           IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FIFTH DISTRICT

                                                   NOT FINAL UNTIL TIME EXPIRES TO
                                                   FILE MOTION FOR REHEARING AND
                                                   DISPOSITION THEREOF IF FILED


AVERY CORBITT,

              Petitioner,

 v.                                                       Case No. 5D16-1766

STATE OF FLORIDA,

              Respondent.

________________________________

Opinion filed November 10, 2016

Petition Alleging Ineffectiveness of
Appellate Counsel,
A Case of Original Jurisdiction.

Avery Corbitt, Lake City, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and L. Charlene Matthews,
Assistant Attorney General, Daytona
Beach, for Appellee.


SAWAYA, J.

       The issue presented is whether statements the trial court made during sentencing

that Avery Corbitt failed to express remorse or take responsibility for his crimes are

constitutionally impermissible. 1 In his Petition for Writ of Habeas Corpus, Corbitt alleges




       1  Corbitt also alleges that his appellate counsel was ineffective for failing to raise
in the prior appeal his trial counsel’s failure to request a hearing on his motion to withdraw
that the statements constitute fundamental error because they violate his constitutional

rights to remain silent and to a jury trial. He further alleges that his appellate counsel was

ineffective for failing to raise this issue in his prior appeal. Corbitt wants this court to

vacate his sentence and remand this case for resentencing by a different judge. We

believe that those statements are not impermissible and that Corbitt’s petition should be

denied for the following reasons: 1) the statements were made in the context of the trial

court attempting to find some level of mitigation for the sentence; and 2) Corbitt entered

a plea, waived his rights to a jury trial and to remain silent, and admitted under oath that

he committed the crimes and shot one of the officers. These reasons will be addressed

in the order presented, after the facts and procedural history of the case are discussed.

       Corbitt was charged with several felony offenses stemming from his involvement

in a drug deal with two undercover officers. Instead of completing the drug transaction,

Corbitt and his accomplice attempted to rob the undercover officers. The officers resisted,

and a gunfight ensued. Corbitt shot one of the officers, and the officers shot and killed

the accomplice. In the midst of his trial, Corbitt decided to enter a plea to two of the

charges (second-degree felony murder, which involved the death of the accomplice, and

attempted first-degree murder). The plea agreement provided that the State would waive

the twenty-five year minimum mandatory sentence applicable to those charges and drop

the remaining charges. The agreement also provided that, in the event Corbitt filed a

motion to withdraw his plea prior to sentencing, the standard applicable to post-sentence

motions would apply. The sentencing range was 16.85 years to life in prison.




plea and a hearing on his counsel’s request to withdraw from further representation of
Corbitt. As to this claim, we deny it without further discussion.


                                              2
       Corbitt was placed under oath by the trial judge, and a thorough plea colloquy was

conducted. A factual basis was established for the plea, and Corbitt told the trial court

that he understood the constitutional rights he was waiving, including the right to trial by

jury and the right to remain silent. Corbitt admitted his involvement in the crimes and

specifically told the trial court under oath that he shot one of the officers. Corbitt further

states in his petition that he admitted shooting the officer. During the colloquy, Corbitt

was twice advised by the trial court that the maximum sentence he could receive was life,

and both times Corbitt told the court that he understood. Corbitt also stated that he

understood the standard that would apply if he filed a motion to withdraw his plea. The

trial court accepted the plea, finding that Corbitt “intelligently, freely, and voluntarily

waived his rights in entering the plea, and that there is a factual basis for the plea.”

Sentencing was set for another date.

       On that date, the trial court advised Corbitt’s attorney and the State that he had

received three handwritten letters from Corbitt. The motion to withdraw plea referred to

in Corbitt’s petition consists of these letters. Corbitt’s attorney, who was representing

Corbitt at the time the letters were sent, stated that he was not sent copies of the letters

and refused to adopt them as a motion to withdraw Corbitt’s plea. 2 The letters reveal that

they are a plea by Corbitt for the minimum sentence of 16.85 years and an attempt to

persuade the trial court why a life sentence should not be imposed. Corbitt makes

allegations that once again admit his involvement in the crimes but makes excuses for



       2 The letters are not in the record of this appeal. The State, in its Response,
requests that judicial notice be taken of those letters, portions of which are in this court’s
records of Corbitt’s prior direct appeal. Because Corbitt refers to them in his petition, we
believe it is appropriate to take judicial notice of them. See Tedesco v. Dep’t of Rev., 93
So. 3d 1236, 1237 n.1 (Fla. 2d DCA 2012).


