No. 12075
I N THE SUPRME C U T O T E STATE O MONTANA
OR F H F
1973
THE STATE O M N A A
F OTN,
P l a i n t i f f and Respondent,
-vs -
JERALENE HENRICH,
Defendant and Appellant.
Appeal from: D i s t r i c t Court o f t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
Honorable Robert Wilson, Judge p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
John L. Adams argued, B i l l i n g s , Montana
Amicus Curiae
David J. Pa.tterson argued, Missoula, Montana.
For Respondent:
Hon. Robert L. Woodahl, Attorney General, Helena,
Montana.
Jonathan B. Smith argued, A s s i s t a n t Attorney General,
Helena, Montana.
Harold F, Hanser, County Attorney, B i l l i n g s , Montana,
Submitted: March 27, 1973
Decided :
2 4 1973
F i l e d :APR
2 4 1973
M r , J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court,
This i s an appeal from a f i n a l order of t h e Sentence
Review Division of t h e Montana Supreme Court entered on November
16, 1972, i n Deer Lodge, Montana,
Defendant, J e r a l e n e Kye Henrich, was convicted by a j u r y
i n t h e d i s t r i c t c o u r t of Yellowstone County on March 5 , 1971,
of t h e crime of manslaughter i n connection with t h e d e a t h of
h e r two year old stepson, Carl William Henrich, Jr. On March
19, 1971, t h e d i s t r i c t c o u r t imposed a sentence o f two y e a r s t o
be s e w e d i n t h e Montana S t a t e p r i s o n a t Deer Lodge, Montana, with
t h e l a s t year of t h e sentence suspended. This Court, on June 8,
1972, affirmed t h a t conviction. S t a t e v. Henrich, 159 Mont. 365,
498 P.2d 124, 29 %.Rep, 445, Although t h i s Court has power t o
modify sentences under s e c t i o n 95-2426, R.C.M, 1947, no i s s u e was
r a i s e d a s t o sentence on appeal and t h i s Court d i d n o t consider
t h e matter.
A f t e r affirmance of t h e judgment, defendant through counsel
a p p l i e d f o r review of t h e sentence by t h e Sentence Review Division
of t h e Supreme Court under t h e provisions of s e c t i o n 95-2502,
Defendant was a t a l l times represented by counsel and
h e r c a s e was reviewed by t h r e e d i s t r i c t judges s i t t i n g a s t h e
Sentence Review Division. Their d e c i s i o n and o r d e r provides i n
pertinent part:
"The sentence be increased t o a term of f i v e
(5) y e a r s ,
11
This c o u r t can see no t h e r a p e u t i c v a l u e t o t h e
sentence a s i t now s t a n d s , W e f e e l t h e defendant
i s i n need of e x t e n s i v e treatment and c a r e , The
b e s t way t o achieve t h i s would be t o i n c r e a s e t h e
sentence t o allow t h e defendant t o r e c e i v e t h e
necessary treatment, guidance and t r a i n i n g . 11
From t h a t d e c i s i o n and o r d e r defendant b r i n g s t h i s appeal,
p e t i t i o n i n g t h i s Court t o v a c a t e t h e sentence of t h e Sentence
Review Division.
In addition to being represented by her own counsel, a
representative of the Montana Defender Project, Professor David
J. Patterson of the University of Montana School of Law, was
granted leave by this Court to file Brief Amici and argue orally
an behalf of defendant, Jeralene Kye Henrich.
The decision and order of the Sentence Review Division
was made pursuant to provisions of section 95-2503, R,C.M. 1947,
which provides in pertinent part:
"The review division shall, in each case in which
an application for review is filed in accordance
with 95-2502, review the judgment so far as it re-
lates to the sentence imposed, either increasing or
decreasing the penalty, and any-other sentence imposed
on the person at the same time, and may order such
different sentence or sentences to be imposed as could
have been imposed at the time of the imposition of the
sentence under review, or may decide that the sentence
under review should stand. * * * Time served on the
sentence reviewed shall be deemed to have been served
on the sentence substituted. The decision of the
review division in each case shall be final and the
reasons for such decision shall be stated therein,11
(Emphasis added.)
That the provisions of section 95-2503, R.C.M. 1947,
grant to the Sentence Review Division the authority to increase
as well as decrease sentences previously imposed is not challenged
by either defendant or amicus. The issues presented on appeal
concern the constitutionality of the statute and the action taken
by the sentence review board. They contend that increasing
defendant's previously imposed sentence is a violation of pro-
tections granted under the Fifth and Fourteenth Amendments of
the United States Constitution and Article 111, See, 27, of the
Montana Constitution. Arguments presented encompass the three
general legal principles of "double jeopardy" , "due process of
law" and "equal protection of law".
