Pendergrass v. Neil, Civ. No. 6043.

• Decision Date: 01 April 1971
• Docket Number: Civ. No. 6043.
• Citation: 338 F. Supp. 1198
• Parties: Martin V. PENDERGRASS v. W. S. NEIL, Warden, Tennessee State Penitentiary.
• Court: U.S. District Court — Middle District of Tennessee

338 F. Supp. 1198

Martin V. PENDERGRASS v. W. S. NEIL, Warden, Tennessee State Penitentiary.

Civ. No. 6043.

United States District Court, M. D. Tennessee, Nashville Division.

April 1, 1971.

John W. Wagster, Nashville, Tenn., for petitioner.

David Pack, Atty. Gen., and R. Jackson Rose, Asst. Atty. Gen., State of Tenn., Nashville, Tenn., for respondent.

ORDER

FRANK GRAY, Jr., Chief Judge.

Petitioner is presently confined in the Tennessee State Penitentiary at Nashville, Tennessee. There he is serving a one-year sentence, which was imposed by the Criminal Court of Hickman County, Tennessee, following his 1968 conviction of manslaughter. It is his contention that his present incarceration is illegal, and, in consequence, he has filed a petition for the writ of habeas corpus. The merits of his petition are herein under consideration.

Prior to the 1968 conviction referred to above, petitioner was tried in the same court on the same charge. This prior proceeding also culminated in a verdict of guilty, but a sentence of eleven months and twenty-nine days was imposed. Petitioner's motion for a new trial was denied by the trial judge, and he consequently took an appeal to the Court of Criminal Appeals of Tennessee. For reasons which do not appear in the record presently before this court, the Court of Criminal Appeals of Tennessee upheld petitioner's appeal, voided his conviction, and ordered that he be retried. It was upon petitioner's conviction in the ordered new trial that his present sentence of one year was imposed, and it is, of course, the imposition of a longer sentence the second time around — albeit the second sentence is longer than the first by the span of only one day — of which petitioner presently complains.

In his pro se petition, Mr. Pendergrass contends that if a defendant is convicted and sentenced in a state criminal proceeding, but prosecutes a successful appeal therefrom, is tried again, is convicted again, and is again sentenced, then such a defendant has an absolute right not to have a longer sentence imposed upon him as a result of his second conviction than he would have had, had his original sentence been allowed to stand. He asserts that ". . . this right have sic become so fundamental that it needs no . . . supporting argument." Quite clearly such an assertion is an incorrect statement of the law.

In the case of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court of the United States held explicitly that neither the double jeopardy clause of the Fifth Amendment nor the equal protection clause of the Fourteenth Amendment prohibits the imposition of a longer sentence upon retrial. Nevertheless, Pearce also held that

"due process of law . . . requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge." Pearce, supra, at 725, 89 S.Ct. at 2080 (emphasis added).

"In order to assure the absence of such a motivation . . .," Pearce, supra, at 726, 89 S.Ct. at 2081, the Court went on to promulgate a clear, explicit, and unqualified standard which must be complied with whenever a more severe sentence is imposed the second time around:

". . . whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal." Id. (emphasis added).

Respondent vigorously insists that Pearce does not apply in the case of the instant petitioner, because, he contends, that decision speaks only to the sentencing "judge," whereas, in Tennessee, it is the jury, and not the trial judge, which actually passes sentence. This distinction is a substantial one, so respondent's argument runs, because the element of possible vindictiveness is not — and, in fact, cannot be — a factor in resentencing in this state. Britt v. State, 455 S.W.2d 625 (Ct.Crim.App.Tenn.1969), certiorari denied June 15, 1970.

This court is of the opinion that respondent's argument is unsound. It is made clear, both by the explicit language of Pearce and by the obvious policy considerations which constitute its ratio decidendi, that the Pearce decision is concerned with the assuagement of the fear of possible vindictiveness — regardless of whether such fear is in fact warranted by actual resentencing practices in a given jurisdiction. It is obvious that the possibility of incurring a longer sentence on retrial, either as a result of vindictive resentencing practices or merely as the result of happenstance, exerts a chilling effect upon a defendant's inclination to embark upon whatever appellate routes may ostensibly be "open" to him. The existence of such a possibility places an unjustly-convicted defendant in the anomalous and unfair predicament of having to run the risk of a harsher sentence merely to obtain that to which he was constitutionally entitled in the beginning — viz., a fair and error-free trial. It is thus manifest that the broad principles of due process which underlie the Pearce decision apply as forcefully to resentencing by a jury as they do to resentencing by a judge.

Over and above the foregoing considerations, however, the Pearce standard applies to the Tennessee sentencing procedure by force of precedent in this jurisdiction. In the case of Pinkard v. Neil, 311 F.Supp. 711 (M.D. Tenn.1970), Judge Miller — then Chief Judge of this court, now a judge of the Court of Appeals for this Circuit — expressly so held, stating that ". . . it would appear not incompatible with Tennessee practice for the judge to charge the jury, as a matter of law, that any sentence imposed upon a particular defendant could not be greater than that imposed upon him at an earlier trial for the same offense, whatever that term may have been, if no evidence of supervening misconduct were offered at the second trial. . . . Once the Supreme Court has stated that, as a matter of law, a defendant cannot be given an increased sentence upon retrial unless there is affirmative evidence of misconduct subsequent to the first trial, then it becomes the duty of the judge to follow that decision either in imposing sentence himself in states following the federal practice which charges the judge with this responsibility, or in properly charging the jury in states following the Tennessee practice." Pinkard, supra, at 714.

Respondent urges this court to ignore the Pinkard ruling in reaching its decision in the case at bar. He contends, first, that Pinkard was incorrectly decided and that Pearce should not, in fact, be applied to the Tennessee sentencing procedure for the reasons stated in Britt, supra; and he contends, second, that the jury-charging procedure suggested in Pinkard would be impossible of implementation under the present Tennessee rules of procedure. This court finds no merit in either contention and would indeed, as above indicated, have applied Pearce to the Tennessee sentencing procedure, on the basis of broad considerations of due process, even in the absence of the ruling in Pinkard. If, however, this were not so and this court did not agree with the Pinkard result, the fact remains that the Pinkard holding stands as the law in this jurisdiction. This being the case, in the absence of circumstances not present in the instant situation, this court feels it must adhere to the principle of stare decisis and is of the opinion that, should Pinkard be overruled, such action could appropriately be taken only by an appellate court. It follows that Pearce is the standard by which this court must gauge the constitutionality of the instant petitioner's sentence.

Given the fact that Pearce applies to the Tennessee sentencing procedure, it was apparent to this court, upon its initial consideration of petitioner's pro se petition, that, although it was premised upon a misunderstanding of the effect of the Pearce holding, it nonetheless contained allegations which, if true, were sufficient to raise serious questions as to the constitutionality of petitioner's present confinement. Accordingly, by order of this court entered February 4, 1971, it was directed that the writ issue, that counsel be appointed, and that petitioner be brought before this court at an appointed time for a hearing. The aforesaid order specified three questions which were to be considered at such hearing: (1) whether petitioner had, in fact, exhausted his available state remedies as is required by 28 U.S.C. § 2254;¹ (2) whether the record of petitioner's second trial showed justification, within the meaning of the Pearce decision, for the imposition of a longer sentence as a result of that trial; and (3) whether the second sentence of one year was, in actual fact, more severe than petitioner's previous one of eleven months and twenty-nine days.

The hearing was held as ordered, and, in connection therewith, certain stipulations were entered into by the parties. Among these were (a) a stipulation...