Jimmy Frank v. Frank Blackburn, Warden, Louisiana State Penitentiary

rule, non-compliance prin- with this Court’s

cipally requirement, beyond “notice” original Although May

contradiction. subsequent arrest May warrant and cause order considered “notice”

show are Rule, nothing

documents under the there is record to indicate either docu- prior were

ments served on Rumaker

17May hearing. Significantly, neither of designate contempt

these documents as

either criminal or For notice of civil. crimi- valid, contempt

nal should indicate the proceeding.

the criminal nature of

Gompers Co., and Range v. Bucks' Stove 492, 55 L.Ed. 797. By

What This Determination Court? findings

Because record contains no law, impossible of fact or it is conclusionsof Hill, Judge, dissenting filed Circuit Court to ascertain lower Court’s Kravitch, opinion in which Frank M. John- reasoning convicting appellant Rumaker son, Jr., Reavley Clark, Thomas A. Cir- Nevertheless, contempt. of criminal it is Judges, joined. cuit actions clear the Court’s failed ade- contempt quately sustain the order. Ac-

cordingly, the order must reversed and

remanded instructions dismiss. and REMANDED.

REVERSED

Jimmy FRANK, Petitioner-Appellant, BLACKBURN, Warden,

Frank Louisiana Penitentiary,

State

Respondent-Appellee.

No. 78-3452. of Appeals,

United States Court

Fifth Circuit.

Nov. provided except hearing He is bail entitled to admission to trial or with the defend- contempt charged Upon finding in these rules. If the in- ant’s consent. a verdict disrespect judge, guilt fixing volves to or criticism of a enter an court shall order disqualified presiding punishment. from Alverson, Orleans,

J. Donice New La. (Court-appointed), petitioner-appellant. Brinkman, Atty., Opel- Robert Asst. Dist. ousas, La., respondent-appellee. COLEMAN, Judge, Before Chief BROWN, AINSWORTH, GODBOLD, CLARK, RONEY, GEE, CHARLES TJO- RUBIN, FLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, Jr., FRANK M. GARZA, HENDERSON, REAVLEY, POL- ITZ, HATCHETT, ANDERSON, RAN DALL, pertaining SAM D. ion Jimmy JOHNSON THOMAS Frank’s sentence. CLARK, Judges A. Circuit *. We discuss and resolve that issue anew in light thorough examination of the

FAY, Judge: Circuit plea bargaining process. jury A Louisiana state court convicted of

Jimmy A Louisi- robbery. Frank of armed THE SENTENCE ana state court sentenced him to thir- Jimmy Frank contends that because ty-three years prison. petition In a elected plea to stand trial rather than corpus,1 habeas Frank his convic- bar- attacked gain, prison his grounds tion on the that certain identifica- sentence on conviction was testimony tion was inadmissible and that increased in violation of the fourteenth prosecutor’s argument referred amendment. Once before the trial and testify. Frank’s failure to He attacked the once during a recess in prosecution’s ground sentence on the that the trial judge case, plea conducted a bar- impermissibly the term increased of con- gaining session in his chambers. Both the rejected finement because Frank prosecutor and defense counsel participated bargain offer and elected to stand trial. in these sessions. On both occasions the The federal trial court denied habeas cor- judge, in response request to a from de- pus. panel A of this court reversed and counsel, fense personally stated that he remanded the case to the district court for would period sentence Frank to a of twenty dismissal resentencing by the state years confinement in return for court, finding Jimmy penal- Frank was guilty. rejected offers, Frank both stood ized the state court because he exercised trial, and was convicted jury, where- right constitutional to stand trial. judge imposed a sentence of thir- Blackburn, Frank v. 605 F.2d 910 ty-three years prison. Jimmy Frank 1979). We decided to rehear the case en alleges twenty year sentence of- banc because of its potentially devastating fered in exchange guilty plea for a impact upon bargaining process. increased years thirteen after conviction A majority of the en banc court now finds punish solely to him for standing trial. that no rights constitutional were violated Jimmy allegations judicial Frank’s vin- sentencing the conviction and Jimmy dictiveness exploration warrant further panel vacated, Frank. opinion is the record in the validity case. The the district court’s denial of the writ however, those allegations, can be better affirmed. evaluated after careful consideration of the Although vacating we panel opin- are policies, procedures, and purposes underly- Blackburn, ion in Frank adopt v. we plea bargaining process. statement of the facts set forth therein. addition, See 605 F.2d 911-12. In the en PLEA BARGAINING IN GENERAL adopts banc court the discussions and hold- ings is a panel negotia- of the set “Sugges- forth in the tion in prosecutor, tive Identification” which the trial judge, “Prosecutorial opinion. Comment” sections of the some other justice See 605 official the criminal emphasize, however, F.2d at 912-14. We system, offers the defendant certain conces- that we adopt portion panel opin- no sions in exchange for an guilt.2 admission of * Tate, Judges out,” “compromise Albert Jr. and Jerre S. Williams or the of criminal cases.” participate did not phrases suggest the en banc consideration Because these tend to of or decision in this case. something inappropriate there is about the practice, phrases, “plea the more neutral dis- Jimmy petition Frank’s for writ of habeas “plea agreements,” frequent- cussions” and are corpus (1976). pursuant was filed to 28 U.S.C. 2254 § ly pretrial used to describe these discussions agreements concerning entry and guilty of a See, g., or nolo contendere. e. Fed.R. practice commonly 2. This referred to as “plea bargaining,” “plea negotiation,” “trading Sentence, 66 Yale to the Judicial Determination offered relate

The concessions (1956) (discussing ques- im- results of a the sentence to be L.J. 204 charged, offense guilty pleas of other circumstances.3 sent to 240 variety or a tionnaire about posed, defendant, by the how- judges). offered The benefit federal ever, entry always the same: Notwithstanding diversity opinion guilty. subject, Supreme Court has re- on the plays a dominant plea bargaining

That expressed approval peatedly justice system criminal role in the American bargaining process. Santobello New roughly nine- the statistics: is evidenced York, 257, 92 30 L.Ed.2d defendants con- ty percent of the criminal (1971), the Court stated dis- “[t]he federal courts victed in state and charges by agreement position of criminal than exercise guilty rather their accused, prosecutor between jury. D. New- stand trial a court before loosely ‘plea bargaining,’ called sometimes man, The Determination of Conviction: component is an essential of the administra- (1966); Trial 3 or Innocence Without Guilt administered, justice. Properly it is tion of Alschuler, Bargaining History, and Its Plea 260, 404 at 92 encouraged.” to be U.S. Nevertheless, 1, (1979). 1 79 Colum.L.Rev. opinion The took S.Ct. at 498. Santobello is- plea bargaining remains a controversial practicalities note of some of the sue, praise, criticism and exten- provoking bargaining: among legal practi- scholars and sive debate every charge subject- If criminal were pronouncements tioners. Judicial trial, ed to a full-scale the States and bargaining the courts are as indicate would need to mul- Federal Government sharply split as the commentators over the number of tiply by many times propriety negotiating guilty plea. judges and court facilities. approved the use of While most courts have charges Disposition after discus- plea bargaining, judges a number of have part sions an essential it, maintaining that condemned issues of highly part but a desirable for See, g., e. guilt cannot be settled. Scott many prompt and reasons. It leads States, (D.C.Cir.1969); United 419 F.2d 264 criminal largely disposition final most States, (5th 242 v. United F.2d 101 Shelton cases; it avoids much of the corrosive banc, Cir.), 246 F.2d 571 rev’d en impact during pre- of enforced idleness curiam, 26, 1957), per 356 78 rev’d U.S. S.Ct. for those who are de- trial confinement 563, (1958) (Judge 2 L.Ed.2d 579 Rives stat- trial; pending protects nied release ing opinion for the court in the first Shelton public persons from those accused who “[jjustice liberty and are not sub- prone are to continue criminal conduct jects and barter.” 242 F.2d release; and, Bond, pretrial even while on 113); Bargaining Plea at J. and Comment, shortening charge (1978); 2.01-.04 time between Guilty Pleas §§ disposition, whatever may The Inñuence of the Defendant’s Plea on it enhances institution, 11; Project particular American Bar Association sent to a correctional Crim.P. Justice, request on Minimum Standards for credit on Criminal that a defendant receive his Relating Guilty (Ap- trial, jail awaiting to Pleas of Standards sentence for time served in Draft, 1968). “plea proved agree support application We use the terms a defendant’s bargain,” “plea agreement,” “plea negotia- parole, attempt to detainers from other have interchangeably dismissed, tion” because we find all three jurisdictions arrange for sentenc- underlying equally descriptive of the labels process. particular particular in a court or yet judge, provide immunity for crimes not charged, simply remain silent when his example, prosecutor may provide le- For might recommendation otherwise be unfa- niency accomplices, with- to a defendant’s vorable. court, damaging from hold information Alschuler, History, Bargaining and Its 79 defendant’s trial or influence the date for a 1, (1979). Colum.L.Rev. 3 n.ll sentencing, arrange for a defendant to be prospects the rehabilitative extending acquittal from to conviction they ultimately imprisoned. when are higher penalty authorized law charged. for the crime 260-61, at 404 U.S. 92 S.Ct. at 497-98.4 Supreme approval plea bargain- 751, 1470; Court accord, Id. at 90 S.Ct. at Parker through ing can be traced a series of cases Carolina, 790, v. North U.S. S.Ct. beginning Brady in 1970. v. United 25 L.Ed.2d 785 States, U.S. year Court, One after Brady, the in San- (1970), petitioner pleaded guilty L.Ed.2d 747 York, tobelio Newv. kidnapping charge to a to avoid the death (1971), 30 L.Ed.2d 427 set forth some of conviction, penalty. argued After his guidelines fair bargaining. “that it violates the Fifth Amendment case, charged in that encourage influence or a guilty plea by gambling law, violations under state plead- opportunity promise leniency and that negotiations ed after prose- with the guilty plea is coerced and invalid if influ- cutor, agreed who to make no sentence rec- possibly higher pen- enced the fear of a Finding ommendation. prosecutor alty charged for the crime if a conviction is had failed uphold part bargain, put obtained after the proof.” State its the Court noted the need for fairness 750-51, U.S. 90 S.Ct. at 1469-70. securing agreement between an accused Brady’s argument Court found unper- prosecutor. and a suasive. clear, is now for example,