Section 95-2503, R.C.M, 1947, was enacted in 1967 and is
identical, for purposes of this appeal, to section 51-196, General
Statutes of Connecticut, The validity of the Connecticut statute
was challenged in 1962 in Kohlfuss v. Warden of Connecticut State
Prison, 149 Conn.692, 183 A.2d 626, 628, cert,den. 371 U.S, 928,
83 Sect. 298, 9 L ed 2d 235. There, petitioner Kohlfuss was
convicted of robbery and sentenced and t h e r e a f t e r a p p l i e d f o r
sentence review, The sentence review c o u r t increased h i s sen-
tence from two t o seven y e a r s , t o t h r e e t o seven years. The
Connecticut Supreme Court i n upholding t h e sentence i n c r e a s e
said :
"The p r o h i b i t i o n a g a i n s t double jeopardy has been
s t a t e d t o mean, fundamentally, t h a t no person s h a l l
be twice t r i e d and punished f o r t h e same offense.
[Citing c a s e s ] . I n t h e f e d e r a l c o u r t s , i t has been
h e l d t o be double jeopardy, and t h e r e f o r e v i o l a t i v e
of t h e f i f t h amendment t o t h e f e d e r a l c o n s t i t u t i o n ,
f o r a t r i a l c o u r t on i t s own i n i t i a t i v e t o i n c r e a s e
t h e penalty once t h e execution of a v a l i d sentence
has begun. [ C i t i n g c a s e s ] , Where, however, t h e con-
v i c t e d person himself i n i t i a t e s f u r t h e r proceedings
and they r e s u l t i n a heavier penalty, t h e f e d e r a l c o u r t s
do n o t hold i t t o be double jeopardy, [Citing c a s e s ] "
* * *,
he jeopardy, so f a r a s t h e sentence i s concerned,
i s a s i n g l e , continuing one, and any change i n t h e
sentence r e s u l t s from t h e sentenced person's own
voluntary a c t . [ C i t i n g c a s e s ] . I I
See a l s o : S t a t e v. Heyward, 152 Conn. 426, 207 A.2d 730; Anno.
168 ALR 706, 709.
Both defendant and amicus r e l y on North Carolina v.
Pearce, 395 U,S. 711, 719, 89 S.Ct. 2072, 23 L ed 2d 656, i n
support of t h e i r c o n s t i t u t i o n a l contentions. In t h a t case,
Pearce was convicted of a s s a u l t with i n t e n t t o commit r a p e and
sentenced t o a t e r m of twelve t o f i f t e e n years. That conviction
was l a t e r reversed on t h e ground t h a t an involuntary confession
had been used a g a i n s t Pearce, Upon r e t r i a l Pearce was again con-
v i c t e d and sentenced t o an e i g h t year t e r m , which when added t o
t h e time he had a l r e a d y served i n p r i s o n , amounted t o a longer
t o t a l sentence than t h a t o r i g i n a l l y imposed. The United S t a t e s
Supreme Court upheld t h e f e d e r a l d i s t r i c t and c i r c u i t c o u r t s i n
r e v e r s i n g t h e second s t a t e conviction. The United S t a t e s Supreme
Court h e l d t h a t t h e c o n s t i t u t i o n a l guarantee a g a i n s t m u l t i p l e pun-
ishment provided by t h e double jeopardy c l a u s e af t h e F i f t h
Amendment r e q u i r e s t h a t punishment a l r e a d y exacted be c r e d i t e d
upon resentencing and t h a t t h e due process c l a u s e of t h e Four-
t e e n t h Amendment precludes v i n d i c t i v e n e s s of a t r i a l judge from
p l a y i n g any p a r t i n a r e s e n t e n c i n g and consequently a f f i r m a t i v e
f i n d i n g s must be included t o support an order augmenting t h e
o r i g i n a l sentence.
Section 95-2503, R.C,M. 1947, s p e c i f i c a l l y provides:
I1
T i m e s e w e d on t h e sentence reviewed s h a l l be
deemed t o have been served on t h e sentence sub-
stituted."
It appears obvious t h a t t h e r u l e of Pearce i n t h i s regard has
been followed i n t h e i n s t a n t case.
