Defendant Has Remedy for Breached Plea Bargain
SANTOBELLO v. NEW YORK, Supreme Court of the United States (1971), 404 U.S. 257, 92 S.Ct. 495
FACTS:
The State of New York returned two felony indictments against Santobello in which he was charged with promoting gambling and possession of gambling records. Defendant's attorney and the prosecutor subsequently concluded plea bargaining which Santobello agreed to plead guilty to a lesser-included offense involving the possession of gambling records. Although the maximum sentence upon conviction was one year in prison, the plea bargain required the prosecutor to make no recommendation whatsoever concerning the sentence.
The defendant properly appeared before the court, represented that the plea was voluntary, and admitted his guilt to the lesser-included offense. The court delayed imposition of any sentence due to the lack of a presentence report.
Approximately three months passed without further action by the court. In the interim period, Santobello retained new legal counsel who viewed the legal posture of the case in a different light. He immediately filed a motion to withdraw the guilty plea and alleged that some of the state's evidence had been obtained in violation of defendant's Fourth Amendment rights. The net effect of the motion continued the case until January 1970.
Because the original judge had retired, Santobello appeared at this sentencing hearing before a different judge. After rejecting defendant's renewed motions for withdrawal of his guilty plea and for suppression of evidence, the judge listened to a new prosecutor recommend the maximum one-year sentence. Santobello's counsel argued that the original agreement required that no recommendation concerning sentence be made. The different prosecutor noted that no notation existed in his records relative to sentence recommendation. The sentencing judge refused to entertain the defendant's objections to the sentence recommendation. He felt that the maximum sentence was appropriate and would not have imposed a different sentence regardless of the recommendation or lack of recommendation by the prosecution.
The Supreme Court of New York, Appellate Division approved the proceedings of the trial court and New York's highest court refused permission for appeal. The Supreme Court of the United States granted certiorari.
PROCEDURAL QUESTION:
Where a guilty plea in the context of a plea bargain rests on the material promises of the prosecution, must such promise either be fulfilled or the defendant permitted to withdraw the guilty plea?
HELD: Yes.
RATIONALE:
Mr. Chief Justice BURGER delivered the opinion of the Court.
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This record represents another example of an unfortunate lapse in orderly prosecutorial procedures, in part, no doubt, because of the enormous increase in the workload of the often understaffed prosecutor's offices. The heavy workload may well explain these episodes, but it does not excuse them. the disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called "plea bargaining," is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.
Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. See Brady v. United States, 397 U.S. 742, 751-752, 90 S.Ct. 1463, 1470-1471, 25 L.Ed.2d 747 (1970).
However, all of these considerations presuppose fairness in securing an agreement between an accused and a prosecutor. . . . The plea must, of course, be voluntary and knowing, and if it was induced by promises, the essence of those promises must in some way be made known. There is, of course, no absolute right to have a guilty plea accepted. Lynch v. Overholser, 369 U.S. 705, 719, 82 S.Ct. 1063, 1072, 8 L.Ed.2d 211 (1962); Fed.Rule Crim.Proc. 11. A court may reject a plea in exercise of sound judicial discretion.
This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.
On this record, petitioner "bargained" and negotiated for a particular plea in order to secure dismissal of more serious charges, but also on condition that no sentence recommendation would be made by the prosecutor. It is now conceded that the promise to abstain from a recommendation was made, and at this stage the prosecution is not in a good position to argue that its inadvertent breach or agreement is immaterial. The staff lawyers in a prosecutor's officer have the burden of "letting the left hand know what the right hand is doing" or has done. That the breach of agreement was inadvertent does not lessen its impact.
We need not reach the question whether the sentencing judge would or would not have been influenced had he known all the details of the negotiations for the plea. He stated that the prosecutor's recommendation did not influence him and we have no reason to doubt that. Nevertheless, we conclude that the interest of justice an appropriate recognition of the duties of prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration. The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances o this case require only that there be specific performance of the agreement of the plea, in which case petitioner should be represented by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i.e., the opportunity to withdraw his plea of guilty. We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor. . . . .
The judgment is vacated and the case is remanded.
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Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr. Justice STEWART join, concurring in part and dissenting in part.
