                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-20-2001

Dunn v. Colleran
Precedential or Non-Precedential:

Docket 99-1030




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Recommended Citation
"Dunn v. Colleran" (2001). 2001 Decisions. Paper 82.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/82


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Filed April 20, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1030

JOHN WILLIAM DUNN,

Appellant

v.

RAYMOND J. COLLERAN (Acting Superintendent);
THE ATTORNEY GENERAL OF THE STATE OF
PENNSYLVANIA; THE DISTRICT ATTORNEY OF
ALLENTOWN, PA.

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Civil No. 98-cv-00801
District Judge: The Honorable Stewart Dalzell

Argued: December 7, 2000

Before: BARRY and COWEN, Circuit Judges, and
WARD,* District Judge

(Opinion Filed: April 20, 2001)



_________________________________________________________________
* The Honorable Robert J. Ward, United States District Judge for the
Southern District of New York, sitting by designation.
       Arthur John Kyriazis, Esquire
        (Argued)
       Kyriazis and Associates
       1806 Garrett Road
       Lansdowne, Pennsylvania 19050

        Attorney for Appellant

       Kelly B. Waldron, Esquire (Ar gued)
       Douglas G. Reichley, Esquire
       Deputy District Attorney
       Office of the District Attorney
       Lehigh County Courthouse
       455 West Hamilton Street
       Allentown, Pennsylvania 18101

        Attorney for Appellee

OPINION OF THE COURT

BARRY, Circuit Judge:

Our criminal justice system is bottomed on several
unwavering principles. One of those principles was
recognized long ago by Justice Sutherland when he stated
that a prosecuting attorney

       is the representative not of an or dinary party to a
       controversy, but of a sovereignty whose obligation to
       govern impartially is as compelling as its obligation to
       govern at all; and whose interest, ther efore, in a
       criminal prosecution is not that it shall win a case, but
       that justice shall be done. As such, he is in a peculiar
       and very definite sense the servant of the law, the
       twofold aim of which is that guilt shall not escape or
       innocence suffer. He may prosecute with earnestness
       and vigor--indeed, he should do so. But, while he may
       strike hard blows, he is not at liberty to strike foul
       ones. It is as much his duty to refrain fr om improper
       methods calculated to produce a wrongful conviction
       as it is to use every legitimate means to bring about a
       just one.

                                 2
Berger v. United States, 295 U.S. 78, 88-89 (1935),
overruled on other grounds, Stir one v. United States, 361
U.S. 212 (1960). Justice Sutherland's words continue to
guide us.

I.

John William Dunn inflicted grievous injuries on his
infant son. In exchange for his plea of nolo contendere, the
prosecutor promised, among other things, to recommend a
minimum sentence within the standard guideline range of
36-60 months. At sentencing, however, the pr osecutor did
not mention the standard guideline range, much less a
minimum sentence within that range, arguing instead that
while she could not ask the Court to impose the"maximum
possible penalty," "a lengthy term of incarceration is
necessary" -- a "penalty that's considerable." Dunn was
sentenced to seven and one-half to twenty years
imprisonment. He argues, and we agree, that the
prosecutor did not adhere to the ter ms of the bargain she
struck with him. We further find that the state court
unreasonably applied clearly established Supr eme Court
caselaw, and that the District Court erred in concluding
otherwise. Accordingly, we will reverse.

Dunn was charged with aggravated assault, simple
assault, reckless endangerment and endangering the
welfare of a child stemming from his February 10, 1992
assault on his two month-old son, John. On that day,
Dunn was left to care for his son while his wife was at
work. When Mrs. Dunn returned home in the evening, she
found her son moaning, rigid and non-responsive. The
infant's head was limply hanging down and to the right,
and his eyes were half-closed. When pressed as to what
happened, Dunn became angry and when he lear ned his
wife had called the pediatrician, he became enraged and
shattered a living room window. He initially refused to drive
Mrs. Dunn and his son to the pediatrician's office,
acquiescing only when she threatened to call a lawyer.

After examining the infant, the pediatrician immediately
admitted him to the hospital. The next day, Dunn admitted
to Detective Dean Schwartz that his son had been crying

                                3
and that Dunn had "lost it," became frustrated, and
"started to strike the child harder and har der and harder."
A471. He said that after he struck his son, he wrapped him
in a blanket, put him in his crib, let him cry for hours, and
never sought medical treatment. In what can only be
described as a massive understatement, he posited that
perhaps he was not the best person to watch a sick infant
because he was a recovering alcoholic.

The infant was diagnosed with shaken baby syndr ome
and remains severely disabled to this day. At the time of
sentencing, Mrs. Dunn testified that her then-fifteen month
old son requires continual nursing car e at home because
he suffers seizures, cannot see, is in tr emendous pain, is
fed through a gastrointestinal tube, vomits all the time, is
at constant risk of aspirating on his own mucous, has his
blood drawn constantly, cries for several hours at a time,
and is unable to grab for a toy, sit up, roll-over or even
reach for his mother. At that time, it was expected that
death was imminent. Despite the grave prognosis, John
Dunn is now 8 years old, with permanent brain damage
and facing numerous surgeries.

Dunn was released on bail shortly after his arr est and
filed a motion to suppress his incriminating statement.
Pursuant to an unwritten plea agreement and,
coincidentally, on the one-year anniversary of the assault,
Dunn withdrew that motion and pleaded nolo contendere to
aggravated assault and endangering the welfar e of a child.
That agreement was described at the plea hearing in the
following colloquy between the prosecutor and the Court:

       [Prosecutor] . . . There is an agreement of sorts
       in this case, Judge.

        The Commonwealth is going to
       be requesting the Court impose
       consecutive sentences on the two
       counts, as they do not merge.
       However, I'd like for the sentencing
       in the endangering to be a
       consecutive term of probation, so
       that after any parol [sic]
       supervision is terminated, we have

                               4
       an extra period of supervision on
       this defendant.

       Court: All right. It's my understanding,
       Mr. Dunn --

       [Prosecutor] Judge, there's one more thing. The
       Commonwealth is recommending
       a minimum in this case on Count
       1 within the standard range,
       standard guidelines range, but
       that is not binding on the Court.

A460-A461. The Court later explained to Dunn:

       Court: Now, what is not binding on the
       Court and is left totally to the
       discretion of the Court as far as
       sentencing, the Commonwealth
       indicates that they will
       recommend consecutive sentences.
       There will be a recommendation of
       a sentence of a minimum which
       would be in the standard range,
       and that the second, the
       endangering the welfare of
       children, would be a sentence of
       probation. However, that is not
       binding on the Court in any way.
       That is something which is
       entirely up to the Court, that your
       counsel has indicated --

       [Defense Attorney]: Judge, if I could just interrupt.
       That isn't what the plea bargain is.
       The probation on the consecutive
       on the endangering is binding.

       Court: Is that binding?

       [Prosecutor] Yes, Judge, I'd like to see some
       extended supervision of this
       defendant after any kind of jail
       and parole supervision.

                                 5
Court: What you're saying is that the
Commonwealth is requesting, but
you said it wasn't binding.

[Prosecutor] Judge, the sentence as to Count 1,
aggravated assault, is there --
there is a non-binding
recommendation. As to Count 4,
I'd like to see [a] binding
recommendation to probation
because I would like to ensure
extended supervision.

*   *   *

Court: All right.
Now, let's go through that again so
there's no misunderstanding here.
As I indicated, a plea of nolo
contendere to Count 1 and count
4. The aggravated assault and the
endangering the welfare of
children, that the other two counts
would be withdrawn. Likewise,
binding on the Court would be
that it would be a consecutive
sentence, the second sentence
being the endangering the welfare
of children, and binding on the
court would be that it be a
sentence of probation on that
charge. Now, if we were not to
accept that binding agreement
which we have not participated in,
then you would have a right to
withdraw your plea of guilty.

 Now, the Commonwealth has
recommended, but it is not
binding on the Court, that on the
charge of aggravated assault that
the sentence be -- that the
minimum sentence be in the
standard range of sentencing.

                        6
       However, as your counsel
       indicated, it's not binding, and the
       sentence could be less than that
       and likewise, it could be even
       more. Do you understand that?

       Dunn: Yes, Your Honor.

A462-A464.

