Brief for Respondent — North Carolina v. Rice

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SRARY ©

SUPREME COURT, 0 S. Supreme Court, U.S.

ea : ‘FILED

yy 17 un

k. ROBERT SEAVER, CLERK }

In THE

_ Supreme Court of the United States 5

3 TERM, 1970

No. 4025 20-17 |

NortH CAROLIIxA,

Pétitioner |

—v.— .

_ Wayne Rice,

<2 : Respondent

On Writ of Cottiorari To The United States Court of Ap- .

peals For The Fourth Oireuit.

1 .

BRIEF FOR RESPONDENT

WLAN W. Van Atsrene—— |

‘Counsel Assigned by the

Court of Appeals.

Duke University Law School

Durham, North Carolina 27706

“1. The Decision Below Is Correct and Controle by this Cour

Decision in Nowrn Canouswa v. Peance. 5

ee „ rr

by Jury Denied Him Due Process of Law 5 17

Conelusion Vey N 10

TABLE OF CITATIONS

| Cases"

Baldwin v. New York, 399 U.S, 66 (1970) | . 1. 17

Cherry v. Maryland, No. 244 (Md. Ct. of Spee. App. May d, 107% 6

nr

preme Ct., April 6, 1971) 4 -

DeJoseph v. Connecticut, 3 Conn. Cir. oth, 9 ASE, Hh OOH

cert. denied, 389 U.S. 902 (1967)... 15

Duncan v. Louisiana, 391 U.S. 145 (1068) ...... ' ait

Gideon v. Wainwright, 372 U.S. 345 (1963)... „„

w

gg on heel alae inde

Wr United States; 273 US. 62, 293 (1926) (dissenting opinion) 11

North Carolina v. Alford, 91 8. Ct. 160 (1970)... WD

North Carolina v. Pearce, 305 U.S. 711 (1909).....................: 4

a

Patterson v. Warden, 372 U.S. 776 (106) 8 14

* — nn ä

905 (1966) 6

Rice v. North Carolina, 434 F.2d 297 , 1

State v. Morris, 275 N.C. 50, 165 8. E. 24 245 (1965) 2

State v. Sparrow, 276 N.C. 499, 173 S.E.2d 807 (1970) 8

State v. Spencer, 276 N.C. 335, 173 8. K 24 765 (1970) 4

Torrence v. Henry, 304 F. Supp. 725 (E. b. . C. 1969) 9

United States v. Jackson, 390 U.S. 570, 581 (1968) 18, 19°

United States v. Wiley, 278 F.2d 500 (7th Cir.) 6

Winters v. Beck, 239 Ark. 1151, 307 8.W.2d 364 (1966) cert denied,

W | 4

; . ,

e Mex. Rev. Stat. Ann. 36-15-3

N.COS. $7-728

N.C.G.8. § 15-1771

N.C.G.8. §§ 20-138, 20-179

ner. Code Wash. Ann. 3.50410 1

Other Authorities

Aplin, Sentence Increases om Retrial after North’Carolina v. Pearce,

39 U. Cin. Law Rev. 427 (1970) 6

Christie and Pye, Prerumptions and Asvumptions in the Criminal Law:

Another View, 1970 Duke Law J. 919 19

Crumpler, Fred G., from Judicial Officials, 1 Report to

the Committee on Im and Expediting the Administration of

Justice in North Carolina of the North Carolina Bar Association,”

Studies for the Court Study Committee 1956-1958, vol. I, 22 2

Davis, Roy W., “Courts Commission: A Report on the Courts and the

Court Business of the 28th Judicial District,” Studies for the Court

Commission, vol. 2, no. 83 (Nov. 1964) ; 2

in THE

Supreme Court of the United States

No. 1325

Norra Cazotana, 8

Petitioner

Wayne Rice,

Respondent

On Certiorari From The United States Court of Appeals

For The Fourth Circuit.

Opinion Below

The opinion of the United States Court of Appeals for

the Fourth Circuit is reported at 434 F. 2d 297 (1970).

Jurisdiction

Jurisdictional requirements arising under 28 U.S.C.

§ 1254(1) are satisfied in that review of this civil case was

granted on April 5, 1970, following petition of one of the

parties for a writ of certiorari after rendition of judgment

by the court of appeals.

