Petition for Writ of Certiorari — Ronald Carl Pennington, Jr., Petitioner v. Florida
Supreme Court briefMar 14, 2025
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No.
IN THE SUPREME COURT OF THE UNITED STATES
RONALD CARL PENNINGTON, JR., PETITIONER
v.
STATE OF FLORIDA, RESPONDENT.
_____________
ON PETITION FOR A WRIT OF CERTIORARI TO
THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA
_____________
PETITION FOR A WRIT OF CERTIORARI
DANIEL EISINBGER
Public Defender
Jeffrey L. Anderson*
Assistant Public Defender
Counsel of Record
Office of the Public Defender
Fifteenth Judicial Circuit of Florida
421Third Street
West Palm Beach, FL 33401
(561) 355–7600
janderson@pd15.org
jcwalsh@pd15.org
appeals@pd15.org
* Member of the United States Supreme Court Bar
QUESTIONS PRESENTED
1. Whether instructing the jury that the defendant could be
found guilty on a theory that he aided and abetted a State agent in
committing a crime effectively negated his entrapment defense thus
violating his constitutional rights under the Sixth and Fourteenth
Amendments?
2. Whether, contrary to the Due Process and Jury Clauses, the
trial court erred in imposing an enhanced sentence under a statute
authorizing the enhancement based on nonjury fact-findings upon
proof by a preponderance of the evidence?
3. Whether a mandatory life sentence for a non-homicide
offense violates the cruel and unusual punishment clauses in light
of this Court’s decisions subsequent to Harmelin v. Michigan, 501
U.S. 957 (1991)?
4. Whether Petitioner was deprived of his right, under the
Sixth and Fourteenth Amendments, to a trial by a 12-person jury
when the defendant is charged with a serious felony?
Questions 2 and 4 are before this Court in the petition for writ
of certiorari in Parker v. Florida Case No. 24-6146. The arguments
as to those questions in this petition are essentially identical, if not
i
literally identical, to the arguments in the petition in that case.
ii
RELATED PROCEEDINGS
The proceeding listed below is directly related to the abovecaptioned case in this Court: Pennington v. State, 397 So. 3d 1055
(Fla. 4th DCA 2024) (mem.).
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ............................................................... i
RELATED PROCEEDINGS ............................................................. iii
TABLE OF CONTENTS ...................................................................iv
INDEX TO APPENDICES ................................................................ v
TABLE OF AUTHORITIES ................. .............................................vi
OPINION BELOW ........................................................................... 1
JURISDICTION ............................................................................... 2
CONSTITUTIONAL AND STATUTORY PROVISIONS ........................ 2
STATEMENT OF THE CASE ........................................................... 6
REASONS FOR GRANTING THE PETITION
I: INSTRUCTING THE JURY THAT THE DEFENDANT
COULD BE FOUND GUILTY ON A THEORY THAT HE
AIDED AND ABETTED A STATE AGENT EFFECTIVELY
NEGATED HIS ENTRAPMENT DEFENSE AND VIOLATED
HIS CONSTITUTIONAL RIGHTS UNDER THE SIXTH AND
FOURTEENTH AMENDMENTS ............................................. 10
II: FLORIDA’S PRISON RELEASEE REOFFENDER
STATUTE IS UNCONSTITUTIONAL ....................................... 15
III: A MANDATORY LIFE SENTENCE FOR A NONHOMICIDE OFFENSE VIOLATES THE CRUEL AND
UNUSUAL PUNISHMENT CLAUSES ..................................... 19
IV: THE REASONING OF WILLIAMS V. FLORIDA HAS
BEEN REJECTED, AND THE CASE SHOULD BE
OVERRULED........................................................................ 25
iv
INDEX TO APPENDICES
A. District Court’s Decision ....................................................... a1-2
B. Order Denying Rehearing ......................................................... a3
C. Excerpts from Initial Brief ................................................... a4-27
v
TABLE OF AUTHORITIES
Page
Cases
Almendarez-Torres v. United States, 523 U.S. 224 (1998) .............. 16
Apodaca v. Oregon, 406 U.S. 404 (1972) ....................................... 28
Ballew v. Georgia, 435 U.S. 223 (1978)................................... 31, 32
Burch v. Louisiana, 441 U.S. 130 (1979) ....................................... 27
Campbell v. Ohio, 138 S. Ct. 1059 (2018)...................................... 21
Cheek v. State, 498 U.S. 192 (1991).............................................. 11
Duncan v. Louisiana, 391 U.S. 145 (1968) .................................... 27
Erlinger v. United States, 602 U.S. 821 (2024) ........................ 15, 16
Florida Fertilizer & Mfg. Co. v. Boswell, 34 So. 241 (Fla. 1903) ...... 34
Francis v. Franklin, 471 U.S. 307 (1985) ................................. 12, 13
Gibson v. State, 16 Fla. 291 (1877) ............................................... 34
Graham v. Florida, 560 U.S. 48 (2010) .......................................... 20
Harmelin v. Michigan, 501 U.S. 957 (1991) ............................. 19, 21
Hollingsworth v. State, 293 So. 3d 1049 (Fla. 4th DCA 2020) .......... 9
Jackson v. State, 926 So. 2d 1262 (Fla. 2006) ................................ 2
Mallet v. State, 280 So. 3d 1091 (Fla. 2019) .................................... 2
Maxwell v. Dow, 176 U.S. 581 (1900) ........................................... 26
Miller v. Alabama, 567 U.S. 460 (2012) ......................................... 20
Patton v. United States, 281 U.S. 276 (1930) ................................. 26
Pennington v. State, 397 So. 3d 1055 (Fla. 4th DCA 2024) .............. 1
Powers v. Ohio, 499 U.S. 400 (1991) ............................................. 37
Ramos v. Louisiana, 590 U. S. 83 (2020)........................... 28, 29, 36
vi
Sandstrom v. Montana, 442 U.S. 510 (1979) ................................. 12
State v. Fleming, 61 So. 3d 399 (Fla. 2011) ..................................... 9
Thompson v. Utah, 170 U.S. 343 (1898) .................................. 25, 26
Williams v. Florida, 399 U.S. 78 (1970) ........................25, 27-33, 37
Woodson v. North Carolina, 428 U.S. 280 (1976) ........................... 23
Statutes
§ 775.082(9), Fla. Stat. ................................................................. 15
§ 775.084, Fla. Stat. ................................................................. 3, 15
§ 913.10, Fla. Stat. ......................................................................... 4
28 U.S.C. § 1257(a) ........................................................................ 2
Ch. 3010, § 6, Laws of Fla. (1877) ................................................ 34
Other Authorities
4 William Blackstone, Commentaries on the Laws of England, ch. 27
(“Of Trial and Conviction”) ......................................................... 25
Diamond et al., Achieving Diversity on the Jury: Jury Size and the
Peremptory Challenge, 6 J. of Empirical Legal Stud. 425 (Sept.
