Moon v. State

Hammond, C. J., delivered the opinion of the Court. Dennis Mullene Moon was convicted of armed robbery and sentenced to twelve years. Schowgurow v. State, 240 Md. 121 , gave him the opportunity to elect to have his indictment nullified, and he did. On retrial he was again found guilty of armed robbery and also of larceny and assault with intent to murder for which he had not been tried the first time.

Judge Pugh, of the Circuit Court for Montgomery County, sentenced him to twenty years for armed robbery, with credit for the time he had served, and suspended ten-year sentences on each of the other counts. The Court of Special Appeals affirmed the judgment and sentence in Moon v. State, 1 Md. App. 569 , on the authority of Hobbs v. State, 231 Md. 533 , cert. den. 375 U. S. 914 (1963), in which we held that after the convicted man had won a reversal on appeal the judge on retrial could impose a greater punishment than had been previously imposed. We granted certiorari because since Hobbs we had decided State v. Barger, 242 Md. 616 , the Court of Appeals for the Fourth Circuit had decided Patton v. State of North Carolina, ⁴⁷⁰ 381 F. 2d 636 (1967), and the Court of Special Appeals of Maryland had decided Reeves v. State, 3 Md. App. 195 . Barger held that where there had been a regular trial, upon a valid indictment, at which the accused had been convicted of murder in the second degree but explicitly acquitted of murder in the first degree, his appeal and the granting of a new trial did not waive his right successfully to plead double jeopardy to the charge of first degree murder at the second trial.

In answer to the State’s reliance on Hobbs (“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”), we said Barger and Hobbs were distinguishable, and added at p. 627: “But even if the cases were indistinguishable, the result would be the same, for, under the circumstances of this case, the rule with respect to double jeopardy is such as to preclude a retrial of the defendant at the instigation of the State for murder in the first degree.” The opinion went on to say (pp. 627-28) that: “The further contention of the State that the appeal by the defendant in the first Barger case from his conviction of second degree murder had the effect of waiving the question of double jeopardy, or barring a plea to that effect, as to the charge of first degree murder of which he was acquitted, based on the premise that the granting of a new trial completely nullified the prior trial, is not only unreasonable under the circumstances of this case, but is not supported by the cases in this and other states. The contention [that Barger’s appeal was a waiver] is unreasonable (a) because to hold that the appeal and consequent granting of a new trial constituted a waiver would be inconsistent with the fact that the defendant sought only to reverse so much of the verdict as supported his conviction of second degree murder and (b) because the opening of the whole case for reconsideration would place too great a price on the right of an accused to appeal.” ⁴⁷¹ In Patton the Court said the question to be answered was whether a defendant may be sentenced to a longer term of imprisonment at his second trial than he received after his first conviction, vacated on constitutional grounds. Its answer was that under no circumstances can he be. Three reasons were given—denial of due process, lack of equal protection, and double jeopardy.

The due process clause of the Fourteenth Amendment, said the Court, does not permit the “fiction” that a reversal on appeal wipes out all that went before, and that by appealing the accused is deemed to have assumed the risk of a greater sentence. The Court said (pp. 639-41): “the District Court [at 256 F. Supp. 225 ] declared that predicating Patton’s constitutional right to petition for a fair trial on the fiction that he has consented to a possibly harsher punishment, offends the due process clause of the Fourteenth Amendment. It would confront the prisoner with the unhappy choice of either abandoning his constitutional right to a fair trial and serving out his prison term under the invalid sentence, or exercising that right under the hazard, in the event of a second conviction, of being treated as though the years of imprisonment already served had never occurred. “This is. like the ‘grisly choice’ discountenanced in Fay v. Noia, 372 U. S. 391 , 83 S. Ct. 822 , 9 L. Ed. 2d 837 (1963). ‘The law should not, and in our judgment does not, place the defendant in such an incredible dilemma.’ Green v. United States, 355 U. S. 184 , 78 S. Ct. 221 , 2 L. Ed. 2d 199 (1957). North Carolina deprives the accused of the constitutional right to a fair trial, then dares him to assert his right by threatening him with the risk of a longer sentence.

It may not exact this price. Enjoyment of a benefit or protection provided by law cannot be conditioned upon the ‘waiver’ of a constitutional right. “The District Court held that Patton’s punishment could not be increased unless evidence justifying a ⁴⁷² harsher sentence appeared in the record, and that the State must bear the burden of showing that such facts were introduced at the second trial, since ‘where the record disclose [d] no colorable reason for harsher punishment,’ the effect would be to inhibit the constitutional right to seek a new trial. 256 F. Supp. at 236 . We agree with the District Court that it is an impossible task for the prisoner to prove improper motivation of the trial judge. It is equally impossible, and most distasteful, for federal courts to pry into the sentencing judge’s motivation to ascertain whether vindictiveness played a part. “We do not think, however, that a defendant’s rights are adequately protected even if a second sentencing judge is restricted to increasing sentence only on the basis of new evidence.

