No. 41 August 10, 2017 723

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

JOAQUIN SIERRA,

Petitioner on Review.

(CC 05C40355; CA A153534; SC S064237)

On review from the Court of Appeals.*

Argued and submitted May 8, 2017.

David O. Ferry, Deputy Public Defender, Salem, argued 

the cause and filed the briefs for petitioner on review. Also 

on the briefs was Ernest G. Lannet, Chief Defender, Office 

of Public Defense Services.

Timothy A Sylwester, Assistant Attorney General, Salem, 

argued the cause and filed the brief for respondent on review. 

Also on the brief were Frederick M. Boss, Deputy Attorney 

General, and Benjamin Gutman, Solicitor General.

Before Balmer, Chief Justice, and Kistler, Walters, 

Landau, and Nakamoto, Justices, and Baldwin, Senior 

Justice pro tempore.**

WALTERS, J.

The decision of the Court of Appeals and the judgment of 

the circuit court are affirmed.

______________

** On appeal from Marion County Circuit Court, Susan M. Tripp, Judge. 278 

Or App 96, 374 P3d 952 (2016)

** Brewer, J., retired June 30, 2017, and did not participate in the decision 

of this case. Flynn and Duncan, JJ., did not participate in the consideration or 

decision of this case.
724 State v. Sierra

Case Summary: Defendant was convicted of nine offenses and sentenced to 

250 months in prison. On review, this court reversed two of defendant’s convictions and remanded the case to the trial court for resentencing. State v. Sierra, 

349 Or 506, 254 P3d 149 (2010), adh’d to as modified, 349 Or 604, 247 P3d 759 

(2011). On remand, before a different judge, the state sought upward departure 

sentences based on enhancement factors found by the jury. The second sentencing court imposed a total sentence of 276 months—an increase of 26 months over 

the original sentence. Defendant appealed, arguing that (1) the Smith rule and 

the Double Jeopardy Clause of the federal constitution prevented the sentencing 

court from applying ORS 138.222(5)(b) and imposing new sentences on defendant’s UUW convictions because defendant had served the original sentences 

on those counts; and (2) under Pearce and Partain, the Court of Appeals was 

required to presume that the second sentencing judge had acted vindictively and 

that due process therefore precluded imposition of a more severe sentence. The 

Court of Appeals affirmed the judgment of the trial court, and defendant petitioned for review by this court. In a unanimous opinion, the Supreme Court held 

that (1) the common-law rule of State v. Smith, 323 Or 450, 918 P2d 824 (1996), 

and the Double Jeopardy Clause of the United States Constitution did not prevent the trial court from resentencing defendant on all of the convictions that 

remained on remand, pursuant to ORS 138.222(5)(b); and (2) when a different 

judge resentences a defendant on remand and the sentence is more severe than 

the sentence originally imposed, the Supreme Court’s decision in North Carolina 

v. Pearce, 395 US 11 711, 89 S Ct 2072, 23 L Ed 2d 656 (1969), and this court’s 

decision in State v. Partain, 349 Or 12 10, 239 P3d 232 (2010), require that the 

second sentencing court articulate the reasons for the increased sentence on the 

record, and that those reasons be “wholly logical” and “nonvindictive.”

The Court affirmed the decision of the Court of Appeals and the judgment of 

the circuit court.
Cite as 361 Or 723 (2017) 725

WALTERS, J.

This court reversed two of defendant’s nine convictions and remanded the case for resentencing on the 

remaining convictions. State v. Sierra, 349 Or 506, 254 P3d 

149 (2010), modified and adh’d to on recons, 349 Or 604, 247 

P3d 759 (2011). On remand, a different judge, who did not 

preside over defendant’s original trial, imposed a longer 

total sentence than had the original trial court. This case 

requires us to decide two issues: first, whether Oregon common law or the federal Double Jeopardy Clause precludes 

the second sentencing court from imposing new sentences 

on defendant’s convictions for unlawful use of a weapon 

(UUW) because defendant already had served the previously 

imposed sentences; and second, whether the Due Process 

Clause, as interpreted by the United States Supreme Court 

in North Carolina v. Pearce, 395 US 711, 89 S Ct 2072, 23 

L Ed 2d 656 (1969), and by this court in State v. Partain,

349 Or 10, 239 P3d 232 (2010), precludes the imposition of a 

more severe sentence than originally imposed. The answer 

to both questions is no. We affirm the decisions of the trial 

court and the Court of Appeals, State v. Sierra, 278 Or App 

96, 374 P3d 952 (2016).

I. BACKGROUND

A jury convicted defendant of nine offenses: one 

count of first-degree kidnapping; two counts of seconddegree kidnapping; one count of fourth-degree assault; and 

five counts of unlawful use of a weapon (UUW). The state 

did not allege enhancement factors. The trial court sentenced defendant to a total of 250 months in prison. The 

court imposed a 110-month sentence on the conviction for 

first-degree kidnapping, two consecutive 70-month sentences on the convictions for second-degree kidnapping, and 

concurrent sentences of 14 months or less on the remaining 

convictions (including all of defendant’s UUW convictions). 

On review, this court concluded that the evidence did not 

support the convictions for two counts of second-degree kidnapping because the state had failed to prove the act element. Sierra, 349 Or at 518. The court reversed defendant’s 

convictions on those counts and remanded the case to the 
726 State v. Sierra

trial court for resentencing. Sierra, 349 Or at 607 (modified 

and adh’d to on recons).

On remand, before a different judge, the state 

sought an upward departure sentence on defendant’s conviction for first-degree kidnapping, as well as longer sentences 

than originally imposed on the other convictions. On the 

kidnapping conviction, the state alleged, and the sentencing 

jury found, four enhancement factors—the use of a weapon; 

threat of or actual violence towards a witness; prior sanctions should have deterred defendant’s criminal conduct 

and did not; and incarceration is necessary for public safety. 