2009) ......................................................................................... 32
Higginbotham et al., Better by the Dozen: Bringing Back the TwelvePerson Civil Jury, 104 Judicature 47 (Summer 2020) .......... 32, 33
Jerrell H. Shofner, Reconstruction and Renewal, 1865–1877, in The
History of Florida 273 (Michael Gannon, ed., first paperback
edition 2018) ....................................................................... 35, 36
Jessica S. Henry, Death-in-Prison Sentences: Overutilized and
Underscrutinized, in LIFE WITHOUT PAROLE: AMERICA’S NEW DEATH
PENALTY? 76 (Charles J. Ogletree, Jr. & Austin Sarat eds., 2012) 21
John Gastil & Phillip J. Weiser, Jury Service as an Invitation to
Citizenship: Assessing the Civic Values of Institutionalized
Deliberation, 34 Pol'y Stud. J. 605 (2006) .................................. 37
Richard L. Hume, Membership of the Florida Constitutional
vii
Convention of 1868: A Case Study of Republican Factionalism in
the Reconstruction South, 51 Fla. Hist. Q. 1 (1972) ............... 35, 36
Shamena Anwar, et al., The Impact of Jury Race In Criminal Trials,
127 Q.J. Of Econ. 1017 (2012) .................................................. 32
Smith & Saks, The Case for Overturning Williams v. Florida and the
Six-Person Jury, 60 Fla. L. Rev. 441 (2008) ................................ 33
United States Courts, Juror Experiences, available at
https://www.uscourts.gov/services-forms/jury-service/learnabout-jury-service/juror-experiences ......................................... 37
William W. Berry III, The Mandate of Miller, 51 Am. Crim. L. Rev.
327, 347 (2014) ......................................................................... 23
Rules
Fla. R. Crim. P. 3.800(b)(2) ......................................................... 8, 9
Constitutional Provisions
Amend. VI, U.S. Const. ......................................................... passim
Amend. VIII, U.S. Const. ....................................................... passim
Amend. XIV, U.S. Const. ...................................................... passim
Art. I, § 17, Fla. Const. .......................................................... passim
Art. I, § 22, Fla. Const. .......................................................... passim
viii
IN THE SUPREME COURT OF THE UNITED STATES
_____________
NO.
RONALD CARL PENNINGTON, JR., PETITIONER,
V.
STATE OF FLORIDA, RESPONDENT.
_____________
ON PETITION FOR A WRIT OF CERTIORARI TO
THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA
_____________
PETITION FOR A WRIT OF CERTIORARI
_____________
Ronald Carl Pennington respectfully petitions for a writ of
certiorari to review the judgment of the Fourth District Court of
Appeal of Florida in this case.
OPINION BELOW
The decision of Florida’s Fourth District Court of Appeal is
reported as Pennington v. State, 397 So. 3d 1055 (Fla. 4th DCA
2024) (mem.). It is reprinted in the appendix. a1-2.
1
JURISDICTION
Florida’s Fourth District Court of Appeal issued its opinion on
November
27,
2024.
a1-2.
The
court
affirmed
Petitioner’s
convictions and sentences with the exception of vacating a grand
theft conviction which was reduced to a petit theft. a1. That
conviction and sentence are not a subject of this petition. The Court
did not write on any other issue. The Court denied Petitioner’s
motion for rehearing and certification on December 17, 2024. a3.
The Florida Supreme Court is “a court of limited jurisdiction,”
Mallet v. State, 280 So. 3d 1091, 1092 (Fla. 2019) (citation omitted),
Specifically, it has no jurisdiction to review district court of appeal
decisions entered without written opinion on the matter requested
to be reviewed. Jackson v. State, 926 So. 2d 1262, 1266 (Fla. 2006).
Hence, Petitioner could not seek review in that court. This Court
has jurisdiction under 28 U.S.C. § 1257(a).
CONSTITUTIONAL AND STATUTORY PROVISIONS
The Sixth Amendment provides: “In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, by an
impartial jury … .”
Section 1 of the Fourteenth Amendment of the United States
2
Constitution provides:
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal
protection of the laws.
Article I, section 22 of the Florida Constitution provides:
Trial by jury.—The right of trial by jury shall be secure to
all and remain inviolate. The qualifications and the
number of jurors, not fewer than six, shall be fixed by
law.
Section 775.082(9)(a)&(b), Florida Statutes, provides in relevant
part:
1. “Prison releasee reoffender” means any defendant who
commits, or attempts to commit:
…
p. Armed burglary;
q. Burglary of a dwelling or burglary of an occupied
structure; or
…;
within 3 years after being released from a state
correctional facility operated by the Department of
Corrections or a private vendor, a county detention
facility following incarceration for an offense for which
the sentence pronounced was a prison sentence, or a
correctional institution of another state, the District of
Columbia, the United States, any possession or territory
of the United States, or any foreign jurisdiction, following
incarceration for an offense for which the sentence is
punishable by more than 1 year in this state.
3
2. “Prison releasee reoffender” also means any defendant
who commits or attempts to commit any offense listed in
sub-subparagraphs (a)1.a.--r. while the defendant was
serving a prison sentence or on escape status from a
state correctional facility operated by the Department of
Corrections or a private vendor or while the defendant
was on escape status from a correctional institution of
another state, the District of Columbia, the United
States, any possession or territory of the United States,
or any foreign jurisdiction, following incarceration for an
offense for which the sentence is punishable by more
than 1 year in this state.
