          Supreme Court of Florida
                                  ____________

                                  No. SC18-806
                                  ____________

                      ANGEL SANTIAGO-GONZALEZ,
                               Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  June 25, 2020

PER CURIAM.

      This case is before the Court on appeal from a judgment of conviction of

first-degree murder and a sentence of death. We have jurisdiction. See art. V,

§ 3(b)(1), Fla. Const. The appellant, Angel Santiago-Gonzalez, pleaded guilty in

2016 to the first-degree murder of Donald Burns. At the time of the 2014 attack

that resulted in Burns’ death, both men were inmates at the Reception and Medical

Center (RMC), a Florida Department of Corrections facility located in Union

County. Following a non-jury penalty phase proceeding, Santiago-Gonzalez was

sentenced to death. For the reasons explained below, we affirm Santiago-

Gonzalez’s conviction and sentence of death.
                FACTS AND PROCEDURAL BACKGROUND

                            The Incident and Response

      Around 9:40 p.m. on the night of January 9, 2014, corrections officers

responded to a disturbance in the K dormitory at the RMC. Captain William

Hamilton was the shift commander that evening, and he had just completed his

normal rounds, including the K dormitory, without incident. However, after

finishing his rounds, Captain Hamilton heard a banging noise while talking with

another officer, Sergeant Kelvin Young. Hamilton instructed Sergeant Young to

investigate the source of the noise and to advise if he needed help.

      The source of the banging noise was inmates who were trying to get the

attention of the corrections officers and direct them to the cell where Burns and

Santiago-Gonzalez were housed. When Sergeant Young reached the cell,

Santiago-Gonzalez was standing inside the cell, and Burns, the victim of a brutal

stabbing, was lying on the floor. Burns was also tied up, his hands and his feet

both bound. Sergeant Young, who remained outside of the cell, advised via radio

that he needed help. Captain Hamilton went to the cell, called for assistance from

additional staff members, and notified the on-site medical personnel.

      Santiago-Gonzalez had a knife in his hand that he refused to relinquish to the

corrections officers until a video camera was brought to the cell to record him. A

video camera was brought to the cell, and once the recording began, Santiago-


                                        -2-
Gonzalez slid the knife under the cell door. He was restrained without incident.

While being escorted to a holding cell, Santiago-Gonzalez commented that he was

not interested in homosexual activity. A medical assessment of Santiago-Gonzalez

conducted shortly thereafter confirmed that he was uninjured.

      In Burns’ cell, ligature cutters were used to remove the restraints that

Santiago-Gonzalez placed on him. Lieutenant Mark Ficken, who also heard the

radio calls, responded to the cell to provide assistance and brought a camera to

photograph the scene. Lieutenant Ficken observed Burns’ multiple stab wounds,

including a severe neck wound, and believed them to be life-threatening.

      Burns was weak but communicative, and he repeatedly said that he was

afraid he was going to die. Lieutenant Ficken then questioned Burns about the

incident as follows:

      FICKEN: Listen to me, listen to me. I need to know what happened
      in there.

      BURNS: I got stabbed multiple times.

      FICKEN: By who?

      BURNS: My roommate.

      FICKEN: What happened? Why did he stab you?

      BURNS: I don’t know.

      FICKEN: How did he tie you up?

      BURNS: I let him.

                                        -3-
FICKEN: Huh?

BURNS: I let him.

FICKEN: You let him tie you up. Why?

BURNS: I don’t know.

FICKEN: Talk to me man, I need to know what happened in there.

BURNS: Tied me up.

FICKEN: He tied—

BURNS: He tried to rape me.

FICKEN: Huh?

BURNS: He tried to rape me.

FICKEN: You let him tie you up?

BURNS: No.

FICKEN: You just said you let him tie you up, why did you let him?

BURNS: I don’t know. I’m dying.

FICKEN: Huh?

BURNS: I’m going to die.

FICKEN: They are going to work on you, man, you need to tell me
what happened.

BURNS: I guess (Unintelligible)

FICKEN: Why did you let him tie you up?

BURNS: I don’t know. I was a fool.

                                  -4-
FICKEN: Huh?

BURNS: I was a fool.

FICKEN: Were you all playing games?

BURNS: No, sir.

FICKEN: Well, then how did you let him tie you up?

BURNS: I just did.

FICKEN: What’s your roommate’s name?

BURNS: Santiago.

FICKEN: You all have a beef?

BURNS: No, sir. He did it out of spite.

FICKEN: Huh?

BURNS: He did it out of spite.

FICKEN: Out of spite. Did he tie you up before he stabbed you?

BURNS: No, he tied me up and then stabbed me.

FICKEN: He tied you up and then stabbed you, huh?

BURNS: Yes, sir.

FICKEN: All right. So what I need to know though is how did he tie
you up? Did he hold you down?

BURNS: Yes.

FICKEN: Or did you let him do it?

BURNS: He held me down.

                                 -5-
      FICKEN: Look, man, I need you to be truthful for me.

      BURNS: I am.

      FICKEN: He held you down and then he tied you?

      BURNS: Yes.

      FICKEN: Hey, listening to me? What is your name, man?

      BURNS: Burns.

                          Santiago-Gonzalez Interview

      About three hours after the incident, senior inspector Kevin Ortiz conducted

an interview of Santiago-Gonzalez. After being advised of his Miranda rights,

Santiago-Gonzalez advised that he understood his rights and wanted to discuss the

incident. Santiago-Gonzalez explained that hours before the incident, he asked a

corrections officer to move him into Burns’ cell to facilitate Burns helping him

with his legal matters. He said that he knew Burns was in prison for committing

sexual offenses against minors but that he was not concerned because he just

wanted legal help from Burns.1 According to Santiago-Gonzalez, after being in

Burns’ cell for two to three hours, Burns started “acting funny,” and Santiago-

Gonzalez started cleaning the cell. At some point, Burns touched Santiago-



       1. During senior inspector Ortiz’s investigation, he learned that Burns and
Santiago-Gonzalez were previously inmates at the Santa Rosa Correctional
Institution, and the inmates there were aware that Burns was in prison for child
molestation.


                                        -6-
Gonzalez’s buttocks underneath his boxer shorts, and Santiago-Gonzalez observed

that Burns’ penis was erect. Santiago-Gonzalez became irate.

      Over the course of several minutes, Santiago-Gonzalez formed his plan to

attack Burns and ripped his bedsheet into multiple pieces. He said:

            And I just, I wasn’t, like, what the fuck, you know what I
      mean? And I said, I’m going to kill this man. I just blamed him. I
      wanted to tie him, I want to knock him over. I tied him up and I’m
      going to kill him and that’s what I did. Just punch him somewhere in
      the eyes, somewhere in the head.

      After Santiago-Gonzalez punched Burns in the head causing Burns to fall

down, he tied Burns up with the torn pieces of bedsheet. One piece of the sheet

was used to tie Burns’ hands together, another to tie his feet together, and another

to tie his bound hands and bound feet together. Then, Santiago-Gonzalez removed

a concealed homemade knife from inside a bandage that was tied to his leg. He

recalled:

              He [Burns] trying, he was, I just hold him down just to keep
      him, I punched around, all around the neck and head. I tried to stab
      him in the face, in the eye, heart, chest, back, and hand. I just black
      out, I just, I had been on psyche [sic] medication for a long time, just
      all my anger, everything, I just come out. I just black out. To be
      honest with you, I just, I don’t know I just—

      When questioned about his statement that he blacked out, Santiago-

Gonzalez responded: “Really, I react slow. You know what I mean? I take my

time and because I would like, what the fuck, and so now the mother fucker has to




                                        -7-
die, he’s going to die. I just plain knocked him out and tie him up, and that’s what

I did.”

                               Burns’ Medical Treatment

          Burns was initially treated for multiple stab wounds in the emergency unit at

RMC. Nurse Jeffrey Dukes, who helped treat Burns, observed Burns’ life-

threatening wounds. Burns told Dukes that he was going to die. Due to the nature

of his injuries, Burns was transported by EMS to the University of Florida Shands

Hospital (Shands).