I agree with much of the majority's opinion, but conclude that petitioner must be permitted to withdraw his guilty plea. This is the relief petitioner requested and, on the facts set out by the majority, it is a form of relief to which he is entitled.
There is no need to belabor the fact that the constitution guarantees to all criminal defendants the right to a trial by judge or jury, or, put another way, the "right not to plead guilty," United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138 (1968). This and other federal rights may be waived through a guilty plea, by such waivers are not lightly presumed and, in fact, are viewed with the "utmost solicitude." Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). Given this, I believe that where the defendant presents a reason for vacating his plea and the government has not relied on the plea to its disadvantage, the plea may be vacated and the right to trial regained at least where the motion to vacate is made prior to sentence and judgment. In other words, in such circumstances I would not deem the earlier plea to have irrevocably waived the defendant's federal constitutional right to a trial.
Notes
1. According to Santobello, with whom does the decision rest when the determination must be made concerning whether to grant specific performance of the plea agreement or to allow a withdrawal of the plea? Should the defendant have the option when the government has breached the plea agreement?
2. In a federal prosecution pursuant, to Rule 11 of the Federal Rules of Criminal Procedure, the court must personally address the defendant to determine whether the plea offered has been tendered voluntarily and intelligently Specifically, the court must discern that the defendant understands the nature of the charges, the potential penalty, the fact that a guilty plea waives specified other constitutional rights, including the right to a trial, and that the defendant has the right to plead not guilty. In a case mentioned in the introduction to this section, McCarthy v. United States, 394 U.S. 459 (1969), the Supreme Court reversed the defendant's conviction on the ground that the failure of the trial court to address the defendant personally created inherent prejudice dictating a reversal.
3. What happens if the defendant breaches the plea agreement? Can the government specifically enforce the plea bargain? What if the defendant will not cooperate as the government believes he or she should? In Ricketts v. Adamson, 483 U.S.1 (1987), defendant testified against co-felons at their initial trial in fulfillment of his negotiated plea. As part of the bargain:
"The agreement specifies in two separate paragraphs the consequences that would flow from respondent's breach of his promises. Paragraph 5 provides that if respondent refused to testify, "this entire agreement is null and void and the original charge will be automatically reinstated."
Pursuant to the agreement, the trial court sentenced defendant. However, he balked at testifying against his co-felons a second time when the first trial verdict was overturned. The state filed new charges against the defendant since it viewed the plea agreement null and void. Defendant was convicted of capital murder and sentenced to death. This procedure was upheld by the Supreme Court since the defendant knew the consequences of failure to abide by the original plea agreement because its terms stated clearly that ". . . in the event of respondent's breach occasioned by a refusal to testify, the parties would be returned to the status quo ante . . ."
Executory Plea Bargain May Be Withdrawn by Prosecution
MABRY v. JOHNSON, Supreme Court of the United States (1984), 467 U.S. 504, 104 S.Ct. 2543
FACTS:
Late on May 22, 1970, the defendant-respondent George Johnson and two companions were in the process of burglarizing an occupied dwelling when the residents unexpectedly returned. In the ensuing affray, the opposing parties exchanged gunshots with the result that the daughter of the occupier of the home lost her life. Defendant and the father of the deceased were wounded.
The defendant-respondent stood trial for burglary, assault, and murder and was convicted of all three crimes. Subsequently, the Arkansas Supreme Court set aside the murder conviction. The prosecutor's officer and defendant, through counsel, entered into plea negotiations. Defendant remained in custody for the other convictions.
Prior to trial, the prosecutor had offered to permit defendant to plead guilty to the charge of being an accessory after the fact to a felony-murder with a recommended sentence of 21-years to be served concurrently with the burglary and assault sentence. After consultation with defendant, the plan appeared acceptable so the attorney for defendant communicated the acceptance to the prosecutor. Immediately, the prosecutor withdrew the original offer and substituted an alternative offer of the same guilty plea, but with a sentence of 21-years consecutive to the present sentence.
Following unsuccessful plea negotiation, Johnson's trial followed, but the judge declared a mistrial. Ultimately, defendant decided to accept the prosecutor's second offer, but initiated state remedies designed to enforce the state's first offer.
