Blackledge v. Perry , 94 S. Ct. 2098 ( 1974 )

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, 15-177.1. The right to trial dé 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.¹

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. § 14-32 (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.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 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 856.³ 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 State in baling 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.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 724. Because “vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial,” id., at 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.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 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 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 tíentral 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 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 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.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 to Perry’s invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo.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 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 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 rights that occurred prior to the entry of the guilty plea.” Ibid. Rather, a person complaining of such “antecedent constitutional violations,” id., at 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 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 266, 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 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 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 is 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.⁸

Accordingly, the judgment of the Court of Appeals for the Fourth Circuit is affirmed. R sQ

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.

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.

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.

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, 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, 724-725; Chaffin v. Stynchcombe, 412 U. S. 17, 24 n. 11.

5 For a more exhaustive list of States employing similar two-tiered procedures, see Colten, supra, at 112 n. 4.

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).

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.

8 Contrary to the dissenting opinion, our decision today does not “assure that no penalty whatever will be imposed” on respondent. Post, at 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.