3. If the state attorney determines that a defendant is a
prison releasee reoffender as defined in subparagraph 1.,
the state attorney may seek to have the court sentence
the defendant as a prison releasee reoffender. Upon proof
from the state attorney that establishes by a preponderance of the evidence that a defendant is a prison releasee
reoffender as defined in this section, such defendant is
not eligible for sentencing under the sentencing
guidelines and must be sentenced as follows:
a. For a felony punishable by life, by a term of imprisonment for life;
b. For a felony of the first degree, by a term of imprisonment of 30 years;
c. For a felony of the second degree, by a term of
imprisonment of 15 years; and
d. For a felony of the third degree, by a term of imprisonment of 5 years.
(b) A person sentenced under paragraph (a) shall be
released only by expiration of sentence and shall not be
eligible for parole, control release, or any form of early
release. Any person sentenced under paragraph (a) must
serve 100 percent of the court-imposed sentence.
Section 913.10, Florida Statutes, provides:
Number of jurors.—Twelve persons shall constitute a jury
4
to try all capital cases, and six persons shall constitute a
jury to try all other criminal cases.
5
STATEMENT OF THE CASE
The State charged Petitioner by amended information with:
burglary with a firearm; grand theft of a firearm; grand theft;
criminal mischief; and felon in possession of a firearm R85-87. The
felon in possession charge was bifurcated from the other charges
T8. The felon in possession charge was later nolle prossed T640.
A jury trial was held.
In the State’s opening statement it explained to the jury the
evidence would show that Jupiter police were investigating a crime
“about to take place” T215. Surveillance had been prepared and
included officers, vehicles, and drones. The surveillance showed
Petitioner entered a house and exited with a backpack. Petitioner
was arrested as a passenger inside a vehicle. The driver was an
individual working with the Jupiter police department. Proceeds
from the burglary were found inside the vehicle.
Petitioner testified he committed the burglary. PJ is a
confidential informant (CI). PJ was arrested five days prior to the
burglary. PJ agreed to cooperate for his case to be dismissed. PJ
began blowing up Petitioner’s phone asking about him engaging in
a burglary. Petitioner indicated he had turned over a new leaf and
6
was not into burglaries anymore. Petitioner had no interest but PJ
continued and was calling more frequently. PJ was so forceful with
Petitioner that he felt he had no choice. The only way Petitioner
would be left alone is if he did the burglary. The CI put pressure on
Petitioner to do something he had no intention of doing.
The only participants in the burglary were Petitioner and the
CI. The CI did not testify so as to rebut Petitioner’s testimony.
The jury was instructed on the defense of entrapment. The
jury was also read an instruction on principals as follows:
If the defendant helped another person or persons
commit a crime, the defendant is a principal and must be
treated as if he had done all the things the other person
or persons did if:
number one, the defendant had a conscious intent that
the criminal act be done; and
number two, the defendant did some act or said some
word which was intended to and which did incite, cause,
encourage, assist or advise the other person or persons
to actually commit the crime.
a5-6,T602-603.
The defense had objected to the instruction. a4.
The State argued the instruction applied because Petitioner
was claiming he was forced to do the burglary. a4, T522.
Petitioner was convicted by a six-member jury of burglary with
7
a firearm; grand theft of a firearm; grand theft; and criminal
mischief as charged. a11, R140-142, 144-145.
Petitioner was sentenced to life in prison as a prison release
reoffender (PRR) for the burglary conviction. A14, R146,151.
Petitioner timely filed a notice of appeal.
While his direct appeal was pending in the Fourth District
Court of Appeal, Petitioner moved to correct his sentence under
Florida Criminal Rule 3.800(b)(2). He argued that the Prison
Releasee Reoffender statute is unconstitutional in violation of the
Jury and Due Process Clauses of the federal constitutions and also
argued that a mandatory life sentence for a non-homicide violated
the United States Constitution. The trial court denied the motion.
Petitioner then filed his brief in the appellate court-the Fourth
District Court of Appeal. Among other issues, he argued that: it was
error to overrule his objection to a principal instruction and giving
the instruction violated his rights under the Sixth and Fourteenth
Amendments a4-9; he was denied his right to a twelve-member jury
under the Sixth Amendment a10-13. R88-92, T4, 262 ; his prison
release reoffender sentences violate the Sixth and Fourteenth
Amendments and the statute was unconstitutional. a14-20; and a
8
mandatory life sentence for a non-homicide offense violates the
Cruel and Unusual Punishment Clauses. a21-27.
The
sentencing
issues
have
been
recognized
as
being
preserved by the filing of a motion under Florida Rule of Criminal
Procedure 3.800(b)(2) by the Fourth District Court of Appeal.
Hollingsworth v. State, 293 So. 3d 1049, 1051 (Fla. 4th DCA 2020)
(“The trial court was wrong in its criticism of appellant's attorney for
filing a motion pursuant to rule 3.800(b)(2). This was the proper
method to raise the issue of an Apprendi violation. See State v.
Fleming, 61 So. 3d 399 (Fla. 2011) (Apprendi claim raised in a rule
3.800(b)(2) motion)”). In addition, the issues would be subject to
review under Florida’s fundamental error doctrine.
The court affirmed Petitioner’s convictions and sentences with
the exception of vacating a grand theft conviction which was
reduced to a petit theft. a1. That conviction and sentence are not a
subject of this petition. Petitioner filed a motion for rehearing and
certification on December 5, 2024. Subsequently, the appellate
court denied Petitioner’s motion for rehearing and for certification to
the state supreme court. a2.
9
REASONS FOR GRANTING THE PETITION
I. INSTRUCTING THE JURY THAT THE DEFENDANT
COULD BE FOUND GUILTY ON A THEORY THAT HE
AIDED AND ABETTED A STATE AGENT EFFECTIVELY
NEGATED HIS ENTRAPMENT DEFENSE AND VIOLATED
HIS CONSTITUTIONAL RIGHTS UNDER THE SIXTH AND
FOURTEENTH AMENDMENTS.
