352 December 6, 2023 No. 633

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

SHREE KRISHNA SANGROLLA,

Defendant-Appellant.

Multnomah County Circuit Court

16CR37625; A177852

Benjamin N. Souede, Judge.

Submitted October 27, 2023.

Ernest G. Lannet, Chief Defender, Criminal Appellate 

Section, and Meredith Allen, Deputy Public Defender, Office 

of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Jonathan N. Schildt, Assistant 

Attorney General, filed the brief for respondent.

Before Tookey, Presiding Judge, and Egan, Judge, and 

Kamins, Judge.

TOOKEY, P. J.

Affirmed.
Cite as 329 Or App 352 (2023) 353

TOOKEY, P. J.

After remand from this court for resentencing, 

defendant appeals a judgment of conviction for two counts of 

first-degree sexual abuse, ORS 163.427, raising two assignments of error.

In his first assignment of error, defendant contends 

that we must reverse and remand for resentencing, because 

the sentencing court’s resentencing on remand was vindictive in violation of defendant’s right to due process. For the 

reasons that follow, we reject defendant’s first assignment of 

error on the merits. In his second assignment of error, defendant contends that the sentencing court erred in imposing 

restitution outside of his presence. We reject defendant’s second assignment of error as moot.1

Consequently, we affirm.

BACKGROUND

The material facts are both procedural and undisputed. As relevant to the issues on appeal, this case concerns three counts related to defendant’s alleged conduct 

against a single victim: two counts of first-degree sexual 

abuse (Counts 3 and 7) and one count of first-degree rape 

(Count 5).2

 After a jury trial, the jury returned a nonunanimous guilty verdict on Count 5 and unanimous guilty verdicts on Counts 3 and 7.

1 The sentencing court stated during defendant’s resentencing hearing that 

it did not intend to impose restitution; however, it included a restitution award in 

the judgment of conviction. During the pendency of this appeal, the sentencing 

court became aware of the restitution term contained in the judgment and, on its 

own motion, issued an amended judgment pursuant ORS 137.172, excising the 

restitution award. See ORS 137.172(1) (“The trial court retains authority after 

entry of judgment of conviction or a supplemental judgment, including during the 

pendency of an appeal, to modify the judgment, including the sentence, to correct 

any arithmetic or clerical errors or to delete or modify any erroneous term in the 

judgment.”).

2 Defendant was charged with two counts of first-degree rape (Counts 1 and 

5), two counts of first-degree unlawful sexual penetration (Counts 2 and 6), and 

four counts of first-degree sexual abuse (Counts 3, 4, 7, and 8). Defendant waived 

his right to a jury trial as to Counts 1 and 2, and the court found him not guilty 

of those counts. A jury found defendant guilty on Counts 3, 4, 5, 7, and 8, and not 

guilty on Count 6. The court merged the verdict on Count 4 into the verdict on 

Count 3. It also merged the verdict on Count 8 into the verdict on Count 7, leaving 

the counts at issue in this appeal, namely, Counts 3, 5, and 7.
354 State v. Sangrolla

Initially, the sentencing court sentenced defendant 

to a total of 124 months’ imprisonment: On Count 3, the 

sentencing court sentenced defendant to 75 months’ imprisonment, but ordered 24 months to be served consecutively to 

the sentence on Count 5; on Count 5, the sentencing court 

sentenced defendant to 100 months’ imprisonment; and on 

Count 7, the sentencing court sentenced defendant to 75 

months’ imprisonment, to be served concurrently with the 

sentence on Count 5.

Defendant appealed the resulting judgment. On 

appeal, we reversed and remanded the conviction on Count 

5, because the verdict on that count was nonunanimous. 

State v. Sangrolla, 309 Or App 316, 317, 481 P3d 411, rev den, 

368 Or 514 (2021). We remanded for resentencing on Counts 

3 and 7 and otherwise affirmed. Id.

On remand, the sentencing court held a resentencing hearing on Counts 3 and 7 before Count 5 was adjudicated or dismissed. During that hearing, defendant argued 

that in proceeding with resentencing on Counts 3 and 7 

prior to the dismissal or adjudication of Count 5, the sentencing court would violate the Due Process Clause of the 

Fourteenth Amendment. The sentencing court disagreed 

and resentenced defendant on Counts 3 and 7 to a total of 

111 months’ imprisonment. Both of those counts carried a 

mandatory minimum sentence under ORS 137.700 of 75 

months’ imprisonment, and the sentencing court sentenced 

defendant to 75 months’ imprisonment on each. However, 

with regard to Count 7, the sentencing court sentenced 

defendant to serve 36 months consecutively to Count 3, and 

the remaining 39 months concurrently with Count 3.

