THOMAS ANTHONY ROMERO

v.

STATE OF FLORIDA

PER CURIAM.

Thomas Anthony Romero challenges an order resentencing him to life in prison for the first-degree murder and armed robbery he committed as a juvenile. Of the issues he raises on appeal, we agree that it was error for the court, as opposed to the jury, to make a factual finding that Romero intended to kill or attempted to kill the victim, thus triggering the statutory 40-year mandatory minimum and 25-year period for sentence review. And because we conclude that the violation here cannot be deemed harmless, we reverse and remand for resentencing on the first-degree murder count. We affirm on Romero’s other issues without further discussion.

I.

In 1995, the victim in this case was beaten and stabbed to death outside the home of Eliadora Castanon, Romero’s cousin. The victim died from a combination of stab wounds and blunt force trauma from a knife and hatchet. The victim was struck by the hatchet more than thirty times on his head and neck. His carotid artery and jugular vein were punctured by the knife, and his left thumb was partially severed. He also had defensive wounds on his right hand and wrist. Blood splatter from the victim was on the clothes Romero was wearing when he was arrested. Blood splatter was also on a shirt belonging to Castanon that was found in the victim’s car they were riding in when stopped by the police.

Along with Romero and Castanon, two other individuals participated in this crime: Raymond Romero, Romero’s brother; and Jason Hoard, a friend of Castanon. For his part, Romero’s brother was convicted of first-degree murder, robbery with a deadly weapon, and conspiracy to commit robbery. Hoard was convicted of first-degree murder. Romero was charged with first-degree murder, robbery with a deadly weapon, and conspiracy to commit robbery with a deadly weapon.

A. Trial

At Romero’s trial, the jury heard two different versions of what happened and who murdered the victim. Witnesses said Romero committed the crimes, but Romero denied being involved.

Castanon testified for the State after entering a plea of no contest to second-degree murder for his involvement in this crime. He was awaiting sentencing and faced a guidelines sentence of thirteen to twenty-three years in prison, but he was also subject to a life sentence if the court imposed an upward departure. Castanon testified that on the night of the murder, he along with Romero, Romero’s brother, Hoard, the victim, and a friend of the victim were at Castanon’s house. Hoard and the victim drove the victim’s friend home and returned to Castanon’s house. The victim did not go inside and fell asleep in his car. Inside the house, the Romero brothers, Hoard, and Castanon then discussed robbing the victim. Romero had told Castanon that he wanted to go back to his home in Michigan, but his parents would not pay for a bus ticket. Romero’s brother said that he and his brother could “jack” the victim and steal his car. Castanon suggested the brothers could tie up the victim after they knocked him unconscious with a brick, and he also gave Romero’s brother the knife used to stab the victim. Romero’s brother told Castanon he needed it to threaten the victim or cut extension cords so they could tie him up. Castanon also told the Romero brothers that there was a brick, a pole, and a hatchet in his backyard they could use to beat the victim. Hoard suggested they could tie up the victim and put him in the trunk of his car. As the Romero brothers were leaving, Castanon testified that he told them he did not want to participate in the robbery. Castanon and Hoard then went to sleep.

Castanon testified that he was awakened later that night by sounds of someone being hit just outside his bedroom window. He saw two people near the victim’s car but went back to bed. A few seconds later, the Romero brothers came into his room looking panicked and scared. Romero’s brother told Castanon to “grab our bags,” and all four of them (Castanon, Hoard, and the Romero brothers) left in the victim’s car. The front passenger seat was covered in blood. They exited the highway for a moment, and the Romero brothers took clothes out of the trunk and threw them along the roadside. Castanon said he also helped them wipe down parts of the victim’s car. They continued driving to Michigan, and Hoard paid for gas each time they stopped. During the trip, Castanon said that he and Hoard asked the Romero brothers what they had done to the victim. Romero’s brother told them they stabbed him with a knife and when he fought back, Romero’s brother used the hatchet to knock him unconscious. According to Castanon, Romero’s brother said, “We took turns hitting him.” And Romero said, “I think I cut off one of his fingers.” Castanon admitted that the shirt found in the victim’s car with blood splatter from the victim on it belonged to him, but he denied wearing it on the night of the murder. Castanon admitted that he was closer to Hoard than to the Romero brothers, and that he and Hoard had contemplated running away and leaving them when they stopped for gas in Tennessee.

