No. The prosecutor can't do that. It is unfair to scare people away from using their legal right to a new trial. If people think they'll be punished with a worse charge just for appealing, they won't do it. This fear of retaliation violates their right to a fair process, even if the prosecutor wasn't actually trying to be mean. Also, the fact that Perry pleaded guilty to the bigger crime doesn't matter, because the government never should have been allowed to charge him with it in the first place.

Yes, the prosecutor should be able to do that. A prosecutor's job is to be an opponent in court, and they might have good, non-revengeful reasons for bringing a bigger charge in a higher court. More importantly, because Perry pleaded guilty to the more serious crime, he gave up his right to complain about it later. This decision messes with the rule that a guilty plea is the end of the story for earlier issues in a case.

Yes, it's against the law. The government can't charge someone with a more serious crime just because they appealed a lesser conviction, especially if it looks like they're doing it to be mean. This punishes them for using their right to appeal, which isn't fair. Perry pleading guilty to the more serious crime doesn't stop him from arguing that his rights were violated, because the law protects him from being unfairly brought to court on the bigger charge in the first place. If it's shown that the prosecutor was being spiteful, the charges might even be thrown out.

The majority is too quick to assume the prosecutor acted out of spite, like the judge in the Pearce case. The prosecutor might have had other reasons for seeking the felony charge after Perry asked for a new trial. The majority's solution goes too far beyond the problem they point out.

Also, based on the Tollett v. Henderson case, Perry's guilty plea should prevent him from separately claiming a due process violation that happened before the plea. The majority's reasoning could make guilty pleas less final, which is bad for both prosecutors and defendants who make plea deals.

If Perry's claim falls under the Pearce case, the solution should be sending the case back for a new sentence, not completely canceling the conviction. The majority's decision might mean Perry gets no punishment at all, even though he pleaded guilty to a serious charge.

A defendant who pleads guilty may challenge "the very power of the State to bring the defendant into court to answer the charge against him."

It is a violation of due process for a prosecutor to respond to a defendant's statutory right to appeal by bringing a more serious charge against him

—the defendant exercised his statutory right to a trial de novo after conviction of a misdemeanor in a lower court.

—after a guilty plea, a defendant may not "raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea

"[T] he Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of `vindictiveness.'"

—and thus obtaining a trial de novo in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources before the defendant's conviction becomes final, and may even result in a formerly convicted defendant's going free. And, if the prosecutor has the means readily at hand to discourage such appeals—by `upping the ante' …

A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.

—the same prosecutor sought and obtained an indictment on a felony charge against a defendant after the defendant appealed a prior misdemeanor conviction.

To invoke such a presumption, a defendant must show that the circumstances "pose a realistic likelihood of `vindictiveness.'"

No doubt, if it can be demonstrated that a prosecutor vindictively charged a defendant, the charges may be dismissed as a violation of the defendant's constitutional rights.

Yes. The Due Process Clause of the Fourteenth Amendment prohibits the state from bringing a more serious charge against a defendant in response to their exercise of an appellate right. While there is no evidence of actual bad faith by the prosecutor, the rationale from North Carolina v. Pearce applies; the fear of prosecutorial vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal. A prosecutor has a considerable stake in discouraging appeals, which require increased resources and risk acquittal, and 'upping the ante' with a felony charge is a powerful tool to deter defendants. Furthermore, Perry's guilty plea to the felony did not waive this constitutional claim, because the due process violation went to the very power of the State to bring him into court on that charge at all, distinguishing it from antecedent procedural violations that are waived by a guilty plea under Tollett v. Henderson.

No. The Court improperly equates the role of a prosecutor with that of a judge in North Carolina v. Pearce. A prosecutor is an adversary and may have legitimate, non-vindictive reasons for bringing a more serious charge in the Superior Court, which has jurisdiction over felonies, that were unavailable in the initial District Court trial. More importantly, under the principles of Tollett v. Henderson, Perry’s guilty plea constituted a break in the chain of events and should foreclose his ability to raise this antecedent constitutional claim. The Court's distinction that this claim goes 'to the very power of the State' is semantic and creates an unwarranted departure from the rule that a voluntary guilty plea waives such claims.

Yes. The Due Process Clause is violated when a state responds to a defendant's invocation of their statutory right to appeal by bringing a more serious charge against them prior to the trial de novo, as it poses a realistic likelihood of vindictiveness. This is impermissible because it deters a defendant's exercise of their right to appeal and subjects them to increased punishment. Perry's guilty plea to the felony charge does not preclude him from attacking his conviction through federal habeas corpus, as the plea cannot waive the due process right not to be haled into court on the more serious charge in the first place. If prosecutorial vindictiveness is demonstrated, the charges may be dismissed.

The majority too readily equates the prosecutor's role with that of the judge in Pearce and passes too lightly over the reasoning in Colten v. Kentucky. Unlike in Pearce, the prosecutor here may have had non-vindictive reasons for seeking the felony indictment after Perry invoked his right to a trial de novo. The majority's remedy reaches beyond the identified wrong. 

Further, under Tollett v. Henderson, Perry's guilty plea should foreclose independent inquiry into the claimed due process violation, which occurred prior to the plea. The majority's reasoning could undermine the finality of guilty pleas, to the detriment of both prosecutors and defendants who engage in plea bargaining.

If Perry's claim is properly analyzed under Pearce, the remedy should be a remand for resentencing in accordance with due process, not an annulment of the conviction. The majority's decision may result in no penalty being imposed at all, in spite of Perry's guilty plea to a serious charge.

Blackledge v. Perry

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