BLAKE v. THE STATE, 272 Ga. App. 402

Adams, Judge. On a prior appeal, this Court vacated a kidnapping count against Melvin Blake and remanded the case for resentencing. Blake v. State, 264 Ga. App. 782 (592 SE2d 437) (2003). Blake now appeals his revised sentence. ADeKalb County grand jury returned an eight-count indictment against Blake arising out of a car accident that left the victim severely injured and paralyzed.

Blake pleaded guilty to all counts and was sentenced as follows: Count 8 (kidnapping) — twenty years, to serve ten in prison; Count 1 (serious injury by vehicle) — five years probation consecutive to Count 8; Counts 2 & 3 (merged with Count 1); and Counts 4-7 (misdemeanors) — 12 months each, to serve concurrent to Count 8. All tolled, Blake was sentenced to twenty-five years, ten years to serve in prison and fifteen on probation.

Blake subsequently filed a motion to withdraw his guilty plea as to the kidnapping charge on the ground that venue was not proper, a ground to which the State stipulated, and that he would not have pleaded guilty to that charge in DeKalb County if his counsel had properly advised him. The trial court refused to allow Blake to withdraw the kidnapping plea in isolation and denied the motion. On appeal, this Court vacated the kidnapping conviction (Count 8) for lack of venue and remanded the case for resentencing “on the remaining counts.” See Blake, 264 Ga. App. at 782.

Upon remand, the trial court sentenced Blake as follows: Count 1 (serious injury by vehicle) •— five years to serve in prison; Counts 2 & 3 merge with Count 1; Count 4 — 12 months on probation consecutive to Count 1; Count 5 — 12 months on probation consecutive to Count 4; Count 6 — 12 months on probation consecutive to Count 5; and Count 7 — 12 months probation consecutive to Count 6. All tolled, Blake was sentenced to nine years with five to serve and four on probation.

In the order, the judge indicated (1) that in both his original and revised sentences he exercised his discretion in fashioning “a single sentencing scheme” in an effort to punish Blake for the victim’s severe injuries, (2) that the criminal acts were all part of a single criminal event involving a single victim, and (3) that the new sentence “is not intended to penalize the defendant in any way for exercising his right to appeal.” 1.

Blake contends that the trial court was not permitted to change his sentence for serious injury by vehicle from five years probation to five years in prison without a reason, because to do so raises a presumption of unconstitutional vindictiveness on the part of the trial judge under North Carolina v. Pearce, 395 U. S. 711 (89 SC 2072, 23 LE2d 656) (1969). Pearce established that “[tjhere is no absolute constitutional bar to imposing a more severe sentence upon resentencing, but vindictiveness must not be the motivating force behind the increased sentence.” Anthony v.

Hopper, 235 Ga. 336, 337 (1) (219 SE2d 413) (1975), citing Pearce. Accordingly, if a judge plans to impose a more severe penalty upon resentencing, the record must affirmatively show “objective information justifying the increased sentence.” (Citations and punctuation omitted.) Texas v. McCullough, 475 U. S. 134, 142 (106 SC 976, 89 LE2d 104) (1986). The first question to be answered is whether Blake’s sentence was, in fact, increased, because the Pearce presumption applies only when a judge “imposes a more severe sentence” on resentencing. Wasman v. United States, 468 U.

S. 559, 565 (104 SC 3217, 82 LE2d 424) (1984). The answer in this case turns on whether severity of the new sentence is judged on a count-by-count basis or in the aggregate on all counts. In Anthony, the Supreme Court of Georgia held that even though Anthony’s new sentence was the same as the aggregate of his original sentence on multiple counts, where the sentence for an individual count had increased from five years to serve to eight years to serve, his sentence had been increased for the purpose of Pearce. Anthony, 235 Ga. at 337 (1).

Accordingly, under Anthony, we look to the individual counts to answer the question. Under that analysis, we must determine whether resentencing Blake on Count 1 from five years on probation to five years in prison constitutes an increased or more severe sentence. The case of Edge v. State, 194 Ga. App. 466 (391 SE2d 18) (1990), is instructive. In Edge, the defendant pleaded guilty to burglary and was sentenced to 20 years probation.

After he began to serve the sentence, the trial court resentenced the defendant to twenty years, three to serve and seventeen years on probation because the probation detention center had refused to accept him. Id. at 467. On appeal, this Court applied the rule that once the defendant began serving his sentence, the trial court did not have the authority to increase the defendant’s sentence. Id. In so doing, the court necessarily held that the change from probation time to prison time constituted an increased sentence. Id. See also Inman v. State, 124 Ga.

App. 190, 192 (1) (183 SE2d 413) (1971) (whether change in sentence from two years probation to one year of confinement constituted an increase in punishment does not merit discussion). Cf. Thompson v. State, 154 Ga. App. 704 (269 SE2d 474) (1980) (implying that eliminating probationary aspects of original sentence constitutes a more severe sentence under Pearce). Based on the above authority, we hold that Blake received a more severe sentence on Count 1 when he was resentenced from five years on probation to five years in prison.

The State argues that under the reasoning of two cases from this Court, Blake did not receive a more severe sentence. See Duffey v. State, 222 Ga. App. 802 (476 SE2d 89) (1996); Alvarado v. State, 248 Ga. App. 810 (547 SE2d 616) (2001).

