Respondent was convicted in a Pennsylvania trial court on
multiple counts of theft and multiple counts of forgery. He was
sentenced to two-to-five years of imprisonment on a single theft
count and five years of probation on one of the forgery counts.
Sentence was suspended on the remaining counts. On respondent's
appeal, the Pennsylvania Superior Court held that the statute of
limitations barred the prosecution of several of the theft counts,
including the count on which respondent had received his sentence
of imprisonment. On the Commonwealth's appeal, the Pennsylvania
Supreme Court affirmed the Superior Court's ruling on the statute
of limitations, and denied the Commonwealth's request that the case
be remanded to the trial court for resentencing on the remaining
theft counts. The court acknowledged that a defendant could be
twice sentenced for the same count when there was an intervening
retrial at the defendant's request, but it held that resentencing
on the counts which were affirmed after an appeal by the
Commonwealth was barred by the Double Jeopardy Clause when the
sentence of imprisonment on another count was vacated.
Held: The Pennsylvania Supreme Court's rationale was
inconsistent with the rationale of the holding in
United States
v. DiFrancesco, 449 U. S. 117,
that the Double Jeopardy Clause was not violated by 18 U.S.C. §
3576, which allows the United States to appeal to a court of
appeals the sentence given a "dangerous special offender" by a
district court, and allows the court of appeals to affirm the
sentence, impose a different sentence, or remand to the district
court for further sentencing proceedings. Since the Pennsylvania
Supreme Court in this case held that resentencing was barred by the
Double Jeopardy Clause, it did not consider whether Pennsylvania
laws in effect at the time allowed the State to obtain review of
the sentences on the counts for which the sentence had been
suspended. Accordingly, the judgment is reversed, and the case is
remanded for a determination of that issue and for further
consideration in light of
DiFrancesco.
Certiorari granted; 507 Pa. 236,
489
A.2d 1307, reversed and remanded.
PER CURIAM.
The Supreme Court of Pennsylvania held below that the Double
Jeopardy Clause of the Fifth Amendment of the
Page 474 U. S. 29
United States Constitution barred the resentencing of
respondent. 507 Pa. 236,
489 A.2d
1307 (1985). We grant certiorari, and, on the basis of our
decision in
United States v. DiFrancesco, 449 U.
S. 117 (1980), we reverse and remand. The motion of
respondent for leave to proceed
in forma pauperis is
granted.
Respondent was convicted in the Philadelphia Court of Common
Pleas on 56 counts of forgery and 56 counts of theft. He was
sentenced by the trial court to two-to-five years of imprisonment
on a single theft count and five years of probation on one of the
forgery counts. Sentence was suspended on the remaining counts.
Respondent appealed all 112 convictions to the Superior Court of
Pennsylvania. That court ruled that the statute of limitations
barred the prosecution of 34 of the theft counts, including the
count on which respondent had received his sentence of
imprisonment.
On appeal by the Commonwealth, the Supreme Court of Pennsylvania
affirmed the Superior Court's ruling on the statute of limitations.
In addition, the Supreme Court of Pennsylvania denied petitioner's
request that the case be remanded to the trial court for
resentencing on the remaining 22 theft counts. The court
acknowledged that a defendant could be twice sentenced for the same
count when there was an intervening retrial at the request of the
defendant, but it held that resentencing on the counts which were
affirmed after an appeal by the Commonwealth is barred by the
Double Jeopardy Clause when the sentence of imprisonment on another
count is vacated. 507 Pa., at 248-251, 489 A.2d at 1314-1315,
citing
North Carolina v. Pearce, 395 U.
S. 711 (1969).
The Pennsylvania Supreme Court's rationale is inconsistent with
the rationale of the holding of this Court in
DiFrancesco,
supra. In
DiFrancesco we upheld the constitutionality
of 18 U.S.C. § 3576, which allows the United States to appeal to
the court of appeals the sentence given a "dangerous special
offender" by a district court, and allows the court
Page 474 U. S. 30
of appeals to affirm the sentence, impose a different sentence,
or remand to the district court for further sentencing
proceedings.
We noted that the decisions of this Court "clearly establish
that a sentenc[ing in a noncapital case] does not have the
qualities of constitutional finality that attend an acquittal."
DiFrancesco, supra, at
449 U. S. 134.
In
North Carolina v. Pearce, supra, we held that a court
could sentence a defendant on retrial more severely than after the
first trial. Any distinction between the situation in
Pearce and that in
DiFrancesco is "no more than a
'
conceptual nicety.'" DiFrancesco, supra, at
449 U. S. 136
(quoting Pearce, supra, at 395 U. S.
722). Indeed, a resentencing after an appeal intrudes
even less upon the values protected by the Double Jeopardy Clause
than does a resentencing after retrial:
"[T]he basic design of the double jeopardy provision [is to] bar
. . . repeated attempts to convict, with consequent subjection of
the defendant to embarrassment, expense, anxiety, and insecurity,
and the possibility that he may be found guilty even though
innocent. These considerations, however, have no significant
application to the prosecution's statutorily granted right to
review a sentence. This limited appeal does not involve a retrial
or approximate the ordeal of a trial on the basic issue of guilt or
innocence."
DiFrancesco, supra, at
449 U. S.
136.
