State of Maine v. Mark Gessner , 2021 ME 41 ( 2021 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 41Docket: Ken-20-242
Argued: April 8, 2021
Decided: July 27, 2021
Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
STATE OF MAINE
v.
MARK GESSNER
CONNORS, J.
[¶1] Shortly after allegedly leaving the custody of Riverview Psychiatric
Center in Augusta, without permission, Mark Gessner was arrested for criminal
threatening with a dangerous weapon at his father’s home in Bath. A jury
acquitted Gessner of the criminal threatening charge in Sagadahoc County, and
the State subsequently charged Gessner with escape in Kennebec County. After
the trial court (Kennebec County, Murphy, J.) denied Gessner’s motion to
dismiss the successive prosecution, Gessner entered a conditional guilty plea.
On appeal, Gessner argues that, by separately trying him for criminal
2
threatening in Sagadahoc County and then for escape in Kennebec County, the
State violated 17-A M.R.S. § 14 (2021).1 We agree and vacate the judgment.
I. BACKGROUND
[¶2] The following procedural facts are drawn from the record.
[¶3] On January 17, 2020, the State filed a complaint in the trial court
(Kennebec County) charging Gessner with escape (Class B), 17-A M.R.S.
§ 755(1)(B) (2021). Gessner was indicted a month later. The indictment
alleged that Gessner had been in the official custody of the Department of
Health and Human Services on October 21, 2018, pursuant to a commitment
order and that, without official permission, he left that custody or failed to
return to custody after being granted temporary leave. The indictment further
alleged that Gessner had “used physical force against another person,
threatened to use physical force, or was armed with a dangerous weapon” at
the time of the offense.
[¶4] On June 11, 2020, Gessner filed a motion to dismiss the indictment,
arguing that 17-A M.R.S. § 14 barred the State from prosecuting him for escape
in Kennebec County because (1) he had already been prosecuted for—and
1Gessner also argues that the multiplicity of prosecutions here raises public policy concerns. We
decline to address his argument.
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acquitted of—criminal threatening with a dangerous weapon in Sagadahoc
County, (2) the alleged crimes arose from the same criminal episode,
(3) prosecutors in both counties had knowledge of the alleged criminal conduct
shortly after it allegedly occurred, and (4) the Sagadahoc County District
Attorney’s Office could have prosecuted Gessner for escape in accordance with
the venue provision in the escape statute. Gessner’s motion further argued that
the indictment should be dismissed for “malicious prosecution” because the
court could reasonably infer that “the only reason” that Kennebec County
initiated the prosecution was because Sagadahoc County “lost at trial.”
[¶5] The State filed a response arguing that Kennebec County had
exclusive authority to prosecute Gessner for escape and that the alleged crimes
did not arise from the same criminal conduct or same criminal episode. The
State also denied Gessner’s claim of misconduct.
[¶6] On June 24, 2020, the trial court held a nontestimonial hearing in
which the facts—although minimally developed—were not disputed. The
undisputed facts are the following: Gessner, who was confined to the Riverview
Psychiatric Center in Augusta pursuant to a court order, was granted
temporary leave in the form of a “two-hour unsupervised community pass” to
ride his bike “in the Augusta/Hallowell area” beginning at 10:04 a.m. on
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October 21, 2018. Gessner traveled to his father’s home in Bath, without official
permission, where he engaged in an altercation with his brother. Gessner was
arrested in Bath at 11:45 a.m. The State, through the Sagadahoc County District
Attorney’s Office, charged Gessner with two counts of criminal threatening with
a dangerous weapon (Class C) in violation of 17-A M.R.S. §§ 209(1), 1252(4)
(2018).2 An investigating officer of the Bath Police Department submitted a
report to the Sagadahoc County District Attorney’s Office in which the officer
described a conversation that he had had with a representative from Riverview
about the terms of Gessner’s temporary leave and the circumstances of his
arrest. By a letter dated October 23, 2018, Riverview notified the Sagadahoc
County and Kennebec County District Attorneys’ Offices that Gessner had
violated the terms of his temporary leave. Prior to trial in Sagadahoc County,
the State dismissed one of the counts of criminal threatening. On
September 27, 2019, a jury returned a verdict of not guilty on the other count.
