Opposition Brief — Robert Craft, Petitioner v. Florida

Supreme Court briefOct 8, 2021

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No. 21-5280

IN THE

Supreme Court of the Anited States

ROBERT CRAFT,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Florida

BRIEF IN OPPOSITION

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI

Associate Deputy Attorney General

Counsel of Record

William Chappell

Assistant Attorney General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, FL 32399-1050

Carolyn.Snurkowski@myfloridalegal.com

William.Chappell@myfloridalegal.com

Telephone: (850) 414-3300

Counsel for Respondent

CAPITAL CASE

QUESTION PRESENTED

Petitioner Robert Craft pled guilty to and was convicted of first-degree murder.

After he waived the right to a penalty-phase jury, the trial court found the existence

of four aggravating circumstances beyond a reasonable doubt and concluded that

those aggravators were sufficient to warrant the death penalty, outweighed the

mitigating circumstances, and that death was the appropriate sentence.

On appeal, Petitioner argued for the first time that the trial court committed

“fundamental error” in not applying the beyond-a-reasonable-doubt standard to its

finding as to the sufficiency of the aggravating circumstances. The Florida Supreme

Court rejected that claim. This Court’s decisions in McKinney v. Arizona, 140 S. Ct.

702 (2020), and Hurst v. Florida, 577 U.S. 92 (2016), it explained, did not require that

the finding at issue here—that “sufficient aggravating factors exist’—be made

beyond a reasonable doubt. In McKinney, this Court explicitly stated that its

decisions in Ring v. Arizona, 536 U.S. 584 (2002), and Hurst only require a jury to

find the existence of an aggravating circumstance beyond a reasonable doubt. 140 S.

Ct. at 707-08.

The question presented is:

Whether the Florida Supreme Court erred, as a matter of federal law, in rejecting

Petitioner’s unpreserved claim of fundamental error.

TABLE OF CONTENTS

QUESTION PRESENTED. ...00..0...ecccccceececcceeeeeneeeenerenceseneecessanececenaneeeeeesaneeesaneseneeeeneeeaes i

TABLE OF AUTHORITIES... cc ceceecesscnceeeeneesseeeesacesessaeeeeeneceeeeseccueeeeseseeeeeessens iii

STATEMENT 00000... eeeeeceeeseeceesesneneecesnseeeeseseneessoneesaceeesneescsaneesesueneceeesseeecessaeessneeesseeeass 1

REASONS FOR DENYING THE PETITION .....00......cccccccccssceeeeeeeeeeeesseneeeseeeseeeesesneees 5

I. The Decision Below Is Correct ..............ccccccescceeeeeeeeceeeeeeecneeeeeeereeeeeeneeseeeeeneeeneeeees 6

II. The Decision Below Does Not Conflict with This Court’s Precedents............. 14

III. This Case Is a Poor Vehicle for Resolving Petitioner’s Question Presented...16

CONCLUSION o.oo cceccceeceeeeeeeesseceeeseeeeseseaeaesssareeecsseeaeeseaseeaeonseeseeeeesueseeseneneees 188

TABLE OF AUTHORITIES

Cases

Alleyne v. United States,

570 U.S. 99 (2013) ..ccccccccscccessessesseccsseseecessessesessucsucsaesseesssacssessesseessssesesusssssseeneeses 8, 14

Apprendi v. United States,

580 U.S. 466 (2000)... ee ccccccccecceccnecccecccecsesssseceeceessseseeceeseesesesassnseeseeeccesees 11, 15

Clemons v. Mississippi,

494 U.S. 738 (1990)............cccccccscessscsessssssssssneneeccecsesssececeesesseneesecceceeeeseesesssaeseeeeeeess 13

Craft v. State,

312 So. 3d 45 (Fla. 2020) 200... cecssseccececececcecseessncsnceeeeceeccecsecsececceseeeeeeerecs passim

Craft v. State,

No. SC19-953, (Nov. 12, 2019)... cecceececsesececeeceeesesseseeseeneesesseceecvececesseneeeeeeeess 5

Eddings v. Oklahoma,

455 U.S. 104 (1982)... cccesscesseessessssssseessceeceeceseescceeeeseseescenseeceeeeceeeeeesesnensesseceesess 7

Hurst v. Florida,

B77 U.S. 92 (2016)........ cece eceeesseeecenecsceeessesseneeeeecsessuseeesenesseneueeseseesensessenssees i, 1, 3, 16

