*1 PINKARD, ISAIAH rel. ex OF TENNESSEE STATE HENDERSON, Error, v. MURRAY in C. Plaintiff in Defendant Warden, Penitentiary, Tennessee State Error. 908.

452 S.W.2d 28, 1969. Oct. Appeals Tennessee. Court Criminal 2, 1970. Court March Supreme Certiorari Denied Columbia, Sanders, error. plaintiff Robert C. Fox, Gen., McCanless, Deputy E. Atty.

George F. Thomas Leech, Jr., Gen., Nashville, Dist. Gen., Atty. Asst. Atty. William M. Columbia, for defendant in error.

OPINION Judge.

OLIVER, plaintiff petitioner Pinkard, in error and Isaiah the serving penitentiary below, an inmate of is the where knowledge 99-year a sentence for unlawful carnal years age, appeals female under 12 this Court from of judgment Maury County the of Circuit Court dismissing, hearing, evidentiary petition his without an the filed under Post-Conviction Act of this Procedure (T.C.A. 40-3824). §§ State 40-3801 — only question presented petition and in the here upon

is whether aof more severe sentence in a reconviction second trial than he received in his original petitioner’s trial the violated constitutional rights. petitioner’s original

In April trial in imprisonment years 1948, he was sentenced to for 20 in penitentiary. Later in the same month court granted sustained and Upon his motion for a new trial. July again his in 1948, retrial he convicted a years Penitentiary. sentenced to 99 in the State punishment His contention that the increased process equal protection retrial violated the due clauses the Fourteenth Amendment is untenable. It unquestionable is procures judg that a defendant who against ment him to be set aside be tried anew the same indictment, or indictment, another 662, States, v. United Ball the same offense. Tateo, States v. 300; United L.Ed. 16 S.Ct. In L.Ed.2d 449. our 1587, 463, the rule that when the side of opinion reason is on of his obtains reversal defendant seeks and convicted must take the burden conviction and a new States, F.2d 561 v. United benefit. Miller with the 1955). (5th this settled law in State. Cir. Such Murphy State, 221 Tenn. 426 S.W.2d In present rejecting case, in the contention made same said: the Court argues assignment in this

“The further process Amend- 14th it is a of due under violation impose harsher ment of the Federal Constitution penalty Here, at trial. on retrial than *3 years orig- 20 at his received a sentence of years upon trial and 50 retrial. This Court con- inal involving jeopardy a double sidered similar contention (1966) [218 ex rel. v. Austin Johnson Tenn. State 244, 433,] 404 where this Court said: S.W.2d ‘(W)hen procures judgment accused, himself, upon his to be set aside own initiative and he volun- tarily accepts result, he his own then cannot jeopardy avoid the he act in which stands then jeopardy.’ subsequent it as assert a bar to a “Similarly, if the defendant seeks new must prepared jury be to face a new and a court with- being placed out limitations on their decision. correct, “If contention defendant’s taken as was technically escape prosecution. could further His granted initial conviction was reversed and a new trial 243 years less than jury’s of 20 was verdict because the period statutory over of 'some sentence minimum accepted, argument years.’ If defendant’s were 20 awarding precluded a sentence of from be would they years. not fix one for more than 20 could Since permissible.” years less, 20 or no sentence would 711, North Carolina v. 89 S.Ct. In U.S. (1969),

2072, 23 the United States Su- L.Ed.2d considering question, preme Court, the same said: “Long-established makes clear constitutional doctrine already beyond requirement that, discussed the imposes guarantee against jeopardy no restric- double length imposed upon tions of a sentence re- 1896, conviction. At least since when United States Ball, 662, 1192, 300, 163 U.S. 41 L.Ed. S.Ct. decided, been this it has settled that constitutional guarantee imposes no whatever limitations retry get- power defendant who has succeeded in ting principle conviction set aside. The first preclude provision does not this the Government’s re- trying a defendant whose conviction is set aside be- proceedings leading of an error in cause part conviction a well-established of our constitu- jurisprudence.’ Tateo, tional United States v. 463, 465, 1587, 1589, 12 L.Ed.2d 448. 1919, least States,

And at since when v. United Stroud S.Ct. 64 L.Ed. was decided, *4 corollary power has been that a it settled of the to re- try power, a defendant is the the defendant’s impose may reconviction, to whatever sentence be legally greater authorized, whether or not it is than * * * the sentence after the first conviction. (cid:127)“* * * jn here, in- not with place, deal we first imposition existing sentences, but with creases in wholly trials. Put- new wholly after sentences new however, the nicety side, conceptual one ting to that rationally dealt simply be cannot problem before us is retried A man who of ‘classifications.’ in terms with may be aside been set conviction has his first may a shorter convicted, receive acquitted. If may may sentence, or he sentence, receive the same originally longer im- sentenc the one than receive depend upon particular posed. The result peculiar to each indi- combination of infinite variables simply has said that State It cannot be vidual trial. successfully invidiously seek those who ‘classified’ invidiously any has trials, more than that the State not prisoners are those whose convictions ‘classified’ group by denying members of set aside problem opportunity acquitted. To fit the to equal protection is a task this case into an framework rationally accomplished. too Proscrustean to be jeopardy hold, therefore, that neither the double “We provision Equal imposes nor the Protection Clause an to a absolute bar more severe sentence recon- viction.” respect petitioner’s

With to the insistence that greater sentence in his retrial was punish seeking obtaining him for a new it only necessary point jury, out that in both trials judge supra, pun and not the as in assessed the ishment; by and that there is no or averment insistence petitioner any knowledge that the retrial had any way having granted or was in influenced been *5 behest a new trial at his conviction. practically Indeed, is it second inconceivable that the knowledge had such or was so motivated. judgment The trial court affirmed. prior case

This was heard and submitted to the Court Chapter to enactment of 330 of the Public Acts increasing membership of the Court.

