State v. Downs

ALEXANDER, J.,

dissenting.

[¶ 26] I respectfully dissent. The Court’s opinion today confounds longstanding, well-accepted, and often utilized trial court practice for sentencing individuals convicted, at one time, of multiple, serious felonies. In so doing, the Court applies an “ends justifies the means” approach to its sentence review authority to alter a sentence it dislikes, without regard to how the words of its opinion may affect real world application of laws intended to punish serious criminals.

[¶ 27] To justify its novel interpretation of Maine law, the Court first declares: “We have not previously opined on the appropriate sentencing analysis when the defendant is convicted of multiple crimes resulting from what appears to be a crime spree.” That declaration is mistaken.

[¶ 28] In State v. Pfeil, 1998 ME 245, ¶ 12, 720 A.2d 573, 577, the defendant, like Downs, had no prior criminal record. He engaged in a sex crime spree, molesting three young children over an extended period of time. Id. ¶¶ 9-11, 720 A.2d at 577. Ultimately, he was charged with twenty-five counts of gross sexual assault, unlawful sexual contact and assault. Id. ¶ 2, 720 A.2d at 575. He pleaded guilty to three gross sexual assaults, four unlawful sexual contacts, and two assaults. Id. Using consecutive sentencing, the trial court sentenced Pfeil to fifteen years in prison with all but seven years suspended and ten years probation. Id. ¶ 4, 720 A.2d at 576.

[¶ 29] In appealing his sentence, Pfeil argued that, “the court impermissibly considered the fact that there were multiple offenses” in determining the basic period of incarceration for the individual offenses pursuant to the Hewey analysis. Id. ¶¶ 14-15, 720 A.2d at 577. We rejected that claim, holding that “[t]he multiplicity of the offenses is not an impermissible factor” to consider in the first stage of sentencing for individual offenses. Id. Thus, contrary to the Court’s opinion, we have “opined on” and approved such consideration of multiple offenses or crime sprees in sentencing for individual offenses. Today’s opinion overrules Pfeil’s approval of such consideration in the first stage of sentencing for individual offenses.

[¶ 30] We have also approved consideration of multiple offenses in sentencing for individual offenses in several other opin*218ions. In State v. Brown, 1998 ME 129, 712 A.2d 513, we affirmed a fifty-nine-year sentence for a crime spree that involved nineteen separate criminal episodes over a seven-month period. The crimes included burglaries of three homes, eleven businesses, and five churches. Id. ¶ 2, 712 A.2d at 515. Brown was convicted of eighteen counts of burglary, eleven counts of Class B, C, and E theft, and four counts of robbery arising from confrontations with individuals during the burglaries. Id. ¶¶ 1, 4, 712 A.2d at 514-15.

[¶ 31] To achieve its sentence of fifty-nine years, the court imposed consecutive terms of imprisonment in eight of the thirty-three counts in the indictment and concurrent terms on the rest. Id. ¶ 4, 712 A.2d at 515. The sentencing practice approved in Brown was identical to the practice employed in this case: consecutive, high sentencing on a few counts to achieve the overall sentencing objective and then concurrent sentences on the majority of the counts. Id. ¶ 12, 712 A.2d at 517. But the Brown sentence was different. For half the number of criminal episodes, Brown received an underlying sentence double the underlying sentence in this case, and an actual time to be served ten times higher than the time to be served in this case. Thus, we have previously “opined on” and approved the sentencing practice employed in this case. We also have addressed consideration of multiple felonies in sentencing for individual crimes in three other cases discussed later in this opinion. See State v. Sweet, 2000 ME 14, ¶¶ 4-8, 745 A.2d 368, 374 (sentencing for many charged and uncharged felony sex crimes); State v. Cloutier, 646 A.2d 358, 359, 362 (Me.1994) (sentencing for six separate arsons); State v. Frechette, 645 A.2d 1128, 1129-30 (Me.1994) (sentencing for eight separate felony sex crimes).

[¶ 32] Following its mistaken declaration that we have not “opined on” crime spree sentencing, the Court declares “[n]or has the Legislature enacted any statutes relating to the sentencing analysis for crime sprees.” This declaration is also mistaken. It suggests that the Legislature, in enacting the Criminal Code, and in the thirty-two years since, never considered that more than one crime might be before the Court for sentencing at any one time.

