No. 13651 IN THE SUPREME COURT OF THE STATE OF XONTANA

IN THEMATTER OF STEVEN HOWARD JONES, Petitioner.

Appeal from: District Court of the Eleventh ~udicial~istrict, Honorable JamesM. Salansky,Judgepresiding. Counsel of Record: For Appellant: H. James Oleson argued, Kalispell,Montana For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Patrick Springer,CountyAttorney, Kalispell,Montana StewartA. Pearce 11, Deputy County Attorney, argued,

Kalispell, Montana

Submitted: March 2, 1978Mr. JusticeJohn C. Harrison delivered the Opinion of the Court. This is an appeal from the order of the District Court, Flathead County, dismissing the petition of Stephen Howard Jones, petitioner, forpost-conviction relief. The factual background topetitioner's case is: On October 24, 1975, leavewas granted for the directfilingof

an Information charging petitioner with the crimes of aggravated assault and robbery. On that same date, petitioner appeared before the court and counsel was appointed. On November 4, petitioner plead guilty tothe charge of robbery. The charge of aggravated assaultwas dismissed without prejudice. On November 5, petitioner testified inthe trialof Melody Boykin, one of the four other persons arrested for the same offense aspetitioner. Following a November 25 presentence hearing, petitioner was sentenced to40 years for the crime of robbery. This sentencewas subsequently reviewed by the Sentence Review Board on February 20, 1976. The Board decided the sentencewas toremain asoriginally imposed following a hearing where petitioner was represented by his original court appointed counsel. Petitioner next filed a petition forpost-conviction relief. An evidentiaryhearing was held by the District Court on thispetition. Following the hearing the District Court issued findings of fact, conclusions of law and an order dismissing the petition. Petitioner raises four issues on appeal: 1. Was petitioner afforded effectiveassistance of counsel? 2. Was petitioner denied due process of the law in lightof the factors considered by the DistrictCourt for sentencing?3. Was the sentence of 40 years for the crime of robbery cruel and unusual punishment? 4. Was petitioner prejudiced by the Sentence Review Board's failureto statereasons for its decisionupholding the 40 year sentence? Sincepetitioner ismerely attacking the findings and conclusions of the District Court, this Courtwillreview petitioner's issues inlightof the dispositive issue. Does substantial, credible evidence exist to support the District Court's findings and conclusions? Before proceeding topetitioner's issues this Court notes that inreviewing anorder denying post-conviction relief the Courtmust consider which party the burden of proof isplaced upon and the scope of review allowed on appeal. Petitioner's actionwas instigatedunder Montana's post-conviction relief statutes sections 95-2601, R.C.M. 1947, etseq. These statutes arein substantialconformity with the Uniform Post-Conviction ProcedureAct approved by theNational Conference of Commissioners on Uniform State Laws and theAmerican Bar Association in 1955. See: 11 Uniform Laws Annotated 483 (1974). Eleven stateshave enacted the Uniform Post-Conviction Procedure Act. Montana, Maryland and Oregon retain the 1955version, while the eight other stateshave adopted the 1966 Revised Act. his Court looks to the courts of Maryland and Oregon, and theether states tothe extent thatthe revision does not change thebasis of decision forrelevant interpretationsof theAct. The petitioner, upon filinga petition forpost-conviction relief, bears theburden of proving the facts justifying the relief requested by a preponderance of evidence. ~iller v. State, (1976), 32 Md.App. 482, 361A.2d 1521 156; Cooper v. State, (1975), 96 Idaho 542, 531 P.2d 1187, 1190; Young v. ~upp,(1971), 8 0r.App. 41, 491 P.2d 1201, 1202; Statev. Hardy,

The scope of review on appeal from an action forpostconviction relief is the same as stated by this Court in Mont

# . Luppold v. Lewis, (1977), ,563 P.2d 538, 540, 34

"When reviewing findings of fact and conclusions of law of a district court, sitting without a jury, this Court has repeatedly held such findings and conclusionswill not be disturbed if supported by substantial evidence and by the law. 