When state remedies failed, defendant-respondent filed a petition for a writ of habeas corpus with the appropriate federal district court. Ultimately, the Court of Appeals was persuaded of the merits of the case and reversed the district court. The Court of Appeals determined that fairness precluded the prosecutor from withdrawing an offer of a plea which had been accepted. The Supreme Court granted certiorari.
PROCEDURAL QUESTION:
Does the acceptance of a prosecutor's offer of a plea bargain create a constitutional right to have the bargain specifically enforced where the prosecutor withdraws the offer?
HELD: No.
RATIONALE:
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A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution. Only after respondent pleaded guilty was he convicted, and it is that conviction which gave rise to the deprivation of respondent's liberty at issue here.
It is well-settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked. It is also well-settled that plea agreements are consistent with the requirements of voluntariness and intelligence - because each side may obtain advantages when a guilty plea is exchanged for sentencing concessions, the agreement is no less voluntary than any other bargained-for exchange. It is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired.
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Thus, only when it develops that the defendant was not fairly apprised of its consequences can his plea be challenged under the Due Process Clause. Santobello v. New York, 404 U.S. 257 (1971), illustrates the point. We began by acknowledging that the conditions for a valid plea "presuppose fairness in securing agreement between an accused and a prosecutor. . . . The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known." Id., at 261-262. It follows that when the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand: "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Id., at 262.
Santobello demonstrates why respondent may not successfully attack his plea of guilty. Respondent's plea was in no sense induced by the prosecutor's withdrawn offer; unlike Santobello, who pleaded guilty thinking he had bargained for a specific prosecutorial sentencing recommendation which was not ultimately made, at the time respondent pleaded guilty he knew the prosecution would recommend a 21-year consecutive sentence. Respondent does not challenge the District Court's finding that he pleaded guilty with the advice of competent counsel and with full awareness of the consequences - he knew that the prosecutor would recommend and that the judge could impose the sentence now under attack. Respondent's plea was thus in no sense the product of governmental deception; it rested on no "unfulfilled promise" and fully satisfied the test for voluntariness and intelligence.
Thus, because it did not impair the voluntariness or intelligence of his guilty plea, respondent's inability to enforce the prosecutor's offer is without constitutional significance.
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The judgment of the Court of Appeals is reversed.
Notes
1. Why would a prosecutor withdraw a plea bargain once it had been offered? Could you conceive of powerful reasons for a prosecutor to retract an offer even after its terms have been communicated to the other side?
2. Why should a plea bargain made by a defendant who has been properly advised by competent counsel, not be subject to collateral attack? Would this process allow a defendant to plead guilty and later hope to obtain a trial when evidence has become less strong? Would there ever be reasons why a plea bargain should be subject to a collateral attack?
3. If a prosecutor can withdraw an offer of a negotiated plea after acceptance by the defendant, should the prosecutor be permitted to withdraw a plea bargain after a judge has accepted the plea? Why not allow the later if the former procedure is permissible? Has the defendant relied to his detriment in the case of a plea bargain which a court has accepted?
Prosecution May Threaten Lawful Strategy to Induce Plea Agreement
BORDENKIRCHER v. HAYES, Supreme Court of the United States (1978), 434 U.S. 357, 98 S.Ct. 663
FACTS:
A grand jury indicted Paul Hayes on a charge of uttering a forged instrument, an offense for which the penalty was two to ten years incarceration. Subsequently, Hayes, his attorney, and the Commonwealth Attorney met to discuss the possibility of a negotiated plea. The Commonwealth Attorney offered a sentence recommendation of five years incarceration in return for a guilty plea to the indictment. When Hayes did not appear to be interested in the offered terms, the Commonwealth Attorney stated that if the defendant-respondent would not accept the plea bargain, the attorney would procure an additional indictment pursuant to Kentucky's recidivist statute.
Under the habitual offender statute, a person who has been convicted of three felonies could be sentenced to prison for life. Concededly, Hayes had two prior felony convictions and, if convicted on the uttering charge, would qualify for a life sentence. As the Commonwealth Attorney phrased it, he wanted Hayes to plead guilty to "save the court the inconvenience and necessity of a trial." Hayes refused the tendered offer to plead guilty, whereupon, the grand jury indicted him under the habitual offender statute.
In due course, a jury trial resulted in Hayes' conviction of uttering a forged instrument and, upon a separate finding that Hayes had two prior felonies, a life sentence.
