State v. Sweet

CALKINS, J.,

with whom DANA, J., joins, concurring in part and dissenting in part.

[¶ 35] I respectfully dissent to that portion of the opinion affirming Poulin’s sentences. I do not fault the manner in which the sentences were imposed. I agree that the heinousness of the commission of the offenses and the prior criminal record were sufficient to warrant sentencing in excess of 20 years.7 I cannot disagree, at least in the abstract, with the discussion of consecutive sentences.

[¶36] I dissent because the totality of Poulin’s sentences is excessive.8 Athough a court follows the established sentencing *378procedures and principles, a sentence which is excessive will be vacated. See State v. Frechette, 645 A.2d 1128, 1129 (Me.1994) (vacating four sentences of 20 years each imposed consecutively). In reviewing the propriety of a sentence, see 15 M.R.S.A. § 2155(1) (Supp.1999), excessiveness is considered. See Daniel E. Wathen, Disparity and the Need for Sentencing Guidelines in Maine: A Proposal for Enhanced Appellate Review, 40 Me. L. Rev. 1, 11 n. 32 (1988) (quoting State v. Carter, No. AD-76-824 (Me.App.Div. Jan. 2, 1979)).

[¶ 37] A measure of excessiveness is the range of sentences for similar offenses. I am not aware of any gross sexual assault cases, in which the sentences were reviewed by us or the former Appellate Division of the Supreme Judicial Court, where the sentences imposed upon a single defendant approximated the 65 years imposed on Poulin. The longest such sentence I have found in the reported cases is 40 years. See State v. Lobozzo, 1998 ME 228, ¶ 6, 719 A.2d 108, 110 (affirming sentences of 40 years on kidnapping and gross sexual assault and lesser sentences on unlawful sexual contact and assault, all to be served concurrently).9

[¶ 38] In my view Poulin’s sentence of 65 years is outside the reasonable bounds of discretion. The total length of his sentences, combined with the court’s refusal to suspend even a few years, is excessive in light of the totality of circumstances, which include, in addition to those mentioned by the sentencing court, Poulin's relatively young age and his age at the release point. I fear that the affirmance of this sentence will substantially raise the bar of sentences generally.

. The sentencing judge, in his discussion of whether to impose a sentence in the 20 to 40-year range, mentioned several times that there were multiple victims. I do not agree that a sentence should be placed in the 20 to 40-year range because there are several victims and, in addition, make that sentence consecutive because the offenses were committed on separate victims. The court, however, had sufficient other grounds on which to place the sentence in the 20 to 40-year range and for the imposition of consecutive sentences.

. In my view, both defendants received de facto life sentences. Even if Poulin is able to earn the maximum amount of good time, he cannot be released from prison for 54.75 years which means that he will be in his mid-eighties before release. If Sweet earns the maximum good time, he cannot be released for approximately 35 years which means that he will be in his early eighties before he will be released. Assuming that the average life expectancy of a white male in the United States is in his mid-seventies, the defendants are not expected to live long enough for release. (In 1996 the average life expectancy, adjusted for age, of a white male in the United States was 73.8 years. Center for Disease Control, Mortality Patterns — Preliminary Data, United States, 1996, Morbidity and Mortality Wkly, Rep. (October 10, 1997).)

We have previously refused to define sentences of 65 years (State v. Wood, 662 A.2d 908, 913 (Me. 1995)) and 75 years (State v. Goodale, 571 A.2d 228, 229 (Me.1990)) as de facto life sentences, but at the time of the sentences in those cases prisoners were able to earn more substantial reductions to their sentences than Poulin will be able to earn. We noted that Wood would be able to reduce his sentence to 38 years. See Wood, 662 A.2d at 913. The Maine Legislature has not sanctioned life sentences for any offense except murder, and we set forth guidelines limiting the situations for which a life sentence should be imposed to those murders with certain aggravating circumstances. See State v. Shortsleeves, 580 A.2d 145, 149-50 (Me.1990). We recognized: "[t]he imposition of a life sentence has such a serious impact on the offender so different from the impact of a sentence for a term of years that a life sentence is never justified unless the murder is accompanied by aggravating circumstances.” Id. at 149 (quoting State v. Anderson and Sabatino, Nos. 78-37, 78-40 (Me.App. Div. June 30, 1980)). I am willing to assume, for the time being, that the authority granted by the Legislature for consecutive sentences permits de facto life sentences, but at the very least such sentences must be scrutinized carefully and limited to the most extreme behavior.

Although Sweet's de facto life sentence comes close to the permissible limit, I do not dissent in his case because I do not consider the 40-year total sentence to be illegal or beyond the bounds of permissible discretion.

. The opinion refers to a 68-year sentence imposed upon Elwood Twist for multiple offenses of rape and gross sexual misconduct. We did not review the sentence in his case, and it is not noted in the appeal of his conviction. See State v. Twist, 528 A.2d 1250 (Me.1987). There is much difficulty in ascertaining generally what sentences have been imposed for similar offenses. 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. Furthermore, there is the added problem of comparing sentences for offenses committed before October 1, 1995 with offenses committed after that date. Compare 17-A M.R.S.A. § 1253(3)-(5) with § 1253(8) (Supp.1999). A sentence of 68 years for a pre-1995 offense would result in a release after 39 years whereas the same sentence for a post-1995 offense would result in a release after 58 years in prison, assuming maximum good time credits for both.