dissenting.
I respectfully dissent.
I would affirm the judgment of the district court granting the writ of habeas corpus ordering release, unless Waring is sentenced to a period of imprisonment not exceeding five years.
The district court painstakingly reviewed the state trial record before us. That record demonstrates that Waring entered a guilty plea under an agreement providing that he would receive a sentence of two years for involuntary manslaughter, that execution of the sentence would be suspended, that he would serve sixty days in jail and be placed on five years supervised probation. When Waring appeared and attempted to withdraw his guilty plea, the trial court refused to follow the plea agreement because the pre-sentence investigation report, which was completed after Waring entered his plea, reflected that Waring had a criminal record. The judge told Waring he could withdraw his plea, and said if he did not do so, “I will assure you that my disposition of this will be much worse than probation because I will sentence you to five years.” The trial judge also told Waring that if he withdrew his plea, “we are going to have a speedy trial, very quickly.”
The district court referred to the facts above, and further stressed the following additional factors: (1) the trial judge knew that Waring was a twice-convicted felon before questioning Waring when he requested the withdrawal of his plea; (2) the trial judge threatened to increase Waring’s sentence out of anger because Waring asserted his constitutional right to trial by jury; and (3) the trial judge further threatened Waring by predicting that a jury would sentence him to ten or fifteen years. After Waring was found guilty at trial, the judge sentenced him to ten years in prison.
I cannot conclude that the district court erred in finding that these bare facts demonstrated vindictiveness, and that the trial judge penalized Waring for asserting his right to trial. I am convinced that the trial judge’s clear statement to Waring before trial that he would be sentenced to five years established a baseline sentence. The ten-year sentence the judge ultimately imposed was harsher than this baseline.
For these reasons, and on the basis of the carefully articulated opinion of the district court, I would affirm the granting of the writ.