Based on the jury’s findings, the state sought, by upward 

departure, a sentence of 220 months on that count—an 

increase of 110 months over defendant’s original sentence. 

The state also asked the court to place four of defendant’s 

UUW convictions (counts 5, 7, 10, and 11) into gridblock 6-D 

and impose the 14-month presumptive sentence on each and 

to require defendant to serve those four sentences consecutively to each other and to the 220-month sentence imposed 

on the kidnapping conviction, for a total sentence of 276 

months.

Defendant objected under Partain, arguing that 

the imposition of a longer total sentence would be presumed 

vindictive because the second sentencing court would not 

be basing its sentence on information unknown to the first 

court at the time of the original sentencing. Defendant also 

contended that the common-law rule of State v. Smith, 323 

Or 450, 918 P2d 824 (1996), prevented the sentencing court 

from imposing new sentences on any of the UUW convictions 

because defendant had fully served the sentences originally 

imposed on those counts. Finally, defendant argued that 

revisiting a completely served sentence would deny him due 

process and the swift and complete administration of justice, under Article I, section 10, of the Oregon Constitution.1

The sentencing court overruled defendant’s objections and imposed the sentence requested by the state. The 

1 Defendant also objected to the enhancement factors on the ground that 

allowing the state to rely on enhancement factors that it had withdrawn when 

defendant was initially sentenced had the effect of denying him due process and 

equal protection of law. That issue is not before this court on review.
Cite as 361 Or 723 (2017) 727

court explained that defendant’s sentence complied with 

the Partain requirements because the court had based the 

increased sentence on information not available to the first 

court: the apparent continued impact of the crimes on the 

victims and defendant’s prison disciplinary record. The 

court also explained that it was imposing an upward durational departure sentence on the first-degree kidnapping 

conviction based on the enhancement factors found by the 

jury, and that the sentences requested by the state on the 

UUW convictions were appropriate under the sentencing 

guidelines.

Defendant appealed to the Court of Appeals, arguing that (1) the Smith rule and the Double Jeopardy Clause 

of the federal constitution prevented the sentencing court 

from applying ORS 138.222(5)(b) and imposing new sentences on any of the UUW convictions; and (2) under Pearce 

and Partain, the Court of Appeals was required to presume 

that the judge on remand had acted vindictively and that due 

process precluded imposition of a more severe sentence. The 

Court of Appeals rejected defendant’s arguments, holding 

that the Smith rule did not bar the trial court from applying 

ORS 138.222(5)(b) and modifying defendant’s UUW sentences on remand and that the trial court had satisfied the 

Pearce/Partain requirements. Sierra, 278 Or at 100-105. The 

court also held that defendant’s double jeopardy argument 

was not preserved and did not warrant plain error review. 

Id. at 98.2

Defendant petitioned for review in this court, renewing the arguments presented before the Court of Appeals. 

We allowed defendant’s petition.

2 Defendant also argued before the Court of Appeals, and argues again on 

review, that the second sentencing court violated due process and the Ex Post 

Facto Clause of Article I, section 21, of the Oregon Constitution by applying the 

Partain rule to his case. According to defendant, the rule abrogated by Partain—

the rule of State v. Turner, 247 Or 301, 429 P2d 565 (1967)—should apply to his 

case because he originally appealed his kidnapping convictions in 2006, and the 

Partain rule was announced by this court in 2009. Defendant conceded before 

the Court of Appeals that he had not preserved an objection under the Ex Post 

Facto Clause, and that court rejected defendant’s argument without discussion. 

We also reject that argument as unpreserved and decline to exercise our discretion to review it as plain error. See Ailes v. Portland Meadows, Inc., 312 Or 376, 

381-82, 823 P2d 956 (1991) (explaining requirements for plain error review and 

appellate court’s discretion to consider plain error). 
728 State v. Sierra

II. ANALYSIS

A. Defendant’s Objections to Increases in His Sentence 

Based on Crimes of UUW

1. Defendant’s common-law argument

We turn, first, to defendant’s common-law argument, because our ordinary practice is to analyze state 

law claims before reaching a party’s federal constitutional 

claims. Sterling v. Cupp, 290 Or 611, 614, 625 P2d 123 

(1981). Defendant contends that the common-law Smith 

rule, which prohibits a sentencing court from modifying 

a sentence that has been served, precluded the trial court 

from imposing a new sentence on defendant’s UUW convictions. The state responds that the legislature partially overruled Smith when it enacted what is now codified as ORS 

138.222(5)(b). That statute provides that, when an appellate court reverses the judgment of conviction on any count 

in a multi-count case in which at least one count is a felony, “the appellate court shall remand the case to the trial 

court for resentencing on the affirmed count or counts.” ORS 

138.222(5)(b) (emphasis added). According to the state, in 

the limited circumstance in which a court reverses one or 

more convictions and affirms the other convictions, and the 

court does not otherwise rule that any of the sentences were 

imposed in error, ORS 138.222(5)(b) has supplanted Smith 

to require that the court remand the case for resentencing 

on all remaining counts.

In Smith, the defendant was convicted of numerous 

felony and misdemeanor offenses and received a sentence of 

consecutive and concurrent sentences totaling 120 months. 