## * * * When reviewing evidence itwill be viewed in the lightmost favorable to the prevailing party in the district court, and the credibility of witnesses and the weight assigned to their testimony is for the determination of the district court in a nonjury trial." See: Hirt v. State, (Minn., 1976), 244N.W.2d 162;Brudos v. Cupp, (1973),14 0r.App. 277, 512 P.2d 1009, 1012; State

### v. Valadez, (1968), 79 N.M. 513, 445 P.2d 390, 391. Issue 1,Petitioner alleges the District Court erred in holding that the court appointed counsel rendered adequate and effective assistance. The following finding of fact was entered after the conclusion of the post-conviction relief hearing: "10. That Petitioner's counsel,Michael Prezeau, was an experienced counsel in criminalmatters; as one of the two Public Defenders he did handle a varied substantial amount of criminal defenses, was instrumental in preventing a notice of a prior felony being filed,was successful in having the second count of Aggravated Assault dismissed, was active in the role of advocate for the Petitioner, and evidently did play some part in keeping a charge of Criminal Possessionof Dangerous Drugs from being prosecuted." On the basis of this finding the District Court concluded that the services of petitioner's court appointed counselwere adequate and effective. In reviewing the evidence relied upon by the District Courtwe find the following support: (1)The original sentencing judge stated the court appointed counsel had tough circumstances and facts and didthe best he could dowith what he had towork with. (2)Petitioner made voluntary statements to the police department inwhich he admitted facts upon which the Information was based. (3)Two of the fivepeople involved in the crime had already plead guilty and agreed to testify at petitioner's trial if necessary. 

### (4) The presentence report showed a basis for filing a notice of prior felony. (5)The sentencing judge testified that due to counsel's negotiation with the county attorney's office a prior conviction chargewas not filed, and that counsel had succeeded in reducing the charges as far as possible. Counsel's plea bargaining skillsprevented petitioner from being sentenced to life imprisonment. (6)Petitioner made statements during his arraignment that he was satisfied with the services rendered by his counsel. Petitioner failed to sustainhis burden of proving he

was denied effective assistance of counsel. We find sufficient credible evidence to support the District Court's conclusion that the services of petitioner's court appointed counsel

were adequate and effective. Issue 2. Petitioner contends the sentencing judge's comments at the post-conviction relief hearing show he was sentenced in part forperjury, a crime with which he was not charged and thereforewas denied due process of the law. The comments include: "A. Ibelieve that this defendantwas not as candid as he should have been. "Q. Now could you explain 

## * * *? A. Yes,he didn't tell the truth. 

### "Q. In other words, in effect he committed perjury or lied on the witness stand? A. Hewasn't candid tothe Court in that he didn't tell the truth. I don't know if youwould define it as perjury or Iwould have done it as perjury. There were things about what transpiredwith this event that justwere not explained by him thatwere incredible to me.

"Q. But you did then in this particular case put heavy emphasis in the sentencing on the fact thatyou felt that the defendantwas not candid in the testimony at the Melody Boykin trial? A. About 15 years worth, I think." Petitioner argues that consideration of perjury in sentencing represents a conviction for another crimewithout normal procedural safeguards. This argument represents the minority position. See: United Statesv. Grayson, (3rdCir. 1977), 550 F.2d 103, 109;Scottv. United States, (U.S.App. D.C. 1969), 419 F.2d 264. The seven other circuits considering this argument have reached an opposite conclusion. See: United Statesv. Lustig, (9thCir. 1977), 555 F.2d 737, 751, cert.denied 46 LW 3470 (1/24/78); United Statesv. Sneath, (8thCir., 1977), 557 F.2d 149, 151;United States

### v. Levine, (7th Cir., 1967), 372 F.2d 70, 74, cert. denied 388 U.S. 916, 87 S.Ct. 2132, 18 L ed 2d 1359;United States

### v. Wallace, (6th Cir., 1969), 418 F.2d 876, 878;United Statesv. Nunn, (5thCir., 1976), 525 F.2d 958, 960,reh.denied 527 F.2d 1390;United Statesv. Moore,

(4thCir. 1973), 484 F.2d 1284, 1287;United Statesv. Hendrix, (2ndCir., 1974), 505 F.2d 1233, 1234-37,cert.denied 423 U.S. 897,

We choose to follow the majority position for the reasons enunciated by Judge Frankel in Hendrix: "[That defendant's argument] ignores the nature of the sentencing process as it exists in our system and of the factors the trial judgemay consider in exercising a frequently enormous range of discretion. If there is no clear consensus on these factors, it is certainly clear that they include, as aggravating circunstances,conduct that is not literally 'criminal,' or at least has not been duly adjudged criminal in the case in which sentence is being imposed."Theeffort to appraise 'character' is, to be sure, a parlous one, and not necessarily an enterprise forwhich judges are notably equipped by prior training. Yet it is in our existing scheme of sentencing one clue to the rational exercise of discretion. If the notion of

'repentance'is out of fashion today, the fact remains that a manipulative defiance of the law is not a cheerful datum for the prognosis a sentencing judge undertakes. 

