Miller v. State of Maine
Opinion
STATE OF MAINE pec... SUPERIOR COURT
CRIMINAL ACTION KENNEBEC; ss. bo ne DOCKET NO. 00-962 SDH KEN ~ & Fone AARON MILLER, SEE Petitioner v. DONALD G RE ISCHT = ORDER ON MOTION TO IBRARY DISMISS PETITION FOR STATE OF MAINE, POST-CONVICTION REVIEW MAR 31 2003 Respondent
This matter is before the court on respondent’s motion to dismiss the petition for post-conviction review. Subsequent to the filing of the motion, the petitioner, through counsel, was given the opportunity to file an amended petition which alleges three bases for characterizing an illegal sentence. First, the petitioner, while admitting the theft, asserts that the value of the property stolen, in consideration of depreciation, was no more than $9,800. Petitioner argues that he was not given an opportunity to prove the actual value of the property stolen. Secondly, based upon that assertion of value, the restitution award becomes excessive. The third ground is that the court ordered the petitioner to pay the entire restitution within the first 40 months of probation without a specific repayment plan and without regard to his ability to pay.
The respondent in its motion points out that the defendant pled guilty to a class B theft on January 27, 1999. In August of 1998 and January of 1999, 17-A M.R‘S.A.
§ 362(2)(A) provides theft is a class B crime if the value of the property or services exceeds $10,000.
At the Rule 11 proceeding occurring on January 27, 1999, the court instructed the
petitioner as follows:
Count II is a class B theft. In order to prove you guilty of that, the State
would have to prove the following elements. That you obtained or
exercised unauthorized control over property of Dead River Company, in _ other words, you took this property, you got control of it, and no one had
told you that you were the authority to do so, specifically cigarettes and
other tobacco products, a Tidell safe, and I have to admit I don’t know a
Tidell safe as opposed to any other kind, maybe we'll find out, customer
checks, cash, and the State would have to prove that the total value was in
excess of $10,000 because of the classification.
Now, Mr. Miller, do you understand the elements of the offenses? In
other words, what the State would have to prove and do you understand
what the maximum sentence could be for these charges?
A. 1 do understand.
Later, in the proceeding, the court asked petitioner's counsel if he was satisfied that the State would be able to prove the material elements of the offenses that were charged. In his response, counsel suggested that there might be some issues of valuation which could be taken care of at time of sentencing. His final remarks in that regard were:
We get down close to the $10,000 line and I think it could fall either way at
trial. We are not planning or intending to go to trial on that issue. I think
those can be adequately considered at the time of sentencing.
Under law that existed at that time, further provisions of 17-A M.R.S.A. § 362(3)(A) state that theft is a class C crime if the value of the property or services is more than $2,000 but not more than $10,000. By his plea to a class B theft and the acceptance of that plea by the court, the defendant has unequivocally admitted that the value of the property stolen was at least $10,000. That having been established, as a matter of law, he has no basis to complain of an order of restitution in excess of $10,000.
At Mr. Miller’s sentencing on April 30, 1999, the State’s attorney explained the
basis for his belief that damages to the victim, the Food Trend store, was in excess of
$20,000. This was broken down and presented to the court as follows:
Cigarettes $2,600.00
Cash $6,258.68 Food Stamps and Checks $ 223.57 Tiddel safe $2,500.00 Total $11,466.25 Stolen Missing by Food Trend $5,000.00 after reporting to police
Cost of repairing ATM $3,600.00 Damages to premises $1,000.00 Recovered
Cash $2,100.00 Cigarettes About a third
The State asked for restitution in the amount of $17,000.
The State presented a witness to provide evidence of uncharged criminal conduct as an aggravating factor for the petitioner’s sentence. In response, the defendant took the stand, and testified, under oath, as to the uncharged criminal conduct. This testimony came after the State had requested restitution in the amount of $17,000 with substantiating figures. The defendant was given an opportunity to present his position with regard to sentencing and did take advantage of an opportunity to address the court. When the court announced the sentence, he misspoke and suggested the class B offense required a minimum of $20,000. He was corrected by the District Attorney with no comment by defense counsel. At the conclusion of the announcement of the sentence, defense counsel was asked if he had anything further. The response was to ask for the probation supervision fee which was established by the court. The court had previously waived the victim compensation surcharge by saying, “...in light of the substantial direct restitution that’s being paid, I will waive those payments.” Sentencing Transcript. p. 80. Given full opportunity to present evidence or at least an argument as to the value of the goods subject to the theft, the defendant waived such
presentation by making no presentation.
The petitioner did not complain at the time of sentencing of the order to pay the entire restitution within the first 40 months of probation. The court is not aware of any legal requirement that a specific repayment plan must be made. In State v. Berube, 968 A.2d 509, it says that unless a court has evidence before it sufficient to support a finding that a restitution order would create a excessive financial hardship, it is authorized to impose restitution, in whole or in part, as compensation for economic loss. It is the burden of the State to produce evidence as to the extent of the loss and to prove by a preponderance of the evidence the causal connection between the loss and the offender’s conduct. However. it is the burden of the defendant to produce evidence about any excessive financial hardship created by a restitution order. In the present case, there is a restitution order with a time for payment. The defendant was given an opportunity to assert his financial ability to pay such restitution and, in fact, asserted in his sentencing memorandum his ability to pay.
Mr. Miller is a talented carpenter and is fully capable of learning a good
living in that field. His Penobscot Bay Schooners, crafted at the Maine
State Prison, sold well and for high prices at the prison store and are
certainly of commercial quality. Primarily through these sales, Mr. Miller
has managed to pay nearly $8,000 of the total of $10,000 restitution
ordered in 1991.
Defendant’s Sentencing Memorandum, April 30, 1999, p. 2.
Mr. Miller is prepared to pay restitution and has demonstrated his
willingness to do so by the substantial payment he has already made
towards the 1991 restitution order. The amount set as the cap as restitution should, in fairness, be calculated based on the actual value of
the safe, the actual tobacco products taken, and the recovery of large
amounts of both money and cigarettes.
Defendant’s Sentencing Memorandum, April 30, 1999, p. 12.
The entry will be:
Respondent's motion to dismiss petition is GRANTED.
Dated: March ¢? _, 2003
Donald H. Marden Justice, Superior Court
AARON MILLER SUPERIOR COURT vs KENNEBEC, ss. STATE OF MAINE Docket No AUGSC-CR-2000-00061
DOCKET RECORD
PL. DOB: 12/17/1956 PL. ATTY: RANDY ROBINSON State's Attorney: DAVID CROOK CAMPBELL LAW OFFICE 45 KALERS CORNER ROAD WALDOBORO ME 04572 APPOINTED 09/27/2002
Piling Document: PETITION Major Case Type: POST CONVICTION REVIEW Filing Date: 03/02/2000
Charge (s)
Docket Events:
03/07/2000 FILING DOCUMENT - PETITION FILED ON 03/02/2000 03/07/2000 JUDICIAL - REVIEW SENT FOR REVIEW ON 03/07/2000
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