State v. Bracht

GILBERTSON, Justice

(concurring in part and dissenting in part).

[¶25.] The Court now has before it an important issue of which it took note in State v. Weiker, 366 N.W.2d 823, 829 (S.D.1985), but concluded that it need not address at that time. I agree with the majority that the misconduct of the prosecutor in the action was flagrant and that remand for a sentencing hearing which complies with the original plea agreement is necessary. However, I respectfully part company with the majority .conclusion that the additional step of reassignment of the case to a different sentencing judge is required as a mandated constitutional remedy.

[¶ 26.] The majority opinion concludes that Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), requires a new judge to conduct the resentencing when a case is remanded after it has been found that the prosecutor has breached its duty of keeping to a plea agreement. It is not disputable that a remand for resentencing is one of two options required under Santobello after the prosecutor violates a plea agreement at sentencing. However, whether the same or different judge should conduct the resentencing is disputable. The crux of San-tobello appears to lie in the requirement of remand for resentencing or allowing the defendant to withdraw his plea. The Santobel-lo court fails to mandate, and cites no authority, constitutional or otherwise, for the purported proposition that a different judge is constitutionally required when a plea *183agreement has been breached. United, States v. Wolff, 127 F.3d 84, 87 (D.C.Cir.1997).

[¶27.] The majority adopts its holding from a line of cases which interpret Santobel-lo as automatically requiring a “different judge” to conduct resentencing.2 However, a second line of cases do not interpret Santo-bello as requiring a different judge for resen-tencing without making some sort of further determination. “Where the government violates a plea agreement at sentencing, the usual remedy is a remand for resentencing (citation omitted). Remand to a different judge is not the usual remedy, it is one reserved for ‘unusual circumstances.’ ” United States v. Travis, 735 F.2d 1129, 1132 (9th Cir.1984) (citing United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir.1979) (quoting United States v. Robin, 553 F.2d 8, 10 (2d Cir.1977))). See also Wolff, 127 F.3d at 88. United States v. Sharp, 941 F.2d 811 (9th Cir.1991) (remand for resentencing to same judge after defendant claims breach of plea agreement and court unable to find unusual circumstances which would require a different judge); United States v. Bowler, 585 F.2d 851, 856 (7th Cir.1978) (after acknowledging Santobello, court refused to remand to a different judge for resentencing after prosecutor breached plea agreement).

Therefore, unless Santobello constitutes such a binding precedent, no precedent requires us to command such a reassignment. We hold that Santobello does not. Rather than expressing a holding, the language quoted [in Santobello ] in its entirety mandates nothing. It merely sets forth the two options — specific performance or setting aside of the plea — available to the district judge. It then observes without accompanying reasoning that in the event of specific performance the petitioner in that case “should be sentenced by a different judge.” That hardly amounts to the reasoned proclamation of a rule of general application.

Wolff, 127 F.3d at 87. The Wolff court agreed with the Arnett court which handled the remand for resentencing the same as any other remand “when error is found in district court proceedings.” Id. at 88 (citation omitted).

[¶ 28.] The Travis court was faced with a situation similar to the one at present where the prosecutor breached his plea agreement by failing to “stand mute” during sentencing. The Travis court remanded the case to the same judge for resentencing after concluding there was no evidence of bias on the part of the trial judge and considering the following factors under Robin, supra:

(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of [its] mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected,
(2) whether reassignment is advisable to preserve the appearance of justice, and
(3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.

See also Wolff, 127 F,3d at 88 (“[w]e conclude that these factors are appropriate ones”) .

[¶ 29.] I respectfully submit that a different judge would not be required in the ease now before us after application of the Robin factors to the present facts.3

*1841. Whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of [its] mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected?

[¶ 30.] Here, the question is whether the trial court could reasonably be expected to have substantial difficulty in putting out of its mind the prosecution’s improper comments. The trial court’s commentary at sentencing supports the majority conclusion that the trial court did. not rely on the prosecution’s comments in fixing Bracht’s sentence. After Bracht’s counsel objected to the prosecutor’s comments the trial court stated, “Well, independent of your thoughts, [Mr. Prosecutor], I was thinking along similar lines as I listened to counsel for Mr. Braeht.” The trial court indicated what it did and did not rely upon in sentencing:

The court relied on the pre-sentence report and the history and background provided therein of this particular defendant And in particular, the court was impressed with the frequency of alcohol related driving offenses over the past several years and the appearance that the public would not be protected by anything short of a prison sentence. And I’m not sure what the plea agreement was in this case, whether the state’s attorney was to support a request for a suspended imposition of sentence or for no penitentiary time, but comments of the state were not the impetus of the court’s sentence and I would lay no weight on the comments.

