decided: October 28, 1977.
COMMONWEALTH OF PENNSYLVANIA
GERALD BETHEA, APPELLANT
Joshua D. Lock, Public Defender, Marilyn C. Zilli, Asst. Public Defender, Harrisburg, for appellant.
LeRoy S. Zimmerman, Dist. Atty., Marion E. MacIntyre, Second Asst. Dist. Atty., Reid H. Weingarten, Harrisburg, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., filed a concurring opinion. Eagen, C. J., dissents and would affirm the judgments of sentence.
[ 474 Pa. Page 573]
OPINION OF THE COURT
Gerald Bethea, the appellant, was convicted by a jury of aggravated robbery, assault with intent to maim, and unlawfully carrying a firearm. No post-verdict motions were filed, and appellant was sentenced to concurrent prison terms of, respectively, ten to twenty years, two and one-half to five years, and one and one-half to three years. The Superior Court affirmed the judgments of sentence. Commonwealth v. Bethea, 243 Pa. Super. 494, 366 A.2d 262 (1976).*fn1 This Court then granted appellant's petition for allowance of appeal.*fn2 For the reasons hereinafter indicated, we vacate the judgments of sentence and remand the case for resentencing.
[ 474 Pa. Page 574]
The first issue presented in this appeal is whether a trial court may properly consider a defendant's decision to stand trial as a factor justifying the imposition of a more severe sentence than would have been imposed had the defendant pleaded guilty. In Commonwealth v. Staley, 229 Pa. Super. 322, 324 A.2d 393 (1974), the Superior Court decided this question in the negative.*fn3 The appellant asserts that by its present decision the Superior Court failed to adhere to Staley, an error we are asked to correct.
In Commonwealth v. Staley, supra, the Superior Court vacated a sentence and remanded for resentencing on the ground that the trial judge had indicated in his pre-sentence comments that he was going to impose a harsher penalty because the defendant had chosen to stand trial rather than plead guilty.*fn4 Quoting from Baker v. United States, 412 F.2d 1069, 1073 (5th Cir. 1969), the court in Staley observed:
[ 474 Pa. Page 575]
"'An accused cannot be punished by a more severe sentence because he unsuccessfully exercised his constitutional right to stand trial rather than plead guilty. See Thomas v. United States, 368 F.2d 941 (5th Cir. 1966); United States v. Martell, 335 F.2d 764 (4th Cir. 1964); United States v. Wiley, 278 F.2d 500 (7th Cir. 1960).'" Commonwealth v. Staley, supra, 229 Pa. Super. at 324, 324 A.2d at 395.
The Staley opinion went on to declare that although "a plea of guilty may be a proper factor for a judge to consider in deciding whether to give a more lenient sentence . . . [a] plea of not guilty or a demand for a jury trial are not factors that a judge should consider in deciding whether to give a more severe sentence." Id. 229 Pa. Super. at 324, 324 A.2d at 395.
We believe the Staley principle that a demand for a jury trial is not a factor which warrants escalating the severity of a sentence is sound.*fn5 That principle is premised primarily upon the rationale that the right to a trial by jury is a fundamental one, constitutionally guaranteed to all criminal defendants,*fn6 and that a practice which exacts a
[ 474 Pa. Page 576]
penalty for the exercise of the right is without justification and unconstitutional.*fn7 The price exacted by imposing a harsher sentence on one who chooses to put the state to its proof by a jury trial rather than plead guilty is obvious. Not only is the individual defendant penalized for the present exercise of his constitutional right but, should the practice become sufficiently well known within a given jurisdiction, a substantial chilling effect on the exercise of the right would inevitably ensue.
