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decided: May 21, 1973.



Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Blackmun, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 58. Marshall, J., filed a dissenting opinion, in Part III of which Stewart, J., joined, post, p. 59.

Author: Powell

[ 412 U.S. Page 47]

 MR. JUSTICE POWELL delivered the opinion of the Court.

A writ of certiorari was granted in this case, 409 U.S. 911 (1972), to decide whether the due process holding of North Carolina v. Pearce, 395 U.S. 711, 723-726 (1969), is to be given retroactive effect. For the reasons that follow, we hold today that this decision is nonretroactive.


Respondent, Leroy Payne, pleaded guilty in a county circuit court in Michigan to a charge of assault with intent to commit murder in connection with an armed

[ 412 U.S. Page 48]

     attack upon two sheriff's deputies. In March 1963 he was sentenced to a prison term of from 19 to 40 years. Several years later, respondent's conviction and sentence were set aside when a hearing, ordered by the Michigan Court of Appeals, disclosed that his confession and subsequent guilty plea were involuntary. Following a retrial, at which he exercised his rights to trial by jury and to plead innocent, respondent again was found guilty on the same assault charge. On August 30, 1967, he was resentenced to prison from 25 to 50 years with full credit for all time served under the prior sentence. During the resentencing hearing, the judge explained that the higher sentence was "based on the nature of the crime and on the impressions which I formed of [respondent] and of the crime."

Respondent appealed to the Michigan Court of Appeals, which affirmed his conviction and approved the higher sentence. 18 Mich. App. 42, 170 N. W. 2d 523 (1969). While the case was pending before the Michigan Supreme Court, the trial judge who had presided over respondent's second trial was requested to submit an affidavit detailing his reasons for imposing a higher sentence. The judge's affidavit stated that his sentencing determination was based primarily on (i) his personal belief that respondent's attitude since the first sentencing proceeding had changed from one of regret to remorselessness, (ii) his view that respondent's alibi defense, given under oath, was a "tissue of lies," and (iii) his heightened opportunity to learn of the details of the crime during the three-day trial.*fn1

[ 412 U.S. Page 49]

     The Michigan Supreme Court, in a 4-to-3 decision, upheld the conviction but rejected the higher sentence as violative of the due process restrictions established in North Carolina v. Pearce, supra. 386 Mich. 84, 191 N. W. 2d 375 (1971). The court recognized that this Court had not yet decided whether Pearce applied to resentencing proceedings which, as in this case, occurred prior to Pearce 's date of decision.*fn2 While declining to predict how the retroactivity question would ultimately be resolved, the Michigan Supreme Court decided to apply Pearce to the case then before it "pending clarification" by this Court. Id., at 90 n. 3, 191 N. W. 2d, at 378 n. 2. Before this Court, the State contends that Pearce should not be applied retrospectively, but that, even if applicable, the state supreme court erred in holding the higher sentence invalid under the Pearce test. Because we hold today that Pearce does not apply retroactively, we do not reach the State's second contention.*fn3

[ 412 U.S. Page 50]


In Pearce, the Court emphasized that "it can hardly be doubted" that, while "there exists no absolute constitutional bar to the imposition of a more severe sentence upon retrial," it would be entirely impermissible for judges to render harsher penalties as punishment for those defendants who have succeeded in getting their convictions reversed. 395 U.S., at 723. "Vindictiveness" against a defendant for having exercised his rights to appeal or to attack his conviction collaterally, the Court held, "must play no part in the sentence [a defendant] receives after a new trial." Id., at 725. In so holding, the Court recognized that "fundamental notions of fairness embodied within the concept of due process" absolutely preclude the imposition of sentences based upon such a "'retaliatory motivation.'" Chaffin v. Stynchcombe, ante, at 25. No "new" constitutional rule was thereby established and it cannot be questioned that this basic due process protection articulated

[ 412 U.S. Page 51]

     in Pearce is available equally to defendants resentenced before and after the date of decision in that case. On this point the parties do not disagree.

The dispute in this case centers, instead, around the "prophylactic"*fn4 limitations Pearce established to guard against the possibility of vindictiveness in the resentencing process. Those limitations, applicable "whenever a judge imposes a more severe sentence upon a defendant after a new trial," 395 U.S., at 726, require that the sentencing judge's reasons "must affirmatively appear," and that those reasons "must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Ibid. The question here is whether these restrictions govern resentencing proceedings predating Pearce.

The contours of the retroactivity inquiry have been clearly delineated in numerous decisions over the last decade. The test utilized repeatedly by this Court to ascertain whether "new" constitutional protections in the area of criminal procedure are to be applied retroactively calls for the consideration of three criteria: "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." Stovall v. Denno, 388 U.S. 293, 297 (1967). See also Linkletter v. Walker, 381 U.S. 618, 629, 636 (1965); Tehan v. Shott, 382 U.S. 406, 410-418 (1966); Johnson v. New Jersey, 384 U.S. 719, 726-727 (1966).

The two purposes for the resentencing restrictions imposed by Pearce were to ensure (i) "that vindictiveness against a defendant for having successfully attacked his first ...

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