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Appendix to the Petition for a Writ of Certiorari No. ------ 3Jn tbe ~upreme <!Court of tbe fflniteb ~tate~ KENNETH DARCELL QUINCE A/K/A RA.SIKH ABDUL-HAKIM, Petitioner, V. STATp OF FLORIDA, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA APPENDIX TO THE PETITION FOR A WRIT OF CERTIORARI DEA TH PENALTY CASE RAHEELA AHMED COUNSEL OF RECORD FLORIDA BAR No. 0713457 [email protected] MARIA CHRISTINE PERINETTI FLORIDA BAR No. 0013837 [email protected]. US LISA MARIE BORT FLORIDA BAR NO; 0119074 [email protected] ASSISTANT CCRCs LAW OFFICE OF THE CAPITAL COLLATERAL REGIONAL COUNSEL - MIDDLE REGION 12973 NORTH TELECOM PARKWAY, TEMPLE TERRACE, FLORIDA 33637-0907 (813) 558-1600 Counsel for the Petitioner, Kenneth D. Quince. CONTENTS OF APPENDIX INDEX TO APPENDICES Appendix A. Revised opinion of the Supreme Court of Florida affirming the lower court's denial of relief. Quince v. State, Appeal No. SCI 7-127 (April 12, 2018). Appendix B. Order of the Supreme Court of Florida granting the State's motion for clarification and denying Quince's motion for rehearing. Quince v. State, Appeal No. SCI 7-127 (April 12, 2018). Appendix C. Quince's motion for rehearing filed before the Supreme Court of Florida. Quince v. State, Appeal No. SCI 7-127 (February 1, 2018). Appendix D. State of Florida's motion for clarification filed before the Supreme Court of Florida. Quince v. State, Appeal No. SCI 7-127 (January 23, 2018). Appendix E. Initial opinion of the Supreme Court of Florida affirming the lower court's denial ofrelief. Quince v. State, Appeal No. SC17-127 (January 18, 2018). Appendix F. Final Order of the Circuit Court of the Seventh Judicial Circuit in and for Volusia County, Florida, denying Quince's renewed motion for determination of intellectual disability as a bar to execution. Circuit Court Case No. 80-00048CFAES (December 28, 2016). Appendix G. Non-final Order of the Circuit Court of the Seventh Judicial Circuit in and for Volusia County, Florida, on Quince's renewed motion for determination of intellectual disability as a bar to execution under Florida Rule of Criminal Procedure 3.203 and §921.137, Florida Statutes. Circuit Court Case No. 80- 00048CF AES (May 17, 2017). Appendix H. Table from an excerpt of Quince's initial brief to the Supreme Court of Florida demonstrating Quince's intelligent quotient scores, his scores with the Flynn effect correction, his scores with the standard error measurement, and his scores with the Flynn effect correction and standard error of measurement. Quince v. State, Appeal No. SCI 7-127 (filed on April 12, 2017). Appendix I. Table from an excerpt of Quince's initial brief to the Supreme Court of Florida demonstrating Quince's evidence of concurrent deficits in present adaptive functioning. Quince v. State, Appeal No. SCI 7-127 (filed on April 12, 2017). No. ----- 3ln tbe ~upreme qtourt of tbe ffintteb ~tate, KENNETH DARCELL QUINCE A/KIA RA.SIKH ABDUL-HAKIM, Petitioner, V. STA TE OF FLORIDA, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA APPENDIX TO THE PETITION FOR A WRIT OF CERTIORARI DEA TH PENALTY CASE Appendix A. Quince v. State, 241 So.3d 58 (2018) 43 Fla. L. Weekly S175 Pamela Jo Bondi, Attorney General, Tallahassee, Florida, 241 So.3d 58 and Doris Meacham, Assistant Attorney General, Supreme Court of Florida. Daytona Beach, Florida, for Appellee Kenneth Darcell QUINCE, Appellant, Opinion V. STATE of Florida, Appellee. PERCURIAM. No. SC17-127 *59 Kenneth Darcell Quince, a prisoner under sentence I of death, appeals the trial court's order summarily denying [April 12, 2018] his renewed motion for a determination of intellectual disability as a bar to execution, which was filed under Synopsis Florida Rule of Criminal Procedure 3.203 and section Background: Prisoner under sentence of death filed 921.137, Florida Statutes (2015). We have jurisdiction. See a renewed motion for a determination of intellectual art. V, § 3(b)(l), Fla. Const. For the reasons we explain, disability as a bar to execution. The Circuit Court, Volusia we affirm the denial of relief. County, Joseph G. Will, J., summarily denied the motion, and prisoner appealed. I. BACKGROUND Holdings: The Supreme Court held that: In 1980, Quince pleaded guilty to first-degree felony murder and burglary of a dwelling and, after waiving his [1] competent, substantial evidence existed to support trial right to a penalty phase jury, was sentenced to death. We court's decision not to apply the "Flynn" effect to adjust affirmed Quince's death sentence on direct appeal. Quince IQ scores of prisoner under sentence of death downward, v. State, 414 So.2d 185, 189 (Fla. 1982). Quince filed an as required to establish the significantly subaverage initial motion for postconviction relief, the denial of which general intellectual functioning prong of the intellectual was eventually affirmed on appeal. See Quince v. State, disability standard, under which imposition of prisoner's 732 So.2d 1059 (Fla. 1999); Quince v. State, 592 So.2d 669 death sentence would be prohibited, and (Fla. 1992); Quince v. State, 477 So.2d 535 (Fla. 1985). In 2004, Quince filed a successive motion for postconviction [2] trial court was not required to make any specific factual relief under Florida Rules of Criminal Procedure 3.851 findings as to whether prisoner had established that he and 3.203, in which he sought to vacate his death sentence met either the second or third prongs of the intellectual on the ground that he is intellectually disabled and disability standard. therefore ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and section 921.137, Florida Statutes (2003). 