Santiago Mercado v. Jones

74 P.R. 578

• Court: Supreme Court of Puerto Rico
• Decided: April 17, 1953
• Docket: No. 589
• Status: Published

Opinions

Mr. Justice Belaval

delivered the opinion of the Court.

Petitioner herein Acasio Santiago Mercado asks us to set aside a sentence of imprisonment in the penitentiary at hard labor imposed on him by the former District Court of Puerto Rico, Mayagiiez Section, on September 13, 1948, and to order his release from the penitentiary where he is confined by virtue of an invalid sentence. The Fiscal of this Court agrees that the judgment rendered is void and that petitioner shoud be discharged.

The essential facts for determination are the following: On July 30, 1948 the Prosecuting Attorney for the District of Mayagüez, Baldomero Freyre, filed an information against petitioner for the offense of burglary in the first degree; on September 7, 1948, the Assistant Prosecuting Attorney of the District Court of Mayagüez, Julio Fernández Cabrera, representing the People of Puerto Rico, and the defendant Acasio Santiago Mercado, assisted and represented by counsel, Ildefonso Freyre, appeared at the trial of the case where defendant was found guilty of burglary in the first degree; on September 13, 1948 the accused appeared assisted and represented by counsel Ildefonso Freyre to hear the pronouncement of sentence and according to the minutes book of the trial court, the following incidents took place:

“Upon being asked, defendant stated, through counsel, that there is no legal impediment for passing sentence on him.

“The Court asks defendant if prior to the commission of this offense, he has been sentenced (I mean) convicted, sentenced and imprisoned for any other offense; he answers affirmatively.

“Therefore, defendant is not eligible for parole and the Court sentences him to an indeterminate sentence of from three to' five years in the penitentiary at hard labor, without costs and he is entitled to have deducted any time he was in prison while awaiting this trial.

“After hearing sentence, defendant escaped and was captured by the marshals of the Court with the aid of a Penal Guard.

“Defendant is again taken to the Court and the judge reconsiders his original sentence of from three to five years in the-penitentiary at hard labor and sentences him to serve from seven to ten years’ imprisonment in the penitentiary at hard labor with the same credit for the time he was in prison while awaiting trial, without costs.”

After the corresponding appeal to this Court, which was-dismissed for lack of jurisdiction, the prisoner passed from the judicial custody, under which he remained while awaiting trial, to the executive custody, where he still is.

The legal grounds on which petitioner rests for seeking the annulment of the sentence imposed on him, are the following: (1) that the trial court had no power to recall the original sentence and impose another sentence on petitioner inasmuch as pursuant to § 44 of the Penal Code of Puerto Rico, an offender can not be exposed twice for the same offense; (2) that having the trial court originally imposed on defendant a briefer sentence, the fact that it subsequently imposed on him a severer one constituted a breach of his constitutional rights.

The essential facts and the legal grounds set up in this appeal compel us to examine four specific propositions: (1) the power of a trial judge to reconsider a sentence; ( 2) the power of a trial judge to set aside a brief sentence, and impose upon reconsideration, a severer one; (3) the possible violation of petitioner’s constitutional rights and (4) the possible error that might have been committed by the trial judge under the circumstances surrounding the passing of sentence.

(1) The power of a trial judge to reconsider a sentence within a criminal prosecution is limited by certain rules which must be clarified before reaching^ definite conclusion. The first rule is that the offender must be still under the custody of the trial court, without having undergone any part of the original sentence; the second rule is that reconsideration does not lie unless there is a mistake in the name, in the punishment imposed, or in the application of the law to the proved facts in the prosecution, which might justify the reconsideration of the original sentence; and third that certain circumstances justifying the mitigation or aggravation of the sentence must be present. Arroyo v. People, 41 P.R.R. 727 (1931); People v. Carbone, 59 P.R.R. 608 (1941); Meaders v. State, 22 S. E. 527 (1895); Nichols v. United States, 106 Fed. 672 (1901); 168 A.L.R. 706 (1945).

(2) The power of a trial judge to set aside a briefer sentence and upon recalling the accused impose on him a heavier one is essentially controlled by the constitutional clause of double jeopardy. Probably it would be convenient to illustrate when double jeopardy may occur upon the reconsideration of a sentence. Double jeopardy occurs when the sentence on reconsideration is rendered after the defendant has passed from the judicial custody to the executive in order to serve the sentence imposed on him. It is well known that from the moment that a defendant is arrested until he is sentenced, he is under the custody of the court.

