concurring fully and specially.
Although I concur fully in the majority’s determination that Anthony v. Hopper’s3 count-by-count approach remains binding precedent, and that because of this, the North Carolina v. Pearce4 presumption of vindictiveness has been triggered, I write specially to re-emphasize the problems associated with the count-by-count approach, as eloquently discussed by Judge Bernes in Blake v. State.5 Judge Bernes’ special concurrence in that case advocated for a presumption of vindictiveness that applies only when there is a “real likelihood of actual vindictiveness by the trial judge.”6 Judge Bernes noted that a majority of federal circuit courts of appeal applying the *58Pearce presumption, as well as some state appellate courts, have declined to use the count-by-count approach and have instead adopted some form of the aggregate approach.7 I believe Georgia should follow suit.
We already have considered the aggregate approach outside the context of the Adams v. State plurality.8 In Alvarado v. State9 and Duffey v. State,10 we applied such an approach when concurrent sentences were made consecutive at resentencing, recognizing that when trial judges impose sentences stemming from the same underlying unlawful conduct, their intent in fashioning those sentences is based on a holistic analysis of the multi-count convictions before them.
In the instant case, the acts for which Hudson was convicted as a recidivist arose from the same events — Hudson’s sexual molestation of his very young niece. The trial court in its initial sentence clearly attempted to effectuate a broad conception of Hudson’s culpability. The application of the Pearce presumption of vindictiveness here, via Anthony, may eviscerate that intent. This is because on remand, theoretically, Hudson’s custodial sentence could drop from twenty-five years total on the prior two counts to the original ten years assigned to the surviving child molestation count. A potential result of the Pearce presumption has been recognized by Justice Hugo Black, who noted that “the Court’s opinion [in Pearce] may hereafter cause judges to impose heavier sentences on defendants in order to preserve their lawfully authorized discretion should defendants win reversals of their original convictions.”11
Federal courts adopting the aggregate method have recognized that “[b]ecause the sentences are interdependent, the reversal of convictions underlying some, but not all, of the sentences renders the sentencing package ineffective in carrying out the . . . court’s sentencing intent as to any one of the sentences on the affirmed convictions.”*5912 Therefore,
Decided October 17, 2012 Mark A. Begnaud, for appellant. Lee Darragh, District Attorney, Lindsay H. Burton, Assistant District Attorney, for appellee.the aggregate approach best reflects the realities faced by... judges who sentence a defendant on related counts of an indictment. Sentencing is a fact-sensitive exercise that requires ... judges to consider a wide array of factors when putting together a “sentencing package.” When an appellate court subsequently reverses a conviction... that was part of the original sentence, the . . . court’s job on remand is to reconsider the entirety of the (now-changed) circumstances and fashion a sentence that fits the crime and the criminal.13
Although Georgia does not have per se sentencing packages, it would be disingenuous to say trial judges do not consider related counts in crafting sentences; it would be ludicrous to say that upon remand they should not consider the “entirety of the (now-changed) circumstances.” For the foregoing reasons, I respectfully suggest that our Supreme Court consider adopting some version of the aggregate approach.
I am authorized to state that Judge Branch joins in this opinion.
235 Ga. 336, 337-338 (1) (219 SE2d 413) (1975).
395 U. S. 711, 724-725 (II) (C) (89 SC 2072, 23 LE2d 656) (1969).
272 Ga. App. 402, 406-410 (612 SE2d 589) (2005).
(Citation omitted.) Blake, supra at 408. See Alabama v. Smith, 490 U. S. 794, 799 (109 SC 2201, 104 LE2d 865) (1989) (where no reasonable likelihood of vindictiveness exists, defendant bears burden of showing actual vindictiveness).
Id. at 408-409 (providing a comprehensive list of relevant cases in federal circuit courts of appeal and state appellate courts). See also Adams v. State, 287 Ga. 513, 517 (2) (696 SE2d 676) (2010).
Adams, supra at 516-520 (2).
248 Ga. App. 810, 811 (1) (547 SE2d 616) (2001) (trial court “plainly intended to sentence the defendant to a certain amount of time for his conduct”).
222 Ga. App. 802, 803-804 (1), (2) (476 SE2d 89) (1996) (trial court “plainly intended appellant to serve 30 years for his crimes against these children; the fact that two technically redundant counts were vacated does not lessen the severity of the crimes . . . and it certainly does not require the trial court to reduce appellant’s sentence for the remaining counts”) (emphasis in original).
(Emphasis supplied.) Pearce, supra at 743 (Black, J., concurring in part and dissenting in part).
United States v. Shue, 825 F2d 1111, 1114 (III) (A) (7th Cir. 1987).
(Footnote omitted; emphasis supplied.) United States v. Campbell, 106 F3d 64, 68 (I) (B) (5th Cir. 1997). See also United States v. Pimienta-Redondo, 874 F2d 9,14 (II) (B) (1st Cir. 1989) (en banc) (plurality) (“common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan, and to reconstruct the sentencing architecture upon remand, within applicable constitutional and statutory limits, ... to ensure that the punishment still fits both crime and criminal”) (citations and footnote omitted).