State of Maine v. Theodore S. Stanislaw , 2013 Me. LEXIS 43 ( 2013 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 43
Docket: SRP-11-378
Argued: June 13, 2012
Decided: May 7, 2013
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and
JABAR, JJ.
Majority: ALEXANDER, LEVY, SILVER, and JABAR, JJ.
Concurrence/
Dissent: SAUFLEY, C.J., and MEAD and GORMAN, JJ.
STATE OF MAINE
v.
THEODORE S. STANISLAW
SILVER, J.
[¶1] Theodore S. Stanislaw appeals for a second time challenging the
sentence imposed by the trial court (Hancock County, Cuddy, J.) following his
guilty plea to three counts of unlawful sexual contact (Class B), 17-A M.R.S.
§ 255-A(1)(E-1) (2012), and one count of unlawful sexual contact (Class C),
17-A M.R.S. § 255-A(1)(E) (2012).1 He contends that the court erred in applying
the three steps of the sentencing analysis required pursuant to 17-A M.R.S.
§ 1252-C (2012), that the court abused its discretion in imposing consecutive
sentences on each of the counts, and that his overall sentence of twenty-seven
1
Stanislaw also pleaded guilty to four counts of assault (Class D), 17-A M.R.S. § 207(1)(A) (2012),
and one count of unlawful sexual touching (Class D), 17-A M.R.S. § 260(1)(C) (2012). He has not
appealed the sentences associated with the Class D convictions.
2
years in prison is excessive. We vacate the sentence because it is disproportionate
to other sentences for similar crimes.
I. BACKGROUND
[¶2] Stanislaw, now age 54, pleaded guilty in an open plea to sexual crimes
involving five girls. The events took place between 2004 and 2008, and the
victims were between ten and fourteen years old. His actions toward these girls
involved a range of contact, but none of his actions constituted a ‘sexual act’ as
that term is defined in 17-A M.R.S. § 251(1)(C) (2012).2 His criminal conduct
involved exposing himself, touching and kissing his victims, and walking in on his
victims and hugging them while they were unclothed or only partially clothed.
Some of the touching was skin to skin, some involved touching through clothing.
The record includes no evidence that any touching involved penetration.
2
Title 17-A M.R.S. § 251(C) (2012) defines a “sexual act” as follows:
(1) Any act between 2 persons involving direct physical contact between the genitals
of one and the mouth or anus of the other, or direct physical contact between the genitals
of one and the genitals of the other;
(2) Any act between a person and an animal being used by another person which act
involves direct physical contact between the genitals of one and the mouth or anus of the
other, or direct physical contact between the genitals of one and the genitals of the other;
or
(3) Any act involving direct physical contact between the genitals or anus of one and
an instrument or device manipulated by another person when that act is done for the
purpose of arousing or gratifying sexual desire or for the purpose of causing bodily injury
or offensive physical contact.
A sexual act may be proved without allegation or proof of penetration.
3
[¶3] Based on his contact with the first victim, he pleaded guilty to three
counts of unlawful sexual contact (Class B), 17-A M.R.S. § 255-A(1)(E-1). These
acts occurred during the summers of 2004, 2005, and 2006, starting when the
victim was ten years old. The victim’s family was friendly with the Stanislaw
family and the girl helped care for Stanislaw’s young son. On one occasion
Stanislaw exposed himself to her and placed her hand on his penis. On another
occasion, after she fell asleep at his house, he carried her to a bed and pressed his
body, including his penis, up against her while they were clothed. Stanislaw also
allowed her to drive his motor vehicle in his driveway while she sat on his lap.
While the girl was sitting on his lap, Stanislaw reached under her clothing and
touched her breasts and genitals. This girl had been one of his piano students, but
she had previously quit lessons because he had touched her leg and had sat
uncomfortably close to her.
[¶4] For his actions with the second victim, Stanislaw pleaded guilty to one
count of unlawful sexual contact (Class C), 17-A M.R.S. § 255-A(1)(E) and one
count of assault (Class D), 17-A M.R.S. § 207(1)(A) (2012). The second girl, who
was also his music student, was victimized beginning in 2007 when she was
thirteen. Stanislaw touched her genitals three or four times through her clothes and
at least once “French kissed” her during music lessons. Additionally, once when
4
she complained of being cold after swimming, he removed her clothes and held her
against him while he was naked.
[¶5] Stanislaw pleaded guilty to three counts of assault (Class D),
17-A M.R.S. § 207(1)(A), based on contacts with his third and fourth victims. He
assaulted both of these girls, aged thirteen and fourteen, during 2008. He kissed
the third victim on the lips in an “adult manner” on at least five occasions. On one
occasion, he entered a bathroom where she was dressing and hugged her while she
was half-naked and he was completely naked. Stanislaw kissed the fourth victim
on the mouth on one occasion and during music lessons regularly put his hand on
her clothed thigh in a way that made her feel uncomfortable.
[¶6] Finally, Stanislaw pleaded guilty to one count of unlawful sexual
touching (Class D), 17-A M.R.S. § 260(1)(C) (2012), for his conduct with his fifth
victim. This victim, who was twelve years old at the time of the offense, went to
Stanislaw’s residence to babysit his young son. While she was there Stanislaw
“touched her in a sexual manner” through her clothing.
[¶7] Stanislaw has one previous felony conviction. In 1982, when
Stanislaw was twenty-four, he pleaded guilty in New York to Sexual Abuse
1st Degree for subjecting “a person less than eleven years old, to sexual contact, by
fondling her vagina.” See N.Y. Penal Law § 130.65(3) (Consol. 2000 &
Supp. 2012). He was sentenced to five years’ probation.
5
[¶8] For his offenses in Maine, Stanislaw was initially sentenced “to serve a
total of twenty-eight years in prison, followed by four years of probation, during
which he was at risk of serving an additional two years.” State v. Stanislaw,
2011 ME 67, ¶ 4, 21 A.3d 91 (Stanislaw I). This overall sentence included three
consecutive sentences of nine years of imprisonment on each of the Class B
offenses. Id. On the Class C offense, Stanislaw was sentenced to three years of
imprisonment, with all but one year suspended, to be served consecutively to the
terms on the Class B offenses, followed by four years of probation. Id.
The sentences on the Class D offenses were not at issue in the prior appeal,
see id. ¶ 5, and are not at issue here. The court arrived at the sentences on each of
the Class B offenses by first setting a basic term of imprisonment, pursuant to
17-A M.R.S. § 1252-C(1), of nine years out of the ten-year maximum authorized
by 17-A M.R.S. § 1252(2)(B) (2012). Stanislaw I, 2011 ME 67, ¶ 10, 21 A.3d 91.
