State v. Bawdon

HENDERSON, Justice

(concurring in part, dissenting in part).

I agree with that aspect of the opinion pertaining to the admission of evidence and the authorities cited in support thereof.

Furthermore, I agree that this criminal offense cries out for a severe sentence. However, I would remand the sentencing procedure to reduce the 25-year sentence to 20 years upon the grounds and for the reason that the trial judge punished appellant for taking his case before a jury. By plea bargain, the sentencing judge reviewed the punishment of 20 years — to be just. By virtue of requesting the jury trial, after the plea bargain was lawfully set aside, the sentencing judge reviewed the punishment of 25 years — to be just. I do not view Bawdon as having stopped payment on his check because he exercised a writ of habeas corpus, which was duly granted.

Our State Legislature has adopted plea bargaining per SDCL 23A-7-8. Apparently, the State Legislature saw fit to adopt the plea bargaining process as state law. It is appreciated by this author that judicial economy is one of the reasons the State Legislature so adopted this policy. True, the trial judge tried to protect his flank from the Pearce rule by expressing that he was not being vindictive. And I am willing to give him the benefit of the doubt and say that he was not being vindictive.

Reasons for a more severe sentence, then, affirmatively appearing on the record, what are they? Only the economy angle was touched upon by the trial court. That consideration, in and of itself, should not be a sufficient reason for increasing the sentence by five years of confinement.

This author abides in the conviction that:

[A] jury trial is the backbone of our entire judicial system and every man, woman, and child has the right to put the State on its proof. The process of the jury trial is one of the few exceptions where we lawyers and judges still permit ordinary citizens to involve themselves in the judicial branch of government. Judges should not punish citizens for asking for jury trials.

State v. Huettl, 379 N.W.2d 298, 306 (S.D.1985) (Henderson, J., dissenting in part, concurring in result in part). “Whether a defendant exercises his constitutional right to trial by jury to determine his guilt or innocence must have no bearing on the sentence imposed.” State v. Braun, 351 N.W.2d 149, 153 (S.D.1984) (Henderson, J., dissenting). To support that statement in Braun, I cited these authorities: Hess v. United States, 496 F.2d 936 (8th Cir.1974); United States v. Marzette, 485 F.2d 207 (8th Cir.1973); United States v. Stockwell, 472 F.2d 1186 (9th Cir.), cert. denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973); United States v. Hopkins, 150 U.S.App.D.C. 307, 464 F.2d 816, 822 (1972); Scott v. United States, 136 U.S.App.D.C. 377, 419 F.2d 264, 269-74 (1969); Baker v. United States, 412 F.2d 1069, 1073 (5th Cir.1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970); United States v. Wiley, 278 F.2d 500, 504 (7th Cir.1960). See also, State v. Mollberg, 310 *490Minn. 376, 246 N.W.2d 463 (1976); Drinkwater v. State, 73 Wis.2d 674, 245 N.W.2d 664 (1976).

I fully appreciate that the Pearce rule, adopted in State v. Grey Owl, 316 N.W.2d 801 (S.D.1982), was under a retrial circumstance and this case is a plea bargaining scenario. Nonetheless, the writ of habeas corpus, an eternal friend of the oppressed, unlawfully imprisoned, and illegally restrained, should never be made unavailable for fear of an increased sentence in the event of its success.