Dunn v. Colleran

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

4-20-2001

Dunn v. Colleran

Precedential or Non-Precedential:

Docket 99-1030

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Filed April 20, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1030

JOHN WILLIAM DUNN,

Appellant

v.

RAYMOND J. COLLERAN (Acting Superintendent);

THE ATTORNEY GENERAL OF THE STATE OF

PENNSYLVANIA; THE DISTRICT ATTORNEY OF

ALLENTOWN, PA.

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

D.C. Civil No. 98-cv-00801

District Judge: The Honorable Stewart Dalzell

Argued: December 7, 2000

Before: BARRY and COWEN, Circuit Judges, and

WARD,* District Judge

(Opinion Filed: April 20, 2001)

_________________________________________________________________

* The Honorable Robert J. Ward, United States District Judge for the

Southern District of New York, sitting by designation.

Arthur John Kyriazis, Esquire

(Argued)

Kyriazis and Associates

1806 Garrett Road

Lansdowne, Pennsylvania 19050

Attorney for Appellant

Kelly B. Waldron, Esquire (Ar gued)

Douglas G. Reichley, Esquire

Deputy District Attorney

Office of the District Attorney

Lehigh County Courthouse

455 West Hamilton Street

Allentown, Pennsylvania 18101

Attorney for Appellee

OPINION OF THE COURT

BARRY, Circuit Judge:

Our criminal justice system is bottomed on several

unwavering principles. One of those principles was

recognized long ago by Justice Sutherland when he stated

that a prosecuting attorney

is the representative not of an or dinary party to a

controversy, but of a sovereignty whose obligation to

govern impartially is as compelling as its obligation to

govern at all; and whose interest, ther efore, in a

criminal prosecution is not that it shall win a case, but

that justice shall be done. As such, he is in a peculiar

and very definite sense the servant of the law, the

twofold aim of which is that guilt shall not escape or

innocence suffer. He may prosecute with earnestness

and vigor--indeed, he should do so. But, while he may

strike hard blows, he is not at liberty to strike foul

ones. It is as much his duty to refrain fr om improper

methods calculated to produce a wrongful conviction

as it is to use every legitimate means to bring about a

just one.

2

Berger v. United States, 295 U.S. 78, 88-89 (1935),

overruled on other grounds, Stir one v. United States, 361

U.S. 212 (1960). Justice Sutherland's words continue to

guide us.

I.

John William Dunn inflicted grievous injuries on his

infant son. In exchange for his plea of nolo contendere, the

prosecutor promised, among other things, to recommend a

minimum sentence within the standard guideline range of

36-60 months. At sentencing, however, the pr osecutor did

not mention the standard guideline range, much less a

minimum sentence within that range, arguing instead that

while she could not ask the Court to impose the"maximum

possible penalty," "a lengthy term of incarceration is

necessary" -- a "penalty that's considerable." Dunn was

sentenced to seven and one-half to twenty years

imprisonment. He argues, and we agree, that the

prosecutor did not adhere to the ter ms of the bargain she

struck with him. We further find that the state court

unreasonably applied clearly established Supr eme Court

caselaw, and that the District Court erred in concluding

otherwise. Accordingly, we will reverse.

Dunn was charged with aggravated assault, simple

assault, reckless endangerment and endangering the

welfare of a child stemming from his February 10, 1992

assault on his two month-old son, John. On that day,

Dunn was left to care for his son while his wife was at

work. When Mrs. Dunn returned home in the evening, she

found her son moaning, rigid and non-responsive. The

infant's head was limply hanging down and to the right,

and his eyes were half-closed. When pressed as to what

happened, Dunn became angry and when he lear ned his

wife had called the pediatrician, he became enraged and

shattered a living room window. He initially refused to drive

Mrs. Dunn and his son to the pediatrician's office,

acquiescing only when she threatened to call a lawyer.

After examining the infant, the pediatrician immediately

admitted him to the hospital. The next day, Dunn admitted

to Detective Dean Schwartz that his son had been crying

3

and that Dunn had "lost it," became frustrated, and

"started to strike the child harder and har der and harder."

A471. He said that after he struck his son, he wrapped him

in a blanket, put him in his crib, let him cry for hours, and

never sought medical treatment. In what can only be

described as a massive understatement, he posited that

perhaps he was not the best person to watch a sick infant

because he was a recovering alcoholic.

The infant was diagnosed with shaken baby syndr ome

and remains severely disabled to this day. At the time of

sentencing, Mrs. Dunn testified that her then-fifteen month

old son requires continual nursing car e at home because

he suffers seizures, cannot see, is in tr emendous pain, is

fed through a gastrointestinal tube, vomits all the time, is

at constant risk of aspirating on his own mucous, has his

blood drawn constantly, cries for several hours at a time,

and is unable to grab for a toy, sit up, roll-over or even

reach for his mother. At that time, it was expected that

death was imminent. Despite the grave prognosis, John

Dunn is now 8 years old, with permanent brain damage

and facing numerous surgeries.

Dunn was released on bail shortly after his arr est and

filed a motion to suppress his incriminating statement.

Pursuant to an unwritten plea agreement and,

coincidentally, on the one-year anniversary of the assault,

Dunn withdrew that motion and pleaded nolo contendere to

aggravated assault and endangering the welfar e of a child.

That agreement was described at the plea hearing in the

following colloquy between the prosecutor and the Court:

[Prosecutor] . . . There is an agreement of sorts

in this case, Judge.

The Commonwealth is going to

be requesting the Court impose

consecutive sentences on the two

counts, as they do not merge.

However, I'd like for the sentencing

in the endangering to be a

consecutive term of probation, so

that after any parol [sic]

supervision is terminated, we have

4

an extra period of supervision on

this defendant.

Court: All right. It's my understanding,

Mr. Dunn --

[Prosecutor] Judge, there's one more thing. The

Commonwealth is recommending

a minimum in this case on Count

1 within the standard range,

standard guidelines range, but

that is not binding on the Court.

A460-A461. The Court later explained to Dunn:

Court: Now, what is not binding on the

Court and is left totally to the

discretion of the Court as far as

sentencing, the Commonwealth

indicates that they will

recommend consecutive sentences.

There will be a recommendation of

a sentence of a minimum which

would be in the standard range,

and that the second, the

endangering the welfare of

children, would be a sentence of

probation. However, that is not

binding on the Court in any way.

That is something which is

entirely up to the Court, that your

counsel has indicated --

[Defense Attorney]: Judge, if I could just interrupt.

That isn't what the plea bargain is.

The probation on the consecutive

on the endangering is binding.

Court: Is that binding?

[Prosecutor] Yes, Judge, I'd like to see some

extended supervision of this

defendant after any kind of jail

and parole supervision.

5

Court: What you're saying is that the

Commonwealth is requesting, but

you said it wasn't binding.

[Prosecutor] Judge, the sentence as to Count 1,

aggravated assault, is there --

there is a non-binding

recommendation. As to Count 4,

I'd like to see [a] binding

recommendation to probation

because I would like to ensure

extended supervision.

* * *

Court: All right.

Now, let's go through that again so

there's no misunderstanding here.

As I indicated, a plea of nolo

contendere to Count 1 and count

4. The aggravated assault and the

endangering the welfare of

children, that the other two counts

would be withdrawn. Likewise,

binding on the Court would be

that it would be a consecutive

sentence, the second sentence

being the endangering the welfare

of children, and binding on the

court would be that it be a

sentence of probation on that

charge. Now, if we were not to

accept that binding agreement

which we have not participated in,

then you would have a right to

withdraw your plea of guilty.

Now, the Commonwealth has

recommended, but it is not

binding on the Court, that on the

charge of aggravated assault that

the sentence be -- that the

minimum sentence be in the

standard range of sentencing.

6

However, as your counsel

indicated, it's not binding, and the

sentence could be less than that

and likewise, it could be even

more. Do you understand that?

Dunn: Yes, Your Honor.

A462-A464.

Dunn was sentenced on April 8, 1993. At the beginning

of the sentencing proceeding, the contours of the plea

agreement were again articulated by the sentencing judge

who clearly understood what -- at least at that point in

time -- the Commonwealth's recommendation was expected

to be.

