STATE OF ALABAMA, PETITIONER V. JAMES LEWIS SMITH

   No. 88-333

   In The Supreme Court Of The United States

   October Term, 1988

   On Writ Of Certiorari To The Supreme Court Of Alabama

   Brief for the United States as Amicus Curiae Supporting Petitioner

            TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      A defendant who withdraws his guilty plea after he has
      been sentenced may constitutionally be subjected to an
      increased sentence following his conviction at trial
      A. Vindictiveness may be inferred only in those special
         contexts in which there is a realistic possibility that
         the defendant's sentence has been increased to
         penalize him for exercising a legal right
      B. Vindictiveness should not be presumed where a
         defendant withdraws a guilty plea after he has been
         sentenced, and is given an increased sentence after he
         is convicted at trial
      C. Even if a presumption of vindictiveness were
         appropriate, that presumption was easily overcome in
         this case
   Conclusion

                          QUESTION PRESENTED

   The respondent in this case entered a guilty plea and was
sentenced.  Subsequently, he withdrew his guilty plea, went to trial,
and was convicted.  The trial court then sentenced respondent to a
longer term of imprisonment than the court had imposed following
respondent's guilty plea.  The question presented is whether that
sentence was "vindictive" under the principles articulated in this
Court's decision in North Carolina v. Pearce, 395 U.S. 711 (1969).

                     INTEREST OF THE UNITED STATES

   This case involves the application of the presumption of
"vindictiveness" under North Carolina v. Pearce, 395 U.S. 711 (1969),
a presumption that applies equally to federal criminal cases.  The
question presented is whether, under Pearce, a defendant who withdraws
his guilty plea and is convicted after trial may be given a greater
sentence than the one he received following his guilty plea.  That
question arises routinely in the federal system.  Moreover, under the
recently promulgated Sentencing Guidelines, federal judges are
entitled to impose a more lenient sentence on a defendant who, by
pleading guilty, has demonstrated an "acceptance of responsibility"
for his offense.  United States Sentencing Comm'n, Sentencing
Guidelines and Policy Statements Section 3E1.1(a), (c), Commentary
(1988).  The United States therefore has a continuing interest in the
question whether Pearce forbids a court from sentencing a defendant
who does not plead guilty more harshly than one who does.

                               STATEMENT

   1. In November 1985, respondent was charged, in three separate
indictments, with first degree sodomy, first degree rape, and first
degree burglary.  All three charges arose from respondent's September
14, 1985, assault on Vickie Hurst.  C.A. App. 415-423.  On January 6,
1986, respondent entered a guilty plea to the rape and burglary
charges.  In his allocution, respondent acknowledged that at about
1:30 a.m. on the date in question, he went to Ms. Hurst's house, cut
through a screened window, and, holding a knife, had "ha(d) sex" with
his victim.  In exchange for respondent's plea to the two charges, the
State moved to dismiss the sodomy charge.  The trial court granted
that motion and accepted respondent's guilty plea.  1/6/86 and 1/17/86
Tr. R-3 to R-4, R-14 to R-20.

   On January 17, 1986, respondent appeared before the trial court for
sentencing.  The court had already received presentence reports
concerning the offense (J.A. 27, 37), which stated that respondent had
"broke(n) into the residence of Vickie Hurst * * * while (she) and her
three children were at home" and had forced Ms. Hurst "to engage in
oral intercourse * * * (and) sexual intercourse with him." The
sentencing court also heard from Ms. Hurst, respondent's victim, who
advised the court of her fear that if respondent "(got) out, he
(would) do it again." The trial court imposed concurrent terms of 30
years' imprisonment on each charge.  1/6/86 and 1/17/86 Tr. R-20 to
R-28.

   Respondent thereafter moved to withdraw his guilty plea, contending
that he had not entered it knowingly or voluntarily.  The trial court
denied that motion, but the Alabama Court of Criminal Appeals reversed
and remanded.  It held that respondent had not been accurately
apprised of the penalties associated with the crimes to which he had
pleaded guilty.  Pet. App. 2;  Smith v. State, 494 So. 2d 182 (1986).

   2. On remand, the State moved to reinstate the previously dismissed
charge of first degree sodomy.  The trial court granted that motion,
and respondent proceeded to trial on all three original charges.  Pet.
App. 2.

   At trial, Ms. Hurst testified that on September 13, 1985, after
putting her three children to bed across the hall, she was in her room
watching television.  In the early morning hours, she heard a noise in
the hallway.  She looked up and saw a man, later identified as the
respondent, with a mask pulled over his face.  The man was dressed
only in his underwear, and he was carrying a kitchen knife with a
shiny blade and a wooden handle.  Respondent ran toward Ms. Hurst with
the knife, put his hand over her mouth, pulled her down onto the bed,
and removed her underwear.  Holding the knife to Ms. Hurst's chest,
and later placing it beside her on the bed, respondent then forced his
victim to have intercourse with him at least four times and "in
different positions." In addition, respondent forced Ms. Hurst to
perform oral sex on him and to permit him to do the same to her.  /1/
In all, respondent's attack on his victim lasted more than one hour.
C.A. App. R-126 to R-146.  /2/

   The State also offered respondent's post-arrest statement, in which
respondent admitted many of the details of the offenses.  For example,
in his statement respondent acknowledged that he had entered Ms.
Hurst's apartment, while dressed in his underwear, with a cap pulled
over his face, and carrying a knife.  He also admitted that he had
gotten into Ms. Hurst's bed and that he had had intercourse with her.
Respondent asserted in this statement, however, that Ms. Hurst did not
resist having intercourse with him;  and although he acknowledged that
he had tried to have oral sex as well, he claimed that he had acceded
to Ms. Hurst's refusal to do so.  Respondent stated that he had gone
to Ms. Hurst's apartment because he had "felt empty" and "wanted to be
loved." C.A. App. R-197 to R-203.

