BERNY SERRANO

v.

STATE OF FLORIDA

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D17-3669 _____________________________

BERNY SERRANO,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Levy County. Mark W. Moseley, Judge.

August 30, 2019

RAY, C.J.

Berny Serrano appeals from an order resentencing him to life in prison for his crimes committed as a juvenile. We affirm.

I.

In 2005, Serrano, a seventeen-year-old high school student, and four of his friends decided to rob nineteen-year-old Jacob Langworthy while he was at home alone. After entering Langworthy’s home, Serrano held Langworthy at gunpoint while the others ransacked the house looking for drugs and money. When a car pulled up outside, Serrano fatally shot Langworthy in the head and fled. For his part, Serrano was tried and convicted of first-degree murder, home invasion robbery, and conspiracy to commit home invasion robbery. He received a sentence of life

1 Graham v. Florida held that the Eighth Amendment prohibits a sentence of life in prison without the possibility of parole for juveniles convicted of nonhomicide crimes. 560 U.S. 48, 74 (2010). The Supreme Court explained that while “[a] State is not required to guarantee eventual freedom” to these individuals, it must provide them “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at 75. 2 Miller v. Alabama extended the reasoning of Graham and adopted a categorical-Eighth-Amendment ban on the imposition of a mandatory life sentence without the possibility of parole for juveniles convicted of homicide. 567 U.S. 460, 479 (2012). The Supreme Court did not foreclose a life-without-parole sentence in homicide cases but required the sentencer to first “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at 480.

II.

We first consider Serrano’s argument that his constitutional rights to a jury trial required the circuit court to empanel a jury for his resentencing. He contends that allowing a judge, rather than a jury, to determine whether a life sentence is appropriate under the statutory factors in section 921.1401 violates Apprendi v. New Jersey, 530 U.S. 466 (2000), and Hurst v. State, 202 So. 3d 40 (Fla. 2016). As Serrano properly concedes in his reply brief,

III.

We next address Serrano’s argument that the sentencing court violated his Eighth Amendment right against cruel and unusual punishment when it weighed the wishes of the victim’s family and friends in deciding whether to sentence Serrano to life in prison. By way of background, section 921.1401(2) of the juvenile sentencing statute directs the court to consider ten nonexhaustive factors “relevant to the offense and the defendant’s youth and attendant circumstances” when determining whether life is an appropriate sentence for a juvenile homicide offender. One of the designated factors is “[t]he effect of the crime on the victim’s family and the community.” § 921.1401(2)(b), Fla. Stat. During the evidentiary portion of the resentencing hearing, the court heard testimony and received letters from the victim’s family and friends. Serrano acknowledges that the court properly considered the evidence about the emotional impact of the murder on the victim’s loved ones. But he contends the court crossed the line by considering their pleas for Serrano to receive the harshest possible sentence. For support, he cites Booth v. Maryland, which held, in part, that the Eighth Amendment prohibits opinion testimony by a victim’s family on the appropriate sentence in a capital sentencing proceeding.³ 482 U.S. 496, 502–03 (1987). To prevail on this issue, Serrano faces three obstacles. First, because there was no objection below, the claim must be

3 Although the Supreme Court receded from portions of Booth in Payne v. Tennessee, 501 U.S. 808, 830 (1991), Booth’s prohibition on opinions from a victim’s family members about the appropriate sentence in capital cases remains intact. Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016).

A. Booth Errors are Not Fundamental

Serrano argues that the sentencing court’s consideration of the opinions from the victim’s family about the appropriate punishment is an Eighth Amendment violation under Booth that can be raised for the first time on appeal as fundamental error. Bound by Florida Supreme Court precedent, we disagree. The supreme court has held that Booth errors are not fundamental in capital cases and procedurally barred if raised for the first time on appeal. See, e.g., Henry v. State, 613 So. 2d 429, 431–32 (Fla. 1992) (holding that a claim of error under Booth was “not cognizable on appeal because [it did] not involve fundamental error and [was] not raised or objected to in the trial court”); Brown v. State, 596 So. 2d 1026, 1028 (Fla. 1992) (holding a Booth claim that the trial court “considered” the victim’s daughter’s recommendation that death was appropriate was procedurally barred because no timely objection was raised); Carter v. State, 576 So. 2d 1291, 1293 (Fla. 1989) (holding a “contemporaneous objection at trial is required before [the Florida Supreme Court] will entertain any issue based on Booth” and rejecting the claim “without reaching its merits”). We have not overlooked another line of supreme court cases that appears to cast doubt on the per se rule precluding fundamental-error-review of Booth errors. See, e.g., Jordan v. State, 176 So. 3d 920, 934 (Fla. 2015) (holding there was no fundamental error because, in part, the victim’s aunt “did not opine about . . . the appropriate sentence”). The cases that analyze the admission of victim-impact evidence for fundamental error draw from language in Payne v. Tennessee, 501 U.S. 808, 830 (1991), regarding a potential Fourteenth Amendment Due Process violation distinct from the Eighth Amendment one Serrano raises here. In Payne, the Supreme Court explained that

