concurring and concurring specially.
I concur because I agree with the majority that the binding precedent of Anthony v. Hopper, 235 Ga. 336, 337 (1) (219 SE2d 413) (1975), controls the methodology as well as the outcome in this case. However, I write specially to explain why I believe the “count-by-count” approach adopted in Anthony can create unintended consequences in cases like the present one, where the presumption of vindictiveness applies even though the record provides no real evidence of actual vindictiveness by the trial judge during resentencing.2
*407In Anthony, the Supreme Court of Georgia determined that the defendant’s new sentence was more severe than his initial sentence — and thus that the presumption of vindictiveness should apply under North Carolina v. Pearce, 395 U. S. 711 (89 SC 2072, 23 LE2d 656) (1969) —by comparing the new sentence and initial sentence on a count-by-count basis, rather than in the aggregate. Anthony, 235 Ga. at 337 (1). Here, the presumption of vindictiveness applies under Anthony because Blake’s sentence increased as to Count 1, the serious injury by vehicle count, even though Blake’s sentence as a whole was reduced by the trial judge on remand.3
The presumption applies, even though there is no real evidence of actual vindictiveness by the trial judge. Rather, the record reflects that the trial judge was concerned about sentencing the defendant to probation on the only remaining felony count, serious injury by vehicle, once the kidnapping count had been vacated. When defense counsel suggested that Blake’s probation sentence on the felony count could not be changed on remand, the trial judge stated: “And so, your version of it is — is I’m faced with serious injury by vehicle; I’m obligated to sentence him to five years on probation?” Later during the resentencing, the judge reiterated his concern: “I understand that and the reality of it is, I would have never sentenced him to five years on probation for serious injuries by vehicle. If I hadn’t had the ten years service time [on the kidnapping count] ... to precede that.”4
The trial judge’s concern about resentencing Blake only to probation on the felony count is not surprising, given that the trial judge had presided over Blake’s original plea and sentencing, where it was explained that the victim in this case was seriously injured and became paralyzed from the waist down as a result of Blake’s wrecking the vehicle in which she was a passenger. Blake wrecked the vehicle while intoxicated, and while he was driving approximately 95 miles per hour. Indeed, Blake had five previous DUI convictions, and he was driving the vehicle that he wrecked even though his driver’s license had been suspended. Moreover, in addition to his DUI convictions, Blake had an extensive criminal record, including, among *408other things, three prior felony habitual violator convictions, convictions for theft by taking, attempting to elude a law enforcement officer, obstruction of justice, and shoplifting, plus multiple probation violations. As a result of Blake’s previous felony convictions, the judge originally sentenced Blake as a recidivist pursuant to OCGA § 17-10-7 (c).5 Under these circumstances, it is hardly surprising that the trial judge would be opposed to resentencing Blake only to probation on the remaining felony count.
In my view, a framework under which the Pearce presumption is made to apply in such a context sweeps too broadly. When the presumption applies, we have held that it can be overcome only if the trial court’s reasons for imposing the new sentence “affirmatively appear” on the record. Kelley v. State, 248 Ga. App. 721, 724 (2) (548 SE2d 357) (2001), quoting Pearce, 395 U. S. at 726. “Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” (Emphasis supplied.) Kelley, 248 Ga. App. at 724. Given what must be shown to overcome the presumption, it ought to apply only in circumstances where there is a real likelihood of actual vindictiveness by the trial judge. See Alabama v. Smith, 490 U. S. 794, 799 (109 SC 2201, 104 LE2d 865) (1989) (noting that Pearce presumption “was premised on the apparent need to guard against vindictiveness in the resentencing process”) (citation and punctuation omitted; emphasis in original). However, the “count-by-count” approach adopted in Anthony — under which the Pearce presumption applies if a defendant’s sentence is increased on any one count during the course of resentencing — sweeps much more broadly and requires the presumption to apply in situations where, as here, actual vindictiveness is unlikely.
Perhaps recognizing as much, a majority of federal circuit courts of appeal that have addressed when to apply the Pearce presumption have rejected the “count-by-count” approach adopted by the Supreme Court of Georgia in Anthony. These courts instead employ the “aggregate package” approach. See Sexton v. Kemna, 278 F3d 808, 812-814 (8th Cir. 2002) (discussing application of Pearce as part of *409determining, in course of habeas corpus review, whether state appellate court unreasonably applied federal law); United States v. Campbell, 106 F3d 64, 67-69 (5th Cir. 1997) (surveying federal case law and adopting majority approach); United States v. Sullivan, 967 F2d 370, 374-375 (10th Cir. 1992); United States v. Mancari, 914 F2d 1014, 1021-1022 (7th Cir. 1990); Kelly v. Neubert, 898 F2d 15, 16 (3rd Cir. 1990); United States v. Pimienta-Redondo, 874 F2d 9, 16-18 (1st Cir. 1989) (en banc) (plurality); United States v. Gray, 852 F2d 136, 138-139 (4th Cir. 1988); United States v. Bay, 820 F2d 1511, 1512-1514 (9th Cir. 1987). See also State v. Nelloms, 759 NE2d 416, 419-421 (Ohio Ct. App. 2001) (surveying federal case law and adopting “aggregate package” approach). But see United States v. Monaco, 702 F2d 860, 885 (11th Cir. 1983); United States v. Markus, 603 F2d 409, 413 (2nd Cir. 1979).6 Under the “aggregate package” approach, “courts compare the total original sentence to the total sentence after resentencing. If the new sentence is greater than the original sentence, the new sentence is considered more severe.” Campbell, 106 F3d at 68.
