Blackledge v. Perry 8212 1660

Citation417 U.S. 21,40 L.Ed.2d 628,94 S.Ct. 2098
Decision Date20 May 1974
Docket NumberNo. 72,72
PartiesStanley BLACKLEDGE, Warden, et al., Petitioners, v. Jimmy Seth PERRY. —1660
CourtUnited States Supreme Court

Respondent, a North Carolina prison inmate, had an altercation with another prisoner, and was charged with the misdemeanor of assault with a deadly weapon, of which he was convicted in the State District Court. While respondent's subsequent appeal was pending in the Superior Court, where he had the right to a trial de novo, the prosecutor obtained an indictment covering the same conduct for the felony offense of assault with a deadly weapon with intent to kill and inflict serious bodily injury, to which respondent pleaded guilty. Thereafter, respondent applied for a writ of habeas corpus in Federal District Court, claiming, inter alia, that the felony indictment deprived him of due process. The District Court granted the writ, and the Court of Appeals affirmed. Held:

1. The indictment on the felony charge contravened the Due Process Clause of the Fourteenth Amendment, since a person convicted of a misdemeanor in North Carolina is entitled to pursue his right under state law to a trial de novo without apprehension that the State will retaliate by substituting a more serious charge for the original one and thus subject him to a significantly increased potential period of incarceration. Cf. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. Pp. 24—29.

2. Since North Carolina, having chosen originally to proceed against respondent on the misdemeanor charge in the State District Court, was precluded by the Due Process Clause from even prosecuting respondent for the more serious charge in the Superior Court, respondent's guilty plea to the felony charge did not bar him from raising his constitutional claim in the federal habeas corpus proceeding. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235, distinguished. Pp. 29—31.


Richard N. League, Raleigh, N.C., for petitioners.

James E. Keenan, Durham, N.C., for respondent.

Mr. Justice STEWART delivered the opinion of the Court.

While serving a term of imprisonment in a North Carolina penitentiary, the respondent Perry became involved in an altercation with another inmate. A warrant issued, charging Perry with the misdemeanor of assault with a deadly weapon, N.C.Gen.Stat. § 14—33(b)(1) (1969). Under North Carolina law, the District Court Division of the General Court of Justice has exclusive jurisdiction for the trial of misdemeanors. N.C.Gen.Stat. § 7A—272. Following a trial without a jury in the District Court of Northampton County, Perry was convicted of this misdemeanor and given a six-month sentence, to be served after completion of the prison term he was then serving.

Perry then filed a notice of appeal to the Northampton County Superior Court. Under North Carolina law, a person convicted in the District Court has a right to a trial de novo in the Superior Court. N.C.Gen.Stat. §§ 7A—290, 15—177.1. The right to trial de novo is absolute, there being no need for the appellant to allege error in the original proceeding. When an appeal is taken, the statutory scheme provides that the slate is wiped clean; the prior conviction is annulled, and the prosecution and the defense begin anew in the Superior Court.1

After the filing of the notice of appeal, but prior to the respondent's appearance for trial de novo in the Superior Court, the prosecutor obtained an indictment from a grand jury, charging Perry with the felony of assault with a deadly weapon with intent to kill and inflict serious bodily injury, N.C.Gen.Stat. § 14 32(a) (1969). The indictment covered the same conduct for which Perry had been tried and convicted in the District Court. Perry entered a plea of guilty to the indictment in the Superior Court, and was sentenced to a term of five to seven years in the penitentiary, to be served concurrently with the identical prison sentence he was then serving.2

A number of months later, the respondent filed an application for a writ of habeas corpus in the United States District Court for the Eastern District of North Carolina. He claimed that the indictment on the felony charge in the Superior Court constituted double jeopardy and also deprived him of due process of law. In an unreported opinion, the District Court dismissed the petition for failure to exhaust available state remedies. The United States Court of Appeals for the Fourth Circuit reversed, holding that resort to the state courts would be futile, because the Supreme Court of North Carolina had consistently rejected the constitutional claims presented by Perry in his petition. 453 F.2d 856.3 The case was remanded to the District Court for further proceedings.