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“[i]n the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” 501 U.S. at 825 (1991). The analysis in Payne provides a separate constitutional ground for relief when the Eighth Amendment does not prohibit the underlying evidence. See, e.g., Wheeler v. State,⁴ So. 3d 599, 606 (Fla. 2009) (recognizing “that evidence that places undue focus on victim impact, even if not objected to, can in some cases constitute a due process violation”); Jordan, 176 So. 3d at 934 (citing Wheeler and determining the defendant’s due process rights were not violated as part of a fundamental error analysis). This variant of case law is not directly applicable when, as here, a pure Eighth Amendment claim is raised. Because we are mindful that the supreme court does not overrule itself sub silentio, and we are bound to follow its holdings over contrary dicta, we hold that Serrano’s Eighth Amendment challenge is procedurally barred.

B. Victim-Impact Evidence on Sentencing Not Considered

Even if Serrano’s Eighth Amendment claim were properly preserved, there is no indication that the court sentenced Serrano based on the victim’s family members’ desires that he receive the harshest possible sentence. While a court’s consideration of constitutionally impermissible factors generally rises to the level of fundamental error, there must be some indication that the court based its sentence on an impermissible factor before this Court will reverse. Barlow v. State, 238 So. 3d 416, 417 (Fla. 1st DCA 2018) (“Nevertheless, there is no indication that the trial court based its sentence on [a potentially impermissible factor], so the exception provides no basis to reverse.”). The mere fact that the court had evidence of a potentially improper factor before it is insufficient to merit reversal. See id. (collecting cases); see also Scull v. State, 533 So. 2d 1137, 1143 (Fla. 1988) (holding that a judge who “merely sees” a victim’s family members’ sentencing recommendation of death has committed no error absent consideration of the request when imposing sentence).

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Here, there is no indication that the court considered the victim’s family members’ opinions on sentencing in determining Serrano’s sentence. Instead, the record reflects that the court carefully balanced the rights of the victim’s family and the rights of Serrano, so as not to impermissibly encroach on either. After the close of the evidentiary portion of the resentencing hearing, the court took a moment to explain to the victim’s loved ones why—twelve years after the murder—Serrano was entitled to another resentencing. The court explained, [a]nd the problem with the original sentence in this case was that the legislative scheme for sentencing, which judges are obligated to follow, included a mandatory provision which did not allow for the Court to weigh any of the factors that have been brought before this Court today, that those were not things to be considered. The State didn’t bother to present evidence to the contrary because the Court had only one sentence it could give, and because of that, we are here today and now going through the process that I believe rightly should be part of our process. I rarely, in any situation, think that it is wise, whether it be legal or not, to have mandatory sentences. The reason for that being judges are in the best position, I believe, to bear, not only the responsibility, but also to be in a position to view all the things that should be considered in rendering a sentence of any importance whatsoever—and this is certainly important to everyone concerned—and, to the extent possible, to strive to be dispassionate, that is, to be objective. No one expects, really, either side to be objective completely. . . . . And it’s understandable the feelings of the family in regard to their loss, why your input is significant and important. But you cannot be the decision makers in the end. Obviously, you cannot have objectivity, and no one would expect you to. But the court should weigh that,

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533 So. 2d 265, 268 (Fla. 1988); see also Gulbrandson v. Ryan, 738 F. 3d 976, 996 (9th Cir. 2013) (holding a “principled distinction” may be drawn between Booth and a case in which the testimony is presented to a judge). For these reasons, we are not persuaded that a Miller-type juvenile sentencing hearing is the functional equivalent of a capital sentencing proceeding so that the categorical exclusion of victim-impact evidence on sentencing is warranted under the Eighth Amendment. We therefore decline to extend Booth’s holding to noncapital sentencing proceedings conducted by a judge and find no error in the admission or consideration of the victim-impact evidence at issue here. See e.g., Lopez v. State, 181 A. 3d 810, 828 (Md. 2018) (refusing to extend Booth to the noncapital context and noting neither the court nor the defendant found any court that had done so); Commonwealth v. McGonagle, 88 N.E. 3d 1128, 1131 (Mass. 2018) (concluding Booth does not apply to noncapital proceedings and noting that “[t]he dangerous uses to which a jury in a capital murder trial may put to a victim’s recommendation as to a particular sentence are not present at a noncapital sentencing proceeding before a neutral, impartial judge”). While a judge’s discretion in sentencing is certainly not unlimited, the record before us shows that the judge sentenced Serrano in a dispassionate manner, with the appropriate level of humanity and restraint.⁴ We affirm on this issue.

