OPINION OF THE COURT
GARTH, Circuit Judge:
This appeal from the defendant's guilty plea asserts error in the denial of a pre-plea motion and attacks the validity of the sentence imposed. We conclude on the authority of Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), that the defendant's guilty plea forecloses our consideration of his pre-plea motion. However, holding that the district court's sentence was infirm under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), we vacate and remand for re-sentencing.
I.
In May, 1973 a federal grand jury in the Western District of Pennsylvania returned a two-count indictment against Simon Hawthorne for violating 21 U.S.C. § 841(a)(1) (distribution of cocaine).
Upon the Government's motion, the district court dismissed Count I of the indictment.
Thereafter, Hawthorne sought to withdraw his guilty plea. The district court denied the motion. On appeal this Court vacated the district court's order and remanded to permit Hawthorne to unequivocally explain the reasons which he claimed vitiated his plea. United States v. Hawthorne, 502 F.2d 1183 (3d Cir. 1974). After remand the district court granted Hawthorne's motion to withdraw his guilty plea.
Hawthorne was arraigned again on November 13, 1974. At that time the district court vacated its earlier order dismissing Count I of the indictment and ordered that count reinstated. Hawthorne then filed a pretrial motion to dismiss Count I of the indictment
Following a three month study period ordered under 18 U.S.C. § 4208(c), the district court, without making reference to
Thus, the custodial portion of the 1975 sentence was the same as the one pronounced in 1973, and the special parole term was three years instead of five years. The 1973 sentence provided that appellant would become eligible for parole under § 4208(a)(2) at such time as the Board of Parole may determine; the 1975 sentence contained no similar provision. On the Government's motion, the district court dismissed Count I of the indictment. Hawthorne filed a timely notice of appeal from this sentence.
Thereafter Hawthorne moved under Rule 35, Fed.R.Crim.P., to correct his sentence so as to establish parole eligibility at the discretion of the Parole Board under 18 U.S.C. § 4208(a)(2). Apparently under the belief that Hawthorne's appeal from the sentence deprived it of jurisdiction, the district court issued a memorandum which discussed and justified its sentence without specifically ruling on Hawthorne's motion. Hawthorne filed still another notice of appeal from this memorandum.
This Court has jurisdiction of the appeal from the sentence entered on May 9, 1975 pursuant to 28 U.S.C. § 1291. Since the district court only filed an opinion but did not enter an order denying Hawthorne's Rule 35 motion, there is no final decision as to this motion. However, since all of Hawthorne's arguments are raised by his appeal from the sentence of May 9, 1975, our lack of jurisdiction as to the Rule 35 motion has no bearing upon the issues presented.
II.
Initially, Hawthorne contends that the guilty plea to Count II was somehow less than voluntary because of the district court's denial of his pre-plea motion to dismiss Count I. Through his pre-plea motion Hawthorne sought to ascertain the maximum sentence which he faced if he were to proceed to trial on both counts. His uncertainty stemmed from the fact that the plea negotiations of 1973 resulted in the withdrawal of Count I, which Count had now been reinstated. Thus, he faced a two-count indictment and was uncertain as to whether he could be convicted and sentenced on both counts.
The district court denied Hawthorne's motion to dismiss Count I and stated with respect to the maximum sentence possible under the indictment:
Hawthorne then participated in new plea negotiations resulting in his guilty plea to Count II and the Government's motion to dismiss Count I.
Initially, we observe that this guilty plea was not conditional, as in United States v. Zudick, 523 F.2d 848 (3d Cir. 1975). He did not make his guilty plea expressly contingent upon a reservation of the right to challenge any specifics of the pre-plea proceedings. Instead, Hawthorne relies upon the separate bases reflected by the rules enunciated in Kelsey v. United States, 484 F.2d 1198 (3d Cir. 1973) and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). In response the Government argues that Hawthorne's failure to attack the voluntariness of his guilty plea to Count II precludes this Court from examining the merits of his pre-plea motion.
Hawthorne's reliance upon Kelsey v. United States, supra, is totally misplaced. In Kelsey this Court held that a guilty plea cannot be said to be voluntarily and understandingly made
Hawthorne does not allege that he was misinformed as to the consequences of his guilty plea to Count II. Rather, he claims that he could not, with informed consent, plead guilty to Count II without first being informed of the maximum sentence to which he was exposed under both counts if he proceeded to trial. Kelsey offers no support for this argument.
Nor is Rule 11, Fed.R.Crim.P.,
The district court judge properly refused to render an advisory opinion prior to trial as to the dimensions of the sentence which might be imposed on conviction under all counts of the indictment. We find no error in the district court's acceptance of Hawthorne's plea under these circumstances.
The second prong to Hawthorne's argument is based upon Blackledge v. Perry, which represents an exception to the consequences of the guilty plea announced in Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973):
Blackledge held that respondent Perry was not barred by his guilty plea to a felony indictment from challenging the constitutionality of that indictment under the Due Process Clause of the Fourteenth Amendment. Perry had been convicted of the misdemeanor of assault with a deadly weapon in the District Court of Northhampton County, North Carolina. He filed a notice of appeal which entitled him under state law to a trial de novo in the County Superior Court. After the filing of this appeal but before trial, the prosecutor obtained a felony indictment based upon the same conduct charging Perry with assault with a deadly weapon with intent to kill and inflict serious bodily injury. Perry then pleaded guilty to the felony indictment.
