                                                                         This opinion was

X
 ywnzE IN CLERKS OFFICE
                                                                         .filed for record
                                                                       atMis*on

SIfflSME COURT,STKIE OF mSHI?4GT0N

I^te.—MAY 0 ? im                                                         SusanL Carlson
                                                                       Supreme Court Clerk

        CHIEFjusr^




              IN THE SUPREME COURT OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,
                                                         No. 95734-7
                           Respondent,

         V.                                              En Banc


RONALD RICHARD BROWN,

                           Petitioner.                   Filed     MAY Q 2 ?nifi
                                                  J


         MADSEN,J.—Ronald Brown appeals an unpublished Court of Appeals decision

affirming his exceptional sentence for two counts of first degree robbery and one count of

first degree burglary. At his first sentencing hearing, the trial court decided not to impose

an exceptional sentence on his original convictions. On appeal, four of his seven original

convictions were vacated. Upon resentencing, the trial court exercised its discretion and

imposed an exceptional sentence above the sentencing range for his remaining

convictions. Brown argues that the decision to impose an exceptional sentence on

remand was collaterally estopped, that the exceptional sentence is the result ofjudicial

vindictiveness, and that the State's recommendation for an exceptional sentence is the
No. 95734-7



result of prosecutorial vindictiveness. We affirm the Court of Appeals decision and

affirm Brown's sentence.


                                         FACTS


       In 2012, Brown was charged with two counts of first degree kidnapping, two

counts of first degree robbery, one count of first degree burglary, and two counts of

second degree assault, all with a firearm. Brown proceeded to jury trial. At the close of

trial, the jury convicted Brown of all seven counts.

       At the sentencing hearing, the State recommended the high end ofthe sentencing

range for Brown's convictions. The State noted that an exceptional sentence upward

would be warranted based on Brown's high offender score but did not recommend an

exceptional sentence at the original sentencing. The trial court also declined to impose an

exceptional sentence, citing the victims' statements that their lives would have been in

danger if not for Brown being present. The trial court ultimately sentenced Brown to the

high end of the sentencing range, 638 months in prison.

       On appeal, the Court of Appeals reversed Brown's two kidnapping convictions on

instructional error and his two assault convictions on double jeopardy grounds. The court

then remanded for resentencing.

       On remand, the State elected to dismiss the two kidnapping charges without

prejudice because ofthe time and effort involved in relocating the victims and

codefendants, and the resources spent by the prosecution in retrying Brown. At the

resentencing hearing, the State initially recommended a sentence of 351 months—

reflecting the high end of the standard sentencing range. However, the State later
 No. 95734-7



 amended its recommendation to reimpose the original sentence as an exceptional

 sentence. The court declined to reimpose the original sentence but did impose an

 exceptional sentence of 399 months. At the resentencing hearing, the judge noted that he

 did not impose the exceptional sentence at the original sentencing because he felt the 638

 months was "legally appropriate and within the law." Verbatim Report of Proceedings,

Resentencing & Mot. Hr'g(VRP Mot.)(June 21, 2016) at 34. The judge also noted that

imposing the high end of the sentencing range with the remaining charges would give

Brown a "free crime[],"justifying the imposition of an exceptional sentence. Id.

However, the judge stopped short of imposing the original sentencing range.' Id.

                                           ANALYSIS


        Collateral Estoppel

       Brown first argues the trial court is collaterally estopped from imposing an

exceptional sentence at the resentencing hearing when it chose not to impose one at the

original sentencing hearing.

       For collateral estoppel to apply,(1)the issue in the prior adjudication must be

identical to the issue currently presented for review,(2)the prior adjudication must be a

final judgment on the merits,(3)the party against whom the doctrine is asserted must

have been a party to or in privity with a party to the prior adjudication, and (4) barring the



'The trial judge took into account that one of Brown's codefendants, Johnathan Frohs, accepted a
plea deal and received his sentence during the interim. Although the trial judge never specified
the length of Frohs' sentence, he did articulate that when he looked at "[Brown's] original
sentence ... compared to what Mr. Frohs got... I think it's too far out of the lines of being
reasonable." VRP Mot. at 34. Presumably, Frohs' guilty plea sentencing resulted in a shorter
sentence than Brown's original sentence.
No. 95734-7



relitigation of the issue will not work an injustice on the opposing party. State v.

Harrison, 148 Wn.2d 550, 561, 61 P.3d 1104 (2003). Courts should not apply collateral

estoppel hypertechnically but, rather, with realism and rationality. State v. Till, 148

Wn.2d 350, 361, 60 P.3d 1192(2003).

       Brown argues the issue in the prior adjudication is identical to the issue currently

presented for review—whether to impose an exceptional sentence based on Brown's

offender score. Suppl. Br. of Pet'r 6-7. Specifically, Brown argues because the judge

chose not to impose an exceptional sentence at the initial sentencing despite being

justified due to his offender score, collateral estoppel applies. Id. at 7.

       His argument is similar to the one made in Tili. In that ease, the defendant was

initially sentenced to 417 months. 148 Wn.2d at 357. The trial court did not impose an

exceptional sentence because it treated his offenses as separate and distinct conduct. Id.

However, the court indicated that if his ruling was reversed on appeal and the offenses

should have been treated as the same criminal conduct, the court would impose the same

sentence as an exceptional sentence. Id. The original sentence was reversed, to be

treated as same criminal conduct, and the trial court imposed the same 417 month

sentence as an exceptional sentence. Id.

       The defendant in Tili argued that the trial court was collaterally estopped from

imposing an exceptional sentence on resentencing because it chose not to do so at the

original sentencing hearing, /c/. at 361. This court was not persuaded. We noted that

separate and distinct conduct for multiple offenses resulted in a fundamentally different

sentence from same criminal conduct—the former resulting in consecutive sentences.
No. 95734-7



while the latter results in concurrent sentences. Id. at 362-63. Thus, the issue at

resentencing was fundamentally different.

       Despite this, Brown attempts to distinguish Tili because, here, the only relevant

change was the dismissal of four charges resulting in a lowered offender score. Suppl.

Br. ofPet'r at 7. This is a distinction without effect. Under RCW 9.94A.535(2), a trial

court may impose an aggravated exceptional sentence without a finding of fact by a jury

under certain circumstances, one ofthem being that "[t]he defendant has committed

multiple current offenses and the defendant's high offender score results in some of the

current offenses going unpunished." RCW 9.94A.535(2)(c). To justify an exceptional

sentence upward, a trial court must first calculate or otherwise determine the defendant's

offender score, and based on that factor, the trial court has discretion to impose an

exceptional sentence if it deems the defendant's sentence will result in "free crimes."

       Based on Brown's offender score in addition to the firearm enhancements.

