Amicus Curiae Brief — Alabama v. Smith

OCTOBER TERM, 1988

STATE OF ALABAMA, PETITIONER

Vv.

JAMES LEWIS SMITH

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALABAMA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

WILLIAM C. BRYSON

Acting Solicitor General

EDWARD S.G, DENNIS, JR.

Assistant Attorney General

LAWRENCE S. ROBBINS

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

“4p

QUESTION PRESENTED

[he respondent in this case entered a guilty plea and was

sentenced. Subsequently, he withdrew his guilty plea, went

to trial, and was convicted. The trial court then sentenced

respondent to a longer term of imprisonment than the

court had imposed following respondent’s guilty plea. The

question presented is whether that sentence was “vindic-

tive” under the principles articulated in this Court’s deci

sion in North Carolina v. Pearce, 395 U.S. 711 (1969)

a

TABLE OF CONTENTS

Interest of the United States .......................0055..

EE I

EEE ne

Argument:

A defendant who withdraws his guilty plea after he has

been sentenced may constitutionally be subjected to an

increased sentence following his conviction at trial ......

A.

Vindictiveness may be inferred only in those special

contexts in which there is a realistic possibility that

the defendant’s sentence has been increased to

penalize him for exercising a legal right ............

B. Vindictiveness should not be presumed where a

defendant withdraws a guilty plea after he has been

sentenced, and is given an increased sentence xfter he

NT eo 66 bce css neeccisescs

C. Even if a presumption of vindictiveness were ap-

propriate, that presumption was easily Overcome in

PE MCe eee divecuascscewnecsvcevecesces

Ne i ecw cb eee seccsescocvceses

TABLE OF AUTHORITIES

Cases:

Blackledge v. Allison, 431 U.S. 63 (1977) ..............

Blackledge v. Perry, 417 U.S. 21 (1974) ........... 7, 10,

Blackmon v. Wainwright, 608 F.2d 183 (Sth Cir. 1979),

cert. denied, 449 U.S. 852 (1980) ...................

Bordenkircher v. Hayes, 434 U.S. 357 (1978) ...........

Brady v. United States, 397 U.S. 742 (1970) ............

Chaffin v. Stynchcombe, 412 U.S. 17 (1973) ...........

Colten v. Kentucky, 407 U.S. 104(1972)...............

Corbitt v. New Jersey, 439 U.S. 212 (1978) .............

Gollaher v. United States, 419 F.2d 520 (9th Cir.), cert.

PUES UUPEUUMIOD 6 coe cece cn sececees:

Hitchcock v. Wainwright, 770 F.2d 1514 (11th Cir. 1985),

ee

(111)

13

IV

Cases — Continued: Page

McCarthy v. United States, 394 U.S. 459 (1969) ......... 14

McKenzie v. Risley, 842 F.2d 1525 (9th Cir. 1988) ....... 13

North Carolina v. Alford, 400 U.S. 25 (1970) ........... 14

North Carolina v. Pearce, 395 U.S. 711 (1969) .......... 1, 6,

7, 9, 10, 14

Roberts v. United States, 445 U.S. 552 (1980) ........... 19

Santobello v. New York, 404 U.S. 257 (1971) ........... 20

Texas v. McCullough, 475 U.S. 134 (1986) ............. 8

14, 23, 24

Thompson v. Lynaugh, 821 F.2d 1054 (Sth Cir. 1987),

cert. denied, No. 87-5052 (July 7, 1987) .............. 13

United States v. Anderson, 514 F.2d 583 (7th Cir.

SPE nn\ 60 hondenhécecucnee tant eeenkeaedes eta 15

United States v. Carter, 804 F.2d 508 (9th Cir. 1986) ..13, 17, 19

United States v. Cunningham, 529 F.2d 884 (6th Cir.

At terete ret ere ee fare meee 17

United States v. Derrick, 519 F.2d 1 (6th Cir. 1975) ...... 17, 19

United States v. Fountain, 777 F.2d 351 (7th Cir. 1985),

cert. denied, 475 U.S. 1029 (1986) .................. 14

United States v. Gilliss, 645 F.2d 1269 (8th Cir. 1981) .... 13, 14

United States v. Goodwin, 457 U.S. 368 (1982) ......... 13, 22

United States v. Grayson, 438 U.S. 41 (1978) ........... 16

United States v. Hutchings, 757 F.2d 11 (2d Cir.), cert.

Cee. Gs Ok Ce CD 6.0 0:0 bo eivc cu sisccdcsecs 19

United States v. Johnson, 537 F.2d 1170 (4th Cir.

rye rer err Prey eer 15

United States v. Johnson, 546 F.2d 1225 (Sth Cir.

rer re pre rary PE errs 14

United States v. Rines, 453 F.2d 878 (3d Cir. 1971) ...... 15

United States v. Sampol, 636 F.2d 621 (1V.C. Cir. 1980) .. 19

United States v. Stockwell, 472 F.2d 1186 (9th Cir.), cer..

Bamiad, GEE U.S, GE ee 600 5 0:00 cccsd ec ecssaccces 19

United States v. Townsend, 796 F.2d 158 (6th Cir.

SD d-)-oo Weiss 0464 RARee Resa nee aees teks eeeenes 13, 15

United States v. Trott, 779 F.2d 912 (3d Cir. 1985) ...... 14

United States v. Underwood, 588 F.2d 1073 (Sth Cir.

