holding that the trial court improperly discounted the defendant's age when it focused on the fact that she was only 35 days shy of turning 18Summary of this case from Bracewell v. State
Case No. 2D17-3721
Marie-Louise Samuels Parmer and Maria DeLiberato of Palmer DeLiberato, P.A, Tampa; and Brian D. Netter of Mayer Brown LLP, Washington, D.C., for Appellant. Ashley Moody, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee. Roseanne Eckert of FIU College of Law, Miami; and Whitney Untiedt Akerman, LLP, Miami, for Amici Curiae National Center on Domestic and Sexual Violence, Florida National Organization for Women, and Florida Juvenile Sentencing and Review Project on behalf of Appellant J.M.H.
Marie-Louise Samuels Parmer and Maria DeLiberato of Palmer DeLiberato, P.A, Tampa; and Brian D. Netter of Mayer Brown LLP, Washington, D.C., for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.
Roseanne Eckert of FIU College of Law, Miami; and Whitney Untiedt Akerman, LLP, Miami, for Amici Curiae National Center on Domestic and Sexual Violence, Florida National Organization for Women, and Florida Juvenile Sentencing and Review Project on behalf of Appellant J.M.H.
J.M.H. appeals her new sentences of life in prison with review after twenty-five years for the offenses of first-degree murder and armed robbery. J.M.H. was seventeen years old when she committed the offenses in 2001. She originally pleaded no contest in exchange for concurrent sentences of life in prison, without the possibility of parole, in order to avoid the death penalty. In 2014, J.M.H. was granted a new sentencing hearing under Florida's juvenile sentencing statutes that were enacted in response to Supreme Court decisions addressing juvenile sentences. See §§ 921.1401, 921.1402, 775.082, Fla. Stat. (2014). In this appeal, J.M.H. argues, among other things, that the trial court abused its discretion in sentencing her to life in prison. We agree but find her other issues to be without merit.
The appellant was charged as an adult, but due to the sensitive nature of the testimony presented at her resentencing hearing, we use initials instead of her full name.
We acknowledge and appreciate the amici curiae appearance and briefing by the National Center on Domestic and Sexual Violence, the Florida National Organization for Women, and the Florida Juvenile Sentencing and Review Project.
The following facts were presented at the three-day resentencing hearing held in May 2017. J.M.H. and two others, Hershel Upshaw and Tessa Robinson, robbed and killed Paul Townsend in his Ft. Myers home in 2001. J.M.H. was seventeen. Townsend was a seventy-seven-year-old man who had sexually abused J.M.H. for a period of five years, beginning when she was eleven years old.
Tessa Robinson was a friend of J.M.H.'s, but Hershel Upshaw and J.M.H. met on the day of the offenses.
The three planned the robbery together and then drove and parked in a field about fifty yards from Townsend's home. J.M.H. went to the front door while Tessa and Hershel waited nearby out of sight. J.M.H. initially entered the house alone. After about eight minutes, Hershel and Tessa entered, grabbed Townsend, put him on the ground, and bound and blindfolded him. Hershel demanded money. Townsend told them it was in his truck, and J.M.H. retrieved his things from the truck. Tessa went to the bank to use the ATM cards, but she was unable to retrieve any money from the ATM. After they loaded Townsend's property into their car, the three decided to leave. As Hershel and Tessa were leaving the home, they heard three shots. Hershel turned and saw J.M.H. standing by Townsend with a gun in her hand.
Hershel testified that after the offenses, he heard that Townsend had molested J.M.H. when she was young. In a prior statement, Hershel stated that J.M.H. told them that she planned to rob and kill Townsend but that he and Tessa did not think she meant it. In that prior statement, Hershel stated that as they were driving away from the murder, J.M.H. stated that she had been waiting a while to kill Townsend.
J.M.H. was born in 1983; she is the fourth of five children. The two oldest children shared a father, and the three youngest shared another father, who was married to a woman other than J.M.H.'s mother. J.M.H.'s mother, Mary, smoked crack cocaine while she was pregnant with J.M.H. After the youngest child was born, J.M.H.'s father's wife learned of his affair with Mary, and J.M.H.'s father stopped providing financial support. The family moved into a motel where most of the residents were substance-addicted. After Mary began an affair with another man, child protection services intervened and transferred the children into foster care. A report from 1989 indicates the following:
Mom is on crack. Children are not cared for by Mom; they are dirty and unkempt. Mom lives with a 76-year-old man (no relation) who babysits. He has been fondling the girls underneath their clothes, in their private areas, according to [the older sister]. This has been going on since children were placed back with mom this past year. HRS had taken children away for 2 years.
