Judicial Vindictiveness in the
Resentencing of Criminal Defendants:
Massachusetts Expands the Pearce
Principle as a Matter of Common Law
I. INTRODUCTION
When a criminal defendant succeeds m appealing a conviction and
subsequently is reconvicted by the trial court, this defendant might
expect that the duration of the second sentence would not exceed the
first. Nevertheless, there are times when a court might not satisfy this
expectation. The fact that courts impose greater sentences after appeal is
a reality for those defendants who challenge their convictions.
Courts can justify greater sentences for many reasons. In determiming an appropriate sentence, a sentencing judge may wish to consider
the use of prior convictions unknown to the first trial judge,' convictions the defendant obtained after the initial conviction but before sentencmg after retrial,2 and the defendant's criminal conduct which was
first made known to the court during the second trial.3
Judicial vindictiveness on the part of the sentencing judge, however,
may play no part in the resentencmg process.4 The State may not act
in a manner which penalizes a person's reliance on legal rights by
1. See Commonwealth v. Hyatt, 419 Mass. 815, 824, 647 N.E.2d 1168, 1174
(1995).
2. See Wasman v. United States, 468 U.S. 559, 562 (1984).
3. See Texas v. McCullough, 475 U.S. 134, 140 (1986). A jury convicted Sanford McCullough of murder and sentenced hun to twenty years imprisonment. See id.
at 134. McCullough made a post-trial motion for a new trial which the lower court
granted, on the grounds of prosecutorial misconduct See id After a second conviction, McCullough exercised his right under state law to be sentenced by the trial
judge instead of the jury. See id at 134-35 (citing TEX. CODE CRIM. P., art. 37.07
(1981)). Based on evidence first produced at the second trial, the judge unposed a
sentence of 50 years imprisonment. See id. at 135. Two witnesses who did not testify
at the first trial testified that it was McCullough, and not his accomplices, who
slashed the neck of the victim. See id.
4. See North Carolina v. Pearce, 395 U.S. 711, 725 (1969).
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imposing a greater sentence with the explicit goal of punishing the
successful exercise of the right to appeal.5 If a defendant were to fear
retaliation for successfully challenging his or her first conviction, it
could "chill the exercise of basic constitutional rights" such as the right
to appeal.6 Due process requires "that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing
judge."7
In an attempt to prevent apprehension of retaliatory motives, the
Supreme Court of the United States, in North Carolina v. Pearce, held
that
whenever a judge imposes a more severe sentence upon a defendant
after a new trial, the reasons for . . . doing so must affirmatively appear ... [a]nd the factual data upon which the increased sentence is
based must be made part of the record so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal
If the judge does not justify the increased sentence "based upon objective information concerning the identifiable conduct on the part of the
defendant .. .[,]" this error creates the presumption that vindictiveness
motivated the increased sentence.9 This doctrine is known as the
Pearce principle.
The Supreme Court has limited this broad presumption in many
respects. Most notably, in Texas v. McCullough0 the Supreme Court
held that the presumption of vindictiveness is inapplicable when a different sentencing authority imposes the second sentence." In this situa-
5. See id. at 724; see also Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978).
"A new sentence, with enhanced punishment, based upon such a reason, would be a
flagrant violation of the rights of the defendant" Pearce, 395 U.S. at 724 (citing
Nichols v. United States, 106 F.2d 672, 679 (3d Cir. 1901)).
6. See Pearce, 395 U.S. at 725 (citing United States v. Jackson, 390 U.S. 570,
582 (1968)).
7. Id.; see also Chaffim v. Stynchcombe, 412 U.S. 17, 24-25 (1973). Defendants
"actually subjected to harsher resentencing as a consequence of [improper] motivation
would be most directly injured, but the wrong would extend as well to those who
elect not to exercise their rights to appeal because of a legitimate fear of retaliation."
Chaffin, 417 U.S. at 24-25.
8. Pearce, 395 U.S. at 726.
9. Id.
10. 475 U.S. 134 (1986).
11. See id. at 140. The jury imposed the first sentence, and the judge imposed
the second. See id. The Court noted that "[w]e held in Chaffin v. Stynchcombe ...
that the presumption derives from the judge's 'personal stake in the prior conviction,' . . . a statement clearly at odds with reading Pearce to govern this issue." Id.
at 140 n.3.
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JUDICIAL VINDICTIVENESS
tion there is no reasonable likelihood that actual vindictiveness exists
because second sentencing judges do not have a personal stake in the
first conviction and are not asked to redo what they thought they had
already done correctly. 2
Despite the lack of a constitutionally mandated presumption of vindictiveness, and even though the record did not support the existence of
any actual vindictiveness, the Supreme Judicial Court of Massachusetts,
in Commonwealth v. Hyatt, 3 set aside an increased sentence given by
a second judge after the Defendant successfully attacked his first conviction.' 4 The court adopted as a common law principle:
a requirement that, when a defendant is again convicted of a crime or
crimes, the second sentencing judge may impose a harsher sentence or
sentences only if the judge's reason or reasons for doing so appear on
the record and are based on information that was not before the first
sentencing judge. 5
This Comment will analyze Massachusetts' decision to expand the
Pearce principle into its common law in lieu of the fact that the United
States Supreme Court currently is limiting its scope. Since its underlying rationale for adopting the presumption is misguided, this Comment
will conclude that the Massachusetts Supreme Judicial Court erred.
Moreover, the need for sentencing discretion outweighs the benefits of
adopting a presumption of judicial vindictiveness when a different judge
imposes the second sentence. Part II of this Comment traces the development of the Pearce presumption of judicial vindictiveness. It is important to understand the development of the law, and the policies underlying it, to understand the shortcomings of the Hyatt decision. Part
I discusses the facts and judgment of the Massachusetts Supreme
Judicial Court in Hyatt. Finally, Part IV thoroughly evaluates the
court's rationale.
II. BACKGROUND
A. The Birth of the Doctrine: North Carolinav. Pearce
A North Carolina trial court convicted Pearce of assault with intent
to commit rape and later sentenced him to twelve to fifteen years in
prison. 7 Several years later, the Supreme Court of North Carolina re-
12.
13.
14.
15.
16.
17.
See Colten v. Kentucky, 407 U.S. 104, 117 (1972).
419 Mass. 815, 647 N.E.2d 1168 (1995).
See id. at 822, 647 N.E.2d at 1173.
Id. at 823, 647 N.E.2d at 1174.
395 U.S. 711 (1969).
See id. at 713.
CRIMINAL AND CIVIL CONFINEMENT
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versed his conviction because the trial court errantly admitted into evidence an unconstitutional, involuntary confession.' Pearce was retried
and subsequently reconvicted.' The trial judge sentenced Pearce to
serve a term of eight years.2" When the court "added the second sentence to the time Pearce had already spent in prison, [it] amounted to a
longer sentence than that which the first court originally imposed."'
The Supreme Court rejected Pearce's argument that the double jeopardy provision of the Fifth Amendment,22 or the Equal Protection
Clause of the Fourteenth Amendment,23 prohibited the imposition of a
more severe sentence upon reconviction." Accordingly, a trial judge
may impose a greater sentence on a defendant after reconvicting the
defendant for the same crime following a successful appeal.2" The
Court held, however, that the Due Process Clause of the Fourteenth
Amendment prohibits
the imposition of a penalty upon the defendant for having successfully
pursued a statutory right of appeal or collateral remedy ....
It can
hardly be doubted that it would be a flagrant violation of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant
for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside.2"
The Court stated that the "very threat inherent in the existence of
such a punitive policy would, with respect to those still in prison, serve
18. See id.
19. See id.
20. See id.
21. Id. If Pearce received all allowances of time for good behavior, his approximate date of release from the first sentence would have been November 13, 1969.
See id. at 713 n.l. Assuming the same allowances for the second sentence, his approximate date of release would have been October 10, 1972. See id. In determining
whether a multiple count sentence was increased, the relevant inquiry analyzes the
length of the new sentence as a whole, and not an abstract numerical count-by-count
comparison of the sentences imposed at each trial. See United States v. Markus, 603
F.2d 409, 413 (2d Cir. 1979).
22. U.S. CONST. amend. V. "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . ." Id.
23. U.S. CONST. amend. XIV, § 1. "No State shall . . . deny to any person
within its jurisdiction the equal protection of the laws." Id. The argument follows that
only defendants successful in appealing their convictions can be subjected to an
increased sentence. See Pearce, 395 U.S. at 723. The Court summarily rejected this
claim. See id.
