          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                        o
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                        Respondent,               DIVISION ONE                        169 Wash. App. 1025, 2012 WL 2989593, at *1.

       On remand, after consultation with T.W., the State elected not to re-try Sandvig

on the charge of rape of a child in the third degree, and filed a motion to dismiss Count

IV. The court granted the motion to dismiss rape of a child in the third degree, Count IV,
resulting in reduction of the offender score from 9 to 6. With an offender score of 6, the
No. 70065-1-1/5


standard-range sentence for the two convictions for rape of a child in the second

degree, Counts I and II, was 146 to 194 months, and the standard range for the

conviction of molestation of a child in the second degree, Count III, was 57 to 75

months.

      The State asked the court to impose a high-end standard-range sentence of 194

months on Counts I and II, and a concurrent 75-month sentence on Count III.

       Sandvig filed a "Re-Sentencing Memorandum" asking the court to impose a

sentence of 170 months for the two convictions for rape of a child in the second degree

and a concurrent mid-range sentence for molestation of a child in the second degree.

Sandvig asserted a mid-range 170-month sentence was consistent with the previous

imposition of a mid-range sentence of 245 months. Sandvig argued that under North

Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969),1 increasing

the sentence above the middle of the standard range would violate due process by

penalizing Sandvig for exercising his right to appeal.

       The State filed a memorandum arguing that because it was seeking a less

severe sentence, Pearce did not apply. The State asserted the severity of the conduct

warranted a high-end 194-month sentence because the facts at trial "create[d] a picture
of an ongoing and protracted pattern ofabuse that still is relevant to the imposition of
the sentence on Counts I through III."

       The court ruled Pearce did not apply and rejected the argument that it was bound

to impose a sentence in the middle of the newly-calculated standard range:
       I don't believe that [Pearce's] reasoning is applicable, frankly, to this
       particular set offacts .... Frankly, Ithink Iconcur with some ofthe

       1 Overruled on other grounds bv Alabama v. Smith. 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d
865(1989).
No. 70065-1-1/6


       analysis of making sure that a defendant is not subject to vindictive action
       for exercising constitutional rights to challenge convictions and making
       sure, as a sentencing court, to look at the facts before the Court at the
       time it comes before the Court.

       The court considered the impact of the crimes on the victim and the total amount

of time imposed before concluding a high-end sentence was warranted. The court

stated that in the prior sentencing it was careful to consider not only where the sentence

fell within the standard range, but also the total amount of time imposed. The court

ruled, in pertinent part:

       I listened to the victim and the impact that these particular acts had on
       her.... I took that into consideration in fashioning a sentence and
       determined that the amount of time, not just where it fell in the range, but
       the amount of time that I had imposed was sufficient in the prior
       sentencing.
               So in coming back for a resentencing based on a recalculation of
       offender score, I'm not compelled to really start kind of in the middle ....
       All the concerns that the victim had brought forward at the prior
       sentencing, all the facts that I listened to at the jury trial, are still in play,
       are still relevant in fashioning a sentence.. ..
               The high end of the standard range in Counts I and II is 194
       months. It does not shock my conscience to impose that 194 months
       based upon all the facts that were before me at the prior sentencing,
       which means that they are before me now.

       The court imposed an indeterminate high-end standard-range sentence of 194

months on Counts I and II, and a concurrent 75-month sentence on Count III. Sandvig

appeals.

                                          ANALYSIS

       Sandvig contends the concurrent high-end 194-month standard-range sentence

on the two counts of rape of a child in the second degree violated his due process

rights. Sandvig argues that because the court on remand did not impose a mid-range
No. 70065-1-1/7


sentence of 170 months, the court punished him for exercising his constitutional right to

appeal.

