State v. Sierra

No. 41 August 10, 2017 723

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

JOAQUIN SIERRA,

Petitioner on Review.

(CC 05C40355; CA A153534; SC S064237)

On review from the Court of Appeals.*

Argued and submitted May 8, 2017.

David O. Ferry, Deputy Public Defender, Salem, argued

the cause and filed the briefs for petitioner on review. Also

on the briefs was Ernest G. Lannet, Chief Defender, Office

of Public Defense Services.

Timothy A Sylwester, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent on review.

Also on the brief were Frederick M. Boss, Deputy Attorney

General, and Benjamin Gutman, Solicitor General.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, and Nakamoto, Justices, and Baldwin, Senior

Justice pro tempore.**

WALTERS, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

______________

**  On appeal from Marion County Circuit Court, Susan M. Tripp, Judge. 278

Or App 96, 374 P3d 952 (2016)

**  Brewer, J., retired June 30, 2017, and did not participate in the decision

of this case. Flynn and Duncan, JJ., did not participate in the consideration or

decision of this case.

724 State v. Sierra

Case Summary: Defendant was convicted of nine offenses and sentenced to

250 months in prison. On review, this court reversed two of defendant’s convic-

tions and remanded the case to the trial court for resentencing. State v. Sierra,

349 Or 506, 254 P3d 149 (2010), adh’d to as modified, 349 Or 604, 247 P3d 759

(2011). On remand, before a different judge, the state sought upward departure

sentences based on enhancement factors found by the jury. The second sentenc-

ing court imposed a total sentence of 276 months—an increase of 26 months over

the original sentence. Defendant appealed, arguing that (1) the Smith rule and

the Double Jeopardy Clause of the federal constitution prevented the sentencing

court from applying ORS 138.222(5)(b) and imposing new sentences on defen-

dant’s UUW convictions because defendant had served the original sentences

on those counts; and (2) under Pearce and Partain, the Court of Appeals was

required to presume that the second sentencing judge had acted vindictively and

that due process therefore precluded imposition of a more severe sentence. The

Court of Appeals affirmed the judgment of the trial court, and defendant peti-

tioned for review by this court. In a unanimous opinion, the Supreme Court held

that (1) the common-law rule of State v. Smith, 323 Or 450, 918 P2d 824 (1996),

and the Double Jeopardy Clause of the United States Constitution did not pre-

vent the trial court from resentencing defendant on all of the convictions that

remained on remand, pursuant to ORS 138.222(5)(b); and (2) when a different

judge resentences a defendant on remand and the sentence is more severe than

the sentence originally imposed, the Supreme Court’s decision in North Carolina

v. Pearce, 395 US 11 711, 89 S Ct 2072, 23 L Ed 2d 656 (1969), and this court’s

decision in State v. Partain, 349 Or 12 10, 239 P3d 232 (2010), require that the

second sentencing court articulate the reasons for the increased sentence on the

record, and that those reasons be “wholly logical” and “nonvindictive.”

The Court affirmed the decision of the Court of Appeals and the judgment of

the circuit court.

Cite as 361 Or 723 (2017) 725

WALTERS, J.

This court reversed two of defendant’s nine con-

victions and remanded the case for resentencing on the

remaining convictions. State v. Sierra, 349 Or 506, 254 P3d

149 (2010), modified and adh’d to on recons, 349 Or 604, 247

P3d 759 (2011). On remand, a different judge, who did not

preside over defendant’s original trial, imposed a longer

total sentence than had the original trial court. This case

requires us to decide two issues: first, whether Oregon com-

mon law or the federal Double Jeopardy Clause precludes

the second sentencing court from imposing new sentences

on defendant’s convictions for unlawful use of a weapon

(UUW) because defendant already had served the previously

imposed sentences; and second, whether the Due Process

Clause, as interpreted by the United States Supreme Court

in North Carolina v. Pearce, 395 US 711, 89 S Ct 2072, 23

L Ed 2d 656 (1969), and by this court in State v. Partain,

349 Or 10, 239 P3d 232 (2010), precludes the imposition of a

more severe sentence than originally imposed. The answer

to both questions is no. We affirm the decisions of the trial

court and the Court of Appeals, State v. Sierra, 278 Or App

96, 374 P3d 952 (2016).

I. BACKGROUND

A jury convicted defendant of nine offenses: one

count of first-degree kidnapping; two counts of second-

degree kidnapping; one count of fourth-degree assault; and

five counts of unlawful use of a weapon (UUW). The state

did not allege enhancement factors. The trial court sen-

tenced defendant to a total of 250 months in prison. The

court imposed a 110-month sentence on the conviction for

first-degree kidnapping, two consecutive 70-month sen-

tences on the convictions for second-degree kidnapping, and

concurrent sentences of 14 months or less on the remaining

convictions (including all of defendant’s UUW convictions).

On review, this court concluded that the evidence did not

support the convictions for two counts of second-degree kid-

napping because the state had failed to prove the act ele-

ment. Sierra, 349 Or at 518. The court reversed defendant’s

convictions on those counts and remanded the case to the

726 State v. Sierra

trial court for resentencing. Sierra, 349 Or at 607 (modified

and adh’d to on recons).

On remand, before a different judge, the state

sought an upward departure sentence on defendant’s convic-

tion for first-degree kidnapping, as well as longer sentences

than originally imposed on the other convictions. On the

kidnapping conviction, the state alleged, and the sentencing

jury found, four enhancement factors—the use of a weapon;

threat of or actual violence towards a witness; prior sanc-

tions should have deterred defendant’s criminal conduct

and did not; and incarceration is necessary for public safety.