24. See Pearce, 395 U.S. at 723.
25. See id.
26. Id. at 723-24.
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JUDICIAL VINDICTIVENESS
to 'chill the exercise of basic constitutional rights.' 2 7 All defendants
must be free to exercise their right to appeal.28 Accordingly, due process requires two things: that retaliatory vindictiveness play no part in
the sentence a defendant receives upon retrial; and that a defendant be
free from such reasonable apprehension.2 9 This requirement led to what
is now known as the Pearce presumption of judicial vindictiveness?
The Pearce presumption operates regardless of whether there exists
actual vindictiveness on the part of the sentencing judge because subjective vindictiveness would be unfairly difficult to prove.3' The policy
underlying the presumption is to assure that vindictive motives play no
part in the resentencing procedure.32 Thus, the Court held that
[i]n order to assure the absence of such a motivation, we have concluded 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. 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. And the factual
data upon which the increased sentence is based must be made part of
the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.33
The decision did not create a complete bar to increased sentences,
but rather, it enumerated a two-part test.34 The test did not require the
defendant to produce any proof of actual, subjective vindictiveness.35
The standard merely required that the court, when it imposed an increased sentence, properly justify its decision to rebut the presumption
of vindictiveness. 6 If the judge did not successfully carry his or her
burden, the sentence would not stand due to the presumption that vindictiveness motivated the increase.37
27. Id. (citing United States v. Jackson, 390 U.S. 570, 582 (1968)).
28. See id. at 724.
29. See id at 725.
30. See Wasman v. United States, 468 U.S. 559, 574 (1984) (Powell, J., concurring).
31. See Pearce, 395 U.S. at 723-24.
32. See id.; see also supra note 5 and accompanying text.
33. Pearce, 395 U.S. at 726.
34. See id.
35. See id The Supreme Court noted that proof of the existence of retaliatory
motives could be difficult. See id. at 725.
36. See United States v. Goodwin, 457 U.S. 368, 374 (1982).
37. See id.
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B. The Rule of North Carolinav. Pearce Is Narrowed to Apply Only
When a Reasonable Likelihood of Vindictiveness Exists
1. The Presumption Does Not Apply in a Trial De Novo3 8
The first vindictiveness case heard by the Supreme Court after
Pearce was Colten v. Kentucky. 9 The State charged Colten with disorderly conduct, and the court fined him ten dollars.4" Like many
states, Kentucky employs a two-tier trial system in which lower level
trial courts may hear less serious criminal cases. 4 Upon conviction,
Colten exercised his right to a trial de novo in a court of general criminal jurisdiction.42 This court also found him guilty, and imposed an increased fine of fifty dollars.43
Colten argued that the Pearce rule controlled the case because the
second court imposed a greater sentence following a successful appeal.44 Colten compared Pearce's retrial with his trial de novo and
contended that there was no meaningful difference because both cases involved increased sentences following a second conviction.4" The Supreme Court, however, rejected this argument.46
The Court found nothing inherent in the Kentucky two-tier trial de
novo system that would support the underlying principle of Pearce deterring a defendant from exercising his or her right to appeal.47 There
existed no hazard of penalty for seeking a new trial.48 Moreover, because the right to a new trial was absolute, the fear of vindictiveness
would not deter defendants convicted in Kentucky's inferior courts from
38. A trial de novo is "[a] new trial or retrial had in which the whole case is
retried as if no trial whatever had been had in the first instance." BLACK'S LAW
DICTIONARY 1349 (6th ed. 1990).
39. 407 U.S. 104 (1972).
40. See id. at 118.
41. See id. at 112.
42. See id. Every defendant convicted in this inferior court has the absolute right
to a new trial. See id.at 113. This process operates even if no error is alleged, and
the new proceeding commences as if the first trial never took place. See id.The
judge and jury in the de novo trial view the case in exactly the same manner as if
commenced there in the first instance. See id.
43. See id. at 118.
44. See id. at 115.
45. See Colten, 407 U.S. at 115.
46. Id. at 118. The Massachusetts Supreme Judicial Court anticipated this holding
in an earlier case. See Mann v. Commonwealth, 359 Mass. 661, 666, 371 N.E.2d
331, 334 (1971).
47. See Colten, 407 U.S. at 116; see also supra note 33 and accompanying text.
48. See Colten, 407 U.S. at 116.
JUDICIAL VINDICTIVENESS
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seeking a new trial.49
The Court offered the following rationale for its decision. First, the
de novo court that tried, convicted, and sentenced Colten was not the
same court with which Colten was dissatisfied." Second, the de novo
court was not asked to redo what it thought it already had done correctly. s Third, the de novo court was not asked to find any error on
the part of the lower court because its charge was to conduct the trial
as if the case began there in the first instance. 2 Finally, the Kentucky
court of general criminal jurisdiction is not likely to harbor vindictive
tendencies because, as stated by the Kentucky Court of Appeals in this
case, "the inferior courts are not designed or equipped to conduct errorfree trials, or to insure full recognition of constitutional freedoms. They
are courts of convenience, to provide speedy and inexpensive means of
disposition of charges of minor offenses." 3 Accordingly, Colten's sentence remained intact.5 4
2. The Presumption Does Not Apply When a Jury Imposes the
Second Sentence
Just one year after Colten, the Supreme Court further limited the
Pearce presumption of vindictiveness in Chaffin v. Stynchcombe." A
jury convicted Chaffin of robbery and sentenced him to fifteen years
imprisonment.56 After exhausting all state court appeals, the United
States District Court for the Northern District of Georgia granted a writ
of habeas corpus and remanded the case for a new trial.5 7 At his second trial, the jury once again found him guilty, but this time sentenced
him to life imprisonment.5 8 The Court held that the presumption of
vindictiveness is inapplicable when a jury resentences the defendant
49.
50.
51.
52.
53.
See
See
See
See
Id.
id.
id.
id.
id. at 116.
at 117 (citing Colten v. Commonwealth,
467 S.W.2d 374, 379 (Ky.
1971)).
54. See Colten, 407 U.S. at 118. The Court highlighted the fact that Kentucky
permits fines up to $500 and six months in jail for disorderly conduct. See id. Considering that Colten's enhanced sentence only imposed a fine of $50, it is not plausible to conclude that the de novo court did anything but treat this case in accordance
with the law. See id.
55. 412 U.S. 17 (1973).
56. See id. at 18.
57. See id at 19.
58. See id. at 18-19.
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upon conviction following a successful appeal.59
The Court reasoned that the first prerequisite of a retaliatory penalty
is knowledge of the first sentence." In a proper trial, the jury will not
be aware of the outcome of the first trial.6 At most, the jury will
have knowledge of its existence, but should not know whether that trial
was on the same charge or whether it resulted in a conviction or a
mistrial.62 Furthermore, a jury which did not hear the first case delivers the second sentence. Although the first case was conducted in a
manner sufficiently unacceptable to warrant a retrial, the possibility of
vindictiveness was "de minimus" because the unacceptable work was
not the work of the second jury.63
"[T]he jury, unlike [a] judge reversed [on appeal, does not have a]
personal stake in the prior conviction nor motivation to engage in selfvindication."64 The jury is also less likely to mete out greater sentences in an effort to discourage meritless appeals.65 The inapplicability of
these institutional interests, taken together with the substantive reasons
for why a resentencing jury is not likely to impose vindictive sentences,
supports the proposition that unless the second sentencing authority has
knowledge of the prior sentence, and unless there is more than a de
minimus chance of vindictiveness, the prophylactic rule of Pearce
should not apply.66
3. Prosecutorial Misconduct and the Realistic Likelihood of
Vindictiveness
In Blackledge v. Perry,67 the Supreme Court extended the Pearce
presumption of vindictiveness to prosecutorial vindictiveness.68 The
Court premised this decision upon the notion that a prosecutor may
have a considerable stake in discouraging convicted misdemeanants
from appealing to obtain a trial de novo.69 In Perry, the district court
59. See id. at 27.
60. See id. at 26.
61. See Chaffin, 412 U.S. at 26-27.
62. See id. at 26-27.
63. See id. at 26.
64. Id. at 27.
65. See id.
66. See id. at 26.
67. 417 U.S. 21 (1974).