Mr. Pennington admitted in his trial testimony he committed
the burglary but claimed he was entrapped by a State agent
(confidential informant) who induced and coerced him into
committing the burglary.
The state agent was a confidential
informant who was performing substantial assistance for police in
exchange
for
dismissal
of his pending case. Although Mr.
Pennington had committed burglaries in the past, he testified he
had changed and no longer wanted to commit burglaries.
The only participants in the burglary were Mr. Pennington and
the State agent.
The trial court read an entrapment instruction to the jury.
Over defense objection, the trial court read a principal instruction
which states a defendant is guilty and responsible for the crime of
another if he helped the crime be committed and intended for the
crime to occur.
10
Where Petitioner’s defense was entrapment, the instruction on
being guilty based on aiding and abetting the State agent infringes
on or negates his defense of entrapment.
An instruction to the jury which acts to negate, mislead, or
infringe upon a valid legal defense violates the due process clause of
the Fourteenth Amendment and the right to a jury trial under the
Sixth and Fourteenth Amendments. (a8-a9).
There are no cases on point which hold that giving an
instruction that one is guilty by aiding and abetting a State agent
violates these rights – especially where the defense is that the
interaction with the officer was entrapment.
However, Cheek v. State, 498 U.S. 192 (1991) supports such a
claim of a Sixth Amendment violation. In Cheek the defendant could
be found guilty of violating 16 U.S.C. § 7203 if willfully attempting
to evade income taxes. His defense was he had in good faith
believed he did not have to pay taxes. His jury was instructed: “an
honest but unreasonable belief is not a defense and does not negate
willfulness.” This Court recognized that an honest belief that taxes
were not owed under the act is a defense and the defense did not
have to be objectively reasonable. This Court held the instruction
11
was in error and “ forbidding the jury to consider evidence that
might negate willfulness would raise a serious question under the
Sixth Amendment's jury trial provision” Id. at 203.
This Court has also recognized that a jury instruction which
could negate or mislead as to a defense position by shifting the
burden of proof violates due process. See Sandstrom v. Montana,
442 U.S. 510 (1979)(instruction presuming intent from voluntary
actions violates due process as it could be interpreted as shifting
burden of proof to the defendant); Francis v. Franklin, 471 U.S. 307
(1985).
In this case, the danger of the principal instruction being
interpreted to convict Petitioner due to his interaction with the State
agent violates due process. It is particularly dangerous where in the
trial court the State’s reason to justify giving the principal
instruction was because Petitioner was claiming he was forced to do
the burglary a4, T522. Thus, in essence the State overtly conceded
the purpose of the principal instruction was to negate the
entrapment defense.
Any claim the jury would ignore and not be misled by the
principal instruction is contrary to what this Court stated in Francis
12
v.
Franklin,
471
U.S.
307
(1985)
regarding
contradictory
instructions:
Even if a reasonable juror could have understood the
prohibition of presuming “criminal intention” as applying
to the element of intent, that instruction did no more
than contradict the instruction in the immediately
preceding sentence. A reasonable juror could easily have
resolved the contradiction in the instruction by choosing
to abide by the mandatory presumption and ignore the
prohibition of presumption. Nothing in these specific
sentences or in the charge as a whole makes clear to the
jury that one of these contradictory instructions carries
more weight than the other. Language that merely
contradicts and does not explain a constitutionally infirm
instruction will not suffice to absolve the infirmity. A
reviewing court has no way of knowing which of the two
irreconcilable instructions the jurors applied in reaching
their verdict.8 Had the instruction “[a] person . . .is
presumed to intend the natural and probable consequences of his acts,” App. 8a–9a, been followed by the
instruction “this means that a person will not be
presumed to act with criminal intention but the jury may
find criminal intention upon consideration of all
circumstances connected with the act for which the
accused is prosecuted,” a somewhat stronger argument
might be made that a reasonable juror could not have
understood the challenged language as shifting the
burden
of
persuasion
to
the
defendant.
Cf. Sandstrom, 442 U.S., at 517, 99 S.Ct., at
2455 (“[G]iven the lack of qualifying instructions as to the
legal effect of the presumption, we cannot discount the
possibility that the jury may have interpreted the
instruction” in an unconstitutional manner).
471 U.S. at 322-324. As in Francis, in this case the entrapment and
principal instructions were contradictory in effect and there was no
13
other instruction to limit or explain how the instructions could
interplay. Actually, there was no legitimate purpose of the principal
instruction in this case – Petitioner cannot aid and abet a State
agent in committing a crime and the State agent was not on trial as
a defendant. Up to this point in time, courts have not encouraged
law enforcement to go out and create crimes and to reach for the
assistance of citizens to enable the arrest and conviction of citizens
for that crime based on an aiding and abetting theory.
The unwarranted principal instruction could be misapplied to
counteract a jury belief that even if Petitioner was forced or
entrapped to commit the burglary a guilty verdict would be justified
under a principal theory. As such, giving the instruction under
these circumstances deprived Petitioner of his Sixth and Fourteenth
Amendment rights.
14
II. FLORIDA’S PRISON RELEASEE REOFFENDER
STATUTE IS UNCONSTITUTIONAL.
Florida’s Prison Releasee Reoffender (PRR) statute provides for
enhanced punishments when the judge, at a nonjury proceeding,
determines, by a preponderance of the evidence, a variety of facts
regarding the defendant’s prior criminal record including the date of
the defendant’s release from incarceration. § 775.082(9) Fla. Stat.
The statute requires the imposition of the statutory maximum
sentence and that 100% of the sentence be served.
This statutory procedure and Petitioner’s resulting sentence
are unconstitutional under the Jury and Due Process Clauses. U.S.
Const. amend. VI, XIV.
A
straightforward
application
of
this
Court’s
decisions,
including but not limited to Erlinger v. United States, 602 U.S. 821
(2024),
compels
the
conclusion
that
the
PRR
statute
is
unconstitutional on its face. The PRR statute requires the
imposition of a minimum mandatory sentence based not only on a
fact found by a trial judge but also on a mere preponderance of the
evidence. See Fla. Stat. § 775.082(9). Since it provides the basis for
Petitioner’s sentences, those sentences cannot stand.
