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Serrano v. State

Florida Court of Appeals, First District

August 30, 2019

Berny Serrano, Appellant,
v.
State of Florida, Appellee.

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

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

          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.

          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 without parole for the murder, a concurrent term of life with a twenty-five-year mandatory minimum for the home invasion robbery, and a consecutive term of fifteen years in prison for the conspiracy. We affirmed his convictions and sentences in 2009. Serrano v. State, 15 So.3d 629 (Fla. 1st DCA 2009).

         In the years that followed, Serrano raised a series of postconviction challenges based on new developments in the law on juvenile sentencing. In 2012, following the United States Supreme Court's decision in Graham v. Florida, 560 U.S. 48 (2010), [1] the circuit court reduced Serrano's life sentence for armed robbery to forty years in prison with a mandatory-minimum term of twenty-five years under the 10-20-Life statute. The same year, following the decision in Miller v. Alabama, 567 U.S. 460 (2012), [2] the court resentenced Serrano on the murder count to life in prison with the possibility of parole after twenty-five years.

         In 2017, the court granted Serrano a new resentencing hearing on both the murder and robbery counts under chapter 2014-220, Laws of Florida, which amended Florida's juvenile sentencing statutes in the wake of Graham and Miller. At the resentencing hearing, the defense presented four witnesses: the retired prison warden, a forensic psychologist who evaluated Serrano, Serrano's wife, and Serrano himself. The defense introduced Serrano's artwork, his marriage certificate, pictures of Serrano with his wife and stepson, letters he wrote to his stepson, and certificates of achievement in Gospel Ministry and completion of Biohazard Training.

         The State introduced documentation of Serrano's disciplinary reports in prison, records showing his time in confinement, and reports on gang-related activity. The State also presented letters from several friends and family members of the victim. The victim's mother, sister, grandmother, and a friend spoke before imposition of the sentence. The written and oral statements described the unrelenting pain the victim's loved ones have been experiencing since the victim's death and the incredible burden of having to relive the details of the victim's murder through the resentencing process. Many statements urged the court to impose the maximum sentence, not to reduce the life sentence, or to ensure that Serrano is never released.

         Following the evidentiary hearing, the court analyzed the factors specified in section 921.1401, Florida Statutes (2014), and concluded that a life sentence remained appropriate for the murder conviction. The court resentenced Serrano to life in prison, with the right to judicial review after twenty-five years under section 921.1402(2)(a), Florida Statutes. The court also imposed concurrent sentences of fifteen years for conspiracy and forty years for armed robbery, with the right to judicial review after twenty years under section 921.1402(2)(d).

         This is Serrano's appeal from the new sentencing order.

         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, this court rejected these arguments in Copeland v. State, 240 So.3d 58, 59-60 (Fla. 1st DCA 2018), for the reasons expressed in Beckman v. State, 230 So.3d 77, 94-97 (Fla. 3d DCA 2017). We therefore affirm on this issue without further discussion.

         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 non-exhaustive 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 cognizable for the first time on appeal as fundamental error. Second, there must be some indication that the court considered the victim's family members' opinions on sentencing to determine the appropriate sentence. And finally, the Eighth Amendment must indeed prohibit courts from considering this type of victim-impact evidence in a juvenile sentencing proceeding. None of these conditions has been satisfied.

         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 ...


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