concurring in part and dissenting in part.
In my view, the trial judge’s comments at the time of sentencing create at the very least an appearance that Mr. Lindsey was being punished for exercising his constitutional rights not to plead guilty and to demand a jury trial. For this reason, I respectfully dissent from that part of the majority opinion holding that “the court’s remarks.. .provide no reason to suspect the court was punishing Lindsey for exercising” those rights, Maj. Op. at 582, and would remand the case to the trial court solely for the purposes of resentencing. In all other respects, I concur in the majority opinion.
In United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138(1968), the United States Supreme Court was faced with a challenge to a provision in the Federal Interstate Kidnapping Act which allowed for the death penalty if the jury so decided. Jackson challenged the provision, contending that the fact that the death penalty could only be imposed by the jury stood as a deterrent to his exercise of his constitutional right to a jury trial. The court agreed, stating:
The inevitable effect of any such provision, is, of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. If the provision had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional.
Id. at 581, 88 S.Ct. 1209.
Thus, it is now well settled that “[a] court may not use the sentencing process to punish a defendant, notwithstanding his guilt, for exercising his right to receive a full and fair trial.” State v. Vaughn, 940 S.W.2d 26, 29 (Mo.App. S.D. 1997)(quoting United States v. Sales, 725 F.2d 458, 460 (8th Cir.1984)). A defendant’s exercise of his constitutional right to trial by jury to determine his guilt or innocence must have no bearing on the sentence. State v. Martin, 852 S.W.2d 844, 855 (Mo.App. W.D. 1992) (quoting Hess v. United States, 496 F.2d 936, 938 (8th Cir.1974) (emphasis added)). Indeed, due process requires that vindictiveness against a defendant for having exercised his constitutional rights “must play no part in the sentence he receives.” Alabama v. Smith, 490 U.S. 794, 798 109 S.Ct. 2201, 2204, 104 L.Ed.2d 865, 872 (1989) (quoting North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656, 669 (1969) (emphasis added)).
The trial court’s comments in this case — relating to Mr. Lindsey’s failure to “to believe or accept the testimony of any of the state’s witnesses,” that Mr. Lindsey’s testimony at trial was “completely at odds with all the [state’s] evidence,” and that he accepted no responsibility or didn’t acknowledge any wrongdoing during the *583trial — at the very least are unclear, and at worst give rise to an inference that Mr. Lindsey’s sentence was enhanced for exercising his constitutional rights. “The ‘[augmentation of sentence’ based on a defendant’s decision to ‘stand on [his] right to put the government to its proof rather than plead guilty1 is clearly improper.” United States v. Hutchings, 757 F.2d 11, 14 (2d Cir.1985)(quoting United States v. Araujo, 539 F.2d 287, 291-92 (2d Cir.1976)). To avoid any chilling effect on the exercise of basic constitutional rights, it is essential for the trial court to avoid even the appearance that a defendant’s sentence is being enhanced for exercising his right to stand trial. Thurston v. State, 791 S.W.2d 893, 896 (Mo.App. E.D.1990) (quoting United States v. Medina-Cervantes, 690 F.2d 715, 717 (9th Cir.1982)).
The facts in the instant appeal are strikingly similar to those in Hess v. United States, 496 F.2d 936 (8th Cir.1974). In that case, at the time of sentencing, the trial judge stated:
There has been some suggestion that leniency ought to be shown... It has been my experience in life that when we seek leniency, when we seek to be absolved of our sins, we must first admit our sins and in this case there has been no admissions of sins. There has been, on the contrary, a determination to pursue every remedy....
Id. at 938. The defendants argued on appeal that the trial court’s comments indicated that the trial judge enhanced their sentences because they had opted to stand trial rather than admit their guilt. The Eighth Circuit concluded that “the tenor of the court’s observation is not entirely clear.” As a result, the court declared:
[F]aimess dictates that these proceedings be remanded to the district court for the purpose of permitting [the trial judge] to determine whether the sentences were enhanced [based on defendants’ failure to plead guilty]. Should the judge find upon an objective evaluation of all pertinent circumstances that the sentences were influenced by that improper consideration, then he shall set them aside and resentence. On the other hand, should the judge conclude that he did not penalize appellants for their insistence on trial, he shall file an appropriate order so finding.
Id. at 941.
Similarly, in United States v. Medina-Cervantes, 690 F.2d 715 (9th Cir.1982), the trial court made the following statements at the time of sentencing:
It’s obvious to me that this man wanted a trial, with all his constitutional rights, and he insisted upon them and he had them. To the cost to the government for the jury, with 40 jurors, $30 a piece, is $1200, figure that transportation was $1500, cost defenders, cost of Schoon-over, who nobody would stipulate, the fingerprints on the card, no pictures having been made.
All I can see is he was just thumbing his nose at our judicial system, stands there he could [sic] care less. Just a way of life, I guess. Be that as it may.
Id. at 716. Thereafter, in imposing a fine upon the appellant, the trial court stated “its purpose was to reimburse the government for the cost of the jury trial....” Id. On appeal, the court found that the trial judge’s comments gave rise to an inference that the defendant “was punished more severely because of his assertion of the right to trial by jury.. .Accordingly, in order to avoid the ‘chilling effect’ upon the exercise of the right to trial presented by even the appearance of such a practice, we conclude that the sentence imposed on Medina-Cervantes must be vacated.” Id. at 716-17 (emphasis added). The case was then remanded for resentencing.
The facts in Hess and Medincb-Cer-vantes are almost identical to those in the instant case. Although I do not doubt the good faith of the trial court, the comments imply that Mr. Lindsey’s sentence may have been enhanced for challenging the state’s evidence and for testifying as to his own recollection of the incident. Any enhancement of his sentence based on those factors serves to punish Mr. Lindsey for *584exercising his right to a full and fair trial. “[S]ince the tenor of the court’s observation is not entirely clear, and because the remedy is relatively painless, [I] believe the trial court should be afforded an opportunity to fully examine [its] sentencing procedure and to consider the factors which motivated the sentence imposed.” Hess, 496 F.2d at 938. For the public to have confidence that the constitutional right to a jury trial is sacrosanct, even the appearance that punishment is being enhanced because of exercise of that right must be remedied. Otherwise, the protection of the Fifth Amendment, declaring our right to plead not guilty, and the Sixth Amendment, declaring the right to a jury trial, are “of no value, and... might as well be stricken from the Constitution.” Weeks v. United States, 232 U.S. 383, 393, 34 S.Ct. 341, 344, 58 L.Ed. 652(1914).
For these reasons, I would remand the case to the trial court solely for the purposes of resentencing. In all other respects, I concur in the majority opinion.
Judge EDWIN H. SMITH and Judge RIEDERER, concur.