Frazier v. State

• Decision Date: 16 April 1985
• Docket Number: No. 83-1212,83-1212
• Citation: 10 Fla. L. Weekly 997,467 So.2d 447
• Parties: 10 Fla. L. Weekly 997 Ronald FRAZIER a/k/a Ronnie Fraley, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 447

467 So.2d 447

10 Fla. L. Weekly 997

Ronald FRAZIER a/k/a Ronnie Fraley, Appellant, v. The STATE of Florida, Appellee.

No. 83-1212.

District Court of Appeal of Florida Third District.

April 16, 1985.

Bennett H. Brummer, Public Defender and McMaster, Forman & Miller and Daniel H. Forman, Sp. Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and BARKDULL and HUBBART, JJ.

SCHWARTZ, Chief Judge.

In Fraley v. State, 426 So.2d 983 (Fla. 3d DCA 1983), we held that this appellant's ¹ twenty five year sentence--twenty years for robbery and a consecutive five years for probation violation--imposed after the trial court had tendered, and Frazier had declined, a six year plea offer before the jury retired, was "presumptively unlawful," 426 So.2d at 986, under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Accordingly, the case was remanded "with instructions to resentence the defendant in accordance with the plea offer or to make record findings supportive of the more severe sentence," 426 So.2d at 986, "so as to assure the absence of vindictiveness," 426 So.2d at 985, condemned by Pearce. Pursuant to our mandate, the trial judge ² promptly vacated the sentences, and simultaneously stated the circumstances and underlying reasons for his having made the offer and for the eventual sentences. Subsequently, after the court received a pre-sentence investigation, the defendant was resentenced to concurrent, rather than consecutive as before, sentences of twenty and five years. Frazier again appeals but, on the ground that the presumption of unconstitutional vindictiveness has been dissipated, we affirm.

The trial judge related that he had retendered the previously made six year plea offer at the end of the trial at the request of appointed defense counsel who himself made the

recommendation that he did accept it because under the circumstances, if he were convicted, there were possibilities of harsher sentences.

More important, the trial judge stated with characteristic forthrightness and clarity that he made the offer, which he said was repeated even after the jury had retired, and which avowedly represented less than a fair sentence to Frazier for the crime charged, solely in order to avoid the likely possibility that the defendant, whom the judge thought guilty, would be acquitted by the jury:

The reason I made the offer of five and one was because I had suppressed the majority of the evidence and I was fearful, and I think this is my real reasoning I had offered it: Because I thought the jury was going to walk Mr. Fraley on the case and I said, 'In order to protect the people and the defendant and be fair, I will make the offer of six years of which the victim had no objection to, so I did it, and that's why I did it, because I wanted him to plead five years and one which would be six years.'

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The reason for the plea offer was because I thought the defendant was going to walk and I was concerned because of the information I had before me that I felt he was guilty and I was trying to protect the people's interest and the defendant's interest by making a fair plea offer which all sides agreed it was fair.

After Frazier rejected the plea, thus opting to take his chances with the jury, and then lost the bet which is inherent in that course of action, the actual sentence simply represented the court's assessment of an appropriate penalty for the crime and defendant involved, fully commensurate with its prior sentences in similar cases.

After the jury came back, the jury had concluded what I felt all along: That he was guilty beyond and to the exclusion of every reasonable doubt and six jurors of the community had agreed with what I felt was the interpretation of the evidence.

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Now, as far as this twenty year sentence is concerned, that was the same sentence I imposed in every robbery conviction I had of a similar nature.

Compare Gardner versus State where I imposed the same sentence.

There was no vindictive nature about it.

If I was going to be vindictive, I never would have offered it to him again after the jury went out.

I don't know any other Judge that would have done that as a favor to the defendant and the defense lawyers even though I had spent three days of judicial labor trying a case. ³

It affirmatively appears, therefore, that the twenty year sentence was not imposed out of a sense of imputed judicial "vindictiveness" ⁴ against the defendant for inconveniencing the court by asserting his constitutional right to a jury determination of his guilt. But that is the evil the Pearce doctrine seeks to obviate. See Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973); Colten v. Commonwealth of Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). In fact, as the trial judge pointed out, no further inconvenience could have occurred, since the trial was entirely over when the last plea offer was made and rejected. Rather, the sentence was imposed as a rightful and reasonable one--and there is no contention to the contrary--for the crime of which the jury had found Frazier guilty. The fact that the court was given the opportunity to do so only because the plea offer had become vitiated by virtue solely of the defendant's own decision to turn it down makes no constitutional difference.