In re Winship,

397 U.S. 858 (1970)...........cssscssscscsssssesssssssnsecseecesesessseaeecessnsenseseesseesessesesausaneeeees 10, 14

Kansas v. Carr,

577 U.S. 108 (2016)..........ccsscccsccccccceccsssescceesceccessssensesesessseseseeseseessesssnssenseseseees 10, 18

Kansas v. Marsh,

B48 U.S. 163 (2006)...........ccccccccccccccccssssssssssseseccecssssnensecesccnsnseececseeseescesssesenseseeseeeseses 10

McKinney v. Arizona,

140 S. Ct. 702 (2020)... ccceeeccseeceecececeeecsescsnneeceecsenseceeessessnananseeeceeseeesssses passim

Newberry v. State,

288 So. 3d 1040 (Fla. 2019) 0.0.0... cssssssssssssseceeceessssececescssnceseecceesecesseeeasenseeeaeeeesaees 5

Oregon v. Ice,

B55 U.S. 160 (2009)............cccccccceccccccccessseeeeeeseceececsesessnensessesecececececeeceusensansausereensesees 13

Poole v. Florida,

No. 20-250 (Jan. 11, 2021) 00... eececcccccecsscssensececeseeeseesessssesessansesesnseesecessueesseeeesaeens 6

Proffitt v. Florida,

428 U.S, 242 (1976 ).............cccccccccccsssecccceseceeececeuceceesssssessesesusseceseceseeeeeasseeeceeerees 11,138

Ring v. Arizona,

586 U.S. 584 (2002)... cceeecsseccccceeececcecssececceceeeeceeeeseeseeeeeeausnenseeseeecsensssssees 1, 1, 16

Rogers v. Florida,

141 S. Ct. 284 (Oct. 5, 2020)... ee ccecscesssssneceecesessececesenseueeeeeeeeesseesessssseeeesesesevsens 6

Rogers v. State,

285 So. 3d 872 (Fla. 2019) ........ccccceccsseeeeececeeceesssseeeeecssssneeeeecesssesssssnsseneeseessseeseees 5,6

Smiley v. State,

295 So. 3d 156 (Fla. 2020) .0..... cc eceseeenseeseeeccecesssssncecesesseneeceeeeseseessesecsrsneeeeereessnees 17

State v. Poole,

297 So. 3d 487 (Fla. 2020) ......ccccccccsccceseceeeseeeesesseeeccesesscaceeeseessssaansaeceeesees 2, 6,9

United States v. Gabrion,

719 F.3d 511 (6th Cir. 2018)... ec ccccccceessseeeeectensnseeeececscecnssesecenessaccesacceseas 12

Williams v. Siate,

209 So. 3d 543 (Fla. 2017) ...ccccsscccsscecsesescessececcessescecsessecsucssessucsusssessessessesacssesaceesssess 17

Other Authorities

§ 775.082, Fla. Stat. (2010) 0... cccccccccecccecceeeeeeceeessesceeeeecenessenseceesseessaceeeeeeeeeseceeeesns 1

§ 921.141, Fla. Stat. (2010) 0... cccccsccecssrcceceeccsssssnseecesssssnseecessscesgnseseesceesseesensens 1

§ 921.141, Fla. Stat. (2017) ...... i ssessccccceccceseesssssssssscncncseeseseesesaeecseaseaeeceeeeeees passim

18 U.S.C. § 8558 oo... ceccccccccccsssneeceeecceccesscseneceeceeeceesesessnseneeseessssneeeessasseeeaeaseeseneseneesenenes 12

Merriam-Webster’s Dictionary,

https://www.merriam-webster.com/dictionary/fact ..............cccccsscsseeeenesncsteseseeeeneees 11

Stephen M. Shapiro et al.,

Supreme Court Practice § 4.4(f) (Oth ed. 2018) ........ cc cecccccecereeseeseeeseseeneseeseeens 18

STATEMENT

1. In Hurst v. Florida, 577 U.S. 92 (2016), this Court held that Florida’s capital

sentencing scheme violated the Sixth Amendment in light of Ring v. Arizona, 536

U.S. 584 (2002). Under Florida law, the maximum sentence a capital felon could

receive based on a conviction alone was life imprisonment. Hurst, 577 U.S. at 95.