          Trauma surgeon Dr. Lawrence Lottenberg treated Burns upon his

January 10, 2014, transfer to Shands. Dr. Lottenberg recalled that Burns’ case was

memorable because of the numerous “stab wounds all over his neck, chest, and

abdomen. Succumbed numerous times in the emergency department and in the

operating room and yet managed to live through all of that.” Dr. Lottenberg

further stated: “Well, obviously this patient had wounds in his neck, both sides of

his chest, in his abdomen. He had all of the stab wounds in his back. This patient

was at an extreme level of pain and discomfort and required all of the aggressive

support with pain medicine that we could give him.”




                                           -8-
                            Burns’ Death and Autopsy

      Burns lived for nearly six months after the stabbing and died on July 3,

2014. Dr. William Hamilton, the District Eight Medical Examiner, conducted the

autopsy of Burns.

      Dr. Hamilton identified a total of sixty-four stab wounds on Burns’ body but

conceded that number to be a minimum, not a maximum, because some wounds

may have healed during the time between the stabbing and Burns’ death. One of

the multiple wounds was a gaping 9.5 inch x 2.5 inch healing abdominal wound.

      Weighing only 86 pounds at the time of his death, Burns suffered from

severe malnutrition as a result of the stab wounds, which Dr. Hamilton described

as “penetrating injuries of chest and abdomen which resulted in a profound loss of

blood and ischemic injury to internal organs, particularly to the intestinal canal.”

Dr. Hamilton also testified that Burns “had penetrating injuries into the central

nervous system with a resultant small stroke in the cerebellum and subsequent

infarction and necrosis of much of his spinal cord which left him quadriplegic.”

Dr. Hamilton did not identify any defensive wounds.

      In November 2014, Santiago-Gonzalez was indicted for first-degree murder.

He subsequently expressed his intent to plead guilty as charged, and in June 2016,

the trial court sua sponte ordered two competency evaluations. Both experts




                                         -9-
determined that Santiago-Gonzalez was competent to proceed and submitted

written reports to that effect.

                                  The Guilty Plea

      On August 15, 2016, Santiago-Gonzalez pleaded guilty to first-degree

murder. The trial court accepted the plea pursuant to the following plea colloquy:

      COURT: Is it your intent that you wish to plead guilty or no contest to
      this offense?

      DEFENDANT: Guilty.

      COURT: And is that because you’re guilty of the offense, sir?

      DEFENDANT: Yes.

      COURT: Now, the attorneys can correct me if I’m wrong, but I
      believe there’s only one count of first-degree murder. You understand
      that that offense carries a maximum sentence punishable by death,
      with the minimum sentence being life in prison without parole.

      DEFENDANT: Yes.

      COURT: You understand in Florida that “life” means life.

      DEFENDANT: Yes.

      COURT: Do you understand that the law means that you will not
      be eligible for parole or early release?

      DEFENDANT: Yes.

      COURT: Has anyone suggested to you that you will someday be
      released from prison if you enter a plea to this charge?

      DEFENDANT: No.



                                       - 10 -
COURT: Do you understand that, for a case in which the State is
seeking death, there’s two phases?

DEFENDANT: Yes.

COURT: And do you understand that, if you enter a guilty plea here
today, that will take care of the first phase?

DEFENDANT: Yes.

COURT: Do you understand the second phase requires either a trial
by myself or a trial with a jury?

DEFENDANT: Yes.

COURT: And do you understand that you have a right to a jury trial
for the second phase, also known as the penalty phase?

DEFENDANT: Yes.

COURT: And my understanding is today you wish to have the trial
only before myself for the penalty phase.

DEFENDANT: Yes.

COURT: You understand that, if you change your mind as to phase
two, you need to let your attorney know that you now request to have
a jury trial as to the penalty phase.

DEFENDANT: Yes.

COURT: The last time you were in court you told me you wanted to
plead guilty, and you wanted the death penalty; is that correct?

DEFENDANT: Yes.

COURT: You understand that at the penalty phase, the State would
still have to put on evidence of the aggravators, and you understand I
would consider any evidence of mitigators.



                                 - 11 -
DEFENDANT: Yes.

COURT: That even if you maintain that you wish to seek the death
penalty, after hearing all the evidence, I still may come back with a
life sentence.

DEFENDANT: Yes.

COURT: Knowing that, do you still wish to go forward with this
guilty plea?

DEFENDANT: Yes.

COURT: You also understand, at the penalty phase, that you may end
up testifying under oath about the offense and that any answers that
you may give could be used against you at a later date.

DEFENDANT: Yes.

COURT: Did your attorney go over with you what’s known as the
Jimmy Ryce warnings regarding there being a sexually violent or
sexually motivated crime in your history?

DEFENDANT: I don’t have any sexual charges.

COURT: I just wanted to make sure you’re aware that, if you did, that
you could be subject to involuntary civil commitment as a sexual
predator.

DEFENDANT: I understand.

COURT: So, Mr. Santiago, you’ve had the services of the public
defender’s office, which you’ve had Mr. Chipperfield, Mr. Goldman,
and Mr. Eisenmenger; is that correct?

DEFENDANT: Yes.

COURT: Have you been satisfied with their services?

DEFENDANT: Yes.

                                 - 12 -
COURT: Is there anything you asked your attorney to do in this case
that he refused to do?

DEFENDANT: No.

COURT: Do you feel that your attorneys have represented you to the
best of their ability?

DEFENDANT: Yes.

COURT: Do you desire any additional time at this point to discuss
anything that I’ve spoken with you about the case so far with your
attorney?

DEFENDANT: No.

COURT: Your attorney mentioned to you that you have some pending
motions outstanding. One involves a potential speedy trial issue that,
if you were to win, would be dispositive, and the charges would be
dismissed against you.

DEFENDANT: Yes.

COURT: You understand there’s also some additional motions
regarding the death penalty that are outstanding.

DEFENDANT: Yes.

COURT: You understand, by entering your plea of guilty prior to
them being heard, you’re going to waive your right to be able to
appeal any order that I would give on those motions.

DEFENDANT: Yes.

COURT: Do you understand that if, in the future, a higher court finds
the Florida death penalty statutes are unconstitutional, you would not
be allowed to withdraw your plea based on that fact.

DEFENDANT: Yes.



                                - 13 -
COURT: You understand that by entering a plea that has a potential of
a life sentence with no eligibility of parole —

DEFENDANT: Yes.

COURT: — you are forever waiving any future claim to withdraw
your plea in the event that the United States or the State of Florida
declared the death penalty unconstitutional.

DEFENDANT: Yes.

COURT: Do you understand that?

DEFENDANT: Yes.

COURT: Are you entering this plea freely and voluntarily?

DEFENDANT: Yes.

COURT: Has anyone forced or pressured you into entering this plea?

DEFENDANT: No.

COURT: Has anyone threatened you to get you to enter this plea?

DEFENDANT: No.

COURT: Are you currently under the influence of any alcohol?

DEFENDANT: No.

COURT: Has anyone promised you anything other than what we have
discussed which has made you enter this plea today?

DEFENDANT: No.

COURT: With everything we’ve discussed up to this point, do you
still wish to enter this plea?

DEFENDANT: Yes.

                                 - 14 -
      Defense counsel and the prosecutor then agreed to enter the competency

evaluation reports into evidence. The defense advised that it sought no further

testimony on the issue of competency. The Court continued:

              All right, Mr. Santiago. The Court finds that there is a factual
      basis for the plea and that Mr. Santiago has had an opportunity to
      consult with an attorney, of whom he says he’s satisfied with, that he
      is alert and completely cognizant as to what is occurring in court
      today. The Court also finds the defendant is aware of all the rights he
      is waiving by entering his guilty plea today. In addition, the Court
      finds his pleas are freely and voluntarily made, and he understands the
      consequences of his pleas. The Court also finds he is competent to
      enter a plea to the charge. I, therefore, accept your plea of guilty to
      the one count of first-degree murder. So next we have to schedule the
      penalty phase. I’m also going to order a presentence investigation
      report.