Court: At the time of the entry of the

plea, there was a plea bargain

arrangement that the counts of

recklessly endangering another

person and the simple assault

would be withdrawn. The

Commonwealth also indicated that

they would recommend a

minimum sentence in the

standard range, although this was

not binding on the Court. In this

instance, the range would be 36 to

60 months. So it was the

Commonwealth's recommendation

that the minimum sentence be in

that range, but that it was not, as

I indicated, not binding on the

Court. There was a binding

agreement that the sentence on

Count 4 run consecutive.

However, that was to be a

sentence of probation which was

binding on this Court if the Court

would accept the plea bargain

arrangement.

[To the Prosecutor] is that your

7

understanding of the plea

agreement?

[Prosecutor] Yes, your Honor .

Court: [To Defense Attorney] is that your

understanding of the plea

agreement?

[Defense Attorney] Yes, your Honor.

A87-A88.

The Court then heard testimony from a number of

witnesses. For the Commonwealth, Mrs. Dunn testified that

Dunn had a drug problem before they wer e married, had a

drinking problem throughout their marriage, and was often

physically abusive towards her. She also confirmed that

prior to the February 10th incident, she told Dunn never to

"shake a baby vigorously, because it can cause severe brain

damage." Detective Schwartz told the Court that he

disagreed with the Commonwealth's recommended sentence

and recommended that Dunn be imprisoned for at least five

years and as much as the legal maximum -- "the steepest

that the Court can give is what I recommend. It's just an

unbelievable case." A419.

On Dunn's behalf, his sister testified that Dunn needed

to come to terms with what he did to his son as well as deal

with his emotional and substance abuse problems. The

chaplain at the Allentown Rescue Mission, wher e Dunn

lived for some time during the pendency of his case,

testified that although Dunn was cooperative while living at

the Mission, he was emotionally troubled, depr essed and

suicidal. The chaplain attributed Dunn's emotional trouble

to his stint in the United States Army and the death of his

father. With respect to the assault on the infant, the

chaplain indicated that Dunn did not understand how

patting his son on the back to raise a burp could have

caused severe brain damage. Another employee of the

Rescue Mission also testified that Dunn was emotionally

troubled. He said that Dunn still believed that his pats on

his son's back did not cause the infant's sever e brain

damage and regretted not having the r esources to prove

that at trial.

8

Finally, Dunn testified that he did not know at the time

that his son was injured. Indeed, he continued, he

remained mystified that patting his son on the back could

have caused such severe brain damage without leaving so

much as a bruise. Dunn conceded his problems with drugs

and alcohol as well as his unresolved feelings about his

father's death and hoped that he might one day live a

normal life.

After hearing this testimony, the Court called upon

counsel:

Court: Do Counsel wish to say anything

further?

[Prosecutor] Yes, Judge. I answer your question

yes and I don't even know what to

say, Judge. What I know is, I know

the injuries of the child. I know the

loss to the family. What I know is the

reasons for this plea. I think it's

pretty clear that I wanted to resolve

this in a plea. I didn't want these

parties, particularly, I didn't want

Grace [the mother of the infant] to go

through trial, testimony, the

possibility of any kind of verdict as

the result of a trial. I wanted to be

able to have this situation put behind

everyone.

On the other hand, Judge, there is

so much that I feel about this

situation. I feel that we've heard a

carload of excuses for his behavior, or

for his condition, meaning the

defendant. I don't believe that the

acts that occurred that Monday were

intentional. Yet the statute read[s]

reckless. And by this reckless

conduct, this child will never have a

life. This mother will face a possibility

of losing her child some day,

prematurely, to say the least. She

9

suffers with this child everyday,

Judge, in a way that no one should

ever have to suffer; watching a child

in constant pain and discomfort.

And I have not heard, nor read

anything, either in this proceeding, or

in this presentence investigation,

that demonstrates to me that

this defendant has even the

most remote understanding or

compassion for that. All we hear

about is him. I've not heard much

about his concern for the child, his

concern for their condition. You

heard Grace talk about the fact that

she is the sole support, now, for

herself and her child. The medical

situation worsens, the insurance

situation worsens. And there's not

much care on the part of the

defendant.

I've heard, ironically, this excuse. I

don't mean to minimize it, everyone

has problems, that perhaps the death

of his father plays in who he is. And

all I can think of is, isn't it ironic that

here was the opportunity for this

man to have his own son and to

establish a different kind of

father/son relationship. And that's

totally ruined and impossible. And so

I don't know that I can accept the

relationship of a father and a son as

an excuse for destroying another

relationship between a father and a

son.

I can't ask you to impose the

maximum possible penalty. That

would go outside of what my initial

recommendation was. And I think if I

10

would have a chance to sit down and

have a drink of water and calm

myself, maybe I would even think

that to ask for the absolute maximum

is unjust. But I believe this was

reckless conduct. Unfortunately, it

resulted in irreparable devastation.

But I think a lengthy term of

incarceration is necessary to address

what happened here, to get this

man's attention, to get his focus in

line, as to what he has to do, what he

did do, what he needs to do to move

on with his life. And maybe to give

this woman just five minutes of peace

of mind. . . .

I think that all of these parties have

spoken from the heart, Judge, and I

wouldn't want to be in your shoes for

all the tea in China. But I think that

something has to be done. It's

unfortunate that I didn't hear

remorse. I heard remorse for one's

own situation, one's own future. But

I didn't hear remorse for what

happened here. And I can't abide by

that. And I'm very sorry that I didn't

hear that. And I would ask that you

consider, Judge, a penalty that's

considerable and one that will

hopefully move this defendant's

behavior in line with what we find

socially acceptable, because this is

not.

A143-A146. The Court then sentenced Dunn on the

aggravated assault charge to not less than seven and one-

half years and not more than twenty years to be served in

a correctional institution designated by the Deputy

Commissioner for Treatment. On the endangering count,

Dunn was sentenced to a consecutive term offive years'

probation. The Court explained that the sentence exceeded

11

the guidelines because of Dunn's violent past, the especially

heinous nature of the crime, Dunn's failur e to seek medical

assistance after the incident, and the prognosis that the

infant would have a limited life.

Dunn thereafter filed a petition for post-conviction

collateral relief challenging, among other things, his

counsel's failure to object to or seek a r emedy for the

prosecutor's breach of the plea agr eement at sentencing. In

denying the petition, the Court explained that the

Commonwealth was obligated only to recommend a non-

binding sentence in the standard range. The Court stated

that it was well aware of the Commonwealth's

recommendation and that the prosecutor's r equest for a

"lengthy" period of incarceration was consistent with the

plea agreement because a sentence within the standard

range was, indeed, lengthy.

Dunn appealed from the order denying his petition. The

Superior Court affirmed, and found, as r elevant here, as

follows:

Initially, we note that a sentence in the standar d range

of the guidelines, as set forth at sentencing by the

court, would have called for a term of imprisonment of

three to five years imprisonment. This ter m can be

viewed as "lengthy" in and of itself. Thus, by

recommending a "lengthy" term of imprisonment the

district attorney did not violate the ter ms of the plea

agreement. Furthermore, three sentences before the

contested remark, the district attorney stated, "I can't

ask you to impose the maximum possible penalty. That

would go outside of what my initial recommendation

was." Thus, the district attorney clearly qualified the

contested remark by indicating his [sic]

recommendation was still intact.

A273-A274 (internal citation omitted). The Court further

found that there was no prejudice because the sentencing

court was well aware of the Commonwealth's

recommendation. The Supreme Court of Pennsylvania

denied review.

Dunn filed a timely petition pursuant to 28 U.S.C.S 2254

in the U.S. District Court for the Eastern District of

12

Pennsylvania again challenging the prosecutor's conduct at

sentencing. Adopting the report and recommendation of the

Magistrate Judge, the District Court concluded that

because the plea agreement permitted the Commonwealth

to recommend a minimum sentence of between 36 and 60

months and such a sentence was "lengthy" compared to the

mean minimum sentence imposed for aggravated assault,

the prosecutor's request for a "lengthy" sentence did not

breach the agreement. Finding, however , that this

conclusion was "by no means free from doubt," the District

Court sua sponte granted a certificate of appealability.