68. See id. at 27.
69. See id. The Court stated that the same considerations that apply to judicial
vindictiveness apply here. See id. "A person convicted of an offense is entitled to
pursue his statutory right to a trial de novo, without apprehension that the State will
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JUDICIAL VINDICTIVENESS
convicted the Defendant of misdemeanor assault with a deadly weapon
for assaulting a fellow prison inmate in a North Carolina penitentiary."0 Perry then filed a notice of appeal with the superior court for a
trial de novo.7" After Perry filed the notice of appeal, but before appearing before the superior court, the prosecutor obtained an indictment
charging Perry with felony charges covering the same conduct for
which the district court convicted him.72
Citing increased prosecutorial expenditures to finalize a conviction,
and the possibility that the defendant might actually be acquitted as
underlying reasons for potential misconduct, the Supreme Court recognized that prosecutors could discourage the de novo appeals by 'upping the ante' through a felony indictment whenever a convicted misde'
meanant pursues his statutory appellate remedy."73
If the prosecutor
were able to engage in this course of conduct, then "only the most
'
hardy defendants will brave the hazards of a de novo trial."74
The
Court held that the felony indictment which the prosecutor obtained
after Perry filed notice of appeal, but before trial, was impermissible
under the Fourteenth Amendment. The Court stated that "the opportunities for vindictiveness in this situation are such as to impel the conclusion that due process of law requires a rule analogous to that of the
76
[Pearce] case."
retaliate by substituting a more serious charge for the original one, thus subjecting
him to a significantly increased potential period of incarceration." Id. at 28. "This
Court has never held that the States are constitutionally required to establish avenues
of appellate review of criminal convictions. Nonetheless, 'it is now fundamental that,
once established, these avenues must be kept free of unreasoned distinctions that can
only impede open and equal access to the courts."' Id at 25 n.4; see also Chaffin,
412 U.S. at 24 n.11; North Carolina v. Pearce, 395 U.S. 711, 724-25 (1969); Rinaldi
v. Yeager, 384 U.S. 305, 310 (1966); Lane v. Brown, 372 U.S. 477 (1963); Draper
v. Washington, 372 U.S. 487 (1963); Douglas v. Califomia, 372 U.S. 353
(1963)Griffin v. Illinois, 351 U.S. 12 (1956).
70. See Perry, 417 U.S. at 22.
71. See id. North Carolina law provided that a person convicted in the District
Court has an absolute right to a trial de novo in the Superior Court. See N.C. GEN.
STAT. §§ 7A-290, 15-177.1 (1969); see also supra note 42 and accompanying text.
72. See Perry, 417 U.S. at 23.
73. Id. at 27-28.
74. Id. at 28.
75. See id.
76. Id. at 27. This case is distinguishable from Colten v. Kentucky. In Colten, the
Supreme Court refused to find a presumption of vindictiveness because the increased
sentence was imposed after a "completely fresh determination of guilt or innocence'"
Colten v. Kentucky, 407 U.S. 104, 117 (1972). In Perry, the Supreme Court did find
a presumption of vindictiveness warranted in a trial de novo context where "the
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Although the record did not contain any evidence supporting actual
prosecutorial misconduct, the Supreme Court explained that it did not
found the Pearce rationale upon the proposition that actual retaliatory
motivation must in fact exist, but rather, that the fear of such vindictiveness may unconstitutionally deter a defendant from exercising his or
her right to appeal. 7 Accordingly, a defendant must be freed from apprehension of such retaliatory motivation.78
The Supreme Court continued to narrow Pearce's prophylactic rule
in United States v. Goodwin 9 where it once again faced the issue of
prosecutorial misconduct." Goodwin, the Defendant, requested a trial
by jury on pending misdemeanor charges but, before trial, the prosecutor succeeded in indicting and convicting the Defendant on a felony
charge.8 ' The Supreme Court rejected the notion that a prosecutor
would respond to a defendant's pretrial demand for a jury trial by
bringing charges not in the public interest, but solely as a penalty.82
The Court stated that, prior to trial, the prosecutor should remain
free to exercise the broad discretion entrusted to him or her in determining what charges to file. 3 The prosecutor's initial course of conduct should not freeze his or her future conduct because those charges
may not accurately reflect the extent to which an individual is legitimately subject to punishment. 4 It is so unlikely that the prosecutor
behaved improperly "that a presumption of vindictiveness certainly is
not warranted." 5
4. Further Limits to Pearce: Wasman v. United States 6 and
Intervening Convictions as Justification for Increased Sentences
A trial court convicted Wasman of knowingly and willfully making
false statements in a passport application. At his sentencing hearing,
prosecutor clearly has a considerable stake in discouraging convicted misdemeanant
from appealing." Perry, 417 U.S. at 27.
77. See Perry, 417 U.S. at 27 (citing North Carolina v. Pearce, 395 U.S. 711,
725 (1969)).
78. See id.
79. 457 U.S. 368 (1982).
80. See id. at 384.
81. See id. at 369.
82. See id.
83. See id. at 381.
84. See id.; see also Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978).
85. Goodwin, 457 U.S. at 384.
86. 468 U.S. 559 (1984).
87. See id. at 560. The act violated 18 U.S.C. § 1542 (1984). See id.
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the government advised the court that charges were pending for an
unrelated offense, and Wasman's attorney argued that it would be inappropriate for the court to consider that charge for sentencing purposes. 8 The district court judge replied that he would not consider the
pending charge and explained that he always considered prior convictions when sentencing a defendant but did not consider pending charges. 9 The judge proceeded to sentence Wasman to two years imprisonment, all but six months of which were suspended, and three years of
probation." Thereafter, Wasman entered into negotiations with the
government regarding the pending charge and pleaded nolo contendere
to a single lesser charge. 91 He was sentenced to two years probation.92
The Court of Appeals for the Fifth Circuit reversed the first conviction and remanded for a new trial.93 Wasman was reconvicted by the
same judge who presided over the first trial.94 This time, the judge
was not so lenient and imposed a sentence of two years imprisonment,
none of which was suspended. 5 The judge explained that he was imposing the greater sentence because of the intervening conviction for
possession of counterfeit certificates of deposit.9" Wasman appealed on
the grounds that the conduct underlying the conviction occurred before
the original sentencing on the passport conviction. 97 He further argued
that under Pearce it is impermissible to receive a greater sentence based
88. See id. Wasman was indicted on four counts of mail fraud in violation of 18
U.S.C. § 1341 (1984). See id.
89. See id at 559.
90. See id.
91. See id. The government dismissed the mail fraud indictment and substituted a
one-count information charging Wasman with possession of counterfeit certificates of
deposit in violation of 18 U.S.C. § 480 (1984). See id.
92. See Wasman, 468 U.S. at 562.
93. See id (citing Wasman v. United States, 641 F.2d 326 (5th Cir. 1981)).
94. See id.
95. See id.
96. See id. The trial judge went on to explain:
[W]hen I imposed sentence the first time, the only conviction on
[petitioner's] record in this Court's eyes, this Court's consideration, was fail-
ure to file income tax returns, nothing else. I did not consider then and I
don't in other cases either, pending matters because that would result in a
pyramiding of sentences. At this time, he comes before me with two convic-
tions. Last time, he came before me with one conviction.
Id.
97. See id.
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upon information not before the first sentencing judge.98
The Supreme Court affirmed the sentence, holding that, upon reconviction after a retrial following a successful appeal, "a [second] sentencing authority may justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original
sentencing proceedings."9 9 "[A]ny language in Pearce suggesting that
an intervening conviction for an offense committed prior to the original
sentencing may not be considered upon sentencing after retrial, is inconsistent with the . . . opinion as a whole."'00 The Court stated that
considering a conviction obtained between the time of the initial sentencing and sentencing after retrial "is manifestly legitimate, [and] amply rebuts any presumption of vindictiveness.''
5. The "Reasonable Likelihood" Standard and Increased Sentences
Following a Conviction After the Reversal of a Guilty Plea
In Alabama v. Smith, °2 the Supreme Court held that a presumption of vindictiveness is not warranted when an increased sentence follows a trial and the Court based the initial conviction on a guilty
plea. 3 James Lewis Smith pleaded guilty to charges of burglary and
rape after reaching an agreement with the prosecutor to dismiss a sodomy charge.1'0 The Court then sentenced the Defendant to concurrent
terms of thirty years imprisonment on each conviction.' 5 He later succeeded in having the guilty plea withdrawn,0 6 but the prosecutor successfully reinstated the sodomy charge.'0 7 The resulting trial was reassigned to the same judge who accepted the initial guilty plea. 8
After the jury convicted Smith of all three counts, the judge im-
98. See Wasman, 468 U.S. at 562.
99. Id.
100. Id. at 571.
101. Id. at 570.
102. 490 U.S. 794 (1989).
103. See id. at 795.
104. See id. at 796.
105. See id.
106. See id. The Defendant made a motion to the trial court to withdraw the
guilty plea claiming he had not made the plea knowingly and voluntarily. See id. The
trial court denied the motion, but the Alabama Court of Criminal Appeals reversed,
stating that "the Defendant had not been properly informed of the penalties associated
with the crimes to which he had pleaded guilty." Id. (citing Smith v. State, 494 So.