I find these federal cases persuasive and believe that the “aggregate package” approach has advantages over the “count-by-count” approach for several reasons. First, the “count-by-count” approach is overly inclusive because it can lead to the application of the Pearce presumption in cases where, as here, the defendant’s new sentence is less than his original sentence when viewed in the aggregate, hardly a circumstance where trial court vindictiveness is likely to be present.7 See Sullivan, 967 F2d at 375 (noting that vindictiveness claim in *410context where defendant received a lighter sentence after remand for resentencing was simply “without merit”); Kelly, 898 F2d at 18 (noting that “Pearce's per se prophylactic rule should not be mechanically applied when some of a defendant’s individual sentences are increased, but his aggregate sentence is reduced on remand following a successful appeal”). “Where the sentencing judge’s motivation cannot be called fairly into question, there is no need to indulge in the conjecture, and run the risks, which the Pearce presumption necessarily entails.” Pimienta-Redondo, 874 F2d at 13.
Second, as the Fifth Circuit Court of Appeals has explained,
the aggregate approach best reflects the realities faced by [trial] judges who sentence a defendant on related counts of an indictment. Sentencing is a fact-sensitive exercise that requires [trial] judges to consider a wide array of factors when putting together a sentencing package. When an appellate court subsequently reverses a conviction (or convictions) that was part of the original sentence, the [trial] 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. The aggregate approach’s inherent flexibility best comports with this important goal.
(Citations, punctuation and footnote omitted.) Campbell, 106 F3d at 68. See also Pimienta-Redondo, 874 F2d at 14.8 Put another way, the “aggregate package” approach provides the trial court with a greater range of flexibility to effectuate its “original sentencing intent” when the initial sentencing package has become “unbundled” on appeal (United States v. Shue, 825 F2d 1111, 1115 (7th Cir. 1987)), particularly when all of the crimes committed by the defendant “were part and parcel of the same underlying unlawful conduct” (Mancari, 914 F2d at 1021), or when the character and criminal history of the defendant are significant under the circumstances. Bay, 820 F2d at 1514.
*411Decided March 23, 2005. Carnesale & DeLan, Charles C. Flinn, for appellant. Jeffrey H. Brickman, District Attorney, Alison T. Burleson, Assistant District Attorney, for appellee.For these reasons, although I have concluded that the reasoning as well as the ultimate decision reached by the majority in this appeal is mandated by the binding precedent of Anthony, I also respectfully believe that the Supreme Court of Georgia should revisit that framework and consider modifying it or adopting the “aggregate package” approach utilized in a majority of federal courts. Such an approach would help ensure that a trial judge is not prohibited from increasing a defendant’s sentence on a particular felony count on remand merely because the judge happened to choose the wrong felony count on which to initially sentence the defendant to probation, as occurred here.
While an isolated statement made by the trial judge “could be read to suggest” vindictiveness during resentencing, that one statement must be read in context with the other comments made by the trial judge during the course of the two hearings conducted for purposes of resentencing. See Phillips v. State, 275 Ga. 595, 599 (8) (571 SE2d 361) (2002) (noting that *407trial judge’s comment during sentencing that case “will be heavy on my heart” could not he viewed in isolation but had to he read in context). Read in that light, it is clear from the record as a whole that the trial judge was not punishing Blake on the kidnapping count over which he did not have venue. Rather, he was attempting to ensure that Blake received prison time rather than probation on the remaining felony count of serious injury by vehicle, given the serious nature of Blake’s underlying conduct and his extensive prior criminal record, both of which are discussed below.
Blake was previously sentenced to ten years imprisonment and fifteen years probation, but he was resentenced on remand to five years imprisonment and four years probation.
The trial judge also affirmatively stated in his resentencing order that “this re-sentencing is not intended to penalize the defendant in any way for exercising his right to appeal.”
OCGA § 17-10-7 (c) provides:
Except as otherwise provided in subsection (b) of this Code section, any person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state other than a capital felony must, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.
The minority federal approach adopted by the Second and Eleventh Circuit Court of Appeals is also different from the “count-by-count” approach taken in Anthony. Under the approach adopted in these two circuits,
appellate courts compare the [trial] court’s aggregate sentence on the nonreversed counts after appeal with the original sentence imposed on those same counts before appeal. If the new sentence on the remaining counts exceeds the original sentence on those counts, the Pearce presumption attaches.
Campbell, 106 F3d at 68 (discussing and explaining majority and minority approaches).
I recognize that even when a defendant’s aggregate sentence is reduced on remand, there is still at least a possibility that the trial court acted vindictively (see Kelly, 898 F2d at 18; Paul v. United States, 734 F2d 1064, 1067, n. 3 (5th Cir. 1984)), particularly the closer the new sentence is to the initial sentence in terms of severity. However, even when the Pearce presumption does not apply, the defendant still is entitled to have his new sentence vacated if he presents evidence of actual vindictiveness (see Alabama, 490 U. S. at 799-800), and I see no reason why the closeness in severity of the two sentences cannot be one factor to consider as part of the analysis of whether actual vindictiveness was present. See, e.g., Kelly, 898 F2d at 18 (noting that reduction of aggregate sentence from seventeen to ten years, combined with the lack of any other evidence suggesting actual vindictiveness, indicated that trial court did not act with an improper motive). Furthermore, when the new aggregate sentence is less than but close to the initial sentence in terms of severity, a trial court can do much to dispel any concern over actual vindictiveness “by briefly stating its reasons for the new sentences” during the resentencing hearing. Id.; see also Paul, 734 F2d at 1067, n. 3.
The court in Pimienta-Redondo also explained:
[W]hen a defendant is found guilty on a multicount indictment, there is a strong likelihood that the [trial] court will craft a disposition in which the sentences on the various counts form part of an overall plan. When the conviction on one or more of the component counts is vacated, 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, if that appears necessary in order to ensure that the punishment still fits both crime and criminal.
Pimienta-Redondo, 874 F2d at 14.