The children were placed with the maternal grandmother but were later returned to Mary. In 1992, the children were again removed from the mother's care due to lack of food, lack of clothes, and filthy home conditions. The three youngest children, including J.M.H., were placed in foster care. Mary turned to prostitution and drugs. Eventually, she successfully completed a drug program and regained custody of her children. She moved to Ft. Myers and obtained a job at Wendy's, where she met Townsend. He befriended her and gave her rides to work. Mary began using drugs again and was evicted from her home. She moved in with Townsend and began a romantic relationship with him. He moved the family into a larger trailer. They had plenty of food, and he took care of all the bills.
Mary would leave her children home with Townsend. Townsend soon developed an interest in J.M.H., and he and Mary stopped sharing a bedroom. On one occasion, Mary walked in on Townsend on top of J.M.H. in a sexual position and J.M.H. was not wearing any underwear. Townsend denied that anything inappropriate happened, but J.M.H. told Mary otherwise. Mary did not report the incident because she did not want her children taken away again. On another occasion, Mary planned to be intimate with Townsend. She and J.M.H. were in the bedroom with Townsend. Mary went into the bathroom, and when she returned, "he was grinning and wiping himself off and he said, ‘Oh, you too late.’ " Mary did not do anything about the abuse; rather, she used drugs to cope with the situation.
J.M.H.'s younger sister, M.H., testified that J.M.H. would often be alone with Townsend in his bedroom watching television. M.H. was aware that Townsend was having sex with J.M.H. based on "the time they spent together behind his door in his bedroom or long trips in his truck," since he was a truck driver. He took J.M.H. to the Bahamas. M.H. was a gifted student, involved in extracurricular activities. J.M.H., on the other hand, struggled in school and was not involved in any activities. J.M.H. dropped out of school in the ninth grade, and she smoked weed and drank alcohol. Townsend provided alcohol to both girls when they lived with him. M.H. observed that Townsend favored J.M.H. by giving her hair products, makeup, and clothing, which he did not give to the other sisters. J.M.H. was protective of M.H. After the family moved out of Townsend's house, M.H. would still go over and help Townsend with projects. He would pick her up and drop her off.
One of J.M.H.'s former teachers, Peggy Leis, testified that J.M.H. was very bright but very reserved. She developed a close student-teacher relationship with J.M.H. when J.M.H. was in middle school. Leis filed a report that J.M.H. had missed three consecutive days of school, and J.M.H. explained that she had been staying with her boyfriend during those days. After J.M.H. left middle school, J.M.H. and Leis kept in contact through email or phone call. J.M.H. asked Leis for help obtaining her GED. Leis met J.M.H. at registration and paid her fee to take the test. Leis next heard from J.M.H. on the night of the murder. J.M.H. called Leis and with a shaky voice said, "I did something. I finally had to do it." J.M.H. told Leis that she had killed Townsend: "She said that she had to take care of this. She couldn't take it anymore and that she shot him." J.M.H. sounded petrified. Leis called law enforcement.
J.M.H. was thirty-three at the time of the new sentencing hearing. She testified that Townsend began touching her when they lived in the small trailer. When her mother was working, Townsend would come and get J.M.H. where she was sleeping. They would "do things," and then she would go back to sleeping with her sisters. She testified: "[A]t first we would--we would do stuff and then he would bring a gift. And afterwards, it would be him knowing I wanted something and then I would promise that I would do something with him and he would get it." One time, her mother walked in when Townsend was having sexual intercourse with her. The sexual abuse began when she was eleven. Townsend provided their food, their clothes, and the roof over their head. Townsend would keep J.M.H. home from school, and the sexual abuse would happen on a regular basis. At one point, someone reported the abuse, but J.M.H. denied it because she was worried that they would no longer have the things they needed and that they would be placed in foster care again and separated from each other and their mother.
J.M.H. testified that she ran away to Georgia when she was in sixth grade. She called home, and Townsend told her that he was going to buy her little sister, M.H., a cell phone. J.M.H. understood that to mean that "he wanted [M.H.] to do things for him for gifts like [she] was doing." So J.M.H. returned home. If J.M.H. wanted something from the store, Townsend would get it for her and then ask if she would "take care of him or make him feel good." Once her mother was incarcerated and needed $2000 to bond out, so Townsend took J.M.H. to Key West on one of his trucking trips, where he had anal sex with J.M.H. He then bonded her mother out. He also took her on a trip to the Bahamas when she was thirteen, where more sexual abuse happened. She did not hate Townsend at first; there were times when she loved him.
J.M.H.'s family eventually moved out from Townsend's house. J.M.H. began using drugs and alcohol regularly, "mainly to not think or feel." She thought about the abuse a lot, especially when she was doing drugs. Sometimes she stayed with her mom, and sometimes she stayed with her friends. She did not stay with her mother and sister because she felt different from her sisters, who were doing really well. She testified as follows: "I was into drugs and alcohol, being promiscuous, hanging out with people that they didn't necessarily hang out [with]. So I didn't really want to mess that up for them or feel uncomfortable for being different from them."