[¶ 33] The Legislature has addressed sentencing for multiple crimes, or crime sprees, in 17-A M.R.S. § 1256(2)(A) (2006), stating that a court may consider concurrent or consecutive sentencing where “the convictions are for offenses based on different conduct or arising from different criminal episodes.” Crime spree sentencing is also addressed in 17-A M.R.S. § 1256(2)(D) (2006), where the Legislature has directed the court to consider in sentencing “[t]hat the seriousness of the criminal conduct involved in either a single criminal episode or in multiple criminal episodes or the seriousness of the criminal record of the convicted person, or both, require a sentence of imprisonment in excess of the maximum available for the most serious offense” (emphasis added). These laws, enacted by our Legislature, authorize the sentencing practice approved in Pfeil and Brown and employed by the trial court in this case.

[¶ 34] The Court’s reasoning is also flawed in suggesting, albeit incorrectly, that since the Legislature has not acted, the Court should usurp the legislative function and impose its own guidelines upon sentencing for multiple felonies. The Court may not like the Maine Legislature’s decision to leave to the trial courts a broad range of choice in sentencing, but that is no excuse for limiting the trial courts’ choices and overturning trial court *219sentencing that respects the Legislature’s intent.

[¶ 35] The Court’s approach, ignoring statute and precedent, is highlighted by the assumption that, no matter how many crimes have been committed — here it is seventy-six — sentencing analyses must begin by considering the nature of each crime in a vacuum, one crime at a time. The Court’s opinion holds that the trial court “erred when it took into consideration the number of crimes committed when setting the basic sentences for individual Class B counts,” and that “[t]he basic sentence for an offense is to be determined solely by considering the particular nature and seriousness of that specific offense committed by the offender.” This proposition, that has absolutely no support in Maine law, mandates a dramatic change in practice for crime spree sentencing that has prevailed since the adoption of the Criminal Code. In effect, the Court is legislating a new sentencing regime.

[¶ 36] The Court defies common sense in holding that the court, evaluating the nature and seriousness of one crime, must ignore the defendant’s seventy-five related crimes that are before the court for sentencing.7 The Court also seems unclear as to how the trial court erred. At one point the Court suggests that if the trial court considers planning for multiple offenses, it can consider the multiple offenses at the first stage of the sentencing process. At another point, the Court suggests that the trial court erred only in considering Downs’s multiple felonies at the first stage, rather than the second stage, of the so-called Hewey analysis. If that is the case, if the trial court would have acted correctly had it mentioned planning, or had it mentioned the multiple felonies just a few sentences later in its sentencing analysis, then any error is harmless. M.R.Crim. P. 52(a).

[¶37] Like any other trial court error, perceived errors in sentencing are subject to harmless error review. Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992); State v. Burdick, 2001 ME 143, ¶¶ 11, 34, 782 A.2d 319, 323, 329; United States v. Teague, 469 F.3d 205, 210 (1st Cir.2006). A sentencing error is harmless if “the error did not affect the [trial] court’s selection of the sentence imposed.” Williams, 503 U.S. at 203, 112 S.Ct. 1112; United States v. Roselli, 366 F.3d 58, 65 (1st Cir.2004) (quotation marks omitted). Considering Downs’s multiple felonies one sentencing stage later, or considering his planning for his crime spree, would certainly have led to the same sentences. The fact that the Court does not invoke harmless error analysis indicates that it has more fundamental objections than are articulated in its opinion to the sentencing for these seventy-six crimes.

[¶ 38] Downs received an overall sentence of thirty years, with all but six years suspended, and twelve years probation. That sentence must be evaluated in the context of Downs’s overall criminal activity: sixteen Class B burglaries of residences, twenty-two Class C burglaries, a total of thirty-eight burglaries, and thirty-eight thefts, each separately planned and executed over a period of eighteen months. *220Because each of the burglary/thefts was a separate, serious felony arising from a separate criminal episode, the court could have imposed consecutive sentences for each criminal event pursuant to 17-A M.R.S. § 1256(2)(A).

[¶ 39] Had consecutive sentencing been applied, the maximum sentence for Downs’s burglaries could have been 270 years. Downs’s underlying sentence, thirty years, is only 1/9 of the maximum. His actual time to be served, six years, is only 1/45 of the maximum. His average underlying sentence, approximately nine months for each of his thirty-eight burglary convictions, is lower than the sentence most burglars would likely receive if their sentences were considered one at a time.8

[¶ 40] In practice, of course, trial courts do not and should not employ repetitive, consecutive sentencing when sentencing for a large number of crimes in a single sentencing proceeding. Instead, accepted trial court practice, until today, has (i) considered the crimes as a group; (ii) determined the overall sentence desired to be achieved; (iii) selected a few of the more serious crimes; (iv) imposed maximum or near maximum and consecutive sentences on those few to achieve the overall sentencing objective; and then (v) imposed lower, concurrent sentences for most of the crimes being sentenced. The trial court here followed that accepted sentencing practice. See Pfeil, 1998 ME 245, ¶¶ 9-19, 720 A.2d at 577-78; Brown, 1998 ME 129, ¶¶ 11-12, 712 A.2d at 517; see also Sweet, 2000 ME 14, ¶¶ 19-21, 745 A.2d at 374 (affirming use of consecutive, maximum sentences for selected primary crimes to achieve proper sentence in case involving many charged and uncharged felony sex crimes against children).