II.

It is wholly understandable that the prosecutor was

exasperated if not outraged following Dunn's pr esentation

at sentencing, a presentation which evidenced his utter

failure to accept responsibility for the savagery he inflicted

on his infant son. Indeed, we have felt those same emotions

in similar circumstances. And while we accept the

prosecutor's representation that her statements at

sentencing were not motivated by ill will, the motive of the

prosecutor is of no moment because it is the br each and

not the intent behind the breach which causes the error.

We, therefore, move to the only issue before us: whether the

state court unreasonably applied clearly established federal

law when it determined that the prosecutor did not breach

the plea agreement.1

In 1996, Congress enacted the Antiterrorism and

Effective Death Penalty Act (AEDPA), P .L. No. 104-132, 110

Stat. 1214, which "placed a new restriction on the power of

federal courts to grant writs of habeas corpus to state

prisoners." Williams v. Taylor, 529 U.S. 362, 399 (2000)

_________________________________________________________________

1. Dunn raises a number of other challenges to his conviction. Because

he never requested nor received a certificate of appealability as to those

issues, we address only the question of whether habeas relief should

issue if the Commonwealth breached its plea agr eement. 3d Cir.

LAR22.1(b) ("If the district court grants a certificate of appealability

as to

only some issues, the court of appeals will not consider uncertified

issues unless petitioner first seeks, and the court of appeals grants

certification of additional issues.")

13

(Opinion of O'Connor, J.). Because Dunn filed his habeas

petition after the effective date of the AEDP A, we are

required to apply that statute's r equirements. Predominant

among them is the requirement that federal courts give

greater deference than before to factual findings and legal

determinations of the state courts, with federal habeas

corpus relief to be granted only if the state court

adjudication

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court pr oceeding.

28 U.S.C. SS 2254(d)(1) and (2).2

In Williams, the Supreme Court held that under the

"contrary to" prong of 2254(d)(1), the writ may issue if the

state court came to a legal conclusion opposite to that

reached by the Supreme Court, or if the state court decided

a case differently than the Supreme Court has on

"materially indistinguishable facts." W illiams, 529 U.S. at

412-413; see also Werts v. Vaughn , 228 F.3d 178, 196 (3d

Cir. 2000). The Court also held that under the latter prong

of 2254(d)(1), the writ may issue if the state court identified

the correct governing legal principle but unreasonably

applied that principle. Williams, 529 U.S. at 412-413. To

make such a finding, the habeas court must deter mine

"whether the state court's application of clearly established

federal law was objectively unreasonable." Id. at 409; see

also Ramdass v. Angelone, 120 S.Ct. 2113, 2120 (2000). As

we recognized in Werts, "the Supreme Court stressed that

an unreasonable application of federal law is different from

an incorrect application of such law and a federal habeas

court may not grant relief unless that court determines that

a state court's incorrect or erroneous application of clearly

_________________________________________________________________

2. Factual findings of the state courts ar e presumed correct and it is

the

petitioner's burden to rebut the pr esumption by clear and convincing

evidence. 28 U.S.C. S 2254(e)(1). Factualfindings are not at issue here.

14

established federal law was also unreasonable." Werts, 228

F.3d at 196. Dunn challenges the state court's adjudication

only under the latter prong of 2254(d)(1) --"unreasonable

application" -- and our analysis will be r estricted to

whether the state court unreasonably applied clearly

established federal law.

Before we can determine whether ther e was, in fact, an

objectively unreasonable application of clearly established

federal law, we must identify the appropriate Supreme

Court precedent. Williams, 529 U.S. at 412-413; see also

Werts, 228 F.3d 178 (looking dir ectly to Supreme Court

precedent on question of ineffective assistance of counsel

claim). The standards controlling adher ence to a plea

agreement were set forth long ago by the Supreme Court in

Santobello v. New York, 404 U.S. 257 (1971). In Santobello,

in exchange for the defendant's plea of guilty, the

prosecutor agreed to make no sentencing r ecommendation.

At sentencing, however, a new prosecutor (apparently

ignorant of the first prosecutor's pr omise) recommended the

maximum one-year sentence. Defense counsel objected to

this recommendation and sought an adjour nment. The

sentencing judge denied that request and stated that he

was not at all influenced by the prosecutor's

recommendation. The Court then imposed the maximum

one-year, recommended term. On appeal, the conviction

was affirmed.

The Supreme Court vacated the judgment and r emanded

the case. The Court held that a guilty 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 261-262. The Court further held

that

[t]his phase of the process of criminal justice, and the

adjudicative element inherent in accepting a plea of

guilty, must be attended by safeguards to insur e the

defendant what is reasonably due in the

circumstances. Those circumstances will vary, but a

constant factor is that when a plea rests in any

significant degree on a promise or agr eement of the

prosecutor, so that it can be said to be part of the

15

inducement or consideration, such promise must be

fulfilled.

Id. at 262.3 The inadvertence of the breach, the Court held,

did not "lessen its impact" and, even absent prejudice at

sentencing, "the interests of justice and appropriate

recognition of the duties of the prosecution in relation to

promises made in the negotiation of pleas of guilty will be

best served by remanding the case to the state courts for

further consideration." Id. at 262-263.

Thus, in Santobello, the Supreme Court clearly

established that a prosecutor may enter into a plea

agreement but, after doing so, must fulfill the promises

contained therein. If the prosecutor fails to do so, whether

purposefully or inadvertently, that breach must be

remedied regardless of whether the defendant was

prejudiced thereby.4 Under the limited review we are

permitted under the AEDPA, we must decide whether the

prosecutor breached the plea agreement and whether the

state court's adjudication to the contrary was an

unreasonable application of Santobello. As we have already

suggested, we answer each of these questions in the

affirmative.

_________________________________________________________________

3. This Court has, of course, followed Santobello when called upon to

review federal convictions. See, e.g., United States v. Nolan-Cooper, 155

F.3d 221, 236 (3d Cir. 1998)("Because the defendant, by entering into

the plea, surrenders a number of her constitutional rights, `courts are

compelled to scrutinize closely the promise made by the government in

order to determine whether it has been performed.' ")(quoting United

States v. Hayes, 946 F.2d 230, 233 (3d Cir. 1991)); United States v.

Moscahlaidis, 868 F.2d 1357, 1361 (3d Cir . 1989)(recognizing that

Santobello requires a prosecutor to keep his promises).

4. In United States v. Benchimol, 471 U.S. 453 (1985) (per curiam), the

Court held that, unless agreed to by the pr osecutor, an agreement to

recommend a particular sentence under Rule 11 of the Federal Rules of

Criminal Procedure did not requir e the prosecutor to make his

recommendation "enthusiastically" or explain the reasons for his

recommendation. Id. at 455-456. The allegations here, however, focus

not on a less than enthusiastic recommendation or a failure to explain

the reasons for the recommendation, but on the fact that the promised

recommendation was not forthcoming.

16

When a criminal defendant claims that the gover nment

breached its plea agreement, the first step is to define what

the government agreed to do. To appreciate the parameters

of the Commonwealth's agreement, one must first

understand the sentencing scheme in Pennsylvania. Unlike

the federal sentencing scheme under which a defendant is

sentenced to a fixed number of months in prison, in

Pennsylvania, a defendant sentenced to confinement must

be sentenced to both a minimum and maximum sentence.

42 Pa.C.S.A. S 9756(a) and (b); Stewart v. Pennsylvania Bd.

of Probation and Parole, 714 A.2d 502, 505-506 (Pa.

Commw. Ct. 1998) (describing the sentencing scheme as

doling out indefinite/indeterminate sentences with a

minimum and maximum term); Commonwealth v. Barziyk,

629 A.2d 211, 215 (Pa. Super. Ct. 1997); Commonwealth v.

Cain, 637 A.2d 656, 659 (Pa. Super. Ct. 1994). To

determine the minimum sentence, a court consults

Pennsylvania's sentencing guidelines, which include a

matrix to determine a mitigated range, standar d range and

aggravated range for the minimum sentence. Coss v.

