Prior to trial on a federal indictment charging petitioner with
mail fraud, he was indicted, tried, and convicted of the unrelated
federal offense of knowingly and willfully making false statements
in a passport application. At the sentencing hearing, the trial
judge stated that, pursuant to his usual practice, he would not
consider the pending mail fraud charge in passing sentence but
would consider only prior convictions. Petitioner was then
sentenced to two years' imprisonment, all but six months of which
was suspended in favor of three years of probation. Thereafter, the
mail fraud indictment was dismissed, and an information charging
petitioner with possession of counterfeit certificates of deposit
was substituted. Petitioner pleaded
nolo contendere to
that charge before a different District Court Judge, and was
sentenced to two years' probation. Subsequently, the Court of
Appeals reversed petitioner's conviction for the passport offense,
and petitioner was retried on the charge before the same trial
judge and was again convicted. In imposing a sentence of two years'
imprisonment, none of which was suspended, the trial judge
explained that he imposed the greater sentence because of
petitioner's intervening conviction for possession of counterfeit
certificates of deposit. The judge rejected petitioner's argument
that, because the conduct underlying the conviction for possession
of counterfeit certificates of deposit occurred prior to
petitioner's original sentencing on the passport conviction, he
could not, under
North Carolina v. Pearce, 395 U.
S. 711, receive a sentence greater than that received
for the original conviction. The Court of Appeals affirmed.
Held: After retrial and conviction following a
defendant's successful appeal, a sentencing authority may justify
an increased sentence by affirmatively identifying relevant conduct
or events that occurred subsequent to the original sentencing
proceedings. Pp.
468 U. S.
563-565,
468 U. S.
569-571,
468 U. S.
571-572.
(a) In
Pearce, supra, the Court held that the Due
Process Clause of the Fourteenth Amendment prevented increased
sentences motivated by vindictive retaliation by the judge after
reconviction following a successful appeal, and that, whenever a
judge imposes a more severe sentence upon a defendant after a new
trial, the reasons for his doing so must affirmatively appear.
Thus,
Pearce establishes a rebuttable
Page 468 U. S. 560
presumption of vindictiveness, not an absolute prohibition
against enhancement of sentence. Pp.
468 U. S.
563-565.
(b) Here, the fact that petitioner in effect received a greater
sentence of confinement following retrial than he had originally
received was sufficient to engage the presumption of
Pearce. However, the trial judge carefully explained his
reasons for imposing the greater sentence, and his consideration of
the intervening conviction was manifestly legitimate, amply
rebutting any presumption of vindictiveness. Pp.
468 U. S.
569-571.
700 F.2d 663, affirmed.
BURGER, C.J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II-A, III-A,
III-C, and IV, in which WHITE, BLACKMUN, POWELL, REHNQUIST, and
O'CONNOR, JJ., joined, and an opinion with respect to Parts II-B
and III-B, in which WHITE, REHNQUIST, and O'CONNOR, JJ., joined.
POWELL, J., filed an opinion concurring in part and concurring in
the judgment, in which BLACKMUN, J., joined,
post, p.
468 U. S. 573.
BRENNAN, J., filed an opinion concurring in the judgment, in which
MARSHALL, J., joined,
post, p.
468 U.S. 574. STEVENS, J., filed an
opinion concurring in the judgment,
post, p.
468 U.S. 574.
CHIEF JUSTICE BURGER announced the judgment of the Court and
delivered the opinion of the Court with respect to Parts I, II-A,
III-A, III-C, and IV, and an opinion with respect to Parts II-B and
III-B, in which JUSTICE WHITE, JUSTICE REHNQUIST, and JUSTICE
O'CONNOR joined.
We granted certiorari to decide whether the Due Process Clause
of the Fifth Amendment was violated when a federal defendant was
given a greater sentence after retrial following a successful
appeal than he had been given after his original conviction because
the sentencing court considered an intervening criminal conviction
for acts committed prior to the original sentencing.