SER osc wis cok cabbies ede eae was 17

United States ex rel. Williams v. McMann, 436 F.2d 103

(2d Cir. 1970), cert. denied, 402 U.S. 914 (1971) ...... 15, 21

Constitution, statute and rules: Page

U.S. Const. Amend. V (Due Process Clause) ........... 9, 10

BP Wiss MEER oc ccc cvececccvvvcvcececccececer 13

Fed. R. Crim. P.:

ee ee. fhe 8 ef. Sle ee 14

EE, os 6b 'nc.0¥ubutleecéb ae cc bebe. 15

Miscellaneous:

American Bar Association Project on Minimum Stand-

ards for Criminal Justice, Pleas of Guilty (Approved

ED caso eSs cee kbbbeduunGkebdviste<ckuha: 19

Becker, Crime and Punishment: An Economic Analysis,

76 J. Pol. Econ. 169 (1968) ...................0.... 19

Bentham, Principles of Penal Law, Pt. Il, Bk. 1, ch. 6,

in | Betham’s Works 401 (Bowring ed. 1843) ......... 19

J. Bond, Plea Bargaining and Guilty Pleas (1983) ....... 15, 18

United States Sentencing Comm’n, Sentencing Guide-

lines and Policy Statements (1987-1988) ............. 1-2,

16, 19, 20

Se a cFodewebuukunde cece oee veces 2, 20

In the Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-333

STATE OF ALABAMA, PETITIONER

JAMES LEWIs SMITH

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALABAMA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case involves the application of the presumption of

“vindictiveness” under North Carolina vy. Pearce, 395 U.S.

711 (1969), a presumption that applies equally to federal

criminal cases. The question presented is whether, under

Pearce, a defendant who withdraws his guilty plea and is

convicted after trial may be given a greater sentence than

the one he received following his guilty plea. That question

arises routinely in the federal system. Moreover, under the

recently promulgat.d Sentencing Guidelines, federal

judges are entitled to impose a more lenient sentence on a

defendant who, by pleading guilty, has demonstrated an

“acceptance of responsibility” tor his offense. United

(1)

2

States Sentencing Comm’n, Sentencing Guidelines and

Policy Statements § 3E1.1(a), (c), Commentary (1988).

The United States therefore has a continuing interest in the

question whether Pearce forbids a court from sentencing a

defendant who does not plead guilty more harshly than

one who does.

STATEMENT

1. In November 1985, respondent was charged, in

three separate indictments, with first degree sodomy, first

degree rape, and first degree burglary. All three charges

arose from respondent’s September 14, 1985, assault on

Vickie Hurst. C.A. App. 415-423. On January 6. 1986,

respondent entered a guilty plea to the rape and burglary

charges. In his allocution, respondent acknowledged that

at about 1:30 a.m. on the date in question, he went to Ms.

Hurst’s house, cut through a screened window, and,

holding a knife, had “ha[d] sex” with his victim. In ex-

change for respondent’s plea to the two charges, the State

moved to dismiss the sodomy charge. The trial court

granted that motion and accepted respondent’s guilty plea.

1/6/86 and 1/17/86 Tr. R-3 to R-4, R-14 to R-20.

On January 17, 1986, respondent appeared before the

trial court for sentencing. The court had already received

presentence reports concerning the offense (J.A. 27, 37),

which stated that respondent had “broke[n] into the

residence of Vickie Hurst * * * while [she] and her three

children were at home” and had forced Ms. Hurst “to

engage in oral intercourse * * * [and] sexual intercourse

with him.” The sentencing court also heard from Ms.

Hurst, respondent’s victim, who advised the court of her

fear that if respondent “[got] out, he [would] do it again.”

The trial court imposed concurrent terms of 30 years’ im-

prisonment on each charge. 1/6/86 and 1/17/86 Tr. R-20

to R-28.

3

Respondent thereafter moved to withdraw his guilty

plea, contending that he had not entered it knowingly or

voluntarily. The trial court denied that motion, but the

Alabama Court of Criminal Appeals reversed and

remanded. It held that respondent had not been accurately

apprised of the penalties associated with the crimes to

which he had pleaded guilty. Pet. App. 2; Smith v. State,

494 So. 2d 182 (1986).

2. On remand, the State moved to reinstate the

previously dismissed charge of first degree sodomy. The

trial court granted that motion, and respondent proceeded

to trial on all three original charges. Pet. App. 2.

At trial, Ms. Hurst testified that on September 13, 1985,

after putting her three children to bed across the hall, she

was in her room watching television. In the early morning

hours, she heard a noise in the hallway. She looked up and

saw a man, later identified as the respondent, with a mask

pulled over his face. The man was dressed only in his

underwear, and he was carrying a kitchen knife with a

shiny blade and a wooden handle. Respondent ran toward

Ms. Hurst with the knife, put his hand over her mouth,

pulled her down onto the bed, and removed her

underwear. Holding the knife to Ms. Hurst’s chest, and

later placing it beside her on the bed, respondent then

forced his victim to have intercourse with him at least four

times and “in different positions.” In addition, respondent

forced Ms. Hurst to perform oral sex on him and to permit

him to do the same to her.! In all, respondent’s attack on

' Ms. Hurst explained that each time that respondent moved to a

new position, she would ask him not to rape her again. Responde »t

told her he was not raping her, but was only “doing what [he] always

wanted to do.” C.A. App. R-136 to R-137.

4

his victim lasted more than one hour. C.A. App. R-126 to

R-146.?

The State also offered respondent’s post-arrest state-

ment, in which respondent admitted many of the details of

the offenses. For example, in his statement respondent

acknowledged that he had entered Ms. Hurst’s apartment,

while dressed in his underwear, with a cap pulled over his

face, and carrying a knife. He also admitted that he had

gotten into Ms. Hurst’s bed and that he had had inter-

course with her. Respondent asserted in this statement,

however, that Ms. Hurst did not resist having intercourse

with him; and although he acknowledged that he had tried

to have oral sex as well, he claimed that he had acceded to

Ms. Hurst’s refusal to do so. Respondent stated that he

had gone to Ms. Hurst’s apartment because he had “felt

empty” and “wanted to be loved.” C.A. App. R-197 to

R-203.

Respondent took the stand at trial and claimed that he

had been in bed with his girlfriend at the time the rape

took place (C.A. App. R-283 to R-284). He explained that

he had offered the confession to the police only “because

the two officers that questioned [him had] set themselves

up as judge and jury and [had] offered [him] no self

defense, legal representation” (id. at R-303). Respondent

characterized his statements to the police as “running off

at the mouth” (id. at R-301) and “just babble” (id. at

R-305).