J.M.H. was at her mother's house one day when she saw Townsend drive up with M.H. in the truck. She testified:
It bothered me. It's hard to not wonder what's happening with them. I wondered if something was happening and it made me really upset and I really didn't want that to happen and then I thought about how I felt and how much it bothered me what had happened and I called Tessa.
She, Tessa, and Hershel planned to rob Townsend. J.M.H. explained how the robbery unfolded. As for the murder, J.M.H. said she shot Townsend three times and left. She did not remember exactly what she was thinking at the time, but she was really angry and she "felt for a little while [she] was in control or maybe stronger than him." The feeling did not last, and "some time after that, it just seemed to be a little bit overwhelming." She was drinking and using drugs on the day of the murder. She did not initially tell the police the truth because she was scared. She did not want to get herself or her friends in trouble. When asked how she feels about her choices back then, J.M.H. answered: "I don't really know what my choices were back then, except I was wrong. But in my mind at that time, I thought that what I did was my choice." She regrets her decision:
[M]ostly because it was wrong. Almost completely because it was wrong. Also because I didn't--I don't even now understand, but I kind of loved the person he was in the beginning. And I wonder what would have happened if maybe I would have talked to him after we moved out or what would have happened if I would have did things differently
and how would I be. It was just wrong. And a lot of people were [a]ffected by it. Tessa and her little baby. Hershel's family, [Townsend's] family, my family, me. I thought it was about me and my feelings and what happened to me. And I didn't understand that what I did would be this big at that time.
When she first got to prison, J.M.H. found it difficult to navigate "through the different types of people, different personalities, different challenges." It took her a few years to pick herself up, and a special art program helped her. "[I]t was a little bit intimidating at first and I didn't really want to apply myself because it was hard to look at myself for who I was and where I c[a]me from and what I had done." J.M.H. realized she had two choices:
I could watch TV and gossip. I could play cards. I could do drugs. I could get into more trouble. I can--you know, be what people kind of expect you to be when you're young, and things like that. And be with the majority and be a part of the crowd because it seems like everybody's laughing and having a good time.
So I could do that on my free time or work time and get in trouble, or I can join the programs that help. I can do--read self-help books and I can go to the library and I can have decent conversations with people that came in with [the art program] and the people who had been going to the program for years, who kind of spoke a different language than people who were not a part of [the program].
It took her some time to stick with her choice, but eventually she took as many art classes as she could. She became a mentor in the program, which involved her holding other inmates accountable and encouraging them "to remain committed and to push through the uncomfortable times like [she] had done" and to help them go from "their lowest point to a much better point," like she had done. She began to feel joy, and she "decided to be better than [she] had ever been." The art program allowed her to reflect and see where she went wrong and encouraged her to reach her highest potential.
Through the art program, J.M.H. was able to participate in a program which allowed her to correspond with juveniles in the system. They asked her questions, and she was able to tell them that they had choices. She did not understand when she was in the juvenile system that she had choices. J.M.H. explained the other programs in which she participated in prison. She participated in an anger management class that helped her deal with the anger she had towards herself and other people. She applies what she learned in that class. She reads a lot of self-help books and fiction, and she practices yoga and meditation. She applies the skills she learned by encouraging other inmates to make good choices and trying to be a positive influence. She also participated in a dog-training program; she trained about nine dogs. J.M.H. learned that if she were to be released, she would be admitted into a year-long program that would help supply her with things she needs to start out well: "Get a job, get a place to stay. It seems there's a lot of room to remain emotionally and mentally healthy." She made the decision to help herself before "the law changed"; it was something she began to do on her "own without any or very much encouragement."
A counselor for the Department of Juvenile Justice, Kevin Buckley, testified that he assessed J.M.H. after the murder. He believed that she had been sexually abused; she was the perfect victim, based on her environment and her mother's use of drugs and inattentiveness. She was "[p]robably the most troubled kid [he had] ever worked with." He had "[n]ever seen a kid with that level of abuse." J.M.H. reported daily drug use and tested positive for cocaine.
The defense also presented the testimony of Dr. David Fassler, a child and adolescent psychiatrist. He had previously testified as an expert in adolescent brain development. He explained "that as we become adults, our brains are functioning in a more efficient and accurate manner. ... Adolescents would not have the same ability as adults to exercise their frontal lobe functions, their executive function." Frontal lobe or executive functions include things like "paying attention, planning, making decisions, abstract thinking, inhibition, impulse control, delayed gratification, integrating different sensory input, cognitive flexibility, setting priorities, reasoning, motivation type perception, judgment and organization." Youth are "more likely to make impulsive decisions and not stop to think things fully through"; "they tend to use their emotions more than their logical thinking." The brain does not fully develop until the mid-twenties, and the research shows that "this process known as brain development and the development to executive functions can be impaired or delayed by a number of factors including exposure to drugs and alcohol, stress and trauma, [and] physical or sexual abuse." These factors can "also lead to problems with executive functions, which will include difficulty with impulse control, problems delaying gratification, a decreased attention and concentration and a diminished ability to plan things through or fully consider the consequences of one's actions." Dr. Fassler testified that according to one study, "the exposure to trauma in a family setting had a significant detrimental effect on executive functioning more so than exposure in public."
