544 June 22, 2017 No. 32

32State v. Febuary June 22, 2017 361 Or 2017

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

ROGER ROBERT FEBUARY,

Petitioner on Review.

(CC 080982; CA A154662; SC S063867)

En Banc

On review from the Court of Appeals.*

Argued and submitted January 12, 2017.

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

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

on the brief was Ernest G. Lannet, Chief Defender, Office of 

Public Defense Services.

Jonathan N. Schildt, Assistant Attorney General, Salem, 

argued the cause and filed the brief for the respondent on 

review. Also on the brief were Ellen F. Rosenblum, Attorney 

General, and Benjamin Gutman, Solicitor General.

BALMER, C.J.

The decision of the Court of Appeals and the judgment of 

the circuit court are affirmed.

______________

* Appeal from Lincoln County Circuit Court, Thomas O. Bradford, Judge. 

274 Or App 820, 361 P3d 661 (2015).
Cite as 361 Or 544 (2017) 545

Case Summary: Defendant was convicted of five counts. The convictions were 

reversed on appeal and remanded. On remand, defendant pled guilty to two of 

the original five counts. At resentencing, the trial court imposed a new sentence 

that was shorter in total than the original sentence, but included a sentence of 

12 months’ imprisonment on a misdemeanor count that had originally carried a 

sentence of probation only. Defendant challenged the new sentence as violating 

the rule against vindictiveness set out in State v. Partain, 349 Or 10, 239 P3d 232 

(2010), and North Carolina v. Pearce, 395 US 711, 89 S Ct 2072, 23 L Ed 2d 656 

(1969). The Court of Appeals affirmed, concluding that defendant’s second sentence did not trigger the “presumption of vindictiveness.” Held: A “presumption 

of vindictiveness” applies when a second sentence in aggregate is longer than the 

first sentence in aggregate; therefore, defendant’s second, shorter sentence did 

not violate the rule against vindictiveness.

The decision of the Court of Appeals and the judgment of the circuit court 

are affirmed.
546 State v. Febuary

BALMER, C. J.

The prophylactic rule of State v. Partain, 349 Or 

10, 239 P3d 232 (2010), protects against vindictiveness in 

the resentencing of a criminal offender after a successful 

appeal. Partain, in turn, was based on North Carolina v. 

Pearce, 395 US 711, 89 S Ct 2072, 23 L Ed 2d 656 (1969),

where the United States Supreme Court held that due process “requires that vindictiveness against a defendant for 

having successfully attacked [a] first conviction must play 

no part in the sentence [the defendant] receives after a 

new trial.” Id. at 725. In this case, the specific issue is how 

Partain and Pearce apply if an offender’s total sentence has 

decreased after resentencing, but a sentence imposed for 

one of several individual counts has increased. A separate 

and preliminary issue is whether this court and the Court 

of Appeals have jurisdiction to hear this case and review 

defendant’s claims. We conclude that the appellate courts 

have jurisdiction to consider defendant’s appeal. On the 

merits, we conclude that defendant’s sentence does not violate the rule against vindictiveness.

I. FACTUAL BACKGROUND

A jury found defendant guilty of five crimes relating 

to an incident where defendant provided a minor with alcohol 

and sexually abused her. Defendant was convicted and sentenced as follows: two terms of 75 months’ imprisonment for 

two counts of sexual abuse in the first degree, ORS 163.427; 

20 months’ imprisonment for one count of attempted sodomy 

in the second degree, ORS 163.395; 60 months’ probation for 

one count of providing alcohol to a person under 21 years of 

age, ORS 471.410(2); and 60 months’ probation for one count 

of sexual harassment, ORS 166.065(4)(a). The sentencing 

court ordered that the three prison terms run consecutively 

and that the probation terms run concurrently. In total, 

defendant was sentenced to 170 months’ imprisonment and 

60 months’ probation. Defendant appealed and the Court 

of Appeals reversed because of evidentiary error at trial. 

State v. Febuary, 253 Or App 658, 666, 292 P3d 604 (2012) 

(Febuary I).

On remand, defendant made a plea bargain with 

the state. Defendant pled guilty to one count of sexual abuse 
Cite as 361 Or 544 (2017) 547

in the first degree and one count of providing alcohol to a 

person under 21. The state dismissed the remaining three 

charges. The state asked for a sentence of 12 months on the 

providing alcohol conviction, on which the defendant originally had received only probation. Defendant argued that 

imposing any sentence of imprisonment on the providing 

alcohol count was vindictive and would violate his due process rights under Pearce.

After hearing arguments, the court sentenced 

defendant to 75 months’ imprisonment on the sexual abuse 

count and 12 months’ imprisonment on the providing alcohol 

count, to run consecutively. As a result, his final sentence 

was 87 months in prison. The judge stated that he had a 

“non-vindictive reason” for changing the sentence on the providing alcohol count: the nature of defendant’s crime, which 

he described as “malicious” and “profoundly offensive.” The 

judge explained that defendant’s crime was not “just a matter of leaving a jug of whiskey on the coffee table for a child 

to use while they’re watching television.” Rather, defendant 

provided alcohol to a minor “to facilitate the commission of 

sex abuse in the first degree.” The judge further stated that 

his previous decision to impose a sentence of probation for 

the providing alcohol conviction occurred in the context of 

the “overall [sentencing] scheme,” i.e., defendant’s otherwise 

total sentence of 170 months’ imprisonment. At resentencing, however, the single other count carried a sentence of 75 

months. The judge explained that the shorter total sentence 

motivated his decision to change the sentence on the misdemeanor from probation to 12 months’ imprisonment.

