# Petition for Writ of Certiorari — Coiner v. Shear

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1968
- **Citation:** 390 U.S. 981

## Text

LIBRARY. F ee | Office-Supreme Court, U.S.

SUPREME COURT, DU. & 3 eILED

no, L025. | sAN 16 1968

IN THE

"Supreme Court of The United States

October Term, 1967 pa

OTTO C. BOLES, Warden of the
West Virginia State Penitentiary,
Petitioner
V.

LEE SHEAR,

- Respondent:

PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT —

C. DONALD ROBERTSON |
Attorney General -

State of West Virginia
State Capitol
Charleston, West Virginia

LEO CATSONIS |
Assistant ae General ©

MORTON L ‘TABER:
Assistant Attorney General

Counsel for Petitioner.

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INDEX
, ft rae: Page
Opinions below Sabmes aati -
ae... eete cakes ee
Question. presented aan Te
Constitutional provisions and statutes involved - 2
RELATE A ee pene Pe eee fie a
‘Reasons for granting the writ ._ . en ai 5
Conclusion eens beer Beltane «14 7
Appendix A—Constitutional ——- and ¥
matetes invelved ... =... ,----
eipeadix B—Opinions below _. Meee) |
(1): Opinion. of the District Court for the |
Northern District of West Virginia 3-A

(2) Opinion of the Fourth Circuit Court o/
‘Appeals in Patton v. North Carolina ... .3-A

(3) Memorandum decision of the ‘Fourth
’ Circuit’ Court of nee in Shear v.

Boles ioravonerenaceen foeee | *
Appendix C~Oréers below * _. B6-A
(1) Order of Release by the District Court
dated September 22,1964 . ..——_. 86-A

(2) Order of District Court denying relief
and dismissing petition for writ of ©
habeas corpus dated February 6, 1967 ..37-A -

(3) Order granting petition to recall and
stay the memorandum decision in Shear
v. Boles, dated October 26,1967 ..... 38-A

i 4

AUTHORITIES

| Page
Ball v. United States, 163 U. s. 662,.16 S. Ct. . ,
1192, 41 L. Ed. 300 ( Sk: aN tach hee ec 7
Bartkus V. Illinois, 359.U..S. 121, 79 S. Ct. 676,
_8-L. Ed. 2d 684 (1959) _. ars .. 5,6
Brantley Vv. Georgia, 217 U. S. 284, 308. Ct. 514,
54 L. ted. 768 (1910) .. : 6
Brock v. North Carolina, 344 U. Ss. 424, ‘BS. Ct.
349, 97 L.Ed.-456 (1953) .. unt | 6
Bryant .V. United States, 214 F. 51 ‘(8th Cir., =
| a ee ee eer ee eee
Chambers v. State, 199 Kan. 483, 430 P. 2d 241
(1967) _ . a,
Cichos Vv. * Indiana, 385 U. S. 16, 87 S$. Ct. 271,
17 L. Ed. 2d 175 (1966) - ver
Downum Vv. United States, 372 U.S. 734, 83: S.
Ct. 1033, 10 L. Ed. 2d 100 (1963) - Ne
Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.
Ed.°872 (1873) ~~ a?
Forman v. United States, 361 U. Ss. 416, 80 S. |
Ct. 481, 4 L. Ed. 2d 412 ( : Ce
Green v. United States, 355 U.S. 184, 78S. Ct.
221,2 L. Ed.-2d 199 (1957) 6
Hammers v. United States, 297 F, 265. (5th
Cir.,' 1922) 9

Hayes v. United States, 249 F. 2d 516 (D.C
' Cir., 1957), cert. denied 356 U. S. 914, 7 :

S. Ct. 672, 2 L. Ed. 2d 586. Sere.
Hicks V. Commonwealth, 345 Mass. 126, 185 am
> N. E. 2d 739 (1962) - a
Howell v. United States, 199 F. 2d 366 (4th

