author: Mr. Justice Stewart Mr. Justice Rehnquist,

text:
    BLACKLEDGE, WARDEN, et al. v. PERRY
    No. 72-1660.
    Argued February 19, 1974
    Decided May 20, 1974
    Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and Douglas, BrenNAN, White, Marshall, and BlackmuN, JJ., joined. RehNQuist, J., filed a dissenting opinion, in Part II of which Powell, J., joined, post, p. 32.

      Richard N. League, Assistant Attorney General of North Carolina, argued the cause for petitioners. With him on the brief was Robert Morgan, Attorney General.

      James E. Keenan, by appointment of the Court, 414 U. S. 1020, argued the cause and filed a brief for respondent.
   Mr. Justice Stewart

delivered the opinion of the Court.

While serving a term of imprisonment in a North Carolina penitentiary, the respondent Perry became involved in an altercation with another inmate. A warrant issued, charging Perry with the misdemeanor of assault with a deadly weapon, N. C. Gen. Stat. §14-33 (b)(1) (1969). Under North Carolina law, the District Court Division of the General Court of Justice has exclusive jurisdiction for the trial of misdemeanors. N. C. Gen. Stat. § 7A-272. Following a trial without a jury in the District Court of Northampton County, Perry was convicted of this misdemeanor and given a six-month sentence, to be served after completion of the prison term he was then serving.

Perry then filed a notice of appeal to the Northampton County Superior Court. Under North Carolina law, a person convicted in the District Court has a right to a trial de novo in the Superior Court. N. C. Gen. Stat. §§ 7A-290, 15-177.1. The right to trial dé novo is absolute, there being no need for the appellant to allege error in the original proceeding. When an appeal is taken, the statutory scheme provides that the slate is wiped clean ; the prior conviction is annulled, and the prosecution and the defense begin anew in the Superior Court.

After the filing of the notice of appeal, but prior to the respondent’s appearance for trial de novo in the Superior Court, the prosecutor obtained an indictment from a grand jury, charging Perry with the felony of assault with a deadly weapon with intent to kill and inflict serious bodily injury, N. C. Gen. Stat. § 14-32 (a) (1969). The indictment covered the same conduct for which Perry had been tried and convicted in the District Court. Perry entered a plea of guilty to the indictment in the Superior Court, and was sentenced to a term of five to seven years in the penitentiary, to be served concurrently with the identical prison sentence he was then serving.

A number of months later, the respondent filed an application for a writ of habeas corpus in the United States District Court for the Eastern District of North Carolina. He claimed that the indictment on the felony charge in the Superior Court constituted double jeopardy and also deprived him of due process of law. In an unreported opinion, the District Court dismissed the petition for failure to exhaust available state remedies. The United States Court of Appeals for the Fourth Circuit reversed, holding that resort to the state courts would be futile, because the Supreme Court of North Carolina had consistently rejected the constitutional claims presented by Perry in his petition. 453 F. 2d 856. The case was remanded to the District Court for further proceedings.

On remand, the District Court granted the writ. It held that the bringing of the felony charge after the filing of the appeal violated Perry’s rights under the Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784. The District Court further held that the respondent had not, by his guilty plea in the Superior Court, waived his right to raise his constitutional claims in the federal habeas corpus proceeding. The Court of Appeals affirmed the judgment in a brief per curiam opinion. We granted certiorari, 414 U. S. 908, to consider the seemingly important issues presented by this case.

I

As in the District Court, Perry directs two independent constitutional attacks upon the conduct of the State in baling him into court on the felony charge after he took an appeal from the misdemeanor conviction. First, he contends that the felony indictment in the Superior Court placed him in double jeopardy, since he had already been convicted on the lesser included misdemeanor charge in the District Court. Second, he urges that the indictment on the felony charge constituted a penalty for his exercising his statutory right to appeal, and thus contravened the Due Process Clause of the Fourteenth Amendment. We find it necessary to reach only the latter claim.

Perry’s due process arguments are derived substantially from North Carolina v. Pearce, 395 U. S. 711, and its progeny. In Pearce, the Court considered the constitutional problems presented when, following a successful appeal and reconviction, a criminal defendant was subjected to a greater punishment than that imposed at the first trial. While we concluded that such a harsher sentence was not absolutely precluded by either the Double Jeopardy or Due Process Clause, we emphasized that “imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be ... a violation of due process of law.” Id., at 724. Because “vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial,” id., at 725, we held that an increased sentence could not be imposed upon retrial unless the sentencing judge placed certain specified findings on the record.

In Colten v. Kentucky, 407 U. S. 104, the Court was called upon to decide the applicability of the Pearce holding to Kentucky's two-tiered system of criminal adjudication. Kentucky, like North Carolina, allows a misdemeanor defendant convicted in an inferior trial court to seek a trial de novo in a court of general jurisdiction. The appellant in Colten claimed that the Constitution prevented the court of general jurisdiction, after trial de novo, from imposing a sentence in excess of that imposed in the court of original trial. This Court rejected the Pearce analogy. Emphasizing that Pearce was directed at insuring the absence of “vindictiveness” against a criminal defendant who attacked his initial conviction on appeal, the Court found such dangers greatly minimized on the facts presented in Colten. In contrast to Pearce, the court that imposed the increased sentence after retrial in Colten was not the one whose original judgment had prompted an appellate reversal; thus, there was little possibility that an increased sentence on trial de novo could have been motivated by personal vindictiveness on the part of the sentencing judge. Hence, the Court thought the prophylactic rule of Pearce unnecessary in the de novo trial and sentencing context of Colten.

The Pearce decision was again interpreted by this Court last Term in Chaffin v. Stynchcombe, 412 U. S. 17, in the setting of Georgia's system under which sentencing responsibility is entrusted to the jury. Upon retrial following the reversal of his original conviction, the defendant in Chaffin was reconvicted and sentenced to a greater term than had been imposed by the initial jury. Concentrating again on the issue of vindictiveness, the Court found no violation of the Pearce rule. It was noted that the second jury was completely unaware of the original sentence, and thus could hardly have sought to “punish” Chaffin for his successful appeal. Moreover, the jury, unlike a judge who had been reversed on appeal, could hardly have a stake in the prior conviction or any motivation to discourage criminal defendants from seeking appellate review. Hence, it was concluded that the danger of vindictiveness under the circumstances of the case was “de minimis,” id., at 26, and did not require adoption of the constitutional rule set out in Pearce.

The lesson that emerges from Pearce, Colten, and Chaffin is 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.” Unlike the circumstances presented by those cases, however, in the situation here the tíentral figure is not the judge or the jury, but the prosecutor. The question is whether 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. We conclude that the answer must be in the affirmative.

A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a trial de novo in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources before the defendant's conviction becomes final, and may even result in a formerly convicted defendant’s going free. And, if the prosecutor has the means readily at hand to discourage such appeals — by “upping the ante” through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy — the State can insure that only the most hardy defendants will brave the hazards of a de novo trial.

There is, of course, no evidence that the prosecutor in this case acted in bad faith or maliciously in seeking a felony indictment against Perry. The rationale of our judgment in the Pearce case, however, was not grounded upon the proposition that actual retaliatory motivation must inevitably exist. Rather, we emphasized that “since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his' first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” 395 U. S., at 725. We think it clear that the same considerations apply here. A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration. Cf. United States v. Jackson, 390 U. S. 570.

Due. process of law requires that such a potential for vindictiveness must not enter into North Carolina’s two-tiered appellate process. We hold, therefore, that it was not constitutionally permissible for the State to respond to Perry’s invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo.

II

The remaining question is whether, because of his guilty plea to the felony charge in the Superior Court, Perry is precluded from raising his constitutional claims in this federal habeas corpus proceeding. In contending that such is the case, petitioners rely chiefly on this Court’s decision last Term in Tollett v. Henderson, 411 U. S. 258.

The precise issue presented in Tollett was “whether a state prisoner, pleading guilty with the advice of counsel, may later obtain release through federal habeas corpus by proving only that the indictment to which he pleaded was returned by an unconstitutionally selected grand jury.” Id., at 260. The Court answered that question in the negative. Relying primarily on the guilty-plea trilogy of Brady v. United States, 397 U. S. 742, McMann v. Richardson, 397 U. S. 759, and Parker v. North Carolina, 397 U. S. 790, the Court characterized the guilty plea as “a break in the chain of events which has preceded it in the criminal process.” 411 U. S., at 267. Accordingly, the Court held that when a criminal defendant enters a guilty plea, “he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Ibid. Rather, a person complaining of such “antecedent constitutional violations,” id., at 266, is limited in a federal habeas corpus proceeding to attacks on the voluntary and intelligent nature of the guilty plea, through proof that the advice received from counsel was not “within the range of competence demanded of attorneys in criminal cases.” See McMann, supra, at 771.

