State v. Smith

FERNANDEZ, Chief Judge,

dissenting.

Because I believe the sentence imposed by the trial court is contrary to Rule 26.14, Ariz.R.Crim.P., 17 A.R.S., and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), I dissent.

Rule 26.14 provides that when a conviction has been set aside on appeal, a sentencing court is precluded from imposing “a sentence for the same offense ... which is more severe than the prior sentence unless it concludes, on the basis of evidence concerning conduct by the defendant occurring after the original sentencing proceeding, that the prior sentence is inappropriate.” (Emphasis added.) The rule was intended to be this state’s embodiment of the resentencing standards adopted in Pearce. Comment to Rule 26.14.

Like Pearce, the rule contemplates those situations in which a greater, more severe punishment upon resentencing after a successful appeal may be warranted and constitutional. Because of the presumption of vindictiveness raised when the punishment is more severe, however, Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984) and United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), the reasons for the increased severity must be carefully articulated by the sentencing judge. Those reasons may be based upon information made available to the court subsequent to the first trial regarding the defendant’s life, health, habits, conduct, and mental and moral propensities. See State v. Macumber, 119 Ariz. 516, 582 P.2d 162, cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978); State v. Cruz, 123 Ariz. 497, 600 P.2d 1129 (App.1979).

We do not have that situation here. In fact, the trial judge expressly stated that he found no basis in appellant’s subsequent record for increasing his sentence. The court was unable to articulate any conduct or cite to any facts or information which became available after the initial sentencing that would justify the imposition of a greater sentence. He simply concluded that the presumptive as opposed to a mitigated term of imprisonment should be imposed. In considering the ramifications of imposing the presumptive term in light of Pearce, the court stated that Pearce was not violated because the ten-year term of imprisonment was not in fact greater than the sentence previously imposed because appellant would no longer be required to serve a 15-year sentence before he commenced the ten-year sentence. This conclusion, which has been ratified by the majority, is incorrect.

*127There is no question but that the charge to which appellant pled guilty is the “same charge” for purposes of Rule 26.14 as count two of the initial conviction. There is also no question that appellant was originally sentenced to a mitigated term of five years’ imprisonment on this charge, although it was consecutive to the 15-year sentence imposed on count one, and that he has now been sentenced to ten years’ imprisonment on this charge. It is fallacious to say that the ten-year sentence is less than the five-year sentence. I do not believe that such a clearly greater sentence can be imposed based on the rationale that appellant was previously sentenced to 15 years’ imprisonment on a charge to which he is not now pleading guilty simply because the practical effect is that he will serve less time in prison. Nor do I believe that the more severe term can be justified by considering the absence of a conviction for sexual conduct to be a change of circumstances.- Neither the rule nor Pearce was intended to apply to such changes.

The facts of this case were undoubtedly known to the prosecution, yet appellant was offered a plea agreement for the less serious of the two charges, and that agreement was accepted. The prosecution should have anticipated the sentencing consequences of that agreement in light of appellant’s prior convictions and sentences and the limitations imposed by Pearce and Rule 26.14. Despite the state’s arguments to the contrary, it is obvious that appellant’s sentence for attempted sexual conduct was twice as long after his successful appeal. Pearce and Rule 26.14 require that it be modified to a term of five years’ imprisonment.