544	                                  June 22, 2017	           No. 32
32
State v. Febuary                                                              361
                                                                        June 22,   Or
                                                                                 2017




                          IN THE SUPREME COURT OF THE
                                STATE OF OREGON

                                 STATE OF OREGON,
                                Respondent on Review,
                                            v.
                             ROGER ROBERT FEBUARY,
                                  Petitioner on Review.
                         (CC 080982; CA A154662; SC S063867)

                   En Banc
                   On review from the Court of Appeals.*
                   Argued and submitted January 12, 2017.
   David O. Ferry, Deputy Public Defender, Salem, argued
the cause and filed the brief for the petitioner on review. Also
on the brief was Ernest G. Lannet, Chief Defender, Office of
Public Defense Services.
   Jonathan N. Schildt, Assistant Attorney General, Salem,
argued the cause and filed the brief for the respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
                   BALMER, C.J.
   The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.




______________
	 * Appeal from Lincoln County Circuit Court, Thomas O. Bradford, Judge.
274 Or App 820, 361 P3d 661 (2015).
Cite as 361 Or 544 (2017)	545

     Case Summary: Defendant was convicted of five counts. The convictions were
reversed on appeal and remanded. On remand, defendant pled guilty to two of
the original five counts. At resentencing, the trial court imposed a new sentence
that was shorter in total than the original sentence, but included a sentence of
12 months’ imprisonment on a misdemeanor count that had originally carried a
sentence of probation only. Defendant challenged the new sentence as violating
the rule against vindictiveness set out in State v. Partain, 349 Or 10, 239 P3d 232
(2010), and North Carolina v. Pearce, 395 US 711, 89 S Ct 2072, 23 L Ed 2d 656
(1969). The Court of Appeals affirmed, concluding that defendant’s second sen-
tence did not trigger the “presumption of vindictiveness.” Held: A “presumption
of vindictiveness” applies when a second sentence in aggregate is longer than the
first sentence in aggregate; therefore, defendant’s second, shorter sentence did
not violate the rule against vindictiveness.
    The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
546	                                         State v. Febuary

	       BALMER, C. J.
	        The prophylactic rule of State v. Partain, 349 Or
10, 239 P3d 232 (2010), protects against vindictiveness in
the resentencing of a criminal offender after a successful
appeal. Partain, in turn, was based on North Carolina v.
Pearce, 395 US 711, 89 S Ct 2072, 23 L Ed 2d 656 (1969),
where the United States Supreme Court held that due pro-
cess “requires that vindictiveness against a defendant for
having successfully attacked [a] first conviction must play
no part in the sentence [the defendant] receives after a
new trial.” Id. at 725. In this case, the specific issue is how
Partain and Pearce apply if an offender’s total sentence has
decreased after resentencing, but a sentence imposed for
one of several individual counts has increased. A separate
and preliminary issue is whether this court and the Court
of Appeals have jurisdiction to hear this case and review
defendant’s claims. We conclude that the appellate courts
have jurisdiction to consider defendant’s appeal. On the
merits, we conclude that defendant’s sentence does not vio-
late the rule against vindictiveness.
              I.  FACTUAL BACKGROUND
	        A jury found defendant guilty of five crimes relating
to an incident where defendant provided a minor with alcohol
and sexually abused her. Defendant was convicted and sen-
tenced as follows: two terms of 75 months’ imprisonment for
two counts of sexual abuse in the first degree, ORS 163.427;
20 months’ imprisonment for one count of attempted sodomy
in the second degree, ORS 163.395; 60 months’ probation for
one count of providing alcohol to a person under 21 years of
age, ORS 471.410(2); and 60 months’ probation for one count
of sexual harassment, ORS 166.065(4)(a). The sentencing
court ordered that the three prison terms run consecutively
and that the probation terms run concurrently. In total,
defendant was sentenced to 170 months’ imprisonment and
60 months’ probation. Defendant appealed and the Court
of Appeals reversed because of evidentiary error at trial.
State v. Febuary, 253 Or App 658, 666, 292 P3d 604 (2012)
(Febuary I).
	        On remand, defendant made a plea bargain with
the state. Defendant pled guilty to one count of sexual abuse
Cite as 361 Or 544 (2017)	547

in the first degree and one count of providing alcohol to a
person under 21. The state dismissed the remaining three
charges. The state asked for a sentence of 12 months on the
providing alcohol conviction, on which the defendant orig-
inally had received only probation. Defendant argued that
imposing any sentence of imprisonment on the providing
alcohol count was vindictive and would violate his due pro-
cess rights under Pearce.
	         After hearing arguments, the court sentenced
defendant to 75 months’ imprisonment on the sexual abuse
count and 12 months’ imprisonment on the providing alcohol
count, to run consecutively. As a result, his final sentence
was 87 months in prison. The judge stated that he had a
“non-vindictive reason” for changing the sentence on the pro-
viding alcohol count: the nature of defendant’s crime, which
he described as “malicious” and “profoundly offensive.” The
judge explained that defendant’s crime was not “just a mat-
ter of leaving a jug of whiskey on the coffee table for a child
to use while they’re watching television.” Rather, defendant
provided alcohol to a minor “to facilitate the commission of
sex abuse in the first degree.” The judge further stated that
his previous decision to impose a sentence of probation for
the providing alcohol conviction occurred in the context of
the “overall [sentencing] scheme,” i.e., defendant’s otherwise
total sentence of 170 months’ imprisonment. At resentenc-
ing, however, the single other count carried a sentence of 75
months. The judge explained that the shorter total sentence
motivated his decision to change the sentence on the misde-
meanor from probation to 12 months’ imprisonment.
	        Defendant again appealed, arguing that the increased
sentence on the providing alcohol count was prohibited
under Pearce and violated his due process rights. Defendant
did not assert that the sentence violated any other statu-
tory or constitutional limits. The Court of Appeals identified
the issue as “the precise standard for measuring whether
a new sentence triggers the presumption of vindictiveness,”
which, it observed, “since the issuance of Pearce, ‘has been
the subject of some confusion.’ ” State v. Febuary, 274 Or App
820, 826, 361 P3d 661 (2015) (Febuary II) (quoting United
States v. Campbell, 106 F3d 64, 67 (5th Cir 1997)). The court
noted that the federal courts of appeals have split in their
548	                                                         State v. Febuary

