State v. Hudson

• Decision Date: 23 September 2013
• Docket Number: No. S13G0311.,S13G0311.
• Citation: 293 Ga. 656,748 S.E.2d 910
• Parties: The STATE v. HUDSON.
• Court: Georgia Supreme Court

293 Ga. 656

748 S.E.2d 910

The STATE

v.HUDSON.

No. S13G0311.

Supreme Court of Georgia.

Sept. 23, 2013.

Lee Darragh, Dist. Atty., Lindsay Hunter Burton, Asst. Dist. Atty., Northeastern Circuit District Attorney's Office, for appellant.

Mark Andrew Begnaud, Atlanta, H. Bradford Morris, Jr., Office of the Public Defender, for appellee.

HUNSTEIN, Justice.

We granted certiorari in this criminal case to decide on the correct approach for determining whether a new sentence, imposed after the defendant's initial sentence has been vacated, constitutes a harsher sentence and thereby triggers a presumption of vindictiveness under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). More than three decades ago, this Court adopted what is known as the “count-by-count” approach. Anthony v. Hopper, 235 Ga. 336, 219 S.E.2d 413 (1975). However, the majority of federal and state appellate counts have now adopted the alternative “aggregate” approach. See Adams v. State, 287 Ga. 513(2), 696 S.E.2d 676 (2010) (three-Justice plurality, noting trend favoring aggregate approach and advocating its adoption). In light of the momentum supporting our adoption of the aggregate approach, we granted certiorari here to settle the issue. For the reasons set forth below, we now adopt the aggregate approach, and we overrule Anthony v. Hopper to the extent it requires application of the count-by-count approach. We therefore reverse the judgment of the Court of Appeals.

In North Carolina v. Pearce, supra, the United States Supreme Court held that due process prohibits trial courts from penalizing criminal defendants for undertaking successful post-trial challenges to their convictions or sentences. Specifically, the Court held, “vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” North Carolina v. Pearce, 395 U.S. at 725(II)(C), 89 S.Ct. 2072. Furthermore, the Court opined, “due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” (Footnote omitted.) Id. To prevent such fear of retaliation from deterring defendants in the exercise of their appeal rights, the Supreme Court held that vindictiveness will be presumed whenever a more severe sentence is imposed after a retrial or remand, and that to overcome this presumption, the reasons justifying the increased sentence must “affirmatively appear” and be based on “objective information” in the record regarding “identifiable conduct on the part of the defendant.” Id. at 726(II)(C), 89 S.Ct. 2072.

Since Pearce was decided, the Supreme Court has clarified and refined its Pearce jurisprudence. See Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); Texas v. McCullough, 475 U.S. 134, 138(II), 106 S.Ct. 976, 89 L.Ed.2d 104 (1986); Wasman v. United States, 468 U.S. 559(II), 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984); Chaffin v. Stynchcombe, 412 U.S. 17(II), 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973). However, nowhere in this jurisprudence has the Court prescribed a particular method for determining whether a subsequent sentence is in fact more severe than the first. This case presents us with the opportunity to reassess our approach to this issue.

The pertinent facts are not in dispute. Following a jury trial, Claude Wayne Hudson was convicted on one count of aggravated sexual battery and one count of child molestation. On the aggravated sexual battery count, Hudson was sentenced to life in prison, with 25 years in confinement and the remainder served on probation. On the child molestation count, Hudson was sentenced to 30 years in prison, with 10 years in confinement and the remainder probated. The sentences were to run concurrently. On appeal, the Court of Appeals, holding that the two convictions should have merged, vacated Hudson's sentences and remanded to the trial court for resentencing. Hudson v. State, 309 Ga.App. 580(2), 711 S.E.2d 95 (2011). On remand, the trial court resentenced Hudson on the child molestation count to a term of 30 years, with 25 years to be served in confinement and the remainder probated. Hudson appealed again, contending this sentence was more severe than his initial sentence and was thus presumed to have been motivated by trial court vindictiveness under Pearce.

