                             No. 13651
        IN THE SUPREME COURT OF THE STATE OF XONTANA




IN THE MATTER OF STEVEN HOWARD JONES,
               Petitioner.


Appeal from:    District Court of the Eleventh ~udicial~istrict,
                Honorable James M. Salansky,Judge presiding.
Counsel of Record:
   For Appellant:
        H. James Oleson argued, Kalispell, Montana
    For Respondent:
        Hon. Mike Greely, Attorney General, Helena, Montana
        Patrick Springer, County Attorney, Kalispell, Montana
        Stewart A. Pearce 11, Deputy County Attorney, argued,
         Kalispell, Montana


                                         Submitted:   March 2, 1978
Mr.    J u s t i c e John C . H a r r i s o n d e l i v e r e d t h e Opinion of t h e C o u r t .

         T h i s i s an a p p e a l from t h e o r d e r of t h e D i s t r i c t C o u r t ,

F l a t h e a d County, d i s m i s s i n g t h e p e t i t i o n of S t e p h e n Howard

Jones, p e t i t i o n e r , f o r post-conviction r e l i e f .

         The f a c t u a l background t o p e t i t i o n e r ' s c a s e i s :              On

October 2 4 , 1975, l e a v e was g r a n t e d f o r t h e d i r e c t f i l i n g of

a n I n f o r m a t i o n c h a r g i n g p e t i t i o n e r w i t h t h e c r i m e s of a g g r a v a t e d

a s s a u l t and r o b b e r y .    On t h a t same d a t e , p e t i t i o n e r a p p e a r e d

b e f o r e t h e c o u r t and c o u n s e l was a p p o i n t e d . On November 4 ,

p e t i t i o n e r p l e a d g u i l t y t o t h e c h a r g e of r o b b e r y .     The

c h a r g e of a g g r a v a t e d a s s a u l t was d i s m i s s e d w i t h o u t p r e j u d i c e .

On November 5 , p e t i t i o n e r t e s t i f i e d i n t h e t r i a l of Melody

Boykin, one of t h e f o u r o t h e r p e r s o n s a r r e s t e d f o r t h e same

offense a s petitioner.                  Following a November 25 p r e s e n t e n c e

h e a r i n g , p e t i t i o n e r was s e n t e n c e d t o 4 0 y e a r s f o r t h e c r i m e

of r o b b e r y .

        T h i s s e n t e n c e was s u b s e q u e n t l y reviewed by t h e S e n t e n c e

Review Board on F e b r u a r y 2 0 , 1976.                  The Board d e c i d e d t h e

s e n t e n c e was t o remain a s o r i g i n a l l y imposed f o l l o w i n g a

h e a r i n g where p e t i t i o n e r was r e p r e s e n t e d by h i s o r i g i n a l

c o u r t appointed counsel.

        P e t i t i o n e r next f i l e d a p e t i t i o n f o r post-conviction

relief.        An e v i d e n t i a r y h e a r i n g was h e l d by t h e D i s t r i c t

C o u r t on t h i s p e t i t i o n .    Following t h e h e a r i n g t h e D i s t r i c t

C o u r t i s s u e d f i n d i n g s of f a c t , c o n c l u s i o n s of law and a n

order dismissing t h e p e t i t i o n .

        P e t i t i o n e r r a i s e s f o u r i s s u e s on a p p e a l :

        1.     Was p e t i t i o n e r a f f o r d e d e f f e c t i v e a s s i s t a n c e of

counsel?

        2.     Was p e t i t i o n e r d e n i e d d u e p r o c e s s of t h e law i n

l i g h t of t h e f a c t o r s c o n s i d e r e d by t h e D i s t r i c t C o u r t f o r

sentencing?
         3.     Was t h e s e n t e n c e o f 4 0 y e a r s f o r t h e c r i m e of

r o b b e r y c r u e l and u n u s u a l punishment?

         4.     Was p e t i t i o n e r p r e j u d i c e d by t h e S e n t e n c e Review

Board's f a i l u r e t o s t a t e reasons f o r i t s d e c i s i o n upholding

t h e 40 year sentence?

         S i n c e p e t i t i o n e r i s merely a t t a c k i n g t h e f i n d i n g s and
c o n c l u s i o n s of t h e D i s t r i c t C o u r t , t h i s C o u r t w i l l r e v i e w

p e t i t i o n e r ' s i s s u e s i n l i g h t of t h e d i s p o s i t i v e i s s u e .   Does

s u b s t a n t i a l , c r e d i b l e evidence e x i s t t o support t h e D i s t r i c t

C o u r t ' s f i n d i n g s and c o n c l u s i o n s ?

        Before proceeding t o p e t i t i o n e r ' s i s s u e s t h i s Court

n o t e s t h a t i n reviewing a n o r d e r denying post-conviction

r e l i e f t h e C o u r t must c o n s i d e r which p a r t y t h e burden of

proof i s p l a c e d upon and t h e s c o p e of r e v i e w allowed on

a p p e a l . P e t i t i o n e r ' s a c t i o n was i n s t i g a t e d under Montana's

p o s t - c o n v i c t i o n r e l i e f s t a t u t e s s e c t i o n s 95-2601,    R.C.M.