2d (Ala. Crim. App. 1986)).
107. See id.
108. See Smith, 490 U.S. at 796.
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posed concurrent sentences of life imprisonment on the burglary and
sodomy convictions and a consecutive sentence of 150 years imprisonment for the rape conviction.0 9 The judge explained that he increased
the sentence because there was a considerable amount of evidence presented at trial of which he lacked knowledge when he accepted the
guilty plea and that evidence graphically depicted the brutal nature of
the attack and its effect on the victim."0
The Supreme Court upheld the increased sentence and rejected the
notion that the Pearce presumption of vindictiveness prohibited this
increased sentence."' Increased sentences are not the evil which
Pearce sought to avoid; rather, increased sentences that pose a "reasonable likelihood" of vindictiveness on the part of the sentencing authority should be the focus."' In the Smith case, the combination of
the judge providing specific reasons for the increased sentence, coupled
with the greater appreciation the judge had concerning the nature and
extent of the crimes charged, provided enough justification to hold that
the presumption of vindictiveness should not apply."' The same factors also demonstrated that the judge did not impose a vindictive sentence."'
The lesson learned is that increased sentences are acceptable and do
not necessarily violate the Due Process Clause; it is only increased sentences that pose a reasonable likelihood of vindictiveness that violate a
defendant's due process rights."5 The Pearce presumption is an inflexible presumption and it "may operate in the absence of any proof of
an improper motive and thus may block a legitimate response to criminal conduct.""' 6 When the presumption applies, the sentencing authority or the prosecutor must rebut the presumption that an increased sentence was motivated by vindictiveness; and when the presumption does
not apply, the defendant must affirmatively prove actual vindictiveness." 7 In each of the cases discussed, there was an opportunity for
109. See id
110. See id at 796-97. The trial gave the court the opportunity to observe the
defendant's "'mental outlook on [the offenses] and [his] position during the trial' . . .
[and concluded that] it was 'proper to increase the sentence beyond that which was
given to [him] on the plea bargain."' Id. at 797 (citation omitted).
111. See id. at 795.
112. Id. at 799 (quoting United States v. Goodwin 457 U.S. 368, 373 (1982)).
113. See id. at 801-02.
114. See Smith, 490 U.S. at 802.
115. See id. at 799.
116. Goodwin, 457 U.S. at 373.
117. See Wasman v. United States, 468 U.S. 559, 569 (1984).
542
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 23:529
vindictiveness. These cases demonstrate, however, "that a mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule.""' 8
III.
COMMONWEALTH v. HYA77'19
A. The Facts
A jury convicted Dwayne Hyatt of aggravated rape and armed robbery in March of 1988. 20' The trial judge sentenced him "to concurrent terms of from twenty-five to forty years.'' In 1991, the Supreme Judicial Court of Massachusetts reversed both convictions and
22
remanded the case for a new trial.
On retrial, Hyatt was again found guilty of both crimes; a different
trial judge, however, presided over the retrial.2 2 After asking the Commonwealth for its sentencing recommendation,' 24 and hearing the vic-
118. Goodwin, 457 U.S. at 384.
119. 419 Mass. 815, 647 N.E.2d 1168 (1995).
120. See id. at 816, 647 N.E.2d at 1170.
121. Id.
122. See id. (citing Commonwealth v. Hyatt, 409 Mass. 689, 563 N.E.2d 1148
(1991)). In his first appeal, Hyatt argued for a new trial alleging "he was erroneously
denied a peremptory challenge of a juror; that the prosecutor was allowed an improper challenge; and that certain expert testimony was erroneously admitted in evidence."
Hyatt, 409 Mass. at 689, 568 N.E.2d at 1148. The convictions were affirned on
appeal. See Commonwealth v. Hyatt, 29 Mass. App. Ct. 140, 557 N.E.2d 1172
(1990). The Supreme Judicial Court reversed the convictions stating "[tihe erroneous
denial of the right to exercise a proper peremptory challenge is reversible error without a showing of prejudice." Hyatt, 409 Mass. at 692, 568 N.E.2d at 1150 (citing
Commonwealth v. Wood, 389 Mass. 552, 564, 451 N.E.2d 714, 721 (1983)).
123. See Hyatt, 419 Mass. at 816, 647 N.E.2d at 1170.
124. See id.at 819, 647 N.E.2d at 1171. The prosecutor recommended consecutive
terms instead of concurrent terms. See id. "This recommendation was based in part
on the brutality of the crime, the Defendant's prior criminal record, which included
three other convictions of assaults on women, and the lasting impact of this incident
on the victim and her family." Id. The prosecutor also based the change in sentences
on the defendant's misconduct while in prison for which he received disciplinary action. See id., 647 N.E.2d at 1171-72. The prosecutor introduced Hyatt's penal disciplinary record into the record because of her understanding of Pearce, requiring that
"higher sentences that are received after a first conviction on a retrial should be
based on objective information concerning identifiable conduct on the part of the
defendant occurring after the time of the original sentencing proceeding and should
affirmatively appear on the record." Id. at 819-20, 647 N.E.2d at 1172 (citing North
Carolina v. Pearce 395 U.S. 711, 726 (1969)). She did not address Texas v.
McCullough, however, where the Supreme Court announced that the presumption of
vindictiveness "is . . . inapplicable because different sentencers assessed the varying
JUDICIAL VINDICTIVENESS
1997]
tim and defense counsel, the judge made the following statement:
This is perhaps the most gratuitously brutal crime of its type that I
have encountered yet as a judge. I want to make a point of acknowledging a debt that society owes to [the victim] for the courage and
dignity with which she confronted testifying a second time to an experience of horror, which none of us could ever imagine. The intent of
this sentence is to ensure that if [the defendant] is ever released from
prison, he will be incapable of ever attacking a woman again. I do not
see the two crimes for which he has been convicted of to be sentenced
concurrently. I believe they are independent of one another and deserve
to be punished separately."
The judge proceeded to impose the same twenty-five to forty year
sentence for the aggravated rape charge that the first judge imposed.'26
On the conviction of armed robbery, however, he imposed a consecutive sentence of eighteen to twenty-five years imprisonment.'
B. The Judgment
The court vacated the sentence on the armed robbery conviction 2 '
because the second judge's stated reasons for the imposition of a greater sentence were "not based on any information not before the first
judge except the fact of the retrial itself. The judge referred to the
victim's courage and dignity in testifying again, but that adds nothing
of significance to the fact that there had been a retrial."' 29
The two trial judges simply took different views as to the significance of the two crimes. 3 ' The first judge considered them to be one
crime, while second considered the two crimes separate from one anoth3
er.1 '
The Supreme Judicial Court ruled that the theft of the victim's
property "was an incidental aspect of the circumstances which involved
an outrageous aggravated rape.' '3 The record did not show that the
second judge relied on any information that was not available to the
first trial judge which could rebut a presumption of vindictiveness, and
sentences." Id. at 821, 647 N.E.2d at 1172 (citing Texas v. McCullough, 475 U.S.
134, 140 (1986)).
125. Id at 820, 647 N.E.2d at 1172 (alterations in original).
126. See id. at 816, 647 N.E.2d at 1170.
127. See id.
128.
129.
130.
131.
another
132.
See id. at 824, 647 N.E.2d at 1174.
Hyatt, 419 Mass. at 822, 647 N.E.2d at 1173.
See id.
See id.The second judge stated, "I believe they are independent of one
and deserve to be punished separately." Id at 820, 647 N.E.2d at 1172.
Id.at 822, 647 N.E.2d at 1173.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 23:529
the record was absent of any indication of actual vindictiveness.'33
Therefore, the court needed to find a presumption of vindictiveness
under state law to reverse the sentence on the armed robbery conviction.'34 The court held that such a presumption did in fact exist. 5
Accordingly, the court upheld the sentence for the aggravated rape conviction while setting aside the sentence for the armed robbery conviction.3
IV. ANALYSIS
A. The Massachusetts Supreme Judicial Court and the Adoption of
the Presumption of Vindictiveness
When the court sentenced Hyatt following his second conviction, a
different judge imposed the increased sentence from the one who sentenced him following the first trial.'" In Texas v. McCullough,'38 the
Supreme Court held that, when a different sentencing authority imposes
a greater sentence, a presumption of vindictiveness is not warranted.'39
The McCullough Court recognized that the defendant can still prove
actual vindictiveness and attributed no federal due process significance40
to greater sentences imposed by a different sentencing authority.'