On January 17, 2020, the State, through the Kennebec County District
Attorney’s Office, charged Gessner with escape (Class B) in violation of
17-A M.R.S. § 755(1)(B).
2As part of a recodification of Maine’s sentencing statutes, 17-A M.R.S. § 1252(4) (2018) was
repealed and replaced by 17-A M.R.S. § 1604(5)(A) (2021). P.L. 2019, ch. 113, §§ A-1, A-2
(emergency, effective May 16, 2019).
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[¶7] At the conclusion of the hearing, the court found that the escape and
criminal threatening allegations were part of “one course of conduct” because
the alleged crimes occurred across county lines within “a span of a few hours”
and because escape is a “continuing” offense. The court further found that the
State had not engaged in prosecutorial misconduct. The court took the matter
under advisement to consider whether venue would have been proper in
Sagadahoc County on a charge of escape from custody in Kennebec County. On
June 30, 2020, the court issued a written decision denying Gessner’s motion.
The court concluded that, pursuant to 17-A M.R.S. § 755(3-A) (2021) and State
v. Chasse, 2002 ME 90, 797 A.2d 1262, the State properly commenced the
prosecution for escape in Kennebec County.
[¶8] On August 12, 2020, the State filed a motion to amend the
indictment by striking the language alleging that Gessner “used physical force
against another person, threatened to use physical force, or was armed with a
dangerous weapon,” making the amended charge a Class C offense under
17-A M.R.S. § 755(1)(A) (2021). On August 21, 2020, Gessner entered a
conditional guilty plea to the amended charge. See M.R.U. Crim. P. 11(a)(2). He
timely appeals. See 15 M.R.S. § 2115 (2021); M.R. App. P. 2B(b).
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II. DISCUSSION
A. Standards of Review
[¶9] We review a trial court’s application of a statutory defense de novo.
See State v. Carter, 2016 ME 157, ¶ 5, 150 A.3d 327; State v. Graham, 2015 ME
35, ¶ 15, 113 A.3d 1102; State v. Cannell, 2007 ME 30, ¶ 6, 916 A.2d 231. In
doing so, we interpret the relevant statutes de novo. State v. Conroy, 2020 ME
22, ¶ 19, 225 A.3d 1011. When interpreting a statute, “[w]e look first to the
plain language of the statute to determine its meaning if we can do so while
avoiding absurd, illogical, or inconsistent results.” Id. “Only if the meaning of a
statute is not clear will we look beyond the words of the statute to examine
other potential indicia of the Legislature’s intent, such as the legislative
history.” Id. “Nothing in a statute may be treated as surplusage if a reasonable
construction applying meaning and force is otherwise possible.” State v. Tozier,
2015 ME 57, ¶ 6, 115 A.3d 1240 (quotation marks omitted).
[¶10] That said, we review a trial court’s factual determinations for clear
error, see State v. Treadway, 2020 ME 127, ¶¶ 13-16, 240 A.3d 66, even when
the court’s fact-finding is based entirely upon documentary evidence and
stipulated facts, Herzog v. Irace, 594 A.2d 1106, 1108 (Me. 1991).
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B. The Separate Trials Statute
[¶11] The separate trials statute, 17-A M.R.S. § 14, provides:
A defendant shall not be subject to separate trials for multiple
offenses based on the same conduct or arising from the same
criminal episode, if such offenses were known to the appropriate
prosecuting officer at the time of the commencement of the first
trial and were within the jurisdiction of the same court and within
the same venue, unless the court, on application of the prosecuting
attorney or of the defendant or on its own motion, orders any such
charge to be tried separately if it is satisfied that justice so requires.
In other words, section 14 generally limits the multiplicity of prosecutions for
all criminal offenses arising from the same set of circumstances. See L.D. 314,
§ 1, at 13-14 (107th Legis. 1975); see also State v. Soule, 2002 ME 51, ¶ 9,
794 A.2d 58 (describing section 14 as a compulsory joinder statute). The
penalty for failure to join in one trial all such offenses is a bar to further
prosecution. Model Penal Code & Commentaries § 1.07 cmt. 3 at 116 (Am. L.
