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Foster and resentencing: More time?

We're still getting Foster remands, and even when that's run its course, courts will still be getting cases sent back for resentencing, and so the question emerges:  if the case is remanded for resentencing, can the trial court give the defendant more time?

That was the issue last week in State v. Baker.  Baker had gotten a three-year sentence for escape in 2005, but the case came back because of Foster, whereupon the trial court sent him packing again, this time for a four-year stretch.  The 3rd District affirmed.

Their treatment of the issue, and how it's governed by both state and Federal cases, is troublesome.  After all, the issue is a constitutional one:  back in 1969, the Supreme Court held in North Carolina v. Pearce that due process barred a trial court's imposition of a harsher sentence on remand unless it could affirmatively demonstrate that objective information showed the defendant's conduct after the original sentence merited a stiffer one. 

The 3rd District relied heavily upon a case they'd had just a few months back on the same question, where a judge gave a defendant 15 months in a resentence on a drug case, after having given him only 12 the first time around.  In the earlier case, they'd reversed, finding that the judge hadn't indicated any basis for the increased sentence.  In Baker, the judge during the second sentencing found that the defendant "lacked remorse" and that that "the public is at risk from his anti-social actions and needs protection."  As far as the appellate court was concerned, that was enough of a finding to justify the higher sentence.

That seems to be a serious misreading of the case law.  The court took note that the Supreme Court had refined Pearce in Wasman v. US and Alabama v. Smith:

In Wasman, the Supreme Court clarified its Pearce holding by making it clear that enhanced sentences on remand were not prohibited unless the enhancement was motivated by actual vindictiveness against the constitutionally guaranteed rights. The Supreme Court further clarified the Pearce decision in Alabama v. Smith, explaining that, unless there was a "reasonable likelihood" that the increased sentence was the product of actual vindictiveness, the burden was on the defendant to show actual vindictiveness.

That's not quite right.  The court didn't "make it clear" in Wasman that "actual vindictiveness against the constitutionally guaranteed rights" was required; that portion of the opinion found support of only four judges.  The judgment was unanimous, though, because the reason for the higher sentence was that the defendant, in the time between the first and second sentences, had been convicted of another offense, and rest of the judges agreed that if any conduct after the first sentence warranted a stiffer sentence on remand, it was the defendant going out and committing another crime.

Alabama v. Smith is a little more favorable to the court's decision in Baker because there, as in Baker, there was no "subsequent conduct":  the higher sentence was based upon factors that existed at the time the original sentence was meted out.  There was one huge difference, though:  in Smith, the first sentence was based on a guilty plea; after reversal, the defendant went to trial and was convicted.  The Supreme Court concluded, quite obviously, that the trial court had much more information about the crime after the trial than it did on a plea (and in fact, that's exactly what the trial court put in the record).

In Baker, though, there's nothing to indicate that the trial court had any more information about the defendant's "remorse" or "anti-social tendencies" the second time it sentenced him than it did on the first.  The higher sentence, then, wasn't based on subsequent conduct by the defendant, or even on new information about the defendant's prior conduct.  It was simply based upon a re-evaluation by the trial judge of the same information it had at the time of the first sentencing.  Given the highly subjective nature of sentencing criteria, allowing a judge to recast the same information in a new way on resentencing pretty much renders a nullity Pearce's presumption that a greater sentence on remand is vindictive.

There's another problem with Foster remands, though.  Before Foster was decided, a judge had to make certain findings before imposing more-than-minimum, maximum, or consecutive sentences.  Now she doesn't have to.  Does that mean a judge can say on a Foster remand, "The first time I sentenced you, I was pretty much required to give you the minimum sentence because you hadn't been to prison before.  I am no longer required to give you the minimum sentence, so I'm not going to"?  Keep in mind that Pearce doesn't flatly prohibit a longer second sentence, it simply creates a presumption that a longer sentence is based on vindictiveness.  That presumption can be overcome, and a change in the law of the type that Foster created could well overcome it. 

But, as I said, that only applies to more-than-minimum, maximum, and consecutive sentence.  If both sentences fall within the middle range, I think a judge has got to go a good bit farther to justify a higher sentence the second time around than just saying, "You know, reading this presentence report again, I realize you're more of a bad guy than I thought."

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