Sections 327 and 330 of the Code of Criminal Procedure of Puerto Rico establish the procedure to be followed after sentence is rendered. The former provides that “When a judgment has been pronounced, a certified copy of the original thereof must be forthwith delivered to the officer whose duty it to execute the judgment, and no other warrant or authority is necessary to justify or to require its execution”; and the latter that “If the judgment is for imprisonment in the penitentiary, the proper officer of the court, must, upon receipt of a certified copy thereof, take and deliver the defendant to the warden of the penitentiary,” indicated by the executive. The power of the court ends when the prisoner passes into the custody and control of the warden of the penitentiary and this action determines the beginning of the executive custody. Miller v. Snook 15 F. (2d) 68 (1926).

(3) The rule that a trial judge has power to set aside a judgment and upon reconsideration increase- it while the defendant is still under the court’s custody, has been almost uniformly upheld by the courts Miller v. Snook, supra; De Maggio v. Coxe, 70 F. (2d) 840 (1934); Rowley v. Welch, 114 F. (2d) 499 (1940). Where the defendant is under judicial custody, any mitigation or increase of the new sentence rendered is not considered as a double jeopardy and therefore the defendant is not deprived of any constitutional right on such ground.

Does the aggravation upon reconsideration, of any sentence which was originally briefer, violate the constitutional clause of due process of law? Due process is one of those elastic formulas of substantial justice which is not susceptible of a generic definition. It is not a constant rule which by its own virtuality may be applied independently of the attendant circumstances of the case. Historically it was considered as that process most congruent to the customary standards of the people: — per legem terrae — , equivalent in a sense to the more conservative phrase of “secundum normam legis” of Romanic origin. Therefore, it not only concerns a due “process” of law, but also certain rules of substantive nature. Essentially its procedural nature consists in the opportunity to be heard. Its purely substantive nature consists in a restriction imposed on the democratic government in regard to its confiscatory actions that may affect the right, liberty or property of the citizen. Sometimes it is difficult to draw a line between the purely adjective and the purely substantive elements. Up to a certain extent each application of due process may confront the possibility of a confiscatory invasion of a substantive type and the possibility of a total absence of defense of an adjective type.

In criminal law, however, due process is more directly connected with the purely procedural aspect of the doctrine. Due process reduced to its most categorical terms consists of the following elements: (1) a specific criminal accusation, notified to the defendant; (2) a reasonable opportunity to answer said accusation; (3) an opportunity to confront the adverse evidence and contradict it; (4) an opportunity to introduce evidence for the defense. No fact which has not been proved within the due process of law pursuant to the legal technique prescribed for the admission of evidence, shall be considered to determine the defendant’s guilt.

But once defendant is found guilty, the rule of due process, if applicable, is essentially limited to the following procedural elements: (1) inquiry by the judge from the party or its counsel as to the reasons which may exist for not entering judgment against him; (2) an opportunity to the defendant for requesting permission from the court to introduce mitigating evidence on “the extent of the punishment” to be imposed, when the imposition of said punishment has been left to the trial judge’s discretion, §§ 320 and 321 of the Code of Criminal Procedure,—The People v. Valcourt, 16 P.R.R. 692; (3) pronouncement in the presence of defendant so that he may take the corresponding exceptions, move for reconsideration of any erroneous or arbitrary sentence, or appeal therefrom on a fixed date. As to the imposition of the punishment in itself, it is clear, that unless the court is requested for an opportunity to introduce evidence of aggravation or mitigation, the same is not a part of the due process. It is likewise clear to us that the power of a judge to reconsider a sentence is not a part of any constitutional right of the defendant, provided the punishment assessed is within the statutory limits.

Although the power of a judge to impose a heavier sentence on reconsideration while the defendant is under the court’s custody is not in issue, appellate courts at times give an opportunity to review the possible merits of the aggravation in order to protect the sound practice of the courts that sentences should not be unreasonable, oppressive or vindictive. The more science progresses on the behavior of man, the greater the emphasis that must be put on the theory that the sentence imposed on a public offender should not go beyond the range necessary to prepare him for his social reform.

