Opposition Brief — Edward Allen Covington, Petitioner v. Florida

CASE NO. 17-7400

IN THE SUPREME COURT OF THE UNITED STATES

EDWARD ALLEN COVINGTON,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

RESPONDENT’S BRIEF IN OPPOSITION

PAMELA JO BONDI

Attorney General

Tallahassee, Florida

CANDANCE M. SABELLA*

Chief-Assistant Attorney General

Florida Bar No. 0445071

*Counsel of Record

C. SUZANNE BECHARD

Assistant Attorney General

Florida Bar No. 0147745

Office of the Attorney General

3507 E. Frontage Road, Suite 200

Tampa, Florida 33607-7013

Telephone: (813) 287-7910

Facsimile: (813) 281-5501

capapp@myfloridalegal.com

candance.sabella@myfloridalegal.com

carlasuzanne.bechard@myfloridalegal.com

COUNSEL FOR RESPONDENT

QUESTION PRESENTED FOR REVIEW

[Capital Case]

WHETHER PETITIONER COULD WAIVE HIS SIXTH AMENDMENT

RIGHT TO HAVE A JURY DETERMINE THE EXISTENCE OF AN

AGGRAVATING CIRCUMSTANCE THAT QUALIFIED HIM FOR A DEATH

SENTENCE?

i

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW.................................. i

TABLE OF CONTENTS............................................. ii

TABLE OF CITATIONS........................................... iii

CITATION TO OPINION BELOW...................................... 1

JURISDICTION................................................... 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED............... 1

STATEMENT OF CASE.............................................. 1

REASONS FOR DENYING THE WRIT................................... 5

CERTIORARI REVIEW SHOULD BE DENIED BECAUSE (1)

PETITIONER HAS NOT ESTABLISHED CONFLICT AMONG COURTS OR

PRESENTED AN UNSETTLED QUESTION OF FEDERAL LAW; AND (2)

PETITIONER WAIVED ALL JURY INVOLVEMENT—CONSTITUTIONALLY

MANDATED OR NOT—IN DETERMINING THE PENALTY FOR HIS

CRIMES.....................................................5

CONCLUSION.................................................... 13

CERTIFICATE OF SERVICE........................................ 14

ii

TABLE OF CITATIONS

Cases

Apprendi v. New Jersey,

530 U.S. 466 (2000) ....................................... 2, 9

Blakely v. Washington,

542 U.S. 296 (2004) ......................................... 10

Boykin v. Alabama,

395 U.S. 238 (1969) .......................................... 6

Brady v. United States,

397 U.S. 742 (1970) ......................................... 10

Covington v. State,

228 So. 3d 49 (Fla. 2017) ................................. 1, 5

Douglas v. California,

372 U.S. 353 (1963) .......................................... 7

Halbert v. Michigan,

545 U.S. 605 (2005) ..................................... passim

Hurst v. Florida,

135 S. Ct. 1531 (2015) ................................. 5, 7, 9

Hurst v. Florida,

136 S. Ct. 616 (2016) ................................. 2, 9, 11

Hurst v. State,

202 So. 3d 40 (Fla. 2016) ............................... 11, 12

Iowa v. Tovar,

541 U.S. 77 (2004) ........................................... 6

Ring v. Arizona,

536 U.S. 584 (2002) ................................... 2, 9, 11

Rockford Life Insurance Co. v. Illinois Dept. of Revenue,

482 U.S. 182 (1987) .......................................... 6

United States v. Jackson,

390 U.S. 570 (1968) ......................................... 10

United States v. Mezzanatto,

513 U.S. 196 (1995) .......................................... 6

iii

Other Authorities

28 U.S.C. § 1257(a)............................................ 1

U.S. Sup. Ct. R. 10............................................ 5

iv

CITATION TO OPINION BELOW

The opinion of the Florida Supreme Court is reported at

Covington v. State, 228 So. 3d 49 (Fla. 2017).

JURISDICTION

The judgment of the Florida Supreme Court was entered on

August 31, 2017. A motion for rehearing was denied on October 11,

2017. (Pet. App. B). Petitioner invokes the jurisdiction of this

Court based upon 28 U.S.C. § 1257(a). Respondent agrees that this

statutory provision sets out the scope of this Court's certiorari

jurisdiction, but submits that this case is inappropriate for the

exercise of this Court's discretionary jurisdiction.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Respondent

accepts

Petitioner’s

statement

regarding

the

applicable constitutional and statutory provisions involved.