2 Ms. Hurst also testified that she had recognized respondent, who

was one of her neighbors, from the sound of his voice during the at-

tack (C.A. App. R-143). Confirming the point, the evidence showed

that four days after the offense, Ms. Hurst selected responden ’s voice

from a “voice lineup,” in which five persons, including respondent,

were required to speak certain of the words that, according to Ms.

Hurst, had been spoken by the assailant (id. at R-156 to R-157, R-190

to R-193).

Respondent was convicted on all three charges (C.A.

App. R-393), and on August 22, 1986, he appeared a sec-

ond time for sentencing before the trial court. The court

imposed concurrent terms of life imprisonment on the

burglary and sodomy convictions and a consecutive term

of 150 years’ imprisonment on the rape conviction (id. at

R-396, R-403 to R-404). The trial court explained that at

the time the court sentenced respondent on his guilty plea,

respondent had told the court only “[his] side of the story”

(Pet. App. 28). “[NJow,” the court stated, “the court has

had a trial and heard all of the evidence,” including the

“testimony which consisted of raping the victim at least

five times,” and evidence showing respondent’s “mental

outlook on it and [his] position during the trial” (id. at

28-30). Although the court emphasized that it was not in-

creasing respondent’s sentence based “on the fact that [he]

was successful on [his] appeal” (id. at 28), it concluded —

that it was “proper to increase the sentence beyond that

which was given to [respondent] on the plea bargain” (id.

at 30).

3. The Court of Criminal Appeals affirmed respond-

ent’s convictions, as well as his life sentences for sodomy

and burglary, while remanding the rape conviction for

resentencing. The Alabama Supreme Court thereafter

granted respondent’s request for review of the burglary

sentence, and it reversed and remanded by a divided vote

(Pet. App. 1-14). The court held that “ ‘there can be no

> In response to defense counsel’s claim that the sentences were ex-

cessive (C.A. App. R-409), the trial court observed that at the time of

the initial sentencing it had had “no knowledge that [respondent] raped

the woman five times” and “sodomized her twice * * * with the children

across the hall, with the knife basically at her throat at all times * * * at

1:00 or 2:00 a.m. with a ski mask on” (id. at R-410 to R-411). The court

stated that, in retrospect, the sentence that it had imposed the first time

“may not have been harsh enough” (id. at R-411).

6

increase in a sentence in a criminal case after the sentence

is imposed’ ” (Pet. App. 5 (citation omitted)). To increase

a sentence under those circumstances, the court reasoned,

would “ ‘den[y] the prisoner the protection of his original

sentence as a condition to the right of his appealing his

conviction or exercising his post-conviction remedies’ ”

(ibid. (citation omitted)). The court acknowledged that in

North Carolina v. Pearce, 395 U.S. 711 (1969), this Court

held that “ ‘{a] trial judge is not constitutionally precluded

* * * from imposing a new sentence, whether greater or

less than the original sentence, in the light of events subse-

quent to the first trial that may have thrown new light

upon the defendant’s “life, health, habits, conduct, and

mental and moral propensities” ’ ” (Pet. App. 5-6 (quoting

395 U.S. at 723)). But the court construed the language in

Pearce to authorize an increased sentence only when it is

justified by “events subsequent to the first trial” (id. at 7).

Because the trial court had increased respondent’s sentence

based on the evidence adduced at the trial, the court set

aside respondent’s sentence on the burglary conviction.

Justice Maddox dissented (Pet. App. 8-14). In his view,

“the principles of North Carolina v. Pearce * * * (do} not

apply” where the original sentence follows a voluntary

guilty plea (id. at 9-10). Justice Maddox explained that a

defendant “should not be allowed to receive sentence con-

cessions in return for a guilty plea and then, after a suc-

cessful attack on that plea, bind the State to its original

sentencing bargain if he is later convicted after a trial” (id.

at 14). Were the law otherwise, he stated, a defendant

“could go to trial and chance an acquittal knowing he

could receive a sentence no harsher than he was originally

given” (ibid.).*

* The Alabama Supreme Court subsequently denied the State’s ap-

plication for rehearing (Pet. App. 15). Justice Maddox again dissented

(id. at 15-27). He explained (id. at 26) that “[a] defendant is free to

SUMMARY OF ARGUMENT

In North Carolina v. Pearce, 395 U.S. 711 (1969), this

Court held that before a trial court may increase a

sentence following a criminal defendant’s exercise of a

post-conviction right of review, the increased penalty must

be justified by a showing of legitimate, non-vindictive

motivating factors. Relying on Pearce, the Alabama

Supreme Court held that a trial court may not impose on a

defendant who was convicted at trial a harsher sentence

than the one the court imposed after the defendant pleaded

guilty. That holding extends Pearce to a precinct in which it

was never meant to apply.

A. This Court has made clear that the presumption of

vindictiveness articulated in Pearce must be confined to

the special context in which that case arose. The Court has

explained that “the Due Process Clause is not offended by

all possibilities of increased punishment upon retrial after

appeal, but only those that pose a realistic likelihood of

‘vindictiveness.’ ” Blackledge v. Perry, 417 U.S. 21, 27

(1974). Thus, the Court has always restricted the applica-

tion of Pearce “to areas where its ‘objectives are thought

most efficaciously served.’” Texas v. McCullough, 475

U.S. 134, 138 (1986) (citation omitted).

B. For three reasons, a reviewing court should not

presume vindictiveness in the context presented by this

case.

First, a trial on the merits will usually afford the trial

court a more complete account of the crime than is pro-

vided by a simple plea allocution. For that reason, a

court that has heard all the evidence at a full trial on the

accept or reject the [plea] offer of the State. Once it is rejected,

however, the defendant cannot complain that the denial of the

benefits of the offer he rejected constitutes punishment or evidences

judicial vindictiveness.”

8

merits will often be in a better position to impose an ap-

propriate sentence than it was after a guilty plea. The

court’s decision to impose a stiffer sentence after a full

trial is thus likely to be the product of better in.orma-

tion—as it was in this case—and not the product of

judicial vindictiveness.