We decline to hold .. . that a guilty accused pleading guilty must be coun- compelled and invalid under the Fifth seled, absent a waiver. Moore Amendment whenever motivated v. Michi- by the gan, 191, defendant’s desire accept certainty U.S. S.Ct. 2 L.Ed.2d [78 or probability penalty of a lesser 11, rather Fed.Rule gov- Crim.Proc. 167] range possibilities than face a wider erning pleas courts, in federal now makes Brady States, 742, pleas guilty, great many See also v. United 397 U.S. rest on a of them (1970), 25 L.Ed.2d 747 where the part by no doubt motivated at least in Court stated: hope penalty or assurance of a lesser than might guilty [bargaining be if there The issue were a ver- we deal with for pleas] jury. dict after a trial is inherent in or the criminal law and its course, guilty pleas prevalence Of administration because constitutionally are not forbidden, pleas explainable necessarily because the crimi- does not vali- characteristically pleas system nal pro- law extends to or date those or the jury range setting a of choice in the sentence duces them. But we cannot hold that it is cases, in individual and because both the unconstitutional for the State to extend a State and the defendant often find it advanta- benefit ato defendant who in turn extends a geous preclude possibility of the maxi- substantial benefit to the State and who dem- penalty mum authorized For law. a de- ready onstrates his that he is and slight possibility acquit- fendant who sees willing to admit his crime and to enter the tal, advantages pleading guilty and system correctional in a frame of mind that limiting probable penalty are obvious-his hope affords for success in rehabilitation reduced, exposure correctional period might over a shorter of time than processes begin immediately, can and the necessary. otherwise be practical burdens of a trial are eliminated. contrary holding require A would advantages-the For the State there are also States and Federal Government to forbid promptly imposed punishment more after an guilty pleas altogether, provide single a guilt may effectively admission of more at- penalty invariable for each crime defined objectives punishment; tain the and with statutes, place sentencing or to func- trial, judicial the avoidance of prosecutorial scarce and separate authority having tion in a no knowl- resources are conserved for edge of the manner which the conviction those cases in which there is a substantial event, any in each case was obtained. guilt issue of the defendant’s or in which necessary prosecutors would be to forbid there is substantial doubt that the State can judges accept guilty pleas to selected proof. its sustain burden of It is this mutual- counts, offenses, to lesser included or to re- ity advantage perhaps explains charges. duced The Fifth Amendment does present fact that at well over three-fourths not reach so far. country of the criminal convictions in this Hayes plead guilt must to a sentencing clear that de- record, factual velop, forgery prosecutor on the basis indictment. The also as, plea, example, by having Hayes plead guilty that if did not said gave the conduct accused describe inconvenience and ne- “save the court the must, charge. The trial,” rise to the cessity of a he would seek to reindict course, voluntary knowing and if offender Hayes under the state’s habitual by promises, the essence of it was induced act, mandatory sen- subjecting Hayes to a way promises those must in some imprisonment by tence of life reason of his course, is, known. There no made prior felony convictions. 434 U.S. at two guilty plea a ac- absolute to have chose to stand Hayes at 665. S.Ct. Overholser, 369 cepted. Lynch v. U.S. trial, prosecutor and the carried out his 1063, 1072, 8 L.Ed.2d S.Ct. [82 threat. (1962); Fed.Rule Crim.Proc. 11. A 211] Supreme process Court found no due may reject in exercise of prosecu- of the violation the fulfillment judicial discretion.- sound Hayes tor’s threat: the decision to reindict phase of the of criminal This simply legiti- as a habitual offender was justice, adjudicative and the element in- leverage mate use of available accepting guilty, herent in must bargaining process. prosecutor by safeguards to insure the be attended exercising punishing the defendant for reasonably defendant what is due in the rather, rights; presenting Hayes he was will circumstances. Those circumstances permissible range awith of choices that vary, factor is that when a but constant contemplating face accused any significant degree rests in on a plea-the certainty punishment of a lesser or promise agreement prosecutor, of more possibility punishment. severe part so that it can be said to be the Court: Said consideration, prom- inducement or such “give-and-take” plea bargain- [I]n ise must be fulfilled. ing, there punish- is no such element of 261-62, (foot- at 498-99 long ment or retaliation so as the accused omitted). Blackledge son, 431 97 S.Ct. 52 L.Ed.2d U.S. tion’s offer. (1977) (federal adopt 736 courts cannot per defendant’s such factors as his onment); constitutionally inadequate misrepresentation (guilty plea defendants who the offense to which he fendant was unaware of the Court, While se rule 96 S.Ct. in recent continuing plea Henderson v. excluding representations held were so much the misunderstanding, cases, plead guilty, involuntary as 49 has further extended all protect L.Ed.2d 108 make that Morgan, possibility pleaded guilty). basis for at the time of elements because de- product duress, rights Supreme impris- plea that a (1976) of jection of a recommendation of a lenient sen- tence or a While penalty ply because it is the end result of the plea may involuntary in a constitutional sense sim- Indeed, acceptance bargaining process. By hypothesis, plea bargaining necessarily implies fear of the ^[*] confronting have been induced any ^[*] reduction notion that a conviction after a trial. ^[*] possibility of the basic a defendant with the ^[*] charges, of a guilty plea by promises ^[*] legitimacy and thus greater ^[*] re- risk punishment clearly of more severe permissible plea bargain- the outer limits of “discouraging have a effect on the ing practices. Hayes, Bordenkircher v. rights, of his trial 357,98 663,54 defendant’s assertion (1978), U.S. L.Ed.2d 604 S.Ct. imposition of these difficult choices significantly strengthens bargaining po- permissible-“at- an prosecutors seeking guilty pleas. sition of inevitable”-and [is] any legitimate system which prosecutor in Bordenkircher offered to tribute of year prison encourages negotiation recommend a five sentence if tolerates and that, pleas.” by tolerating plea negotiations It follows acceptance and the encouraging negotiation pleas pleas, guilty in federal court. The rule re- quires necessarily accepted this Court has a detailed inquiry into the intelli- gence, accuracy, constitutionally legitimate simple re- and voluntariness of the ality compilation as well as the prosecutor’s that the interest at the complete record of all persuade agreement pro- table is to the de- ceedings See, g., under the rule. e. forgo plead fendant to his Fed.R. 11(c),(d), (f), (g). Crim.P. Specifically, guilty. rule instructs the trial to ascertain 363-64, (cita- 434 U.S. at 98 S.Ct. at 667-68 the knowing voluntary character of the accord, omitted); tions Corbitt v. New Jer- plea by addressing the defendant personally sey, 439 99 S.Ct. U.S. 58 L.Ed.2d court, open informing him of the ele- (1978); Stynchcombe, Chaffin v. ments charge against him and of the 17, 29-31, 1977, 1984-85, U.S. penalties minimum and maximum fixed L.Ed.2d law. The judge explicitly must warn the Bordenkircher clearly evidences the Su- rights defendant of the trial waived preme acceptance Court’s plea bargain- pleading guilty, question and he must integral part as an jus- criminal defendant about the existence cir- Powell, system. tice Even Justice dissatis- cumstances, government such as force or case, fied with the result in the noted that threats, endanger that would the voluntari- plea bargaining genuine affords benefits to ness of plea. 11(c). Fed.R.Crim.P. defendants as well society, as to and that After investigating the intelligent and system prose- “if the is to work effectively, voluntary nature of the defendant’s deci- cutors must be accorded the widest discre- sion to guilty, the court must require tion, limits, within constitutional in con- government and the defendant to re- ducting bargaining.” 434 U.S. veal any agreements they have made. J., (Powell, at 672 dissenting). This 11(c)(2). Fed.R.Crim.P. The defendant court, reviewing plea bargaining case asked whether he any promises has received us, ignore before high cannot court’s other than those contained practice. endorsement of the At the same agreement. 11(d). Fed.R.Crim.P. If the time, we must be attentive to the distinc- parties engaged have in plea bargaining, tions between federal review 11(e)(2) Rule gives the district discre- bargains arising in state court and federal accept reject tion to proposed agree- court review plea bargains. of federal court ment, thereby eliminating agreements To this issue we next turn our attention. which fail to judicially meet evolved stan- dards of fairness and propriety. given If a PLEA BARGAINING IN THE FEDERAL agreement accepted, is it must be reflected AND STATE SYSTEMS in the judgment and sentence A. The Federal Rule the court. If agreement rejected, an the defendant must be allowed to withdraw his system, In the plea bargain federal plea. Id. A verbatim record is to be made ing practices governed are require plea of all the proceedings mandated ments of Rule 115 of the Federal Rules of Rule 11. 11(g). Fed.R.Crim.P. rule, Criminal Procedure. This which has undergone a series of revisions and amend respect With plea the actual negotia- 1944,6 ments adoption tions, since its in sets forth 11(e) Rule states that the attorney for a complex comprehensive but scheme for government and the attorney for the 11,18 improved 5. The full text procedures of Fed.R.Crim.P. taking U.S.C.A. further for (Supp.1980), Appendix guilty pleas, is set out in I enhancing to this finality thus of con- opinion. Note, victions based on them. See Rule 11 and Pleas, Guilty Collateral Attack on 86 Yale L.J. 1966, 1975, 6. Rule 11 was amended in and most 1397-1404 recently in 1979. Each set of amendments has may. seem to the de- judge great so (or acting when the defendant he will be induced fendant se) may in discussions with engage pro if innocent. agreement. guilty even reaching plea view toward commonly four expressly The rule sanctions Project on Mini- Bar Association American exchange plea bargains.7 types used Justice, mum for Criminal Stan- Standards guilty or nolo plea for defendants Guilty, To Pleas of Commen- Relating dards contendere, may (1) reduce government tary 3.3(a). § offense, (2) charge to a or related lesser previously expressed This court (3) charges, other for dismissal of move prohibition with Rule agreement its ll’s oppose partic- agree to recommend or not plea bargains, stat judicial involvement sentence, (4) agree given that a ular or agreement by the trial that “[a] disposition of the appropriate is an may carry judge and the defendant plea agreement has been case. Once be unseemly bargain an connotation of parties, terms reached judge, and Justice. tween a malefactor are to the agreement presented sentencing capac in his all-powerful almost court, record, acceptance for his open on the accused’s ity, duty protecting an has the 1.1(e)(2). rejection. Fed.R.Crim.P. duty of rights as well as the constitutional enforce society’s interest in law protecting emphasized that while should be Beto, ment.” v. 377 F.2d Brown requires play trial an Rule accord, ex (5th 1967); Cir. United States insuring that a active role defendant’s Gilligan, F.Supp. rel. Elksnis v. uncoerced, voluntary, guilty (S.D.N.Y.1966). recognized, We have also knowledge consequences, made however, Rule 11 “states a standard specifically prohibits the rule courts, a consti necessarily for federal assuming negoti an from the role of active Wain inhibition.” tutional Blackmon process. plea bargaining in the See ator 1979). wright, (5th 608 F.2d Cir. prohibition 11(e)(1). This Fed.R.Crim.P prohibi ll’s Consequently, unqualified Rule judicial plea negoti against participation bargain judicial tion of involvement in “chilling par effect” avoids the such ations necessarily every in ing will not invalidate might on a defendant’s deci ticipation have nego judicial participation stance in the plea bargain go to accept to either sion tiation court. See state Wainwright, Blackmon v. 608 F.2d trial. Plea Bar Review State Court Federal 1979). reasons Several valid gains, infra. judge out of keeping dis cussions have been noted: B. of Review in Federal The Standard (1) participation in the discus- judicial Bargaining Cases impression in the sions can create the minutely Rule that he The evolution of 11 into a

mind of go entry a fair were he to to trial detailed scheme receive (2) judicial pleas it increas- judge; participa- in federal has made before ingly appellate makes for the courts tion discussions it difficult difficult comply judge objectively for the determine the determine whether failure specific requirement when it is of- with one Rule 11 voluntariness of the fered; Shortly (3) judicial constitutes reversible error. after participation to 1966, the of Rule 11 in promising extent of a certain sentence amendment v. theory Supreme McCarthy held in United with the behind Court inconsistent 459, 1166, States, 22 presentence investigation use of the re- 394 U.S. 89 S.Ct. (4) (1969), compliance full going along and of not L.Ed.2d 418 that port; the risk Responding disposition apparently mandatory. with Rule 11 was with the desired Bond, Guilty Bargaining Although many types bargains Pleas 19- J. and other of 7. Note, (1978); past, legitimacy Attack (1977). Rule 11 and their Collateral have been used in the 1395, Pleas, Guilty 86 Yale uncertain. See L.J. under the federal rule remains rule the failure lower courts to insist s three core to of the concerns set out in McCar- observed, strictly that the rule be the Court requires thy reversal, still automatic we said: in Dayton changes concluded that made prejudice

