People v. Payne

• Decision Date: 25 June 1969
• Docket Number: No. 3,Docket No. 4719,3
• Citation: 170 N.W.2d 523,18 Mich.App. 42
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Leroy PAYNE, Defendant and Appellant
• Court: Court of Appeal of Michigan — District of US

Page 523

170 N.W.2d 523

18 Mich.App. 42

PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Leroy PAYNE, Defendant and Appellant.

Docket No. 4719.

Court of Appeals of Michigan, Division No. 3.

June 25, 1969.

Released for Publication Sept. 26, 1969.

Philip A. Brown, St. Joseph, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Ronald J. Taylor, Pros. Atty., Berrien County, St. Joseph, for plaintiff-Appellee.

Before QUINN, P.J., and HOLBROOK and T. M. BURNS, JJ.

QUINN, Presiding Justice.

December 14, 1962, defendant, represented by counsel, pleaded guilty to a charge of assault with intent to commit murder, C.L.1948, § 750.83 (Stat.Ann.1962 Rev. § 28.278). Thereafter, defendant was sentenced to prison for a term of 19 to 40 years. Judge Hadsell presided at the plea and sentence. Judge Hadsell's term of office expired January 1, 1967 and he was replaced by Judge Byrns. 378 Mich. (v).

Following a remand from the Court of Appeals for that purpose, a hearing was held June 15, 1967 to determine the voluntariness of confessions, admissions and statements against interest made by defendant prior to his plea. As a result of the hearing, the trial court suppressed all confessions, admissions and statements against interest, set aside the plea, vacated sentence and remanded the case for preliminary examination.

At the conclusion of the examination, defendant was bound over for trial. His motion for change of venue was granted, and he was tried before Judge Byrns and a jury in Kent county. August 24, 1967, the jury returned a verdict of guilty as charged. Thereafter defendant was sentenced to prison for a term of 25 to 50 years, with credit for time already served. His appeal raises 5 issues, 4 of which do not merit discussion.

Defendant contends it was reversible error for Judge Byrns to impose a more severe sentence than did Judge Hadsell. In People v. Poole (1967), 7 Mich.App. 237, 151 N.W.2d 365, this Court held such action was not error. In People v. Mulier (1968), 12 Mich.App. 28, 162 N.W.2d 292, this Court held such action was reversible error. The cases are not in conflict, however; factual differences permit each pronouncement to stand without encroaching on the other. In Poole, a different judge imposed the harsher sentence and reason for such action appeared in the record. In Mulier, the same judge imposed the harsher sentence for no reason apparent on the record. The distinction is noted in Mulier at page 33, 162 N.W.2d at page 295:

'To allow the imposition of a harsher sentence after a rehearing, where the offense, the plea, and the sentencing judge are the same as in the prior proceeding and the record is barren of any grounds tending to support the harsher sentence, unduly infringes upon the constitutional right of appeal.'

This case of Payne is stronger than Poole, supra. In Poole, both convictions were by plea. In Payne, the first conviction was by plea and the second was by jury verdict. A trial affords more opportunity to hear all details, to observe and judge a defendant than does a summary plea proceeding, a fact noted by Judge Byrns. The trial judge noted the right of every citizen to seek appellate relief and the fact that obtaining such relief should in no way affect a subsequent sentence. The trial judge then stated that the sentence he was about to impose was not because defendant had appealed but by reason of the nature of the crime and impressions formed of defendant during 3 days of trial. The trial judge noted that the statute under which defendant was convicted authorized a life sentence or any term of years, and except for defendant's past history (poor family background, good school, service and prison records), a life sentence would have been imposed.

On this record, we conclude that we do not have supervisory control over punishment within the provisions of the statute, Poole, supra, and that Mulier, supra, is inapplicable.

Affirmed.

T. M. BURNS, Judge (dissenting).

I concur with my brothers' disposition of all issues raised in this appeal save the question of whether the imposition of a more servere sentence upon retrial, after the defendant gained reversal of his prior conviction on constitutional grounds, is permissible. On this question of a more severe sentence on retrial, I must respectfully dissent.

