Johnson v. State
307 Ga. App. 499
Ga. Ct. App.2010Background
- Johnson was convicted by jury of criminal damage to property in the second degree, possession of a knife during a crime, carrying a concealed weapon, and misdemeanor obstruction; he appealed after remand for resentencing.
- The original aggregate sentence was ten years, with five years for Count 2, five years for Count 3 consecutive to Count 2, and 12-month sentences for Counts 4 and 5 concurrent with Count 3.
- In Johnson v. State, 302 Ga.App. 318 (2010), the appellate court reversed the knife-conviction and affirmed the others, remanding for resentencing.
- On remand, the trial court reimposed five years on Count 2, vacated Count 3, and ordered Counts 4 and 5 to run 12 months each, consecutive to Count 2 and Count 4 respectively, reducing total confinement to six years.
- Johnson argued the remand sentence was impermissibly harsher and vindictive; the State argued no increase in aggregate punishment occurred and the original terms were unchanged in effect.
- The court held there was no harsher punishment on resentencing because the five-year Count 2 term remained and the misdemeanor sentences were simply made consecutive to Count 2 as required, not increased.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether resentencing violated due process by being vindictive | Johnson argues vindictiveness on resentencing | State contends no increase in severity occurred | No presumption of vindictiveness; no greater aggregate punishment |
| Whether converting concurrent misdemeanors to be consecutive to Count 2 constitutes harsher punishment | Johnson contends it creates harsher terms | State contends it does not increase total confinement | Resentencing did not increase total term; not harsher |
Key Cases Cited
- Alvarado v. State, 248 Ga. App. 810 (Ga. App. 2001) (vindictiveness standard; due process protection against harsher resentencing)
- Wasman v. United States, 468 U.S. 559 (U.S. 1984) (presumption of vindictiveness may be overcome by record evidence)
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969) (vindictiveness prohibition in resentencing)
- Fair v. State, 281 Ga. App. 518 (Ga. App. 2006) (converting concurrent to consecutive without increasing length not harsher)
- Duffey v. State, 222 Ga. App. 802 (Ga. App. 1996) (same: no harsher punishment when changing structure)
- Adams v. State, 287 Ga. 513 (Ga. 2010) (Pearce presumption not triggered if aggregate not more severe)