Opinion
Case No. 5D18-1698
08-23-2019
STATE of Florida, Appellant, v. Shedrick Laron WASHINGTON, Appellee.
Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellant. James S. Purdy, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellee.
Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellant.
James S. Purdy, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellee.
SASSO, J.
The State appeals downward departure sentences imposed on Shedrick Laron Washington on multiple counts of drug offenses, arguing that the court's stated reason, sentence manipulation, is not supported by competent, substantial evidence. We agree and reverse.
In 2017, the Kissimmee Police Department, with the assistance of the St. Cloud Police Department, the Osceola County Sheriff's Office Narcotic Enforcement Team, and the Drug Enforcement Agency, conducted an undercover sting operation in a specific area of Kissimmee near a public park. Using a confidential informant and undercover agents, the police made several purchases of small amounts of crack cocaine. At different times between October 5 and December 20, 2017, undercover agents and a confidential informant each purchased between $20 and $40 worth of crack cocaine from Washington. At one point, three different agents made purchases from Washington within the same hour.
In four separate cases, the State charged Washington with delivery of cocaine within 1,000 feet of a park. In two additional cases, the State charged Washington and a co-defendant with delivery of cocaine within 1,000 feet of a park and conspiracy to deliver cocaine.
The court conducted a plea and sentencing hearing on May 7, 2018. Washington stated he had no objections to his scoresheet, which showed 151.5 months as the lowest permissible prison sentence. Before conducting an extensive colloquy, the court stated:
At the beginning of the hearing, Washington's counsel asked the court if it would be willing to hold a plea conference on the cases to discuss "some downward departure bases." The court agreed. It then held a plea conference with both attorneys off the record in the jury room. Six minutes later, the court and the attorneys re-entered the courtroom and the plea hearing began.
As you're aware, I had a plea conference with your lawyer and the prosecutor earlier this morning, and based on the facts of this case, your prior record, and the -- given the fact that multiple subsequent -- or multiple buys were made in basically this -- in the same situation during the course of the undercover operation, I did indicate to [defense counsel] that if you entered these pleas, the Court would impose a downward departure sentence of six years state prison.
After accepting the pleas, the trial court orally pronounced that it would impose a downward departure sentence. The court stated that it could not find that law enforcement's intent in this case was to manipulate Washington's sentence. However, it found that the effect on Washington was the same as if law enforcement had intentionally delayed arrest and continued to make drug purchases to obtain a higher minimum sentence. The court characterized the circumstances as "de facto" sentence manipulation.
The court adjudicated Washington guilty of all charges and, over the State's objection, entered downward departure sentences of six years in prison on the delivery of cocaine convictions in each case and five years in prison on each of the conspiracy convictions. The court specifically wrote "sentence manipulation" on the scoresheets as an "other reason" for the sentences imposed.
Under the Criminal Punishment Code, the lowest permissible sentence calculated pursuant to the offender's scoresheet is "the minimum sentence that may be imposed by the trial court, absent a valid reason for departure." § 921.0024(2), Fla. Stat. (2017). Section 921.0026, Florida Statutes (2017), lists certain mitigating circumstances that justify departure. However, the trial court may impose a downward departure for reasons not delineated in section 921.0026, so long as the reason given is supported by competent, substantial evidence and not otherwise prohibited. State v. Laroe, 821 So. 2d 1199, 1201-02 (Fla. 5th DCA 2002) ; State v. Barnes, 753 So. 2d 605, 607 (Fla. 2d DCA 2000) (citation omitted).
We note that the State does not challenge whether the trial court's stated justification for the downward departure—sentence manipulation—is a valid legal basis for justifying a departure sentence. Thus, the only issue presented in this appeal is a narrow one: whether the trial court's finding of sentence manipulation in this case is supported by competent, substantial evidence.
Sentence manipulation, as a basis for downward departure, has been described as occurring when the government manipulates its conduct and/or investigation in order to increase a defendant's potential sentence. See, e.g. , Claudia G. Catalano, Annotation, Claims of Sentencing Factor Manipulation and Sentencing Entrapment Under Federal Sentencing Guidelines in Drug Prosecutions , 42 A.L.R. Fed. 3d Art. 7 (2019) (identifying "sentencing factor manipulation" as doctrine adopted in several Federal Circuit Courts of Appeals, often cited in narcotics cases, and "focuses on the government's conduct to see whether it had manipulated its investigation in order to increase a defendant's potential sentence"). State and federal courts throughout the country have grappled with its application, with some courts completely rejecting the doctrine as a valid basis for departure. See, e.g. , United States v. Garcia , 79 F.3d 74, 76 (7th Cir. 1996) ("[T]here is no defense of sentencing manipulation in this circuit."); State v. Monaco , 207 Ariz. 75, 83 P.3d 553, 557 (Ariz. Ct. App. 2004) (noting that neither Arizona's judicial precedent nor its statutory scheme requires or permits trial courts to apply doctrine of sentence factor manipulation to enter departure sentence).
