PEOPLE v. CALLOWAY, 42 Colo. App. 213 (1979)

(591 P.2d 1346)

The People of the State of Colorado v. Vernon Eugene Calloway

No. 78-890Colorado Court of Appeals.
Decided February 22, 1979.

After reversal of earlier conviction, defendant was retried, again convicted, and given identical suspended sentence with probation, except that, unlike the earlier sentence, his probation was conditioned upon serving 90 days in the county jail with the opportunity of fulfilling this requirement in an alternate sentencing program. Defendant sought review of this sentence.

Order Reversed

1. CRIMINAL LAW — Due Process Requirement — Defendant — Free of Apprehension — Retaliatory Motivation — Sentencing Judge — Precluded — Imposition — More Severe Sentence. Due process requires that, in exercising his right to appeal, a defendant be free of apprehension of retaliatory motivation on the part of sentencing judge; thus, although sentencing judge was not the same one who had presided at earlier trial that had resulted in conviction that was reversed on appeal, the sentencing judge was, nevertheless, precluded from imposing a sentence more severe than defendant’s original sentence.

Appeal from the District Court of the County of Arapahoe, Honorable Richard D. Greene, Judge.

J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, David K. Rees, Assistant Attorney General, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Nicholas R. Massaro, Jr., Deputy State Public Defender, for defendant-appellant.

Division I.

Opinion by CHIEF JUDGE SILVERSTEIN.

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Defendant, Vernon Eugene Calloway, was convicted of aggravated robbery, given a suspended sentence, and placed on supervised probation for five years. His conviction was reversed by this court. On retrial, before a different trial judge, defendant was again convicted of aggravated robbery and given the identical suspended sentence. However, unlike the earlier probation, his probation is now conditioned upon serving 90 days in the county jail with the opportunity of fulfilling this requirement in an alternate sentencing program. Defendant appeals from the denial of his Crim. P. 35(a) motion for reconsideration of this sentence. The People have confessed error, and we reverse.

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656
(1969), the Supreme Court held that it would violate due process if a trial court were to impose a heavier sentence upon reconviction as punishment for a successful appeal. To assure the absence of retaliatory motivation on the part of the sentencing judge, the Pearce Court concluded that when a heavier sentence is imposed upon reconviction, the reasons for so doing must affirmatively appear on the record and must relate to objective, identifiable conduct of the defendant occurring after the original sentencing proceeding.

[1] Here, the sentence imposed on retrial is more severe than defendant’s original sentence. It is not disputed that the record contains no information which would warrant the imposition of an increased sentence. The trial judge erred in concluding that because it was not his judgment of conviction which had been set aside he was not bound by the holding o Pearce. Due process requires that a defendant be free of apprehension of retaliatory motivation on the part of the sentencing judge in exercising his right of appeal. North Carolina v. Pearce, supra. Hence, the holding is applicable where, as here, a different judge sentences defendant on retrial.

The order denying defendant’s Crim. P. 35(a) motion is reversed, and the cause is remanded with directions to sentence defendant in accordance with the views expressed herein.

JUDGE VAN CISE and JUDGE STERNBERG concur.

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