1947, e t s e q .        These s t a t u t e s a r e i n s u b s t a n t i a l c o n f o r m i t y

w i t h t h e Uniform P o s t - C o n v i c t i o n P r o c e d u r e Act approved by

t h e N a t i o n a l Conference of Commissioners on Uniform S t a t e

Laws      and t h e American Bar A s s o c i a t i o n i n 1955.                     See:      11

Uniform Laws Annotated 483 ( 1 9 7 4 ) . Eleven s t a t e s have e n a c t e d

t h e Uniform P o s t - C o n v i c t i o n P r o c e d u r e Act.        Montana, Maryland

and Oregon r e t a i n t h e 1955 v e r s i o n , w h i l e t h e e i g h t o t h e r

s t a t e s have a d o p t e d t h e 1966 Revised A c t .                 his C o u r t l o o k s

t o t h e c o u r t s of Maryland and Oregon, and t h e e t h e r s t a t e s

t o t h e e x t e n t t h a t t h e r e v i s i o n d o e s n o t change t h e b a s i s of

d e c i s i o n f o r r e l e v a n t i n t e r p r e t a t i o n s of t h e Act.

        The p e t i t i o n e r , upon f i l i n g a p e t i t i o n f o r p o s t - c o n v i c t i o n

r e l i e f , b e a r s t h e burden of p r o v i n g t h e f a c t s j u s t i f y i n g t h e

r e l i e f r e q u e s t e d by a preponderance of e v i d e n c e .                ~ i l l e v.
                                                                                               r
State,        ( 1 9 7 6 ) , 32 Md.App.      482, 361 A.2d 1521 156; Cooper v .

State,        ( 1 9 7 5 ) , 96 I d a h o 542, 531 P.2d 1187, 1190; Young v . ~ u p p ,
(1971), 8 0r.App. 41, 491 P.2d 1201, 1202; State v. Hardy,


         The scope of review on appeal from an action for post-
conviction relief is the same as stated by this Court in
Luppold v. Lewis, (1977),      Mont   .   ,563 P.2d 538, 540, 34


        "When reviewing findings of fact and conclusions
        of law of a district court, sitting without a
        jury, this Court has repeatedly held such findings
        and conclusions will not be disturbed if supported
        by substantial evidence and by the law. * * *
        When reviewing evidence it will be viewed in the
        light most favorable to the prevailing party
        in the district court, and the credibility of
        witnesses and the weight assigned to their testi-
        mony is for the determination of the district court
        in a nonjury trial."
See:   Hirt v. State, (Minn., 1976), 244 N.W.2d 162; Brudos v.
Cupp, (1973), 14 0r.App. 277, 512 P.2d 1009, 1012; State v.
Valadez, (1968), 79 N.M. 513, 445 P.2d 390, 391.
         Issue 1, Petitioner alleges the District Court erred in
holding that the court appointed counsel rendered adequate and
effective assistance.   The following finding of fact was entered
after the conclusion of the post-conviction relief hearing:
        "10. That Petitioner's counsel, Michael Prezeau,
        was an experienced counsel in criminal matters;
        as one of the two Public Defenders he did handle
        a varied substantial amount of criminal defenses,
        was instrumental in preventing a notice of a prior
        felony being filed, was successful in having the
        second count of Aggravated Assault dismissed, was
        active in the role of advocate for the Petitioner,
        and evidently did play some part in keeping a charge
        of Criminal Possession of Dangerous Drugs from
        being prosecuted."
On the basis of this finding the District Court concluded that
the services of petitioner's court appointed counsel were ade-
quate and effective.
         In reviewing the evidence relied upon by the District
Court we find the following support:
         (1) The original sentencing judge stated the court
appointed counsel had tough circumstances and facts and did
the best he could do with what he had to work with.
        (2) Petitioner made voluntary statements to the police

department in which he admitted facts upon which the Informa-
tion was based.
        (3) Two of the five people involved in the crime had

already plead guilty and agreed to testify at petitioner's
trial if necessary.
        (4) The presentence report showed a basis for filing a
notice of prior felony.
        (5) The sentencing judge testified that due to counsel's
negotiation with the county attorney's office a prior con-
viction charge was not filed, and that counsel had succeeded
in reducing the charges as far as possible.          Counsel's plea
bargaining skills prevented petitioner from being sentenced to
life imprisonment.
        (6) Petitioner made statements during his arraignment
that he was satisfied with the services rendered by his counsel.
        Petitioner failed to sustain his burden of proving he
was denied effective assistance of counsel.          We find sufficient
credible evidence to support the District Court's conclusion
that the services of petitioner's court appointed counsel
were adequate and effective.
        Issue 2.    Petitioner contends the sentencing judge's
comments at the post-conviction relief hearing show he was
sentenced in part for perjury, a crime with which he was not
charged and therefore was denied due process of the law.         The
comments include:
        "A. I believe that this defendant was not as candid
        as he should have been.
        "Q. Now could you explain    * *   *?   A.    Yes, he
        didn't tell the truth.
        "Q. In other words, in effect he committed perjury
        or lied on the witness stand? A. He wasn't candid to
        the Court in that he didn't tell the truth. I
        don't know if you would define it as perjury or
        I would have done it as perjury. There were
        things about what transpired with this event that
        just were not explained by him that were incred-
        ible to me.