Ma MN ee a 8
King V. United States, 98 F. 2d 291 (D. C. :

ae _, SS IBELARAT, SOR Oe Re One Se 9

Kitt v- United States, 138 F, 2d 842 (4th Cir.,

1943) _ 8

Kohlfuss v. Warden, 149 Conn. 692, "183 A. 2d
626 (1962) _. . ee

di

Page —
Marano Vv. United stapes, (1st Cir. ‘i 374 F. 2d

a a 9, 10, 11
Moon v. State, 1 Md. App. 569, 232 A. 2d 277 |
“ (1967) |. ~ -

Murphy v. Commonwealth of Massachusetts,
- 177 U.S. 155, 20 S. Ct. 639, 44 L. Ed. 711
II sic snssc sipheiendccieaieape dca Oaaiaanuninpeaiennmanianonenoes 8,9.
Palko Vv. Connecticut, 302 U. s. 319, 58 S. ‘Ct.
149, 82 L. Ed. 288 (1937) -
_ Patton v. North Carolina, 381:F. 2d 636 (4th

Cir., 1967) - 1-4, 9, 13, 14
Peop le V. Dillon, 7 Mich. App. 365, 151 N. Wz |
od 365 (1967 y —

People v. Henderson, 60 Cal. 2d: 482, 35. Cal.

Rptr. 77, 386 P. 2d 677 (1963) (dissent) al 6, 13
Robinson v. United States, 144 F. 2d 392: (6th |

Cir., 1944), affirmed 324 U. S. 282, 65 S. Ct.

666, 89 L. Ed. 944 : 9
Sasser v. United States, 352 F. 2d 796 (6th

a I no sc cliainpenagiaacienemcnnesties
Shear V. Boles, 263 F. Supp. 85 (N, D. W. Va. w"
Sa RRIRE. REE Ahoen OEE SPI acne Oe ee 4,12
State ex rel. Boner V. “Boles, 148 W. Va. 802,

137 8. E. 2d 418 (1964) 4.

Stevens v. Warden, 382 F. 2d 429 (4th Cir.,

1967) . ae
Stroud v. United States, 251 U. S. 15, 40S. Ct.’
50, 64 L. Ed: 103 (1919) _ iapaciecemene 6, 8
- United States v. Berry, 282 U. S. 304, 51S. Ct. :
' 115, 75 L. Ed..354, 358 (1931) —---...---.-.------. 7
United States ex rel. Starner Vv. Russell, 378 F. -
2d 808 (3d Cir., 1967 ) 8, 10
United States v. Tateo, 377 U.S. 463, 84 S. Ct.
1587, 12 L. Ed. 2d 448, 453 (1964) (dissent) ae

Williams v. Oklahoma, 358 U. S. 576, 79 S. Ct.:
421, 3 L. Ed. 2d 516 (1959) . oan

ili

«
3 Ait GOMER AIRE iE ie Na aes Bice

Constitutional Provisions:
United States Constitution:

_. Page

Fifth Amendment _ 1A.
j ‘West Virginia Constitution: | i.
Article III, Section 5 z — 1A
+ Statutes: |
Federal:

28 U.S. Code § 1254 (1)

are
West Virginia Code, Chapter 61, Article 2, }
Section 12 (Michie, 1966) — —— “leA
- West Virginia Code, Chapter 61, ‘Article
11, Section Sees .. 2-A -
MiRcilaneous: |
Annotation, 12 A. L. R. 3d 978 (1967) Rien 9
50 Virginia Law Review 559, 563 (1964) _.. 7
iv

NO.

| IN. THE
Sure Court of The United States

October Term, 1967

OTTO C. BOLES, Warden of the °
West Virginia State ee |
Petitioner © |

_, LEE SHEAR,
| Respondent.

PETITION FOR A WRIT OF CERTIORARI TO.
THE UNITED STATES COURT OF APPEALS
FOR THE F OURTH serie tal

_ Petitioner prays that a writ of-certiorari issue to
review the judgment of the United States Court of Ap-
peals for the Fourth Circuit, entered in the above-en-
titled case on October 5,. 1967.

