dissenting.
I respectfully dissent because the opinion of the majority endorses an analysis by the Court of Appeals which is diametrically opposed to the precedent of this Court and which is incompatible *521with the established criminal jurisprudence of this State.
We granted certiorari to the Court of Appeals in Adams v. State, 299 Ga. App. 39 (681 SE2d 725) (2009), to consider the sole issue of the appropriate analysis for determining whether a trial court’s resentencing of a defendant results in a more severe sentence under North Carolina v. Pearce, 395 U. S. 711 (89 SC 2089, 23 LE2d 656) (1969), and thereby, to examine the propriety of the Court of Appeals’s adoption of an “aggregate approach.” We did so because the Court of Appeals’s approach is at odds with the unanimous and unequivocal determination by this Court in Anthony v. Hopper, 235 Ga. 336, 337 (1) (219 SE2d 413) (1975), that the “count-by-count” analysis is the appropriate methodology to assess any increased severity of punishment upon resentencing.
As noted by the majority, the defendant in this case, Tavins Lee Adams, was found guilty of child molestation, aggravated child molestation, aggravated sodomy, and enticing a child for indecent purposes. All charges arose from a single incident against the 11-year-old daughter of a friend. The trial court merged the conviction for aggravated child molestation into the conviction for aggravated sodomy for the purpose of punishment and sentenced Adams to 20 years in prison for each of the remaining three counts, a total of 60 years. The trial court granted, in part, Adams’s motion for new trial by merging, for the purpose of sentencing, his conviction for child molestation into his conviction for aggravated sodomy; Adams was resentenced to 30 years in prison for aggravated sodomy and 20 years for enticing a child for indecent purposes, a total of 50 years.
Adams appealed to the Court of Appeals, claiming, inter alia, that the trial court impermissibly increased his sentence for aggravated sodomy because the sentence imposed upon resentencing was more severe than his original sentence. Adams v. State, supra at 42 (4). The Court of Appeals recognized that, pursuant to North Carolina v. Pearce, a trial court is limited in its ability to increase a defendant’s sentence upon resentencing, and that a presumption of vindictiveness may apply when a more severe sentence is imposed on resentencing. Adams v. State, supra at 42 (4). Citing Alabama v. Smith, 490 U. S. 794, 799-800 (109 SC 2201, 104 LE2d 865) (1989), the Court of Appeals further recognized that this presumption is limited to cases
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. Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness.
*522Id. at 42-43 (4).
. Thus, the threshold determination must be the severity of a defendant’s resentence relative to the original punishment imposed. The Court of Appeals found that the severity of Adams’s sentence was not increased because the trial court initially sentenced him to an aggregate of 60 years in prison and later resentenced him to an aggregate of 50 years in prison for counts arising out of the same indictment. Adams v. State, supra at 43 (4). The Court further stated that there was no reasonable likelihood that the sentence resulted from actual vindictiveness because, immediately before Adams’s resentencing, the trial court granted his request to merge his conviction for child molestation. Id. In utilizing the “aggregate approach,” the Court of Appeals acknowledged that in Anthony v. Hopper, this Court applied a “count-by-count” approach in determining that a defendant’s sentence had been increased in the situation in which the trial court had eliminated a three-year sentence on one count but added three years to the defendant’s sentence on another count. Adams v. State, supra at 43 (4). However, it attempted to distinguish that case by noting that in Anthony v. Hopper, the defendant had initially been sentenced for multiple counts arising out of two separate incidents, and that it had already determined in Blake v. State, 272 Ga. App. 402, 404 (1) (612 SE2d 589) (2005), “that Anthony may not be applicable if the trial court initially sentenced the defendant under a ‘comprehensive sentencing scheme’ for multiple counts arising out of the same facts and circumstances.”
