State v. Robbins

850 P.2d 176, 123 Idaho 527, 1993 Ida. LEXIS 59

• Court: Idaho Supreme Court
• Decided: February 11, 1993
• Docket: 18607
• Status: Published

Opinions

JOHNSON, Justice.

This is a criminal sentencing case.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

Iain Colon Robbins pled guilty to a charge of battery with intent to commit rape. Judge Magnuson sentenced Robbins to serve an indeterminate term of ten years, with a minimum term of forty-two months. Robbins appealed this sentence claiming, among other things, that the prosecutor failed to abide by the terms of the plea bargain agreement by not recommending that the trial court retain jurisdiction over the defendant pursuant to I.C. § 19-2601(4).

During the appeal, the state and Robbins presented a stipulation to this Court requesting:

that the case be remanded to the district court for resentencing, at which sentencing [Robbins] will be entitled to specific performance of the plea agreement, ... that another district judge shall be designated to conduct the sentencing hearing and impose sentence, ... [and that the new district judge] will not be bound by the recommendations as set forth in the plea agreement.

This Court then remanded the case to the trial court and stated that the trial court “shall have jurisdiction to take any action necessary to consider and enter an Order concerning the resentencing of [Robbins] as provided in the Stipulation for Remand.”

On remand, Judge Haman conducted the resentencing. He considered an updated presentence investigation report (PSI) that included the original PSI report, new testimony from the victim, and the recommendations of counsel. Judge Haman sentenced Robbins to serve an indeterminate term of fifteen years, with a minimum term of five years.

Robbins appeals the sentence imposed by Judge Haman on the grounds that the trial court violated his right to due process of law by not specifically informing him that he could receive a greater sentence on re-sentencing and by imposing a greater sentence than Judge Magnuson imposed.

The state has challenged Robbins’ right to appeal the imposition of a greater sentence on resentencing, because Robbins did not present this question to the trial court.

II.

THIS COURT WILL ADDRESS THE DUE PROCESS ISSUE CONCERNING THE IMPOSITION OF A GREATER SENTENCE ON RESENTENCING UNDER THE FUNDAMENTAL ERROR RULE.

The state asserts that we should not consider Robbins’ appeal of the greater sentence imposed on resentencing, because Robbins did not present this question to the trial court. While we agree that this issue was not preserved below, we will address the merits of the issue under the fundamental error rule. Although the state did not challenge the propriety of our addressing the other issue raised by Robbins on appeal, we decline to address Robbins’ assertion that the trial court violated his right to due process by not informing him that he could receive a greater sentence on resentencing. This question was not presented to the trial court, and the error, if any, would not be fundamental.

A. Appeal of Greater Sentence Allowed.

The state argues that under this Court’s decision in State v. Martin, 119 Idaho 577, 808 P.2d 1322 (1991), the Court should not hear the appeal challenging the greater sentence imposed on resentencing because the legality of Robbins’ sentence was not presented to the trial court. We first point out that it is a misreading of I.C.R. 35 and Martin to construe Robbins’ claims of violation of his right to due process in his resentencing as a claim that his sentence was illegal.

Martin dealt with the imposition of a sentence that was not authorized by the statute specifying the penalty for driving without privileges, a felony. This was the meaning of “illegal sentence” in that case. This is the same meaning given “illegal sentence” in State v. Howard, 122 Idaho 9, 830 P.2d 520 (1992). In Howard, the sentence at issue was not authorized by the statute providing the penalty for vehicular manslaughter. The Court held that the sentence was “illegal.” Id. at 10, 830 P.2d at 521; see also State v. Lavy, 121 Idaho 842, 845, 828 P.2d 871, 874 (1992) (sentence imposed in excess of that provided by statute was illegal); cf. State v. Vetsch, 101 Idaho 595, 596, 618 P.2d 773, 774 (1980) (fact that defendant received a greater sentence than accomplice does not make the sentence illegal). Even if Robbins’ sentence violated his right to due process of law as he asserts, it was not illegal in the sense the term is used in I.C.R. 35 and Martin.

The more relevant focus for the issue raised by the state is the basic proposition that underlies our decision in Martin. As we said less than four months after that decision:

The longstanding rule of this Court is that we will not consider issues that are presented for the first time on appeal. Recently we applied the rule to dismiss the appeal in a case where the state asked us to rule on an issue that was not raised in the trial court. State v. Martin, 119 Idaho 577, 808 P.2d 1322 (1991).

