No, 12195
INTHE SUPREME COURT OF 

### THE STATE OF MONTANA 1972

THE STATE OF MONTANA,Plaintiff and Respondent,

-vs

# - BRUCE DAVID FISSETTE,Defendant and Appellant,

Appeal from: 

### District Court of the Eighteenth JudicialDistrict, Honorable

### W. W, Lessley, Judge presiding. Counsel of Record

### : For Appellant

### : Brown and Gilbert, Bozeman, Montana, William E. Gilbert argued, Bozeman, Montana, For Respondent

### : Hon, Robert L. Woodahl, Attorney General, Helena,

Montana. David V, Gliko, Assistant Attorney General, argued,

Helena, Montana, Thomas A. Olson, County Attorney, Bozeman, Montana. Thomas D, Gai, Deputy County Attorney, appeared,

Bozeman, Montana.

Submitted: April 25, 1972
Decided: 

### JllL

### 2O

## 1972. Filed: 

### ;jhl'~ 

## 214

### 1972Mr. Justice Gene B. Daly delivered the Opinion of the Court.

Defendant, Bruce David Fissette, was tried in thejustice of the peace court in Gallatin County, Montana. Following ajury verdict of "guilty" of the misdemeanor crime of "physical control of vehicle while under the influence of intoxicating llquor", he was sentenced by the justice of the peace to pay a fine of $210*Defendant appealed thisjudgment of conviction to the district court of the eighteenth judicial district, county of Gallatin and after a trial de novo thejury found defendant guilty. The court entered judgment on the verdict of a $500 fine and ajail sentence of sixmonths, with allbut thirty days suspended. Defendant appeals from the finaljudgment, There isbut one issue presented on appeal: Was it error for the district court to increase the sentence or punishment after trial de novo inthe district court under the facts of this case? The United States Supreme Court decision relied on by defendant, North Carolina v. Pearce, 395 U.S. 

### 711, 89 S.Ct. 2072, 23 L ed 2d 656, 669, states: "Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentencehe receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right toappeal or collaterally attackhis first conviction, due process alsorequires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

I IIn order to assure the absence of such a motivation, we have concluded that whenever ajudge imposes a more severe sentenceuDon a defendant after a new

- - trial, the reasons forhis 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 thefactual data upon which the increased sentence isbased must be made part of the recrod, so that the constitutional legitimacy of the increased sentence may be fullyreviewed on appeal." (Emphasis added )

# .

1t Pearce was not a de novo" cause inthe context we are speaking of de novo inthis opinion, yet the language does not exclude a "de novo" casewhen it speaks interms of a new trial.

It Defendant argues that alltrials "anew" are de novo", viewed literally. The United States Supreme Court inColten v. Kentucky, U.S. P S.Ct. 9 L ed 2d 

## ,No, 71-404, (Kentucky Court of Appeals, Decided June 12, 1972), decided the issuepresented here, Colten involves a two-tier system, the same as our justice and district court system and inKentucky appeal from the lower
court 

### isa matter of right and the trial on appeal isde novo, as it

### is inMontana. Indiscussing the issues inColten the United States Supreme Court said: "Colten rightlyreads Pearce to forbid, following a successful appeal and reconviction, the imposition of a greater punishmentthan was imposed after the first trial, absent specified findings that have not been made here. He insists that the Pearce rule 

### is applicable here and that there isno mntdifference between the Pearce model and the Kentucky twotier trialde novo system. Both, he asserts, involve reconviction and resentencing, both provide the convicted defendant with the right to 'appeal' and in both---even thouah under the Kentuckv scheme the Iappeal' isinrGality a trialde noGo---a penalty for the same crime isfixed twice, with the same potential for an increased penalty upon7 a successful 'appeal1. "~ut Pearce did not turn simply on the fact of conviction, appeal, reversal, reconviction, and a greater sentence. The court was there concerned with two dedefendants who, aftertheir convictions had been set aside on appeal, were reconvicted for the same ottenses and sentenced to longer prison terms. In one case the term was increased from 10 to 25 years, Positing; that a more severe penalty afterreconviction would violate due process of law ifimposed aspurposeful punishment forhaving successfully appealed,the court concluded