Based on the jury’s findings, the state sought, by upward

departure, a sentence of 220 months on that count—an

increase of 110 months over defendant’s original sentence.

The state also asked the court to place four of defendant’s

UUW convictions (counts 5, 7, 10, and 11) into gridblock 6-D

and impose the 14-month presumptive sentence on each and

to require defendant to serve those four sentences consecu-

tively to each other and to the 220-month sentence imposed

on the kidnapping conviction, for a total sentence of 276

months.

Defendant objected under Partain, arguing that

the imposition of a longer total sentence would be presumed

vindictive because the second sentencing court would not

be basing its sentence on information unknown to the first

court at the time of the original sentencing. Defendant also

contended that the common-law rule of State v. Smith, 323

Or 450, 918 P2d 824 (1996), prevented the sentencing court

from imposing new sentences on any of the UUW convictions

because defendant had fully served the sentences originally

imposed on those counts. Finally, defendant argued that

revisiting a completely served sentence would deny him due

process and the swift and complete administration of jus-

tice, under Article I, section 10, of the Oregon Constitution.1

The sentencing court overruled defendant’s objec-

tions and imposed the sentence requested by the state. The

1

Defendant also objected to the enhancement factors on the ground that

allowing the state to rely on enhancement factors that it had withdrawn when

defendant was initially sentenced had the effect of denying him due process and

equal protection of law. That issue is not before this court on review.

Cite as 361 Or 723 (2017) 727

court explained that defendant’s sentence complied with

the Partain requirements because the court had based the

increased sentence on information not available to the first

court: the apparent continued impact of the crimes on the

victims and defendant’s prison disciplinary record. The

court also explained that it was imposing an upward dura-

tional departure sentence on the first-degree kidnapping

conviction based on the enhancement factors found by the

jury, and that the sentences requested by the state on the

UUW convictions were appropriate under the sentencing

guidelines.

Defendant appealed to the Court of Appeals, argu-

ing that (1) the Smith rule and the Double Jeopardy Clause

of the federal constitution prevented the sentencing court

from applying ORS 138.222(5)(b) and imposing new sen-

tences on any of the UUW convictions; and (2) under Pearce

and Partain, the Court of Appeals was required to presume

that the judge on remand had acted vindictively and that due

process precluded imposition of a more severe sentence. The

Court of Appeals rejected defendant’s arguments, holding

that the Smith rule did not bar the trial court from applying

ORS 138.222(5)(b) and modifying defendant’s UUW sen-

tences on remand and that the trial court had satisfied the

Pearce/Partain requirements. Sierra, 278 Or at 100-105. The

court also held that defendant’s double jeopardy argument

was not preserved and did not warrant plain error review.

Id. at 98.2

Defendant petitioned for review in this court, renew-

ing the arguments presented before the Court of Appeals.

We allowed defendant’s petition.

2

Defendant also argued before the Court of Appeals, and argues again on

review, that the second sentencing court violated due process and the Ex Post

Facto Clause of Article I, section 21, of the Oregon Constitution by applying the

Partain rule to his case. According to defendant, the rule abrogated by Partain—

the rule of State v. Turner, 247 Or 301, 429 P2d 565 (1967)—should apply to his

case because he originally appealed his kidnapping convictions in 2006, and the

Partain rule was announced by this court in 2009. Defendant conceded before

the Court of Appeals that he had not preserved an objection under the Ex Post

Facto Clause, and that court rejected defendant’s argument without discussion.

We also reject that argument as unpreserved and decline to exercise our discre-

tion to review it as plain error. See Ailes v. Portland Meadows, Inc., 312 Or 376,

381-82, 823 P2d 956 (1991) (explaining requirements for plain error review and

appellate court’s discretion to consider plain error).

728 State v. Sierra

II. ANALYSIS

A.  Defendant’s Objections to Increases in His Sentence

Based on Crimes of UUW

1.  Defendant’s common-law argument

We turn, first, to defendant’s common-law argu-

ment, because our ordinary practice is to analyze state

law claims before reaching a party’s federal constitutional

claims. Sterling v. Cupp, 290 Or 611, 614, 625 P2d 123

(1981). Defendant contends that the common-law Smith

rule, which prohibits a sentencing court from modifying

a sentence that has been served, precluded the trial court

from imposing a new sentence on defendant’s UUW convic-

tions. The state responds that the legislature partially over-

ruled Smith when it enacted what is now codified as ORS

138.222(5)(b). That statute provides that, when an appel-

late court reverses the judgment of conviction on any count

in a multi-count case in which at least one count is a fel-

ony, “the appellate court shall remand the case to the trial

court for resentencing on the affirmed count or counts.” ORS

138.222(5)(b) (emphasis added). According to the state, in

the limited circumstance in which a court reverses one or

more convictions and affirms the other convictions, and the

court does not otherwise rule that any of the sentences were

imposed in error, ORS 138.222(5)(b) has supplanted Smith

to require that the court remand the case for resentencing

on all remaining counts.

In Smith, the defendant was convicted of numerous

felony and misdemeanor offenses and received a sentence of

consecutive and concurrent sentences totaling 120 months.

323 Or at 452. After the Court of Appeals affirmed the

defendant’s convictions but reversed the sentences on some

convictions, State v. Smith, 116 Or App 558, 563, 842 P2d

805 (1992), adh’d to on recons, 120 Or App 438, 852 P2d

934 (1993), the defendant was resentenced to 102 months in

prison. Smith, 323 Or at 452. The defendant then appealed

from the amended judgment, arguing that the sentencing

court had erred when it imposed new consecutive sentences

on some of his misdemeanor convictions because he already

had served the original sentences on those convictions at

the time of the resentencing. Id. at 452-53. On review, this

Cite as 361 Or 723 (2017) 729

court recognized the common-law rule that “a sentencing

court lacks the authority to modify a valid sentence once the

original sentence has been executed” and determined that

the same result follows “when the original sentence not only

has been executed, but also has been served.” Id. at 453-54.

