       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 16, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D16-664
                          Lower Tribunal No. 04-5205
                             ________________


                            Michael Hernandez,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, John
Schlesinger, Judge.

      Carlos J. Martinez, Public Defender, and Maria Lauredo, Chief Assistant
Public Defender, and Jonathan Greenberg, Assistant Public Defender, for
appellant.

      Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant
Attorney General, for appellee.


Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.

     SALTER, J.
      Michael Hernandez appeals his amended sentencing order entered following

this Court’s opinion vacating in part and remanding his conviction and sentence in

Hernandez v. State, 117 So. 3d 778 (Fla. 3d DCA 2013) (“Hernandez I”). In

accordance with that opinion, Hernandez was resentenced on his first-degree

murder conviction as required by Miller v. Alabama, 567 U.S. 460 (2012). On

remand, the trial court applied Florida’s juvenile sentencing laws enacted in 2014.1

      For the reasons which follow, we affirm the amended sentencing order as to

Hernandez’s sentence for first-degree murder, Count I, and we affirm in part and

reverse and remand in part his sentence for attempted first-degree murder on Count

II.

      I. Background

             A. Hernandez I

      “On September 24, 2008, a jury found Michael Hernandez guilty of the first-

degree murder of a fourteen-year-old middle school student and the attempted

first-degree murder of a thirteen-year-old student. At the time of his crimes,

Hernandez was fourteen years old. The trial court sentenced Hernandez to life

without the possibility of parole for first-degree murder and to a consecutive term

of thirty years for attempted first-degree murder.” Hernandez I, 117 So. 3d at 779.



1 Chapter 2014-220, Laws of Florida, amending section 775.082, Florida Statutes,
and adding new sections 921.1401 and 921.1402, Florida Statutes.

                                         2
      In his appeal from the convictions and sentences, Hernandez challenged his

sentence for the first-degree murder as violative of the United States and Florida

Constitutions, and he raised three issues directed to the validity of the convictions

for the counts of first-degree murder and attempted first-degree murder. He did

not challenge, and thus this Court did not address, the validity of his consecutive

thirty-year sentence for the attempted first-degree murder.

      The convictions and sentences were affirmed in Hernandez I, with the single

exception already described: “Hernandez’s sentence of life without the possibility

of parole for first-degree murder is unconstitutional because it was mandatorily

imposed. Accordingly, we vacate his sentence for first-degree murder and remand

for resentencing on the first-degree murder conviction in accordance with Miller.”

Hernandez I, 117 So. 3d at 786.

             B. The Resentencing and This Appeal

      In 2016, the trial court conducted a three-day remanded sentencing hearing

on the first-degree murder conviction. In the interim between Hernandez I and the

resentencing hearing, the Florida Legislature enacted chapter 2014-220, Laws of

Florida, effective July 1, 2014, amending the sentencing scheme applicable to

juveniles convicted of murder.2 In particular, the amendments incorporated in new

2 The Supreme Court of Florida has approved the application of the new statutes to
juvenile sentences that are found to be unconstitutional under Miller, even if the
crime was committed before the effective date of the new statutes. Horsley v.
State, 160 So. 3d 393, 403-405 (Fla. 2015).

                                         3
section 921.1401, Florida Statutes (2014), the factors required to be considered

under the United States Supreme Court’s decision in Miller:

      921.1401. Sentence of life imprisonment for persons who are
      under the age of 18 years at the time of the offense; sentencing
      proceedings.—

       (1) Upon conviction or adjudication of guilt of an offense described
      in s. 775.082(1)(b), s. 775.082(3)(a) 5., s. 775.082(3)(b) 2., or s.
      775.082(3)(c) which was committed on or after July 1, 2014, the court
      may conduct a separate sentencing hearing to determine if a term of
      imprisonment for life or a term of years equal to life imprisonment is
      an appropriate sentence.

       (2) In determining whether life imprisonment or a term of years
      equal to life imprisonment is an appropriate sentence, the court shall
      consider factors relevant to the offense and the defendant's youth and
      attendant circumstances, including, but not limited to:

       (a) The nature and circumstances of the offense committed by the
      defendant.

       (b) The effect of the crime on the victim's family and on the
      community.

       (c) The defendant's age, maturity, intellectual capacity, and mental
      and emotional health at the time of the offense.

       (d) The defendant's background, including his or her family, home,
      and community environment.

       (e) The effect, if any, of immaturity, impetuosity, or failure to
      appreciate risks and consequences on the defendant's participation in
      the offense.

       (f) The extent of the defendant's participation in the offense.

       (g) The effect, if any, of familial pressure or peer pressure on the
      defendant's actions.


                                          4
       (h) The nature and extent of the defendant's prior criminal history.

       (i) The effect, if any, of characteristics attributable to the defendant's
      youth on the defendant's judgment.