In explaining how it reached that sentence, the 

sentencing court noted that “without the Rape conviction”—i.e., without Count 5, which this court had reversed 

and remanded—the conduct for which it was sentencing 

defendant was different than that at issue during the original sentencing. The sentencing court, therefore, did not 

believe “that the total amount [of] time in custody imposed” 

during defendant’s original sentencing was appropriate. 

Nevertheless, it recognized that the “conviction on Count 7 

demonstrates that this victim was subject to sexual abuse 
Cite as 329 Or App 352 (2023) 355

on multiple occasions by this defendant” and that, therefore, 

the court believed a sentence “that includes consecutive 

time” was appropriate “to account for that this victim was 

victimized on multiple occasions.”

Defendant then requested that the sentencing court 

set a date by which the state would inform defendant and 

the court as to how it intended to proceed on Count 5. The 

court set a date approximately two weeks out, at which time 

the state moved to dismiss Count 5. The court granted the 

motion and dismissed Count 5 without prejudice, noting 

that “the victim does not wish to prosecute [Count 5] at this 

time, and that the ends of justice will best be served by the 

dismissal.”

The sentencing court then entered a judgment dismissing Count 5 and sentencing defendant to 111 months’ 

imprisonment on Counts 3 and 7. Defendant appeals that 

judgment.

ANALYSIS

As noted above, in his first assignment of error, 

defendant contends that we must reverse his sentence and 

remand for resentencing, because the sentence on remand 

was vindictive in violation of defendant’s right to due process. Reviewing for legal error, State v. Bradley, 281 Or App 

696, 700, 383 P3d 937 (2016), rev den, 361 Or 645 (2017), we 

disagree.

The Due Process Clause of the Fourteenth 

Amendment to the United States Constitution provides that 

“[n]o state shall *** deprive any person of life, liberty, or 

property without due process of law.” “Due process of law 

requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no 

part in the sentence he receives after a new trial.” Bradley, 

281 Or App at 701 (internal quotation marks and ellipses 

omitted).

A presumption that a sentence imposed on resentencing was based on vindictive motives in violation of due 

process “applies only when a sentencing court resentences 

a defendant to a longer or otherwise more severe total 
356 State v. Sangrolla

sentence.” Id. (internal quotation marks omitted; emphasis in Bradley); see also State v. Febuary, 361 Or 544, 565, 

396 P3d 894 (2017) (“[T]he correct approach” to determine 

whether a presumption of vindictiveness applies on resentencing “is to compare the aggregate original sentence to 

the aggregate sentence on remand.”). A presumption of vindictiveness on resentencing does not apply where, as here, a 

defendant’s aggregate sentence is less on resentencing than 

the aggregate sentence that was originally imposed by the 

sentencing court. Febuary, 361 Or at 565 (no presumption 

of an “improper motive on the part of the trial judge” where 

defendant’s initial sentence was “170 months’ imprisonment 

and 60 months’ probation, and his subsequent sentence was 

87 months’ imprisonment”). Where a presumption of vindictiveness does not apply, a defendant “must affirmatively 

prove actual vindictiveness” to establish a vindictive sentence in violation of their due process rights. Bradley, 281 

Or App at 701 (internal quotation marks omitted).

As we understand his argument, relying on Bradley, 

defendant contends that actual vindictiveness is established 

where, as here, a sentencing court imposes a “longer sentence on the affirmed counts” (Counts 3 and 7) “before the 

reversed count” (Count 5) is “disposed of.”3

 We disagree that 

Bradley can be read as broadly as defendant contends.

In Bradley, the defendant was originally sentenced to 

a total of 215 months’ imprisonment based on his convictions 

for conduct against two victims, C and Z, with 115 months 

attributable to his conduct against Z, and the remainder 

attributable to his conduct against C. 281 Or App at 698. 

On appeal, we reversed and remanded the convictions with 

respect to C because of evidentiary error, affirmed the convictions with respect to Z, and remanded for resentencing. Id.

At the defendant’s resentencing, while the charges 

related to C were still pending, the sentencing court imposed 

3 We do not understand defendant to be arguing that we should expand the 

presumption of vindictiveness to the facts of this case. But if he is, that argument 

is undeveloped, and we will not address it. See Beall Transport Equipment Co. v. 

