# FILED
December 22, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JULY SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9609-CR-00396 ) Appellee, ) ) ) SUMNER COUN TY VS. ) ) HON. JANE W. WHEATCRAFT JAME S W. C ONN ORS , III, ) JUDGE ) Appe llant. ) (Direct Appeal -

Sentencing)

FOR THE APPELLANT : FOR THE APPELLEE : JOHN E. HERBI SON JOHN KNOX WALKUP 2016 E ighth Ave nue So uth Attorney Generaland Reporter Nashvill e, TN 37204 LISA A. NAY LOR Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243-0493 LAWRENCE RAY WHITLEY Distri ct Attorney General WAYNE HYATT Assistant Distri ct Attorney 113 East Main Stre et Gallati n, TN 37066

OPINION FILED ________________________ REVERSED AND REMANDED JERRY L . SMI TH, J UDGE-2- 

## OPINION

On October 13, 1994, Appellant James W . Connors, III, pleaded guilty to dri vi ng under the in fluence, second offense; drivi ng on a revoked l icense; and reckless endangerment. After a sentenci ng hearing on December 6, 1994, Appellant

received an ef

fectiv e sentence of 120 day s imprisonment

followedby 21⁄2 years of pr

obation. Appe llant ap peale d his sentence and thi s Court vacated his sentenc e and r emanded the case for r esentencing. After a sentencing hearing on May 28, 1996, Appel lant received an effective sentence o f 240 days imprisonmentfollowedby sixteen months of probat ion. Appe llant ch alleng es his sentence, raising t he following issues: 1) wheth er the tr ial judg e sho uld ha ve recu sed h erself fro m Ap pellan t’s resentencin g hearing; and 2) whether the i mposition of a h arshe r sente nce a fter Ap pellan t’s successful appeal viol ates due process. After a review of

the record, we re verse the j udgment of the t rial cour t and remand this matter for resentencing before another t rial j udge.

FACTS Appellant

pleaded gu ilty to dri ving under the influence, second of fense; drivi ng on a revoked l icense; and r eckless endangerment o n October 13, 1994. After a senten cing hea ring on D ecem ber 6, 19 94, the trial co urt sente n ced Appellant

to eleven months, twenty-nine days f ordriving u nder th e influe nce, a ll suspended except 1 20 days and follow ed by ele ven mo nth s, twenty-nine days probation; to eleven months , twenty-nine days f or reckles s enda nger men t, all suspended except 120 days a nd followed by eleven mo nths, twenty-nine d ays-3-

p robation; and to six months for driving on a rev oked license, all suspen de d except120 days and followed by si x months p robation. The periods of incarcerat ion were to run co ncurre ntly, wh ile the periods of probati on were to run
conse cutively.

After the sentenci ng on December 6, 1994, Appel lant fi led a no tice of appeal and a motion to set bond pendi ng appeal. The trial court entered an order settingbond at $100,000 and set ting the f

ollowing conditi ons: 1) Appell ant was to go directly from jai l to an i n-patient treatment f

acili ty; 2) upon completion of a twenty-ei ght day in-p atie nt tre atment program, Appel lant was to be placed on i nte nsive probation and was to make daily reports to his probat ion offi cer; 3) Appellant

was not to drive; 4) Appel lant was to take antabuse or some other drug
as pr escribed by a physician to keep him fr om drinking wi thout seri ous side effects; 5) Appellant

was to have peri odic unannounced drug and alcohol tests; and 6) Appe llant was to attend Alcoho lics Anonym ous every da y. On December 1 5, 1994, this Co urt removed these six cond itions of bond be cause they wer e unrelate d to assu ring App ellant’s app earanc e in court.
Subseq uently, in State v. Conn ors , 924 S.W.2d 362 (Tenn. Cri m. App. 1996), this C our t vacated Appel lant’s sentence and remanded thi s matter for resentencin g. This Cou rt concluded that resentenci ng was required be cause the trialcourt h ad faile d to m ake s pecific refere nce to mitiga tin g and enhancement factors, had failed to place t he specific f i nding s of fac t upon which Appe llant’s sentence was based on the record, and had fail ed to consider the princi ples of the Sentencing Reform Act of 19 89. Id. at 364. In addit ion, thi s Court held t hat-4-