Castanon’s sister, Delores Castanon, testified that before the murder, Romero’s brother told her he planned to rob the victim and that “he was gonna do the killing, and [Romero] was going to do the beating.” Frank Knoth, the victim’s friend, testified that Romero asked him if he wanted to “jump” the victim, and Romero’s brother told him that he liked the victim’s car and “he wouldn’t mind having it.” Hoard’s statements to the police were read to the jury by the detective who interviewed him because Hoard refused to testify during Romero’s trial. He said he was sleeping in Castanon’s room when he heard the attack outside. He did not see who hit the victim, but he said the Romero brothers were outside at the time. Hoard told officers he left with everyone else in the victim’s car after the attack because he was scared. He denied stopping during the drive to get rid of evidence and said the Romero brothers never talked about what happened. The victim’s girlfriend testified that Hoard did not like the victim and had called him a “narc” and a “mama’s boy” on numerous occasions. She also said that Hoard wanted to date her and she admitted there was some rivalry between the victim and Hoard for her affection.

In contrast, Romero testified on his own behalf and denied conspiring to rob the victim or taking part in either the robbery or the murder. He said that on the night of the murder, he and his brother left Castanon’s house when the others drove the victim’s friend home. He and his brother went to a grocery store to call their mother, but they could not reach her and then walked back to the house. There they saw Castanon and Hoard attacking the victim and dragging him from his car. He said Castanon was wearing the shirt that was found inside the car with blood splatter from the victim on it, but he later changed out of it as they were driving away. Romero testified he was in shock as he witnessed the attack and could not help the victim. Castanon and Hoard then told the Romero brothers to get in the car and they drove away after Hoard brought out some bags from the house. When he was arrested, Romero invoked his right to counsel and refused to talk to the police.

Relevant to this appeal, the jury was instructed on both first-degree premeditated murder and first-degree felony murder with robbery as the predicate felony. But the verdict form did not separate out the theories of first-degree murder and allow the jury to differentiate whether Romero was guilty of premeditated murder, felony murder, or both. He was convicted of first-degree murder, robbery with a deadly weapon, and conspiracy to commit robbery with a deadly weapon. The trial court sentenced him to concurrent terms of life in prison for the murder and robbery, and fifteen years in prison for the conspiracy. We affirmed his convictions and sentences in 1998. Romero v. State, 709 So. 2d 541 (Fla. 1st DCA 1998).

B. Resentencing

In 2013, following the United States Supreme Court’s decision in Graham v. Florida, 560 U.S. 48 (2010), Romero filed a motion to correct illegal sentence and the circuit court resentenced him on the robbery count to an upward departure sentence of sixty years in prison. Later, he voluntarily dismissed an appeal of that resentencing order. In 2015, Romero filed another motion to correct illegal sentence, arguing an entitlement to be resentenced for the murder and robbery counts under chapter 2014-220, Laws of Florida, which amended Florida’s juvenile sentencing statutes in response to Graham and Miller v. Alabama, 567 U.S. 460 (2012). In 2018, the court granted Romero a resentencing hearing on both counts under the newly enacted juvenile sentencing scheme.

Before taking evidence on the first day of the hearing, the parties disputed whether a jury was required to find that Romero killed or intended to kill the victim. Romero argued that because the jury did not specifically make either of those required findings, he could not be sentenced under section 775.082(1)(b)1., Florida Statutes (2018) (requiring a sentence of life or at least forty years imprisonment for a juvenile who commits a capital felony and actually killed, intended to kill, or attempted to kill the victim, with a review hearing after twenty-five years).

The court agreed that because the verdict form did not provide interrogatories or specify whether the jury had found Romero guilty of premeditated or felony murder, the jury did not decide that he actually killed, intended to kill, or attempted to kill the victim.

Therefore, the court would be limited to resentencing him under section

775.082(1)(b)2., Florida Statutes, which does not require a minimum mandatory sentence and provides for a review hearing after fifteen years.

In addition to other evidence presented at the hearing, both parties agreed that the trial judge could consider three binders of documents related to Romero’s trial and previous resentencing, including law enforcement investigation and charging documents, trial testimony, notices, motions, orders, and caselaw. The court then heard from two expert witnesses and a mitigation specialist.