While petitioners’ reliance upon the Tollett opinion is understandable, there is a fundamental distinction between this case and that one. Although the underlying claims presented in Tollett and the Brady trilogy were of constitutional dimensions, none went to the very power of the State to bring the defendant into court to answer the charge brought against him. The defendants in McMann v. Richardson, for example, could surely have been brought to trial without the use of the allegedly coerced confessions, and even a tainted indictment of the sort alleged in Tollett could have been “cured” through a new indictment by a properly selected grand jury. In the case at hand, by contrast, the nature of the underlying constitutional infirmity is markedly different. Having chosen originally to proceed on the misdemeanor charge in the District Court; the State of North Carolina was, under the facts of this case, simply precluded by the Due Process Clause from calling upon the respondent to answer to the more serious charge in the Superior Court. Unlike the defendant in Tollett, Perry is not complaining of “antecedent constitutional violations” or of a “deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” 411 U. S., at 266, 267. Rather, the right that he asserts and that we today accept is the right not to be haled into court at all upon the felony charge. The very initiation of the proceedings against him in the Superior Court thus operated to deny him due process of law.

Last Term in Robinson v. Neil, 409 U. S. 505, in explaining why the Double Jeopardy Clause is distinctive, the Court noted that “its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial.” Id., at 509. While our judgment today is not based upon the Double Jeopardy Clause, we think that the quoted language aptly describes the due process right upon which our judgment is based. The “practical result” dictated by the Due Process Clause in this case is that North Carolina simply could not permissibly require Perry to answer to the felony charge. That being so, it follows that his guilty plea did not foreclose him from attacking his conviction in the Superior Court proceedings through a federal writ of habeas corpus.

Accordingly, the judgment of the Court of Appeals for the Fourth Circuit is affirmed. R sQ

Mr. Justice Rehnquist,

dissenting.

I would find it more difficult than the Court apparently does in Part I of its opinion to conclude that the very bringing of more serious charges against respondent following his request for a trial de novo violated due process as defined in North Carolina v. Pearce, 395 U. S. 711 (1969). Still more importantly, I believe the Court’s conclusion that respondent may assert the Court’s new-found Pearce claim in this federal habeas action, despite his plea of guilty to the charges brought after his invocation of his statutory right to a trial de novo, marks an unwarranted departure from the principles we have recently enunciated in Tollett v. Henderson, 411 U. S. 258 (1973), and the Brady trilogy, Brady v. United States, 397 U. S. 742 (1970); McMann v. Richardson, 397 U. S. 759 (1970); and Parker v. North Carolina, 397 U. S. 790 (1970).

I

As the Court notes, in addition to his claim based on Pearce, respondent contends that his felony indictment in the Superior Court violated his rights under the Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784 (1969). Presumably because we have earlier held that “the jeopardy incident to” a trial does “not extend to an offense beyond [the trial court’s] jurisdiction,” Diaz v. United States, 223 U. S. 442, 449 (1912), the Court rests its decision instead on the Fourteenth Amendment due process doctrine of Pearce. In so doing, I think the Court too readily equates the role of the prosecutor, who is a natural adversary of the defendant and who, we observed in Chaffin v. Stynchcombe, 412 U. S. 17, 27 n. 13 (1973), “often request [s] more than [he] can reasonably expect to get,” with that of the sentencing judge in Pearce. I also think the Court passes too lightly over the reasoning of Colten v. Kentucky, 407 U. S. 104 (1972), in which we held that imposition of the prophylactic rule of Pearce was not necessary in Kentucky’s two-tier system for de novo appeals from justice court convictions, even though the judge at retrial might impose a more severe sentence than had been imposed by the justice court after the original trial.

The concurring opinion in Pearce, 395 U. S. 711, 726, took the position that the imposition of a penalty after retrial which exceeded the penalty imposed after the first trial violated the guarantee against double jeopardy. But the opinion of the Court, relying on cases such as United States v. Ball, 163 U. S. 662 (1896), and Stroud v. United States, 251 U. S. 15 (1919), specifically rejected such an approach to the case. The Court went on to hold “that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction.” 395 U. S., at 723. The Court concluded by holding that due process “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” Id., at 725. To make certain that those requirements of due process were met, the Court laid down the rule 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.” Id., at 726. Thus the avowed purpose of the remedy fashioned in Pearce was to prevent judicial vindictiveness from resulting in longer sentences after a retrial following successful appeal.

Since in theory if not in practice the second sentence in the Pearce situation might be expected to be the same as the first unless influenced by vindictiveness or by intervening conduct of the defendant, in theory at least the remedy mandated there reached no further than the identified wrong. The same cannot be said here. For while indictment on more serious charges after a successful appeal would present a problem closely analogous to that in Pearce in this respect, the bringing of more serious charges after a defendant’s exercise of his absolute right to a trial de novo in North Carolina’s two-tier system does not. The prosecutor here elected to proceed initially in the State District Court where felony charges could not be prosecuted, for reasons which may well have been unrelated to whether he believed respondent was guilty of and could be convicted of the felony with which he was later charged. Both prosecutor and defendant stand to benefit from an initial prosecution in the District Court, the prosecutor at least from its less burdensome procedures and the defendant from the opportunity for an initial acquittal and the limited penalties. With the countervailing reasons for proceeding only on the misdemeanor charge in the District Court no longer applicable once the defendant has invoked his statutory right to a trial de novo, a prosecutor need not be vindictive to seek to indict and convict a defendant of the more serious of the two crimes of which he believes him guilty. Thus even if one accepts the Court’s equation of prosecutorial vindictiveness with judicial vindictiveness, here, unlike Pearce, the Court’s remedy reaches far beyond the wrong it identifies.

Indeed, it is not a little puzzling that the Court’s remedy is the same that would follow upon a conclusion that the bringing of the new charges violated respondent’s rights under the Double Jeopardy Clause. And the Court’s conclusion that “[t]he very initiation of the proceedings against [respondent] in the Superior Court thus operated to deny him due process of law” surely sounds in the language of double jeopardy, however it may be dressed in due process garb.

II

If the Court is correct in stating the consequences of upholding respondent’s constitutional claim here, and indeed the State lacked the very power to bring him to trial, I believe this case is governed by cases culminating in Tollett v. Henderson, 411 U. S. 258 (1973). In that case the State no doubt lacked “power” to bring Henderson to trial without a valid grand jury indictment; yet that constitutional disability was held by us to be merged in the guilty plea. I do not see why a constitutional claim the consequences of which make it the identical twin of double jeopardy may not, like double jeopardy, be waived by the person for whose benefit it is accorded. Kepner v. United States, 195 U. S. 100, 131 (1904); Harris v. United States, 237 F. 2d 274, 277 (CA8 1956); Kistner v. United States, 332 F. 2d 978, 980 (CA8 1964).

In Tollett v. Henderson, supra, we held that “just as the guilty pleas in the Brady trilogy were found to foreclose direct inquiry into the merits of claimed antecedent constitutional violations there, . . . respondent’s guilty plea here alike forecloses independent inquiry into the claim of discrimination in the selection of the grand jury.” 411 U. S., at 266. Surely the due process violation found by the Court today is no less “antecedent” than the constitutional violations claimed to make the grand jury indictment invalid in Tollett v. Henderson, the confession inadmissible in McMann, or the exercise of the right to a jury trial impermissibly burdened in Brady and Parker. As the Court notes, we reaffirmed in Tollett v. Henderson the principle of the Brady trilogy that “a guilty plea represents a break in the chain of events which has preceded it in the criminal process.” 411 U. S., at 267. We went on to say there:

“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.” Ibid.

The assertion by the Court that this reasoning is somehow inapplicable here because the claim goes “to the very power of the State to bring the defendant into court to answer the charge brought against him” is little other than a conclusion. Any difference between the issue resolved the other way in Tollett v. Henderson and the issue before us today is at most semantic. But the Court’s “test” not only fails to distinguish Henderson; it also fails to provide any reasoned basis on which to approach such questions as whether a speedy trial claim is merged in a guilty plea. I believe the Court’s departure today from the principles of Henderson and the cases preceding it must be recognized as a potentially major breach in the wall of certainty surrounding guilty pleas for which we have found constitutional sanction in those cases.

There is no indication in this record that respondent’s guilty plea was the result of an agreement with the prosecutor. But the Court's basis for distinguishing the Henderson and Brady cases seems so insubstantial as to permit the doctrine of this case to apply to guilty pleas which have been obtained as a result of “plea bargains.” In that event it will be not merely the State which stands to lose, but the accused defendant in the position of the respondent as well. Since the great majority of criminal cases are resolved by plea bargaining, defendants as a class have at least as great an interest in the finality of voluntary guilty pleas as do prosecutors. If that finality may be swept aside with the ease exhibited by the Court's approach today, prosecutors will have a reduced incentive to bargain, to the detriment of the many defendants for whom plea bargaining offers the only hope for ameliorating the consequences to them of a serious criminal charge.

