Charles v. State

GROSS, J.,

dissenting.

In granting rehearing and affirming the sentences in this case, the newly constituted majority has refused to defer to the legislature in a matter of sentencing policy and has rewritten a statute to achieve a desired result. This flip-flop jurisprudence is contrary to previous pronouncements from at least one panel member. See, e.g., State v. C.M., 154 So.3d 1177, 1180 (Fla. 4th DCA 2015) (Levine, J.) (stating that courts are “not -at liberty to add words to statutes that were not placed there by the Legislature”) (quoting Bay Holdings, Inc. v. 2000 Island Boulevard Condo, Ass’n, 895 So.2d 1197, 1197 (Fla. 3d DCA 2005)). The majority has abandoned strict Scalian principles of interpretation for a mpre flexible view of statutory construction that implements the majority’s view of .sound sentencing policy.

The original panel opinion reversed Charles’s sentences because the totality of the circumstances raised the presumption, based largely on the silence of the sentencing judge, that they were based on improper sentencing considerations.6 The original opinion essentially adopted the procedure used when the totality of the circumstances gives rise to a presumption of judicial vindictiveness. See Wilson v. State, 845 So.2d 142, 156 (Fla.2003); Vardaman v. State, 63 So.3d 925, 927 (Fla. 4th DCA 2011). In this case, the totality of the circumstances gave rise to a presumption of an improper basis for the sentence which was not dispelled by the silence of the sentencing judge.

Charles was indicted along with several co-defendants on allegations that he was a member of the “Top 6” gang, á violent criminal enterprise operating in Palm Beach County. Charles initially cooperated with the authorities in hopes of securing a plea agreement. The record reveals that two plea agreements were reached; the first imposed an eight-year sentence and the second imposed a fifteen-year sentence. The state proposed these plea bargains at a time when the charges included a slew of gun charges: aggravated assault *72with a firearm, shooting into a building, felon in possession of firearm or ammunition, and shooting into an occupied vehicle.

At a change of plea hearing, the lead investigator of the Top 6 gang testified that Charles’s cooperation had been instrumental in dismantling the gang, and put him at great personal risk since his assistance had made him a target for retaliation by the objects of the prosecution. The prosecutor urged the trial court to accept a plea deal of fifteen years imprisonment, even though Charles faced multiple firearm charges. The investigator, along with the state, urged the court to accept the plea agreements so that law enforcement would continue to enjoy Charles’s cooperation.

Both agreements were rejected by Judge Karen Miller, who had presided over the trials of two of Charles’s co-defendants.7

After a two-week trial, the jury found Charles guilty of racketeering, conspiracy to commit racketeering, possession of Ec-stacy/MDMA, and possession of marijuana. He was also convicted of twelve predicate offenses, but was found not guilty of all of the predicate offenses that involved gun violence.

According to his scoresheet, Charles’s lowest permissible sentence was 79.8 months. In an about face from its previous position, the state urged the court to impose the maximum sentence based on Charles’s lengthy prior record and to “send a clear message to everyone who decides to participate in a violent criminal organization” that “a life in crime does not pay.” Following argument by both sides, without any comment or elaboration, Judge Miller sentenced Charles to nearly sixty-six years in prison.8 This was the sentence requested by the state and the maximum possible within the range set by the Criminal Punishment Code (“CPC”).

The state argues that this court must affirm the sentence because it falls within the CPC’s permissible statutory range. “Indeed, the general rule in Florida is that when a sentence is within statutory limits, it is not subject to review by an appellate court.” Howard v. State, 820 So.2d 337, 339 (Fla. 4th DCA 2002). However, when a trial court relies on impermissible factors in sentencing a defendant, the court violates the defendant’s due process rights. See, e.g., Seays v. State, 789 So.2d 1209, 1210 (Fla. 4th DCA 2001). Our standard of review is de novo. Cromartie v. State, 70 So.3d 559, 563 (Fla.2011).

