State of Maine v. Walter A. Parker , 156 A.3d 118 ( 2017 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 28 Docket: SRP-15-628
Argued: October 27, 2016
Decided: February 14, 2017
Panel: SAUFLEY C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
WALTER A. PARKER
ALEXANDER, J.
[¶1] Walter A. Parker appeals the sentence imposed on him by the trial
court (Cumberland County, Warren, J.) following a resentencing hearing. The
sentence was imposed following Parker’s plea of guilty to three counts of
gross sexual assault (Class A), 17-A M.R.S. § 253(1)(C) (2016), and two counts
of unlawful sexual contact (Class B), 17-A M.R.S. § 255-A(1)(E-1) (2016). All
charges involved sexual assaults on a nine-year-old girl over an extended
period of time. The court ultimately sentenced Parker to a twenty-year term
of imprisonment followed by fifteen years of supervised release, in
accordance with 17-A M.R.S § 1231(2)(C) (2016) and 17-A M.R.S. § 1252(4-E)
(2016).
2
[¶2] Parker contends that the supervised release sentencing, mandated
by law, is unconstitutional, as a violation of the due process clause, because it
“punishes [the] defendant for his status and particular characteristics, and not
for substantive criminal conduct”; and as a violation of the double jeopardy
clause because it “may incarcerate [the] defendant twice based upon his
substantive criminal conduct and not for his status and particular
characteristics.” Parker also contends that imposition of a mandatory term of
supervised release resulted in a sentence to “more prison time than under a
traditional Hewey1 analysis.” We affirm the sentence.
I. CASE HISTORY
[¶3] The sentencing court found the following facts, which are
supported by the record. Prior to the events leading to this appeal, Parker had
a “lengthy criminal history” including “a few felonies and a lot of
misdemeanors.” The prior felonies included burglary, criminal threatening
with a dangerous weapon, and operating a motor vehicle in violation of the
habitual offender law. Parker’s probations on his prior sentences had been
“violated on numerous occasions.”
1 State v. Hewey, 622 A.2d 1151, 1154-1155 (Me. 1993), incorporated into the sentencing statute
at 17-A M.R.S. § 1252-C (2016).
3
[¶4] The court further found that Parker had sexually assaulted the
nine-year-old victim on several occasions over an extended period of time,
and that Parker was in a position of trust in the household and acted as a
parental figure to the victim.
[¶5] As a result of this conduct, Parker was indicted on two counts of
unlawful sexual contact (Class B) 17-A M.R.S. § 255-A(1)(E-1) and three
counts of gross sexual assault (Class A) 17-A M.R.S. § 253(1)(C), all involving a
victim under twelve years of age.
[¶6] On July 13, 2015, Parker pleaded guilty to all five counts in the
indictment. The court (Clifford, J.) accepted the plea of guilty, and continued
the matter for sentencing before any judge.
[¶7] Parker appeared before the court (Warren, J.) for sentencing on
November 20, 2015. At the sentencing hearing, the State outlined the facts of
Parker’s sexual violence against the victim, which had occurred over the
course of more than one year. During the first sentencing hearing, the State
and Parker argued for different sentences, but each argued for a sentence that
would include a significant underlying sentence, with part of the underlying
sentence suspended and Parker being placed on probation for a significant
period of time following release from imprisonment.
4
[¶8] For a gross sexual assault committed against a person under
twelve years of age, the basic term of imprisonment to begin the analysis
required by 17-A M.R.S. § 1252-C (2016) is set at “a term of at least 20 years.”
17-A M.R.S. § 1252(4-E) (2016). As a result, the court, in calculating the basic
term of imprisonment pursuant to section 1252(4-E) and step one of its
section 1252-C analysis, began with the mandated basic term of imprisonment
of twenty years. The court stated that Parker was a parental figure in the
household and that the frequency of the sexual violence was a sentence
aggravating factor, particularly because it was committed against a nine-year-
old. The court concluded that this conduct raised the basic sentence to
twenty-two years.
[¶9] In step two of its section 1252-C analysis, the court addressed the
aggravating and mitigating factors. The court found that the victim impact
was significant in that she was continuously subjected to this conduct and had
been afraid to tell anyone until a few years after the sexual assaults stopped.
