Pearce presumption in Oregon

2017See, 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.

2017Because 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 quotation omitted), the Supreme Court has “restricted application 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 Pearce presumption of vindictiveness.” (Internal quotation omitte

2017Furthermore, even with the attendant possibility 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).

2015The court first noted that the Pearce “requirement that any conduct on the part of the defendant that a court relies on to justify a longer sentence must have occurred ‘after the time of the original sentencing proceeding’ is no longer applicable.” Partain, 349 Or at 25 n 8 (quoting Texas v. McCullough, 475 US 134, 141-42 , 106 S Ct 976 , 89 L Ed 2d 104 (1986) (allowing judge to consider newly learned information about the defendant that involved acts committed by the defendant before first sentencing proceeding; stating that to do otherwise could lead to a “bizarre conclusion”)).

2017Goodwin, 457 US at 373 .

2015Those limitations appear to be at least partly due to the fact that the Pearce presumption “may operate in the absence of any proof of an improper motive and thus may block a legitimate response to criminal conduct!.]” Goodwin, 457 US at 373 .

2017Furthermore, even with the attendant possibility 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).

2015The Court has stated that, “[w]hile the Pearce opinion appeared on its face to announce a rule of sweeping dimension, our subsequent cases have made clear that its presumption of vindictiveness ‘do[es] not apply in every case where a convicted defendant receives a higher sentence on retrial.’” Alabama v. Smith, 490 US 794, 799 , 109 S Ct 2201 , 104 L Ed 2d 865 (1989) (quoting McCullough, 475 US at 138 ) (second brackets in Smith)-, see, e.g., Goodwin, 457 US at 384 (stating that “[t]he possibility that a prosecutor would respond to a defendant’s pretrial demand for a jury trial by bringing cha

2017Because 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 quotation omitted), the Supreme Court has “restricted application 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 Pearce presumption of vindictiveness.” (Internal quotation omitte

2017Because 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 quotation omitted), the Supreme Court has “restricted application 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 Pearce presumption of vindictiveness.” (Internal quotation omitte

2015Although in Partain the Oregon Supreme Court adopted the Pearce presumption of vindictiveness, so modified, the court did not expressly clarify the precise standard for measuring whether a new sentence triggers the presumption of vindictiveness — an issue that, since the issuance of Pearce , “has been the subject of some confusion.” United States v. Campbell, 106 F3d 64, 67 (5th Cir 1997).

2015Although in Partain the Oregon Supreme Court adopted the Pearce presumption of vindictiveness, so modified, the court did not expressly clarify the precise standard for measuring whether a new sentence triggers the presumption of vindictiveness — an issue that, since the issuance of Pearce , “has been the subject of some confusion.” United States v. Campbell, 106 F3d 64, 67 (5th Cir 1997).

2015The Court has stated that, “[w]hile the Pearce opinion appeared on its face to announce a rule of sweeping dimension, our subsequent cases have made clear that its presumption of vindictiveness ‘do[es] not apply in every case where a convicted defendant receives a higher sentence on retrial.’” Alabama v. Smith, 490 US 794, 799 , 109 S Ct 2201 , 104 L Ed 2d 865 (1989) (quoting McCullough, 475 US at 138 ) (second brackets in Smith)-, see, e.g., Goodwin, 457 US at 384 (stating that “[t]he possibility that a prosecutor would respond to a defendant’s pretrial demand for a jury trial by bringing cha

2015The Court has stated that, “[w]hile the Pearce opinion appeared on its face to announce a rule of sweeping dimension, our subsequent cases have made clear that its presumption of vindictiveness ‘do[es] not apply in every case where a convicted defendant receives a higher sentence on retrial.’” Alabama v. Smith, 490 US 794, 799 , 109 S Ct 2201 , 104 L Ed 2d 865 (1989) (quoting McCullough, 475 US at 138 ) (second brackets in Smith)-, see, e.g., Goodwin, 457 US at 384 (stating that “[t]he possibility that a prosecutor would respond to a defendant’s pretrial demand for a jury trial by bringing cha

2010As a result, by adopting the Pearce rule as the only test of the validity of a sentence on remand after a successful appeal, the majority requires reviewing courts to do just what the court in Turner sought to avoid; viz., deciding whether the case before them is one “in which there is a ‘reasonable likelihood’ that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.” Nulph v. Cook, 333 F3d 1052, 1057 (9th Cir 2003) (quoting Alabama v. Smith, 490 US at 799 ).

2010As a result, by adopting the Pearce rule as the only test of the validity of a sentence on remand after a successful appeal, the majority requires reviewing courts to do just what the court in Turner sought to avoid; viz., deciding whether the case before them is one “in which there is a ‘reasonable likelihood’ that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.” Nulph v. Cook, 333 F3d 1052, 1057 (9th Cir 2003) (quoting Alabama v. Smith, 490 US at 799 ).