Did the court below conclude that a state denies

due process of law when it an unexplained harsher

Statement of the Case

On Jyly 19, 1968, Mr. Wayne Rice was tried in the Gen-

eral County Court of Buncombe County, North Carolina,

upon his plea of not guilty to a charge of driving while in-

toxicated. Although the alleged offense was subject to pun-

ishment by two years in prison (see N. C. G. S. 55 20-138,

20-179 [since amended]), the offense was nonetheless de-

scribed as a mere misdemeanor' under North Carolina

law. (See State v. Morris, 275 N.C. 50, 165 S. E. 2d 245

[1965]). Accordingly, under North Carolina law exclusive

original trial jurisdiction rested solely with the General

County Court,“ i.e., Mr. Rice had no election to be tried in

a Superior Court and was compelled by law to submit to the

jurisdiction of the General County Court in the first in-

stance. |. -

As acknowledged in Petitioner’s Brief (p. 8), a defen-

dant subjected to trial in a General County Court has no

right to trial by jury nor does that Court make any record

of the trial proceedings respecting the voluntariness of

pleas, admissibility of evidence, or any other matter. Addi-

tionally, the State makes no provision for court assignment

of counsel to represent indigent defendants in this court nor

does it require that the judge, elected from the county,

‘possess any legal training or experience whatever.“ Thus,

N. C. d.. § 7-728: ‘‘The general county court shall have exclusive original

jurisdiction of all * * criminal offenses committed in the below the

grade of a felony as now defined by law.. a

The subconstitutional character of the general county court is reviewed

3 N

although Wayne Rice was charged with an offense pun-

ishable by two years in prison —an offense which by federal

standards is a felony, and by any standards is well above

the level of petty offense—he was compelled to stand trial

before a subconstitutional court lacking the essential rudi-

ments of due process solely as a consequence of the state’s —

determination to try him there without choice of his own.

| Found guilty by the judge of the General County Court,

Wayne Rice was sentenced to nine months in prison sus-

pended upon payment of a $100 fine plus costs. This was

Mr. Rice’s ‘first conviction for driving while intoxicated.

Shortly following hit conviction, ‘‘exercising the only av-

enue afforded to review his conviction,’ Mr. Rice appealed

to the Buncombe County Superior Court. Two weeks later,

on August 2, 1968, he was tried again in that Court and

again found guilty, albeit in this instance the determination

was made by a jury and Mr. Rice was represented by court-

appointed counsel. The presiding judge of the Superior

Court then proceeded to impose upon Mr. Rice an active

sentence of two years in prison—the maximum allowed by

law.

The judge’s reasons for imposing this ‘remarkably

harsher sentence nowhere appear in the record. Rather,

„the record reveals nothing which warrants the increased

punishment.’ All that appears is that as a result of ex-

ercising his sole statutory right to appeal, that providing

for trial de novo with sentence to be imposed by the-court,

Wayne Rice found himself sentenced to two years in prison

ments from Judicial Officials, a Report to the Committee on Improving and

Ne Oe ee cane, Goan, aaa a es

’ olina Bar ‘Association,’’ Studies for the Court Study Committee 1956-1958,

4

whereas, had he been willing to forego his only access for

review of any kind of his original conviction, he would have

had to pay a $100 fine plus costs. Reviewing this case in

light of the Supreme Court's decision in North Carolina v.

Pearce, 395 U.S. 711 (1969), the United States Court of

Appeals for the Fourth Judicial Circuit observed:

[Wie see again the more drastic sentence on the second trial as a

denial of Federal due process, in that by discouragement it im-

pinges upon the State-given appeal.

— Ries v. North Carolina, 434 F.2d at 300.

Concluding that injurious consequences might well in-

here in the uncorrected record of this harsher sentence

which the Court of Appeals held to constitute a violation

of due process, it ordered that the record be expunged.

Thereafter, the State filed timely petition for a writ of cer-

tiorari which this Court granted on April 5, 1971.

In brief, the case reflects the following factual and ge-

neric circumstances for determining the proper application

of this Court 's decision in North Carolina v. Pearce:

a) The court before which the defendant was first placed in

jeopardy was not a court whose jurisdiction was confined to the

disposition of petty offenses or minor misdemeanors; it was, rather,

a court of primary criminal jurisdiction over all offenses subject

to punishment by as long as two years in prison.

b) The aceused makes no choice whatever to be tried in this

court rather than in some other. The accused is not permitted

by law to bypass this court, he makes no election whatever as to

whether he might instead be tried in a court of due process, and

he is wholly without recourse to any other court until after being

sentenced by this court.

¢) Within this General County Court, the accused is subjected

to trial without benefit of a jury; there are no transcribed pro-

ceedings respecting the voluntariness of pleas or circumstances

respecting the admissibility of evidence; though he may be indigent

there is no provision for appointment of counsel; the presiding

judge need have no training or experience in the law; and all that

is recorded is the charge, the plea, the finding of guilt, and the

sentence.

a) The sole recourse of the accused from any conviction found -

or sentence imposed by this court is exclusively by way of appeal

5

for retrial de novo in a Superior Court; by no other means does

the state afford any review of the consequences of his conviction.

e) Sentence subsequently imposed in the event the accused pur-

sues his only recourse for review and correction of his original

convietion may be freely extended to its statutory maximum in

the sole decision of the judge of the court in which that appeal is

taken, i. e., the jury is not involved.

f) No reason whatever is required to be given of recorded in

explanation of an extended sentence thus imposed with the con-

sequence that the harsher sentence is itself functionally immune

from meaningful constitutional review.

Argument

L The Decision Below Is Correct and Controlled by this

Court’s Decision in North Carolina v. Pearce.

