The defendant, Scott Abram, appeals the sentence imposed by the Trial Court
(McGuire,
J.) upon remand from our decision in
State v. Abram,
The relevant facts are not in dispute. In 2004, the defendant was convicted by a jury of twenty-one counts of aggravated felonious sexual assault, RSA 632-A:2 (2007), four counts of endangering the welfare of a child, RSA 639:3 (2007), and one count of indecent exposure and lewdness, RSA 645:1 (2007).
On June 25, 2004, the trial court sentenced the defendant to an aggregate fifty to one hundred years in the state prison. This cumulative sentence consisted of: (1) concurrent ten to twenty-year terms for three convictions (indictment nos. 03-S-149 through 03-S-151), which were to run consecutive to; (2) concurrent ten to twenty-year terms for three convictions (indictment nos. 03-S-1079, 04-S-322 and 04-S-323), which were to run consecutive to; (3) concurrent ten to twenty-year terms for three convictions (indictment nos. 03-S-143, 03-S-144 and 03-S-146), which were to run consecutive to; (4) concurrent ten to twenty-year terms for three convictions (indictment nos. 03-S-140 through 03-S-142), which were to run consecutive to; (5) concurrent ten to twenty-year terms for nine convictions (indictment nos. 03-S-135 through 03-S-137 and 03-S-1070 through 03-S-1075). For the remaining convictions, the defendant was sentenced as follows: (1) concurrent three-and-a-half to seven-year terms for indictments numbered 03-S-1080, 03-S-1081, 03-S-1082 and 04-S-324, to be served concurrently with the sentences imposed for indictments 03-S-135 through 03-S-137; and (2) twelve months for indictment number 03-S-1076, also to be served concurrently with the sentences imposed for indictments 03-S-135 through 03-S-137.
Following sentencing, the defendant appealed his convictions to this court, arguing that the charges against him should have been severed under
State v. Ramos,
Our reversal of nine of the twenty-one convictions caused a break in the sequences of sentences imposed by the trial court. Specifically, because all of the convictions underlying one of the ten to twenty-year sentences (indictment nos. 03-S-140 through 03-S-142) had been reversed, another ten to twenty-year sentence (indictment nos. 03-S-143, 03-S-144 and 03-S-146) was consecutive to a non-existent term. In addition, all of the convictions underlying another of the ten to twenty-year sentences (indictment nos. 03-S-149 through 03-S-151) were reversed. Both parties therefore agreed, upon remand, that some resentencing was required to alleviate this defect.
The State, however, requested that the trial court go further and restructure its sentence on the affirmed charges so that the defendant would “remain imprisoned for the same period of time as originally sentenced, a minimum of [fifty] years.” The defendant argued, in contrast, that the trial court could amend the sentence solely to remedy the gap in sentencing noted above, but was not otherwise permitted to resentence him on the affirmed convictions. If the court had amended the sentence as the defendant requested, the resulting term of incarceration would have been thirty to sixty years.
On December 18, 2006, the trial court effectively reinstated its original fifty to one hundred-year sentence. It did so by dividing the convictions tied to one ten to twenty-year term (indictment nos. 03-S-135, 03-S-136, OSS-137, 03-S-1071, 03-S-1072 and 03-S-1073) into two ten to twenty-year terms and making those terms consecutive, and dividing the convictions tied to another ten to twenty-year term (indictment nos. 03-S-143, 03-S-144 and 03-S-146) into two ten to twenty-year terms and making those terms consecutive. In support of its decision to impose the same period of incarceration as was imposed prior to the defendant’s successful appeal, the trial court stated as follows:
[T]his abuse had been ongoing for two years. The acts that occurred that were reversed, those convictions occurred within two months of all of the other convictions, so that it would not have mattered in my sentencing. My view is the same, that [the defendant] is [a] very dangerous person, that he committed heinous acts against these children over a long period of time, and that he’s very dangerous to the community regardless of *650 those other nonconvictions [sic]. So for those reasons I want him to spend the same amount of time in prison.
On appeal, the defendant argues that the court erred for two reasons: First, he contends that the trial court, in resentencing him on the affirmed convictions, went beyond the scope of the mandate in Abram. Second, he argues that the trial court’s conduct infringed upon his due process rights under both Part I, Article 15 of the New Hampshire Constitution, and the Fifth and Fourteenth Amendments to the United States Constitution. We address each argument in turn.
I. Scope of the Mandate
The defendant contends that, because Abram did not address any issues concerning his sentence, the trial court was without authority to restructure his sentence on the affirmed charges upon remand. Instead, the defendant asserts our mandate limited the trial court’s authority to ordering a retrial on the charges reversed in Abram. We disagree.
As a general proposition, a trial court is bound by the mandate of an appellate court on remand.
Johnson v. Johnson,
However, in ascertaining what the mandate commands, the “[trial] court need not read the mandate in a vacuum, but rather has the opinion of the appellate court to aid it____In this way, the [trial] court may examine the rationale of an appellate opinion in order to discern the meaning of language in the court’s mandate.” 5 Am. Jur. 2d
supra
§ 731. Indeed, it is necessary that “[proceedings in the trial court on remand____[are] in accordance with both the mandate of the appellate court and the result contemplated in the appellate opinion.”