The Supreme Court held that the guilty plea did not foreclose Perry's assertion of his rights under the Due Process Clause of the Fourteenth Amendment. The Court carved out an exception to Tollett as follows:
Id., 417 U.S. at 30-31, 94 S.Ct. at 2103; see Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); United States v. Sams, 521 F.2d 421 (3d Cir. 1975).
However, Hawthorne cannot avail himself of the rule of Blackledge. Hawthorne does not, as in Blackledge, seek to attack on due process grounds the count to which he pleaded guilty. Rather, he seeks to invalidate his plea on the basis of a count to which he did not plead guilty and that was in fact dismissed. Blackledge offers no support in this situation.
Thus, in the absence of any claim by Hawthorne that his plea to Count II was not voluntarily and intelligently made or that the Government lacked the power to prosecute Count II, he may not "raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, supra, 411 U.S. at 267, 93 S.Ct. at 1608. We, therefore, reject Hawthorne's arguments stemming from his pretrial motion to dismiss Count I.
III.
Finally, Hawthorne asserts that the district court's sentence of May 9, 1975 violated his due process rights under North Carolina v. Pearce, supra. On August 21, 1973, after Hawthorne's first guilty plea, he was sentenced to prison for ten years with parole eligibility under 18 U.S.C. § 4208(a)(2) and a special parole term of five years.
Initially, we are confronted with a threshold question as to the applicability of North Carolina v. Pearce in the federal system. Pearce presented the question of whether a defendant who had successfully appealed from a state criminal conviction could be sentenced following retrial to a longer total sentence than had been originally
395 U.S. at 725-26, 89 S.Ct. at 2080. Nothing in this language restricts this constitutional principle to state cases only. It is axiomatic that it applies to the federal system as well.
However, subsequent Supreme Court cases have revealed 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.'" Blackledge v. Perry, supra, 417 U.S. at 27, 94 S.Ct. at 2102. Thus, the Court did not hold Pearce applicable to the possibility of increased sentences in a two-tiered system of criminal adjudication that provided for trials de novo in a court of general jurisdiction following conviction in a lower court, Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), or in a criminal system where the jury was entrusted with sentencing, Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973).
We conclude, as did the Fifth Circuit in United States v. Floyd, 519 F.2d 1031 (5th Cir. 1975), that North Carolina v. Pearce is applicable to the re-sentencing of a defendant under the circumstances presented here. We acknowledge that Hawthorne was re-sentenced by a different judge who consciously sought to insulate himself from knowledge of the prior proceedings. However, we must recognize that, under the circumstances present here, the re-sentencing judge was potentially "sensitive to the institutional interests that might occasion higher sentences . . .." Chaffin v. Stynchcombe, supra, 412 U.S. at 27, 93 S.Ct. at 1983; United States v. Floyd, supra. Furthermore, we note that the defendant in North Carolina v. Pearce was sentenced by a different judge of the same court after his appeal.
Having determined that North Carolina v. Pearce is applicable, we must resolve the question of whether the sentence of May 9, 1975, with parole eligibility governed by 18 U.S.C. § 4202,
We conclude that Hawthorne's re-sentence to the identical term of ten years with parole governed by 18 U.S.C. § 4202 was a harsher sentence than his previous sentence pursuant to 18 U.S.C. § 4208(a)(2). The earlier sentence of August 21, 1973 provided that "defendant may become eligible for parole at such time as the Board of Parole may determine" under 18 U.S.C. § 4208(a)(2).
Nor is this possibility of parole prior to the completion of one-third of the sentence purely theoretical. Although this Court has as yet not passed upon the issue, we note that two Circuits have interpreted 18 U.S.C. § 4208(a)(2) as requiring the Board of Parole to "give meaningful consideration to parole prior to the time the Board would do so if the prisoner had been sentenced under § 4202." Garafola v. Benson, 505 F.2d 1212, 1219 (7th Cir. 1974); Grasso v. Norton, 520 F.2d 27, 35 (2d Cir. 1975). Thus, we conclude that the district court's failure to re-sentence Hawthorne under Section 4208(a)(2) with parole "at such time as the Board of Parole may determine" deprived him of the possibility of earlier parole eligibility. Accordingly, the district court's sentence of May 9, 1975 constituted a more severe sentence than the earlier sentence of August 21, 1973 within the meaning of North Carolina v. Pearce, supra.
Inasmuch as the record discloses that the district judge at the May 9, 1975 sentencing had no "objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original proceeding," North Carolina v. Pearce, supra, 395 U.S. at 726, 89 S.Ct. at 2081, Hawthorne could not have his parole
We will vacate the district court's sentence of May 9, 1975 and remand to the district court for re-sentencing consistent with this opinion.
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