OPINIONS BELOW

The opinion of the District Court for the Segtheen
District. of West Virginia is reported in 263 F. Supp.
855. The memorandum decision of the Circuit Court
has not yet been reported and was based upon that
Court’s decision in Patton v. North Carolina, 381 F.
2d 636, (4th Cir., 1967), rehearing en banc denied Sep-

2.

tember 5, 1967. All of these opinions are reprinted i in
Appendix B, pp. 3-A-35-A.

JURISDICTION

_ ‘The memorandum decision of tlie Circuit Court of _
~ Appeals: reversing the judgment of the District Court
and remanding the case was issued and ‘filed on Octo-
ber 5, 1967. ‘The petition to recall the memorandum
decision and to stay the decision pending this applica-
tion was filed on October 25, 1967, and granted by the
Court of Appeals on October 26, 1967. The jurisdic-
tion of this Court is invoked under 28 U. S. tees §
1254 (1). :

QUESTION PRESENTED

Whether a state court has the right to increase: pun-
ishment following a new trial and jury verdict where
the first sentence imposed on the defendant’s plea of
guilty is less and or by the action of the defend-
ant?

CONSTITUTIONAL PROVISIONS AND
‘STATUTES INVOLVED

- The pertinent constitutional provisions and statutes
are printed in _——— A, infra, pp. 1-A, 2-A.

STATEMENT

In February, 1964, Shear was charged with armed
robbery in two. separate, unrelated indictments and
thereafter, while represented by two court appointed
attorneys, pleaded guilty to hoth indictments. He was
given two concurrent ten-year prison terms and i incar-

Boe 2s.

cerated in the West Virginia State Penitentiary. . In

May, 1964, he petitioned the West Virginia Supreme
Court of Appeals for a writ of habeas corpus! and the .
writ.was refused‘in June, 1964.

Shear petitioned the federal district court fet habeas
corpus relief? and in September, 1964, .after a plenary
hearing, the district court set aside and voided the,con-
victions and sentences on the ground that the pleas had
been involuntary. The Court did, however, stay the
order of release to enable the State to initiate proceed-
ings for the purpose of retrying Shear on the two in-
dictments.°

Represented ad the two. attorneys who had repre-
sented him in the federal habeas corpus proceeding,
Shear went to jury trial on the two indictments and
was found guilty of both charges. He was not tried
before the same state trial court judge who had.ac-
cepted his guilty pleas in February, 1964, and the trials
occurred at different terms of court.* Prior to ——
to trial on the second indictment, Shear was sentenced
to fifteen yeaxs for the figst conviction and was there- °
after given a consecutive fifteen-year sentence for the
second conviction.* -Under West Virginia law offenses_
of this nature carry a minimum sentence eof ten years’
confinement.®

*Essentially, Shear nici ineffective assistance of counsel and invol-
untariness of his plea as a result of threats made by his court-appointed

. counsel and the State court trial judge.

*Tt ~ same grounds were relied upon in the District Court.
' "See Order of Release, Appendix C, p. 36-A.
- ‘Shear was tried on one indictment in October, 1964, and on the
other in February, 1965, with different jury panels in each case.

5On January 11, 1965, he was sentenced to fifteen years for the
October conviction and on February 3, 1965, to fifteen years ad the
second conviction.

* ‘West Virginia Code, Chapter éty-Article 2, Section 12 (Michie, 1966),
set out in its entirety in Aggenay A, p. 1-A.

e

cd

-
~
id

4

After an unsuccessful petition to the West Virginia
Supreme Court of Appeals for habeas‘corpus in which |

the imposition of the more severe sentences. was as-

serted,’ Shear petitioned the federal district court -for
habeas corpus relief.2 The.district court dismissed
the petition and the case was appealed to the Fourth
Circuit Court of Appeals.. However, upon request by
the district court, the-case was remanded to the dis-
trict court by the Court of Appeals for the specific pur-
pose of considering the constitutional aspects regard-
ing a more severe second senten¢ing of a successful
habeas corpus applicant in a renewed state prosecu-
tion. The district court, in a comprehensive memor-
andum. opinion, concluded that the mére imposition of
a more severe sentence, without more, did not amount
to a constitutional deprivation and denied the writ. ,