periods of prob ation must r un in the same manner (either consecut ively or concu rrently) as the periods o f incarcera tion. Id.
On May 6, 1996, thi s Court ordered thatA ppellant’ s bail bond be imm ediate ly reinstated and that the Sum ner Count y Sheriff release Appell ant from custody pendi ng further proceedings i n th e trialcourt. Appel lant was not release d until Ma y 9, 1996
.
On May 24, 1996, Appel lantfi led a mot ion for rec usalof t he t ri al j udge . On May 28, 1996, t he trialcourt deni ed the motion af terfindingthat the mot ion was insuffi cienton its face to state gro unds fo r recusa l. Followi ng the denialof the recusal motion, the tri al court s entenced Appellant to eleve n months and twentynine days for driving under the influen ce, allsuspended except 120 day s foll owed by eightmonths of probation; to eleven months and twenty-nine days for r eckless
en dange rment, allsus pend ed ex cept 120 days fo ll owed by e igh t mo nths o f probation; and six months for drivi ng on a revoked l icense, al l suspended except 120 days foll owed by six months of pr ob ation. Th e trial court o rdered to sentences for driving under t he influ ence and reckles s endange rment to run
cons ecutive ly and ord ered the sente nce for dri ving on a rev oked license t

o run concu rrently with the others.

RECU SAL Appellant

contends that

the tri al court erred when it deni ed his motion f or recus al. Whether to grant a moti on to recuse is discre tionary with the t rial j udge. Caruthers v. State , 814 S.W .2d 64, 67 (T enn. Crim. A pp. 1991). T his Court may reverse only when the t rial judge has clearly abus ed that discretiona ry authority.-5-

Stat e v. Cash , 867 S .W .2d 74 1, 749 (Ten n. Crim . App. 1 993). T he trial ju dg e shou ld recuse hersel f whenever “he r ‘i mpartiality might r easonably be ques tioned .’” Alley v. State , 88 2 S.W.2d 8 10, 820 (Tenn. Cri m. App. 1994) (quoting Code of Ju di cial Conduct, Canon 3(c)). Recusal is appr opriate “ when
a person of ordi nary prudence i n the judge’ s positi on . . . woul d find a reaso nable basis for ques tioning the judge’s im partiality.” Id.

A ppellant’s motion for recusa l alleged, a mong other thing s, that th e si x conditi ons of bond pending appealwere signi ficantly more onerous than t he actual sentence and that these conditi ons were imposed to penal ize Appell ant for
exerc ising h is right to appeal; t hat the trial court , in an ex parte communicati on, ordered the Sum ner Co unty Sher iff to con tinue to confin e App ellant d espite this court’s ord er that h e be released; and that th e trialcourt had part icipated in ex parte conversati ons about the case with the district attorney

gen eral’ s office. The trialcourt deni ed that any of these all egations were t rue and it ruled that the moti on should be denied be cause it was i nsuffic ient on i ts face i n stat ing th e ground s for recus al.

The trialcourt clearly

abused its discreti on in ruling that these allegat ions presented facially insuffi cient grounds for recusal . Appellant’s motion contained seriousallegat ions of judi cial misconduc t. Certai nly, “ ‘assuming the t ruth of t he facts alleged, a reasonable per son would concludethat [this ] particu lar judg e is biased or prejud iced aga inst [t his] part icular [Appellant].’” Id. at 821 (quoti ng United States v. Baker , 441 F. Sup p. 61 2, 61 6 (M. D. Tenn. 1977 )). I t was not enough for the t rial cour t to determine that she had no subject ive bias against Appe llant, she was also requi red to determin e whether her i mpartiality might-6-

reaso nably be questioned under an objec tive standa rd. Id. at 822. In shor t, we hold that the t rial cour t abused its discret ion by denyi ng the r ecusal motion without giving App ellant an oppo rtunity to present proo f on the matter.

JUDICIA L VINDICTI VENESS Appellant contends that the t rial court’ s imposition of a harsher sentence after his successful appeal viol ates his right to du e process. I n North Caroli na v. Pea rce , 395 U.S. 711, 724–25, 89 S. Ct. 2072, 2080, 23 L. Ed. 2d 656 (1969) , the United States Suprem e Court held th at it is a violat ion of basic due process to punish a person beca use he has done what the l aw plai nly all ows. The Sup remeCou rt stated tha t the Due Proces s Claus e of the F ourteen th Amendment prevents increa sed senten ces which a re actua lly or likely motiv ated by a vindictive desire to pun ish a defenda nt for t he exercise of a stat utory or procedural right. Id. , 395 U.S. at 723–24, 89 S. Ct. at 2080. The Pearce Court stated: Due process of l aw, then, requires that vindictive ness a gainst a defendant forhaving successfully att acked his first

convicti on must play no par t in the sentence he receives after a new t rial. And s ince the fear of such vindict iveness mayunconstitutional ly deter a defendant’ s exercise of the right to appe al or collate rall y attack his fi rst convicti on, due process also requires that a defenda nt be freed of ap prehension of such a retaliatory motivatio n on the part of the s entenc ing judge
. Id. , 395 U.S. at 725, 89 S. Ct. at 2080. To preventvindict iveness fr om entering into t he decision and t o allay any