1 Affirmed. In 2008, an evidentiary hearing was held, at which the trial court heard evidence regarding all three prongs of the intellectual disability standard and thereafter denied An Appeal from the Circuit Court in and for the motion based solely on Quince's failure to meet the Volusia County, Joseph G. Will, Judge-Case No. significantly subaverage general intellectual functioning 642017CF101850XXXADL prong. The denial of relief was affirmed on appeal. Quince Attorneys and Law Firms v. State, No. SCI 1-2401, 2012 WL 6197458, at *1-2 (Fla. Dec. 10, 2012) (116 So.3d 1262 (table)), cert. denied, - James Vincent Viggiano, Jr., Capital Collateral Regional U.S.-, 134 S.Ct. 2695, 189 L.Ed.2d 743 (2014). Counsel, Raheela Ahmed, Maria Christine Perinetti, Lisa Marie Bort, and Reuben Andrew Neff, Assistant Capital Section 921.137 requires a defendant to establish his Collateral Regional Counsel, Middle Region, Temple or her intellectual disability by demonstrating the Terrace, Florida, for Appellant following three factors: (I) significantly subaverage WESlLAW @ 20'18 Thomson Reuters. No daim to original U.S. Government Works. Quince v. State, 241 So.3d 58 (2018) 43 Fla. L. Weekly S175 general intellectual functioning; (2) concurrent applied retroactively to his case but disagreed that deficits in adaptive behavior; and (3) manifestation of Quince should be allowed to prove his intellectual the condition before age eighteen. § 921.137(1), Fla. disability by a preponderance of the evidence instead Stat. The defendant has the burden to prove that he or of clear and convincing evidence. The trial court she is intellectually disabled by clear and convincing stated that it would review the record and evidence evidence.§ 921.137(4), Fla. Stat. from Quince's 2008 intellectual disability hearing and In 2014, the United States Supreme Court issued its reconsider his intellectual disability claim in light of decision in Hall v. Florida, - U.S. -~, 134 S.Ct. Hall. After reviewing the record and considering written 1986, 1990, 188 L.Ed.2d 1007 (2014), in which it held memoranda from both parties, the trial court concluded that Florida's interpretation of its statute prohibiting the that Quince failed to prove that he is intellectually disabled imposition of the death sentence upon an intellectually because none of the three IQ scores he had presented disabled defendant as establishing a strict IQ test score -79, 77, and 79-fell within the SEM and Quince cutoff of 70 "creates an unacceptable risk that persons "was not precluded from presenting additional evidence with intellectual disability will be executed, and thus is of intellectual disability, including testimony regarding unconstitutional." Instead of applying the strict cutoff adaptive deficits." This appeal follows. when assessing the subaverage intellectual functioning prong of the intellectual disability standard, courts must now take into account the standard error of measurement II. ANALYSIS (SEM) of IQ tests. See Hall, 134 S.Ct. at 2001. And "when a defendant's IQ test score falls within the [1) Quince contends that the trial court erred in test's acknowledged and inherent margin of error, the failing to find that he meets the first prong of the defendant must be able to present additional *60 intellectual disability standard-significantly subaverage evidence of intellectual disability, including testimony general intellectual functioning-because it did not adjust regarding adaptive deficits." Id. his IQ scores to account for the Flynn effect. 2 According to Quince, because Hall requires courts assessing IQ to In the wake of Hall, Quince filed a renewed motion allow professional standards to inform their decisions, for a determination of intellectual disability as a bar the trial court was required to apply the Flynn effect to to execution in 2015. Quince did not request another adjust his IQ scores down. Although the only IQ scores evidentiary hearing or seek to present any new evidence Quince has presented are a 79 (obtained using the WAIS of his alleged intellectual disability but simply asked the in 1980), a 77 (obtained using the WAIS-R in 1984), and a trial court to review the record from the 2008 intellectual 79 (obtained using the WAIS-III in 2006), he claims that disability hearing in light of Hall.
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