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Final Copy 287 Ga. 513 S09G1927. ADAMS v. THE STATE. CARLEY, Presiding Justice. After a jury trial, Appellant Tavins Lee Adams was found guilty of child molestation, aggravated child molestation, aggravated sodomy, and enticing a child for indecent purposes. All crimes arose out of a single incident between Adams and a minor child while both were in a parked car. After the trial court merged the aggravated child molestation count into the aggravated sodomy count, Adams was initially sentenced to consecutive 20year terms of imprisonment for child molestation, aggravated sodomy, and enticing a child for indecent purposes, totaling 60 years. Adams subsequently moved for a new trial, arguing that the separate convictions for child molestation and aggravated sodomy should have been merged during sentencing. The trial court granted the motion for new trial in part, ruling that the child molestation count merged into the conviction for aggravated sodomy. After a second sentencing hearing, Adams was sentenced to 30

years for aggravated sodomy and to a consecutive 20-year term for enticing a child for indecent purposes, resulting in an aggregate sentence of 50 years. Adams appealed to the Court of Appeals contending, among other things, that the trial court impermissibly modified his sentence for aggravated sodomy because the new sentence of 30 years was more severe than the original sentence of 20 years. Adams v. State, 299 Ga. App. 39, 42 (4) (681 SE2d 725) (2009). The Court of Appeals noted that "[p]ursuant to North Carolina v. Pearce, 395 U. S. 711 (89 SC 2072, 23 LE2d 656) (1969), a trial court is limited in its ability to increase a defendant's sentence upon resentencing." Adams v. State, supra. However, in a whole court unanimous opinion, the Court of Appeals affirmed Adams' new sentence, holding that it was not more severe because the new aggregate sentence for all of his convictions was ten years fewer than the initial aggregate sentence. Adams v. State, supra at 43 (4). Relying on Alabama v. Smith, 490 U. S. 794, 799800 (109 SC 2201, 104 LE2d 865) (1989), and Curry v. State, 248 Ga. 183, 186 (4) (281 SE2d 604) (1981), the Court of Appeals also held that "because the trial court granted Adams' request to merge his conviction for child molestation, contrary to the request of the state, immediately prior to
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resentencing Adams, there is no reasonable likelihood that the sentence was the product of actual vindictiveness." Adams v. State, supra. 1. We

granted certiorari to consider the appropriate analysis for determining whether a trial court's resentencing of a defendant results in a more severe sentence under North Carolina v. Pearce, supra. In that case, the Supreme Court of the United States held that [d]ue process of law . . . requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. . . . [Therefore,] whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. North Carolina v. Pearce, supra at 725-726 (II) (C). Thus, the Court created a presumption of vindictiveness whenever a more severe sentence is imposed after a new trial, "which may be overcome only by objective information in the record justifying the increased sentence." United States v. Goodwin, 457 U. S. 368, 374 (II) (102 SC 2485, 73 LE2d 74) (1982). The Supreme Court, however, in subsequent cases, has narrowed its holding in Pearce, stating that due process does not require an absolute bar on the increase of sentences after re-conviction or resentencing, but seeks only to prevent "increased

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sentences when that increase was motivated by vindictiveness on the part of the sentencing judge." Texas v. McCullough, 475 U. S. 134, 137 (II) (106 SC 976, 89 LE2d 104) (1986). The evil sought to be prevented was "vindictiveness of a sentencing judge . . . rather than simply enlarged sentences after a new trial." Texas v. McCullough, supra at 138 (II). In the present case, Adams, in a motion for new trial, requested the merger of the child molestation charge into the aggravated sodomy count for sentencing purposes. The trial court itself granted the merger request and ordered a new sentencing hearing, which resulted in the sentence now at issue. In Texas v. McCullough, supra, under similar facts, the Supreme Court of the United States held that the Pearce presumption was inapplicable. The Supreme Court stated that where the trial court itself concludes that an error has been made and grants a motion for new trial, there exists no basis for a presumption of vindictiveness. . . . "(U)nlike the judge who has been reversed," the trial judge here had "no motivation to engage in self-vindication." [Cit.] . . . In granting [the defendant's] new trial motion, [the trial court] went on record as agreeing that his "claims" had merit. Presuming vindictiveness on this basis alone would be tantamount to presuming that a judge will be vindictive towards a defendant merely because he seeks an acquittal. . . . The presumption of Pearce does not apply in situations where the possibility of
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vindictiveness is this speculative, particularly since the presumption may often "operate in the absence of any proof of an improper motive and thus . . . block a legitimate response to criminal conduct," [cit.]. Texas v. McCullough, supra at 138-139 (II). The dissent claims that the Supreme Court held the Pearce presumption inapplicable in Texas v. McCullough, supra, not only because the trial judge herself ruled that an error had been made that warranted a new sentence but also because different sentencers were involved and there were nonvindictive reasons on the record. However, the Supreme Court clearly makes an initial holding of the inapplicability of the Pearce presumption based solely on the fact that the trial judge herself concluded that there was error. The Supreme Court states that this fact alone creates a situation "where the possibility of vindictiveness is [too] speculative" for the Pearce presumption to apply, and, in fact, "not even `apprehension of [vindictiveness] on the part of the sentencing judge' [cit.], could be present in this case." Texas v. McCullough, supra at 139 (II). The Supreme Court did not discuss the different sentencers involved in the case or the nonvindictive reasons on the record until after this initial holding and prefaced the subsequent discussion by describing it as an additional