Defendant again appealed, arguing that the increased

sentence on the providing alcohol count was prohibited 

under Pearce and violated his due process rights. Defendant 

did not assert that the sentence violated any other statutory or constitutional limits. The Court of Appeals identified 

the issue as “the precise standard for measuring whether 

a new sentence triggers the presumption of vindictiveness,” 

which, it observed, “since the issuance of Pearce, ‘has been 

the subject of some confusion.’” State v. Febuary, 274 Or App 

820, 826, 361 P3d 661 (2015) (Febuary II) (quoting United 

States v. Campbell, 106 F3d 64, 67 (5th Cir 1997)). The court 

noted that the federal courts of appeals have split in their 
548 State v. Febuary

resolution of that issue, with a majority of circuits applying the “aggregate approach,” which looks at whether an 

offender’s total sentence has increased following a successful appeal and resentencing to apply the rule of Pearce. Id. 

A minority of circuits employ the “remainder aggregate” 

approach, which applies the rule of Pearce when “the new 

sentence on the remaining counts exceeds the original sentence on those counts.”1 Id. (quoting Campbell, 106 F3d at 

68).

The court then analyzed our decision in Partain

and concluded that, in that case, this court did not consider 

“the length or nature of the individual sentences that had 

been imposed by the trial court, but only the length of the 

total sentences that had been imposed.” Id. at 829. Here, 

because the length of the total sentence decreased, the court 

concluded that a presumption of vindictiveness did not apply 

and affirmed the trial court. Id. at 832.

Defendant petitioned for review, and we allowed 

the petition. After we allowed the petition, the state filed 

a motion to determine jurisdiction, contending that neither 

the Court of Appeals nor this court had appellate jurisdiction over the case. We instructed the parties to address that 

issue at oral argument.

II. JURISDICTION

The jurisdictional issue in this case is whether 

an appellate court may review a defendant’s due process 

1 In justifying its conclusion, the Court of Appeals stated, “We note, in particular, that the United States Court of Appeals for the Ninth Circuit has adopted 

the ‘aggregate package’ approach. Although we are not bound by the decision of 

the United States Court of Appeals for the Ninth Circuit, ‘Oregon courts often 

give particular weight to those decisions because Oregon lies in that circuit.’” 

Febuary II, 274 Or App at 830-31 (citation omitted; quoting Miller v. Pacific 

Trawlers, Inc., 204 Or App 585, 612 n 23, 131 P3d 821 (2006)). That assertion 

is incorrect. The persuasive authority of the Ninth Circuit on Oregon courts on 

general principles of federal law flows only from the strength of its reasoning; the 

Ninth Circuit’s geographic boundaries are irrelevant. This court has stated, “As 

to the meaning of the federal Constitution and laws, to which ‘the judges in every 

state shall be bound,’ US Const, Art VI, cl 2, we are bound only by the interpretations given those laws by the Supreme Court of the United States.” State v. Moyle, 

299 Or 691, 707, 705 P2d 740 (1985). And although this court and the Court of 

Appeals “ordinarily *** respect the decisions of lower federal courts on issues of 

federal law,” id., neither this court nor the Court of Appeals are bound by them. 

State v. Reyes-Camarena, 330 Or 431, 436 n 2, 7 P3d 522 (2000).
Cite as 361 Or 544 (2017) 549

challenge to a misdemeanor sentence in a case where the 

defendant was sentenced on both misdemeanor and felony 

convictions, and the defendant pleaded guilty. The state 

argues that because defendant is challenging the increased 

sentence on his misdemeanor conviction for providing alcohol to a minor, his appeal is governed by ORS 138.040 and 

ORS 138.050, and those statutes do not permit an appeal in 

the circumstances present here. Responding to defendant’s 

claim that ORS 138.222 confers jurisdiction here, the state 

argues that ORS 138.222 applies to the appeal and review of 

felonies only, and does not confer appellate jurisdiction over 

defendant’s case because defendant seeks review of his misdemeanor sentence and not his felony sentence. Defendant 

asserts that ORS 138.222 confers jurisdiction here regardless of the particular arguments that he makes on appeal. 

We agree with defendant and conclude that ORS 138.222 

confers appellate jurisdiction over this case.

We begin with basic principles: A criminal defendant 

does not have an inherent right to appeal; he or she must 

appeal pursuant to some statute authorizing the appeal and 

granting the appellate court jurisdiction. State v. Cloutier, 

351 Or 68, 74, 261 P3d 1234 (2011). Furthermore, the ability of a party to appeal a case, and of a court to hear it, is 

distinct from reviewability. State v. Montgomery, 294 Or 417, 

420, 657 P2d 668 (1983). “Appealability generally is concerned with whether an appeal can be taken at all. Usually, 

but not always, appeals lie only from final judgments and 

orders. Reviewability generally involves the consideration 

of a variety of rulings and orders made by the court, usually before judgment.” Id. (emphasis omitted). Therefore, 

we must conclude both that the judgment is appealable and 

that the claim defendant raises is reviewable.