   Respondent took the stand at trial and claimed that he had been in
bed with his girlfriend at the time the rape took place (C.A. App.
R-283 to R-284).  He explained that he had offered the confession to
the police only "because the two officers that questioned (him had)
set themselves up as judge and jury and (had) offered (him) no self
defense, legal representation" (id. at R-303).  Respondent
characterized his statements to the police as "running off at the
mouth" (id. at R-301) and "just babble" (id. at R-305).

   Respondent was convicted on all three charges (C.A. App. R-393),
and on August 22, 1986, he appeared a second time for sentencing
before the trial court.  The court imposed concurrent terms of life
imprisonment on the burglary and sodomy convictions and a consecutive
term of 150 years' imprisonment on the rape conviction (id. at R-396,
R-403 to R-404).  The trial court explained that at the time the court
sentenced respondent on his guilty plea, respondent had told the court
only "(his) side of the story" (Pet. App. 28).  "(N)ow," the court
stated, "the court has had a trial and heard all of the evidence,"
including the "testimony which consisted of raping the victim at least
five times," and evidence showing respondent's "mental outlook on it
and (his) position during the trial" (id. at 28-30).  Although the
court emphasized that it was not increasing respondent's sentence
based "on the fact that (he) was successful on (his) appeal" (id. at
28), it concluded that it was "proper to increase the sentence beyond
that which was given to (respondent) on the plea bargain" (id. at 30).
 /3/

   3. The Court of Criminal Appeals affirmed respondent's convictions,
as well as his life sentences for sodomy and burglary, while remanding
the rape conviction for resentencing.  The Alabama Supreme Court
thereafter granted respondent's request for review of the burglary
sentence, and it reversed and remanded by a divided vote (Pet. App.
1-14).  The court held that " 'there can be no increase in a sentence
in a criminal case after the sentence is imposed' " (Pet. App. 5
(citation omitted)).  To increase a sentence under those
circumstances, the court reasoned, would " 'den(y) the prisoner the
protection of his original sentence as a condition to the right of his
appealing his conviction or exercising his post-conviction remedies' "
(ibid. (citation omitted)).  The court acknowledged that in North
Carolina v. pearce, 395 U.S. 711 (1969), this Court held that " '(a)
trial judge is not constitutionally precluded * * * from imposing a
new sentence, whether greater or less than the original sentence, in
the light of of events subsequent to the first trial that may have
thrown new light upon the defendant's "life, health, habits, conduct,
and mental and moral propensities" ' " (Pet. App. 5-6 (quoting 395
U.S. at 723)).  But the court construed the language in Pearce to
authorize an increased sentence only when it is justified by "events
subsequent to the first trial" (id. at 7).  Because the trial court
had increased respondent's sentence based on the evidence adduced at
the trial, the court set aside respondent's sentence on the burglary
conviction.

   Justice Maddox dissented (Pet. App. 8-14).  In his view, "the
principles of North Carolina v. Pearce * * * (do) not apply" where the
original sentence follows a voluntary guilty plea (id. at 9-10).
Justice Maddox explained that a defendant "should not be allowed to
receive sentence concessions in return for a guilty plea and then,
after a successful attack on that plea, bind the State to its original
sentencing bargain if he is later convicted after a trial" (id. at
14).  Were the law otherwise, he stated, a defendant "could go to
trial and chance an acquittal knowing he could receive a sentence no
harsher than he was originally given" (ibid.).  /4/

                          SUMMARY OF ARGUMENT

   In North Carolina v. Pearce, 395 U.S. 711 (1969), this Court held
that before a trial court may increase a sentence following a criminal
defendant's exercise of a post-conviction right of review, the
increased penalty must be justified by a showing of legitimate,
non-vindictive motivating factors.  Relying on Pearce, the Alabama
Supreme Court held that a trial court may not impose on a defendant
who was convicted at trial a harsher sentence than the one the court
imposed after the defendant pleaded guilty.  That holding extends
Pearce to a precinct in which it was never meant to apply.

   A. This Court has made clear that the presumption of vindictiveness
articulated in Pearce must be confined to the special context in which
that case arose.  The Court has explained that "the Due Process Clause
is not offended by all possibilities of increased punishment upon
retrial after appeal, but only those that pose a realistic likelihood
of 'vindictiveness.' " Blackledge v. Perry, 417 U.S. 21, 27 (1974).
Thus, the Court has always restricted the application of Pearce "to
areas where its 'objectives are thought most efficaciously served.' "
Texas v. McCullough, 475 U.S. 134, 138 (1986) (citation omitted).

