State v. Harrington

• Decision Date: 04 November 2011
• Docket Number: No. 09–1125.,09–1125.
• Citation: 805 N.W.2d 391
• Parties: STATE of Iowa, Appellee, v. Stevie Dewayne HARRINGTON, Appellant.
• Court: Iowa Supreme Court

805 N.W.2d 391

STATE of Iowa, Appellee,

v.Stevie Dewayne HARRINGTON, Appellant.

No. 09–1125.

Supreme Court of Iowa.

Nov. 4, 2011.

Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brad P. Walz, Assistant County Attorney for appellee.

HECHT, Justice.

When the defendant's case was remanded for resentencing on four drug-related convictions, the district court imposed two sentencing enhancements it had not imposed when the defendant was sentenced originally. The defendant contends the imposition of the sentencing enhancements was the result of judicial vindictiveness in violation of the rule established in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Because the defendant received a shorter overall sentence on resentencing for the four convictions, we conclude the presumption of judicial vindictiveness does not apply and affirm his sentences.

I. Background Facts and Proceedings.

After police found drugs and weapons during searches of residences with which Stevie Harrington was associated in January and March of 2007, Harrington and his brother were charged with five drug-related offenses.¹ Harrington pled guilty to counts V and VI—charges stemming from the March search—possession of cocaine base with intent to deliver within 1000 feet of a public park and failure to affix a drug tax stamp. After a trial on counts I, II, and III, Harrington was convicted of all three of the other offenses—possession of cocaine base with intent to deliver while in immediate possession of a firearm and within 1000 feet of a public school, failure to affix a drug tax stamp, and unauthorized possession of an offensive weapon.

The district court sentenced Harrington to a total of forty years. His sentence included thirty years for count I, which included a mandatory sentence enhancement for being in the immediate possession of a firearm, and ten years for count V to be served consecutively. Five-year sentences for each of counts II, III, and VI were to be served concurrently.

Harrington appealed, and the court of appeals concluded there was insufficient evidence to support the sentencing enhancement for immediate possession of a firearm in count I and the district court had relied on improper factors for imposing sentence. The case was remanded for resentencing.

On resentencing, the district court sentenced Harrington to a total of thirty years. The district court imposed consecutive fifteen-year sentences for counts I and V and concurrent five-year sentences for each of counts II, III, and VI. The sentences for counts I and V each included a discretionary five-year sentence enhancement because the offenses were committed within 1000 feet of a school or park—enhancements that the district court did not apply in Harrington's original sentence.

Harrington appealed contending that, although his overall sentence decreased, because the district court applied the sentencing enhancements on counts I and V, which had not been applied when he was originally sentenced, he is entitled to a presumption of judicial vindictiveness under North Carolina v. Pearce.² The court of appeals affirmed, and we granted his application for further review.

II. Scope of Review.

Because Harrington alleges his sentence on remand was the result of judicial vindictiveness that violated his due process rights,³ our review is de novo. State v. Mitchell, 670 N.W.2d 416, 418 (Iowa 2003).

III. Discussion.

Because the jury had found Harrington was in the immediate possession of a firearm while possessing cocaine base in count I, the district court tripled the ten-year sentence in the original sentence. See Iowa Code § 124.401(1)( f ) (2007). The State also asked the court to impose the discretionary five-year sentence enhancements on counts I and V for committing the offense within 1000 feet of a park or school. See id. § 124.401A. When explaining the rationale for the sentences originally imposed, the district court noted that “one [of the offenses occurred] with the public school being nearby, the other one with a public park being nearby” but did not apply the enhancements for being within 1000 feet of a school or park.

Although Harrington acknowledges his overall sentence decreased, because the district court imposed the five-year public school/park enhancements when the case was remanded, Harrington argues he is entitled to a presumption of judicial vindictiveness as described in Pearce. He acknowledges that the court of appeals has concluded when a defendant's aggregate sentence after resentencing is less than his original sentence, the Pearce presumption of vindictiveness does not apply. State v. Bolsinger, 738 N.W.2d 643, 646 (Iowa Ct.App.2007). He encourages us to overrule Bolsinger.