Dunn was sentenced on April 8, 1993. At the beginning
of the sentencing proceeding, the contours of the plea
agreement were again articulated by the sentencing judge
who clearly understood what -- at least at that point in
time -- the Commonwealth's recommendation was expected
to be.

       Court: At the time of the entry of the
       plea, there was a plea bargain
       arrangement that the counts of
       recklessly endangering another
       person and the simple assault
       would be withdrawn. The
       Commonwealth also indicated that
       they would recommend a
       minimum sentence in the
       standard range, although this was
       not binding on the Court. In this
       instance, the range would be 36 to
       60 months. So it was the
       Commonwealth's recommendation
       that the minimum sentence be in
       that range, but that it was not, as
       I indicated, not binding on the
       Court. There was a binding
       agreement that the sentence on
       Count 4 run consecutive.
       However, that was to be a
       sentence of probation which was
       binding on this Court if the Court
       would accept the plea bargain
       arrangement.

        [To the Prosecutor] is that your

                                7
       understanding of the plea
       agreement?

       [Prosecutor] Yes, your Honor .

       Court: [To Defense Attorney] is that your
       understanding of the plea
       agreement?

       [Defense Attorney] Yes, your Honor.

A87-A88.

The Court then heard testimony from a number of
witnesses. For the Commonwealth, Mrs. Dunn testified that
Dunn had a drug problem before they wer e married, had a
drinking problem throughout their marriage, and was often
physically abusive towards her. She also confirmed that
prior to the February 10th incident, she told Dunn never to
"shake a baby vigorously, because it can cause severe brain
damage." Detective Schwartz told the Court that he
disagreed with the Commonwealth's recommended sentence
and recommended that Dunn be imprisoned for at least five
years and as much as the legal maximum -- "the steepest
that the Court can give is what I recommend. It's just an
unbelievable case." A419.

On Dunn's behalf, his sister testified that Dunn needed
to come to terms with what he did to his son as well as deal
with his emotional and substance abuse problems. The
chaplain at the Allentown Rescue Mission, wher e Dunn
lived for some time during the pendency of his case,
testified that although Dunn was cooperative while living at
the Mission, he was emotionally troubled, depr essed and
suicidal. The chaplain attributed Dunn's emotional trouble
to his stint in the United States Army and the death of his
father. With respect to the assault on the infant, the
chaplain indicated that Dunn did not understand how
patting his son on the back to raise a burp could have
caused severe brain damage. Another employee of the
Rescue Mission also testified that Dunn was emotionally
troubled. He said that Dunn still believed that his pats on
his son's back did not cause the infant's sever e brain
damage and regretted not having the r esources to prove
that at trial.

                               8
Finally, Dunn testified that he did not know at the time
that his son was injured. Indeed, he continued, he
remained mystified that patting his son on the back could
have caused such severe brain damage without leaving so
much as a bruise. Dunn conceded his problems with drugs
and alcohol as well as his unresolved feelings about his
father's death and hoped that he might one day live a
normal life.

After hearing this testimony, the Court called upon
counsel:

       Court: Do Counsel wish to say anything
       further?

       [Prosecutor] Yes, Judge. I answer your question
       yes and I don't even know what to
       say, Judge. What I know is, I know
       the injuries of the child. I know the
       loss to the family. What I know is the
       reasons for this plea. I think it's
       pretty clear that I wanted to resolve
       this in a plea. I didn't want these
       parties, particularly, I didn't want
       Grace [the mother of the infant] to go
       through trial, testimony, the
       possibility of any kind of verdict as
       the result of a trial. I wanted to be
       able to have this situation put behind
       everyone.

        On the other hand, Judge, there is
       so much that I feel about this
       situation. I feel that we've heard a
       carload of excuses for his behavior, or
       for his condition, meaning the
       defendant. I don't believe that the
       acts that occurred that Monday were
       intentional. Yet the statute read[s]
       reckless. And by this reckless
       conduct, this child will never have a
       life. This mother will face a possibility
       of losing her child some day,
       prematurely, to say the least. She

                               9
suffers with this child everyday,
Judge, in a way that no one should
ever have to suffer; watching a child
in constant pain and discomfort.

 And I have not heard, nor read
anything, either in this proceeding, or
in this presentence investigation,
that demonstrates to me that
this defendant has even the
most remote understanding or
compassion for that. All we hear
about is him. I've not heard much
about his concern for the child, his
concern for their condition. You
heard Grace talk about the fact that
she is the sole support, now, for
herself and her child. The medical
situation worsens, the insurance
situation worsens. And there's not
much care on the part of the
defendant.

 I've heard, ironically, this excuse. I
don't mean to minimize it, everyone
has problems, that perhaps the death
of his father plays in who he is. And
all I can think of is, isn't it ironic that
here was the opportunity for this
man to have his own son and to
establish a different kind of
father/son relationship. And that's
totally ruined and impossible. And so
I don't know that I can accept the
relationship of a father and a son as
an excuse for destroying another
relationship between a father and a
son.

 I can't ask you to impose the
maximum possible penalty. That
would go outside of what my initial
recommendation was. And I think if I

                        10
       would have a chance to sit down and
       have a drink of water and calm
       myself, maybe I would even think
       that to ask for the absolute maximum
       is unjust. But I believe this was
       reckless conduct. Unfortunately, it
       resulted in irreparable devastation.
       But I think a lengthy term of
       incarceration is necessary to address
       what happened here, to get this
       man's attention, to get his focus in
       line, as to what he has to do, what he
       did do, what he needs to do to move
       on with his life. And maybe to give
       this woman just five minutes of peace
       of mind. . . .

        I think that all of these parties have
       spoken from the heart, Judge, and I
       wouldn't want to be in your shoes for
       all the tea in China. But I think that
       something has to be done. It's
       unfortunate that I didn't hear
       remorse. I heard remorse for one's
       own situation, one's own future. But
       I didn't hear remorse for what
       happened here. And I can't abide by
       that. And I'm very sorry that I didn't
       hear that. And I would ask that you
       consider, Judge, a penalty that's
       considerable and one that will
       hopefully move this defendant's
       behavior in line with what we find
       socially acceptable, because this is
       not.

A143-A146. The Court then sentenced Dunn on the
aggravated assault charge to not less than seven and one-
half years and not more than twenty years to be served in
a correctional institution designated by the Deputy
Commissioner for Treatment. On the endangering count,
Dunn was sentenced to a consecutive term offive years'
probation. The Court explained that the sentence exceeded

                               11
the guidelines because of Dunn's violent past, the especially
heinous nature of the crime, Dunn's failur e to seek medical
assistance after the incident, and the prognosis that the
infant would have a limited life.

Dunn thereafter filed a petition for post-conviction
collateral relief challenging, among other things, his
counsel's failure to object to or seek a r emedy for the
prosecutor's breach of the plea agr eement at sentencing. In
denying the petition, the Court explained that the
Commonwealth was obligated only to recommend a non-
binding sentence in the standard range. The Court stated
that it was well aware of the Commonwealth's
recommendation and that the prosecutor's r equest for a
"lengthy" period of incarceration was consistent with the
plea agreement because a sentence within the standard
range was, indeed, lengthy.

Dunn appealed from the order denying his petition. The
Superior Court affirmed, and found, as r elevant here, as
follows:

       Initially, we note that a sentence in the standar d range
       of the guidelines, as set forth at sentencing by the
       court, would have called for a term of imprisonment of
       three to five years imprisonment. This ter m can be
       viewed as "lengthy" in and of itself. Thus, by
       recommending a "lengthy" term of imprisonment the
       district attorney did not violate the ter ms of the plea
       agreement. Furthermore, three sentences before the
       contested remark, the district attorney stated, "I can't
       ask you to impose the maximum possible penalty. That
       would go outside of what my initial recommendation
       was." Thus, the district attorney clearly qualified the
       contested remark by indicating his [sic]
       recommendation was still intact.

A273-A274 (internal citation omitted). The Court further
found that there was no prejudice because the sentencing
court was well aware of the Commonwealth's
recommendation. The Supreme Court of Pennsylvania
denied review.

