State v. King

state of nebRaska , aPPellee , v .
donell king , aPPellant .
750 N.W.2d 674
Filed June 13, 2008. 	No. S-07-458.
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 an appellate court reviews questions of law,
it resolves the questions independently of the lower court’s conclusions.
3. Sentences: Judges. Under the U.S. Supreme Court’s decision in North Carolina
v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. ed. 2d 656 (1969), a judge who
originally sentenced a defendant cannot impose a more severe punishment upon
resentencing unless (1) the new sentence is based upon objective information con-
cerning identifiable conduct on the part of the defendant occurring after the time
of the original sentencing proceeding and (2) the factual basis establishing such
conduct is included in the record.
4. Sentences: Presumptions. The presumption of vindictiveness can apply to a
remand for resentencing after a defendant has successfully challenged the sentence
itself and not the conviction.
5. Due Process: Presumptions. The due process presumption of vindictiveness
applies only in cases in which a reasonable likelihood of vindictiveness exists.
6. Sentences. In Nebraska, unless prohibited by statute or unless the sentencing court
states otherwise when it pronounces the sentences, multiple sentences imposed at
the same time run concurrently with each other.
Appeal from the district Court for douglas County: J ohn d.
haRtigan , JR., Judge. Affirmed.
James J. regan for appellant.
Jon Bruning, Attorney General, and George r. Love for
appellee.
wRight, connolly, geRRaRd, stePhan, mccoRmack, and
milleR-leRman, JJ.
connolly, J.
SUMMArY
In North Carolina v. Pearce,1 the U.S. Supreme Court held
that due process imposes a presumption of vindictiveness when,
1 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).
STATe v. kING 	899
Cite as 275 Neb. 899
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

900 	275 NeBrASkA rePOrTS
following a defendant’s successful appeal, a sentencing judge
orders a more severe sentence that is not justified by objective
evidence in the record since the original sentencing. Appellant,
donell king, contends that because he had successfully appealed
his habitual criminal status in a previous appeal, the district
court was presumptively vindictive when it resentenced him on
remand to a greater aggregate minimum term.
king’s three felony sentences were originally subject to 10-
year mandatory minimum terms under the habitual criminal stat-
utes. Because the district court imposed consecutive sentences,
king’s aggregate mandatory minimum term was 30 years. On
remand, the district court resentenced king to consecutive terms
of 20 to 25 years’ imprisonment. It reasoned that without the
mandatory minimum requirement, king would still be eligible
for parole in 30 years and would serve the same time in prison.
We affirm because the Pearce presumption does not apply.
The district court’s sentences on remand reflect a calculated
effort to craft sentences functionally equivalent to its original
sentencing intent. The sentences do not increase king’s prison
time. The enlarged minimum term is neither more severe in
effect nor a sentencing circumstance that raises a reasonable
likelihood of vindictiveness.
BACkGrOUNd
This is king’s third appeal from the district court’s original
sentences for first degree sexual assault, kidnapping, and robbery.
The district court originally sentenced king to three consecutive
sentences of 10 to 25 years’ imprisonment. In both king’s first
and second appeals, we held that the State had failed to prove
king’s habitual criminal status.2 In each appeal, we vacated the
enhanced sentences and remanded for resentencing.
At king’s third enhancement hearing, the district court con-
cluded that the State had again failed to prove king’s habitual
criminal status. Commenting on why the sentences it was
about to impose did not increase king’s original sentences, the
court stated:
2 See, State v. King, 272 Neb. 638, 724 N.W.2d 80 (2006); State v. King, 269
Neb. 326, 693 N.W.2d 250 (2005).

The [e]ffect on the actual time that . . . king is going to
serve is going to be non-existent. [king] was sentenced . . .
for the harm that was caused and the danger that he posed
to public safety. . . . [T]he habitual criminal designation
simply shifted the range of possible sentences that could
be imposed. And because all three of the convictions here
were already Class III felonies, it doesn’t have an impact
on the time that he would be required to serve, as it might
have in a Class IV or a Class III(a) felony.
The court then proceeded to sentencing and stated that it
intended “to impose the same amount of actual prison time.”
king objected to any increase in his three consecutive terms
because there was no new evidence to justify an increase in
his sentences. The prosecutor argued that king’s offenses had
been extremely violent and that to impose the same consecu-
tive terms without the mandatory minimum terms under the
habitual criminal statutes would give king an earlier parole
eligibility date.
