Respondent, a North Carolina prison inmate, had an altercation
with another prisoner, and was charged with the misdemeanor of
assault with a deadly weapon, of which he was convicted in the
State District Court. While respondent's subsequent appeal was
pending in the Superior Court, where he had the right to a trial
de novo, the prosecutor obtained an indictment covering
the same conduct for the felony offense of assault with a deadly
weapon with intent to kill and inflict serious bodily injury, to
which respondent pleaded guilty. Thereafter, respondent applied for
a writ of habeas corpus in Federal District Court, claiming,
inter alia, that the felony indictment deprived him of due
process. The District Court granted the writ, and the Court of
Appeals affirmed.
Held:
1. The indictment on the felony charge contravened the Due
Process Clause of the Fourteenth Amendment, since a person
convicted of a misdemeanor in North Carolina is entitled to pursue
his right under state law to a trial
de novo without
apprehension that the State will retaliate by substituting a more
serious charge for the original one and thus subject him to a
significantly increased potential period of incarceration.
Cf.
North Carolina v. Pearce, 395 U. S. 711. Pp.
417 U. S.
24-29.
2. Since North Carolina, having chosen originally to proceed
against respondent on the misdemeanor charge in the State District
Court, was precluded by the Due Process Clause from even
prosecuting respondent for the more serious charge in the Superior
Court, respondent's guilty plea to the felony charge did not bar
him from raising his constitutional claim in the federal habeas
corpus proceeding.
Tollett v. Henderson, 411 U.
S. 258, distinguished. Pp.
417 U. S.
29-31.
Affirmed.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and DOUGLAS, BRENNAN, WHITE, MARSHALL, and BLACKMUN,
JJ., joined. REHNQUIST, J., filed a dissenting opinion, in Part II
of which POWELL, J., joined,
post, p.
417 U. S.
32.
Page 417 U. S. 22
MR. JUSTICE STEWART delivered the opinion of the Court.
While serving a term of imprisonment in a North Carolina
penitentiary, the respondent Perry became involved in an
altercation with another inmate. A warrant issued, charging Perry
with the misdemeanor of assault with a deadly weapon, N.C.Gen.Stat.
14-33(b)(1) (1969). Under North Carolina law, the District Court
Division of the General Court of Justice has exclusive jurisdiction
for the trial of misdemeanors. N.C.Gen.Stat. § 7A-272. Following a
trial without a jury in the District Court of Northampton County,
Perry was convicted of this misdemeanor and given a six-month
sentence, to be served after completion of the prison term he was
then serving.
Perry then filed a notice of appeal to the Northampton County
Superior Court. Under North Carolina law, a person convicted in the
District Court has a right to a trial
de novo in the
Superior Court. N.C.Gen. Stat §§ 7A-290, 1177.1. The right to trial
de novo is absolute, there being no need for the appellant
to allege error in the original proceeding. When an appeal is
taken, the statutory scheme provides that the slate is wiped clean;
the prior conviction is annulled, and the prosecution and the
defense begin anew in the Superior Court. [
Footnote 1]
Page 417 U. S. 23
After the filing of the notice of appeal, but prior to the
respondent's appearance for trial
de novo in the Superior
Court, the prosecutor obtained an indictment from a grand jury,
charging Perry with the felony of assault with a deadly weapon with
intent to kill and inflict serious bodily injury, N.C.Gen.Stat. §
132(a) (1969). The indictment covered the same conduct for which
Perry had been tried and convicted in the District Court. Perry
entered a plea of guilty to the indictment in the Superior Court,
and was sentenced to a term of five to seven years in the
penitentiary, to be served concurrently with the identical prison
sentence he was then serving. [
Footnote 2]
A number of months later, the respondent filed an application
for a writ of habeas corpus in the United States District Court for
the Eastern District of North Carolina. He claimed that the
indictment on the felony charge in the Superior Court constituted
double jeopardy and also deprived him of due process of law. In an
unreported opinion, the District Court dismissed the petition for
failure to exhaust available state remedies. The United States
Court of Appeals for the Fourth Circuit
Page 417 U. S. 24
reversed, holding that resort to the state courts would be
futile, because the Supreme Court of North Carolina had
consistently rejected the constitutional claims presented by Perry
in his petition. 453 F.2d 856. [
Footnote 3] The case was remanded to the District Court
for further proceedings.
