Hill v. State

• Citation: 499 N.E.2d 1103
• Decision Date: 17 November 1986
• Docket Number: No. 1084S399,1084S399
• Parties: Michael D. HILL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Supreme Court of Indiana

Page 1103

499 N.E.2d 1103

Michael D. HILL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1084S399.

Supreme Court of Indiana.

Nov. 17, 1986.

Jack E. Roebel, Allen County Deputy Public Defender, Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., Michael B. Murphy, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

Defendant Michael Hill appeals from the sentence imposed following his conviction of burglary, a class A felony. ¹ He was sentenced to (50) years imprisonment, the maximum term for a class A felony. ² This direct appeal raises the following issues:

1. constitutionality of the sentence as punishment for defendant's exercise of his right to trial by jury;

2. reasonableness of sentence; and,

3. absence of court's sentencing statement as order book entry.

The evidence at trial revealed that Leo, Indiana, residents Richard and Joyce Hetrick returned to their home one afternoon and observed an unfamiliar automobile parked in their driveway. They determined the front door to their house had been pried open, and observed that items inside the house were in disarray. Mrs. Hetrick called police as Mr. Hetrick took a rifle and apprehended defendant and one Benjamin Spencer (Spencer) upstairs. Hetrick observed a bulge in Spencer's shirt, ordered him to raise the shirt and discovered Spencer was carrying Hetrick's .45 caliber pistol. He made Spencer lay the pistol down, then ordered the two to follow him as he backed down the stairs. As they were exiting through the front door Spencer and defendant attacked. They beat and kicked Hetrick as they tried to wrestle the rifle from him. Hetrick's hand was cut by the rifle hammer when he fired it into the air to empty the chamber during the struggle. Mrs. Hetrick joined the affray and received bite wounds. Eventually the intruders subdued Mr. Hetrick, grabbed the rifle, and drove off, but police intercepted them minutes later. Mrs. Hetrick identified them and items in the automobile's trunk as having been taken from the Hetrick's home. Mr. and Mrs. Hetrick required medical treatment as a result of the struggle.

Defendant's jury trial began and concluded on April 11, 1984. Five days later, on April 16, 1984, Spencer signed a plea agreement which would result in an executed twenty-year sentence for class A burglary. On May 14, 1984, the defendant was sentenced by the Honorable Thomas L. Ryan, Judge, Allen Circuit Court, to fifty years imprisonment, the maximum term for a class A felony. The following day, May 15, 1984, the Honorable Alfred W. Moellering, Judge, Allen Superior Court, sentenced Spencer, in accordance with the plea agreement, to twenty years, thus granting him a leniency of ten years less than the presumptive sentence for class A burglary. ³

ISSUE I

Defendant claims the disparity between the sentences imposed on him and Spencer demonstrates his sentence was based, at Pearce addressed, among other issues, the imposition of a substantially heavier sentence after retrial because the defendant obtained reversal of the initial determination on appeal or through post conviction procedures. Such practices were held to improperly deter convicted defendants from asserting their rights to appeal, and as such violated due process. A similar rationale was applied in Thigpen v. Roberts (1984), 468 U.S. 27, 104 S.Ct. 2916, 82 L.Ed.2d 23, and Blackledge v. Perry (1974), 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628, asserting that a rebuttable presumption of prosecutorial vindictiveness, and thus a violation of due process, would arise where a defendant has been convicted of misdemeanors in a lower trial court then exercises the right to appeal for a trial de novo, only to have the prosecutor charge greater crimes.

least in part, on his decision to proceed to jury trial rather than plead guilty, thereby punishing him for asserting Constitutional rights. Defendant relies on North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. Defendant's claim certainly raises questions concerning the sometimes difficult question of whether disparate sentences to accomplices demonstrate vindictiveness against a defendant who proceeds to trial as opposed to permissible leniency for a defendant who enters a plea bargain.

In United States v. Jackson (1968), 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, the death sentence provision of the Federal Kidnapping Act was invalidated because death sentences could be imposed only following a jury trial and upon recommendation of the jury, whereas the maximum sentence for defendants who pled guilty or were found guilty after a bench trial was life imprisonment. The death sentence provision was held to be an "unnecessary" encouragement to plead guilty or waive a jury trial.