Therefore, Hyatt could not claim, nor did he claim, that there was "a
valid federal due process claim based on a presumption of vindictiveness."141
The Massachusetts Supreme Judicial Court took a different view
than the U.S. Supreme Court on the effects of a legitimately imposed
increased sentence following a successful appeal by an incarcerated
133. See id.
134. See id. It is apparent that this was the court's goal. The existence of the presumption of vindictiveness was necessary for the defendant's claim to be successful.
135. See Hyatt, 419 Mass. at 823, 647 N.E.2d at 1173.
136. See id. at 824, 647 N.E.2d at 1174. The court was unable to ascertain whether other unrelated convictions for crimes against women in 1987, which were known
to the second sentencing judge, were known to the first judge when he sentenced the
defendant. See id. If the first judge knew of those convictions, they would be an
improper basis for justifying the increased sentence on the armed robbery charge. See
id. The court noted that there may be other circumstances, which the Commonwealth
may properly introduce, which the judge can factor into an appropriate sentence. See
id. The court then remanded the case for resentencing. See id.
137. See id. at 819, 647 N.E.2d at 1171.
138. 475 U.S. 134 (1986).
139. See id. at 140; see also supra notes 7-9 and accompanying text.
140. See McCullough, 475 U.S. at 140.
141. Hyatt, 419 Mass. at 821, 647 N.E.2d at 1172.
JUDICIAL VINDICTIVENESS
1997]
defendant.'42 Acknowledging that the possibility of retaliatory sentencing is "slight," the Massachusetts Supreme Judicial Court still contemplated that it may have a "chilling effect" on those defendants who may
fear retaliation in response to seeking a new trial.'43 Accordingly, it
adopted, as a common law principle, a requirement that
when a defendant is again convicted of a crime or crimes, the second
sentencing judge may impose a harsher sentence or sentences only if
the judge's reason or reasons for doing so appear on the record and
are based
on information that was not before the first sentencing
44
judge.1
The Massachusetts Supreme Judicial Court adopted the principle
based on the reasoning enunciated in State v. Violette,' 45 a Maine Supreme Court case based on similar procedural facts.' 46 The rule "prevents the sentencing disparities that are inherently likely to occur when
two different judges engage in sentencing on the same sentencing
facts.' 47 The rule is easy to apply and "avoids the unseemly appearance that the defendant's ultimate sentence is greater than his first for
no better
reason than a change in the identity of the sentencing
' 48
judge.'
The Supreme Judicial Court believed that the new ruling would now
protect convicted defendants from any chilling effect which might have
resulted from the possibility of an increased sentence if the defendant
succeeded in an appeal and is subsequently reconvicted at trial. 49 The
142.
143.
144.
145.
See id. at 823,
See id. at 823,
Id. at 823, 647
576 A.2d 1359
647 N.E.2d at 1173.
647 N.E.2d at 1174.
N.E.2d at 1173.
(Me. 1990). James E. Violette was convicted of operating a
motor vehicle while under the influence of alcohol and was sentenced to 60 days in
jail and nine months probation. See id. at 1359. All but 30 days of this sentence
were suspended. See id. The court also ordered other punishment including suspension
of his driver's license for two years, a $750 fine, and participation in the Department
of Human Services' Multiple Offenders Program. See id. He appealed to the superior
court and succeeded in having his conviction vacated. See id. at 1360. Violette was
once again convicted of the same offense in May of 1989, by a different judge. See
id. at 1359. This judge sentenced him to six months in jail (all but 45 days of
which were suspended), one year of probation, the loss of his driver's license for two
years, a fine of $750, and mandatory participation in both the Multiple Offenders
Program and substance abuse counseling, which required him to abstain from drinking
and from possessing alcohol. See id. at 1359-60.
146.
147.
148.
149.
See Hyatt, 419 Mass. at 823, 647 N.E.2d at 1173-74.
Id.
Id. at 823, 647 N.E.2d at 1174.
See id.
546
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 23:529
court described the possibility of a sentencing judge imposing a retaliatory sentence in response to a defendant exercising the right to appeal
as slight. 5 ' Nonetheless, it adopted a principle which reembraces the
sweeping rule of Pearce for its ease of application rather than adopting
a rule designed to effectively safeguard against actual judicial vindictiveness.'
B. The Dissent in State v. Violette Accurately Analyzed the Absurd
Result Reached in Both Violette and Hyatt
Both Dwayne Hyatt and James Violette succeeded in appealing their
first convictions.'52 Both were retried, reconvicted, and resentenced to
greater sentences than those originally imposed.'
The Hyatt court,
extensively quoting from the majority opinion of Violette, found Chief
Judge McKusik's reasoning quite compelling.'54 Justice Collins' dissent
in Violette, however, proves to be much more comprehensive and analytical.
Justice Collins began his attack by pointing out that the court refused to engage in any significant analysis of the federal developments
that have occurred since the implementation of the Pearce prophylactic
rule. ' In a similar fashion, the Hyatt court merely recited a list of
Supreme Court cases and holdings which refined and narrowed the
issue of judicial vindictiveness but never engaged in any analysis on the
impact these decisions have had on the issue.'56 Most significantly, in
McCullough, the Supreme Court made clear that the presumption of
vindictiveness established in Pearce does not apply each time a defendant receives an increased sentence after a retrial.'57 The presumption
is inapplicable when a different sentencing authority imposed the second
sentence.5 8
Recognizing that the Pearce presumption "may block a legitimate
response to criminal conduct," Justice Collins stressed that the Supreme
Court limited its application of the inflexible presumption of vindictive-
150. See id., 647 N.E.2d at 1173.
151. See id. at 823, 647 N.E.2d at 1173.
152. See Hyatt, 419 Mass. at 816, 647 N.E.2d at 1170; State v. Violette, 576 A.2d
1359, 1359 (Me. 1990).
153. Hyatt, 419 Mass. at 816, 647 N.E.2d at 1170; Violette, 576 A.2d at 1359-60.
154. See Hyatt, 419 Mass. at 823, 647 N.E.2d at 1173-74.
155. See Violette, 576 A.2d at 1361 (Collins, J., dissenting).
156. Hyatt, 419 Mass. at 821, 647 N.E.2d at 1172.
157. Texas v. McCullough, 475 U.S. 134, 138 (1986).
158. See id. at 140; see also supra notes 7-9 and accompanying text.
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JUDICIAL VINDICTIVENESS
ness to instances where there exists a reasonable likelihood that actual
vindictiveness motivated the increased sentence." 9 Justice Collins continued by analyzing the Supreme Court's rationale in its four main
vindictiveness cases and concluded that the Supreme Court has continually "stepped away from . . . the Pearce rule.""'6 In both Violette 'and
Hyatt, the record lacked evidence of actual vindictiveness and neither
defendant alleged that such evidence existed.'
Considering this in
light of the fact that there was not even a reasonable likelihood that
vindictiveness motivated the second sentences, there is no sound basis
for applying the stifling prophylactic rule in these cases.
The evil Pearce sought to avoid was not enlarged sentences, but
rather, vindictiveness on the part of the sentencing judge.'62 The second trial judge in Violette did impose an increased sentence after retrial
but based the sentence on wholly objective, nonvindictive reasons.'63
Justice Collins suggested "that the interests of justice would be better
served [if the Court were to apply the less formalistic reasonable likelihood standard which is] presently embraced by the United States Supreme Court with respect to federal constitutional law."''" The court
should allow objective evidence to rebut the Pearce presumption regardless of whether it occurred prior to or after the imposition of the original sentence. "' 5 The absence of any reasonable likelihood of improper
motive in this case, demonstrated by the second sentencing judge by
enumerating the justification for the increased sentence on the record
and by reciting specific instances of the defendant's relevant conduct,
amply rebuts any presumption of vindictiveness. 6 The court should
159. Violette, 576 A.2d at 1362 (Collins, J., dissenting) (citing United States v.
Goodwin, 457 U.S. 368, 373 (1982)).
160. Id. at 1362 (Collins, J., dissenting). The four cases cited were Alabama v.
Smith, 490 U.S. 794 (1989), Texas v. McCullough, 475 U.S. 134 (1986), Chaffin v.
Stynchcombe, 312 U.S. 17 (1973), Colten v. Kentucky, 407 U.S. 104 (1972).
161. In Hyatt, the court stated "[t]he continued existence of a presumption of
vindictiveness is important to the defendant's case because the record does not support a claim that the judge was in fact vindictive." Hyatt, 419 Mass. at 821-22, 647
N.E.2d at 1172-73. In Violette, the second sentence was "imposed upon consideration
of the objective, non-vindictive factors . . . enumerated on the record." Violette, 576
A.2d at 1363 (Collins, J., dissenting).
