FILED

December 22, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JULY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9609-CR-00396

)

Appellee, )

)

) SUMNER COUNTY

VS. )

) HON. JANE W. WHEATCRAFT

JAMES W. CONNORS, III, ) JUDGE

)

Appellant. ) (Direct Appeal - Sentencing)

FOR THE APPELLANT: FOR THE APPELLEE:

JOHN E. HERBISON JOHN KNOX WALKUP

2016 Eighth Avenue South Attorney General and Reporter

Nashville, TN 37204

LISA A. NAYLOR

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243-0493

LAWRENCE RAY WHITLEY

District Attorney General

WAYNE HYATT

Assistant District Attorney

113 East Main Street

Gallatin, TN 37066

OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
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OPINION

On October 13, 1994, Appellant James W. Connors, III, pleaded guilty to

driving under the influence, second offense; driving on a revoked license; and

reckless endangerment. After a sentencing hearing on December 6, 1994,

Appellant received an effective sentence of 120 days imprisonment followed by

21⁄2 years of probation. Appellant appealed his sentence and this Court vacated

his sentence and remanded the case for resentencing. After a sentencing

hearing on May 28, 1996, Appellant received an effective sentence of 240 days

imprisonment followed by sixteen months of probation. Appellant challenges his

sentence, raising the following issues:

1) whether the trial judge should have recused herself from Appellant’s

resentencing hearing; and

2) whether the imposition of a harsher sentence after Appellant’s

successful appeal violates due process.

After a review of the record, we reverse the judgment of the trial court and

remand this matter for resentencing before another trial judge.

FACTS

Appellant pleaded guilty to driving under the influence, second offense;

driving on a revoked license; and reckless endangerment on October 13, 1994.

After a sentencing hearing on December 6, 1994, the trial court sentenced

Appellant to eleven months, twenty-nine days for driving under the influence, all

suspended except 120 days and followed by eleven months, twenty-nine days

probation; to eleven months, twenty-nine days for reckless endangerment, all

suspended except 120 days and followed by eleven months, twenty-nine days
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probation; and to six months for driving on a revoked license, all suspended

except 120 days and followed by six months probation. The periods of

incarceration were to run concurrently, while the periods of probation were to run

consecutively. 

After the sentencing on December 6, 1994, Appellant filed a notice of

appeal and a motion to set bond pending appeal. The trial court entered an order

setting bond at $100,000 and setting the following conditions: 1) Appellant was

to go directly from jail to an in-patient treatment facility; 2) upon completion of a

twenty-eight day in-patient treatment program, Appellant was to be placed on

intensive probation and was to make daily reports to his probation officer; 3)

Appellant was not to drive; 4) Appellant was to take antabuse or some other drug

as prescribed by a physician to keep him from drinking without serious side

effects; 5) Appellant was to have periodic unannounced drug and alcohol tests;

and 6) Appellant was to attend Alcoholics Anonymous every day. On December

15, 1994, this Court removed these six conditions of bond because they were

unrelated to assuring Appellant’s appearance in court. 

Subsequently, in State v. Connors, 924 S.W.2d 362 (Tenn. Crim. App.

1996), this Court vacated Appellant’s sentence and remanded this matter for

resentencing. This Court concluded that resentencing was required because the

trial court had failed to make specific reference to mitigating and enhancement

factors, had failed to place the specific findings of fact upon which Appellant’s

sentence was based on the record, and had failed to consider the principles of

the Sentencing Reform Act of 1989. Id. at 364. In addition, this Court held that
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periods of probation must run in the same manner (either consecutively or

concurrently) as the periods of incarceration. Id. 

 On May 6, 1996, this Court ordered that Appellant’s bail bond be

immediately reinstated and that the Sumner County Sheriff release Appellant

from custody pending further proceedings in the trial court. Appellant was not

released until May 9, 1996. 