Defendant and the state agree that, in response

to the Court of Appeals decision in Smith, the legislature

amended ORS 138.222(5)(a), which governs the scope

of review of sentences imposed on felony convictions, to

expressly authorize a remand for resentencing of the entire

case when an appellate court determines that there has

been a sentencing error. The amended provision provides,

“The appellate court may reverse or affirm the sen-

tence. If the appellate court concludes that the trial court’s

factual findings are not supported by evidence in the record

or do not establish substantial and compelling reasons for

a departure, it shall remand the case to the trial court for

resentencing. If the appellate court determines that the sen-

tencing court, in imposing a sentence in the case, committed

an error that requires resentencing, the appellate court shall

remand the entire case for resentencing. The sentencing

court may impose a new sentence for any conviction in the

remanded case.”

ORS 138.222(5)(a); Or Laws 1993, ch 692, § 1 (added lan-

guage italicized). As this court recognized in Partain, that

amendment “unambiguously provides that, when a case is

remanded because of a particular sentencing error, the sen-

tencing court may impose different sentences on any and all

counts—even those not affected by the identified error.” 349

Or at 19.

In 2005, the legislature enacted ORS 138.222(5)(b).

Or Laws 2005, ch 563, § 2. That provision applies when an

appellate court reverses the judgment of conviction on any

count in a multi-count case, where at least one count is a

felony. ORS 138.222(5)(b) provides,

“If the appellate court, in a case involving multiple

counts of which at least one is a felony, reverses the judg-

ment of conviction on any count and affirms other counts,

the appellate court shall remand the case to the trial court

for resentencing on the affirmed count or counts.”

(Emphasis added.)

730 State v. Sierra

Defendant makes two arguments in support of his

position that the Smith common-law rule nevertheless gov-

erns in this case. We find neither persuasive. First, defen-

dant contends that neither ORS 138.222(5)(a) nor ORS

138.222(5)(b) abrogated the Smith rule because, when this

court decided Smith in 1996, the legislature already had

enacted the current version of ORS 138.222(5)(a), and, by

applying the common-law rule, the court impliedly acknowl-

edged its continuing vitality. Defendant cites Fulmer v.

Timber Inn Restaurant and Lounge, Inc., 330 Or 413, 424, 9

P3d 710 (2000), for the proposition that “[a]lthough the leg-

islature may abrogate rules of the common law by statute,”

it cannot be considered to have done so when the court recog-

nizes the common-law claim after the enactment of the legis-

lation in question. Because this court’s decision in Smith was

issued after the amendment to ORS 138.222(5)(a) became

effective, defendant argues that this court implicitly held, in

Smith, that that statute did not abrogate the common-law

rule. And, according to defendant, ORS 138.222(5)(b) should

not be construed more broadly than ORS 138.222(5)(a)

because ORS 138.222(5)(b) does not explicitly abrogate the

common-law rule.

The state responds that defendant misunderstands

the law that applied when this court decided Smith. The

current version of ORS 138.222(5)(a) did not become effec-

tive until after the Court of Appeals issued its opinion in

Smith. This court reviewed the Court of Appeals decision,

not the amended statute that was enacted after that deci-

sion. We agree with the state that the timing of this court’s

decision in Smith does not give rise to an inference that the

question presented here was answered there.

Next, defendant argues that the Smith rule and

ORS 138.222(5)(b) are not in conflict. Defendant contends

that, when the legislature enacted that provision, it would

have understood that a served sentence could not be resen-

tenced, and that the legislature used the phrase “affirmed

count or counts” because there is no reason to “affirm” a con-

viction for which the sentence has been fully served and that

is not challenged on appeal. According to defendant, even if

the last sentence of ORS 138.222(5)(a)—“[t]he sentencing

Cite as 361 Or 723 (2017) 731

court may impose a new sentence for any conviction in the

remanded case”—abrogated the Smith rule, the last clause

of ORS 138.222(5)(b)—“the appellate court shall remand

the case to the trial court for resentencing on the affirmed

count or counts”—has a substantially different, and nar-

rower, meaning. The state disagrees, arguing that the per-

tinent language in subsections (5)(a) and (5)(b) is substan-

tively the same.

In interpreting a statute, this court looks, first, at

the text and context of the statute. State v. Gaines, 346 Or

160, 164, 206 P3d 1042 (2009). Defendant’s textual argu-

ment rides on the meaning of the word “affirmed” in ORS

138.222(5)(b). According to Black’s Law Dictionary, to affirm

is to “confirm, ratify, or approve (a lower court’s judgment) on

appeal.” Black’s Law Dictionary 70 (10th ed 2014). There is

nothing in the definition of the word “affirm” that necessar-

ily limits its application as defendant contends. But, even if

defendant were correct that there is no reason for an appel-

late court to “affirm” a conviction when the sentence for the

crime has already been served, we doubt that the legislature

intended to preclude a trial court from resentencing on all

counts that were not reversed. First, as the state points out,

ORS 138.222(5)(a) permits the trial court to impose a new

sentence “for any conviction in the remanded case.” Second,

as we explained in Febuary v. State of Oregon, 361 Or 544,

562, 396 P3d 894 (2017), “trial courts may assemble sen-

tences on individual counts to form a ‘package’ sentence,”

“in which the length of component counts are set in order

to reach a desired total sentence.” Because Oregon law per-

mits trial courts to construct sentences in multi-count cases

as a “package,” we will not interpret ORS 138.222(5)(b) to

preclude trial courts from considering all unreversed con-

victions when formulating a new sentence on remand.