   B. For three reasons, a reviewing court should not presume
vindictiveness in the context presented by this case.

   First, a trial on the merits will usually afford the trial court a
more complete account of the crime than is provided by a simple plea
allocution.  For that reason, a court that has heard all the evidence
at a full trial on the merits will often be in a better position to
impose an appropriate sentence than it was after a guilty plea.  The
court's decision to impose a stiffer sentence after a full trial is
thus likely to be the product of better information -- as it was in
this case -- and not the product of judicial vindictiveness.

   Second, a defendant who has pleaded guilty, and who has thereby
acknowledged his responsibility for an offense, may well deserve a
more lenient sentence.  This Court and others have routinely approved
more favorable sentencing treatment for defendants whose guilty pleas
reflect contrition and personal accountability.  By contrast, a
defendant who has gone to trial may well not have earned specially
lenient sentencing treatment, particularly if the defendant -- in the
judgment of the sentencing court -- gives false testimony at trial.  A
difference in treatment between a defendant who has pleaded guilty and
one who has gone to trial is therefore entirely legitimate and does
not warrant a presumption of vindictiveness.

   Finally, these two reasons suggest a third, more general one:  a
presumption of vindictiveness in this setting is fundamentally
incompatible with the accepted role of plea bargaining in the criminal
justice system.  Under the Alabama Supreme Court's view, a defendant
who has been sentenced based on a plea bargain may withdraw from that
plea and proceed to trial, running no risk that he may be sentenced
more severely than he was the first time.  Such an application of the
rule in Pearce would entirely remove a defendant's incentive to enter
into binding plea agreements.

   C. Even if a presumption of vindictiveness were appropriate in this
case, the trial court's findings easily overcome that presumption.
The trial court explained that it imposed a harsher sentence because
the evidence at trial showed respondent's crime to be far more serious
than the court had previously supposed.  The Alabama Supreme Court
held (Pet. App. 4) that the trial court did not rely on an "event()
subsequent to the (respondent's) first conviction" and that its
findings therefore did not satisfy the burden imposed by Pearce.  That
conclusion, however, is flatly inconsistent with this Court's decision
in Texas v. McCullough, 475 U.S. at 141-144.  In that case, the Court
upheld a heavier sentence following a second trial, where that
sentence was based on additional facts about the underlying offense
that emerged, for the first time, at the second trial.

                               ARGUMENT

         DEFENDANT WHO WITHDRAWS HIS GUILTY PLEA AFTER HE HAS BEEN
      SENTENCED MAY CONSTITUTIONALLY BE SUBJECTED TO AN INCREASE
      SENTENCE FOLLOWING HIS CONVICTION AT TRIAL

   A. Vindictiveness May Be Inferred Only In Those Special Contexts In
Which There Is A Realistic Possibility That The Defendant's Sentence
Has Been Increased To Penalize Him For Exercising A Legal Right

   1. In North Carolina v. Pearce, 395 U.S. 711 (1969), this Court
reviewed the actions of state trial judges who had increased two
defendants' sentences after the defendants successfully invoked
post-conviction review procedures and obtained reversals of their
convictions.  The Court concluded that the Due Process Clause limits
the imposition of harsher sentences on retrial after a successful
appeal.  In one of the cases, the Court found it "inescapable" that
the trial judge was "punishing (the defendant) for having exercised
his post-conviction right of review" (id. at 726);  in the other case,
no "reason or justification" was suggested for the increased sentence
"beyond the naked power to impose it" (ibid.).  In analyzing the
enhanced sentences in those cases, the Court explained that imposing a
more severe sentence "for the explicit purpose of punishing the
defendant for his having succeeded in getting his original conviction
set aside" would violate the Due Process Clause (id. at 723-724).  The
Court noted, however, that the "existence of a retaliatory motivation"
would be "difficult to prove in any individual case" (id. at 725
n.20).  In view of the clear hazard that vindictiveness motivated the
sentences before it, and the difficulty in obtaining reliable proof on
that issue, the Court adopted a special prophylactic rule (id. at
726):

         In order to assure the absence of such a motivation, we have
      concluded that whenever a judge imposes a more severe sentence
      upon a defendant after a new trial, the reasons for his doing so
      must affirmatively appear.  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.

   In Blackledge v. Perry, 417 U.S. 21 (1974), this Court adopted a
similar prophylactic rule, to guard against vindictiveness by the
prosecutor at the post-conviction stage.  In that case the defendant
sought a trial de novo in a state superior court following his initial
misdemeanor conviction.  The prosecutor responded immediately to the
exercise of that post-conviction right by obtaining a felony
indictment, which resulted in a sentence after conviction of five to
seven years' imprisonment.  The Court concluded that "the
opportunities for vindictiveness in this situation are such as to
impel the conclusion that due process of law requires a rule analogous
to that of the Pearce case." Id. at 27.  The Court reached that
conclusion only after finding that there was a "realistic likelihood
of 'vindictiveness,' " because the "prosecutor clearly has a
considerable stake in discouraging convicted misdemeanants from
appealing and thus obtaining a trial de novo." Ibid.  In this context,
the Court ruled that "it was not constitutionally permissible for the
State to respond to (the defendant's) invocation of his statutory
right to appeal by bringing a more serious charge" (id. at 28-29),
absent a showing that would dispel the appearance of vindictiveness,
such as a demonstration "that it was impossible to proceed on the more
serious charge at the outset." Id. at 29 n.7.

