source: Caselaw Access Project

author: JOINER, Judge.

license: Public Domain

text:
    Kenneth Robert CRAWFORD v. STATE of Alabama.
    CR-09-1883.
    Court of Criminal Appeals of Alabama.
    July 8, 2011.
    Rehearing Denied Dec. 9, 2011.
    Certiorari Denied April 6, 2012 Alabama Supreme Court 1110367.

      Douglas H. Scofield, Chelsea, for appellant.

      Troy King, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for appellee.
   JOINER, Judge.

Pursuant to a plea agreement with the State, Kenneth Robert Crawford, a convicted sex offender, pleaded guilty to establishing a residence or other living accommodation where a minor resides, a violation of § 15-20-26(c), Ala.Code 1975, a part of the Community Notification Act, § 15-20-20 et seq., Ala.Code 1975 (“the CNA”). The circuit court sentenced Crawford to two years in prison but suspended that sentence and placed him on three years’ probation. Additionally, the circuit court ordered Crawford to pay a $100 victims compensation assessment.

The facts are undisputed. In 1998, Crawford was convicted of second-degree sodomy, in which his minor child was the victim; he is therefore subject to the residency requirements of the CNA. § 15-20-26, Ala. Code 1975. In August 2009, Crawford moved in with his son, his son’s wife, and his two minor grandchildren. When Crawford attempted to register his new address with the Jefferson County Sheriffs Department, he was told that he could not live with his son because doing so violated the restrictions of the CNA. Crawford lived with his son’s family from August 16, 2009, to October 16, 2009. In April 2010, Crawford was indicted by the Jefferson County Grand Jury for violating the CNA. After he was indicted, Crawford filed a verified motion to dismiss the indictment, which the circuit court denied. After the motion was denied, Crawford expressly reserved his right to appeal the issues raised in his verified motion to dismiss, and he pleaded guilty. This appeal followed.

On appeal, Crawford contends that the residency restrictions in § 15-20-26(c), Ala.Code 1975, are unconstitutional. Specifically, Crawford contends that the CNA violates the protections of the Due Process Clause of the United States Constitution as applied to the states through the Fourteenth Amendment and that the CNA is an ex post facto law that violates Article I, § 10, of the United States Constitution.

I.

Crawford argues that § 15-20-26(c) is unconstitutional because, he says, it violates the protections of the Due Process Clause as applied to the states through the Fourteenth Amendment to the United States Constitution. The Fourteenth Amendment to the United States Constitution provides, in part: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” The Due Process Clause both guarantees fair process and includes a substantive component that “ ‘provides heightened protection against government interference with certain fundamental rights and liberty interests.’” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (quoting Washington v. Gluchsberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)). Here, Crawford challenges the CNA under both the procedural and substantive components of the Due Process Clause.

When the constitutionality of a statute is challenged,

“‘[w]e must afford the Legislature the highest degree of deference, and construe its acts as constitutional if their language so permits.’ Monroe v. Harco, Inc., 762 So.2d 828, 831 (Ala.2000). ‘[I]n order to overcome the presumption of constitutionality ... the party asserting the unconstitutionality of the [statute], bears the burden “to show that [the statute] is not constitutional.” ’ State ex rel. King v. Morton, 955 So.2d 1012, 1017 (Ala.2006) (quoting Board of Trs. of Employees’ Retirement Sys. v. Talley, 291 Ala. 307, 310, 280 So.2d 553, 556 (1973)).”

State v. Adams, 91 So.3d 724, 732 (Ala. Crim.App.2010).

A.

Crawford first argues that § 15-20-26(c), Ala.Code 1975, violates the procedural component of the Due Process Clause because the statute provides no mechanism for a convicted sex offender to petition the court for an exemption from the restrictions imposed by the CNA. The procedural component of the Due Process Clause guarantees that a state will not deprive a person of life, liberty, or property without some form of notice and an opportunity to be heard. See Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004). To prevail on a procedural-due-process claim, Crawford must show that the CNA deprives him of a protected liberty interest and that the procedure accompanying the deprivation is constitutionally inadequate. Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989).

Here, Crawford argues that the CNA deprives him of the right of familial association because, he says, as a convicted sex offender it precludes him from living with his son, his minor grandchildren, and his daughter-in-law or with his wife and her daughter. The United States Supreme Court has recognized several different liberty interests implicit in the Due Process Clause. Glucksberg, 521 U.S. at 720. These liberty interests include “the right to marry, to have children, to direct the education and upbringing of one’s children, to marital privacy, to use contraception, to bodily integrity, and to abortion.” Glucksberg, 521 U.S. at 720. In Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), the United States Supreme Court held:

“The Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State. E.g., Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923)....
“The personal affiliations that exemplify these considerations,' and that therefore suggest some relevant limitations on the relationships that might be entitled to this sort of constitutional protection, are those that attend the creation and sustenance of a family-marriage, e.g., Zablocki v. Redhail, [434 U.S. 374, 383-86 (1978)]; childbirth, e.g., Carey v. Population Services International, [431 U.S. 678, 684-86 (1977) ]; the raising and education of children, e.g., Smith v. Organization of Foster Families, [431 U.S. 816, 844 (1977)]; and cohabitation with one’s relatives, e.g., Moore v. East Cleveland, [431 U.S. 494, 503-04 (1977) (plurality opinion) ]. Family relationships, by their nature, involve deep attachments and commit-merits to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one’s life. Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty.”

Roberts, 468 U.S. at 619-20. Thus, the right to enter into and maintain certain familial associations is a protected liberty interest. As such the State cannot impede one’s ability to associate with one’s family without due process of law.

Because Crawford satisfies the first prong-of the procedural due-process analysis, we must now determine whether the procedure accompanying the deprivation of his liberty interest was constitutionally adequate. To support his procedural due-process argument, Crawford cites this Court’s ruling in J.L.N. v. State, 894 So.2d 738 (Ala.Crim.App.2002).

In J.L.N. the defendant had been previously convicted of second-degree rape; the victim was his 15-year-old girlfriend. After the defendant was released on probation, his victim and the victim’s mother moved into the defendant’s house. The defendant was indicted for a violation of the CNA and filed an unverified motion to dismiss the indictment because he intended to marry the victim. The circuit court denied the defendant’s motion, and he pleaded guilty. The defendant argued that the CNA was unconstitutional because, he said, it was overbroad and violated both his procedural and substantive due-process rights; specifically, he said, it violated his right to intimate association with family members and the right to marital privacy. In holding that the CNA interfered directly and substantially with the defendant’s right to marry, this Court stated that

“the problem with the CNA, at least in the context of this case, is that it contains no exemption — and no procedure by which a convicted sex offender can petition the court for an exemption— from the restrictions imposed by the statute and the corresponding severe punitive consequences for noncompli-anee. In this respect, the CNA is arbitrarily broad, because its practical effect is to create a conclusive presumption that there are no circumstances under which it might be appropriate for a convicted sex offender to interact with his victim — a presumption belied by the particular facts of this case. Contrary to the Legislature’s reference in the last paragraph of § 15-20-20.1 to providing ‘certain discretion to judges for application of these requirements,’ the CNA provides no means for an individualized determination by a court in those rare instances, such as this one, where a convicted sex offender and his victim wish to marry. Such irrebuttable presumptions have long been disfavored under the Due Process Clause. See, e.g., Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 640, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974).”

J.L.N., 894 So.2d at 749. Although Crawford recognizes that the Alabama Supreme Court reversed the Court’s decision in J.L.N. v. State, 894 So.2d 751 (Ala.2004) (holding that J.L.N. lacked standing to challenge the CNA), he contends that this Court’s analysis in J.L.N. is applicable to his case. We disagree.

After this Court decided J.L.N., the Supreme Court of the United States addressed a similar issue with regard to a procedural due-process challenge to a community-notification statute. See Connecticut Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003).

In Doe, a convicted sex offender argued that Connecticut’s version of the CNA was unconstitutional because, he said, it did not provide for a hearing to determine whether a sex offender was particularly likely to be currently dangerous before being labeled so by his inclusion in a publicly disseminated registry. Doe, 538 U.S. at 7. The Supreme Court held that the fact that the convicted sex offender “seeks to prove — that he is not currently dangerous — is of no consequence under the [Connecticut law],” because “the law’s requirements turn on an offender’s conviction alone — a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest.” Doe, 538 U.S. at 7.

Similarly, Crawford argues that he should be afforded the opportunity to petition the court to determine whether he should be excluded from the restrictions of the CNA before the State can preclude him from living with certain family members. Crawford’s argument, however, is of no consequence under the CNA, because the restrictions of the statute turn on his conviction alone. Thus, any procedural due process required before deprivation of life, liberty, or property was met through the original proceedings that resulted in his conviction.

Accordingly, the restrictions contained in § 15-20-26(e), Ala.Code 1975, do not ■violate the procedural component of the Due Process Clause.

B.

Crawford also argues that the restrictions contained in § 15-20-26(c), Ala. Code 1975, violate the substantive component of the Due Process Clause because, he says, the residency restrictions impede a fundamental right and are not narrowly tailored to meet a compelling state interest. Specifically, Crawford contends that, as a convicted sex offender, he is prevented by the CNA from living with his son, his two minor grandchildren, his daughter-in-law or his wife and her daughter.