Several witnesses testified regarding J.M.H.'s progress in prison. Two volunteered with an art program within the prison system. One volunteer, Leslie Neal, testified that during her time in the program, J.M.H. went through an "incredible transformation." She was initially quiet and uninterested in relating to other people, but then she began to show "tremendous empathy, kindness." Neal "saw her undergo a huge change from the person we first met." J.M.H. completed over forty classes within the art program. The second volunteer, Margaret Canfield, testified that J.M.H. matured during her time in the program. She described in detail J.M.H.'s involvement in the theater productions. J.M.H.'s transformation was "pretty amazing" and "inspirational." J.M.H. told Canfield that "if [J.M.H.] had had a program like this, she wouldn't be in prison." J.M.H. inspired Canfield to "work primarily with juveniles." A former inmate, Tyra Amos, participated in the art program with J.M.H. and testified that she observed J.M.H. mature from a withdrawn introvert to a strong woman with a voice.
A former prison employee, Brenda Jones, had worked with the Department of Corrections (DOC) for twenty years and was now employed as a sheriff's deputy. Jones testified that J.M.H. took advantage of every program that the prison offered. She believed that J.M.H. had done everything in her power to rehabilitate herself. Jones met J.M.H. in the dog-training program in the prison. J.M.H. was not initially permitted to be in the program because she was serving a life sentence, but Jones fought for J.M.H. to be admitted into the program. Jones testified that it is not typical for corrections officers to testify on behalf of an inmate but that she could not live with herself if she did not come testify because she truly believed that J.M.H. deserved a second chance at life.
A DOC officer, Shena Brunson, has been J.M.H.'s classification officer since 2014. Brunson testified that since she has been J.M.H.'s classification officer, J.M.H. has not had any disciplinary problems and that J.M.H.'s last report was in 2011. Brunson believes that J.M.H. has rehabilitated herself and would be a productive member of society if released. Brunson was concerned about testifying on behalf of an inmate and was subpoenaed to testify. Brunson stated that J.M.H.'s admittance into the dog-training program indicated that she was in a position of trust; it allowed her to live in an open bay situation when other inmates with the same sentences are required to live in two-man cells.
During cross-examination of the corrections officers, the State asked about J.M.H.'s disciplinary reports for sex acts, being in an unauthorized area, lying to staff, fighting, possession of contraband, tattooing, disobeying an order, and disobeying regulations. Jones explained that the report for sex acts may have been for something as simple as holding hands with someone else, that being in an unauthorized area could be for standing outside of someone else's cell door, and that possession of contraband could be a paper clip or an empty water bottle. Jones said that J.M.H. would not have been allowed in the dog-training program if she had had serious reports. Jones also explained that J.M.H.'s reports did not change Jones's opinion about J.M.H. because every inmate receives them; "[i]t's very difficult to be in prison and not get written up for something."
A former warden with the Florida State Prison, Ron McAndrew, reviewed J.M.H.'s file and testified that J.M.H. encountered a minor adjustment period to prison life, which is typical. Younger inmates receive more disciplinary reports because the more experienced inmates test them physically. McAndrew reiterated the programs with which J.M.H. had been involved in prison and testified that working in the dog-training program is considered a position of trust. J.M.H. had worked as both a recreation orderly and a property orderly, which are also considered positions of trust. McAndrew testified that her lack of reports since 2011 shows her progress, noting that "it's quite remarkable she's had no discipline since then."
The State presented the testimony of J.M.H.'s codefendant, Hershel Upshaw, who explained the circumstances of the robbery and murder. The State also called Jeffrey Brown, the lead detective in the case, who testified about his investigation of the murder. J.M.H. told him that someone named "Fred" killed Townsend. The State also presented the testimony of Dr. Michael Gamache. Dr. Gamache specializes in the application of psychology to forensic and legal issues. He testified that understanding neurodevelopment is more nuanced and specific than the testimony he heard from Dr. Fassler. He had not evaluated J.M.H., but he believed her intellectual ability to be average. He acknowledged that exposure to adverse childhood "events makes somebody take more risks and [causes] mental and emotional problems" and that J.M.H.'s family was dysfunctional with inadequate parenting and supervision from her mother. Yet, he concluded that J.M.H. was no more impaired than the average 17.9-year-old in terms of immaturity and impetuosity. He could not say for certain what aspect of her youthfulness affected her judgment at the time of the murder. He did believe that she had some potential for rehabilitation.
