381 F.2d 636 (4th Cir. 1967), 11005, Patton v. State of N. C.

Docket Nº:11005.
Citation:381 F.2d 636
Party Name:Eddie W. PATTON, Appellee, v. STATE OF NORTH CAROLINA, Appellant.
Case Date:June 14, 1967
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 636

381 F.2d 636 (4th Cir. 1967)

Eddie W. PATTON, Appellee,

v.

STATE OF NORTH CAROLINA, Appellant.

No. 11005.

United States Court of Appeals, Fourth Circuit.

June 14, 1967

Argued Feb. 6, 1967.

Theodore C. Brown, Jr., Staff Atty., Office of Atty. Gen. of North Carolina (T. Wade Bruton, Atty. Gen. of North Carolina, on brief), for appellant.

William W. Van Alstyne, Durham, N.C. (Court-assigned counsel), for appellee.

Before SOBELOFF, J. SPENCER BELL [*] and WINTER, Circuit Judges.

SOBELOFF, Circuit Judge:

The question raised by this appeal is whether a defendant may be sentenced to a longer term of imprisonment at his second trial than he received after his first conviction, vacated on constitutional grounds.

Unrepresented by counsel, the petitioner, Eddie W. Patton, was tried in October, 1960 and convicted of armed robbery after a plea of nolo contendere, entered at the close of the State's evidence.

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He was sentenced to prison for a term of twenty years. No appeal was taken, but in April 1964, Patton applied for a state post-conviction hearing, and on the basis of the Supreme Court's landmark decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), was awarded a new trial.

Patton remained in custody, and on February 17, 1965, after tendering a plea of not guilty, he was again convicted by jury on the original indictment. This time he had the assistance of counsel, who called the court's attention to the fact that the defendant had been continuously imprisoned from June 10, 1960 and had already served nearly five years for the offense. Although the trial judge paid lip service to the idea of crediting Patton with that portion of the initial twenty-year sentence already served, he actually increased Patton's punishment by imposing, in effect, a twenty-five-year sentence and then deducting five years for the time served. 1 Thus, as a result of seeking and obtaining a new trial, the prisoner, who originally would have been eligible for parole in October 1965, now, it is agreed, will not become eligible until February 1970.

Regardless of whether the action of the sentencing judge is verbalized as a twenty-year sentence without credit for the five years already served, or as a twenty-five-year sentence with credit, the practical effect of the second judge's sentence is to compel the defendant to serve five years longer to become eligible for parole, than he would have been required to serve had he not asserted his constitutional right to a fair trial.

Patton applied in August 1965 to the District Court for a writ of habeas corpus, contending that a harsher sentence following a second conviction for the same offense, after the initial conviction has been vacated on constitutional grounds, is a denial of due process of law; is inconsistent with the prohibition against double jeopardy; and is a denial of equal protection of the law. The District Court held Patton's sentence unconstitutional on the ground that the increased punishment violated the due process and equal protection clauses of the Fourteenth Amendment. Patton v. North Carolina, 256 F.Supp. 225 (W.D.N.C.1966).

I. Exhaustion of State Remedies

The State has misconceived the import of Patton's arguments. it interprets his contention to be that the second trial judge, in imposing a more severe sentence, was motivated by prejudice because of the defendant's successful attack on the initial conviction. The State's position on this appeal is that such an allegation has never been presented to the state courts, and it reasons that Patton having failed to exhaust available state remedies or to show that circumstances existed rendering the state process ineffective to protect his rights, the District Court lacked jurisdiction under 28 U.S.C. § 2254. The District Judge carefully reviewed the relevant North Carolina cases, however, and concluded that the effect of the opinions of the state supreme court is to hold that a defendant is not entitled to credit for time served and may receive an increased sentence (unless the subsequent sentence plus the time already served under the invalid first sentence should exceed the statutory maximum). 2 We share the District Court's view that since further resort

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to the North Carolina courts would be futile, it is not required. 3