We ... that inheres subsequent conclude in Rule 11 to the McCarthy deci- 11, comply a failure to with Rule justify sion departure some from the stan- of noncompliance deprives the defendant review dard of set forth in that case. safeguards are procedural Rule’s that An iron rule of review directed at techni- designed to facilitate more accurate cal compliance by and literal our brothers determination the voluntariness on the district bench with the post- plea. holding Our a defendant McCarthy elaborations Rule some- accepted whose has been in violation spirit what exclusionary oppor- Rule 11 should be afforded the attempt rule’s police misconduct, to deter tunity to plead anew not will insure to inappropriate. seems us We have held that every pro- is afforded those accused fully that the rule must be and faithfully safeguards, help cedural but also will re- followed, and we do not doubt that duce great judicial waste resources district courts of this circuit will make all required to the frivolous attacks efforts follow our mandate. The ques- on guilty plea convictions that en- are tion here not whether such efforts couraged, and more are difficult dis- be should made but how we ap- should of, pose original when the record inade- praise they them when are. Nothing quate. is, therefore, not too much to above requires from to view fallings us require that, sentencing before defend- off from post-McCarthy additions to the imprisonment, ants years district meriting reversal, rule as automatic judges necessary take the few minutes we decline to do so. Where each of Rule rights inform them of their deter- inquiries ll’s core has been reasonably they mine whether understand the action implicated in required the rule’s colloquy, they are taking. we will examine its treatment to deter- 471-72, 394 U.S. at at 1173-74. mine whether it has sufficiently been ex- McCarthy The mandate of v. States United posed to inquiry and determination. If clear: was if a district court failed to com- so, we will not disturb the result. As for ply accepting plea, with Rule 11 a guilty post-McCarthy additions to the rule- would set aside and the case all, many, if not require of which deter- remanded for hearing another at which the scarcely minations of fact that can could anew. ultimate-nothing described as pre- McCarthy unequivo established an vent the trial making court from each the requirement cal compliance of strict with subject so, of a factfinding. Should it do 11 in Rule its form at the time of that we would review them in accordance with noted, however, opinion. We in United clearly erroneous rule and that of Dayton, v. States F.2d 931 error, harmless case any as in the other 1979) (en denied, banc), cert. 445 U.S. finding judge sitting a trial in a crimi- (1980), 100 S.Ct. 63 L.Ed.2d 320 jury nal case where has been decided, McCarthy when “all the rule . .. waived. lying then treated were values at the (footnotes omitted). at F.2d See of the heart rule’s concerns: absence of Timmreck, also United States coercion, understanding accusation, (1979) 60 L.Ed.2d 634 knowledge the direct consequences (holding that a conviction based on a guilty the plea.... The rule is now such subject to is not collateral attack when complexity as to letter-per level render all be shown is a technical compliance many fect each that can violation pro of its 11). opinion very Dayton visions indeed.” of Rule further difficult 604 F.2d at Recognizing specifies a failure will review although we devi- address one or clearly more ations from Rule 11 under errone- 882 standard, judge process rather than the due clauses error of the

ous-harmless Constitution, required to make formal find- not will not be state courts are bound to ings procedures factual determination re- follow the plea-taking about each federal clearly Since rule quired by Heer, the rule. v. thereby Waddy established. See trial must find sets what 1967), denied, out cert. (6th 383 F.2d Cir. 789 guilty plea, war- accepting a “we are 2069, before 911, 20 392 L.Ed.2d 1369 U.S. 88 S.Ct. acceptance court’s regarding ranted in (1968) (14th not obligate does Amendment each, positive finding on procedures); states to Rule 11 to adhere erroneous clearly under reviewable Bond, Guilty Bargaining and Pleas J. at 940-41. Id. standard.” 88-89 requirements of 11 and The detailed Rule 11 is not binding Because Rule on opinion Day- this in United States v. court’s states, reviewing court a federal a state ton leave little doubt about how federal may only plea bargain court set aside a hear- guilty plea courts should conduct guilty plea agreement which fails to ings will review proceed- and how we those satisfy process. due If a defendant under ings. Unfortunately, Rule 11 only sets him, charges against stands under courts; for federal it does not standard guilty consequences plea, stands the necessarily prohi- establish constitutional voluntarily guilty, and chooses to Wainwright, bition. Blackmon v. 608 F.2d so, without to do being coerced (5th 1979). The 183 federal rule thus Cir. agreement and any concomitant will be guidance determining little when a offers See, upheld g., e. Wil federal review. entered in state court must be guilty plea (5th Wainwright, liams v. 604 F.2d 404 Cir. rely entirely set We instead aside. on an 1979); Wainwright, 584 Fisher v. F.2d 691 limited, more different and far standard (5th 1978). Cir. wide Conscious validity review the of a state when we range plea procedures of constitutional looking plea bargain, court to see if courts, we available to the state turn now rights have constitutional been violat- procedures Jimmy to the invoked in Frank’s (1976); ed. 2254 v. See 28 U.S.C. Tollett § case. Henderson, 258, 1602, 93 411 U.S. S.Ct. 36 (1973) (stating L.Ed.2d 235 focus of inquiry

federal habeas nature of the JIMMY PLEA FRANK’S BARGAIN plea.) the voluntariness advice and alleges Jimmy Petitioner Frank that his when, rights violated constitutional were C. Federal Review State Court Plea jury, after his conviction state Bargains imposed a sentence excess of accept A state court previously that which the had offered guilty plea unless the enters it plea. in exchange him for a Accord- with a voluntarily complete under Frank, ing to the increased sentence was standing charge of the nature of the punish him for exercising his consequences plea. of his general right to stand trial and thus is evidence of standard voluntary-intelligent tak judicial vindictiveness. in the due is rooted clauses agree wholeheartedly We applicable and is Constitution therefore Frank’s assertion that a defendant cannot state federal both courts. See punished simply exercising his consti Richardson, 759, 397 McMann v. 90 U.S. tutional trial. right to stand See Cousin v. 1441, (1970); Boykin S.Ct. 25 L.Ed.2d 763 Blackburn, (5th 1979), F.2d 511 Cir. Alabama, 597 U.S. denied, (1969). Although cert. the states 445 U.S. L.Ed.2d (1980); standard, 63 L.Ed.2d United States v. comply with they must need Underwood, (5th 1979); procedures 588 F.2d 1073 particular observe the used States, long Baker v. 412 F.2d the federal courts. So as the feder United denied, 1969), purport only al Rule 11 Cir. courts construe cert.

883 583, (1970). prosecution 24 L.Ed.2d 509 We do not “the S.Ct. systematically presented however, agree, imposition the mere the factual merits of this against ease Judge, together defendant to the longer a sentence than defendant would with the pertinent history criminal of the pleaded guilty have received had he auto- sheet), (rap and, consideration, after due matically punishment. constitutes such The the presiding Judge proposed to the Supreme defense Court’s decisions attorney that a sentence of twenty years make it clear that a state is free to encour- imposed exchange for a plea of age guilty pleas by offering substantial guilty. The pretermit defendant elected to defendant, by threatening benefits to a a guilty plea right and exercised his to the punishment an accused with more severe Record, Stipulation, I, trial.” State vol. negotiated plea should a be refused. Cor- 49. by jury place A trial April took 212, Jersey, bitt v. New U.S. 99 25,1975. recess, During a trial defend- (1978); L.Ed.2d Bordenkircher ant’s counsel met a second time with the Hayes, judge and the assistant district attorney in equally L.Ed.2d 604 It is clear that chambers. The attorney requested defense accept reject a defendant is free to judge propose prospective a sentence “bargain” offered the state. Once the exchange for a guilty at that time. bargain-whether charges, it be reduced The again proposed a sentence of sentence, recommended or some other con- twenty years, and the defendant elected to however, rejected, cession-is the defendant continue his to a trial. May On complain cannot that the denial of the re- 1975, after his jury, conviction de- jected punishment offer constitutes a or is Jimmy fendant Frank was sentenced judicial evidence of vindictiveness. To ac- thirty-three years at hard labor cept argument such an ignore is to com- without benefit parole, probation or sus- pletely underlying philosophy pur- pension of sentence. Id. at 49-50. Al- poses plea bargaining system. If a though no record was made the sentenc- successfully defendant can demand the ing proceedings,8 the judge’s per cu- leniency same after standing trial that was opinion riam sets forth some of his reasons prior offered to him to trial in exchange for sentence, for the along with general plea, all the incentives plea bargaining. views of bargain disappear; the defendant has noth- gets impression Court that Coun- ing to lose by going to trial. sel for the trying give Defendant is case, In the Jimmy instant Frank Supreme Court the idea that [Louisiana] argues that his increased sentence does not defense is ordinarily dragged counsel into stem solely from the leniency denial of of Chambers, and blackmailed into either fered in negotiations. Rather, he pleading guilty for a smaller sentence’ or alleges that the thirty- receiving greater sentence if he stands year three sentence out of sheer vindictive trial. This is not the case at all. The ness, against to retaliate the defendant for Court is constantly being asked de- going to Having carefully trial. reviewed fense counsel to make an evaluation of a case, the record in this we find no evidence sentence if the pleads accused guilty. At support allegations Frank’s of vindictive time, the Court has sketchy ness. idea of the circumstances alleged trial, prior record reveals that crime, and depend must on the oral asser- judge, the assistant attorney, district tions of defense counsel and the District defense counsel pretrial attended a statements, confer- Attorney, and whatever rec- ence judge’s ords, held in the chambers. There and other documents are available Although cording Frank, Louisiana’s Code of Criminal Proce- made. See State v. 344 So.2d (1974) mandatorily required J., (La.1977) (Tate, dure art. 843 concurring original recorded, hearing part, dissenting part.) inadvertently failed to have such a re- Also, Judge be deterrent to individual commit- at this time time.