                                              3
       It is important to note that Lincoln and St. Val certified conflict with K.Y.L., which

holds that a defendant’s lack of remorse is “a constitutionally impermissible consideration

in imposing sentence” in all circumstances. K.Y.L., 685 So. 2d at 1381; see also Lincoln,

978 So. 2d at 247; St. Val, 958 So. 2d at 1148. Thus, this court and the Fourth District

Court rejected the notion that considerations like lack of remorse or failure to accept

responsibility are constitutionally impermissible sentencing factors in all cases. For this

reason, subsequent decisions are careful to point out that the defendants, unlike Corbitt

in the instant case, consistently maintained their innocence throughout trial and

sentencing. See Robinson, 108 So. 3d at 1151 (reversing a sentence imposed after a

jury trial because the trial court considered lack of remorse and specifically noting that

“[a]t sentencing, Robinson maintained his innocence”); Peters, 128 So. 3d at 847 (holding

that the rule “emanated from cases where a defendant consistently maintained his

innocence”); Jiles, 18 So. 3d at 1216 (reversing a sentence because the trial court

considered the defendant’s refusal to accept responsibility and stating that “Jiles

maintained his innocence at trial and during sentencing”); Holt, 33 So. 3d at 811

(explaining that “Holt has repeatedly denied committing the crimes charged and has

persisted in maintaining his innocence”); Bracero v. State, 10 So. 3d 664, 665 (Fla. 2d

DCA 2009) (holding that, after a jury verdict of guilty and the defendant’s steadfast claims

of innocence at sentencing, it was improper for the court to consider “the fact that a

defendant continues to maintain his innocence”); Ritter, 885 So. 2d at 414 (reversing a

sentence after a jury trial and concluding that “it is constitutionally impermissible . . . to

consider the fact that a defendant continues to maintain his innocence and is unwilling to

admit guilt”).




                                             11
statements in Corbitt’s letters showed his refusal to take responsibility for his wrongful

conduct. The statement by the trial court that Corbitt took little responsibility for what he

did was made as the trial judge was attempting to find mitigating factors to consider in

imposing the sentence. The transcript of the sentencing hearing reveals the following

discussion (emphasis added):

              THE COURT: All right, Mr. Corbitt, your attorney is right in
              making one assertion that I’ve carefully noted here, that the
              purpose of sentencing is not vengeance, it’s to determine the
              appropriate amount of sentence necessary to accomplish
              whatever goals, sentencing goals, are defined by the
              sentencing authority. So if 15 years will do, you don’t do 30.
              If 30 will do, you don’t do life. And in determining what the
              appropriate sentence should be, I calmly look through
              and comb through all of the potential mitigation to
              determine what the appropriate sentence should be.

              THE DEFENDANT: Yes, Sir.

              THE COURT: And from the moment you entered your plea,
              I’ve been -- I’ve been deliberating on that, considering that,
              and certainly no decision has been made until I’ve had an
              opportunity to review all of the evidence.

              And the pieces of that puzzle that assist me in determining the
              appropriate sentence, for example, first and foremost is
              acceptance of responsibility. And I submit to you that
              notwithstanding your assertion under oath to me, previously
              when you entered your plea that you shot Detective Tiller,
              you’ve retreated from that. And whether or not we can -- we
              can debate the extent to which you’ve retreated from that, but
              you’ve retreated from that.          You’ve accepted little
              responsibility for what happened here.

              So I look further and aggressively through your
              Presentence Investigation to try to find some level of
              mitigation that would justify some sort of sentence that’s
              less than the maximum . . . .

Corbitt did not object to these statements, which is why he asserts fundamental error. As

we will explain, because there is no error, there is no fundamental error to analyze.



