State v. Sparrow

• Decision Date: 13 May 1970
• Citation: 173 S.E.2d 897,276 N.C. 499
• Parties: STATE of North Carolina v. Marvin Ray SPARROW, Katherine Taft Sparrow, and Britton Oxidine, Jr. No 15.
• Court: North Carolina Supreme Court

Page 897

173 S.E.2d 897

276 N.C. 499

STATE of North Carolina v. Marvin Ray SPARROW, Katherine Taft Sparrow, and Britton Oxidine, Jr.

No 15.

Supreme Court of North Carolina.

May 13, 1970.

Atty. Gen. Robert Morgan and Staff Atty. Burley B. Mitchell, Jr., Raleigh, for the State.

Casey & Daly, by George S. Daly, Jr., and Chambers, Stein, Ferguson & Lanning, by Adam Stein, Charlotte, for defendants-appellants; Taft, Stettinius & Hollister, by Thomas Allman, Cincinnati, Ohio, of counsel.

MOORE, Justice.

Each defendant received a greater sentence in the Superior Court than had been imposed by the district court. Appellants contend that this increase in sentence denied them due process of law and violated rights secured to them by the Sixth Amendment to the United States Constitution. 'Until recently, it was the general rule that a trial de novo meant a sentence de novo.' State v. Stafford, 274, N.C. 519, 531, 164 S.E.2d 371, 379. Defendants insist that the rule stated in Stafford, and supported by voluminous authority, was overruled by the decision in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

In Pearce, defendant was convicted at the May Term 1961 of Durham Superior Court of assault with intent to commit rape and sentenced to prison for a term of twelve to fifteen years. In 1965 he initiated a post conviction hearing which resulted in a reversal of his conviction by this Court for the wrongful admission of an involuntary confession. State v. Pearce, 266 N.C. 234, 145 S.E.2d 918. He was retried before another Superior Court judge and jury, and again convicted. The trial judge at the second trial imposed a sentence of eight years in prison which, when added to the time already served, amounted to a longer prison sentence than the 12-year minimum originally imposed. The second conviction and sentence were upheld by this Court, 268 N.C. 707, 151 S.E.2d 571. Pearce then instituted habeas corpus proceedings in the United States District Court for the Eastern District of North Carolina. That court held the more severe sentence unconstitutional and void and ordered his release upon failure of the State court to resentence him within sixty days. This order was affirmed by the Fourth Circuit Court of Appeals. (397 F.2d 253). The United States Supreme Court granted Certiorari and in affirming the lower court stated:

'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 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.'

We hold that Pearce is factually distinguishable from the instant case and has no application here. The following language from State v. Morris, 275 N.C. 50, 61, 165 S.E.2d 245, 252, is in point:

'The fact that defendant received a greater sentence in the superior court then he received in the Recorder's Court of Thomasville is no violation of his constitutional or statutory rights. Upon appeal from an inferior court for a trial De novo in the superior court, the superior court may impose punishment in excess of that imposed in the inferior court provided the punishment imposed does not exceed the statutory maximum. State v. Tolley, 271 N.C. 459, 156 S.E.2d 858 (1967).'