                                The Penalty Phase

      In February 2018, the trial court conducted a penalty phase in conjunction

with the Spencer hearing. 2 During the penalty phase, the State sought to prove the

existence of four aggravating factors, and the defense offered evidence in support

of fifty-seven mitigating circumstances.

                        State’s Initial Penalty Phase Case

      In addition to the evidence relating to the stabbing incident and subsequent

events that included Burns’ death, the State also introduced evidence of Santiago-

Gonzalez’s prior violent felony convictions. At the time of the stabbing, Santiago-



      2. Spencer v. State, 615 So. 2d 688 (Fla. 1993).

                                       - 15 -
Gonzalez was serving nine life sentences plus an additional 215 years’

imprisonment for multiple crimes, including attempted felony murder, kidnapping,

armed robbery, robbery, battery on a person over the age of 65, false

imprisonment, aggravated assault, and resisting arrest with violence.

                           Defense Penalty Phase Case

      In mitigation, the defense presented evidence about Santiago-Gonzalez’s

upbringing in Puerto Rico, and it emphasized his having spent his formative years

in a dangerous residential area known for frequent gun violence and gang activity.

Santiago-Gonzalez, the eldest of eleven children, primarily lived with his

grandmother. However, he was frequently exposed to the unclean and unsafe

conditions of his mother’s nearby home. Drug users left matches and crack pipes

in the home, and on multiple occasions, Santiago-Gonzalez’s siblings started fires

with matches that were left lying around. At least eight of his siblings were

removed from the home by social services.

      Witnesses testified that Santiago-Gonzalez was subjected to physical and

sexual violence. His grandfather beat him with belts and wires. One of his sisters

testified that she believed that Santiago-Gonzalez was sexually abused on a daily

basis by various men who frequented their home. She recalled Santiago-Gonzalez

complaining of anal pain, and she recalled seeing his bloody underwear.

Moreover, Santiago-Gonzalez’s brother told the defense mitigation specialist that


                                       - 16 -
he beat up two boys after they admitted to sexually abusing Santiago-Gonzalez

while being housed together in a juvenile detention facility.

       Evidence offered relating to Santiago-Gonzalez’s mental health revealed a

lengthy history, including behaviors such as banging his head against the wall as a

young child and engaging in substance abuse. He started taking Xanax at age five

or six and experimented with cocaine, marijuana, valium, and inhalant thinner at

age nine. Santiago-Gonzalez attempted suicide by hanging at age ten after being

released from a juvenile detention facility. Multiple family members, including

Santiago-Gonzalez’s father, engaged in various acts of self-harm.

       The earliest psychological report obtained by the defense was generated in

1990 when Santiago-Gonzalez was nine years old. The report stated that Santiago-

Gonzalez was a victim of neglect, abuse, and environmental deprivation. A

neurology report also noted that he appeared to be malnourished and short for his

age.

       The defense presented two psychologists, Dr. Steven Gold and Dr. Michele

Quiroga. Dr. Gold opined that at the time of the stabbing, Santiago-Gonzalez

satisfied two statutory mitigating circumstances. He concluded that: (1) Santiago-

Gonzalez was under the influence of extreme mental or emotional disturbance, and

(2) Santiago-Gonzalez’s capacity to appreciate the criminality of his conduct or to

conform his conduct to the requirements of law was substantially impaired.


                                        - 17 -
      Dr. Gold also concluded that Santiago-Gonzalez’s home environment

exposed him to ten adverse childhood experiences (ACEs).3 Dr. Gold testified that

ACEs often have a permanent effect on functioning, can physically alter the brain,

and can, in individuals with four or more ACEs, shorten life expectancy by an

average of twenty years relative to someone who has none of the factors. Dr. Gold

testified that Santiago-Gonzalez suffers from substance abuse disorder, post-

traumatic stress disorder (PTSD), complex PTSD, decreased ability to think ahead,

greater emotionality and impulsivity that may include explosive anger, changes in

consciousness, and forgetfulness. He also concluded that Santiago-Gonzalez meets

the criteria for bipolar disorder, major depressive disorder, antisocial personality

disorder, and possibly borderline personality disorder. He observed that Santiago-

Gonzalez attempted suicide multiple times, possibly beginning before age nine,

and he believed that most of the suicide attempts were genuine and not efforts to

get attention.




       3. Dr. Gold testified that Santiago-Gonzalez showed evidence of
(1) physical abuse, (2) verbal abuse, (3) physical neglect, (4) emotional neglect,
(5) domestic violence, (6) substance abuse, (7) family mental illness, (8) parental
figure loss, and (9) family members who were incarcerated. Dr. Gold concluded
that Santiago-Gonzalez satisfied nine out of ten ACEs and remarked that such a
result is “extremely unusual.” At Santiago-Gonzalez’s request, ACE number
(10), childhood sexual abuse, was not discussed in detail during Dr. Gold’s
testimony. However, Dr. Gold testified that evidence supported such a finding.


                                        - 18 -
      Dr. Michele Quiroga, a psychologist with a clinical neuropsychology

subspecialty, opined that Santiago-Gonzalez’s actual IQ score was 74 and

indicative of borderline intellectual functioning.

                                   State’s Rebuttal

      In rebuttal, the State offered the testimony of Dr. Tonia Werner, a

psychiatrist, and Dr. Michael Kerkov, a psychologist. Dr. Werner testified that

according to Santiago-Gonzalez, he tied up Burns and stabbed him after Burns

grabbed his rear end. Santiago-Gonzalez also said that he wanted Burns to suffer

and knew that Burns would die.

      Dr. Werner diagnosed Santiago-Gonzalez with antisocial personality

disorder and mood disorder. However, she ruled out PTSD because he denied

being sexually abused and stated he did not remember being abused. Dr. Werner

also testified that Santiago-Gonzalez did not meet the full criteria of borderline

personality disorder but did exhibit self-injurious behavior consistent with that

diagnosis. She also contradicted Dr. Gold’s conclusions regarding the two

statutory mitigating circumstances presented by the defense.

      Dr. Kerkov reviewed the raw data compiled by Dr. Quiroga related to

Santiago-Gonzalez’s cognitive functioning. He disputed the data on which Dr.

Quiroga relied and opined there was no indication that Santiago-Gonzalez had any

relevant cognitive impairment.


                                        - 19 -
                               Conviction and Sentence

         In April 2018, following the combined penalty phase and Spencer hearing,

Santiago-Gonzalez was adjudicated guilty of first-degree murder and sentenced to

death.

                                  Aggravating Factors

         The trial court found the existence of four aggravating factors and assigned

weight as follows: (1) the capital felony was committed by a person previously

convicted of a felony and under sentence of imprisonment (great weight); (2) prior

violent felony (great weight); (3) the capital felony was especially heinous,

atrocious, or cruel (HAC) (very great weight); and (4) the capital felony was a

homicide and was committed in a cold, calculated, and premeditated manner

without any pretense of moral or legal justification (CCP) (very great weight).

                                  Statutory Mitigation

         The court found as follows with respect to the two statutory mitigating

circumstances argued by the defense: (1) the capital felony was committed while

the defendant was under the influence of extreme mental or emotional disturbance

(not proven); (2) the capacity of the defendant to appreciate the criminality of his

conduct or to conform his conduct to the requirements of law was substantially

impaired (not proven).




