People v. Payne

191 N.W.2d 375, 386 Mich. 84, 1971 Mich. LEXIS 135

• Court: Michigan Supreme Court
• Decided: November 9, 1971
• Docket: 33 October Term 1970, Docket No. 52,618-1/2
• Status: Published

Opinions

T. M. Kavanagh, C. J.

Defendant-appellant Leroy Payne was convicted in the Berrien County Circuit Court, by his guilty plea, of assault with intent to murder.¹ On March 8, 1963, he was sentenced by the Honorable Philip A. Hadsell to a minimum of 19 years and a maximum of 40 years in prison. At the conclusion of a hearing subsequently ordered by the Court of Appeals, Payne’s guilty plea and a prior confession were determined to have been involuntary and his conviction and sentence were vacated. Motion for a change of venue was granted to Kent County. Payne was reconvicted of assault with intent to murder by a jury in Kent County Circuit Court. Upon remand to Berrien County, the Honorable Chester J. Byrns, Berrien County circuit judge, who had presided over Payne’s Kent County trial, sentenced him to prison for a term of 25 to 50 years with credit for time served and “good time” earned.

The following excerpt from the transcript of' appellant Payne’s second sentencing is pertinent to his claim, hereinafter discussed, that the sentence imposed was excessive:

"The Court: * * * Mr. Payne, in presiding over your three day trial, I want to tell you that without any reservation, I agreed with the jury’s verdict of guilty. I heard your own testimony and I heard your cross-examination, and of course I had an ample opportunity of hearing about your crime which was one of extreme violence. It was senseless ; it was cruel, and frankly, I think it reflected a depravity of heart and but not for the grace of God, and the good physical condition of Victor Yost, he survived. He was shot not once, not twice, but three times. Mr. Yost has suffered and is still suffering from the near fatal wounds that you inflicted. You were there when the doctor’s testimony reflected that it took some three to four hours spent in surgery trying to save this man’s life. Mr. Yost is a hrave and able officer and is to be complimented for the excellent and fair manner in which he testified at your trial. And a police officer, whether he may be popular with someone or not is nevertheless a symbol of authority and whoever shoots a police officer in line of duty assaults not only the officer; not only the man, but he assaults all of society because law and order cannot exist unless our officers have the respect and the protection to which they are entitled to. These are precious rights of citizenship which you and I recognize and which would not exist if it were not for officers like Victor Yost who are willing not only to work, but even to die to preserve these rights.

“Assault with intent to murder, especially when a gun is used, is a most serious crime when the victim is a police officer in line of duty. I have felt since I have been judge that crimes of violence are the worst, and I have felt that the use of weapons shows a willfullness and a hatred of which we have too much of in our society today.

“When you appeal, and win a new trial, you wipe clean the previous conviction and sentence. You have then a presumption of innocence which I think the record will bear out and of which I maintain I protected throughout your trial and which your attorney was most zealous in insuring. This Court is no longer bound by the earlier sentence. I cite an authority, Mr. Reporter, People versus Poole, P-O-O-L-E, 7 Michigan, Appellate 291 [sic].

“In your trial, you might have been acquitted and set free and you also risked a larger sentence with a different judge and this is a different judge between your sentence of five and one-half years ago and today; a judge who had a more detailed account of what you did during this new trial than the judge who sentenced you on a plea of guilty and did not have the same opportunity to form impressions nor did my distinguished colleague hear all of the details as it came out in this particular trial. .

“I am not setting a larger sentence than what I will set in a few mimites because you appealed or because of any added work or expense of a new trial. This I assure you, and every American citizen has an absolute right to an appeal and to redress. As citizens, they are entitled to use the protection and rights that the law gives them and I would like to think that no judge will be more careful than I to insure this which we reward no man because he pleads guilty and we punish no man because he pleads innocent. The larger sentence which 1 impose here is based on the nature of the crime and on the impressions which I formed of you and of the crime for the three days of the trial and what I honestly believe your crime showed of your character and attitude. Now, I had considered a mandatory life sentence because the maximum term of imprisonment here could be any term of years up to life imprisonment. The only reason that I am not doing this is that I am looking into your past history and I have given this searching thought right up to the very last moment. You have a very poor family .background for which you are not to blame, Mr. Payne. Your school reports were good and you served approximately three years in the Army and you earned an honorable discharge while in service although I believe there was a court-martial—wasn’t there, Mr. Payne?

“The Respondent: It was just a minor matter. It wasn’t what you would call a court-martial—

“The Court: Administrative—company punishment?

“The Respondent: Yes, sir.

“The Court: But you did receive an honorable discharge?

“The Respondent: Yes, sir.