323 Or at 452. After the Court of Appeals affirmed the 

defendant’s convictions but reversed the sentences on some 

convictions, State v. Smith, 116 Or App 558, 563, 842 P2d 

805 (1992), adh’d to on recons, 120 Or App 438, 852 P2d 

934 (1993), the defendant was resentenced to 102 months in 

prison. Smith, 323 Or at 452. The defendant then appealed 

from the amended judgment, arguing that the sentencing 

court had erred when it imposed new consecutive sentences 

on some of his misdemeanor convictions because he already 

had served the original sentences on those convictions at 

the time of the resentencing. Id. at 452-53. On review, this 
Cite as 361 Or 723 (2017) 729

court recognized the common-law rule that “a sentencing 

court lacks the authority to modify a valid sentence once the 

original sentence has been executed” and determined that 

the same result follows “when the original sentence not only 

has been executed, but also has been served.” Id. at 453-54.

Defendant and the state agree that, in response 

to the Court of Appeals decision in Smith, the legislature 

amended ORS 138.222(5)(a), which governs the scope 

of review of sentences imposed on felony convictions, to 

expressly authorize a remand for resentencing of the entire 

case when an appellate court determines that there has 

been a sentencing error. The amended provision provides,

“The appellate court may reverse or affirm the sentence. If the appellate court concludes that the trial court’s 

factual findings are not supported by evidence in the record 

or do not establish substantial and compelling reasons for 

a departure, it shall remand the case to the trial court for 

resentencing. If the appellate court determines that the sentencing court, in imposing a sentence in the case, committed 

an error that requires resentencing, the appellate court shall 

remand the entire case for resentencing. The sentencing 

court may impose a new sentence for any conviction in the 

remanded case.”

ORS 138.222(5)(a); Or Laws 1993, ch 692, § 1 (added language italicized). As this court recognized in Partain, that 

amendment “unambiguously provides that, when a case is 

remanded because of a particular sentencing error, the sentencing court may impose different sentences on any and all 

counts—even those not affected by the identified error.” 349 

Or at 19.

In 2005, the legislature enacted ORS 138.222(5)(b). 

Or Laws 2005, ch 563, § 2. That provision applies when an 

appellate court reverses the judgment of conviction on any 

count in a multi-count case, where at least one count is a 

felony. ORS 138.222(5)(b) provides,

“If the appellate court, in a case involving multiple 

counts of which at least one is a felony, reverses the judgment of conviction on any count and affirms other counts, 

the appellate court shall remand the case to the trial court 

for resentencing on the affirmed count or counts.”

(Emphasis added.)
730 State v. Sierra

Defendant makes two arguments in support of his 

position that the Smith common-law rule nevertheless governs in this case. We find neither persuasive. First, defendant contends that neither ORS 138.222(5)(a) nor ORS 

138.222(5)(b) abrogated the Smith rule because, when this 

court decided Smith in 1996, the legislature already had 

enacted the current version of ORS 138.222(5)(a), and, by 

applying the common-law rule, the court impliedly acknowledged its continuing vitality. Defendant cites Fulmer v. 

Timber Inn Restaurant and Lounge, Inc., 330 Or 413, 424, 9 

P3d 710 (2000), for the proposition that “[a]lthough the legislature may abrogate rules of the common law by statute,” 

it cannot be considered to have done so when the court recognizes the common-law claim after the enactment of the legislation in question. Because this court’s decision in Smith was 

issued after the amendment to ORS 138.222(5)(a) became 

effective, defendant argues that this court implicitly held, in 

Smith, that that statute did not abrogate the common-law 

rule. And, according to defendant, ORS 138.222(5)(b) should 

not be construed more broadly than ORS 138.222(5)(a)

because ORS 138.222(5)(b) does not explicitly abrogate the 

common-law rule.

The state responds that defendant misunderstands 

the law that applied when this court decided Smith. The 

current version of ORS 138.222(5)(a) did not become effective until after the Court of Appeals issued its opinion in 

Smith. This court reviewed the Court of Appeals decision, 

not the amended statute that was enacted after that decision. We agree with the state that the timing of this court’s 

decision in Smith does not give rise to an inference that the 

question presented here was answered there.

Next, defendant argues that the Smith rule and 

ORS 138.222(5)(b) are not in conflict. Defendant contends 

that, when the legislature enacted that provision, it would 

have understood that a served sentence could not be resentenced, and that the legislature used the phrase “affirmed 

count or counts” because there is no reason to “affirm” a conviction for which the sentence has been fully served and that 

is not challenged on appeal. According to defendant, even if 

the last sentence of ORS 138.222(5)(a)—“[t]he sentencing 
Cite as 361 Or 723 (2017) 731

court may impose a new sentence for any conviction in the 

remanded case”—abrogated the Smith rule, the last clause 

of ORS 138.222(5)(b)—“the appellate court shall remand 

the case to the trial court for resentencing on the affirmed 

count or counts”—has a substantially different, and narrower, meaning. The state disagrees, arguing that the pertinent language in subsections (5)(a) and (5)(b) is substantively the same.

In interpreting a statute, this court looks, first, at 

the text and context of the statute. State v. Gaines, 346 Or 

160, 164, 206 P3d 1042 (2009). Defendant’s textual argument rides on the meaning of the word “affirmed” in ORS 

138.222(5)(b). According to Black’s Law Dictionary, to affirm 

is to “confirm, ratify, or approve (a lower court’s judgment) on 

appeal.” Black’s Law Dictionary 70 (10th ed 2014). There is 

nothing in the definition of the word “affirm” that necessarily limits its application as defendant contends. But, even if 

defendant were correct that there is no reason for an appellate court to “affirm” a conviction when the sentence for the 

crime has already been served, we doubt that the legislature 

intended to preclude a trial court from resentencing on all 

counts that were not reversed. First, as the state points out, 

ORS 138.222(5)(a) permits the trial court to impose a new 

sentence “for any conviction in the remanded case.” Second, 

as we explained in Febuary v. State of Oregon, 361 Or 544, 

562, 396 P3d 894 (2017), “trial courts may assemble sentences on individual counts to form a ‘package’ sentence,” 

“in which the length of component counts are set in order 

to reach a desired total sentence.” Because Oregon law permits trial courts to construct sentences in multi-count cases 

as a “package,” we will not interpret ORS 138.222(5)(b) to 

preclude trial courts from considering all unreversed convictions when formulating a new sentence on remand.