   2. While recognizing that a presumption of vindictiveness is
appropriate in settings such as those presented in Pearce and Perry,
the Court has made clear that the presumption should not be applied
outside the special contexts in which it was developed.  The Court has
therefore refused to extend the presumption to cases in which it was
not likely that the increase in penalty exposure was triggered by the
exercise of a procedural right, or in which an increase, even if
triggered by the exercise of procedural right, serves a legitimate
purpose apart from penalizing the accused for exercising a procedural
right.

   In Colten v. Kentucky, 407 U.S. 104 (1972), for example, this Court
declined to extend the prophylactic sentencing rule prescribed in
Pearce to a two-tier prosecution system in which the defendant was
first convicted in an inferior court and then appealed to a court of
general jurisdiction for a trial de novo.  The defendant claimed that
imposition of greater punishment for the same charge following his
appeal to the court of general jurisdiction was a "vindictive"
response to his decision to seek a post-conviction remedy.  This Court
rejected that contention, concluding that the sentencing system did
not present "hazards warranting the restraints called for in North
Carolina v. Pearce" (407 U.S. at 119).  While the Court recognized
that Pearce prohibited the imposition of "a more severe penalty after
reconviction * * * as purposeful punishment for having successfully
appealed," it did not believe that, in the situation before it,
vindictive responses would occur "with sufficient frequency to warrant
the imposition of a prophylactic rule" (id. at 116).  The Court saw no
logical basis for adopting a presumption that the court of general
jurisdiction, which resentenced the defendant following his trial de
novo, would respond to the defendant's request for a trial de novo in
a vindictive manner (id. at 117).

   Similarly, in Chaffin v. Stynchcombe, 412 U.S. 17 (1973), where a
second jury imposed a more severe sentence on a defendant upon retrial
following reversal of his original conviction, the Court refused to
apply the prophylactic rule announced in Pearce.  The Court concluded
that the "hazard of vindictiveness" (id. at 25) is not present when a
new jury imposes sentence following reconviction.  While the Court
recognized that a more severe sentence would be impermissible if its
"only objective * * * is to discourage the exercise of constitutional
rights" (id. at 33 n.20), it found that the "potential for such abuse
of the sentencing process by the jury is * * * de minimis, in a
properly controlled retrial" (id. at 26).  In view of its conclusion
that there was no "real threat of vindictiveness" in the case before
it (id. at 28), the Court dismissed the suggestion that the risk of an
enhancement of penalties after the exercise of a procedural right
imposes an improper "chilling effect" on defendants (id. at 29-35).
The Court noted that the defendant at bar "was not himself 'chilled'
in the exercise of his right to appeal," and it expressed doubt that
"the 'chill factor' will often be a deterrent of any significance"
(id. at 33).

   These cases make plain that "the 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.' " Perry, 417 U.S. at 27.  Accordingly, "(l)ike other
'judicially created means of effectuating the rights secured by the
(Constitution),' " this Court has "restricted application of Pearce to
areas where its 'objectives are thought most efficaciously served.' "
Texas v. McCullough, 475 U.S. 134, 138 (1986).  "Given the severity of
(the) presumption * * * -- which may operate in the absence of any
proof of an improper motive and thus may block a legitimate response
to criminal conduct -- the Court has (applied the presumption) only in
cases in which a reasonable likelihood of vindictiveness exists."
United States v. Goodwin, 457 U.S. 368, 373 (1982).

         B. Vindictiveness Should Not Be Presumed Where a Defendant
      Withdraws A Guilty Plea After He Has Been Sentenced, And Is
      Given an Increased Sentence After He Is Convicted At Trial

   When a defendant withdraws his guilty plea after sentencing, and is
thereafter convicted at trial, it is not unusual for a trial court to
determine that a heavier sentence is warranted.  For three related
reasons, no presumption of vindictiveness should attach to that
determination.  /5/

   1. While a defendant's guilty plea allocution may furnish
relatively few details about the underlying offense, a trial on the
merits often affords the sentencing court a detailed picture of the
crime and the defendant's responsibility for it.  In taking a guilty
plea in the federal system, for example, Fed. R. Crim. P. 11(f)
requires the trial court to make "such inquiry as shall satisfy it
that there is a factual basis for the plea." See McCarthy v. United
States, 394 U.S. 459, 467 (1969).  That inquiry, however, need only be
"precise enough and sufficiently specific to show that the accused's
conduct on the occasion involved was within the ambit of that defined
as criminal." United States v. Johnson, 546 F.2d 1225, 1226 (5th Cir.
1977).  Accordingly, "Rule 11 does not mandate that the defendant
personally confirm every factual allegation in the indictment" (United
States v. Trott, 779 F.2d 912, 914 (3d Cir. 1985)), and indeed an
otherwise valid guilty plea may be accepted even if the defendant
during the colloquy denies factual guilt (North Carolina v. Alford,
400 U.S. 25 (1970)).  What is more, the trial court need not question
the defendant at length about his role in the offense;  "(a)
sufficient factual basis can be found even when the court engages in
the most rudimentary questioning of the defendant if the indictment
and statement of the prosecution's evidence are sufficiently specific
to make clear to the defendant exactly what is being admitted to"
(United States v. Fountain, 777 F.2d 351, 355 (7th Cir. 1985), cert.
denied, 475 U.S. 1029 (1986)).