Our analysis in Cloutier of the statutes that allow 

for appeals of criminal convictions is helpful. In that case, 

we explained that two statutes governing criminal appeals, 

ORS 138.040 and ORS 138.050, do not govern appeal and 

review in all criminal appeals, even though the text of those 

provisions might suggest as much. 351 Or at 90. Rather, 

those statutes must be read together with later-enacted ORS 

138.222. ORS 138.222(7) “begins by authorizing appeals 

of judgments of conviction based on a sentence for felonies 
550 State v. Febuary

committed on or after November 1, 1989.” Cloutier, 351 Or 

at 90. ORS 138.222(1) provides, “Notwithstanding the provisions of ORS 138.040 and 138.050, a sentence imposed for 

a judgment of conviction entered for a felony * * * may be 

reviewed only as provided by this section.” Based on those 

provisions, we concluded that ORS 138.222 governed appeal 

and review of sentences for felonies and therefore “ORS 

138.040 and ORS 138.050 * ** apply only to appeal and 

review of sentences for misdemeanor offenses.” Cloutier, 351 

Or at 91.

What Cloutier did not address, and what we must 

address in this case, is how appeal and review work in cases 

such as this, which include both felony and misdemeanor 

convictions and sentences. Appeals are generally taken from 

“final judgments and orders,” not sentences. Montgomery, 

294 Or at 420; see also ORS 138.053 (describing appealable orders and judgments in criminal cases). Here, a single judgment contains convictions and sentences for both a 

misdemeanor and a felony, so the question is whether ORS 

138.222 or ORS 138.050 governs the appeal and review.

Other provisions of ORS 138.222 provide for appellate jurisdiction and define the scope of review under that 

section:

“(4) In any appeal, the appellate court may review a 

claim that:

“(a) The sentencing court failed to comply with requirements of law in imposing or failing to impose a sentence;

“*****

“(7) Either the state or the defendant may appeal a 

judgment of conviction based on the sentence for a felony 

***.”

We interpret ORS 138.222 in light of the text, context, and 

legislative history. State v. Gaines, 346 Or 160, 171-73, 206 

P3d 1042 (2009). Our consideration of context includes the 

structure of the statute as a whole. See Wetherell v. Douglas 

County, 342 Or 666, 678, 160 P3d 614 (2007) (“This court 

does not look at one subsection of a statute in a vacuum; 

rather, we construe each part together with the other parts 
Cite as 361 Or 544 (2017) 551

in an attempt to produce a harmonious whole.” (Internal 

quotation omitted.)).

Both parties struggle to present a persuasive interpretation of the text in subsection (7)—“[a party] may 

appeal a judgment of conviction based on the sentence for 

a felony.” That phrase presents an immediate ambiguity: 

what does the term “based on the sentence for a felony” modify? Defendant contends that the term modifies “judgment of 

conviction,” so that the word “judgment” in ORS 138.222(7) 

means a judgment containing a felony conviction. But defendant does not explain why the legislature would use such a 

strange construction (“judgment of conviction based on the 

sentence for a felony”) to describe a concept that it describes 

clearly in other places. See, e.g., ORS 138.222(1) (“judgment 

of conviction entered for a felony”). Moreover, a judgment 

of conviction is not, within the ordinary understanding of 

that phrase, something that can be “based on the sentence.” 

Rather, the obverse is true: A sentence is based on a conviction. The state argues that “based on the sentence for a 

felony” modifies “appeal” and operates as a limit on reviewability, therefore barring defendant’s claims regarding his 

misdemeanor sentence. But that also is an unusual construction. The meaning of the words in isolation is not clear.

The structure of ORS 138.222 reveals an answer. 

Subsections (1) through (4) address reviewability, subsections (5) and (6) address appellate court procedure, and 

subsection (7) addresses appealability. See Cloutier, 351 Or 

at 90-91 (identifying ORS 138.222(1) to (4) as “specif[ying] 

the scope of review” and subsection (7) as “authorizing” the 

appeal of certain judgments); State v. Nix, 356 Or 768, 775-

76, 345 P3d 416 (2015) (same). The state’s proposed construction would have subsection (7) containing a grant of 

appealability and a limitation on reviewability. We think 

that it is unlikely that the legislature would describe with 

specificity the scope of review in subsections (1), (2), (3), 

and (4)—and then add to that definition an at-best ambiguous phrase in subsection (7), a subsection that otherwise addresses appealability. We think the phrase in subsection (7), “based on the sentence,” is more likely to be a 

reminder that ORS 138.222 as a whole concerns the review 

of sentences, and not review of other issues. See Cloutier, 351 
552 State v. Febuary

Or at 97 (“Redundancy in communication is a fact of life and 

of law.”).

ORS 138.222 also contains a significant clue as to 

what the legislature intended in cases that involve multiple 

convictions. ORS 138.222(5)(a) indicates that if an appellate court determines that a sentencing error has been 

committed that requires resentencing, “the appellate court 

shall remand the entire case for resentencing[,]” and on 

remand, the sentencing court “may impose a new sentence 

for any conviction in the remanded case.” (Emphasis added.) 

Nothing in that provision indicates that misdemeanor sentences are not part of “the entire case,” as that phrase is 

used in ORS 138.222(5)(a). Similarly, ORS 138.222(5)(b) 

confirms that the legislature contemplated that the appeal 

of a judgment containing convictions for felonies and misdemeanors be heard under that section, as it states that a 

reviewing court must follow certain procedures “in a case 

involving multiple counts of which at least one is a felony.” 

We conclude that “[a party] may appeal a judgment of conviction based on the sentence for a felony” means that a 

judgment appealable under ORS 138.222(7) must contain 

at least one felony conviction and may contain one or more 

misdemeanor convictions.

