S057581, Opinion — State v. Partain

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Argued and submitted March 2, decision of Court of Appeals affirmed in part on
different grounds; judgment of circuit court vacated, and case remanded to circuit
court for resentencing in accordance with this opinion September 10, 2010, petition
for reconsideration denied February 3, 2011

STATE OF OREGON,
Petitioner on Review,
v.
RICHARD DALE PARTAIN,
Respondent on Review.
(CC 03P3038; CA A132336; SC S057581)
239 P3d 232

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CJS, Criminal Law § 1473.

# En Banc

On review from the Court of Appeals .*

Susan G. Howe, Senior Assistant Attorney General,
Salem, argued the cause and filed the brief for petitioner on
review. With her on the brief were John R. Kroger, Attorney
General, and Jerome Lidz, Solicitor General.

Ernest G. Lannet, Chief Deputy Defender, Salem, argued
the cause and filed the brief for respondent on review. With
him on the brief was Peter Gartlan, Chief Defender, Office of
Public Defense Services.

GILLETTE, J.

The decision of the Court of Appeals is affirmed in part on
different grounds. The judgment of the circuit court is
vacated, and the case is remanded to the circuit court for
resentencing in accordance with this opinion.

Walters, J., dissented and filed an opinion.

*Appeal from the Polk County Circuit Court, William M. Horner, Judge. 228
Or App 329, 208 P3d 526 (2009).

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# GILLETTE, J.

This case concerns the propriety of a 600-month
prison sentence imposed on a defendant in a sex abuse case,
after the Court of Appeals had vacated the 420-month sen-
tence that the trial court originally had imposed. On defen-
dant's appeal from the second sentence, the Court of Appeals
reversed, holding that the trial court had violated the rule
announced by this court in State v. Turner, 247 Or 301, 313,
429 P2d 565 (1967)-that, when a defendant is retried after a
successful appeal of his or her conviction, the court in the sec-
ond proceeding may not impose a harsher sentence than had
been imposed in the original proceeding. State v. Partain, 228
Or App 329, 208 P3d 526 (2009). Before this court, the state
argues that the rule from Turner either does not apply to the
circumstances of this case or, in any event, should be aban-
doned in favor of a rule that permits imposition of a longer
sentence on remand if the trial court is able to justify that
sentence on nonvindictive grounds. We agree with the state
that Turner should be abandoned. We also accept a version of
the test that the state proposes, but we conclude that the
question whether that test has been met requires further
development of the record. We therefore affirm the decision
of the Court of Appeals to remand the case to the trial court.

In 2003, defendant was convicted of multiple sex
crimes-12 in all-in a single proceeding. At sentencing, the
trial court imposed various sentences and ordered that cer-
tain of the sentences be served consecutively to others.
Altogether, the sentences required defendant to serve
420 months in prison. The judgment stated, with respect to
each sentence, that defendant would not be eligible for any
sentence reduction program.

Defendant appealed, arguing (1) that the trial court
had erred in requiring that defendant serve the sentences
imposed on four of the convictions consecutively to certain
other sentences, and (2) that, with respect to the same four
sentences, the trial court had erred in denying defendant eli-
gibility for sentence reduction programs without making cer-
tain findings in open court that, under ORS 137.750, are
required when sentences are so limited. At some point in the
appeal, the state conceded error with respect to defendant's

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second argument, and joined with defendant in a motion to
vacate the erroneous sentences and to remand the entire case
for resentencing. The Court of Appeals granted the motion.

On remand, no new evidence or information was
placed on the record. In entering its sentence on remand, the
trial court discharged the four sentences that had been the
focus of defendant's appeal, but structured the remaining
sentences in a way that resulted in an overall term of
600 months in prison. The court did not state any reasons for
imposing the lengthier overall sentence.

Defendant appealed again, this time arguing that,
because the total sentence imposed on remand was longer
than the total sentence imposed in the original proceeding,
the sentence violated the "no harsher sentence" rule of
Turner (described more fully below, 349 Or at 15-16).
Because Turner was a case involving a retrial rather than a
resentencing, defendant also relied on a Court of Appeals
decision-State v. Stockman, 43 Or App 235, 603 P2d 363
(1979)-that held that the Turner rule applied when a case
was remanded after a successful appellate challenge to a sen-
tence on grounds other than excessiveness. The state
responded that the rules of Turner and Stockman have been
legislatively superseded by a 1993 amendment to ORS
138.222(5)(a), which provides that, when a case is remanded
because of a sentencing error, the sentencing court "may
impose a new sentence for any conviction in the remanded
case." Or Laws 1993, ch 692, § 2(5). The state also suggested
that Turner was directed only at sentences that are imposed
by a court to punish a defendant for seeking appellate review
and that, in this case, the new sentences were based solely on
the abhorrent nature of the crimes.

The Court of Appeals rejected the state's contention
that the legislature impliedly repealed Turner and Stockman
when it later amended ORS 138.222(5)(a). Partain, 228 Or
App at 335. The court also rejected the state's suggestion that
Turner prohibits harsher sentences on remand only when the
sentencing court's motivation was to punish the defendant
for appealing: It observed that, in Turner, this court explicitly
described the rule as a prophylactic one, adopted to avoid the
difficult task of determining a trial court's motives. Id. at

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335-36 (quoting Turner, 247 Or at 314). Ultimately, the Court
of Appeals concluded that, under this court's decision in
Turner and its own decision in Stockman, the trial court had
erred in imposing a greater total sentence on remand. Partain,
228 Or App at 336. We allowed the state's petition for review.

