No. 13651 

IN THE SUPREME COURT OF THE STATE OF XONTANA 

IN THE MATTER OF STEVEN HOWARD JONES, 

Petitioner. 

Appeal from: District Court of the Eleventh ~udicial~istrict, 

Honorable James M. Salansky,Judge presiding. 

Counsel of Record: 

For Appellant: 

H. James Oleson argued, Kalispell, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Patrick Springer, County Attorney, Kalispell, Montana 

Stewart A. Pearce 11, Deputy County Attorney, argued, 

Kalispell, Montana 

Submitted: March 2, 1978 
Mr. Justice John 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, for post-conviction relief. 

The factual background to petitioner's case is: On 

October 24, 1975, leave was granted for the direct filing of 

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 to the charge of robbery. The 

charge of aggravated assault was dismissed without prejudice. 

On November 5, petitioner testified in the trial of Melody 

Boykin, one of the four other persons arrested for the same 

offense as petitioner. Following a November 25 presentence 

hearing, petitioner was sentenced to 40 years for the crime 

of robbery. 

This sentence was subsequently reviewed by the Sentence 

Review Board on February 20, 1976. The Board decided the 

sentence was to remain as originally imposed following a 

hearing where petitioner was represented by his original 

court appointed counsel. 

Petitioner next filed a petition for post-conviction 

relief. An evidentiary hearing was held by the District 

Court on this petition. 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 effective assistance of 

counsel? 

2. Was petitioner denied due process of the law in 

light of the factors considered by the District Court 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 failure to state reasons for its decision upholding 

the 40 year sentence? 

Since petitioner is merely attacking the findings and 

conclusions of the District Court, this Court will review 

petitioner's issues in light of the dispositive issue. Does 

substantial, credible evidence exist to support the District 

Court's findings and conclusions? 

Before proceeding to petitioner's issues this Court 

notes that in reviewing an order denying post-conviction 

relief the Court must consider which party the burden of 

proof is placed upon and the scope of review allowed on 

appeal. Petitioner's action was instigated under Montana's 

post-conviction relief statutes sections 95-2601, R.C.M. 

1947, et seq. These statutes are in substantial conformity 

with the Uniform Post-Conviction Procedure Act approved by 

the National Conference of Commissioners on Uniform State 

Laws and the American Bar Association in 1955. See: 11 

Uniform Laws Annotated 483 (1974). Eleven states have enacted 

the Uniform Post-Conviction Procedure Act. Montana, Maryland 

and Oregon retain the 1955 version, while the eight other 

states have adopted the 1966 Revised Act. his Court looks 

to the courts of Maryland and Oregon, and the ether states 

to the extent that the revision does not change the basis of 

decision for relevant interpretations of the Act. 

The petitioner, upon filing a petition for post-conviction 

relief, bears the burden of proving the facts justifying the 

relief requested by a preponderance of evidence. ~iller v. 

State, (1976), 32 Md.App. 482, 361 A.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; State v. Hardy, 

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

Luppold v. Lewis, (1977), Mont . ,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 conclusions will not be disturbed if supported 

by substantial evidence and by the law. * * * 

When reviewing evidence it will be viewed in the 

light most 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), 244 N.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 criminal matters; 

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 Possession of Dangerous Drugs from 

being prosecuted." 

On the basis of this finding the District Court concluded that 

the services of petitioner's court appointed counsel were adequate and effective. 

In reviewing the evidence relied upon by the District 

Court we find the following support: 

(1) The original sentencing judge stated the court 

appointed counsel had tough circumstances and facts and did 
the best he could do with what he had to work with. 

(2) Petitioner made voluntary statements to the police 

department in which he admitted facts upon which the Information was based. 

(3) Two of the five people 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 charge was not filed, and that counsel had succeeded 

in reducing the charges as far as possible. Counsel's plea 

bargaining skills prevented 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 sustain his 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 for perjury, a crime with which he was not 

charged and therefore was denied due process of the law. The 

comments include: 

"A. I believe that this defendant was 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. He wasn'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 have done it as perjury. There were 

things about what transpired with this event that 

just were not explained by him that were incredible to me. 

"Q. But you 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." 

Petitioner argues that consideration of perjury in 

sentencing represents a conviction for another crime without 

normal procedural safeguards. This argument represents the 

minority position. See: United States v. Grayson, (3rd Cir. 

