Perryman v. State, 120 So. 3d 1048

Perryman pled guilty in 1999 to five felonies (four aggravated assaults and one felon in possession) and was sentenced under the less severe habitual-offender statute, with concurrent terms totaling twenty years per aggravated assault and three years for the firearm charge; the court did not specify which habitual-offender enhancement applied.
More than twelve years later, a successor judge (Webster) vacated Perryman’s original sentences and ordered resentencing.
At resentencing, Perryman asked for time served, but the successor judge imposed new, harsher terms: twenty years on each aggravated-assault count and three years on the gun charge, with Counts I and II ordered to run consecutively, yielding a forty-year sentence.
Perryman’s counsel was not appointed; Perryman waived counsel and proceeded pro se after the judge gave only minimal, non-comprehensive guidance about self-representation.
Perryman challenges (1) a presumed vindictiveness due to the harsher sentence, and (2) the voluntariness of his waiver of counsel under Faretta; the Mississippi Court of Appeals vacates the resentencing and remands for new proceedings.
The court recognizes that a different sentencer in a resentencing reduces the likelihood of vindictiveness, and it ultimately vacates Perryman’s sentence on Faretta grounds and remands for resentencing to address the counsel-waiver issue.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Vindictiveness presumption with successor judge	Perryman argues Pearce applies; harsher sentence after vacating original implies vindictiveness	Different sentencers negate Pearce presumption; no proof of vindictiveness	Presumption inapplicable; no actual vindictiveness shown.
Voluntariness of waiver of counsel at resentencing	Failure to advise dangers of self-representation rendered waiver involuntary	Waiver decided by Perryman; minimal guidance provided; waiver valid	Waiver not sufficiently informed; sentence vacated and remanded for resentencing.
Scope of Faretta and Rule 8.05 at sentencing	Faretta and Rule 8.05 require explicit warnings about dangers of self-representation	Rules applicable; court should ensure a knowing, intelligent waiver	Jurisdiction requires explicit, tailored warnings; current waiver insufficient.
Effect of resentencing by a successor judge on vindictiveness doctrine	Resentencing by a new judge may avoid vindictiveness concerns	Vindictiveness concerns persist where waiver issues exist	Resentencing court’s actions reviewed; vindictiveness not proven; focus on Faretta concerns.

Pearce v. United States, 395 U.S. 711 (1969) (presumption of vindictiveness when same judge imposes harsher sentence on retrial)
Colten v. Kentucky, 407 U.S. 104 (1972) (presumption not required when a second court imposes a longer sentence in two-tier system)
Chaffin v. Stynchcombe, 412 U.S. 17 (1973) (Pearce not applicable where retrial leads to higher sentence)
Blackledge v. Perry, 417 U.S. 21 (1974) (presumption must be tempered by realistic likelihood of vindictiveness)
McCullough v. United States, 475 U.S. 134 (1986) (vindictiveness not presumed when different sentencers impose outcomes)
Patton v. State, 34 So.3d 563 (Miss.2010) (Faretta-like inquiry applied to trials; Rule 8.05 requirements emphasized)
Virgil v. United States, 444 F.3d 447 (5th Cir.2006) (right to counsel extends to sentencing; waiver must be knowing and intelligent)
Salemo v. Day, 61 F.3d 214 (3d Cir.1995) (inquiry at sentencing must advise of dangers of self-representation)
United States v. Day, 998 F.2d 622 (8th Cir.1993) (sentencing waiver inquiries less exhaustive than trial)
Bush v. State, 667 So.2d 26 (Miss.1996) (successor-judge vindictiveness concerns addressed in Mississippi)