MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 71
Docket: SRP-12-350
Argued: May 16, 2013
Decided: July 30, 2013
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.
STATE OF MAINE
v.
BRIAN NICHOLS
MEAD, J.
[¶1] Brian Nichols appeals from the sentence imposed on him following a
judgment of conviction entered in the trial court (Clifford, J.) after he pleaded
guilty to the intentional or knowing murder of his wife. See 17-A M.R.S. §
201(1)(A) (2012). Nichols challenges the sentencing court’s application of the
first step of the sentencing analysis required by 17-A M.R.S. § 1252-C(1) (2012),
arguing that the court failed to (1) adequately compare his conduct to prior
comparable cases in setting the basic period of incarceration, and (2) accurately
place his conduct on a continuum of seriousness of possible ways that the crime of
murder could be committed. He also argues that the unavailability of basic
sentence information implicates all criminal defendants’ equal protection and due
2
process rights. We affirm Nichols’s sentence and reject his constitutional
arguments.
I. BACKGROUND
[¶2] The following facts are established in the record. In May 2010, Brian
Nichols murdered his wife, Jane Tetreault, by shooting her in the head with a
.30-30 rifle while she lay in the couple’s bed. After shooting his wife, Nichols
called the police to report what he had done. The couple’s older son, then sixteen
years old, was in a nearby room during the murder and heard his mother scream.
When he heard the police sirens he got up, discovered his mother’s body, and “saw
blood everywhere.”
[¶3] Nichols had a long history of domestic violence toward Tetreault. For
at least the year or two before the killing, Nichols “perseverated” on his erroneous
belief that Tetreault was having an affair. He grew increasingly suspicious in the
weeks and months before her murder, causing frequent arguments for the couple,
including one in which Nichols broke their television. Tetreault, fearing that
Nichols would kill her, slept at her office and in her older son’s room with the door
locked. Concerned about Nichols’ increasingly erratic behavior, Tetreault made
plans to commit him involuntarily the night of her murder, but for unknown
reasons did not follow through with her plan.
3
[¶4] In the days prior to Tetreault’s murder, Nichols asked the couple’s
younger son, then fifteen years old, whether he would mind if Nichols killed his
mother. Nichols also repaired a broken .30-30 rifle, which had been stored in his
basement. He skipped work and had trouble sleeping.
[¶5] The day of the murder, Nichols smoked more marijuana than usual and
went to work. That evening, Nichols dropped his younger son off at a friend’s
house while he unsuccessfully searched for Tetreault. He later returned to the
house where his son was staying and had a beer with the friend’s father.
Afterward, he searched for Tetreault again, driving by her mother’s house and her
workplaces, eventually finding her at an office where she worked. After speaking
with Tetreault, Nichols left the office, drove by the house where his son was
staying, and returned home, where he found Tetreault’s car. That night, Nichols
murdered her in their home.
[¶6] Nichols was indicted for his wife’s murder pursuant to 17-A M.R.S.
§ 201(1)(A). He entered a plea of not guilty, later changing his plea to not
criminally responsible by reason of insanity. Nichols ultimately pleaded guilty
pursuant to an agreement with the State that it would not seek a sentence greater
than forty-two years’ imprisonment.
[¶7] The State and Nichols each submitted memoranda in aid of sentencing.
The State’s memorandum identified the facts and basic sentences in four Maine
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cases involving domestic violence homicides. In the first, where a defendant
severely beat his girlfriend and left her to die, the court set his basic sentence at
forty-five years because of the unprovoked, depraved, and brutal nature of the
crime. In the second, where a defendant strangled and beat his estranged wife with
a board, the court set his basic sentence at thirty-five to forty years because of the
crime’s brutality, rage, and victim suffering. In the third, where a defendant
repeatedly stabbed his girlfriend after she broke up with him, the court set the basic
sentence at fifty to sixty years. Finally, where a defendant repeatedly stabbed his
wife after learning of an affair, the court set the basic sentence at forty to fifty
years.
[¶8] At Nichols’s sentencing hearing, the State argued for a basic sentence
of thirty-five to forty years, identifying for the court the objective facts of the
murder relevant to the court’s task of setting a basic sentence: Nichols used a
firearm, he shot Tetreault at close range in or near her mouth, the murder was
premeditated, it was born of jealousy and rage, and it was committed in close
proximity to the couple’s son.
[¶9] Nichols argued for a basic sentence of thirty to thirty-five years. He
attached an extensive list of final murder sentences in Maine cases to his
sentencing memorandum, identifying the basic sentences imposed in two of them.