       (j) The possibility of rehabilitating the defendant.

      The resentencing hearing was conducted by the trial court without a jury.

The court heard testimony and reviewed evidence presented by the prosecution, a

statement by the family of the murder victim, testimony by the victim of the

attempted murder, evidence regarding Hernandez’s family members, expert

testimony regarding Hernandez’s mental state at the time of the murder and at the

time of the resentencing, tape recorded calls of conversations by Hernandez with

family members and a friend, and testimony by Hernandez himself. Following the

hearing, the trial court entered the 27-page amended sentencing order with detailed

findings on the factors specified in section 921.1401.

      The horrific circumstances of the murder, attempted murder, and

Hernandez’s premeditation are recounted in Hernandez I and need not be repeated

here. The amended sentencing order again sentenced Hernandez to life in state

prison without parole on the murder count, but included a right to a review of his

sentence after 25 years, as provided by sections 921.1402(2)(a) and

775.082(1)(b)1. The court also again sentenced Hernandez to a consecutive term




                                          5
of imprisonment for 30 years on the attempted murder count.               This appeal

followed.

      II.    Issues and Standard of Review

      Hernandez raises four issues in this appeal:

      1. Whether the Sixth Amendment to the United States Constitution requires

a jury, rather than the trial court, to consider and decide the issues of fact required

by the 2014 juvenile sentencing statutes for the imposition of a life sentence.

      2. Whether the victim impact testimony during the resentencing violated

Hernandez’s rights under the Eighth and Fourteenth Amendments.

      3. Whether the trial court’s consideration of testimony at the resentencing

hearing regarding Hernandez’s musical interests while in prison was fundamental

error and violated his First Amendment rights.

      4. Whether Hernandez’s 30-year sentence on the attempted murder

conviction, to be served consecutive to the life sentence on the murder count,

amounts to a de facto life sentence in violation of Graham v. Florida, 560 U.S. 48

(2010), Henry v. State, 175 So. 3d 675 (Fla. 2015), and Stephenson v. State, 197

So. 3d 1126 (Fla. 3d DCA 2016).

      The constitutional questions are reviewed de novo. Henry, 175 So. 3d at

676-77. Unpreserved issues raised here but not in the trial court are reviewed for

fundamental error. § 924.051(3), Fla. Stat. (2016); Jean-Baptiste v. State, 155 So.



                                          6
3d 1237, 1240 (Fla. 4th DCA 2015). The trial court’s findings of fact on the

statutory factors listed in section 921.1401 are reviewed for the existence of

competent, substantial evidence in the record.

      III.   Analysis

             A.    First Issue: Apprendi, Blakely, Hurst

      Hernandez argues that the Sixth Amendment to the United States

Constitution; the United States Supreme Court’s decisions in Apprendi v. New

Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004);

and the Florida Supreme Court’s decision in Hurst v. Florida, 202 So. 3d 40 (Fla.

2016), collectively require that a jury weigh and determine the evidence regarding

the sentencing factors in section 921.1401, rather than a judge alone. Although

Hurst applies in Florida death penalty cases, Hernandez contends that the weighing

of aggravating circumstances and mitigating factors was “necessary for imposition

of” a life sentence rather than a term of years, and thus constitutionally required a

jury finding under Apprendi.

      This Court held otherwise in Beckman v. State, 230 So. 3d 77, 94-97 (Fla.

3d DCA 2017),3 and we have since applied that analysis in another juvenile


3  Beckman is seeking review of that decision in the Florida Supreme Court;
Beckman v. State, No. SC17-2060 (Fla. filed Nov. 21, 2017). The Court has not
yet ruled on Beckman’s petition for review. See also Copeland v. State, 43 Fla. L.
Weekly D341 (Fla. 1st DCA Feb. 9, 2018), pet. for review filed, No. SC18-461
(Fla. March 19, 2018).

                                         7
resentencing case, Brown v. State, 231 So. 3d 17 (Fla. 3d DCA 2017). We reject

Hernandez’s arguments on this issue as well, based on our opinion in Beckman.

              B.    Second Issue: Victim Impact Testimony

         Hernandez argues that the extensive victim impact evidence presented by

the State violated his constitutional rights under the Eighth and Fourteenth

Amendments to the United States Constitution; the United States Supreme Court’s

decision in Payne v. Tennessee, 501 U.S. 808 (1991); Article I, § 16(b) of the

Florida Constitution; and the decisions of the Florida Supreme Court in Wheeler v.

State, 4 So. 3d 599 (Fla. 2009), and Sexton v. State, 775 So. 2d 923 (Fla. 2000).

Hernandez properly concedes that this issue was not preserved below and is

reviewed for fundamental error. Cromartie v. State, 70 So. 3d 559, 563-64 (Fla.

2011).