Ill

But if, as I believe, a proper analysis of respondent's constitutional claim produces at most a violation of the standards laid down in North Carolina v. Pearce, supra, I agree with the Court, though not for the reasons it gives, that respondent’s claim was not merged in his guilty plea. Imposition of sentence in violation of Pearce is not an “antecedent constitutional violation,” since sentence is customarily imposed after a plea of guilty, and is a separate legal event from the determination by the Court that the defendant is in fact guilty of the offense with which he is charged.

If respondent's claim is properly analyzed in terms of Pearce, I would think that a result quite different from that mandated in the Court’s opinion would obtain. Pearce and the decisions following it have made it clear that the wrong lies in the increased sentence, not in the judgment of conviction, and that the remedy for a Pearce defect is a remand for sentencing consistent with due process. North Carolina v. Rice, 404 U. S. 244, 247-248 (1971). In Rice we concluded that the Court of Appeals had erred in ruling that Pearce authorized the expunging of Rice’s conviction after his trial de novo in North Carolina:

“It could not be clearer . . . that Pearce does not invalidate the conviction that resulted from Rice’s second trial .... Pearce, in short, requires only resentencing; the conviction is not ipso facto set aside and a new trial required. Even if the higher sentence imposed after Rice’s trial d& novo was vulnerable under Pearce, Rice was entitled neither to have his conviction erased nor to avoid the collateral consequences flowing from that conviction and a proper sentence.” Ibid.

Since Rice had completely served his sentence, rather than reaching the merits of Rice’s Pearce claim, we remanded for a determination whether any collateral consequences flowed from his service of the longer sentence imposed after retrial, or whether the case was moot.

Here, while respondent faced the prospect of a more severe sentence at the conclusion of his felony trial in the Superior Court of North Carolina, it was by no means self-evident that this would be the result. The maximum sentence which he could receive on the misdemeanor count was one and one-half years, but nothing in the record indicates that the Superior Court judge might not impose a lesser penalty than that, or even grant probation. Nor is there any indication in the habeas record, which contains only a fragment of the state court proceedings, that the Superior Court judge might not at the conclusion of the trial and after a verdict of guilty have before him for sentencing purposes information which would support an augmented sentence under Pearce. In fact, the habeas court found that the sentence actually imposed was more severe than that which could have been imposed under the misdemeanor charge. But the remedy for that violation should be a direction to the state court to resentence in accordance with Pearce, rather than an order completely annulling the conviction. Respondent was originally convicted of assaulting a fellow inmate with a deadly weapon, and later pleaded guilty to a charge of assaulting the inmate with a deadly weapon with intent to kill him. But in spite of both a verdict of guilty on one charge and a plea of guilty to the other, the Court’s decision may well, as a practical matter, assure that no penalty whatever will be imposed on him.

Mr. Justice Powell joins in Part II of this opinion.

       See generally State v. Spencer, 276 N. C. 535, 173 S. E. 2d 765; State v. Sparrow, 276 N. C. 499, 173 S. E. 2d 897.

       The respondent’s guilty plea was apparently premised on the expectation that any sentence he received in the Superior Court would be served concurrently with the sentence he was then serving, as contrasted with the consecutive sentence imposed in the District Court. That expectation was fulfilled, but it turned out that the guilty plea resulted in increasing the respondent’s potential term of incarceration. Under applicable North Carolina law, the five- to seven-year assault sentence did not commence until the date of the guilty plea, October 29, 1969. By that time, Perry had already served some 17 months of the sentence he was serving at the time of the alleged assault. Thus, the effect of the five- to seven-year concurrent sentence on the assault charge was to increase his potential period of confinement by these 17 months, as opposed to the six-month increase envisaged by the District Court’s consecutive sentence.

       The Court of Appeals further instructed the District Court to await the ruling of this Court in Rice v. North Carolina, 434 F. 2d 297 (CA4), cert. granted, 401 U. S. 1008. Rice involved a challenge to the constitutionality of an enhanced penalty received after a criminal defendant had sought a trial de novo under North Carolina’s two-tiered misdemeanor adjudication system. This Court did not reach the merits of this issue in Rice, instead vacating and remanding to the Court of Appeals for consideration as to whether the case had become moot. 404 U. S. 244.
      Subsequently, in Colten v. Kentucky, 407 U. S. 104, we dealt with the merits of this issue, and held that the imposition of an increased sentence on trial de novo did not violate either the Due Process or the Double Jeopardy Clause. The District Court in the present case had the benefit of the Colten decision before issuing its opinion granting habeas corpus relief.

       This Court has never held that the States are constitutionally-required to establish avenues of appellate review of criminal convictions. Nonetheless, “it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.” Rinaldi v. Yeager, 384 U. S. 305, 310. See also Griffin v. Illinois, 351 U. S. 12; Douglas v. California, 372 U. S. 353; Lane v. Brown, 372 U. S. 477; Draper v. Washington, 372 U. S. 487; North Carolina v. Pearce, 395 U. S. 711, 724-725; Chaffin v. Stynchcombe, 412 U. S. 17, 24 n. 11.

       For a more exhaustive list of States employing similar two-tiered procedures, see Colten, supra, at 112 n. 4.

       Moreover, even putting to one side the potentiality of increased incarceration, conviction of a “felony” often entails more serious collateral consequences than those incurred through a misdemeanor conviction. See generally Special Project, The Collateral Consequences of a Criminal Conviction, 23 Vand. L. Rev. 929, 955-960; Note, Civil Disabilities of Felons, 53 Va. L. Rev. 403, 406-408. Cf. O’Brien v. Skinner, 414 U. S. 524 (involving New York law under which convicted misdemeanants retain the right to vote).

       This would clearly be a different case if the State had shown that it was impossible to proceed on the more serious charge at the outset, as in Diaz v. United States, 223 U. S. 442. In that case the defendant was originally tried and convicted for assault and battery. Subsequent to the original trial, the assault victim died, and the defendant was then tried and convicted for homicide. Obviously, it would not have been possible for the authorities in Diaz to have originally proceeded against the defendant on the more serious charge, since the crime of homicide was not complete until after the victim’s death.

       Contrary to the dissenting opinion, our decision today does not “assure that no penalty whatever will be imposed” on respondent. Post, at 39. While the Due Process Clause of the Fourteenth Amendment bars trial of Perry on the felony assault charges in the Superior Court, North Carolina is wholly free to conduct a trial de novo in the Superior Court on the original misdemeanor assault charge. Indeed, this is precisely the course that Perry has invited, by filing an appeal from the original judgment of the District Court.
      The dissenting opinion also seems to misconceive the nature of the due process right at stake here. If this were a case involving simply an increased sentence violative of the Pearce rule, a remand for resentencing would be in order. Our holding today, however, is not that Perry was denied due process by the length of the sentence imposed by the Superior Court, but rather by the very institution of the felony indictment against him. While we reach this conclusion in partial reliance on the analogy of Pearce and its progeny, the due process violation here is not the same as was involved in those cases, and cannot be remedied solely through a resentencing procedure in the Superior Court. Cf. n. 6, supra.


source: Caselaw Access Project

author: Mr. Justice Stewart Mr. Justice Douglas, Mr. Justice Marshall,

license: Public Domain

text:
    FULLER v. OREGON
    No. 73-5280.
    Argued March 26, 1974
    Decided May 20, 1974

      Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blacicmun, Powell, and Rehnquist, JJ., joined. Douglas, J., filed an opinion concurring in the judgment, post, p. 54. Marshall, J., filed a dissenting opinion, in which BreNNAN, J., joined, post, p. 59.

      J. Marvin Kuhn argued the cause and filed a brief for petitioner.

      W. Michael Gillette, Solicitor General of Oregon, argued the cause for respondent. With him on the brief was Lee Johnson, Attorney General.

        Richard S. Buckley, Marshall J. Hartman, and Wilbur F. Little-field filed a brief for the National Legal Aid and Defender Assn, as amicus curiae urging reversal.

   Mr. Justice Stewart

delivered the opinion of the Court.

In this case we are called upon to determine whether Oregon may constitutionally require a person convicted of a criminal offense to repay to the State the costs of providing him with effective representation of counsel, when he is indigent at the time of the criminal proceedings but subsequently acquires the means to bear the costs of his legal defense.

The petitioner Fuller pleaded guilty, on July 20, 1972, to an information charging him with sodomy in the third degree. At the hearing on the plea and in other court proceedings he was represented by a local member of the bar appointed by the court upon the petitioner’s representation that he was indigent and unable to hire a lawyer. Fuller’s counsel in turn hired an investigator to aid in gathering facts for his defense, and the investigator’s fees were also assumed by the State. Fuller was subsequently sentenced to five years of probation, conditioned upon his satisfactorily complying with the requirements of a work-release program at the county jail that would permit him to attend college, and also upon his reimbursement to the county of the fees and expenses of the attorney and investigator whose services had been provided him because of his indigent status. On appeal to the Oregon Court of Appeals, his principal contention was that the State could not constitutionally condition his probation on the repayment of these expenses. With one judge dissenting, the imposition of his sentence was affirmed, 12 Ore. App. 152, 504 P. 2d 1393, and the Supreme Court of Oregon subsequently denied Fuller's petition for review. Because of the importance of the question presented and the conflict of opinion on the constitutional issue involved, we granted certiorari, 414 U. S. 1111.

