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STATE OF MAINE SUPERIOR COURT WASHINGTON, ss DOCKET NO.: MACSC-CR-2012-76
STATE OF MAINE
V. SENTENCING ORDER
FORREST SAPIEL
Defendant
This matter is before the Court for sentencing following Forrest Sapiel's plea
of guilty and conviction on nineteen counts of possession of sexually explicit
materials (Class C), 17-A M.R.S. § 284(l)(C) (2012). The elements of the charge
relevant to Sapiel' s case are that he possessed on his computer images of persons,
under the age of twelve years, engaging in sexually explicit conduct and that Sapiel
knew or had reason to know that the person or persons depicted in the images were
under twelve years of age.
Based on his plea, Sapiel has been convicted of nineteen counts of
possession of sexually explicit material out of twenty-four counts stated in an
indictment returned by the Washington County grand jury on March 11, 2013. The
pleas were entered on Counts 3 through 11, and 14 through 23. All of the counts
of the indictment are based on images found on Sapiel' s personal computer that
was seized from his home on April 26, 2012. All counts are identically worded
) 2
except for reference to the electronic file number of the video depiction of young
children engaging in sexually explicit conduct identified in each count.
According to information provided at the Rule 11 plea proceeding on
July 24, 2013, Sapiel's computer came to the attention of the prosecution as a
result of information conveyed from a national computer traffic-monitoring source
to the Maine State Police. That information indicated that there appeared to be a
large amount of traffic from a file sharing program or network known to transmit
images depicting children engaging in sexually explicit conduct to a computer
address ultimately identified as belonging to Sapiel. 1 The images possessed by
Sapiel were apparently made available for download, without cost, to anyone who
accessed the file sharing program or network.
There is no indication that Sapiel played any role in creating the child
pornography images, compare State v. Bailey, 2012 ME 55, 41 A.3d 535, or paid
for them, or distributed the images to anyone else, compare United States v.
Cameron, 699 F .3d 621, 630-31 (1st Cir. 2012), or used the images in attempts to
induce others to engage in sexualized conduct, compare United States v. Brand,
467 F.3d 179, 203 (2d Cir. 2006). Nor is there any indication that Sapiel has
engaged in sexual improprieties with young children, compare Bailey. Such
1 Offenders in the prosecutions addressed in United States v. Cameron, 699 F.3d 621 (1st Cir. 2012) and State v. Bailey, 2012 Me 55, 41 A.3d 535 were each originally identified in a similar manner, though each offender was ultimately convicted of crimes more serious than possession of child pornography. ) 3
aggravating factors, had they occurred, would rightly support higher sentences for
possession of images depicting children engaging in sexually explicit conduct.
Sapiel's crime has none of these aggravating factors and is, essentially,
downloading to his computer and apparently viewing video depictions of young
children engaged in sexually explicit conduct. For that conduct, Sapiel has
accepted responsibility by entering his guilty plea.
For downloading and viewing these images, and retaining them on his
computer in violation of 17-A M.R.S. § 284(1)(C), the State is recommending a
sentence, by consecutive sentencing, of sixteen years to the Department of
Corrections, with all but six years suspended, to be followed by twelve years'
probation. The State is also recommending that Sapiel be required to register as a
sex offender. Because the crime was committed prior to January 1, 2013, the sex
offender registration portion of the sentence will be imposed pursuant to 34-A
M.R.S. §§ 11201 - 11228 (2012). A person "who commits criminal conduct and is
sentenced" in Maine on or after January 1, 2013 is subject to sex offender
registration requirements stated in 34-A M.R.S. §§ 11271 - 11289 (2012).
The recommended sixteen year underlying sentence is identical to the time
of actual incarceration originally imposed in Cameron, 699 F.3d at 635. At the
Rule 11 proceeding, Sapiel agreed that the length of the underlying sentence and
the length of the probationary period may be achieved by consecutive sentencing, ) 4
using a few of the counts of the indictment as primary counts to achieve the
sentencing goals. See State v. Downs, 2009 ME 3, 114, 962 A.2d 950.
The portions of the sentence that are contested are (i) the State's
recommended sentence of six years' incarceration to the Department of
Corrections; (ii) the recommended sixteen year underlying sentence; and (iii) the
State's request that Sapiel be required to register as a sex offender for life rather
than the ten-year registration alternative.
For this sentencing proceeding, Sapiel presents as an individual who, the
State represents, has two driving offenses in 2008 for which he paid fines, but no
other criminal convictions and no record of any improper conduct or actions with
children under the age of eighteen or other involvement with the criminal justice
system.
This is the background for the sentencing to be imposed in this case. With
the background established, the Court must proceed to determine the appropriate
sentence, following the analytical process stated in 17-A M.R.S. § 1252-C (2012).
