Mathis v. State

WINSOR, J. When Richard Mathis went to trial on charges of child sexual abuse, his defense attorney faced a daunting challenge. Mathis faced charges of (1) sexual battery on a child under twelve—“commonly known as capital sexual battery,” Roughton v. State, 185 So.3d 1207, 1208 (Fla. 2016); (2) unlawful sexual activity with a child between twelve and sixteen; and (3) unlawful sexual activity with a child aged sixteen or seventeen. All three counts related to the same victim—Mathis’s niece—but each covered a different time period. The latter two were second-degree felonies, but the first charge was the most serious: a conviction for capital sexual battery carries a mandatory life sentence. §§ 794.011(2)(a), 775.082(1), Fla. Stat. (2000). At trial, the niece testified that Mathis assaulted her when she was nine years old. He removed her from the room where, she slept, warning he would kill her if she told. And he raped her. That was the first time. The niece testified that “[i]t happened a lot, plenty of times,” but for years, she was too afraid to tell. Mathis raped her when she was twelve. He raped her again (this time on a school bus) when she was still under sixteen. He raped her again (this time with a gun in hand) when she was seventeen. One of the rapes left the underage niece pregnant with her uncle’s child. (DNA tests confirmed paternity.) After hearing all the evidence, the jury convicted Mathis on all three counts. The court sentenced him to the mandatory minimum of life for the capital sexual battery, fifteen years for the other counts. This is Mathis’s direct appeal. Mathis does not challenge his conviction for capital sexual 'battery, nor does he challenge the resulting life sentence. His sole argument here is that we should reverse his other two convictions based on ineffective assistance of counsel. According to Mathis, any reasonably effective attorney would have moved to dismiss those two charges based on the statute of limitations. The State,argues that there was no viable statute-of-limitations defense and that, even if there were, the particular circumstances of this case do not warrant reversal. We do not address the viability of the defense because we conclude that, even if the defense was available, Mathis cannot succeed in this direct appeal. Mathis’s claim of ineffective assistance of counsel is left for a rule 3.850 proceeding.1 “With rare exception, ineffective assistance of counsel claims are not cognizable on direct appeal.” Ellerbee v. State, 87 So.3d 730, 739 (Fla.2012). To meet the rare exception, a defendant must demonstrate not only ineffectiveness on the face of the record and indisputable prejudice, but also “an inconceivable tactical explanation for the conduct.” Morales v. State, 170 So.3d 63, 67 (Fla. 1st DCA 2015). Here, assuming there was a statute-of-limitations defense as to the lesser counts, it is conceivable that a reasonable attorney might strategically abandon it. From’ the beginning, a reasonable attorney would have understood that if convicted of capital sexual battery, Mathis would face a mandatory life sentence. A reason [106] able attorney also would have understood that Mathis could not credibly argue he never had illegal sexual contact with the victim; it was essentially undisputed that Mathis impregnated the girl when she was underage. A reasonable attorney would have understood that Mathis therefore would have been left to argue that, yes, he had sex with a child, but that the child was at least twelve years old.2 In light of all this, a reasonable attorney might have sought to avoid giving the jury only two choices—capital sexual battery and acquittal. Counsel might have strategically determined that Mathis could fare bettér if the jury had a third option— convicting him of a sex crime that would not result in a mandatory life sentence. Cf. Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) (noting that an “all-or-nothing choice” may “incr'ease[ ] the risk that the jury will convict ... to avoid setting the defendant free”), overruled on other grounds by Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). In some circumstances, waiving a defense is a good defense. Cf. Flowers v. State, 149 So.3d 1206, 1208 (Fla. 1st DCA 2014) (affirming conviction and noting that counsel admitted his trial strategy was to have the jury instructed on a time-barred, less serious offense); Dixon v. State, 53 So.3d 1242, 1242 (Fla. 2d DCA 2011) (affirming despite clear statute-of-limitations defense because waiver might have been tactical); Morris v. State, 909 So.2d 428, 431-34 (Fla. 5th DCA 2005) (affirming denial of motion to withdraw plea because of possible strategic reasons for counsel’s waiving statute-of-limitations defense to avoid harsher sentence). In this case, it is at least conceivable . that Mathis’s attorney strategically chose risking convictions on the lesser counts (notwithstanding any viable defense) to increase the chances of an acquittal on the most serious charge. Mathis stood comparatively less to lose with convictions on counts two or three, and perhaps much to gain. Under these circumstances, Mathis has not satisfied the heavy burden he faced in this direct appeal. AFFIRMED. ROBERTS, C.J., concurs; LEWIS, J., concurs in result with opinion. Footnotes [1] If necessary to resolve any subsequent rule 3.850 petition, the trial court can determine in the first instance whether the defense was viable.' [2] , That was essentially Mathis’s argument at trial. His attorney told the jury that the victim got pregnant and that "presumptively based on the evidence that you have heard and listened to[,] Mr. Mathis is the father.” He later argued that "I think that the State has likely met its burden as relates to Count 3,” the count that corresponded to the time Mathis impregnated the victim. Mathis has not challenged his counsel's strategy in making these arguments.