State of Maine v. Gove

CourtSuperior Court of Maine
DecidedMay 27, 2003
DocketKENcr-02-380
StatusUnpublished

This text of State of Maine v. Gove (State of Maine v. Gove) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of Maine v. Gove, (Me. Super. Ct. 2003).

Opinion

STATE OF MAINE SUPERIOR COURT Hie CRIMINAL ACTION KENNEBEC, ss. REC'D & FILED DOCKET NO. CR-02-380 Nancy A De 5 fo _ > o je 5 a7 o we STATE OF MAINE MAY 27 2003 ris v. Clerk of oo unty DECISION ON MOTION Kennebec (MLR. Crim. P. 35) LEROY GOVE, Defendant

This matter came before the court

AUG 7% 2003

for hearing on the defendant’s motion for

reduction of sentence, as amended, pursuant to M.R. Crim. P. 35. On December 2, 2002,

defendant Gove changed his plea to all four counts of the indictment after the court's

inquiry pursuant to M.R. Crim. P. 11.

The governing sentences were on count I

(Operating a Motor Vehicle While Under the Influence — class C) and count II

(Operating After Revocation - class C). As

to count I, Gove was sentenced to 30 months

to the Department of Corrections. As to count II, Gove was sentenced to a term of five

years, consecutive to count I, all suspended and four years of probation. This was a

fully negotiated disposition arrived at by the parties.

Subsequent to the sentencing, Gove filed the present motion seeking to have a

resentencing.’ The legal basis for this motion is found in 17-A M.RS.A. § 1256(2) and

(4), which read, in part:

(2) [T]he court shall state in the sentence of imprisonment whether a sentence shall be served concurrently with or consecutively to any other sentence previously imposed or to another sentence imposed on the same date. The sentences shall be concurrent unless, in considering the following factors, the court decides to impose sentences consecutively.

1 oe : : : Gove’s original motion was for a reduction of his

sentence, but at the hearing on the amended motion,

his attorney indicated that he was now seeking to be resentenced, with the original sentence to act as a

cap on the new sentence. (4) If the court decides to impose consecutive sentences, it shall state its reasons for doing so on the record or in the sentence.

The statute goes on to list four different factors which the court must consider. The court has reviewed the transcript of the Rule 11 sentencing proceeding of December 2, 2002, and must agree with Gove that there was no formal mention of the four factors. The absence of discussion does not mean that the court did not consider the statutory factors in deciding whether to accept the recommended sentence, but that consideration

was unstated.

Gove seeks an entire resentencing proceeding as the result of what he sees to be the court’s failure to meet the statutory requirement. However, the Law Court has indicated that this is not necessary. In State v. Powers, 489 A.2d 4 (Me. 1985), that court considered a very similar situation in which the court sentenced Powers to serve a

consecutive sentence without stating his reasons therefor, as required by section 1256.

The Court stated:

The statute does not make explicit the consequences of a judge’s failure to meet the requirement of 17-A MLR.S.A. § 1256(4) by stating on the record his reasons for imposing a consecutive sentence. It is plain from the substance of that subsection (4), however, that its purpose is merely to assure convicted persons of a meaningful appeal by requiring that a proper record for appellate review be made by the sentencing court. If such a record is not initially made, the purpose of the statute is fully served by remanding to the Superior Court for a statement on the record of the sentencing judge’s reasons for making the sentence consecutive. Since the “statement of reasons” requirement of section 1256(4) is merely a matter of form in terms of its impact on the sentence itself, it may be met by the sentencing court without any need for a second full-blown sentencing proceeding if it was not originally complied with.

Id. at 6. In reaching this decision, the Laws Court distinguished its earlier decision in

Bennett v. State, 433 A.2d 431 (Me. 1981) for reasons which also distinguish it from the present case. Therefore, this court will answer Gove’s motion, and the court will set forth below its reasons for imposing a consecutive sentence.

First, counts I and II of the indictment arise out of the same activity of operating a motor vehicle, but they are separate and distinct crimes. Count I makes Gove’s operation of the motor vehicle a crime because of his physical condition at the time of the operation, i.e., his impairment from the use of alcohol. Count II makes his operation a crime because of his legal status at that time, ie., his right to operate had been revoked as the result of an earlier conviction.