II. Due Process

The simplistic rationale traditionally offered for denying credit and permitting a harsher sentence at a second trial is that the prisoner, by successfully attacking his initial conviction, has 'voided' or 'wiped out' all consequences of that conviction-- including the sentence imposed by the first judge and any time served under that sentence. 4 In State v. White, 262 N.C. 52, 136 S.E.2d 205 (1964), the North Carolina Supreme Court stated that a defendant

'is not entitled as a matter of law to credit against the second sentence for time served under the original sentence. The rationale of the decisions seems to be that the defendant in seeking and obtaining a new trial must be deemed to have consented to a wiping out of all the consequences of the first trial.' 5

262 N.C. at 56, 136 S.E.2d at 208

The principle of fair dealing which impels judges in passing sentence to take into account the time a defendant was deprived of his liberty while awaiting trial, Dunn v. United States, 376 F.2d 191 (4th Cir. Feb. 24, 1967), insists even more inexorably that he shall not be finessed out of credit for time he was forced to serve under an invalid sentence. The trial and conviction may be voided

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on appeal, but the time illegally exacted by the unconstitutional sentence is an irreversible fact. It is grossly unfair for society to take five years of a man's life and then say, we now acknowledge that this should not have happened, but we will set everything right by refusing to recognize that it did happen. This is an unworthy pretense. Courts should not be astute to fashion legal fictions to attain unjust ends. 6

The risk of a denial of credit or the risk of a greater sentence, or both, on retrial may prevent defendants who have been unconstitutionally convicted from attempting to seek redress. 7 For this reason, the District Court declared that predicating Patton's constitutional right to petition for a fair trial on the fiction that he has consented to a possibly harsher punishment, offends the due process clause of the Fourteenth Amendment. [7a] It would confront the prisoner with the unhappy choice of either abandoning his constitutional right to a fair trial and serving out his prison term under the invalid sentence, or exercising that right under the hazard, in the event of a second conviction, of being treated as though the years of imprisonment already served had never occurred. 8

This is like the 'grisly choice' discountenanced in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). 'The law should not, and in our judgment does not, place the defendant in such an incredible dilemma.'

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Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). [9 North Carolina deprives the accused of the constitutional right to a fair trial, then dares him to assert his right by threatening him with the risk of a longer sentence. It may not exact this price. Enjoyment of a benefit or protection provided by law cannot be conditioned upon the 'waiver' of a constitutional right. 10

Indeed, this circuit has already held it impermissible to force upon an accused the risk of more severe punishment as a condition for securing a constitutional right. In United States v. Walker, 346 F.2d 428 (4th Cir. 1965), the defendant was initially sentenced in his absence. When he successfully attacked the sentence on this ground, he was resentenced to a longer term. Judge Bryan, speaking for the court criticized the trial judge's disregard of the original sentence:

'The import of the (District) Court's ruling was to condition his Constitutional right to seek correction upon the risk of another sentence, then unforeseeable in nature and extent. Thus, though not so intending, the Court potentially penalized him for asserting the privilege. This the law forbids * * *. (Citing Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 184 (1957).)

It (the second, harsher sentence) was, in sum, the product of a procedure which could prove either deterring or punitive of an insistence on Constitutional privileges.' 11

346 F.2d at 430-431.

The District Court held that Patton's punishment could not be increased unless evidence justifying a harsher sentence appeared in the record, and that the State must bear the burden of showing that such facts were introduced at the second trial, since 'where the record disclosed no colorable reason for harsher punishment,' the effect would be to inhibit the constitutional right to seek a

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new trial. 12 256 F.Supp. at 236. We agree with the District Court that it is an impossible task for the prisoner to prove improper motivation of the trial judge. It is equally impossible, and most distasteful, for federal courts to pry into the sentencing judge's motivation to ascertain whether vindictiveness played a part.

We do not think, however, that a defendant's rights are adequately protected even if a second sentencing judge is restricted to increasing sentence only on the basis of new evidence. We are in accord with the First Circuit, which has recently held that a sentence may not be increased following a successful appeal, even where additional testimony has been introduced at the second trial.

'The danger that the government may succeed in obtaining more damaging evidence on a retrial is just as real as...

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