To determine the appropriate sentence, the Court must first determine the basic
term of imprisonment for the crime at issue, looking only to the nature and
seriousness of the crime as committed by the defendant. The crime is a Class C
crime, for such crimes, the law provides that a sentence may be imposed that
includes any amount of time from no term of incarceration up to a maximum of ) 5
five years' incarceration for each offense. Additionally, because the cnme
involves possession of sexually explicit materials depicting children under the age
of twelve, the Court, if it suspends any of the term of incarceration, may impose a
period of probation of up to six years, rather than the usual two-year period of
probation available for most Class C offenses. 17-A M.R.S. § 1202(1-A)(A)(3)
(2012).
Because the offense may be committed in so many different ways,
identifying the basic sentence for such a crime is difficult. There is no available
database indicating the range of sentences that have been imposed for this crime
within the State of Maine since the current prohibition on possession of sexually
explicit materials was enacted in 2004, P.L. 2003, ch. 711, § B-12. The individual
crimes here involve simple possession, on a computer, of the prohibited images; no
purchase, sale, creation, or distribution of the images; no evidence of others
viewing the images; no attempt to use the images to "groom" others for sexual
activity. Thus, the nature of each individual offense is among the least serious
ways that the offense may be committed, though the multiple offenses charged and
the multiple images involved will be aggravating factors to be considered.
There is some data regarding sentencing for such crimes in the federal
system, where prosecution for such offenses is subject to sentencing guidelines. In
the federal system, the most nearly analogous crime, 18 U.S.C. § 2252A(a)(5)(B) ) 6
(2012) (possessing or accessing child pornography involving child under twelve
years old with use of a computer) carries with it a guideline sentence of 41 to 51
months incarceration if the number of images is less than ten. See United States
Sentencing Guidelines § 2G2.2(a)(l), (b)(2), (b)(6). Notably, this guideline
sentence for possessing pictures is identical to the 41 to 51 months' imprisonment
specified for actually engaging in sexual contact with a child under twelve years.
See 18 U.S.C. § 2244(a)(5) (2012) (Abusive Sexual Contact) and Sentencing
Guidelines§§ 2A3.4(a)(3), (b)(l); 5Gl.l(c). 2
In fact, scholarly reviews indicate many recent examples of sentences
imposed for possession of pictures of children engaging in sexually explicit
conduct that were harsher than sentences imposed for actually sexually abusing
children.
Current sentencing practices for possessors of child pornography appear quite severe when viewed in isolation. And they begin to look completely disproportionate when viewed in relation to sentences for sexual abuse of children. That is because the modem practices have resulted in some defendants who possess child pornography receiving longer sentences than defendants who sexually abuse children. One recent study of federal sentencing practices documents that a typical possessor of child pornography will receive a significantly longer sentence under the Federal Sentencing Guidelines than a defendant who engages in repeated sex with a twelve-year-old girl. It is also a
2 Devining the application of the federal sentencing guidelines is not an exact science. A recent law review article indicates that possession of child pornography carries a mandatory minimum time of incarceration of five years pursuant to the federal sentencing guidelines. Carissa Byrne Hessick, Disentangling Child Pornography from Child Sex Abuse, 88 Wash. U. L. Rev. 853,857 (2011). _) 7
significantly longer sentence than the one imposed in a reported case from the Eighth Circuit where an offender paid to have a mother hold down her nine-year-old child while he raped the young girl twice a week for two years.
Carissa Byrne Hessick, Disentangling Child Pornography from Child Sex Abuse,
88 Wash. U. L. Rev. 853, 860-61 (2011) (citing United States v. Kane, 470 F.3d
1277, 1281-82 (8th Cir. 2006)). See also Melissa Hamilton, The Efficacy ofSevere
Child Pornography Sentencing: Empirical Validity or Political Rhetoric?, 22 Stan.
L.& Pol'y Rev., 545, 565 (2011) (noting guidelines viewed by judges as often
resulting "in harsher sentences for child pornography offenses (including
possession and receipt) than for raping a child.").
In United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010) the Second Circuit,
after reviewing several studies of sentencing patterns, observed in a possession of
sexually explicit materials case that:
adherence to the Guidelines results in virtually no distinction between the sentences for defendants like Dorvee, and the sentences for the most dangerous offenders who, for example, distribute child pornography for pecuniary gain and who fall in higher criminal history categories.
Id. 184. The Second Circuit further observed that application of the Guidelines in
child pornography cases leads to sentencing "irrationality," id. 187, that can "easily
generate unreasonable results." Id. 188.
) 8
This indicates that the federal sentencing structure is affected by an irrational
sentencing dichotomy that requires possession of a picture of a sex act with a child
to be punished more severely than committing a sex act with a child. No purpose
would be served by presuming that the irrational dichotomy of sentencing
mandates in the federal system should be transferred to the State system because
there happens to be more available data about sentencing practices for possession
of child pornography in the federal system.