162. See McCullough, 475 U.S. at 138.
163. See Violette, 576 A.2d at 1363 (Collins, J., dissenting).
164. Id. at 1364 (Collins, J., dissenting).
165. See id. "This language . . . was never intended to describe exhaustively all of
the possible circumstances in which a sentence increase could be justified."
McCullough, 475 U.S. at 142.
166. See Violette, 576 A.2d at 1363, 1364 (Collins, J., dissenting).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 23:529
have affirmed Violette's second sentence.
C. The Massachusetts Supreme Judicial Court Misinterpreted the
Policy Underlying Pearce's Prophylactic Rule
The Massachusetts Supreme Judicial Court based its ruling on two
factors. First, it focussed on the possibility that increased sentences
imposed after a successful appeal will have a "chilling effect" on convicted defendants and deter them from exercising their right to appeal. 67 Second, it noticed that a continued presumption of vindictiveness will prevent the imposition of disparate sentences based on the
same sentencing facts and that the presumption will prevent the "unseemly appearance" that the sentence is greater for no better reason
than a different judge imposed it. 6 This section evaluates the merit
of each of these justifications.
1. The Chilling Effect Justification
The court was guided by the principles expressed in Pearce, but it
failed to recognize its true significance. The Supreme Court did not
base Pearce on "unseemly appearances" or presumptuous "chilling effects," but rather on the need to prevent actual vindictiveness on the
part of the sentencing judge.'69 Pearce does not apply every time a
defendant receives a greater sentence on retrial, 7 ' but the Massachusetts court seemed to ignore the reasons why this is so.
The Pearce presumption of vindictiveness is a "'judicially created
means of effectuating the rights secured by the [Constitution].""' ' As
such, the Supreme Court has restricted it in application "to areas where
its 'objectives are thought most efficaciously served.""" The Court
"look[ed] to the need, under the circumstances, to guard against vindictiveness in the resentencing process.""" After carefully considering
whether the presumption was warranted when a different sentencing
authority imposes the increased sentence, the Supreme Court concluded
that it was not. 7 4
167.
(1995).
168.
169.
170.
171.
172.
173.
174.
Commonwealth v. Hyatt, 419 Mass. 815, 823, 647 N.E.2d 1168, 1173-74
See id., 647 N.E.2d at 1174.
See McCullough, 475 U.S. at 138.
See id.
Id. (quoting Stone v. Powell, 428 U.S. 465, 482 (1976)).
Id. (quoting Stone, 428 U.S. at 487).
Id. (citing Chaffin v. Stynchcombe, 412 U.S. 17, 25 (1973)).
See id. at 140.
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JUDICIAL VINDICTIVENESS
Moreover, in refining the proper application of Pearce, the Supreme
Court has never recognized a defendant's reluctance to appeal due to
the possibility that an increased sentence may have a chilling effect on
the right to appeal. 75 In Chaffin, the Court clearly stated that "the
[Pearce] Court intimated no doubt about the constitutional validity of
higher sentences in the absence of [actual] vindictiveness despite whatever incidental deterrent effect they might have on the right to appeal."' More recently, in McCullough, however, the Court expressly
refused to depart from this philosophy.'"
Despite this clear language explaining the rationale and policy driving the Pearce presumption, the Massachusetts Supreme Judicial Court
still insisted that the policy underlying Pearce supports the implementation of an inflexible prophylactic rule which must apply every time a
defendant is once again convicted after successfully appealing his or her
first conviction.'
The Supreme Judicial Court's overriding concern
was the possibility that a defendant's fear of an increased sentence will
deter him or her from appealing the conviction.' 79 This logic is
flawed, however, because a defendant must base an appeal on an error
that amounts to reversible error, and if the error was so prejudicial that
"justice may not have been done"'80 (because of errors that transpired
at the trial) the defendant will be hopeful that a new trial will cure the
error and present an opportunity for acquittal.
The possibility of a greater sentence did not prevent Dwayne Hyatt
from exercising his right to appeal. Since properly imposed harsher
sentences are permissible, "presumably [he was] looking for a remedy
for that class of hypothetical defendants who are not deterred from
appeal by the prospect of an appropriate increase in sentence but are
deterred by the prospect that the judge may increase their sentence for
unlawful reasons."'' The court need not concern itself with such
claims because there already exists a remedy for setting aside vindic-
175.
176.
177.
178.
(1995).
See Texas v. McCullough, 475 U.S. 134, 143 (1986).
Chaffin, 412 U.S. at 29.
See McCullough, 475 U.S. at 134.
See Commonwealth v. Hyatt, 419 Mass. 815, 823, 647 N.E.2d 1168, 1173-74
179. See id., 647 N.E.2d at 1174.
180. MASS. R. CraM. P. 30(b) (1996). "The trial judge upon motion in writing
may grant a new trial at any time if it appears that justice may not have been done.
Upon the motion the trial judge shall make such findings of fact as are necessary to
resolve the defendant's allegations of error of law." Id.
181. Commonwealth's Brief at 36, Commonwealth v. Hyatt, 419 Mass. 815, 647
N.E.2d 1168 (1995) (SJC 06579).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 23:529
tively motivated sentences.'82
The Supreme Court expressly rejected this chilling effect notion in
Chaffin, and the logic of the majority opinion provided a persuasive
basis for not imputing this rationale into the common law of Massachusetts. Justice Powell began his analysis by noting that there is "no
doubt about the constitutional validity of higher sentences in the absence of vindictiveness."'' 3 He observed that although the government
imposes many choices which may have "the effect of discouraging the
exercise of constitutional rights," those choices are not thereby forbidden. "84
' Justice Powell reasoned by analogy, arguing that a defendant
may waive the right to remain silent to present his or her case to a
jury, or may waive the right to trial and enter a plea to avoid a more
severe penalty." 5 The Supreme Court saw "nothing in the right to apa conviction, even where constitutional errors are claimed,
peal ..
those rights above the rights to jury trial and to remain
which elevates
86
silent."'
The Supreme Judicial Court embraced Justice Powell's reasoning in
Commonwealth v. Leroy,8 7 holding that "[n]ot all government imposed
choices in the criminal process which discourage the exercise of rights
are impermissible."' 88 In Mann v. Commonwealth,'89 the Supreme Judicial Court held that the fact that "a defendant may be reluctant to appeal a conviction from the District Court level [based on] a fear that he
might receive a more severe sentence after a trial de novo is not dispositive of the issue[;] . . . de novo sentencing after a trial de novo is
not unreasonable."' 90 The Supreme Judicial Court's own rationale in
these cases is inapposite to implementing a presumption of vindictiveness as a matter of state common law on the basis that the possibility
of an increased sentence will have a "chilling effect" on the defendant's
right to appeal. 9' Even if the possibility does have a slight effect on
182. See McCullough, 475 U.S. at 139.
183. Chaffin v. Stynchcombe, 412 U.S. 17, 29 (1973).
184. Id. at 30.
185. See id. at 30-32.
186. Id. at 33.
187. 376 Mass. 243, 380 N.E.2d 128 (1978).
188. Id. at 246, 380 N.E.2d at 130 (citing Chaffin v. Stynchcombe, 412 U.S. 17
(1973)).
189. 359 Mass. 661, 271 N.E.2d 331 (1971).
190. Id. at 666, 271 N.E.2d at 334-35; see also supra notes 37-52 and accompanying text.
191. See Commonwealth v. Hyatt, 419 Mass. 815, 823, 647 N.E.2d 1168, 1173
(1995) (citing State v. Violette, 576 A.2d 1359 (Me. 1990).