When sentencing a defendant within the statutory range, the judge “may consider a variety of factors, including a defendant’s criminal history, employment status, family obligations, and over-all reputation in the community.” Imbert v. State, 154 So.3d 1174, 1175 (Fla. 4th DCA 2015). The sentencing factors properly considered by the trial court relate to the defendant, his offense, and the victim. See Apprendi v. New Jersey, 530 U.S. 466, 481, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (finding that it is permissible for judges to exercise discretion in imposing a sentence within the range prescribed by statute, “taking into consideration various factors relating both to offense and offender”).

The majority contends that general deterrence—i.e., sending a message to the community, is a proper sentencing factor. *73However, this factor is not one of the enumerated factors in section 921.002(1), Florida Statutes (2014), and' the Florida Supreme Court has adopted the strict view that the CPC expressly identifies those sentencing factors that a court may properly consider.

In Norvil v. State, 162 So.3d 8 (Fla. 4th DCA 2014) (en banc), all twelve members of this court held that, under the right circumstances, a court could take into consideration an arrest without conviction arising after the crime for which the defendant was to be sentenced. The Florida Supreme Court reversed that decision in Norvil v. State, 191 So.3d 406 (Fla.2016), holding the trial court violated a defendant’s due process rights at sentencing by considering a subsequent arrest without conviction during sentencing for the primary offense.

One of the bases for reversal in Norvil was that the legislature did not enumerate subsequent arrests in the CPC as a valid sentencing consideration. The court explained what sentencing criteria could properly be considered by trial ’ judges:

With regard to the sentencing criteria enunciated in chapter 921, along with its applicable definitions, we conclude that the CPC is unambiguous concerning the factors a trial court may consider in sentencing a defendant. The legislature included prior arrests as information that is helpful in imposing the appropriate sentence for a defendant. § 921.231(l)(c), Fla. Stat. (2010). However, if the Legislature had intended to include subsequent arrests and their related charges as permissible sentencing factors, it would have done so.

Id. at 409 (emphasis added).

, Significantly for this case, the CPC' does not list (1) sending a message to the community or (2) deterring persons other than the defendant being sentenced as permissible sentencing factors.

Under the CPC, the “primary purpose of sentencing is to punish the offender.” § 921.002(l)(b). Rehabilitation of the offender is another stated goal that is “subordinate to the goal of punishment.” Id. However, trial judges should not consider general deterrence—when imposing an individual sentence for several reasons. First, the goal of general deterrence is already addressed by the sentencing scheme put in place by the Legislature. Second, the CPC does not include general deterrence in its “unambiguous” list of factors a trial court may consider in sentencing an individual defendant. § 921.231(1), Fla. Stat. (2014). If the Legislature had intended to include general deterrence as a permissible sentencing factor, “it would have done so.” Norvil, 191 So.3d at 409. Third, it is fundamentally unfair to single out one defendant for especially harsh treatment in order to serve the utilitarian purpose of sending a message to the community. See Beno v. State, 581 N.E.2d 922, 924 (Ind.1991) (trial judge’s desire to “send a message” to other drug dealers was not a proper reason to aggravate a sentence); Commonwealth v. Howard, 42 Mass.App.Ct. 322, 677 N.E.2d 233, 237 (1997) (a sentencing judge may not punish a defendant for any conduct other than that for which he stands convicted in a particular case). Fourth, when judges rely on factors not enumerated in the CPC to impose long sentences, they undermine the express legislative directive “to maximize the finite capacities of state and local correctional facilities.” § 921.002(l)(i). Finally, and particularly relevant in this case, experts dispute whether lengthy sentences have any deterrent effect whatsoever on a defendant’s fellow gang members. E:g., United States v. Presley, 790 F.3d 699, 701 *74(7th Cir.2015).9

For all of these reasons, where a trial court imposes a sentence on an individual defendant with the intent to “send a message” to the community, the sentence rests on an impermissible sentencing consideration.