(emphasis added).

[¶ 31.] The court in United States v. Heubel, 864 F.2d 1104 (3rd Cir.1989), did not expressly adopt the Robin test. The court stated that it felt it did not have to adopt the test because the defendant’s arguments did not satisfy its requirements. Id. at 1112. However, the court found no need for requiring a new judge where the sentencing court impermissibly considered defendant’s failure to waive his Fifth Amendment rights against self-incrimination in formulating his sentence. “It is no more difficult for a judge to discount an impermissible factor in sentencing than to ignore evidence at trial that was heard and excluded on proper objection.” Id. (citation omitted).

[¶32.] Other courts have refused to remand to a different judge where the original judge made an error of law by considering an improper sentencing factor. United States v. Chatlin, 51 F.3d 869 (9th Cir.1995); United States v. Donaghe, 50 F.3d 608 (9th Cir. 1994). Thus, where a judge who has committed the original error can be expected to resentence a defendant fairly, even more so should a judge who did not commit an error.

[¶ 33.] It seems evident that since the trial court in this case was not influenced by the prosecutor’s comments at the original sentencing, the trial court would not consider them upon resentencing.

2. Whether reassignment is advisable to preserve the appearance of justice?

[¶ 34.] The appearance of justice under the present facts is preserved by remanding to the original judge. The trial court did not rely on any improper factors or inadmissible evidence in sentencing Braeht. The trial court was influenced by, among other factors, the pre-sentence report which indicated that Braeht was receiving a new DUI at the rate of approximately one per year over the past three years. Therefore, assuming as we must, that the trial court will perform as required and consider the plea agreement, Braeht will not be prejudiced by remanding the case to the same judge. See United *185States v. O’Brien, 18 F.3d 301, 304 (5th Cir. 1994) (remanding to same judge for resen-tencing and quoting United States v. Denson, 603 F.2d 1143, 1149 (5th Cir.1979) (“The district judge mil, we are confident, perform his duty. It is unseemly for us to either assume that he will take particular course or to suggest what he should do so long as he reaches his decision in accordance with the controlling statute.”)).

3. Whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness?

[¶ 35.] In considering the case now before this Court, a guilty plea, when analyzed in the context of this third factor, by itself, should not require a different judge. “[W]hile there is little duplication of effort involved in remanding to a different judge in the context of a guilty plea (as opposed to a lengthy trial), this criterion alone is not enough to overcome the other factors favoring remand to the original judge.” Heubel, 864 F.2d at 1112 (citation omitted). The Ninth Circuit reaffirmed its reliance on the factors in Robin in Arnett, 628 F.2d at 1165. With regard to the third factor, the Arnett court stated:

A new judge would have to learn about the defendant, his background, the plea bargain and the sentence.4 In considering whether to reduce the sentence, the new judge could only guess what had led the first judge to impose the original sentence. As there is little appearance of unfairness here, the benefits, if any, of remand to a different judge appear slight in comparison to the disadvantages.

Id. at 1166. “[T]here is reason to believe that reassignment would entail at least some waste and duplication, possibly out of proportion to whatever molecular gain there might be in preserving the appearance of fairness.” Wolff, 127 F.3d at 89.

[¶ 36.] I would submit that the above cited rationale applies with equal force to the present facts.5

Conclusion

[¶ 37.] Since the inception of this Court, it has from time to time reversed a trial court for errors committed against a criminal defendant which were found to be prejudicial. Yet one must look long and hard to find a case where the remand was designated to be to another judge rather than the original trial court which committed the error. We have assumed that the trial court will correct its original error and not retaliate against the defendant who obtained the reversal from this Court. What then is the justification for continuing on with this procedure and yet automatically ordering a remand to another judge where the error was made by the prosecutor, not the trial court, and not even considered by the trial court?

