Gardner v. State

Scotty Ray GARDNER v. STATE of Arkansas

CR 97-785                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 26, 1998


1.   Appeal & error -- failure to object waived argument that trial court was
     vindictive in imposing consecutive sentences. -- To the extent that
     appellant claimed that the trial court was vindictive in
     imposing consecutive sentences, the supreme court concluded
     that the argument was waived by the failure to object to the
     imposition of consecutive sentences, and more particularly by
     the failure to object that the imposition of consecutive
     sentences violated appellant's due-process rights.

2.   Appeal & error -- prosecutorial vindictiveness -- trial court's finding
     reviewed for clear error. -- The supreme court reviews a trial
     court's finding regarding prosecutorial vindictiveness for
     clear error.

3.   Constitutional law -- prophylactic rule -- due process requires that
     vindictiveness play no part in sentence defendant receives after new trial.
     -- Under a prophylactic rule fashioned by the United States
     Supreme Court to protect against a sentencing authority
     imposing a greater sentence following a defendant's exercise
     of his right to appeal, when a defendant has successfully
     attacked his first conviction, due process requires that
     vindictiveness play no part in the sentence he receives after
     a new trial; due process requires that a defendant be freed of
     apprehension of a retaliatory motivation on the part of the
     sentencing judge so that the defendant will not be deterred
     from exercising his right to appeal or collaterally attack his
     first conviction. 

4.   Constitutional law -- reasons for imposing more severe sentence after new
     trial must affirmatively appear. -- To assure the absence of a
     retaliatory motivation, whenever a judge imposes a more severe
     sentence after a new trial, the reasons for his doing so must
     affirmatively appear.

5.   Constitutional law -- prophylactic rule on vindictiveness applies to
     prosecutors. -- The Supreme Court's prophylactic rule regarding
     vindictiveness has been extended to prosecutors.

6.   Constitutional law -- convicted person exercising right to de novo trial
     should be free of apprehension of substitution of more serious charge. -- 
     A person convicted of an offense should be free of
     apprehension of the substitution of a more serious charge,
     subjecting that person to increased penalties and other
     collateral consequences, once that person exercises his
     statutory right to a de novo trial. 

7.   Constitutional law -- presumption of vindictiveness limited -- reasonable
     likelihood of actual vindictiveness in sentencing necessary. -- The
     Supreme Court has limited the presumption of vindictiveness to
     circumstances in which there is a reasonable likelihood that
     the increase in sentence is the product of actual
     vindictiveness on the part of the sentencing authority; where
     there is no such reasonable likelihood, the burden remains
     upon the defendant to prove actual vindictiveness.

8.   Constitutional law -- establishing claim for prosecutorial vindictiveness -
     - actual vindictiveness. -- A defendant may establish actual
     vindictiveness by proving objectively that the prosecutor's
     charging decision was motivated by a desire to punish him for
     doing something that the law plainly allowed him to do; this
     is an extremely difficult burden for the defendant to satisfy
     because it involves proving the prosecutor's state of mind.

9.   Constitutional law -- little objective evidence of actual vindictiveness -
     - failed to satisfy appellant's burden. -- In this case, there was
     little objective evidence of actual vindictiveness in the
     record; while at one time defense counsel alleged that the
     prosecutor's remarks during trial that appellant was "abusing
     the system" constituted evidence of actual vindictiveness,
     this evidence failed to satisfy the defendant's burden to
     prove actual vindictiveness.

10.  Constitutional law -- appellant established prima facie due-process
     violation in charging. -- The supreme court held that appellant
     had established a prima facie due process violation by showing
     that the State added a charge against him so as to expose him
     to a greater range of punishment following the successful
     collateral attack of his guilty plea; thus, the case turned on
     whether the State sufficiently rebutted a presumption of
     vindictiveness.

11.  Constitutional law -- presumption of vindictiveness -- how overcome. --
     The presumption of vindictiveness may be overcome by objective
     information in the record justifying the increased sentence or
     by objective evidence justifying the prosecutor's action.

12.  Constitutional law -- presumption of vindictiveness -- objective
     explanation on record sufficient to rebut. -- In the case of added
     counts, a prosecutor should be able to rebut a presumption of
     vindictiveness with an objective, on-the-record explanation.