On remand, the District Court granted the writ. It held that the
bringing of the felony charge after the filing of the appeal
violated Perry's rights under the Double Jeopardy Clause of the
Fifth Amendment, made applicable to the States through the
Fourteenth Amendment,
Benton v. Maryland, 395 U.
S. 784. The District Court further held that the
respondent had not, by his guilty plea in the Superior Court,
waived his right to raise his constitutional claims in the federal
habeas corpus proceeding. The Court of Appeals affirmed the
judgment in a brief per curiam opinion. We granted certiorari, 414
U.S. 908, to consider the seemingly important issues presented by
this case.
I
As in the District Court, Perry directs two independent
constitutional attacks upon the conduct of the
Page 417 U. S. 25
State in haling him into court on the felony charge after he
took an appeal from the misdemeanor conviction. First, he contends
that the felony indictment in the Superior Court placed him in
double jeopardy, since he had already been convicted on the lesser
included misdemeanor charge in the District Court. Second, he urges
that the indictment on the felony charge constituted a penalty for
his exercising his statutory right to appeal, and thus contravened
the Due Process Clause of the Fourteenth Amendment. [
Footnote 4] We find it necessary to reach
only the latter claim.
Perry's due process arguments are derived substantially from
North Carolina v. Pearce, 395 U.
S. 711, and its progeny. In
Pearce, the Court
considered the constitutional problems presented when, following a
successful appeal and reconviction, a criminal defendant was
subjected to a greater punishment than that imposed at the first
trial. While we concluded that such a harsher sentence was not
absolutely precluded by either the Double Jeopardy or Due Process
Clause, we emphasized that
"imposition of a penalty upon the defendant for having
successfully pursued a statutory right of appeal or collateral
remedy would be . . . a violation of due process of law."
Id. at
395 U. S. 724.
Because
"vindictiveness against a defendant for having successfully
attacked his first conviction must play no part in the sentence he
receives
Page 417 U. S. 26
after a new trial,"
id. at
395 U. S. 725,
we held that an increased sentence could not be imposed upon
retrial unless the sentencing judge placed certain specified
findings on the record.
In
Colten v. Kentucky, 407 U.
S. 104, the Court was called upon to decide the
applicability of the
Pearce holding to Kentucky's
two-tiered system of criminal adjudication. Kentucky, like North
Carolina, allows a misdemeanor defendant convicted in an inferior
trial court to seek a trial
de novo in a court of general
jurisdiction. [
Footnote 5] The
appellant in Colten claimed that the Constitution prevented the
court of general jurisdiction, after trial
de novo, from
imposing a sentence in excess of that imposed in the court of
original trial. This Court rejected the
Pearce analogy.
Emphasizing that
Pearce was directed at insuring the
absence of "vindictiveness" against a criminal defendant who
attacked his initial conviction on appeal, the Court found such
dangers greatly minimized on the facts presented in
Colten. In contrast to
Pearce, the court that
imposed the increased sentence after retrial in
Colten was
not the one whose original judgment had prompted an appellate
reversal; thus, there was little possibility that an increased
sentence on trial
de novo could have been motivated by
personal vindictiveness on the part of the sentencing judge. Hence,
the Court thought the prophylactic rule of
Pearce
unnecessary in the
de novo trial and sentencing context of
Colten.
The
Pearce decision was again interpreted by this Court
last Term in
Chaffin v. Stynchcombe, 412 U. S.
17, in the setting of Georgia's system under which
sentencing responsibility is entrusted to the jury. Upon retrial
following the reversal of his original conviction, the
Page 417 U. S. 27
defendant in
Chaffin was reconvicted and sentenced to a
greater term than had been imposed by the initial jury.