The substantive component of the Due Process Clause protects fundamental rights that are so “implicit in the concept of ordered liberty” that “neither liberty nor justice would exist if they were sacrificed.” See Pallco v. Connecticut, 302 U.S. 319, 325-26, 58 S.Ct. 149, 82 L.Ed. 288 (1937). Fundamental rights protected by substantive due process are protected from certain state actions regardless of the procedures the state has in place. Glucks-berg, 521 U.S. at 721. When a state enacts legislation that infringes upon a fundamental right, courts review the law under a strict-scrutiny analysis and uphold it only when it is “narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). The United States Supreme Court has recognized several different liberty interests that are implicit in the Due Process Clause. Glucksberg, 521 U.S. at 720. These liberty interests include “the right to marry, to have children, to direct the education and upbringing of one’s children, to marital privacy, to use contraception, to bodily integrity, and to abortion.” Glucksberg, 521 U.S. at 720. The Supreme Court, however, has stated its reluctance to expand substantive due process by recognizing new fundamental rights:

“[W]e ‘have always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.’ By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore ‘exercise the utmost care whenever we are asked to break new ground in this field,’ lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court.”

Glucksberg, 521 U.S. at 720 (citations omitted). Thus, the substantive due-process analysis must first begin with a careful description of the asserted right. Flores, 507 U.S. at 302. Second, we must determine whether the asserted right is “one of ‘those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.’ ” Williams v. Attorney Gen. of Alabama, 378 F.3d 1232, 1239 (11th Cir.2004) (quoting Glucksberg, 521 U.S. at 720-21), cert. denied, Williams v. King, 543 U.S. 1152, 125 S.Ct. 1335,161 L.Ed.2d 115 (2005).

Here, Crawford contends that the CNA interferes with his right to enter into and to maintain certain familial relationships because, he says, § 15-20-26(e), Ala.Code 1975, prevents him from residing with his son, his minor grandchildren, and his daughter-in-law or his wife and her daughter.

As discussed above, the right to make choices concerning family-living arrangements is a fundamental right that is deeply rooted in this Nation’s history and tradition. See Moore v. City of East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (“A host of cases ... have consistently acknowledged a ‘private realm of family life which the state cannot enter’ ” and “when the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.” (citations omitted)). Thus, the asserted right here — the right to associate with one’s family — is a fundamental right, and this Court must apply a strict-scrutiny analysis to determine whether the CNA is narrowly tailored to serve a compelling state interest. See Herring v. State, [Ms. CR-10-0019, May 27, 2011] — So.3d(Ala. Crim.App.2011).

Under the strict-scrutiny analysis, we begin by determining what interest the State has in impeding the asserted right. Specifically, here, we must determine what interest the State has in prohibiting an adult criminal sex offender from residing with his children, grandchildren, and stepchildren when the offender has been convicted of any criminal sexual offense in which any of his minor children, grandchildren, or stepchildren was the victim; or has been convicted of any criminal sexual offense in which a minor was the victim and the minor resided or lived with the offender at the time of the offense; or has been convicted of any criminal sexual offense involving a child, regardless of whether the offender was related to or shared a residence with the child victim. At issue here is § 15-20-26(c), Ala.Code 1975, which provides:

“(c) No adult criminal sex offender shall establish a residence or any other living accommodation where a minor resides. Notwithstanding the foregoing, an adult criminal sex offender may reside with a minor if the adult criminal sex offender is the parent, grandparent, or stepparent of the minor, unless one of the following conditions applies:
“(1) The adult criminal sex offender’s parental rights have been or are in the process of being terminated as provided by law.
“(2) The adult criminal sex offender has been convicted of any criminal sex offense in which any of the offender’s minor children, grandchildren, or stepchildren were the victim.
“(3) The adult criminal sex offender has been convicted of any criminal sex offense in which a minor was the victim and the minor resided or lived with the offender at the time of the offense.
“(4) The adult criminal sex offender has ever been convicted of any criminal sex offense involving a child, regardless of whether the offender was related to or shared a residence with the child victim.”

In Herring, this Court addressed the State’s compelling interest behind § 15-20-26(c), Ala.Code 1975, and held that “ ‘the State has a compelling interest in protecting its children from harm.’ ” Herring, — So.3d at — (quoting Ex parte 62 So.3d 531, 536 (Ala.Civ.App.2010)).

Because the State has a compelling interest in protecting the public, especially children, from recidivist sex offenders, we must now determine whether the CNA is narrowly tailored to meet that interest. In Herring, this Court addressed this issue and held that § 15-20-26(c), Ala.Code 1975, does not

“provide for a ‘blanket prohibition’ against sex offenders living with minors. Rather § 15-20-26(c), Ala.Code 1975, specifically allows sex offenders to live with their children, stepchildren, or grandchildren, and §§ 15-20-26(c)(3) and (c)(4), Ala.Code 1975, prohibit only a subset of sex offenders from doing so. That subset includes only those offenders who have offended against a child under the age of 12 or a minor who was residing with the offender at the time of the offense. Given the high rate of recidivism among sex offenders and the limited subset of sex offenders to which §§ 15-20-26(c)(3) and (c)(4), Ala.Code 1975, apply, §§ 15-20-26(c)(3) and (c)(4), Ala.Code 1975, are clearly narrowly tailored to protect children only from those sex offenders who pose the highest risk to them, i.e., those who have demonstrated an obvious preference for minors who are in the closest, easiest, and most vulnerable positions when residing with the offender.”

Herring, — So.3d at — (citations omitted).

Because § 15-20-26(c), Ala.Code 1975, is narrowly tailored to meet a compelling State interest it does not violate the substantive component of the Due Process Clause.

II.

Crawford next argues that the CNA violates the prohibition against ex post facto laws contained in Article I, § 10, of the United States Constitution, which states, in pertinent part: “No State shall ... pass any ... ex post facto law.” This Court has previously upheld the CNA against ex post facto challenges. See, e.g., Lee v. State, 895 So.2d 1038 (Ala.Crim.App.2004); Boyd v. State, 960 So.2d 717, 720 (Ala.Crim.App.2006).

Although Crawford recognizes this Court’s holding in Lee, he contends that this Court has not addressed the ex post facto clause since the CNA was amended in 2005, when, he says, “substantial changes” were made to the CNA. (Crawford’s brief, p. 33). Crawford contends in his brief that in 2005 the legislature made the following changes to the CNA:

“[T]he legislature increased the classification of a violation of the act from a Class A misdemeanor to a Class C felony; added the term ‘or any other living accommodation’ as an additional prohibition to establishing a residence, and included the language ‘or if any child was a previous victim’ to those circumstances under which a parent, grandparent, or stepparent may not live with his/her own children, grandchildren or stepchildren. The Amendments further changed the definition of establishing a residence to include a stay of ‘10 or more aggregate days’ ‘in a calendar month.’ ”

(Crawford’s brief, pp. 33-34).

The only substantive change to § 15-26-20(c), Ala.Code 1975, by the legislature in 2005, however, was to the following subdivisions:

“(2) The adult criminal sex offender has been convicted of any criminal sex offense in which any of the offender’s minor children, grandchildren, or stepchildren were the victim.
“(3) The adult criminal sex offender has been convicted of any criminal sex offense in which a minor was the victim and the minor resided or lived with the offender at the time of the offense.
“(4) The adult criminal sex offender has ever been convicted of any criminal sex offense involving a child, regardless of whether the offender was related to or shared a residence with the child victim.”

Act No. 2005-301, Ala. Acts 2005. In 2005, the legislature rewrote subdivisions (2) and (3) and added subdivision (4). Contrary to Crawford’s contention, violations of § 15-20-26(c), Ala.Code 1975, have been classified as a Class C felony since the section became effective on September 1, 1999. See Act No. 1999-572, Ala. Acts 1999.

This Court first addressed the issue of the ex post facto clause as it applies to the CNA in Lee:

