Appellant, V. L.T. No. 84-CF-13346 Appellee. Florida Bar No. 0802743

IN THE SUPREME COURT OF FLORIDA

ROBERT JOE LONG,

Appellant, APPEAL NO. SCl2-103 v. L.T. No. 84-CF-13346 DEATH PENALTY CASE STATE OF FLORIDA,

Appellee.

ON APPEAL FROM THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

ANSWER BRIEF OF APPELLEE

PAMELA JO BONDI ATTORNEY GENERAL

KATHERINE V. BLANCO ASSISTANT ATTORNEY GENERAL Florida Bar No. 0802743 Concourse Center 4 3507 East Frontage Road, Suite 200 Tampa, Florida 33607-7013 Telephone: (813) 287-7910 Facsimile: (813) 281-5501 [email protected] [email protected]

COUNSEL FOR APPELLEE TABLE OF CONTENTS TABLE OF AUTHORITIES...... ii INTRODUCTION AND BACKGROUND...... 1 SUMMARY OF THE ARGUMENT...... 62 ARGUMENT...... 63 ISSUE I...... 63

THE TRIAL COURT PROPERLY DENIED THE MOTION FOR POST-CONVICTION RELIEF WHERE DEFENDANT LONG FAILED TO ESTABLISH DEFICIENT PERFORMANCE BY TRIAL COUNSEL AND RESULTING PREJUDICE UNDER STRICKLAND...... 63 ISSUE II...... 83

THE POST-CONVICTION COURT CORRECTLY SUMMARILY DENIED LONG'S CLAIM OF ALLEGEDLY IMPROPER PROSECUTORIAL COMMENTS AT THE PENALTY PHASE...... 83 CONCLUSION...... 86 CERTIFICATE OF SERVICE...... 86

CERTIFICATE OF FONT COMPLIANCE...... 86 TABLE OF AUTHORITIES

Cases

Allen v. State/Crosby, 854 So. 2d 1255 (Fla. 2003) ...... 85 Barnhill v. State, 971 So. 2d 106 (Fla. 2007) ...... 63 Boykin v. Alabama, 395 U.S. 238 (1969) ...... 66 Brown v. State, 894 So. 2d 137 (Fla. 2004) ...... 63 Connor v. State, 979 So. 2d 852 (Fla. 2007) ...... 83 Davis v. United States, 512 U.S. 452 (1994) ...... 81 Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, (1960) ...... 75 Florida Dep't of Transp. v. Juliano, 801 So. 2d 101 (Fla. 2001) ...... 68 Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551 (2004) ...... 82 Gaskin v. State, 737 So. 2d 509 (Fla. 1999) ...... 84 Godinez v. Moran, 509 U.S. 389-99, 113 S.Ct. 2680, (1993) ...... 76 Gore v. State, 846 So. 2d 461 (Fla. 2003) ...... 85 Grosvenor, 874 So. 2d 1176 (Fla. 2004) ...... 59, 63, 78 Hill v. Lockhart, 474 U.S. 52 (1985) ...... passim Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308 (1983) ...... 82 Lockhart v. Fretwell, 506 U.S. 364 (1993) ...... 81, 82 Long v. State, 517 So. 2d 664 (Fla. 1987) ...... passim

11 Long v. State, 529 So. 2d 286 (Fla. 1988) ...... passim Long v. State, 610 So. 2d 1268 (Fla. 1992) ...... passim Long v. State, 610 So. 2d 1276 (Fla. 1992) ...... 22 Marek v. State, 8 So. 3d 1123 (Fla. 2009) ...... 83 McMann v. Richardson, 397 U.S. 759 (1970) ...... 16 Meeks v. State, 382 So. 2d 673 (Fla. 1980) ...... 55 Parker v. North Carolina, 397 U.S. 790 (1970) ...... 16 Parker v. State, 873 So. 2d 270 (Fla. 2004) ...... 68 Premo v. Moore, 131 S.Ct. 733 (2011) ...... 68, 69, 74 Robinson v. State, 913 So. 2d 514 (Fla. 2005) ...... 63, 77 Spencer v. State, 842 So. 2d 52 (Fla. 2003) ...... 84, 85 State v. Owen, 696 So. 2d 715 (Fla. 1997) ...... 81 Strickland v. Washington, 466 U.S. 668 (1984) ...... passim Teffeteller v. Dugger, 734 So. 2d 1009 (Fla. 1999) ...... 84 Thompson v. State, 759 So. 2d 650 (Fla. 2000) ...... 84 Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497 (1977) ...... 82

Rules Fla. R. App. P. 9.210(a) (2)...... 86

111 INTRODUCTION AND BACKGROUND

This is the third time this defendant, Robert (Bobby) Joe

Long, has challenged his 1985 guilty plea in this Court.1 Long now asserts that his plea should be vacated because trial counsel allegedly failed to advise Long "about the waiver of appellate rights and the full ramifications of those waivers."

(Brief of Appellant at 48-49) .

Over the course of several months in 1984, Long abducted, sexually assaulted, and murdered several young women in the

1The first time, in 1985, Long argued, inter alia, that he did not know that he would be waiving a challenge to his confession. On December 11, 1985, the presiding judge, Judge Griffin, offered to grant Long's request to withdraw his plea and recessed the proceedings overnight to allow Long to make a decision. After an overnight recess, Long rejected the trial court's offer. On December 12, 1985, Long ratified his plea agreement, which waived any challenge to his confession or evidence. Thereafter, at a hearing on June 24, 1986, attorney Ellis Rubin, who had been appointed for the penalty phase, objected to the admission of Long's statements based on Long's equivocal request for counsel. (DA V11/1434) . On direct appeal, this Court affirmed the judgments of conviction on all cases and affirmed the life sentences, but vacated the death sentence on the M.S. murder and remanded for a new sentencing proceeding. Long v. State, 529 So. 2d 286 (Fla. 1988) [Long I]. The second time, on remand, Long sought to withdraw his guilty plea before resentencing. Long filed a pro se motion and attorney Robert Fraser was appointed to represent him. A hearing was held before Judge Lazzara on February 10, 1989. Trial counsel, Charles O'Connor, and the defendant both testified and Judge Lazzara denied the motion. On appeal following resentencing, Long argued that the trial court erred in denying Long's motion to withdraw his guilty plea. This Court denied relief in Long v. State, 610 So. 2d 1268 (Fla. 1993) [Long II]. 1 Tampa Bay area. However, Long released one of his kidnapping/sexual assault victims, L.McV., alive, and she provided critical information leading to the investigation and prosecution of Long. Detectives obtained an arrest warrant for

Long and a search warrant for his apartment and car. On

November 16, 1984, Long was arrested pursuant to the warrant and waived his Miranda rights. After Long gave a full confession in the L.McV. case, Long was shown photos of the recent murder victims. Long made an equivocal request for counsel, the interrogation continued and Long confessed to eight murders in

Hillsborough County (13th JudiCial CirCuit) and One murder in

Pasco County (6th JudiCial CirCuit) . LOng went to trial on the

Pasco homicide in the spring of 1985; the motion to suppress his confession was litigated at trial and on direct appeal.2

2The trial court in Pasco County denied Long's motion to suppress his confession. On direct appeal in the Pasco case, this Court ruled that law enforcement were required to clarify Long's equivocal request for counsel and noted, "[w]ithout this equivocal request for counsel, we would find this confession voluntary and admissible." Long v. State, 517 So. 2d 664 (Fla. 1987). The United States Supreme Court subsequently issued Da vis v. Uni ted Sta tes, 512 U. S. 452, 114 S . Ct . 2350 (1994 ) , which held that police are not required to cease questioning if a suspect makes an ambiguous or equivocal request for counsel. In State v. Owen, 696 So. 2d 715, 720 (Fla. 1997), this Court ruled that the principles announced in Davis applied to the admissibility of confessions in Florida and receded from several prior cases, including the Pasco County Long case, regarding the equivocal request for counsel. 2 In September of 1985, Long entered a plea agreement on the eight Hillsborough County homicide cases. As a result of his guilty plea, Long waived any challenge to his confession3 and evidence and the State was limited to seeking the death penalty in only one Hillsborough homicide case -- the murder of M.S.

PRELIMINARY STATEMENT ON RECORD REFERENCES

References to the direct appeal record will be designated by the letters DA followed by the appropriate page number.

References to the resentencing record will be designated by the letters RS followed by the appropriate page number. References to the current post-conviction record will be designated by the letters PCR followed by the appropriate page number.

STATEMENT OF THE CASE AND FACTS

1985 Plea Proceedincys and Direct Appeal:

On September 23, 1985, Long entered his guilty pleas before

Hillsborough Circuit Judge Griffin. (DA 1778-1800). Long was present with his attorney, Assistant Public Defender Charles

O'Connor, and the plea colloquy included the following:

Mr. Long, before you sign that, I need to ask you some questions. Hold up your

3Long entered his guilty plea in 1985. Six years before Long's plea, this Court held that a confession may not be considered dispositive for purposes of an appeal after a nolo contendere plea. See, Brown v. State, 376 So. 2d 382 (Fla. 1979). 3 right hand, sir. You'll have to hold them both as high as you can.

(Whereupon, the Defendant was duly sworn.)

THE COURT: All right, sir. Have you had the opportunity to read the written and typed plea agreement which is now being presented to you?

THE DEFENDANT: Yes, sir.

THE COURT: Have you had it explained to you by your counsel?

THE DEFENDANT : Yes .

THE COURT: All right, sir. Let me ask you some other questions. Do you understand, sir, that you do not have to enter into this plea agreement at this time?

THE DEFENDANT: Yes.

THE COURT: You may persist in the not guilty pleas and you have the right to be tried on each of these cases by a jury of your peers from this county, and at that jury trial you'd be given all the rights afforded to a defendant under our criminal justice system including the right to face any witnesses called against you and that your counsel would have a right to cross- examine those witnesses. You would have the right to testify on your own behalf if you wanted to, but would not be required to.

Do you understand that by signing this plea agreement you have knowingly and willingly waived your right to a jury trial?

THE DEFENDANT: Yes, I do.

THE COURT: Do you understand that, sir?

4 THE DEFENDANT: (Nodding head af firmatively. )

THE COURT: Are there any questions you wish to ask the Court at this time of the plea agreement which is before you?

THE DEFENDANT: No, sir.

THE COURT: Have you been offered anything, promised anything, or forced in any way to enter into this plea agreement?

THE DEFENDANT: No.

THE COURT: All right, sir. Do you feel it's in your best interest at this time to enter into this plea agreement affecting the cases that are now before you as the numbers are typed on that plea agreement?

THE DEFENDANT: Yes.

THE COURT: All right, sir. Mr. O'Connor, do you feel it's in your client's best interest to enter into this plea agreement as it's now before the Court?

MR. O'CONNOR: Yes, sir.

(DA 1781-1783) (e. s.) * * * THE COURT: All right, sir.

Mr . Long do you understand, sir, -- let me see the plea agreement. Have you actually read this plea agreement, sir?

THE DEFENDANT: I read over it, yes, sir.

THE COURT: All right, sir, do you understand the sentences that are being agreed to on all of these cases, sir?

5 THE DEFENDANT: Yes, I do.

THE COURT: Do you understand that there will be a second phase in apparently only this one case; is that correct?

MR. O'CONNOR: Yes.

MR. BENITO: Yes, sir.

THE COURT: 84-13346-B, where the victim was [M.D.S.], there will be a jury impaneled for the purpose of rendering to the Court an advisory opinion as to whether to impose a sentence of death or life without possibility of parole for twenty- five years as to Count III of that case. Do you understand that, sir?

THE DEFENDANT: Yes, sir.

THE COURT: All right, sir. With those questions on the record and if it is your desire to do so at this time, I'll ask you to sign that with your proper signature.

THE COURT: All right. Anything else, gentlemen?

MR. BENITO: Judge, I believe at this time if the Court is willing to accept the negotiation as in the earlier cases, other than [M.S.], I'd ask the Court to impose a sentence in those particular cases at this particular time.

THE COURT: Any objection, Mr. O'Connor?

MR. O'CONNOR: No, Your Honor. He's previously been convicted of a felony so we would waive any presentence investigation. We can show no legal cause why sentence cannot be imposed on the charges, except for the [M. S. ] case, today.

6 THE COURT: Hand me the plea negotiation, please.

All right. Mr. Long, you've already been sworn. You are Robert Joe Long; is that correct?

THE DEFENDANT: Really it's Bobby, but, yes.

THE COURT: You're also known as -- or legally you're Bobby Joe Long?

THE DEFENDANT: Yes, sir.

(DA 1788-1789) .

The trial court adjudicated Long guilty and imposed sentences on Hillsborough County cases 84-13343B, 84-13344B, 84-

13345B, 84-13347B, 84-13348B, 84-13349B, 84-13350B, 84-13310C,

84-4213E and 84-13346B (DA 1790-1793) . Trial Counsel stipulated to a factual basis for the pleas. (DA 1794) . Long confirmed his awareness of the maximum sentences:

MR. BENITO [Prosecutor]: Further, Judge, as to the maximum penalties that the Court could have imposed in these particular cases if you need to bring those to the Defendant's attention at this time. THE COURT: Do you understand, sir, that in each of the cases here that the Court could have imposed a sentence of death as to the maximum penalty? Do you understand that, sir?

THE DEFENDANT: Yes, sir. MR. BENITO: As to the kidnapping and the rapings, the kidnapping was a first

7 degree felony punishable by life, and the sexual battery counts in the Indictments and in the Informations were a life felony.

THE COURT: Do you understand, Mr. Long, that the penalties that could have been imposed by this Court were those read into the record by Mr. Benito at this time?

THE DEFENDANT: Yes, sir. THE COURT: Do you fully understand that, sir?

THE DEFENDANT: Yes, I do. THE COURT: Anything else? MR. O'CONNOR [Defense Counsel]: Does the Court wish to make inquiry concerning medications and other potential mind- altering substances? THE COURT: I probably should. Good suggestion. Mr. Long, at this time do you feel that you understand all the proceedings that are going on in the court at this time?

THE DEFENDANT: Yes.

THE COURT: All right, sir. Prior to today' s proceedings, have you been placed on any kind of medication in the last twenty- four hours?

THE DEFENDANT: No.

THE COURT: All right, sir. Have you taken any kind of intoxicants or barbituates [sic] or anything that would alter your mind state so that you would not understand the proceedings today?

THE DEFENDANT: No, sir.

8 THE COURT: Are there any other questions that you wish to ask the Court about the proceedings or the sentences that have been read into the record or the pleas that have been . . . (DA 1794-1796)

Long indicated that he was satisfied with the services of counsel. (DA 1796-97) .

On December 11, 1985, Long appeared before Judge Griffin for jury selection at the penalty phase. (DA 1574-1643) . That day, Long indicated that he would not have entered a plea if he had known that one of his expert witnesses for the penalty phase, Dr. Morrison, was not going to be available. (DA 1593) .

Long also asserted that the plea agreement was not explained, and that attorney Brian Donerly handed him the thing and Long was distracted. (DA 1596) . Long claimed his attorneys did not go over the deal with him. Long conceded that he had confessed to eight murders in Hillsborough County and that it was "more than likely" he would have faced eight possible death sentences had he gone to trial. (DA 1603) . Long agreed it was a "big part of the deal" to minimize the opportunity the State would have to seek the death penalty. Long maintained that if he'd known he was giving up the right to appeal his confession, giving up appellate rights, he wouldn't have agreed to it. (DA 1604).