resolution of that issue, with a majority of circuits apply-
ing the “aggregate approach,” which looks at whether an
offender’s total sentence has increased following a success-
ful appeal and resentencing to apply the rule of Pearce. Id.
A minority of circuits employ the “remainder aggregate”
approach, which applies the rule of Pearce when “the new
sentence on the remaining counts exceeds the original sen-
tence on those counts.”1 Id. (quoting Campbell, 106 F3d at
68).
	        The court then analyzed our decision in Partain
and concluded that, in that case, this court did not consider
“the length or nature of the individual sentences that had
been imposed by the trial court, but only the length of the
total sentences that had been imposed.” Id. at 829. Here,
because the length of the total sentence decreased, the court
concluded that a presumption of vindictiveness did not apply
and affirmed the trial court. Id. at 832.
	        Defendant petitioned for review, and we allowed
the petition. After we allowed the petition, the state filed
a motion to determine jurisdiction, contending that neither
the Court of Appeals nor this court had appellate jurisdic-
tion over the case. We instructed the parties to address that
issue at oral argument.
                           II. JURISDICTION
	      The jurisdictional issue in this case is whether
an appellate court may review a defendant’s due process
	1
       In justifying its conclusion, the Court of Appeals stated, “We note, in partic-
ular, that the United States Court of Appeals for the Ninth Circuit has adopted
the ‘aggregate package’ approach. Although we are not bound by the decision of
the United States Court of Appeals for the Ninth Circuit, ‘Oregon courts often
give particular weight to those decisions because Oregon lies in that circuit.’ ”
Febuary II, 274 Or App at 830-31 (citation omitted; quoting Miller v. Pacific
Trawlers, Inc., 204 Or App 585, 612 n 23, 131 P3d 821 (2006)). That assertion
is incorrect. The persuasive authority of the Ninth Circuit on Oregon courts on
general principles of federal law flows only from the strength of its reasoning; the
Ninth Circuit’s geographic boundaries are irrelevant. This court has stated, “As
to the meaning of the federal Constitution and laws, to which ‘the judges in every
state shall be bound,’ US Const, Art VI, cl 2, we are bound only by the interpreta-
tions given those laws by the Supreme Court of the United States.” State v. Moyle,
299 Or 691, 707, 705 P2d 740 (1985). And although this court and the Court of
Appeals “ordinarily * * * respect the decisions of lower federal courts on issues of
federal law,” id., neither this court nor the Court of Appeals are bound by them.
State v. Reyes-Camarena, 330 Or 431, 436 n 2, 7 P3d 522 (2000).
Cite as 361 Or 544 (2017)	549

challenge to a misdemeanor sentence in a case where the
defendant was sentenced on both misdemeanor and felony
convictions, and the defendant pleaded guilty. The state
argues that because defendant is challenging the increased
sentence on his misdemeanor conviction for providing alco-
hol to a minor, his appeal is governed by ORS 138.040 and
ORS 138.050, and those statutes do not permit an appeal in
the circumstances present here. Responding to defendant’s
claim that ORS 138.222 confers jurisdiction here, the state
argues that ORS 138.222 applies to the appeal and review of
felonies only, and does not confer appellate jurisdiction over
defendant’s case because defendant seeks review of his mis-
demeanor sentence and not his felony sentence. Defendant
asserts that ORS 138.222 confers jurisdiction here regard-
less of the particular arguments that he makes on appeal.
We agree with defendant and conclude that ORS 138.222
confers appellate jurisdiction over this case.
	        We begin with basic principles: A criminal defendant
does not have an inherent right to appeal; he or she must
appeal pursuant to some statute authorizing the appeal and
granting the appellate court jurisdiction. State v. Cloutier,
351 Or 68, 74, 261 P3d 1234 (2011). Furthermore, the abil-
ity of a party to appeal a case, and of a court to hear it, is
distinct from reviewability. State v. Montgomery, 294 Or 417,
420, 657 P2d 668 (1983). “Appealability generally is con-
cerned with whether an appeal can be taken at all. Usually,
but not always, appeals lie only from final judgments and
orders. Reviewability generally involves the consideration
of a variety of rulings and orders made by the court, usu-
ally before judgment.” Id. (emphasis omitted). Therefore,
we must conclude both that the judgment is appealable and
that the claim defendant raises is reviewable.
	        Our analysis in Cloutier of the statutes that allow
for appeals of criminal convictions is helpful. In that case,
we explained that two statutes governing criminal appeals,
ORS 138.040 and ORS 138.050, do not govern appeal and
review in all criminal appeals, even though the text of those
provisions might suggest as much. 351 Or at 90. Rather,
those statutes must be read together with later-enacted ORS
138.222. ORS 138.222(7) “begins by authorizing appeals
of judgments of conviction based on a sentence for felonies
550	                                          State v. Febuary

