When an appellate court remands a case for resentencing, a trial court cannot “take action inconsistent with” the appellate opinion, but may otherwise “consider every aspect of defendant’s sentence de novo.” People v Lampe, 327 Mich App 104, 112 (2019) (where the Court of Appeals remanded for resentencing “without any specific instructions or any prohibitions on scoring OVs” on remand the trial court did not err by scoring OV 3 and OV 10 even though they were not scored at the original sentencing).
Presumption of vindictiveness. The United States Supreme Courtrecognized a presumption of vindictiveness “‘whenever a judge imposes a more severe sentence upon a defendant after a new trial,’” and the reasons for the sentence do not “‘affirmatively appear’” on the record; however, that presumption was limited in later cases to apply only where “there is a reasonable likelihood that a sentence improperly punishes a defendant for exercising the right to appeal a conviction[.]” North Carolina v Pearce, 395 US 711, 726 (1969), overruled by Alabama v Smith, 490 US 794 (1989). “Where there is no . . . reasonable likelihood [that vindictiveness influenced the sentence], the burden remains upon the defendant to prove actual vindictiveness.” Smith, 490 US at 799 (holding that imposition of a greater sentence following a defendant’s trial than the sentence imposed after the defendant’s previous guilty plea does not necessarily indicate vindictiveness).
The United States Supreme Court has “limited . . . application [of the presumption of vindictiveness], like that of other judicially created means of effectuating the rights secured by the Constitution, to circumstances where its objectives are thought most efficaciously served.” Id. (cleaned up). Such circumstances involve “a reasonable likelihood that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.” Id. (quotation marks and citation omitted).
The presumption of vindictiveness may be rebutted by “objective information . . . justifying the increased sentence.” Id. (quotation marks and citation omitted). In cases where a greater sentence is imposed after a trial than was imposed after a defendant’s previous guilty plea, the difference may be explained as follows:
“[I]n the course of the proof at trial the judge may gather a fuller appreciation of the nature and extent of the crimes charged. The defendant’s conduct during trial may give the judge insights into his moral character and suitability for rehabilitation.” Smith, 490 US at 801.
The same may not be true of the sentence imposed by the same judge after a defendant’s second trial. Id. “There, the sentencing judge who presides at both trials can be expected to operate in the context of roughly the same sentencing considerations after the second trial as he does after the first; any unexplained change in the sentence is therefore subject to a presumption of vindictiveness.” Id. at 802.