Lackawanna County District Atty., 94-CV-1481, 2000 WL

1372871, *5, and n.6 (M.D. Pa., Aug. 23, 2000);

Commonwealth v. Adams, 694 A.2d 353, 354 (Pa. Super.

Ct. 1997). The standard range designated in the sentencing

guidelines is the standard range for the minimum sentence.

204 Pa. Code S 303.11 and 303.16 (setting forth ranges of

minimum sentences); Commonwealth v. Pittman, 737 A.2d

272, 274 (Pa. Super. Ct. 1999) (describing the guidelines as

setting forth the "legal minimum period of incar ceration");

Adams, 694 A.2d at 354 (referring to the guidelines for the

minimum sentence); Commonwealth v. Decker, 640 A.2d

1321, 1323 (Pa. Super. Ct. 1994). The maximum is set by

statute and the minimum sentence cannot exceed half of

the maximum sentence imposed. 42 Pa.C.S.A. S 9756(b);

Cain, 637 A.2d at 659. The parties agree that the standard

range for Dunn's minimum sentence was 36-60 months.

Although the plea agreement in this case was not written,

it was distilled many times; indeed, the Commonwealth

does not dispute that it agreed to recommend that Dunn's

minimum sentence be in the standard range of minimum

sentences, i.e., 36-60 months. Over and over again, that

obligation was articulated: "The Commonwealth is

17

recommending a minimum in this case on Count 1 within

the standard range, standard guidelines range, but that is

not binding on the Court"; "There will be a recommendation

of a sentence of a minimum which would be in the

standard range;" "The Commonwealth has r ecommended,

but it is not binding on the Court, that on the char ge of

aggravated assault that the sentence be -- that the

minimum sentence be in the standard range of sentencing.

. ."; "The Commonwealth also indicated that they would

recommend a minimum sentence in the standar d range,

although this was not binding on the Court. In this

instance, the range would be 36 to 60 months. So it was

the Commonwealth's recommendation that the minimum

sentence be in that range, . . ." A462-464, A389.

Parenthetically, and contrary to Dunn's contentions, the

Commonwealth did not agree to recommend the minimum

sentence of 36 months or a minimum sentence at the lower

end of the standard range.

Dunn argues that the prosecutor failed to recommend

what she had agreed to recommend but, rather, asked the

court to impose a "lengthy" -- a "considerable" -- sentence.

He further argues that this breach was exacerbated by the

remainder of the prosecutor's comments which made an

end-run around her obligation with refer ence to the

promised recommendation. In response, the

Commonwealth argues there was no br each because

"lengthy" described, albeit not explicitly, the agreed-upon

minimum sentence of 36 to 60 months and the pr osecutor's

request for such a sentence did not convey to the Court

that she sought a longer sentence.

We disagree. Dunn bargained for the recommendation of

a minimum sentence within the standard range of

minimums -- nothing more, nothing less. As a result, he

could reasonably expect that the prosecutor would argue

for a minimum sentence as low as three years or as high as

five years. What he could not expect was that the

prosecutor would seek a minimum sentence beyondfive

years. This is precisely what the prosecutor did, sliding

down a slippery slope on her way to denouncing her legal

obligation.

18

Instead of recommending even a five year minimum term,

the prosecutor chose to use the vague, yet loaded, words

"lengthy term of incarceration" and"a penalty that's

considerable" -- a term of imprisonment she described as

necessary to get Dunn's attention. She did not qualify this

request in any respect and did not even mention the words

"minimum" or "standard range." Mor eover, a "lengthy term

of incarceration" -- "a penalty that's considerable" -- could

surely have meant something very differ ent from (and, from

Dunn's point of view, much worse than) the pr omised

recommendation of a minimum sentence of between 36 to

60 months, particularly where Dunn was exposed to a

sentence of ten to twenty years. Lest there be any doubt,

the import of what the prosecutor was seeking was clear

when she said:

I can't ask you to impose the maximum possible

penalty. That would go outside of what my initial

recommendation was. And I think if I would have a

chance to sit down and have a drink of water and calm

myself, maybe I would even think that to ask for the

absolute maximum is unjust. But I believe this was

reckless conduct. . . .

A145. By referring to her obligation under the plea

agreement as only her "initial recommendation;" expressing

her personal reservations about that agr eement and asking

for a "lengthy" -- a "considerable"-- sentence; and stating

that if given more time to reflect she might think that the

"absolute" maximum would be unjust, thus implying that

at that point in time the maximum was just, the prosecutor

unequivocally communicated to the Court that she

disavowed her earlier recommendation and now believed, as

Detective Schwartz had testified, that something up to the

maximum sentence allowable by law would be an

appropriate sentence. The totality of the pr osecutor's

remarks compels the conclusion that her failur e to

affirmatively recommend a minimum sentence within the

standard range had but one purpose: to influence the Court

to impose a minimum sentence far greater thanfive years.

The fact that, at least as of the outset of the sentencing

hearing, the Court was aware of what the pr osecutor was

obliged to recommend does not excuse the Commonwealth's

19

failure to fulfill that obligation. W e can, of course, imagine

sentencings at which articulating a recommended sentence

in haec verba would be redundant or , for some other

reason, unnecessary and, therefore, not required as long as

it can fairly be said that the sentencing court had the

recommendation before it when sentence was imposed.

Here, however, it appears that what transpired at the

sentencing hearing prompted the prosecutor's impassioned

statement, a statement which not only did not articulate or

even hint at the promised recommendation, but was

inconsistent with that promised recommendation.

Although Santobello did not establish a bright-line test by

which to determine when a prosecutor has reneged on a

plea agreement, the Court made clear that, at a minimum,

when a prosecutor makes a promise which induced, at

least in significant part, a guilty plea -- or , as here, a plea

of nolo contendere -- the pr osecutor's promise must be

fulfilled. Because no conclusion can be drawn other than

that this prosecutor did not, in Santobello 's word, convey

even the "essence" of that promise, she breached both the

letter and the spirit of her agreement. W e conclude that the

Superior Court's determination that the pr osecutor did not

breach the plea agreement involved, in the words of the

AEDPA, "an unreasonable application of[ ] clearly

established Federal law, as determined by the Supreme

Court of the United States." 28 U.S.C. S 2254(d)(1).5

III.

Having found that the state court unreasonably applied

Santobello, we must consider what, if any, r emedy is

appropriate. The Commonwealth, rigid in its position that it

did not breach the plea agreement, has not discussed the

issue of remedy. For his part, Dunn argues that the

harmless error rule does not apply and we are "duty

bound" under Santobello to grant him r elief regardless of

_________________________________________________________________

5. We note that the Superior Court found that a sentence in the standard

range of 36-60 months was "lengthy" and that, in any event, the

prosecutor "qualified" her call for a lengthy term by indicating that her

initial recommendation was "still intact." The prosecutor, of course,

indicated no such thing.

20

whether the sentencing court was influenced by the

Commonwealth's breach. We agree that Santobello requires

relief, as does this Court's precedent.

The Supreme Court made quite clear that it did not need

to "reach the question of whether the sentencing judge

would or would not have been influenced" by the terms of

the plea agreement had the agreement not been breached.

Santobello, 404 U.S. at 262. Rather, the Court concluded

that

the interests of justice and appropriate r ecognition of

the duties of the prosecution in relation to promises

made in the negotiation of pleas of guilty will be best

served by remanding the case to the state courts for

further consideration. The ultimate relief to which

petitioner is entitled we leave to the discr etion of the

state court, which is in a better position to decide

whether the circumstances of this case r equire only

that there be specific performance of the agreement on

the plea, in which case petitioner should be

resentenced by a different judge, or whether, in the

view of the state court, the circumstances r equire

granting the relief sought by petitioner , i.e., the

opportunity to withdraw his plea of guilty.

Santobello, 404 U.S. at 262-263. Indeed, the Supreme

Court's decision to remand the case despite the sentencing

court's explicit statement that it had not been influenced by

the prosecutor's recommendation leaves little room to argue

that the harmless error rule applies.