Second, a defendant who has pleaded guilty, and who

has thereby acknowledged his responsibility for an of-

fense, may well deserve a more lenient sentence. This

Court and others have routinely approved more favorable

sentencing treatment for defendants whose guilty pleas

reflect contrition and personal accountability. By con-

trast, a defendant who has gone to trial may well not have

earned specially lenient sentencing treatment, particularly

if the defendant—in the judgment of the sentencing

court — gives false testimony at trial. A difference in treat-

ment between a defendant who has pleaded guilty and one

who has gone to trial is therefore entirely legitimate and

does not warrant a presumption of vindictiveness.

Finally, these two reasons suggest a third, more general

one: a presumption of vindictiveness in this setting is fun-

damentally incompatible with the accepted role of plea

bargaining in the criminal justice system. Under the

Alabama Supreme Court’s view, a defendant who has

been sentenced based on a plea bargain may withdraw

from that plea and proceed to trial, running no risk that he

may be sentenced more severely than he was the first time.

Such an application of the rule in Pearce would entirely

remove a defendant’s incentive to enter into binding plea

agreements. .

C. Even if a presumption of vindictiveness were ap-

propriate in this case, the trial court’s findings easily over-

come that presumption. The trial court explained that it

imposed a harsher sentence because the evidence at trial

showed respondent’s crime to be far more serious than the

9

court had previously supposed. The Alabama Supreme

Court held (Pet. App. 4) that the trial court did not rely on

an “event[] subsequent to the [respondent’s] first convic-

tion” and that its findings therefore did not satisfy the

burden imposed by Pearce. That conclusion, however, is

flatly inconsistent with this Court’s decision in Texas v.

McCullough, 475 U.S. at 141-144. In that case, the Court

upheld a heavier sentence following a second trial, where

that sentence was based on additional facts about the

underlying offense that emerged, for the first time, at the

second trial.

ARGUMENT

A DEFENDANT WHO WITHDRAWS HIS GUILTY PLEA

AFTER HE HAS BEEN SENTENCED MAY CONSTITU-

TIONALLY BE SUBJECTED TO AN INCREASED

SENTENCE FOLLOWING HIS CONVICTION AT TRIAL

A. Vindictiveness May Be Inferred Only In Those Special Con-

texts In Which There Is A Realistic Possibility That The

Defendant's Sentence Has Been Increased To Penalize Him

For Exercising A Legal Right

1. In North Carolina v. Pearce, 395 U.S. 711 (1969),

this Court reviewed the actions of state trial judges who

had increased two defendants’ sentences after the defend-

ants successfully invoked post-conviction review pro-

cedures and obtained reversals of their convictions. The

Court concluded that the Due Process Clause limits the

imposition of harsher sentences on retrial after a suc-

cessful appeal. In one of the cases, the Court found it “in-

escapable” that the trial judge was “punishing [the defend-

ant] for having exercised his post-conviction right of

review” (id. at 726); in the other case, no “reason or

justification” was suggested for the increased sentence

“beyond the naked power to impose it” (ibid.). In analyz-

ing the enhanced sentences in those cases, the Court ex-

plained that imposing a more severe sentence “for the ex-

10

plicit purpose of punishing the defendant for his having

succeeded in getting his original conviction set aside”

would violate the Due Process Clause (id. at 723-724). The

Court noted, however, that the “existence of a retaliatory

motivation” would be “difficult to prove in any individual

case” (id. at 725 n.20). In view of the clear hazard that vin-

dictiveness motivated the sentences before it, and the dif-

ficulty in obtaining reliable proof on that issue, the Court

adopted a special prophylactic rule (id. at 726):

In order to assure the absence of such a motivation,

we have concluded that whenever a judge imposes a

more severe sentence upon a defendant after a new

trial, the reasons for his doing so must affirmatively

appear. Those reasons must be based upon objective

information concerning identifiable conduct on the

part of the defendant occurring after the time of the

Original sentencing proceeding.

In Blackledge v. Perry, 417 U.S. 21 (1974), this Court

adopted a similar prophylactic rule, to guard against vin-

dictiveness by the prosecutor at the post-conviction stage.

In that case the defendant sought a trial de novo in a state

superior court following his initial misdemeanor convic-

tion. The prosecutor responded immediately to the exer-

cise of that post-conviction right by obtaining a felony in-

dictment, which resulted in a sentence after conviction of

five to seven years’ imprisonment. The Court concluded

that “the opportunities for vindictiveness in this situation

are such as to impel the conclusion that due process of law

requires a rule analogous to that of the Pearce case.” Id. at

27. The Court reached that conclusion only after finding

that there was a “realistic likelihood of ‘vindictiveness,’ ”

because the “prosecutor clearly has a considerable stake in

discouraging convicted misdemeanants from appealing

and thus obtaining a trial de novo.” Ibid. In this context,

11

the Court ruled that “it was not constitutionally permissi-

ble for the State to respond to [the defendant’s]} invocation

of his statutory right to appeal by bringing a more serious

charge” (id. at 28-29), absent a showing that would dispel

the appearance of vindictiveness, such as a demonstration

“that it was impossible to proceed on the more serious

charge at the outset.” Jd. at 29 n.7.

2. While recognizing that a presumption of vindic-

tiveness is appropriate in settings such as those presented

in Pearce and Perry, the Court has made clear that the

presumption should not be applied outside the special con-

texts in which it was developed. The Court has therefore

refused to extend the presumption to cases in which it was

not likely that the increase in penalty exposure was trig-

gered by the exercise of a procedural right, or in which an

increase, even if triggered by the exercise of a procedural

right, serves a legitimate purpose apart from penalizing

the accused for exercising a procedural right.