I

We begin with consideration of the plan and operation of the challenged statute. By force of interpretation of the State’s Constitution and comprehensive legislation, Oregon mandates that every defendant in a criminal case must be assigned a lawyer at state expense if “[i]t appears to the court that the defendant is without means and is unable to obtain counsel.” Ore. Rev. Stat. § 135.-050 (l)(d) (1973). As part of a recoupment statute passed in 1971, Oregon requires that in some cases all or part of the “expenses specially incurred by the state in prosecuting the defendant,” § 161.665 (2), be repaid to the State, and that when a convicted person is placed on probation repayment of such expenses may be made a condition of probation. These expenses include the costs of the convicted person’s legal defense.

As the Oregon appellate court noted in its opinion in this case, however, the requirement of repayment “is never mandatory.” 12 Ore. App., at 156, 504 P. 2d, at 1395. Rather, several conditions must be satisfied before a person may be required to repay the costs of his legal defense. First, a requirement of repayment may be imposed only upon a convicted defendant; those who are acquitted, whose trials end in mistrial or dismissal, and those whose convictions are overturned upon appeal face no possibility of being required to pay. Ore. Rev. Stat. § 161.665 (1). Second, a court may not order a convicted person to pay these expenses unless he “is or will be able to pay them.” § 161.665 (3). The sentencing court must “take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.” Ibid. As the Oregon court put the matter in this case, no requirement to repay may be imposed if it appears at the time of sentencing that “there is no likelihood that a defendant’s indigency will end ....” 12 Ore. App., at 159, 504 P. 2d, at 1397. Third, a convicted person under an obligation to repay “may at any time petition the court which sentenced him for remission of the payment of costs or of any unpaid portion thereof.” Ore. Rev. Stat. § 161.665 (4). The court is empowered to remit if payment “will impose manifest hardship on the defendant or his immediate family ...” Ibid. Finally, no convicted person may be held in contempt for failure to repay if he shows that “his default was not attributable to an intentional refusal to obey the order of the court or to a failure on his part to make a good faith effort to make the payment § 161.685 (2).

Thus, the recoupment statute is quite clearly directed only at those convicted defendants who are indigent at the time of the criminal proceedings against them but who subsequently gain the ability to pay the expenses of legal representation. Defendants with no likelihood of having the means to repay are not put under even a conditional obligation to do so, and those upon whom a conditional obligation is imposed are not subjected to collection procedures until their indigency has ended and no “manifest hardship” will result. The contrast with appointment-of-counsel procedures in States without recoupment requirements is thus relatively small: a lawyer is provided at the expense of the State to all defendants who are unable, even momentarily, to hire one, and the obligation to repay the State accrues only to those who later acquire the means to do so without hardship.

II

The petitioner’s first contention is that Oregon’s recoupment system violates the Equal Protection Clause of the Fourteenth Amendment because of various classifications explicitly or implicitly drawn by the legislative provisions. He calls attention to our decision in James v. Strange, 407 U. S. 128, which held invalid under the Equal Protection Clause a law enacted by Kansas that was somewhat similar to the legislation now before us. But the offending aspect of the Kansas statute was its provision that in an action to compel repayment of counsel fees “[n]one of the exemptions provided for in the code of civil procedure [for collection of other judgment debts] shall apply to any such judgment...," Kan. Stat. Ann. § 22-4513 (a) (Supp. 1971), a provision which “strip [ped] from indigent defendants the array of protective exemptions Kansas has erected for other civil judgment debtors . . . .” 407 U. S., at 135. . The Court found that the elimination of the exemptions normally available to judgment debtors “embodie[d] elements of punitiveness and discrimination which violate the rights of citizens to equal treatment under the law.” Id., at 142.

The Oregon statute under consideration here suffers from no such infirmity. As the Oregon Court of Appeals observed, “[n]o denial of the exemptions from execution afforded to other judgment debtors is included in the Oregon statutes.” 12 Ore. App., at 159, 504 P. 2d, at 1397. Indeed, a separate provision directs that “[a] judgment that the defendant pay money, either as a fine or as costs and disbursements of the action, or both, shall be docketed as a judgment in a civil action and with like effect . . . .” Ore. Rev. Stat. § 137.180. The convicted person from whom recoupment is sought thus retains all the exemptions accorded other judgment debtors, in addition to the opportunity to show at any time that recovery of the costs of his legal defense will impose “manifest hardship,” § 161.665 (4). The legislation before us, therefore, is wholly free of the kind of discrimination that was held in James v. Strange to violate the Equal Protection Clause.

The petitioner contends further, however, that the Oregon statute denies equal protection of the laws in another way — by discriminating between defendants who are convicted, on the one hand, and those who are not convicted or whose convictions are reversed, on the other. Our review of this distinction, of course, is a limited one. As the Court stated in James v. Strange: “We do not inquire whether this statute is wise or desirable .... Misguided laws may nonetheless be constitutional.” 407 U. S., at 133. Our task is merely to determine whether there is “some rationality in the nature of the class singled out.” Rinaldi v. Yeager, 384 U. S. 305, 308-309. See also McGinnis v. Royster, 410 U. S. 263; McGowan v. Maryland, 366 U. S. 420. In Rinaldi the Court found impermissible New Jersey’s decision to single out prisoners confined to state institutions for imposition of an obligation to repay to the State costs incurred in providing free transcripts of trial court proceedings required by this Court’s decision in Griffin v. Illinois, 351 U. S. 12. The legislative decision to tax those confined to prison but not those also convicted but given a suspended sentence, probation, or a fine without imprisonment was found to be invidiously discriminatory and thus violative of the requirements of the Equal Protection Clause. In the case before us, however, the sole distinction is between those who are ultimately convicted and those who are not.

We conclude that this classification is wholly non-invidious. A defendant whose trial ends without conviction or whose conviction is overturned on appeal has been seriously imposed upon by society without any conclusive demonstration that he is criminally culpable. His life has been interrupted and subjected to great stress, and he may have incurred financial hardship through loss of job or potential working hours. His reputation may have been greatly damaged. The imposition of such dislocations and hardships without an ultimate conviction is, of course, unavoidable in a legal system that requires proof of guilt beyond a reasonable doubt and guarantees important procedural protections to every defendant in a criminal trial. But Oregon could surely decide with objective rationality that when a defendant has been forced to submit to a criminal prosecution that does not end in conviction, he will be freed of any potential liability to reimburse the State for the costs of his defense. This legislative decision reflects no more than an effort to achieve elemental fairness and is a far cry from the kind of invidious discrimination that the Equal Protection Clause condemns.

III

The petitioner’s second basic contention is that Oregon’s recoupment statute infringes upon his constitutional right to have counsel provided by the State when he is unable because of indigency to hire a lawyer. Gideon v. Wainwright, 372 U. S. 335; Argersinger v. Hamlin, 407 U. S. 25. The argument is not that the legal representation actually provided in this case was ineffective or insufficient. Nor does the petitioner claim that the fees and expenses he may have to repay constitute unreasonable compensation for the defense provided him. Rather, he asserts that a defendant’s knowledge that he may remain under an obligation to repay the expenses incurred in providing him legal representation might impel him to decline the services of an appointed attorney and thus “chill” his constitutional right to counsel.

This view was articulated by the Supreme Court of California, in a case invalidating California’s recoupment legislation, in the following terms:

“[W]e believe that as knowledge of [the recoupment] practice has grown and continues to grow many indigent defendants will come to realize that the judge’s offer to supply counsel is not the gratuitous offer of assistance that it might appear to be; that, in the event the case results in a grant of probation, one of the conditions might well be the reimbursement of the county for the expense involved. This knowledge is quite likely to deter or discourage many defendants from accepting the offer of counsel despite the gravity of the need for such representation as emphasized by the [Supreme] [C]ourt in Gideon . . . .” In re Allen, 71 Cal. 2d 388, 391, 455 P. 2d 143, 144.

We have concluded that this reasoning is wide of the constitutional mark.