The district court granted Shear a ‘certificate of
probable cause to appeal, and on October 5, 1967, the
Fourth Circuit Court of Appeals, on the basis of Pat-
ton V. North Carolina," issued a memorandum decision
in which the judgment of the district court was re-
versed and the ease remanded for further proceed-
ing." The Fourth Circuit,’ in the Patton case, con-
cluded that i increasing punishment on retrial violated
the Fourteenth Amendment in that it exacted an un-
constitutional condition to the exercise of the right to a

"Shear also contended that the trials violated the “double jeopardy”
provisions of the federal Constitution .and that. he should have been
reindicted prior to the subsequent trials.

"The district court found that Shear had not exhausted eveliahie state

remedies.

*Shear v. Boles, 263 F. Supp. 85 (N.. D. W. Va., 1967). The ‘full text.
‘ of the opinion is set out in Appendix B, p. 3-A.
381 F. 2d 638 (4th Cir., 1967), decided June 14, 1967, rehearing en

- bane denied September 5, 1967, The full text of the opinion is ast out in

Appendix B, p. 18-A.
“The memorandum is set out in Appendix B, p. 34-A.

5

fair trial, arbitrarily denied equal protection of the law
and placed a defetidant twice in jeopardy of punish- .

ment for the same offense.
«

On October 25, 1967, the petitioner herein petitioned
the Court of Appeals to recall the memorandum de-
cision and to stay the decision pending application to ,
this Court for a writ of certiorari. The Court of Ap-
peals eeu the petition on October 26, 1967.12

REASONS FOR GRANTING THE WRIT

The federal questions herein haw been decided be-
low in a way which is not in accord with the applicable
decisions of this Court and are directly in conflict with
decisions of other circuit courts of appeals and state
courts. The decision constitutes a radical departure
from established law and practice and has adversely _
affected-and emasculated established sentencing prac-
tices of both state and federal trial courts.

Z.

The circuit court’s opinion concluded, biter alia, that
“increasing Patton’s punishment after his initial con-
viction constitutes a violation of his Fourteenth
Amendment rights in that it * * * placed him twice in
jeopardy of punishment for the same offense.”* ‘Fhe
_ decision below is in conflict with the long series of de-
cisions of this Court that the Fifth Amendment’s pro-
hibition against double jeopardy is inapplicable to state
court prosecutions under the due process clause of the
Fourteenth Amendment. Bartkus v. Illinois, 359 U.S.

"See Order Staying Memorandum Decision, Appendix C, p. 38-A.
. 381 F. 2d at 646. ‘

6

121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959); Brock v.
North Carolina, 344 U. S: 424, 73 S. Ct. 349, 97 L. Ed.
456 (1953) ; Palko v. Connecticut, 302 U. S. 319, 58
S. Ct..149, 82 L. Ed. 288 (1937) ; Brantley v. Georgia,
217 U.S. 284, 30 S. Ct. 514, 54 L. Ed. 768 (1910).
This Court,:in Bartkus, supra, at page 689 (L. Ed 2d)
of the opinion, specifically reaffirmed its holding in
Palko, supra, that: :

““* * * while at some point the cruelty of harrass-

‘ment by multiple prosecutions by a State would
offend due process, the specific limitation im-
posed on the Federal Government by the Double —
Jeopardy Clause of the Fifth Amendment did
‘not bind the States.” :

The circuit court attempted to justify its holding
on the basis that the prohibition against double jeop- |
ardy relates also to the punishment imposed for the
offense of which the defendant was convicted.'® In
so holding, the circuit court is in direct conflict ‘with
the cornerstone decision of this Court in *Stroud v.
United States, 251 U.S. 15, 40 S. Ct. 50, 64 L. Ed.
103 (1919), in which the-court approved a death
sentence in a federal prosecution, whereas the sen-
~ tence on the first conviction was for life.’® The court
held that such procedure:did not violate the federal

“This Court specifically had the question of the applicability of the
double jeopardy clause to the states in Cichos v. Indiana, 385 U.S. 76,
87 S. Ct. 271, 17 L. Ed. 2d 175 (1966), but did not reach or decide it.