committed on or after November 1, 1989.” Cloutier, 351 Or
at 90. ORS 138.222(1) provides, “Notwithstanding the pro-
visions of ORS 138.040 and 138.050, a sentence imposed for
a judgment of conviction entered for a felony * * * may be
reviewed only as provided by this section.” Based on those
provisions, we concluded that ORS 138.222 governed appeal
and review of sentences for felonies and therefore “ORS
138.040 and ORS 138.050 * * * apply only to appeal and
review of sentences for misdemeanor offenses.” Cloutier, 351
Or at 91.
	What Cloutier did not address, and what we must
address in this case, is how appeal and review work in cases
such as this, which include both felony and misdemeanor
convictions and sentences. Appeals are generally taken from
“final judgments and orders,” not sentences. Montgomery,
294 Or at 420; see also ORS 138.053 (describing appeal-
able orders and judgments in criminal cases). Here, a sin-
gle judgment contains convictions and sentences for both a
misdemeanor and a felony, so the question is whether ORS
138.222 or ORS 138.050 governs the appeal and review.
	        Other provisions of ORS 138.222 provide for appel-
late jurisdiction and define the scope of review under that
section:
   	 “(4)  In any appeal, the appellate court may review a
   claim that:
   	 “(a)  The sentencing court failed to comply with require-
   ments of law in imposing or failing to impose a sentence;
   	   “* * * * *
   	 “(7)  Either the state or the defendant may appeal a
   judgment of conviction based on the sentence for a felony
   * * *.”
We interpret ORS 138.222 in light of the text, context, and
legislative history. State v. Gaines, 346 Or 160, 171-73, 206
P3d 1042 (2009). Our consideration of context includes the
structure of the statute as a whole. See Wetherell v. Douglas
County, 342 Or 666, 678, 160 P3d 614 (2007) (“This court
does not look at one subsection of a statute in a vacuum;
rather, we construe each part together with the other parts
Cite as 361 Or 544 (2017)	551

in an attempt to produce a harmonious whole.” (Internal
quotation omitted.)).
	         Both parties struggle to present a persuasive inter-
pretation of the text in subsection (7)—“[a party] may
appeal a judgment of conviction based on the sentence for
a felony.” That phrase presents an immediate ambiguity:
what does the term “based on the sentence for a felony” mod-
ify? Defendant contends that the term modifies “judgment of
conviction,” so that the word “judgment” in ORS 138.222(7)
means a judgment containing a felony conviction. But defen-
dant does not explain why the legislature would use such a
strange construction (“judgment of conviction based on the
sentence for a felony”) to describe a concept that it describes
clearly in other places. See, e.g., ORS 138.222(1) (“judgment
of conviction entered for a felony”). Moreover, a judgment
of conviction is not, within the ordinary understanding of
that phrase, something that can be “based on the sentence.”
Rather, the obverse is true: A sentence is based on a con-
viction. The state argues that “based on the sentence for a
felony” modifies “appeal” and operates as a limit on review-
ability, therefore barring defendant’s claims regarding his
misdemeanor sentence. But that also is an unusual con-
struction. The meaning of the words in isolation is not clear.
	        The structure of ORS 138.222 reveals an answer.
Subsections (1) through (4) address reviewability, subsec-
tions (5) and (6) address appellate court procedure, and
subsection (7) addresses appealability. See Cloutier, 351 Or
at 90-91 (identifying ORS 138.222(1) to (4) as “specif[ying]
the scope of review” and subsection (7) as “authorizing” the
appeal of certain judgments); State v. Nix, 356 Or 768, 775-
76, 345 P3d 416 (2015) (same). The state’s proposed con-
struction would have subsection (7) containing a grant of
appealability and a limitation on reviewability. We think
that it is unlikely that the legislature would describe with
specificity the scope of review in subsections (1), (2), (3),
and (4)—and then add to that definition an at-best ambig-
uous phrase in subsection (7), a subsection that other-
wise addresses appealability. We think the phrase in sub-
section (7), “based on the sentence,” is more likely to be a
reminder that ORS 138.222 as a whole concerns the review
of sentences, and not review of other issues. See Cloutier, 351
552	                                        State v. Febuary

Or at 97 (“Redundancy in communication is a fact of life and
of law.”).
	        ORS 138.222 also contains a significant clue as to
what the legislature intended in cases that involve multiple
convictions. ORS 138.222(5)(a) indicates that if an appel-
late court determines that a sentencing error has been
committed that requires resentencing, “the appellate court
shall remand the entire case for resentencing[,]” and on
remand, the sentencing court “may impose a new sentence
for any conviction in the remanded case.” (Emphasis added.)
Nothing in that provision indicates that misdemeanor sen-
tences are not part of “the entire case,” as that phrase is
used in ORS 138.222(5)(a). Similarly, ORS 138.222(5)(b)
confirms that the legislature contemplated that the appeal
of a judgment containing convictions for felonies and mis-
demeanors be heard under that section, as it states that a
reviewing court must follow certain procedures “in a case
involving multiple counts of which at least one is a felony.”
We conclude that “[a party] may appeal a judgment of con-
viction based on the sentence for a felony” means that a
judgment appealable under ORS 138.222(7) must contain
at least one felony conviction and may contain one or more
misdemeanor convictions.
	        That conclusion is consistent with our earlier inter-
pretation of the statute in Cloutier. There, we described
ORS 138.222 as “govern[ing]” the “appeal and review of sen-
tences imposed for felonies.” Cloutier, 351 Or at 91. By com-
parison, as noted, Cloutier described ORS 138.040 and ORS
138.050 as applying “only to appeal and review of sentences
for misdemeanor offenses.” Id. (emphasis added). The omis-
sion of that word of exclusivity in describing ORS 138.222 as
“govern[ing]” felony appeals, allows for the possibility that
ORS 138.222 also applies to misdemeanor convictions that
are included in judgments containing felony convictions. Id.
Cloutier thus implied the conclusion we arrive at here.
	        In sum, we interpret subsection (7), subject to the
other conditions identified in that subsection, to allow the
state or a defendant to appeal a judgment containing one or
more convictions for a felony, and to appeal a judgment that
includes one or more convictions for a felony and one or more
Cite as 361 Or 544 (2017)	553