1997]
JUDICIAL VINDICTIVENESS
some defendants, the choice is still theirs to make.' 92
In Chaffin, Justice Powell doubted that the chill factor would have
any deterrent effect. 93 "The likelihood of actually receiving a more
harsh sentence is quite remote at the time a convicted defendant begins
to weigh the question whether to appeal . . . [and] [s]everal contingencies must coalesce."' 94 First, the defendant must succeed in appealing
to have the conviction set aside. Second, the appeal must order a retrial
rather than an outright dismissal. Third, the prosecutor must choose to
retry the case. Fourth, the defendant must choose to be retried rather
than entering into a plea bargain. Fifth, a judge must impose a harsher
sentence. Sixth, the Appellate Division of the Superior Court must not
reduce the increased sentence. Finally, seventh, the defendant must either not appeal that conviction or the appeals court must affirm that
conviction. 9" Based on such a remote chance that an actual chilling
effect would arise which actually deters convicted defendants from exercising their right to appeal, Massachusetts courts should not use the
"chilling effect" justification as an excuse to expand the presumption of
vindictiveness into the common law. 9'
2. The "Unseemly Appearances" Justification
The Hyatt court based its second ground for adopting a presumption
of vindictiveness on what it called "unseemly appearances."' 97 The
court was concerned that it would seem improper to have different sentences imposed when two sentencing authorities each relied on the same
set of sentencing facts.' 98 At first glance this seems to be a reasonable
statement. Upon careful consideration, however, it is clear that the concern is unwarranted.1 99
The U.S. Supreme Court fashioned the Pearce presumption to guard
against actual vindictiveness in the resentencing process; it was not
designed to combat the artificial appearance of possible vindictiveness
which can only be shown by the mere fact that a subsequent court
192. See Chaffin, 412 U.S. at 33.
193. See id
194. Id.
195. See Commonwealth's Brief at 36, Commonwealth v. Hyatt, 419 Mass. 815,
647 N.E.2d 1168 (1995) (SJC 06579).
196. See Texas v. McCullough, 475 U.S. 134, 143 (1986).
197. Hyatt, 419 Mass. at 823, 647 N.E.2d at 1173-74.
198. See id.
199. See Alabama v. Smith, 490 U.S. 794, 799-800. The defendant may always
prove actual vindictiveness. See id.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 23:529
increased the sentence."' Increased sentences motivated by legitimate
objective reasons are permissible.2"' Courts should construe Pearce as
requiring no more.20 2 Therefore, arguing that a sentence is impermissible because it looks bad is tantamount to saying that objective criteria
which legitimize an increased sentence, and are clearly not based on
actual vindictiveness, cannot be used to justify the increased sentence.20 3 This is so even though the law already affords a remedy for
sentences which in fact are based on actual vindictiveness.", The reasoning is circular and flawed.
Dwayne Hyatt properly received a new trial because the first trial
judge committed constitutional error by denying him a peremptory challenge of a juror."' At this point, "the original conviction has, at [his]
bequest, been wholly nullified and the slate wiped clean."20 6 Corresponding to the defendant's constitutional right to secure a new trial
when a court has committed constitutional error is society's interest in
"punishing one whose guilt is clear after he has obtained such a trial." 207
The defendant should not be able to secure a new trial and, at the
same time, receive a guarantee that his sentence will not be greater
w 0 9 provides a good example.
after retrial.20 8 Colten v. Kentucky
Kentucky's de novo court system afforded every defendant the right to
appeal from a conviction in an inferior court to the court of general
criminal jurisdiction.2 0 This right to a trial de novo was absolute.2" '
Similarly, Dwayne Hyatt was entitled to a new trial without having to
show he suffered any actual prejudice at his first trial because the erroneous denial of a peremptory challenge of a juror is reversible error.2" 2 The Colten Court, in upholding the increased sentence imposed
200.
201.
202.
203.
204.
205.
(1991);
206.
207.
208.
209.
210.
211.
212.
(1991).
See McCullough, 475 U.S. at 138.
See id. at 140.
See id.
See id.
See id. at 139; see supra notes 168-69 and accompanying text.
See Commonwealth v. Hyatt, 409 Mass. 689, 691, 568 N.E.2d 1148, 1149
see also supra note 111 and accompanying text.
North Carolina v. Pearce, 395 U.S. 711, 721 (1969).
Id.
See Colten v. Kentucky, 407 U.S. 104, 116-18 (1972).
407 U.S. 104 (1972).
See id. at 116.
See id.
See Commonwealth v. Hyatt, 409 Mass. 689, 692, 568 N.E.2d 1148, 1150
1997]
JUDICIAL VINDICTIVENESS
by the de novo court, reasoned that the court's work was not that with
which the Defendant was dissatisfied. The de novo court was not asked
to redo what it thought it had already done correctly, and the inferior
courts are not designed or equipped to protect against the infringement
of all constitutional freedoms.2"3 When defendants are subsequently
convicted in Kentucky's criminal court of general jurisdiction, which
affords all constitutional protections, they are subject to a sentence
based upon that judge's determination, and the sentence is not limited
to the length imposed by the inferior court." 4 Similarly, Hyatt received a new trial with every constitutional protection and should be
subject to the discretion of the trial judge absent a finding of actual
vindictiveness. 5
There is nothing unseemly about a judge exercising discretion in
sentencing based upon his or her view of the events that transpire in
the courtroom." 6 In Williams v. New York,2" ' the Supreme Court
recognized that in sentencing, "[h]ighly relevant-if not essential-to
[the judge's] selection of an appropriate sentence is the possession of
the fullest information possible concerning the defendant's life and characteristics."2 8 The sentencing judge needs "wide discretion in the sources and types of evidence used to assist him in determining the kind and
extent of punishment to be imposed within the limits of the law."219
Inherent in the judge's responsibility is the discretion to gauge whether
the defendant is "[c]apable of conforming to the norms of society as
established by its criminal laws."22
By focusing on what appearance an increased sentence may create,
and by preventing the imposition of a proper sentence even though
warranted by the facts in the record, the Hyatt court prevented the trial
judge from exercising simple discretion based on rational observation.
Modem concepts of individualized punishment demand that the punishment imposed fit the defendant."2 The trial judge must be able to factor the defendant's potential for rehabilitation as well as his "mental
213. See Colten, 407 U.S. at 116.
214. See id. at 116-17.
215. See id.
216. See Williams v. New York, 337 U.S. 241, 247 (1949).
217. 337 U.S. 241 (1949).
218. Id. at 247.
219. Id. at 246.
220. Texas v. McCullough, 475 U.S. 134, 144 (1986) (citing Rummel v. Estelle,
445 U.S. 263, 276 (1980)).
221. See Williams, 337 U.S. at 247.
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and moral propensities" into the sentence.222 Each of these factors
constitute objective criteria which can serve to justify a sentence increase and can also account for the possibility of sentencing disparities
which result from different judges sentencing based on the same sentencing facts. The record, by its very nature, cannot reflect the
defendant's attitude displayed during trial.'23
D. The Court Should Not Have Vacated the Sentence on the Armed
Robbery Conviction Because the Trial Judge Fully Complied with the
Standard
1. Judge Steams Acted Properly by Imposing a Harsher Sentence
Assuming that one can set aside the theoretical problem of applying
the Pearce presumption when a different sentencing authority imposes
an increased sentence, even though "the presumption derives from the
judge's personal stake in the conviction," Judge Steams properly complied with the Supreme Court's mandate.224 When the presumption applies, the judge must place on the record objective reasons, based on
the defendant's conduct, so a court may review the constitutional legitimacy of the increased sentence.225 That is precisely what Judge
Steams did.226
Prior to sentencing, Judge Steams commented that "[t]his is perhaps
the most gratuitously brutal crime of its type that I have encountered
yet as a judge.""22 The judge clearly stated that he viewed the armed
222. McCullough, 475 U.S. at 143.
223. See id.
224. Chaffin v. Stynchcombe, 412 U.S. 17, 27 (1973).
225. See North Carolina v. Pearce, 395 U.S. 711, 726 (1969).
226. See Commonwealth v. Hyatt, 419 Mass. 816, 820, 647 N.E.2d 1168, 1172
(1995).
227. Id. The trial judge had valid reasons for coming to this conclusion: On the
morning of April 17, 1987, the 21 year old victim left her family home in Milton at
about 7:10 a.m. and walked by herself to the Valley Road Station. Commonwealth's
Brief at 1, Commonwealth v. Hyatt, 419 Mass. 816, 647 N.E.2d 1168 (1995) (SJC
06579). When she reached the bottom of the station steps she saw a man, but after
briefly looking at him, she walked to the platform to see if the train was coming.
See id. at 2.
She then felt a gun in her back. See id. She asked the man to take her pocketbook and leave her alone, but he demanded they move out of sight. See id. She resisted while the Defendant dragged her at gunpoint across the tracks, down the opposite side of the platform, behind a cement retaining wall, and finally to an area of
dirt and grass between the cement wall and a fence. See id. The victim tenaciously
resisted and continued to try to offer him her pocketbook, but ultimately, she was no
match for him. See id. When he began to take off her sneakers she cried out, "No.
1997]
JUDICIAL VINDICTIVENESS
robbery and aggravated rape convictions as distinctly different crimes
and provided additional, wholly objective, legitimate reasons for imposing an increased sentence.2 8
At the sentencing hearing, the prosecutor informed the judge that "in
less than a year the Defendant had attacked four women, and had attempted to rape three of them. One he had stabbed with a six-inch
meat cleaver[, and he stabbed another] in the face with a screwdriver." 9 The judge then explicitly placed on the record the fact that he
designed the sentence to punish brutal conduct, to protect society from
Hyatt ever attacking another woman again, and to punish separate
crimes separately." Moreover, the Defendant did not claim that any
of these reasons were improper considerations in calculating a proper
sentence." When the defendant concedes that vindictiveness played
no part in sentencing, the Supreme Court has held that Pearce does not
Don't do that." Id. In response to her pleading, he punched her repeatedly in the face
and then continued to remove her sneakers and clothing. Her resistance at this point
was met with another facial beating. See id.