                                          - 20 -
                               Nonstatutory Mitigation

      The trial court made the following findings with respect to fifty-five

nonstatutory mitigating circumstances, ranging from not proven to moderate

weight: (1) the defendant suffers from severe developmental trauma (not proven);

(2) impact of life in Luis Llorens Torres housing (moderate weight); (3) the

defendant was the product of statutory rape (very little weight); (4) the defendant’s

father was absent (very little weight); (5) the defendant’s mother was intellectually

disabled (very little weight); (6) the defendant’s mother’s impaired parenting skills

(very little weight); (7) the defendant’s mother abandoned him (little weight);

(8) the defendant’s grandfather was violent and abusive (very little weight); (9) the

defendant’s grandfather was a pedophile (very little weight); (10) the defendant’s

grandmother failed to protect children (very little weight); (11) the defendant’s

sexual abuse in the Llorens Community (moderate weight); (12) the defendant’s

early drug use (very little weight); (13) the defendant’s lack of childhood health

(very little weight); (14) the defendant’s mental illness as a child (very little

weight); (15) the home of the defendant’s mother (very little weight); (16) the

defendant’s mother was a prostitute (very little weight); (17) the defendant’s

siblings were neglected (very little weight); (18) the defendant was placed in

juvenile detention at age nine (moderate weight); (19) the defendant experienced

sexual abuse in juvenile detention (moderate weight); (20) the death of the


                                         - 21 -
defendant’s grandmother (little weight); (21) the defendant’s placement with his

aunt Gloria as a child (not proven); (22) the defendant’s placement with his aunt

Maria as a child (not proven); (23) the defendant’s lack of education (very little

weight); (24) the defendant saved his brother’s life (very little weight); (25) the

defendant’s exposure to violent crimes (moderate weight); (26) the impact of the

loss of Santiago-Gonzalez’s protective cousin, nicknamed “Luis Llorens” (very

little weight); (27) the defendant’s opiate addiction as a child (very little weight);

(28) the defendant was a victim of violent crime (very little weight); (29) the death

of the defendant’s father (very little weight); (30) the defendant’s family history of

drug and alcohol abuse (some weight); (31) the defendant’s family history of being

victims of violent crimes (some weight); (32) the defendant’s family history of

criminal behavior (moderate weight); (33) the defendant’s family health issues

(very little weight); (34) the defendant’s family history of mental illness (moderate

weight); (35) the defendant’s family history of suicide (moderate weight); (36) the

defendant is bipolar (very little weight); (37) the defendant has clinical depression

(some weight); (38) the defendant has PTSD (very little weight); (39) the

defendant has complex PTSD (very little weight); (40) the defendant has

borderline personality disorder (very little weight); (41) the defendant has

antisocial personality disorder (very little weight); (42) the defendant’s Baker Act

hospitalizations (very little weight); (43) the defendant uses psychotropic


                                         - 22 -
medication (very little weight); (44) the defendant has a history of suicide attempts

(very little weight); (45) the defendant has a history of self-harm (very little

weight); (46) the defendant is an artist (very little weight); (47) the defendant’s

lifetime of institutionalization (little weight); (48) the defendant was sexually

assaulted by victim Donald Burns (not proven); (49) the defendant was the victim

of a lewd act by victim Donald Burns (not proven); (50) the defendant pled to first-

degree murder (little weight); (51) the defendant waived a jury recommendation on

sentencing (little weight); (52) the defendant’s courtroom behavior (little weight);

(53) the love of Santiago-Gonzalez’s family (little weight); (54) other factors in

character, background, or life (not proven); (55) other factors in the circumstances

of the offense (not proven).

                                     ANALYSIS

      Santiago-Gonzalez raises ten issues in this direct appeal. Additionally, the

scope of our mandatory review requires us to determine whether his guilty plea

was knowingly, intelligently, and voluntarily entered.

                                   I. Competency

      In determining whether a defendant is competent to proceed, the test is

whether the defendant has “sufficient present ability to consult with his lawyer

with a reasonable degree of rational understanding—and whether he has a rational

as well as factual understanding of the proceedings against him.” Hill v. State, 473


                                         - 23 -
So. 2d 1253, 1257 (Fla. 1985) (quoting Dusky v. United States, 362 U.S. 402, 402

(1960)). Santiago-Gonzalez argues that the trial court deprived him of due process

by accepting his guilty plea while he was incompetent. The scope of our review is

whether the trial court abused its discretion by (1) not conducting a competency

hearing, and (2) finding Santiago-Gonzalez competent to proceed.

      In June 2016, given Santiago-Gonzalez’s desire to plead guilty to first-

degree murder against the advice of counsel, the trial court appointed two experts,

Dr. William Meadows and Dr. Almari Ginory, to conduct competency evaluations.

The court’s order began as follows:

             THIS CAUSE is before the Court after the Defendant’s
      announcement that he wants to plead guilty to a capital crime against
      his attorney’s advice and the defense attorney’s suggestion that a
      competency evaluation might be in order under Fla. R. Crim. P.
      3.210(b), and, further, the Court having reasonable grounds to believe
      that the defendant may be incompetent to proceed and that experts
      should be appointed to examine and evaluate this defendant, it is
      ORDERED AND ADJUDGED as follows: [language appointing
      experts].

The order required that the experts’ written reports be submitted by July 22, 2016,

and also indicated that “[p]ursuant to Rule 3.210(b), Florida Rules of Criminal

Procedure, a hearing to determine the defendant’s mental condition shall be held

on (to be set by separate order) at 9:30 a.m. in the Circuit Court of Union County,

Union County Courthouse.” Subsequently, Dr. Ginory evaluated Santiago-

Gonzalez on July 6, 2016, and Dr. Meadows evaluated him on July 15, 2016.


                                       - 24 -
      Dr. Ginory and Dr. Meadows evaluated Santiago-Gonzalez’s competency

pursuant to the criteria set for in rule 3.211(a), Florida Rules of Criminal

Procedure. Both doctors concluded that Santiago-Gonzalez was competent to

proceed and set forth their findings in written reports.

      Both competency reports discussed Santiago-Gonzalez’s extensive

psychiatric history which dates back to age nine and includes two psychiatric

hospitalizations while living in Puerto Rico; a history of treatment with

psychotropic medications; diagnoses of adjustment disorder, antisocial personality

disorder, depressive disorder, bipolar disorder, and bipolar disorder with psychotic

features; and a history of self-harm and suicide attempts. Dr. Meadows also noted

that Santiago-Gonzalez sustained “head trauma due to a gunshot wound in 2002.

There were no indications of any persisting neurocognitive problems.”

Additionally, Dr. Meadows stated that in a different legal matter in 2010, he

evaluated Santiago-Gonzalez for competency and concluded that “Mr. Santiago-

Gonzalez was malingering psychotic disturbances and was not exhibiting active

psychiatric disturbances.”

      While both competency reports mentioned that Santiago-Gonzalez engaged

in acts of self-harm, Dr. Ginory’s report also provided the following detail:

      Medical History: He has had multiple episode[s] of self-injurious
      behavior and suicide attempts since incarcerated. These attempts have
      range[d] from cutting himself to swallowing objects. This has
      resulted in over 40 procedures, numerous hospitalizations, a blood

                                        - 25 -
      clot in his right arm, and breathing difficulties. His most recent
      surgery was three weeks prior. He reports the reason he harms
      himself is over frustration. He gets angry and no way to express this
      anger and so he harms himself. Only on a few of these instances was
      he trying to kill himself.

Despite these behaviors that Dr. Ginory concluded were consistent with antisocial

personality disorder, he concluded that “Mr. Santiago does have an adequate

understanding of the proceeding and does have the ability to participate effectively

in his own defense. As such, I opine that Mr. Angel Santiago is competent to

proceed.” Similarly, Dr. Meadows agreed with the diagnosis of antisocial

personality disorder and also noted that Santiago-Gonzalez is not intellectually

disabled, his bipolar disorder was in remission, and no psychiatric disturbances

were exhibited in the examination. Dr. Meadows concluded:

             Mr. Santiago-Gonzalez has the ability to appreciate these
      charges and the nature of the judicial process. He also has the
      capacity to consult with his attorney in a rational manner and he can
      testify relevantly. Mr. Santiago-Gonzalez is capable of entering a plea
      in this case and to appreciate the potential sanctions that he is facing.
      Based on the information available and the defendant’s presentation, it
      is the opinion of this examiner that Mr. Santiago-Gonzalez is
      Competent to Proceed.

