Hector Sanchez-Torres v. State of Florida

         Supreme Court of Florida

                                 No. SC19-211

                       HECTOR SANCHEZ-TORRES,


                            STATE OF FLORIDA,


                                 No. SC19-836

                       HECTOR SANCHEZ-TORRES,


                             MARK S. INCH, etc.,

                              March 12, 2020
                           CORRECTED OPINION


      Hector G. Sanchez-Torres challenges an order denying in part and

dismissing in part his third amended motion to vacate judgments of conviction and
sentence of death, filed under Florida Rule of Criminal Procedure 3.851. He also

petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, §

3(b)(1), (9), Fla. Const. For the reasons set forth below, we affirm the denial of

postconviction relief, and we deny Sanchez-Torres’s petition for habeas relief.


      On direct appeal, we summarized the facts of the investigation that led to

Sanchez-Torres’s armed robbery and first-degree murder charges:

            On the evening of September 9, 2008, Erick Joel Colon had
      been at a friend’s house playing board games and left at 11 p.m. to
      walk home. He had his cell phone with him at the time, as well as a
      wallet with cash in it.

            Colon’s body was discovered lying on the sidewalk close to his
      home in the early morning hours of September 10, at 1:30 a.m. The
      area was very dark. When Colon’s body was discovered, his wallet
      and cell phone were missing.

            Colon had been shot once in the head, but had no other injuries.
      The medical examiner testified that the characteristics of the gunshot
      wound indicated that the muzzle of the gun was in direct contact with,
      and pressed hard against, the skin. The entrance wound was just
      below the left eye, and the exit wound was on the right back side of
      the head.

            On September 30, 2008, Colon’s mother testified that she
      received a phone call from her son’s number. When she answered, a
      young Hispanic woman was on the other end. Colon’s mother began
      crying and told the caller that the cell phone belonged to her murdered
      son. The caller hung up.

             Sanchez-Torres’s younger sister, who was fifteen years old at
      the time of the crime, testified during the penalty phase that she had
      discovered the cell phone and recognized that it was not one of her

brother’s cell phones. She found a contact listing for “mom” and
called it. A woman answered. She was crying and explained that the
cell phone belonged to her murdered son. Sanchez-Torres’s sister
then hung up and called her mother, who told her to turn off the phone
and wait for her to come home. Sanchez-Torres’s sister also called
Markeil Thomas, the codefendant in this case and Sanchez-Torres’s
good friend and roommate, who told her to turn off the phone and pull
out the battery, which she did. She gave the phone to Thomas, and
her mother got it from him.

      Detective Sharman with the Clay County Sheriff’s Office spoke
with Sanchez-Torres’s mother, Maria Torres, on October 1, 2008.
Torres stated that she had found the phone and that her daughter had
used the phone to call someone who said the phone belonged to her
son. Torres stated that she had taken the phone from her daughter and
had thrown it in the trash. At some point later, Torres told law
enforcement that she had given the cell phone to someone who had
destroyed it. The Clay County Sheriff’s Office was then able to locate
pieces of the phone.

       On October 2, Detective Sharman visited Sanchez-Torres in the
Duval County Jail to question him about the phone. Sanchez-Torres
stated that Thomas had bought the phone from an acquaintance known
as “D.” When informed that the phone belonged to a murder victim,
Sanchez-Torres denied having anything to do with the murder. The
Clay County Sheriff’s Office was able to identify and locate “D,” who
denied ever selling or giving Sanchez-Torres or Thomas a phone.

        Detective West, also with the Clay County Sheriff’s Office,
testified that he spoke with Torres on March 5, 2009, when he
interviewed her at her home. When he met with her, he informed her
that he had drafted an arrest warrant for her for tampering with the
cell phone and showed her an unsigned arrest warrant. Torres
testified that the next day, she told Sanchez-Torres about what
happened, and he told her to contact the detectives and tell them to
come see him.

