State v. Thompson

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 91-180


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 3, Caledonia Circuit

 Angela M. Thompson                           February Term, 1992


 Dean B. Pineles, J.

 Robert M. Butterfield, Caledonia County Deputy State's Attorney,
   St. Johnsbury, for plaintiff-appellee

 David C. Sleigh, St. Johnsbury, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      DOOLEY, J.   Defendant, Angela Thompson, appeals from a $500 fine,
 imposed after she was convicted of simple assault.  She claims the sentence
 violated her due process rights because it was imposed after she asserted
 her right to appeal from a proposed lower sentence which contained illegal
 elements.  We agree and reverse.
      Defendant was convicted of simple assault entered into by mutual con-
 sent following a fight with another woman.  13 V.S.A. { 1023(b).  At the
 sentencing hearing, the court first proposed a $500 fine with all but $100
 suspended and ordered the defendant to pay $200 in restitution.  When
 defendant argued that the restitution part of the sentence was illegal and
         indicated that she might appeal, the court stated:
         If the defense is going to challenge a restitution
         order, and perhaps there is a legal basis for the
         challenge, then some of what I had in mind is what we
         would normally think of as pain and suffering and that
         is generally not the kind of thing we deal with when we
         talk about restitution.  I may just impose a fine of
         $500 and get on with it.

 Defendant then sought a statement from the court on the record showing the
 purpose of the restitution order.  The court agreed to give it, but stated,
 "I would like to know what the defense's position is on that."  Defendant's
 lawyer answered that he had thirty days to decide and continued to indicate
 that restitution could not be awarded to a mutual combatant in a fight.  The
 court then changed its sentence and said:
         Well, if it is going to turn out to be an issue and
         potentially cause this litigation to continue, I think
         finality is more important and we will just end the
         discussion of restitution and I will order that payment
         of a fine of $500 which is what I indicated when the
         matter was brought to my attention by the Clerk as to
         whether we could resolve this without probation.  That
         discussion came up when we were deciding how to schedule
         this matter for further proceedings.
         The discussion referred to by the court is not on the record.
      Defendant raises two issues:  (1) whether the restitution award in the
 court's proposed sentence was lawful; and (2) whether her due process rights
 were violated by the imposition of a higher sentence after she exercised her
 right to challenge the lower, potentially illegal sentence.  Since the court
 did not impose its proposed sentence and we agree that the sentence actually
 imposed denied due process, we reach only the second issue.
      The leading case on due process constraints in sentencing options is
 North Carolina v. Pearce, 395 U.S. 711 (1969).  The issue in Pearce was
 whether a defendant who obtained a new trial on appeal could be sentenced to
 a harsher sentence upon reconviction.  Id. at 713.  The Court held first
 that the imposition of a penalty on defendant for successfully pursuing an
 appeal, whether or not the appeal involved a constitutional issue, violates
 due process of law.  The Court summarized its holding on this point as
 follows:
           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 defend-
         ant'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.