Brown's original sentence totaled 638 months. The trial court had a question before it at

that time: Based on the defendant's high offender score, should it impose an exceptional

sentence based on the current range? The court decided the sentence at the time was fair

and opted not to impose an exceptional sentence. On appeal, based on the reversal of two

convictions on the basis of double jeopardy and the State's decision not to retry two other

convictions. Brown was left with three convictions. The question upon resentencing thus

flindamentally changed: Was the newly computed sentencing range sufficient based on

Brown's offender score? The trial court had a new offender score and a new sentencing

range to consider when it decided to impose the exceptional sentence.
No. 95734-7



         Finality under Collateral Estoppel

         Next, Brown argues that the issue of imposing the exceptional sentence was

"final" for purposes of collateral estoppel. In support of this position, he cites to State v.

Kilgore, 167 Wn.2d 28, 216 P.3d 393 (2009), for the proposition that an unchallenged

exceptional sentence on appeal is final and has preclusive effect on remand should any

other portion ofthe judgment and sentence be reversed. Suppl. Br. of Pet'r at 9.

         In Kilgore, the trial court imposed an exceptional sentence of 560 months on seven

counts. 167 Wn.2d at 32. On appeal, two counts were reversed and the other five

affirmed. Id. The trial court did not elect to resentence him and instead signed an order

striking the two reversed counts and changing his offender score accordingly. Id. at 34.

We held that finality occurs when '"the availability of appeal'[has] been exhausted." Id.

at 43 (emphasis omitted)(quoting In re Pers. Restraint ofSt. Pierre, 118 Wn.2d 321,

327, 823 P.2d 492(1992)). "[A] case has no remaining appealable issues where an

appellate court issues a mandate reversing one or more counts and affirming the

remaining count, and where the trial court exercises no discretion on remand as to the

remaining final count." Id. at 37. We noted that "[ajlthough the trial court had discretion

... to revisit Kilgore's exceptional sentence on the remaining five convictions, ... it was

not reconsidering the exceptional sentence imposed on each of the remaining counts." Id.

at 41.


         Brown's reliance on Kilgore is misplaced. It does not stand for the proposition

that all exceptional sentences are final when they are not appealed. Rather, when a trial

court does not exercise its discretion on remanded issues, those issues become final for
No. 95734-7



purposes of reviewability. Here, because the trial court did exercise its discretion on

remand to determine whether an exceptional sentence was appropriate, the issue became

reviewable and is not "final."


       The Effect of Collicott


       Brown also argues that collateral estoppel applies based on State v. Collicott, 118

Wn.2d 649, 827 P.2d 263 (1992). Brown asserts the lead opinion's discussion on

collateral estoppel is applicable as it is factually analogous to the instant case.^ In

Collicott, the trial court, in its original sentencing, could have imposed an exceptional

sentence but did not. Id. at 652. The defendant appealed, and the case was remanded to

the trial court for resentencing. At the resentencing, the trial court learned that the

defendant had a stayed charge pending until resolution of the case. Id. at 653. The trial

court imposed an exceptional sentence at rehearing based on deliberate cruelty. Id. at

653-54. This court, in its lead opinion, reversed, holding that the defendant's offender

score was not properly calculated and the trial court was collaterally estopped from

imposing the exceptional sentence. It is the court's discussion that collateral estoppel

applies to exceptional sentences that Brown relies on.

       But Brown's reliance on this is misguided. First, the collateral estoppel discussion

did not command a majority of the court.^ As subsequent case law has held, the collateral


^ Brown also seeks clarification as to the weight that should be placed on the lead opinion in
Collicott. The lead opinion in Collicott stated that the court should be collaterally estopped in
imposing an exceptional sentence on resentencing.
^ Only four justices ofthis court. Justices Smith, Utter, and Dolliver, and Chief Justice Dore,
subscribed to this holding. Five justices. Justices Durham, Andersen, Brachtenbach, and Guy,
and Justice Pro Tem Callow, specifically disavowed the collateral estoppel holding as "go[ing]
No. 95734-7
    !



estoppel analysis is dicta and is not binding on this court. See Harrison, 148 Wn.2d 550;
Till, 148 Wn.2d 350. Second, the facts in Collicott are quite distinct from the instant
case.



        In Collicott, the trial court imposed an exceptional sentence upon resentencing

based on deliberate cruelty. 118 Wn.2d at 654. The trial court could have imposed an

exceptional sentence based on deliberate cruelty at the initial sentencing but chose not to.

Id. at 653. The lead opinion stated that collateral estoppel applied where the court could

have imposed an exceptional sentence based on the same factor that it relied on at

resentencing. Id. at 661.

        Brown argues that the same situation is presented here; the trial court could have

imposed an exceptional sentence based on the "free crime" rule but chose not to,

triggering collateral estoppel. But Brown overlooks another part of the lead opinion in

Collicott in which the court suggested that a trial court may impose an exceptional

standard based on the "clearly too lenient" standard(now the "free crime" rule) upon

resentencing. Id. at 659-60.

        Judicial Vindictiveness


        Brown next argues that the exceptional sentence imposed by the trial court at the

resentencing hearing is presumptively vindictive. Generally, a trial judge may impose a

new sentence that is greater or less than the sentence originally imposed based on events

subsequent to the first trial that may throw new light on the defendant's life, health.


beyond what is necessary to resolve this case." Collicott, 118 Wn.2d at 670(Durham, J.,
concurring).


                                              8
No. 95734-7



habits, conduct, and mental and moral propensities. North Carolina v. Pearce, 395 U.S.

711, 723, 89 S. Ct. 2072, 23 L. Ed. 2d 656(1969). But the "imposition of a penalty upon

the defendant for having successfully pursued a statutory right of appeal or collateral

remedy [is] a violation of due process of law." Id. at 724. The Court in Fearce held that

"whenever a judge imposes a more severe sentence upon a defendant after a new trial, the

reasons for ... doing so must affirmatively appear." Id. at 726. Such reasons must be

based on "objective information concerning identifiable conduct on the part of the

defendant occurring after the time of the original sentencing proceeding." Id.

       For years, Fearce seemed to stand for a sweeping rule that applied a presumption

ofjudicial vindictiveness whenever a new sentence was harsher than the original sentence

imposed. However,the scope of the rule set out in Fearce has been substantially

narrowed over the years. In Alabama v. Smith, the defendant originally was sentenced

based on a guilty plea. 490 U.S. 794, 795, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989).

The defendant successfully had his guilty plea vacated, and the case proceeded to trial.

