REEVALUATING JUDICIAL VINDICTIVENESS: SHOULD THE PEARCE PRESUMPTION APPLY TO A HIGHER PRISON SENTENCE IMPOSED AFTER A SUCCESSFUL MOTION FOR CORRECTIVE SENTENCE? ALYSHA PRESTON INTRODUCTION Meet Clifton Pearce, a defendant who was found guilty on an assault charge and subsequently sentenced to a twelve-to-fifteen year prison term. 1 Several years after being convicted, Pearce submitted a post-judgment motion, which led to the reversal of his conviction. 2 He was retried, and reconvicted. 3 Instead of continuing his sentence, however, the United States Supreme Court imposed an eight year prison sentence, which, when added to the time already served, amounted to a longer sentence than that originally imposed. 4 Should Pearce have to serve a longer sentence for the same crime just because he successfully exercised his constitutional right to appeal? More than four decades ago, the Supreme Court addressed whether there are any constitutional limits upon the imposition of a more severe sentence following a reconviction on appeal. 5 Known as judicial vindictiveness, the Supreme Court, in North Carolina v. Pearce, 6 found that the Due Process Clause of the Fourteenth Amendment forbids such practice. 7 The Pearce Court created a presumption of judicial vindictiveness, finding that Senior Articles Editor, ; J.D., 2016, National Association iversity School of Law. 1 North Carolina v. Pearce, 395 U.S. 711, 713 (1969). 2 3 4 5 at 717. 6 395 U.S. 711 (1969). 7 at 723 24. 1
2 ST. JOHN S LAW REVIEW COMMENTARY whenever a judge imposes a more severe sentence upon a defendant after a new trial, there is a presumption that the judge acted with vindictive motives. 8 Following this decision, however, United States Circuit Courts of Appeal lack consensus as to when the presumption applies. On one hand, the Fifth and Ninth Circuits have construed the presumption narrowly, finding that the prodded the sentencing court into a posture of selfvindication... 9 The tribunal was the only... 10 The Seventh Circuit applied a more expansive view, finding that the presumption also 11 Recently, in Austin v. Plumley, 12 the Fourth Circuit joined the Seventh Circuit, 13 and, on January 20, 2015, the Supreme Court denied the petition for a writ of certiorari. 14 This Note attempts to fix the confusion that has grown among the circuit courts. At the forefront, this Note agrees with the dissenting opinion from Justice Clarence Thomas in that the Supreme Court erred by failing to solve the split of authority among the circuits. However, this Note argues for an outcome contrary to that proposed by Justice Thomas. Justice Thomas argued that the broad interpretation of the judicial in tension 15 However, after review of the Pearce and subsequent Supreme Court holdings, it is evident that such a broad interpretation is not only in accordance with precedent, but also combats the evil that the Pearce Court sought to prevent. Accordingly, this Note concludes that the Pearce 8 at 726. 9 Presuming Judicial Vindictiveness at Resentencing If Original Sentence Was Not Vacated on Appeal, U.S. SUP. CT. ACTIONS 6, (Thomson Reuters ed., Feb. 2, 2015). 10 11 12 per curiam), cert. denied, 135 S. Ct. 828 (2015). 13 at 187 88. 14 Plumley v. Austin, 135 S. Ct. 828 (2015). 15 See id. at 830 (Thomas, J., dissenting).