 Id. at 725.  In order to protect the constitutional right, the Court
 created a rebuttable presumption that a harsher sentence following retrial
 is vindictive unless "identifiable conduct on the part of the defendant
 occurring after the time of the original sentencing proceeding" is shown to
 justify the sentence.  Id. at 726.
      Although the presumption established in Pearce has been narrowed by
 later decisions of the United States Supreme Court, see State v. Percy, 156
 Vt. ___, ___, 595 A.2d 248, 255-56 (1990), the basic principle remains that
 sentences imposed in retaliation for a successful exercise of the right of
 appeal deny due process of law.  See Alabama v. Smith, 490 U.S. 794, 799
 (1989).  Although Pearce involved a successful challenge to the defendant's
 conviction, its rationale and holding apply equally to a challenge to the
 legality of a sentence.  See Stewart v. Smith, 129 Vt. 182, 183, 274 A.2d 504, 505 (1971) (Pearce "requires that there be no increase in the penalty
 on resentencing, unless the judge's reasons affirmatively appear").  Thus,
 it would have been a violation of due process under Pearce in this case if
 (1) the court had imposed its proposed sentence; (2) defendant had prevailed
 on appeal in her claim that the restitution component was unlawful; and (3)
 the court had then imposed a harsher resentence to retaliate against
 defendant for her successful appeal.  The questions we face here are whether
 the same result should obtain if the court acted to prevent an appeal and
 whether the sentence actually imposed in the instant case was vindictive.
      We do not hesitate in holding that Pearce applies where a sentence is
 imposed in retaliation for a threat of appeal and in order to prevent the
 appeal.  While this is a matter of first impression in Vermont, other
 jurisdictions have addressed this specific issue.  For example, the Maryland
 Court of Special Appeals held it improper for a judge to inquire prior to
 sentencing whether the defendant intends to appeal.  Mahoney v. State, 13
 Md. App. 105, ___, 281 A.2d 421, 425 (1971), cert. denied, 409 U.S. 978
 (1972).  Drawing on the rule in Pearce, the Maryland Court reasoned:
         It is improper for a trial judge to inquire prior to
         imposition of sentence as to whether or not a defendant
         contemplates filing an appeal, because such an inquiry
         gives rise to an inference that the severity of the
         sentence is to be measured by the response of the
         defendant.  Such a query is not relevant to the
         sentencing. . . .  It logically follows that if the
         courts are prohibited from exercising vindictiveness on
         a retrial because of a defendant's successful appellate
         attack, they are likewise prohibited from exercising
         vindictiveness because of a defendant's intention to
         appeal.
 Id.; see also Colburn v. State, 501 S.W.2d 680, 683 (Tex. Crim. App. 1973)
 (holding that Pearce prevents the trial court from increasing punishment
 because defendant expressed desire to appeal).  These decisions are
 consistent with our holding in State v. Buck, 139 Vt. 310, 314-15, 428 A.2d 1090, 1093 (1981) that a sentence cannot be conditioned on a "restriction or
 prohibition" of the right of appeal.
      Thus, the validity of this sentence turns on whether it was imposed
 vindictively in response to defendant's argument that the court's proposed
 sentence was illegal and her expressed intent to appeal.  In addressing this
 question, it is important to emphasize certain facts the sentencing hearing
 transcript discloses.  First, it is clear that defendant would have faced a
 total financial penalty of $300, $100 as a fine and $200 as restitution, if
 she had not questioned the court's right to require restitution.  In fact,
 the court twice declared its intention to impose that sentence, changing it
 only because of defendant's continued assertion that it was unlawful.
 Second, the final sentence, a $500 fine, was harsher than that originally
 imposed.  Third, if defendant had indicated that she would not appeal the
 original sentence, it would not have been changed to the harsher sentence.
 This was made clear by the court's statements that if the sentence "is going
 to turn out to be an issue and potentially cause this litigation to
 continue, I think finality is more important," and "if the defense is going
 to challenge a restitution order, . . . I may just impose a fine of $500 and
 get on with it."   Moreover, the court requested "to know what the defense's
 position is on that."  Fourth, the record shows no nonretaliatory
 justification for the harsher sentence.  The only reason given, that the
 court was considering such a sentence before the sentencing hearing, fails
 to explain the differential impact of the two sentences on defendant.
      We think that the sentence was vindictive as that term is used in
 Pearce.  From the full statement of the Pearce rule, the Court explained the
 use of the term "vindictiveness" as referring to a retaliatory motivation.
 Pearce, 395 U.S.  at 725.  There can be no doubt that the court intended "to
 impose a penalty upon the defendant's right of appeal and to affect the
 exercise of her right to do so."  State v. Patton, 221 N.C. 117, 119, 19 S.E.2d 142, 144 (1942); see also State v. Davis, 155 Vt. 417, 421, 584 A.2d 1146, 1148 (1990) (when defendant rejects a plea bargain, sentence would be
 vindictive if it improperly weighed defendant's failure to plead guilty);
 Cleveland v. State, 507 S.W.2d 769, 770 (Tex. Crim. App. 1974) ("trial court
 endeavored to chill this appellant's right to appeal"); Colburn v. State,
 501 S.W.2d  at 683 (harsher sentence was imposed "to punish appellant more
 severely because he gave notice of appeal").  The absence of an alternative
 reason for the harsher sentence makes the conclusion inescapable that the
 court was retaliating for defendant's exercise of the right to contest an
 arguably illegal sentence.  Even were there no presumption at all, it is
 clear the higher sentence here was vindictive. (FN1)
      There is a related problem that is particularly apparent in this case.
 In effect, the court engaged in a kind of sentence bargaining with
 defendant in the hope that it could induce her to accept a final resolution.
 The risk in such a situation is that the court will try to maximize the
 likelihood that defendant will accept the resolution by making the
 alternative particularly undesirable.  Thus, the sentence imposed here could
 reflect the court's negotiating strategy rather than its view of the
 appropriate punishment for defendant for the offense.  This type of
 bargaining chills the right of appeal, see State v. Goodloe, 196 Neb. 381,
 383, 243 N.W.2d 69, 70 (1976), and puts the sentencing court in the
 inappropriate position of fashioning a "deal" rather than a sentence. (FN2) 
 A fundamental concern of the Pearce rule is to eliminate even the possibility
 of retaliation so that the defendant will have no apprehension about
 exercising the right of appeal.  Pearce, 395 U.S.  at 725.  It is impossible
 to eliminate such apprehension if the defendant views the court as the
 adversary in a negotiation.
      When it concluded that its original sentence might not resolve the
 matter with finality, the court could have imposed a penalty not more severe
 than that which it originally proposed.  As the Alaska Court of Appeals
 stated:
         Assuming the restitution award was improper, the court
         could substitute a fine . . . without violating
         [defendant's] right not to have his sentence increased
         so long as the fine imposed did not exceed the
         restitution previously required but set aside.
 Dorris v. State, 656 P.2d 578, 584 (Alaska Ct. App. 1982).  As the sentence
 first proposed amounted to a total payment of $300, with $200 more
 suspended, the subsequent fine should not have exceeded those respective
 amounts.
      Reversed and remanded for resentencing consistent with this opinion.