The analysis and conclusion of the Court of Appeals is fatally flawed. Yet, the majority follows its lead. First, the majority concludes that Adams’s resentence is “proper” and affirms the judgment of the Court of Appeals based upon its finding that the Pearce presumption of vindictiveness is inapplicable inasmuch as the trial court brought about the new sentence with its partial grant of a motion for new trial. To reach this conclusion, the majority relies upon Texas v. McCullough, 475 U. S. 134 (106 SC 976, 89 LE2d 104) (1986), which it represents as having “similar facts.” But, the facts are anything but similar. In Texas v. McCullough, the defendant was tried before a jury, convicted of murder, and was sentenced by the jury to 20 years. The trial judge then granted the defendant’s motion for a new trial on the basis of prosecutorial misconduct. The defendant was retried before a jury, with the same trial judge presiding, and again was found guilty; however, in contrast to his first sentencing, the defendant elected to have the judge rather than the jury determine punishment, and the judge imposed a 50-year sentence. The judge issued express findings of fact about the more severe sentence, explaining that on retrial there was additional *523evidence of the defendant’s culpability, including the testimony of new witnesses which directly implicated the defendant in the commission of the murder and revealed that the defendant had been released from prison only four months prior to the murder. Furthermore, the Pearce presumption was held inapplicable, inter alia, because different entities, the jury and the trial judge, assessed the varying sentences, and the second sentencer, i.e., the trial judge, provided an on-the-record, logical, and non-vindictive reason for the longer sentence. That is hardly the situation in Adams’s case. In granting in part Adams’s motion for new trial, the trial court apparently did what it was legally obligated to do because of the factual merger of the two crimes at issue; it was not a matter of judicial discretion. And, the Court of Appeals did not identify any new evidence on retrial relating to Adams’s culpability or any reason given by the trial court on resentencing to explain or attempt to justify the substantially harsher punishment.
The majority glosses over the absence of the critical circumstances present in Texas v. McCullough, and thus deems them of no legal consequence, including the trial judge’s rationale for the increased sentence. But, the significance of such circumstances has been recognized by the Court of Appeals itself. See Chambers v. State, 213 Ga. App. 414, 418 (5) (444 SE2d 820) (1994). Indeed, just recently, the Court of Appeals unequivocally stated that Pearce requires the trial court to include in the record an affirmative statement of the reasons for the increase in punishment upon resentencing, and that those reasons support the imposition of the harsher penalty. Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010). Even if the presumption does not come into play, the issue of the legally correct yardstick for determining whether the severity of punishment has been increased remains relevant under Pearce because “[w]here the prophylactic rule of Pearce does not apply, the defendant may still obtain relief if he can show actual vindictiveness upon resentencing.” Texas v. McCullough at 138 (II). There is no question that the presumption of vindictiveness is limited; however, finding the presumption inapplicable begs the question in this appeal. Whether the defendant Adams will ultimately prevail is not determinative.
In Anthony v. Hopper, the petitioner entered guilty pleas under two separate indictments, one charged him with two counts of the sale of heroin on August 3 and 8, 1972, and the other accused him of possession of heroin on August 3, 1972. He was sentenced to a five-year concurrent term for each of the sale counts and a five-year term for possession, to serve three years consecutive to the concurrent sentences, with the remaining two years suspended. Anthony v. Hopper, supra at 336. Consequently, the petitioner was sentenced to serve a total of eight years. Id. A habeas court determined that the *524petitioner could not receive multiple sentences for lesser-included offenses involved in a single transaction and ordered the remand of his case to the trial court for resentencing as to either the August 3 sale or the August 3 possession, with the five-year sentence for the August 8 sale remaining in place. Id. Consequently, the trial court issued a nunc pro tunc order resentencing the petitioner to an eight-year term for the August 3 sale. Id. at 337. In a subsequent habeas proceeding, the petitioner contended, inter alia, that the trial court was not authorized to increase the penalty on one indictment so that it equaled the total penalty imposed formerly on the two indictments. Id. Citing North Carolina v. Pearce, this Court noted that while there was no absolute constitutional bar to imposing a more severe sentence upon resentencing, it was impermissible for vindictiveness to be the motivation, and that the threshold step in the analysis was to ascertain whether the petitioner’s sentence was, in fact, increased. This Court then unequivocally determined that the petitioner’s sentence had indeed been increased because the term of his punishment on the sale count had been extended from five years to eight years. Anthony v. Hopper, supra at 337 (1). It was of no moment to the analysis that the petitioner’s aggregate term of imprisonment remained the same. The severity of his sentence was unquestionably increased.
