Supreme Court of Georgia Changes Approach to Sentencing After Appeal

In Adams v. State.pdf, the Supreme Court of Georgia held that it is appropriate for a sentencing judge, after a reversal for judicial error, to impose a greater sentence on an individual count as long as the sentence in the aggregate is not increased. The dissent, consisting of three justices, reasons that the Court’s holding reverse long-established precedent.

The Key Facts

Here are the facts. Tavins Lee Adams was convicted of child molestation, aggravated child molestation, aggravated sodomy, and enticing a child for indecent purposes for actions that took place in a single incident.

The Original Sentence

• aggravated child molestation merged into aggravated sodomy 20 years to serve
• child molestation 20 years to serve
• enticing a child for indecent purposes 20 years to serve

Sentence After Motion for New Trial was Granted and After Re-sentencing

• child molestation merged into aggravated sodomy 30 years to serve
• enticing a child for indecent purposes 20 years to serve

Adams appealed, arguing that the trial court’s decision to increase the sentence on aggravated sodomy was in increase in punishment, not allowed by the United States Supreme Court’s holding in North Carolina v. Pearce. The Court of Appeals held that because, the aggregate sentence was less than the original aggregate sentence, there was no problem with the sentence.

Getting Past the Presumption

The majority opinion, consisting of the usual suspects on cases like these (Nahmias, Melton, Carley, and Thompson), held that the trial court did not violate the principles in North Carolina v. Pearce (a U.S. Supreme Court holding that a trial court cannot increase a person’s sentence after he prevails on appeal. The Court held that there is a presumption of vindictiveness whenever a more severe sentence is imposed after a new trial, “which may be overcome by objective information in the record justifying the increased sentence”).

For the majority, it was key that the trial judge granted a motion for new trial and merged an offense rather than being told to do so by the appellate court. For the minority, such a distinction did not make a difference because the judge followed the law and he acknowledged making a mistake after such was pointed out by the defendant.

Meet the New Analysis

After the majority takes apart the presumption by reference to the motion for new trial, it sets out in division two of the opinion to really do some damage to Georgia precedent. Justice Carley starts out in the law of other states, finding that “the vast majority of federal and state appellate courts that have addressed this issue have adopted the aggregate approach, which requires a court to “compare the total original sentence to the total sentence after resentencing. [I]f the new sentence is greater that the original sentence, the new sentence is considered more severe.”

Some other States, he points out have adopted the “remainder aggregate” approach that compares “the district court’s aggregate sentence on the nonreversed counts after appeal with the original sentence imposed on those same counts before appeal”

Finally, Justice Carley points out that a few states have adopted what he calls the “pure count-by-count approach,” which requires that counts be considered separately. We find out in the minority opinion that Georgia, before this opinion came out, was once one of those states.

Without so much as a tip of the hat to our precedent, the majority points out that the aggregate approach is the one that is most pragmatic for the trial judge to use. Of course, convenience and practicality are not Constitutional principles (far from it). Yet, in response to the minority’s reasoning that mandatory sentencing and parole consideration may increase the net amount of time a defendant may serve under an aggregate scheme, he dismissively notes that such concerns are “not relevant as the statutes have no constitutional implications in that context.”

Turning back to the “practicalities” of the new rule, the majority reasons that there is “a minimal likelihood of vindictiveness.” Applying the law to the new facts, the majority points out that, in the aggregate, the defendant received 50 years to serve rather than the initial 60 even if he got more time than before on one count. He calls this sentence “significantly less severe,” which might be the case if the defendant were Highlander.

More Stuff to Think About

This has become a very fractured Court. Since Georgia became a one-party system, the Court has changed. The new guard is not particularly a slave to principles of stare decisis. Though the court is a more exciting place — oral argument is certainly more fun there than it’s ever been — it’s also tougher to practice law. Trial lawyers cannot easily advise clients based upon the law when even settled law may not be settled. Also, it is likely going to become more difficult to use precedent to convince trial judges of what the law requires when so much precedent is a moving target.