Inst. 1985).
[¶12] The prohibition against separate trials for multiple offenses based
on the same conduct or arising from the same criminal episode is subject to two
conditions. First, the “appropriate prosecuting officer” must have known, when
the first trial began, of the criminal offenses that are later alleged in the second
prosecution. 17-A M.R.S. § 14. The purpose of this condition is to prevent a
defendant from taking advantage of the fact that he has successfully concealed
8
his criminal activity from enforcement officials. Model Penal Code
& Commentaries § 1.07 cmt. 3 at 123. Second, the trial court that presided over
the first prosecution must have been a court of proper jurisdiction and venue
of the offenses alleged in the second prosecution. 17-A M.R.S. § 14.
[¶13] Gessner argues that the trial court erred by concluding that his
section 14 defense fails on the jurisdiction and venue requirements of the
statute. Aside from arguing that the trial court properly concluded that venue
was improper in Sagadahoc County for the escape charge, the State also argues
that we could affirm the judgment on the alternative ground that the trial court
erred when it found that the crimes with which Gessner was charged in
Sagadahoc County and Kennebec County arose from the same criminal episode.
See 15 M.R.S. § 2115-A(3) (2021); M.R. App. P. 2C(a)(1). We address each
argument in turn.3
1. Jurisdiction and Venue
[¶14] For section 14 to bar successive prosecution, the alleged offenses
must have been committed “within the jurisdiction of the same court and
within the same venue.”
At the hearing, the State conceded that the “appropriate prosecuting officer” had the requisite
3
knowledge, and neither party challenges on appeal whether that condition of 17-A M.R.S. § 14
(2021) was satisfied.
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[¶15] “[J]urisdiction of the same court” refers to the jurisdiction
conferred on the Superior Court and the District Court. See 4 M.R.S. § 165
(2021); 15 M.R.S. § 1 (2021); see also State v. Pease, 452 A.2d 653, 654
(Me. 1982) (stating that a statute did not authorize removal from the District
Court to the Superior Court but related only to “venue within the same court”).
Since the creation of the Unified Criminal Docket, the distinction between the
two courts has become largely unimportant in most criminal matters. See
M.R.U. Crim. P. 57 Advisory Note - June 2016 (stating that the definition of
“Unified Criminal Docket” makes clear that the “unification of the two trial
courts’ criminal dockets further signals that the former distinctions between
the functions of the Superior and District Courts in their handling of criminal
matters have largely been eliminated”); Ayotte v. State, 2015 ME 158, ¶ 22 n.1,
129 A.3d 285 (“Pursuant to the Maine Rules of Unified Criminal Procedure, the
State of Maine prosecutes crimes within the single statewide Unified Criminal
Docket. Prior to the recent unification process, crimes were either prosecuted
in the Superior Court or District Court, each of which is also a single, statewide
court.” (citation omitted)). Here, the distinction is inconsequential. Even under
the former system of separate and distinct dockets in the Superior and District
Courts, the jurisdictional requirement of section 14 would have been satisfied
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because the crimes with which Gessner was charged were Class B and Class C
offenses, giving the Superior Court jurisdiction in both matters. See 15 M.R.S.
§ 1(1) (giving the Superior Court jurisdiction over all crimes); 4 M.R.S. § 165(1)
(giving the District Court jurisdiction over only crimes for which the maximum
term of imprisonment is less than one year); see also State v. Rytky, 476 A.2d
1152, 1153-54 (Me. 1984) (holding that prosecution of a major offense in the
Superior Court was not barred by the earlier prosecution of related minor
offenses in the District Court because the District Court did not have
jurisdiction over the major offense).
[¶16] Section 14 also requires that the alleged offenses occurred “within
the same venue.” Generally, venue of a criminal offense is governed by M.R.U.