In Colten v. Kentucky, 407 U.S. 104 (1972), for exam-

ple, this Court declined to extend the prophylactic sentenc-

ing rule prescribed in Pearce to a two-tier prosecution

system in which the defendant was first convicted in an in-

ferior court and then appealed to a court of general

jurisdiction for a trial de novo. The defendant claimed

that imposition of greater punishment for the same charge

following his appeal to the court of general jurisdiction

was a “vindictive” response to his decision to seek a post-

conviction remedy. This Court rejected that contention,

concluding that the sentencing system did not present

“hazards warranting the restraints called for in North

Carolina v. Pearce” (407 U.S. at 119). While the Court

recognized that Pearce prohibited the imposition of “a

more severe penalty after reconviction * *’* as purposeful

punishment for having successfully appealed,” it did not

believe that, in the situation before it, vindictive responses

12

would occur “with sufficient frequency to warrant the im-

position of a prophylactic rule” (id. at 116). The Court saw

no logical basis for adopting a presumption that the court

of general jurisdiction, which resentenced the defendant

following his trial de novo, would respond to the defend-

ant’s request for a trial de novo in a vindictive manner (id.

at 117).

Similarly, in Chaffin v. Stynchcombe, 412 U.S. 17

(1973), where a second jury imposed a more severe sen-

tence on a defendant upon retrial following reversal of his

original conviction, the Court refused to apply the pro-

phylactic rule announced in Pearce. The Court concluded

that the “hazard of vindictiveness” (id. at 25) is not present

when a new jury imposes sentence following reconviction.

While the Court recognized that a more severe sentence

would be impermissible if its “only objective * * * is to

discourage the exercise of constitutional rights” (id. at 33

n.20), it found that the “potential for such abuse of the

sentencing process by the jury is * * * de minimis, in a

properly controlled retrial” (id. at 26). In view of its con-

clusion that there was no “real threat of vindictiveness” in

the case before it (id. at 28), the Court dismissed the sug-

gestion that the risk of an enhancement of penalties after

the exercise of a procedural right imposes an improper

“chilling effect” on defendants (id. at 29-35). The Court

noted that the defendant at bar “was not himself ‘chilled’

in the exercise of his right to appeal,” and it expressed

doubt that “the ‘chill factor’ will often be a deterrent of

any significance” (id. at 33).

These cases make plain 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.’ ” Perry, 417 U.S. at

27. Accordingly, “[ljike other ‘judicially created means of

effectuating the rights secured by the [Constitution],’ ”

13

this Court has “restricted application of Pearce to areas

where its ‘objectives are thought most efficaciously

served.’ ” Texas v. McCullough, 475 U.S. 134, 138 (1986).

“Given the severity of [the] presumption * * *—which

may operate in the absence of any proof of an improper

motive and thus may block a legitimate response to

criminal conduct —the Court has [applied the presump-

tion} only in cases in which a reasonable likelihood of vin-

dictiveness exists.” United States v. Goodwin, 457 U.S.

368, 373 (1982). oe

B. Vindictiveness Should Not Be Presumed Where a Defendant

Withdraws A Guilty Plea After He Has Been Sentenced,

And Is Given an Increased Sentence After He Is Convicted

At Trial

When a defendant withdraws his guilty plea after

sentencing, and is thereafter convicted at trial, it is not

unusual for a trial court to determine that a heavier

sentence is warranted. For three related reasons, no

presumption of vindictiveness should attach to that deter-

mination. °

’ The federal courts of appeals have held with near uniformity that

a trial court may impose a harsher sentence on a defendant who has

withdrawn his guilty plea and has thereafter been convicted at trial.

See, e.g., McKenzie v. Risley, 842 F.2d 1525, 1536-1537 (9th Cir.

1988) (en banc); Thompson v. Lynaugh, 821 F.2d 1054, 1064-1065

(Sth Cir. 1987), cert. denied, No. 87-5052 (July 7, 1987); United States

v. Carter, 804 F.2d 508, 513-515 (9th Cir. 1986); United States v.

Townsend, 796 F.2d 158, 164 (6th Cir. 1986); Hitchcock v. Wain-

wright, 770 F.2d 1514, 1518-1520 (11th Cir. 1985), rev’d on other

grounds, 481 U.S. 393 (1987). As far as we can tell, the lone exception

is the Eighth Circuit’s decision in United States v. Gilliss, 645 F.2d

1269 (1981). The court in Gilliss held that a trial court could not

resentence a defendant whose guilty plea had been set aside in a

habeas corpus proceeding to a term of imprisonment that failed to

specify (as did the prior sentencing) that the defendant would be eligi-

ble for early parole under 18 U.S.C. 4205(b)(1). The court reasoned,

14

1. While a defendant’s guilty plea allocution may fur-

nish relatively few details about the underlying offense, a

trial on the merits often affords the sentencing court a

detailed picture of the crime and the defendant’s respon-

sibility for it. In taking a guilty plea in the federal system,

for example, Fed. R. Crim. P. 11(f) requires the trial court

to make “such inquiry as shall satisfy it that there is a fac-

tual basis for the plea.” See McCarthy v. United States,

394 U.S. 459, 467 (1969). That inquiry, however, need

only be “precise enough and sufficiently specific to show

that the accused’s conduct on the occasion involved was

within the ambit of that defined as criminal.” United

States v. Johnson, 546 F.2d 1225, 1226 (Sth Cir. 1977).

Accordingly, “Rule 11 does not mandate that the defend-

ant personally confirm every factual allegation in the in-

dictment” (United States v. Trott, 779 F.2d 912, 914 (3d

Cir. 1985)), and indeed an otherwise valid guilty plea may

be accepted even if the defendant during the colloquy

denies factual guilt (North Carolina v. Alford, 400 U.S. 25

(1970)). What is more, the trial court need not question the

defendant at length about his role in the offense; “[a] suf-

ficient factual basis can be found even when the court

engages in the most rudimentary questioning of the de-

fendant if the indictment and statement of the prosecu-

tion’s evidence are sufficiently specific to make clear to the

defendant exactly what is being admitted to” (United

States v. Fountain, 777 F.2d 351, 355 (7th Cir. 1985), cert.

denied, 475 U.S. 1029 (1986)).

in part, that a trial court may not alter a prior sentence based simply

on the fact that the trial on the merits has provided a more damaging

picture of the offense. See 645 F.2d at 1284 & n.34. As we explain

below (see pages 14-17, 23-24, infra), the Eighth Circuit’s reasoning

cannot be squared with the premises underlying North Carolina v.