## * 

## * * Impressions about the individual being sentenced

## * * * are, for better or worse, central factors to be appraised under our theory of 'individualized' sentencing. The theory has its critics. While it lasts, however, a fact like the defendant's readiness to lie under oath before the judge who will sentence him would seem to be among the more precise and concrete of the available indicia." 505 F.2d 1235, 1236. The District Courtmade explicit a factor it deened material in sentencing the petitioner. "A judgemay consider the candor of the defendant on the stand in passing sentence." 555 F.2d 751. There is nothing offensive in the judge's comments that the defendant had been less than candid in his sworn testimony. "A sentencing judge cannot put out of his mind the impression a defendantmay give while on the witness stand and should not try to sentence in amental vacuum." United States

### v. Cluchette,

(9thCir. 1972)) 465 F.2d 749, 754. While the sentencing judgemay take into account his belief that the defendant was not candid with the court this is to be distinguished from the rule that a sentencemay not be augmented because a defendant refuses to confess or invokes his privilege against self-incrimination. Fox V. State, (1977 Alaska), 569 P.2d 1335, 1338. See: United Statesv. Garcia,

(3rdCir. 1976), 544 F.2d 681, 685; United States v. Acosta, (5thCir. 1975), 509 F.2d 539, cert.denied 423 U.S. 891, 96 S.Ct. 188, 46 L ed 2d 122 (1975); United Statesv. Rogers,

(5thCir. 1974), 504 F.2d 1079, 1085, cert. denied 422 U.S. 1042,Inpetitioner's case,his candorwas only one factor considered by the sentencing judge. The District Court found the sentencing judge imposed the 40 year sentencebased upon the following reasons: "9. 

## * * * That Petitioner displayed 

### a significant lack of candor during his testimony at the Boykin trial and that Petitioner'sattitude was extremely poor and therefor thathis potential for rehabilitationwas extremely poor; that Petitioner had had a fairly extensive criminal record that included a conviction for Burglary, a felony, on October 24, 1972, forwhich Petitionerhad been given a two year suspended sentence; that he was further convicted of Petty Larceny,with a prior on June 14, 1973, forwhich he had received 27 days in jail and 

### 24month probation, occurring in the State of California.I9 On the basis of this finding the District Court concluded the sentencing judge used his sound judicial discretion in arriving at the sentence imposed. The record shows the sentencing judge consideredmany factors in sentencingpetitioner. The commentsof the sentencing judge relied upon by petitioner indicate only that the judge believed petitionerwas not candid with the court and took this into consideration while imposing the sentence. In Levine, the court said: "In this respect the defendant's testimonymight properly have been considered,not as punishment for the crime of perjury, but as a reflection of the character of the person before the court for sentencing." 372 F.2d 74. Accordingly,we note the statementof the sentencing judge at the conclusion of the hearing for aggravation or mitigation of sentence. " 

### * * * But that is not the kind of candor 1 am looking for and it is not the kind of respect for the whole system that I am looking for. What I look for in this casewas some redeeming social quality on your part that would justify risking society by giving you a shorter sentence,and I can find none. 

## * * * And now the only thing left really is not to risk a chance that something will happen if you go down there and come out and do something. The only thing left now is to protect society. And I am sorry about it. We will be in recess.

### "Sufficient,credible evidence exists to support the conclusion of the District Court. The sentencing judge used his sound judicial discretion in arriving at the sentence imposed.Issue 3. It is the general rule that a sentencewithin the maximum authorizedby statute is not cruel and unusual punishment. State v. Karathanos, (1972), 158Mont. 461, 468, 469, 493 P.2d 326. Petitioner acknowledges this rule,but argues if the sentence is so greatly disproportionate to the crime that it "shocks the conscience and outrage of themoral sense of the community or of justice",it is still cruel and unusual punishment. Statev. Karathanos, supra;Faulkner v. State, (1968 Alaska), 445 P.2d 815, 818,Anno. 33 ALR3d 335, 363. Petitioner had the burden to prove by a preponderance of evidence that his sentence fellwithin this exception. This was not done. The sentencewas within the maximum punishment for the crime of robbery as mandated by the legislature. The sentence was subsequently reviewed by the SentenceReview Board and left as originally imposed. Given the function of the SentenceReview Board, section 95-2503,R.C.M. 1947, this decision amounts to an implicit finding that the sentencewas not so greatly disproportionate to the crime. Finally, the sentence imposed was based upon numerous

