Court bars stiffer sentence in drunken driving retrial

PORTLAND — A man convicted again of drunken driving after he successfully appealed his original conviction cannot be given a sentence stiffer than the one he received the first time, the Maine Supreme Judicial Court ruled Wednesday.

The high court, in a 5-1 decision denying an appeal by the state, reaffirmed its commitment to its 1970 ruling that barred heavier second sentences except in cases where the defendant engaged in misconduct after the original sentencing.

“The rule … prevents the sentencing disparities that are inherently likely to occur when two different judges engage in sentencing on the same sentencing facts, and avoids the unseemly appearance that the defendant’s ultimate sentence is greater than his first for no better reason than a change in the identity of the sentencing judge,” Chief Justice Vincent L. McKusick wrote for the court majority.

The court said the rule protects a convicted defendant’s right to an appeal against any “chilling effect” resulting from the prospect of a heavier second sentence and safeguards the defendant from the possibility of retaliatory vindictiveness after being convicted again.

“This is a civil liberties issue,” said attorney Susan Parcels, who had filed a brief on behalf of the Maine Civil Liberties Union in opposition to the state’s appeal.

Ms. Parcels said the ruling protects defendants against “institutional vindictiveness” in which judges could act in support of other judges or against what they regard as frivolous appeals.

Assistant York County District Attorney Anne Jordan had argued that the state’s rulings should be updated to conform with the most recent U.S. Supreme Court rulings which allow stiffer sentences when imposed by a different judge.

“It was a question of whether you stay with a 1960s standard if it’s been modified,” Ms. Jordan said.

Her position was endorsed by the lone dissenter, Justice Samuel W. Collins, who suggested that the court elected to stick with its existing rule for its “ease of application,” rather than as a safeguard against vindictive sentencing.

Collins proposed that the court consider a less formalistic approach that would allow the courts to consider on a case-by-case basis the likelihood of vindictiveness on the part of the judge issuing the second sentence.

Wednesday’s ruling came in the case of James E. Violette, who was convicted two years ago in Biddeford District Court for operating a motor vehicle while under the influence of liquor. His sentence included 60 days in jail, with all but 30 days suspended, and nine months of probation.

On appeal, the Superior Court set aside his conviction, paving the way for a new trial in 1989 in which he was convicted of the same offense. The court, presided over by a different judge, sentenced Violette to six months in jail, with all but 45 days suspended, and one year of probation.

After Violette again appealed, the Superior Court affirmed the conviction but sent the case back to the lower court for resentencing on the ground that the judge erred in imposing a heavier sentence.

The state took the case to the high court, arguing that the trial court was not constitutionally barred from imposing a more severe second sentence as long as judicial vindictiveness played no part in the process.

The judge who handed down the second sentence had noted on the record that he had no knowledge of the sentence given to Violette after the first conviction. The record also showed that the judge took into account the fact that this was Violette’s third drunken driving conviction and that the arresting officer was required to engage in a high-speed chase.