The legislative history of House Bill (HB) 2224

(2005), which was later codified as ORS 138.222(5)(b), is

consistent with that interpretation. Committee Counsel

Heidi Moawad testified that a recent Court of Appeals case

illustrated the reason for the proposed amendment. Audio

Recording, House Committee on Judiciary, Criminal Law

Subcommittee, HB 2224, Feb 1, 2005, at 8:48 (comments

732 State v. Sierra

of Heidi Moawad). In State v. Fry, 180 Or App 237, 246, 42

P3d 369 (2002), the Court of Appeals had reversed several

of the defendant’s convictions but had not remanded the

case for resentencing on the remaining convictions. Moawad

testified that, in that case, it would have been appropriate

to remand for resentencing on the remaining counts. Audio

Recording, House Committee on Judiciary, Criminal Law

Subcommittee, HB 2224, Feb 1, 2005, at 8:50 (comments

of Heidi Moawad). She explained that the proposed amend-

ment would permit appellate courts to order exactly that

and would prevent defendants from “getting a windfall”

based on the way a case was sentenced, for example, concur-

rently versus consecutively. Id. at 9:05. Assistant Attorney

General Jonathan Fussner also testified in support of the

bill, stating that the amendment was not about punishing

a defendant more harshly because he had appealed; rather,

the purpose was to allow courts to adjust the sentence on

the remaining counts to “get back [to] the sentence * * *

that originally was imposed and that the court believes

is the right sentence.” Id. at 12:50 (comments of Jonathan

Fussner). In response, a representative from the Oregon

Criminal Defense Lawyers Association argued that it would

not make sense for a defendant to be given the same sen-

tence on remand after successfully appealing one or more of

his convictions. Id. at 12:45 (comments of Kelly Skye). But,

at the very least, she asserted, the authority to resentence

on the remaining counts should be limited to counts arising

out of the same criminal episode as the reversed count or

counts. Id. at 28:53.

Thus, although witnesses disagreed about the scope

of the trial court’s authority on remand, their comments

reflect an understanding that trial judges have authority to

craft what amounts to a “package” sentence. See Febuary,

361 Or at 562 (explaining that “trial courts may assemble

sentences on individual counts to form a ‘package’ sentence”).

We conclude that, in enacting ORS 138.222(5)(b), the legis-

lature intended to permit judges to resentence defendants

on all of the convictions that remain on remand. 3

3

We decide that that authority exists in the factual context presented here—

where all of defendant’s crimes were committed in the same criminal episode.

We do not decide whether that authority would extend to other factual contexts

Cite as 361 Or 723 (2017) 733

2.  Defendant’s double jeopardy argument

For similar reasons, we also reject defendant’s argu-

ment that the federal Double Jeopardy Clause precludes

interpreting ORS 138.222(5)(b) to permit resentencing on

defendant’s UUW convictions. Assuming, without decid-

ing, that defendant preserved an objection based on double

jeopardy, defendant’s argument fails. The Double Jeopardy

Clause prohibits multiple punishments for the same offense.

United States v. DiFrancesco, 449 US 117, 127-28, 101 S Ct

426, 66 L Ed 2d 328 (1980). It protects against “additions to

a sentence in a subsequent proceeding that upset a defen-

dant’s legitimate expectation of finality.” Jones v. Thomas,

491 US 376, 385, 109 S Ct 2522, 105 L Ed 2d 322 (1989).

According to defendant, that expectation generally arises

after a sentence is complete. See United States v. Daddino, 5

F3d 262, 265 (7th Cir 1993) (defendant acquired a legitimate

expectation of finality because defendant had completed ser-

vice of his incarceration and paid all fines and restitution)

Defendant cites United States v. Arrellano-Rios, 799

F2d 520 (9th Cir 1986), in support of that contention. In

Arrellano-Rios, the defendant was convicted on three counts

and sentenced to concurrent, one-year sentences on the

first two and a consecutive, five-year sentence on the third

count. Id. at 522. On appeal, the court reversed the defen-

dant’s third conviction but declined to remand the case for

resentencing because it concluded that the defendant had

served the one-year sentences on the first two counts. Id. at

523. The court explained that “increasing a legal sentence

that already has been fully served would violate the Double

Jeopardy Clause.” Id. Because neither party had “challenged

the legality of [the defendant’s] sentence” on the first two

counts, the court concluded, he “never [had] any reason to

question that his sentences on those counts would be fully

served by incarceration for one year.” Id. at 524.

The state responds that the Ninth Circuit more

recently has held that its decision in Arrellano-Rios does

not apply to sentences that are imposed in multi-conviction

cases under the federal sentencing guidelines. United States

or whether other law would limit the exercise of that authority in those circum-

stances. Those arguments are not raised in this case.

734 State v. Sierra

v. Radmall, 340 F3d 798 (9th Cir 2003). In Radmall, the

court held that the defendant’s original sentence constituted

a single “package” that reflected “his overall offense conduct

rather than separate and independent sentences on each

court.” Id. at 801. Accordingly, the court explained, “when

[the defendant] appealed his conviction and sentence on

count I, he was prevented from gaining a legitimate expec-

tation of finality on his sentence for count II.” Id.

Defendant argues that Radmall is not relevant to

the facts of this case because Oregon’s sentencing system is

unlike the “unified term of imprisonment” system at issue

in that case. However, as we explained above, trial courts in

Oregon do have discretion to assemble package sentences.

