Santaniello, J.
On June 10, 1986, the defendant, Neal Taylor, pleaded guilty to the crimes of larceny in the third degree in violation of General Statutes § 53a-124,1 forgery in the third degree in violation of General Statutes § 53a-140,2 and criminal impersonation in violation of General Statutes § 53a-130.3 The [111]*111agreed upon recommendation was a sentence of no more than three years, the defendant to retain the right to withdraw the pleas if the sentencing court were to impose a greater sentence. At sentencing, which took place on July 25,1986, the court imposed a total effective sentence of five years suspended after two and one-half years with probation for three years.4 The defendant filed a motion for modification of the sentence which was denied by the court.5
Thereafter, the defendant filed an amended petition for a writ of habeas corpus claiming, inter alia, that his due process rights as guaranteed by the fourteenth amendment to the United States constitution6 and article first, § 8, of the Connecticut constitution7 had been [112]*112violated as a result of the sentencing court’s failure to impose a sentence of no more than three years, and as a result of the sentencing court’s failure to allow him to withdraw his pleas.8 The habeas court found, inter alia, that his rights had been prejudiced by the imposition of an effective sentence greater than that agreed to, and ordered the court to vacate the sentences and either impose an effective sentence of not more than three years, or allow the defendant to withdraw his pleas. The court, upon resentencing, vacated the original sentences and imposed a total effective sentence of three years.
The defendant appealed, claiming that the increase in the term of incarceration from two and one-half to [113]*113three years, without an articulation of the reasons for that increase, violated his due process rights under the doctrine of North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), and State v. Sutton, 197 Conn. 485, 498 A.2d 65 (1985), cert. denied, 474 U.S. 1073, 106 S. Ct. 833, 88 L. Ed. 2d 804 (1986). The issue, as framed by the defendant, is: “[Wjhether the defendant was denied his rights to due process of law under the fourteenth amendment to the U. S. Constitution and article first, section eight of the Connecticut Constitution when the trial court, on remand for resentencing following a habeas corpus proceeding, resentenced the defendant to a term of three years imprisonment without articulating any objective information concerning identifiable conduct on the part of the defendant?”
This court must determine whether the resentencing procedure followed by the court on remand is governed by the dictates of North Carolina v. Pearce, supra, and its progeny, which were followed by this court in State v. Sutton, supra.9 In North Carolina v. Pearce, supra, the court examined the constitutional constraints imposed on a court which metes out a greater sentence upon retrial than that which the defendant originally received. After holding that neither the equal protection clause nor the double jeopardy provision imposes an absolute bar to a harsher sentence upon reconviction, the court considered the impact of the due process clause on such a position. Id., [114]*114723-26. Where a conviction has been set aside, the action of a court in imposing a harsher sentence upon reconviction for the purpose of punishing a defendant for exercising his rights in seeking to have the conviction set aside is a “flagrant” violation of due process of law. Id., 723-24. Due process requires that vindictiveness must not enter into resentencing that results from a successful attack on a defendant’s conviction. Id., 725. A defendant’s fear of such vindictive behavior may unconstitutionally deter the exercise of the right to appeal or to attack collaterally a conviction, and thus, due process requires that a defendant be free from such apprehension. Id. To ensure that retaliatory motivation does not enter into the resentencing process, whenever a court imposes a harsher sentence following a new trial, the court must state its reasons upon the record. Id., 726.
The United States Supreme Court has subsequently examined the applicability of the Pearce presumption of vindictiveness. See, e.g., Texas v. McCullough, 475 U.S. 134, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986) (defendant originally sentenced by jury; judge concluded defendant entitled to new trial; upon retrial defendant chose sentencing by judge; Pearce presumption inapplicable and even if it were to apply, court’s findings overcame presumption); Wasman v. United States, 468 U.S. 559, 569, 104 S. Ct. 3217, 82 L. Ed. 2d 424 (1984) (presumption of vindictiveness applies since petitioner received greater sentence following retrial than that he had originally received; consideration by court of conviction between original sentencing and sentencing after retrial rebuts presumption); United States v. Goodwin, 457 U.S. 368, 372-84, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982) (pretrial decision by prosecutor to modify charges does not warrant presumption of prosecutorial vindictiveness in pretrial setting); Bordenkircher v. Hayes, 434 U.S. 357, 362-64, [115]*11598 S. Ct. 663, 54 L. Ed. 2d 604, reh. denied, 435 U.S. 918, 98 S. Ct. 1477, 55 L. Ed. 2d 511 (1978) (prosecutor’s action in carrying through on statement made during plea negotiations to bring additional charges against defendant if he refused to plead guilty to offense originally charged did not violate due process clause); Blackledge v. Perry, 417 U.S. 21, 25-29, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974) (prosecutor may not bring more serious charge against defendant prior to trial de novo in response to defendant’s exercise of statutory right to appeal); Chaffin v. Stynchcombe, 412 U.S. 17, 24-28, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973) (where resentencing occurs before a jury, potential for abuse in sentencing is minimal; Pearce does not apply); Cotten v. Kentucky, 407 U. S. 104, 112-20, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972) (prophylactic rule announced in Pearce not appropriate in context of two-tier system which allowed for trial de novo in court of general criminal jurisdiction following trial or guilty plea in an inferior court; likelihood of vindictiveness not present).
