Adams v. The State

• Decision Date: 12 July 2010
• Docket Number: No. S09G1927.,S09G1927.
• Citation: 287 Ga. 513,696 S.E.2d 676
• Parties: ADAMSv.The STATE.
• Court: Georgia Supreme Court

287 Ga. 513

696 S.E.2d 676

ADAMSv.The STATE.

No. S09G1927.

Supreme Court of Georgia.

July 12, 2010.

Robert L. Persse, Statesboro, for appellant.

Daphne H. Jarriel, Asst. Dist. Atty., Richard A. Mallard, District Attorney, for appellee.

CARLEY, Presiding Justice.

After a jury trial, Appellant Tavins Lee Adams was found guilty of child molestation, aggravated child molestation, aggravated sodomy and enticing a child for indecent purposes. All crimes arose out of a single incident between Adams and a minor child while both were in a parked car. After the trial court merged the aggravated child molestation count into the aggravated sodomy count, Adams was initially sentenced to consecutive 20-year terms of imprisonment for child molestation, aggravated sodomy, and enticing a child for indecent purposes, totaling 60 years. Adams subsequently moved for a new trial, arguing that the separate convictions for child molestation and aggravated sodomy should have been merged during sentencing. The trial court granted the motion for new trial in part, ruling that the child molestation count merged into the conviction for aggravated sodomy. After a second sentencing hearing, Adams was sentenced to 30 years for aggravated sodomy and to a consecutive 20-year term for enticing a child for indecent purposes, resulting in an aggregate sentence of 50 years.

Adams appealed to the Court of Appeals contending, among other things, that the trial court impermissibly modified his sentence for aggravated sodomy because the new sentence of 30 years was more severe than the original sentence of 20 years. Adams v. State, 299 Ga.App. 39, 42(4), 681 S.E.2d 725 (2009). The Court of Appeals noted that “[p]ursuant to North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), a trial court is limited in its ability to increase a defendant's sentence upon resentencing.” Adams v. State, supra. However, in a whole court unanimous opinion, the Court of Appeals affirmed Adams' new sentence, holding that it was not more severe because the new aggregate sentence for all of his convictions was ten years fewer than the initial aggregate sentence. Adams v. State, supra at 43(4), 681 S.E.2d 725. Relying on Alabama v. Smith, 490 U.S. 794, 799-800, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), and Curry v. State, 248 Ga. 183, 186(4), 281 S.E.2d 604 (1981), the Court of Appeals also held that “because the trial court granted Adams' request to merge his conviction for child molestation, contrary to the request of the state, immediately prior to resentencing Adams, there is no reasonable likelihood that the sentence was the product of actual vindictiveness.” Adams v. State, supra.

1. We granted certiorari to consider the appropriate analysis for determining whether a trial court's resentencing of a defendant results in a more severe sentence under North Carolina v. Pearce, supra. In that case, the Supreme Court of the United States held that

[d]ue process of law ... 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.... [Therefore,] whenever a judge imposes a more

severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.

North Carolina v. Pearce, supra at 725-726(II)(C), 89 S.Ct. 2072. Thus, the Court created a presumption of vindictiveness whenever a more severe sentence is imposed after a new trial, “which may be overcome only by objective information in the record justifying the increased sentence.” United States v. Goodwin, 457 U.S. 368, 374(II), 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). The Supreme Court, however, in subsequent cases, has narrowed its holding in Pearce, stating that due process does not require an absolute bar on the increase of sentences after re-conviction or resentencing, but seeks only to prevent “increased sentences when that increase was motivated by vindictiveness on the part of the sentencing judge.” Texas v. McCullough, 475 U.S. 134, 137(II), 106 S.Ct. 976, 89 L.Ed.2d 104 (1986). The evil sought to be prevented was “vindictiveness of a sentencing judge ... rather than simply enlarged sentences after a new trial.” Texas v. McCullough, supra at 138(II), 106 S.Ct. 976.

In the present case, Adams, in a motion for new trial, requested the merger of the child molestation charge into the aggravated sodomy count for sentencing purposes. The trial court itself granted the merger request and ordered a new sentencing hearing, which resulted in the sentence now at issue. In Texas v. McCullough, supra, under similar facts, the Supreme Court of the United States held that the Pearce presumption was inapplicable. The Supreme Court stated that where the trial court itself concludes that an error has been made and grants a motion for new trial, there exists

no basis for a presumption of vindictiveness.... “(U)nlike the judge who has been reversed,” the trial judge here had “no motivation to engage in self-vindication.” [Cit.] ... In granting [the defendant's] new trial motion, [the trial court] went on record as agreeing that his “claims” had merit. Presuming vindictiveness on this basis alone would be tantamount to presuming that a judge will be vindictive towards a defendant merely because he seeks an acquittal.... The presumption of Pearce does not apply in situations where the possibility of vindictiveness is this speculative, particularly since the presumption may often “operate in the absence of any proof of an improper motive and thus ... block a legitimate response to criminal conduct,” [cit.].