   Even when supplemented by a presentence report -- containing, in
the federal system, "information about the history of the defendant,
including * * * any circumstances affecting his behavior" (Fed. R.
Crim. P. 32(c)(2)(A)) -- a guilty plea allocution will seldom, if
ever, provide as detailed an account of the crime as would a trial on
the merits.  The present case illustrates the point.  The trial court
explained that at the time of respondent's plea, it knew of only "one
sex act (that) took place" (C.A. App. R-400).  As a result of the
trial, however, the court stated that it had become "aware that five
separate sex acts occurred" (ibid.), including two acts of sodomy (id.
at R-140) and three acts of intercourse (id. at R-402), each of which
had been accompanied by armed threats on the victim's life (ibid.).
Indeed, in light of the trial testimony the court suggested that the
sentence following the guilty plea "may not have been harsh enough"
(id. at R-411).

   In addition to presenting a more detailed account of the crime
generally, a trial on the merits will typically involve charges that
were dismissed as part of the prior plea bargain and which were
therefore not before the trial court when it initially sentenced the
defendant.  The "federal courts have generally held that a defendant
who successfully challenges his guilty plea may be reindicted on the
original charges, and if convicted, sentenced more severely." J. Bond,
Plea Bargaining and Guilty Pleas, Section 7.28(a), at 7-100 (1983)
(footnote omitted).  /6/ In the present case, for example, the State
moved to dismiss the sodomy charge, as part of its plea bargain with
respondent.  When respondent successfully withdrew from the plea
bargain, the sodomy charge was reinstated and tried to conviction.
The trial court was therefore in a position, following the trial, to
take account of a serious charge that was not before it when it
previously sentenced respondent.  The sodomy charge not only justified
a substantial sentence wholly apart from the sentence imposed on the
other two charges, but it helped complete the picture of the crime for
the trial court and thus justified increased sentences on the rape and
burglary charges as well.

   Moreover, where, as here, a defendant testifies at trial, the trial
on the merits will afford the sentencing court a more extensive
opportunity to assess the defendant's attitude toward his offense, and
therefore the defendant's moral culpability and susceptibility to
rehabilitation.  "(T)he trial judge's 'opportunity to observe the
defendant, particularly if he chose to take the stand in his defense,
can often provide useful insights into an appropriate disposition.' "
United States v. Grayson, 438 U.S. 41, 50 (1978) (citation omitted).
For example, a trial court is lawfully entitled to sentence a
defendant more harshly if he has testified falsely at trial.  Id. at
50-52;  United States Sentencing Comm'n, Sentencing Guidelines and
Policy Statements Section 3C1.1, at 3.7 (1987).  As this Court has
noted, "it is proper -- indeed, even necessary for the rational
exercise of discretion -- to consider the defendant's whole person and
personality, as manifested by his conduct at trial and his testimony
under oath, for whatever light those may shed on the sentencing
decision." United States v. Grayson, 438 U.S. at 53.  The trial court
in the present case apparently exercised that discretion, explaining
that it had increased respondent's sentences in part because of
respondent's "mental outlook" on the crime and his "position during
the trial and what (he) said" (C.A. App. R-402).

   In short, a trial on the merits will typically afford the
sentencing court a more complete picture of the offense and of the
defendant's responsibility for it.  For that reason, there is no basis
for presuming that a harsher sentence following a trial is the product
of vindictiveness.  The more likely explanation is that the court has
reached a different, and better informed judgment about the
appropriate level of punishment, based on "the details, flavor and
impact upon victims of the offense as presented at trial" (United
States v. Carter, 804 F.2d 508, 514 (9th Cir. 1986)).  Accordingly, in
this setting, the realistic "hazard of vindictiveness * * * is de
minimis" (Chaffin v. Stynchcombe, 412 U.S. at 25-26), and the Pearce
presumption should not be applied.  /7/

   2. Beyond this, a defendant who elects to acknowledge
responsibility and plead guilty "demonstrates by his plea that he is
ready and willing to admit his crime and to enter the correctional
system in a frame of mind that affords hope for success in
rehabilitation over a shorter period of time than might otherwise be
necessary." Brady v. United States, 397 U.S. 742, 753 (1970).  Such a
defendant has "taken the first and arguably essential step toward
rehabilitation and would therefore require less lengthy confinement
and treatment than a defendant similar in all other respects but
adamant in his protestations of innocence." J. Bond, Plea Bargaining
and Guilty Pleas Section 2.7(c), at 2-22 (1983).  "It is almost
axiomatic," one court has observed, "that the first step toward
rehabilitation of an offender is the offender's recognition that he
was at fault * * * ." Gollaher v. United States, 419 F.2d 520, 530
(9th Cir.), cert. denied, 396 U.S. 960 (1969).