In the first, the court set the basic sentence at thirty years when a defendant beat
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the victim severely and killed her with a blow to the head with a hammer. In the
second, the court set the basic sentence at thirty years when a defendant strangled
his girlfriend after an argument. Despite an extensive search for basic sentences
that included talking with other defense attorneys and looking at files in three
different courthouses, Nichols asserted that he was unable to obtain data about
other defendants’ basic sentences in comparable cases.
[¶10] The sentencing court correctly noted that the determination of a basic
term of imprisonment, as required by the first step of the statutory sentencing
analysis, 17-A M.R.S. § 1252-C(1), involves considering the particular nature and
seriousness of the offense as committed by the offender. The court noted that the
sentencing memoranda submitted by the parties, with their descriptions of other
murder sentences, were “very helpful.” The court then cited the facts of the
murder that it considered in determining the basic period of Nichols’s
incarceration: (1) Nichols used a firearm to directly cause Tetreault’s death; (2) her
death was violent and premeditated; (3) one of the couple’s sons was in the home;
(4) her murder was an act of domestic violence; and (5) although Tetreault did not
have any prolonged suffering in her death, “she was put in great fear immediately
prior to . . . the homicide.” The court set Nichols’s basic sentence at thirty-five to
forty years. The court next considered, pursuant to step two of the sentencing
analysis, 17-A M.R.S. § 1252-C(2) (2012), the aggravating and mitigating
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circumstances applicable to Nichols, ultimately imposing a final sentence of forty
years in prison.
[¶11] Nichols filed a motion for findings of fact, which the court granted.
In its order, the court restated the standard for determining the basic period of
incarceration. It also explained that it “generally accepted the position of the State,
for the reasons advanced by the State, that the basic period of incarceration was
thirty-five to forty years,” and cited the facts of the murder it considered, including
that it was “planned and premeditated, committed with a rifle in the near presence
of a son, . . . [and] was the culmination of a long history of domestic violence
abuse . . . .” Pursuant to M.R. App. P. 20 and 15 M.R.S. § 2151 (2012), we
granted Nichols leave to appeal the forty-year sentence imposed.
II. DISCUSSION
[¶12] We first articulated the three-step process that a sentencing court is
required to follow in State v. Hewey, 622 A.2d 1151 (Me. 1993). The sentencing
analysis discussed in Hewey was later codified by the Legislature. P.L. 1995,
ch. 69, § 1 (effective Sept. 29, 1995) (codified at 17-A M.R.S. § 1252-C (2012)).
The statute provides that
the court shall employ the following 3-step process:
1. The court shall first determine a basic term of imprisonment
by considering the particular nature and seriousness of the offense as
committed by the offender.
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2. The court shall next determine the maximum period of
imprisonment to be imposed by considering all other relevant
sentencing factors, both aggravating and mitigating, appropriate to
that case. These sentencing factors include, but are not limited to, the
character of the offender and the offender’s criminal history, the effect
of the offense on the victim and the protection of the public interest.
3. The court shall finally determine what portion, if any, of the
maximum period of imprisonment should be suspended and, if a
suspension order is to be entered, determine the appropriate period of
probation to accompany that suspension.
17-A M.R.S. § 1252-C. In sentencing a defendant convicted of murder, the third
step does not apply. See 17-A M.R.S. § 1201(1)(A) (2012); State v. Waterman,
2010 ME 45, ¶ 25 n.1, 995 A.2d 243. In murder cases, the court must first
determine a basic period of incarceration and then evaluate the mitigating and
aggravating factors to determine the final sentence. Nichols’s arguments focus
solely on the first step, the court’s determination of his basic sentence “by
considering the particular nature and seriousness of the offense as committed by
the offender.” See 17-A M.R.S. § 1252-C(1).
[¶13] We review the sentencing court’s determination of the basic period of
incarceration for misapplication of sentencing principles. State v. Ardolino,
1997 ME 141, ¶ 24, 697 A.2d 73. “[A] basic sentence will survive appellate
scrutiny unless it appears to err in principle.” State v. Cookson, 2003 ME 136,
¶ 41, 837 A.2d 101 (quotation marks omitted). We also review the basic term for
8
an abuse of the court’s sentencing power. State v. Reese, 2010 ME 30, ¶ 23,
991 A.2d 806.
[¶14] The first step of the statutory sentencing process requires that the
court review the facts and nature of the crime and the conduct in committing the
crime in as objective a manner as possible, without regard to the offender’s
individual circumstances. See, e.g., State v. Hamel, 2013 ME 16, ¶ 6, 60 A.3d 783;
State v. Stanislaw (Stanislaw I), 2011 ME 67, ¶ 9, 21 A.3d 91. At the same time,
the court must take into account the sometimes-competing goals of sentencing that
include deterrence, restraint in the interest of public safety, minimization of
correctional experience that may promote future criminality, and the elimination of
inequalities in sentencing that are unrelated to criminological goals. 17-A M.R.S.