Although a practice which burdens the exercise of a fundamental constitutional right sometimes may be justified upon a showing that a compelling state interest, incapable of achievement in some less restrictive fashion, outweighs the interest protected by the right, see, e.g., United States v. Jackson, 390 U.S. 570, 581-84, 88 S.Ct. 1209, 20 L.Ed.2d 138, 147-48 (1968); Scott v. United States, 135 U.S.App.D.C. 377, 382-384, 419 F.2d 264, 269-71 (1969), the Commonwealth here does not contend that the imposition of a more severe sentence on a defendant who chooses to stand trial rather than plead guilty fosters such a compelling interest, and in fact, appears to concede the validity of Staley. See Brief for Appellee at 9. Nor do we perceive any state interest which would justify the substantial infringement of a defendant's right to trial by jury which results from the practice of imposing harsher penalties on those who choose
[ 474 Pa. Page 577]
to stand trial.*fn8 Accordingly, we reaffirm the Superior Court's holding in Commonwealth v. Staley that it is constitutionally impermissible for a trial court to impose a more severe sentence because a defendant has chosen to stand trial rather than plead guilty.*fn9
[ 474 Pa. Page 578]
It remains to determine whether the learned trial judge in this case penalized appellant by consideration of appellant's decision to stand trial. The source of the dispute is the italicized portion of the following statements made by the judge prior to the imposition of sentence:
"THE COURT: Well Gerald, it's a great shame, but you are going to learn in life that you have a responsibility for your actions, and it is not only your interests that have to be taken into account but it is the interest of the community. This was, as I say, an aggravated crime. As far as I'm concerned, even though it is your first offense I think substantial punishment must be inflicted here. If you had pled guilty, perhaps you were involved, there is no question in my mind, but had you pled guilty it might have shown me the right side of your attitude about this, but you pled not guilty, fought it all the way, and the jury found you guilty, and I'm going to sentence you at this time.
"The sentence of the Court is that the defendant pay the cost of prosecution and that he undergo imprisonment in a state institution for a period of not less than ten nor more than twenty years to begin and be computed from January 27, 1973. That's in No. 236 Criminal Division 1973."*fn10 (Emphasis added.)
[ 474 Pa. Page 579]
In his appeal to the Superior Court, appellant relied heavily on Commonwealth v. Staley, supra. The majority opinion in the Superior Court distinguished Staley on the ground that, unlike the trial judge in Staley, the trial judge in the case at bar did not base the sentence exclusively on appellant's failure to plead guilty, but rather "based the sentence on the violent nature of the crime and the fact that appellant had shown no remorse."*fn11 Commonwealth v. Bethea, supra, 243 Pa. Super. at 500, 366 A.2d at 265. We agree with the Superior Court in this distinction, but the correct inquiry in a case such as this is not whether the trial court considered
[ 474 Pa. Page 580]
legitimate factors in fixing sentence, but whether it considered only such factors. This is so because any increase in sentence which results from a defendant's decision to put the state to its proof puts a price upon the exercise of a fundamental constitutional right, and hence is unjustified. Thus, a sentence based in part on an impermissible consideration is not made proper simply because the sentencing judge considers other permissible factors as well.
In deciding whether a trial judge considered only permissible factors in sentencing a defendant, an appellate court must, of necessity, review all of the judge's comments. Moreover, in making this determination it is not necessary that an appellate court be convinced that the trial judge in fact relied upon an erroneous consideration; it is sufficient to render a sentence invalid if it reasonably appears from the record that the trial court relied in whole or in part upon such a factor.
Applying the above principles to the case at bar, we are persuaded that appellant's sentences must be vacated. A fair reading of the trial court's remarks prior to the imposition of sentence, see pages 105-106, supra, indicates that the judge may have been influenced by the fact that appellant chose to stand trial rather than plead guilty, with a possible resultant augmentation of the sentences imposed. Accordingly, we conclude that appellant's sentences must be vacated and the cause remanded for resentencing.
The order of the Superior Court is vacated, the judgments of sentence are vacated, and the case is remanded for resentencing consistent with this opinion.
MANDERINO, Justice, concurring.
I agree with the majority that an accused cannot be punished by a more severe sentence because he chose to
[ 474 Pa. Page 581]
exercise his constitutional right to stand trial rather than plead guilty. Here, the majority concluded that the sentencing judge may have been improperly influenced by appellant's choice to stand trial rather than plead guilty. The record, however, clearly reveals that the judge was so influenced. Our constitutional duty is thus to take the unequivocal position that the sentence imposed here is inappropriate. We give no realistic protection to a person's constitutional right to stand trial before his peers when we tell sentencing judges that their sentences may have been proper ones even though they imposed a harsher sentence than would have been imposed had the appellant pleaded guilty.
Although the majority does not reach the issue, it makes no sense to suggest that a refusal to plead guilty and stand trial may not be considered as a factor in sentencing a defendant, but a guilty plea could be considered by a sentencing judge as a mitigating factor in a proper case. The chilling effect is the same in either situation; an accused who believes he can get a lighter sentence by pleading guilty will eschew his right to a trial by jury and enter a guilty plea. Moreover, it seems incongruous to suggest that a judge may not penalize an accused for not pleading guilty, but can reward the accused for pleading guilty. The ABA Standards noted in the majority opinion at footnote 5, supra, not only defy logic but also place an impermissible chill on the exercise of the right to trial by jury.