Concentrating again on the issue of vindictiveness, the Court found
no violation of the
Pearce rule. It was noted that the
second jury was completely unaware of the original sentence, and
thus could hardly have sought to "punish"
Chaffin for his
successful appeal. Moreover, the jury, unlike a judge who had been
reversed on appeal, could hardly have a stake in the prior
conviction or any motivation to discourage criminal defendants from
seeking appellate review. Hence, it was concluded that the danger
of vindictiveness under the circumstances of the case was "
de
minimis,"
id. at
412 U. S. 26,
and did not require adoption of the constitutional rule set out in
Pearce.
The lesson that emerges from
Pearce, Colten, and
Chaffin is that the Due Process Clause is not offended by
all possibilities of increased punishment upon retrial after
appeal, but only by those that pose a realistic likelihood of
"vindictiveness." Unlike the circumstances presented by those
cases, however, in the situation here, the central figure is not
the judge or the jury, but the prosecutor. The question is whether
the opportunities for vindictiveness in this situation are such as
to impel the conclusion that due process of law requires a rule
analogous to that of the
Pearce case. We conclude that the
answer must be in the affirmative.
A prosecutor clearly has a considerable stake in discouraging
convicted misdemeanants from appealing and thus obtaining a trial
de novo in the Superior Court, since such an appeal will
clearly require increased expenditures of prosecutorial resources
before the defendant's conviction becomes final, and may even
result in a formerly convicted defendant's going free. And, if the
prosecutor has the means readily at hand to discourage such
Page 417 U. S. 28
appeals -- by "upping the ante" through a felony indictment
whenever a convicted misdemeanant pursues his statutory appellate
remedy -- the State can insure that only the most hardy defendants
will brave the hazards of a
de novo trial.
There is, of course, no evidence that the prosecutor in this
case acted in bad faith or maliciously in seeking a felony
indictment against Perry. The rationale of our judgment in the
Pearce case, however, was not grounded upon the
proposition that actual retaliatory motivation must inevitably
exist. Rather, we emphasized that,
"since the fear of such vindictiveness may unconstitutionally
deter a defendant's exercise of the right to appeal or collaterally
attack his first conviction, due process also requires that a
defendant be freed of apprehension of such a retaliatory motivation
on the part of the sentencing judge."
395 U.S. at
395 U. S. 725.
We think it clear that the same considerations apply here. A person
convicted of an offense is entitled to pursue his statutory right
to a trial
de novo without apprehension that the State
will retaliate by substituting a more serious charge for the
original one, thus subjecting him to a significantly increased
potential period of incarceration. [
Footnote 6]
Cf. United States v. Jackson,
390 U. S. 570.
Due process of law requires that such a potential for
vindictiveness must not enter into North Carolina's two-tiered
appellate process. We hold, therefore, that it was not
constitutionally permissible for the State to respond
Page 417 U. S. 29
to Perry's invocation of his statutory right to appeal by
bringing a more serious charge against him prior to the trial
de novo. [
Footnote
7]
II
The remaining question is whether, because of his guilty plea to
the felony charge in the Superior Court, Perry is precluded from
raising his constitutional claims in this federal habeas corpus
proceeding. In contending that such is the case, petitioners rely
chiefly on this Court's decision last Term in
Tollett v.
Henderson, 411 U. S. 258.
The precise issue presented in
Tollett was
"whether a state prisoner, pleading guilty with the advice of
counsel, may later obtain release through federal habeas corpus by
proving only that the indictment to which he pleaded was returned
by an unconstitutionally selected grand jury."
Id. at
411 U. S. 260.
The Court answered that question in the negative. Relying primarily
on the guilty plea trilogy of
Brady v. United States,
397 U. S. 742,
McMann v. Richardson, 397 U. S. 759, and
Parker v. North Carolina, 397 U.