      After receiving these reports, the trial court did not set a competency

hearing. Rather, Santiago-Gonzalez’s case proceeded to the change of plea hearing

on August 15, 2016. At that hearing, defense counsel did not challenge the

experts’ conclusions that Santiago-Gonzalez was competent to proceed. The

following discussion took place:

                                       - 26 -
THE COURT: All right. State, if you’ll give me a factual basis for the
plea.

MR. KRAMER [Prosecutor]: Your Honor, I will. Before we do that, I
would ask—before this hearing was held, the Court ordered two
psychological evaluations to determine Mr. Santiago’s competency to
enter this plea. Mr. Chipperfield and I have discussed allowing the
Court to receive the evaluations that were conducted and the written
reports of them as evidence in this case and ask the Court to make a
determination of his competence based upon those reports prior to the
Court accepting the plea. So if we could address that issue prior to me
giving you a factual basis and you accepting that factual basis and the
plea.

MR. CHIPPERFIELD [Defense Counsel]: Your Honor, Mr. Kramer
is right. We have reviewed those reports. Mr. Santiago is aware of
the contents. We’ve discussed that with him. And we don’t require
any additional testimony besides the reports, and we stipulate to the
reports being received in evidence on the issue of competency to enter
this plea. And based on our conversations with Mr. Santiago, he feels
the same way.

THE COURT: So you’re referring to Dr. Ginory’s report and Dr.
Meadows’s report; correct?

MR. KRAMER: That is correct, your Honor.

THE COURT: I’ve previously reviewed both reports, and both reports
are currently in the court file. Do you wish to mark additional copies
of the report for evidence?

MR. KRAMER: Your Honor, there has never, in my opinion, been a
suggestion that Mr. Santiago is incompetent; however, in an
abundance of caution, because the Court felt it necessary to have him
evaluated, we the State is [sic] asking that you receive them as
evidence of his competency and make a ruling that he is competent
today to enter this plea.

THE COURT: So when I was aware that Mr. Santiago wanted to enter
a plea and he wanted to request the death penalty, I was made aware

                                - 27 -
      that he had a history of mental illness. Competency has never been an
      issue in this case, but because of the seriousness of the offense, I went
      ahead and ordered Mr. Santiago to be evaluated. And I based part of
      that on the Ricardo Gill case, which I have reviewed the Supreme
      Court order in that appeal. I don’t have the case in front of me for a
      citation, but Judge Cates did something similar in that case. Since
      competency is not at issue, I don’t think I have to have a formal
      competency hearing. I find that there’s competent and substantial
      evidence based on the doctors’ reports, my interaction with the
      defendant, and the attorneys not expressing any concern regarding the
      defendant’s competence. That evidence supports the finding that the
      defendant, who has a history of mental illness, is competent to enter a
      knowing, intelligent, and voluntary plea here today. Anything else
      anybody wants to put on the record at this point regarding that issue?

      MR. KRAMER: No, your Honor. That covers it from the State’s
      perspective.

      MR. CHIPPERFIELD: Nothing from the defense, your Honor.

      MR. KRAMER: Factual basis?

      THE COURT: Yes, please.

After the factual basis was established, the trial court proceeded to conduct the plea

colloquy.

      Given the trial court’s own observations, the detailed expert reports from Dr.

Meadows and Dr. Ginory, and the uncontested conclusions from both experts that

Santiago-Gonzalez was competent to proceed, the trial court did not abuse its

discretion in ruling as such. Moreover, the trial court did not abuse its discretion

by not conducting a competency hearing where (1) the court appointed two experts

to examine Santiago-Gonzalez and evaluate his competence to proceed, (2) both



                                        - 28 -
experts concluded in written reports that Santiago-Gonzalez was competent, (3) the

trial court and the parties agreed that Santiago-Gonzalez was competent, and

(4) defense counsel stipulated to the admissibility of the experts’ reports and

declined to offer additional testimony on the subject.

      In Fowler v. State, 255 So. 2d 513, 515 (Fla. 1971), this Court stated:

      We concur that where the parties and the judge agree, the trial Court
      may decide the issue of competency on the basis of the written reports
      alone. But where . . . there are reasonable grounds to believe
      defendant insane, and defense counsel requests a hearing, it is error
      not to provide such a hearing.

In the present case, the parties and the trial court agreed that Santiago-Gonzalez

was competent to proceed. Both court-appointed experts agreed as to his

competency and set forth their conclusions in detailed written reports. Moreover,

defense counsel stipulated to the admissibility of the experts’ reports, did not

request a hearing, and did not want to offer additional testimony prior to the plea.

Under these circumstances, the trial court did not abuse its discretion in not

conducting a competency hearing, nor did it err in finding Santiago-Gonzalez

competent to proceed.

                         II. New Competency Evaluation

      Santiago-Gonzalez also argues that the trial court erred in failing to order a

new competency evaluation before the penalty phase began. He asserts that

incidents that occurred in the months leading up to the penalty phase provided


                                        - 29 -
reasonable grounds for the trial court to question his competency. However, the

State argues that the trial court was not obligated to reevaluate competency. We

agree that the trial court was not required to evaluate Santiago-Gonzalez’s

competency anew.

      Santiago-Gonzalez argues that signs of his incompetency began as soon as

August 16, 2016, the day after the guilty plea. On that day, he wrote a letter to the

trial court accusing the mental health assistant warden of taking his mail and other

personal property. Additionally, he points to conduct in October 2016, when he

wrote another letter to the trial court, this time stating that he was not committing

acts of self-harm to kill himself but rather to obtain a discharge from the mental

health treatment facility where he resided. The letter read: “I’ve been hurting

myself because I have been trying to get discharge [sic] from this place (mental

health) and the mental health’s doctors been playing games, so, I do that to make

them spend a lot of money on me in hospitals. (Like a payback.).” He continued:

             I am not crazy, I do not belong here! I am in my five senses
      and I really want to get over with this case!! To be 100%
      straight/honest with you. . . I won’t change my ways! Because I will
      keep doing what I do, and killing people if I have to! Remember, I
      already have a bunch of life sentences and 300 years to do in prison!
             I don’t really have nothing to lose!! [A]nd I don’t care who I
      hurt or kill anymore.

He further stated: “I have zero remorce [sic] for my crime and crimes. You know,

the State have not only one aggravator, but, a bunch of aggravators against me, to


                                        - 30 -
make me elegible [sic] for a death sentence!! That’s the only way I will stop

stabbing people.”

      On October 21, 2016, the trial court entered a commitment order for

continuing treatment because Santiago-Gonzalez refused voluntary treatment and

“poses a real and present threat of substantial harm to himself or others.” An

essential treatment order request completed in January 2017 found him “clinically

incompetent to consent to treatment.” The request noted a diagnosis of borderline

personality disorder and observed the following regarding recent incidents:

      Mr. Santiago-Gonzalez continues to inflict serious harm on his body.
      Pt was admitted to the self-harm observation unit on 10/1, 10/15, and
      11/30. On 10/16, pt was transported to Jacksonville Memorial for
      surgical evaluation to treat self-injury to the abdomen. On another
      occasion, 11/8, pt was transported to Dr. Bennett for surgical care
      following a 2 by 2” self-inflicted wound to his mid-abdomen. Finally
      on 12/20, pt was transported to Jacksonville Memorial Hospital
      following insertion of a pen into his abdomen. Pt recurrent self-injury
      poses a risk of permanent disability or death.

      The following summer, in July 2017, Santiago-Gonzalez had been recently

ordered into a mental health treatment facility for six months, during which time he

was to receive “court ordered medications to psychiatrically stabilize.” At a

July 17, 2017, motion hearing, defense counsel advised the court that Santiago-

Gonzalez was taking several psychotropic medications.




