696 F. Supp. 766 | D. Mass. | 1988
MEMORANDUM OF DECISION
The Court’s opinion in this matter was delivered orally from the bench on July 15, 1988, the Court reserving the right, should further proceedings ensue, to file a written opinion. This is that opinion.
As this is the second time this petition for habeas corpus has been before the Court, it is appropriate to limn in some detail its previous — and undisputed — procedural history in state and federal courts.
In 1982, the petitioner, Lane T. Mele (“Mele”), was involved in an automobile accident in which a teenager was killed. On March 9, 1983, Mele came before a justice (“the first trial justice”) in the Gardner District Court
More than a year later Mele filed a motion for a new trial before a jury and, when that motion was denied, appealed to the Massachusetts Appeals Court. In a re-script opinion,
On December 2, 1987, this Court denied Mele’s petition on the merits. The First Circuit affirmed on the basis that Mele had failed to exhaust his state remedies. Mele v. Fitchburg Dist. Court, 850 F.2d 817, 824 (1st Cir.1988). This time around Mele asserts, and the Commonwealth does not dispute, that he has exhausted his state remedies through a Motion to Amend Application and File Late Said Amended Application filed in the Massachusetts Supreme Judicial Court. On June 29, 1988, the Supreme Judicial Court allowed Mele to file his amended application late, but denied it on the merits. Mele again repaired here.
This case turns on whether the Mele circumstances are closer to those of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) or Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). In Pearce, the Supreme Court held that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear [in the record]. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” 395 U.S. at 726, 89 S.Ct. at 2081. In Colten, the Supreme Court limited the potential reach of Pearce, ruling that resentencing after a de novo retrial as of right
Turning to the instant case, here, as in Pearce, two different judges presided over the two trials.
Moreover, the concerns of Pearce are fully applicable here. Just as the situation involving two separate judges of the Durham County Superior Court in North Carolina was thought to pose a danger of vindictive sentencing when one was overturned and a second presided over the retrial and sentenced Pearce, so too the same danger is posed here when the second trial judge, a justice in the Massachusetts District Court system, presided over the retrial and sentenced Mele, despite the fact that the retrial was at the customary de novo (i.e., jury-of-six) level.
The Colten rationale also suggests that Pearce is more applicable. The Colten
The Colten Court finally observed that a de novo court is more likely to reflect the Kentucky Court of Appeal’s attitude that the inferior courts are not equipped to conduct error-free trials or to insure full constitutional rights, but rather are speedy and inexpensive courts of convenience to handle minor offenses. Id.
The Commonwealth argues that Colten governs because the Massachusetts Appeals Court found that the second trial of Mele was a de novo proceeding. Commonwealth v. Mele, No. 86-1188, slip op. at 12 (Mass.App.Ct. April 2, 1987) [24 Mass. App.Ct. 1101, 506 N.E.2d 186 (Table) ]. Regardless of that court’s characterization of the second proceeding, however, this Court is not bound, as the Commonwealth seems to think, to apply Colten mechanically to this case simply because the second proceeding has been deemed de novo. The policy concerns underlying Colten and Pearce dictate that the danger of vindictiveness, found dispositive in Pearce, exists with equal force here where a fellow mem
Applying Pearce, the record makes clear that the second trial justice gave Mele a more severe punishment, sentencing him to two and one-half years in a house of correction (increased from two years), and two and one-half years probation (also increased from two years), and requiring twenty days of the sentence to be served.
Pearce requires that any post-conviction conduct that justifies a heavier second sentence “be made part of the record to ensure adequate appellate review. While arguably this may mean simply that some evidence of post-conviction misconduct warranting an enhanced sentence must be before the second trial justice at the sentencing hearing, this Court considers the better view to be that the policy underlying Pearce requires that it be included in a memorandum prepared by the judge so that a reviewing court may adequately assess the basis for the enhanced sanction.
Where, as here, there appears to have existed at the time of the second sentencing adequate post-conviction grounds for an enhanced sentence, but where, in circumstances such as these, the second trial justice failed to include any reference to post-conviction conduct in his memorandum, this Court orders that the writ of habeas corpus must issue and that the original sentence imposed be vacated unless the Massachusetts District Court sentences the petitioner within 60 days in accordance with the dictates of Pearce as outlined in this memorandum.
. The Gardner District Court is one of the local community courts in the Massachusetts District Court system.
. Under Massachusetts appellate practice, a re-script opinion is but "a brief statement of the grounds and reasons of the decision.” Mass. Gen.Laws ch. 211, sec. 8 (rescripts from the Massachusetts Supreme Judicial Court); Mass. Gen.Laws ch. 211A, sec. 9 (rescripts from the Massachusetts Appeals Court); see also Mass. Gen.Laws ch. 211, sec. 9 (stating that rescript opinions shall contain a brief statement of the reasons for the decision and, if no further opinion is written within 60 days, requiring that such rescript opinions be published by the reporter). A rescript breaks no legal ground and only refers briefly to the governing precedent. Thus, when a Massachusetts trial justice is reversed by a rescript, he knows that he has run afoul of some already charted shoal. Even more stinging, of course, is to be summarily reversed without opinion. See Mass.Gen.Laws ch. 211A, sec. 9 (authorizing such disposition by the Massachusetts Appeals Court). In practice, the Massachusetts Appeals Court provides the unpublished opinions underlying such reversals to the trial justice and counsel in all such cases.
