McPherson v. State

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

IRA DEMETRIUS McPHERSON, )
)
Appellant, )
)
v. ) Case No. 2D13-3018
)
STATE OF FLORIDA, )
)
Appellee. )
)

Opinion filed December 23, 2015.

Appeal from the Circuit Court for
Hillsborough County; Ronald Ficarrotta,
Judge.

Howard L. Dimmig, II, Public Defender, and
Maureen E. Surber, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Jessica Stephans,
Assistant Attorney General, Tampa, for
Appellee.

WALLACE, Judge.

Ira Demetrius McPherson challenges the new sentence imposed on him

after the trial court vacated his life sentence and resentenced him under Graham v.

Florida, 560 U.S. 48 (2010). Mr. McPherson's sole argument on appeal is that the trial

court erred in imposing an upward departure sentence without providing oral or written
reasons for the upward departure. Because the record demonstrates that the trial court

adopted the written reasons for departure stated on the guidelines scoresheet that was

prepared for the initial sentencing proceeding, we affirm.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

On October 3, 1994, Mr. McPherson was convicted of robbery with a

firearm as a principal in violation of section 812.13(2)(a), Florida Statutes (1993). The

offense occurred on January 29, 1994. Notably, the jury found that Mr. McPherson's

codefendant possessed the firearm, not Mr. McPherson. However, as a principal to the

crime of robbery with a firearm, Mr. McPherson was subject to sentencing for that crime,

which is a first-degree felony punishable by a term of years not exceeding life

imprisonment. See § 812.13(2)(a); Poiteer v. State, 627 So. 2d 526, 527 (Fla. 2d DCA

1993) ("[A] defendant may be convicted of robbery with a firearm based on vicarious or

constructive possession of the gun (e.g., if it is carried by an accomplice) . . . ." (citing

Earnest v. State, 351 So. 2d 957 (Fla. 1977)).

The trial court imposed a life sentence on Mr. McPherson. Under the

1994 sentencing guidelines, this was a departure sentence. Mr. McPherson's

sentencing guidelines scoresheet included a preprinted list of aggravating reasons for

departure. The original sentencing court checked two of these reasons as being

applicable to Mr. McPherson, as follows: (1) "Defendant is not amenable to

rehabilitation or supervision, as evidenced by an escalating pattern of criminal conduct

as described in s. 921.001(8)" and (2) "Primary offense is scored at level 7 or higher

and the defendant has been convicted of one or more offense [sic] that scored, or would

have scored, at an offense level 8 or higher." The trial court and counsel reviewed

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these reasons for departure at Mr. McPherson's original sentencing hearing in 1994.

This court affirmed Mr. McPherson's judgment and sentence in a per curiam opinion.

McPherson v. State, 686 So. 2d 591 (Fla. 2d DCA 1996) (table decision).

Many years later, Mr. McPherson filed a motion for postconviction relief in

which he challenged his life sentence under Graham. On October 2, 2012, the

postconviction court granted Mr. McPherson's motion for postconviction relief, vacated

his life sentence, and transferred the matter to the criminal division of the circuit court

for resentencing. On April 26, 2013, the circuit court conducted a lengthy resentencing

hearing at which Mr. McPherson presented mitigating evidence about his difficult

childhood and the significant steps toward his rehabilitation that he had accomplished

while serving almost twenty years in prison. The State presented the testimony of the

victim of the armed robbery. At the conclusion of the hearing, the circuit court

sentenced Mr. McPherson to thirty years' prison, consecutive to his life sentence in case

number 94-CF-1450.1

Thereafter, Mr. McPherson filed a Motion for Rehearing to Correct an

Illegal Sentence on May 1, 2013, arguing that his thirty-year sentence on the underlying

robbery offense constituted an illegal upward departure from the guidelines sentencing

1In case number 94-CF-1450, Mr. McPherson had been sentenced to life
in prison for a felony murder. He also filed a motion for postconviction relief seeking
resentencing in that case. The postconviction court denied his motion, and this court
affirmed the order denying relief. McPherson v. State, 138 So. 3d 1201, 1202 (Fla. 2d
DCA 2014). Mr. McPherson will apparently be eligible for parole on his life sentence for
felony murder after he serves twenty-five years. Id. In our prior opinion, we noted that
Graham and Miller v. Alabama, 132 S. Ct. 2455 (2012), did "not involve life sentences
with parole eligibility after a term of years" and thus did not announce "new law directed
to a sentence like Mr. McPherson's." McPherson, 138 So. 3d at 1202. Accordingly, we
concluded that Mr. McPherson's motion for resentencing, which was filed more than two
years after his sentence became final, was untimely. Id.

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range that was not supported by written reasons for departure as required by law. He

also argued that the circuit court erred in sentencing him for the offense of robbery with

a firearm because the jury found that he did not, in fact, possess a firearm. After a

hearing held on May 7, 2013, the circuit court orally denied the motion at a hearing on

June 3, 2013, and entered a written order. The written order stated that "[a]fter

reviewing Defendant's Motion, the court file, and record, the Court finds no reason to

reconsider the sentence imposed on April 26, 2013." Mr. McPherson filed a notice of

appeal from the circuit court's April 26, 2013, Order Denying "Defendant's Motion for

Rehearing to Correct an Illegal Sentence."

