Corbitt v. State

• Decision Date: 10 November 2016
• Docket Number: No. 5D16–1766.,5D16–1766.
• Parties: Avery CORBITT, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

220 So.3d 446

Avery CORBITT, Petitioner,

v.STATE of Florida, Respondent.

No. 5D16–1766.

District Court of Appeal of Florida, Fifth District.

Nov. 10, 2016.

Avery Corbitt, Lake City, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.

SAWAYA, J.

The issue presented is whether statements the trial court made during sentencing that Avery Corbitt failed to express remorse or take responsibility for his crimes are constitutionally impermissible.¹ In his Petition for Writ of Habeas Corpus, Corbitt alleges that the statements constitute fundamental error because they violate his constitutional rights to remain silent and to a jury trial. He further alleges that his appellate counsel was ineffective for failing to raise this issue in his prior appeal. Corbitt wants this court to vacate his sentence and remand this case for resentencing by a different judge. We believe that those statements are not impermissible and that Corbitt's petition should be denied for the following reasons: 1) the statements were made in the context of the trial court attempting to find some level of mitigation for the sentence; and 2) Corbitt entered a plea, waived his rights to a jury trial and to remain silent, and admitted under oath that he committed the crimes and shot one of the officers. These reasons will be addressed in the order presented, after the facts and procedural history of the case are discussed.

Corbitt was charged with several felony offenses stemming from his involvement in a drug deal with two undercover officers. Instead of completing the drug transaction, Corbitt and his accomplice attempted to rob the undercover officers. The officers resisted, and a gunfight ensued. Corbitt shot one of the officers, and the officers shot and killed the accomplice. In the midst of his trial, Corbitt decided to enter a plea to two of the charges (second-degree felony murder, which involved the death of the accomplice, and attempted first-degree murder). The plea agreement provided that the State would waive the twenty-five year minimum mandatory sentence applicable to those charges and drop the remaining charges. The agreement also provided that, in the event Corbitt filed a motion to withdraw his plea prior to sentencing, the standard applicable to post-sentence motions would apply. The sentencing range was 16.85 years to life in prison.

Corbitt was placed under oath by the trial judge, and a thorough plea colloquy was conducted. A factual basis was established for the plea, and Corbitt told the trial court that he understood the constitutional rights he was waiving, including the right to trial by jury and the right to remain silent. Corbitt admitted his involvement in the crimes and specifically told the trial court under oath that he shot one of the officers. Corbitt further states in his petition that he admitted shooting the officer. During the colloquy, Corbitt was twice advised by the trial court that the maximum sentence he could receive was life, and both times Corbitt told the court that he understood. Corbitt also stated that he understood the standard that would apply if he filed a motion to withdraw his plea. The trial court accepted the plea, finding that Corbitt "intelligently, freely, and voluntarily waived his rights in entering the plea, and that there is a factual basis for the plea." Sentencing was set for another date.

On that date, the trial court advised Corbitt's attorney and the State that he had received three handwritten letters from Corbitt. The motion to withdraw plea referred to in Corbitt's petition consists of these letters. Corbitt's attorney, who was representing Corbitt at the time the letters were sent, stated that he was not sent copies of the letters and refused to adopt them as a motion to withdraw Corbitt's plea.² The letters reveal that they are a plea by Corbitt for the minimum sentence of 16.85 years and an attempt to persuade the trial court why a life sentence should not be imposed. Corbitt makes allegations that once again admit his involvement in the crimes but makes excuses for his misconduct in an attempt to mitigate his sentence. Specifically, Corbitt contends that he thought he would get 16.85 years rather than life and did not understand that life imprisonment was an option. He also claims that he did not remember shooting the officer and that his deceased accomplice was primarily responsible for the crimes.

