This is а petition for a writ of error brought under G. L. c. 250, §§ 9-13. The petitioner Eric Mann was found guilty on each of three complaints of assault and battery in the District Court and was sentenced to one year in the house of correction on еach complaint, the sentences to run concurrently. Pursuant to G. L. c. 278, § 18, the *662 petitioner appealed to the Superior Court where he was found guilty on each of the three complaints and sentenced to two yeаrs imprisonment on one complaint, with similar two year sentences on the other two complaints suspended for three years, to run from and after the expiration of the original sentence. Three principal issues arе presented for our determination.
1. Whether the validity of the Superior Court sentence may be challenged by a writ of error when the petitioner has not perfected an appeal under G. L. c. 278, § 28, or G. L. c. 278, §§ 33A-33G. 1
2. Whether the impоsition of a higher sentence is in violation of “due process” in the absence in the record of “objective information concerning identifiable conduct on the part of the petitioner occurring after the time оf the original sentencing proceeding in the district court.”
3. Whether the imposition of a higher sentence by the Superior Court after a de nova trial imposes an impermissible burden on the petitioner’s constitutional right to a jury trial.
Due Process.
The petitioner relies on
North Carolina
v.
Pearce,
*663 In some instances legal error on the part of a District Court judge might be a motivating factor in an appeal to the Superior Court. In the vast majority of cases, the appeаl is, in reality, grounded on the lower court’s factual determination of the defendant’s guilt, and on the judge’s assessment of punishment. Thus, in effect, by appeal the defendant has “two bites at the cherry.” If he prefers not to disclose his defence in the District Court he can hear the Commonwealth’s case and, if convicted, appeal. He can achieve the same result by admitting to a finding, claiming an appeal if dissatisfied with the sentence, and thereby obtаining a trial de nova upon a clean slate.
The petitioner complains that the procedure has a chilling effect on his right.of appeal. “In answering this question we must have in mind that a defendant gives up nothing by going to trial in the district court. . . . Looking at the total circumstances, where the state offers the defendant a full trial, with full right of appeal therefrom, in the Superior Court, we do not think it unreasonable for it to restrict the appeal from the district сourt in the sense here complained of. . . . The state’s two step procedure has a legitimate purpose.”
Lemieux
v.
Robbins,
In dealing with this problem the United States Supreme Court in the
Pearce
case stated that “the guarantee against double jeopardy imposes no restrictions upon the length of a sentence imposed upon reconviction.” P. 719. It dismissed an alternative argument by saying that “[t]o fit the problem
*664
of this case into an equal protection framework is a task too Procrustean to be rationally accomplishеd.” P. 723. The Supreme Court has held only that channels of appellate review, once established, “must be kept free of
unreasoned distinctions
that can only impede open and equal access to the courts.
Griffin
v.
Illinois,
In Massachusetts, the legislation permits a de nova Superior Court trial for the defendant in all aspeсts of the case but it does not provide a method of reviewing error of law committed in the course of the trial in the District Courts. 2 See G. L. c. 250, § 9. It is reasonable to conclude that the Legislature intended that, upon appeal, the question of guilt, the sentencing power and all related matters be transferred to the Superior Court for determination completely divorced from the record of the prior trial. 3 We need not speculate whether convictions in the District Court resulted from error. The legislative intent is clear that the sentence in the Superior Court upon retrial and after conviction shall be pronounced only after the fresh introduction of evidencе against the defendant. Thus, the reasoning in the Lemieux case is applicable to the instant case. A defendant not only “gives up nothing by going to trial in the district court” but he actually gains the distinct advantage of a preview of the prosecution’s case without having to disclose his own. *665 If he is found guilty he can appeal. If he is found not guilty that is the end of the case because “double jeopardy” precludes an appeal by the State.
Vindictiveness.
Irrespective of the holdings in the
Pearce
case, allegаtion and proof of vindictiveness on the part of a judge may be a violation of due process in
any
case. This is true whether the sentence is pronounced following the first trial or after a second trial on appeal. In the instant case there is no allegation of vindictiveness on the part of the judge, much less proof of such conduct. See
Moon
v.
Maryland,
In the absence of facts and circumstances peculiar to the
Pearce
case, there is no duty upon a judge to establish on the record absence of vindictiveness. To require so demeaning а procedure would serve to erode the inherent authority and discretionary power of our trial courts. In
Moon
v.
Maryland,
State Interest.
The petitioner argues that the State has no legitimate objective in imposing a procedure which has a “сhilling effect” on the right to appeal because of the fear of greater punishment. We have previously discussed the issue of “chilling effect.” We believe that the State does have a further legitimate interest in the prоcedure and that is to maintain the orderly and effective administration of criminal justice. The State also has a legitimate interest in discouraging frivolous appeals and so long as the enabling legislation is not arbitrary and unreаsonably discriminatory, there is no constitutional infirmity.
Rinaldi
v.
Yeager,
*667 Jury Trial.
We do not agree with the petitioner’s contention that the imposition of a greater sentence аfter a de nova trial unconstitutionally burdens his right to a jury trial. Legislation which permits a de nova trial with the possibility of a harsher sentence is not arbitrary or unreasonable so as to interfere with the right to a jury trial. The right of appeаl under G. L. c. 278, § 18, is not discriminatory. It is available to
every
defendant and all those who avail themselves of the right to a de nova trial are equally subject to a greater sentence. Other reasons why no unconstitutional burden is imposed on thе petitioner’s right to a jury trial we have previously discussed in connection with the petitioner’s right to appeal. See
Hicks
v.
Commonwealth,
Judgments affirmed.
Notes
We pass this procedural question. The Commonwealth’s position is that, “Since the resolution of this issue is important for the administration of justice . . . this Court should decide the main issue.” We agree.
In Maine, for example, the setting for
Lemieux
v.
Robbins,
While it is true that in Massachusetts the defendant cannot waive a trial at the District Court level, he can, however, avoid a trial by admitting а finding of guilt and appeal or he can listen to the Commonwealth’s evidence and rest and then appeal if found guilty.
See
Duncan
v.
Louisiana,
The judge stated: “The attacks on the victims were vicious and prеmeditated. Homicide is merely an assault and battery that ends in death. This defendant is lucky that none of the victims here had a weak heart or a weak artery.
“I am loath, always loath, to impose a sentence that is higher in this court than the sentence that was imposed in the lower court because no defendant should be prejudiced certainly because he claims his right to a jury trial, but what the posture of the evidence was in the lower court is one thing, but as the evidence came in here I was shocked at the viciousness of the attacks, and I have taken that into consideration in imposing sentence.”
United States
v.
Gambert,
Lemieux
v.
Robbins,