People v. Mazzie

413 N.W.2d 1, 429 Mich. 29

• Court: Michigan Supreme Court
• Decided: September 22, 1987
• Docket: Docket Nos. 75276, 75493, (Calendar Nos. 2-3)
• Status: Published

Opinions

Brickley, J.

While we agree with Justice Boyle that the presumption of vindictiveness as applied in People v Payne, 386 Mich 84; 191 NW2d 375 (1971), goes beyond the protections necessary to sustain a defendant’s due process rights, we cannot agree with the degree to which Justice Boyle would narrow that protection.

Under our present framework of indeterminate sentencing, sentences are based more on an assessment of the offender than the offense. A natural and unavoidable result of this sentencing scheme, leaving as it does wide discretion to the trial judge, is that the length of a defendant’s sentence rests in part upon the perceptions, experience, and judgment of the individual judge before whom he is tried. Were the wisdom of this scheme before us, we might question its fairness and capacity for deterrence. However, since it is not, our views on the question of the vindictiveness in resentencing must be defined in the context of our present system.

We agree with Justice Boyle that where a second sentence is imposed by a judge other than the judge who imposed the original sentence, we should not invoke a presumption of vindictiveness. Were we to do so, we would be denying the fundamental realities of the above-described system. Different judges may perceive the same information differently, and to invoke a presumption of vindictiveness because of the fortuitous circumstances of facing one judge or another would make all sentences constitutionally suspect. Thus, we agree with the result she would reach in People v Mazzie, since the two sentences in that case were imposed by different judges.

The circumstances are quite different, however, where the same judge imposes both the original sentence and the sentence after retrial. Justice Boyle, citing guidance from the United States Supreme Court, would hold that where the trial judge himself, rather than an appellate court, orders the retrial, an increased sentence does not give rise to a reasonable likelihood of vindictiveness. We respectfully disagree.

It is no doubt true, as the United States Supreme Court observed in Texas v McCullough, 475 US 134; 106 S Ct 976; 89 L Ed 2d 104 (1986), that where a judge orders a retrial he expresses agreement that the defendant’s "claims” have merit. However, by ordering a retrial, the judge expresses his approval only of the claims, usually of procedural error, upon which the grant of retrial is based. By granting a retrial, the judge does not necessarily express a belief that the once-convicted defendant is innocent of the crime charged, that a retrial will result in a different verdict, or that the court’s time will be put to good use by retrying the defendant. It is, in addition, only natural that trial judges prefer to correct their own errors rather than to have them corrected by an appellate court, and we think that a tendency towards vindictiveness could appear in the former setting as often as in the latter. The problem was bluntly described by Justice Marshall:

The mere grant of a new trial motion can in no way be considered a guarantee, or even an indication, that the judge will harbor no resentment toward defendant as a result of his decision to exercise his statutory right to make such a motion. Even where a trial judge believes that the assignments of error are valid, she may still resent being given a choice between publicly conceding such errors and waiting for her judgment to be put to the test on appeal. This will be especially true when the errors alleged, however substantial as a matter of constitutional or statutory law, are considered by the judge not to cast doubt on the defendant’s guilt. In such a case, the judge might well come to defendant’s sentencing annoyed at having been forced to sit through a trial whose result was a foregone conclusion, and quite ready to vent that annoyance by giving the defendant a sentence stiffer than he otherwise would have received. Even if a trial judge is confident that her conduct of a trial was error-free, she may still grant a new trial if she has any doubts as to whether the courts reviewing her ruling will agree. In this situation, the feelings of resentment already alluded to might be augmented by the judge’s annoyance with the courts that review her judgments. [Texas v McCullough, supra, 150-151 (Marshall, J., dissenting).]

Since both sentences in Spangler were imposed by the same judge, we apply the presumption of vindictiveness. As long as there is such a presumption where the same judge resentences and increases the sentence, we fail to see a distinction where the necessity to resentence is occasioned by that judge rather than by a higher tribunal.

So applied, the question arises in Spangler whether the presumption was overcome in light of the reasons enunciated by the trial judge at resentencing. We believe Justice Boyle is correct in urging adoption of the United States Supreme Court’s view, as stated in McCullough, that the presumption may be overcome where the judge at resentencing possessed information which was unavailable to him at the initial sentencing, even where that information does not concern conduct of the defendant occurring after the first trial.¹ The new data referred to by the judge at Spangler’s resentencing were defendant’s apparent commission of perjury, the fact that such perjury contained allegations of misconduct by a police officer, and the fact that defendant had committed the crime in spite of his ability to earn a substantial income.

We agree with Justice Boyle’s view that perjury, like so many other subjective factors may, within the framework of our present sentencing scheme, be considered by the sentencing judge. Nevertheless, we cannot agree with her disposition of Spangler and remand the case for resentencing. Justice Boyle’s approach would permit a judge to vindictively increase a sentence, but nevertheless overcome the presumption by making reference to a new piece of information regarding the defendant no matter how minor that information or how little relevance it might have in determining a fair and appropriate sentence. Instead the presumption of vindictiveness may be overcome only when the extent of the increase in the sentence bears a reasonable relationship to the new information.

Certainly, appellate courts need not second-guess every increased sentence justified by new information. However, in Spangler, the judge was fully apprised of the nature and circumstances of the crime when he first imposed sentence after defendant pled guilty. The only new information to which the judge referred at the resentencing was, as just stated, his "impression” that defendant had perjured himself, the accusations made in the course of that perjury, and the fact that defendant committed the crime in spite of his earning capacity.² This data would, according to Justice Boyle, be sufficient to justify a thirty-five year, i.e., one hundred percent increase in defendant’s minimum sentence for first-degree criminal sexual conduct and an increase from thirty-five years to life as the minimum sentence for armed robbery. These increases do not, in our view, bear a reasonable relationship to the new information. We, therefore, hold that the presumption of vindictiveness was not overcome in Spangler and remand the case for resentencing in accordance with the principle herein defined.

Archer, J., concurred with Brickley, J. Levin and Cavanagh, JJ. Proceeding arguendo on the premise that perjury may be considered by the sentencing judge, we concur in Justice Brickley’s opinion._

1 In Payne, we stated that our view as to what information could serve to overcome the presumption of vindictiveness was subject to change if we were supplied with "clarification ... by the United States Supreme Court . . . .” Id. at 96. Justice Boyle correctly notes that McCullough provides such clarification. However, she also seems to indicate that our wait for clarification went to all aspects of the Payne decision. In fact, we did not seek "clarification” in Payne as to when the presumption should be applied.

2 Justice Boyle claims that the testimony of the victim provided new information as to the seriousness of the crime. The testimony does indeed recount the commission of a heinous crime. However, the trial judge did not, at resentencing, refer to that testimony. While the judge did refer in general to the cruelty of the crime, the reference did not go beyond the judge’s statement at the original sentencing that defendant is "one of the most vicious persons that have come before me . . . .” In addition, the length of the original sentence, thirty-five years, indicates that the judge was indeed aware at that time of the details of the crime.

It is, of course, possible that the judge did have the victim’s testimony in mind when he increased the sentence. However, appellate review would be meaningless if we were to presume that any new material raised during the second proceeding must have been the basis for the sentence increase. Therefore trial judges, when resentencing defendants, must state on the record upon what new information they are basing any increase in the length of the sentence. Since in this case the trial judge did not state that the victim’s testimony led him to increase the sentence, we do not believe we should consider that testimony as relevant to our review of the sentence increase.