PER CURIAM.
Anton Krawczuk 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 of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
The facts of the underlying murder were detailed in this Court's opinion on direct appeal and are provided below:
Krawczuk v. State, 634 So.2d 1070, 1071-72 (Fla.), cert. denied, 513 U.S. 881, 115 S.Ct. 216, 130 L.Ed.2d 143 (1994). On appeal, Krawczuk raised four claims: (1) that the trial court erred in denying his motion to suppress his confession, (2) that the trial court failed to conduct a proper plea colloquy to ensure that his plea was knowingly and intelligently given, (3) that the trial judge improperly instructed the jury on the heinous, atrocious, or cruel aggravator and erred in finding that it applied, and (4) that the trial court erred in failing to find the existence of nonstatutory mitigation. This Court denied each of his claims, and found competent substantial evidence to affirm his conviction and sentence. Id. at 1073-74.
Krawczuk filed his initial motion for postconviction relief on October 3, 1995 under Florida Rule of Criminal Procedure 3.850. On March 15, 2002, he filed an amended motion to vacate, raising twenty-four claims. A Huff
After hearing the evidence, Judge James Thompson denied Krawczuk's motion in an expansive order.
In this issue Krawczuk argues that the postconviction court improperly denied his motion to disqualify the judge and that the judge demonstrated bias by relying on extra-record information. Because, Krawczuk cannot demonstrate bias, we disagree.
The question of whether a motion to disqualify is legally sufficient is a question of law, which is reviewed de novo. See Lynch v. State, 2 So.3d 47, 78 (Fla. 2008). To the extent that Krawczuk is arguing that the trial court improperly denied his motion to disqualify, we conclude that this claim is without merit. To the extent that Krawczuk is alleging that the trial court erred by relying on extra-record information in violation of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), we conclude that although there was error, the error was harmless.
A motion to disqualify is governed by section 38.10, Florida Statutes (2011), and Florida Rule of Judicial Administration 2.330. See Parker v. State, 3 So.3d 974, 981 (Fla.2009) (citing Cave v. State, 660 So.2d 705, 707 (Fla.1995)). When ruling on the motion, the trial judge is limited to determining the legal sufficiency of the motion:
Parker, 3 So.3d at 982.
First, to the extent that Krawczuk is arguing that Judge Thompson improperly denied the motion to recuse himself, his claim is without merit. To establish bias, Krawczuk must demonstrate that he "fears that he ... will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge." Fla. R. Jud. Admin. 2.330. In the instant case, the court properly denied Krawczuk's motion to disqualify. Nothing in the record indicates that Judge Thompson was biased or prejudiced. As discussed below, although Judge Thompson's actions were error, they were not indicative of bias. Judge Thompson provided multiple reasons for finding that Dr. Crown's testimony was not credible, one of which was that Dr. Crown had only briefly met with Krawczuk.
Next, to the extent that Krawczuk is alleging that the court improperly relied on extra-record information, there was error, but the error was harmless beyond a reasonable doubt. The United States Supreme Court has condemned the practice of judges using extra-record information to impose the death penalty. Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). Further, we have recognized the impropriety of such actions and have stated:
Porter v. State, 400 So.2d 5, 7 (Fla.1981) (citations omitted). Thus, it is well settled that if a trial judge uses information not stated in open court to make a determination that the death sentence is appropriate, he or she must give the defendant an opportunity to rebut the information.
We have found some instances of reliance on extra-record information to be harmless error:
Vining v. State, 827 So.2d 201, 209-10 (Fla.2002) (citation omitted) (quoting Lockhart v. State, 655 So.2d 69, 74 (Fla. 1995)); see also Consalvo v. State, 697 So.2d 805 (Fla.1996) ("Although we find that it was error for the trial court to utilize these out-of-court deposition statements, we find these errors are harmless beyond a reasonable doubt [because] the trial court here made reference to facts which were established at trial by evidence other than that referred to in the sentencing order."); Lockhart v. State, 655 So.2d 69, 74 (Fla.1995) (finding a Gardner error where "the sentencing order indicate[d] that the judge relied on information from the newspaper articles to support his finding of no mitigation" but also finding "given the overwhelming evidence supporting three aggravating factors, this error did not injuriously affect Lockhart's substantial rights"). We also find the error here harmless. Although Dr. Crown's testimony was provided to establish possible mitigation, two other experts testified regarding Krawczuk's mental health, which served as a part of the basis for Judge Thompson's findings.
