Opinion
No. 12-CM-101 2011 CMD 18531
05-24-2012
BOBBY DARRYL THORNE, Appellant, v. UNITED STATES, Appellee.
Notice: This published judgment is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
BEFORE: Glickman and Blackburne-Rigsby, Associate Judges, and Reid, Senior Judge.
JUDGMENT
Originally issued on May 16, 2012, as unpublished. Issued today as published.
On consideration of appellant's motions for summary reversal and remand, appellee's motions to late-file and file the lodged opposition, and appellant's lodged reply, it is
ORDERED that appellee's motions to file the lodged opposition are granted and the Clerk shall file the lodged opposition and reply. It is
FURTHER ORDERED that the motions for summary reversal are granted. See Oliver T. Carr Mgm't, Inc. v. Nat'l Delicatessen, Inc., 397 A.2d 914, 915 (D.C. 1979). Appellant has moved for summary reversal and for re-sentencing by another judge, on the ground that the trial judge sentenced him more severely because he exercised his Sixth Amendment right to confront the government chemist at trial. In brief, the trial judge initially discouraged appellant from exercising that right, and thereafter stated that she would "take into account" appellant's insistence on cross-examining the chemist and that this decision would "have consequences" for appellant. After several such comments, to which appellant made timely objection, the judge sentenced appellant to 180 days in prison, the maximum term of imprisonment authorized by law. This was a substantially longer period of incarceration than the government had sought. Appellant is now mid-way through serving his sentence.
In view of the judge's comments, there is a reasonable likelihood that she punished appellant for invoking his Sixth Amendment right of confrontation. "[Penalizing those who choose to exercise constitutional rights [is] patently unconstitutional," North Carolina v. Pearce, 395 U.S. 711, 724 (1969) (internal quotation marks omitted), and therefore "[t]he augmentation of sentence based on a defendant's decision to stand on his right to put the Government to its proof rather than plead guilty is clearly improper." Coles v. United States, 682 A.2d 167, 169 (D.C. 1996) (internal quotation marks and alterations omitted).
See also United States v. Cruz, 977 F.2d 732, 734 (2d Cir. 1992) (vacating sentence and remanding case for re-sentencing by another judge, because trial judge's "remarks created an unacceptable risk that the sentence was impermissibly enhanced above an otherwise appropriate sentencing norm to penalize the defendant for exercising his constitutional right to stand trial"); United States v. Crocker, 788 F.2d 802, 809 (1st Cir. 1986) (same result, because trial judge's "remarks on how the presentation of a frivolous case and the ensuing waste of judicial resources could be factors in determining the sentence to be imposed [were] sufficient to establish that there was a reasonable likelihood of vindictiveness in the imposition of a harsher sentence on the defendant").
The court will issue a more detailed opinion at a later date. In the meantime, appellant is entitled to appropriate relief from his unconstitutionally imposed sentence. Accordingly, we hereby vacate appellant's sentence and remand this case to the Superior Court with instructions that it be re-assigned without delay to a different judge for a prompt re-sentencing of appellant.It is
See In re D.E., 991 A.2d 1205, 1214 (D.C. 2010) ("[T]hree principal factors to consider in determining whether further proceedings should be conducted before a different judge [are]: '(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.'" (quoting United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977) (en banc)); see also McPhaul v. United States, 452 A.2d 371, 374-75 (D.C. 1982) (remanding for re-sentencing before a new judge after finding that the trial court had relied on "inappropriate" considerations in sentencing which "could well raise constitutional questions").
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FURTHER ORDERED that the Clerk shall issue the mandate forthwith.
ENTERED BY DIRECTION OF THE COURT:
JULIO A. CASTILLO
Clerk of the Court
Honorable Jennifer M. Anderson Honorable Russell Canan Clerk, Superior Court
Cassandra Snyder, Esquire
111 F Street, NW
Washington, DC 20001
Roy W. McLeese III, Esquire
Assistant United States Attorney