        "Q. But you did then in this particular case
        put heavy emphasis in the sentencing on the fact
        that you felt that the defendant was not candid
        in the testimony at the Melody Boykin trial?
        A. About 15 years worth, I think."

        Petitioner argues that consideration of perjury in
sentencing represents a conviction for another crime without
normal procedural safeguards.   This argument represents the
minority position.   See:   United States v. Grayson, (3rd Cir.
1977), 550 F.2d 103, 109; Scott v. United States, (U.S.App.
D.C. 1969), 419 F.2d 264.   The seven other circuits considering
this argument have reached an opposite conclusion.    See: United
States v. Lustig, (9th Cir. 1977), 555 F.2d 737, 751, cert.denied
46 LW 3470 (1/24/78); United States v. Sneath, (8th Cir., 1977),
557 F.2d 149, 151; United States v. Levine, (7th Cir., 1967),
372 F.2d 70, 74, cert. denied 388 U.S. 916, 87 S.Ct. 2132, 18
L ed 2d 1359; United States v. Wallace, (6th Cir., 1969), 418

F.2d 876, 878; United States v. Nunn, (5th Cir., 1976), 525
F.2d 958, 960, reh.denied 527 F.2d 1390; United States v. Moore,
(4th Cir. 1973), 484 F.2d 1284, 1287; United States v. Hendrix,
(2nd Cir., 1974), 505 F.2d 1233, 1234-37, cert.denied 423 U.S. 897,


       We choose to follow the majority position for the
reasons enunciated by Judge Frankel in Hendrix:
       "[That defendant's argument] ignores the nature of
       the sentencing process as it exists in our system
       and of the factors the trial judge may consider
       in exercising a frequently enormous range of
       discretion. If there is no clear consensus on
       these factors, it is certainly clear that they
       include, as aggravating circunstances, conduct
       that is not literally 'criminal,' or at least
       has not been duly adjudged criminal in the case
       in which sentence is being imposed.
        "The effort to appraise 'character' is, to be
        sure, a parlous one, and not necessarily an
        enterprise for which judges are notably equipped
        by prior training. Yet it is in our existing
        scheme of sentencing one clue to the rational
        exercise of discretion. If the notion of
        'repentance' is out of fashion today, the fact
        remains that a manipulative defiance of the law
        is not a cheerful datum for the prognosis a
        sentencing judge undertakes. * * * Impressions
        about the individual being sentenced * * * are,
        for better or worse, central factors to be ap-
        praised under our theory of 'individualized'
        sentencing. The theory has its critics. While
        it lasts, however, a fact like the defendant's
        readiness to lie under oath before the judge who
        will sentence him would seem to be among the
        more precise and concrete of the available
        indicia." 505 F.2d 1235, 1236.
         The District Court made explicit a factor it deened
material in sentencing the petitioner. "A judge may consider the

candor of the defendant on the stand in passing sentence." 555
F.2d 751.   There is nothing offensive in the judge's comments

that the defendant had been less than candid in his sworn testi-

mony.
        "A sentencing judge cannot put out of his mind
        the impression a defendant may give while on the
        witness stand and should not try to sentence in
        a mental vacuum." United States v. Cluchette,
        (9th Cir. 1972)) 465 F.2d 749, 754.