15
Also,
despite
the
general
rule
forbidding
a
sentence
enhancement based on judicial fact-finding, the Court held in the 54 decision of Almendarez-Torres v. United States, 523 U.S. 224
(1998), that a court may enhance a sentence based on a judge’s
finding of a prior conviction authorizing the enhancement.
The Court recently cast doubt on the correctness and viability
of Almendarez-Torres in Erlinger v. United States, 602 U.S. 821,837839 (2024).
For the reasons set out in Erlinger, there is no reason to allow
states to continue to impose enhanced sentences based on
unconstitutional procedures such as Florida’s prison release
reoffender statute.
Further, regardless of the viability of Almendarez-Torres’s, the
Florida law and procedure are plainly unconstitutional under
Erlinger and should not be allowed to stand. Here, the court went
beyond finding the simple fact that Petitioner had been convicted of
certain crimes. It made the additional fact findings required by the
statute, including when he was convicted and when he was released
from prison.
In this case the State conceded, in its response to the motion
16
for rehearing, that the “prison releasee reoffender release-date
findings must be made by a jury” but argued the error was
harmless because although the jury did not make the required
findings, there was evidence as to the date of the offense and
Petitioner testified at trial as to his release date.
A harmless error analysis is not warranted. The only authority
that permits the PRR sentence is the PRR statute. Because the PRR
statute is unconstitutional in violation of the Sixth Amendment—
there is no authority to impose the PRR sentence. Thus, imposition
of an unauthorized sentence could not be harmless. The State’s
claim is akin to convicting one for whistling where there is no valid
statute outlawing whistling.
Also, having a court review facts to decide whether another
court’s decision of facts in violation of the right to a jury is harmless
is duplicating the same error. To hypothesize how a jury would
decide a fact without the jury ever being asked to decide that fact is
simply exacerbating the Sixth Amendment error.
Finally,
this
case
particularly
shows
the
chaos
of
hypothesizing what a jury would determine. On appeal the State
essentially posited that the jury would simply find Petitioner
17
credible. However, the prosecutor’s position below was Petitioner
was not credible and the jury should not believe Petitioner’s
testimony. If the jury believed Petitioner, he would have been found
not guilty due to entrapment (except maybe for the problem in
question1). Any claim that the error should be found harmless
based on the testimony of someone who the State argued had no
credibility does not hold water.
Accordingly, the sentences should be reversed and remanded
to the lower court for resentencing without use of the invalid
statute.
18
III. A MANDATORY LIFE SENTENCE FOR A NONHOMICIDE OFFENSE VIOLATES THE CRUEL AND
UNUSUAL PUNISHMENT CLAUSES.
The trial court sentenced Petitioner to life in prison for
burglary with a firearm stating it was doing so because it had no
other choice a21, T635.
A mandatory life sentence for a non-homicide offense violates
the Cruel and Unusual Punishment Clauses. This issue was raised
in the motion to correct sentence R282-291, which the trial court
denied R 293-331.
The trial court imposed a mandatory sentence of life
imprisonment or death-in-custody. Mandatory life sentences for
non-homicide offenses violate the Cruel and Unusual Punishment
Clauses of the United States and Florida Constitutions.
At the outset, Petitioner acknowledges that he has a steep
precedential hill to climb. In Harmelin v. Michigan, 501 U.S. 957,
994-96 (1991), the Court declined to extend the individualizedsentencing
requirement
of
capital
cases
to
mandatory
life
sentences. The Court relied on its death-is-different doctrine,
limiting the application of its individualized-sentencing cases to
capital offenses. Id.
19
But Harmelin was decided 27 years ago, and the Court’s
decisions in Graham v. Florida, 560 U.S. 48 (2010), and Miller v.
Alabama, 567 U.S. 460 (2012), have eroded the distinction between
death sentences and death-in-custody sentences.
In Graham, the Court observed that “life without parole
sentences share some characteristics with death sentences that are
shared by no other sentences.” Graham, 560 U.S. at 69.
In Miller, the Court said that “[i]mprisoning an offender until
he dies alters the remainder of his life by a forfeiture that is
irrevocable” and reflects “an irrevocable judgment about an
offender’s value and place in society.” Miller, 567 U.S. at 473-475
(internal quotation marks omitted). The Court said a life sentence is
a “denial of hope; it means that good behavior and character
improvement are immaterial; it means that whatever the future
might hold in store for the mind and spirit of the convict, he will
remain in prison for the rest of his days.” Graham, 560 U.S. at 70
(internal
quotation
marks
and
bracket
omitted).
As
commentator said, life sentences:
communicate to offenders that they have forfeited their
right to ever walk again among society. They have been
forever banished. No act by the incarcerated individual
20
one
can change that assessment—neither the number of
degrees attained, books written, or prison programs
developed nor the model behavior demonstrated can
impact the inevitable outcome of death in prison. Even in
the face of great internal and genuine transformation,
these offenders will be left to literally molder in prison
until death.
Jessica S. Henry, Death-in-Prison Sentences: Overutilized and
Underscrutinized, in LIFE WITHOUT PAROLE: AMERICA’S NEW DEATH
PENALTY? 76 (Charles J. Ogletree, Jr. & Austin Sarat eds., 2012); see
also id at 73 (“John Stuart Mill perceived life imprisonment as ‘living
in a tomb, there to linger out what may be a long life … without any
of its alleviation or rewards—debarred from all pleasant sights and
sounds, and cut off from earthly hope.’”).
And even in Harmelin, Justice Kennedy was uneasy about
what the Court was doing: “A penalty as severe and unforgiving as
the one imposed here would make this a most difficult and
troubling case for any judicial officer.” Harmelin, 501 U.S. at 1008
(Kennedy, J., concurring).
Justice Sotomayor, in her statement respecting the denial of
certiorari in Campbell v. Ohio, 138 S. Ct. 1059 (2018), wrote
separately recognizing “ a statute that shields from judicial scrutiny
sentences of life without the possibility of parole raises serious
21
constitutional concerns.” Id. And that: “Trial judges making the
determination whether a defendant should be condemned to die in
prison have a grave responsibility, and the fact that Ohio has set up
a scheme under which those determinations ‘cannot be reviewed’ is
deeply concerning.” Id.