13.  Constitutional law -- prosecutor produced objective evidence to justify
     addition of habitual-offender count -- trial court did not err in allowing
     State to amend information. -- Where the prosecutor produced
     objective, on-the-record evidence from which the trial court
     could find a sufficient justification for the addition of a
     habitual-offender count, the supreme court could not say that
     the trial court was clearly erroneous in allowing the State to
     amend the information to add the habitual count.

     Appeal from Arkansas Circuit Court; Russell Rogers, Judge;
affirmed.
     Alvin Schay, for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.

     Annabelle Clinton Imber, Justice.
     This case presents a question concerning the law of
prosecutorial vindictiveness.  The appellant purported to enter a
guilty plea which was subsequently vacated on federal habeas
review.  On retrial, the appellant was charged as a habitual
offender based on prior felony convictions, most of which had
occurred prior to the appellant's initial plea attempt.  The
trial court denied the appellant's motion to dismiss the habitual
charge based on prosecutorial vindictiveness.  We find no error
and affirm.   
     On November 8, 1990, Scotty Ray Gardner was charged with two
counts of criminal attempt to commit first-degree murder in
Arkansas County Circuit Court.  While the case was set for a jury
trial on November 15, 1991, Gardner purported to enter a guilty
plea to the two counts at a hearing on October 23, 1991.  On
October 30, 1991, the trial court sentenced Gardner to two
concurrent terms of thirty years' imprisonment, with seven years
of each term suspended.
     In an unpublished opinion, this court affirmed the denial of
Gardner's Rule 37 petition and his petition to withdraw the plea. 
Gardner v. State, No. CR 94-559 (Ark. slip op. Feb. 27, 1995). 
However, the United States District Court, Eastern District of
Arkansas, found that the trial court failed to establish a
factual basis for the guilty plea, and impermissibly sentenced
Gardner without his presence or the presence of counsel. 
Accordingly, on January 11, 1996, the District Court ordered the
issuance of a writ of habeas corpus conditioned on Gardner's
rearraignment and retrial.
     On February 13, 1996, the prosecuting attorney filed an
amended information charging Gardner as a habitual offender with
four or more felonies pursuant to Ark. Code Ann.  5-4-501 (Repl.
1997).  While at trial on July 11, 1996, Gardner objected to the
amendment of the habitual-offender count, arguing that the
amendment constituted a penalty for the exercise of his rights. 
He moved that the case should proceed as originally charged.  The
prosecutor explained as follows:  
The Court is well aware that a lot of times we don't
complete our review of somebody's criminal record until
well -- until just before trial, and it's not at all
uncommon for me to amend to allege habitual status a
week before trial, just as long as I let defense
counsel know.  In this case also, we have an additional
conviction after Mr. Gardner -- after we all thought
Mr. Gardner had plead [sic] guilty, which changed the -
- changed the statue even more.  He has Oklahoma
convictions; he has Fort Smith convictions.  He has
Cleveland County charges that were dismissed as a
result of what we thought was a plea here.  And then he
subsequently had escape charges in Arkansas County.  He
is a habitual offender.  And I think the State is
entitled -- he walked up there and we thought plead
[sic] guilty.  And I think the State is entitled to
amend at any point in time.  And I have told [defense
counsel], well, I think I amended probably in January
or February, as soon as I found this thing was being
remanded, and I was able to complete my -- complete my
checking of his -- of his past record."    

The trial court asked whether Gardner could have been charged as
a habitual before, to which the prosecutor responded in the
affirmative for "small habitual."  When asked again why Gardner
was not charged as a habitual offender initially, the prosecutor
states that: 
Your Honor, I had never gotten that far along.  He
walked up -- we had never gotten that far along in --
in trial preparation.  There are a lot of times that we
don't -- until I see a case is going to trial I don't
get certified copies of these things simply because
they charge me every time I get a copy from Oklahoma,
or Fort Smith, or wherever.  We didn't get close enough
to trial.  We walked up there and plead [sic] guilty to
the Court.  I didn't -- [defense counsel] might have an
argument if I had extended him an offer of twenty-three
years, and that was based upon a plea arrangement that
we reached and then he set it aside.  He refused, or
rejected my first offer.  And I did not tell the Court
I wasn't going to extend him an offer.  I said, "He has
rejected my offer.  I don't feel obligated to extend
him another one."  

* * *

And since then I have talked to the victims, and the
victims have both said they want their day in court. 
And -- and in this type of situation, I think I have
got to give them -- give them some deference, Judge.   


