State v. Brown , 193 Wash. 2d 280 ( 2019 )


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    I^te.—MAY 0 ? im                                                         SusanL Carlson
    Supreme Court Clerk
    CHIEFjusr^
    IN THE SUPREME COURT OF THE STATE OF WASHINGTON
    STATE OF WASHINGTON,
    No. 95734-7
    Respondent,
    V.                                              En Banc
    RONALD RICHARD BROWN,
    Petitioner.                   Filed     MAY Q 2 ?nifi
    J
    MADSEN,J.—Ronald Brown appeals an unpublished Court of Appeals decision
    affirming his exceptional sentence for two counts of first degree robbery and one count of
    first degree burglary. At his first sentencing hearing, the trial court decided not to impose
    an exceptional sentence on his original convictions. On appeal, four of his seven original
    convictions were vacated. Upon resentencing, the trial court exercised its discretion and
    imposed an exceptional sentence above the sentencing range for his remaining
    convictions. Brown argues that the decision to impose an exceptional sentence on
    remand was collaterally estopped, that the exceptional sentence is the result ofjudicial
    vindictiveness, and that the State's recommendation for an exceptional sentence is the
    No. 95734-7
    result of prosecutorial vindictiveness. We affirm the Court of Appeals decision and
    affirm Brown's sentence.
    FACTS
    In 2012, Brown was charged with two counts of first degree kidnapping, two
    counts of first degree robbery, one count of first degree burglary, and two counts of
    second degree assault, all with a firearm. Brown proceeded to jury trial. At the close of
    trial, the jury convicted Brown of all seven counts.
    At the sentencing hearing, the State recommended the high end ofthe sentencing
    range for Brown's convictions. The State noted that an exceptional sentence upward
    would be warranted based on Brown's high offender score but did not recommend an
    exceptional sentence at the original sentencing. The trial court also declined to impose an
    exceptional sentence, citing the victims' statements that their lives would have been in
    danger if not for Brown being present. The trial court ultimately sentenced Brown to the
    high end of the sentencing range, 638 months in prison.
    On appeal, the Court of Appeals reversed Brown's two kidnapping convictions on
    instructional error and his two assault convictions on double jeopardy grounds. The court
    then remanded for resentencing.
    On remand, the State elected to dismiss the two kidnapping charges without
    prejudice because ofthe time and effort involved in relocating the victims and
    codefendants, and the resources spent by the prosecution in retrying Brown. At the
    resentencing hearing, the State initially recommended a sentence of 351 months—
    reflecting the high end of the standard sentencing range. However, the State later
    No. 95734-7
    amended its recommendation to reimpose the original sentence as an exceptional
    sentence. The court declined to reimpose the original sentence but did impose an
    exceptional sentence of 399 months. At the resentencing hearing, the judge noted that he
    did not impose the exceptional sentence at the original sentencing because he felt the 638
    months was "legally appropriate and within the law." Verbatim Report of Proceedings,
    Resentencing & Mot. Hr'g(VRP Mot.)(June 21, 2016) at 34. The judge also noted that
    imposing the high end of the sentencing range with the remaining charges would give
    Brown a "free crime[],"justifying the imposition of an exceptional sentence. Id.
    However, the judge stopped short of imposing the original sentencing range.' Id.
    ANALYSIS
    Collateral Estoppel
    Brown first argues the trial court is collaterally estopped from imposing an
    exceptional sentence at the resentencing hearing when it chose not to impose one at the
    original sentencing hearing.
    For collateral estoppel to apply,(1)the issue in the prior adjudication must be
    identical to the issue currently presented for review,(2)the prior adjudication must be a
    final judgment on the merits,(3)the party against whom the doctrine is asserted must
    have been a party to or in privity with a party to the prior adjudication, and (4) barring the
    'The trial judge took into account that one of Brown's codefendants, Johnathan Frohs, accepted a
    plea deal and received his sentence during the interim. Although the trial judge never specified
    the length of Frohs' sentence, he did articulate that when he looked at "[Brown's] original
    sentence ... compared to what Mr. Frohs got... I think it's too far out of the lines of being
    reasonable." VRP Mot. at 34. Presumably, Frohs' guilty plea sentencing resulted in a shorter
    sentence than Brown's original sentence.
    No. 95734-7
    relitigation of the issue will not work an injustice on the opposing party. State v.
    Harrison, 
    148 Wn.2d 550
    , 561, 
    61 P.3d 1104
     (2003). Courts should not apply collateral
    estoppel hypertechnically but, rather, with realism and rationality. State v. Till, 
    148 Wn.2d 350
    , 361, 
    60 P.3d 1192
    (2003).
    Brown argues the issue in the prior adjudication is identical to the issue currently
    presented for review—whether to impose an exceptional sentence based on Brown's
    offender score. Suppl. Br. of Pet'r 6-7. Specifically, Brown argues because the judge
    chose not to impose an exceptional sentence at the initial sentencing despite being
    justified due to his offender score, collateral estoppel applies. Id. at 7.
    His argument is similar to the one made in Tili. In that ease, the defendant was
    initially sentenced to 417 months. 
    148 Wn.2d at 357
    . The trial court did not impose an
    exceptional sentence because it treated his offenses as separate and distinct conduct. 
    Id.
    However, the court indicated that if his ruling was reversed on appeal and the offenses
    should have been treated as the same criminal conduct, the court would impose the same
    sentence as an exceptional sentence. 
    Id.
     The original sentence was reversed, to be
    treated as same criminal conduct, and the trial court imposed the same 417 month
    sentence as an exceptional sentence. 
    Id.
    The defendant in Tili argued that the trial court was collaterally estopped from
    imposing an exceptional sentence on resentencing because it chose not to do so at the
    original sentencing hearing, /c/. at 361. This court was not persuaded. We noted that
    separate and distinct conduct for multiple offenses resulted in a fundamentally different
    sentence from same criminal conduct—the former resulting in consecutive sentences.
    No. 95734-7
    while the latter results in concurrent sentences. Id. at 362-63. Thus, the issue at
    resentencing was fundamentally different.
    Despite this, Brown attempts to distinguish Tili because, here, the only relevant
    change was the dismissal of four charges resulting in a lowered offender score. Suppl.
    Br. ofPet'r at 7. This is a distinction without effect. Under RCW 9.94A.535(2), a trial
    court may impose an aggravated exceptional sentence without a finding of fact by a jury
    under certain circumstances, one ofthem being that "[t]he defendant has committed
    multiple current offenses and the defendant's high offender score results in some of the
    current offenses going unpunished." RCW 9.94A.535(2)(c). To justify an exceptional
    sentence upward, a trial court must first calculate or otherwise determine the defendant's
    offender score, and based on that factor, the trial court has discretion to impose an
    exceptional sentence if it deems the defendant's sentence will result in "free crimes."
    Based on Brown's offender score in addition to the firearm enhancements.
