State v. Miller

498 	284 NEBRASKA REPORTS
the four individuals—Nave, Vann, McGuire, and Thomas—as
being “in proximity” to each other and the Sebring. One wit-
ness also testified that Vann and Thomas had been whispering
back and forth near the auto shop and that they “met” with
Nave before he entered the shop.
Furthermore, the fact that Nave entered the auto shop spe-
cifically demanding the drugs indicates that he was working
with the other individuals. Although McGuire and Vann had
purchased drugs from Sanchez through Ayala-Martinez before,
there is no evidence that Nave was involved in the prior deal.
If Nave had not been conspiring with the others to steal and
eventually distribute the cocaine, then he likely would not have
known that the October 22, 2010, drug buy was going to take
place. These facts presented sufficient evidence for a jury to
conclude beyond a reasonable doubt that Nave worked with
others to commit the crime.
Finally, a rational jury could obviously conclude beyond a
reasonable doubt that Nave’s actions constituted an “overt act”
in furtherance of the conspiracy. As such, the evidence is suf-
ficient to uphold Nave’s conviction for criminal conspiracy.
We affirm Nave’s convictions and sentences.
A ffirmed.
H eAvicAn, C.J., not participating.
StAte of nebrASkA, Appellee, v.
dAniel c. miller, AppellAnt.
822 N.W.2d 360
Filed October 12, 2012. 	No. S-12-019.
1. Sentences: Due Process: Appeal and Error. Whether the district court’s resen-
tencing of a defendant following a successful appeal violates the defendant’s due
process rights presents a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusions.
3. Due Process: New Trial: Convictions: Sentences. Due 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.
4. Constitutional Law: Due Process: Convictions: Sentences: Appeal and Error.
Since the fear of vindictiveness may unconstitutionally deter a defendant’s
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

STATE v. MILLER 	499
Cite as 284 Neb. 498
exercise of the right to appeal or collaterally attack his first conviction, due proc-
ess also requires that a defendant be freed of apprehension of such a retaliatory
motivation on the part of the sentencing judge.
5. New Trial: Judges: Sentences. In order to ensure the absence of a retaliatory
motivation, whenever a judge imposes a more severe sentence upon a defendant
after a new trial, the reasons for his doing so must affirmatively appear. Those
reasons must be based upon objective information concerning identifiable con-
duct on the part of the defendant occurring after the time of the original sentenc-
ing proceeding.
6. Judges: Juries: Sentences: Presumptions. Since its holding in North Carolina
v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), the U.S.
Supreme Court has limited the presumption of vindictiveness to cases that
involve the same judge or jury handing down both the initial sentence and the
second, harsher sentence.
7. Trial: Sentences. The possibility of a higher sentence is a legitimate concomitant
of the retrial process.
8. Sentences: Presumptions: Proof. When the presumption of vindictiveness is not
applied, the burden remains with the defendant to prove actual vindictiveness.
9. Courts: Sentences. Traditionally, a sentencing court is accorded very wide dis-
cretion in determining an appropriate sentence.
10. Sentences. When imposing a sentence, a sentencing judge can consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the offense, and
(8) the amount of violence involved in the commission of the crime.
11. 	____. Ultimately, the appropriateness of a sentence is necessarily a subjective
judgment.
12. Judges: Sentences: Presumptions: Appeal and Error. The vindictiveness pre-
sumption does not apply when a judge, different from the original sentencing
judge, sentences a defendant to a harsher sentence after a successful appeal.
Appeal from the District Court for Douglas County: pAtriciA
A. lAmberty, Judge. Affirmed.
Kevin A. Ryan for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
H eAvicAn, c.J., WrigHt, connolly, StepHAn, mccormAck,
miller-lermAn, and cASSel, JJ.
mccormAck, J.
NATURE OF CASE
After successfully appealing his conviction for first degree
murder and use of a weapon to commit a felony, Daniel C.