Sanchez v. Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991) (citation omitted).

The fact that Robbins did not raise in the trial court the issue of the constitutionality of imposing a greater sentence does not, however, completely resolve whether we will address this question on appeal. As we recently reiterated:

We will consider fundamental error in a criminal case, even though no objection was made at trial. In order to determine whether we will consider an issue presented on appeal that was not presented to the trial court, we first must assess whether the error would be fundamental if there were error____

... An error that goes to the foundation or basis of a defendant’s rights is a fundamental error.

State v. Kenner, 121 Idaho 594, 597, 826 P.2d 1306, 1309 (1992) (citation omitted).

In Kenner, we held that if the trial court had violated Kenner’s privilege against self-incrimination, this would have been a fundamental error. In this case, we must consider whether the errors Robbins asserte the trial court made would be fundamental, if they were errors. In making these decisions, we must determine whether errors such as these go to the foundation or basis of Robbins’ rights.

Robbins’ due process challenge to the sentence imposed on him by Judge Haman on resentencing is founded on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). If Robbins were correct in his assertion that the greater sentence imposed on resentencing violated his right to be free from a vindictive sentence on resentencing, the error would be fundamental, because it would go to the foundation or basis of Robbins’ rights. Therefore, we will address the merits of this issue.

B. Appeal Concerning Failure to Inform that the Trial Court Might Impose a Greater Sentence not Allowed.

The same is not true, however, of the other issue raised on appeal by Robbins. Robbins claims the trial court violated his right to due process by failing to inform him that it might impose a greater sentence than the original sentence. Robbins presents this issue under the axiom that a defendant’s guilty plea must be made voluntarily, knowingly, and intelligently. This mischaracterizes the issue. Robbins did not plead guilty at the resentencing, nor did he request the opportunity to change his plea. His counsel told Judge Haman that Robbins had not selected the option of withdrawing his guilty plea and proceeding to trial, but had instead stipulated to a resentencing before a new judge, with the prosecutor making the recommendation for retained jurisdiction that was part of the plea bargain agreement.

The issue is not whether Robbins pled guilty voluntarily, knowingly, and intelligently, but whether he had a constitutional right to be informed by the trial court that on resentencing the trial court could impose a greater sentence than Robbins had received from Judge Magnuson. Robbins has not presented us with any authority that supports his contention that he had a due process right to be informed of the possibility of a greater sentence, nor have we discovered any. Therefore, the error, if any, was not fundamental, and we will not address it.

III.

THE TRIAL COURT DID NOT VIOLATE ROBBINS’ RIGHT TO DUE PROCESS OF LAW BY IMPOSING A GREATER SENTENCE ON RESEN-TENCING.

Robbins asserts that the trial court violated his right to due process of law by •resentencing him to a term greater than the term originally imposed. We disagree.

Robbins argues that the trial court should not have had the opportunity to resentence Robbins completely. The trial court, he contends, should have only determined whether or not to retain jurisdiction, because that was the part of the original sentencing procedure which the prosecutor failed to honor. To allow resentencing completely, he argues, would discourage defendants from appealing their sentences based on an alleged breach by the prosecution of a plea bargain agreement. In essence, Robbins contends, it would chill defendant’s from exercising their right of appeal.

In Pearce, the Supreme Court ruled that imposition of a heavier sentence following retrial would violate due process, if the motivation for the heavier sentence were to punish the defendant for getting the original conviction set aside. To protect a defendant from retaliatory motivation, the Court held that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for [the judge’s] doing so must affirmatively appear.” 395 U.S. at 726, 89 S.Ct. at 2081, 23 L.Ed.2d at 670. This rule has been read to “[apply] a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.” United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 2489, 73 L.Ed.2d 74, 81 (1982).

In a number of cases after Pearce, the Supreme Court has limited the effect of the Pearce presumption. In Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), the Court refused to apply the Pearce presumption to Kentucky’s two-tiered trial system. The Kentucky court system allowed a defendant a de novo trial from an inferior court’s order. The Supreme Court found this system did not have inherent possibilities of vindictiveness and noted that the Kentucky system involved two separate court systems, and the de novo review did not require the higher court to find “fault” in the inferior court. The fact that the higher court knew about the inferior court’s sentence was not dispositive. Colten also made it clear that the focus of Pearce is on the possibility of vindictiveness in sentencing following retrial and not on the possibility of the defendant receiving a greater sentence following retrial. That some defendants may forgo an appeal because they might receive a non-vindictive higher sentence was not a basis for limiting the trial court’s legitimate sentencing options.