The state argues that the Court of Appeals erred on
two grounds: (1) the court failed to recognize that the Turner
"no harsher sentence" rule is limited to cases in which the
defendant has been retried after successfully challenging his
or her conviction, and does not apply when a defendant is
before a trial court solely for resentencing after successfully
challenging the lawfulness of the original sentence; and
(2) the court also failed to recognize that, in light of certain
changes in Oregon's sentencing laws, the Turner rule is no
longer viable. Both of those arguments call for a close exami-
nation of the Turner case, a task to which we now turn.

The defendant in Turner was convicted of assault
and initially received a five-year sentence. He successfully
appealed his conviction and the case was remanded for a new
trial. In the second trial, defendant was convicted again, but
this time the trial judge sentenced him to seven years in
prison-two years more than the original trial court had
imposed. The defendant appealed, arguing that the trial
court could not constitutionally impose a longer prison sen-
tence than the one imposed in the original trial.

In its opinion in Turner, the court described its
overall methodology for analyzing the issue in terms of
"weigh[ing] the public interest in being protected from per-
sons found guilty of crimes and the individual's interest in
exercising rights guaranteed him by constitution, statute or
judicial decision." 247 Or at 312. The court identified the indi-
vidual defendant's interest in terms of the statutory right of
appeal, and it concluded that permitting a trial court to
impose a more severe sentence after a successful appeal
would have a "chilling effect" on a defendant's exercise of that
right. Id. at 313. The court did not, however, explain its rea-
soning or identify any source of law for the balancing
approach that it adopted.

The court in Turner then considered the public inter-
est at issue, i.e., an interest in allowing trial courts to impose

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whatever lawful sentences they deemed to be appropriate,
including a harsher sentence, when defendants are retried
after successfully appealing from some aspect of their previ-
ous conviction. The court suggested that the public interest in
such a scheme was relatively weak, rejecting, as contrary to
logic and its own prior case law, most of the reasons that had
been offered for upholding a harsher sentence imposed after
retrial.1 It then announced the results of its balancing analy-
sis, holding that

"the interest of the public and the individual can best
be served by the following rule: After an appeal or post-
conviction proceeding has resulted in the ordering of a
retrial for errors other than an erroneous sentence, such as
in [State v. Froembling, 237 Or 616, 391 P2d 390 (1964) and
Froembling v. Gladden, 244 Or 314, 417 P2d 1020 (1966)],
and the defendant has again been convicted, no harsher
sentence can be given than that initially imposed."

Id.

After stating that rule, the court acknowledged that
there might be some circumstances in which a harsher sen-
tence on remand might be rational and justified-for exam-
ple, when the first sentence was too lenient or when evidence
relevant to sentencing that was not available to the judge in
the first trial is available to the judge in the second trial. The
court concluded, however, that requiring reviewing courts to
distinguish between those legitimate harsher sentences and
sentences that were merely vindictive would cause difficul-
ties in judicial administration. It further concluded that the
possible advantages associated with permitting trial courts
to impose harsher sentences when there were nonvindictive
reasons to do so were outweighed by the judicial efficiency
that would result from following the simple prophylactic rule
that it was announcing. Turner, 247 Or at 314-15.

1 In particular, the court rejected each of the reasons courts in other jurisdic-
tions had offered in defense of harsher sentences after remand-that, once
reversed, an initial conviction and sentence are a "nullity," leaving the trial court
on remand complete freedom to pass sentence as if the initial sentence had never
existed; that the traditional discretion granted to trial judges in sentencing mat-
ters demanded that an otherwise lawful second sentence be upheld; and that, by
appealing, a criminal defendant essentially consents to any lawful sentence that
the trial court might impose on remand. 247 Or at 312-13.

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The court concluded by discussing the legal source of
its new rule:

"There also remains the issue of whether the rule pro-
posed should be grounded upon the due process or double
jeopardy provisions of the state or federal constitutions or
whether it should be grounded upon the statutes or the
common law.

"We do not find it necessary to decide the constitutional
issues as we conclude that, when the state grants a criminal
appeal as a matter of right to one convicted of a crime, as it
has, our procedural policy should be not to limit that right
by requiring the defendant to risk a more severe sentence in
order to exercise that right of appeal. ORS 138.020."

Id. at 315. Although the court in Turner thus proclaimed the
rule to be a prudential one, the reference to the state
"grant[ing] a criminal appeal as a matter of right" and the
citation to ORS 138.020 indicate that the rule in some sense
derived from the court's particular understanding of the leg-
islative intent behind that statute.2

Since Turner was decided in 1967, the rule it
announced has been assiduously followed-and sometimes
extended3-by the Court of Appeals, and it has been cited by
this court as established law on at least three occasions. See
State ex rel Dillavou v. Foster, 273 Or 319, 324 n 8, 541 P2d
811 (1975) (to deny defendant who appeals credit for time
spent in jail pending appeal effectively penalizes the defen-
dant for appealing and, thus, violates rule of Turner); State v.
Holmes, 287 Or 613, 617-19, 601 P2d 1213 (1979) (Turner
rule precluding imposition of more lengthy sentence after
successful appeal and retrial does not apply in the context of
a probation revocation proceeding); State v. Martin, 288 Or
643, 645-47, 607 P2d 171 (1980) (consistent with principle
announced in Turner, defendant whose conviction is set aside

2 The referenced statute, ORS 138.020, has not been changed in any significant
respect since Turner. It provides: "Either the state or the defendant may as a mat-
ter of right appeal from a judgment in a criminal action in the cases prescribed in
ORS 138.010 to 138.310, and not otherwise."