Subsequently, however, in Bordenkircher v. Hayes (1978), 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604, no Constitutional infirmity was found where the prosecutor filed a habitual offender charge after the defendant refused a plea bargain. It was there recognized that the state had "no more than openly presented the defendant with the unpleasant alternatives of foregoing trial or facing charges on which he was plainly subject to prosecution." 434 U.S. at 365, 98 S.Ct. at 669, 54 L.Ed.2d at 612. The decision stated:

[B]y tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forego his right to plead no guilty.

434 U.S. at 364, 98 S.Ct. at 668, 54 L.Ed.2d at 611. Later the same year, Corbitt v. New Jersey (1978), 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466, upheld a statutory scheme providing defendants who pled non vult or nolo contendre to an indictment for first degree murder could be sentences to life imprisonment or 30 years imprisonment, the sentence for second degree murder, but providing a mandatory life sentence upon a conviction for first degree murder following a not guilty plea. The Court concluded:

There is no doubt that those homicide defendants who are willing to plead non vult may be treated more leniently than those who go to trial, but withholding the possibility of leniency from the latter cannot be equated with impermissible punishment as long as our cases sustaining plea bargaining remain undisturbed. Those cases, as we have said, unequivocally recognize the constitutional propriety of extending leniency for a plea of not guilty and not of extending leniency to those who have not demonstrated those attributes on which leniency is based.

439 U.S. at 223-24, 99 S.Ct. at 500, 58 L.Ed.2d at 477.

More recently, in Texas v. McCullough (1986), --- U.S. ----, 106 S.Ct. 976, 89 L.Ed.2d 104, the Due Process Clause was held to be not violated when a state court defendant received a greater sentence on retrial, following the grant of defendant's Similarly, Indiana case law has recognized the same principles. The importance of protecting the constitutional right to jury trial was emphasized in Judge Robertson's opinion in Walker v. State (1983), 454 N.E.2d 425, 429, trans. denied:

motion for new trial on the basis of prosecutorial misconduct. The court in McCullough refused to apply Pearce, noting that the defendant, exercising his rights under state law, was sentenced by the jury following the first trial, and by the judge following the second trial, thus precluding any "realistic motive for vindictive sentencing."

It is well settled that to punish a person for exercising a constitutional right is "a due process violation of the most basic sort." ... Moreover, it is constitutionally impermissible for a trial court to impose a more severe sentence because the defendant has chosen to stand trial rather than plead guilty.... It is also clear that under appropriate circumstances, a defendant may receive a more severe sentence because the trial may reveal more adverse information about him than was previously known. However, a court may not impose a sentence that conflicts with a defendant's exercise of his constitutional right to a jury trial. (Citations omitted.)

The propriety of using leniency to encourage guilty pleas, however, has also been upheld. In Gajdos v. State (1984), Ind., 462 N.E.2d 1017, 1025, we stated:

We have previously held that the State has a legitimate interest in encouraging the entry of guilty pleas. Williams v. State (1982), Ind., 430 N.E.2d 759. A defendant who enters a guilty plea "has extended a substantial benefit to the state and deserves to have a substantial benefit extended to him in return." Id., 430 N.E.2d at 764. In Morgan v. State, (1981) Ind., 419 N.E.2d 964, we stated "that when the defendant proceeds to trial and his accomplice pleads guilty, the sentences need not be identical." Id., 419 N.E.2d at 969.

Therefore, while leniency in sentencing is constitutionally permissible as an incentive for an otherwise proper plea of guilty, a more severe sentence may not be imposed upon a defendant because he foregoes the opportunity to plead guilty and exercises his right to trial by jury. Whether the severity of a particular sentence was improperly influenced by a defendant's jury trial election requires an individualized consideration. In the present case, we are not directed to, nor do we find, anything in the record indicating that the defendant's decision to proceed with jury trial affected the severity of the sentence ultimately imposed. We do not find any indication that the trial judge was involved in the defendant's plea negotiations, nor did the judge encourage the defendant to plead guilty, or threaten him with a more severe sentence if convicted following jury trial. The record of the sentencing hearing likewise includes nothing from which we could infer that the trial judge was punishing the defendant for going to trial. Rather, the court reviewed the facts of this case again...