      After Detective West received a phone call from Torres, in
which she stated that Sanchez-Torres wanted to speak to him,
Detective West proceeded to the Duval County Jail to interview

      Sanchez-Torres. During the initial part of the interview, Sanchez-
      Torres stated that Thomas had shot the victim and drew a diagram of
      the scene and the body to describe what happened. Detective West
      left the room, and Sanchez-Torres wrote out a three-page handwritten
      statement, in which he stated that he, and not Thomas, had shot the
      victim. Detective West returned to the room and took Sanchez-Torres
      to a different location in order to conduct a videotaped interview.
      Sanchez-Torres then told Detective West again that Thomas was the

Sanchez-Torres v. State, 

130 So. 3d 661

, 664-65 (Fla. 2013).

      Sanchez-Torres pled guilty to the armed robbery and first-degree murder of

Erick Colon and waived his right to a penalty phase jury.

Id. at 664.

The trial

court found the existence of two aggravating factors: “(1) prior violent felony

(great weight); and (2) commission during the course of a robbery (merged with

pecuniary gain) (great weight).”

Id. The prior violent

felony aggravator was based

on Sanchez-Torres being convicted of another murder that occurred less than two

months before he killed Mr. Colon.

Id. at 675.

The trial court also found the

existence of twenty-two nonstatutory mitigating circumstances and assigned

“slight,” “little,” or “some” weight to each.

Id. at 667-68.

The court determined

that the aggravating circumstances outweighed the mitigating circumstances and

sentenced Sanchez-Torres to death.

Id. at 668.

      On direct appeal, we affirmed the convictions and death sentence, holding

that Sanchez-Torres’s guilty plea was knowing, intelligent, and voluntary, and that

his death sentence was proportional.

Id. at 673, 676.

Sanchez-Torres filed a

motion to vacate his judgments of conviction and sentence. 1 Following an

evidentiary hearing on Sanchez-Torres’s third amended motion, the postconviction

court entered an order denying some of his claims and dismissing the others. 2

      Sanchez-Torres now argues that the court erred in denying three of his

ineffective assistance of counsel claims—that defense counsel: (1) misadvised him

to enter a guilty plea; (2) misadvised him to waive his right to a penalty phase jury,

and (3) failed to file a motion to suppress his confession. Sanchez-Torres also

       1. Sanchez-Torres’s motion raised the following ineffective assistance of
counsel claims: (1) failure to investigate and present penalty phase witnesses to
establish mitigating circumstances; (2) failure to investigate and present penalty
phase testimony from a mental health expert to prove mitigating circumstances; (3)
failure to ask that the penalty phase be held separately from the hearing held to
comply with Spencer v. State, 

615 So. 2d 688

(Fla. 1993); (4) failure to file a
motion for continuance of trial; (5) failure to file a motion to suppress involuntary
statements; and (6) failure to adequately prepare for trial and failure to advise
Sanchez-Torres of his rights and the nature of the charges against him, resulting in
a plea that was not knowing, intelligent, and voluntary. In addition, Sanchez-
Torres alleged: (7) newly discovered evidence based on Hurst v. Florida, 136 S.
Ct. 616 (2016); (8) newly discovered testimony by a codefendant asserting that
Sanchez-Torres was not the shooter; (9) Sanchez-Torres’s death sentence is
unconstitutional under Hurst v. State, 

202 So. 3d 40

(Fla. 2016); (10) cumulative
error in counsel’s guilt and penalty phase performance; (11) Sanchez-Torres may
be incompetent at the time of execution; and (12) lethal injection is cruel and

       2. The postconviction court also denied Sanchez-Torres’s motion to vacate
or withdraw his guilty plea and jury waiver, filed under Florida Rule of Criminal
Procedure 3.170(l), and dismissed without prejudice a supplement to the motion
that sought relief under Hurst v. State.

petitions this Court for a writ of habeas corpus, asserting that his charging

document was constitutionally defective and that his appellate counsel failed to

raise certain claims on direct appeal. We address each of these arguments in turn.


   I.      Sanchez-Torres’s Denied Postconviction Claims

        A. Trial counsel’s advice to plead guilty and waive a penalty phase jury

        Sanchez-Torres argues that the postconviction court erred in denying his

claim that trial counsel misadvised him to plead guilty against his best interests to

avoid going to a trial they were not prepared for. Sanchez-Torres also argues that

his trial counsel provided ineffective assistance by advising him to waive his right

to a penalty phase jury, a decision he insists had no possible benefit to him.

