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 *33Chaffin 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 *34a 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.
*35Indeed, 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 *36grand 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 prose*37cutor. 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 *38process. 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 *39imposed 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.