    Brown's original sentence totaled 638 months. The trial court had a question before it at
    that time: Based on the defendant's high offender score, should it impose an exceptional
    sentence based on the current range? The court decided the sentence at the time was fair
    and opted not to impose an exceptional sentence. On appeal, based on the reversal of two
    convictions on the basis of double jeopardy and the State's decision not to retry two other
    convictions. Brown was left with three convictions. The question upon resentencing thus
    flindamentally changed: Was the newly computed sentencing range sufficient based on
    Brown's offender score? The trial court had a new offender score and a new sentencing
    range to consider when it decided to impose the exceptional sentence.
    No. 95734-7
    Finality under Collateral Estoppel
    Next, Brown argues that the issue of imposing the exceptional sentence was
    "final" for purposes of collateral estoppel. In support of this position, he cites to State v.
    Kilgore, 
    167 Wn.2d 28
    , 
    216 P.3d 393
     (2009), for the proposition that an unchallenged
    exceptional sentence on appeal is final and has preclusive effect on remand should any
    other portion ofthe judgment and sentence be reversed. Suppl. Br. of Pet'r at 9.
    In Kilgore, the trial court imposed an exceptional sentence of 560 months on seven
    counts. 
    167 Wn.2d at 32
    . On appeal, two counts were reversed and the other five
    affirmed. 
    Id.
     The trial court did not elect to resentence him and instead signed an order
    striking the two reversed counts and changing his offender score accordingly. 
    Id. at 34
    .
    We held that finality occurs when '"the availability of appeal'[has] been exhausted." 
    Id. at 43
     (emphasis omitted)(quoting In re Pers. Restraint ofSt. Pierre, 
    118 Wn.2d 321
    ,
    327, 
    823 P.2d 492
    (1992)). "[A] case has no remaining appealable issues where an
    appellate court issues a mandate reversing one or more counts and affirming the
    remaining count, and where the trial court exercises no discretion on remand as to the
    remaining final count." Id. at 37. We noted that "[ajlthough the trial court had discretion
    ... to revisit Kilgore's exceptional sentence on the remaining five convictions, ... it was
    not reconsidering the exceptional sentence imposed on each of the remaining counts." Id.
    at 41.
    Brown's reliance on Kilgore is misplaced. It does not stand for the proposition
    that all exceptional sentences are final when they are not appealed. Rather, when a trial
    court does not exercise its discretion on remanded issues, those issues become final for
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    purposes of reviewability. Here, because the trial court did exercise its discretion on
    remand to determine whether an exceptional sentence was appropriate, the issue became
    reviewable and is not "final."
    The Effect of Collicott
    Brown also argues that collateral estoppel applies based on State v. Collicott, 
    118 Wn.2d 649
    , 
    827 P.2d 263
     (1992). Brown asserts the lead opinion's discussion on
    collateral estoppel is applicable as it is factually analogous to the instant case.^ In
    Collicott, the trial court, in its original sentencing, could have imposed an exceptional
    sentence but did not. 
    Id. at 652
    . The defendant appealed, and the case was remanded to
    the trial court for resentencing. At the resentencing, the trial court learned that the
    defendant had a stayed charge pending until resolution of the case. 
    Id. at 653
    . The trial
    court imposed an exceptional sentence at rehearing based on deliberate cruelty. 
    Id. at 653-54
    . This court, in its lead opinion, reversed, holding that the defendant's offender
    score was not properly calculated and the trial court was collaterally estopped from
    imposing the exceptional sentence. It is the court's discussion that collateral estoppel
    applies to exceptional sentences that Brown relies on.
    But Brown's reliance on this is misguided. First, the collateral estoppel discussion
    did not command a majority of the court.^ As subsequent case law has held, the collateral
    ^ Brown also seeks clarification as to the weight that should be placed on the lead opinion in
    Collicott. The lead opinion in Collicott stated that the court should be collaterally estopped in
    imposing an exceptional sentence on resentencing.
    ^ Only four justices ofthis court. Justices Smith, Utter, and Dolliver, and Chief Justice Dore,
    subscribed to this holding. Five justices. Justices Durham, Andersen, Brachtenbach, and Guy,
    and Justice Pro Tem Callow, specifically disavowed the collateral estoppel holding as "go[ing]
    No. 95734-7
    !
    estoppel analysis is dicta and is not binding on this court. See Harrison, 
    148 Wn.2d 550
    ;
    Till, 
    148 Wn.2d 350
    . Second, the facts in Collicott are quite distinct from the instant
    case.
    In Collicott, the trial court imposed an exceptional sentence upon resentencing
    based on deliberate cruelty. 118 Wn.2d at 654. The trial court could have imposed an
    exceptional sentence based on deliberate cruelty at the initial sentencing but chose not to.
    Id. at 653. The lead opinion stated that collateral estoppel applied where the court could
    have imposed an exceptional sentence based on the same factor that it relied on at
    resentencing. Id. at 661.
    Brown argues that the same situation is presented here; the trial court could have
    imposed an exceptional sentence based on the "free crime" rule but chose not to,
    triggering collateral estoppel. But Brown overlooks another part of the lead opinion in
    Collicott in which the court suggested that a trial court may impose an exceptional
    standard based on the "clearly too lenient" standard(now the "free crime" rule) upon
    resentencing. Id. at 659-60.
    Judicial Vindictiveness
    Brown next argues that the exceptional sentence imposed by the trial court at the
    resentencing hearing is presumptively vindictive. Generally, a trial judge may impose a
    new sentence that is greater or less than the sentence originally imposed based on events
    subsequent to the first trial that may throw new light on the defendant's life, health.
    beyond what is necessary to resolve this case." Collicott, 118 Wn.2d at 670(Durham, J.,
    concurring).
    8
    No. 95734-7
    habits, conduct, and mental and moral propensities. North Carolina v. Pearce, 
    395 U.S. 711
    , 723, 
    89 S. Ct. 2072
    , 
    23 L. Ed. 2d 656
    (1969). But the "imposition of a penalty upon
    the defendant for having successfully pursued a statutory right of appeal or collateral
    remedy [is] a violation of due process of law." 
    Id. at 724
    . The Court in Fearce held that
    "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the
    reasons for ... doing so must affirmatively appear." 
    Id. at 726
    . Such reasons must be
    based on "objective information concerning identifiable conduct on the part of the
    defendant occurring after the time of the original sentencing proceeding." 
    Id.
    For years, Fearce seemed to stand for a sweeping rule that applied a presumption
    ofjudicial vindictiveness whenever a new sentence was harsher than the original sentence
    imposed. However,the scope of the rule set out in Fearce has been substantially
    narrowed over the years. In Alabama v. Smith, the defendant originally was sentenced
    based on a guilty plea. 
    490 U.S. 794
    , 795, 
    109 S. Ct. 2201
    , 
    104 L. Ed. 2d 865
     (1989).
    The defendant successfully had his guilty plea vacated, and the case proceeded to trial.
    
    Id.
     After the trial the defendant was convicted and resentenced, this time to a life
    sentence. 
    Id. at 796-97
    . The defendant argued there was a presumption of vindictiveness
    under Fearce. The Supreme Court disagreed, stating that "subsequent cases have made
    clear that [Fearce's] presumption of vindictiveness 'do[es] not apply in every case where
    a convicted defendant receives a higher sentence on retrial.'" 