S. 790, the Court characterized the guilty plea as "a
break in the chain of events which has preceded it in the criminal
process." 411 U.S. at
411 U. S. 267.
Accordingly, the Court held that, when a criminal defendant enters
a guilty plea,
"he may not thereafter raise independent claims relating to the
deprivation of constitutional
Page 417 U. S. 30
rights that occurred prior to the entry of the guilty plea."
Ibid. Rather, a person complaining of such "antecedent
constitutional violations,"
id. at
411 U. S. 266,
is limited in a federal habeas corpus proceeding to attacks on the
voluntary and intelligent nature of the guilty plea, through proof
that the advice received from counsel was not "within the range of
competence demanded of attorneys in criminal cases."
See
McMann, supra, at
397 U. S.
771.
While petitioners' reliance upon the
Tollett opinion is
understandable, there is a fundamental distinction between this
case and that one. Although the underlying claims presented in
Tollett and the
Brady trilogy were of
constitutional dimensions, none went to the very power of the State
to bring the defendant into court to answer the charge brought
against him. The defendants in
McMann v. Richardson, for
example, could surely have been brought to trial without the use of
the allegedly coerced confessions, and even a tainted indictment of
the sort alleged in
Tollett could have been "cured"
through a new indictment by a properly selected grand jury. In the
case at hand, by contrast, the nature of the underlying
constitutional infirmity is markedly different. Having chosen
originally to proceed on the misdemeanor charge in the District
Court; the State of North Carolina was, under the facts of this
case, simply precluded by the Due Process Clause from calling upon
the respondent to answer to the more serious charge in the Superior
Court. Unlike the defendant in
Tollett, Perry is not
complaining of "antecedent constitutional violations" or of a
"deprivation of constitutional rights that occurred prior to the
entry of the guilty plea." 411 U.S. at
411 U. S. 266,
411 U. S. 267.
Rather, the right that he asserts and that we today accept is the
right not to be haled into court at all upon the felony charge. The
very initiation of the proceedings against
Page 417 U. S. 31
him in the Superior Court thus operated to deny him due process
of law.
Last Term, in
Robinson v. Neil, 409 U.
S. 505, in explaining why the Double Jeopardy Clause is
distinctive, the Court noted that
"its practical result is to prevent a trial from taking place at
all, rather than to prescribe procedural rules that govern the
conduct of a trial."
Id. at
409 U. S. 509.
While our judgment today is not based upon the Double Jeopardy
Clause, we think that the quoted language aptly describes the due
process right upon which our judgment s based. The "practical
result" dictated by the Due Process Clause in this case is that
North Carolina simply could not permissibly require Perry to answer
to the felony charge. That being so, it follows that his guilty
plea did not foreclose him from attacking his conviction in the
Superior Court proceedings through a federal writ of habeas corpus.
[
Footnote 8]
Page 417 U. S. 32
Accordingly, the judgment of the Court of Appeals for the Fourth
Circuit is affirmed.
It is so ordered
[
Footnote 1]
See generally State v. Spencer, 276 N.C. 535,
173 S.E.2d
765;
State v. Sparrow, 276 N.C. 499,
173 S.E.2d
897.
[
Footnote 2]
The respondent's guilty plea was apparently premised on the
expectation that any sentence he received in the Superior Court
would be served concurrently with the sentence he was then serving,
as contrasted with the consecutive sentence imposed in the District
Court. That expectation was fulfilled, but it turned out that the
guilty plea resulted in increasing the respondent's potential term
of incarceration. Under applicable North Carolina law, the five- to
seven-year assault sentence did not commence until the date of the
guilty plea, October 29, 1969. By that time, Perry had already
served some 17 months of the sentence he was serving at the time of
the alleged assault. Thus, the effect of the five- to seven-year
concurrent sentence on the assault charge was to increase his
potential period of confinement by these 17 months, as opposed to
the six-month increase envisaged by the District Court's
consecutive sentence.
[
Footnote 3]
The Court of Appeals further instructed the District Court to
await the ruling of this Court in
Rice v. North Carolina,
434 F.2d 297 (CA4),
cert. granted, 401 U.S. 1008.