The court also found that Parker’s lengthy criminal history and repeated
violations of probation were aggravating factors. Addressing mitigating
factors, the court stated that Parker had accepted responsibility from the very
beginning. In doing so, he avoided a trial, and the victim would not be put
5
through that “extraordinarily unpleasant” experience. The final mitigating
factor the court found was that Parker wants help and counseling, and
understands that he presents a public safety issue. The court noted that the
aggravating and mitigating factors were “in exact equipoise” and therefore
determined that the maximum period of incarceration was twenty-two years.
[¶10] At step three of the section 1252-C analysis, and addressing the
issue of probation, the court noted, based on Parker’s psychological
evaluation, that Parker was in need of “not just treatment but supervision,
given that he is at risk of reoffending.” As a result, the court determined that
all but fourteen years of Parker’s term of imprisonment would be suspended
with an eighteen-year probation period to follow.
[¶11] Parker’s ultimate sentence was twenty-two years’ imprisonment,
with all but fourteen years suspended, and probation for eighteen years. This
sentence contemplated at least thirty-two years of State supervision through
incarceration or probation.
[¶12] Four days later, on November 24, 2015, the court issued an order
for resentencing. The order stated that after reviewing the relevant statutes
and State v. Cook, 2011 ME 94, 26 A.3d 834, the court realized that the
sentence it had imposed was not authorized by law. On its own motion,
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pursuant to M.R.U. Crim. P. 35(a), the court ordered a further hearing for
resentencing.
[¶13] The resentencing hearing was held on December 15, 2015. At the
outset, the court acknowledged that it had imposed an unauthorized sentence
by including a term of probation, because when a defendant is sentenced for
gross sexual assault of a child under the age of twelve pursuant to 17-A M.R.S.
§ 253(1)(C)—as was the case here—probation is not available, and
supervised release must be imposed. For gross sexual assault of a child under
the age of twelve, 17-A M.R.S. § 1231(1-A) (2016) requires that:
Notwithstanding subsection 1, the court shall impose as part of
the sentence a requirement that a defendant convicted of violating
section 253, subsection 1, paragraph C be placed on a period of
supervised release after imprisonment. The period of supervised
release commences on the date the person is released from
confinement pursuant to section 1254 and must include the best
available monitoring technology for the duration of the period of
supervised release.
[¶14] Subsection 1-A in effect bars a probation alternative that is
provided in 17-A M.R.S. § 1231(1) (2016), and requires, instead, “a period of
supervised release” to commence immediately upon release from
confinement and to include utilization of “the best available monitoring
technology.” The requirement for imposition of “a period of supervised
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release” following release from imprisonment is repeated in 17-A M.R.S.
§ 1252(4-E), which states:
If the State pleads and proves that a crime under section 253 was
committed against a person who had not yet attained 12 years of
age, the court, notwithstanding subsection 2, shall impose a
definite term of imprisonment for any term of years. In
determining the basic term of imprisonment as the first step in
the sentencing process, the court shall select a term of at least
20 years. The court shall also impose as part of the sentence a
period of supervised release to immediately follow that definite
term of imprisonment as mandated by section 1231.
[¶15] Subsection 4-E, by exempting sentencing for gross sexual assault
upon a child under age twelve from the thirty-year maximum sentence for
Class A crimes specified in section 1252(2), authorizes a “definite” sentence of
imprisonment for “any term of years.” Subsection 4-E also requires that the
basic term of imprisonment to begin the section 1252-C sentencing analysis
be at least twenty years and requires imposition of “a period of supervised
release” to immediately follow release from imprisonment.2
2 Title 17-A M.R.S. § 1231(2)(C) (2016) states that the authorized period of supervised release is
“[l]ife for a person sentenced under section 1252, subsection 4-E.” The parties and the trial court,
in addressing resentencing, appeared to infer that the references in 17-A M.R.S. §§ 1231(1-A) and
1252(4-E) (2016) to “a period of supervised release” allowed some matter of choice in the length of
the period of supervised release to be imposed. To the extent that the reference section 1231(2)(C)
is ambiguous, the rule of lenity authorizes resolution of ambiguities in favor of the more lenient
sentencing choice. State v. Harrell, 2012 ME 82, ¶ 5, 45 A.3d 732; State v. Stevens, 2007 ME 5, ¶ 5,
912 A.2d 1229.
8
[¶16] In redetermining the basic term of imprisonment under the first
step of its statutory analysis, the court stated that it was “handcuffed by the
statute in terms of what sentence should be given,” and that it was
“constrained by the sentencing statutes to arrive at a sentence that is different
from the one . . . [it] previously imposed.” Nonetheless, the court stated that it
was starting with the statutorily mandated basic term of at least twenty years,
and that for the same reasons it had found at the initial sentencing hearing,
that number was increased to twenty-two years.