reasons. One reason enunciated by the sentencing judgewas the protection of society. We do not engage in the practice of second guessing the trial judge,who after observing the demeanor and attitude of defendant,uses his discretion in fixing the punishment. Statev. Karathanos, supra. We only review the cold record. In this light,we note petitioner's testimony at his hearing for aggravation or mitigation of sentence: "Q. 

## * * * Prior to your arrest and residencehere in jail,how did you support yourself? A. Playing pool and a little hustle here and there.

"Q. And anything else? A. Oh,yeah. "Q. What? A. I don't really think that is any of your business.

"Q. You indicated to your counsel thatyouwere sorry forwhat you did. Now, this is the second time that you have appeared before this Court testifying about this incident. Would it be more correct to say that you were sorryyou got caught? A. Yeah." No abuse of discretion appears from the record. The District Court had sufficientevidence to conclude the sentence was not cruel and unusual. Issue 4. We find no merit to this assignment of error. Petitionermerely makes a bald assertion of error in that the Sentence Review Board failed to state the reasonswhy the sentence remained the same as originally imposed. Petitioner neither plead nor proved facts supporting a condition warranting relief under the post-conviction relief statutes. Finding no reversible error,we affirm the judgment of the District Court. 

### r

ustice We concur: 

# I

--------------4------------------ Justices

Hon. L.

### /c. Gulbrandson, sitting with i&e Court.Mr. Justice Daniel J. Shea dissenting:

Itwas improper for the District Court to make the factual determination during sentencing that the defendant did not tell the truth when he testified at another trial. Accordingly, I would reverse the order of the District Court and order defendant be resentenced without regard towhether a trial judge determined that defendant comitted perjury. Themajority entirely misconceives the nature of the problem presented and the standards of review to be applied to the DistrictCourt proceedings. The issue is not a factual one of determining whether there is substantial evidence in the record to ultimately support the District Court's finding that another District Court had sufficient evidence before it to justify sentencing defendant to the maximum of 40years in prison for robbery. Due to the nature of the offense and defendant'sprevious criminal background, there is no doubt defendantwas a well qualified candidate for a lengthy stay in prison. However, that is not the issue. Rather, the issue is strictly a legal one-- whether a District Court can add 15 years to a defendant's sentence because itbelieves the defendant committed perjury, or in the softer terminology some courtsprefer to use, the defendant

was not candid in his testimony. Neither the reviewing District Court nor this Court came to grips with this issue. I believe we are bound by the unequivocal testimony of the sentencing judge in determining whether the sentencewas improper. At the post-conviction hearing he testified: 

## "a. Butyou did then in this particular case put heavy emphasis in the sentencing on the fact that you felt that the defendant was not candid in the testimony at the Melody Boykin trial? A. About 15 years worth, I think."

(Emphasisadded.)The sentencing judge also explained what he meant by defendant's lack of candor: "Hewasn't candid to the Court in that he didn't tell the truth. I don't know if YOU would define it as perjury or I would ha$e done it as perjury.- 

## here were things about what transpired with this event that just were not explained by him that were incredible tome." (Emphasisadded.) Clearly, this is an unequivocal admission from the sentencing judge that he added 15 years to defendant's sentence solely because "hedidn't tell the truth" at theMelody Boykin trial. Themajority gave no factualbackground of the circumstances surrounding the Melody Boykin trial. Defendantand four others, includingMelody Boykin,were arrested for robbery and aggravated assault. The victim was lured into an alley, then