After the hearing, the parties submitted written closing arguments. On August 3, 2017, the parties appeared for sentencing. The trial court denied the defense motion to determine as unconstitutional the minimum mandatory term of forty years required by section 775.082(1)(b)(1). The trial court resentenced J.M.H. to life in prison on both counts, with review after twenty-five years on both counts. The State had requested fifty-five years on the robbery count and argued that a life sentence is not appropriate for the robbery count, which is a nonhomicide offense. The defense joined in the State's argument, but the trial court disagreed, stating J.M.H. was "35 days short of 18, the magic age" and that she could have been sentenced to life on the robbery charge if she had been "35 days older." The trial court entered a written order setting forth its findings and the application of factors set forth in section 921.1401.
On appeal, J.M.H. argues that the minimum mandatory term is unconstitutional. We have already rejected such a claim. See Bailey v. State, 277 So. 3d 173, 177-78 (Fla. 2d DCA 2019).
"Over the past decade, the United States Supreme Court has issued a line of decisions establishing the legal principle that juveniles ‘are constitutionally different from adults for purposes of sentencing.’ " Horsley v. State, 160 So. 3d 393, 398 (Fla. 2015) (quoting Miller v. Alabama, 567 U.S. 460, 471, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ). In Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the Court "held that the Eighth Amendment bars capital punishment for children." Miller, 567 U.S. at 470, 132 S.Ct. 2455. In Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the Court held "that the Amendment also prohibits a sentence of life without the possibility of parole for a child who committed a nonhomicide offense." Miller, 567 U.S. at 470, 132 S.Ct. 2455. These two cases "establish that children are constitutionally different from adults for purposes of sentencing." Id. at 471, 132 S.Ct. 2455.
We note that at the time J.M.H. faced the charges in this case, the State sought the death penalty, as it had not yet been ruled unconstitutional for juvenile offenders. J.M.H. entered her pleas to avoid the death penalty.
Those cases relied on three significant gaps between juveniles and adults. First, children have a " ‘lack of maturity and an underdeveloped sense of responsibility,’ " leading to recklessness, impulsivity, and heedless risk-taking. Roper, 543 U.S. at 569, 125 S.Ct. 1183. Second, children "are more vulnerable ... to negative influences and outside pressures," including from their family and peers; they have limited "contro[l] over their own environment" and lack the ability to extricate themselves from horrific, crime-producing settings. Ibid. And third, a child's character is not as "well formed" as an adult's; his traits are "less fixed" and his actions less likely to be "evidence of irretrievabl[e] deprav[ity]." Id., at 570, 125 S.Ct. 1183.
Miller, 567 U.S. at 471, 132 S.Ct. 2455 (alterations in original). " Roper and Graham emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes." Id. at 472, 132 S.Ct. 2455.
A mandatory sentencing scheme "prevent[s] the sentencer from taking account of these central considerations. By removing youth from the balance—by subjecting a juvenile to the same life-without-parole sentence applicable to an adult—these laws prohibit a sentencing authority from assessing whether the law's harshest term of imprisonment proportionately punishes a juvenile offender." Id. at 474, 132 S.Ct. 2455. The Miller Court concluded "that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment." Id. at 479, 132 S.Ct. 2455 (citation omitted).
In response to Miller and Graham, the Florida Legislature "enact[ed] juvenile sentencing legislation to remedy the federal constitutional infirmities in Florida's juvenile sentencing laws." Horsley, 160 So. 3d at 401 (referring to chapter 2014-220, Laws of Fla.). In 2014, the legislature amended section 775.082 to provide as follows, relevant to this case:
Ch. 2014-220, § 1, Laws of Fla.
(1)(b)(1) A person who actually killed, intended to kill, or attempted to kill the victim and who is convicted under s. 782.04 of a capital felony, or an offense that was reclassified as a capital felony, which was committed before the person attained 18 years of age shall be punished by a term of imprisonment for life if, after a sentencing hearing conducted by the court in accordance with s. 921.1401, the court finds that life imprisonment is an appropriate sentence. If the court finds that life imprisonment is not an appropriate sentence, such person shall be punished by a term of imprisonment of at least 40 years. A person sentenced pursuant to this subparagraph is entitled to a review of his or her sentence in accordance with s. 921.1402(2)(a).