[¶9] On appeal, we concluded that we were unable to review how the court
determined the basic sentence on the Class B offenses because the court appeared
to have combined its analysis of the objective facts of the crime itself with its
analysis of aggravating factors. Id. ¶¶ 10, 13. We did not consider whether the
court abused its discretion as to the maximum sentence, pursuant to 17-A M.R.S.
§ 1252-C(2), or the final sentence, pursuant to 17-A M.R.S. § 1252-C(3), nor did
6
we consider whether the sentence was excessive. Stanislaw I, 2011 ME 67, ¶ 5
n.5, 21 A.3d 91.
[¶10] On remand, the court held a hearing to resentence Stanislaw. At step
one of the sentencing analysis, the court set the basic sentence at six years on each
of the three Class B convictions and two to three years on the Class C conviction,
pursuant to 17-A M.R.S. § 1252-C(1). The court found that the crimes as
committed by Stanislaw were serious because they involved both unacceptable
physical contact and a high likelihood of causing lasting emotional scars, but also
found that the crimes were not committed in the most serious manner possible and
therefore did not warrant the maximum basic sentence.
[¶11] At step two of the analysis, which involves setting the maximum
period of imprisonment considering all relevant aggravating and mitigating factors
pursuant to section 1252-C(2), the court increased the three sentences on the
Class B offenses to eight years, and increased the sentence on the Class C offense
to four years. The only mitigating factors the court found were that Stanislaw
pleaded guilty, thereby sparing the victims from having to testify at trial, and that
Stanislaw apologized to the victims and their families at the initial sentencing. The
court was not persuaded by the testimony of Stanislaw’s psychotherapist on the
issue of rehabilitation. Aggravating factors listed by the court included Stanislaw’s
1982 conviction for a similar crime, the effect of the crimes on the victims, and the
7
need for protection of the public interest, as provided in section 1252-C(2). The
court noted that, given his prior conviction and his use of the trust of parents, the
community, and his multiple victims as a tool to facilitate the crimes, Stanislaw is
still at high risk of re-offending.
[¶12] At step three of the sentencing analysis, which involves determining
what portion of the sentence to suspend and the appropriate period of probation
pursuant to section 1252-C(3), the court did not suspend any portion of the three
eight-year Class B sentences. The court did suspend one year of the four-year
sentence it imposed for the Class C offense, and imposed a period of probation of
four years. The court noted that the reason for suspending part of the sentence was
to provide for a period of supervision for the sake of public safety.
[¶13] The court then turned to consider whether to impose consecutive
sentences pursuant to 17-A M.R.S. § 1256(2) (2012). The court concluded that a
sentence for each Class B and Class C offense that was consecutive to the
sentences for all other Class B and C offenses was justified because (1) the Class B
offenses involved the same victim but different episodes; (2) the Class C
conviction involved a different victim and different conduct from the Class B
offenses; (3) the conduct was serious and committed in multiple episodes; and
(4) Stanislaw was convicted of a sex crime in 1982. On these grounds, the court
found that a combined sentence of imprisonment in excess of the maximum
8
available for the most serious offense was needed to protect public safety. The
court did not repeat the third step of the required sentencing analysis—determining
whether a suspension of a portion of the sentence of imprisonment is required,
17-A M.R.S. § 1252-C(3)—after concluding that consecutive sentences should be
imposed.
[¶14] In all, the court sentenced Stanislaw to twenty-eight years in prison,
with all but twenty-seven years suspended, followed by four years of probation.
We once again granted leave to Stanislaw to appeal his sentence, pursuant to
15 M.R.S. § 2152 (2012) and M.R. App. P. 20.
II. DISCUSSION
[¶15] We review the propriety of a sentence pursuant to 15 M.R.S. §§ 2154,
2155 (2012) and the proportionality or excessiveness of a sentence pursuant to the
Maine Constitution, article I, section 9 and 17-A M.R.S. § 1151(5) (2012). When
determining a sentence, the sentencing court conducts a Hewey analysis, which is a
three-step sentencing analysis codified at 17-A M.R.S. § 1252-C. See State v.
Hewey, 622 A.2d 1151, 1154-55 (Me. 1993). First, the court “determine[s] a basic
term of imprisonment by considering the particular nature and seriousness of the
offense as committed by the offender.” 17-A M.R.S. § 1252-C(1). Second, the
court “determine[s] the maximum period of imprisonment to be imposed by
considering all other relevant sentencing factors . . . .” 17-A M.R.S. § 1252-C(2).
9
Third, the court “determine[s] what portion, if any, of the maximum period of
imprisonment should be suspended and, if a suspension order is to be entered,
determine[s] the appropriate period of probation to accompany that suspension.”
17-A M.R.S. § 1252-C(3).
[¶16] In cases involving multiple offenses, the sentencing court must
determine whether to impose consecutive or concurrent sentences, pursuant to
17-A M.R.S. § 1256(2). Section 1256(2) provides that sentences ordinarily run
concurrently, but the statute grants the sentencing court discretion to impose
consecutive sentences upon consideration of several factors:
[S]entences shall be concurrent unless, in considering the following
factors, the court decides to impose sentences consecutively:
A. That the convictions are for offenses based on different conduct or
arising from different criminal episodes;
...
D. That 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.
If the court decides to impose consecutive sentences for various convictions, it
must perform a separate Hewey analysis for each conviction. State v. Downs,
2009 ME 3, ¶ 14, 962 A.2d 950. In order to ensure that its final sentence
accurately reflects the court’s determination of an appropriate sentence for multiple
10
offenses, a sentencing court should make its decision about concurrent or
consecutive imposition before it undertakes the third step of the Hewey analysis.
[¶17] When reviewing the sentencing court’s application of the Hewey
analysis we review the basic sentence de novo for misapplication of principle and
we review the maximum sentence and the final sentence for an abuse of discretion.
Id. ¶¶ 22, 23. However, we review all three statutory steps for whether the
sentencing court disregarded the relevant sentencing factors or abused its
sentencing power. Id. Additionally, we review the imposition of consecutive
sentences for an abuse of discretion. Downs, 2009 ME 3, ¶ 29, 962 A.2d 950.