Attorney Robert Norgard, who was then an assistant public defender who represented Long on the Pasco County charges,

9 testified that while talking to Long about the Pasco County appeal, they also had a discussion about the plea that Long had entered in Hillsborough County in September. Norgard told Long that by entering a guilty plea he wouldn't be allowed to appeal, but Long indicated that it was his understanding that as part of the plea agreement, Long could still appeal. (DA 1611) . After hearing argument, Judge Griffin granted Long permission to withdraw his guilty pleas. (DA 1635). The decision rested with

Long to either continue with the plea or to withdraw from it.

After a conference, the parties agreed to a 24 hour continuance, which the trial court approved. (DA 1636-1639).

The following day, December 12, 1985, Long and his attorney, Mr. O'Connor, returned to court. It was announced that Long had elected not to withdraw the previously entered pleas of guilty. (DA 1757-1777) . Long stated that he wanted to enter into the plea agreement previously entered into and read into the court record, that he had time to seriously consider the consequences of the withdrawal of the motion to withdraw the previously entered plea of guilty, that he had discussed it with his attorney, and that he had confidence in the advice given to him by Mr. O'Connor and his associates in the Public Defender's office. (DA 1760) . Long felt that it was in his best interest to reiterate the plea agreement previously entered into; the computation of the sentences to the eight charges and sub-

10 charges had been thoroughly explained to him and he had no questions about it. (DA 1761) . Long concurred with the prosecutor's recitation of the sentences. (DA 1762-1763). Long understood that he could appeal the issues arising in the penalty phase and that he was waiving the right to appeal the confession. (DA 1764) . Long understood that the plea agreement was not based on a guarantee of a forensic psychologist being one of his expert witnesses at the penalty phase. (DA 1765).

On Long's direct appeal, this Court described the chronology of events and then analyzed the validity of Long's guilty plea. Long v. State, 529 So. 2d 286 (Fla. 1988) (Long

I). This Court noted that after Long's entry of a plea agreement with the State on September 23, 1985, and adjudication on the Hillsborough cases except the M.S. murder charge, Long moved to withdraw from the plea agreement on December 11, 1985.

Long testified about an earlier misunderstanding on the right to appeal his confession. The trial court determined that Long should be allowed to withdraw his previously entered guilty pleas. Long I, 529 So. 2d at 287-289. The trial court agreed with defense counsel's assessment that the court had authorized the defendant to elect whether he wished to continue on the previously-entered pleas of guilty or affirmatively wished to elect to withdraw them. After an overnight continuance, Long

11 returned and elected not to withdraw his previously-entered pleas of guilty. This Court quoted from that inquiry:

THE COURT: All right, sir. Is it your intention to, not to withdraw your guilty pleas and to reiterate the plea agreement that was previously entered into and read into the court record by this Court at an earlier date?

THE DEFENDANT: Yes, sir.

THE COURT: All right, sir. Have you had time to seriously consider the consequences of that withdrawal of your motion to actually withdraw your previously-entered plea of guilty? Have you thoroughly discussed it with your attorney?

THE DEFENDANT: Yes, sir. That is about all I have thought about for the last forty- eight hours.

THE COURT: I can presume so. Do you feel that you have confidence in the advice that has been given to you by Mr. O'Connor and any of his associates from the Public Defender's Office?

THE DEFENDANT: Yes, sir.

THE COURT: All right, sir. Do you feel that it's in your personal best interest, after thinking about it over this period of time, to reiterate the plea agreement that was previously entered into?

THE DEFENDANT: Yes, I do.

THE COURT: All right, sir. Another point that was at issue was, that you were concerned about, was a preservation of your

12 right to appeal the matter of the confession.

THE DEFENDANT: Yes, sir.

THE COURT: There was a great amount of discussion on that yesterday.

Do you understand, sir, that if I allow this plea bargaining to go forward . . . that you are giving up your right to appeal on any issues in these matters?

Do you understand that, sir?

THE DEFENDANT: On any issues?

THE COURT: On any issues, yes, sir.

THE DEFENDANT: I wasn't aware of that.

MR. BENITO [DEFENSE ATTORNEY][sic]: On any issues as to . . . this particular plea agreement, if any appellate issues arise in the second phase, you can appeal that.

THE DEFENDANT: Okay.

THE COURT: Obviously. Maybe I misworded it. Anything that is behind us.

THE DEFENDANT: Okay.

THE COURT: We are not talking about the punishment issue we are going to try this week.

THE DEFENDANT: Yes, sir, I understand that.

THE COURT: Especially, the matter of the confession, that you are waiving your right to appeal that.

Do you understand, sir?

THE DEFENDANT: Yes. Yes, I do.

13 THE COURT: All right, sir. Also, one of the issues that you mentioned yesterday was that you felt that you based your agreement to the plea bargain on the fact that you would have a forensic psychologist, Doctor Helen Morrison, specifically, in this case, here to testify as a keystone witness for you at this second phase of this trial. I believe that is what you indicated to me.

THE DEFENDANT: Yes, sir.

THE COURT: I made comments on that, too. Do you understand, sir, that there is no guarantee when we come to the trial of the second phase of this case involving [M. S . ] , that this plea agreement is not based on a guarantee of a forensic psychologist being one of your expert witnesses at this penalty phase whenever it' s heard.

Do you understand that?

THE DEFENDANT: Yes, I do.

THE COURT: All right, sir. So that would not be an issue at any other time . Do you understand?

THE DEFENDANT: Yes.

Long I, at 289-290.

On July 8, 1986, Long attended a hearing, this time with successor counsel for the penalty phase, Mr. Rubin (DA 1644-

1683).2 Before the penalty phase, Mr. Rubin filed a motion to set aside the plea agreement, claiming that it provided for a

2Prosecutor Benito also noted that in three of the murder cases against Long there was strong circumstantial evidence including fibers, hair, blood and the tracks, even without the confession. (DA 1671) .

14 waiver of the right to contest the admissibility of unconstitutionally obtained statements and evidence. Counsel argued that the plea agreement directly affected Long's right to a fair penalty phase because it expressly provided for the introduction into evidence of Long's confession and the knife discovered pursuant to the confession. The trial court denied the motion to set aside the plea agreement. Long I, at 290-291.

On direct appeal, this Court upheld the validity of the plea and explained:

The principal point of appellant' s argument is that, because the confession' s admissibility was in question, the plea agreement must be invalidated. We disagree. In this case, appellant received multiple life sentences for each of the other seven murders and eight sexual battery offenses with which he was charged in Hillsborough County, all but one of which were concurrent sentences, and an agreement not to use those convictions in the penalty phase of this proceeding. Appellant entered the plea after extended discussions with counsel and the court. On its face, the plea agreement reflects that the number of possible offenses in Hillsborough County for which a death sentence could be imposed was reduced from seven to one . The record clearly reflects that appellant made an informed choice with full knowledge that the admissibility of the confession was an issue to which he was waiving his appeal rights .

The guilty plea itself is a confession. Appellant is arguing that, because the confession entered into on November 16, 1984, was later invalidated, see, Long v. State, 517 So. 2d 664 (Fla. 1987), the confession by guilty plea entered on December 12, 1985, should also be declared invalid.

Long I, at 293

15 After citing Parker v. North Carolina, 397 U. S. 790 (1970) and McMann v. Richardson, 397 U.S. 759 (1970), this Court concluded:

There is no question from our review of this record that appellant' s decision to plead guilty, after consulting with his attorney, was a tactical decision. Under this plea agreement, if counsel could obtain a jury recommendation of life because of appellant's mental problems, a life sentence could probably be sustained and appellant would not be subject to be tried for any other offenses in Hillsborough County for which the death penalty could be imposed. We find no basis in this record to show that appellant' s counsel was incompetent or ineffective. Under the facts, the plea agreement was clearly voluntary and entered with appellant' s full understanding that he was expressly waiving his right to challenge the confession's admissibility. To accept appellant' s argument would mean that there never could be an express waiver of prior legal challenges in pretrial matters by a guilty plea. [C As reiterated above, that is not the law. Since we have upheld the validity of the plea, appellant's other related claims are without merit.

Long I, 529 So. 2d at 292-293 (e.s.)

1989 Motion to Withdraw Plea, Resentencing and Appeal: On direct appeal, this Court remanded for a new sentencing proceeding. On remand, a hearing was held on February 10, 1989, before the Honorable Richard A. Lazzara. Long was represented by new counsel, Robert Fraser. Long again sought to withdraw his plea. (RS V7/1-116) . Defense counsel contended that Long

16 didn't get the benefit of the bargain he entered into and the appropriate remedy was to withdraw the plea.4 (RS V7/49) .

Long testified that he had never read the plea bargain containing his signature and attorney O'Connor only verbally told him of its conditions. (RS V7/55). Long assumed that the other seven cases in the guilty plea couldn't be used against him in any court anywhere and he acknowledged that he entered the plea agreement in order to limit his exposure to the death penalty. (RS V7/64). Long -- after conferring with attorney

Fraser - added another reason for entering the pleas:

DEFENDANT: Another part of the reason was I didn't want to go through eight murder trials. I just didn't want to go through it. Just like I don't want to come down here for all these hearings.

(RS V7/65)

Long conceded that attorney O'Connor had explained to him that by entering the plea agreement, Long limited his exposure to the death penalty. Long acknowledged that after the one case

4Resentencing counsel, Mr. Fraser, believed that this Court's decision on direct appeal and the law of the case doctrine precluded reconsideration of some of Long's challenges to his guilty plea. Nevertheless, Judge Lazzara allowed the defense to adopt the additional issues that Long alleged he didn't know he was giving up on appeal, including that the "[D]efendant waives right to confession, the admissibility of evidence seized from his car or at or near his apartment, and specifically waives his right to contest the admissibility of a knife found in a wooded area near the apartment in Sentencing Hearing Case No. 88- 13446B." (Hearing, February 10, 1989, RS V7/109). 17 in Hillsborough County, they wouldn't be coming back for more trials and that would satisfy his concerns. Long added that attorney O'Connor also didn't want to go through eight murder trials. (RS V7/66). Long confirmed that Judge Griffin allowed him the opportunity to withdraw his plea in December [1985] and gave him 24 hours to make up his mind. (RS V7/67) . After the hearing with Judge Griffin, Long was aware that he was waiving the admissibility of the confession. Long claimed that he was not aware he was waiving the appeal of evidence from his apartment, waiving appeal of evidence from his car and waiving issues pertaining to a knife used in the [M.S.] sentencing proceeding. Accor.ding to Long, O'Connor would be incorrect if he testified he went over the agreement with Long. (RS V7/69).

Attorney Charles O'Connor testified. (RS V7/75-91).

O'Connor represented Long in September of 1985 on eight charges of first degree murder in Hillsborough County to which Long had confessed. Pursuant to his advice, Long entered into a plea agreement on the eight homicides, which Long signed on September

23, 1985. (RS V7/76). At the time Long signed his plea agreement in Hillsborough, Long already had been sentenced to death in Pasco, a fact of which O'Connor was aware. (RS V7/77).

O'Connor testified that he went over the agreement with

Long prior to Long's signing it; O'Connor was satisfied that

Long understood the agreement as it applied to him at the time.

18 (RS V7/78) . In December of 1985, Long attempted to withdraw his plea and Judge Griffin allowed Long the option to consider over a 24 hour period whether to withdraw the plea. O'Connor conferred with Long and, in the presence of other attorneys in the office, spent a substantial period of time explaining the consequences of withdrawing the plea. Long elected to continue with the plea in place. O'Connor insisted that he went over the plea agreement prior to Long signing it. (RS V7/79) . O'Connor testified that he was trying to avoid a situation of having four or five death sentences in place; he sought to minimize Long's exposure to the death penalty in Hillsborough County for those eight cases . He explained that recommendation to Long and Long elected to follow that approach. (RS V7/80). O'Connor knew there were possible problems with the admissibility of Long's confession; O'Connor went to and listened to the argument of

Long's defense attorneys in Pasco County and was familiar with their position and how it was argued. O'Connor was apprehensive that the confession would be sustained. (RS V7/82; 88).

In addition, O'Connor was aware that Long's automobile had been dismantled and Long' s apartment had been completely "torn apart" and transported to an FBI lab. O'Connor was aware that there had been numerous fibers found in the car and on the remains of some of the victims which were microscopically indistinguishable from the fibers in the car; that the tires on

19 the car at some of the scenes had left possible discernable marks on the ground and the tires were of a relatively unusual nature; that some of the microscopically indistinguishable hair on either Long or a victim was found in the car. (RS V7/83) . To his knowledge, O'Connor did not make any legal or factual misrepresentations to Long. Long made the final decision to accept the plea agreement. (RS V7/84).

O'Connor thought that if the confession was sustained and the conviction in Pasco County stood, so be it. If the Pasco

County conviction fell, O'Connor told Long that the aggravation

[the V.J. murder conviction in Pasco County] would undermine the

Hillsborough County death penalty. (RS V7/86-87) . There was a disagreement among the various lawyers about whether Long's confession "would stand up" on appeal; O'Connor thought it would and the Pasco lawyers thought the Pasco conviction would be overturned on that basis. (RS V7/88). O'Connor was trying to avoid five or six death sentences against Long. (RS V7/89).

Long repeated that he never read the plea agreement. (RS

V7/92). Long admitted reaffirming the plea in December after

Judge Griffin allowed him 24 hours to reconsider. (RS V7/95-96) .

Judge Lazzara found this was a credibility issue (RS

V7/113) and concluded:

I'm convinced that based on everything that I know in this case, based on the reading of the plea 20 agreement, the transcripts of these proceedings that occurred before the Court -- or before Judge Griffin, the testimony that I've heard from Mr. O'Connor and Mr. Long that he knew full well the parameters of all aspects of this particular plea agreement, and he freely, voluntarily, knowingly and intelligently entered into it, and, therefore, the plea agreement shall stand, and I'll deny your Motion.

(RS V7/115-116)

On resentencing appeal, Long v. State, 610 So. 2d 1268

(Fla. 1992) (Long II), this Court again rejected a claim that

Long should be allowed to withdraw his guilty pleas. This Court noted:

Upon remand of this case, and before the new penalty phase proceeding, Long again challenged his guilty plea in a pro se motion before the trial court. He asserted that the consequences of the plea had not been fully explained to him. At the motion hearing, Long testified and set forth his claims before the trial judge. The trial judge denied the motion but granted a change of venue for the new penalty phase proceeding.

Long II, 610 So. 2d at 1269-70 (e.s.)

This Court, after reviewing the resentencing record, including the hearing conducted February 10, 1989 (RS V7/1-116;

See also, PCR V9/1538-1589), denied relief:

In his first claim, Long asserts that he should be entitled to withdraw his guilty pleas. He claims he was not told that his confessions and pleas could be used against him in his Pasco County case as Williams rule[fn2] evidence to convict him and as 21 aggravation in the penalty phase of that case. He also contends that his attorney led him to believe that the other Hillsborough County homicides could not be used against him in any court.

We fully articulated why Long' s plea agreement was valid in our decision in Long v. State, 529 So. 2d 286 (Fla. 1988), and we reiterate here our conclusion that Long' s guilty plea was valid. The record clearly reflects Long' s understanding that the convictions occurring before the time he entered into the plea agreement could be used against him in aggravation. Long is an intelligent defendant, and he entered the plea agreement with full knowledge of his prior convictions . His decision to plead was based on a reasonable defense theory to avoid the imposition of the death penalty in the other murders and to escape the death penalty in this case by establishing that he was a severely mentally ill individual.

Long's claim that he was not told that his confessions and pleas could be used against him in his Pasco County case as Williams rule evidence and as aggravation in the penalty phase if that case was retried is moot. In our decision in Long v. State, 610 So. 2d 1276 (Fla. 1992), issued contemporaneously with this opinion, we reversed Long's Pasco County conviction, ln . part on the ground that his Hillsborough County pleas and confessions were improperly introduced into evidence in that case. Additionally, we held that, upon remand, Long's pleas and confessions could not be used against him in aggravation during a new penalty phase proceeding. We therefore deny this claim.