Pearce, or, more specifically, with the explicit holding in Texas v. Mc-

Cullough, 475 U.S. 134 (1986).

15

Even when supplemented by a presentence report — con-

taining, in the federal system, “information about the

history of the defendant, including *** any cir-

cumstances affecting his behavior” (Fed. R. Crim. P.

32(c)(2)(A)) —a guilty plea allocution will seldom, if ever,

provide as detailed an account of the crime as would a trial

on the merits. The present case illustrates the point. The

trial court explained that at the time of respondent’s plea,

it knew of only “one sex act [that] took place” (C.A. App.

R-400). As a result of the trial, however, the court stated

that it had become “aware that five separate sex acts oc-

curred” (ibid.), including two acts of sodomy (id. at

R-140) and three acts of intercourse (id. at R-402), each of

which had been accompanied by armed threats on the vic-

tim’s life (ibid.). Indeed, in light of the trial testimony the

court suggested that the sentence following the guilty plea

“may not have been harsh enough” (id. at R-411).

In addition to presenting a more detailed account of the

crime generally, a trial on the merits will typically involve

charges that were dismissed as part of the prior plea

bargain and which were therefore not before the trial court

when it initially sentenced the defendant. The “federal

courts have generally held that a defendant who suc-

cessfully challenges his guilty plea may be reindicted on

the original charges, and if convicted, sentenced more

severely.” J. Bond, Plea Bargaining and Guilty Pleas,

§ 7.28(a), at 7-100 (1983) (footnote omitted).® In the pres-

ent case, for example, the State moved to dismiss the

® See, e.g., United States v. Townsend, 796 F.2d 158, 164 (6th Cir.

1986); United States v. Johnson, 537 F.2d 1170, 1174-1175 (4th Cir.

1976); United States v. Anderson, 514 F.2d 583, 587-588 (7th Cir.

1975); United States v. Rines, 453 F.2d 878, 880 (3d Cir. 1971); United

States ex rel. Williams v. McMann, 436 F.2d 103, 104-107 (2d Cir.

1970), cert. denied, 402 U.S. 914 (1971).

16

sodomy charge, as part of its plea bargain with respond-

ent. When respondent successfully withdrew from the plea

bargain, the sodomy charge was reinstated and tried to

conviction. The trial court was therefore in a position,

foliowing the trial, to take account of a serious charge that

was not before it when it previously sentenced respondent.

The sodomy charge not only justified a substantial

sentence wholly apart from the sentence imposed on the

other two charges, but it helped complete the picture of

the crime for the trial court and thus justified increased

sentences on the rape and burglary charges as well.

Moreover, where, as here, a defendant testifies at trial,

the trial on the merits will afford the sentencing court a

more extensive Opportunity to assess the defendart’s at-

titude toward his offense, and therefore the defendant’s

moral culpability and susceptibility to rehabilitation.

“(T]he trial judge’s ‘opportunity to observe the defendant,

particularly if he chose to take the stand in his defense, can

often provide useful insights into an appropriate disposi-

tion.’ ” United States v. Grayson, 438 U.S. 41, 50 (1978)

(citation omitted). For example, a trial court is lawfully

entitled to sentence a defendant more harshly if he has

testified falsely at trial. Jd. at 50-52; United States Sen-

tencing Comm’n, Sentencing Guidelines and Policy

Statements § 3C1.1, at 3.7 (1987). As this Court has noted,

“jt is proper — indeed, even necessary for the rational exer-

cise of discretion—to consider the defendant’s whole per-

son and personality, as manifested by his conduct at trial

and his testimony under oath, for whatever light those

may shed on the sentencing decision.” United States v.

Grayson, 438 U.S. at 53. The trial court in the present case

apparently exercised that discretion, explaining that it had

increased respondent’s sentences in part because of

respondent’s “mental outlook” on the crime and his “posi-

17

tion during the trial and what [he] said” (C.A. App.

R-402).

In short, a trial on the merits will typically afford the

sentencing court a more complete picture of the off-nse

and of the defendant’s responsibility for it. For that

reason, there is no basis for presuming that a harsher

sentence following a trial is the product of vindictiveness.

The more likely explanation is that the court has reached a

different, and better informed judgment about the ap-

propriate level of punishment, based on “the details,

flavor and impact upon victims of the offense as presented

at trial” (United States v. Carter, 804 F.2d 508, 514 (9th

Cir. 1986)). Accordingly, in this setting, the realistic

“hazard of vindictiveness * * * is de minimis” (Chaffin v.

Stynchcombe, 412 U.S. at 25-26), and the Pearce

presumption should not be applied.’

7 “Only after trial and a sentencing hearing has the trial court

learned all of the facts which might be considered for sentencing. On a

plea bargain, the defendant’s and prosecutor’s agreement forecloses

the necessity for such a detailed explanation.” Hitchcock v. Wain-

wright, 770 F.2d at 1519. See also United States v. Cunningham, 529

F.2d 884, 889 (6th Cir. 1976) (increased sentences following trial

reflect “the sentencing judge’s greater knowledge and better

understanding acquired after hearing the full disclosure of the facts at

the trial on the merits”). Cf. Blackmon v. Wainwright, 608 F.2d 183,

184 (Sth Cir. 1979), cert. denied, 449 U.S. 852 (1980) (increased

sentence following trial may reflect the fact that the trial court “had

the benefit of hearing all of the trial testimony and may have based the

sentence on the facts surrounding the robbery and the evidence of [the

defendant's} guilt”); United States v. Underwood, 588 F.2d 1073, 1078

(Sth Cir. 1979). As one court of appeals has summarized the point

(United States v. Derrick, 519 F.2d 1, 4 (6th Cir. 1975)):