He then proceeded to remove her underwear and perform oral sex on her while
keeping his gun at his side. See id. She screamed for help, but that only precipitated
more facial beatings. See id. Each time she cried out for help, he either punched her
in the face or slammed her head against the concrete wall. See id.
After some time, he took out a knife and held it against her throat, demanding
that she perform oral sex -on him. See id at 3. She refused, and then found herself
on her stomach being raped anally. See id. He then turned her over and raped her
vaginally. She told him that it was hurting her very much, and he responded by
telling her "it is supposed to hurt . . . [a]nd I want it to hurt." Id.
Finally, the Defendant picked up the pocketbook that she tried to give him
earlier. He took out her bank card, demanded to know her bank card number, and
then took the jewelry she was wearing before he left. See id. He told her to stay
there for 20 minutes and, if she said anything, he would find her and kill her. See
id.
It should be clear that the defendant's intent was to commit both rape and
robbery. If he just wanted to rape her, he would not have taken the time to go
through her purse. If he just wanted the money and jewelry he could have taken it
without putting the victim through this ordeal. Moreover, he knew at the outset that
he was going to commit both crimes because he demanded that they move out of
sight where no one could see them. See id. at 2. Thus, the trial judge had a legitimate basis for considering the two crimes as separate from each other for sentencing
purposes because that was how the defendant perceived them. See id. The judge's
explanation, when combined with these facts, provides a nonvindictive reason for the
increased sentence. See id.
228. See id.
229. See id. at 30 n.25.
230. See Hyatt, 419 Mass. at 820, 647 N.E.2d at 1172.
231. See Commonwealth's brief at 31, Hyatt (SJC 06579).
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apply. 232
The prosecutor also informed the judge of the Defendant's penal
disciplinary record.233 These reports had a direct bearing on the
Defendant's capacity for rehabilitation.2 4 The reports demonstrated
that Hyatt displayed a continued attitude of disrespect for authority
leading one to believe that his prospects for rehabilitation were
poor.235 Had the probation department offered this evidence, such
information would have rebutted the presumption of vindictiveness."
There is no reason why a court should subject the same information
offered by the prosecutor to a different standard. 23 The Pearce Court
made it clear that it is proper for the judge to consider the defendant's
prison record in determining the appropriate punishment.238
The Defendant's chance for a successful rehabilitation was a wholly
logical, nonvindictive reason which rebutted the Pearce presumption of
vindictiveness. 239 In this case, the record supported the conclusion that
Judge Steams simply took "a fresh look at the facts""24 and acted appropriately in exercising his independent discretion which reflected the
Defendant's "life, conduct, and . . . mental and moral propensities."24'
The sentence must not only fit the crime, but the defendant as well.242
2. The Defendant Failed to Show That Judge Steams Acted
Improperly
Dwayne Hyatt did not offer any evidence which objectively supported the notion that Judge Steams increased the sentence based on judicial vindictiveness. The only argument advanced by the Defendant was
232. Texas v. McCullough, 475 U.S. 134, 138 (1986); see also Moon v. Maryland,
398 U.S. 319 (1970). Hyatt argued that the first sentencing judge was not aware of
the reasons for increasing the sentence. See Commonwealth's Brief at 31, Hyatt (SJC
06579). He relied on language in Pearce which supported this contention. See id.
This argument is completely without merit, however, because the Supreme Court later
explained that "'[t]his language [in Pearce] was never intended to describe
exhaustively all of the possible circumstances in which a sentence increase may be
justified" Id. (quoting McCullough, 475 U.S. at 141).
233. See Commonwealth's Brief at 31 n.27, Hyatt (SJC 06579).
234. See id.
235. See id.
236. See Hurlbert v. Cunningham, 996 F.2d 1273, 1276 (1st Cir. 1993).
237. See Commonwealth's Brief at 31 n.27, Hyatt (SJC 06579)
238. See North Carolina v. Pearce, 395 U.S. 711, 723 (1969).
239. See Rock v. Zimmerman, 959 F.2d 1237, 1257 (3d Cir. 1992).
240. Id.
241. Texas v. McCullough, 475 U.S. 134, 143 (1986).
242. See Williams v. New York, 337 U.S. 241, 247 (1949).
1997]
JUDICIAL VINDICTIVENESS
that the court imposed the sentence immediately after the court listened
to a statement from the victim which criticized the Supreme Judicial
Court's reversal of the initial conviction.243 Judge Steams, however,
never endorsed the victim's criticism of the court.244
Presuming vindictiveness on the basis that the sentencing followed
criticism of the court equates to saying that Judge Steams is incapable
of "listening to the comments of a lay witness and discounting those
remarks which are legally inappropriate sentencing considerations."245
Judge Steams did not share in the victim's frustration of having to
endure a new trial resulting from the improper denial of a peremptory
challenge.246 Similarly, in McCullough, where the trial judge herself
granted the Defendant's motion for a new trial, the judge went on re'
cord "agreeing that [the Defendant's] claims had merit."247
The Supreme Court stated that "[p]resuming vindictiveness on this basis alone
would be tantamount to presuming that a judge will be vindictive towards a defendant merely because he seeks an acquittal."248 There is
no basis for believing that "judges ... view defendants as temerarious
for filing motions for new trials"249 and are annoyed at having to sit
through trials whose results are already determined. It would be disheartening to adopt the view that "the judicial temperament of our
Nation's trial judges [suddenly changes] upon the filing of a successful
25
post-trial motion.""
243. Defendant's Brief at 25-27, Commonwealth v. Hyatt. 419 Mass. 815, 647
N.E.2d 1168 (1995) (SJC 06579). The victim addressed both the Judge and jury,
stating:
Firstly, I would like to thank the Judge and all of the jury for such a wise
decision. I know it certainly must not be easy to try to vote as to what you
want to do, but I am so grateful, you really don't know. . . . Therefore, I
felt I was compelled to go through a retrial rather than allow this person to
be let back out on the streets to hurt any of your wives, sisters, friends, [or]
aunts.
Id. at 25 n.l1.
244. Commonwealth's Brief at 33, Commonwealth v. Hyatt, 419 Mass. 815, 647
N.E.2d 1168 (1995) (SJC 06579).
245. Id. During the course of the entire trial, the only substantive attack the defendant made on Judge Steams' conduct was his refusal to give a proposed jury instruction. See id. The defendant himself agreed that the ruling was proper under Massachusetts Law. See id. (citing Defendant's Brief at 38, Hyatt (SJC 06579)).
246. See Commonwealth's Brief at 32-33, Hyatt (SJC 06579).
247. Texas v. McCullough, 475 U.S. 134, 139 (1986).
248. Id.
249. Id
250. Id.
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Judge Steams did impose a harsher sentence, but it does not follow
that vindictiveness motivated that sentence, rather than that the first
" ' Based on the information
sentence was too lenient.25
before Judge
Steams, the sentence was entirely proper because Pearce requires no
more than an on-the-record, logically objective, nonvindictive reason for
the increased sentence.252 Sentencing judges are afforded broad discretion in sentencing.253 Judge Steams' sentence not only complied fully
with the mandate of Pearce, but also satisfied society's interest in protecting its citizens from violent criminals who have little chance of
rehabilitation." 4
V.
CONCLUSION
The Supreme Judicial Court's decision in Commonwealth v. Hyatt
marked an unfortunate turning point in Massachusetts jurisprudence. In
an effort to safeguard the rights of convicted defendants, the court went
so far as to bum the house in order to roast a pig. More than two
decades worth of Supreme Court decisions have narrowed and refined
the Pearce presumption of judicial vindictiveness to its proper scope.
Unfortunately, however, the Massachusetts Supreme Judicial Court chose
to expand the presumption into the common law without even considering its true underlying justification: to combat actual vindictiveness in
the resentencing process. Not only did the sentence imposed in this case
lack vindictiveness, but it served public policy in keeping a dangerous
rapist, who displayed little or no chance of rehabilitation, off the
streets. The decision was truly a miscarriage of justice.
Robert M Strasnick
251. See id. at 140; see also, Colten v. Kentucky, 407 U.S. 104, 117 (1972).
252. See Colten, 407 U.S. at 117.
253. See Wasman v. United States, 468 U.S. 559, 563-64 (1984).
254. North Carolina v. Pearce, 395 U.S. 711, 723 (1969); see also, McCullough,
475 U.S. at 144.