dissenting.
In 1967, a defendant had a right, under Oregon statute, to appeal a wrongful conviction. In 1967, a trial court had discretion, under Oregon statutes, to decide the sentence that a defendant should receive if convicted for a second time after a successful appeal. In 1967, in State v. Turner, 247 Or 301, 429 P2d 565 (1967), this court decided a question at the confluence of those statutes: whether a defendant who successfully exercised the right to appeal a wrongful conviction and had it overturned could be subjected to a harsher sentence than that originally imposed. The court decided, in a unanimous opinion, that he could not.
The majority overrules Turner as a “well-meaning” but “inappropriatet ]” assumption of policy-making responsibility “that belongs elsewhere.” 349 Or at 23.1 agree with the majority that, in 1967, the legislature had authority to decide the question presented in Turner. However, the legislature had not exercised that authority and Oregon statutes neither explicitly permitted nor explicitly precluded a sentencing judge from imposing a harsher sentence in the circumstance presented. Therefore, I cannot agree that the court in Turner inappropriately assumed a legislative role when it decided the question before it.
In the absence of express statutory guidance, the court in Turner considered the competing public interests reflected in the statutes that the legislature had enacted— the public interest in “permitting] a court to assess its sentence upon the most complete and current information” and the public interest in “correction of an erroneously conducted trial.” 247 Or at 313-14. The court decided that because the legislature had granted a right of criminal appeal and because the “public has no interest in foreclosing the correction of an erroneously conducted trial,” the appropriate procedural policy should be “not to limit that right by requiring the defendant to risk a more severe sentence in order to exercise that right of appeal.” Id. at 313, 315. A different rule, the *28court decided, “would ‘chill’ a defendant’s desire to correct an erroneously conducted initial trial,” id. at 313, and require a reviewing court to “make a subjective determination whether the new information justified and was in fact the motive for the more severe sentence,” raising “difficulties in judicial administration,” id. at 314.
The court in Turner was not required to reach that particular result and could have ruled, as the majority in this case apparently would have, that the fact that the legislature had not expressly precluded a harsher sentence on remand permitted just that. But the court did not do so. During the 43 years that have intervened between Turner and Partain, the Oregon legislature had authority to overrule or alter the court’s decision in Turner. But the legislature did not do so. Given the authority of those entities, it is, in my view, the majority in Partain that assumes policy-making responsibility that belongs elsewhere.
First, the majority extends its authority beyond that necessary to decide the case before it. In this case, the trial court imposed a harsher sentence on defendant after defendant successfully appealed an error in sentencing, not an error in the underlying conviction. The rule that the court announced in Turner explicitly did not address that circumstance. The court stated:
“After an appeal or post-conviction proceeding has resulted in the ordering of a retrial for errors other than an erroneous sentence * * * and the defendant has again been convicted, no harsher sentence can be given than that initially imposed.”
247 Or at 313 (emphasis added). Instead of overruling Turner, the majority could have refused to extend its rule to successful appeals of sentencing errors.
Second, the majority reaches a different result than did the court in Turner without an argument from the state that the grounds for overturning longstanding precedent as stated in G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54, 59, 757 P2d 1347 (1988), are satisfied, 349 Or at 18, and without itself reaching that conclusion.1 The majority relies, *29for reconsideration, on statutes enacted by the Oregon legislature since Turner but does not conclude, and cannot conclude, in the words of Kaiser Foundation Hospitals, Inc., that those statutes “altered some essential legal element assumed in the earlier case.” Kaiser Foundation Hospitals, Inc., 306 Or at 59.
The statutes on which the majority relies neither limit a defendant’s right to appeal a wrongful conviction nor indicate a legislative intent to expose a defendant to a risk that he or she will receive a harsher sentence if successful in appealing a wrongful conviction. ORS 138.222(5)(a) overrules a Court of Appeals case, State v. Smith, 116 Or App 558, 842 P2d 805 (1992), adh’d to on recons, 120 Or App 438, 852 P2d 934 (1993), and ensures that a trial court may, on remand from a successful appeal of a sentencing error, reconstruct a collective sentence to impose the same total sentence previously imposed. ORS 138.222(5)(a) does not address remand from a wrongful conviction, much less grant trial courts authority to impose harsher sentences after a successful appeal from a wrongful conviction. ORS 138.222(5)(b) does address remand from a successful appeal of a conviction, but only permits trial courts to resentence the defendant on affirmed convictions. It does not address sentencing on remand from reversed convictions, nor does it grant trial courts authority to impose harsher sentences after a successful appeal or indicate a philosophical interest in permitting such sentences.
ORS 138.222(4), (7) permits the state to appeal from sentences in felony cases on the ground that the law required a different sentence. Granting the state a right to insist that a lawful sentence is imposed does not indicate a legislative intent to permit a trial court to impose a harsher sentence on a defendant who exercises the same right. To me, it indicates a legislative interest to ensure that any sentence that is imposed be legally sound. Turner is consistent with that intent. If a defendant knows that appeal of an invalid sentence will expose him or her to the risk of a harsher sentence, the defendant will be less likely to seek correction of that *30sentence — a correction that the legislature deems to be in the public interest.2
The majority does not contend that the statutes on which it relies alter the right to appeal a wrongful conviction or any other essential element of Turner but instead asserts that those statutes are “at odds” with the “right of criminal defendants to appeal free of the risk of a more severe sentence on remand.” 349 Or at 20.1 do not perceive the conflict that the majority observes, but, more importantly, the majority itself recognizes that Oregon law continues to grant criminal defendants the right to appeal free from the very risk of a more severe sentence that Turner addresses — the risk of vindictive sentencing:
“[T]o the extent that that sort of vindictive sentencing occurs, it undoubtedly is unlawful: The statutory right of appeal provided at ORS 138.020 may carry with it risks, as we today hold, but no conceivable construction of the statute’s wording supports the idea that the legislature intended to grant to trial judges the authority to use their sentencing power to impose more lengthy sentences on remand for the purpose of punishing defendants for bringing appeals.”