The imposition upon Rice of a harsher sentence after re-

trial for the same offense was a clear violation of due

process principles confirmed by this Court in North Carolina

v. Pearce, 395 U.S. 711 (1969). The issue presented in

Pearce, as stated by this Court, is, exactly the same as the

issue identically resolved by the court below in this case:

When at the behest of the defendant a criminal conviction has

been set aside and a new trial ordered, to what extent does the

Constitution limit the imposition of a harsher sentence after con-

vietion upon *

395 US. "711, 713.

In answer to that question, this Court declared:

[S]ince the fear of . . . vindictiveness may constitutionally deter

a defendant's exercise of the right to appeal or collaterally attack

his first conviction, Due process. . . requires that a defendant

* freed of spprehension of such a —— motivation.

395 U.S. ‘Ti, 725.

It warrants emphasis that the Court was explicitly con-

cerned with the discouraging effects of the accused’s reason-

able fears and apprehensions of retaliatory harsher sen-

tencing upon his statutory right of appeal, and not with the

rare instance where the fact of retaliatory sentencing is

betrayed on the face of the recofdy (Cf. the separate Opin-

ion by Mr. Justice Black, 395 U.S. at 739-40. See United

Pon on eer wre

6

States v. Wiley, 278 F. 2d 500. [7th Cir. ]). Indeed, the

Court specifically footnoted in Pearce a poignant instance

that such fear of vindictivé harsher sentencing had played.

in throttling, the right to appeal (395 U.S. 725 at note 20),

and it acknowledged the evidence of frequent increased sen-

tences in North Carolina itself as providing ground for an

appellant’s anxiety. See also Aplin, Sentence Increases on

Retrial after North Carolina v. Pearce, 39 U. Cin. Law Rev.

427 (1970). Accordingly, this Court held in Pearce that:

[Whenever a judge imposgs 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. °

ö 395 U.S. 711, 726.

The State in this case failed to produce any record what-

ever im explanation of the doubly severe harsher sentence

imposed upon the Respondent by the judge who sentenced

him following retrial. There is, of course, nothing whatever

in the Superior Court record to provide the slightest basis

for any inference that the escalated punishment could pos-

sibly have been founded on ‘‘objective information concern-

ing identifiable conduetꝰ on Mr. Rice’s part during the brief

two-week interval between the first and second sentences.

Accordingly, the court below readily concluded that the

harsher sentence was imposed in violation of the Due

Process Clause of the Fourteenth Amendment. 5

Indeed, for the Fourth Circuit Court of Appeals to have

done otherwise would not only have been to recede from

Pearce, which the fourth circuit had itself decided and

which it had anticipated in Patton v. North Carolina, 381

F. 2d 636 (1967), cert. denied, 390 U.S. 905 (1968), it would

have invited an extraordinarily ironic wholesale circum-

vention of Pearce by the several states within its jurisdic-

tion: to limit Pearce short of the right of appeal for retrial

7

de novo of criminal charges punishable by substantial prison

terms would have explicitly encouraged each state to under-

mine the fourteenth amendment by processing serious

criminal charges in subconstitutional courts while limiting

access. to corrective processes to those defendants with

sufficient fortitude to brave the risk of unexaminable harsher |

sentences on appeal for retrial de novo.

Respectfully, this is in fact the question now before this

Court as well: either to affirm the decision below or to

recede from Pearce, and thereby to provide an encourage-

ment for other states to commit the trial of non-pefty

criminal charges to stripped-down, subconstitutional courts

lacking the rudiments of due pracess, while systematically

discouraging appeals through the implicit threat of essen-

tially unreviewable, retaliatory harsher sentencing asso-

ciated with the accused’s sole avenue of lle appeal

for retrial de novo.

It is significant to note in this respect that as his pre-

decessor declined to join in Florida’s plea that Minnesota’

associate itself with Florida’s position in Gideon v. Wain-

wright, 372 U.S. 335 (1963), the Attorney General of Min-

nesota has similarly declined to embrace North Carolina’s

position in this case as well.“ Noting first that harsher

sentencing following any trial de novo has been abandoned

as a matter of judicial policy in Minnesota’s largest metro-

politan county since 1968, and that ‘‘the statistics for 1970

. reflect that no flood of appeals has occurred,“ the Min-

nesota Attorney General replied to the North Carolina At-

torney General in response to the latter’s solicitation for a

brief amicus curiae:

PFF

teneing process to effect ee in the court calendar.

PSA ORE A A LPR Le CROP

as a matter of constitutional mandate, deterring appeals by use

of heavier sentences would seem to run .afoul of North Carolina ;

v. Pearce, 395 U.. 711 (1969).

+The Attoray General's letter to the North Carolina Attorney Genera i

. eS 20 of this Brief.

estan of the doubts I have expressed, and because our statistics

do not provide support for your position, it does not appar that

we will be able to * it.