“The Court: And by your own efforts, you completed high school and the employers you had all said that you were a good employee. I have also checked at the prison where you have been and your conduct there is reported as good during the past four years and some odd months that you have been there and that you have been using the educational and rehabilitation facilities that are available.

“These are the factors which I have considered on the good side of the ledger which have frankly saved you from a sentence of life imprisonment.” (Transcript of sentence, pp 4-9.) (Emphasis added.)

The Court of Appeals affirmed (Quinn, P. J. and Holbrook, J.; T. M. Burns, J., dissenting). 18 Mich App 42. Appellant is here on leave granted. 383 Mich 760.

The questions of the propriety and constitutionality of imposing a harsher sentence after a defendant has overturned his conviction on appeal and been reconvicted have long divided American courts. Annotation, 12 ALR3d 978; Van Alstyne, In Gideon’s Wake: Harsher Penalties and the “Successful” Criminal Appellant, 74 Yale L J 606 (1965); Comment, 28 Md L Rev 64 (1968). This Court recently considered the problem in People v. Olary (1969), 382 Mich 559. In upholding a harsher penalty upon reconviction, the Olary majority distinguished the case of North Carolina v. Pearce³ [Simpson y. Bice] (1969), 395 US 711 (89 S Ct 2072, 23 L Ed 2d 656), hereinafter discussed, on the grounds that defendant Olary’s

“original sentence was imposed by a justice of the peace, not required to be legally trained, and the second sentence was by a circuit judge, a duly licensed lawyer, after report to him, as provided by statute, by the probation officer as to defendant’s background, record and attitude, to enable the circuit judge to fit the punishment to the offenders.” (Olary, supra, at 567.)

Further distinguishing Pearce, supra, the Court noted that Mr. Olary’s second conviction and resentencing were not occasioned by his having demonstrated to a superior tribunal that his original conviction was tainted with constitutional error but by his decision to assert his right to a trial de novo in the circuit court.* **⁴

Assuming Pearce, supra, was properly distinguished in Olary, supra, we do not think the present case is distinguishable because unlike Olary this case involves a felony conviction, a reversal by way of appeal because of constitutional error, and disparate sentences, imposed by judges of the same level and court, both of whom were provided with the statutory presentencing reports.⁵ *8We, therefore, proceed, to consider appellant Payne’s contention that the imposition of a harsher sentence following his successful appearand reconviction was violative of the Fourteenth Amendment due process standards and procedures laid down in North Carolina v. Pearce, supra⁶

In Pearce the United States Supreme Court held, inter alia, that neither the Equal Protection Clause of the . Fourteenth Amendment nor the Double Jeopardy Clause of the Fifth Amendment imposes an absolute bar to a more severe sentence upon reconviction. But the Court further held that the Due Process Clause of the Fourteenth Amendment requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the second sentence he receives; and the defendant must be freed of the apprehension of such retaliatory motivation on the part of the sentencing judge. Resolution of the Federal constitutional question raised by appellant Payne requires interpretation and application of the following language from Pearce, supra:

“A trial judge is not constitutionally precluded * * # froin imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant’s ‘life, health, habits, conduct, and mental and moral propensities.’ Williams v. New York [1949], 337 US 241, 245 [69 S Ct 1079, 93 L Ed 1337]. Such information may come to the judge’s attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant’s prison record, or possibly from other sources. The freedom of a sentencing judge to consider the defendant’s conduct subsequent to the first conviction in imposing a new sentence is no more than consonant with the principle, fully approved in Williams v. New York, supra, that a State may adopt the ‘prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime.’ Id., at 247.” (At p 723.)

*•& 4Í. w w

“In order to assure the absence of such a motivation [i.e., vindictiveness], 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.” (At p 726.)

The above language raises the following question: May the judge who imposes a harsher sentence upon reconviction rely on information not possessed by the first judge regarding defendant’s conduct prior to the time of his first sentencing? If not, the sentence imposed by Judge Byrns was excessive because it appears his only knowledge of Payne’s conduct after the first sentencing was that he had earned “good time” while in prison and had been taking advantage of prison educational and rehabilitation facilities. Judge Byrns stated, supra, that he based his decision to impose a stiffer sentence on impressions of Payne and his crime formed during the trial.

The question arises primarily because of ambiguous language in the following sentence from Pearce, supra, quoted earlier:

“Those reasons [for imposing a harsher penalty] must be based upon objective information concerning identifiable conduct on tbe part of the defendant occurring after the time of the original sentencing proceeding.” (At p 726.)

