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Judge's 'improper' remarks lead to resentencing order in murder case

TAMPA — A state appeals court has ordered that a Seffner man serving a life prison term for a 2006 murder conviction be resentenced, ruling that his attorney failed to object to "improper" statements made by a Hillsborough Circuit judge.

In an opinion issued this week, Florida's 2nd District Court of Appeal found that Judge Ronald Ficarrotta "relied on improper factors" in his sentencing of Barry Johnson, then 23 years old. The court also decided that Johnson's attorney, Assistant Public Defender Charles Traina, was "deficient" in his counsel because he did not object to the judge's reasoning.

"We are unable to envision any tactical reason that trial counsel would have had for standing mute when the trial judge imposed the harshest sentence available based on improper sentencing factors," Appellate Judge Morris Silberman wrote.

At issue were remarks Ficarrotta made when he sentenced Johnson to life imprisonment in February 2006. The judge, who had also presided over Johnson's second-degree murder trial, rebuked Johnson because he had "shown absolutely no remorse to this day" in the shooting of 32-year-old Mark Franklin.

"You continue to deny your involvement and basically say this didn't even happen," Ficarrotta said, according to a transcript of the proceeding.

The judge's statements ran counter to the legal principle that a defendant's decision to maintain his innocence or testify on his own behalf should not be penalized by a heavier sentence, the appeals court found.

"A sentencing judge may not consider a defendant's claims of innocence or refusal to admit guilt when imposing sentence," Silberman wrote. "It is similarly improper for a judge to consider whether the defendant testified truthfully in imposing sentence. . . . In this case, the trial judge did both in violation of Johnson's due process rights."

The appeals court ordered that Johnson be resentenced by a different judge. The new judge will still be free to decide that he deserves life in prison, the maximum sentence for a second-degree murder conviction.

Ficarrotta declined to comment on the reversal of Johnson's sentence. Traina did not return calls for comment Friday.

A jury found that Johnson, who is now 30, was guilty of second-degree murder in Franklin's death and had used a firearm, leading to a mandatory minimum sentence of 25 years in state prison.

Prosecutors asserted that Johnson shot Franklin six times in a dispute over a car and $150.

Franklin's mother asked Ficarrotta to impose a life sentence. "I don't ever want him to walk the streets again to do the same thing to someone else's child like he did to my Mark," Joyce Franklin said in a statement submitted to the judge.

There are good reasons to prohibit judges from weighing a defendant's show of remorse or refusal to admit guilt when imposing a sentence, according to Jennifer Zedalis, director of trial practice at the University of Florida Levin College of Law.

Such considerations could lead to false displays of contrition by those seeking lighter punishment and have a "chilling effect" on defendants' constitutional right not to admit guilt.

"It's a slippery slope," Zedalis said. "I don't care how guilty somebody looks. You can't say you can consider remorse in this case but not in some other case. You have to have a bright line there."

In a dissenting opinion, Appellate Judge Chris Altenbernd said he did not agree that Traina was "ineffective" in representing Johnson and said Ficarrotta's comments were not inappropriate in light of the circumstances.

"At the sentencing hearing where the neighborhood needed closure, Mr. Johnson gave them nothing," Altenbernd wrote, adding that "the law of Florida that makes it a fundamental error for a trial judge to comment aloud about a defendant's visible lack of remorse in this context ought to be revisited by the Supreme Court."

Peter Jamison can be reached at pjamison@tampabay.com or (813) 226-3337. Follow him on Twitter @petejamison.

Judge's 'improper' remarks lead to resentencing order in murder case 09/06/13 [Last modified: Friday, September 6, 2013 11:34pm]

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