### that suchuntoward sentences occurredwith sufficient frequency towarrant the impositionof a prophylactic rule to ensure 

## 'thatvindictiveness against a 

### defendant for having successfullyattacked his first conviction

# * * * [would]play no part in the sentencehe receives after a new trial 

# ***' and to ensure that the apprehension of such I 

### vindictiveness does not deter a defendant's exercise of the right to appeal or collaterally attack his first conviction

# ***' 395 U.S., at 725. "Our view of the Kentucky two-tier system of administering criminal justice, however, does not lead us to believe, and there is nothing in the record or presented in the briefs to show,that the hazard of being penalized for seekinga new trial, which underlay the holding of Pearce,also inheres in the de novo trial arrangement. Nor arewe convinced that defendants convicted in Kentucky's inferior courtswould be deterred from seeking a second trial out of fear of judicialvindictiveness. The possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system. "We note first the obvious: that the court which conducted Colten's trial and imposed the final sentencewas not the courtwith whose work Colten was sufficientlydissatisfied to seek a different result on appeal;and it is not the court that is asked to do overwhat it thought it had already done correctly. Nor is the de novo court even asked to find error in another court'swork. Rather, the Kentucky court inwhich Coltenhad the unrestricted right tohave a new trialwas merely asked to accord the same trial, under the same rules and procedures, available to defendants whose cases are begun in that court in the first instance. It would also appear that however understandably a court of general jurisdictionmight feel that the defendant who has had a due process trial ought to be satisfiedwith it, the de novo court in the two-tier system is much more likely 

## meet the attitude of the Kentucky Court of Appeals in this case when it stated that 'the inferior courts are not designed or equipped to conduct error-free trials, or to ensure full recognition of constitutional freedoms. They are courts of convenience,to provide speedy and inexpensivemeans of disposition of charges of minor offenses.' Coltenv. Commonwealth, 467 S,W.2d 374, 379 (Ky. 

### 1971). We 

### seeno reason, and 

### none is offered, to assume that the de novo courtwill deal any more strictlywith thosewho insist on a trial in the superior court after conviction in the Quarterly Court than itwould with those defendants whose cases are filed originally in the superior court andwho choose to put the State to its proof in a trial subject to constitutional guarantees,

I I

### It is suggested,however, that the sentencing strictures imposed by Pearce are essential in order to minimize an

### asserted unfairness to criminal defendantswho must endure a trial in an inferior courtwith less than adequate protections in order to secure a trial comporting completelywith constitutional guarantees. We are not persuaded,however, that the Kentucky arrangement for dealingwith the less serious offenses disadvantages defendants anymore or any less than trials conducted in a court of general jurisdiction in the first instance, as long as the latter are always available. Proceedings in the inferior courts are simple and speedy, and, if the results in Colten's case are any evidence, the penalty is not characteristically severe. Such proceedings offer a defendant the opportunity to learn about the prosecution's case and, if he chooses, he need not reveal his own. Hemay also plead guilty without a trial and promptly secure a de novo trial in a court of general criminal jurisdiction, He cannot,andwill not, face the realistic threat of a prison sentence in the inferior court without having the help of counsel,whose advicewill alsobe available in determiningwhether to seek a new trial,with the slate wiped clean,or to accept the penalty imposed by the inferior court. The Statehas no such options. Should it not prevail in the lower court, the case is terminated, whereas the defendant has the choice of beginning anew. In realityhis choices are to accept the decision of the judge and the sentence imposed in the inferior court or to reject what in effect is no more than an offer in settlement of his case and seek the judgment of judge or jury in the superior court, with sentence to be determined by the full record made in that court. We cannot say that the Kentucky trial de novo system, as such, is unconstitutional or that it presents hazards warranting the restraints called for in North Carolina v. Pearce,particularly since such restraintsmight, to the detriment of both defendant and State,diminish the likelihood that inZerior courts would impose lenient sentenceswhose efkectwould be to limit the discretion ot a superior court judge or jury if the defendant is retried and found guilty*"(~mphasisadded) The judgment of the district court is affirmed.

### Associate Justices.