        While the sentencing judge may take into account his
 belief that the defendant was not candid with the court this
 is to be distinguished from the rule that a sentence may not
 be augmented because a defendant refuses to confess or invokes
 his privilege against self-incrimination.    Fox V. State, (1977
 Alaska), 569 P.2d 1335, 1338.   See:   United States v. Garcia,
 (3rd Cir. 1976), 544 F.2d 681, 685; United States v. Acosta,
 (5th Cir. 1975), 509 F.2d 539, cert.denied    423 U.S. 891, 96
 S.Ct. 188, 46 L ed 2d 122 (1975); United States v. Rogers,
 (5th Cir. 1974), 504 F.2d 1079, 1085, cert. denied 422 U.S. 1042,
        In petitioner's case, his candor was only one factor
considered by the sentencing judge.   The District Court found
the sentencing judge imposed the 40 year sentence based upon
the following reasons:
        "9. * * * That Petitioner displayed a signifi-
        cant lack of candor during his testimony at
        the Boykin trial and that Petitioner's attitude
        was extremely poor and therefor that his potential
        for rehabilitation was extremely poor; that Peti-
        tioner had had a fairly extensive criminal record
        that included a conviction for Burglary, a felony,
        on October 24, 1972, for which Petitioner had been
        given a two year suspended sentence; that he was
        further convicted of Petty Larceny, with a prior
        on June 14, 1973, for which he had received 27 days
        in jail and 24 month probation, occurring in the
        State of California.I9
        On the basis of this finding the District Court concluded
the sentencing judge used his sound judicial discretion in
arriving at the sentence imposed.
        The record shows the sentencing judge considered many
factors in sentencing petitioner.   The comments of the sentencing
judge relied upon by petitioner indicate only that the judge
believed petitioner was not candid with the court and took this
into consideration while imposing the sentence.   In Levine,
the court said:
        "In this respect the defendant's testimony might
        properly have been considered, not as punishment
        for the crime of perjury, but as a reflection of
        the character of the person before the court for
        sentencing." 372 F.2d 74.
        Accordingly, we note the statement of the sentencing
judge at the conclusion of the hearing for aggravation or
mitigation of sentence.
        " * * * But that is not the kind of candor 1 am
        looking for and it is not the kind of respect
        for the whole system that I am looking for. What
        I look for in this case was some redeeming social
        quality on your part that would justify risking
        society by giving you a shorter sentence, and I
        can find none. * * * And now the only thing left
        really is not to risk a chance that something will
        happen if you go down there and come out and do
        something. The only thing left now is to protect
        society. And I am sorry about it. We will be in
        recess. "
           Sufficient, credible evidence exists to support the
conclusion of the District Court.        The sentencing judge used
his sound judicial discretion in arriving at the sentence
imposed.
           Issue 3.      It is the general rule that a sentence within
the maximum authorized by statute is not cruel and unusual
punishment.       State v. Karathanos, (1972), 158 Mont. 461, 468,
469, 493 P.2d 326.         Petitioner acknowledges this rule, but argues
if the sentence is so greatly disproportionate to the crime that
it "shocks the conscience and outrage of the moral sense of the
community or of justice", it is still cruel and unusual punish-
ment.   State v. Karathanos, supra; Faulkner v. State, (1968
Alaska), 445 P.2d 815, 818, Anno. 33 ALR3d 335, 363.
        Petitioner had the burden to prove by a preponderance
of evidence that his sentence fell within this exception.          This
was not done.      The sentence was within the maximum punishment
for the crime of robbery as mandated by the legislature.          The
sentence was subsequently reviewed by the Sentence Review Board
and left as originally imposed.        Given the function of the
Sentence Review Board, section 95-2503, R.C.M.        1947, this decision
amounts to an implicit finding that the sentence was not so
greatly disproportionate to the crime.
        Finally, the sentence imposed was based upon numerous
reasons.     One reason enunciated by the sentencing judge was
the protection of society.        We do not engage in the practice
of second guessing the trial judge, who after observing the
demeanor and attitude of defendant, uses his discretion in
fixing the punishment.         State v. Karathanos, supra.    We only
review the cold record.         In this light, we note petitioner's
testimony at his hearing for aggravation or mitigation of
sentence:
           "Q.   * * *   Prior to your arrest and residence
              here in jail, how did you support yourself?
              A. Playing pool and a little hustle here and
              there.


               "Q.      And anything else?           A. Oh, yeah.
              "Q. What? A. I don't really think that is any
              of your business.


              "Q. You indicated to your counsel that you were
              sorry for what you did. Now, this is the second
              time that you have appeared before this Court
              testifying about this incident. Would it be more
              correct to say that you were sorry you got caught?
              A. Yeah."
              No abuse of discretion appears from the record.              The
District Court had sufficient evidence to conclude the sentence
was not cruel and unusual.
              Issue 4.              We find no merit to this assignment of error.
Petitioner merely makes a bald assertion of error in that
the Sentence Review Board failed to state the reasons why the
sentence remained the same as originally imposed.                   Petitioner
neither plead nor proved facts supporting a condition warrant-
ing relief under the post-conviction relief statutes.
              Finding no reversible error, we affirm the judgment of
the District Court.                                                        r

                                                           ustice
We concur:                                       I




--------------4------------------


Justices


Hon. L. /c. Gulbrandson, sitting
with i e Court.
     &
Mr. Justice Daniel J. Shea dissenting:


           It was improper for the District Court to make the factual
determination during sentencing that the defendant did not tell
the truth when he testified at another trial.    Accordingly, I
would reverse the order of the District Court and order defendant
be resentenced without regard to whether a trial judge determined
that defendant comitted perjury.
           The majority entirely misconceives the nature of the
problem presented and the standards of review to be applied to
the District Court proceedings.    The issue is not a factual one
of determining whether there is substantial evidence in the
record to ultimately support the District Court's finding that
another District Court had sufficient evidence before it to justi-
fy sentencing defendant to the maximum of 40 years in prison for
robbery.    Due to the nature of the offense and defendant's pre-
vious criminal background, there is no doubt defendant was a well
qualified candidate for a lengthy stay in prison.    However, that
is not the issue.    Rather, the issue is strictly a legal one--
whether a District Court can add 15 years to a defendant's sen-
tence because it believes the defendant committed perjury, or in
the softer terminology some courts prefer to use, the defendant
was not candid in his testimony.    Neither the reviewing District
Court nor this Court came to grips with this issue.
        I believe we are bound by the unequivocal testimony of
the sentencing judge in determining whether the sentence was
improper.    At the post-conviction hearing he testified:
        " a . But you did then in this particular case
        put heavy emphasis in the sentencing on the
        fact that you felt that the defendant was not
        candid in the testimony at the Melody Boykin
        trial? A. About 15 years worth, I think."
        (Emphasis added. )
The sentencing judge also explained what he meant by defendant's
lack of candor:
         "He wasn't candid to the Court in that he
         didn't tell the truth. I don't know if YOU
         would define it as perjury or I would ha$e
         done it as perjury.-   here were things about
         what transpired with this event that just
         were not explained by him that were incredible
         to me." (Emphasis added.)
         Clearly, this is an unequivocal admission from the sen-
tencing judge that he added 15 years to defendant's sentence
solely because "he didn't tell the truth" at the Melody Boykin
trial.
         The majority gave no factual background of the circum-
stances surrounding the Melody Boykin trial.     Defendant and four
others, including Melody Boykin, were arrested for robbery and
aggravated assault.    The victim was lured into an alley, then
was rolled and severely beaten.   Melody Boykin was apparently
defendant's girlfriend.    Three of these people plead guilty to
robbery and the aggravated assault charges were dismissed without
prejudice.   It was understood that they would testify against
Melody Boykin who plead innocent, and they did.    Defendant also
plead guilty and the aggravated assault charge was dismissed
without prejudice.    Defendant also testified at the trial, but
Melody Boykin was acquitted, much to the disappointment of the
District Court judge who presided over the trial and who was
later to sentence defendant.   The trial court obviously thought

defendant did not tell the truth during the Melody Boykin trial
and thereby helped gain her acquittal.   For this testimony the
trial court added 15 years onto defendant's sentence.     This is
an intolerable abuse of sentencing discretion.
         The majority erroneously relied on the findings made by
the trial court at the conclusion of the post-conviction pro-
ceeding, quoting in full from finding number nine.    However,
these findings were not made on the basis of the sentencing
court's testimony at the post-conviction hearing.   Rather, they
were based entirely on the record of the sentencing hearing.
Surely this Court is in a better position to review the sentenc-
ing record.   I say better position because it is extremely un-
realistic to assume that one District Court will fairly and
impartially review the decisions of another District Court judge.
Human nature simply does not work that way.
        In Worden v. Alexander, (1939), 108 Mont. 208, 90 P.2d
160, a trial judge who did not preside over the trial itself
ruled on a motion for a new trial.   As to reviewing the record
of the trial on appeal, this Court stated:
        " * * *where a motion for a new trial is
        heard by a judge who did not try the case,
        such judge * * * was compelled to gain his
        knowledge of the case from the record alone,
        and was therefore in no better position to
        determine the motion than is this court,
        and hence his order does not carry with it
        the presumption usually indulged in favor
        of such order. * * * n  108 Mont. 211-212.
        This Court extended this principle of review to findings
and conclusions where one trial judge enters findings and con-
clusions in a case over which he did not preside.   Phalen v.

Rilley, (1970), 154 Mont. 399, 403-404, 465 P.2d 102.   Under
these cases this Court could just as easily review the record of
the sentencing hearing and come to its own conclusions as to the
propriety of the sentence.
        On the other hand, if the District Court made its findings
and conclusions in part in reliance on the testimony introduced
at the post-conviction hearing, he was clearly in error that the
entire sentence was made for a variety of justifiable reasons.
It is obvious that the District Court totally ignored the testi-
mony of the sentencing judge who admitted he added 15 years to
the sentence because the defendant did not tell the truth at the
Melody Boykin trial.     This fact is not even mentionec? in his
findings.   I do not believe this Court can also in good conscience
ignore that testimony.
        But the majority does ignore the record when it states:
             "The record shows the sentencing judge
        considered many factors in sentencing petitioner.
        The conments of the sentencing judge relied upon
        by petitioner indicate only that the judge be-
        lieved petitioner was not candid with the court
        and took this into consideration while iriposing
        sentence. * * *" (Emphasis added.)
It is simply not a matter of taking defendant's candor into con-
sideration; it is a matter of sentencing him to an additional 15
years because the defendant displayed a lack of candor.     Certainly,
it is logical to assume by the sentencing judge's testimony that,
if he had not considered defendant's testimony at the Melody Boykin
trial, the sentence would have been 25 years in prison rather than
40.