    Id. at 799
     (second
    alteration in original)(quoting Texas v. McCullough, 
    475 U.S. 134
    , 138, 
    106 S. Ct. 976
    ,
    
    89 L. Ed. 2d 104
     (1986)). Rather, the presumption applies only in "[sjuch circumstances
    ... in which there is a 'reasonable likelihood' that the increase in sentence is the product
    No. 95734-7
    of actual vindictiveness on the part of the sentencing authority." 
    Id.
     (citation omitted)
    (quoting United States v. Goodwin,
    457 U.S. 368
    , 373, 
    102 S. Ct. 2485
    , 
    73 L. Ed. 2d 74
    (1982)). When there is no reasonable likelihood, the defendant must prove actual
    vindictiveness. Id. at 799-800. The Court later went on to hold that the presumption
    does not apply where a greater penalty is imposed after trial than was imposed after the
    guilty plea because "the judge may gather a fuller appreciation of the nature and extent of
    the crimes charged [at trial]." Id. at 801.
    The Supreme Court has since declined to apply the Pearce presumption in a
    number of cases. See, e.g., McCullough, 
    475 U.S. 134
     (holding the presumption does not
    apply where retrial that resulted in the harsher sentence was initiated because the trial
    judge herself concluded a new trial was warranted based on prosecutorial misconduct);
    Chaffin V. Stynchcombe, 
    412 U.S. 17
    , 
    93 S. Ct. 1977
    , 
    36 L. Ed. 2d 714
    (1973){Pearce
    presumption does not apply when new jury at retrial imposes a harsher penalty than the
    original jury); Colten v. Kentucky, 
    407 U.S. 104
    , 
    92 S. Ct. 1953
    , 
    32 L. Ed. 2d 584
    (1972)
    (presumption does not apply where de novo trial in general criminal jurisdiction courts
    imposes a harsher sentence than inferior court did at original sentence).
    Under Pearce, it appears the presumption of vindictiveness does not apply since
    the subsequent aggregate sentence was substantially lower than the original sentence.'^
    ^ The dissent argues we should apply the Pearce presumption because our Sentencing Reform
    Act of 1981(SKA)requires courts to consider only the "real facts" of the crimes at sentencing,
    RCW 9.94A.530(2), distinct from the federal sentencing guidelines, which allow courts to
    consider acquitted conduct. Dissent at 8 (citing 
    18 U.S.C. § 3661
    ). In essence, the dissent asserts
    that it was improper for the sentencing court to consider the facts and circumstances of the entire
    criminal transaction because some of those facts could support elements of the charges that were
    10
    No. 95734-7
    However, Brown points to federal circuit cases that consider the sentence imposed on
    each count, not the aggregate sentence. There are essentially two schools ofthought in
    determining whether the presumption applies—^whether we compare the overall length of
    the new sentence to the original sentence or whether we compare the remaining sentence
    once the dropped convictions are factored out to the new sentence.^ The overwhelming
    majority of federal circuits subscribe to the former analysis. See, e.g., United States v.
    Pimienta-Redondo, 
    874 F.2d 9
    (1st Cir. 1989)(presumption does not apply when one
    count is dropped and resentencing judge increases the sentence on remaining count so the
    overall sentence remains the same);® United States v. Nerius, 
    824 F.3d 29
    (3d Cir. 2016)
    {Pearce does not apply where the revised sentence is lower than that originally imposed);
    United States v. Gray, 
    852 F.2d 136
     (4th Cir. 1988)(no possibility or appearance of
    vindictiveness when the second sentence is shorter overall than the first sentence);^
    reversed on appeal. But the "real facts" doctrine does not require a trial court to wholly disregard
    facts simply because they may be used to support elements of crimes that were not charged.
    Rather,"[t]he SRA structures the sentencing decision to consider only the actual crime of which
    the defendant has been convicted, his or her criminal history, and the circumstances surrounding
    the crime." State v. Houf, 
    120 Wn.2d 327
    , 333, 
    841 P.2d 42
    (1992)(emphasis added).
    In any event, the "real facts" doctrine does not apply here. The trial court, after reviewing
    the new offender score, found that the standard sentencing range would clearly be too lenient and
    would result in "some of the current offenses going unpunished." RCW 9.94A.535(2)(c). An
    offender score above 9 warrants an exceptional sentence. Since Brown's adjusted offender score
    after the reversed convictions was 11, the trial court determined an exceptional sentence was
    warranted. The trial court's finding did not require an examination of the facts underlying the
    reversed convictions.
    ® Brown characterizes the two different approaches as the "total aggregate" approach and the
    "modified aggregate," or "aggregate remainder," approach, respectively, in his briefing. Suppl.
    Br. of Pet'r at 18.
    ® This reasoning was later affirmed in United States v. Dominguez, 
    951 F.2d 412
    (1st Cir. 1991).
    ^ Faced with essentially the same argument presented by Brown, the Fourth Circuit affirmed its
    adherence to the "total aggregate" approach in United States v. de Jesus Ventura, 
    864 F.3d 301
    (4th Cir. 2017).
    11
    No. 95734-7
    United States v. Cataldo, 
    832 F.2d 869
     (5th Cir. 1987)(no presumption when the judge
    sentences a defendant to the same sentence even though there are fewer remaining
    convictions); United States v. Rivera, 
    327 F.3d 612
    , 615 (7th Cir. 2003)("we compare
    the total original punishment to the total punishment after resentencing in determining
    whether the new sentence is more severe"); United States v. Horob, 
    735 F.3d 866
    , 870
    (9th Cir. 2013)("presumption of vindictiveness does not apply . . . because .. . the []
    court considered his overall sentence at the time of his original sentence and again on
    remand, and because his overall sentence was not increased"); United States v. Sullivan,
    
    967 F.2d 370
    (10th Cir. 1992).
    Brown advocates for the "aggregate remainder" approach taken by the Second and
    Eleventh Circuits in United States v. Markus, 
    603 F.2d 409
    (2d Cir. 1979), and United
    States V. Monaco, 
    702 F.2d 860
     (11th Cir. 1983). In Markus, the defendant was sentenced
    to a total of 15 years on seven counts. 
    603 F.2d at 411
    . On appeal, the judge vacated two
    counts '"reluctantly."' 
    Id.
     The government filed an additional charge, on which the court
    sentenced the defendant to 5 years. 
    Id.
     The defendant argued vindictiveness under the
    due process clause of the Fourteenth Amendment to the United States Constitution. The
    Court of Appeals held the appropriate analysis is to disregard the sentence originally
    imposed by the trial judge on the count dropped and then compare the total remaining
    sentence imposed to the current sentence. 
    Id. at 413
    . Since there was no evidence on the
    record to justify the increase, the court found there to be vindictiveness. 
    Id. at 414
    .
    Similarly, in Monaco, the Court of Appeals examined a sentence that remained the
    same after retrial, even though there were fewer counts. Monaco, 
    702 F.2d at 883
    . The
    12
    No. 95734-7
    court in Monaco also subscribed to the approach used in Markus. 
    Id. at 885
    . Since the
    trial court did not state any reasons for the increase, the court applied the Pearce
    presumption. 
    Id.