The legislative history of House Bill (HB) 2224 

(2005), which was later codified as ORS 138.222(5)(b), is 

consistent with that interpretation. Committee Counsel 

Heidi Moawad testified that a recent Court of Appeals case 

illustrated the reason for the proposed amendment. Audio 

Recording, House Committee on Judiciary, Criminal Law 

Subcommittee, HB 2224, Feb 1, 2005, at 8:48 (comments 
732 State v. Sierra

of Heidi Moawad). In State v. Fry, 180 Or App 237, 246, 42 

P3d 369 (2002), the Court of Appeals had reversed several 

of the defendant’s convictions but had not remanded the 

case for resentencing on the remaining convictions. Moawad 

testified that, in that case, it would have been appropriate 

to remand for resentencing on the remaining counts. Audio 

Recording, House Committee on Judiciary, Criminal Law 

Subcommittee, HB 2224, Feb 1, 2005, at 8:50 (comments 

of Heidi Moawad). She explained that the proposed amendment would permit appellate courts to order exactly that 

and would prevent defendants from “getting a windfall” 

based on the way a case was sentenced, for example, concurrently versus consecutively. Id. at 9:05. Assistant Attorney 

General Jonathan Fussner also testified in support of the 

bill, stating that the amendment was not about punishing 

a defendant more harshly because he had appealed; rather, 

the purpose was to allow courts to adjust the sentence on 

the remaining counts to “get back [to] the sentence * ** 

that originally was imposed and that the court believes 

is the right sentence.” Id. at 12:50 (comments of Jonathan 

Fussner). In response, a representative from the Oregon 

Criminal Defense Lawyers Association argued that it would 

not make sense for a defendant to be given the same sentence on remand after successfully appealing one or more of 

his convictions. Id. at 12:45 (comments of Kelly Skye). But, 

at the very least, she asserted, the authority to resentence 

on the remaining counts should be limited to counts arising 

out of the same criminal episode as the reversed count or 

counts. Id. at 28:53.

Thus, although witnesses disagreed about the scope 

of the trial court’s authority on remand, their comments 

reflect an understanding that trial judges have authority to 

craft what amounts to a “package” sentence. See Febuary, 

361 Or at 562 (explaining that “trial courts may assemble 

sentences on individual counts to form a ‘package’ sentence”). 

We conclude that, in enacting ORS 138.222(5)(b), the legislature intended to permit judges to resentence defendants 

on all of the convictions that remain on remand. 3

3 We decide that that authority exists in the factual context presented here—

where all of defendant’s crimes were committed in the same criminal episode. 

We do not decide whether that authority would extend to other factual contexts 
Cite as 361 Or 723 (2017) 733

2. Defendant’s double jeopardy argument

For similar reasons, we also reject defendant’s argument that the federal Double Jeopardy Clause precludes 

interpreting ORS 138.222(5)(b) to permit resentencing on 

defendant’s UUW convictions. Assuming, without deciding, that defendant preserved an objection based on double 

jeopardy, defendant’s argument fails. The Double Jeopardy 

Clause prohibits multiple punishments for the same offense. 

United States v. DiFrancesco, 449 US 117, 127-28, 101 S Ct 

426, 66 L Ed 2d 328 (1980). It protects against “additions to 

a sentence in a subsequent proceeding that upset a defendant’s legitimate expectation of finality.” Jones v. Thomas, 

491 US 376, 385, 109 S Ct 2522, 105 L Ed 2d 322 (1989). 

According to defendant, that expectation generally arises 

after a sentence is complete. See United States v. Daddino, 5 

F3d 262, 265 (7th Cir 1993) (defendant acquired a legitimate 

expectation of finality because defendant had completed service of his incarceration and paid all fines and restitution)

Defendant cites United States v. Arrellano-Rios, 799 

F2d 520 (9th Cir 1986), in support of that contention. In 

Arrellano-Rios, the defendant was convicted on three counts 

and sentenced to concurrent, one-year sentences on the 

first two and a consecutive, five-year sentence on the third 

count. Id. at 522. On appeal, the court reversed the defendant’s third conviction but declined to remand the case for 

resentencing because it concluded that the defendant had 

served the one-year sentences on the first two counts. Id. at 

523. The court explained that “increasing a legal sentence 

that already has been fully served would violate the Double 

Jeopardy Clause.” Id. Because neither party had “challenged 

the legality of [the defendant’s] sentence” on the first two 

counts, the court concluded, he “never [had] any reason to 

question that his sentences on those counts would be fully 

served by incarceration for one year.” Id. at 524.

The state responds that the Ninth Circuit more 

recently has held that its decision in Arrellano-Rios does 

not apply to sentences that are imposed in multi-conviction 

cases under the federal sentencing guidelines. United States 

or whether other law would limit the exercise of that authority in those circumstances. Those arguments are not raised in this case. 
734 State v. Sierra

v. Radmall, 340 F3d 798 (9th Cir 2003). In Radmall, the 

court held that the defendant’s original sentence constituted 

a single “package” that reflected “his overall offense conduct 

rather than separate and independent sentences on each 

court.” Id. at 801. Accordingly, the court explained, “when 

[the defendant] appealed his conviction and sentence on 

count I, he was prevented from gaining a legitimate expectation of finality on his sentence for count II.” Id.

Defendant argues that Radmall is not relevant to 

the facts of this case because Oregon’s sentencing system is 

unlike the “unified term of imprisonment” system at issue 

in that case. However, as we explained above, trial courts in 

Oregon do have discretion to assemble package sentences. 