was rolled and severely beaten. Melody Boykin was apparently defendant's girlfriend. Three of thesepeople plead guilty to robbery and the aggravated assault chargeswere dismissed without prejudice. Itwas understood that they would testify against Melody Boykin who plead innocent, and they did. Defendant also plead guilty and the aggravated assault charge was dismissed without prejudice. Defendant also testified at the trial,but Melody Boykinwas acquitted,much to the disappointment of the District Court judgewho presided over the trial and who was later to sentence defendant. The trial court obviously thought defendantdid not tell the truth during the Melody Boykin trial and thereby helped gain her acquittal. For this testimony the trial court added 15 years onto defendant's sentence. This is an intolerable abuse of sentencingdiscretion. Themajority erroneously relied on the findingsmade by the trial court at the conclusion of the post-conviction proceeding, quoting in full from finding number nine. However,these findings were notmade on the basis of the sentencing court's testimony at the post-conviction hearing. Rather, they

were based entirely on the record of the sentencinghearing. Surely this Court is in a better position to review the sentencing record. I say better position because it is extremely unrealistic to assume that one District Court will fairly and impartially review the decisions of another District Court judge. Human nature simply does notwork thatway. InWorden v. Alexander, (1939), 108 Mont. 208, 90 P.2d 160, a trial judgewho did not preside over the trial itself ruled on a motion for a new trial. As to reviewing the record of the trial on appeal, this Court stated: 

## "** *where a motion for a new trial is heard by a judgewho did not try the case, such judge

## * * 

## * was compelled to gain his knowledge of the case from the record alone, and was therefore in no better position to determine the motion than is this court, and hence his order does not carrywith it the presumption usually indulged in favor of such order. 

## * * *n 108Mont. 211-212. This Court extended thisprinciple of review to findings and conclusions where one trial judge enters findings and conclusions in a case over which he did not preside. Phalenv. Rilley, (1970),154 Mont. 399, 403-404, 465 P.2d 102. Under these cases this Court could just as easily review the record of the sentencing hearing and come to its own conclusions as to the propriety of the sentence. On the other hand, if the District Court made its findings and conclusions in part in reliance on the testimony introduced at the post-convictionhearing,he was clearly in error that the entire sentencewas made for a variety of justifiable reasons. It is obvious that the DistrictCourt totally ignored the testimony of the sentencing judgewho admitted he added 15years to the sentence because the defendant did not tell the truth at theMelody Boykin trial. This fact is not even mentionec? in his findings. I do not believe this Court can also in good conscience ignore that testimony. But themajority does ignore the record when it states: "The record shows the sentencing judge consideredmany factors in sentencingpetitioner. The conments of the sentencing judge relied upon by petitioner indicate only that the judge believed petitioner was not candid with the court and took this into considerationwhile iriposing sentence. 

