       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                        BROOKS JOHN BELLAY,
                             Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D17-3866

                             [July 10, 2019]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Lawrence Michael Mirman, Judge; L.T. Case No.
431980CF000430A.

   Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public
Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Deborah Koenig,
Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

    Appellant Brooks Bellay appeals his life sentence, imposed following a
resentencing hearing pursuant to Miller v. Alabama, 567 U.S. 460 (2012),
and section 921.1401, Florida Statutes (2017). Appellant argues that his
life sentence is an unconstitutional cruel and unusual punishment
because “the evidence did not establish that he was permanently
incorrigible.” Appellant also maintains that he was entitled to elect to be
resentenced under the 1983 sentencing guidelines.           We find that
Appellant’s sentence is constitutional, and that Appellant was sentenced
under the proper law. As discussed below, we affirm.

                               Background

   In 1979, a four-year-old girl was reported missing.        A search
commenced, in which Appellant, then fourteen years old, participated as
a volunteer. Eventually, the child was found dead, naked, and partially
covered in blood in a wooded area near her home. The autopsy revealed
that “the cause of death [was] blunt trauma to the abdomen leading to
exsanguination. The four year old child had a lacerated liver, fractured
ribs, and a contusion to her sternal area. Very significant force produced
these injuries.”

   Appellant ultimately admitted to killing the child. He was initially
charged with first-degree murder. Following negotiations with the State,
Appellant waived his right to request a youthful offender sentence, and the
State dropped the first-degree murder charge in return for the Appellant
pleading guilty to second-degree murder. Per the “open plea,” the
determination of the sentence was left to the trial court; it sentenced
Appellant to life imprisonment.

    Following the United States Supreme Court’s opinion in Miller and the
subsequent enactment of section 921.1401, Florida Statutes, Appellant
filed a motion for postconviction relief, contending that his life sentence as
a juvenile offender violated the Eighth Amendment of the U.S. Constitution
and that, per Miller and section 921.1401, he was entitled to an
individualized resentencing hearing.         With the State’s consent, a
resentencing hearing was scheduled. 1

   Prior to that hearing, defense counsel filed a motion asking for
Appellant to be sentenced as a Youthful Offender or under the 1983
sentencing guidelines. The trial court denied both requests. 2

    At the resentencing hearing, the State focused on the disturbing nature
of the offense, and the substantial impact that the abduction, search, and
murder had upon the victim’s family and community.

   The defense pointed to Appellant’s family life and purported remorse at
the time of the crime. The defense’s primary focus, however, was on
Appellant’s transformation while incarcerated. The defense argued that,
in 1997, Appellant commenced meaningful participation in a religious

1 At the time of Appellant’s resentencing hearing, Atwell v. State, 197 So. 3d 1040
(Fla. 2016), entitled Appellant to resentencing even though his life sentence
included the possibility of parole. Today, Atwell is no longer good law. See
Franklin v. State, 258 So. 3d 1239, 1240 (Fla. 2018); State v. Wesby, 262 So. 3d
818 (Fla. 4th DCA 2019); see also Nelms v. State, 263 So. 3d 88, 91 (Fla. 4th DCA
2019) (concluding that the defendant’s new sentence was properly imposed
pursuant to Miller and Atwell, while recognizing that the defendant’s original
sentence (which offered the possibility of parole) would not now be considered a
violation of Miller).
2 Appellant does not challenge the trial court’s ruling with respect to the request

for youthful offender sentencing (the denial of which was premised on Appellant’s
affirmative waiver at the time of the plea).

                                        2
program that his witnesses claim resulted in a “spiritual transformation,”
leading to his becoming, in the words of his classification officer, “the
perfect inmate.”

  The court issued a written resentencing order following the hearing.
The order first discussed Miller, noting that the Court’s opinion

      acknowledged that a sentencing court might encounter the
      “rare juvenile offender” for whom rehabilitation is impossible
      and life without parole is justified. Further, even if a court
      considers a child’s age before sentencing him or her to a
      lifetime in prison that sentence still violates the Eighth
      Amendment for a child whose crime reflects “unfortunate yet
      transient immaturity.” Life without parole should only be
      imposed on juvenile offenders whose crimes reflect permanent
      incorrigibility and irreparable corruption.

The trial court’s order next detailed its consideration of “all” of the
sentencing factors set forth in section 921.1401. The court first stated
that “[t]o say this crime is horrific is an understatement. It is one of the
most heinous crimes that has ever occurred in the history of this
jurisdiction . . . .” The order then discusses Appellant’s behavior
immediately before and after the “shockingly evil” murder; witness
characterizations of Appellant during this time frame; circumstances
surrounding the murder; and Appellant’s behavior in prison (both before
and after the 1997 “spiritual transformation”). Concluding that “there is
no doubt whatsoever that this Defendant is the rare juvenile offender who
exhibits such permanent incorrigibility and irreparable corruption that
rehabilitation is impossible and a life sentence without meaningful parole
is justified,” the trial court resentenced Appellant to life in prison.