“Turning to Lee’s argument that the residency requirement of the CNA is retroactive and punitive in violation of the ex post facto clause, we find guidance in our determination of the merits of his argument in a recent United States Supreme Court case, Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), in which the Court held that the Alaska Sex Offender Registration Act was not unconstitutional and not violative of the ex post facto clause. Although certainly Alabama’s CNA differs from Alaska’s legislation, we nonetheless apply the following governing principles of law gleaned from Smith to this case:
“‘This is the first time we have considered a claim that a sex offender registration and notification law constitutes retroactive punishment forbidden by the Ex Post Facto Clause. The framework for our inquiry, however, is well established. We must “ascertain whether the legislature meant the statute to establish ‘civil’ proceedings.” Kansas v. Hendricks, 521 U.S. 346, 361 (1997). If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is “ ‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ” Ibid, (quoting United States v. Ward, 448 U.S. 242, 248-249 (1980)). Because we “ordinarily defer to the legislature’s stated intent,” Hendricks, supra, at 361, “‘only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty,” Hudson v. United States, 522 U.S. 93, 100 (1997) (quoting Ward, supra, at 249; see also Hendricks, supra, at 361; United States v. Ursery, 518 U.S. 267, 290 (1996); United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365 (1984)).
“‘A.
“ ‘Whether a statutory scheme is civil or criminal “is first of all a question of statutory construction.” Hendricks, supra, at 361 (internal quotation marks omitted); see also Hudson, supra, at 99. We consider the statute’s text and its structure to determine the legislative objective. Flemming v. Nestor, 363 U.S. 603, 617 [ (1960) ]. A conclusion that the legislature intended to punish would satisfy an ex post facto challenge without further inquiry into its effects, so considerable deference must be accorded to the intent as the legislature has stated it.
“ ‘The courts “must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” Hudson, supra, at 99 (internal quotation marks omitted).’
“538 U.S. at 92-93, 123 S.Ct. 1140.
“Here, in creating the residency requirement of the CNA, the Alabama Legislature did not expressly indicate a preference to label the statute punitive. Rather, the Legislature found that the public was in danger from sex offenders because of the high recidivism rate among such offenders. The Legislature also determined that, because of such danger, certain vulnerable segments of the population should be afforded extra protection from sex offenders[;] thus the requirement that sex offenders live some distance from schools and child care facilities. The Legislature concluded that requiring sex offenders to live some distance from schools and child care facilities worked to assist local law enforcement agencies in their efforts to protect their communities. Therefore, from the face of the statute, we can determine that the Legislature intended to create a civil scheme designed to protect the citizens of Alabama and their children from harm, as ‘ “[n]othing on the face of the statute suggests that the legislature sought to create anything other than a civil ... scheme designed to protect the public from harm.” [Kansas v. Hendricks, 521 U.S. 346, 361 (1997).]’ Smith, 538 U.S. at 93, 123 S.Ct. 1140.
“We also note, as the Court did in Smith, that although the statute in question is found in the Criminal Code, such placement is not dispositive of the question of whether the legislative intent in enacting the residency requirement of the CNA was punitive. Rather, ‘[t]he location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one.’ 538 U.S. at 94, 123 S.Ct. 1140. The criminal section of the Alabama Code contains numerous provisions that do not involve criminal punishment, including provisions involving jurisdiction and venue, searches and seizures, victims’ rights, preliminary hearings, etc. Therefore, we do not hold the codification of the Act in the Criminal Code as ‘sufficient to support a conclusion that the legislative intent was punitive.’ 538 U.S. at 95, 123 S.Ct. 1140.
“Because we conclude that the intent of the Alabama Legislature in promulgating the residency requirement of the CNA was to create a civil, nonpunitive legislative scheme, we must now determine whether the statute is so punitive in effect as to negate the legislature’s intent.
“ ‘In analyzing the effects of the Act we refer to the seven factors noted in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963), as a useful framework. These factors, which migrated into our ex post facto case law from double jeopardy jurisprudence, have their earlier origins in cases under the Sixth and Eighth Amendments, as well as the Bill of Attainder and the Ex Post Facto Clauses. See id., at 168-169, and nn. 22-28. Because the Mendoza-Martinez factors are designed to apply in various constitutional contexts, we have said they are “neither exhaustive nor dispositive,” United States v. Ward, 448 U.S. [242], at 249 [ (1980) ]; [United States v. One Assortment of] 89 Firearms, [465 U.S. 354,] at 365, n. 7, but are “useful guideposts,” Hudson [v. United States ], 522 U.S. [93], at 99 [ (1997) ]. The factors most relevant to our analysis are whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose.’
“Smith, 538 U.S. at 97, 123 S.Ct. 1140. ‘It is important to note, however, that “these factors must be considered in relation to the statute on its face,” [Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169 (1963) ], and “only the clearest proof’ will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty, [United States v. Ward, 448 U.S. 242, 249 (1980) ].’ Hudson v. Unit ed States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997).”

Lee v. State, 895 So.2d at 1041-43.

Crawford contends, however, that his case is distinguishable from Lee. Specifically, Crawford argues that this Court in Lee based “its decision, in part, on the fact that Lee failed to plead or prove whether the residency restrictions of the CNA imposed an affirmative disability or restraint on him or any other sex offender,” and, he says, he has affirmatively established that § 15 — 20—26(c), Ala.Code 1975, directly restricts his “right to live with and enjoy his children and grandchildren.” (Crawford’s brief, p. 35).

Although Crawford correctly asserts that, as a convicted sex offender, § 15-20-26(c) limits his ability to live with certain family members, that one factor is “neither exhaustive nor dispositive” of our analysis as to whether, in its necessary operation, the regulatory scheme is actually punitive in nature. Because Crawford cannot establish by “the clearest proof’ that the CNA has a punitive effect, we cannot say that the CNA is an ex post facto law.

Moreover, while Crawford’s case was pending review in this Court, we addressed an ex post facto challenge to the CNA in Cosper v. State, 89 So.3d 186, 190 (Ala.Crim.App.2010). In Cosper this Court again upheld the CNA against an ex post facto challenge stating:

“In Lee v. State, 895 So.2d 1038 (Ala.Crim.App.2004), this Court, relying on Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), concluded that the CNA was not an ex post facto law, either facially or as applied to the appellant in that case, who was an adult criminal sex offender. This Court held that the CNA was intended to create a civil regulatory scheme and that it did not have any punitive effect on the appellant that would negate the legislative intent of the act. 895 So.2d at 1042-43. See Boyd v. State, 960 So.2d 717 (Ala.Crim.App.2006). See also Salter v. State, 971 So.2d 31 (Ala.Civ.App.2007).”

89 So.3d at 190.

Based on the foregoing, the judgment of the circuit court is affirmed.

AFFIRMED.

WELCH, P.J., and WINDOM, KELLUM, and BURKE, JJ., concur.

      . The son whom Crawford moved in with in 2009 was not the victim of the second-degree sodomy.

      . Crawford also cites K.E.W. v. T.W.E., 990 So.2d 375 (Ala.Civ.App.2007), for the proposition that the Court of Civil Appeals "concurred with this court’s opinion as to the irrebuttable nature of the presumption created by the CNA." (Crawford's brief, p. 18). K.E.W. holds, however, that "the marriage of a custodial parent to a registered criminal sex offender constitutes a material change of circumstances; that, as a matter of law, it is not in the best interests of the child to share a living arrangement with a stepparent who is a registered criminal sex offender; and that the trial court erred in denying the father's petition for a change of custody.” K.E.W., 990 So.2d at 382. Thus, K.E.W. is not applicable in this case.

      . Other courts have held that states have a compelling interest in protecting the public, especially children, from recidivist sex offenders. See, e.g., United States v. Benevento, 633 F.Supp.2d 1170 (D.Nev.2009) (holding that the state has a compelling interest in preventing sex offenses by keeping track of sex offenders), United States v. Shenandoah, 572 F.Supp.2d 566 (M.D.Pa.2008) (holding that government has a compelling interest in preventing sexual offenses by alerting citizens and law enforcement officers of the whereabouts of sex offenders); Paul P. v. Verniero, 982 F.Supp. 961 (D.N.J.1997) (holding that a state has a compelling interest in protecting the public from the danger of recidivism posed by sex offenders), State v. Hall, (No. 22969, June 19, 2009) (Ohio Ct.App.2009) (not reported in Ohio App. or N.E.2d) (holding that there is a compelling interest in protecting children from sex offenders).


text:
    Winston Gale STRICKLAND v. STATE of Alabama.
    CR-10-0450.
    Court of Criminal Appeals of Alabama.
    Sept. 30, 2011.

      Ronald Smith, Hunstville, for appellant.
    Luther Strange, atty. gen., and Robin Denise Scales, asst. atty. gen., for appellee.
   JOINER, Judge.

Winston Gale Strickland was convicted of two counts of first-degree robbery, a violation of § 13A-8-41, Ala.Code 1975. The circuit court sentenced Strickland to 25 years’ imprisonment on each conviction and ordered that the sentences run concurrently. Additionally, the circuit court ordered Strickland to pay a $50 fíne, a $50 crime-victims-compensation assessment on each conviction, court costs, and $953 in restitution.

At trial, the State’s evidence tended to show the following. On March 19, 2009, Jana Kennedy was working at the Chevron Food Mart located in Madison County. At approximately 4:45 a.m., Kennedy was in the store along with her two friends— Cameron Rothwell and Brent Calzinski. Around that time, Kennedy was walking toward the women’s restroom when she heard what turned out to be three men enter the store and say “hey” in what she later described as a “mean tone.” Kennedy then heard a “shotgun click,” and she ran behind the counter. Kennedy attempted to push the panic button located under the counter to alert the police, but she was unsuccessful. The three men told her to “[o]pen the register.” The first man was armed with a shotgun and stayed in front of the counter, the second man jumped over the counter next to Kennedy, and the third man followed her through the door behind the counter. The men continued to tell Kennedy to “[ojpen the register” and also told her to “hurry up.” The man who jumped over the counter struck Kennedy in the back of the head because she could not open the register quickly. The man with the shotgun aimed it at Rothwell and Calzinski while Kennedy attempted to open the register. Kennedy stated that she was scared, “because you think if you do something wrong, you can lose one of your best friends.” Eventually, Kennedy opened the register, and the three men took the money out of the register. The men then told Kennedy to open the safe. Kennedy, however, did not have the keys to open the safe. The men then took packs of cigarettes from behind the counter and also took Kennedy’s purse, which contained her cell phone, her money, and her keys. Before the men left the store they used a milk crate to knock the security camera off the wall. After the men left the store, Kennedy asked Roth-well and Calzinski to lock the doors and she telephoned her boss. Rothwell then telephoned the police. When the police arrived, Kennedy, Rothwell, and Calzinski told them what happened and gave them a description of the three men.

Deputy Shawn McClure of the Madison County Sheriffs Office was assigned to investigate the robbery. According to Deputy McClure, the case went unsolved for approximately one month until a Huntsville Police Officer told Deputy McClure that Brandon Bolin may have been involved with the robbery. On April 13, 2009, Deputy McClure interviewed Bo-lin. During the interview, Bolin implicated himself, Derek Watts, Jonte Alexander, and Strickland in the robbery that occurred at the Chevron Food Mart on March 19, 2009.

