Cherry v. State

Morton, J., delivered the opinion of the Court. The single issue in this case concerns the authority of the trial judge to impose more severe punishment upon the appellant, Charles Curtis Cherry, after his conviction for the same offense at a second trial, than the punishment imposed at his original trial. Cherry was convicted of driving “under the influence of intoxicating beverage” In the People’s Court of Montgomery County and was fined $350 of which $100 was suspended. He appealed to the Circuit Court for Mont ⁴¹⁸ gomery County and in a non-jury, de novo trial held on July 14, 1969, he was again found guilty and a sentence of thirty days confinement in the Montgomery County Detention Center was imposed.

Upon his application, this Court granted a writ of certiorari in accordance with Md. Rule 1011 b. At the time the thirty day jail sentence was imposed, the trial judge stated: “There is no doubt in the Court’s mind you were drunk. As a matter of fact, I think the police were giving you a break sending you home in a taxi cab and then you just deliberately get in the truck, after you get the truck, after having been driven down there and drive it. You were zig-zagging across the road.

The police were really being kind to you. You could have killed somebody while you were zig-zagging on the road. You had no right to get in the truck. “It is the sentence of the Court that you be confined to the Montgomery County Detention Center for a period of thirty days.” Three days later, on July 17, 1969, after taking testimony and hearing arguments on Cherry’s motion to reduce his sentence, the trial judge announced: “The first break he had is when the policeman sent him home in a taxicab. The second break he had is when he came before the Peoples Court and they fined him. “I don’t think I ought to penalize him for taking the appeal, but whether or not I am going to reduce his sentence, I don’t know.

I am interested to know whether or not, under this pending case of the Supreme Court of the United States, you can increase the sentence. “The Court will take it under advisement and let you know.” Thereafter, on July 22, 1969, the motion to reduce ⁴¹⁹ the sentence was denied, thus subjecting Cherry to thirty days in jail rather than the $250 fine imposed by the People’s Court. The issue here presented was considered by this Court in Moon v. State, 1 Md. App. 569 , and we there held, on the authority of Hobbs v. State, 231 Md. 533 , cert. denied, 375 U. S. 914 (1963), that the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States did not preclude the imposition of a greater sentence upon conviction after retrial where an accused’s conviction had been set aside for errors in his original trial. In Hobbs the Court of Appeals of Maryland was “concerned only with the results of a trial de novo where the accused was charged with the same crimes upon which he had been convicted in the original trial.” The Court said: “On a trial de novo the court hears the case as if it were being tried for the first time, and considers the entire matters of verdict, judgment and sentence, as if there had been no prior trial.” It then concluded: “Under these circumstances the imposition of new sentences in the second trial resulting in a greater period of confinement was not unlawful; ” and stated: “In asking for and receiving a new trial, appellant must accept the hazards as well as the benefits resulting therefrom.” In affirming the decision of this Court in Moon, supra, the Court of Appeals, speaking through Chief Judge Hall Hammond, Moon v. State, 250 Md. 468, 474-475 , concluded : “We perceive no present constitutional obstacle to continuing to follow the flat rule laid down in Hobbs. The Supreme Court has not disturbed increased sentences on retrial.

It did not do so in Hobbs. See also Stroud v. United States, 251 U. S. 15 , 64 L. Ed. 103 (1919) (in which, on retrial, a death sentence replaced a life sentence given at the first trial) ; Robinson ⁴²⁰ v. United States (6th Cir. 1944), 144 F. 2d 392 , aff’d 324 U. S. 282 , 89 L. Ed. 944 (1945) (a death sentence replaced a life sentence). See also Green v. United States, 355 U. S. 184, 194 , 2 L. Ed. 2d 199, 208 (1957), Note 15 (in which a jury’s finding of second degree murder was held to be an implied acquittal of first degree murder which precluded again putting the accused in jeopardy for first degree murder) — ‘Stroud * * * is clearly distinguishable’; Ciehos v. Indiana, 385 U. S. 76 , 17 L. Ed. 2d 175 (1966). In United States v. Tateo, 377 U. S. 463 , 12 L. Ed. 448 (1964), both Stroud and Robinson are cited as existing and viable authority.

The Supreme Court denied certiorari in Patton, 390 U. S. 905 (1968), but at 389 U. S. 889 it also denied it in United States ex rel. Starner v. Russell (3rd Cir. 1967), 378 F. 2d 808 , which had refused to follow Patton and had reached an opposite result.” Chief Judge Hammond carefully analyzed the holding in Patton v. North Carolina, 381 F. 2d 636 (1967), where the United States Circuit Court of Appeals for the Fourth Circuit held that “a sentence may not be increased following a successful appeal, even where additional testimony has been introduced at the- second trial” which would furnish “ ‘colorable reason for harsher punishment’.” The Court concluded: “In' order to prevent abuses, the fixed policy must necessarily be that the new sentence shall not exceed the old.” The Maryland Court of Appeals'' was “unpersuaded that Patton is sound.” The Court asserted (pp. 478, 479) : “If the Patton rationale, were valid'it would be logically difficult if not impossible to justify the validity' of the newly enacted procedures, recommended after extensive study-by . an able and experienced committee and approved by the bar, for the review of sentences in criminal ⁴²¹ cases. See Maryland Rule 762, ‘Review of Sentence/ which was authorized by Ch. 288 of the Laws of 1966. Under the Rule (762 b 3) the convicted man’s application for review must contain the statement that he understands his present sentence may be increased by the review panel.

Chapter 288, in enacting § 134 of Art. 26 of the Code, provided that the review panel shall have the power to order an increased as well as a decreased sentence.” Judge Hammond then stated that “[i]f we assume that the flat rule of Hobbs should be replaced * * * and that we shall hereafter make such a modification in a proper case, we see no reason to disturb the judgment and [increased] sentence imposed” at Moon’s second trial. He pointed out that there was no indication that Moon’s sentence was increased “because he had elected to have a new trial or for any other unworthy or improper motive. There is substantial indication that the second sentence reflected the extent to which facts, revealed at the second trial but not at the first, put Moon in a bad light, and showed him to be a greater threat to society than had first been thought. * * * We think there was no constitutional bar to the giving of the increased sentence and that the record supports factually its permissibility and propriety.” 1 Since Hobbs, Patton and Moon, the Supreme Court of the United States has had occasion to consider and pass upon the question of increased sentences upon convictions after retrials in the cases of North Carolina v. Pearce and Simpson v. Rice, 395 U. S. 711 , hereafter designated as Pearce. In Wayne v. State, 8 Md. App. 5 , we held, 2 that Pearce was not to be applied retroactively “[i]n view of the absence of a decision by the Supreme ⁴²² Court and in view of the settled Maryland law prior to Pearce that an increased sentence on retrial was within the discretion of the second trial judge, Moon v. State, 250