               IN THE SUPREME COURT OF IOWA
                              No. 09–1125

                         Filed November 4, 2011


STATE OF IOWA,

      Appellee,

vs.

STEVIE DEWAYNE HARRINGTON,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Black Hawk County,

Bruce B. Zager, Judge.



      Defendant asserts his sentence on remand raises a presumption of

judicial vindictiveness. DECISION OF COURT OF APPEALS AFFIRMED

AND JUDGMENT AND SENTENCE OF DISTRICT COURT AFFIRMED.


      Mark C. Smith, State Appellate Defender, and Martha J. Lucey,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,

Assistant Attorney General, Thomas J. Ferguson, County Attorney, and

Brad P. Walz, Assistant County Attorney for appellee.
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HECHT, Justice.

       When the defendant’s case was remanded for resentencing on four

drug-related convictions, the district court imposed two sentencing

enhancements it had not imposed when the defendant was sentenced

originally.   The defendant contends the imposition of the sentencing

enhancements was the result of judicial vindictiveness in violation of the

rule established in North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct.

2072, 23 L. Ed. 2d 656 (1969). Because the defendant received a shorter

overall sentence on resentencing for the four convictions, we conclude

the presumption of judicial vindictiveness does not apply and affirm his

sentences.

       I. Background Facts and Proceedings.

       After police found drugs and weapons during searches of

residences with which Stevie Harrington was associated in January and

March of 2007, Harrington and his brother were charged with five drug-

related offenses. 1    Harrington pled guilty to counts V and VI—charges

stemming from the March search—possession of cocaine base with intent

to deliver within 1000 feet of a public park and failure to affix a drug tax

stamp. After a trial on counts I, II, and III, Harrington was convicted of
all three of the other offenses—possession of cocaine base with intent to

deliver while in immediate possession of a firearm and within 1000 feet

of a public school, failure to affix a drug tax stamp, and unauthorized

possession of an offensive weapon.

       The district court sentenced Harrington to a total of forty years.

His sentence included thirty years for count I, which included a

mandatory sentence enhancement for being in the immediate possession

       1Harrington’s brother was a codefendant on several of the charges and was the
sole defendant on count IV.
                                           3

of a firearm, and ten years for count V to be served consecutively. Five-

year sentences for each of counts II, III, and VI were to be served

concurrently.

       Harrington appealed, and the court of appeals concluded there was

insufficient evidence to support the sentencing enhancement for

immediate possession of a firearm in count I and the district court had

relied on improper factors for imposing sentence.                    The case was

remanded for resentencing.

       On resentencing, the district court sentenced Harrington to a total

of thirty years.      The district court imposed consecutive fifteen-year

sentences for counts I and V and concurrent five-year sentences for each

of counts II, III, and VI. The sentences for counts I and V each included

a discretionary five-year sentence enhancement because the offenses

were committed within 1000 feet of a school or park—enhancements that

the district court did not apply in Harrington’s original sentence.

       Harrington      appealed     contending      that,   although     his    overall

sentence decreased, because the district court applied the sentencing

enhancements on counts I and V, which had not been applied when he

was originally sentenced, he is entitled to a presumption of judicial

vindictiveness under North Carolina v. Pearce. 2             The court of appeals

affirmed, and we granted his application for further review.

       II. Scope of Review.

       Because Harrington alleges his sentence on remand was the result

of judicial vindictiveness that violated his due process rights, 3 our review

is de novo. State v. Mitchell, 670 N.W.2d 416, 418 (Iowa 2003).

      2The companion case decided with Pearce was overruled on other grounds by

Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989).
       3Harrington does not specify whether he is alleging a violation of his federal or

state due process rights, or both. “When there are parallel constitutional provisions in
                                           4

       III. Discussion.

       Because the jury had found Harrington was in the immediate

possession of a firearm while possessing cocaine base in count I, the

district court tripled the ten-year sentence in the original sentence. See

Iowa Code § 124.401(1)(f) (2007).              The State also asked the court to

impose the discretionary five-year sentence enhancements on counts I

and V for committing the offense within 1000 feet of a park or school.

See id. § 124.401A.        When explaining the rationale for the sentences

originally imposed, the district court noted that “one [of the offenses

occurred] with the public school being nearby, the other one with a

public park being nearby” but did not apply the enhancements for being

within 1000 feet of a school or park.

       Although Harrington acknowledges his overall sentence decreased,

because the district court imposed the five-year public school/park

enhancements when the case was remanded, Harrington argues he is

entitled to a presumption of judicial vindictiveness as described in

Pearce. He acknowledges that the court of appeals has concluded when

a defendant’s aggregate sentence after resentencing is less than his

original sentence, the Pearce presumption of vindictiveness does not

apply. State v. Bolsinger, 738 N.W.2d 643, 646 (Iowa Ct. App. 2007). He

encourages us to overrule Bolsinger.

