Michigan v. Payne

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. I 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 — 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.1 — 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 resentenc-ing proceedings which, as in this case, occurred prior to Pearce’s, date of decision.2 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.3 — 50 — II In Pearce, the Court emphasized that “[i]t 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. “[VJindic-tiveness” 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 ar~ — 51 — ticulated 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” 4 limitations Pearce established to guard against the possibility of vindictiveness in the resentenc-ing 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 conviction . . . [would] play no part in the sentence — 52 — he receives after a new trial . . .” and (ii) that apprehension of such vindictiveness would not “deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction. . . 395 U. S., at 725; Colten v. Kentucky, 407 U. S. 104, 116 (1972). The latter purpose is not pertinent to this case, since respondent was not deterred from exercising his right to challenge his first conviction. But, in any event, we think it clear that this function of the new resentencing rules could be served only in futuro: nothing in Pearce suggests that the Court contemplated that its decision might provide a ground for the untimely reopening of appeals by defendants who decided not to appeal prior to the date of decision in Pearce.5 See James v. Copinger, 441 F. 2d 23 (CA4 1971). The first-articulated purpose of the Pearce rules — to protect against the possibility that actual vindictiveness will infect a resentencing proceeding — deserves closer scrutiny. Unlike the purposes underlying many of the decisions heretofore accorded retrospective application,6 this purpose does not implicate the “ 'fair determination’ of . . . guilt or innocence.” Roberts v. Russell, 392 U. S. 293, 294 (1968) (emphasis supplied). It does, however, involve questions touching on the “integrity” of one aspect of the judicial process. McConnell v. Rhay, 393 U. S. 2, 3 (1968). The Pearce restrictions serve to ensure — 53 — that resentencing decisions will not be based on improper considerations, such as a judge's unarticulated resentment at having been reversed on appeal, or his subjective institutional interest in discouraging meritless appeals. By eliminating the possibility that these factors might occasion enhanced sentences, the Pearce prophylactic rules assist in guaranteeing the propriety of the sentencing phase of the criminal process. In this protective role, Pearce is analogous to Miranda v. Arizona, 384 U. S. 436 (1966), in which the Court established rules to govern police practices during custodial interrogations in order to safeguard the rights of the accused and to assure the reliability of statements made during those interrogations. Thus, the prophylactic rules in Pearce and Miranda are similar in that each was designed to preserve the integrity of a phase of the criminal process. Because of this similarity, we find that Johnson v. New Jersey, 384 U. S. 719 (1966), which held Miranda non-retroactive, provides considerable guidance here. See also Jenkins v. Delaware, 395 U. S. 213 (1969). It is an inherent attribute of prophylactic constitutional rules, such as those established in Miranda and Pearce, that their retrospective application will occasion windfall benefits for some defendants who have suffered no constitutional deprivation. Miranda’s well-known warning requirements provided a protection “against the possibility of unreliable statements in every instance of in-custody interrogation,” and thereby covered many “situations in which the danger [was] not necessarily as great as when the accused is subjected to overt and obvious coercion.” Johnson v. New Jersey, supra, at 730 (emphasis supplied). Thus, had Miranda been applied retroactively, it would have required the reversal of many convictions in which no serious constitutional violation had occurred. Id., at 731. Likewise, the retroactive application of Pearce would require the repudiation — 54 — of many sentences rendered under circumstances in which there was no genuine possibility that vindictiveness played a role. Judicial impropriety in the resentencing process, albeit intolerable wherever it happens, surely is not a common practice. Indeed, nothing in Pearce intimates that the Court regarded it as anything more than an infrequently appearing blemish on the sentencing process.7 Absent countervailing considerations rooted in the purposes underlying a new rule, this factor — that retroactive application of such broadly protective rules would occasion reversals in many instances in which no actual prejudice has been suffered — points toward a ruling of prospectivity. Nonretroactivity is also suggested by the second similarity between Miranda and Pearce. While each created a protective umbrella serving to enhance a constitutional guarantee, neither conferred a constitutional right that had not existed prior to those decisions. The right against use of an involuntary confession long preceded Miranda just as the right to be free from fundamentally unfair sentencing considerations predated Pearce. Supra, at 50. Because these foundational rights remain