Capital punishment was authorized “only if an additional sentencing proceeding

‘result[ed] in findings by the court that such person shall be punished by death.” Jd.

(quoting § 775.082(1), Fla. Stat. (2010)). At that additional sentencing proceeding, a

jury would render an advisory verdict recommending for or against the death penalty,

and in making that recommendation was instructed to consider whether sufficient

aggravating factors exist, whether mitigating circumstances exist that outweigh the

aggravators, and, based on-those considerations, whether death is an appropriate

sentence. § 921.141(2)(a)-(c), Fla. Stat. (2010).

This Court observed that it had previously declared invalid Arizona’s capital

sentencing scheme because the jury there did not make the “required finding of an

aggravated circumstance’—which exposed a defendant to “a greater punishment

than that authorized by the jury’s guilty verdict”—the Court held that that criticism

“applie[d] equally to Florida’s.” Hurst, 577 U.S. at 98 (quoting Ring, 536 U.S. at 604).

“Florida’s sentencing scheme, which required the judge alone to find the existence of

an aggravating circumstance, [was] therefore unconstitutional.” Jd. at 103.

In response to Hurst and the Florida Supreme Court’s subsequent interpretation

of that decision, the Florida Legislature repeatedly amended section 921.141 to

comply with those rulings. As relevant here, the amended law requires the jury, not

the judge, to “determine if the state has proven, beyond a reasonable doubt, the

existence of at least one aggravating factor.” § 921.141(2)(a) Fla. Stat. (2017). If the

jury concludes that no aggravating factor has been proven, the defendant is

“ineligible” for the death penalty. Id. § 921.141(2)(b)1. If on the other hand the jury

unanimously finds at least one aggravator, the defendant is “eligible for a sentence

of death.” Id. § 921.141(2)(b)2. In that event, the jury must make a sentencing

recommendation based on a weighing of three considerations: first, “[w]hether

sufficient aggravating factors exist”;! second, “[w]hether aggravating factors exist

which outweigh the mitigating circumstances found to exist”; and third, based on the

other two considerations, “whether the defendant should be sentenced to life

imprisonment without the possibility of parole or to death.” § 921.141(2)(b)2.a.-c.

By assigning to the jury those latter three findings, the Florida Legislature

granted capital defendants procedural protections beyond what Hurst required. See

Hurst, 577 U.S. at 103 (requiring a jury to find “the existence of an aggravating

circumstance”); see also id. at 105—06 (Alito, J., dissenting) (“[T]he Court’s decision is

1 As construed by the Florida Supreme Court, “it has always been understood that

... sufficient aggravating circumstances’ means ‘one or more.” State v. Poole, 297 So.

3d 487, 502 (Fla. 2020) (citing cases). Any “suggestion that ‘sufficient’ implies a

qualitative assessment of the aggravator—as opposed simply to finding that an

aggravator exists—is unpersuasive and contrary to this decades-old precedent.” Id. at

502-03 (disapproving prior case holding that “the existence of an aggravator and the

sufficiency of an aggravator are two separate findings, each of-which the jury must

find unanimously,” and explaining that, “[u]nder longstanding Florida law, there is

only one eligibility finding required: the existence of one or more statutory

aggravating circumstances’).

based on a single perceived defect, i.e., that the jury’s determination that at least one

aggravating factor was proved is not binding on the trial judge.”). Neither section

921.141 nor the standard jury instructions require that the jury undertake those

determinations by any particular standard of proof.

2. While an inmate in a Florida prison, Petitioner Robert Craft strangled and beat

to death a fellow inmate, Darren W. Shira, in the cell they shared. Craft v. State, 312

So. 3d 45, 47 (Fla. 2020). Petitioner subsequently confessed multiple times, including

in two recorded statements to the Florida Department of Law Enforcement and in

letters to the state attorney’s office and the trial court. Id.

Specifically, Petitioner confessed to planning the murder days in advance, after

he discovered that the victim was a child molester. Id. at 47—48. Petitioner admitted

that he intentionally “tortured” the victim and beat him for approximately thirty

minutes before strangling him to death with his hands and tying part of his prison

pants around the victim’s neck. Jd. Petitioner also told law enforcement that he

wanted the murder to be “CCP” and asked if it would be considered a hate crime

because the victim was Jewish, gay, a child molester, and ex-Navy. Id.