Very truly 2 3

WaRREN SPANNAUS -

— General

Identically, and again as a matter of judicial 8 the

Supreme Court of New Jersey has moved to forbid harsher

sentencing following appeal from state municipal courts

for retrial de novo: rg

[W]e are satisfied that as matter of policy and apart from con-

stitutional compulsion, a defendant who appeals from a municipal

court should not risk a greater sentence. In reaching that con-

clusion, we are mindful of the reason for a trial de novo in these

matters. The Legislature long ago provided for a retrial at the

county level because of the weakness inherent in the system of local

_courts whose judges were locally appointed, served part-time, and

frequently were not even members of the Bar. * * * Although the

‘municipal court of today is much improved over its ancestors, the

structure remains unsound. * * * We intend no reflection. upon the.

many judges of the municipal courts who work hard and con-

scientiously notwithstanding the shortcomings of the system itself.

Rather we recognize that, so long as this system endures, the need

‘remains to afford the litigant, frequently a stranger to the locality,

the opportunity to seek a redetermination by a court at a higher

level without the risk of.a larger penalty.

De Bonis v. State, 9 Crim. LaW Rptr. 2109

(1971) (New Jersey Supreme Ct., April 8, 1971)

Having no similar power in this case directly to revise

the policy of the North Carolina Supreme Court which has

adamantly declined to restrict harsher. sentencing follow-

ing appeals for retrial de novo in North Carolina’ (State

v. Spencer, 276 N.C. 335, 173 ‘S.E.2d 765 [1970] ;. State v.

Sparrow, 276 N.C. 499, 173 S.E.2d $97 [1970]), the Fourth

Cireuit Court of Appeals correctly concluded that ‘the

command of the fourteents amendment itself must still con-

trol:

8

* ~

5

On the strength of Pearce, we again see the more drastie sentence

on the second trial as a denial of Federal due process, in in that by

e it impinges upon the n appeal. si es

ö . 434 F.2d at 300.

«

The a fortiori application, of Pésivs to Rice had already |

been anticipated in Torrance v. Henry, 304 F. Supp. 725

(E.D.N.C. 1969). Like Rice, Torrance arose on petition for

a writ of habeas corpus in behalf of a North Carolina pris-

oner who, after being convicted in an inferior court and

appealing to the Superior Court, was tried de novo, con-

victed again of the same offense, and given a heavier sen-

tence than had been imposed by 'the inferior court. In his

opinion, Chief Judge Butler observed:

“Applying the reasoning | underlying Pearce, we perceive ro

material distinction between ase where the defendant’s original

conviction has been set aside, whether by appeal or collateral pro-

ceedings, and a new trial ordered, and a case where the defendant —

has appealed his original conviction, and received a trial de novo.

In either case a harsher sentence at retrial-is a violation of due

process, unless justified by the subsequent events requirement as

enunciated in Pearce.

30⁴ v. Supp. 725, 726.

Similarly, the application of Pearce to all appeals for

retrial de novo has been applied by ‘state court decision in

Maryland, Cherry v. Maryland, No. 244 (Md. Ct. of Spec.

App., May 6, 1970), and, apart from the parallel state court

decisions already noted. from New Jersey and Minnesota,

even that minority of states which retain the basic arrange-

ment of appeals for retrial de novo find no uniform need

for the retention of this in terrorem device. For instance,

the applicable provision in New Mexico flatly forbids an

increase in sentence for any reason whatever:

New Mer. ‘Rev. Stat.. Ann. 36-15-3: Appeals Distriet court pro-

ceedings. — A. Appeals from the magistrate court shall be deter-

mined by trial de novo in the distriet court, and all laws, rules

and regulations governing the magistrate court shall govern the

trial in the distriet court.

„*

10

B. (2) in a criminal action, the district court shall enter. judgment

imposing the same or a lesser penalty as that imposed in the

, magistrate court in the action. .

‘(Emphasis added.)

In eas as such as Washington, the pos-

sibility of an extended sentence following appeal and retrial.

de novo is significantly restricted to 4 maximum penalty -

associated only with petty offenses: „ ‘

Rev, Code Wash. Ann. 3.50.410 : Superior court trial de novo—Jury

trial—Maximum punishment—Appeal to supreme court.

In the superior court the trial shall be de novo. If the

defendant be convicted in the superior court, he shall be sentenced

the superior court judge with a fine of not to exceed five

hundred dollars or imprisonment in the city jail not to exceed

ninety days, or by. both such fine and imprisonment; Appeals shall

lie to the supreme court of the state of Washington as in other

criminal eases in the superior court.

(Emphasis added.)

Gn to North Carolina’s argument in this, case,

therefore, the great majority of state practices will be wholly

unaffected by affirmance of the decision below. The ma-

jority of states do not utilize appeals for retrial de novo at

all and are otherwise already bound by Pearce itself. Of

the minority of states that do utilize appeals for retrial de

novo, several have already moved as a matter of judicial

policy to forbid the imposition of harsher sentence upon re-

trial, the legislature of a1 ther has forbidden the practice

by statute, and in still other states the possibility of a-

harsher sentence is distinguishably limited to sentences

following retrials of purely petty offenses.