3 See, e.g., Stockman, 43 Or App at 235-43, applying Turner's prohibition on
harsher sentences after remand and retrial to case in which the remand was for
resentencing only.

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on his motion for a new trial cannot, on remand, be prose-
cuted for additional charges arising from the same criminal
episode). Of those three cases, only Dillavou truly embodies a
Turner-like approach. Still, Turner's status as a precedent of
long standing is undeniable.

That brings us to the more ambitious of the state's
two arguments4-that we should abandon the Turner rule
altogether in favor of a sentencing rule that is more specifi-
cally focused on the one legitimate concern that such resen-
tencing raises-the possibility that trial courts may employ
their sentencing authority to punish defendants for having
the temerity to appeal earlier convictions and sentences. The
state acknowledges that defendants and courts have relied
on the Turner rule for a long time, but it argues that the
Turner rule is neither constitutionally nor legislatively com-
pelled and that, for a variety of reasons, this court can and
should set it aside.

In so arguing, the state does not directly acknowl-
edge this court's general policy of adhering to precedent or
the kind of showing that we generally have required before
we will consider overturning a decision of such long standing.
But, acknowledged or not, the reality of the state's burden is
clear: Although this court arguably is more kindly disposed to
requests to reconsider precedent when, as here, the prece-
dent does not rest directly on the court's interpretation of a
particular statute or constitutional provision, that does not
mean that we will lightly set aside a decision of this sort. In
fact, we have stated that there are three grounds on which we
will reconsider an established nonstatutory rule:

"(1) that an earlier case was inadequately considered or
wrong when it was decided; (2) that surrounding statutory
law or regulations have altered some essential legal ele-
ment assumed in the earlier case; or (3) that the earlier rule
was grounded in and tailored to specific factual conditions,
and that some essential factual assumptions of the rule
have changed. Without some such premise, the court has no
grounds to reverse a well-established rule beside judicial

4 Because we ultimately agree with the state that the Turner rule must be
overruled, there is no need to consider its alternative argument-that, assuming
the rule is good law, it is inapplicable to the present case.

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fashion or personal policy preference, which are not suffi-
cient grounds for such a change."

G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54, 59, 757
P2d 1347 (1988) (citations omitted).5

The state has not expressly directed its analysis to
any of those three "premises." Instead, the state's primary
objections to the Turner rule are that it is "too restrictive,"
"too unwieldy," and that it is not required by this state's con-
stitutional or statutory law. The state also argues that the
rule is inconsistent with this court's expressed reluctance to
interfere with a trial court's sentencing discretion and with
its expressed view that judicial review of criminal sentences
must be limited because the setting of criminal penalties is a
purely legislative function. See, e.g., State v. Smith, 128 Or
515, 524, 273 P 323 (1929) (it is the province of the legislature
to establish penalties for crimes); State v. Montgomery, 237
Or 593, 595, 392 P2d 642 (1964) (court should not disturb dis-
cretion of the trial court in fixing term of imprisonment).
Finally, the state argues that, since Turner was decided, the
legislature has amended the statutes pertaining to criminal
appeals in ways that implicitly conflict with the Turner rule.
Unlike the state's other arguments, its last argument is rel-
evant to one of the accepted grounds for reconsidering estab-
lished precedent-that "surrounding statutory law or regu-
lations have altered some essential legal element assumed in
the earlier case." Kaiser Foundation Hospitals, Inc., 306 Or
at 59.

We note, in that regard, that, although the court in
Turner purported to erect a prudential rule, its justification
for that rule largely derived from an unspoken "gloss" on
ORS 138.020-that the right of appeal that that statute

5 Although we focus on a framework that was designed for reconsideration
of common-law holdings, we acknowledge that Turner is not, strictly speaking, a
common-law rule: As we have observed, the Turner court purported to be resting
its decision on purely prudential grounds but, at the same time, also appeared to
derive support for its rule in the terms of ORS 138.020, i.e., the statutory right of
appeal. In the end, we would say that the Turner decision is neither a case of stat-
utory construction nor a common-law rule, but simply turns on an unexamined
assumption about the legislative intent behind ORS 138.020. As such, it is not clear
that resort to Kaiser Foundation Hospitals, Inc., is necessary-but, for the sake of
completeness, we proceed as if it were.

