Make Sure You Know ALL of the Terms of Your Plea Agreement
February 10, 2015
Court Punishes Defendant for Going to Trial; Court of Appeals Vacates Sentence.
June 27, 2018
From People v Pennington, Docket number 32323, Michigan Court of Appeals (Published Opinion)(03/22/2018):
Defendant requests that his sentence be vacated and that his case be remanded to a different judge. He asserts that the trial court sentenced him pursuant to a blanket policy of imposing a sentence at the top of the guidelines on defendants who exercise their right to a trial rather than pleading guilty. Defendant did go to trial and did receive the highest sentence that can be imposed within the guidelines.
In People v Smith, unpublished per curiam opinion of the Court of Appeals, issued November 22, 2016 (Docket No. 328477), we addressed this issue in regard to the same trial judge. In that case, we admonished Judge Lillard for her practice of sentencing defendants who proceed to trial at the top of the guidelines range. Id. at 5. In Smith, this Court found that the trial court erred when it employed this practice because it resulted in the failure to provide the defendant with an individualized sentence. Id. at 6. This Court noted:
In this case, the trial court sentenced defendant pursuant to its “practice” of sentencing defendants “to the top of your guidelines” following a jury trial. According to the court, the purpose of its practice is “not to punish people for exercising their right to go to trial,” but to “reward [ ] people who accept—who accept responsibility for their behavior and plead guilty in advance of trial.” The distinction drawn by the trial court is unconvincing. The court’s statement that its practice rewards defendants who plead guilty strongly implied that those defendants are not as a matter of routine sentenced to the high end of their minimum sentence range. Thus, had defendant pleaded guilty, he would have received a lesser sentence. The court may not have intended to punish defendant for exerting his Fifth Amendment rights, but the impact is the same regardless. [Id. at 6.]
We agree that a policy of sentencing all defendants who go to trial to the top of the guidelines is fundamentally inconsistent with the principle of individualized sentences.
The judge’s policy also runs afoul of the principle that “[a]court cannot base its sentence even in part on a defendant’s refusal to admit guilt.” People v Hatchett, 477 Mich 1061; 728 NW2d 462 (2007); People v Yennior, 399 Mich 892; 282 NW2d 920 (1977). The right to trial by jury in a criminal felony prosecution is among the most fundamental rights provided by our judicial system. See People v Allen, 466 Mich 86, 90; 643 NW2d 227 (2002). Moreover, “[i]t is a violation of due process to punish a person for asserting a protected statutory or constitutional right.” People v Ryan, 451 Mich 30, 35; 545 NW2d 612 (1996).
Our opinion in Smith was issued on November 22, 2016. The sentencing in this case occurred on July 30, 2014, well before that date. Nearly two years later, on July 20, 2016, during a post-trial hearing, the trial judge confirmed that this was her sentencing practice. The relevant colloquy reads:
Defense counsel: As your honor knows, it’s the practice of this Court to sentence to the top of the guidelines after a defendant goes to trial –
The Court: Sometimes higher.
Courts, including the United States Supreme Court, have sometimes struggled to articulate the precise line between rewarding a defendant for pleading guilty, which is routine in plea bargains, and punishing a defendant for asserting his constitutional right to trial. 9 See United States v Jackson, 390 US 570 ; 88 S Ct 1209 ; 20 L Ed 2d 138 (1968) (statute found unconstitutional where trial by jury provides for a greater possible sentence than bench trial); Corbitt v New Jersey, 439 US 212 ; 99 S Ct 492 ; 58 L Ed 2d 466 (1978) (“a State may encourage a guilty plea by offering substantial benefits for return for the plea.”).
In this case, however, we need not resolve any tension between these principles. Here, the judge’s sentencing policy was to impose the maximum guideline sentence when a defendant was convicted after going to trial. This does not demonstrate a process where a court determines what an individualized sentence should be and then reduces it as an inducement or reward for the plea. 10 Rather, it is an automatic imposition of the maximum guideline sentence; a policy that ignores the requirement of individualized sentencing and promises not a degree of mercy as a reward for a plea, but rather a harsh sentence as a punishment for seeking a trial. Thus, while an admission of guilt may be considered as indicating remorse and may be grounds to lessen punishment that would otherwise be imposed, there is no doubt that sentencing defendants to the top of the guidelines because they went to trial or to increase their sentence in any way for doing so, is a violation of both due process and our law governing sentencing.
We affirm defendant’s convictions, vacate defendant’s sentences, and remand for resentencing before a different judge. We do not retain jurisdiction.