Dunn filed a timely petition pursuant to 28 U.S.C.S 2254
in the U.S. District Court for the Eastern District of

                               12
Pennsylvania again challenging the prosecutor's conduct at
sentencing. Adopting the report and recommendation of the
Magistrate Judge, the District Court concluded that
because the plea agreement permitted the Commonwealth
to recommend a minimum sentence of between 36 and 60
months and such a sentence was "lengthy" compared to the
mean minimum sentence imposed for aggravated assault,
the prosecutor's request for a "lengthy" sentence did not
breach the agreement. Finding, however , that this
conclusion was "by no means free from doubt," the District
Court sua sponte granted a certificate of appealability.

II.

It is wholly understandable that the prosecutor was
exasperated if not outraged following Dunn's pr esentation
at sentencing, a presentation which evidenced his utter
failure to accept responsibility for the savagery he inflicted
on his infant son. Indeed, we have felt those same emotions
in similar circumstances. And while we accept the
prosecutor's representation that her statements at
sentencing were not motivated by ill will, the motive of the
prosecutor is of no moment because it is the br each and
not the intent behind the breach which causes the error.
We, therefore, move to the only issue before us: whether the
state court unreasonably applied clearly established federal
law when it determined that the prosecutor did not breach
the plea agreement.1

In 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act (AEDPA), P .L. No. 104-132, 110
Stat. 1214, which "placed a new restriction on the power of
federal courts to grant writs of habeas corpus to state
prisoners." Williams v. Taylor, 529 U.S. 362, 399 (2000)
_________________________________________________________________

1. Dunn raises a number of other challenges to his conviction. Because
he never requested nor received a certificate of appealability as to those
issues, we address only the question of whether habeas relief should
issue if the Commonwealth breached its plea agr eement. 3d Cir.
LAR22.1(b) ("If the district court grants a certificate of appealability
as to
only some issues, the court of appeals will not consider uncertified
issues unless petitioner first seeks, and the court of appeals grants
certification of additional issues.")

                                13
(Opinion of O'Connor, J.). Because Dunn filed his habeas
petition after the effective date of the AEDP A, we are
required to apply that statute's r equirements. Predominant
among them is the requirement that federal courts give
greater deference than before to factual findings and legal
determinations of the state courts, with federal habeas
corpus relief to be granted only if the state court
adjudication

       (1) resulted in a decision that was contrary to, or
       involved an unreasonable application of, clearly
       established Federal law, as determined by the Supreme
       Court of the United States; or

       (2) resulted in a decision that was based on an
       unreasonable determination of the facts in light of the
       evidence presented in the State court pr oceeding.

28 U.S.C. SS 2254(d)(1) and (2).2

In Williams, the Supreme Court held that under the
"contrary to" prong of 2254(d)(1), the writ may issue if the
state court came to a legal conclusion opposite to that
reached by the Supreme Court, or if the state court decided
a case differently than the Supreme Court has on
"materially indistinguishable facts." W illiams, 529 U.S. at
412-413; see also Werts v. Vaughn , 228 F.3d 178, 196 (3d
Cir. 2000). The Court also held that under the latter prong
of 2254(d)(1), the writ may issue if the state court identified
the correct governing legal principle but unreasonably
applied that principle. Williams, 529 U.S. at 412-413. To
make such a finding, the habeas court must deter mine
"whether the state court's application of clearly established
federal law was objectively unreasonable." Id. at 409; see
also Ramdass v. Angelone, 120 S.Ct. 2113, 2120 (2000). As
we recognized in Werts, "the Supreme Court stressed that
an unreasonable application of federal law is different from
an incorrect application of such law and a federal habeas
court may not grant relief unless that court determines that
a state court's incorrect or erroneous application of clearly
_________________________________________________________________

2. Factual findings of the state courts ar e presumed correct and it is
the
petitioner's burden to rebut the pr esumption by clear and convincing
evidence. 28 U.S.C. S 2254(e)(1). Factualfindings are not at issue here.

                               14
established federal law was also unreasonable." Werts, 228
F.3d at 196. Dunn challenges the state court's adjudication
only under the latter prong of 2254(d)(1) --"unreasonable
application" -- and our analysis will be r estricted to
whether the state court unreasonably applied clearly
established federal law.

Before we can determine whether ther e was, in fact, an
objectively unreasonable application of clearly established
federal law, we must identify the appropriate Supreme
Court precedent. Williams, 529 U.S. at 412-413; see also
Werts, 228 F.3d 178 (looking dir ectly to Supreme Court
precedent on question of ineffective assistance of counsel
claim). The standards controlling adher ence to a plea
agreement were set forth long ago by the Supreme Court in
Santobello v. New York, 404 U.S. 257 (1971). In Santobello,
in exchange for the defendant's plea of guilty, the
prosecutor agreed to make no sentencing r ecommendation.
At sentencing, however, a new prosecutor (apparently
ignorant of the first prosecutor's pr omise) recommended the
maximum one-year sentence. Defense counsel objected to
this recommendation and sought an adjour nment. The
sentencing judge denied that request and stated that he
was not at all influenced by the prosecutor's
recommendation. The Court then imposed the maximum
one-year, recommended term. On appeal, the conviction
was affirmed.

The Supreme Court vacated the judgment and r emanded
the case. The Court held that a guilty plea "must, of course,
be voluntary and knowing and if it was induced by
promises, the essence of those promises must in some way
be made known." Id. at 261-262. The Court further held
that

       [t]his phase of the process of criminal justice, and the
       adjudicative element inherent in accepting a plea of
       guilty, must be attended by safeguards to insur e the
       defendant what is reasonably due in the
       circumstances. Those circumstances will vary, but a
       constant factor is that when a plea rests in any
       significant degree on a promise or agr eement of the
       prosecutor, so that it can be said to be part of the

                               15
       inducement or consideration, such promise must be
       fulfilled.

Id. at 262.3 The inadvertence of the breach, the Court held,
did not "lessen its impact" and, even absent prejudice at
sentencing, "the interests of justice and appropriate
recognition of the duties of the prosecution in relation to
promises made in the negotiation of pleas of guilty will be
best served by remanding the case to the state courts for
further consideration." Id. at 262-263.

Thus, in Santobello, the Supreme Court clearly
established that a prosecutor may enter into a plea
agreement but, after doing so, must fulfill the promises
contained therein. If the prosecutor fails to do so, whether
purposefully or inadvertently, that breach must be
remedied regardless of whether the defendant was
prejudiced thereby.4 Under the limited review we are
permitted under the AEDPA, we must decide whether the
prosecutor breached the plea agreement and whether the
state court's adjudication to the contrary was an
unreasonable application of Santobello. As we have already
suggested, we answer each of these questions in the
affirmative.
_________________________________________________________________

3. This Court has, of course, followed Santobello when called upon to
review federal convictions. See, e.g., United States v. Nolan-Cooper, 155
F.3d 221, 236 (3d Cir. 1998)("Because the defendant, by entering into
the plea, surrenders a number of her constitutional rights, `courts are
compelled to scrutinize closely the promise made by the government in
order to determine whether it has been performed.' ")(quoting United
States v. Hayes, 946 F.2d 230, 233 (3d Cir. 1991)); United States v.
Moscahlaidis, 868 F.2d 1357, 1361 (3d Cir . 1989)(recognizing that
Santobello requires a prosecutor to keep his promises).

4. In United States v. Benchimol, 471 U.S. 453 (1985) (per curiam), the
Court held that, unless agreed to by the pr osecutor, an agreement to
recommend a particular sentence under Rule 11 of the Federal Rules of
Criminal Procedure did not requir e the prosecutor to make his
recommendation "enthusiastically" or explain the reasons for his
recommendation. Id. at 455-456. The allegations here, however, focus
not on a less than enthusiastic recommendation or a failure to explain
the reasons for the recommendation, but on the fact that the promised
recommendation was not forthcoming.

