State v. Sierra, 361 Or. 723

Background

Defendant (Sierra) was convicted by a jury of nine offenses (including kidnapping and five UUW counts) and originally sentenced to a total of 250 months.
This court reversed two second-degree kidnapping convictions and remanded for resentencing of the remaining convictions.
On remand a different judge conducted resentencing; the state obtained jury findings on enhancement factors for first-degree kidnapping and sought upward durational departure plus longer UUW sentences, producing a new total of 276 months.
Defendant objected: (1) under the common-law rule of State v. Smith and the Double Jeopardy Clause, the court could not impose new sentences on UUW counts that had been fully served; and (2) under North Carolina v. Pearce and State v. Partain, a more severe sentence on remand required a presumption against vindictiveness and thus reversal unless the record showed nonvindictive reasons.
The trial court overruled objections, imposed the increased sentence, and the Court of Appeals affirmed. The Oregon Supreme Court granted review.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Sierra)	Held
Whether ORS 138.222(5)(b) permits resentencing on counts whose original sentences were served (Smith common-law rule)	ORS 138.222(5)(b) (and prior subsection (5)(a)) authorizes remand and permits the trial court to impose new sentences on any convictions remaining on remand	Smith’s common-law rule prohibits modifying sentences that have been served; thus UUW sentences cannot be changed	Held: ORS 138.222(5)(b) authorizes resentencing on all affirmed counts in this context; Smith does not bar resentencing here
Whether the federal Double Jeopardy Clause bars resentencing on counts already served	Remand authority allows reassembly of a "package" sentence; no double jeopardy violation where total sentence may be reconfigured	Increasing sentences already served violates legitimate expectation of finality and thus double jeopardy	Held: No double jeopardy bar; package-sentence reasoning and legislative remand authority prevent a double jeopardy violation in these circumstances
Whether Pearce/Partain presumption of vindictiveness applies when a different judge resentences	Pearce/Partain apply, but post-Pearce Supreme Court cases allow consideration of context; a different judge reduces but does not eliminate vindictiveness concerns	A different judge does not remove reasonable likelihood of vindictiveness; presumption should still apply	Held: Pearce/Partain’s requirement that reasons appear on the record remains; but when a different judge resentences, the presumption need not automatically apply if the second judge gives an on‑the‑record, wholly logical, nonvindictive reason
Whether the reasons given here satisfied Pearce/Partain	State: jury-found enhancement factors and other information unavailable to the original court are wholly logical, nonvindictive reasons for increased sentence	Sierra: increased total sentence presumed vindictive because remand judge was not the original judge and sentences on some counts had been served	Held: The record includes jury-found enhancement factors and other new information; those are wholly logical, nonvindictive reasons, so Pearce/Partain requirements are satisfied and the increased sentence is permitted

Key Cases Cited

State v. Smith, 323 Or. 450 (Oreg. 1996) (recognized common-law rule barring modification of a served sentence)
North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969) (due process prohibits vindictive resentencing; reasons for increased sentence must appear and be based on post‑sentencing conduct)
State v. Partain, 349 Or. 10 (Oreg. 2010) (Oregon adopts Pearce prophylaxis; judge must place nonvindictive reasons on the record when increasing sentence on remand)
Chaffin v. Stynchcombe, 412 U.S. 17 (U.S. 1973) (explains Pearce’s prophylactic rules and circumstances where they do not apply)
McCullough v. Texas, 475 U.S. 134 (U.S. 1986) (Pearce rules permit relief where judge provides an on‑the‑record, wholly logical, nonvindictive reason)
Wasman v. United States, 468 U.S. 559 (U.S. 1984) (Pearce permits justifications for increased sentences beyond post‑sentencing conduct alone)