Attorneys for Appellee

Jeffery A. Modisett
Attorney General of Indiana

Kathryn Janeway
Deputy Attorney General
Indianapolis, Indiana

     IN THE INDIANA SUPREME COURT

Appellant (Defendant below)

                       v.
                        

                       STATE OF INDIANA,
         Appellee (Plaintiff below  ).

                       

                       

    APPEAL FROM THE RANDOLPH CIRCUIT COURT
    The Honorable Jan Chalfant, Judge
    Cause No. 68C01-9505-CF-13

    Defendant argues that the trial court erred when it resentenced him and increased the enhancement period of his original sentence from ten to 20 years. It is true that, upon resentencing a defendant, a sentencing court cannot “impose a more severe penalty than that originally imposed unless the court includes in the record of the sentencing hearing a statement of the court’s reasons for selecting the sentence that it imposes which includes reliance upon identifiable conduct on the part of the petitioner that occurred after the imposition of the original sentence.” Ind. Post-Conviction Rule 1(10)(b). But that is not what happened in this case.

     Here, the resentencing court incorporated by reference the same aggravators and one mitigator recited by the trial court at the first sentencing hearing and agreed that the “aggravating circumstances substantially and totally outweigh[ed]” the mitigating circumstance. (R. at 35-36.) With more than adequate justification, See footnote the court imposed upon Defendant the maximum enhancement and maximum 60-year sentence in both i nstances. The resentencing court did not impose a more severe penalty or sentence upon Defendant when it resentenced him; the term remained the same and the sentence does not violate P-C.R. 1(10)(b).

    Defendant also supports his claim by citing to North Carolina v. Pearce, 395 U.S. 711, (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989), a case holding that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” Id. at 726 (emphases added). This case is inapplicable to Defendant for three reasons. First, as we concluded supra, the resentencing court did not impose a more severe sentence upon Defendant. Second, the harm that the Pearce case seeks to prevent upon resentencing is not the imposition of greater sentences but the “vindictiveness of a sentencing judge” for a defendant’s successful appeal of the court’s holding. Alabama, 490 U.S. at 799. Defendant does not present evidence to suggest that the court increased his enhancement period from ten to 20 years because he successfully appealed his original sentence. See footnote Third, Pearce and the Indiana cases Defendant cites all involve situations where the defendant improperly received an increased total sentence upon retrial or plea negotiations after an original conviction was set aside due to the defendant’s successful challenge of a guilty plea. See Ogburn v. State, 549 N.E.2d 389, 391-92 (Ind. Ct. App. 1990) (original sentence of six years increased to seven after the defendant was granted post-conviction relief, again pled guilty to the same crimes, and was resentenced); Newville, 511 N.E.2d at 1049 (original sentence of 40 years increased to 45 after retrial); Ballard v. State, 262 Ind. 482, 499-500, 318 N.E.2d 798, 809-10 (1974) (original sentence of two to five years increased to 10 to 25 years after retrial). In the present case, Defendant was not retried and he did not receive an increased sentence.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ. concur.