We find it disconcerting for a judge, sitting as finder of fact in an evidentiary hearing, to perform his own research into the credentials of an expert witness. We strongly discourage trial judges from performing such actions in the future. There is no reason apparent to this Court for the trial judge to perform his or her own research on the credibility of an expert witness outside of open court. However, in this case, we find the error to be harmless beyond a reasonable doubt because (1) the information was not used to sentence Krawczuk, (2) the information was readily available, and (3) the court's order denying relief references facts that were established at the evidentiary hearing in addition to the extra-record information.
Krawczuk raises several claims of ineffective assistance of counsel. We find that the postconviction court properly denied relief on these claims.
Following the United State Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, the defendant must demonstrate both deficiency and prejudice:
Bolin v. State, 41 So.3d 151, 155 (Fla.2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986)).
Johnston v. State, 63 So.3d 730, 737 (Fla. 2011) (parallel citations omitted).
As this Court has said, "the obligation to investigate and prepare for the penalty portion of a capital case cannot be overstated." State v. Lewis, 838 So.2d 1102, 1113 (Fla.2002).
Orme v. State, 896 So.2d 725, 731 (Fla. 2005) (quoting Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)).
First, Krawczuk claims that counsel was ineffective for failing to investigate and present mitigation. Further, Krawczuk claims that counsel's failure rendered his waiver of mitigation in the penalty phase invalid. The lower court found counsel deficient for failing to discover mitigation related to Krawczuk's background, but found that Krawczuk was not prejudiced because he was emphatic that counsel not contact his family and probably would not have permitted counsel to present the information during the penalty phase. The postconviction court properly denied this claim.
Grim, 971 So.2d at 100 (quoting Koon, 619 So.2d at 250). We further noted:
Grim, 971 So.2d at 100. Ultimately, we found that the record did not support a claim of failure to investigate because counsel "did not latch onto Grim's desire not to present mitigation, but instead, repeatedly tried to dissuade him." Id.
Likewise, in Waterhouse, we found:
Waterhouse, 792 So.2d at 1184 (footnote omitted).
In each of these cases, we concluded that trial counsel could not be deemed ineffective for following their client's wishes not to present mitigation. "An attorney will not be deemed ineffective for honoring his client's wishes." Brown v. State, 894 So.2d 137, 146 (Fla. 2004) (citing Waterhouse, 792 So.2d at 1183); Sims v. State, 602 So.2d 1253, 1257-58 (Fla.1992); see also Sims v. State, 602 So.2d 1253, 1257-58 (Fla.1992) ("[W]e do not believe counsel can be considered ineffective for honoring the client's wishes"). The record demonstrates that Krawczuk would not permit his attorney to involve his family. Accordingly, counsel's ability was limited by the defendant's desire not to include his family. See Brown, 894 So.2d at 146. Therefore, we agree that counsel's actions could not be deemed ineffective. Id.
It is clear that there was significant mitigation available that was not uncovered by counsel. However, it is equally clear that Krawczuk repeatedly insisted that counsel not pursue mitigation and not involve his family. Further, the postconviction court found that the information that would have been presented by the family was available through Dr. Keown's report, which Krawczuk also refused to allow counsel to present. Because of Krawczuk's instructions to counsel not to involve his family, we find that Krawczuk cannot establish prejudice.
