White Collar and post conviction Part three
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Ground 5: Trial counsel failed to call witnesses at the sentencing hearing that would have provided the court with both statutory and non-statutory mitigating factors.
The standard to be applied by the court was recently reiterated in Waterman v. State, 12 So.3d 1265 (2009). There, the fourth District Court of Appeal stated that the determination as to whether a court considering a downward departure sentence can actually depart is a mixed question of law and fact and will be sustained on review: (1) if the court applied the right rule of law; and (2) if competent substantial evidence supports its ruling. A court may impose a departure below the lowest permissible sentence based upon circumstances or factors that reasonably justify the mitigation of the sentence in accordance with § 921.0026. The level of proof necessary to establish facts supporting the mitigation of a sentence is a preponderance of the evidence. When multiple reasons exist to support the mitigation, the mitigation shall be upheld when at least one circumstance or factor justifies the mitigation regardless of the presence of other circumstances or factors found not to justify mitigation.
At his sentencing hearing, Petitioner trial counsel did not raise any of the attached applicable mitigating factors, so the court was not aware that he could elect to depart from the sentencing guidelines in the case. Counsel clearly had informed Hall he would do so, as we can see from the following statements made at the plea hearing.
On page 4 of the Plea hearing transcript, dated April 24th, 2009 Mr. Halls attorney states that “…it’s going to be left entirely up to the discretion of the court, meaning the court can go below guidelines…if the court feels that is appropriate. But essentially to present mitigation and aggravation to the court or should the State feel fit at sentencing.”
And on page 10 of the Plea Hearing “…could we have 45 days—we’ve got—he’s got family members that are out of state, to try to get some letters and things- we’d like enough time to make sure we get all that together.” No letters were submitted, and no family members were informed or invited by counsel to come forward to present any mitigators at the sentencing hearing. The only issue raised was a non-statutory matter relating to Mr. Halls strong religious activity.
STATUTORY MITIGATING FACTORS
Under §921.0026(2)(e) and §921.185 the court may have elected to use its authority to sentence an appreciative and contrite Hall to probation, or to suspend the balance of his incarceration so that he could begin to make amends for his criminal conduct. Under §921.0026 (2)(e)
Florida Statute §921.0026(2)(e) addresses the need for the payment of restitution to the victims outweighs the need for a prison sentence.
Hall also was Ordered to pay restitution in the amount of $52,500 to Patrick and Nancy Lynette, $7,500 to John and Catherine Elliott, $101,750 to Linda Elliott, $14,000 to Jim Altadonna, Bill and Carol Marshall for $15,000 Joseph Martin for $7,500, Rajnkant Patel for $1,300, Douglas Shoemaker for $2,000, John Tillis in the amount of $10,000, Keith Wahl in the amount of $1,845, Carolyn Warren in the amount of $50,000 and Oliver and Norma Oesch for $20,000. This is a total of Two Hundred and Eighty Three Thousand Three hundred and ninety six dollars ($283,396.00). An additional amount for the State attorney and court fees was $17,482.52.
Without consultation with the absent 16 victims, whose total debt was more than more than $160,146.00, the court reduced all the amounts to judgments liens. Since the sentencing hearing the Petitioner has received numerous letters asking for restitution to be made in the case. (See attached Composite Exhibit “C”). Had the trial counsel called these witnesses at the sentencing hearing, the court may have weighed the need for mitigation agains the need for punishment and incarceration and differently. The requests of these victims at the time of the sentencing decision would have proven that the need for restitution was real, and required a different sentence be imposed.
Florida Statute §921.0026(2)(J) addresses a departure circumstance that is described as an offense that was committed in an unsophisticated manner and was an isolated incident for which the Defendant has shown remorse.
Under Waterman, to support a downward departure based on this factor, the court must find that competent substantial evidence was presented that showed (1) The crime was committed in an unsophisticated manner, (2) the crime was an isolated incident, and (3) the defendant has shown remorse. See, also; State v. Gaines 971 So.2d 219.220 (Fla 4th DCA 2008).
Florida Statutes §921.0026(2)(d). The Defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse, or for a physical disability, and the Defendant is amendable for treatment.
