State v. Braun

¶1(dissenting).

¶2Emblazoned on the edifice of this Nation’s temple of justice, known as the United States Supreme Court, are these words: “Equal Justice Under Law.” This structure is as imposing as the men who have served in it, since the founding of our country, and this phrase is the spirit of all law under our way of life. Upon that phrase, I moor this dissent. Appellant is not claiming cruel and unusual punishment. Nor is he claiming that the sentence shocks the conscience of this Court. He maintains, most forcefully, that the law has not been equally applied to him. The record supports his contention.

“Equal protection of the law requires that the rights of every person must be governed by the same rule of law under similar circumstances and, in the administration of criminal justice, the imposition of different punishments or different degrees of punishment upon one than is imposed upon all for like offenses is a denial of such right.”

¶3State v. Goodale, 86 S.D. 458, 466, 198 N.W.2d 44, 48-49 (1972). Appellant was, through the advocacy of the State’s Attorney of Spink County, punished differently than other first D.W.I. offenders because he exercised his constitutional right to a jury trial and refused a blood-alcohol test. Everyone is entitled to a jury trial, notwithstanding the appearance of guilt — it is the backbone of our entire judicial criminal system. Every man, woman, and child has the right to put the state on its proof. A jury trial is one of the few exceptions in American jurisprudence where we, in the law, still permit the ordinary citizen to participate in our branch of government. I despise the inroads upon, and abolition of jury trials, as I perceive it, which grow like a cancer and spread across this Nation, and *153I must write against it.1 The exercise of a constitutional right cannot be encumbered with the threat or actuality of a more severe sentence upon conviction. People v. LaFiura, 49 Ill.Dec. 404, 93 Ill.App.3d 1099, 418 N.E.2d 48 (1981). Whether a defendant exercises his constitutional right to trial by jury to determine his guilt or innocence must have no bearing on the sentence imposed. Hess v. United, States, 496 F.2d 936 (8th Cir.1974); United States v. Marzette, 485 F.2d 207 (8th Cir.1973); United States v. Stockwell, 472 F.2d 1186 (9th Cir.), cert. denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973); United States v. Hopkins, 150 U.S.App.D.C. 307, 464 F.2d 816, 822 (1972); Scott v. United States, 136 U.S.App.D.C. 377, 419 F.2d 264, 269-74 (1969); Baker v. United States, 412 F.2d 1069, 1073 (5th Cir.1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970); United States v. Wiley, 278 F.2d 500, 504 (7th Cir.1960). See also, State v. Mollberg, 310 Minn. 376, 246 N.W.2d 463 (1976); Drinkwater v. State, 73 Wis.2d 674, 245 N.W.2d 664 (1976). It is unthinkable in the eyes of the law, as these jurisdictions hold, to punish a man for requesting a jury trial, which is exactly what this circuit court judge did, based upon the strong advocacy of the Spink County State’s Attorney. Furthermore, the trial judge cannot impose a sanction for refusing to take a chemical test different than that prescribed by the legislature. See SDCL 32-23-11. A license revocation is the procedural sanction, not a jail sentence.

¶4I distinguish this situation from others, such as that in Clark v. State, 294 N.W.2d 916 (S.D.1980), where an equal protection argument based on disparity of sentencing was denied. In Clark, the record was devoid of any indication that past records, demeanor, degree of criminal involvement, etc., were sufficiently similar so as to cause the sentence disparity to be unjust. Here, five individuals were sentenced on identical D.W.I. charges on May 17, 1983. Four, upon pleas of guilty, received sentences of two to three days in jail and fines of $200.00 to $250.00. Appellant, the only one of these five who pleaded not guilty, was assessed a fine of $300.00, costs totaling $298.53, sixty days in jail (forty days suspended upon certain conditions), and had his driver’s license revoked for forty-five days.

¶5The sentencing judge in this case established a standard sentence for all first-time D.W.I. offenders, which was two to three days in jail. By motion made and order entered, all first-offense D.W.I. convictions before this circuit judge from January 1, 1983, through May 17, 1983, were made a part of this record. Only one other defendant had as severe a penalty as appellant. Said defendant had a criminal record and an extensive driving offense record. Appellant had a clean record, was married, had children, and was permanently employed. But, appellant was punished with a twenty-day jail sentence for having the audacity to request his constitutional right. Thus, he has been denied “equal protection” under the law.2