convictions for a misdemeanor. Those cases may be reviewed
as provided in ORS 138.222(1) - (4).
	         Applying the foregoing to this case, defendant’s
judgment of conviction contains two counts: sexual abuse in
the first degree, a felony; and furnishing alcohol to a person
under 21, a misdemeanor. Because the judgment contains a
conviction for a felony, defendant may appeal from the judg-
ment under ORS 138.222(7). That provision establishes the
jurisdiction of this court and the Court of Appeals to hear
defendant’s case. Defendant challenges his sentence for vio-
lating his due process rights. That argument is a “claim that
* * * [t]he sentencing court failed to comply with require-
ments of law in imposing” a sentence, so ORS 138.222(4)(a)
grants appellate courts the power to review defendant’s
claim. Revewiability is thus also established.
	        ORS 138.222 confers on the appellate courts juris-
diction to hear this case and review defendant’s claims, and
we therefore deny the state’s motion to dismiss for lack of
jurisdiction.
         III.  CONSTITUTIONAL ARGUMENTS
A.  State v. Partain
	        We begin our discussion of defendant’s constitu-
tional arguments with Partain, where this court addressed
“the possibility that trial courts may employ their sentenc-
ing authority to punish defendants for having the temerity
to appeal earlier convictions and sentences.” 349 Or at 17.
In that case, the defendant was originally convicted of 12
sex crimes and sentenced to 420 months in prison. Id. at
12. On appeal, the Court of Appeals vacated the sentences
on four counts of conviction and remanded the entire case
for resentencing. Id. On remand, the trial court imposed
sentences on the remaining eight counts that totaled 600
months’ imprisonment. Id. “The court did not state any
reasons for imposing the lengthier overall sentence” and
there was no new information present in the record. Id.
The defendant appealed again, this time challenging the
lengthier sentence as incompatible with this court’s decision
in State v. Turner, 247 Or 301, 429 P2d 565 (1967), which
prohibited trial courts from imposing a harsher sentence
554	                                             State v. Febuary

on retrial after a defendant successfully appealed an initial
conviction.
	        In considering the Partain defendant’s challenge,
this court concluded that legislative changes to certain sen-
tencing statutes had “undermine[d] the essential premise
for the holding in Turner.” Partain, 349 Or at 22. Abandoning
Turner, the court looked for a source of law to address the
possibility of vindictiveness playing a role in the resentenc-
ing of a defendant following a successful appeal of a con-
viction. Finding that no part of the Oregon Constitution
“answers the question directly,” the court turned to the
guarantees of the due process clause, as analyzed in Pearce,
as protecting defendants’ rights in that regard. Partain,
349 Or at 23. Oregon courts were, of course, already bound
by Pearce; in Partain this court reaffirmed that obligation
and determined that neither the Oregon Constitution nor
Oregon statutes required more than the federal rule. The
Partain court stated the rule of Pearce:
   “If an Oregon trial judge believes that an offender whom the
   judge is about to resentence should receive a more severe
   sentence than the one originally imposed, the judge’s rea-
   sons must affirmatively appear on the record. Those rea-
   sons must be based on identified facts of which the first sen-
   tencing judge was unaware, and must be such as to satisfy
   a reviewing court that the length of the sentence imposed is
   not a product of vindictiveness toward the offender. Absent
   such facts and reasons, an unexplained or inadequately
   explained increased sentence will be presumed to be based
   on vindictive motives, and will be reversed.”
Partain, 349 Or at 25-26.
	        This case presents the question of how to apply that
rule in a case with multiple counts of conviction. Neither this
court in Partain nor the Supreme Court in Pearce or later
cases has squarely addressed that issue. As the Supreme
Court is the “final arbiter of federal constitutional require-
ments,” it is our task here to “determine how that Court
would decide” this case. State v. Williams, 357 Or 1, 16, 346
P3d 455 (2015). To do so, we turn to Pearce and its prog-
eny to better understand the constitutional issues. We then
consider what rule should be applied in the circumstances
Cite as 361 Or 544 (2017)	555