                               16
When a criminal defendant claims that the gover nment
breached its plea agreement, the first step is to define what
the government agreed to do. To appreciate the parameters
of the Commonwealth's agreement, one must first
understand the sentencing scheme in Pennsylvania. Unlike
the federal sentencing scheme under which a defendant is
sentenced to a fixed number of months in prison, in
Pennsylvania, a defendant sentenced to confinement must
be sentenced to both a minimum and maximum sentence.
42 Pa.C.S.A. S 9756(a) and (b); Stewart v. Pennsylvania Bd.
of Probation and Parole, 714 A.2d 502, 505-506 (Pa.
Commw. Ct. 1998) (describing the sentencing scheme as
doling out indefinite/indeterminate sentences with a
minimum and maximum term); Commonwealth v. Barziyk,
629 A.2d 211, 215 (Pa. Super. Ct. 1997); Commonwealth v.
Cain, 637 A.2d 656, 659 (Pa. Super. Ct. 1994). To
determine the minimum sentence, a court consults
Pennsylvania's sentencing guidelines, which include a
matrix to determine a mitigated range, standar d range and
aggravated range for the minimum sentence. Coss v.
Lackawanna County District Atty., 94-CV-1481, 2000 WL
1372871, *5, and n.6 (M.D. Pa., Aug. 23, 2000);
Commonwealth v. Adams, 694 A.2d 353, 354 (Pa. Super.
Ct. 1997). The standard range designated in the sentencing
guidelines is the standard range for the minimum sentence.
204 Pa. Code S 303.11 and 303.16 (setting forth ranges of
minimum sentences); Commonwealth v. Pittman, 737 A.2d
272, 274 (Pa. Super. Ct. 1999) (describing the guidelines as
setting forth the "legal minimum period of incar ceration");
Adams, 694 A.2d at 354 (referring to the guidelines for the
minimum sentence); Commonwealth v. Decker, 640 A.2d
1321, 1323 (Pa. Super. Ct. 1994). The maximum is set by
statute and the minimum sentence cannot exceed half of
the maximum sentence imposed. 42 Pa.C.S.A. S 9756(b);
Cain, 637 A.2d at 659. The parties agree that the standard
range for Dunn's minimum sentence was 36-60 months.

Although the plea agreement in this case was not written,
it was distilled many times; indeed, the Commonwealth
does not dispute that it agreed to recommend that Dunn's
minimum sentence be in the standard range of minimum
sentences, i.e., 36-60 months. Over and over again, that
obligation was articulated: "The Commonwealth is

                               17
recommending a minimum in this case on Count 1 within
the standard range, standard guidelines range, but that is
not binding on the Court"; "There will be a recommendation
of a sentence of a minimum which would be in the
standard range;" "The Commonwealth has r ecommended,
but it is not binding on the Court, that on the char ge of
aggravated assault that the sentence be -- that the
minimum sentence be in the standard range of sentencing.
. ."; "The Commonwealth also indicated that they would
recommend a minimum sentence in the standar d range,
although this was not binding on the Court. In this
instance, the range would be 36 to 60 months. So it was
the Commonwealth's recommendation that the minimum
sentence be in that range, . . ." A462-464, A389.
Parenthetically, and contrary to Dunn's contentions, the
Commonwealth did not agree to recommend the minimum
sentence of 36 months or a minimum sentence at the lower
end of the standard range.

Dunn argues that the prosecutor failed to recommend
what she had agreed to recommend but, rather, asked the
court to impose a "lengthy" -- a "considerable" -- sentence.
He further argues that this breach was exacerbated by the
remainder of the prosecutor's comments which made an
end-run around her obligation with refer ence to the
promised recommendation. In response, the
Commonwealth argues there was no br each because
"lengthy" described, albeit not explicitly, the agreed-upon
minimum sentence of 36 to 60 months and the pr osecutor's
request for such a sentence did not convey to the Court
that she sought a longer sentence.

We disagree. Dunn bargained for the recommendation of
a minimum sentence within the standard range of
minimums -- nothing more, nothing less. As a result, he
could reasonably expect that the prosecutor would argue
for a minimum sentence as low as three years or as high as
five years. What he could not expect was that the
prosecutor would seek a minimum sentence beyondfive
years. This is precisely what the prosecutor did, sliding
down a slippery slope on her way to denouncing her legal
obligation.

                                18
Instead of recommending even a five year minimum term,
the prosecutor chose to use the vague, yet loaded, words
"lengthy term of incarceration" and"a penalty that's
considerable" -- a term of imprisonment she described as
necessary to get Dunn's attention. She did not qualify this
request in any respect and did not even mention the words
"minimum" or "standard range." Mor eover, a "lengthy term
of incarceration" -- "a penalty that's considerable" -- could
surely have meant something very differ ent from (and, from
Dunn's point of view, much worse than) the pr omised
recommendation of a minimum sentence of between 36 to
60 months, particularly where Dunn was exposed to a
sentence of ten to twenty years. Lest there be any doubt,
the import of what the prosecutor was seeking was clear
when she said:

       I can't ask you to impose the maximum possible
       penalty. That would go outside of what my initial
       recommendation was. And I think if I would have a
       chance to sit down and have a drink of water and calm
       myself, maybe I would even think that to ask for the
       absolute maximum is unjust. But I believe this was
       reckless conduct. . . .

A145. By referring to her obligation under the plea
agreement as only her "initial recommendation;" expressing
her personal reservations about that agr eement and asking
for a "lengthy" -- a "considerable"-- sentence; and stating
that if given more time to reflect she might think that the
"absolute" maximum would be unjust, thus implying that
at that point in time the maximum was just, the prosecutor
unequivocally communicated to the Court that she
disavowed her earlier recommendation and now believed, as
Detective Schwartz had testified, that something up to the
maximum sentence allowable by law would be an
appropriate sentence. The totality of the pr osecutor's
remarks compels the conclusion that her failur e to
affirmatively recommend a minimum sentence within the
standard range had but one purpose: to influence the Court
to impose a minimum sentence far greater thanfive years.

The fact that, at least as of the outset of the sentencing
hearing, the Court was aware of what the pr osecutor was
obliged to recommend does not excuse the Commonwealth's

                                19
failure to fulfill that obligation. W e can, of course, imagine
sentencings at which articulating a recommended sentence
in haec verba would be redundant or , for some other
reason, unnecessary and, therefore, not required as long as
it can fairly be said that the sentencing court had the
recommendation before it when sentence was imposed.
Here, however, it appears that what transpired at the
sentencing hearing prompted the prosecutor's impassioned
statement, a statement which not only did not articulate or
even hint at the promised recommendation, but was
inconsistent with that promised recommendation.

Although Santobello did not establish a bright-line test by
which to determine when a prosecutor has reneged on a
plea agreement, the Court made clear that, at a minimum,
when a prosecutor makes a promise which induced, at
least in significant part, a guilty plea -- or , as here, a plea
of nolo contendere -- the pr osecutor's promise must be
fulfilled. Because no conclusion can be drawn other than
that this prosecutor did not, in Santobello 's word, convey
even the "essence" of that promise, she breached both the
letter and the spirit of her agreement. W e conclude that the
Superior Court's determination that the pr osecutor did not
breach the plea agreement involved, in the words of the
AEDPA, "an unreasonable application of[ ] clearly
established Federal law, as determined by the Supreme
Court of the United States." 28 U.S.C. S 2254(d)(1).5

III.

Having found that the state court unreasonably applied
Santobello, we must consider what, if any, r emedy is
appropriate. The Commonwealth, rigid in its position that it
did not breach the plea agreement, has not discussed the
issue of remedy. For his part, Dunn argues that the
harmless error rule does not apply and we are "duty
bound" under Santobello to grant him r elief regardless of
_________________________________________________________________

5. We note that the Superior Court found that a sentence in the standard
range of 36-60 months was "lengthy" and that, in any event, the
prosecutor "qualified" her call for a lengthy term by indicating that her
initial recommendation was "still intact." The prosecutor, of course,
indicated no such thing.

                               20
whether the sentencing court was influenced by the
Commonwealth's breach. We agree that Santobello requires
relief, as does this Court's precedent.

The Supreme Court made quite clear that it did not need
to "reach the question of whether the sentencing judge
would or would not have been influenced" by the terms of
the plea agreement had the agreement not been breached.
Santobello, 404 U.S. at 262. Rather, the Court concluded
that

       the interests of justice and appropriate r ecognition of
       the duties of the prosecution in relation to promises
       made in the negotiation of pleas of guilty will be best
       served by remanding the case to the state courts for
       further consideration. The ultimate relief to which
       petitioner is entitled we leave to the discr etion of the
       state court, which is in a better position to decide
       whether the circumstances of this case r equire only
       that there be specific performance of the agreement on
       the plea, in which case petitioner should be
       resentenced by a different judge, or whether, in the
       view of the state court, the circumstances r equire
       granting the relief sought by petitioner , i.e., the
       opportunity to withdraw his plea of guilty.