     However, more recently, the Eleventh Circuit discussed Monaco in
    United States v. Fowler, 
    749 F.3d 1010
     (11th Cir. 2014). In Fowler, the court effectively
    repudiated the "aggregate remainder" approach taken in Monaco, stating,''Monaco'^ pre-
    guidelines approach for gauging the severity of a new sentence relative to an old one—the
    aggregate remainder approach—is not binding in the post-guidelines era, which presents
    materially different circumstances than those involved in that case." Id. at 1018. That
    court went on further to say that "[w]hile we are obligated to follow the holdings of an
    earlier decision,'the holdings of a prior decision can reach only as far as the facts and
    circumstances presented to the court in the case which produced that decision.'" Id. at
    1020 {qaoXmg Anders v. Hometown Mortg. Servs., Inc., 
    346 F.3d 1024
    , 1031 (11th Cir.
    2003)). "Because Monaco arose and was decided before the sentencing guidelines
    existed, it could not, and did not purport to, decide what approach should be used to
    determine when the Pearce presumption applies to a new sentence imposed under the
    guidelines regime." 
    Id.
    Our court has never considered which approach to adopt in determining a Pearce
    presumption of vindictiveness. However, Division One of the Court of Appeals faced that
    issue in State v. Larson, 
    56 Wn. App. 323
    , 
    783 P.2d 1093
     (1989). In that case, the
    defendant's original sentence was for 363 months as a consecutive sentence. Id. at 325.
    After appeal, and upon resentencing, the trial court imposed a concurrent sentence of 360
    months. Id. at 326. The defendant raised a presumption of vindictiveness argument, and
    13
    No. 95734-7
    the Court of Appeals rejected it, stating the "revised aggregate sentence [was] less severe
    than his original aggregate sentence." Id. at 328.
    Similarly, Division Two, in State v. Ameline, addressed the Pearce presumption.
    
    118 Wn. App. 128
    , 
    75 P.3d 589
     (2003). In that case, the defendant was retried three
    times. The first conviction resulted in a sentence of 164 months. Id. at 130. After appeal,
    the second sentence resulted in a conviction, and the court reimposed the same 164 month
    sentence. Id. at 131. The defendant appealed a third time, this time on instructional error.
    The case was remanded for a third trial. After his third conviction, the trial court chose to
    impose an exceptional sentence of 240 months. Id. To justify it, the trial court made
    written findings of fact that could have been made at the other two trials. Id. The Court
    of Appeals found that because the third sentence was harsher than the previous two
    overall, the Pearce presumption applied. Id. at 133. The Court of Appeals also
    determined the presumption was not rebutted based on the justification the trial court
    made on record. Id. Division Three has not decided a case based on judicial
    vindictiveness.
    Given that the overwhelming majority of the federal circuits subscribe to the "total
    aggregate" approach and that Divisions One and Two also adopted the same, we hold the
    Pearce presumption does not arise when the total sentence upon resenteneing is not
    greater than the original sentence imposed.
    Prosecutorial Vindictiveness
    Finally, Brown argues that the State's request for an exceptional sentence on
    remand is presumptively vindictive. The due process clause is not offended by all
    14
    No. 95734-7
    possibilities of increased punishment upon retrial after appeal but only those that pose a
    realistic likelihood of vindictiveness. Blackledge v. Perry, 
    417 U.S. 21
    , 
    94 S. Ct. 2098
    ,
    40 L. Ed. 2d 628
    (1974). The Pearce presumption of vindictiveness was extended to the
    prosecutorial context in Blackledge. In that case, the defendant was charged with a
    misdemeanor assault in an altercation with another inmate while serving another term. 
    Id. at 22
    . After his conviction, he appealed, which under North Carolina law automatically
    warranted trial de novo. 
    Id.
     Prior to the trial, the State obtained a felony assault
    indictment that covered the same conduct as the misdemeanor assault. The defendant
    pleaded guilty to the felony assault charge. 
    Id. at 23
    . The defendant argued the Pearce
    presumption should apply in his case. 
    Id. at 25
    . The Court agreed and held that it was not
    constitutionally permissible for the State to respond to the defendant's appeal by bringing
    a more serious charge against him. 
    Id. at 28-29
    .
    The Pearce presumption does not apply to all cases where a prosecutor brings
    more serious charges. In Bordenkircher v. Hayes, the Supreme Court determined that the
    presumption does not apply in the pretrial context during plea negotiations when the
    prosecution threatens and executes additional charges when plea negotiations do not result
    in a guilty plea. 
    434 U.S. 357
    , 
    98 S. Ct. 663
    , 
    54 L. Ed. 2d 604
    (1978). The Court noted
    the violation "lay not in the possibility that a defendant might be deterred from the
    exercise of a legal right, but rather in the danger that the State might be retaliating against
    the accused for lawfully attacking his conviction." 
    Id. at 363
     (citations omitted). Thus,
    the presumption was inapplicable where there is a '"give-and-take negotiation common in
    plea bargaining between the prosecution and defense, which arguably possess relatively
    15
    No. 95734-7
    equal bargaining power.'" 
    Id. at 362
    (quoting Parker v. North Carolina, 
    397 U.S. 790
    ,
    809,
    90 S. Ct. 1458
    , 
    25 L. Ed. 2d 785
    (1970)(Brennan, J., dissenting)).
    Similarly, in Goodwin,the Supreme Court held that a presumption of
    vindictiveness was not warranted when a prosecutor brings a more severe charge after a
    defendant has demanded a jury trial. 
    457 U.S. 368
    . The Court noted,"[T]he mere fact
    that a defendant refuses to plead guilty and forces the government to prove its case is
    insufficient to warrant a presumption that subsequent changes in the charging decision are
    unjustified." M at 382-83.
    This court has decided the issue of prosecutorial vindictiveness in the pretrial
    context. See State v. Korum, 
    157 Wn.2d 614
    , 
    141 P.3d 13
     (2006)(plurality opinion).
    Similar to Goodwin and Bordenkircher,Korum involved guilty pleas. In that case, the
    prosecution threatened 32 additional charges if he did not plead guilty. Id. at 620-21.
    This court held that adding 15 counts did not constitute prosecutorial vindictiveness,
    finding the case was similar to Bordenkircher and Goodwin, where the defendants chose
    to walk away from plea negotiations. Id. at 635-36. Later, in State v. Gamble, 
    168 Wn.2d 161
    , 187, 
    225 P.3d 973
     (2010), this court noted that the Blackledge presumption was
    inapplicable where, as a result of case law, the conviction was necessarily vacated,
    requiring the prosecution to reevaluate what charges to bring against the defendant.
    Unlike cases where the prosecution chooses to add charges after a defendant
    exercises his right of appeal and succeeds, this case involves a sentencing
    recommendation. Courts should be cautious when expanding the scope of prophylactic
    rules. While it is possible that the prosecution decided to recommend the original
    16
    No. 95734-7
    sentence as an exceptional sentence out of spite, the presumption does not apply simply
    because there is an opportunity for vindictiveness. There must be a realistic likelihood of
    vindictiveness. Here, the State was faced with a decision—was the length of a standard
    range sentence sufficient given the facts of the case?