Long II, 610 So. 2d at 1274 (e.s.)

22 Post-Conviction Proceedings: The instant appeal relates to Long's Amended Rule 3.851

Motion to Vacate, filed in March of 2003. (PCR V5/797-828). A case management conference [Huff] hearing was held on February

9, 2004. (PCR V5/874-915). On April 6, 2004, the trial court entered a written order granting an evidentiary hearing on two claims: Claim II (Ineffective Assistance of Counsel and

Involuntary Plea) and Claim III-3 (Guilty plea not knowingly, voluntarily or intelligently made). (PCR V5/856-873).

At the evidentiary hearings conducted in 2011, the parties did not dispute that three of Long's original trial attorneys

(Charles O'Connor, Brian Donerly and Ellis Rubin) are deceased.

The following witnesses testified in post-conviction: Attorney

Robert Fraser (Resentencing Counsel) (PCR V13/59-79); Robert

Long, the defendant (PCR V13/90-189); Tony Webb (Investigator,

Public Defender's Office) (PCR V14/205-223); Attorney Craig

Alldredge (Assistant Public Defender who assisted trial counsel

[O'Connor and Donerly] with psychological aspects of the case)

(PCR V14/224-250); Dr. Robert Berland (forensic psychologist who evaluated Long in 1985) (PCR V14/252-288); Dr. Randy Otto

(forensic psychologist who evaluated Long in 2008) (PCR V14/289-

326); and Attorney Randall Grantham (Long's co-counsel on the

Pasco County murder case) (PCR V15/335-358).

23 The trial court denied relief in a detailed written order entered on November 28, 2011. This order of November 28, 2011 summarized the allegations in Claims II and III-3 as follows:

In claim II, Defendant alleges that counsel was ineffective for failing to explain to him how his history of brain damage and other "disorders" could have been used as a defense to the charges against him. He maintains that his brain damage and disorders substantially impaired his ability to fully understand the consequences of a plea agreement, especially in light of counsel's failure to make extraordinary efforts to provide clear and thorough explanations of the consequences of the plea. Defendant further contends that his plea must be considered involuntary given the omissions of counsel in failing to fully: (1) explain its consequences, 2) review the written agreement with him or even allow him to read it, and (3) carefully assess whether, in light of his brain damage, medications, and mental illness, Defendant was even able to adequately understand and appreciate all the consequences of the terms of the plea agreement. Moreover, Defendant claims counsel was ineffective for utilizing undue, intense, and inappropriate emotional pressure and even "threats" and intimidation to persuade him to enter and then later to not withdraw the plea.

(PCR V7/1176-1177; 1213-14).

In claim III-3, Defendant reincorporates the factual allegations asserted in claim II and alleges his plea was not knowing and voluntary because his brain damage, other disorders and psycho-tropic medications influenced and impaired his ability to make a rational decision about his guilty plea. Additionally, those factors also affected his ability to meaningfully confer with counsel when he had the opportunity to withdraw his plea. Defendant further alleges counsel had a conflict of interest and did not want to proceed on all the trials, and placed undue

24 pressure upon him to enter the guilty plea and not withdraw the plea once it had been entered.

(PCR V7/1177; 1214)

The post-conviction court addressed, in fact-specific detail, the testimony and evidence presented at the hearing and set forth a comprehensive written order denying relief. The post-conviction court's final order states, in pertinent part:

Prior to the evidentiary hearings in this matter, the parties stipulated that Defendant's former trial counsels, Charles O'Connor, Brian Donerly, and Ellis Rubin, are each deceased. (See May 9, 2010 transcript, p. 12). After waiving the right to be physically present during the evidentiary hearings,[fn2] Defendant testified by phone during the May 9, 2010 evidentiary hearing. Defendant testified that the first time he had ever heard about a plea agreement, it was late in 1985 when he was transported from Florida State Prison to the Hillsborough County Jail. (See May 9, 2010 transcript, p. 60). At the time he did not know why he had been transported, but his trial counsel, Charles O'Connor, and another attorney, Brian Donerly, visited him at the jail. (See May 9, 2010 transcript, p. 60). Defendant testified that Mr. O'Connor immediately told him about a plea agreement where Defendant would plead guilty to all pending murder charges in Hillsborough County, and he would then receive life sentences on all but one case and the State would get "one shot at the death penalty in that one case." (See May 9, 2010 transcript, pp. 61, 64). He further testified that Mr. O'Connor explained that they would put on 'one hell of a penalty phase,' including expert witnesses suggested by Defendant, and Mr. O'Connor was in "some kind of hurry on his part to get this done as quickly as possible." (See May 9, 2010 transcript, p. 61). He testified that Mr. O'Connor told him his only options were to accept the plea agreement or have "[e]ight capital murder trials and possibly eight death sentences." (See May 9, 2010 transcript, p. 70). That was the only time he spoke 25 with his attorneys about the plea agreement, and the next time he met with them, it was at the plea hearing; none of the attorneys discussed the plea agreement with him again before he entered his plea. (See May 9, 2010 transcript, pp. 65, 67, 70). However, Defendant subsequently conceded on cross-examination that the attorneys actually returned the following day to again discuss whether he would accept the plea agreement. (See May 9, 2011 transcript, p. 122).

[fn2] Defendant requested to testify by telephone and also waived his right to be present, both physically and by telephone, for any portion of the evidentiary hearings other than his own testimony. (See May 9, 2010 transcript, pp. 4-5, 153-54) .

Defendant further testified that he was not provided with a plea form during that jail meeting, but an investigator with the defense provided him a plea form just before the plea hearing and he only scanned it for approximately 5 minutes. (See May 9, 2010 transcript, pp. 65- 68). Defendant testified that no one ever reviewed the plea agreement with him "item by item" nor did anyone explain to him the consequences of each item in the agreement. (See May 9, 2010 . transcript, pp. 67-68). However, he acknowledged that no one forced him to enter into the plea agreement and that he understood the proceedings at that time. (See May 9, 2011 transcript, pp. 122- 23).

Defendant also testified that at the time he entered into the plea agreement, no one told him and he "wasn't aware of any waivers in the plea agreement, " and believed he could still challenge the issues related to his confession. (See May 9, 2010 transcript, pp. 68-70). It was not until the penalty phase jury selection had commenced that Defendant first overheard his attorneys discuss a waiver of his confession. (See May 9, 2010 transcript, p. 71, 119). He testified that once the attorneys told him about the waiver in his plea agreement, "[i]t turned into quite an argument - - a loud argument." (See May 9, 2010 transcript, pp. 71-72). At that point, Mr. 26 O'Connor returned to the court room and there was a discussion as to whether he should be allowed to withdraw his plea.

As to the motion to withdraw plea and his decision not to withdraw his plea, Defendant testified to the following:

{POSTCONVICTION COUNSEL]: All right. Now in addition to your having overheard O'Connor and Mr. Donerly talking about the waiver of the confession back in the holding cell area, had you talked to any other attorneys prior to that about your plea agreement?

[DEFENDANT]: Well, I had talked to you about it a little bit.

[POSTCONVICTION COUNSEL): All right. Anybody else there as well?

[DEFENDANT]: I honestly don't recall.

[POSTCONVICTION COUNSEL] : Okay. Do you remember Mr. Grantham being there?

[DEFENDANT]: I don't remember that, but he very well may have been. I know often you two were together when I talked to one of you.

[POSTCONVICTION COUNSEL]: All right. And what, if anything, do you recall as to there being a conversation about the details of your plea agreement?

[DEFENDANT] : Well, I remember one meeting where you were - - you were talking about the - - the confession issue and how any plea agreement might hurt that or - - or stop me from pursuing that as an issue in the Hillsborough cases. And I - - I had never been told anything like that and was under the impression that we could still pursue the confession issue on appeal.

27 [POSTCONVICTION COUNSEL]: All right, then was it shortly after that Mr. O'Connor came in and Mr. Donerly came in and were talking about the walver.

[DEFENDANT]: Yes, I think it was. Yes.

[POSTCONVICTION COUNSEL]: All right. After Judge Griffin heard the testimony regarding the fact there was some confusion over this waiver of your right to appeal the confession issue, what was the judge's initial ruling?

[DEFENDANT]: He ruled that he would give me 24 hours to decide if I wanted to withdraw from the plea agreement or not.

[POSTCONVICTION COUNSEL]: Okay. What happened then?

[DEFENDANT]: Then I was put ln a jury room with about four or five Hillsborough lawyers, including O'Connor and Donerly; and they had their appellate lawyer from their office in there, too, a female. And there was about four or five Hillsborough lawyers. And you and Randy Grantham were there too.

[POSTCONVICTION COUNSEL]: All right. Now before - - before Judge Griffin said "I'm going to give you 24 hours to decide to withdraw the plea," what if anything do you recall as far as going back to that room to attempt to make that decision that evening?

[DEFENDANT] : I remember all the Hillsborough lawyers from the public defender's office there were telling me I should not withdraw from the guilty plea - - plea agreement.

28 [POSTCONVICTION COUNSEL]: At the time you first went into the back room to talk about the situation, had Judge Griffin already given you 24 hours, or was the idea that everybody was going to go in the back room and talk about whether you were going to withdraw the plea.

[DEFENDANT]: No, he - - this was before he gave me the 24 hours. We were at that point trying to decide what I wanted to do.

[POSTCONVICTION COUNSEL]: And was it - - was there an idea that perhaps the might be some resolution of that issue that evening?

[DEFENDANT]: I believe there was, yes. The judge was - - the judge thought we might be going ahead with the jury selection before we went into the jury room.

[POSTCONVICTION COUNSEL]: All right. So, at the time you had been given the opportunity to withdraw your plea, and yourself and the other attorneys who you've indicated went into the jury room to talk about it, what do your recall as to those discussions?

[DEFENDANT]: In the jury room?

[POSTCONVICTION COUNSEL]: Yes, sir.

[DEFENDANT]: Well like I said, all the - - all the Hillsborough public defender lawyers were telling me that I should stick with the plea agreement, that I should not withdraw; that if I withdrew, there would be eight capital murder trials. The prosecutor kept sending the investigator back there, Tony Webb, telling me that the prosecutor was promising eight capital murder trials if I withdrew from the guilty - - from the plea agreement. And you and Randy Grantham were telling me that I should withdraw from the plea agreement, mostly because of the waiver of the confession issue involved in it. 29 [POSTCONVICTION COUNSEL]: Okay. Do you recall how long the discussions took place in that jury room before things broke for the evening?

[DEFENDANT]: It lasted quite a while. I would say over an hour. It went on for quite a while.

[POSTCONVICTION COUNSEL]: All right. What happened to end that discussion.

[DEFENDANT]: I came to the conclusion that Charlie O'Connor was no longer going to be my lawyer. That after this - - after his not telling me about the waiver involved in the plea agreement, that he had - - that he had to go. He was not going to be my lawyer anymore. He basically admitted in court when he testified that he had lied to me and hadn't told me about the waivers involved in the plea agreement.

[POSTCONVICTION COUNSEL]: More specifically - -

[DEFENDANT]: I felt - - I'm sorry, go ahead.

[POSTCONVICTION COUNSEL]: Let me clarify my question. Eventually everybody stopped talking in the back room and you were taken back to the jail. What happened to break that up, do you know?

[DEFENDANT]: The judge wanted a decision.

[POSTCONVICTION COUNSEL]: All right. Then what ultimately happened that evening as far as a decision being made or not made?

[DEFENDANT]: Well, that evening was when - - when the judge gave me 24 hours. Because I really didn't know - - I still really didn't know what I should do because I had one group of lawyers telling me I should withdraw from the plea agreement; the Pasco lawyers, you and Randy 30 Grantham. Then on the other hand I had all the Hillsborough lawyers, including their appellate lawyer, telling me the confession would never be an issue on appeal. And I really didn't know what I should do.

[POSTCONVICTION COUNSEL]: All right. Now during that meeting back in the jury room, other than the discussions regarding the waiver of challenging your confession, were any other points of the plea agreement discussed?

[DEFENDANT]: No, just --just that one.

[POSTCONVICTION COUNSEL]: All right. I'm going to ask this, if it's all right, in kind of a summary format, but you've already told us that the only discussion that was held back in the jury room had to do with the waiver of the motion to suppress your confession. Back in the jury room, did you ever look at and review a written -- the written plea agreement?

[DEFENDANT]: No, I didn't.

[POSTCONVICTION COUNSEL]: Did anybody back in the room go over that written plea agreement with you item by item?

[DEFENDANT]: Absolutely not. It was all -- everybody was just talking. There was no plea agreement involved.

[POSTCONVICTION COUNSEL]: All right. The focus was just on that sole issue of the waiver of the confession issue, correct?

[DEFENDANT]: That, and the fact that there would be eight murder trials if I didn't -- if I withdrew from the plea agreement. They kept stressing that. The Hillsborough lawyers, they kept stressing that point because they knew that I didn't want to go through eight capital murder trials. Who would.

31 The trial court denied relief in a detailed written order entered on November 28, 2011. This order of November 28, 2011 summarized the allegations in Claims II and III-3 as follows:

(PCR V7/1176-1177; 1213-14).

24 pressure upon him to enter the guilty plea and not withdraw the plea once it had been entered.

(PCR V7/1177; 1214)

Prior to the evidentiary hearings in this matter, the parties stipulated that Defendant's former trial counsels, Charles O'Connor, Brian Donerly, and Ellis Rubin, are each deceased. (See May 9, 2010 transcript, p. 12). After waiving the right to be physically present during the evidentiary hearings, [fn2] Defendant testified by phone during the May 9, 2010 evidentiary hearing. Defendant testified that the first time he had ever heard about a plea agreement, it was late in 1985 when he was transported from Florida State Prison to the Hillsborough County Jail. (See May 9, 2010 transcript, p. 60). At the time he did not know why he had been transported, but his trial counsel, Charles O'Connor, and another attorney, Brian Donerly, visited him at the jail. (See May 9, 2010 transcript, p. 60). Defendant testified that Mr. O'Connor immediately told him about a plea agreement where Defendant would plead guilty to all pending murder charges in Hillsborough County, and he would then receive life sentences on all but one case and the State would get "one shot at the death penalty in that one case." (See May 9, 2010 transcript, pp. 61, 64). He further testified that Mr. O'Connor explained that they would put on 'one hell of a penalty phase,' including expert witnesses suggested by Defendant, and Mr. O'Connor was in "some kind of hurry on his part to get this done as quickly as possible." (See May 9, 2010 transcript, p. 61). He testified that Mr. O'Connor told him his only options were to accept the plea agreement or have "[e]ight capital murder trials and possibly eight death sentences." (See May 9, 2010 transcript, p. 70). That was the only time he spoke 25 with his attorneys about the plea agreement, and the next time he met with them, it was at the plea hearing; none of the attorneys discussed the plea agreement with him again before he entered his plea. (See May 9, 2010 transcript, pp. 65, 67, 70). However, Defendant subsequently conceded on cross-examination that the attorneys actually returned the following day to again discuss whether he would accept the plea agreement. (See May 9, 2011 transcript, p. 122).

Defendant further testified that he was not provided with a plea form during that jail meeting, but an investigator with the defense provided him a plea form just before the plea hearing and he only scanned it for approximately 5 minutes. (See May 9, 2010 transcript, pp. 65- 68). Defendant testified that no one ever reviewed the plea agreement with him "item by item" nor did anyone explain to him the consequences of each item in the agreement. (See May 9, 2010 transcript, pp. 67-68). However, he acknowledged that no one forced him to enter into the plea agreement and that he understood the proceedings at that time. (See May 9, 2011 transcript, pp. 122- 23).

