☢ test - Í

State v. Hudson, 293 Ga. 656, 748 S.E.2d 910 (September 23, 2013). Reversing 318 Ga.App. 54, 733 S.E.2d 360 (2012), and overruling Anthony v. Hopper, 235 Ga. 336, 337–338(1), 219 S.E.2d 413 (1975); “whether a new sentence, imposed after the defendant's initial sentence has been vacated, constitutes a harsher sentence and thereby triggers a presumption of vindictiveness under North Carolina v. Pearce, 395 U.S. 711 (89 S.Ct. 2072, 23 L.Ed.2d 656) (1969)” is determined by considering the aggregate sentence rather than the “count-by-count” approach adopted in Anthony . Here, defendant was originally convicted of aggravated sexual battery and child molestation, but Court of Appeals held that the offenses should have merged. On remand, the trial court resentenced defendant on just child molestation. The new sentence was greater than the original child molestation sentence, but less than the original sentence in the aggregate. On second appeal, the Court of Appeals found the sentence to be presumptively vindictive, based on the Anthony v. Hopper count-by-count approach, but urged the Supreme Court to reconsider that method. “As noted by the Adams [July 12, 2010, below] plurality, judges considering multiple related counts stemming from a single course of conduct typically craft sentences on the various counts as part of an overall sentencing scheme. Adams, 287 Ga. at 517– 518(2). Where that scheme unravels due to elimination of some of the original counts, the judge should be given a wide berth to fashion a new sentence that accurately reflects the gravity of the crimes for which the defendant is being resentenced. [ United States v. Campbell, 106 F.3d 64, 67 (5 th Cir., 1997) (articulating reasons for adopting aggregate approach)]. A rule presuming vindictiveness only where the subsequent sentence is more severe in the aggregate affords the judge the appropriate level of discretion in resentencing under these circumstances.” Adams v. State, 287 Ga. 513, 696 S.E.2d 676 (July 12, 2010). Physical precedent only ; one justice concurs in judgment only, three dissent. Affirms 299 Ga.App. 39, 42(4) (681 S.E.2d 725) (2009). 1. Adopts “aggregate approach,” rather than a count-by-count approach, to determine whether a revised sentence has been increased, for purposes of deciding whether a presumption of vindictiveness applies to resentencing. Here, trial court granted defendant’s motion for new trial, holding that convictions for child molestation and aggravated sodomy should have merged, and resentenced defendant. Prior sentence: 20 years on each charge, plus 20 years on enticing a child, for a total of 60 years. New sentence: 30 years on aggravated sodomy plus 20 years for enticing a child, for a total of 50 years. “Due to real world considerations and the minimal likelihood of vindictiveness, we hold that the [ North Carolina v. Pearce, 395 U.S. 711 (89 S.Ct. 2072, 23 L.Ed.2d 656) (1969)] presumption of vindictiveness is not triggered unless the new sentence, in the aggregate, is more severe.” 1. No presumption of vindictiveness where resentencing follows judge’s own grant of motion for new trial rather than reversal on appeal. Based on Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986), which “Court stated that where the trial court itself concludes that an error has been made and grants a motion for new trial, there exists ‘no basis for a presumption of vindictiveness.... “(U)nlike the judge who has been reversed,” the trial judge here had “no motivation to engage in self-vindication.” [Cit.]’” Hines, Hunstein and Benham dissent: “The ‘count-by-count’ methodology is consistent with the general rule of Georgia criminal law ‘that when individual acts are prohibited, each act is punished separately.’ Pryor v. State, 238 Ga. 698, 700(1) (234 S.E.2d 918) (1977), disapproved on other grounds in Montes v. State, 262 Ga. 473, 475(1) (421 S.E.2d 710) (1992); Russell v. State, 243 Ga.App. 378, 382(5) (532 S.E.2d 137) (2000).” Noted as physical precedent only, recognizing count-by-count approach as still binding, see Hudson (October 17, 2012), above. Frazier v. State, 302 Ga.App. 346, 691 S.E.2d 247 (February 12, 2010). Appeal dismissed; trial court properly denied defendant’s untimely motion to vacate illegal sentence, as sentence was not shown to be illegally motivated by judicial vindictiveness. Defendant’s original conviction for child molestation was reversed on appeal; prior to re-trial, defendant was convicted on three other counts of child molestation in another county. On re-trial, trial court considered the other new convictions and imposed greater sentence than originally imposed. Court of Appeals finds no abuse of discretion: “‘There is no absolute constitutional bar to imposing a more severe sentence upon resentencing, but vindictiveness must not be the motivating force behind the increased sentence. North Carolina v. Pearce, 395 U.S. 711 (89 S.Ct. 2072, 23 L.Ed.2d 656) [1969]. Pearce set forth standards for determining the constitutionality of the imposition of a more severe penalty upon resentencing by the court after reconviction following a successful appeal. Pearce requires that the court must include in the record an affirmative statement of the reasons underlying the decision to increase the punishment upon resentencing. Those reasons should in fact support the imposition of the harsher penalty.’ Anthony v. Hopper, 235 Ga. 336, 337-338(1) (219 S.E.2d 413) (1975). … ‘“Consideration of a criminal conviction obtained in the interim between an original sentencing and a sentencing after retrial is manifestly legitimate. This amply rebuts any presumption of vindictiveness.’ Wasman v. United State, 468 U.S. 559, 569 (104 S.Ct. 3217; 82 L.Ed.2d 424) (1984).” Schlanger v. State, 297 Ga.App. 785, 678 S.E.2d 190 (May 12, 2009). Trial court erred in increasing sentence after appeal without finding proper grounds to do so, and on apparently-improper grounds. “[W]hen a trial court imposes a greater sentence at resentencing, ‘[d]ue process of law ... requires that vindictiveness ... must play no part in the sentence