                                             5
       The courts have held that “[c]onsideration of remorse is . . . appropriate if it occurs

during a court’s consideration of whether or not to mitigate a sentence.” Rankin v. State,

174 So. 3d 1092, 1097 (Fla. 4th DCA 2015); see also K.N.M. v. State, 793 So. 2d 1195,

1198 (Fla. 5th DCA 2001) (holding that “remorse and an admission of guilt may be

grounds for mitigation of a sentence or a disposition”); Godwin v. State, 160 So. 3d 497,

498 (Fla. 2d DCA 2015) (“[W]e agree with the postconviction court that in context, the trial

court’s comments at sentencing were made in connection with its rejection of the

argument for mitigation.”); Shelton v. State, 59 So. 3d 248, 250 (Fla. 4th DCA 2011). After

the trial court found there were no mitigating factors, it then examined all of the evidence

presented in arriving at its sentence. Under these circumstances, we do not believe it

was error for the trial court to consider Corbitt’s lack of remorse or failure to take

responsibility for his crimes during sentencing.

       Corbitt’s petition should be denied for a second reason. As previously explained,

prior to sentencing, Corbitt had freely and voluntarily entered a plea and waived his

constitutional rights, including his rights to remain silent and to a jury trial. Even if the trial

court had not considered Corbitt’s lack of responsibility or remorse in mitigation, because

Corbitt entered a plea and admitted under oath his involvement in the crimes, those

considerations would not have been error.

       The stated reason for the general rule prohibiting a trial court from considering a

defendant’s lack of responsibility or remorse during sentencing is to ensure that a

defendant is not unfairly punished for his plea of not guilty and the exercise of his

constitutional rights to remain silent and to proceed to a jury trial. As the Florida Supreme

Court in Holton v. State explained:




                                                6
              A defendant has the right to maintain his or her innocence and
              have a trial by jury. Art. I, § 22, Fla. Const. The protection
              provided by the [F]ifth [A]mendment to the United States
              Constitution guarantees an accused the right against self-
              incrimination. The fact that a defendant has pled not guilty
              cannot be used against him or her during any stage of the
              proceedings because due process guarantees an individual
              the right to maintain innocence even when faced with
              evidence of overwhelming guilt.

573 So. 2d 284, 292 (Fla. 1990); see also Robinson v. State, 108 So. 3d 1150, 1151 (Fla.

5th DCA 2013); Jiles v. State, 18 So. 3d 1216, 1216 (Fla. 5th DCA 2009); K.N.M., 793

So. 2d at 1198; Peters v. State, 128 So. 3d 832, 847 (Fla. 4th DCA 2013); Green v. State,

84 So. 3d 1169, 1171-72 (Fla. 3d DCA 2012); Holt v. State, 33 So. 3d 811, 812 (Fla. 4th

DCA 2010); Ritter v. State, 885 So. 2d 413, 414 (Fla. 1st DCA 2004).

       This court and others have held that the reason for the rule evaporates when a

defendant freely and voluntarily enters a plea and admits his involvement in the crimes

or presents testimony regarding his involvement in the crimes during trial. See Lincoln v.

State, 978 So. 2d 246, 247 (Fla. 5th DCA 2008); St. Val v. State, 958 So. 2d 1146, 1147

(Fla. 4th DCA 2007), review dismissed, 982 So. 2d 682 (Fla. 2008); Peake v. State, 490

So. 2d 1325, 1326 (Fla. 1st DCA 1986); see also Peters, 128 So. 3d at 847.

       In Peake, the defendant entered a plea to the crimes charged and was sentenced.

490 So. 2d at 1325. He challenged his sentence on appeal, contending that four reasons

existed to reverse his sentence. Id. In the fourth reason, he alleged that the trial court

erred in considering the fact that the defendant attempted to place some of the blame for

his conduct on the victim. Id. In affirming the sentence, the First District Court explained:

              We do not believe that the validity of reason # 4 is governed
              by the cases which have disapproved the trial court’s reliance
              upon the defendant’s apparent untruthfulness at trial or lack
              of remorse. See Perez v. State, 485 So. 2d 24 (Fla. 1st DCA



                                             7
              1986); Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984);
              Guerrero v. State, 484 So. 2d 59 (Fla. 2nd DCA 1986); and
              Pursell v. State, 483 So. 2d 94 (Fla. 2nd DCA 1986).