As to the motion to withdraw plea and his decision not to withdraw his plea, Defendant testified to the following:

[DEFENDANT]: Well, I had talked to you about it a little bit.

[POSTCONVICTION COUNSEL]: All right. Anybody else there as well?

[DEFENDANT]: I honestly don't recall.

[POSTCONVICTION COUNSEL] : Okay. Do you remember Mr. Grantham being there?

[DEFENDANT]: I don't remember that, but he very well may have been. I know often you two were together when I talked to one of you.

[POSTCONVICTION COUNSEL]: All right. And what, if anything, do you recall as to there being a conversation about the details of your plea agreement?

27 [POSTCONVICTION COUNSEL]: All right, then was it shortly after that Mr. O'Connor came in and Mr. Donerly came in and were talking about the walver.

[DEFENDANT]: Yes, I think it was. Yes.

[DEFENDANT]: He ruled that he would give me 24 hours to decide if I wanted to withdraw from the plea agreement or not.

[POSTCONVICTION COUNSEL]: Okay. What happened then?

[DEFENDANT] : I remember all the Hillsborough lawyers from the public defender's office there were telling me I should not withdraw from the guilty plea - - plea agreement.

[DEFENDANT]: No, he - - this was before he gave me the 24 hours. We were at that point trying to decide what I wanted to do.

[POSTCONVICTION COUNSEL]: And was it - - was there an idea that perhaps the might be some resolution of that issue that evening?

[DEFENDANT]: I believe there was, yes. The judge was - - the judge thought we might be going ahead with the jury selection before we went into the jury room.

[DEFENDANT]: In the jury room?

[POSTCONVICTION COUNSEL]: Yes, sir.

[DEFENDANT]: It lasted quite a while. I would say over an hour. It went on for quite a while.

[POSTCONVICTION COUNSEL]: All right. What happened to end that discussion.

[POSTCONVICTION COUNSEL]: More specifically - -

[DEFENDANT]: I felt - - I'm sorry, go ahead.

[POSTCONVICTION COUNSEL]: Let me clarify my question. Eventually everybody stopped talking in the back room and you were taken back to the jail. What happened to break that up, do you know?

[DEFENDANT]: The judge wanted a decision.

[POSTCONVICTION COUNSEL]: All right. Then what ultimately happened that evening as far as a decision being made or not made?

[DEFENDANT]: No, just --just that one.

[DEFENDANT]: No, I didn't.

[POSTCONVICTION COUNSEL]: Did anybody back in the room go over that written plea agreement with you item by item?

[DEFENDANT]: Absolutely not. It was all -- everybody was just talking. There was no plea agreement involved.

[POSTCONVICTION COUNSEL]: All right. The focus was just on that sole issue of the waiver of the confession issue, correct?

31 [POSTCONVICTION COUNSEL]: Now when you went back to the jail that evening, why don't you tell the judge what was going on in your head regarding your consideration of this issue of withdrawing the plea?

[DEFENDANT]: Well, I absolutely had no idea what I should do. I thought maybe a lawyer would come and talk to me. I thought maybe you, or Randy, or O'Connor, or somebody would come and talk to me that night, and maybe we could -- we could discuss the issues involved in the plea agreement; but really, I had no idea what I should do.

(May 9, 2011 transcript, pp. 72-81). Because Defendant was still undecided, that evening of December 11, 1985, he called an attorney from the "voluntary resource center" and spoke with Jenny Greenberg, Esquire, who was not involved in Defendant's case but also advised him to withdraw his plea. (See May 9, 2011 transcript, pp. 90-9 1).

Although Defendant believed the state of the law at the time required law enforcement to cease questioning upon an equivocal request for counsel, and Mr. O'Connor was aware of the issue because he attended the motion to suppress litigated in Pasco County, Defendant testified that counsel essentially refused to discuss this suppression issue with him. (See May 9, 2011 transcript, p. 77). He testified that his relationship with counsel was contentious, and every time he asked counsel about filing a motion to suppress his confession, Mr. O'Connor would tell him that 'they will never do away with Bobby Joe Long's confession in the state of Florida'; Mr. O'Connor would then "storm out of the room and slam the door, and that would be the end of the meeting." (See May 9, 2011 transcript, p. 77).

Defendant also testified that at the time leading up to the trial he couldn't sleep and required medication, and he slept only a couple of hours the night he had to decide whether to withdraw his plea. (See May 9, 2011 transcript, pp. 81-82). As to the 32 medication, he believed the jail had him on 10 mg. of Librium, but because it wasn't sufficient for him, he would take an inmate's strong psychotropic medications, which basically had him "knocked out day and night." (See May 9, 2011 transcript, pp. 81-82). Defendant testified that, at the time he entered his plea on September 23, 1985, and at the time he was given the opportunity to withdraw his plea, he was taking 50 mg. of either Vistaril or Sinequan at the county jail. (See May 9, 2011 transcript, pp. 83-84). He believed the medication only affected his ability to sleep, but did not help his thinking process, judgment, or ability to understand things and did not know what other effect it may have had. (See May 9, 2011 transcript, pp. 87-88).

On cross-examination, Defendant acknowledged that during the initial plea colloquy, he told the judge he had read the written plea agreement and it was explained to him by counsel, but further maintained that he only meant at the initial meeting when Mr. O'Connor first told him about the plea agreement. (See May 9, 2011 transcript, pp. 110-15). Defendant also acknowledged that at one time, jail authorities found drugs that were not prescribed to him and subsequently did not allow him any medications at all; however, he insisted that ban was only during a previous jail stay and that at the time of the plea and opportunity to withdraw the plea, he was on either Vistaril or Sinequan but did not know if the medication affected him other than to help him sleep. (See May 9, 2011 transcript, pp. 123-34). As to the plea agreement, Defendant further testified,

[THE STATE]: Now, on -- you acknowledge that you spoke with Mr. Grantham and Mr. Norgard before December 12th when you decided to stick with your plea, you acknowledge that, don't you?

[DEFENDANT]: They were in the room with the other five Hilisborough lawyers, yes.

[THE STATE]: And they were telling you to go ahead and withdraw it because the confession is

33 bad. We'll get it kicked. Isn't that what they advised you of?

[DEFENDANT]: Basically, yes.

[THE STATE] : So you knew that that was an option, that you could withdraw your plea and proceed to a motion to suppress. or you could continue with your plea as it stood. You knew that on December 12th of 1985 when you elected not to withdraw your plea; isn' t that correct?

[DEFENDANT] : Yes .

[THE STATE] : Okay.

[DEFENDANT ] : Yes , I did .

[THE STATE] : All right. And you acknowledged, did you not, to Judge Griffin on December 12th of 1985, that you by then understood that under the plea agreement you would receive 26 life sentences, correct? You knew that?

[DEFENDANT] : Yes, I did.

[THE STATE] : Okay. And you still elected not withdraw your plea, correct?

[DEFENDANT] : As I explained before, yes, that' s correct.

(May 9, 2011 transcript, pp. 137-38).

[THE STATE]: And on that day, you were given opportunity again to ask Judge Griffin questions about your decision not to withdraw your plea, but you chose not to ask him any questions, isn't that correct?

[DEFENDANT]: That's correct. I was assuming, again, that I was going to have another lawyer come in and get involved in the case, and we 34 would pursue the matter at that time if thought it was in my best interest.

[THE STATE]: Okay. But that assumption wasn't assumption that you made based upon any misadvice by Mr. O'Connor, or Mr. Alldredge, or Mr. Donerly, or anybody that was representing you, was it?

[DEFENDANT]: I don't understand the question.

[THE STATE]: You've indicated that you assumed at the time you declined to withdraw your plea on December 12th 1985, that you could still have an opportunity down the road withdraw your plea?

[DEFENDANT]: Yes, I did.

[THE STATE]: Okay. And my question to you is, that assumption that you've just spoken about was not an assumption based upon any bad advice that Mr. O'Connor gave you, or Mr. Alldredge gave you, or Mr. Donerly gave you, where they said, "Look, you can deny withdrawing it now, and you'll always have shot down the future, " right?

[DEFENDANT]: No, none of them said that. No.

(May 9, 2011 transcript, pp. 139-40).

[THE STATE] : Okay. All right. You knew that by entering this plea agreement with Hillsborough County prosecutors that the State would only be able to seek death penalty for one of the eight murders that you were charged in Hillsborough County, correct?

[DEFENDANT] : Yes, I did.

[THE STATE] : And you entered into this plea agreement with the State of Florida, Hillsborough County prosecutors, to limit your exposure to the death penalty and because you did not want to go 35 through eight murder trials . Those were the reasons that you entered this plea; isn' t that correct?

[DEFENDANT]: Yes, it is.

(May 9, 2011 transcript, pp. 142-43).

[THE STATE]: Okay. Mr. Long, I'm not sure if you heard the last question when the phone went dead, so let me repeat this. Between December 11th of 1985 when Judge Griffin told you he was going to let you withdraw your plea, until December 12th of 1985 when you elected or decided not to withdraw your plea, weren't you present for a round-table discussion with Brian Donerly, Craig Alldredge, Charlie O'Connor, Robert Norgard, Randy Grantham, an appellate attorney from the Hillsborough Public Defender's Office where the decision to withdraw your plea or the wisdom about withdrawing it was discussed?

[DEFENDANT]: Yes, I was.

[THE STATE]: Okay. Let me step back. I forgot something earlier about -- when -- on December 12th of 1985, when - Judge Griffin talked with you about your decision not to withdraw your plea, isn't it a fact that you admitted or acknowledged to Judge Griffin that by electing not to withdraw your plea that you were waiving your right to appeal the confession; you understood that, correct?

[DEFENDANT]: Yes, I did.

(May 9, 2011 transcript, p. 145).

During the May 9, 2011 evidentiary hearing, Defendant also presented the testimony of Robert Fraser, Esquire, who represented him after his death 36 [POSTCONVICTION COUNSEL]: Now when you went back to the jail that evening, why don't you tell the judge what was going on in your head regarding your consideration of this issue of withdrawing the plea?

[THE STATE]: Now, on -- you acknowledge that you spoke with Mr. Grantham and Mr. Norgard before December 12th when you decided to stick with your plea, you acknowledge that, don't you?

[DEFENDANT]: They were in the room with the other five Hilisborough lawyers, yes.

[THE STATE]: And they were telling you to go ahead and withdraw it because the confession is

33 bad. We'll get it kicked. Isn't that what they advised you of?

[DEFENDANT]: Basically, yes.

[THE STATE] : So you knew that that was an option, that you could withdraw your plea and proceed to a motion to suppress . or you could continue with your plea as it stood. You knew that on December 12th of 1985 when you elected not to withdraw your plea; isn' t that correct?

[DEFENDANT ] : Yes .

[THE STATE] : Okay .

[DEFENDANT]: Yes, I did.

[DEFENDANT] : Yes, I did.

[THE STATE]: Okay. And you still elected not withdraw your plea, correct?

[DEFENDANT] : As I explained before, yes, that' s correct.

(May 9, 2011 transcript, pp. 137-38).

[THE STATE]: Okay. But that assumption wasn't assumption that you made based upon any misadvice by Mr. O'Connor, or Mr. Alldredge, or Mr. Donerly, or anybody that was representing you, was it?

[DEFENDANT]: I don't understand the question.

[THE STATE]: You've indicated that you assumed at the time you declined to withdraw your plea on December 12th 1985, that you could still have an opportunity down the road withdraw your plea?

[DEFENDANT]: Yes, I did.

[DEFENDANT]: No, none of them said that. No.

(May 9, 2011 transcript, pp. 139-40).

[DEFENDANT] : Yes, I did.

[THE STATE] : And you entered into this plea agreement with the State of Florida, Hillsborough County prosecutors, to limit your exposure to the death penalty and because you did not want to go 35 through eight murder trials. Those ·were the reasons that you entered this plea; isn' t that correct?

[DEFENDANT] : Yes , it is .

(May 9, 2011 transcript, pp. 142-43).

[DEFENDANT]: Yes, I was.

[THE STATE]: Okay. Let me step back. I forgot something earlier about -- when -- on December 12th of 1985, when Judge Griffin talked with you about your decision not to withdraw your plea, isn't it a fact that you admitted or acknowledged to Judge Griffin that by electing not to withdraw your plea that you were waiving your right to appeal the confession; you understood that, correct?

[DEFENDANT]: Yes, I did.

(May 9, 2011 transcript, p. 145).

During the May 9, 2011 evidentiary hearing, Defendant also presented the testimony of Robert Fraser, Esquire, who represented him after his death 36 sentence was first reversed on appeal. Mr. Fraser testified that Defendant asked him to file a motion to withdraw his plea and he filed the motion at Defendant's request and, pursuant to a letter he wrote to Defendant, also to preserve the issues for habeas corpus proceedings. (See May 9, 2011 transcript, p. 27). Essentially, Mr. Fraser did not have any recollection of the grounds for filing the motion to withdraw Defendant's plea, what evidence was presented or whether any witnesses testified during the hearing on the motion to withdraw plea, or Defendant's subsequent pro se motion for rehearing on his motion to withdraw his plea. (See May 9, 2010 transcript, pp. 28-34). However, Mr. Fraser testified that during his representation of Defendant, he did not feel Defendant was ever incompetent or unable to make knowing, voluntary and intelligent decisions. (See May 9, 2010 transcript, p. 36). Mr. Fraser did not recall any evidence that would have supported an insanity defense and felt Defendant understood what he told Defendant, although Defendant did not always agree with him. (See May 9, 2010 transcript, pp. 36-37).

During the June 27, 2011 evidentiary hearing, Randall Grantham, one of Defendant's counsels in his Pasco County capital case, also testified. Mr. Grantham was responsible for the motion to suppress Defendant's confession that was filed and litigated in Pasco County. On December 11, 1985, the day that the initial penalty phase in the instant case was scheduled to commence, Mr. Grantham and Mr. Norgard went to Hillsborough County to observe the trial but ended up in the conference with Defendant and his Hillsborough County attorneys wherein they discussed Defendant's motion to withdraw his plea. (See June 27, 2011 transcript, p. 21).

Although he noted Defendant had some mental health issues relevant to the penalty phase, Mr. Grantham testified that Defendant's mental health issues did not rise to the level of insanity and they had no reason to believe Defendant was incompetent or otherwise incapable of making decisions. (June 27, 2011 transcript, pp. 19-20, 22). Mr. Grantham further testified that at the conference on his motion to 37 withdraw plea, Defendant appeared more agitated than usual but "didn't seem to be incompetent to make any decisions." (June 27, 2011 transcript, p. 22) . As to the meeting and discussion of appealing the motion to suppress, Mr. Grantham testified to the following:

[MR. GRANTHAM] : There was - - basically, they were trying to talk him into maintaining the plea because they didn't fee] that there was any merits or that the motion would not be - - they felt the motion to suppress would not be successful.

[THE STATE]: And within the context of that it was made clear to Mr. Long in that meeting that he was waiving his right to move to suppress that confession should he maintain or keep his guilty plea; is that correct?

[MR. GRANTHAM]: That was the gist of the plea bargain - - the plea agreement as I understood it. I'm not sure how much discussion revolved around what was appealable and what wasn't. but it was basically giving up the right to challenge the confession.

[THE STATE]: Mr. Long was told that in the context of the hour-long hearing, if you keep your plea of guilty, you can't move to appeal or to suppress this confession, that was the crux of the whole issues, wasn't it - -

[MR. GRANTHAM]: Yes.

[THE STATE]: You don't have any recollection of Mr. Long being medicated with psychotropic medications during the Pasco County trial, do you?