We think that this point has been made clear by the decisions of the Supreme Court of the United States interpreting Pearce, the reach of which is essentially the only issue in this case. The Pearce rule evolved because the imposition of a harsher sentence upon a defendant after a new trial ordered on appeal poses a realistic likelihood of vindictiveness. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). See also Thigpen v. Roberts, 468 U.S. 27, 104 S.Ct. 2916, 82 L.Ed.2d 23 (1984). In both Pearce, where the defendant was subjected to a more severe sentence after an appeal and retrial, and Perry, where the defendant, a convicted misdemeanant, was reindicted by the prosecutor on felony charges after he had invoked an appellate remedy, the presumption of vindictiveness was justified because of the "institutional bias inherent in the judicial system against retrial of issues that have already been decided," United States v. Goodwin, 457 U.S. 368, 376, 102 S.Ct. 2485, 2490, 73 L.Ed.2d 74 (1982), which make it likely that "the state might be retaliating against the accused for lawfully attacking his conviction." Bordenkircher v. Hayes, 434 U.S. at 363, 98 S.Ct. at 668. In Bordenkircher, however, the court distinguished Pearce, characterizing the imposition of that penalty as unilateral, in contrast to the "give-and-take" of a plea bargaining situation like this where there is no such element of punishment or retaliation so long as the accused is free to accept or reject the offer. See United States v. Mays, 738 F.2d 1188 (11th Cir.1984); Commonwealth v. Damiano, 14 Mass.App. 615, 441 N.E.2d 1046, 1052 n. 14 (1982). Bordenkircher concerned a prosecutor's ⁵ decision to reindict a defendant as a habitual offender after he refused to plead guilty to misdemeanor charges. The court held that the increased sentence was a legitimate use of leverage in the plea bargaining process. It stated:

[w]hile confronting a defendant with the risk of more severe punishment clearly may have a 'discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable'--and permissible--'attribute of any legitimate system which tolerates and encourages the negotiation of pleas.' Chaffin v. Stynchcombe, 412 U.S. at 31, 93 S.Ct. [1977] at 1985.

434 U.S. at 364, 98 S.Ct. at 668.

Many previous cases have likewise indicated or held that Pearce principles are inapplicable to the consequences of plea bargaining even when, like this case, the court participates, and even when, unlike this case, the potentiality for impermissible retribution is much greater because the offer occurs prior to the trial proceedings made necessary by the defendant's rejection. See Frank v. Blackburn, 646 F.2d 873 (5th Cir.1980), cert. denied, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 123 (1981); People v. Szeto, 29 Cal.3d 20, 171 Cal.Rptr. 652, 623 P.2d 213 (1981); People v. Davis, 93 Ill.App.3d 187, 48 Ill.Dec. 657, 416 N.E.2d 1179 (1981); People v. Beacham, 87 Ill.App.3d 457, 43 Ill.Dec. 87, 410 N.E.2d 87 (1980); People v. Dennis, 28 Ill.App.3d 74, 328 N.E.2d 135 (1975); State v. Boone, 33 N.C.App. 378, 235 S.E.2d 74 (1977), aff'd, 293 N.C. 702, 239 S.E.2d 459 (1977).

In sum, the defendant cannot be heard to complain if the fact that his sentence is greater than the plea offer is the result, not of the assertion of his rights, but of his rejection of the proposed agreement and of the fair conclusion as to his punishment which the court has the consequent ability to render. See United States v. Lippert, 740 F.2d 457 (6th Cir.1984); Frank v. Blackburn, 646 F.2d at 885; Martin v. Blackburn, 606 F.2d 92 (5th Cir.1979), cert. denied, 446 U.S. 911, 100 S.Ct. 1841, 64 L.Ed.2d 265 (1980); United States v. Cunningham, 529 F.2d 884, 888 (6th Cir.1976). Indeed, were the rule otherwise, and as defense counsel in this case explicitly recognized, all plea negotiations would necessarily be futile, since a defendant like Frazier could reject any offer with riskless impunity in the certain knowledge that, even if the jury found against him, the offer represents the outer limits of his possible exposure. But just as the Constitution does not forbid plea bargaining, it cannot be deemed to require--as it would if Frazier's position were accepted--the destruction of the process through the elimination of the shared understanding of its essential elements which forms its...