*1 Mich v. PAYNE PEOPLE op the Court Law—Sentence—Resentencing—Harsher 1. Criminal Sentence. upon Identifiable resentencing conduct the defendant which a imposing sentence, relies a harsher after the defend- ant has his appeal overturned conviction on and has been re- convicted, must sentencing. have occurred the first Law—Sentence—Resentencing—Harsher 2. Criminal Sentence Law. —Constitutional Imposition of a harsher following reconviction de- appeal fendant’s successful constitutionally impermissible because the record of the second did not disclose objective concerning information identifiable conduct on the part of occurring the defendant after the time sentencing proceeding.

Concurring Opinion

Williams, J. See headnote 1.

Opinion Dissenting in Part

T. E. Brennan, Law—Sentence—Dependant’s Subsequent 3. Criminal Conduct— Constitutional Law. empowered Courts are to mete out sentences the conduct for convicted; which the stands that conduct and of only defendant conduct, factually has been established in the man- required by ner process any other, constitutional due sub- sequent, duly conduct with which the has not been defendant charged, duly which he had not been convicted accord- Reference for Points in Headnotes 2d, Am Jur Criminal Law seq. [1-8] et 569§ the state and the nation ing and laws the Constitution depriving person simply be made basis cannot IS, 1). liberty (US Const, Am § *2 — — — Vindic- Increased Sentence Law Sentence 4. Criminal tiveness. upheld imposed a new trial should be where

Sentence guilty judge previously pled had a different before defendant charge as the and received a shorter sentence to the same judge imposed sentence, the last the who candid statement of resentencing, time was made on the record the of free of any vindictiveness. taint of Opinion for Affirmance J. Sentence. 5. Criminal Law—Sentence—Increased years’ imprisonment to 25 sentence to 50 con- Defendant’s pre- murder, with intent to commit when viction assault of viously pled judge guilty had a before different defendant charge and sentence which was the same received a shorter granted, proper, the trial set aside and a new trial was where judge crime, and heard the was able to observe details of sentence, judge as a and increased his not the defendant against appealing, be- punitive but measure defendant for impression and the cohort’s cause the nature of of offense by defendant, no claim and where there is defendant of judge that the trial was vindictive. Sentence—Appeal and 6. Criminal Law—Sentence—Increased Error. improvident appeal was and where bootless

Defendant’s left plea guilty aside, set a new trial was sentence were jury granted, subsequently a the same he was convicted greater imposed, and a was then with credit crime sentencing earned, because the allowed time served and the statement on the second conviction affidavit filed Michigan Supreme showed: judge trial with the greater jxidge opportunity than to observe had defendant judge imposed sentence, de- did the who defendant first mind, depravity liberately crime, he showed committed repeatedly lied judge in the the trial defendant trial, the increased sentence under oath at a new trial. because obtained defendant Mich Law-—Sentencing—Judges—Discretion. 7. Criminal Michigan Supreme right usurp Court has no honorable statutorily judges exclusive discretion trial court confided in the convicted felons. Law—Sentencing. Criminal 8. constitutionally precluded, imposing A trial is not sentence, greater new whether less than or sen- tence, light subsequent in the to the events first may light upon life, health, have thrown new the defendant’s habits, conduct, propensities. and mental and moral

Separate Opinion

Adams, J. See headnote 5.

Appeal Appeals, from Court of Division 3, Quinn, affirming J.,P. Holbrook Burns, JJ., and T. M. Byrns, Berrien, Chester November J. Submitted *3 (No. 23, 1970. No. October Term Docket (No. 52,618-1/2). May Resubmitted 1971. April 1971.) Term Decided November 1971. App

18 Mich 42 reversed. Leroy Payne years’ was sentenced 19 to to imprisonment plea charge guilty a his Upon assault with new intent to commit murder. again trial, offense defendant was convicted of the imprisonment years’ and sentenced to 25 to 50 appealed already credit for time served. Defendant ap- Appeals. to the Court of Affirmed. Defendant peals. resentencing. Reversed and remanded for R,obert Kelley, Attorney

Frank A. J. General, Derengoski, Taylor, General, Solicitor Ronald J. Prosecuting Attorney, As- Smietanka, A. and John Prosecuting Attorney, people. sistant for the Philip Brown, A. for defendant. Opinion op the Court Defendant-appellant C. Le- T. M. J. Kavanagh, County

roy Payne Cir- convicted in the Berrien plea, by guilty assault with intent Court, cuit March he 8, 1963, was sentenced murder.1 On Philip A. Hadsell to a minimum Honorable years prison. years in maximum of 40 of 19 and a subsequently hearing At conclusion of ordered Appeals, Payne’s guilty plea and a prior in- were determined to have been confession voluntary va- his conviction sentence were and change granted for a of venue was cated. Motion County. Payne of assault Kent was reconvicted County by jury Cir- to murder Kent with intent County, Upon remand to Berrien cuit Court. Byrns, County cir- Berrien Honorable Chester presided judge, Payne’s Kent who had over cuit prison County a term of him to sentenced trial, “good years served 25 to with credit for time time” earned. ap- excerpt transcript of' following from the pertinent Payne’s

pellant to his second im- discussed, hereinafter claim, posed was excessive: * ** Payne, presiding "The Court: you day your I trial, want to tell over three jury’s agreed any I with the reservation,

without testimony your guilty. own I heard verdict your had and of course cross-examination, I heard your hearing crime ample opportunity about an was sense- It of extreme violence. was one which less frankly, it reflected I think ; cruel, it was *4 grace depravity for the but not heart and physical Yost, good condition of Victor God, and the twice, but not once, he He was shot not survived. still suf- suffered and is Mr. Yost has times. three you fering inflicted. fatal wounds that from the near MOT,A (Stat 28.278). Ann 1962 The crime is Rev 750.83 § § years. any or number of imprisonment life punishable op the Court testimony You were there when doctor’s reflected spent surgery that it took four some three to hours trying to save man’s a this life. Mr. Yost is hrave complimented and able officer and is to be for the excellent and manner fair in which he testified at your police may trial. a officer, And whether he popular symbol not someone or is nevertheless a authority police whoever a and shoots officer in duty only only officer; line of assaults not not society man, but he assaults all of because law and order cannot exist unless our officers have respect they protection and the are which entitled precious rights citizenship to. These are you recognize