## * * 

## *" (Emphasisadded.) It is simplynot a matter of taking defendant's candor into consideration; it is a matter of sentencinghim to an additional 15 years because the defendant displayed a lack of candor. Certainly, it is logical to assume by the sentencing judge's testimony that, if he had not considered defendant's testimony at the Melody Boykin trial, the sentencewould have been 25 years in prison rather than 40. The apparent reasoning of themajority is that a defendant's candormay be considered and apparentlyused to augment a sentence up to the maximum because candor reflects on one's character and capacity for reformation. This reasoning ignores the more fundamental constitutional protections to which one is entitled,but which have now been stripped away. Presumably the sentencing judge determined that the defendant either committed perjury during the Boykin trial (although he admitted in effect it could not be proved), or that the testimony involved was such as to adversely reflect on defendant's capacity for reformation. In either situation, the District Court had no right to make this factual determination and punish defendant without benefit of trial. The constitutional hazards of increasing a sentence for alleged perjury committed during the course of a trial were discussed at 66 Yale Law Journal 204, 212-213:"Theperjury rationale for increasing sentencemay be viewed from two differentperspectives. Itmay be said that the judge is awarding the defendant a given punishment for the crime of which he has been convicted,and then,within the limits of his discretion to fixpunishment for this offense, is imposing an additional sentence because the defendant has committed the second crime of perjury. Or the courtmay be said to consider the occurrence of perjury as a culpable act bearing upon the character of the accused; accordingly, the defendant is given a longer sentence for the crime of which he stands convicted because his perjurious conduct increases the difficulty of reformation. Both of these justifications seem unsound. "Penalizing the defendant for the substantive crime of perjury by increasing the sentence for another offense contradicts basis tenets of criminal law. Sinceperjury isproperly punishable in a separate criminal proceeding, a summary adjudicationby the court of the defendant's guilt is an inadequate substitute for the constitutional safeguards inherent in a new indictment and jury trial. Moreover, even though the defendant's convictionmust be taken as a repudiation of his testimony,the judgment in the initial casewould undoubtedly be inadmissible evidence in a subsequentperjury proceeding. In light of this doctrine, the practice of conclusively presuming the commission of perjury from the fact of conviction isparticularly suspect. In addition to a charge of perjury, the District Court, of course,would have the choice of proceeding against a defend ant for criminal contempt. But even in such situations the defendantwould have his procedure protections. As stated in 66Yale Law Journal 204, 213-214: "Adefendant isnot always entitled to a separate trial on the issue of perjury; lying under oath in a judicial proceedingmay at times be punishable as criminalcontempt. Under rule 42(a) of the Federal Rules of Criminal Procedure, criminal contemptmay be punished summarily if the judge certifies that the conduct constituting the contempt was committed in the presence of the court. However, the Supreme Courthas held thatperjury standing alone does not 'obstruct the administration of justice' and hence does not by itself constitute criminal contempt under the applicable federal statute. To be punishable, the perjury must be such that it blocks the performance of judicial duty. Although the application of this doctrine hasevoked considerable confusion, it is questionable whether the requisite obstruction of justice could be said to occur when the defendanthas been convicted in spite of his perjured testimony. In addition, cases have indicated that the bona fide belief of a presiding judge that a witness has committed perjury does not by itself justify summarypunishment of the contemnor without due notice and hearing." However,when a sentencing court punishes the defendant by an increased sentence as thoughhe had committedperjury, he deprives the defendant of the procedural protections that he would have had in a criminal contemptproceeding. In 66Yale Law Journal 204, 214, the legal consequences are described: "When a judge increases the sentence awarded for the charged crime as a penalty for perjury not summarily punishable as contempt,he utilizes his discretion to accomplish a resulthe could not have effected directly. The rigid requirementswhich must be met forperjury to qualify as criminal contempt reflect the policy that the contempt power should be strictly applied, since the contemnor is sentenced without the normal safeguards of procedural dueprocess. Such a policy is jeopardized when a judge increases sentence for another crime to discipline a defendantwhose perjured testimony, though not qualifying as contempt,has been felt to offend the dignity of the court. "Assuming that the perjury of the accused would be subject to punishment as criminal contempt, the court that awards a more severe sentence on the basis of the defendant's commission of perjury may be said to substitute one form of summary punishment for another concededly within itspower. At first glance, such a practice does not seem objectionable. However, it should be noted that a sentence within the legal limitsprovided for the proven crime is not usually subject to appellant review. Accordingly, a defendant whose sentence has been increased as a penalty forperjury felt to constitute contempt is denied the right of appealwhich he would have enjoyed if the court had followed the standard procedure for summary punishment of contempt. Such a deprivation is particularly significant inview of the frequent misapplication by trial courts of the standards for punishing perjury as criminal contempt."See also, Scottv. United States, (D.C. ~ir. 1969), 419 F.2d 264, where the problems involved in considering the candor of a defendant,either as perjury or as criminal contempt, are discussed in detail. Scott unequivocally condemns thispractice. Assuming moreover that a court sentences a defendant to additional time in prison either because it believes the defendant has committed perjury at his own trial, or, as in this case, at another's trial, is it really an ironclad indicia of the defendant's capacity for reformationor repentance? Thispoint has also been discussed in 66 Yale Law Journal 204, 216-217, where the author states: "Theprior criminal conduct of a defendant awaiting sentence is acknowledged to be a gauge of his antisocial propensities, and hence useful in predicting the sentence necessary to effect reformation. Accordingly judges consider, in addition to convictions,other purported illegal activities of the accused as revealed by pre-sentencing reports or other sourcesof information. Viewed from thisperspective,perjury apparently committed at trial may be classified an illegal activity properly incorporated into the defendant's criminal record. And, since past criminal behavior is a factor influencing length of sentence, a pro tanto increase in the punishment accorded a defendant suspected of perjury may at first glance seem defensible. "However,when a judge awards a defendant believed to be a perjurer a more severe sentence than he would have given a defendantpleading guilty to the same offense but otherwisepossessing an identical criminalrecord, such a discrimination is justified only if the perjury indicates a distinction in the character of the two defendants. An individual willing to commit a crimewould quite likely have no moral scruples against subsequently denying under oath its commission in order to escape punishment. In the usual case, a defendant is motivated to admit guilt not by an aversion to perjury but by the realization that his plea may be effective in mitigating sentence. For an accused confronted with incriminating evidence, a guilty pleamay appear to be a farmore profitable choice than an effective false denial at trial. When perjury is avoided for reasons of expediency, not principle, it is debatable whether the defendantpleading guilty is a better prospect for reformationthan onewho perjures himself at trial in an unsuccessful effort to obtain acquittal. On the other hand, the defendant whose sentence has been increased on the basis of suspected perjury has',in the opinion of the court, actually perjured himself;his counterpart who pleaded guilty may have entertained the pr-opensity to commitperjury but did not in fact do so. Thus in evaluating the character of the two defendants, itmay sometimes be reasonable to give greater weight to the commission of perjury than to the mere 2ropensity to commitperjury." It appears that all the caseswhich have discussed perjury and its effect on a sentence have been situationswhere the trial judge, in his infinitewisdom, has determined that the defendantperjured himself during his own trial. No cases have involved situations where the judge has made the same determination at someone else's trial. Accordingly, the cases cited by themajority, and in this dissent,have involved alleged perjury committed during the defendant's trial. However, I feel the reasons why the sentencing court should not consider perjury to augment a sentence are evenmore compelling in situations where the judge believes a defendant has committed perjury at another's trial. Where a defendant has testified at his own trial and is convicted the rationale is that the jury's verdict is an implicit finding that he was not telling the truth. But that same reasoning does not hold forth in a situationwhere the defendant has testified at another's trial. I suggest another reasonwhy a judge should not consider perjury as a reason to augment a sentence. Frompractical 