[¶17] Addressing the aggravating and mitigating factors under step two
of the statutory analysis, the court referred to its findings at the November
sentencing hearing. It found that the aggravating factors were the impact on
the victim and Parker’s lengthy criminal history. For mitigating factors, the
court found the early acceptance of responsibility and the desire for
treatment. The court again noted that the aggravating and mitigating factors
“basically were in equipoise” and that it would adhere to the determination
that it had made in the November hearing. The court then stated that it was
“discomforted by the fact that [it] was imposing a 22 year sentence where in
the past [it] was imposing a 22 all but 14-year sentence.” With no “escape
clause” and unable to use probation to lower the basic twenty-two-year term
9
of imprisonment, the court reevaluated the aggravating and mitigating factors,
finding that it had placed too much weight on Parker’s evasiveness and not
enough weight on his ultimate acceptance of responsibility. Finding that the
mitigating factors outweighed the aggravating factors “slightly,” the court
reduced the sentence to twenty years.
[¶18] Where the court would typically engage in the third step of the
statutory analysis, it acknowledged that pursuant to 17-A M.R.S. § 1231(2)(C),
17-A M.R.S. § 1252(4-E), and our holding in Cook, it instead had to determine a
period of supervised release to impose following Parker’s term of
imprisonment. In making such a determination, the court stated that it must
consider the purposes of sentencing listed in 17-A M.R.S. § 1151 (2016) and
the factors addressed in section 1252-C(2). Reviewing section 1151, the court
noted that the “purpose of supervised release would focus on rehabilitation as
opposed to deterrence.” After discussing the factors listed in sections 1151
and 1252-C(2), and in accordance with the analysis stated in Cook, the court
determined that a fifteen-year period of supervised release was appropriate.
The court then set supervised release conditions prohibiting contact with the
victim or her family, being in places where children congregate, and use and
10
possession of pornography; and requiring monitoring, sex offender treatment,
and that Parker live at a residence approved by probation.
[¶19] Parker filed a timely application to permit the appeal of his
sentence. M.R. App. P. 2(b)(2)(A), 20. The Sentence Review Panel granted the
application to appeal the sentence, and the appeal is properly before us
pursuant to M.R. App. P. 2, 20(g), (h).
II. LEGAL ANALYSIS
A. Due Process.
[¶20] Parker argues that the supervised release sentencing scheme,
17-A M.R.S. § 1231(2)(C), violates his due process rights because it punishes
him for his status and characteristics, and not his substantive criminal
conduct. He asserts that the statutory scheme targets a distinct class of
persons, violent sex offenders, for open-ended sanctions of incarceration,
which, he asserts, exceeds the bounds of criminal sentencing and implicates
due process concerns.
[¶21] Parker’s actual complaint focuses not on his status or
characteristics—such as gender, age, race, or economic status—but on the
application of statutory requirements aggravating his sentence because of the
nature of his crime, gross sexual assault, and the age of his victim, under age
11
twelve. These statutory aggravating factors direct that any adult convicted of
committing gross sexual assault upon a child under age twelve face a definite
term of imprisonment of at least twenty years, to be immediately followed by
a period of supervised release. The combination of imprisonment and
supervised release, which, if conditions are violated, may result in further
imprisonment, can, under the law, extend for a convicted person’s life.
[¶22] As applied to Parker, the trial judge’s statement at resentencing
indicated that the court contemplated that Parker’s maximum time in State
custody or supervision could be limited to thirty-five years: twenty years’
imprisonment and fifteen years of supervised release which can lead to
imprisonment if release conditions are violated. However, the court also
understood the possibility that Parker’s maximum time in State custody or
supervision could approach fifty years.3
3
Title 17-A M.R.S. § 1231(6) (2016), addressing possible revocation of a period of supervised
release, directs that
[i]f the court revokes a period of supervised release, the court shall require the
person to serve time in prison under the custody of the Department of Corrections.
