No. 41	                             August 10, 2017	723
41
State v. Sierra                                                                          361
                                                                                 August 10,   Or
                                                                                            2017




                         IN THE SUPREME COURT OF THE
                               STATE OF OREGON

                               STATE OF OREGON,
                               Respondent on Review,
                                          v.
                                JOAQUIN SIERRA,
                                Petitioner on Review.
                       (CC 05C40355; CA A153534; SC S064237)

                  On review from the Court of Appeals.*
                  Argued and submitted May 8, 2017.
   David O. Ferry, Deputy Public Defender, Salem, argued
the cause and filed the briefs for petitioner on review. Also
on the briefs was Ernest G. Lannet, Chief Defender, Office
of Public Defense Services.
   Timothy A. Sylwester, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
Also on the brief were Frederick M. Boss, Deputy Attorney
General, and Benjamin Gutman, Solicitor General.
   Before Balmer, Chief Justice, and Kistler, Walters, Landau,
and Nakamoto, Justices, and Baldwin, Senior Justice pro
tempore.**
                  WALTERS, J.
   The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.




______________
	**  On appeal from Marion County Circuit Court, Susan M. Tripp, Judge. 278
Or App 96, 374 P3d 952 (2016).
	   **  Brewer, J., retired June 30, 2017, and did not participate in the decision
of this case. Flynn and Duncan, JJ., did not participate in the consideration or
decision of this case.
724	                                                         State v. Sierra

    Case Summary: Defendant was convicted of nine offenses and sentenced to
250 months in prison. On review, this court reversed two of defendant’s convic-
tions and remanded the case to the trial court for resentencing. State v. Sierra,
349 Or 506, 254 P3d 149 (2010), adh’d to as modified, 349 Or 604, 247 P3d 759
(2011). On remand, before a different judge, the state sought upward departure
sentences based on enhancement factors found by the jury. The second sentenc-
ing court imposed a total sentence of 276 months—an increase of 26 months over
the original sentence. Defendant appealed, arguing that (1) the Smith rule and
the Double Jeopardy Clause of the federal constitution prevented the sentencing
court from applying ORS 138.222(5)(b) and imposing new sentences on defen-
dant’s UUW convictions because defendant had served the original sentences
on those counts; and (2) under Pearce and Partain, the Court of Appeals was
required to presume that the second sentencing judge had acted vindictively and
that due process therefore precluded imposition of a more severe sentence. The
Court of Appeals affirmed the judgment of the trial court, and defendant peti-
tioned for review by this court. Held: In a unanimous opinion, the Supreme Court
held that (1) the common-law rule of State v. Smith, 323 Or 450, 918 P2d 824
(1996), and the Double Jeopardy Clause of the United States Constitution did not
prevent the trial court from resentencing defendant on all of the convictions that
remained on remand, pursuant to ORS 138.222(5)(b); and (2) when a different
judge resentences a defendant on remand and the sentence is more severe than
the sentence originally imposed, the Supreme Court’s decision in North Carolina
v. Pearce, 395 US 11 711, 89 S Ct 2072, 23 L Ed 2d 656 (1969), and this court’s
decision in State v. Partain, 349 Or 12 10, 239 P3d 232 (2010), require that the
second sentencing court articulate the reasons for the increased sentence on the
record, and that those reasons be “wholly logical” and “nonvindictive.”
    The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
Cite as 361 Or 723 (2017)	725

	       WALTERS, J.

	        This court reversed two of defendant’s nine con-
victions and remanded the case for resentencing on the
remaining convictions. State v. Sierra, 349 Or 506, 254 P3d
149 (2010), modified and adh’d to on recons, 349 Or 604, 247
P3d 759 (2011). On remand, a different judge, who did not
preside over defendant’s original trial, imposed a longer
total sentence than had the original trial court. This case
requires us to decide two issues: first, whether Oregon com-
mon law or the federal Double Jeopardy Clause precludes
the second sentencing court from imposing new sentences
on defendant’s convictions for unlawful use of a weapon
(UUW) because defendant already had served the previously
imposed sentences; and second, whether the Due Process
Clause, as interpreted by the United States Supreme Court
in North Carolina v. Pearce, 395 US 711, 89 S Ct 2072, 23
L Ed 2d 656 (1969), and by this court in State v. Partain,
349 Or 10, 239 P3d 232 (2010), precludes the imposition of a
more severe sentence than originally imposed. The answer
to both questions is no. We affirm the decisions of the trial
court and the Court of Appeals, State v. Sierra, 278 Or App
96, 374 P3d 952 (2016).

                    I. BACKGROUND

	        A jury convicted defendant of nine offenses: one
count of first-degree kidnapping; two counts of second-
degree kidnapping; one count of fourth-degree assault; and
five counts of unlawful use of a weapon (UUW). The state
did not allege enhancement factors. The trial court sen-
tenced defendant to a total of 250 months in prison. The
court imposed a 110-month sentence on the conviction for
first-degree kidnapping, two consecutive 70-month sen-
tences on the convictions for second-degree kidnapping, and
concurrent sentences of 14 months or less on the remaining
convictions (including all of defendant’s UUW convictions).
On review, this court concluded that the evidence did not
support the convictions for two counts of second-degree kid-
napping because the state had failed to prove the act ele-
ment. Sierra, 349 Or at 518. The court reversed defendant’s
convictions on those counts and remanded the case to the
726	                                                       State v. Sierra