¶6At appellant’s sentencing, the trial judge was silent as to the type of factors which motivated the obviously greater sentence imposed upon appellant. The majority opinion apparently takes comfort in this. I do not. Given the disparity in the sentencing, and the action of the trial judge, which speaks more fervently than his sentencing quiescence, this case falls within the purview of State v. Nichols, 247 N.W.2d 249 (Iowa 1976) and Hess, 496 F.2d 936. It would be a painless remedy, as set forth in Hess, to remand the case for resentencing *154so that the trial judge can “be afforded an opportunity to fully examine his sentencing procedure and to consider the factors which motivated the sentences imposed,” Hess, 496 F.2d at 938. Thus, I would not reverse this case, but would remand it so that the trial judge could objectively evaluate all pertinent circumstances (or improper considerations) which influenced his sentence. If the trial judge decides that he was influenced by improper considerations, he should accordingly set aside the sentence and resentence. Conversely, should he conclude that he did not penalize appellant for his insistence on his constitutional right to a jury trial, he should so find and enter an order thereupon.3

¶7When the trial judge is silent as to the reasons for sentencing, one can only review the record to perceive the background — to set the stage, if you will — for the sentence. Here, immediately before the sentencing, the State’s Attorney made an allegation that defendant twice falsely testified at trial. He further alluded to the fact that appellant had refused a blood-alcohol test. Pointedly, because of these allegations, the State’s Attorney requested a thirty-day jail sentence. He advocated:

In this case, unlike the cases of four people who appeared here this morning, in this case the defendant was first offered a right which he exercised, to refuse a blood test. He did that. He exercised his right and he suffered the consequences administratively for that but that refusal although done under a claim of right, still evidences the difference between his conduct and the conduct of the four people who were given blood tests who appeared this morning voluntarily taking a blood test. (Emphasis supplied mine.)

¶8Clearly, the prosecutor was asking the court to extract a price (beyond the price that statutorily must be paid by way of administrative edict) for refusing the blood-alcohol test.4 Our state legislature has adopted sanctions under SDCL 32-23-10, the implied consent law. A sentencing court should not impose additional sanctions when a defendant simply exercises his right to a jury trial. For a trial judge to consider such remarks, is an impermissible consideration.

¶9Again, to enhance punishment against this appellant, the prosecutor told the judge:

The State is considering the possibility of requesting the Court to look at that testimony through the eyes of a Grand Jury but has concluded, I guess, at this point, that no further process will be eminating [sic] from that testimony.

¶10This was a prosecutorial thrust for enhanced punishment followed by quick withdrawal. Appellant was defenseless against such a remark. Again, at a later time in the sentencing process, the prosecutor stated (last words to the judge before appellant was sentenced):

Now, secondly, the defendant need not have taken the stand in this case. He had an absolute constitutional right to remain silent. In fact, that is, as the Court knows, basic law and would not have been commented upon. He chose voluntarily to defend the case by going on the stand and taking an oath and swearing under oath. That in and of itself changes the complexity or the context of the defendant’s rights and he chose to waive that right and once he takes the stand as a defendant, the State anticipates that he will speak truthfully about his defense. The Court heard the case. The Court knows the areas of the *155State’s concern and we are not trying— I’m not trying a perjury case this morning but all of those things the Court is entitled to take into consideration in determining what type of sentence and character of sentence should be given in this case and it’s upon those grounds that the State feels firm about its recommendation. (Emphasis supplied mine.)

¶11Indeed, the trial judge made no commitment one way or the other towards this advocacy.5 The holding in Hesswould require that the judge have a bona fide belief that the defendant committed perjury during the trial before he could consider perjury in his sentencing process. Carsten, 264 N.W.2d 707, should not be applied, for the sentencing transcript is devoid of any statements or beliefs of the trial judge that appellant committed perjury. In Grayson, cited in the special concurrence, the trial judge, at sentencing, expressed that the defendant had fabricated a defense. Whereas, in this case, there was no such expression. I remind all that the only difference from the first four cases and appellant’s case was that appellant exercised his right to a trial by jury and also his right to refuse to submit to a blood test. Any lawyer who has ever been in the pit knows why the prosecutor addressed these remarks to the judge. He was obviously trying to influence the judge to come down hard on this defendant, to punish him for not falling in line like the other defendants who pleaded guilty. He got the job done. This does not discount appellant’s right to appeal and, under the overwhelming weight of reasoned law in this Nation, there is a presumption that the trial judge took into account these “impermissible considerations.” 6See State v. Nichols, 247 N.W.2d 249, which, under these circumstances, would demand a remand of this case for resentencing. Were this not so, the inscription above the United States Supreme Court Building would have a hollow ring. How precious is the right to a jury trial for it was purchased in blood by the patriots of the American Revolution and maintained throughout the history of this Republic by the men and women who have borne the brunt of battle to keep it alive. An apropos thought by Samuel Adams, an early patriot, were these words: “Let us contemplate our forefathers, and posterity, and resolve to maintain the rights bequeathed to us from the former for the sake of the latter.”