This case requires us to consider the contours of the prohibition against vindictive sentences for a defendant who is resentenced after a successful appeal. Defendant was originally convicted of five crimes, including providing alcohol to a person under 21 years of age (Count 2). The trial court imposed a total term of 170 months’ imprisonment on the five convictions, with a term of 60 months’ probation on Count 2. After a successful appeal, defendant pleaded guilty to two crimes, including providing alcohol to a person under 21 years of age (Count 2). When resentencing defendant, the trial court imposed a total term of 87 months’ imprisonment on the two remaining convictions, with a term of 12 months’ imprisonment on Count 2.
Defendant now appeals the resulting judgment of conviction as to his resentencing, arguing that the imposition of a term of 12 months’ imprisonment on Count 2 denied him due process of law, in violation of his rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Specifically, defendant argues that the court’s resentencing on Count 2 violated the prohibition against presumptively vindictive sentences, as pronounced by the United States Supreme Court in North Carolina v. Pearce,
The facts in this case are undisputed. Based on defendant’s conduct with his 13-year-old stepdaughter, defendant was originally convicted of five crimes: two counts of sexual abuse in the first degree, ORS 163.427 (Counts 1 and 4); one count of providing alcohol to a person under 21 years of age, ORS 471.410(2) (Count 2); one count of attempted sodomy in the second degree, ORS 163.395 (Count 3); and one count of sexual harassment, ORS 166.065(4)(a) (Count 7). The trial court sentenced defendant as follows: 75 months’ imprisonment on Count 1; 60 months’ probation on Count 2; 20 months’ imprisonment on Count 3; 75 months’ imprisonment on Count 4; and 60 months’ probation on Count 7. The trial court ordered the probationary terms to be served concurrently and the prison terms to be served consecutively, for a total of 170 months in prison. Defendant appealed, and, based on evidentiary error, we reversed and remanded the case for further proceedings. See State v. Febuary,
On remand, defendant agreed to plead guilty to two of the charged crimes in exchange for the prosecutor’s agreement to dismiss three of the charged crimes. Pursuant to the resulting guilty plea, defendant was convicted of one count of sexual abuse in the first degree (Count 1) and one count of providing alcohol to a person under 21 years
The trial court sentenced defendant to 75 months’ imprisonment on Count 1 and 12 months’ imprisonment on Count 2, and ordered those terms to be served consecutively, for a total of 87 months in prison. The court explained that, when imposing defendant’s original sentence, the court could have sentenced defendant to jail time on Count 2, but “chose, with restraint, not to impose additional [jail] time then, because in the overall scheme, I thought the fourteen-plus years was sufficient punishment.” When deciding to impose additional jail time on Count 2 on remand, the court stated that it was “absolutely not [its] purpose” to punish defendant for appealing his original convictions. Indeed, after quoting extensively from Partain, the court stated:
“It’s a non-vindictive reason to say, when I’m dealing with these two convictions, when, when the Providing Alcohol to a Minor wasn’t just a matter of leaving a jug of whiskey on the coffee table for a child to use while they’re watching television, this is a guy who offers his sick stepdaughter, who’s home * * * from school sick, offers her vodka and wine, and then comes back later to touch her vagina.
“It is clearly * * * malicious. The provision of the alcohol to her. It was * * * with a very criminal intent. And that’s what makes it way more than simply allowing an underage person to consume alcohol. This was done to facilitate the commission of the Sex Abuse in the First Degree, and it should be separately punishable.”
In addition, the court stated:
“And what I’m saying today is if, if this were all there were, if, if I hadn’t done the first trial and if this came to me today for sentencing, would I give additional time for providing liquor to a stepdaughter when she’s home sick? With, with the purpose in mind in providing that, to make it easier for him to commit Sex Abuse in the First Degree a little while later in the same home while the mother’s gone and the sisters are gone? Absolutely.”
Defendant now appeals, renewing his argument that the trial court lacked authority to resentence him to a prison term of 12 months on Count 2. He contends that, because his new sentence on Count 2 — 12 months’ imprisonment — is more severe than the sentence that he originally received on Count 2 — 60 months’ probation — his new sentence on Count 2 is a presumptively vindictive sentence that was imposed in violation of his right to due process, under Pearce and Partain. Defendant acknowledges that the total sentence that he received after resentencing— 87 months — is shorter than the total sentence that he originally received — 170 months. However, defendant states, without development of any argument, that “the Partain rule should apply to the individual sentences imposed on each charge in a particular case.”
