# Amicus Curiae Brief — Alabama v. Smith

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 794

## Text

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 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0248%3A07. Public record. Not legal advice.