[¶ 38.] The cases cited above hold that the defendant must show “unusual circumstances” or some other valid reason in order to require remand for resentencing by a different judge. Sharp, 941 F.2d at 817; Heubel, 864 F.2d at 1113. Braeht makes no claim of bias or reliance on impermissible factors by the trial court and the majority explicitly finds there is none. Therefore, Braeht has failed to demonstrate any circum*186stances which require a different judge to conduct his resentencing.

[¶ 39.] The mandates of Scmtobello can still be fulfilled by allowing the same judge to resentence so long as there is no showing of bias, nor unusual circumstances justifying a different judge.6 For the above reasons I respectfully dissent in part.

. See United States v. Carrero, 77 F.3d 11 (1st Cir.1996); United States v. Van Horn, 976 F.2d 1180, 1184 (8th Cir.1992) (“[U]nder Santobello, the fact that the district court may not have been influenced by the government's comments is immaterial”); United States v. Brody, 808 F.2d 944, 948 (2dCir.l986) ("[T]he egregious nature of such a breach requires that we order the additional step of reassigning the proceedings to a different sentencing judge”).

. The majority concludes at n. 1 that it "fail[s] to perceive how Robin is even applicable” since Robin was not a breach of plea bargain case and did not explicitly cite Santobello. Even though the Robin court did not specifically address a prosecutor's breach of plea bargain, the court did intend the factors to apply to a broad range of errors. Furthermore, the Robin’s court did address the ability of the sentencing judge to fairly resentence the defendant in holding that remand to a different judge is not required in all cases. Robin II, 553 F.2d at 11.

The majority at nl goes on to disagree with my analysis because Santobello does not cite the three Robin factors developed by the Second Circuit. In response, I would point out the Rob*184in factors were not authored until six years after Santdbello was decided.

Several jurisdictions have adopted the Robin test for a variety of reasons. Wolff, 127 F.3d at 88; Arnett, 628 F.2d at 1165; Bembenista v. United States, 866 F.2d 493 (D.C.Cir.1989); United States v. White, 846 F.2d 678, 698 (11th Cir.1988); Maldonado Santiago v. Velazquez Garcia, 821 F.2d 822, 832 (1st Cir.1987); Simon v. City of Clute, Texas, 825 F.2d 940, 943-44 (5th Cir. 1987).

Application of the Robin test does not always result in remand to the original sentencing judge. In Bercheny v. Johnson, 633 F.2d 473, 476-77 (6th Cir.1980), after a review of the Robin factors, the Bercheny court determined it appropriate to remand to another judge.

. South Dakota follows the same philosophy: When determining a fitting sentence, the sentencing court should acquire a thorough acquaintance with the character and history of the man before it. This study should examine a defendant’s general moral character, mentality, habits, social environment, tendencies, age, aversion to or inclination to commit crime, life, family, occupation, and previous criminal record.

State v. Chase in Winter, 534 N.W.2d 350, 354-55 (S.D.1995) (citations omitted).

. Recently in Black v. Class, 1997 SD 22, ¶29, 560 N.W.2d 544, 551-52, this Court had cause to comment on the effect of improper prosecutorial conduct which results in having to undertake for a second time, proceedings which should have been completed correctly the first time:

The defendant has been incarcerated since 1991 for a death which may or may not be found to be justifiable self-defense when all relevant facts are considered. Prosecutors and law enforcement will be required to again put forth substantial time to prepare for retrial as will the defense. The public is forced to underwrite the expense of a re-trial.

. Although the conduct of the prosecutor, not the trial judge, is found hy the majority to be "flagrant,” there is no suggestion that the source of the problem, the prosecutor, rather than the trial judge, be replaced for a second sentencing hearing. SDCL 7-16-2 authorizes the appointment of an acting state’s attorney where the state's attorney is "unable to attend to his duties or is adversely interested or disqualified....”

Given the majority opinion, we will now have a remand to another judge and the same prosecutor for resentencing even though the prosecutor, not the original sentencing judge, was the cause of the constitutional violation. Although the majority finds this to be "sound logic," it will be interesting to see what happens if the same prosecutor conducts himself in the same manner as the second sentencing hearing and the new sentencing court states it will ignore these improper remarks and proceeds to sentence the defendant. What then? Again impose the majority’s "constitutional sanction” on the prosecutor by removing the second sentencing judge for the upcoming third sentencing with the same prosecutor?