In Blake v. State, supra, the Court of Appeals recognized and applied this Court’s clear endorsement of the “count-by-count” methodology for the purpose of North Carolina v. Pearce. It expressly acknowledged that,
[t]he first question to be answered is whether [the defendant’s] sentence was, in fact, increased, because the Pearce presumption applies only when a judge imposes a more severe sentence on resentencing. [Cit.] The answer in this case turns on whether severity of the new sentence is judged on a count-by-count basis or in the aggregate on all counts.
In Anthony, the Supreme Court of Georgia held that even though Anthony’s new sentence was the same as the aggregate of his original sentence on multiple counts, where the sentence for an individual count had increased from five years to serve to eight years to serve, his sentence had been increased for the purpose of Pearce. [Cit.] Accordingly, under Anthony, we look to the individual counts to answer the question.
Blake v. State, supra at 403 (1) (citations and punctuation omitted). Nevertheless, the Court of Appeals then sought to justify the reasoning and results of two of its earlier cases, Alvarado v. State, *525248 Ga. App. 810 (547 SE2d 616) (2001), and Duffey v. State, 222 Ga. App. 802 (476 SE2d 89) (1996), by explaining that the cases involved “multiple count indictments” arising from the same circumstances and a “comprehensive sentencing scheme.” Blake v. State, supra at 404 (1). It concluded that those cases “suggest that the Pearce presumption may not be applicable . . . where some subset of the counts are lost on appeal, so long as the aggregate sentence on all counts does not increase upon resentencing.” But, this conclusion by the Court of Appeals brings confusion to this area of the law and is incompatible not only with this Court’s prior resounding adoption of the “count-by-count” approach as a threshold to the North Carolina v. Pearce analysis but with the established jurisprudence of this State. To the extent that Blake v. State, and the cases discussed therein suggest the propriety of or approve an “aggregate approach” in the context of North Carolina v. Pearce, they should be overruled. But instead, the majority endorses such antithetical approach.
The states are split on the appropriate analysis in assessing the severity of a resentencing of a defendant, with, as the majority notes, a number of foreign jurisdictions and some of the federal courts adopting an “aggregate approach” or a variation thereof. But, sister states that have confirmed the appropriateness of the “count-by-count” assessment have done so out of deference to and in accord with their state statutory and case law.1 This Court should follow suit. The “count-by-count” methodology is consistent with the general rule of Georgia criminal law “that when individual acts are prohibited, each act is punished separately.” Pryor v. State, 238 Ga. 698, 700 (1) (234 SE2d 918) (1977), disapproved on other grounds in Montes v. State, 262 Ga. 473, 475 (1) (421 SE2d 710) (1992); Russell v. State, 243 Ga. App. 378, 382 (5) (532 SE2d 137) (2000). Similarly, the Supreme Court of Ohio rejected the consideration of resentences in the aggregate, or as a “sentencing-package” because in that state, as in Georgia, a judge sentencing a defendant is to consider each offense separately for the purpose of assessing punishment. State v. Saxon, 846 NE2d 824, 829 (Ohio 2006). The Saxon court logically looked to its own state criminal law rather than to the federal scheme to resolve the question of appropriate methodology.
The scrutiny of each criminal charge, in the context of multiple criminal charges, is crucial in assessing the concerns of placing an individual in jeopardy of life or liberty more than once for the same offense. See Ga. Const, of 1983, Art. I, Sec. I, Par. XVIII. The procedural and substantive bars against double jeopardy, respec*526tively, are embodied in our state statutory scheme in OCGA § 16-1-8 and in OCGA § 16-1-7. Howard v. State, 301 Ga. App. 230, 231 (687 SE2d 257) (2009). This includes the legislative imposition of a rule of criminal res judicata. OCGA § 16-1-7 (b); Drinkard v. Walker, 281 Ga. 211, 214 (636 SE2d 530) (2006). Furthermore, in the context of a criminal judgment, the judgment is res judicata with regard to “every fact in issue which is actually or necessarily adjudicated by that judgment.” State v. Allen, 262 Ga. App. 724, 726 (1), n. 8 (586 SE2d 378) (2003); OCGA § 9-12-40. This has broad implications for the rights of a criminal defendant on appeal because ordinarily, the appellate court’s “determination on direct appeal of a criminal judgment is res judicata, and a criminal defendant is not entitled to another bite at the apple by way of a second appeal.” Ward v. State, 299 Ga. App. 63, 64 (682 SE2d 128) (2009) (citation and punctuation omitted).