Page 468 U. S. 561
I
Petitioner, an attorney, was indicted on four counts of mail
fraud in violation of 18 U.S.C. § 1341. Prior to trial on these
charges, he was indicted, tried, and convicted of the unrelated
offense of knowingly and willfully making false statements in a
passport application, in violation of 18 U.S.C. § 1542. At the
sentencing hearing following petitioner's first conviction, the
Government advised the court that charges were then pending against
petitioner for mail fraud, and that petitioner previously had been
convicted for failure to file a tax return. Petitioner's counsel
replied that it would be inappropriate for the court to consider
the pending mail fraud charges in its sentencing on the passport
conviction because petitioner had yet to respond to the
charges.
The District Court Judge informed the parties that he would not
consider the pending mail fraud charge in sentencing petitioner.
The judge explained that he always considered prior convictions
when sentencing a defendant, but that he did not consider pending
charges:
"[I]f judges at the time of considering prior convictions also
consider pending cases . . . then if that pending case resulted in
a conviction, one of the sentences would inevitably have been a
pyramided sentence."
App. 26. Following this colloquy, the judge sentenced petitioner
on the passport offense to two years of imprisonment, all but six
months of which he suspended in favor of three years of
probation.
Thereafter, pursuant to negotiations between petitioner and the
Government, the Government dismissed the mail fraud indictment and
substituted a one-count information charging petitioner with
possession of counterfeit certificates of deposit, in violation of
18 U.S.C. § 480. Petitioner pleaded
nolo contendere to
this charge before another Federal District Court Judge in the
Southern District of Florida, and was sentenced to two years'
probation. App. to Brief for Petitioner 3-15.
Page 468 U. S. 562
The Court of Appeals for what was then the Fifth Circuit
subsequently reversed petitioner's first conviction on grounds not
material here, and remanded for a new trial. 641 F.2d 326 (1981).
Petitioner was retried on that charge, and was again convicted. The
presiding judge at the second trial was the same judge who had
presided at petitioner's first trial on the passport offense and
sentenced petitioner to the 2-year partially suspended sentence,
with probation. This time, the judge sentenced petitioner to two
years of imprisonment, none of which was suspended. The judge
explained to petitioner and counsel for the Government that he was
imposing a greater sentence because of petitioner's intervening
conviction for possession of counterfeit certificates of
deposit:
"[W]hen I imposed sentence the first time, the only conviction
on [petitioner's] record in this Court's eyes, this Court's
consideration, was failure to file income tax returns, nothing
else. I did not consider then, and I don't in other cases either,
pending matters, because that would result in a pyramiding of
sentences. At this time, he comes before me with two convictions.
Last time, he came before me with one conviction."
App. to Pet. for Cert. A-42. The judge rejected an argument by
petitioner's counsel that, because the conduct underlying the
conviction for possession of counterfeit certificates of deposit
occurred prior to petitioner's original sentencing on the passport
conviction, petitioner could not, under
North Carolina v.
Pearce, 395 U. S. 711
(1969), receive a sentence greater than that received for the
original conviction.
The Court of Appeals for the Eleventh Circuit affirmed, holding
that petitioner's increased sentence
"was based on objective, factual new evidence not previously
considered, that it was neither motivated by judicial
vindictiveness nor reasonably perceivable as having been so
motivated. . . ."
700 F.2d 663, 670 (1983). It held that the District Court
Page 468 U. S. 563
"followed precisely the procedural steps of [
North Carolina
v.] Pearce, affirmatively stating on the record his reason for
enhancing the sentence, basing that reason on objective information
concerning identifiable conduct of the defendant, and making the
factual data on which his action was based part of the record so
that its constitutional legitimacy [could] be fully reviewed on
appeal."
Id. at 667.
The Court of Appeals rejected petitioner's argument that his
sentence could not be increased after retrial based on the
intervening counterfeiting conviction because the counterfeiting
offense itself was not "conduct on the part of the defendant
occurring after the time of the original sentencing,"
see
Pearce, supra, at
395 U. S. 726.
The Court of Appeals read
Pearce to be concerned only with
"vindictive sentencing, not defendant misbehavior between trials."
