opinion: TEXAS v. McCULLOUGH
  No. 84-1198.
  Argued December 10, 1985
  Decided February 26, 1986
  BURGER, C. J., delivered the opinion of the Court, in which White, Powell, Rehnquist, and O’Connor, JJ., joined. BREnnan, J., filed an opinion concurring in the judgment, post, p. 144. Marshall, J., filed a dissenting opinion, in which Blackmun and Stevens, JJ., joined, post, p. 145.
  Randall L. Sherrod argued the cause for petitioner. With him on the brief was Deane C. Watson.
  Jeff Blackburn argued the cause pro hac vice for respondent. With him on the brief were Michael B. Charlton and John Mann
  Acting Solicitor General Fried, Assistant Attorney General Trott, Deputy Solicitor General Frey, Alan I. Horowitz, and Patty Merkamp Stemler filed a brief for the United States as amicus curiae urging reversal.
  Chief Justice Burger
  delivered the opinion of the Court.
  We granted certiorari to decide whether the Due Process Clause of the Fourteenth Amendment was violated when the defendant in a state court received a greater sentence on retrial where the earlier sentence was imposed by the jury, the trial judge granted the defendant’s motion for a new trial, the defendant requested that in the second trial the judge fix the sentence, and the judge entered findings of fact justifying the longer sentence.
  I
  In 1980, Sanford James McCullough was tried before a jury in the Randall County, Texas, District Court and convicted of murder. McCullough elected to be sentenced by the jury, as was his right under Texas law. Tex. Code Crim. Proc. Ann., Art. 37.07 (Vernon 1981). The jury imposed a 20-year sentence. Judge Naomi Harney, the trial judge, then granted McCullough’s motion for a new trial on the basis of prosecutorial misconduct.
  Three months later, McCullough was retried before a jury, with Judge Harney again presiding. At this trial, the State presented testimony from two witnesses who had not testified at the first trial that McCullough rather than his accomplices had slashed the throat of the victim. McCullough was again found guilty by a jury. This time, he elected to have his sentence fixed by the trial judge. Judge Harney sentenced McCullough to 50 years in prison and, upon his motion, made findings of fact as to why the sentence was longer than that fixed by the jury in the first trial. She found that in fixing the sentence she relied on new evidence about the murder that was not presented at the first trial and hence never made known to the sentencing jury. The findings focused specifically on the testimony of two new witnesses, Carolyn Hollison McCullough and Willie Lee Brown, which “had a direct effect upon the strength of the State’s case at both the guilt and punishment phases of the trial.” App. to Pet. for Cert. A-23. In addition, Judge Harney explained that she learned for the first time on retrial McCullough had been released from prison only four months before the later crime had been committed. Ibid. Finally, the judge candidly stated that, had she fixed the first sentence, she would have imposed more than 20 years. Id., at A-24.
  On appeal, the Texas Court of Appeals reversed and resen-tenced McCullough to 20 years’ imprisonment. 680 S. W. 2d 493 (1983). That court considered itself bound by this Court’s decision in North Carolina v. Pearce, 395 U. S. 711 (1969), and held that a longer sentence upon retrial could be imposed only if it was based upon conduct of the defendant occurring after the original trial. Petitioner sought review in the Texas Court of Criminal Appeals, and that court limited its review to whether the Texas Court of Appeals had authority to limit respondent’s sentence to 20 years. 720 S. W. 2d 89 (1983). The court concluded that, as a matter of procedure, the case should have been remanded to the trial judge for resentencing. On petitioner’s motion for rehearing, the court concluded that under Pearce vindictiveness must be presumed even though a jury had fixed punishment at the first trial and a judge had fixed it at the second trial. We granted certiorari. 472 U. S. 1007 (1985). We reverse.
  H h-1
  In North Carolina v. Pearce, supra, the Court placed a limitation on the power of a sentencing authority to increase a sentence after reconviction following a new trial. It held that the Due Process Clause of the Fourteenth Amendment prevented increased sentences when that increase was motivated by vindictiveness on the part of the sentencing judge. The Court stated:
  “Due process of law, then, 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. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
  “In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear” Id., at 725-726 (emphasis added).
