State v. Spaulding

• Decision Date: 29 August 1980
• Docket Number: No. 49618.,49618.
• Citation: 296 NW 2d 870
• Parties: STATE of Minnesota, Respondent, v. James Montgomery SPAULDING, Appellant.
• Court: Minnesota Supreme Court

296 N.W.2d 870 (1980)

STATE of Minnesota, Respondent, v. James Montgomery SPAULDING, Appellant.

No. 49618.

Supreme Court of Minnesota.

August 29, 1980.

C. Paul Jones, Public Defender, Michael F. Cromett and Robert Streitz, Asst. Public Defenders, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., Vernon E. Bergstrom, Chief, App. Section, David W. Larson and Toni A. Beitz, Asst. County Attys., Minneapolis, for respondent.

Heard before KELLY, TODD, and WAHL, JJ., and considered and decided by the court en banc.

WAHL, Justice.

Defendant appeals from his conviction by a Hennepin County jury of aggravated assault and felon in possession of a pistol.¹ He was sentenced to three to five years on the aggravated assault conviction. Defendant raises the following issues on appeal: (1) whether he was denied his constitutional right to due process of law when the State reinstated two charges in the complaint on retrial after the defendant successfully set aside his conviction; (2) whether the State violated Minn.Stat. § 609.035 (1978) by reinstating two charges in the complaint on retrial after the defendant successfully set aside his conviction; (3) whether the evidence was sufficient to support defendant's conviction for aggravated assault and felon in possession of a pistol; (4) whether the prosecutor committed reversible error in his final argument; and (5) whether the trial court committed reversible error in its instructions to the jury. We reverse and remand for a new trial.

1. Defendant first argues that he was denied due process of law because the State was allowed to reinstate two charges in the complaint on retrial after he had successfully set aside his conviction on appeal. A resolution of this issue requires discussion of the procedural history of the case.

The incident from which defendant's convictions arose occurred on April 25, 1977. Defendant was charged initially with aggravated robbery, aggravated assault, and felon in possession of a pistol. On July 15, 1977, the attorney for the State and defendant's attorney negotiated an agreement which resulted in a dismissal of the counts of aggravated robbery and aggravated assault, with the defendant being tried to the court on stipulated facts on the charge of felon in possession of a pistol. He was found guilty by the Hennepin County District Court and sentenced to a term of 0 to 5 years. This conviction was set aside by the court in September 1977, on a petition for post-conviction relief, on the ground that defendant had not properly waived his right to a jury trial. The State subsequently moved to reinstate the previously dismissed counts of aggravated robbery and aggravated assault, which motion was granted. The County Attorney offered to again dismiss the counts of aggravated robbery and aggravated assault if the defendant would either plead guilty to the charge of felon in possession of a pistol or agree to have it tried to a court on stipulated facts. Defendant rejected the offer and was convicted by the jury on two of the three counts and sentenced on one of them.

Defendant argues that the reinstatement of the two charges after his successful appeal in effect penalized him for exercising his constitutional right to a jury trial. He relies on Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), to support his position.

The United States Supreme Court in North Carolina v. Pearce held that whenever a judge imposes a more severe sentence on a defendant after a new trial conducted because his previous conviction was set aside, due process requires that reasons for the more severe sentence must affirmatively appear, based on objective information in the record. Otherwise, the defendant's fear of retaliatory motivation on the part of the sentencing judge might chill his right to appeal.

In Blackledge v. Perry, the defendant exercised his statutory right to a trial de novo after conviction of a misdemeanor in a lower court. After filing his notice of appeal, but before the trial de novo, the prosecutor obtained an indictment charging the defendant with a felony based on the same conduct which underlay the misdemeanor charge. The court held that due process requires that a person convicted of an offense is entitled to pursue his statutory right to a trial de novo without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration. 417 U.S. at 28, 94 S.Ct. at 2102. The court noted, however, that due process is not violated wherever increased punishment is a possibility upon retrial after appeal, but only where there is a "realistic likelihood of `vindictiveness,'"² such as in the case that was before the court. 417 U.S. at 27, 94 S.Ct. at 2102.

These cases make clear that a defendant may not be given a greater sentence after retrial on the same charges, where the possibility of vindictiveness is strong. In the instant case, however, there is little possibility of vindictiveness. The prosecutor did not file new, more serious charges after the appeal; he reinstated the charges from the original complaint. Moreover, he offered the defendant the same "deal" before the second trial as he had before the first trial, but the defendant refused the offer.