The Court of Appeals noted that there was "no evidence whatsoever"
that petitioner's sentence was increased out of vindictiveness. The
court expressly declined to follow the contrary holdings of the
Courts of Appeals for the Second and Ninth Circuits that an
enhanced sentence must be based upon conduct of the defendant
occurring after the original sentencing.
See United States v.
Markus, 603 F.2d 409 (CA2 1979);
United States v.
Williams, 651 F.2d 644 (CA9 1981).
We granted certiorari, 464 U.S. 932 (1983), to resolve the
conflict among the Circuits as to the meaning of this Court's
holding in
Pearce.
II
A
It is now well established that a judge or other sentencing
authority is to be accorded very wide discretion in determining an
appropriate sentence. The sentencing court or jury must be
permitted to consider any and all information that reasonably might
bear on the proper sentence for the particular defendant, given the
crime committed. Justice Black
Page 468 U. S. 564
made this point when, writing for the Court in
Williams v.
New York, 337 U. S. 241,
337 U. S. 247
(1949), he observed that
"[h]ighly relevant -- if not essential -- to [the] selection of
an appropriate sentence is the possession of the fullest
information possible concerning the defendant's life and
characteristics. "
Allowing consideration of such a breadth of information ensures
that the punishment will suit not merely the offense, but the
individual defendant.
Ibid.
In
Pearce, supra, however, the Court recognized at
least one limitation on the discretion of the sentencing authority
where a sentence is increased after reconviction following a
successful appeal. Two separate cases were before the Court in
Pearce. In both cases, the defendants successfully
appealed their original convictions, and, on retrial, received
greater sentences than they had received originally. The Court held
that neither the Double Jeopardy Clause nor the Equal Protection
Clause barred imposition of the greater sentences after the
reconvictions of the defendants. However, it held that the Due
Process Clause of the Fourteenth Amendment prevented increased
sentences actually motivated by vindictive retaliation by the
judge:
"Due process of law, then, 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."
395 U.S. at
395 U. S. 725.
Because fear of such vindictiveness might chill a defendant's
decision to appeal or to attack his conviction collaterally, the
Court went on to say that
"due process also requires that a defendant be freed of
apprehension of such a retaliatory motivation on the part of the
sentencing judge."
Ibid. (footnote omitted).
To prevent actual vindictiveness from entering into a decision
and allay any fear on the part of a defendant that an increased
sentence is in fact the product of vindictiveness, the Court
fashioned what in essence is a "prophylactic rule,"
see Colten
v. Kentucky, 407 U. S. 104,
407 U. S. 116
(1972), that
"whenever
Page 468 U. S. 565
a judge imposes a more severe sentence upon a defendant after a
new trial, the reasons for his doing so must affirmatively
appear."
395 U.S. at
395 U. S. 726.
This rule has been read to
"[apply] a presumption of vindictiveness, which may be overcome
only by objective information in the record justifying the
increased sentence."
United States v. Goodwin, 457 U.
S. 368,
457 U. S. 374
(1982). The rationale for requiring that "the factual data upon
which the increased sentence is based" be made part of the record,
of course, is that the "constitutional legitimacy" of the enhanced
sentence may thereby be readily assessed on appeal.
Ibid.
In
Pearce, the State had offered "no evidence" whatever
to justify respondent Rice's increased sentence; it had not even
"attempted to explain or justify" the greater penalty. 395 U.S. at
395 U. S. 726.
Similarly, the State had advanced no reason for Pearce's sentence
"beyond the naked power to impose it,"
ibid. Finding the
record barren of any evidence to rebut the presumption of
vindictiveness and support the increased sentences in either of the
two cases in
Pearce, the Court affirmed the judgments
granting relief.
B
In only one other circumstance has the Court identified a need
to indulge a presumption of vindictiveness of the kind imposed in
Pearce. In
Blackledge v. Perry, 417 U. S.
21 (1974), Perry, while in state prison, was involved in
a fight with a fellow inmate, and was charged with the misdemeanor
offense of assault with a deadly weapon. He was convicted in the
State's District Court Division and sentenced to a 6-month prison
term to run consecutively to the term he was then serving. He
appealed to the County Superior Court, where, under applicable
state law, he had a right to a trial
de novo.