trial court for resentencing. Sierra, 349 Or at 607 (modified
and adh’d to on recons).
	         On remand, before a different judge, the state
sought an upward departure sentence on defendant’s convic-
tion for first-degree kidnapping, as well as longer sentences
than originally imposed on the other convictions. On the
kidnapping conviction, the state alleged, and the sentencing
jury found, four enhancement factors—the use of a weapon;
threat of or actual violence towards a witness; prior sanc-
tions should have deterred defendant’s criminal conduct
and did not; and incarceration is necessary for public safety.
Based on the jury’s findings, the state sought, by upward
departure, a sentence of 220 months on that count—an
increase of 110 months over defendant’s original sentence.
The state also asked the court to place four of defendant’s
UUW convictions (counts 5, 7, 10, and 11) into grid block 6-D
and impose the 14-month presumptive sentence on each and
to require defendant to serve those four sentences consecu-
tively to each other and to the 220-month sentence imposed
on the kidnapping conviction, for a total sentence of 276
months.
	        Defendant objected under Partain, arguing that the
imposition of a longer total sentence would be presumed
vindictive because the second sentencing court would not
be basing its sentence on information unknown to the first
court at the time of the original sentencing. Defendant also
contended that the common-law rule of State v. Smith, 323
Or 450, 918 P2d 824 (1996), prevented the sentencing court
from imposing new sentences on any of the UUW convictions
because defendant had fully served the sentences originally
imposed on those counts. Finally, defendant argued that
revisiting a completely served sentence would deny him due
process and the swift and complete administration of jus-
tice, under Article I, section 10, of the Oregon Constitution.1
	       The sentencing court overruled defendant’s objec-
tions and imposed the sentence requested by the state. The

	1
      Defendant also objected to the enhancement factors on the ground that
allowing the state to rely on enhancement factors that it had withdrawn when
defendant was initially sentenced had the effect of denying him due process and
equal protection of law. That issue is not before this court on review.
Cite as 361 Or 723 (2017)	727

court explained that defendant’s sentence complied with
the Partain requirements because the court had based the
increased sentence on information not available to the first
court: the apparent continued impact of the crimes on the
victims and defendant’s prison disciplinary record. The
court also explained that it was imposing an upward dura-
tional departure sentence on the first-degree kidnapping
conviction based on the enhancement factors found by the
jury, and that the sentences requested by the state on the
UUW convictions were appropriate under the sentencing
guidelines.
	        Defendant appealed to the Court of Appeals, argu-
ing that (1) the Smith rule and the Double Jeopardy Clause
of the federal constitution prevented the sentencing court
from applying ORS 138.222(5)(b) and imposing new sen-
tences on any of the UUW convictions; and (2) under Pearce
and Partain, the Court of Appeals was required to presume
that the judge on remand had acted vindictively and that due
process precluded imposition of a more severe sentence. The
Court of Appeals rejected defendant’s arguments, holding
that the Smith rule did not bar the trial court from applying
ORS 138.222(5)(b) and modifying defendant’s UUW sen-
tences on remand and that the trial court had satisfied the
Pearce/Partain requirements. Sierra, 278 Or at 100-05. The
court also held that defendant’s double jeopardy argument
was not preserved and did not warrant plain error review.
Id. at 98.2
	       Defendant petitioned for review in this court, renew-
ing the arguments presented before the Court of Appeals.
We allowed defendant’s petition.
	2
       Defendant also argued before the Court of Appeals, and argues again on
review, that the second sentencing court violated due process and the Ex Post
Facto Clause of Article I, section 21, of the Oregon Constitution by applying the
Partain rule to his case. According to defendant, the rule abrogated by Partain—
the rule of State v. Turner, 247 Or 301, 429 P2d 565 (1967)—should apply to his
case because he originally appealed his kidnapping convictions in 2006, and the
Partain rule was announced by this court in 2009. Defendant conceded before
the Court of Appeals that he had not preserved an objection under the Ex Post
Facto Clause, and that court rejected defendant’s argument without discussion.
We also reject that argument as unpreserved and decline to exercise our discre-
tion to review it as plain error. See Ailes v. Portland Meadows, Inc., 312 Or 376,
381-82, 823 P2d 956 (1991) (explaining requirements for plain error review and
appellate court’s discretion to consider plain error).
728	                                           State v. Sierra

                       II. ANALYSIS
A.  Defendant’s Objections to Increases in His Sentence
    Based on Crimes of UUW
    1.  Defendant’s common-law argument
	        We turn, first, to defendant’s common-law argu-
ment, because our ordinary practice is to analyze state law
claims before reaching a party’s federal constitutional claims.
Sterling v. Cupp, 290 Or 611, 614, 625 P2d 123 (1981).
Defendant contends that the common-law Smith rule, which
prohibits a sentencing court from modifying a sentence that
has been served, precluded the trial court from imposing
a new sentence on defendant’s UUW convictions. The state
responds that the legislature partially overruled Smith when
it enacted what is now codified as ORS 138.222(5)(b). That
statute provides that, when an appellate court reverses the
judgment of conviction on any count in a multi-count case
in which at least one count is a felony, “the appellate court
shall remand the case to the trial court for resentencing on
the affirmed count or counts.” ORS 138.222(5)(b) (empha-
sis added). According to the state, in the limited circum-
stance in which a court reverses one or more convictions and
affirms the other convictions, and the court does not other-
wise rule that any of the sentences were imposed in error,
ORS 138.222(5)(b) has supplanted Smith to require that
the court remand the case for resentencing on all remaining
counts.
	In Smith, the defendant was convicted of numerous
felony and misdemeanor offenses and received a sentence of
consecutive and concurrent sentences totaling 120 months.
323 Or at 452. After the Court of Appeals affirmed the
defendant’s convictions but reversed the sentences on some
convictions, State v. Smith, 116 Or App 558, 563, 842 P2d
805 (1992), adh’d to on recons, 120 Or App 438, 852 P2d
934 (1993), the defendant was resentenced to 102 months in
prison. Smith, 323 Or at 452. The defendant then appealed
from the amended judgment, arguing that the sentencing
court had erred when it imposed new consecutive sentences
on some of his misdemeanor convictions because he already
had served the original sentences on those convictions at
the time of the resentencing. Id. at 452-53. On review, this
Cite as 361 Or 723 (2017)	729

