goins, testified at the evidentiary hearing that , to her knowledge, they did not talk to Altersberger about th e specific subtleties between filing a motion to withdraw a plea prior to sentencing versus filing a motion to withdraw a plea after sentencing. And trial counsel Peter Mills testified at the evidentiary hearing that he “probably covered the issues with h im generally,” but did not get into specifics. Nevertheless, trial counsel’s advice to Altersberger that it was better to wait until after sentencing to move to withdraw his plea was reasonable trial strategy. See Occhicone v. State , 768 So. 2d 1037,

104 8 (Fla. 2000) (“[S]trategic decisions do not constitute i neffective assistance of

3

. Nelson v. State , 274 So. 2d 256 (Fla. 4th DCA 1973).- 11

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counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.”). Specifically, trial couns el was weighing the decision to wait until after sentencing to withdraw the plea so that their deal with the State to keep out damaging testimony from the penalty phase would not be impacted against filing the motion to withdraw the plea before sentencing where a different standard would apply. As this Court discussed on direct appeal:

Altersberger’s attorneys testified that they knew the prosecution had as many as twenty witnesses who could provide highly damaging testimony as to Altersberger’s acts and a dmissions following the shooting and that this testimony would make obtaining a life sentence extremely difficult. They believed, therefore, that the best trial strategy was to agree with the prosecution that Altersberger would plead guilty in return for the prosecution not calling those witnesses at the penalty phase. They also explained that when Altersberger asked them what his odds of getting a life sentence would be, they told him that they could not guarantee anything, but his chances would greatly improve if he were to enter a plea so as to limit the prosecution’s introduction of evidence at the penalty phase. As to his desire to withdraw his plea prior to sentencing, Altersberger’s attorneys testified that they explained Altersberger’s rights rega rding plea withdrawal and advised him against withdrawing the plea but would have filed the motion to withdraw the plea if they had been directed to do so. Altersberger , 103 So. 3d at 129. And in denying Altersberger’s motion to withdraw his plea that was filed after sentencing, the trial court explained that, based on the testimony given by Altersberger and his attorneys, “[i]t is clear that the [d]efendant in agreement with his attorneys made a tactical decision that it was- 12

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in his best interest in the ho pes of obtaining a life sentence to enter a plea of guilty and proceed directly to the penalty phase.” Id. at 130. Additionally, Altersberger has not demonstrated prejudice from trial counsel’s decision to advise Altersberger to move to wit hdraw the ple a after sentencing rather than before sentencing and from failing to specifically explain the different standards. After holding a hearing, Altersberger’s motion to withdraw his plea , which was filed after sentencing , was denied. T he trial court in this case actually did review Altersberger’s plea and the circumstances surrounding his plea before sentencing when Altersberger filed a motion to discharge his attorneys on the grounds that they were improperly attempting to force him to plead guilty

. A nd , at the hearing on this motion , Altersberger also complained about his attorney’s advice regarding the plea. Altersberger cannot show that the trial court would have granted a presentence motion to withdraw his plea. Moreover , as this

Court’s review of Alte rsberger’s plea on direct appeal demonstrates, Altersberger would not have been able to offer proof that his plea was not knowing, intelligent, and voluntary. See id. at 128

- 30. A ccordingly, Altersberger has failed to demonstrate how he was prejudiced by trial counsel’s advice or lack of advice regarding when to file the motion to withdraw his plea. Therefore, because Altersberger has failed to establish deficiency and prejudice, we affirm the tr ial court’s denial of relief.- 13

- B. Hurst Next, we consider w hether A l tersberger is entitled to relief after the United States Supreme Court issued its decision in Hurst v. Florida , 136 S. Ct. 616 (2016). Because the jury recommended th e death penalty by a vote of nine to three , we conclude that Altersberger ’s deat h sentence violates Hurst

. See Kopsho v. State , 209 So. 3d 568, 570 (Fla. 2017). We must then consider whether the Hurst error was harmless beyond a reasonable doubt: The harmless error test, as set forth in Chapman[v. California , 386 U.S. 18 (1967),] an d progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error c ontributed to the conviction. Hurst v. State , 202 So. 3d 40, 68 (Fla. 2016) (quoting State v. DiGuilio , 491 So. 2d 1129, 1138 (Fla. 1986)) , petition f or cert. filed , N o. 16

- 998 (U.S. Feb. 16, 2017). Because the jury in this case rec ommended death by a vote of nine to t hree , “we cannot determine that the jury unanimously found that the aggravators outweighed the mitigation.” Kopsho , 209 So. 3d at 570 . “We can only determine that the jury did not unanimously recommend a sentence of d eath.” Id. Therefore, because we cannot say that there is no possibility that the error did not contribute

to t he sentence, the error in Altersberger ’s sentencing was not harmless beyond a

reasonable doubt.- 14

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Accordingly, we vacate the death sentence and remand for a new penalty phase. See Hurst , 202 So. 3d at 69.

III. HABEAS PETITION Altersberger argues that appellate counsel was ineffective for failing to raise a claim on direct appeal regarding the voluntariness of Altersberger’s guilty plea. 4

In t his case, because the conviction for which the death penalty was imposed was the result of Altersberger’s guilty plea, “this Court’s [mandatory] review shifts to the knowing, intelligent, and voluntary nature of that plea.” Barnes v. State , 29 So.

3d 1010 , 1020 (Fla. 2010) (quoting Tanzi v. State , 964 So. 2d 106, 121 (Fla. 2007)). This Court held on direct appeal that “Altersberger’s plea was knowingly, intelligently, and voluntarily entered.” Altersberger , 103 So. 3d at 130 . B ecause

this Court actually reviewed this claim on direct appeal, we deny relief

. See

Wheeler v. State , 124 So. 3d 865, 889 (Fla. 2013) (denying habeas relief for claim

that appellate counsel were ineffective for failing to make more specific claims regardin g victim impact photographs because this Court already reviewed the photographs on direct appeal ) ; Messer v. State , 439 So. 2d 875, 879 (Fla. 1983) (“Habeas corpus is not a vehicle for obtaining a second determination of matters previously decided on appea l.”)

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. Because we remand for a new pen alty phase, we do not specifically address the penalty phase claim Altersberger raised in his habeas petition

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- IV. CONCLUSION For the foregoing reasons, we affirm the denial of Altersberger’s postconviction guilt phase claims, deny h is guilt phase habeas claim, vacate his death sentence, and remand f or a new penalty phase

. It is so ordered. LABARGA, C.J. , and PARIENTE, LEWIS, and QUINCE, JJ., concur. POLSTON, J., concurs in part and dissents in part with an opinion, in which CANADY and LAWSON, JJ., concur. NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED. POLSTON, J., conc urring in part and dissenting in part. I concur with the majority’s decision except its vacating of the death

sentence pursuant to Hurst

. CANADY and LAWSON, JJ., concur. An Appeal from the Circuit Court in and for Highlands County, Angela Jane Cowden, Ju dge

- Case No. 282007CF000041XXAXMX And an Original Proceeding

– Habeas Corpus James Vincent Viggiano, Jr. , Capital Collateral Regional Counsel, and Julie A. Morley and Mark S. Gruber, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant/Petitioner Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and C. Suzanne Bechard, Assistant Attorney General, Tampa, Florida, for Appellee/Respondent