‘Second, Gove was on probation from a District Court conviction at the time of the incident leading to the present convictions.

Third, Gove had a serious criminal history, specifically a history of operation motor vehicles while under the influence of intoxicants. This conviction was his seventh OUI conviction.

Fourth, it was important to have an adequate period of probation to allow substance abuse treatment and supervision and to promote public safety.

Last, but not least, Gove and his attorney had agreed with the attorney for the State that the sentences would be consecutive.

Having now stated its reasons for accepting the recommendation of consecutive sentences, as required by section 1256(4), the entry will be:

Motion DENIED.

Dated: May_2/ 2003 | ‘ up S. Kirk Studstrup Justice, Superior Court STATE OF MAINE SUPERIOR COURT vs KENNEBEC, ss.

LEROY E GOVE Docket No AUGSC-CR-2002-00380

BOX 353 TOWNHOUSE WHITEFIELD ME 04353 DOCKET RECORD

DOB: 12/10/1959

Attorney: DAVID PARIS State's Attorney: DAVID CROOK 72 FRONT STREET BATH ME 04530-2657 APPOINTED 02/05/2003

Filing Document: INDICTMENT Major Case Type: FELONY (CLASS A,B,C) Filing Date: 10/18/2002

Charge (s) 1 OPERATING UNDER THE INFLUENCE 10/01/2002 RANDOLPH 29-A 2411(1) Class Cc

2 OPERATING MOTOR VEHICLE AFTER REVOCATION 10/01/2002 RANDOLPH 29-A 2557(1) Class Cc

3 REFUSING TO SUBMIT TO ARREST OR DETENTION 10/01/2002 RANDOLPH

17-A 751-A(1) (B) Class D 4 FAILING TO STOP FOR OFFICER 10/01/2002 RANDOLPH 29-A 2414(2) Class E

Docket Events: 10/21/2002 FILING DOCUMENT - INDICTMENT FILED oN 10/18/2002 TRANSFER - BAIL AND PLEADING GRANTED ON 10/18/2002

TRANSFER - BAIL AND PLEADING REQUESTED ON 10/18/2002

10/22/2002 Charge(s): 1,2,3,4 HEARING - ARRAIGNMENT SCHEDULED FOR 10/31/2002 @ 8:30

L0/22/2002 Charge(s): 1,2,3,4 HEARING - ARRAIGNMENT NOTICE SENT ON 10/22/2002

DEFENDANT IS IN CUSTODY, NOTICE WAS SENT TO JAIL 10/23/2002 Charge(s): 1,2,3,4

MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 10/23/2002

0/25/2002 Charge(s): 1,2,3,4 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 10/24/2002 8 KIRK STUDSTRUP , JUSTICE COPY TO PARTIES/COUNSEL

Page 1 of 6 Printed on:

05/28/2003 10/31/2002

10/31/2002

12/12/2002

Charge(s): 1,2,3,4

HEARING - ARRAIGNMENT HELD ON 10/31/2002 S KIRK STUDSTRUP , JUSTICE

Attorney: ANDREWS CAMPBELL

DA: PAUL RUCHA Reporter: PHILIP GALUCKI

Defendant Present in Court

READING WAIVED. DEFENDANT INFORMED OF CHARGES. DEFENDANT. 21 DAYS TO FILE MOTIONS Charge(s): 1,2,3,4

PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 10/31/2002

S KIRK STUDSTRUP , JUSTICE Attorney: ANDREWS CAMPBELL

BAIL BOND - NO BAIL ALLOWED SET BY COURT ON 10/31/2002

HOLD WITHOUT BAIL. BAIL MAY BE REVIEWED.

HEARING - RULE 11 HEARING HELD ON 12/02/2002

S KIRK STUDSTRUP , JUSTICE

DA: ALAN KELLEY Reporter: DENNIS FORD Defendant Present in Court

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Related

Bennett v. State
433 A.2d 431 (Supreme Judicial Court of Maine, 1981)
State v. Powers
489 A.2d 4 (Supreme Judicial Court of Maine, 1985)

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State of Maine v. Gove, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-maine-v-gove-mesuperct-2003.