court recognized the common-law rule that “a sentencing
court lacks the authority to modify a valid sentence once the
original sentence has been executed” and determined that
the same result follows “when the original sentence not only
has been executed, but also has been served.” Id. at 453-54.
	        Defendant and the state agree that, in response
to the Court of Appeals decision in Smith, the legislature
amended ORS 138.222(5)(a), which governs the scope of
review of sentences imposed on felony convictions, to expressly
authorize a remand for resentencing of the entire case when
an appellate court determines that there has been a sen-
tencing error. The amended provision provides,
   	 “The appellate court may reverse or affirm the sen-
   tence. If the appellate court concludes that the trial court’s
   factual findings are not supported by evidence in the record
   or do not establish substantial and compelling reasons for
   a departure, it shall remand the case to the trial court for
   resentencing. If the appellate court determines that the sen-
   tencing court, in imposing a sentence in the case, committed
   an error that requires resentencing, the appellate court shall
   remand the entire case for resentencing. The sentencing
   court may impose a new sentence for any conviction in the
   remanded case.”
ORS 138.222(5)(a); Or Laws 1993, ch 692, § 1 (added lan-
guage italicized). As this court recognized in Partain, that
amendment “unambiguously provides that, when a case is
remanded because of a particular sentencing error, the sen-
tencing court may impose different sentences on any and all
counts—even those not affected by the identified error.” 349
Or at 19.
	        In 2005, the legislature enacted ORS 138.222(5)(b).
Or Laws 2005, ch 563, § 2. That provision applies when an
appellate court reverses the judgment of conviction on any
count in a multi-count case, where at least one count is a
felony. ORS 138.222(5)(b) provides,
   	 “If the appellate court, in a case involving multiple
   counts of which at least one is a felony, reverses the judg-
   ment of conviction on any count and affirms other counts,
   the appellate court shall remand the case to the trial court
   for resentencing on the affirmed count or counts.”
(Emphasis added.)
730	                                           State v. Sierra

	        Defendant makes two arguments in support of his
position that the Smith common-law rule nevertheless gov-
erns in this case. We find neither persuasive. First, defen-
dant contends that neither ORS 138.222(5)(a) nor ORS
138.222(5)(b) abrogated the Smith rule because, when this
court decided Smith in 1996, the legislature already had
enacted the current version of ORS 138.222(5)(a), and, by
applying the common-law rule, the court impliedly acknowl-
edged its continuing vitality. Defendant cites Fulmer v.
Timber Inn Restaurant and Lounge, Inc., 330 Or 413, 424,
9 P3d 710 (2000), for the proposition that “[a]lthough the leg-
islature may abrogate rules of the common law by statute,” it
cannot be considered to have done so when the court recog-
nizes the common-law claim after the enactment of the legis-
lation in question. Because this court’s decision in Smith was
issued after the amendment to ORS 138.222(5)(a) became
effective, defendant argues that this court implicitly held, in
Smith, that that statute did not abrogate the common-law
rule. And, according to defendant, ORS 138.222(5)(b) should
not be construed more broadly than ORS 138.222(5)(a)
because ORS 138.222(5)(b) does not explicitly abrogate the
common-law rule.

	       The state responds that defendant misunderstands
the law that applied when this court decided Smith. The
current version of ORS 138.222(5)(a) did not become effec-
tive until after the Court of Appeals issued its opinion in
Smith. This court reviewed the Court of Appeals decision,
not the amended statute that was enacted after that deci-
sion. We agree with the state that the timing of this court’s
decision in Smith does not give rise to an inference that the
question presented here was answered there.

	        Next, defendant argues that the Smith rule and
ORS 138.222(5)(b) are not in conflict. Defendant contends
that, when the legislature enacted that provision, it would
have understood that a served sentence could not be resen-
tenced, and that the legislature used the phrase “affirmed
count or counts” because there is no reason to “affirm” a con-
viction for which the sentence has been fully served and that
is not challenged on appeal. According to defendant, even if
the last sentence of ORS 138.222(5)(a)—“[t]he sentencing
Cite as 361 Or 723 (2017)	731

court may impose a new sentence for any conviction in the
remanded case”—abrogated the Smith rule, the last clause
of ORS 138.222(5)(b)—“the appellate court shall remand
the case to the trial court for resentencing on the affirmed
count or counts”—has a substantially different, and nar-
rower, meaning. The state disagrees, arguing that the per-
tinent language in subsections (5)(a) and (5)(b) is substan-
tively the same.

	         In interpreting a statute, this court looks, first, at
the text and context of the statute. State v. Gaines, 346 Or
160, 164, 206 P3d 1042 (2009). Defendant’s textual argu-
ment rides on the meaning of the word “affirmed” in ORS
138.222(5)(b). According to Black’s Law Dictionary, to affirm
is to “confirm, ratify, or approve (a lower court’s judgment) on
appeal.” Black’s Law Dictionary 70 (10th ed 2014). There is
nothing in the definition of the word “affirm” that necessar-
ily limits its application as defendant contends. But, even if
defendant were correct that there is no reason for an appel-
late court to “affirm” a conviction when the sentence for the
crime has already been served, we doubt that the legislature
intended to preclude a trial court from resentencing on all
counts that were not reversed. First, as the state points out,
ORS 138.222(5)(a) permits the trial court to impose a new
sentence “for any conviction in the remanded case.” Second,
as we explained in Febuary v. State of Oregon, 361 Or 544,
562, 396 P3d 894 (2017), “trial courts may assemble sen-
tences on individual counts to form a ‘package’ sentence,”
“in which the length of component counts are set in order
to reach a desired total sentence.” Because Oregon law per-
mits trial courts to construct sentences in multi-count cases
as a “package,” we will not interpret ORS 138.222(5)(b) to
preclude trial courts from considering all unreversed con-
victions when formulating a new sentence on remand.