Rice involved a challenge to the constitutionality of an
enhanced penalty received after a criminal defendant had sought a
trial
de novo under North Carolina's two-tiered
misdemeanor adjudication system. This Court did not reach the
merits of this issue in
Rice, instead vacating and
remanding to the Court of Appeals for consideration as to whether
the case had become moot.
404 U. S. 244.
Subsequently, in
Colten v. Kentucky, 407 U.
S. 104, we dealt with the merits of this issue, and held
that the imposition of an increased sentence on trial
de
novo did not violate either the Due Process or the Double
Jeopardy Clause. The District Court in the present case had the
benefit of the
Colten decision before issuing its opinion
granting habeas corpus relief.
[
Footnote 4]
This Court has never held that the States are constitutionally
required to establish avenues of appellate review of criminal
convictions. Nonetheless,
"it is now fundamental that, once established, these avenues
must be kept free of unreasoned distinctions that can only impede
open and equal access to the courts."
Rinaldi v. Yeager, 384 U. S. 305,
384 U. S. 310.
See also Griffin v. Illinois, 351 U. S.
12;
Douglas v. California, 372 U.
S. 353;
Lane v. Brown, 372 U.
S. 477;
Draper v. Washington, 372 U.
S. 487;
North Carolina v. Pearce, 395 U.
S. 711,
395 U. S.
724-725;
Chaffin v. Stynchcombe, 412 U. S.
17,
412 U. S. 24 n.
11.
[
Footnote 5]
For a more exhaustive list of States employing similar
two-tiered procedures,
see Colten, supra, at
407 U. S. 112
n. 4.
[
Footnote 6]
Moreover, even putting to one side the potentiality of increased
incarceration, conviction of a "felony" often entails more serious
collateral consequences than those incurred through a misdemeanor
conviction.
See generally Special Project, The Collateral
Consequences of a Criminal Conviction, 23 Vand.L.Rev. 929, 955-960;
Note, Civil Disabilities of Felons, 53 Va.L.Rev. 403, 406-408.
Cf. O'Brien v. Skinner, 414 U. S. 524
(involving New York law under which convicted misdemeanants retain
the right to vote).
[
Footnote 7]
This would clearly be a different case if the State had shown
that it was impossible to proceed on the more serious charge at the
outset, as in
Diaz v. United States, 223 U.
S. 442. In that case, the defendant was originally tried
and convicted for assault and battery. Subsequent to the original
trial, the assault victim died, and the defendant was then tried
and convicted for homicide. Obviously, it would not have been
possible for the authorities in
Diaz to have originally
proceeded against the defendant on the more serious charge, since
the crime of homicide was not complete until after the victim's
death.
[
Footnote 8]
Contrary to the dissenting opinion, our decision today does not
"assure that no penalty whatever will be imposed" on respondent.
Post at
417 U. S. 39.
While the Due Process Clause of the Fourteenth Amendment bars trial
of Perry on the felony assault charges in the Superior Court, North
Carolina is wholly free to conduct a trial
de novo in the
Superior Court on the original misdemeanor assault charge. Indeed,
this is precisely the course that Perry has invited, by filing an
appeal from the original judgment of the District Court.
The dissenting opinion also seems to misconceive the nature of
the due process right at stake here. If this were a case involving
simply an increased sentence violative of the
Pearce rule,
a remand for resentencing would be in order. Our holding today,
however, is not that Perry was denied due process by the length of
the sentence imposed by the Superior Court, but rather by the very
institution of the felony indictment against him. While we reach
this conclusion in partial reliance on the analogy of
Pearce and its progeny, the due process violation here is
not the same as was involved in those cases, and cannot be remedied
solely through a resentencing procedure in the Superior Court.
Cf. n 6,
supra.
MR. JUSTICE REHNQUIST, dissenting.