[MR. GRANTHAM]: I don't have any recollection of that.

38 [THE STATE]: And similarly, you don't have any recollection of Mr. Long during any communication you had with him, whether it be in writing or in person, during the time of the Pasco proceedings up until and including December of '85, when this withdrawal of the plea issue came up, you don't have any recollection of Mr. Long in any form ever suggesting to you that his thought processes, his mental status was affected by the use of, or the absence, or the denial of psychotropic drugs to him?

[MR. GRANTHAM] : I don't have any recollection of that .

[THE STATE]: And you don't have any recollection when you were involved in his Pasco County representation in the murder trial of having to act on his behalf or interceding with jail authorities to either ask for him to receive psychotropic medications or to be taken off psychotropic medications; is that correct?

[MR. GRANTHAM]: I have no recollection of that.

[THE STATE]: If the record indicates that on December 12th of 1985, the day after you observed Judge Griffin give Mr. Long the opportunity to withdraw his pleas, if the record reflects on that following day Mr. Long was in court and decided to maintain his plea, you would not have any reason to question his competency to do so; is that correct?

[MR. GRANTHAM] : I wasn' t there . I wouldn' t know what happened.

[THE STATE]: Of course. But from what you saw and knew the day before and all your dealing before, without knowing what was going on on the 12th, as far as his legal competence to make a decision not to withdraw his pleas, you don't have any reason to believe that he was incompetent or unable to make such decision, do you?

39 [MR. GRANTHAM]: No, sir.

(June 27, 2011 transcript, pp. 23-26).

During the May 10, 2011 evidentiary hearing, the State presented the testimony of Tony Duane Webb, who worked on this case as an investigator with the Office of the Public Defender Hillsborough County. Mr. Webb recalled that at an early point during Defendant's incarceration in the county jail, his cell had been searched and various drugs were found; as a result, Defendant was placed in lockdown and did not have contact with other inmates. (See May 10, 2010 transcript, p. 172). Mr. Webb also recalled he was present during the discussion between Defendant and his attorneys when they discussed the plea agreement, and described following:

[THE STATE]: Okay. In general, can you give the Court an idea of the tone of the conversation between Mr. Long and the attorneys when they discussed with him the plea offer in that Morgan Street jail conversation.

[MR. WEBB]: Mr. Long understood what the situation was. He knew - - I hate to use the phrase, a bite out of the apple, they would only be able to try him for the one case - - murder. Charlie was very explicit about, you, if you do this, everything has been said can come in, but this is the only time it can be done. So it was a lengthy discussion. And I, in my opinion, he understood what he was allowing to happen.

[THE STATE]: Was the tone of the conversation contentious, argumentative?

[MR. WEBB]: No, sir, it was not. It was a discussion.

[THE STATE]: Do you recall whether or not during that discussion the defense attorneys specifically addressed with Mr. O'Connor that as a part of the plea offer from the State of 40 Florida -- from the State - - from the State of Florida, that Mr. Long would be waiving his right to contest the admissibility of his confession and other items of evidence seized?

[MR. WEBB] : That was discussed.

[THE STATE]: And did Mr. Long indicate any opposition to that concept as explained to him during that discussion?

[MR. WEBB]: No, sir, he did not.

[THE STATE]: Did Mr. Long appear to be medicated to you - -

[MR. WEBB]: No, sir.

[THE STATE]: - - during that plea discussion? [MR. WEBB] : No, sir, he did not.

[THE STATE]: You've indicated I think from the colloquial phrase, "one chance or one bite of the apple." Was it discussed in that plea discussion with Mr. Long in the Morgan Street Jail, that the plea agreement limited the State's opportunity to seek the death penalty to only one of the eight murder charges then pending in Hillsborough County?

[MR. WEBB] : That' s correct.

[THE STATE]: From your observation of the conversation, and based on your prev1ous interaction with Mr. Long, did it appear to you that Mr. Long understood the importance of giving the State only one bite at the apple, only one shot at the death penalty in his case in Hillsborough County?

[MR. WEBB] : He knowingly understood what the situation was.

[THE STATE]: In that conversation or at any other time, did you ever observe or hear Charlie 41 O'Connor or Craig Alldredge ever pressure or threaten Mr. Long to take the plea?

[MR. WEBB]: Not at any time.

[THE STATE]: During that Morgan Street Jail conversation about the plea offer with the State, did Mr. Long ever raise his voice?

[MR. WEBB]: No, sir. No, sir.

[THE STATE]: During that conversation did Mr. Long ever express reluctance or reservation to accept the State's plea offer?

[MR. WEBB] : No, sir. He thought that would be the end of the trial here in Hillsborough County.

[THE STATE]: Did Mr. Long express any indication that he wanted to avoid numerous trials and numerous trips back to Hilisborough County?

[MR. WEBB] : That would be the understanding that I had.

(May 10, 2011 transcript, pp. 176-80). Although Mr. Webb testified that the issue of waiving his right to appeal the confession issue was discussed and Defendant did not object, Mr. Webb also testified that Defendant "understood enough to know that there could be an appeal." (See May 10, 2011 transcript, p. 186). Mr. Webb also testified that Defendant appeared to be of above- average intelligence and "totally" appeared to understand their discussions. (See May 10, 2011 transcript, p. 173). Although Defendant's personality changed somewhat and he was more difficult to deal with after he was denied medication at the county jail, Defendant still understood what information was asked of him and cooperated with the defense. (See May 10, 2011 transcript, p. 187).

During the May, 10, 2011 hearing, the State also 42 presented the testimony of Craig Alldrege, Esquire, an Assistant Public Defender who became involved in this case around September 1985. (See May 10, 2011 transcript, p. 189). Mr. Alldredge had some expertise in neuropsychological testing and became involved to assist with the psychological testimony in this case. (See May 10, 2011 transcript, p. 187). He testified that the defense had numerous mental health experts involved, but they were not "able to develop by lay testimony, by expert testimony any mental health defenses, either insanity, certainly not intoxication. It wasn't there." (See May 10, 2011 transcript, pp. 192-93). Mr. Alldredge noted that in terms of the guilt phase, "no expert would give us the opinion at the time that the commission of these offenses that he was impaired mentally." (See May 10, 2011 transcript, p. 192). Although Mr. Alldrege could not specifically recall any discussion regarding the entry or withdrawal of the plea, he testified as to Defendant's competency as follows:

[THE STATE]: Did you have conversation with Mr. Long during your participation in the representation of him?

[MR. ALLDREDGE]: Yes.

[THE STATE]: And did it appear from your observation and interaction with Mr. Long that his mental illnesses or brain impairment affected his cognitive abilities to understand the legal process and what he was up against in Hillsborough County?

[MR. ALLDREDGE] : At no time did I see any impairment of his cognitive abilities.

[THE STATE] : The record does not reflect any attempt by you or Mr . O' Connor ever to convince a court that he was incompetent to stand trial. Why would that be?

[MR. ALLDREDGE] : There was absolutely no evidence that he was incompetent to stand trial. Again, of the six, eight or ten mental health experts that 43 testified or that were involved in the case, both at the behest of the court and the defense, there was simply no professional testimony that he was mentally incompetent to proceed.

(May 10, 2011 transcript, pp. 192-93).

[THE STATE]: Okay. Based upon your interactions with Mr. Long, did it appear to you that he had the mental capability of entering a knowingly, voluntary and intelligent plea?

[MR. ALLDREDGE]: Oh, yes. No doubt about it.

[THE STATE]: In your conversations with Mr. Long at and near the time of the entry of the plea, did you ever observe him to be what appeared to be medicated?

[MR . ALLDRE DGE ] : No .

[THE STATE]: There came a time in December of 1985 when Judge Griffin granted Mr. Long the opportunity to elect to withdraw his plea. Do you recall that, sir?

[MR. ALLDREDGE]: Yes.

[THE STATE]: And the record reflects that the following day Mr. Long elected not to withdraw his plea. Were you involved in any discussion with Mr. Long about the election to either withdraw the plea or not to withdraw the plea?

[MR. ALLDREDGE]: I really do not recall being involved in those discussions.

[THE STATE]: Had you continued to work with and have contact with Mr. Long between September 23rd and December 12th, this time frame between the plea and the decision not to withdraw the plea?

[MR. ALLDREDGE]: Yes. 44 [THE STATE]: Based on your observations of Mr. Long and your interaction with Mr. Long throughout that period of time, , did it appear to you that Mr . Long was competent to make a knowingly and voluntary and intelligent decision not to withdraw the plea?

[MR. ALLDREDGE] : Yes . I never -- I never had a question of his cognitive abilities.

(May 10, 2011 transcript, pp. 195-96). Mr. Alldredge further testified that, although Defendant was competent to proceed, he was aware that Defendant was very mentally disturbed. (See May 10, 2011 transcript, pp. 201-2, 211-14). He explained that Defendant "manifested his mental illness more in his behavior than in his cognitive skills." (See May 10, 2011 transcript, p. 213). As an experienced defense attorney, Mr. Alldredge testified that in a case such as Defendant' s, which included a complex plea agreement with a lot of ramifications, he would have met with the client more than once, provided a written copy of the agreement and reviewed each paragraph of the agreement, and made absolutely certain that his client understood every part of the agreement before entering the plea. (See May 10, 2011 transcript, pp. 207-10). In dealing with a client, such as Defendant, with known health issues, the first step would be to ensure the defendant's competency, and beyond that, he agreed he would take extra time to explain the agreement. (See May 10, 2011 transcript, pp. 210-13).

During the May 10, 2011 evidentiary hearing, the State also presented the testimony of Robert M. Berland, Ph.D., a forensic psychologist who evaluated Defendant on October 25-27, 1985, and again in November and December 1988. (See May 10, 2011 transcript, pp. 218-19). Dr. Berland's written report on his psychological evaluation of Defendant was also entered into evidence. (See State's Exhibit #3). Dr. Berland diagnosed Defendant as psychotic, which appeared to be both inherited and as a result of a minor brain injury. (See May 10, 2011 transcript, pp. 222-25). As to the degree of Defendant's brain 45 impairment, Dr. Berland testified that the evidence suggested "it was mild to moderate impairment" where he did not detect any motor difficulties and Defendant was not incoherent or retarded. (See May 10, 2011 transcript, pp. 224-25, 243-44). Dr. Berland further testified that although Defendant was psychotic and he displayed severe character and psychotic disturbances, Dr. Berland had no reason to believe Defendant was incapable of entering a knowing, voluntary plea either on September 1985 or December 1985, as follows:

[THE STATE]: Okay. Do you have an opinion now as to whether any mental illness or brain impairment suffered by Mr. Long rendered him incompetent to stand trial back in 1985?

[DR. BERLAND]: Well, again, I have nothing that I can point to, but I didn't really - I've come -- in recent years, probably the last eight, nine years, I've come to have the attorney present so that I can assess both their rational appreciation and their ability to consult with a reasonable degree of rational understanding. And 1 never ended up doing that at the time.

[THE STATE]: Okay.

[DR. BERLAND]: So I have nothing that I can point to that I would argue is a basis for arguing that he's incompetent or was incompetent at the time.

[THE STATE]: Okay. Do you have an opinion as to whether Mr. Long's mental illness or brain impairment would have prevented Mr. Long from knowingly, voluntarily, and intelligently entering a plea in September of 1985?

[DR. BERLAND]: Again, I have nothing I can point to. He was utterly coherent and sensible and responsive to abstract concepts, and so forth, which people who are mentally ill can be, contrary to some people's belief.

[THE STATE]: Even though Mr. Long suffered from mental illness and/or brain impairment, what was 46 your conclusion as to his level of cognitive functioning?

[DR. BERLAND]: My conclusion now or then?

[THE STATE]: Well, you can tell us both, sir, if they're different.

[DR. BERLAND]: Well, as I said, it was a significant thing to me that he was very -- seemed to be very aware of conventional thinking, meaning he knew how most average people think and could think accordingly. And there was, as I stated in the report, clear evidence that he recognized the nature of the immediate consequences and the wrongfulness of his acts. So I had nothing that I could point to that would suggest that he had any deficiencies or oddities in his thinking that would have prevented him from --

[THE STATE]: Back in 1985 when you evaluated Mr. Berland [sic] or anytime since then, have you seen or considered -- observed, excused me, seen or observed any evidence at the time of Mr. Long's 1985 plea he was controlled by delusional thinking?

[DR. BERLAND]: No, I have not seen anything. Again, remember, he maintained employment as a radiology technician during at least part of that time and that required some subtility of action as well as the ability to hide what's going on inside his head.

[THE STATE]: Let me ask you another question along the lines that I've already asked you. Do you have an opinion as to whether Mr . Long' s mental illness or brain impairment prevented him from making a knowing and intelligent decision not to withdraw his plea in December of 1985?

47 [DR. BERLAND] : I have nothing that I could point to that would suggest that he had any problems in those areas .

[THE STATE]: Okay. Do you have an opinion as to whether Mr. Long met the legal criteria for insanity at the time of the commission of the offenses?

[DR. BERLAND] : Well, according to my statements in the report to Mr. O'Connor in December of 1985, I did not feel at the time that he met the criteria for insanity. Florida at that time used the McNaughton standard.

(May 10, 2011 transcript, pp. 27-29).

[POSTCONVICTION COUNSEL]: Right. But nonetheless, based on all the material available to you, including your own evaluations, what you had available from other clinicians, you stated there appeared to be clear evidence of organic impairment?

[DR. BERLANDI: That was my opinion.

[POSTCONVICTION COUNSEL]: All right. Now in accessing the brain impairment as being mild to moderate -- I mean, is there any way that you could specifically say -- narrow that down? In other words, clearly based on the fact that he did not have loss of motor impairment, that he was not -- not incoherent or not retarded as a result of the brain damage, you did not classify it as severe, but is there a way, you know, that you any way sitting here today could be more definitive other than saying "mild to moderate"?

[DR. BERLAND]: Well, probably not a lot more than what I've already said. The Wechsler, which is still used, the WAIS, 1955 WAIS, which is still used in brain injury research shows brain injury

48 by loss of ability, so that people loose [sic] intellectual abilities in selected areas. And there are differences that develop where they may not have lost in some areas and lost a lot in others. So retardation is an important factor in assessing the severity and the breadth or the intensity of brain injury. And because there was evidence that he still functioned at a fairly high level intellectually that is consistent with a mild to moderate impairment as opposed to -- and I don't know that you can - I'm not qualified to quantify it anymore than that.

(May 10, 2011 transcript, pp. 243-44).

[DR. BERLAND]: And the evidence that is in my report was that he had what would be classified as a mild to moderate [psychotic disturbance]. He was able to think normally and recognize normal thinking in spite of his mental illness, but he had mental illness as a factor in his behavior at some level.

(May 10, 2011 transcript, p. 247).

During the May 10, 2011 hearing, the State also presented the testimony of Randy K. Otto, Ph.D. Dr. Otto conducted a clinical interview with Defendant in 2008 and also reviewed various records provided to him by the State, including: previous forensic evaluations; transcripts from the May 1989 motions hearing, April 1985 motion to suppress hearing, February 1989 sentencing hearing, September 1985 and December 1985 plea hearings as well as a television interview given by Defendant; letters from Defendant; letters between Mr. O'Connor and Deputy Parrish; and other medical records. (See May 10, 2011 transcript, p. 268). Although Defendant reported to him that he was on medications which clouded his judgment at the time he entered his guilty plea, Dr. Otto testified, "Nothing I reviewed was consistent with his claim that at the time of these hearings he was on medication." 49 (See May 10, 2011 transcript, pp. 260-6 1). Dr. Otto noted that during the plea hearings, Defendant advised the trial court he was not taking any medication and also cited a document, dated October 15, 1985, from the Department of Corrections, which noted, 'received inmate from outside court, under no medications.' (See May 10, 2011 transcript, p. 261). Dr. Otto further opined that Defendant had the capacity to knowingly, voluntarily and intelligently plead guilty and not proceed on the withdrawal of his guilty plea, as follows:

[THE STATE]: All right. As a result of your evaluation of Mr. Long and your reference to this collateral data that you've reviewed, do you have an opinion as to whether Mr. Long's capacity to make a knowing, voluntary, and intelligent plea decision was impaired by psychiatric symptomology, cognitive impairment, or the effects of prescription medication during either the September '85 or December '85 hearings.