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guarantees also includes a right to be shielded from outcomes
that might "chill" a defendant's desire to exercise the right,
including the risk of a longer sentence. It would seem, in fact,
that that gloss on ORS 138.020 was, in Kaiser Foundation
Hospitals, Inc., terms, an "essential legal element" assumed
in Turner. If so, then the question for this court, with respect
to the state's bid for reconsideration of Turner, is whether the
1993 amendment to ORS 138.222(5)(a) (on which the state
relies), or any other alterations in the surrounding law, has
undermined that assumption about the right of appeal that
the court in Turner thought that ORS 138.020 conveyed. If
that assumption has been substantially undermined by more
recent enactments, then the Turner rule itself is an appropri-
ate candidate for reconsideration.

The 1993 amendment to ORS 138.222(5)(a), which
the state has invoked, is germane to that inquiry. Enacted
some 25 years after Turner was decided, the relevant portion
of ORS 138.222(5)(a) provides:

"If[, in a criminal appeal,] 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 resentenc-
ing. The sentencing court may impose a new sentence for any
conviction in the remanded case."

(Emphasis added.) As noted, the Court of Appeals rejected
the state's suggestion that, by enacting that provision,
the legislature implicitly overruled Turner. We agree with
the Court of Appeals' conclusion as far as it goes: There is
nothing in the text, context, or legislative history of ORS
138.222(5)(a) that suggests that the statute was specifically
directed at the holding in Turner.

On the other hand, it appears that enactment of the
quoted amendment did alter the legal landscape for criminal
appeals in a way that undermines the assumptions in Turner
about the dimensions of the right of appeal guaranteed by
ORS 138.020. The 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 identi-
fied error. Although the amendment does not explicitly state

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that that authority extends to increasing a defendant's over-
all sentence, the scope of the statutory wording allows sen-
tencing courts to replace terms in a prior sentencing decision
respecting certain counts that were favorable to the defen-
dant with less favorable ones respecting those counts, with
one reasonable consequence of such action by the sentencing
court being a collection of lawful sentences whose total
exceeds defendant's earlier sentence. The amendment thus
strikes a different balance than did Turner with respect to
the discretion of trial courts to impose the lawful sentences
that they find to be appropriate.

The history of the amendment confirms that general
sense of the legislature's intentions. As defendant notes, the
amendment was adopted in response to a Court of Appeals
case, State v. Smith, 116 Or App 558, 842 P2d 805 (1992),
adh'd to on recons, 120 Or App 438, 852 P2d 934 (1993),
which held that, upon remand for a sentencing error with
respect to one charge, a trial court could not resentence on
certain other offenses whose sentences were unchallenged,
thereby restructuring the collective sentences in the case so
that the defendant was subject to the same total sentence as
previously had been imposed. Proponents of the amendment
offered it as a mechanism for "overruling" Smith, which they
viewed as "unjustly favor[ing] convicted felons." Exhibits,
House Appropriations Committee, SB 1043 (1993) (letter
from Fred Avera, Polk County District Attorney, and Dale
Penn, Marion County District Attorney, proposing amend-
ment to SB 1043). Although there is nothing in the history
that establishes a legislative intent to affirmatively author-
ize the imposition of sentences after a remand that are longer
overall, the fact that the legislature appears to have been
motivated by a disagreement with the Smith analysis does
not comport with Turner's notion that the right of appeal
guaranteed by ORS 138.020 must be provided free of any risk
of unfavorable alterations in sentences.

Other post-Turner statutes also are at odds with the
special weight that Turner assigned to the right of criminal
defendants to appeal free of the risk of a more severe sen-
tence on remand. For example, ORS 138.222(5)(b), adopted
in 2005 (Or Laws 2005, ch 563, § 1), extends the general
approach of ORS 138.222(5)(a), allowing trial courts to

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resentence a defendant on any judgments of convictions that
are affirmed on appeal, if any other judgment of conviction in
the same case is reversed on appeal.6 Again, the amendment
indicates that the legislature did not share the view of a crim-
inal defendant's right to a risk- and barrier-free appeal that
the court espoused in Turner. The legislature's philosophical
distance from the Turner approach is still further illustrated
by the 1989 legislature's grant of authority to the state to
appeal from sentences in felony cases on grounds that the law
required a different sentence. See ORS 138.222(4), (7) (collec-
tively providing that state may appeal defendant's sentences
on such grounds).

One final illustration helps make our point. For a
number of years, the court relied on what it called a "rule of
lenity." That rule, which also was prudential, was used by the
court in doubtful cases as a basis for giving criminal statutes
a limited reading-i.e., for limiting the sweep of legislative
enactments. See State v. Linthwaite, 295 Or 162, 179, 665
P2d 863 (1983) (describing and applying doctrine as basis for
holding that defendant's attack on four victims with a knife
permitted only one punishment); State v. Welch, 264 Or 388,
393-94, 505 P2d 910 (1973) (applying rule in holding that
person uttering two forged instruments committed only one
crime). The "rule" was abrogated by the legislature when it
adopted ORS 161.025(2), which directs courts to construe
penal statutes "according to the fair import of their terms."
See Bailey v. Lampert, 342 Or 321, 327, 153 P3d 95 (2007) (so
holding). This history further illustrates the legislature's sys-
tematic rejection of the policy and value judgments underly-
ing Turner.

We have suggested that the Turner decision rested
on an unexamined elaboration on the right of appeal guar-
anteed by ORS 138.020-i.e., that the right of appeal neces-
sarily includes the right to have the length of any resentence
limited to the length of the sentence originally imposed. We

6 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 resen-
tencing on the affirmed count or counts."