    Unlike a charging decision, imposing a sentence does not fall under the core
    responsibilities of a prosecutor. Ultimately, a trial court determines what sentence is
    appropriate. The State merely recommends what it believes to be an appropriate sentence
    based on the crimes. Given this important distinction, we decline to extend the
    Blackledge presumption in this context.
    CONCLUSION
    We hold that collateral estoppel does not apply when a court imposes an
    exceptional sentence at resentencing based on the "free crime" aggravator when it chose
    not to impose an exceptional sentence at the first sentencing. Further, we hold that a
    presumption of vindictiveness is not triggered when a judge imposes a shorter overall
    sentence than the original or when a prosecutor recommends an exceptional sentence at
    resentencing when it did not recommend such a sentence at the original sentencing. We
    affirm the Court of Appeals.
    17
    No. 95734-7
    WE CONCUR:
    \AJV^   (jXAti   ■
    ggr^
    State V. Brown (Ronald Richard), No. 95734-7
    (Gordon McCloud, J., dissenting)
    No. 95734-7
    GORDON McCLOUD,J.(dissenting)—The majority accurately recites the
    rules about the presumption of vindictiveness that arises when a postappeal
    sentence for a crime exceeds the preappeal sentence for that crime. But it applies
    those rules incorrectly. It errs by failing to recognize that at sentencing hearings in
    Washington,judges can consider only the facts ofthe crime of conviction—not the
    facts of other acquitted conduct, dismissed charges, or reversed convictions. This
    is "offense specific" sentencing as mandated by the state legislature. Since the
    legislature has mandated such offense specific sentencing, it necessarily follows
    that the only offense conduct that can be considered in comparing the length of a
    preappeal sentence for a crime to the length of the postappeal sentence for the
    exact same crime is the conduct specific to that crime—not the conduct specific to
    other dismissed or acquitted crimes.
    The majority makes a different comparison; it compares the preappeal
    sentence for seven crimes to the postappeal sentence for just three of those crimes,
    State V. Brown (Ronald Richard), No. 95734-7
    (Gordon McCloud, J., dissenting)
    even though convictions for four of the seven crimes were reversed. That flawed
    comparison leads the majority to approve postappeal sentences on the three
    remaining convictions that far exceed the sentences originally imposed on those
    same convictions, despite the absence of any new postappeal evidence to justify
    them.
    I therefore respectfully dissent.
    Factual and Procedural History
    A jury found Ronald Richard Brown guilty oftwo counts of first degree
    kidnapping, two counts of first degree robbery, two counts of second degree
    assault, and one count of first degree burglary in 2013. Clerk's Papers(CP) at 89
    (initial judgment and sentence). The superior court imposed a standard-range
    sentence on each of those seven counts. Id. at 91, 93. It explicitly declined to
    impose an exceptional sentence above the standard range on any count under
    RCW 9.94A.535(2)(c)(permitting use of high offender score as aggravating factor
    in certain circumstances). See id. at 116-18 (State's initial sentencing
    memorandum); Verbatim Report ofProceedings (June 21, 2016)(VRP)at 33-34.
    Brown appealed. In 2015, the Court of Appeals reversed four of the seven
    convictions. State v. Brown, No. 70148-7-1, slip op. at 12-17(Wash. Ct. App.
    July 27, 2015)(unpublished), https://www.courts.wa.gov/opinions/pdf/701487.pdf.
    State V. Brown (Ronald Richard), No. 95734-7
    (Gordon McCloud, J., dissenting)
    That court ruled that an error in the jury instructions for the kidnapping charges
    violated Brown's article I, section 22 and Sixth Amendment rights to notice of the
    charged crimes. Id. at 7-9; Wash. Const, art. I, § 22; U.S. Const, amend. VI. It
    also held that convicting and sentencing Brown for both assault and robbery (of
    each of the two victims) violated his article I, section 9 and Fifth Amendment
    rights. Brown, slip op. at 12-17; WASH. CONST, art. I, § 9; U.S. Const, amend. V.
    In other words, it reversed four of Brown's convictions due to constitutional error.
    On remand, the State declined to try Brown again on the kidnapping
    charges, even though those charges carried the highest seriousness level under the
    Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. VRP at 3-4; CP at
    91 (initial judgment and sentence). See generally RCW 9.94A.515 (ascribing
    seriousness levels to offenses). Instead, it moved to dismiss those charges without
    prejudice, and the superior court granted that motion. VRP at 4-5; CP at 26
    (motion), 25 (order).
    Thus, at Brown's resentencing in 2016, only three convictions remained.
    The offender scores for each of the three convictions decreased from 19 at the first
    sentencing hearing to 11 at resentencing.' Compare CP at 91 (initial judgment and
    ' Offender scores reflect prior criminal history and other current
    convictions. A score is calculated for each offense, and the score for one offense
    might differ from the score for another offense. See RCW 9.94A.525; WASH.
    State V. Brown (Ronald Richard), No. 95734-7
    (Gordon McCloud, J., dissenting)
    sentence), with id. at 9(judgment and sentence on remand). And at the
    resentencing hearing, the State presented no new facts. VRP at 19-27.
    Nevertheless, the State argued that the court should impose the same total
    period of confinement that it had previously imposed because that period of
    confinement "adequately represented the facts in this case." Id. at 21-22; see also
    CP at 32-36 (State's amended sentencing memorandum on remand). But because
    that total period of confinement was greater than the top of the standard ranges for
    the three remaining convictions, the State sought exceptional sentences above the
    range—^something it had not done at the first sentencing hearing.
    The State did not focus on Brown's individual offenses when it made this
    argument about "the facts ofthis case." CP at 32-36. Rather, the State focused on
    reaching a predetermined total period of confinement for all of the three remaining
    convictions. Id. It offered the court multiple ways to impose a total period of
    confinement equivalent to the one that Brown had originally received, id. at 34,
    thus indicating that it believed "the facts ofthis case" included the facts ofthe
    seven original crimes.
    State Caseload Forecast Council,2017 Washington State Adult
    Sentencing Guidelines Manual 63,
    https;//www.cfc.wa.gov/PublicationSentencing/SentencingManual/Adult_Sentenci
    ng_Manual_2017.pdf[https://perma.cc/78SQ-AK9G].
    State V. Brown (Ronald Richard), No. 95734-7
    (Gordon McCloud, J., dissenting)
    Specifically, when the State did discuss specific facts to be considered at
    resentencing, it did not limit its discussion to the conduct underlying the remaining
    robbery and burglary convictions. It also relied on conduct underlying the
    reversed—and consequently unproven—kidnapping counts. For example, in
    arguing for the same total period of confinement, the State asserted that Brown was
    "the one who's responsible in this case for the fact that [the alleged kidnapping
    victims] had to endure the hours of confinement and the hours of fear and anxiety
    on the night in question and following." VRP at 25.
    Brown argued against exceptional sentences. He explained that "there have
    been no new facts or identifiable conduct by the defendant, besides succeeding on
    appeal, that this court or the State could use to justify an exceptional sentence."
    CP at 29(Brown's sentencing memorandum on remand).
    The superior court declined to impose the same total period of confinement.