500 	284 NEBRASKA REPORTS
Miller pled guilty upon remand to manslaughter and use of
a weapon to commit a felony. Miller asserts that the second
judge was vindictive because of Miller’s successful appeal
and, thus, imposed a harsher sentence for the weapons con-
viction in violation of Miller’s due process rights. At issue
is whether the presumption of vindictiveness applies when a
different judge gives a greater sentence after the defendant
successfully appeals. We hold that such a presumption does
not apply when there is a different sentencing judge after a
successful appeal.
BACKGROUND
A jury convicted Miller of first degree murder and use of a
weapon to commit a felony. The district court sentenced Miller
to life in prison on the murder conviction and 10 years in
prison on the weapons conviction, to be served consecutively.
On appeal, we overturned Miller’s convictions because of an
error in the jury instructions.1
The cause was remanded and assigned to a different dis-
trict court judge. After plea bargain negotiations, Miller pled
guilty to the lesser count of manslaughter and use of a weapon
to commit a felony. Prior to sentencing, the district court
reviewed the probation file, the police reports, the presentence
investigation report, and the briefs and pleadings of the case.
Based on its findings, the district court sentenced Miller to the
maximum of 20 years in prison for manslaughter and 30 to 50
years in prison for the weapons conviction.
ASSIGNMENTS OF ERROR
Miller assigns that his sentence for the weapons conviction
should be overturned for two reasons: (1) The district court’s
reasoning fails to overcome the presumption of vindictiveness
that arises when the second sentence is significantly harsher
than the original sentence and (2) the lack of affirmative expla-
nation supporting the harsher sentence demonstrates actual
vindictiveness.
1 See State v. Miller, 281 Neb. 343, 798 N.W.2d 827 (2011).

STATE v. MILLER 	501
Cite as 284 Neb. 498
STANDARD OF REVIEW
[1,2] Whether the district court’s resentencing of a defend-
ant following a successful appeal violates the defendant’s due
process rights presents a question of law.2 When reviewing
questions of law, an appellate court resolves the questions inde-
pendently of the lower court’s conclusions.3
ANALYSIS
Miller contends that the increased sentence on the weapons
conviction violated his right to due process of law because it
was vindictive. In support, Miller points to the U.S. Supreme
Court opinion in North Carolina v. Pearce,4 which gives a
defendant the presumption of vindictiveness when a defend-
ant’s sentence is increased after a successful appeal.
[3-5] In Pearce, the U.S. Supreme Court overturned a
harsher sentence because the sentence was the product of the
judge’s vindictiveness for the defendant’s successful appeal of
the first conviction.5 The Court stated:
Due process of law, then, 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. And since the fear of such
vindictiveness may unconstitutionally deter a defendant’s
exercise of the right to appeal or collaterally attack his
first conviction, due process also requires that a defendant
be freed of apprehension of such a retaliatory motivation
on the part of the sentencing judge.
In order to [en]sure the absence of such a motivation,
we have concluded that whenever a judge imposes a
more severe sentence upon a defendant after a new trial,
2 See, State v. King, 275 Neb. 899, 750 N.W.2d 674 (2008); State v. Bruna,
14 Neb. App. 408, 710 N.W.2d 329 (2006), affirmed 272 Neb. 313, 721
N.W.2d 362.
3 State v. Kibbee, ante p. 72, 815 N.W.2d 872 (2012).
4 North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656
(1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109
S. Ct. 2201, 104 L. Ed. 2d 865 (1989).
5 Id.

502 	284 NEBRASKA REPORTS
the reasons for his doing so must affirmatively appear.
Those reasons must be based upon objective informa-
tion concerning identifiable conduct on the part of the
defendant occurring after the time of the original sentenc-
ing proceeding.6
Since Pearce, the U.S. Supreme Court has applied the
presumption of vindictiveness to sentences increased after a
successful appeal of the prior conviction.7 However, the pre-
sumption has been limited since Pearce to cases which pose a
reasonable likelihood that the increased sentence is the product
of actual vindictiveness.8 Without the presumption, the defend-
ant is burdened with showing actual vindictiveness.9
preSumption of vindictiveneSS
[6] Miller contends the presumption of vindictiveness is
applicable because he received a harsher sentence for his con-
viction of use of a weapon to commit a felony. We disagree.
Since its holding in Pearce, the U.S. Supreme Court has lim-
ited the presumption of vindictiveness to cases that involve the
same judge or jury handing down both the initial sentence and
the second, harsher sentence.10
In Colten v. Kentucky,11 the U.S. Supreme Court refused
to apply the presumption of vindictiveness to a two-tiered
criminal court. In the State of Kentucky, a defendant accused
of a misdemeanor is tried in an inferior court. If convicted,
the defendant has an absolute right to a trial de novo in the
superior court of general criminal jurisdiction. In Colten, the
6 Id., 395 U.S. at 725-26.
7 Wasman v. United States, 468 U.S. 559, 104 S. Ct. 3217, 82 L. Ed. 2d 424
(1984).
8 Alabama v. Smith, supra note 4.
9 Id.
10 Alabama v. Smith, supra note 4; Texas v. McCullough, 475 U.S. 134, 106
S. Ct. 976, 89 L. Ed. 2d 104 (1986); Wasman v. United States, supra note
7; Chaffin v. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714
(1973); Colten v. Kentucky, 407 U.S. 104, 92 S. Ct. 1953, 32 L. Ed. 2d 584
(1972).
11 Colten v. Kentucky, supra note 10.