On May 24, 1996, Appellant filed a motion for recusal of the trial judge. On

May 28, 1996, the trial court denied the motion after finding that the motion was

insufficient on its face to state grounds for recusal. Following the denial of the

recusal motion, the trial court sentenced Appellant to eleven months and twentynine days for driving under the influence, all suspended except 120 days followed

by eight months of probation; to eleven months and twenty-nine days for reckless

endangerment, all suspended except 120 days followed by eight months of

probation; and six months for driving on a revoked license, all suspended except

120 days followed by six months of probation. The trial court ordered to

sentences for driving under the influence and reckless endangerment to run

consecutively and ordered the sentence for driving on a revoked license to run

concurrently with the others. 

RECUSAL

Appellant contends that the trial court erred when it denied his motion for

recusal. Whether to grant a motion to recuse is discretionary with the trial judge.

Caruthers v. State, 814 S.W.2d 64, 67 (Tenn. Crim. App. 1991). This Court may

reverse only when the trial judge has clearly abused that discretionary authority.
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State v. Cash, 867 S.W.2d 741, 749 (Tenn. Crim. App. 1993). The trial judge

should recuse herself whenever “her ‘impartiality might reasonably be

questioned.’” Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994)

(quoting Code of Judicial Conduct, Canon 3(c)). Recusal is appropriate “when

a person of ordinary prudence in the judge’s position . . . would find a reasonable

basis for questioning the judge’s impartiality.” Id.

 Appellant’s motion for recusal alleged, among other things, that the six

conditions of bond pending appeal were significantly more onerous than the

actual sentence and that these conditions were imposed to penalize Appellant for

exercising his right to appeal; that the trial court, in an ex parte communication,

ordered the Sumner County Sheriff to continue to confine Appellant despite this

court’s order that he be released; and that the trial court had participated in ex

parte conversations about the case with the district attorney general’s office. 

The trial court denied that any of these allegations were true and it ruled that the

motion should be denied because it was insufficient on its face in stating the

grounds for recusal. 

The trial court clearly abused its discretion in ruling that these allegations

presented facially insufficient grounds for recusal. Appellant’s motion contained

serious allegations of judicial misconduct. Certainly, “‘assuming the truth of the

facts alleged, a reasonable person would conclude that [this] particular judge is

biased or prejudiced against [this] particular [Appellant].’” Id. at 821 (quoting

United States v. Baker, 441 F. Supp. 612, 616 (M.D. Tenn. 1977)). It was not

enough for the trial court to determine that she had no subjective bias against

Appellant, she was also required to determine whether her impartiality might
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reasonably be questioned under an objective standard. Id. at 822. In short, we

hold that the trial court abused its discretion by denying the recusal motion

without giving Appellant an opportunity to present proof on the matter.

JUDICIAL VINDICTIVENESS

Appellant contends that the trial court’s imposition of a harsher sentence

after his successful appeal violates his right to due process. In North Carolina v.

Pearce, 395 U.S. 711, 724–25, 89 S. Ct. 2072, 2080, 23 L. Ed. 2d 656 (1969),

the United States Supreme Court held that it is a violation of basic due process

to punish a person because he has done what the law plainly allows. The

Supreme Court stated that the Due Process Clause of the Fourteenth

Amendment prevents increased sentences which are actually or likely motivated

by a vindictive desire to punish a defendant for the exercise of a statutory or

procedural right. Id., 395 U.S. at 723–24, 89 S. Ct. at 2080. The Pearce Court

stated:

Due process of law, then, requires that vindictiveness against a defendant

for having successfully attacked his first conviction must play no part in the

sentence he receives after a new trial. And since the fear of such

vindictiveness may unconstitutionally deter a defendant’s exercise of the

right to appeal or collaterally attack his first conviction, due process also

requires that a defendant be freed of apprehension of such a retaliatory

motivation on the part of the sentencing judge. 