That conclusion is consistent with our earlier interpretation of the statute in Cloutier. There, we described 

ORS 138.222 as “govern[ing]” the “appeal and review of sentences imposed for felonies.” Cloutier, 351 Or at 91. By comparison, as noted, Cloutier described ORS 138.040 and ORS 

138.050 as applying “only to appeal and review of sentences 

for misdemeanor offenses.” Id. (emphasis added). The omission of that word of exclusivity in describing ORS 138.222 as 

“govern[ing]” felony appeals, allows for the possibility that 

ORS 138.222 also applies to misdemeanor convictions that 

are included in judgments containing felony convictions. Id. 

Cloutier thus implied the conclusion we arrive at here.

In sum, we interpret subsection (7), subject to the 

other conditions identified in that subsection, to allow the 

state or a defendant to appeal a judgment containing one or 

more convictions for a felony, and to appeal a judgment that 

includes one or more convictions for a felony and one or more 
Cite as 361 Or 544 (2017) 553

convictions for a misdemeanor. Those cases may be reviewed 

as provided in ORS 138.222(1) - (4).

Applying the foregoing to this case, defendant’s 

judgment of conviction contains two counts: sexual abuse in 

the first degree, a felony; and furnishing alcohol to a person 

under 21, a misdemeanor. Because the judgment contains a 

conviction for a felony, defendant may appeal from the judgment under ORS 138.222(7). That provision establishes the 

jurisdiction of this court and the Court of Appeals to hear 

defendant’s case. Defendant challenges his sentence for violating his due process rights. That argument is a “claim that 

*** [t]he sentencing court failed to comply with requirements of law in imposing” a sentence, so ORS 138.222(4)(a)

grants appellate courts the power to review defendant’s 

claim. Revewiability is thus also established.

ORS 138.222 confers on the appellate courts jurisdiction to hear this case and review defendant’s claims, and 

we therefore deny the state’s motion to dismiss for lack of 

jurisdiction.

III. CONSTITUTIONAL ARGUMENTS

A. State v. Partain

We begin our discussion of defendant’s constitutional arguments with Partain, where this court addressed 

“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 that case, the defendant was originally convicted of 12 

sex crimes and sentenced to 420 months in prison. Id. at 

12. On appeal, the Court of Appeals vacated the sentences 

on four counts of conviction and remanded the entire case 

for resentencing. Id. On remand, the trial court imposed 

sentences on the remaining eight counts that totaled 600 

months’ imprisonment. Id. “The court did not state any 

reasons for imposing the lengthier overall sentence” and 

there was no new information present in the record. Id. 

The defendant appealed again, this time challenging the 

lengthier sentence as incompatible with this court’s decision 

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

prohibited trial courts from imposing a harsher sentence 
554 State v. Febuary

on retrial after a defendant successfully appealed an initial 

conviction.

In considering the Partain defendant’s challenge, 

this court concluded that legislative changes to certain sentencing statutes had “undermine[d] the essential premise 

for the holding in Turner.” Partain, 349 Or at 22. Abandoning 

Turner, the court looked for a source of law to address the 

possibility of vindictiveness playing a role in the resentencing of a defendant following a successful appeal of a conviction. Finding that no part of the Oregon Constitution 

“answers the question directly,” the court turned to the 

guarantees of the due process clause, as analyzed in Pearce, 

as protecting defendants’ rights in that regard. Partain, 

349 Or at 23. Oregon courts were, of course, already bound 

by Pearce; in Partain this court reaffirmed that obligation 

and determined that neither the Oregon Constitution nor 

Oregon statutes required more than the federal rule. The 

Partain court stated the rule of Pearce:

“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.”

Partain, 349 Or at 25-26.

This case presents the question of how to apply that 

rule in a case with multiple counts of conviction. Neither this 

court in Partain nor the Supreme Court in Pearce or later 

cases has squarely addressed that issue. As the Supreme 

Court is the “final arbiter of federal constitutional requirements,” it is our task here to “determine how that Court 

would decide” this case. State v. Williams, 357 Or 1, 16, 346 

P3d 455 (2015). To do so, we turn to Pearce and its progeny to better understand the constitutional issues. We then 

consider what rule should be applied in the circumstances 
Cite as 361 Or 544 (2017) 555

here that would be faithful to the constitutional rules and 

concerns present in the Supreme Court’s decisions. Finally, 

we will apply that rule to the facts of this case.

B. North Carolina v. Pearce and its Progeny

In Pearce, the defendant was convicted of a single 

offense and sentenced to a term of imprisonment. 395 US 

at 713. He appealed his conviction and obtained its reversal 

and an order for a new trial. Id. He was convicted again 

and sentenced to a prison term longer than his original sentence. Id. The defendant sought post-conviction relief, challenging the longer sentence. Id. The United States Supreme 

Court concluded that “penalizing” the defendant at his new 

trial “for having successfully pursued a statutory right of 

appeal or collateral remedy” violated due process. Id. at 

724 (internal quotation omitted). The Court articulated 

two related but separate rules to safeguard defendants’ due 

process rights. First, it held “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.” Id. at 725. And second, it held that “a defendant 

[must] be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” Id. The Court 

noted that even the threat of vindictiveness in sentencing 

might “chill the exercise of basic constitutional rights,” id.

at 724 (quoting United States v. Jackson, 390 US 570, 582, 

88 S Ct 1209, 20 L Ed 2d 138 (1968)), so the Court created a 

so-called “prophylactic rule”: A reviewing court would “presume” a “more severe” second sentence to be vindictive and 

would invalidate it unless the resentencing judge identified 

“objective information in the record justifying the increased 

sentence.” United States v. Goodwin, 457 US 368, 373-74 & 

n 5, 102 S Ct 2485, 73 L Ed 2d 74 (1982) (citing Pearce, 395 

US at 726).