Petitioner asserts that life sentences in non-homicide cases
may only be imposed after an individualized sentencing hearing
where defendants can introduce mitigating evidence and attempt to
prove that their lives are not irredeemable.
To be sure, Graham and Miller applied to juveniles, but neither
case forecloses scrutiny of adult life sentences, and both cases
suggest that life sentences are, in many ways, like death sentences.
Further, adults as well as juveniles should be provided an
opportunity to make their best arguments why they should not die
in prison. As one commentator noted:
While the propensity of adult offenders to possess
characteristics suggesting a possibility of rehabilitation
and redemption may be less than that of juvenile
offenders, it does not mean it is non-existent. To the
contrary, there is a strong likelihood that some offenders
facing a death-in-custody sentence can make a
persuasive case that the state should not condemn them
to die in prison. But mandatory sentences deny offenders
this opportunity.
22
Put another way, adults are no less human than
juveniles are. And they possess no less dignity. Indeed, it
would be odd to conclude that a consequence of aging is
that one’s life automatically loses its purpose and
meaning. While this may be true for some, it seems
misguided to suggest that all adult individuals who
commit a certain category of crime must receive a deathin-custody sentence, without any careful consideration of
the details of their crime, their personal characteristics,
and any mitigating evidence they might be able to offer.
William W. Berry III, The Mandate of Miller, 51 Am. Crim. L. Rev.
327, 347 (2014).
“[I]ndividual culpability is not always measured by the
category of the crime committed.” Woodson v. North Carolina, 428
U.S. 280, 298 (1976). “[J]ustice generally requires consideration of
more than the particular acts by which the crime was committed
and that there be taken into account the circumstances of the
offense together with the character and propensities of the
offender.” Id. at 304. Foreclosing an offender’s ability to prove why
his life still has value is cruel and unusual.
In this case, at sentencing Petitioner did not attempt to prove
why his life still had value and that it could be further restored.
This is because the life sentence was mandatory and there would be
no parole or early release. The trial court imposed the sentence
23
because there was no other choice a21,T635. There was a potential
basis to believe Petitioner had a future. True, he had a terrible prior
non-violent record. During trial he admitted so, but noted it was
due to his abuse of drugs and he had turned over a new leaf. This
was only revealed because of his testimony he was not predisposed
to commit this particular burglary. The PRR mandatory life
sentence dispensed with an individualized sentencing.
Pennington’s mandatory life sentence violates the Cruel and
Unusual Punishment Clauses of the Eighth Amendment to the
United States Constitution and Article I, Section 17, of the Florida
Constitution.
24
IV. THE REASONING OF WILLIAMS v. FLORIDA HAS
BEEN REJECTED, AND THE CASE SHOULD BE
OVERRULED.
In Thompson v. Utah, 170 U.S. 343 (1898), the Court
considered “whether the jury referred to in the original constitution
and in the sixth amendment is a jury constituted, as it was at
common law, of twelve persons, neither more nor less,” and
concluded
that
“[t]his
question
must
be
answered
in
the
affirmative.” Id. at 349. It noted that since the time of Magna Carta,
the word “jury” had been understood to mean a body of twelve. Id.
at 349–50. Because that understanding had been accepted since
1215, the Court reasoned, “[i]t must” have been “that the word
‘jury’ ” in the Sixth Amendment was “placed in the constitution of
the United States with reference to [that] meaning affixed to [it].”
Id. at 350.
In addition to the citations as to this point in Thompson, one
may note that Blackstone indicated that the right to a jury of twelve
is even older, and more firmly established, than the unqualified
right
to
counsel
in
criminal
cases.
4
William
Blackstone,
Commentaries on the Laws of England, ch. 27 (“Of Trial and
Conviction”). Blackstone traced the right back to the ancient feudal
25
system of trial by “a tribunal composed of twelve good men and
true,” and wrote that “it is the most transcendent privilege which
any subject can be enjoy or wish for, that he cannot be affected in
his property, his liberty or his person, but by the unanimous
consent of twelve of his neighbours and equals.” 3 Blackstone, ch.
23 (“Of the Trial by Jury”).
After Thompson, the Court continued to cite the basic principle
that the Sixth Amendment requires a twelve-person jury in criminal
cases for another seventy years. In 1900, the Court explained that
“there [could] be no doubt” “[t]hat a jury composed, as at common
law, of twelve jurors was intended by the Sixth Amendment to the
Federal Constitution.” Maxwell v. Dow, 176 U.S. 581, 586 (1900).
Thirty years later, this Court reiterated that it was “not open to
question” that “the phrase ‘trial by jury’ ” in the Constitution
incorporated juries’ “essential elements” as “they were recognized in
this country and England,” including the requirement that they
“consist of twelve men, neither more nor less.” Patton v. United
States, 281 U.S. 276, 288 (1930). And as recently as 1968, the
Court remarked that “by the time our Constitution was written, jury
trial in criminal cases had been in existence for several centuries
26
and carried impressive credentials traced by many to Magna Carta,”
such as the necessary inclusion of twelve members. Duncan v.
Louisiana, 391 U.S. 145, 151–152 (1968).
In Williams v. Florida, 399 U.S. 78 (1970), however, the Court
retreated from this line of precedent, holding that trial by a jury of
six does not violate the Sixth Amendment.
Williams recognized that the Framers “may well” have had “the
usual expectation” in drafting the Sixth Amendment “that the jury
would consist of 12” members. Id., 399 U.S. at 98–99. But it
concluded that such “purely historical considerations” were not
dispositive. Id. at 99. Rather, it focused on the “function” that the
jury plays in the Constitution, concluding that the “essential
feature” of a jury is it leaves justice to the “commonsense judgment
of a group of laymen” and thus allows “guilt or innocence” to be
determined
via
“community
participation
and
[with]
shared
responsibility.” Id. at 100–01. It wrote that “currently available
evidence [and] theory” suggested that function could just as easily
be performed with six jurors as with twelve. Id. at 101–102 & n.48;
cf. Burch v. Louisiana, 441 U.S. 130, 137 (1979) (acknowledging
that Williams and its progeny “departed from the strictly historical
27
requirements of jury trial”).