On July 23, 2014, after filing his notice of appeal from the circuit court's

order, Mr. McPherson filed a Motion to Correct Sentencing Error. In that motion, Mr.

McPherson's counsel argued that no new sentencing guideline scoresheet had been

prepared and that Mr. McPherson was entitled to have a new scoresheet upon

resentencing. Counsel requested that Mr. McPherson be resentenced with a new

scoresheet. On August 11, 2014, the circuit court entered an order denying Mr.

McPherson's motion without hearing. On appeal, Mr. McPherson does not make any

argument about the denial of his July 23, 2014, motion. Thus we do not address that

issue.

II. DISCUSSION

We observe initially that although Mr. McPherson indicated on his notice

of appeal that he was appealing an order denying relief under Florida Rule of Criminal

Procedure 3.800(a), his Motion for Rehearing to Correct Illegal Sentence was properly

considered under rule 3.800(b)(1) because the motion was filed before the notice of

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appeal and had the effect of staying rendition of Mr. McPherson's new sentence. See

Hollinger v. State, 920 So. 2d 1213, 1213-14 (Fla. 1st DCA 2006). In addition, although

Mr. McPherson states in the notice of appeal that he is appealing an order denying relief

under rule 3.800(a), he cited to rule 3.800(b) in his motion. Accordingly, we treat this

appeal as a direct appeal from Mr. McPherson's amended judgment and sentence

following resentencing. See Hollinger, 920 So. 2d at 1214.

On appeal, Mr. McPherson argues that the circuit court erred in imposing

an upward departure sentence under the 1994 sentencing guidelines without providing

valid oral or written reasons for departure. He requests that his sentence be reversed

and that this case be remanded for resentencing within the guidelines.

Mr. McPherson and the State agree that because Mr. McPherson's

offense occurred on January 29, 1994, he was subject to resentencing under the 1994

sentencing guidelines. See § 775.082(8)(b), Fla. Stat. (2013) ("The 1994 sentencing

guidelines, that were effective January 1, 1994, and any revisions thereto, apply to all

felonies, except capital felonies, committed on or after January 1, 1994, and before

October 1, 1995."); see also § 921.001(4)(b)(2), Fla. Stat. (1997) ("The 1994 guidelines

apply to sentencing for all felonies, except capital felonies, committed on or after

January 1, 1994."). Under his 1994 sentencing guidelines scoresheet, Mr. McPherson's

presumptive sentence was 87.8 months' prison (7.32 years), with a minimum sentence

of 65.85 months (5.5 years) and a maximum sentence of 109.75 months (9.15 years).

Further, Mr. McPherson correctly points out that "[s]entences imposed by trial court

judges under the 1994 revised sentencing guidelines on or after January 1, 1994, must

be within the 1994 guidelines unless there is a departure sentence with written findings."

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§ 921.001(5); Fla. R. Crim. P. 3.702(d)(18)(A); see also Jenigen v. State, 801 So. 2d

156, 157 (Fla. 2d DCA 2001) (citing Pope v. State, 561 So. 2d 554 (Fla. 1990))

(reversing and remanding for resentencing "[b]ecause the sentences imposed in this

case amounted to departure sentences without written reasons").

However, after reviewing the record, we agree with the State that the

circuit court imposed a departure sentence based upon the written reasons for

departure that were recorded on Mr. McPherson's scoresheet. At Mr. McPherson's

original sentencing proceeding, the trial court checked two of the preprinted reasons for

an upward departure on the scoresheet as being applicable to Mr. McPherson. These

reasons were: (1) "Defendant is not amenable to rehabilitation or supervision, as

evidenced by an escalating pattern of criminal conduct as described in s. 921.001(8)"

and (2) "Primary offense is scored at level 7 or higher and the defendant has been

convicted of one or more offense [sic] that scored, or would have scored, at an offense

level 8 or higher." Florida Rule of Criminal Procedure 3.702(d)(18)(A) provides that

"[t]he sentencing judge may . . . list the written reasons for departure in the space

provided on the guidelines scoresheet and shall sign the scoresheet." Mr. McPherson's

written guidelines scoresheet, identifying the above-noted reasons for departure, was

signed by the original sentencing judge.

Moreover, our review of the record suggests that the circuit court reviewed

and relied upon these written reasons for departure when imposing Mr. McPherson's

departure sentence upon resentencing. First, at the beginning of the resentencing

hearing, the judge announced as follows:

I am the successor Judge in this case so I want to
place on the record that I have had an opportunity to review

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 the case files and I have had an opportunity to review
transcripts. I have had the opportunity to review a great
letter written to me by Mr. McPherson. Ms. James [defense
counsel], along with your resentencing memorandum and
other documents you have filed as well.

So, I have familiarized myself completely with the file
and I am ready to proceed.