Id. After the trial the defendant was convicted and resentenced, this time to a life

sentence. Id. at 796-97. The defendant argued there was a presumption of vindictiveness

under Fearce. The Supreme Court disagreed, stating that "subsequent cases have made

clear that [Fearce's] presumption of vindictiveness 'do[es] not apply in every case where

a convicted defendant receives a higher sentence on retrial.'" Id. at 799 (second

alteration in original)(quoting Texas v. McCullough, 475 U.S. 134, 138, 106 S. Ct. 976,

89 L. Ed. 2d 104 (1986)). Rather, the presumption applies only in "[sjuch circumstances

... in which there is a 'reasonable likelihood' that the increase in sentence is the product
No. 95734-7



of actual vindictiveness on the part of the sentencing authority." Id. (citation omitted)

(quoting United States v. Goodwin,457 U.S. 368, 373, 102 S. Ct. 2485, 73 L. Ed. 2d 74

(1982)). When there is no reasonable likelihood, the defendant must prove actual

vindictiveness. Id. at 799-800. The Court later went on to hold that the presumption

does not apply where a greater penalty is imposed after trial than was imposed after the

guilty plea because "the judge may gather a fuller appreciation of the nature and extent of

the crimes charged [at trial]." Id. at 801.

        The Supreme Court has since declined to apply the Pearce presumption in a

number of cases. See, e.g., McCullough, 475 U.S. 134 (holding the presumption does not

apply where retrial that resulted in the harsher sentence was initiated because the trial

judge herself concluded a new trial was warranted based on prosecutorial misconduct);

Chaffin V. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714(1973){Pearce

presumption does not apply when new jury at retrial imposes a harsher penalty than the

original jury); Colten v. Kentucky, 407 U.S. 104, 92 S. Ct. 1953, 32 L. Ed. 2d 584(1972)

(presumption does not apply where de novo trial in general criminal jurisdiction courts

imposes a harsher sentence than inferior court did at original sentence).

       Under Pearce, it appears the presumption of vindictiveness does not apply since

the subsequent aggregate sentence was substantially lower than the original sentence.'^


^ The dissent argues we should apply the Pearce presumption because our Sentencing Reform
Act of 1981(SKA)requires courts to consider only the "real facts" of the crimes at sentencing,
RCW 9.94A.530(2), distinct from the federal sentencing guidelines, which allow courts to
consider acquitted conduct. Dissent at 8 (citing 18 U.S.C. § 3661). In essence, the dissent asserts
that it was improper for the sentencing court to consider the facts and circumstances of the entire
criminal transaction because some of those facts could support elements of the charges that were

                                                10
No. 95734-7



However, Brown points to federal circuit cases that consider the sentence imposed on

each count, not the aggregate sentence. There are essentially two schools ofthought in

determining whether the presumption applies—^whether we compare the overall length of

the new sentence to the original sentence or whether we compare the remaining sentence

once the dropped convictions are factored out to the new sentence.^ The overwhelming

majority of federal circuits subscribe to the former analysis. See, e.g., United States v.

Pimienta-Redondo, 874 F.2d 9(1st Cir. 1989)(presumption does not apply when one

count is dropped and resentencing judge increases the sentence on remaining count so the

overall sentence remains the same);® United States v. Nerius, 824 F.3d 29(3d Cir. 2016)

{Pearce does not apply where the revised sentence is lower than that originally imposed);

United States v. Gray, 852 F.2d 136 (4th Cir. 1988)(no possibility or appearance of

vindictiveness when the second sentence is shorter overall than the first sentence);^


reversed on appeal. But the "real facts" doctrine does not require a trial court to wholly disregard
facts simply because they may be used to support elements of crimes that were not charged.
Rather,"[t]he SRA structures the sentencing decision to consider only the actual crime of which
the defendant has been convicted, his or her criminal history, and the circumstances surrounding
the crime." State v. Houf, 120 Wn.2d 327, 333, 841 P.2d 42(1992)(emphasis added).
        In any event, the "real facts" doctrine does not apply here. The trial court, after reviewing
the new offender score, found that the standard sentencing range would clearly be too lenient and
would result in "some of the current offenses going unpunished." RCW 9.94A.535(2)(c). An
offender score above 9 warrants an exceptional sentence. Since Brown's adjusted offender score
after the reversed convictions was 11, the trial court determined an exceptional sentence was
warranted. The trial court's finding did not require an examination of the facts underlying the
reversed convictions.
® Brown characterizes the two different approaches as the "total aggregate" approach and the
"modified aggregate," or "aggregate remainder," approach, respectively, in his briefing. Suppl.
Br. of Pet'r at 18.
® This reasoning was later affirmed in United States v. Dominguez, 951 F.2d 412(1st Cir. 1991).
^ Faced with essentially the same argument presented by Brown, the Fourth Circuit affirmed its
adherence to the "total aggregate" approach in United States v. de Jesus Ventura, 864 F.3d 301
(4th Cir. 2017).


                                                 11
No. 95734-7



United States v. Cataldo, 832 F.2d 869 (5th Cir. 1987)(no presumption when the judge

sentences a defendant to the same sentence even though there are fewer remaining

convictions); United States v. Rivera, 327 F.3d 612, 615 (7th Cir. 2003)("we compare

the total original punishment to the total punishment after resentencing in determining

whether the new sentence is more severe"); United States v. Horob, 735 F.3d 866, 870

(9th Cir. 2013)("presumption of vindictiveness does not apply . . . because .. . the []

court considered his overall sentence at the time of his original sentence and again on

remand, and because his overall sentence was not increased"); United States v. Sullivan,

967 F.2d 370(10th Cir. 1992).

       Brown advocates for the "aggregate remainder" approach taken by the Second and

Eleventh Circuits in United States v. Markus, 603 F.2d 409(2d Cir. 1979), and United

States V. Monaco, 702 F.2d 860 (11th Cir. 1983). In Markus, the defendant was sentenced

to a total of 15 years on seven counts. 603 F.2d at 411. On appeal, the judge vacated two

counts '"reluctantly."' Id. The government filed an additional charge, on which the court

sentenced the defendant to 5 years. Id. The defendant argued vindictiveness under the

due process clause of the Fourteenth Amendment to the United States Constitution. The

Court of Appeals held the appropriate analysis is to disregard the sentence originally

imposed by the trial judge on the count dropped and then compare the total remaining

sentence imposed to the current sentence. Id. at 413. Since there was no evidence on the

record to justify the increase, the court found there to be vindictiveness. Id. at 414.

