Breest v. Helgemoe

• Decision Date: 08 June 1978
• Docket Number: No. 77-1208,77-1208
• Citation: 579 F.2d 95
• Parties: Robert BREEST, Petitioner, Appellant, v. Raymond HELGEMOE, etc., Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 95

579 F.2d 95

Robert BREEST, Petitioner, Appellant, v. Raymond HELGEMOE, etc., Respondent, Appellee.

No. 77-1208.

United States Court of Appeals First Circuit.

June 8, 1978.

Jeanne Baker, Cambridge, Mass., by appointment of the court, with whom Rosenberg, Baker & Fine, Cambridge, Mass., was on brief, for petitioner, appellant.

Peter W. Heed, Asst. Atty. Gen., Concord, N. H., with whom David H. Souter, Atty. Gen., and John C. Boeckeler, Asst. Atty. Gen., Concord, N. H., were on brief, for respondent, appellee.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

Petitioner-appellant, Robert Breest, (hereinafter petitioner), a convicted New Hampshire state prisoner, appeals from an opinion and order of the United States District Court for the District of New Hampshire denying, in substantial part, relief sought on a petition for a writ of habeas corpus. Accused of killing a young woman on February 28, 1971, petitioner was tried by jury and convicted of first degree murder. On March 22, 1973, the day of the jury's verdict, he was sentenced to life imprisonment and immediately commenced to serve his sentence. On April 5, 1973, petitioner was returned before the trial court and his crime was certified as "psycho-sexual in nature" pursuant to the requirements of NH RSA 607:41-b to d (Supp.1972). ¹ The effect of that certification was to fix the minimum sentence which petitioner would have to serve before becoming eligible for parole at forty years minus good time credits. During trial and at both sentencing hearings, petitioner was represented by counsel.

Petitioner appealed to the New Hampshire Supreme Court, raising numerous challenges to his conviction and sentence. Of these, three constitute the claims presented here. First, petitioner claims that the application to him of the psycho-sexual murder provisions impermissibly placed him twice in jeopardy. Second, application of those provisions is assailed as violating the prohibition against ex post facto laws. Third, it is claimed that certain evidence used against petitioner at his trial was obtained unlawfully because the warrant authorizing the search was based upon an affidavit allegedly containing intentional misrepresentations of fact. Finding these challenges to be without merit, the New Hampshire Supreme Court affirmed the conviction and sentence. State v. Breest, 116 N.H. 734, 367 A.2d 1320 (1976).

Petitioner then sought federal habeas corpus relief, raising the same issues previously decided in his state appeal. The district court ruled against petitioner on all of his claims except one. The court held that due process requires the state to afford petitioner an evidentiary hearing on the issue of whether the murder was in fact psycho-sexual in nature, before subjecting him to the harsher parole provisions of the psycho-sexual murder statute. The state does not challenge that ruling on this appeal. ² The district court held, however, that the application of the psycho-sexual murder statute violated neither the double jeopardy nor the ex post facto clauses of the Constitution. As to the Fourth Amendment claim, the court found that the "State has provided (petitioner) an opportunity for full and fair litigation", and therefore federal habeas corpus relief on that issue was precluded by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). We conclude that petitioner's rights have not been violated and therefore affirm.

Challenges to Resentencing

Petitioner challenges his sentence under the proscriptions against both the double jeopardy and ex post facto laws. A brief chronology sets the stage for consideration of these claims. On February 28, 1971, the date of the crime, the penalty for first degree murder in New Hampshire was life imprisonment without the possibility of parole. NH RSA 607:43 (1955); NH RSA 585:4 (1955). ³ On July 1, 1971, NH RSA 607:41-a became effective, providing that persons serving life sentences would be eligible for parole after serving eighteen years. ⁴ On April 4, 1972, petitioner was indicted for first degree murder. Then, on May 14, 1972, new provisions dealing with psycho-sexual murder took effect, altering parole eligibility in certain first degree murder cases. ⁵ NH RSA 607:41-c (Supp.1972) provided that

"Whenever any person is convicted of murder in the first degree, the presiding justice shall certify, at the time of sentencing, whether or not such murder was psycho-sexual in nature."

If the crime was so certified, the person convicted could not become parole eligible until forty years had been served.