Southern Pacific Trans., 186 Or App 696, 700 n 2, 64 P3d 1193, adh’d to as clarified on recons, 187 Or App 472, 68 P3d 259 (2003) (“[I]t is not this court’s function 

to speculate as to what a party’s argument might be” or “to make or develop a 

party’s argument when that party has not endeavored to do so itself.”).
Cite as 329 Or App 352 (2023) 357

a total sentence of 183 months’ imprisonment for defendant’s 

conduct against Z. Id. at 700. The court explained that in 

imposing the sentence on remand it was “entitled to consider *** the sexual abuse of [C] whose cases were reversed 

and remanded.” Id. at 699. It reasoned that “the Court often 

hears from victims of crimes [when the perpetrator was] 

never convicted or never prosecuted, but the Court can consider that other abuse” in fashioning a sentence. Id. It also 

stated:

“I think that it hasn’t been put on the record and I know 

[the state] doesn’t want to go there, but as far as the record 

goes there is a strong possibility in this case that [the 

defendant] may not even have to be re-prosecuted for [the 

crimes against C]. The state might elect not to prosecute 

[the defendant] on [C’s] case. They might consider this sentence sufficient. But it doesn’t mean I can’t also consider 

that in making my sentence.”

Id. at 700-01.

Following the defendant’s resentencing, on the 

state’s motion, the court dismissed the counts that had been 

reversed—i.e., those concerning C. Id. at 700. The defendant 

appealed, arguing, among other points, “that the trial court 

erred by imposing a longer sentence [on the counts regarding Z at] resentencing.” Id. We agreed. Id. at 704.

We explained that the court’s conclusion that it was 

“‘entitled to consider the sexual abuse of [C] whose cases 

were reversed and remanded’ because of the ‘strong possibility’ that ‘the State might elect not to prosecute him on 

the other child’s case” was “problematic.” Id. at 703 (brackets omitted). That was so because the court, in considering 

the conduct underlying the reversed counts in its sentencing decision, effectively relieved the state of its “burden 

to prove the reversed counts beyond a reasonable doubt,” 

which is “the essence of punishing defendant for his success on appeal.” Id. Further, to “the extent that the court 

on resentencing after an appeal relies on an impermissible 

consideration in increasing the sentence imposed on particular counts, the defendant establishes that the sentence 

is vindictive.” Id. Thus, because in Bradley, the trial court 

“based its decision to increase the sentence for the affirmed 
358 State v. Sangrolla

counts on the reversed counts that were still pending prosecution, the trial court exceeded the applicable limits under 

the Due Process Clause of the Fourteenth Amendment” and 

the defendant had “affirmatively proved actual vindictiveness.” Id. at 704.

Defendant is correct that this case bears some similarities to Bradley. In both cases, the court resentenced a 

defendant to longer sentences on particular counts (here, 

Counts 3 and 7, and in Bradley, the counts concerning Z). In 

both cases, during resentencing, a count or counts that we 

had previously reversed were pending (here, Count 5, and 

in Bradley, the counts concerning C). And, in both cases, 

on a motion by the state, the count or counts that we had 

reversed were dismissed after resentencing (here, Count 5, 

and in Bradley, the counts concerning C).

However, the distinctions between the cases are 

more significant than the similarities. As detailed above, 

in Bradley, the sentencing court expressly considered the 

“the sexual abuse of [C] whose cases were reversed and 

remanded,” which effectively relieved the state of its “burden to prove [that conduct] beyond a reasonable doubt,” and 

that was the “essence of punishing defendant for his success 

on appeal.” Id. at 703.

In contrast, in this case, when resentencing defendant, the sentencing court did not consider the conduct 

underlying Count 5. Instead, as noted above, in its discussion of Count 7, the sentencing court took note that the 

state had proven beyond a reasonable doubt that defendant 

had sexually abused the victim on multiple occasions. As 

a result, the sentencing court determined that a sentence 

regarding Count 7 that included consecutive time to Count 

3 was appropriate to account for that conduct.

That is, in this case, the sentencing court did not 

consider the conduct underlying Count 5 that had been 

reversed and remanded, and it, therefore, did not relieve the 

state of meeting its burden of proof with respect to Count 5 

if it had decided to reprosecute Count 5 once this court sent 

the case back to the sentencing court.
Cite as 329 Or App 352 (2023) 359

Consequently, unlike the defendant in Bradley, 

defendant in this case has not “affirmatively proved actual 

vindictiveness.” Id. at 704. Put plainly, defendant has not 

pointed to any “impermissible consideration” relied on by 

the sentencing court in this case as the defendant in Bradley

did. Id. Therefore, we affirm.

Affirmed.