# The State of Texas v. Daniel Grundstrom

> Court of Appeals for the Fifth Circuit · October 25, 1968 · 404 F.2d 644

URL: https://www.frixlaw.com/law-library/cases/9454093

## Case

- **Full name:** The STATE OF TEXAS Et Al. Appellants, v. Daniel GRUNDSTROM, Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** October 25, 1968
- **Citations:** 404 F.2d 644; 1968 U.S. App. LEXIS 5128
- **Precedential status:** Published
- **Opinion:** Dissent by Thornberry
- **Judges:** Thornberry, Rives, Gewin
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

THORNBERRY, Circuit Judge
(dissenting) :
Invoking our power under 28 U.S.C. § 2243 to dispose of habeas corpus petitions “as law and justice require,” I would dismiss the State’s appeal with the proviso that if Grundstrom be retried it be on the original charge, that he not be subject to any sentence greater than that first imposed, and that he be given credit for time served under the 1962 conviction. I must respectfully dissent from this Court’s' dismissal of the appeal without qualification.
The argument that we should pretermit discussion of the constitutional issue and leave its initial resolution to state courts is especially persuasive in this case because there is concededly a chance appel-lee will be acquitted even if retried under the new indictment, thereby mooting the issue. 1 Nevertheless, I do not believe the principle of comity relied on by the majority should be decisive because federal decisions make it clear to me that a conviction under a new indictment containing an enhancement provision would be constitutionally impermissible. Where *650 the relevant constitutional issue for all practical purposes has already been resolved, there is no sound reason for a federal court in a later case to leave initial determination of this issue to state courts. 2
In January of this year, the District Attorney of Dallas County twice attempted to bring Grundstrom to trial on a new indictment containing enhancement averments that, on' conviction, would make a life sentence mandatory. In view of the ■State’s obvious desire to obtain an increased sentence on retrial, I do not believe it is premature for us to consider whether an increased sentence would be ■constitutional. That appellee may ultimately be acquitted is beside the point: If the constitutional law is clear, the State has no legitimate interest in burdening him with a trial under the new indictment. In my judgment, Patton v. State of North Carolina, 4th Cir. 1967, 381 F.2d 636 , cert. denied, 1968, 390 U.S. 905 , 88 S.Ct. 818 , 19 L.Ed.2d 871 , presents unanswerable constitutional objections to an increased sentence or denial of credit for time served on retrial where the original conviction has been set aside on collateral attack because of constitutional errors. First, the court said that any increase in the original sentence would constitute double punishment for the same offense in violation of the fifth amendment. This conclusion is supported by authorities suggesting that once service of the original sentence has commenced, as in the instant case, there can be no increase. E. g., Ex parte Lange, 1873, 85 U.S. (18 Wall) 163, 21 L.Ed. 872 ; United States v. Sacco, 2d Cir. 1966, 367 F.2d 368 ; United States v. Adams, 6th Cir. 1966, 362 F.2d 210 ; Kennedy v. United States, 9th Cir. 1964, 330 F.2d 26 ; Ekberg v. United States, 1st Cir. 1948, 167 F.2d 380 . Second, the court said that to require a defendant to risk an increased sentence as a price of exercising postconviction remedies unduly fetters the use of those remedies and thus violates due process. See Griffin v. People of the State of Illinois, 1956, 351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed. 891 , 55 A.L.R.2d 1055 ; see also Marano v. United States, 1st Cir. 1967, 374 F.2d 583 ; Alstyne, In Gideon’s Wake: Harsher Penalties and the “Successful” Criminal Appellant, 76 Yale L.J. 603 (1965). Finally, Patton holds that an increase violates the equal-protection clause of the fourteenth amendment because the threat of harsher punishment falls solely on those who seek correction of their sentences by postconviction remedies, thus creating an irrational basis for selection of the class on which the burden falls and an irrational means of effectuating any valid state policy. See Whaley v. State of North Carolina, 4th Cir. 1967, 379 F.2d 221 ; Whalen, Resentence Without Credit for Time Served: Unequal Protection of the Laws, 35 Minn.L.Rev. 239 (1951). 3
The Fourth Circuit’s decision in Patton is echoed by a number of district courts. Kelly v. State of North Carolina, E.D. *651 N.C.1967, 276 F.Supp. 200 ; Holland v. Boles, N.D.W.Va.1967, 269 F.Supp. 221 ; Louden v. Boles, N.D.W.Va.1967, 269 F.Supp. 1 ; Gray v. Hocker, D.Nev. 1967, 268 F.Supp. 1004 ; Gainey v. Turner, E.D.N.C.1967, 266 F.Supp. 95 ; Hill v. Holman, M.D.Ala.1966, 255 F.Supp. 924 . Also, recent state cases have taken a similar view. People v. Ali, 1967, 66 Cal.2d 438 , 57 Cal.Rptr. 348 , 424 P.2d 932 ; People v. Henderson, 1963, 60 Cal.2d 482 , 35 Cal.Rptr. 77 , 386 P.2d 677 ; Moore v. Buchko, 379 Mich. 624 , 154 N.W.2d 437 (1967); State v. Turner, 429 P.2d 565 (Oregon 1967). This Circuit has adopted a qualified version of Patton set forth in a district court opinion by Judge Frank Johnson of the Midddle District of Alabama. See Rice v. Simpson, M.D.Ala.1967, 274 F.Supp. 116 , aff’d, 5th Cir. 1968, 396 F.2d 499 , cert. granted, 393 U.S. 932 , 89 S.Ct. 292 , 21 L.Ed.2d 268 . In light of this case, I understand the rule of our Court to be that an increase of sentence on retrial is unconstitutional unless justification for the increase appears in the record. 