available to defendants in pr e-Miranda and pr e-Pearce cases, a decision of nonretroactivity is less likely to result in the continued incarceration of those whose convictions or sentences rest on unconstitutional acts.8 Linkletter v. Walker, 381 U. S., at 640 (Black, J., dissenting). — 55 — Of course, the question of the impact of particular decisions on the reliability and fairness of any aspect of a criminal proceeding is inherently a matter of balancing “probabilities.” Johnson v. New Jersey, 384 U. S., at 729; Adams v. Illinois, 405 U. S. 278, 281 (1972). Yet in view of the fact that, if retroactive, Pearce would apply to innumerable eases in which no hint of vindictiveness appears, coupled with the consideration that due process claims may always be made in those prior cases in which some evidence of retaliatory motivation exists,9 we have little doubt that the “probabilities” in this case preponderate in favor of a ruling of nonretroactivity.10 Although the remaining factors — reliance and burden on the administration of justice — have been regarded as having controlling significance “only when the purpose of the rule in question did not clearly favor either retroac-tivity or prospectivity,” Desist v. United States, 394 U. S. 244, 251 (1969), those considerations also support the nonretroactivity of Pearce. The result in Pearce was not “foreshadowed” by any prior decision of this Court.11 Indeed, prior to Pearce, resentencing judges were bound by no requirement that they articulate their reasons and — 56 — generally enjoyed a wide discretion in terms of the factors they might legitimately consider. See Williams v. New York, 337 U. S. 241 (1949). Nor could it be said that the Court's decision was clearly forecast by any trend of lower court decisions. In Pearce itself the Court noted that lower federal and state courts were divided on all of the questions posed. 395 U. S., at 715 n. 5. Under these circumstances, judicial reliance on prior law was certainly justifiable.12 Because of that reliance, it is fair to assume that in prior years few, if any, judges complied during resentenc-ing with Pearce’s recordation requirement, and that they often considered a variety of factors relating to the defendant and his crime which might or might not have fallen within the Pearce standard. We have been presented with no statistical indications as to how many persons received increased penalties after retrials.13 We cannot say, however, that the potential interference with the administration of justice would be insubstantial if Pearce were applied retroactively. In order to comply with Pearce, a resentencing judge — assuming he is still on the bench or otherwise available — would be required to make a factual determination as to the reasons for sentences he may have meted out years in the past. — 57 — Compliance with that requirement would present considerable difficulties, since judges, like witnesses in criminal trials, lack infallible memories and perfect records of their motivations.14 Linkletter v. Walker, 381 U. S., at 637. While we would not shy from imposing these burdens were we persuaded that it was necessary to do so in order to effectuate the purposes underlying Pearce, we have found no such need here. In sum, upon application of the three-part test, we hold that the Pearce requirements are not to be accorded retroactive application.15 Ill Since the resentencing hearing in this case took place approximately two years before Pearce was decided, we hold that the Michigan Supreme Court erred in applying its proscriptions here. Accordingly, the judgment of that court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Footnotes [1] In his affidavit, the second sentencing judge indicated that a different judge who presided over respondent’s prior guilty plea and sentencing hearings did not have as good an opportunity to become fully informed of the details of the “deliberate, cold-blooded attack.” In a subsequent amendatory affidavit filed by the same judge, he corrected his prior affidavit by stating that the first judge did — 49 — have “some limited opportunity to see and hear [respondent] when he testified as a witness for the prosecution against his accomplice” in a separate trial. The parties in this case now agree that the first judge did preside over the trial of respondent’s codefendant before sentencing respondent and that respondent did testify at that trial. The parties continue, however, to dispute whether that opportunity was as complete as the opportunity afforded the second judge, and, if not, whether this is a permissible consideration in resentencing under Pearce. Because of the manner in which we dispose of this case, we need not resolve this controversy. See n. 3, infra. [2] This Court has twice previously granted certiorari to resolve this question, but on each occasion the writ was dismissed as improvidently granted. Moon v. Maryland, 398 U. S. 319 (1970) (cert. granted, 395 U. S. 975 (1969)); Odom v. United States, 400 U. S. 23 (1970) (cert. granted, 399 U. S. 904 (1970)). [3] This Court has consistently declined to reach out to resolve unsettled questions regarding the scope or meaning of decisions establishing “new” constitutional requirements in cases in which it holds any such decisions nonretroactive. See Stovall v. Denno, 388 U. S. 293 (1967) (holding United States v. Wade, 388 U. S. 218 (1967), — 50 — and Gilbert v. California, 388 U. S. 263 (1967), nonretroactive without resolving the question whether those cases were applicable to pre-formal accusation confrontations, a question later decided in Kirby v. Illinois, 406 U. S. 682 (1972)); DeStefano v. Woods, 392 U. S. 631 (1968) (holding Duncan v. Louisiana, 391 U. S. 145 (1968), and Bloom v. Illinois, 391 U. S. 194 (1968), nonretroactive and declining to decide whether a summary contempt proceeding that results in a one-year sentence is a “serious” offense requiring trial by jury, a question later decided in Baldwin v. New York, 399 U. S. 66 (1970)); Carcerano v. Gladden (a companion case with DeStefano, in which the Court declined to decide whether the right to jury trial contemplated by Duncan also required a unanimous verdict, a question later decided in Apodaca v. Oregon, 406 U. S. 404 (1972)); Elkanich v. United States (a companion case with Williams v. United States, 401 U. S. 646 (1971), holding Chimel v. California, 395 U. S. 752 (1969), nonretroactive and declining to decide whether the search was otherwise compatible with the Chimel limitations on searches incident to lawful arrests). [4] Chaffin v. Stynchcombe, ante, at 25; Colten v. Kentucky, 407 U. S. 104, 116, 118 (1972). [5] This is not to suggest, of course, that there may not be specific cases in which a convicted defendant might show that his initial waiver of his right to appeal was involuntary because caused by a reasonably based fear of actual vindictiveness on the part of a particular judge. Cf. North Carolina v. Pearce, 395 U. S., at 725 n. 20. [6] See, e. g., In re Winship, 397 U. S. 358 (1970) (held retroactive in Ivan V. v. New York, 407 U. S. 203 (1972)); Barber v. Page, 390 U. S. 719 (1968) (held retroactive in Berger v. California, 393 U. S. 314 (1969)); Bruton v. United States, 391 U. S. 123 (1968) (held retroactive in Roberts v. Russell, 392 U. S. 293 (1968)); Gideon v. Wainwright, 372 U. S. 335 (1963). [7] The most that may be said is that the Court in Pearce found that “increased sentences on reconviction are far from rare,” 395 U. S., at 725 n. 20, and that it was persuaded that vindictiveness played a role in a sufficient number of those cases to “warrant the imposition of a prophylactic rule.” Colten v. Kentucky, 407 U. S., at 116. [8] See Johnson v. New Jersey, 384 U. S. 719 (1966). See also Stovall v. Denno, 388 U. S., at 299 (in pxe-Wade-Gilbert cases “it remains open to all persons to allege and prove . . . that the confrontation . . . infringed'his right to due process of law”); cf. Halliday v. United States, 394 U. S. 831, 833 (1969). [9] Of course, it remains true that “retaliatory motivation” may be “difficult to prove in any individual case.” North Carolina v. Pearce, 395 U. S., at 725 n. 20. And, this is certainly one of the reasons why the Court in Pearce adopted prophylactic rules. Similar problems of proof prompted the decisions in Miranda and Wade, but such problems in themselves were not sufficient to warrant retrospective application. [10] We reiterate here what the Court has repeatedly said in retro-activity cases: “[W]e do not disparage a constitutional guarantee in any manner by declining to apply it retroactively.” Johnson v. New Jersey, 384 U. S., at 728; cf. Linkletter v. Walker, 381 U. S. 618, 629 (1965). [11] Compare Berger v. California, 393 U. S. 314 (1969), and Roberts v. Russell, 392 U. S. 293 (1968), with Adams v. Illinois, 405 U. S. 278 (1972), and Johnson v. New Jersey, supra, at 731. [12] We need not disagree with Mr. Justice Marshall’s notation, post, at 66 n. 9, that the result in Pearce was foreshadowed, i. e., that higher sentences on retrial were being questioned. Our focus here, however, is on the prophylactic measure adopted to achieve that result. As to this, we do not think there is any serious question that neither the recordation requirement nor the limitations on matters to be considered were so clearly forecast as to render a contrary state reliance unjustifiable. [13] See Note, Constitutional Law: Increased Sentence and Denial of Credit on Retrial Sustained under Traditional Waiver Theory, 1965 Duke L. J. 395, 399 n. 25 (informal survey of North Carolina courts showed that six of 50 reconvicted defendants received higher sentences). [14] Thus, the retroactivity of Pearce would present difficulties not encountered in two of the Court’s recent decisions holding retroactive cases involving resentencing: Furman v. Georgia, 408 U. S. 238 (1972) (the “death penalty” case); Robinson v. Neil, 409 U. S. 505 (1973) (holding Waller v. Florida, 397 U. S. 387 (1970) retroactive). In both cases, “[t]hat which was constitutionally invalid could be isolated and excised without requiring the State to begin the entire factfinding process anew.” Robinson v. Neil, supra, at 510. [15] Respondent, relying on Linkletter v. Walker, supra, and Tehan v. Shott, 382 U. S. 406 (1966), urges the Court to distinguish between cases, like his, on direct appeal and those arising after a conviction and sentence have become final. We think the above-stated reasons for applying Pearce prospectively apply with equal force to all cases in which resentencing proceedings occurred before June 23, 1969, the date of decision in Pearce. See Stovall v. Denno, 388 U. S., at 300; Desist v. United States, 394 U. S., at 252; Williams v. United States, 401 U. S., at 651-652.