WALKER, J., P. concurs. Judge (dissenting).

GALBREATH, respectfully

I must dissent. majority opinion controlling cites the case on the question punishment of whether increased on a subse- constitutionally quent ap- inflicted, but has parently plain holding misconstrued, it, as I see of the Supreme United States Court in North Carolina v.

Pearce, 23 L.Ed.2d 656 (June, 1969). approving imposition

Instead of of a more severe punishment following a successful attack the first on affirmatively conviction Pearce declares that unless there appears justification in the record a reason for the penalty, increased it must be considered unconstitutional. language Following majority cited from merely accepted principle which reiterates punishment increased does not in itself jeopardy, amount Justice Stewart, double Potter speaking remarkably (only for a united court two dis- goes part) explain sents then on to such how an greatly penalty enhanced without ex- Not is unconstitutional. planation here as encountered jeopardy against proscription but double because placing or risk an intolerable burden such because unjust seeking conviction robs person overturn an process: him of due *6 flagrant hardly be a that it would can doubted

“It Amendment for a state of the Fourteenth violation practice impos- an of trial court to follow announced every ing sentence reconvicted defen- a heavier explicit purpose punishing of dant having getting origi- for his succeeded in Where, set aside. as in each of nal conviction us, the conviction set cases before has been imposition error, of a aside because constitutional punishment, ‘penalizing of such a those who to choose rights, patently ‘would be exercise’ constitutional un- Jackson, v. constitutional.’ United States 390 U.S. 570, 581, 1209, 1216, 88 S.Ct. 20 L.Ed.2d 138. And very threat inherent in the existence of such a punitive policy respect would, with to those still in prison, serve to ‘chill the exercise of basic constitu- rights.’ Id., 582, at S.Ct., tional 88 at 1216. also See California, 609, 1229, Griffin v. 380 U.S. 85 S.Ct. 14 Avery, 106; L.Ed.2d cf. Johnson v. 483, 393 U.S. 89 747, S.Ct. 21 L.Ed.2d But 718. even if the first con- has been set error, viction aside for nonconstitutional penalty upon the defendant for having successfully pursued statutory right appeal remedy or collateral would be no less a violation of process due of law. ‘A sentence, with enhanced punishment, based reason, such a would be a flagrant rights violation of the of the defendant.’

247 672, A 106 court States, F. 679. Nichols v. United * * * price appeal. right put a on an A is to ‘without right appeal must be free defendant’s exercise of a * * * great to [I]t unfair use the unfettered. power given to to court determine sentence to place making a defendant in the dilemma of an unfree choice.’ v. Commissioner of Internal Worcester Revenue, Cir., 713, 1 370 F.2d 718. See Short v. U.S.App.D.C. States, 165, 550, United 120 344 F.2d 552. ‘This Court has never held that the are States required appellate review, establish avenues but that, established, it is now fundamental once these kept avenues must be free of unreasoned distinctions only impede open equal that can access Illinois, 12, 585, courts. Griffin 351 v. U.S. Douglas 891; California, 353, L.Ed. v. 811; Brown, S.Ct. 9 L.Ed.2d Lane v. Draper 892; S.Ct. L.Ed.2d

Washington, U.S. S.Ct. 9 L.Ed.2d Yeager, 899.’ Rinaldi v. 310-311, 1497, 1500-1501, S.Ct. 16 L.Ed.2d 577. process requires law, then, that

“Due vindictiveness against having successfully a defendant for attacked play part his first conviction must no in the sentence a receives after new trial. since And the fear of may unconstitutionally such vindictiveness deter a de- right appeal collaterally exercise of the fendant’s or process requires conviction, attack his due first also apprehension be that a freed of such a retaliatory part sentencing motivation on the judge. order to assure the

“In absence of such motivation, a imposes judge a a that whenever

we have concluded a new upon after a defendant more severe sentence affirmatively doing so must for his the reasons objective appear. must be based reasons Those concerning on conduct identifiable information occurring part the time of of the defendant sentencing data original proceeding. And the factual be sentence is based must the increased which part record, so that the constitutional made fully legitimacy be re- of the increased sentence supra. appeal.” Carolina on North viewed appears reason in this case for No only suggested penalty in the and the reason harsher petitioner is that of briefs before this Court being exercising right punished a was trial. abundantly part to me that of the sen-

It is clear beyond twenty this tence case over years first It matters not that the sentence fixed void. judge jury judge. fixed a rather than approve pronounce judgment had to the sentence and jury it. on A should not allowed to violate the con- any this, stitution more than a court. In I must further disagree my opinion majority in the with brethren who practically jury said “it is inconceivable that the second (of knowledge” had such conviction for child). raping completely, practically, me, it is To not Maury County in rural inconceivable that im- paneled some two weeks after the first few *8 setting (the days its aside of result first trial April 1948) April 6, 1948; the second did was not proceeding! prior might That know of there exist a strong part members the second resentment on trifling justice jury that the defendant with severely trying punished audacity should be for his escape just strong probability deserts too to dis- lightly. Supreme miss If the United States Court does not proper judge triple believe it for a to double or man’s punishment showing without some affirmative facts during justify not known the first increase, such I agree power cannot that such awesome of vindictiveness laymen. should be entrusted to prisoner paid has the debt constitutional-

ly and should be released.