A. Statutory Review of a Criminal Sentence
[¶18] Our review of sentences is guided by statutorily mandated objectives,
15 M.R.S. § 2154, and factors, 15 M.R.S. § 2155. See State v. Reese, 2010 ME 30,
¶ 21, 991 A.2d 806. Section 2154 provides the following objectives for our
sentence review:
1. Sentence correction. To provide for the correction of sentences
imposed without due regard for the sentencing factors set forth in this
chapter;
2. Promote respect for law. To promote respect for law by
correcting abuses of the sentencing power and by increasing the
fairness of the sentencing process;
3. Rehabilitation. To facilitate the possible rehabilitation of an
offender by reducing manifest and unwarranted inequalities among
the sentences of comparable offenders; and
11
4. Sentencing criteria. To promote the development and application
of criteria for sentencing which are both rational and just.
Section 2155 lists two factors that we must consider when reviewing a sentence:
1. Propriety of sentence. The propriety of the sentence, having
regard to the nature of the offense, the character of the offender, the
protection of the public interest, the effect of the offense on the victim
and any other relevant sentencing factors recognized under law.
2. Manner in which sentence was imposed. The manner in which
the sentence was imposed, including the sufficiency and accuracy of
the information on which it was based.
[¶19] The second factor, “[t]he manner in which a sentence is imposed,” is
reflected in virtually all of our sentencing jurisprudence. See, e.g., State v.
Schofield, 2005 ME 82, ¶¶ 13-27, 895 A.2d 927 (considering how the facts used in
sentencing were obtained); State v. Whitten, 667 A.2d 849, 852 (Me. 1995)
(determining that a potentially unreliable letter could not be used in sentencing).
“We look to whether the sentencing court disregarded the statutory sentencing
factors, abused its sentencing power, permitted a manifest and unwarranted
inequality among sentences of comparable offenders, or acted irrationally or
unjustly.” Reese, 2010 ME 30, ¶ 21, 991 A.2d 806 (emphasis added).
12
B. Application of the Three-Step Analysis to Multiple Sentences
[¶20] Stanislaw argues that the sentencing court violated the propriety of his
sentence by misapplying principle when it imposed a six-year basic term of
imprisonment on each of the Class B offenses. Additionally, he argues that the
court contravened our holding in Stanislaw I, 2011 ME 67, ¶ 8 n.6, 21 A.3d 91, by
failing to conduct a separate sentencing analysis for each conviction before
imposing the consecutive sentences.
[¶21] For the first step of the Hewey analysis, the statute provides: “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.”
17-A M.R.S. § 1252-C(1). The court examines the crime, the defendant’s conduct
in committing it, and, at its discretion, other sentences for similar offenses.
Stanislaw I, 2011 ME 67, ¶ 8, 21 A.3d 91; Reese, 2010 ME 30, ¶ 28, 991
A.2d 806. We noted in Stanislaw I that it is rare for a basic sentence to be set at or
near the statutory maximum. 2011 ME 67, ¶ 13, 21 A.3d 91.
[¶22] Six years is significantly less than the ten-year maximum period
available for Class B crimes, pursuant to 17-A M.R.S. § 1252(2)(B). This basic
term appropriately reflects that some of the factors that could have supported a
higher sentence were not present here. Stanislaw I, 2011 ME 67, ¶ 12, 21 A.3d 91.
However, the six-year term does reflect that the crimes committed were serious.
13
In arriving at this term, the court appropriately considered the age of the victims,
pursuant to 17-A M.R.S. § 1151(8)(A) (2012).3 See Reese, 2010 ME 30, ¶ 18,
991 A.2d 806. The court did not abuse its discretion or sentencing power, nor did
it misapply principle in setting a basic term of six years on each of the Class B
offenses. See 15 M.R.S. §§ 2154(2), 2155(1); Stanislaw I, 2011 ME 67, ¶ 6,
21 A.3d 91; Reese, 2010 ME 30, ¶¶ 21-23, 991 A.2d 806.
[¶23] After considering the first two steps4 of the Hewey analysis, the court
considered the factors provided 17-A M.R.S. § 1256(2) and imposed Stanislaw’s
sentences consecutively. The court found, pursuant to section 1256(2)(A), that
Stanislaw’s conduct on each of the Class B convictions involved the same victim
but different episodes and that his conduct on the Class C conviction involved a
different victim and different conduct. The court also found that the requirements
of section 1256(2)(D) had been met. Those findings are sufficient to indicate that
the court conducted a separate analysis of each of the sentences that it imposed
consecutively. The court’s process was deliberate and thorough.
3
Although the sentencing court did not go into detail regarding the specifics of each conviction, its
consideration of ages and general conduct is sufficient to satisfy the requirement for individual analysis.
4
Stanislaw has not challenged the court’s handling of the second step of the sentencing analysis.
14
C. Whether the Overall Sentence Is Excessive
[¶24] When consecutive sentences are imposed, the sentencing court must
make a determination that the unsuspended portion of any consecutive sentence is
not excessive and is proportionate to the offense. Me. Const. art I, § 9.
[¶25] In accordance with the statutorily mandated purposes of our sentence
review, we consider the length of a sentence to determine whether it is excessive.
State v. Lilley, 624 A.2d 935, 937 (Me. 1993). One of the purposes of sentence
review is “[t]o facilitate the possible rehabilitation of an offender by reducing
manifest and unwarranted inequalities among the sentences of comparable
offenders.” 15 M.R.S. § 2154(3). Although excessiveness and inequality in
sentencing are distinct concepts, they are closely aligned and arise from the
requirement in the Maine Constitution that “all penalties and punishments shall be
proportioned to the offense.” Me. Const. art I, § 9; State v. Ward, 2011 ME 74,
¶ 16, 21 A.3d 1033. The proportionality requirement of article I, section 9, is
reflected in the Maine Criminal Code among the purposes of sentencing stated in
17-A M.R.S. § 1151(5) (“To eliminate inequalities in sentences that are unrelated
to legitimate criminological goals.”).