This time in prison may equal all or part of the period of supervised release, without
credit for time served on post-release supervision. The remaining portion of the
period of supervised release that is not required to be served in prison, if any, may
not run during the time in prison and must resume again after the person’s release
and is subject to revocation at a later date.
Because, as the trial judge referenced, a person serving time in prison following a revocation of
a period of supervised release may not receive credit for the time served on supervised release, and
any remaining time on supervised release may not run during time in prison and must resume after
12
[¶23] In addressing a claim that factors considered at sentencing
violated a defendant’s due process rights, we have held that courts are
accorded wide discretion in the sources and types of information that may be
relied upon at sentencing. State v. Bennett, 2015 ME 46, ¶ 22, 114 A.3d 994;
State v. Farnham, 479 A.2d 887, 890 (Me. 1984). The court’s considerations
“are limited only by the due process requirement that such information must
be factually reliable and relevant.” Bennett, 2015 ME 46, ¶ 22, 114 A.3d 994 (quoting State v. Grindle, 2008 ME 38, ¶ 18, 942 A.2d 673).
[¶24] “Federal cases have interpreted the due process clause as
requiring a defendant ‘not to be sentenced on false information . . . [and]
requir[ing] that the defendant be given an adequate opportunity to refute
information relied on at sentencing.’” Bennett, 2015 ME 46, ¶ 23, 114 A.3d 994 (quoting United States v. Wilfred Am. Educ. Corp., 953 F.2d 717, 722 (1st Cir.
1992) (citation omitted)).
[¶25] Here, there is no claim that Parker was sentenced based on false
or inadequate information. Other than complaints about sentencing based on
a release from prison, Parker’s maximum period in State custody or supervision could be
approximately fifty years.
We express no opinion on whether an application of the supervised release law that resulted in
a time in State supervision considerably longer than that might present a constitutional
proportionality issue.
13
his “status” or “characteristics,” Parker has identified no process that he was
due and of which he has been deprived. His due process argument really
appears to address the length of his total sentence, assuming his prospective
compliance with the conditions of his supervised release, which is a
constitutional proportionality claim.
[¶26] The Eighth Amendment to the United States Constitution
provides that “[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend.
VIII. Article 1, section 9 of the Maine Constitution explicitly provides that “all
penalties and punishments shall be proportioned to the offense.” Me. Const.
art. I, § 9. In Bennett, 2015 ME 46, ¶ 15, 114 A.3d 994, we observed that “only
the most extreme punishment decided upon by the Legislature as appropriate
for an offense could so offend or shock the collective conscience of the people
of Maine as to be unconstitutionally disproportionate, or cruel and unusual.”
(quoting State v. Ward, 2011 ME 74, ¶ 18, 21 A.3d 1033 (alterations omitted)).
[¶27] We have approved prison sentences of sixty-five years and forty
years in cases where the facts indicated multiple sexual assaults committed
against minors. See, e.g., State v. Sweet, 2000 ME 14, 745 A.2d 368. As applied
in this case, the sentences for multiple Class A gross sexual assaults
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committed on a nine-year-old victim—twenty years’ imprisonment followed
by fifteen years of supervised release with the possibility of fifteen years in
prison for violation of supervised release—are not constitutionally
disproportionate and are not cruel or unusual punishment. See Cook,
2011 ME 94, ¶ 19 n.9, 26 A.3d 834 (addressing sentencing for gross sexual
assault committed on minors under the age of twelve and noting that a term of
supervised release may be appropriate, even if the combination of the term of
imprisonment and the term of supervised release exceed the statutory
maximum sentence for the crime).
B. Double Jeopardy
[¶28] Parker also argues that the supervised release sentencing
process, 17-A M.R.S. § 1231(2)(C), violates the Double Jeopardy Clause
because it seeks to punish him twice for the same conduct. He further alleges
that the imposition of supervised release is punitive in nature, and not civil or
regulatory.