        To the extent Sanchez-Torres is arguing that his plea was not knowing,

intelligent, and voluntary, this claim is procedurally barred because the issue was

already addressed on direct appeal. See Freeman v. State, 

761 So. 2d 1055

, 1067

(Fla. 2000) (“This issue was raised on direct appeal and cannot be relitigated under

the guise of ineffective assistance of counsel.”). However, in the direct appeal

opinion, we refused to address Sanchez-Torres’s assertions that he was

misinformed about the consequences of a guilty plea, holding that such claims

should be addressed in postconviction proceedings, where an evidentiary hearing

could be held on the allegations. 

Sanchez-Torres, 130 So. 3d at 671

, 673. We

address now the claim that trial counsel misadvised Sanchez-Torres due to lack of


      To establish deficient performance such as to demonstrate ineffective

assistance of counsel, “[t]he defendant must specifically identify acts or omissions

of counsel that were manifestly outside the wide range of reasonably competent

performance under prevailing professional norms.” Long v. State, 

183 So. 3d 342


345 (Fla. 2016). The defendant has the burden to overcome “a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Strickland v. Washington, 

466 U.S. 668

, 689 (1984). When counsel

offers a strategic explanation for the challenged conduct, “this Court will not

second-guess counsel’s strategic decisions on collateral attack.” Brown v. State,

846 So. 2d 1114

, 1125 (Fla. 2003).

      The defendant must also establish prejudice, which, in the plea context,

means that “a defendant must demonstrate ‘a reasonable probability that, but for

counsel’s errors, the defendant would not have pleaded guilty and would have

insisted on going to trial.’ ” 

Long, 183 So. 3d at 345

(quoting Grosvenor v. State,

874 So. 2d 1176

, 1181 (Fla. 2004)). Because both deficient performance and

prejudice present mixed questions of law and fact, “this Court employs a mixed

standard of review, deferring to the circuit court’s factual findings that are

supported by competent, substantial evidence, but reviewing the circuit court’s

legal conclusions de novo.” Johnston v. State, 

63 So. 3d 730

, 737 (Fla. 2011).

      In this case, after hearing the testimony at Sanchez-Torres’s evidentiary

hearing, the postconviction court made the following findings in its order:

      Counsel had no basis to believe at the time that Defendant could not
      appreciate the circumstances and his options. Counsel advised
      Defendant to enter a guilty plea because it was in his best interests.
      Counsel believed a Clay County jury would absolutely convict
      Defendant of first-degree murder and give him death based on the
      facts of the case, and as a result counsel attempted to negotiate a plea
      deal with the State. The defense strategy was to plead guilty, try to
      use the polygraph and other pieces of evidence to convince the [trial
      court] that Defendant was not the shooter, rely on Defendant’s asking
      for mercy, taking of responsibility, and remorse, and demonstrate that
      he was young, immature, a young father, loved by a lot of people, a
      great client, and respectful to convince the [trial court] that a death
      sentence was not appropriate. Counsel also considered the [trial
      court]’s override of a recommendation for death in the case of
      Kenneth McBride, which happened two weeks before Defendant
      entered his plea. The Court finds counsel’s advice to enter the guilty
      plea reasonable and strategic.

      These findings are supported by competent, substantial evidence. Sanchez-

Torres’s trial counsel testified at the evidentiary hearing that the defense team was

prepared to go to trial but believed a guilty plea was in their client’s best interest.

As far as sentencing preparation, it can hardly be argued that counsel was

unprepared for sentencing, considering counsel presented testimony from forty-

four witnesses at the penalty phase hearing, leading to a finding of nearly two-

dozen mitigating circumstances.

      Counsel further explained that the defense team knew Sanchez-Torres was

likely to be convicted and believed, from their experience with Clay County juries,

that a jury was likely to make an adverse recommendation for the death penalty.

Counsel believed that Sanchez-Torres had a better chance at getting a life sentence

if there was no jury recommendation for death. Counsel testified that the strategy

to plead guilty and to rely on mitigation factors, remorse, and polygraph results

was explained to Sanchez-Torres, and that he understood his plea and knew a death

sentence was still a possibility.

