State v. Downs

SAUFLEY, C. J., with whom CLIFFORD and ALEXANDER, JJ., join, dissenting.

[¶ 15] I must respectfully dissent.

[¶ 16] In my opinion, the Court errs in its legal analysis by (1) assuming that the court in State v. Hewey, 622 A.2d 1151, 1154-55 (Me.1993), and the Legislature in its later codification of Hewey, both intended to apply Hewey’s individual crime, tripartite analysis to the sentencing of multiple offenses committed in a crime spree; and (2) ignoring our prior case law, in which we have specifically approved the aggregated sentencing approach employed by the sentencing judge in this case. In so doing, the Court invalidates a practice that has been an effective and reasonable part of sentencing in Maine for years. Accordingly, I cannot join the Court’s opinion.

[¶ 17] I would hold that, when facing the prospect of sentencing a single individual for a substantial series of crimes, a judge has two options. First, the judge may, as the majority today urges, apply to each individual offense the specific three-step process announced in Hewey, 622 A.2d at 1154-55, and codified at 17-A M.R.S. § 1252-C (2006). Second, the judge may use the aggregated sentencing approach applied by the sentencing judge in this case. Accordingly, I do not disagree with the Court that the Hewey analysis could be applied to each crime separately,6 but I part with the Court in its disapproval of the second option because it is not required by law, and because we have already approved and acknowledged the use of the aggregated approach in case law that is equally applicable to this case.

[¶ 18] Beginning with the application of the statute, the codification of the Hewey analysis found at 17-A M.R.S. § 1252-C simply does not contemplate the circumstances in which the sentencing judge found herself in this case. Section 1252-C requires a three-part analysis for each “offense.” Downs was charged with seventy-six separate offenses. The very prospect of having a sentencing judge undertake the required articulation of the three-part analysis for each of the seventy-six counts would complicate and obfuscate the sentencing process. The Court today attempts to solve that problem by admitting the possibility that the sentencing judge may, in essence, bypass section 1252-C for many of the offenses once it has undertaken that three-part analysis for a few representative offenses. In my view, this approach is a tacit recognition that the Hewey section 1252-C analysis simply does not work for crime spree sentencing. Thus, I would conclude that the application of section 1252-C to the offenses at bar is not mandated by law.

[¶ 19] The same conclusion is reached through a review of our prior decisions. We have said that, when setting the basic sentence, a sentencing judge may consider that the defendant committed multiple offenses: “The multiplicity of the offenses is not an impermissible factor.” State v. Pfeil, 1998 ME 245, ¶15, 720 A.2d 573, 577. We have also regularly acknowledged the overall efficacy of an aggregated approach. See State v. Brown, 1998 ME 129, ¶¶ 4, 11-12, 712 A.2d 513, 515, 517 (affirming fifty-nine-year sentence that in-*216eluded consecutive terms for eight of the thirty-three convicted offenses); State v. Cloutier, 646 A.2d 358, 362 (Me.1994) (stating that a sentencing judge may consider the seriousness of conduct involved in multiple criminal episodes when determining whether to impose a sentence exceeding the maximum sentence available for the most serious offense); cf. State v. Frechette, 645 A.2d 1128, 1129-30 (Me.1994) (holding that the sentencing judge properly applied sentencing principles for each sentence but failed to observe that the total sentence was excessive).

[¶ 20] By approving an aggregated approach for sentencing an offender who has gone on a crime spree, or committed multiple crimes, we have afforded judges options that enable them to reach sentences that serve the statutory purposes of sentencing. See 17-A M.R.S. § 1151 (2006). According to the statutorily defined purposes of sentencing, a sentence should adequately provide for the rehabilitation of the offender, while also deterring crime and restraining the offender to the extent necessary. Id. § 1151(1). It should take into account the gravity of the offense, see id. § 1151(8), but should not be overly harsh on the sole basis that multiple offenses resulted from a defendant’s course of conduct, see id. § 1151(3), (6). A sentence should “minimize correctional experiences which serve to promote further criminality,” and “encourage restitution in ... cases in which the victim can be compensated.” Id. § 1151(2), (3). In reaching a sentence, a judge must differentiate among offenders and justly individualize sentences. Id. § 1151(6).

[¶ 21] If a defendant must be sentenced individually on each crime committed in a crime spree, the resulting sentence may in some circumstances run afoul of the statutory purposes of sentencing. See id. § 1151. A very long sentence resulting from the sheer number of offenses could increase an offender’s period of incarceration and maximize, rather than minimize, correctional experiences that may promote further criminality. See id. § 1151(3). Such a sentence might also decrease the likelihood that an offender will be able to rehabilitate and pay restitution. See id. § 1151(1), (2).

[¶ 22] By contrast, a sentence might minimize the gravity of an offender’s conduct if each of the offenses, taken alone, warrants only a mild sentence. See id. § 1151(8). A sentencing judge should be permitted to consider the broader course of criminal conduct in determining a sentence that provides for adequate restraint of the offender and deters future criminal conduct. See id. § 1151(1).

[¶ 23] As other state courts have acknowledged, a judge may reach an appropriate final sentence by taking into consideration the broader course of the defendant’s criminal conduct when determining the sentence for each of the multiple convictions resulting from a crime spree. For instance, the Connecticut Supreme Court acknowledged that a judge sentencing on multiple offenses often crafts the sentences based on an overall plan, imposing individual sentences “merely as component parts or building blocks of a larger total punishment for the aggregate convictions.” State v. Miranda, 260 Conn. 93, 794 A.2d 506, 528, cert. denied, 537 U.S. 902, 123 S.Ct. 224, 154 L.Ed.2d 175 (2002). The Court of Appeal of California noted that, “[a]t some point a judge should evaluate the sentence in the aggregate.... Surely, a judge should not hand down a term believed to be excessive in the aggregate simply because a mechanistic micro-examination of the counts without regard to each other will yield such a term.” Peo-*217pie v. Calderon, 20 Cal.App.4th 82, 26 Cal.Rptr.2d 31, 34 (1993).

[¶ 24] Consistent with this reasoning, a judge sentencing an offender for multiple convictions resulting from a crime spree should have the discretion either to apply the strict three-part Hewey analysis to each individual offense, or to use the aggregated sentencing approach that we have previously approved. A sentencing judge who has both options is better able to enter a sentence that prevents crime through deterrence, rehabilitation, and restraint of offenders; encourages the payment of restitution; minimizes correctional experiences that promote further criminality; communicates to the broader community the type of sentence that may be imposed upon conviction of an offense; eliminates inequalities in sentences that are unrelated to legitimate criminological goals; encourages differentiation to promote just, individualized sentences; and acknowledges the gravity of the offense. Id. § 1151(1X6), (8).

[¶ 25] Because I believe that judges must have the option of aggregated sentencing when determining what sentence will best serve the statutory purposes of sentencing, and because we have approved an aggregated sentencing approach in the past, I would affirm the sentence imposed in the matter before us.

. Although I would be concerned that a rigid application of the Hewey analysis to seventy-six separate crimes, as in this case, might inappropriately consume the court’s time and resources or lead to disrespect for the sentencing process, these concerns are not for this day.