IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED
AT KNOXVILLE January 5, 2000
Cecil Crowson, Jr.
OCTOBER SESSION, 1999 Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9901-CC-00007 )
Appellee, )
) ANDERSON COUN TY
VS. )
)
JAMES HARRIS, ) HON . D. KEL LEY T HOM AS, JR ., ) JUDGE
Appellan t. )
) (Resentencing)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF ANDERSON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
MART S. CIZEK PAUL G. SUMMERS 245 North Main Street, Suite 100 Attorney General and Reporter Clinton, TN 37716 ELLEN H. POLLACK
Assistant Attorney General 425 Fifth Avenu e North
Nashville, TN 37243
JAMES M. RAMSEY
District Attorney General
JAN HICKS
Assistant District Attorney General 127 Anderson County Courthouse 100 North Main Street
Clinton, TN 37716
OPINION FILED ________________ AFFIRMED DAVID H. WELLES, JUDGE
OPINION
The Defendant, James Harris, appeals as of right his sentence imposed by the trial c ourt afte r a rem and fro m this Cour t. He w as orig inally ind icted in December 1987 b y an An derson Coun ty Gran d Jury for a ssault w ith intent to com mit first degree murder. After a jury trial in October 1988, the Defendant was found guilty of the crime charged and was sentenced to thirty-five years incarceration. That conviction and sentence was upheld by this Court, and the Tennessee Supreme Court denied review. Subsequently, the Defendant filed a petition for post-conviction relief which was granted on the basis of ineffective assistance of counsel due to counsel’s failure to communicate a plea offer to the Defen dant. In its opinion upholding the grant of post conviction relief, the supreme court set forth the facts giving rise to the finding of ineffective assistance of counsel as follows:
Appellee was indicted in Anderson Coun ty for assau lt with intent to commit murder. In pre-trial negotiations the defense counsel and the Assistant District Attorney General in the case discussed the possibility of defendant entering a plea of g uilty. In a letter dated 12 February 1988 the State made a plea offer of a five (5) year Ra nge I sen tence, w ith no prob ation or co mm unity correction. The offer was conditioned on the defense waiving any filed motions and would be held open for only 10 days. The letter included a nota tion stating that if the offer was rejected defense counsel should schedule a motion hearing with the trial court. On 24 Febru ary 19 88 the Attorn ey Ge neral was notified that defense counsel had scheduled a motion hearing and the prosecution regarded the scheduling of these motions as a rejection of the plea offer. Defense counsel testified at the post-conviction hearing that he received the prosecution’s plea offer on the 17 th or 18th day of February. He endeavored to inform petitioner of the offer through his parents , but did not communicate with him directly concerning the matter until later in Ma rch 1988, after the expiration of the offer.
On 29 February 1988 the Assistant District Attorney General
3
informed defense counsel that since no response had been forthcoming within the allotted 10 days the plea bargain offer was no longer valid and no further offers w ould be ma de. On the sam e date State’s counsel filed notice informing the trial court and defense counsel that the S tate intend ed to seek Range II sentencing at trial.
Defendant went to trial without any knowledge of the plea offer by the Sta te and was fo und g uilty at tria l.
Harris v. State, 875 S.W.2d 662, 663 (Tenn. 1994). The supreme court found that trial counsel was ineffective in failing to relay the plea offer to the Defendant and remanded the case to the trial court with instruction s for the S tate to “reinstate its original guilty plea offer and n egotiate in good faith.” Id. at 667. If the Defen dant ac cepted the offer, the suprem e court d irected the trial court to “utilize its discretion to accep t or reject this or any othe r plea agreement which may be negotiated. O therwise, the ca se will stand for trial in due co urse.” Id.
