Court of Appeals Hand Down 6/29/10

Chisolm v. State.  Chisolm was convicted of sexual battery of a 9 year old and was subsequently sentenced to 30 years.  (Mandatory  is now the term du jour)  Chisolm sole issue on appeal is that he received a larger sentence based on the fact he exercised his right to trial.  He based that belief on a pre-trial warning given by Judge Johnson.

BY THE COURT: And it puts a lot on the Court because in a district where they have plea bargaining, the DA can come to you and say, well, if you plead guilty we’ll recommend. This would be our recommendation of sentence.One of the primary things that’s involved in this case from everybody’sviewpoint, clearly the State’s, the idea of a nine-year-old child having to get up on the witness stand in front of a lot of people here in court and relate things of a very personal nature to people, and I just want to make you understand that in the event that you’re found guilty, that’s clearly one of the things I take into consideration.

BY [CHISHOLM]: Yes, sir. I understand.
BY THE COURT: I hope you understand what I’m saying here because we are fixing to cross a bridge that can’t be uncrossed. I don’t know what the evidence is going to show in this case or what the jury is going to do, but I just want you to understand and let me say this. It’s not a matter of – you have an absolute right to go to trial, but in the event that you are found guilty, that will be one of the things I take into consideration. Do you understand that?
Chisholm responded, “[y]es, sir.”

After the conclusion of the trial, a Jury found Chisolm guilty and the Court, during the sentencing phase said:

First of all, it’s disgusting what happens when a child nine years of age is . .. not given a chance to grow up, but just immediately jump[s] in the wor[l]d

of sex with an adult. That is disgusting enough, and that’s horrifying enough for a child to go through, but you know what a lot of people think is worse

than that[?] . . . [T]hat’s when that child has to come up here and sit up here in public on a witness stand in front of a bunch of strangers on a jury and people

in their family that they know out there in the courtroom and have to go through it in detail. That’s what’s just as bad, and I have had a lot of people

in your situation come up here that do despicable acts, and I am going to tell you, everybody – – I firmly believe that when you commit an act, you ought to

be given a chance to do right after it and given a second chance, and a lot of people sitting in your situation do the right thing afterwards, and you know

what they do? They come up here and admit what they do and be a man about it, and they save a child from having to go through the second trauma which

is coming up here and testifying, but you chose not to do that. I don’t know who you were listening to or what, but you apparently at some point you told –

– admitted to law enforcement what you did,[3] and the evidence is you admitted to the child’s grandmother what you did . . . , but be that as it may,

this is America and you have a right to a public trial, and you chose to do that and chose to put that child through this even in the face of all this compelling

evidence. So I’m sitting up right here and trying to find a reason to cut your sentence down and be lenient with you, and I can assure you if you had been

straight forward with this Court as apparently you were willing to do at one time and admit your guilt and come forward and had done that, I would be

looking at you as far as a sentence a lot differently, but this is a despicable act. . . . You have had your day in court. You have had your right, and I just hope

this child can move on with her life. I know you’re sitting up here and you’re worried about your children, but you know what? You know who’s fault that

is? You know who caused that to come about? You. We’re accountable for our actions. And I wish you had done the right thing after this had happened

and save[d] this child from testifying, but I just hope this nine-year-old child . . . can go on with her life and find some type of normalcy . . . . In summary,

I see no reason to deduct a single day from what you can get.

The Court held that it is impermissible for a trial court to impose a harsher sentence due to a Defendant exercising their right to trial.  They said that wasn’t the case here. It was “imminently clear” that the trial judge was not maxing Chisolm out because he had gone to trial, but because he did not accept responsibility for his actions.  The Court said that Chisolm, even after addressing the Court, did not show remorse for his actions.  His speech to the Court is not quoted.


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