### experience, judges know that rare is the day if testimony is beins heard all day, the perjury has not been committed,or at least that a witness has been more than a little carelesswith the truth. Like it or not, it is a fact of life. And yet judges, when they believe someone is not telling the truth, do not order a prosecutii~y attorney to file perjury charges. It is equally as rare that the trial judge holds a witness in contempt for not telling the trut?. The fact is that the trial judge does nothing about this perjury. I suggest the only reason it isdone in criminal cases, after adefendant is convicted, is the sentencing judge then has the hammer over the defendant's head--and, at sentencing, the hammer falls. Even though he knowsperjury could not be proven if a criminal charge were filed,and perhaps even a criminal contempt chargewould not hold up,he then decides to consider perjury as
a factor in the sentence. Surely,this is an uneven application of the law. But to so apply the lawdenies to defendant his constitutional protections as well as other defenses he may have either to a perjury charge or to a criminal contempt charge. Using this kind of leverage against a defendant whom the sentencing judge believes has committed perjury can only be attributed to the arroganceof the court system where the trial court ispermitted to play god with the life of a defendant. Nowhere should this kind of arbitrary conduct be tolerated by

an appellate court. The cases cited by themajority indicate in one way or another that it is permissible for a sentencing court to consider defendant's candor. The apparent reason is that it reflects

on a defendant's capacity for reformation. However, almost all the cases cited are readily distinguishable from the situation here. Some do not state howmany years, if any,were added because the trial judge believed the defendant committed perjury, or,more delicately, was not candid. Inmost of the situations the defendantwas sentenced to far less than themaximum. Additionally, in most cases the sentence imposed does not indicate that the trial courtplaced undue emphasis on the defendant's lack of candor. None of them came close to adding 15years to a sentence because of a defendant's lack of candor. The first case cited by the majority, United Statesv. Lustig, (9thCir. 1977), 555 F.2d 737,was a situationwhere the defendantwas convicted of distributing and conspiracy to distribute cocaine. Themaximum penalty was not stated. ~fter the verdict the prosecuting attorney commented that defendantmayhave perjured himself testifying in his defense. Defendantwas given nine years in prison, but there is no indication of how much time was added, if any, for the defendant's lack of candor. he appellate court simply ruled it was permissible for the sen-- tencing court to consider the defendant's candor on the witness stand at his trial. In United Statesv. Cluchette, (9thCir. 1972), 465 F.26- 749, the defendantwas convicted of passing counterfeit bills. The maximum sentencewas 15 years on each count. The sentencing record showed that the sentencing judge believed defendant had been "lessthan candid" in his trial testimony. Defendantwas sentenced to 18 months on each of two counts, to run concurrently. The appellate court stated that there was "noevidence the judge

was biased or prejudiced", and that the sentence imposed "forecloses any thought that the judgewas unfair 