      Because Sanchez-Torres did not show that counsel’s advice was the result of

misinformation or lack of preparation, we agree with the postconviction court that

counsel’s advice to plead guilty and waive the right to a penalty phase jury was a

strategic decision—one we will not second-guess. See 

Brown, 846 So. 2d at 1126


We therefore affirm the postconviction court’s denial of these claims.

      B. Trial counsel’s failure to file a motion to suppress

      Sanchez-Torres argues that the postconviction court erred in denying his

claim that defense counsel provided ineffective assistance by failing to file a

motion to suppress Sanchez-Torres’s confession. Sanchez-Torres insists that the

trial court would have granted a motion to suppress because the investigating

detectives coerced the confession by threatening to arrest Sanchez-Torres’s mother

and sister. We affirm, for the record does not demonstrate that Sanchez-Torres’s

confession was involuntary and therefore does not establish that the court would

have suppressed the confession.

      We have repeatedly held that if a defendant does not demonstrate that a

motion to suppress would have been successful and that the evidence in question

would have been excluded, he cannot establish that he was prejudiced by a failure

to file a motion to suppress. See Lebron v. State, 

135 So. 3d 1040

, 1053 (Fla.

2014). And even if a motion to suppress would have been granted, the defendant

must show that there is a reasonable probability the result of the proceeding would

have been different if not for counsel’s error. Abdool v. State, 

220 So. 3d 1106


1112 (Fla. 2017) (holding that a failure to file a motion to suppress did not

undermine confidence in the outcome because “[t]he evidence that Abdool

committed first-degree murder is not limited to his statement to police or its

alleged fruits”). Moreover, an attorney cannot be constitutionally deficient by

failing to file a meritless motion. Johnston v. State, 

63 So. 3d 730

, 740 (Fla. 2011).

      The test for whether a defendant’s confession may be used as evidence

against him “is one of voluntariness, or free will, which is to be determined by an

examination of the totality of the circumstances surrounding the confession.”

Owen v. State, 

862 So. 2d 687

, 695 (Fla. 2003) (quoting Traylor v. State, 

596 So.


957, 964 (Fla. 1992)). A confession’s admissibility “depends on (1) whether

the interrogating officers engaged in coercive activity, and (2) whether that activity

                                        - 10 -
was sufficient to overcome the free will of the defendant.” State v. Morrison, 


So. 3d 204

, 215 (Fla. 2017) (quoting Baker v. State, 

71 So. 3d 802

, 814 (Fla.

2011)). It is not necessary that any direct promises or threats were made to the

accused, but to establish that a statement was involuntary, there must be a finding

of coercive police conduct. 

Baker, 71 So. 3d at 814


      Sanchez-Torres’s mother (Ms. Torres) testified that detectives showed her

an unsigned arrest warrant for evidence tampering and threatened to arrest her if

Sanchez-Torres did not talk to them. She testified that she spoke to Sanchez-

Torres the next day and told him about the purported threat. She testified that

Sanchez-Torres then asked to meet with the detectives and ultimately confessed to

Mr. Colon’s murder.

      Sanchez-Torres’s sister (Ms. Sanchez) testified that detectives questioned

her about finding the victim’s phone in Sanchez-Torres’s room. But although Ms.

Sanchez said she was shown unsigned arrest warrants, she testified that the

detectives did not threaten to arrest her. The detectives also testified that Ms.

Sanchez was never told she might be arrested.

      Sanchez-Torres has not demonstrated that the detectives’ conduct was

improperly coercive. The detectives did not threaten or mistreat Sanchez-Torres

during his requested interview, and although Sanchez-Torres mentioned during the

interview that he did not want his mother getting in trouble, the detectives made no

                                        - 11 -
offers or promises in exchange for his confession. See Blake v. State, 

972 So. 2d


, 844 (Fla. 2007) (“Before finding the confession inadmissible, Florida courts

have repeatedly required that the alleged promise ‘induce,’ be ‘in return for,’ or be

a ‘quid pro quo’ for the confession.”). In fact, Detective West testified that he did

not know if Sanchez-Torres even knew about the unsigned arrest warrants at the

time he confessed to Mr. Colon’s murder.