{I]n a plea of guilty, the crime pleaded is understood only as

related in somewhat sterile fashion through the plea taking proc-

ess or through a printed narration in the pre-sentence report. The

sentencing following a trial upon the merits, on the other hand,

18

2. Beyond this, a defendant who elects to acknowledge

responsibility and plead guilty “demonstrates by his plea

that he is ready and willing to admit his crime and to enter

the correctional system in a frame of mind that affords

hope for success in rehabilitation over a shorter period of

time than might otherwise be necessary.” Brady v. United

States, 397 U.S. 742, 753 (1970). Such a defendant has

“taken the first and arguably essential step toward

rehabilitation and would therefore require less lengthy

confinement and treatment than a defendant similar in all

other respects but adamant in his protestations of in-

nocence.” J. Bond, Plea Bargaining and Guilty Pleas

§ 2.7(c), at 2-22 (1983). “It is almost axiomatic,” one court

has observed, “that the first step toward rehabilitation of

an offender is the offender’s recognition that he was at

fault * * *.” Gollaher v. United States, 419 F.2d 520, 530

(9th Cir.), cert. denied, 396 U.S. 960 (1969).

For that reason, this Court’s cases “unequivocally

recognize the constitutional propriety of extending lenien-

cy in exchange for a plea of guilty and of not extending

leniency to those who have not demonstated those at-

tributes on which leniency is based.” Corbitt v. New

Jersey, 439 U.S. 212, 224 (1978) (footnote omitted). Ac-

cord Brady, 397 U.S. at 753. The lower federal courts have

likewise held that “[a] genuine admission of guilt may pro-

perly result in a lighter sentence than would be ap-

sees the trial judge in possession not only of more of the detailed

facts of the offense itself, but of the flavor of the event and the

impact upon any victims. It is for that reason a more real and ac-

curate appraisal of the circumstances which brought the defend-

ant to the bar of justice, and almost inevitably this added

knowledge will affect the judge’s consideration of what penalty

appears most appropriate. This can, of course, work to the

benefit or the detriment of the defendant according to the degree

of culpability shown by the proofs.

19

propriate for an intransigent and unrepentent

malefactor.” United States v. Stockwell, 472 F.2d 1186,

1187 (9th Cir.), cert. denied, 411 U.S. 948 (1973). A trial

judge is therefore entitled “to take into account the dif-

ference in mental attitude between the defendant who ad-

mits his guilt and seeks to reform and the defendant who,

although proved guilty beyond a reasonable doubt, gives

no indication of his willingness to be rehabilitated.”

United States v. Derrick, 519 F.2d at 4. Thus, although

“(a]n accused may not be subjected to more severe punish-

ment for exercising his constitutional right to stand trial”

(United States v. Carter, 804 F.2d at 513; accord United

States v. Hutchings, 757 F.2d 11, 14 (2d Cir.), cert.

denied, 472 U.S. 1031 (1985)), a court may impose a

lighter sentence when it concludes, based on a defendant’s

guilty plea and allocution, that he has accepted respon-

sibility for the offense (see, e.g., United States v. Sampol,

636 F.2d 621, 678 (D.C. Cir. 1980)). See generally Roberts

v. United States, 445 U.S. 552 (1980).*

In the federal system, the Sentencing Guidelines ex-

plicitly approve that principle. Section 3E1.1(a) of the

Guidelines and the accompanying commentary provide

that although a defendant who pleads guilty is not en-

titled to a sentencing reduction “as a matter of right,” the

plea “may provide some evidence of the defendant’s ac-

ceptance of responsibility” and may therefore justify a

* See also American Bar Association Project on Minimum Stand-

ards for Criminal Justice, Pleas of Guilty § 1.8 and commentary at

36-52 (Approved Draft, 1968). In addition to reflecting a measure of

contrition, a plea of guilty also permits prompt and certain, and

therefore more effective, punishment. That, in turn, may further

justify a reduction in the severity of the punishment. See Becker,

Crime and Punishment: An Economic Analysis, 76 J. Pol. Econ. 169,

177-178 (1968); Bentham, Principles of Penal Law, Pt. Il, Bk. 1, ch.

6, in | Bentham’s Works 401 (Bowring ed. 1843).

20

reduction in the offense level on which the sentence will be

based. Sentencing Guidelines § 3E1.1.(a), (c), Commen-

tary at 3.21 (Jan. 1988). The Guidelines explain that “a

defendant who clearly demonstrates a recognition and af-

firmative acceptance of personal responsibility for the of-

fense * * * is appropriately given a lesser sentence than a

defendant who has not demonstrated sincere remorse.” Jd.

at 3.22.

Because a trial court may lawfully give a lesser sentence

to a defendant who pleads guilty, a reviewing court should

not presume vindictiveness simply because a trial court has

given a harsher sentence to a defendant who elects to go to

trial. The rule in Pearce was not designed to preclude

sentencing courts from taking into account a defendant’s

willingness to accept responsibility for his offense.

3. These first two principles suggest a third, more

general one: a presumption of vindictiveness in this con-

text is fundamentally incompatible with the accepted role

of plea bargaining in the criminal justice system.

“Whatever might be the situation in an ideal world, the

fact is that the guilty plea and the often concomitant plea

bargain are important components of this country’s

criminal justice system.” Blackledge v. Allison, 431 U.S.

63, 71 (1977). As this Court has repeatedly explained, the

“[d]isposition of charges after plea discussions is not only

an essential part of the [criminal justice] process but a

highly desirable part for many reasons.” Santobello v.

New York, 404 U.S. 257, 261 (1971). “For a defendant

who sees slight possibility of acquittal, the advantages of

pleading guilty and limiting the probable penalty are ob-

vious — his exposure is reduced, the correctional processes

can begin immediately, and the practical burdens of a trial

are eliminated. For the State there are also advan-

tages—the more promptly imposed punishment after an

admission of guilt may more effectively attain the objec-

21

tives of punishment; and with the avoidance of trial,

scarce judicial and prosecutorial resources are conserved

for those cases in which there is*substantial issue of the de-

fendant’s guilt or in which there is substantial doubt that

the State can sustain its burden of proof.” Brady v. United

States, 397 U.S. 742, 752 (1970).