*381 F. 2d at 644, 645. The circuit court relied on Ex parte Lange, 85 “ ;

U. S. (18 Wall.) 163, 21 L. Ed. 872 (1873) which is clearly distinguish-
able and will be discussed infra.

381 F. 2d at 644, 645. The circuit ‘court attempted to distinguish
Stroud on the basis of Green v. United States, 355 U. S. 184, 78 S. Ct. 221,
2 L. Ed. 2d 199 (1957), even though this Court, in the Green case,
specifically noted that Stroud was “clearly distinguishable. ” OL. Ed.
2d at 208, fn. 15. See also People v. Henderson, 60 Cal. - 482, 35 Cal.
Rptr. 77, 386 P. 2d 677 (1983), (dissent). “

i

constitutional ban on paren jeopardy, reasoning, at

page 18 (251 U. S.), that:

- “The protection afforded by the Constitution
is against a second trial for the same offense.”

Moreover, the circuit court’s reliance upon Ex parte
Lange, 85 U.S. (18 Wall.) 163, 21 L. Ed. 872 (1873),

for its “double punishment” theory is misplaced,” in- —

asmuch as this Court, in more recent decisions, has
unequivocally announced that “the prohibition of the
Double Jeopardy Clause is ‘not against being twice
punished, but against being twice put in jeopar, ss
- United States v. Tateo, 377 U.S. 463, 84S. Ct. 1587,
12 L. Ed. 2d 448, 453-(1964) (dissent) ; Downum V.
United States, 372 U. S. 734, 83 S. Ct. 1033, 10 L. Ed.
2d 100 (1963) ; Ball v. United States, 163-U. S. 662,
16 S. Ct. 1192, 41 L. Ed. 300 ( ).

Il.

The double jeopardy clause does not prevent retrial -

of a defendant whose conviction is set aside because
of an error in the proceedings, Forman v. United
States, 361 U. S. 416, 80 S. Ct. 481, 4 L. Ed. 2d 412
( ), and it is immaterial that the conviction is
overturned on collateral rather than direct attack.
United States v. Tateo, 377 U. S. 463, 84 S. Ct. 1587,
12 L. Ed. 2d 448 (1964). Accordingly, when the de-

“The imposition of an increased sentencé after an appeal must be
distinguished from the case in which a sentence is increased without
an appeal and without any affirmative action on the part of the defen-
dant, such as in Lange. See 50 Va. Law Review 559, 563.(1964), fn..11.

See also United States v. Berry, 282 U. S. 304, 51 S. Ct, 115, 75 L. Ed.
354, 358 (1931), where Lange was distinguished as a case where the
statute authorized imprisonment, or fine, in the alternative only, and
the sentence imposed both; the opinion merely holds that new sentence:
of irhprisonment cannot be imposed after payment of the fine, which
operated as a satisfaction of the prior judgment.

4 eee ae

8°

Pa J

fendant seeks review, the subsequent ae am of a

higher penalty does not constitute double jeopardy.

In this regard the circuit court’s ruling i is directly

contrary to two holdings of this Court-in Stroud v.

United States, 251 U.S. 15, 40-S. Ct. 50, 64 L. Ed. 103
(1919), and Murphy v. Commonwealth of Massachu-

"setts; 177 U. S. 155, 20 S. Ct. 639, 44 L. Ed. 711

(1900), is in direct conflict with the holding of: the ~
Third Circuit Court of Appeals’® and a majority of
state courts.’® Moreover, the decision appears to be
in direct conflict with its own holdings in Howell v.
United States,” 199, F. 2d 366 (4th Cir., 1952), and
Kitt v. United States,”’ 138 F. 2d 842, ace Car...

1943).

