Improper Consideration at Sentencing of a Defendant’s Decision to Go to Trial

A trial court is free to consider all kinds of information about a defendant when deciding on a sentence. See State v. Pope, 257 N.C. 326 (1962) (“[I]t would not be in the interest of justice to put a trial judge in a straitjacket of restrictive procedure in sentencing. . . . He should be permitted wide latitude in arriving at the truth and broad discretion in making judgment.”). One thing a judge may not consider, though, is the fact that a defendant exercised his or her right to a jury trial. The black letter rule is clear: where it can be inferred from the language of the trial judge that a sentence was imposed even in part because the defendant insisted on a trial by jury, the defendant’s constitutional rights have been abridged and a new sentencing hearing must result. State v. Boone, 293 N.C. 702 (1977). By statute, a judge “shall not consider as an aggravating factor the fact that the defendant exercised the right to a jury trial.” G.S. 15A-1340.16(d).

There is, however, an inherent tension between the rule against punishing a defendant for his or her election to proceed to trial and the reality that the State routinely rewards guilty pleas by offering substantial benefits in return for them—a practice that is entirely permissible and essential to the operation of our criminal justice system. Bordenkircher v. Hayes, 434 U.S. 357 (1978). A trial judge put the paradox in black and white in a case that’s currently pending before the state supreme court: “I am not going to punish you for not pleading guilty. I would have rewarded you for pleading guilty.” State v. Pinkerton, __ N.C. App. __, 697 S.E.2d 1 (2010), pet. for writ of supersedeas allowed, __ N.C. __, 700 S.E.2d 230 (2010).

Part of any perceived discrepancy can, perhaps, be resolved by considering who is doing the rewarding/punishing—a prosecutor can do and say things that a judge may not. To the extent that the court is involved, determining whether a defendant’s exercise of his or her jury trial right impermissibly influenced a sentence typically involves a careful reading of what the trial judge may have said, either at trial or at sentencing, about the defendant’s choice. Sometimes it’s a fine line. But when you review the many cases discussing this issue some general trends emerge.

These types of comments tend to raise an inference of impropriety:

• Pretrial statements by the judge expressing certainty about the sentence he or she will give if a defendant elects to go to trial. State v. Cannon, 326 N.C. 37 (1990) (judge stated “in no uncertain terms” at a pretrial conference that defendants who didn’t plead guilty would get maximum sentences); State v. Young, 166 N.C. App. 401 (2004) (before trial, judge stated “[I]f you pled straight up . . . I’d sentence you at the bottom of the mitigated range. . . . [I]f you go to trial . . . I’ll be perfectly honest with you, . . . [you] would definitely get a sentence in the presumptive range. I probably wouldn’t go back to the mitigated range since I’m offering this now prior to trial, but I’ll let you think about it . . . ”).

• Statements by the court suggesting a defendant was foolish to go to trial. State v. Peterson, 154 N.C. App. 515 (2002) (“A rational person would never have rolled the dice and asked for a jury trial with such overwhelming evidence.”).

• Pre-conviction statements by the court indicating that its “hands will be tied” or that it will be “forced” to give a longer sentence if the defendant does not plead guilty when, in actuality, the court’s hands will not be tied. In State v. Hueto, 195 N.C. App. 67 (2009), for example, the trial court said to the defendant before trial that jury verdicts for multiple sex crimes would “compel me to give you more than a single B-1 sentence.” The court of appeals held that this “inaccurate statement of the law”—the sentences could have been run concurrently or consolidated—suggested consecutive sentences were imposed in part because of the defendant’s decision to go to trial.

• Post-conviction comments by the trial court suggesting “I told you so.” State v. Haymond, __ N.C. App. __, 691 S.E.2d 108 (2010) (after defendant was found guilty of the offenses by a jury, the trial court stated, “Way back when we dealt with that plea different times . . . I told you that the best offer you’re gonna get was that ten-year thing, you know”).

• Repeated references by the court to the “painful and embarrassing questions” a child victim had to face because of a defendant’s election to proceed to trial. State v. Fuller, 179 N.C. App. 61 (2006).

By contrast, the following scenarios did not require resentencing:

• A brief reference by the court (or by the State) at sentencing to a defendant’s failure to accept a plea offer. State v. Person, 187 N.C. App. 512 (2007).

• Pretrial discussion between the court and the defendant of the maximum sentence he or she might face upon rejecting a plea. State v. Tice, 191 N.C. App. 506 (2008) (concluding that a court may engage in such discussions to ensure that a defendant fully understands the possible ramifications of rejecting a plea).

• A court’s statement during a plea negotiation that it would be “amenable to a probationary sentence” if the parties agreed to a plea—even when the defendant received an active sentence after a jury trial. State v. Anderson, 194 N.C. App. 292 (2008).

• No inference of impropriety arises from the fact that a defendant convicted by a jury gets a more severe punishment than co-defendants who pled guilty. State v. Jones 21 N.C. App. 666 (1974).

The simplest advice for trial judges is, of course, to not say anything at all. See State v. Allen, __ N.C. App. __, 684 S.E.2d 526 (2009) (sentence upheld despite State’s repeated reference to the defendant’s failure to accept a plea when trial court made no comments on the matter). But I realize that’s easy for me to say from my little office in Chapel Hill. Sentencing is a human process—and there are no defendants or victims in the room with me when I read appellate cases.