After Perry filed his notice of appeal, but before trial, the
prosecutor obtained an indictment against Perry for the felony
offense of assault with a deadly weapon with intent to kill and
inflict serious bodily injury. Perry pleaded guilty to the
Page 468 U. S. 566
felony offense and was sentenced to a term of five to seven
years' imprisonment to run consecutively with the sentence he was
then serving. The effect of this was to increase Perry's sentence
by the 17 months that he had already served under the sentence
imposed by the District Court Division.
We held that the indictment for the felony offense was
impermissible under the Due Process Clause of the Fourteenth
Amendment, stating that
"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."
Id. at
417 U. S. 27.
The prosecutor, we noted,
"clearly has a considerable stake in discouraging convicted
misdemeanants from appealing and . . . obtaining a trial
de
novo. . . ."
Ibid.
Although there was no affirmative evidence tendered that the
prosecutor brought the felony charge in bad faith, we agreed that,
because the record was devoid of any explanation for the new
indictment, relief should be granted. Consistent with
Pearce, however, we explicitly observed that a different
disposition would have been called for had the State advanced a
legitimate nonvindictive justification for the greater charge. 417
U.S. at
417 U. S. 29, n.
7. This acknowledgment, of course, was no more than a reaffirmation
that
Pearce established a rebuttable presumption of
vindictiveness, not an absolute prohibition on enhancement of
sentence.
Because of its "severity,"
see Goodwin, supra, at
457 U. S. 373,
the Court has been chary about extending the
Pearce
presumption of vindictiveness when the likelihood of vindictiveness
is not as pronounced as in
Pearce and
Blackledge.
This reluctance is understandable, for, as we have noted, operation
of the presumption often "block[s] a legitimate response to
criminal conduct." 457 U.S. at
457 U. S. 373.
In the four following cases, we expressly declined invitations to
extend the presumption.
We saw no need for application of the presumption in the context
of Kentucky's two-tier trial system.
Colten
Page 468 U. S. 567
v. Kentucky, supra. Under Kentucky law, a defendant
convicted of a misdemeanor in the inferior court had the right to a
trial
de novo in a court of general jurisdiction. We
rejected the contention in
Colten that the
de
novo tribunal was constitutionally prohibited from imposing a
greater sentence than that imposed in the original trial. We held
that "[t]he possibility of vindictiveness, found to exist in
Pearce, [was] not inherent in the Kentucky two-tier
system."
Id. at
407 U. S. 116.
While we believed that the prophylactic rule was unnecessary, we
left open the possibility that a defendant might prove actual
vindictiveness, and thereby establish a due process violation; we
held only that the Kentucky trial
de novo system, "as
such," was not unconstitutional.
Id. at
407 U. S.
119.
Similarly, in Chaffin v. Stynchcombe, 412 U. S.
17 (1973), we rejected the need for the prophylactic
Pearce presumption because we perceived as "
de
minimis" the possibility that an increased sentence by a jury
upon reconviction after a new trial would be motivated by
vindictiveness. Not only was the second jury in
Chaffin
unaware of the prior conviction, but, in contrast to the judge and
the prosecutor in
Pearce and
Blackledge, it was
thought unlikely that a jury would consider itself to have a
"personal stake" in a prior conviction or a "motivation to engage
in self-vindication." 412 U.S. at
412 U. S. 27. We
emphasized in
Chaffin that
"
Pearce was not written with a view to protecting
against the mere possibility that, once the slate is wiped clean
and the prosecution begins anew, a fresh sentence may be higher for
some valid reason associated with the need for flexibility and
discretion in the sentencing process."
Id. at
412 U. S. 25.
Pearce, we explained, was only "premised on the apparent
need to guard against
vindictiveness in the resentencing
process." 412 U.S. at
412 U. S. 25
(emphasis in original). Consequently, as in
Colten, we
noted that jury sentencing used as a means of "punishing or
penalizing the assertion of protected rights" might violate due
process. 412 U.S. at
412 U. S. 32, n.
20.