The focal point of this Court’s decisions securing the right to state-appointed counsel for indigents was the “noble ideal” that every criminal defendant be guaranteed not only “procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law,” but also the expert advice necessary to recognize and take advantage of those safeguards. Gideon v. Wainwright, supra, at 344. In the now familiar words of the Court’s seminal opinion in Powell v. Alabama, 287 U. S. 45, 68-69, quoted in Gideon, at 344-345:

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”

Oregon’s system for providing counsel quite clearly does not deprive any defendant of the legal assistance necessary to meet these needs. As the State Court of Appeals observed in this case, an indigent is entitled to free counsel “when he needs it” — that is, during every stage of the criminal proceedings against him. 12 Ore. App., at 158-159, 504 P. 2d, at 1396. The fact that an indigent who accepts state-appointed legal representation knows that he might someday be required to repay the costs of these services in no way affects his eligibility to obtain counsel. The Oregon statute is carefully designed to insure that only those who actually become capable of repaying the State will ever be obliged to do so. Those who remain indigent or for whom repayment would work “manifest hardship” are forever exempt from any obligation to repay.

We live in a society where the distribution of legal assistance, like the distribution of all goods and services, is generally regulated by the dynamics of private enterprise. A defendant in a criminal case who is just above the line separating the indigent from the nonindigent must borrow money, sell off his meager assets, or call upon his family or friends in order to hire a lawyer. We cannot say that the Constitution requires that those only slightly poorer must remain forever immune from any obligation to shoulder the expenses of their legal defense, even when they are able to pay without hardship.

This case is fundamentally different from our decisions relied on by the petitioner which have invalidated state and federal laws that placed a penalty on the exercise of a constitutional right. See Uniformed Sanitation Men v. Sanitation Comm’r, 392 U. S. 280; Gardner v. Broderick, 392 U. S. 273; United States v. Jackson, 390 U. S. 570. Unlike the statutes found invalid in those cases, where the provisions “had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them,” id., at 581, Oregon's recoupment statute merely provides that a convicted person who later becomes able to pay for his counsel may be required to do so. Oregon's legislation is tailored to impose an obligation only upon those with a foreseeable ability to meet it, and to enforce that obligation only against those who actually become able to meet it without hardship.

The judgment of the Court of Appeals of Oregon is affirmed.

It is so ordered.

Mr. Justice Douglas,

concurring in the judgment.

The petitioner in this case, charged with a felony, received court-appointed counsel, which is available in Oregon to a defendant who executes a statement that he is unable to obtain counsel, when it appears to the court that the defendant is without means. Ore. Rev. Stat. §§ 135.050 (1) (c), (d) (1973). Petitioner was convicted, and sentenced to five years' probation. One of the conditions of probation was that petitioner reimburse the county for the cost of his appointed attorney’s fees and for the expenses of a defense investigator. These costs were assessed pursuant to the Oregon recoupment statute, §§ 161.665-161.685, which authorizes the sentencing court to require a convicted defendant to pay certain costs and to condition probation on such payment.

Although a defendant might have been indigent at the time of trial, the Oregon statutory scheme recognizes that at some point after trial a defendant may escape from indigency. As noted, the recoupment statute thus allows the court to require a convicted defendant to pay costs. § 161.665 (1). Payment of the costs may be made a condition of probation. § 161.675 (2). But it forbids the court to impose such a requirement at the time of sentencing unless the defendant at that time “is or will be able to” pay those costs and requires the court to consider the “nature of the burden that payment of costs will impose” on the defendant. § 161.665 (3). Under the statute, a court which has sentenced a defendant to pay costs may remit the payment of the amount due, or modify the method of payment, if it appears that the payment will impose manifest hardship on the defendant or his immediate family. § 161.665 (4).

The Court of Appeals of Oregon construed the statutory scheme in this case to limit sharply the discretion of the trial court to require the repayment of costs. 12 Ore. App. 152, 504 P. 2d 1393. As the court interpreted the statute, a defendant can be required to repay appointed counsel’s fee “only if and when he is no longer indigent.” Id., at 159, 504 P. 2d, at 1397 (emphasis added). While payment of costs may be made a condition of probation, probation can be revoked only if the court specifically finds that “(1) the defendant has the present financial ability to repay the costs involved (either all or by installments) without hardship to himself or his family . . . and (2) the defendant’s failure to repay ... is an intentional, contumacious default . . . .” Ibid. Revocation is improper if both of these elements are not established.

The narrow construction of the Oregon recoupment statute in this case disposes of petitioner’s claim that the statute “chills” the exercise of the right to counsel. Repayment cannot be required until a defendant is able to pay the costs, and probation cannot be revoked for nonpayment unless there is a specific finding that payment would not work hardship on a defendant or his family. Under these circumstances, the “chill” on the exercise of the right to counsel is no greater than that imposed on a nonindigent defendant without great sums of money. Even though such a defendant can afford counsel, he might well be more ready to accept free appointed counsel than to retain counsel himself. Yet a State is not therefore required by the Federal Constitution to provide appointed counsel for nonindigent defendants.

Nor is it a denial of equal protection to assess costs only against those defendants who are convicted. The acquitted defendant has prevailed at trial in defending against the charge brought by the State. It is rational that the State not recover costs from such a defendant while recovering costs from a defendant who has been found guilty beyond a reasonable doubt of the crime that necessitated the trial. Similarly, too, it is rational not to assess defendants against whom charges have been dismissed, since the State has not proved its charges against them.'

My Brother Marshall argues that the Oregon recoupment statute denies indigent defendants equal protection of the laws in that it contemplates revocation of probation and subsequent imprisonment for nonpayment of counsel fees. He notes that Art. 1, § 19, of the Oregon Constitution provides that “[t]here shall be no imprisonment for debt, except in case of fraud or absconding debtors,” and argues that a defendant who failed to pay a bill to his retained counsel could not be imprisoned.

I do not believe that this claim was properly preserved below or is properly before this Court. Petitioner did argue that the possibility of imprisonment for debts owed the State under the recoupment statute denied him equal protection, but there is no indication that the Oregon Court of Appeals was alerted to the problems posed by Art. 1, § 19. Petitioner did not even mention the section in his brief before this Court. Yet there is, as my Brother Marshall notes, an apparent inconsistency between Art. 1, § 19, and the recoupment statute. It may be, therefore, that the Oregon courts would strike down the statute as being inconsistent with the constitutional provision if they faced the issue. But on the record of this case, they have not made that determination of state law. Nor can we assume that the Oregon courts have in fact implicitly rejected the applicability of Art. 1, § 19, in upholding the recoupment statute in this case; there is no evidence that an Oregon court must, or even may, sua sponte, consider arguments not argued or briefed to it.

While this Court may at times adopt theories different from those urged by counsel or urged before the state courts when resolving a particular question, see Dewey v. Des Moines, 173 U. S. 193, 198; cf. Stanley v. Illinois, 405 U. S. 645, 658 n. 10, it will not pass on questions substantively different from those presented to the state courts, even when the federal claim is nominally based on the same federal constitutional clause relied on before the state courts, see Wilson v. Cook, 327 U. S. 474, 483-484. More crucially, the federal Equal Protection Clause could be violated in this case only if a particular construction of state law were to be adopted by the state courts. That construction was not adopted on the record before us, and we cannot simply assume that the state court would so rule and strike down the state statute on the basis of that assumption.

Por these reasons, I do not reach the merits of the equal protection question presented by the dissent. And since that question is not properly before us, I believe that the Court errs in rendering an advisory opinion on the merits, an error compounded by the absence of any record below amplifying those merits. The Court not only renders an advisory opinion; it renders it in a vacuum. The proper construction of state law, and the proper resolution of the dependent equal protection claim, would properly be raised by another litigant or by petitioner by way of collateral attack.

In view of the manner in which the application of the recoupment statute has been stringently narrowed by the Court of Appeals of Oregon and because the claim urged by the dissent is not properly before the Court, I concur in the judgment of the Court.

Mr. Justice Marshall,

with whom Mr. Justice Brennan joins,

dissenting.

In my view, the Oregon recoupment statute at issue in this case discriminates against indigent defendants in violation of the Equal Protection Clause and the principles established by this Court in James v. Strange, 407 U. S. 128 (1972). In that case we held unconstitutional under the Equal Protection Clause a Kansas recoupment statute because it failed to provide equal treatment between indigent defendants and other civil judgment debtors. We relied on the fact that indigent defendants were not entitled to the protective exemptions Kansas had erected for other civil judgment debtors.

The Oregon recoupment statute at issue here similarly provides unequal treatment between indigent defendants and other civil judgment debtors. The majority obfuscates the issue in this case by focusing solely on the question whether the Oregon statute affords an indigent defendant the same protective exemptions provided other civil debtors. True, as construed by the Oregon Court of Appeals, the statute does not discriminate in this regard. But the treatment it affords indigent defendants remains unequal in another, even more fundamental, respect. The important fact which the majority ignores is that under Oregon law, the repayment of the indigent defendant’s debt to the State can be made a condition of his probation, as it was in this case. Petitioner’s failure to pay his debt can result in his being sent to prison. In this respect the indigent defendant in Oregon, like the indigent defendant in James v. Strange, is treated quite differently from other civil judgment debtors.