Next, Krawczuk combines three of his postconviction claims and argues that the prosecutor made inappropriate remarks during the trial, that the trial court improperly instructed the jury, and that he received ineffective assistance of counsel because she failed to object to the comments made by the prosecutor and failed to request a jury instruction on mercy. The lower court denied these claims finding that they were procedurally barred and without merit, that any error made by the prosecutor was harmless, and that Krawczuk could not establish deficient performance. Because Krawczuk's claim is not supported by the record and, even if it were, because Krawczuk cannot establish prejudice, the lower court properly denied relief on this claim.
Third, Krawczuk argues that counsel was ineffective for failing to object to the trial court's instruction that sympathy should play no role in their deliberations, this claim is without merit. The trial judge used the standard jury instruction, stating that "[t]his case must not be decided for or against anyone because you feel sorry for anyone or are angry at anyone." Fla. Std. Jury Instr. (Crim.) 3.10. Counsel cannot be deemed ineffective for failing to object to the standard instruction.
Fourth, Krawczuk argues that he received ineffective assistance of counsel when trial counsel failed to raise and litigate the voluntariness of his confession. The lower court granted an evidentiary hearing on this issue, but determined that Krawczuk was not entitled to relief because the claim was procedurally barred and without merit. Because Krawczuk is re-arguing the merits of the trial court's denial of the motion to suppress his confession, the claim is procedurally barred. His
Finally, Krawczuk argues that trial counsel was ineffective for failing to offer testimony of mental health experts and others at the hearing on the motion for suppression. The lower court properly found the claim was unsupported by the evidence or law. Specifically, the lower court found that trial counsel completely and fully litigated the motion to suppress and that Krawczuk presented no additional evidence at his postconviction evidentiary hearing that would have changed the court's denial of the motion to suppress.
Accordingly, we find that the lower court properly found that Krawczuk was unable to prove prejudice.
Krawczuk argues that at trial the prosecutor made several erroneous remarks that led the jury to believe that they had no choice but to return a recommendation for the death sentence. Krawczuk further argues that the trial court improperly instructed the jury, which compounded this error. Finally, Krawczuk argues that trial counsel was ineffective for her failure to object or otherwise attempt to correct these errors. Each of these claims must fail.
Turning to the prosecutor's remarks, Krawczuk claims that during voir dire and closing arguments, the prosecutor suggested that the law required the jury to recommend the death penalty if the aggravating circumstances outweighed the mitigating circumstances. Additionally, Krawczuk argues that the prosecutor suggested on multiple occasions that the jury should decide the case without regard for sympathy. The postconviction court correctly concluded that the claim was procedurally barred because trial counsel failed to object to the comments and the issue was not raised on direct appeal, nor did the remarks constitute fundamental error. See Rogers v. State, 957 So.2d 538, 547 (Fla. 2007) ("We have consistently held that substantive claims of prosecutorial misconduct could and should be raised on direct appeal and are thus procedurally barred from consideration in a postconviction motion.") (citations and internal quotations omitted); Lamarca v. State, 931 So.2d 838, 851 n. 8 (Fla.2006).
As for Krawczuk's claim that counsel was ineffective for failing to object to these remarks, we find no deficiency where counsel was not permitted to participate in the proceeding. As it relates to the prosecutor's comments regarding the jury's recommendation, we have said:
Anderson v. State, 18 So.3d 501, 517 (Fla. 2009). Further, we found that a defendant is "not prejudiced by the improper statements of the prosecutors [where] the juries were given the proper instructions for analyzing aggravating and mitigating circumstances." Anderson, 18 So.3d at 517. As noted by the postconviction court, the record indicates that the jury was properly instructed. Accordingly, we find that Krawczuk has not demonstrated prejudice.
Krawczuk claims that he is innocent of the death penalty because he received a disparate sentence even though he was as culpable or less culpable than Poirier, who received a sentence of thirty-five years. Because this claim was, or should have been, raised on direct appeal, the lower court correctly found that it was procedurally barred.