In Pearce, “[b]eyond doubt, vindictiveness of a sentencing judge is the evil the Court sought to prevent.” Texas 

v. McCullough, 475 US 134, 138, 106 S Ct 976, 89 L Ed 2d 

104 (1986). Understanding what is meant by “vindictiveness,” then, is an essential step in determining if it is present in this case. The Court in Pearce emphasized that the 

core due process concern is to avoid “penalizing” defendants 
556 State v. Febuary

who chose to exercise their right to appeal. Pearce, 395 US at 

724 (quoting Jackson, 390 US at 581); see also Bordenkircher 

v. Hayes, 434 US 357, 363, 98 S Ct 663, 54 L Ed 2d 604 

(1978) (“To punish a person because he has done what the 

law plainly allows him to do is a due process violation of the 

most basic sort.”). But a prominent purpose of the criminal 

justice system is to punish offenders, so “[t]he presence of 

a punitive motivation, therefore, does not provide an adequate basis for distinguishing” legitimate punishment from 

vindictive punishment. Goodwin, 457 US at 372-73. Rather 

than a punitive motive, the touchstone for vindictiveness in 

sentencing is the presence of an “improper motive.” Id. The 

Court has suggested a number of possible improper motives: 

“punishing [a] defendant for his having succeeded in getting his original conviction set aside,” Pearce, 395 US at 723-

24; enforcing the “institutional bias inherent in the judicial system against the retrial of issues that have already 

been decided,” Goodwin, 457 US at 376; engaging in “selfvindication,” McCullough, 475 US at 139 (quoting Chaffin v. 

Stynchcombe, 412 US 17, 27, 93 S Ct 1977, 36 L Ed 2d 714 

(1973)); or “discouraging * ** meritless appeals,” Chaffin, 

412 US at 27.2

The presence of an “improper motive” by itself, 

however, does not constitute a due process violation. The 

improper motive must also have affected the proceedings in 

some way. The Court has stated that, to violate due process, 

the improper motive must lead to a “more severe sentence,” 

Pearce, 395 US at 726, and has used similar terms indicating that the improper motive must make the defendant’s 

sentence in some way worse or longer. See, e.g., Chaffin, 412 

US at 24 (referring to “increased sentences,” “higher sentences,” and “harsher resentencing”); Goodwin, 457 US at 

373 (referring to “action detrimental to the defendant”). 

Indeed, because “[m]otives are complex and difficult to 

prove,” a defendant need not even show that one existed in 

2 The Court’s treatment of various motives has evolved; the purpose of our 

recitation here is to provide examples of motives that have been considered 

improper and not to make a current statement of law. See, e.g., McCullough, 475 

US at 139 (“[In certain circumstances] there is no justifiable concern about ‘institutional interests that might occasion higher sentences by a judge desirous of 

discouraging what he regards as meritless appeals.’” (Quoting Chaffin, 412 US at 

27.)).
Cite as 361 Or 544 (2017) 557

order to prevail in a Pearce challenge. Goodwin, 457 US at 

373. Rather, the point of Pearce was that a reviewing court 

could presume the existence of an improper motive when 

there is a “reasonable likelihood” that a defendant’s “increase 

in sentence is the product of actual vindictiveness,” that is, 

the product of an improper motive. Alabama v. Smith, 490 

US 794, 799, 109 S Ct 2201, 104 L Ed 2d 865 (1989) (internal quotation omitted). That presumption can be overcome if 

the sentencing judge identified “objective information in the 

record justifying the increased sentence.” Goodwin, 457 US 

at 374.

Whether there is a reasonable likelihood of actual 

vindictiveness also depends in part on the circumstances 

of the case and the structure of the particular substantive 

criminal laws and sentencing parameters in which that case 

occurred—the “resentencing setting.” See Wayne R. LaFave, 

Jerold H. Israel, Nancy J. King, & Orin S. Kerr, 6 Criminal 

Procedure § 26.8(c), 1110 (4th ed 2015) (“The vindictiveness 

presumption of Pearce does not apply to all settings presenting a resentencing following a reversed conviction and subsequent reconviction.”). The Supreme Court has examined 

several ways in which a defendant’s particular path through 

a state’s criminal justice system may or may not give rise to 

a presumption of vindictiveness. See id. at 1110-16 (summarizing cases). For example, when a defendant’s initial conviction follows a guilty plea and his conviction after appeal 

follows a jury trial, a presumption of vindictiveness will not 

apply because “the increase in sentence is not more likely 

than not attributable to the vindictiveness on the part of the 

sentencing judge.” Smith, 490 US at 801.

In sum, the due process violation described in Pearce

occurs in principle when two elements are present: an 

“improper motive” that causes a “more severe” second sentence. In practice, even if there is no actual evidence of an 

improper motive, but the resentencing setting and the greater 

severity of the new sentence suggest that there is a “reasonable likelihood” of actual vindictiveness, a reviewing court 

will presume an improper motive and the state must “rebut 

the presumption that an increased sentence * * * resulted 

from vindictiveness.” Wasman v. United States, 468 US 559, 
558 State v. Febuary

569, 104 S Ct 3217, 82 L Ed 2d 424 (1984). A resentencing 

setting that permits a presumption of improper motive, however, does not violate a defendant’s rights unless the judge 

actually imposed a “more severe sentence upon [the] defendant after a new trial.” Pearce, 395 US at 726. If a defendant 

is unable to establish the presumption of improper motive, 

the defendant always may show a due process violation by 

“affirmatively prov[ing] actual vindictiveness,” Wasman, 

468 US at 569, with proof that an improper motive caused 

the “more severe” subsequent sentence, such as statements 

by the judge demonstrating actual vindictiveness.