STATE v. MILLER 	503
Cite as 284 Neb. 498
defendant was sentenced to a greater punishment after his new
trial in the superior court. The U.S. Supreme Court found that
the possibility of vindictiveness is not inherent in the Kentucky
two-tiered system. Rather, “[i]t may often be that the supe-
rior court will impose a punishment more severe . . . . But it
no more follows that such a sentence is a vindictive penalty
for seeking a superior court trial than that the inferior court
imposed a lenient penalty.”12
[7] In Chaffin v. Stynchcombe,13 the presumption was held
inapplicable when the sentences were determined by two dif-
ferent juries. The U.S. Supreme Court stated that the second
jury will have no personal stake and no motivation to engage in
self-vindication after a defendant’s successful appeal.14 Rather,
the possibility of a higher sentence is a legitimate concomitant
of the retrial process.15
In Texas v. McCullough,16 a jury originally sentenced the
defendant, but after a successful appeal and retrial, the trial
judge imposed a harsher sentence on the defendant. The U.S.
Supreme Court found the presumption too speculative because
different sentencers, a judge and a jury, assessed the varying
sentences and thus, a sentence increase cannot truly be said to
have been given.17
The U.S. Supreme Court in McCullough indicated in dicta
that it would not extend the presumption to cases when there
were two different sentencing judges.18 The Court stated:
Pearce itself apparently involved different judges presid-
ing over the two trials, a fact that has led some courts to
conclude by implication that the presumption of vindic-
tiveness applies even where different sentencing judges
are involved. That fact, however, may not have been
12 Id., 407 U.S. at 117.
13 Chaffin v. Stynchcombe, supra note 10.
14 Id.
15 Id.
16 Texas v. McCullough, supra note 10.
17 Id.
18 Id.

504 	284 NEBRASKA REPORTS
drawn to the Court’s attention and does not appear any-
where in the Court’s opinion in Pearce. Clearly the Court
did not focus on it as a consideration for its holding. . . .
Subsequent opinions have also elucidated the basis for the
Pearce presumption. We held in Chaffin v. Stynchcombe,
412 U. S. 17 (1973), for instance, that the presumption
derives from the judge’s “personal stake in the prior
conviction,” . . . a statement clearly at odds with reading
Pearce to answer the two-sentencer issue. We therefore
decline to read Pearce as governing this issue.19
The Court’s refusal to read Pearce to govern the two-
sentencer issue, along with the policy reasons for the presump-
tion, casts a strong argument against extending the presumption
to sentences handed down by a different judge after appeal.
Here, the procedural history does not support Miller’s posi-
tion that his successful appeal was the motivation for the
greater sentence. After his appeal, a different district court
judge handled the plea bargain and sentencing. There is no
reason to presume the second judge had a personal stake in the
prior conviction. Simply put, the possibility of vindictiveness
is not inherent.20 Absent evidence to the contrary, a harsher
sentence is not presumed to be vindictive, because the sentence
could be the product of the second judge’s differing judicial
philosophy. Such is a natural consequence when judges are
allowed to use their discretion in sentencing.21
Therefore, we conclude that the presumption of vindictive-
ness does not apply when there are two different sentencers.
ActuAl vindictiveneSS
[8] When the presumption of vindictiveness is not applied,
the burden remains with the defendant to prove actual vin-
dictiveness.22 Miller gives four reasons to demonstrate that
his weapons sentence was actually vindictive. We reject each
19 Id., 475 U.S. at 140-41 n.3 (citations omitted).
20 See Colten v. Kentucky, supra note 10.
21 State v. Bruna, supra note 2, citing State v. Anglemyer, 269 Neb. 237, 691
N.W.2d 153 (2005).
22 Alabama v. Smith, supra note 4.