   For that reason, this Court's cases "unequivocally recognize the
constitutional propriety of extending leniency in exchange for a plea
of guilty and of not extending leniency to those who have not
demonstrated those attributes on which leniency is based." Corbitt v.
New Jersey, 439 U.S. 212, 224 (1978) (footnote omitted).  Accord
Brady, 397 U.S. at 753.  The lower federal courts have likewise held
that "(a) genuine admission of guilt may properly result in a lighter
sentence than would be appropriate for an intransigent and unrepentent
malefactor." United States v. Stockwell, 472 F.2d 1186, 1187 (9th
Cir.), cert. denied, 411 U.S. 948 (1973).  A trial judge is therefore
entitled "to take into account the difference in mental attitude
between the defendant who admits his guilt and seeks to reform and the
defendant who, although proved guilty beyond a reasonable doubt, gives
no indication of his willingness to be rehabilitated." United States
v. Derrick, 519 F.2d at 4.  Thus, although "(a)n accused may not be
subjected to more severe punishment for exercising his constitutional
right to stand trial" (United States v. Carter, 804 F.2d at 513;
accord United States v. Hutchings, 757 F.2d 11, 14 (2d Cir), cert.
denied, 472 U.S. 1031 (1985)), a court may impose a lighter sentence
when it concludes, based on a defendant's guilty plea and allocution,
that he has accepted responsibility for the offense (see, e.g., United
States v. Sampol, 636 F.2d 621, 678 (D.C. Cir. 1980)).  See generally
Roberts v. United States, 445 U.S. 552 (1980).  /8/

   In the federal system, the Sentencing Guidelines explicitly approve
that principle.  Section 3E1.1(a) of the Guidelines and the
accompanying commentary provide that although a defendant who pleads
guilty is not entitled to a sentencing reduction "as a matter of
right," the plea "may provide some evidence of the defendant's
acceptance of responsibility" and may therefore justify a reduction in
the offense level on which the sentence will be based.  Sentencing
Guidelines Section 3E1.1.(a), (c), Commentary at 3.21 (Jan. 1988).
The Guidelines explain that "a defendant who clearly demonstrates a
recognition and affirmative acceptance of personal responsibility for
the offense * * * is appropriately given a lesser sentence than a
defendant who has not demonstrated sincere remorse." Id. at 3.22.

   Because a trial court may lawfully give a lesser sentence to a
defendant who pleads guilty, a reviewing court should not presume
vindictiveness simply because a trial court has given a harsher
sentence to a defendant who elects to go to trial.  The rule in Pearce
was not designed to preclude sentencing courts from taking into
account a defendant's willingness to accept responsibility for his
offense.

   3. These first two principles suggest a third, more general one:  a
presumption of vindictiveness in this context is fundamentally
incompatible with the accepted role of plea bargaining in the criminal
justice system.  "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." Blackledge v. Allison, 431 U.S. 63, 71 (1977).  As this Court
has repeatedly explained, the "(d)isposition of charges after plea
discussions is not only an essential part of the (criminal justice)
process but a highly desirable part for many reasons." Santobello v.
New York, 404 U.S. 257, 261 (1971).  "For a defendant who sees slight
possibility of acquittal, the advantages of pleading guilty and
limiting the probable penalty are obvious -- his exposure is reduced,
the correctional processes can begin immediately, and the practical
burdens of a trial are eliminated.  For the State there are also
advantages -- the more promptly imposed punishment after an admission
of guilt may more effectively attain the objectives of punishment;
and with the avoidance of trial, scarce judicial and prosecutorial
resources are conserved for those cases in which there is substantial
issue of the defendant's guilt or in which there is substantial doubt
that the State can sustain its burden of proof." Brady v. United
States, 397 U.S. 742, 752 (1970).

   The decision below is incompatible with a rational plea bargaining
system.  As Justice Maddox explained in dissent, under the majority's
view a defendant would be "allowed to receive sentence concessions in
return for a guilty plea and then, after a successful attack on that
plea, bind the State to its original sentencing bargain if he is later
convicted after a trial" (Pet. App. 14).  Such an approach "would
encourage gamesmanship of a most offensive nature" -- what the Second
Circuit has called "nothing more than a 'heads-I-win-tails-you-lose'
gamble." United States ex rel. Williams v. McMann, 436 F.2d 103,
106-107 (1970), cert. denied, 402 U.S. 914 (1971).  The original
sentence would thereby become the defendant's baseline, and he could
"go to trial and chance an acquittal knowing he could receive a
sentence no harsher than he was originally given" (Pet. App. 14).

   Nothing in this Court's cases requires the plea bargaining system
to absorb such costs.  To the contrary, the Court has repeatedly held
that a presumption of vindictiveness is inappropriate where plea
negotiations are involved.  Thus, in Bordenkircher v. Hayes, 434 U.S.
357 (1978), the Court held that it was permissible for the prosecutor
to threaten the defendant with increased charges if the defendant did
not plead guilty, and to follow up on that threat when the defendant
insisted on his right to stand trial.  At the pretrial stage of the
prosecution in which the prosecutor engaged in "give-and-take
negotiation common in plea bargaining" (id. at 362), the Court found
no element of improper "punishment or retaliation" (id. at 363).  The
Court recognized that the prosecutor has a legitimate interest at the
bargaining table in persuading the defendant "to forgo his right to
plead not guilty" (id. at 364).

