State v. Bradley

Under ORS 138.222(5), when a judge resentences a defendant after a successful appeal, the new sentence may not be vindictive; a new sentence is presumptively vindictive if it is longer than the previous sentence. When a new sentence is not presumptive vindictive, a defendant must affirmatively prove actual vindictiveness.

Defendant was originally convicted on numerous counts of various sex crimes, which he appealed. In the first appeal, the Court of Appeals reversed and remanded on several counts and affirmed on three others, and Defendant was subsequently reconvicted on the affirmed counts. This appeal followed, in which Defendant assigned error to the trial court’s imposition of a longer sentence on the affirmed counts than it originally imposed. Defendant argues that this, and the trial court considering the reversed counts in deciding his new sentence, gives the sentence the appearance of vindictiveness. Under ORS 138.222(5), when a judge resentences a defendant after a successful appeal, the new sentence may not be vindictive; a new sentence is presumptively vindictive if it is longer than the previous sentence. When a new sentence is not presumptive vindictive, a defendant must affirmatively prove actual vindictiveness. The Court held that Defendant affirmatively proved actual vindictiveness, because the trial court improperly based its new sentence for the affirmed counts on the reversed counts that were pending prosecution. Remanded for resentencing; otherwise affirmed.