The decision in North Carolina v. Pearce,
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Santaniello, J.
On June 10, 1986, the defendant, Neal Taylor, pleaded guilty to the crimes of larceny in the third degree in violation of General Statutes § 53a-124,1 forgery in the third degree in violation of General Statutes § 53a-140,2 and criminal impersonation in violation of General Statutes § 53a-130.3 The [111]*111agreed upon recommendation was a sentence of no more than three years, the defendant to retain the right to withdraw the pleas if the sentencing court were to impose a greater sentence. At sentencing, which took place on July 25,1986, the court imposed a total effective sentence of five years suspended after two and one-half years with probation for three years.4 The defendant filed a motion for modification of the sentence which was denied by the court.5
Thereafter, the defendant filed an amended petition for a writ of habeas corpus claiming, inter alia, that his due process rights as guaranteed by the fourteenth amendment to the United States constitution6 and article first, § 8, of the Connecticut constitution7 had been [112]*112violated as a result of the sentencing court’s failure to impose a sentence of no more than three years, and as a result of the sentencing court’s failure to allow him to withdraw his pleas.8 The habeas court found, inter alia, that his rights had been prejudiced by the imposition of an effective sentence greater than that agreed to, and ordered the court to vacate the sentences and either impose an effective sentence of not more than three years, or allow the defendant to withdraw his pleas. The court, upon resentencing, vacated the original sentences and imposed a total effective sentence of three years.
The defendant appealed, claiming that the increase in the term of incarceration from two and one-half to [113]*113three years, without an articulation of the reasons for that increase, violated his due process rights under the doctrine of North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), and State v. Sutton, 197 Conn. 485, 498 A.2d 65 (1985), cert. denied, 474 U.S. 1073, 106 S. Ct. 833, 88 L. Ed. 2d 804 (1986). The issue, as framed by the defendant, is: “[Wjhether the defendant was denied his rights to due process of law under the fourteenth amendment to the U. S. Constitution and article first, section eight of the Connecticut Constitution when the trial court, on remand for resentencing following a habeas corpus proceeding, resentenced the defendant to a term of three years imprisonment without articulating any objective information concerning identifiable conduct on the part of the defendant?”
This court must determine whether the resentencing procedure followed by the court on remand is governed by the dictates of North Carolina v. Pearce, supra, and its progeny, which were followed by this court in State v. Sutton, supra.9 In North Carolina v. Pearce, supra, the court examined the constitutional constraints imposed on a court which metes out a greater sentence upon retrial than that which the defendant originally received. After holding that neither the equal protection clause nor the double jeopardy provision imposes an absolute bar to a harsher sentence upon reconviction, the court considered the impact of the due process clause on such a position. Id., [114]*114723-26. Where a conviction has been set aside, the action of a court in imposing a harsher sentence upon reconviction for the purpose of punishing a defendant for exercising his rights in seeking to have the conviction set aside is a “flagrant” violation of due process of law. Id., 723-24. Due process requires that vindictiveness must not enter into resentencing that results from a successful attack on a defendant’s conviction. Id., 725. A defendant’s fear of such vindictive behavior may unconstitutionally deter the exercise of the right to appeal or to attack collaterally a conviction, and thus, due process requires that a defendant be free from such apprehension. Id. To ensure that retaliatory motivation does not enter into the resentencing process, whenever a court imposes a harsher sentence following a new trial, the court must state its reasons upon the record. Id., 726.
