Ryan v. State
| Decision Date | 30 October 2020 |
| Docket Number | Case No. 2D18-1338, Case No. 2D18-2664 |
| Citation | 311 So.3d 276 |
| Parties | Michael RYAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
TRAVELING TOGETHER NOT CONSOLIDATED
In these two appeals, which are traveling together, Michael Ryan challenges his convictions and sentences for possession of a controlled substance in three trial court case numbers. Because Ryan has shown a reasonable likelihood that his sentences were vindictive, we reverse and remand for resentencing before a different judge.1
In 2D18-2664, Ryan appeals his conviction and sentence for possession of a controlled substance in trial court case number 17-04110-CF-K. After rejecting the trial court's plea offer for a bottom-of-the-guidelines sentence of 29.55 months, Ryan opted to proceed to a jury trial. He was found guilty and sentenced to thirty-six months in prison.
In 2D18-1338, Ryan appeals his convictions and sentences on two counts of possession of a controlled substance, each charged in a separate trial court case number (17-04258-CF-K and 17-04640-CF-K) but ultimately consolidated and tried together. At the beginning of trial, the court offered Ryan concurrent sentences of three years in prison on each count if he entered a plea. The court warned him that he could get up to ten years if he went to trial. Ryan proceeded to trial and was ultimately sentenced to three years on each count, to run consecutively to each other and to the three-year sentence in 17-04110-CF-K.
Ryan argues that his sentences were vindictive. "[I]mposition of a vindictive sentence is fundamental error that may be raised for the first time on appeal." Mendez v. State, 28 So. 3d 948, 950 (Fla. 2d DCA 2010). "Appellate courts should look at the totality of the circumstances when determining whether a defendant's constitutional right to due process was violated by the imposition of an increased sentence after unsuccessful plea negotiations in which the trial court participated." Id. (quoting Harris v. State, 903 So. 2d 363, 366 (Fla. 2d DCA 2005) ). Where there is a "reasonable likelihood" that the harsher sentence resulted from the sentencing judge's actual vindictiveness, a presumption that the sentence is vindictive arises. Id. (quoting Cambridge v. State, 884 So. 2d 535, 537 (Fla. 2d DCA 2004) ). "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.’ " Id. at 950-51 (quoting Harris, 903 So. 2d at 366 ).
The Florida Supreme Court has explained:
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. The other factors that should be considered include but are not limited to: (1) whether the trial judge initiated the plea discussions with the defendant in violation of [ State v. Warner, 762 So. 2d 507, 513 (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 v. State, 845 So. 2d 142, 156 (Fla. 2003) (footnotes omitted) (citation omitted).
In Warner, the Florida Supreme Court held that judicial participation in the plea bargaining process is permissible but "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.’ " State v. Warner, 762 So. 2d 507, 513 (Fla. 2000) (quoting People v. Cobbs, 443 Mich. 276, 505 N.W.2d 208, 212 (1993) ). "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." Id. "Once involved, the court may actively discuss potential sentences and comment on proposed plea agreements." Id. at 514. "The judge may state on the record the length of sentence which, on the basis of information then available to the judge, appears to be appropriate for the charged offense." Id. "A judge's preliminary evaluation of the case is not binding, since additional facts may emerge prior to sentencing which properly inform the judge's sentencing discretion." Id. "To avoid the potential for coercion, a judge must neither state nor imply alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant's right to trial." Id.
"If a plea is either not entered into or withdrawn, the judge who participated in the plea bargaining process will not automatically be subject to recusal in the case." Id. Indeed, "[a] judge's candid statement of how a case appears at an early stage of the proceedings does not prevent the judge from deciding the case in a fair and evenhanded manner later, when additional facts become known." Id. (alteration in original) (quoting Cobbs, 505 N.W.2d at 212 ).
A Nelson 2 hearing was held in all three circuit court case numbers. Though Ryan ultimately withdrew his Nelson objection, during this hearing the judge offered to give Ryan a bottom-of-the-guidelines sentence:
THE COURT: Here's the bottom line. At this point, ... I'll sentence you to the shortest lawful prison sentence I can give you, shortest lawful sentence I can give you period, whether it's prison or not.
The judge later indicated that if Ryan "play[ed] with" him, Ryan would get a harsher sentence:
During the Nelson hearing, there was also extensive discussion of Ryan's prior record, and the State agreed to remove incorrect priors on his scoresheet.
On the day of trial in case number 17-04110-CF-K, Ryan stated that he wanted to resolve all of his cases. The judge stated that if Ryan entered a plea, he would sentence him to a bottom-of-the-guidelines sentence. At this point, the lowest permissible sentence was 29.55 months because, when the State researched to correct the mistakes on Ryan's scoresheet, it found additional priors to add. After the State refused to entertain offers because it was the day of trial, the court explicitly made an offer:
Ryan opted to proceed to trial, at which an officer testified that he had personally observed Ryan smoking spice (synthetic marijuana). On the afternoon of April 5, 2017, he was working as part of the downtown deployment team near Williams Park in St. Petersburg, Florida. A woman came up to him screaming and directed his attention to active drug use in the park. He observed Ryan and another man smoking and passing a joint between them. Within seconds of smoking it, the men passed out and were completely unconscious. The officer recovered the joint from the other man's hand. The men came to a couple of minutes later. When they realized they were being investigated for spice, the other man stated, Ryan added, "You ain't fucking got the Spice, so you ain't got fucking nothing."
Ryan was found guilty and sentenced to thirty-six months in prison.
Again, on the day of trial in the remaining two case numbers, the trial court participated in plea negotiations, offering Ryan a "BOGO" deal:
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...when he sentenced the defendant, without additional justification, to harsher sentences that were to run consecutively. Ryan v. State, 311 So. 3d 276 (Fla. 2d DCA 2020) 7.2 SENTENCING GUIDELINES Topics covered: Constitutional matters pertaining to which guidelines must be applied; the effec......