Petitioner’s “predicament under this statute comes into sharper focus when compared with that of one who has hired counsel in his defense.” 407 U. S., at 136. Article 1, § 19, of the Oregon Constitution provides that “[t]here shall be no imprisonment for debt, except in case of fraud or absconding debtors.” Hence, the nonindigent defendant in a criminal case in Oregon who does not pay his privately retained counsel, even after he obtains the means to do so, cannot be imprisoned for such failure. The lawyer in that instance must enforce his judgment through the normal routes available to a creditor — by attachment, lien, garnishment, or the like. Petitioner, on the other hand, faces five years behind bars if he fails to pay his “debt” arising out of the appointment of counsel.

Article 1, § 19, of the Oregon Constitution is representative of a fundamental state policy consistent with the modern rejection of the practice of imprisonment for debt as unnecessarily cruel and essentially counterproductive.

Since Oregon chooses not to provide imprisonment for debt for well-heeled defendants who do not pay their retained counsel, I do not believe it can, consistent with the Equal Protection Clause, imprison an indigent defendant for his failure to pay the costs of his appointed counsel. For as we held in James v. Strange, a State may not “impose unduly harsh or discriminatory terms merely because the obligation is to the public treasury rather than to a private creditor.” 407 U. S., at 138.

I would therefore hold the Oregon recoupment statute unconstitutional under the Equal Protection Clause insofar as it permits payment of the indigent defendant’s debt to be made a condition of his probation. I respectfully dissent.

       Other charges contained in the information against Fuller were dismissed when his guilty plea was accepted.

       In addition, Fuller argued that the section of the Oregon recoupment statute authorizing an obligation to repay “expenses specially incurred by the state in prosecuting the defendant," Ore. Rev. Stat. § 161.665 (2), see n. 5, infra, was not intended by the state legislature to include counsel fees. This issue of state law was resolved against the petitioner in the state court, and properly is not raised here. Murdock v. City of Memphis, 20 Wall. 590.

       Courts of some other States, in reviewing legislation similar to that in question here, have expressed views on the constitutionality of the recoupment of defense costs inconsistent with the decision of the Oregon Court of Appeals in this case. In re Allen, 71 Cal. 2d 388, 455 P. 2d 143; Opinion of the Justices, 109 N. H. 508, 256 A. 2d 500; State ex rel. Brundage v. Eide, 83 Wash. 2d 676, 521 P. 2d 706. Cf. Strange v. James, 323 F. Supp. 1230 (Kan.), aff’d on other grounds, 407 U. S. 128. See generally American Bar Association Project on Standards for Criminal Justice, Providing Defense Services § 6.4, pp. 58-59 (Approved Draft 1968); Comment, Reimbursement of Defense Costs as a Condition of Probation for Indigents, 67 Mich. L. Rev. 1404 (1969); Comment, Charging Costs of Prosecution to the Defendant, 59 Geo. L. J. 991 (1971).

       Ore. Rev. Stat. § 135.050 (3) (a) (1973) directs that counsel be appointed for an indigent defendant when he is “[c]harged with a crime.”

       Ore. Rev. Stat. § 161.665 provides:
      “(1) The court may require a convicted defendant to pay costs.
      “(2) Costs shall be limited to expenses specially incurred by the state in prosecuting the defendant. They cannot include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law.
      “(3) The court shall not sentence a defendant to pay costs unless the defendant is or will be able to pay them. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.
      “ (4) A defendant who has been sentenced to pay costs and who is not in contumacious default in the payment thereof may at any time petition the court which sentenced him for remission of the payment of costs or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or his immediate family, the court may remit all or part of the amount due in costs, or modify the method of payment under ORS 161.675.”
      Ore. Rev. Stat. § 161.675 provides:
      “(1) When a defendant is sentenced to pay a fine or costs, the court may grant permission for payment to be made within a specified period of time or in specified instalments. If no such permission is included in the sentence the fine shall be payable forthwith.
      “(2) When a defendant sentenced to pay a fine or costs is also placed on probation or imposition or execution of sentence is suspended, the court may make payment of the fine or costs a condition of probation or suspension of sentence.”
      Ore. Rev. Stat. § 161.685 provides:
      “(1) When a defendant sentenced to pay a fine defaults in the payment thereof or of any instalment, the court on motion of the district attorney or upon its own motion may require him to show cause why his default should not be treated as contempt of court, and may issue a show cause citation or a warrant of arrest for his appearance.
      “ (2) Unless the defendant shows that his default was not attributable to an intentional refusal to obey the order of the court or to a failure on his part to make a good faith effort to make the payment, the court may find that his default constitutes contempt and may order him committed until the fine, or a specified part thereof, is paid.
      “(3) When a fine is imposed on a corporation or unincorporated association, it is the duty of the person authorized to make disbursement from the assets of the corporation or association to pay the fine from those assets, and his failure to do so may be held to be contempt unless he makes the showing required in subsection (2) of this section.
      “(4) The term of imprisonment for contempt for nonpayment of fines shall be set forth in the commitment order,, and shall not exceed one day for each $25 of the fine, 30 days if the fine was imposed upon conviction of a violation or misdemeanor, or one year in any other case, whichever is the shorter period. A person committed for nonpayment of a fine shall be given credit toward payment for each day of imprisonment at the rate specified in the commitment order.

        “(5) If it appears to the satisfaction of the court that the default in the payment of a fine is not contempt, the court may enter an order allowing the defendant additional time for payment, reducing the amount thereof or of each instalment or revoking the fine or the unpaid portion thereof in whole or in part.
      “ (6) A default in the payment of a fine or costs or any instalment thereof may be collected by any means authorized by law for the enforcement of a judgment. The levy of execution for the collection of a fine shall not discharge a defendant committed to imprisonment for contempt until the amount of the fine has actually been collected.”

       See n. 2, supra.

       The recoupment provisions of other States are set out in the Court’s opinion in James v. Strange, 407 U. S. 128, 132-133, and n. 8. The federal reimbursement provision is found in 18 U. S. C. § 3006A (f).

       The Kansas statute allowed only one exception from the blanket denial of exemptions usually available to judgment debtors, permitting debtors upon whom judgments for costs of legal defense were executed to maintain their homesteads intact. 407 U. S., at 135.

       The dissenting opinion today argues that Fuller’s conditional obligation to repay constitutes an impermissible discrimination based on wealth in violation of the Equal Protection Clause. More precisely, the argument is made that, unlike a nonindigent defendant, an indigent defendant’s “failure to pay his debt can result in his being sent to prison.” Post, at 60. This contention was not made in the petitioner’s brief or oral argument before this Court, and appears not to have been raised in the Oregon courts. It is, therefore, not properly before us. See n. 11, infra. Furthermore, insofar as the dissent deals with Art. 1, § 19, of the Oregon Constitution which forbids “imprisonment for debt,” the dissent purports to resolve questions of state law that this Court does not have power to decide. Murdock v. City of Memphis, 20 Wall. 590.
      More fundamentally, the imposition of a repayment requirement upon those for whom counsel was appointed but not upon those who hired their own counsel simply does not constitute invidious discrimination against the poor. Indeed, the entire thrust of Oregon’s appointment-of-counsel plan is to insure an indigent effective representation of counsel at all significant steps of the criminal process. Those who are indigent may be conditionally required to repay because only they, in contrast to nonindigents, were provided counsel by the State in the first place. Moreover, the fact that a conditional requirement to repay may be made a condition of probation does not mean that the State "imposefs] unduly harsh or discriminatory terms merely because the obligation is to the public treasury rather than to a private creditor.” James v. Strange, 407 U. S., at 138. Under Oregon’s recoupment statute revocation of probation is not a collection device used by the State to enforce debts to it, but is a sanction imposed for “an intentional refusal to obey the order of the court,” Ore. Rev. Stat. § 161.685 (2). Since an order to repay can be entered only when a convicted person is financially able but unwilling to reimburse the State, the constitutional invalidity found in James v. Strange simply does not exist.

       The petitioner also claims in his brief that a requirement to repay legal defense expenses has been imposed only on convicted defendants placed on probation, and “has not been applied to those convicted indigents who were sentenced to terms of imprisonment.” While this distinction might well be justified on the ground that those released on probation are more likely than those incarcerated to have the ability to earn money to repay, we need not reach this issue since the statute itself makes no such distinction, and the petitioner has not demonstrated on this record that the State has engaged in any pattern or practice embracing it.

       The petitioner’s brief also raises, without extended discussion, various due process claims that imposition of the conditional obligation to repay was made without sufficient notice or hearing. Since these contentions appear not to have been raised in the state courts, and were not discussed by the Oregon Court of Appeals, we need not reach them here. “[T]his Court has stated that when . . . the highest state court has failed to pass upon a federal question, it will be assumed that the omission was due to want of proper presentation in the state courts, unless the aggrieved party in this Court can affirmatively show the contrary.” Street v. New York, 394 U. S. 576, 582. We note in passing, however, that the recoupment statutes, including a schedule of fees, were published in the Oregon Revised Statutes at the time of the petitioner’s plea, and further that both Oregon’s judgment execution statute and its parole revocation procedures provide for a hearing before execution can be levied or probation revoked.

