Since the fear of vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge. A person convicted of an offense is entitled to pursue his statutory right to a trial de novo absent a fear of retaliation.
Defendant Perry was in prison when he got into a fight with another inmate. Perry was charged with the misdemeanor of assault with a deadly weapon. He was convicted in the district court. Under North Carolina law, a defendant convicted in the district court has a right to a trial de novo in the superior court. Perry therefore filed notice of appeal to the superior court. However, the prosecutor then obtained an indictment charging Perry with felony assault with a deadly weapon with intent to kill or cause serious injury. Perry entered a plea of guilty. Perry argued that his felony indictment was a penalty for exercising his right to a trial de novo and violated the Due Process Clause of the Fourteenth Amendment.
Because of his guilty plea to the felony charge in the Superior Court, was defendant Perry precluded from raising his constitutional claims in this federal habeas corpus proceeding?
The Court affirmed the issuance of a writ of habeas corpus, because petitioner's charging a greater offense for the same conduct in respondent individual's de novo retrial of lower court conviction had the potential for vindictive abuse, and could unconstitutionally deter defendants from pursuing their appeal rights, and review by writ of habeas corpus of such a violation of due process was not precluded by respondent's guilty plea.