2016] REEVALUATING JUDICIAL VINDICTIVENESS 3 judicial vindictiveness presumption calls for a broad interpretation to the extent that it does not distinguish between cases where reversal was by a higher tribunal and cases where a trial court imposed a higher sentence after a motion for corrected sentence. I. BACKGROUND In Pearce, the United States Supreme Court found that, at Jeopardy Clause and forbid the imposition of a more severe sentence upon resentencing. 16 First looking to the Fifth Amendment, the Court found that the Double Jeopardy Clause only protects individuals from being prosecuted a second time for the same offense. 17 This longstanding constitutional doctrine not only imposes no limits against retrying a defendant whose conviction has been set aside but also imposes no limits regarding the length of a sentence imposed upon reconviction. 18 Similarly, the Court found that the restrictions. 19 Although the Equal Protection Clause protects convicts who do not seek new trials from having their sentences increase 20 However, the Court found that the Due Process Clause of the Fourteenth Amendment leads to a different conclusion. 21 hardly be doubted that it would be a flagrant violation of the Fourteenth Amendment... [to] impos[e] a heavier sentence... for the explicit purpose of punishing the defendant 22 for... those who choose to exercise constitutional rights 23 [is]... Therefore, the Court found 16 North Carolina v. Pearce, 395 U.S. 711, 723 (1969). 17 See id. at 717. The Fifth Amendment states, No] person [shall] be subject for the same offence to be twice put in jeopardy of life or limb... CONST. AMEND V.; see also David S. Rudstein, A Brief History of the Fifth Amendment Guarantee Against Double Jeopardy, 14 WM. & MARY BILL RTS. J. 193, 193 94 (2005). 18 Pearce, 395 U.S. at 719 20. 19 at 722 23. 20 See id. at 722. 21 at 723 24. 22 23 at 724 (quoting United States v. Jackson, 390 U.S. 570, 581 (1968)) (internal quotation marks omitted).
4 ST. JOHN S LAW REVIEW COMMENTARY the following regarding the Due Process Clause of the Fourteenth Amendment. Due process of law requires... that vindictiveness against a defendant for having successfully attacked his first conviction... play[s] no part in the sentence [a defendant] receives after a new trial.... [S]ince the fear of such exercise of the right to appeal... due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge. 24 Therefore, to circumvent such practice by trial judges, the Court created a presumption for judicial vindictiveness whenever a judge imposes a more severe sentence upon a defendant after a new trial. 25 [imposing a more severe sentence]... must affirmatively appear... based upon objective information concerning identifiable conduct on the part of the defendant occurring after 26 Following this decision, the Supreme Court narrowed its Pearce holding in several cases. In its subsequent cases, the Court made clear that its presumption of vindic not apply in every case where a convicted defendant receives a 27 Accordingly, the Court has refused to apply the presumption in cases where (1) [an] increased sentence was imposed by the second court in a two-tiered system which gave a defendant... the right to trial de novo 28 (2) a second jury, on retrial following a successful appeal, imposed a 29 and (3) penalty is imposed after trial than was imposed after a prior 30 sentence is the product of actual vindictiveness on the part of the 31 24 at 725. 25 at 726. 26 27 Alabama v. Smith, 490 U.S. 794, 799 (1989) (alteration in original) (quoting Texas v. McCullough, 475 U.S. 134, 138 (1986)) (internal quotation marks omitted) (overruling in part Pearce, 395 U.S. 711). 28 at 800 (citing Colten v. Kentucky, 407 U.S. 104 (1972)). 29 30 at 801. 31 See id. at 799.