here that would be faithful to the constitutional rules and
concerns present in the Supreme Court’s decisions. Finally,
we will apply that rule to the facts of this case.
B.  North Carolina v. Pearce and its Progeny
	In Pearce, the defendant was convicted of a single
offense and sentenced to a term of imprisonment. 395 US
at 713. He appealed his conviction and obtained its reversal
and an order for a new trial. Id. He was convicted again
and sentenced to a prison term longer than his original sen-
tence. Id. The defendant sought post-conviction relief, chal-
lenging the longer sentence. Id. The United States Supreme
Court concluded that “penalizing” the defendant at his new
trial “for having successfully pursued a statutory right of
appeal or collateral remedy” violated due process. Id. at
724 (internal quotation omitted). The Court articulated
two related but separate rules to safeguard defendants’ due
process rights. First, it held “that vindictiveness against a
defendant for having successfully attacked his first convic-
tion must play no part in the sentence he receives after a
new trial.” Id. at 725. And second, it held that “a defendant
[must] be freed of apprehension of such a retaliatory moti-
vation on the part of the sentencing judge.” Id. The Court
noted that even the threat of vindictiveness in sentencing
might “chill the exercise of basic constitutional rights,” id.
at 724 (quoting United States v. Jackson, 390 US 570, 582,
88 S Ct 1209, 20 L Ed 2d 138 (1968)), so the Court created a
so-called “prophylactic rule”: A reviewing court would “pre-
sume” a “more severe” second sentence to be vindictive and
would invalidate it unless the resentencing judge identified
“objective information in the record justifying the increased
sentence.” United States v. Goodwin, 457 US 368, 373-74 &
n 5, 102 S Ct 2485, 73 L Ed 2d 74 (1982) (citing Pearce, 395
US at 726).
	In Pearce, “[b]eyond doubt, vindictiveness of a sen-
tencing judge is the evil the Court sought to prevent.” Texas
v. McCullough, 475 US 134, 138, 106 S Ct 976, 89 L Ed 2d
104 (1986). Understanding what is meant by “vindictive-
ness,” then, is an essential step in determining if it is pres-
ent in this case. The Court in Pearce emphasized that the
core due process concern is to avoid “penalizing” defendants
556	                                                        State v. Febuary

who chose to exercise their right to appeal. Pearce, 395 US at
724 (quoting Jackson, 390 US at 581); see also Bordenkircher
v. Hayes, 434 US 357, 363, 98 S Ct 663, 54 L Ed 2d 604
(1978) (“To punish a person because he has done what the
law plainly allows him to do is a due process violation of the
most basic sort.”). But a prominent purpose of the criminal
justice system is to punish offenders, so “[t]he presence of
a punitive motivation, therefore, does not provide an ade-
quate basis for distinguishing” legitimate punishment from
vindictive punishment. Goodwin, 457 US at 372-73. Rather
than a punitive motive, the touchstone for vindictiveness in
sentencing is the presence of an “improper motive.” Id. The
Court has suggested a number of possible improper motives:
“punishing [a] defendant for his having succeeded in get-
ting his original conviction set aside,” Pearce, 395 US at 723-
24; enforcing the “institutional bias inherent in the judi-
cial system against the retrial of issues that have already
been decided,” Goodwin, 457 US at 376; engaging in “self-
vindication,” McCullough, 475 US at 139 (quoting Chaffin v.
Stynchcombe, 412 US 17, 27, 93 S Ct 1977, 36 L Ed 2d 714
(1973)); or “discouraging * * * meritless appeals,” Chaffin,
412 US at 27.2
	        The presence of an “improper motive” by itself,
however, does not constitute a due process violation. The
improper motive must also have affected the proceedings in
some way. The Court has stated that, to violate due process,
the improper motive must lead to a “more severe sentence,”
Pearce, 395 US at 726, and has used similar terms indicat-
ing that the improper motive must make the defendant’s
sentence in some way worse or longer. See, e.g., Chaffin, 412
US at 24 (referring to “increased sentences,” “higher sen-
tences,” and “harsher resentencing”); Goodwin, 457 US at
373 (referring to “action detrimental to the defendant”).
Indeed, because “[m]otives are complex and difficult to
prove,” a defendant need not even show that one existed in
	2
        The Court’s treatment of various motives has evolved; the purpose of our
recitation here is to provide examples of motives that have been considered
improper and not to make a current statement of law. See, e.g., McCullough, 475
US at 139 (“[In certain circumstances] there is no justifiable concern about ‘insti-
tutional interests that might occasion higher sentences by a judge desirous of
discouraging what he regards as meritless appeals.’ ” (Quoting Chaffin, 412 US at
27.)).
Cite as 361 Or 544 (2017)	557

order to prevail in a Pearce challenge. Goodwin, 457 US at
373. Rather, the point of Pearce was that a reviewing court
could presume the existence of an improper motive when
there is a “reasonable likelihood” that a defendant’s “increase
in sentence is the product of actual vindictiveness,” that is,
the product of an improper motive. Alabama v. Smith, 490
US 794, 799, 109 S Ct 2201, 104 L Ed 2d 865 (1989) (inter-
nal quotation omitted). That presumption can be overcome if
the sentencing judge identified “objective information in the
record justifying the increased sentence.” Goodwin, 457 US
at 374.
	        Whether there is a reasonable likelihood of actual
vindictiveness also depends in part on the circumstances
of the case and the structure of the particular substantive
criminal laws and sentencing parameters in which that case
occurred—the “resentencing setting.” See Wayne R. LaFave,
Jerold H. Israel, Nancy J. King, & Orin S. Kerr, 6 Criminal
Procedure § 26.8(c), 1110 (4th ed 2015) (“The vindictiveness
presumption of Pearce does not apply to all settings present-
ing a resentencing following a reversed conviction and sub-
sequent reconviction.”). The Supreme Court has examined
several ways in which a defendant’s particular path through
a state’s criminal justice system may or may not give rise to
a presumption of vindictiveness. See id. at 1110-16 (summa-
rizing cases). For example, when a defendant’s initial con-
viction follows a guilty plea and his conviction after appeal
follows a jury trial, a presumption of vindictiveness will not
apply because “the increase in sentence is not more likely
than not attributable to the vindictiveness on the part of the
sentencing judge.” Smith, 490 US at 801.
	        In sum, the due process violation described in Pearce
occurs in principle when two elements are present: an
“improper motive” that causes a “more severe” second sen-
tence. In practice, even if there is no actual evidence of an
improper motive, but the resentencing setting and the greater
severity of the new sentence suggest that there is a “reason-
able likelihood” of actual vindictiveness, a reviewing court
will presume an improper motive and the state must “rebut
the presumption that an increased sentence * * * resulted
from vindictiveness.” Wasman v. United States, 468 US 559,
558	                                        State v. Febuary