With that understanding of the Pearce rule, we turn 

to the defendant’s arguments as to how the resentencing in 

his case violates that rule. Regarding the first element, an 

“improper motive,” defendant argues that the resentencing 

setting gives rise to a presumption of an improper motive 

because the same judge imposed the first and second sentences. As to the second element, a “more severe sentence,” 

defendant argues that, in multi-count cases like his, a second sentence can be “more severe” and support a Pearce

violation even if it is shorter than the original sentence. To 

prevail on his constitutional claim, defendant must establish both elements; ultimately, we conclude that he does not 

establish either.

C. Subconscious psychological effects are not “improper 

motives.”

Defendant argues that the fact that the same judge 

imposed his first and second sentences justifies the presumption of an improper motive. He asserts that whenever 

the same judge resentences a defendant, the judge “holds 

a previous, self-generated conception of the total appropriate punishment for a defendant” and thus any subsequent 

harsher sentence should be presumed vindictive. Defendant 

explains that certain “mental processes,” such as “cognitive 

dissonance,” “confirmation bias,” and the “anchoring-andadjustment heuristic,” “create a near-ubiquitous human 

tendency to insufficiently adjust to new information after 

previously taking a position.” Defendant cites a number 

of psychology studies that purport to establish that those 

effects cause people, including judges, to “self-vindicate” 
Cite as 361 Or 544 (2017) 559

prior decisions and to discount the importance of new facts. 

In the words of one study quoted by defendant, a judge 

“tends to make the resentencing decision on the basis of 

personal psychological motivations rather than the merits 

of the case.” James P. Monacell, An Application of Cognitive 

Dissonance Theory to Resentencing and Other Reappearances 

by the Same Judge, 1 L & Hum Behav 385, 390 (1977).

The state argues that subconscious cognitive biases 

are not “improper motives” under Supreme Court case law. 

We agree with the state, for three reasons. First, the influence of subconscious or unconscious biases can be profound, 

but precisely because they are subconscious or unconscious, 

those biases lack purpose or intention and therefore do not 

demonstrate the improper motive that is a necessary part 

of a Pearce due process violation. Second, the psychological research that underlies defendant’s arguments existed 

at the time of Supreme Court decisions in this area, and 

the Court has demonstrated its awareness of those issues. 

See Goodwin, 457 US at 377 (stating that “subconscious[] 

motivat[ions]” might be part of a “vindictive * ** judicial 

response” to a defendant’s appeal).3

 But the Court has not 

indicated that those theories justify applying the expansive 

rule urged by defendant. Indeed, the prophylactic rule first 

articulated in Pearce does not require any inquiry into the 

reasons (subconscious, conscious, or otherwise) behind a 

sentencing decision, and so the rule itself provides an avenue for defendants to challenge any sentencing decisions 

they believe are influenced by subconscious or unconscious 

cognitive biases. Finally, defendant’s argument, if followed 

to its logical conclusion, conflicts with the fundamental 

tenet of our justice system that a judge’s decisions result 

from an impartial application of the law to the facts, and 

are not the result of a particular judge’s psychological predilections. The profound implications of defendant’s argument 

caution against its adoption in the absence of compelling 

3 For example, defendant cites a “classic study” from 1959, Leon Festinger 

and James M. Carlsmith, Cognitive Consequences of Forced Compliance, 58 J 

Abnormal and Soc Psychol 203 (1959), and a 1977 law review article addressing 

the application of psychological theories to the circumstance of judge resentencing, Monacell, 1 L & Hum Behav 385. Those papers predate Goodwin (1982),

McCullough (1986), Smith (1989), and other relevant Supreme Court cases.
560 State v. Febuary

proof of its pervasiveness. The mere fact that the same judge 

resentences a defendant is not a basis for a presumption of 

improper motive.

D. In multiple count convictions, a longer aggregate sentence is “more severe.”

Defendant makes a second argument that a presumption of vindictiveness should apply because the mathematical relationship between his first and second sentences 

demonstrates that his second sentence, though shorter overall, is nonetheless more severe. Defendant proposes that 

we apply the so-called “remainder aggregate approach” to 

multi-count cases to determine whether the second sentence

is “more severe” and warrants the presumption of vindictiveness. Under the remainder aggregate approach, in cases 

where a defendant with multiple convictions succeeds in 

having some of the convictions reversed on appeal, the second sentence is “more severe” when the total sentence on the

counts at resentencing exceeds the total sentence on those 

counts in the original sentence.4

 Defendant asserts that the 

remainder aggregate approach is legally required by Oregon’s

“per-offense” sentencing system, “in which each offense 

must be given a single, appropriate sentence.” Defendant 

suggests that “because trial courts are presumed to follow 

the law,” if a judge on remand adjusts one count’s sentence 

because of the sentences imposed on other counts in the 

same case, in the absence of new facts to explain the change, 

a reviewing court must presume an improper vindictive 

motive. Defendant fails to identify any authority that establishes that point, but he implies that the state’s sentencing 

