State v. Higgenbottom, No. 3074.

• Court: Court of Appeals of South Carolina
• Writing for the Court: ANDERSON.
• Citation: 337 S.C. 637,525 S.E.2d 250
• Parties: The STATE, Respondent, v. Jeffrey HIGGENBOTTOM, Appellant.
• Decision Date: 16 November 1999
• Docket Number: No. 3074.

337 S.C. 637
525 S.E.2d 250

The STATE, Respondent,
v.
Jeffrey HIGGENBOTTOM, Appellant

No. 3074.

Court of Appeals of South Carolina.

Heard October 7, 1999.

Decided November 16, 1999.

Rehearing Denied January 29, 2000.

337 S.C. 638

Assistant Appellate Defender Aileen P. Clare, of South Carolina Office of Appellate Defense, of Columbia, for Appellant

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Assistant Attorney General G. Robert DeLoach, III, all of Columbia; and Solicitor Barbara R. Morgan, of Aiken, for Respondent.

337 S.C. 639

ANDERSON, Judge

Jeffrey Higgenbottom entered an Alford¹ plea to one count of possession of cocaine, first offense. The trial court sentenced Higgenbottom to two years imprisonment and a $5,000 fine, suspended upon the service of thirty days or payment of $750, and eighteen months probation. The day after the plea, Higgenbottom moved for reconsideration of his probationary sentence. The court extended his probationary term from eighteen to twenty-four months. Higgenbottom appeals, seeking a new trial, or in the alternative, a new hearing on his motion for reconsideration. We affirm.

FACTS/PROCEDURAL BACKGROUND

While being "booked" after a disorderly conduct arrest, Higgenbottom pulled a spoon out of his pocket and told the officers he "might as well get one last piece of it." The officers seized the spoon, which tested positive for cocaine residue. Higgenbottom claimed he found the spoon while cleaning the parking lot at his tire store, placed it in his pocket when "a customer pulled up," and "forgot [he] had it."

ISSUE

Is there a "reasonable likelihood" the enhancement of Higgenbottom's sentence on motion to reconsider constituted vindictiveness on the part of the trial judge?

LAW/ANALYSIS

Higgenbottom asserts the trial court violated his due process rights when the court imposed a harsher sentence upon reconsideration. He contends the "extension of [his] sentence is unlawful because it was imposed solely in retaliation for [his] exercise" of his right to bring post-trial motions. We disagree.

Higgenbottom did not personally attend his motion for sentence reconsideration. When Higgenbottom's counsel informed the court of the nature of the motion, to request

337 S.C. 640

reduction of the probationary sentence from eighteen to twelve months, the following exchange occurred

The Court: Mr. Landry, Mr. Higgenbottom is lucky. Maybe I ought to reconsider his sentence completely.

Mr. Landry [defense counsel]: I discussed that with him before I came.

The Court: It takes a lot of courage for a lawyer to come back to ask for a reconsideration like that. Since this term of court has not expired and since he is asking for a reconsideration maybe I ought to just reconsider it on my own and extend his sentence ... have his [sic] picked up to do jail time.

Mr. Landry: I understand that, Your Honor. I discussed it with him before he asked for this.

The Court: He just about talked himself into jail as it was. No, sir; I'm going to give him twenty-four months probation. We're going to see if he can do probation. Maybe he'll be cleaning up his lot again. Since you made the motion to reconsider, I'm denying that motion and I'm reconsidering my sentence and extending his probation to twenty-four months. (Emphasis added).

Initially, we note the State maintains Higgenbottom failed to preserve this issue for appeal because he did not argue to the trial court that the court had improperly extended his probationary sentence. To preserve a challenge to sentencing, an appellant must raise the issue to the trial court. State v. Johnston, 333 S.C. 459, 510 S.E.2d 423 (1999). Higgenbottom objected to his original sentence and received a higher sentence on resentencing. If Higgenbottom objected to his sentence in this resentencing scenario, surely he would place himself in a perilous posture. The "rule of futility" should save Higgenbottom from the clutches of Johnston. In State v. Pace, 316 S.C. 71, 447 S.E.2d 186 (1994), the Supreme Court enunciated a "rule of futility" in certain trial scenarios. Pace edifies: "As to counsel's failure to raise an objection, the tone and tenor of the trial judge's remarks concerning her gender and conduct were such that any objection would have been futile." Id. at 74, 447 S.E.2d at 187. State v. McDaniel, 320 S.C. 33, 462 S.E.2d 882 (Ct.App.1995), amplifies the dilemma of a defense attorney: "So long as the judge had an

337 S.C. 641

opportunity to rule on an issue, and did so, it was `not incumbent upon defense counsel to harass the judge by parading the issue before him again.'" Id. at 37, 462 S.E.2d at 884. Apodictically, the tone and tenor of the judge revealed the futility of an objection.

In the seminal case of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the United States Supreme Court addressed the constitutionality of the imposition of a harsher sentence on retrial after a criminal defendant successfully attacks an initial conviction on appeal. The Court opined:

We hold ... that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction. A trial judge is not constitutionally precluded, in other words, 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." Such information may come to the judge's attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant's prison record, or possibly from other sources. The freedom of a sentencing judge to consider the defendant's conduct subsequent to the first conviction in imposing a new sentence is no more than consonant with the principle, fully approved in Williams v. New York, [337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)], that a State may adopt the "prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime."

To say that there exists no absolute constitutional bar to the imposition of a more severe sentence upon retrial is not, however, to end the inquiry. There remains for consideration the impact of the Due Process Clause of the Fourteenth Amendment.

It can hardly be doubted that it would be a flagrant violation of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside. Where, as in

337 S.C. 642

each of the cases before us, the original conviction has been set aside because of a constitutional error, the imposition of such a punishment, "penalizing those who choose to exercise" constitutional rights, "would be patently unconstitutional." And the very threat inherent in the existence of such a punitive policy would, with respect to those still in prison, serve to "chill the exercise of basic constitutional rights." But even if the first conviction has been set aside for nonconstitutional error, the imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be no less a violation of due process of law. "A new sentence, with enhanced punishment, based upon such a reason, would be a flagrant violation of the rights of the defendant." A court is "without right to ... put a price on an appeal. A defendant's exercise of a right of appeal must be free and unfettered.... [I]t is unfair to use the great power given to the court to determine sentence to place a defendant in the dilemma of making an unfree choice." "This Court has never held that the States are required to establish avenues of appellate review, but it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.["]

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.

Pearce, 395 U.S. at 723-24, 89 S.Ct. at 2079-80, 23 L.Ed.2d at 668-69 (citations and footnote omitted).

The Pearce Court fashioned a presumption that a trial court's imposition of a harsher sentence upon resentencing results from vindictiveness and offered prophylactic measures a trial court could use to protect itself from reversal in instances in which it imposed a harsher, albeit nonvindictive, sentence upon reconviction:

337 S.C. 643

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 constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

Pearce, 395 U.S. at 726, 89 S.Ct. at 2081, 23 L.Ed.2d at 670.

The Pearce presumption has been emasculated by subsequent cases. In Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102-03, 40 L.Ed.2d 628, 634 (1974), the Court explained Pearce and its...