and I and which would if not exist it were not for like Victor who are officers Yost willing only preserve but work, even die to rights. these especially “Assault with intent to murder, when gun is used, a ais most crime when serious police duty. victim is a officerin I have line felt judge since I have been that crimes of violence are weapons and I worst, have felt that the use of a shows willfullness and a of which we hatred society today. have too much of our you appeal, you wipe “When and win a new trial, previous clean the conviction and sentence. You presumption have then a of innocence which I think the record will bear out and of which I maintain I protected your throughout your trial and which attorney insuring. was most zealous in This longer no bound earlier I cite sentence. authority, Reporter, an Poole, versus Michigan, Appellate [sic]. P-O-O-L-E, your you might acquitted “In trial, have been you larger set also risked a sentence with free judge judge this is a be- different different your ago years tween and of five one-half today; judge who had more account detailed you during what did trial than the new you plea guilty who sentenced on a and did not *5 op the Court impressions opportunity nor to the same have form colleague distinguished my all the details hear did of particular in trial. this it came out . larger I setting what sentence than a “I not am appealed you or because mimites set in will few expense any or new trial. work added because of of every you, has American citizen and I assure This right appeal As an and to redress. to an absolute protection they and are use the citizens, entitled to gives like rights them I would to to law and that the I more careful than no will be think man we no because he he because this which reward insure punish guilty pleads pleads man and we no larger sentence which im- The innocent. pose the crime and on the nature here is based you impressions and I which on the formed days what and three the crime for your your honestly char- crime showed believe I a man- I had considered Now, acter and attitude. datory maximum term sentence because life any years up imprisonment could term reason that here only imprisonment. I am life past your looking doing into I is that am not history this searching thought given I and have very up right very You last have to the moment. .background you poor family are reports good Payne. were school blame, Mr. Your years you approximately in the three served discharge Army you while earned an honorable although a court- there was believe service Payne? martial—wasn’t there, just Respondent: matter. a minor “The It2 you would call a court-martial— It wasn’t what punish- Administrative—company “The Court: ment? Respondent: “The sir. Yes, you an honorable “The did receive Court: But discharge? or defendant.—Reporter. Defendant 785.1, require called respondent parties an action he transcript. designated as GOB 1963, 201.1 plaintiff 386 Mich 84 Opinion of the Couet Respondent: sir. Yes, “The your you “The Court: And efforts, own com- pleted high employers you school had all *6 you good employee. said that were a have also prison you your the checked at where have been and reported during past good conduct there is the as years you and some odd months that have four you using been there that have educa- been the tional and rehabilitation are available. facilities are the which I “These factors have considered good ledger frankly on the side which have you imprisonment.” saved from a sentence of life (Transcript pp 4-9.) (Emphasis sentence, added.) Appeals The Court of affirmed J. and P. (Quinn, dissenting). J.; T. M. 18 Mich J., Holbrook, Burns, App Appellant granted. 42. is here leave 383 on Mich 760. questions propriety and constitution-

ality imposing a harsher sentence after a defend- appeal ant has overturned his conviction on long been reconvicted have divided American Alstyne, courts. Annotation, 12 Van 978; ALR3d In Gideon’s Wake: Harsher “Suc- Penalties and the Appellant, (1965); Criminal L 606 74 Yale J cessful” (1968). 28 L 64 Md This Comment, Rev Court re- cently People problem Olary considered the v. (1969), pen- upholding 382 Mich 559. In harsher alty upon Olary majority distin- reconviction, guished of North Carolina Pearce3 case v. 3 yet The United States Court has not whether decided Pearce applied retroactively. be Although to the Court twice granted question, certiorari to consider the in each case the writ Mary- subsequently improvidently granted. dismissed as v. Moon land, granted cert (1969), 2135, (89 395 975 S 23 L Ed 2d US Ct 764), writ (1970), (90 dismissed 1730, 398 US 26 L Ed 2d 319 S Ct 262); granted States, (90 (1970), Odom v. United 904 cert US (91 Ct Ct 26 L 559), (1970), S Ed writ We 2d dismissed US S L 122). predict high 27 Ed Court’s 2d to decline question ap- prospective answer to the of Pearce’s or retroactive Opinion op the Court y. (89 (1969), Bice]

[Simpson 395 US 711 S Ct 656), discussed, 2d hereinafter L Ed Olary’s grounds that defendant “original imposed justice by a of the the sentence was required legally peace, trained, to duly judge, li- a circuit second sentence was censed provided by report lawyer, him, to as probation officer statute, to defendant’s background, attitude, record the circuit to enable punishment fit offenders.” 567.) (Olary, supra, at supra, distinguishing Pearce,

Further the Court Olary’s second and resen noted that conviction having tencing by his were not occasioned demon superior tribunal strated but constitutional error conviction was tainted with *7 right by a novo trial de his decision to assert his to **4 in the court.* circuit Assuming supra, properly Pearce, was distin supra, present guished Olary, the do not think in we Olary distinguishable this is because case unlike way by felony reversal a conviction, case involves a appeal error, and dis of constitutional of because imposed by judges parate same sentences, provided whom were with both of court, level and reports.5 statutory presentencing therefore, *8We, the plication, instruct when ambiguous portion all by the United States stitutions trial cause 391 US 145 1970), ^[4] criminal Nor is It is (88 in more Mr. circuit noteworthy S our but require stricter severe offense Ct F2d Payne’s defendants (88 trial 2270, court, we present 297, S Ct punishment. will charged courts as to the ^[20] that of involving than that Supreme Court. 1444, 20 L apply Pearce, case are entitled Olary, Ed 2d standards is serious and conviction distinguishable Pearce harsher sentence imposed in See, supra, L discussed 1412). Ed e.g., to in Michigan 2d involved a misdemeanor. due the Duncan v. Louisiana But see procedures 491), justice infra, pending process threatens present from by rehearing interpretation court. guilty Wood v. Ross appeal Pearce, in of ease in order to the defendant many law, plea, den 392 US clarification supra, our Con respects that de novo (1968), of an While (CA4, be is, Mich Opinion op the Couet consider proceed, appellant contention Payne’s of imposition that a harsher sentence following successful reconviction was violative appearand of the Fourteenth Amendment due process stand ards and down in North procedures laid Carolina v. Pearce, supra6 only sentencing judge because opportunity second had the gain impressions throughout of Mr. and his crime In trial. Simpson companion Rice, Pearce’s case, Mr. Simpson’s original con by plea; guilty victions subsequently by were he was reconvicted jury, whereupon he received a stiffer sentence. Whatever our own are, ignore views Court did cannot we the fact that the United States Simpson find (one this difference between trial) and (two trials) worthy Pearce distinguishing holding note. The regards the Court as upon harsher sentence reconviction applied fully to both cases. 6 My asserts, infra, p Brother 106, that Pearce is “doubtful Black is, lacking precedential faird” Stewart’s in force, that because Mr. Justice opinion gain for the Court failed to the unreserved endorse ment of Pearce’s following quotations at least five Justices. The two concurring opinions signers demonstrate that thereof give declined to Mr. Justice Stewart’s their unreserved en primarily they dorsement because go would further to declare that the United absolutely States imposition Constitution forbids the a harsher sentence reconvietion: agree “Although I with the process, Court as to the reach due go I my would further. any It if view that reason a new granted is imposed and there is a time, conviction penalty second the second penalty, cannot exceed the respect first if is had for the guarantee against jeopardy.” (Opinion double Doug- of Mr. Justice joined las, by Marshall, pp Emphasis added.) Justice 727. judged entirely “Were these cases to within the traditional the Due Process Clause the Fourteenth Amend- confines of