I would find it more difficult than the Court apparently does in
Part I of its opinion to conclude that the very bringing of more
serious charges against respondent following his request for a
trial
de novo violated due process as defined in
North
Carolina v. Pearce, 395 U. S. 711
(1969). Still more importantly, I believe the Court's conclusion
that respondent may assert the Court's newfound
Pearce
claim in this federal habeas action, despite his plea of guilty to
the charges brought after his invocation of his statutory right to
a trial
de novo, marks an unwarranted departure from the
principles we have recently enunciated in
Tollett v.
Henderson, 411 U. S. 258
(1973), and the
Brady trilogy,
Brady v. United
States, 397 U. S. 742
(1970);
McMann v. Richardson, 397 U.
S. 759 (1970); and
Parker v. North Carolina,
397 U. S. 790
(1970).
I
As the Court notes, in addition to his claim based on
Pearce, respondent contends that his felony indictment in
the Superior Court violated his rights under the Double Jeopardy
Clause of the Fifth Amendment, made applicable to the States
through the Fourteenth Amendment,
Benton v. Maryland,
395 U. S. 784
(1969). Presumably because we have earlier held that "the jeopardy
incident to" a trial does "not extend to an offense beyond [the
trial court's] jurisdiction,"
Diaz v. United States,
223 U. S. 442,
223 U. S. 449
(1912), the Court rests its decision instead on the Fourteenth
Amendment due process doctrine of
Pearce. In so doing, I
think the Court too readily equates the role of the prosecutor, who
is a natural adversary of the defendant and who, we observed in
Page 417 U. S. 33
Chaffin v. Stynchcombe, 412 U. S.
17,
412 U. S. 27 n.
13 (1973), "often request[s] more than [he] can reasonably expect
to get," with that of the sentencing judge in
Pearce. I
also think the Court passes too lightly over the reasoning of
Colten v. Kentucky, 407 U. S. 104
(1972), in which we held that imposition of the prophylactic rule
of
Pearce was not necessary in Kentucky's two-tier system
for
de novo appeals from justice court convictions, even
though the judge at retrial might impose a more severe sentence
than had been imposed by the justice court after the original
trial.
The concurring opinion in
Pearce, 395 U.
S. 711,
395 U. S. 726,
took the position that the imposition of a penalty after retrial
which exceeded the penalty imposed after the first trial violated
the guarantee against double jeopardy. But the opinion of the
Court, relying on cases such as
United States v. Ball,
163 U. S. 662
(1896), and
Stroud v. United States, 251 U. S.
15 (1919), specifically rejected such an approach to the
case. The Court went on to hold
"that neither the double jeopardy provision nor the Equal
Protection Clause imposes an absolute bar to a more severe sentence
upon reconviction."
395 U.S. at
395 U. S. 723.
The Court concluded by holding that due process
"requires that vindictiveness against a defendant for having
successfully attacked his first conviction must play no part in the
sentence he receives after a new trial. And since the fear of such
vindictiveness may unconstitutionally deter a defendant's exercise
of the right to appeal or collaterally attack his first conviction,
due process also requires that a defendant be freed of apprehension
of such a retaliatory motivation on the part of the sentencing
judge."
Id. at
395 U. S. 725.
To make certain that those requirements of due process were met,
the Court laid down the rule that
"whenever a judge imposes a more severe sentence upon a
defendant after
Page 417 U. S. 34
a new trial, the reasons for his doing so must affirmatively
appear."
Id. at
395 U. S. 726.
Thus, the avowed purpose of the remedy fashioned in
Pearce
was to prevent judicial vindictiveness from resulting in longer
sentences after a retrial following successful appeal.