	        The legislative history of House Bill (HB) 2224
(2005), which was later codified as ORS 138.222(5)(b), is
consistent with that interpretation. Committee Counsel
Heidi Moawad testified that a recent Court of Appeals case
illustrated the reason for the proposed amendment. Audio
Recording, House Committee on Judiciary, Criminal Law
Subcommittee, HB 2224, Feb 1, 2005, at 8:48 (comments
732	                                                         State v. Sierra

of Heidi Moawad). In State v. Fry, 180 Or App 237, 246, 42
P3d 369 (2002), the Court of Appeals had reversed several
of the defendant’s convictions but had not remanded the
case for resentencing on the remaining convictions. Moawad
testified that, in that case, it would have been appropriate
to remand for resentencing on the remaining counts. Audio
Recording, House Committee on Judiciary, Criminal Law
Subcommittee, HB 2224, Feb 1, 2005, at 8:50 (comments
of Heidi Moawad). She explained that the proposed amend-
ment would permit appellate courts to order exactly that
and would prevent defendants from “getting a windfall”
based on the way a case was sentenced, for example, concur-
rently versus consecutively. Id. at 9:05. Assistant Attorney
General Jonathan Fussner also testified in support of the
bill, stating that the amendment was not about punishing
a defendant more harshly because he had appealed; rather,
the purpose was to allow courts to adjust the sentence on
the remaining counts to “get back [to] the sentence * * *
that originally was imposed and that the court believes
is the right sentence.” Id. at 12:50 (comments of Jonathan
Fussner). In response, a representative from the Oregon
Criminal Defense Lawyers Association argued that it would
not make sense for a defendant to be given the same sen-
tence on remand after successfully appealing one or more of
his convictions. Id. at 12:45 (comments of Kelly Skye). But,
at the very least, she asserted, the authority to resentence
on the remaining counts should be limited to counts arising
out of the same criminal episode as the reversed count or
counts. Id. at 28:53.
	        Thus, although witnesses disagreed about the scope
of the trial court’s authority on remand, their comments
reflect an understanding that trial judges have authority to
craft what amounts to a “package” sentence. See Febuary,
361 Or at 562 (explaining that “trial courts may assemble
sentences on individual counts to form a ‘package’ sentence”).
We conclude that, in enacting ORS 138.222(5)(b), the legis-
lature intended to permit judges to resentence defendants
on all of the convictions that remain on remand.3
	3
      We decide that that authority exists in the factual context presented here—
where all of defendant’s crimes were committed in the same criminal episode.
We do not decide whether that authority would extend to other factual contexts
Cite as 361 Or 723 (2017)	733

     2.  Defendant’s double jeopardy argument
	        For similar reasons, we also reject defendant’s argu-
ment that the federal Double Jeopardy Clause precludes
interpreting ORS 138.222(5)(b) to permit resentencing on
defendant’s UUW convictions. Assuming, without decid-
ing, that defendant preserved an objection based on double
jeopardy, defendant’s argument fails. The Double Jeopardy
Clause prohibits multiple punishments for the same offense.
United States v. DiFrancesco, 449 US 117, 127-28, 101 S Ct
426, 66 L Ed 2d 328 (1980). It protects against “additions to
a sentence in a subsequent proceeding that upset a defen-
dant’s legitimate expectation of finality.” Jones v. Thomas,
491 US 376, 385, 109 S Ct 2522, 105 L Ed 2d 322 (1989).
According to defendant, that expectation generally arises
after a sentence is complete. See United States v. Daddino,
5 F3d 262, 265 (7th Cir 1993) (defendant acquired a legit-
imate expectation of finality because defendant had com-
pleted service of his incarceration and paid all fines and
restitution).
	        Defendant cites United States v. Arrellano-Rios, 799
F2d 520 (9th Cir 1986), in support of that contention. In
Arrellano-Rios, the defendant was convicted on three counts
and sentenced to concurrent, one-year sentences on the
first two and a consecutive, five-year sentence on the third
count. Id. at 522. On appeal, the court reversed the defen-
dant’s third conviction but declined to remand the case for
resentencing because it concluded that the defendant had
served the one-year sentences on the first two counts. Id. at
523. The court explained that “increasing a legal sentence
that already has been fully served would violate the Double
Jeopardy Clause.” Id. Because neither party had “challenged
the legality of [the defendant’s] sentence” on the first two
counts, the court concluded, he “never [had] any reason to
question that his sentences on those counts would be fully
served by incarceration for one year.” Id. at 524.
	       The state responds that the Ninth Circuit more
recently has held that its decision in Arrellano-Rios does

or whether other law would limit the exercise of that authority in those circum-
stances. Those arguments are not raised in this case.
734	                                                           State v. Sierra

not apply to sentences that are imposed in multi-conviction
cases under the federal sentencing guidelines. United States
v. Radmall, 340 F3d 798 (9th Cir 2003). In Radmall, the
court held that the defendant’s original sentence constituted
a single “package” that reflected “his overall offense conduct
rather than separate and independent sentences on each
count.” Id. at 801. Accordingly, the court explained, “when
[the defendant] appealed his conviction and sentence on
count I, he was prevented from gaining a legitimate expec-
tation of finality on his sentence for count II.” Id.

	        Defendant argues that Radmall is not relevant to
the facts of this case because Oregon’s sentencing system is
unlike the “unified term of imprisonment” system at issue
in that case. However, as we explained above, trial courts in
Oregon do have discretion to assemble package sentences.
Febuary, 361 Or at 562. Defendant does not convince us
that the Double Jeopardy Clause requires us to interpret
ORS 138.222(5)(b) to preclude resentencing on his UUW
convictions.