Petitioner submits that Williams is contrary to the history and
precedents discussed above, and cannot be squared with the
subsequent ruling in Ramos v. Louisiana, 590 U. S. 83 (2020), that
the Sixth Amendment’s “trial by an impartial jury” requirement
encompasses what the term “meant at the Sixth Amendment’s
adoption,” id. at 90. That term meant trial by a jury of twelve whose
verdict must be unanimous. As the Court noted in Ramos,
Blackstone recognized that under the common law, “no person
could be found guilty of a serious crime unless ‘the truth of every
accusation . . . should . . . be confirmed by the unanimous suffrage
of twelve of his equals and neighbors[.]” Ibid. (emphasis added). “A
‘verdict, taken from eleven, was no verdict’ at all.” Ibid.
Ramos held that the Sixth Amendment requires a unanimous
verdict to convict a person of a serious offense. In reaching that
conclusion, it overturned Apodaca v. Oregon, 406 U.S. 404 (1972), a
decision that it faulted for “subject[ing] the ancient guarantee of a
unanimous jury verdict to its own functionalist assessment.” 509
U.S. at 100.
The reasoning of Ramos undermines the reasoning on which
28
Williams rests. Ramos rejected the same kind of “cost-benefit
analysis” undertaken in Williams, observing that it is not for the
Court to “distinguish between the historic features of common law
jury trials that (we think) serve ‘important enough functions to
migrate silently into the Sixth Amendment and those that don’t.’”
590 U.S. at 98. The Court wrote that the Sixth Amendment right to
a jury trial must be restored to its original meaning, which included
the right to jury unanimity:
Our real objection here isn’t that the Apodaca plurality’s
cost-benefit analysis was too skimpy. The deeper problem
is that the plurality subjected the ancient guarantee of a
unanimous jury verdict to its own functionalist
assessment in the first place. And Louisiana asks us to
repeat the error today, just replacing Apodaca’s
functionalist assessment with our own updated version.
All this overlooks the fact that, at the time of the Sixth
Amendment’s adoption, the right to trial by jury included
a right to a unanimous verdict. When the American
people chose to enshrine that right in the Constitution,
they weren’t suggesting fruitful topics for future costbenefit analyses. They were seeking to ensure that their
children’s children would enjoy the same hard-won
liberty they enjoyed. As judges, it is not our role to
reassess whether the right to a unanimous jury is
“important enough” to retain. With humility, we must
accept that this right may serve purposes evading our
current notice. We are entrusted to preserve and protect
that liberty, not balance it away aided by no more than
social statistics.
Ramos, 590 U.S. at 100 (emphasis in original; footnote omitted).
29
The same reasoning applies to the historical right to a jury of
twelve: When the People enshrined the jury trial right in the
Constitution, they did not attach a rider that future judges could
adapt it based on latter-day social science views.
Further, even if one were to accept the functionalist logic of
Williams — that the Sixth Amendment is subject to reinterpretation
on the basis of social science — it invites, nay demands, that it be
periodically revisted to determine whether the social science holds
up. And here we encounter a serious problem: it was based on
research that was out of date shortly after the opinion issued.
Williams “f[ou]nd little reason to think” that the goals of the
jury guarantee, which included providing “a fair possibility for
obtaining a representative[] cross-section of the community,” were
“in any meaningful sense less likely to be achieved when the jury
numbers six, than when it numbers 12.” Id. 399 U.S. at 100. It
theorized that “in practice the difference between the 12-man and
the six-man jury in terms of the cross-section of the community
represented seems likely to be negligible.” Id. at 102.
Since Williams, that determination has proven incorrect. This
Court acknowledged as much just eight years later in Ballew v.
30
Georgia, 435 U.S. 223 (1978), when it concluded that the Sixth
Amendment barred the use of a five-person jury. Although Ballew
did not overturn Williams, it observed that empirical studies
conducted in the intervening years highlighted several problems
with its assumptions. For example, Ballew noted that more recent
research showed that (1) “smaller juries are less likely to foster
effective group deliberation,” id. at 233, (2) smaller juries may be
less accurate and cause “increasing inconsistency” in verdict
results, id. at 234, (3) the chance for hung juries decreases with
smaller juries, disproportionally harming the defendant, id. at 236;
and (4) decreasing jury sizes “foretell[] problems … for the
representation of minority groups in the community,” undermining
a jury’s likelihood of being “truly representative of the community,”
id. at 236–37. Moreover, the Ballew Court “admit[ted]” that it “d[id]
not pretend to discern a clear line between six members and five,”
effectively acknowledging that the studies it relied on also cast
doubt on the effectiveness of the six-member jury. Id. at 239; see
also id. at 245–46 (Powell, J.) (agreeing that five-member juries are
unconstitutional, while acknowledging that “the line between fiveand six-member juries is difficult to justify”).
31
Post-Ballew research has further undermined Williams. As
already noted, Williams itself identified the “function” of the Sixth
Amendment as leaving justice to the “commonsense judgment of a
group of laymen” and thus allowing “guilt or innocence” to be
determined
via
“community
participation
and
[with]
shared
responsibility.” 399 U.S. at 100–01. That function is thwarted by
reducing the number of jurors to six. Smaller juries are perforce
less representative of the community, and they are less consistent
than larger juries. See, e.g., Shamena Anwar, et al., The Impact of
Jury Race In Criminal Trials, 127 Q.J. Of Econ. 1017, 1049 (2012)
(finding that “increasing the number of jurors on the seated jury
would substantially reduce the variability of the trial outcomes,
increase black representation in the jury pool and on seated juries,
and make trial outcomes more equal for white and black
defendants”); Diamond et al., Achieving Diversity on the Jury: Jury
Size and the Peremptory Challenge, 6 J. of Empirical Legal Stud.
425, 427 (Sept. 2009) (“reducing jury size inevitably has a drastic
effect on the representation of minority group members on the
jury”); Higginbotham et al., Better by the Dozen: Bringing Back the
Twelve-Person Civil Jury, 104 Judicature 47, 52 (Summer 2020)
32
(“Larger juries are also more inclusive and more representative of
the community. … In reality, cutting the size of the jury
dramatically increases the chance of excluding minorities.”).