FACTS on health and age difficulties
Trial counsel identified this issue as one he wished the court to consider, but failed to provide any basis for meeting this condition at sentencing. This is a another challenging area for a Defendant as the defendant must show that he or she both satisfies the requirement for a mental or physical infirmity and show that DOC is not able to handle the ailment. In Holmes v. State, 909 So.2d 526, (1st DCA 2005) the court addressed several issues but lastly addressed this basis for departure. “…Finally, the finding that a downward departure was warranted pursuant to section 921.0026(2)(d), Florida Statutes, because Holmes requires specialized treatment for a physical disability and is amenable to treatment, is not supported by competent substantial evidence. Holmes testified he suffers from sickle cell anemia and finds relief through treatment (apparently with medication purchased over the counter). Holmes also stated that he had not had a "crisis" relating to sickle cell anemia in over 30 years. There is no evidence in the record that DOC could not or would not accommodate any treatment needed. Further in State v. Abrams, 706 So.2d 903 (2nd DCA 1998) the court addressed an HIV positive defendant and granted a departure sentence. The Court stated “…The sentence imposed against Mr. Abrams for possession of cocaine represents a downward departure from the sentencing guidelines. As reasons for departure, the trial court indicated that Mr. Abrams was HIV positive, and that he had other charges pending in the career criminal division. Mr. Abrams concedes that the reason involving other charges is invalid to support a departure. With regard to the other reason, we have found no authority to indicate that a defendant's HIV-positive status alone constitutes a valid reason for departure from the guidelines. A defendant's need for specialized treatment for physical disability and amenability to treatment is a valid reason for departure. See Fla. R.Crim. P. 3.990. There is no evidence in the record, however, that Mr. Abrams requires specialized treatment for HIV that cannot be provided through the Department of Corrections. See, also State v. Thompson, 754 So. 2d 126 (5th DCA 2000) At the sentencing hearing appellee provided the court with a physician's letter stating that appellee was a non-insulin diabetic and that he had sciatica. He also indicated that he had heart problems and that he took oral medications to correct these various health problems. Section 921.0026(2)(d), Florida Statutes (1999), permits downward departures where a defendant requires specialized treatment for a physical disability and the defendant is amenable to such treatment.
No evidence was presented to the trial court that specialized treatment was required, or that any required treatment could not be provided by the Department of Corrections. Had Mr. Wells reviewed the information provided to him by Mr. Hall regarding his health this matter would have been considered by the court. Mr. Hall has been hospitalized and required surgical intervention since his incarceration. FACTS
NON-STATUTORY MITIGATING FACTORS
Mr. Hall is now 70 years of age. The sentence that he was ordered to complete is in effect a Life Sentence on a case that guidelines acknowledge may have been properly resolved with eight years, followed by probation. While the total duration of the sentence is within the lawful authority of the court, when one considers the average life expectancy of the American male, considers Hall’s age, and his health, the sentence handed down to Mr. Hall totally precludes any possibility of paying back restitution to victims that desire to be reimbursed.
Hall contends that this court should re-consider his age, and the need for the majority of the alleged victims to receive some restitution when it reviews this Motion.
Hall has ministered to his fellow inmates. This matter was addressed in his sentencing hearing but not in a complete fashion (See Attached Exhibit “D,”). The Petitioner would also have asked the court to review the attached exhibits regarding his ongoing Christian progress and his role in the prison ministry. Attached is a Composite Exhibit, number 1-9 with attachments. (See Attached Exhibit “E”) that includes a rare Letter of Support from William Hedrick, Chaplain Supervisor for the Florida Department of Corrections, a letter from Mr. Hall to the court, (See Attached Exhibit “E”)and letters from various Pastor’s, and fellow inmates. The Exhibit also contains certificates of completion, and documents supporting his progress in obtaining his degree in Pastoral Theology. In conclusion note the personal letter drafted by Petitioner.
CONCLUSION
"[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington,466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984); see also Marshall v. State,854 So.2d 1235, 1247 (Fla.2003).
Counsel's performance is deficient if it falls below "`an objective standard of reasonableness' based on `prevailing professional norms.'" Id. In order to establish prejudice, a defendant must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the proceedings. Id. A defendant is "not entitled to perfect or error-free counsel, only to reasonably effective counsel." Waterhouse v. State,522 So.2d 341, 343 (Fla.1988).