Following jury selection, an in-chambers hearing was held where
the prosecutor further explained that:
[A]fter we discussed the issue of the alleged
prosecutorial vindictiveness, I went back to and looked
at the escape Information that was charged -- filed
against Mr. Gardner in 1991, to which he pled and
received a sentence of four years.  He was charged as a
habitual offender at that time.  That was well before
there was any guilty plea set aside or anything else. 
And based upon that, I would -- I would offer that as
further evidence that there is no prosecutorial
vindictiveness in this case."  

     Following the close of the State's case-in-chief, Gardner
again objected to the increase in severity and moved that the
case be submitted only on the original charges.  The prosecutor
responded with the escape information that he filed against
Gardner in 1991, stating that he charged Gardner as a habitual
"some five -- four or five years before this guilty plea was set
aside."  While the jury was deliberating during the guilt phase, 
defense counsel once again objected to the addition of the
habitual charge.  The prosecutor responded as follows:
To bring anybody who ever uses this record up to date,
Mr. Gardner was arrested in November.  He was ordered
committed to the State Hospital -- the Southeast
Arkansas.  That was done, examination on 12-10.  They
recommend that he be seen at the State Hospital.  All
of which delays any -- any decision.  He was out on
bond, he was seen and examined by them, that -- that
report came down May the eighteenth, or May of '91,
sometime.  Mr. Gardner then went to Oklahoma.  His bond
was revoked.  Upon his return to the state of Arkansas
he pled open-ended to the Court.  Now, I don't know
that there was ever a trial date set in this case.  I
believe I have got the option to amend the habitual
status at any point as long as the defendant has
reasonable notice.  It's also very important to point
out that when he was charged with the escape in
November of '91, that was an allegation of the habitual
offender status, well before he filed any motion with
the Federal Court.   I have said he is manipulating the
system speaking solely about what he has told the
various mental health professionals that have dealt
with him.  I would also point out that the Amended
Information was filed in February of 1996.  As soon as
I found out this case had been remanded, I knew that I
was intending to charge Mr. Gardner as a habitual and I
amended.  It's not like I did it just before trial. 
[Defense counsel] has known about it."    