569, 104 S Ct 3217, 82 L Ed 2d 424 (1984). A resentencing
setting that permits a presumption of improper motive, how-
ever, does not violate a defendant’s rights unless the judge
actually imposed a “more severe sentence upon [the] defen-
dant after a new trial.” Pearce, 395 US at 726. If a defendant
is unable to establish the presumption of improper motive,
the defendant always may show a due process violation by
“affirmatively prov[ing] actual vindictiveness,” Wasman,
468 US at 569, with proof that an improper motive caused
the “more severe” subsequent sentence, such as statements
by the judge demonstrating actual vindictiveness.
	        With that understanding of the Pearce rule, we turn
to the defendant’s arguments as to how the resentencing in
his case violates that rule. Regarding the first element, an
“improper motive,” defendant argues that the resentencing
setting gives rise to a presumption of an improper motive
because the same judge imposed the first and second sen-
tences. As to the second element, a “more severe sentence,”
defendant argues that, in multi-count cases like his, a sec-
ond sentence can be “more severe” and support a Pearce
violation even if it is shorter than the original sentence. To
prevail on his constitutional claim, defendant must estab-
lish both elements; ultimately, we conclude that he does not
establish either.
C.  Subconscious psychological effects are not “improper
    motives.”
	        Defendant argues that the fact that the same judge
imposed his first and second sentences justifies the pre-
sumption of an improper motive. He asserts that whenever
the same judge resentences a defendant, the judge “holds
a previous, self-generated conception of the total appropri-
ate punishment for a defendant” and thus any subsequent
harsher sentence should be presumed vindictive. Defendant
explains that certain “mental processes,” such as “cognitive
dissonance,” “confirmation bias,” and the “anchoring-and-
adjustment heuristic,” “create a near-ubiquitous human
tendency to insufficiently adjust to new information after
previously taking a position.” Defendant cites a number
of psychology studies that purport to establish that those
effects cause people, including judges, to “self-vindicate”
Cite as 361 Or 544 (2017)	559

prior decisions and to discount the importance of new facts.
In the words of one study quoted by defendant, a judge
“tends to make the resentencing decision on the basis of
personal psychological motivations rather than the merits
of the case.” James P. Monacell, An Application of Cognitive
Dissonance Theory to Resentencing and Other Reappearances
by the Same Judge, 1 L & Hum Behav 385, 390 (1977).

	        The state argues that subconscious cognitive biases
are not “improper motives” under Supreme Court case law.
We agree with the state, for three reasons. First, the influ-
ence of subconscious or unconscious biases can be profound,
but precisely because they are subconscious or unconscious,
those biases lack purpose or intention and therefore do not
demonstrate the improper motive that is a necessary part
of a Pearce due process violation. Second, the psychologi-
cal research that underlies defendant’s arguments existed
at the time of Supreme Court decisions in this area, and
the Court has demonstrated its awareness of those issues.
See Goodwin, 457 US at 377 (stating that “subconscious[ ]
motivat[ions]” might be part of a “vindictive * * * judicial
response” to a defendant’s appeal).3 But the Court has not
indicated that those theories justify applying the expansive
rule urged by defendant. Indeed, the prophylactic rule first
articulated in Pearce does not require any inquiry into the
reasons (subconscious, conscious, or otherwise) behind a
sentencing decision, and so the rule itself provides an ave-
nue for defendants to challenge any sentencing decisions
they believe are influenced by subconscious or unconscious
cognitive biases. Finally, defendant’s argument, if followed
to its logical conclusion, conflicts with the fundamental
tenet of our justice system that a judge’s decisions result
from an impartial application of the law to the facts, and
are not the result of a particular judge’s psychological predi-
lections. The profound implications of defendant’s argument
caution against its adoption in the absence of compelling

	3
       For example, defendant cites a “classic study” from 1959, Leon Festinger
and James M. Carlsmith, Cognitive Consequences of Forced Compliance, 58 J
Abnormal and Soc Psychol 203 (1959), and a 1977 law review article addressing
the application of psychological theories to the circumstance of judge resentenc-
ing, Monacell, 1 L & Hum Behav 385. Those papers predate Goodwin (1982),
McCullough (1986), Smith (1989), and other relevant Supreme Court cases.
560	                                                      State v. Febuary

proof of its pervasiveness. The mere fact that the same judge
resentences a defendant is not a basis for a presumption of
improper motive.
D.  In multiple count convictions, a longer aggregate sen-
    tence is “more severe.”
	        Defendant makes a second argument that a pre-
sumption of vindictiveness should apply because the mathe-
matical relationship between his first and second sentences
demonstrates that his second sentence, though shorter over-
all, is nonetheless more severe. Defendant proposes that
we apply the so-called “remainder aggregate approach” to
multi-count cases to determine whether the second sentence
is “more severe” and warrants the presumption of vindic-
tiveness. Under the remainder aggregate approach, in cases
where a defendant with multiple convictions succeeds in
having some of the convictions reversed on appeal, the sec-
ond sentence is “more severe” when the total sentence on the
counts at resentencing exceeds the total sentence on those
counts in the original sentence.4 Defendant asserts that the
remainder aggregate approach is legally required by Oregon’s
“per-offense” sentencing system, “in which each offense
must be given a single, appropriate sentence.” Defendant
suggests that “because trial courts are presumed to follow
the law,” if a judge on remand adjusts one count’s sentence
because of the sentences imposed on other counts in the
same case, in the absence of new facts to explain the change,
a reviewing court must presume an improper vindictive
motive. Defendant fails to identify any authority that estab-
lishes that point, but he implies that the state’s sentencing
policies require that result. See, e.g., Oregon Sentencing
Guidelines Implementation Manual 7 (1989) (stating the
“principle that presumptive punishments should be based on