The United States Supreme Court has subsequently examined the applicability of the Pearce presumption of vindictiveness. See, e.g., Texas v. McCullough, 475 U.S. 134, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986) (defendant originally sentenced by jury; judge concluded defendant entitled to new trial; upon retrial defendant chose sentencing by judge; Pearce presumption inapplicable and even if it were to apply, court’s findings overcame presumption); Wasman v. United States, 468 U.S. 559, 569, 104 S. Ct. 3217, 82 L. Ed. 2d 424 (1984) (presumption of vindictiveness applies since petitioner received greater sentence following retrial than that he had originally received; consideration by court of conviction between original sentencing and sentencing after retrial rebuts presumption); United States v. Goodwin, 457 U.S. 368, 372-84, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982) (pretrial decision by prosecutor to modify charges does not warrant presumption of prosecutorial vindictiveness in pretrial setting); Bordenkircher v. Hayes, 434 U.S. 357, 362-64, [115]*11598 S. Ct. 663, 54 L. Ed. 2d 604, reh. denied, 435 U.S. 918, 98 S. Ct. 1477, 55 L. Ed. 2d 511 (1978) (prosecutor’s action in carrying through on statement made during plea negotiations to bring additional charges against defendant if he refused to plead guilty to offense originally charged did not violate due process clause); Blackledge v. Perry, 417 U.S. 21, 25-29, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974) (prosecutor may not bring more serious charge against defendant prior to trial de novo in response to defendant’s exercise of statutory right to appeal); Chaffin v. Stynchcombe, 412 U.S. 17, 24-28, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973) (where resentencing occurs before a jury, potential for abuse in sentencing is minimal; Pearce does not apply); Cotten v. Kentucky, 407 U. S. 104, 112-20, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972) (prophylactic rule announced in Pearce not appropriate in context of two-tier system which allowed for trial de novo in court of general criminal jurisdiction following trial or guilty plea in an inferior court; likelihood of vindictiveness not present).
The decision in North Carolina v. Pearce, supra, “was only ‘premised on the apparent need to guard against vindictiveness in the resentencing process.’ ” (Emphasis in original.) Wasman v. United States, supra, 567, quoting Chaffin v. Stynchcombe, supra, 25. “[I]n certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right, the Court has found it necessary to ‘presume’ an improper vindictive motive. Given the severity of such a presumption, however—which may operate in the absence of any proof of an improper motive and thus may block a legitimate response to criminal conduct— the Court has done so only in cases in which a reasonable likelihood of vindictiveness exists.” United States v. Goodwin, supra, 373; Wasman v. United States, supra, 566. “The Pearce requirements thus do not apply in every case where a convicted defendant receives a [116]*116higher sentence on retrial. Like other ‘judicially created means of effectuating the rights secured by the [Constitution]’. . . we have restricted application of Pearce to areas where its ‘objectives are thought most efficaciously served’ . . . . ” (Citations omitted). Texas v. McCullough, supra, 138.
The violation of due process in situations such as Pearce and Perry does not arise from the possibility that a defendant may be discouraged from exercising legal rights, but instead from the “danger that the State might be retaliating against the accused for lawfully attacking his conviction.” Bordenkircher v. Hayes, supra, 363. “[W]here the presumption applies, the sentencing authority or the prosecutor must rebut the presumption that an increased sentence or charge resulted from vindictiveness; where the presumption does not apply, the defendant must affirmatively prove actual vindictiveness.” Wasman v. United States, supra, 569; see Texas v. McCullough, supra, 138.
In the case before this court, the defendant pleaded guilty to three charges. There is no claim that the pleas, when entered, were involuntary. The agreed upon recommendation at the time of the pleas was a sentence of no more than three years, with the defendant retaining the right to withdraw his pleas if the sentencing court should exceed the agreement. The sentencing court imposed an effective sentence of five years, suspended after two and one-half years, with probation for three years, a sentence that the habeas court determined was greater than three years. The habeas court therefore ordered the sentencing court to “vacate the sentences imposed, and either . . . impose an effective sentence of not more than three years, if it can do so ‘in conscience,’ or, if it cannot ‘in conscience’ impose an effective sentence of not more than three years, then in such event, it allow petitioner to withdraw each of his pleas of guilty and it order him to be [117]*117put to trial on said charges.” The sentencing court vacated the sentences in accordance with the order, and imposed an effective sentence of three years.
This court concludes that no realistic motive for vindictive sentencing exists in the action taken by the sentencing court, and that the Pearce presumption is therefore inapplicable. The sentencing court’s actions were within the parameters of the habeas court’s order and, equally important, were in accordance with the agreement reached between the parties. Where the Pearce presumption does not apply, the defendant must prove that vindictiveness actually occurred in the resentencing procedure, in order to obtain relief. The record fails to support such a claim.
In view of this court’s decision that the rationale of Pearce and its progeny is inapposite, and that actual vindictiveness has not been proved, we find no error.
There is no error.
In this opinion Healey, Shea and Covello, Js., concurred.