fear on the pa rt of a defendan t that a n increased sentenc e is the product of vindi ctiveness, the Court fashioned a proph ylactic rule that “whene ver a judge impo ses a mo re severe sentence upon
a defendant aft

er a new tri al, the rea sons for his d oing s o mu st affirm atively appea r.” Id. , 395 U .S. at 72 6, 89 S . Ct. at 2 081. O therw ise, a p resum ptio n arisesthat a greater sentence has been i mposed for a vindict ive purpose—a-7-

presumption th at must be rebuttedby “‘obj ective i nformation . . . justify ing the increased sentence.’” Texas v. McCull ough , 475 U.S. 134, 142, 106 S. Ct. 976, 981, 89 L. Ed. 2d 104(1986) (quot ing United States v. Goo dwin , 457 U.S. 368, 374, 102 S . Ct. 2485, 248 9, 73 L. Ed. 2d 74 (1982)).

In Ala bamav. Smith , 490 U.S. 794, 109 S. Ct. 2201, 1021 L. Ed. 2d 865 (1989), the Supreme Court l imited th e application of Pearce to circ umstances in which there is a “‘reas onab le likelih ood’ th at the inc rease in sentence is the product of actualvindict iveness on t he part of t he sentencing authority.” Id. , 490 U.S. at 799, 10 9 S. Ct. at 2 205. “W here th ere is no such reasonable l ikeli hood, the burden remains up on the defen dant to prove a ctual vindictiveness.” Id.

In this case, the tri al court did not art iculate any justificati on for incr easing Appe llant’s term of impriso nmen t from 12 0 to 240 days on resentencing. I ndeed, the State has al so fail ed to offer any explanat ion as to why the increas ed
s entence was justi fied. I n fact, it appears fr om the record that

the only t hing considere d durin g resentenci ng that was not considered i n the origi nal sentencing hearing was the fact that Appell ant had been successf ul on ap peal: M R
. HERBISON : Your Honor, that is an effective sentence of 240 days, with the bal ance of the sentence to be servedon probation? THE COURT : Yes, it wil l. My ori ginal thoug ht was I didn’t re ally wan t him to serve more than 120 da ys, but t he op inion t hat came out of t he [Crim inal] Court of Appeal s indicates that he can’t d o the tim e con curren tly and the rest of

the s ent ence cons ecutive ly; so I’m trying to be in compliance with the op inion. And that be ing the case , he is going to have to do 240 un less you can--1 Indeed, t he trial court stat

ed in it s order imposing the conditi ons that “[ Appellant

] is a man of substanti al means who, in the Court’s opi nion, i s attempting t o circumvent the system of just ice and buy him self tim e. In th e inte rim , all this Cou rt can do is tr y to se t con dition s to p rotec t soc iety fro m h im u ntil the Court of Criminal Appeals ca n review his sentence.” (I 20) -8- MR. HERBISON: May it please t he Cou rt, I don’t mean to be presumptuous [sic]here, but if the Court deemed an effective 120-day sentence to be appropri ate, certainly t wo consecutive 60- day sentences would achieve that objec tive. THE COUR T: I thi nk that he shoul d do 120 on the DU I, since it is his 5th DUI.

We hold that

in t his case, there is a “reasonable l ikeli hood” that t he increased senten ce was the prod uct of actu al vindictiven ess. This is espe cially true given th e trial co urt’s pre vious im positio n of the six inv alid condi tions of Appe llant’s appeal bond 1 and th e trial co urt’s im prope r denia l of App ellant’s recusal motion
. This Court i s hard-pressed t o accept eit her the trial court’s failure to objec tively ju st ify Appellant’s increase d effective sentenc e or the State’s failure to offer any e xplanation at all. Indeed , the Sup reme C ourt note d in Smith that when the same sentencin g judge presi des at both t he orig inal trial and t he subse quent retri al, the j udge “can be expected to operate i n the contex t o f rough ly the s am e sentencing cons iderati ons after t he second tri al as he does after the fir st; any unexplained change in the sentence is theref ore subject

to a presu mption o f vindictiveness.” Id. , 490 U.S. at 802, 109 S. Ct. at 2206. Therefore, it is the opinion of t his Court that there is a presumption of actual vindict iveness i n this case t hat has not been r ebutted.2 Bec aus e of o ur dis pos ition o f this c ase , we n eed not a ddre ss A ppe llant’s claim s tha t his sentences were excessive or that the trial court e rred in i mposing consecutive sentences.

-9- Becau se of our conclusi on that the State has not ov ercome the presumption that Appellant’ s sentence was the product of actual v indictiveness and that the trial cou rt erred in denyingAppella nt’s mot ion for recusal , we remand this case for t ransfer

to anothe r tri al judge who wi ll conduct a new sentencing hearing in accordance wit h the Sentencin g Reform Act of 1989. 2

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ WILLI AM M. B ARKER, JUDGE