Swinson v. State

WILNER, Judge. Appellant was convicted in the Circuit Court for Kent County of driving under the influence of alcohol, in violation of Md.Code Ann.Transp. art., § 21-902(b), and failing to keep to the right of center. The maximum penalty for a ⁶⁶³ first conviction under § 21-902(b) is a fine of $500 and incarceration for two months. Transp. art., § 27-101(c)(22).

Because appellant had previously, in 1981, been convicted of driving while intoxicated, however, he was treated as a subsequent offender and given an enhanced punishment pursuant to § 27-101(f). 1 He was fined $300 plus costs and sentenced to six months in prison, of which four months was suspended in favor of five years probation. Appellant does not challenge his convictions. His sole complaint is that the enhanced sentence for the § 21-902(b) conviction was the product of prosecutorial vindictiveness, that it is therefore Constitutionally impermissible, and that he is entitled to be sentenced as though he were a first offender. We do not agree.

In addition to the minor traffic violation, appellant was charged generally with a violation of § 21-902, which would include both driving while intoxicated (§ 21-902(a)) and driving under the influence of alcohol (§ 21-902(b)). The offenses occurred on June 8, 1986; trial was scheduled in the District Court for Kent County for September 2, 1986. Although the State was aware of appellant’s earlier conviction on or shortly after June 8, it did not inform him prior to the scheduled trial date that it intended to seek an enhanced punishment. As a result, had trial actually occurred on the scheduled date, the District Court would have been precluded by Md.Rule 4-245(b) from imposing the enhanced sentence otherwise authorized by § 27-101(f). 2 ⁶⁶⁴ Appellant appeared for trial on September 2, but, when his counsel “walked in District Court that morning and found the Circuit Court Judge from Caroline County sitting there,” 3 she prayed a jury trial on behalf of her client.

As a result, the case was transferred to the Circuit Court for Kent County. On October 6, 1986, the State gave notice to appellant that it intended to prosecute him as a subsequent offender by reason of his 1981 conviction. No immediate response was made to that notice, and, on November 25, 1986, appellant was tried in the Circuit Court; he was acquitted of driving while intoxicated but, as noted, convicted of driving under the influence of alcohol. On December 10, 1986, appellant moved to strike the State’s October 6 notice on the ground that its action “was unethical and gives the strong inference of impropriety— ” He recited the procedural history of the case and asserted that on or about November 17 the prosecutor had offered to withdraw the notice if appellant would plead guilty to driving under the influence.

He claimed further that the State’s Attorney had a policy of not prosecuting § 21-902 violations under the subsequent offender law, that defense counsel had at least five other clients in 1986 who could have been tried in the District Court for Kent County as subsequent offenders but were not, and that “only the Defendant herein was tried as one and then only after he had elected a jury trial.” At the hearing on the motion, counsel made clear that her argument was of Constitutional dimension, proceeding from ⁶⁶⁵ principles announced by the Supreme Court in North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969), and Blackledge v. Perry, 417 U.S. 21 , 94 S.Ct. 2098 , 40 L.Ed.2d 628 (1974). She alleged that the October 6 notice was in retaliation for her client’s prayer for a jury trial and, in that regard, asked the State to “file an affidavit with respect to the number of people in the year 1986 that could have been tried as subsequent offenders, and the number who actually were.” In response to counsel’s charge, the prosecutor denied any vindictiveness. He acknowledged that he does not generally seek enhanced punishment in the District Court “for the reason that quite often the State — or at least the State’s Attorney’s office doesn’t have actual notice of the subsequent offender ... within the period authorized by the Rules to give notice to the defendant prior to trial.” He explained: “In other words, with the computer system it is not unusual for the State to get notice, or have notice that a trial will be scheduled in about eight days and quite often the trooper hasn’t sent us the certified record indicating any subsequent offender. So they are not pursued, and simply the cases are tried as they come in.

This is a different situation though. There was more time — additional time for investigation and so-forth, and in Circuit Court the rules are followed more closely than they are in the District Court, and in this case the State did nothing other than abide by the Rules and notify the Defendant that he could be sentenced as a subsequent offender should he be convicted. And that’s where we are at this point.” After some further discussion, the court concluded that the prosecutor had discretion in the matter and declined either to require the statistics requested by counsel (which the prosecutor said were unavailable in any event) or to find vindictiveness. Hence this appeal.

We begin by observing that appellant presented no direct evidence of any actual vindictiveness or retaliatory motive ⁶⁶⁶ on the part of the prosecutor in seeking the enhanced punishment. What he sought really to establish was an inferred or presumed vindictiveness — a chilling appearance of vindictiveness — arising from the acknowledged facts that the prosecutor generally does not seek enhanced punishment in the District Court and that he sought that punishment in this case only after appellant exercised his Constitutional right to a jury trial. There have been a number of cases, including North Carolina v. Pearce and Blackledge v. Perry, in which the Supreme Court has addressed the issue of a court imposing or a prosecutor seeking an enhanced punishment following the exercise of some procedural right by a defendant. The underlying principle involved is that, “while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.” United States v. Goodwin, 457 U.S. 368, 372 , 102 S.Ct. 2485, 2488 , 73 L.Ed.2d 74 (1982).

The initial focus of the Court was on the trial/retrial setting — whether, and under what circumstances, it was permissible for a court, upon retrial of a defendant who had previously been tried, convicted, and sentenced but who became entitled to a retrial, to impose a harsher sentence than had been imposed at the first trial. See North Carolina v. Pearce, supra, 395 U.S. 711 , 89 S.Ct. 2072 ; Colten v. Kentucky, 407 U.S. 104 , 92 S.Ct. 1953 , 32 L.Ed.2d 584 (1972); Chaffin v. Stynchcombe, 412 U.S. 17 , 93 S.Ct. 1977 , 36 L.Ed.2d 714 (1973). The concern was whether the ability of the court to impose a more substantial penalty the second time might create such an appearance of vindictiveness as to deter defendants from exercising rights accorded to them by law. In the classic trial/suecessful appeal/retrial setting, the Court found that there was that appearance, and so it limited the trial court’s ability to impose a harsher sentence after retrial.

North Carolina v. Pearce, supra. In the two-tiered trial setting — trial de novo in a court of general trial jurisdiction following a trial and conviction in an “inferior” court of limited trial jurisdic ⁶⁶⁷ tion — and in the case where the second sentence was imposed by a jury rather than by the judge, the Court decided that the prophylactic constraints of Pearce were unnecessary. Colton v. Kentucky, Chaffin v. Stynchcombe, both supra. In later cases, the Supreme Court shifted its attention from