STATEMENT OF CASE

Petitioner

was

indicted

for

the

brutal

murders

of

his

girlfriend and her two small children, mutilation of their dead

bodies, and cruelty to an animal for beating his girlfriend’s dog

to death with a hammer. (Pet. Ex. A, pgs. 5-7, 9-14). On the

first day of trial testimony, Petitioner announced his intention

to plead guilty to the charges and to waive a jury for the

1

penalty phase. The trial court appointed two experts to evaluate

Petitioner’s

competency

to

plead

guilty.

The

evaluations

and

experts’ reports were completed the same evening. (Pet. Ex. A,

pg. 6).

When court reconvened the next day, Covington was given

time to meet with his attorneys and his family.

Covington then reaffirmed his desire to plead guilty

and waive a penalty phase jury. Covington’s counsel

supported his decisions to plead guilty and waive a

penalty phase jury. The court then conducted a

comprehensive plea colloquy with Covington during which

the court thoroughly informed him about the rights he

was waiving. *** The trial court accepted Covington’s

pleas of guilty to all seven counts as charged in the

indictment. Covington reaffirmed his desire to waive a

penalty phase jury, and the trial court accepted his

waiver.

(Pet. Ex. A, pg. 7).

After hearing the evidence presented at the penalty phase,

the trial judge sentenced Petitioner to death for all three

murders and to concurrent sentences of fifteen years for each of

the three counts of mutilation of a dead body and five years for

cruelty to an animal. (Pet. App. A, pg. 21-25).

On

appeal,

Petitioner

claimed,

inter

alia,

that

he

was

entitled to relief based on this Court’s ruling in Hurst v.

Florida, 136 S. Ct. 616 (2016). Petitioner argued that although

he waived his right to a jury during the penalty phase, he did

not waive his rights under Ring v. Arizona, 536 U.S. 584 (2002),

and Apprendi v. New Jersey, 530 U.S. 466 (2000). He asserted that

his waiver was not knowing, voluntary, and intelligent because he

2

waived a penalty phase jury without having been “specifically”

informed

that

determination

he

on

had

each

a

right

aggravator.

to

have

The

a

Florida

unanimous

jury

Supreme

Court

rejected this claim, reasoning:

A defendant like Covington who has waived the right to

a penalty phase jury is not entitled to relief under

Hurst. See Mullens v. State, 197 So. 3d 16, 40 (Fla.

2016) (concluding that defendant who waived penalty

phase jury was not entitled to relief under Hurst

because a defendant “cannot subvert the right to jury

factfinding by waiving that right and then suggesting

that

a

subsequent

development

in

the

law

has

fundamentally undermined his sentence”), cert. denied,

137 S. Ct. 672 (2017); see also Brant v. State, 197 So.

3d 1051, 1079 (Fla. 2016) (relying on Mullens to deny

Hurst relief in a postconviction context where the

defendant waived a penalty phase jury).

(Pet. App. A, pg. 42).

In reviewing the validity of Petitioner’s guilty pleas, the

lower court opined:

Before accepting Covington’s guilty pleas, the trial

court conducted a thorough plea colloquy with Covington

during which the court informed him of all the rights

he was waiving by pleading guilty. Covington indicated

both orally and in writing that he understood the

ramifications of his pleas, that although he was on

psychiatric medications, there was nothing that would

impair his understanding of his decision, and that he

was not being threatened or coerced into entering the

pleas. We have held that in a capital case where the

trial court explained to the defendant that he “was

entitled to a jury in both phases of the trial, that if

he elected to waive his right to a jury, the judge

alone would determine his sentence, and that the only

sentencing options were life or death” and the

defendant “stated that he understood the ramifications

of his plea, that he was not threatened or coerced, and

that he was not on any medication that would impair his

understanding

of

his

decision,”

the

defendant

“knowingly and voluntarily entered his plea, and the

trial court properly accepted it.” Winkles, 894 So. 2d

3

at 847. We therefore conclude that Covington’s pleas

were knowingly, intelligently, and voluntarily entered.

(Pet. App. A, pgs. 38-39).