In Chaffin v. Stychcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), the Court refused to apply the Pearce presumption where separate juries imposed the sentences. The Court noted that a jury system did not possess the same inherent possibilities of vindictiveness as a system in which a judge imposes sentence. The Court also acknowledged that a jury would not know the length of the prior sentence, was unlikely to have a personal stake in the prior conviction, and would not be sensitive to “institutional interests” that might occasion a higher sentence by a judge desirous of discouraging meritless appeals.

In Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986), the Court reversed a state court’s application of the Pearce presumption where the original sentence was imposed by a jury and the second sentence was imposed by the trial judge. The sentencing judge in McCullough was the same judge that presided at the original trial. The Supreme Court noted that the retrial was held because the judge herself found prosecutorial misconduct, that there was no motivation for “self-vindication,” and that the defendant chose to be sentenced by the judge instead of a jury. The Supreme Court first found that the Pearce presumption did not apply and then commented that even if it did apply, the trial judge had enough additional information at the retrial to satisfy Pearce.

In Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), the Supreme Court reversed a state court’s application of the Pearce presumption where the original sentence was based on a guilty plea and the greater sentence followed a full trial. The same judge imposed both sentences. The Supreme Court noted that a full trial would bring out more information about the defendant and the crime than a guilty plea and would give the sentencing judge a fuller appreciation of the nature and extent of the crimes. The Supreme Court held that in order to apply the Pearce presumption there must be a “reasonable likelihood” that the trial court’s greater sentence was based on actual vindictiveness. The Supreme Court held the Alabama system did not possess a reasonable likelihood of actual vindictiveness.

In the Supreme Court cases following Pearce, especially McCullough and Colten, it is clear that the chance of a greater sentence on appeal was not the basis for concern about vindictiveness expressed in Pearce. Pearce addressed the means of protecting a defendant from retaliatory motivation on the part of the sentencing judge.

Although all of the Supreme Court cases addressing this issue deal with resentencing after retrial, there is no reason to treat resentencing pursuant to a stipulation to remand any differently than resentencing after retrial.

In this case, a different judge resentenced Robbins on remand. Judge Haman explained the basis for the sentence he imposed. He focused on the gravity of the offense and the objectives of criminal sentencing prescribed by this Court. He acknowledged that the sentence he imposed was more severe than Judge Magnuson’s sentence, but said he did not feel bound by the original sentence. Based on these circumstances, we do not apply the Pearce presumption, because there is not a reasonable likelihood that Judge Haman’s sentence was based on actual vindictiveness. Robbins received exactly what the stipulation for remand requested—resentencing by a different judge. This removed any reasonable likelihood of actual vindictiveness in the resentencing.

Robbins argues that the concept of vindictiveness in this case arises from the “institutional interests” of a judge within the court system. In Chaffin, the “institutional interest” of a sentencing judge is described as how the judge may act, in general, to discourage what the trial judge considers are meritless appeals. In McCullough, the Supreme Court rejected as “too speculative” an argument that the sentencing judge would act vindictively merely because the defendant is seeking acquittal or that the trial judge would be “annoyed” at having to sit through a second trial. The Supreme Court stated: “We decline to adopt the view that the judicial temperament of our Nations’s trial judges will suddenly change upon the filing of a successful post-trial motion.” Id. at 139, 106 S.Ct. at 979, 89 L.Ed.2d at 111. Robbins’ argument is similar to the argument rejected in McCullough.

In the absence of the Pearce presumption, a defendant must prove actual vindictiveness. Wasman v. United States, 468 U.S. 559, 569, 104 S.Ct. 3217, 3223, 82 L.Ed.2d 424, 433 (1984) (“where the [Pearce] presumption does not apply, the defendant must affirmatively prove actual vindictiveness”). The portion of the record upon which Robbins relies to show “pure vindictiveness” does not prove that the Judge Haman was dealing harshly with Robbins because Robbins pursued his right to appeal. Rather, the transcript indicates that it is Judge Haman’s practice to deal very harshly with all charges concerning rape. Robbins has not carried the burden of proving actual vindictiveness.

IV.

CONCLUSION.

We affirm the sentence imposed on Robbins by Judge Haman.

McDEVITT, C.J. and TROUT, J., concur.