As a motion to withdraw plea, the letters are facially inadequate, and the motion should have been dismissed as a nullity. See Sheppard v. State, 17 So.3d 275, 287 (Fla.2009) (holding that if a pro se motion to withdraw plea does not allege an adversarial relationship with the defendant's attorney "such as counsel's misadvice, misrepresentation, or coercion," it should be stricken as a nullity). Nevertheless, the trial court considered the letters as a motion to withdraw plea, heard the motion, and summarily denied it. Even if the letters could be considered a proper motion, the trial court did not abuse its discretion in summarily denying it because the reasons Corbitt alleged are clearly rebutted by the sworn admissions he made during the plea colloquy. The courts have consistently held that when defendants seek to set aside their pleas, they are bound by those admissions. See Wagner v. State, 177 So.3d 695, 697 (Fla. 5th DCA 2015) ; Conner v. State, 97 So.3d 976, 976 (Fla. 5th DCA 2012) ; Henry v. State, 920 So.2d 1245, 1246 (Fla. 5th DCA 2006) ; Thompson v. State, 50 So.3d 1208, 1211 (Fla. 4th DCA 2010). Once the trial court made its ruling and findings on the record, it then proceeded with the sentencing hearing.

Corbitt's attorney argued in mitigation that, although Corbitt committed the crimes, he was a follower and he was led into the events of that day by his deceased accomplice. Corbitt also presented several mitigation witnesses. The State called several witnesses to testify about the impact Corbitt and his crimes had on their lives and argued that the statements in Corbitt's letters showed his refusal to take responsibility for his wrongful conduct. The statement by the trial court that Corbitt took little responsibility for what he did was made as the trial judge was attempting to find mitigating factors to consider in imposing the sentence. The transcript of the sentencing hearing reveals the following discussion (emphasis added):

THE COURT: All right, Mr. Corbitt, your attorney is right in making one assertion that I've carefully noted here, that the purpose of sentencing is not vengeance, it's to determine the appropriate amount of sentence necessary to accomplish whatever goals, sentencing goals, are defined by the sentencing authority. So if 15 years will do, you don't do 30. If 30 will do, you don't do life. And in determining what the appropriate sentence should be, I calmly look through and comb through all of the potential mitigation to determine what the appropriate sentence should be.

THE DEFENDANT: Yes, Sir.

THE COURT: And from the moment you entered your plea, I've been—I've been deliberating on that, considering that, and certainly no decision has been made until I've had an opportunity to review all of the evidence.

And the pieces of that puzzle that assist me in determining the appropriate sentence, for example, first and foremost is acceptance of responsibility. And I submit to you that notwithstanding your assertion under oath to me, previously when you entered your plea that you shot Detective Tiller, you've retreated from that. And whether or not we can—we can debate the extent to which you've retreated from that, but you've retreated from that. You've accepted little responsibility for what happened here.

So I look further and aggressively through your Presentence Investigation to try to find some level of mitigation that would justify some sort of sentence that's less than the maximum....

Corbitt did not object to these statements, which is why he asserts fundamental error. As we will explain, because there is no error, there is no fundamental error to analyze.

The courts have held that "[c]onsideration of remorse is ... appropriate if it occurs during a court's consideration of whether or not to mitigate a sentence." Rankin v. State, 174 So.3d 1092, 1097 (Fla. 4th DCA 2015) ; see also K.N.M. v. State, 793 So.2d 1195, 1198 (Fla. 5th DCA 2001) (holding that "remorse and an admission of guilt may be grounds for mitigation of a sentence or a disposition"); Godwin v. State, 160 So.3d 497, 498 (Fla. 2d DCA 2015) ("[W]e agree with the postconviction court that in context, the trial court's comments at sentencing were made in connection with its rejection of the argument for mitigation."); Shelton v. State, 59 So.3d 248, 250 (Fla. 4th DCA 2011). After the trial court found there were no mitigating factors, it then examined all of the evidence presented in arriving at its sentence. Under these circumstances, we do not believe it was error for the trial court to consider Corbitt's lack of remorse or failure to take responsibility for his crimes during sentencing.

Corbitt's petition should be denied for a second reason. As previously explained, prior to sentencing, Corbitt had freely and voluntarily entered a plea and waived his constitutional rights, including his rights to remain silent and to a jury trial. Even if the trial court had not considered Corbitt's lack of responsibility or remorse in mitigation, because Corbitt entered a plea and admitted under oath his involvement in the crimes, those considerations would not have been error.

The stated reason for the general rule prohibiting a trial court from considering a defendant's lack of responsibility or remorse during sentencing is to ensure that a defendant is not unfairly punished for his plea of not guilty and the exercise of his constitutional rights to remain silent and to proceed to a jury trial. As the Florida...