Section 95-2501, R.C.M. 1947, s p e c i f i c a l l y provides:
"No judge s h a l l s i t o r a c t on a review of sen-
tence imposed by him. I I
It l i k e w i s e appears obvious t h a t v i n d i c t i v e n e s s of t h e t r i a l
judge cannot p l a y a p a r t i n resentencing under t h e Montana sentence
review s t a t u t e s ,
Section 95-2503, R,C.M. 1947, s p e c i f i c a l l y provides:
"The d e c i s i o n of t h e review d i v i s i o n i n each c a s e
s h a l l be f i n a l and t h e reasons f o r such d e c i s i o n
s h a l l be s t a t e d t h e r e i n . I'
Although t h e Sentence Review Division i s r e q u i r e d by s t a t u t e t o
i s s u e a statement of reasons f o r i t s a c t i o n , it appears doubtful
t h a t t h e r e i s any f u r t h e r requirement imposed under f e d e r a l
c o n s t i t u t i o n a l law precedent t o i s s u e any statements o r findings.
This question was r e c e n t l y considered i n Robinson v. Warden,
Maryland House of Correction, 455 F,2d 1172, 1176 (4th C i r . 1972),
where t h a t c o u r t s t a t e d :
"The very purpose of sentence review i s t o reconsider
and r e e v a l u a t e information b e a r i n g an t h e appropriate-
n e s s of t h e p r i s o n e r ' s punishment, I d e a l l y , review
should quickly follow sentencing, and i t i s n o t designed
t o examine a defendant's conduct i n t h e i n t e r i m , There-
f o r e , t h e s a n c t i o n fashioned i n Rearce t o a s s u r e due
process i s i n a p p r o p r i a t e f o r sentence review. I t
See a l s o : Walsh v , Picard, 446 F.2d 1209 ( 1 s t C i r . 1971).
The majority opinion i n Pearce l e f t no room f o r doubt a s
t o t h e l a c k of an a b s o l u t e c o n s t i t u t i o n a l b a r t o t h e imposition
of an increased sentence upon r e t r i a l , stating:
" ~ o n g - e s t a b l i s h e d c o n s t i t u t i o n a l d o c t r i n e makes
c l e a r t h a t , beyond t h e requirement a l r e a d y discussed,
[ c r e d i t f o r time previously served on t h e same of-
f e n s e ] , t h e guarantee a g a i n s t double jeopardy imposes
no r e s t r i c t i o n s upon t h e length of a sentence imposed
upon reconviction.
"* ** To hold t o t h e c o n t r a r y would be t o c a s t doubt
upon t h e whole v a l i d i t y of t h e b a s i c p r i n c i p l e enun-
c i a t e d i n United S t a t e s v , B a l l , [I63 U.S, 662, 16 S e c t .
1192, 41 L.Ed. 3003, and upon t h e unbroken l i n e of deci-
s i o n s t h a t have followed t h a t p r i n c i p l e f o r almost 75
y e a r s , W t h i n k those d e c i s i o n s a r e e n t i r e l y sound, and
e
we d e c l i n e t o d e p a r t from t h e concept they r e f l e c t .
I1
The o t h e r argument advanced i n support of t h e propo-
s i t i o n t h a t the Constitution absolutely forbids the
imposition of a more severe sentence on r e t r i a l i s
grounded upon t h e Equal P r o t e c t i o n Clause of t h e Four-
t e e n t h Amendment. *** The argument, while n o t l a c k i n g
i n ingenuity, cannot withstand c l o s e examination. ***
It simply cannot be s a i d t h a t a S t a t e has i n v i d i o u s l y
' c l a s s i f i e d ' those who s u c c e s s f u l l y seek new t r i a l s ,
any more than t h a t t h e S t a t e has i n v i d i o u s l y ' c l a s s i f i e d '
-
those p r i s o n e r s whose convictionsare n o t s e t a s i d e by
denying t h e members of t h a t group t h e opportunity t o
be a c q u i t t e d . To f i t t h e problem of t h i s c a s e i n t o an
equal p r o t e c t i o n framework i s a t a s k t o o Procrustean t o
be r a t i o n a l l y accomplished,
"We hold, t h e r e f o r e , t h a t n e i t h e r t h e double jeopardy
p r o v i s i o n nor t h e Equal P r o t e c t i o n Clause imposes an
a b s o l u t e b a r t o a more severe sentence upon reconvic-
t i o n . " (Emphasis added,)
Bearing i n mind t h a t t h e n a t u r e of a voluntary l e g i s l a t i v e
c r e a t e d sentence review system i s fundamentally d i f f e r e n t from
t h e c o n s t i t u t i o n a l l y c r e a t e d r i g h t t o appeal c r i m i n a l c o n v i c t i o n s ,
w e f i n d no c o n s t i t u t i o n a l law precedent e s t a b l i s h e d i n Pearce
which favors t h e arguments of amicus with regard t o double jeopardy
o r equal p r o t e c t i o n . I n S t a t e v. F i s s e t t e , 159 Mont, 501, 498 P,
2d 1208, 29 St.Rep. 580, t h i s Court recognized t h a t t h e r e i s no
