After respondent was convicted in an Arkansas state court on
charges of burglary, assault, and murder, the Arkansas Supreme
Court set aside the murder conviction, and plea negotiations
ensued. A deputy prosecutor proposed to respondent's attorney that,
in exchange for a guilty plea to a charge of accessory after a
felony murder, the prosecutor would recommend a 21-year sentence to
be served concurrently with the concurrent burglary and assault
sentences. However, when defense counsel called the prosecutor
three days later and communicated respondent's acceptance of the
offer, the prosecutor told counsel that a mistake had been made,
and withdrew the offer. He proposed instead that, in exchange for a
guilty plea, he would recommend a 21-year sentence to be served
consecutively to the other sentences. Respondent rejected the new
offer, but after a mistrial was declared, he ultimately accepted
the prosecutor's second offer, and the trial judge imposed a
21-year sentence to be served consecutively to the previous
sentences. After exhausting state remedies, respondent sought
habeas corpus relief in Federal District Court with respect to his
guilty plea. The court dismissed the petition, holding that
respondent had understood the consequences of his guilty plea, that
he had received effective assistance of counsel, and that, because
it was not established that he had detrimentally relied on the
prosecutor's first proposed plea agreement, respondent had no right
to enforce it. However, the Court of Appeals reversed, holding that
"fairness" precluded the prosecution's withdrawal of the plea
proposal once accepted by respondent.
Held: Respondent's acceptance of the prosecutor's first
proposed plea bargain did not create a constitutional right to have
the bargain specifically enforced, and he may not successfully
attack his subsequent guilty plea. Plea agreements are consistent
with the requirements that guilty pleas be made voluntarily and
intelligently. If a defendant was not fairly apprised of its
consequences, his guilty plea can be challenged under the Due
Process Clause. And when the prosecution breaches its promise with
respect to an executed plea agreement, the defendant pleads guilty
on a false premise, and hence his conviction cannot stand.
However,
Page 467 U. S. 505
respondent's plea was in no sense induced by the prosecutor's
withdrawn offer, and it rested on no unfulfilled promise; he knew
the prosecution would recommend a 21-year consecutive sentence.
Thus, because it did not impair the voluntariness or intelligence
of his guilty plea, respondent's inability to enforce the
prosecutor's first offer is without constitutional significance.
Neither is the question whether the prosecutor was negligent or
otherwise culpable in first making and then withdrawing his offer
relevant.
Cf. Santobello v. New York, 404 U.
S. 257. Pp.
467 U. S.
507-511.
707 F.2d 323, reversed.
STEVENS, J., delivered the opinion for a unanimous Court.
JUSTICE STEVENS delivered the opinion of the Court.
The question presented is whether a defendant's acceptance of a
prosecutor's proposed plea bargain creates a constitutional right
to have the bargain specifically enforced.
In the late evening of May 22, 1970, three members of a family
returned home to find a burglary in progress. Shots were exchanged
resulting in the daughter's death and the wounding of the father
and respondent -- one of the burglars. Respondent was tried and
convicted on three charges: burglary, assault, and murder. The
murder conviction was set aside by the Arkansas Supreme Court,
Johnson v. State, 252 Ark. 1113,
482 S.W.2d
600 (1972). Thereafter, plea negotiations ensued.
At the time of the negotiations, respondent was serving his
concurrent 21- and 12-year sentences on the burglary and assault
convictions. On Friday, October 27, 1972, a deputy
Page 467 U. S. 506
prosecutor proposed to respondent's attorney that, in exchange
for a plea of guilty to the charge of accessory after a felony
murder, the prosecutor would recommend a sentence of 21 years to be
served concurrently with the burglary and assault sentences. On the
following day, counsel communicated the offer to respondent, who
agreed to accept it. On the next Monday, the lawyer called the
prosecutor "and communicated [respondent's] acceptance of the
offer." App. 10. The prosecutor then told counsel that a mistake
had been made, and withdrew the offer. He proposed instead that, in
exchange for a guilty plea, he would recommend a sentence of 21
years, to be served consecutively to respondent's other
sentences.
