Gardner v. State ( 1998 )

Robert L. Brown, Justice,

dissenting. I agree with the majority opinion that a prima facie case of a due process violation was made by the prosecutor’s adding the habitual offender count on retrial. I also agree that our test should be whether the prosecutor offered an objective explanation for why the enhancement charge was not originally made. United States v. Goodwin, 457 U.S. 368 (1982). And I, finally, agree that a mere mistake by the prosecutor in not filing the habitual offender count initially is not sufficient to rebut the presumption. See United States v. Andrews, 633 F.2d 449 (6th Cir. 1980), cert. denied, 450 U.S. 927 (1981).

The problem in this case is that the facts do not warrant a rebuttal of the presumption under the law set out by the majority. First, the only explanation by the prosecutor as to why he did not initially charge Gardner as a habitual offender is that the matter never came to trial and he usually checked for other convictions and amended the criminal information, if appropriate, a week before trial. This explanation falls short of an objective explanation and falls more readily into the category of a mistake. The prosecutor attended the plea, and what could be of greater importance to the sentencing judge than the fact that the defendant had a prior record? Yet, the trial judge did not have this information available when he first sentenced Gardner.

There is also the point that there is no indication that the trial court used the presumption-of-vindictiveness standard or sought an objective explanation from the prosecutor to rebut that presumption. What the trial court did was rely on Aaron v. State, 319 Ark. 320, 891 S.W.2d 364 (1995), which is distinguishable from this case on the facts. In Aaron, the prosecutor tried to amend the criminal information in the first trial to charge the defendant as a habitual offender and the trial court sustained the defendant’s objection that the prosecutor was too late. We reversed the conviction, and prior to retrial, the prosecutor “corrected its oversight” and amended the information. Aaron, 319 Ark. at 323, 891 S.W.2d at 365. We held that this correction was not evidence of prosecutorial vindictiveness. Contrary to the facts in Aaron, in the instant case, there was no effort by the prosecutor to amend Gardner’s information before his plea and sentence.

In sum, we are talking merely about a mistake made by the prosecutor to rebut the presumption of vindictiveness. That is not sufficient under United States v. Andrews, supra. Accordingly, I dissent.

Newbern, J., joins.