3. Petitioner proceeded pro se, pled guilty to first-degree murder, waived the right

to a jury during the penalty phase, and attempted to waive the presentation of

mitigating evidence. Jd. at 48. His penalty phase was therefore conducted solely

before a judge.

At that proceeding, Petitioner again attempted to waive the presentation of

mitigating evidence. Id. at 48-49. However, Petitioner presented the testimony of four

relatives, all of whom testified about Craft’s traumatic childhood, background, and

their love for him. Id. at 50. Petitioner also testified on his own behalf, admitting he

murdered the victim, explaining that he wanted the death sentence, and expressing

love for his family. Jd. at 51. The State then presented non-statutory mitigation based

on a pre-sentence investigative report, mental health evaluations, and other facts

present in the court file. Id.

Petitioner did not ask the trial court—in making its findings as to sufficiency—to

apply the beyond-a-reasonable-doubt standard of proof.

In its sentencing order, the trial court concluded that death was the appropriate

sentence. R. 156. It found the following four aggravating circumstances beyond a

reasonable doubt: (1) the capital felony was committed by a person previously

convicted of a felony and under sentence of imprisonment; (2) prior violent felony; (3)

the capital felony was especially heinous, atrocious, or cruel (HAC); and (4) the

murder was committed in a cold, calculated, and premeditated manner without any

pretense of moral or legal justification (CCP). R. 145-51. It assigned each of these

agegravators either “great weight” or “very great weight.” R. 155—56. And it found that

“the aggravating factors clearly, convincingly, and beyond a reasonable doubt

outweigh the mitigating factors.” R. 156.

4, On appeal, Petitioner asked the Florida Supreme Court to reverse for a new

penalty phase because the trial court failed to find the sufficiency of the aggravators

beyond a reasonable doubt, which he alleged was a “fundamental error.” Initial Br.,

Craft v. State, No. SC19-953, at *60—61 (Nov. 12, 2019). Under Florida law, the

fundamental error doctrine is a basis for reversing due to unpreserved but egregious

trial court errors. The Florida Supreme Court rejected that claim. Craft, 312 So. 3d

at 57. It explained that, under this Court’s most recent pronouncements, and its own,

that finding is not an element. Id. (citing McKinney v. Arizona, 140 S. Ct. 702 (2020),

and Rogers v. State, 285 So. 3d 872, 886 (Fla. 2019)). Thus, this determination is “not

subject to the beyond a reasonable doubt standard of proof.” Id. (quoting Newberry v.

State, 288 So. 3d 1040, 1047 (Fla. 2019)).

5. Several months before the Florida Supreme Court’s decision, this Court decided

McKinney. There, Court confirmed that, under Ring and Hurst, the Sixth

Amendment only requires the jury to find the existence of an aggravating

circumstance. Id. at 707—08. The sufficiency of the aggravating factors may instead

constitutionally be made by a judge. In other words, the sufficiency of the aggravators

is not an element of capital murder under Apprendi and its progeny. See id.

REASONS FOR DENYING THE PETITION

I. The Decision Below Is Correct.

In rejecting Petitioner’s claim that the trial court fundamentally erred by

sentencing him to death without finding that the aggravating factors were sufficient

to impose death beyond a reasonable doubt, the Florida Supreme Court explained

that Petitioner failed to show error. Craft v. State, 312 So. 3d 45, 57 (Fla. 2020). The

court was right to hold the sufficiency determination is not an “element,” id., and its

opinion correctly applied this Court’s precedents to Florida’s capital sentencing

scheme.

1. As the Florida Supreme Court has explained, the penalty phase findings at

issue here—whether the aggravators are sufficient—is “not [an] element|] of the

capital felony of first-degree murder.” Rogers v. State, 285 So. 3d 872, 885 (Fla. 2019),

cert. denied, Rogers v. Florida, 141 S. Ct. 284 (Oct. 5, 2020); see also State v. Poole,

297 So. 3d 487, 503-13 (Fla. 2020), cert. denied, Poole v. Florida, No. 20-250 (Jan. 11,

2021). “Rather, [it is a] finding[] required of a jury: (1) before the court can impose the

death penalty for first-degree murder, and (2) only after a conviction or adjudication

of guilt for first-degree murder has occurred.” Rogers, 285 So. 3d at 885 (emphases in

original). That is, the sufficiency of the aggravators is a sentencing factor intended to

make the imposition of capital punishment less arbitrary by guiding the exercise of

the judge and jury’s discretion within the applicable sentencing range.

