State v. Febuary, 361 P.3d 661

Defendant (Febuary) was originally convicted of five offenses including first-degree sexual abuse (Count 1) and providing alcohol to a person under 21 (Count 2); total prison exposure ordered: 170 months (probation on Count 2).
This court reversed in part on appeal and remanded; on remand Febuary pled guilty to two counts (Counts 1 and 2) and three counts were dismissed.
At resentencing the trial court imposed 75 months on Count 1 and 12 months imprisonment on Count 2 (consecutive), for a new total of 87 months.
Febuary challenged the 12-month jail term on Count 2 as a presumptively vindictive increase (Pearce/Partain), arguing that increasing the sentence on that individual count violated due process.
The State argued the Pearce presumption does not apply because the aggregate sentence after resentencing (87 months) is substantially less than the original aggregate (170 months), and—absent proof of actual vindictiveness—the claim fails.

Issue	Plaintiff's Argument (Febuary)	Defendant's Argument (State)	Held
Whether the Pearce presumption of vindictiveness applies to an increased sentence on an individual count after successful appeal	Pearacy: The increased sentence on Count 2 (12 months vs. prior 60 months probation) is presumptively vindictive and violates due process; Partain should apply to each individual count	State: Presumption applies only if the total resentencing is more severe; here aggregate sentence (87 mo) < original (170 mo), so presumption does not attach	Court held Pearce/Partain measured by the aggregate approach: presumption applies only when the total sentence is longer or more severe after resentencing; it did not apply here
Whether, absent the presumption, Febuary proved actual judicial vindictiveness	Febuary: (argues vindictiveness implicitly via sentence increase on Count 2)	State: No evidence of actual vindictiveness; trial judge’s statements show nonvindictive, fact-based reasons	Held: Because the presumption did not apply, burden shifted to Febuary to prove actual vindictiveness; he did not; the trial court’s explanation showed nonvindictive reasons; affirmation.

North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969) (announced presumption requiring reasons when a judge imposes a more severe sentence after retrial)
State v. Partain, 239 P.3d 232 (Or. 2010) (Oregon adopts Pearce presumption as modified and instructs on resentencing; remand guidance distinguishes aggregate total sentence)
Wasman v. United States, 468 U.S. 559 (1984) (presumption of vindictiveness may be overcome only by objective information in the record)
United States v. Campbell, 106 F.3d 64 (5th Cir. 1997) (adopts aggregate approach; upholds increased individual count sentence where overall sentence was less severe)
Pimienta-Redondo v. United States, 874 F.2d 9 (1st Cir. 1989) (support for reconstructing the sentencing ‘architecture’ on remand under aggregate review)
United States v. Bay, 820 F.2d 1511 (9th Cir. 1987) (evaluating sentences in the aggregate rather than count-by-count)
Alabama v. Smith, 490 U.S. 794 (1989) (limits to Pearce presumption; not triggered in every case where sentence increases on retrial)