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State v. Johnson

Florida Court of Appeals, Second District

August 16, 2017

STATE OF FLORIDA, Appellant,
v.
HENRY JOHNSON, JR., Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Manatee County; Deno Economou, Judge.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellant.

          Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellee.

          CRENSHAW, Judge.

         After a jury found Henry Johnson, Jr., guilty of four counts of sale of cocaine and two counts of sale of cannabis in violation of sections 893.13(1)(a)(1), and (1)(a)(2), Florida Statutes (2014), the trial court imposed concurrent downward departure sentences of ten months' jail on each count. Citing State v. Steadman, 827 So.2d 1022 (Fla. 3d DCA 2002), the court based the departure on its finding that law enforcement officers engaged in sentence manipulation by making multiple purchases over the course of their sting operation for no reason other than to increase Johnson's potential sentence. The State now appeals the sentences arguing that the basis for the departure is not supported by competent substantial evidence and, even assuming there was sufficient evidence that law enforcement engaged in sentence manipulation, Johnson's sentences are still improper under Steadman because they are below what his guideline sentence would have been if he had been arrested after the first sale. Because the trial court erred in departing below the confines of Steadman, we reverse.

         The charges in this case arose after a confidential informant provided law enforcement officers with Johnson's phone number and indicated that Johnson was selling crack cocaine. Using this information, the lead officer made contact with Johnson and purchased $60 worth of cocaine on January 23, 2015, in the parking lot of a large hardware store. On January 27, the officer again contacted Johnson and purchased $60 worth of cocaine and $40 worth of cannabis at the same location. The following day, the officer purchased another $60 worth of cocaine and $20 worth of cannabis from Johnson at the same location. Finally, on February 3, in the same hardware store parking lot, the officer purchased $60 worth of cocaine. The officer obtained audio and video recordings of each of the transactions. Other officers also observed all of these transactions. For all but the last of these transactions, Johnson did not initially possess the drugs and, instead, obtained the drugs from other individuals who would drive to the parking lot and hand the drugs to Johnson during the transactions. Officers eventually arrested Johnson for these transactions pursuant to an arrest warrant. Following a jury trial, Johnson was convicted as charged.

         At the outset, we note that the State's argument that the departure was not based on competent substantial evidence is not preserved. See State v. Wiley, 210 So.3d 658, 659 (Fla. 2017) (discussing the components of proper preservation). During sentencing, the State specifically relied on Steadman to argue that the trial court could not depart below Johnson's lowest permissible sentence when calculated with a scoresheet that only included the first charge. See Steadman, 827 So.2d at 1024 ("An important consideration in our decision is the fact that the judge imposed a sentence harsher than the guideline sentence had Steadman been arrested after the first sale."). In support of its argument, the State presented two scoresheets. Under his actual scoresheet, which included all of the instant convictions, Johnson's lowest permissible sentence was 46.95 months' prison. The other scoresheet included only the first charge for which Johnson was convicted and indicated a lowest permissible sentence of 31.2 months' prison. The State asserted that "if the basis for departure here to go below the 31.2 months is Steadman, the State raises the objection that Steadman doesn't hold for that." Thus, the State did not preserve the argument that the departure was not based on competent substantial evidence.

         Even assuming the State's argument was preserved, we conclude that the departure basis was supported by competent substantial evidence. "Appellate courts apply a mixed standard of review when analyzing a downward departure sentence. First, the appellate court must determine whether the trial court applied the correct rule of law, and whether competent, substantial evidence supports the trial court's reason for imposing a downward departure sentence." State v. Simmons, 80 So.3d 1089, 1092 (Fla. 4th DCA 2012). The court "must then decide whether the trial court [abused its discretion] in determining that the downward departure sentence was the best sentencing option for the defendant by weighing the totality of the circumstances in the case." Id. "[T]he trial court can impose a downward departure sentence for reasons not delineated in section 921.0026(2)[, Florida Statutes (2008)], so long as the reason given is supported by competent, substantial evidence and is not otherwise prohibited." Id. (citing State v. Stephenson, 973 So.2d 1259, 1263 (Fla. 5th DCA 2008)).

         In Florida, the concept of sentence manipulation as a non-statutory basis upon which to depart downward was first addressed in Steadman, 827 So.2d at 1024. See also Dodier v. State, 125 So.3d 355, 356 (Fla. 5th DCA 2013) (suggesting that counsel's failure to argue that Steadman applies at sentencing might also provide a basis for postconviction relief). Explaining that the legislature's purpose in enacting sentencing guidelines "is undermined when law enforcement is allowed discretion to determine what a criminal's sentence will be, " the court held that "a trial court has discretion to impose a downward departure sentence[] when law enforcement allows a defendant to continue criminal activities for no reason other than to enhance his or her sentence." Steadman, 827 So.2d at 1025. After surveying the various standards utilized by federal and other state courts in applying the doctrine of sentence manipulation, the Steadman court concluded that because a showing of "outrageous conduct" on the part of law enforcement officers would constitute entrapment-a complete defense to the charge-a lower standard should be employed as "[t]he trial court can mitigate a sentence based on conduct that is not sufficient to excuse the crime." Id. (quoting Hines v. State, 817 So.2d 964, 965 (Fla. 2d DCA 2002)). The court articulated its standard as follows:

When considering sentence manipulation as a basis for downward departure, the trial court's inquiry should focus on law enforcement intent: was the sting operation continued only to enhance the defendant's sentence or did legitimate law enforcement reasons exist to support the police conduct, such as to determine the extent of the criminal enterprise, to establish the defendant's guilt beyond a reasonable doubt, or to uncover any co-conspirators? If legitimate law enforcement concerns exist, then a downward departure based on sentence manipulation is not warranted.

Id.

         The State does not argue that the Steadman standard is erroneous or that sentence manipulation is not a valid reason upon which to depart downward. Instead, the State argues that the departure was not based on competent substantial evidence here because law enforcement had legitimate reasons for continuing to make purchases from Johnson. The State also argues the evidence was insufficient because the supervising officer in Steadman testified that the sole purpose of making multiple purchases in that case was to increase Steadman's sentence, 827 So.2d at 1024, whereas here, there was no similar testimony. We cannot agree.

         First, contrary to the State's suggestion, the Steadman court did not limit its holding to scenarios where law enforcement officers candidly confess their intent to engage in sentence manipulation. To be sure, imposing such a standard would nearly eviscerate the doctrine and incentivize officers to ...


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