ment, substantial should, difficulty, myself but not without some find agreement with the result reached the Court. How- ever, Maryland today, the Court in Benton v. [(1969), 395 US 784 * * * (89 707)] held, S 23 L my Ct Ed 2d dissent, has over Jeopardy Double Clause of Fifth Amendment is made applicable Clause. States the Fourteenth Amendment Process Due * ** Benton, my “Given it is view the decision States, Green v. United (1957) 355 US 184 Ct 2 L S Ed 2d [78 *8 199], from time, which I points strongly dissented at the con- the * ** clusion, Double presently by my also Douglas reached Brother the that Jeopardy governs Clause the Fifth Amendment both issues ** * decided the Court. that, “I Amendment, therefore conclude consistent with the Fifth a par- defendant who has once been to a convicted sentenced punishment may ticular placed again not on in jeopardy retrial be receiving greater punishment imposed.” (Opinion than was first Harlan, of Mr. beginning p Justice at in Emphasis partly 744. original, partly supplied by present writer.) Payne Opinion op the Court Supreme the United States Court held, Pearce In Equal neither Protection alia, that Clause inter . Amendment nor the Double Fourteenth of the Jeopardy imposes Fifth

Clause of the Amendment upon bar a more severe sentence an absolute But further held the Court reconviction. Amendment Due Process Clause of the Fourteenth against requires a defendant that vindictiveness having successfully conviction attacked first part play receives; he no in second sentence must apprehension of the freed and the defendant must be part retaliatory of the motivation on the of such judge. consti- of the Federal Resolution requires question appellant raised tutional following interpretation application lan- guage supra: Pearce, from precluded constitutionally “A trial is not * * # imposing whether sentence, froin a new greater in the sentence, or less than the light may subsequent first trial to the events light the defendant’s new

have thrown moral health, and mental ‘life, habits, conduct, propensities.’ [1949], v. New York Williams 1337]. [69 L93 Ed Such S US Ct may judge’s from attention information to the come from itself, evidence adduced the second presentence investigation, defendant’s new prison possibly or from other sources.

record, sentencing judge the de- to consider freedom of a subsequent conviction the first conduct fendant’s con- imposing than more in new sentence no approved fully principle, Williams sonant with the in Pearce holdings eight sat Justices who Thus the six of the Since three firmly present case. support position we take Pearce sign Mr. Stewart’s Justice the Justices who declined to im- absolutely forbids opinion Constitution think the United States present position upon reconviction, a harsher Court. hardly can United States be said to “outrun” the infra, p 111. opinion, See Justice Black’s *9 Opinion op the Court supra, may adopt v. York, New that State ‘prevalent philosophy penology modern that the punishment merely should fit the offender and not (At 723.) p Id., the crime.’ at 247.” 4Í. w *(cid:127)& w “In order to assure of such a the absence motiva- [i.e., tion vindictiveness], we have concluded that judge imposes whenever a a more severe sentence upon a defendant after a new trial, the reasons for doing affirmatively appear. his so must Those rea- upon objective sons must be based cerning information con- part identifiable conduct on the of the occurring defendant after the time sentencing proceeding. upon And the factual data which part macy increased sentence is based must be made legiti- record, so that the constitutional may fully of the increased sentence re- (At appeal.” p 726.) on viewed language ques- following The above raises the imposes May tion: who sen- harsher upon rely tence reconviction on information not possessed by judge regarding the first defendant’s prior sentencing? conduct to the time his first imposed by Judge Byrns If not, the sentence was appears only knowledge excessive because it Payne’s his conduct first “good prison he had earned time” had while advantage taking prison been educational and supra, Judge Byrns rehabilitation facilities. stated, impose he his sen- based stiffer decision impressions Payne tence on formed crime during the trial. question primarily am- arises because of

biguous language following in the supra, quoted Pearce, earlier: penalty] [for imposing a “Those reasons harsher concerning objective must information be based op the Court part conduct tbe identifiable defendant original sentencing occurring time of the after the 726.) (At proceeding.” p *10 * # original “occurring Does sen tencing” “identifiable refer to defendant’s conduct” acquisition “objective regard or to information” original sentencing? ing before or after his conduct split Pearce lower courts Since have decided, interpretation language. of the Some over opinions above only conduct of the defendant

hold occurring may original sentencing relied after his be upon by judge imposes sentencing who harsher penalty. e.g., (1969), Barnes v. United See, States 753) (dissenting opinion); App (419 171 136 DC F2d Henry (EDNC, 1969), Supp F 725; Torrance v. 304 (MD 1970), Supp F 711; v. Neil 311 Tenn, Pinkard (1970), 193 Walsh v. 358 Mass Commonwealth (260 (dictum 916). 911) hold or NE2d Others regardless of indicate that when the defendant’s first occurred, “identifiable conduct” if it comes judge’s sentencing time of attention after the support sentencing may first it be relied e.g., penalty. States a harsher United v. See, (CA 1969), 557; Kienlen F2d United States 10, (CA 1969), States 1205; Gross 416 F2d United v. v. Barash