at this looking and has taken that ting again, counsel are this crime is aware that defense limit, sentence, or lower sentencing the minimum into consideration. for the Court will even a which was recommendations ney, would not said general sentence to an lence, minimum of undersigned, signed has never and repetition any crime. with the cause less generally in this and arbitrary pleas than finding heavy Court permit of this because In armed armed twenty because forty permit the defense counsel. sanctions acknowledges of imposition of minimum for armed serious guilty. robbery, years. The under- years, regardless jurisdiction that the will never subscribe the on robbery the District Court’s crime, threat of vio- In this sentence robbery Legislature and the Court a sentence cases, and plea, fear of agrees Attor- case, It is the be- or this matter. The Court accused, challenge that method. ... does not remember ated facts as ticular nationally accepted, man life matter, bers, In certainly this ¡(! not to lawyers however, plea bargaining case, with they he ^[*] the utilize minds made, seems unfolded regard to the threat to will only in . the . . the Court must Constitutionality Sfc the sentence of his explore and the callous attitude of the details of the unfair to this Court and Court, >}C that took then, victims. vividly remem- the trial fear path that $ after decid- but he proposed, place of this in the of this gener- say it 5(t par- hu- the in Record, I, at crime,-taking this all of vol. 51-53.9 has State consideration, together into with this rec- panel A court found that the life,-the gen- to has threat human Court ord in this demonstrated “that case erally people felt that these should judge lacked reason to increase defendant’s repetitive the chance of confined until proposed over what he in passed; has and threat to human life has regard . . . With sessions. hoped keeping people that these confined during the the conduct of the defendant will they their and 70’s until are in 60’s subsequent robbery course of the and his lessen the perhaps their blood and cool arrest, testimony preliminary at the [the] of this crime. repetition chance hearing virtually identical [the] usually these undersigned sentences Thus, prior start testimony at trial. to the they people to them confined until keep itself, virtually of the had a older, years feeling reach 65 that complete picture night events on they probably that time can be returned Blackburn, robbery.” of the Frank society. 1979). find the F.2d We hoped view too narrow. Secondly, always panel’s the Court record general the hands feeling of While the guilty pleas that manifest a information plea bargaining at the time of repentance, hopes Court would of being expediting bargaining, the trial time saved his dock- reference to However, stated: et. as stated above this Court feels all to advan- it is a device which is the unfair opinion [plea while is this [I]t Court’s accused; tage constitutional, it should be characteriz- bargaining] legal it is society; as feels urges ed unfair to and this Court reprehensible, undersigned and the Supreme bring prestige Supreme speak against Court should out its Court putting an end to it. Court to bear decisions. feels it is all to the The Court accused, advantage immoral This not feel that it is it lends itself Court does of the law, unconstitutional, imposed by nor but feels it is unfair minimize the sanctions escape society consequences is a device to and to the victims of crime. unconstitutional, jails how criminal act. The Court understands then will and If it is easy employ- Attor- emptied, it is District for our overworked should be because of its ney than recommend a lesser sentence ment on a scale. national for, exchange ordinarily for a I, strive Record, at 54. State vol. Attorney’s guilty plea,-the reward District situation, sentencing, have been the same as at in that “the Due Process Clause is persuasive judge’s we find asser- possibilities offended all of increased graphic, tion that “the Court had more punishment de- appeal, retrial after but scriptive and detailed evidence of the crime only by those pose a realistic likelihood ” and the character of the individual at the of ‘vindictiveness.’ Blackledge v. Perry, sentencing.” time of Trial Per Court’s Cu- 21, 27, U.S. riam, Record, I, vol. State unnumbered L.Ed.2d 628 We find nothing in the page. provided Even if the trial no addi- record present case to indicate a character, tional evidence of the mere fact “realistic likelihood of vindictiveness” on that Jimmy acknowledge Frank refused to part of the judge. trial The sentencing guilt willingness his and showed no to as- which followed the trial the merits responsibility sume his conduct saw the trial possession only have led the to conclude that this more of the detailed facts of the offense potential lacked for rehabilita- itself, but of the flavor of the event and the tion thus justifying imposition of a impact upon any victims. See United greater sentence than that offered in ex- Derrick, 1, (6th States v. 519 F.2d 4 Cir. change guilty plea. for a 1975). thirty-three The year sentence im- posed the judge had been after afforded the panel deciding this case recognized advantage of a full-scale trial on the judge may that a consider a facts variety wide exorbitant, was not excessive or factors in and the determining proper sentence, year thirteen increase over the usually accept judge’s twenty-year and that “we state- sentence plea negotiations offered in ment that he did not increase the sentence “falls far short of vindictively.” evidencing a vindictive panel 605 F.2d at 915. The attitude or recognized punish also desire to for ... mere fact that [defendant] “[t]he going to longer Frank received a trial. United Cunning- sentence con- States ham, 884, (6th viction 529 pretrial than was offered at a F.2d 889 1976). hear- Cir. We ing conclusively does not have no Jimmy show vindictive- reason to attribute Frank’s ness.” Id. Relying upon at 915. increased anything North sentence to other than Pearce, 711, Carolina v. 395 judge’s U.S. 89 the trial appraisal S.Ct. more accurate (1969), panel L.Ed.2d the circumstances after hearing the full dis- sought nevertheless to establish an analo- closure of the facts trial. See id. at 889. gous preventing rule the imposition upholding the sentence greater by than that offered Jimmy Frank after his plead refusal to exchange court in guilty. for a Id. guilty, we note with approval proce- at 915. dures by recommended the American Bar

We find the rule of North Project Carolina Association on Minimum Standards v. Pearce completely inapplicable to be Justice, to for Criminal Standards Relating to post-plea bargain sentencing proceedings. Guilty Draft, Pleas of (Approved 1968), Accord, Blackburn, (hereinafter Martin v. 606 F.2d Pleas Guilty).10 The A.B.A. denied, 1979), standards, (5th Cir. cert. U.S. which have been frequently cited (1980) court, see, 64 L.Ed.2d 265 g., Beto, e. Brown v. (“it highly questionable whether Pearce 1967), F.2d 950 recognize that “[i]t applies plea bargaining situations”). proper As grant for the court to charge and out, panel pointed Pearce held that a sentence concessions to defendants who en- penalized defendant must not be for assert ter a or nolo contendere when his a new imposi trial public the interest of the in the effective longer tion of a sentence than he justice received administration of criminal would at the first applies trial. The Pearce rule thereby be served. Guilty 1.8(a). Pleas of § sentencing retrial, after a and even The A.B.A. standards specifically state that Appendix particular 10. See II for the full text of sections elude these sections because of their 1.8 and 3.3 of the A.B.A. in- standards. We relevance to the issues raised in this case. judicial position take the standards between defend- in treatment disparity is undesir- discussions participation who defendants guilty and ants who 3.3(a). Unlike Guilty Pleas of accomplished by § able. See “is not to be do not however, the standards on those Fed.R.Crim.P. penalties of excessive imposition procedures propriety Guilty, recognize Commen- Pleas who stand trial.” which, parties requested when 1.8(b). tary § will also judge, consented impose upon a de- should The court degree certainty when greater allow a of that in excess any sentence fendant involve the sen- concessions proposed any of the justified by which would charges of other be- the dismissal tence or rehabilitative, deterrent protective 3.3(b) authorizes fore the court. Section criminal law be- purposes other prosecuting judge to allow require has chosen to cause the counsel to indicate guilt attorney at trial and defense prove prosecution why they agree him advance than to enter rather appropri- that certain concessions nolo contendere. permitted to indi- is then ate. however, Commentary, 1.8(b). The Id. § conces- will concur these cate whether he justifications may certain recognizes that presentence if information in the sions the greater penalty on imposing a exist for representations with the report consistent trial. who stands defendant made to him. course, contended, if has been emphasized, procedure, must be This it between the defend- any disparity exists by the contemplate participation does not defend- trial and other ant who stands judge The judge in the discussions. ants, received excessive former has the parties involved after only becomes Comment, 204, 66 Yale L.J. punishment. and thus there agreement, have reached rejected (1956). view is here. That 220 upon little basis appear to be Advisory Committee believes The con- or counsel could which the defendant between essential difference there is an attempting to judge clude that A, go who to in which defendants system parties. result force a certain jus- greatest punishment trial receive Moreover, not initiate the does pe- accepted principles of tifiable under conference; matter brought he is into the plead who nology and some defendants plea only upon the prior to tender of the receive some- guilty or nolo contendré parties. request of the because of the circumstances thing less B, system surrounding plea, their 3.3(b). Commentary, Guilty, Pleas of § giving from de- disparity results case, there is no record of In the instant punish- greater trial fendants who stand place discussions which took the actual justified. than can be ment stipula- The judge’s in the trial chambers. 1.8(b): Commentary Jim- Guilty, Pleas of § however, parties suggests, tion of the “system clearly case falls within my Frank’s who asked the defendant’s counsel was question that the crime There is no A.” proposal; presumably judge for a sentence disparity justified punishment. willing go along with prosecutor con- offered before and after the sentences Although we do not judge’s proposal. judicial not from vindictive- viction resulted plea pro- wholeheartedly approve punish, but from ness or desire to judge’s ceedings place which took in the circumstances, judge’s reappraisal of all chambers, participation we not find the do completed. after the trial was prohibited. constitutionally in this case to be v. Compare ex rel. McGrath opinion placed special United States panel Because the LaVallee, (2d 1963) (con- F.2d 308 Cir. personal in- 319 judge’s emphasis on the was ordered this ference in chambers plea discussions in volvement request by ei- any apparent re- without case, respect to the we note that prosecutor.) A.B.A. ther defendant judge, the trial sponsibilities of

887 lost; gambled Frank having CONCLUSION refused bargain, expect he cannot now Jimmy comes before Frank’s case this receive the benefits that abandoned corpus, habeas petition court on a a civil agreement after conviction. Cousin v. proceeding in which burden is on the Blackburn, (5th 511 1979), 597 F.2d Cir. petitioner to show a violation of his consti- denied, cert. 445 U.S. S.Ct. case, however, rights. tutional In this L.Ed.2d 779 this court has previ As petitioner present has failed to even a scin- stated, ously “it our credulity stretches support tilla of evidence his claim that think plead that one who declines to increased the sen- vindictively with a ... acceptable to the Court plea negotia- rejected tence offered but given should nevertheless be the benefits of choosing tions in order to him for punish to, a bargain rejected by, available but stand trial. Resnick, him.” United States 483 F.2d above, As we do not we indicated look (5th denied, Cir.), cert. judge’s favorably participa- L.Ed.2d 246 (1973). plea negotiations tion in the which tran- spired reviewing in his AFFIRMED. chambers.