	       We conclude that ORS 138.222(5)(b) gave the sen-
tencing court in this case the authority to impose new sen-
tences on the counts that remained on remand, including
defendant’s UUW convictions.4

B.  Defendant’s Arguments under Pearce and Partain

	        We turn, next, to defendant’s arguments under
Pearce and Partain. In Pearce, the United States Supreme
Court held that due process requires that “vindictiveness
against a defendant for having successfully attacked his
first conviction must play no part in the sentence he receives
after a new trial.” 395 US at 725. And, “since the fear of such
vindictiveness may unconstitutionally deter a defendant’s
exercise of the right to appeal or collaterally attack his first
conviction, due process also requires that a defendant be
freed of apprehension of such a retaliatory motivation on
	4
       The existence of that authority does not mean that its exercise is immune
from challenge. For instance, in a case in which a defendant seeks to prove that
a sentencing court acted vindictively, the fact that, at the time of resentencing, a
sentence attributable to a certain crime already has been served may be relevant.
Cite as 361 Or 723 (2017)	735

the part of the sentencing judge.” Id. In order to “assure the
absence of such a motivation,” the Court articulated the fol-
lowing two prophylactic rules:
   “[W]henever a judge imposes a more severe sentence
   upon a defendant after a new trial, the reasons for his
   doing so must affirmatively appear. Those reasons must
   be based upon objective information concerning identifi-
   able conduct on the part of the defendant occurring after
   the time of the original sentencing proceeding. And the
   factual data upon which the increased sentence is based
   must be made part of the record, so that the constitu-
   tional legitimacy of the increased sentence may be fully
   reviewed on appeal.”
Id. at 726.
	In Partain, this court overruled its prior decision
in State v. Turner, 247 Or 301, 313, 429 P2d 565 (1967).
Partain, 349 Or at 23. In Turner, this court held that “[a]fter
an appeal or post-conviction proceeding has resulted in the
ordering of a retrial for errors other than an erroneous sen-
tence, * * * and the defendant has again been convicted, no
harsher sentence can be given than that initially imposed.”
247 Or at 313. The Turner court acknowledged that circum-
stances might arise in which a judge, on remand, would be
justified in imposing a more severe sentence. Id. Even so, the
court concluded that “permitting a harsher sentence under
such circumstances raises difficulties in judicial administra-
tion. It would require a court reviewing the propriety of the
second sentence to make a subjective determination whether
the new information justified and was in fact the motive for
the more severe sentence.” Id. at 314. Consequently, the court
determined that “the argument for efficient judicial admin-
istration outweighs the possible advantages of permitting
more severe sentences upon the basis of new information.”
Id. at 315.
 	       In Partain, the court concluded that Turner “rested
on an unexamined elaboration on the right of appeal guar-
anteed by ORS 138.020—i.e., that the right of appeal neces-
sarily includes the right to have the length of any resentence
limited to the length of the sentence originally imposed.”
349 Or at 21. The court explained that changes in the law
736	                                                        State v. Sierra

pertaining to criminal sentencing and appeals since Turner
was decided made clear that Turner’s “expansive reading of
the right to appeal” was not viable. 349 Or at 22.
	        Despite overruling Turner, the court recognized
“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 considering how Oregon courts should approach claims
of vindictiveness in sentencing, post-Turner, the court found
no obvious answer in the Oregon Constitution and deter-
mined that the federal Due Process Clause provides the rel-
evant source of law. Id. at 23-24. Taking its cue from the
United States Supreme Court’s decision in Pearce, the court
announced the following rules:
   “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.”
Id. at 25-26.
	        Thus, as understood and articulated by this court in
Partain, due process requires, first, that a judge who resen-
tences a defendant to a more severe sentence than the one
originally imposed make a record of the reasons for doing
so. Id. Second, those reasons (1) must be based on identi-
fied facts of which the first sentencing judge was unaware,
and (2) must satisfy a reviewing court that the length of the
sentence imposed is not a product of vindictiveness. Id. If
those requirements are not met, the increased sentence is
presumed vindictive. Id. at 26.5

	5
       We need not decide whether this court’s statement in Partain differs from
the Supreme Court’s articulation in Pearce because we conclude that a different
standard applies in this case, where a second judge resentenced defendant on
remand.
Cite as 361 Or 723 (2017)	737

     1.  State’s argument that the Pearce/Partain require-
         ments do not apply
	        Before we consider whether those requirements
were met in this case, we take up the state’s preliminary
argument that they do not apply at all. Relying on cases
decided by the United States Supreme Court after Pearce,
the state argues that the Pearce/Partain requirements do
not apply, as a categorical matter, where, as here, a different
judge resentences the defendant on remand.6 Defendant, for
his part, argues that the fact that a second judge from the
same court sentences a defendant is not sufficient to remove
the reasonable risk of vindictiveness caused by institu-
tional bias. According to defendant, a blanket exception to
the Pearce/Partain rule for sentences imposed by different
judges would permit actual vindictiveness to play a part in
sentencing by precluding the application of the presump-
tion in cases where there remains a reasonable likelihood of
vindictiveness.
	        The Supreme Court has not explicitly decided that
issue. In Pearce, a different judge resentenced the defendant
on remand, but, in a later case, the Court dismissed that
fact as irrelevant, concluding that it had not been drawn to
the Court’s attention, and “declin[ed] to read Pearce as gov-
erning the issue.” Texas v. McCullough, 475 US 134, 140 n 3,
106 S Ct 976, 89 L Ed 2d 104 (1986). Thus, we must glean
what we can about how the Supreme Court would decide the
issue from the Court’s reasoning in Pearce and its progeny.7
	       The case of Chaffin v. Stynchcombe, 412 US 17, 25,
93 S Ct 1977, 36 L Ed 2d 714 (1973), provides a good starting
	6
       The state acknowledges that it did not raise, before the sentencing court
or the Court of Appeals, the argument that the presumption of vindictiveness
does not apply where the resentencing is done by a different judge than the one
who imposed the original sentence. However, we agree with the state that that
argument is a permissible alternative basis on which this court may affirm the
judgment. See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634,
659-60, 20 P3d 180 (2001). The issue presented is one of law, and the factual
record could not have developed differently had the state raised the issue earlier
in the proceedings. Id.
	7
       As we noted in Partain, “[t]his court could, of course, announce additional
requirements under our own constitution or pursuant to statute,” 349 Or at
25; however, we found, in that case, no obvious basis for doing so in the Oregon
Constitution or state statutory law, and defendant does not posit a source here.
738	                                                 State v. Sierra