                                       - 31 -
      Santiago-Gonzalez also states that he had an “outburst” during that hearing.

While discussing penalty phase scheduling, the following exchange with the trial

court occurred:

      THE COURT: Okay. So knowing that, what I’m going to do is I’m
      going to set this for a firm trial date starting February the 5th. Okay?

      THE DEFENDANT: Fuck.

      THE COURT: We are going to block off three weeks.

      THE DEFENDANT: I’m not waiting until February, man. I don’t
      want no jury. Fuck all this. Y’all lied to me, man. Y’all lying to me.

      THE COURT: So, Mr. Santiago

      THE DEFENDANT: They lied to me, Your Honor.

      THE COURT: Mr. Santiago –

      THE DEFENDANT: They told me it was in August, something like
      that. I want to get done with this thing.

      THE COURT: Mr. Santiago –

      THE DEFENDANT: I don’t want to wait until February, Your Honor.

      THE COURT: Let me talk to you a moment. Okay?

      THE DEFENDANT: I bet they’re going to shoot me today, if you
      need it, man.

      THE COURT: Your attorneys have argued that you should be able to
      go to trial in August. The State is the one that has asked for a
      continuance. I’m the one who has decided to make the February term,
      not your attorneys.




                                       - 32 -
THE DEFENDANT: They told me if I pick the jury, I’m still going in
August. Now it’s not what it was.

THE COURT: So

THE DEFENDANT: See? I waive my penalty. I don’t want no jury
now, period. I don’t want to talk to them, period.

THE COURT: So, Mr. –

THE DEFENDANT: I ain’t crazy. I waive my penalty phase,
everything, everything here.

THE COURT: So, Mr. –

THE DEFENDANT: I want to waive everything right here. I’m not
going to change my mind no more.

THE COURT: So, Mr. Santiago, let me talk to you a moment.
Ultimately, you can decide to waive the jury if you want to. Either
way, the prosecutor says they’re not going to be ready before
February to argue that you should get the death penalty.
       I’m the one – your attorneys can’t control me. I’m like an
umpire in a baseball game, okay? They can’t control what I decide.
I’ve decided that I’m going to give the State until February to make
their strongest argument that you can get the death penalty and give
your attorneys the strongest argument that they can make that you
shouldn’t get it.
       Come February 5th I’m going to have a jury here, okay? You
can come in February 5th and start selecting that jury and go forward
with the jury trial. You can come in February 5th and say, “Judge, I
don’t want the jury anymore; I just want you, and I waive it.” Either
way, my intention would be to start the process. Okay?
       So I’m going to have both ready to go. Either you just have a
judge, or you have a jury decide. It will be up to you and your
attorneys to discuss. Okay, sir?
       All right. So February 5th will be the trial. Block out at least
three weeks on your calendar. And I would keep your calendar light
for the fourth week in case we go into the fourth week. Okay?



                                 - 33 -
           That being said, we need to get back at least for some case
      management and some more time to argue additional motions.

      Santiago-Gonzalez continued to be treated for mental illness and self-harm.

On December 13, 2017, a mental health treatment order noted a diagnosis of

bipolar disorder, mixed severe with psychotic features, and indicated: “Continues

to engage in self-injurious behaviors required multiple emergency air-flight to

trauma center, most recently as of 12/12/17.” There was no motion for a new

competency evaluation, and the penalty phase began on February 5, 2018. At the

beginning of the penalty phase, the trial court engaged in another detailed colloquy

with Santiago-Gonzalez to ensure a valid waiver of a penalty phase jury.

      Ensuring a defendant’s competency is a continuing obligation of the court.

See Nowitzke v. State, 572 So. 2d 1346, 1349 (Fla. 1990). “Once a defendant is

declared competent, the trial court must still be receptive to revisiting the issue if

circumstances change. However, only if bona fide doubt is raised as to a

defendant’s mental capacity is the court required to conduct another competency

proceeding.” Hunter v. State, 660 So. 2d 244, 248 (Fla. 1995) (citing Pericola v.

State, 499 So. 2d 864, 867 (Fla. 1st DCA 1986)). Moreover, “[a] presumption of

competence attaches from a previous determination of competency to stand trial.”

Id. (citing Durocher v. Singletary, 623 So. 2d 482, 484 (Fla. 1993)).




                                         - 34 -
         Santiago-Gonzalez relies on his ongoing history of mental illness and self-

injurious behavior as a basis for concluding that he was incompetent to plead guilty

and to proceed to the penalty phase.

         The State articulates several reasons why the trial court did not abuse its

discretion in refusing to order a new competency evaluation before the penalty

phase:

         (1) Appellant was competent to proceed and enter a guilty plea,
         despite his history of mental illness; (2) his defense team never
         challenged or raised a concern about his competency; (3) Appellant
         never acted unusually or inappropriately in the courtroom; (4) the trial
         court had many opportunities to observe his demeanor and behavior;
         (5) Appellant always responded intelligently and appropriately to the
         trial court and his counsel; (6) throughout the proceedings, Appellant
         exhibited rational thought; (7) no materially new information was
         presented to or observed by the trial court; and (8) the trial court had
         no reasonable basis or bona fide doubt as to Appellant’s competency.

The trial court did not err in proceeding to the penalty phase without ordering a

new competency evaluation.

                                    III. Competency

         Santiago-Gonzalez asserts that his case must be remanded to the trial court

for the entry of a written nunc pro tunc order finding him competent to proceed.

Although this Court has read Florida Rule of Criminal Procedure 3.212(b) as

requiring issuance of a written order of competency, see Mullens v. State, 197 So.

3d 16, 38 (Fla. 2016); Dougherty v. State, 149 So. 3d 672, 679 (Fla. 2014), the

failure to enter a written order was not brought to the trial judge’s attention and

                                          - 35 -
should therefore be remediable on appeal only if the failure constitutes

fundamental error. See, e.g., Calloway v. State, 210 So. 3d 1160, 1191 (Fla. 2017)

(“Unpreserved errors . . . are reviewed for fundamental error.”).4 Given the trial

court’s oral competency finding in this case, which is fully supported by the

record, Santiago-Gonzalez has not demonstrated fundamental error and is therefore

not entitled to relief on this issue. See id. (“Fundamental error must amount to a

denial of due process, and consequently, should [only] be found to apply where

prejudice follows.”).5

                                IV. Proportionality

      In determining whether Santiago-Gonzalez’s death sentence is a

proportionate penalty, this Court performs a comprehensive review of each case in

which the death sentence is imposed to determine whether the crime is among both

the most aggravated and the least mitigated of murders. Urbin v. State, 714 So. 2d




        4. Although Calloway was specifically addressing unpreserved errors
“made in closing statements,” 210 So. 3d at 1191, a party claiming error in failing
to strictly follow the dictates of a procedural rule should not be held to a lesser
standard.

       5. In Mullens, the Court did not address preservation, and therefore, did not
discuss the applicability of the fundamental error standard of review. Similarly, in
Dougherty, this Court did not address the fundamental error standard of review.
Although unpreserved, Dougherty’s claim that the trial court did not enter a written
order of competency was procedurally barred because Dougherty did not raise the
issue on direct appeal. 149 So. 3d at 676.


                                       - 36 -
411, 416 (Fla. 1998) (citing State v. Dixon, 283 So. 2d 1, 7 (Fla. 1973)). This

review consists of a qualitative, rather than a quantitative analysis of the basis for

each aggravating and mitigating circumstance. Id. “Further, in a proportionality

analysis, this Court will accept the weight assigned by the trial court to the

aggravating and mitigating factors.” Hayward v. State, 24 So. 3d 17, 46 (Fla.

2009).