      The due process clause of the Fourteenth Amendment to the United States

Constitution prohibits a judge from vindictively imposing an increased sentence to

punish a defendant for successfully exercising his constitutional right to appeal. Pearce,

395 U.S. at 723-25. Under Pearce, a more severe sentence on remand establishes a

rebuttable presumption of vindictiveness. State v. Franklin. 56 Wash. App. 915, 920, 786

P.2d 795 (1989). Where the presumption applies, the court must point to an "on-the-

record, wholly logical, nonvindictive reason for the sentence." Texas v. McCullough,

475 U.S. 134, 140, 106 S. Ct. 976, 89 L Ed. 2d 104 (1986).

       However, where the sentence imposed following appeal is less severe than the

sentence originally imposed, there is no presumption of vindictiveness. Franklin, 56

Wash. App. at 920 ("Here, no such presumption is raised as the sentence was not

increased."); State v. Larson, 56 Wash. App. 323, 328, 783 P.2d 1093 (1989) (no Pearce

presumption arose where "revised aggregate sentence is less severe than [defendant's]

original aggregate sentence" and revised sentence "is fully explained by the trial court's

original sentencing intent"); United States v. Campbell, 106 F.3d 64, 69 (5th Cir. 1997)

(no presumption of vindictiveness arose where defendant's original sentence was 51

months and sentence following appeal was 40 months); United States v. Bay, 820 F.2d

1511, 1514 (9th Cir. 1987) (no presumption of vindictiveness where total sentence

reduced).

       Here, there is no presumption of vindictiveness because the court imposed a less

severe ellisonkayla@example.org. Following trial, the court sentenced Sandvig to
No. 70065-1-1/8


concurrent 245 months on the two counts of rape of a child in the second degree,

Counts I and II. On remand, the court sentenced Sandvig to a concurrent 194-month

sentence on Counts I and II. Nonetheless, Sandvig relies on United States v. Barry,

961 F.2d 260 (D.C. Cir. 1992), to argue that the Pearce presumption of vindictiveness

applies because the court imposed "a proportionately increased sentence on remand."

          But Barry does not hold that a proportionally higher sentence is presumptively

vindictive. In Barry, a jury convicted the defendant Barry of one count of misdemeanor

cocaine possession. Barry, 961 ellisonkayla@example.org. The sentencing guidelines provided the

base offense level was six. After determining that Barry had falsely testified to the

grand jury, the court imposed a two-level increase for falsely testifying and obstruction.

Barry, 961 ellisonkayla@example.org. With a level of eight, the range was two to eight months. After

considering mitigating factors, the court imposed a six-month sentence. Barry, 961 F.2d

at 262.

          On appeal, the Court held the trial court did not adequately explain how the false

grand jury testimony obstructed the investigation of the misdemeanor cocaine

possession offense, and remanded for resentencing. Barry, 961 ellisonkayla@example.org. On

remand, the court concluded it could not apply the two-level increase for obstruction.

Without the two-level increase, the sentencing range was zero to six months rather than

two to eight months. Barry, 961 ellisonkayla@example.org. The court concluded a number of

factors warranted imposing a high-end sentence of six months. Barry, 961 F.2d at 262-

63.

          Barry appealed, arguing that Pearce created a rebuttable presumption of

vindictiveness because the sentence on remand was relatively more severe in terms of


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No. 70065-1-1/9


where it fell within the standard range. Barry. 961 ellisonkayla@example.org. The Court

acknowledged that because the sentence "increase[d] in its relative severity,[ jit could

be argued that Pearce . . . applies here." Barry, 961 ellisonkayla@example.org. However, the Court

affirmed because "the judge provided an entirely credible, non-vindictive rationale for his

resentencing decision." Barry. 961 F.2dat268.

       Here, even if we were to agree, which we do not, that Pearce creates a

rebuttable presumption of vindictiveness, the record establishes a logical nonvindictive

reason for imposing a high-end concurrent 194-month sentence for the two counts of

rape of a child in the second degree. The record shows that on remand, the court

concluded that the middle of the newly calculated standard range of 146 to 194 months

did not adequately account for the impact on the victim. The court ruled that based on

the facts of the case "and the impact that these particular acts had on [T.W.]," the case

warranted a high-end standard-range sentence.

       We affirm.




                                                       JL-^P.
WE CONCUR:




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