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State v. Lindsey5/4/1999
al system, stands there he could care less. Just a way of life, I guess. Be that as it may." Id. at 716.
Thereafter, in imposing a fine upon the appellant, the trial court stated "its purpose was to reimburse the government for the cost of the jury trial..." Id. On appeal, the court found that the trial Judge's comments gave rise to an inference that the defendant "was punished more severely because of his assertion of the right to trial by jury--Accordingly, in order to avoid the 'chilling effect' upon the exercise of the right to trial presented by even the appearance of such a practice, we conclude that the sentence imposed on Medina-Cervantes must be vacated." Id. at 716-17 (emphasis added). The case was then remanded for resentencing.
The facts in Hess and Medina-Cervantes are almost identical to those in the instant case. Although I do not doubt the good faith of the trial court, the comments imply that Mr. Lindsey's sentence may have been enhanced for challenging the state's evidence and for testifying as to his own recollection of the incident. Any enhancement of his sentence based on those factors serves to punish Mr. Lindsey for exercising his right to a full and fair trial. " ince the tenor of the court's observation is not entirely clear, and because the remedy is relatively painless, believe the trial court should be afforded an opportunity to fully examine sentencing procedure and to consider the factors which motivated the sentence imposed." Hess, 496 F.2d at 938. For the public to have confidence that the constitutional right to a jury trial is sacrosanct, even the appearance that punishment is being enhanced because of exercise of that right must be remedied. Otherwise, the protection of the Fifth Amendment, declaring our right to plead not guilty, and the Sixth Amendment, declaring the right to a jury trial, are "of no value, and--might as well be stricken from the Constitution." Weeks v. United States, 232 U.S. 383, 393, 34 S.Ct. 341, 344 (1914).
For these reasons, I would remand the case to the trial court solely for the purposes of resentencing. In all other respects, I concur in the majority opinion.
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