      As to the detectives’ conversations with Sanchez-Torres’s family members,

they did not tell Ms. Sanchez she might be arrested, and informing Ms. Torres she

could be arrested for tampering with evidence was not a coercive means of

extracting Sanchez-Torres’s confession because the detectives did in fact have

probable cause to arrest Ms. Torres. See Thompson v. Haley, 

255 F.3d 1292

, 1297

(11th Cir. 2001) (“Whether a threat to prosecute a third party was coercive depends

upon whether the state had probable cause to believe that the third party had

committed a crime at the time that the threat was made ….”). Prior to the

conversation in question, the detectives learned that Ms. Torres had made efforts to

destroy the victim’s cell phone when she discovered that her daughter had found

the phone in Sanchez-Torres’s room.

      Sanchez-Torres argues that the detectives committed felony extortion by

threatening to arrest Ms. Torres, but extortion is to “maliciously threaten” someone

for certain enumerated benefits, § 836.05, Fla. Stat. (2019), and Florida courts have

                                        - 12 -
held that “maliciously” means “intentionally and without any lawful justification.”

O’Flaherty-Lewis v. State, 

230 So. 3d 15

, 18 (Fla. 4th DCA 2017) (citing Dudley

v. State, 

634 So. 2d 1093

, 1094 (Fla. 2d DCA 1994)). Law enforcement officers

have a lawful justification for threatening to arrest individuals for violating the law.

         Because the record does not establish that Sanchez-Torres’s confession was

involuntary under the totality of the circumstances, we hold that a motion to

suppress the confession would not have been granted. Because defense counsel

cannot be deficient for failing to file a meritless motion, and because no prejudice

can result from failure to file a motion that would not have been successful, we

affirm the postconviction court’s denial of this ineffective assistance of counsel


   II.      Sanchez-Torres’s Petition for Habeas Relief

         Sanchez-Torres petitions this Court for a writ of habeas corpus, asserting

ineffective assistance of appellate counsel. Sanchez-Torres’s first claim is that his

appellate counsel was ineffective by failing to argue on direct appeal that the State

impermissibly sought the death penalty when the grand jury had only made

findings as to first-degree murder, but had not made findings as to any aggravating

circumstances for death penalty eligibility.3 Sanchez-Torres argues that Florida

      3. To the extent Sanchez-Torres is arguing that his charging instrument was
fundamentally defective, we have repeatedly rejected claims arguing that a
charging instrument must list aggravators that render eligibility for death. See,

                                          - 13 -
has demonstrated a continued practice of divesting grand juries of their important

functions and that “[o]ur state’s current protocol” is improper, and he insists that

Florida courts have shown a “disrespect for citizen jurors.” 4

      Despite the myriad assertions and arguments Sanchez-Torres raises

regarding the purpose and authority of a grand jury, with cited authority ranging

from Mendeleev’s work on the Periodic Table to Elizabeth Seager’s conviction for

witchcraft in 1662, the issue before us is actually a simple one. Sanchez-Torres

argues that his appellate counsel provided ineffective assistance by failing to argue

on direct appeal that a grand jury must make certain findings before the State can

seek the death penalty. The flaw in Sanchez-Torres’s argument is equally

straightforward: “The failure to present a novel legal argument not established as

meritorious in the jurisdiction of the court to whom one is arguing is simply not

ineffectiveness of legal counsel.” Steinhorst v. Wainwright, 

477 So. 2d 537

, 540

e.g., Hall v. State, 

246 So. 3d 210

, 217 (Fla. 2018); Pham v. State, 

70 So. 3d 485

496 (Fla. 2011); Rogers v. State, 

957 So. 2d 538

, 554 (Fla. 2007) (“Neither
Apprendi nor Ring requires that aggravating circumstances be charged in the
indictment.”). Sanchez-Torres insists, however, that the problem is not necessarily
with the charging document, but with prosecutors being allowed to seek the death
penalty without a grand jury finding proof of a death-eligible offense.

        4. Notably, these arguments could be construed as jurors’ rights claims. In
fact, the petition states that “both the accused and the citizens making up the grand
jury have rights at stake here that have been, and continue to be, stripped away
from them by the legislature with the consent of the courts.” Sanchez-Torres
argues, however, that he should have “the right to assert the third-party interests of
jurors and by extension – grand jurors.”