We are in accord with the First Circuit, which has recently held that a sentence may not be increased following a successful appeal, even where additional testimony has been introduced at the second trial. * * * “* * * improper motivation is characteristically a force of low visibility. In order to prevent abuses, the fixed policy must necessarily be that the new sentence shall not exceed the old. Seldom will this policy result in inadequate punishment. Against the rare possibility of inadequacy, greater weight must be given to the danger inherent in a system permitting stiffer sentences on retrial—that the added punishment was in reaction to the defendant’s temerity in attacking the original conviction.

Even the appearance of improper motivation is a disservice to the administration of justice.” On equal protection the Court said (p. 642) : “If the State wishes to institute a system permitting upward revision of sentences, it must proceed upon a rational basis in selecting the class of prisoners it will subject to this threat. It may not discriminate in this ⁴⁷³ regard against those who have availed themselves of the right to a fair trial. This is an arbitrary classification offensive to the equal protection clause.” On double jeopardy the Court’s thought was (pp. 643-44, 645-46): “Double jeopardy, rather than being a single doctrine, is actually comprised of three separate though related rules, prohibiting (1) reprosecution for the same offense following acquittal, (2) reprosecution for the same offense following conviction, and (3) multiple punishment for the same offense. * * * “* * * Thus, unless a defendant is held to waive this double jeopardy protection in seeking a new trial, a harsher penalty may not be imposed. And we have already declared, in Part II of this opinion, that we decline to predicate a prisoner’s exercise of his right to seek a new trial on the fiction that he has ‘waived’ the benefits of his initial sentence, because of the restrictive effect this has on access to post-conviction remedies.” In Reeves the accused was convicted of rape and given life.

The United States Court of Appeals for the Fourth Circuit vitiated his conviction and on his second trial he was sentenced to twenty years imprisonment, the maximum allowed by statute under the jury’s verdict, with no allowance for the approximately six years he had served under his first sentence. The Court of Special Appeals said (pp. 203-04) : “In Moon , as here, the twenty year sentence imposed on retrial was the maximum allowed under the statute (Md. Code, 1967 Repl. Vol., Art. 27, Sec. 488). Credit, however, was given Moon for all the time he had served in jail following his arrest.

Thus, the case at bar reaches us in a different factual posture than Moon , for, by giving no credit for the time Reeves had spent in jail under the first sentence, the lower court, by imposing the maximum sentence in the ⁴⁷⁴ second case, in effect, sentenced him to serve twenty-six years in the face of a statute which limits the sentence to twenty years. “It is true that the Court of Appeals and this Court have reasoned that the granting of a new trial, whether because of a defective indictment or because of error in the first trial results in a de novo proceeding, and the lower court, on retrial, ‘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.’ Hobbs, supra. But this theory or fiction does not obliterate the hard fact, present in this case, that if the sentence here imposed is allowed to stand, Reeves could be forced to serve twenty-six years in prison for the commission of a crime which carries with it a maximum sentence of twenty years.” The case was remanded for the imposition of a lawful sentence. 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 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”; Cichos 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. ⁴⁷⁵ Starner v. Russell (3rd Cir. 1967), 378 F. 2d 808 , which had refused to follow Patton and had reached an opposite result. We are uupersuaded that Patton is sound. There the Court enacted a flat prophylactic rule which it rationalized as constitutionally required, seemingly because it was convinced that out of bitterness, bias, spite or prejudice state judges on retrial would give increased sentences which bore no proper relation to the fair administration of justice, and that in the rare instances in which this was not so, the second sentences could not be found from the record not to have reflected such prejudice or improper motives. This attitude of knowing judicial pragmatism led to the Procrustean holding, which we think is unwarranted and undesirable in its absolute inflexibility.

No appellate court to our knowledge has followed Patton in finding a constitutional necessity for entire inflexibility, 1 although if reliance is put on double jeopardy this result is almost inevitable. See Van Alstyne, In Gideon’s Wake: Harsher Penalties and the “Successful” Criminal Appellant, 74 Yale L. J. 606, 611 (1965); see also Retrial of the Successful Criminal Appellant: Harsher Punishment and Denial of Credit for Time Served, 28 Md. L. Rev. 64 (1968). Various federal courts have rejected the view Patton took and have refused to follow its holdings. The Court of Appeals for the Second Circuit dismissed without particular comment as not warranting discussion the points that increasing a sentence on retrial violated the constitutional rights of the accused, under due process, equal protection and double jeopardy.

See United States v. Ellenbogen (2nd Cir. 1966), 365 F. 2d 982 , referred to in Coke v. United States (S. D. N. Y. 1968), 280 F. Supp. 97, 102 . In Coke , Judge Cooper, after a thorough consideration of 1’atton and other federal cases held that, considering the additional unfavorable information which came to light in the preseutence report following the third conviction as contrasted with the information appearing in the