  Beyond doubt, vindictiveness of a sentencing judge is the evil the Court sought to prevent rather than simply enlarged sentences after a new trial. The Pearce requirements thus do not apply in every case where a convicted defendant receives a higher sentence on retrial. Like other “judicially created means of effectuating the rights secured by the [Constitution],” Stone v. Powell, 428 U. S. 465, 482 (1976), we have restricted application of Pearce to areas where its “objectives are thought most efficaciously served,” 428 U. S., at 487. Accordingly, in each case, we look to the need, under the circumstances, to “guard against vindictiveness in the resentencing process.” Chaffin v. Stynchcombe, 412 U. S. 17, 25 (1973) (emphasis omitted). For example, in Moon v. Maryland, 398 U. S. 319 (1970), we held that Pearce did not apply when the defendant conceded and it was clear that vindictiveness had played no part in the enlarged sentence. In Colten v. Kentucky, 407 U. S. 104 (1972), we saw no need for applying the presumption when the second court in a two-tier trial system imposed a longer sentence. In Chaffin, supra, we held Pearce not applicable where a jury imposed the increased sentence on retrial. Where the prophylactic rule of Pearce does not apply, the defendant may still obtain relief if he can show actual vindictiveness upon resentencing. Wasman v. United States, 468 U. S. 559, 569 (1984).
  The facts of this case provide no basis for a presumption of vindictiveness. In contrast to Pearce, McCullough’s second trial came about because the trial judge herself concluded that the prosecutor’s misconduct required it. Granting McCullough’s motion for a new trial hardly suggests any vindictiveness on the part of the judge towards him. “[U]n-like the judge who has been reversed,” the trial judge here had “no motivation to engage in self-vindication.” Chaffin, 412 U. S., at 27. In such circumstances, there is also no justifiable concern about “institutional interests that might occasion higher sentences by a judge desirous of discouraging what he regards as meritless appeals.” Ibid. In granting McCullough’s new trial motion, Judge Harney went on record as agreeing that his “claims” had merit. Presuming vindictiveness on this basis alone would be tantamount to presuming that a judge will be vindictive towards a defendant merely because he seeks an acquittal. Thus, in support of its position, the dissent conjures up visions of judges who view defendants as temerarious for filing motions for new trials, post, at 151, and who are “annoyed” at being forced “to sit through . . . trial[s] whose result[s] [are] foregone conclu-siones],” post, at 150. We decline to adopt the view that the judicial temperament of our Nation’s trial judges will suddenly change upon the filing of a successful post-trial motion. The presumption of Pearce does not apply in situations where the possibility of vindictiveness is this speculative, particularly since the presumption may often “operate in the absence of any proof of an improper motive and thus . . . block a legitimate response to criminal conduct,” United States v. Goodwin, 457 U. S. 368, 373 (1982). Indeed, not even “apprehension of such a retaliatory motivation on the part of the sentencing judge,” Pearce, 395 U. S., at 725, could be present in this case. McCullough was entitled by law to choose to be sentenced by either a judge or a jury. Faced with that choice, on retrial McCullough chose to be sentenced by Judge Harney. There can hardly be more emphatic affirmation of his appraisal of Judge Harney’s fairness than this choice. Because there was no realistic motive for vindictive sentencing, the Pearce presumption was inappropriate.
  The presumption is also inapplicable because different sentencers assessed the varying sentences that McCullough received. In such circumstances, a sentence “increase” cannot truly be said to have taken place. In Colten v. Kentucky, supra, which bears directly on this case, we recognized that when different sentencers are involved,
  “[i]t may often be that the [second sentencer] will impose a punishment more severe than that received from the [first]. But it no more follows that such a sentence is a vindictive penalty for seeking a [new] trial than that the [first sentencer] imposed a lenient penalty.” Id., at 117.
  Here, the second sentencer provides an on-the-record, wholly logical, nonvindictive reason for the sentence. We read Pearce to require no more, particularly since trial judges must be accorded broad discretion in sentencing, see Wasman, supra, at 563-564.