1977), 550 F.2d 103, 109; Scott v. 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 

States v. Lustig, (9th Cir. 1977), 555 F.2d 737, 751, cert.denied 

46 LW 3470 (1/24/78); United States v. Sneath, (8th Cir., 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 States v. Nunn, (5th Cir., 1976), 525 

F.2d 958, 960, reh.denied 527 F.2d 1390; United States v. Moore, 

(4th Cir. 1973), 484 F.2d 1284, 1287; United States v. Hendrix, 

(2nd Cir., 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 judge may 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. 
"The effort to appraise 'character' is, to be 

sure, a parlous one, and not necessarily an 

enterprise for which 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 Court made explicit a factor it deened 

material in sentencing the petitioner. "A judge may 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 defendant may give while on the 

witness stand and should not try to sentence in 

a mental vacuum." United States v. Cluchette, 

(9th Cir. 1972)) 465 F.2d 749, 754. 

While the sentencing judge may take into account his 

belief that the defendant was not candid with the court this 

is to be distinguished from the rule that a sentence may 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 States v. Garcia, 

(3rd Cir. 1976), 544 F.2d 681, 685; United States v. Acosta, 

(5th Cir. 1975), 509 F.2d 539, cert.denied 423 U.S. 891, 96 

S.Ct. 188, 46 L ed 2d 122 (1975); United States v. Rogers, 

(5th Cir. 1974), 504 F.2d 1079, 1085, cert. denied 422 U.S. 1042, 
In petitioner's case, his candor was only one factor 

considered by the sentencing judge. The District Court found 

the sentencing judge imposed the 40 year sentence based upon 

the following reasons: 

"9. * * * That Petitioner displayed a significant lack of candor during his testimony at 

the Boykin trial and that Petitioner's attitude 

was extremely poor and therefor that his potential 

for rehabilitation was extremely poor; that Petitioner had had a fairly extensive criminal record 

that included a conviction for Burglary, a felony, 

on October 24, 1972, for which Petitioner had been 

given a two year suspended sentence; that he was 

further convicted of Petty Larceny, with a prior 

on June 14, 1973, for which he had received 27 days 

in jail and 24 month 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 considered many 

factors in sentencing petitioner. The comments 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 consideration while imposing the sentence. In Levine, 

the court said: 

"In this respect the defendant's testimony might 

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 statement of 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 case was 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 sentence within 

the maximum authorized by statute is not cruel and unusual 

punishment. State v. Karathanos, (1972), 158 Mont. 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 the moral sense of the 

community or of justice", it is still cruel and unusual punishment. State v. 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 fell within this exception. This 

was not done. The sentence was within the maximum punishment 

for the crime of robbery as mandated by the legislature. The 

sentence was subsequently reviewed by the Sentence Review Board 

and left as originally imposed. Given the function of the 

Sentence Review Board, section 95-2503, R.C.M. 1947, this decision 

amounts to an implicit finding that the sentence was not so 

greatly disproportionate to the crime. 

Finally, the sentence imposed was based upon numerous 

reasons. One reason enunciated by the sentencing judge was 

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. State v. 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 residence 
here 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 that you were 

sorry for what 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 sorry you got caught? 

A. Yeah." 

No abuse of discretion appears from the record. The 

District Court had sufficient evidence to conclude the sentence 

was not cruel and unusual. 

Issue 4. We find no merit to this assignment of error. 

Petitioner merely makes a bald assertion of error in that 

the Sentence Review Board failed to state the reasons why 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: 

It was 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 to whether a trial judge determined 

that defendant comitted perjury. 

The majority entirely misconceives the nature of the 

problem presented and the standards of review to be applied to 

the District Court 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 40 years in prison for 

robbery. Due to the nature of the offense and defendant's previous criminal background, there is no doubt defendant was 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 it believes the defendant committed perjury, or in 

the softer terminology some courts prefer 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 sentence was 

improper. At the post-conviction hearing he testified: 

"a. But you 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." 

(Emphasis added. ) 
The sentencing judge also explained what he meant by defendant's 

lack of candor: 

"He wasn'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 

to me." (Emphasis added.) 

Clearly, this is an unequivocal admission from the sentencing judge that he added 15 years to defendant's sentence 

solely because "he didn't tell the truth" at the Melody Boykin 

trial. 

The majority gave no factual background of the circumstances surrounding the Melody Boykin trial. Defendant and four 

others, including Melody 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 these people plead guilty to 

robbery and the aggravated assault charges were dismissed without 

prejudice. It was 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 Boykin was acquitted, much to the disappointment of the 

District Court judge who presided over the trial and who was 

later to sentence defendant. The trial court obviously thought 

defendant did 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 sentencing discretion. 