case, however, is only our task to determine rights

whether were APPENDIX I constitutional violated. expressly federal rule which forbids the RULE 11. Pleas court from participating (a) Alternatives. A defendant may states a standard for federal courts only, plead guilty, or nolo guilty, contendere. and not a constitutional inhibition. Black- If a refuses to or if a Wainwright, mon v. F.2d corporation fails appear, case, 1979). In the neither instant court shall enter a of not plea guilty. negotiations nor the sentence vio- (b) Nolo A may Contendere. defendant any lated Frank’s Jimmy fourteenth plead nolo contendere with the consent rights. amendment of the court. shall be plea accepted Such a Plea-bargains accepted have become an by the court due only after consideration of resolving mode of pro criminal trials. The the views of and the parties the interest of cedure parties offers obvious benefits to all public the in the effective administration of exchange guilty involved. for his plea, justice. the defendant obtains a reduction of (c) Advice to Defendant. Before accept- charges or guaranteed a sentence. The plea contendere, a nolo guilty or the prosecutor one eliminates more case from court personal- must address defendant the the crowded is dockets and free to move on ly in open of, court inform him and and to disposition the other matters. The understands, determine that he the follow- system punishes offender pro the while ing: moting judicial prosecutorial and economy, (1) the the charge nature of to which thereby serving public’s the interest plea offered, the mandatory is the mini- justice. effective of criminal administration law, penalty provided by mum any, if and today, In the case before us the defendant the possible penalty provided maximum guaranteed twenty year offered a sen law; by and tence in a exchange guilty plea. Not (2) if is represented the defendant not proposed bargain, satisfied with the he by attorney, right an he has the that to chose to take his chances and stand trial. represented attorney be every an at argues defendant now that he should stage proceeding against and, of the him given be the fruits the abandoned bar if necessary, appointed one will be to gain-in spite of “not guilty.” of his him; represent permit The rules do no game such a result, (3) the right however. Once defendant elects that he has the not go trial, are off. that Jimmy guilty persist all bets or to in if it has (C) agree a specific

APPENDIX that sentence is I—Continued disposition of the case. made, appropriate the the he has already and that been jury and at that tried right to be in participate any court shall assistance right the the trial has such discussions. counsel, right and cross- to confront the Agreement. (2) If Notice of Such him, the against witnesses examine plea agreement has been reached the compelled incriminate

right not to shall, record, on the parties, the court himself; and agreement the require the disclosure of con- guilty or nolo (4) pleads if he that or, showing good on a open court not be a further there will tendere camera, cause, time is or kind, by pleading so is agreement type If offered. to a right he waives nolo contendere (e)(1)(A) (C), or specified subdivision trial; and reject agree- accept or may court con- (5) guilty or nolo pleads if he ment, may as to defer its decision tendere, questions ask him the court rejection acceptance or until there has plead- to which about the offense pre- opportunity an to consider the been ed, questions if he these answers report. agreement If the oath, record, and in on the under (e)(1)(B), specified in subdivision type counsel, may la- his answers presence of the court shall advise defendant against prosecution him in ter used accept if the court does the recom- perjury or false statement. request mendation or Voluntary. (d) Insuring That Plea no to withdraw his nevertheless has accept The court shall not plea. first, ad- without

or nolo contendere (3) Acceptance Agreement. personally open dressing accepts plea agreement, If the court court, volun- determining that shall inform the defendant threats the result of force or tary and not judgment and sen- embody it will agreement. apart from a promises ofor provided for in the disposition tence the inquire as to whether shall also The court plea agreement. willingness plead guilty the defendant’s (4) Rejection Agreement. of a Plea prior results discus- nolo contendere from rejects plea agreement, If the court attorney govern- for the between the sions record, shall, the court on the inform the attorney. or his ment and the defendant fact, parties of advise the defendant (e) Agreement Plea Procedure. or, personally showing on open in a (1) attorney for In General. camera, good cause, in that the court is de- attorney for the goverment and the plea agreement, afford bound acting pro when or the defendant fendant opportunity to then defendant a view engage in discussions with may se advise the plea, withdraw his defend- that, agreement reaching an toward persists guilty plea ant that if he in his or nolo entering plea guilty or of a plea disposition of nolo contendere the charged offense or to a to a contendere to the case be less favorable offense, attorney for lesser or related contemplated by defendant than any of follow- government will do plea agreement. ing: (5) Agreement Time Proce- of others (A) move for dismissal shown, Except good cause noti- dure. for charges; or of a court of the existence fication recommendation, or (B) make given shall be at the ar- plea agreement oppose the defendant’s agree not time, prior to raignment or such other sentence, with request, particular for a trial, may fixed the court. understanding such recom- Inadmissibility (6) pleas, plea bind- dis- request or shall not be mendation cussions, court; and related statements. Ex- ing upon the or APPENDIX I—Continued Standards

cept provided as otherwise para- in this PART I. RECEIVING AND ACTING graph, following not, evidence of the UPON THE PLEA any civil or criminal proceeding, admissi- against ble the defendant who made the defendant; Pleading by 1.1 alternatives. plea participant or was a in the plea (a) A may plead not guilty, discussions: (when guilty, or allowed under the law of (A) plea guilty which was later jurisdiction) nolo plea contendere. A withdrawn; guilty or nolo contendere should be received (B) plea contendere; of nolo only from the open defendant himself in (C) any statement made in the court, except when the defendant is a cor- course of proceedings under this poration, plea may which case the rule regarding either of the foregoing corporate entered counsel or a officer. pleas; or (b) A

(D) any may plead statement made nolo conten- dere plea only course of discussions with with the an at- consent of the court. torney plea Such a government which do should be accepted by the court plea not result in a of guilty or after which due consideration of the views of result plea guilty the parties later with- and the interest public of the However, drawn. such a statement the effective justice. administration of (i) admissible in any proceeding where- in another statement made in the Pleading 1.2 to other offenses. course of the plea same discus- sions has been introduced and the Upon entry of a or nolo conten- ought statement in fairness be con- dere or after conviction on a of not it, sidered contemporaneously with guilty, the defendant’s may request counsel (ii) in a criminal proceeding perjury permission for the defendant to enter a or false statement if the statement was or nolo contendere as to other made oath, the defendant under crimes he has committed which are within record, presence and in the of coun- jurisdiction of coordinate courts of that sel. Upon state. approval prose- written (f) Determining Accuracy cuting attorney governmental unit Pleas. Notwithstanding the acceptance charged these crimes are or could be guilty, the court should not judg- charged, enter a the defendant should be allowed to ment such making without such plea (subject enter the to the court’s discre- inquiry as satisfy shall it that there is a tion to plea). refuse nolo contendere En- factual basis for the plea. try of such a constitutes a waiver of (i) venue, following: as to crimes com- (g) Proceedings. Record of A verbatim governmental mitted in other units of the record of the proceedings at which the de- state; (ii) charge, formal as to offenses plea fendant enters and, a shall be made if yet not charged. there plea is a of guilty contendere, or nolo include, limitation, record shall without defendant, court’s advice to the counsel; 1.3 Aid of time for delibera- inquiry into the plea voluntariness of the tion. including any plea agreement, and the in- quiry into the accuracy guilty plea. (a) A defendant should not be called until he has had an opportu-

APPENDIX II nity or, to retain counsel if he eligible appointment counsel, American Project Bar of Association on Mini- until counsel has Justice, mum appointed Standards for Criminal been or waived. A Stan- Relating dards to Pleas of Guilty (Approved with counsel should not be required to enter Draft, 1968). plea a if his counsel makes a reasonable agreement, plea plea discussions and a prior II —Continued APPENDIX and, is, agreement has been if it what represent time for additional

request prosecuting attorney has reached. If the interests. defendant’s sentence, charge or conces- agreed to seek should without counsel (b) A defendant court, approved by the sions which must be plead to a serious upon to be called person- the defendant the court must advise time, set rule until a offense reasonable prose- of the ally that the recommendations held statute, date he was following the binding on the cuting attorney are not without a defendant When to answer. then address the court. The court should or nolo plea guilty tenders a counsel determine wheth- personally and offense, the court serious to a contendere promises any force or er other it is reaf- accept plea unless should plea. were used to obtain the threats after a reasonable by the defendant firmed statute, deliberation, by rule or set time for accuracy plea. Determining 1.6 received the date the defendant following plea acceptance of Notwithstanding the in sec- required advice from the judg- should not enter guilty, the court tion 1.4. making without such plea such ment advised court. Defendant to be 1.4 that there is a may satisfy it inquiry as plea. basis for factual accept plea should not The court from a defendant guilty or nolo contendere addressing per- the defendant proceedings.

without first 1.7 Record sonally and proceedings verbatim record of A

(a) determining plea that he understands defendant enters which the charge; pre- made and of the should be nature or nolo contendere (i) the should include The record served. plea of (b) informing him that his (as required to the defendant court’s advice he waives his or nolo contendere vol- 1.4). (ii) inquiry into the in section by jury; and right to trial (as in sec- required plea untariness (c) informing him: into the accu- 1.5), (iii) inquiry tion (i) possible sentence of the maximum 1.6). (as required in section racy including possible that charge, on the sentences; from consecutive dispo- in final 1.8 Consideration sen- (ii) mandatory minimum sition. tence, charge; and any, if on the grant (a) for the court proper one (iii) charged offense when the sentence concessions to defend- charge and pun- a different or additional for which guilty or nolo who enter a ants by reason of the ishment is authorized public the interest of the contendere when previously the defendant has fact of criminal in the effective administration offense, an been convicted of this Among justice thereby be served. after his established fact appropriate are the considerations which previ- if he has been present action determining question are: convicted, subjecting him thereby ously (i) the defendant punish- additional different or to such prompt and certain ensuring aided ment. of correctional measures application plea. Determining him; voluntariness 1.5 (ii) has acknowl- the defendant accept court should not willingness edged guilt and shown a his first de- contendere without

guilty or nolo conduct; his responsibility for to assume By plea voluntary. is termining that pos- (iii) will make that the concessions attorney and de- inquiry prosecuting measures alternative correctional counsel, determine sible the court should fense achieving adapted to better which are plea is the result whether the tendered (3) APPENDIX II —Continued plea was involuntary, or was rehabilitative, protective, or deterrent entered without knowledge of treatment, charge correctional purposes other or that the sentence actually harm to the de- prevent or will undue imposed could be imposed; or conviction; fendant from the form of (4) he did not receive the charge or (iv) pub- the defendant has made contemplated concessions unnecessary good lic when there are plea agreement and the prosecuting having the case reasons for not dealt with attorney failed to seek or not to oppose trial; public in a these concessions promised in the (v) given defendant has plea agreement. cooperation coopera- offered when such (iii) may defendant move for with- in may tion has resulted or result plea drawal of his alleging without prosecution successful of other offenders he is innocent charge to which the engaged equally serious or more seri- plea has been entered. conduct; ous criminal (vi) plea that the defendant his (b) In the absence of a showing that avoiding delay (including delay aided in withdrawal is necessary to correct a mani- dockets) disposition due to crowded injustice, fest defendant not with- thereby of other cases and has increased plea draw guilty his or nolo contendere probability prompt ap- and certain as a matter plea once the has been plication correctional measures to oth- accepted by sentence, the court. Before er offenders. court in its discretion may allow the defend- (b) The impose upon court should not ant to plea any withdraw his fair and defendant sentence in excess of that just reason unless prosecution has been justified by any would be substantially prejudiced by reliance upon rehabilitative, protective, deterrent or other plea. defendant’s purposes of the criminal law because the require prose- defendant has chosen to 2.2 Withdrawn not admissible. prove guilt cution to at trial than rather guilty to enter a or nolo contendere. pleaA or nolo contendere which PART II. WITHDRAWAL OF THE PLEA is not accepted or has been withdrawn should against not be received the defend-