Upon remand, the Defendant accepted the five-year plea offer, but the trial court rejected it. The Defe ndan t was th en ag ain tried and convicted in November 1995 of assault with intent to commit first degree murder. He was sentenced as a Range I standard offender under the Criminal Sentencing Reform Act of 1989 to twen ty-thre e yea rs inca rcerat ion. He appe aled h is conviction and se ntence to this Court, which upheld the conviction, but remanded for resente ncing. State v. Harris , 978 S.W.2d 109, 118 (Tenn. Crim. App. 1997). Because the crime was committed in 1987, before the effective date of the current sentencing statute, the trial court was required to calculate the appropriate sentence under both the Criminal Sentencing Reform Act of 1989 and the Criminal Sentencing Reform Act
4
of 1982 a nd then impos e the less er sente nce of the two. State v. Pearson, 858 S.W.2d 879, 884 (Tenn. 1993). Because the trial court did not calculate the approp riate sentence under b oth statutes and then impose the lesser sentence,
5
the case was re mand ed for the trial court to pe rform this ta sk. Harris , 978 S.W.2 d at 116 .
At the new sentencing hearing on November 5, 1998, the trial court calculated the sentence under both the 1989 statute and the 1982 statute. Under the 1982 statute, the trial court found that the Defendant was a Range II offender because he had committed an especially aggravated offense and that the minimum sentence for the crime in Range II was thirty-two and a h alf years. See Tenn. Code Ann. §§ 40-35-107(2), (7), 40-35-109(b) (repealed 1989). Under the 1989 statute, the trial court found that the Defendant was a Range I standard offender and tha t the sente nce ran ge wa s fifteen to tw enty-five y ears. See id. § 40-35-112. Because the minimum sentence in Range II under the 1982 statute was greate r than th e ma ximu m se ntenc e in Range I under the 1989 statute, the trial court determined that it should sentence the Defendant under the 1989 statute. It then applied enhancement and mitigating factors and determined that the appropriate se ntence wa s twenty-three years. Acco rdingly, the trial court imposed a twenty-three year sentence. It is from this sentence that the Defendant now app eals, arguing tha t the trial court erred in using Ra nge II sentencing considerations in calculating the approp riate sentence under the 1982 statute because the State sought Range II sentencing due to vindictive prosecution caused by the Defendant’s original trial counsel’s ineffective representation.
The statute under which the Defendant was twice convicted provides as
6
follows:
7
Assa ult with intent to murder. - (a) Who ever sh all felonious ly and w ith malice aforethought assault any person, with intent to commit murder in the first degree, or sha ll administer or attempt to give any poison for that purpose, though death shall not ensue , shall, on conviction, be imprisoned in the state penitentiary for not less than five (5) nor more than twenty-five (25) years.
(b) If bodily injury to the victim occurs as a result of such an assault in violation of subsection (a ), the pu nishm ent sh all be a determ inate sentence of confinement in the state penitentiary for life or for a period of not less than five (5) years.
(c) In the c ase o f bodily injury to the vic tim, the offense defined in subsection (b) of this section is a Class X felony.
Id. § 39-2-103 (repealed 1989). The evidence at trial revealed that following a hearing in relatio n to the Defe ndan t’s divorce from Linda Harris, the Defendant went to his former wife’s place of employment at the offices of a pediatric dentist. While Linda Harris was preparing to treat a five-year old girl who was s eated in the dental chair, the Defendant entered the area and a ttacke d Ms . Harris with a knife. He cut Ms. Harris’ neck with the knife, causing a woun d app roxim ately five inches long and at least an inch d eep, w hich b arely m issed Ms. H arris’ ca rotid artery and w hich left a permanent scar. He also cut tendons in two of Ms. Harris’ fingers. One of Ms. Harris’ fingers remains impaired. Thus, under the statute, the Defendant caused bodily injury in the commission of the crime and was subject to a sente nce of five years to life im prisonm ent. See id. § 39-2-103(b) (repeale d 1989 ).
Also, under the 1982 Act, an offense is an “especially aggravated offense”
if the offense is a “felony during the com miss ion of w hich th e defe ndan t willfully inflicted serious bodily injury upon another pers on.” Id. § 40-35-107(2) (repealed 1989). “‘Serious bodily injury’ includes bodily injury which involves a substantial risk of death; unconsciousness; extreme physical pain; protracted and obvious
8
disfigurem ent; or protracted loss or impairment of the function of a bodily member or organ.” Id. § 40-35-107(5)(B) (repealed 1989). The victim spent three days in the ho spital fo r a nec k wou nd tha t barely misse d her c arotid artery, she has a permanent scar on her neck, and she suffers impairment of the function of one of her fing ers. Th us, it is apparent that she suffered “serious bodily injury” under the statute and the crime could be considered an “especially aggravated offen se.” The trial court below found that to be the case, and the Defendant does not challenge that finding.