§ 1151 (2012); State v. Koehler, 2012 ME 93, ¶ 33, 46 A.3d 1134.
A. Comparison with Precedent
[¶15] Nichols first contends that the sentencing court was required to
expressly compare his conduct to precedent and that it erred by failing to do so.
We disagree, and take this opportunity to clarify the statutory sentencing process.
[¶16] We have previously held that it is permissible to compare the facts of
a defendant’s case to precedent. See, e.g., State v. Berube, 1997 ME 165, ¶¶ 5, 8,
& n.3, 698 A.2d 509 (affirming the sentencing court’s implicit determination of the
9
basic sentence because, among other reasons, it relied on sentencing data compiled
by a Superior Court justice).
[¶17] However, the language discussing the first step of the sentencing
process in some of our opinions may have been misperceived as requiring this
comparison as a mandatory sentencing element. See Cookson, 2003 ME 136, ¶ 38,
837 A.2d 101 (“The first step determines the basic period of incarceration by
examining the crime, the defendant’s conduct in committing it, and by looking at
other sentences for similar offenses.” (emphasis added)); Stanislaw I, 2011 ME 67,
¶ 8, 21 A.3d 91 (same); State v. Dalli, 2010 ME 113, ¶ 6, 8 A.3d 632 (same); State
v. Robbins, 2010 ME 62, ¶ 9, 999 A.2d 936 (same); Waterman, 2010 ME 45, ¶ 43,
995 A.2d 243 (same).
[¶18] Notwithstanding the possible interpretation of these cases to require
the sentencing court to make specific findings regarding precedent, we expressly
held in State v. Reese that the sentencing court was “not require[d] . . . to make
factual comparisons using precedent, although there may be times when
appropriate case comparisons would advance the sentencing principle of
eliminating significant unjustified inequalities in sentences.” 2010 ME 30, ¶ 28,
991 A.2d 806 (emphasis added) (citation omitted). Similarly, in State v. Stanislaw
(Stanislaw II), we explained that in step one of the sentencing process “[t]he court
examines the crime, the defendant’s conduct in committing it, and, at its
10
discretion, other sentences for similar offenses.” 2013 ME 43, ¶ 21, 65 A.3d 1242
(emphasis added). See also State v. Basu, 2005 ME 74, ¶ 23, 875 A.2d 686 (noting
that the sentencing court “may consider” sentences of other offenders for similar
conduct (emphasis added)).
[¶19] Nichols cites Stanislaw I for the proposition that the sentencing court
must expressly reference precedent. In Stanislaw I, we vacated Stanislaw’s
sentence because the sentencing court at step one improperly considered facts
relating to the impact of Stanislaw’s crimes on his victims and the limited
possibility of his rehabilitation. 2011 ME 67, ¶¶ 11, 16, 21 A.3d 91. We
concluded that “[t]he record demonstrates that the court did not focus on the
objective nature of Stanislaw’s conduct in the first step of its analysis; nor did the
court refer in any way to sentences imposed for similar offenses,” and noted that
the State had presented four comparable sentences for the court to consider. Id.
¶ 11 & n.8. Reading Stanislaw I in light of our pronouncements in Reese, Basu,
and Stanislaw II, that consideration of comparable sentences is at the discretion of
the sentencing court, we do not find support in Stanislaw I, as Nichols contends,
that the court is required to make factual findings on precedent.
[¶20] Nichols’s arguments reflect a popular, but mistaken, belief that the
statute requires the court to consider comparable sentences as part of the first step
of the statutory sentencing process established in 17-A M.R.S. § 1252-C(1). It
11
does not. While it is permissible for the sentencing court to consider comparable
sentences at the first step if appropriate, neither the statute nor our case law
mandate it.