       The limitation of the obligation to repay to those who are found able to do so also disposes of the argument, presented by an amicus curiae, that revocation of probation for failure to pay constitutes an impermissible discrimination based on wealth. See Tate v. Short, 401 U. S. 395; Williams v. Illinois, 399 U. S. 235. As the Court stated in Tate v. Short: “We emphasize that our holding today does not suggest any constitutional infirmity in imprisonment of a defendant with the means to pay a fine who refuses or neglects to do so.” 401 U. S., at 400.
      Similarly, the wording of Oregon’s statute makes it clear that a determination that an indigent “will be able” to make subsequent repayment is a condition necessary for the initial imposition of the obligation to make repayment, but is not itself a condition for granting probation, or even a factor to be considered in determining whether probation should be granted.

       In this case, the petitioner’s father apparently paid the costs, and petitioner will repay his father.

       The costs which can be assessed are limited by statute to those “specially incurred” by the State in prosecuting a defendant. Ore. Rev. Stat. § 161.665 (2). The Oregon Court of Appeals found that most costs on the prosecution side of the case could not be charged to a defendant, including police investigations, district attorneys' salaries, and sheriffs’ salaries. 12 Ore. App. 152, 157, 504 P. 2d 1393, 1396. Also, jury fees and the costs of summoning jurors cannot be charged to the defendant. Ibid.; see Ore. Rev. Stat. § 161.665 (2). The costs which can be charged appear limited to those incurred for a defendant’s benefit, such as defense counsel, defense investigators, and so on, which would be borne by a non-indigent defendant in a criminal trial. In addition, the Oregon statutory scheme places limits on the fees which an appointed counsel can receive, except in “extraordinary circumstances,” thus limiting the eventual responsibility of a defendant under the recoupment statute. § 135.055.

       Indeed, while a defendant who is not indigent at the time of trial must pay counsel fees even if acquitted, the Oregon recoupment statutes do not permit the assessment of costs against a defendant who is not convicted.

       Petitioner, relying on James v. Strange, 407 U. S. 128, also claims that the recoupment statute is impermissible because it fails to provide the same exemptions from execution provided other Oregon debtors. The Oregon Court of Appeals in this case held that all exemptions provided other debtors also apply under the recoupment statute. 12 Ore. App., at 159, 504 P. 2d, at 1397. Petitioner’s claim that the statute deprives him of due process was not raised below and hence is not before this Court.

       The opinion of the Oregon Court of Appeals, including the dissent, does not mention Art. 1, § 19. Petitioner's equal protection argument here was based on claims that the recoupment statute did not provide the same statutory exemptions granted other Oregon debtors, discriminated against convicted defendants as opposed to acquitted defendants and defendants who had charges dismissed, and favored defendants who were sentenced to the penitentiary. The Art. 1, § 19, problem was brought to the attention of the Court only by the amicus curiae brief of the National Legal Aid and Defender Association.

       The majority argues that we have recognized no constitutional infirmity in imprisoning a defendant with the means to pay a fine who refuses or neglects to do so. Ante, at 53 n. 12. This case does not involve a fine, however, but rather enforcement of a debt for legal services. The fact remains that Oregon imprisons a defendant with appointed counsel who refuses or neglects to pay his debt for legal services even though able to pay, but does not imprison a defendant with retained counsel in the same circumstances.

       In light of my disposition of the equal protection claim, I have no occasion to consider petitioner’s contention that some other defendant’s knowledge that he may have to reimburse the State for providing him legal representation might impel him to decline the services of an appointed attorney and thus chill his Sixth Amendment right to counsel. In any event, in my view such a claim could more appropriately be considered by this Court in the context of an actual case involving a defendant who, unlike petitioner, had refused appointed counsel and contended that his refusal was not a knowing and voluntary waiver of his Sixth Amendment rights because it was based upon his fear of bearing the burden of a debt for appointed counsel or upon his failure to understand the limitations the State imposes on such a debt.


author: Mr. Justice Stewart

text:
    KOSYDAR, TAX COMMISSIONER OF OHIO v. NATIONAL CASH REGISTER CO.
    No. 73-629.
    Argued March 19, 1974
    Decided May 20, 1974
    Stewart, J., delivered the opinion for a unanimous Court.

      Dwight C. Pettay, Jr., Assistant Attorney General of Ohio, argued the cause for petitioner. With him on the briefs were William J. Brown, Attorney General, and Maryann B. Gall, Assistant Attorney General.

      Roger F. Day argued the cause for respondent. With him on the brief was Carlton S. Dargusch, Jr.

   Mr. Justice Stewart

delivered the opinion of the Court.

The Import-Export Clause of the Constitution, Art. I, §10, cl. 2, provides:

“No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imports, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul > of the Congress.”

The issue for decision in this case is whether the assessment of an ad valorem personal property tax by the petitioner Tax Commissioner of Ohio upon certain property of the respondent is in conflict with this Clause.

I

The respondent National Cash Register Co. (NCR) has for many years engaged in the manufacture of cash registers, accounting machines, and electronic data processing systems, which it markets worldwide. Its home offices, main production plant, and warehouse are located in Dayton, Ohio. For marketing purposes, NCR is organized into two divisions, domestic and international, each wholly separated from the other. It is with the operations of the latter division that this case is concerned.

NCR maintains no inventory of machines which are available to meet incoming orders from foreign customers. Rather, when a salesman from the international division receives an order from a customer, an individual order form is completed. The machine is then built to specification, taking into account the commercial peculiarities of the country to which it is to be shipped and the buyer's individual needs.

After manufacture, the machine is inspected, packed, and crated for shipment abroad. The crated machine is then taken to an NCR warehouse in Dayton, to await foreign shipment. The machines relevant to this case were in storage in the Dayton warehouse, awaiting shipment, on December 31, 1967, when the petitioner Tax Commissioner assessed a personal property tax upon them.

NCR appealed the Commissioner’s assessment to the Board of Tax Appeals of the Ohio Department of Taxation. Its basic claim was that the “international inventory” in the Dayton warehouse was made up of exports, and thus was immune from state taxation under the Import-Export Clause. In support of this contention, NCR offered evidence to show that, because of their unique construction and special adaptation for foreign use, the crated machines were not salable domestically. Further evidence was offered to show that no piece of equipment built for the international division has ever gone anywhere but into that division; that there is no recorded instance of a machine that was sold to a foreign purchaser being returned; and that no exported item has ever found its way back into the United States market.

The Board of Tax Appeals nonetheless upheld the Commissioner’s assessment. It ruled that even if the crated machines were irrevocably committed to export, the immunity from state taxation conferred by Art. I, § 10, cl. 2, did not attach' until the property actually started on its journey to a foreign destination. Since the machines here had not yet entered the export stream, the Board of Tax Appeals concluded that they were still subject to the personal property tax.

The Supreme Court of Ohio reversed this decision by a divided vote. 35 Ohio St. 2d 166, 298 N. E. 2d 559. Relying on the evidence about the domestic nonsal-ability of the machines, the state court concluded that there was a “certainty of export” in this case. Given that “certainty,” the court thought it irrelevant for Import-Export Clause purposes that the taxed machines had not, on the date of the assessment, been moved from the storage facility in Dayton. We granted certiorari, 414 U. S. 1111, because the case seemed to present important questions touching the accommodation of state and federal interests under the Constitution.

II

By its own terms, the prohibition on taxation contained in the Import-Export Clause is absolute; no duties or imposts are allowed “except what may be absolutely necessary for executing [a State’s] inspection Laws.” Consequently, the essential question in cases involving the Clause is a narrow one: is the property upon which a tax has been sought to be imposed an “export,” and thus entitled to protection under the provision's literal terms?

The seminal case on the subject is Coe v. Errol, 116 U. S. 517. Coe involved a shipment of spruce logs that had been hewn at various locations in Maine and New Hampshire, and were to be floated down the Androscog-gin River for manufacture and sale in Lewiston, Maine. The logs were detained by low water in the town of Errol, New Hampshire, where the local selectmen assessed a number of taxes upon them. The owners of the logs contested the assessments, claiming that the property was immune from taxation under both the Commerce and Import-Export Clauses, since the river served as a “public highway” for the interstate shipment of timber. The Supreme Court of New Hampshire sustained the tax, and this Court affirmed.

Writing for the Court, Mr. Justice Bradley viewed “the precise question for solution” as follows:

“Do the owner’s state of mind in relation to the goods, that is, his intent to export them, and his partial preparation to do so, exempt them from taxation?” Id., at 525.

That question was answered in the negative. Recognizing that its task was to set a “point of time when State jurisdiction over the commodities of commerce begins and ends,” id., at 526, the Court concluded that

“such goods do not cease to be part of the general mass of property in the State, subject, as such, to its jurisdiction, and to taxation in the usual way, until they have been shipped, or entered with a common carrier for transportation to another State, or have been started upon such transportation in a continuous route or journey." Id., at 527 (emphasis added).