      Santiago-Gonzalez argues that the death penalty is not a proportionate

sentence because he was sexually abused as a child and was sexually assaulted by

Burns before the stabbing. However, the trial court properly rejected the claim of

sexual assault by Burns as a mitigating circumstance where there was competent,

substantial evidence to do so. At the time that Santiago-Gonzalez stabbed Burns at

least sixty-four times, Burns was tied up and unable to defend himself. Moreover,

Santiago-Gonzalez asked to be placed in Burns’ cell and brought a concealed

homemade knife with him. “[F]inding or not finding a specific mitigating

circumstance applicable is within the trial court’s domain, and reversal is not

warranted simply because an appellant draws a different conclusion.” Cook v.

State, 542 So. 2d 964, 971 (Fla. 1989) (quoting Stano v. State, 460 So. 2d 890, 894

(Fla. 1984)). The trial court’s finding as a mitigating circumstance that Santiago-

Gonzalez was sexually abused as a child does not render his death sentence

disproportionate.


                                         - 37 -
      Santiago-Gonzalez’s sentence is proportionate to other cases where the

defendant stabbed the victim multiple times. In Guardado v. State, 965 So. 2d

108, 119 (Fla. 2007), this Court upheld the death sentence as proportionate where

the trial court found five aggravators, including prior violent felony, HAC, and

CCP, no statutory mitigators, and nineteen nonstatutory mitigators. Id. at 112. In

Duest v. State, 855 So. 2d 33 (Fla. 2003), the victim was also stabbed multiple

times; the trial court found multiple aggravators including prior violent felony and

HAC, no statutory mitigators, and twelve nonstatutory mitigators. Id. at 47. This

Court in Duest noted that similar to the present case, there was no statutory

mitigation, there was strong “evidence of an intentional killing,” and there was a

defenseless victim who was stabbed in the back. Id. at 48.

      Santiago-Gonzalez suggests that his case is similar to Morgan v. State, 639

So. 2d 6 (Fla. 1994). There, despite the defendant having stabbed the victim sixty

times, this Court concluded that the death penalty was disproportionate due to the

defendant’s age of sixteen years and the fact that he sniffed gasoline. Id. at 14.

However, as Santiago-Gonzalez concedes, he was not a teenager at the time of

Burns’ murder. Instead, he was a 33-year-old man with a lengthy prison record for

a host of violent crimes. Second, there were two aggravating factors in Morgan:

(1) murder during the course of a felony, and (2) HAC. In contrast, Santiago-

Gonzalez was sentenced to death upon a finding of four aggravating factors:


                                        - 38 -
(1) murder committed while under sentence of imprisonment; (2) prior violent

felony, (3) HAC, and (4) CCP. Three of these factors (prior violent felony, HAC,

and CCP) have repeatedly been identified as among the weightiest in Florida’s

death penalty scheme. See Damas v. State, 260 So. 3d 200, 216 (Fla. 2018);

Larkins v. State, 739 So. 2d 90, 95 (Fla. 1999).

      Similarly, Santiago-Gonzalez’s reliance on Nibert v. State, 574 So. 2d 1059

(Fla. 1990), is misplaced. In that case, this Court found the death sentence

disproportionate despite multiple stabbings and a finding of HAC. Id. at 1061.

However, Nibert is a single-aggravator case and is far less aggravated than

Santiago-Gonzalez’s case. Moreover, this Court concluded in Nibert that the trial

court improperly rejected evidence that Nibert was under extreme mental or

emotional disturbance and that his capacity to control his behavior was

substantially impaired. Id. at 1062-63. The serious aggravating factors far

outweigh the mitigating circumstances in this case, and Santiago-Gonzalez’s death

sentence is proportionate to other cases involving similar factual circumstances and

similar aggravating factors and mitigating circumstances.

                 V. Nexus Between Mitigation and the Murder

      Santiago-Gonzalez argues that the trial court improperly required a nexus

between certain mitigating circumstances and the murder of Burns. However, this

argument has no merit.


                                       - 39 -
      “Although a trial court cannot require a nexus between the crime and

mitigating evidence, the court may place mitigating evidence in context.” Fletcher

v. State, 168 So. 3d 186, 219 (Fla. 2015) (citing Martin v. State, 107 So. 3d 281,

318 (Fla. 2012)). Santiago-Gonzalez is not entitled to relief.

                         VI. Elements of Capital Murder

      Santiago-Gonzalez argues that the trial court’s finding that the aggravating

factors outweigh the mitigating circumstances is an “element” that must be found

beyond a reasonable doubt. Because the sentencing order did not make an express

finding “beyond a reasonable doubt,” he maintains that his death sentence is

invalid. This argument is without merit.

      “[S]ubsequent to our decision in Hurst v. State [202 So. 3d 40 (Fla. 2016)],

we already have receded from the holding that the additional Hurst v. State

findings are elements.” State v. Poole, 45 Fla. L. Weekly S41, S47 (Fla. Jan. 23,

2020), clarified, 45 Fla. L. Weekly at S141 (Fla. Apr. 2, 2020). In Rogers v. State,

285 So. 3d 872, 885-86 (Fla. 2019), we clarified:

            To the extent that in Perry v. State, 210 So. 3d 630, 633 (Fla.
      2016), we suggested that Hurst v. State held that the sufficiency and
      weight of the aggravating factors and the final recommendation of
      death are elements that must be determined by the jury beyond a
      reasonable doubt, we mischaracterized Hurst v. State, which did not
      require that these determinations be made beyond a reasonable doubt.
      Since Perry, in In re Standard Criminal Jury Instructions in Capital
      Cases [244 So. 3d 172 (Fla. 2018] and Foster, we have implicitly
      receded from its mischaracterization of Hurst v. State. We now do so
      explicitly. Thus, these determinations are not subject to the beyond a

                                        - 40 -
      reasonable doubt standard of proof, and the trial court did not err in
      instructing the jury.

      The sentencing order sets forth the trial court’s conclusions that the State

proved four aggravating factors beyond a reasonable doubt, and “the aggravating

circumstances in this case far outweigh the mitigating circumstances.” There is no

deficiency in the trial court’s findings.

                                       VII. CCP

      Santiago-Gonzalez challenges the trial court’s finding that the murder of

Burns was cold, calculated, and premeditated without pretense of moral or legal

justification (CCP).

             In order to establish the CCP aggravator, the evidence must
      show: (1) “the killing was the product of cool and calm reflection and
      not an act prompted by emotional frenzy, panic, or a fit of rage
      (cold)”; (2) “the defendant had a careful plan or prearranged design to
      commit murder before the fatal incident (calculated)”; (3) “the
      defendant exhibited heightened premeditation (premeditated)”;
      (4) “the defendant had no pretense of moral or legal justification.”

Williams v. State, 37 So. 3d 187, 195 (Fla. 2010) (quoting Franklin v. State, 965

So. 2d 79, 98 (Fla. 2007)); see § 921.141(6)(i), Fla. Stat. (2018). The trial court’s

finding of this aggravating factor is reviewed for competent, substantial evidence.

See England v. State, 940 So. 2d 389, 403 (Fla. 2006). “A determination of

whether CCP is present is properly based on a consideration of the totality of the

circumstances.” Gill v. State, 14 So. 3d 946, 962 (Fla. 2009) (citing Hudson v.




                                            - 41 -
State, 992 So. 2d 96, 116 (Fla. 2008)). In this case, competent, substantial

evidence supports the trial court’s finding.

      On the day of the murder, Santiago-Gonzalez arranged to be placed in

Burns’ cell, ostensibly to obtain help with legal matters. Santiago-Gonzalez and

Burns were previously inmates in the Santa Rosa Correctional Institution, and

Santiago-Gonzalez was aware that Burns was a convicted sex offender who was

imprisoned for committing acts against minors.

      That evening, Santiago-Gonzalez tore a sheet into multiple pieces for the

purpose of restraining Burns. Then, Santiago-Gonzalez either forced Burns to be

tied up or convinced Burns to allow himself to be tied up. After restraining Burns,

Santiago-Gonzalez began repeatedly stabbing him with a homemade knife that he

snuck into the cell. These actions satisfy the definition of cold, calculated, and

premeditated.