[¶26] Courts rarely find sentences disproportionate pursuant to the Eighth
Amendment of the United States Constitution, except in cases involving the death
penalty or juvenile defendants. See Miller v. Alabama, 132 S. Ct. 2455, 2463-64
15
(2012) (providing a history of Eighth Amendment cases regarding excessive
sentences and concluding “that mandatory life-without-parole sentences for
juveniles violate the Eighth Amendment”). However, the United States Supreme
Court has recognized that the Maine Constitution anticipates a broader
proportionality review than the Eighth Amendment. After stating that “the Eighth
Amendment contains no proportionality guarantee” in Harmelin v. Michigan,
501 U.S. 957, 965 (1991), the Court further noted that “[d]uring the 19th century
several States ratified constitutions that prohibited ‘cruel and unusual,’ ‘cruel or
unusual,’ or simply ‘cruel’ punishments and required all punishments to be
proportioned to the offense,” and referenced six state constitutional provisions,
including the proportionality clause in the Maine Constitution, id. at 982
(referencing Me. Const., art. I. § 9 (1819)); see also Ward, 2011 ME 74, ¶ 17,
21 A.3d 1033 (noting the proportionality language in the Maine Constitution).
Presently, eight states have proportionality requirements in their constitutions and
another two have interpreted their constitutions to require proportionality in
sentencing. See Gregory S. Schneider, Note, Sentencing Proportionality in the
States, 54 Ariz. L. Rev. 241, 242 (2012).5
5
Schneider notes, “that Indiana, Maine, Nebraska, New Hampshire, Oregon, Rhode Island, Vermont,
and West Virginia have explicit provisions, and that Illinois and Washington have interpreted their
constitutions to require proportionality.” Gregory S. Schneider, Note, Sentencing Proportionality in the
States, 54 Ariz. L. Rev. 241, 242 n.2 (2012) (citing Richard S. Frase, Limiting Excessive Prison Sentences
Under Federal and State Constitutions, 11 U. Pa. J. Const. L. 39, 64 (2008)).
16
[¶27] The use of a proportionality analysis pursuant to a state constitution is
largely supported by academic literature.6 The literature has found that a broad
cross-section of states has utilized state constitutional law to invalidate excessive
sentences. See, e.g., Richard S. Frase, Limiting Excessive Prison Sentences Under
Federal and State Constitutions, 11 U. Pa. J. Const. L. 39, 67 (2008).
Accordingly, states that have embraced proportionality review pursuant to their
state constitution may vacate a defendant’s sentence if it is a harsher penalty than
the sentences other defendants received when convicted of the same crime.
Schneider, at 264. Additionally, the literature supports proportionality analysis
because it permits meaningful appellate review of sentences that are claimed to be
excessive. Schneider, at 275; see also Thomas A. Balmer, Some Thoughts on
Proportionality, 87 Or. L. Rev. 783, 787-89 (2008) (providing historical support,
going back to Blackstone, for the use of proportionality).
[¶28] The Maine Constitution requires that “all penalties and punishments
shall be proportioned to the offense.” Me. Const. art I, § 9. Like other states
containing similar language in their state constitutions, we conduct a
6
See Joy M. Donham, Third Strike or Merely a Foul Tip?: The Gross Disproportionality of Lockyer
v. Andrade, 38 Akron L. Rev. 369, 397 (2005) (noting a need for proportionality to keep a check on state
legislatures’ power); Frase, at 57-58 (expressing disappointment with the Supreme Court’s handling of
proportionality); Schneider, at 275. But see Kenneth A. Sprenger, Pass the Discretion Please, 58 Ark. L.
Rev. 425, 426-27 (2005) (supporting the Arkansas Supreme Court’s view of extremely limited appellate
involvement with sentencing).
17
proportionality review that is broader than the proportionality review that derives
from the Eighth Amendment’s prohibition against cruel and unusual punishment.
See Harmelin, 501 U.S. at 965 (acknowledging that unlike the U.S. Constitution,
some state constitutions, including Maine’s, contain express prohibitions against
disproportionate sentences); Ward, 2011 ME 74, ¶ 17, 21 A.3d 1033 (noting the
express language in the Maine Constitution); People v. Sharpe, 839 N.E.2d 492,
521 (Ill. 2005) (conducting proportionality review pursuant to the Illinois
Constitution); State v. Rodriguez, 217 P.3d 659, 671 (Ore. 2009) (the Oregon
Constitution); State v. Fain, 617 P.2d 720, 727-28 (Wash. 1980) (the Washington
Constitution); Wanstreet v. Bordenkircher, 276 S.E.2d 205, 210 (W. Va. 1981) (the
West Virginia Constitution).
[¶29] To determine whether a sentence is disproportionate we conduct a
two-part test. First, we compare “the gravity of the offense [with] the severity of
the sentence.” Ward, 2011 ME 74, ¶ 20 n.5, 21 A.3d 1033 (quoting Graham v.
Florida, 130 S. Ct. 2011, 2022 (2010)). Second, if this comparison results in “an
inference of gross disproportionality [we] then compare the defendant’s sentence
with the sentences received by other offenders in the same jurisdiction.” Id.
(quoting Graham, 130 S. Ct. at 2022).
18
1. Comparing the Offense and the Sentence
[¶30] Factors affecting the proportionality of a sentence to the offense are
determined on a case-by-case basis because “no one factor will be dispositive in a
given case,” Harmelin, 501 U.S. at 965 (quoting, but criticizing on other grounds,
Solem v. Helm, 463 U.S. 277, 291, n.17 (1983)). Regardless, when gauging
proportionality, reviewing courts often consider the facts of the case in conjunction
with “[t]he commonly accepted goals of punishment.” Bult v. Leapley.
507 N.W.2d 325, 327 (S.D. 1993) (citing Gregg v. Georgia, 428 U.S. 153 (1976))
(listing retribution, individual and general deterrence, and rehabilitation). In
Maine, the criminal code provides eight goals of punishment:
1. To prevent crime through the deterrent effect of sentences, the
rehabilitation of convicted persons, and the restraint of convicted
persons when required in the interest of public safety;
2. To encourage restitution in all cases in which the victim can be
compensated and other purposes of sentencing can be appropriately
served;
3. To minimize correctional experiences which serve to promote
further criminality;
4. To give fair warning of the nature of the sentences that may be
imposed on the conviction of a crime;
5. To eliminate inequalities in sentences that are unrelated to
legitimate criminological goals;
6. To encourage differentiation among offenders with a view to a just
individualization of sentences;
19
7. To promote the development of correctional programs which elicit
the cooperation of convicted persons; and
8. To permit sentences that do not diminish the gravity of
offenses. . . .
17-A M.R.S. § 1151 (2012).
[¶31] In this case, Stanislaw had unlawful and inappropriate sexual contact
with a young girl resulting in three convictions for Class B unlawful sexual
contact. In committing those crimes, he caused significant emotional harm to the
girl, to her family, and to members of the family’s community, many of whom had
had a long-term, trusting relationship with Stanislaw. The court reflected its
recognition of the harm caused by Stanislaw by increasing the sentence for each
offense from the basic sentence of six years to eight years. The court then
concluded that even eight years of incarceration was insufficient, and imposed
consecutive sentences for each of the three Class B crimes, although the crimes
involved the same victim, and although they arguably constituted a single course of
conduct.
