884 F.

2d 5

Lane T. MELE, Petitioner, Appellee,

v.
FITCHBURG DISTRICT COURT, et al., Respondents,
Appellants.
No. 88-2079.

United States Court of Appeals,

First Circuit.
Heard May 2, 1989.
Decided Aug. 16, 1989.

Marc C. Laredo, Asst. Atty. Gen., Crim. Bureau, with whom James M.
Shannon, Atty. Gen., Boston, Mass., was on brief, for respondents,
appellants.
Ellen K. Wade with whom Henry F. Owens III, Alan Biedermann and
Owens & Associates, Boston, Mass., were on brief, for petitioner,
appellee.
Before BREYER and TORRUELLA, Circuit Judges, and RE,* Judge.
TORRUELLA, Circuit Judge.

Fitchburg District Court ("Fitchburg") appeals the decision by the United States
District Court for the District of Massachusetts, which held that the
Massachusetts court had violated the rules established in North Carolina v.
Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and therefore
vacated Lane Mele's sentence.

I.
2

In Pearce, the Supreme Court held that a defendant's due process rights were
violated when a judge enhanced a sentence because of vindictiveness after the
defendant's successful appeal. Nevertheless, there exists no constitutional bar to
a "more severe sentence upon reconviction." Id. at 723, 89 S.Ct. at 2079. The
Court held, however, that the reasonable apprehension of vindictiveness could

chill defendants' from appealing or otherwise challenging erroneous judgments

or sentences. Therefore, the Court created the prophylactic rule at issue in this
case, that a judge who enhances a sentence upon reconviction after a successful
appeal must articulate for the record reasons justifying the increased term. Id. at
726, 89 S.Ct. at 2081. Specifically,
3
whenever
a judge imposes a more severe sentence upon a defendant after a new trial,
the reasons for his doing so must affirmatively appear. Those reasons 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 legitimacy of the increased sentence may be fully
reviewed on appeal.
4

Id.

Since this decision, the Court has limited the application of this rule under
many circumstances. Of the most relevance to this case, the Court has held that
Pearce is not applicable to cases in which the defendant is retried as part of a
two-tier, de novo system. Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32
L.Ed.2d 584 (1972). The system in Kentucky under Colten provided that an
arresting officer would decide whether to assign a defendant in a misdemeanor
case to be tried in an inferior court. If convicted, the defendant had an absolute
right to a trial de novo in a court of general criminal jurisdiction. The Court
considered the following four factors before concluding that the possibility of
vindictiveness is not inherent in this type of system: 1) different courts were
responsible for the two trials; 2) the second court was not asked to find error,
but rather just to retry the case; 3) new trials were a regular and common part of
the system; and 4) the second court may not have been informed of the
sentence in the first. Id. at 116-18, 92 S.Ct. at 1960-61. Thus, the Court showed
that it was unwilling to blindly apply Pearce to all situations involving
resentencing and instead would first determine if there existed a reasonable
basis for apprehending vindictiveness. See also Alabama v. Smith, --- U.S. ----,
109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) (holding that no presumption of
vindictiveness arises when first sentence is based upon a guilty plea and
therefore Pearce does not apply); Texas v. McCullough, 475 U.S. 134, 106
S.Ct. 976, 89 L.Ed.2d 104 (1986) (holding that Pearce does not apply when
both sentences determined by different juries).

II.
6

Mele was charged in Massachusetts with motor vehicle homicide, speeding,

failure to stay within marked lanes, and operating to endanger. These charges
stemmed from a car accident in which he was driving one of the cars involved
and which resulted in the death of one teenager and serious injuries to another.
The Massachusetts two-tier criminal justice system allows a defendant to waive
a jury trial at the first tier and then, if found guilty, the defendant will have an
automatic right to be retried before a six person jury. Mele opted for a bench
trial and, after admitting sufficient facts, was convicted. He was sentenced to
two years incarceration. The sentence was suspended and he was placed on two
years probation. He was also ordered to perform 100 hours of community
service.
7

Mele did not ask to be retried before a jury and instead filed a motion for a new
trial over a year after his conviction. Although the court at first denied this
motion, the Massachusetts Appeals Court granted the motion and vacated the
judgment against him. The appeals court, in a rescript opinion,1 found that the
judge below had erred and that Mele was entitled to a new trial.2 Because the
court concluded that in substance Mele had taken advantage of the de novo
system available to him, they reassigned his case to be heard before a jury of
six with a different judge presiding. He was again convicted and was sentenced
by the judge to two and one half years, with all but twenty days suspended. The
judge credited Mele with the service of his previous probation and suspended
sentence, in accordance with Pearce, 395 U.S. at 717, 89 S.Ct. at 2076.