The plain text of Florida’s death-penalty statute supports this reading:

If the jury ... [uJnanimously finds at least one aggravating factor, the

defendant is eligible for a sentence of death and the jury shall make a

recommendation to the court as to whether the defendant shall be

sentenced to life imprisonment without the possibility of parole or to

death.

§ 921.141(2)(b)2., Fla. Stat.

2. In light of this Court’s recent decision in McKinney v. Arizona, 140 S. Ct. 702

(2020), Petitioner’s contrary argument fails on its own terms. Petitioner frames the

constitutional question as whether the sufficiency of the aggravators can be

characterized as the functional equivalent of an element. See Pet. 8-17. But

Petitioner does not cite—let alone address—McKinney, which rejected the theory that

a jury must do more than find the existence of an aggravating factor beyond a

reasonable doubt, and thus made clear that a determination that aggravators are

sufficient to impose the death penalty is not an “element” of capital murder for

purposes of Apprendi and its progeny.

In McKinney, a capital defendant challenged his death sentence because the

sentencing judge had failed to consider his posttraumatic stress disorder (PTSD) as

a mitigating factor, thereby violating Eddings v. Oklahoma, 455 U.S. 104 (1982)

(holding that a capital sentencer may not refuse as a matter of law to consider

relevant mitigating evidence). On remand from the Ninth Circuit, the Arizona

Supreme Court performed its own de novo weighing of the aggravators and

mitigators, including the defendant’s PTSD, and upheld the sentence. McKinney, 140

S. Ct. at 706. In the state supreme court’s independent judgment, the balance of the

aggravators and mitigators warranted the death penalty. Id.

On certiorari review, the defendant argued that “a jury must resentence him”

because a court “could not itself reweigh the aggravating and mitigating

circumstances.” Id. This Court rejected that claim because, “Under Ring and Hurst,”

“a jury must find the aggravating circumstance that makes the defendant death

eligible.” Id. at 707. “[I]mportantly,” however, “in a capital sentencing proceeding just

as in an ordinary sentencing proceeding, a jury (as opposed to a judge) is not

constitutionally required to weigh the aggravating and mitigating circumstances or

to make the ultimate sentencing decision within the relevant sentencing range.” Id.;

see also id. at 708 (explaining that “Ring and Hurst did not require jury weighing of

aggravating and mitigating circumstances’).

Because the Sixth Amendment permits the “weigh[ing] [of] aggravating and

mitigating” evidence by judges, zd. at 707, the determination that aggravators

outweigh mitigators, or the determination that the aggravators are sufficient to

impose a death sentence, cannot be considered an “element” of the offense. And

because those determinations are not elements, they are not subject to the beyond-areasonable-doubt standard. See Alleyne v. United States, 570 U.S. 99, 107 (2018)

(“The touchstone for determining whether a fact must be found by a jury beyond a

reasonable doubt is whether the fact constitutes an ‘element’ or ‘ingredient’ of the

charged offense.”). In other words, McKinney rejects an essential premise of

Petitioner’s argument: that anything more than the finding of an aggravating factor

is either an “element” or the “functional equivalent” of an element. See Pet. 8-17.

The outcome is not different simply because Florida has chosen to assign (in cases

where the right toa penalty-phase jury has not been waived) the sufficiency of the

aggravators determination to the jury, rather than the judge as it constitutionally

could have. If the Sixth Amendment permits a judge to determine whether

aggravators outweigh mitigators, or whether the aggravators are sufficient to impose

the death penalty, and further permits the judge to make either determination by

some lesser standard (or none at all), nothing prevents the state from re-allocating

that task to the jury by the same standard of proof. Any contrary theory would punish

states for being more generous in extending procedural protections to capital

defendants by forcing them to extend all available procedural protections. But

because the weight of the aggravators is not an element of a capital offense, that

determination need not be found by a jury and, correspondingly, need not be found

beyond a reasonable doubt. See McKinney, 140 S. Ct. at 707—08.

