Whether a more severe sentence of incarceration must be numerically longer than previous sentences, and whether a consecutive sentence is considered more severe than a concurrent sentence at a third resentencing after successful appeals

QUESTION PRESENTED In North Carolina v. Pearce, 395 U.S. 711, 725 (1969), this Court held that the Due Process Clause requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no patt in the sentence he receives after a new trial. The Court explained that due process requires that a defendant be freed of apprehension of such a retaliatory motivation on the patt of the sentencing judge. Pearce, 395 U.S. at 725. The Pearce Court held that whenever a judge imposes a “more severe” sentence after a successful appeal, the reasons for doing so must affirmatively appear. Id. at 726. Absent such affirmative reasons, a presumption arises that the more severe sentence has been imposed for a vindictive purpose. Texas v. McCullough, 475 U.S. 134, 142 (1986). This case presents the following questions: 1. Must a “more severe” sentence of incarceration be numerically longer than the sentences of incarceration previously imposed; and if not 2. Ata third resentencing hearing after two successful appeals of recidivist enhancements, does a court render a “more severe” sentence when it sentences a defendant consecutively when the sentencing court had previously sentenced the defendant concurrently.