Lastly, we previously found that Krawczuk was the more culpable party. As summarized by the lower court's findings: (1) Krawczuk met the victim six months before the incident and started going to the victim's house three months prior, but Poirier had only been with Krawczuk to the victim's house one time prior to the murder; (2) Krawczuk initiated the events by suggesting they go to the bedroom, he initiated the roughhousing, he pinned the victim down, choked him, poured Crystal Vanish down the victim's throat, and poured water in; and (3) Krawczuk was older and bigger than Poirier, more aggressive, and Poirier was called Krawczuk's protégé. See Krawczuk, 634 So.2d at 1074 n. 5 ("Krawczuk `scouted the site to dispose [of] the body, made the arrangements with the victim to go to his house, physically strangled the victim with the co-defendant's assistance, placed the drain cleaner in the victim's mouth and steadied
With respect to Krawczuk's argument that his statement to the police was involuntary, the lower court properly found this claim procedurally barred because the issue was already considered and rejected by this Court on direct appeal. See Krawczuk, 634 So.2d at 1072 ("[W]e hold that the court's ruling on the motion to suppress is not cognizable on appeal.... [Even] if the issue had been preserved ... we would find it to have no merit."). Accordingly, Krawczuk's attempt to raise this claim anew is procedurally barred.
Krawczuk's single claim on petition for habeas corpus can be summarized as a complaint against this Court's proportionality review. The subparts to this claim are that (a) this Court failed to complete a meaningful proportionality review because it did not look to other cases, (b) this Court's review was hindered by the incomplete investigation into mitigating factors, and (c) appellate counsel did not raise disparate treatment on appeal. Because each of these subclaims should be denied, we deny the petition.
First, relating to Krawczuk's first two points, a petition for habeas corpus is not the proper method for raising a claim that could have been raised on appeal or in a postconviction proceeding. Mills v. Dugger, 559 So.2d 578, 579 (Fla.1990) ("Habeas corpus is not to be used for additional appeals of issues that could have been or ... were raised on appeal or in other postconviction motions."). Accordingly, Krawczuk's allegations regarding trial counsel's ineffectiveness and the lack of mitigation on the record are not properly before this Court. Additionally, they are a rehashing of his arguments in his postconviction appeal.
Further, to the extent that Krawczuk claims that this Court failed to perform a proportionality review, his argument is not supported by the record or caselaw. On direct appeal in the instant case, we stated:
Krawczuk v. State, 634 So.2d 1070, 1073-74 (Fla.1994). Thus, the Court found the death sentence appropriate. This Court has stated, "[A] proportionality review is inherent in this Court's direct appellate review and the issue is considered regardless of whether it is discussed in the opinion or raised by a party...." Patton v. State, 878 So.2d 368, 380 (Fla.2004). The Patton court further explained:
Patton, 878 So.2d at 380. Further, relating to the argument that the Court did not mention other cases in its review, we have said:
Booker v. State, 441 So.2d 148, 153 (Fla. 1983). Additionally, we have stated, "We reject the assertion that in our written opinion we must explicitly compare each death sentence with past capital cases." Messer v. State, 439 So.2d 875, 879 (Fla. 1983). Accordingly, Krawczuk's argument that this Court's failure to explicitly weigh the proportionality of his sentence in its opinion must fail.
Finally, as it relates to Krawczuk's third point and to the extent that Krawczuk argues that appellate counsel failed to raise his and Poirier's disparate sentencing, this argument is not supported by the record. Appellate counsel did mention Poirier's sentence in the initial brief although not as a distinct issue. Further, even if it had been raised as a distinct issue it would have been rejected by this Court because Poirier pleaded to, and was convicted of, a lesser offense. We noted in our opinion that Krawczuk was the more culpable defendant. See Krawczuk, 634 So.2d at 1073 n. 5. We have repeatedly upheld death sentences where a codefendant pleaded guilty and received a life sentence. See Smith v. State, 998 So.2d 516, 528 (Fla.2008); England v. State, 940 So.2d 389, 406 (Fla.2006); Kight v. State, 784 So.2d 396, 401 (Fla.2001) ("[I]n instances where the codefendant's lesser sentence was the result of a plea agreement or prosecutorial discretion, this Court has rejected claims of disparate sentencing."); Brown v. State, 473 So.2d 1260, 1268 (Fla.1985). We do not address the remainder of Krawczuk's petition because it is a reassertion of his claims on appeal of the denial of his postconviction motion.
