- Court: Oregon Court of Appeals
- Area(s) of Law: Sentencing
- Date Filed: 10-19-2016
- Case #: A155858
- Judge(s)/Court Below: Tookey, J. for the Court; Sercombe, P.J.; & Flynn, J.
- Full Text Opinion
Defendant appealed the trial court’s resentencing decision on remand after original appeal. Defendant argued that the trail court at the resentencing hearing could not impose a longer sentence than it originally had after trial.
Defendant argued on appeal that the trial court in the resentencing hearing violated his due process rights when it vindictively changed the Defendant’s sentences from concurrent to consecutive in response to Defendant’s successful appeal of some counts.
State argued that the trial court's decision was not vindictive.
Under Oregon’s case law, a resentencing court may increase a defendant’s original sentence if the judge’s reasons appear on the record, are based on facts of which the original judge was unaware, and the sentence must not be a product of vindictiveness.
The Court found that there was no presumption of vindictiveness in this case because the total original sentence was longer than the resentence, therefore the Defendant had to prove actual vindictiveness. The Court held that the trial court’s decision at the resentencing hearing effectively punished Defendant for his success on appeal and was therefore vindictive.
Remanded for resentencing.