Febuary, 361 Or at 562. Defendant does not convince us 

that the Double Jeopardy Clause requires us to interpret 

ORS 138.222(5)(b) to preclude resentencing on his UUW 

convictions.

We conclude that ORS 138.222(5)(b) gave the sentencing court in this case the authority to impose new sentences on the counts that remained on remand, including 

defendant’s UUW convictions.4

B. Defendant’s Arguments under Pearce and Partain

We turn, next, to defendant’s arguments under 

Pearce and Partain. In Pearce, the United States Supreme 

Court held that due process 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.” 395 US at 725. 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.” Id. In order to “assure the 

absence of such a motivation,” the Court articulated the following two prophylactic rules:

4 The existence of that authority does not mean that its exercise is immune 

from challenge. For instance, in a case in which a defendant seeks to prove that 

a sentencing court acted vindictively, the fact that, at the time of resentencing, a 

sentence attributable to a certain crime already has been served may be relevant.
Cite as 361 Or 723 (2017) 735

“[W]henever a judge imposes a more severe sentence 

upon a defendant after a new trial, the reasons for his 

doing so must affirmatively appear. Those 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 part of the record, so that the constitutional legitimacy of the increased sentence may be fully 

reviewed on appeal.”

Id. at 726.

In Partain, this court overruled its prior decision 

in State v. Turner, 247 Or 301, 313, 429 P2d 565 (1967). 

Partain, 349 Or at 23. In Turner, this court held that “[a]fter 

an appeal or post-conviction proceeding has resulted in the 

ordering of a retrial for errors other than an erroneous sentence, * ** and the defendant has again been convicted, no 

harsher sentence can be given than that initially imposed.” 

247 Or at 313. The Turner court acknowledged that circumstances might arise in which a judge, on remand, would be 

justified in imposing a more severe sentence. Id. Even so, the 

court concluded that “permitting a harsher sentence under 

such circumstances raises difficulties in judicial administration. It would require a court reviewing the propriety of the 

second sentence to make a subjective determination whether 

the new information justified and was in fact the motive for 

the more severe sentence.” Id. at 314. Consequently, the court 

determined that “the argument for efficient judicial administration outweighs the possible advantages of permitting 

more severe sentences upon the basis of new information.” 

Id. at 315.

In Partain, the court concluded that Turner “rested 

on an unexamined elaboration on the right of appeal guaranteed by ORS 138.020—i.e., that the right of appeal necessarily includes the right to have the length of any resentence 

limited to the length of the sentence originally imposed.” 

349 Or at 21. The court explained that changes in the law 

pertaining to criminal sentencing and appeals since Turner 

was decided made clear that Turner’s “expansive reading of 

the right to appeal” was not viable. 349 Or at 22.
736 State v. Sierra

Despite overruling Turner, the court recognized 

“the possibility that trial courts may employ their sentencing authority to punish defendants for having the temerity 

to appeal earlier convictions and sentences.” 349 Or at 17. 

In considering how Oregon courts should approach claims 

of vindictiveness in sentencing, post-Turner, the court found 

no obvious answer in the Oregon Constitution and determined that the federal Due Process Clause provides the relevant source of law. Id. at 23-24. Taking its cue from the 

United States Supreme Court’s decision in Pearce, the court 

announced the following rules:

“If an Oregon trial judge believes that an offender whom the 

judge is about to resentence should receive a more severe 

sentence than the one originally imposed, the judge’s reasons must affirmatively appear on the record. Those reasons must be based on identified facts of which the first sentencing judge was unaware, and must be such as to satisfy 

a reviewing court that the length of the sentence imposed is 

not a product of vindictiveness toward the offender. Absent 

such facts and reasons, an unexplained or inadequately 

explained increased sentence will be presumed to be based 

on vindictive motives, and will be reversed.”

Id. at 25-26.

Thus, as understood and articulated by this court in 

Partain, due process requires, first, that a judge who resentences a defendant to a more severe sentence than the one 

originally imposed make a record of the reasons for doing 

so. Id. Second, those reasons (1) must be based on identified facts of which the first sentencing judge was unaware, 

and (2) must satisfy a reviewing court that the length of the 

sentence imposed is not a product of vindictiveness. Id. If 

those requirements are not met, the increased sentence is 

presumed vindictive. Id. at 26.5

1. State’s argument that the Pearce/Partain requirements do not apply

Before we consider whether those requirements 

were met in this case, we take up the state’s preliminary 

5 We need not decide whether this court’s statement in Partain differs from 

the Supreme Court’s articulation in Pearce because we conclude that a different 

standard applies in this case, where a second judge resentenced defendant on 

remand. 
Cite as 361 Or 723 (2017) 737

argument that they do not apply at all. Relying on cases 

decided by the United States Supreme Court after Pearce,

the state argues that the Pearce/Partain requirements do 

not apply, as a categorical matter, where, as here, a different 

judge resentences the defendant on remand.6

 Defendant, for 

his part, argues that the fact that a second judge from the 

same court sentences a defendant is not sufficient to remove 

the reasonable risk of vindictiveness caused by institutional bias. According to defendant, a blanket exception to 

the Pearce/Partain rule for sentences imposed by different 

judges would permit actual vindictiveness to play a part in 

sentencing by precluding the application of the presumption in cases where there remains a reasonable likelihood of 

vindictiveness.

The Supreme Court has not explicitly decided that 

issue. In Pearce, a different judge resentenced the defendant 

on remand, but, in a later case, the Court dismissed that 

fact as irrelevant, concluding that it had not been drawn to 

the Court’s attention, and “declin[ed] to read Pearce as governing the issue.” Texas v. McCullough, 475 US 134, 140 n 3, 

106 S Ct 976, 89 L Ed 2d 104 (1986). Thus, we must glean 

what we can about how the Supreme Court would decide the 

issue from the Court’s reasoning in Pearce and its progeny.