[¶ 41] Although the Court announces that in applying accepted sentencing practice the trial court “misapplied principle,” neither our past precedents, nor available sentencing studies, support the one-crime-at-a-time sentencing principle that the Court imposes today. The only comprehensive study we have of Superior Court sentencing practices was published in 2001, reviewing sentencing for crimes charged in fiscal year 1997 and sentenced by August 30, 1999.9 That study reviewed sentencing for 438 Class B burglaries that were committed in fiscal year 1997.10 As in Brown, burglary sentencing often involves sentencing for multiple offenses, particularly other burglaries and thefts. Not surprisingly, the sentencing study indicates that in 224 instances, a Class B burglary was sentenced as a primary offense that received the highest sentence in cases where multiple offenses were sentenced simultaneously.11 Many of these primary, highest sentences necessarily considered other pending charges in setting the primary sentence to achieve the overall sentencing objective. If the numbers reported in the *221study are representative, then trial courts have employed the sentencing practice that is vacated today more than 1000 times since 1999.12 Such a well-accepted, responsibly employed practice cannot be a “misapplication of principle.”

[If 42] In the instances where Hewey analyses have been applied to sentencing for multiple criminal episodes, the Court’s opinions have suggested that the sentencing court can consider the multiple crimes in setting the sentence for a primary crime that will achieve the court’s overall sentencing objectives. See Pfeil, 1998 ME 245, ¶¶ 14-15, 720 A.2d at 577.

[¶ 43] In Cloutier, 646 A.2d at 359-60, the defendant was sentenced after pleas to six arsons involving a vacant apartment budding, an unoccupied residence, three barns, and a telephone pole, each committed in a separate episode and five occurring in one night.13 The Law Court vacated the sentence because it found (i) the restitution ordered, over $126,000, was excessive; (ii) the forty-year sentences, although contemplated by a plea agreement, were barred by the Hewey doctrine which, as applied by the Law Court, prohibited sentences over twenty years for crimes that did not involve injury to persons; and (iii) the total of the underlying sentences, eighty years, was excessive. Id. at 360-62.

[¶ 44] Addressing possible sentences on remand, the Cloutier Court stated that consideration of the multiple arsons could justify the sentencing court “in concluding that the basic period [of] incarceration, at least for some of the arsons committed on [the five arson night], should be at or near twenty years.” 646 A.2d at 361. Notably, in its remand, the Court used the term “should” not “could,” effectively promoting a twenty-year basic sentence considering the multiple offenses. Id. The Court went on to state that “[a]lthough we vacate the sentences, we note that, albeit in a different manner, the court could have imposed penalties against Cloutier equal or nearly equal to the penalties set out in the plea agreement .... ” 646 A.2d at 362.14

[¶ 45] In Frechette, 645 A.2d at 1129-30, the Law Court addressed sentencing for eight separate felony sex crimes, including four gross sexual assaults, committed upon a seven-year-old girl. The trial court sentenced Frechette to consecutive, maximum twenty-year sentences on each of the gross sexual assaults.15 Id. at 1129. The primary sentence was twenty years, with all but eight years suspended, and six years probation. Id. The other three consecutive sentences were each twenty years, all suspended, and six years probation. Id. The other four charges resulted in sentences of five years each, the maximum, to be served concurrently with the eight-year incarceration on the first charge. Id. The resulting overall sentence was eighty years, with eight years incarceration and twenty-four years probation. Id.

[¶ 46] The sentencing pattern in Fre-chette was very similar to the sentencing pattern in the instant case: the incarceration objective for all crimes achieved by sentencing for one primary crime, the probation objective achieved by consecutive sentencing for several other crimes, and *222the remainder of the crimes resolved by incarceration concurrent with the sentence on the primary crime. Addressing a misapplication of principle challenge to Fre-chette’s sentencing, the Law Court held that “the court correctly approached its sentencing in this case, and some consecutive sentences are statutorily authorized.” 645 A.2d at 1129. However, it determined that the four consecutive maximum sentences, totaling eighty years, when “considered in combination” were excessive. Id. The same could be said here if the trial court had imposed consecutive maximum sentences on each of the thirty-eight burglary charges.