The judge found that he was not required to enunciate reasons for the enhanced
sentence because Mele's second conviction had resulted from a trial de novo.
Nevertheless, the judge chose to act prudently and file a written statement of
reasons. He statedIn the judgment of the Court this case is very serious.... In
operating the vehicle as he did Mele was not only heedless of his own safety but
that of his two passengers as well.

9 The Court is also aware that at trial time Mele was awaiting trial on a prior
....
charge of driving negligently so as to endanger the lives and safety of the public on
October 9, 1982, approximately one month before [the subject accident occurred].
10 imposing a harsher sentence this day on the subject charge, I do so because of my
In
personal conviction that the crime warrants actual service of at least a portion of the
defendant's sentence, in this case twenty days. I have not reached this decision
vindictively nor in reprisal for the defendant having successfully appealed for a new
trial. Before acting, I heard disposition evidence from a witness on behalf of the
defendant and I have received, read, and filed statements from the family of the
deceased pursuant to G.L. c. 258A s.4B. I reached my decision on disposition
independently of the action of the primary court and solely on the evidence and

argument before me.

11

The record also indicates that the court was aware that Mele had violated his
conditions of parole after his first sentence and was fined accordingly.

12

After exhausting his state court remedies, Mele filed a petition for habeas
corpus relief in the United States District Court for the District of
Massachusetts challenging this enhanced sentence. The court ordered that the
second sentence be vacated, unless the Massachusetts District Court
resentenced Mele within 60 days "in accordance with the dictates of Pearce."
Mele v. Fitchburg District Court, 696 F.Supp. 766, 770 (D.Mass.1988). The
court held that Colten did not apply because Mele was retried after an appeal,
rather than automatically due to the two-tier system, and also because he was
retried before the same court, although admittedly not the same judge. Id. at
768-69. The court concluded that there existed within the Massachusetts
District Court "a high degree of intra-court collegiality and loyalty," id. at 769
n. 7, where the second judge is "likely to identify strongly with his colleague."
Id. at 769. Thus, "the danger of vindictiveness, found dispositive in Pearce,
exists with equal force here" and the court found this danger to be heightened
by the fact that the first judge was reversed by means of a rescript opinion.3 Id.
It is from the decision of this court that Fitchburg now appeals.

III.
13

Fitchburg argues on appeal that Pearce does not apply to this case for any one
of three reasons. First, this case is analogous to Colten because of the
Massachusetts two-tier criminal system, under which Mele was convicted for
the second time after a trial de novo. Second, Fitchburg argues that Pearce
should not apply because different judges sentenced Mele after each trial and
there is dicta in McCullough, 475 U.S. at 140-42 nn. 3-4, 106 S.Ct. at 979-81
nn. 3-4, that suggests that the primary concern of Pearce was situations in
which the same judge determined both sentences. Lastly, Fitchburg contends
that Pearce should not apply to cases in which a defendant's first conviction
followed an admission of sufficient facts, which may lead to lenience by the
sentencing judge that should not then be imposed on the resentencing judge.
Even if Pearce is held to apply, however, Fitchburg argues that the
requirements have been met and therefore, the sentence should be affirmed.

