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State of Nebraska, appellee, v.

Juan E. Castaneda, appell

___ N.W.2d ___

Filed January 13, 2017. No. S-16-273.

1. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

2. Judges: Words and Phrases. A judicial abuse of discretion exists when 

the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

3. Sentences: Due Process: Appeal and Error. Whether the district 

court’s resentencing of a defendant following a successful appeal violates the defendant’s due process rights presents a question of law.

4. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court resolves the questions independently of the conclusion 

reached by the lower court.

5. Sentences. When imposing a sentence, a sentencing judge should consider the following factors related to the defendant: (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) 

past criminal record or record of law-abiding conduct, (6) motivation 

for the offense, (7) nature of the offense, and (8) amount of violence 

involved in the commission of the crime.

6. Criminal Law: Sentences: Minors: Aggravating and Mitigating 

Circumstances. Neb. Rev. Stat. § 28-105.02(2) (Reissue 2016) includes 

a nonexhaustive list of mitigating factors that a sentencing court must 

take into consideration when sentencing a juvenile for a Class IA 

felony.

7. Sentences. In considering a sentence, a court is not limited in its discretion to any mathematically applied set of factors.

8. ____. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/13/2017 09:09 AM CST
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demeanor and attitude and all the facts and circumstances surrounding 

the defendant’s life.

9. ____. It is within a trial court’s discretion to direct that sentences imposed 

for separate crimes be served either concurrently or consecutively.

10. Constitutional Law: Minors: Sentences. Life imprisonment without 

the possibility of parole for juveniles convicted of nonhomicide offenses 

is unconstitutional; such juvenile offenders must be given some meaningful opportunity to obtain release based on demonstrated maturity and 

rehabilitation.

11. Constitutional Law: Homicide: Minors: Sentences. There is no categorical bar against life sentences without parole for juveniles convicted of homicide offenses; instead, the sentencing court must consider 

specific, individualized factors before handing down a sentence of life 

imprisonment without parole for a juvenile.

12. Due Process: New Trial: Convictions: Sentences. 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.

13. Sentences: Presumptions: Appeal and Error. There is no presumption 

of vindictiveness when a sentence is increased after a successful appeal 

of the prior conviction if a different judge or jury handed down the second, harsher sentence.

14. Sentences: Presumptions: Proof. When the presumption of vindictiveness is not applied, the burden remains with the defendant to prove 

actual vindictiveness.

Appeal from the District Court for Douglas County: Pete

C. Bataillon, Judge. Affirme

Thomas C. Riley, Douglas County Public Defender, and 

Annie O. Hayden for appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust 

for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel,

Kelch, and Funke,

Funke, 

INTRODUCTION

In October 2010, the appellant, Juan E. Castaneda, was 

convicted by a jury of two counts of first degree felony 
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murder, one count of attempted second degree murder, one 

count of attempted robbery, one count of criminal conspiracy, 

and three counts of use of a deadly weapon to commit a 

felony. He was sentenced as follows: life imprisonment for 

each first degree murder; 10 to 20 years’ imprisonment for 

attempted second degree murder, to be served concurrently 

with all; 10 to 15 years’ imprisonment for attempted robbery, to be served concurrently with all but its respective 

weapon conviction; 10 to 15 years’ imprisonment for criminal 

conspiracy, to be served concurrently with all; and 10 to 15 

years’ imprisonment for each weapon conviction, to be served 

consecutively only with each respective first degree murder or 

attempted robbery conviction.

On direct appeal, we affirmed Castaneda’s convictions, 

vacated all his sentences, and remanded the cause for resentencing.1

 We vacated Castaneda’s life sentences under the 

U.S. Supreme Court’s decision in Miller v. Alabama.

2

 We also 

vacated his other sentences because the sentencing court committed plain error by ordering Castaneda’s weapon sentences 

to run concurrently with other sentences, instead of consecutively with all other sentences as required by law.3

Following a full evidentiary hearing and arguments, 

Castaneda was resentenced in accordance with Nebraska statutes. Castaneda appeals his resentencing. We affirm.

BACKGROUND

The events underlying Castaneda’s eight convictions and 

sentences involve three shootings that occurred in three separate locations in Omaha, Nebraska, within an hour. In our 

opinion on Castaneda’s direct appeal, we set forth the facts of 

the case in detail.4

1 See State v. Castaneda, 287 Neb. 289, 842 N.W.2d 740 (2014).

2 Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 

(2012).