Finally, the statutory requirement that the jury weigh, among other

considerations, “[w]hether sufficient aggravating factors exist,” § 921.141(2)(b)2.a.,

Fla. Stat., adds nothing to Petitioner’s argument. As construed by the Florida

Supreme Court, “it has always been understood that .. . ‘sufficient aggravating

circumstances’ means ‘one or more.” Poole, 297 So. 3d at 502 (citing cases). Put

differently, “[u]Jnder longstanding Florida law, there is only one eligibility finding

required: the existence of one or more statutory aggravating circumstances.” Id. at

502-03. And it is undisputed that, in this case, that requirement was satisfied when

the judge found multiple aggravating circumstances beyond a reasonable doubt. See

R. 145-55.

3. For reasons this Court has already explicated, it would make little sense to

apply the beyond-a-reasonable-doubt standard to normative determinations of the

kind at issue here. In Kansas v. Carr, this Court “doubt[ed]” that it is “even possible

to apply a standard of proof to the mitigating-factor determination.” 577 U.S. 108,

119 (2016). This Court reasoned that “[i]t is possible to do so for the aggravatingfactor determination,” on the one hand, because the existence of an aggravator “is a

purely factual determination.” Jd. Whether mitigation exists, on the other hand, “is

largely a judgment call”—or “perhaps a value call’—just as the “ultimate question

whether mitigating circumstances outweigh aggravating circumstances is mostly a

question of mercy.” Id. Thus, “[iJt would mean nothing . . . to tell the jury that the

defendants must deserve mercy beyond a reasonable doubt; or must more-likely-thannot deserve it.” Id.

The beyond-a-reasonable-doubt standard ensures that the prosecution must

“persuad[e] the factfinder at the conclusion of the trial of [the defendant’s] guilt

beyond a reasonable doubt.” In re Winship, 397 U.S. 358, 364 (1970). This safeguard

preserves the “moral force of the criminal law” because it does not “leave[] people in

doubt whether innocent men are being condemned.” Jd. But sufficiency and weighing

do not go to whether the defendant is guilty of a capital offense—that question is

answered when the jury finds the existence of an aggravated first-degree murder. See

_ McKinney, 140 S. Ct. at 707; Kansas v. Marsh, 548 U.S. 1638, 175-76 (2006).

Sufficiency and weighing instead go to the appropriateness of the penalty. That is,

they are normative judgments, not facts.

A fact is “something that has actual existence” or, perhaps more appropriately in

this context, is “a piece of information presented as having objective reality.” “Fact,”

Merriam-Webster’s Dictionary, https://www.merriam-webster.com/dictionary/fact.

Facts have their basis in observable truths about the world. A fact either is or isn’t;

although a person’s perception of facts may be open to debate, facts are objectively

discernable. By contrast, normative judgments are opinions. As such, they turn on

the subjective views of individual decisionmakers. In short, they are questions

involving discretion.

Consequently, a jury is not better situated to make normative determinations

than a judge. Indeed, sufficiency and weighing no more need be conducted by a jury

than the traditional in-range sentencing discretion performed by judges throughout

the nation countless times each day. As McKinney recognized, Apprendi expressly

reserved for judges the power to exercise that type of discretion. McKinney, 140 S. Ct.

at 707 (“[T]his Court carefully avoided any suggestion that ‘it is impermissible for

judges to exercise discretion—taking into consideration various factors relating both

to offense and offender—in imposing a judgment within the range prescribed by

statute.” (quoting Apprendi v. United States, 5380 U.S. 466, 481 (2000))); see also

Proffitt v. Florida, 428 U.S. 242, 252 (1976) (plurality opinion) (“[I]t would appear

that judicial sentencing should lead, if anything, to even greater consistency in the

imposition . . . of capital punishment, since a trial judge is more experienced in

sentencing than a jury, and therefore is better able to impose sentences similar to

those imposed in analogous cases.”).

4. Petitioner's substantial expansion of the Apprendi doctrine would have

significant and troubling practical implications, including for non-capital sentencing.

The federal statute governing criminal sentences, for example, provides that “[t]he

court shall impose a sentence sufficient, but not greater than necessary, to comply

with” certain statutorily enumerated sentencing factors. 18 U.S.C. § 3553(a). Given

that a federal sentence must, by statute, be supported by a normative judgment that

the chosen sentence is “not greater than necessary” to effectuate “the purposes set

forth in” the statutory sentencing factors, see id., must that “finding” be made by a

jury beyond a reasonable doubt? And if not, why is that normative judgment any

different than the moral determination at issue here—i.e., that aggravating factors

outweigh mitigating circumstances? See United States v. Gabrion, 719 F.3d 511, 533

(6th Cir. 2018) (en banc).