The state responds that the presumption of vindictiveness does not apply in this case, because defendant’s new total sentence, which is “about half as long” as his original total sentence, is “less severe than the original total sentence.” Thus, according to the state, “[i]n the absence of evidence of actual vindictiveness, defendant’s argument * * * fails.”
The Due Process Clause provides that “[n]o state shall * * * deprive any person of life, liberty, or property without due process of law.” “Due process of law * * * requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” Pearce,
To protect against vindictiveness and the apprehension of vindictiveness in resentencing, the United States Supreme Court announced, in Pearce, the following rule:
“In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.”
Id. at 726. That “rule has been read to ‘[apply] a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.’” Wasman v. United States,
In Partain, the Oregon Supreme Court held that the Pearce presumption of vindictiveness, as modified by the United States Supreme Court, is the appropriate rule for resentencing. The court first noted that the Pearce “requirement that any conduct on the part of the defendant that a court relies on to justify a longer sentence must have occurred ‘after the time of the original sentencing proceeding’ is no longer applicable.” Partain,
“If an Oregon trial judge believes that an offender whom the judge is about to resentence should receive a more severe sentence than the one originally imposed, the judge’s reasons must affirmatively appear on the record. Those reasons must be based on identified facts of which the first sentencing judge was unaware, and must be such as to satisfy a reviewing court that the length of the sentence imposed is not a product of vindictiveness toward the offender. Absent such facts and reasons, an unexplained or inadequately explained increased sentence will be presumed to be based on vindictive motives, and will be reversed.”
Id. at 25-26.
Although in Partain the Oregon Supreme Court adopted the Pearce presumption of vindictiveness, so modified, the court did not expressly clarify the precise standard for measuring whether a new sentence triggers the presumption of vindictiveness — an issue that, since the issuance of Pearce, “has been the subject of some confusion.” United States v. Campbell,
On the one hand, a minority of appellate courts interpreting Pearce have adopted the “remainder aggregate” (or “count by count”) approach. See United States v. Markus, 603 F2d 409, 413 (2d Cir 1979) (concluding that to compare severity of sentences, “the proper procedure is first to disregard the sentence originally imposed [on the dismissed count] and then compare the total remaining sentence imposed [on the remaining counts] with the petitioner’s present position”); United States v. Monaco, 702 F2d 860, 885 (11th Cir 1983) (“To calculate and compare aggregate sentences where the first sentence is vacated and the defendant is retried, reconvicted and resentenced, we follow the Second Circuit’s approach in United States v. Markus[.]”). Under that approach, those courts “compare the defendant’s new sentence to
On the other hand, a majority of appellate courts interpreting Pearce have adopted the aggregate approach. See, e.g., Campbell,
To determine which approach is to be applied by Oregon courts, we return to Partain for guidance. In Partain, the Oregon Supreme Court considered the propriety of a 600-month prison sentence imposed on the defendant in a sex abuse case, after this court had vacated the 420-month sentence that the trial court originally had imposed.
“In 2003, defendant was convicted of multiple sex crimes — 12 in all — in a single proceeding. At sentencing, the trial court imposed various sentences and ordered that certain of the sentences be served consecutively to others. Altogether, the sentences required defendant to serve 420 months in prison. The judgment stated, with respect to each sentence, that defendant would not be eligible for any sentence reduction program.
“Defendant appealed, arguing (1) that the trial court had erred in requiring that defendant serve the sentences imposed on four of the convictions consecutively to certain other sentences, and (2) that, with respect to the same four sentences, the trial court had erred in denying defendant eligibility for sentence reduction programs without making certain findings in open court that, under ORS 137.750, are required when sentences are so limited. At some point in the appeal, the state conceded error with respect to defendant’s second argument, and joined with defendant in a motion to vacate the erroneous sentences and to remand the entire casefor resentencing. The Court of Appeals granted the motion.
“On remand, no new evidence or information was placed on the record. In entering its sentence on remand, the trial court discharged the four sentences that had been the focus of defendant’s appeal, but structured the remaining sentences in a way that resulted in an overall term of 600 months in prison. The court did not state any reasons for imposing the lengthier overall sentence.”