                                         FOR THE COURT:




                                         Associate Justice




FN1.    The Texas Court of Appeals has adopted a separate rule for this type
 of case:
     [O]nce a trial court has knowledge of a convicted
     felon's intention to appeal, it is almost impossible for
     a reviewing court to determine whether the assessment of
     punishment was due to vindictiveness.  Therefore, in our
     opinion the best resolution is [to] . . . prevent the
     trial court from even inquiring as to whether a
     convicted felon intends to appeal.
 Gifford v. State, 630 S.W.2d 387, 389 (Tex. Crim. App. 1982).  Its reasoning
 was based in part on the reasoning of the Maryland Court of Appeals in
 Mahoney v. State.  13 Md. App. 105, 113, 281 A.2d 421, 425 (1971).  The
 Maryland court declined, however, to find a denial of due process based on
 an isolated question about whether defendant intended to appeal where the
 record did not show that the answer affected the court's sentence and there
 was no indication of "passion, ill-will, prejudice, or some other unworthy
 motive."  Id., 13 Md. App. at 112, 281 A.2d  at 425.
      We need not decide in the instant case whether we would follow the
 Texas Court of Appeals and prohibit all inquiry as to defendant's intent to
 appeal.

FN2.    We do allow the court to participate in plea bargaining under
 circumstances that promote openness and predictability of sentences.  See
 Reporter's Notes to V.R.Cr.P. 11(e)(1).  In State v. Davis, 155 Vt. at 421,
 584 A.2d  at 1148, we held that such participation was consistent with the
 Pearce rule as long as there is not a showing of vindictiveness in the
 imposition of a sentence after a breakdown in plea negotiations.  The
 difference here is that the court was conducting a negotiation between a
 specific, arguably illegal sentence if defendant accepted it without appeal
 and a harsher alternative if defendant insisted in challenging the legality
 of the first sentence.  In the plea bargain situation, the court does not
 hold out a specific alternative sentence to be imposed if the defendant
 fails to accept the plea bargain.  While defendant assumes the risk of a
 harsher alternative in rejecting the plea bargain, the court must sentence
 based on the information before it without giving improper weight to
 defendant's failure to plead.  Id.