At the CDRC, we regularly receive questions from defense attorneys around the state. In this new column, we will reprint our answers to common or interesting questions (with any identifying case details omitted or modified) that might be helpful to a wider audience.

Question: My client received a bottom-third of the guidelines sentence from a judge with a reputation for being a harsh sentencer. Before announcing her sentence, the judge overruled some guidelines challenges raised by trial counsel that should have reduced her guidelines by more than twelve months. She is extremely concerned that if we successfully challenge her sentence in the Court of Appeals, the judge will find a way to increase her sentence when he resentences her. I know about the presumption against vindictive sentencing, but I don’t think her risks are unfounded. What’s the right thing to say here? 

Penalizing a defendant for exercising their constitutional and statutory right to appeal violates due process and is “patently unconstitutional.”¹ However, concerns among criminal defendants that successfully appealing their convictions or sentences will result in a worse outcome are not uncommon or unfounded. These concerns are legitimate and are understood to have a “chilling effect” on defendants’ exercise of their right to appeal. These concerns led the US Supreme Court to create a presumption of judicial vindictiveness in North Carolina v Pearce, 395 US 711 (1969). 

Pearce held 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,” and “must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding, … so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.”² When the presumption does not apply, defendants may still obtain relief by showing “actual vindictiveness upon resentencing.”³ The Michigan and the United States Supreme Courts began to limit the strength and applicability of the presumption Pearce created almost as soon as it issued.⁴ In 1986, however, the US Supreme Court explicitly held that the presumption was not intended to alleviate defendants’ concerns about vindictive sentencing,⁵ and in 1989, the Court largely eliminated Pearce’s generally applicable, bright-line rule, holding instead that the presumption of vindictiveness applies only to those circumstances “in which there is a ‘reasonable likelihood,’ that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.”⁶ 

As a result, the presumption no longer applies when a greater penalty is imposed after trial than was imposed after a prior guilty plea,”⁷ when a greater sentence is imposed by the same judge that granted the defendant a new trial or resentencing,⁸ and when a different judge imposes a harsher sentence following a successful appeal.⁹ The specific exceptions to the presumption of vindictiveness these opinions created were less problematic than the elimination of a predictable standard that helped provide reasonable assurances that a successful appeal would not expose a defendant to a harsher punishment if they were reconvicted or only granted resentencing.

Michigan’s appellate courts have been fairly consistent in holding that the presumption of vindictiveness generally applies: “where the same judge imposes both the original sentence and the sentence after retrial,”¹⁰ but they can and likely will continue to find that previously unidentified circumstances render the presumption of vindictiveness inapplicable to the facts of a specific case, and the US Supreme Court is likely to do the same.¹¹ These courts may also recognize and apply the presumption, but find that it is overcome by similar circumstances, at least when they are noted by the judge at the resentencing.¹² The impact of such decisions on the defendant whose sentence has increased and those still considering whether to appeal will be the same.

However, just because it is difficult to predict whether the presumption of vindictiveness will be applied or deemed to have been rebutted does not render the presumption toothless or render the prohibition against vindictive sentencing a dead letter. In Michigan, appeals raising claims of vindictive sentencing are relatively successful, but extremely rare. This suggests that most of our trial judges know that increasing a defendant’s sentence because they successfully appealed would violate the defendant’s right to due process and the judge’s oath to uphold the constitution and imposing a higher sentence after a successful appeal would invite appellate scrutiny into their sentencing decision.

In the last two months, the Michigan Supreme Court and Court of Appeals have granted resentencings or new trials to more than sixteen criminal defendants. In contrast, in the last five years, they have issued only eight opinions addressing claims of vindictive sentencing, and in at least half of those eight cases, the defendants clearly benefitted from their decision to appeal, despite their claim of vindictiveness. While just one of the decisions held that the defendant’s new sentence violated the prohibition against vindictive sentencing, ¹³ another decision rejected the trial court’s stated explanation for increasing the defendant’s sentence, but ultimately granted resentencing based on an unrelated error,¹⁴ and another resulted in the defendant being granted a new trial by the Supreme Court after the Court of Appeals rejected his claim of vindictive sentencing.¹⁵ In a fourth decision, the Court of Appeals rejected the defendant’s claim of vindictive sentencing and denied resentencing, but this was because the trial court reduced his overall total minimum sentence by twenty years when it vacated its prior order requiring him to serve his two sentences consecutively but increased the minimum sentence for both offenses by five years.¹⁶ 

While the presumption created by Pearce may be easier for defense attorneys to explain to their clients, and Pearce’s forceful language would certainly be reassuring to anyone concerned about the risks of pursuing a successful appeal, comparing the number of defendants who successfully appeal to the number of defendants claiming vindictive sentencing following successful appeals likely provides a more accurate understanding of the relative risks and rewards of pursuing an appeal. When a client expresses concern that a successful appeal will leave them worse off in the end, their attorneys have a duty to accurately apprise them of the potential risks and rewards of an appeal, as well as the law. Judges are prohibited from increasing a defendant’s sentence because they successfully appealed, but there is no guarantee that a judge’s apparently pretextual explanation for increasing a defendant’s sentence will be rejected by an appellate court¹⁷ or that the appellate court won’t find some other basis for permitting an apparently vindictive sentence to stand. Most appeals in criminal cases are unsuccessful, but the overwhelming majority of successful appeals do not leave the appellant in a worse place than they were when they started. By staying out of trouble and taking actions that will help demonstrate progress towards rehabilitation while their appeal is pending, defendants can do more to guard against a lengthier sentence if their appeal is successful than the aspirational language in Pearce ever could.

Endnotes

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