The trial court ultimately denied Gardner's request that the case
be submitted as originally charged.  The felony convictions given
to the jury in support of the habitual count included a 1983
Oklahoma larceny of merchandise from a retailer plea, and an
Oklahoma unauthorized use of a vehicle plea on the same date. 
Gardner had also pleaded guilty in 1986 to theft of property in
Sebastian County, and to a 1992 second-degree escape in Arkansas
County.      
     Following the trial, the jury found Gardner guilty of one
count of criminal attempt to commit murder in the first degree
and one count of battery in the first degree, and imposed
sentences in the amount of thirty and twenty years' imprisonment,
respectively.  The jury also recommended that these sentences run
consecutively.  The trial court entered a judgment and commitment
order reflecting these sentences, and ordered that they be served
consecutively. 
     As set forth in Gardner's sole point on appeal, his only
argument for reversal is that the trial court erred in allowing
the prosecutor to amend the information to add the habitual-
offender charge.  However, a fair reading of the remainder of
Gardner's brief suggests that he additionally contends that the
trial court was vindictive in imposing consecutive sentences, as
opposed to the concurrent sentences originally imposed when the
purported guilty plea was entered.  To the extent that this is a
claim that the trial court was vindictive in imposing consecutive
sentences, we agree with the State that this argument was waived
by the failure to object to the imposition of consecutive
sentences, and more particularly by the failure to object that
the imposition of consecutive sentences violated his due-process
rights.  We now turn to Gardner's claim that he was denied due
process when the prosecutor amended the information against him
to add the habitual-offender count.  We review a trial court's
finding regarding prosecutorial vindictiveness for clear error. 
Horne v. State, 12 Ark. App. 301, 677 S.W.2d 856 (1984). 
     In North Carolina v. Pearce, 395 U.S. 711 (1969), overruled
in part, Alabama v. Smith, 490 U.S. 794 (1989), the Supreme Court
fashioned a prophylactic rule to protect against a sentencing
authority imposing a greater sentence following a defendant's
exercise of his right to appeal.  When a defendant has
successfully attacked his first conviction, due process requires
that vindictiveness "play no part in the sentence he receives
after a new trial."  Id.  The Court also held that due process
requires that a defendant "be freed of apprehension" of a
retaliatory motivation on the part of the sentencing judge so
that the defendant will not be deterred from exercising his right
to appeal or collaterally attack his first conviction.  In order
to "assure the absence of such a motivation," the Court concluded
that whenever a judge imposes a more severe sentence after a new
trial, the "reasons for his doing so must affirmatively appear." 
Id.  Moreover, "[t]hose 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 a part of the record, so that the
constitutional legitimacy of the increased sentence may be fully
reviewed upon appeal."  Id.  
     Pearce's prophylactic rule was extended to prosecutors in
Blackledge v. Perry, 417 U.S. 21 (1974).  In Blackledge the
respondent, already an incarcerated prisoner, was initially
charged in North Carolina District Court with misdemeanor assault
with a deadly weapon.  Following a bench trial, the respondent
was given a six-month sentence to be served following the
expiration of the time he was already serving.  Respondent then
exercised his statutory right to trial de novo in North Carolina
Superior Court.  Following the filing of the notice of appeal,
the prosecuting attorney obtained an indictment (based on the
same conduct) for felony assault with a deadly weapon with intent
to kill and inflict serious bodily injury.  Respondent pleaded
guilty to the indictment in Superior Court, and was sentenced to
a term of five to seven years to be served concurrently with time
already being served.
     The Supreme Court granted certiorari to consider whether the
"indictment on the felony charge constituted a penalty for his
exercising his statutory right to appeal" in violation of the Due
Process Clause of the Fourteenth Amendment.  Id.  Respondent's
due process arguments were "derived substantially" from Pearce,
supra.  Blackledge, supra.  While the Blackledge Court
acknowledged that there was no evidence of prosecutorial bad
faith or maliciousness in seeking the felony indictment, "[t]he
rationale of our judgment in the Pearce case, however, was not
grounded upon the proposition that actual retaliatory motivation
must inevitably exist.  Rather, we emphasized that `since the
fear of such vindictiveness may unconstitutionally deter a
defendant's exercise of his 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.'"  Blackledge,
supra (quoting Pearce, supra).  The Blackledge Court reasoned
that the same considerations applied so that a person convicted
of an offense should be free of apprehension of the substitution
of a more serious charge, subjecting that person to increased
penalties and other collateral consequences, once that person
exercised his statutory right to a de novo trial.  Thus, due
process required that "such a potential for vindictiveness" not
enter North Carolina's two-tiered appellate process.  Blackledge,
supra.  "We hold, therefore, that it was not constitutionally
permissible for the State to respond to [respondent's] invocation
of his statutory right to appeal by bringing a more serious
charge against him prior to the trial de novo."  Blackledge,
supra.
     United States v. Goodwin, 457 U.S. 368 (1982), limited the
holdings of Pearce and Blackledge insofar as they related to a
presumption of vindictiveness.  In Goodwin, the "question
presented [was] whether a presumption that has been used to
evaluate a judicial or prosecutorial response to a criminal
defendant's exercise of a right to be retried after he has been
convicted should also be applied to evaluate a prosecutor's
pretrial response to a defendant's demand for a jury trial."  The
respondent in Goodwin was initially charged with several
misdemeanor offenses, but was subsequently indicted with felony
offenses arising out of the same conduct once plea negotiations
broke down.  Respondent moved to set aside the verdict on the
ground of prosecutorial vindictiveness, alleging that the
indictment on the felony charge "gave rise to an impermissible
appearance of retaliation."  Id.  
     The Goodwin Court declined to apply the Blackledge
prophylactic rule.  Examining its prior holdings, the Supreme
Court stated that in Pearce the Court "applied a presumption of
vindictiveness, which may be overcome only by objective
information in the record justifying the increased sentence." 
Goodwin, supra.  Likewise, in Blackledge, "the Court held that
the likelihood of vindictiveness justified a presumption that
would free defendants of apprehension of such a retaliatory
motive on the part of the prosecutor."  Goodwin, supra. 
Distinguishing Pearce and Blackledge, the Goodwin Court explained
that "[t]he decisions in these cases represent a recognition by
the Court of the institutional bias inherent in the judicial
system against the retrial of issues that have already been
decided."  The case was more like Bordenkircher v. Hayes, 434 U.S. 357 (1978), where the Court held that there was no due
process prohibition against a prosecutor carrying out a threat
made during plea negotiations, to bring additional charges should
the defendant refuse to plead guilty to the offense as originally
charged.  Like Bordenkircher, the facts in Goodwin arose "from a
pretrial decision to modify the charges against the defendant." 
Goodwin, supra.  However, unlike Bordenkircher, there was no
evidence in the record to support a claim of actual
vindictiveness on the part of the prosecutor, "the prosecutor
never suggested that the charge was brought to influence the
respondent's conduct."  Goodwin, supra.  Because there was no
evidence of actual vindictiveness, the Goodwin case turned on
whether a presumption of vindictiveness would apply.
     Here the Supreme Court was wary of adopting an "inflexible
presumption of prosecutorial vindictiveness in a pretrial
setting":
  In the course of preparing a case for trial, the
prosecutor may uncover additional information that
suggests a basis for further prosecution or he simply
may come to realize that information possessed by the
State has a broader significance. At this stage of the
proceedings, the prosecutor's assessment of the proper
extent of prosecution may not have crystallized. In
contrast, once a trial begins Ä- and certainly by the
time a conviction has been obtained Ä- it is much more
likely that the State has discovered and assessed all
of the information against an accused and has made a
determination, on the basis of that information, of the
extent to which he should be prosecuted. Thus, a change
in the charging decision made after an initial trial is
completed is much more likely to be improperly
motivated than is a pretrial decision.