Crim. P. 21(a), which provides that “[t]he trial shall be in the county in which
the crime was allegedly committed.” The escape statute, 17-A M.R.S. § 755
(2021), is unusual among criminal statutes, however, in that it contains its own
venue provisions. Section 755(3-A) reads in relevant part:
3-A. The following provisions govern prosecution for escape.
A. Prosecution for escape or attempted escape from any
institution included in subsection 3 must be in the county in
which the institution is located.
....
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C. Prosecution for an escape or attempted escape for failure
to return to official custody following temporary leave
granted for a specific purpose or a limited period must be in
the county in which the institution from which the leave was
granted is located or in any county to which leave was
granted.
....
Notwithstanding other provisions of this section, in all cases of
escape, prosecution may be in the county or division in which the
person who has escaped was apprehended.
[¶17] Relying on our decision in Chasse, 2002 ME 90, ¶ 8, 797 A.2d 1262,
and the language in section 755(3-A)(A) and (C), the State contends that the
charge of escape could have been initiated only in Kennebec County, where
Riverview is located. The State reads Chasse too broadly and the statute too
narrowly.
[¶18] In Chasse, the defendant escaped from custody while being
transported from the Piscataquis County Jail to the Superior Court for trial.
2002 ME 90, ¶ 2, 797 A.2d 1262. He was apprehended later that same day in
Piscataquis County, and a Piscataquis County grand jury indicted the defendant
for escape and other crimes. Id. ¶¶ 2-3. After multiple transfers of venue
pursuant to M.R. Crim. P. 21, the trial was held in Somerset County. Id. ¶¶ 4-5, 7.
On appeal, the defendant argued that the escape statute, by its own terms and
notwithstanding M.R. Crim. P. 21, required that his trial be held in Piscataquis
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County. Id. ¶¶ 6, 8. The issue before us then was whether transferring the trial
to another county pursuant to a procedural rule violated the venue provisions
of the escape statute. Id. ¶¶ 6-8. Given the procedural posture of the case, we
stated that the escape statute required only that the prosecution commence in
the county where the institution from which the escape was made is located but
that, once the prosecution had commenced in that county, the place of trial
could be transferred to another county. Id. ¶ 8. We noted that “[t]he venue
provision of the escape statute was satisfied when the indictment and
arraignment occurred in the county in which the escape took place and where
[the defendant] was apprehended.” Id. ¶ 8 (emphasis added). In contrast, the
issue presented here is whether the county in which Gessner was apprehended,
which was a different county than the one where the institution was located,
was a proper venue pursuant to the escape statute. We conclude that it was.
[¶19] Turning to the escape statute, the final provision of
section 755(3-A) states that “notwithstanding” the specific venue provisions
that account for the myriad ways in which a person may escape official custody,
“in all cases of escape, prosecution may be in the county or division in which
the person who has escaped was apprehended.” By the plain and unambiguous
terms of the statute, Sagadahoc County was a proper venue to prosecute
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Gessner for escape because it was the county in which he was apprehended. To
require the prosecution for escape to commence in Kennebec County would
render the final provision of the statute meaningless.4 The trial court erred
when it concluded that the prosecution for escape had to commence in
Kennebec County.
2. Same Conduct or Same Criminal Episode
[¶20] Upon the satisfaction of the knowledge, jurisdiction, and venue
requirements, section 14 will preclude “separate trials for multiple offenses
based on the same conduct or arising from the same criminal episode.” As
noted above, we review the trial court’s determination that offenses are based
on the same conduct or arise from the same criminal episode for clear error.
See Treadway, 2020 ME 127, ¶¶ 13-16, 240 A.3d 66.
[¶21] The trial court’s finding that Gessner’s alleged escape from
Riverview and his alleged threat against a family member arose from the same
4 Although we need look no further than the plain language of the statute, the legislative history
of 17-A M.R.S. § 755(3-A) (2021) further supports our interpretation. The Legislature broadened
section 755(3-A) to allow the State to prosecute an escapee in the county in which the escapee is
apprehended, P.L. 1979, ch. 701, § 26 (effective July 3, 1980), “to take account of those instances
where there are important witnesses in the locality the escapee was found,” Criminal Law Advisory
Commission, Draft Amendments for the 109th Legislature, 2d Reg. Sess. 96 (Nov. 1979).