In addition to providing that an offense may be co nside red an “espe cially aggravated offense,” the statute provides that “[i]f the district attorney general believes that a defendant should be sentenced . . . for an especially aggravated offense . . . he shall file a statement thereof with the court and defense counsel before trial or acceptance o f a guilty plea on the p rimary offense .” Id. § 40-35- 202(a) (repealed 1989). When sentencing a defendant, the trial court must base the sente nce “o n the e viden ce in th e reco rd of the trial, the sentencing hearing, the pre-sentence report, and in the ca se of a n esp ecially aggravated offense or a persistent offender, the statement filed by the dis trict attorney genera l with the court as required by § 40-35-20 2.” Id. § 40-35-21 0(d) (repealed 1989). Thus, before a court may sentence a defendant for an especially aggravated offense, the prosecution must request such a sentence. If, after such a request, the cou rt finds beyo nd a re ason able doubt th at the d efend ant co mm itted an espe cially aggravated offense, then the defen dant is to b e sente nced w ithin Ran ge II. See id. § 40-35-107(7) (repealed 1989). A Range II sentence is a sentence “not less
9
than the minimum sentence plus one-half of the difference between the maximum sentence and the minimum sentence, and not more than the maximum sentence as provided by law,” which in this case would be a sentence of thirty-two and a half years to life. See id. § 40-35-10 9(b) (repealed 1989).
As noted by the supreme court in the appeal from post-conviction relief, on the same day that she informed defense counsel that the plea bargain offer was no longe r valid and no further offers would be made, the assistant district attorney general filed a notice informing the trial court and defen se co unse l of the S tate’s intent to seek Range II sentencing at trial because the Defendant had committed an especially aggrava ted offens e. See Harris , 875 S.W.2d at 663, 665. In a footnote, the supreme court stated, “Ther e is som e indic ation in the rec ord at th is point evidencing a developing friction between counsel.” Id. at 665 n.2. From these notations in an opinion by our supreme court, the Defendant now asks us to presume, without further proof, that the assistant district attorney general filed the notice due to prosecutorial vindictiveness caused by origina l trial cou nsel’s ineffectiveness in failing to communicate th e plea to the D efend ant an d in negotiating with the State.
In our judic ial system ,
so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Within the limits set by the legislature’s constitutionally valid definition of charg eable offenses, “the conscious exercise of some select ivity in enforcement is not in itself a federal constitutional violation” so long
10
as “the selec tion was [not] deliberately based upon an un justifiab le standa rd such as race, re ligion, or othe r arbitrary cla ssification.”
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)). Also, the original indictment, which often begin s plea negotiations, “does not necessarily define the exten t of the le gitima te intere st in prosecution. For just as a pro secutor may forgo legitimate charges already brought in an effort to save the tim e and expe nse o f trial, a pro secu tor ma y file additional charge s if an initial exp ectation th at a defen dant w ould plea d guilty to lesser charges pro ves unfoun ded.” Unite d State s v. Go odw in, 457 U.S. 368, 380 (1982). While the prosecutor no doubt had the discretion to seek enhanced punishment because the facts clearly support the finding that the Defendant committed an especially aggravated offense, the Defendant asks us to find that the pros ecutor e xercised that discre tion out of v indictivene ss.
In the case of North Carolina v. Pearce, 395 U.S. 711, 724-25 (1969), the United States Supreme Court held that it is a violation of basic due proces s to punish a person because he has done what the law plainly allows. The defendant in Pierce successfully appealed his conviction and then received a greater sentence on retrial. While concluding that the Constitution does not bar the imposition of a more severe sentence after retrial, the Court held that the Due Process Clause of the Fourteenth Amendment prevents increased sentences which are actually or likely motivated by a vindictive desire to punish a defendant for the exer cise of a sta tutory or pr ocedu ral right. Id. at 723-24. To prevent actual vindictiveness and the fear of vindictiveness on the part of a defendant, the
11
Supreme Court established the rule that
whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirma tively 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 b e mad e part of the record, so that the constitutional legitimacy of the increased sentence may be fully review ed on appe al.