2016] REEVALUATING JUDICIAL VINDICTIVENESS 5 32 Seeing the Supre at its initial presumption has led the Fifth, Ninth, and Eighth Circuits to do the same. These courts provided a narrower limitation to the scope of the presumption of vindictiveness; in particular, they refused to apply it to a ca increased after a successful motion for corrective sentence. Meanwhile, other courts maintained a broader interpretation and allowed the presumption to apply. II. THE CURRENT STATE: THE APPLICATION OF THE JUDICIAL VINDICTIVENESS PRESUMPTION TO SUCCESSFUL MOTIONS FOR CORRECTIVE SENTENCES A. The Circuit Split The first court to decide whether the Pearce presumption applies to increased sentences after a motion for corrective sentence was the United States Court of Appeals for the Seventh Circuit. In United States v. Jefferson, 33 defendant Dorothy Jefferson was sentenced to an aggregate of thirty-years imprisonment for various charges. 34 On her initial appeal, Jefferson successfully challenged two of her sentences. 35 Subsequ sentences for resentencing. 36 On remand, however, the district ten years to thirty years, and Jefferson appealed. 37 When addressing whether the Pearce presumption applied,... the case of resentencing after retrial from the case of resentencing after 38 vacating... The court felt that the Pearce presumption address noted that in cases of resentencing after an illegal sentence, 32 Plumley v. Austin, 135 S. Ct. 828, 831 (2015) (Thomas, J., dissenting). 33 760 F.2d 821 (7th Cir. 1985). 34 at 822. 35 (finding two of her sentences imposed illegal). 36 at 823. 37 38 at 825; see United States v. Paul, 783 F.2d 84, 88 (7th Cir. 1986) (reaffirming the Jefferson court, st Pearce's proscription applies not only to resentencing after retrial, but also to resentencing after vacation of an illegal
6 ST. JOHN S LAW REVIEW COMMENTARY safeguards are necessary. 39 Five years later, however, the Fifth Circuit applied the presumption more narrowly. In Kindred v. Spears, 40 Kindred was convicted of conspiracy to transport currency and other charges, and sentenced to thirty years. 41 At his initial parole review, the ex eligible for parole after serving no more than fifty-two months. 42 However, the Regional Patrol Commissioner recommended that ty level be increased and it was, making Kindred serve eighty months. 43 Kindred successfully challenged the upgrade, and the government appealed. 44 The Fifth Circuit presumption] because it was the Commission itself and not any 45 Because the case was not sent back on reversal, but instead sent 46 Later joining the Fifth Circuit were the Eighth and Ninth Circuits. The Eighth Circuit turned the presumption into a twopart test, making it necessary, under the first prong, that a higher tribunal reverses the initial sentence for the presumption to apply. 47 The Ninth Circuit, in Fenner v. United States Parole Commission, 48 found that a higher sentence after a motion for corrected sentence was not a triggering event, since, in that case, the district judge and not the Commission imposed the sentence, and the Commiss 49 39 Jefferson, 760 F.2d at 825. This judgment was later vacated and remanded by the Supreme Court on other grounds. See Jefferson v. United States, 474 U.S. 806 Garrett v. United States, 471 U.S. 773 (1985), which discusses double jeopardy issues). 40 894 F.2d 1477 (5th Cir. 1990). 41 at 1477 78. 42 at 1478. 43 44 45 at 1479. 46 at 1480. 47 Savina v. Getty, No. 92-1068, 1992 WL 369923, at *2 (8th Cir. Dec. 17, 1992). 48 251 F.3d 782 (9th Cir. 2001). 49 at 788.
2016] REEVALUATING JUDICIAL VINDICTIVENESS 7 B. On April 7, 2014, the Fourth Circuit was the last circuit court to determine when the Pearce presumption applies. In Plumley v. Austin, 50 defendant Timothy Austin was sentenced to one-to-three years imprisonment for an attempted escape from prison. 51 Because Austin was already serving a prison sentence for another crime, the trial judge decided that his sentence for the escape would start on his expected parole date. 52 Austin filed a motion for corrective sentence arguing that the trial court improperly imposed a sentence that was not purely concurrent or consecutive. 53 He also filed a writ of mandamus petition to the trial court to respond to the motion. 54 The trial court entered an amended sentencing order giving Austin a longer sentence. 55 The Austin appealed. 56 After an extensive review of Pearce, 57 the Fourth Circuit held that the policy reasons mentioned in the Pearce opinion permitted the court to apply the presumption in the case of a higher sentence after a motion for corrected sentence. 58 the Fifth Circuit decision in Kindred led them to the same conclusion. 59 There, the Kindred parole commission, which occurred merely by operation of presumption. 60 Here, however, the Fourth Circuit found that 61 50 per curiam), cert. denied, 135 S. Ct. 828 (2015). 51 Plumley v. Austin, 135 S. Ct. 828, 828 29 (2015) (Thomas, J., dissenting). 52 at 829. 53 54 55 56 at 829 30. 57 88 (4th Cir. 2014) (per curiam), cert. denied, 135 S. Ct. 828 (2015). 58 See id. at 187 88. 59 at 190. 60 See id. 61 at 188, 190 (quoting Kindred v. Spears, 894 F.2d 1477, 1480 (5th Cir. 1990)).
