U.S. ex rel. Welch v. Lane

• Decision Date: 05 July 1984
• Docket Number: No. 83-2595,83-2595
• Citation: 738 F.2d 863
• Parties: UNITED STATES of America, ex rel., Vance WELCH, Petitioner-Appellee, v. Michael LANE, Director, Illinois Department of Corrections, & Kenneth McGinnis, Warden, Pontiac Correctional Center, Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 863

738 F.2d 863

UNITED STATES of America, ex rel., Vance WELCH, Petitioner-Appellee, v. Michael LANE, Director, Illinois Department of Corrections,

& Kenneth McGinnis, Warden, Pontiac Correctional

Center, Respondents-Appellants.

No. 83-2595.

United States Court of Appeals, Seventh Circuit.

Argued March 28, 1984.

Decided July 5, 1984.

Michael V. Accettura, Asst. Atty. Gen., Chicago, Ill., for respondents-appellants.

Gordon H. Berry, Asst. State Appellate Defender, Chicago, Ill., for petitioner-appellee.

Before WOOD, CUDAHY and FLAUM, Circuit Judges.

CUDAHY, Circuit Judge.

The district court granted a petition for a writ of habeas corpus requiring resentencing because petitioner's due process rights were violated when he was sentenced on the basis of substantially inaccurate information. See United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948); United States v. Harris, 558 F.2d 366, 373 (7th Cir.1977). For the following reasons, we affirm.

I

Petitioner Vance Welch and two codefendants were convicted in state court of aggravated kidnapping, rape and deviate sexual assault. Petitioner's codefendants had kidnapped the victim at gunpoint in Ohio, driven her to Chicago and sexually assaulted her. Petitioner later joined the codefendants in further sexual assaults and attempts to force the victim to prostitute herself for the defendants' profit.

At the joint sentencing hearing, the two codefendants were each sentenced to twenty years imprisonment. Both were younger than petitioner and had less serious criminal records than he. The court then turned to petitioner's case. As is customary, the sentencing judge, who had presided at trial, had before him information about petitioner's prior criminal record. Petitioner had been indicted for armed robbery in 1973 and pled guilty to a charge of robbery in 1976. While on probation for the robbery, petitioner was convicted of unlawful use of weapons. Petitioner was on parole from the sentence in the weapons case when he committed the offenses here. The prosecutor asked for a thirty year sentence.

Although the prosecutor told the court quite clearly that petitioner had been convicted of robbery in 1976, the sentencing judge said that petitioner had been convicted of armed robbery, a Class X offense under Illinois law. The judge sentenced petitioner to the maximum allowable term of thirty years on each count. (The sentences on the three counts were to run concurrently.) In explaining his decision, the judge said:

The Court is constrain[ed] to comment again on the evidence here. The jury found the defendant guilty of three Class X offenses and a significant factor in the Court's determination of the sentence here is that this defendant has within the past ten years been convicted of the offense of armed robbery which is an offense of the same magnitude, namely, a Class X offense as the rape, aggravated kidnapping and deviate sexual assault cases of which he is now convicted.

Record 19 at 51. On appeal, petitioner argued that the judge had erred when he sentenced him on the basis of an erroneous view of petitioner's criminal record. The Illinois Appellate Court rejected the argument in an unpublished decision, and the Illinois Supreme Court denied leave to appeal.

Petitioner then sought relief in the federal district court. The district court concluded that petitioner was sentenced on the basis of false information in violation of his due process rights. The court granted summary judgment for petitioner and ordered respondents to release him if he were not resentenced within ninety days. The court then stayed the order pending this appeal. We have jurisdiction under 28 U.S.C. Secs. 1291 and 2253. Petitioner has clearly exhausted his claim in the state courts, and there is no issue of waiver here. ¹

II

The Supreme Court has held that convicted defendants have a due process right to be sentenced on the basis of accurate information. United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948). The foundation of that right is due process protection against arbitrary government decisions. A convicted offender does not have a constitutional right to a particular sentence available within a range of alternatives, but the offender does have a right to a fair sentencing process --one in which the court goes through a rational procedure of selecting a sentence based on relevant considerations and accurate information. As the Supreme Court explained in Townsend v. Burke:

It is not the duration or severity of this sentence that renders it constitutionally invalid; it is the careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process.

