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Osborne v. Commeweatlh of Kentucky11/13/1998
blished that when a criminal defendant successfully achieves relief, either through a direct or collateral attack to the conviction, he "may not be subjected to greater punishment for exercising that right." Id. at 1208. (Citing Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974)). The rebuttable presumption of vindictiveness is valid where there is a "realistic likelihood" of prosecutorial retaliation. In ascertaining the existence of a realistic likelihood, the "courts should focus on `the nature of the right asserted' and `the timing of the prosecutor's action.'" Turner, 858 S.W.2d at 1208. (Quoting United States v. Goodwin, 457 U.S. 368, 381-82, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982)).
The Supreme Court announced that the presumption was appropriate where the right asserted would require "duplicative expenditures of prosecutorial resources," and would require the State "to do over what it thought it had already done correctly." The Court pronounced the presumption especially warranted where the prosecutor moreover had a "personal stake" or there was "institutional bias against the retrial of a decided question." As for the timing of the prosecutor's action, the Supreme Court announced that "a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pre-trial decision." Turner, 858 F.2d at 1208. (Citations omitted).
Therefore, following the evidentiary hearing, should the trial court determine that Osborne suffered prejudice through ineffective assistance of counsel, the means by which to repair the constitutional deprivation is to restore him to the position in which he would have been had the denial not occurred, namely, serving a sentence harmonious to that offered by the Commonwealth. Lewandowski v. Makel, 949 F.2d 884, 889 (6th Cir. 1991). The Commonwealth may withdraw its prior offer only if it can rebut the presumption that the withdrawal is the product of prosecutorial vindictiveness.
For the foregoing reasons, the order of the McCracken Circuit Court denying appellant's RCr 11.42 motion and motion for an evidentiary hearing is reversed and remanded for proceedings consistent with this opinion.
ALL CONCUR.
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