-In United States ex rel. om v. Russell, 378 F.
2d 808, 810 (3d Cir., 1967), the sole issue before the
Court was “the right of a State court to increase pun- .
ishment following a new trial where the first sentence
imposed on the prisoner’s plea of guilty is less and va-
cated.” * The Third Circuit,-in a case similar to the in-
stant case, held that the rule in the federal system is.
that a trial judge, when a new trial is ordered, may
impose a sentence greater than one he had earlier va-

* United States ex rel. Starner v. Russell, 378 F. 2d 808 (3d Cir., 1967.) .

See Annotation, 12 A.L.R. 3d 978 (1967).

*Howell’s sentence had been declared void in a habeas corpus pro-
ceeding. and, on resentencing, he contended the sentence had been
increased. The Fourth Circuit rejected the contention and noted that
“after petitioner * * * elected to treat the original 20 year sentence as
void and * * * secured a judgment to that effect, he cannot claim any
benefit as of right because of that sentence. If it is void, it amounts
to nothing.” Id. at 367. -

“Similarly, when Kitt was remanded for resentencing, he “stood in
the same position that he occupied when, after the jury’s verdict of
guilty, he first stood before the District Judge to be sentenced. * * *
We * * * think he (judge) could have raised the sentence above the
valid portion of the original sentence, provided, of course, he kept
within the statutory limits.” Id. at 843.

?

£)

9

- eated, “is it is unnecessary to articulate the reason

for any differentiation in the term of the sentence. In

- guch a case, the defendant is held to have waived his
protection against double jeopardy.” Accord, Mur- -
* phy v.. Commonwealth of Massachusetts, supra; Sas-

ser V. United States, 352 F. 2d 796 (6th Cir., 1965) ;

Hayes v. United States, 249 F. 2d 516 (D. C. Cir.,

1957), cert. denied 356 U. S. 914, 78 S. Ct. 672, 2 L.

Ed. 2d 586; Robinson v. Umited States, 144 F. 2d 392.
(6th Cir., 1944), affirmed 324 U. S. 282, 65 S. Ct. 666,
89 L. Ed. 944; King v. United States, 98 F. 2d 291
(D. C. Cir., 1938) ; Hammers v. United States, 279 F.

~ 265 (5th Cir., 1922); Bryant v. United States, 214 F. |
51 (8th Cir., 1914). See also e.g., State ex rel. Boner

v. Boles, 148 W. Va. 862,°137 S. E. 2d 418 (1964) ;z
Moon v. State, 1 Md. App. 569, 232 A. 2d 277. (1967) ;
Chambers v. State, 199 Kan. 483, 480 P. 2d 241

(1967) ; People v. Dillon, 7 Mich. App. 365, 151 N. W.

2d 365 (1967); Hicks v. Commonwealth, 345 Mass.

126, 185 N. E. 2d 739 (1962); Kohlfuss v. Warden, ©

149 Conn. 692, 183'A. 2d 626 (1962) ; Annotation 12
A.L.R. 3d 978 (1967). ‘The dilemma created by the
conflict of decisions in the Circuit Courts of Appeals

is best exemplified by Moon v. State, supra, wherein,

at page 278, the Maryland Court stated:

“In Marano v. United States, (1st Cir.) 374
F. 2d 583, the first circuit held that a greater
sentence could not be imposed. In Patton v.
State of North Carolina, (4th Cir.) —.. F. 2d
, June 14, 1967, the fourth circuit. also held

oe .
™Cichos v. Indiana, 385 U. S. 76, 87 S. Ct. 271, 17 L. Ed. 2d 175 (1966),
seems to have determined that an increased sentence on retrial is not a

violation of the double jeopardy provision of the federal constitution.
The crux of the decision is that the defendant could be retried on both

counts and presumably given the maximum sentence « ot years with-

out violating the double senpandy clause.

a

§ ererery:

10

‘that a greater sentence could not be imposed. In
United States ex rel. Starner v. Russell, (3rd
Cir.) 378 F. 2d 808, May 25, 1967, the third cir-
cuit held that a heavier sentence could be im-
posed. In the absence of an authoritative ruling

_ by the Supreme Court of the United States, we
shall continue to follow the rule as laid down in
the Maryland cases, especially, where as here,
the indictment has been declared void, as op-
posed to a new trial under the same indictmen
after reversal.” (Emphasis Supplied). :

Ill.