The courts that have accepted sentence manipulation as a legally valid concept have further wrestled with the showing required to establish it. For example, some courts have suggested the government's actions must rise to "extraordinary misconduct," while others have characterized the requisite showing as "outrageous conduct." Compare United States v. Montoya , 62 F.3d 1, 4 (1st Cir. 1995) (noting that what defendant must show for sentence reduction is certain elements carried to such degree that government's conduct must be viewed as extraordinary misconduct), with United States v. Lacey, 86 F.3d 956, 963 (10th Cir. 1996) (analyzing sentence manipulation claim under outrageous conduct standard).
In State v. Steadman, 827 So. 2d 1022 (Fla. 3d DCA 2002), the Third District addressed sentence manipulation as an issue of first impression in Florida. In doing so, it rejected the "outrageous conduct" standard in favor of a more expansive "intent" standard. 827 So. 2d at 1025. The Steadman court held that a trial court may impose a departure sentence "when law enforcement allows a defendant to continue criminal activities for no reason other than to enhance his or her sentence." Id. Noting that it was undisputed the officers in that case decided to forego the arrest of Steadman in order to command a lengthy prison sentence, the Third District affirmed a downward departure sentence based on sentence manipulation. Id.
It was under the framework of Steadman that the trial court here evaluated whether sentence manipulation occurred in this case. However, in contrast to Steadman , there was no evidence that law enforcement intended to manipulate Washington's potential sentence. Indeed, the trial court specifically noted that it could not find law enforcement's intent in this case was to manipulate the potential sentence and even noted there could be a legitimate explanation behind the multiple purchases—to wit, Washington being more aggressive than other salespeople. Nonetheless, the trial court focused on the frequency and number of transactions giving rise to the charges, characterizing it as "de facto" manipulation. The trial court stated that, at some point, multiple buys become de facto manipulation. This was error.
The mere presence of continued transactions cannot serve as competent, substantial evidence to support a finding of sentence manipulation. To hold otherwise would extend the doctrine of sentence manipulation beyond its groundings in due process concerns and instead undermine the legislature's purpose in establishing the Criminal Punishment Code—to punish. See § 921.002(1)(b), Fla. Stat. (2017) ("The primary purpose of sentencing is to punish the offender."); State v. Wheeler , 180 So. 3d 1117, 1119 (Fla. 5th DCA 2015) ("A defendant's minimum sentence is based on the crime that he committed and the points that he earned."). Moreover, such a holding could unnecessarily frustrate what may be an otherwise completely valid police tactic. We agree with the United States Court of Appeals for the Eighth Circuit in this regard when it noted:
Obviously, any transaction in a sting after the first violation of law, however minor, will be subject to [sentence manipulation] attacks. Yet, we have established that it is legitimate for police to continue to deal with someone with whom they have already engaged in illicit transactions in order to establish that person's guilt beyond a reasonable doubt or to "probe the depth and extent of a criminal enterprise, to determine whether coconspirators exist, and to trace the drug deeper into the distribution hierarchy."
United States v. Shephard , 4 F.3d 647, 649 (8th Cir. 1993) (quoting United States v. Calva , 979 F.2d 119, 123 (8th Cir. 1992) ). Besides, as the Third District noted in Steadman , "a defendant does not have a right to be arrested in order to be prevented from committing further crimes." 827 So. 2d at 1025.
In sum, there was no evidence presented in this case that would suggest an attempt or intent by law enforcement to manipulate Washington's sentence. As such, the trial court's imposition of a downward departure sentence on this basis was error. We therefore reverse and remand for a de novo resentencing hearing. See Shine v. State , 273 So. 3d 935, 936 (Fla. 2019) ("[T]he proper remedy upon reversal of a sentence due to the invalidity of a downward departure is resentencing de novo.").
REVERSED AND REMANDED.
WALLIS and LAMBERT, JJ., concur.