The rationale for this is evident. By entering into a plea

agreement, a defendant voluntarily and knowingly

surrenders a plethora of constitutional rights in exchange

for a commitment by the prosecutor to do or not do certain

things. When the prosecutor breaches that agreement, he

or she violates the defendant's due process rights by

implicating the consideration and voluntariness upon

which that plea was based. Mabry v. Johnson, 467 U.S.

504, 509 (1984)("It follows that when the pr osecution

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

21

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.' ") (quoting Santobello, 404 U.S. at 262). Especially

when the prosecutor's promise is not binding on the court,

the defendant does not bargain for a specific sentence but

for a lock on what the prosecutor can do and say at

sentencing. That the sentencing court does not follow the

prosecutor's lead is irrelevant. A defendant's constitutional

rights are violated when a prosecutor r eneges on the

consideration underlying the defendant's plea of guilty.

United States v. Camarillo-Tello, ___ F.3d ___, 2001 WL 6711

(9th Cir., Jan. 3, 2001).

Breach of a plea agreement by a pr osecutor also strikes

at public confidence in the fair administration of justice

and, in turn, the integrity of our criminal justice system in

which a vast number of cases are resolved by plea

agreement. United States v. Van Thournout, 100 F.3d 590,

594 (8th Cir. 1996) (noting that this is a concern for federal

prosecutions) (citing to United States v. Carter, 454 F.2d

426, 428 (4th Cir. 1972)); State of W est Virginia v. Palmer,

524 S.E.2d 661, 665 (S. Ct. W. Va. 1999) (noting same

concern with respect to state prosecutions). Thus, we have

held that "the doctrine that the government must adhere to

its bargain in the plea agreement is so fundamental that

even though the government's breach is inadvertent and

the breach probably did not influence the judge in the

sentence imposed, due process and equity r equire that the

sentence be vacated." United States v. Hayes , 946 F.2d 230,

233 (3d Cir.1991) (internal quotations omitted); see also

Williams, 529 U.S. at 375 (although not all constitutional

errors warrant issuance of the writ, "err ors that undermine

confidence in the fundamental fairness of the state

adjudication certainly justify the issuance of the federal

writ."); United States v. Nolan-Cooper, 155 F.3d 221, 236

(3d Cir. 1998) (breach of plea agr eement requires remedy

regardless of harmless error rule).

When we find, on review, that a federal pr osecutor has

breached a plea agreement, we generally leave the remedy

to the discretion of the district court. United States v.

Badaracco, 954 F.2d 928, 941 (3d Cir . 1992) (noting general

22

rule but ordering resentencing because the defendant had

already served a considerable portion of his sentence);

United States v. Moschahlaidis, 868 F.2d 1357, 1361, 1363

(3d Cir. 1989) (regardless of whether the sentencing court

was affected by the breach, the general rule requires

sentence be vacated and the case remanded for

consideration of proper remedy); United States v. Martin,

788 F.2d 184, 187 (3d Cir. 1986) (same); see also United

States v. Mondragon, 228 F.3d 978, 981 (9th Cir. 2000)

(holding the "harmless error rule does not apply when the

government breaches a plea agreement."); United States v.

Canada, 960 F.2d 263 (1st Cir. 1992) (recognizing general

rule under Santobello).

It is equally appropriate when we find that a state

prosecutor has breached a plea agr eement to refer the issue

of remedy to the state court. Thus, this Court will not

decide whether Dunn should be resentenced under the plea

agreement or given the opportunity to withdraw his plea.

Indeed, as the Santobello Court long ago observed, it is best

left to the state court to decide what remedy is appropriate.

Santobello, 404 U.S. at 263. That this case r eaches us

under section 2254 also informs our decision to give the

state court an opportunity to determine whether Dunn

should be resentenced or permitted to go to trial. Coss v.

Lackawanna County District Attorney, 204 F .3d 453 (3d

Cir.) (en banc) (noting general rule of leaving proper remedy

to the state in habeas petition), cert. granted, 121 S. Ct.

297 (2000).6

_________________________________________________________________

6. Before the state courts, Dunn sought the opportunity to withdraw his

plea and proceed to trial. At oral argument before us, however, it was

suggested that because he has served more thanfive years (the most

severe minimum sentence under the agreed-upon standard range), we

should resentence him to time served. Wholly aside from the legal

implications of that suggestion, the circumstances of this case cry out

for state court involvement. For example, contrary to Dunn's suggestion,

we do not know whether the sentencing court would have imposed a

minimum sentence not to exceed five years absent a breach. Nor can we

find that Dunn would have been released upon completing whatever

minimum term might have been imposed because, under Pennsylvania

law, a defendant who completes his or her minimum term is entitled

only to be considered for parole. Accor dingly, we decline Dunn's

invitation to resentence him to time served, although the state court may

certainly deem it appropriate to do so. Mor eover, given that Dunn has

vacillated on the relief he seeks, remand will give him an opportunity to

make an informed, counseled request.

23

The dissent concludes, based solely on principles of

comity and federalism, that the harmless err or rule applies

to Santobello violations; indeed, the dissent seemingly

suggests, without pausing to distinguish between

constitutional violations which are trial err ors and those

which are structural defects, that the har mless error rule

applies across the board on habeas r eview. We are not

nearly as sure as the dissent that the har mless error rule

applies where a prosecutor has broken a promise made in

exchange for the agreement to plead guilty and has thereby

undercut the basis on which the defendant waived the host

of constitutional rights implicit in his or her plea, and we

are certainly sure that the harmless error rule does not

apply across the board.

The Supreme Court and this Court have, on dir ect

appeal, regularly treated Santobello errors as akin to

structural defects not susceptible of harmless error

analysis. Santobello, 404 U.S. at 262-263 (r emanding even

though sentencing court stated it was not influenced by the

erroneous recommendation); Nolan-Cooper, 155 F.3d at 236

(citing general rule that remand is necessary once

Santobello error is found); Badaracco , 954 F.2d at 941

(same); Hayes, 946 F.2d at 233 (same). Nothing in recent

Supreme Court caselaw, or in cases decided by this Court,

has called this conclusion into question on dir ect or habeas

review; the Commonwealth has not questioned that

conclusion here; and the parties have not raised, much less

briefed, the issue. Moreover, we do not worry, as the

dissent seems to worry, that our conclusion vis-a-vis a

Santobello violation would somehow impact much less set

a far-reaching precedent for all guilty pleas, or "wall off over

ninety percent of state criminal convictions fr om harmless-

error analysis," Dissent at 36; indeed, we do not take issue

with the dissent's conclusion that the vast majority of

errors alleged in the guilty plea process would be subject to

the harmless error rule. In any event, we need not reach

the issue, if issue it be, of whether a Santobello violation is

a structural or trial error for even if har mless error would

apply to a Santobello violation, we would not find the error

harmless here where, we note, the pr osecutor did much

24

more than simply, as the dissent suggests, call for a

"lengthy" sentence.7

One final note. We indicated above both our belief that

the prosecutor's comments were incited by Dunn's refusal

to accept responsibility for his actions and our appreciation

of the difficulties this sentencing presented. Nonetheless,

we reiterate that Santobello does not allow a prosecutor to

unilaterally repudiate his or her promises because honoring

them becomes distasteful.

IV.

For the reasons stated above, we will r everse the

judgment of the District Court denying the petition for a

writ of habeas corpus, and remand with instructions that it

issue a writ of habeas corpus ordering Dunn's r elease if the

state court does not remedy the breach within 90 days of

our judgment.

_________________________________________________________________

7. The dissent speculates that the reason Dunn did not pursue a direct

appeal was because, if he were to have pr evailed on appeal such that his

plea was vacated, he could have been exposed to less favorable plea

terms or even potential homicide charges. From this, the dissent

concludes that we are "rewarding" Dunn's "tactical use of federal habeas

relief." Dissent at 33. But as the various opinions in Santobello

underscore, Dunn could have sought specific performance of the

agreement instead of vacation of his plea with his preference, as Justice

Douglas put it, accorded "considerable, if not controlling, weight."

Santobello, 404 U.S. at 267. We see no"tactical" advantage here from

having waited; indeed, given the result we r each, there may well have

been a disadvantage.