policies require that result. See, e.g., Oregon Sentencing 

Guidelines Implementation Manual 7 (1989) (stating the 

“principle that presumptive punishments should be based on

4 If a reviewing court applied defendant’s proposed remainder aggregate 

approach to this case, it would identify the counts of conviction in the later

proceeding—here, one count of sexual abuse in the first degree and one count of 

providing alcohol to a person less than 21 years of age—and compare the sentences received for those counts in the initial and subsequent sentencing proceedings. The combined sentence on those two counts at defendant’s initial sentencing 

was 75 months’ imprisonment and 60 months’ probation; on remand, it was 87 

months’ imprisonment. As the total sentence on those two counts is longer in the 

second sentencing, that sentence is more severe under the remainder aggregate 

approach.
Cite as 361 Or 544 (2017) 561

the seriousness of the crime of conviction and the offender’s 

criminal history”).

The state counters that that approach incorrectly 

conceives of the sentencing process as “mechanical” and 

“segmented” and ignores the fact that, under the guidelines, 

“trial courts may consider the total sentence, and the relationship among individual sentences, in arriving at a sentence on each count.” See, e.g., ORS 138.222(5)(b) (instructing an appellate court, after reversing one or more counts in 

a multi-count case, to remand the entire case “for resentencing on the affirmed count or counts”). The proper approach 

to analyzing multi-count cases at resentencing, the state 

argues, is the “aggregate package” approach. Under that 

approach, a reviewing court compares the total length of the 

initial sentence and subsequent sentence and presumes an 

improper motive when the aggregate second sentence is longer than the first.5

 The state argues that a judge’s consideration of the total sentence length when imposing a sentence 

on one component count, as occurred here, is appropriate 

and that the remainder aggregate approach is incorrect.6

We agree with the state. A judge has discretion 

to set the length of a sentence within statutory and constitutional parameters. State ex rel Huddleston v. Sawyer, 

324 Or 597, 615, 932 P2d 1145, cert den, 522 US 994 (1997)

(“[C]ourts have inherent power to structure sentences in

certain respects” subject to the legislature’s “‘power to declare

what punishment may be assessed.’” (Quoting State v. Smith, 

128 Or 515, 524, 273 P 323 (1929).)); see also Apprendi v. 

New Jersey, 530 US 466, 481, 120 S Ct 2348, 147 L Ed 2d 

5 A reviewing court applying the “aggregate package” approach here would 

compare the total length of defendant’s original sentence—170 months’ imprisonment and 60 months’ probation—with the total length of the new sentence—

87 months’ imprisonment—and conclude that the second sentence was not “more 

severe” because the new sentence in aggregate was shorter than the original 

sentence in aggregate.

6 In addition to the aggregate package approach and the remainder aggregate approach, there is a third method to comparing sentences in multi-count 

cases: the count-by-count approach. Under the count-by-count approach, an 

overall sentence is considered more severe if the sentence on any single count 

increases on resentencing. Defendant advocated the count-by-count approach in 

his brief, but abandoned that rule in favor of the remainder aggregate approach 

at oral argument. We agree with defendant that the count-by-count approach is 

not warranted and disregard it.
562 State v. Febuary

435 (2000) (“We have often noted that judges in this country have long exercised discretion ** * in imposing sentences 

within statutory limits in the individual case.” (Emphasis in 

original.)); Wasman, 468 US at 563 (“It is now well established that a judge or other sentencing authority is to be 

accorded very wide discretion in determining an appropriate sentence.”). Defendant identifies no authority indicating 

that a judge’s “inherent power” and “very wide discretion” in 

sentencing excludes crafting a “package” sentence in which 

the length of component counts are set in order to reach a 

desired total sentence. To the contrary, authorities in a number of other jurisdictions that have affirmed the propriety of 

allowing judges to “craft sentences on the various counts as 

part of an overall sentencing scheme.” State v. Hudson, 293 

Ga 656, 660, 748 SE2d 910, 913 (2013); see also United States 

v. Handa, 122 F3d 690, 692 (9th Cir 1997), cert den, 522 US 

1083 (1998) (adopting a “package” metaphor for sentences in 

multi-count cases as “reflecting the likelihood that the sentencing judge will have attempted to impose an overall punishment taking into account the nature of the crimes and 

certain characteristics of the criminal”; collecting similar 

federal cases); People v. Johnson, 2015 CO 70, ¶ 26, 363 P3d 

169, 178 (2015) (explaining that the “rationale” supporting 

the remainder aggregate approach is the assumption that 

judges craft an “overall sentencing scheme” in multi-count 

cases).

In Oregon as well, trial courts may assemble sentences on individual counts to form a “package” sentence. See, 

e.g., ORS 138.222(5)(b) (allowing trial judges to re-sentence

all convictions in a multi-count case when only some are 

reversed on appeal). That discretion, of course, is limited 

to the punishments authorized by statute. ORS 137.010(7) 

permits a misdemeanant to be punished with a fine, a term 

of imprisonment, or both; the crime of providing alcohol to 

a person under the age of 21 years is punishable by a term 

of imprisonment of up to one year. ORS 471.410(5); ORS 

161.615(1). Within those parameters, a trial court has discretion to set an offender’s sentence, which may include creating a package sentence.