        The apparent reasoning of the majority is that a defendant's
candor may be considered and apparently used to augment a sentence
up to the maximum because candor reflects on one's character and
capacity for reformation.    This reasoning ignores the more funda-
mental constitutional protections to which one is entitled, but
which have now been stripped away.
        Presumably the sentencing judge determined that the de-
fendant either committed perjury during the Boykin trial (although
he admitted in effect it could not be proved), or that the testi-
mony involved was such as    to   adversely reflect on defendant's
capacity for reformation.    In either situation, the District
Court had no right to make this factual determination and punish
defendant without benefit of trial.
        The constitutional hazards of increasing a sentence for

alleged perjury committed during the course of a trial were dis-
cussed at 66 Yale Law Journal 204, 212-213:
             "The perjury rationale for increasing
        sentence may be viewed from two different per-
        spectives. It may be said that the judge is
        awarding the defendant a given punishment for
        the crime of which he has been convicted, and
        then, within the limits of his discretion to
        fix punishment for this offense, is imposing
        an additional sentence because the defendant
        has committed the second crime of perjury. Or
        the court may be said to consider the occurrence
        of perjury as a culpable act bearing upon the
        character of the accused; accordingly, the de-
        fendant is given a longer sentence for the crime
        of which he stands convicted because his per-
        jurious conduct increases the difficulty of
        reformation. Both of these justifications seem
        unsound.
             "Penalizing the defendant for the substan-
        tive crime of perjury by increasing the sentence
        for another offense contradicts basis tenets of
        criminal law. Since perjury is properly pun-
        ishable in a separate criminal proceeding, a
        summary adjudication by the court of the defend-
        ant's guilt is an inadequate substitute for the
        constitutional safeguards inherent in a new in-
        dictment and jury trial. Moreover, even though
        the defendant's conviction must be taken as a
        repudiation of his testimony, the judgment in
        the initial case would undoubtedly be inadmis-
        sible evidence in a subsequent perjury proceeding.
        In light of this doctrine, the practice of con-
        clusively presuming the commission of perjury
        from the fact of conviction is particularly
        suspect.
        In addition to a charge of perjury, the District Court,
of course, would have the choice of proceeding against a defend
ant for criminal contempt.   But even in such situations the
defendant would have his procedure protections.   As stated in
66 Yale Law Journal 204, 213-214:
            "A defendant is not always entitled to a
       separate trial on the issue of perjury; lying
       under oath in a judicial proceeding may at times
       be punishable as criminal contempt. Under rule
       42(a) of the Federal Rules of Criminal Proce-
       dure, criminal contempt may be punished summarily
       if the judge certifies that the conduct consti-
       tuting the contempt was committed in the presence
       of the court. However, the Supreme Court has
       held that perjury standing alone does not 'ob-
       struct the administration of justice' and hence
       does not by itself constitute criminal contempt
       under the applicable federal statute. To be
       punishable, the perjury must be such that it
       blocks the performance of judicial duty. Al-
       though the application of this doctrine has
        evoked considerable confusion, it is ques-
        tionable whether the requisite obstruction of
        justice could be said to occur when the de-
        fendant has been convicted in spite of his
        perjured testimony. In addition, cases have
        indicated that the bona fide belief of a pre-
        siding judge that a witness has committed per-
        jury does not by itself justify summary pun-
        ishment of the contemnor without due notice
        and hearing."
        However, when a sentencing court punishes the defendant
by an increased sentence as though he had committed perjury, he
deprives the defendant of the procedural protections that he would
have had in a criminal contempt proceeding.   In 66 Yale Law Jour-
nal 204, 214, the legal consequences are described:
            "When a judge increases the sentence
       awarded for the charged crime as a penalty
       for perjury not summarily punishable as con-
       tempt, he utilizes his discretion to accom-
       plish a result he could not have effected
       directly. The rigid requirements which must
       be met for perjury to qualify as criminal
       contempt reflect the policy that the contempt
       power should be strictly applied, since the
       contemnor is sentenced without the normal
       safeguards of procedural due process. Such
       a policy is jeopardized when a judge increases
       sentence for another crime to discipline a de-
       fendant whose perjured testimony, though not
       qualifying as contempt, has been felt to of-
       fend the dignity of the court.
            "Assuming that the perjury of the accused
       would be subject to punishment as criminal
       contempt, the court that awards a more severe
       sentence on the basis of the defendant's com-
       mission of perjury may be said to substitute
       one form of summary punishment for another
       concededly within its power. At first glance,
       such a practice does not seem objectionable.
       However, it should be noted that a sentence
       within the legal limits provided for the proven
       crime is not usually subject to appellant re-
       view. Accordingly, a defendant whose sentence
       has been increased as a penalty for perjury
       felt to constitute contempt is denied the right
       of appeal which he would have enjoyed if the
       court had followed the standard procedure for
       summary punishment of contempt. Such a depri-
       vation is particularly significant in view of
       the frequent misapplication by trial courts of
       the standards for punishing perjury as criminal
       contempt."
        See also, Scott v. United States, (D.C. ~ i r .1969), 419
F.2d 264, where the problems involved in considering the candor
of a defendant, either as perjury or as criminal contempt, are
discussed in detail.   Scott unequivocally condemns this practice.
        Assuming moreover that a court sentences a defendant to
additional time in prison either because it believes the defendant
has committed perjury at his own trial, or, as in this case, at
another's trial, is it really an ironclad   indicia of the defend-
ant's capacity for reformation or repentance?   This point has
also been discussed in 66 Yale Law Journal 204, 216-217, where
the author states:
            "The prior criminal conduct of a defendant
       awaiting sentence is acknowledged to be a gauge
       of his antisocial propensities, and hence use-
       ful in predicting the sentence necessary to ef-
       fect reformation. Accordingly judges consider,
       in addition to convictions, other purported
       illegal activities of the accused as revealed
       by pre-sentencing reports or other sources of
       information. Viewed from this perspective, per-
       jury apparently committed at trial may be clas-
       sified an illegal activity properly incorporated
       into the defendant's criminal record. And, since
       past criminal behavior is a factor influencing
       length of sentence, a pro tanto increase in the
       punishment accorded a defendant suspected of
       perjury may at first glance seem defensible.
            "However, when a judge awards a defendant
       believed to be a perjurer a more severe sentence
       than he would have given a defendant pleading
       guilty to the same offense but otherwise posses-
       sing an identical criminal record, such a dis-
       crimination is justified only if the perjury in-
       dicates a distinction in the character of the two
       defendants. An individual willing to commit a
       crime would quite likely have no moral scruples
       against subsequently denying under oath its com-
       mission in order to escape punishment. In the
       usual case, a defendant is motivated to admit
       guilt not by an aversion to perjury but by the
       realization that his plea may be effective in
       mitigating sentence. For an accused confronted
       with incriminating evidence, a guilty plea may
       appear to be a far more profitable choice than
       an effective false denial at trial. When perjury
       is avoided for reasons of expediency, not princi-
       ple, it is debatable whether the defendant plead-
       ing guilty is a better prospect for reformation
         than one who perjures himself at trial in an
         unsuccessful effort to obtain acquittal. On
         the other hand, the defendant whose sentence
         has been increased on the basis of suspected
         perjury has', in the opinion of the court, ac-
         tually perjured himself; his counterpart who
         pleaded guilty may have entertained the pr-o-
         pensity to commit perjury but did not in fact
         do so. Thus in evaluating the character of
         the two defendants, it may sometimes be rea-
         sonable to give greater weight to the commis-
         sion of perjury than to the mere 2ropensity
         to commit perjury."
         It appears that all the cases which have discussed per-
jury and its effect on a sentence have been situations where the
trial judge, in his infinite wisdom, has determined that the de-
fendant perjured himself during his own trial.    No cases have
involved situations where the judge has made the same determina-
tion at someone else's trial.   Accordingly, the cases cited by
the majority, and in this dissent, have involved alleged perjury
committed during the defendant's trial.    However, I feel the
reasons why the sentencing court should not consider perjury to
augment a sentence are even more compelling in situations where
the judge believes a defendant has committed perjury at another's
trial.   Where a defendant has testified at his own trial and is
convicted the rationale is that the jury's verdict is an implicit
finding that he was not telling the truth.    But that same rea-
soning does not hold forth in a situation where the defendant has
testified at another's trial.
         I suggest another reason why a judge should not consider
perjury as a reason to augment a sentence.    From practical ex-