Santobello, 404 U.S. at 262-263. Indeed, the Supreme
Court's decision to remand the case despite the sentencing
court's explicit statement that it had not been influenced by
the prosecutor's recommendation leaves little room to argue
that the harmless error rule applies.

The rationale for this is evident. By entering into a plea
agreement, a defendant voluntarily and knowingly
surrenders a plethora of constitutional rights in exchange
for a commitment by the prosecutor to do or not do certain
things. When the prosecutor breaches that agreement, he
or she violates the defendant's due process rights by
implicating the consideration and voluntariness upon
which that plea was based. Mabry v. Johnson, 467 U.S.
504, 509 (1984)("It follows that when the pr osecution
breaches its promise with respect to an executed plea
agreement, the defendant pleads guilty on a false premise,
and hence his conviction cannot stand: `[W]hen a plea rests

                               21
in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be
fulfilled.' ") (quoting Santobello, 404 U.S. at 262). Especially
when the prosecutor's promise is not binding on the court,
the defendant does not bargain for a specific sentence but
for a lock on what the prosecutor can do and say at
sentencing. That the sentencing court does not follow the
prosecutor's lead is irrelevant. A defendant's constitutional
rights are violated when a prosecutor r eneges on the
consideration underlying the defendant's plea of guilty.
United States v. Camarillo-Tello, ___ F.3d ___, 2001 WL 6711
(9th Cir., Jan. 3, 2001).

Breach of a plea agreement by a pr osecutor also strikes
at public confidence in the fair administration of justice
and, in turn, the integrity of our criminal justice system in
which a vast number of cases are resolved by plea
agreement. United States v. Van Thournout, 100 F.3d 590,
594 (8th Cir. 1996) (noting that this is a concern for federal
prosecutions) (citing to United States v. Carter, 454 F.2d
426, 428 (4th Cir. 1972)); State of W est Virginia v. Palmer,
524 S.E.2d 661, 665 (S. Ct. W. Va. 1999) (noting same
concern with respect to state prosecutions). Thus, we have
held that "the doctrine that the government must adhere to
its bargain in the plea agreement is so fundamental that
even though the government's breach is inadvertent and
the breach probably did not influence the judge in the
sentence imposed, due process and equity r equire that the
sentence be vacated." United States v. Hayes , 946 F.2d 230,
233 (3d Cir.1991) (internal quotations omitted); see also
Williams, 529 U.S. at 375 (although not all constitutional
errors warrant issuance of the writ, "err ors that undermine
confidence in the fundamental fairness of the state
adjudication certainly justify the issuance of the federal
writ."); United States v. Nolan-Cooper, 155 F.3d 221, 236
(3d Cir. 1998) (breach of plea agr eement requires remedy
regardless of harmless error rule).

When we find, on review, that a federal pr osecutor has
breached a plea agreement, we generally leave the remedy
to the discretion of the district court. United States v.
Badaracco, 954 F.2d 928, 941 (3d Cir . 1992) (noting general

                               22
rule but ordering resentencing because the defendant had
already served a considerable portion of his sentence);
United States v. Moschahlaidis, 868 F.2d 1357, 1361, 1363
(3d Cir. 1989) (regardless of whether the sentencing court
was affected by the breach, the general rule requires
sentence be vacated and the case remanded for
consideration of proper remedy); United States v. Martin,
788 F.2d 184, 187 (3d Cir. 1986) (same); see also United
States v. Mondragon, 228 F.3d 978, 981 (9th Cir. 2000)
(holding the "harmless error rule does not apply when the
government breaches a plea agreement."); United States v.
Canada, 960 F.2d 263 (1st Cir. 1992) (recognizing general
rule under Santobello).

It is equally appropriate when we find that a state
prosecutor has breached a plea agr eement to refer the issue
of remedy to the state court. Thus, this Court will not
decide whether Dunn should be resentenced under the plea
agreement or given the opportunity to withdraw his plea.
Indeed, as the Santobello Court long ago observed, it is best
left to the state court to decide what remedy is appropriate.
Santobello, 404 U.S. at 263. That this case r eaches us
under section 2254 also informs our decision to give the
state court an opportunity to determine whether Dunn
should be resentenced or permitted to go to trial. Coss v.
Lackawanna County District Attorney, 204 F .3d 453 (3d
Cir.) (en banc) (noting general rule of leaving proper remedy
to the state in habeas petition), cert. granted, 121 S. Ct.
297 (2000).6
_________________________________________________________________

6. Before the state courts, Dunn sought the opportunity to withdraw his
plea and proceed to trial. At oral argument before us, however, it was
suggested that because he has served more thanfive years (the most
severe minimum sentence under the agreed-upon standard range), we
should resentence him to time served. Wholly aside from the legal
implications of that suggestion, the circumstances of this case cry out
for state court involvement. For example, contrary to Dunn's suggestion,
we do not know whether the sentencing court would have imposed a
minimum sentence not to exceed five years absent a breach. Nor can we
find that Dunn would have been released upon completing whatever
minimum term might have been imposed because, under Pennsylvania
law, a defendant who completes his or her minimum term is entitled
only to be considered for parole. Accor dingly, we decline Dunn's
invitation to resentence him to time served, although the state court may
certainly deem it appropriate to do so. Mor eover, given that Dunn has
vacillated on the relief he seeks, remand will give him an opportunity to
make an informed, counseled request.

                                23
The dissent concludes, based solely on principles of
comity and federalism, that the harmless err or rule applies
to Santobello violations; indeed, the dissent seemingly
suggests, without pausing to distinguish between
constitutional violations which are trial err ors and those
which are structural defects, that the har mless error rule
applies across the board on habeas r eview. We are not
nearly as sure as the dissent that the har mless error rule
applies where a prosecutor has broken a promise made in
exchange for the agreement to plead guilty and has thereby
undercut the basis on which the defendant waived the host
of constitutional rights implicit in his or her plea, and we
are certainly sure that the harmless error rule does not
apply across the board.

The Supreme Court and this Court have, on dir ect
appeal, regularly treated Santobello errors as akin to
structural defects not susceptible of harmless error
analysis. Santobello, 404 U.S. at 262-263 (r emanding even
though sentencing court stated it was not influenced by the
erroneous recommendation); Nolan-Cooper, 155 F.3d at 236
(citing general rule that remand is necessary once
Santobello error is found); Badaracco , 954 F.2d at 941
(same); Hayes, 946 F.2d at 233 (same). Nothing in recent
Supreme Court caselaw, or in cases decided by this Court,
has called this conclusion into question on dir ect or habeas
review; the Commonwealth has not questioned that
conclusion here; and the parties have not raised, much less
briefed, the issue. Moreover, we do not worry, as the
dissent seems to worry, that our conclusion vis-a-vis a
Santobello violation would somehow impact much less set
a far-reaching precedent for all guilty pleas, or "wall off over
ninety percent of state criminal convictions fr om harmless-
error analysis," Dissent at 36; indeed, we do not take issue
with the dissent's conclusion that the vast majority of
errors alleged in the guilty plea process would be subject to
the harmless error rule. In any event, we need not reach
the issue, if issue it be, of whether a Santobello violation is
a structural or trial error for even if har mless error would
apply to a Santobello violation, we would not find the error
harmless here where, we note, the pr osecutor did much

                               24
more than simply, as the dissent suggests, call for a
"lengthy" sentence.7

One final note. We indicated above both our belief that
the prosecutor's comments were incited by Dunn's refusal
to accept responsibility for his actions and our appreciation
of the difficulties this sentencing presented. Nonetheless,
we reiterate that Santobello does not allow a prosecutor to
unilaterally repudiate his or her promises because honoring
them becomes distasteful.

IV.

For the reasons stated above, we will r everse the
judgment of the District Court denying the petition for a
writ of habeas corpus, and remand with instructions that it
issue a writ of habeas corpus ordering Dunn's r elease if the
state court does not remedy the breach within 90 days of
our judgment.
_________________________________________________________________

7. The dissent speculates that the reason Dunn did not pursue a direct
appeal was because, if he were to have pr evailed on appeal such that his
plea was vacated, he could have been exposed to less favorable plea
terms or even potential homicide charges. From this, the dissent
concludes that we are "rewarding" Dunn's "tactical use of federal habeas
relief." Dissent at 33. But as the various opinions in Santobello
underscore, Dunn could have sought specific performance of the
agreement instead of vacation of his plea with his preference, as Justice
Douglas put it, accorded "considerable, if not controlling, weight."
Santobello, 404 U.S. at 267. We see no"tactical" advantage here from
having waited; indeed, given the result we r each, there may well have
been a disadvantage.