              In Hubler, the defendant pled not guilty, went to trial, and
              presented certain alibi witnesses. The jury found him guilty.
              In departing from the guidelines sentence, the trial court gave
              as reasons Hubler’s lack of remorse and his apparent
              subornation of perjury. In reversing, this Court stated:

                     [W]here the defendant has at all times denied
                     committing the battery charged and has
                     persisted in maintaining his innocence, we
                     conclude that it was improper for the trial court
                     to aggravate the sentence imposed because the
                     defendant failed to exhibit remorse for having
                     committed the offense. This is but a corollary of
                     the rule that a trial court may not impose a
                     greater sentence because the defendant has
                     availed himself of his constitutional right to a trial
                     by jury (citations omitted).

              Id. at 353. In the instant case, as reflected in the presentence
              investigation report, the defendant admitted the offenses from
              the time of his arrest. However, in an apparent effort to
              mitigate his conduct (as opposed to a defense to the charges),
              he claimed that his eight year old stepdaughter initiated his
              sexual encounters with her. Thus, the defendant did not
              continue to maintain his innocence in the face of accusations,
              as was the concern in Hubler, but, rather, admitted the crimes
              and understood them to be wrong.

Id. at 1325-26. Like the defendant in Peake, Corbitt admitted his involvement in the

crimes and that he shot the officer. However, he attempted to mitigate his responsibility

by claiming he was a follower and by trying to lay most of the blame for the crimes on his

deceased accomplice.

       Even in cases where the defendant exercises his right to a jury trial, this court has

held that if he presents testimony admitting his involvement in the crime, it is not error for




                                               8
the trial court to consider the defendant’s lack of remorse during sentencing. As this court

explained in Lincoln:

              This appeal involves the propriety of the trial court’s
              enunciation of the defendant’s lack of remorse as a factor in
              imposing sentence on two counts of sexual battery upon a
              child (familial authority). The defendant, relying on several
              cases including Holton v. State, 573 So. 2d 284 (Fla. 1990),
              Lyons v. State, 730 So. 2d 833 (Fla. 4th DCA 1999) and K.Y.L.
              v. State, 685 So. 2d 1380 (Fla. 1st DCA 1997), disapproved
              on other grounds in State v. J.P.C., 731 So. 2d 1255 (Fla.
              1999), urges that lack of contrition or remorse is a
              constitutionally impermissible consideration in imposing
              sentence.

              We believe that St. Val v. State, 958 So. 2d 1146 (Fla. 4th
              DCA), rev. granted, 966 So. 2d 968 (Fla. 2007), offers the
              proper framework for deciding this issue. As in St. Val, the
              trial court here, in imposing a sentence within the strictures of
              the criminal punishment code, was not punishing the
              defendant for exercising his constitutional right to plead not
              guilty and maintain his innocence. Rather, the defendant had
              testified at trial and was unable to explain incriminating
              comments he made in recorded telephone exchanges with
              the child victim. In one exchange, the victim referred to the
              “sex part” and the defendant replied, “You didn’t enjoy that?”
              The defendant additionally at one point during sentencing
              admitted he was sorry for “the whole thing,” for “what I did,”
              though he then raised challenges to the child victim’s
              credibility.

              Under these circumstances, the trial court properly took into
              account the defendant’s lack of remorse for his misconduct.

978 So. 2d at 247 (footnote omitted). Like the trial court in Lincoln, the trial court in the

instant case properly took into consideration Corbitt’s attempts to place responsibility for

his crimes on his deceased accomplice.

       Because St. Val sets the proper framework to resolve the issue in this case, a

discussion of that case is pertinent. In St. Val, the jury convicted the defendant of

attempted first-degree murder with a firearm, attempted second-degree murder, and



                                             9
shooting into a vehicle. 958 So. 2d at 1146. The evidence presented in that case was

that the defendant shot at two people in a car, wounding one in the arm. Id. The

defendant attempted to explain his involvement in the crimes as “an accident in which

someone just happened to get shot.” Id. At sentencing, the trial court considered the

defendant’s lack of remorse in rejecting the defendant’s characterization of the incident

as an accident. Id. In affirming the sentence, the Fourth District Court held that “[w]e

reject appellant’s contention that a sentencing judge may never take a defendant’s lack

of remorse into consideration when imposing sentence.” Id. The court stated that

remorse for the crimes committed “is the type of factor that judges have historically taken

into consideration in imposing sentence.” Id. at 1146-47. The court further stated that

lack of remorse may not be considered in cases where defendants maintain their

innocence at sentencing. Id. at 1147. The court explained its ruling as follows:

             K.Y.L. [v. State, 685 So. 2d 1380, 1381 (Fla. 1st DCA 1997),]
             stated that “lack of contrition or remorse is a constitutionally
             impermissible consideration in imposing sentence.” As
             authority for this statement, K.Y.L. cited Holton and A.S.
             K.Y.L., 685 So. 2d at 1381. K.Y.L. misstates the holdings of
             Holton and A.S.; both cases involve defendants who
             maintained their innocence at sentencing, not defendants who
             did not contest their commission of criminal acts, but who
             failed to exhibit remorse for them. The first district recognized
             this distinction in Peake v. State, 490 So. 2d 1325, 1326 (Fla.
             1st DCA 1986); the court upheld an enhanced sentence
             imposed on a defendant for lewd assault on a child, where the
             defendant did not protest his innocence, but exhibited a lack
             of remorse when he argued in mitigation that the eight year
             old victim had initiated the sexual encounters with him.

             This is not a case where a defendant was punished for
             protesting his innocence as in A.S., Johnson [v. State, 948 So.
             2d 1014 (Fla. 3d DCA 2007)], and Holton.

Id.




                                            10
       It is important to note that Lincoln and St. Val certified conflict with K.Y.L., which

holds that a defendant’s lack of remorse is “a constitutionally impermissible consideration

in imposing sentence” in all circumstances. K.Y.L., 685 So. 2d at 1381; see also Lincoln,

978 So. 2d at 247; St. Val, 958 So. 2d at 1148. Thus, this court and the Fourth District

Court rejected the notion that considerations like lack of remorse or failure to accept

responsibility are constitutionally impermissible sentencing factors in all cases. For this

reason, subsequent decisions are careful to point out that the defendants, unlike Corbitt

in the instant case, consistently maintained their innocence throughout trial and

sentencing. See Robinson, 108 So. 3d at 1151 (reversing a sentence imposed after a

jury trial because the trial court considered lack of remorse and specifically noting that

“[a]t sentencing, Robinson maintained his innocence”); Peters, 128 So. 3d at 847 (holding

that the rule “emanated from cases where a defendant consistently maintained his

innocence”); Jiles, 18 So. 3d at 1216 (reversing a sentence because the trial court

considered the defendant’s refusal to accept responsibility and stating that “Jiles

maintained his innocence at trial and during sentencing”); Holt, 33 So. 3d at 811

(explaining that “Holt has repeatedly denied committing the crimes charged and has

persisted in maintaining his innocence”); Bracero v. State, 10 So. 3d 664, 665 (Fla. 2d

DCA 2009) (holding that, after a jury verdict of guilty and the defendant’s steadfast claims

of innocence at sentencing, it was improper for the court to consider “the fact that a

defendant continues to maintain his innocence”); Ritter, 885 So. 2d at 414 (reversing a

sentence after a jury trial and concluding that “it is constitutionally impermissible . . . to

consider the fact that a defendant continues to maintain his innocence and is unwilling to

admit guilt”).




                                             11
       The rule that prohibits consideration of the defendant’s lack of responsibility or

remorse applies in cases where the defendant entered a plea of not guilty, proceeded to

trial, and continued to maintain his innocence at sentencing. We have found no case,

and do not believe any exists, that applies the rule to require resentencing when the

defendant waived his rights, entered a plea, and admitted his guilt.

       In summary, lack of responsibility or remorse was considered in mitigation of

Corbitt’s sentence. Even if it were otherwise, Corbitt freely and voluntarily entered a plea

and admitted under oath that he committed the crimes. We do not think it appropriate to

apply a rule of law intended to protect the very rights Corbitt has waived. Because

Corbitt’s appellate counsel cannot be faulted for failing to raise issues that are not

erroneous, see Davis v. State, 875 So. 2d 359, 373 (Fla. 2003), we deny the Petition for

Writ of Habeas Corpus.


       PETITION DENIED.


LAWSON, C.J., and EVANDER, J., concur.




                                            12