For the foregoing reasons, we affirm the court's denial of Krawczuk's motion for postconviction relief. Additionally, we deny his petition for writ of habeas corpus.
It is so ordered.
CANADY, C.J., and LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.
PARIENTE, J., concurs in result with an opinion.
PARIENTE, J., concurring in result.
I concur in denying postconviction relief, but write to emphasize the importance of counsel conscientiously investigating all avenues of mitigation, even in light of a difficult defendant. The defendant claimed that his waiver of mitigation was neither knowing nor voluntary; I agree that postconviction relief on this issue was properly denied. However, I disagree with the majority's reasoning that Krawczuk failed to establish prejudice based on his refusal to allow counsel to contact his family. See majority op. at 205. Rather, when a defendant waives mitigation, the finding of prejudice must be centered on whether the waiver of mitigation is knowing and voluntary. See, e.g., Deaton v. Dugger, 635 So.2d 4, 8 (Fla.1993).
It is undeniably a challenge for defense counsel, faced with a client who states that he does not want to pursue mitigation or have the lawyer contact his family, to nevertheless comply with the duties that have been imposed by case law. However, because we are dealing literally with a life or death matter and a client who may not have yet faced the reality that the death penalty may be imposed, counsel's very weighty obligations do not end with the fact that the client expresses the desire to not present mitigation or contact family members. As was explained in Grim v. State, 971 So.2d 85, 100 (Fla.2007), despite the client's wishes, the lawyer appropriately "recognized he still had a duty to develop mitigation." Therefore, the lawyer in Grim did not "latch onto Grim's desire not to present mitigation, but instead, repeatedly tried to dissuade him." Id. Further, the lawyer uncovered a substantial amount of mitigation, obtained a mental health expert, and contacted several mitigation witnesses. For all of these reasons, we upheld the trial court's conclusion that that trial counsel conducted a reasonable investigation in light of Grim's decision to waive mitigation and determined that trial counsel's actions were not deficient and that Grim could not establish prejudice. Id. at 100-01; see also Waterhouse v. State, 792 So.2d 1176, 1183-84 (Fla.2001) (rejecting an ineffective assistance of counsel claim where the defendant refused to permit his attorney to present mitigating evidence and refused to meet with the mental health expert in light of the fact that his attorney had already investigated potential mitigation).
In addition, in Grim, despite the waiver of mitigation, the trial court ordered a presentence investigation report and appointed special counsel to investigate and present available mitigation. Grim, 971 So.2d at 90. In other words, not only did counsel act properly, but the court also proceeded diligently by taking the extra step of appointing special counsel. See, e.g., Muhammad v. State, 782 So.2d 343, 363-64 (Fla.2001) (approving the procedure that allows trial courts to call witnesses on their own to determine whether mitigating circumstances apply and granting trial courts the discretion to appoint special counsel to assist in discovering mitigation). These extra steps assist this Court in ensuring that a death sentence for a defendant who insists on waiving mitigation does not lead to the death penalty being arbitrarily imposed on any particular defendant. See Muhammad, 782 So.2d at 368-69 (Pariente, J., concurring specially); Russ v. State, 73 So.3d 178, 200-02 (Fla.2011) (Pariente, J., concurring).
At the evidentiary hearing in this case, Krawczuk presented testimony from his brother and stepfather that related to extensive abuse he had endured at the hands of his mother. However, at the time of the waiver, counsel had the report of Dr. Keown that indicated the abuse had occurred and that report had been furnished to Krawczuk. In addition, trial counsel had obtained military records and a psychiatrist's report, both of which had been given to Dr. Keown. Given the facts developed
Thus, I concur in the affirmance of the denial of postconviction relief.
Krawczuk, 634 So.2d at 1073 n. 5 (quoting trial court's order).