Febuary, 361 Or at 562. Defendant does not convince us

that the Double Jeopardy Clause requires us to interpret

ORS 138.222(5)(b) to preclude resentencing on his UUW

convictions.

We conclude that ORS 138.222(5)(b) gave the sen-

tencing court in this case the authority to impose new sen-

tences on the counts that remained on remand, including

defendant’s UUW convictions.4

B.  Defendant’s Arguments under Pearce and Partain

We turn, next, to defendant’s arguments under

Pearce and Partain. In Pearce, the United States Supreme

Court held that due process 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.” 395 US at 725. And, “since the fear of such

vindictiveness may unconstitutionally deter a defendant’s

exercise of the right to appeal or collaterally attack his first

conviction, due process also requires that a defendant be

freed of apprehension of such a retaliatory motivation on

the part of the sentencing judge.” Id. In order to “assure the

absence of such a motivation,” the Court articulated the fol-

lowing two prophylactic rules:

4

The existence of that authority does not mean that its exercise is immune

from challenge. For instance, in a case in which a defendant seeks to prove that

a sentencing court acted vindictively, the fact that, at the time of resentencing, a

sentence attributable to a certain crime already has been served may be relevant.

Cite as 361 Or 723 (2017) 735

“[W]henever 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 identifi-

able 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 constitu-

tional legitimacy of the increased sentence may be fully

reviewed on appeal.”

Id. at 726.

In Partain, this court overruled its prior decision

in State v. Turner, 247 Or 301, 313, 429 P2d 565 (1967).

Partain, 349 Or at 23. In Turner, this court held that “[a]fter

an appeal or post-conviction proceeding has resulted in the

ordering of a retrial for errors other than an erroneous sen-

tence, * * * and the defendant has again been convicted, no

harsher sentence can be given than that initially imposed.”

247 Or at 313. The Turner court acknowledged that circum-

stances might arise in which a judge, on remand, would be

justified in imposing a more severe sentence. Id. Even so, the

court concluded that “permitting a harsher sentence under

such circumstances raises difficulties in judicial administra-

tion. It would require a court reviewing the propriety of the

second sentence to make a subjective determination whether

the new information justified and was in fact the motive for

the more severe sentence.” Id. at 314. Consequently, the court

determined that “the argument for efficient judicial admin-

istration outweighs the possible advantages of permitting

more severe sentences upon the basis of new information.”

Id. at 315.

In Partain, the court concluded that Turner “rested

on an unexamined elaboration on the right of appeal guar-

anteed by ORS 138.020—i.e., that the right of appeal neces-

sarily includes the right to have the length of any resentence

limited to the length of the sentence originally imposed.”

349 Or at 21. The court explained that changes in the law

pertaining to criminal sentencing and appeals since Turner

was decided made clear that Turner’s “expansive reading of

the right to appeal” was not viable. 349 Or at 22.

736 State v. Sierra

Despite overruling Turner, the court recognized

“the possibility that trial courts may employ their sentenc-

ing authority to punish defendants for having the temerity

to appeal earlier convictions and sentences.” 349 Or at 17.

In considering how Oregon courts should approach claims

of vindictiveness in sentencing, post-Turner, the court found

no obvious answer in the Oregon Constitution and deter-

mined that the federal Due Process Clause provides the rel-

evant source of law. Id. at 23-24. Taking its cue from the

United States Supreme Court’s decision in Pearce, the court

announced the following rules:

“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 rea-

sons must affirmatively appear on the record. Those rea-

sons must be based on identified facts of which the first sen-

tencing 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.

Thus, as understood and articulated by this court in

Partain, due process requires, first, that a judge who resen-

tences a defendant to a more severe sentence than the one

originally imposed make a record of the reasons for doing

so. Id. Second, those reasons (1) must be based on identi-

fied facts of which the first sentencing judge was unaware,

and (2) must satisfy a reviewing court that the length of the

sentence imposed is not a product of vindictiveness. Id. If

those requirements are not met, the increased sentence is

presumed vindictive. Id. at 26.5

1.  State’s argument that the Pearce/Partain require-

ments do not apply

Before we consider whether those requirements

were met in this case, we take up the state’s preliminary

5

We need not decide whether this court’s statement in Partain differs from

the Supreme Court’s articulation in Pearce because we conclude that a different

standard applies in this case, where a second judge resentenced defendant on

remand.

Cite as 361 Or 723 (2017) 737

argument that they do not apply at all. Relying on cases

decided by the United States Supreme Court after Pearce,

the state argues that the Pearce/Partain requirements do

not apply, as a categorical matter, where, as here, a different

judge resentences the defendant on remand.6 Defendant, for

his part, argues that the fact that a second judge from the

same court sentences a defendant is not sufficient to remove

the reasonable risk of vindictiveness caused by institu-

tional bias. According to defendant, a blanket exception to

the Pearce/Partain rule for sentences imposed by different

judges would permit actual vindictiveness to play a part in

sentencing by precluding the application of the presump-

tion in cases where there remains a reasonable likelihood of

vindictiveness.