[¶32] Stanislaw also touched and kissed another girl, when she was slightly
older, and for that act was convicted of one count of Class C unlawful sexual
contact. Stanislaw’s crime caused significant emotional harm to the girl and to her
family. The court reflected the extent of that harm by increasing the sentence for
20
that offense from the basic sentence of three years to four years. Again, the court
concluded that the sentence warranted by this separate crime should be imposed
consecutively to the sentences imposed for the crimes against the first victim.
[¶33] As we noted earlier, we find no error in the court’s determination
concerning the maximum sentence for each crime, nor in its determination that the
sentences for these four felonies should be imposed consecutively. However, by
failing to suspend any portion of the three eight-year sentences imposed for the
Class B convictions, and then suspending only one year of the four-year sentence
imposed for the Class C felony, the court imposed a sentence that does not comport
with section 1151, and cannot be upheld. Stanislaw’s twenty-seven years of
incarceration will undoubtedly deter him from committing similar crimes during
that period, thereby promoting public safety. The incarceration, however,
precludes any opportunity for the legislatively established goal of rehabilitation;
does not, in any way, minimize a correctional experience that may serve to
promote further criminality; and creates an overall sentence for three Class B
offenses that exceeds sentences imposed for even more serious crimes. Based on
these factors, we find an inference of gross disproportionality between his sentence
on the Class B offenses and the offenses he committed.
21
2. Comparable Sentences
[¶34] With this inference of gross disproportionality between the offenses
and the sentence, we turn to compare Stanislaw’s sentence to the sentences
imposed for similar or more severe crimes within our jurisdiction. See Ward,
2011 ME 74, ¶ 20 n.5, 21 A.3d 1033 (setting forth the two-part test for
disproportionality analysis). In this analysis, we recognize that comparisons
among cases are difficult due to the multitude of factors that are taken into account,
including the crimes as committed, the defendant’s prior record, whether the
sentence was imposed after a trial or after a plea, and the age and other
characteristics of the victims. Given the differences among cases, there will almost
never be a precedent involving identical sentencing facts, and therefore exact
comparisons are not possible. In order to create as precise a comparison as
possible, however, we will review the sentence in light of the sentences imposed in
four groups of cases: (a) the comparable sentences presented by the State to the
sentencing court in this case, (b) cases involving comparable unsuspended prison
terms, (c) cases of gross sexual assault, and (d) cases of unlawful sexual contact.
(a) Comparable Sentences Presented by the State to the Sentencing
Court
[¶35] First, we consider the four “comparable” cases the State provided at
the original sentencing. See Stanislaw I, 2011 ME 67, ¶ 11 n.8, 21 A.3d 91. These
22
cases all involved sex crimes with multiple consecutive sentences. In each case, a
conviction was obtained after trial, while here, Stanislaw waived his jury trial right
and pleaded guilty. The comparable cases also all involved defendants with no
prior convictions for similar offenses, while here, Stanislaw had a 1982 conviction
for a similar offense. Nonetheless, these are the cases the State believed would
assist the sentencing court in reaching an appropriate sentence and the sentencing
court is free to consider these differences when determining what weight to give
the comparable sentences presented to it by the State and the defendant.
[¶36] The first case presented by the State involved four victims of unstated
age and included crimes ranging from Class A to Class D. Id. For those acts, after
trial, the defendant received three consecutive sentences. Id. The first sentence
was fifteen years, with all but eight years suspended, and ten years’ probation. Id.
The second sentence was eight years, all suspended, with six years’ probation, and
the third sentence was fifteen years, all suspended, with ten years’ probation. Id.
Overall, that defendant was sentenced to thirty-eight years, with all but eight years
suspended, and twenty-six years’ probation. Id.
[¶37] The second case involved one victim who was age nine and included
one Class B unlawful sexual contact conviction and seven Class C unlawful sexual
contact convictions. Id. For those acts, after trial, the defendant received
consecutive sentences on all counts. Id. The Class B conviction resulted in a
23
sentence of eight years, with all but four years suspended, and four years’
probation. Id. The seven Class C convictions each resulted in sentences of two
and a half years, all suspended, with one year probation. Id. Overall, the
defendant was sentenced to twenty-five and a half years, with all but four years
suspended, and eleven years’ probation.
[¶38] The third case involved two victims of unstated age and included one
Class B unlawful sexual contact conviction and two Class D assault convictions.
Id. For those acts, after trial, the defendant received three consecutive sentences.
Id. For the Class B conviction he received seven years, with all but three years
suspended, and twelve years of probation. Id. For each of the two Class D
convictions he received eleven months, all suspended, and one year of probation.
Id. In total, the defendant was sentenced to eight years and ten months, with all but
three years suspended, and fourteen years’ probation.
[¶39] The fourth case involved one victim who was age five and included
one Class B conviction for unlawful sexual contact. Id. For that act, after trial, the
defendant received a sentence of seven years, with all but three years suspended,
and eight years’ probation. Id.
[¶40] The State argues to us that these four sentences are comparable to
Stanislaw’s sentence when the overall sentences, including the suspended portions
of the sentences, are taken into account. That is not a reasonable comparison to
24
make; a prison term is simply not the equivalent of a suspended prison term and
probation. Logic recognizes this, and both the third step of the Hewey analysis and
our jurisprudence reflect this. 17-A M.R.S. § 1252-C(3) (determining what portion
of the sentence should be suspended); see State v. Reese, 2010 ME 30, ¶ 32, 991
A.2d 806 (holding that the sentencing court appropriately considered relevant
factors when determining whether any portion of the sentence should be
suspended). The cases chosen by the State to assist the sentencing court all
involved conduct that is either as serious or more serious than the acts committed
by Stanislaw and resulted in sentences ranging from three to eight years of
unsuspended incarceration. In contrast, Stanislaw’s sentence results in
twenty-seven years of unsuspended incarceration, a period three to nine times
longer than the unsuspended sentence imposed in any of the cases chosen by the
State as comparables. Using this method of comparison, Stanislaw’s sentence
appears grossly disproportionate.
(b) Cases Involving Comparable Unsuspended Prison Terms
[¶41] The second comparison focuses on cases involving prison terms
comparable to Stanislaw’s unsuspended term of twenty-seven years. In State v.
Archer, 2011 ME 80, ¶¶ 1, 3, 4, 6, 25 A.3d 103, the defendant was convicted of
attempted murder and elevated aggravated assault for stabbing his ex-girlfriend
with the stated intent of killing her. He was sentenced to eighteen years of
25
imprisonment, with all but thirteen years suspended, for the attempted murder
conviction, and thirteen years of imprisonment for the elevated aggravated assault
to be served concurrently, along with four years of probation. Id. ¶ 16.