On remand, the District Court granted the writ. It held that the bringing of the felony charge after the filing of the appeal violated Perry's rights under the Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. The District Court further held that the respondent had not, by his guilty plea in the Superior Court, waived his right to raise his constitutional claims in the federal habeas corpus proceeding. The Court of Appeals affirmed the judgment in a brief per curiam opinion. We granted certiorari, 414 U.S. 908, 94 S.Ct. 218, 38 L.Ed.2d 145, to consider the seemingly important issues presented by this case.


As in the District Court, Perry directs two independent constitutional attacks upon the conduct of the State in haling him into court on the felony charge after he took an appeal from the misdemeanor conviction. First, he contends that the felony indictment in the Superior Court placed him in double jeopardy, since he had already been convicted on the lesser included misdemeanor charge in the District Court. Second, he urges that the indictment on the felony charge constituted a penalty for his exercising his statutory right to appeal, and thus contravened the Due Process Clause of the Fourteenth Amendment.4 We find it necessary to reach only the latter claim.

Perry's due process arguments are derived substantially from North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, and its progeny. In Pearce, the Court considered the constitutional problems presented when, following a successful appeal and reconviction, a criminal defendant was subjected to a greater punishment than that imposed at the first trial. While we concluded that such a harsher sentence was not absolutely precluded by either the Double Jeopardy or Due Process Clause, we emphasized that 'imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be . . . a violation of due process of law.' Id., at 724, 89 S.Ct. at 2080. Because 'vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial,' id., at 725, 89 S.Ct. at 2080, we held that an increased sentence could not be imposed upon retrial unless the sentencing judge placed certain specified findings on the record.

In Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584, the Court was called upon to decide the applicability of the Pearce holding to Kentucky's two-tiered system of criminal adjudication. Kentucky, like North Carolina, allows a misdemeanor defendant convicted in an inferior trial court to seek a trial de novo in a court of general jurisdiction.5 The appellant in Colten claimed that the Constitution prevented the court of general jurisdiction, after trial de novo, from imposing a sentence in excess of that imposed in the court of original trial. This Court rejected the Pearce analogy. Emphasizing that Pearce was directed at insuring the absence of 'vindictiveness' against a criminal defendant who attacked his initial conviction on appeal, the Court found such dangers greatly minimized on the facts presented in Colten. In contrast to Pearce, the court that imposed the increased sentence after retrial in Colten was not the one whose original judgment had prompted an appellate reversal; thus, there was little possibility that an increased sentence on trial de novo could have been motivated by personal vindictiveness on the part of the sentencing judge. Hence, the Court thought the prophylactic rule of Pearce unnecessary in the de novo trial and sentencing context of Colten.

The Pearce decision was again interpreted by this Court last Term in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, in the setting of Georgia's system under which sentencing responsibility is entrusted to the jury. Upon retrial following the reversal of his original conviction, the defendant in Chaffin was reconvicted and sentenced to a greater term than had been imposed by the initial jury. Concentrating again on the issue of vindictiveness, the Court found no violation of the Pearce rule. It was noted that the second jury was completely unaware of the original sentence, and thus could hardly have sought to 'punish' Chaffin for his successful appeal. Moreover, the jury, unlike a judge who had been reversed on appeal, could hardly have a stake in the prior conviction or any motivation to discourage criminal defendants from seeking appellate review. Hence, it was concluded that the danger of vindictiveness under the circumstances of the case was 'de minimis,' id., 412 U.S. at 26, 93 S.Ct. at 1982, and did not require adoption of the constitutional rule set out in Pearce.

The lesson that emerges from Pearce, Colten, and Chaffin is that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of 'vindictiveness.' Unlike the circumstances presented by those cases, however, in the...

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