North Carolina nonetheless contends that Pearce ought

not be followed in this case, in large part from its concern

that more appeals might then be taken from the judgments

of its subconstitutional courts than are currently carried

forward by the smller number of defendants now willing

to risk the peril of an unexaminable heavier sentence. (See

Petitioner’s Brief at p. 12.) One sufficient answer to this

argument is simply to emphasize again the unsupported

11

and wholly conjectural nature of its elaim, the fact that there

is no evidence of any such tide of appeals where harsher sen-

teneing recently has been prohibited elsewhere (e. ., Min-

. nesota since 1968, New Mexico since 1968), and the fact that

the vast majority of states do not use subconstitutional

courts at all for the trial of criminal cases above the level of

petty offenses. So draconian an economy has evidently

seemed neither necessary nor appropriate to any of the

great majority of states in spite of the common and very real

problem of congestion in their courts. .

A second and related observation is the remembrance

that the fourteenth amendment does not succumb to the

inconveniences of compliance. To paraphrase Mr. Justice

Brandeis, the guarantee of due process exists- not to

promote efficiency but to preclude the exercise of arbitrary

power.’’ Myers v. United States, 272 U.S. 52, 293 (1926)

- (dissenting Opinion). It is unquestionable that we are here

concerned with arbitrary power, moreover, since the Pearce ;

rule limits the authority to impose harsher sentences spe-

cifically by a standard which, when observed, only then

makes it possible subsequently to determine whether the

harsher sentence was improperly thotivated :

In 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 ob-

jective information concerning identifiable conduct on the part

of the defendant occurring after the time of the original sen-

tencing 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 re-

viewed on appeal.

— Faues at 720 (Emphasis added.)

—

A rule more permissive than Pearce by any degree would

necessarily undermine its concern for due process by pro-

viding latitude for arbitrary harsher sentences beyond dis-

covery by subsequent review, and correspondingly dis-

couraging the accused in the exercise of his statutory right

of appeal. This specific function of the explicitness of the

,

12 a

Pearce rule,to curtail the risk of arbitrary power in the use

of the sentencing power so far as it affects rights of appeal

has been acknowledged ager, more recenti

| [D]ue process forbids the States from adopting procedures that

would defeat the institution of federal judicial review. * [D]ue

‘process of law is denied by state procedural mechanisms that allow

for the exercise of arbitrary power without providing any means

whereby arbitrary action may be reviewed or corrected. * * If there

is any way in which these propositions must be qualified, it is only

that in some circumstances the impossibility of certain procedures

may be sufficient. to permit state power to bé exercised notwith-

standing their absence.

9 6 *

Even if it be assumed that juries are incapable of making such

explanations, we have already held that such inability does not

_. exeuse the State from providing a sentencing process that provides

reasons for the decisions reached if those reasons are otherwise re-

quired. North Carolina v. Pearce, 395 U.S. 711, 726 (1969).

McGautha v. California, 39. U.S. Law WEEE 4529,

4549, 4554 (1971) (dissenting Opinion)

*

Thus, when the state commits exclusive original trial juris-

diction of offenses punishable by two years in prison to a

subconstitutional court, with access to ‘limited solely

to appeal for retrial de novo and sentence imposed by the

judge, there can be no doubt.either of the feasibility or the

necessity of applying the Pearce rule as a limitation to

avoid the risk and the * effects of the risk of

arbitrary harsher sentencing.

Finally, it is respectfufly submitted that to the very

extent that North Carolina means what it has declared in

its Brief—that the maintendnce of a system imposing the

unrestricted risk of harsher Sentencing upon all those taking

an appeal for retrial de novo is essential to its judicial order

precisely because it dtscourages appeals (and not in spite

of the implicit tendency of such a system so to discourage

appeals) —the State in essence is claiming a prerogative to

entertain precisely that policy which the Court has already

declared to be ere by the Constitution :

13

A court is “without right to.. put a Osco on an appeal. A de-

fendant’s exercise of a right of appeal must be free and un-

fettered. . [I]t is unfair to use the great power given to the

court to determine sentence to place a defendant, in the dilemma of

‘making an unfree choice.”

19 Pearce at 724.

*

To the extent that appeals for retrial de novo Werbe

may not have been taken from the subconstitutional courts

of North Carolina solely from anxiety of the accused that

a functionally unreviewable harsher sentence might sub-

sequently Have been imposed, the indiscriminate discourage-

nient of those appeals which discouragement the State now

‘secks to advance as its principal argument to this Court is

‘pr ecisely the appalling condition which the explicit *

in Pearce was surely meant to end.