Since the logs in Coe had not begun a “final movement for transportation from the State of their origin to that of their destination,” id., at 525, the Court held that the Constitution provided no immunity from local taxation.

The basic principle of Coe v. Errol is a simple one— the exemption from taxation in the Import-Export Clause “attaches to the export and not to the article before its exportation.” Cornell v. Coyne, 192 U. S. 418, 427. This Court has adhered to that principle in the almost 90 years since Coe was decided, and the essential problem in cases involving the constitutional prohibition against taxation of exports has therefore been to decide whether a sufficient commencement of the process of exportation has occurred so as to immunize the article at issue from state taxation. Of necessity, the inquiry has usually been a factual one. For example, in A. G. Spalding & Bros. v. Edwards, 262 U. S. 66, this Court decided that delivery of baseballs and bats to an export carrier for shipment to Venezuela constituted a significant “step in exportation,” id., at 68, and exempted the goods from a federal revenue tax. Similarly, in Richfield Oil Corp. v. State Board of Equalization, 329 U. S. 69, it was held that the delivery of oil into the storage tanks of a New Zealand-bound steamer “marked the commencement of the movement of the oil abroad,” id., at 83, making the product immune from a California sales tax.

Yet, even if the inquiry in cases like Spalding and Richfield Oil was specifically directed at determining whether particular acts of movement toward a final destination constituted sufficient entrance into the export stream to invoke the protection of the Import-Export Clause, this Court has never lost sight of one basic principle — at least some such entrance is a prerequisite to the Clause's operation. That fact is well illustrated by the opinion of the Court in Empresa Siderurgica v. County of Merced, 337 U. S. 154. That case involved a California cement plant, which had been sold to a Colombian buyer. Title to the property had passed to the buyer, and'a common carrier had begun to dismantle the plant and crate it for shipment to Colombia.

At a stage when 12% of the plant had been shipped out of the country, the county of Merced levied a personal property tax on the remaining 88%. This balance included about 10% of the original plant that had been dismantled and crated or prepared for shipment, but which had not yet begun its voyage to Colombia. This Court held that the tax on the 88%, including this crated portion, did not violate the Import-Export Clause. Adhering to the test of Coe v. Errol, the Court stated:

“Under that test it is not enough that there is an intent to export, or a plan which contemplates exportation, or an integrated series of events which will end with it. . . . It is the entrance of the articles into the export stream that marks the start of the process of exportation. Then there is certainty that the goods are headed for their foreign destination and will not be diverted to domestic use. Nothing less will suffice.” Id., at 156-157.

Since the 88% of the cement plant had not yet begun its out-of-state journey, the Court concluded that the California tax was not one upon “exports” within the meaning of the Clause.

We can find little in the case before us to take it outside the ambit of the Empresa Siderúrgica holding. At the time that the respondent’s machines were assessed for taxation, they were sitting in the Dayton warehouse awaiting shipment. Title and possession were in NCR, payment had not yet been made by the putative purchasers, no export license had issued, and the machines were in the complete control of the respondent. More important, there had simply been no movement of the goods — no shipment, and no commencement of the process of exportation. Given this factual setting, it would require a sharp departure from nearly a century of precedents under the Import-Export Clause for us to conclude that the machines were “exports” and exempt from state taxation.

In an effort to avoid the clear holdings of our prior cases, NCR emphasizes the peculiar nature of the taxed machines, and contends that their nonadaptability to domestic use brought about a “certainty of export.” Because of this practical absence of “diversion potential,” NCR argues that the ultimate placement of the machines into the stream of exportation is a mere formality, and that this Court should treat the crated property as already having become an export in the constitutional sense even as it sits in the Dayton warehouse.

As a practical matter, it might well be doubted that the “diversion potential” of the crated portions of the cement plant in Empresa Siderurgica was any greater than that present here. But, even assuming, arguendo, the validity of NCR's arguments about the practical certainty of export here, we think it plain that the warehoused machines are not entitled to the protection of the Import-Export Clause. Mr. Justice Frankfurter put the matter succinctly in Joy Oil Co. v. State Tax Comm’n, 337 U. S. 286, 288:

“The Export-Import Clause was meant to confer immunity from local taxation upon property being exported, not to relieve property eventually to be exported from its share of the cost of local services.”

We may accept as fact the respondent’s assurances that the prospect of eventual exportation here was virtually certain. “But that prospect, no matter how bright, does not start the process of exportation. On the tax date the movement to foreign shores had neither started nor been committed.” Empresa Siderurgica, 337 U. S., at 157. Given the absence of an entrance of the respondent’s machines into the export stream, the immunities of the Import-Export Clause are unavailable.

It may be said that insistence upon an actual movement into the stream of export in the case at hand represents an overly wooden or mechanistic application of the Coe doctrine. This is an instance, however, where we believe that simplicity has its virtues. The Court recognized long ago that even if it is not an easy matter to set down a rule determining the moment in time when articles obtain the protection of the Import-Export Clause, “it is highly important, both to the shipper and to the State, that it should be clearly defined so as to avoid all ambiguity or question.” Coe, 116 U. S., at 526. As Mr. Justice Holmes put the matter in A. G. Spalding, 262 U. S., at 69:

“[W]e have to fix a point at which, in view of the purpose of the Constitution, the export must be said to begin. As elsewhere in the law there will be other points very near to it on the other side, so that if the necessity of fixing one definitely is not remembered any determination may seem arbitrary.”

Our prior cases have determined that the protections of the Import-Export Clause are not available until the article at issue begins its physical entry into the stream of exportation. We find no reason to depart from that settled doctrine.

For these reasons, the judgment of the Supreme Court of Ohio is

Reversed.

       There is often a time lag between production and final shipment, and an inventory of international machines is therefore built up at the Dayton warehouse. The delays in eventual shipment occur for a number of reasons. In some cases, recipient countries will not allow partial shipments, so when a large order has been placed and the production cycle is slow, the machines' must be consolidated and stored prior to shipment. In the electronic data processing area, the component parts of a shipment are often produced at several different locations, necessitating a consolidation prior to shipment. In other instances, delay in final shipment is caused by difficulties in procuring importation licenses or the uncertainties of the international monetary situation.

       Under Ohio Rev. Code Ann. § 5709.01, all personal property located and used in business within the State is subject to an ad valorem tax. Ohio Rev. Code Ann. §5711.16 provides that articles which have at any time been manufactured are subject to the tax.

       A number of factors make domestic sales of the machines impractical. For one thing, the keyboards, printing mechanisms, characters, dispensing mechanisms, and decimal point placement of the machines are geared to the particular monetary system employed in the customer’s country. Moreover, the machines are quite often designed for use on electrical systems not prevalent in this country. And, even when mechanical problems do not exist, the fact remains that merchandising techniques in this country are considerably more sophisticated than those in many other nations, so as to make machines designed for foreign use somewhat obsolete in the domestic market.

       There is no claim that this exception is applicable in any way in the present case.

       The Spalding case arose under Art. I, § 9, cl. 5, of the Constitution, which provides that “No Tax or Duty shall be laid on Articles exported from any State.” A long line of cases has recognized, however, that the meaning of “export” is the same under that provision as under the Import-Export Clause. See, e. g., Brown v. Maryland, 12 Wheat. 419, 445; Turpin v. Burgess, 117 U. S. 504, 506; Cornell v. Coyne, 192 U. S. 418, 427-428; Richfield Oil Corp. v. State Board of Equalization, 329 U. S. 69, 83.

       In a decision rendered two weeks after Empresa Siderúrgica, the Court made it clear that not every preliminary movement of goods toward eventual exportation was sufficient to invoke the protection of the Import-Export Clause. In Joy Oil Co. v. State Tax Comm’n, 337 U. S. 286, the question was whether an ad valorem property tax on gasoline stored in tanks at Dearborn, Michigan, for eventual export to Canada, was permissible under the Clause. The gasoline had previously been purchased by a Canadian corporation, had been certified as- purchased for export, shipped by rail to Detroit under bills of lading marked “For Export to Canada,” and eventually placed in the Dearborn tanks. The bulk of the gasoline remained in the tanks for over 15 months, because of an apparent shortage of shipping space by water. This Court held that, despite the initial transportation of the gasoline to Dearborn, the hiatus in the journey subjected the property to state taxation.

       Indeed, it might well be contended that in this case: "There is no certainty of export. The record establishes that some machines have remained stored in the warehouse awaiting shipment for three years. The orders could be cancelled, the export license might never issue, the financing may fail to materialize, the machines could be destroyed, dismantled or sold for scrap. These machines were no different from any other mass of goods in a warehouse awaiting shipment.” 35 Ohio St. 2d 166, 175, 298 N. E. 2d 559, 564-565 (O’Neill, C. J., dissenting).