Does “occurring after * # the original sentencing” refer to defendant’s “identifiable conduct” or to acquisition of “objective information” regarding his conduct before or after original sentencing? Since Pearce was decided, lower courts have split over interpretation of the above language. Some opinions hold that only conduct of the defendant occurring after his original sentencing may be relied upon by the sentencing judge who imposes a harsher penalty. See, e.g., Barnes v. United States (1969), 136 App DC 171 (419 F2d 753) (dissenting opinion); Torrance v. Henry (EDNC, 1969), 304 F Supp 725; Pinkard v. Neil (MD Tenn, 1970), 311 F Supp 711; Walsh v. Commonwealth (1970), 358 Mass 193 (260 NE2d 911) (dictum at 916). Others hold or indicate that regardless of when the defendant’s “identifiable conduct” occurred, if it first comes to a sentencing judge’s attention after the time of the first sentencing it may be relied upon in support of a harsher penalty. See, e.g., United States v. Kienlen (CA 10, 1969), 415 F2d 557; United States v. Gross (CA 8, 1969), 416 F2d 1205; United States v. Barash (CA 2, 1970), 428 F2d 328.

The conflicting interpretations of the Pearce requirements were not resolved by the opinion of the United States Supreme Court accompanying its dismissal of a writ of certiorari in Moon v. Maryland (1970) 398 US 319 (90 S Ct 1730, 26 L Ed 2d 262). Certiorari had been granted to consider whether Pearce, supra, should be applied retroactively. In dismissing the writ as improvidently granted the Court said:

“As an appendix to its brief, the respondent has filed an affidavit of the judge who presided at the second trial, setting out in detail the reasons he imposed the 20-year prison sentence. Those reasons clearly include ‘objective information concerning identifiable conduct on the part of the defendant occurring- after the time of the original sentencing proceeding.’” (At p 320.)

We have obtained a copy of the referenced trial judge’s affidavit. Unfortunately, for our purposes, the Maryland judge who resentenced Mr. Moon considered conduct which occurred after the first sentencing. Therefore, Moon doesn’t tell us whether Pearce allows a harsher sentence even though there is no (known) conduct of the defendant occurring after the first sentencing which would support a stiffer sentence.1 *****⁷

Pending clarification of Pearce’s requirements by the United States Supreme Court, we are persuaded that those courts are correct which have interpreted Pearce to require that the “identifiable conduct” of the defendant upon which a resentencing judge relies in imposing a stiffer sentence must have occurred after the first sentencing.⁸ That the Pearce Court intended this result is evidenced by Mr. Justice White’s one sentence opinion advocating the opposite result:

“I join the Court’s opinion except that in my view Part II-C [standards and procedures governing harsher sentence upon reconviction] should authorize an increased sentence on retrial based on any objective, identifiable factual data not known to the trial judge at the time of the original sentencing proceeding.” (Pearce, supra, at p 751.)

Furthermore, our interpretation is in accord with the grammar of the ambiguous Pearce language. “Information” does not “occur,” it is obtained. “Conduct” “occurs.”

We conclude, and hold, that the imposition of a harsher sentence upon reconviction following appellant Payne’s successful appeal was constitutionally impermissible because the record of the second sentencing does not disclose “objective information concerning identifiable conduct on the part of the defendant occurring’ after the time of the original sentencing proceeding.” (Pearce, supra, at p 726.)

Our disposition of the above discussed issue renders unnecessary consideration of appellant Payne’s contention that the possibility of a harsher sentence upon reconviction unduly chills the exercise of the right to appeal one’s conviction granted by the Michigan Constitution of 1963, art 1, § 20.⁹ We have carefully examined appellant Payne’s other allegations of error and find them to be without merit.

Since this opinion was written, the case has been reheard and the records supplemented by additional statements by the trial judge. Nothing new, disposition-wise, has been added. The result remains the same.

The case is reversed and remanded to the Berrien County Circuit Court for resentencing in accordance with this opinion.

T. G. Kavanagh, Swainson, and Williams, JJ., concurred with T. M. Kavanagh, C. J.

1 MOT,A § 750.83 (Stat Ann 1962 Rev § 28.278). The crime is punishable by imprisonment for life or any number of years.

3 The United States Supreme Court has not yet decided whether Pearce is to be applied retroactively. Although the Court twice granted certiorari to consider the question, in each case the writ was subsequently dismissed as improvidently granted. Moon v. Maryland, cert granted (1969), 395 US 975 (89 S Ct 2135, 23 L Ed 2d 764), writ dismissed (1970), 398 US 319 (90 S Ct 1730, 26 L Ed 2d 262); Odom v. United States, cert granted (1970), 399 US 904 (90 S Ct 2203, 26 L Ed 2d 559), writ dismissed (1970), 400 US 23 (91 S Ct 112, 27 L Ed 2d 122). We decline to predict the high Court’s answer to the question of Pearce’s retroactive or prospective application, but we will apply Pearce in the present ease in order to instruct our trial courts as to the Michigan interpretation of an ambiguous portion of Pearce, discussed infra, pending clarification by the United States Supreme Court.