Other important considerations also weigh in favor of the
twelve-member jury. Twelve-member juries deliberate longer, recall
evidence
better,
and
rely
less
on
irrelevant
factors
during
deliberation. See Smith & Saks, The Case for Overturning Williams
v. Florida and the Six-Person Jury, 60 Fla. L. Rev. 441, 465 (2008).
Minority views are also more likely to be thoroughly expressed
in a larger jury, as “having a large minority helps make the minority
subgroup more influential,” and, unsurprisingly, “the chance of
minority members having allies is greater on a twelve-person jury.”
Smith & Saks, 60 Fla. L. Rev. at 466. Finally, larger juries deliver
more predictable results. In the civil context, for example, “[s]ixperson juries are four times more likely to return extremely high or
low damage awards compared to the average.” Higginbotham et al.,
104 Judicature at 52.
Importantly, the history of Florida’s rule can be traced to the
Jim Crow era. Justice Gorsuch has observed that “[d]uring the Jim
Crow era, some States restricted the size of juries and abandoned
33
the demand for a unanimous verdict as part of a deliberate and
systematic effort to suppress minority voices in public affairs.”
Khorrami v. Arizona, 143 S. Ct. 22, 27 (2022) (Gorsuch, J.,
dissenting from denial of certiorari) (citations omitted). He noted,
however, that Arizona’s law was likely motivated by costs not race.
Id. But Florida’s jury of six did arise in that Jim Crow era of a
“deliberate and systematic effort to suppress minority voices in
public affairs.” Id. The historical background is as follows:
In 1875, the Jury Clause of the 1868 constitution was
amended to provide that the number of jurors “for the trial of
causes in any court may be fixed by law.” See Florida Fertilizer &
Mfg. Co. v. Boswell, 34 So. 241, 241 (Fla. 1903). The common law
rule of a jury of twelve was still kept in Florida while federal troops
remained in the state. There was no provision for a jury of less than
twelve until the Legislature enacted a provision specifying a jury of
six in Chapter 3010, section 6, Laws of Florida (1877). See Gibson v.
State, 16 Fla. 291, 297–98 (1877); Florida Fertilizer, 34 So. at 241.
The Florida Legislature enacted chapter 3010 with the jury-ofsix provision on February 17, 1877. Gibson, 16 Fla. 294. This was
less than a month after the last federal troops were withdrawn from
34
Florida in January 1877. See Jerrell H. Shofner, Reconstruction and
Renewal, 1865–1877, in The History of Florida 273 (Michael
Gannon, ed., first paperback edition 2018) (“there were [no federal
troops] in Florida after 23 January 1877”).
The jury-of-six thus first saw light at the birth of the Jim Crow
era as former Confederates regained power in southern states and
state prosecutors made a concerted effort to prevent blacks from
serving on juries.
On its face the 1868 constitution extended the franchise to
black men. But the historical context shows that that it was part of
the overall resistance to Reconstruction efforts to protect the rights
of black citizens. The constitution was the product of a remarkable
series of events including a coup in which leaders of the white
southern (or native) faction took possession of the assembly hall in
the middle of the night, excluding Radical Republican delegates
from the proceedings. See Richard L. Hume, Membership of the
Florida Constitutional Convention of 1868: A Case Study of
Republican Factionalism in the Reconstruction South, 51 Fla. Hist. Q.
1, 5–6 (1972); Shofner at 266. A reconciliation was effected as the
“outside” whites “united with the majority of the body’s native
35
whites to frame a constitution designed to continue white
dominance.” Hume at 15.
The purpose of the resulting constitution was spelled out by
Harrison Reed, a leader of the prevailing faction and the first
governor elected under the 1868 constitution, who wrote to Senator
Yulee that the new constitution was constructed to bar blacks from
legislative office: “Under our Constitution the Judiciary & State
officers will be appointed & the apportionment will prevent a negro
legislature.” Hume, 15–16. See also Shofner 266.
Smaller juries and non-unanimous verdicts were part of a Jim
Crow era effort “to suppress minority voices in public affairs.”
Khorrami v. Arizona, 143 S. Ct. 22, 27 (2022) (Gorsuch, J.,
dissenting from denial of certiorari); see also Ramos, 590 U.S. at
126–27 (Kavanaugh, J., concurring) (non-unanimity was enacted
“as one pillar of a comprehensive and brutal program of racist Jim
Crow measures against African-Americans, especially in voting and
jury service.”). The history of Florida’s jury of six arises from the
same historical context.
And this history casts into relief another negative consequence
of having small juries: it denies a great number of citizens the
36
“duty, honor, and privilege of jury service.” Powers v. Ohio, 499 U.S.
400, 415 (1991). Many consider jury service an “amazing and
powerful opportunity and experience—one that will strengthen your
sense of humanity and your own responsibility.” United States
Courts, Juror Experiences.1 Jury service, like civic deliberation in
general, “not only resolves conflicts in a way that yields improved
policy outcomes, it also transforms the participants in the
deliberation
in important
ways—altering
how
they
think
of
themselves and their fellow citizens.” John Gastil & Phillip J.
Weiser, Jury Service as an Invitation to Citizenship: Assessing the
Civic Values of Institutionalized Deliberation, 34 Pol’y Stud. J. 605,
606 (2006).
In view of the foregoing, this Court should grant the petition,
recede from Williams, restore the ancient right to a jury of twelve
and reverse Petitioner’s conviction.
1 Available at: https://www.uscourts.gov/services-forms/jury-
service/learn-about-jury-service/juror-experiences
37
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
DANIEL EISINGER
Public Defender
JEFFREY L. ANDERSON *
Assistant Public Defender
Counsel of Record
Office of the Public Defender
Fifteenth Judicial Circuit of Florida
421Third Street
West Palm Beach, FL 33401
(561) 355–7600
gcaldwel@pd15.org
jcwalsh@pd15.org
appeals@pd15.org
* Member of the United States Supreme Court Bar
38
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.