point because it helpfully explains the Supreme Court’s
decision in Pearce as establishing two related, prophylactic
rules: (1) that, after a new trial, the reasons for a more severe
sentence “must affirmatively appear”; and (2) that those
reasons “must be based upon ‘objective information concern-
ing identifiable conduct on the part of the defendant occur-
ring after the time of the original sentencing proceeding.’ ”
(Quoting Pearce, 395 US at 726.) In Chaffin, the Court said:
   “In Pearce it was held that vindictiveness, manifesting
   itself in the form of increased sentences upon conviction
   after retrial, can have no place in the resentencing process.
   Under our constitutional system it would be impermissible
   for the sentencing authority to mete out higher sentences on
   retrial as punishment for those who successfully exercised
   their right to appeal, or to attack collaterally their convic-
   tion. Those actually subjected to harsher resentencing as
   a consequence of such motivation would be most directly
   injured, but the wrong would extend as well to those who
   elect not to exercise their rights of appeal because of a legit-
   imate fear of retaliation. Thus, the Court held that funda-
   mental notions of fairness embodied within the concept of
   due process required that convicted defendants be ‘freed of
   apprehension of such a retaliatory motivation.’ [Pearce, 395
   US at 725]. To that end, the Court concluded that ‘when-
   ever a judge imposes a more severe sentence upon a defen-
   dant after a new trial, the reasons for his doing so must
   affirmatively appear.’ Id. [at 726]. And, as a further pro-
   phylaxis, it was stated that those reasons must be based
   upon ‘objective information concerning identifiable conduct
   on the part of the defendant occurring after the time of the
   original sentencing proceeding.’ [Id.]”

412 US at 24-25 (footnotes omitted).

	        The Court then went on to consider whether to
apply Pearce in the circumstance presented—the circum-
stance in which, by state design, juries, rather than judges,
impose sentence. 412 US at 26-28. The Court reasoned that,
as long as “improper and prejudicial information regarding
the prior sentence is withheld” from the second jury, there
is no basis for holding that jury resentencing poses any real
threat of vindictiveness, and concluded that Pearce did not
apply. Id. at 28.
Cite as 361 Or 723 (2017)	739

	        Before the Court decided Chaffin, it also had con-
sidered whether the Pearce rules were applicable in the con-
text of a two-tier system in which a defendant is entitled to
a trial de novo in a superior court. Colten v. Kentucky, 407
US 104, 92 S Ct 1953, 32 L Ed 2d 584 (1972). In Chaffin,
the Court explained why it had decided, in Colten, that the
Pearce requirements did not apply:
    “While noting that ‘[i]t may often be that the [de novo
    ‘appeal’ court] will impose a punishment more severe than
    that received from the inferior court,’ [Colten, 407 US at
    117], we were shown nothing to persuade us that ‘the haz-
    ard of being penalized for seeking a new trial, which under-
    lay the holding of Pearce, also inheres in the de novo trial
    arrangement.’ Id. [at 116] (emphasis supplied). In short,
    the Due Process Clause was not violated because the ‘possi-
    bility of vindictiveness’ was not found to inhere in the two-
    tier system. [Id.]”
412 US at 26 (emphasis in original). Thus, in both Chaffin
and Colten, the Court considered the constitutionality of
state procedures that eliminate the possibility of vindictive-
ness and held that, in that context, neither a statement of
the reasons for the imposition of a more severe sentence nor
a presumption of vindictiveness are required.
	         Two other cases that the Supreme Court decided
after Pearce are more on point—Alabama v. Smith, 490 US
794, 109 S Ct 2201, 104 L Ed 2d 865 (1989), and McCullough,
475 US at 134. In both of those cases, the same judge
imposed a more severe sentence after originally imposing a
less severe sanction. Smith, 490 US at 796-97; McCullough,
475 US at 135-36. And in both of those cases, the judge, on
retrial, provided reasons for the imposition of the more severe
sentence. Smith, 490 US at 797; McCullough, 475 US at 136.
	In Smith, the trial court imposed the original sen-
tence after the defendant’s guilty plea. On remand, the same
court conducted a full trial and imposed a harsher sentence
because it had learned new information about the defen-
dant’s crimes. Smith, 490 US at 796-97. The Supreme Court
described that new information in detail:
    “The trial court explained that it was imposing a harsher
    sentence than it had imposed following respondent’s guilty
740	                                                 State v. Sierra