[¶29] The Double Jeopardy Clauses of the United States Constitution
and Maine Constitution protect a criminal defendant from a second
prosecution for the same offense after a conviction, and from multiple
punishments for the same offense. State v. Savard, 659 A.2d 1265, 1266
15
(Me. 1995). To prevail on his double jeopardy claim, Parker must
demonstrate that the term of supervised release punishes him twice for the
same offense, or was imposed as the result of a separate proceeding but based
on the same conduct. Id. Parker argues that he is subject to punishment in
two different proceedings—the sentencing hearing, and, should it happen, the
supervised release revocation hearing. Because any sanction resulting from
violation of supervised release, like any sanction for a violation of probation,
is based on violation of the conditions imposed, and not the substantive
criminal conduct that led to the imposition of supervised release, double
jeopardy concerns are not implicated.
[¶30] The nature of supervised release and imposition of supervised
release as part of the original sentencing process were addressed in detail in
Cook, 2011 ME 94, ¶¶ 21-30, 26 A.3d 834. “[A]lthough incarceration following
the revocation of a term of supervised release is punishment, it punishes a
defendant’s failure to abide by conditions of release imposed by the court and
the resulting breach of trust, not a defendant’s original, or new, criminal
conduct.” Id. ¶ 26. Parker’s double jeopardy claim fails.
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C. Three-Step Sentencing Analysis
[¶31] Parker asserts that the supervised release statutory scheme
abrogates the typical Hewey analysis, by mandating “at least 20 years” as the
first step and completely removing step three by eliminating probation and
mandating supervised release, and that as a result he was sentenced to more
prison time than he would have been under a traditional Hewey analysis. As a
result, Parker contends, he was denied a meaningful proportionality review.
[¶32] A sentencing court typically engages in a three-step process when
imposing a sentence that will include time in prison: (1) it determines a basic
period of incarceration, which is set solely by reference to the offender’s
criminal conduct and the nature and seriousness of the offense; (2) in order to
individualize each sentence and set the maximum term, the court next
considers aggravating and mitigating factors that will either reduce, enhance,
or have no effect on the maximum sentence; and (3) once the sentencing court
has determined the maximum period of incarceration, it may suspend a
portion of that period and supplement it with a period of probation. 17-A
M.R.S. § 1252-C; State v. Hewey, 622 A.2d 1151, 1154-55 (Me. 1993).
[¶33] In determining the length and conditions of supervised release,
we have recognized that the usual three-step analysis cannot apply because
17
the court is barred from suspending any portion of the sentence of
imprisonment and is instead required to impose a period of supervised
release. Cook, 2011 ME 94, ¶ 21, 26 A.3d 834. With that limitation, we have
instructed the sentencing court to “consider statutory sentencing factors
appropriate to its primary purpose of supervision and rehabilitation” after
which it may “impose any conditions of supervised release authorized by
17-A M.R.S. § 1232 that it deems reasonable and appropriate.” Id. ¶ 29. [¶34] Here, the court did not misapply the law in setting a twenty-year
basic term of imprisonment, as the basic term was statutorily mandated. State
v. Holland, 2012 ME 2, ¶ 38, 34 A.3d 1130 (noting that our review of the first
step is de novo, for misapplication of the law); 17-A M.R.S. § 1252(4-E). The
court’s discussion of the second step reveals no abuse of discretion in setting
the twenty-year maximum sentence, two years less than the original
determination made by the court, after reevaluating the aggravating and
mitigating factors. Cook, 2011 ME 94, ¶ 8, 26 A.3d 834 (observing that our
review at step two is for an abuse of discretion). Because it recognized that its
original sentence was affected by an error of law, the court’s original analysis
did not bind the court and prevent it from changing its analysis of the
discretionary choices it was making.
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[¶35] In imposing supervised release, the sentencing court followed the
analysis we required in Cook, considered the factors set forth in section 1151
and 1252-C(2), and imposed conditions authorized by section 1232. Id. ¶ 29. The sentencing court properly engaged in the analysis required for imposing a
sentence that included supervised release, and the resulting sentence does not
reflect any misapplication of principle or error of law.
The entry is:
Judgment affirmed.
Merritt T. Heminway, Esq. (orally), H&H LawCenter, P.A., Portland, for
appellant Walter A. Parker
Stephanie Anderson, District Attorney, and Meghan E. Connelly, Asst. Dist.
Atty. (orally), and Trevor Savage, Stud. Atty., District Attorney’s Office,
Portland, for appellee State of Maine
Lawrence C. Winger, Esq., amicus curiae pro se
Cumberland County Unified Criminal Docket docket number CR-2015-723
FOR CLERK REFERENCE ONLY