The State contends that because Harrington's combined new sentence is less than his former total sentence, the Pearce presumption is inapplicable and no due process violation occurred. The State relies on Bolsinger, as well as the decisions of a majority of the federal circuits and state courts that have addressed the issue, to support its position that the Pearce presumption of vindictiveness does not arise when a defendant's aggregate sentence after resentencing is less than his original aggregate sentence. This is a matter of first impression for this court.

The United States Supreme Court established in Pearce that due process concerns are implicated when a defendant receives a harsher sentence on remand after successfully appealing his conviction because he appealed his conviction. To ensure defendants are not “chilled” from exercising their rights to appeal, the Court created a prophylactic rule to safeguard against vindictiveness in sentencing.

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 occurring after the time of the original sentencing proceeding.

Pearce, 395 U.S. at 725–26, 89 S.Ct. at 2080–81, 23 L.Ed.2d at 669–70 (footnote omitted). Thus Pearce established a presumption of judicial vindictiveness if a more severe sentence is imposed after a new trial, unless reasons for the harsher sentence appear in the record. The holding in Pearce has been narrowed in subsequent decisions, clarifying that due process does not prohibit an increase in sentences upon retrial, but rather prohibits “increased sentences when that increase was motivated by vindictiveness on the part of the sentencing judge.” Texas v. McCullough, 475 U.S. 134, 137, 106 S.Ct. 976, 978, 89 L.Ed.2d 104, 110 (1986). Thus, the presumption does not apply in situations where there is not a reasonable likelihood of judicial vindictiveness, such as when a different judge or jury imposes the increased sentence or when the second sentence is imposed after a jury trial following an overturned guilty plea. Id. at 140, 106 S.Ct. at 979, 89 L.Ed.2d at 111–12; see also Alabama v. Smith, 490 U.S. 794, 801, 109 S.Ct. 2201, 2205, 104 L.Ed.2d 865, 873–74 (1989). However, the Supreme Court has not yet addressed when the presumption will be applied in a case like this one—where a defendant successfully appeals one or more of several convictions and receives a lower overall sentence on remand, but a greater sentence on an individual count.

Most courts that have considered the issue have applied what is called the “aggregate” approach. Under this approach, a defendant's aggregate sentence before resentencing is compared with his or her aggregate sentence after resentencing. If the new aggregate sentence is less than the original aggregate sentence, the Pearce presumption of vindictiveness does not apply. United States v. Campbell, 106 F.3d 64, 68 (5th Cir.1997); United States v. Sullivan, 967 F.2d 370, 374 (10th Cir.1992); United States v. Mancari, 914 F.2d 1014, 1020 (7th Cir.1990); Kelly v. Neubert, 898 F.2d 15, 18 (3d Cir.1990); United States v. Pimienta–Redondo, 874 F.2d 9, 15 (1st Cir.1989); United States v. Gray, 852 F.2d 136, 138 (4th Cir.1988); United States v. Bay, 820 F.2d 1511, 1514 (9th Cir.1987); People v. Savala, 147 Cal.App.3d 63, 195 Cal.Rptr. 193, 197 (1983), overruled on other grounds by People v. Foley, 170 Cal.App.3d 1039, 216 Cal.Rptr. 865, 867 (1985); People v. Woellhaf, 199 P.3d 27, 31–32 (Colo.App.2007); State v. Miranda, 260 Conn. 93, 794 A.2d 506, 528 (2002); White v. State, 576 A.2d 1322, 1329 (Del.1990); Adams v. State, 287 Ga. 513, 696 S.E.2d 676, 680 (2010); Owens v. State, 916 N.E.2d 913, 916–17 (Ind.Ct.App.2009); State v. Neville, 572 So.2d 1161, 1165–66 (La.Ct.App.1990); State v. Keefe, 573 A.2d 20, 22 (Me.1990); State v. King, 275 Neb. 899, 750 N.W.2d 674, 680–81 (2008); Commonwealth v. McHale, 924 A.2d 664, 673 (Pa.Super.Ct.2007), overruled in part on other grounds by Commonwealth v. Robinson, 931 A.2d 15, 21–22 (Pa.Super.Ct.2007). Although a presumption of judicial vindictiveness may not arise, under this approach if the aggregate sentence on resentencing is not greater than the original sentence, the defendant can still offer proof that the court acted with actual vindictiveness.⁴

The courts adopting the aggregate approach explain that it

best...