The State relies on several federal cases holding that no due process violation occurs when the state reinstates counts after defendant's guilty plea is set aside or withdrawn by the defendant, which counts were previously dismissed pursuant to the guilty plea. Those cases rely on the "possibility of vindictiveness" test and hold that there can be no appearance of vindictiveness under these circumstances because after the guilty plea is set aside and the original counts reinstated, the State and the defendant are placed in the same positions they were in before the plea bargain was accepted. See Chapman v. Estelle, 593 F.2d 687 (5th Cir. 1979); United States v. Osborne, 591 F.2d 413 (8th Cir. 1978), cert. denied, 440 U.S. 973, 99 S.Ct. 1539, 59 L.Ed.2d 791 (1979); United States v. Johnson, 537 F.2d 1170 (4th Cir. 1976); United States v. Anderson, 514 F.2d 583 (7th Cir. 1975); Arechiga v. Texas, 469 F.2d 646 (5th Cir. 1972), cert. denied, 414 U.S. 932, 94 S.Ct. 236, 38 L.Ed.2d 162 (1973); United States v. Rines, 453 F.2d 878 (3rd Cir. 1971); United States ex rel. Williams v. McMann, 436 F.2d 103 (2d Cir. 1970), cert. denied, 402 U.S. 914, 91 S.Ct. 1396, 28 L.Ed.2d 656 (1971); Sefcheck v. Brewer, 301 F.Supp. 793 (S.D.Iowa 1969). These decisions establish a distinction between defendants who were convicted and received a greater sentence for the same offense on retrial and those defendants who pled guilty, withdrew their plea, and received a greater sentence on conviction for the more serious charges originally brought.³

This distinction is also present in the few Minnesota cases dealing with the same issue. In State v. Holmes, 281 Minn. 294, 161 N.W.2d 650 (1968), this court held that the imposition of a longer sentence after a new trial and second conviction for the same offense was a violation of public policy.⁴ In Beltowski v. State, 289 Minn. 215, 183 N.W.2d 563 (1971), the defendant was charged with burglary, permitted to plead guilty to a lesser included offense, and was sentenced. Later, after the defendant successfully moved to withdraw his guilty plea, the original charge was reinstated. On conviction, defendant received a greater sentence than for the lesser charge, which he claimed violated due process. This court disagreed, stating:

Here petitioner, permitted as he was to be relieved from the consequences of his plea agreement, now insists that the prosecution be held to the sentence for the lesser charge for which he successfully negotiated. To do so would permit a defendant to use his plea of guilty as a tactical device to limit the charge which could be brought against him. This is not a case where a greater charge was reinstated or increased punishment imposed after a reversal of a conviction on appeal. State v. Holmes, 281 Minn. 294, 161 N.W.2d 650. Nor is there any evidence that the 10-year sentence resulted from any vindictiveness on the part of the sentencing court because petitioner was afforded his election to stand trial. It is simply a case where petitioner refused to be bound by his plea agreement, thereby justifying the court in reinstating the original charge so as to place the parties in the positions which existed prior to the plea agreement.

289 Minn. at 220, 183 N.W.2d at 566. See also State v. Ackerley, 296 Minn. 495, 207 N.W.2d 272 (1973), where we held that the Holmes rule did not apply to limit defendant's final sentence where the State offered a limited sentence in exchange for a plea of guilty but the defendant declined the offer, went to trial, and was convicted.

The defendant here did not receive a greater sentence after retrial on the same offense, nor did the prosecutor substitute, after reversal on appeal, more serious charges than were originally brought. The State merely reinstated the charges from the original complaint and offered the defendant the same deal he had been offered before the first trial. Defendant, in effect, accepted a plea bargain which was set aside by his appeal, thereby returning the parties to their original positions. We can find no indication of judicial or prosecutorial vindictiveness on the record before us, and therefore we find no due process violation.

2. Defendant further contends that the reinstatement of the two charges on retrial after his successful appeal violates Minn.Stat. § 609.035 (1978). That statute provides:

Except as provided in section 609.585 burglary, if a person\'s conduct constitutes more than one offense under the laws of this state h

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