      Subparagraphs 921.1401(2) (a) and (b) of the juvenile resentencing statute

direct the trial court to consider the “nature and circumstances of the offense

committed,” and the “effect of the crime on the victim’s family and on the

community.” Additional factors include consideration of the juvenile defendant’s

“background, including his or her family, home and community background,” and

the “possibility of rehabilitating the defendant,” subparagraphs 2(d) and (j),

respectively, of the statute.




                                        8
      Hernandez has not demonstrated fundamental error in the victim and

character/behavioral testimony presented at the resentencing hearing. Hernandez’s

contention that the evidence was offered for the prohibited purpose of establishing

“future dangerousness”4 is unavailing. The trial court did not abuse its discretion

in allowing evidence of Hernandez’s continued enthusiasm while incarcerated for

televised or video recordings about serial killers, mutilation of victims, and sadistic

killings, as that evidence is relevant to the “possibility of rehabilitating the

defendant” under the juvenile sentencing statute. Evidence regarding the impact of

the crimes themselves and Hernandez’s disregard for the victims and their families

were proper topics for proof and consideration under Article I, section 16(b), of the

Florida Constitution.

             C.     Third Issue: Hernandez’s Interest in Music

      Hernandez next asserts that the First Amendment precluded the trial court

from considering his preference for “death/metal music” (“usually played for him

into the phone by his parents,” the trial court found), including songs with lyrics

detailing “murder/torture inflicted by knives, including the slashing of victims’

4  Hernandez relies on Delhall v. State, 95 So. 3d 134, 168-69 (Fla. 2012), for this
argument. Delhall, however, was a death penalty case in which the Florida
Supreme Court found that the prejudicial effect on the jury during the guilt and
sentencing phases of the case was error “committed by the overzealous
prosecutorial argument” that the defendant had always been violent and cannot be
fixed, such that “his mitigation is nothing but excuses.” Id. at 169. As already
noted, Hernandez’s resentencing hearing was non-jury, and his guilt was not at
issue.

                                          9
throats.” Hernandez’s syllogism is logical: (1) music is protected by the First

Amendment, citing Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989); (2)

artistic and moral judgments about artistic creations, including music, “are for the

individual to make, not for the Government to decree,” quoting Brown v.

Entertainment, 564 U.S. 786, 790 (2011); (3) the First Amendment precludes such

evidence introduced at a sentencing hearing unless it is relevant to the sentencing

proceeding, citing Dawson v. Delaware, 503 U.S. 159, 166-68 (1992); (4) the

evidence of Hernandez’s musical interests did not tend to prove an aggravating

circumstance or rebut Hernandez’s mitigation evidence; and therefore (5) the

admission and consideration of that evidence violated the First Amendment,

constitutes fundamental error,5 and requires reversal.

      We find no error, much less fundamental error, on this point, because

Hernandez’s continued interest in violent music and lyrics replicating the horrific

murder and attempted murder he committed were directly relevant to his lack of

remorse, his indifference to the suffering of the victims and their families, and

Hernandez’s prospects for rehabilitation. § 921.1401 (b), (j). In short, predicates

(3) and (4) of Hernandez’s syllogism cannot support his conclusion, (5); we find

no error and no basis for reversal on this issue.

5  The evidence of Hernandez’s musical interests was not the subject of a timely
objection during the resentencing hearing, and this alleged constitutional issue is
thus reviewed for fundamental error. Robinson v. State, 442 So. 2d 284, 285-86
(Fla. 2d DCA 1983).

                                          10
            D.     Fourth Issue: Consecutive Sentence, Count II

      In this fourth and final issue, Hernandez contends that the amended

sentencing order violates Graham and is unconstitutional because of the 30-year

consecutive term of years sentence imposed by the trial court on the attempted

murder conviction, Count II. Preliminarily, we observe that Hernandez did not

raise this issue in his appeal in Hernandez I, with the result that our opinion and

mandate in that case may bar this argument:

      [W]e vacate his sentence for first-degree murder and remand for
      resentencing on the first-degree murder conviction in accordance with
      Miller. In all other respects, we affirm.

Hernandez I, 117 So. 3d at 786.