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have assumed, without actually deciding, that that reading
of ORS 138.020 had some basis in the law when Turner was
decided. But, based on changes in the law pertaining to crim-
inal sentencing and criminal appeals since Turner was
decided, as well as the legislature's rejection of the "rule of
lenity," it now is clear that the Turner court's expansive read-
ing of the right to appeal in ORS 138.020 no longer is viable,
if it ever was. Put differently: The legal landscape surround-
ing the right of criminal defendants to appeal has changed in
a way that undermines the essential premise for the holding
in Turner. We therefore are free to reconsider that holding in
the light of current law .?

On reconsideration, we conclude that the Turner
rationale has been overtaken by the passage of time and by
legislation. As noted, Turner itself did not rest on any consti-
tutional basis and no persuasive argument has been
advanced that the Oregon Constitution requires that crimi-
nal defendants be shielded from the possibility that, on
remand after a successful appeal, a sentencing court will
impose a lengthier sentence than that which it originally
imposed. In that regard, we note that the prohibition on dou-
ble jeopardy of Article I, section 12, which has been put for-
ward as a basis for such a rule, pertains to successive prose-
cutions and not to resentencing, while the alternative
proffered basis-due process-is a federal, not an Oregon,
constitutional guarantee. Furthermore, the suggestion in
Turner that such a blanket rule is somehow justified by ORS
138.020, to ensure a full realization of the right of appeal that
that statute was enacted to guarantee, is wrong in the con-
text of the present legal landscape (and was both not fully
considered and wrong in 1965): The statute was concerned
with who could appeal and what could be appealed. In our
view, it did not-even by implication-deal with what might
be a permissible outcome if a case were reversed and
remanded. Finally, we cannot justify such a blanket rule, as
the court did in Turner, as a purely prudential safeguard.

7 Our decision to reconsider the Turner rule on this basis is not meant to sug-
gest that the rule is not also susceptible to reconsideration under another of the
Kaiser Foundation Hospitals, Inc., criteria, viz., that Turner was "inadequately
considered or wrong when it was decided." 306 Or at 59.

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Whatever the possibility of vindictive sentencing, the legis-
lature remains competent to deal with it explicitly and, if it
does not do so, both the state and federal constitutions pro-
vide the appropriate legal backstop. This court's policy-
driven intervention in that statutory/constitutional arrange-
ment, while doubtless well-meaning, inappropriately
assumed on the part of the court policy-making responsibility
that belongs elsewhere. Turner is overruled.

While we reject Turner's absolutist approach to the
longer-sentence-on-remand issue, that does not mean that
we are turning a blind eye to the problem that such sentences
can pose. When, on remand of a criminal defendant's case
after a successful appeal, a trial court imposes a longer sen-
tence, it is natural to be concerned that the enhanced penalty
may be intended to punish the defendant for his or her suc-
cess on appeal. And, to the extent that that sort of vindictive
sentencing occurs, it undoubtedly is unlawful: The statutory
right of appeal provided at ORS 138.020 may carry with it
risks, as we today hold, but no conceivable construction of the
statute's wording supports the idea that the legislature
intended to grant to trial judges the authority to use their
sentencing power to impose more lengthy sentences on
remand for the purpose of punishing defendants for bringing
appeals.

On the other hand, we can posit a number of legiti-
mate reasons for a trial court to impose a longer sentence on
remand or after retrial-including the fact that the trial
court in the second sentencing proceeding has information
about the defendant and his or her actions that was not avail-
able at the first or the fact that the trial court simply erred in
applying sentencing statutes or guidelines. There is no basis
for saying that the legislature intends that such exercises of a
trial court's sentencing discretion must be barred, in order to
ensure against the imposition of vindictive (and unlawful)
sentences. There also is no basis for saying that either the
Oregon or federal constitutions bars all such choices.

But the problem remains: How are Oregon courts to
deal with claims of vindictive sentencing? As we have noted,
it is not clear that any Oregon constitutional provision
answers the question directly. And, as we also have noted, we

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think that it is inappropriate to create or announce a rule in
this area of the law without real constitutional or statutory
support. (To do otherwise would be simply to substitute our
policy-making assessments for those of the court in Turner. If
it was inappropriate for that court to do what it did, it would
be just as inappropriate for this court to act in like manner.)

As it happens, there is a source of law. The Supreme
Court of the United States, acting under the Due Process
Clause of the Fourteenth Amendment, has addressed the
problem and laid out a method of dealing with it.

In North Carolina v. Pearce, 395 US 711, 726, 89
S Ct 2072, 23 L Ed 2d 656 (1969), the Court was faced with
two cases in which a defendant's sentence on retrial exceeded
the sentence that each defendant had received at that defen-
dant's initial sentencing. The defendants urged that longer
sentences on retrial offended the Fifth Amendment's double
jeopardy provision, as well as the Equal Protection Clause of
the Fourteenth Amendment. The Court held that neither
constitutional provision prohibited such sentences. 395 US at
723.