3 See Neb. Rev. Stat. § 28-1205(3) (Reissue 2016).

4 See Castaneda, supra note 1.
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The individuals responsible for the crimes were Edgar 

Cervantes, Eric Ramirez, and Castaneda. The State entered into 

a plea agreement with Cervantes to dismiss the murder charges 

against him in exchange for his testimony.

According to Cervantes, in November 2008, he asked 

Ramirez if he wanted “to go rob some people.” That same 

evening, Castaneda accompanied Cervantes and Ramirez when 

they left a party to give Jacob Shantz a ride home. While 

Cervantes was driving to Shantz’ residence, he removed a gun 

from under his seat and gave it to Ramirez.

After dropping Shantz off at his home, the three men drove 

to 13th and Dorcas Streets in Omaha. While at that location, 

Cervantes stayed in the vehicle and Ramirez and Castaneda 

exited the vehicle. Ramirez and Castaneda approached two 

males, later identified as Mark and Charles McCormick. 

According to the McCormicks, the two men, one of them 

armed, came up to them as they were leaving their cousin’s residence. The men demanded money but retreated 

after Charles threatened them with a “piece of wood” or 

“tree stump.”

Shortly thereafter, at about 10:45 p.m., all three men drove 

to 16th and Dorcas Streets where they encountered Luis Silva 

inside his vehicle outside of his home. Ramirez and Castaneda 

approached Silva to rob him. Castaneda pulled Silva from his 

vehicle, and Ramirez fatally shot him.

Then, at about 11 p.m., Cervantes, Ramirez, and Castaneda 

drove to 50th Street and Underwood Avenue where they 

observed a man, later identified as Charles Denton, walk 

up to an automatic teller machine. When Denton saw two 

men approaching, he returned to his vehicle and started to 

drive away with his passenger. The two men, Ramirez and 

Castaneda, ran toward Denton’s vehicle, and one reached the 

driver’s side window and demanded money. The man also 

fired his gun at the vehicle, striking Denton. Denton survived 

his injuries.

The three men then drove south until they reached 52d and 

Leavenworth Streets. At that location, they saw Tari Glinsmann 
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leaving a gas station. Cervantes stopped the vehicle, and 

Ramirez and Castaneda got out. According to Cervantes, 

Castaneda pulled Glinsmann from her vehicle and Ramirez 

fatally shot her. The statement about Glinsmann’s murder was 

supported by video evidence and Castaneda’s handprint on the 

hood of her car. While Cervantes said that Ramirez told him 

Glinsmann had no money, she was found with cash, jewelry, 

and the keys to the gas station, where she had worked and had 

just finished her shift.

At the time of the shootings, Castaneda was 15 years 11 

months old. As previously mentioned, Castaneda was convicted of two counts of first degree felony murder, one count 

of attempted second degree murder, one count of attempted 

robbery, one count of criminal conspiracy, and three counts 

of use of a deadly weapon to commit a felony. Castaneda was 

sentenced to life imprisonment for each first degree murder 

and 10 to 20 years’ imprisonment for attempted murder, with 

each sentence to run concurrently with the other. He was further sentenced to 10 to 15 years’ imprisonment for attempted 

robbery, to be served concurrently with all but its respective 

weapon conviction; 10 to 15 years’ imprisonment for criminal 

conspiracy, to be served concurrently with all; and 10 to 15 

years’ imprisonment for each weapon conviction, to be served 

consecutively only with each respective first degree murder or 

attempted robbery conviction.

On direct appeal, we affirmed Castaneda’s convictions.5

While the appeal was pending, however, the U.S. Supreme 

Court decided Miller.

6

 We rejected the State’s argument that 

Miller should not apply to Castaneda’s life in prison sentences, because Nebraska’s penalty statute did not contain 

the qualifier “without parole.” We held that a sentence of 

life in prison in Nebraska essentially contains no possibility 

of parole, because parole is available only upon a sentence’s 

5 See Castaneda, supra note 1.

6 See Miller, supra note 2.
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being commutated, which—as “‘an ad hoc exercise of executive clemency’”7

—is a distinctly different concept than parole 

as a matter of law. Accordingly, we vacated Castaneda’s life 

sentences for first degree felony murder. We also vacated 

his other sentences, because the sentencing court committed 

plain error by ordering Castaneda’s use of a deadly weapon 

to commit a felony sentences to run concurrently with his 

other sentences, instead of consecutively with all other sentences as required by § 28-1205(3). We remanded the cause 

for resentencing.

