Tuesday, May 27, 2008

Vindictive Sentencing

The issue of vindictive sentencing can arise at original sentencing or at resentencing. A vindictive sentence is imposed where the defendant is punished for exercising his or her appellate rights or where any judicially imposed penalty needlessly discourages assertion of the Fifth Amendment right not to plead guilty and deters the exercise of the Sixth Amendment right to demand a jury trial, and such a sentence is patently unconstitutional.(1) Vindictiveness in sentencing does not mean that the trial judge affirmatively intends to punish the defendant for rejecting a plea. “Vindictive” in this context is a term of art which expresses the legal effect of a given course of action, and does not imply any personal or subjective animosity between the court and the defendant.(2)

In a narrow range of cases where there is no actual vindictiveness, but instead there is an apprehension on the part of the defendant to exercise his or her legal rights due to fear of retaliation from the court, vindictiveness may be presumed. The “Pearce presumption” of vindictiveness arose out of the cases of Clifton A. Pearce and William S. Rice. Pearce was convicted in a North Carolina court of assault with intent to rape and sentenced to serve 12 to 15 years in prison; Rice pleaded guilty to four charges of burglary and was sentenced in an Alabama court to serve a total of 10 years. After having served several years, Pearce was granted a new trial because a confession used against him was held to have been obtained in violation of his constitutional right not to be compelled to be a witness against himself; Rice’s conviction was set aside because, although he was indigent, he had not been provided with a court-appointed lawyer at the time he made his guilty plea. Both respondents were retried and again convicted. Rice’s sentence was increased to 25 years, and no credit was given for time he had previously served; Pearce was sentenced to 8 years which, when added to the time he had already served, amounted to a longer sentence than originally imposed. In neither case did the record contain any justification for the increased sentence, and so the United States Supreme Court reversed the sentences as being unconstitutionally vindictive.(3)

The presumption has been narrowed considerably since its initial pronouncement, but the law remains that due process of law requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he or she receives after a new trial. Since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his or her first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge. In order to assure the absence of such a motivation, whenever a judge imposes a more severe sentence upon a defendant after the grant of collateral relief or a new trial than that judge originally imposed upon the defendant, the reasons for his doing so must affirmatively appear in the record. In order to rebut the presumption of vindictiveness, those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring before or after(4) 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.(5) Those factors must also be stated with particularity and specificity.(6) A trial judge is thus not constitutionally precluded from imposing a new sentence, whether greater or less than the original sentence, in the light of events that may have thrown new light upon the defendant’s life, health, habits, conduct, and mental and moral propensities.(7) 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.(8)

When a defendant rejects an offer of a lesser sentence, the defendant assumes the risk of receiving a harsher sentence, but when the judge has been involved in the plea negotiation and then later imposes a harsher sentence, the sentence is presumed to be vindictive. This presumption may be overcome only if the record affirmatively demonstrates that the defendant’s insistence on a trial was given no consideration in the sentencing.(9)

As the United States Supreme Court explained in Texas v. McCullough,(10) however, the evil the Pearce Court sought to prevent was not the imposition of enlarged sentences after a new trial but vindictiveness of a sentencing judge. The presumption does not apply, in any event, unless there is a realistic likelihood of vindictiveness, or, in other words, the opportunities for vindictiveness must impel the conclusion that due process of law requires a rule analogous to that of the Pearce case.(11) A mere opportunity for vindictiveness is insufficient to justify the imposition of this prophylactic rule.(12) Accordingly, not every increase in sentence justifies the imposition of the rule announced in Pearce.(13)

The possibility of vindictiveness does not present itself in situations where the sentencing judge has no personal stake in the prior sentence and no motivation to engage in self-vindication.(14) The possibility of vindictiveness is not inherent in situations where the defendant is resentenced by a different judge or a different court, and the sentencing is conducted de novo,(15) where it is the original sentencing judge who grants the defendant’s motion for new trial or other collateral relief pertaining to sentencing,(16) or where a different judge imposes the second sentence and provides an on-the-record, wholly logical, nonvindictive reason for the sentence.(17) No presumption applies where the first sentence was imposed as a result of a guilty plea and the second sentence was imposed after trial because the defendant rejected an offer made by the prosecutor with no judicial participation in the plea discussions.(18) There is no basis for a presumption of vindictiveness where a second sentence imposed after trial is heavier than a first sentence imposed after a guilty plea.(19) Pearce does not per se prohibit imposing consecutive sentences after concurrent sentences are reversed on appeal.(20)

Where the presumption applies, the sentencing authority or the prosecutor must rebut the presumption that an increased sentence or charge resulted from vindictiveness; but in all cases where the presumption does not apply, the defendant has the burden of proving actual vindictiveness.(21) Absent a demonstration by the defendant of judicial vindictiveness or punitive action where the presumption of vindictiveness is not present, a defendant may not complain simply because he or she received a sentence after trial that was more severe than the pretrial offer of the State or the sentencing judge. There is, of course, no need to apply a presumption of vindictiveness if the record contains proof of actual vindictiveness.(22)

Where vindictive sentencing has been established, the remedy is resentencing before a different judge.(23) The successor judge is to conduct a de novo sentencing hearing at which no deference is to be granted to any of the sentencing proceedings which took place before the predecessor judge. The fact that the prior sentence was reversed as vindictive places no limit on the successor judge, who can impose a greater, lesser, or equal sentence as that judge sees fit and the law permits. The successor judge who imposes a greater sentence is not required to justify the sentence imposed on the basis of facts and circumstances unknown to the predecessor judge. This is because resentencing places the defendant in the same position he or she would have been in if the prior sentence had never occurred – before a neutral arbiter to receive a lawful sentence.(24)

1. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968); City of Daytona Beach v. Del Percio, 476 So. 2d 197, 205 (Fla. 1985) (quoting Gillman v. State, 373 So. 2d 935, 938 (Fla. Dist. Ct. App. 2d Dist. 1979)).