[¶21] There is an inherent difficulty in collecting, compiling, and comparing
cases involving identical charges but vastly differing facts and surrounding
circumstances. A useful database for such information would need to include an
accurate and complete description of the operative facts and the judge’s
pronouncement of the basic period of incarceration. We have previously
recognized the difficulty in obtaining sentencing data. See, e.g., Stanislaw I,
2011 ME 67, ¶ 8 n.7, 21 A.3d 91 (“[B]ecause of the multiple variables in conduct
and process that may impact a particular sentence, the Judicial Branch does not
have the technological capacity to maintain the sentencing statistics that would
support th[e] endeavor” to eliminate all inequalities in sentencing); State v. Sweet,
2000 ME 14, ¶ 37 n.9, 745 A.2d 368 (Calkins, J., dissenting) (“Except for a case
by case search in each of the Superior Court clerks’ offices, there is no way to find
out what sentences have been imposed.”); Berube, 1997 ME 165, ¶ 5 n.3,
698 A.2d 509 (noting the limitation of the data collected on final sentences in
manslaughter cases, including the lack of information on the seriousness of the
criminal conduct, aggravating and mitigating factors, or whether the sentence was
12
the result of a plea). The Judicial Branch currently has no ability to capture this
type of data in a database, although it may in the future.
[¶22] Despite the fact that no central repository for sentencing data
currently exists, Nichols’s attorneys undertook extraordinary measures in their
attempts to track down cases that might provide comparable sentences, and we
commend them for their efforts. The sentencing court had the benefit of
sentencing memoranda, including comparable sentences, from both Nichols and
the State, and commented on how they were helpful in determining Nichols’s basic
sentence. A “court has wide discretion in determining the sources and types of
information to consider when imposing a sentence.” Reese, 2010 ME 30, ¶ 28,
991 A.2d 806. There was no misapplication of principle in setting Nichols’s basic
sentence.
B. Constitutional Arguments
[¶23] Nichols contends that the absence of information regarding other
defendants’ basic sentences violates all criminal defendants’ equal protection and
due process rights because the unavailability of data prevents defendants from
presenting an adequate sentencing argument. We review his constitutional
arguments for obvious error because he first raised them on appeal. See State v.
Burdick, 2001 ME 143, ¶ 13, 782 A.2d 319; see also State v. Tayman,
2008 ME 177, ¶ 23, 960 A.2d 1151. Obvious error occurs when there is “(1) an
13
error, (2) that is plain, and (3) that affects substantial rights.” State v. Pabon,
2011 ME 100, ¶ 29, 28 A.3d 1147. If these conditions are met, we must “also
conclude that (4) the error seriously affects the fairness and integrity or public
reputation of judicial proceedings” before we vacate a judgment on the basis of the
error. Id.
[¶24] Concerning his claim of equal protection, Nichols has not
demonstrated that other defendants sentenced for murder are “similarly situated.”
See Doe I v. Williams, 2013 ME 24, ¶ 53, 61 A.3d 718 (quotation marks omitted).
Nor has Nichols demonstrated that similarly situated persons have been treated
differently. See id. Given the current technological limitations of the Judicial
Branch, prosecutors, and the Bar, any defendant would have the same difficulty as
Nichols in obtaining information concerning basic sentences.1
[¶25] Because an analysis of comparable precedent is not required by
section 1252-C(1), Nichols has also failed to establish a procedural due process
violation. For these reasons, there is no plain error affecting substantial rights. See
Pabon, 2011 ME 100, ¶ 29, 28 A.3d 1147.
1
To the extent that Nichols argues that the lack of data prevents equality in sentencing, 17-A M.R.S.
§ 1151(5) (2012), we are not persuaded that his sentence must be vacated because preventing sentencing
inequality is not the only objective of sentencing. See State v. Reese, 2010 ME 30, ¶ 18, 991 A.2d 806
(“The court need not address all of these factors in any given sentence and it may address other factors.”);
State v. Hamel, 2013 ME 16, ¶ 8, 60 A.3d 783 (“[T]he selection for appropriate emphasis among these
disparate purposes rests in the discretion of the court.” (quotation marks omitted)).
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C. Continuum of Seriousness
[¶26] Lastly, Nichols contends that the court failed to accurately place his
conduct on a continuum of seriousness against all possible means of committing
murder. In considering the objective facts of the offense, a sentencing court may
compare the crime committed to all the possible means of committing that offense
by measuring the defendant’s conduct on a “scale” or “continuum” of seriousness.
See, e.g., Stanislaw I, 2011 ME 67, ¶ 8, 21 A.3d 91 (quotation marks omitted);
Basu, 2005 ME 74, ¶ 23, 875 A.2d 686; Berube, 1997 ME 165, ¶ 3, 698 A.2d 509.
The continuum of seriousness is obviously not a tangible line, where sentencing
courts can precisely pinpoint where the murder falls. Rather, the continuum of
seriousness is a concept aimed at identifying certain objective facts that raise or
lower the seriousness of the crime. Accordingly, we have held that
the sentencing court is not required to elucidate all the possible means
by which the defendant’s crime may be committed, find which
method of commission is worse than the defendant’s or which method
is the worst possible way of committing the crime, and then assign the
basic sentence according to where the defendant’s conduct falls on
that spectrum.