25

COWEN, Circuit Judge, dissenting :

John Dunn repeatedly struck his two-month old son

causing massive, permanent brain damage. Despite the

child's crying and the struggling noises he made

throughout the remainder of the day, Dunn did nothing to

seek medical care; and when his wife retur ned home from

work around 5:30 p.m., and insisted on calling a doctor,

Dunn vehemently objected and pitched a bottle thr ough a

window, shattering it. Not until his wife thr eatened to call

a lawyer did he agree to drive her and the child to the

doctor. Once prosecuted, Dunn decided to plead nolo

contendere to one count of aggravated assault and one

count of endangerment of the welfare of a child. In return

for his plea the state prosecutor dropped two other charges,

agreed to five years of probation for the charge of

endangering the welfare of a child, and pr omised to

recommend a minimum sentence in the standar d range for

the charge of aggravated assault.

Granting Dunn habeas relief, the majority holds that the

state courts unreasonably applied Supreme Court

precedent in evaluating the prosecutor's compliance with

the plea agreement at sentencing. The majority also

suggests that harmless-error analysis does not apply to

habeas review of an alleged breach of a plea agreement.

I respectfully disagree with both conclusions, and believe

that the majority's opinion may have far-r eaching

consequences. According to data collected by the U.S.

Sentencing Commission, pleas accounted for 94.6%

of all federal convictions in fiscal year 1999, 93.6%

in 1998, 93.2% in 1997, 91.7% in 1996, and 91.9%

in 1995. See U.S. Sentencing Commission, Datafile,

http://www.ussc.gov. And similar figures undoubtedly

apply to state convictions. One recent study, for example,

found that less than 5% of state felony criminal cases were

disposed of through jury trial. Jeffr ey Abramson, We, The

Jury 252 (2000). What this data demonstrates is that a

habeas decision affecting pleas and sentencing will have

vastly greater impact than any influencing pr ocedure at

trial.

26

I

The breach of the plea agreement occurr ed, according to

the majority, when the prosecutor made a r ecommendation

for the charge of aggravated assault. T o evaluate what the

prosecutor promised for that count, it is important to

understand that in Pennsylvania a convicted defendant

receives a minimum and a maximum sentence. See Majority

Op. at 17 (citing 42 Pa.C.S.A. S 9756(a) and (b); Stewart v.

Pennsylvania Bd. of Probation and Par ole, 714 A.2d 502,

505-06 (Pa. Commw. Ct. 1998)). The minimum sentence is

usually established by applying sentencing guidelines,

which allow the sentencing judge to select the defendant's

minimum sentence from one of three ranges--a mitigated,

standard, or aggravated range. A defendant's maximum

sentence, by contrast, is limited only by the statutory

maximum.

In Dunn's case the standard range for the minimum

sentence was 36-to-60 months, while the statutory

maximum sentence was 20 years. On appeal Dunn'sfirst

argument is that what the prosecutor actually agreed to do

was recommend a single sentence at the bottom end of the

standard range, i.e., the lowest or minimum sentence in the

standard range, which is a sentence of 36 months. But as

the majority concludes, this argument r ests on an incorrect

interpretation of the plea agreement. Defendants do not

receive a single determinate sentence under Pennsylvania

law, and it is clear from the recor d that all that the

prosecutor agreed to do was "recommend a minimum

sentence in the standard range." App. at 87. What Dunn's

argument neglects is that the term "minimum" does not

refer to the low end of the standard range but to the first

part of the defendant's sentence--the minimum sentence.

In other words, if the prosecutor had r ecommended a

particular minimum sentence near the top of the standard

range, that would have been entirely consistent with the

plea agreement.

Against this legal background we must evaluate Dunn's

second objection, the argument that the majority accepts.

Dunn maintains that the prosecutor impr operly requested

a "lengthy term of incarceration" or "a penalty that's

considerable." App. at 145-46. Like the pr osecutor, the

27

state courts, and the District Court, I believe that these

remarks were consistent with the plea agr eement. The

majority acknowledges that the plea agreement did not

require the prosecutor to advocate for leniency within the

standard range, and there is no clearly established

Supreme Court precedent for finding that the prosecutor

had an implied duty to do so. Cf. United States v.

Benchimol, 471 U.S. 453, 105 S.Ct. 2103 (1985) (per

curiam) (rejecting that a plea agreement included an

implied duty to make a recommendation enthusiastically).

The prosecutor was entitled to urge, even vigorously, that

the judge sentence at the high end of the range, and as

both Dunn and the majority implicitly recognize, nothing

limited the prosecutor from presenting compelling evidence

to convince the judge to do so. The majority opinion also

makes clear that the sentencing judge and the pr osecutor

repeatedly reviewed the prosecutor's obligation to

recommend that the minimum sentence fall in the standard

range, and the sentencing judge understood this point.

Moreover, the plea agreement imposed no limitation at all

about the maximum sentence.

When the state trial judge (the same judge as it happens

who sentenced Dunn) rejected Dunn's petition for post-

conviction collateral relief, the judge wr ote that the

prosecutor's request for a "lengthy" sentence was

"consistent with the plea agreement in that the standard

range of sentencing for Defendant's aggravated assault

charge extended to a minimum of five (5) years of

incarceration." App. at 300. The state inter mediate

appellate court similarly reasoned that the pr osecutor's

remarks were consistent with the plea agr eement because

the standard sentence range of three-to-five years for the

minimum sentence "can be viewed as `lengthy' in and of

itself." App. at 273. Expanding on this r easoning, the

District Court noted in denying Dunn's habeas petition that

in 1993, the year Dunn was sentenced, the mean minimum

sentence in Pennsylvania for aggravated assault was 13.2

months and the mean maximum was 35.6 months. Thus,

any minimum sentence in the standard range of 36-to-60

months, the District Court reasoned, "would, against these

averages, be `lengthy.' " App. at 51 n.1.

28

Because Dunn's petition is governed by the 1996 AEDPA

amendments to the federal habeas statute, we do not

review a state court's legal determinations under a de novo

standard. See Williams v. Taylor , 529 U.S. 362, 402-13,

120 S.Ct. 1495, 1518-23 (2000); Werts v. Vaughn, 228 F.3d

178, 196-97 (3d Cir. 2000). Federal courts do not exercise

the same general supervisory powers over state courts that

federal appellate courts do over federal district courts. We

cannot grant habeas relief unless the state-court decision is

"contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States." 28 U.S.C.

S 2254(d)(1).

In Williams the Supreme Court devised separate legal

standards for the "contrary to" and "unreasonable

application of " clauses. The majority implies that it is

confining itself to the "unreasonable application" standard

because Dunn only challenged the state-court decision

under that provision. See Majority Op. at 15. But in fact,

Dunn's brief makes no such distinction between the two

standards and instead states, "Whether the government

violated the plea agreement is a question of law and review

is plenary." Appellant's brief at 22.

The deferential "unreasonable application" standard

controls "if the state court identifies the correct governing

legal rule from [the Supreme] Court's cases but

unreasonably applies it to the facts of the particular state

prisoner's case." Williams, 529 U.S. at 407, 120 S.Ct. at

1520. In some cases there may be some doubt about

whether the "contrary to" or "unreasonable application"

clause applies, see, e.g., Hameen v. State of Delaware, 212

F.3d 226, 242 (3d Cir. 2000), but her e the state courts

understood that a prosecutor is obliged to adhere to

promises in a plea agreement. See Mabry v. Johnson, 467

U.S. 504, 509, 104 S.Ct. 2543, 2547 (1984); Santobello v.

New York, 404 U.S. 257, 92 S.Ct. 495 (1971). Because the

state courts understood the controlling legal rule and the

only question is whether the courts correctly applied that

rule to these facts, there is no doubt that the"unreasonable

application standard" applies. "[A] run-of-the-mill state-

court decision applying the correct legal rule from our cases

29

to the facts of a prisoner's case would not fit comfortably

within S 2254(d)(1)'s `contrary to' clause." Williams, 529

U.S. at 406, 120 S.Ct. at 1520.

