State v. Bruna

Cassel, Judge.

INTRODUCTION

Jay E. Bruna appeals his resentencing for first degree sexual assault on a child because it exceeded the original sentence, which had been vacated. We conclude (1) that the presumption of vindictiveness in sentencing set forth in North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989), does not apply when the second sentencing judge is someone other than the initial sentencing judge and (2) that Bruna failed to prove actual vindictiveness. We…