    But it did grant the State's request for exceptional sentences above the standard
    range. Id. at 21-22 (findings of fact and conclusions of law). The court concluded
    that the sentencing range resulting from Brown's number of convictions together
    with his criminal history did not adequately reflect his criminality, and, hence, it
    found "substantial and compelling reasons" to depart from the standard range for
    each conviction. Id.\ RCW 9.94A.535(2)(c). As a result. Brown's sentences for
    State V. Brown (Ronald Richard), No. 95734-7
    (Gordon McCloud, J., dissenting)
    the two robbery convictions increased from 231 months to 279 months, and his
    sentence for the burglary conviction increased from 176 months to 204 months.
    Compare CP at 93 (initial judgment and sentence), with id. at 11 (judgment and
    sentence after remand).
    Brown appealed the sentences. The Court of Appeals affirmed. State v.
    Brown, No. 75458-1-1(Wash. Ct. App. Mar. 12, 2018)(unpublished),
    http://www.courts.wa.gov/opinions/pdf/754581.pdf. This court granted review.
    State V. Brown, 
    190 Wn.2d 1025
     (2018).                      '
    Discussion
    Judicial Vindictiveness Presumptively Infected Brown's Resentencing—and the
    State Has Not Rebutted That Presumption
    A court violates a defendant's right to due process under the Fourteenth
    Amendment when it imposes a "penalty upon the defendant for having
    successfully pursued a statutory right of appeal." North Carolina v. Pearce, 
    395 U.S. 711
    , 724, 
    89 S. Ct. 2072
    , 
    23 L. Ed. 2d 656
     (1969), overruled on other
    grounds by Alabama v. Smith, 
    490 U.S. 794
    , 798-99, 
    109 S. Ct. 2201
    , 
    104 L. Ed. 2d 865
     (1989); U.S. Const, amend. XIV. Because "[t]he existence of a retaliatory
    motivation would, of course, be extremely difficult to prove in any individual
    case," Pearce, 
    395 U.S. at
    725 n.20, a presumption ofjudicial vindictiveness
    State V. Brown (Ronald Richard), No. 95734-7
    (Gordon McCloud, J., dissenting)
    applies when "there is a 'reasonable likelihood' that [an] increase in [the] sentence
    is the product of actual vindictiveness on the part of the sentencing authority."
    Smith, 
    490 U.S. at 799
     (quoting United States v. Goodwin,
    457 U.S. 368
    ,473, 
    102 S. Ct. 2485
    ,
    73 L. Ed. 2d 74
    (1982)). When the record allows, however, the State
    may rebut that presumption. Texas v. McCullough,
    475 U.S. 134
    , 140, 
    106 S. Ct. 976
    , 
    89 L. Ed. 2d 104
    (1986).
    Here, there is a reasonable likelihood that Brown's increased sentences were
    a response to—and therefore a penalty for—his success on appeal. Consequently,
    the presumption ofjudicial vindictiveness applies. And the State has not rebutted
    that presumption.
    A.     Brown Got Longer Sentences on His Convictions after His Successful
    Appeal
    The first step in this analysis is to determine whether the postappeal
    sentences were really longer than the preappeal sentences. To do that, we look to
    Washington sentencing law.
    Our state legislature requires offense-specific sentencing. See ch. 9.94A
    RCW; Wash.State Caseload Forecast Council,2017 Washington State
    Adult Sentencing Guidelines Manual 63,
    https://www.cfc.wa.gov/PublicationSentencing/SentencingManual/Adult_Sentenci
    State V. Brown (RonaldRichard), No. 95734-7
    (Gordon McCloud, J., dissenting)
    ng_Manual_2017.pdf[https://perma.cc/78SQ-AK9G]("For multiple current
    offenses, separate sentence calculations are necessary for each offense because the
    law requires that each receive a separate sentence."). In furtherance of that policy
    decision, Washington's SRA requires trial courts to consider only "real facts" of
    the crimes of conviction at sentencing. RCW 9.94A.530(2); State v. Houf, 
    120 Wn.2d 327
    , 332-34, 
    841 P.2d 42
    (1992). In this respect, Washington's SRA
    differs from the federal sentencing guidelines, which permit consideration of other
    factors, including acquitted conduct. 
    18 U.S.C. § 3661
    ; United States v. Watts, 
    519 U.S. 148
    , 151-54, 
    117 S. Ct. 633
    , 
    136 L. Ed. 2d 554
    (1997)(per curiam).
    "Real facts" are those that the State has proved or that the defendant has
    affirmatively admitted. RCW 9.94A.530(2); State v. Hunley, 
    175 Wn.2d 901
    , 
    287 P.3d 584
    (2012)(holding that a defendant's silence does not relieve the State of its
    burden of proving sentence-enhancing facts). "The 'real facts' or 'established
    facts' concept excludes consideration of either uncharged crimes or of crimes that
    were charged but later dismissed." State v. McAlpin, 
    108 Wn.2d 458
    , 466, 
    740 P.2d 824
    (1987)(collecting cases). Conduct that has "not resulted in convictions
    .. . may not be considered at all." 
    Id. at 467
    . Thus, the SRA precludes a
    sentencing court from considering reversed convictions when it imposes a sentence
    State V. Brown (Ronald Richard), No. 95734-7
    (Gordon McCloud, J., dissenting)
    because reversed convictions are not convictions. See Pearce, 
    395 U.S. at 721
    (observing that overturning a conviction results in "the slate [being] wiped clean").
    The four reversed convictions in this case fall outside the definition of"real
    facts." Those convictions were not just "wiped clean"; they were reversed due to
    unconstitutionality. Under United States Supreme Court precedent, a sentencing
    court cannot consider an unconstitutionally obtained conviction for any purpose.^
    In other words, under controlling law. Brown's sentences for his three remaining
    convictions could be based on only those three convictions. It is indisputable that
    the superior court imposed longer sentences on each of these three convictions
    after Brown's successful appeal than it did before.
    B.     Because Brown's Three Sentences Were Longer after Appeal Than
    They Were Before, Pearce's Holding—That a Presumption of
    Judicial Vindictiveness Arises When the Same Sentencing Court
    Increases a Sentence after Appeal without Any New Factual Basis—
    Applies in This Case
    Pearce makes clear that a presumption ofjudicial vindictiveness applies
    when, as here, postappeal sentences exceed preappeal sentences. Pearce also
    ^ United States v. Tucker, 
    404 U.S. 443
    , 448-49, 
    92 S. Ct. 589
    , 
    30 L. Ed. 2d 592
    (1972); Burgettv. Texas, 
    389 U.S. 109
    , 115, 
    88 S. Ct. 258
    , 
    19 L. Ed. 2d 319
    (1967); State v. Ammons, 
    105 Wn.2d 175
    , 187-88, 
    713 P.2d 719
    , 
    718 P.2d 796
    (1986).
    State V. Brown (Ronald Richard), No. 95734-7
    (Gordon McCloud, J., dissenting)
    makes clear that such vindictiveness violates the defendant's right to due process
    under the Fourteenth Amendment.
    Pearce was convicted of assault with intent to commit rape and sentenced to
    12 to 15 years in prison. 
    395 U.S. at 713
    . His conviction was later reversed by a
    state appellate court, and the State decided to retry him. 
