State v. Clark

Chief Judge SCHWARTZMAN,

dissenting.

I must respectfully dissent, as I believe the spirit, if not the letter, of the rationale enunciated in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), has been abridged.

This case was remanded to the trial court for resentencing for the sole reason that this Court, on the first appeal, could not determine from the record whether Clark’s legal status as a “persistent violator” of the law influenced the imposition of his life sentence, with thirty years fixed. The district judge answered that question in the negative at the very outset of the resentencing hearing, claiming it had no effect whatsoever in the determination and imposition of Clark’s original sentence.¹ Thereafter, the district judge spent several hours involved in a one-on-one colloquy with, and interrogation of, the defendant on virtually every aspect of the presentence investigation.

Accordingly, I would vacate the fixed life sentence and remand this case to a different district judge for resentencing or simply reimpose the original sentence.

1 . In addition, the district judge expressed his dissatisfaction, on the record, with this Court’s appellate decision overturning the finding of persistent violator status in the first place and remanding the case for resentencing, as well as with the Supreme Court for not granting the state’s petition for review.