The Supreme Court has emphasized that "an

unreasonable application of federal law is different from an

incorrect application of federal law." Williams, 529 U.S. at

412, 120 S.Ct. at 1522 (emphasis in original). The majority

must conclude, therefore, that even though the prosecutor

was entitled to advocate against leniency, and even though

the prosecutor and the state judge had r epeatedly reviewed

and affirmed the exact requirements of the plea agreement,

the state courts were not merely incorr ect in finding that

the term "lengthy" could refer to the top of the standard

range, they were objectively unreasonable. Given the

context of this case and that the term "lengthy" is relative,

I cannot agree. Three hours, for example, is a long time for

a movie but not for the flu. Likewise, just as we could

properly say that a person had a "lengthy" hospital stay

when he stayed ten out of a possible one-to-ten days, so too

for speaking of the lengthy end of a range of 36-to-60

months of prison. Even in absolute terms, ther e is nothing

improper about calling a five-year sentence"lengthy."

The prosecutor's request for a lengthy sentence did

telegraph her desire that the court not be lenient, but what

the majority ignores in complaining about this effect is that

under the terms of the plea agreement she was legitimately

entitled to say that she thought the judge should not be

lenient either within the standard range or in determining

a maximum sentence.

II

The majority also maintains that harmless-err or doctrine

does not apply to a prosecutor's breach of a plea agreement

when a state prisoner brings a habeas petition. The central

problem with the majority's analysis is that it fails to

distinguish the doctrine's application on dir ect review from

that on habeas. In 1993 the Supreme Court held that there

is a distinct harmless-error standar d that applies in federal

habeas cases and imposes a "less onerous" burden for

upholding the state conviction. Brecht v. Abrahamson, 507

30

U.S. 619, 637, 113 S.Ct. 1710,1722 (1993). And that lower

standard applies regardless of whether the state court

conducted a harmless-error review. Hassine v. Zimmerman,

160 F.3d 941, 950-53 (3d Cir. 1998) (collecting cases).1

The Supreme Court noted in Brecht that there are

numerous instances where the Court distinguishes between

the relief available on direct review and that for habeas. For

example, "Although new rules always have r etroactive

application to criminal cases on direct r eview, we have held

that they seldom have retroactive application to criminal

cases on federal habeas." Brecht, 507 U.S. at 634, 113 S.Ct.

at 1720 (citations omitted). Another example is that the

Fourth Amendment's exclusionary rule cannot be invoked

in habeas. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037

(1976). Similarly, defendants have a right to counsel for

direct appeals, Douglas v. California , 372 U.S. 353, 355, 83

S.Ct. 814, 815 (1963), but not for collateral attacks on the

conviction. Pennsylvania v. Finley, 481 U.S. 551, 555-56,

107 S.Ct. 1990, 1993 (1987). After noting the many ways

that relief differs under habeas--dif ferences that have only

expanded since Brecht with the passage of the AEDPA--the

Supreme Court explained: "The reason most frequently

advanced in our cases for distinguishing between dir ect

and collateral review is the State's inter est in the finality of

convictions that have survived direct r eview within the state

court system. We have also spoke of comity and federalism

. . . . `Federal intrusions into state criminal trials frustrate

both the States' sovereign power to punish of fenders and

their good-faith attempts to honor constitutional rights.' "

Brecht, 507 U.S. at 635, 113 S.Ct. at 1720.

_________________________________________________________________

1. The majority states that the parties "have not raised, much less

briefed the issue" of harmless error . Majority Op. at 24. But the

Commonwealth did maintain at oral argument that any putative error

was harmless, and in any event we have discr etion to consider harmless

error sua sponte. See, e.g., United States v. Faulks, 201 F.3d 208, 213

(3d Cir. 2000); United States v. McLaughlin, 126 F.3d 130, 135 (3d Cir.

1997); United States v. Rose, 104 F.3d 1408, 1414 (1st Cir. 1997);

Horsley v. Alabama, 45 F.3d 1486, 1492 n. 10 (11th Cir. 1995); United

States v. Langston, 970 F.2d 692, 704 n.9 (10th Cir. 1992); Lufkins v.

Leapley, 965 F.2d 1477, 1481 (8th Cir . 1992); United States v. Pryce, 938

F.2d 1343, 1348 (D.C. Cir. 1991); United States v. Giovannetti, 928 F.2d

225, 227 (7th Cir. 1991).

31

When a constitutional challenge is focused on a state

court's evaluation of sentencing and the alleged err or is

harmless, these concerns with federalism and comity

should be at their height. Habeas corpus, the Supr eme

Court has repeatedly said, is an "extraor dinary remedy"

reserved for defendants who were "grievously wronged" by

the criminal proceedings. Calderon v. Coleman, 525 U.S.

141, 146, 119 S.Ct. 500, 503 (1998) (per curiam) (quoting

Brecht, 507 U.S. at 633-34, 113 S.Ct. at 1719; Fay v. Noia,

372 U.S. 391, 440-41, 83 S.Ct. 822, 850 (1963)). The

Supreme Court has explained that a federal court

disregards these concerns with federalism and comity when

it sets aside a state-court sentence without deter mining

that the error had a "substantial and injurious effect."

Calderon, 525 U.S. at 146, 119 S.Ct. at 503. "The social

costs of retrial or resentencing ar e significant, and the

attendant difficulties are acute . . . wher e the original

sentencing hearing took place . . . [long ago]. The State is

not to be put to this arduous task based on mer e

speculation that the defendant was prejudiced. . . ." Id.

(citing Brecht, 507 U.S. at 637, 113 S.Ct. at 1721).

Relief in this case is unwarranted. The state courts were

reasonable to find that the prosecutor's use of the term

"lengthy" was consistent with the plea agr eement given that

the prosecutor retained the right to advocate for the top

end of the standard range; the state sentencing judge made

abundantly clear that he understood the limitations

included in the plea agreement; and when sentencing Dunn

to a minimum sentence of seven-and-a-half years and a

maximum sentence of twenty years, the judge str essed a

factor not emphasized by the prosecutor . The judge

explained that he was "extremely troubled" by the fact that

Dunn did nothing to seek medical advice throughout the

day, despite the obvious signs of injury to his infant son.

App. at 452. Worse, Dunn threatened his wife by breaking

a window when she attempted to seek medical advice and

would not drive her and the child to a doctor until she said

she would call a lawyer. As the majority opinion details, the

evidence at sentencing against Dunn was overwhelming.

Dunn's wife gave the following description of her son's

condition at the sentencing hearing:

32

He vomits all the time, he's in tremendous pain, he has

to take a lot of medications. It's usually accompanied

with vomiting. It can damage his liver if it's not

monitored properly. He constantly has to have his

blood level drawn. He's constantly--he has mucous

and he can't clear his own mucous. He is in danger of

aspirating if he inhales it all back into his lungs, which

can cause pneumonia.

App. at 394. She added that her son was fed thr ough a

tube into his stomach, would cry for three hours at a time,

and had no motor skills at fifteen months, the infant's age

at sentencing. No one disputed that the child's life

expectancy was no more than two-to-seven years, and that

he would require nearly constant medical care during that

time. It also should be emphasized that the sour ce of harm

the majority must rely upon is the differ ence in effect

between what they say was impermissible--the prosecutor's

use of the terms "lengthy" and "considerable"--and the

word choice that undeniably would have been per missible--

a request by the prosecution for the highest minimum

sentence in the standard range.

The majority's analysis is also rewarding exactly the sort

of tactical use of federal habeas relief that the Supreme

Court has sought to prevent. See, e.g., Brecht, 507 U.S. at

635, 113 S.Ct. at 1720-21 (citing Engle v. Isaac , 456 U.S.

107, 127, 102 S.Ct. 1558, 1571 (1982); Rose v. Lundy, 455

U.S. 509, 547, 102 S.Ct. 1198, 1218 (1982)). At Dunn's

state post-conviction hearing, the trial judge engaged in the

following colloquy with the lawyer who repr esented Dunn at

the original plea and sentencing hearings:

The Court: There had been plea negotiations over

some period of time; is that correct?

Mr. Barr: Absolutely.

The Court: And the plea negotiations or the plea that

was previously offered, were there better

terms in your estimation?

Mr. Barr: Yes. The longer this case went on, the

worse the terms became because the

child's condition became worse.

33

The Court: I see. In other words--the condition of that

child was what, Mr. Barr?