   Similarly, in Corbitt v. New Jersey, 439 U.S. 212 (1978), this
Court upheld a state sentencing scheme that authorized more lenient
sentences for defendants who pleaded guilty in homicide cases.  The
Court reiterated that the government has a "legitimate interest" (id.
at 222) in encouraging guilty pleas and affirmed the "constitutional
propriety of extending leniency in exchange for a plea of guilty and
of not extending leniency to those who have not demonstrated those
attributes on which leniency is based" (id. at 224).  Since this
differential penalty scheme served "the interest of the State in
efficient criminal procedure" (id. at 220 n.9) and was not a "needless
or arbitrary burden on the (exercise of) constitutional rights" (id.
at 223), the Court found no occasion for a presumption of malice or
vindictiveness.  See also United States v. Goodwin, 457 U.S. 368
(1982).

   These cases make clear that the government has a legitimate interst
in encouraging guilty pleas by offering favorable terms that it does
not make available to defendants who proceed to trial and are
convicted.  Just as the government may legitimately make a better
offer to defendants who agree to plead guilty, it may also treat less
favorably (but nevertheless nonvindictively) those defendants who are
convicted at trial.  The Pearce presumption has no place in that
calculus.

   C. Even If A Presumption Of Vindictiveness Were Appropriate, That
Presumption Was Easily Overcome In This Case

   The trial court in this case offered a persuasive explanation,
other than vindictiveness, for increasing respondent's sentence on the
burglary charge.  It stated that "at the time of the plea, (it) was
aware * * * that only one sex act took place";  after the trial, the
court noted, it became "aware that five separate sex acts occurred"
(C.A. App. R-400).  The Alabama Supreme Court held (Pet. App. 4),
however, that respondent's sentence could not be increased on that
basis.  It reasoned that the trial court's "subjective observations"
gleaned from the trial did not constitute objective "events subsequent
to the (respondent's) first conviction." Accordingly, it held that
under the Pearce case the trial court's explanation did not overcome
the presumption of vindictiveness.

   That is precisely the argument this Court rejected in Texas v.
McCullough, 475 U.S. 134 (1986).  The defendant in that case was
convicted and sentenced by a jury to 20 years' imprisonment.  The
trial court then granted the defendant's motion for a new trial, and
defendant was again convicted.  This time, the defendant chose to be
sentenced by the court, which imposed a sentence of 50 years.  In
revising the sentence, the court relied, in part, on certain
testimony, not presented at the first trial, which showed that the
defendant, rather than his accomplices, had slashed the throat of the
victim.  This Court held that the trial court's findings had overcome
any presumption under Pearce.  The Court acknowledged the language in
Pearce stating that the presumption of vindictiveness may be rebutted
with evidence of " 'conduct or events that occurred subsequent to the
original sentencing proceedings' " (id. at 141 (citation omitted)).
It explained (ibid.), however, that "(t)his language * * * was never
intended to describe exhaustively all of the possible circumstances in
which a sentence increase could be justified." Instead, the Court
stated, the Pearce presumption may be overcome by any " 'objective
information * * * justifying the increased sentence' " (id. at 142
(citation omitted)).  Applying that principle, the Court held that the
trial court's findings -- including, in particular, " '(t)he testimony
of * * * two witnesses directly implicat(ing) the defendant in the
commission of the murder in question and show(ing) what part he played
in committing the offense' " (id. at 143 (citation omitted)) -- were
sufficient to rebut any possible presumption of vindictiveness.

   The present case is controlled by McCullough.  Here, too, the trial
court justified its increased sentences by referring to "new evidence
about the (crimes) that was not presented" at the time of the guilty
plea and was "hence never made known to the sentencing" court the
first time around (475 U.S. at 136).  Moreover, the trial court was
able to take into account after the trial the defendant's attitude
regarding the offense and his testimony in which he offered an alibi
defense and charged that the police had obtained a false confession
from him.  Under the reasoning of McCullough, the trial court's
findings amply rebutted any possible inference of vindictiveness.

                              CONCLUSION

   The judgment of the Supreme Court of Alabama should be reversed.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   EDWARD S. G. DENNIS, JR.

      Assistant Attorney General

   LAWRENCE S. ROBBINS

      Assistant to the Solicitor General

   FEBRUARY 1989

   /1/ Ms. Hurst explained that each time that respondent moved to a
new position, she would ask him not to rape her again.  Respondent
told her he was not raping her, but was only "doing what (he) always
wanted to do." C.A. App. R-136 to R-137.

   /2/ Ms. Hurst also testified that she had recognized respondent,
who was one of her neighbors, from the sound of his voice during the
attack (C.A. App. R-143).  Confirming the point, the evidence showed
that four days after the offense, Ms. Hurst selected respondent's
voice from a "voice lineup," in which five persons, including
respondent, were required to speak certain of the words that,
according to Ms. Hurst, had been spoken by the assailant (id. at R-156
to R-157, R-190 to R-193).

   /3/ In response to defense counsel's claim that the sentences were
excessive (C.A. App. R-409), the trial court observed that at the time
of the initial sentencing it had had "no knowledge that (respondent)
raped the woman five times" and "sodomized her twice * * * with the
children across the hall, with the knife basically at her throat at
all times * * * at 1:00 or 2:00 a.m. with a ski mask on" (id. at R-410
to R-411).  The court stated that, in retrospect, the sentence that it
had imposed the first time "may not have been harsh enough" (id. at
R-411).