   In addition, a defendant before trial is expected to
invoke procedural rights that inevitably impose some
"burden" on the prosecutor. Defense counsel routinely
file pretrial motions to suppress evidence; to
challenge the sufficiency and form of an indictment; to
plead an affirmative defense; to request psychiatric
services; to obtain access to government files; to be
tried by jury. It is unrealistic to assume that a
prosecutor's probable response to such motions is to
seek to penalize and to deter. The invocation of
procedural rights is an integral part of the adversary
process in which our criminal justice system operates.

Goodwin, supra.
     The timing of the prosecutor's action suggested that a
presumption of vindictiveness was not warranted.  "A prosecutor
should remain free before trial to exercise the broad discretion
entrusted to him to determine the extent of the societal interest
in prosecution. . . the initial charges filed by a prosecutor may
not reflect the extent to which an individual is legitimately
subject to prosecution."  Goodwin, supra.  While the respondent
initially expressed interest in plea negotiations, he later opted
for a jury trial in District Court, forcing the Government to
"bear the burdens and uncertainty of a trial."  Goodwin, supra. 
"Perhaps most importantly, the institutional bias against the
retrial of a decided question that supported the decisions in
Pearce and Blackledge simply has no counterpart in this case." 
Goodwin, supra.
     The Supreme Court further limited the Pearce holding in
Alabama v. Smith, 490 U.S. 794 (1989).  In Smith the respondent
pleaded guilty to charges of burglary and rape, and the
prosecutor dropped a sodomy charge in exchange.  The trial court
sentenced him to two thirty-year terms of imprisonment to be run
concurrently.  Later, the respondent successfully got his guilty
plea vacated and the case was remanded for retrial.  The case was
reassigned to the same trial judge, and the case went to trial on
the three original charges, including the sodomy charge.  The
jury found respondent guilty on all three counts, and the trial
court imposed a sentence of life imprisonment on the burglary
conviction, in addition to a concurrent term of life imprisonment
on the sodomy conviction and a consecutive term of 150 years'
imprisonment on the rape conviction.  The trial court explained
that it imposed "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 been
too lenient."  Id.
     The Supreme Court held that the Alabama Supreme Court
erroneously applied the Pearce prophylactic rule to presume
vindictiveness on the part of the trial court.  The Smith Court
explained that the Pearce presumption of vindictiveness was
limited in Goodwin to circumstances in which there was a
"`reasonable likelihood'. . . that the increase in sentence is
the product of actual vindictiveness on the part of the
sentencing authority.  Where there is no such reasonable
likelihood, the burden remains upon the defendant to prove actual
vindictiveness."  Alabama v. Smith, supra (quoting Goodwin,
supra).  Following this reasoning, the Court concluded that "when
a greater penalty is imposed after trial than was imposed after a
prior guilty plea, the increase in sentence is not more likely
than not attributable to the vindictiveness of the sentencing
judge.  Even when the same judge imposes both sentences, the
relevant sentencing information available to the judge after the
plea will usually be considerably less than that available after
a trial."  Alabama v. Smith, supra.  While the same judge that
sentenced following a guilty plea may be imposing sentence
following trial, the judge is not "do[ing] over what it thought
it had already done correctly."  Alabama v. Smith, supra.  The
Court went as far to overrule Simpson v. Rice, the companion case
to Pearce, supra,  since it involved an application of the
presumption of vindictiveness in a case where an increased
sentence was imposed following the vacation of a guilty plea. 
"[T]here is no basis for a presumption of vindictiveness where a
second sentence imposed after trial is heavier than a first
sentence imposed after a guilty plea."  Alabama v. Smith, supra.
     The upshot of the Supreme Court cases is that a defendant
can establish a claim for prosecutorial vindictiveness in charge
selection in two ways.  First, the defendant may establish actual
vindictiveness by "prov[ing] objectively that the prosecutor's
charging decision was motivated by a desire to punish him for
doing something that the law plainly allowed him to do." 
Goodwin, supra.  Of course, this is an extremely difficult burden
for the defendant to satisfy, given that it involves proving the
prosecutor's state of mind.  In the present case, there is
little objective evidence of actual vindictiveness in the record. 
While at one time defense counsel alleged that the prosecutor's
remarks during trial that Mr. Gardner was "abusing the system"
constituted evidence of actual vindictiveness, this evidence
fails to satisfy the defendant's burden to prove actual
vindictiveness.  
     Rather, Gardner must rely on the Blackledge presumption of
vindictiveness, which was applied where the prosecutor
substituted a "more serious charge for the original one, thus