. Under the Kentucky system at issue in Colten, any defendant convicted in a so-called inferior court — established for the trial of less serious offenses — had the right to a trial de novo in a court of general criminal jurisdiction. Colten, 407 U.S. at 112, 92 S.Ct. at 1958.
. The First Circuit has recently addressed the issue of vindictive sentencing raised in Pearce and Colten. United States v. Pimienta-Redondo, 856 F.2d 351 (1st Cir.1988). In Pimienta-Re-dondo, after a jury convicted the two defendants on two counts, the defendant Pimienta-Redon-do received consecutive sentences of five years on each of the two counts; the defendant Pupo received consecutive sentences of six years on each count. The First Circuit reversed the convictions on the first count due to a flawed jury instruction and remanded the case to the district court for resentencing of the defendants on the remaining count. On remand, the district court resentenced Pimienta-Redondo to ten years on the remaining count; Pupo received twelve years. The defendants then appealed, relying on Pearce. A divided panel declared that the standard under Pearce was a reasonable apprehension or fear of vindictiveness. Pimien-ta-Redondo, at 355, 356. The Court further held that "Pearce directs us to adopt a presumption in favor of the defendants, not the sentencing judge,” id. at 357, vacated the defendant’s sentences, and remanded the case for reinstatement of the five and six year sentences originally imposed on each defendant for Count II. Id. at 357.
.In Pimienta-Redondo, the First Circuit panel stated that "[i]n Pearce, the [Supreme] Court addressed due process concerns involved when a defendant, having obtained a reversal of a conviction on appeal, is subsequently retried, convicted for the same offense, and given an increased sentence by the same trial judge." Pi-mienta-Redondo, at 354 (emphasis supplied). In fact, in one of the two cases reviewed in Pearce, two different judges sentenced the defendant — the first after the initial trial and the second after the retrial following appeal. See State v. Pearce, 268 N.C. 707, 151 S.E.2d 571, 572 (1966). Thus, Pearce in no way turned on the fact that the same judge sentenced the defendant before and after the appeal. In Pimien-ta-Redondo, nothing turned on whether Pearce involved separate sentencing judges because in Pimienta-Redondo the same judge sentenced the defendants both times. See supra note 4.
. Query whether motor vehicle homicide, of which Mele was convicted, can be considered a minor offense.
. This Court takes judicial notice, Fed.R.Evid. 201, that each of the several Massachusetts trial courts possesses a distinctive and distinguished record of judicial service to the citizens of Massachusetts — a record of which the trial justices in each individual court are justly proud. See Pierce v. Dew, 626 F.Supp. 386, 387 (D.Mass. 1986). See generally "A Tribute to Hon. Kenneth L. Nash” [the First Chief Justice of the Massachusetts District Court system], 55 Mass.L. Q. 176-201 (1970); A. Dimond, The Superior Court of Massachusetts (1960); Agenda 90, Report of the Massachusetts Senate Ways and Means Committee 1-12 (1987) ("Agenda 90”). At the same time, each of the individual trial courts has had to wrestle with frequently decrepit court facilities and crippling shortages of judicial personnel, support services, and educational resources. Agenda 90 at Table A, 22-23; E. Hennessey, Twelfth Annual Report to the Bar, 73 Mass.L.Rev. 8-9 (1988); "Courts in Crisis,” Massachusetts Bar Association Judicial Administration Section Newsletter Special Issue (Spring 1988). One result of these disparate circumstances is the development of a high degree of intra-court collegiality and loyalty. This is particularly apparent in the Massachusetts District Court system where the vast number of cases it must handle necessitates central docketing within each district court, see Mass.Dist./Mun.Ct.Rule 79(a), and mandates that justices of the Massachusetts District Court system move from court to court within — and often beyond— their home county. Such trial justices must deal on a daily basis with the judicial decisions of their colleagues concerning prior proceedings in the cases before them. Such a system could not continue to function practically without a strongly developed doctrine of ‘law of the case.’ See H. Lummus, The “Law of the Case” in Massachusetts, 9 B.U.L.Rev. 225, 232-33 (1929); see generally Lane v. First National Bank of Boston, 687 F.Supp. 11, 13 (D.Mass. 1988) (and the authorities cited therein).
. It should be noted that, given that the Appeals Court reversed the first trial justice by a rescript opinion — in effect, suggesting that the judge erred on a well-settled point of law — the danger of vindictiveness was heightened here. It should further be noted that this Court makes no finding that the sentence imposed by the second trial justice was vindictive; rather, the Court holds that retrial in the same county and court system after reversal by a rescript opinion makes the need for the application of the rule of Pearce that much greater.
. The sentence was reduced in the sense that Mele was not required to perform community service, although this provided small consolation as he had already discharged this portion of his previous sentence through the payment of a fine. See infra at 770.
. Mele apparently was being counseled and treated for substance abuse. This Court does not find specific facts with respect to this point, but simply observes that these facts sufficiently appear to be true from the entire record so that they could be taken into account by a sentencing judge.
. It was also alleged at oral argument that Mele informed a probation officer during the probationary period after his first conviction that he intended to drive and to drive above the speed limit. This Court accepts this information as factual for the purposes of this decision. This information does not appear in the sentencing memorandum of the second trial justice.
. This Court expresses no opinion as to which judge should resentence Mele except to note that Mele has recourse to the courts of the Commonwealth should he desire a resentencing judge other than either of the two justices who have already sentenced him. See Lena v. Commonwealth, 369 Mass. 571, 340 N.E.2d 884 (1976).