On March 22, 1973, while this provision was in effect, ⁶ petitioner was convicted of first degree murder, sentenced to imprisonment "for life", and began to serve his sentence. At this sentencing, the court neglected to make the required certification, and indeed failed to make any reference to NH RSA 607:41-c. ⁷ Five days later, on March 27, 1973, the state filed a motion for resentencing pursuant to the psycho-sexual murder provisions. Petitioner was returned to the court on April 5, 1973 and, over his objection, the court certified the murder as psycho-sexual. As noted, this had the effect of increasing petitioner's minimum term from eighteen to forty years. ⁸

Petitioner's first claim is that the imposition of a more onerous minimum term at the resentencing hearing on April 5, 1973, violated his right not to be twice placed in jeopardy. As a general rule, an increase in sentence after a defendant has begun to serve his punishment contravenes the prohibition against double jeopardy. See, e. g., Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874); United States v. Bynoe, 562 F.2d 126, 128 (1st Cir. 1977). In rejecting petitioner's double jeopardy claim, however, both the district court and the New Hampshire Supreme Court invoked a well recognized exception to that rule. In the leading case of Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947), the trial court, when sentencing a defendant convicted under a statute requiring Both a fine and imprisonment, imposed a prison term only. Five hours after sentence was announced the court realized its mistake, called back the defendant and imposed a fine in addition to the prison term. The Court rejected the contention that the subsequent imposition of the fine to conform the sentence to the statutory requirements constituted double jeopardy. Bozza thus stands for the proposition that "a trial court not only Can alter a statutorily-invalid sentence in a way which might increase its severity, but Must do so when the statute so provides." Thompson v. United States, 495 F.2d 1304, 1306 (1st Cir. 1974) (emphasis in original); United States v. Bishop, 487 F.2d 631, 633 (1st Cir. 1973). See Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). Even after the defendant has commenced to serve his sentence, that power and that obligation continue. United States v. Davis, 183 U.S.App.D.C. 121, 561 F.2d 1014, Cert. denied, 434 U.S. 929, 98 S.Ct. 416, 54 L.Ed.2d 290 (1977); United States v. Stevens, 548 F.2d 1360 (9th Cir.), Cert. denied, 430 U.S. 975, 97 S.Ct. 1666, 52 L.Ed.2d 369 (1977); Llerena v. United States, 508 F.2d 78 (5th Cir. 1975); See United States v. Becker,536 F.2d 471, 472 (1st Cir. 1976); Fed.R.Crim.P. 35.

The sentence imposed on March 22, 1973 of life imprisonment, without any finding as to whether or not the crime was "psycho-sexual in nature", and if it was, without a certification to that effect setting the minimum term at forty years, was a "statutorily invalid sentence". See State v. Breest, 116 N.H. 734, 367 A.2d 1320, 1335 (1976). As such, the sentence would fall within the Bozza exception and the trial court would not violate petitioner's rights under the double jeopardy clause by correcting it.

Petitioner asserts, however, that Bozza is not applicable since a life sentence without a psycho-sexual certification was a theoretically permissible penalty for first degree murder. This being so, he asserts that the general rule against enhancement of a valid sentence should still apply to bar the resentencing here. See, e. g., United States v. Bynoe, supra; United States v. Turner, 518 F.2d 14 (7th Cir. 1975); United States v. Bowens, 514 F.2d 440 (9th Cir. 1975).

While it may be true that petitioner could have been lawfully imprisoned under a life sentence imposed without reference to the psycho-sexual murder statute, and thus implicitly have been subject to the more lenient eighteen year parole term, we believe it clear that the court had a duty to determine whether the crime was psycho-sexual in nature and if it was, to so certify. The court's failure to do so on March 22, 1973 left the sentence incomplete and, in petitioner's case, potentially more lenient than the statute permitted. ⁹ In that circumstance, the sentence while lawful in the sense that petitioner was and could have remained lawfully incarcerated thereunder was still legally invalid in the sense that it was subject to correction. See United States v. Kenyon, 519 F.2d 1229, 1321-32 (9th Cir.), Cert. denied,423 U.S. 935, 96 S.Ct. 293, 46 L.Ed.2d 267 (1975); Cf. Cook v. United States, 171 F.2d 567, 569 (1st Cir. 1948), Cert. denied, 336 U.S. 926, 69 S.Ct. 647, 93 L.Ed. 1088 (1949).

An example of the application of this principle is found in our recent decision in Thompson v. United States, supra. There petitioner had been convicted of federal narcotics offenses in violation of 21 U.S.C. §§ 841(a)(1), 846 (1970), was sentenced to, and began serving, a prison term. Some time thereafter, the Bureau of Prisons notified the court that in sentencing petitioner, it had failed to include a "special parole term", as required by 21 U.S.C. § 841(b)(1)(A) (1970). In response, the court amended petitioner's sentence to include a three year special parole term. On appeal we upheld the...