Respondent rejected the new offer and elected to stand trial. On
the second day of trial, the judge declared a mistrial, and plea
negotiations resumed, ultimately resulting in respondent's
acceptance of the prosecutor's second offer. In accordance with the
plea bargain, the state trial judge imposed a 21-year sentence to
be served consecutively to the previous sentences.
After exhausting his state remedies, respondent filed a petition
for a writ of habeas corpus under 28 U.S.C. § 2254. [
Footnote 1] The District Court dismissed the
petition, finding that respondent had understood the consequences
of his guilty plea, that he had received the effective assistance
of counsel, and that, because the evidence did not establish that
respondent had detrimentally relied on the prosecutor's first
proposed plea agreement, respondent had no right to enforce it. The
Court of Appeals reversed, 707 F.2d 323 (CA8 1983), over Judge John
R. Gibson's dissent. The majority concluded that "fairness"
precluded the prosecution's withdrawal of a plea proposal once
accepted by respondent. Because of a
Page 467 U. S. 507
conflict in the Circuits, [
Footnote 2] coupled with our concern that an important
constitutional question had been wrongly decided, we granted
certiorari, 464 U.S. 1017 (1983). We now reverse. [
Footnote 3]
Respondent can obtain federal habeas corpus relief only if his
custody is in violation of the Federal Constitution. [
Footnote 4] A plea bargain, standing alone,
is without constitutional significance; in itself, it is a mere
executory agreement which, until embodied in the judgment of a
court, does not deprive an accused of liberty or any other
constitutionally protected interest. [
Footnote 5] It is the ensuing guilty plea that implicates
the
Page 467 U. S. 508
Constitution. Only after respondent pleaded guilty was he
convicted, and it is that conviction which gave rise to the
deprivation of respondent's liberty at issue here. [
Footnote 6]
It is well settled that a voluntary and intelligent plea of
guilty made by an accused person, who has been advised by competent
counsel, may not be collaterally attacked. [
Footnote 7] It is also well settled that plea
agreements are consistent with the requirements of voluntariness
and intelligence -- because each side may obtain advantages when a
guilty plea is exchanged for sentencing concessions, the agreement
is no less voluntary than any other bargained-for exchange.
[
Footnote 8] It is only
Page 467 U. S. 509
when the consensual character of the plea is called into
question that the validity of a guilty plea may be impaired. In
Brady v. United States, 397 U. S. 742
(1970), we stated the applicable standard:
"[A] plea of guilty entered by one fully aware of the direct
consequences, including the actual value of any commitments made to
him by the court, prosecutor, or his own counsel, must stand unless
induced by threats (or promises to discontinue improper
harassment), misrepresentation (including unfulfilled or
unfulfillable promises), or perhaps by promises that are, by their
nature, improper as having no proper relationship to the
prosecutor's business (
e.g., bribes).:"
Id. at
397 U. S. 755
(quoting
Shelton v. United States, 246 F.2d 571, 572, n. 2
(CA5 1957) (en banc) (in turn quoting 242 F.2d 101, 115 (Tuttle,
J., dissenting to panel opinion)),
rev'd on other grounds,
356 U. S. 26
(1958)).
Thus, only when it develops that the defendant was not fairly
apprised of its consequences can his plea be challenged under the
Due Process Clause.
Santobello v. New York, 404 U.
S. 257 (1971), illustrates the point. We began by
acknowledging that the conditions for a valid plea
"presuppose fairness in securing agreement between an accused
and a prosecutor. . . . The plea must, of course, be voluntary and
knowing, and, if it was induced by promises, the essence of those
promises must in some way be made known."
Id. at
404 U. S.
261-262. It follows that, when the prosecution breaches
its promise with respect to an executed plea agreement, the
defendant pleads guilty on a false premise, and hence his
conviction cannot stand:
"[W]hen a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of
the inducement or consideration, such promise must be
fulfilled."
Id. at
404 U. S. 262.
[
Footnote 9]
Page 467 U. S. 510
Santobello demonstrates why respondent may not
successfully attack his plea of guilty. Respondent's plea was in no
sense induced by the prosecutor's withdrawn offer; unlike
Santobello, who pleaded guilty thinking he had bargained for a
specific prosecutorial sentencing recommendation which was not
ultimately made, at the time respondent pleaded guilty, he knew the
prosecution would recommend a 21-year consecutive sentence.