      The trial court nonetheless addressed the sentence on Count II, perhaps out

of an abundance of caution:

            Although not expressly mandated by the Third District Court of
      Appeal to readdress the Attempted First Degree Murder sentence,
      which the appellate court affirmed, this Court notes that nothing
      presented at the resentencing hearing changes or otherwise causes
      doubt in this Court’s mind as to the propriety of the 30 year
      consecutive sentence for the Attempted Murder of [A.M.], which
      remains undisturbed.6

      In the three-year interval between Hernandez I (2013) and the 2016

resentencing, the new juvenile sentencing statutes became effective (2014), and the

Florida Supreme Court evaluated “aggregate sentencing schemes” in other cases

6 Amended Resentencing Order (Case No. F04-5205, Eleventh Judicial Circuit,
Miami-Dade County, March 21, 2016) at 26.

                                        11
for compliance with Graham (see, e.g., Henry v. State, 175 So. 3d 675 (Fla. 2015)

(remanding for resentencing after consecutive sentences were imposed for a

juvenile non-homicide offender totaling 90 years).        We address Hernandez’s

argument on this point on the basis of these developments and Graham’s

constitutional requirement that a juvenile’s sentence for a non-homicide offense7

include a “meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.” Graham, 560 U.S. at 75; Henry, 175 So. 3d at 679

(applying Graham to non-homicide sentences aggregating 90 years).

      Hernandez, incarcerated since age 14, is entitled to the requisite twenty-five

year review when he will be over 39 years old, but only as to his conviction for

first-degree murder, Count I. Because his sentence on the attempted murder count

was imposed consecutively to the life sentence for first-degree murder, the

attempted murder sentence could imprison him through age 69 even if released

from the Count I sentence after the 25-year review.

      We agree with Hernandez that this violates Graham and Henry, but only

insofar as it omits a separate 25-year right of review on the Count II sentence.

Section 921.1402(2)(b) of the juvenile sentencing law provides that “[a] juvenile

offender sentenced to a term of more than 25 years under s. 775.082(3)(a)5.a.” is

entitled to a review of his or her sentence after 25 years. Section 775.082(3)(a)5.a.

7 Attempted first-degree murder is a non-homicide offense. Gridine v. State, 175
So. 3d 672, 674 (Fla. 2015).

                                         12
includes a sentence imposed upon a person who “attempted to kill the victim and is

sentenced to a term of imprisonment of more than 25 years,” granting the

entitlement to a review after 25 years under section 921.1402(2)(b).

         Hernandez is thus entitled to a review on the Count II sentence after serving

25 years on that count, though this may not be meaningful if he is not released

from further imprisonment on his Count I life sentence upon the 25-year review on

that sentence. We disagree with Hernandez’s contention, however, that the Count

II sentence amounts to “a de facto life sentence for a non-homicide offense” under

Henry, such that the consecutive thirty-year sentence must be vacated and a new

resentencing conducted on that conviction. Henry, as noted, reversed consecutive

sentences imposed on a juvenile for non-homicide offenses, but aggregating 90

years.


         Other cases relied upon by Hernandez involve aggregate sentences imposed

upon juvenile non-homicide offenders that are easily distinguishable from

Hernandez’s crimes and his separate sentences for crimes of first-degree murder

and attempted first-degree murder. Kelsey v. State, 206 So. 3d 5 (Fla. 2016) (four

concurrent sentences of 45 years each on non-homicide convictions, remanded for

resentencing under the juvenile sentencing statute); Stephenson v. State, 197 So.

3d 1129 (Fla. 3d DCA 2016) (consecutive sentences aggregating 90 years for

crimes committed as a juvenile; remanded for resentencing per Henry and section


                                           13
921.1402); Burrows v. State, 219 So. 3d 910 (Fla. 5th DCA 2017) (concurrent 25-

year sentences imposed for juvenile who committed non-homicide offenses;

reversed and remanded to provide for review under the juvenile sentencing

statutes).

       On this issue, we find a single meritorious point. We reverse and remand

for the ministerial step of amending the sentence for attempted murder, Count II, to

provide for a review after 25 years of time served on that sentence, to fulfill the

requirement in section 921.1402(2)(b), Florida Statutes (2014), operative only at

such time (if any) as Hernandez is released from further imprisonment on his

Count I sentence and his consecutive Count II sentence actually commences.8

Hernandez need not be present for this ministerial amendment to his Count II

sentence upon remand.

       IV.   Conclusion

       The trial court diligently conducted the resentencing hearing pursuant to our

mandate in Hernandez I and the requirements of the juvenile sentencing statutes.

That court’s carefully-considered findings were detailed and supported by

competent, substantial evidence. We reverse and remand a single and limited

8  For the avoidance of doubt, we are not authorizing or requiring a single review
of both sentences (on Count I and on Count II) after Hernandez has served 25 years
on the Count I sentence. That question is pending before the Florida Supreme
Court in Purdy v. State, No. SC17-843 (Fla. filed May 5, 2017) (certified as a
question of great public importance; oral argument held Dec. 6, 2017) (reviewing
Purdy v. State, 42 Fla. L. Weekly D967 (Fla. 5th DCA 2017).

                                         14
element of the resentencing order as it relates to Count II. We conclude that the

imposition of a consecutive 30-year sentence for that Count, analyzed in light of

Graham and the juvenile sentencing statute, requires a separate entitlement to

review after 25 years of imprisonment on Count II, should that separate sentence

actually commence.




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