[¶42] In Reese, 2010 ME 30, ¶¶ 1, 3, 25, 991 A.2d 806, the defendant was
convicted of elevated aggravated assault for shooting toward the victim nine times,
striking her with two bullets that inflicted life-threatening injuries, and abandoning
her where she collapsed on the side of a road at night. We held that the sentence of
a term of imprisonment of twenty-nine years, with no portion suspended, was not
excessive. Id. ¶¶ 1, 35.
[¶43] In State v. Keene, 2007 ME 84, ¶¶ 2, 7, 927 A.2d 398, we upheld a
sentence of thirty years’ imprisonment for a conviction of manslaughter and
kidnapping. The defendant shoved the victim’s head into a brick wall in an alley,
and then placed her in his truck and intentionally drove in such a manner that she
fell out of the truck and onto the road. Id. ¶¶ 4 & n.4, 5. The victim died a few
days later due to a head injury. Id. ¶ 5. The trial court ordered the two consecutive
sentences based on the defendant’s probationary status and the seriousness of the
crimes: a twenty-year sentence for manslaughter and a sixteen-year sentence, with
all but ten years suspended, for the kidnapping. Id. ¶ 7. The defendant’s total
unsuspended sentence was thirty years.
26
[¶44] In State v. Dumas, 2010 ME 57, ¶ 11, 997 A.2d 760, the defendant
was sentenced to a thirty-year period of imprisonment for a murder conviction
following a jury trial. The defendant ingested an “8 ball” of cocaine and, while
“out of [his] mind,” shot a friend five times, killing the friend. Id. ¶ 8.
[¶45] These cases involve crimes that are more violent than Stanislaw’s
actions; in all four cases the victim either lost or nearly lost his or her life. Despite
this distinction, these defendants were sentenced at most to spend only three years
in prison longer than was Stanislaw. This comparison also suggests the
disproportionate nature of Stanislaw’s sentence.
(c) Cases of Gross Sexual Assault
[¶46] The third comparison focuses on cases involving the more serious
crime of gross sexual assault, pursuant to 17-A M.R.S. § 253 (2012).7 Stanislaw’s
unsuspended prison term is longer, sometimes significantly so, than those imposed
in many gross sexual assault cases. For example, in State v. Soucy, 2006 ME 8,
¶¶ 1, 3 n.3, 890 A.2d 719, the defendant was convicted of two counts of gross
sexual assault (Class A) and three counts of unlawful sexual contact (Class B), and
he had a prior conviction of one count of gross sexual misconduct (Class A) and
three counts of unlawful sexual contact (Class C). He was sentenced to thirty-five
7
All convictions for gross sexual assault, unlike those for unlawful sexual contact, require proof
beyond a reasonable doubt that the defendant has committed a sexual act against the victim. See footnote
two of this opinion for the definition of “sexual act” in 17-A M.R.S. § 251(1)(C).
27
years, with all but twenty years suspended, for over one hundred instances of
sexual touching and at least five acts of rape. Id. ¶¶ 4, 10. Other examples are
State v. Gould, 2012 ME 60, 43 A.3d 952, in which the defendant was sentenced to
twelve years of unsuspended imprisonment for two counts of gross sexual assault;
State v. Dion, 2007 ME 87, 928 A.2d 746, in which the defendant was sentenced to
five years and one day of unsuspended imprisonment for gross sexual assault
against a three-year-old victim; State v. Lewis, 1998 ME 83, 711 A.2d 119, in
which the defendant, who had a prior violent record, was sentenced to nine years
of unsuspended imprisonment for thirty to forty instances of sexual abuse against
an elementary school student; and State v. Prewara, 687 A.2d 951 (Me. 1996), in
which we upheld the defendant’s sentence of fifteen years of unsuspended
imprisonment for sexually assaulting a six-month old causing bruising, bleeding,
and substantial tearing of her vagina. Stanislaw’s unsuspended sentence for
convictions of unlawful sexual contact was longer than many, but not all,
unsuspended sentences imposed in gross sexual assault cases. This inconsistency
suggests a lack of proportionality.
(d) Cases Involving Unlawful Sexual Contact
[¶47] The fourth area of comparison consists of a review of cases involving
unlawful sexual contact, which is the crime at issue here. As with the cases the
State presented, we recognize that these cases are not directly comparable because
28
Stanislaw had multiple victims and his actions took place over an extended
timeframe. Nonetheless, these cases do provide some information about sentences
imposed on other defendants whose actions fall within the definition of unlawful
sexual contact, Stanislaw’s most serious crimes. Examples include State v. Severy,
2010 ME 126, 8 A.3d 715, in which the defendant was sentenced to six years of
unsuspended imprisonment for repeatedly allowing and encouraging a seven or
eight-year-old girl to rub his penis; State v. Lavoie, 2010 ME 76, 1 A.3d 408, in
which the defendant was sentenced to five years of unsuspended imprisonment for
reaching down the pants of a nine-year-old girl; State v. Graham, 2010 ME 60, 998
A.2d 339, in which the defendant was sentenced to three and a half years of
unsuspended imprisonment for exposing himself to and touching the genitals of a
nine-year-old girl; and State v. Moores, 2006 ME 139, 910 A.2d 373, in which the
defendant was sentenced to three and a half years of unsuspended imprisonment
for twice touching the genitals of a thirteen-year-old girl. We note that Stanislaw’s
term of imprisonment is roughly four and a half to eight times longer than the
terms of imprisonment for these defendants.
(e) Conclusion Regarding Comparisons
[¶48] The disparity in sentences revealed by all four categories of
comparison leads us to conclude that, although Stanislaw’s total sentence is within
the parameters of the sentencing statutes, the unsuspended portion of the period of
29
imprisonment is grossly disproportionate to the crimes he committed when
compared to the sentences imposed for the same or similar crimes, and some more
serious crimes. As we noted in Stanislaw I, Stanislaw pleaded guilty to several
serious crimes. 2011 ME 67, ¶ 12, 21 A.3d 91. His abuse of the trust placed in
him was deplorable and may result in significant lasting emotional injury to the
victims. Without minimizing the harm suffered by the victims due to Stanislaw’s
inexcusable and deviant acts, his offenses must also be assessed by what they did
not involve. Stanislaw was convicted of crimes involving contact between hands
and genitals, hugging while nude, and kissing. His crimes were appalling, but they
did not involve the use of physical force or a weapon, threats of violence, or any
other factors that warrant an ultimate sentence imposing an unsuspended
twenty-seven-year term of imprisonment.