Respondent does not challenge the District Court's finding that he
pleaded guilty with the advice of competent counsel and with full
awareness of the consequences -- he knew that the prosecutor would
recommend and that the judge could impose the sentence now under
attack. [
Footnote 10]
Respondent's plea was thus in no sense the product of governmental
deception; it rested on no "unfulfilled promise," and fully
satisfied the test for voluntariness and intelligence.
Thus, because it did not impair the voluntariness or
intelligence of his guilty plea, respondent's inability to enforce
the prosecutor's offer is without constitutional significance.
[
Footnote 11]
Page 467 U. S. 511
Neither is the question whether the prosecutor was negligent or
otherwise culpable in first making and then withdrawing his offer
relevant. The Due Process Clause is not a code of ethics for
prosecutors; its concern is with the manner in which persons are
deprived of their liberty. [
Footnote 12] Here, respondent was not deprived of his
liberty in any fundamentally unfair way. Respondent was fully aware
of the likely consequences when he pleaded guilty; it is not unfair
to expect him to live with those consequences now.
The judgment of the Court of Appeals is
Reversed.
[
Footnote 1]
The petition was referred to a Magistrate, who conducted an
evidentiary hearing and made recommended findings of fact and
conclusions of law, which the District Court subsequently
adopted.
[
Footnote 2]
Compare Virgin Islands v. Scotland, 614 F.2d 360 (CA3
1980),
and United States v. Greenman, 700 F.2d 1377
(CA11),
cert. denied, 464 U.S. 992 (1983),
with Cooper
v. United States, 594 F.2d 12 (CA4 1979).
[
Footnote 3]
This case is not moot, despite the fact that respondent has been
paroled. Respondent remains in the "custody" of the State,
see
Jones v. Cunningham, 371 U. S. 236
(1963);
see generally Justices of Boston Municipal Court v.
Lydon, 466 U. S. 294,
466 U. S.
300-302 (1984);
Hensle v. Municipal Court,
411 U. S. 345
(1973); and whether respondent must serve the sentence now under
attack consecutively to his prior sentences will affect the date at
which his parole will expire under state law,
see
Ark.Stat.Ann. § 43-2807(c) (Supp.1983). Respondent's challenge to
the duration of his custody therefore remains live.
[
Footnote 4]
E.g., Townsend v. Sain, 372 U.
S. 293,
372 U. S. 312
(1963). In pertinent part, the habeas statute provides:
"The Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of
a State court only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a).
[
Footnote 5]
Under Arkansas law, there is no entitlement to have the trial
court impose a recommended sentence, since a negotiated sentence
recommendation does not bind the court,
see Varnedare v.
State, 264 Ark. 596, 599,
573 S.W.2d
57, 60 (1978);
Marshall v. State, 262 Ark. 726, 561
S.W.2d 76 (1978); Ark.Rule Crim. Proc. 25.3(c); there is a critical
difference between an entitlement and a mere hope or expectation
that the trial court will follow the prosecutor's recommendation,
see Olim v. Wakinekona, 461 U. S. 238,
461 U. S.
248-251 (1983);
Jago v. Van Curen, 454 U. S.
14,
454 U. S. 19-21
(1981) (per curiam);
Connecticut Board of Pardons v.
Dumschat, 452 U. S. 458,
452 U. S.
465-467 (1981);
Meachum v. Fano, 427 U.
S. 215,
427 U. S.
226-227 (1976).
[
Footnote 6]
See Boykin v. Alabama, 395 U.
S. 238 (1969);
Kercheval v. United States,
274 U. S. 220,
274 U. S. 223
(1927).
[
Footnote 7]
See Tollett v. Henderson, 411 U.
S. 258,
411 U. S.
266-267 (1973);
North Carolina v. Alford,
400 U. S. 25,
400 U. S. 31
(1970);
Parker v. North Carolina, 397 U.
S. 790,
397 U. S.
797-798 (1970);
McMann v. Richardson,
397 U. S. 759,
397 U. S. 772
(1970);
Brady v. United States, 397 U.
