Mark I. Gessner v. State of Maine

2017 ME 139, 166 A.3d 980, 2017 WL 2773943, 2017 Me. LEXIS 142

• Court: Supreme Judicial Court of Maine
• Decided: June 27, 2017
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 139 Docket: Ken-16-407 Submitted On Briefs: May 25, 2017 Decided: June 27, 2017

Panel: SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, and HUMPHREY, JJ.

MARK I. GESSNER

v.

STATE OF MAINE

PER CURIAM

[¶1] Mark I. Gessner appeals from a judgment of the Superior Court

(Kennebec County, Marden, J.) denying his petition for release from the

Riverview Psychiatric Center. Gessner contends that the statute governing his

opportunity for release from institutional inpatient residency is

unconstitutionally vague as applied to him. We affirm the judgment.

[¶2] The record before us is sparse and does not contain any official

documentation regarding Gessner’s criminal history. Accordingly, we rely on

the court’s findings, supported by a Riverview institutional report, for our

summary of Gessner’s criminal history.

[¶3] Gessner was convicted of murder in 1995. While serving his

sentence for that crime, he pleaded guilty to an assault in 2000, he was 2

charged with assault on an officer and criminal mischief in 2004, and he was

charged with aggravated assault and trafficking in prison contraband in 2010.

In 2011, Gessner was found not criminally responsible by reason of insanity

for the 2010 charges, see 17-A M.R.S. § 39 (2016), and the court (Hjelm, J.)

committed him to the custody of the Commissioner of Health and Human

Services, see 15 M.R.S. § 103 (2011).1

[¶4] Gessner was ultimately transferred to Riverview on February 20,

2016, as a result of that commitment.2 He filed a petition for release one

month after he arrived at Riverview, on March 21, 2016. As amended,

Gessner’s petition requested full or modified release.

[¶5] The court (Marden, J.) held an evidentiary hearing on Gessner’s

petition for release in July 2016. Based on the evidence presented, the court

found that Gessner has been diagnosed with multiple mental illnesses since

1 We cite the 2011 version of section 103 because the statute has been amended since that time.

See P.L. 2013, ch. 424, § B-3 (effective July 16, 2013) (codified at 15 M.R.S. § 103 (2016)); P.L. 2011, ch. 542, § A-10 (effective Mar. 20, 2012).

2 Effective October 9, 2013, the Legislature clarified the law to provide that a person serving a

term of imprisonment who is found not criminally responsible by reason of insanity “must first serve the undischarged term of imprisonment or the unsuspended portion of the split sentence before commencing the commitment.” 15 M.R.S. § 103-A(2) (2016); see P.L. 2013, ch. 265, § 4. Gessner was found not criminally responsible in 2011, before this statute took effect. Although the transfer may have occurred at the end of his sentence, it appears unlikely that Gessner would have received the maximum “good time” calculation, and there is nothing in the record that explains why his transfer to Riverview occurred five years after the entry of the commitment order and twenty-two years into his thirty-year murder sentence. 3

1993, including reactive psychosis, depression with psychotic features,

schizophrenia, auditory hallucinations, and delusional ideation. He has a

history of refusing medication, both in prison and at Riverview, and does not

consider himself to be mentally ill. In the brief period that he has been at

Riverview, Gessner has not participated in the counseling recommended by

his primary provider, he yells loudly and angrily, and he swears and slams

doors.

[¶6] Faced with very little evidence of any improvement in Gessner’s

illness and with evidence of Gessner’s own resistance to treatment after

twenty-two years in a prison environment, the court was not persuaded that

the Riverview staff would be fully capable of supervising Gessner in a

transition into the community. The court found that Gessner had not met his

burden to establish that it was highly probable that he could be released,

either fully or on a modified basis, without likelihood that he would cause

injury to himself or others due to mental disease or mental defect. See

15 M.R.S. § 104-A(1), (2), (3) (2016); Beal v. State, 2016 ME 169, ¶ 5, 151 A.3d

502; see generally Green v. Comm’r of Mental Health & Mental Retardation,

2000 ME 92, 750 A.2d 1265. 4

[¶7] Gessner timely appealed from the judgment, arguing only that the

statute governing release, 15 M.R.S. § 104-A (2016), was unconstitutionally

vague. See 15 M.R.S. § 2115 (2016); M.R. App. P. 2. Because Gessner did not

raise the vagueness issue to the trial court, we review for obvious error, which

requires a showing “that there is (1) an error, (2) that is plain, and (3) that

affects substantial rights. Even if these three conditions are met, we will set

aside a [judgment] only if we conclude that (4) the error seriously affects the

fairness and integrity or public reputation of judicial proceedings.” State v.

Sexton, 2017 ME 65, ¶ 36, --- A.3d --- (citation omitted) (quotation marks

omitted); see State v. Preston, 2011 ME 98, ¶ 7, 26 A.3d 850.

[¶8] We test Gessner’s vagueness challenge “in the circumstances of the

individual case and considering whether the statutory language was

sufficiently clear” to give him adequate notice of the requisites for his release.

State v. Reckards, 2015 ME 31, ¶ 4, 113 A.3d 589 (quotation marks omitted).

Section 104-A requires consideration of whether “the person may be released

or discharged without likelihood that the person will cause injury to that

person or to others due to mental disease or mental defect.” 15 M.R.S.

§ 104-A(1). 5

[¶9] We are not persuaded, on this record, that the statutory language

is unconstitutionally vague. The trial court’s judgment provided Gessner with

an explanation of how he failed to satisfy the statutory requirements—

specifically, the court found that Gessner has not acknowledged his mental

illness or participated meaningfully in treatment, as advised by his primary

care provider, to address his explosiveness and adjust to life outside of prison.

Considering Gessner’s history of mental illness and violence, and his refusal to

acknowledge his mental illness or to participate in treatment, the statute’s

terms are not vague for purposes of addressing the individual circumstances

at issue here. See Reckards, 2015 ME 31, ¶ 4, 113 A.3d 589. Gessner has not

met his burden of demonstrating that the court committed obvious error. See

Dorr v. Woodard, 2016 ME 79, ¶ 7, 140 A.3d 467 (explaining that the burden is

on the person challenging the constitutionality of a statute to establish its

infirmity).

The entry is:

Judgment affirmed.

Rory A. McNamara, Esq., Drake Law, LLC, Berwick, for appellant Mark I. Gessner

Maeghan Maloney, District Attorney, Carie James, Asst. Dist. Atty., and Mary- Ann Letourneau, Stud. Atty., Prosecutorial District IV, Augusta, for appellee State of Maine

Kennebec County Superior Court docket number CR-2016-60 FOR CLERK REFERENCE ONLY