Lack-of-Remorse Sentencing Factor Must Be Grounded in Trial Record, Not Punishment for Sentencing Silence (Bustamente v. State)

1. Introduction

In Bustamente v. The State (Supreme Court of Georgia, decided March 17, 2026), Elias Bustamente appealed only his sentences for his 2022 convictions arising from the July 5, 2020 shooting death of Michael Arreola. Bustamente was convicted of malice murder and related firearm offenses and was sentenced to life without parole (plus consecutive probationary terms).

The appeal presented a narrow constitutional challenge: whether the trial court violated federal and Georgia due process by (a) telling Bustamente at sentencing that apologizing “could seriously harm [his] appeal,” and (b) then imposing a harsher sentence based on Bustamente’s “lack of remorse.”

The Court affirmed, emphasizing the distinction between considering lack of remorse evidenced in the trial record versus punishing a defendant for exercising the right to remain silent at sentencing.

2. Summary of the Opinion

The Supreme Court of Georgia held that the sentencing judge did not rely on any improper consideration. Under Georgia law, a sentencing court may consider evidence admitted during the guilt-innocence phase and the defendant’s conduct and attitude during trial. The trial court clarified—both at the motion-for-new-trial hearing and in its written order—that it did not treat Bustamente’s silence at the sentencing hearing as lack of remorse. Instead, it considered his demeanor and lack of remorse as reflected in his trial testimony and, “mostly,” the video interview with police.

The Court also noted that although judicial “advice about the perils of testifying at sentencing is best given by defense lawyers and not trial judges,” Bustamente failed to show the judge’s comments caused any constitutional harm or affected the sentence.

3. Analysis

A. Precedents Cited

  • Apprendi v. New Jersey, 530 U.S. 466, 466 (2000): Cited for a general due process principle—jury determination beyond a reasonable doubt of each element of the charged offense. The Georgia Court treated this as largely inapposite because Bustamente’s complaint targeted sentencing procedure, not proof of guilt or an Apprendi-type factfinding enhancement.
  • Gardner v. Florida, 430 U.S. 349, 358 (1977): Cited for the proposition that a defendant has a legitimate interest in the character of the procedure leading to a sentence. The Georgia Court used it as background due process framing, but resolved the case on Georgia sentencing doctrine and the absence of improper reliance on sentencing silence.
  • Wilson, 315 Ga. at 741 (2023): The controlling Georgia authority. The Court quoted Wilson for the rule that a sentencing court may consider evidence properly admitted at trial and “the conduct and attitude of the defendant during trial,” and is not limited to facts proven to the jury beyond a reasonable doubt for purposes of choosing a lawful sentence.
  • Blake v. State, 273 Ga. 447, 450 (2001): Reinforced that a defendant’s demeanor and lack of remorse can be relevant to sentencing as part of the court’s evaluation of the defendant’s character and attitude.
  • Jones v. State, 319 Ga. 140, 147-48 n.2 (2024): Cited on preservation. The Court “assume[d] without deciding” that Bustamente preserved his sentencing claim by raising it in his motion for new trial—mirroring Jones’ approach where a sentencing issue was raised post-sentencing.
  • Marshall v. State, 309 Ga. 698, 702-03 (2020): Used as a contrast on waiver. Marshall held an alleged (non-void) sentencing error was waived when not raised at sentencing or in a motion for new trial, and counsel affirmatively waived objections. The Court cited this to frame why preservation could be a problem even though it ultimately assumed preservation here.
  • Dougherty v. State, 321 Ga. 577, 585 (2025): Cited to reinforce that Georgia constitutional due process arguments must be preserved by a specific sentencing objection; otherwise they are not reviewable on appeal.
  • OCGA § 16-5-1(e)(1) and Wilson, v. State, 315 Ga. 728, 741 (2023): Cited to confirm the sentence was statutorily authorized. A murder conviction permits death, life without parole, or life, and “eligible for a sentence of life without parole” regardless of aggravators.

