State defends longer post‑retrial sentence as based on evidence, not vindictiveness

Prosecutor Theodore Cropley told the panel that the increase in sentence at retrial was explained by additional evidence and not by vindictiveness. Cropley said the second sentencing judge "decided to respect the jury's verdict on the finding of the gang..." and argued that having a different judge impose the sentence weighs against a presumption of vindictiveness, though he acknowledged that other indicia could show otherwise.

A panel judge pushed on that point, asking whether merely having a different judge defeats the presumption or whether additional record indicia are necessary. Cropley answered that a different judge is "an additional layer of showing the lack of vindictiveness" but that an appellant could still introduce other evidence to prove vindictiveness. No decision was reached at argument.