(CA 1970), 428 F2d 328. interpretations conflicting Pearce re- of the quirements were not resolved accompanying Supreme its the United States Mary- in Moon dismissal of a writ of certiorari (90 (1970) L 2d 26 Ed land US S Ct 262). granted to consider Certiorari had been applied supra, retroac- Pearce, should whether tively. improvidently dismissing In the writ as granted the Court said: respondent appendix has brief, “As an to its presided at the

filed an affidavit of the who op the Court setting in detail the reasons he out trial, second 20-year imposed prison sentence. Those reasons ‘objective concerning clearly information include part of the on the defendant conduct identifiable sentencing occurring- after the time (At p 320.) proceeding.’” copy of referenced trial have obtained a We Unfortunately, purposes, judge’s for our affidavit. Maryland judge Mr. Moon resentenced who the first occurred after considered conduct which sentencing. Moon tell us whether Therefore, doesn’t though there Pearce allows harsher sentence even occurring (known) conduct of the defendant no support a would after the first *****7 sentence.1 stiffer requirements by Pending clarification of Pearce’s persuaded *11 Court, we are the United States interpreted have those courts are correct which that require Pearce to that the “identifiable conduct” upon resentencing judge relies the defendant imposing a must have occurred in stiffer sentence sentencing.8 the That the Pearce first after by is Justice intended this result evidenced op- opinion advocating one sentence White’s posite result: tion of here.

misleading Odom from Justice Dethmers’ v. the writ of reach Mr. Odom’s motion to tion. The improvidently great pains to referred to at on the sentencing proceeding, Similarly, Justice Black’s the Pearce issue. part of Pearce’s greater for two reasons. opinion gives as the reason for resentencing.” distinguish granted Pearce severity requirements petitioner per assertion, United and that set aside his second sentence “makes that curiam of the second sentence Second, contrary handling States, supra, the order of the district occurring First, (Odom, infra, was opinion accompanying the new since Justice clearly the two Olary, p 106, supra, information does not dicta and not at Olary the time dismissing p 112.) subsequent was Dethmers no Pearce dissenters did not based answer our Justice dissented was of the court dismissal of interpreta- on conduct controlling specifically first Olary original denying it clear writ as ques took Opinion op the Court join opinion except “I the Court’s my that in view procedures [standards governing Part II-C upon reconviction] harsher sentence should author- ize an any increased sentence on retrial based on objective, identifiable factual data not known to the original sentencing at the time of the proceeding.” (Pearce, supra, p 751.) at interpretation Furthermore, our inis accord with grammar ambiguous language. of the Pearce “Information” does not it “occur,” is obtained. “Conduct” “occurs.” imposition

We conclude, and hold, that the of a upon harsher following appel- reconviction Payne’s appeal lant constitutionally successful was impermissible because the record of the second “objective does not disclose information concerning part identifiable conduct on the occurring’ defendant after the time of the sentencing proceeding.” (Pearce, supra, p 726.) disposition

Our of the above discussed issue ren- unnecessary appellant ders Payne’s consideration of possibility contention that of a harsher sentence unduly reconviction chills the exercise of the right appeal granted by one’s conviction Michigan § Constitution of art 20.9 We carefully appellant Payne’s have examined other allegations of error and find them to be without merit.

Since written, the case has been *12 supplemented by reheard and the records additional by judge. Nothing statements dis- new, the trial position-wise, has been added. result remains the same. See dissenting App T. M. 18 Mich Burns’ below.

42, 46. Mich Opinion Williams, J. remanded to Berrien

The case is reversed and resentencing County for Circuit Court in accordance opinion. with and JJ.,

T. G. Kavanagh, Swainson, Williams, concurred T. M. C. J. Kavanagh, (concurring). I with the J. concur Williams, analysis and it Justice’s of Pearce the fact Chief controlling. Personally, I however, think Justice opinion makes better sense. White’s (dissenting part). agree T. I E. Brennan, analysis of Pearce with the Chief Justice’s decision. however, the United States believe, that very, very wrong—dangerously, illiberally wrong—in concluding a harsher imposed

penalty for a defendant could * # * # “ * * * * * occurring after conduct * * # original sentencing .” empowered for Courts mete out sentences are convicted. the conduct which the defendant stands only estab- conduct, That has been conduct, required factually constitu- lished the manner process. tional due subsequent,

Any de- with which the conduct other, charged, duly fendant has not been according duly had not he been convicted the nation Constitution and laws of state and depriving per- simply made basis for cannot be liberty. son of his per- point makes

The Thirteenth Amendment fectly abundantly clear. involuntary slavery nor “Section 1. Neither punishment except whereof crime

servitude, the party duly exist been shall shall convicted, have *13 Payne by Black, J. States, any place subject United or to within the Am 1. jurisdiction.” Const, their US § the case stands for the extent that Pearce the To a harsher on sentence, imposed that re- proposition or a for, to, deterrent the punishment trial as it is sound right appeal, good, exercise law. constitutional the com- ignores plain

To the extent that Pearce Amendment, it is horrible mand of the Thirteenth and one and Federal every state mistake, of conscience to gift ought endowed judge, constitutional to the attention our forcibly call United States Court. on the superiors I am Payne, As this case of satisfied made judge, statement the circuit candid of any free resentencing at time of record should the sentence vindictiveness, taint be upheld. Payne’s affirmance). appeal, Mr. J. (for as- (383 760),

granted January Kavanagh M. Associate T. to then Justice signed 16, 1970 December year. submitted last and duly then manned submitted assignee Justice re- reversal and opinion calling of six an That opin- its tenor. accordance with in our appear will withdrawn, since ion, reports. decision, the Court prompt to attain

In effort submitted, been had appeal before whom opinion drafted an other work and dropped writer was deliv- for affirmance. That standing It 1970. December Justices ered other beginning reports, in our will appear infra then and my adequately 106. communicates It p eminently Judge Byrns’ of Circuit view present Mich Opinion by Black, permissible perfectly constitutional action when, upon full-fledged jury of Mr. before a county county of another than the of indictment (ordered upon Payne’s motion for venue *14 change), Payne again Mr. was convicted of assault (August with intent to murder and sentenced 30, 1967) years imprisonment to 25 to 50 with credit distinguished time allowed for “earned”; served and by Judge from his Hadsell, sentence in 1963, imprisonment. years to 19 to 20 report. There is more to December 30, Jus- appeal, Kavanagh tice T. M. “held” decision automatically eliminating thus Justice Dethmebs participation, being the latter’s term then due for end in less than 48 hours. Next came a mem- newly orandum from elected Chief Justice January Kavanagh dated 22. it he submitted With standing opinion, to us a for substituted likewise resentencing. reversal for con- The memorandum : cluded split apparently