334 U.S. at 741, 68 S.Ct. at 1255. In United States v. Tucker, the Supreme Court reinforced this right to accuracy. There the defendant had been sentenced in part on the basis of a prior conviction which was later found to be unconstitutional because the defendant had not been represented by counsel. The Supreme Court affirmed the court of appeals decision vacating the sentence:

For we deal here, not with a sentence imposed in the informed discretion of a trial judge, but with a sentence founded at least in part upon misinformation of constitutional magnitude. As in Townsend v. Burke, 334 U.S. 736 [68 S.Ct. 1252, 92 L.Ed. 1690], "this prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue." Id. at 741, 68 S.Ct. at 1255.

404 U.S. at 446, 92 S.Ct. at 591. Of course, because a constitutional right is at stake, relief is available through a petition for a writ of habeas corpus. Cook v. Gray, 530 F.2d 133 (7th Cir.), cert. denied, 425 U.S. 980, 96 S.Ct. 2187, 48 L.Ed.2d 806 (1976). See also People v. La Pointe, 88 Ill.2d 482, 59 Ill.Dec. 59, 64-65, 431 N.E.2d 344, 349-51 (1981) (due process prohibits consideration of inaccurate information); People v. Meeks, 81 Ill.2d 524, 44 Ill.Dec. 103, 109, 411 N.E.2d 9, 15 (1980) (sentencing information must be accurate and reliable).

Under Townsend and Tucker, a sentence must be set aside where the defendant can show that false information was part of the basis for the sentence. The two elements of that showing are, first, that information before the sentencing court was inaccurate, and second, that the sentencing court relied on the misinformation in passing sentence.

In the case before us, petitioner has had little difficulty in establishing the first element. The sentencing judge thought that petitioner had been convicted several years earlier of armed robbery. In fact, the conviction was only for robbery. ² These facts are a matter of public record, and respondents agree that the sentencing judge was incorrect. ³

However, respondents deny that the sentencing court relied on the mistaken information in sentencing the petitioner. We must therefore review the state court record in this case to determine whether the court gave the misinformation "specific consideration," so that the information formed part of the basis for the sentence. See United States v. Hubbard, 618 F.2d 422, 425 (7th Cir.1979). Such a review can often be a very difficult task, for the sentencing decision may depend on a wide array of factors, and the sentencing court need not explain its decision in detail. United States v. Harris, supra, 558 F.2d at 374-75. The decisions of this court reflect the difficulty of this form of review. See, e.g., United States v. Plisek, 657 F.2d 920, 926-28 and n. 8 (7th Cir.1981) (majority finds no "undue reliance" on murder charge of which defendant was acquitted); id. at 930 (Swygert, J., dissenting) (court improperly relied on its independent evaluation of murder charges); United States v. Harris, supra, 558 F.2d at 374-75 (sentencing court relied on damaging hearsay-on-hearsay allegations where presentence report was favorable and maximum sentence was imposed). The reviewing court must examine the record to see whether the sentencing judge gave specific consideration to the questionable information. The difficult case is presented when the consideration is not explicit in the record, as in Harris, or when it is ambiguous, as in Plisek, but this is not such a case.

Here the sentencing court's reliance on the misinformation is explicit and incontrovertible. Indeed, it is difficult to imagine a case in which the court's reliance on the inaccurate information could be any clearer. The sentencing judge himself said that the supposed prior conviction for armed robbery was a "significant factor" in his decision. The judge's pronouncement of sentence and explanation of it are in full:

The Court is constrain[ed] to comment again on the evidence here. The jury found the defendant guilty of three Class X offenses and a significant factor in the Court's determination of the sentence here is that this defendant has within the past ten years been convicted of the offense of armed robbery which is an offense of the same magnitude, namely, a Class X offense as the rape, aggravated kidnapping and deviate sexual assault cases of which he is now convicted.

In addition, there is a criminal history going back to 1972 where he was given probation for an assault charge and at that time and in April of 1976 on an armed robbery charge to a plea of guilty he was given three years probation, first thirteen months, House of Correction by Judge Wendt.

Most recently in July of 1978 on a plea of guilty to unlawful use of weapons before Judge Sklowski he was sentenced to Joliet Penitentiary for a term of three years.

Again, at the time of the occurrence for which...