S. 742,
397 U. S.
747-748 (1970).
See also Henderson v. Morgan,
426 U. S. 637
(1976);
Menna v. New York, 423 U. S.
61 (1975) (per curiam).
[
Footnote 8]
See Corbitt v. New Jersey, 439 U.
S. 212,
439 U. S.
219-220, 222-223 (1978);
Bordenkircher v.
Hayes, 434 U. S. 357,
434 U. S. 363
(1978);
Blackledge v. Allison, 431 U. S.
63,
431 U. S. 71
(1977);
Santobello v. New York, 404 U.
S. 257,
404 U. S.
260-261 (1971). For example, in
Brady v. United
States, we wrote:
"For a defendant who sees slight possibility of acquittal, the
advantages of pleading guilty and limiting the probable penalty are
obvious -- his exposure is reduced, the correctional processes can
begin immediately, and the practical burdens of a trial are
eliminated. For the State, there are also advantages -- the more
promptly imposed punishment after an admission of guilt may more
effectively attain the objectives of punishment; and with the
avoidance of trial, scarce judicial and prosecutorial resources are
conserved for those cases in which there is a substantial issue of
the defendant's guilt or in which there is substantial doubt that
the State can sustain its burden of proof. It is this mutuality of
advantage that perhaps explains the fact that, at present, well
over three-fourths of the criminal convictions in this country rest
on pleas of guilty, a great many of them no doubt motivated at
least in part by the hope or assurance of a lesser penalty than
might be imposed if there were a guilty verdict after a trial to
judge or jury."
397 U.S. at
397 U. S. 752
(footnotes omitted).
[
Footnote 9]
See also 404 U.S. at
404 U. S. 266
(Douglas, J., concurring);
id. at
404 U. S. 269
(MARSHALL, J., concurring in part and dissenting in part).
[
Footnote 10]
Respondent suggests that the prosecutor's withdrawal of the
initial offer undermined his confidence in defense counsel, in
violation of his Sixth Amendment right to counsel. This argument is
simply at odds with reason. Prosecutors often come to view an
offense more seriously during the course of pretrial investigation
for reasons entirely unrelated to what defense counsel has done or
is likely to do.
See United States v. Goodwin,
457 U. S. 368,
457 U. S. 381
(1982). We fail to see how an accused could reasonably attribute
the prosecutor's change of heart to his counsel any more than he
could have blamed counsel had the trial judge chosen to reject the
agreed-upon recommendation, or, for that matter, had he gone to
trial and been convicted. The District Court and the Court of
Appeals concluded that counsel effectively advised respondent; that
is all the Constitution requires.
See United States v.
Cronic, 466 U. S. 648,
466 U. S.
656-657, n.19 (1984);
Tollett v. Henderson, 411
U.S. at
411 U. S.
266-268;
Parker v. North Carolina, 397 U.S. at
397 U. S.
797-798;
McMann v. Richardson, 397 U.S. at
397 U. S.
770-771.
[
Footnote 11]
Indeed, even if respondent's plea were invalid,
Santobello expressly declined to hold that the
Constitution compels specific performance of a broken prosecutorial
promise as the remedy for such a plea; the Court made it clear that
permitting Santobello to replead was within the range of
constitutionally appropriate remedies.
See 404 U.S. at
404 U. S.
262-263;
see also id. at
404 U. S.
268-269 (MARSHALL, J., concurring in part and dissenting
in part). It follows that respondent's constitutional rights could
not have been violated. Because he pleaded after the prosecution
had breached its "promise" to him, he was in no worse position than
Santobello would have been had he been permitted to replead.
[
Footnote 12]
Santobello itself rejected the relevance of
prosecutorial culpability:
"It is now conceded that the promise to abstain from a
recommendation was made, and, at this stage, the prosecution is not
in a good position to argue that its inadvertent breach of
agreement is immaterial. The staff lawyers in a prosecutor's office
have the burden of 'letting the left hand know what the right hand
is doing' or has done. That the breach of agreement was inadvertent
does not lessen its impact."
Id. at
404 U. S. 262.
Cf. United states v. Agurs, 427 U. S.
97,
427 U. S. 110
(1976).