Petitioner

now

seeks

certiorari

Supreme Court’s decision.

4

review

of

the

Florida

REASONS FOR DENYING THE WRIT

CERTIORARI REVIEW SHOULD BE DENIED BECAUSE (1)

PETITIONER HAS NOT ESTABLISHED CONFLICT AMONG COURTS OR

PRESENTED AN UNSETTLED QUESTION OF FEDERAL LAW; AND (2)

PETITIONER WAIVED ALL JURY INVOLVEMENT—CONSTITUTIONALLY

MANDATED OR NOT—IN DETERMINING THE PENALTY FOR HIS

CRIMES.

Petitioner

requests

that

this

Court

review

the

Florida

Supreme Court’s opinion affirming his death sentence, arguing

that he is entitled to relief under this Court’s decision in

Hurst v. Florida, 135 S. Ct. 1531 (2015), even though he waived

his right to a penalty phase jury. Petitioner contends that his

waiver was not knowing, voluntary, and intelligent because at the

time of his waiver, the Sixth Amendment right to unanimous jury

factfinding on aggravating circumstances did not exist in Florida

and therefore he cannot have waived such “nonexistent” right.

Petitioner does not provide any compelling reason for this

Court to review his case. U.S. Sup. Ct. R. 10. Indeed, Petitioner

cannot cite to any decision from this or any appellate court that

conflicts with the Florida Supreme Court’s decision in Covington

v.

State,

228

So.

3d

49

(Fla.

2017),

in

which

the

court

determined that a defendant may not abuse the judicial process by

waiving

the

right

to

a

jury

sentencing

and

then

claiming

reversible error upon a judicial sentence of death. Cases that do

not divide the federal or state courts or that do not present

important, unsettled questions of federal law usually do not

5

merit certiorari review. Rockford Life Insurance Co. v. Illinois

Dept. of Revenue, 482 U.S. 182, 184, n.3 (1987). No conflict or

unsettled question of federal law is presented in the instant

petition.

This Court has specifically recognized that “[l]egal rights,

even constitutional ones, are presumptively waivable.” Halbert v.

Michigan,

545

U.S.

605,

637

(2005)

(Thomas,

J.,

dissenting)

(citing United States v. Mezzanatto, 513 U.S. 196, 200-01 (1995)

(additional citations omitted)); see also Boykin v. Alabama, 395

U.S.

238

(1969).

Criminal

defendants

can

waive

their

constitutional rights so long as they knowingly, intelligently,

and voluntarily do so. Iowa v. Tovar, 541 U.S. 77, 78 (2004). It

is enough that an individual understands the waived right “in

general . . . even though the defendant may not know the specific

detailed consequences of invoking it.” Tovar, 541 U.S. at 92. To

escape the consequence of waiving one’s constitutional rights

there must be affirmative indications that, under the relevant

circumstances,

the

waiver

was

unknowing

or

involuntary.

Mezzanatto, 513 U.S. at 209. Here, the Florida Supreme Court

found Petitioner knowingly, voluntarily, and intelligently waived

a

penalty

phase

jury.

The

court

found

that

the

trial

court

conducted a full and adequate colloquy ensuring the validity of

Petitioner’s waiver. (Pet. App. A, pgs. 38-39).

Petitioner suggests that it would have been impossible for

6

him to waive a penalty phase jury prior to this Court’s decision

in Hurst v. Florida, 135 S. Ct. 1531 (2015) (applying Ring v.

Arizona,

536

U.S.

584,

609

(2002),

to

Florida’s

capital

sentencing scheme, reiterating that a jury, not a judge, must

find the existence of an aggravating factor to make a defendant

eligible for the death penalty). Petitioner cites to Halbert v.

Michigan, 545 U.S. 605 (2005), in support of his proposition that

at

the

time

he

waived

the

penalty

phase

jury,

he

had

no

recognized Sixth Amendment right to binding jury findings that he

could elect to forego. The decision in Halbert does not reach as

far as Petitioner claims. In Halbert, this Court held that an

indigent defendant, convicted on a plea in Michigan, was entitled

to counsel appointed by the appellate court for assistance in

preparing his application for leave to appeal. Halbert, 545 U.S.

at 623. Even though the defendant in Halbert had waived his right

to appeal, he had not waived his right to file an application for

leave to appeal and had been instructed that he had this right.

