State v. Higgenbottom
Citation | 542 S.E.2d 718,344 S.C. 11 |
Decision Date | 12 February 2001 |
Docket Number | No. 25248.,25248. |
Court | United States State Supreme Court of South Carolina |
Parties | The STATE, Respondent, v. Jeffery HIGGENBOTTOM, Petitioner. |
Assistant Appellate Defender Aileen P. Clare, of the South Carolina Office of Appellate Defense, of Columbia, for petitioner.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Robert E. Bogan, Assistant Deputy Attorney General G. Robert Deloach, III, Assistant Attorney General Melody J. Brown, all of Columbia, and Solicitor Barbara R. Morgan, of Aiken, for respondent.
We granted a writ of certiorari to review the Court of Appeals' opinion in State v. Higgenbottom, 337 S.C. 637, 525 S.E.2d 250 (Ct.App.1999). We reverse.
Petitioner entered an Alford1 plea to possession of cocaine, first offense.2 The trial court sentenced him to two years imprisonment and a $5,000 fine, suspended upon the service of thirty days imprisonment or payment of $750, and 18 months probation.
The next day, petitioner moved for reconsideration of the probationary sentence. As he had at the plea, petitioner requested twelve months probation. The following colloquy then occurred:
(Emphasis added.)
Petitioner appealed, arguing that the harsher sentence constituted a due process violation because the trial court increased his sentence in response to his motion to reconsider. A divided Court of Appeals affirmed. Higgenbottom, supra.3
Did the Court of Appeals err in finding no due process violation where the trial court, without any explanation or new evidence, increased petitioner's sentence on a motion to reconsider?
Petitioner argues that his due process rights were violated when, in response to his motion for reconsideration and without any reasons on the record, the trial court increased his probationary sentence from 18 to 24 months. We agree.4
It is a due process violation to punish a person for exercising a protected statutory or constitutional right. State v. Fletcher, 322 S.C. 256, 471 S.E.2d 702, 704 (Ct.App.1996) (citing United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982)). In the landmark opinion of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Court held that the Due Process Clause of the Fourteenth Amendment prevented a trial court from penalizing a defendant for choosing to exercise his right to appeal. The Pearce decision involved a defendant who successfully attacked his conviction on appeal and then upon conviction at the retrial, a harsher sentence was imposed. The Court stated that "[d]ue process of law ... 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." Id. at 725, 89 S.Ct. at 2080, 23 L.Ed.2d at 669.
The Pearce Court therefore held 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... so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal." Id. at 726, 89 S.Ct. at 2081, 23 L.Ed.2d at 670. This rule became known as the Pearce presumption. Thus, without objective evidence of a proper motivation to increase the sentence, the Pearce presumption applies to find a due process violation.
As we noted in State v. Hilton, 291 S.C. 276, 353 S.E.2d 282, cert. denied, 484 U.S. 832, 108 S.Ct. 106, 98 L.Ed.2d 66 (1987), the Supreme Court has restricted the Pearce rule in subsequent cases. For instance, the Pearce presumption does not apply when the harsher sentence is imposed by the higher court in a two-tiered trial system. Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). The Court in Colten noted that the higher court which conducted Colten's trial and imposed the final sentence "was not the court with whose work Colten was sufficiently dissatisfied to seek a different result on appeal; and it is not the court that is asked to do over what it thought it had already done correctly." Id. at 116-17, 92 S.Ct. at 1960, 32 L.Ed.2d at 593 (emphasis added).
Nonetheless, we disagree with the lead opinion's conclusion in Higgenbottom that the Pearce rule has been "emasculated" by these subsequent cases. Higgenbottom, 337 S.C. at 643, 525 S.E.2d at 253. Indeed, the Supreme Court has continued to apply the Pearce presumption where the circumstances warrant its application. See Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984)
.5 Furthermore, in Alabama v. Smith, the most recent Supreme Court case to address Pearce, the Court stated that the Pearce presumption remains applicable under circumstances "in which there is a `reasonable likelihood' ... that the increase of sentence is the product of actual vindictiveness on the part of the sentencing authority." Alabama v. Smith, 490 U.S. at 799, 109 S.Ct. at 2205, 104 L.Ed.2d at 873 (citation omitted).
32 L.Ed.2d at 593. The trial court denied petitioner's request to reduce the sentence, and instead, increased the probationary sentence by six months. Under these circumstances, the Pearce presumption applies. See Alabama v. Smith, supra; Wasman, supra.
Because the trial court failed to put on the record objective reasons for the harsher sentence, the presumption cannot be rebutted. Accord Serrano, supra; Hidalgo, supra. Accordingly, we reverse the Court of Appeals, vacate the increased sentence, and reinstate petitioner's original 18-month probation sentence.
REVERSED.
2. The possession charge arose out of petitioner's arrest for disorderly conduct. According to the State, while petitioner was being booked, police asked petitioner to empty his pockets. Petitioner then pulled a spoon out of his pocket, told the police that he might as well get one last piece of it, and put the spoon in and out of his mouth. The police seized the spoon, and it tested positive for traces of cocaine. According to petitioner, he picked up the spoon while cleaning the parking lot of the tire shop where he works. He placed...
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