Texas v. McCullough, supra at 138-139(II), 106 S.Ct. 976. The dissent claims that the Supreme Court held the Pearce presumption inapplicable in Texas v. McCullough, supra, not only because the trial judge herself ruled that an error had been made that warranted a new sentence but also because different sentencers were involved and there were nonvindictive reasons on the record. However, the Supreme Court clearly makes an initial holding of the inapplicability of the Pearce presumption based solely on the fact that the trial judge herself concluded that there was error. The Supreme Court states that this fact alone creates a situation “where the possibility of vindictiveness is [too] speculative” for the Pearce presumption to apply, and, in fact, “not even ‘apprehension of [vindictiveness] on the part of the sentencing judge’ [cit.], could be present in this case.” Texas v. McCullough, supra at 139(II), 106 S.Ct. 976. The Supreme Court did not discuss the different sentencers involved in the case or the nonvindictive reasons on the record until after this initial holding and prefaced the subsequent discussion by describing it as an additional reason that the Pearce presumption was inapplicable in the case. Texas v. McCullough, supra at 140(II), 106 S.Ct. 976. See also Rock v. Zimmerman, 959 F.2d 1237, 1257(VI) (3rd Cir.1992) (stating that the Supreme Court in Texas v. McCullough, supra, held the Pearce presumption inapplicable where the trial court itself granted the defendant's motion for new trial and also held that the fact that the case involved two different sentencers was “an alternative, independent basis for finding the Pearce presumption inapposite”), overruled on other grounds Kontakis v. Beyer, 19 F.3d 110, 116, fn. 9 (II)(C) (3rd Cir.1994). Therefore, as held by the Supreme Court, the Pearce presumption of vindictiveness is inapplicable where the trial court itself concludes that an error has been made that warrants a new sentence. See also Curry v. State, supra (holding that, where the trial judge, recognizing his own error, increased a defendant's sentence upon resentencing, “there is no suggestion of vindictiveness against the defendant for having exercised any legal right”).

In the present case, therefore, since the trial court itself ordered a new sentencing hearing upon a partial grant of the motion for new trial filed by Adams, the Pearce presumption is inapplicable. Compare Chambers v. State, 213 Ga.App. 414, 418(5), 444 S.E.2d 820 (1994) (distinguishing Texas v. McCullough, supra, where the new sentence “came about because the trial judge herself concluded that it was required”). Thus, the new sentence imposed on Adams is proper, and the judgment of the Court of Appeals is affirmed.

2. Although our holding above resolves the Pearce presumption analysis in the present case, we also address the question upon which we granted certiorari in this case, which was to consider the appropriate analysis for determining whether a trial court's resentencing of a defendant results in a more severe sentence under North Carolina v. Pearce, supra. Although the Supreme Court of the United States has not spoken on this issue, a number of federal and state appellate courts have addressed it and have developed several approaches to aid a trial court's determination. The vast majority of federal and state appellate courts that have addressed this issue have adopted the aggregate approach, which requires a court to “compare the total original sentence to the total sentence after resentencing. If the new sentence is greater than the original sentence, the new sentence is considered more severe.” United States v. Campbell, 106 F.3d 64, 68(I)(B) (5th Cir.1997). See also United States v. Pimienta-Redondo, 874 F.2d 9, 15-16(II)(B) (1st Cir.1989); Kelly v. Neubert, 898 F.2d 15, 18 (3rd Cir.1990); United States v. Gray, 852 F.2d 136, 138(I) (4th Cir.1988); United States v. Sullivan, 967 F.2d 370, 374(II)(B)(1) (10th Cir.1992); United States v. Mancari, 914 F.2d 1014, 1022(III) (7th Cir.1990); United States v. Bay, 820 F.2d 1511, 1514(II) (9th Cir.1987); Tice v. State, 475 So.2d 589, 590 (Ala.Crim.App.1984); People v. Hill, 185 Cal.App.3d 831, 230 Cal.Rptr. 109, 111 (1986); White v. State, 576 A.2d 1322, 1329(IV) (Del.1990); State v. Keefe, 573 A.2d 20, 22 (Me.1990); State v....