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Oregon Supreme Court Rules No Vindictiveness in Resentencing Where Longer Term for Specific Conviction but Overall Multi-Conviction Sentence Shorter

by Mark Wilson

The en banc Oregon Supreme Court ruled that the “presumption of vindictiveness” is not triggered by an increased sentence on a single count when the aggregate sentence length decreases on resentencing.

Roger Robert Febuary was convicted of five crimes for giving alcohol to a minor and sexually abusing her. He was sentenced to consecutive 75-month prison terms on two sexual abuse convictions and a 20-month prison term on an attempted sodomy conviction. The trial court also imposed concurrent 60-month probation terms on sexual harassment and furnishing alcohol to a minor convictions. This resulted in a 170-month prison term and a 60-month probation term.

The Oregon Court of Appeals reversed because of an evidentiary error at trial. The prosecution dismissed three charges on remand after Febuary pleaded guilty to one count of sexual abuse and one count of furnishing alcohol to a minor.

The sentencing court cited the “malicious” and “profoundly offensive” nature of Febuary’s crimes and reduced overall sentence exposure as “non-vindictive reasons” to increase the sentence on the alcohol conviction. Ultimately, the court imposed a 75-month prison term on the sexual abuse conviction and a consecutive 12-month prison term on the alcohol conviction, resulting in a total prison term of 87 months. The resentencing resulted in an overall sentence that was 83 months shorter than the first sentence.

The Oregon Supreme Court affirmed, rejecting Febuary’s argument that the increased sentence on the alcohol conviction violated his due process rights and was prohibited under North Carolina v. Pearce, 395 U.S. 711 (1969), and its progeny.

Citing Wasman v. United States, 468 U.S. 559 (1984), the Oregon Supreme Court observed that “the due process violation described in Pearce occurs in principle when two elements are present: an ‘improper motive’ that causes a ‘more severe’ second sentence.” Even in the absence of evidence of an improper motive, greater severity of a new sentence can present a “reasonable likelihood” or presumption of actual vindictiveness, which the state bears the burden of rebutting.

Febuary argued that a presumption of vindictiveness was warranted because the same judge imposed both sentences. That is, “certain ‘mental processes,’ such as ‘cognitive dissonance,’ ‘confirmation bias,’ and the ‘anchoring-and-adjustment heuristic,’ ‘create a near-ubiquitous human tendency to insufficiently adjust to new information after previously taking a position.’” Febuary cited psychology studies that claimed to prove that those effects cause individuals, including judges, to “self-vindicate.”

The Oregon Supreme Court rejected this argument. “First, the influence of subconscious or unconscious biases can be profound, but precisely because they are subconscious or unconscious, those biases lack purpose or intention and therefore do not demonstrate the improper motive that is a necessary part of a Pearce due process violation,” the Court found. “Second, the psychological research” that Febuary relied upon “existed at the time of [U.S.] Supreme Court decisions in this area, and the Court has demonstrated its awareness of those issues” but “has not indicated that those theories justify applying the expansive rule urged by defendant.”

The Oregon high court ultimately held that “the mere fact that the same judge resentences a defendant is not a basis for a presumption of improper motive.”

The Court also rejected Febuary’s argument “that a presumption of vindictiveness should apply because the mathematical relationship between his first and second sentences demonstrates that his second sentence, though shorter overall, is nonetheless more severe.”

Observing that Febuary failed “to identify any authority” for his position, the Court ultimately concluded that “the proper approach to analyzing multi-count cases at resentencing. See: State v. Febuary, 396 P.3d 894 (Or. 2017). 


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