STATE v FISSETTE

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No, 12195 I N THE SUPREME C U T O THE STATE OF M N A A OR F OTN 1972 T E STATE O MONTANA, H F P l a i n t i f f and Respondent, -vs - BRUCE DAVID FISSETTE, Defendant and Appellant, Appeal from: District Court of t h e Eighteenth J u d i c i a l District, Honorable W. W, Lessley, Judge presiding. Counsel of Record : For Appellant : Brown and G i l b e r t , Bozeman, Montana, William E. G i l b e r t argued, Bozeman, Montana, For Respondent : Hon, Robert L. Woodahl, Attorney General, Helena, Montana. David V, Gliko, A s s i s t a n t Attorney General, argued, Helena, Montana, Thomas A. Olson, County Attorney, Bozeman, Montana. Thomas D, Gai, Deputy County Attorney, appeared, Bozeman, Montana. Submitted: A p r i l 25, 1972 Decided: JllL 2 O Filed: ;jhl'~ 14 1972 2 1972. M r . J u s t i c e Gene B. Daly delivered t h e Opinion of t h e Court. Defendant, Bruce David F i s s e t t e , was t r i e d i n t h e j u s t i c e of t h e peace court i n G a l l a t i n County, Montana. Following a jury v e r d i c t of "guilty" of t h e misdemeanor crime of "physical cont r o l of v e h i c l e while under the influence of i n t o x i c a t i n g llquor", he was sentenced by the j u s t i c e of the peace t o pay a f i n e of $210 * Defendant appealed t h i s judgment of conviction t o the d i s t r i c t court of t h e eighteenth j u d i c i a l d i s t r i c t , county of G a l l a t i n and a f t e r a t r i a l de novo t h e jury found defendant guilty. The court entered judgment on t h e v e r d i c t of a $500 f i n e and a j a i l sentence of s i x months, with a l l but t h i r t y days suspended. Defendant appeals from t h e f i n a l judgment, There i s but one i s s u e presented on appeal: Was i t e r r o r f o r the d i s t r i c t court t o increase t h e sentence or punishment a f t e r t r i a l de novo i n the d i s t r i c t court under t h e f a c t s of t h i s case? The United S t a t e s Supreme Court decision r e l i e d on by defendant, North Carolina v. Pearce, 395 U.S. 7 1 1 , 89 S . C t . 2072, 23 L ed 2d 656, 669, s t a t e s : "Due process of law, then, r e q u i r e s t h a t v i n d i c t i v e ness a g a i n s t a defendant f o r having successfully attacked h i s f i r s t conviction must play no p a r t i n t h e sentence he receives a f t e r a new t r i a l . And since the f e a r of such vindictiveness may unconstit u t i o n a l l y d e t e r a defendant's e x e r c i s e of t h e r i g h t t o appeal o r c o l l a t e r a l l y a t t a c k h i s f i r s t conviction, due process a l s o r e q u i r e s t h a t a defendant be freed of apprehension of such a r e t a l i a t o r y motivation on t h e p a r t of the sentencing judge. II I n order t o a s s u r e t h e absence of such a motivation, we have concluded t h a t whenever a judge imposes a more severe sentence uDon a defendant a f t e r a new t r i a l , the reasons f o r h i s doing so must affirmat i v e l y appear. Those reasons must be based upon o b j e c t i v e information concerning i d e n t i f i a b l e conduct on the p a r t of t h e defendant occurring a f t e r the time of t h e o r i g i n a l 'sentencing proceeding.' And the - - f a c t u a l d a t a upon which t h e increased sentence i s based must be made p a r t of t h e recrod, s o t h a t t h e c o n s t i t u t i o n a l legitimacy of t h e i n creased sentence may be f u l l y reviewed on appeal." (Emphasis added ) . Pearce was n o t a 1t de novo" cause i n t h e context we a r e speaking of de novo i n t h i s opinion, y e t t h e language does not exclude a "de novo" c a s e when i t speaks i n terms of a new t r i a l . Defendant argues t h a t a l l t r i a l s "anew" a r e It de novo", viewed literally. The United S t a t e s Supreme Court i n Colten v. Kentucky, U.S. P S.Ct. 9 L ed 2d , No, 71-404, (Kentucky Court of Appeals, Decided June 12, 1972), decided t h e i s s u e presented h e r e , Colten involves a two-tier system, t h e same a s our j u s t i c e and d i s t r i c t c o u r t system and i n Kentucky appeal from t h e lower c o u r t i s a matter of r i g h t and t h e t r i a l on appeal i s de novo, a s i t i s i n Montana. I n d i s c u s s i n g t h e i s s u e s i n Colten t h e United S t a t e s Supreme Court s a i d : "Colten r i g h t l y reads Pearce t o f o r b i d , following a s u c c e s s f u l appeal and reconviction, t h e imposition of a g r e a t e r punishmentthan was imposed a f t e r t h e f i r s t t r i a l , absent s p e c i f i e d f i n d i n g s t h a t have not been made here. He i n s i s t s t h a t t h e Pearce r u l e i s a p p l i c a b l e h e r e and t h a t t h e r e i s no m n t d i f f e r ence between t h e Pearce model and t h e Kentucky twot i e r t r i a l de novo system. Both, he a s s e r t s , involve reconviction and resentencing, both provide t h e conv i c t e d defendant with t h e r i g h t t o 'appeal' and i n both---even thouah under t h e Kentuckv scheme t h e I appeal' i s i n r G a l i t y a t r i a l de noGo---a penalty f o r t h e same crime i s f i x e d twice, with t h e same p o t e n t i a l f o r an increased penalty upon7a s u c c e s s f u l ' a p p e a l 1 . " ~ u tPearce d i d n o t t u r n simply on the f a c t of convict i o n , appeal, r e v e r s a l , reconviction, and a g r e a t e r sentence. The c o u r t was t h e r e concerned with two dedefendants who, a f t e r t h e i r