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 20-year 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 “pursuant 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, 799-800 109 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 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 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. . . . 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 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.
