§706-609  Resentence for the same offense or
for offense based on the same conduct not to be more severe than prior
sentence.  When a conviction or sentence is set aside on direct or
collateral attack, the court shall not impose a new sentence for the same
offense, or for a different offense based on the same conduct, which is more
severe than the prior sentence. [L 1972, c 9, pt of §1]



 



COMMENTARY ON §706-609



 



  This section is derived from the American Bar Association's
Standards Relating to Sentencing Alternatives and Procedures.[1]  The section
is self-explanatory.  The reasons which compelled the American Bar Association
Project to recommend this section have been well stated in the commentary to
the Standards.  We yield to the temptation to quote that commentary at length:



There are
three reasons which have led the Advisory Committee to this view.  The first
relates to the selection process which leads to the possibility of an increased
sentence.  The only argument which can justify an increase following a re-trial
is that the original sentence was too light, either because the first judge was
too lenient or because new facts have been presented.  However, the only class
of persons who are vulnerable to this argument consists of those who have exercised
the right to challenge their convictions.  There is no basis for believing that
there exists any rational correspondence between this group and those offenders
who may indeed deserve an increase....



The second
argument is closely related.  The risk of a greater sentence as the result of
the assertion of the right of review necessarily acts as a deterrent to the
exercise of the right.  The issue thus posed is whether this is a desirable
result.  The Advisory Committee believes that it is not.  The extent of the
pressure placed on an individual defendant bears no relation to the degree of
injustice which may have been perpetrated.  A system which fears the assertion
of error to a degree that it must place artificial deterrents in the path which
leads to review is not a healthy system.  There can also be adverse effects on
the rehabilitative effort of the individual defendant who believes that he was
wronged but is told that he may have to subject himself to the possibility of a
greater wrong in order to assert any error.



The third
reason which leads the Advisory Committee to this view begins with the
difficulties which a contrary position would invite.  It is a matter of record
that some judges have imposed harsher sentences because of lack of sympathy
with the constitutional rights asserted by some defendants, and in a frank
attempt to minimize the numbers who will assert such rights in the future.  Yet
it is at least clear that greater punishment should not be inflicted on the
defendant because he has asserted his right to appeal.  The only justification
for an increased sentence, as noted above, is either that the first judge was
too lenient or that new facts have been discovered.  A position contrary to the
standard proposed here would thus necessitate in every case a factual inquiry
to determine the motivation of the judge who imposed the new sentence.  As the
Fourth Circuit recently pointed out, it is "impossible, and most
distasteful" for other courts to be required to make that kind of
inquiry.  Patton v. North Carolina, 381 F.2d 636, 641 (4th Cir. 1967).  If the
system can avoid such a result at a cost which is not prohibitive, it most
certainly should do so.  In the Advisory Committee's view, the cost in this
instance particularly in light of the other reasons advanced above is not
significant.



Finally, it
should also be noted that there are substantial constitutional arguments which
can be made against a practice contrary to the proposed standard.  The First
and Fourth Circuits have recently held an increased sentence after a re-trial
to be unconstitutional.  See Marano v. United States, 374 F.2d 583 (1st Cir.
1967); Patton v. North Carolina, 381 F.2d 636 (4th Cir. 1967).  The Third
Circuit has disagreed.  See United States ex rel. Starner v. Russell, 378 F.2d
808 (3d Cir. 1967), cert. denied, 36 U.S. Law Week 3148 (Oct. 9, 1967)....[2]



  The Code finds the reasoning of the commentary to the
Standards persuasive and accordingly, in this section, accepts the
recommendation purposed.



 



Case Notes



 



  Section inapplicable to cases where a new sentence, which is
not more severe than a prior sentence, adversely affects a defendant's parole
status.  79 H. 281, 901 P.2d 481.



  This section applies to a situation where the first sentence
was imposed after a trial and the second sentence was imposed after a retrial,
or, where the first sentence was imposed after an unbargained plea and the
second sentence was imposed after a trial.  102 H. 346 (App.), 76 P.3d 589.



  Discussed:  83 H. 507, 928 P.2d 1.



 



__________



§706-609 Commentary:



 



1.  A.B.A. Standards.



 



2.  Id.  Comments at 198-200.