Once the scope of judicial discretion in setting sentences is clear, there remains no reason to adopt the remainder
Cite as 361 Or 544 (2017) 563

aggregate approach as the metric for determining when a 

resentencing is “more severe.” Pearce’s animating concern 

was that criminal defendants might be punished for appealing their sentences, or deterred from doing so by the possibility that a successful appeal might result in a more severe 

punishment. The impact of a sentence on a defendant, and 

its likely incentivizing effect on his decision to appeal, is best 

captured by the aggregate package approach. Defendants’ 

decisions to appeal, after all, are primarily motivated by a 

desire to reduce their overall time in prison, rather than to 

redistribute prison time among multiple counts. See United 

States v. Horob, 735 F3d 866, 871 (9th Cir 2013) (“If there is 

a possibility of a sentence reduction and no risk of a sentence 

increase, defendants will continue to appeal.”). For the purposes of establishing a Pearce violation, a sentence is “more 

severe” when the total length of the second sentence exceeds 

that of the first, regardless of the counts of conviction.

Defendant makes a third argument that deserves 

a response. Defendant claims that the “aggregate package” 

approach to multi-count cases allows a judge to vindictively 

sentence a defendant as long as the new sentence is less in 

total than the original. In some cases, as in this one, the 

reversal of some counts on appeal means that the second 

sentence cannot exceed the original sentence. In those cases, 

defendant argues, “the mere fact that the trial court did not 

do what it could not have done does not logically reduce the 

likelihood of a vindictive motivation.”

We agree with defendant that under the aggregate 

package approach, there remains at least the possibility of 

judicial vindictiveness at resentencing. But a “speculative” 

possibility of vindictiveness does not warrant the application 

of the prophylactic rule here. McCullough, 475 US at 139.

Because the rule operates in the absence of proof of actual 

vindictiveness and “often blocks a legitimate response to 

criminal conduct,” Wasman, 468 US at 566 (internal quotation omitted), the Supreme Court has “restricted application of Pearce to areas where its ‘objectives are thought most 

efficaciously served.’” McCullough, 475 US at 138 (quoting 

Stone v. Powell, 428 US 465, 487, 96 S Ct 3037, 49 L Ed 2d 

1067 (1967)); see also Wasman, 468 US at 566 (“Because of 

its severity, the Court has been chary about extending the 
564 State v. Febuary

Pearce presumption of vindictiveness.” (Internal quotation 

omitted.)). Furthermore, even with the attendant possibility of unconstitutional vindictiveness, “[t]he possibility of a 

higher sentence [is] recognized and accepted as a legitimate 

concomitant of the retrial process.” Chaffin, 412 US at 25 

(citing Pearce, 395 US at 723); see also Partain, 349 Or at 26 

(holding that “a trial court lawfully may impose a harsher 

sentence on a defendant after retrial or remand” as long as 

the court does not do so vindictively). But a defendant in 

those circumstances is not unprotected. At resentencing, 

a defendant may ask the judge to explain the reasoning 

behind the sentencing decision and the explanation, or lack 

thereof, may be evidence that would indicate actual vindictiveness by showing the judge’s improper motive. Smith, 490 

US at 799-800 (citing Wasman, 468 US at 569).7

IV. CONCLUSION

Defendant argues that his due process rights were 

violated when the trial judge initially imposed a sentence 

of 60 months’ probation on a misdemeanor conviction and 

on remand imposed a sentence of 12 months’ imprisonment 

for the same misdemeanor. The sentence was for one conviction out of several that arose out of the same criminal incident. On the other convictions, his initial sentence included 

170 months’ imprisonment; on remand, his sentence for 

the single other conviction was 75 months’ imprisonment. 

Defendant asserts that, in increasing the sentence on his 

misdemeanor conviction, the judge violated the rule against 

vindictiveness set out in Pearce and Partain. Defendant 

argues that a presumption of vindictiveness should apply 

because there is a “reasonable likelihood” of actual vindictiveness, based on the fact that the same judge imposed the 

initial and subsequent sentences, and the fact that when 

7 We note that a number of statutes and rules require trial courts, in certain 

circumstances, to make findings and otherwise explain sentencing decisions, 

which then may be subject to appellate review. See, e.g., ORS 137.671 (trial court 

may depart from presumptive felony sentences upon making certain findings); 

OAR 213-008-0001 to 213-008-0007 (same); ORS 137.123(5) (trial court may 

impose consecutive rather than concurrent sentence upon making certain findings). We express no opinion about how such statutes and rules relate to the kind 

of explanation referred to in Pearce and Partain, but only observe that it is a 

routine practice in sentencing for trial courts to make findings and offer grounds 

for exercising their discretion to impose a particular sentence.
Cite as 361 Or 544 (2017) 565

analyzed under the remainder aggregate approach, defendant’s second sentence was “more severe” than the first.

For the reasons discussed above, the mere fact that 

the same judge presides over an initial and subsequent proceeding does not warrant the presumption of vindictiveness. 

We also reject defendant’s claim that his later sentence was 

“more severe” because the trial increased the sentence for 

one of his convictions. Rather, we conclude that the correct 

approach is to compare the aggregate original sentence to 

the aggregate sentence on remand. Defendant’s initial sentence was 170 months’ imprisonment and 60 months’ probation, and his subsequent sentence was 87 months’ imprisonment. Because defendant’s sentence on remand was not 

“more severe” than his initial sentence, there is no presumption of an improper motive on the part of the trial judge. 

Defendant presented no other evidence that the trial court 

acted vindictively or out of an improper motive when sentencing him on remand. The trial judge acted within the 

requirements of due process and did not violate the Pearce 

rule.

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