On April 13, 2009, the Madison County Sheriffs Office took Strickland into custody and questioned him regarding Bolin’s assertions. Deputy McClure read Strickland his Miranda warnings. Strickland indicated that he understood his rights and that he wished to provide a statement regarding the robbery that occurred on March 19, 2009. Strickland told Deputy McClure that he was at his house with his girlfriend, Watts, Alexander, Bolin, and Tekita Marquita. According to Strickland, at some point, they decided to go “hit a lick.” Strickland told Deputy McClure that, initially, he and his girlfriend did not want to go with the others. Strickland told Deputy McClure, however, that he ended up “rolling with them just to see what went down.” Strickland told Deputy McClure that they drove to the store and that Bolin, Alexander, and Watts went into the store to rob it. Strickland denied going into the store. Deputy McClure confronted Strickland and told him that he did not believe that Bolin went into the store because the three “subjects were black” and Bolin is white. Deputy McClure then confronted Strickland with photographs of the three individuals taken by the security camera in the store. Strickland then admitted that he went into the store with Alexander and Watts. Strickland identified himself in the photographs as the man who jumped over the counter and punched Kennedy in the back of the head. Strickland told McClure that Alexander was the individual who had the shotgun during the robbery.

After the State rested its case-in-chief, Strickland moved for a judgment of acquittal, which was denied. Both the State and Strickland then presented closing arguments, and the circuit court charged the jury. The jury returned a guilty verdict on the two counts of first-degree robbery.

On appeal, Strickland argues the following: (1) that his two convictions for first-degree robbery arising out of the same incident violate the prohibition against double jeopardy; (2) that the State’s evidence was insufficient to support his convictions; (3) that the indictment was defective because, he says, it failed to define the essential element of theft; and (4) that a material variance existed between the indictment and the proof offered at trial because, he says, the indictment alleged that he was armed and the evidence at trial showed that he was unarmed.

Strickland first argues that his two convictions for first-degree robbery violate the prohibition against double jeopardy. Specifically, Strickland contends that, although property was taken from both Kennedy and the Chevron Food Mart, only one act of violence occurred and, therefore, he says, the State could not separate the offense into two first-degree-robbery charges.

The State contends that Strickland has failed to preserve this argument for review because, it says, Strickland did not first raise this argument in the circuit court. This Court has held, however, that the issue raised in Strickland’s argument presents a possible jurisdictional defect, which this Court has a duty to notice. See, e.g., Brooks v. State, 76 So.3d 275, 285 (Ala.Crim.App.2011) (citing Williams v. State, 10 So.3d 1083 (Ala.Crim.App.2008)). Thus, regardless of Strickland’s failure to first raise this issue in the circuit court, we must address this issue on appeal.

Strickland was indicted by the Madison County Grand Jury as follows:

“Count 5
“The Grand Jury of said County charge, that before the finding of this Indictment, Winston Gal[e] Strickland, whose name is unknown to the Grand Jury other than as stated, did, in the course of committing a theft of property, to-wit: One (1) purse and contents, the property of, to-wit: Jana Kennedy, use force against the person of Jana Kennedy, with the intent to overcome her physical resistance or physical power of resistance or to compel acquiescence to the taking of or escaping with the property, while the said Winston Gal[e] Strickland, whose name is unknown to the Grand Jury other than as stated, was armed with a deadly weapon or dangerous instrument, to-wit: a shotgun, in violation of Section 13A-8-41 of the Code of Alabama, against the peace and dignity of the State of Alabama.
“Count 6
“The Grand Jury of said County charge, that before the finding of this Indictment, Winston Gal[e] Strickland, whose name is unknown to the Grand Jury other than as stated, did, in the course of committing a theft of property, to-wit: lawful currency of the United States, a further description of which amount and denomination being otherwise unknown to the Grand Jury, the property of, to-wit: Chevon [sic] Food Mart, use force against the person of Jana Kennedy, with the intent to overcome her physical resistance or physical power of resistance or to compel acquiescence to the taking of or escaping with the property, while the said Winston Gal[e] Strickland, whose name is unknown to the Grand Jury other than as stated, was armed with a deadly weapon or dangerous instrument, to-wit: a shotgun, in violation of Section 13A-8-41 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

(C. 14.)

It is well settled that, in first-degree-robbery cases, “[t]he State cannot convert a single theft of various items of property from one victim into separate offenses because to do so violates the prohibition against double jeopardy; the unit of prosecution is the act of violence against the person.” Brooks, 76 So.3d at 285 (quoting Craig v. State, 893 So.2d 1250 (Ala.Crim.App.2004)).

The facts in this case are similar to those presented in Craig v. State, 893 So.2d 1250 (Ala.Crim.App.2004):

“On July 9, 2001, Paulette Gallahar was working at a dry-cleaning business when Craig entered the store, pulled out a weapon, and announced, 1 “Oh by the way, this is a robbery.... I’m taking money out of this store and I’m taking your car.”’ (R. 95.) Craig stole $45 from the cash register and forced Galla-har into the back of the store. In the back of the store, Craig took $5 and car keys from Gallahar’s purse. Craig forced Gallahar to kneel in a corner, put plastic around her head, and held a gun to her head. Another customer entered the front of the store. Craig went to wait on the customer, so as to not cause any suspicion. Gallahar ran to the doorway to the front of the store and shouted, ‘ “It’s a robbery, it’s a robbery.” ’ (R. 103.) She ran out the back door, yelling, jumped into her car, and locked the doors. Craig followed her and, with her keys, unlocked the passenger side door. Craig got into the passenger side of the front seat, grabbed Gallahar’s wrist, and stated, ‘Okay, bitch, you’re driving.’ (R. 105.) Gallahar jerked away from Craig, jumped out of the ear, and ran. Craig drove away from the scene of the crime in Gallahar’s car. Craig was arrested in Kentucky several days later in Gallahar’s car. Gallahar later picked Craig out of a photographic lineup.”

893 So.2d at 1252. In Craig, this Court held:

“ ‘The constitutional guarantee against double jeopardy protects a defendant from being subjected to multiple punishments for the same offense. This guarantee bars the conviction of a defendant for two separate counts of first-degree robbery where the evidence adduced at trial tended to show that the defendant committed only one act of robbery against one victim. Moore v. State, 709 So.2d 1324 (Ala.Crim.App.1997).’
“Young v. State, 724 So.2d 69, 73 (Ala.Crim.App.1998).
“ ‘This is not a case where the same act or transaction constitutes a violation of two distinct statutory provisions. See Blockburger v. United States, 284 U.S. 299 (1932).... The pertinent inquiry in deciding whether [these convictions are] acceptable in the face of constitutional guarantees against double jeopardy then becomes defining the correct unit of prosecution. Bell v. United States, 349 U.S. 81 (1955).
“ ‘ “ ‘A single crime cannot be divided into two or more offenses and thereby subject the perpetrator to multiple convictions for the same offense. Const, of 1901, Art. I, § 9; U.S. Const. Amend. V.’ Ex parte Darby, 516 So.2d 786, 787 (Ala.1987). Such question of double jeopardy is determined by the following principles:
“ ‘ “ ‘It has been aptly noted that “the Blockburger [v. United States, 284 U.S. 299 (1932),] test is insufficient where ... the concern is not multiple charges under separate statutes, but rather successive prosecutions for conduct that may constitute the same act or transaction.” Rashad v. Burt, 108 F.3d 677 (6th Cir.1997). This is because when “a defendant is convicted for violating one statute multiple times, the same evidence test will never be satisfied.” State v. Adel, 136 Wash.2d 629, 965 P.2d 1072 (1998). The “appropriate inquiry” in such a case “asks what ‘unit of prosecution’ was intended by the Legislature as the punishable act.... The inquiry requires us to look to the language and purpose of the statutes, to see whether they speak directly to the issue of the appropriate unit of prosecution, and if they do not, to ascertain that unit, keeping in mind that any ambiguity that arises in the process must be resolved, under the rule of lenity, in the defendant’s favor.” Commonwealth v. Rabb, 431 Mass. 123, 725 N.E.2d 1036 (2000) (concluding that allegedly multiple drug possessions justify multiple charges if the possessions are sufficiently differentiated by time, place or intended purpose, the case here regarding defendant’s possession of drugs at his residence for immediate sale and his possession of drugs at motel for future sales).’
“ ‘ “4 Wayne R. LaFave et al., Criminal Procedure § 17.4(b), 2001 Pocket Part n. 66 (2d ed.1999). See also Project, ‘Twenty-Ninth Annual Review of Criminal Procedure,’ 88 Geo. L.J. 879, 1293 (2000) (‘when the government seeks to prove that a single act or occurrence results in multiple violations of the same statute, the rule of lenity requires only one punishment unless legislative intent to impose multiple punishments is shown’).”
‘Townsend v. State, 823 So.2d 717, 722 (Ala.Crim.App.2001) (footnote omitted [in Girard ]).’
“Girard [v. State ], 883 So.2d [714] at 715-16 [ (Ala.Crim.App.2002) ].
“ ‘ “Robbery is an offense against the person....”’ Ex parte Windsor, 683 So.2d 1042, 1046 (Ala.1996) (quoting Windsor v. State, 683 So.2d 1027, 1032 (Ala.Crim.App.1994)). That is, the victim in this case was Gallahar, not the dry-cleaning business, although some of the property taken belonged to the business. Proof of an actual taking of property is not required to sustain a conviction for robbery. See Cook v. State, 582 So.2d 592 (Ala.Crim.App.1991). Thus it is the use of force, or the threat of the use of force, against the person that constitutes the crime; therefore, the unit of prosecution is the act of violence against the person. Thus, the number of charges against the defendant is not determined by the number of pieces of property actually taken, as was done in this case. Cf. Connolly v. State, 539 So.2d 436, 441-42 (Ala.Crim.App.1988) (‘The State could not convert a single theft of various items of property into separate offenses by alleging the theft of different items in separate indictments. All the property was taken during the same transaction and constituted one offense. Such is not permitted.’).”