perience, judges know that rare is the day if testimony is beins
heard all day, the perjury has not been committed, or at least
that a witness has been more than a little careless with the truth.
Like it or not, it is a   fact of life.   And yet judges, when they
believe someone is not telling the truth, do not order a prosecutii~y
attorney to file perjury charges.   It is equally as rare that the

trial judge holds a witness in contempt for not telling the trut?.
The fact is that the trial judge does nothing about this perjury.
I suggest the only reason it is done in criminal cases, after a
defendant is convicted, is the sentencing judge then has the
hammer over the defendant's head--and, at sentencing, the hammer
falls.    Even though he knows perjury could not be proven if a
criminal charge were filed, and perhaps even a criminal contempt
charge would not hold up, he then decides to consider perjury as
a factor in the sentence.     Surely, this is an uneven application
of the law.     But to so apply the law denies to defendant his
constitutional protections as well as other defenses he may
have either to a perjury charge or to a criminal contempt charge.
          Using this kind of leverage against a defendant whom
the sentencing judge believes has committed perjury can only be
attributed to the arrogance of the court system where the trial
court is permitted to play god with the life of a defendant.
Nowhere should this kind of arbitrary conduct be tolerated by
an appellate court.

          The cases cited by the majority indicate in one way or
another that it is permissible for a sentencing court to consi-
der defendant's candor.    The apparent reason is that it reflects
on a defendant's capacity for reformation.    However, almost all
the cases cited are readily distinguishable from the situation
here.    Some do not state how many years, if any, were added be-
cause the trial judge believed the defendant committed perjury,
or, more delicately, was not candid.    In most of the situations
the defendant was sentenced to far less than the maximum.    Ad-
ditionally, in most cases the sentence imposed does not indicate
that the trial court placed undue emphasis on the defendant's
lack of candor.    None of them came close to adding 15 years to a
sentence because of a defendant's lack of candor.
         The first case cited by the majority, United States v.
Lustig, (9th Cir. 1977), 555 F.2d 737, was a situation where the
defendant was convicted of distributing and conspiracy to distri-
bute cocaine.    The maximum penalty was not stated.   ~fterthe
verdict the prosecuting attorney commented that defendant may
have perjured himself testifying in his defense.      Defendant was
given nine years in prison, but there is no indication of how
much time was added, if any, for the defendant's lack of candor.
 he appellate court simply ruled it was permissible for the sen--
tencing court to consider the defendant's candor on the witness
stand at his trial.
          In United States v. Cluchette, (9th Cir. 1972), 465 F.26-
749, the defendant was convicted of passing counterfeit bills.