“Since case, we 3-to-2 on this are we should to the entire consider resubmission present hopes obtaining a sounder Bench of precedent. anticipate inconvenience would little litigants since resubmission, to the in the event of originally the case on briefs.” was submitted next of submission internal event was that present of a Justices, to the other writer, 1. It reads: memorandum dated March repeats the resolution “What is introduced below orally is in writ- offered on December 30. This one supplemental ing, forthcoming for reference in a Mary- opinion. Counting procedurally v. on Moon [398 262] v. Odom land L 2d 319; 26 Ed US 122] [— I wish United L Ed 2d —; States US to have the Court resolve: Payne v. by Black, by- through request clerk submission we “That supplying, ‘in detail’ as Byrns affidavit an 8, 1970), Maryland (June Judge Pugh in Moon v. did August imposition 30, may reasons Payne, de so this Court Mr. allegedly Stewart’s within Justice whether, termine ‘ambiguous’ Pearce, North Carolina ‘there a retalia 656, was L Ed 2d 395 US sentencing judge.’ part tory motivation will note that members the Court “The new nearly years two Pearce was decided June second time, sentenced the since, objection has twice over Justice USSC Douglas, say is retroactive refused that Pearce in effect.” adoption by the resolution came to

That ordered— March 2. On same date the Court *15 sponte—a rehearing Payne’s appeal. of Mr. sua provision rehearing order for concluded with The [be] forthwith, without that “the cause submitted argument.” additional briefs or April 19 our to direction on clerk Pursuant Byrns Judge wrote as follows: you to has refer North “The Court asked me to (23 L 1969 Ed Pearce, 23, Carolina v. decided June 656); Maryland, 8, 2d 1970 Moon v. decided June (26 262) L States, 2d v. United de- Ed and Odom (27 122), L Ed 2d cided November the ty 1970 you presided Payne’s Mr. Kent coun- fact that August in and were the second judge. question on rehear- for review “The in this Court considering ing 2 is ordered March whether Payne’s Judge by in 1962 and the Hadsell sentence August imposed by you greater somewhat sentence county second following trial, the 30, 1967 the Kent You Pearce. rule of ‘harsh’ within the sentence was by will how and has perceive why question arisen Pearce, examination of Moon Odom.

“Your (prior reasons down of given handing the 3 cited for the cases) imposed August appear in 30, 1967, transcript of sentence filed in court on your 8, 1967. The September Court wishes now that prepare submit an affi- you davit, procedurally was submitted to the Supreme Court the Moon Case, in by Pugh order Court determine whether there may was or vindictiveness the Supreme Court addressed itself in Pearce.

“In order that you may ascertain how precisely this was handled in Moon you are furnished here- a copy of Judge sworn Pugh’s affidavit, to by him October 1969.”

10May Judge Byrns responded letter to the clerk, an affidavit attested him. enclosing is much affidavit the same as that which United Supreme States and acted accepted upon, grant of certiorari for review of v. Mary- Moon land (1970) 26 L Ed (90 US S Ct 2d 262). It reads:

“In accordance with direction of Court of Michigan cause, I, the above Chester J. Byrns, sworn, first that: being duly say “1. I am and 1,1967, have been since one January judges the Second Judicial of Mich- Cicuit igan (Berrien County).

“2. Leroy Payne, defendant-appellant in the above cause, pled guilty December before the 14, 1962, Honorable A. now Philip Hadsell, Judge, Circuit retired, to the to murder, crime of assault with intent *16 and was sentenced to 19-20 years.

“3. On June 15, suppressed confession of Mr. his Payne, set aside and guilty plea granted him a new trial based on his claim that improper means were used fession which he police his con- to secure

claimed involuntary. Payne Opinion by August granted Payne’s “4. 4, 1967,1 On Mr. mo- change tion for of venue and transferred and jury Rapids (Kent County), trial in Grand heard Michigan, guilty which resulted ain verdict of with assault intent to commit murder. During opportunity, “5. said trial I had the

Judge Hadsell not, did to observe defendant for days important, many three far and, more to hear Payne’s of the more details of the and Mr. crime participation Judge. in it than Hadsell as who, arraignment transcript only inquired shows, had defendant whether the defendant committed the as- against gun sault Yost Officer with intent to Payne kill only murder, and to which Mr. answered ‘yes.’ Judge Payne “6. Unlike Hadsell who Mr. had at the time be- only plea fore him for a few minutes again opportunity sentence, at I had the to ob- Payne serve and hear Mr. who took the witness stand and who was examined and cross-examined extensively. Payne’s story Mr. and claim in trial being of not at all involved in the crime was in direct Judge conflict with what he told Hadsell both at arraignment plea guilty where he not only expresed admitted his crime but sorrow and re- gret it thereby and showed a remorse for his crime. At time of Hadsell said he Payne’s regret. believed Mr. claim of At the time sentencing by August given me on 30, 1967, when opportunity anything to state he wished me to Payne replied, ‘Nothing.’ consider, jury “7. At repeat- me Mr. before edly only denied shooting under oath Officer Victor but Yost, claimed under oath he was home with for waiting his wife and had while earlier at church Sunday gotten gun children at School shooting security used in the Yost for a $3.00- stranger gun loan to an unknown Payne’s allegedly night car were stolen *17 by J. Black, shooting. a tissue court believes was This jury. so did lies and Frankly, then am now of I was and

“8. repeatedly Payne lied oath under at the Mr. sentencing judge receiv- aWhile trial before me. ing regret plea expression guilty from and an a might find resolution to remorse and a a defendant rehabilitate from limit the might which defendant, such a in Mr. I so find this sentence, could not charged judgment Payne. termining of de- was with long confined, how an individual should be judgment depends my of his char- in turn for rehabilitation accord- acter and his real desire ing impression I receive. to the facts People v Bradford “9. At the trial Lionel (Berrien Michigan Supreme No. X-768, circuit Payne, 51072), a with who No. codefendant guilty by jury assault intent found was (who along with murder Plummer shot Charles was country at the Officer Yost but who was out (Bradford Payne) Plummer testified trial Mr. trial 180) transcript pp he 49, while 50, ground, (Plummer) lying on the wounded and was Payne left fender came back and stood deliberately right him. fired at the car and (February Payne “10. testified Bradford’s 1963) Payne were driv- that Lionel Bradford ing Pontiac on Novem- a 1955 blue and white 2-door early having morning After hours. 5,1962 ber Bend, Indiana, broken into restaurant in South Michigan, clothing Harbor, near Benton and a store stopped Payne were testified that he and Bradford police M-139. told vehicle on Bradford had stopped, they Payne he As ‘would not taken.’ Payne jumped vehicle and Bradford and their began firing hitting of them. both officers, at the two “Payne going back of the offi- remembered to one exactly happened. couldn’t recall cers but what then subsequently jumped car and men into their Both gun Payne giving ravine fled, to Bradford Payne Opinion by (Bradford transcript returning home where he subsequently 45-60) pp arrested. September nearly years three “On by Judge years Hadsell two his sentence before and about *18 granted Leroy I him a trial, new supporting appeal signed an affidavit an of Bradford gave testimony’ claiming he ‘false at the Bradford only the trial. He said that that trial never admitted ford had denied shot. reason he testified at police, was to of that Bradford due fear the committing Brad- and that crimes, being present when the officerswere Payne had swore in his affidavit he Further, hardly prior being arrested, known Bradford to that he had been the with Bradford on either day shooting date of the or the before. Payne greater