Id. at 726. The Supreme Court later interpreted this rule as applying a presumption of vindictiveness which may be overcome only by objective information in the re cord justifying the increase d sente nce. Goo dwin, 457 U.S. at 374.
In Blackledge v. Perry, 417 U.S. 21, 27-28 (1974), the Sup reme C ourt extended the presumption of vindictiveness to post-trial prosecutorial conduct which could be motivated by vindictiveness. In that case, the defendant was convicted of assault in a court having exclusive jurisdiction for the trial of misdemeanors, and when he appealed his conviction and requested a tria l de novo in the Superior Court, the prosecutor obtained a felony indictment charging the defendant with assault with a deadly weapon. The Court determined that such a situation posed “a realistic likelihood of ‘vindictiven ess’” and explaine d its reasoning for extending the presumption of vindictiveness as follows:
A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a trial de novo in the Su perior C ourt, since su ch an appe al will cle arly require increased expenditures of prosecutorial resources before the defen dant’s conviction bec omes final, an d may ev en result in a forme rly convicted defendant’s going free. And, if the prosecutor has the me ans rea dily at hand to discourage such appeals – by
12
“upping the ante” through a felony indictment whenever a convicted misd eme anan t pursu es his statutory a ppellate re medy – the Sta te can insure tha t only the m ost hardy defendants will brave the hazards of a de novo trial.
Id. at 27-28 .
While the Su prem e Cou rt has im pose d a pre sum ption o f vindictiveness when a defendant receives a harsher sentence upon retrial and when a defendant is indicted for a more serious offense after appea ling a co nvictio n, it has not yet applied the presump tion in a pretrial setting. See Bordenkircher v. Hayes, 434 U .S. 357 (1 978); Unite d State s v. Go odw in, 457 U.S. 36 8 (1982). The applicability of the presumption in a pretrial setting was first considered by the Supreme Court in Bordenkircher, 434 U.S. at 362-65. There, the defendant was indicted on a charge of uttering a forged instrument in the amount of $88.30, which was an offense punishable by a term of two to ten years in prison. During plea negotiations, the prosecutor offered a plea agreement and further told the defendant that if he did not plead guilty, the State would seek an indictment under the Kentucky Habitual Criminal Act which would subject the defendant to a mand atory life sentence due to two prior felony convictions. The defendant rejected the plea agreement and was subsequently indicted and convicted under the Habitual Criminal Act. In distinguishing this situation from Pearce and Blackledge, the Sup reme C ourt note d that
[i]n those cases the Court was dealing with the State’s unilateral imposition of a pena lty upon a defend ant wh o had c hosen to exercise a legal right to attack his original conviction – a situation “very different from the give-and-take negotiation common in plea bargaining betw een th e pros ecutio n and defen se, wh ich arg uably posse ss relative ly equal b argaining powe r.”
13
Bordenkircher, 434 U.S. at 362 (quoting Parker v. North Carolina, 397 U.S. 790, 809 (1970) (opinion of Brennan , J.)). Recognizing that a defendant may not be punished for exercis ing a lega l right, the Court determined that “in the ‘give-and- take’ of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecu tion’s offer.” Id. at 363. It subsequently held that a presumption of vindictiveness does not arise when a prosecutor follows through with a threat made during plea negotiations to bring additional charges against a defendant if the defendant refuses to plead guilty. Id. at 365.