(4) The possible error that might be committed by a trial judge in imposing on reconsideration a heavier sentence than the original one, is governed by the circumstances under which the aggravation of the sentence was produced. Peterson v. United States, 246 Fed. 118, 119 (917). At the hearing of the appeal before this Court, the Fiscal, without petitioner’s objection, offered a sworn statement of Mr. Rodolfo Ramírez Pabón, the trial judge, which insofar as pertinent states:

“Q. Did defendant, his counsel or the prosecuting attorney move for reconsideration of the sentence?

“A. Defendant’s counsel as well as the prosecuting attorney were present when the defendant was sentenced and neither counsel nor prosecuting attorney asked for reconsideration.

“Q. Then the court — I believe, because of defendant’s conduct —reconsidered the sentence?

“A. Evidently, that is so.

“Q. Was the original sentence of from three to five years in harmony with the law pursuant to the punishment provided by § 410 of the Penal Code for the offense of burglary in the first degree which is from 1 to 15 years?

“A. Yes, sir.

“Q. If he had not attempted to escape, you would not have reconsidered the sentence?

“A. There is no doubt that defendant’s attitude, whose criminal record I knexv, and the state of confusion and disorder which he caused in court by his escape were factors that prompted me to reconsider the sentence.

“Q. Was defendant not prosecuted for a violation of § 152 of the Penal Code?

“A. He was not prosecuted for escaping.

“Q. Was defendant’s counsel present when the sentence was reconsidered?

“A. Yes, sir, defendant’s counsel was present.

“Q. Is there anything else that you wish to add to your testimony?

“A. I believe that what has been said is sufficient inasmuch as the testimony which I have given is in my opinion, a true statement of what took place on that occasion.

“Q. Does my colleague believe that the persons, who participated in the capture, marshals and penal guards, would not add anything to your testimony?

“A. I am under the impression that their testimony would be substantially the same as mine.

“Q. Was defendant arrested within the court’s building?

“A. When he was going downstairs, he did not leave the building.”

Undoubtedly, one of the reasons for reconsidering the sentence in the instant case is defendant’s attempt to obstruct the course of justice, precisely at the time when he was being sentenced for the first time by the trial judge. When the marshals succeeded in overtaking him, they took him again to the trial judge who almost instantly proceeded to sentence him for the second time. Was it within the judge’s powers to reconsider the original sentence imposing a heavier one? We must answer in the affirmative. Was he justified in increasing the original sentence? Undoubtedly the original sentence was extremely light for a second offender. Instead of acknowledging the friendly and liberal attitude of the court, the offender assumes right in the presence of the trial judge, a truculent attitude, of open contempt to the judicial authority creating “a state of confusion and disorder” in the court. It is not surprising therefore, that in view of this unusual provocation, the judge felt constrained to reconsider the former sentence.

After an accused is found guilty the mission of the judge is different. While his main duty during the criminal prosecution which leads to the conviction is to insure a spotless proceeding by virtue of which a human being is to be deprived of his liberty, however, upon passing sentence he must consider other risks. His position is that of a sociologist faced with the problem of human behavior. He must study not only the wrong which may be caused to defendant by an unusual or retaliatory punishment but also the wrong which any inadequate or ineffective punishment may be caused on society. In imparting justice one of the elements of judgment that the trial judge may consider in determining what sentence should be imposed in each case, is the degree of adaptability'that an offender may still develop for the peaceful acceptance of the legal practices established by public order. The antisocial conduct constitutes an individual problem which must be decided in accordance with its own merits, within the highest ideals of service to mankind. But this does not mean that a trial judge ought to let the coercive power of the state dwindle into a vicious romanticism which would tend to become a specious rule of justice.

The trial judge had two alternatives to confront the truculent or unusual attitude of the offender: to reconsider his original sentence or to order petitioner’s arrest for a new trial. Of the two he chose the best suited to the moment of passing judgment, the one that best fitted the new and unexpected element of antisocial behavior which takes place before his own eyes, the one which provided the most effective remedy to his noble error of leniency. With power to do so and it being directly fitting at said particular time, it seems to us that to order a new trial would be to indulge in a legalistic nicety of slight constructive value.

The writ shall be discharged.-