3. Conclusion Regarding Excessiveness of the Overall Sentence
[¶49] In sum, for the reasons articulated by the sentencing court, it is
appropriate for a portion of Stanislaw’s term to be served consecutively to another
term. See Keene, 2007 ME 84, ¶ 26, 927 A.2d 398 (noting that “a defendant does
not have a constitutional right to serve concurrent sentences for multiple violent
offenses”). However, the court failed to consider whether the resulting overall
unsuspended portion of Stanislaw’s sentence should be subject to any additional
suspension in order to ensure that the overall sentence was proportionate. As a
30
result, and as shown by the comparative analysis we have undertaken, the
unsuspended portion of Stanislaw’s overall sentence is disproportionate and must
be vacated. In short, to avoid an overall sentence in this case that will result in
“manifest and unwarranted inequalities among the sentences of comparable
offenders,” 15 M.R.S. § 2154(3), and fails “[t]o eliminate inequalities in sentences
that are unrelated to legitimate criminological goals,” 17-A M.R.S. § 1151(5), the
court must sentence Stanislaw to an unsuspended term of imprisonment that is
shorter than sentences imposed on defendants who have raped, kidnapped, or killed
their victims.
[¶50] By imposing a sentence that included twenty-seven unsuspended
years of incarceration, the court exceeded its discretion and therefore erred. The
underlying consecutive sentences themselves do not create a proportionality
problem. The proportionality problem exists with the unsuspended twenty-seven
years of the overall sentence because it is far out of line with sentences of other
defendants convicted of unlawful sexual contact. Because this is an unusual case
in that we have now twice vacated the sentences imposed, and the need for finality
is particularly acute because the case involves young victims, we provide
additional guidance for the sentencing on remand, cautioning that it is based on the
existing sentencing record and not on the record that may be developed following
our remand. The data presently available to us suggests that an unsuspended
31
sentence of one-third to one-half of the current unsuspended sentence would
comply with our constitutional and statutory proportionality requirements. Such a
sentence protects the public from Stanislaw, deters crime through the suspended
sentence and accompanying probation, and yet does not diminish the gravity of
Stanislaw’s offenses. Accordingly, we vacate the sentence and remand for
resentencing. See 15 M.R.S. § 2156(1-A) (2012).
D. Reassignment
[¶51] We deny Stanislaw’s request that we include an order that on remand
a different Justice be assigned to undertake resentencing. Although we have now
vacated two sentencing decisions in this case, we discern no basis on which to
order a reassignment to a different Justice.
The entry is:
Sentence vacated and remanded to the Superior
Court for resentencing consistent with the opinion
herein.
SAUFLEY, C.J., with whom MEAD and GORMAN, JJ., join, concurring in part
and dissenting in part.
[¶52] With the greatest respect for the difficulty facing appellate courts and
trial courts in determining appropriate sentences in child sex offense cases, I
32
cannot agree with the Court’s conclusion that a proportionality analysis would
result in a sentence that is reduced by one-half to two-thirds, because neither we
nor the trial court have enough information to make such a determination.
[¶53] I concur in the Court’s conclusion that the sentence must be vacated
and the case remanded for further consideration, and I concur in the Court’s
analysis regarding the trial court’s responsibility to assure that consecutive
sentences are accompanied by a final review for proportionality. I also concur in
the Court’s analysis regarding the unusual structure of the sentence, which, I note,
leaves Stanislaw with only four years of probation and only a single year of
incarceration anchoring that probation period, despite the evident need for a longer
period of close supervision to protect children.
[¶54] I must, however, respectfully dissent from the Court’s opinion in two
respects. First and foremost, no resentence of this admitted sex offender should
occur without a thorough and searching review of his history. Nor should a
contested sentence in the range of this sentence ever be undertaken in any case
without such a review of the defendant’s history. Second, because it is
affirmatively not the role of the Law Court to set sentences, the Court’s discussion
of an appropriate range for the sentence in this case should not be read to impose a
specific upper limit on the sentence that the trial court may impose on remand.
The authority to sentence a defendant is reserved entirely to the trial court.
33
Therefore, I caution that the Court’s suggestion today of the range for the sentence
that should be imposed on remand, if read as a mandate, would exceed this Court’s
authority and prerogative.
[¶55] Moreover, the suggestion of an appropriate range, even in a precatory
fashion in the context of a proportionality discussion, should not be made on the
record before us because the record lacks necessary information regarding
Stanislaw’s background.
I. FACTUAL BACKGROUND AND SENTENCING PROCESS
[¶56] We cannot overlook the factual context in which this sentence was
initially imposed, including Stanislaw’s prior felony child sexual abuse conviction;
his highly skillful cultivation of the parents’ trust; the number of victims; the
number of days, weeks, months, and years in which he perpetrated his crimes and
abused each victim; and the effect on the child victims and the community of a
person who has the intellect, but not the moral fiber, to recognize that his behavior
is abhorrent.
[¶57] Notwithstanding this background, the State, at the original
sentencing, made no specific recommendation for a final period of incarceration
and did not present a presentence investigation report. Most strikingly, the State
offered no information whatsoever about Stanislaw’s history between 1982, when
he was convicted of his first crime of child sexual abuse, and 2004, more than
34
twenty years later, when he first began to abuse children in Blue Hill. Stanislaw
pleaded guilty to each of the charges in an “open plea” format. His attorney
argued that Stanislaw should spend no time in jail but that a substantial period of
probation should be imposed. For its part, the State did not present a presentence
investigation, did not give the court information on Stanislaw’s missing
twenty-two years, and did not provide a recommended sentence. It did, however,
provide sentences from four roughly comparable cases, the highest of which called
for a final sentence of eight years in prison, with a lengthy underlying sentence and
a long period of probation.8
[¶58] Thus, with Stanislaw arguing for no jail time, and the State suggesting
that eight years was the highest appropriate final sentence, the trial court imposed a
final sentence that was more than three times higher than the outer range presented
by the State, and it did so without information regarding Stanislaw’s history and
without the specific findings required by statute. See State v. Stanislaw, 2011 ME
8
The longest final prison sentence included in the State’s materials was eight years. This may explain
the absence of a background evaluation or presentence investigation report in the first sentencing. In the
case with the longest sentence, the sentencing court imposed an underlying sentence of thirty-eight years,
with eight years to be immediately served in prison, and twenty-six years of probation. The next most
severe of the comparables imposed an underlying sentence of twenty-five and a half years, with four
years to be served in prison immediately, and eleven years of probation. The other two comparable
sentences involved underlying sentences of seven and nearly nine years, respectively, with three years to
be served in prison immediately in each case. Thus, the longest final sentence of imprisonment suggested
by the State was eight years.