  In this case, the trial judge stated candidly her belief that the 20-year sentence respondent received initially was unduly lenient in light of significant evidence not before the sentencing jury in the first trial. On this record, that appraisal cannot be faulted. In any event, nothing in the Constitution prohibits a state from permitting such discretion to play a role in sentencing.
  III
  Even if the Pearce presumption were to apply here, we hold that the findings of the trial judge overcome that presumption. Nothing in Pearce is to be read as precluding a rebuttal of intimations of vindictiveness. As we have explained, Pearce permits “a sentencing authority [to] justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing proceedings.” Wasman, 468 U. S., at 572; see also id., at 573 (Powell, J., concurring in part and concurring in judgment). This language, however, was never intended to describe exhaustively all of the possible circumstances in which a sentence increase could be justified. Restricting justifications for a sentence increase to only “events that occurred subsequent to the original sentencing proceedings” could in some circumstances lead to absurd results. The Solicitor General provides the following hypothetical example:
  “Suppose . . . that a defendant is convicted of burglary, a non-violent, and apparently first, offense. He is sentenced to a short prison term or perhaps placed on probation. Following a successful appeal and a conviction on retrial, it is learned that the defendant has been using an alias and in fact has a long criminal record that includes other burglaries, several armed robbery convictions, and a conviction for murder committed in the course of a burglary. None of the reasons underlying Pearce in any way justifies the perverse result that the defendant receive no greater sentence in light of this information than he originally received when he was thought to be a first offender.” Brief for United States as Amicus Curiae 26.
  We agree with the Solicitor General and find nothing in Pearce that would require such a bizarre conclusion. Perhaps then the reach of Pearce is best captured in our statement in United States v. Goodwin, 457 U. S., at 374:
  “In sum, the Court [in Pearce] applied a presumption of vindictiveness, which may be overcome only by objective information . . . justifying the increased sentence.”
  Nothing in the Constitution requires a judge to ignore “objective information . . . justifying the increased sentence.” In refusing to apply Pearce retroactively we observed that “the Pearce prophylactic rules assist in guaranteeing the propriety of the sentencing phase of the criminal process.” Michigan v. Payne, 412 U. S. 47, 52-53 (1973). Realistically, if anything this focus would require rather than forbid the consideration of the relevant evidence bearing on sentence since “‘[h]ighly relevant — if not essential — to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.’” Wasman, supra, at 564 (quoting Williams v. New York, 337 U. S. 241, 247 (1949)).
  To be sure, a defendant may be more reluctant to appeal if there is a risk that new, probative evidence supporting a longer sentence may be revealed on retrial. But this Court has never recognized this “chilling effect” as sufficient reason to create a constitutional prohibition ¿gainst considering relevant information in assessing sentences. We explained in Chaffin v. Stynchcombe, 412 U. S., at 29, that “the Court [in Pearce] intimated no doubt about the constitutional validity of higher sentences in the absence of vindictiveness despite whatever incidental deterrent effect they might have on the right to appeal.” We see no reason to depart from this conclusion.
  It is clear that the careful explanation by the trial judge for the sentence imposed here fits well within our prior holdings. Judge Harney relied on the testimony of two new witnesses which she concluded “had a direct effect upon the strength of the State’s case at both the guilt and punishment phases of the trial.” App. to Pet. for Cert. A-23. The judge supported this conclusion with specific findings, noting that “[t]he testimony [of the two new witnesses] added to the credibility of the State’s key witness . . . and detracted from the credibility of Dennis McCullough and [respondent] who both testified for the defense.” Ibid. The judge also found that “[t]he testimony of these two witnesses directly implicated the defendant in the commission of the murder in question and showed what part he played in committing the offense.” Id., at A-22. Finally, the judge concluded that their testimony “shed new light upon [McCullough’s] life, conduct, and his mental and moral propensities.” Id., at A-23. These findings clearly constitute “objective information . . . justifying the increased sentence.”