2.1 Plea withdrawal. ant in any criminal proceedings. (a) The court should allow the PART III. PLEA DISCUSSIONS AND his plea withdraw or nolo con- PLEA AGREEMENTS defendant, tendere whenever upon a withdrawal, timely proves motion for 3.1 Propriety discussions and is necessary withdrawal to correct a mani- plea agreements. injustice. fest (a) In appears cases which it that the (i) A motion for timely withdrawal if public interest of the in the effective ad- diligence, considering made with due justice (as ministration of criminal stated in therein, allegations nature of the and is 1.8) served, section would thereby be not necessarily barred because made sub- prosecuting attorney may engage sequent judgment or sentence. discussions for purpose of reaching a (ii) necessary Withdrawal to correct plea agreement. He should engage injustice a manifest whenever the de- discussions or plea agreement reach a proves fendant that: only through counsel, defense (1) he was denied the effective as- except when the defendant eligible guaranteed sistance of counsel to him for or does appointment not desire of coun- rule; constitution, statute, sel and has not retained counsel. (2) was not entered or rati- (b) person prosecuting attorney, reaching fied the defendant or a au- behalf; plea agreement, may thorized to so act in his to one agree or more presentence report APPENDIX II —Continued tion in the is consistent representations to him. If made circum- following, as dictated disposi- concurs but the final the trial case: stances of the individual charge or sentence tion does not include the favorable (i) oppose or to make not contemplated plea agree- in the concessions to the recommendations ment, what he shall state for the record be if the defendant which should presentence report in the con- information contendere; plea guilty or nolo enters grant to his decision not to these tributed (ii) oppose or not dismissal to seek concessions. en- charged if the defendant the offense guilty or nolo contendere plea ters a (c) plea guilty or nolo conten- When reasonably related to de- offense another or as a result of a is tendered received dere conduct; fendant’s or agreement, should prior plea (iii) consideration, dismissal oppose agreement to seek or but give not due charges charges potential notwithstanding its he should of other or existence if the defendant against independent the defendant decision on whether reach an plea charge nolo contendere. or sentence concessions un- grant enters a or principles in section 1.8. der the set forth (c) should Similarly situated defendants plea opportu- equal agreement afforded be not ad- agreement Discussion and 3.4 nities. missible. Relationship coun- 3.2 between defense subsequently enters the defendant Unless

sel and client. contendere guilty or nolo plea withdrawn, the defendant fact not (a) conclude a Defense counsel should attorney prosecuting and the or his counsel agreement only with the consent of plea a plea or made in discussions engaged defendant, the deci- and should ensure that in evi- received should not be agreement sion whether enter the defendant against or in favor of dence made ultimately nolo contendere is or administra- or civil action any criminal in defendant. proceedings. tive reaching a (b) To aid the defendant decision, counsel, appropriate defense after I. PART RECEIVING AND ACTING investigation, the defendant should advise THE UPON PLEA consid- the alternatives available and of defendant; Pleading by 1.1 alternatives. important erations deemed him or (a) guilty, A may plead reaching a decision. (when the law of guilty, or allowed under jurisdiction) nolo contendere. A judge. Responsibilities of the trial 3.3 guilty or nolo contendere should be received participate (a) The trial should open only from the defendant himself discussions. court, except when is a cor- the defendant

(b) plea agreement If a tentative may be poration, in which case the entry contemplates reached which been corporate entered counsel officer. guilty or in the plea of nolo contendere (b) may plead A defendant nolo conten- charges expectation that other before only with the of the court. dere consent will be or that sentence dismissed accepted by should the court Such a granted, upon request concessions will due of the views of after consideration parties judge may permit parties public and the interest of the agree- to him of the tentative disclosure justice. effective administrative of in advance ment and the reasons therefor Commentary plea. time for He tender of (a) 1.1 Section attorney the prosecuting then indicate to counsel he will concur and defense whether The first sentence states the alternatives disposition informa- Rule proposed if the available to the defendant. Federal judge announced, on each occasion, that APPENDIX II —Continued sentence would be twenty confinement for provides that Procedure “the Criminal years upon a conviction upon based guilty a plea may accept guilty,” refuse to court plea. Instead, the conviction upon was legislation and rules are in and some state jury verdict. The same who had meaning of precise this lan- accord. found and announced that a twenty year uncertain, is it has been said guage but that sentence would have been appropriate had “the should not be refused without petitioner pleaded guilty sentenced petition- States, good McCoy reason.” v. United er thirty-three to years confinement after (D.C.Cir.1966). The F.2d 306 omission from trial. judge’s standard authority the above It guilty plea to refuse is deliberate. is Our majority flatly holds: provided elsewhere in these standards that Even if provided no additional accept guilty plea the court should not character, evidence of the mere fact that properly been until defendant has ad- Jimmy Frank refused to acknowledge his (section 1.4) vised and the has deter- guilt and showed no willingness to as- (section 1.5), voluntary mined the to be sume responsibility for his may conduct judgment upon and that should not have lead to conclude that this be entered unless the court satisfied that potential lacked for rehabilita- (section there is a factual for the basis tion thus justifying the imposition of a 1.6). greater sentence than that ex- offered in change guilty plea. for a HILL, whom KRAV- Judge, Circuit JOHNSON, Jr., ITCH, FRANK M. REAV- (At 885). holding I view as jurispru- CLARK, and THOMAS A. Circuit LEY foreign contrary dence own and our join, dissenting: Judges, dispute our I do not that Constitution. there are lands in whose courts it is neces- judge pun- If a Respectfully, I dissent. sary confess that that an accused of which a criminal because the de- ishes and, charged he is to avoid guilty inappropri- in- in order fendant declines to ately punishment increased addi- stead, avails herself of the consti- himself or trial, putting tional tutionally guaranteed to a antisocial act accuser such dispute proof. system to its I that in our The fact that do action unconstitutional. an accused punitive presented in the mere fact refuses such measure is charge plead guilty pun- does to the state’s is a plea bargaining not make it context ishable offense. lawful. guilty plea in this case. No was entered We receive this case cloaked in the often

Therefore, examining we are the reverse controversial garb of what is known as It the coerced situation. is not side of “plea bargaining.” Of the many forms of was petitioner unlawfully contended that method of resolving disputes between guilty. pleading alleged into coerced defendants, executive and the one here punished, enhanced sen- presented is “sentence bargaining.”1 tence, not accommodate because he would bargains Plea justice system. He insisted based the criminal great guaranteed right imposed provoke controversy constitutionally helpful to the may yet proper been be the most to trial. Two efforts had made-one justice. In most during trial-to obtain administration of cases before and one concerns the defend- petitioner’s case. The is the sentence which ant of the uncertain- participated in each of the discussions. The most. The resolution prosecutor may questions opinion majority serious properly agree three to the for our 1. Note Alschuler, damaging (taken Bargaining “withhold informa- from and Its (1979)) summary History, sug- 3 n.ll tion from the court” is otherwise 79 Colum.L.Rev. Avery, directly illuminating. gests bargains, States v. related to See United other J„ sentence, 1979) (Hill, F.2d dissent- be struck between the ing). While I have executive and the defendant. capital expense maxi- ments of funds and dis- statutes’ ty in the offended inherent They also certainty public. from the into bursements punishment allowable mum incurring from partic- disputing parties save the sentence for the appropriate an costs, great incon- specific unnecessary and often offend- ular defendant veniences, suggest To and uncertainties. may the basis for resolu- provide acts evil would be that settlements are somehow issues. tion of all other physical problems positing like that cures me, investiga- in some indulge I must For through therapy are to be avoided if clinical appraise I can practice-before tion of surgery Courtrooms must be be available. giving happenings rise to particular courthouses, surgical am- available in and upon that investi- case before us. I embark hospitals, re- phitheatres part are a but because, jurist gation distinguished aas proper to neither if course should be had ago, “When the wrote some nine decades their use. results can be obtained without discovered, prob- is point of view agreeable I half submit that the benefits is more than solved.”2 lem disputed issues dis- extend to resolution Right Point of View I. The putes between the executive and citizens seriously Hardly contem- anyone who charged if agreements with crime are dispute resolu- plates the role of courts through procedures. proper reached Fur- disputes, deny tion would that settlement ther, through can be criminal cases resolved well-informed, freely by made well-advised negotiation involving without threats parties disputes to is to be commended. punish those who choose trial. court to disputes which exist to resolve those Courts In the settlement of civil cases and dis- appropriately be resolved otherwise cannot earlier, putes practices are referred some is availability of courts some assur- and noting: worth dispute need party ance that neither Negotiations 1. on between are carried resolution. accept inappropriate an interests, parties one to with adverse cases, agreed some what has been In other. be effectuated parties between cannot 2. While it cannot denied settle- its passes upon appropriate- the court until ment of such cases is beneficial to the by guardi- agreement ness. The reached pre- an and to its court as institution an litem minor otherwise incom- ad for a time, judge, efforts siding required petent historically ward review has facilities which would otherwise be parties. the court before it binds the trials, is devoted not one agreements par- Custody litigating between judge is neu- of the adversaries. The disrupted marriages, ents of children tral, nor neither adverse to advocate settlements, derivative suit stockholder for, party. either bankrupt- compromises trustees some negotiations, During 3. but before reso- cy, agreeable terminations of class ac- lution, are pro- demands and offers judicial require tions that a officer investi- posed differing from the ultimate ar- gate agreements are affirm rangement upon agreement which is appropriate. to be Sentences reached. pleas defendants convicted are, submit, mere Negotiations proposals I other such cases. The 4. involve cou- pled re- fact that court review in such eases is with threats. An offer con- quired position by does not mean that settlements cede a one of the adver- discouraged. Agreeable necessarily coupled resolutions of is with a are saries parties position and serve the to that this sort serve the threat return justice. reso- not administration of Often such should concession result great invest- agreement. lutions conserve additional Co., Georgia 2. Ellison v. Railroad Ga. 706-707, (Bleckley, (1891) C. S.E. J.). Nevertheless, proceedings when When are commenced concluded, crime, against person charged product