7

The case of Chaffin v. Stynchcombe, 412 US 17, 25, 

93 S Ct 1977, 36 L Ed 2d 714 (1973), provides a good starting point because it helpfully explains the Supreme Court’s 

decision in Pearce as establishing two related, prophylactic rules: (1) that, after a new trial, the reasons for a more 

severe sentence “must affirmatively appear”; and (2) that 

those reasons “must be based upon ‘objective information 

6 The state acknowledges that it did not raise, before the sentencing court 

or the Court of Appeals, the argument that the presumption of vindictiveness 

does not apply where the resentencing is done by a different judge than the one 

who imposed the original sentence. However, we agree with the state that that 

argument is a permissible alternative basis on which this court may affirm the 

judgment. See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 

659-60, 20 P3d 180 (2001). The issue presented is one of law, and the factual 

record could not have developed differently had the state raised the issue earlier 

in the proceedings. Id.

7 As we noted in Partain, “[t]his court could, of course, announce additional 

requirements under our own constitution or pursuant to statute,” 349 Or at 

25; however, we found, in that case, no obvious basis for doing so in the Oregon 

Constitution or state statutory law, and defendant does not posit a source here.
738 State v. Sierra

concerning identifiable conduct on the part of the defendant 

occurring after the time of the original sentencing proceeding.’” (Quoting Pearce, 395 US at 726.) In Chaffin, the Court 

said:

“In Pearce it was held that vindictiveness, manifesting 

itself in the form of increased sentences upon conviction 

after retrial, can have no place in the resentencing process. 

Under our constitutional system it would be impermissible 

for the sentencing authority to mete out higher sentences on 

retrial as punishment for those who successfully exercised 

their right to appeal, or to attack collaterally their conviction. Those actually subjected to harsher resentencing as 

a consequence of such motivation would be most directly 

injured, but the wrong would extend as well to those who 

elect not to exercise their rights of appeal because of a legitimate fear of retaliation. Thus, the Court held that fundamental notions of fairness embodied within the concept of 

due process required that convicted defendants be ‘freed of 

apprehension of such a retaliatory motivation.’ [Pearce, 395 

US at 725]. To that end, the Court concluded that ‘whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must 

affirmatively appear.’ Id. [at 726]. And, as a further prophylaxis, it was stated that those 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.’ [Id.]”

412 US at 24-25 (footnotes omitted).

The Court then went on to consider whether to 

apply Pearce in the circumstance presented—the circumstance in which, by state design, juries, rather than judges, 

impose sentence. 412 US at 26-28. The Court reasoned that, 

as long as “improper and prejudicial information regarding 

the prior sentence is withheld” from the second jury, there 

is no basis for holding that jury resentencing poses any real 

threat of vindictiveness, and concluded that Pearce did not 

apply. Id. at 28.

Before the Court decided Chaffin, it also had considered whether the Pearce rules were applicable in the context of a two-tier system in which a defendant is entitled to 

a trial de novo in a superior court. Colten v. Kentucky, 407 
Cite as 361 Or 723 (2017) 739

US 104, 92 S Ct 1953, 32 L Ed 2d 584 (1972). In Chaffin, 

the Court explained why it had decided, in Colten, that the 

Pearce requirements did not apply:

“While noting that ‘[i]t may often be that the [de novo

‘appeal’ court] will impose a punishment more severe than 

that received from the inferior court,’ [Colten, 407 US at 

117], we were shown nothing to persuade us that ‘the hazard of being penalized for seeking a new trial, which underlay the holding of Pearce, also inheres in the de novo trial 

arrangement.’ Id. [at 116] (emphasis supplied). In short, 

the Due Process Clause was not violated because the ‘possibility of vindictiveness’ was not found to inhere in the twotier system. [Id.]”

412 US at 26 (emphasis in original). Thus, in both Chaffin

and Colten, the Court considered the constitutionality of 

state procedures that eliminate the possibility of vindictiveness and held that, in that context, neither a statement of 

the reasons for the imposition of a more severe sentence nor 

a presumption of vindictiveness are required.

Two other cases that the Supreme Court decided 

after Pearce are more on point—Alabama v. Smith, 490 US 

794, 109 S Ct 2201, 104 L Ed 2d 865 (1989), and McCullough, 

475 US at 134. In both of those cases, the same judge 

imposed a more severe sentence after originally imposing a 

less severe sanction. Smith, 490 US at 796-97; McCullough, 

475 US at 135-36. And in both of those cases, the judge, 

on retrial, provided reasons for the imposition of the more 

severe sentence. Smith, 490 US at 797; McCullough, 475 US 

at 136.

In Smith, the trial court imposed the original sentence after the defendant’s guilty plea. On remand, the same 

court conducted a full trial and imposed a harsher sentence 

because it had learned new information about the defendant’s crimes. Smith, 490 US at 796-97. The Supreme Court 

described that new information in detail:

“The trial court explained that it was imposing 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 
740 State v. Sierra

been too lenient. * * * As the court explained, at the time 

it imposed sentence on the guilty plea, it had heard only 

‘[respondent’s] side of the story’; whereas now, it ‘has had 

a trial and heard all of the evidence,’ including testimony 

that respondent had raped the victim at least five times, 

forced her to engage in oral sex with him, and threatened 

her life with a knife. [Id.] The court stated that this new 

information about the nature of respondent’s crimes and 

their impact on the victim, together with its observations 

of his ‘mental outlook on [the offenses] and [his] position 

during the trial,’ convinced it that it was ‘proper to increase 

the sentence beyond that which was given to [him] on the 

plea bargain.’ Id. [at 30.]”

