Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-2209 _____________________________ STATE OF FLORIDA, Appellant, v. STEVEN KUNKEMOELLER, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. Thomas V. Dannheisser, Judge. November 3, 2021 LONG, J. The State of Florida appeals the downward departure sentence imposed on Steven Kunkemoeller after convictions of racketeering and organized fraud. The trial court determined that two statutory grounds and four non-statutory grounds justified the imposition of a downward departure sentence. The State contends that departure was improper because the grounds relied on by the trial court were either legally insufficient or unsupported by the record. We agree and reverse. I. Facts Kunkemoeller’s convictions arose from his involvement in the theft of state public education and charter school grant funds. Kunkemoeller’s businesses overcharged and submitted fictitious invoices to charter schools, owned by Marcus May, for the costs of goods and services, then remitted hundreds of thousands of dollars to Kunkemoeller, May, and the companies owned by them. Kunkemoeller was originally sentenced to his Criminal Punishment Code Scoresheet’s lowest permissible prison sentence, a term of 55.5 months, followed by ten years of probation. After the original sentence was affirmed on appeal, Kunkemoeller filed a motion for modification requesting a downward departure sentence. At the hearing, Kunkemoeller argued several mitigating factors including his settlement payments in a civil case, remorse, relative culpability, and that he is unlikely to commit another crime. The State argued there was no legal basis or competent, substantial evidence to support a downward departure. The trial court resentenced Kunkemoeller to concurrent one- year terms of imprisonment followed by nine years of probation. The court identified six grounds for departure including that: (1) the need for restitution outweighed the need for imprisonment; (2) Kunkemoeller was a relatively minor participant in the criminal conduct; (3) Kunkemoeller’s relative culpability was substantially less than Marcus May’s; (4) Kunkemoeller’s contrition and concrete remedial actions show he is unlikely to commit another crime; (5) Kunkemoeller’s past and future payment of restitution serves as a non-statutory basis for departure under section 921.185, Florida Statutes (2018); and (6) Kunkemoeller has become an asset to his community. The State timely filed a notice of appeal. We have jurisdiction. Art. V, § 4(b)(1), Fla. Const.; §§ 921.0026(1), 924.07(1)(i), Fla. Stat. (2018); Fla. R. App. P. 9.140(c)(1)(M). II. Analysis Per Florida’s Criminal Punishment Code, the lowest permissible sentence calculated in 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. (2018). “A downward departure from the lowest permissible sentence . . . is prohibited unless there are circumstances or factors that 2 reasonably justify the downward departure.” § 921.0026(1), Fla. Stat. In Banks v. State, the supreme court articulated a two-part test for evaluating motions for a downward departure sentence. 732 So. 2d 1065, 1067 (Fla. 1999). The first determination is whether a trial court can impose a downward departure sentence based on a valid legal ground proven by a preponderance of the evidence. Id. Next, the trial court decides whether it should impose a downward departure sentence based on the totality of the circumstances. Id. at 1068. Appellate review of a trial court’s decision to grant a downward departure sentence involves a mixed standard. Banks, 732 So. 2d at 1067–68. Under the first Banks step, a trial court’s conclusions of law are reviewed de novo and its findings of fact must be supported by competent, substantial evidence. Id. Review of the trial court’s determination under the second Banks step is for an abuse of discretion. Id. A. Statutory Grounds for Departure Section 921.0026(2) lists fourteen non-exclusive statutory mitigating factors and circumstances permitting a downward departure sentence. Kunkemoeller conceded at the hearing below that the evidence did not support a statutory ground for departure. Despite that, the trial court relied on two statutory grounds. On appeal, both parties agree that there is no competent, substantial evidence to support the statutory grounds relied on by the trial court. We agree. The trial court relied on section 921.0026(2)(e), authorizing departure where “[t]he need for payment of restitution to the victim outweighs the need for