subjecting [the defendant] to a significantly increased potential
period for incarceration" following the exercise of a "right." 
Blackledge, supra.  In the present case, the State amended the
information against Gardner to add a habitual-offender charge,
exposing Gardner to a greater range of punishment than he was
exposed to when he pleaded guilty to the initial charges. 
Professor LaFave writes that a charge is "obviously" "more
serious" for Blackledge purposes when a count is added under a
habitual-criminal act.  Wayne R. LaFave and Jerold H. Israel,
Criminal Procedure,  13.7(c) (1984 and Supp. 1991) (citing James
v. Rodriguez, 553 F.2d 59 (10th Cir. 1977), cert. denied, 434 U.S. 889 (1977) (holding that "tactical" filing under the New
Mexico Habitual Criminal Act on defendant's retrial violated the
defendant's right of appeal where the State "made no attempt to
justify the increased punishment.")).
     We hold that Gardner has established a prima facie due
process violation by showing that the State added a charge
against him so as to expose him to a greater range of punishment
following the successful collateral attack of his guilty plea. 
Thus, this case turns on whether the State sufficiently rebutted
a presumption of vindictiveness.
     In Blackledge, supra, the Supreme Court provided an example
of when the State may permissibly substitute a more serious
charge on retrial -- when it was "impossible" to bring the
increased charge at the first trial -- for example when a
homicide victim had not yet died at the time of the first trial,
thus making it impossible to bring a homicide charge.  The
Goodwin Court, in reviewing the Pearce holding (on which
Blackledge was based), stated that "the [Pearce] Court applied a
presumption of vindictiveness, which may be overcome only by
objective information in the record justifying the increased
sentence."  Goodwin, supra. (emphasis added).  In a later
footnote reviewing the Blackledge opinion, the Goodwin Court
stated that "[t]he presumption again could be overcome by
objective evidence justifying the prosecutor's action."  Goodwin,
supra (emphasis added).  Further guidance can be found in Texas
v. McCullough, 475 U.S. 134 (1986), where a majority of the
Supreme Court refused to technically limit the sentencing
authority's ability to rebut a presumption of vindictiveness with
information obtained after the initial trial.  The Pearce opinion
was not "intended to describe exhaustively all of the possible
circumstances in which a sentence increase could be justified. 
Restricting justifications for a sentence increase to only
`events that occurred subsequent to the original sentencing
proceedings' could in some circumstances lead to absurd results." 
 McCullough, supra.  
     Professor LaFave writes that other jurisdictions vary as to
what showing will suffice to rebut the presumption.  LaFave,
supra.  He identifies approaches that range from a requirement
that a prosecutor merely state a nonvindictive reason when
charges are added, e.g., Jackson v. Walker, 585 F.2d 139 (5th
Cir. 1978), to a stringent requirement that the prosecutor
"dispel any appearance of prosecutorial vindictiveness."  E.g.,
United States v. Burt, 619 F.2d 831 (9th Cir. 1980).  As an
attractive "middle ground," LaFave suggests an approach set forth
in United States v. Andrews, 633 F.2d 449 (6th Cir. 1980), cert.
denied, 450 U.S. 927 (1981), holding that where counts are added,
the prosecutor must produce an "objective explanation" for his
actions.  "[O]nly objective, on-the-record evidence can rebut a
finding of realistic likelihood of vindictiveness."  United
States v. Andrews, supra.  As examples of explanations that could
rebut the presumption, the Andrews court explained that a
prosecutor could not rebut the presumption by stating that she
had merely "made a mistake," but could prevail by showing
governmental discovery of previously unknown evidence, or
previous legal impossibility.  United States v. Andrews, supra.
     We agree that in the case of added counts, a prosecutor
should be able to rebut a presumption of vindictiveness with an
objective, on-the-record explanation.  In the present case, there
is more than a simple subjective assertion of the prosecutor's
good faith.  Rather, the prosecutor explained that "a lot of
times" he did not completely review a case "until just before
trial."  He stated that the cost of obtaining these records was a
factor in waiting until trial was imminent.  Because the case did
not proceed to trial, the prosecutor did not discover the
existence of the priors.  Moreover, the prosecutor pointed out
that when he filed the information against Gardner on the escape
count, prior to the federal grant of habeas relief, he charged
Gardner as a habitual.  Thus, this also arguably rebuts a
likelihood of vindictiveness given that the prosecutor had
charged Gardner as a habitual offender before the exercise of his
federal habeas rights.  In sum, the prosecutor produced
objective, on-the-record evidence from which the trial court
could find a sufficient justification for the addition of the
habitual count.  Based on these facts, we cannot say that the
trial court was clearly erroneous in allowing the State to amend
the information to add the habitual count.
     Affirmed.
     Newbern and Brown, JJ., dissenting.