       Similarly, in Monaco, the Court of Appeals examined a sentence that remained the

same after retrial, even though there were fewer counts. Monaco, 702 F.2d at 883. The

                                              12
No. 95734-7



court in Monaco also subscribed to the approach used in Markus. Id. at 885. Since the

trial court did not state any reasons for the increase, the court applied the Pearce

presumption. Id. However, more recently, the Eleventh Circuit discussed Monaco in

United States v. Fowler, 749 F.3d 1010 (11th Cir. 2014). In Fowler, the court effectively

repudiated the "aggregate remainder" approach taken in Monaco, stating,''Monaco'^ pre-

guidelines approach for gauging the severity of a new sentence relative to an old one—the

aggregate remainder approach—is not binding in the post-guidelines era, which presents

materially different circumstances than those involved in that case." Id. at 1018. That

court went on further to say that "[w]hile we are obligated to follow the holdings of an

earlier decision,'the holdings of a prior decision can reach only as far as the facts and

circumstances presented to the court in the case which produced that decision.'" Id. at

1020 {qaoXmg Anders v. Hometown Mortg. Servs., Inc., 346 F.3d 1024, 1031 (11th Cir.

2003)). "Because Monaco arose and was decided before the sentencing guidelines

existed, it could not, and did not purport to, decide what approach should be used to

determine when the Pearce presumption applies to a new sentence imposed under the

guidelines regime." Id.

       Our court has never considered which approach to adopt in determining a Pearce

presumption of vindictiveness. However, Division One of the Court of Appeals faced that

issue in State v. Larson, 56 Wn. App. 323, 783 P.2d 1093 (1989). In that case, the

defendant's original sentence was for 363 months as a consecutive sentence. Id. at 325.

After appeal, and upon resentencing, the trial court imposed a concurrent sentence of 360

months. Id. at 326. The defendant raised a presumption of vindictiveness argument, and

                                             13
No. 95734-7



the Court of Appeals rejected it, stating the "revised aggregate sentence [was] less severe

than his original aggregate sentence." Id. at 328.

       Similarly, Division Two, in State v. Ameline, addressed the Pearce presumption.

118 Wn. App. 128, 75 P.3d 589 (2003). In that case, the defendant was retried three

times. The first conviction resulted in a sentence of 164 months. Id. at 130. After appeal,

the second sentence resulted in a conviction, and the court reimposed the same 164 month

sentence. Id. at 131. The defendant appealed a third time, this time on instructional error.

The case was remanded for a third trial. After his third conviction, the trial court chose to

impose an exceptional sentence of 240 months. Id. To justify it, the trial court made

written findings of fact that could have been made at the other two trials. Id. The Court

of Appeals found that because the third sentence was harsher than the previous two

overall, the Pearce presumption applied. Id. at 133. The Court of Appeals also

determined the presumption was not rebutted based on the justification the trial court

made on record. Id. Division Three has not decided a case based on judicial

vindictiveness.


       Given that the overwhelming majority of the federal circuits subscribe to the "total

aggregate" approach and that Divisions One and Two also adopted the same, we hold the

Pearce presumption does not arise when the total sentence upon resenteneing is not

greater than the original sentence imposed.

      Prosecutorial Vindictiveness


      Finally, Brown argues that the State's request for an exceptional sentence on

remand is presumptively vindictive. The due process clause is not offended by all

                                              14
No. 95734-7



possibilities of increased punishment upon retrial after appeal but only those that pose a

realistic likelihood of vindictiveness. Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098,40

L. Ed. 2d 628(1974). The Pearce presumption of vindictiveness was extended to the

prosecutorial context in Blackledge. In that case, the defendant was charged with a

misdemeanor assault in an altercation with another inmate while serving another term. Id.

at 22. After his conviction, he appealed, which under North Carolina law automatically

warranted trial de novo. Id. Prior to the trial, the State obtained a felony assault

indictment that covered the same conduct as the misdemeanor assault. The defendant


pleaded guilty to the felony assault charge. Id. at 23. The defendant argued the Pearce

presumption should apply in his case. Id. at 25. The Court agreed and held that it was not

constitutionally permissible for the State to respond to the defendant's appeal by bringing

a more serious charge against him. Id. at 28-29.

       The Pearce presumption does not apply to all cases where a prosecutor brings

more serious charges. In Bordenkircher v. Hayes, the Supreme Court determined that the

presumption does not apply in the pretrial context during plea negotiations when the

prosecution threatens and executes additional charges when plea negotiations do not result

in a guilty plea. 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604(1978). The Court noted

the violation "lay not in the possibility that a defendant might be deterred from the

exercise of a legal right, but rather in the danger that the State might be retaliating against

the accused for lawfully attacking his conviction." Id. at 363 (citations omitted). Thus,

the presumption was inapplicable where there is a '"give-and-take negotiation common in

plea bargaining between the prosecution and defense, which arguably possess relatively

                                              15
No. 95734-7



equal bargaining power.'" Id. at 362(quoting Parker v. North Carolina, 397 U.S. 790,

809,90 S. Ct. 1458, 25 L. Ed. 2d 785(1970)(Brennan, J., dissenting)).

       Similarly, in Goodwin,the Supreme Court held that a presumption of

vindictiveness was not warranted when a prosecutor brings a more severe charge after a

defendant has demanded a jury trial. 457 U.S. 368. The Court noted,"[T]he mere fact

that a defendant refuses to plead guilty and forces the government to prove its case is

insufficient to warrant a presumption that subsequent changes in the charging decision are

unjustified." M at 382-83.

       This court has decided the issue of prosecutorial vindictiveness in the pretrial

context. See State v. Korum, 157 Wn.2d 614, 141 P.3d 13 (2006)(plurality opinion).

Similar to Goodwin and Bordenkircher,Korum involved guilty pleas. In that case, the

prosecution threatened 32 additional charges if he did not plead guilty. Id. at 620-21.

This court held that adding 15 counts did not constitute prosecutorial vindictiveness,

finding the case was similar to Bordenkircher and Goodwin, where the defendants chose

to walk away from plea negotiations. Id. at 635-36. Later, in State v. Gamble, 168 Wn.2d

161, 187, 225 P.3d 973 (2010), this court noted that the Blackledge presumption was

inapplicable where, as a result of case law, the conviction was necessarily vacated,

requiring the prosecution to reevaluate what charges to bring against the defendant.

       Unlike cases where the prosecution chooses to add charges after a defendant

exercises his right of appeal and succeeds, this case involves a sentencing

recommendation. Courts should be cautious when expanding the scope of prophylactic

rules. While it is possible that the prosecution decided to recommend the original

                                             16
No. 95734-7



sentence as an exceptional sentence out of spite, the presumption does not apply simply

because there is an opportunity for vindictiveness. There must be a realistic likelihood of

vindictiveness. Here, the State was faced with a decision—was the length of a standard

range sentence sufficient given the facts of the case?

       Unlike a charging decision, imposing a sentence does not fall under the core

responsibilities of a prosecutor. Ultimately, a trial court determines what sentence is

appropriate. The State merely recommends what it believes to be an appropriate sentence

based on the crimes. Given this important distinction, we decline to extend the

Blackledge presumption in this context.