4 Our opinion today does not foreclose the possibility of a challenge, constitutional or otherwise, where there is affirmative evidence in the record that a judge based his sentence solely on victim’s family members’ recommendations, or where there is evidence the court became inflamed and diverted from the relevant evidence about the crime and defendant. Cf. Payne, 501 U.S. at 809 (noting the potential for a due process claim when unduly prejudicial evidence is introduced and renders the trial fundamentally unfair); Barnhill v. State, 140 So. 3d 1055, 1061 (Fla. 2d DCA 2014) (reversing where the trial court was neither dispassionate nor focused on the facts specific to the defendant’s

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IV.

Finally, we turn to Serrano’s remaining issue in which he argues that the sentencing court committed several additional errors that cumulatively render the sentencing decision unreliable. Serrano asserts that the court improperly considered juvenile charges that were dismissed; improperly considered the sentence previously imposed by a different judge; failed to find Serrano’s youth a significant mitigating circumstance; and made erroneous findings on Serrano’s mental health diagnosis and the role of peer pressure in the crimes. Because Serrano failed to object to any of these issues below, our review is for fundamental error. We address each argument in turn. A. Serrano’s Prior Criminal History As part of its determination about whether a life sentence is appropriate, the sentencing court must consider “[t]he nature and extent of the defendant’s prior criminal history.” § 921.1401(2)(h), Fla. Stat. In assessing Serrano’s prior criminal history, the court made the following remarks that Serrano now challenges: He doesn’t have a significant criminal history, but he has some. I read—no one mentioned—it’s part of the record that the state dropped numerous other cases given the sentence of the Court. Had the Court had a different sentence or had the State understood the importance of other convictions in our statutory now [sic] scheme, different decisions may have been made. I don’t know what to make of that other than that there were pending charges that were dropped because of the sentence in this case. Serrano alleges these comments suggest that the court improperly considered conduct for which he had not been crime, but appeared to apply a general policy against a legislatively authorized sentencing disposition).

B. Intent of the Original Sentencing Judge

When a resentencing occurs, a defendant is entitled to a “de novo sentencing hearing.” Peters v. State, 128 So. 3d 832, 840

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C. Serrano’s Youth Serrano next argues that the court erred in failing to find that Serrano’s youth alone is a mitigating circumstance entitled to great weight. When a court decides on an adult sentence for a juvenile offender, “the chronological age of a minor is itself a relevant mitigating factor of great weight.” Miller, 567 U.S. at 476 (quoting Eddings v. Oklahoma, 455 U.S. 104, 116 (1982)). To that end, section 921.1401 mandates that a sentencing court consider “factors relevant to the offense and the defendant’s youth and attendant circumstances.” Specifically, the court must consider “[t]he defendant’s age, maturity, intellectual capacity, and mental and emotional health at the time of the offense[,]” “[t]he effect, if any, of immaturity, impetuosity, or failure to appreciate risks and consequences on the defendant’s participation in the offense,” and “[t]he effect, if any, of characteristics attributable to the defendant’s youth on the defendant’s judgment.” § 921.1401(2)(c), (e) & (i), Fla. Stat. As to Serrano’s “age, maturity, intellectual capacity and mental and emotional health,” the court found: He was young. He was a juvenile when this happened, though he was only a few months from being 18. He’s a bright young man for his age, certainly did not lack maturity. And there’s no indication of any great mental or emotional disease that he suffered. He had some diagnosis, but these are not significant diagnoses that would be atypical of someone of his age and maturity. The court specifically discussed the effect of immaturity, impetuosity, and the failure to appreciate risk and consequence. It found that Serrano’s “lack of maturity is not particularly compelling.” The court noted that Serrano planned the crime and took a gun and four other people with him, demonstrating that he wanted the threat of death or bodily harm to execute his plan. The court also found that the facts of the crime did not reflect an impetuous act because Serrano ordered the victim to the ground, and proceeded to shoot the victim in the head, even as his friend urged him not do so. The court determined that Serrano knew the consequences of his actions—that when he pulled the trigger, the

D. Claims of Erroneous Findings

In his final sub-issue, Serrano challenges two findings as unsupported by the record. First, he argues there is no record support for the court’s finding that Serrano’s mental health diagnosis (i.e., generalized anxiety disorder) was “not atypical of someone of his age and maturity.” Serrano is correct that there was no evidence that his generalized anxiety disorder was typical or atypical. Even so, there is no contention that this error alone undermines the reliability of the court’s sentencing determination to warrant a new sentencing hearing. Even if the error had been preserved, the record indicates that the finding that the generalized anxiety was not atypical was harmless. Second, Serrano alleges the court erred by finding that the murder was not the product of peer pressure because the psychologist’s uncontradicted testimony suggested that for teens, the presence of peers increases aggressive, reckless behavior, which creates the same effect as peer pressure. This claim is meritless. As the court noted and the evidence showed, Serrano was the ring leader. He orchestrated the crime. And when he shot the victim, his peers were running away. One of them even tried to convince Serrano not to pull the trigger. The trial court’s finding that the murder was not the product of peer pressure is supported by competent, substantial evidence in the record.

AFFIRMED.

ROBERTS and MAKAR, JJ., concur.

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_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.