We granted certiorari in this criminal case to decide on the correct approach for determining whether a new sentence, imposed after the defendant’s initial sentence has been vacated, constitutes a harsher sentence and thereby triggers a presumption of vindictiveness under North Carolina v. Pearce, 395 U.S. 711 89 SCt 2072, 23 LEd2d 656 1969. More than three decades ago, this Court adopted what is known as the “count-by-count” approach. Anthony v. Hopper, 235 Ga. 336 219 SE2d 413 1975. However, the majority of federal and state appellate counts have now adopted the alternative “aggregate” approach. See Adams v. State, 287 Ga. 513 2 696 SE2d 676 2010 three-Justice plurality, noting trend favoring aggregate approach and advocating its adoption. In light of the momentum supporting our adoption of the aggregate approach, we granted certiorari here to settle the issue. For the reasons set forth below, we now adopt the aggregate approach, and we overrule Anthony v. Hopper to the extent it requires application of the count-by-count approach. We therefore reverse the judgment of the Court of Appeals.
In North Carolina v. Pearce, supra, the United States Supreme Court held that due process prohibits trial courts from penalizing criminal defendants for undertaking successful post-trial challenges to their convictions or sentences. Specifically, the Court held, “vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” North Carolina v. Pearce, 395 U.S. at 725 II C. Furthermore, the Court opined, “due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” Footnote omitted. Id. To prevent such fear of retaliation from deterring defendants in the exercise of their appeal rights, the Supreme Court held that vindictiveness will be presumed whenever a more severe sentence is imposed after a retrial or remand, and that to overcome this presumption, the reasons justifying the increased sentence must “affirmatively appear” and be based on “objective information” in the record regarding “identifiable conduct on the part of the defendant.” Id. at 726 II C.