[DR. OTTO]: I do.

[THE STATE]: What is your opinion in that regard?

[DR. OTTO]: I think it's good to kind of review them in kind of sequence.

[THE STATE]: Please do.

[DR. OTTO]: As I tried to make sense of this, I thought there were three - - three reasons that might - - three causes that could potentially limit Mr. Long's ability to understand and participate in the plea process. One is, active psychiatric symptoms, right. Acutely psychiatrically ill, so you can't concentrate and you can't focus, that's one explanation. I didn't find evidence of that psychiatric disturbance in my discussions with Mr. Long about his behaviors at and around September of 1985 and December of '85.

50 I didn't find evidence of that in the reports that had been authored by psychiatrists who had been appointed to assess his competence to proceed with the legal process in the spring, months before September; reports by Dr. Gonzalez and reports by Dr. Sprehe. I had not been provided with the report authored by Dr. Berland that I heard him testify about earlier. I would acknowledge that some of what Dr. Berland wrote in his report arguably suggests psychiatric symptoms that could impair competence to proceed; however, I - - I'm discounting Dr. Berland's report because it's so inconsistent with the reports of the other experts. So - - and there was no evidence of impairment during the plea colloquy, which admittedly you don't have to say much as a defendant in a plea colloquy. So I was not of the opinion - - I am not of the opinion that he was experlenclng psychiatric symptoms of the kind that would limit his ability to understand and make a knowing, voluntary, intelligent decision about entering a plea, rejecting a plea. Second option is, okay, let's put psychiatric symptoms aside. Let's separate out psychiatric symptoms form cognitive impairment. You're not hearing voices. You're not super depressed. You're not seeing things, but maybe our attention and concentration is impaired because you got hit on the head or because you were suffocated when you were a young kid, or something like that. I didn't see evidence that at or around the time of the September or December 1985 plea hearings he was experiencing cognitive impairments that would limit his ability to make a knowing, voluntary, and intelligent plea. On what do I base that? Mr. Long was consistently evaluated by psychologists who described his intellectual function as average to a little above average. Okay. So the average person. I'll point out, that average to above average puts you a little brighter than the average defendant in a courtroom, okay. 51 Secondly, Mr. Long had - - my understanding was, and he represented to me, that he had a reasonable job before he got arrested. He was a radiologic technician. People who are impaired cognitively aren't able to do those kinds of jobs and not get fired, at least, right; and knowing that there was nothing significant that happened to his brain between when he was working as a radiologist and when he entered the plea, didn't get assaulted in jail, didn't get assaulted in prison, no one hit him on the head, there's no evidence to believe, there's no reason to believe that he was experiencing cognitive impairment that was so significant he couldn't understand what was presented to him because of limitations with respect to reasoning ability or just kind of intellectual capacity. And then the last explanation, well, maybe at or around the time of these plea negotiations when he was being presented with information from attorneys, maybe it wasn't psychiatric symptoms, maybe it wasn't cognitive impairment, maybe it was drugs. Maybe he was on heroin, maybe he was doped up by the jail MDs. And I didn't see any evidence suggesting that other than his report that he was on medications to me when interviewed.

[THE STATE]: Now your opinion merely addresses his capacity to enter a knowing, and voluntary, and intelligent plea; is that correct?

[DR. OTTO]: Correct.

(May 10, 2011 transcript, pp. 262-66).

In addition to the testimony of witnesses, the Court took judicial notice of the court file record. The State also introduced additional exhibits as evidence, including the plea agreement, September 23, 1985 plea hearing, the December 11, 1985 and December 12, 1985 hearings on Defendant's motion to withdraw plea, and a portion of the February 10, 1989 motion to withdraw plea hearing. (See State's Exhbits #1, #2, #12A, #12, and #13). 52 During the September 23, 1985 plea hearing, the trial court inquired as to whether Defendant felt he understood the proceedings, whether he had been placed on any medication within the preceding 24 hours, and whether Defendant had taken any intoxicants or barbiturates or anything that would alter his state of mind so that he did not understand the proceedings; Defendant asserted that he understood the proceedings and denied being placed on medication within the preceding 24 hours or that he had taken anything that would alter his state of mind. (See State' s Exhibit #2, p. 18) . During the plea colloquy, Defendant also asserted that he had read the plea form and it was explained to him by counsel. (See State's Exhibit #2, pp. 4, 11) . Upon questioning by the trial court, Defendant did not have any questions about the plea agreement and denied that he had been offered or promised anything or forced to enter the plea agreement in any way. (See State' s Exhibit #2, p. 5) . Both Mr . O' Connor and Defendant agreed it was in Defendant's best interest to enter the plea. (See State' s Exhibit #2 , p . 5) .

During the December 12, 1985 plea colloquy, Defendant asserted that he had time to consider the consequences of withdrawing his plea and thoroughly discussed it with counsel. (See State' s Exhibit #12, p. 4) . Defendant acknowledged that he was specifically waiving his right to appeal the issues related to the confession. (See State's Exhibit #12, pp. 7-8) .

Mr. O'Connor testified during the February 10, 1989 hearing and asserted that he reviewed the plea form with Defendant before he signed it and again when Defendant had the opportunity to withdraw his plea. (See State' s Exhibit #13, pp. 77-79) . He further explained that his strategy in reference to the plea agreement was to minimize Defendant' s potential exposure to the death penalty; he was apprehensive that the confession would ultimately be suppressed on appeal, and was aware of the possibility that different physical evidence existed in some of the eight capital cases where the State may have been able to proceed even without the confession. (See State' s 53 Exhibit #13, pp. 79-84, 87-90). During that hearing Defendant also testified that he entered into the plea agreement to limit his exposure to the death penalty and "didn' t want to go through eight murder trials Just like I don' t want to come down here for all these hearings." (See State's Exhibit #13, pp. 64-65).

Additionally, the State introduced the following exhibits:

• State's Exhibit #4 - a neuropsychological evaluation report, by Harold H. Smith, Jr., Ph.D., dated February 6, 1985, which reflects Defendant had a full scale IQ within the average range, was competent to proceed, did not meet the criteria for insanity at the time of the offenses and, while he may have had some neuropsychological deficits, the degree of "cerebral dysfunction" was insufficient to qualify as a statutory mitigator;

• State's Exhibit #5 - a competency evaluation report, by A.G., Gonzalez, M.D., dated May 13, 1985, which reflects Defendant was competent to proceed and did not meet the criteria for insanity at the time of the offenses;

• State's Exhibit #6 - a psychiatric examination report, by Daniel J. Sprehe, M.D., P.A., and dated May 15, 1986, which reflects Defendant was competent to proceed and did not meet the criteria for insanity at the time of the offenses;

• State's Exhibit #7 - a letter from Defendant to counsel, dated September 30, 1985, wherein he asks about getting some mild medication at the jail "to take the edge off," and notes that he was on Librium before and it helped, and that the "walls are moving like they were in Dade City";

• State's Exhibit #8 - a letter, dated October 3, 1985, from counsel O'Connor to Colonel David Parrish of the Hillsborough County Jail, wherein

I he inquires about the opportunity to apply for some mild medication;

• State's Exhibit #8A - a letter, dated October 7, 1985, where Colonel Parrish replies to Mr. O'Connor's letter and advises him that Dr. Szabo examined Defendant on October 6, and would prescribe him medication if necessary;

• State's Exhibit #9 - a letter from Defendant to counsel, dated October 7, 1985, wherein he notes that Mr. O'Connor previously arranged it so that Defendant could not even get a Tylenol at the jail and that's why he wanted one of the attorneys to request medication for him;

• State's Exhibit #10 - a letter from Defendant to counsel, dated February 12, 1985, wherein he questions whether his previous medication affected the results of his EEG and then complains that he can't get any medication, including Tylenol, at the jail;

• State's Exhibit #11 - a Department of Corrections Psychological Screening Report, dated June 12, 1985, which reflects Defendant was of above average intelligence, the results of his evaluation indicated he was "free of any symptoms of acute distress or neurotic or psychotic mental disorder," and that he complained about not being to receive any medication at the jail because they found Librium and Valium in his cell; and

• State's Exhibit #14 - Department of Corrections Chronological Record of Outpatient Health Care, which contained a notation that, on October 15, 1985, UPOfl Defendant's return to the Department of Corrections from "outside court," he was "under no medications."

(See State's Exhibits #4, #5, #6, #7, #8, #8A, #9, #10, #11, and #14).

The Court first notes that in claim II, Defendant alleges ineffective assistance of counsel. When 55 ineffective assistance is alleged, the burden is on the person seeking collateral relief to specifically allege the grounds for relief and to establish whether the grounds resulted in prejudice. Effective assistance of counsel does not mean that a defendant must be afforded errorless counsel or that future developments in law must be anticipated. Meeks v. State, 382 So. 2d 673 (Fla. 1980). In Strickland v. Washington, 466 U.S. 668 (1984), the U.S. Supreme Court provided the following standard for determining ineffective assistance of counsel:

The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

A convicted defendant's claim that counsel's assistance was sc defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland, 466 U.S. at 686-687. To prove counsel performed deficiently, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-688. The Court found that "[j]udicial scrutiny of counsel's performance must be highly deferential" and the court "must indulge a strong presumption that counsel's 56 conduct falls within the wide range of reasonable professional assistance..." Id. at 689. The Strickland court further noted that "[a] fair 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.

When the defendant enters a guilty plea rather than proceeding to trial, the two-part test from Strickland still applies, however, the prejudice prong "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 59 (1985) . Specifically, "in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id.

As to ground II, the Court finds Defendant has failed to establish that counsel performed deficiently. First, Defendant has not demonstrated that any mental health defenses existed. Each of the mental health evaluations reflected Defendant was competent to proceed and not insane at the time of the offenses, and Mr. Fraser, Mr. Alldredge and Mr. Grantham each testified there was nothing to support a mental health defense in the guilt phase . As Mr . Alldredge noted, "I t wasn' t there . "

The Court finds Defendant has further failed to demonstrate that counsel failed to adequately review the conditions and consequences of the plea agreement and should have taken extraordinary measures to ensure he understood the terms and consequences of the agreement. Although Defendant testified counsel did not explain or review the plea agreement with him in detail, the Court finds his assertions are not credible . Even if Defendant was not aware of the waiver of the confession issue at the time of the original plea, it is clear that he understood all of the terms and consequences, especially those related to the waiver, when he elected not to withdraw the 57 very plea agreement that was already in place.

Additionally, the testimony and evidence presented during the May 2011 and June 2011 evidentiary hearings clearly reflect Defendant was capable of entering a knowing, voluntary and intelligent plea and was not impaired by brain damage, mental illness, psychotropic medications, or otherwise. Dr. Berland testified that Defendant had a mild brain injury but the impairment was mild to moderate . Although Defendant clearly had mental health issues, those issues were related to the penalty phase [fn3] and did not rise to the level of insanity or any defense in the guilt phase. Nor did those mental health issues impair his competence to proceed or make decisions in his cases . None of the mental health evaluations found Defendant was incompetent to proceed and the testimony reflected that neither Mr. Fraser, Mr . Alldredge , Mr . Grantham nor Dr . Berland ever had any doubt as to Defendant' s ability to enter a knowing, voluntary and intelligent plea or decide whether to withdraw that plea once entered.

fn3. Indeed, the record reflects that in each penalty phase in this case, the trial court found Defendant had established the offense was committed under the influence of extreme mental or emotional disturbance and that his capacity to appreciate the criminality of his conduct or conform his conduct to the requirement of the law was substantially impaired.

Moreover, the testimony and evidence do not reflect Defendant' s contention that he was on medication during the proceedings at issue. As Dr. Otto noted, none of the documentation corroborates Defendant' s allegation . Defendant' s own letters reflect that the county jail wouldn' t even allow him a Tylenol and Mr . Alldrege recalled that there was an issue trying to get Defendant some mild medication at the jail. Even if Defendant had been taking a mild antidepressant to help him sleep, there is no evidence that it impaired his competence to enter a knowing, voluntary and intelligent plea.

58 Additionally, although the testimony reflected Defendant had a contentious relationship with Mr . O' Connor, the testimony and evidence do not reflect that Mr . O' Connor coerced or pressured Defendant into entering the plea agreement or not withdrawing his plea. In fact, on December 11, 1985, when Defendant was given the opportunity to withdraw his plea, he had the benefit of his Pasco County attorneys present, urging him to withdraw his plea. He further contacted an attorney unrelated to the case and she likewise advised him to withdraw his plea. As Defendant conceded on cross-examination, he knew he could either decide to withdraw his plea and pursue a motion to suppress his confession or continue with the plea agreement as it stood, and he deliberately chose not to withdraw his plea. For the aforementioned reasons, the Court finds Defendant has failed to establish counsel performed deficiently.

The Court further finds Defendant has failed to establish prejudice. In determining ineffective assistance claims where a plea was entered, 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." Grosvenor, 874 So.2d 1176, 1181 (Fla. 2004) . "[in determining whether a reasonable probability exists that the defendant would have insisted on going to trial, a court should consider the totality of the circumstances surrounding the plea, including such factors as whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial." Id. at 1181- 82. "Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. 668, 687 (Fla. 1984) .

In the instant matter, Defendant has failed to demonstrate that he would have insisted on going to trial but for counsel's deficient performance. First, 59 as previously indicated, Defendant has failed to establish a mental health defense that would have succeeded at trial. The testimony and evidence reflect Defendant was competent and not insane, and the attorneys each testified that there was no mental health defense in the guilt phase. As to the possible defense of challenging his confession, Defendant has not demonstrated he would not have received a death sentence in any of the eight cases absent that confession.

Furthermore, it is clear to this Court Defendant understood that as part of the plea agreement he was waiving his right to challenge the issues related to his confession and elected to proceed with the plea agreement as it stood. The December 12, 1985 plea colloquy leaves no doubt that Defendant knew and understood the full nature and consequences of the plea agreement.

Additionally, although the plea agreement included the possibility that he could receive the maximum penalty - death - it is clear that the plea agreement minimized his exposure to such a sentence by allowing the State to pursue it in only one of his eight Hillsborough County capital cases . As acknowledged by Defendant in the instant proceedings as well as the February 10, 1989 hearing, he entered into the plea agreement specifically to limit his exposure to the death penalty and because he did not want to return here and go through eight murder trials. It is clear to this Court Defendant would not have proceeded with eight guilt phases and eight possible penalty phases . The Court finds it remarkable that Defendant did not even want to be present, physically or by telephone, for any portion of the instant proceedings except his own telephonic testimony. As Defendant noted to the Court, "I would just like to say that I don' t ever want to come down there for any reason." (May 9, 2011 transcript, p. 153, attached) . It is not reasonable to believe Defendant would have wanted to endure eight guilt phases and eight possible penalty phases .

Under the totality of the circumstances, there is 60 no reasonable probability that Defendant would not have pled guilty and insisted on proceeding to trial but for counsel' s performance . Consequently, the Court finds Defendant has failed to demonstrate prejudice. As Defendant has failed to demonstrate either deficient performance or prejudice under Strickland, the Court finds relief is not warranted on ground II.