Page 468 U. S. 568
In
Bordenkircher v. Hayes, 434 U.
S. 357 (1978), we held that due process is not
implicated when a prosecutor threatens to seek conviction on a
greater offense if the defendant does not plead guilty and in fact
does so when the defendant proceeds to trial. We declined to
characterize this conduct as "punishment or retaliation" offensive
to due process,
id. at
434 U. S. 363,
instead noting that such was a mere byproduct of the
"
give-and-take negotiation common in plea bargaining.'"
Id. at 434 U. S. 362
(quoting Parker v. North Carolina, 397 U.
S. 790, 397 U. S. 809
(1970) (BRENNAN, J., dissenting)). As in Colten and
Chaffin, we did not rule out, however, the possibility
that a defendant could establish a due process violation by proof
of actual vindictiveness. See United States v. Goodwin,
457 U.S. at 457 U. S. 380,
n. 12.
Most recently, we held in
United States v. Goodwin,
supra, that the
Pearce presumption of vindictiveness
is unwarranted where a prosecutor adds a felony charge before trial
to a defendant's misdemeanor charge after the defendant demands a
jury trial on the misdemeanor charge. We thought it highly
unlikely
"that a prosecutor would respond to a defendant's pretrial
demand for a jury trial by bringing charges not in the public
interest."
457 U.S. at
457 U. S. 384.
Consistent with our earlier cases, we again explicitly
recognized
"the possibility that a defendant in an appropriate case might
prove objectively that the prosecutor's charging decision was
motivated by a desire to punish him for doing something that the
law plainly allowed him to do."
Ibid. (footnote omitted).
If it was not clear from the Court's holding in
Pearce,
it is clear from our subsequent cases applying
Pearce that
due process does not in any sense forbid enhanced sentences or
charges, but only enhancement motivated by actual vindictiveness
toward the defendant for having exercised guaranteed rights. In
Pearce and in
Blackledge, the Court "presumed"
that the increased sentence and charge were the products of actual
vindictiveness aroused by the defendants' appeals. It held that the
defendants' right to due process
Page 468 U. S. 569
was violated not because the sentence and charge were enhanced,
but because there was no evidence introduced to rebut the
presumption that actual vindictiveness was behind the increases; in
other words, by operation of law, the increases were deemed
motivated by vindictiveness. In
Colten, Chaffin,
Bordenkircher, and
Goodwin, on the other hand --
where the presumption was held not to apply -- we made clear that a
due process violation could be established only by proof of actual
vindictiveness.
In sum, where the presumption applies, the sentencing authority
or the prosecutor must rebut the presumption that an increased
sentence or charge resulted from vindictiveness; where the
presumption does not apply, the defendant must affirmatively prove
actual vindictiveness.
III
A
Here, petitioner in effect received a greater sentence of
confinement following retrial than he had originally received. This
was sufficient to engage the presumption of
Pearce. In
sharp contrast to
Pearce and
Blackledge, however,
the trial judge here carefully explained his reasons for imposing
the greater sentence. The care with which the trial judge
approached the resentencing is clear from the record, and it bears
repeating:
"[W]hen I imposed sentence the first time, the only conviction
on [petitioner's] record in this Court's eyes, this Court's
consideration, was failure to file income tax returns, nothing
else. I did not consider then ,and I don't in other cases either,
pending matters, because that would result in a pyramiding of
sentences. At this time, he comes before me with two convictions.
Last time, he came before me with one conviction."
Consideration of a criminal conviction obtained in the interim
between an original sentencing and a sentencing
Page 468 U. S. 570
after retrial is manifestly legitimate. This amply rebuts any
presumption of vindictiveness. Here, the trial judge's
justification is plain even from the record of petitioner's first
sentencing proceeding; the judge informed the parties that,
although he did not consider pending charges when sentencing a
defendant, he always took into account prior criminal convictions.
This, of course, was proper; indeed, failure to do so would have
been inappropriate.
Petitioner does not charge that the judge was vindictive.