The decision of the Fourth Circuit, with its con-
stitutional ‘underpinnings, emasculates the tradi-
tional discretion allowed trial judges in the sentenc-
ing process and is apparently in conflict with decisions
.of this Court and other circuit courts. In holding that .
a second sentencing judge could not, under any cir-
cumstances, increase a sentence following a success-
ful appeal the Fourth Circuit has created an unwar-
ranted irrebuttable presumption of injury in such
cases.”* ‘S .

The facts in the instant case are more closely akin
to those in United States ex rel. Starner v. Russell, 378
F’, 2d 808 (3rd Cir., 1967), wherein the defendant had
initially pleaded guilty, and after the previous charges
had been vacated, pleaded not.guilty. At page 810 of °
the opinion, the Third Circuit stated: 7

"The district court held that Patton’s punishment could not be in-
creased unless evidence justifying a harsher sentence appeared in the
record. 256 F. Supp. at 236. The Circuit Court rejected this.

381 F. 2d at 641. The Fourth Circuit,-while ostensibly in accord with
| Marano v. United States, 374 F. 2d 583 (1st Cir., 1967), rejected language
therein, characterized as “dictum”, to the effect that in some circum-
| Stances it might not be inappropriate for the court to take subsequent
events into account. ;

11

“Accordingly, it can be said the later sentence
imposed by Judge Shughart was well within the
limits fixed by the law, as the petitioner could
have been sentenced.for.a period up to ten years:
on each count. Here, the decision to impose the
sentence given was within the discretion of the
trial judge who had an opportunity to see and
hear the accused and his witnesses. The trial
judge below concluded, ‘No prisoner should be
punished for obtaining a new trial nor for plead-
ing not guilty.’ However, the record does not dis-
close that he was.” . (Emphasis Supplied).

The Third Circuit distinguished the Marano case,
supra, and, at page 811, noted: : 7

_«* * * We differ with the court’s opinion for
the reason that we cannot properly speculate
that the court certainly will increase the sen-
tence, after a new trial. To so hold would seem
to trespass the integrity of the trial judge who, ,
upon hearing all the evidence, with the whole
panorama of defendant’s crime laid out before .
him, conscientiously passes sentence .in accord-
ance therewith, even though here the defendant

.did not take the stand nor call witnesses on his
‘behalf. The sentence thus imposed by the trial
judge cannot, in any sense, be said to be fér his -
. appealing, unless we again attribute to him a
base motive— penalizing’ him for his appeal,
conduct unworthy of the name of judge—rather
than for his weighing and evaluating the mea-
sure of defendant’s crime and passing sentence
thereon, in the light of the wider, factual area
encompassed bythe trial which, in most in-
stances, is far more revealing than those factual
elements taken into consideration in the imposi-
tion of sentence upon a plea of guilty. While we
_ are wholeheartedly in agreement with the prin-
ciples laid down in Gideon v. Wainwright, supra,
it must be conceded that only the fact of not

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12
being represented by counsel in the precourt
proceedings gave him the second opportunity to
plead his case and he chose to go to trial and have

a jury test the accusations against him. When —

he appeared and entered a plea of not guilty at
the second trial, the slate had been wiped clean
and it was.an entirely new case and bore no
relationship whatsoever to his previous plea of
- which he had entered.” (Emphasis sup- »
plied). : rs :

At page 812 the Circuit Court concluded :

“It is submitted it would be a flagrant tres-
_ pass of an independent state argeay O to ques-
tion its discretionary judgment, in. the imposi-
tion of a sentence, where the trial judge, in the
possession of all the facts relative thereto, in
a —* in a Federal court on a writ of |
habeas corpus—already ruled on by the highest
tribunal’of the state—would vacate the same,
-unless it clearly flouted constitutional standards
of due process.” . eae

The District Court, in the instant case, via a com--
prehensive, well-reasoned opinion, concluded that a —

‘‘habeas corpus court could not assume the function and”

discretion of a sentencing court or judge the constitu-
tionality of a second sentence merely by its length.™.
Logically, the District Court noted that various factors ©
must be considered in evaluation of sentences by an
appellate or other non-sentencing review court, ¢.g.,
that trial court is best equipped to observe the defend- .