The Supreme Court has not explicitly decided that

issue. In Pearce, a different judge resentenced the defendant

on remand, but, in a later case, the Court dismissed that

fact as irrelevant, concluding that it had not been drawn to

the Court’s attention, and “declin[ed] to read Pearce as gov-

erning the issue.” Texas v. McCullough, 475 US 134, 140 n 3,

106 S Ct 976, 89 L Ed 2d 104 (1986). Thus, we must glean

what we can about how the Supreme Court would decide the

issue from the Court’s reasoning in Pearce and its progeny.7

The case of Chaffin v. Stynchcombe, 412 US 17, 25,

93 S Ct 1977, 36 L Ed 2d 714 (1973), provides a good start-

ing point because it helpfully explains the Supreme Court’s

decision in Pearce as establishing two related, prophylac-

tic rules: (1) that, after a new trial, the reasons for a more

severe sentence “must affirmatively appear”; and (2) that

those reasons “must be based upon ‘objective information

6

The state acknowledges that it did not raise, before the sentencing court

or the Court of Appeals, the argument that the presumption of vindictiveness

does not apply where the resentencing is done by a different judge than the one

who imposed the original sentence. However, we agree with the state that that

argument is a permissible alternative basis on which this court may affirm the

judgment. See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634,

659-60, 20 P3d 180 (2001). The issue presented is one of law, and the factual

record could not have developed differently had the state raised the issue earlier

in the proceedings. Id.

7

As we noted in Partain, “[t]his court could, of course, announce additional

requirements under our own constitution or pursuant to statute,” 349 Or at

25; however, we found, in that case, no obvious basis for doing so in the Oregon

Constitution or state statutory law, and defendant does not posit a source here.

738 State v. Sierra

concerning identifiable conduct on the part of the defendant

occurring after the time of the original sentencing proceed-

ing.’ ” (Quoting Pearce, 395 US at 726.) In Chaffin, the Court

said:

“In Pearce it was held that vindictiveness, manifesting

itself in the form of increased sentences upon conviction

after retrial, can have no place in the resentencing process.

Under our constitutional system it would be impermissible

for the sentencing authority to mete out higher sentences on

retrial as punishment for those who successfully exercised

their right to appeal, or to attack collaterally their convic-

tion. Those actually subjected to harsher resentencing as

a consequence of such motivation would be most directly

injured, but the wrong would extend as well to those who

elect not to exercise their rights of appeal because of a legit-

imate fear of retaliation. Thus, the Court held that funda-

mental notions of fairness embodied within the concept of

due process required that convicted defendants be ‘freed of

apprehension of such a retaliatory motivation.’ [Pearce, 395

US at 725]. To that end, the Court concluded that ‘when-

ever a judge imposes a more severe sentence upon a defen-

dant after a new trial, the reasons for his doing so must

affirmatively appear.’ Id. [at 726]. And, as a further pro-

phylaxis, it was stated that 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.’ [Id.]”

412 US at 24-25 (footnotes omitted).

The Court then went on to consider whether to

apply Pearce in the circumstance presented—the circum-

stance in which, by state design, juries, rather than judges,

impose sentence. 412 US at 26-28. The Court reasoned that,

as long as “improper and prejudicial information regarding

the prior sentence is withheld” from the second jury, there

is no basis for holding that jury resentencing poses any real

threat of vindictiveness, and concluded that Pearce did not

apply. Id. at 28.

Before the Court decided Chaffin, it also had con-

sidered whether the Pearce rules were applicable in the con-

text of a two-tier system in which a defendant is entitled to

a trial de novo in a superior court. Colten v. Kentucky, 407

Cite as 361 Or 723 (2017) 739

US 104, 92 S Ct 1953, 32 L Ed 2d 584 (1972). In Chaffin,

the Court explained why it had decided, in Colten, that the

Pearce requirements did not apply:

“While noting that ‘[i]t may often be that the [de novo

‘appeal’ court] will impose a punishment more severe than

that received from the inferior court,’ [Colten, 407 US at

117], we were shown nothing to persuade us that ‘the haz-

ard of being penalized for seeking a new trial, which under-

lay the holding of Pearce, also inheres in the de novo trial

arrangement.’ Id. [at 116] (emphasis supplied). In short,

the Due Process Clause was not violated because the ‘possi-

bility of vindictiveness’ was not found to inhere in the two-

tier system. [Id.]”

412 US at 26 (emphasis in original). Thus, in both Chaffin

and Colten, the Court considered the constitutionality of

state procedures that eliminate the possibility of vindictive-

ness and held that, in that context, neither a statement of

the reasons for the imposition of a more severe sentence nor

a presumption of vindictiveness are required.

Two other cases that the Supreme Court decided

after Pearce are more on point—Alabama v. Smith, 490 US

794, 109 S Ct 2201, 104 L Ed 2d 865 (1989), and McCullough,

475 US at 134. In both of those cases, the same judge

imposed a more severe sentence after originally imposing a

less severe sanction. Smith, 490 US at 796-97; McCullough,

475 US at 135-36. And in both of those cases, the judge,

on retrial, provided reasons for the imposition of the more

severe sentence. Smith, 490 US at 797; McCullough, 475 US

at 136.

In Smith, the trial court imposed the original sen-

tence after the defendant’s guilty plea. On remand, the same

court conducted a full trial and imposed a harsher sentence

because it had learned new information about the defen-

dant’s crimes. Smith, 490 US at 796-97. The Supreme Court

described that new information in detail:

“The trial court explained that it was imposing a harsher

sentence than it had imposed following respondent’s guilty

plea because the evidence presented at trial, of which it

had been unaware at the time it imposed sentence on the

guilty plea, convinced it that the original sentence had

740 State v. Sierra

been too lenient. * * * As the court explained, at the time

it imposed sentence on the guilty plea, it had heard only

‘[respondent’s] side of the story’; whereas now, it ‘has had

a trial and heard all of the evidence,’ including testimony

that respondent had raped the victim at least five times,

forced her to engage in oral sex with him, and threatened

her life with a knife. [Id.] The court stated that this new

information about the nature of respondent’s crimes and

their impact on the victim, together with its observations

of his ‘mental outlook on [the offenses] and [his] position

during the trial,’ convinced it that it was ‘proper to increase

the sentence beyond that which was given to [him] on the

plea bargain.’ Id. [at 30.]”