    The court also found that, for statutory purposes relating to entitlement
to sentence review, Appellant “is a person who actually killed and intended
to kill the victim” and that the crime was committed while Appellant was
a juvenile. The court thus determined that Appellant is currently “eligible
for sentence review.” The appeal of the resentencing order is before us.

                                 Analysis

   We review the constitutionality of a sentence de novo. Nelms, 263 So.
3d at 90 (citing St. Val v. State, 174 So. 3d 447, 448 (Fla. 4th DCA 2015)).

   Under the Supreme Court’s decision in Miller, the Eighth Amendment’s
prohibition on cruel and unusual punishment is violated when a

                                     3
sentencing scheme mandates a sentence of life in prison without the
possibility of parole for a juvenile offender. Miller, 567 U.S. at 465.
However, Miller is not a per se prohibition on imposing a life without parole
sentence. Nelms, 263 So. 3d at 90 (citing Horsley v. State, 160 So. 3d 393
(Fla. 2015)). Rather, Miller requires the court to first consider the juvenile
offender’s “youth and attendant characteristics” before imposing such a
sentence. Miller, 567 U.S. at 483.

    The Florida Supreme Court later expanded Miller and applied it to a
discretionary sentencing scheme “when the sentencing court, in exercising
that discretion, was not required to, and did not ‘take into account how
children are different and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.’” Landrum v. State,
192 So. 3d 459, 460 (Fla. 2016) (quoting Miller, 567 U.S. at 480).

    In response to Miller and Graham v. Florida, 560 U.S. 48, 75 (2010),
which preclude life without parole sentences for juvenile non-homicide
offenders, the Florida Legislature adopted a new juvenile offender
sentencing scheme in chapter 2014-220, Laws of Florida (effective for
offenses committed by a juvenile offender after July 1, 2014). The new
sentencing provisions are codified in sections 775.082, 921.1401, and
921.1402 of the Florida Statutes. See Nelms, 263 So. 3d at 89.
Specifically, section 775.082 was amended to provide the statutory
penalties for juvenile offenders; section 921.1401 was created to set forth
procedures for individualized sentencing hearings to determine whether a
juvenile offender should be sentenced to life imprisonment; and section
921.1402 was created to allow for subsequent judicial review of a juvenile
offender’s sentence. Horsley, 160 So. 3d at 401.

    Section 921.1401(2), Florida Statutes, provides that when determining
if a juvenile offender should be sentenced to life imprisonment, “the court
shall consider factors relevant to the offense and the [juvenile offender’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

                                      4
          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.
      (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.

§ 921.1401(2). The trial court properly considered each of these factors
when it resentenced Appellant.

   On appeal, Appellant argues that his “resentencing, 38 years after the
commission of the offense, necessarily required the court to determine
whether [Appellant]—based upon his performance in prison—‘ha[d] been
rehabilitated and is reasonably believed to be fit to reenter society.’”

   The question as to whether a juvenile has in fact been rehabilitated
comes from section 921.1402(7), which applies to subsequent judicial
review of a sentence. Thus, Appellant’s argument, made in the context of
the resentencing process, lacks merit. For resentencing, Appellant’s
“performance in prison” was one part of the equation in considering
element (j), “[t]he possibility of rehabilitating the defendant.”           §
921.1401(2), Fla. Stat. Such evidence is not, however, dispositive of a trial
court’s resentencing determination. That factor is only one of the ten in
the sentencing statute. While it may weigh in Appellant’s favor, this does
not make the life sentence unconstitutional. Appellant will be entitled to
present evidence of the full extent of his rehabilitation in prison at a
sentence review hearing.

   We note, however, that in addressing “the possibility of rehabilitating
the defendant” pursuant to section 921.1401(2)(j), the trial court appears
to have made findings as to whether Appellant has demonstrated maturity
and rehabilitation while incarcerated, pursuant to section 921.1402(6)(a).
Specifically, the resentencing order states that “[t]he court firmly believes
that [Appellant’s] character and propensity for violence is fixed. The court
does not believe he can be rehabilitated. Rather, [Appellant] is properly
described as being irreparably corrupt.” The resentencing order also
states that “[Appellant] possesses an immutable, dangerous and violent
character.” Moreover, the trial court afforded little weight to the extensive
and unrebutted evidence of Appellant’s rehabilitation, characterizing it as
merely “demonstrat[ing] that [Appellant] has developed an ability to behave
properly in a confined, closely controlled setting (referred to as ‘walking

                                     5
the razor’s edge’), and nothing more.” The court’s statements with respect
to whether Appellant has demonstrated maturity and rehabilitation—
factors to be considered at his review hearing—were not supported by
competent substantial evidence.

   This error, however, is harmless. The trial court conducted the hearing
required by the statute and considered all the juvenile offender sentencing
factors before determining that a life sentence was appropriate. This
holding is supported by the trial court’s findings. The court did not impose
a non-discretionary sentence of life without parole in violation of Miller,
and the procedure employed by the court satisfied the dictates of Landrum
by considering how juveniles are different.