Upon remand, the cause was assigned to a different district 

judge, as the original judge had retired. Before resentencing, 

a full evidentiary resentencing hearing was held. At that hearing, Castaneda called three witnesses: Beverly Shields, a juvenile detention specialist at the Douglas County Youth Center 

at the time Castaneda was housed there prior to trial; Dr. Kirk 

Newring, a psychologist who interviewed Castaneda shortly 

before resentencing; and Dr. Colleen Conoley, an adolescent 

neuropsychologist who completed an evaluation on Castaneda 

in 2014.

Shields testified that Castaneda was a model prisoner and 

“was the best kid [she] ever worked with” during her employment at the youth center. Newring testified as to the prison 

culture and the effects of segregation on a person. Conoley 

testified about Castaneda’s current mental status, having been 

diagnosed as schizophrenic; the maturation process of the adolescent brain; and her belief that Castaneda is not a high risk to 

reoffend “at this point of his development.”

Additionally, a presentence report was ordered for sentencing. The presentence report included, in part, the following 

information: Conoley’s evaluation of Castaneda; the police 

reports of the crimes; letters from the victims’ friends and 

families; Castaneda’s age at the time of his crimes; Castaneda’s 

prior criminal history of graffiti, theft by unlawful taking, 

7 See Castaneda, supra note 1, 287 Neb. at 313, 842 N.W.2d at 758.
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shoplifting, and disorderly conduct; Castaneda’s overall grade 

point average from seventh to ninth grades of 3.58, high 

school diploma, and paralegal studies certificate; Castaneda’s 

involvement in the “Must Be Criminal security threat group”; 

Castaneda’s score as a high risk to reoffend on the “LS/CMI,” 

a risk/needs assessment tool; a summary of Castaneda’s 56 

misconduct reports from his incarceration: 45 reports between 

February 4, 2011, and January 21, 2012, and 11 reports between 

September 14, 2012, and March 24, 2015; and Castaneda’s 

probation officer’s recommendation that Castaneda be incarcerated “for a very long time to come.”

At the resentencing hearing, the court heard arguments by 

counsel for Castaneda and the State. The court pronounced 

the following prison sentences: 40 to 50 years for each first 

degree murder conviction, 10 to 10 years for attempted second 

degree murder, 5 to 5 years for the attempted robbery, 5 to 5 

years for criminal conspiracy, and 5 to 5 years for each weapon 

conviction. The criminal conspiracy and attempted robbery 

sentences were ordered to run concurrently with each other and 

with the attempted murder sentence. All other sentences were 

ordered to run consecutively to each other. The total combined 

sentence was 105 to 125 years’ imprisonment. Castaneda was 

given credit for 2,652 days served. Castaneda appeals.

ASSIGNMENTS OF ERROR

Castaneda assigns, restated, that the district court erred in 

imposing (1) excessive sentences, (2) an aggregate de facto 

life sentence prohibited under due process and the Eighth 

Amendment, and (3) more severe sentences than Castaneda 

originally received.

STANDARD OF REVIEW

[1,2] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by 

the trial court.8 A judicial abuse of discretion exists when 

8 State v. Mantich, ante p. 407, ___ N.W.2d ___ (2016).
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the reasons or rulings of a trial judge are clearly untenable, 

unfairly depriving a litigant of a substantial right and denying 

just results in matters submitted for disposition.9

[3,4] Whether the district court’s resentencing of a defendant following a successful appeal violates the defendant’s due 

process rights presents a question of law.10 When reviewing 

questions of law, an appellate court resolves the questions independently of the conclusion reached by the lower court.11

ANALYSIS

Excessive Sen

Castaneda argues that his aggregate sentence of 105 to 

125 years’ imprisonment is excessive because the court 

failed to adequately consider the required sentencing factors. 

Specifically, he alleges that the court did not give adequate 

consideration to his age. Castaneda also argues the sentencing 

was tailored only to his crimes rather than to him as an individual, as required by State v. Harrison.

12 Finally, he contends that 

the court did not give sufficient consideration to the aggregate 

length of the sentences; this argument is essentially the same as 

Castaneda’s second assignment of error that the court imposed 

an aggregrate de facto life sentence.