Id., 395 U.S. at 725, 89 S. Ct. at 2080. To prevent vindictiveness from entering

into the decision and to allay any fear on the part of a defendant that an

increased sentence is the product of vindictiveness, the Court fashioned a

prophylactic rule that “whenever a judge imposes a more severe sentence upon

a defendant after a new trial, the reasons for his doing so must affirmatively

appear.” Id., 395 U.S. at 726, 89 S. Ct. at 2081. Otherwise, a presum ption

arises that a greater sentence has been imposed for a vindictive purpose—a
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presumption that must be rebutted by “‘objective information . . . justifying the

increased sentence.’” Texas v. McCullough, 475 U.S. 134, 142, 106 S. Ct. 976,

981, 89 L. Ed. 2d 104 (1986) (quoting United States v. Goodwin, 457 U.S. 368,

374, 102 S. Ct. 2485, 2489, 73 L. Ed. 2d 74 (1982)).

 In Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 1021 L. Ed. 2d 865

(1989), the Supreme Court limited the application of Pearce to 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., 490

U.S. at 799, 109 S. Ct. at 2205. “Where there is no such reasonable likelihood,

the burden remains upon the defendant to prove actual vindictiveness.” Id.

In this case, the trial court did not articulate any justification for increasing

Appellant’s term of imprisonment from 120 to 240 days on resentencing. Indeed,

the State has also failed to offer any explanation as to why the increased

sentence was justified. In fact, it appears from the record that the only thing

considered during resentencing that was not considered in the original

sentencing hearing was the fact that Appellant had been successful on appeal:

MR. HERBISON: Your Honor, that is an effective sentence of 240 days,

with the balance of the sentence to be served on probation?

THE COURT: Yes, it will. My original thought was I didn’t really want him

to serve more than 120 days, but the opinion that came out of the

[Criminal] Court of Appeals indicates that he can’t do the time concurrently

and the rest of the sentence consecutively; so I’m trying to be in

compliance with the opinion. And that being the case, he is going to have

to do 240 unless you can--
1

Indeed, the trial court stated in its order imposing the conditions that “[Appellant] is a man of

substantial means who, in the Court’s opinion, is attempting to circumvent the system of justice and buy

him self tim e. In th e interim, all this Cou rt can do is tr y to set conditions to protec t soc iety fro m h im u ntil

the Court of Criminal Appeals ca n review his sentence.” (I 20)

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MR. HERBISON: May it please the Court, I don’t mean to be

presumptuous [sic] here, but if the Court deemed an effective 120-day

sentence to be appropriate, certainly two consecutive 60-day sentences

would achieve that objective.

THE COURT: I think that he should do 120 on the DUI, since it is his 5th

DUI.

We hold that in this case, there is a “reasonable likelihood” that the

increased sentence was the product of actual vindictiveness. This is especially

true given the trial court’s previous imposition of the six invalid conditions of

Appellant’s appeal bond1

 and the trial court’s improper denial of Appellant’s

recusal motion. This Court is hard-pressed to accept either the trial court’s failure

to objectively justify Appellant’s increased effective sentence or the State’s failure

to offer any explanation at all. Indeed, the Supreme Court noted in Smith that

when the same sentencing judge presides at both the original trial and the

subsequent retrial, the judge “can be expected to operate in the context of

roughly the same sentencing considerations after the second trial as he does

after the first; any unexplained change in the sentence is therefore subject to a

presumption of vindictiveness.” Id., 490 U.S. at 802, 109 S. Ct. at 2206.

Therefore, it is the opinion of this Court that there is a presumption of actual

vindictiveness in this case that has not been rebutted.
2Bec ause of o ur dis pos ition of this c ase, we need not addre ss Appellant’s claim s that his

sentences were excessive or that the trial court erred in imposing consecutive sentences.

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Because of our conclusion that the State has not overcome the

presumption that Appellant’s sentence was the product of actual vindictiveness

and that the trial court erred in denying Appellant’s motion for recusal, we remand

this case for transfer to another trial judge who will conduct a new sentencing

hearing in accordance with the Sentencing Reform Act of 1989.2

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

JOHN H. PEAY, JUDGE

___________________________________

WILLIAM M. BARKER, JUDGE