The decision below is incompatible with a rational plea

bargaining system. As Justice Maddox explained in dis-

sent, under the majority’s view a defendant would be

“allowed to receive sentence concessions in return for a

guilty plea and then, after a successful attack on that plea,

bind the State to its original sentencing bargain if he is

later convicted after a trial” (Pet. App. 14). Such an ap-

proach “would encourage gamesmanship of a most offen-

sive nature” — what the Second Circuit has called “nothing

more than a ‘heads-I-win-tails-you-lose’ gamble.” United

States ex rel. Williams v. McMann, 436 F.2d 103, 106-107

(1970), cert. denied, 402 U.S. 914 (1971). The original

sentence would thereby become the defendant’s baseline,

and he could “go to trial and chance an acquittal knowing

he could receive a sentence no harsher than he was

originally given” (Pet. App. 14).

Nothing in this Court’s cases requires the plea bargain-

ing system to absorb such costs. To the contrary, the

Court has repeatedly held that a presumption of vindic-

tiveness is inappropriate where plea negotiations are in-

volved. Thus, in Bordenkircher v. Hayes, 434 U.S. 357

(1978), the Court held that it was permissible for the pros-

ecutor to threaten the defendant with increased charges if

the defendant did not plead guilty, and to follow up on

that threat when the defendant insisted on his right to

stand trial. At the pretrial stage of the prosecution in

which the prosecutor engaged in “give-and-take negotia-

tion common in plea bargaining” (id. at 362), the Court

found no element of improper “punishment or retaliation”

(id. at 363). The Court recognized that the prosecutor has

22

a legitimate interest at the bargaining table in persuading

the defendant “to forgo his right to plead not guilty” (id. at

364).

Similarly, in Corbitt v. New Jersey, 439 U.S. 212 (1978),

this Court upheld a state sentencing scheme that author-

ized more lenient sentences for defendants who pleaded

guilty in homicide cases. The Court reiterated that the

government has a “legitimate interest” (id. at 222) in en-

couraging guilty pleas and affirmed the “constitutional

propriety of extending leniency in exchange for a plea of

guilty and of not extending leniency to those who have not

demonstrated those attributes on which leniency is based”

(id. at 224). Since this differential penalty scheme served

“the interest of the State in efficient criminal procedure”

(id. at 220 n.9) and was not a “needless or arbitrary burden

on the [exercise of] constitutional rights” (id. at 223), the

Court found no occasion for a presumption of malice or

vindictiveness. See also United States v. Goodwin, 457

U.S. 368 (1982).

These cases make clear that the government has a

legitimate interest in encouraging guilty pleas by offering

favorable terms that it does not make available to defend-

ants who proceed to trial and are convicted. Just as the

government may legitimately make a better offer to de-

fendants who agree to plead guilty, it may also treat less

favorably (but nevertheless nonvindictively) those defend-

ants who are convicted at trial. The Pearce presumption

has no place in that calculus.

C. Even If A Presumption Of Vindictiveness Were Ap-

propriate, That Presumption Was Easily Overcome In This

Case

The trial court in this case offered a persuasive, explana-

tion, other than vindictiveness, for increasing respondent's

sentence on the burglary charge. It stated that “at the time

23

of the plea, [it] was aware * * * that only one sex act took

place”; after the trial, the court noted, it became “aware

that five separate sex acts occurred” (C.A. App. R-400).

The Alabama Supreme Court held (Pet. App. 4), however,

that respondent’s sentence could not be increased on that

basis. It reasoned that the trial court’s “subjective observa-

tions” gleaned from the trial did not constitute objective

“events subsequent to the [respondent’s] first conviction.”

Accordingly, it held that under the Pearce case the trial

court’s explanation did not overcome the presumption of

vindictiveness.

That is precisely the argument this Court rejected in

Texas v. McCullough, 475 U.S. 134 (1986). The defendant

in that case was convicted and sentenced by a jury to 20

years’ imprisonment. The trial court then granted the de-

fendant’s motion for a new trial, and defendant was again

convicted. This time, the defendant chose to be sentenced

by the court, which imposed a sentence of 50 years. In

revising the sentence, the court relied, in part, on certain

testimony, not presented at the first trial, which showed

that the defendant, rather than his accomplices, had

slashed the throat of the victim. This Court held that the

trial court’s findings had overcome any presumption under

Pearce. The Court acknowledged the language in Pearce

stating that the presumption of vindictiveness may be

rebutted with evidence of “ ‘conduct or events that oc-

curred subsequent to the original sentencing pro-

ceedings’” (id. at 141 (citation omitted)). It explained

(ibid.), however, that “(t}his language * * * was never in-

tended to describe exhaustively all of the possible cir-

cumstances in which a sentence increase could be

justified.” Instead, the Court stated, the Pearce presump-

tion may be overcome by any “ ‘objective information

* * * justifying the increased sentence’ ” (id. at 142 (cita-

tion omitted)). Applying that principle, the Court held

24

that the trial court’s findings—including, in particular,

“‘Ithhe testimony of *** two. witnesses directly

implicat[ing] the defendant in the commission of the

murder in question and show[ing] what part he played in

committing the offense’” (id. at 143 (citation

omitted))— were sufficient to rebut any possible presump-

tion of vindictiveness. :

The present case is controlled by McCullough. Here,

too, the trial court justified its increased sentences by

referring to “new evidence about the [crimes] that was not

presented” at the time of the guilty plea and was “hence

never made known to the sentencing” court the first time

around (475 U.S. at 136). Moreover, the trial court was

able to take into account after the trial the defendant’s at-

titude regarding the offense and his testimony in which he

offered a alibi defense and charged that the police had ob-

tained a false confession from him. Under the reasoning

of McCullough, the trial court’s findings amply rebutted

any possible inference of vindictiveness.

CONCLUSION

The judgment of the Supreme Court of Alabama should

be reversed.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

LAWRENCE S. ROBBINS

Assistant to the Solicitor General

FEBRUARY 1989

US GOVERNMENT PRINTING OFFICE 1989— 241.699 00114