convictions had been s e t a s i d e on appeal, were reconvicted f o r t h e same o t t e n s e s and sentenced t o longer prison terms. I n one c a s e t h e term was increased from 10 t o 25 years, Positing; t h a t a more severe penalty a f t e r reconviction would v i o l a t e due process of law i f imposed a s purposeful punishment f o r having s u c c e s s f u l l y appealed,the c o u r t concluded that such untoward sentences occurred with sufficient frequency to warrant the imposition of a prophylactic rule to ensure ' that vindictiveness against a defendant for having successfully attacked his first conviction * * * [would] play no part in the sentence he receives after a new trial * * *' and to ensure that the apprehension of such vindictiveness does not I deter a defendant's exercise of the right to appeal or collaterally attack his first conviction * * *' 395 U.S., at 725. "Our view of the Kentucky two-tier system of administering criminal justice, however, does not lead us to believe, and there is nothing in the record or presented in the briefs to show, that the hazard of being penalized for seeking a new trial, which underlay the holding of Pearce, also inheres in the de novo trial arrangement. Nor are we convinced that defendants convicted in Kentucky's inferior courts would be deterred from seeking a second trial out of fear of judicial vindictiveness. The possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system. "We note first the obvious: that the court which conducted Colten's trial and imposed the final sentence was not the court with whose work Colten was sufficiently dissatisfied to seek a different result on appeal; and it is not the court that is asked to do over what it thought it had already done correctly. Nor is the de novo court even asked to find error in another court's work. Rather, the Kentucky court in which Colten had the unrestricted right to have a new trial was merely asked to accord the same trial, under the same rules and procedures, available to defendants whose cases are begun in that court in the first instance. It would also appear that however understandably a court of general jurisdiction might feel that the defendant who has had a due process trial ought to be satisfied with it, the de novo court in the two-tier system is much more likely meet the attitude of the Kentucky Court of Appeals in this case when it stated that 'the inferior courts are not designed or equipped to conduct error-free trials, or to ensure full recognition of constitutional freedoms. They are courts of convenience, to provide speedy and inexpensive means of disposition of charges of minor offenses.' Colten v. Commonwealth, 467 S,W.2d 374, 379 (Ky. 1971). We see no reason, and none is offered, to assume that the de novo court will deal any more strictly with those who insist on a trial in the superior court after conviction in the Quarterly Court than it would with those defendants whose cases are filed originally in the superior court and who choose to put the State to its proof in a trial subject to constitutional guarantees, It is suggested, however, that the sentencing strictures imposed by Pearce are essential in order to minimize an II asserted unfairness to criminal defendants who must endure a trial in an inferior court with less than adequate protections in order to secure a trial comporting completely with constitutional guarantees. We are not persuaded, however, that the Kentucky arrangement for dealing with the less serious offenses disadvantages defendants any more or any less than trials conducted in a court of general jurisdiction in the first instance, as long as the latter are always available. Proceedings in the inferior courts are simple and speedy, and, if the results in Colten's case are any evidence, the penalty is not characteristically severe. Such proceedings offer a defendant the opportunity to learn about the prosecution's case and, if he chooses, he need not reveal his own. He may also plead guilty without a trial and promptly secure a de novo trial in a court of general criminal jurisdiction, He cannot, and will not, face the realistic threat of a prison sentence in the inferior court without having the help of counsel, whose advice will also be available in determining whether to seek a new trial, with the slate wiped clean, or to accept the penalty imposed by the inferior court. The State has no such options. Should it not prevail in the lower court, the case is terminated, whereas the defendant has the choice of beginning anew. In reality his choices are to accept the decision of the judge and the sentence imposed in the inferior court or to reject what in effect is no more than an offer in settlement of his case and seek the judgment of judge or jury in the superior court, with sentence to be determined by the full record made in that court. We cannot say that the Kentucky trial de novo system, as such, is unconstitutional or that it presents hazards warranting the restraints called for in North Carolina v. Pearce, particularly since such restraints might, to the detriment of both defendant and State, diminish the likelihood that inZerior courts would impose lenient sentences whose efkect would be to limit the discretion ot a superior court judge or jury if the defendant is retried and found guilty*"(~mphasis added) The judgment of the district court is affirmed. Associate Justices.

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