893 So.2d at 1254-56.

The evidence in this case, like the evidence in Craig, shows that Strickland, Watts, and Alexander committed one continuous act of violence against Kennedy. The fact that Strickland, Watts, and Alexander took property belonging to both Kennedy and to the Chevron Food Mart does not create two separate first-degree robbery offenses. Thus, Strickland was twice placed in jeopardy by being indicted for and convicted of two separate charges of first-degree robbery committed against one victim. Accordingly, one of Strickland’s convictions for first-degree robbery is to be vacated, along with the accompanying sentence.

This case, therefore, is due to be remanded to the circuit court with orders that the court vacate one of the convictions and sentences entered against Strickland. Due return should be made to this Court within 28 days of the release of this opinion.

Because this case must be remanded to the circuit court for further proceedings, we pretermit discussion of Strickland’s remaining claims until return is made to this Court.

REMANDED WITH INSTRUCTIONS

WELCH, P.J., and WINDOM, KELLUM, and BURKE, JJ., concur.

      . Kennedy testified that the three men did not take any property from Rothwell or Calzinski. Neither Rothwell nor Calzinski testified at trial.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Deputy McClure testified that the phrase "hit a lick” means "to rob somebody.” (R. 117.)

       Note from the reporter of decisions: On December 9, 2011, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On February 24, 2012, that court denied rehearing, without opinion. On April 6, 2012, the Supreme Court denied certiorari review, without opinion (1110658).


author: PER CURIAM. PARIENTE, J.,

text:
    Anton KRAWCZUK, Appellant, v. STATE of Florida, Appellee. Anton Krawczuk, Petitioner, v. Kenneth S. Tucker, etc., Respondent.
    Nos. SC10-680, SC11-10.
    Supreme Court of Florida.
    April 12, 2012.
    Rehearing Denied June 29, 2012.

      Neal A. Dupree, Capital Collateral Regional Counsel, Suzanne Myers Keffer, Assistant CCR Counsel, and Scott Gavin, Staff Attorney, CCRC Southern Region, Fort Lauderdale, FL, for Appellant/Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Stephen D. Ake, Assistant Attorney General, Tampa, FL, for Appellee/Respondent.
   PER CURIAM.

Anton Krawczuk appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

FACTS

The facts of the underlying murder were detailed in this Court’s opinion on direct appeal and are provided below:

On September 13, 1990, a decomposing body was found in a rural wooded area of Charlotte County. Earlier, David Staker’s employer notified Lee County authorities that he had missed several days of work and had not picked up his paycheck. When she went to his home, she found the door open, and it appeared that the house had been robbed. Near the end of September, the Charlotte County body was identified as Staker, and Gary Sigelmier called the Charlotte County Sheriffs office to report that he may have bought the property stolen from Staker’s home. Sigelmier identified Krawczuk and Billy Poirier as the men who sold him the stolen goods, and Lee and Charlotte deputies went to the home Krawczuk and Poirier shared in Lee County. They found both men at home and took them to the Lee County Sheriffs office where, after waiving his Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ] rights, Krawczuk confessed to killing Staker.
According to his confession, Krawczuk had known Staker for about six months and had a casual homosexual relationship with him, as did Poirier. The week before the murder, the pair decided to rob and kill Staker. Krawczuk called and arranged for him and Poirier to visit Staker. Krawczuk picked Poirier up at work and drove him home to change clothes. He parked in a shopping area, and the pair walked to Staker’s house. Once there, they watched television for twenty to thirty minutes, and Krawczuk then suggested that they go to the bedroom. With the undressed trio on the bed, Krawczuk started roughing up Staker and eventually began choking him. Poirier assisted by holding Staker’s mouth shut and pinching his nose closed. Staker resisted and tried to hit Krawczuk with a lamp, but Poirier took it away from him. The choking continued for almost ten minutes, after which Krawczuk twice poured drain cleaner and water into Staker’s mouth. When fluid began coming from Staker’s mouth, Poirier put a wash cloth in it and tape over Staker’s mouth. Krawczuk tied Staker’s ankles together, and the pair put him in the bathtub. They then stole two television sets, stereo equipment, a video recorder, five rifles, and a pistol, among other things, from the house and put them in Staker’s pickup truck. After putting the body in the truck as well, they drove to Sigelmier’s. Sigelmier bought some of the stolen items and agreed to store the others. Krawczuk and Poirier returned to their car, transferred Staker’s body to it, and abandoned Staker’s truck. Krawczuk had scouted a rural location earlier, and they dumped Staker’s body there.'
When the deputies went to Kraw-czuk’s home, they had neither a search warrant nor an arrest warrant. Kraw-czuk moved to suppress his confession as the product of an illegal arrest. In denying that motion the court held that the deputies had probable cause to arrest Krawczuk when they went to his house but that Poirier’s mere submission to authority did not provide legal consent to enter the house. Although the judge found that Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), had been violated, he also found Krawczuk’s confession, made after Miranda rights were given and waived, admissible under New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990). After losing the motion to suppress, Krawczuk sought to change his plea to guilty. The court held an extensive plea colloquy, during which Krawczuk was reminded that pleading guilty cut off the right to appeal all prior rulings. Krawczuk and his counsel also informed the court that Krawczuk wished to waive the penalty proceeding. Neither the state nor the court agreed to this, and the penalty phase took place in early February 1992.
Krawczuk refused to allow his counsel to participate in selecting the penalty phase jury and forbade her from presenting evidence on his behalf. The jury unanimously recommended that he be sentenced to death. Afterwards, the court set a date for hearing the parties and a later date for imposition of sentence. At the next hearing the judge, over Krawczuk’s personal objection, stated that he would look at the presen-tence investigation report and the confidential defense psychiatrist’s report for possible mitigating evidence. At the final hearing the court sentenced Krawczuk to death, finding three aggravators and one statutory mitigator.

Krawczuk v. State, 634 So.2d 1070, 1071-72 (Fla.), cert. denied, 513 U.S. 881, 115 S.Ct. 216, 130 L.Ed.2d 143 (1994). On appeal, Krawczuk raised four claims: (1) that the trial court erred in denying his motion to suppress his confession, (2) that the trial court failed to conduct a proper plea colloquy to ensure that his plea was knowingly and intelligently given, (3) that the trial judge improperly instructed the jury on the heinous, atrocious, or cruel aggravator and erred in finding that it applied, and (4) that the trial court erred in failing to find the existence of nonstatu-tory mitigation. This Court denied each of his claims, and found competent substantial evidence to affirm his conviction and sentence. Id. at 1073-74.

Krawczuk filed his initial motion for postconviction relief on October 3, 1995 under Florida Rule of Criminal Procedure 3.850. On March 15, 2002, he filed an amended motion to vacate, raising twenty-four claims. A. Huff hearing commenced on August 21, 2002, at which the lower court granted an evidentiary hearing for several claims, which was held on January 20-21, 2004, and March 8, 2004.

After hearing the evidence, Judge James Thompson denied Krawczuk’s motion in an expansive order. Krawczuk now seeks review of some of his claims. As discussed in more detail below, we find no merit in Krawczuk’s claims and affirm the order denying postconviction relief and deny his petition for habeas relief.

Judicial Bias

In this issue Krawczuk argues that the postconviction court improperly denied his motion to disqualify the judge and that the judge demonstrated bias by relying on extra-record information. Because, Kraw-czuk cannot demonstrate bias, we disagree.

The question of whether a motion to disqualify is legally sufficient is a question of law, which is reviewed de novo. See Lynch v. State, 2 So.3d 47, 78 (Fla.2008). To the extent that Krawczuk is arguing that the trial court improperly denied his motion to disqualify, we conclude that this claim is without merit. To the extent that Krawczuk is alleging that the trial court erred by relying on extra-record information in violation of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), we conclude that although there was error, the error was harmless.

A motion to disqualify is governed by section 38.10, Florida Statutes (2011), and Florida Rule of Judicial Administration 2.330. See Parker v. State, 3 So.3d 974, 981 (Fla.2009) (citing Cave v. State, 660 So.2d 705, 707 (Fla.1995)). When ruling on the motion, the trial judge is limited to determining the legal sufficiency of the motion:

The term “legal sufficiency” encompasses more than mere technical compliance with the rule and the statute. The standard for viewing the legal sufficiency of a motion to disqualify is whether the facts alleged, which must be assumed to be true, would cause the movant to have a well-founded fear that he or she will not receive a fair trial at the hands of that judge. See Fla. R. Jud. Admin. 2.380(d)(1). Further, this fear of judicial bias must be objectively reasonable. See State v. Shaw, 643 So.2d 1163, 1164 (Fla. 4th DCA 1994). The subjective fear of a party seeking the disqualification of a judge is not sufficient. See Kowalski v. Boyles, 557 So.2d 885 (Fla. 5th DCA 1990). Rather, the facts and reasons given for the disqualification of a judge must tend to show “the judge’s undue bias, prejudice, or sympathy.” Jackson v. State, 599 So.2d 103, 107 (Fla.1992); see also Rivera v. State, 717 So.2d 477, 480-81 (Fla.1998). Where the claim of judicial bias is based on very general and speculative assertions about the trial judge’s attitudes, no relief is warranted. McCrae v. State, 510 So.2d 874, 880 (Fla.1987).