Id. at 12-13.
After holding that a modified version of the Pearce presumption of vindictiveness is the appropriate rule for resentencing, the Oregon Supreme Court remanded the case to the trial court so that the trial court could have an opportunity to clarify the record. Id. at 26. In so doing, the Oregon Supreme Court stated:
“On remand, the trial court may choose to impose a sentence that does not exceed the original total sentence of 420 months, which would not require a statement of the court’s reasons for imposing the sentence. If the court chooses, instead, to impose a longer or otherwise more severe total sentence, it must place on the record one or more nonvindictive reasons for doing so.”
Id.
Based on our review of Partain, we conclude that the standard for measuring whether a new sentence triggers the presumption of vindictiveness is the aggregate approach; under that approach, the presumption of vindictiveness applies only when a trial court resentences a defendant to a longer or otherwise more severe total sentence. We first note that, when setting forth the procedural facts in Partain, the Oregon Supreme Court stated that the “defendant was convicted of multiple sex crimes — 12 in all — in a single proceeding”; that the trial court had “imposed various sentences and ordered that certain of the sentences be served consecutively to others”; and that, “[altogether, the sentences required defendant to serve 420 months in prison.” Id. at 12. When setting forth information about the defendant’s new sentence, the Oregon Supreme Court stated that the trial court had “structured the remaining sentences in a way that resulted in an overall term of 600 months in prison.” Id. at 13. Thus, it appears that the Oregon Supreme Court, in Partain, was not considering the length or nature of the individual sentences that had been imposed by the trial court after each sentencing proceeding, but only the length of the total sentences that had been imposed.
We also note that, when instructing the trial court on how to proceed on remand, the Oregon Supreme Court gave the trial court two distinct choices. On the one hand, the trial court could choose “to impose a sentence that does not exceed the original total sentence of420 months” without supplying its reasons for imposing the sentence. Id. at 26 (emphasis added). On the other hand, the trial court could choose “to impose a longer or otherwise more severe total sentence” and to supply “one or more nonvindictive reasons for doing so.” Id. (emphasis added). That language strongly suggests that the Oregon Supreme Court, in Partain, intended the presumption of vindictiveness to apply only in a case where the trial court resentenced the defendant to a longer or otherwise more severe total sentence.
In so concluding, we note that the aggregate approach supports “the need for flexibility and discretion in the sentencing process [,]” Chaffin v. Stynchcombe,
“[W]hen a defendant is found guilty on a multicount indictment, there is a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an overall plan. When the conviction on one or more of the component counts is vacated, common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan, and to reconstruct the sentencing architecture upon remand,within applicable constitutional and statutory limits, if that appears necessary in order to ensure that the punishment still fits both crime and criminal.”
Pimienta-Redondo, 874 F2d at 14.
We also note that the application of the aggregate approach should not discourage defendants from appealing their convictions or their sentences. The presumption of vindictiveness is a prophylactic rule that is at least partially intended to ensure that defendants are not unconstitutionally deterred from exercising their rights to appeal — that is, as the United States Supreme Court has explained, the rule was partially based on the concern that “the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction[.]” Pearce,
We further note that our decision to apply the aggregate approach is consistent with the majority of courts from other jurisdictions that have considered the issue. See Adams v. State, 287 Ga 513, 517,
In addition, we note that the United States Court of Appeals for the Fifth Circuit has considered a case that serves as an instructive example for this case because the issue in that case is strikingly similar to the one now before us — whether the district court had imposed an improperly vindictive sentence when resentencing the defendant to a term of imprisonment for a particular charged crime, when the defendant had originally been sentenced to probation for that crime. Campbell,
“ [W]here the presumption [of vindictiveness] does not apply, the defendant must affirmatively prove actual vindictiveness.” Wasman,
Affirmed.
Notes
We also note that our conclusion generally aligns with subsequent decisions of the United States Supreme Court that have limited the application of the Pearce presumption of vindictiveness. The Court has stated that, “[w]hile the Pearce opinion appeared on its face to announce a rule of sweeping dimension, our subsequent cases have made clear that its presumption of vindictiveness ‘do[es] not apply in every case where a convicted defendant receives a higher sentence on retrial.’” Alabama v. Smith,