TO APPELLATE REVIEW OF SENTENCES, APPROVED DRAFT, 1968, STANDARD 2.3(3): "The Sentencing Judge should be required in every case to state his reasons for selecting the particular sentence imposed. Normally, this should be done in the presence of the defendant at the time of sentence."
For a plea from a federal district court judge which also calls for an articulation of the rationale for the sentence imposed, see Frankel, Lawlessness In Sentencing, 41 U. CINN. L. REV. 1, 9-16 (1972).
In other contexts, dispositional authorities have been required to give reasons for their decision. For example, Monks v. New Jersey State Parole Board, 58 N.J. 238, 277 A.2d 193 (1971) held that the Parole Board must give reasons for a denial of parole.
Given the articulated state policy of treating multiple offenders more harshly with regard to sentencing than other offenders, it is reasonable to require, on the particular facts of this case, that the sentencing judge articulate a basis for the sentence imposed. This is not to say that the sentencing judge does not have broad discretion to choose between the many sentencing options available, nor should this opinion be read to indicate that the same sentence may not be imposed again upon resentencing. It is, however, incumbent upon the trial judge to state why the petitioner received the same sentence he received when characterized as a multiple offender, if in fact, there is a basis for doing so.
The sentence of five to ten years to be served consecutively with petitioner's current sentence of three to six years is hereby vacated, and the state court is instructed to resentence the petitioner.
There is some authority to the effect that in habeas corpus proceedings the only relief available is discharge from custody. In recent years, however, the relief which a federal court may fashion in a habeas corpus proceeding has been considerably broadened.
In Peyton v. Rowe, 391 U.S. 54, 66, 20 L. Ed. 2d 426, 88 S. Ct. 1549 (1968) the United States Supreme Court pointed out: "But the statute does not deny the federal courts power to fashion appropriate relief other than immediate release."
In a similar vein, the Court pointed out in Carafas v. La Vallee, 391 U.S. 234, 20 L. Ed. 2d 554, 88 S. Ct. 1556 (1968) that "the statute does not limit the relief that may be granted to discharge of the applicant from physical custody. Its mandate is broad with respect to the relief that may be granted. . . . The 1966 Amendments to the habeas corpus statute seem specifically to contemplate the possibility of relief other than immediate release from physical custody." 391 U.S. at 239.
Recent decisions which have further expanded habeas corpus relief beyond mere discharge from custody, and which cite both Carafas and Peyton with approval are: Hensley v. Municipal Court, 411 U.S. 345, 36 L. Ed. 2d 294, 93 S. Ct. 1571 (1973) (Habeas Corpus relief available to one released on bail or his own recognizance); Braden v. 30th Judicial District, 410 U.S. 484, 35 L. Ed. 2d 443, 93 S. Ct. 1123 (1973) (one who is incarcerated in one state and attacks not the conviction but the detainer of another state which has not tried him). See generally Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973).
Given this expanded view of the nature of habeas corpus relief which is available, there can be little doubt that this Court has authority to fashion the relief here granted.
As to petitioner's claim of a denial of a fair trial in that the indictment read to the jury indicated that he was under arrest "upon a charge of possession and sale of narcotics," and the admission of testimony regarding a sale of narcotics, there is no basis for disturbing the findings of the state trial court. The trial court found that the record did not substantiate the petitioner's claim that evidence regarding a prior sale of narcotics was ever heard by the jury. Because no such testimony was heard by the jury, it was reasonable to conclude, as did the trial court, that the petitioner was not prejudiced by the language in the indictment, or its subsequent deletion by the court.
It is ORDERED on this 4th day of April, 1974, that the petition for habeas corpus is granted in part, and denied in part. Petitioner's sentence of five to ten years consecutive to his prior sentence imposed on March 23, 1970, is vacated, and the state court is hereby instructed to resentence petitioner, setting forth the reasons for the sentence it chooses to impose, in accordance with the foregoing opinion.
Since the preparation of this Opinion, to be noted with interest in the recent statement by Chief Justice Hughes of the New Jersey Supreme Court wherein several of the problems of sentencing, noted herein, were discussed. N.Y. Times at p.41, April 5, 1974. The remedies proposed by the Chief Justice are not unlike those suggested in the instant Opinion.
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