Kaufman, Hays and Gibbons,*fn* Circuit Judges. Hays, Circuit Judge (concurring).
IRVING R. KAUFMAN, Circuit Judge:
The question before us is whether a 5 to 10 year sentence which Robert Williams, an inmate of Auburn State Prison, is currently serving because of his conviction after trial for feloniously selling a narcotic drug is constitutionally invalid in view of the lighter indeterminate sentence of 3 to 7 years originally imposed upon his plea of guilty (later withdrawn) to the lesser charge of attempted felonious sale. We affirm Judge Foley's denial of a writ of habeas corpus.
Williams was indicted by the Onondaga County grand jury in 1963 for selling a packet of heroin, in violation of former New York Penal Law § 1751(1), McKinney's Consol. Laws, c. 40. Through his attorney, Williams negotiated an agreement with the district attorney whereby he would plead guilty if the prosecutor would agree to reduce the charge to an attempted sale of narcotics (former Penal Law § 1751(5)). Williams was told by the district attorney that he could expect to be sentenced to an indeterminate term of 3 to 7 years on the lesser charge, and on May 14, 1964 the Onondaga County Court imposed the expected sentence. Within a few days, however, the state discovered that Williams had a prior felony conviction on his record dating back to 1949. Accordingly, on May 20, after less than a week in prison, Williams was returned to the court for mandatory sentencing as a second felony offender. As a recidivist the minimum sentence upon conviction for attempt would have been 3 3/4 years and the maximum 15 years (former Penal Law § 1941). In a coram nobis proceeding instituted that day, Williams sought permission to withdraw his guilty plea on the ground that his sentence as a second felony offender would be longer than the sentence he had bargained for. Williams's request was granted on May 27.
Williams was then tried and convicted before Judge Gale and a jury on the original charge in the indictment, which alleged a completed sale. At sentencing, Williams's attorney for the first time questioned the constitutionality of the older 1949 conviction. The prosecution did not take issue with the contention; Williams was accordingly treated as a first felony offender. Judge Gale then imposed a term of from five to ten years.
Thereafter Williams unsuccessfully sought appellate and collateral relief against this longer sentence in the New York courts. Eventually, he filed his petition in the district court. Upon the argument of this appeal Williams's counsel contended that the petitioner should have been tried for an attempt only, and should upon conviction have received a maximum sentence of 3 to 7 years -- all of which had been the result of the plea bargaining.
Williams, with commendable candor, recognizes that the strength of his claim derives entirely from the Supreme Court's recent decision in North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).*fn1 Pearce and its companion case, Simpson v. Rice, concerned prisoners who had successfully attacked their convictions for assault and burglary. Upon reconviction for the same offenses, the prisoners had received substantially longer sentences.*fn2 In the Supreme Court they urged a blanket constitutional ban against such harsher sentences, enlisting three already well canvassed arguments based upon the double jeopardy, equal protection, and due process clauses.*fn3 The Court rejected each of the grounds for the proffered blanket rule, in favor of a narrower principle for vacating the sentence. Not a longer sentence simpliciter, but a longer sentence imposed in retaliation for the defendant's successful attack upon his first conviction, was constitutionally offensive, the Court said. And to assure the absence of such a motivation, the Court required that longer sentences upon reconviction for the same offense be justified by explicit reference to the defendant's behavior since the first sentencing. 395 U.S. at 726, 89 S. Ct. 2072.
Williams rather simplistically urges us to apply the Pearce rule to vacate his second sentence, because it recites no such justification. But Williams's straightforward argument overlooks the glaring fact that Judge Gale's sentence was imposed upon conviction for a more serious crime. Given this complete and obvious explanation for the longer sentence, we see no need to demand the type of justification ordered in Pearce. Far from vindictively choosing to mete out a harsher sentence, Judge Gale did not have any discretion under the New York statute to impose the earlier 3 to 7 year term.*fn4 By contrast, the harsher resentencing in Pearce was not supported by any appropriate consideration or reasoning, and thus suggested retaliatory motivation. To view Williams's longer sentence with a presumption of vindictiveness would be an illogical application of the salutary Pearce rule to a situation far removed from the problem for which it was designed.
Our inquiry does not end here, however, for the sentencing judge is not the only official who may wreak vengeance upon a defendant for a successful attack on his first conviction. We have no quarrel with the proposition that prosecutorial vindictiveness can be no less an affront to those values we characterize as "due process" than judicial vindictiveness.*fn5 Pearce would have application, if a prosecutor for no valid reason charged a defendant whose first conviction had been set aside, with a more serious offense based upon the same conduct. Williams claims he should be the beneficiary of the Pearce doctrine because the district attorney refused to permit him to plead innocent to the charge of attempting a felonious sale. This, he urges, was not adequately justified and under Pearce was a presumptively retaliatory measure. We see no merit to this whatsoever, since the charge upon which he was tried was so obviously attributable to reasons other than retribution.
Williams concedes that the original reduction from sale to attempted sale was the result of an express agreement with the prosecutor given in consideration of his plea of guilty. When Williams was successful in revoking his part of the bargain by having his plea of guilty set aside, it is hardly surprising, and scarcely suggestive of vindictiveness, that the district attorney in turn withdrew his consent to the reduced charge. Indeed, all that happened was that the prosecution was forced to proceed on the original charge which the grand jury had returned in the first instance -- felonious sale of a narcotic drug. The faultless conduct of the prosecutor here is apparent when compared with that condemned in Sefcheck v. Brewer, 301 F. Supp. 793 (S.D. Iowa 1969), where, after the defendant successfully withdrew his plea of guilty to the original charge, the prosecutor filed a new, more serious information.
We recognize that in the future, district attorneys may decline unilaterally to maintain their part of a plea bargain after a defendant has revoked his, and that this may deter attacks upon the legal sufficiency of guilty pleas. But Pearce expressly rejected arguments that inhibiting the invocation of appellate and collateral proceedings was by itself constitutionally offensive. Pearce sought to remedy only those restraints to pursue a remedy which vindictiveness might impose. We note also that the Supreme Court has upheld the validity of plea bargains entered into because of the threat of a more severe sentence following a jury trial, despite the fact that such bargains inhibit the defendant's exercise of his right to trial by jury.*fn6 The hypocrisy which at one time caused some to deny the existence of plea bargaining is disappearing. Plea bargaining and the considerations that go with it are facts of life in our system of criminal justice. See, e.g., ABA Minimum Standards Relating to Pleas of Guilty §§ 1.8 (propriety of charge and sentence concessions to defendants who ...