As the Court of Appeals noted, whether or not Hudson's second sentence is deemed more severe than his first depends entirely on the method by which this assessment is made. Hudson v. State, 318 Ga.App. 54, 55, 733 S.E.2d 360 (2012) (“Hudson II ”).The “count-by-count” approach, which this Court utilized in Anthony v. Hopper, requires a court to consider each count individually, comparing the initial sentence for each count with the subsequent sentence for that count. Hudson II, 318 Ga.App. at 55, 733 S.E.2d 360. If the sentence for any one count increases, the subsequent sentence is deemed more severe and triggers the Pearce presumption. See Anthony v. Hopper, 235 Ga. at 337–338(1), 219 S.E.2d 413. Under the alternative “aggregate” approach, “a court must ‘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.’ ” (Citation omitted.) Hudson II, 318 Ga.App. at 55, 733 S.E.2d 360. The difference between the two approaches is illuminated in this case:

Under the aggregate approach, Hudson's new sentence was not more severe. That is, Hudson's initial sentence on both counts would have resulted in a total of 25 years in prison and probation for the remainder of his life. After the conviction for aggravated sexual battery was merged into the conviction for child molestation, he was resentenced to a total of twenty-five years in prison and five years on probation.

Under the count-by-count approach, however, Hudson's new sentence was more severe. Specifically, Hudson's initial sentence on the child molestation count would have resulted in ten years in prison and twenty years on probation. Hudson was resentenced on the same count for a total of twenty-five years in prison and five years on probation. Accordingly, although the probationary period of Hudson's sentence was less, his prison sentence was increased by 15 years.

Id. at 55–56, 733 S.E.2d 360. Thus, which approach is adopted is determinative of whether the Pearce presumption applies at all. The Court of Appeals concluded that it was bound under Anthony v. Hopper to utilize the count-by-count approach, thus triggering the Pearce presumption and leading to the reversal of the new sentence. Hudson II, 318 Ga.App. at 56–57, 733 S.E.2d 360.

In adhering to Anthony v. Hopper, the Court of Appeals acknowledged our recent opinion in Adams v. State, supra, in which three Justices of this Court expressed their view that the Court should disavow the count-by-count approach in favor of the aggregate approach. See Hudson II, 318 Ga.App. at 56, 733 S.E.2d 360. In Adams, a four-Justice majority of this Court held that the Pearce presumption did not apply because it was the trial court itself (rather than an appellate or a habeas court) that had ordered a new trial; in other words, the fact that the judge was willing to grant a new trial was sufficient to dispel any concern about that judge's vindictiveness towards the defendant. Adams, 287 Ga. at 516(1), 696 S.E.2d 676. In a separate division of the opinion, three of those four Justices also opined that the Court should follow the lead of the “vast majority of federal and state appellate courts” and adopt the aggregate approach. Id. at 516–520(2), 696 S.E.2d 676. The Adams plurality concluded that the aggregate approach better reflects the practical realities faced by trial judges making sentencing decisions on related counts of an indictment. Id. at 517(2), 696 S.E.2d 676. The plurality also noted that the purpose underlying the Pearce presumption—preventing the fear of sentencing judge vindictiveness from chilling defendants' exercise of their appeal rights—would not be served where the new sentence in the aggregate is the same or less severe than the initial sentence. Id. at 518(2), 696 S.E.2d 676.

In this case, unlike in Adams, we are unable to avoid choosing between the two approaches by relying on other grounds for deciding the case. With the issue squarely presented to us, we have reviewed the Pearce jurisprudence anew and paid heed to the Adams plurality as well as other jurists of this State who have urged this Court to adopt the aggregate approach. See Hudson II, 318 Ga.App. at 57–59, 733 S.E.2d 360 (Ray and Branch, JJ., concurring specially, urging this Court to “consider adopting some version of the aggregate approach”); Blake v. State, 272 Ga.App. 402, 408, 612 S.E.2d 589 (2005) (Bernes, J., concurring specially, opining that count-by-count approach “sweeps too broadly” and advocating adoption of aggregateapproach). We agree that the time has come to adopt the aggregate approach, for several reasons.

First, it is now clear beyond question that the evil Pearce sought to prevent was sentencing judge vindictiveness, not the mere imposition of an enhanced sentence on retrial or remand. See Adams, 287 Ga. at 515(1), 696 S.E.2d 676. This is apparent not only from the Supreme Court's unequivocal statements to this effect, see Texas v. McCullough, 475 U.S. at 138(II), 106 S.Ct. 976;Wasman v. United States, 468 U.S. at 568(II) (B), 104 S.Ct. 3217, but also from the numerous post-Pearce cases in which the Supreme Court has circumscribed Pearce 's reach. See, e.g., Alabama v. Smith, 490 U.S. at 801, 109 S.Ct. 2201( Pearce presumption does not apply where first sentence entered on guilty plea and subsequent sentence followed trial); Texas v. McCullough, 475 U.S. at 139–140(II), 106 S.Ct. 976( Pearce presumption does not apply where trial court itself grants new trial); Chaffin...