The applicab ility of a presump tion of vindictiveness again cam e before the Supreme Court in th e pretrial co ntext in the case of United S tates v. Goodwin, 457 U.S. 368 (1982). In Goo dwin , the C ourt co nside red w hethe r the pro secu tor’s addition of a pretrial felony charge following the defendant’s pretrial demand for a jury trial on a misdemeanor charge gives rise to a presumption of vindictiveness. While acknowledging that it has been necessary to “presume” a vindictive motive in some circumstances, the Court stated, “Given the severity of such a presumption, however, which may operate in the absence of any proof of an improper motive and thus may block a legitimate response to criminal conduct – the Court has done so only in cases in which a reasonable likelihood of vindictiveness exists.” Id. at 373. In com paring post-trial actions o f prosecutors to pretrial actions, the Supreme Court had the following to say:
There is good reason to be cautious before adopting an inflexib le presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor
14
may uncover additio nal info rmatio n that s ugge sts a b asis for further prosecution or he simply may come to realize that information possessed by the S tate has a broader significance. At this stage of the proceedings, the prosecutor’s assessment of the proper extent of prosecution may not have crystallized. In contrast, once a trial begins – and certainly by the time a conviction has been obtained – it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.
In addition, a defendant before trial is expected to invoke procedural rights that inevitably impose some “burden” on the prosecutor. Defense c ounsel routinely file pretrial m otions to suppress evidence; to challenge the sufficiency and form of an indictme nt; to plead an affirm ative d efens e; to req uest p sych iatric services; to obtain access to government files; to be tried by jury. It is unrealistic to assum e that a prosec utor’s prob able resp onse to such motion s is to seek to pena lize and to deter. The invocation of procedural rights is an integral part of the ad versa ry proc ess in which our criminal justice system operates.
Thus, the timing of the prosecutor’s action in this case sugge sts that a p resum ption of vindictive ness is n ot warra nted. A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in p rosecu tion. An initial decision should not freeze future condu ct. As we made clear in Bordenkircher, the initial charges filed by a p rosec utor m ay no t reflect th e exte nt to w hich a n indiv idual is legitimate ly subjec t to prosec ution.
15
. . . This Court in Bordenkircher made clear that the mere fact that a defendant refuses to plead gu ilty and forces the government to prove its case is insufficient to warrant a presumption that subse quent c hange s in the ch arging d ecision a re unjustified .
Id. at 381-83.
While the Supreme Court did not hold that the presumption can never apply in a pretrial context, in light of its reasoning in Bordenkircher and Goo dwin , we cannot find the existence of a presumption of prosecutorial vindictiveness just because the prosecutor seeks enhanced punishment after plea nego tiations fail and defense counsel files motions with the trial court. See State v. Phipps, 959 S.W.2d 538, 546 (Tenn. 1997) (setting forth when the presumption of vindictiveness arises after considering the Suprem e Court precedent). Had the prosecutor sought enhanced punishment after the Defendant’s conviction had been overturned and the case was sent back for retrial, there might very well have been a different ou tcome in this case . See id. However, the situation here is precisely the type of situation in which the Supreme Court said the presumption does n ot arise. See Goo dwin , 457 U.S . at 381-8 2.
Because the presumption is not applicable, for us to find prosecutorial vindictiveness in this pretrial con text, the Defendant would have to prove actual vindictiveness. See id. at 384. The Defendant has pointed us to no proof of vindictiveness. He has only cited our supreme court’s opinion upholding the grant of post-conviction relief, in which the court noted that the prosecutor filed the notice of intent to seek enhanced punishment on the same day it notified
16
defense counsel that it view ed the plea offer a s rejected and that no further offers wou ld be forthco ming. See Harris , 875 S.W.2d at 663, 665. The court also noted that there w as so me e viden ce of a deve loping friction b etwe en co unse l at this point. See id. at 665 n.2 . Without the presumption of vindictiveness, this falls far short of establishing by any standard that the filing of the notice was im prope rly motivated. It is undisputed that the facts supported the enhanced sentence and that the prosecutor had the discretion to seek an enhanced sentence. Therefore, we upho ld the trial court’s finding that the minimum sentence under the 1982 Act wou ld be thirty-two and a half years because the Defendant committed an espe cially aggrav ated offen se. Acco rdingly, the Defen dant was properly senten ced to tw enty-thre e years under th e 1989 Act.
The jud gmen t is affirmed .
______________________________
DAVID H. WELLES, JUDGE
CONCUR:
________________________________
GARY R. WADE, PRESIDING JUDGE
________________________________
DAVID G. HAYES, JUDGE