These two decisions involve multiple count indictments arising out of the same facts and circumstances where the trial court supposedly sentenced the defendant under a “comprehensive sentencing scheme.” These cases suggest that the Pearce presumption may not be applicable in such a case, where some subset of the counts are lost on appeal, so long as the aggregate sentence on all counts does not increase upon resentencing. But we find these decisions not applicable here.

In Duffey, the convictions and sentences on two of the five pertinent counts were vacated because they should have been merged with two counts that were greater offenses. Duffey, 222 Ga. App. at 803 (1). The two greater offenses “subsumed the acts of [the lesser offenses] as a matter of fact.” Id. The sentences on the two greater counts were also vacated “because they were dependent on (concurrent to) the vacated convictions and sentences for [the lesser offenses].” Id. The case was then remanded for resentencing.

Duffey later claimed that the Pearce presumption applied to his resentencing because his new sentences on the two greater offenses, although the same length as the original sentences, were to run consecutively rather than concurrently. We held that the distinction was not meaningful under the facts of the case. With regard to these four counts, the court was simply resentencing the defendant for the greater offenses rather than the lesser offenses for the exact same conduct against the same victim.

And the court did not increase the sentence on any individual count; rather it only changed some of the sentences from concurrent to consecutive. Accordingly, the Pearce presumption did not apply. Alvarado is similar. In that case, convictions and sentences on two of six counts arising out of the same conduct against the same victim were reversed because the State failed to present sufficient evidence to support them. Alvarado, 248 Ga. App. at 810.

When the trial court resentenced the defendant on the remaining counts, one of which had been merged with the vacated counts, the defendant received the same sentence in the aggregate as he had at the original sentencing. Id. The judge accomplished this by giving the defendant a sentence on the now unmerged count and by converting two twenty-year sentences on other counts, from concurrent to consecutive sentences. Id. at 810-811 (1). The Pearce presumption was held not to apply because the aggregate sentence had not been increased.

In both Duffey and Alvarado, the trial judge was resentencing the defendant for all of the crimes charged against the defendant arising out of the same facts and circumstances that were properly before that court. Accordingly, use of the aggregate sentence for the purpose of determining whether the Pearce presumption applies was deemed appropriate. In this case, Blake successfully argued that the trial court did not have jurisdiction over the kidnapping charge and that he would not have pleaded guilty to that charge if his counsel had properly advised him. Blake, 264 Ga. App. at 782.

Therefore this Court vacated the conviction and sentence on that charge. As Blake points out, he is still subject to being prosecuted for kidnapping in the proper venue. “The failure to establish venue does not bar re-trial in a court where venue is proper and proven.” (Citations and punctuation omitted.) Grier v. State, 275 Ga. 430, 431 (1) (569 SE2d 837) (2002). Accordingly, the judge in the present case is no longer presiding over all of the charges arising out of the same facts and circumstances. Another judge in another court could sentence Blake for the kidnapping charge.

We therefore find that the “sentencing-scheme” reasoning in Duffey and Alvarado is inapplicable. Finally, we are mindful that the Pearce requirements do not apply in every case where a convicted defendant receives a higher sentence on retrial. McCullough, 475 U. S. at 138. We also note that the United States Supreme Court has indicated that the application of the Pearce presumption should be limited to circumstances where its objectives are thought most efficaciously served.

Such circumstances are those 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. Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness. (Citations and punctuation omitted.) Alabama v. Smith, 490 U. S. 794, 799-800 (109 SC 2201, 104 LE2d 865) (1989). See also Chaffin v. Stynchcombe, 412 U.

S. 17, 25 (93 SC 1977, 36 LE2d 714) (1973) (the Pearce presumption was not designed to prevent the imposition of an increased sentence on retrial “for some valid reason associated with the need for flexibility and discretion in the sentencing process,” but was “premised on the apparent need to guard against vindictiveness in the resentencing process”) (emphasis in original).

Nevertheless, we hold that under the facts of this case, by converting Blake’s sentence on Count 1 from probation to time in prison, the judge gave Blake a more severe punishment for the purposes of Pearce, and that, therefore, the Pearce presumption of vindictiveness applies. 2. In the resentencing order, the trial court attempted to dispel the presumption of vindictiveness by stating that the new sentence was not intended to penalize the defendant for exercising his right to appeal.

But the court did not set forth objective information justifying the increased sentence, such as any new conduct by Blake, a change in circumstances, or any other reason as is required under Pearce. See Crudup v. State, 191 Ga. App. 551 (382 SE2d 391) (1989). Furthermore, the trial court stated in the resentencing hearing that “I am going to do what is consistent with my decision in not allowing him to withdraw the kidnapping plea in isolation.” This statement could be read to suggest that the trial court was punishing Blake for kidnapping even though the court had no venue over that matter.

The trial court was authorized to increase Blake’s sentence upon remand, but only upon a showing of objective information justifying the increased sentence. Therefore, the case is remanded for reconsideration of the sentence so that it conforms with the law established by Pearce and its progeny. Judgment reversed and case remanded with direction. Ruffin, C. J., concurs. Bernes, J., concurs and concurs specially. Compare Staley v. State, 233 Ga. App. 597, 599 (505 SE2d 491) (1998) (a change in the conditions of probation is not necessarily an increase in sentence).