(3) A person who has been convicted of any other designated felony may be punished as follows:
(c) Notwithstanding paragraphs (a) and (b), a person convicted of an offense that is not included in s. 782.04 but that is an offense that is a life felony or is punishable by a term of imprisonment for life or by a term of years not exceeding life imprisonment, or an offense that was reclassified as a life felony or an offense punishable by a term of imprisonment for life or by a term of years not exceeding life imprisonment, which was committed before the person attained 18 years of age may be punished by a term of imprisonment for life or a term of years equal to life imprisonment if the judge conducts a sentencing hearing in accordance with s. 921.1401 and finds that life imprisonment or a term of years equal to life imprisonment is an appropriate sentence. A person who is sentenced to a term of imprisonment of more than 20 years is entitled to a review of his or her sentence in accordance with s. 921.1402(2)(d).
Section 921.1401 was added in 2014 and provides in relevant part:
Ch. 2014-220, § 2, Laws of Fla.
(2) In determining whether life imprisonment or a term of years equal to life imprisonment is an appropriate sentence, the court shall consider factors relevant to the offense and the defendant's youth and attendant circumstances, including, but not limited to:
(a) The nature and circumstances of the offense committed by the defendant.
(b) The effect of the crime on the victim's family and on the community.
(c) The defendant's age, maturity, intellectual capacity, and mental and emotional health at the time of the offense.
(d) The defendant's background, including his or her family, home, and community environment.
(e) The effect, if any, of immaturity, impetuosity, or failure to appreciate risks and consequences on the defendant's participation in the offense.
(f) The extent of the defendant's participation in the offense.
(g) The effect, if any, of familial pressure or peer pressure on the defendant's actions.
(h) The nature and extent of the defendant's prior criminal history.
(i) The effect, if any, of characteristics attributable to the defendant's youth on the defendant's judgment.
(j) The possibility of rehabilitating the defendant.
"These individualized sentencing factors largely mirror those described in Miller." Phillips v. State, 44 Fla. L. Weekly D2975, D2976, 286 So.3d 905 (Fla. 1st DCA Dec. 17, 2019). Section 921.1402(2)(a) was also added in 2014 and provides that a juvenile offender who was sentenced under section 775.082(1)(b) and was not previously convicted of an enumerated offense is "entitled to a review of his or her sentence after 25 years."
Ch. 2014-220, § 3, Laws of Fla.
J.M.H. was afforded a new sentencing hearing under section 921.1401, after which the trial court found that a life sentence was appropriate and sentenced her to life in prison on both counts. "The trial court's findings of fact on the statutory factors listed in section 921.1401 are reviewed for the existence of competent, substantial evidence in the record." Hernandez v. State, 43 Fla. L. Weekly D1079, D1080 (Fla. 3d DCA May 16, 2018). "[W]e review the court's ultimate sentencing decision based on these findings for an abuse of discretion." Jackson v. State, 276 So. 3d 73, 75 (Fla. 1st DCA 2019).
We recognize that Miller and Graham prohibit only mandatory sentences of life in prison, without the possibility of parole, for juveniles and that J.M.H.'s new sentences provide for a meaningful opportunity for release. See State v. Michel, 257 So. 3d 3, 7 (Fla. 2018) ("Michel's sentence does not violate Graham or Miller because Michel was not sentenced to life without the possibility of parole. Michel is eligible for parole after serving 25 years of his sentence, which is certainly within his lifetime."); Phillips, 44 Fla. L. Weekly at D2977 (finding no Eighth Amendment violation because juvenile offender's "life-with-review sentence provides him with a meaningful opportunity for release"). Nonetheless, we must consider whether the trial court abused its discretion in its application of the statutory factors in section 921.1401. J.M.H. argues on appeal that the trial court failed to "meaningfully ... assess J.M.H.'s background, the effects of the sexual abuse perpetrated by a man sixty years her senior, or her remarkable rehabilitation and transformation in prison." We agree.
First, the trial court placed great emphasis on the fact that J.M.H. was thirty-five days shy of turning eighteen when she committed the offenses; the trial court referred to this fact several times. The trial court even referred to this fact when rejecting the State's request for a nonlife sentence on the robbery count. While J.M.H.'s age is relevant under factor (c), it does not outweigh the fact that she was a juvenile. " Miller contains no suggestion that a seventeen-year-old is more deserving of adult punishment than a sixteen-year-old. Rather, Miller recognized that ‘youth is more than a chronological fact’ and is ‘itself a relevant mitigating factor of great weight.’ " Davis v. State, 415 P.3d 666, 689 (Wy. 2018) (quoting Miller, 567 U.S. at 476, 132 S.Ct. 2455 ). Youth "is a time of immaturity, irresponsibility, ‘impetuousness[,] and recklessness.’ " Miller, 567 U.S. at 476, 132 S.Ct. 2455 (alteration in original) (quoting Johnson v. Texas, 509 U.S. 350, 368, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) ). The trial court's repeated focus on J.M.H.'s proximity to her eighteenth birthday indicates that the trial court improperly discounted J.M.H.'s status as a juvenile.