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reason that the Pearce presumption was inapplicable in the case. Texas v. McCullough, supra at 140 (II). See also Rock v. Zimmerman, 959 F2d 1237, 1257 (VI) (3rd Cir. 1992) (stating that the Supreme Court in Texas v. McCullough, supra, held the Pearce presumption inapplicable where the trial court itself granted the defendant's motion for new trial and also held that the fact that the case involved two different sentencers was "an alternative, independent basis for finding the Pearce presumption inapposite"), overruled on other grounds, Kontakis v. Beyer, 19 F3d 110, 116, fn. 9 (II) (C) (3rd Cir. 1994). Therefore, as held by the Supreme Court, the Pearce presumption of vindictiveness is inapplicable where the trial court itself concludes that an error has been made that warrants a new sentence. See also Curry v. State, supra (holding that, where the trial judge, recognizing his own error, increased a defendant's sentence upon resentencing, "there is no suggestion of vindictiveness against the defendant for having exercised any legal right"). In the present case, therefore, since the trial court itself ordered a new sentencing hearing upon a partial grant of the motion for new trial filed by Adams, the Pearce presumption is inapplicable. Compare Chambers v. State, 213 Ga. App. 414, 418 (5) (444 SE2d 820) (1994) (distinguishing Texas v.
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McCullough, supra, where the new sentence "came about because the trial judge herself concluded that it was required"). Thus, the new sentence imposed on Adams is proper, and the judgment of the Court of Appeals is affirmed. 2. Although our holding above resolves the Pearce presumption analysis in the present case, we also address the question upon which we granted certiorari in this case, which was to consider the appropriate analysis for determining whether a trial court's resentencing of a defendant results in a more severe sentence under North Carolina v. Pearce, supra. Although the Supreme Court of the United States has not spoken on this issue, a number of federal and state appellate courts have addressed it and have developed several approaches to aid a trial court's determination. 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. If the new sentence is greater than the original sentence, the new sentence is considered more severe." United States v. Campbell, 106 F3d 64, 68 (I) (B) (5th Cir. 1997). See also United States v. Pimienta-Redondo, 874 F2d 9, 15-16 (II) (B) (1st
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Cir. 1989); Kelly v. Neubert, 898 F2d 15, 18 (3rd Cir. 1990); United States v. Gray, 852 F2d 136, 138 (I) (4th Cir. 1988); United States v. Sullivan, 967 F2d 370, 374 (II) (B) (1) (10th Cir. 1992); United States v. Mancari, 914 F2d 1014, 1022 (III) (7th Cir. 1990); United States v. Bay, 820 F2d 1511, 1514 (II) (9th Cir. 1987); Tice v. State, 475 S2d 589, 590 (Ala. Crim. App. 1984); People v. Hill, 230 Cal. Rptr. 109, 111 (Cal. App. 1986); White v. State, 576 A2d 1322, 1329 (IV) (Del. 1990); State v. Keefe, 573 A2d 20, 22 (Me. 1990); State v. King, 750 NW2d 674, 678 (Neb. 2008); State v. Martin, 973 A2d 56, 60 (II) (Vt. 2009). Two federal courts of appeal have adopted a "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." United States v. Campbell, supra. See also United States v. Monaco, 702 F2d 860, 884-885 (V) (B) (11th Cir. 1983); United States v. Markus, 603 F2d 409, 413 (2d Cir. 1979). Only a handful of our sister state courts have adopted the pure count-bycount approach, which requires a court to compare the sentences on each count of an indictment separately. Wilson v. State, 170 P3d 975, 981 (Nev. 2007). See also People v. Sanders, 827 NE2d 17, 22 (I) (Ill. App. 2005).
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One reason cited by the majority of courts that have adopted the aggregate approach is that this analysis "best reflects the realities faced by [trial] judges who sentence a defendant on related counts of an indictment." United States v. Campbell, supra. "[W]hen a defendant is found guilty on a multicount indictment, there is a strong likelihood that the [trial] court will craft a disposition in which the sentences on the various counts form part of an overall plan." United States v. Pimienta-Redondo, supra at 14 (II) (B). In Georgia, our statutory law and decisional jurisprudence permit a sentencing judge to consider all lawfully presented factors of the crimes committed and the characteristics of the defendant convicted so that the sentence assigned properly fits both the crime and the criminal. See OCGA

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