Following a jury trial, Kenneth Johnson was convicted of criminal damage to property in the second degree, OCGA § 16-7-23 a 1; possession of a knife during the commission of a crime, OCGA § 16-11-106 b 2; carrying a concealed weapon, OCGA § 16-11-126 a; and misdemeanor obstruction of a law enforcement officer, OCGA § 16-10-24 a. In Johnson v. State , 302 Ga. App. 318, 320-321 1 b 690 SE2d 683 2010, we reversed Johnson’s conviction for possession of a knife during the commission of a crime. We affirmed his convictions for criminal damage to property in the second degree, carrying a concealed weapon, and misdemeanor obstruction, and remanded the case for resentencing. Id. at 320 1-322 2 b. Johnson contends on appeal that the trial court’s resentencing was unlawful because it gave rise to harsher punishment. We disagree because the trial court did not impose a more severe sentence on resentencing. Due process prohibits “the imposition of a more severe sentence as a result of vindictiveness against a defendant for successfully attacking his conviction.” Citations omitted. Alvarado v. State , 248 Ga. App. 810, 811 1 547 SE2d 616 2001. See North Carolina v. Pearce , 395 U. S. 711, 725 II C 89 SC 2072, 23 LE2d 656 1969. Vindictiveness is presumed if the trial court imposes a harsher punishment on resentencing, “which presumption may be overcome only by objective information in the record justifying the increased sentence.” Citation and punctuation omitted. Wasman v. United States , 468 U. S. 559, 565 II A 104 SC 3217, 82 LE2d 424 1984. Accordingly, the threshold issue is whether Johnson received a harsher punishment on resentencing.
The record shows that the trial court originally sentenced Johnson to an aggregate of ten years imprisonment. The trial court sentenced Johnson to five years incarceration for Count II, criminal damage to property in the second degree. The trial court sentenced Johnson to five years on Count III, possession of a knife during commission of a crime, to be served consecutive to the sentence imposed on Count II. As to Counts IV and Count V, the misdemeanor offenses of carrying a concealed weapon and obstruction, the trial court sentenced Johnson to 12 months incarceration concurrent with Count III.