35
67, ¶¶ 4, 16, 21 A.3d 91; see 17-A M.R.S. § 1252-C(1) (2012). Accordingly, we
vacated the sentence and remanded the case for resentencing. Id. ¶ 16.
[¶59] On remand, the court did not request or receive a presentence
investigation report or any other new information from the parties. Again, both
parties failed to provide any information whatsoever regarding Stanislaw’s
whereabouts, his employment, his contact with children, his criminal records, or
any other aspect of his life during the time between Stanislaw’s felony conviction
in 1982 and his activities in the Blue Hill community beginning in 2004.
Notwithstanding the absence of this critical information about the defendant’s
history, a substantial focus of the sentencing court was the court’s assessment that
Stanislaw was not a good candidate for rehabilitation.
[¶60] When a sentencing court is considering, in a contested sentencing, the
imposition of a sentence that is likely to place the defendant in prison for twenty
years or more, and is determining the need for and potential efficacy of probation,
the best practice is for the court to have a presentence investigation report or other
accurate and detailed information about the defendant and his background,
including the level of danger to the public and the defendant’s amenability to
rehabilitation. Without that information, it is difficult, if not impossible, for the
court to thoughtfully address the second and third steps of the required statutory
sentencing analysis, and nearly impossible for an appellate court to meaningfully
36
review that analysis. In this case, the gap in information is particularly evident in
the trial court’s decision to impose such a brief period of probation in
circumstances where the court also determined that the defendant presents a grave
danger to children in the community.
[¶61] Recognizing that we should have explicitly required a thorough
background investigation upon our earlier remand, I would now explicitly mandate
a presentence investigation report before Stanislaw is resentenced.
II. LAW COURT AUTHORITY IN THE SENTENCING PROCESS
[¶62] After carefully analyzing the legal requirements for proportionality,
rather than simply remanding for the trial court to apply the law correctly, the
Court today suggests that the sentence to be determined upon remand should not
exceed thirteen and a half years.
[¶63] To the extent that the Court’s suggestion is intended to provide
assistance to the trial court in addressing the proportionality analysis that is
required in this instance due to the imposition of multiple consecutive sentences,
the Court acts within its authority to provide guidance regarding the application of
the sentencing statutes.
[¶64] To be clear, however, it is not within the authority of the Law Court
to sentence any individual who has been convicted of a crime. The Court’s
authority is limited to assuring that the law is followed, including by assuring
37
accurate application of the sentencing factors, facilitating rehabilitation when that
is possible, promoting respect for the law, and promoting the development of
rational and just sentencing criteria. See 15 M.R.S. § 2154 (2012). The only relief
that is authorized when the Law Court has determined that there was an error in
sentencing is as follows: the Court “must remand the case to the court that imposed
the sentence for any further proceedings that could have been conducted prior to
the imposition of the sentence under review and for resentencing on the basis of
such further proceedings.” 15 M.R.S. § 2156(1-A) (2012) (emphasis added).9
[¶65] Although I certainly understand the intent of the Court to provide
guidance to the trial judge following remand, I remain concerned that the Court’s
suggestion in this context could be misunderstood as a mandate. Therefore, I write
to stress that it would be inaccurate to read the Court’s suggested range as setting a
hard limit on the sentence that could be imposed on remand.
9
The Law Court once had the statutory authority to set the sentence to be imposed on remand. See
15 M.R.S.A. § 2156(1) (Supp. 1989) (authorizing the Supreme Judicial Court to “[s]ubstitute for the
sentence under review any other disposition that was open to the sentencing court, provided however, that
the sentence substituted shall not be more severe than the sentence appealed”). That authority was
eliminated by the Legislature, see P.L. 1991, ch. 525, §§ 3, 4 (effective June 30, 1991), after the Court
specifically reduced the sentences of sex offenders in a pair of sentence appeals, see State v. Clark, 591
A.2d 462 (Me. 1991) (on obvious error review, reducing a sentence of imprisonment for gross sexual
assault from thirty years to fifteen years); State v. Michaud, 590 A.2d 538 (Me. 1991) (reducing a
sentence of imprisonment for two counts of gross sexual misconduct from forty years to fifteen years, all
but twelve suspended); see also State v. Lewis, 590 A.2d 149 (Me. 1991) (reducing a sentence of
imprisonment in an arson case from twenty years, all but fifteen suspended, to ten years, all but eight
suspended); State v. Gosselin, 600 A.2d 1108 (Me. 1991) (vacating and remanding, without ordering the
replacement sentence, a forty-year sentence imposed upon a manslaughter conviction after the 1991
repeal of section 2156(1)).
38
[¶66] Finally, I note that the Court’s suggested sentencing range is
presented in the absence of a complete background investigation of Theodore
Stanislaw. I would not offer such a range, suggesting that the maximum sentence
should not exceed thirteen and a half years, in the absence of that information.
III. CONCLUSION
[¶67] I concur in the Court’s determinations that the sentence must be
vacated, that a proportionality analysis should be undertaken before the final
sentence is imposed, and that the structure of that final sentence must be carefully
reviewed by the trial court. I would mandate a thorough and searching history of
Stanislaw before any further consideration of an appropriate sentence. And I
would reject any reading of the Court’s opinion that limits the maximum
unsuspended prison time to thirteen and a half years. We should not usurp the
authority of the trial court to engage in one of its most important responsibilities,
and we should not suggest a prospective sentence when all of the critical facts are
not yet available. I would remand for the court to require the completion of a
thorough presentence investigation of Stanislaw before any further sentencing is
undertaken.
39
On the briefs:
Glen L. Porter, Esq., and Ryan P. Dumais, Esq., Eaton Peabody, Bangor, for
appellant Theodore S. Stanislaw
Carletta Bassano, District Attorney, and Mary N. Kellett, Asst. Dist. Atty.,
Prosecutorial District No. VII, Ellsworth, for appellee State of Maine
At oral argument:
Glen L. Porter, Esq., for appellant Theodore S. Stanislaw
Mary N. Kellett, Asst. Dist. Atty., Prosecutorial District No. VII, Ellsworth,
for appellee State of Maine
Hancock County Superior Court docket number CR-2008-292
FOR CLERK REFERENCE ONLY