The majority erroneously relied on the findings made by 

the trial court at the conclusion of the post-conviction proceeding, quoting in full from finding number nine. However, 
these findings were not made on the basis of the sentencing 

court's testimony at the post-conviction hearing. Rather, they 

were based entirely on the record of the sentencing hearing. 

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 not work that way. 

In Worden v. Alexander, (1939), 108 Mont. 208, 90 P.2d 

160, a trial judge who 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 judge who 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 carry with it 

the presumption usually indulged in favor 

of such order. * * *n 108 Mont. 211-212. 

This Court extended this principle of review to findings 

and conclusions where one trial judge enters findings and conclusions in a case over which he did not preside. Phalen v. 

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-conviction hearing, he was clearly in error that the 

entire sentence was made for a variety of justifiable reasons. 

It is obvious that the District Court totally ignored the testimony of the sentencing judge who admitted he added 15 years to 

the sentence because the defendant did not tell the truth at the 
Melody 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 the majority does ignore the record when it states: 

"The record shows the sentencing judge 

considered many factors in sentencing petitioner. 

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 consideration while iriposing 

sentence. * * *" (Emphasis added.) 

It is simply not a matter of taking defendant's candor into consideration; it is a matter of sentencing him 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 sentence would have been 25 years in prison rather than 

40. 

The apparent reasoning of the majority is that a defendant's 

candor may be considered and apparently used 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: 
"The perjury rationale for increasing 

sentence may be viewed from two different perspectives. It may 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 

fix punishment for this offense, is imposing 

an additional sentence because the defendant 

has committed the second crime of perjury. Or 

the court may 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. Since perjury is properly punishable in a separate criminal proceeding, a 

summary adjudication by 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 conviction must be taken as a 

repudiation of his testimony, the judgment in 

the initial case would undoubtedly be inadmissible evidence in a subsequent perjury proceeding. 

In light of this doctrine, the practice of conclusively presuming the commission of perjury 

from the fact of conviction is particularly 

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 

defendant would have his procedure protections. As stated in 

66 Yale Law Journal 204, 213-214: 

"A defendant is not always entitled to a 

separate trial on the issue of perjury; lying 

under oath in a judicial proceeding may at times 

be punishable as criminal contempt. Under rule 

42(a) of the Federal Rules of Criminal Procedure, criminal contempt may be punished summarily 

if the judge certifies that the conduct constituting the contempt was committed in the presence 

of the court. However, the Supreme Court has 

held that perjury 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 has 
evoked considerable confusion, it is questionable whether the requisite obstruction of 

justice could be said to occur when the defendant has 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 summary punishment of the contemnor without due notice 

and hearing." 

However, when a sentencing court punishes the defendant 

by an increased sentence as though he had committed perjury, he 

deprives the defendant of the procedural protections that he would 

have had in a criminal contempt proceeding. In 66 Yale 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 result he could not have effected 

directly. The rigid requirements which must 

be met for perjury 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 due process. Such 

a policy is jeopardized when a judge increases 

sentence for another crime to discipline a defendant whose 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 its power. At first glance, 

such a practice does not seem objectionable. 

However, it should be noted that a sentence 

within the legal limits provided for the proven 

crime is not usually subject to appellant review. Accordingly, a defendant whose sentence 

has been increased as a penalty for perjury 

felt to constitute contempt is denied the right 

of appeal which he would have enjoyed if the 

court had followed the standard procedure for 

summary punishment of contempt. Such a deprivation is particularly significant in view of 

the frequent misapplication by trial courts of 

the standards for punishing perjury as criminal 

contempt." 
See also, Scott v. 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 this practice. 

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 reformation or repentance? This point has 

also been discussed in 66 Yale Law Journal 204, 216-217, where 

the author states: 

"The prior 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 sources of 

information. Viewed from this perspective, 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 defendant pleading 

guilty to the same offense but otherwise possessing an identical criminal record, 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 

crime would 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 plea may 

appear to be a far more profitable choice than 

an effective false denial at trial. When perjury 

is avoided for reasons of expediency, not principle, it is debatable whether the defendant pleading guilty is a better prospect for reformation 
than one who 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 commit perjury but did not in fact 

do so. Thus in evaluating the character of 

the two defendants, it may sometimes be reasonable to give greater weight to the commission of perjury than to the mere 2ropensity 

to commit perjury." 

