dissenting.
The Court concludes that Mr. Sexton did not receive a more severe sentence at his retrial, and, therefore, that North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1968), does not apply. I respectfully disagree. Mr. Sexton was convicted of fewer crimes at his second trial. Yet, his sentence was the same as that following his first trial. Quite simply, this is a more severe sentence. To hold otherwise, as the state court did, and as this Court does, is an unreasonable application of Pearce. Mr. Sexton’s sentence violates due process, and he should be granted relief.
The Supreme Court ruled in Pearce “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.” 395 U.S. at 725, 89 S.Ct. 2072. To enforce this due process guarantee, Pearce limits the circumstances in which a sentencing judge may impose a more severe sentence upon a defendant after a new trial. An increased sentence is permissible only when *817the judge affirmatively states on the record reasons for the more severe sentence that are “based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Id. at 726, 89 S.Ct. 2072.
It is uncontested that Mr. Sexton’s case does not fall within this exception for later conduct. Nevertheless, the Court holds that Pearce does not afford Mr. Sexton any relief. It concludes that because Mr. Sexton’s total sentence was the same following both his first and second convictions that he has not been subjected to a more severe sentence. In his original trial, Mr. Sexton was convicted of one count of rape and five counts of sodomy. He was sentenced to five concurrent twenty-year sentences on the sodomy counts and a consecutive twenty-year sentence on the rape count. In his second trial, Mr. Sexton was convicted of five counts of sodomy, but acquitted of rape. Before the judge was a defendant convicted of fewer crimes. Yet, Mr. Sexton received the same total sentence of forty years, handed down as concurrent forty-year terms for each sodomy count. The same person received the same punishment for lesser crimes. This is plainly a “more severe sentence.” Pearce forbids exactly such a result.
Our sister circuits are split on the application of Pearce to multi-count cases. I believe the better approach is that used by the Second and Eleventh Circuits. Rather than comparing the aggregate sentences, these courts compare the first and second sentences only after subtracting from the first sentence any punishment imposed for dropped, dismissed, or acquitted counts. See United States v. Markus, 603 F.2d 409 (2d Cir.1979) (shortening sentence of federal prisoner to correct more severe sentence in violation of Pearce that resulted after a count was dropped on retrial). In a case factually similar to Mr. Sexton’s, the Eleventh Circuit has held that Pearce is violated when a defendant receives an identical sentence after retrial, even though convicted of fewer counts. See United States v. Monaco, 702 F.2d 860 (11th Cir.1983). In that case, a defendant received a total of four years of imprisonment on three counts. He was granted a new trial, at which his motion to have count three dropped for insufficiency of the evidence was granted. He was convicted on the other two counts and sentenced to four years of imprisonment. Although his total first and second sentences were identical, he received a longer sentence on the convicted counts than he had at his first trial. The Eleventh Circuit adopted the approach in Markus and held that his new sentence violated the rule in Pearce. 702 F.2d at 885. See also Midgett v. McClelland, 547 F.2d 1194 (4th Cir.1977) (granting pre-AEDPA habeas relief to state prisoner who received same sentence at retrial, despite having been acquitted of one charge for which he originally received twenty-year term, as this was impermissible and appeared retaliatory on its face).
Today, the Court instead adopts the “aggregate sentence” approach of simply comparing the first and second sentences. The problems with this approach are manifold. First, it allows a judge to order the same sentence regardless of any reduction in the defendant’s convictions, provided that the statutory máximums for the convicted crimes are not exceeded. This results in'defendants being given no “credit” for having been convicted of fewer offenses. They receive the same sentence despite fewer convictions. However, under the general sentencing provisions of Missouri, courts are allowed to decide the extent or duration of sentence only “upon a finding of guilt upon verdict or plea.” Mo.Rev.Stat. § 557.036.1 (Cum.Supp.1992). *818This suggests that in Missouri sentences should relate to offenses, the nature of which determines the punishment. In his second trial, Mr. Sexton was convicted of one less offense. A jury acquitted him of rape. Neither the state nor this Court points to any authority that would allow a Missouri court to consider acquitted conduct in sentencing a defendant. Yet, despite his acquittal on the rape charge that garnered him a twenty-year sentence in the first trial, the court entered the same aggregate sentence against Mr. Sexton following his second trial. It achieved this result by increasing the terms on the sodomy counts to produce the same total term of imprisonment. This appears to be retaliatory on its face.
