Supreme Court Passes|on Vindictiveness Claim

     (CN) – A divided Supreme Court refused to take up the case of a West Virginia inmate who claimed his sentence on a burglary charge was vindictively extended after he unsuccessfully attempted to escape from prison.
     Timothy Jared Austin was serving a prison term for breaking and entering at the Huttonsville Correction Center in West Virginia, when he walked away from an inmate road crew. After he was apprehended, Austin pleaded guilty to attempted escape and was sentenced to one to three years on the charge.
     At sentencing, the trial judge had to determine when Austin should begin serving his sentence, a decision that was complicated by the fact the inmate was expected to become eligible for parole for his earlier crime, in March 2010, a date just months away from the hearing.
     The trial judge noted Austin’s attempted escape had not been violent, but nevertheless concluded it was a breach of trust on the inmate’s part.
     He sentenced Austin to one to three years for the escape attempt, but ruled the sentence should not start until March 2010, meaning the inmate would have to wait at least another year before being eligible for parole.
     “If the parole board wants to parole you on both [charges at that time], that’s fine, and if not, well, you’ll remember that next time you go for a little stroll,” the trial court said.
     Austin filed an expedited motion to correct his sentence, arguing that state law prohibited the trial court from imposing a sentence that was neither purely concurrent nor purely consecutive.
     While that motion was pending, he also petitioned the West Virginia Supreme Court of Appeals for a writ of mandamus to the trial court to respond to the motion. This prompted the trial court to amend its sentencing order, but the end result was even worse for the inmate as it resulted in a longer total sentence.
     Austin then appealed to the West Virginia Supreme Court, arguing that the court should presume that the trial judge had acted vindictively when he filed the amended sentencing order.
     The state Supreme Court rejected the appeal, explaining that it was clear that the trial judge acted only to clarify his intention in the original sentencing order. Austin then turned to the federal court, seeking a writ of habeas corpus based on the same claim of judicial vindictiveness.
     The district court denied the application, but on appeal, the 4th Circuit reversed, concluding the West Virginia Supreme Court’s decision was based on an unreasonable determination of the facts. It then applied the presumption of vindictiveness, a doctrine the U.S. Supreme Court created in 1969.
     As crafted by the high court, the presumption of judicial vindictiveness applies when a judge imposes a more severe sentence upon a defendant after a new trial. But the court also cautioned that the presumption should only be applied in situations where there was a reasonable likelihood that the increase in sentence was the product of actual vindictiveness on the part of the sentencing authority.
     In the wake of the Supreme Court’s action, some appellate courts took a narrow view of the presumption and concluded that it applies only when there’s a triggering event, like a reversal of a lower court decision by the higher court.
     Other appellate courts have taken a more expansive view, applying it whenever a trial court imposes a higher sentence after granting a motion for corrected sentence.
     While recognizing that the trial judge had not been reversed by a higher court, the 4th Circuit took the later view, concluding the presumption applied because “when [the defendant] was resentenced, he was exercising rights guaranteed under the statutes and Constitution of West Virginia.”
     As is its custom, the court majority did not explain why it chose not to take up the case. But Justice Clarence Thomas believes they made a mistake in failing to do so, and wrote a dissent that was joined by Justice Antonin Scalia.
     “This Court should have granted certiorari to review the Fourth Circuit’s decision for a number of reasons,” Justice Thomas wrote. “To begin with, that decision is in tension with our precedents … this Court has already rejected the ‘view that the judicial temperament of our Nation’s trial judges will suddenly change upon the filing of a successful post-trial motion.’ … To presume otherwise is to show profound disrespect to our fellow jurists. And that disrespect is even more pronounced in cases like this one, when federal judges are reviewing state criminal proceedings.
     “The Fourth Circuit’s decision merits review for an additional reason: It deepens existing disagreement between the Courts of Appeals over the scope of the presumption of vindictiveness,” Thomas continued. “Our precedents have created this confusion, first by endorsing a presumption that is at odds with the respect we ordinarily accord our Nation’s judges, and then by chipping away at that presumption in a piecemeal fashion.
     “We should not abdicate our responsibility to clean up a mess of our making. … It is time to revisit and clarify when, if ever, a presumption of judicial vindictiveness is appropriate,” Thomas wrote.

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