Rather, he argues that any consideration of his intervening
conviction was foreclosed by the plain language of
Pearce.
Petitioner points to the passage in
Pearce stating that
the reasons posited by a court for increasing a defendant's
sentence on retrial
"must be based upon objective information concerning
identifiable conduct on the part of the defendant occurring
after the time of the original sentencing proceeding."
395 U.S. at
395 U. S. 726
(emphasis added). His contention is that the "conduct" for which he
was convicted,
i.e., possession of counterfeit
certificates of deposit, occurred prior to the time of his original
sentencing proceeding, and thus could not be considered by the
trial judge.
Pearce is not without its ambiguities; the passage
recited by petitioner, for example, is said by petitioner to
conflict with the following language in the same section of the
opinion:
"A man who is retried after his first conviction has been set
aside may be acquitted. If convicted, he may receive a shorter
sentence, he may receive the same sentence, or he may receive a
longer sentence than the one originally imposed. . . ."
". . . A trial judge is not constitutionally precluded, in other
words, from imposing a new sentence, whether greater or less than
the original 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,
Page 468 U. S. 571
and mental and moral propensities.'
Williams v. New
York, 337 U. S. 241,
337 U. S.
245. Such information may come to the judge's attention
from evidence adduced at the second trial itself, from a new
presentence investigation, from the defendant's prison record, or
possibly from other sources."
Id. at
395 U. S.
722-723 (emphasis added).
B
In addition, two of the separate opinions in
Pearce
suggest that the Court did not intend to confine the sentencing
authority's consideration to "conduct" occurring subsequent to the
first sentencing proceeding. Justice Douglas characterized the
Court's holding as allowing a greater sentence to be justified by
"events subsequent to the first trial," and by "information that
has developed after the initial trial."
Id. at
395 U. S. 736,
and n. 6 (concurring opinion). Justice Black did not refer to a
temporal limitation on the information that could be considered. He
appeared to believe that the sole requirement imposed by the
majority was that the "state courts articulate their reasons for
imposing particular sentences."
Id. at
395 U. S. 741
(opinion concurring in part and dissenting in part).
C
We find it unnecessary, however, to reconcile these apparent
ambiguities. In the two cases before the Court in
Pearce,
there was no asserted explanation or justification for the
heightened sentence. This case, on the other hand, squarely
presents the question of the scope of information that may be
relied upon by a sentencing authority to justify an increased
sentence after retrial.
We conclude that any language in
Pearce suggesting that
an intervening conviction for an offense committed prior to the
original sentencing may not be considered upon sentencing after
retrial is inconsistent with the
Pearce opinion as a
whole. There is no logical support for a distinction between
Page 468 U. S. 572
"events" and "conduct" of the defendant occurring after the
initial sentencing insofar as the kind of information that may be
relied upon to show a nonvindictive motive is concerned. This is
clear from
Williams v. New York, 337 U.
S. 241 (1949), which provides that the underlying
philosophy of modern sentencing is to take into account the person
as well as the crime by considering "information concerning every
aspect of a defendant's life."
Id. at
337 U. S.
250.
Even without a limitation on the type of factual information
that may be considered, the requirement that the sentencing
authority or prosecutor detail the reasons for an increased
sentence or charge enables appellate courts to ensure that a
nonvindictive rationale supports the increase. A contrary
conclusion would result in the needless exclusion of relevant
sentencing information from the very authority in whom the
sentencing power is vested. The response of the Court of Appeals to
petitioner's argument was entirely correct: "No reason exists for
applying a phrase in the
Pearce guidelines to
circumstances bearing no relation to the purpose of those
guidelines." 700 F.2d at 668.
IV
We hold that after retrial and conviction following a
defendant's successful appeal, a sentencing authority may justify
an increased sentence by affirmatively identifying relevant conduct
or events that occurred subsequent to the original sentencing
proceedings. 395 U.S. at
395 U. S. 726.
*
Affirmed.