     Robert L. Brown, Justice, dissenting.  I agree with the
majority opinion that a prima facie case of a due process
violation was made by the prosecutor's adding the habitual
offender count on retrial.  I also agree that our test should be
whether the prosecutor offered an objective explanation for why
the enhancement charge was not originally made.  United States v.
Goodwin, 457 U.S. 368 (1982).  And I, finally, agree that a mere
mistake by the prosecutor in not filing the habitual offender
count initially is not sufficient to rebut the presumption.  See
United States v. Andrews, 633 F.2d 449 (6th Cir. 1980), cert.
denied, 450 U.S. 927 (1981).
     The problem in this case is that the facts do not warrant a
rebuttal of the presumption under the law set out by the
majority.  First, the only explanation by the prosecutor as to
why he did not initially charge Gardner as a habitual offender is
that the matter never came to trial and he usually checked for
other convictions and amended the criminal information, if
appropriate, a week before trial.  This explanation falls short
of an objective explanation and falls more readily into the
category of a mistake.  The prosecutor attended the plea, and
what could be of greater importance to the sentencing judge than
the fact that the defendant had a prior record?  Yet, the trial
judge did not have this information available when he first
sentenced Gardner.
     There is also the point that there is no indication that the
trial court used the presumption-of-vindictiveness standard or
sought an objective explanation from the prosecutor to rebut that
presumption.  What the trial court did was rely on Aaron v.
State, 319 Ark. 320, 891 S.W.2d 364 (1995), which is
distinguishable from this case on the facts.  In Aaron, the
prosecutor tried to amend the criminal information in the first
trial to charge the defendant as a habitual offender and the
trial court sustained the defendant's objection that the
prosecutor was too late.  We reversed the conviction, and prior
to retrial, the prosecutor "corrected its oversight" and amended
the information.  Aaron, 319 Ark. at 323, 891 S.W.2d  at 365.  We
held that this correction was not evidence of prosecutorial
vindictiveness.  Contrary to the facts in Aaron, in the instant
case, there was no effort by the prosecutor to amend Gardner's
information before his plea and sentence.
     In sum, we are talking merely about a mistake made by the
prosecutor to rebut the presumption of vindictiveness.  That is
not sufficient under United States v. Andrews, supra. 
Accordingly, I dissent.
     Newbern, J., joins.