Indeed, the case now before the Court is distinguishable

from. Pearce only to the extent that it is more aggravated

than Pearce. There can be no question that ‘‘apprehension

of a retaliatory motive’’ (Id. at 725) respecting sentencing

after retrial de novo must as readily discourage County

’ Court. defendants from seeking relief on appeal as in the

case of those originally tried in the Superior Court. But

though the degree of apprehension must be at least as great

in the one case as in the other, the average defendant’s

predicament in the case of one first convicted and sen-

tenced in a General County Court is doubtless more often

genuine than in the case of one first convicted and sen-

tenced in a Superior Court: the less professional and less

circumspect operation of the General County Court is itself

much more conducive to the probability of serious error in

the proceedings of that Court than is likely in a Superior .

Court. As a consequence, the uniform degree of discour-

agement to appeal applicable to both cases must tend in

fact to yield a greater proportion of unfairness to those

subjected to trial in the subconstitutional conditions of the

General County Court, than in the circumstances of. the

Pearce case itself. i

Indeed, were the larger issue otherwise aporopeiatdly

before this Court, Respondent would not hesitate to suggest

—

2

‘ e * ‘ .

.

14

that the use of subconstitutional courts with. exclusive | orig-

‘inal jurisdiction over anything more substantial than purely

petty offenses is itself a practice violative of due process,

by no means adequately redeemed simply by permitting

the accused thereafter to appeal for a fundamentally fair

trial as a matter of right. But in any case, for the State

additionally to hobble the statutory right of the accused

to appeal from such a predicament with the further dis-

couragement of subjecting him to the risk of an essentially

unreviewable harsher sentence should he be so bold as to

exercise that right, is clearly intolerable. On principle and

from 2 fair factual comparison with the less alarming

situation in Pearce itself, it is clear that the decision of the

Fourth Circuit Court of Appeals in this ease can only be .

affirmed. a ;

0 In reaching this conclusion as Respondent respectfully _..

submits it must, this Court need not be indifferent to several \

concerns otherwise appropriately reflected in Petitioner’s i

Brief (and partly shared by the amicus briefs of Maine and

Utah). First, this Court may, as it deems appropriate, limit

its decision to cases such as this one in which offenses pun-

ishable by more than six months in prison are originally subC-

ject to trial solely in courts in which essential due process

safeguards are not provided (e.g., courts without trial

transcripts recording the voluntariness of pleas, admissi-

bility of evidence, etc.; courts in which trial by jury is

denied; courts unauthorized to @ppoint counsel in behalf

— -of unrepresented indigents). Accordingly, any state so de-

siring would remain at liberty still to utilize a dual trial

court system with respect to purely petty offenses, free from

concern that the Pearce restriction limiting harsher sen- }

tencing upon retrial de ‘novo might otherwise lead to a

substantial increase in appeals by relieving even petty:

offenders of their anxiety of retaliatory harsher sentences.

Such a distinction finds some support in othed decisions

of this Court and yet keeps at least min faith with

Pearce. (Compare Gideon v. Wainwrigh 11572 U.S. 335

[1963] and Patterson v. Warden, 372 U.S. 776 [1963] with

Winters v. Beck, 239 Ark. 1151, 397 S. W. 2d 364 [1966],

15

*

cert. denied, 385 U.S. 907 (1966) and De Joseph v. Con-

necticut, 3 Conn. Cir. 624, 222 A. 2d 752, 771 (1966), cert.

denied, 389 U.S. 902 (1967). See also Baldwin v. New York,

399 U.S. 66. [1970] [‘‘no offense can be deemed ‘petty’ for

purposes of the right to trial by jury where imprisonment

for more than six months is authorized.) (Emphasis

added.)

Second, assuming—as Respondent respectfully believes

is more in keeping with Pearce (and as the Supreme Court

of New Jersey has otherwise found essential and as New

Mexico provides by statute )—that the constitutional limita-

tion on harsher sentencing applies irrespective of the na-

ture of the offense first required to be submitted to trial

jn an inferior court with sole access for review restricted

to an appeal with retrial de novo, this Court may nonethe- |

less take pains to correct the mfStaken impression of North

Carolina that such an application of Pearce would either

force its inferior courts to make full trial records or, al-

ternatively, preclude a Superior Court from ever increasing

the sentence following trial de novo. See Petitioner's Brief

at pp. 8-9.) It need only be pointed out that under Pearce,

the presence or absence of à trial transcript from the first

trial is utterly irrelevant as to whether a subsequent judge

may impose a harsher sentence. Rather, a harsher sen-

tence may be imposed only if

based upon objective information concerning identiflable conduct

on the Part of the defendant oceurring _ the time of the orig- f°

inal sentencing . °

* Pearce at 725. * added ay

As a consequence, no point would be served in this regard |

were the State to add to the expense of operati Fits sub-

constitutional courts by now providing for a full record of

the trial, nor would any advantage thereby be gained so far

as the latitude of subsequent harsher sentencing is con-

cerned. (Correspondingly, it is also clear that application

of the Pearce rule.to sentences followed by appeal for re-

trial de novo would not in the least induce any change of

practice among states providing for no full record of ne

16

original trial, i. e., the ‘‘cost’’ of applying Pearce to retrials

de nevo is simply not as great as the alleged concern of

Petitioner would otherwise. imply.)