“11. far me, At the before present plea detail than would been of have guilty, beyond it was established me before reason- Payne participated able doubt that Mr. had in the upon wounding deliberate, cold-blooded attack three times of OfficerYost under that Mr. conditions properly Yost could not himself, defend which I depravity felt then and do of mind. now showed “12. I had the of save OfficerYost’s life nature details of the wounds fight and the medical to surgeon, Reagan,

Mr. Yost and from his Dr. Robert damage continuing well as the residual plea guilty Yost, which Hadsell on a would not have had. many

“13. I had as a result of the trial and facts brought by only out therein conclusion di- providence Payne vine and not because of Mr. was the life of Officer Yost saved. sentencing, my

“14. As stated at the in- time years crease in sentence to 25-50 not because was got (which the defendant for and asked a new trial granted) change (which I granted), or a I venue but because of the conditions and facts stated Payne me to Mr. at the time of as well Black,

Opinion by J. I do not above matters believe were as the Judge Hadsell. all known deponent says not.” “15. Further etc.] [Subscribed, sworn, appellate was de- series The next event livery Justice-, Justices, other Chief opinion for That done under his third reversal. Presuming writing September at this date of 21. opinion of review is due to be the that this third plus ensuing foregoing respond Court, day presents this 14th October. my separating appropriate lines

Between outset, at the mentioned affirmance, inserted here. appeal Defendant demands plea compare

that we *19 County, guilty sentence with his second Berrien County upon by jury after conviction a in Kent change by the doubtful venue, of and that we find (1969), faird 4-2-1-1North Carolina v. Pearce of 656) (89 L 2d US S 23 Ed Ct unconstitutionally more second sentence was “harsh” than the first.1 corresponding Pearce in

In considered vein we People 6, 1969), (October Olary 565- v. from no dissented 568,wherein member of the Court posed handling for of the issue Justice Dethmers’ us blooded bullet Payne to were automobile; gun years later. major By later apprehended crippled car plea shooting get surgery by to a the officer into action. jury verdict, guilt Yost’s stop. to save later. Yost was police to the gun Not one of officer a scout ear him. Payne arm; charge Payne’s Yost as the latter He and his hence of assault with Payne’s critically managed having previously crime consisted he was companion drove three shots wounded to survive unable to approached intent missed. signaled the of the to away but subjected draw murder, Payne’s testify cold- One his Opinion by Olary onr unenthusiastic view In rather Pearce. up 566): (p was summed of Pearce requirement amazing seems to rather “Then imposed greater express a sentence that, if is be sentencing judge conviction, the second after placed in the record his reasons to be must cause doing, of the defendant based on conduct for so occurring least, on or, first after the coming subsequent after to the information the first sentence.” Olary question: I

Proceeding today’s am from majority Court, seated to find that a unable (if Pearce, committed determination beyond any affirm- was commitment indeed there prece- dependable constituting ance) anything paragraphic except context, in full which, dent (p 726): written Mr. Stewart Justice of such motiva- assure the absence “In order to judge im- whenever a concluded that tion, we have upon poses a defendant a more severe sentence after doing so must affirm- new the reasons for trial, upon atively appear. must be based Those reasons objective concerning con- identifiable information occurring part the defendant duct on the sentencing proceeding. And the time of the which the increased the factual data part so that record, made based must be legitimacy increased sen- the constitutional may fully appeal.” tence reviewed on writing reverse for re- M. Justice T. Kavanagh, plucked sentencing, Pearce’s has middle foregoing paragraph *20 thereof. the second sentence upon allegation judgment that the sen- and Then, “ambiguous”, grammatically our Brother tence is must conduct” finds defendant’s “identifiable that the satisfy way, in that order “bad,” recorded Mich Opinion by requirements quoted the constitutional of Pearce’s paragraph. object following legally

Now I cannot the deci- superior, Supreme sions of our United States may Court, whatever we think of such its deci- may processes sions criminal as dictate the of the right protest gratuitous I states. But do of in- hy short-of-majority opinion sertion, released Supreme qualifying Court, of an additional word opinion words or endorsers of that chose wedge attemptedly not to in. And is when that done hy way a subordinate Court bent on a or that way “interpretation” opinion of an of the only except. object interpret I Court, not but Let us apply they all of are, Justice Stewart’s as words might not as we wish he had written them. presently (had) I shall return to this “identifiable opinion. conduct” view of Justice Stewart’s For the question, merits the constitutional however, (18 App 42) expresses of Division 3 Mich Judge Byrns’ best view take of assiduous care Payne’s right hy Pearce, him claimed under Judge’s judicial duty and of the fulfillment of such regard. 46): following adopted (pp The opportunity

“A trial affords more hear all de- judge tails, to observe and defendant than does plea hy summary proceeding, a fact noted Byrns. right judge every The trial noted citi- appellate zen to seek relief fact and the that obtain- ing subsequent way such relief in no should affect a judge sentence. trial The then stated the sen- impose tence he was about to because de- appealed fendant had but of the nature reason impressions crime formed of defendant during days of trial. noted the statute under which defendant was convicted years, any authorized a life sentence or term of *21 109 v. by Black, J. history (poor family past except for defendant’s prison good background, rec- school, service imposed.”2 ords), have been life sentence would Judge Byrns’ the sentence ordered for “reasons”, (25 jury years to 50 with allowed time”), “good earned served and credit for time compared years before sentence meted out with the guilt (19 years), Payne’s plea of to 40 need on Mr. expatiation. context, Read in continuant no something portrays Judge’s due more than discourse of Williams with rule in effort to conform care (69 (1949), 245 Ct York S 337 US v. New expounded 1337) in Pearce which, later, was 93 L Ed at 723-726. Federal to the three

