## Facts

- Perry, a North Carolina inmate, was charged with the misdemeanor of assault with a deadly weapon after a prison fight.
- He was tried without a jury in district court, convicted, and sentenced to six months consecutive to his existing sentence.
- North Carolina law allowed a defendant convicted of a misdemeanor in district court to obtain a trial de novo in superior court.
- Perry filed notice of appeal to obtain a de novo trial.
- After the appeal was filed, the prosecutor obtained a felony indictment based on the same conduct, charging assault with a deadly weapon with intent to kill and inflict serious bodily injury, exposing Perry to substantially greater punishment.
- Perry pleaded guilty to the felony and received a five-to-seven-year sentence.
- Perry sought federal habeas relief, alleging the felony prosecution violated the Fourteenth Amendment because it penalized his exercise of the de novo appeal right.

## Issues

1. Whether due process is violated when the State, after a defendant seeks a trial de novo, brings a more serious charge based on the same conduct, creating a realistic likelihood of prosecutorial vindictiveness.
2. Whether a guilty plea to the increased charge bars the defendant from later raising this due process claim in federal habeas.

## Decision

- The Supreme Court affirmed the grant of habeas relief and held the felony indictment and conviction could not stand.
- Due process prohibited the State from responding to Perry’s request for a de novo trial by substituting a more serious felony charge for the same conduct, because this created a realistic likelihood of vindictiveness and chilled exercise of the appeal right.
- The Court held Perry’s guilty plea did not bar the claim because the constitutional defect concerned the State’s authority to hale him into court on the felony charge in these circumstances.

## Legal Principles

- Due process forbids prosecutorial actions that pose a realistic likelihood of vindictiveness against a defendant for exercising a right to obtain further review, even without proof of actual retaliatory motive.
- In a de novo appeal system, once the State proceeds to conviction on a charge, it may not answer the defendant’s request for a new trial by filing a more serious charge based on the same conduct and thereby increasing sentencing exposure.
- A guilty plea does not waive a claim that the State was constitutionally barred from bringing the prosecution at all, because the claim challenges the State’s power to prosecute rather than case-specific pre-plea errors.

## Conclusion

The Court held that escalating a misdemeanor charge to a felony after a defendant invokes a statutory right to a trial de novo violates due process by creating a realistic likelihood of prosecutorial vindictiveness, and that this structural defect is not waived by a guilty plea to the impermissibly increased charge.


Blackledge v. Perry, 417 U.S. 21 (1974)