a prison sentence” and section 921.0026(2)(b), authorizing departure where “[t]he defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct.” When weighing the need for restitution against the need for incarceration under section 921.0026(2)(e), the trial court must consider “the nature of the victim’s loss and the efficacy of restitution, and . . . the consequences of imprisonment.” Banks, 732 So. 2d at 1069. “The test is the 3 victim’s need, not the victim’s desire or preference . . . . Thus, to satisfy this test there must be some evidence of the victim’s need.” Demoss v. State, 843 So. 2d 309, 312 (Fla. 1st DCA 2003). Because no evidence was presented regarding the victim’s need for restitution, the trial court’s reliance on section 921.0026(2)(e) was not supported by competent, substantial evidence. When determining whether section 921.0025(2)(b) applies, the court must determine whether Kunkemoeller was a relatively minor participant. But the evidence shows Kunkemoeller was a major, long-term participant without whom the scheme could not have been carried out. The trial court’s departure based on section 921.0026(2)(b) was not supported by competent, substantial evidence. See, e.g., State v. Johnson, 197 So. 3d 1268, 1269 (Fla. 2d DCA 2016) (reversing downward departure sentence based on section 921.0026(2)(b) where “[n]o testimony or evidence was presented to support the assertion that [the defendant] was a minor participant in the offense”). B. Non-Statutory Grounds Having determined that neither of the statutory grounds can support a downward departure, we turn to the non-statutory grounds. The mitigating factors and circumstances that may be considered by the trial court are not exclusive to those enumerated in section 921.0026(2). Trial courts have “wide discretion” in determining whether to grant a downward departure. Wilson v. State, 306 So. 3d 1267, 1269 (Fla. 1st DCA 2020), review granted, No. SC20-1870, 2021 WL 1157838 (Fla. Mar. 26, 2021). A trial court “can impose a downward departure sentence for reasons not delineated in section 921.0026(2), so long as the reason given is supported by competent, substantial evidence and is not otherwise prohibited.” State v. Robinson, 149 So. 3d 1199, 1203 (Fla. 1st DCA 2014) (quoting State v. Henderson, 108 So. 3d 1137, 1140 (Fla. 5th DCA 2013)). i. Relative Culpability As its first non-statutory basis for departure, the trial court found that Kunkemoeller’s mens rea was relatively less than May’s. Specifically, that Kunkemoeller “had little to no 4 circumstantial information or situational perspective that would have alerted him that his actions were clearly criminal in nature.” Florida courts have recognized the use of relative culpability as a non-statutory basis to impose a downward departure “in order to provide parity with the sentence of a co-defendant who was at least, if not more, culpable than the defendant.” State v. Diaz, 189 So. 3d 896, 899 (Fla. 3d DCA 2016). Parity of sentences serves the general principle that “defendants should not be treated differently on the same or similar facts.” Sanders v. State, 510 So. 2d 296, 298 (Fla. 1987). But in the application of this principle, using relative culpability to achieve sentence parity is only an appropriate mitigating factor “in departing downward to meet a codefendant’s sentence.” Id. (emphasis added). Here, the trial court’s downward departure created an even greater disparity than the fifteen-year difference between May’s twenty-year sentence and Kunkemoeller’s 55.5-month sentence. The trial court misapplied this non-statutory basis for departure. Where “a trial court’s perception of justice leads it to conclude that leniency is appropriate, and grounds do not exist for a departure sentence, the leniency must come from the exercise of the court’s discretion to impose the minimum guidelines sentence.” State v. Thompkins, 113 So. 3d 95, 100 (Fla. 5th DCA 2013); see also Williams v. State, 492 So. 2d 1308, 1309 (Fla. 1986) (prohibiting departure where the trial court’s reasoning was based on its subjective belief that the recommended sentence under the guidelines was not commensurate with the seriousness of the crime). ii. Contrition, Likelihood to Commit Another Crime Kunkemoeller argues that the trial court’s finding that his “character, contrition and concrete remedial actions [make him] unlikely to commit another crime,” was legally sufficient. He cites State v. Sachs, 526 So. 2d 48, 50 (Fla. 1988), to assert that a finding that