                                      CONCLUSION


       We hold that collateral estoppel does not apply when a court imposes an

exceptional sentence at resentencing based on the "free crime" aggravator when it chose

not to impose an exceptional sentence at the first sentencing. Further, we hold that a

presumption of vindictiveness is not triggered when a judge imposes a shorter overall

sentence than the original or when a prosecutor recommends an exceptional sentence at

resentencing when it did not recommend such a sentence at the original sentencing. We

affirm the Court of Appeals.




                                             17
No. 95734-7




WE CONCUR:




              \AJV^   (jXAti   ■
              ggr^
State V. Brown (Ronald Richard), No. 95734-7
(Gordon McCloud, J., dissenting)




                                     No. 95734-7


      GORDON McCLOUD,J.(dissenting)—The majority accurately recites the

rules about the presumption of vindictiveness that arises when a postappeal

sentence for a crime exceeds the preappeal sentence for that crime. But it applies

those rules incorrectly. It errs by failing to recognize that at sentencing hearings in

Washington,judges can consider only the facts ofthe crime of conviction—not the

facts of other acquitted conduct, dismissed charges, or reversed convictions. This

is "offense specific" sentencing as mandated by the state legislature. Since the

legislature has mandated such offense specific sentencing, it necessarily follows

that the only offense conduct that can be considered in comparing the length of a

preappeal sentence for a crime to the length of the postappeal sentence for the

exact same crime is the conduct specific to that crime—not the conduct specific to

other dismissed or acquitted crimes.

      The majority makes a different comparison; it compares the preappeal

sentence for seven crimes to the postappeal sentence for just three of those crimes,
State V. Brown (Ronald Richard), No. 95734-7
(Gordon McCloud, J., dissenting)



even though convictions for four of the seven crimes were reversed. That flawed

comparison leads the majority to approve postappeal sentences on the three

remaining convictions that far exceed the sentences originally imposed on those

same convictions, despite the absence of any new postappeal evidence to justify

them.


        I therefore respectfully dissent.

                         Factual and Procedural History


        A jury found Ronald Richard Brown guilty oftwo counts of first degree

kidnapping, two counts of first degree robbery, two counts of second degree

assault, and one count of first degree burglary in 2013. Clerk's Papers(CP) at 89

(initial judgment and sentence). The superior court imposed a standard-range

sentence on each of those seven counts. Id. at 91, 93. It explicitly declined to

impose an exceptional sentence above the standard range on any count under

RCW 9.94A.535(2)(c)(permitting use of high offender score as aggravating factor

in certain circumstances). See id. at 116-18 (State's initial sentencing

memorandum); Verbatim Report ofProceedings (June 21, 2016)(VRP)at 33-34.

        Brown appealed. In 2015, the Court of Appeals reversed four of the seven

convictions. State v. Brown, No. 70148-7-1, slip op. at 12-17(Wash. Ct. App.

July 27, 2015)(unpublished), https://www.courts.wa.gov/opinions/pdf/701487.pdf.
State V. Brown (Ronald Richard), No. 95734-7
(Gordon McCloud, J., dissenting)



That court ruled that an error in the jury instructions for the kidnapping charges

violated Brown's article I, section 22 and Sixth Amendment rights to notice of the

charged crimes. Id. at 7-9; Wash. Const, art. I, § 22; U.S. Const, amend. VI. It

also held that convicting and sentencing Brown for both assault and robbery (of

each of the two victims) violated his article I, section 9 and Fifth Amendment

rights. Brown, slip op. at 12-17; WASH. CONST, art. I, § 9; U.S. Const, amend. V.

In other words, it reversed four of Brown's convictions due to constitutional error.

      On remand, the State declined to try Brown again on the kidnapping

charges, even though those charges carried the highest seriousness level under the

Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. VRP at 3-4; CP at

91 (initial judgment and sentence). See generally RCW 9.94A.515 (ascribing

seriousness levels to offenses). Instead, it moved to dismiss those charges without

prejudice, and the superior court granted that motion. VRP at 4-5; CP at 26

(motion), 25 (order).

      Thus, at Brown's resentencing in 2016, only three convictions remained.

The offender scores for each of the three convictions decreased from 19 at the first


sentencing hearing to 11 at resentencing.' Compare CP at 91 (initial judgment and


      ' Offender scores reflect prior criminal history and other current
convictions. A score is calculated for each offense, and the score for one offense
might differ from the score for another offense. See RCW 9.94A.525; WASH.
State V. Brown (Ronald Richard), No. 95734-7
(Gordon McCloud, J., dissenting)



sentence), with id. at 9(judgment and sentence on remand). And at the

resentencing hearing, the State presented no new facts. VRP at 19-27.

      Nevertheless, the State argued that the court should impose the same total

period of confinement that it had previously imposed because that period of

confinement "adequately represented the facts in this case." Id. at 21-22; see also

CP at 32-36 (State's amended sentencing memorandum on remand). But because

that total period of confinement was greater than the top of the standard ranges for

the three remaining convictions, the State sought exceptional sentences above the

range—^something it had not done at the first sentencing hearing.

      The State did not focus on Brown's individual offenses when it made this


argument about "the facts ofthis case." CP at 32-36. Rather, the State focused on

reaching a predetermined total period of confinement for all of the three remaining

convictions. Id. It offered the court multiple ways to impose a total period of

confinement equivalent to the one that Brown had originally received, id. at 34,

thus indicating that it believed "the facts ofthis case" included the facts ofthe

seven original crimes.



State Caseload Forecast Council,2017 Washington State Adult
Sentencing Guidelines Manual 63,
https;//www.cfc.wa.gov/PublicationSentencing/SentencingManual/Adult_Sentenci
ng_Manual_2017.pdf[https://perma.cc/78SQ-AK9G].
State V. Brown (Ronald Richard), No. 95734-7
(Gordon McCloud, J., dissenting)




      Specifically, when the State did discuss specific facts to be considered at

resentencing, it did not limit its discussion to the conduct underlying the remaining

robbery and burglary convictions. It also relied on conduct underlying the

reversed—and consequently unproven—kidnapping counts. For example, in

arguing for the same total period of confinement, the State asserted that Brown was

"the one who's responsible in this case for the fact that [the alleged kidnapping

victims] had to endure the hours of confinement and the hours of fear and anxiety

on the night in question and following." VRP at 25.

      Brown argued against exceptional sentences. He explained that "there have

been no new facts or identifiable conduct by the defendant, besides succeeding on

appeal, that this court or the State could use to justify an exceptional sentence."

CP at 29(Brown's sentencing memorandum on remand).

      The superior court declined to impose the same total period of confinement.

