Cockerel v. State

M. Steele Hays, Judge. This is the second appeal of Lawrence Shawn Cockerel. On December 15, 1977, appellant and Bryan Sbado were convicted of first degree battery in the shooting of Patrick Pinson on the Western Hills Golf Course. The jury fixed the punishment at four years. On appeal the Arkansas Supreme Court overturned the conviction of this appellant and affirmed the conviction of Sbado. After the reversal, the case was transferred from First Division of the Circuit Court to the Fourth Division, and hence, appellant was tried and sentenced by a different judge. The second sentence was for a term of ten years. For reversal, appellant argues a single point — that the imposition of a greater sentence upon the second conviction is a denial of the constitutional guarantee of due process. The argument is compelling. The matter of harsher sentences to persons convicted a second time has been the subject of much litigation and comment.1 The relevant constitutional questions involve double jeopardy, due process, and sometimes equal protection. The arguments were put to rest, at least for now, in the United States Supreme Court decision of Pearce v. North Carolina, 395 U.S. 711 (1968), delivered by Justice Stewart. Respondent Pearce was sentenced to 12-15 years upon a charge of assault with intent to commit rape. The conviction was overturned several years later, and upon retrial he was convicted and sentenced to an eight year prison term. It was agreed that the second term, when added to the time served under the original sentence, exceeded the original sentence. A majority of the court reaffirmed the doctrines announced in United States v. Ball, 63 U.S. 662 (1896) — that an accused is not put in double jeopardy by a retrial obtained at the request of the accused nor does the Equal Protection Clause impose an absolute bar to a more severe sentence upon reconviction. Williams v. New York, 337 U.S. 241 (1949). But that did not end the inquiry, as the majority reasoned that it would be a violation of due process of law for an accused to be penalized by reason of having exercised a fundamental right to appeal and that such right must be free and unfettered, irrespective of whether the error of the first conviction was on the basis of constitutional or non-constitutional grounds. The opinion stated that due process requires that vindictiveness must play no part in the sentence that the defendant receives in the second trial and, further, that due process requires that the defendant be free of “the apprehension of such a retaliatory motivation on the part of the sentencing judge.” To assure the absence of such, Pearce holds that whenever a judge imposes a more severe sentence upon a new trial, the reason for his doing so must affirmatively appear and “must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding, and the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional rights of the accused may be freely reviewed on appeal.” ___ The holding in Pearce was applied by the Supreme Court of Arkansas in Marshall v. State, 265 Ark. 302 (1979). Marshall entered a plea of guilty to aggravated robbery and was sentenced to twenty years. The conviction was vacated under Rule 37 of the Rules of Criminal Procedure and Marshall was retried. He was again convicted and a sentence of thirty five years was imposed. Noting that United States v. Tateo, 377 U.S. 463 (1964) recognized that neither the fifth amendment nor the fourteenth amendment absolutely prohibits a greater sentence on retrial because “the slate of the accused has been wiped clean” by the reversal, the court accepted the requirements of the Pearce decision and directed a reduction of Marshall’s sentence to the original sentence because the record failed to disclose any evidence of Marshall’s conduct subsequent to the original sentencing proceeding, or that he was “less credible or the crime more severe.” This is precisely true of the record here presented. A careful search provides a resounding absence of any objective information as to the conduct of Cockerel subsequent to the first trial or, for that matter, of any data upon which it might affirmatively appear the trial court relied in imposing the greater sentence. The testimony óf Dennis Flowers was, he says, identical to his testimony at the earlier trial, and the defendant, who took the stand, testified in accord with a written statement he gave immediately after the occurrence. Nor does it ever appear affirmatively that his admission that he was a parolee from a conviction for armed robbery (prior to the shooting of Pinson) was not before the jury. In short, there is nothing in the record that complies with or even approaches the imperatives of Pearce and Marshall. It should not be inferred that the trial court exhibited vindictiveness in the slightest degree in the sentence it imposed, nor that the sentence was intrinsically excessive (in view of the flagrant and senseless aspects of a deliberate, wanton act), except in so far as it exceeds the earlier sentence. Moreover, the trial judge’s comments in the sentencing proceedings permit no other conclusion but that he was unmindful of, or indifferent to, the Marshall and Pearce decisions. The judgment of the lower court is affirmed with directions to modify the sentence to conform to the original sentence. Footnotes [1] Van Alstyne, In Gideon’s Wake: Harsher Penalties and the “Successful” Criminal Appellant, 74 Yale L. J. 606 (1965); Note, Unconstitutional Conditions, 73 Harv L. Rev. 1595 (1960).