Wednesday, January 11, 2006

Nebraska court of appeals upholds pedophile's harsher sentence on appeal after it vacated first sentence for first judge's inappropriate use of bible passages during sentencing State v. Bruna (Bruna II), 14 Neb. App. 408 Filed January 10, 2006. No. A-05-529. The Appeals Court vacated this defendants sentence the first time because the Sarpy County District court alluded during sentencing to his religious beliefs and other personal experiences. Bruna I The Court vacated the defendants 15-50 year sentence. On remand a different judge from Douglas County upped the defendant's sentence to 20-50. The Court of Appeals finds no North Carolina v Pearce presumption of vindictiveness because the judges changed. Further defendant had no other proof of actual vidictiveness on re-sentencing. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989) holds that a presumption of vindictiveness arises when a defendant receives a harsher sentence after successfully appealing his case.
whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.
Texas v. McCullough, 475 U.S. 134, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986),suggests that no Pearce presumption of vidictiveness arises when different factfinders impose punishment on remand: The presumption is also inapplicable because different sentencers assessed the varying sentences that [the defendant] received. In such circumstances, a sentence "increase" cannot truly be said to have taken place. .
In the case before us, the procedural history does not support Bruna's position that his successful appeal was the motivation for the greater sentence. The second judge did not have a personal stake in the first sentence or a personal motive for vindication, and like the U.S. Supreme Court in Texas v. McCullough, 475 U.S. 134, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986), we decline to base the presumption on speculations of judicial vindictiveness.
Finally on plain error review the Court finds no actual vindictiveness on resentencing. The offending Bible passages that the same District Judge had cited in State v Pattno, another sexual offense case the judge had handled and had the Supreme Court reverse were: Romans 1:21-23: "Ever since the creation of the world his invisible nature, namely, his external power and deity, has been clearly perceived in the things that have been made. So they are without excuse; for although they knew God they did not honor him as God or give thanks to him as God, but they became futile in their thinking and their senseless minds were darkened. Claiming to be wise, they became fools, and exchanged the glory of the immortal God for images resembling mortal man or birds or animals or reptiles. Romans 1:26: "Therefore God gave them up in the lusts of their hearts to impurity, to the dishonoring of their bodies among themselves, because they exchanged the truth about God for a lie and worshiped and served the creature rather than the Creator, who is blessed for ever [sic]. Amen. Romans 1:26: "For this reason God gave them up to dishonorable passions. Their women exchanged natural relations for unnatural, and the men likewise gave up natural relations with women and were consumed with passion for one another, men committing shameless acts with men and receiving in their own persons the due penalty for their error."

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