the defendant has demonstrated remorse for his actions or that the defendant is not dangerous and poses no future threat to society can support a downward departure. But after Sachs, the legislature adopted section 921.0026(2)(j). That provision 5 contemplates the same Sachs grounds yet imposes a more stringent requirement by combining them into a single test. Section 921.0026(2)(j) states that mitigation may be reasonably justified if “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” To satisfy the requirements of this mitigator, “there must be competent, substantial evidence for each of the three components of the statute: (1) the offense was committed in an unsophisticated manner, (2) it was an isolated incident, and (3) the defendant had shown remorse.” Staffney v. State, 826 So. 2d 509, 512 (Fla. 4th DCA 2002). Kunkemoeller failed to present any evidence, and the trial court failed to make any findings, that Kunkemoeller’s criminal conduct was an isolated incident or unsophisticated. His criminal activity was a complex financial scheme that took place over the span of nearly five years. The legislature’s requirements would be left hollow if a sentencing court could cherry-pick one part of a statutory mitigator and re-define it as non-statutory. A statutory ground’s requirements cannot be avoided simply by renaming the basis a non-statutory ground. iii. Past and Future Payment of Restitution In its third non-statutory ground for departure, the trial court indicated that if Kunkemoeller’s restitution did not qualify as a statutory basis for departure under section 921.0026(2)(e), then it could be justified as a non-statutory basis. Specifically, the trial court relied on section 921.185, which instructs that when sentencing a defendant for a crime involving property, a trial court, “in its discretion, shall consider any degree of restitution a mitigation of the severity of an otherwise appropriate sentence.” However, the consideration of past restitution under section 921.185 cannot, by itself, serve as a legal basis for a downward departure sentence. Section 921.185 refers to mitigating the severity of a defendant’s “otherwise appropriate sentence,” indicating a trial court’s discretion applies to consideration of restitution as a mitigating factor within the appropriate statutory sentence for the crime. 6 To depart outside the otherwise appropriate sentence, the trial court must still meet the two-step test under Banks. As discussed above, section 921.0026(2)(e) permits the consideration of restitution as a mitigating factor to justify a downward departure sentence where competent, substantial evidence shows the need for restitution outweighs the need for incarceration. We have already determined that there was not competent, substantial evidence to justify departure under the statutory ground for restitution. And, here again, the trial court cannot avoid the explicit statutory requirements by characterizing its reasoning as non-statutory. iv. Asset to the Community As the final basis for departure, the trial court found that Kunkemoeller had become an “asset to his community” because he: (1) has actively participated in helping others by operating a business employing numerous people; (2) distributed PPE supplies to address COVID-19 in his community; (3) provides physical and financial support for his elderly mother, medically challenged wife and brain-damaged daughter; and (4) has otherwise maintained, by his numerous community and business acts, a respected reputation in his community. These reasons are either legally insufficient or not supported by competent, substantial evidence. First, the mere fact that Kunkemoeller operates a business in the community is not competent, substantial evidence, by itself, that he is an asset to his community. Second, the donation of PPE equipment is supported only by vague thank you letters sent to one of his companies. These letters, without more, are not competent, substantial evidence to support a downward departure. Third, it is well-established that family support is not a legally valid reason for departure. See State v. Stephenson, 973 So. 2d 1259, 1264 (Fla. 5th DCA 2008) (“Florida courts have consistently held that family support concerns are not valid reasons for downward departure.”) (citing State v. Walker, 923 So. 2d 1262, 1265 (Fla. 1st DCA 2006)); State v. Chapman, 805 So. 2d 906, 907−08 (Fla. 2d DCA 2001). 