Parker, 3 So.3d at 982.

First, to the extent that Krawczuk is arguing that Judge Thompson improperly denied the motion to recuse himself, his claim is without merit. To establish bias, Krawczuk must demonstrate that he “fears that he ... will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.” Fla. R. Jud. Admin. 2.330. In the instant case, the court properly denied Krawczuk’s motion to disqualify. Nothing in the record indicates that Judge Thompson was biased or prejudiced. As discussed below, although Judge Thompson’s actions were error, they were not indicative of bias. Judge Thompson provided multiple reasons for finding that Dr. Crown’s testimony was not credible, one of which was that Dr. Crown had only briefly met with Krawczuk.

Next, to the extent that Kraw-czuk is alleging that the court improperly relied on extra-record information, there was error, but the error was harmless beyond a reasonable doubt. The United States Supreme Court has condemned the practice of judges using extra-record information to impose the death penalty. Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). Further, we have recognized the impropriety of such actions and have stated:

In Gardner, the United States Supreme Court reminded us that the sentencing process, as well as the trial itself, must satisfy the requirements of the due process clause. Gardner held that using portions of a presentence investigation report without notice to the defendant and without an accompanying opportunity afforded to the defendant to rebut or challenge the report denied due process. That ruling should extend to a deposition or any other information considered by the court in the sentencing process which is not presented in open court. Should a sentencing judge intend to use any information not presented in open court as a factual basis for a sentence, he must advise the defendant of what it is and afford the defendant an opportunity to rebut it.

Porter v. State, 400 So.2d 5, 7 (Fla.1981) (citations omitted). Thus, it is well settled that if a trial judge uses information not stated in open court to make a determination that the death sentence is appropriate, he or she must give the defendant an opportunity to rebut the information.

We have found some instances of reliance on extra-record information to be harmless error:

[W]hile the sentencing order did state that the judge read all of the depositions, read the medical examiner’s report, and checked the victim’s probate records, all of which constitute extra-record materials, the trial judge revealed his consideration of these matters both in letters to the parties and during a motion hearing prior to the penalty phase. Thus, unlike both Gardner and Porter, Vining was advised by the trial judge of his consideration of extra-record information and afforded an opportunity to rebut or impeach the information. Further, like Consalvo, the information relied upon in the sentencing order to support the aggravating factors was otherwise proven at trial. And like Lockhart, “given the overwhelming evidence supporting [the] aggravating factors, this error did not injuriously affect [the defendant’s] substantial rights.”

Vining v. State, 827 So.2d 201, 209-10 (Fla.2002) (citation omitted) (quoting Lockhart v. State, 655 So.2d 69, 74 (Fla.1995)); see also Consalvo v. State, 697 So.2d 805 (Fla.1996) (“Although we find that it was error for the trial court to utilize these out-of-court deposition statements, we find these errors are harmless beyond a reasonable doubt [because] the trial court here made reference to facts which were established at trial by evidence other than that referred to in the sentencing order.”); Lockhart v. State, 655 So.2d 69, 74 (Fla.1995) (finding a Gardner error where “the sentencing order indicate[d] that the judge relied on information from the newspaper articles to support his finding of no mitigation” but also finding “given the overwhelming evidence supporting three aggravating factors, this error did not injuriously affect Lockhart’s substantial rights”). We also find the error here harmless. Although Dr. Crown’s testimony was provided to establish possible mitigation, two other experts testified regarding Krawczuk’s mental health, which served as a part of the basis for Judge Thompson’s findings.

We find it disconcerting for a judge, sitting as finder of fact in an eviden-tiary hearing, to perform his own research into the credentials of an expert witness. We strongly discourage trial judges from performing such actions in the future. There is no reason apparent to this Court for the trial judge to perform his or her own research on the credibility of an expert witness outside of open court. However, in this case, we find the error to be harmless beyond a reasonable doubt because (1) the information was not used to sentence Krawczuk, (2) the information was readily available, and (3) the court’s order denying relief references facts that were established at the evidentiary hearing in addition to the extra-record information.

Ineffective Assistance of Counsel

Krawczuk raises several claims of ineffective assistance of counsel. We find that the postconviction' court properly denied relief on these claims.

Following the United State Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, the defendant must demonstrate both deficiency and prejudice:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

Bolin v. State, 41 So.3d 151, 155 (Fla.2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986)).

There is a strong presumption that trial counsel’s performance was not deficient. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. “[Strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). Furthermore, where this Court previously has rejected a substantive claim on the merits, counsel cannot be deemed ineffective for failing to make a merit-less argument. Melendez v. State, 612 So.2d 1366, 1369 (Fla.1992).
In demonstrating prejudice, the defendant must show a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Because both prongs of the Stñckland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent, substantial evidence, but reviewing the circuit court’s legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).

Johnston v. State, 63 So.3d 730, 737 (Fla.2011) (parallel citations omitted).

As this Court has said, “the obligation to investigate and prepare for the penalty portion of a capital case cannot be overstated.” State v. Lewis, 838 So.2d 1102, 1113 (Fla.2002).

[O]ur principal concern in deciding whether [counsel] exercised “reasonable professional judgmen[t]” is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence ... was itself reasonable. In assessing counsel’s investigation, we must conduct an objective review of their performance, measured for “reasonableness under prevailing professional norms,” which includes a context-dependent consideration of the challenged conduct as see[n] “from counsel’s perspective at the time.”

Orme v. State, 896 So.2d 725, 731 (Fla.2005) (quoting Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)).

First, Krawczuk claims that counsel was ineffective for failing to investigate and present mitigation. Further, Kraw-czuk claims that counsel’s failure rendered his waiver of mitigation in the penalty phase invalid. The lower court found counsel deficient for failing to discover mitigation related to Krawczuk’s background, but found that Krawczuk was not prejudiced because he was emphatic that counsel not contact his family and probably would not have permitted counsel to present the information during the penalty phase. The postconviction court properly denied this claim.

In Grim v. State, 971 So.2d 85 (Fla.2007), the defendant was tried and found guilty of first-degree murder and instructed his attorneys not to present mitigating evidence. The trial court conducted a Koon hearing and determined that Grim freely, voluntarily, and knowingly decided to waive mitigation. Grim, 971 So.2d at 91. Grim expressed his desire multiple times during the proceedings to receive either a not guilty verdict or the death penalty. During postconviction proceedings, Grim argued that counsel was ineffective for failing to fully investigate and present mitigation and that these failures rendered his waiver invalid. Id. at 99. We noted:

When a defendant, against his counsel’s advice, refuses to permit the presentation of mitigating evidence in the penalty phase, counsel must inform the court on the record of the defendant’s decision. Counsel must indicate whether, based on his investigation, he reasonably believes there to be mitigating evidence that could be presented and what the evidence would be. The court should then require the defendant to confirm on the record that his counsel has discussed these matters with him, and despite counsel’s recommendation, he wishes to waive presentation of penalty phase evidence.

Grim, 971 So.2d at 100 (quoting Koon, 619 So.2d at 250). We further noted:

We have recognized that a defendant’s waiver of his right to present mitigation does not relieve trial counsel of the duty to investigate and ensure that the defendant’s decision is fully informed. See, e.g., State v. Lewis, 838 So.2d 1102, 1113 (Fla.2002) (“Although a defendant may waive mitigation, he cannot do so blindly; counsel must first investigate all avenues and advise the defendant so that the defendant reasonably understands what is being waived and its ramifications and hence is able to make an informed, intelligent decision.”).

Grim, 971 So.2d at 100. Ultimately, we found that the record did not support a claim of failure to investigate because counsel “did not latch onto Grim’s desire not to present mitigation, but instead, repeatedly tried to dissuade him.” Id.

Likewise, in Waterhouse, we found:

[TJhis was not simply a case where a defense attorney latched on to a defendant’s refusal to present mitigating evidence. The evidence in support of mitigation had already been investigated and accumulated as part of Water-house’s previous collateral and habeas proceedings. In fact, the record in this case includes the affidavit of Dr. Fred S. Berlin, who concluded that Waterhouse may have been under the influence of an extreme emotional disturbance at the time of the commission of the crime and that this may have impaired his capacity to conform his conduct to the requirements of the law. Defense counsel had also obtained the necessary paperwork to bring Waterhouse’s brother from Louisiana, but Waterhouse indicated that if that were done, he would contact his brother and tell him to avoid the proceedings. Additionally, after the trial court appointed Dr. Charles H. Whea-ton to examine Waterhouse for the possibility that he might suffer from organic brain damage, Waterhouse refused to meet ■with the doctor.
Accordingly, because the only reason why mitigating evidence was not presented was entirely due to Waterhouse’s own conduct, we cannot deem defense counsel deficient for failing to present such evidence. Thus, we conclude that the trial court correctly denied an evi-dentiary hearing as to this claim.

Waterhouse, 792 So.2d at 1184 (footnote omitted).

