Kelly v. Neubert, 89-5793

Decision Date26 February 1990
Docket NumberNo. 89-5793,89-5793
Citation898 F.2d 15
PartiesRonald KELLY, Appellant, v. E. Calvin NEUBERT, Administrator, and W. Carey Edwards, the Attorney General of the State of New Jersey, Appellees. . Submitted Under Third Circuit Rule 12(6)
CourtU.S. Court of Appeals — Third Circuit

Tonianne Bongiovanni, Asst. Federal Public Defender, Newark, N.J., for appellant.

Catherine A. Foddai, Div. of Criminal Justice, Appellate Section, Trenton, N.J., for appellees.

Before HIGGINBOTHAM, Chief Judge, HUTCHINSON and COWEN, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

The issue in this case is whether North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), precludes the sentence the state trial court imposed on the appellant, Ronald Kelly (Kelly), on remand after the state appellate court vacated his conviction on two counts and vacated his sentence on several other counts. Pearce creates a prophylactic rule requiring the trial court to show affirmatively on the record non-retaliatory reasons for increasing a sentence after a successful appeal of the original sentence. Here, the trial court on resentencing reduced Kelly's aggregate sentence but increased some of the sentences it had earlier imposed on individual counts. The district court denied Kelly's petition for a writ of habeas corpus reasoning Pearce did not apply because there was no evidence of vindictiveness by the sentencing court.

Kelly does not claim any of the sentences are inappropriate, nor does he claim a retaliatory sentence was imposed in violation of the prohibition against double jeopardy. See United States v. Busic, 639 F.2d 940 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981). 1 He simply says that the trial court violated his Fourteenth Amendment right to due process when, on remand, it increased some of the sentences on individual counts without articulating legitimate reasons for doing so. We hold, in common with authority in other circuits, that a restructuring of a sentence does not trigger the Pearce rule when the aggregate sentence is less than that originally imposed and there is no evidence of vindictiveness on the part of the sentencing court. Therefore, we will affirm the district court's order dismissing Kelly's habeas corpus petition.

The trial judge in the New Jersey Superior Court originally sentenced Kelly to an aggregate of seventeen years, with a parole ineligibility of nine years. On resentencing, that court sentenced Kelly to an aggregate sentence of ten years with a parole ineligibility of five years. However, the trial court increased the sentences that it had originally imposed on several individual counts. Kelly appealed to the Appellate Division of the New Jersey Superior Court. The Appellate Division affirmed, and the Supreme Court of New Jersey denied certification. Kelly then filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. The district court dismissed the petition but certified there was probable cause for appeal.

The district court had subject matter jurisdiction pursuant to 28 U.S.C.A. Sec. 2254 (West 1977). This Court has appellate jurisdiction under 28 U.S.C.A. Sec. 1291 (West Supp.1989). Our scope of review of this legal issue is plenary. See Carter v. Rafferty, 826 F.2d 1299 (3d Cir.1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 711, 98 L.Ed.2d 661 (1988).

Other circuits have given differing rationales for their refusal to apply Pearce in this kind of situation. In United States v. Shue, 825 F.2d 1111, 1115-16 (7th Cir.) (Shue II ), cert. denied, 484 U.S. 956, 108 S.Ct. 351, 98 L.Ed.2d 376 (1987), the defendant was convicted of conspiracy (Count I), bank robbery (Counts II and IV) and attempted bank robbery (Count III). He was sentenced to five years imprisonment on Count I, twenty-five years consecutive on Count II and two concurrent terms of five years probation on Counts III and IV. The probationary terms were made consecutive to the sentences on Counts I and II. Shue's aggregate term of imprisonment was thirty years. On Shue's initial appeal, the Seventh Circuit reversed the convictions on Counts I, II and III but affirmed on Count IV. United States v. Shue, 766 F.2d 1122, 1136 (7th Cir.1985). On remand, the district court granted the government's motion to resentence Shue on Count IV (the affirmed count) and resentenced him to a twenty year term on that count. The district court held that the resentencing did not violate the double jeopardy clause of the Fifth Amendment.

The Seventh Circuit affirmed the resentencing. That court held that the district court correctly concluded that "when an appellate court affirms some counts and reverses others, it is open to the district court to resentence in order to effectuate the original sentencing intent." Shue II, 825 F.2d at 1113. In Shue II, the court recognized that the "practical realities of present sentencing practices" require the approach taken by the district court and stating:

When a defendant is convicted of more than one count of a multicount indictment, the district court is likely to fashion a sentencing package in which sentences on individual counts are interdependent. When, on appeal, one or more counts of a multicount conviction are reversed and one or more counts are affirmed, the result is an "unbundled" sentencing package. Because the sentences are interdependent, the reversal of convictions underlying some, but not all, of the sentences renders the sentencing package ineffective in carrying out the district court's sentencing intent as to any one of the sentences on the affirmed convictions.

Id. at 1114 (citations omitted).

The court went on to hold that Pearce did not apply to the facts before it because "the new sentence does comply with the original sentencing intent of the district court." 2 Id. at 1116. The court noted that the district court gave the following reasons why the new sentence complied with the original sentencing intent: "Defendant Shue was originally sentenced on Count IV in the context of a lengthy prison sentence in the companion convictions which have since been reversed. In the absence of the other convictions, Shue, a master and recidivist criminal as shown at trial and as documented in the presentence reports, would not have been sentenced to probation." Id.

We recognize that in this case the state...

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