But it did grant the State's request for exceptional sentences above the standard

range. Id. at 21-22 (findings of fact and conclusions of law). The court concluded

that the sentencing range resulting from Brown's number of convictions together

with his criminal history did not adequately reflect his criminality, and, hence, it

found "substantial and compelling reasons" to depart from the standard range for

each conviction. Id.\ RCW 9.94A.535(2)(c). As a result. Brown's sentences for
State V. Brown (Ronald Richard), No. 95734-7
(Gordon McCloud, J., dissenting)



the two robbery convictions increased from 231 months to 279 months, and his

sentence for the burglary conviction increased from 176 months to 204 months.

Compare CP at 93 (initial judgment and sentence), with id. at 11 (judgment and

sentence after remand).

      Brown appealed the sentences. The Court of Appeals affirmed. State v.

Brown, No. 75458-1-1(Wash. Ct. App. Mar. 12, 2018)(unpublished),

http://www.courts.wa.gov/opinions/pdf/754581.pdf. This court granted review.

State V. Brown, 190 Wn.2d 1025 (2018).                      '

                                    Discussion


  Judicial Vindictiveness Presumptively Infected Brown's Resentencing—and the
                     State Has Not Rebutted That Presumption

      A court violates a defendant's right to due process under the Fourteenth

Amendment when it imposes a "penalty upon the defendant for having

successfully pursued a statutory right of appeal." North Carolina v. Pearce, 395

U.S. 711, 724, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled on other

grounds by Alabama v. Smith, 490 U.S. 794, 798-99, 109 S. Ct. 2201, 104 L. Ed.

2d 865 (1989); U.S. Const, amend. XIV. Because "[t]he existence of a retaliatory

motivation would, of course, be extremely difficult to prove in any individual

case," Pearce, 395 U.S. at 725 n.20, a presumption ofjudicial vindictiveness
State V. Brown (Ronald Richard), No. 95734-7
(Gordon McCloud, J., dissenting)



applies when "there is a 'reasonable likelihood' that [an] increase in [the] sentence

is the product of actual vindictiveness on the part of the sentencing authority."

Smith, 490 U.S. at 799 (quoting United States v. Goodwin,457 U.S. 368,473, 102

S. Ct. 2485,73 L. Ed. 2d 74(1982)). When the record allows, however, the State

may rebut that presumption. Texas v. McCullough,475 U.S. 134, 140, 106 S. Ct.

976, 89 L. Ed. 2d 104(1986).

      Here, there is a reasonable likelihood that Brown's increased sentences were

a response to—and therefore a penalty for—his success on appeal. Consequently,

the presumption ofjudicial vindictiveness applies. And the State has not rebutted

that presumption.

      A.     Brown Got Longer Sentences on His Convictions after His Successful
             Appeal

      The first step in this analysis is to determine whether the postappeal

sentences were really longer than the preappeal sentences. To do that, we look to

Washington sentencing law.

      Our state legislature requires offense-specific sentencing. See ch. 9.94A

RCW; Wash.State Caseload Forecast Council,2017 Washington State

Adult Sentencing Guidelines Manual 63,

https://www.cfc.wa.gov/PublicationSentencing/SentencingManual/Adult_Sentenci
State V. Brown (RonaldRichard), No. 95734-7
(Gordon McCloud, J., dissenting)



ng_Manual_2017.pdf[https://perma.cc/78SQ-AK9G]("For multiple current

offenses, separate sentence calculations are necessary for each offense because the

law requires that each receive a separate sentence."). In furtherance of that policy

decision, Washington's SRA requires trial courts to consider only "real facts" of

the crimes of conviction at sentencing. RCW 9.94A.530(2); State v. Houf, 120

Wn.2d 327, 332-34, 841 P.2d 42(1992). In this respect, Washington's SRA

differs from the federal sentencing guidelines, which permit consideration of other

factors, including acquitted conduct. 18 U.S.C. § 3661; United States v. Watts, 519

U.S. 148, 151-54, 117 S. Ct. 633, 136 L. Ed. 2d 554(1997)(per curiam).

      "Real facts" are those that the State has proved or that the defendant has

affirmatively admitted. RCW 9.94A.530(2); State v. Hunley, 175 Wn.2d 901, 287

P.3d 584(2012)(holding that a defendant's silence does not relieve the State of its

burden of proving sentence-enhancing facts). "The 'real facts' or 'established

facts' concept excludes consideration of either uncharged crimes or of crimes that

were charged but later dismissed." State v. McAlpin, 108 Wn.2d 458, 466, 740

P.2d 824(1987)(collecting cases). Conduct that has "not resulted in convictions

.. . may not be considered at all." Id. at 467. Thus, the SRA precludes a

sentencing court from considering reversed convictions when it imposes a sentence
State V. Brown (Ronald Richard), No. 95734-7
(Gordon McCloud, J., dissenting)



because reversed convictions are not convictions. See Pearce, 395 U.S. at 721

(observing that overturning a conviction results in "the slate [being] wiped clean").

      The four reversed convictions in this case fall outside the definition of"real


facts." Those convictions were not just "wiped clean"; they were reversed due to

unconstitutionality. Under United States Supreme Court precedent, a sentencing

court cannot consider an unconstitutionally obtained conviction for any purpose.^

In other words, under controlling law. Brown's sentences for his three remaining

convictions could be based on only those three convictions. It is indisputable that

the superior court imposed longer sentences on each of these three convictions

after Brown's successful appeal than it did before.

      B.     Because Brown's Three Sentences Were Longer after Appeal Than
             They Were Before, Pearce's Holding—That a Presumption of
             Judicial Vindictiveness Arises When the Same Sentencing Court
             Increases a Sentence after Appeal without Any New Factual Basis—
             Applies in This Case

      Pearce makes clear that a presumption ofjudicial vindictiveness applies

when, as here, postappeal sentences exceed preappeal sentences. Pearce also




      ^ United States v. Tucker, 404 U.S. 443, 448-49, 92 S. Ct. 589, 30 L. Ed. 2d
592(1972); Burgettv. Texas, 389 U.S. 109, 115, 88 S. Ct. 258, 19 L. Ed. 2d 319
(1967); State v. Ammons, 105 Wn.2d 175, 187-88, 713 P.2d 719, 718 P.2d 796
(1986).
State V. Brown (Ronald Richard), No. 95734-7
(Gordon McCloud, J., dissenting)



makes clear that such vindictiveness violates the defendant's right to due process

under the Fourteenth Amendment.


      Pearce was convicted of assault with intent to commit rape and sentenced to

12 to 15 years in prison. 395 U.S. at 713. His conviction was later reversed by a

state appellate court, and the State decided to retry him. Id. Pearce was convicted

again, and the court imposed an 8-year prison sentence. Id. But"when added to

the time Pearce had already spent in prison, the parties agree[d the new sentence]

amounted to a longer total sentence than that originally imposed." Id.