In response to these arguments, the court calculated that
under king’s original three consecutive terms of 10 to 25 years,
he would have served at least 30 years’ imprisonment. The court
based its calculation on the habitual criminal statutes, which
mandate a minimum sentence of 10 years for each felony con-
viction. The court further calculated that under the original sen-
tences, if king did not lose good time credit, he would have
reached his mandatory release date in 371⁄2 years, or one-half of
his 75-year aggregate maximum term. The court concluded that
king’s original sentences imposed 30 to 371⁄2 years in actual
prison time.
The court then stated: “So my task then is to replicate the
sentence. And I’ve done that by signing a sentencing order on
each of the three counts that . . . king be incarcerated for an
indeterminate period of 20 to 25 years.” The court reasoned that
without the mandatory minimum sentences, king would still be
eligible for parole in 30 years. Under the new consecutive terms,
the court also concluded that he would still reach his mandatory
release date in 371⁄2 years, assuming he did not lose good time
credit. The court stated that “the consecutive sentences of 20 to
25 years replicate the earlier sentence[s] in real time.”
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ASSIGNMeNT OF errOr
king assigns that the district court denied him due process
when it imposed greater sentences after his successful appeal of
the court’s earlier sentences.
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.3 When we review
questions of law, we resolve the questions independently of the
lower court’s conclusions.4
ANALYSIS
king contends that the sentences he received after he success-
fully appealed his habitual criminal enhancement were effec-
tively harsher sentences. He claims these sentences triggered the
presumption of vindictiveness under the U.S. Supreme Court’s
decision in Pearce.5
PResumPtion of vindictiveness undeR P earce
[3] In Pearce, the U.S. Supreme Court held that due process
prohibits imposing a more severe sentence at retrial if it is
motivated by vindictiveness toward a defendant for having suc-
cessfully attacked his conviction.6 The U.S. Supreme Court has
characterized its decision in Pearce as applying “a presumption
of vindictiveness, which may be overcome only by objective
information in the record justifying the increased sentence.”7 Yet
Pearce is not an absolute bar against a trial judge’s imposing
an increased sentence following a successful appeal; a sentenc-
ing judge has wide discretion in determining an appropriate
3 See, State v. Wilson, 252 Neb. 637, 564 N.W.2d 241 (1997); State v. Bruna,
14 Neb. App. 408, 710 N.W.2d 329 (2006), affirmed 272 Neb. 313, 721
N.W.2d 362.
4 State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
5 Pearce, supra note 1.
6 See Wilson, supra note 3 (discussing Pearce, supra note 1).
7 United States v. Goodwin, 457 U.S. 368, 374, 102 S. Ct. 2485, 73 L. ed. 2d
74 (1982).

sentence.8 But the Pearce Court held that a judge who had
originally sentenced a defendant could not impose a more
severe punishment upon resentencing unless certain conditions
were present: (1) The new sentence must be based upon objec-
tive information concerning the defendant’s identifiable conduct
occurring after the time of the original sentencing proceeding,
and (2) the factual basis establishing such conduct must be
included in the record.9
[4] The presumption of vindictiveness under Pearce can also
apply to a remand for resentencing after a defendant has suc-
cessfully challenged the sentence itself and not the conviction.10
It does not apply if a different judge resentences the defendant
after the defendant successfully appeals the first sentence.11 But
here the same judge resentenced king.
[5] The Pearce presumption is directed at the “vindictiveness
of a sentencing judge,” not simply enlarged sentences.12 Because
of the presumption’s severity, “the Court has [presumed an
improper vindictive motive] only in cases in which a reasonable
likelihood of vindictiveness exists.”13 Obviously, the presump-
tion does not apply if the circumstances do not present a reason-
able likelihood of vindictiveness. For example, the presumption
does not apply when a court vacates its own erroneous sentence
under a sentencing statute and resentences the defendant to an
arguably harsher sentence to comply with the statute.14 A court
must “look to the need, under the circumstances, to ‘guard
against vindictiveness in the resentencing process.’”15 “Where
the prophylactic rule of Pearce does not apply, the defendant
8 See Wilson, supra note 3.
9 See, id.; State v. Flye, 245 Neb. 495, 513 N.W.2d 526 (1994).
10 See State v. Lopez, 217 Neb. 719, 350 N.W.2d 563 (1984).
11 See Bruna, supra note 3.
12 See Texas v. McCullough, 475 U.S. 134, 138, 106 S. Ct. 976, 89 L. ed. 2d
104 (1986).