Page 468 U. S. 573
* The Government argues that the "temporal limitation" imposed
by
Pearce on information that may be considered by a
sentencing authority is unnecessary to advance the policies
underlying that decision. However, the question whether an
increased sentence can be justified by reference to an event or
conduct occurring before the original sentencing is not presented
in this case.
JUSTICE POWELL, with whom JUSTICE BLACKMUN joins, concurring in
part and concurring in the judgment.
I join all but Parts II-B and III-B of the Court's opinion. I
write to emphasize my view that this case involves a
straightforward application of the Court's holding in
North
Carolina v. Pearce, 395 U. S. 711
(1969). The trial judge applied
Pearce with commendable
care, drawing a distinction at the sentencing stage of the first
trial between undecided pending charges and prior convictions. At
the sentencing stage following the second trial, the judge stated
on the record that "[a]t this time, [petitioner] comes before me
with two convictions. Last time, he came before me with one
conviction." App. to Pet. for Cert. A-42.
Petitioner insists that this explanation of the increased
sentence is insufficient because it does not, in the words of
Pearce, "concer[n] identifiable
conduct on the
part of the [petitioner] occurring after the time of the original
sentencing proceeding." 395 U.S. at
395 U. S. 726
(emphasis added). He argues that the "conduct" was his prior crime;
not the conviction.
At a different point in
Pearce, however, the Court
stated that
"a new sentence, whether greater or less than the original
sentence, [may be imposed] in the light of
events
subsequent to the first trial that may have thrown new light upon
the defendant's 'life, health, habits, conduct, mental and moral
propensities.'"
Id. at
395 U. S. 723
(emphasis added). The difference in language relied upon by
petitioner is a matter of semantics -- not substance. As the Court
of Appeals stated, petitioner's argument would "exal[t] words above
substance," 700 F.2d 663, 667 (1983). When read properly, there
simply is no conflict in the
Pearce language.*
Page 468 U. S. 574
The
Pearce presumption is not simply concerned with
actual vindictiveness, but also was intended to protect against
reasonable apprehension of vindictiveness that could deter a
defendant from appealing a first conviction. 395 U.S. at
395 U. S. 725.
Both of these concerns are fully met in this case. It would be
difficult to think of an event or occurrence more relevant to the
determination of a proper sentence than a criminal conviction
obtained in the interim between an original sentencing and a
sentencing following retrial.
I view the portions of the Court opinion that I have joined as
being fully consistent with the foregoing views.
* Indeed, in most situations -- such as here -- relevant conduct
of the defendant is subsumed in the term "events." Of course, there
may be subsequent events -- as well as subsequent conduct -- that
are irrelevant to any question of a sentence enhancement. Clearly
this is not such a case.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in
the judgment.
Substantially for the reasons expressed by JUSTICE POWELL in his
separate opinion, I concur in the judgment.
JUSTICE STEVENS, concurring in the judgment.
The reason I am unable to join the opinion that THE CHIEF
JUSTICE has authored is that it interprets
North Carolina v.
Pearce, 395 U. S. 711
(1969), as resting entirely on a concern with the actual
vindictiveness of the sentencing judge, and does not identify the
interest in protecting the defendant against the reasonable
apprehension of vindictiveness that might deter him from
prosecuting a meritorious appeal.
See id. at
395 U. S.
724-725.
"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."
Blackledge v. Perry, 417 U. S. 21,
417 U. S. 28
(1974) (quoting
Pearce, 395 U.S. at
395 U. S.
725). What I believe to be the correct reading of
Pearce is set forth in Judge
Page 468 U. S. 575
Markey's able opinion for the Court of Appeals.
See 700
F.2d 663 (CA11 1983).
Because the flaw in THE CHIEF JUSTICE s opinion infects its
Parts II-A and III-C as well as Parts II-B and III-B, I cannot join
JUSTICE POWELL's opinion, though I, like JUSTICE BRENNAN, JUSTICE
MARSHALL, JUSTICE BLACKMUN, and JUSTICE POWELL, would decide this
case on the ground that affirmance of a prior conviction after the
initial sentencing constitutes the type of intervening event that
may be considered by a trial judge as a ground for enhancing a
sentence after a successful appeal.