Third, the Court may appropriately point out that the

state is free in the alternative simply to upgrade its in-

feriédr courts with jurisdiction above the level of petty

offenses, so to provide a full transcript of all proceedin

therein, and then to restrict the defendant to right of appeal

on alleged errors of law alone. By such an adjustment, the

state may wholly dispel its concern that the present stat-

utory right to retrial de novo may unnecessarily invite ap-

peals in cases where there may in fact have been no error.

Finally, the Court could find that it is only in cases where

the accused has no choice respecting the character of state

court in-which he is first submitted to trial that Pearce must

necessarily apply to protect him from fear of an unexam-

inable harsher sentence following an appeal and retrial de

novo. Were the defendant given a choice in the first place,

and were he freely to exercise it to elect the informality of

a subconstitutional court with absolute right to appeal for

retrial de novo in the more formal court in which he could

have chosen to be tried originally, then it may indeed be’

reasonable to treat the case as though the late has truly

been wiped clean and to proceed upon yetrial without ref-

erence to whatever sentence may have been imposed by the

inferior court. The obvious reasons for this suggested dis-

tinction are twofold. First, as the defendant may originally

forbear -from requesting trial in the superior court prin-

cipally i in hope of more lenient treatment under the informal

auspices of the inferior court, it may not be unjust that

should he subsequently appeal to the superior court he

should submit to its judgment on the same footing as an-

other originally electing to be tried there. Second, to the

extent that the superior court judges are understood to have

an interest in maintaining the usefulness of inferior courts

as courts of first instance, there is markedly less reason for

a defendant to fear that his willingness to be tried in such

a court so long as it is buttressed with a right to appeal for

retrial de novo should he feel himself to have been un-

justly convicted or sentenced, will be discouraged through

7

17

the use of unexaminable harsher sentences on ‘appeal. In >

this respect, i. e., cases arising in any jurisdiction providing

an election to the defendant for trial in the superior court

or trial in a-subconstitutional court with. right of appeal for

retrial de novo in the superior court, there is indeed neither

reason for the defendant to fear that the superior courts

will be motivated by improper considerations nor reason to

’ discourage whatever judicial economy the state“ may feel

is to be derived from such an arrangement. a

North Carolina does not, of course, provide for any such

election by the aceused nor did it do so for Wayne Rice.

Rather, it forces an accused through trial and sentence in a

subconstitutional court intrinsically prone to error, there-

after intimidating him by an exclusive de novo system which

he knows to contain a built-in emphasis on the discourage-

ment of any appeal from the subconstitutional court. This

system is one which advises him that his only recourse is by

way of appeal for retrial de novo subject to the power of

the presiding judge to levy upon him an even harsher sen-

tence functionally immune from further examination. The

depressing impairment of fourteenth amendment rights un-

der this system is an extreme and indefensible condition

operating to deprive the accused of his liberty without due

process of law. The Fourth Circuit Court of Appeals prop-

erly held it to be so, correctly relying upon this Court’s de-

cision’ in Pearce. The decision of that court should be

affirmed, observing at the same time that the decision takes

away nothing whatever from the state’s capacity to reconcile

N with efficiency in the administration of its laws.

3 N. The Restriction of Respondent’s Constitutional Right —

to Trial by Jury Denied Him Due Process of Law.

It is well established by settled decisions of this Court

that Wayne Rice, having been charged with an offense pun-

- jishable by more than one year in prison, had an absolute

right to trial by jury. Baldwin v. New York, 399 U.S. 66

(1970); Duncan v. Louisiana, 391 U.S. 145 (1968). He was

clearly denied that — in that he was compelled to sub-

7

| 18.

5 11 to trial upon his plea of not guilty without right to ent

his guilt or innocence, determined by a jury. The state

correctly concedes in its brief (at p. 8) that jury trial is not.

provided in a General County Court and, as previously

noted, the accused was given no choice to be tried in any

court which did provide · for that, right. A fortiori, the de-

cision below should be affirmed on this basis alone.

North Carolina may contend that the Respondent was

not. utterly denied any access to trial by j jury by suggesting

that although he was indeed placed i in jeopardy of punish-

ment exceéding a year in prison ‘in a proceeding denying

that right, he remained free thereafter to seek retrial de

novo with the benefit of trial by jury. .The contention must

fail, however, for each of two reasons. First, there is simply

no authority whatever for the curious view that the right

to trial by jury may be postponed until after jeopardy has

attached, trial has proceeded through verdict, and sentence

has been imposed l So to disparage a constitutional tight is

- wholly inconsistent with the function of its explicit guaran-

tee. So to sanction its postponement is to hypothecate the

Bill of: Rights, to hobble the accused, and to subject him

to the ordeal of preliminary trial the harassment of which

he is powerless to avoid. It is, with all respect, an Alice

in Wonderland world in which the State, as the Queen of

Hearts, declares: Sentence first, trial by j jury later!“

Second, the contention must fail in any case because of

the price which the state attaches to the defendant’s post:

- poned right to trial y jury—the price that he must subject

himself to the. risk of an unexplained and unexaminable

bharsher sentence should he now elect to exercise that right:

The inevitable effect of any such provision is, of cousre, * * * to ;

deter exercise of the Sixth Amendment right to demand a jury

trial.