13 Goodwin, supra note 7, 457 U.S. at 373.
14 See State v. Blankenship, 195 Neb. 329, 237 N.W.2d 868 (1976). See, also,
State v. Egger, 237 Neb. 688, 467 N.W.2d 411 (1991).
15 McCullough, supra note 12, 475 U.S. at 138.
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904 	275 NeBrASkA rePOrTS
may still obtain relief if he can show actual vindictiveness upon
resentencing.”16 king, however, does not argue that the record
reflects proof of actual vindictiveness.
nebRaska case law aPPlying P earce PResumPtion
In a habitual criminal proceeding, Pearce requires reversal
of an increase in the aggregate maximum sentence after a suc-
cessful appeal of an unlawful sentence.17 To avoid reversal, the
district court must justify such an increase with new evidence
at the resentencing hearing about the offense or the defendant.18
We have also held that an increase in the aggregate minimum
term on remand violated Pearce. In State v. McArthur,19 the
defendant pleaded guilty to two Class IV felony offenses and
one Class III felony offense. The district court sentenced him to
three consecutive terms of imprisonment: 1 to 5 years for each
Class IV felony and 6 to 20 years for the Class III felony. On
appeal, we vacated the judgment and sentences because the court
failed to advise the defendant that one of his sentences must be
served consecutively. We remanded for further proceedings.
On remand, the State dismissed one of the Class IV charges.
For the two remaining offenses, the district court increased the
terms of the consecutive sentences: 20 months to 5 years for the
remaining Class IV felony and 80 months to 20 years for the
Class III felony.
In his second appeal, the defendant assigned as error the
court’s increase in the minimum sentences for the two remain-
ing felonies. The aggregate maximum sentence for the two
offenses was the same. We stated that the sentencing court had
increased the defendant’s combined minimum sentence for the
two offenses by 16 months. Applying Pearce, we concluded
that “the record is devoid of any explanation for the increase
in the minimum sentences. Therefore, the increased minimum
16 Id.
17 See Lopez, supra note 10.
18 See id.
19 State v. McArthur, 230 Neb. 653, 432 N.W.2d 839 (1988).

sentences cannot withstand constitutional due process scrutiny
and must be modified.”20
We believe McArthur is distinguishable. The increase in the
defendant’s aggregate minimum sentence would have length-
ened the time he served in prison before being eligible for
parole. That is not so here.
otheR couRts ’ aPPlication of P earce
Other courts have held that Pearce does not apply when the
sentencing court on remand, after a habitual criminal enhance-
ment is vacated, imposes the same or nearly the same sentence.21
The Florida Court of Appeal in Thomas v. State22 held that a
sentencing court’s increase in the maximum term was not more
severe when the court imposed the same prison time after the
appellate court had vacated a mandatory minimum sentence.
In Thomas, the sentencing court originally sentenced the
defendant to 40 years’ imprisonment as a habitual violent
offender with a 15-year mandatory minimum. After the appellate
court vacated this sentence in a postconviction proceeding, the
sentencing court resentenced him as a habitual felony offender
to a term of 50 years with no mandatory minimum. The court
stated that it intended to have the defendant serve the same time.
It determined that the new sentence would result in the same
prison time because there was no longer a mandatory minimum
term. The Florida Court of Appeal held that the defendant failed
to show his new sentence was more severe or had been moti-
vated by vindictiveness.23
R esolution
We have similarly questioned whether a greater maximum
sentence was a more severe sentence when the defendant would
20 Id. at 655, 432 N.W.2d at 841.
21 See, e.g., Thomas v. State, 638 So. 2d 169 (Fla. App. 1994); Gray v. State,
871 N.e.2d 408 (Ind. App. 2007); State v. Freeman, 577 So. 2d 216 (La.
App. 1991). But see Raines v. State, 562 So. 2d 530 (Ala. App. 1988).