   Significantly, the trial court also found Appellant “eligible for sentence
review.” We have held that a sentence of life imprisonment with judicial
review is constitutional. Nelms, 263 So. 3d at 90-91; Cutts v. State, 225
So. 3d 244, 245 (Fla. 4th DCA 2017). A juvenile offender sentenced to life
imprisonment under section 775.082(3)(a)5.a. or section 775.082(3)(b)2.a.
is entitled to a review of his or her sentence after twenty-five years. §
921.1402(2)(b).

   During the judicial review, in determining if it is appropriate to modify
the sentence, the trial court will look to a different set of factors than those
articulated in the sentencing statute. The sentence review factors are set
forth in section 921.1402(6). These factors look not only at circumstances
and events leading up to and including the offense, but also include
considerations of who the juvenile offender is at the time of the judicial
review, i.e., whether the offender “has been rehabilitated and is reasonably
believed to be fit to reenter society.” § 921.1402(7), Fla. Stat. Therefore,
it is at the review of his sentence that Appellant’s “spiritual
transformation” and model behavior will have greater weight.

   Although the sentence review will involve consideration of different
factors, given that the judge who handled the resentencing has already
taken a position as to whether Appellant is “fit to reenter society,” it would
be appropriate that the sentence review be assigned to a different judge.
Pursuant to section 921.1402(6), in determining if it is appropriate to
modify Appellant’s sentence, the court shall consider all of the listed
factors.

   Finally, we reject Appellant’s argument that he was entitled to be
resentenced under the 1983 sentencing guidelines instead of being
resentenced under the new juvenile offender sentencing scheme. Compare


                                       6
§ 775.082(8)(a), 3 with § 775.082(3)(b)2. 4 The Florida Supreme Court held
that the remedy for a Miller violation is to retroactively apply chapter 2014-
220, Laws of Florida to a juvenile offender. Horsley, 160 So. 3d at 405
(“We conclude that applying chapter 2014–220, Laws of Florida, to all
juvenile offenders whose sentences are unconstitutional under Miller is the
appropriate remedy.”) (emphasis added); see also Fla. R. Crim. P. 3.781(a)
(“The courts shall use the following procedures in . . . resentencing any
juvenile offender whose sentence is determined to be unconstitutional
pursuant to the United States Supreme Court’s decision in Miller . . . or
Graham . . . . ).

   This Court is bound by Horsley, and the rules adopted by the Florida
Supreme Court. Appellant was granted relief based on Miller and
Landrum, and the remedy is as provided by the Florida Supreme Court.
The Florida Supreme Court has not created any exception that would allow
some juvenile offenders to opt for resentencing under different provisions.

   Appellant points to Logan v. State, 921 So. 2d 556 (Fla. 2005), and
Smith v. State, 537 So. 2d 982 (Fla. 1989), but those cases involved
defendants who were adults when they committed their offenses. Because
they were resentenced after the 1983 guidelines went into effect, the

3   Section 775.082(8)(a) provides:

         The sentencing guidelines that were effective October 1, 1983, and
         any revisions thereto, apply to all felonies, except capital felonies,
         committed on or after October 1, 1983, and before January 1, 1994,
         and to all felonies, except capital felonies and life felonies,
         committed before October 1, 1983, when the defendant
         affirmatively selects to be sentenced pursuant to such provisions.

§ 775.082(8)(a), Fla. Stat. (2017).

4   Section 775.082(3)(b)2. provides that

         a person convicted . . . of a first degree felony punishable by a term
         of years not exceeding life imprisonment, or an offense that was
         reclassified as a first degree felony punishable by a term of years
         not exceeding life, which was committed before the person attained
         18 years of age may be punished by a term of years equal to life
         imprisonment if the judge conducts a sentencing hearing in
         accordance with s. 921.1401 and finds that a term of years equal
         to life imprisonment is an appropriate sentence.

§ 775.082(3)(b)2., Fla. Stat. (2017).


                                            7
statute allowed them to opt for a guidelines sentence. Appellant, by
contrast, was resentenced only because he alleged that his sentence
violated Miller. Pursuant to Horsley, the appropriate remedy is to
retroactively apply the 2014 juvenile offender sentencing scheme.

                               Conclusion

   Appellant, a juvenile offender who sought to be resentenced pursuant
to the mandates of Miller, was properly resentenced according to the
juvenile offender sentencing scheme enacted in chapter 2014–220, Laws
of Florida. Section 775.082(3)(b)2. provides for the sentence applicable to
Appellant, and the trial court properly resentenced him pursuant to that
statutory provision. Because the trial court followed the proper procedure
required for resentencing a juvenile offender, Appellant’s life sentence
subject to judicial review is constitutional.

   Affirmed.

WARNER and GROSS, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




                                    8