Because the record in this case reflects that the trial court may have relied on an impermissible consideration, the state bore the burden of demonstrating that the improper consideration “played no part in the sentence imposed.” Epprecht v. State, 488 So.2d 129, 131 (Fla. 3d DCA 1986). The totality of the circumstances—the defendant’s two-year cooperation with law enforcement, the original plea offers, the sentences of the co-defendants, the defendant’s acquittal of multiple firearms charges, the improper sentencing factor urged by the state, and the judge’s silence—gave rise to a presumption that the sentence rested on impermissible considerations. Here, the state did not meet its burden to overcome the presumption.

The majority points to cases where general deterrence is a proper aim of punishment. However, sentencing law has recently undergone a sea change and many sentencing shibboleths have run aground on the shoals of the Constitution. For example, a defendant’s lack of remorse for having committed a crime was long thought to be “the type of factor that judges have -historically taken into consideration in imposing sentence.” St. Val v. State, 958 So.2d 1146, 1146-47 (Fla. 4th DCA 2007). Now, a defendant cannot be punished for a lack of remorse if that factor impinges on the right against self-incrimination. See Robinson v. State, 108 So.3d 1150, 1151 (Fla. 5th DCA 2013); Green v. State, 84 So.3d 1169, 1171-72 (Fla. 3d DCA 2012). Similarly, although restitution for victims of crime is a goal of the criminal law, a court violates the due process clause if it fashions a sentence that incéntivizes x-estitution which a defendant is unable to pay. Noel v. State, 191 So.3d 370 (Fla.2016). As previously noted, Nor-vil buried yet another sentencing consideration previously thought to be acceptable. General deterrence is merely another in this line of sentencing factors waiting for elimination.

' The trial judge sat through a two-week trial and may well have sentenced Charles based on lawful considerations. However, the judge was silent as to the reasons supporting the sentence. A judicial silence often masks constitutional violations in sentencing. See Alfonso-Roche v. State, 199 So.3d 941 (Fla. 4th DCA 2016) (Gross, J., concurring). While it is not required by the criminal rules, the American Bar Association recommends that sentencing courts “always provide an explanation of the court’s reasons sufficient to inform the parties, appellate courts, and the public of the basis for the sentence.” ABA Standards For Criminal Justice: Imposition op Sentenoe § 18-5.19.10 The state did not *75overcome the presumption that the sentence was based on impermissible factors.

Because the totality of the circumstances suggests that the judge imposed the harshest sentence possible within the statutory range as a. result of her consideration of an impermissible sentencing factor, and because the state failed to demonstrate that the sentence was based on properly-considered factors, this cáse should be reversed.

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. In this dissent, I have borrowed liberally from Judge W. Matthew Stevenson's original panel opinion.

. Charles's co-defendants received sentences of twenty-five years each.

. Thirty years for racketeering, thirty years for conspiracy to commit racketeering, five years for possession of Ecstacy/MDMA, and eleven months and twenty-nine days for possession of marijuana, all counts to run consecutively.

. In Presley, Judge Richard Posner points out that criminals engaged in dangerous activities are generally undeterred by the length of a possible sentence. Id. (citing A. Mitchell Po-linsky & Steven Shavell, On the Disutility and Discounting of Imprisonment and the Theory of Deterrence, 28 J. Legal Stud. 1, 4-6 (1999), and Paul H. Robinson & John M. Darley, The Role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best, 91 Geo, L.J. 949, 95455 (2003)); see also Katelyn Carr, Comment, An Argument Against Using General Deterrence as a Factor in Criminal Sentencing, 44 Cumb. L.Rev. 249, 261 (2014) (dispelling the deterrence rationale for crimes instigated by street gangs).

. The Commentary cites Marvin E. Frankel, Criminal Sentences: Law Without Order 39 (1973) ("The question ‘Why?’ states a primitive and insistent human need. The small child, punished or deprived, demands an explanation. The existence of a. rationale may *75not make the hurt pleasant, or even just. But the absence, or refusal, of reasons is a hallmark of injustice.... The despot is not bound by rules. He need not account for what he does. Criminal sentences, as our judges commonly pronounce them, are in these vital aspects tyrannical.”).