St. John's Law Review Volume 44 Number 2 Volume 44, October 1969, Number 2 Article 8 Constitutional Law--Criminal Procedure--Double Jeopardy Held No Bar to Imposition of Harsher Penalty Upon Retrial--Due Process Mandates Credit for Time Previously Served (North Carolina v. Pearce, U.S. 1969) St. John's Law Review Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview This Recent Development in New York Law is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. RECENT DEVELOPMENTS CONSTITUTIONAL LAW - CRIMINAL PROCEDURE - DOUBLE JEOP- ARDY HELD No BAR To IMPOSITION OF HARSHER PENALTY UPON RE-TRIAL - DUE PROCESS MANDATES CREDIT FOR TIME PREVIOUSLY SERVED. -North Carolina v. Pearce, 395 U.S. 711 (1969). Respondent Pearce was convicted of assault with intent to commit rape and sentenced to a term of 12 to 15 years in prison. Upon seek- ing post-conviction relief, he was awarded a new trial at which he was again convicted and sentenced to an 8 year prison term which, when complemented by the time previously served, amounted to a greater penalty than that originally imposed. Similarly, respondent Rice pleaded guilty to four counts of second degree burglary, and was sentenced to prison for an aggregate term of 10 years for all 4 counts. These judgments were later set aside; respondent was retried on 3 of the original counts, convicted and sentenced to prison for a total of 25 years without compensation for time already served. On appeal, the Supreme Court, upholding the lower courts' re- versals of both sentences, held that while neither the double jeopardy nor the equal protection clause imposes an absolute bar to a more severe sentence, the constitutional guarantee against multiple punish- ment requires that the punishment already exacted be fully credited upon resentencing, and that the sentencing court include affirmative findings to support their action when augmenting the original sentence. The problems illuminated by the companion cases of North Carolina v. Pearce1 and Simpson v. Rice2 are not of recent conception. As early as 1873, the Court construed the double jeopardy clause to prohibit more than one punishment for the same offense. In Ex parte Lange3 the defendant, sentenced to a prison term and fined, had paid the fine before discovering that state law provided for either imprison- ment or fine. Recognizing that no man lawfully can be twice punished for the same offense, the Court ordered the defendant's release from prison. Similarly, in United States v. Benz,4 the defendant successfully petitioned to have his sentence reduced from 10 months to 6. While the issue presented involved the district court's power to decrease a convict's sentence, the Supreme Court observed by way of strong dicta, 1395 U.S. 711 (1969). 2 Id. The Supreme Court consolidated the two appeals and rendered one opinion. 3 85 U.S. (18 Wall.) 163 (1873). The Lange Court established a defendant's immunity from an increased sentence in the absence of a self-initiated appeal. This right, in the Court's view, was founded upon the constitutional prohibition against double jeopardy. 4282 US. 304 (1931). RECENT DEVELOPMENTS that an increase affecting the sentence upon a valid conviction would be violative of the double jeopardy clause in that the defendant would be subjected to double punishment for the same offense." Despite such broad propositions, the Court has never squarely held the imposition of an increased penalty upon retrial to be per se viola- tive of the Constitution. For example, in Murphy v. Massachusetts,8 upon vacation of the original sentence, the defendant received a sen- tence greater than that which had been set aside. On appeal, the Court, ignoring the "chilling effects" of such a rationale upon the defendant's right of appeal, held that as the second sentence resulted from the defendant's own initiative, the former conviction and partial service of sentence constituted no bar to the imposition of a greater sentence. The Murphy rationale was invoked and implicitly reaffirmed in Stroud v. United States,7 wherein the defendant received the death penalty upon retrial following the successful appeal of a life sentence. That case, however, argued on the theory that the defendant was twice put in jeopardy for the identical offense, did not present the Court with the question of whether risk of an increased penalty on retrial con- stitutes a second punishment for the same offense. So distinguished, Stroud is assertive of the proposition that a sustained attack upon an original conviction does not, by force of the double jeopardy clause, absolutely immunize the defendant from reprosecution. Green v. United States8 greatly clarified the intention of the Court in Stroud. A conviction of second degree murder was reversed on 5 Id. at 307. The defendant's sentence may not be increased once it has commenced. To compel him to risk an increased sentence in order to exercise his right to a fair trial is equivalent to requiring that the defendant relinquish the immunity accorded the prior sentence in order to exercise his constitutional rights. 