STATE v. MILLER 	505
Cite as 284 Neb. 498
reason and find that Miller has failed to meet his burden of
demonstrating actual vindictiveness.
[9-11] In Wasman v. United States,23 the U.S. Supreme Court
held that due process does not forbid enhanced sentences.
Rather, it only forbids enhancement motivated by actual vin-
dictiveness toward the defendant for having exercised a guar-
anteed right.24 Traditionally, a sentencing court is accorded
very wide discretion in determining an appropriate sentence.25
When imposing a sentence, a sentencing judge can consider
the defendant’s (1) age, (2) mentality, (3) education and expe-
rience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation for
the offense, as well as (7) the nature of the offense, and (8) the
amount of violence involved in the commission of the crime.26
Ultimately, the appropriateness of a sentence is necessarily a
subjective judgment.27
For his first argument, Miller asserts that the increased sen-
tence on the weapons conviction from 10 years to 30 to 50
years in prison demonstrates vindictiveness. We disagree. The
increased sentence alone is not sufficient evidence of actual
vindictiveness.28
Second, according to Miller, the district court judge demon-
strated actual vindictiveness when she stated, “as the state said,
he did get a benefit of that, a huge benefit, by pleading to man-
slaughter.” However, such a conclusion by Miller is grounded
in pure speculation. Prior to sentencing, the district court judge
had reviewed the probation file, the police reports, the presen-
tence investigation report, and the briefs and pleadings of the
case. The district court judge understood the seriousness of the
crime, and her statement could merely indicate the belief that
Miller received leniency by pleading guilty to manslaughter.
23 Wasman v. United States, supra note 7.
24 Id.
25 Id.
26 State v. Thurman, 273 Neb. 518, 730 N.W.2d 805 (2007).
27 See State v. Aldaco, 271 Neb. 160, 710 N.W.2d 101 (2006).
28 See North Carolina v. Pearce, supra note 4.

506 	284 NEBRASKA REPORTS
Nothing about that statement, in and of itself, indicates actual
vindictiveness for Miller’s successful appeal of his first degree
murder conviction.
Third, Miller alleges that the sentence for the conviction of
use of a weapon to commit a felony should not increase when
its companion conviction of first degree murder is reduced to
manslaughter. We reject this argument as legally irrelevant.
The crime of using a deadly weapon to commit a felony, as
enacted under Neb. Rev. Stat. § 28-1205 (Cum. Supp. 2010),
is an independent offense from the underlying felony.29 The
Legislature’s purpose in enacting § 28-1205 was to discour-
age individuals from employing deadly weapons in order to
facilitate or effectuate the commission of felonies and to dis-
courage persons from carrying deadly weapons while they
commit felonies.30
Based on the district court’s review of the available record
for sentencing, the second district court judge could quite read-
ily find that Miller’s use of a firearm to kill another man justi-
fied a severe punishment under § 28-1205. Contrary to Miller’s
assertion, pleading guilty to the lesser charge of manslaughter
does not demand leniency on the sentence for using a weapon
to commit a felony.
And finally, Miller asserts the district court failed to suf-
ficiently explain the drastic increase in the sentence. Such an
argument presupposes that the burden is on the district court to
justify the increased sentence. The burden shifts to the district
court only after the presumption of vindictiveness is applied.31
Absent the presumption, the burden is on the defendant to
show actual vindictiveness.32
Nothing in our review of the record demonstrates that the
district court based the second sentences on impermissible
considerations or vindictiveness. In light of the evidence pro-
vided for the guilty plea, the second judge apparently viewed
29 State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997).
30 State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).
31 North Carolina v. Pearce, supra note 4.
32 Alabama v. Smith, supra note 4.

STATE EX REL. COUNSEL FOR DIS. v. JORGENSON 	507
Cite as 284 Neb. 507
the proper sentence for the weapons conviction differently
than the original sentencing judge. The possibility of a higher
sentence is a legitimate risk of resentencing33 and is a natural
consequence when judges are allowed to use their discretion in
sentencing.34 Therefore, we conclude that Miller has failed to
meet his burden of proving actual vindictiveness by the second
district court judge.
CONCLUSION
[12] We conclude that the vindictiveness presumption does
not apply when a judge, different from the original sentenc-
ing judge, sentences a defendant to a harsher sentence after
a successful appeal. Furthermore, we reject Miller’s conten-
tion that the second district court judge acted with actual
vindictiveness.
A ffirmed.
33 Chaffin v. Stynchcombe, supra note 10.
34 State v. Bruna, supra note 2.
StAte of nebrASkA ex rel. counSel for diScipline
of tHe nebrASkA Supreme court, relAtor, v.
Jeremy c. JorgenSon, reSpondent.
822 N.W.2d 367
Filed October 12, 2012. 	No. S-12-269.
Original action. Judgment of public reprimand.
H eAvicAn, c.J., WrigHt, connolly, StepHAn, mccormAck,
miller-lermAn, and cASSel, JJ.
per curiAm.
INTRODUCTION
Respondent, Jeremy C. Jorgenson, was admitted to the
practice of law in the State of Nebraska on April 15, 2008.
At all relevant times, he was engaged in the private prac-
tice of law in Omaha, Nebraska. On April 3, 2012, the
Counsel for Discipline of the Nebraska Supreme Court filed