_________________________
the federal and state constitutions and a party does not indicate the specific
constitutional basis, we regard both federal and state constitutional claims as
preserved.” King v. State, 797 N.W.2d 565, 571 (Iowa 2011). While Harrington has not
advanced a standard for interpreting the due process clause under the Iowa
Constitution differently from its federal constitutional counterpart, we will use the due
process principles as outlined by the United States Supreme Court for addressing a due
process challenge under the Iowa Constitution, but we do not necessarily apply those
principles in the same way as the United States Supreme Court. See State v. Bruegger,
773 N.W.2d 862, 883 (Iowa 2009). We have considered Harrington’s due process
challenge under both the United States Constitution and the Iowa Constitution, and we
reach the same result.
                                        5

         The State contends that because Harrington’s combined new

sentence is less than his former total sentence, the Pearce presumption

is inapplicable and no due process violation occurred. The State relies

on Bolsinger, as well as the decisions of a majority of the federal circuits

and state courts that have addressed the issue, to support its position

that the Pearce presumption of vindictiveness does not arise when a

defendant’s aggregate sentence after resentencing is less than his

original aggregate sentence. This is a matter of first impression for this

court.

         The United States Supreme Court established in Pearce that due

process concerns are implicated when a defendant receives a harsher

sentence on remand after successfully appealing his conviction because

he appealed his conviction. To ensure defendants are not “chilled” from

exercising their rights to appeal, the Court created a prophylactic rule to

safeguard against vindictiveness in sentencing.

                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 vindictiveness
         may unconstitutionally deter a defendant’s exercise of the
         right to appeal or collaterally attack his first conviction, due
         process also requires that a defendant be freed of
         apprehension of such a retaliatory motivation on the part of
         the sentencing judge.
                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
         reasons for his doing so must affirmatively appear. Those
         reasons must be based upon objective information occurring
         after the time of the original sentencing proceeding.

Pearce, 395 U.S. at 725–26, 89 S. Ct. at 2080–81, 23 L. Ed. 2d at 669–70

(footnote omitted).     Thus Pearce established a presumption of judicial

vindictiveness if a more severe sentence is imposed after a new trial,

unless reasons for the harsher sentence appear in the record.               The
                                    6

holding in Pearce has been narrowed in subsequent decisions, clarifying

that due process does not prohibit an increase in sentences upon retrial,

but rather prohibits “increased sentences when that increase was

motivated by vindictiveness on the part of the sentencing judge.” Texas

v. McCullough, 475 U.S. 134, 137, 106 S. Ct. 976, 978, 89 L. Ed. 2d 104,

110 (1986). Thus, the presumption does not apply in situations where

there is not a reasonable likelihood of judicial vindictiveness, such as

when a different judge or jury imposes the increased sentence or when

the second sentence is imposed after a jury trial following an overturned

guilty plea. Id. at 140, 106 S. Ct. at 979, 89 L. Ed. 2d at 111–12; see

also Alabama v. Smith, 490 U.S. 794, 801, 109 S. Ct. 2201, 2205, 104

L. Ed. 2d 865, 873–74 (1989). However, the Supreme Court has not yet

addressed when the presumption will be applied in a case like this one—

where a defendant successfully appeals one or more of several

convictions and receives a lower overall sentence on remand, but a

greater sentence on an individual count.

      Most courts that have considered the issue have applied what is

called the “aggregate” approach.    Under this approach, a defendant’s

aggregate sentence before resentencing is compared with his or her

aggregate sentence after resentencing. If the new aggregate sentence is

less than the original aggregate sentence, the Pearce presumption of

vindictiveness does not apply. United States v. Campbell, 106 F.3d 64,

68 (5th Cir. 1997); United States v. Sullivan, 967 F.2d 370, 374 (10th Cir.

1992); United States v. Mancari, 914 F.2d 1014, 1020 (7th Cir. 1990);

Kelly v. Neubert, 898 F.2d 15, 18 (3d Cir. 1990); United States v.

Pimienta-Redondo, 874 F.2d 9, 15 (1st Cir. 1989); United States v. Gray,

852 F.2d 136, 138 (4th Cir. 1988); United States v. Bay, 820 F.2d 1511,

1514 (9th Cir. 1987); People v. Savala, 195 Cal. Rptr. 193, 197 (Ct. App.
                                          7

1983), overruled on other grounds by People v. Foley, 216 Cal. Rptr. 865,

867 (Ct. App. 1985); People v. Woellhaf, 199 P.3d 27, 31–32 (Colo. App.

2007); State v. Miranda, 794 A.2d 506, 528 (Conn. 2002); White v. State,

576 A.2d 1322, 1329 (Del. 1990); Adams v. State, 696 S.E.2d 676, 680

(Ga. 2010); Owens v. State, 916 N.E.2d 913, 916–17 (Ind. Ct. App. 2009);

State v. Neville, 572 So. 2d 1161, 1165–66 (La. Ct. App. 1990); State v.