[5,6] There is no contention that Castaneda’s sentences 

were outside the permissible statutory ranges. Accordingly, 

the question is whether the court abused its discretion in 

the sentences it imposed upon Castaneda. We have stated 

that when imposing a sentence, a sentencing judge should 

consider the following factors related to the defendant: (1) 

age, (2) mentality, (3) education and experience, (4) social 

and cultural background, (5) past criminal record or record 

9 Id.

10 State v. Miller, 284 Neb. 498, 822 N.W.2d 360 (2012).

11 See State v. Rothenberger, 294 Neb. 810, 885 N.W.2d 23 (2016).

12 See State v. Harrison, 255 Neb. 990, 1005, 588 N.W.2d 556, 565 (1999) 

(“a sentence should fit the offender and not merely the crime”).
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of law-abiding conduct, (6) motivation for the offense, (7) 

nature of the offense, and (8) amount of violence involved in 

the commission of the crime.13 Additionally, Neb. Rev. Stat. 

§ 28-105.02(2) (Reissue 2016), which was amended by the 

Legislature after Miller, includes the following nonexhaustive 

list of mitigating factors that a sentencing court must also take 

into consideration when sentencing a juvenile for first degree 

murder, a Class IA felony:

(a) The convicted person’s age at the time of the 

offense;

(b) The impetuosity of the convicted person;

(c) The convicted person’s family and community 

environment;

(d) The convicted person’s ability to appreciate the 

risks and consequences of the conduct;

(e) The convicted person’s intellectual capacity; and

(f) The outcome of a comprehensive mental health 

evaluation of the convicted person conducted by an 

adolescent mental health professional licensed in this 

state. The evaluation shall include, but not be limited to, 

interviews with the convicted person’s family in order 

to learn about the convicted person’s prenatal history, 

developmental history, medical history, substance abuse 

treatment history, if any, social history, and psychological history.14

[7,8] In considering a sentence, a court is not limited in 

its discretion to any mathematically applied set of factors.15

The appropriateness of a sentence is necessarily a subjective 

judgment and includes the sentencing judge’s observation of 

the defendant’s demeanor and attitude and all the facts and 

circumstances surrounding the defendant’s life.16

13 See State v. Carpenter, 293 Neb. 860, 880 N.W.2d 630 (2016).

14 See Castaneda, supra note 1.

15 See State v. Raatz, 294 Neb. 852, 885 N.W.2d 38 (2016).

16 Id.
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We note in the present case that the sentencing judge, in 

fact, considered each of these factors and discussed them at 

the sentencing hearing. The sentencing judge acknowledged 

that he was not the original trial or sentencing judge and, 

instead, relied on the presentence report, evidentiary hearing, 

and arguments of counsel in sentencing Castaneda. The court 

stated that it considered two main factors: the nature of the 

crimes committed and Castaneda’s age when he committed 

the crimes.

The court specifically identified numerous mitigating factors that it considered—including the fact that Castaneda was 

not the shooter, his minimal criminal history, his studiousness, 

and his reasonable behavior as a prisoner. Most significantly, 

the court gave great weight to Castaneda’s age at the time of 

the offense, the impulsivity of the crimes, and the fact that as 

a result of his age, he could not fully appreciate the consequences of his actions.

Conversely, the court also gave significant weight to the 

nature of the offenses Castaneda was convicted of and the 

impact it had on the victims’ friends and families. The court 

specifically discussed that because of Castaneda’s age, it 

wanted to assume that he was naive to the violence that would 

occur that night; however, the court could not make such 

an assumption because of Castaneda’s continued participation 

after being presented with opportunities to remove himself 

from the crime spree as the violence escalated. Ultimately, 

the court concluded that the several and disconnected crimes 

warranted individual punishment by running his sentences consecutively. The court’s reasoning reflects sentences tailored to 

both Castaneda and his crimes.

The sentencing range for Castaneda’s first degree murder 

convictions, Class IA felonies, is 40 years to life in prison.17

17 § 28-105.02(1). See Castaneda, supra note 1 (holding that sentencing 

changes to penalty provisions for Class IA felonies committed by persons 

under 18 years of age, enacted by 2013 Neb. Laws, L.B. 44, § 2, codified 

as § 28-105.02, should apply to Castaneda’s resentencing).
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Castaneda’s convictions for attempted murder in the second 

degree, criminal conspiracy, and use of a deadly weapon to 

commit a felony are each Class II felonies subject to a sentence of 1 to 50 years’ imprisonment,18 and attempted robbery 

is a Class III felony that, when committed, was subject to a 

sentence of 1 to 20 years’ imprisonment, a $25,000 fine, or 

both.19 Castaneda was resentenced as set forth above. Each of 

his sentences were on the low end of their respective statutory 

sentencing ranges. Further, the attempted robbery and criminal 

conspiracy sentences were made concurrent with the attempted 

second degree murder sentence.

