Murl Lynn Allen was charged by bill of information with aggravated battery and theft of property valued over $100, in violation of R.S. 14:34 and R.S. 14:67. At arraignment, defendant waived counsel and entered pleas of not guilty. Prior to trial defendant again appeared without counsel and, pursuant to a plea bargain for dismissal of the theft charge, entered a plea of guilty to the charge of aggravated battery. The trial judge ordered a pre-sentencing investigation and on April 10, 1981, sentenced Allen to two years in the Natchitoches Parish Jail under a work-release program. Under that program, Allen was to report to jail at 6 p.m. on Fridays and would be released at noon on Sundays.
On June 19, 1981, Allen filed an application for post-conviction relief, seeking to withdraw his guilty plea on the grounds that he was unrepresented and did not understand the ramifications of his guilty plea. A hearing was held on July 10, 1981 which resulted in the trial court's granting defendant's motion to withdraw his guilty plea. Defendant then stood trial before a jury on April 27, 1982 and was convicted of aggravated battery. Prior to sentencing the trial judge recused himself and the case was transferred back to Judge Cunningham,
Assignment of Error No. 5
By this assignment defendant contends that he was denied due process of law. Allen argues that the substantial increase in sentence (from 2 years in parish prison under a work-release program to 3 years in the custody of the Department of
In Pearce, the U.S. Supreme Court framed the issue as follows:
The Court concluded that neither the double jeopardy provision nor the rights of equal protection serve as an absolute bar to the imposition of a more severe sentence upon reconviction.
A trial judge is not constitutionally precluded, in other words, 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." 395 U.S. at 723, 89 S.Ct. at 2079, 23 L.Ed.2d at 662; quoting, Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 1082, 93 L.Ed.2d 1337 (1949). (emphasis added)
The Pearce Court cautioned, however, that the inquiry did not end with a consideration of double jeopardy or equal protection, but that the requirements of due process must also be considered. The Court held that due process of law prohibits vindictiveness or retaliation against a defendant who has successfully attacked his first conviction, since the fear of such vindictiveness or retailiation by way of imposition of a harsher sentence would deter a defendant from exercising his right to appeal or collaterally attack his first conviction. The Court concluded:
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. 395 U.S. at 726, 89 S.Ct. at 2081, 23 L.Ed.2d at 670.
In the instant case, though a pre-sentence investigation was ordered after the guilty verdict was rendered, there is absolutely no indication in the record of the sentencing hearing of any "identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding" which would serve as a basis for the increased sentence. We therefore conclude that, since Allen's sentence was significantly increased without articulated reasons for the more severe sentence as required by North Carolina v. Pearce, supra, we must vacate the sentence in this case and remand to the trial court for re-sentencing consistent with this opinion. See also, State v. Rutledge, 259 La. 543, 250 So.2d 734 (1971); State v. Franks, 391 So.2d 1133 (La.1980); State v. Upton, 396 So.2d 1309 (La.1981).
In its brief, the State relies upon Frank v. Blackburn, 646 F.2d 873 (5th Cir.1980); cert. denied, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 123, for the proposition that Pearce is inapplicable to the case at bar. The State's reliance, however, is misplaced.
First, the facts in Frank are totally inapposite to those of the instant case because there was no re-trial or re-sentencing in Frank. Jimmy Frank was tried and convicted of armed robbery; once prior to trial and once during trial Frank was offered plea bargains with the judge guaranteeing a 20-year sentence in return for a plea of
Second, the State overlooked the fact that the Pearce decision actually involved two cases which presented the same issue of permissibility of a harsher sentence upon re-sentencing. The second case, Simpson v. Rice, involved a factual situation virtually identical to the case at bar. Rice had pled guilty to four separate charges of second-degree burglary and was sentenced to a total of ten years. Two and one-half years later, the guilty pleas and judgments thereon were vacated on the ground that Rice had not been accorded his constitutional right to counsel. Rice then went to trial on three of the charges, was convicted, and was given sentences totalling twenty-five years. The U.S. Supreme Court reached the same conclusions in Rice as it did in Pearce.
Assignments of Error Nos. 3 and 4
In these assignments of error, the defendant first contends that the trial court improperly relied upon previous convictions in imposing sentence. The defendant argues that the prior convictions should not have been used because all were obtained without benefit of counsel.
Had these convictions been used to enhance defendant's sentence under the multiple-offender statute, R.S. 15:529.1, there might be some merit to this contention, but that is not the case. Similarly, defendant cannot complain of the consideration of these convictions insofar as the first sentence was concerned because that sentence is not before us. We note, however, that La.C.Cr.P. art. 875(A)(1), in dealing with pre-sentence investigation reports, specifically directs the probation officer preparing the report to inquire into "... the defendant's history of delinquency or criminality..." The first pre-sentence investigation, therefore, properly contained information regarding defendant's prior arrests and convictions.
Insofar as the imposition of sentence after re-conviction is concerned, the defendant is correct that his previous convictions should not have been a consideration in imposing the harsher sentence. As explained above, only conduct occurring after the time of the original sentencing can serve as a basis for the imposition of a harsher sentence upon re-conviction. North Carolina v. Pearce, supra.
The defendant's second contention in these assignments of error is that the trial court failed to comply with La.C.Cr.P. art. 894.1. Defendant contends that the trial court did not consider mitigating circumstances as brought out in the trial testimony, as indicated in the pre-sentencing investigation, and as testified to by defendant during the sentencing hearing. Since we have already held that the case must be remanded for re-sentencing, including a full articulation for the record of the basis for any sentence imposed, we do not reach defendant's argument that the sentencing court failed to comply with La.C.Cr.P. art. 894.1.
For the reasons assigned above, the sentence is vacated and the case remanded for re-sentencing in compliance with this opinion.
VACATED AND REMANDED.
DENNIS, J., concurs.
LEMMON, J., concurs and assigns reasons.
LEMMON, Justice, concurring.
The trial judge perhaps made a tactical mistake by exercising his discretion in favor
Nevertheless, there is a suggestion that the original two-year sentence with work release on weekdays was part of a plea bargain.