Keefe, 573 A.2d 20, 22 (Me. 1990); State v. King, 750 N.W.2d 674, 680–

81 (Neb. 2008); Commonwealth v. McHale, 924 A.2d 664, 673 (Pa. Super.

Ct. 2007), overruled in part on other grounds by Commonwealth v.

Robinson, 931 A.2d 15, 21–22 (Pa. Super. Ct. 2007).                     Although a

presumption of judicial vindictiveness may not arise, under this

approach if the aggregate sentence on resentencing is not greater than

the original sentence, the defendant can still offer proof that the court

acted with actual vindictiveness. 4

       The courts adopting the aggregate approach explain that it
       best reflects the realities faced by district court judges who
       sentence a defendant on related counts of an indictment.
       Sentencing is a fact-sensitive exercise that requires district
       court judges to consider a wide array of factors when putting
       together a “sentencing package.” When an appellate court


       4Two  federal circuits have adopted a “remainder aggregate” approach which
compares the total sentence on the nonreversed counts after appeal with the original
sentence imposed on those counts. United States v. Monaco, 702 F.2d 860, 885 (11th
Cir. 1983); United States v. Markus, 603 F.2d 409, 413 (2d Cir. 1979).
        A minority of state courts have rejected the aggregate approach, instead
applying some version of a pure “count-by-count” approach which compares the
sentence on each individual count and applies the presumption if any one sentence is
higher after appeal. See People v. Sanders, 827 N.E.2d 17, 22–23 (Ill. App. Ct. 2005)
(using count-by-count approach when court imposed lower individual sentences but
ordered them to run consecutively, resulting in a higher overall sentence, but
concluding the new sentence was permissible); Wilson v. State, 170 P.3d 975, 981 (Nev.
2007) (concluding Nevada Constitution’s Double Jeopardy Clause prohibited a court
from increasing the defendant’s sentence on counts which were affirmed on appeal);
State v. Abram, 941 A.2d 576, 582 (N.H. 2008) (using count-by-count approach when
previously concurrent sentences were made consecutive on resentencing and applying
presumption of vindictiveness).
                                           8
       subsequently reverses a conviction (or convictions) that was
       part of the original sentence, the district court’s job on
       remand is to reconsider the entirety of the (now-changed)
       circumstances and fashion a sentence that fits the crime and
       criminal. The aggregate approach’s inherent flexibility best
       comports with this important goal.
Campbell, 106 F.3d at 68 (citation omitted).

       Harrington argues that while the aggregate approach may be

appropriate in the federal context, Iowa’s sentencing law does not involve

“sentencing packages.”        He argues Iowa district courts are required to

impose sentence on each individual count and that each count and

sentence is independent from the others.             He particularly urges us to

adopt the approach utilized by the Court of Appeals of New York which
       decline[d] to adopt either the ‘aggregate’ or the ‘count-by-
       count’ approach as an intractable rule. . . . Thus, where a
       defendant receives a greater sentence on an individual
       count, but an equal or lesser over-all sentence, courts must
       examine the record to determine whether there is a
       reasonable likelihood that the enhanced sentence on the
       individual count was the result of vindictiveness.
People v. Young, 723 N.E.2d 58, 63 (N.Y. 1999).

       While we agree Iowa’s sentencing scheme is distinguishable from

the intricacies of the federal sentencing guidelines system, we think it

only realistic, and not necessarily undesirable to a defendant, that a
district court may, as it imposes individual sentences on individual

counts, consider each sentence part of an integrated whole. 5                    Thus,

although Iowa law does not require a district court to construct a

“sentencing package” in the same way federal law does, we think the

discretion and flexibility afforded district courts under our sentencing

statutes allows for district courts to do just that.



       5Consider, for example, how the district court in this case might have felt

compelled to apply the discretionary park/school enhancements in the original
sentence if it had known that it would not have the discretion to revise the sentence if
remanded.
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      Further, we note that the Pearce presumption of vindictiveness was

created     as    a   prophylactic   rule       to   ensure   defendants   were   not

unconstitutionally deterred from exercising their right to appeal.

Campbell, 106 F.3d at 67. Applying the aggregate approach should not

discourage defendants from appealing their convictions: Harrington has

gained ten years by appealing his convictions.

      We are persuaded of the soundness of the aggregate approach and

adopt it.        Accordingly, we conclude because Harrington’s aggregate

sentence after resentencing is less than his original aggregate sentence,

no presumption of vindictiveness arises. Harrington does not argue that

the record demonstrates actual judicial vindictiveness.              We affirm the

decision of the court of appeals and the judgment and sentence of the

district court.

      DECISION          OF    COURT         OF       APPEALS     AFFIRMED         AND

JUDGMENT AND SENTENCE OF DISTRICT COURT AFFIRMED.

      Waterman, J., concurs in result only, Mansfield and Zager, JJ.,

take no part.
