Evans v. State

• Decision Date: 13 September 2019
• Docket Number: Case No. 2D18-515
• Citation: 280 So.3d 511
• Parties: Devon F. EVANS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

280 So.3d 511

Devon F. EVANS, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D18-515

District Court of Appeal of Florida, Second District.

Opinion filed September 13, 2019

Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

LaROSE, Judge.

Devon F. Evans appeals the judgment and sentences imposed for burglary of an occupied dwelling and grand theft of a dwelling. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A) ; 9.140(b)(1)(F). We affirm the judgment without comment. We write to explain why Mr. Evans' vindictive sentence claim fails to pass muster.

Background

A jury found Mr. Evans guilty as charged. The trial court delayed sentencing pending receipt of a presentence investigation report (PSI). Thereafter, the trial court sentenced Mr. Evans as a habitual felony offender (HFO) to twenty years' imprisonment with a fifteen-year mandatory minimum prison releasee reoffender (PRR) term for the burglary charge. The trial court imposed a concurrent term of five years' imprisonment for the grand theft.

The facts underlying the crimes are not relevant to our disposition. What is pertinent is that, on the morning of trial, the trial court asked whether the parties had tried to resolve the case. The State advised that Mr. Evans qualified as a HFO and PRR and that it "intends to seek both enhancements post trial."¹ The State also reported that Mr. Evans had rejected a proposed seven-year sentence with no sentencing enhancements. The State noted that Mr. Evans' scoresheet reflected a bottom-of-the-guidelines score of about three years.

The trial court encouraged counsel to confer further with Mr. Evans about a plea. Again, Mr. Evans insisted on going to trial. The trial court then proposed an open plea with an eight-year cap. Mr. Evans rejected this proposal and proceeded to trial.

At the subsequent sentencing hearing, the trial court observed as follows:

Looking at your criminal history, in my opinion, it is significant. Since you were a juvenile, there's very little time, very few years in which you were not arrested or convicted of a charge other than when you were in prison. And this was a, in my mind, a serious offense involving a burglary of a dwelling, and I will find that based on the timing of this offense and when you were released from prison, that you qualify as a prison releasee reoffender. In addition, based on at least the two prior convictions that I have in front of me, you do also qualify as a habitual offender.

Having listened to the testimony during the trial, having reviewed the presentence investigation outlining all the factors that needed to be addressed, and listening to the argument here today, I'm going to sentence you as follows: On the burglary of the dwelling, I will sentence you as a habitual felony offender to 20 years Department of Corrections with credit for all time served. I'll also find that you qualify, as I said, as a prison releasee reoffender, and therefore you will be required to serve 15 years as a prison releasee reoffender on that count, a day-for-day sentence and with credit for time served.

Mr. Evans now asserts that "[t]he totality of the circumstances indicate [that] this was a vindictive sentence and [he] was being punished for exercising his right to go to trial." He maintains that although the trial court had to impose the mandatory minimum fifteen-year PRR sentence, "anything beyond that was clearly vindictive," especially where "[t]he trial court failed to point to any specific factors that would cause him to impose a sentence two and a half times greater than the maximum sentence he offered to impose if [Mr. Evans] had accepted the trial court's offer and waived his constitutional right to a jury trial by entering a plea."

Analysis

"The term vindictive –when used in the context of a claim of vindictive sentence–‘is a term of art which expresses the legal effect of a given course of action, viewed objectively, and does not imply any personal animosity between the court and the defendant.’ " Mendez v. State, 28 So. 3d 948, 950-51 (Fla. 2d DCA 2010) (quoting Harris v. State, 903 So. 2d 363, 366 (Fla. 2d DCA 2005) ). Whether the trial court imposed a vindictive sentence is a legal question that we review de novo. Floyd v. State, 198 So. 3d 718, 721 (Fla. 2d DCA 2016). Imposition of a vindictive sentence is fundamental error that may be raised for the first time on appeal, as is the case here. See Mendez, 28 So. 3d at 950.