As to ground III-3, the Court incorporates its findings as to ground II and finds Defendant is likewise not entitled to relief . As mentioned supra, the testimony and evidence presented during the May and June 2011 evidentiary hearings reflect that Defendant was not only capable of entering a knowing, voluntary and intelligent plea, but that he did so. The testimony and evidence do not support his allegations that his ability to enter a knowing, voluntary and intelligent plea was impaired by brain damage, mental illness, psychotropic medications, or otherwise. Although Dr. Berland testified that Defendant had a mild brain injury and psychotic disturbances, his impairment was mild to moderate. The record reflects Defendant had mental health issues, but those issues were related to the penalty phase and did not rise to the level of insanity or any defense in the guilt phase, and those mental health issues did not impair his competence to proceed or make decisions in his cases . The court file and record simply do not reflect that his decisions about entering or not withdrawing his plea were anything but knowing, voluntary and intelligent. As such, no relief is warranted on claim III-3.

It is therefore ORDERED AND ADJUDGED that grounds II and III-3 of Defendant's motion are each hereby DENIED.

(PCR V7/1214-47) (e.s.) This appeal follows.

61 SUMMARY OF THE ARGUMENT

Issue I: The IAC/quilty plea claim

The trial court properly denied Long's IAC/guilty plea claim under Strickland v. Washington, Hill v. Lockhart, and

Premo v. Moore. The trial court set forth detailed factual findings which are supported by competent, substantial evidence.

Inasmuch as no procedural or substantive errors have been shown with regard to the factual findings or the trial court's application of the relevant legal principles, no relief is warranted and this Court should affirm the trial court's order denying post-conviction relief.

Issue II: The prosecutor comments claim

The trial court correctly summarily denied, as procedurally barred, post-conviction claim V, which sought to raise a substantive claim of allegedly improper prosecutor comments.

Further, none of the opening remarks, in context, were improper and Long's conclusory IAC allegations are insufficient to warrant relief. Post-conviction claims may be summarily denied when they are legally insufficient, should have been brought on direct appeal, or are refuted by the record.

62 ARGUMENT

ISSUE I

THE TRIAL COURT PROPERLY DENIED THE MOTION FOR POST- CONVICTION RELIEF WHERE DEFENDANT LONG FAILED TO ESTABLISH DEFICIENT PERFORMANCE BY TRIAL COUNSEL AND RESULTING PREJUDICE UNDER STRICKLAND.

In this post-conviction appeal, Long seeks to relitigate his previously-denied challenges to his guilty pleas, this time under the guise of ineffective assistance of trial counsel. The trial court properly denied post-conviction relief because Long failed to establish any deficient performance and resulting prejudice under Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052 (1984) and its progeny.

In Barnhill v. State, 971 So. 2d 106, 111 (Fla. 2007), this

Court reiterated the following standards in evaluating an

IAC/guilty plea claim:

An ineffective assistance of counsel claim involving a guilty plea is determined by the same deficient performance prong as Strickland while the second prong involves the defendant demonstrating "a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial." Grosvenor v. State, 874 So. 2d 1176, 1179 (Fla. 2004) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). This Court has found strategic decisions do not constitute ineffective assistance of counsel if alternative courses of action have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct. See Robinson v. State, 913 So. 2d 514, 524 (Fla. 2005); Brown v. State, 894 So. 2d 137, 147 (Fla. 2004). 63 Where a criminal defendant pleads guilty, the test for determining the validity of a guilty plea under the federal constitution is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct.

366 (1985) .

On direct appeal, Long v. State, 529 So. 2d 286 (Fla. 1988)

(Long I), this Court emphasized that the "principal point of appellant's argument is that, because the confession's admissibility was in question, the plea agreement must be invalidated." Long I, 529 So. 2d at 292. On resentencing appeal, Long v. State, 610 So. 2d 1268 (Fla. 1992) (Long II), this Court reaffirmed the validity of Long's guilty pleas and reiterated that Long's "decision to plead was based on a reasonable defense theory to avoid the imposition of the death penalty in the other murders and to escape the death penalty in this case [the murder of M.S.] by establishing that he was a severely mentally ill individual." Long II, 610 So. 2d at 1274.

On direct appeal, this Court described the chronology of events and analyzed the validity of Long's guilty plea. This

Court noted that after Long's entry of a plea agreement with the

State on September 23, 1985, and adjudication on the

64 Hillsborough cases except the M.S. murder charge, Long moved to withdraw from the plea agreement on December 11, 1985. Long testified, in part, about an earlier misunderstanding regarding the right to appeal his confession. The trial court determined that Long should be allowed to withdraw his previously entered guilty pleas. Long I, at 287-289. The trial court authorized

Long to elect whether he wished to continue on the previously- entered pleas of guilty or withdraw them. After an overnight recess, Long came back before the trial court and elected not to withdraw his previously-entered pleas of guilty. On direct appeal, this Court quoted from the plea agreement and transcript of that plea inquiry at length. Long I, 529 So. 2d at 288-290.

Long was represented at his (first] sentencing hearing by a successor attorney, Ellis Rubin,' who filed a motion to set aside the plea agreement, claiming the plea agreement provided for a waiver of the right to contest the admissibility of unconstitutionally obtained statements and evidence. The trial court denied the motion to set aside the plea agreement. On direct appeal, this Court affirmed the judgment and upheld

Long's guilty plea against the challenge that the trial court had erred in refusing to vacate the plea, citing both Rule 3.170

5Any claim based on Attorney Ellis Rubin's representation at the first penalty phase is rendered moot by virtue of this Court's decision in Long I, remanding for a new penalty phase. 65 and Boykin v. Alabama, 395 U. S. 238 (1969) . This Court summarized the substance of Long' s argument, noting:

The principal point of appellant' s argument is that, because the confession' s admissibility was in question, the plea agreement must be invalidated. We disagree. In this case, appellant received multiple life sentences for each of the other seven murders and eight sexual battery offenses with which he was charged in Hillsborough County, all but one of which were concurrent sentences, and an agreement not to use those convictions in the penalty phase of this proceeding. Appellant entered the plea after extended discussions with counsel and the court. On its face, the plea agreement reflects that the number of possible offenses in Hillsborough County for which a death sentence could be imposed was reduced from seven to one. The record clearly reflects that appellant made an informed choice with full knowledge that the admissibility of the confession was an issue to which he was waiving his appeal rights .

The guilty plea itself is a confession. Appellant is arguing that, because the confession entered into on November 16, 1984, was later invalidated, see, Long v. State, 517 So, 2d 664 (Fla. 1987) , the confession by guilty plea entered on December 12, 1985, should also be declared invalid.

Long I, 529 So. 2d at 291 (e.s.)

This Court ultimately concluded:

. . . There is no question from our review of this record that appellant's decision to plead guilty, after consulting with his attorney, was a tactical decision. Under this plea agreement, if counsel could obtain a jury recommendation of life because of appellant' s mental problems, a life sentence could probably be sustained and appellant would not be subject to be tried for any other offenses in Hillsborough County for which the death penalty could be imposed. We find no basis in this record to show that appellant' s counsel was incompetent or ineffective. Under the facts, the 66 plea agreement was clearly voluntary and entered with appellant' s full understanding that he was expressly waiving his right to challenge the confession' s admissibility. To accept appellant' s argument would mean that there never could be an express waiver of prior legal challenges in pretrial matters by a guilty plea. [4] As reiterated above, that is not the law. Since we have upheld the validity of the plea, appellant's other related claims are without merit.

Long I, 529 So. 2d at 291 (e.s.)

On Long's resentencing appeal, this Court reiterated, in pertinent part:

We fully articulated why Long' s plea agreement was valid in our decision in Long v. State, 529 So.2d 286 (Fla. 1988) , and we reiterate here our conclusion that Long's guilty plea was valid. The record clearly reflects Long's understanding that the convictions occurring before the time he entered into the plea agreement could be used against him in aggravation. Long is an intelligent defendant, and he entered the plea agreement with full knowledge of his prior convictions . His decision to plead was based on a reasonable defense theory to avoid the imposition of the death penalty in the other murders and to escape the death penalty in this case by establishing that he was a severely mentally ill individual.

Long II, 610 So. 2d 1268, at 1274 (e.s.)

In short, on two previous appeals, this Court -- with eight different Justices reviewing the matter - concluded, without dissent, that Long's guilty pleas were valid. Long's plea agreement (RS V10/1252-1255; 1340-1343) and entry of plea (RS

V13/1778-1800) and reconfirmation of plea on December 12, 1985,

(RS V13/1757-1777) were before this Court on direct appeal,

67 resentencing appeal, and again in this post-conviction appeal.

(PCR V8/1469-1473; 1475-1498; PCR V9/1515-1536; 1537-1589).

Long's current arguments are predicated on the same underlying complaints (the consequences of the plea had not been fully explained to him) that were the basis for challenging the validity of his guilty pleas on direct appeal and resentencing appeal. Therefore, Long's attempt to challenge the validity of his guilty plea, under the guise of ineffective assistance of counsel due to the alleged failure to explain the consequences of his plea, is successive and barred by the law of the case doctrine and res judicata. See, Florida Dep't of Transp. v.

Juliano, 801 So. 2d 101, 107 (Fla. 2001) (clarifying the scope of both doctrines); Cf. Parker v. State, 873 So. 2d 270, 278

(Fla. 2004) (ruling that law of the case and res judicata did not bar Parker from litigating claims at a new penalty phase).

The Performance Prong of Strickland

The two-part test stated in Strickland applies to challenges to guilty pleas based on a claim of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 57, 106

S.Ct. 366, 369-70 (1985); Premo v. Moore, 131 S.Ct. 733, 740-43

(2011) . "Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether 68 counsel's advice was within the range of competence demanded of attorneys in criminal cases." Hill, 474 U.S. at 56, 106 S.Ct. at 369. In evaluating IAC/guilty plea claims, the Supreme Court has recognized strategic choices made in balancing

"opportunities and risks" and emphasized the importance of strict adherence to Strickland, noting that

[a]n attorney often has insights borne of past dealings with the same prosecutor or court, and the record at the pretrial stage is never as full as it is after a trial. In determining how searching and exacting their review must be, habeas courts must respect their limited role in determining whether there was manifest deficiency in light of information then available to counsel.

Premo, --- U.S. at ----, 131 S.Ct. at 741.

In every IAC case, the reviewing court should judge the attorney's performance within the context of the case as a whole, taking into account all relevant circumstances.

Strickland, 466 U.S. at 690. The reviewing court must evaluate the conduct from the attorney's perspective at the time and indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.

In post-conviction, Long agreed that he entered into this plea agreement to limit his exposure to the death penalty and because he did not want to go through eight murder trials. (PCR

V13/179). Long testified at the post-conviction hearing via

69 telephone; Long did not want to attend the hearing in person,

Long did not want to be present by phone for any testimony other than his own, and Long insisted "I don't ever want to come down there [Hillsborough County] for any reason." (PCR V13/189).

Long admitted that nobody forced him into the plea agreement and he understood the proceedings that were going on at the time of the entry of the plea. (PCR V13/158-159) . Long admitted that he knew, after the December 11, 1985 hearing, that he could withdraw his plea and proceed with a motion to suppress, but he elected not to withdraw his plea on December 12, 1985; Long understood that he was waiving any right to challenge his confession. (PCR V13/173; 181). According to Long, he only wanted someone to help him "decide what to do." (Initial Brief at 81) . In 1985, Long had both the recommendations from his

Hillsborough attorneys and the contrary recommendations from his

Pasco attorneys (Norgard and Grantham). (PCR V13/172).

The trial court found that Long failed to establish any deficient performance under Strickland:

Additionally, the testimony and evidence presented during the May 2011 and June 2011 evidentiary hearings clearly reflect Defendant was capable of entering a knowing, voluntary and intelligent plea and was not impaired by brain damage, mental illness, psychotropic medications, or otherwise. Dr. Berland testified that Defendant had a mild brain injury but the impairment was mild to moderate . Although Defendant clearly had mental health issues, those issues were related to the penalty phase [fn3] and did not rise to the level of insanity or any defense in the guilt phase . Nor did those mental health issues impair his competence to proceed or make decisions in his cases . None of the mental health evaluations found Defendant was incompetent to proceed and the testimony reflected that neither Mr. Fraser, Mr . Alldredge , Mr . Grantham nor Dr . Berland ever had any doubt as to Defendant' s ability to enter a knowing, voluntary and intelligent plea or decide whether to withdraw that plea once entered.

[fn3] Indeed, the record reflects that in each penalty phase in this case, the trial court found Defendant had established the offense was committed under the influence of extreme mental or emotional disturbance and that his capacity to appreciate the criminality of his conduct or

71 conform his conduct to the requirement of the law was substantially impaired.

Moreover, the testimony and evidence do not reflect Defendant' s contention that he was on medication during the proceedings at issue. As Dr. Otto noted, none of the documentation corroborates Defendant's allegation. Defendant's own letters reflect that the county jail wouldn' t even allow him a Tylenol and Mr . Alldrege recalled that there was an issue trying to get Defendant some mild medication at the jail. Even if Defendant had been taking a mild antidepressant to help him sleep, there is no evidence that it impaired his competence to enter a knowing, voluntary and intelligent plea.

Additionally, although the testimony reflected Defendant had a contentious relationship with Mr . O'Connor, the testimony and evidence do not reflect that Mr. O'Connor coerced or pressured Defendant into entering the plea agreement or not withdrawing his plea. In fact, on December 11, 1985, when Defendant was given the opportunity to withdraw his plea, he had the benefit of his Pasco County attorneys present, urging him to withdraw his plea. He further contacted an attorney unrelated to the case and she likewise advised him to withdraw his plea. As Defendant conceded on cross-examination, he knew he could either decide to withdraw his plea and pursue a motion to suppress his confession or continue with the plea agreement as it stood, and he deliberately chose not to withdraw his plea. For the aforementioned reasons, the Court finds Defendant has failed to establish counsel performed deficiently.

PCR V7/1206-1207; 1243-1244 (e.s.)

Long argues that the testimony of Long and Attorney

Grantham (co-counsel on the Pasco case) was "critical" to show that no one went over the plea agreement with him at the group meeting on December ll, 1965. However, Long's plea was entered

72 on September 23, 1985. Long previously admitted that he was given a copy of the plea agreement and he read over it prior to his plea on September 23, 1985. In addition, attorney Grantham was only on the Pasco County case and, as a result, Grantham would not have been privy to all of O'Connor's discussions with

Long on the Hillsborough cases. Furthermore, as to Long's claim that no one ever went over the agreement with him, the trial court found Long not credible. Long's post-conviction testimony in 2011 largely repeated his prior testimony before Judge

Lazzara in 1989. In 1989, attorney O'Connor also testified before Judge Lazzara and confirmed that he did review the plea agreement with Long before Long entered his plea. O'Connor testified that he went over the agreement with Long prior to

Long's signing it; 0"Connor was satisfied that Long understood the agreement as it applied to him at the time. (RS V7/78) .

Indeed, as the post-conviction court noted:

Mr. O'Connor testified during the February 10, 1989 hearing and asserted that he reviewed the plea form with Defendant before he signed it and again when Defendant had the opportunity to withdraw his plea. (See State's Exhibit #13, pp. 77-79). He further explained that his strategy in reference to the plea agreement was to minimize Defendant' s potential exposure to the death penalty; he was apprehensive that the confession would ultimately be suppressed on appeal, and was aware of the possibility that different physical evidence existed in some of the eight capital cases where the State may have been able to proceed even without the confession. (See State' s 73 Exhibit #13, pp. 79-84, 87-90) . During that hearing Defendant also testified that he entered into the plea agreement to limit his exposure to the death penalty and "didn' t want to go through eight murder trials Just like I don' t want to come down here for all these hearings." (See State's Exhibit #13, pp. 64-65).