Since in theory, if not in practice, the second sentence in the
Pearce situation might be expected to be the same as the
first unless influenced by vindictiveness or by intervening conduct
of the defendant, in theory, at least, the remedy mandated there
reached no further than the identified wrong. The same cannot be
said here. For while indictment on more serious charges after a
successful appeal would present a problem closely analogous to that
in
Pearce in this respect, the bringing of more serious
charges after a defendant's exercise of his absolute right to a
trial
de novo in North Carolina's two-tier system does
not. The prosecutor here elected to proceed initially in the State
District Court, where felony charges could not be prosecuted, for
reasons which may well have been unrelated to whether he believed
respondent was guilty of and could be convicted of the felony with
which he was later charged. Both prosecutor and defendant stand to
benefit from an initial prosecution in the District Court, the
prosecutor at least from its less burdensome procedures and the
defendant from the opportunity for an initial acquittal and the
limited penalties. With the countervailing reasons for proceeding
only on the misdemeanor charge in the District Court no longer
applicable once the defendant has invoked his statutory right to a
trial
de novo, a prosecutor need not be vindictive to seek
to indict and convict a defendant of the more serious of the two
crimes of which he believes him guilty. Thus, even if one accepts
the Court's equation of prosecutorial vindictiveness with judicial
vindictiveness, here, unlike
Pearce, the Court's remedy
reaches far beyond the wrong it identifies.
Page 417 U. S. 35
Indeed, it is not a little puzzling that the Court's remedy is
the same that would follow upon a conclusion that the bringing of
the new charges violated respondent's rights under the Double
Jeopardy Clause. And the Court's conclusion that "[t]he very
initiation of the proceedings against [respondent] in the Superior
Court thus operated to deny him due process of law" surely sounds
in the language of double jeopardy, however it may be dressed in
due process garb.
II
If the Court is correct in stating the consequences of upholding
respondent's constitutional claim here, and indeed the State lacked
the very power to bring him to trial, I believe this case is
governed by cases culminating in
Tollett v. Henderson,
411 U. S. 258
(1973). In that case, the State no doubt lacked "power" to bring
Henderson to trial without a valid grand jury indictment; yet that
constitutional disability was held by us to be merged in the guilty
plea. I do not see why a constitutional claim the consequences of
which make it the identical twin of double jeopardy may not, like
double jeopardy, be waived by the person for whose benefit it is
accorded.
Kepner v. United States, 195 U.
S. 100,
195 U. S. 131
(1904);
Harris v. United States, 237 F.2d 274, 277 (CA8
1956);
Kistner v. United States, 332 F.2d 978, 980 (CA8
1964).
In
Tollett v. Henderson, supra, we held that
"just as the guilty pleas in the
Brady trilogy were
found to foreclose direct inquiry into the merits of claimed
antecedent constitutional violations there, . . . respondent's
guilty plea here alike forecloses independent inquiry into the
claim of discrimination in the selection of the grand jury."
411 U.S. at
411 U. S. 266.
Surely the due process violation found by the Court today is no
less "antecedent" than the constitutional violations claimed to
make the
Page 417 U. S. 36
grand jury indictment invalid in
Tollett v. Henderson,
the confession inadmissible in
McMann, or the exercise of
the right to a jury trial impermissibly burdened in
Brady and
Parker. As the Court notes, we reaffirmed in
Tollett v.
Henderson the principle of the
Brady trilogy that "a
guilty plea represents a break in the chain of events which has
preceded it in the criminal process." 411 U.S. at
411 U. S. 267.
We went on to say there:
"When a criminal defendant has solemnly admitted in open court
that he is, in fact, guilty of the offense with which he is
charged, he may not thereafter raise independent claims relating to
the deprivation of constitutional rights that occurred prior to the
entry of the guilty plea. He may only attack the voluntary and
intelligent character of the guilty plea by showing that the advice
he received from counsel was not within the standards set forth in
McMann."
Ibid. The assertion by the Court that this reasoning is
somehow inapplicable here because the claim goes "to the very power
of the State to bring the defendant into court to answer the charge
brought against him" is little other than a conclusion. Any
difference between the issue resolved the other way in
Tollett
v. Henderson and the issue before us today is, at most,
semantic. But the Court's "test" not only fails to distinguish
Henderson; it also fails to provide any reasoned basis on
which to approach such questions as whether a speedy trial claim is
merged in a guilty plea. I believe the Court's departure today from
the principles of
Henderson and the cases preceding it
must be recognized as a potentially major breach in the wall of
certainty surrounding guilty pleas for which we have found
constitutional sanction in those cases.