United States v. Jackson,

390 US. 570, 581 C1888).

It is of no e that the Piet of this price upon the

right to jury trial may not be the purpose of the state’s

scheme. It is enough that the price is there, and that the

Q

defendant is made to pay it. United States v. ann

supra.

Nor is: there any similarity F the defendant’s

predicament i in this case and the Court’s decision in North

Carolina v. Alford, 91 S. Ct. 160 (1970), with respect to

guilty plea bargaining. The lack of similarity arises 8

the fact that here there is no bargain. Compare Christie

and Pye, Presumptions and Assumptions in the Criminal

Law: Another View, 1970 Duke Law J. 919. Had Mr. Ride

_ pleaded guilty -in the General County Court, upon advice

of counsel and due record made 80 to assure adequate re-

view of the voluntariness of his plea entered pursuant

an understanding that he was foreclosing jury trial in ex-

change for the hope of leniency, Alford would of course be

on point. But Mr. Rice made no such plea, he entertained

no such design, he stood upon his claim of innocence as he

had every right to do, and nonetheless he was subjected to

trial without jury. Again, had Mr. Rice a right of election,

either to submit himself to the General County Court with-

out jury but with hope of more lenient treatment than he

| might anticipate by electing trial by jury in superior court,

er to submit to trial by jury in superior court, Alford might

be relevant. He did not have any such choice, however, for

the law of North Carolina gave him none. Alford is there-

fore wholly inapposite, and the decision i is clearly controlled

by United States v. Jackson.

Because the Respondent was nden of right to trial

by jury, and because even the postponed opportunity for

jury trial was overlaid by an ny price, the —-

4 in the court below must be affirmed.

Conclusion |

For the Foregoing reasons, ~ decision below should be

3 8

Respectfully submitted,

WII W. Van —

Counsel for Respondent

. 8

a tel

—

Jacob L. Safron, Esq.

Assistant Attorney General

Department of Justice 7

P. O. Box 629

Raleigh, North Carolina 27602

Re: North Carolina v. Rice

No. 1325, Oetober Term, 1970

Dear Mr. Safron: /. ae

Thank you for your letter of April 15, 1971, relating to

te above matter. I have reviewed the de novo trial sit-

nation in Minnesota, to determine whether our experience

would be of any assistance to you.

As you probably know, our Supreme Court; in State v.

Holmes, 281 Minn. 194, 161 N.W.2d 650 (1968) held that it

was improper, as a matter of judicial policy, for the court

to impose on a defendant who has secured a new trial a

sentence more onerous than the one he initially received.

281 Minn. at 296. The Court expressly refrained from de-

ciding whether the rule applies in de novo trial situations

such as were involved in the Rice case.

Approximately one-third of all misdemeanor trials in

Minnesota are held in Hennepin County (which embraces

Minneapolis). In that county, our statutes provide that a

defendant is entitled to a jury trial in municipal court only

for certain specified offenses, such as driving under the

influence of an alcoholic beverage. A defendant who is

denied a trial by jury may obtain a jury trial, de novo, in

district court. M.S.A. § 488A. 10, subd. 6. .

Although I understand that the Hennepin County Dis-

trict Judges have not been imposing heavier penalties upon

defendants convicted following a de novo trial, the statistics

*

21

for 1970 provided by Mr. S. Allen Friedman, the Hennepin

County Court Administrator, reflect that no flood of appeals

has occurred: 6

5 De novo trials

Type of Number of Number of as a percentage

Trial Trials de novo Trials of total

Criminal 2257 ° . . 02

Traffie 5,208 Por 01

I also have some™doubt as to the propriety of using the

sentencing process to effect improvements in the court cal-

endar. Sentencing, it seems to me, has not been designed as

a tool to promote efficiency in the courts. —

Where the de novogial is a right created solely by the

legislature, it would seem that that body should enact fur-

ther legislation to resolve any problems resulting from the

création of the right, rather than delegating to the courts the

ad hoc power to inflict on some (but not necessarily all)

defendants a more severe punishment, for the sole purpose

of deterring some future defendants from exercising their

statutory rights. And in those cases (such as Hennepin

County) where the de novo jury trial must be provided as

a matter of constitutional mandate, deterring appeals by

use of heavier. sentences would seem to run afoul of North

Carolina v. Pearce>395 U.S. 711 (1969). :

If you have extra copies of your brief, I would be in-

rested in reviewing it. Because of the doubts I have

expressed, and because ouf statistics do not provide support

for your position, it does not appear that we will be able

- to join it. - 1

Very truly yours,

. Warren Sraxxaus

Attorney General

WS rl

‘ec: William W. Van Alstyne

Professor of Law

Duke University,

Durham, North Carolina