(PCR V9/1202-1203; 1239-1240) (e.s.).

In 1985, Long had the benefit of the advice and the differing recommendations from both his Hillsborough attorneys and his Pasco attorneys. When Long ratified his plea on

December 12, 1985, Long undeniably knew that he waived any suppression claim by virtue of his plea. Long's guilty plea agreement assured Long that the prosecutor in Hillsborough

County would seek the death penalty in only one Hillsborough murder case. As the United States Supreme Court noted in Premo,

In the case of an early plea, neither the prosecution nor the defense may know with much certainty what course the case may take. It follows that each side, of necessity, risks consequences that may arm.se from contingencies or circumstances yet unperceived. The absence of a developed or an extensive record and the circumstance that neither the prosecution nor the defense case has been well defined create a particular risk that an after-the-fact assessment will run counter to the deference that must be accorded counsel' s judgment and perspective when the plea was negotiated, offered, and entered.

Premo, --- U.S. at ----, 131 S.Ct. at 742 (e.s.)

Trial counsel' s recommendation was based on a reasonable defense strategy that assured Long that the State would be able to seek a death sentence in only one of the eight homicide cases 74 in Hillsborough County. As this Court previously found, Long's

"decision to plead was based on a reasonable defense theory to avoid the imposition of the death penalty in the other murders and to escape the death penalty in this case by establishing that he was a severely mentally ill individual." Long II, 610

So. 2d at 1274. Long failed to demonstrate any deficiency of counsel based on trial counsel's strategic recommendation.

Long does not appear to contend that he was legally incompetent to enter a plea. In Dusky v. United States, 362

U.S. 402, 402, 80 S.Ct. 788, 788, (1960) (per curiam), the

United States Supreme Court held that the standard for competence to stand trial is "whether [a defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and "has a rational as well as factual understanding of the proceedings against him." The competency standard for pleading guilty is identical to that for standing trial. Godinez v. Moran, 509 U. S. 389,

398-99, 113 S.Ct. 2680, 2686 (1993).

Nevertheless, to the extent Long arguably suggests that

Long's "mental health disabilities" adversely affected his competence to enter a plea, there was no legitimate basis to challenge Long's competence to enter his plea. The contemporaneous reports of the psychiatric experts in 1985, 75 including Dr. Gonzalez and Dr. Sprehe, agreed that Long was competent. (PCR V9/1606-1608; 1609-1611). Attorney Alldredge believed Long was mentally ill, but not incompetent. At no time did Alldredge see any impairment of Long's cognitive abilities; there was absolutely no evidence that Long was incompetent to stand trial. (PCR V14/229). Long was examined by many health professionals and none of them had any doubts as to his mental competency to proceed, including competency to enter a plea.

(PCR V14/229). According to Alldredge, Long would try to manipulate people for his own benefit. Long appeared paranoid; he distrusted the jail staff, his lawyers and the psychiatrists.

(PCR V14/250). Dr. Berland met with Long on October 25, 26 and

27, 1985; according to Dr. Berland, Long was not incompetent and he did not meet the criteria for insanity. (PCR V14/262-263;

265; 288). Dr. Berland had nothing to suggest that Long had any mental problems that would prevent him from making a knowing and intelligent decision not to withdraw his guilty plea in December of 1985. Attorney Fraser never felt that Long was incompetent to proceed or assist counsel, or unable to make knowing, voluntary and intelligent decisions. Likewise, attorney

Grantham, co-counsel on the Pasco case, never felt that Long was incompetent.

76 In evaluating counsel's advice concerning a plea, the

Supreme Court has cautioned reviewing courts to "respect the latitude Strickland requires" by according substantial deference to counsel's judgment. Premo, 131 S.Ct. at 741, 742. The question is not "whether a court would retrospectively consider counsel's advice to be right or wrong, but . . . whether that advice was within the range of competence demanded of attorneys in criminal cases." Hill, 474 U.S. at 56. Long's "decision to plead was based on a reasonable defense theory to avoid the imposition of the death penalty in the other murders and to escape the death penalty in this case by establishing that he was a severely mentally ill individual." Long II, 610 So. 2d at

1274. Strategic decisions do not constitute ineffective assistance of counsel if alternative courses of action have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct. Robinson v. State, 913

So. 2d 514, 524 (Fla. 2005).

The prejudice prong of Strickland

In evaluating the prejudice requirement of Strickland when the claim involves a challenge to a guilty plea based on ineffective assistance, the defendant must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to 77 trial." Hill, 474 U.S. at 59. In this case, the trial court correctly applied this standard and found that Long failed to establish prejudice under Strickland:

The Court further finds Defendant has failed to establish prejudice. In determining ineffective assistance claims where a plea was entered, 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." Grosvenor, 874 So. 2d 1176, 1181 (Fla. 2004). "[in determining whether a reasonable probability exists that the defendant would have insisted on going to trial, a court should consider the totality of the circumstances surrounding the plea, including such factors as whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial." Id. at 1181- 82. "Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. 668, 687 (Fla. 1984).

In the instant matter, Defendant has failed to demonstrate that he would have insisted on going to trial but for counsel's deficient performance. First, as previously indicated, Defendant has failed to establish a mental health defense that would have succeeded at trial. The testimony and evidence reflect Defendant was competent and not insane, and the attorneys each testified that there was no mental health defense in the guilt phase. As to the possible defense of challenging his confession, Defendant has not demonstrated he would not have received a death sentence in any of the eight cases absent that confession.

Furthermore, it is clear to this Court Defendant understood that as part of the plea agreement he was 78 waiving his right to challenge the issues related to his confession and elected to proceed with the plea agreement as it stood. The December 12, 1985 plea colloquy leaves no doubt that Defendant knew and understood the full nature and consequences of the plea agreement.

Additionally, although the plea agreement included the possibility that he could receive the maximum penalty - death - it is clear that the plea agreement minimized his exposure to such a sentence by allowing the State to pursue it in only one of his eight Hillsborough County capital cases . As acknowledged by Defendant in the instant proceedings as well as the February 10, 1989 hearing, he entered into the plea agreement specifically to limit his exposure to the death penalty and because he did not want to return here and go through eight murder trials . It is clear to this Court Defendant would not have proceeded with eight guilt phases and eight possible penalty phases. The Court finds it remarkable that Defendant did not even want to be present, physically or by telephone, for any portion of the instant proceedings except his own telephonic testimony. As Defendant noted to the Court, "I would just like to say that I don' t ever want to come down there for any reason." (May 9, 2011 transcript, p. 153, attached) . It is not reasonable to believe Defendant would have wanted to endure eight guilt phases and eight possible penalty phases .

Under the totality of the circumstances, there is no reasonable probability that Defendant would not have pled guilty and insisted on proceeding to trial but for counsel' s performance . Consequently, the Court finds Defendant has failed to demonstrate prejudice. As Defendant has failed to demonstrate either deficient performance or prejudice under Strickland, the Court finds relief is not warranted on ground II .

As to ground III-3, the Court incorporates its findings as to ground II and finds Defendant is likewise not entitled to relief . As mentioned supra, the testimony and evidence presented during the May and June 2011 evidentiary hearings reflect that 79 Defendant was not only capable of entering a knowing, voluntary and intelligent plea, but that he did so. The testimony and evidence do not support his allegations that his ability to enter a knowing, voluntary and intelligent plea was impaired by brain damage, mental illness, psychotropic medications, or otherwise. Although Dr. Berland testified that Defendant had a mild brain injury and psychotic disturbances, his impairment was mild to moderate. The record reflects Defendant had mental health issues, but those issues were related to the penalty phase and did not rise to the level of insanity or any defense in the guilt phase, and those mental health issues did not impair his competence to proceed or make decisions in his cases . The court file and record simply do not reflect that his decisions about entering or not withdrawing his plea were anything but knowing, voluntary and intelligent. As such, no relief is warranted on claim III-3.

PCR V7/1210; 1246-1247 (e.s.)

According to Long, he never asserted any mental health defense for the guilt phase. (Initial Brief at 83). However,

Long's amended 3.851 motion did claim that trial counsel failed to explain how Long's alleged "brain damage and disorders could have been used as a defense." (PCR V5/805).

Long's claim of "prejudice" is based, primarily, on this

Court's initial decision in Long's Pasco trial case, Long v.

State, 517 So. 2d 664 (Fla. 1988). (Initial Brief at 84). On direct appeal in the Pasco County case, this Court held that

Long's statement "I think I might need an attorney" was equivocal and the investigating officers did not attempt to clarify the equivocal request for counsel and "[w]ithout this 80 equivocal request for counsel, we would find this confession voluntary and admissible." Long, 517 So. 2d at 667. However, the United States Supreme Court ruled in Davis v. United States,

512 U. S. 452 (1994) that neither Miranda nor its progeny require police officers to stop interrogation when a suspect in custody, who has made a knowing and voluntary waiver of his Miranda rights, thereafter makes an equivocal or ambiguous request for counsel. This Court has adopted Davis and receded from that portion of the Long [Pasco) decision. See State v. Owen, 696

So. 2d 715, at 718, 720 (Fla. 1997) ("Davis now makes it clear that, contrary to our belief at the time, federal law did not require us to rule Owen's confession inadmissible.")

Even if Long arguably could show any deficiency, which the

State emphatically denies, Long cannot establish prejudice under

Strickland. In Lockhart v. Fretwell, 506 U. S. 364 (1993) the

Supreme Court held that trial counsel's failure to make an objection in a state sentencing proceeding -- an objection that would have been supported by a decision which subsequently was overruled -- did not constitute prejudice under Strickland:

Because the result of the sentencing proceeding in this case was rendered neither unreliable nor fundamentally unfair as a result of counsel's failure to make the objection, we answer the question in the negative. To hold otherwise would grant criminal defendants a windfall to which they are not entitled.

81 506 U.S. at 366. Here, as in Fretwell, this case concerns a

"circumstance where the defendant attempts to demonstrate prejudice based on considerations that, as a matter of law, ought not inform the inquiry." Fretwell, 506 U.S., at 373, 113

S.Ct. 838 (O'Connor, J., concurring).

The defendant is the one who has "the ultimate authority" to determine "whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal." Jones v. Barnes, 463

U.S. 745, 751, 103 S.Ct. 3308 (1983); Wainwright v. Sykes, 433

U.S. 72, 93, n.1, 97 S.Ct. 2497 (1977J (Burger, C. J., concurring); Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551,

560 (2004). Long's statement that he "can only be executed once" ignores that his strategy, at the time of his plea, "was based on a reasonable defense theory to avoid the imposition of the death penalty in the other murders and to escape the death penalty in this case [the murder of M.S.] by establishing that he was a severely mentally ill individual." Long II, 610 So. 2d at 1274. It is the defendant's burden to establish both deficient performance and resulting prejudice and Long failed to establish both prongs of Strickland. Long's third request to set aside his 1985 guilty plea should be denied, once again.

82 ISSUE II

THE POST-CONVICTION COURT CORRECTLY SUMMARILY DENIED LONG' S CLAIM OF ALLEGEDLY IMPROPER PROSECUTORIAL COMMENTS AT THE PENALTY PHASE .

Post-conviction claims "'may be summarily denied when they are legally insufficient, should have been brought on direct appeal, or are positively refuted by the record.'" Marek v.

State, 8 So. 3d 1123, 1127 (Fla. 2009) (quoting Connor v. State,

979 So. 2d 852, 868 (Fla. 2007)).

The trial court summarily denied, as procedurally barred,

Long's post-conviction claim V, which sought to raise a substantive claim of allegedly improper prosecutor comments.

The trial court's 2004 order states, in pertinent part:

Mr. Long alleges that the prosecutors' acts of misconduct, both individually and cumulatively, at both the original and second penalty phase trial, deprived Mr. Long of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Mr. Long takes issue with the following comments made by the prosecutor during the second penalty phase: (1) ". . . Robert Joe Long deserves to die for the brutal murder of [M.D.S.];" (2) "I don't like showing them [photographs of the victim] to you, but first-degree murder is not a pleasant subject;" (3) "Those aggravating circumstances will clearly outweigh any mitigating which will justify your recommendation to Judge Lazara that this man right here sentenced to death for the murder of [M. D. S. ] ; " (4 ) "The punishment must fit the crime;" (5) "You [referring to the Judge], as the ultimate sentencer, you are aware of what the aggravating circumstance [referring to the cold, calculated, premeditated aggravating circumstance]

83 means:" and (6) questioned Dr. Money whether the witness had examined someone for competency and insanity, in addition to matters about transsexual persons. Mr. Long maintains that the aforementioned comments of the prosecutor were (1) argumentative; (2) not supported by admissible evidence; (3) improper comments on the credibility of witnesses; (4) equated Mr. Long's burden of showing statutory mitigation with proof of incompetency and/or insanity; and/or(5) not relevant, or if relevant, the prejudicial effect outweighed any probative value.

As to the substantive claim, allegations of prosecutorial misconduct during penalty phase are procedurally barred in a postconviction motion. See Gaskin v. State, 737 So. 2d 509 (Fla. 1999); Spencer v. State, 842 So. 2d 52 (Fla. 2003) (claims of prosecutorial misconduct could and should have been raised on direct appeal and thus were procedurally barred from consideration in a post-conviction motion). As such, no relief is warranted on this portion of ground V of Mr. Long's Motion.

Additionally, Mr . Long argues that to the extent trial counsel did not properly preserve this claim, Mr. Long alleges that he received ineffective assistance of counsel resulting in prejudice and a manifest injustice. However, "allegations of ineffective assistance of counsel cannot be used to circumvent the rule that postconviction proceedings cannot serve as a second appeal." Thompson v. State, 759 So. 2d 650, 653 (Fla. 2000), citing Teffeteller v. Dugger, 734 So. 2d 1009, 1023 (Fla. 1999). On direct appeal, Mr. Long argued such authorities in allowing the State to make closing arguments that were not based on evidence in the case and by the scope of jury deliberations in issues VII and VIII of his direct appeal and the Florida Supreme Court found such arguments as not meriting discussion. Long v. State, 610 So. 2d 1268, 1274 (Fla. 1992) . Since the allegation was raised and addressed on direct appeal, Mr. Long is therefore precluded from relitigating the claim by couching it as ineffective assistance of counsel. As such, no relief is warranted as to this portion of ground V of Mr. Long's Motion. 84 (April 6, 2004 Order, PCR V5/866-68)

On resentencing appeal, Long argued claims of allegedly improper prosecutorial comments at closing in Issues VII and

VIII and this Court rejected those arguments as not meriting discussion. Long II, 610 So. 2d at 1275. A post-conviction motion is not a second appeal. Spencer v. State/Crosby, 842 So.

2d 52 (Fla. 2003) (substantive claims of prosecutorial misconduct and juror bias procedurally barred since not raised on appeal); Allen v. State/Crosby, 854 So. 2d 1255, 1258, n. 4

(Fla. 2003); Gore v. State, 846 So. 2d 461, 466, n. 4 (Fla.

2003) (procedurally barred claims that should have been raised on direct appeal are not properly raised in post-conviction and cannot be resurrected by making conclusory ineffective assistance of counsel allegations). Long's vague and conclusory

IAC allegations are insufficient to warrant relief. See, Doorbal v. State, 983 So. 2d 464, 482 (Fla. 2008). Further, none of the opening remarks, in context, were improper, and Strickland calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind. Where claims are procedurally barred, legally insufficient or conclusively refuted by the record, summary denial should be affirmed.