4 It is noteworthy that Olary, supra, involved a misdemeanor. While all criminal defendants are entitled to due process of law, our Constitutions require stricter standards and procedures in many respects when the offense charged is serious and threatens the defendant with more severe punishment. See, e.g., Duncan v. Louisiana (1968), 391 US 145 (88 S Ct 1444, 20 L Ed 2d 491), rehearing den 392 US 947 (88 S Ct 2270, 20 L Ed 2d 1412). But see Wood v. Ross (CA4, 1970), 434 F2d 297, involving harsher sentence on appeal and de novo trial in circuit court, than that imposed in justice court.

5 Nor is the present case distinguishable from Pearce, supra, because Mr. Payne’s original conviction was by guilty plea, that is, because only the second sentencing judge had the opportunity to gain impressions of Mr. Payne and his crime throughout a trial. In Pearce’s companion case, Simpson v. Rice, Mr. Simpson’s original convictions were by guilty plea; he was subsequently reconvicted by a jury, whereupon he received a stiffer sentence. Whatever our own views are, we cannot ignore the fact that the United States Supreme Court did not find this difference between Simpson (one trial) and Pearce (two trials) worthy of distinguishing note. The holding of the Court as regards harsher sentence upon reconviction applied fully to both cases.

6 My Brother Black asserts, infra, p 106, that Pearce is “doubtful faird” that is, lacking in precedential force, because Mr. Justice Stewart’s opinion for the Court failed to gain the unreserved endorsement of at least five Justices. The following quotations from two of Pearce’s concurring opinions demonstrate that the signers thereof declined to give Mr. Justice Stewart’s opinion their unreserved endorsement primarily because they would go further to declare that the United States Constitution absolutely forbids the imposition of a harsher sentence upon reconvietion:

“Although I agree with the Court as to the reach of due process, I would go further. It is my view that if for any reason a new trial is granted and there is a conviction a second time, the second penalty imposed cannot exceed the first penalty, if respect is had for the guarantee against double jeopardy.” (Opinion of Mr. Justice Douglas, joined by Mr. Justice Marshall, at pp 726, 727. Emphasis added.)

“Were these cases to be judged entirely within the traditional confines of the Due Process Clause of the Fourteenth Amendment, I should, but not without some difficulty, find myself in substantial agreement with the result reached by the Court. However, the Court today, in Benton v. Maryland [(1969), 395 US 784 (89 S Ct 2056, 23 L Ed 2d 707)] * * * has held, over my dissent, that the Double Jeopardy Clause of the Fifth Amendment is made applicable to the States by the Fourteenth Amendment Due Process Clause. * * *

“Given Benton, it is my view that the decision of this Court in Green v. United States, 355 US 184 (1957) [78 S Ct 221, 2 L Ed 2d 199], from which I dissented at the time, points strongly to the conclusion, also reached by my Brother Douglas * * * that the Double Jeopardy Clause of the Fifth Amendment governs both issues presently decided by the Court. * * *

“I therefore conclude that, consistent with the Fifth Amendment, a defendant who has once been convicted and sentenced to a particular punishment may not on retrial be placed again in jeopardy of receiving a greater punishment than was first imposed.” (Opinion of Mr. Justice Harlan, beginning at p 744. Emphasis partly in original, partly supplied by the present writer.)

Thus the holdings of six of the eight Justices who sat in Pearce firmly support the position we take in the present case. Since three of the Justices who declined to sign Mr. Justice Stewart’s Pearce opinion think the United States Constitution absolutely forbids imposition of a harsher sentence upon reconviction, the present opinion can hardly be said to “outrun” the United States Supreme Court. See Justice Black’s opinion, infra, p 111.

7 Similarly, the per curiam opinion accompanying dismissal of the writ of Odom v. United States, supra, does not answer our question. The opinion gives as the reason for dismissing the writ as improvidently granted that the order of the district court denying Mr. Odom’s motion to set aside his second sentence “makes it clear that the greater severity of the second sentence was based on conduct on the part of the petitioner occurring after the time of the original sentencing proceeding, and that the new information was specifically referred to at resentencing.” (Odom, supra, at p 112.)

8 Justice Black’s assertion, infra, p 106, that no Justice dissented from Justice Dethmers’ contrary handling of Pearce in Olary is misleading for two reasons. First, the two Olary dissenters did not reach the Pearce issue. Second, since Justice Dethmers first took great pains to distinguish Pearce in Olary, his subsequent interpretation of Pearce’s requirements was clearly dicta and not controlling here.

9 See Judge T. M. Burns’ dissenting opinion below. 18 Mich App 42, 46.