(Emphasis added.) Thus we may infer that the judge read the transcript of Mr.

McPherson's original sentencing hearing and his original scoresheet.

Furthermore, both Mr. McPherson's counsel and the prosecutor

acknowledged and discussed at the resentencing hearing that the underlying offense

was part of a crime spree or series of crimes that escalated to an armed robbery with a

murder. They also discussed Mr. McPherson's conviction for felony murder in case

number 94-CF-1450. The prosecutor argued,

This was a spree that lasted approximately 20 days that did
escalate. Started with the armed robberies and ultimately
ended on February 1st with a murder being committed in the
presence of the defendant.

Based on that I think the Court should look at his prior
history and should still impose a lengthy prison sentence.

The resentencing court also observed that the subject offense was part of an escalating

crime spree.

MS. JAMES [defense counsel]: . . . I knew that the State was
going to argue crime spree. We all knew that because—

THE COURT: Because that's what the facts of the case
were. . . .

Thus, the record suggests that the resentencing judge considered the aggravating

reason for departure that "Defendant is not amenable to rehabilitation or supervision, as

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evidenced by an escalating pattern of criminal conduct as described in s. 921.001(8),"

which was listed on Mr. McPherson's scoresheet.

The resentencing court also noted the sentencing alternatives at Mr.

McPherson's original sentencing as follows:

THE COURT: And my understanding of the law at that time
was with a capital offense the guidelines don't apply, you can
exceed the guidelines?

MS. BELL [the prosecutor]: I believe that's correct. I was not
doing this at that time but from looking back I know that was
part of the discussion.

THE COURT: That's my recollection.

MS. BELL: He had a level eight offense so therefore, that is
what allowed the Judge at the time to give him life.

THE COURT: Okay.

(Emphasis added.) Thus, the circuit court recognized that the original sentence

exceeded the guideline sentence, as opposed to the statutory maximum. In addition,

the parties' discussion suggested their awareness of the original sentencing court's

application of the aggravating factor that Mr. McPherson's "Primary offense is scored at

level 7 or higher and the defendant has been convicted of one or more offense [sic] that

scored, or would have scored, at an offense level 8 or higher."

The State argued that in resentencing Mr. McPherson, the court should

consider "what was going on in 1994." And our review of the transcript of the

resentencing hearing suggests that although the court and the parties did not

specifically reference the reasons for an upward departure from the guidelines, the

parties discussed the existence of the facts supporting those reasons and the

resentencing judge was aware that he was imposing a departure sentence.

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 The resentencing judge also apparently weighed Mr. McPherson's prior

escalating criminal conduct against the facts that he was young at the time of the

offense and that he had subsequently accomplished much while in prison. The

resentencing judge stated, "I'm kind of torn here because I see two Mr. McPherson's

here. There is a 16 year-old child that, yeah, it was a crime spree and it was a bad

one." But the judge also noted:

And I am certainly very impressed with your growth. Not
only, you know, the vocational and all these impressive
certificates you have gotten, but with your growth as a man,
with your growth as a human being, with your growth as a
person. Your growth with your faith, your spirituality, all very,
very impressive.

In addition, the resentencing court reviewed and relied upon the original sentencing

scoresheet from 1994. At the beginning of the parties' arguments at the resentencing

hearing, the judge asked about the scoresheet and took a recess for the prosecutor to

locate the scoresheet upon which the original sentencing court had relied during Mr.

McPherson's sentencing.

The resentencing judge agreed with the original imposition of a life

sentence (which was an upward departure sentence) stating, "Quite frankly, had I been

the Judge back in 1994 I would have thrown the book at you too. I would have buried

you in prison for as long as I possibly could." Then in imposing Mr. McPherson's new

sentence, the resentencing judge stated as follows:

I have had an opportunity to review the sentencing
guideline [scoresheet]. I have reviewed, as I indicated
earlier, the case file, the facts of the case, transcripts from
the case to familiarize myself with the case.

Again, focusing on this case and this case only, the
only case I have before me, it was a very, very serious crime

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 that you did commit. And although the jury found you not to
be in possession of the firearm and that your codefendant
was certainly the most culpable of the group, it is still a
serious crime and one that you still must be punished for.

(Emphasis added.)

III. CONCLUSION

Our review of the record demonstrates that the resentencing judge was

aware that Mr. McPherson had previously received a departure sentence and that the

judge was imposing a departure sentence. The resentencing judge stated that he had

reviewed the file and transcripts, and thus it appears that he reviewed the prior

sentencing hearing and Mr. McPherson's scoresheet, which included written reasons for

departure. Even though the reasons for departure were not specifically articulated by

the circuit court at Mr. McPherson's resentencing hearing, the court's comments show

that it adopted the reasons that were previously included on Mr. McPherson's guidelines

scoresheet. Accordingly, although the circuit court did not expressly state that it was

imposing a departure sentence based on the written reasons for departure listed on Mr.

McPherson's scoresheet, we affirm his upward departure sentence.

Affirmed.

KHOUZAM and SALARIO, JJ., Concur.

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