[9] The court gave sufficient consideration to each of the 

relevant factors, determining that leniency was warranted in 

Castaneda’s sentences, evidenced by each being on the low 

end of the potential range. But, the court determined that both 

murders and the attempted murder were each distinct and separate incidents, offering Castaneda the choice to participate or 

flee at each scene. Under our prior holdings, it is within a trial 

court’s discretion to direct that sentences imposed for separate crimes be served either concurrently or consecutively.20

Therefore, Castaneda’s separate decision to commit each crime 

warranted a distinct punishment for each. In light of these 

facts, we cannot conclude that the district court abused its discretion in sentencing Castaneda.

De Facto Life 

In Castaneda’s second assignment of error, he argues that the 

aggregate of his sentences constitutes a de facto life sentence. 

Further, he contends that this aggregate sentence does not provide a “meaningful opportunity for release,” under Miller,

21

18 See Neb. Rev. Stat. § 28-105 (Supp. 2015).

19 See § 28-105 (Reissue 2008).

20 State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015).

21 Miller, supra note 2.
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and that the court failed to make a finding he was “[i]rreparably [c]orrupt.”22

In Miller, the U.S. Supreme Court held that a mandatory 

life sentence without parole for those under the age of 18 at 

the time of their crimes violated the Eighth Amendment’s prohibition on cruel and unusual punishment.23 Miller went on to 

hold that although a sentencer could still institute a sentence of 

life imprisonment in homicide cases, the sentencing court was 

required to take into account how children are different, and 

how those differences counsel against irrevocably sentencing 

them to a lifetime in prison.24

In State v. Mantich,

25 the defendant, Douglas M. Mantich, a 

juvenile at the time of his crimes, was convicted of first degree 

felony murder and use of a firearm to commit a felony. When 

Mantich was sentenced, Nebraska’s statutes provided that a 

juvenile convicted of first degree murder was subject to mandatory life imprisonment. Accordingly, Mantich was initially 

sentenced to life imprisonment for the first degree murder 

conviction and 5 to 20 years’ imprisonment for the firearm 

conviction, to be served consecutively.26 Mantich appealed, 

and we affirmed Mantich’s convictions and life imprisonment sentence and vacated and remanded his firearm sentence 

for resentencing.27

At the same time we decided Castaneda’s direct appeal,28

we also considered Mantich’s appeal of his motion for postconviction relief.29 In Castaneda’s direct appeal, we held that 

22 Brief for appellant at 26, 28.

23 Miller, supra note 2.

24 Id.

25 State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996).

26 Id.

27 Id.

28 See Castaneda, supra note 1.

29 State v. Mantich, 287 Neb. 320, 842 N.W.2d 716 (2014), cert. denied ___ 

U.S. ___, 135 S. Ct. 67, 190 L. Ed. 2d 229.
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“Nebraska’s sentence of life imprisonment is effectively life 

imprisonment without parole under the rationale of Miller

. . . because it provides no meaningful opportunity to obtain 

release.”30 Accordingly, we vacated Mantich’s life sentence and 

remanded the cause for resentencing.31 After a full evidentiary 

hearing, Mantich was resentenced to 90 to 90 years’ imprisonment for his first degree murder conviction. Mantich appealed.

[10,11] In Mantich’s most recent appeal,32 we addressed 

the issue of Miller and its application, and we determined that 

felony murder is a homicide offense. We also explained that 

in Graham v. Florida,

33 the U.S. Supreme Court held that “life 

imprisonment without the possibility of parole for juveniles 

convicted of nonhomicide offenses was unconstitutional.”34

We noted the Court further held that “such juvenile offenders must be given ‘some meaningful opportunity to obtain 

release based on demonstrated maturity and rehabilitation.’”35

However, we reasoned that in Miller, “the Court declined to 

extend the categorical bar of no life sentences without parole 

to juveniles convicted of homicide.”36 Instead, Miller’s requirement that a juvenile have a meaningful opportunity for release 

required that “‘a sentencer must consider specific, individualized factors before handing down a sentence of life imprisonment without parole for a juvenile.’”37 Accordingly, we 

rejected Mantich’s de facto life sentence argument, “[b]ecause 

under Miller a juvenile defendant may be sentenced to life 

30 Castaneda, supra note 1, 287 Neb. at 313-14, 842 N.W.2d at 758. See, 

also, Mantich, supra note 8.

