DEMARRIS G. MALOY

v.

STATE OF FLORIDA

GORDO, J. Demmaris Gregory Maloy ("Maloy”) appeals the summary denial of his Rule 3.850 motion for post-conviction relief based on ineffective assistance of counsel. We have jurisdiction. Fla. R. App. P. 9.140(b)(1)(D). We affirm.

Maloy was charged with possession with intent to sell cannabis, possession with intent to sell cocaine and possession of a firearm by a convicted felon. Because Maloy qualified as both a habitual violent felony offender and a violent career criminal, the State filed its notice of intent to seek enhanced penalties pursuant to section 775.084, Florida Statutes. During trial, Maloy entered a negotiated plea and was sentenced to five years of probation as a habitual violent felony offender. He did not appeal the conviction. Maloy violated his probation and the trial court sentenced him to the mandatory minimum of ten years' imprisonment as a habitual violent felony offender. Maloy filed a motion for post-conviction relief, claiming ineffective assistance of counsel regarding his plea deal.

The trial court summarily denied the motion, finding the record conclusively refuted Maloy's claims. This appeal followed.

Claims of ineffective assistance of counsel arising from a guilty plea are governed by the two-prong test set forth in Hill v. Lockhart, 474 U.S. 52 (1985). Under Hill, a defendant must demonstrate both that counsel's performance fell outside the wide range of reasonably competent professional assistance and that, but for counsel's alleged errors, there is a reasonable probability the defendant would not have entered the plea and would have insisted on going to trial. Id. at 57–59. In evaluating prejudice, courts consider the "totality of the circumstances,” including the likelihood of success at trial, the plea colloquy, and the disparity between the plea sentence and the maximum exposure at trial. Grosvenor v. State, 874 So. 2d 1176, 1181-82 (Fla. 2004).

During a detailed plea colloquy conducted in the middle of trial, Maloy affirmed under oath that he was satisfied with counsel's representation, that he had discussed the case and the plea with counsel, that he accepted counsel's advice, and that he had no complaints regarding counsel's performance. Such sworn statements refute later claims of ineffective assistance and coercion. See Middleton v. State, 603 So. 2d 46, 47 (Fla. 1st DCA 1992) (“[C]laims of ineffective assistance of counsel or coercion with regard to entry of a plea are deemed refuted by oral or written statements to the contrary contained in a negotiated plea.”); Davis v. State, 938 So. 2d 555, 557 (Fla. 1st DCA 2006) (“In the instant case, the appellant clearly states on record that he was satisfied with his attorney's services.

Thus, he cannot now assert that at the time of the plea's entry he had serious doubts about his attorney's effectiveness."). Maloy received a favorable sentence—five years' probation as a habitual violent felony offender—despite facing significant prison time if convicted at trial. Under these circumstances, he has not shown a reasonable probability that he would have rejected the plea and gone to trial. While Maloy seeks to rely on his attorney's subsequent disbarment to claim ineffective assistance of counsel, we decline his invitation to adopt a per se rule that such later disciplinary action alone establishes ineffectiveness. See White v. State, 464 So. 2d 185, 186 (Fla. 3d DCA 1985) (“[W]e hold that the appellant was not denied his right to counsel merely because his courtappointed attorney was suspended from the practice of law in this state. . . . [We] decline to adopt a per se rule that an attorney's suspension from the practice of law gives rise to a constitutional claim of denial of the right to counsel."); State v. Joubert, 847 So. 2d 1023, 1025 (Fla. 3d DCA 2003) ("[We] decline[] to adopt a per se rule that an attorney's suspension from the practice of law gives rise to a constitutional claim of denial of the right to counsel."); Bear v. United States, 777 F. 3d 1008, 1011 (8th Cir. 2015) (“[W]e expressly have declined to adopt a per se rule of ineffective assistance when 'the defendant was represented by a trained and qualified attorney, albeit one with licensing problems.” (quoting United States v. Watson, 479 F. 3d 607, 611 (8th Cir. 2007))); United States v. Mouzin, 785 F. 2d 682, 696–97 (9th Cir. 1986) (“[T]he fact that an attorney is suspended or disbarred does not, without more, rise to the constitutional significance of ineffective counsel under the Sixth Amendment.").

The relevant inquiry remains whether counsel's performance was constitutionally deficient and prejudicial.

The record shows that Maloy knowingly and voluntarily accepted the negotiated plea. He retained the same attorney to represent him during the probation-violation proceedings, further undermining any claim of deficient representation during the plea. Because Maloy's claims were conclusively refuted by the record, we are compelled to affirm. See Maxwell v. State, 937 So. 2d 216, 216 (Fla. 3d DCA 2006) (“The defendant appeals the trial court's summary denial of his motion for post conviction relief alleging ineffective assistance of trial counsel. The defendant's claims are . . . conclusively refuted by the record."); Rodriguez v. State, 219 So. 3d 751, 756 (Fla. 2017) (“We affirm the summary denial below because Rodriguez's claims are conclusively refuted by the record.").

Affirmed.