                               25
COWEN, Circuit Judge, dissenting :

John Dunn repeatedly struck his two-month old son
causing massive, permanent brain damage. Despite the
child's crying and the struggling noises he made
throughout the remainder of the day, Dunn did nothing to
seek medical care; and when his wife retur ned home from
work around 5:30 p.m., and insisted on calling a doctor,
Dunn vehemently objected and pitched a bottle thr ough a
window, shattering it. Not until his wife thr eatened to call
a lawyer did he agree to drive her and the child to the
doctor. Once prosecuted, Dunn decided to plead nolo
contendere to one count of aggravated assault and one
count of endangerment of the welfare of a child. In return
for his plea the state prosecutor dropped two other charges,
agreed to five years of probation for the charge of
endangering the welfare of a child, and pr omised to
recommend a minimum sentence in the standar d range for
the charge of aggravated assault.

Granting Dunn habeas relief, the majority holds that the
state courts unreasonably applied Supreme Court
precedent in evaluating the prosecutor's compliance with
the plea agreement at sentencing. The majority also
suggests that harmless-error analysis does not apply to
habeas review of an alleged breach of a plea agreement.

I respectfully disagree with both conclusions, and believe
that the majority's opinion may have far-r eaching
consequences. According to data collected by the U.S.
Sentencing Commission, pleas accounted for 94.6%
of all federal convictions in fiscal year 1999, 93.6%
in 1998, 93.2% in 1997, 91.7% in 1996, and 91.9%
in 1995. See U.S. Sentencing Commission, Datafile,
http://www.ussc.gov. And similar figures undoubtedly
apply to state convictions. One recent study, for example,
found that less than 5% of state felony criminal cases were
disposed of through jury trial. Jeffr ey Abramson, We, The
Jury 252 (2000). What this data demonstrates is that a
habeas decision affecting pleas and sentencing will have
vastly greater impact than any influencing pr ocedure at
trial.

                               26
I

The breach of the plea agreement occurr ed, according to
the majority, when the prosecutor made a r ecommendation
for the charge of aggravated assault. T o evaluate what the
prosecutor promised for that count, it is important to
understand that in Pennsylvania a convicted defendant
receives a minimum and a maximum sentence. See Majority
Op. at 17 (citing 42 Pa.C.S.A. S 9756(a) and (b); Stewart v.
Pennsylvania Bd. of Probation and Par ole, 714 A.2d 502,
505-06 (Pa. Commw. Ct. 1998)). The minimum sentence is
usually established by applying sentencing guidelines,
which allow the sentencing judge to select the defendant's
minimum sentence from one of three ranges--a mitigated,
standard, or aggravated range. A defendant's maximum
sentence, by contrast, is limited only by the statutory
maximum.

In Dunn's case the standard range for the minimum
sentence was 36-to-60 months, while the statutory
maximum sentence was 20 years. On appeal Dunn'sfirst
argument is that what the prosecutor actually agreed to do
was recommend a single sentence at the bottom end of the
standard range, i.e., the lowest or minimum sentence in the
standard range, which is a sentence of 36 months. But as
the majority concludes, this argument r ests on an incorrect
interpretation of the plea agreement. Defendants do not
receive a single determinate sentence under Pennsylvania
law, and it is clear from the recor d that all that the
prosecutor agreed to do was "recommend a minimum
sentence in the standard range." App. at 87. What Dunn's
argument neglects is that the term "minimum" does not
refer to the low end of the standard range but to the first
part of the defendant's sentence--the minimum sentence.
In other words, if the prosecutor had r ecommended a
particular minimum sentence near the top of the standard
range, that would have been entirely consistent with the
plea agreement.

Against this legal background we must evaluate Dunn's
second objection, the argument that the majority accepts.
Dunn maintains that the prosecutor impr operly requested
a "lengthy term of incarceration" or "a penalty that's
considerable." App. at 145-46. Like the pr osecutor, the

                               27
state courts, and the District Court, I believe that these
remarks were consistent with the plea agr eement. The
majority acknowledges that the plea agreement did not
require the prosecutor to advocate for leniency within the
standard range, and there is no clearly established
Supreme Court precedent for finding that the prosecutor
had an implied duty to do so. Cf. United States v.
Benchimol, 471 U.S. 453, 105 S.Ct. 2103 (1985) (per
curiam) (rejecting that a plea agreement included an
implied duty to make a recommendation enthusiastically).
The prosecutor was entitled to urge, even vigorously, that
the judge sentence at the high end of the range, and as
both Dunn and the majority implicitly recognize, nothing
limited the prosecutor from presenting compelling evidence
to convince the judge to do so. The majority opinion also
makes clear that the sentencing judge and the pr osecutor
repeatedly reviewed the prosecutor's obligation to
recommend that the minimum sentence fall in the standard
range, and the sentencing judge understood this point.
Moreover, the plea agreement imposed no limitation at all
about the maximum sentence.

When the state trial judge (the same judge as it happens
who sentenced Dunn) rejected Dunn's petition for post-
conviction collateral relief, the judge wr ote that the
prosecutor's request for a "lengthy" sentence was
"consistent with the plea agreement in that the standard
range of sentencing for Defendant's aggravated assault
charge extended to a minimum of five (5) years of
incarceration." App. at 300. The state inter mediate
appellate court similarly reasoned that the pr osecutor's
remarks were consistent with the plea agr eement because
the standard sentence range of three-to-five years for the
minimum sentence "can be viewed as `lengthy' in and of
itself." App. at 273. Expanding on this r easoning, the
District Court noted in denying Dunn's habeas petition that
in 1993, the year Dunn was sentenced, the mean minimum
sentence in Pennsylvania for aggravated assault was 13.2
months and the mean maximum was 35.6 months. Thus,
any minimum sentence in the standard range of 36-to-60
months, the District Court reasoned, "would, against these
averages, be `lengthy.' " App. at 51 n.1.

                               28
Because Dunn's petition is governed by the 1996 AEDPA
amendments to the federal habeas statute, we do not
review a state court's legal determinations under a de novo
standard. See Williams v. Taylor , 529 U.S. 362, 402-13,
120 S.Ct. 1495, 1518-23 (2000); Werts v. Vaughn, 228 F.3d
178, 196-97 (3d Cir. 2000). Federal courts do not exercise
the same general supervisory powers over state courts that
federal appellate courts do over federal district courts. We
cannot grant habeas relief unless the state-court decision is
"contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States." 28 U.S.C.
S 2254(d)(1).

In Williams the Supreme Court devised separate legal
standards for the "contrary to" and "unreasonable
application of " clauses. The majority implies that it is
confining itself to the "unreasonable application" standard
because Dunn only challenged the state-court decision
under that provision. See Majority Op. at 15. But in fact,
Dunn's brief makes no such distinction between the two
standards and instead states, "Whether the government
violated the plea agreement is a question of law and review
is plenary." Appellant's brief at 22.

The deferential "unreasonable application" standard
controls "if the state court identifies the correct governing
legal rule from [the Supreme] Court's cases but
unreasonably applies it to the facts of the particular state
prisoner's case." Williams, 529 U.S. at 407, 120 S.Ct. at
1520. In some cases there may be some doubt about
whether the "contrary to" or "unreasonable application"
clause applies, see, e.g., Hameen v. State of Delaware, 212
F.3d 226, 242 (3d Cir. 2000), but her e the state courts
understood that a prosecutor is obliged to adhere to
promises in a plea agreement. See Mabry v. Johnson, 467
U.S. 504, 509, 104 S.Ct. 2543, 2547 (1984); Santobello v.
New York, 404 U.S. 257, 92 S.Ct. 495 (1971). Because the
state courts understood the controlling legal rule and the
only question is whether the courts correctly applied that
rule to these facts, there is no doubt that the"unreasonable
application standard" applies. "[A] run-of-the-mill state-
court decision applying the correct legal rule from our cases

                               29
to the facts of a prisoner's case would not fit comfortably
within S 2254(d)(1)'s `contrary to' clause." Williams, 529
U.S. at 406, 120 S.Ct. at 1520.