31 Mantich, supra note 29.

32 Mantich, supra note 8.

33 Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 

(2010).

34 Mantich, supra note 8, ante at 413, ___ N.W.2d at ___.

35 Id., quoting Graham, supra note 33.

36 Id.

37 Id., quoting Mantich, supra note 29.
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imprisonment without parole, [therefore,] it is immaterial 

whether the sentence imposed upon Mantich was a de facto 

life sentence.”38

Here, the court held a full evidentiary hearing concerning 

Castaneda’s resentencing. Before issuing the sentences, the 

court discussed the individualized factors it was required to 

consider and how they impacted its decision. Even assuming, 

without deciding, that a court was required to find a juvenile 

“irreparably corrupt” before issuing him or her a life imprisonment without parole sentence, the court here gave Castaneda 

no such sentence; instead, it sentenced Castaneda on the low 

end of the statutory range for each of his eight convictions. 

Accordingly, Castaneda received the protections required by 

Miller for a juvenile convicted of a homicide offense.

Vindictive Se

In his third assignment of error, Castaneda argues that 

his new sentences are more severe than his original sentences. While he concedes that the length of his sentences has 

decreased, he contends that changing his murder and attempted 

murder sentences from concurrent39 to consecutive made them 

inherently more severe. Accordingly, he argues that his resentencing was presumptively vindictive under North Carolina 

v. Pearce.

40

The State argues that Castaneda’s aggregate sentence is not 

more severe upon resentencing, because he is now eligible for 

parole after 521⁄2 years, when he was originally sentenced to 

life in prison without parole. Further, it contends Castaneda 

38 Id. at 415-16, ___ N.W.2d at ___.

39 See State v. Berney, 288 Neb. 377, 383, 847 N.W.2d 732, 737 (2014) 

(stating that “[u]nless prohibited by statute or unless the sentencing court 

states otherwise when it pronounces the sentences, multiple sentences 

imposed at the same time run concurrently with each other”).

40 North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 

(1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 

S. Ct. 2201, 104 L. Ed. 2d 865 (1989).
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is not entitled to a presumption of vindictiveness, because the 

resentencing judge was not the same judge that sentenced him 

originally. Lastly, the State contends that because Castaneda 

had the burden to prove actual vindictiveness and failed to 

argue actual vindictiveness, his assignment of error is without merit.

[12] We discussed vindictive resentencing most recently in 

State v. Miller.

41 We explained:

“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. And since the fear of such 

vindictiveness may unconstitutionally deter a defendant’s 

exercise of the 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.”42

Accordingly, we recognized that to relieve a defendant of the 

apprehension of vindictiveness, Pearce required that courts 

apply a presumption of vindictiveness whenever a sentence is 

increased after a successful appeal of the prior conviction.

[13,14] However, we also recognized that the U.S. Supreme 

Court has limited this presumption since Pearce to “cases 

which pose a reasonable likelihood that the increased sentence 

is the product of actual vindictiveness.”43 Accordingly, we 

stated: “[The] Court has limited the presumption of vindictiveness to cases that involve the same judge or jury handing 

down both the initial sentence and the second, harsher sentence. . . . [Alternatively, w]hen the presumption of vindictiveness is not applied, the burden remains with the defendant to 

prove actual vindictiveness.”44

41 Miller, supra note 10.

42 Id. at 501, 822 N.W.2d 364, quoting Pearce, supra note 40.

43 Id. at 502, 822 N.W.2d 364, citing Smith, supra note 40.

44 Id. at 502, 504, 822 N.W.2d 364, 366, citing Smith, supra note 40.
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Here, Castaneda was sentenced by two different judges. 

Therefore, we agree with the State that Castaneda is not entitled to a presumption of vindictiveness.

Further, Castaneda made no argument of actual vindictiveness, and our review of the record does not reveal any impermissible considerations or vindictiveness by the court. Instead, 

the court weighed the required factors under the relevant case 

law and § 28-105.02. The court also took into consideration 

the fact that Castaneda was not the shooter and that he had 

decreased cognitive ability due to his age and immaturity. 

However, the court could not overlook the fact that Castaneda 

was involved in three distinct incidents of gun violence that 

resulted in the deaths of two people and the wounding of a 

third. Ultimately, the court believed that Castaneda’s youth 

entitled him to sentences on the low end of the statutory range, 

but that his actions required he serve the sentences consecutively. Consequently, we conclude Castaneda’s assignment of 

error is without merit.

CONCLUSION

The sentences of the district court are affirmed.

Affirmed