Id. In McCullough, the judge explained that, on retrial, she

had heard evidence from two witnesses who had not testi-

fied at the original trial and that she had imposed a more

severe sentence based on that new, significant evidence. 475

US at 136.

In both Smith and McCullough, the Court upheld

the more severe sentences against Pearce challenges. In

Smith, the Court distinguished the facts of that case from

Pearce, explaining that

“in the course of the proof at trial the judge may gather a

fuller appreciation of the nature and extent of the crimes

charged. The defendant’s conduct during trial may give the

judge insights into his moral character and suitability for

rehabilitation. * * * Finally, after trial, the factors that may

have indicated leniency as consideration for the guilty plea

are no longer present.”

490 US at 801. In McCullough, the Court gave two reasons

for its decision. First, the court noted that the trial judge

had not been overruled by a higher court. McCullough, 475

US at 138. The “second trial came about because the trial

judge herself concluded that the prosecutor’s misconduct

required it.” Id. Second, the Court said, the trial judge had

provided “an on-the-record, wholly logical, nonvindictive

reason for the sentence.” Id. at 140. In the Court’s words, it

“read Pearce to require no more.” Id.

We read the Supreme Court cases decided since

Pearce as demonstrating that the application of the two

prophylactic rules adopted in Pearce will depend on the

Cite as 361 Or 723 (2017) 741

particular circumstances presented. In each case, the Court

has looked, and we think will continue to look, to the partic-

ular circumstances presented to determine whether there

is an apparent need to “guard against vindictiveness in

the resentencing process.” Chaffin, 412 US at 25 (empha-

sis omitted); McCullough, 475 US at 138 (internal quotation

marks omitted). Thus, in circumstances such as those pre-

sented in Chaffin and Colten, the risk of vindictiveness is

low; the second sentencer will not be required to articulate

the reasons for a more severe sentence, and a failure to do

so will not give rise to a presumption of vindictiveness. In

other circumstances, such as those presented in Smith and

McCullough, where the judge, on remand, articulates the

reasons for a more severe sentence, the Court will not pre-

sume vindictiveness as long as those reasons are “wholly

logical” and “nonvindictive.”8 McCullough, 475 US at 140.

We are cognizant that the Supreme Court’s post-

Pearce cases can be read more broadly to indicate an intent

to dispense with the requirement that a judge who imposes

a second, harsher sentence must articulate its reasons for

doing so, and that some lower courts seem to read them in

that way. See, e.g., Gonzales v. Wolfe, 290 Fed Appx 799, 813

(6th Cir 2008) (holding that, although no reason for more

severe sentence stated, no presumption of vindictiveness

because different judge resentenced defendant).9

However, many other federal courts read the cases

as we do. For instance, in Macomber v. Hannigan, 15 F3d

155, 157 (10th Cir 1994), the Tenth Circuit held that the

8

We note that the Court’s use of the phrase “presumption of vindictiveness”

is somewhat confusing. A “presumption” traditionally shifts the burden of proof

of production or persuasion to the opposing party, who is then invited to overcome

it. See Black’s Law Dictionary 1376 (10th ed 2014) (so defining the word “presump-

tion”). If operating in that fashion, a trial court’s failure to give reasons for a more

severe sentence would give rise to a presumption of vindictiveness that the trial

court could rebut by providing sufficient nonvindictive reasons for the sentence.

When the Court has discussed the “presumption of vindictiveness,” however, it

has said that the presumption does not apply when a trial court first offers a non-

vindictive reason for the sentence imposed. See, e.g., McCullough, 475 US at 140

(explaining that no presumption when judge provides an “on-the-record, wholly

logical, nonvindictive reason for the sentence”).

9

For a discussion of the dangers of the Supreme Court’s erosion of the Pearce

rule, see Stephen G. Murphy, Jr., Limits on Enhanced Sentences Following Appeal

and Retrial: Has Pearce Been Pierced?, 19 Conn L Rev 973, 988-995 (1986-87).

742 State v. Sierra

presumption of vindictiveness does not apply when a differ-

ent judge resentences a defendant and the judge satisfies

the added condition, articulated in McCullough, 475 US at

140, that the judge “provides an on-the-record, wholly logi-

cal, nonvindictive reason for the sentence.” See also United

States v. Anderson, 440 F3d 1013, 1016 (8th Cir 2006) (hold-

ing no presumption of vindictiveness when different judge

imposes more severe sentence and record contains nonvin-

dictive reasons for more severe sentence); United States v.

Newman, 6 F3d 623, 630 (9th Cir 1993) (“when a second

sentencing judge provides an ‘on-the-record, wholly logical,

nonvindictive reason for the sentence,’ the requirements of

Pearce are met”); Rock v. Zimmerman, 959 F2d 1237, 1257

(3rd Cir 1992), overruled on other grounds by Kontakis v.

Beyer, 19 F3d 110 (3rd Cir 1994) (holding Pearce presump-

tion does not apply where second sentence imposed by dif-

ferent sentencer and record provides “affirmative assurance

that the harsher sentence reflects simply a fresh look at the

facts and an independent exercise of discretion”).