In each of these cases, we concluded that trial counsel could not be deemed ineffective for following their client’s wishes not to present mitigation. “An attorney will not be deemed ineffective for honoring his client’s wishes.” Brown v. State, 894 So.2d 137, 146 (Fla.2004) (citing Waterhouse, 792 So.2d at 1183); Sims v. State, 602 So.2d 1253, 1257-58 (Fla.1992); see also Sims v. State, 602 So.2d 1253, 1257-58 (Fla.1992) (“[W]e do not believe counsel can be considered ineffective for honoring the client’s wishes”). The record demonstrates that Krawczuk would not permit his attorney to involve his family. Accordingly, counsel’s ability was limited by the defendant’s desire not to include his family. See Brown, 894 So.2d at 146. Therefore, we agree that counsel’s actions could not be deemed ineffective. Id.

It is clear that there was significant mitigation available that was not uncovered by counsel. However, it is equally clear that Krawczuk repeatedly insisted that counsel not pursue mitigation and not involve his family. Further, the postcon-viction court found that the information that would have been presented by the family was available through Dr. Keown’s report, which Krawczuk also refused to allow counsel to present. Because of Krawczuk’s instructions to counsel not to involve his family, we find that Krawczuk cannot establish prejudice.

Next, Krawczuk combines three of his postconviction 'claims and argues that the prosecutor made inappropriate remarks during the trial, that the trial court improperly instructed the jury, and that he received ineffective assistance of counsel because she failed to object to the comments made by the prosecutor and failed to request a jury instruction on mercy. The lower court denied these claims finding that they were procedurally barred and without merit, that any error made by the prosecutor was harmless, and that Krawczuk could not establish deficient performance. Because Krawczuk’s claim is not supported by the record and, even if it were, because Krawczuk cannot establish prejudice, the lower court properly denied relief on this claim.

Third, Krawczuk argues that counsel was ineffective for failing to object to the trial court’s instruction that sympathy should play no role in their deliberations, this claim is without merit. The trial judge used the standard jury instruction, stating that “[t]his case must not be decided for or against anyone because you feel sorry for anyone or are angry at anyone.” Fla. Std. Jury Instr. (Crim.) 3.10. Counsel cannot be deemed ineffective for failing to object to the standard instruction.

Fourth, Krawczuk argues that he received ineffective assistance of counsel when trial counsel failed to raise and litigate the voluntariness of his confession. The lower court granted an evidentiary hearing on this issue, but determined that Krawczuk was not entitled to relief because the claim was procedurally barred and without merit. Because Krawczuk is re-arguing the merits of the trial court’s denial of the motion to suppress his confession, the claim is procedurally barred. His assertion that he received ineffective assistance of counsel is without merit. Additionally, his claim of ineffective assistance of counsel for failure to raise and litigate the voluntariness of his confession, the claim is insufficiently pleaded and without merit. As noted by this Court on direct appeal and by the lower court in its order denying postconviction relief, trial counsel raised this issue in a motion to suppress. See Krawczuk, 634 So.2d at 1072-73. Further, Krawczuk failed to allege that he would not have pleaded guilty but for counsel’s alleged deficiency. Because the record reflects that counsel raised the vol-untariness of Krawczuk’s confession in a motion to suppress and demonstrates that Krawczuk did not allege prejudice, we do not find that counsel was ineffective.

Finally, Krawczuk argues that trial counsel was ineffective for failing to offer testimony of mental health experts and others at the hearing on the motion for suppression. The lower court properly found the claim was unsupported by the evidence or law. Specifically, the lower court found that trial counsel completely and fully litigated the motion to suppress and that Krawczuk presented no additional evidence at his postconviction evidentiary hearing that would have changed the court’s denial of the motion to suppress.

Accordingly, we find that the lower court properly found that Krawczuk was unable to prove prejudice.

Prosecutor’s Remarks

Krawczuk argues that at trial the prosecutor made several erroneous remarks that led the jury to believe that they had no choice but to return a recommendation for the death sentence. Krawczuk further argues that the trial court improperly instructed the jury, which compounded this error. Finally, Krawczuk argues that trial counsel was ineffective for her failure to object or otherwise attempt to correct these errors. Each of these claims must fail.

Turning to the prosecutor’s remarks, Krawczuk claims that during voir dire and closing arguments, the prosecutor suggested that the law required the jury to recommend the death penalty if the aggravating circumstances outweighed the mitigating circumstances. Additionally, Kraw-czuk argues that the prosecutor suggested on multiple occasions that the jury should decide the case without regard for sympathy. The postconviction court correctly concluded that the claim was procedurally barred because trial counsel failed to object to the comments and the issue was not raised on direct appeal, nor did the remarks constitute fundamental error. See Rogers v. State, 957 So.2d 538, 547 (Fla.2007) (“We have consistently held that substantive claims of prosecutorial misconduct could and should be raised on direct appeal and are thus procedurally barred from consideration in a postconviction motion.”) (citations and internal quotations omitted); Lamarca v. State, 931 So.2d 838, 851 n. 8 (Fla.2006).

As for Krawczuk’s claim that counsel was ineffective for failing to object to these remarks, we find no deficiency where counsel was not permitted to participate in the proceeding. As it relates to the prosecutor’s comments regarding the jury’s recommendation, we have said:

Florida law provides that a penalty phase jury, after deliberating, shall render an advisory sentence to the court. That sentence is to be based on:
(a) Whether sufficient aggravating circumstances exist ...
(b) Whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances found to exist; and
(c) Based on these considerations, whether the defendant should be sentenced to life imprisonment or death.
§ 921.141(2)(a), Fla. Stat. (2008). “[A] jury is neither compelled nor required to recommend death where aggravating factors outweigh mitigating factors.” Cox v. State, 819 So.2d 705, 717 (Fla. 2002) (quoting Henyard v. State, 689 So.2d 239, 249-50 (Fla.1996)).

Anderson v. State, 18 So.3d 501, 517 (Fla.2009). Further, we found that a defendant is “not prejudiced by the improper statements of the prosecutors [where] the juries were given the proper instructions for analyzing aggravating and mitigating circumstances.” Anderson, 18 So.3d at 517. As noted by the postconviction court, the record indicates that the jury was properly instructed. Accordingly, we find that Krawczuk has not demonstrated prejudice.

Innocent of the Death Penalty

Krawczuk claims that he is innocent of the death penalty because he received a disparate sentence even though he was as culpable or less culpable than Poirier, who received a sentence of thirty-five years. Because this claim was, or should have been, raised on direct appeal, the lower court correctly found that it was procedurally barred. Further, even if we consider the claim, it is without merit because Poirier pleaded guilty to second-degree murder. See Smith v. State, 998 So.2d 516, 528 (Fla.2008); England v. State, 940 So.2d 389, 406 (Fla.2006); Right v. State, 784 So.2d 396, 401 (Fla.2001) (“[I]n instances where the codefendant’s lesser sentence was the result of a plea agreement or prosecutorial discretion, this Court has rejected claims of disparate sentencing.”); Brown v. State, 473 So.2d 1260, 1268 (Fla.1985). Here, because Poirier pleaded guilty to second-degree murder and was sentenced to thirty-five years, Krawczuk’s claim is without merit. Melendez v. State, 612 So.2d 1366, 1368-69 (Fla.1992) (“Arguments relating to proportionality and disparate treatment are not appropriate where the prosecutor has not charged the accomplice with a capital offense.”).

Lastly, we previously found that Kraw-czuk was the more culpable party. As summarized by the lower court’s findings: (1) Krawczuk met the victim six months before the incident and started going to the victim’s house three months prior, but Poirier had only been with Krawczuk to the victim’s house one time prior to the murder; (2) Krawczuk initiated the events by suggesting they go to the bedroom, he initiated the roughhousing, he pinned the victim down, choked him, poured Crystal Vanish down the victim’s throat, and poured water in; and (3) Krawczuk was older and bigger than Poirier, more aggressive, and Poirier was called Kraw-czuk’s protégé. See Krawczuk, 634 So.2d at 1074 n. 5 (“Krawczuk ‘scouted the site to dispose [of] the body, made the arrangements with the victim to go to his house, physically strangled the victim with the co-defendant’s assistance, placed the drain cleaner in the victim’s mouth and steadied the co-defendant when he was on the point of becoming sick’ and ... the psychiatrist thought Krawczuk was overstating when he said he had been influenced by Poirier. Additionally, Krawczuk was older and bigger than Poirier.”).

Krawczuk’s Confession

With respect to Krawczuk’s argument that his statement to the police was involuntary, the lower court properly found this claim procedurally barred because the issue was already considered and rejected by this Court on direct appeal. See Krawczuk, 634 So.2d at 1072 (“[W]e hold that the court’s ruling on the motion to suppress is not cognizable on appeal.... [Even] if the issue had been preserved ... we would find it to have no merit.”). Accordingly, Krawczuk’s attempt to raise this claim anew is procedurally barred.

PETITION FOR HABEAS CORPUS

Krawczuk’s single claim on petition for habeas corpus can be summarized as a complaint against this Court’s proportionality review. The subparts to this claim are that (a) this Court failed to complete a meaningful proportionality review because it did not look to other cases, (b) this Court’s review was hindered by the incomplete investigation into mitigating factors, and (c) appellate counsel did not raise disparate treatment on appeal. Because each of these subclaims should be denied, we deny the petition.

First, relating to Krawczuk’s first two points, a petition for habeas corpus is not the proper method for raising a claim that could have been raised on appeal or in a postconviction proceeding. Mills v. Dugger, 559 So.2d 578, 579 (Fla.1990) (“Habeas corpus is not to be used for additional appeals of issues that could have been or ... were raised on appeal or in other postconviction motions.”). Accordingly, Krawczuk’s allegations regarding trial counsel’s ineffectiveness and the lack of mitigation on the record are not properly before this Court. Additionally, they are a rehashing of his arguments in his postconviction appeal.