Notably, Petitioner himself appears unwilling to accept the practical consequences

of his own theory. Petitioner asks this Court to rule that a determination—

sufficiency—-must be made beyond a reasonable doubt. But the statute also provides

that the trial court may not impose death unless the jury further determines, based

on that factor and whether the aggravators outweigh the mitigators, that death is the

appropriate sentence. See § 921.141(2)(b)2.c., (3)(a)2., Fla. Stat. (requiring the jury

to determine, based on sufficiency and weighing, “whether the defendant should be

sentenced to life imprisonment without the possibility of parole or to death,” and

providing that the court may sentence the defendant to death if, and only if, “the jury

has recommended a sentence of . . . [dJeath”). Petitioner nevertheless does not go so

far as to say that the jury’s ultimate recommendation that “the defendant should be

sentenced to . . . death,” § 921.141(2)(b)2.c., Fla. Stat., must be made beyond a

reasonable doubt. And for good reason: “Any argument that the Constitution requires

that a jury impose the sentence of death,” this Court has explained, “has been soundly

rejected by prior decisions of this Court.” Clemons v. Mississippi, 494 U.S. 738, 745

(1990); see also McKinney, 140 S. Ct. at 707; Proffitt, 428 U.S. at 252 (plurality

opinion).

Nor would Petitioner’s proposed extension of the Apprendi doctrine necessarily

redound to the benefit of criminal defendants. If state laws like the one Petitioner

asks this Court to strike down—those that seek to protect criminal defendants by

reducing the risk of arbitrariness and guiding a sentencing authority’s discretion to

impose particularly harsh punishments—give rise to otherwise non-existent due

process problems, lawmakers may well respond by repealing, rolling back, or

declining to create such protections in the first place. That is one reason why this

Court has “warned against wooden, unyielding insistence on expanding the Apprendi

doctrine far beyond its necessary boundaries.” Oregon v. Ice, 555 U.S. 160, 172 (2009)

(citation omitted) (quotation marks omitted); see Ring, 536 U.S. at 613 (Kennedy, J.,

concurring).

5. All of this explains why this Court has denied certiorari in several cases

presenting this identical issue, see Rogers v. Florida, No. 19-8473; Bright v. Florida,

No. 20-6824; Craven v. Florida, No. 20-8403; Santiago-Gonzalez v. Florida, No. 20-

7495, and in a case presenting the underlying question whether the Sixth and Eighth

Amendments require that a jury find that the aggravators outweighed the mitigators,

see Poole v. Florida, No. 20-250.

II. The Decision Below Does Not Conflict with This Court’s Precedents.

Petitioner does not assert that his question presented implicates a division among

the lower courts. See Pet. 8-17. Instead, he claims that the Florida Supreme Court’s

decision “conflicts with this Court’s decisions in Apprendi, Ring, Alleyne, and Hurst

v. Florida.” Id. at 18. Petitioner is incorrect.

The cases he cites do not conclude that the beyond-a-reasonable-doubt standard

applies to non-factual determinations intended to guide the jury’s sentencing

recommendation. To the contrary, those cases evince this Court’s understanding that

that standard of proof is limited to factual findings. Due Process prescribes the

beyond-a-reasonable-doubt standard only to “facts” found by “the factfinder.” In re

Winship, 397 U.S. at 363-64. The Due Process Clause, the Court there held, “protects

the accused against conviction except upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which he is charged.” Id. at 364; see also

Alleyne, 570 U.S. at 103 (“Any fact that, by law, increases the penalty for a crime is

an ‘element’ that must be submitted to the jury and found beyond a reasonable

doubt.”).