The maximum sentence was 15 years on each count.      The sentencing
record showed that the sentencing judge believed defendant had
been "less than candid"     in his trial testimony.   Defendant was
sentenced to 18 months on each of two counts, to run concurrently.
The appellate court stated that there was "no evidence the judge
was biased or prejudiced", and that the sentence imposed "fore-
closes any thought that the judge was unfair    * * *."   465 F.2d 754.
          In United States v. Sneath, (8th Cir. 1977), 557 F.2d 145,
the defendant was convicted of interstate transportion of stolen
motor vehicles.    The maximum sentence was not stated.   The pre-
sentencing investigation alleged defendant had lied to the FBI.
The court sentenced defendant to 18 months in prison.     Defendant
contended the trial court relied on this presentence report stati:?;
he had lied to the FBI.     The appellate court stated that he did not
deny the allegations in the report and that they were apparently
not a major factor in his sentence.    The court concluded that
"* * *   A sentencing judge is entitled to consider a wide range
of information regarding defendant's character and background in
fixing sentence.   * * *"   557 F.2d 151.
          In United States v. Levine, (7th Cir. 1967), 372 ~ . 2 d70,
the defendant was convicted of armed robbery and sentenced to the
maximum of 25 years.    Defendant contended on appeal that he re-
ceived the maximum sentence because he took the witness stand.
However, the appellate court stated that although the sentencing

judge may have believed defendant perjured himself, and may have
considered that (it did not know whether he had), the record
shows that the trial court considered many factors, several of
which independently supported the sentence.
           In United States v. Wallace, (6th Cir. 1969), 418 F.2d
876, the defendant was convicted of removing $3.00 in currency
from a letter entrusted to him.     Defendant was convicted in a
nonjury trial, and at sentencing the judge commented that defend-
ant's guilt     was proven to "a mathematical certainty".   418 F.2d
877.   The court also commented it would almost certainly have
granted probation if defendant had come into court and admitted
his guilt.     Instead, the court imprisoned the defendant, the term
not being mentioned in the opinion.    It is not clear what issue
the defendant raised on appeal, but the appellate court did hold
it was proper to consider defendant's testimony at trial in im-

posing sentence.
           In United States v. Nunn, (5th Cir. 1976), 525 F.2d 958,
the defendant was convicted of transporting illegal aliens.
Neither the maximum sentence nor the sentence actually given was
disclosed.    The appellate court stated, without explanation, that
consideration of perjury in sentencing is permissible.
           In United States v. Moore, (4th Cir. 1973), 484 F.2d 1284,
the defendant was convicted of receiving a stolen vehicle.     He
was sentenced to four years in prison.    The maximum sentence was
greater.     In sentencing the judge considered that the defendant
had "testified falsely" at this trial.    The appellate court al-
lowed the four year sentence to stand on the broad ground     "* * *
that a sentencing judge may consider evidence of crimes for

which the defendant has not been convicted.   * * *"   484 F.2d 1287.
The court actually side-stepped the issue, but clearly stated its
preference for the future when it stated:
           " * * * It is better in the usual case for the
           trial judge who suspects perjury to request an
           investigation. Then, if the facts warrant it,
           the United States Attorney may institute prose-
           cution for this separate and distinct crime."
           484 F.2d 1288.
In his dissent, Judge Craven was emphatic in stating that evidence
of perjury should never be considered as a factor in sentencing.
           In United States v. Hendrix, (2nd Cir. 1974), 505 F.2d
1233, the defendant was convicted of possession with intent to
distribute cocaine and marijuana.       The maximum penalty was not
disclosed in the opinion.    He was sentenced to ten years in pri-
son, two years of which were attributable to the judge's belief
that defendant perjured himself.        In affirming the sentence, the
appellate court stated "    * * *   Impressions   * * *   are   * * *   cen-
tral factors to be appraised; under our theory of 'individualized'
sentencing.   * * *"   505 F.2d 1236.

        Clearly, these cases cannot withstand the scrutiny of
closer analysis, and neither should they be the foundation for
law in this state which gives carte blanche to sentencing judges
to sentence for perjury, or the more delicate term of "lack of
candor".
        There are a multitude of policy factors which militate

against allowing a sentencing judge to impose additional punish-
ment because of his belief that the defendant has committed per-
jury, either at his own trial, or at the trial of another.              How-
ever, when it comes down to the core, I believe that Justice
Craven, in his dissent in United States v. Moore, supra, best
stated it:
             "I suggest one more reason why a trial
        judge should never impose additional punish-
        ment because of his belief that a defendant
        lied in his own defense: he may be wrong.
        * * *" 484 F.2d 1288. (Emphasis added.)