The Court then turned to an analysis of the
issue under the Due Process Clause of the Fourteenth
Amendment. For reasons that soon will be apparent, we set
out the Court's analysis at some length:

"It is hardly to be doubted that it would be a flagrant
violation of the Fourteenth Amendment for a state trial
court to follow an announced practice of imposing a heavier
sentence upon every reconvicted defendant for the explicit
purpose of punishing the defendant for his having suc-
ceeded in getting his original conviction set aside. * * * And
the very threat inherent in the existence of such a punitive
policy would, with respect to those still in prison, serve to
'chill the exercise of basic constitutional rights.'* * * [More-
over, and] even if the first conviction has been set aside for
nonconstitutional error, the imposition of a penalty upon
the defendant for having successfully pursued a statutory
right of appeal or collateral remedy would be no less a vio-
lation of due process of law."

Id. at 723-25 (citations and footnotes omitted).

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The Court then went on to deliver the following
pronouncement:

"Due process of law, then, requires that vindictiveness
against a defendant for having successfully attacked his
first conviction must play no part in the sentence he
receives after a new trial. And since the fear of such vindic-
tiveness may unconstitutionally deter a defendant's exer-
cise of the right to appeal or collaterally attack his first con-
viction, due process also requires that a defendant be freed
of apprehension of such a retaliatory motivation on the part
of the sentencing judge.

"In order to assure the absence of such a motivation, we
have concluded that whenever a judge imposes a more
severe sentence upon a defendant after a new trial, the rea-
sons for his doing so must affirmatively appear. Those rea-
sons must be based upon objective information concerning
identifiable conduct on the part of the defendant occurring
after the time of the original sentencing procedure.18) 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 725-26 (footnotes and citations omitted).

The foregoing federal constitutional rule is one that
Oregon courts must follow with respect to resentencing
offenders to longer sentences. This court could, of course,
announce additional requirements under our own constitu-
tion or pursuant to statute. As noted, however, we find no
obvious basis in either source of law for doing so. We there-
fore decline to posit anything other than the Pearce standard,
as modified by the Court in the manner noted, as the appli-
cable standard in cases of resentencing in Oregon: 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

8 This specific requirement that any conduct on the part of the defendant that
a court relies on to justify a longer sentence must have occurred "after the time of
the original sentencing proceeding" is no longer applicable. See, e.g., Texas v.
Mccullough, 475 US 134, 141-42, 106 S Ct 976, 89 L Ed 2d 104 (1986) (allowing
judge to consider newly learned information about defendant that involved acts
committed by defendant before first sentencing proceeding; stating that to do
otherwise could lead to "bizarre conclusion").

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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.

Turning to this case, the Court of Appeals, based on
Turner, reversed the 600-month sentence that the trial court
imposed on remand. In light of our decision to overrule
Turner (an outcome the Court of Appeals could not have
anticipated), the Court of Appeals' rationale was incorrect:
We now recognize that a trial court lawfully may impose a
harsher sentence on a defendant after retrial or remand, as
long as the court's grounds for doing so are not directed at
punishing the defendant for appealing his or her original con-
victions or sentences. However, in light of the trial court's
failure to explain on the record in this case its reasons for
imposing the longer sentence on remand, we cannot say that
the Court of Appeals was incorrect in reversing the trial
court's judgment. That court needed more information than
is available in the present record in order to assure itself that
the sentencing court's choice of sentence on remand was not a
vindictive one. The trial court in this case should have an
opportunity to clarify the record in that respect; we therefore
remand the case to the trial court for that purpose. On
remand, the trial court may choose to impose a sentence that
does not exceed the original total sentence of 420 months,
which would not require a statement of the court's reasons
for imposing the sentence. If the court chooses, instead, to
impose a longer or otherwise more severe total sentence, it
must place on the record one or more nonvindictive reasons
for doing so.9

9 The requirement of a statement of nonvindictive reasons is essentially the
outcome for which the state advocates, although we impose it for reasons of judicial
administration, rather than-as the state would have it-as a substitute pruden-
tial rule that somehow is "more fair." Defendant, for his part, never advocated
either for rejection of the Turner rule or for a remand for resentencing; he preferred
Turner as it was. However, we cannot be satisfied that the root concern of defen-
dant's second trip through the appellate process-vindictive resentencing-is not
present on this record. The remand to the sentencing court addresses that problem.

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The decision of the Court of Appeals is affirmed in
part on different grounds. The judgment of the circuit court is
vacated, and the case is remanded to the circuit court for
resentencing in accordance with this opinion.

WALTERS, J., dissenting.

In 1967, a defendant had a right, under Oregon stat-
ute, to appeal a wrongful conviction. In 1967, a trial court had
discretion, under Oregon statutes, to decide the sentence that
a defendant should receive if convicted for a second time after
a successful appeal. In 1967, in State v. Turner, 247 Or 301,
429 P2d 565 (1967), this court decided a question at the con-
fluence of those statutes: whether a defendant who success-
fully exercised the right to appeal a wrongful conviction and
had it overturned could be subjected to a harsher sentence
than that originally imposed. The court decided, in a unani-
mous opinion, that he could not.

The majority overrules Turner as a "well-meaning"
but "inappropriate[ ]" assumption of policy-making responsi-
bility "that belongs elsewhere." 349 Or at 23. I agree with the
majority that, in 1967, the legislature had authority to decide
the question presented in Turner. However, the legislature
had not exercised that authority and Oregon statutes neither
explicitly permitted nor explicitly precluded a sentencing
judge from imposing a harsher sentence in the circumstance
presented. Therefore, I cannot agree that the court in Turner
inappropriately assumed a legislative role when it decided
the question before it.

