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.

5 thoughts on “Improper Consideration at Sentencing of a Defendant’s Decision to Go to Trial”

  1. This comes from a federal judge:

    Criminal trial rates in the United States and in this District are plummeting due to the simple fact that we punish people–punish them severely– simply for going to trial. It is the sheerest sophistry to pretend otherwise. This is nothing new, of course. Sugarcoat it as we may with terms like “acceptance of responsibility” for those who cooperate, we have always punished those who demand that the government carry its constitutionally mandated
    burden of persuasion beyond a reasonable doubt before an American jury.
    United States v. Berthoff, 140 F.Supp.2d 50,53(D. Mass. 2001).

    It rings true to me.

  2. You might want to head to the N.C. Supreme Court on Tuesday, January 11th — one of the cases you cite here (State v. Pinkerton) will be argued that morning. 🙂

    • The Supreme Court of NC reversed the court of appeals’ decision in Pinkerton today, for the reasons set out in the COA dissenting opinion.

  3. To express it as “punishment” for going to trial is unfair. No recitation of factual basis by by a prosecutor is as compelling as a trial where emotions and personalities of witnesses are encountered. Regardless of what some may think judges are human and react to human situations,

  4. I was convicted by a guilty plea. The day of trial the judge repeatedly told my counsel he should talk to the state about a guilty plea, dispite counsel telling the judge i refused all plea agreements to include 3 days before trial a plea of 12 years with 6 suspended. The judge made a statement of ” I WILL NOT PENALIZE HIM IF HE PLEADS GUILTY TODAY, THATS STILL AN OPTION.
    This statement made me plead guilty and waive all my constitutional rights. I agreed to the advisments on guilty plea. Tried to withdrawl plea before sentenceing which counsel failed to do the verified motion to withdrawl. judge denied oral motion because counsel never followed the law and she went over advisement. PC court court of appeals and federal state habeaus court all agreed I MISS UNDERSTOOD WHAT SHE MEANT> and she meant she was allowing me to plead guilty on day of trial something she normally doesnt do. Statding law states that withdrawl will be granted if a manaifest injustice occurs. Manaifest injustice occures when a defendant can show he misunderstood trial judges statement about sentencing, misled into thinking he will recieve a sentence less severe that actually imposed. all my time spendable. the courts concluded i misunderstood yet refused to allow withdrawl. I even testified that i thought i was going home by that statement in transcripts yet courts said i never said that i only took that opertinuity to say i wanted a second chance which no where in my testimony at PC hearing does it say that. The trial judge argued for state on late or no discovery provided because state lab indicated policies not to send items of evidence to lab into forced to go to trial Presented evidence at PC that statement was a lie. trial judge was reqused for pc hearing and special judge appointed for bias and prejudice judge.
    what can i do now sentence as finished..


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