   plea 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. * * * As the court explained, at the time
   it imposed sentence on the guilty plea, it had heard only
   ‘[respondent’s] side of the story’; whereas now, it ‘has had
   a trial and heard all of the evidence,’ including testimony
   that respondent had raped the victim at least five times,
   forced her to engage in oral sex with him, and threatened
   her life with a knife. [Id.] The court stated that this new
   information about the nature of respondent’s crimes and
   their impact on the victim, together with its observations
   of his ‘mental outlook on [the offenses] and [his] position
   during the trial,’ convinced it that it was ‘proper to increase
   the sentence beyond that which was given to [him] on the
   plea bargain.’ Id. [at 30.]”
Id. In McCullough, the judge explained that, on retrial, she
had heard evidence from two witnesses who had not testi-
fied at the original trial and that she had imposed a more
severe sentence based on that new, significant evidence. 475
US at 136.
	        In both Smith and McCullough, the Court upheld
the more severe sentences against Pearce challenges. In
Smith, the Court distinguished the facts of that case from
Pearce, explaining that
   “in the course of the proof at trial the judge may gather a
   fuller appreciation of the nature and extent of the crimes
   charged. The defendant’s conduct during trial may give the
   judge insights into his moral character and suitability for
   rehabilitation. * * * Finally, after trial, the factors that may
   have indicated leniency as consideration for the guilty plea
   are no longer present.”
490 US at 801. In McCullough, the Court gave two reasons
for its decision. First, the court noted that the trial judge
had not been overruled by a higher court. McCullough, 475
US at 138. The “second trial came about because the trial
judge herself concluded that the prosecutor’s misconduct
required it.” Id. Second, the Court said, the trial judge had
provided “an on-the-record, wholly logical, nonvindictive
reason for the sentence.” Id. at 140. In the Court’s words, it
“read Pearce to require no more.” Id.
Cite as 361 Or 723 (2017)	741

	        We read the Supreme Court cases decided since
Pearce as demonstrating that the application of the two pro-
phylactic rules adopted in Pearce will depend on the partic-
ular circumstances presented. In each case, the Court has
looked, and we think will continue to look, to the partic-
ular circumstances presented to determine whether there
is an apparent need to “guard against vindictiveness in
the resentencing process.” Chaffin, 412 US at 25 (empha-
sis omitted); McCullough, 475 US at 138 (internal quotation
marks omitted). Thus, in circumstances such as those pre-
sented in Chaffin and Colten, the risk of vindictiveness is
low; the second sentencer will not be required to articulate
the reasons for a more severe sentence, and a failure to do
so will not give rise to a presumption of vindictiveness. In
other circumstances, such as those presented in Smith and
McCullough, where the judge, on remand, articulates the
reasons for a more severe sentence, the Court will not pre-
sume vindictiveness as long as those reasons are “wholly
logical” and “nonvindictive.”8 McCullough, 475 US at 140.

	       We are cognizant that the Supreme Court’s post-
Pearce cases can be read more broadly to indicate an intent
to dispense with the requirement that a judge who imposes
a second, harsher sentence must articulate its reasons for
doing so, and that some lower courts seem to read them in
that way. See, e.g., Gonzales v. Wolfe, 290 Fed Appx 799, 813
(6th Cir 2008) (holding that, although no reason for more
severe sentence stated, no presumption of vindictiveness
because different judge resentenced defendant).9

	8
        We note that the Court’s use of the phrase “presumption of vindictiveness”
is somewhat confusing. A “presumption” traditionally shifts the burden of proof
of production or persuasion to the opposing party, who is then invited to overcome
it. See Black’s Law Dictionary 1376 (10th ed 2014) (so defining the word “presump-
tion”). If operating in that fashion, a trial court’s failure to give reasons for a more
severe sentence would give rise to a presumption of vindictiveness that the trial
court could rebut by providing sufficient nonvindictive reasons for the sentence.
When the Court has discussed the “presumption of vindictiveness,” however, it
has said that the presumption does not apply when a trial court first offers a non-
vindictive reason for the sentence imposed. See, e.g., McCullough, 475 US at 140
(explaining that no presumption when judge provides an “on-the-record, wholly
logical, nonvindictive reason for the sentence”).
	9
        For a discussion of the dangers of the Supreme Court’s erosion of the Pearce
rule, see Stephen G. Murphy, Jr., Limits on Enhanced Sentences Following Appeal
and Retrial: Has Pearce Been Pierced?, 19 Conn L Rev 973, 988-95 (1986-87).
742	                                             State v. Sierra

	        However, many other federal courts read the cases
as we do. For instance, in Macomber v. Hannigan, 15 F3d
155, 157 (10th Cir 1994), the Tenth Circuit held that the
presumption of vindictiveness does not apply when a differ-
ent judge resentences a defendant and the judge satisfies
the added condition, articulated in McCullough, 475 US at
140, that the judge “provides an on-the-record, wholly logi-
cal, nonvindictive reason for the sentence.” See also United
States v. Anderson, 440 F3d 1013, 1016 (8th Cir 2006) (hold-
ing no presumption of vindictiveness when different judge
imposes more severe sentence and record contains nonvin-
dictive reasons for more severe sentence); United States v.
Newman, 6 F3d 623, 630 (9th Cir 1993) (“when a second
sentencing judge provides an ‘on-the-record, wholly logical,
nonvindictive reason for the sentence,’ the requirements of
Pearce are met”); Rock v. Zimmerman, 959 F2d 1237, 1257
(3rd Cir 1992), overruled on other grounds by Kontakis v.
Beyer, 19 F3d 110 (3rd Cir 1994) (holding Pearce presump-
tion does not apply where second sentence imposed by dif-
ferent sentencer and record provides “affirmative assurance
that the harsher sentence reflects simply a fresh look at the
facts and an independent exercise of discretion”).
	        Other courts that have not explicitly held that the
second judge must satisfy the “added-condition” requirement
nevertheless have noted that the judge, on remand, articu-
lated reasons for the increased sentence. See United States
v. Rodriguez, 602 F3d 346, 359 (5th Cir 2010) (stating that
second judge provided “more than sufficient reasons for
the greater sentence”); United States v. Clark, 84 F3d 506,
508 (1st Cir 1996) (stating “second trial judge heard all of
the sentencing evidence anew and made findings adequate
to support the sentence imposed”); United States v. Cheek,
3 F3d 1057, 1064 (7th Cir 1993) (stating second judge “identi-
fied two aggravating facts that arose subsequent to [the defen-
dant’s] original trial, justifying the higher sentence”); United
States v. Perez, 904 F2d 142, 147 (2nd Cir 1990) (stating sec-
ond judge based sentencing on “proper, non-vindictive reasons
for the sentence imposed”—the defendant’s “greed, her lack of
remorse, the fact that she played a major role in the drug con-
spiracy, and the fact that, although never an addict herself, she
had immersed herself and her son in the business of drugs”).
Cite as 361 Or 723 (2017)	743

