State v. Carpenter

Decision Date20 August 1991
Docket NumberNo. 14173,14173
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Richard T. CARPENTER, Jr.

John R. Williams, New Haven, for appellant (defendant).

Steven M. Sellers, Asst. State's Atty., with whom, on the brief, was Michael Dearington, State's Atty., for appellee (state).

Before SHEA, CALLAHAN, GLASS, COVELLO and BORDEN, JJ.

CALLAHAN, Associate Justice.

The issue in this appeal is whether a criminal defendant's right to due process is violated when he is resentenced on a lesser included offense after a successful appeal of the greater offense and receives a sentence which, while thirty years less than his original sentence, is the maximum sentence allowed for the lesser offense, when he had received only five-sixths of the maximum sentence allowed for the greater offense.

The defendant, Richard T. Carpenter, Jr., was convicted of the crime of murder in violation of General Statutes § 53a-54a and sentenced to a term of imprisonment of fifty years. The maximum prison term for murder is imprisonment for "life," which is defined to mean "a definite sentence of sixty years." General Statutes §§ 53a-35a and 53a-35b. After the defendant appealed his conviction to this court, we vacated his murder conviction and remanded the case for resentencing on the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(3). State v. Carpenter, 214 Conn. 77, 87, 570 A.2d 203 (1990). On remand, the trial court sentenced the defendant to a term of imprisonment of twenty years, the maximum allowable sentence for manslaughter in the first degree. General Statutes § 53a-35a. The defendant has appealed, claiming that the maximum sentence of twenty years that he received for manslaughter in the first degree violates principles of due process and double jeopardy.

The defendant was convicted of causing the death of eighteen month old Cassandra Demming, who died from injuries she suffered when the defendant forcefully threw her into a bathtub. The underlying facts surrounding that tragic event are fully set forth in the opinion of this court in State v. Carpenter, supra. As a result of the death of the child, the defendant was charged with murder in violation of § 53a-54a. 1 He was tried and convicted of murder by a jury and was sentenced to a term of imprisonment of fifty years. Thereafter, the defendant appealed to this court claiming that his conviction was based on insufficient evidence to prove beyond a reasonable doubt that he had intended to cause the child's death. We reversed the trial court, finding that the evidence concerning the defendant's intent was insufficient, and remanded the case for sentencing on the lesser included offense of manslaughter in the first degree in violation of § 53a-55(a)(3). 2

At the resentencing hearing, the defendant argued to the trial court that principles of due process limited the maximum allowable sentence that could be imposed. Specifically, the defendant claimed that he was constitutionally protected from receiving a term of imprisonment greater than five-sixths of the twenty year maximum sentence for manslaughter in the first degree, or sixteen and two-thirds years, because the court originally had sentenced him to fifty years imprisonment, only five-sixths of the maximum sentence for murder of sixty years allowed by General Statutes § 53a-35b. 3 The trial court was unpersuaded by the defendant's argument and resentenced him to the maximum term of imprisonment of twenty years.

In this appeal, the defendant, relying on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and its progeny, claims that his resentencing to a twenty year period of incarceration violated principles of due process and double jeopardy. 4 He claims that because the sentence he received on remand was greater, in proportion to the maximum sentence statutorily available, than the sentence he originally received for murder, it is a more severe sentence for due process purposes than his original sentence. Further, he claims that because the sentence is more severe, the trial court had a duty to articulate its reasons for the sentence on the record in order to avoid a presumption of unconstitutional vindictiveness under Pearce. Because we conclude that the defendant did not receive a more severe sentence on remand, we find the defendant's argument unpersuasive.

Due process requires that "vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives" after prevailing on appeal. North Carolina v. Pearce, supra, 725, 89 S.Ct. at 2080; State v. Sutton, 197 Conn. 485, 499, 498 A.2d 65 (1985), cert. denied, 474 U.S. 1073, 106 S.Ct. 833, 88 L.Ed.2d 804 (1986). Therefore, "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear" and be made part of the record. (Emphasis added.) North Carolina v. Pearce, supra, 395 U.S. at 726, 89 S.Ct. at 2081; State v. Sutton, supra, 197 Conn. at 500, 498 A.2d 65. Initially then, before undertaking a Pearce analysis, we must determine whether the sentence imposed on remand was, in fact, greater than the sentence originally imposed. If it is not, application of the presumption of vindictiveness is not required. United States v. Vontsteen, 910 F.2d 187, 192, reh. granted, 919 F.2d 957 (5th Cir.1990); United States v. Bay, 820 F.2d 1511, 1513-14 (9th Cir.1987).

In determining whether the sentence was more severe, "[i]t is the actual effect of the new sentence as a whole on the total amount of punishment lawfully imposed by [the judge] on the defendant ... which is the relevant inquiry...." United States v. Markus, 603 F.2d 409, 413 (2d Cir.1979). Further, "[i]n determining whether the second sentence is harsher than the first, we look not at the technical length of the sentence but at its overall impact on [the defendant]." United States v. Williams, 651 F.2d 644, 647 (9th Cir.1981).

In determining the overall impact of a sentence on defendants, courts have found a wide range of resentencing possibilities to be more severe than the initial sentence. Certainly, a sentence on remand that imposes a longer sentence to serve in terms of actual years than did the original sentence would be considered more severe. North Carolina v. Pearce, supra; United States v. Williams, supra; State v. Sutton, supra. Similarly courts have determined that a sentence on remand requiring a defendant to remain on parole for a longer period of time; United States v. Albanese, 554 F.2d 543, 549 (2d Cir.1977); or to serve consecutive rather than concurrent sentences constitutes a greater punishment than the sentence originally imposed. State v. Macumber, 119 Ariz. 516, 522-23, 582 P.2d 162, cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978); Kinney v. State, ...

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