2. Longley v. State, 902 So. 2d 925 (Fla. Dist. Ct. App. 5th Dist. 2005) n 5; see also, Cambridge v. State, 884 So. 2d 535 (Fla. Dist. Ct. App. 2d Dist. 2004); Harris v. State, 845 So. 2d 329 (Fla. Dist. Ct. App. 2d Dist. 2003); Charles v. State, 816 So. 2d 731 (Fla. Dist. Ct. App. 3d Dist. 2002).

3. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

4. The Pearce Court did not intend to confine the sentencing authority’s consideration to “conduct” occurring subsequent to the first sentencing proceeding. See, Wasman v. United States, 468 U.S. 559, 104 S. Ct. 3217, 82 L. Ed. 2d 424 (1984).

5. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

6. Kramer v. State, 868 So. 2d 1246 (Fla. Dist. Ct. App. 4th Dist. 2004); North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

7. Williams v. New York, 337 U.S. 241, 245, 69 S. Ct. 1079, 1082, 93 L. Ed. 1337 (1949).

8. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

9. McDonald v. State, 751 So. 2d 56 (Fla. Dist. Ct. App. 2d Dist. 1999).

10. Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L. Ed. 2d 104 (1986).

11. Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 40 L. Ed. 2d 628 (1974).

12. United States v. Goodwin, 457 U.S. 368 at 384, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982).

13. See, Blackledge v. Perry, 417 U.S. 21, 26, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974).

14. Chafin v. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973).

15. Colten v. Kentucky, 407 U.S. 104, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972) (sentencing before different court); see also, Chafin v. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973) (jury sentencing); Texas v. McCullough, 475 U.S. 134, 138, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986); Fitts v. Commonwealth, 2005 WL 2674991 (Ky. 2005) (jury sentencing); State v. Parmelee, 121 Wash. App. 707, 90 P. 3d 1092 (Ct. App. Wash. 2004) (different judge); State v. Starr, 998 S.W. 2d 61 (Ct. App. Mo. 1999) (different judge); State v. Percy, 156 Vt. 468, 595 A. 2d 248 (Vt. 1990) (different sentencers); State v. Hilton, 291 S.C. 276, 353 S.E. 2d. 282, cert. denied, 484 U.S. 832, 108 S. Ct. 106, 98 L. Ed. 2d 66 (1987) (different judge).

16. Texas v. McCullough, 475 U.S. 134, 138, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986).

17. Texas v. McCullough, 475 U.S. 134, 138, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986); see also, Macomber v. Hannigan, 15 F. 3d 155 (10th Cir. 1994).

18. Wilson v. State, 845 So. 2d 142 (Fla. 2003).

19. Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989).

20. Netherly v. State, 873 So. 2d 407 (Fla. Dist. Ct. App. 2d Dist. 2004).

21. Wasman v. United States, 468 U.S. 559, 104 S. Ct. 3217, 82 L. Ed. 2d 424 (1984); see also, Kopko v. State, 709 So. 2d 159 (Fla. Dist. Ct. App. 5th Dist. 1998).

22. Texas v. McCullough, 475 U.S. 134, 138, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986); Wasman v. United States, 468 U.S. 559, 104 S. Ct. 3217, 82 L. Ed. 2d 424 (1984); United States v. Goodwin, 457 U.S. 368, 380-81, 103 S. Ct. 2485, 73 L. Ed. 2d 74 (1982).

23. Wilson v. State, 845 So. 2d 142, 158-59 (Fla. 2003).

24. Wilson v. State, 845 So. 2d 142 (Fla. 2003); Dominguez v. State, 924 So. 2d 58 (Fla. Dist. Ct. App. 3d Dist. 2006).


The following is a sample of some of the questions this post has generated.

K.K. writes on September 18, 2008:

“I was doing a websearch on vindictive sentences. I found you and hope that you can help. My husband is serving 30 months for driving with suspended licenses. He's done a year so far. He says there is a guy there that can help him if his sentence is vindictive. i dont want my husband to have to do longer for trying this and i dont want him getting his hopes up either. But i would like him home if possible. He was on probation for his license and was given a suspended sentence. However he did not score enough points to go to prison. The state and the public defender both agreed that the sentence was harsh. He violated by failing his drug test. Can you help us or give us some kind of information, please. Thank you in advance.”

ANSWER: Harsh is not the same as vindictive, and length of sentence is not per se evidence of vindictiveness. Where a defendant is placed on probation with a suspended sentence of incarceration and subsequently violates the terms of supervision, the sentencing court can impose any lawful sentence that could have originally been imposed, even in excess of the suspended period of incarceration that was part of the original sentencing and even if the length of the suspended sentence was part of a plea bargain.(1) For felony offenses, the defendant can be sentenced to prison for up to the statutory maximum, even where the defendant does not have enough points on his or her Criminal Punishment Code scoresheet to mandate a prison sentence. One consideration that any defendant should make when attempting to overturn a sentence that is less than the statutory maximum is that he or she can and receive an increased sentence upon resentencing.

(1) State v. Seguerra, 388 So. 2d 1017 (Fla. 1980).

1 comment:

Anonymous said...

How would this apply to a prejudiced Judge and DA. My husband has been in county jail for 18 months now on a crime with no basis and no evidence, but since he was out on bond the judge has revoked the bond and repeatedly denied all motions on the defense side. I have been told by his PD that the judge and state have it out for him . they recently made an offer that would bring him home in 10 months but has been told that if he loses trial he will face max which is 5 years x3 for being a habitual. he is innocent, but with his record i dont know.. i don't trust the justice system.