Collectively, these authorities shaped a two-step approach: (1) confirm the sentence is authorized, and (2) confirm the sentencing judge did not rely on an improper consideration—particularly, punishment for the exercise of constitutional rights.

B. Legal Reasoning

  1. Reframing the claim. Although Bustamente invoked “due process,” he offered little developed constitutional analysis and mainly argued the judge’s comments and the remorse rationale were improper. The Court treated the issue as whether the judge relied on an improper factor.
  2. Permissible scope of sentencing considerations. Relying on Wilson and Blake v. State, the Court reiterated that a judge may consider the defendant’s “conduct and attitude” during trial and evidence admitted in the guilt phase. Thus, “lack of remorse” is not categorically off limits.
  3. Key factual finding: the judge did not punish sentencing silence. The Court credited the trial judge’s later clarification that “lack of remorse” referred to Bustamente’s trial posture and especially the police interview video, not his choice not to speak at sentencing. The written order likewise stated the court did not consider “Defendant’s lack of testimony at the sentencing hearing.”
  4. No showing of causation or prejudice from the judge’s warning. Bustamente did not argue—much less prove—that the judge’s warning caused him to remain silent, or that his silence affected sentencing. The record, as construed by the Court, showed the sentence decision rested on trial-record demeanor and the interview, not on an inference drawn from non-testimony at sentencing.
  5. Normative admonition (dicta) without reversal. The Court agreed it is better practice for defense counsel—not the judge—to advise on the appellate risks of allocution. But absent demonstrated error affecting sentencing, the comment did not warrant resentencing.

C. Impact

1) Clarifies the evidentiary “source” problem for remorse findings. The decision reinforces that Georgia sentencing courts may rely on lack of remorse when it is evidenced by trial testimony, demeanor, and admissible materials (like a recorded police interview), rather than inferred from a defendant’s exercise of the right not to speak at sentencing.

2) Encourages cleaner sentencing records. Trial judges who mention remorse will likely be careful to anchor that assessment explicitly in the trial record, and to avoid any suggestion that silence at sentencing is being treated as an aggravating factor.

3) Signals preservation risks for constitutional sentencing claims. By discussing Jones v. State, Marshall v. State, and Dougherty v. State, the Court underscores that litigants should object at sentencing (and clearly articulate any Georgia-constitutional theory) to avoid waiver arguments on appeal.

4) Provides practical guidance on judicial allocution warnings. Although not a holding, the Court’s statement that such advice is “best given” by defense counsel may influence courtroom practice by discouraging judges from offering strategic or appellate-risk advice in the allocution colloquy.

4. Complex Concepts Simplified

Allocution
The defendant’s opportunity to speak before sentencing—often to apologize, explain, or ask for mercy. The defendant may also choose to remain silent.
Due process at sentencing
The Constitution requires fundamentally fair sentencing procedures. A judge generally cannot punish a defendant for exercising constitutional rights (such as the right to remain silent).
“Lack of remorse” as a sentencing factor
Courts sometimes treat remorse as relevant to a defendant’s character, risk, and prospects for rehabilitation. This case emphasizes that the judge’s conclusion must not be based on an impermissible inference from sentencing silence.
Preservation / waiver
To raise an error on appeal, the party usually must object in the trial court at the right time and on the right grounds. Failing to do so can forfeit (“waive”) the issue.
“Vacated by operation of law” and “merged for sentencing”
In Georgia murder cases, felony murder counts commonly are vacated once malice murder is sentenced, and an aggravated assault may merge into murder so the defendant is not punished twice for the same act.

5. Conclusion

Bustamente v. State affirms a practical rule in Georgia sentencing: a judge may consider a defendant’s lack of remorse when that assessment is grounded in admissible evidence and the defendant’s conduct and attitude during trial (including recorded statements), but the sentencing decision must not be based on penalizing the defendant’s silence at sentencing. Even where a judge’s allocution warning is ill-advised, resentencing requires a demonstrated connection between the challenged practice and an improper sentencing consideration or prejudice—something the Court found absent on this record.