  Judge Harney also found that McCullough had been released from confinement only four months before the murder, ibid., another obviously relevant fact not before the sentencing jury in the first trial. We have recognized the state’s legitimate interest “in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.” Rummel v. Estelle, 445 U. S. 263, 276 (1980). A defendant who commits new crimes within four months of his release from prison clearly poses a greater danger to society than one who commits crimes less often. To foreclose reliance on the kind of pertinent new information developed in the second trial would be wholly incompatible with modern sentencing standards. This new objective information also amply justified McCullough’s increased sentence.
  In setting aside the second sentence, the Texas Court of Appeals recognized that the new information bore legitimately on the appropriate sentence to impose, but concluded, reluctantly, that Pearce precluded reliance, on this information. It is appropriate that we clarify the scope and thrust of Pearce, and we do so here.
  The case is remanded to the Texas Court of Criminal Appeals for further proceedings not inconsistent with this opinion.
  Reversed and remanded.
  Later Judge Harney sentenced two other defendants for their role in the same murder. She gave both defendants 50-year sentences identical to McCullough’s.
  The Texas Court of Appeals in applying Pearce observed:
  “This case demonstrates the excessive scope of Pearce. The trial judge filed detailed and valid reasons for the heavier punishment and there is nothing in the record to indicate that the increased punishment resulted from vindictiveness. However, the reasons affirmatively supported by evidence are based on events occurring during or after the crime but before the first trial. Although those matters were not brought out at the first trial, they cannot be used [under Pearce] to increase punishment because none occurred after the first trial.” 680 S. W. 2d, at 496, n. 2.
  Pearce itself apparently involved different judges presiding over the two trials, a fact that has led some courts to conclude by implication that the presumption of vindictiveness applies even where different sentencing judges are involved. See, e. g., United States v. Hawthorne, 532 P. 2d 318, 323 (CA3), cert. denied, 429 U. S. 894 (1976). That fact, however, may not have been drawn to the Court’s attention and does not appear anywhere in the Court’s opinion in Pearce. Clearly the Court did not focus on it as a consideration for its holding. See Hardwick v. Doolittle, 558 F. 2d 292, 299 (CA5 1977), cert. denied, 434 U. S. 1049 (1978). Subsequent opinions have also elucidated the basis for the Pearce presumption. We held in Chaffin v. Stynchcombe, 412 U. S. 17 (1973), for instance, that the presumption derives from the judge’s “personal stake in the prior conviction,” id., at 27, a statement clearly at odds with reading Pearce to answer the two-sentencer issue. We therefore decline to read Pearce as governing this issue. See also n. 4, infra.
  The dissent contends that this objection “was considered in Pearce and rejected there.” Post, at 155. In fact, the issue, like the two-sentencer issue just discussed, was not before the Court because in neither Pearce nor its companion case did the State offer “any reason or justification” for the increased sentence. 395 U. S., at 726. Moreover, Pearce was argued on the assumption that the Constitution either absolutely forbade or permitted increased sentences on retrial. None of the briefs advanced the intermediate position ultimately relied upon by the Court that the Constitution permits increased sentences only in certain circumstances. Cf. Brief for American Civil Liberties Union et al. as Amici Curiae in North Carolina v. Pearce, O. T. 1968, No. 413, pp. 8-10 (quoted post, at 155-156) (arguing that “[t]o subject an accused to the risk of harsher punishment... as a condition of appeal... is an unconstitutional condition which violates the Due Process Clauses of the Fifth and Fourteenth Amendments”). Thus, as the Solicitor General points out, “in formulating the standard set forth in Pearce, the Court was completely without the ‘sharpening of] the presentation of issues’ provided by the adversary process, ‘upon which the court so largely depends for illumination of difficult constitutional issues.’ ” Brief for United States as Amicus Curiae 22-23 (quoting Baker v. Carr, 369 U. S. 186, 204 (1962)). But even if Pearce could be read to speak definitively to this situation, we are not reluctant to tailor judicially created rules to implement constitutional guarantees, like the Pearce rule, see Michigan v. Payne, 412 U. S. 47, 51 (1973), when the need to do so becomes apparent. Cf. United States v. Leon, 468 U. S. 897 (1984).
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