State v. Brown, 435 P.3d 546

Wyatt G. Brown pleaded no contest to aggravated sodomy and was initially sentenced to 360 months after the court granted two departures (from Jessica's Law to the sentencing grid and a durational downward departure).
The Court of Appeals vacated the sentence because the district court failed to state on the record reasons for the durational departure as required by statute, and remanded for resentencing.
At resentencing the same judge granted the same departures but increased Brown's term to 372 months (12 months more). The judge’s oral remarks and victim/family statements referenced Brown’s successful appeal as causing renewed trauma and urged more time.
The prosecutor and victim’s mother expressly argued for a longer sentence because Brown’s appeal forced the parties back to court; the judge acknowledged those arguments when imposing the additional 12 months.
The Court of Appeals affirmed the longer sentence (split panel); a dissent argued the increase was imposed solely because Brown exercised his right to appeal and therefore was vindictive.
The Kansas Supreme Court granted review and held Brown’s due process rights were violated because the additional 12 months was an impermissible penalty for pursuing a successful appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an increased sentence on resentencing violated due process as vindictive punishment for filing a successful appeal	State: resentencing may consider all factors anew; initial sentence was illegal so second sentence can be greater	Brown: increase was imposed because he exercised his right to appeal; that punishes appeal and violates due process	Court: increase was vindictive; vacated sentence and remanded for resentencing
Whether Pearce presumption of vindictiveness applies	State: no presumption; case analogous to situations where presumption doesn't apply	Brown: presumption or actual vindictiveness applies because record shows increase tied to appeal	Court: even if presumption not applied, actual vindictiveness shown by record warrants relief
Whether objective, new information justified the harsher sentence	State: court may rely on reevaluation and additional factors on remand	Brown: no new objective, identifiable conduct supported the 12‑month increase	Court: judge cited appeal and victims’ renewed trauma—insufficient as permissible objective justification; increase impermissibly tied to appeal
Proper remedy for vindictive resentencing	State: affirm resentencing	Brown: vacate increased portion and remand for resentencing without vindictive consideration	Court: vacated sentence and remanded for resentencing consistent with due process

North Carolina v. Pearce, 395 U.S. 711 (constitutional prohibition on vindictive sentencing; reasons for increased sentence must affirmatively appear)
Colten v. Kentucky, 407 U.S. 104 (limits on Pearce presumption in certain retrial contexts)
Chaffin v. Stynchcombe, 412 U.S. 17 (presumption not applicable where retrial decision-maker lacks vindictive motive)
Blackledge v. Perry, 417 U.S. 21 (presumption applied where realistic likelihood of vindictiveness exists)
Wasman v. United States, 468 U.S. 559 (presumption inapplicable when intervening events justify harsher sentence)
Texas v. McCullough, 475 U.S. 134 (a judge may rely on objective, identifiable conduct to justify enhancement on resentencing)
Alabama v. Smith, 490 U.S. 794 (presumption not applicable where different procedural posture yields new information)
State v. Rinck, 260 Kan. 634 (Kan. Supreme Court applied Pearce presumption where record lacked objective reasons for increased sentence)
State v. Spencer, 291 Kan. 796 (on remand court may reevaluate sentencing factors; distinguished where original error differs from this case)