been of it is assertion is made that the defendant is parties endorsed both the dis- punishment and the maximum result, pute appropriate as the all is be exacted set forth in the statute. Thus, being things considered. cases, many it is realistically expect- disputants former become mutual ad- that, upon ed by jury conviction verdict or vocates the settlement. plea, a guilty the maximum penalty would approval 6. In those cases where court imposed-though none can assure the de- presented required, settlement fendant will not. Even in cases court, by dispu- to the both former guilt apparent, where cautious defend- tants, appropriate resolution of as ants often guilty plea will enter a given all the issues due consideration their first to response the accusation or legitimate to all interests. indictment. compet- 7. Where the advocates those of Often, attorney the prosecuting, advocat- ing performed proper- interests have ing public the and interests the de- ly, appropriate the settlement is and fendant, personally counsel, byor advocat- approval. the will so its by find ing particular the interests of the defend- lacking Where has been in one atten- ant, can, the penalty pro- within maximum tion, skill, inappropriate effort or the law, by vided at appropriate arrive an reso- reflecting resolution such shortcom- lution of proper the case. It seems and ings recognized by bewill the court’s constructive in such cases for the defendant rejection. permitted to be to withdraw his defenses if the consequences be A limited to those civil is the certain filing case commenced of consequences agreement. fixed the petition out, It complaint setting or a among remains pass upon for the court to the things, other ad The an damnum. demand appropriateness sentence, of the agreed but inadequate! Realistically, seldom it is the product has the benefit of the of not expected recovery that ultimate will be negotiations. If one advocate or the great though so as the none can demand— able, other has less than the inappro- been assure the defendant that it will not. Even priateness agreement be can detected in apparent cases of liability, cautious de- agreement and the disapproved. permit fendants will not to go the case into filed, default. pleadings Defensive are emphasize I purpose that the of the nego- preparations urge are made to whatever tiations agreement upon ap- is to reach an may urged properly propriate be to defeat claim. properly sentence. While it process be said that the involves the offer settled, When case is such a defend- defendant, of concessions to the the ulti- ant, effect, agrees its change position to mate part prosecu- on the concession from one liability of no to a confession of tor is to uncertainty abandon inherent liability liability not ad dam- —but of advocating per- the maximum sentence num set out in the action. Instead the mitted join under the law and to with the defendant withdraws defenses if advocating sentence, defendant in a certain amount it pays limited to the certain through arrived negotiation, as the ap- agreement. amount fixed propriate particular one in the case. The In pure theory, where there no reason- prosecutor right to has advocate even able expectation defeating the asserted an inappropriately harsh sentence. The liability, a defendant would as well do to giving up right. concession of that is the default appear only damages. to contest The prosecutor has no right imposi- usually dictates, however, Prudence that it sentence, tion of the so he maximum cannot open floodgates not until assurance has concede any right bargaining such been obtained to how much water will process. The has the absolute rush through! right to By agree- advocate his innocence. however, My disagreement, make right. concedes that guilty, he judg- colleagues to our right practice he no unavailable guilty,

If Only plea agreement judicial systems. prac- and his if the the state acquittal, ment right. Proper- such would it be not a concession tice offends the Constitution conducted, bargaining involves the ly I conclude that does. forbidden. right adversary each concession view, which I believe point From exchange result to uncertain advocate one, prece- us review the to be the let certainty ought to be certainty. That dents. ought sentence. appropriate as to an Bargaining Plea II. Judge The Trial inappropriate leniency involve offer of defendant, derogation prose- to a challenging am I the constitu- way no society, nor threat duty cutor’s bargaining. Rath- propriety tional should the de- punishment inappropriate er, majority’s begin with my problems plead. prosecutor, The fendant decline bargaining. definition of alone, inappropriate make such an cannot negotia- is a prosecutor cannot con- offer or threat. prosecutor, judge, in which the tion what sentencing. decides trol jus- other in the criminal some official be. the sentence shall certain system tice offers the defendant obtaining right point to our exchange Central for an concessions admission plea bargaining view case is that of of this guilt. adversaries, legitimate the was not between added.) (Emphasis (At 875.) prosecutor represented by the the executive Supreme neither my knowledge, To the represented by

and accused defense the York, Court, see, v. g., e. New Santobello judge, proper whose role de- counsel. The 495, 257, 404 92 30 L.Ed.2d 427 U.S. S.Ct. neither, he be en- mands that adverse see, circuit, g., (1971), e. v. nor this Brown negotiations. given He was tered into the Beto, 1967), F.2d 950 has ever 377 description of the facts and circumstances con- plea bargaining. so defined To the charged and of crime plea bargaining in the trary, participation sufficient unto him for the determination process sharply limited to the ac- has been have appropriate an sentence.3 must prosecutor. cused and the proceeded, in judge for the been sufficient that, judicial capacity, his state Wisdom, Beto, Judge supra, v. Brown guilty, he plea based conviction writing that panel, concluded twenty years sentence of con- impose would safeguarded “[pjroperly discussions finement. agreements and between accused an and with the prosecutor are consistent court, judge as Presumably, Id., justice.” fair at 956 administration particular case that a determined in original.) He further conclud- (Emphasis twenty appropriate. sentence was Our year partici- should not ed that “[t]he vary can majority holds Id., 957, pate citing, discussions.” appropriateness solely determination Project Bar on Mini- American Association or not defendant elects to whether Justice, mum for Criminal Standards Stan- That advo- stand trial. makes an 3.3(a) powerful Relating Guilty, to Pleas of pleas, a most dards § cate of and Draft, 1968). Supreme bargain. agree. (App. I The Court has advocate in cannot conference, history pre- pertinent pre-trial criminal of the defendant 3. A attended and, consideration, sheet), siding Attorney, (rap Judge, due Assistant District after attorney, Judge presiding proposed At was held in Chambers. at- defense defense twenty torney years that conference that a sentence of exchange guilty. imposed in for a present- prosecution systematically ... Record, added.) I, (Emphasis against Vol. at 49. State ed merits of this case the factual Judge, together to the

897 plea bargaining exchange lan- guilty. described similar for a I guage.4 can come to no other but conclusion Pearce, 711, charges North v. 395 disposition

The criminal Carolina U.S. 89 agreement (1969) the prosecutor between and S.Ct. 23 L.Ed.2d 656 should called loosely accused sometimes control the outcome. “plea compo- is an bargaining,” essential Applicability III. Pearce justice. nent of the administration of outset, At the the essence Pearce must administered, Properly is to be encour- recently be made clear. It was articulated aged. Supreme Court. York, 257, 260, v. New 404 Santobello U.S. emphasized Court due 495, 498, (1971) S.Ct. L.Ed.2d 427 process such violation in cases as Pearce (Emphasis added.) Perry [Blackledge Perry, U.S. There is good reason for the exclusion of 94 S.Ct. (1974)] L.Ed.2d 628 plea bargain negotiation. the court from lay possibility that a defendant has been described might be deterred from the exercise of a “give-and-take negotiation ... between legal right, but rather [citations omitted] prosecution defense, argu- danger might State ably possess relatively equal bargaining retaliating against the accused for law- power.” v. Hayes, Bordenkircher 434 U.S. attacking fully his convictions. 357, 362, 663, 667, S.Ct. L.Ed.2d 604 (1978), Carolina, quoting, Parker v. North Hayes, 357, 363, Bordenkircher v. 434 U.S. 25 L.Ed.2d 785 663, 667-68, 54 L.Ed.2d 604 Brennan, (1969) (opinion J.). Likewise, the due violation in this Equal bargaining power is essential case is not based on the possibility that constitutionally bargaining. valid In- Jimmy Frank deterred from exercising deed, the Supreme Court has stated that trial, his constitutional but rather “plea bargaining mutuality flows from ‘the danger might on the that the State advantage’ prosecu- to defendants and retaliating against Jimmy Frank for law- tors, each own wanting with his reasons for fully choosing right to exercise to his trial. Hayes, to avoid trial.” Bordenkircher v. I wholeheartedly agree with the majority 363, 668, 434 U.S. at 98 S.Ct. at quoting, mere imposition longer “that the of a sen- States, 742, 752, Brady v. 397 United U.S. tence than defendant would have re- [the] 1471, 1463, (1969). S.Ct. 25 L.Ed.2d 747 pleaded ceived had he does not auto- advantage Unless this mutual exists the matically constitute unconstitutional pun- down; system breaks becomes (At Indeed, ishment.” 883.) in Pearce coercion. Supreme expressly rejected the Court the course, Of Frank Jimmy went to trial so notion that there exists absolute an consti- plea.5 is no allegation there coerced imposition tutional bar to the of a more however, Coercing plea, way a in one Id., severe sentence retrial. 395 U.S. judge may a trial violate the Consti- 723, at 89 S.Ct. at 2079. into intruding plea bargaining tution the noted, however, As Court Here, the the exist- are process. we confronted with an- ence retaliatory is extremely we must under motivation Specifically, other. decide 725, n.20, prove. a difficult Id. what circumstances at may impose S.Ct. Hence, penalty following when at 2080. the in harsher conviction Court Pearce re- has previously “proposed” appropriate quired an judge imposes that whenever a Here, ing puzzling majority quotes process. enough say It is the 4. that this it is that his language. (At 876.) participation triggered necessity for the protection in constitutional announced North require Pearce, 711, The facts of case do not us to 2072, 5. v. Carolina U.S. S.Ct. may determine to what extent a trial 23 L.Ed.2d 656 constitutionally participate plea bargain- prior dis- conviction or motivation to a defendant af- severe sentence more trial, doing for his so seeking new the reasons courage ter a criminal defendants from appear so affirmatively record must appellate review. legitimacy that the constitutional 417 U.S. Blackledge Perry, S.Ct. fully reviewed. increased sentence (1974), pros- 40 L.Ed.2d 628 focused on Id., at 2081. The reasons at like system in a two-tier ecutorial conduct “upon must be based ob- for enhancement ap- that in Colten. It found Pearce found concerning identifiable