In the absence of express statutory guidance, the
court in Turner considered the competing public interests
reflected in the statutes that the legislature had enacted-
the public interest in "permit[ting] a court to assess its sen-
tence upon the most complete and current information" and
the public interest in "correction of an erroneously conducted
trial." 247 Or at 313-14. The court decided that because the
legislature had granted a right of criminal appeal and
because the "public has no interest in foreclosing the correc-
tion of an erroneously conducted trial," the appropriate pro-
cedural policy should be "not to limit that right by requiring
the defendant to risk a more severe sentence in order to exer-
cise that right of appeal." Id. at 313, 315. A different rule, the

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court decided, "would 'chill' a defendant's desire to correct an
erroneously conducted initial trial," id. at 313, and require a
reviewing court to "make a subjective determination whether
the new information justified and was in fact the motive for
the more severe sentence," raising "difficulties in judicial
administration," id. at 314.

The court in Turner was not required to reach that
particular result and could have ruled, as the majority in this
case apparently would have, that the fact that the legislature
had not expressly precluded a harsher sentence on remand
permitted just that. But the court did not do so. During the
43 years that have intervened between Turner and Partain,
the Oregon legislature had authority to overrule or alter the
court's decision in Turner. But the legislature did not do so.
Given the authority of those entities, it is, in my view, the
majority in Partain that assumes policy-making responsibil-
ity that belongs elsewhere.

First, the majority extends its authority beyond that
necessary to decide the case before it. In this case, the trial
court imposed a harsher sentence on defendant after defen-
dant successfully appealed an error in sentencing, not an
error in the underlying conviction. The rule that the court
announced in Turner explicitly did not address that circum-
stance. The court stated:

"After 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 (emphasis added). Instead of overruling
Turner, the majority could have refused to extend its rule to
successful appeals of sentencing errors.

Second, the majority reaches a different result than
did the court in Turner without an argument from the state
that the grounds for overturning longstanding precedent as
stated in G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or
54, 59, 757 P2d 1347 (1988), are satisfied, 349 Or at 18, and
without itself reaching that conclusion.1 The majority relies,

1 The majority does state, mirroring the words of Kaiser Foundation Hospitals,
Inc., that the court's decision in Turner "was both not fully considered and wrong in

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for reconsideration, on statutes enacted by the Oregon legis-
lature since Turner but does not conclude, and cannot con-
clude, in the words of Kaiser Foundation Hospitals, Inc., that
those statutes "altered some essential legal element assumed
in the earlier case." Kaiser Foundation Hospitals, Inc., 306
Or at 59.

The statutes on which the majority relies neither
limit a defendant's right to appeal a wrongful conviction nor
indicate a legislative intent to expose a defendant to a risk
that he or she will receive a harsher sentence if successful in
appealing a wrongful conviction. ORS 138.222(5)(a) over-
rules a Court of Appeals case, State v. Smith, 116 Or App 558,
842 P2d 805 (1992), adh'd to on recons, 120 Or App 438, 852
P2d 934 (1993), and ensures that a trial court may, on
remand from a successful appeal of a sentencing error, recon-
struct a collective sentence to impose the same total sentence
previously imposed. ORS 138.222(5)(a) does not address
remand from a wrongful conviction, much less grant trial
courts authority to impose harsher sentences after a success-
ful appeal from a wrongful conviction. ORS 138.222(5)(b)
does address remand from a successful appeal of a conviction,
but only permits trial courts to resentence the defendant on
affirmed convictions. It does not address sentencing on
remand from reversed convictions, nor does it grant trial
courts authority to impose harsher sentences after a success-
ful appeal or indicate a philosophical interest in permitting
such sentences.

ORS 138.222(4), (7) permits the state to appeal from
sentences in felony cases on the ground that the law required
a different sentence. Granting the state a right to insist that
a lawful sentence is imposed does not indicate a legislative
intent to permit a trial court to impose a harsher sentence on
a defendant who exercises the same right. To me, it indicates
a legislative interest to ensure that any sentence that is
imposed be legally sound. Turner is consistent with that
intent. If a defendant knows that appeal of an invalid sen-
tence will expose him or her to the risk of a harsher sentence,
the defendant will be less likely to seek correction of that

1965." 349 Or at 22. However, the majority does so only after already deciding that
reconsideration is appropriate for the statutory reasons that it discusses. Id.

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sentence-a correction that the legislature deems to be in the
public interest.2

The majority does not contend that the statutes on
which it relies alter the right to appeal a wrongful conviction
or any other essential element of Turner but instead asserts
that those statutes are "at odds" with the "right of criminal
defendants to appeal free of the risk of a more severe sen-
tence on remand." 349 Or at 20. I do not perceive the conflict
that the majority observes, but, more importantly, the major-
ity itself recognizes that Oregon law continues to grant crim-
inal defendants the right to appeal free from the very risk of
a more severe sentence that Turner addresses-the risk of
vindictive sentencing:

"[T]o the extent that that sort of vindictive sentencing
occurs, it undoubtedly is unlawful: The statutory right of
appeal provided at ORS 138.020 may carry with it risks, as
we today hold, but no conceivable construction of the stat-
ute's wording supports the idea that the legislature
intended to grant to trial judges the authority to use their
sentencing power to impose more lengthy sentences on
remand for the purpose of punishing defendants for bring-
ing appeals."