We "consider the totality of the circumstances to determine whether a defendant's due process rights were violated by the trial court's imposition of a harsher sentence after unsuccessful plea discussions in which the trial court participated." Floyd, 198 So. 3d at 721 ; see also Wilson v. State, 845 So. 2d 142, 156 (Fla. 2003) ("We conclude that a totality of the circumstances review ... is the more appropriate analysis to employ to determine whether a defendant's constitutional right to due process of law was violated by the imposition of an increased sentence after unsuccessful plea discussions in which the trial judge participated."). "A presumption of vindictiveness arises where ‘there is a "reasonable likelihood" that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.’ " Cambridge v. State, 884 So. 2d 535, 537 (Fla. 2d DCA 2004) (quoting Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) ).

We observe that "[i]n Wilson, the [supreme court] declined to adopt a presumption of vindictiveness ... in all cases in which a judge participates in failed plea negotiations, and then sentences the defendant more severely than the sentence contemplated." Evans v. State, 979 So. 2d 383, 385 (Fla. 5th DCA 2008). Thus, standing alone, the trial court's efforts to facilitate plea negotiations do not compel a conclusion of vindictive sentencing. Rather, the trial court's participation in failed plea negotiations is but one factor among several that we consider. See Wilson, 845 So. 2d at 156 ("Judicial participation in plea negotiations followed by a harsher sentence is one of the circumstances that, along with other factors, should be considered in determining whether there is a ‘reasonable likelihood’ that the harsher sentence was imposed in retaliation for the defendant not pleading guilty and instead exercising his or her right to proceed to trial." (citing Smith, 490 U.S. at 799, 109 S.Ct. 2201 )). The Wilson court listed the relevant factors for our consideration:

(1) [W]hether the trial judge initiated the plea discussions with the defendant in violation of [ State v. Warner, 762 So. 2d 507 (Fla. 2000) ]; (2) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (3) the disparity between the plea offer and the ultimate sentence imposed; and (4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

Wilson, 845 So. 2d at 156 (footnote omitted). We consider each factor, below.

a. Trial court's initiation of plea discussions

The State made a plea offer before the trial court suggested an open plea. Therefore, in a strict sense, the trial court did not initiate plea negotiations.

Nevertheless, the trial court involved itself in the plea process by proposing an open plea with a cap, a scenario the supreme court has sought to guard against, regardless of whether the trial court initiated plea discussions subsequent to, and with terms different from, those initially proposed by the State. See Warner, 762 So. 2d at 513 ("The trial court must not initiate a plea dialogue; rather, at its discretion, it may (but is not required to) participate in such discussions upon request of a party."); see also Baxter v. State, 127 So. 3d 726, 733 (Fla. 1st DCA 2013) ("Our supreme court does not prohibit judicial participation in the plea bargaining process; but a judge's involvement must be limited ‘to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice.’ (quoting Warner, 762 So. 2d at 513 )). Accordingly, this first factor favors Mr. Evans.

b. Trial judge's role as impartial arbiter

The trial court did not abandon its neutrality. Its final effort to broker a deal consisted of the following statement:

As far as what I'm going to do, I have no idea because I know very little about you. I seem to recall you from years ago that we may have had a case. You may have been in front of me on something. It [m]ay have been a drug case. I don't remember. But I don't remember too much about that and I know very little about you. So if you want some kind of indication from where in that range I would sentence you, I have no idea. If I find sufficient aggravating factors that the State presents, it may be the seven years. If I find mitigating factors that you present that are significant, it may be less, but somewhere within that range. Where it might fall I can't tell you. It all depends on what I hear at the sentencing hearing. So that is the option that I am prepared to throw out if the State is agreeing to that kind of procedure.²

Seemingly, and with little information about Mr. Evans, the trial court attempted to save Mr. Evans from himself. The trial court warned him that because the State would seek PRR sentencing, the State was in the driver's seat. See State v. Baker, 874 So. 2d 643, 645 (Fla. 2d DCA 2004) (...