In regard to factor (d), the trial court noted J.M.H.'s background and history of abuse. Yet, the trial court found that her family "was a loving family, with open physical affection, walks, and trips to the park or beach" and that "despite the dysfunctional family background, [J.M.H.'s] older and younger sister are law[-]abiding and productive members of society." This finding indicates that the trial court failed to duly consider the evidence regarding J.M.H.'s sexual abuse by Townsend as well as the overwhelming evidence of her unstable background. There was no evidence that J.M.H.'s sisters suffered the same sexual abuse that she suffered, and in fact, her sister M.H. testified that Townsend treated J.M.H. differently than the other children in the family. In addition, J.M.H. had been removed from her mother at least three times and placed in foster care two times by the time she was eight years old. When J.M.H. was returned to her mother the last time and the abuse by Townsend began when she was eleven years old, her mother failed to protect her or remove her from the abusive environment. A Department of Juvenile Justice counselor who assessed J.M.H. after her arrest testified that J.M.H. was "probably the most troubled kid" he had worked with and that he had not seen that level of abuse before. As the Court noted in Miller, evidence of a neglectful and violent family background and emotional disturbance is " ‘particularly relevant’—more so than it would have been in the case of an adult offender." Miller, 567 U.S. at 476, 132 S.Ct. 2455 (quoting Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) ). " ‘[J]ust as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered’ in assessing his culpability." Id. (alteration in original) (quoting Eddings, 455 U.S. at 116, 102 S.Ct. 869 ).
Under factor (c), the trial court found:
[J.M.H.] was 35 days away from turning 18 years old. The testimony of Ms. Leis indicated that [J.M.H.] was mature enough to chastise other students in class for using a racial slur. Further, [J.M.H.'s] initial statements to police that someone named Fred coerced her into committing the offenses shows [J.M.H.] was aware of the seriousness of the situation and was attempting to avoid responsibility. Witnesses testified at the resentencing hearing that [J.M.H.] was very bright and mature beyond her years.
Under factor (e), the trial court found:
There is nothing in the record to indicate that [J.M.H.] was so immature that she did not understand the consequences of her actions. [J.M.H.] has been safely away from the victim for about a year. [J.M.H.] planned the robbery and murder of the victim for several hours. The Court finds that the murder and robbery were not a result of impetuosity.
Again, in Miller, the Court recognized that "children have a lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk-taking." 567 U.S. at 471, 132 S.Ct. 2455 (quoting Roper, 543 U.S. at 569, 125 S.Ct. 1183 ). The Court stated that "immaturity, impetuosity, and failure to appreciate risks and consequences" are hallmark features of a juvenile. Id. at 477, 132 S.Ct. 2455. The trial court's statements indicate that it essentially disregarded the fact that J.M.H. was a juvenile.
Furthermore, Dr. Fassler testified that in children and adolescents, the development of executive functions can be impaired or delayed by exposure to drugs and alcohol, stress and trauma, and physical or sexual abuse. He also noted that "exposure to trauma in a family setting had a significant detrimental effect on executive functioning more so than exposure in public." There was undisputed evidence that J.M.H. had been subjected to sexual abuse by Townsend for many years. There was no evidence that she had received treatment or therapy prior to the murder for that abuse or any other neglect or abuse she suffered in her earlier childhood. She used drugs and alcohol to cope with her anger. Thus, there was evidence that J.M.H.'s sexual abuse for several years and resulting drug and alcohol abuse affected her maturity, her mental and emotional health, and her failure to appreciate the risks and consequences of her action. In addition, J.M.H. made the decision to kill Townsend after she observed him with her sister earlier that day. She testified that she was angry and only thought about herself, her feelings, and what had happened to her. She did not think about other choices she may have had or how her choice affected Townsend, his family, her family, Tessa, or Hershel. This indicates impetuosity and the failure to appreciate risks and consequences, traits that are hallmark features of juveniles.
In regard to factor (j), the trial court found that J.M.H. has the capacity for rehabilitation and noted her accomplishments in prison. However, the trial court speculated that "the prison setting is a secure, regulated environment," concluding that her "actions in prison are not an accurate reflection of how [she] would behave if released and once again subject to the pressure and responsibility of life outside prison, including the temptation to her of returning to her abuse of drugs and alcohol." There was no evidence that the prison environment was more conducive to rehabilitation. In fact, there was evidence that the prison environment makes rehabilitation difficult. A former inmate who participated in the art program with J.M.H. testified regarding the prison setting:
[I]n a place like prison there is an extreme vulnerability. You're vulnerable to other people. What you have, what you do, how you feel. And if you do not express yourself with the capability of strength to be able to not necessarily defend yourself in a physical altercation, but that as well, then people like to get over on you or take advantage of you or try to take things from you, your food, your whatever. They try to manipulate you into giving them--you know, things that are yours because you're just not anything but vulnerable.