	4
      If a reviewing court applied defendant’s proposed remainder aggregate
approach to this case, it would identify the counts of conviction in the later
proceeding—here, one count of sexual abuse in the first degree and one count of
providing alcohol to a person less than 21 years of age—and compare the sen-
tences received for those counts in the initial and subsequent sentencing proceed-
ings. The combined sentence on those two counts at defendant’s initial sentencing
was 75 months’ imprisonment and 60 months’ probation; on remand, it was 87
months’ imprisonment. As the total sentence on those two counts is longer in the
second sentencing, that sentence is more severe under the remainder aggregate
approach.
Cite as 361 Or 544 (2017)	561

the seriousness of the crime of conviction and the offender’s
criminal history”).
	        The state counters that that approach incorrectly
conceives of the sentencing process as “mechanical” and
“segmented” and ignores the fact that, under the guidelines,
“trial courts may consider the total sentence, and the rela-
tionship among individual sentences, in arriving at a sen-
tence on each count.” See, e.g., ORS 138.222(5)(b) (instruct-
ing an appellate court, after reversing one or more counts in
a multi-count case, to remand the entire case “for resentenc-
ing on the affirmed count or counts”). The proper approach
to analyzing multi-count cases at resentencing, the state
argues, is the “aggregate package” approach. Under that
approach, a reviewing court compares the total length of the
initial sentence and subsequent sentence and presumes an
improper motive when the aggregate second sentence is lon-
ger than the first.5 The state argues that a judge’s consider-
ation of the total sentence length when imposing a sentence
on one component count, as occurred here, is appropriate
and that the remainder aggregate approach is incorrect.6
	        We agree with the state. A judge has discretion
to set the length of a sentence within statutory and con-
stitutional parameters. State ex rel Huddleston v. Sawyer,
324 Or 597, 615, 932 P2d 1145, cert den, 522 US 994 (1997)
(“[C]ourts have inherent power to structure sentences in
certain respects” subject to the legislature’s “ ‘power to declare
what punishment may be assessed.’ ” (Quoting State v. Smith,
128 Or 515, 524, 273 P 323 (1929).)); see also Apprendi v.
New Jersey, 530 US 466, 481, 120 S Ct 2348, 147 L Ed 2d
	5
       A reviewing court applying the “aggregate package” approach here would
compare the total length of defendant’s original sentence—170 months’ impris-
onment and 60 months’ probation—with the total length of the new sentence—
87 months’ imprisonment—and conclude that the second sentence was not “more
severe” because the new sentence in aggregate was shorter than the original
sentence in aggregate.
	6
       In addition to the aggregate package approach and the remainder aggre-
gate approach, there is a third method to comparing sentences in multi-count
cases: the count-by-count approach. Under the count-by-count approach, an
overall sentence is considered more severe if the sentence on any single count
increases on resentencing. Defendant advocated the count-by-count approach in
his brief, but abandoned that rule in favor of the remainder aggregate approach
at oral argument. We agree with defendant that the count-by-count approach is
not warranted and disregard it.
562	                                         State v. Febuary

435 (2000) (“We have often noted that judges in this coun-
try have long exercised discretion * * * in imposing sentences
within statutory limits in the individual case.” (Emphasis in
original.)); Wasman, 468 US at 563 (“It is now well estab-
lished that a judge or other sentencing authority is to be
accorded very wide discretion in determining an appropri-
ate sentence.”). Defendant identifies no authority indicating
that a judge’s “inherent power” and “very wide discretion” in
sentencing excludes crafting a “package” sentence in which
the length of component counts are set in order to reach a
desired total sentence. To the contrary, authorities in a num-
ber of other jurisdictions that have affirmed the propriety of
allowing judges to “craft sentences on the various counts as
part of an overall sentencing scheme.” State v. Hudson, 293
Ga 656, 660, 748 SE2d 910, 913 (2013); see also United States
v. Handa, 122 F3d 690, 692 (9th Cir 1997), cert den, 522 US
1083 (1998) (adopting a “package” metaphor for sentences in
multi-count cases as “reflecting the likelihood that the sen-
tencing judge will have attempted to impose an overall pun-
ishment taking into account the nature of the crimes and
certain characteristics of the criminal”; collecting similar
federal cases); People v. Johnson, 2015 CO 70, ¶ 26, 363 P3d
169, 178 (2015) (explaining that the “rationale” supporting
the remainder aggregate approach is the assumption that
judges craft an “overall sentencing scheme” in multi-count
cases).
	        In Oregon as well, trial courts may assemble sen-
tences on individual counts to form a “package” sentence. See,
e.g., ORS 138.222(5)(b) (allowing trial judges to re-sentence
all convictions in a multi-count case when only some are
reversed on appeal). That discretion, of course, is limited
to the punishments authorized by statute. ORS 137.010(7)
permits a misdemeanant to be punished with a fine, a term
of imprisonment, or both; the crime of providing alcohol to
a person under the age of 21 years is punishable by a term
of imprisonment of up to one year. ORS 471.410(5); ORS
161.615(1). Within those parameters, a trial court has dis-
cretion to set an offender’s sentence, which may include cre-
ating a package sentence.
	        Once the scope of judicial discretion in setting sen-
tences is clear, there remains no reason to adopt the remainder
Cite as 361 Or 544 (2017)	563