There is no indication in this record that respondent's guilty
plea was the result of an agreement with the prosecutor.
Page 417 U. S. 37
But the Court's basis for distinguishing the
Henderson
and
Brady cases seems so insubstantial as to permit the
doctrine of this case to apply to guilty pleas which have been
obtained as a result of "plea bargains." In that event, it will be
not merely the State which stands to lose, but the accused
defendant in the position of the respondent, as well. Since the
great majority of criminal cases are resolved by plea bargaining,
defendants as a class have at least as great an interest in the
finality of voluntary guilty pleas as do prosecutors. If that
finality may be swept aside with the ease exhibited by the Court's
approach today, prosecutors will have a reduced incentive to
bargain, to the detriment of the many defendants for whom plea
bargaining offers the only hope for ameliorating the consequences
to them of a serious criminal charge.
III
But if, as I believe, a proper analysis of respondent's
constitutional claim produces, at most, a violation of the
standards laid down in
North Carolina v. Pearce, supra, I
agree with the Court, though not for the reasons it gives, that
respondent's claim was not merged in his guilty plea. Imposition of
sentence in violation of
Pearce is not an "antecedent
constitutional violation," since sentence is customarily imposed
after a plea of guilty, and is a separate legal event from the
determination by the Court that the defendant is, in fact, guilty
of the offense with which he is charged.
If respondent's claim is properly analyzed in terms of
Pearce, I would think that a result quite different from
that mandated in the Court's opinion would obtain.
Pearce
and the decisions following it have made it clear that the wrong
lies in the increased sentence, not in the judgment of conviction,
and that the remedy for a
Pearce defect is a remand for
sentencing consistent with due
Page 417 U. S. 38
process.
North Carolina v. Rice, 404 U.
S. 244,
404 U. S.
247-248 (1971). In
Rice, we concluded that the
Court of Appeals had erred in ruling that
Pearce
authorized the expunging of Rice's conviction after his trial
de novo in North Carolina:
"It could not be clearer . . . that
Pearce does not
invalidate the conviction that resulted from Rice's second trial. .
. .
Pearce, in short, requires only resentencing; the
conviction is not
ipso facto set aside and a new trial
required. Even if the higher sentence imposed after Rice's trial
de novo was vulnerable under
Pearce, Rice was
entitled neither to have his conviction erased nor to avoid the
collateral consequences flowing from that conviction and a proper
sentence."
Ibid. Since Rice had completely served his sentence,
rather than reaching the merits of Rice's
Pearce claim, we
remanded for a determination whether any collateral consequences
flowed from his service of the longer sentence imposed after
retrial, or whether the case was moot.
Here, while respondent faced the prospect of a more severe
sentence at the conclusion of his felony trial in the Superior
Court of North Carolina, it was by no means self-evident that this
would be the result. The maximum sentence which he could receive on
the misdemeanor count was one and one-half years, but nothing in
the record indicates that the Superior Court judge might not impose
a lesser penalty than that, or even grant probation. Nor is there
any indication in the habeas record, which contains only a fragment
of the state court proceedings, that the Superior Court judge might
not at the conclusion of the trial and after a verdict of guilty
have before him for sentencing purposes information which would
support an augmented sentence under
Pearce. In fact, the
habeas court found that the sentence actually
Page 417 U. S. 39
imposed was more severe than that which could have been imposed
under the misdemeanor charge. But the remedy for that violation
should be a direction to the state court to resentence in
accordance with
Pearce, rather than an order completely
annulling the conviction. Respondent was originally convicted of
assaulting a fellow inmate with a deadly weapon, and later pleaded
guilty to a charge of assaulting the inmate with a deadly weapon
with intent to kill him. But in spite of both a verdict of guilty
on one charge and a plea of guilty to the other, the Court's
decision may well, as a practical matter, assure that no penalty
whatever will be imposed on him.
MR. JUSTICE POWELL joins in Part II of this opinion.