      Moreover, there was no pretense of moral or legal justification. Burns was

brutally stabbed while restrained and completely unable to defend himself. The

trial court’s finding of this aggravating factor is supported by competent,

substantial evidence.




                                        - 42 -
                                    VIII. HAC

      Santiago-Gonzalez also argues that there was insufficient evidence to justify

the trial court’s finding that the murder of Burns was especially heinous, atrocious,

and cruel (HAC). This Court has said:

             The HAC aggravator applies only in torturous murders—those
      that evince extreme and outrageous depravity as exemplified either by
      the desire to inflict a high degree of pain or utter indifference to or
      enjoyment of the suffering of another. Kearse v. State, 662 So. 2d
      677 (Fla. 1995); Cheshire v. State, 568 So. 2d 908 (Fla. 1990). The
      crime must be conscienceless or pitiless and unnecessarily torturous to
      the victim. Richardson v. State, 604 So. 2d 1107 (Fla. 1992); Hartley
      v. State, 686 So. 2d 1316 (Fla. 1996).

Guzman v. State, 721 So. 2d 1155, 1159 (Fla. 1998).

      “In determining whether the HAC factor was present, the focus should be

upon the victim’s perceptions of the circumstances as opposed to those of the

perpetrator.” Lynch v. State, 841 So. 2d 362, 369 (Fla. 2003). Moreover, “the

evidence must show that the victim was conscious and aware of impending death.”

Douglas v. State, 878 So. 2d 1246, 1261 (Fla. 2004) (citing Zakrzewski v. State,

717 So. 2d 488, 493 (Fla. 1998)).

      In particular, Santiago-Gonzalez argues that there was insufficient evidence

that Burns suffered a sufficient amount of pain to warrant a finding of HAC, and

that Burns could not have had an imminent fear of death because he allowed

himself to be tied up. These arguments are completely without merit, and

competent, substantial evidence supports the trial court’s finding of HAC.

                                        - 43 -
       In concluding that the murder of Burns satisfied the HAC aggravator, the

trial court stated:

              The evidence in this case reflects that the victim was stabbed at
       least 64 times while conscious and with his hands and feet bound.
       After the stabbing the victim remained conscious for several minutes,
       in extreme pain, and acutely aware of the fatal nature of his wounds,
       as evidenced by the hopelessness in his statements to Nurse Dukes
       and Captain Ficken. Moreover, the Defendant refused to allow
       correctional officers into the cell to help the victim until they began
       recording the aftermath of the incident, thereby prolonging the
       victim’s pain and suffering as he laid bound in a pool of his own
       blood. Both during and after the merciless attack, the victim was
       faced with the reality that his death was imminent. And, the
       Defendant was totally indifferent to the victim’s suffering.

       The fact that Santiago-Gonzalez stabbed Burns a minimum of sixty-four

times is highly relevant to this analysis. This Court has consistently concluded that

a finding of HAC was appropriate in cases where the victim was repeatedly

stabbed. See Guardado v. State, 965 So. 2d 108, 116-17 (Fla. 2007); Guzman, 721

So. 2d at 1159-60; Finney v. State, 660 So. 2d 674, 685 (Fla. 1995); Pittman v.

State, 646 So. 2d 167, 173 (Fla. 1994); Atwater v. State, 626 So. 2d 1325, 1329

(Fla. 1993). Moreover, the extremely brutal, repeated stabbing of Burns—while

Burns’ hands and feet were bound—satisfies the requirement of “extreme and

outrageous depravity as exemplified” by Santiago-Gonzalez’s “utter indifference

to or enjoyment of” Burns’ suffering. Guzman, 721 So. 2d at 1159 (citing Kearse,

662 So. 2d 677; Cheshire, 568 So. 2d 908).




                                        - 44 -
         Santiago-Gonzalez’s argument that the record does not demonstrate a

sufficient level of pain and knowledge of impending death is soundly refuted by

the record. The trial court’s conclusions are supported by the testimony of the

trauma surgeon who treated Burns, who testified that Burns experienced an

“extreme level of pain and discomfort and required all of the aggressive support

with pain medicine that we could give him.” Moreover, the record contains

testimony regarding Burns’ own statements after he sustained no fewer than sixty-

four stab wounds in the neck, chest, abdomen, and back. These statements

revealed Burns’ belief that he was going to die. Competent, substantial evidence

supports the trial court’s finding of HAC.

                         IX. Eligibility for the Death Penalty

         Santiago-Gonzalez argues that his death sentence is invalid because he did

not plead to a crime that is eligible for the death penalty. He maintains that in

order to be sentenced to death, the State must specifically allege in the indictment

the aggravating factors that support a death sentence. This argument is without

merit.

         As Santiago-Gonzalez conceded in his initial brief, this Court has previously

rejected this argument. In Pham v. State, 70 So. 3d 485, 496 (2011), this Court

observed that it “has repeatedly rejected the argument that aggravating

circumstances must be alleged in the indictment.” This Court explained: “A


                                         - 45 -
defendant is not entitled to notice of every aggravator in the indictment because the

aggravators are clearly listed in the statutes. Id. (citing Lynch v. State, 841 So. 2d

362, 378 (Fla. 2003)).

                                 X. Hurst v. Florida

      Santiago-Gonzalez contends that in light of the United States Supreme

Court’s decision in Hurst v. Florida, 136 S. Ct. 616 (2016), his plea to first-degree

murder cannot constitutionally be punished by death. However, Santiago-

Gonzalez waived a penalty phase jury. “[A] defendant who has waived the right to

a penalty phase jury is not entitled to relief under Hurst v. Florida.” Davis v. State,

207 So. 3d 177, 212 (Fla. 2016).

                          XI. Sufficiency of the Evidence

      This Court has a mandatory obligation to independently review the

sufficiency of the evidence underlying Santiago-Gonzalez’s conviction, and the

“customary review” evaluates whether the conviction is supported by competent,

substantial evidence. Ocha v. State, 826 So. 2d 956, 965 (Fla. 2002). However,

where a defendant pleads guilty and waives a jury trial, the relevant inquiry is not

whether there was competent, substantial evidence, but whether the defendant

knowingly, intelligently, and voluntarily entered the guilty plea. See Tanzi v. State,

964 So. 2d 106, 121 (Fla. 2007). “Proper review requires this Court to scrutinize

the plea to ensure that the defendant was made aware of the consequences of his


                                         - 46 -
plea, was apprised of the constitutional rights he was waiving, and pled guilty

voluntarily.” Ocha, 826 So. 2d at 965 (citing LeDuc v. State, 365 So. 2d 149, 150

(Fla. 1978)).

      The trial court properly conducted a lengthy plea colloquy at the change of

plea hearing. This colloquy reflected Santiago-Gonzalez’s understanding of the

“consequences of his plea” and “the constitutional rights he was waiving as a

result.” Russ v. State, 73 So. 3d 178, 200 (Fla. 2011). Santiago-Gonzalez stated he

understood that by pleading guilty to the murder of Burns, he would be punished

by either death or life imprisonment. He also stated he understood that a guilty

plea would waive the first phase of trial, leaving only the matter of punishment to

be determined. The State provided a factual basis for the murder, to which the

defense conceded for the purpose of the guilty plea. The trial court’s detailed

questioning and Santiago-Gonzalez’s responses were sufficient to satisfy the

requirement of a knowing, intelligent, and voluntary plea.

                                 CONCLUSION

      For these reasons, we affirm Santiago-Gonzalez’s conviction of first-degree

murder and sentence of death.

      It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ.,
concur.
COURIEL, J., did not participate.


                                       - 47 -
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Union County,
     David P. Kreider, Judge - Case No 632014CF000080CFAXMX

Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender,
Second Judicial Circuit, Tallahassee, Florida,

      for Appellant

Ashley Moody, Attorney General, and Janine D. Robinson, Assistant Attorney
General, Tallahassee, Florida,

      for Appellee




                                    - 48 -