      The United States Supreme Court viewed the second sentence as a "more

severe punishment," despite its facial appearance of leniency. Id. at 716. Yet the

sentencing court's reasons, if any, for imposing the increased sentence were "not

so dramatically clear." Id. at 726. And "the State [had not] offered any reason or

justification for that sentence beyond the naked power to impose it." Id. The

Court therefore presumed that the sentencing court had imposed the "heavier

sentence" in response to the defendant's "having succeeded in getting his original

conviction set aside." Id. at 723-24.


      That presumptively vindictive response violated the defendant's right to due

process. "Due process oflaw . . . requires that vindictiveness against a defendant

for having successfully attacked his first conviction must play no part in the


                                         10
State V. Brown (Ronald Richard), No. 95734-7
(Gordon McCloud, J., dissenting)




sentence he receives after a new trial." Id. at 725. The Supreme Court therefore

affirmed the grant of the writ of habeas corpus, holding that Pearce could not be

imprisoned under the unconstitutional sentence. Id.

      The Court also made clear, however, that an increased sentence will not

always violate the defendant's right to due process. It stated,"A trial judge is not

constitutionally precluded . . . from imposing a new sentence, whether greater or

less than the original sentence, in the light of events subsequent to the first trial that

may have thrown new light upon the defendant's 'life, health, habits, conduct, and

mental and moral propensities,"' which are all permissible sentencing factors in the

federal system. Id. at 723 (quoting Williams v. New York, 337 U.S. 241, 245,

69 S. Ct. 1079, 93 L. Ed. 1337 (1949)).^ The Court noted that "[sjuch information

may come to the judge's attention from evidence adduced at the second trial itself,

from a new presentence investigation, from the defendant's prison record, or

possibly from other sources." Id. Thus, new information could justify a sentence

increase, but when no new information exists, a presumption ofjudicial

vindictiveness arises.




      ^ As discussed above, the SRA's "real facts" doctrine places additional
limits on what can be considered at sentencing under the SRA.



                                           11
State V. Brown (Ronald Richard), No. 95734-7
(Gordon McCloud, J., dissenting)



       No relevant new information about Brown or his crimes was presented at his

resentencing, though it certainly could have been."^ The presumption ofjudicial

vindictiveness therefore applies in this case.

       The majority holds to the contrary because it concludes that Brown's

sentences were not really increased. The majority reaches that conclusion by

comparing Brown's new total period of confinement to his initial total period of

confinement. Majority at 13-14.

      But that is not the correct comparison to make in Washington. Instead, as

discussed in Part A above, Washington courts must impose a specific sentence for

each specific offense of conviction based on "real facts" proved (or admitted)

about that specific offense. Thus, as a matter of state law. Brown's punishment did

increase because the comparison runs from a given conviction's initial sentence to

the same conviction's new sentence. And because the punishment increased under

state law, federal law requires that we presume that vindictiveness motivated the




        RCW 9.94.530(2) provides that "[o]n remand for resentencing following
appeal or collateral attack, the parties shall have the opportunity to present and the
court to consider all relevant evidence regarding criminal history, including
criminal history not previously presented." RCW 9.94A.525(22)further provides
that "[pjrior convictions that were not included in criminal history or in the
offender score shall be included upon any resentencing to ensure imposition of an
accurate sentence."


                                          12
State V. Brown (Ronald Richard), No. 95734-7
(Gordon McCloud, J., dissenting)



harsher punishment, unless the sentencing court relied on new information to

justify the harsher punishment.

      The majority follows federal circuit courts of appeals that compare the "total

aggregate" of prison time imposed at the two sentencing hearings. Majority at 11.

But those decisions are inapt because they are based on a fundamentally different

sentencing scheme—one in which the sentencing court may consider uncharged

conduct, e.g., UNITED STATES Sentencing Commission Guidelines Manual

2018 § lB1.3(a), http://www.ussc.gov/sites/default/files/pdf/guidelines-

manual/2018/GLMFull.pdf[https://perma.cc/V43L-MQP6] as well as acquittals

and reversed convictions. See Watts, 519 U.S. at 151-54. Under that sentencing

scheme, federal courts consider sentences a package penalty for the crimes of

conviction. See United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir. 1989);

United States v. Gray, 852 F.2d 136, 138 (4th Cir. 1988); United States v. Shue,

825 F.2dllll, 1114-15 (7th Cir. 1987); United States v. Bay, 820 F.2d 1511,

1513-14 (9th Cir. 1987). Contrary to the federal model, where the "factors

underlying the original sentence in a multiple count case are not necessarily altered

when a defendant successfully appeals his conviction on one count," Pimienta-

Redondo, 874 F.2d at 14, the facts are necessarily altered in Washington when a

conviction is overturned. RCW 9.94A.530(2); McAlpin, 108 Wn.2d at 465-67.


                                         13
State V. Brown (Ronald Richard), No. 95734-7
(Gordon McCloud, J., dissenting)



      C.     Subsequent Decisions Narrowed Pearce—^But It Still Applies with
             Full Force to This Exact Type of Case

      It is true that subsequent United States Supreme Court decisions have

limited Pearce. But those decisions reinforce, not undermine, the conclusion that

the presumption ofjudicial vindictiveness applies here.

      The earliest ^ost-Pearce Supreme Court decisions held that a presumption of

judicial vindictiveness does not arise when the second sentencer, whether it be

judge or jury, differs from the first sentencer. See Chaffin v. Stynchcombe, 412

U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714(1973); Cohen v. Kentucky, 407 U.S.

104, 92 S. Ct. 1953, 32 L. Ed. 2d 584(1972). The Court noted that there is less

risk of vindictiveness when the second sentencer "is not the court that is asked to

do over what it thought it had already done correctly." Cohen,407 U.S. at 116-17;

see also Chaffin, 412 U.S. at 27. In some instances, the second sentencer may not

even have knowledge of the initial sentence.           412 U.S. at 26-27.

Accordingly, no reasonable likelihood—and therefore no presumption—of

vindictiveness exists in those situations.

      Two later decisions, McCullough and Smith, underscored Pearce's

cautionary statement that no presumption ofjudicial vindictiveness arises when the

sentencing court relies on new, previously unavailable information to impose a

harsher sentence at resentencing.

