State v. MacOmber , 244 Kan. 396 ( 1989 )

Miller, C.J.,

concurring and dissenting: I concur with the majority’s affirming the convictions here, but I respectfully disagree with the majority’s approval of the imposition of a more severe sentence, following Macomber’s second trial, under the facts disclosed by this record.

The issue of the constitutionality of imposing a more severe sentence, following retrial, was squarely before the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). Pertinent parts of the opinion of the Court read:

“[N]either the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction. A trial judge is not constitutionally precluded . . . from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant’s ‘life, health, habits, conduct, and mental and moral propensities’ Williams v. New York, 337 U.S. 241, 245[, 93 L. Ed. 1337, 69 S. Ct. 1079 (1949)]. 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. The freedom of a sentencing judge to consider the defendant’s conduct subsequent to the first conviction in imposing a new sentence is no more than consonant with the principle, fully approved in Williams v. New York, [337 U.S. 241,] that a State may adopt the ‘prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime.’ [Williams v. New York, 337 U.S.] at 247.” (Emphasis supplied.) 395 U.S. at 723.

The Court concluded by saying:

“Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his 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, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively 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 be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal." (Emphasis supplied.) 395 U.S. at 725-26.

In the case at hand, as I perceive the record, the sentencing judge indicated that he would have imposed the increased sentence, had he been the sentencing judge at the first trial. He considered all of the facts and factors which could have been considered at the time the defendant was first sentenced. There was, however, no objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. The increased sentence was not based upon events or conduct subsequent to the first trial.

To require the defendant to prove that the second judge, in imposing a harsher sentence, was vindictive is to impose an impossible burden upon him. He cannot demonstrate to an appellate court what was in the mind of the second judge at the time sentence was imposed. As the Supreme Court noted in a footnote to the Pearce opinion, “The existence of a retaliatory motivation would, of course, be extremely difficult to prove in any individual case. But data have been collected to show that increased sentences on reconviction are far from rare.” 395 U.S. at 725 n. 20.

There is, of course, no evidence and I do not suggest that Judge Sanborn was vindictive or that he exercised other than good faith and judicial discretion in imposing sentence. At the sentencing hearing, he stated:

“Mr. Jennings [an assistant district attorney] has said that whatever Judge Deer [who imposed the original sentence] did, if what I do' doesn’t track with that, I have to make an excuse. I don’t, and I won’t, because I am making up my own mind.”

Later, after imposing sentence, he said, “I have made the sentence that I think is appropriate for the conduct.”

I find nothing in. the record to indicate that the increased sentence was imposed because of conduct on the part of the defendant occurring after the time of the original sentencing proceeding. As I read Pearce, a harsher sentence could not be imposed following retrial, absent a showing in the record of the reasons for imposing such sentence.

I respectfully suggest that the sentence should be vacated and the case remanded for resentencing.