                                        - 14 -
(Fla. 1985); see also State v. Murray, 

262 So. 3d 26

, 46 (Fla. 2018) (holding that

appellate counsel was not deficient for failing to make a novel prosecutorial

misconduct claim on direct appeal); Thomas v. State, 

421 So. 2d 160

, 165 (Fla.

1982) (holding that counsel “need not be expected to anticipate developments in

the law which make possible the raising of novel issues”).

      Sanchez-Torres’s collateral counsel acknowledges that in Florida, neither the

legislature nor the courts have ever declared that the issues raised in this claim

constitute fundamental error or a deprivation of a defendant’s constitutional rights.

Because these novel arguments have never been established as meritorious,

appellate counsel was not ineffective for failing to raise them on direct appeal.

      Sanchez-Torres next argues that his appellate counsel was ineffective by

failing to argue on direct appeal that the trial court was bound to consider Sanchez-

Torres’s sentencing with a “presumption of life”—an espoused variant on the

presumption of innocence. Included in the petition is a hypothetical presumption-

of-life instruction, which the petition describes as “an amalgam of Standard

Instruction 2.1 and Standard Instruction 3.7 and adjusted to reflect the issues in the

sentencing phase.” The petition argues that appellate counsel failed to argue this

proposed instruction “or one similar to it” on direct appeal.

      However, Sanchez-Torres’s collateral counsel expressly acknowledges that

“[t]he issue of a jury instruction on the presumption of life does not appear to have

                                        - 15 -
been litigated in Florida.” Accordingly, as with Sanchez-Torres’s previous habeas

claim, we hold that appellate counsel was not ineffective for failing to raise a novel

argument on direct appeal. See 

Steinhorst, 477 So. 2d at 540


      Finally, Sanchez-Torres argues that appellate counsel was ineffective by

failing to argue fundamental errors on direct appeal regarding Sanchez-Torres’s

guilty plea and jury waiver. The habeas petition cites portions of the plea hearing,

arguing that Sanchez-Torres’s guilty plea was not intelligent or knowing because

he believed his attorneys would aggressively argue that he was not the shooter.

      This claim is meritless, for appellate counsel did in fact argue on direct

appeal that Sanchez-Torres’s plea was involuntary; counsel even argued that the

plea was not intelligent and knowing on the grounds that Sanchez-Torres allegedly

misunderstood what the State had to prove. 

Sanchez-Torres, 130 So. 3d at 670-73


      As to whether appellate counsel should have argued on direct appeal that

Sanchez-Torres’s plea was involuntary because trial counsel never explained the

consequences of a jury waiver, this claim is essentially asserting that on direct

appeal, appellate counsel failed to argue ineffective assistance of trial counsel. But

“[a]ppellate counsel may raise a claim of ineffective assistance of trial counsel

only where the ineffectiveness is apparent on the face of the record,” Stewart v.


880 So. 2d 529

, 531 (Fla. 2004), and it is not apparent from the face of the

record that trial counsel never informed Sanchez-Torres of the consequences of a

                                        - 16 -
jury waiver. Because this ineffective assistance of trial counsel claim would have

failed on direct appeal, appellate counsel was not ineffective for failing to raise the

claim. See 

Murray, 262 So. 3d at 46

(“Appellate counsel cannot be deemed

ineffective for failing to raise a meritless issue.”).


       For the reasons set forth above, we affirm the postconviction court’s order

denying in part and dismissing in part Sanchez-Torres’s third amended

postconviction motion, and we deny Sanchez-Torres’s petition for a writ of habeas


       It is so ordered.



An Appeal from the Circuit Court in and for Clay County,
     John H. Skinner, Judge - Case No. 102009CF000671000AMX

Robert S. Friedman, Capital Collateral Regional Counsel, Robert R. Berry and
Karin L. Moore, Assistant Capital Collateral Regional Counsel, Northern Region,
Tallahassee, Florida,

       for Appellant/Petitioner

Ashley Moody, Attorney General, and Michael T. Kennett, Assistant Attorney
General, Tallahassee, Florida,

       for Appellee/Respondent

                                          - 17 -

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