a b s o l u t e p r o h i b i t i o n upon t h e imposition of an increased sentence,
Concerning t h e due process argument, i t i s contended t h a t
t h e a u t h o r i t y conferred upon t h e Sentence Review Division under
s e c t i o n 95-2503, R . C . M . 1947, has a " c h i l l i n g e f f e c t " on p r i s o n e r s
applying f o r sentence review, except i n t h e c a s e of those prisoners
who have received maximum sentences. However, amicus i n h i s o r a l
argument admitted t h i s i s t h e f i r s t i n s t a n c e i n over 300 a p p l i c a -
t i o n s before t h e Sentence Review Division i n which a sentence has
been increased, Amicus a l s o acknowledged i n h i s b r i e f t h a t t h e
state, upon informing defendant of her right of sentence review
created under Montana statute, warned her that an increased sen-
tence was possible, It should also be noted that in the comment
of the Criminal Law Commission published with the applicable
statute, it is noted that the sentence may be increased on appeal,
In Robinson v. Warden, Maryland House of Correction, 455
F.2d 1172, 1177, the court considered an analogous due process
issue in light of the United States Supreme Court ruling in Pearce:
"~earce's ruling on due process is, however, not
altogether inapplicable to sentence review. Though
a state need not provide sentence review, if it does,
it may not discourage applications for relief by
vindictively imposing harsher sentences on those who
exercise their statutory right. The enlightened policy
of a legislature cannot be thwarted in this manner by
a reviewing court. But there is in this record no
suggestion that the state acted vindictively. Robinson
has not shown that the 15-year sentence he received
on review is excessive when compared to sentences imposed
under similar circumstances. Nor does he point to a
pattern of increased sentences from which one might infer
an intent on the part of review panels to chill applica-
tions for relief.
tI
Pearce stops short of holding the due process clause
i m t e d by every increased sentence on retrial. and
we believe that its-ruling should not be extended to
absolutely prohibit a review panel from imposing an in-
creased sentence, We conclude, therefore, that the
statute on its face, and as it was applied in this case,
does not violate the due process clause of the fourteenth
.
amendment 11
In the instant case defendant has not shown her sentence to
be excessive or disproportionate; she has shown no indication of
malice or vindictiveness toward her; she has shown no pattern of
increased sentences imposed by the Sentence Review Division effec-
tively chilling applications,
Here, we note that there is in Montana a presumption of
constitutional validity attendant upon every legislative enactment,
State v, Chapman, 152 Mont. 79, 446 P.2d 709; Parker v. County of
Yellowstone, 140 Mont. 538, 374 P.2d 328. The burden of demon-
strating violation of constitutional principles is incumbent on
the petitioner, This burden has not been met. We find the powers
conferred on the Sentence Review Division under section 95-2503,
R.C.M. 1947, do not violate the constitutional guarantee against
multiple punishment provided in the double jeopardy clause of
the Fifth Amendment, or the equal protection clause, or of the
due process clause of the Fourteenth Amendment of the United States
Constitution; or of due process of law as guaranteed under Article
111, Sec. 27 of the Montana Constitution. We further find the
action of the Sentence Review Division in defendant's case was
neither malicious, vindictive nor violatgve of her rights.
Although the Sentence Review Division is not required by
federal or state precedent to issue a statement of findings, it
is required by Montana statute to issue reasons. The Sentence
Review Division did comply in issuing the statement, hereinabove
quoted, concerning the petitioner's need for treatment, guidance
and training. As stated in North Carolina v. Pearce, 395 U,S.
711, 723, 89 Sect. 2072, 23 L ed 2d 656, this action of the Sentence
Review Division was:
"* * * consonant with the principle, fully approved
in Williams v, New York, [337 U , S . 241, 69 Sect,
1079, 93 L Ed 13371, that a State may adopt the
'prevalent modern philosophy of penology that the
punishment should fit the offender and not merely
the crime. "
The petition is denied and the decision and order of the
Sentence Review Division is affirmed,
--
/~s#ociate Justices I
Hon. Edward T, Dussault, District
Judge, sitting fox ~ssocia Justice
te
Castles,