People v. Payne

• Decision Date: 09 November 1971
• Docket Number: No. 35,A,35
• Citation: 386 Mich. 84,191 N.W.2d 375
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leroy PAYNE, Defendant-Appellant. pril Term.
• Court: Michigan Supreme Court

Page 375

191 N.W.2d 375

386 Mich. 84

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

No. 35, April Term.

Supreme Court of Michigan.

Nov. 9, 1971.

Ronald J. Taylor, Pros. Atty. by John A. Smietanka, Asst. Pros. Atty., Berrien County, Michigan, St. Joseph, for plaintiff-appellee

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

Before the Entire Bench.

T. M. KAVANAGH, Chief Justice.

Defendant-appellant Leroy Payne was convicted in the Berrien county circuit court, by his guilty plea, of assault with intent to murder. ¹ On March 8, 1963, he was sentenced by the Honorable Philip A. Hadsell to a minimum of 19 years and a maximum of 40 years in prison. At the conclusion of a hearing subsequently ordered by the Court of Appeals, Payne's guilty plea and a prior confession were determined to have been involuntary and his conviction and sentence were vacated. Motion for a change of venue was granted to Kent county. Payne was reconvicted of assault with intent to murder by a jury in Kent county circuit court. Upon remand to Berrien county, the Honorable Chester J. Byrns, Berrien county circuit judge, who had presided over Payne's Kent county trial, sentenced him to prison for a term of 25 to 50 years with credit for time served and 'good time' earned.

The following excerpt from the transcript of appellant Payne's second sentencing is pertinent to his claim, hereinafter discussed, that the sentence imposed was excessive:

'THE COURT: * * * Mr. Payne, in presiding over your three day trial, I want to tell you that without any reservation, I agreed with the jury's verdict of guilty. I heard your own testimony and I heard your cross-examination, and of course I had an ample opportunity of hearing about your crime which was one of extreme violence. It was senseless; it was cruel, and frankly, I think it reflected a depravity of heart and but not for the grace of God, and the good physical condition of Victor Yost, he survived. He was shot not once, not twice, but three times. Mr. Yost has suffered and is still suffering from the near fatal wounds that you inflicted. You were there when the doctor's testimony reflected that it took some three to four hours spent in surgery trying to save this man's life. Mr. Yost is a brave and able officer and is to be complimented for the excellent and fair manner in which he testified at your trial. And a police officer, whether he may be popular with someone or not is nevertheless a symbol of authority and whoever shoots a police officer in line of duty assaults not only the officer; not only the man, but he assaults all of society because law and order cannot exist unless our officers have the respect and the protection to which they are entitled to. These are precious rights of citizenship 'Assault with intent to murder, especially when a gun is used, is a most serious crime when the victim is a police officer in line of duty. I have felt since I have been judge that crimes of violence are the worst, and I have felt that the use of weapons shows a willfullness and a hatred of which we have too much of in our society today.

which you and I recognize and which would not exist if it were not for officers like Victor Yost who are willing not only to work, but even to die to preserve these rights.

'When you appeal, and win a new trial, you wipe clean the previous conviction and sentence. You have then a presumption of innocence which I think the record will bear out and of which I maintain I protected throughout your trial and which your attorney was most zealous in insuring. This Court is no longer bound by the earlier sentence. I cite an authority, Mr. Reporter, People versus Poole, P-O-O-L-E, 7 Michigan, Appellate 291 (sic) (237, 151 N.W.2d 365).

'In your trial, you might have been acquitted and set free and you also risked a larger sentence with a different judge and this is a different judge between your sentence of five and one half years ago and today; a judge who had a more detailed account of what you did during this new trial than the judge who sentenced you on a plea of guilty and did not have the same opportunity to form impressions nor did my distinguished colleague hear all of the details as it came out in this particular trial.