When the sentencing hearing continued on its second day, the circuit court found that despite the flawed verdict form, the evidence presented to the jury sufficiently demonstrated beyond a reasonable doubt that Romero intended or attempted to kill the victim:

The Court cannot conclude from the record that the jury found beyond a reasonable doubt that Thomas Romero actually killed Mr. Peaden, but the Court does find from the record evidence that was presented to the jury that Mr. Thomas Romero’s actions demonstrate beyond a reasonable doubt that he intended to kill Mr. Peaden, or he attempted to kill Mr. Peaden. Therefore, the Court finds it is appropriate to sentence under 775.082(1)(b)1.

In both its oral pronouncement at the hearing and in its written order, the court explained its decision by recounting the savage nature of the attack on the victim:

The evidence shows [Romero] beat the victim with a hatchet so hard that the tool mark analysis matched the flat end of the hatchet to the holes made in the victim’s skull. The victim suffered numerous cuts from the sharp end of the hatchet as well as blunt force injuries from the flat end of the hatchet. [Romero] saw his brother stab the victim in the neck with a knife. When the victim began defending himself, [Romero] mercilessly beat him and chopped him with a hatchet. [Romero] bragged about almost cutting off the victim’s thumb as the victim was trying to defend himself. The victim was pulled out of his car and thrown to the ground where [Romero] and his brother continued to beat him. The force of the blows was so hard and vicious that the two co-defendants heard them from inside the house—several yards away. The extensive and severe injuries inflicted by [Romero] show an unequivocal intent to kill, and an active and ongoing attempt to kill the victim.

The court then concluded that a life sentence was appropriate for both counts after considering the factors listed in section 921.1401(2)(a)–(j), Florida Statutes (2018). But now Romero would receive a sentence review in twenty-five years for the murder count as required by sections 775.082(1)(b)1. and 921.1402(2)(a), Florida Statutes.

This is Romero’s appeal of the new sentencing order.

II.

For the reasons that follow, we agree with Romero that the circuit court erred when it, as opposed to a jury, determined for sentencing purposes that Romero intended to kill or attempted to kill the victim. And because the error was not harmless based on our review of the record, we reverse on this issue and remand for resentencing.

A. Alleyne Error

The Florida Supreme Court has held that pursuant to Alleyne v. United States, 570 U.S. 99 (2013), a jury must make the factual finding under section 775.082(1)(b), Florida Statutes, as to whether a juvenile offender actually killed, intended to kill, or attempted to kill the victim. Williams v. State, 242 So. 3d 280, 293– 94 (Fla. 2018).

At Romero’s trial, the verdict form did not separate out the theories of first-degree murder and allow the jury to differentiate whether Romero was guilty of premeditated murder, felony murder, or both. The general verdict form does not show that the jury found beyond a reasonable doubt that Romero intended or attempted to kill the victim in this case.

As part of the instruction on first-degree murder, the jury was instructed on felony murder. That standard instruction allowed them to convict Romero of murder whether he or someone else killed the victim:

Before you can find the defendant guilty of first-degree felony murder, the State must prove . . . that Thomas Anthony Romero was the person who actually killed [the victim] or [the victim] was killed by a person other than Thomas Anthony Romero, but both Thomas Anthony Romero and the person who killed [the victim] were principals in the commission of the robbery.

In order to convict of first-degree felony murder, it is not necessary for the State to prove that the defendant had a premeditated design or intent to kill.

(Emphasis added.)

Next, the jury’s instructions on principals also allowed them to convict Romero of murder even if he was not at the scene or if someone else killed the victim:

If the defendant helped another person or persons commit a crime, the defendant is a principal and must be treated as if he had done all the things the other person or persons did if, one, the defendant had a conscious intent that the criminal act be done. And two, the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person or persons to actually commit a crime.

To be a principal, the defendant does not have to be present when the crime is committed.

(Emphasis added.) In its closing arguments, the State emphasized that all it needed to prove for felony murder was that Romero “was a principal, not that he actually swung the hatchet.” It also reminded the jury that the State did not need to prove Romero’s intent to kill, only that the killing occurred during a robbery.

The jury instruction on robbery described the elements of taking property from the victim by force or violence:

Before you can find the defendant guilty of robbery, the State must prove the following four elements beyond a reasonable doubt. . . . Two, that force, violence, assault, or putting in fear was used in the course of the taking.

. . . .

The taking must be by the use of force or violence or by assault, so as to overcome the resistance of the victim or by putting the victim in fear, so that the victim does not resist.

