The petitioner complains that the procedure has a chilling effect on his right of appeal. "In answering this question we must have in mind that a defendant gives up nothing by going to trial in the district court. . . . Looking at the total circumstances, where the state offers the defendant a full trial, with full right of appeal therefrom, in the Superior Court, we do not think it unreasonable for it to restrict the appeal from the district court in the sense here complained of. . . . The state's two step procedure has a legitimate purpose." Lemieux v. Robbins, 414 F.2d 353, 355-356 (1st Cir.), cert. den. 397 U.S. 1017. The Commonwealth's interest is not in dealing more harshly with the defendant if he appeals but rather that the Superior Court judge "use his own independent judgment, based upon the facts as they appear in the trial before him, in imposing punishment . . ." (emphasis supplied).
The Massachusetts procedure here challenged should be tested by this same standard of reasonableness. See also Lemieux v. Robbins, 1 Cir., 1969, 414 F.2d 353, 355, cert. denied 397 U.S. 1017, 90 S.Ct. 1247, 25 L.Ed.2d 432. As inPearce, the Massachusetts procedure does not permit the state to reopen the question of sentence on its own initiative.
Cf. Manns v. Koontz, 451 F.2d 1344, 1345 (4th Cir. 1971); Manns v. Commonwealth, 213 Va. 322 (1972). See Lemieux v. Robbins, 414 F.2d 353, 355-356 (1st Cir. 1969), cert. den. 397 U.S. 1017 (1970). 2. Fifth Amendment Claim.
* * * "In today's decision, the court is not insensitive to the logical and persuasive argument to the contrary in Lemieux v. Robbins, 414 F.2d 353 (1 Cir. 1969), cert. denied 397 U.S. 1017, 90 S.Ct. 1247, 25 L.Ed.2d 432 (1970). Likewise we express deference to the opinion in Evans v. City of Richmond, 210 Va. 403, 171 S.E.2d 247 (1969).
N.M. Stat. Ann. § 36-15-3 (Supp. 1971).Pearce applies: Rice v. North Carolina, 434 F.2d 297 (CA4 1970), vacated and remanded on ground of possible mootness, 404 U.S. 244 (1971); contra: Lemieux v. Robbins, 414 F.2d 353 (CA1 1969), cert. denied, 397 U.S. 1017 (1970). See also Manns v. Allman, 324 F. Supp. 1149 (WD Va. 1971), holding that Pearce does not apply where an enhanced penalty is imposed by a jury rather than a judge.
In this he is correct. Walsh v. Commonwealth, 1970, Mass., 260 N.E.2d 911; Hicks v. Commonwealth, 1962, 345 Mass. 89, 185 N.E.2d 739, cert. denied 374 U.S. 839, 83 S.Ct. 1891, 10 L.Ed.2d 1060; cf. Lemieux v. Robbins, 1 Cir., 1969, 414 F.2d 353, cert. denied 397 U.S. 1017, 90 S.Ct. 1247, 25 L.Ed.2d 432. Nor does he claim the sentence was otherwise unlawful.
We think Rice is entitled to expunction of the record of them. In today's decision, the court is not insensitive to the logical and persuasive argument to the contrary in Lemieux v. Robbins, 414 F.2d 353 (1 Cir. 1969), cert. denied 397 U.S. 1017, 90 S.Ct. 1247, 25 L.Ed.2d 432 (1970). Likewise we express deference to the opinion in Evans v. City of Richmond, 210 Va. 403, 171 S.E.2d 247 (1969).
That portion of the opinion which could be interpreted as indicating general support of the two-tier system itself is clearly dicta. Similarly, Lemieux v. Robbins, 414 F.2d 353 (1 Cir. 1969), cert. denied 397 U.S. 1017, 90 S.Ct. 1247, 25 L.Ed.2d 432, cannot be read as supporting the Massachusetts two-tier system. In Lemieux, the Circuit Court was concerned with the Maine two-tier system which differs significantly from that in Massachusetts in that it is not compulsory.
Diaz on the other hand came out of the Philippine Islands where dual sovereignty was not in issue. See Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084 (1907) (rejecting the concept of "dual sovereignty" in the Philippine Islands). The jurisdictional language in Diaz has been followed, however, in Lemieux v. Robbins, 414 F.2d 353 (1st Cir. 1969); Grear v. Maxwell, 355 F.2d 991 (6th Cir. 1966), (per curiam) and Bacon v. Sullivan, 200 F.2d 70 (5th Cir. 1952), cert. den., 345 U.S. 910, 73 S.Ct. 651, 97 L.Ed. 1345 (1953). It is clear that the Constitution prohibits the trial of a person for an offense where he has been previously charged with and convicted of a lesser included offense arising out of the same act or activity.
We note that for similar reasons at least one Federal appellate court has refused to apply the Pearce rule to the imposition of a harsher sentence than that imposed by a State District Court after a trial de novo in a State Superior Court. Lemieux v. Robbins, 414 F.2d 353 (1st Cir.). Cf. Torrance v. Henry, 304 F.Supp. 725 (E.D.N.C.).