Id.; see Scarborough v. R.T.P. Enterprises, Inc.,
For that reason, the issue presented is more properly framed as whether our opinion in
Abram,
read
in toto,
divested the trial court of
*651
authority to resentence the defendant on the affirmed charges. We do not believe that it did.
Abram,
reversed the enumerated convictions and affirmed the remaining ones.
Abram,
In arguing that the trial court was nevertheless in error because resentencing “was simply not authorized by the mandate,” the defendant fails to appreciate the breadth of the trial court’s discretion. Generally, a trial court is free upon remand to “take such action as law and justice may require under the circumstances as long as it is not inconsistent with the mandate and judgment of the appellate court.” 5 C.J.S. supra § 1136. We therefore reject the defendant’s implicit argument that trial courts are only permitted to engage in acts expressly authorized by the mandate. “Flexibility is necessary for trial courts, when reviewing decisions on remand, as appellate judgments are not self-executing.” Id. § 1130. Thus, because our opinion in Abram, neither expressly nor implicitly barred the trial court from resentencing the defendant on the affirmed charges, we reject the defendant’s argument that the trial court went beyond the scope of the mandate.
II. Due Process
The defendant argues next that, in resentencing on the affirmed charges, the trial court violated his due process rights under Part I, Article 15 of the New Hampshire Constitution, and the Fifth and Fourteenth Amendments to the United States Constitution, in two distinct ways. First, he contends that the trial court’s second sentence is effectively more severe than the first and, thus, is presumptively vindictive.
See State v. Goding,
In analyzing the defendant’s due process claims, we look first to the New Hampshire Constitution,
State v. Marti,
*652
We turn to the defendant’s first contention. As this court has often stated, “a person convicted of an offense is entitled to pursue his statutory right to a[n appeal] without apprehension that the State will retaliate by ... attempting to impose a heavier penalty for the same acts originally charged.”
State v. Koski,
This presumption of vindictiveness does not arise in “every case where a convicted defendant receives a higher sentence on retrial.”
State v. Hurlburt,
But where, as here, the defendant’s sentence has been increased upon remand by the same sentencing judge, there is greater potential for vindictiveness. In such cases, “the sentencing judge who presides at both trials can be expected to operate in the context of roughly the same sentencing considerations after the second trial as he does after the first.”
Alabama v. Smith,
[w]hen a defendant receives a more severe sentence from the same sentencing judge on retrial after appeal, judicial vindictiveness is presumed unless the judge states the reasons for the increased sentence on the record, and those reasons are based on objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing procedure.
Goding,
*653
Initially then, we must determine whether the trial court’s modification of the sentencing terms resulted in a harsher sentence for the defendant.
Id.
The State asserts that the second sentence is not more severe because the period of incarceration imposed following appeal is the same as the period imposed following trial. However, “[i]n determining whether the second sentence is harsher than the first, we look not at the technical length of the sentence but at its overall impact on [the defendant].”
United States v. Williams,
Having determined that the second sentence is more severe than the first, we turn next to the rationale proffered by the trial court in support of its sentence.
See Williams,
The State’s brief fails to point to any new evidence that came to light subsequent to imposition of the first sentence and which justifies the
*654
increase in the defendant’s sentence. Instead, the State urges us to adopt the “sentencing package” doctrine which has been applied in similar situations by some federal courts.
See, e.g., United States v. Shue,
Although we have never considered this issue, the only other states which have been urged to adopt the federal “sentencing package” doctrine have declined to do so.
See Wilson v. State,
The Nevada Supreme Court declined the State’s invitation and reversed. Id. at 977-80. The court reasoned that the sentencing package doctrine is “uniquely adapted to federal sentencing law” for several reasons, the principal one being that:
the doctrine appears to have complemented the determinate sentencing goals of the Federal Sentencing Guidelines’ previously mandatory regime. Under that regime, a sentencing *655 “package” was partly predicated on a base offense level, which determined the applicable Guidelines range. Thus, partially overturning a conviction on appeal risked unraveling the computations underlying the base offense level and, in effect, “unbundling” the sentencing package. In such a case, the resentencing court was required to recompute the base offense level in light of the remaining counts and revise the entire sentencing package accordingly.
Id. at 979 (citations omitted). Because, in part, “the State fail[ed] to argue that ... sentencing in Nevada ha[d] somehow reached extremes of complexity analogous to federal sentencing law,” the court held that the predicates for adopting the sentencing package doctrine did not exist in that state. Id. at 980.
Similarly, in
Saxon,
the Ohio Supreme Court accepted jurisdiction to determine, in effect, whether the sentencing package doctrine applied in Ohio.
Saxon,
We agree with
Wilson
that the sentencing package doctrine is uniquely adapted to federal sentencing law.
Wilson,
But we also believe that, in addition to the concerns espoused by the courts in
Wilson
and
Saxon,
public policy considerations militate against adopting the sentencing package doctrine in this State. The doctrine promotes a blanket rule that affords trial courts the discretion to resentence all defendants who happen to have multicount convictions, regardless of whether the individual charges are actually interrelated. There is a risk, therefore, that the doctrine could permit vindictively-motivated sentences under the guise of procedural necessity. Such discretion could chill defendants in exercising their right to appeal and prevent meritorious claims from being litigated. Because we believe such a
*656
chilling effect is precisely the harm that
Pearce
and its progeny sought to prevent,
see Pearce,
Sentence vacated and remanded.