'I am not setting a larger sentence than what I will set in a few minutes because you appealed or because of any added work or expense of a new trial. This I assure you, and every American citizen has an absolute right to an appeal and to redress. As citizens, they are entitled to use the protection and rights that the law gives them and I would like to think that no judge will be more careful than I to insure this which we reward no man because he pleads guilty and we punish no man because he pleads innocent. The larger sentence which I impose here is based on the nature of the crime and on the impressions which I formed of you and of the crime for the three days of the trial and what I honestly believe your crime showed of your character and attitude. Now, I had considered a mandatory life sentence because the maximum term of imprisonment here could be any term of years up to life imprisonment. The only reason that I am not doing this is that I am looking into your past history and I have given this searching thought right up to the very last moment. You have a very poor family background for which you are not to blame, Mr. Payne. Your school reports were good and you served approximately three years in the Army and you earned an honorable discharge while in service although I believe there was a court-martial--wasn't there, Mr. Payne?

'THE RESPONDENT: It was just a minor matter. It wasn't what you would call a court-martial--

'THE COURT: Administrative--company punishment?

'THE RESPONDENT: Yes, sir.

'THE COURT: But you did receive an honorable discharge?

'THE RESPONDENT: Yes, sir.

'THE COURT: And by your own efforts, you completed high school and the employers you had all said that you were a good employee. I have also checked at the prison where you have been and your conduct there is reported as good during the past four years and some odd months that you have been there and that you have been using the educational and rehabilitation facilities that are available.

'These are the factors which I have considered on the good side of the ledger The Court of Appeals affirmed (Quinn, P.J. and Holbrook, J.; T. M. Burns, J., dissenting). 18 Mich.App. 42, 170 N.W.2d 523. Appellant is here on leave granted. 383 Mich. 760.

which have frankly saved you from a sentence of life imprisonment.' (Transcript of sentence, pp. 4--9) (Emphasis added.)

The questions of the propriety and constitutionality of imposing a harsher sentence after a defendant has overturned his conviction on appeal and been reconvicted have long divided American courts. Annotation, 12 A.L.R.3d 978; Van Alstyne, 'In Gideon's Wake: Harsher Penalties and the 'Successful' Criminal Appellant,' (1965), 74 Yale L.J. 606; Comment (1968), 28 Md.L.Rev. 64. This Court recently considered the problem in People v. Olary (1969), 382 Mich. 559, 170 N.W.2d 842. In upholding a harsher penalty upon reconviction, the Olary majority distinguished the case of North Carolina v. Pearce ² (Simpson v. Rice) (1969), 395 U.S. 711, 89 S.Ct. 2072, 2089, 23 L.Ed.2d 656, hereinafter discussed, on the grounds that defendant Olary's

'original sentence was imposed by a justice of the peace, not required to be legally trained, and the second sentence was by a circuit judge, a duly licensed lawyer, after report to him, as provided by statute, by the probation officer as to defendant's background, record and attitude, to enable the circuit judge to fit the punishment to the offender.' (Olary, supra, 382 Mich. at 567, 170 N.W.2d at 845.)

Further distinguishing Pearce, supra, the Court noted that Mr. Olary's second conviction and resentencing were not occasioned by his having demonstrated to a superior tribunal that his original conviction was tainted with constitutional error but by his decision to assert his right to a trial de novo in the circuit court. ³

Assuming Pearce, supra, was properly distinguished in Olary, supra, we do not think the present case is distinguishable because unlike Olary this case involves a felony conviction, a reversal by way of appeal because of constitutional error, and disparate sentences, imposed by judges of the same level and court, both of whom were provided with the statutory presentencing reports. ⁴ We, therefore, proceed In Pearce the United States Supreme Court held, Inter alia, that neither the equal protection clause of the 14th Amendment nor the double jeopardy clause of the 5th Amendment imposes an absolute bar to a more severe sentence upon reconviction. But the Court further held that the due process clause of the 14th Amendment requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the second sentence he receives; and the defendant must be freed of the apprehension of such retaliatory motivation on the part of the sentencing judge. Resolution of the Federal constitutional question raised by appellant Payne requires interpretation and application of the following language from Pearce, supra:

to consider appellant Payne's contention that the imposition of a harsher sentence following his successful appeal and reconviction was violative of the 14th Amendment due process standards and procedures laid down in North Carolina v. Pearce, Supra. ⁵

'A trial judge is not constitutionally precluded * * * from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant's 'life, health, habits, conduct, and mental and moral propensities.' Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 1082, 93 L.Ed. 1337. Such information may...