423 U.S. 61 (1975)
In November 1968, after receiving a grant of immunity, Menna refused to answer questions before a Kings County grand jury investigating a murder conspiracy.1 The next March, Menna refused to obey a court order to return and testify before the same grand jury in connection with the same investigation.2 A court adjudicated Menna in contempt and, after he declined an offer to purge the contempt, sentenced him to a thirty-day jail term, which he served.3
On June 10, 1970, Menna was indicted for his refusal to answer questions before the grand jury on November 7, 1968.4 Menna moved unsuccessfully to dismiss the indictment.5 He then pleaded guilty and was sentenced on the plea.6
Menna appealed his conviction, claiming that the Double Jeopardy Clause precluded the State from prosecuting him on the charge.7 The New York Court of Appeals affirmed the conviction without addressing the double jeopardy claim on the merits.8 It held that the claim had been waived by the guilty plea.9 The Supreme Court granted certiorari to review the case.10
Whether the Double Jeopardy Clause precluded the State from haling petitioner into court on the charge to which he had pleaded guilty?11
No. The Supreme Court did not decide the merits of Menna's double jeopardy claim on the facts presented.14 The State conceded that the claim was strong because the prior contempt adjudication constituted a criminal conviction for the same conduct charged in the indictment.15 The Court remanded the case to the New York Court of Appeals.16 It directed that court to address the double jeopardy claim on the merits while expressing no view itself on whether the Clause barred the prosecution.17
The case is remanded for further proceedings on the double jeopardy claim.18
Whether petitioner's counseled plea of guilty waived his double jeopardy claim?19
A plea of guilty to a charge does not waive a claim that, judged on its face, the charge is one which the State may not constitutionally prosecute.20
No. Menna's guilty plea does not waive his double jeopardy claim because the claim is that the State may not convict him regardless of factual guilt, as the charge is one the State may not constitutionally prosecute.21 The New York Court of Appeals erred in holding that the claim was waived by the plea under Tollett v. Henderson.22 A counseled guilty plea removes issues of factual guilt from the case but does not bar claims that the State lacks power to prosecute the charge at all.23
The conviction on the charge must be set aside if the double jeopardy claim succeeds on the merits.24