Id. In McCullough, the judge explained that, on retrial, she 

had heard evidence from two witnesses who had not testified at the original trial and that she had imposed a more 

severe sentence based on that new, significant evidence. 475 

US at 136.

In both Smith and McCullough, the Court upheld 

the more severe sentences against Pearce challenges. In 

Smith, the Court distinguished the facts of that case from 

Pearce, explaining that

“in the course of the proof at trial the judge may gather a 

fuller appreciation of the nature and extent of the crimes 

charged. The defendant’s conduct during trial may give the 

judge insights into his moral character and suitability for 

rehabilitation. * ** Finally, after trial, the factors that may 

have indicated leniency as consideration for the guilty plea 

are no longer present.”

490 US at 801. In McCullough, the Court gave two reasons 

for its decision. First, the court noted that the trial judge 

had not been overruled by a higher court. McCullough, 475 

US at 138. The “second trial came about because the trial 

judge herself concluded that the prosecutor’s misconduct 

required it.” Id. Second, the Court said, the trial judge had 

provided “an on-the-record, wholly logical, nonvindictive 

reason for the sentence.” Id. at 140. In the Court’s words, it 

“read Pearce to require no more.” Id.

We read the Supreme Court cases decided since 

Pearce as demonstrating that the application of the two 

prophylactic rules adopted in Pearce will depend on the 
Cite as 361 Or 723 (2017) 741

particular circumstances presented. In each case, the Court 

has looked, and we think will continue to look, to the particular circumstances presented to determine whether there 

is an apparent need to “guard against vindictiveness in 

the resentencing process.” Chaffin, 412 US at 25 (emphasis omitted); McCullough, 475 US at 138 (internal quotation 

marks omitted). Thus, in circumstances such as those presented in Chaffin and Colten, the risk of vindictiveness is 

low; the second sentencer will not be required to articulate 

the reasons for a more severe sentence, and a failure to do 

so will not give rise to a presumption of vindictiveness. In 

other circumstances, such as those presented in Smith and 

McCullough, where the judge, on remand, articulates the 

reasons for a more severe sentence, the Court will not presume vindictiveness as long as those reasons are “wholly 

logical” and “nonvindictive.”8 McCullough, 475 US at 140.

We are cognizant that the Supreme Court’s postPearce cases can be read more broadly to indicate an intent 

to dispense with the requirement that a judge who imposes 

a second, harsher sentence must articulate its reasons for 

doing so, and that some lower courts seem to read them in 

that way. See, e.g., Gonzales v. Wolfe, 290 Fed Appx 799, 813 

(6th Cir 2008) (holding that, although no reason for more 

severe sentence stated, no presumption of vindictiveness 

because different judge resentenced defendant).9

However, many other federal courts read the cases 

as we do. For instance, in Macomber v. Hannigan, 15 F3d 

155, 157 (10th Cir 1994), the Tenth Circuit held that the 

8 We note that the Court’s use of the phrase “presumption of vindictiveness” 

is somewhat confusing. A “presumption” traditionally shifts the burden of proof 

of production or persuasion to the opposing party, who is then invited to overcome 

it. See Black’s Law Dictionary 1376 (10thed 2014) (so defining the word “presumption”). If operating in that fashion, a trial court’s failure to give reasons for a more 

severe sentence would give rise to a presumption of vindictiveness that the trial 

court could rebut by providing sufficient nonvindictive reasons for the sentence. 

When the Court has discussed the “presumption of vindictiveness,” however, it 

has said that the presumption does not apply when a trial court first offers a nonvindictive reason for the sentence imposed. See, e.g., McCullough, 475 US at 140 

(explaining that no presumption when judge provides an “on-the-record, wholly 

logical, nonvindictive reason for the sentence”).

9 For a discussion of the dangers of the Supreme Court’s erosion of the Pearce 

rule, see Stephen G. Murphy, Jr., Limits on Enhanced Sentences Following Appeal 

and Retrial: Has Pearce Been Pierced?, 19 Conn L Rev 973, 988-995 (1986-87).
742 State v. Sierra

presumption of vindictiveness does not apply when a different judge resentences a defendant and the judge satisfies 

the added condition, articulated in McCullough, 475 US at 

140, that the judge “provides an on-the-record, wholly logical, nonvindictive reason for the sentence.” See also United 

States v. Anderson, 440 F3d 1013, 1016 (8th Cir 2006) (holding no presumption of vindictiveness when different judge 

imposes more severe sentence and record contains nonvindictive reasons for more severe sentence); United States v. 

Newman, 6 F3d 623, 630 (9th Cir 1993) (“when a second 

sentencing judge provides an ‘on-the-record, wholly logical, 

nonvindictive reason for the sentence,’ the requirements of 

Pearce are met”); Rock v. Zimmerman, 959 F2d 1237, 1257 

(3rd Cir 1992), overruled on other grounds by Kontakis v. 

Beyer, 19 F3d 110 (3rd Cir 1994) (holding Pearce presumption does not apply where second sentence imposed by different sentencer and record provides “affirmative assurance 

that the harsher sentence reflects simply a fresh look at the 

facts and an independent exercise of discretion”).