8 ST. JOHN S LAW REVIEW COMMENTARY Following the denial of certiorari, Justice Thomas issued a dissenting opinion, in which Justice Scalia joined, scolding the Fourth Circuit for its holding and reasoning. For one, Justice Thomas argued that to hold under the reasoning that Austin was who exercise[s] his right[] to file and obtain a motion for a new trial should also... [be] entitled to the presumption of Texas v. McCullough. 62 Furthermore, Justice Thomas argued that giving any defendant who exercises his right to have a presumption of proceedings. 63 presumption to successful motions for corrective sentences is misguided. The policy supporting the Pearce presumption McCullough, mandate that the Supreme Court hold otherwise. reasoning, that Austin was exercising his constitutional right, is misused. The Fourth Circuit did not rely on this to come to its conclusion; 64 instead, it simply stated such reasoning to distinguish its case from a case heard in an opposing circuit. 65 III. THE JUDICIAL VINDICTIVENESS PRESUMPTION SHOULD EQUALLY APPLY TO HIGHER SENTENCES IMPOSED AFTER A SUCCESSFUL MOTION FOR CORRECTIVE SENTENCE By denying certiorari, the United States Supreme Court 66 However, if and when the Court decides to address its Pearce presumption, it is imperative that Court of Appeals for the tion to the facts of the United States 62 Plumley v. Austin, 135 S. Ct. 828, 830 (2015) (Thomas, J., dissenting); see Texas v. McCullough, 475 U.S. 134, 138 39 (1986). 63 at 830. 64 The Fourth Circuit focused on Pearce support its conclusion. See Austin v. Plumley, 88 (4th Cir. 2014) (per curiam), cert. denied, 135 S. Ct. 828 (2015). 65 See id. at 188 90. 66 Plumley v. Austin, 135 S. Ct. 828, 831 (2015) (Thomas, J., dissenting) (citing sts, Inc., 132 S. Ct. 12, 21 22 (2011)).
2016] REEVALUATING JUDICIAL VINDICTIVENESS 9 cases, this Note argues that the Pearce vindictiveness presumption calls for a broad interpretation that it does not distinguish between cases where reversal was by a higher tribunal and where a trial court imposed a higher sentence after a motion for corrected sentence. This result is warranted for two reasons. First, the policy behind Pearce supports such a conclusion. Second, the rationale behind any subsequent exceptions does not equally apply to motions for corrective sentences. In developing the judicial vindictiveness presumption, the Pearce Court had one fear. It feared that, if the Court held [the] practice of imposing a heavier sentence upon every reconvicted defendant for the 67 The Court found constitutional rights... be patently u successfully pursued a statutory right of appeal or collateral remedy 68 Although a successful motion for corrective sentence is not a reasoning clearly shows that the Court was trying to combat equivalent evils. A defendant who petitions a court for a corrective sentence is a defendant who is exercising statutory right and remedy. 69 Therefore, the courts should be equally concerned with the possibility of judges penalizing those who pursued statutory rights, and not try to limit the presumption to only reversals. 67 North Carolina v. Pearce, 395 U.S. 711, 723 (1969). 68 at 724 (quoting United States v. Jackson, 390 U.S. 570, 581 (1968)). 69 See, e.g., Fed. R. Crim. P. 35; W. Va. R. Crim. P. 35; N.Y. Crim. Proc. Law 440.20 (McKinney). In some cases, the defendant may not be voluntarily exercising a right. See Kindred v. Spears, 894 F.2d 1477, 1478 80 (5th Cir. 1990). Even still, the same conclusion should stand. It should make no difference as to whether the Contra id. In either circumstance, the defendant is subjected to the chance of the imposition of a higher sentence as a possible result of vindictive motives. Contra id. at 1478. For example, in Kindred where the sentencing guideline is forty to fifty-two months, but still imposed an eighty-month sentencing term with no reason for going above the guideline. The Kindred court refused to apply the presumption, stating that the defendant was not exercising a right; his sentence required mandatory review. at 1480. Such reasoning contradicts the policy behind Pearce. See Pearce, 395 U.S. at 723.