The Supreme Court has emphasized that "an
unreasonable application of federal law is different from an
incorrect application of federal law." Williams, 529 U.S. at
412, 120 S.Ct. at 1522 (emphasis in original). The majority
must conclude, therefore, that even though the prosecutor
was entitled to advocate against leniency, and even though
the prosecutor and the state judge had r epeatedly reviewed
and affirmed the exact requirements of the plea agreement,
the state courts were not merely incorr ect in finding that
the term "lengthy" could refer to the top of the standard
range, they were objectively unreasonable. Given the
context of this case and that the term "lengthy" is relative,
I cannot agree. Three hours, for example, is a long time for
a movie but not for the flu. Likewise, just as we could
properly say that a person had a "lengthy" hospital stay
when he stayed ten out of a possible one-to-ten days, so too
for speaking of the lengthy end of a range of 36-to-60
months of prison. Even in absolute terms, ther e is nothing
improper about calling a five-year sentence"lengthy."

The prosecutor's request for a lengthy sentence did
telegraph her desire that the court not be lenient, but what
the majority ignores in complaining about this effect is that
under the terms of the plea agreement she was legitimately
entitled to say that she thought the judge should not be
lenient either within the standard range or in determining
a maximum sentence.

II

The majority also maintains that harmless-err or doctrine
does not apply to a prosecutor's breach of a plea agreement
when a state prisoner brings a habeas petition. The central
problem with the majority's analysis is that it fails to
distinguish the doctrine's application on dir ect review from
that on habeas. In 1993 the Supreme Court held that there
is a distinct harmless-error standar d that applies in federal
habeas cases and imposes a "less onerous" burden for
upholding the state conviction. Brecht v. Abrahamson, 507

                               30
U.S. 619, 637, 113 S.Ct. 1710,1722 (1993). And that lower
standard applies regardless of whether the state court
conducted a harmless-error review. Hassine v. Zimmerman,
160 F.3d 941, 950-53 (3d Cir. 1998) (collecting cases).1

The Supreme Court noted in Brecht that there are
numerous instances where the Court distinguishes between
the relief available on direct review and that for habeas. For
example, "Although new rules always have r etroactive
application to criminal cases on direct r eview, we have held
that they seldom have retroactive application to criminal
cases on federal habeas." Brecht, 507 U.S. at 634, 113 S.Ct.
at 1720 (citations omitted). Another example is that the
Fourth Amendment's exclusionary rule cannot be invoked
in habeas. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037
(1976). Similarly, defendants have a right to counsel for
direct appeals, Douglas v. California , 372 U.S. 353, 355, 83
S.Ct. 814, 815 (1963), but not for collateral attacks on the
conviction. Pennsylvania v. Finley, 481 U.S. 551, 555-56,
107 S.Ct. 1990, 1993 (1987). After noting the many ways
that relief differs under habeas--dif ferences that have only
expanded since Brecht with the passage of the AEDPA--the
Supreme Court explained: "The reason most frequently
advanced in our cases for distinguishing between dir ect
and collateral review is the State's inter est in the finality of
convictions that have survived direct r eview within the state
court system. We have also spoke of comity and federalism
. . . . `Federal intrusions into state criminal trials frustrate
both the States' sovereign power to punish of fenders and
their good-faith attempts to honor constitutional rights.' "
Brecht, 507 U.S. at 635, 113 S.Ct. at 1720.
_________________________________________________________________

1. The majority states that the parties "have not raised, much less
briefed the issue" of harmless error . Majority Op. at 24. But the
Commonwealth did maintain at oral argument that any putative error
was harmless, and in any event we have discr etion to consider harmless
error sua sponte. See, e.g., United States v. Faulks, 201 F.3d 208, 213
(3d Cir. 2000); United States v. McLaughlin, 126 F.3d 130, 135 (3d Cir.
1997); United States v. Rose, 104 F.3d 1408, 1414 (1st Cir. 1997);
Horsley v. Alabama, 45 F.3d 1486, 1492 n. 10 (11th Cir. 1995); United
States v. Langston, 970 F.2d 692, 704 n.9 (10th Cir. 1992); Lufkins v.
Leapley, 965 F.2d 1477, 1481 (8th Cir . 1992); United States v. Pryce, 938
F.2d 1343, 1348 (D.C. Cir. 1991); United States v. Giovannetti, 928 F.2d
225, 227 (7th Cir. 1991).

                               31
When a constitutional challenge is focused on a state
court's evaluation of sentencing and the alleged err or is
harmless, these concerns with federalism and comity
should be at their height. Habeas corpus, the Supr eme
Court has repeatedly said, is an "extraor dinary remedy"
reserved for defendants who were "grievously wronged" by
the criminal proceedings. Calderon v. Coleman, 525 U.S.
141, 146, 119 S.Ct. 500, 503 (1998) (per curiam) (quoting
Brecht, 507 U.S. at 633-34, 113 S.Ct. at 1719; Fay v. Noia,
372 U.S. 391, 440-41, 83 S.Ct. 822, 850 (1963)). The
Supreme Court has explained that a federal court
disregards these concerns with federalism and comity when
it sets aside a state-court sentence without deter mining
that the error had a "substantial and injurious effect."
Calderon, 525 U.S. at 146, 119 S.Ct. at 503. "The social
costs of retrial or resentencing ar e significant, and the
attendant difficulties are acute . . . wher e the original
sentencing hearing took place . . . [long ago]. The State is
not to be put to this arduous task based on mer e
speculation that the defendant was prejudiced. . . ." Id.
(citing Brecht, 507 U.S. at 637, 113 S.Ct. at 1721).

Relief in this case is unwarranted. The state courts were
reasonable to find that the prosecutor's use of the term
"lengthy" was consistent with the plea agr eement given that
the prosecutor retained the right to advocate for the top
end of the standard range; the state sentencing judge made
abundantly clear that he understood the limitations
included in the plea agreement; and when sentencing Dunn
to a minimum sentence of seven-and-a-half years and a
maximum sentence of twenty years, the judge str essed a
factor not emphasized by the prosecutor . The judge
explained that he was "extremely troubled" by the fact that
Dunn did nothing to seek medical advice throughout the
day, despite the obvious signs of injury to his infant son.
App. at 452. Worse, Dunn threatened his wife by breaking
a window when she attempted to seek medical advice and
would not drive her and the child to a doctor until she said
she would call a lawyer. As the majority opinion details, the
evidence at sentencing against Dunn was overwhelming.
Dunn's wife gave the following description of her son's
condition at the sentencing hearing:

                               32
       He vomits all the time, he's in tremendous pain, he has
       to take a lot of medications. It's usually accompanied
       with vomiting. It can damage his liver if it's not
       monitored properly. He constantly has to have his
       blood level drawn. He's constantly--he has mucous
       and he can't clear his own mucous. He is in danger of
       aspirating if he inhales it all back into his lungs, which
       can cause pneumonia.

App. at 394. She added that her son was fed thr ough a
tube into his stomach, would cry for three hours at a time,
and had no motor skills at fifteen months, the infant's age
at sentencing. No one disputed that the child's life
expectancy was no more than two-to-seven years, and that
he would require nearly constant medical care during that
time. It also should be emphasized that the sour ce of harm
the majority must rely upon is the differ ence in effect
between what they say was impermissible--the prosecutor's
use of the terms "lengthy" and "considerable"--and the
word choice that undeniably would have been per missible--
a request by the prosecution for the highest minimum
sentence in the standard range.

The majority's analysis is also rewarding exactly the sort
of tactical use of federal habeas relief that the Supreme
Court has sought to prevent. See, e.g., Brecht, 507 U.S. at
635, 113 S.Ct. at 1720-21 (citing Engle v. Isaac , 456 U.S.
107, 127, 102 S.Ct. 1558, 1571 (1982); Rose v. Lundy, 455
U.S. 509, 547, 102 S.Ct. 1198, 1218 (1982)). At Dunn's
state post-conviction hearing, the trial judge engaged in the
following colloquy with the lawyer who repr esented Dunn at
the original plea and sentencing hearings:

       The Court: There had been plea negotiations over
       some period of time; is that correct?

       Mr. Barr: Absolutely.

       The Court: And the plea negotiations or the plea that
       was previously offered, were there better
       terms in your estimation?