Although the jury found that Romero used sufficient violence or fear to overcome the victim’s resistance, that does not show they also found he had an intent to kill or attempted to kill the victim.

For these reasons, there is no clear finding that Romero actually killed, intended to kill, or attempted to kill the victim. Therefore, an Alleyne violation occurred when the trial court, rather than a jury, made those factual findings. Williams, 242 So. 3d at 289.

B. Harmless Error

Alleyne violations are subject to harmless error analysis on appeal. Williams, 242 So. 3d at 289–90. But because the record in this case does not demonstrate beyond a reasonable doubt that a rational jury would have found that Romero actually killed, intended to kill, or attempted to kill the victim, the Alleyne violation was not harmless.

The jury heard two very different versions of what happened on the night of the murder and who killed the victim. Much of the evidence of Romero’s incriminating actions and statements came from Castanon, a codefendant who pleaded no contest to second-degree murder and testified against Romero while awaiting sentencing; Hoard’s statements to the police during his interrogation; and the testimony of Castanon’s sister. But at trial,

Romero denied any involvement in either the murder or the robbery, and he did not make any statements to the police after his arrest.

Both Castanon and Hoard testified that Romero attacked the victim, but both of them had an incentive to blame him and downplay their own culpability. Other evidence suggested that they were close friends who discussed running away and leaving the Romero brothers after the murder. Hoard showed a bias against the victim and wanted to date the victim’s girlfriend. And Castanon’s sister also had an incentive to lie on her brother’s behalf. Evidence of the blood splatter on Castanon’s shirt shows that he, like Romero, was physically close to the victim at the time of the attack rather than asleep inside the house. Although Castanon denied wearing the shirt, Romero testified that he was wearing it on the night of the murder. While the evidence of the victim’s blood splatter on Romero’s clothing places him in close proximity to the killing, it is not inconsistent with his participation in a robbery that one or more of his codefendants elevated into a homicide without his participation or agreement. There was also no evidence that Romero admitted he planned to kill the victim. Instead, most of the testimony showed the plan was to rob the victim and steal his car. The only testimony indicating a plan to kill the victim came from Castanon’s sister, who testified that Romero’s brother said that he was going to kill the victim and Romero was going to beat him. While it is clear that whoever inflicted the multiple blows to the victim intended to kill him, it is not clear who inflicted them.

Lastly, the jury’s finding that Romero robbed the victim with a deadly weapon does not show that it found he actually killed, intended to kill, or attempted to kill the victim. The jury’s verdict does not show what weapon the jury believed Romero used or whether he was the one who inflicted the fatal blows. And Romero could have been convicted of robbery with a deadly weapon as a principal even if the jury did not believe he had actual possession of the weapon. See Stripling v. State, 645 So. 2d 589, 590 (Fla. 3d DCA 1994) (holding that a defendant can be convicted as a principal to armed robbery even if they do not actually possess the firearm during the robbery); see also Freeny v. State, 621 So. 2d

505, 506 (Fla. 5th DCA 1993) (reaffirming that a codefendant’s possession of a firearm is sufficient to convict a defendant of armed robbery).

Based on this conflicting evidence, we cannot determine beyond a reasonable doubt that a rational jury would have concluded Romero actually killed, intended to kill, or attempted to kill the victim. The possibility remains that the jury relied on the felony-murder theory to convict him of first-degree murder. See Williams, 242 So. 3d at 291–92 (holding that the record failed to demonstrate beyond a reasonable doubt that the jury would have found the defendant killed, intended to kill, or attempted to kill the victim when almost all of the incriminating evidence came from witnesses who had incentives to implicate the defendant; other evidence did not make sense; and an intent to commit the underlying felony for felony murder does not show an intent to kill); see also Green v. State, 46 Fla.

L. Weekly D17 (Fla. 3d DCA Dec. 23, 2020) (“The evidence presented at trial involved two competing narratives, the resolution of which required a credibility determination best suited for the jury and not judicial factfinding.”).

* * *

We therefore reverse on this issue and remand for Romero to be resentenced on the count of first-degree murder pursuant to section 775.082(1)(b)2., Florida Statutes. See Williams, 242 So. 3d at (holding that resentencing pursuant to section 775.082(1)(b)2. is the appropriate remedy when a harmful Alleyne error has occurred).

AFFIRMED in part, and REVERSED and REMANDED in part.

RAY, C.J., and KELSEY, J., concur; B.L. THOMAS, J., dissents with opinion.