From that conclusion turn opinions (not appellate or District Court decisions dicta) ad- M. which T. conceded Justice Kavanagh per opposed application he, to the are mits “ambiguous” quoted sen- would make of above, (CA Kienlen are United States v. tence. The three (CA8, 10,1969), 557; States Gross 415 United F2d 1969), v. Barash 416 1205 F2d and United States (CA2, 1970), F2d 428 328. opin- up

Pick Kienlen. The unanimous first, provides plain why 11 ion Federal reason there speed Pearce. far loath to ahead of circuits are thus step- sentencing judge’s reasons Read first the 560) (pp ping up from 12 Kienlen’s sentence Judge years years, array 18 those Doing Payne. Byrns upon of Mr. declared upon judicial striking emphasis con- so, note the by gained actual sideration of information compared in each trial of with that which the facts, Judge Stewart’s opinion, Byrns complete ante did pp text or did not quoted, et of that which is seq. appears supply necessary record, Justice to determine required T. M. Kavanaoh’s whether Justice Opinion by provided plea. Finally, instance tbe earlier consider Chief Murrah’s conclusion Eien- (p 560) len—for the Court : colloquy, sentencing judge] [the “After he brief clearly further ‘I noted, want it understood that what *22 respect increasing I have said with or, rather, to the sentence imposing a more severe than anyone punish- had to before, is be taken not as rights ment for the exercise of constitutional this defendant.’ judgment, “In our meets Pearce standard. Naturally, that statement the trial was not

penalizing tutional exercising defendant consti right appeal not conclusive. But it is of indicative climate. The decision Finding was clear and rational. this sentence alto compatible gether the Maryland, we need Pearce, not consider possible retroactivity of Moon Pearce. See v. granted cert. 395 975, 2135, U.S. 89 Ct. S. (1969) 23 L. Ed. 2d 764 of on the issue Pearce’s ret roactivity.” brings foregoing to the fore that courts of the mind; States must ever bear in compulsion, good they right since there is no of gallop sense should never of undertake to ahead Supreme legal United skirmishers, States Court, as dangerous into the uncertain and brambles Fed- justice. eral criminal know never Subordinates top whether or of Court a state the Nation provide support will fact when later; a learned anew (cited People our post), Lee v. Charlie Woods August up February 14 held awaiting (1969), 395 US Jenkins v. Delaware (89 253). S Ct L 2dEd position, Here our a de- vis-a-vis constitutional Supreme cision of are the United we States forgotten warned all as follow, should not be People v. Opinion by Black, proceeding view the occasional error of ahead of onr superior questions say as Federal arise, as chron- separate opinion icled anent California Taylor (1970), v. 383 Mich 338, 367-372. Washington”, currently cynics “Made in as describe products Congress, applies truly but more respectfully to the decisions of the United States buy employ Court. We need nor them they warranty them, unless bear that of fitness which negotiable by under Article 6 is made the unreserved of five endorsements or more the Justices. Pearce is not so endorsed.

Ranking surely with Chief Justice Marshall’s mighty phrase, admonishing that “We must never forget, expounding.” that it is constitution we are (McCulloch Maryland [4 17 US [1819], 579]), L Ed Justice written has for us an Adams equally enduring warning. Appearing deterrent Apportionment Legislature (1964), In Re *23 Mich 418, 473, it is that he did “conceive not it to proper duty be the or function of this Court to attempt Supreme to outrun the Court the United Having crescently penetrating States.” admired my thought regard, omniscience of in Brother’s such respect paid due has since been thereto. Muske- See gon Prosecuting Attorney, Schaub, ex rel. v. Klev- ering (1966), People Mallory 377 Mich 666, 672; v. (1967), 378Mich 538, 584,3 Lee Charlie (1969), Woods 382 Mich 129. On the last cited Court, occasion the entire M. Justices T. Kavanagh joined deserving* acco- included, in the Adams lade. arising Payne’s from Mr. The issue 1967 sentence may by calling summarized be best attention to the than sayer’s judgment “It My risk is footnote better, indictment in say what Mallory I, and conviction ultimately concluded: subordinate does not come to for having predicted court risk direct pass”. a sooth- reversal by Black, alleg- over these Supreme duel most recent Court’s imprisonment. sentences to edly “harsh” second Maryland appears Moon v. in 5-1-1-1 duel That (90 26 L 1970), Ed (June S Ct 398 US granted Moon 262) writ theretofore where 2d granted”. improvidently Five dismissed “as was dispositive “the declared that members petitioner has development for the that counsel is case claim this is no clear that there now made process was vio- of Pearce standard that the due strength upon reached was That conclusion lated.” renouncing any claim statement of Moon-counsel’s Judge Pugh was vindictive”. “that development” “dispositive he If such present it noted that let then bar, cases as appear Payne does there of Mr. nowhere the brief Byrns slightest suggestion or hint that received case was that this “vindictive”; also Again, argument is it waived. oral on briefs with state should this Court not in order that rights the Bill of attempt manufacture more regard Bights, in that it should attend and that Supreme leadership Court? of the United States requires posed question dis- for review other No cussion. I to affirm. vote saying rehearing needs is no more that there

On than this: having granted Mr. Court,

First: The accepted petition and acted certiorari, Moon’s affirmatively Judge Pugh’s October copy of which affidavit, affidavit. That 1, *24 appendix out- concerned as so that an have attached may compare con- it instate counsel as well as state Judge Byrns’ veniently state- both with Court-requested 87) affidavit, (ante p at ment Payne Supreme persuaded Judge Pugh the Court that there- “objective concerning had set forth information part on identifiable conduct of the defendant occurring original sentencing time proceeding”, granted and that of certiorari the writ improvi- Mr. Moon therefore should be dismissed as (Moon 321). dent 320, at (November Odom

Second: In v. United States 1970), (91 122), 23US S Ct 27 L Ed 2d employ sentencing Court determined to Judge July McRae’s order of 1,1970, order hav- ing greater severity made “it clear that the of the part second sentence was on based conduct on the petitioner occurring of the time after the origiiial sentencing proceeding, and that the new specifically information was at referred to resentenc- (Odom ing.” 23). Again, at writ was dismissed improvidently granted. as question

My Why professedly is: is this USSC- unwilling accept devoted of a Court state sen- tencing Byrns’ Judge convincing even more state- (ante p 87), ment equally at sentence at and convincing (which affidavit last itself requested), persuasive equally or as more that something quite “retaliatory aside from motivation” Payne’s led to somewhat more severe sentence August 1967? pointed it

