Febuary v. OregonAnnotate this Case
Defendant argued his due process rights were violated when the trial judge initially imposed a sentence of 60 months’ probation on a misdemeanor conviction and on remand imposed a sentence of 12 months’ imprisonment for the same misdemeanor. The sentence was for one conviction out of several that arose out of the same criminal incident. On the other convictions, his initial sentence included 170 months’ imprisonment; on remand, his sentence for the single other conviction was 75 months’ imprisonment. Defendant argued that, in increasing the sentence on his misdemeanor conviction, the judge violated the rule against vindictiveness set out in North Carolina v. Pearce, 395 US 711 (1969) and Oregon v. Partain, 239 P3d 232 (2010). Defendant argued that a presumption of vindictiveness should have applied in his case because there was a “reasonable likelihood” of actual vindictiveness, based on the fact that the same judge imposed the initial and subsequent sentences, and the fact that when analyzed under the remainder aggregate approach, defendant’s second sentence was “more severe” than the first. The Oregon Supreme Court concluded that the mere fact that the same judge presides over an initial and subsequent proceeding does not warrant the presumption of vindictiveness. The Court also rejected defendant’s claim that his later sentence was “more severe” because the trial increased the sentence for one of his convictions: “the correct approach is to compare the aggregate original sentence to the aggregate sentence on remand.” Because defendant’s sentence on remand was not “more severe” than his initial sentence, there was no presumption of an improper motive on the part of the trial judge. Defendant presented no other evidence that the trial court acted vindictively or out of an improper motive when sentencing him on remand.