In
DiFrancesco a federal statute clearly allowed the
appellate review of the sentences at issue. The Court noted that,
in light of that statute, the defendant could not claim any
expectation of finality in his original sentencing. 449 U.S. at
449 U. S. 136,
449 U. S. 139.
Here, because the Pennsylvania Supreme Court held that resentencing
was barred by the Double Jeopardy Clause, there was no need to
consider below whether the Pennsylvania laws in effect at the time
allowed the State to obtain review of the sentences on the counts
for which the sentence had been suspended. We reverse and remand
the
Page 474 U. S. 31
case to the Supreme Court of Pennsylvania for a determination of
that issue, and for further consideration of this case in light of
DiFrancesco,
supra.
Reversed and remanded.
JUSTICE BRENNAN dissents from summary disposition and would vote
to deny the petition.
JUSTICE MARSHALL dissents from this summary disposition, which
has been ordered without affording the parties prior notice or an
opportunity to file briefs on the merits.
See Maggio v.
Fulford, 462 U. S. 111,
462 U. S.
120-121 (1983) (MARSHALL, J., dissenting);
Wyrick v.
Fields, 459 U. S. 42,
459 U. S. 51-52
(1982) (MARSHALL, J., dissenting).
JUSTICE BLACKMUN would grant the petition and set the case for
argument.
JUSTICE STEVENS, dissenting.
In
United States v. DiFrancesco, 449 U.
S. 117 (1980), this Court upheld the constitutionality
of a federal statute that permitted Government appeals from certain
sentences. Today, the Court summarily reverses because it finds
that the "Pennsylvania Supreme Court's rationale is inconsistent
with the rationale of the holding of this Court in DiFrancesco."
Ante at
474 U. S.
29.
The Pennsylvania Supreme Court opinion does not mention
DiFrancesco. The appellate briefs before the Pennsylvania
court did consider that case, however. [
Footnote 1] Indeed, Mr. Goldhammer argued that
DiFrancesco did not govern precisely because no
Pennsylvania statute authorized government appeals of sentences at
the time of his conviction and sentencing. [
Footnote 2] Mr. Goldhammer has raised the same
argument
Page 474 U. S. 32
before this Court in his response to the Commonwealth's
petition. [
Footnote 3]
Moreover, it should be noted that, unlike the situation in
DiFrancesco, the Pennsylvania prosecutor made no attempt
to take an appeal from the sentences imposed by the trial court.
The Commonwealth, in its petition and in its reply, has not
adequately addressed these points.
The majority recognizes that the Pennsylvania court's judgment
may ultimately be supported by state law grounds.
See ante
at
474 U. S. 30-31.
In view of that uncertainty, and in view of the Commonwealth's
failure to address this important issue, I would simply deny
certiorari. [
Footnote 4] I
would presume that the Pennsylvania Supreme Court determined that
DiFrancesco did not govern for the plausible state law
reason that had been argued to it.
Three factors support this presumption. First, Pennsylvania's
current statutory framework for permitting government appeals from
sentences was not in place at the time of Mr. Goldhammer's
conviction and sentencing. [
Footnote 5] Second, Pennsylvania courts are now applying
the new statutory framework, [
Footnote 6] with full knowledge of
DiFrancesco.
[
Footnote 7] Third,
Page 474 U. S. 33
and perhaps most importantly, we should assume that a State
Supreme Court is familiar with this Court's precedents and with its
own State's law. Because the majority's summary reversal reflects a
contrary assumption, I respectfully dissent.
[
Footnote 1]
See Brief for Appellant in No. CR 84-1852, p. 13, n. 3;
Brief for Appellee in No. CR 84-1&52, pp. 13-15.
[
Footnote 2]
See id. at 14 ("At the time the instant case arose in
Pennsylvania, the Commonwealth did not have the right to appeal
from a sentence. That right did not exist until the sentencing
guidelines were approved in July, 1982.
See 42 Pa.C.S.A. §
9781").
[
Footnote 3]
See Brief in Opposition 9, n. 6 ("At the time of the
trial and sentence here, there was no statutory provision in
Pennsylvania for appeal of sentences").
[
Footnote 4]
See this Court's Rule 21.6 ("The failure of a
petitioner to present with accuracy, brevity, and clearness
whatever is essential to a ready and adequate understanding of the
points requiring consideration will be a sufficient reason for
denying his petition").
[
Footnote 5]
See 42 Pa.Cons.Stat. § 9781 (1982); 204 Pa. Code §
303.1
et seq. (1982), reproduced following Pa.Stat.Ann.,
Tit. 42, § 9721 (Purdon 1982).
[
Footnote 6]
See, e.g., Commonwealth v. Dixon, 344 Pa.Super. 293,
496
A.2d 802 (1985);
Commonwealth v. Hutchinson, 343
Pa.Super. 596, 496 A.2d 956 (1985);
Commonwealth v.
Drumgoole, 341 Pa.Super. 468, 491 A.2d 1362 (1986).
[
Footnote 7]
See Commonwealth v. Drumgoole, supra, at 477, n. 2, 491
A.2d at 1366, n. 2 ("Appellee also suggests that to grant the
relief sought by the Commonwealth
would appear to be a
violation of the Fifth Amendment Constitutional guarantee against
double jeopardy.' This argument has been resolved contrary to
appellee's claim. United States v. DiFrancesco,
449 U. S. 117 . .
.").