Is not true here, that out (ante p 106), writer his 1970 there at slightest suggestion is not “the brief or hint” in the Payne Byrns of Mr. “that ”? was ‘vindictive’ Michigan judges Clear it is are in court discipline go easy they “vindictive” if do professionals Leroy vicious like Lionel stopped deliberately Bradford. Both shoot grievously wounded, the officers, one of whom was *25 Mich Opinion by Black, J.

wholly helpless, prone pavement. on the And all possibly these could been known to facts not have Judge Byrns Payne sentencing until Bradford (For appellate separately had been tried. review of People Bradford’s see v. conviction, Bradford appeal App [1968], 696; 10 Mich leave to denied September 778.) 1968; 381 To conclude: projected retroactivity is issue of of Pearce present Payne, than

no more in this it now, case of inwas Moon and Odom when each was decided. thought attempted usurpation Without prerogative, suggest I Court’s exclusive accept may provisionally we the ultra-liberal hope quoted (ante 93) portion p that the Pearce day yet properly will some retroactive, held Judge Byrns’ find under Moon sen- and Odom that subsequent tencing like affidavit, statement and appeal Pugh Payne’s Moon, has left improvident. I conclude as the both bootless and Supreme Court did in Odom: apparent not now case does “Since that this it is present retroactivity North Caro- issue of supra, im- Pearce, lina v. dismissed the writ is providently granted.” right

Believing that this has no honorable usurp statutorily confided exclusive discre judges con in the tion victed trial court premise of Pearce’s first felons, adhere to the (Williams [1949], York immediate father v. New 1337]), [69 L distilled US S Ct 93 Ed 723: North v. Pearce at as it was Carolina precluded, constitutionally “A imposing whether sentence, a new other words, greater in the sentence, or less than the by may- subsequent first trial that to the light events light ‘life, the defendant’s thrown new

have pro- mental and moral conduct, and habits, health, pensities.’ ” affirm. I vote to before, As

APPENDIX Pugh’s by Judge mentioned affidavit, (Copy of Maryland [June 8, 1970], in Moon 264].) 2d 26 L Ed [90 262, 319 S Ct 398 US 47 “A” EXHIBIT EESPONDENT’S Montgomery County, Md. Circuit Court In The 7639 and 7640 Nos. Maryland of

State vs. Moon Mullene Dennis Mary- Attorney request General of of the At the day September, of to me on the 30th made land, following hereby statement: I make do presided I over 7th, June 6th On was convicted jury Mullene Moon who of Dennis 7640) (No. with No. 7639 indictments, under two murder kill and with intent of assault crimes deadly robbery Criminals) a (No. with Criminals). (No. larceny weapon grand Mich request attorney, At defendant’s imposed after the return of the was quest no verdict, re presentence investigation

for a was made be attorney. such was cause not desired defendant’s At the I was informed that another of this Court had sentenced the defendant to twelve penal years in the institution after his conviction of robbery deadly weapon. the crime There charging no trial No. under Criminals as sault with kill intent to and murder, at the trial. first was also aware the fact that the defendant was given a retrial result the decision of the Maryland Appeals Court of in the case Schow gurow State, vs. 240 Md. 121. I sentenced de robbery deadly for his fendant conviction of awith weapon, under Count One the Indictment in Crim period twenty years, inals No. 7640 to a and for period years of ten under Number Count Six year suspended this indictment ten sentence to be on condition that when the *27 defendant released from his under Count that he will First good get any on remain behavior and not in trouble any years I more. sentenced the to ten defendant charg One under Count No. in Criminals 7639, No. ing with kill murder, assault intent to latter suspended on sentence to condition that he remain good behavior when he is from sen released his tence under the First Count in Criminal No. 7640. given previously Credit was also for the time served by awaiting the defendant retrial from June 2,1964, (2 years days). 7, 1966, June and 5 At the time sentencing, of I took into consideration the follow ing facts: bludgeoned

1. The defendant the victim with a pipe rendering long period her unconscious for a of causing hospitalized days. time, to be her four for complete memory a She had of loss of the events Opinion by attending the crime. The testified of physician eye had head and that she was rather injuries, she disoriented, suffering headaches, confused, her over deep eyebrow had lacerations left that she hemorrhage contusions eye, marked around knee, abrasions of left right ear, behind was concussion, cerebral that she under concussion, period forty- care until July 6, doctor’s suffering from the affects nine that she still days her when she broke on the date trial injuries on the stand. in tears witness down from the 2. stole the sum of $400.00 The defendant victim, knew, attempt whom he means his her. prevent kill his identification her, to of an- and convicted 3. The defendant was tried crime assault with trial, offense his other ten years to kill intent which sentence murder, remain on good on condition that he suspended the sentence behavior when he is under released twenty years. The convictions of previous

4. defendant had for was sen- which he housebreaking larceny Kansas, Leavenworth, tenced to one in Ft. year a conviction Act in Carson Dyer under was sentenced to City, Nevada, in 1961 for which he 13, 1961, under three a conviction on years; April Nevada, Title Sec. 2312 Las Vegas, given (3) he was three years.

5. oath took the stand and under defendant he struck the defendant. When denied that had he attention that lawyer called to the defendant’s admitted took the stand in the previous he did victim, the defendant said hitting the *28 the victim he remember that hit testifying I was con- trial, believe, first which I did not sentenc- at this perjured vinced he himself had misconduct which I as identifiable ing, considered Opinion by Adams, J. part occurring his the time of sentence. sign

6. That on June refused to an 8,1966,1 order Mary-, to have the defendant transferred Penitentiary land to the Patuxent for Institution evaluation as to whether or not he awas defective delinquent under Article 31B, 5 of Section the Code Maryland stating Laws that “The. defendant twenty years has been sentenced to in the Peniten- plus tiary pended year two ten sentences which sus- were opinion

and the Court is of the years twenty plus year sentence of suspended two ten adequate sentences is no and therefore proceedings should he under filed defective delinquency statute.”

7. transcript I had not read the first preside and did not at the first therefore did trial, not know what facts and circumstances the Trial first took into consideration in de- years. fendant twelve

Respectfully submitted, H.

Jambs Pugh, Judge of the Circuit Court Montgomery County, Maryland day Subscribed and sworn to me before this 1st of October, 1969. A.D.,

Betty Ruth Belcher, Notary Maryland Public, (Seal) (for affirmance).

Adams, I concur with that portion desig- of Justice Black’s which he opinion. nates as his 1970