   /4/ The Alabama Supreme Court subsequently denied the State's
application for rehearing (Pet. App. 15).  Justice Maddox again
dissented (id. at 15-27).  He explained (id. at 26) that "(a)
defendant is free to accept or reject the (plea) offer of the State.
Once it is rejected, however, the defendant cannot complain that the
denial of the benefits of the offer he rejected constitutes punishment
or evidences judicial vindictiveness."

   /5/ The federal courts of appeals have held with near uniformity
that a trial court may impose a harsher sentence on a defendant who
has withdrawn his guilty plea and has thereafter been convicted at
trial.  See, e.g., McKenzie v. Risley, 842 F.2d 1525, 1536-1537 (9th
Cir. 1988) (en banc);  Thompson v. Lynaugh, 821 F.2d 1054, 1064-1065
(5th Cir. 1987), cert. denied, No. 87-5052 (July 7, 1987);  United
States v. Carter, 804 F.2d 508, 513-515 (9th Cir. 1986);  United
States v. Townsend, 796 F.2d 158, 164 (6th Cir. 1986);  Hitchcock v.
Wainwright, 770 F.2d 1514, 1518-1520 (11th Cir. 1985), rev'd on other
grounds, 481 U.S. 393 (1987).  As far as we can tell, the lone
exception is the Eighth Circuit's decision in United States v.
Gilliss, 645 F.2d 1269 (1981).  The court in Gilliss held that a trial
court could not resentence a defendant whose guilty plea had been set
aside in a habeas corpus proceeding to a term of imprisonment that
failed to specify (as did the prior sentencing) that the defendant
would be eligible for early parole under 18 U.S.C. 4205(b)(1).  The
court reasoned, in part, that a trial court may not alter a prior
sentence based simply on the fact that the trial on the merits has
provided a more damaging picture of the offense.  See 645 F.2d at 1284
& n.34.  As we explain below (see pages 14-17, 23-24, infra), the
Eighth Circuit's reasoning cannot be squared with the premises
underlying North Carolina v. Pearce, or, more specifically, with the
explicit holding in Texas v. McCullough, 475 U.S. 134 (1986).

   /6/ See, e.g., United States v. Townsend, 796 F.2d 158, 164 (6th
Cir. 1986);  United States v. Johnson, 537 F.2d 1170, 1174-1175 (4th
Cir. 1976);  United States v. Anderson, 514 F.2d 583, 587-588 (7th
Cir. 1975);  United States v. Rines, 453 F.2d 878, 880 (3d Cir. 1971);
 United States ex rel. Williams v. McMann, 436 F.2d 103, 104-107 (2d
Cir. 1970), cert. denied, 402 U.S. 914 (1971).

   /7/ "Only after trial and a sentencing hearing has the trial court
learned all all the facts which might be considered for sentencing.
On a plea bargain, the defendant's and prosecutor's agreement
forecloses the necessity for such a detailed explanation." Hitchcock
v. Wainwright, 770 F.2d at 1519.  See also United States v.
Cunningham, 529 F.2d 884, 889 (6th Cir. 1976) (increased sentences
following trial reflect "the sentencing judge's greater knowledge and
better understanding acquired after hearing the full disclosure of the
facts at the trial on the merits").  Cf. Blackmon v. Wainwright, 608
F.2d 183, 184 (5th Cir. 1979), cert. denied, 449 U.S. 852 (1980)
(increased sentence following trial may reflect the fact that the
trial court "had the benefit of hearing all of the trial testimony and
may have based the sentence on the facts surrounding the robbery and
the evidence of (the defendant's) guilt");  United States v.
Underwood, 588 F.2d 1073, 1078 (5th Cir. 1979).  As one court of
appeals has summarized the point (United States v. Derrick, 519 F.2d
1, 4 (6th Cir. 1975)):

         (I)n a plea of guilty, the crime pleaded is understood only
      as related in somewhat sterile fashion through the plea taking
      process or through a printed narration in the pre-sentence
      report.  The sentencing following a trial upon the merits, on
      the other hand sees the trial judge in possession not only of
      more of the detailed facts of the offense itself, but of the
      flavor of the event and the impact upon any victims.  It is for
      that reason a more real and accurate appraisal of the
      circumstances which brought the defendant to the bar of justice,
      and almost inevitably this added knowledge will affect the
      judge's consideration of what penalty appears most appropriate.
      This can, of course, work to the benefit or the detriment of the
      defendant according to the degree of culpability shown by the
      proofs.

   /8/ See also American Bar Association Project on Minimum Standards
for Criminal Justice, Pleas of Guilty Section 1.8 and commentary at
36-52 (Approved Draft, 1968).  In addition to reflecting a measure of
contrition, a plea of guilty also permits prompt and certain, and
therefore more effective, punishment.  That, in turn, may further
justify a reduction in the severity of the punishment.  See Becker,
Crime and Punishment:  An Economic Analysis, 76 J. Pol. Econ. 169,
177-178 (1968);  Bentham, Principles of Penal Law, Pt. II, Bk. 1, ch.
6, in 1 Bentham's Works 401 (Bowring ed. 1843).