4 Admittedly, there are cases to the opposite effect, including the much criticized Stroud v. United States, 1919, 251 U.S. 15 , 40 S.Ct. 50 , 64 L.Ed. 103 ; but cases supporting the invalidity of an increased sentence or denial of credit on retrial where the original sentence has been set aside by collateral attack are numerous, recent, and impeccably reasoned. To me the trend is clear and correct. Moreover, I find strong intimations that the Supreme Court would approve this trend in United States v. Ewell, 1966, 383 U.S. 116 , 86 S.Ct. 773 , 15 L.Ed.2d 627 , and in Green v. United States, 1957, 355 U.S. 184 , 78 S.Ct. 221 , 2 L.Ed.2d 199 , 61 A.L.R.2d 1119 . My conclusion is that the new indictment on which the State has twice attempted to retry Grundstrom is invalid under existing law and should be so declared by this Court. To avoid this decision on the ground that the problem will either vanish or be resolved by another court on another day is surely not required by principles of comity. 5
. While I do not find the possibility of acquittal to be a compelling reason for avoiding the constitutional issue, I would feel differently about this case if I were confident that Texas law provided Grundstrom with a procedure for testing the constitutionality of a new indictment pri- or to trial. The State suggests that Ex parte Sanford, 163 Tex.Cr.R. 160 , 289 S.W.2d 776 (1956) affords such an avenue of relief, but in that case the court held that habeas corpus would lie after indictment and prior to trial where the defendant is charged under a void statute. Such would not be the case here. Moreover, Ex parte Oliver, 374 S.W.2d 894 (Tex.Crim.App.1964) seems to foreclose the use of habeas corpus after indictment and prior to trial in the usual case where an indictment is regularly presented in a court of competent jurisdiction and there is a valid law under which the prosecution can be maintained.
. The majority place primary reliance on Clarke v. Grimes, 5th Cir. 1967, 374 F.2d 550 , and Edge v. Wainwright, 5th Cir. 1965, 347 F.2d 190 , but at the time each of those cases was decided, the relevant constitutional issue was unresolved at the federal level. Hence, initial determination of the issue was properly left to the state forum. Clarke v. Grimes involved the question of whether jurors in a capital case who have scruples about the death penalty can be excused for cause. Edge v. Wainwright involved credit for time served under a void sentence, but the case was decided before recent developments in this area.
I do not read State of Texas v. Payton, 5th Cir. 1968, 390 F.2d 261 to require the result reached by the majority. To repeat, in the instant case the facts and law are clear.
. Patton and other cases in the increase-of-sentence area are discussed in Castle v. United States, 5th Cir. 1968, 399 F.2d 642 [August 12, 1968]. The Court did not expressly approve Patton as it was held to be inapplicable. We concluded that the Appellant Castle simply had not been subjected to an increase of sentence when he was resentenced by the district court.
. Other courts have taken the qualified position that a trial judge can increase the original sentence on retrial only if he provides a rational predicate for the increase either by articulating his reasons or by including in the record the data on which he relied. United States v. White, 7th Cir. 1967, 382 F.2d 445, 450 ; Patton v. North Carolina, W.D.N.C. 1966, 256 F.Supp. 225 . Another view is that unless the defendant can establish personal hostility on the part of the sentencing judge there is no basis for disallowing an increase. Shear v. Boles, N.D.W.Va.1967, 263 F.Supp. 855 . The qualification to Patton adopted by this Court in Simpson v. Rice, 5th Cir. 1968, 396 F.2d 499 would not affect the instant case because the new indictment against Grundstrom makes a life sentence mandatory in the event he is convicted by a jury. Thus, the qualification that a trial judge has discretion to increase a sentence under certain circumstances is inapplicable.
. Since the invalidity of the new indictment is so apparent as to justify a decision to that effect at this stage, I regard it as wasteful and harmful to Grundstrom to force him to trial on it. Harm to him will be minimal if he is acquitted or even if the Texas Court of Criminal Appeals recognizes the invalidity of the new indictment on direct appeal but will assume alarming proportions if he is denied relief by state courts and forced to resort once again to federal courts sitting in habeas corpus. In this regard, I note that the odds are somewhat against appellee if he is convicted, for the Texas Court of Criminal Appeals held in 1966 that it was without power to give credit for time served under a sentence vacated on collateral attack. Ex parte Ferrell, 406 S.W.2d 440, 441 (Tex.Crim.App.1966).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9454093. Public record. Not legal advice.