Other courts that have not explicitly held that the

second judge must satisfy the “added-condition” require-

ment nevertheless have noted that the judge, on remand,

articulated reasons for the increased sentence. See United

States v. Rodriguez, 602 F3d 346, 359 (5th Cir 2010) (stating

that second judge provided “more than sufficient reasons for

the greater sentence”); United States v. Clark, 84 F3d 506,

508 (1st Cir 1996) (stating “second trial judge heard all of

the sentencing evidence anew and made findings adequate

to support the sentence imposed”); United States v. Cheek, 3

F3d 1057, 1064 (7th Cir 1993) (stating second judge “iden-

tified two aggravating facts that arose subsequent to [the

defendant’s] original trial, justifying the higher sentence”);

United States v. Perez, 904 F2d 142, 147 (2nd Cir 1990) (stat-

ing second judge based sentencing on “proper, non-vindictive

reasons for the sentence imposed”—the defendant’s “greed,

her lack of remorse, the fact that she played a major role in

the drug conspiracy, and the fact that, although never an

addict herself, she had immersed herself and her son in the

business of drugs”).

In Pearce, the Court recognized that due pro-

cess requires that courts refrain from vindictiveness in

Cite as 361 Or 723 (2017) 743

sentencing, and that defendants be freed of the apprehen-

sion of vindictiveness. The fact that a different judge imposes

an increased sentence does not eliminate those concerns or

the possibility that “institutional prejudices might infect a

trial judge’s resentencing of a defendant after a successful

appeal.” McCullough, 475 US at 150. Although a jury with-

out knowledge of a prior sentence is “unlikely to be sensitive

to the institutional interests that might occasion higher sen-

tences by a judge desirous of discouraging what he regards

as meritless appeals,” Chaffin, 412 US at 27, another judge

operating within the same system as the original judge

likely will have that knowledge and understandably could

be sensitive to those interests. Thus, we decline to adopt a

categorical rule that a difference in judges makes the first

prophylactic rule adopted in Pearce inapplicable. We will not

depart from our conclusion in Partain, that “[i]f 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 affir-

matively appear on the record.” 349 Or at 25-26.

We reach a different conclusion, however, as to the

second prophylactic rule imposed in Pearce. In Pearce, the

Court said that, to avoid a presumption of vindictiveness,

the judge, on remand, must give reasons based only “upon

objective information concerning identifiable conduct on

the part of the defendant occurring after the time of the

original sentencing proceeding.” Pearce, 395 US at 726.

However, in McCullough, the Court clarified that that was

only one way in which the state could demonstrate a lack of

vindictiveness:

“Nothing in Pearce is to be read as precluding a rebuttal of

intimations of vindictiveness. As we have explained, Pearce

permits ‘a sentencing authority [to] justify an increased

sentence by affirmatively identifying relevant conduct or

events that occurred subsequent to the original sentenc-

ing proceedings.’ [Wasman v. U.S., 468 US 559, 572, 104 S

Ct 3217, 82 L Ed 2d 424 (1984)] (Powell, J., concurring in

part and concurring in judgment). This language, however,

was never intended to describe exhaustively all of the pos-

sible circumstances in which a sentence increase could be

justified.”

744 State v. Sierra

McCullough, 475 US at 141. In McCullough, even though the

same judge who imposed the original sentence later imposed

a more severe sentence, the Supreme Court held that that

sentence met the Pearce requirements because the judge

supported it with “wholly logical, nonvindictive reason[s].”

Id. at 140. We think that the Supreme Court would follow

the same analysis in circumstances in which a different

judge considers the facts presented on remand. When two

different judges assess the facts of a particular case, those

two different individuals reasonably may reach different

conclusions about the appropriate punishment. The same

may be true when one judge assesses the case during an

original trial, and the other assesses it later, on remand. As

long as the second judge gives a “wholly logical, nonvindic-

tive reason” for the more severe sentence, we conclude that

the second Pearce requirement has been met. The same,

therefore, goes for the Partain requirements.10

2.  Application of Pearce/Partain in this case

The first step in a Pearce/Partain vindictiveness

analysis is to determine whether the sentence on remand

was more severe than the sentence originally imposed. A

sentence is “more severe” for Pearce/Partain purposes when

“the total length of the second sentence exceeds that of the

first.” Febuary, 361 Or at 563. Here, the total length of defen-

dant’s second sentence—276 months—exceeds the length of

his first sentence—250 months—and therefore qualifies as

a “more severe” sentence.

The next step, in this circumstance, is to determine

whether the court on remand articulated a “wholly logical,

nonvindictive reason” for the more severe sentence.

Although the state did not seek departure sentences in

defendant’s original prosecution, it did so on remand.11 On

remand, the state alleged and tried four enhancement fac-

tors to the jury on the first-degree kidnapping conviction.

10

We note that, even when the presumption of vindictivess does not apply,

a defendant always may demonstrate a due process violation by “affirmatively

prov[ing] actual vindictiveness.” Febuary, 361 Or at 558 (quoting Wasman v.

United States, 468 US 559, 569, 104 S Ct 3217, 82 L Ed 2d 424 (1984)).

11

As noted, defendant objected to the new allegations, but the trial court

permitted them and defendant does not raise that issue in this court.

Cite as 361 Or 723 (2017) 745

The jury unanimously found that the state had proved each

of the four factors. In imposing sentence, the court stated

that it “would impose an upward durational departure

based on the jury’s findings.” The court also gave reasons

for the increased sentence in Partain terms; it referred to

other information available on resentencing that it consid-

ered unknown to the original court. We need not consider

whether that information alone would meet the Pearce/

Partain requirements. The fact that the state alleged, and

the jury found, four significant enhancement factors that

had not been alleged or found during the original trial is

a “wholly logical, nonvindictive reason” for the increased

sentence, and that reason appears in the record. We con-

clude that the sentencing judge’s reasons for the more severe

sentence were sufficient to comply with the requirements of

Pearce and Partain.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.