    Id.
     Pearce was convicted
    again, and the court imposed an 8-year prison sentence. 
    Id.
     But"when added to
    the time Pearce had already spent in prison, the parties agree[d the new sentence]
    amounted to a longer total sentence than that originally imposed." 
    Id.
    The United States Supreme Court viewed the second sentence as a "more
    severe punishment," despite its facial appearance of leniency. 
    Id. at 716
    . Yet the
    sentencing court's reasons, if any, for imposing the increased sentence were "not
    so dramatically clear." 
    Id. at 726
    . And "the State [had not] offered any reason or
    justification for that sentence beyond the naked power to impose it." 
    Id.
     The
    Court therefore presumed that the sentencing court had imposed the "heavier
    sentence" in response to the defendant's "having succeeded in getting his original
    conviction set aside." 
    Id. at 723-24
    .
    That presumptively vindictive response violated the defendant's right to due
    process. "Due process oflaw . . . requires that vindictiveness against a defendant
    for having successfully attacked his first conviction must play no part in the
    10
    State V. Brown (Ronald Richard), No. 95734-7
    (Gordon McCloud, J., dissenting)
    sentence he receives after a new trial." 
    Id. at 725
    . The Supreme Court therefore
    affirmed the grant of the writ of habeas corpus, holding that Pearce could not be
    imprisoned under the unconstitutional sentence. 
    Id.
    The Court also made clear, however, that an increased sentence will not
    always violate the defendant's right to due process. It stated,"A trial judge is not
    constitutionally precluded . . . from imposing a new sentence, whether greater or
    less than the original sentence, in the light of events subsequent to the first trial that
    may have thrown new light upon the defendant's 'life, health, habits, conduct, and
    mental and moral propensities,"' which are all permissible sentencing factors in the
    federal system. 
    Id. at 723
     (quoting Williams v. New York, 
    337 U.S. 241
    , 245,
    
    69 S. Ct. 1079
    , 
    93 L. Ed. 1337
     (1949)).^ The Court noted that "[sjuch information
    may come to the judge's attention from evidence adduced at the second trial itself,
    from a new presentence investigation, from the defendant's prison record, or
    possibly from other sources." 
    Id.
     Thus, new information could justify a sentence
    increase, but when no new information exists, a presumption ofjudicial
    vindictiveness arises.
    ^ As discussed above, the SRA's "real facts" doctrine places additional
    limits on what can be considered at sentencing under the SRA.
    11
    State V. Brown (Ronald Richard), No. 95734-7
    (Gordon McCloud, J., dissenting)
    No relevant new information about Brown or his crimes was presented at his
    resentencing, though it certainly could have been."^ The presumption ofjudicial
    vindictiveness therefore applies in this case.
    The majority holds to the contrary because it concludes that Brown's
    sentences were not really increased. The majority reaches that conclusion by
    comparing Brown's new total period of confinement to his initial total period of
    confinement. Majority at 13-14.
    But that is not the correct comparison to make in Washington. Instead, as
    discussed in Part A above, Washington courts must impose a specific sentence for
    each specific offense of conviction based on "real facts" proved (or admitted)
    about that specific offense. Thus, as a matter of state law. Brown's punishment did
    increase because the comparison runs from a given conviction's initial sentence to
    the same conviction's new sentence. And because the punishment increased under
    state law, federal law requires that we presume that vindictiveness motivated the
    RCW 9.94.530(2) provides that "[o]n remand for resentencing following
    appeal or collateral attack, the parties shall have the opportunity to present and the
    court to consider all relevant evidence regarding criminal history, including
    criminal history not previously presented." RCW 9.94A.525(22)further provides
    that "[pjrior convictions that were not included in criminal history or in the
    offender score shall be included upon any resentencing to ensure imposition of an
    accurate sentence."
    12
    State V. Brown (Ronald Richard), No. 95734-7
    (Gordon McCloud, J., dissenting)
    harsher punishment, unless the sentencing court relied on new information to
    justify the harsher punishment.
    The majority follows federal circuit courts of appeals that compare the "total
    aggregate" of prison time imposed at the two sentencing hearings. Majority at 11.
    But those decisions are inapt because they are based on a fundamentally different
    sentencing scheme—one in which the sentencing court may consider uncharged
    conduct, e.g., UNITED STATES Sentencing Commission Guidelines Manual
    2018 § lB1.3(a), http://www.ussc.gov/sites/default/files/pdf/guidelines-
    manual/2018/GLMFull.pdf[https://perma.cc/V43L-MQP6] as well as acquittals
    and reversed convictions. See Watts, 
    519 U.S. at 151-54
    . Under that sentencing
    scheme, federal courts consider sentences a package penalty for the crimes of
    conviction. See United States v. Pimienta-Redondo, 
    874 F.2d 9
    , 14 (1st Cir. 1989);
    United States v. Gray, 
    852 F.2d 136
    , 138 (4th Cir. 1988); United States v. Shue,
    825 F.2dllll, 1114-15 (7th Cir. 1987); United States v. Bay, 
    820 F.2d 1511
    ,
    1513-14 (9th Cir. 1987). Contrary to the federal model, where the "factors
    underlying the original sentence in a multiple count case are not necessarily altered
    when a defendant successfully appeals his conviction on one count," Pimienta-
    Redondo, 
    874 F.2d at 14
    , the facts are necessarily altered in Washington when a
    conviction is overturned. RCW 9.94A.530(2); McAlpin, 
    108 Wn.2d at 465-67
    .
    13
    State V. Brown (Ronald Richard), No. 95734-7
    (Gordon McCloud, J., dissenting)
    C.     Subsequent Decisions Narrowed Pearce—^But It Still Applies with
    Full Force to This Exact Type of Case
    It is true that subsequent United States Supreme Court decisions have
    limited Pearce. But those decisions reinforce, not undermine, the conclusion that
    the presumption ofjudicial vindictiveness applies here.
    The earliest ^ost-Pearce Supreme Court decisions held that a presumption of
    judicial vindictiveness does not arise when the second sentencer, whether it be
    judge or jury, differs from the first sentencer. See Chaffin v. Stynchcombe, 
    412 U.S. 17
    , 
    93 S. Ct. 1977
    , 
    36 L. Ed. 2d 714
    (1973); Cohen v. Kentucky, 
    407 U.S. 104
    , 
    92 S. Ct. 1953
    , 
    32 L. Ed. 2d 584
    (1972). The Court noted that there is less
    risk of vindictiveness when the second sentencer "is not the court that is asked to
    do over what it thought it had already done correctly." Cohen,
    407 U.S. at 116-17
    ;
    see also Chaffin, 
    412 U.S. at 27
    . In some instances, the second sentencer may not
    even have knowledge of the initial sentence.           
    412 U.S. at 26-27
    .
    Accordingly, no reasonable likelihood—and therefore no presumption—of
    vindictiveness exists in those situations.
    Two later decisions, McCullough and Smith, underscored Pearce's
    cautionary statement that no presumption ofjudicial vindictiveness arises when the
    sentencing court relies on new, previously unavailable information to impose a
    harsher sentence at resentencing.