14

Mele argues that Pearce was applicable and that the sentencing judge failed to
satisfy its requirements. He claims that the analysis of Colten is inapposite
because he did not take advantage of his right to a trial de novo and instead won
his new trial through the appellate process. Indeed, this system differs from that

of Kentucky in that the same court will hear the second trial, which will be
before a jury. The resentencing is by a judge, however, of the same court,
although admittedly not the same judge. Mele argues that Pearce 's
requirements were not met because the sentencing judge failed to affirmatively
state for the record acts by Mele occurring after the first sentencing proceeding
upon which the second judge relied in making his decision.
15

We rule that Pearce is inapplicable to the facts of this case. The Supreme
Court's recent decision in Alabama v. Smith, --- U.S. ----, 109 S.Ct. 2201, 104
L.Ed.2d 865 (1989), held that no presumption of vindictiveness arises, and thus
Pearce does not apply, to cases in which the first conviction was based upon a
guilty plea and the second followed a trial. In Smith, the same judge presided
over the second trial as well as the original sentencing. Thus, the same judge
was responsible for resentencing even though the defendant was allowed to
withdraw his plea upon appeal because of errors committed by the judge during
the defendant's change of plea hearing. The judge, upon resentencing,
explained that he was giving defendant a harsher sentence because of evidence
that came out at trial indicating the brutality of the crime committed and
therefore convincing him that the original sentence had been too lenient. Id. at ---, 109 S.Ct. at 2203-05.

16

The Court reiterated that a presumption of vindictiveness does not arise every
time a defendant receives a higher sentence after retrial. Id. Rather, Pearce
should be applied only under those circumstances "in which there is a
'reasonable likelihood,' ... that the increase in sentence is the product of actual
vindictiveness on the part of the sentencing authority." Id. at ----, 109 S.Ct. at
2205-07 (citation omitted). The Court concluded that this likelihood was not
present in cases in which the first conviction was subsequent to a guilty plea,
even if the same judge imposes both sentences, because the judge will have
much more relevant information available after a trial than after a plea. Id.

17 the course of the proof at trial the judge may gather a fuller appreciation of the
[I]n
nature and extent of the crimes charged. The defendant's conduct during trial may
give the judge insights into his moral character and suitability for rehabilitation....
Finally, after trial, the factors that may have indicated leniency as consideration for
the guilty plea are no longer present.
18

Id. (citations omitted).

19

We conclude that the rationale of Smith is fully applicable to the present case.
Mele's first conviction did not result after a full trial, but rather was based on
Mele's having admitted sufficient facts. The Massachusetts Supreme Judicial

Court defines "admission to sufficient facts" as an "admission to facts sufficient

to warrant a finding of guilty." Commonwealth v. Duquette, 386 Mass. 834,
438 N.E.2d 334, 338 (1982). This procedure is allowed in jury-waived sessions
after a plea of not guilty. See Mass.R.Crim.P. 12(a)(3). It is often used by
defendants who "have waived a jury trial at the first tier but wish to expedite
their claim to a de novo jury trial at the second tier." Duquette, 438 N.E.2d at
338.
20

The Supreme Judicial Court has held that an admission of sufficient facts is the
functional equivalent of and can be treated as a guilty plea. Duquette, 438
N.E.2d at 339-40; Commonwealth v. Greene, 400 Mass. 144, 508 N.E.2d 93,
95 (1987); Commonwealth v. Lewis, 399 Mass. 761, 506 N.E.2d 891, 892
(1987). "[S]uch an admission in the primary session [of the Massachusetts
District Court] ... is the fundamental equivalent of a guilty plea." 30 K. Smith,
Massachusetts Criminal Practice and Procedure Sec. 1202 supp. at 194 (1989).
The United States Supreme Court also has recognized the equivalence of
pleading guilty and admitting sufficient facts. See Ludwig v. Massachusetts,
427 U.S. 618, 621, 96 S.Ct. 2781, 2783, 49 L.Ed.2d 732 (1976).

21

Thus, the same considerations that led the Court in Smith to find no
presumption of vindictiveness are present here. The judge presiding over a trial
is presented with much more information about the defendant and the
circumstances surrounding the crime than when a defendant admits to sufficient
facts. Also, whereas a judge may feel leniency is appropriate for a defendant
who admits sufficient facts, this may not be as relevant to the defendant who
then goes to trial. Finally, in this case two different judges imposed sentence,
showing even less likelihood of possible vindictiveness than in Smith, where
the same judge, after being found to be in error on appeal, was responsible for
resentencing.4 We conclude that under these circumstances, when a defendant's
original sentence arises after the admission of sufficient facts and the defendant
then is given a greater sentence after trial, no presumption of vindictiveness
arises and Pearce does not apply.5

