State v. King
| Citation | 275 Neb. 899,750 N.W.2d 674 |
| Decision Date | 13 June 2008 |
| Docket Number | No. S-07-458.,S-07-458. |
| Parties | STATE of Nebraska, appellee, v. Donell KING, appellant. |
| Court | Supreme Court of Nebraska |
Jon Bruning, Attorney General, and George R. Love for appellee.
In North Carolina v. Pearce,1 the U.S. Supreme Court held that due process imposes a presumption of vindictiveness when following a defendant's successful appeal, a sentencing judge orders a more severe sentence that is not justified by objective evidence in the record since the original sentencing. Appellant, Donell King, contends that because he had successfully appealed his habitual criminal status in a previous appeal, the district court was presumptively vindictive when it resentenced him on remand to a greater aggregate minimum term.
King's three felony sentences were originally subject to 10-year mandatory minimum terms under the habitual criminal statutes. Because the district court imposed consecutive sentences, King's aggregate mandatory minimum term was 30 years. On remand, the district court resentenced King to consecutive terms of 20 to 25 years' imprisonment. It reasoned that without the mandatory minimum requirement, King would still be eligible for parole in 30 years and would serve the same time in prison.
We affirm because the Pearce presumption does not apply. The district court's sentences on remand reflect a calculated effort to craft sentences functionally equivalent to its original sentencing intent. The sentences do not increase King's prison time. The enlarged minimum term is neither more severe in effect nor a sentencing circumstance that raises a reasonable likelihood of vindictiveness.
This is King's third appeal from the district court's original sentences for first degree sexual assault, kidnapping, and robbery. The district court originally sentenced King to three consecutive sentences of 10 to 25 years' imprisonment. In both King's first and second appeals, we held that the State had failed to prove King's habitual criminal status.2 In each appeal, we vacated the enhanced sentences and remanded for resentencing.
At King's third enhancement hearing, the district court concluded that the State had again failed to prove King's habitual criminal status. Commenting on why the sentences it was about to impose did not increase King's original sentences, the court stated:
The [e]ffect on the actual time that ... King is going to serve is going to be non-existent. [King] was sentenced ... for the harm that was caused and the danger that he posed to public safety.... [T]he habitual criminal designation simply shifted the range of possible sentences that could be imposed. And because all three of the convictions here were already Class III felonies, it doesn't have an impact on the time that he would be required to serve, as it might have in a Class IV or a Class III(a) felony.
The court then proceeded to sentencing and stated that it intended "to impose the same amount of actual prison time." King objected to any increase in his three consecutive terms because there was no new evidence to justify an increase in his sentences. The prosecutor argued that King's offenses had been extremely violent and that to impose the same consecutive terms without the mandatory minimum terms under the habitual criminal statutes would give King an earlier parole eligibility date.
In response to these arguments, the court calculated that under King's original three consecutive terms of 10 to 25 years, he would have served at least 30 years' imprisonment. The court based its calculation on the habitual criminal statutes, which mandate a minimum sentence of 10 years for each felony conviction. The court further calculated that under the original sentences, if King did not lose good time credit, he would have reached his mandatory release date in 37½ years, or one-half of his 75-year aggregate maximum term. The court concluded that King's original sentences imposed 30 to 37½ years in actual prison time.
The court then stated: The court reasoned that without the mandatory minimum sentences, King would still be eligible for parole in 30 years. Under the new consecutive terms, the court also concluded that he would still reach his mandatory release date in 37½ years, assuming he did not lose good time credit. The court stated that "the consecutive sentences of 20 to 25 years replicate the earlier sentence[s] in real time."
King assigns that the district court denied him due process when it imposed greater sentences after his successful appeal of the court's earlier sentences.
Whether the district court's resentencing of a defendant following a successful appeal violates the defendant's due process rights presents a question of law.3 When we review questions of law, we resolve the questions independently of the lower court's conclusions.4
King contends that the sentences he received after he successfully appealed his habitual criminal enhancement were effectively harsher sentences. He claims these sentences triggered the presumption of vindictiveness under the U.S. Supreme Court's decision in Pearce.5
In Pearce, the U.S. Supreme Court held that due process prohibits imposing a more severe sentence at retrial if it is motivated by vindictiveness toward a defendant for having successfully attacked his conviction.6 The U.S. Supreme Court has characterized its decision in Pearce as applying "a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence."7 Yet Pearce is not an absolute bar against a trial judge's imposing an increased sentence following a successful appeal; a sentencing judge has wide discretion in determining an appropriate sentence.8 But the Pearce Court held that a judge who had originally sentenced a defendant could not impose a more severe punishment upon resentencing unless certain conditions were present: (1) The new sentence must be based upon objective information concerning the defendant's identifiable conduct occurring after the time of the original sentencing proceeding, and (2) the factual basis establishing such conduct must be included in the record.9
The presumption of vindictiveness under Pearce can also apply to a remand for resentencing after a defendant has successfully challenged the sentence itself and not the conviction.10 It does not apply if a different judge resentences the defendant after the defendant successfully appeals the first sentence.11 But here the same judge resentenced King.
The Pearce presumption is directed at the "vindictiveness of a sentencing judge," not simply enlarged sentences.12 Because of the presumption's severity, "the Court has [presumed an improper vindictive motive] only in cases in which a reasonable likelihood of vindictiveness exists."13 Obviously, the presumption does not apply if the circumstances do not present a reasonable likelihood of vindictiveness. For example, the presumption does not apply when a court vacates its own erroneous sentence under a sentencing statute and resentences the defendant to an arguably harsher sentence to comply with the statute.14 A court must "look to the need, under the circumstances, to `guard against vindictiveness in the resentencing process.'"15 "Where the prophylactic rule of Pearce does not apply, the defendant may still obtain relief if he can show actual vindictiveness upon resentencing."16 King, however, does not argue that the record reflects proof of actual vindictiveness.
In a habitual criminal proceeding, Pearce requires reversal of an increase in the aggregate maximum sentence after a successful appeal of an unlawful sentence.17 To avoid reversal, the district court must justify such an increase with new evidence at the resentencing hearing about the offense or the defendant.18
We have also held that an increase in the aggregate minimum term on remand violated Pearce. In State v. McArthur,19 the defendant pleaded guilty to two Class IV felony offenses and one Class III felony offense. The district court sentenced him to three consecutive terms of imprisonment: 1 to 5 years for each Class IV felony and 6 to 20 years for the Class III felony. On appeal, we vacated the judgment and sentences because the court failed to advise the defendant that one of his sentences must be served consecutively. We remanded for further proceedings. On remand, the State dismissed one of the Class IV charges. For the two remaining offenses, the district court increased the terms of the consecutive sentences: 20 months to 5 years for the remaining Class IV felony and 80 months to 20 years for the Class III felony.
In his second appeal, the defendant assigned as error the court's increase in the minimum sentences for the two remaining felonies. The aggregate maximum sentence for the two offenses was the same. We stated that the sentencing court had increased the defendant's combined minimum sentence for the two offenses by 16 months. Applying Pearce, we concluded that 20
We believe McArthur is distinguishable. The increase in the defendant's aggregate minimum sentence would have lengthened the time he served in prison before being eligible for parole. That is not so here.
Other courts have held that Pearce does not apply when...
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