State v. Keene

CALKINS, J.,

dissenting.

[¶ 30] I respectfully dissent. In my view, the trial court was required to impose concurrent sentences on Keene unless a jury found, by proof beyond a reasonable doubt, one of the required elements set forth in 17-A M.R.S.A. § 1256(2) (1983 & Supp.2003).11 Under the sentencing structure of section 1256(2), a court cannot impose consecutive sentences unless the court finds *409facts in addition to those facts that led to the convictions. In this case, the sentencing court relied on two additional facts to justify consecutive sentences: (1) Keene was on probation, and (2) the seriousness of his conduct and his record “require consideration of and a sentence in excess of the maximum available for the most serious offense.” 12

[¶ 31] Because this additional fact-finding is required under section 1256(2) before a defendant can be sentenced to a longer period of incarceration than would be permitted for concurrent sentences, the recent Sixth Amendment jurisprudence of the United States Supreme Court and this Court mandates that those additional facts be proved beyond a reasonable doubt and before a jury, unless waived by the defendant. See Blakely v. Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); State v. Schofield, 2005 ME 82, ¶¶ 20-21, 895 A.2d 927, 933.

[¶ 32] Section 1256(2) implicates Appren-di, Blakely, and Schofield because of its presumption that sentences are concurrent unless additional facts are found. Section 1256(2) means that the statutory maximum sentence, for Apprendi, Blakely, and Scho-field purposes, is the maximum sentence that could be imposed on the individual convictions. Keene was convicted of two offenses that are classified as Class A offenses, and at the time the offenses carried maximum sentences of twenty years, unless a jury made the additional finding that those offenses were “most heinous and violent.” See Schofield, 2005 ME 82, ¶ 9, 895 A.2d at 930. As the Court notes, the State did not plead or prove “most heinous and violent,” and therefore, twenty years was the maximum sentence that could be imposed on each offense. The impact of section 1256(2) is that twenty years is the maximum total for the two offenses because the sentences must be imposed as concurrent sentences unless an additional element in section 1256(2) is proved. Keene was sentenced to a total of thirty-six years, and, therefore, his sentence exceeds by sixteen years the maximum sentence that section 1256(2) allows without additional fact-finding.

[¶ 33] Because it is the presumption of concurrent sentences in section 1256(2) that implicates the Apprendi line of cases, many of the cases cited by the Court are not on point. Most of the jurisdictions cited do not have a sentencing scheme providing that sentences are concurrent and allowing consecutive sentences only when certain additional facts are found. The federal Sentencing Guidelines do not create a presumption of concurrent sentences. See United States v. Chorin, 322 F.3d 274, 278 (3d Cir.2003), cert. denied, 540 U.S. 857, 124 S.Ct. 158, 157 L.Ed.2d 104 (2003) (“[T]he Supreme Court has recognized that there is a presumption that, when Congress creates two distinct offenses, it intends to permit cumulative sentences.”); U.S. SENTENCING GUIDELINES MANUAL § 5G1.2(d) (2006).

[¶ 34] Similarly, many of the state cases upholding consecutive sentences that were challenged as violating Apprendi involve sentencing statutes that do not mandate that the sentences be concurrent unless certain facts are found. See, e.g., State v. Jacobs, 644 N.W.2d 695, 699 (Iowa 2001); State v. Bramlett, 273 Kan. 67, 41 P.3d 796, 797-98 (2002). Some courts, however, conclude that Apprendi is not violated *410even when the sentencing statute presumes concurrent sentences. See, e.g., State v. Wagener, 196 Ill.2d 269, 256 Ill. Dec. 550, 752 N.E.2d 430, 438, 441-42 (2001), cert. denied, 534 U.S. 1011, 122 S.Ct. 498, 151 L.Ed.2d 408 (2001); State v. Tanner, 210 Or.App. 70, 150 P.3d 31, 32-33, 39-40 (2006).

[¶ 35] At least two jurisdictions have held that consecutive sentences violate the Sixth Amendment because additional facts have to be found before the sentences can be imposed to run consecutively. The Ohio statute at issue in State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 490-91 (2006), cert. denied, — U.S. —, 127 S.Ct. 442, 166 L.Ed.2d 314 (2006), is similar to our statute in that a court must make factual determinations before imposing consecutive sentences. Likewise, the Washington statute for nonserious violent felonies requires that the sentences be concurrent unless the court finds additional facts, and the Washington Supreme Court thus held that Blakely applies to consecutive sentences. In re VanDelft, 158 Wash.2d 731, 147 P.3d 573, 578-79 (2006), cert. denied, — U.S. —, 127 S.Ct. 2876, 167 L.Ed.2d 1172 (2007). In my view, the Ohio and Washington courts ruled correctly. I would join this minority view.

[¶ 36] When, as here, a court is considering the imposition of consecutive sentences based in whole or in part on the factor of section 1256(2)(D) regarding whether the seriousness of the offense or the criminal record warrants a sentence in excess of the maximum, the defendant must be given the opportunity to have that fact decided by a jury. Furthermore, the fact must be proved beyond a reasonable doubt. Therefore, I would vacate the sentences and remand for resentencing.

. The statute is set forth in the Court’s opinion.

. Probationary status is a factor in 17-A M.R.S.A. § 1256(2)(B) (Supp.2003), and the "seriousness of the criminal conduct ... or the seriousness of the criminal record” requiring "a sentence of imprisonment in excess of the maximum available for the most serious offense,” is the factor stated in 17-A M.R.S.A. § 1256(2)(D) (1983).