People v. Jones

• Decision Date: 20 November 1978
• Docket Number: No. 11,11
• Citation: 403 Mich. 527,271 N.W.2d 515
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene JONES, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 515

271 N.W.2d 515

403 Mich. 527

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene JONES, Defendant-Appellant.

No. 11.

Supreme Court of Michigan.

Argued Jan. 5, 1978.

Decided Nov. 20, 1978.

William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, Timothy A. Baughman (P-24381), Asst. Pros. Atty., Detroit, for plaintiff-appellee.

State Appellate Defender Office by Daniel J. Wright, Asst. Defender, Detroit, Nels G. Magnuson, Robert Hill, Research Assts., for defendant-appellant.

COLEMAN, Justice.

The defendant was convicted by a jury in 1971 of armed robbery and rape and was sentenced by the trial judge to serve concurrent terms of 10 to 15 years in prison. The defendant then appealed and the Court of Appeals remanded to the trial court because of a possible constitutional error in the imposition of sentence. People v. Jones, 47 Mich.App. 160, 209 N.W.2d 322 (1973). The original sentencing judge granted a defense motion to strike improper material from the presentence report, disqualified himself from resentencing and the case was assigned to another judge of the same court. The judge to whom the case was assigned granted another defense motion to strike improper material, also disqualified himself and the case was assigned to a third judge of the same court. The third judge assigned to the case knew its procedural history but did not know the length of the original sentence. ¹ He sentenced the defendant on the basis of the expurgated presentence report to a substantially longer term in prison, 20 to 40 years. Defense counsel then brought to the judge's attention the trial judge's shorter sentence and argued that the sentence could not be increased unless some subsequent conduct warranted such action. The resentencing judge was not persuaded nor did he point to any such subsequent conduct. The defendant appealed and the Court of Appeals affirmed. 68 Mich.App. 660, 244 N.W.2d 6 (1976).

Three questions have been presented to this Court. Finding one issue dispositive of the case, we will confine our opinion to the following question Do the prohibitions of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), apply to the facts of this case?

We hold in the affirmative.

I

First, it is undisputed that the judge who imposed the 20 to 40 years sentence did not know the length of the original trial judge's sentence, although he did know that he was resentencing after remand by the Court of Appeals, several successful defense motions to strike and several disqualifications of his brethren on the bench. We impute to the experienced and well-respected judge no "vindictiveness' or intention to retaliate for a successful appeal. We make no judgment as to which was the more appropriate sentence.

The Court of Appeals found that because resentencing was by a judge other than the one who first sentenced defendant, although from the same bench, and because he did not know the length of the first sentence and there was no indication of retaliatory motives, the Pearce limitations did not apply.

In North Carolina v. Pearce, the United States Supreme Court was faced with the question of whether the Federal constitution imposed any limitations upon the general power of a judge to impose, upon reconviction, a longer prison sentence than the defendant received after his first trial for the same crime. The Court answered this question, in part, as follows:

"Due process of law, then, 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 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."

The Court then formulated the following rule:

"(W)henever 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."

The prosecutor argues that Moon v. Maryland, 398 U.S. 319, 90 S.Ct. 1730, 26 L.Ed.2d 262 (1970), narrows the application of Pearce. We do not agree. In that case, the Court dismissed a writ of certiorari that had previously been granted to consider the question of whether North Carolina v. Pearce, supra, would be applied retroactively. In a brief per curiam opinion, the Court gave two reasons for dismissal. The first was:

"The facts that have emerged since the grant of certiorari impel us to dismiss the writ as improvidently granted. As an appendix to its brief, the respondent has filed an affidavit of the judge who presided at the second trial, setting out in detail the reasons he imposed the (longer) sentence. Those reasons clearly include 'objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding'."

The per curiam then noted a "dispositive development" petitioner was not claiming violation of the due process standard of Pearce. The Court does not decide what is not before it.

The Court of Appeals, however, did not rely in any part upon Moon. Instead, it relied most heavily upon Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), in which the Court was faced with the question of whether Pearce's prophylactic rule was applicable to Kentucky's two tiered system for adjudicating certain crimes. Under that system, a defendant charged with a misdemeanor could first elect to be tried in an inferior court and, if dissatisfied with the outcome, then could elect to have a trial De novo in a court of general jurisdiction. Defendant Colten had elected to have a trial De novo and, after being convicted again, received a more severe penalty than he had received after his conviction in the inferior court. The Court first explained the holding of Pearce :

"Positing that a more severe penalty after reconviction would violate due process of law if imposed as purposeful punishment for having successfully appealed, the Court concluded that such untoward sentences occurred with sufficient frequency to warrant the imposition of a prophylactic rule to ensure 'that vindictiveness against a defendant for having successfully attacked his first conviction * * * (would) play no part in the sentence he receives after a new trial * * * ' and to ensure that the apprehension of such vindictiveness does not 'deter a defendant's exercise of the right to appeal or collaterally attack his first conviction * * *'."

The Court then went on to hold that Pearce's rule was not applicable to Colten's situation, stating:

"Our view of the Kentucky two-tier system * * * does not lead us to believe * * * that the hazard of being penalized for seeking a new trial, which underlay the holding of Pearce, also inheres in the De novo trial arrangement. Nor are we convinced that defendants convicted in Kentucky's inferior courts would be deterred from seeking a second trial out of fear of judicial vindictiveness."

The Court considered several factors in distinguishing Colten from Pearce :

"We note first the obvious: that the court which conducted Colten's trial and imposed the final sentence was not the court with those work Colten was sufficiently dissatisfied to seek a different result on appeal; and it is not the court that is asked to do over what it thought it had already done correctly. Nor is the De novo court even asked to find error in another court's work.

"The trial De novo represents a completely fresh determination of guilt or innocence."

The facts in the case at bar are essentially the opposite from the Colten facts. Here, the court which resentenced the defendant was the same court which had originally sentenced him. It was also the court which the defendant claimed had sentenced him improperly the first time around. It was doing over again that which was initially thought to be correct. The situation did not amount to a "fresh" start by a completely different court as in Colten.

In People v. Payne, 386 Mich. 84, 191 N.W.2d 375 (1971), this Court applied Pearce retroactively to a case in which the defendant had pled guilty and was sentenced before one judge, appealed and won the right to a new trial and, after reconviction, was sentenced to a longer term in prison by a different judge of the same court who knew the length of the original sentence.

In Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), the Court was asked to extend the Pearce rule to jury sentencing. The defendant had been convicted and sentenced by one jury, had appealed and won a new trial and had been convicted and sentenced by another jury to a longer term in prison. The Court first explained the rationale behind Pearce :

"Under our constitutional system it would be impermissible for the sentencing authority to mete out higher sentences on retrial as punishment for those who successfully exercised their right to appeal, or to attack collaterally their conviction. Those actually subjected to harsher resentencing as a consequence of such motivation would be most directly injured, but the wrong would extend as well to those who elect not to exercise their rights of appeal because of a legitimate fear of retaliation."

The Court then went on to hold that the Pearce rule should not be extended to jury sentencing because "(t)he potential for * * * abuse of the sentencing process by the jury is * * * De minimis " and because "there is no * * * real threat of vindictiveness".

The Court relied on several factors in reaching this decision:

"The first prerequisite for the imposition of a...