The concept of distinct and discreet consideration of criminal charges in imposing punishment resonates throughout our criminal code. As Adams points out, his case is a prime example of the important implications of the sentence levied for each criminal charge. A conviction for aggravated sodomy, by itself, now carries unique legal significance because the General Assembly has set such crime apart as a “serious violent felony,” subject to a mandatory sentencing scheme and probation and parole restrictions. See OCGA § 17-10-6.1 (a) (6), (b) (2) (D). The concept of the importance of assessing each criminal count for the purpose of sentencing is starkly evident when the crimes involved result in the defendant being subject to sentencing under Georgia’s recidivist statute. See OCGA § 17-10-7.
So too, this Court recently affirmed that for the purpose of an Eighth Amendment proportionality analysis, the focus must be on the sentence imposed for each specific crime, not on the cumulative sentence, noting that,
[i]f a proportionality review were to consider the cumulative effect of all the sentences imposed, the result would be the possibility that a defendant could generate an Eighth Amendment disproportionality claim simply because that defendant had engaged in repeated criminal activity. . . . [F]or purposes of the Eighth Amendment. . ., proportionality review should focus on individual sentences rather than on the cumulative impact of multiple sentences imposed consecutively.
Rooney v. State, 287 Ga. 1 (690 SE2d 804) (2010).
As noted in State v. Saxon, supra, an aggregate or “sentencing *527package” analysis may be better suited to the federal system, in which there are “many multicount and interrelated sentencing enhancements considered and used by federal judges applying the Federal Sentencing Guidelines.” Id. at 827. See also Wilson v. State, 170 P3d 975, 978 (Nev. 2007). Simply, our General Assembly has crafted statutes affecting and effecting the sentencing aspects of our criminal law “in a manner that mandates individual consideration of each offense during sentencing and allows meaningful review of the sentence for each offense individually on appeal.” State v. Saxon, supra at 830. Any adoption of an approach which considers resentencing in the aggregate for the purpose of North Carolina v. Pearce “would dismantle that carefully crafted statutory scheme.” State v. Saxon, supra at 830.
Decided July 12, 2010. Robert L. Persse, for appellant.The majority stresses the importance of an approach that best reflects the realities faced by trial judges. Such argument defeats rather than supports the adoption of an aggregate approach because while an aggregate analysis may comport with federal jurisprudence and that of some foreign states, our state trial judges must comply with the mandates of our state sentencing scheme, which unquestionably reflects the count-by-count analysis already adopted by this Court. Our State does not punish crimes in the aggregate, but holds a defendant accountable for each criminal conviction. The majority also makes much of the fact that the merger of offenses on resentencing did not decrease Adams’s culpability. But, insofar as that is relevant to this appeal, it did not increase his culpability either. And, that is why the significantly harsher sentence (30 years instead of 20) on the remaining charge at issue must be carefully examined on its own.
Finally, the count-by-count approach, which has well-served its purpose since its express adoption in Anthony v. Hopper, in no manner limits the trial court in crafting appropriate sentences as claimed by the majority. It is quite the contrary. What it does is help ensure that any resentencing of a defendant is as lawful and just as the original sanctions imposed. It is illogical and contrary to the intent of the General Assembly for this Court to endorse an analysis on review, which is contrary to the methodology that must be utilized by our State judges in originally meting out punishment. The judgment of the Court of Appeals should be reversed and the case remanded to that Court for its reconsideration.
I am authorized to state that Chief Justice Hunstein and Justice Benham join in this dissent.
*528Richard A. Mallard, District Attorney, Daphne H. Jarriel, Assistant District Attorney, for appellee.See, e.g., Fasenmyer v. State, 457 So2d 1361 (Fla. 1984); People v. Sanders, 827 NE2d 17 (Ill. App. 1st Dist. 2005); State v. Saxon, 846 NE2d 824 (Ohio 2006).