7 Fourth, the trial court’s finding that Kunkemoeller has maintained, by his numerous community and business acts, a respected reputation in his community is both unsupported by the record and an invalid reason to downward depart. Owning a business and having many business contacts is not a legally valid reason to depart. See State v. Lacey, 553 So. 2d 778, 780 (Fla. 4th DCA 1989) (explaining how “[a]ll defendants suffer the consequences of a criminal conviction” and the sentencing court “must be blind as to the color of a defendant’s collar” such that they “do not provide special treatment for the trained, educated or licensed”); Lee v. State, 223 So. 3d 342, 360 (Fla. 5th DCA 2017), quashed on other grounds, 258 So. 3d 1297 (Fla. 2018) (holding that the fact the defendant was a physician who contributed to the community and was highly valued by his patients was an invalid reason to depart). But even if it were a valid basis to depart, there was no competent, substantial evidence presented regarding Kunkemoeller’s reputation as an asset to his community. III. Conclusion The grounds relied on by the trial court to impose a downward departure sentence were either legally insufficient or not supported by competent, substantial evidence. We therefore reverse Kunkemoeller’s sentence and remand for the trial court to impose a sentence within the guideline range. RAY, J., concurs; WINOKUR, J., concurs with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ WINOKUR, J., concurring. 8 I agree in full with the majority opinion, but I write to further explain why section 921.185 does not state an appropriate ground to depart from the recommended sentence. Section 921.185 reads in pertinent part: “[i]n the imposition of a sentence for any felony . . . the court, in its discretion, shall consider any degree of restitution a mitigation of the severity of an otherwise appropriate sentence.” Section 921.185 was enacted in 1974, and has not been amended. Ch. 74-125, § 1, Laws of Fla. At the time, a sentencing court was not authorized to order restitution. That changed with the enactment of section 775.089 in 1977. This statute provided that the court, in imposing sentence, “may order the defendant to make restitution to the aggrieved party for damage or loss caused by the defendant’s offense if the defendant is able or will be able to make such restitution.” § 775.089(1), Fla. Stat. (1977). In 1984, the Legislature declared that “[w]hile state law provides the option of financial restitution to victims by defendants, most victims are never fully or even partially compensated by defendants for their injuries and other losses.” Ch. 84-363, § 2, Laws of Fla. Based on this finding, the Legislature amended section 775.089 to strengthen a victim’s right to restitution. Ch. 84-363, § 5, Laws of Fla. In particular, the Legislature changed “may order the defendant to make restitution” to “shall order the defendant to make restitution” in subsection (1). Id. This part of subsection (1) remains in current law. Numerous amendments to section 775.089 since then have broadened and deepened a victim’s right to restitution, as well as the court’s obligation to impose and enforce it. In short, at the time section 921.185 was enacted, a sentencing court was not authorized to order restitution, whereas today a sentencing court is required to impose restitution. It is difficult to conceive how payment of restitution could be considered a mitigating circumstance permitting departure under today’s sentencing laws, when restitution is statutorily required. * * It is true that a court can depart from the recommended sentence when “[t]he need for payment of restitution to the victim outweighs the need for a prison sentence.” § 921.0026(2)(e), Fla. 9 Perhaps this explains the paucity of case law addressing section 921.185, in spite of the fact that it was enacted 47 years ago. While section 921.185 may permit a court to consider payment of restitution as a factor in the severity of a sentence imposed (as the majority opinion holds), a court cannot consider payment of restitution a ground for departure when restitution is in fact statutorily required. _____________________________ Ashley Moody, Attorney General, Trisha Meggs Pate and Benjamin Louis Hoffman, Assistant Attorneys General, Tallahassee, and Thomas Williams, Assistant State Attorney, Pensacola, for Appellant. Kim Anthony Skievaski of Kim Anthony Skievaski, P.A., Pensacola, for Appellee. Stat. This ground for departure is not the same as the basis for sentence mitigation set forth in section 921.185. 10