The witness testified that the art program and others like it help the prisoners adapt and "create an ability to find balance in a very dysfunctional and imbalanced setting." The witness explained that in prison, you have to motivate yourself because there is nobody to encourage you. "[Y]ou really have to set yourself apart to actively find some ... betterment for yourself. If that's what you want to do, you have to do it yourself." In addition, a former warden testified that a "[t]est of heart is going to happen whether you like or not. There's just so many things that folks are challenged with going into incarceration." He testified that in prison, there are gangs, illegal drugs, and the potential to commit crimes. A former DOC employee testified that J.M.H.'s original life sentences prevented her from participating in most programs, yet J.M.H. persisted in being admitted into the dog-training program, where she flourished. Several witnesses attested to J.M.H.'s transformation in prison, describing it as inspirational, incredible, and amazing. Further, J.M.H.'s only opportunity to demonstrate rehabilitation was while she was in prison. It is clear that the rehabilitation contemplated by Miller occurs in the prison setting. The trial court's dismissal of J.M.H.'s progress because it occurred in prison is contrary to the intention of Miller.
In regard to factor (g), the trial court failed to consider the effect of familial pressure on J.M.H.'s actions. While J.M.H.'s family did not pressure her into committing the offense, her family's connection to the victim is relevant. During the abuse, J.M.H. stayed in the home with Townsend because she perceived that he was threatening to molest her sister M.H. J.M.H. testified that on the day of the murder, she observed Townsend drop off M.H. When she killed Townsend, she "acted purely off the emotion that [she] felt when [she] saw him with M.H., and [she didn't] think [she] thought much else after that."
As to factor (i), the trial court found that "there is nothing in the record to indicate any effect of [J.M.H.'s] youth on her judgment. [J.M.H.] was an older teen, not a young child." Again, J.M.H. was a juvenile. Juveniles are immature, reckless, impetuous, and "less likely to consider potential punishment." Miller, 567 U.S. at 472, 132 S.Ct. 2455 (citing Graham, 560 U.S. at 72, 130 S.Ct. 2011 ). The evidence is clear that J.M.H.'s behavior in general was reckless and impetuous. She was first arrested when she was twelve, and she drank and used drugs daily. The evidence showed that J.M.H. had an "underdeveloped sense of responsibility" that led to "recklessness, impulsivity, and heedless risk-taking." Miller, 567 U.S. at 471, 132 S.Ct. 2455 (quoting Roper, 543 U.S. at 569, 125 S.Ct. 1183 ). She was not an ordinary seventeen-year-old. She suffered neglect and severe abuse, and she was never given the protection or skills that would have helped her cope with such experiences.
Last, we conclude that the trial court failed to adequately consider the relationship between J.M.H. and her victim, i.e., the fact that Townsend was J.M.H.'s sexual abuser for several years. This is a not a specific factor laid out in section 921.1401, but the sentencing court is "not limited to those [factors] enumerated in section 921.1401(2)." Fla. R. Crim. P. 3.781(b). The relationship and history between J.M.H. and her victim should have carried great weight. Townsend's murder was not random, and there is nothing to suggest that J.M.H. would have committed similar offenses against any other person or that she was or is a threat to anybody but Townsend. J.M.H.'s tragic background, in which the victim played a large, detrimental part, attributed to the offenses and certainly serves to lessen her culpability. See Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (recognizing the "belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse" (quoting California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O'Connor, J., concurring))), abrogated on other grounds, Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
Based on the unique circumstances of this case and the guidance provided by Miller, we must conclude that the trial court abused its discretion in its application of the factors in section 921.1401. The trial court failed to properly consider the characteristics of J.M.H.'s youth and the effect her background had on those characteristics. The trial court also failed to duly consider the significant progress she has made in prison since the offenses. Last, the trial court failed to consider the traumatic abuse and manipulation that J.M.H. suffered at the hands of the victim when she was a child. The trial court improperly focused on the facts of J.M.H.'s offenses without duly considering the mitigating qualities of her background and youth and her undeniable rehabilitative status and opportunity. Based on the evidence presented at the hearing, the statutory factors of section 921.1401, and the guidance provided by Miller, the trial court abused its discretion in sentencing J.M.H. to life in prison on both counts. We reverse the life sentences and remand for a new sentencing hearing before a different judge.
Because there was confusion regarding which review statutes apply to the robbery offense, we note that J.M.H.'s new sentence for robbery will be controlled by section 775.082(3)(c) and that if she is sentenced to a term of imprisonment of more than twenty years on that count, she will be entitled to review after twenty years. See §§ 775.082(3)(c) ; 921.1402(2)(d).
NORTHCUTT and SLEET, JJ., Concur.