       Mr. Barr: Yes. The longer this case went on, the
       worse the terms became because the
       child's condition became worse.

                               33
       The Court: I see. In other words--the condition of that
       child was what, Mr. Barr?

       Mr. Barr: Very, very serious. He had very serious
       brain injury.

App. at 332-33. In his findings of fact, the trial judge
concluded that after Dunn was charged, he"was open to
the possibility of a guilty plea and plea negotiations were
conducted over a lengthy period of time. The ter ms of the
agreement offered by the Commonwealth, however, became
less attractive as the child's conditioned [sic] worsened.
Attorney Barr believed that a plea was in Defendant's best
interest as Defendant could face homicide char ges if the
child were to die." App. at 296-97. It is a fair inference that
the reason Dunn declined to file a dir ect appeal is that even
if the appellate court agreed there had been a breach of the
plea agreement (and later events show that the court
thought there was no breach), the chance that the plea
would have been vacated exposed Dunn to potential
homicide charges at worst, and less favorable plea terms at
best.

And contrary to the majority's suggestion in footnote 7,
Dunn could not have been sure that if he appealed and the
child died, he would be able to avoid having his plea
vacated, for Santobello does not give a criminal defendant
the right to choose between resentencing or having the plea
vacated. Chief Justice Burger's majority opinion concluded,
"The ultimate relief to which petitioner is entitled we leave
to the discretion of the state court. . . ." Santobello, 404
U.S. at 263, 92 S.Ct. 499. The separate opinions in
Santobello do not provide authority otherwise. Neither
Justice Douglas's opinion, which no other Justice joined,
nor Justice Marshall's opinion, which attracted two other
votes, provides a basis for rejecting the majority opinion's
rule that the lower court retains discr etion about the choice
of relief.

The majority's reason for concluding that har mless error
does not apply is that in Santobello--a direct-review case--
the Supreme Court said that it would remand to the state
courts even though the state sentencing judge said that the
prosecutor's breach of the plea agr eement did not affect the

                               34
sentence he imposed. Relying exclusively on this aspect of
Santobello this circuit has continued to say in cases
involving direct review that harmless error does not apply
to a prosecutor's breach of a plea agr eement. See United
States v. Nolan-Cooper, 155 F.3d 221, 236 (3d Cir. 1998)
(citing United States v. Hayes, 946 F .2d 230, 233 (3d Cir.
1991) (citing Santobello)).

We have never, however, addr essed whether Santobello's
conclusion about harmless error should be expanded to
apply in habeas and in the teeth of the Supr eme Court's
more recent decision, Brecht . Indeed, in the thirty years
since Santobello was decided, there has been an avalanche
of cases expanding harmless-error analysis to
constitutional errors occurring during all phases of criminal
trials and sentencing. See, e.g., Neder v. United States, 527
U.S. 1, 119 S.Ct. 1827 (1999) (jury instruction's omission
of materiality requirement, an offense element, was
harmless error); Yates v. Evatt, 500 U.S. 391, 111 S.Ct.
1884 (1991) (harmless error applied to mandatory
rebuttable presumption in jury instructions); Arizona v.
Fulminante, 499 U.S. 307, 306-09, 111 S.Ct. 1246, 1263-
64 (1991) (harmless error applied to coer ced confessions
that were admitted into evidence); Clemons v. Mississippi,
494 U.S. 738, 752-54, 110 S.Ct. 1441, 1450-51 (1990)
(applying harmless error to unconstitutionally overbroad
jury instructions at the sentencing stage of a capital case);
Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792 (1988)
(admission of evidence at the sentencing stage of a capital
case in violation of the Sixth Amendment Counsel Clause);
Carella v. California, 491 U.S. 263, 266, 109 S.Ct. 2419,
2421 (1989) (jury instructions containing an err oneous
conclusive presumption); Pope v. Illinois , 481 U.S. 497,
501-504, 107 S.Ct. 1918, 1921-23 (1987) (jury instruction
misstating an element of the offense); Rose v. Clark, 478
U.S. 570, 106 S.Ct. 3101 (1986) (jury instructions
containing erroneous rebuttable pr esumption); Crane v.
Kentucky, 476 U.S. 683, 691, 106 S.Ct. 2142, 2147 (1986)
(erroneous exclusion of defendant's testimony about the
circumstances of his confession); Delawar e v. Van Arsdall,
475 U.S. 673, 106 S.Ct. 1431 (1986) (unconstitutional
restriction on defendant's right to cross-examine a witness);
Rushen v. Spain, 464 U.S. 114, 117-18, and n.2, 104 S.Ct.

                               35
453, 454-55, and n.2 (1983) (denial of defendant's right to
be present at trial); United States v. Hasting, 461 U.S. 499,
103 S.Ct. 1974 (1983) (unconstitutional comment on
defendant's silence at trial in violation of Fifth Amendment);
Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049 (1982)
(unconstitutional statute forbidding trial court fr om giving
jury instruction on lesser included offense in a capital
case); Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088
(1979) (failure to instruct jury on presumption of
innocence); Moore v. Illinois, 434 U.S. 220, 232, 98 S.Ct.
458, 466 (1977) (evidence admitted in violation of Sixth
Amendment); Brown v. United States, 411 U.S. 223, 231-
32, 93 S.Ct. 1565, 1570-71 (1973) (admission of out-of-
court statement of nontestifying codefendant in violation of
Sixth Amendment); Milton v. Wainwright , 407 U.S. 371, 92
S.Ct. 2174 (1972) (confession unconstitutionally obtained).

The majority implies that harmless-err or analysis should
not apply to a breach of a plea agreement because, the
majority asserts, such a violation is structural err or. The
majority is correct that the "Kotteakos standard [invoked in
Brecht] did not apply to `structural defects in the
constitution of the trial mechanism, which defy analysis by
`harmless-error' standards.' " California v. Roy, 519 U.S. 2,
5, 117 S.Ct. 337, 338 (1996) (per curiam) (quoting Brecht,
507 U.S. at 629, 113 S.Ct. at 1717). But the tr ouble with
the majority's argument is that the Supr eme Court has
never said violations of Santobello ar e structural error, and
there is a "strong presumption" against finding that a given
type of constitutional violation is structural. Rose v. Clark,
478 U.S. at 579, 106 S.Ct. at 3106. Twice in r ecent years
the Supreme Court has listed the "very limited class of
cases" where the error is deemed structural, see Neder, 527
U.S. at 8, 119 S.Ct. at 1833; Johnson v. United States, 520
U.S. 461, 468, 117 S.Ct. 1544, 1549 (1997), and pointedly
a breach of a plea agreement in violation of Santobello was
not included.

Nor is it plausible that the Supreme Court would now
decide to expand the class of structural err ors, and wall off
over ninety percent of state criminal convictions from
harmless-error analysis on habeas r eview, particularly
since pleas are not likely to concern cases involving

                               36
innocent defendants. The majority retorts that no far-
reaching precedent is at stake because state prisoners who
challenge their guilty pleas may face harmless error for
claims other than an alleged breach of a plea agreement.
But what viable constitutional claims besides br each of a
plea agreement are available to a habeas petitioner who
pleaded guilty in state court? In any event, the majority
cannot obscure the impact of barring har mless-error
analysis in habeas review of plea agreements by pointing
out that the doctrine might apply to some other claims. The
fact remains that over ninety percent of defendants enter
guilty pleas, and as a result barring har mless-error
analysis from habeas review of alleged br eaches of plea
agreements will have a much bigger impact than barring
harmless-error analysis from any rule affecting trials.

Removing breaches of plea agreements fr om harmless
error may make sense on direct review, where the relevant
evidence of the defendant's guilt has not gr own as stale,
and where comity and federalism are not at stake, but not
so for habeas review. By the time a federal court considers
a habeas petition, victims who want to get on with their
lives may no longer be willing to testify at sentencing, and
if the plea is vacated, evidence may have disappear ed or
grown stale, making it harder for the state to prove what
was once an easy case. And regardless of whether the plea
is vacated or resentencing ordered, granting relief forces a
direct intrusion on state courts' authority even though the
outcome of the state proceeding was not af fected.

Finality serves important interests and is most
compelling when there was no harm fr om the alleged error.
The majority's opinion reaches the wrong r esult in this case
and, given the vast number of pleas in state court, creates
precedent that will multiply that error many times in future
cases. I dissent.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               37