    14
    State V. Brown (Ronald Richard), No. 95734-7
    (Gordon McCloud, J., dissenting)
    In McCullough, a defendant received a 20-year prison sentence after his first
    trial for murder, but a 50-year prison sentence after his second trial. 
    475 U.S. at 135-36
    . But the Court upheld the longer sentence against the defendant's
    Pearce challenge. Reviewing the record, the Court noted that the trial judge
    explained that she had imposed a 50-year sentence partly because of"the
    testimony oftwo new witnesses" at the second trial that had cast the defendant's
    conduct in a worse light. 
    Id. at 143
    . The Court held that that testimony and other
    new information about the defendant's criminal history permissibly supported the
    increased sentence.^ 
    Id. at 144
    . Thus, McCullough clarified that the Pearce
    presumption does not apply when there is "new, probative evidence" to support the
    imposition of a harsher sentence at the second proceeding. 
    Id. at 143
    .
    Smith bolstered that conclusion. In that case, a defendant pleaded guilty to
    burglary and rape and received two concurrent 30-year prison sentences for the
    two convictions. 
    490 U.S. at 795-96
    . The defendant later argued that his plea was
    not knowing and voluntary, and an appellate court permitted him to withdraw the
    plea. 
    Id. at 796
    .
    ^ Additionally, as in Colten and Chaffm,Pearce's,"presumption [was]
    inapplicable because different sentencers assessed the varying sentences that [the
    defendant] received." McCullough, 
    475 U.S. at 140
    . A jury initially determined
    the defendant's sentence, but on retrial, the judge determined the sentence. 
    Id. at 136
    .
    15
    State V. Brown (Ronald Richard), No. 95734-7
    (Gordon McCIoud, J., dissenting)
    The State then prosecuted the defendant for burglary, rape, and sodomy. 
    Id.
    At the trial, a cacophony of terrible facts emerged:
    [T]he victim testified that respondent had broken into her home in the
    middle of the night, clad only in his underwear and a ski mask and
    wielding a kitchen knife. Holding the knife to her chest, he had raped
    and sodomized her repeatedly and forced her to engage in oral sex
    with him. The attack, which lasted for more than an hour, occurred in
    the victim's bedroom,just across the hall from the room in which her
    three young children lay sleeping.
    
    Id.
     On those facts, "[t]he jury returned a verdict of guilty on all three counts." 
    Id.
    At sentencing,"the trial judge imposed a term of life imprisomnent for the
    burglary conviction, plus a concurrent term of life imprisonment on the sodomy
    conviction and a consecutive term of 150 years' imprisonment on the rape
    conviction." 
    Id.
     Thus, the sentences for the burglary and rape convictions
    increased as compared to the initial sentences imposed for those crimes under the
    plea bargain. And the life sentence for the new sodomy conviction far outstripped
    the 30-year prison terms that the defendant had initially received for the other two
    convictions.
    But the Supreme Court upheld the longer sentences against a Pearce
    challenge, even though the same judge had imposed both sets of sentences. The
    Court pointed out that "[t]he trial court [had] explained that it was imposing a
    harsher sentence than it had imposed following [the defendant's] guilty plea
    16
    State V. Brown (Ronald Richard), No. 95734-7
    (Gordon McCloud, J., dissenting)
    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." 
    Id. at 196-91
    . And just as the new information made a
    difference to the trial court, it made a difference to the Supreme Court's Pearce
    analysis. "As this case demonstrates, in the course of the proof at trial the judge
    may gather a fuller appreciation of the nature and extent of the crimes charged," it
    observed. Id. at 801 (citation omitted). The Court therefore held that when new
    information about the defendant's conduct comes into the record, the Pearce
    presumption does not apply. Id. at 802.
    Cohen, Chaffin, McCullough, and Smith confirm that the Pearce
    presumption applies in this case. The same superior court judge sentenced Brown
    both times. VRP at 33-34. The State presented no new facts at the resentencing to
    support the harsher exceptional sentences. In fact, Washington's "real facts"
    doctrine provided that there were fewer inculpatory facts than existed at the initial
    sentencing.
    Although the superior court complied with Pearce's, mandate to
    affirmatively identify its reason for imposing harsher sentences on remand,
    
    395 U.S. at 726
    , its explanation of its decision did not—and could not—generate
    any new facts about the crime. The court stated only a general basis for imposing
    17
    State V. Brown (Ronald Richard), No. 95734-7
    (Gordon McCloud, J., dissenting)
    sentences above the standard range, and it was a basis that was even more justified
    at the first sentencing when the offender scores were far higher: "I don't think it's
    appropriate for you to have free crimes in relation to what happened here."^ VRP
    at 34. So that's not a new fact, either.
    Neither Brown's mitigating conduct—ensuring that one of the victims
    received medication during the criminal episode, id. at 24, 33—nor the existence of
    "free crimes" changed from one proceeding to the next. If anything, the "number"
    of Brown's "free crimes" decreased when his offender score dropped from 19 to 11
    ^ RCW 9.94A.535(2)(c) permits an exceptional sentence above the standard
    range when "[t]he defendant has committed multiple current offenses and the
    defendant's offender score results in some of the current offenses going
    unpunished"—or, in more common parlance, when the defendant gets "free
    crimes." See State v. Alvarado, 
    164 Wn.2d 556
    , 567, 
    192 P.3d 345
     (2008).
    The Court of Appeals explained how RCW 9.94A.535(2)(c) operates in
    State V. Newlun:
    If the number of current offenses, when applied to the sentencing grid,
    results in the legal conclusion that the defendant's presumptive
    sentence is identical to that which would be imposed if the defendant
    had committed fewer current offenses, then an exceptional sentence
    may be imposed.
    
    142 Wn. App. 730
    , 743, 
    176 P.3d 529
    (2008);         also RCW 9.94A.510 (providing
    sentencing grid).
    18
    State V. Brown (Ronald Richard), No. 95734-7
    (Gordon McCloud, J., dissenting)
    for the robbery and burglary convictions. In the absence of any new additional
    inculpatory information, Pearce's presumption ofjudicial vindictiveness applies.^
    The State has made no effort to rebut that presumption. See Suppl. Br. of
    Resp't at 8-11 (arguing only that the presumption does not apply). Accordingly,
    we must presume that Brown's right to due process has been violated, and I would
    reverse the decision of the Court of Appeals and remand the case for resentencing
    on that basis.
    Conclusion
    The Court of Appeals reversed four of Brown's seven convictions due to
    constitutional error. The judge then imposed a higher sentence on each of his three
    remaining convictions. There were no new facts to justify the new, higher,
    sentences. We must therefore apply the Pearce presumption ofjudicial
    vindictiveness. The State offers only the facts of reversed convictions to rebut that
    presumption, and that does not suffice.
    I respectfully dissent.
    ^ Division Two has reached the same conclusion. See State v. Ameline, 
    118 Wn. App. 128
    , 133, 
    75 P.3d 589
     (2003). "If the only new fact is that [the
    defendant] has again succeeded on appeal, the new sentence may not be more
    harsh than the first and second ones." Id. at 134.
    19
    State V. Brown (Ronald Richard), No. 95734-7
    (Gordon McCloud, J., dissenting)
    20