‘ants’ demeanor and the extenuating circumstances of

the crime especially where, as here, the second con-
viction was on a jury verdict as contrasted with the

“Shear v. Boles, 263 F. Supp. 85 (N. D. W. Va., 1967); see Appendix - '

B, p. 3-A. : ,

‘13

initial guilty plea,2> whether the second sentencing
judge manifested a hostile attitude, whether the second
sentencing judge is the same judge who had imposed
the first sentence,” ete. 7

The District Court applied this criteria to the in-
stant case and concluded that the record did not reflect
that Shear’s second ‘sentences were motivated by retri-
butive intent. In so holding, the District Court was

“aware of the conflicting decision of the North Carolina
District Court in Patton v. North Carolina, 256 F.
Supp. 225 (W. D..N. C., 1966), but had no difficulty

- distinguishing the decision on the evidence presented
therein.” |

Sesion, the’ Fourth Cigcuit appears to be again
at odds with one of its own decisions, Stevens v. War-
den, 382 F. 2d 429 (4th Cir., 1967), wherein, at page
433, it is stated:

_. “Meanwhile, however, the federal courts have
no right to review any sentence of a state court
which does not exceed the statutory maximum
sentence which may be imposed under the laws
of the state. Since the only thing wrong with
the entire proceedings was the sentence, ¥ we are
rane to afford relief.”

*See, for ieee People Vv. entuteen. 60 Cal. 2d 482, 35 Cal. Rptr.
77, 386 P. 2d 677, 696 (1963), (dissent), wherein defendant pleaded
guilty at first trial and, on retrial, the record revealed evidence per-,
tinent to both guilt and penalty characterized as “too revolting to
unnecessarily detail.”

“The judges were not the same in the instant case.

"The District Court, in Patton, coricluded that harsher punishment
was constitutionally permissible if there ‘was a discernible reason there-
for.«The Fourth Circuit rejected this. Unlike Shear, in Patton the
record indicated the second sentencing judge remarked that he “would
teach these jail house lawyers” prior to imposing sentence.

14

As stated in Williams v. Oklahoma, 358 U. 8S. 576,
79 S.Ct. 421, 3 L. Ed. 2d 516 (1959), at page 522
(L. Ed. 2d) : vie |

“* * * In discharging his duty of imposing a
proper. sentence, the sentencing judge is au-
thorized, if not required, to‘ consider all of the

' mitigating and aggravating circumstances in-
volved in the crime. * * * Certainly one of the
aggravating circumstances involved in this kid-
naping crime was the fact that petitioner shot
and killed the victim in*the course of its com-
mission. We cannot say that the sentencing
judge was not entitled to consider that circum-
stance, along with all the other circumstances
involved, in determining the proper sentence to
be imposed for the kidnaping crime. * * *”

o
ae a~

GE, CONCLUSION

The decision below is palpably erroneous. Until the
decision in the Patton and instant case, it had never
been thought that when a judgment of conviction was
reversed at the defendant’s behest, the former sentence
tied the hands of the trial judge in sentencing the
defendant on a new judgment of conviction for the
same offense rendered upon retrial. The most im-
mediate effect is that a new category of “automatic”
appeals has been carved out by judicialdecision and
constitutes still another unwarranted intrusion on
state criminal procedure. It is respectfully submitted
that. this petition for a writ of certiorari should be =~

granted. |
Respectfully submitted,

( Date) Counsel for Petitioner —

APPENDICES

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1200%3A1. Public record. Not legal advice.