In Pearce, the superior court had original jurisdiction. Here, its jurisdiction is derivative. In Pearce, the same court that imposed the first sentence imposed the second. Not so here. In Pearce, the first conviction was voided on constitutional grounds. Here, defendants simply appealed as a matter of right from an inferior trial court to a superior trial court where they were tried De novo pursuant to G.S. § 7A--288 (now G.S. § 7A--290) and G.S. § 15--177.1. In Pearce, appellant was required to attack the validity of his conviction and sentence in the trial court and seek reversal for constitutional errors committed there. Here, an appeal entitled these defendants to a trial De novo in the Superior Court as a matter of right. This is true even when an accused pleads guilty in the inferior court. State v. Broome, 269 N.C. 661, 153 S.E.2d 384; State v. Meadows, 234 N.C. 657, 68 S.E.2d 406. When an appeal of right is taken to the Superior Court, in contemplation of law it is as if the case had been brought there originally and there had been no previous trial. The judgment appealed from is completely annulled and is not thereafter available for any purpose. State v. Goff, 205 N.C. 545, 172 S.E. 407; State v. Meadows, supra; Spriggs v. North Carolina, 243 F.Supp. 57 (M.D.N.C.1965); Doss v. North Carolina, 252 F.Supp. 298 (M.D.N.C.1966). In Pearce the defendant was given a new trial on his appeal from an incorrect ruling which was adverse to him. The court's error necessitated the appeal. Under those facts the imposition of additional punishment would in effect have penalized him for asking the court to correct its error. This distinction is emphasized in Lemieux v. Robbins, 414 F.2d 353 (1st Cir. 1969), cert. den. 379 U.S. 1017, 90 S.Ct. 1247, 25 L.Ed.2d 432, which approves the North Carolina rule. In that case the defendant on an appeal from the district court to the Superior Court in the State of Maine, as in North Carolina, was entitled to a trial De novo. On his conviction in the Superior Court he was given a greater sentence than that imposed in the district court. The Circuit Court of Appeals for the First Circuit said:

'* * * Nor, unlike the situation in Pearce, need he demonstrate error, constitutional or other, in a first trial to secure a second trial, which very proof of error gives the state the opportunity to increase the punishment. Such is indeed a one way street. Here we deal with a two way street. Defendant has the benefit of two full opportunities for acquittal. If he fails to gain acquittal in the district court, his mere exercise of his right to 'appeal' not only gives him a new trial but vacates the judgment and removes the entire case to the Superior Court. The state is willing to accept this in the long-run interest of reducing the load on the Superior Court. The defendant need not accept it at all.'

It is our view, and we so hold, the decision in Pearce is not fashioned to apply to judgments pronounced on appeal from inferior tribunals.

The composition and operation of the Superior Court and the district court emphasize the validity of these distinctions between Pearce and the case before us. A district court makes no transcript of the evidence in the trial of a criminal case. It is therefore impossible for a Superior Court judge, upon appeal from a district court, to know what evidence and what facts affected the imposition of sentence in the court below. Furthermore, in a criminal trial before a jury in Superior Court more evidence is ordinarily presented and a more extensive cross-examination is conducted. Thus the facts are more fully developed. The Superior Court judge is generally a lawyer with extensive trial experience and with a deep understanding with respect to proper punishment. It is essential to the proper administration of justice that he use his own independent judgment, based upon the facts as they appear in the trial before him, in imposing punishment; otherwise, trial in the Superior Court becomes a travesty upon justice and a waste of time.

To hold that upon appeal the Superior Court judge may decrease the sentence imposed below but is precluded from increasing it would necessarily destroy the district court system of this State. With all to gain and nothing to lose, defendants would swamp the Superior Court with appeals in every case and render trials in the district court a vain and worthless exercise. On the other hand, it could tempt district court judges to impose maximum sentences which likewise would prompt every defendant to give automatic notice of appeal. Inasmuch as the trial in the Superior Court is without regard to the proceedings in the district court, the judge of the Superior Court is necessarily required to enter his own independent judgment. his sentence may be lighter or heavier than that imposed by the inferior court, provided, of course, it does not exceed the maximum punishment which the inferior court could have imposed. Such is the rule in North Carolina. State v. Meadows, supra (234 N.C. 657, 68 S.E.2d 406). There is no sensible alternative and, in our opinion, there is nothing in Pearce which requires us to hold otherwise. It should also be noted that Pearce was decided 23 June 1969, and the sentences in the present case were imposed on 29 May 1969. This assignment of error is overruled.

Defendant Oxidine was convicted of contributing to the delinquency of a minor. He contends the statute under which he was charged is 'so sweeping and vague' as to deny him due process guaranteed by the Fourteenth Amendment. The challenged statute is G.S. § 110--39 (now G.S. § 14--316.1 by virtue of Session Laws 1969, Chapter 911, Section 4), which provides in pertinent part that any person 'who knowingly or wilfully is responsible for, or who encourages, aids, causes, or...