The Kentucky Court of Appeals dismissed Hayes' constitutional objections to the life sentence and upheld the prosecutor's decision to pursue the habitual offender penalty as the legitimate use of pressure in the context of a plea bargaining situation. The Federal District Court refused to issue a writ of habeas corpus but the Court of Appeals for the Sixth Circuit reversed the judgment. The Court felt that the prosecutor had violated the principles of Blackledge v. Perry, 417 U.S. 21, which granted defendants protection from the vindictive exercise of prosecutorial discretion. The Supreme Court granted certiorari.
PROCEDURAL QUESTION:
Has a government prosecutor violated the due process right of an indicted defendant when, with the express purpose of inducing a guilty plea, the prosecutor threatens and then procures an additional valid indictment?
HELD: No.
RATIONAL:
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III
We have recently had occasion to observe: "Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned." Blackledge v. Allison, 431 U.S. 63, 71. The open acknowledgment of this previously clandestine practice has led this Court to recognize the importance of counsel during plea negotiations, Brady v. United States, 397 U.S. 742, 758, the need for a public record indicating that a plea was knowingly and voluntarily made, Boykin v. Alabama, 395 U.S. 238, 242, and the requirement that a prosecutor's plea-bargaining promise must be kept, Santobello v. New York, 404 U.S. 257, 262. The decision of the Court of Appeals in the present case, however, did not deal with considerations such as these, but held that the substance of the plea offer itself violated the limitations imposed by the Due Process Clause of the Fourteenth Amendment. [Citation omitted.] For the reasons that follow, we have concluded that the Court of Appeals was mistaken in so ruling.
IV
This Court held in North Carolina v. Pearce, 395 U.S. 711, 725, that the Due Process Clause of the Fourteenth Amendment "requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." The same principle was later applied to prohibit a prosecutor from reindicting a convicted misdemeanant on a felony charge after the defendant had invoked an appellate remedy, since in this situation there was also a "realistic likelihood of 'vindictiveness.'" Blackledge v. Perry, 417 U.S., at 27.
In those cases the Court was dealing with the State's unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction - a situation "very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power." (Citations omitted.)
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While confronting a defendant with the risk of more severe punishment clearly may have a "discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable" - and permissible - "attribute of any legitimate system which tolerates and encourages the negotiation of pleas." [Citation omitted.] It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead guilty.
It is not disputed here that Hayes was properly chargeable under the recidivist statute, since he had in fact been convicted of two previous felonies. In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.
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There is no doubt that the breadth of discretion that our country's legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise. We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternative of foregoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment.
Accordingly, the judgment of the Court of Appeals is reversed.
Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
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The Court now says, however, that this concern with vindictiveness is of no import in the present case, despite the difference between five years in prison and a life sentence, because we are here concerned with plea bargaining where there is give-and-take negotiation, and where, it is said, ante, at 363, "there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer." Yet in this case vindictiveness is present to the same extent as it was thought to be in Pearce and in Perry; the prosecutor here admitted . . . that the sole reason for the new indictment was to discourage the respondent from exercising his right to a trial.
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Prosecutorial vindictiveness in any context is still prosecutorial vindictiveness. The Due Process Clause should protect an accused against it, however it asserts itself. The Court of Appeals rightly so held, and I would affirm the judgment.
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Notes
1. In the principal case, no limits appear on the prosecutor so long as the prosecutor only follows the legal path, regardless of the motive. However, there are boundaries to what a prosecutor may use to circumscribe a defendant's options. In Blackledge v. Perry, 417 U.S. 21 (1974), the Court granted a defendant some protection from the vindictive exercise of prosecutorial discretion. In Blackledge, the Court permitted a collateral attack on the conviction where the defendant had initially been charged with a misdemeanor and exercised his right to have a trial de novo. Prior to the new trial, the prosecutor elevated the misdemeanor charge to a felony stemming from the original operative facts. In striking down the elevation of the charge on due process grounds, the Court noted that the defendant was entitled to the de novo trial without fear that the prosecutor would "get even" for his exercise of a legal right. The Court held that the potential for prosecutorial vindictiveness against those who seek to exercise their right to appeal raised sufficiently serious due process concerns to require a rule forbidding a state to bring more serious charges against defendants in that position.