349 Or at 23.

After construing Oregon law to preclude vindictive
sentencing, the majority notes that the Due Process Clause of
the federal constitution includes the same prohibition. The
majority then decides that the rule devised by the Supreme
Court in North Carolina v. Pearce, 395 US 711, 89 S Ct 2072,
23 L Ed 2d 656 (1969), is sufficient to address that concern.
349 Or at 25. In so doing, the majority calls attention to the
essential role of the judiciary and makes my point.

The Due Process Clause does not state explicitly the
procedure that a reviewing court should use to protect
against vindictive sentencing. Nevertheless, the Supreme
Court determined, in Pearce, that, whenever a judge imposes
a more severe sentence after a new trial, the reasons for
doing so must affirmatively appear. Id. at 725-26. The

2 See State v. Thompson, 231 Or App 193, 217 P3d 697 (2009) (more severe sen-
tence permitted on resentencing when statutorily mandated).

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Supreme Court did not exceed its authority in imposing that
requirement; it fulfilled its constitutional role. The court in
Turner did the same. The difference is not in the authority
exercised, but in the rule crafted.

In the years since Pearce, the Supreme Court has
made clear that Pearce does not state a bright-line test or
even impose a presumption of vindictiveness for harsher
sentences:

"While the Pearce opinion appeared on its face to announce
a rule of sweeping dimension, our subsequent cases have
made clear that its presumption of vindictiveness 'do[es]
not apply in every case where a convicted defendant
receives a higher sentence on retrial.'"

Alabama v. Smith, 490 US 794, 799, 109 S Ct 2201, 104 L Ed
2d 865 (1989) (quoting Texas v. Mccullough, 475 US 134,
138, 106 S Ct 976, 89 L Ed 2d 104 (1986)). As a result, by
adopting the Pearce rule as the only test of the validity of a
sentence on remand after a successful appeal, the majority
requires reviewing courts to do just what the court in Turner
sought to avoid; viz., deciding whether the case before them is
one "in which there is a 'reasonable likelihood' that the
increase in sentence is the product of actual vindictiveness on
the part of the sentencing authority." Nulph v. Cook, 333 F3d
1052, 1057 (9th Cir 2003) (quoting Alabama v. Smith, 490 US
at 799).

Oh, the endless questions and appeals and consump-
tion of judicial time we have purchased.

Is there a presumption of vindictiveness? See Texas v.
Mccullough, 475 US at 138-40 (no presumption of vindic-
tiveness when defendant resentenced by trial judge after
originally sentenced by a jury); United States v. Goodwin,
457 US 368, 384, 102 S Ct 2485, 73 L Ed 2d 74 (1982) (pre-
sumption of vindictiveness not warranted in the pretrial
plea negotiation context, even though "[t]here is an oppor-
tunity for vindictiveness"); Chaffin v. Stynchcombe, 412 US
17, 26-27, 93 S Ct 1977, 36 L Ed 2d 714 (1973) (no presump-
tion of vindictiveness when defendant is resentenced by a
jury); Colten v. Kentucky, 407 US 104, 116-17, 92 S Ct 1953,
32 L Ed 2d 584 (1972) (no presumption of vindictiveness
when defendant convicted of misdemeanor in an inferior

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court was later convicted of a felony after trial de novo in a
court of general jurisdiction).

If there is a presumption of vindictiveness, has it been
overcome? See Nulph, 333 F3d at 1059-60 (insufficient evi-
dence in the record that petitioner elected to apply an unfa-
vorable rule at parole board hearing; therefore state did not
rebut presumption of vindictiveness); Bono v. Benov, 197
F3d 409, 421 (9th Cir 1999) (victim letter contained in "con-
temporaneous notes and memoranda," but not in written
notice of decision, insufficient to rebut the presumption of
vindictiveness); Hurlburt v. Cunningham, 996 F2d 1273,
1276 (1st Cir 1993) (presumption rebutted by judge's refer-
ence to presentence report, the defendant's record, and
what he observed during trial); United States v. Gallegos-
Curiel, 681 F2d 1164, 1168 (9th Cir 1982) (burden shifts to
prosecution to show that increase in the severity of the
charges did not stem from vindictive motive or was justified
by independent reasons or intervening circumstances).

If the Oregon legislature had decided that the
bright-line rule adopted by the court in Turner to protect the
right of appeal and guard against vindictive sentencing was
too restrictive, that times have changed, and that reviewing
courts of this state should determine, instead, whether sen-
tencing judges, in truth, were vindictive, I would, of course,
apply that rule. But absent clear legislative direction to do so,
I would not subject Oregon judges to that inquiry. I would not
disturb the basic premise upon which Turner rested, and
rested for 43 years-that a defendant should not be required
" 'to barter with his life for the opportunity of exercising' " the
right to a criminal appeal. Turner, 247 Or at 316 (quoting
State v. Wolf, 46 NJ 301, 309, 216 A2d 586, 590 (1966)). I
respectfully dissent.