State v. Bradley, 383 P.3d 937

Defendant was convicted on multiple counts involving two victims (C and Z); convictions related to C were reversed on appeal, convictions related to Z (Counts 12, 13, 14) were affirmed.
Original aggregate sentence was 215 months; for Z-related counts the court had imposed concurrent terms totaling 115 months for those counts.
Appellate court remanded for resentencing on the affirmed counts pursuant to ORS 138.222(5)(b).
At resentencing the trial court increased the total punishment on the affirmed counts to 183 months (an increase of 68 months for those counts) and explained it considered unconvicted conduct (the reversed C-related allegations) among other factors.
Defendant claimed the increased sentence was vindictive (due process), and also raised merger and concurrency arguments for Counts 12 and 13.
The state later dismissed the reversed counts after resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether resentencing to a longer sentence on affirmed counts violated due process by being vindictive	State: sentencing was not vindictive; court cited permissible factors and reduced total aggregate sentence overall	Bradley: resentencing increased punishment on affirmed counts without new facts and relied on unconvicted conduct, producing vindictiveness	Court held the resentencing was vindictive because the trial court relied on reversed, pending charges to increase punishment; defendant proved actual vindictiveness and resentencing remanded
Whether Counts 12 and 13 should merge under ORS 161.067(3)	State: no merger because counts involved separate criminal acts	Bradley: counts merged and should not yield separate punishments	Not decided on merits; court remanded so trial court can reconsider merger at resentencing
Whether sentences on Counts 12 and 13 should run concurrently under ORS 137.123(5)	State: trial court can order consecutive sentences based on multiple offenses	Bradley: argued they should run concurrently as previously imposed	Not decided on merits; left for trial court to address on remand
Whether a merger claim is within the scope of a resentencing remand under ORS 138.222	Bradley: merger claim reviewable on remand	State: argued merger claim outside remand scope	Court held merger claims are reviewable as sentencing claims and may be addressed on remand

State v. Partain, 349 Or. 10 (Or. 2010) (on limits for increasing sentences at resentencing and requirement that reasons appear on the record)
North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969) (due process prohibits vindictive sentencing after successful attack on conviction)
Wasman v. United States, 468 U.S. 559 (U.S. 1984) (defendant must prove actual vindictiveness when presumption does not apply)
State v. Febuary, 274 Or. App. 820 (Or. Ct. App. 2015) (distinguishing cases where increased sentence did not reflect vindictiveness)
State v. Hollingquest, 241 Or. App. 1 (Or. Ct. App. 2011) (resentencing must be constitutional at time of resentencing)
United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir. 1989) (discussing reconstructed sentencing packages following plea agreements)