The mere fact that a sentence of forty years is within the statutory limits allowed by Missouri law, as the Court points out, is irrelevant to a Pearce analysis. Upon retrial, Mr. Sexton received a longer sentence for the sodomy convictions, and his total sentence was the same. This is precisely the type of result that chills appeals by criminal defendants, who, may believe that the increased sentence after retrial results from judicial vindictiveness. The prophylactic rule in Pearce forbidding more severe sentences was designed to remove this doubt. Upholding the same sentence for a defendant who was convicted of fewer crimes does nothing to eliminate this fear. Instead, it informs defendants that whether they are convicted or acquitted of a crime (for which they were originally sentenced to prison time) may now after retrial be irrelevant to their new sentence. Such a result defies the logic of the sentencing statutes of Missouri, in which defendants are given a sentence for each crime of which they are convicted. See generally Mo.Rev.Stat. § 557 (Cum. Supp.1992).
Second, while the Court may be correct that the Supreme Court has not broadly extended Pearce, it is equally true, and much more pertinent here, that Pearce is still the law. Its core holding is intact. In both Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), and Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), the Supreme Court articulated reasons why in those situations an increased sentence was unlikely to be the result of judicial vindictiveness. In Mr. Sexton’s case, this Court produces no such reasons. Therefore, these cases are inapplicable and do not persuasively support the Court’s pinched reading of Pearce in the context of a multi-count case.
Indeed, defendants convicted of multiple counts may be more likely to face retaliation upon retrial than defendants convicted twice of a single count. In Mr. Sexton’s case, the same judge witnessed a jury convict him of rape and later witnessed a different jury acquit him. A result such as this may seem to a judge to be an unfair “bonus” result of securing a new trial. Or, as in a single count case, a judge may be angry at a defendant for having taken an appeal that forced him to retry the case. These reasons are retaliatory and forbidden by due process.
Of course, a judge could have a benign reason for wishing to alter the sentences for each count in a multi-count context. In the case relied on by the Court, United States v. Shue, 825 F.2d 1111, 1114 (7th Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 351, 98 L.Ed.2d 376 (1987), the Seventh Circuit suggests that because the sentences were likely to have been made “interdependent,” a court may wish to recraft the sentence to effectuate its original intent. While this may be true, it does nothing to give assurance against judicial vindictiveness.
*819Finally, I question the Court’s mention of the facts that a new presentence report was prepared for the second sentencing, and that at that hearing, the prosecutor alleged that Mr. Sexton had sexually assaulted other girls in the past. I believe consideration of this information is inappropriate in the context of a Pearce analysis. This alleged behavior did not occur after the time of the original sentencing proceeding. Therefore, under Pearce it cannot be used to support a more severe sentence. Its possible relevance appears to be that it may constitute a non-retaliatory reason for the sentence Mr. Sexton received. While this may be, in fact, why the judge increased the sentences for sodomy (rather than out of retaliation), the judge did not say so, and it is exactly this type of speculation that Pearce is designed to eliminate. Our Constitution requires that defendants be freed from any apprehension that the result of a successful appeal may be a vindictive judge. 395 U.S. at 725, 89 S.Ct. 2072. Our Court, Mr. Sexton, and other defendants weighing whether to appeal, cannot know why Mr. Sexton received longer sentences for his sodomy crimes. But since there is a reasonable possibility that retaliation for a successful appeal motivated the second sentence, I believe that Mr. Sexton’s case falls squarely under Pearce, and that his sentence is unconstitutional.