Further, to the extent that Krawczuk claims that this Court failed to perform a proportionality review, his argument is not supported by the record or caselaw. On direct appeal in the instant case, we stated:

The trial court followed the dictates of Campbell v. State, 571 So.2d 415 (Fla.1990), and Rogers v. State, 511 So.2d 526 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988), and there is competent substantial evidence to support the conclusion that death is the appropriate sentence. Cf. Durocher v. State, 604 So.2d 810 (Fla.1992), cert. denied, 507 U.S. 1010, 113 S.Ct. 1660, 123 L.Ed.2d 279 (1993); Pettit v. State, 591 So.2d 618 (Fla.), cert. denied, 506 U.S. 836, 113 S.Ct. 110, 121 L.Ed.2d 68 (1992).

Krawczuk v. State, 634 So.2d 1070, 1073-74 (Fla.1994). Thus, the Court found the death sentence appropriate. This Court has stated, “[A] proportionality review is inherent in this Court’s direct appellate review and the issue is considered regardless of whether it is discussed in the opinion or raised by a party....” Patton v. State, 878 So.2d 368, 380 (Fla.2004). The Patton court further explained:

“The mere fact that proportionality is not mentioned in the written opinion does not mean that no proportionality review was conducted.” Ferguson v. Singletary, 632 So.2d 53, 58 (Fla.1994) (citing Booker v. State, 441 So.2d 148, 153 (Fla.1983)). In Booker, this Court explained that failure to mention proportionality in its opinion does not mean that the Court did not consider it. See 441 So.2d at 153. This Court stated that a proportionality review “is an inherent aspect of our review of all capital cases. We need not specifically state that we are doing that which we have already determined to be an integral part of our review process.” Id.

Patton, 878 So.2d at 380. Further, relating to the argument that the Court did not mention other cases in its review, we have said:

[Although we did not specifically mention other capital cases in our decision on Booker’s direct appeal, we did in fact undertake proportionality review. That review is an inherent aspect of our review of all capital cases. We need not specifically state that we are doing that which we have already determined to be an integral part of our review process.

Booker v. State, 441 So.2d 148, 153 (Fla.1983). Additionally, we have stated, “We reject the assertion that in our written opinion we must explicitly compare each death sentence with past capital cases.” Messer v. State, 439 So.2d 875, 879 (Fla.1983). Accordingly, Krawczuk’s argument that this Court’s failure to explicitly weigh the proportionality of his sentence in its opinion must fail.

Finally, as it relates to Krawczuk's third point and to the extent that Krawczuk argues that appellate counsel failed to raise his and Poirier’s disparate sentencing, this argument is not supported by the record. Appellate counsel did mention Poirier’s sentence in the initial brief although not as a distinct issue. Further, even if it had been raised as a distinct issue it would have been rejected by this Court because Poirier pleaded to, and was convicted of, a lesser offense. We noted in our opinion that Krawczuk was the more culpable defendant. See Krawczuk, 634 So.2d at 1073 n. 5. We have repeatedly upheld death sentences where a codefen-dant pleaded guilty and received a life sentence. See Smith v. State, 998 So.2d 516, 528 (Fla.2008); England v. State, 940 So.2d 389, 406 (Fla.2006); Kight v. State, 784 So.2d 396, 401 (Fla.2001) (“[I]n instances where the codefendant’s lesser sentence was the result of a plea agreement or prosecutorial discretion, this Court has rejected claims of disparate sentencing.”); Brown v. State, 473 So.2d 1260, 1268 (Fla.1985). We do not address the remainder of Krawczuk’s petition because it is a reassertion of his claims on appeal of the denial of his postconviction motion.

For the foregoing reasons, we affirm the court’s denial of Krawczuk’s motion for postconviction relief. Additionally, we deny his petition for writ of habeas corpus.

It is so ordered.

CANADY, C.J., and LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

PARIENTE, J.,

concurring in result.

I concur in denying postconviction relief, but write to emphasize the importance of counsel conscientiously investigating all avenues of mitigation, even in light of a difficult defendant. The defendant claimed that his waiver of mitigation was neither knowing nor voluntary; I agree that postconviction relief on this issue was properly denied. However, I disagree with the majority’s reasoning that Kraw-czuk failed to establish prejudice based on his refusal to allow counsel to contact his family. See majority op. at 205. Rather, when a defendant waives mitigation, the finding of prejudice must be centered on whether the waiver of mitigation is knowing and voluntary. See, e.g., Deaton v. Dugger, 635 So.2d 4, 8 (Fla.1993).

In this case, the trial court in fact found that defense counsel’s investigation was deficient because the record did “not support the unequivocal direction to not investigate ... required by the law as it existed at the time in question.” Ultimately, however, the trial court found that even if Krawczuk had been more fully advised about the potential mitigation evidence, he failed to show that “he would have authorized trial counsel to present such evidence at either the penalty phase trial or at the Spencer hearing.”

It is undeniably a challenge for defense counsel, faced with a client who states that he does not want to pursue mitigation or have the lawyer contact his family, to nevertheless comply with the duties that have been imposed by case law. However, because we are dealing literally with a life or death matter and a client who may not have yet faced the reality that the death penalty may be imposed, counsel’s very-weighty obligations do not end with the fact that the client expresses the desire to not present mitigation or contact family members. As was explained in Grim v. State, 971 So.2d 85, 100 (Fla.2007), despite the client’s wishes, the lawyer appropriately “recognized he still had a duty to develop mitigation.” Therefore, the lawyer in Grim did not “latch onto Grim’s desire not to present mitigation, but instead, repeatedly tried to dissuade him.” Id. Further, the lawyer uncovered a substantial amount of mitigation, obtained a mental health expert, and contacted several mitigation witnesses. For all of these reasons, we upheld the trial court’s conclusion that that trial counsel conducted a reasonable investigation in light of Grim’s decision to waive mitigation and determined that trial counsel’s actions were not deficient and that Grim could not establish prejudice. Id. at 100-01; see also Waterhouse v. State, 792 So.2d 1176, 1183-84 (Fla.2001) (rejecting an ineffective assistance of counsel claim where the defendant refused to permit his attorney to present mitigating evidence and refused to meet with the mental health expert in light of the fact that his attorney had already investigated potential mitigation).

In addition, in Grim, despite the waiver of mitigation, the trial court ordered a presentence investigation report and appointed special counsel to investigate and present available mitigation. Grim, 971 So.2d at 90. In other words, not only did counsel act properly, but the court also proceeded diligently by taking the extra step of appointing special counsel. See, e.g., Muhammad v. State, 782 So.2d 343, 363-64 (Fla.2001) (approving the procedure that allows trial courts to call witnesses on their own to determine whether mitigating circumstances apply and granting trial courts the discretion to appoint special counsel to assist in discovering mitigation). These extra steps assist this Court in ensuring that a death sentence for a defendant who insists on waiving mitigation does not lead to the death penalty being arbitrarily imposed on any particular defendant. See Muhammad, 782 So.2d at 368-69 (Pariente, J., concurring specially); Russ v. State, 73 So.3d 178, 200-02 (Fla.2011) (Pariente, J., concurring).

At the evidentiary hearing in this case, Krawczuk presented testimony from his brother and stepfather that related to extensive abuse he had endured at the hands of his mother. However, at the time of the waiver, counsel had the report of Dr. Keown that indicated the abuse had occurred and that report had been furnished to Krawczuk. In addition, trial counsel had obtained military records and a psychiatrist’s report, both of which had been given to Dr. Keown. Given the facts developed at the evidentiary hearing and the findings of the postconviction court, I do not find a basis for concluding that the waiver of mitigation was not knowing or voluntary and therefore agree that Kraw-czuk cannot establish prejudice.

Thus, I concur in the affirmance of the denial of postconviction relief.

      . Huff v. State, 622 So.2d 982 (Fla.1993).

      . We take this opportunity to note that the delay between the evidentiary hearing and the issuance of the order denying relief was unusually long. Although the evidentiary hearings were held in January and March 2004, the court did not issue its order until January 25, 2010. During oral argument, appellate counsel could not offer an explanation for the delay. We are concerned that this sort of delay undermines the interests of justice.

      . Koon v. Dugger, 619 So.2d 246 (Fla.1993). Koon is not applicable to the present case because the penalty phase occurred in 1992, before Koon was decided. See, e.g., Waterhouse v. State, 792 So.2d 1176, 1184 (Fla.2001) (“Koon is technically inapplicable to this case because the penalty phase proceedings below occurred some three years prior to the Koon decision becoming final....”); Allen v. State, 662 So.2d 323, 329 (Fla.1995) (noting that the ruling in Koon was prospective).

      . We addressed the issue in a footnote:
      The court found no disparate treatment between Krawczuk and Poirier, noting that Krawczuk “scouted the site to dispose [of] the body, made the arrangements with the victim to go to his house, physically strangled the victim with the co-defendant’s assistance, placed the drain cleaner in the victim’s mouth and steadied the co-defendant when he was on the point of becoming sick” and that the psychiatrist thought Krawczuk was overstating when he said he had been influenced by Poirier. Additionally, Krawczuk was older and bigger than Poirier.

        Krawczuk, 634 So.2d at 1073 n. 5 (quoting trial court’s order).