Id., at 617. Relying on Douglas v. California, 372 U.S. 353

(1963), this Court held that the appellate court should have

appointed

counsel

to

aid

the

indigent

defendant

in

the

preparation and review of his application for leave to appeal,

even though he had waived the separate right to a full appeal.

Id.

Petitioner relies on this Court’s rejection of Michigan’s

7

waiver argument. This Court stated that “at the time he entered

his plea, Halbert, in common with other defendants convicted on

their

pleas,

had

no

recognized

right

to

appointed

appellate

counsel he could elect to forego.” Halbert, 545 U.S. at 623. In

relying on this single sentence of the opinion, Petitioner fails

to recognize critical distinguishing factors that make Halbert

inapplicable to his case. First, the “waiver” asserted in Halbert

was, at best, an implicit waiver of appellate counsel that flowed

from

his

plea

rather

than

an

explicit

waiver

of

a

jury’s

participation in sentencing. Second, Halbert was not informed

that his plea would result in a complete denial of appointed

appellate

counsel

for

the

purpose

of

assisting

application

for

leave

to

appeal.

While

there

with

were

an

some

circumstances in which Michigan courts could appoint counsel, the

statute

operated

in

a

way

that

did

not

provide

indigent

defendants equal access to the courts. Therefore, this Court

concluded,

any

alleged

“waiver”

was

not

knowingly

and

intelligently given and Halbert was not sufficiently aware of the

relevant circumstances surrounding any such waiver.

Moreover, as the dissent in Halbert points out, this Court’s

cryptic statement implying that rights that are “not recognized”

cannot be waived “cannot possibly mean that only rights that have

been explicitly and uniformly recognized by statute or case law

may be waived.” Halbert, 545 U.S. at 640 (Thomas, J. dissenting).

8

Instead, defendants can and do waive rights whose existence is

unsettled. Id.

It is beyond dispute that,

at the time of Petitioner’s

waiver, it was “unsettled” whether Florida’s capital sentencing

statute violated defendants’ Sixth Amendment right to a jury

trial.

In

fact,

Petitioner

himself

filed

a

pretrial

motion

challenging the statute and claiming that it violated his Sixth

Amendment right to a jury trial. (Pet., pg. 3). This is the very

right Petitioner now claims he did not know existed at the time

of his waiver. Petitioner could have preserved his right to argue

the

unconstitutionality

of

Florida’s

procedure

by

subjecting

himself to it and challenging its validity on appeal. Claims

based on Apprendi v. New Jersey, 530 U.S. 466 (2000), Ring v.

Arizona, 536 U.S. 584 (2002), and Hurst v. Florida, 135 S. Ct.

1531 (2015), are available to defendants who are deprived of

requested penalty phase jury findings of sufficient aggravators.

Petitioner

waived

all

jury

involvement—constitutionally

mandated or not—in determining his penalty. Petitioner claims

that, had he known this Court in Hurst was going to agree with

his pretrial contention, he might have asked for a penalty phase

jury. The fact that Florida’s pre-Hurst statutory scheme did not

provide for binding jury findings regarding aggravating factors

is irrelevant to the question of whether capital defendants had a

federal

constitutional

(and

waivable)

9

right

to

binding

jury

findings prior to this Court’s Hurst decision. See Halbert, 545

U.S. at 641. See also Blakely v. Washington, 542 U.S. 296, 300

(2004) (“[N]othing prevents a defendant from waiving his Apprendi

rights. When a defendant pleads guilty, the State is free to seek

judicial sentence enhancements so long as the defendant either

stipulates

to

the

relevant

facts

or

consents

to

judicial

factfinding.”) (emphasis added) (citing Apprendi, 530 U.S. at

488; Duncan v. Louisiana, 391 U.S. 145, 158 (1968)).

Furthermore, even guilty pleas—which encompass waivers of

the right to a jury trial, the right to confront one’s accusers,

and the right to put the government to its burden of proof beyond

a reasonable doubt—are valid even if “later judicial decisions

indicate that the plea rested on a faulty premise.” Brady v.

United States, 397 U.S. 742, 757 (1970). In Brady, the defendant

claimed that this Court’s decision in United States v. Jackson,

390 U.S. 570 (1968), rendered his pre-Jackson plea invalid. This

Court disagreed, holding:

The fact that Brady did not anticipate United States v.