	In Pearce, the Court recognized that due process
requires that courts refrain from vindictiveness in sen-
tencing, and that defendants be freed of the apprehension
of vindictiveness. The fact that a different judge imposes
an increased sentence does not eliminate those concerns or
the possibility that “institutional prejudices might infect a
trial judge’s resentencing of a defendant after a successful
appeal.” McCullough, 475 US at 150. Although a jury with-
out knowledge of a prior sentence is “unlikely to be sensitive
to the institutional interests that might occasion higher sen-
tences by a judge desirous of discouraging what he regards
as meritless appeals,” Chaffin, 412 US at 27, another judge
operating within the same system as the original judge
likely will have that knowledge and understandably could
be sensitive to those interests. Thus, we decline to adopt a
categorical rule that a difference in judges makes the first
prophylactic rule adopted in Pearce inapplicable. We will not
depart from our conclusion in Partain, that “[i]f an Oregon
trial judge believes that an offender whom the judge is about
to resentence should receive a more severe sentence than
the one originally imposed, the judge’s reasons must affir-
matively appear on the record.” 349 Or at 25-26.
	        We reach a different conclusion, however, as to the
second prophylactic rule imposed in Pearce. In Pearce, the
Court said that, to avoid a presumption of vindictiveness,
the judge, on remand, must give reasons based only “upon
objective information concerning identifiable conduct on
the part of the defendant occurring after the time of the
original sentencing proceeding.” Pearce, 395 US at 726.
However, in McCullough, the Court clarified that that was
only one way in which the state could demonstrate a lack of
vindictiveness:
   “Nothing in Pearce is to be read as precluding a rebuttal of
   intimations of vindictiveness. As we have explained, Pearce
   permits ‘a sentencing authority [to] justify an increased
   sentence by affirmatively identifying relevant conduct or
   events that occurred subsequent to the original sentencing
   proceedings.’ [Wasman v. U.S., 468 US 559, 572, 104 S Ct
   3217, 82 L Ed 2d 424 (1984)] (Powell, J., concurring in
   part and concurring in judgment). This language, how-
   ever, was never intended to describe exhaustively all of the
744	                                                      State v. Sierra

   possible circumstances in which a sentence increase could
   be justified.”
McCullough, 475 US at 141. In McCullough, even though the
same judge who imposed the original sentence later imposed
a more severe sentence, the Supreme Court held that that
sentence met the Pearce requirements because the judge
supported it with “wholly logical, nonvindictive reason[s].”
Id. at 140. We think that the Supreme Court would follow
the same analysis in circumstances in which a different
judge considers the facts presented on remand. When two
different judges assess the facts of a particular case, those
two different individuals reasonably may reach different
conclusions about the appropriate punishment. The same
may be true when one judge assesses the case during an
original trial, and the other assesses it later, on remand. As
long as the second judge gives a “wholly logical, nonvindic-
tive reason” for the more severe sentence, we conclude that
the second Pearce requirement has been met. The same,
therefore, goes for the Partain requirements.10
       2.  Application of Pearce/Partain in this case
	         The first step in a Pearce/Partain vindictiveness
analysis is to determine whether the sentence on remand
was more severe than the sentence originally imposed. A
sentence is “more severe” for Pearce/Partain purposes when
“the total length of the second sentence exceeds that of the
first.” Febuary, 361 Or at 563. Here, the total length of defen-
dant’s second sentence—276 months—exceeds the length of
his first sentence—250 months—and therefore qualifies as
a “more severe” sentence.
	        The next step, in this circumstance, is to deter-
mine whether the court on remand articulated a “wholly
logical, nonvindictive reason” for the more severe sentence.
Although the state did not seek departure sentences in
defendant’s original prosecution, it did so on remand.11 On
	10
       We note that, even when the presumption of vindictivess does not apply,
a defendant always may demonstrate a due process violation by “affirmatively
prov[ing] actual vindictiveness.” Febuary, 361 Or at 558 (quoting Wasman v.
United States, 468 US 559, 569, 104 S Ct 3217, 82 L Ed 2d 424 (1984)).
	11
      As noted, defendant objected to the new allegations, but the trial court
permitted them and defendant does not raise that issue in this court.
Cite as 361 Or 723 (2017)	745

remand, the state alleged and tried four enhancement fac-
tors to the jury on the first-degree kidnapping conviction.
The jury unanimously found that the state had proved each
of the four factors. In imposing sentence, the court stated
that it “would impose an upward durational departure
based on the jury’s findings.” The court also gave reasons
for the increased sentence in Partain terms; it referred to
other information available on resentencing that it consid-
ered unknown to the original court. We need not consider
whether that information alone would meet the Pearce/
Partain requirements. The fact that the state alleged, and
the jury found, four significant enhancement factors that
had not been alleged or found during the original trial is
a “wholly logical, nonvindictive reason” for the increased
sentence, and that reason appears in the record. We con-
clude that the sentencing judge’s reasons for the more severe
sentence were sufficient to comply with the requirements of
Pearce and Partain.
	       The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.