6 177 U.S. 155 (1900). 7251 U.S. 15 (1919). Robinson v. United States, 324 U.S. 282 (1945), has also been cited as supportive of the validity of increased sentences upon retrial. In Robinson, the defendant's sentence was increased upon retrial from life imprisonment to death. The court of appeals judgment was affirmed on certiorari without reference to the increased sentence. Indeed, the sole question presented and resolved related to the court's statutory authority to impose the death sentence under the Federal Kidnapping Act, 18 U.S.C. §§ 408, 414(a), 419(a)(b) (1940), as amended, 18 U.S.C. §§ 10, 1201-02 (1964). Accordingly, Robinson would be of doubtful force as authority for allowing an increase upon retrial. 8 355 U.S. 184 (1957). The Court had earlier held that a defendant, successful on appeal, may be exposed to a sentence as severe as that previously imposed, but neither condoned nor prohibited a more severe penalty. See United States v. Ball, 163 U.S. 622 (1896). A second trial after the defendant's appeal had been justified on the grounds that the accused had "waived" his plea of former jeopardy. See Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873). However, in the circumstances of Green a new trial would be barred following a successful appeal. Insofar as the first verdict was "an implicit acquittal" of the original charge, the Court rejected arguments that Green had "waived" the constitu. tional prohibition against double jeopardy. See generally Mayers & Yarborough, Bis Vexari, New Trials and Successful Prosecutions, 74 HAv. L. R1v. 1 (1960). ST. JOHN'S LAW REVIEW [VOL. 4 appeal, and the defendant was retried, found guilty of first degree murder and sentenced to death. The Supreme Court, reasoning that the initial conviction implied acquittal of any higher degree of the same crime, reversed, holding the second conviction violative of the double jeopardy protection against reprosecution. Green could be reprosecuted, but for no crime greater than second degree murder. While the issue of reprosecution had been determined, the question of resentencing re- mained for future resolution. The guarantee against double jeopardy was held to impose no restrictions upon the length of a sentence imposed upon reconviction. Indeed, as Stroud had previously demonstrated, it had been long estab- lished that the courts were authorized to impose whatever sentence the law prescribed. Marano v. United States9 was the first decision to take issue with what had theretofore remained within the unfettered discre- tionary power of the courts. The defendant had been sentenced to three years in prison upon conviction in a district court for receiving stolen goods in interstate commerce. Upon appeal, the conviction was vacated ° and a new trial awarded at which the defendant was recon- victed and sentenced to a five year term. The judge, who had presided at both trials, noted, as the basis for the longer sentence, the evaluation of the presentence report and the additional testimony produced at the second trial." However, reversing on appeal, the First Circuit held that the increased term was improper since the introduction of the addi- tional testimony impinged upon the defendant's unfettered right of appeal. 12 Manifestly, absent "substantial justification" a defendant should not be deterred in the exercise of this right due to the danger that this might result in the imposition of a direct penalty. Presaging things to come, however, the court further concluded by way of dicta that it was not inappropriate for a trial court to consider subsequent 9 374 F.2d 583 (Ist Cir. 1967). 10 Kitchell v. United States, 354 F.2d 715 (Ist Cir. 1965). Marano was tried and convicted along with several other defendants; all but one were successful on appeal. 11 It is not without significance that where a subsequent plea of not guilty is inter- posed at the second trial, the state, in view of such contested facts, is compelled to present further independent evidence of the defendant's guilt. Nevertheless, the Marano court rejected such additional testimony as a basis of an increased sentence, despite the settled doctrine that the state may enter new evidence against the defendant at retrial. While such a distinction may appear overly refined, it is indeed constitutionally sound. See United States v. Shatwell Mfg. Co., 355 U.S.