Consistent with Winship, this Court in Apprendi expressly and repeatedly

explained that the beyond-a-reasonable-doubt standard of proof applies to “facts.” For

example, the Court:

e required the states to “adhere to the basic principles undergirding the

requirements of trying to a jury all facts necessary to constitute a statutory

offense, and proving those facts beyond reasonable doubt,” Apprendi v. United

States, 530 U.S. 466, 483-84 (2000);

e referenced the jury’s “assessment of facts,” td. at 490 (citation omitted)

(quotation marks omitted);

e described the “novelty of a legislative scheme that removes the jury from the

determination of a fact that, if found, exposes the criminal defendant to a

penalty exceeding the maximum he would receive if punished according to the

facts reflected in the jury verdict alone,” id. at 482—83 (emphasis omitted); and

e explained that “constitutional limits exist to States’ authority to define away

facts necessary to constitute a criminal offense” and “a state scheme that keeps

from the jury facts that ‘expos[e] [defendants] to greater or additional

punishment’ may raise serious constitutional concern.” Jd. at 486 (internal

citation omitted).

Thus, Apprendi did not hold that the beyond-a-reasonable-doubt standard should

be extended to non-factual normative judgments of the kind at issue here, and this

Court’s statements concerning that standard of proof undermine rather than support

Petitioner’s claim.

This Court’s cases applying Apprendi to the capital sentencing context likewise

did not hold that the Due Process Clause requires the jury to determine, beyond a

reasonable doubt, that normative considerations support the imposition of the death

penalty. In Ring, for example, this Court explained that “[c]apital defendants, no less

than noncapital defendants, .. . are entitled to a jury determination of any fact on

which the legislature conditions an increase in their maximum punishment.” 536 U.S.

at 589. So too in Hurst, where this Court reiterated that the sentencing scheme in

Ring violated the defendant’s right to have “a jury find the facts behind his

punishment.” 577 U.S. at 98; see also id. at 94 (“The Sixth Amendment requires a

jury, not a judge, to find each fact necessary to impose a sentence of death.”).

In sum, the decision below does not conflict with this Court’s precedents. None of

the cases Petitioner cites held that a jury (or here, a judge) must find beyond a

reasonable doubt that aggravating factors are sufficient to warrant the imposition of

capital punishment; and still less did those cases hold that a trial court commits

fundamental error under Florida law if it does not sua sponte provide itself some such

instruction. What is more, the reasoning of those cases expressly ties the beyond-areasonable-doubt standard to factfinding of a kind not at issue here—and thus

undermines rather than supports Petitioner’s claim.

Ill. This Case Is a Poor Vehicle for Resolving Petitioner’s Question

Presented.

Petitioner’s case presents a poor vehicle for this Court to resolve his Question

Presented because even if the trial court erred by failing to find a normative

determination beyond a reasonable doubt, there exists no possibility that Petitioner

would receive relief.

Even if the state trial court erred in not sua sponte instructing itself in a manner

Petitioner did not ask for—and that no court has ever deemed necessary—any such

determination from this Court would not affect Petitioner’s sentence. That is because

a defendant who appeals an unpreserved claim of error at sentencing must meet the

“high burden,” under Florida law, of showing that “the [judge’s] recommendation of

death could not have been obtained without the assistance of the alleged error.”

Smiley v. State, 295 So. 3d 156, 172 (Fla. 2020); see Williams v. State, 209 So. 3d 543,

558 (Fla. 2017).

Of particular relevance, ample record evidence supports the trial court’s

determination that the aggravators were sufficient to impose the death penalty.

Petitioner beat and strangled his cellmate for half an hour, admitting later to

investigators that the murder was premeditated. Petitioner attempted to waive the

presentation of mitigation evidence and asked the trial court for the death penalty.

And Petitioner was sentenced to death based on four aggravators: (1) murder

committed while under sentence of imprisonment, (2) prior violent felony, (8) HAC,

and (4) CCP. As the Florida Supreme Court explained, three of those factors—prior

violent felony, HAC, and CCP—have repeatedly been identified “three of the most

serious and weighty aggravators” in Florida’s death penalty scheme. Craft, 312 So.

3d at 56.

Not only can Petitioner not demonstrate prejudice under his unique facts, the

better view is that “[iJt would [have] mean[t] nothing” to say that certain “value

call[s}”—like whether the aggravators were sufficient and whether the defendant

deserves mercy—wmust be found “beyond a reasonable doubt.” Carr, 577 U.S. at 119.

In short, Petitioner cannot show that any error in his case was harmful under

state law, and therefore he would not be entitled to any relief even if his federal

constitutional claim had merit. See Stephen M. Shapiro et al., Supreme Court

Practice § 4.4(f) (10th ed. 2013) (observing that “certiorari may be denied” where the

question presented is “irrelevant to the ultimate outcome of the case”).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,