jective information likeli- plicable there was “realistic because part on the the defendant occur- conduct part vindictiveness” on hood of original proceed- ring after the time 27, 94 prosecutor. 417 S.Ct. at U.S. of Pearce and its ing.” Id. A brief review pre- Specifically, process it held that due very vividly illustrates that progeny of a con- prosecutor’s vented a reindictment present same constitutional considerations felony charge on a victed misdemeanant present in Pearce are here. right after the defendant had exercised Kentucky, In Colten v. appeal the misdemeanor conviction (1972), the 32 L.Ed.2d 584 Court thus de novo. The Court to obtain trial applicability of Pearce to Ken- decided the prosecution’s underscored “considerable tucky’s system adju- of criminal two-tiered appeal. discouraging in Id. stake” Kentucky allows a misdemeanor dication. convicted in an inferior trial helpful In a discussion which in resolv- in a court seek a de novo court noted: this case Court jurisdiction. appellant in Col- general is, course, no evidence that There argued prevented ten Constitution prosecutor in faith this case acted in bad jurisdiction, general the court of after trial maliciously seeking felony indict- novo, imposing de from a sentence excess against Perry. ment The rationale of our imposed of original the court however, case, judgment Pearce rejected Pearce trial. The court analo- grounded upon proposition gy. The found Court contrast must retaliatory that actual motivation Pearce, the in- Rather, emphasized we inevitably exist. creased sentence after retrial in Colten was of such that “since fear vindictiveness judgment original one whose had reversal; thus, may unconstitutionally deter a defend- prompted appellate there an possibility was little that an increased sen- appeal ants’ exercise of the tence on trial de novo could have been conviction, collaterally attack his first personal motivated vindictiveness on the requires due also that a defend- sentencing judge. part free of apprehension ant be of such retaliatory part motivation 17, Stynchcombe, 412 In Chaffin v. U.S. 1977, sentencing judge.” (1973), 714 93 S.Ct. 36 L.Ed.2d Georgia’s applicability jury of Pearce to Id., 28, 2102, quoting, at 94 at North S.Ct. Upon was sentencing system urged. retrial 725, Pearce, 711, v. 395 89 Carolina U.S. following original the reversal of his convic- 2080, (1969). L.Ed.2d S.Ct. 23 656 Chaffin, tion, was the defendant recon- emerge lessons from these cases. Several greater to victed and sentenced term than First, analysis nec- under Pearce it is not jury. imposed by had been the initial The retaliatory to essary demonstrate “actual again Court focused on the issue of vindic- discussed, previously As motivation.” holding tiveness in that Pearce was not Rather, impossible. virtually would be dispositive. jury It noted that the second presence court should focus on the or ab- completely original was unaware of sen- sence of a “realistic likelihood vindictive- tence, hardly sought thus could have to likelihood, assessing ness.” In such a “punish” appeal. Chaffin his successful those Moreover, imposing Court has focused on jury, judge unlike a who had taking appeal, been reversed on had no stake in the second sentence or the second action. See judge Project Where a different ABA different on Minimum Standards Colten v. court, Justice, Kentucky, supra, Criminal Relating or a dif- Standards 3.3(a) Pleas of Guilty 1968); Stynchcombe, supra, Chaffin v. jury, (App.Draft ferent § Note, Bargaining and the Transforma impose the new possibility sentence the Process, tion of the Criminal 90 Harv.L.Rev. remote; vindictiveness is hence no due In effect he became a third hand, process violation. On the other bargainer with a position.6 well-defined judge where the imposing same both the He “personal process had a stake” in the sentence, North Carolina first and second v. being way resolved his and therefore a “mo Pearce, supra, prosecutor’s same of- tivation to engage in self-vindication.” Fi writing fice both the first and second in- nally, he had an “institutional interest” in dictment, Blackledge Perry, supra, v. imposing punishment through the sentenc likelihood of vindictiveness is sufficient ing process discourage may what he well protection process. invoke the of due aas meritless trial. See Chaf have viewed Stynchcombe, supra, Chaffin v. draws fin Stynchcombe, at U.S. this sharply. distinction short, at 1983. the very same indicia of Thus, jury, judge unlike the who has in Pearce vindictiveness present that were reversed, personal been will have no stake present are here. prior conviction and no motivation not, should be made clear that I am engage in self-vindication. Similarly, Pearce did not, presuming jury unlikely to be sensitive to the Rather, was vindictive. the “realistic might institutional interests that occasion likelihood” that he could have compels been higher sentences desirous of the rule that he must affirmatively state discouraging regards what he as meritless imposing his reasons for a harsher sentence. appeals. Majority’s IV. The Treatment of Pearce Id., 412 U.S. at avoids Pearce majority by flatly de- In the judge pro- instant case the trial claring that “completely inapplicable posed a twenty years sentence of to defend- post-plea bargain sentencing proceed- ant’s exchange counsel in for a guilty plea. (At 885.) If ings.”7 such a case were In so doing, impaired his impartiality. might before us I agree. case, well In this situation, Judge pated Rather, plea bargaining process. 6. Confronted with a similar judicial Weinfeld described the role as 24-year follows: Martin contended that the sentence im- judge’s prime responsibility posed following guilty plea actually A is to main- integrity judicial system; tain the original more severe than his life sentence. law, equal protection see that due rejected argument holding The court safeguards of the laws and the basic of a fair “appellant greater receive no [could] upheld. trial are stands as the following original than he received convic- symbol justice of evenhanded .... tion.” 606 F.2d at 93. Giliigan, United States ex rel. Elksnis v. that, complete We have seen accord with F.Supp. (S.D.N.Y.1966). Clearly, Pearce, a defendant who has obtained a new judge adopts position when the an adversarial trial after conviction face harsher sentenc- plea bargaining process in the promised. this role is com Thus, after retrial. it is not at all inconceiv- that, retrial, awaiting plea bargain able while supported by 7. This might statement is said to be providing greater be reached for a sen- Blackburn, Martin v. 606 F.2d would, appropriate, tence. if take into 1979), cert. denied 446 U.S. account facts discovered since the first sen- sup 64 L.Ed.2d 265 While Martin does tence. The Martin was not faced with statement, port context, the in its it nowhere situation; bargained such a the sentence was upon any pertinent touches issue to the case original not so severe as the sentence. here under consideration. I am unable to see how Martin offers us petitioner pled guilty pursuant In Martin the guidance deciding at all in the result of a plea agreement to a after his initial conviction judge’s offering to sentence a defendant to one appeal awaiting was reversed on and he was term of if confinement convicted on a plea agreement retrial. The was the exclusive imposing greater upon and then term product negotiations prosecu- between the conviction after trial. allega- tion and the defense. There were no judge impermissibly partici- tions that the trial proposed what he the fence over however, judge has entered trial the adversary; an process as 915. bargaining 605 F.2d at bargaining sessions.” hence, simple “post-plea have a we do differently, is not sufficient there Stated sentencing proceeding.” bargaining identifia- “objective concerning information supra, of the defendant” Hayes, part relied ble conduct on the

Bordenkircher supports majority, our by the extensively impose a harsher by Pearce to required as Perry and Referring to Pearce position. sentence.9 the Court states: opinion number majority discusses a dealing Court was with cases the In those finding might which be taken as subjects imposition pen- the unilateral State’s reasons, not sufficient that there existed who had chosen to alty upon a defendant judge, increas- trial earlier known the legal origi- to attack his exercise clear, however, that ing the sentence. It is “very different nal conviction-a situation finally its of the district court affirmance negotiations give-and-take from the following: the rests plea bargaining between the common in defense, arguably prosecution and provided Even if the trial no additional relatively equal bargaining pow- possess character, the mere fact evidence of er.” [Citation omitted.] acknowledge Jimmy Frank refused (Emphasis 98 S.Ct. at 434 U.S. at guilt willingness to as- and showed no added.) responsibility for his conduct sume or not here is whether a “uni- The issue the judge have led conclude penalty upon a de- imposition lateral for rehabilita- potential defendant lacked judge when the an- fendant” occurred imposition of a justifying tion thus the This case his “second” sentence. nounced ex- greater that offered in sentence than “give-and-take nothing to do with the has change guilty plea. for a bargaining be- negotiation common in (At 885.) Rath- and defense.” prosecution tween the cases, er, may, judge our is to evaluate the constitution- I that a in some task submit entry defendant, into that ality judge’s of the trial find the contrite attitude sum, be distin- process.8 In if Pearce could expressed by acknowledging guilt by certainly not be guished refer- things, worthy of in fix- other consideration involving bargaining ence to situations ing stand a sentence. But the election to prosecution. the accused the guilty may not be trial rather than V. The Record sought who punished by has away persuade bargain the defendant agree panel “that I Only if the record contains to increase defendant’s sen- that election.10 lacked reason signif- problem majority’s appreciate I have no with this statement-assum- 8. The failure to judge’s involvement in this icance of the trial is between the accused analysis Here, rejected lengthy prosecution. in a was case bargaining. resulted offer the proposed Hence, example: judge. a to- For we have tally set of issues. bargain-whether different it be Once charges, reduced sentence, some a recommended judge’s if also be noted that It should however, rejected, other concession-is imposing than a harsher sentence reasons complain cannot denial of stated, initially affirmatively proposed were punishment rejected offer constitutes Pearce, disputes concerning required judicial vindictiveness. To ac- evidence would be minimized. record cept ignore complete- argument such an is to ly underlying purpose philosophy and opinion quoted part plea bargaining system. is modi- 10. How If a successfully leniency The ma- a later statement unclear. can the same fied demand sentencing jority says, standing “The which followed after prior trial to him offered exchange plea, all saw trial for a merits to trial possession only plea bargain disappear; more of the detailed the the not incentives to itself, by nothing going but flavor of the offense has to lose facts upon any impact victims.” and the trial. the event required RUBIN, articulable facts as Pearce can Circuit Judge, with whom RAN- DALL, reviewing pun- certain such Judge, joins, a court be that Circuit dissenting. ishment not been form All bargaining, whether for reduced sentence. of an enhanced sentences, elimination of counts or for less VI. Conclusion offenses, er negotiation involves for an ad mission of guilt a criminal offense in majority agree I with the that this case promise return for a of benefits from the potentially devastating impact a could have compromises state. bargaining Such both plea bargaining process. the If a the state’s interest in law enforcement and negotiator, judge, third trial is added the personal liberty. individual’s toler It is process plea bargaining its constitution- only exigencies able because of the our collapse. Supreme al foundation will law enforcement mechanisms and of our repeatedly emphasized Court has system of However, criminal courts. save bargaining negotiation is based on between for the negotiated, fact the result is equal bargaining pow- two adversaries with plea bargaining is fundamentally participant, er. The addition third different compromise from the civil especially ultimately litigation. one entrusted with defendant, values, sentencing the can stakes recon- interest of society are process. Rubin, ciled with due all different. See How We Can Improve Judicial Treatment of In precedent approving is no There offer dividual Cases Without Sacrificing Individ concessions, necessarily coupled with the Rights: ual The Problems of the Criminal withdrawal, of their threat trial Law, The Pound Perspectives Conference: judge. approved Where courts have on Justice in the (A. Future Leo Levin & R. plea bargaining State,” “the they in- Wheeler, 1976),reprinted eds. in 70 F.R.D. plea bargaining by volve the executive. 177, 183-86(1976), at and the authorities judge The trial “the state” in a ease Therefore, cited I therein. join cannot in styled Doe.” “State v. John Part I my brother Hill’s dissent. case, specific In this constitutional agree I fully, however, analysis with his danger judge is that a trial has “pro- who III, II, in Parts IV and V and the conclusion posed” exchange a sentence a guilty he reaches. A joins trial who punish the refusing will defendant for enters contest A bargain. who makes accept infinitely greater bargaining power than proposal longer such a detached and no He accused. is seldom completely neu- neutral; he has acquired “personal a stake” tral: public absent interest trial Pearce, process the outcome. As “due case, particular it is in his interest to dis- requires ... defendant be freed [the] pose thus, and, without cases ... apprehension retaliatory moti- clear his docket with minimal effort. he If part sentencing on the judge. vation may offer the defendant a deal “Id., in return 395 U.S. at then, for a guilty plea, Hence, prof- when this judge imposes whenever a a more rejected, fer is impose greater sentence, severe sentence than he justifiable reasons, without stated and proposed, originally doing the reasons for so not only pressure exerts “objective must be based coercive information on accused concerning but affects part detrimentally identifiable conduct on the the ad- justice ministration of of the defendant” which came his atten- in his court. The original proposal. cogniscenti tion after the These criminal defense quickly rea- will that, learn sons must be recorded at the time of sen- when judge’s proffer re- tencing. jected, defendant, As I convicted, find record devoid of pay if will higher such reasons I would reverse the price. District It is a denial of due Court. for the judge thus to stain robes. (At 885). met, If this means did, standards were I would dissent

indeed, reading receive more articulable information af- reason of a different of the record. “offer,” year ter his 20 and that Pearce notes also v. Alli- See reject prosecu- accept is free to

Case Details

Case Name: Jimmy Frank v. Frank Blackburn, Warden, Louisiana State Penitentiary

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 17, 1980

Citation: 646 F.2d 873

Docket Number: 78-3452

Court Abbreviation: 5th Cir.