State v. Schofield, 2006 ME 101, ¶ 11, 904 A.2d 409. This is true whether a
defendant’s actions are “among the most serious ways in which the crime might be
committed,” see, e.g., State v. Holland, 2012 ME 2, ¶ 40, 34 A.3d 1130 (affirming
the imposition of a basic sentence of life imprisonment), or involved less serious
15
ways, see, e.g., State v. Cobb, 2006 ME 43, ¶¶ 11, 26, 895 A.2d 972 (affirming the
imposition of a basic sentence of twenty years).
[¶27] In murder cases, the factors articulated in State v. Shortsleeves,
580 A.2d 145, 149-50 (Me. 1990), such as premeditation, extreme cruelty, and
multiple deaths, provide “guidelines to assist [sentencing courts] in placing
murderous behavior along a continuum.” State v. Wilson, 669 A.2d 766, 768
(Me. 1996). The court may also consider “the force and duration of the crime, and
the defendant’s motive.” Cookson, 2003 ME 136, ¶ 38, 837 A.2d 101 (citation
omitted). The proximity of children to the crime is similarly relevant and may
raise the level of seriousness of a defendant’s conduct. Waterman, 2010 ME 45,
¶ 46, 995 A.2d 243. “The [sentencing] court has broad discretion in what
information it considers” as long as it is “factually reliable.” Wilson, 669 A.2d at
769.
[¶28] Here, the court described appropriate factors concerning Tetreault’s
murder that it considered in determining Nichols’s basic sentence: (1) the murder
was planned and premeditated; (2) it was committed with a firearm; (3) it occurred
near the couple’s son; (4) it was an act of domestic violence; and (5) although
Tetreault did not have any prolonged physical suffering, she was “put in great fear
immediately prior to” her death. Because the murder was premeditated and
16
occurred in close proximity to the couple’s son, the seriousness of the murder was
greater in comparison to other ways it could have been committed.
[¶29] Nichols contends that the court erred in considering at step one the
fact that the murder was a culmination of Nichols’s domestic violence against
Tetreault. He argues that the factor of domestic violence should be considered in
the second step of the statutory sentencing process, like a defendant’s criminal
history. We disagree. The fact that Nichols murdered his wife as an act of
domestic violence is an objective factor properly considered in the first step of the
sentencing analysis. See Reese, 2010 ME 30, ¶ 30, 991 A.2d 806 (considering that
the crime “occurred within the context of a violent relationship” in evaluating the
sentencing court’s determination of the basic sentence); Cookson, 2003 ME 136,
¶¶ 39, 41, 837 A.2d 101 (finding no error in the sentencing court’s determination
of the basic sentence when it considered the fact that the “murder was a crime of
domestic violence”).
[¶30] Nichols finally contends that there was no support in the record for
the court’s finding that Tetreault experienced fear prior to her murder. In fact, the
record provides ample support for that finding based on (1) the account of the
couple’s older son, who described hearing his mother scream before being killed;
and (2) the couple’s history of domestic violence and Nichols’s increasingly
volatile conduct toward Tetreault in the week prior to her murder, which caused
17
her to consider committing him involuntarily and to sleep at work or in her son’s
room.
[¶31] In sum, because the court appropriately considered objective,
factually reliable information in placing Nichols’s conduct along a continuum of
seriousness, there was no misapplication of principle.
III. CONCLUSION
[¶32] We conclude that the sentencing court did not misapply sentencing
principles in imposing Nichols’s basic sentence and that the basic term was not an
abuse of the court’s sentencing power. Indeed, we commend the court for
conducting a sentencing proceeding that was exemplary in conforming to the
analytical steps prescribed by statute, and demonstrating thoughtful consideration
of the information that was presented by the parties.
The entry is:
Sentence affirmed.
_______________________________________
On the briefs:
Adam P. Sherman, Esq., Paradie, Sherman & Worden, P.A., Lewiston, for
appellant Brian Nichols
Janet T. Mills, Attorney General, and Lauren F. LaRochelle, Asst. Atty.
Gen., Office of Attorney General, Augusta, for appellee State of Maine
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At oral argument:
Adam P. Sherman, Esq., for appellant Brian Nichols
Lauren F. LaRochelle, Asst. Atty. Gen., for appellee State of Maine
Androscoggin County Superior Court docket number CR-2010-446
FOR CLERK REFERENCE ONLY