It appears that all the cases which have discussed perjury and its effect on a sentence have been situations where the 

trial judge, in his infinite wisdom, has determined that the defendant perjured 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 

the majority, 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 even more 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 situation where the defendant has 

testified at another's trial. 

I suggest another reason why a judge should not consider 

perjury as a reason to augment a sentence. From practical 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 careless with 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 is done in criminal cases, after a 
defendant is convicted, is the sentencing judge then has the 

hammer over the defendant's head--and, at sentencing, the hammer 

falls. Even though he knows perjury could not be proven if a 

criminal charge were filed, and perhaps even a criminal contempt 

charge would 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 law denies 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 arrogance of the court system where the trial 

court is permitted 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 the majority 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 how many years, if any, were added because the trial judge believed the defendant committed perjury, 

or, more delicately, was not candid. In most of the situations 

the defendant was sentenced to far less than the maximum. Additionally, in most cases the sentence imposed does not indicate 

that the trial court placed undue emphasis on the defendant's 

lack of candor. None of them came close to adding 15 years to a 

sentence because of a defendant's lack of candor. 

The first case cited by the majority, United States v. 

Lustig, (9th Cir. 1977), 555 F.2d 737, was a situation where the 

defendant was convicted of distributing and conspiracy to distribute cocaine. The maximum penalty was not stated. ~fter the 

verdict the prosecuting attorney commented that defendant may 
have perjured himself testifying in his defense. Defendant was 

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 States v. Cluchette, (9th Cir. 1972), 465 F.26- 

749, the defendant was convicted of passing counterfeit bills. 

The maximum sentence was 15 years on each count. The sentencing 

record showed that the sentencing judge believed defendant had 

been "less than candid" in his trial testimony. Defendant was 

sentenced to 18 months on each of two counts, to run concurrently. 

The appellate court stated that there was "no evidence the judge 

was biased or prejudiced", and that the sentence imposed "forecloses any thought that the judge was unfair * * *." 465 F.2d 754. 

In United States v. Sneath, (8th Cir. 1977), 557 F.2d 145, 

the defendant was convicted of interstate transportion of stolen 

motor vehicles. The maximum sentence was not stated. The presentencing investigation alleged defendant had lied to the FBI. 

The court sentenced defendant to 18 months in prison. Defendant 

contended the trial court relied on this presentence 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 a major 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. 

In United States v. Levine, (7th Cir. 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 

judge may have believed defendant perjured himself, and may have 

considered that (it did not know whether he had), the record 

shows that the trial court considered many factors, several of 

which independently supported the sentence. 

In United States v. Wallace, (6th Cir. 1969), 418 F.2d 

876, the defendant was convicted of removing $3.00 in currency 

from a letter entrusted to him. Defendant was convicted in a 

nonjury trial, and at sentencing the judge commented that defendant's guilt was proven to "a mathematical certainty". 418 F.2d 

877. The court also commented it would almost certainly have 

granted probation if defendant had 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 court did hold 

it was proper to consider defendant's testimony at trial in imposing sentence. 

In United States v. Nunn, (5th Cir. 1976), 525 F.2d 958, 

the defendant was convicted of transporting illegal aliens. 

Neither the maximum sentence nor the sentence actually given was 

disclosed. The appellate court stated, without explanation, that 

consideration of perjury in sentencing is permissible. 

In United States v. Moore, (4th Cir. 1973), 484 F.2d 1284, 

the defendant was convicted of receiving a stolen vehicle. He 

was sentenced to four years in prison. The maximum sentence was 

greater. In sentencing the judge considered that the defendant 

had "testified falsely" at this trial. The appellate court allowed the four year sentence to stand on the broad ground "* * * 

that a sentencing judge may 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 future when it stated: 
"* * * It is better in the usual case for the 

trial judge who suspects perjury to request an 

investigation. Then, if the facts warrant it, 

the United States Attorney may institute prosecution 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. 

In United States v. Hendrix, (2nd Cir. 1974), 505 F.2d 

1233, the defendant was convicted of possession with intent to 

distribute cocaine and marijuana. The maximum 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 defendant perjured 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 state which gives carte blanche to sentencing judges 

to sentence for perjury, or the more delicate term of "lack of 

candor" . 

There are a multitude of policy factors which 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 States v. Moore, supra, best 

stated it: 

"I suggest one more reason why a trial 

judge should never impose additional punishment because of his belief that a defendant 

lied in his own defense: he may be wrong. * * *" 484 F.2d 1288. (Emphasis added.)