Mr. Barr: Very, very serious. He had very serious

brain injury.

App. at 332-33. In his findings of fact, the trial judge

concluded that after Dunn was charged, he"was open to

the possibility of a guilty plea and plea negotiations were

conducted over a lengthy period of time. The ter ms of the

agreement offered by the Commonwealth, however, became

less attractive as the child's conditioned [sic] worsened.

Attorney Barr believed that a plea was in Defendant's best

interest as Defendant could face homicide char ges if the

child were to die." App. at 296-97. It is a fair inference that

the reason Dunn declined to file a dir ect appeal is that even

if the appellate court agreed there had been a breach of the

plea agreement (and later events show that the court

thought there was no breach), the chance that the plea

would have been vacated exposed Dunn to potential

homicide charges at worst, and less favorable plea terms at

best.

And contrary to the majority's suggestion in footnote 7,

Dunn could not have been sure that if he appealed and the

child died, he would be able to avoid having his plea

vacated, for Santobello does not give a criminal defendant

the right to choose between resentencing or having the plea

vacated. Chief Justice Burger's majority opinion concluded,

"The ultimate relief to which petitioner is entitled we leave

to the discretion of the state court. . . ." Santobello, 404

U.S. at 263, 92 S.Ct. 499. The separate opinions in

Santobello do not provide authority otherwise. Neither

Justice Douglas's opinion, which no other Justice joined,

nor Justice Marshall's opinion, which attracted two other

votes, provides a basis for rejecting the majority opinion's

rule that the lower court retains discr etion about the choice

of relief.

The majority's reason for concluding that har mless error

does not apply is that in Santobello--a direct-review case--

the Supreme Court said that it would remand to the state

courts even though the state sentencing judge said that the

prosecutor's breach of the plea agr eement did not affect the

34

sentence he imposed. Relying exclusively on this aspect of

Santobello this circuit has continued to say in cases

involving direct review that harmless error does not apply

to a prosecutor's breach of a plea agr eement. See United

States v. Nolan-Cooper, 155 F.3d 221, 236 (3d Cir. 1998)

(citing United States v. Hayes, 946 F .2d 230, 233 (3d Cir.

1991) (citing Santobello)).

We have never, however, addr essed whether Santobello's

conclusion about harmless error should be expanded to

apply in habeas and in the teeth of the Supr eme Court's

more recent decision, Brecht . Indeed, in the thirty years

since Santobello was decided, there has been an avalanche

of cases expanding harmless-error analysis to

constitutional errors occurring during all phases of criminal

trials and sentencing. See, e.g., Neder v. United States, 527

U.S. 1, 119 S.Ct. 1827 (1999) (jury instruction's omission

of materiality requirement, an offense element, was

harmless error); Yates v. Evatt, 500 U.S. 391, 111 S.Ct.

1884 (1991) (harmless error applied to mandatory

rebuttable presumption in jury instructions); Arizona v.

Fulminante, 499 U.S. 307, 306-09, 111 S.Ct. 1246, 1263-

64 (1991) (harmless error applied to coer ced confessions

that were admitted into evidence); Clemons v. Mississippi,

494 U.S. 738, 752-54, 110 S.Ct. 1441, 1450-51 (1990)

(applying harmless error to unconstitutionally overbroad

jury instructions at the sentencing stage of a capital case);

Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792 (1988)

(admission of evidence at the sentencing stage of a capital

case in violation of the Sixth Amendment Counsel Clause);

Carella v. California, 491 U.S. 263, 266, 109 S.Ct. 2419,

2421 (1989) (jury instructions containing an err oneous

conclusive presumption); Pope v. Illinois , 481 U.S. 497,

501-504, 107 S.Ct. 1918, 1921-23 (1987) (jury instruction

misstating an element of the offense); Rose v. Clark, 478

U.S. 570, 106 S.Ct. 3101 (1986) (jury instructions

containing erroneous rebuttable pr esumption); Crane v.

Kentucky, 476 U.S. 683, 691, 106 S.Ct. 2142, 2147 (1986)

(erroneous exclusion of defendant's testimony about the

circumstances of his confession); Delawar e v. Van Arsdall,

475 U.S. 673, 106 S.Ct. 1431 (1986) (unconstitutional

restriction on defendant's right to cross-examine a witness);

Rushen v. Spain, 464 U.S. 114, 117-18, and n.2, 104 S.Ct.

35

453, 454-55, and n.2 (1983) (denial of defendant's right to

be present at trial); United States v. Hasting, 461 U.S. 499,

103 S.Ct. 1974 (1983) (unconstitutional comment on

defendant's silence at trial in violation of Fifth Amendment);

Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049 (1982)

(unconstitutional statute forbidding trial court fr om giving

jury instruction on lesser included offense in a capital

case); Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088

(1979) (failure to instruct jury on presumption of

innocence); Moore v. Illinois, 434 U.S. 220, 232, 98 S.Ct.

458, 466 (1977) (evidence admitted in violation of Sixth

Amendment); Brown v. United States, 411 U.S. 223, 231-

32, 93 S.Ct. 1565, 1570-71 (1973) (admission of out-of-

court statement of nontestifying codefendant in violation of

Sixth Amendment); Milton v. Wainwright , 407 U.S. 371, 92

S.Ct. 2174 (1972) (confession unconstitutionally obtained).

The majority implies that harmless-err or analysis should

not apply to a breach of a plea agreement because, the

majority asserts, such a violation is structural err or. The

majority is correct that the "Kotteakos standard [invoked in

Brecht] did not apply to `structural defects in the

constitution of the trial mechanism, which defy analysis by

`harmless-error' standards.' " California v. Roy, 519 U.S. 2,

5, 117 S.Ct. 337, 338 (1996) (per curiam) (quoting Brecht,

507 U.S. at 629, 113 S.Ct. at 1717). But the tr ouble with

the majority's argument is that the Supr eme Court has

never said violations of Santobello ar e structural error, and

there is a "strong presumption" against finding that a given

type of constitutional violation is structural. Rose v. Clark,

478 U.S. at 579, 106 S.Ct. at 3106. Twice in r ecent years

the Supreme Court has listed the "very limited class of

cases" where the error is deemed structural, see Neder, 527

U.S. at 8, 119 S.Ct. at 1833; Johnson v. United States, 520

U.S. 461, 468, 117 S.Ct. 1544, 1549 (1997), and pointedly

a breach of a plea agreement in violation of Santobello was

not included.

Nor is it plausible that the Supreme Court would now

decide to expand the class of structural err ors, and wall off

over ninety percent of state criminal convictions from

harmless-error analysis on habeas r eview, particularly

since pleas are not likely to concern cases involving

36

innocent defendants. The majority retorts that no far-

reaching precedent is at stake because state prisoners who

challenge their guilty pleas may face harmless error for

claims other than an alleged breach of a plea agreement.

But what viable constitutional claims besides br each of a

plea agreement are available to a habeas petitioner who

pleaded guilty in state court? In any event, the majority

cannot obscure the impact of barring har mless-error

analysis in habeas review of plea agreements by pointing

out that the doctrine might apply to some other claims. The

fact remains that over ninety percent of defendants enter

guilty pleas, and as a result barring har mless-error

analysis from habeas review of alleged br eaches of plea

agreements will have a much bigger impact than barring

harmless-error analysis from any rule affecting trials.

Removing breaches of plea agreements fr om harmless

error may make sense on direct review, where the relevant

evidence of the defendant's guilt has not gr own as stale,

and where comity and federalism are not at stake, but not

so for habeas review. By the time a federal court considers

a habeas petition, victims who want to get on with their

lives may no longer be willing to testify at sentencing, and

if the plea is vacated, evidence may have disappear ed or

grown stale, making it harder for the state to prove what

was once an easy case. And regardless of whether the plea

is vacated or resentencing ordered, granting relief forces a

direct intrusion on state courts' authority even though the

outcome of the state proceeding was not af fected.

Finality serves important interests and is most

compelling when there was no harm fr om the alleged error.

The majority's opinion reaches the wrong r esult in this case

and, given the vast number of pleas in state court, creates

precedent that will multiply that error many times in future

cases. I dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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