                                             14
State V. Brown (Ronald Richard), No. 95734-7
(Gordon McCloud, J., dissenting)



       In McCullough, a defendant received a 20-year prison sentence after his first

trial for murder, but a 50-year prison sentence after his second trial. 475 U.S.

at 135-36. But the Court upheld the longer sentence against the defendant's

Pearce challenge. Reviewing the record, the Court noted that the trial judge

explained that she had imposed a 50-year sentence partly because of"the

testimony oftwo new witnesses" at the second trial that had cast the defendant's

conduct in a worse light. Id. at 143. The Court held that that testimony and other

new information about the defendant's criminal history permissibly supported the

increased sentence.^ Id. at 144. Thus, McCullough clarified that the Pearce

presumption does not apply when there is "new, probative evidence" to support the

imposition of a harsher sentence at the second proceeding. Id. at 143.

       Smith bolstered that conclusion. In that case, a defendant pleaded guilty to

burglary and rape and received two concurrent 30-year prison sentences for the

two convictions. 490 U.S. at 795-96. The defendant later argued that his plea was

not knowing and voluntary, and an appellate court permitted him to withdraw the

plea. Id. at 796.


       ^ Additionally, as in Colten and Chaffm,Pearce's,"presumption [was]
inapplicable because different sentencers assessed the varying sentences that [the
defendant] received." McCullough, 475 U.S. at 140. A jury initially determined
the defendant's sentence, but on retrial, the judge determined the sentence. Id. at
136.


                                         15
State V. Brown (Ronald Richard), No. 95734-7
(Gordon McCIoud, J., dissenting)



      The State then prosecuted the defendant for burglary, rape, and sodomy. Id.

At the trial, a cacophony of terrible facts emerged:

      [T]he victim testified that respondent had broken into her home in the
      middle of the night, clad only in his underwear and a ski mask and
      wielding a kitchen knife. Holding the knife to her chest, he had raped
      and sodomized her repeatedly and forced her to engage in oral sex
      with him. The attack, which lasted for more than an hour, occurred in
      the victim's bedroom,just across the hall from the room in which her
      three young children lay sleeping.

Id. On those facts, "[t]he jury returned a verdict of guilty on all three counts." Id.

      At sentencing,"the trial judge imposed a term of life imprisomnent for the

burglary conviction, plus a concurrent term of life imprisonment on the sodomy

conviction and a consecutive term of 150 years' imprisonment on the rape

conviction." Id. Thus, the sentences for the burglary and rape convictions

increased as compared to the initial sentences imposed for those crimes under the

plea bargain. And the life sentence for the new sodomy conviction far outstripped

the 30-year prison terms that the defendant had initially received for the other two

convictions.


      But the Supreme Court upheld the longer sentences against a Pearce

challenge, even though the same judge had imposed both sets of sentences. The

Court pointed out that "[t]he trial court [had] explained that it was imposing a

harsher sentence than it had imposed following [the defendant's] guilty plea


                                          16
State V. Brown (Ronald Richard), No. 95734-7
(Gordon McCloud, J., dissenting)



because the evidence presented at trial, of which it had been unaware at the time it

imposed sentence on the guilty plea, convinced it that the original sentence had

been too lenient." Id. at 196-91. And just as the new information made a

difference to the trial court, it made a difference to the Supreme Court's Pearce

analysis. "As this case demonstrates, in the course of the proof at trial the judge

may gather a fuller appreciation of the nature and extent of the crimes charged," it

observed. Id. at 801 (citation omitted). The Court therefore held that when new

information about the defendant's conduct comes into the record, the Pearce

presumption does not apply. Id. at 802.

      Cohen, Chaffin, McCullough, and Smith confirm that the Pearce

presumption applies in this case. The same superior court judge sentenced Brown

both times. VRP at 33-34. The State presented no new facts at the resentencing to

support the harsher exceptional sentences. In fact, Washington's "real facts"

doctrine provided that there were fewer inculpatory facts than existed at the initial

sentencing.

      Although the superior court complied with Pearce's, mandate to

affirmatively identify its reason for imposing harsher sentences on remand,

395 U.S. at 726, its explanation of its decision did not—and could not—generate

any new facts about the crime. The court stated only a general basis for imposing



                                          17
State V. Brown (Ronald Richard), No. 95734-7
(Gordon McCloud, J., dissenting)



sentences above the standard range, and it was a basis that was even more justified

at the first sentencing when the offender scores were far higher: "I don't think it's

appropriate for you to have free crimes in relation to what happened here."^ VRP

at 34. So that's not a new fact, either.

      Neither Brown's mitigating conduct—ensuring that one of the victims

received medication during the criminal episode, id. at 24, 33—nor the existence of

"free crimes" changed from one proceeding to the next. If anything, the "number"

of Brown's "free crimes" decreased when his offender score dropped from 19 to 11




      ^ RCW 9.94A.535(2)(c) permits an exceptional sentence above the standard
range when "[t]he defendant has committed multiple current offenses and the
defendant's offender score results in some of the current offenses going
unpunished"—or, in more common parlance, when the defendant gets "free
crimes." See State v. Alvarado, 164 Wn.2d 556, 567, 192 P.3d 345 (2008).

      The Court of Appeals explained how RCW 9.94A.535(2)(c) operates in
State V. Newlun:


      If the number of current offenses, when applied to the sentencing grid,
      results in the legal conclusion that the defendant's presumptive
      sentence is identical to that which would be imposed if the defendant
      had committed fewer current offenses, then an exceptional sentence
      may be imposed.

142 Wn. App. 730, 743, 176 P.3d 529(2008);         also RCW 9.94A.510 (providing
sentencing grid).



                                           18
State V. Brown (Ronald Richard), No. 95734-7
(Gordon McCloud, J., dissenting)



for the robbery and burglary convictions. In the absence of any new additional

inculpatory information, Pearce's presumption ofjudicial vindictiveness applies.^

      The State has made no effort to rebut that presumption. See Suppl. Br. of

Resp't at 8-11 (arguing only that the presumption does not apply). Accordingly,

we must presume that Brown's right to due process has been violated, and I would

reverse the decision of the Court of Appeals and remand the case for resentencing

on that basis.


                                    Conclusion


      The Court of Appeals reversed four of Brown's seven convictions due to

constitutional error. The judge then imposed a higher sentence on each of his three

remaining convictions. There were no new facts to justify the new, higher,

sentences. We must therefore apply the Pearce presumption ofjudicial

vindictiveness. The State offers only the facts of reversed convictions to rebut that

presumption, and that does not suffice.

      I respectfully dissent.




      ^ Division Two has reached the same conclusion. See State v. Ameline, 118
Wn. App. 128, 133, 75 P.3d 589 (2003). "If the only new fact is that [the
defendant] has again succeeded on appeal, the new sentence may not be more
harsh than the first and second ones." Id. at 134.


                                          19
State V. Brown (Ronald Richard), No. 95734-7
(Gordon McCloud, J., dissenting)




                                        20