Other courts that have not explicitly held that the 

second judge must satisfy the “added-condition” requirement nevertheless have noted that the judge, on remand, 

articulated reasons for the increased sentence. See United 

States v. Rodriguez, 602 F3d 346, 359 (5th Cir 2010) (stating 

that second judge provided “more than sufficient reasons for 

the greater sentence”); United States v. Clark, 84 F3d 506, 

508 (1st Cir 1996) (stating “second trial judge heard all of 

the sentencing evidence anew and made findings adequate 

to support the sentence imposed”); United States v. Cheek, 3 

F3d 1057, 1064 (7th Cir 1993) (stating second judge “identified two aggravating facts that arose subsequent to [the 

defendant’s] original trial, justifying the higher sentence”); 

United States v. Perez, 904 F2d 142, 147 (2nd Cir 1990) (stating second judge based sentencing on “proper, non-vindictive 

reasons for the sentence imposed”—the defendant’s “greed, 

her lack of remorse, the fact that she played a major role in 

the drug conspiracy, and the fact that, although never an 

addict herself, she had immersed herself and her son in the 

business of drugs”).

In Pearce, the Court recognized that due process requires that courts refrain from vindictiveness in 
Cite as 361 Or 723 (2017) 743

sentencing, and that defendants be freed of the apprehension of vindictiveness. The fact that a different judge imposes 

an increased sentence does not eliminate those concerns or 

the possibility that “institutional prejudices might infect a 

trial judge’s resentencing of a defendant after a successful 

appeal.” McCullough, 475 US at 150. Although a jury without knowledge of a prior sentence is “unlikely to be sensitive 

to the institutional interests that might occasion higher sentences by a judge desirous of discouraging what he regards 

as meritless appeals,” Chaffin, 412 US at 27, another judge 

operating within the same system as the original judge 

likely will have that knowledge and understandably could 

be sensitive to those interests. Thus, we decline to adopt a 

categorical rule that a difference in judges makes the first 

prophylactic rule adopted in Pearce inapplicable. We will not 

depart from our conclusion in Partain, that “[i]f an Oregon 

trial judge believes that an offender whom the judge is about 

to resentence should receive a more severe sentence than 

the one originally imposed, the judge’s reasons must affirmatively appear on the record.” 349 Or at 25-26.

We reach a different conclusion, however, as to the 

second prophylactic rule imposed in Pearce. In Pearce, the 

Court said that, to avoid a presumption of vindictiveness, 

the judge, on remand, must give reasons based only “upon 

objective information concerning identifiable conduct on 

the part of the defendant occurring after the time of the 

original sentencing proceeding.” Pearce, 395 US at 726. 

However, in McCullough, the Court clarified that that was 

only one way in which the state could demonstrate a lack of 

vindictiveness:

“Nothing in Pearce is to be read as precluding a rebuttal of 

intimations of vindictiveness. As we have explained, Pearce

permits ‘a sentencing authority [to] justify an increased 

sentence by affirmatively identifying relevant conduct or 

events that occurred subsequent to the original sentencing proceedings.’ [Wasman v. U.S., 468 US 559, 572, 104 S 

Ct 3217, 82 L Ed 2d 424 (1984)] (Powell, J., concurring in 

part and concurring in judgment). This language, however, 

was never intended to describe exhaustively all of the possible circumstances in which a sentence increase could be 

justified.”
744 State v. Sierra

McCullough, 475 US at 141. In McCullough, even though the 

same judge who imposed the original sentence later imposed 

a more severe sentence, the Supreme Court held that that 

sentence met the Pearce requirements because the judge 

supported it with “wholly logical, nonvindictive reason[s].” 

Id. at 140. We think that the Supreme Court would follow 

the same analysis in circumstances in which a different 

judge considers the facts presented on remand. When two 

different judges assess the facts of a particular case, those 

two different individuals reasonably may reach different 

conclusions about the appropriate punishment. The same 

may be true when one judge assesses the case during an 

original trial, and the other assesses it later, on remand. As 

long as the second judge gives a “wholly logical, nonvindictive reason” for the more severe sentence, we conclude that 

the second Pearce requirement has been met. The same, 

therefore, goes for the Partain requirements.

10

2. Application of Pearce/Partain in this case

The first step in a Pearce/Partain vindictiveness 

analysis is to determine whether the sentence on remand 

was more severe than the sentence originally imposed. A 

sentence is “more severe” for Pearce/Partain purposes when 

“the total length of the second sentence exceeds that of the 

first.” Febuary, 361 Or at 563. Here, the total length of defendant’s second sentence—276 months—exceeds the length of 

his first sentence—250 months—and therefore qualifies as 

a “more severe” sentence.

The next step, in this circumstance, is to determine 

whether the court on remand articulated a “wholly logical, 

nonvindictive reason” for the more severe sentence.

Although the state did not seek departure sentences in 

defendant’s original prosecution, it did so on remand.11 On 

remand, the state alleged and tried four enhancement factors to the jury on the first-degree kidnapping conviction. 

10 We note that, even when the presumption of vindictivess does not apply, 

a defendant always may demonstrate a due process violation by “affirmatively 

prov[ing] actual vindictiveness.” Febuary, 361 Or at 558 (quoting Wasman v. 

United States, 468 US 559, 569, 104 S Ct 3217, 82 L Ed 2d 424 (1984)). 

11 As noted, defendant objected to the new allegations, but the trial court 

permitted them and defendant does not raise that issue in this court. 
Cite as 361 Or 723 (2017) 745

The jury unanimously found that the state had proved each 

of the four factors. In imposing sentence, the court stated 

that it “would impose an upward durational departure 

based on the jury’s findings.” The court also gave reasons 

for the increased sentence in Partain terms; it referred to 

other information available on resentencing that it considered unknown to the original court. We need not consider 

whether that information alone would meet the Pearce/

Partain requirements. The fact that the state alleged, and 

the jury found, four significant enhancement factors that 

had not been alleged or found during the original trial is 

a “wholly logical, nonvindictive reason” for the increased 

sentence, and that reason appears in the record. We conclude that the sentencing judge’s reasons for the more severe 

sentence were sufficient to comply with the requirements of 

Pearce and Partain.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.