Friedlander, J.
….
Sisson also claims that the refiling of the SVF charge and habitual offender allegation was vindictive. The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits prosecutorial vindictiveness. Blackledge v. Perry, 417 U.S. 21 (1974).
. . . .
Sisson has not directed our attention to any Indiana cases addressing the application of the presumption of vindictiveness where additional charges are filed after the declaration of a mistrial due to jury deadlock. He does, however, rely heavily on United States v. Whaley, 830 F.2d 1469 (7th Cir. 1987), abrogated on other grounds as recognized in United States v. Durrive, 902 F.2d 1221, 1228 (7th Cir. 1990). This case is not at all supportive of Sisson’s position on appeal and in fact supports the conclusion that the presumption of vindictiveness does not apply under these circumstances.
In United States v. Whaley, the Seventh Circuit addressed whether the presumption of vindictiveness should apply when the United States filed additional charges against the defendant after his first trial ended in a mistrial as a result of a deadlocked jury. The court first noted that the United States Supreme Court “has made clear that ‘the Due Process Clause is not offended by all possibilities of increased punishment . . . but only by those that pose a realistic likelihood of vindictiveness.’” Id. at 1477 (quoting United States v. Goodwin, 457 U.S. 368, 384 (1982)). The court held that in determining whether the presumption of vindictiveness applies in the context of a mistrial, the initial inquiry is into the cause of the mistrial. United States v. Whaley, 830 N.E.2d 1469. The court also stated that “[c]ourts have consistently held that no realistic likelihood of vindictiveness is found when a jury is deadlocked and both parties agree that a declaration of mistrial is a necessity.” Id. at 1478-79.
The court concluded that there was no realistic likelihood of vindictiveness in the case before it because the trial court had sua sponte declared a mistrial due to the jury’s inability to reach a verdict. United States v. Whaley, 830 F.2d 1469. Specifically, the court reasoned that “Appellant Whaley took no action; he exercised no statutory or constitutional right, and cannot now claim that he was penalized for exercising such a right.” Id. at 1479. The court noted further that the appellant had not alleged or demonstrated that the additional indictment was filed in order to discourage him from exercising such a right. United States v. Whaley, 12 830 F.2d 1469. The court therefore concluded that no presumption of vindictiveness had arisen. Id.; see also United States v. Perry, 335 F.3d 316 (4th Cir. 2003) (finding no prosecutorial vindictiveness where unopposed mistrial resulted from jury deadlock).
Despite Sisson’s arguments to the contrary, these are precisely the circumstances presented here. [Footnote omitted.] When the jury in Sisson’s first trial indicated that it was unable to reach a verdict, the trial court sua sponte declared a mistrial without objection from Sisson or the State. Because the mistrial did not result from Sisson’s exercise of any statutory or constitutional right, Sisson cannot claim that he was punished by the State for exercising such a right. Nor does Sisson argue that the additional charges were filed to discourage him from exercising such a right. Accordingly, there is no reasonable likelihood of vindictiveness, and the presumption of prosecutorial vindictiveness is not warranted.
BROWN, J., and PYLE, J., concur.