10 ST. JOHN S LAW REVIEW COMMENTARY to which the presumption is applied does not warrant a different result. In McCullough, the Supreme Court restricted the application of Pearce, emphasizing that the presumption cannot apply just because a defendant seeks an acquittal. 70 Subsequently, the Supreme Court in Alabama v. Smith 71 overruled Pearce in part... that the increase in sentence is the product of actual vindictiveness on the part of the sentencing aut 72 where vindictiveness 73 In Smith, the Court found that the reasonable likelihood that a judge exercised vindictiveness after a defendant withdraws his guilty plea and is sentenced to a longer prison term after trial is slim. 74 Because a guilty plea is imposed before trial, relevant sentencing information available to the judge after the plea will usually be considerably less than that available after a 75 The Court used similar reasoning to find other exceptions to the Pearce presumption. 76 Unlike guilty pleas and the other exceptions, however, an imposition of a higher sentence after a successful motion for vindictiveness. During resentencing, there are no other factors that one could immediately turn to in order to reasonably imply that the increased sentence was not an act of vindictiveness. As the Smith Court noted, during a trial after a withdrawn guilty plea, the judge is exposed to much more information than the judge had at the time of the guilty plea that may justify the increase in sentencing. 77 To fix an illegal sentence, however, a 70 Texas v. McCullough, 475 U.S. 134, 138 39 (1986). 71 490 U.S. 794 (1989). 72 at 799 (citation omitted). 73 McCullough, 475 U.S. at 139 (internal quotation marks omitted). 74 Smith, 490 U.S. at 801. 75 76 See supra notes 27 31 and accompanying text. 77 Similarly, the Colten v. Kentucky exception was based off the fact that the defendant is given a trial de novo with a completely new court and jury. 407 U.S. 104, 116 extremely slim. Additionally, the Chaffin v. Stynchcombe exception was based on could not stem from vindictive motives because a jury has no motive to penalize the
2016] REEVALUATING JUDICIAL VINDICTIVENESS 11 judge is not considering any new information that was not available during his original sentencing. 78 Furthermore, although a successful motion for resentencing may not be as harsh as a reversal by a higher tribunal, it does not mean that a judge would not be vindictive and consider the fact that a higher tribunal granted a motion telling the judge that his sentence was improper motive that the McCullough called for. Additionally, the harm of applying the presumption is fairly limited. Remember, the presumption is exactly just that, a presumption; 79 information... If the judge really did not abuse his discretion through vindictive motives, there should be no problem with rebutting the presumption. This Note does not stand for the proposition that the presumption should apply in every case where a defendant gets a higher sentence after a successful motion for corrective sentence. As McCullough and Smith announced, there must be a reasonable likelihood of vindictive motives, not just the mere proposition that the defendant successfully exercised his rights. Therefore, the decision of whether the presumption applies should be determined in accordance with the facts of each case. Instead, this Note stands against the proposition that a motion for corrective sentence is not a triggering event that prompts an inquisition into the application of the presumption. To find otherwise would undermine policy and fail to combat the evil that the Pearce Court sought to prevent. defendant for successfully exercising his right to an appeal and a retrial. See 412 U.S. 17, 26 27 (1973). 78 Although a judge has the option to consider all the evidence during resentencing, whether she should is an unresolved split of authority among the circuit courts. See Tracy Friddle & Jon M. Sands, Remands, Federal Sentencing Guidelines & the Protect Act, 36 ARIZ. ST. L.J. 527, 530 (2004). The split of authority addresses whether, on remand, the judge should resentence de novo or should address only the issues in accordance with the appellate opinion. See id.; see also United States v. Marmolejo, 139 F.3d 528, 530 31 (5th Cir. 1998) (describing two approaches taken by circuit courts regarding the scope of resentencing). Even if the judge resentences de novo, if the sentence imposed is higher than that originally granted, so long as it is the same judge who imposed both sentences, the presumption should apply. See supra Part IV. 79 Smith, 490 U.S. at 799 (citation omitted).