The majority here relies on an extremely tenuous distinction between the cases of People v. Poole, (1967), 7 Mich.App. 237, 151 N.W.2d 365, and People v. Mulier (1968), 12 Mich.App. 28, 162 N.W.2d 292, based on the fact that here and in Poole, supra, the judge on retrial was different than the judge in the original trial while in Mulier, supra, the same judge presided over both trials. Although this seeming distinction has been noted recently in People v. Parm (1968), 15 Mich.App. 303, 166 N.W.2d 536, it is a distinction without real meaning or substance.

Further, in Poole, supra, the question of infringing upon the constitutional right of appeal was not present. In Poole the defendant Pled quilty and then made a motion for new trial on the ground that he had not been informed of his right to counsel at the arraignment. Even though the defendant had been represented by counsel at the arraignment, the trial judge granted motion for new trial and the defendant pled guilty again. The question of imposing a harsher sentence for exercising the right of appeal as granted by the Constitution of this state was not raised. Const.1963, art. 1, § 20.

The majority mentions justification in the record for increasing the sentence upon retrial present in Poole and here which was not present in Mulier and I suppose in Parm, supra. After a careful review of the record in this case, I fail to find anything that might legitimately be taken into consideration in sentencing which was not known to the judge at the first sentencing hearing in March of 1963. The self-serving declaration of the sentencing judge that he was not imposing a harsher sentence because defendant had appealed and that he was giving the defendant credit for time served does not change the practical realities of the situation.

The effect of increasing the original sentence of 19 to 40 years, to 25 to 50 years with credit for time served when the defendant has already served almost 5 years is, at least, to deny him credit for time served which is impermissible under Moore v. Parole Board (1967), 379 Mich. 624, 154 N.W.2d 437 which reversed 4 Mich.App. 261, 144 N.W.2d 670. C.L.S.1961, § 769.11a (Stat.Ann.1965 Cum.Supp. § 28.1083(1)).

The increased sentence which was imposed upon the defendant here is clearly impermissible under the recent United States Supreme Court case of North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 2089, 23 L.Ed.2d 656, even though the opinion of the Court in that case which was signed by only three justices, would permit a harsher sentence under certain conditions.

Justice Stewart, speaking for himself, Justice Brennan and Chief Justice Warren, said at pp. 725, 726, 89 S.Ct. 2080, 2081, 23 L.Ed.2d 669, 670:

'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 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.

'In order to assure the absence of such a motivation, we have concluded that 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 consitutional legitimacy of the increased sentence may be fully reviewed on appeal.' (Emphasis added.)

There is no such '* * * objective information concerning identifiable conduct on the part of the defendant after the time of the original sentence (,)' in the record on appeal. Lacking this affirmative showing, a more severe sentence cannot be allowed on retrial.

Yet, I would join Justices Douglas and Marshall, and Justice Harlan, who in separate opinions go beyond the holding of the Court, and say that since the Court has made the double jeopardy clause of the Fifth amendment applicable to the states in Benton v. Maryland (1969), 394 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, a harsher sentence may not be imposed upon retrial after a successful appeal. North Carolina v. Pearce, supra, 89 S.Ct. pp. 2085, 2089.*

The majority here, as in North Carolina v. Pearce, Supra, express the view as stated in Poole, supra, 7 Mich.App. p. 242, 151 N.W.2d p.369:

'Defendant knowingly took a risk in seeking a new trial and should not be heard to complain because the new minimum sentence may increase the time he might serve.'

The effect of the majority opinion here is to say to a defendant, whose constitutional rights have been violated at trial, that you may vindicate your rights, but if the appeals court reverses the conviction, you may be given a longer sentence which will cover the time you were illegally in prison even though you are 'given credit for time served.' The majority opinion in this respect, is declaring their adherence to the 'total waiver' theory of double jeopardy expressed in Stroud v. United States (1919), 251 U.S. 15, 18, 40 S.Ct. 50, 64 L.Ed. 103, which has been substantially undercut, if not totally placed in disrepute, by Green v. United States (1957), 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199. North Carolina v. Pearce...