## * * 

## *." 465 F.2d 754. In United States

### v. Sneath, (8thCir. 1977), 557 F.2d 145, the defendantwas convicted of interstate transportion of stolen motor vehicles. Themaximum sentencewas not stated. The presentencing investigation alleged defendant had lied to the FBI. The court sentenced defendant to 18months in prison. Defendant contended the trial court relied on thispresentence report stati:?; he had lied to the FBI. The appellate court stated that he did not deny the allegations in the report and that they were apparently not amajor factor in his sentence. The court concluded that 

## "** * A sentencing judge is entitled to consider a wide range of information regarding defendant's character and background in fixing sentence. 

## * 

## * *" 557 F.2d 151. InUnited States

### v. Levine, (7thCir. 1967), 372 ~.2d 70, the defendant was convicted of armed robbery and sentenced to the maximum of 25 years. Defendant contended on appeal that he received the maximum sentence because he took the witness stand.However, the appellate court stated that although the sentencing judgemay have believed defendantperjured himself, and may have considered that (itdid not knowwhether he had), the record shows that the trial court consideredmany factors,several of which independently supported the sentence. InUnited Statesv. Wallace, (6thCir. 1969), 418 F.2d 876, the defendantwas convicted of removing $3.00 in currency from a letter entrusted to him. Defendantwas convicted in a nonjury trial, and at sentencing the judge commented that defendant's guilt was proven to "amathematical certainty". 418 F.2d 877. The court also commented itwould almost certainly have granted probation if defendanthad come into court and admitted his guilt. Instead, the court imprisoned the defendant, the term not being mentioned in the opinion. It is not clear what issue the defendant raised on appeal,but the appellate courtdid hold it was proper to consider defendant's testimony at trial in imposing sentence. InUnited Statesv. Nunn, (5thCir. 1976), 525 F.2d 958, the defendantwas convicted of transporting illegal aliens. Neither the maximum sentence nor the sentence actually givenwas disclosed. The appellate court stated, without explanation, that consideration of perjury in sentencing ispermissible. In United Statesv. Moore, (4thCir. 1973), 484 F.2d 1284, the defendantwas convicted of receiving a stolenvehicle. He

was sentenced to four years in prison. Themaximum sentencewas greater. In sentencing the judge considered that the defendant had "testified falsely" at this trial. The appellate court allowed the fouryear sentence to stand on the broad ground 

## "** * that a sentencing judgemay consider evidence of crimes for which the defendant has not been convicted. 

## * * *" 484 F.2d 1287. The court actually side-stepped the issue,but clearly stated its preference for the futurewhen it stated:

## "*

## * * It is better in the usual case for the trial judgewho suspectsperjury to request an investigation. Then, if the facts warrant it, the United StatesAttorney may instituteprosecution for this separate and distinct crime." 484 F.2d 1288. In his dissent, Judge Craven was emphatic in stating that evidence of perjury should never be considered as a factor in sentencing. InUnited Statesv. Hendrix, (2ndCir. 1974), 505 F.2d 1233, the defendantwas convicted of possession with intent to distribute cocaine and marijuana. Themaximum penalty was not disclosed in the opinion. He was sentenced to ten years in prison, two years of which were attributable to the judge's belief that defendantperjured himself. In affirming the sentence, the appellate court stated 

### " 

## * 

## * * Impressions

## * * * are

## * * * central factors to be appraised;under our theory of 'individualized' sentencing. 

## * * *" 505 F.2d 1236. Clearly, these cases cannot withstand the scrutiny of closer analysis,and neither should they be the foundation for law in this statewhich gives carte blanche to sentencing judges to sentence for perjury, or the more delicate term of "lackof candor"

# . There are a multitude of policy factorswhich militate against allowing a sentencing judge to impose additional punishment because of his belief that the defendant has committed perjury, either at his own trial, or at the trial of another. However,when it comes down to the core, I believe that Justice Craven, in his dissent in United Statesv. Moore, supra,best stated it: "Isuggest onemore reasonwhy a trial judge should never impose additionalpunishment because of his belief that a defendant lied in his own defense: he may be wrong. 

## * * *" 484 F.2d 1288. (Emphasisadded.)