349 Or at 23.
After construing Oregon law to preclude vindictive sentencing, the majority notes that the Due Process Clause of the federal constitution includes the same prohibition. The majority then decides that the rule devised by the Supreme Court in North Carolina v. Pearce, 395 US 711, 89 S Ct 2072, 23 L Ed 2d 656 (1969), is sufficient to address that concern. 349 Or at 25. In so doing, the majority calls attention to the essential role of the judiciary and makes my point.
The Due Process Clause does not state explicitly the procedure that a reviewing court should use to protect against vindictive sentencing. Nevertheless, the Supreme Court determined, in Pearce, that, whenever a judge imposes a more severe sentence after a new trial, the reasons for doing so must affirmatively appear. Id. at 725-26. The *31Supreme Court did not exceed its authority in imposing that requirement; it fulfilled its constitutional role. The court in Turner did the same. The difference is not in the authority exercised, but in the rule crafted.
In the years since Pearce, the Supreme Court has made clear that Pearce does not state a bright-line test or even impose a presumption of vindictiveness for harsher sentences:
“While the Pearce opinion appeared on its face to announce a rule of sweeping dimension, our subsequent cases have made clear that its presumption of vindictiveness ‘do[es] not apply in every case where a convicted defendant receives a higher sentence on retrial.’ ”
Alabama v. Smith, 490 US 794, 799, 109 S Ct 2201, 104 L Ed 2d 865 (1989) (quoting Texas v. McCullough, 475 US 134, 138, 106 S Ct 976, 89 L Ed 2d 104 (1986)). As a result, by adopting the Pearce rule as the only test of the validity of a sentence on remand after a successful appeal, the majority requires reviewing courts to do just what the court in Turner sought to avoid; viz., deciding whether the case before them is one “in which there is a ‘reasonable likelihood’ that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.” Nulph v. Cook, 333 F3d 1052, 1057 (9th Cir 2003) (quoting Alabama v. Smith, 490 US at 799).
Oh, the endless questions and appeals and consumption of judicial time we have purchased.
Is there a presumption of vindictiveness? See Texas v. McCullough, 475 US at 138-40 (no presumption of vindictiveness when defendant resentenced by trial judge after originally sentenced by a jury); United States v. Goodwin, 457 US 368, 384, 102 S Ct 2485, 73 L Ed 2d 74 (1982) (presumption of vindictiveness not warranted in the pretrial plea negotiation context, even though “[t]here is an opportunity for vindictiveness”); Chaffin v. Stynchcombe, 412 US 17, 26-27, 93 S Ct 1977, 36 L Ed 2d 714 (1973) (no presumption of vindictiveness when defendant is resentenced by a jury); Colten v. Kentucky, 407 US 104, 116-17, 92 S Ct 1953, 32 L Ed 2d 584 (1972) (no presumption of vindictiveness when defendant convicted of misdemeanor in an inferior *32court was later convicted of a felony after trial de novo in a court of general jurisdiction).
If there is a presumption of vindictiveness, has it been overcome? See Nulph, 333 F3d at 1059-60 (insufficient evidence in the record that petitioner elected to apply an unfavorable rule at parole board hearing; therefore state did not rebut presumption of vindictiveness); Bono v. Benov, 197 F3d 409, 421 (9th Cir 1999) (victim letter contained in “contemporaneous notes and memoranda,” but not in written notice of decision, insufficient to rebut the presumption of vindictiveness); Hurlburt v. Cunningham, 996 F2d 1273, 1276 (1st Cir 1993) (presumption rebutted by judge’s reference to presentence report, the defendant’s record, and what he observed during trial); United States v. GallegosCuriel, 681 F2d 1164, 1168 (9th Cir 1982) (burden shifts to prosecution to show that increase in the severity of the charges did not stem from vindictive motive or was justified by independent reasons or intervening circumstances).
If the Oregon legislature had decided that the bright-line rule adopted by the court in Turner to protect the right of appeal and guard against vindictive sentencing was too restrictive, that times have changed, and that reviewing courts of this state should determine, instead, whether sentencing judges, in truth, were vindictive, I would, of course, apply that rule. But absent clear legislative direction to do so, I would not subject Oregon judges to that inquiry. I would not disturb the basic premise upon which Turner rested, and rested for 43 years — that a defendant should not be required “ ‘to barter with his life for the opportunity of exercising’ ” the right to a criminal appeal. Turner, 247 Or at 316 (quoting State v. Wolf, 46 NJ 301, 309, 216 A2d 586, 590 (1966)). I respectfully dissent.
The majority does state, mirroring the words of Kaiser Foundation Hospitals, Inc., that the court’s decision in Turner “was both not fully considered and wrong in *291965.” 349 Or at 22. However, the majority does so only after already deciding that reconsideration is appropriate for the statutory reasons that it discusses. Id.
See State v. Thompson, 231 Or App 193, 217 P3d 697 (2009) (more severe sentence permitted on resentencing when statutorily mandated).