IV.
22

Lastly, we conclude that, even had we found a presumption of vindictiveness

necessitating Pearce 's application, the judge upon resentencing had satisfied
those requirements. The judge obviously understood the implications of Mele's
enhanced sentence and thus, even though he felt that Colten would apply, he
was cautious enough to carefully enunciate the reasons underlying his
sentencing decision. He spoke of the seriousness of the crime, as well as the
fact that Mele had other charges for reckless driving pending against him at the

time of the accident. He had the benefit of a full trial to become aware of the
details of the accident as well as the personal injuries and property damage
caused. He heard from the family of the boy who was killed as well as
evidence from a witness on Mele's behalf. Moreover, the record indicated that
after his first conviction, Mele had breached the terms of his parole condition to
perform community service.6
23

The sentencing judge was not required to do more.7 Pearce 's requirements were
established so that appellate courts, upon review, could have a record on which
to ensure that the reasons underlying an enhanced sentence were legitimate.
This goal is here satisfied. "Rules ... are devised to promote the ends of justice,
not to defeat them." Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721,
85 L.Ed. 1037 (1941).

24

Reversed.

The Honorable Edward D. Re, Chief Judge of the United States Court of
International Trade, sitting by designation

A rescript opinion is a written opinion that is based solely on existing

precedent. See Mele v. Fitchburg District Court, 696 F.Supp. 766, 767 n. 2
(D.Mass.1988)

Details of this reasoning behind this opinion are irrelevant to the appeal before
us

The Court below found it to be particularly upsetting for a judge to get reversed
by rescript. "[W]hen a Massachusetts trial justice is reversed by a rescript, he
knows that he has run afoul of some already charted shoal. Even more stinging,
of course, is to be summarily reversed without opinion." Mele v. Fitchburg
District Court, 696 F.Supp. 766, 767 n. 2 (D.Mass.1988)

We do not decide, however, Fitchburg's argument that whenever a second judge

is responsible for resentencing there should arise no presumption of
vindictiveness. We are relying on this factor in light of the particular
circumstances of this case

That is to say that we do not find it reasonably likely under these circumstances
that a judge will be vindictive and therefore, such a presumption is unnecessary
to protect defendants in these cases. This holding does not leave defendants
helpless to a vindictive judges upon retrial. Actual vindictiveness, if shown, is

always actionable under the due process clause. There is, however, no evidence
in this case of actual vindictiveness
6

There is some evidence in the record to indicate that the judge may have in part
based his decision on comments made by Mele to his probation officer to the
effect that he would continue to drive above the designated speed limit. This
information is unnecessary to our disposition of the case and therefore, we need
not conclude if it was appropriately before the judge upon resentencing

We reject appellee's argument that a more severe sentence can only be imposed
because of acts, enumerated for the record, occurring by the defendant after the
original sentence. In Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89
L.Ed.2d 104 (1986), the Court reviewed a case in which a jury had originally
sentenced a defendant, who was then retried after the original judge granted a
motion for new trial. The same judge, who presided over the second trial,
sentenced defendant to a greater sentence, relying in large part on additional
evidence that came out at the second trial, indicating the true extent of
defendant's involvement in the crime. Although the Court held that Pearce did
not apply, it also specifically held that, if applicable, Pearce 's requirements
would have been met. The Court explained that the language in Pearce stating
that a judge upon resentencing must state "identifiable conduct on the part of
the defendant occurring after the time of the original sentencing proceeding,"
Pearce, 395 U.S. at 726, 89 S.Ct. at 2081 "was never intended to describe
exhaustively all of the possible circumstances in which a sentence increase
could be justified." McCullough, 475 U.S. at 141, 106 S.Ct. at 980. The Court
continued that such a restrictive rule would lead under some circumstances to
"absurd results." Id. The Court concluded that any objective information could
justify the increased sentence. Id. at 142-43, 106 S.Ct. at 980-81
In this case, the second judge was in the position of discovering much more
information at trial, because the first conviction followed defendant's
admission of sufficient facts. The details of the accident were stated by the
judge as part of the reasoning for the sentence, as well as evidence presented by
one of Mele's witnesses and the deceased's family. The findings presented by
the judge clearly constitute objective information justifying the increased
sentence.