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criminal episode is supported by the record.5 Offenses “arising from the same
criminal episode”6 are offenses related in time, place, and circumstances.7 The
record shows that Gessner’s two-hour community pass began at 10:04 a.m. and
that he was arrested at 11:45 a.m. Thus, not only was Gessner still within the
time limit permitted by the pass, but he did not violate the terms of the pass—
and allegedly commit escape—until he traveled outside the permitted area.
[¶22] Furthermore, the court’s consideration of the continuing nature of
escape in support of its finding that the alleged offenses were based on the same
criminal episode was proper. In United States v. Bailey, 444 U.S. 394, 413
(1980), the United States Supreme Court concluded that escape from custody
pursuant to federal law is “a continuing offense” in that “an escapee can be held
liable for failure to return to custody as well as for his initial departure.” The
Although the trial court stated that it found that the alleged offenses were part of a “continuing
5
course of conduct,” it is clear from the record that the trial court analyzed the facts pursuant to the
“same criminal episode” standard.
The Model Penal Code & Commentaries § 1.07 cmt. 3 at 118-19 (Am. L. Inst. 1985) states that
6
“offenses . . . arising from the same criminal episode” include “offenses that occur on substantially
the same occasion or are motivated by a common purpose or plan and are necessary or incidental
to the accomplishment of that purpose or plan.”
Although the State argues that the allegations of escape and criminal threatening in this case
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were unrelated, the State apparently believed that there was some relation when it sought an
indictment against Gessner because the indictment alleged that, at the time that he left official
custody or failed to return to custody, Gessner “used physical force against another person,
threatened to use physical force, or was armed with a dangerous weapon”—an element that could
have been proved only by offering evidence of the events that occurred in Sagadahoc County.
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Court added that, “[g]iven the continuing threat to society posed by an escaped
prisoner, ‘the nature of the crime involved is such that Congress must assuredly
have intended that it be treated as a continuing one.’” Id. (quoting Toussie v.
United States, 397 U.S. 112, 115 (1970)). Many state courts have similarly
interpreted their analogous state statutes. See, e.g., State v. Francois,
577 N.W.2d 417, 421 (Iowa 1998) (“[T]here is a continued danger to society
when a person, whom the court has determined should be in custody, remains
at large. Moreover, when such a person continues to elude arrest, the threat to
the authority of the courts and the correctional system continues. . . . [A]n
escapee, and likewise a person absent from custody, has a continuing duty to
return to custody.”); State v. Burns, 564 A.2d 593, 594-96 (Vt. 1989); Campbell
v. Griffin, 710 P.2d 70, 71-73 (Nev. 1985). We conclude that escape as defined
by 17-A M.R.S. § 755(1)(A)—providing that “[a] person is guilty of escape if
without official permission the person intentionally . . . [l]eaves official custody
or intentionally fails to return to official custody following temporary leave
granted for a specific purpose or a limited period”—is a continuing offense.
[¶23] There may be circumstances in which an escape and the
commission of a crime thereafter are too attenuated to constitute the same
criminal episode for purposes of section 14—when, for example, the
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commission of a crime occurs years after the initial escape. But under the
circumstances here, there was no error. Although Gessner allegedly committed
the crime of escape when he crossed the imaginary line marking the boundary
of his confinement, his escape was still ongoing when he was apprehended just
a short time later in an adjoining county.
The entry is:
Judgment vacated. Remanded to the trial court
for entry of dismissal of the indictment.
Clifford B. Strike, Esq. (orally), Strike & Associates, Portland, for appellant Mark
Gessner
Maeghan Maloney, District Attorney, and Michael H. Madigan, Asst. Dist. Atty.
(orally), Prosecutorial District Four, Augusta, for appellee State of Maine
Kennebec County Unified Criminal Docket docket number CR-2020-83
FOR CLERK REFERENCE ONLY