aggregate approach as the metric for determining when a
resentencing is “more severe.” Pearce’s animating concern
was that criminal defendants might be punished for appeal-
ing their sentences, or deterred from doing so by the possi-
bility that a successful appeal might result in a more severe
punishment. The impact of a sentence on a defendant, and
its likely incentivizing effect on his decision to appeal, is best
captured by the aggregate package approach. Defendants’
decisions to appeal, after all, are primarily motivated by a
desire to reduce their overall time in prison, rather than to
redistribute prison time among multiple counts. See United
States v. Horob, 735 F3d 866, 871 (9th Cir 2013) (“If there is
a possibility of a sentence reduction and no risk of a sentence
increase, defendants will continue to appeal.”). For the pur-
poses of establishing a Pearce violation, a sentence is “more
severe” when the total length of the second sentence exceeds
that of the first, regardless of the counts of conviction.
	        Defendant makes a third argument that deserves
a response. Defendant claims that the “aggregate package”
approach to multi-count cases allows a judge to vindictively
sentence a defendant as long as the new sentence is less in
total than the original. In some cases, as in this one, the
reversal of some counts on appeal means that the second
sentence cannot exceed the original sentence. In those cases,
defendant argues, “the mere fact that the trial court did not
do what it could not have done does not logically reduce the
likelihood of a vindictive motivation.”
	        We agree with defendant that under the aggregate
package approach, there remains at least the possibility of
judicial vindictiveness at resentencing. But a “speculative”
possibility of vindictiveness does not warrant the application
of the prophylactic rule here. McCullough, 475 US at 139.
Because the rule operates in the absence of proof of actual
vindictiveness and “often blocks a legitimate response to
criminal conduct,” Wasman, 468 US at 566 (internal quo-
tation omitted), the Supreme Court has “restricted applica-
tion of Pearce to areas where its ‘objectives are thought most
efficaciously served.’ ” McCullough, 475 US at 138 (quoting
Stone v. Powell, 428 US 465, 487, 96 S Ct 3037, 49 L Ed 2d
1067 (1967)); see also Wasman, 468 US at 566 (“Because of
its severity, the Court has been chary about extending the
564	                                                       State v. Febuary

Pearce presumption of vindictiveness.” (Internal quotation
omitted.)). Furthermore, even with the attendant possibil-
ity of unconstitutional vindictiveness, “[t]he possibility of a
higher sentence [is] recognized and accepted as a legitimate
concomitant of the retrial process.” Chaffin, 412 US at 25
(citing Pearce, 395 US at 723); see also Partain, 349 Or at 26
(holding that “a trial court lawfully may impose a harsher
sentence on a defendant after retrial or remand” as long as
the court does not do so vindictively). But a defendant in
those circumstances is not unprotected. At resentencing,
a defendant may ask the judge to explain the reasoning
behind the sentencing decision and the explanation, or lack
thereof, may be evidence that would indicate actual vindic-
tiveness by showing the judge’s improper motive. Smith, 490
US at 799-800 (citing Wasman, 468 US at 569).7
                           IV. CONCLUSION
	        Defendant argues that his due process rights were
violated when the trial judge initially imposed a sentence
of 60 months’ probation on a misdemeanor conviction and
on remand imposed a sentence of 12 months’ imprisonment
for the same misdemeanor. The sentence was for one convic-
tion out of several that arose out of the same criminal inci-
dent. On the other convictions, his initial sentence included
170 months’ imprisonment; on remand, his sentence for
the single other conviction was 75 months’ imprisonment.
Defendant asserts that, in increasing the sentence on his
misdemeanor conviction, the judge violated the rule against
vindictiveness set out in Pearce and Partain. Defendant
argues that a presumption of vindictiveness should apply
because there is a “reasonable likelihood” of actual vindic-
tiveness, based on the fact that the same judge imposed the
initial and subsequent sentences, and the fact that when

	7
       We note that a number of statutes and rules require trial courts, in certain
circumstances, to make findings and otherwise explain sentencing decisions,
which then may be subject to appellate review. See, e.g., ORS 137.671 (trial court
may depart from presumptive felony sentences upon making certain findings);
OAR 213-008-0001 to 213-008-0007 (same); ORS 137.123(5) (trial court may
impose consecutive rather than concurrent sentence upon making certain find-
ings). We express no opinion about how such statutes and rules relate to the kind
of explanation referred to in Pearce and Partain, but only observe that it is a
routine practice in sentencing for trial courts to make findings and offer grounds
for exercising their discretion to impose a particular sentence.
Cite as 361 Or 544 (2017)	565

analyzed under the remainder aggregate approach, defen-
dant’s second sentence was “more severe” than the first.
	        For the reasons discussed above, the mere fact that
the same judge presides over an initial and subsequent pro-
ceeding does not warrant the presumption of vindictiveness.
We also reject defendant’s claim that his later sentence was
“more severe” because the trial increased the sentence for
one of his convictions. Rather, we conclude that the correct
approach is to compare the aggregate original sentence to
the aggregate sentence on remand. Defendant’s initial sen-
tence was 170 months’ imprisonment and 60 months’ proba-
tion, and his subsequent sentence was 87 months’ impris-
onment. Because defendant’s sentence on remand was not
“more severe” than his initial sentence, there is no presump-
tion of an improper motive on the part of the trial judge.
Defendant presented no other evidence that the trial court
acted vindictively or out of an improper motive when sen-
tencing him on remand. The trial judge acted within the
requirements of due process and did not violate the Pearce
rule.
	       The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.