[¶ 47] In Frechette, the Law Court was concerned with the combination of consecutive maximum sentences. It expressly approved the primary sentence on the first count, a maximum sentence with eight years to serve, followed by a maximum period of probation. That sentence necessarily considered the multiplicity of crimes committed and provided all of the actual incarceration. The court directed a reduction of only some of the suspended incarceration to reduce Frechette’s eighty-year sentencing exposure. That exposure was 100% of the maximum sentences on the principal crimes committed. Downs’s exposure in this case was only 11% of the maximum sentences on the principal crimes committed.

[¶ 48] Sweet, Pfeil, Brown, Cloutier, and Frechette all approved consideration of multiple crimes in a sentencing for individual primary crimes. The one-crime-at-a-time sentencing regime imposed by the Court today ignores legislative history, trial court practice, and the Court’s own precedent, to utilize its sentence review authority to overturn a sentence it deems too long.16

[¶ 49] To achieve overall sentencing objectives under the new regime mandated by the Court today, trial courts will be required to impose many more separate, lower consecutive sentences on individual counts in indictments to achieve terms of incarceration and probation that are appropriate punishment for committing multiple felonies.17 This one-crime-at-a-time sentencing practice will promote great confusion in sentencing, a veritable blizzard of paperwork and docketing for judges, court clerks, and corrections officials to sort through, and a magnified risk of entry and transmission errors in criminal history records.

[¶ 50] The sentences in this case should be affirmed. They were imposed pursuant to what were, until today, accepted and widely employed sentencing practices for multiple offense cases. They were not illegal or excessive.18

. The absence of logic in the Court’s holding is particularly evident when one contemplates how it might be applied to the sentencing of a serial pedophile convicted of committing many separate sex crimes, victimizing several different children. No judge with an ounce of compassion for the victims or concern for public safety could announce that he or she was beginning the pedophile’s sentencing by considering each crime in isolation, as if the other crimes did not happen. Unfortunately, the Court's ruling, applied to a serial burglar and thief today, will apply equally to sentencing of serial pedophiles.

.A comprehensive study of Superior Court sentences for crimes committed in fiscal year 1997 indicates that the average underlying sentence for a single offense, Class B burglary was 42.15 months, that 90% of such sentences were eight months or more, and that 75% of such sentences were eighteen months or more. The average underlying sentence for the primary Class B burglary when multiple offenses were sentenced simultaneously was thirty-eight months, with 90% of such sentences twelve months or more, and 75% of such sentences eighteen months or more. The Hon. Howard H. Dana Jr. & the Hon. Leigh I. Saufley, Sentencing Statistics for All Crimes Charged in Fiscal Year 1997 in All Superior Courts in the State of Maine 4 (2001). This is the only comprehensive study of Maine Superior Court sentencing statistics.

. See supra n. 8.

. Id. at 4.

. Id.

. This just considers the practice when applied to a primary sentence that is for a Class B burglary in a multiple offense sentencing case.

. The arson of the vacant apartment building occurred on a different date.

. A co-defendant's case was addressed adopting the reasoning from Cloutier. See State v. Lajcie, 651 A.2d 326, 327 (Me.1994).

. Most of the crimes at issue were committed when the maximum sentence for gross sexual assault was twenty years.

. In addition to setting aside current practice and precedent, the Court’s opinion poses an interesting analytical dilemma for sentencing considerations that include both charged and uncharged crimes. The Court holds that the trial court erred “by considering other crimes” in determining its basic sentence. The Court has long held that sentencing courts may consider reliable evidence of other uncharged crimes. State v. Rosa, 575 A.2d 727, 730-31 (Me.1990); State v. Dumont, 507 A.2d 164, 166-67 (Me.1986); State v. O’Donnell, 495 A.2d 798, 803 (Me. 1985). If, as the Court holds today, the sentencing court cannot consider, in setting a primary sentence, other charged crimes also before the court for sentencing, how should a court consider uncharged crimes?

. The imposition of consecutive sentences to achieve a similar overall sentence is not an available option on remand of this case. The Court held in State v. Shackelford, 672 A.2d 1097, 1098-99 (Me.1996), that when a trial court originally imposes concurrent sentences, it cannot upon a remand for resen-tencing, change some of the concurrent sentences to consecutive sentences in order to achieve an appropriate sentence.

. Even if there were error in the trial court's discussion of its sentencing approach, that error, resulting in a sentence 1/9 of the possible maximum sentence and an average sentence consistent with single offense burglary sentencing, was harmless.