22 Thomas, supra note 21.
23 See id. See, also, Walker v. State, 499 So. 2d 884 (Fla. App. 1st dist. 1986);
Trasti v. State, 487 So. 2d 428 (Fla. App. 5th dist. 1986). But see Parker v.
State, 977 So. 2d 671 (Fla. App. 4th dist. 2008).
STATe v. kING 	905
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906 	275 NeBrASkA rePOrTS
reach his parole eligibility date sooner under the new sentence.24
Here, the district court intended and correctly calculated that
its new sentences would impose the same prison time as its
original sentences. Other courts have reasoned that the resen-
tencing, after one of a defendant’s multicount convictions has
been reversed, does not signal retaliatory animus when it does
not increase the actual time served and only reflects the judge’s
original sentencing intent:
[W]hen a defendant is found guilty on a multicount indict-
ment, there is a strong likelihood that the district court will
craft a disposition in which the sentences on the various
counts form part of an overall plan. When the convic-
tion on one or more of the component counts is vacated,
common sense dictates that the judge should be free to
review the efficacy of what remains in light of the original
plan, and to reconstruct the sentencing architecture upon
remand, within applicable constitutional and statutory lim-
its, if that appears necessary in order to ensure that the
punishment still fits both crime and criminal.25
This reasoning applies here.
First, under both the district court’s original and new sen-
tences, king’s mandatory release and parole eligibility dates
were the same. king would reach his mandatory release date in
371⁄2 years under either set of sentences.26 The court also correctly
determined that king would reach parole eligibility in 30 years
under his original mandatory minimum sentences. We have held
that a mandatory minimum 10-year sentence under the habitual
criminal statutes cannot be reduced by good time credit.27 The
Legislature has codified this requirement.28 Likewise, the court
correctly determined that under its new sentences, king would
24 See Blankenship, supra note 14.
25 U.S. v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir. 1989). Accord U.S. v.
Shue, 825 F.2d 1111 (7th Cir. 1987). See, also, Kelly v. Neubert, 898 F.2d
15 (3d Cir. 1990); Paul v. United States, 734 F.2d 1064 (5th Cir. 1984).
26 See, Neb. rev. Stat. § 83-1,107(2) and (3) (reissue 1999 & Cum. Supp.
2006); Neb. rev. Stat. § 83-1,110(2) (reissue 1999 & Cum. Supp. 2006).
27 See Johnson v. Kenney, 265 Neb. 47, 654 N.W.2d 191 (2002).
28 See § 83-1,110(1).

still be eligible for parole in 30 years, or when he had served
one-half of the new 60-year aggregate minimum term.29 king
conceded at oral argument that the new minimum and maximum
terms are functionally the same as the original terms.
[6] Second, the new sentences reflected the court’s original
sentencing intent, which was not simply tied to mandatory
minimums under the habitual criminal statutes. The court was
required to impose mandatory minimum terms of 10 years for
each felony conviction once it had found king to be a habitual
criminal. But it was not required to impose consecutive sen-
tences for these offenses.30 In Nebraska, unless prohibited by
statute or unless the sentencing court states otherwise when it
pronounces the sentences, multiple sentences imposed at the
same time run concurrently with each other.31 But at king’s
original sentencing, the court rejected a request for concur-
rent sentences because of the seriousness of these crimes. As
the court stated at the third resentencing hearing, “[king] was
[originally] sentenced . . . for the harm that was caused and the
danger that he posed to public safety. The . . . habitual criminal
designation simply shifted the range of possible sentences that
could be imposed.”
The resentencing circumstances here reflect neither more
severe sentences nor a reasonable likelihood of vindictiveness.
Instead, the record reflects the district court’s carefully calcu-
lated determination to ensure that its new sentences, which are
not subject to mandatory minimum terms, would be functionally
equivalent to its original sentences. The Pearce32 presumption of
vindictiveness does not apply.
affiRmed .
heavican, C.J., not participating.
29 See § 83-1,110(2).
30 See, generally, State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).
31 See, id.; State v. Sorenson, 247 Neb. 567, 529 N.W.2d 42 (1995).
32 Pearce, supra note 1.
STATe v. kING 	907
Cite as 275 Neb. 899