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Oregon Applies Total Sentence Approach to Assess Pearce Vindictiveness

The Oregon Court of Appeals held that the "total sentence approach" is the proper test for assessing whether an increased sentence after a successful appeal is presumptively vindictive.

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072 (1969), the Supreme Court held that due process prohibits vindictiveness against a criminal defendant for having successfully challenged his conviction on appeal. "Because 'fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction,'" Pearce also held that "'due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.'" Pearce therefore mandates that the sentencing court affirmatively state its reasons for a more severe sentence following appeal.

The Oregon Supreme Court adopted the Pearce rule in State v. Partain, 349 Or 10, 239 P3d 232 (2010). In doing so, however, "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."'

Roger Robert February was convicted of four sex crimes against his 13-year old step­daughter and a furnishing alcohol to a minor offense. He was sentenced to a total of 170 months in prison on the sex crimes and 60 months of probation on the alcohol conviction. The probationary sentence was imposed concurrently to the prison term on the other convictions.

February appealed his convictions and the Oregon Court of Appeals reversed, holding that prior bad act evidence related to February's similar conduct toward the victim's older sister was inadmissible. On remand, February agreed to plead guilty to one sex crime and the alcohol offense in exchange for the dismissal of the other three charges.

At sentencing the prosecutor asked the court to impose a 12 month consecutive prison term on the alcohol conviction rather than the concurrent probation that was previously imposed.

The court agreed and sentenced February to 75 months on the sex crime and 12 months on the alcohol conviction, for a total prison term of 87 months, or roughly half of the original 170 month prison term.

"This is a guy who offers his sick step-daughter, who's home*** from school sick, offers her vodka and wine, and then comes back later to touch her vagina," the court stated in explaining its non-vindictive rationale for the increased sentence. "This was done to facilitate the commission of the Sex Abuse in the First Degree."

The Court of Appeals rejected February's argument that the increased sentence on the alcohol conviction was presumptively vindictive under Pearce and Partain.

"A minority of appellate courts interpreting Pearce have adopted the 'remainder aggregate' (or 'count by count') approach'' to determining whether a new sentence triggers the presumption of prejudice, the court observed. ”Under that approach, those courts 'compare the defendant's new sentence to his previous sentence without the vacated count(s),"' the court noted. "'If the new sentence on the remaining counts exceeds the original sentence on those counts, the Pearce presumption attaches."'

Yet, "a majority of appellate courts interpreting Pearce have adopted the aggregate approach," the court found. "Under that approach, those courts 'compare the total original sentence to the total sentence after resentencing. If the new sentence is greater than the original sentence, the new sentence is considered more severe."' Yet, the Pearce presumption of vindictiveness is not triggered when the new total sentence is less than the original total sentence.

Measured by the "count by count" approach, February's new sentence would trigger the Pearce presumption, but under the "total sentence" approach, it would not.

The court then interpreted Partain as endorsing the total sentence approach to measuring whether a new sentence trigger the presumption of vindictiveness.  That interpretation is consistent with the majority of courts from other jurisdictions that have considered the issue, the court found.

Against that measure, the Pearce presumption of vindictiveness was inapplicable because February's 87 month prison term was not more severe than his original 170 month sentence. See: State v. February, 274 Or App 820, _ P3d _ (2015).

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Related legal cases

State v. February

Pearce rule in State v. Partain

North Carolina v. Pearce