            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 16, 2020
              Plaintiff-Appellee,

v                                                                  No. 347203
                                                                   Ingham Circuit Court
JERRY JOHN SWANTEK,                                                LC No. 15-000419-FC

              Defendant-Appellant.


Before: TUKEL, P.J., and SAWYER and RIORDAN, JJ.

PER CURIAM.

         Defendant, Jerry John Swantek, appeals by right the judgment of sentence entered after
his second jury trial for his convictions of assault with a dangerous weapon (felonious assault),
MCL 750.82(1), and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b(1). After a previous trial in this matter, defendant was convicted of felonious
assault and felony-firearm and was sentenced to serve 24 months of probation for felonious
assault and 24 months in prison for felony-firearm. This Court remanded to the trial court for a
new trial, holding that the trial court abused its discretion by failing to instruct the jury on
defendant’s theory of self-defense.1 Following the second trial, defendant was again convicted
of both offenses and was sentenced to serve six months in the county jail and 18 months of
probation for felonious assault, to be served consecutively to 24 months’ imprisonment for
felony-firearm. Defendant argues that the jail term imposed for felonious assault following
retrial is an improper vindictive sentence. We agree and reverse his sentence and remand for
resentencing.

                                       I. BASIC FACTS




1
 People v Swantek, unpublished per curiam opinion of the Court of Appeals, issued November
30, 2017 (Docket No. 334451), p 6.



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        This case arose out of a road rage incident that ultimately resulted in the defendant firing
six shots at the victim. Defendant claimed that it was done in self-defense. At his sentencing
following retrial, defendant argued that nothing had changed between his first trial and his
second trial other than that defendant had invoked his constitutional rights. Defendant argued
that before trial, and during his incarceration between the two trials, defendant had exhibited
exemplary behavior. The trial court stated that even after reading this Court’s opinion it felt the
self-defense instruction was “specious.” It noted that the offense was serious and that we
“[c]an’t just have people going around shooting at people.” The court noted that defendant had
not simply drawn a gun, but had instead drawn the gun and intentionally fired it multiple times
into someone else’s vehicle, then attempted to hide his vehicle.

                                  II. VINDICTIVE SENTENCE

                                   A. STANDARD OF REVIEW

      An argument that a sentence is vindictive implicates a defendant’s constitutional rights.
See Michigan v Payne, 412 US 47, 50; 93 S Ct 1966; 36 L Ed 2d 736 (1973); People v Brown,
294 Mich App 377, 389; 811 NW2d 531 (2011). This Court reviews constitutional issues de
novo. People v Bosca, 310 Mich App 1, 56; 871 NW2d 307 (2015).

                                           B. ANALYSIS

        Defendant argues that the imposition of jail time for his felonious assault conviction
following his second trial was an improper vindictive sentence imposed in retaliation for
exercising his rights. We agree that the imposition of a jail sentence was presumptively
vindictive and that the presumption of vindictiveness was not overcome. However, this issue is
moot because defendant has already fully served the six-month jail sentence.

        “A sentencing court cannot base its sentence on a defendant’s decision to exercise his
constitutional right to a jury trial.” Brown, 294 Mich App at 389, citing People v Earegood, 383
Mich 82, 85; 173 NW2d 205 (1970). “[V]indictiveness against a defendant for having exercised
his rights to appeal or to attack his conviction collaterally . . . must play no part in the sentence [a
defendant] receives after a new trial.” Payne, 412 US at 50, quoting North Carolina v Pearce,
395 US 711, 725; 89 S Ct 2072; 23 L Ed 2d 656 (1969), overruled in part on other grounds by
Alabama v Smith, 490 US 794; 109 S Ct 2201; 104 L Ed 2d 865 (1989) (quotation marks
omitted; alterations in Payne). “[F]undamental notions of fairness embodied within the concept
of due process absolutely preclude the imposition of sentences based upon such a retaliatory
motivation.” Payne, 412 US at 50 (quotation marks and citations omitted.) Penalizing a person
who has exercised his or her constitutional rights “would be patently unconstitutional.” Pearce,
395 US at 724 (quotation marks and citation omitted).

         When the same judge resentences a defendant and increases the sentence, the increased
sentence is presumptively vindictive. People v Mazzie, 429 Mich 29, 35; 413 NW2d 1 (1987).
A trial court judge cannot overcome the presumption of vindictiveness by referring to a new
piece of information that is minor and has no relevance to a fair or appropriate sentence. Id. at
36. A trial judge may, however, impose a new sentence “in the light of events subsequent to the
first trial that may have thrown new light upon the defendant’s life, health, habits, conduct, and

                                                  -2-
mental and moral propensities.” Pearce, 395 US at 723 (quotation marks and citation omitted).
“[T]he presumption of vindictiveness may be overcome only when the extent of the increase in
the sentence bears a reasonable relationship to the new information.” Mazzie, 429 Mich at 36.

        In this case, the sentence imposed after retrial is presumptively vindictive because the
trial court presided over both trials and imposed an increased sentence after the second trial. See
Mazzie, 429 Mich at 35. Further, the presumption of vindictiveness has not been overcome,
because the trial court identified no new, additional information that would justify an increase in
defendant’s sentence. Rather, in imposing the second sentence, the trial court stated, “There is a
distinction between felonious assault, pulling out the gun, and intentionally pulling out the gun
and firing into somebody’s vehicle multiple times, running away, hiding his vehicle.” The court
added that defendant had tried to cover up his actions by hiding his vehicle. However, these
facts were available to the court when defendant was first sentenced to 24 months’ probation for
felonious assault. Additionally, defendant’s new presentence investigation report (PSIR) did not
indicate any additional charges or crimes defendant may have committed since the first trial; nor
was there any additional information about defendant’s conduct while incarcerated between his
first and second sentencings.

       Defendant’s sentence is reversed, and we remand for resentencing consistent with this
opinion. We do not retain jurisdiction.



                                                            /s/ Jonathan Tukel
                                                            /s/ David H. Sawyer
                                                            /s/ Michael J. Riordan




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