Jackson . . . does not impugn the truth or reliability

of his plea. We find no requirement in the Constitution

that a defendant must be permitted to disown his solemn

admissions in open court that he committed the act with

which he is charged simply because it later develops

that the State would have had a weaker case than the

defendant had thought or that the maximum penalty then

assumed applicable has been held inapplicable in

subsequent judicial decisions.

Brady, 397 U.S. at 757.

Likewise,

assuming

Petitioner

10

did

not

anticipate

this

Court’s decision in Hurst, that fact does not impact the knowing,

intelligent,

and

voluntary

nature

of

his

penalty

phase

jury

waiver. Petitioner’s explicit waiver of a penalty phase jury is a

waiver of his pre-trial Ring (and, by extension, Hurst) claim.

Moreover, the sentence imposed in this case complies with this

Court’s

Hurst

decision.

Petitioner’s

guilty

plea

alone

established beyond a reasonable doubt the existence of three

contemporaneous

first-degree

murders.

Therefore,

even

if

Petitioner had not waived his penalty phase jury, his sentence

does not violate this Court’s decision in Hurst.

Finally, Petitioner points to the Florida Supreme Court’s

opinion

in

Hurst

on

remand

as

“further

evidence

of

the

impossibility of waiver.” (Pet., pg. 9) In Hurst v. State, 202

So. 3d 40 (Fla. 2016), the state supreme court invalidated the

portion

of

Florida’s

post-Hurst

statute

that

permitted

the

imposition of a death sentence on a jury vote of ten-to-two or

more and, instead, held that unanimity is required not only for

the aggravating circumstances, but also as to the question of

whether the aggravating circumstances outweigh the mitigating

circumstances. In the lower court’s decision on remand in Hurst

v.

State,

the

court

stated

that

“[w]e

are

mindful

that

a

plurality of the United States Supreme Court, in a non-capital

case, decided that unanimous jury verdicts are not required in

all

cases

under

the

Sixth

Amendment

11

to

the

United

States

Constitution.” Hurst v. State, 202 So. 3d at 57 (citing Apodaca

v. Oregon, 406 U.S. 404 (1972) (plurality opinion)). The court

also noted that “the United States Supreme Court has not ruled on

whether unanimity is required under the Eighth Amendment.” Id. at

59. Arguably, the state court’s decision in Hurst v. State is an

improper expansion of this Court’s Sixth and Eighth Amendment

jurisprudence. It is, however, inapplicable to Petitioner’s case

and to the waiver issue presented in this Petition.

Because

the

Florida

Supreme

Court’s

decision

does

not

conflict with any decision of this Court or involve an important,

unsettled question of federal law, this Court should decline to

exercise its certiorari jurisdiction in this case.

12

CONCLUSION

Based on the foregoing, Respondent respectfully

requests

that this Court DENY the petition for writ of certiorari.

Respectfully submitted,

PAMELA JO BONDI

ATTORNEY GENERAL

S/ Candance M. Sabella

CANDANCE M. SABELLA*

Chief-Assistant Attorney General

Capital Appeals Bureau Chief

Florida Bar No. 0445071

*Counsel of Record

C. SUZANNE BECHARD

Assistant Attorney General

Florida Bar No. 0147745

Office of the Attorney General

3507 E. Frontage Road, Suite 200

Tampa, Florida 33607-7013

Telephone: (813) 287-7910

Facsimile: (813) 281-5501

capapp@myfloridalegal.com

candance.sabella@myfloridalegal.com

carlasuzanne.bechard@myfloridalegal.com

COUNSEL FOR RESPONDENT

13

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on this 12th day of February, 2018, a

true and correct copy of the foregoing RESPONDENT’S BRIEF IN

OPPOSITION has been submitted using the Electronic Filing System.

I further certify that a copy has been sent by U.S. mail to:

Julius

Aulisio,

Assistant

Public

Defender,

Tenth

Judicial

Circuit, State of Florida, Polk County Courthouse, P.O. Box 9000

- Drawer PD Bartow, Florida 33831. All parties required to be

served have been served.

S/ Candance M. Sabella

CANDANCE M. SABELLA

Counsel for Respondent

14