This irrational dichotomy can exist in the federal system because the United
States Supreme Court has held that "the Eighth Amendment contains no
proportionality guarantee." Harmelin v. Michigan, 501 U.S. 957, 965 (1991).
Accordingly there is no requirement that sentences by federal courts be
proportionate in relation to the harm committed or in relation to sentencing
patterns for other crimes. 3
Similarly, there is no federal constitutional requirement that state court
sentences be proportionate. See Hessick, Disentangling Child Pornography . . . ,
88 Wash. U. L. Rev. at 856-57 (noting that because the Supreme Court has denied
proportionality review of length of sentence claims pursuant to the Eighth
Amendment, states can increase penalties for possessing child pornography
3 Although 18 U.S.C. § 3553(a) has been interpreted to impose a "substantive reasonableness" requirement on federal sentencing practices. United States v. Dorvee, 616 F.3d 174, 182-84 (2d Cir. 2010) . ) 9
without violating the U.S. Constitution). The Hessick article provides several
examples of irrational sentencing dichotomies that may apply comparing
possession of child pornography sentences to sentences for sexual assaults on
children. 88 Wash. U. L. Rev at 861-62. It cites one Arizona trial court that
imposed a 200 years sentence for possession of child pornography while imposing
a 22 month sentence for sexual contact with a young boy and a one-year sentence
for kidnap and sexual assault of a fourteen-year-old girl. Id. 862.
In its opinion holding that sentencing proportionality was not mandated by
the United States Constitution, the Harmelin Court noted that "[d]uring the 19th
century several States ratified constitutions that prohibited 'cruel and unusual,'
'cruel or unusual,' or simply 'cruel' punishments and required all punishments to
be proportioned to the offense," id., at 982. The Court then referenced six state
constitutional provisions, including the proportionality clause in the Maine
Constitution. Id. (referencing Me. Const., art. I. § 9 (1819)); see also State v.
Ward, 2011 ME 74, 117, 21 A.3d 1033 (noting the proportionality language in the
Maine Constitution).
The Maine Constitution requires that "all penalties and punishments shall be
proportioned to the offense." Me. Const. art I, § 9. Thus, unlike the federal
system, the Maine Constitution imposes a proportionality requirement on
sentencing. See State v. Stanislaw, 2013 ME 43, 11 26-29, 65 A.3d 1242. The ) 10
proportionality requirement effectively prohibits a sentencing practice under
which, all other things being equal, mere possession of a picture of a prohibited act
could result in a more severe sentence than commission of the prohibited act. The
proportionality requirement of article I, section 9, is reflected in the Maine
Criminal Code among the purposes of sentencing stated in 17-A M.R.S. § 1151(5)
(2012) ("To eliminate inequalities in sentences that are unrelated to legitimate
criminological goals.").
Without a broad range of representative sentencing data for comparable
cases within the State, setting the basic term of imprisonment for this crime
requires the Court to resort to determining the basic term of imprisonment by
reviewing the sentencing factors outlined in 17-A M.R.S. § 1151.
1. To prevent crime through the deterrent effect of sentences, the rehabilitation of convicted persons, and the restraint of convicted persons when required in the interest of public safety; 2. To encourage restitution in all cases in which the victim can be compensated and other purposes of sentencing can be appropriately served; 3. To minimize correctional experiences which serve to promote further criminality; 4. To give fair warning of the nature of the sentences that may be imposed on the conviction of a crime; 5. To eliminate inequalities in sentences that are unrelated to legitimate criminological goals; 6. To encourage differentiation among offenders with a view to a just individualization of sentences; 7. To promote the development of correctional programs which elicit the cooperation of convicted persons; and
) 11
8. To permit sentences that do not diminish the gravity of offenses ....
Of particular significance here is recognition that incarceration, whether it be
in State corrections facilities or county jails is expensive, costing the taxpayers
approximately $3400 a month to house each prisoner. A recent survey, reporting
other surveys, indicates that housing prisoners in northeastern and western states
averages over $40,000 per prisoner per year. David S. Abrams, The lmprisoner 's
Dilemma: A Cost-Benefit Approach to Incarceration, 98 Iowa L. Rev. 905, 946-47
(2013). There is no reason to believe that the cost of housing prisoners in Maine is
significantly different than the cost experience in other northeastern states.
We are told that State and county corrections facilities are overcrowded.
Thus, we are regularly urged to minimize incarceration to reduce cost and
overcrowding pressures, except for individuals who pose a threat to harm
themselves or society, or have demonstrated disregard for society's rules by
committing repeat offenses, or have committed violent or destructive acts, the
seriousness of which would be inappropriately minimized by a sentence of little or
no incarceration.
Looking at the factors identified in section 1151, in this case, Sapiel did not
pay for the images. He downloaded images from a source or sources that the
federal government apparently allows to continue in operation so that the receivers 12
of the images may be identified and prosecuted, while, apparently, the purveyors of
the images, or at least the source maintained by the purveyors of the images, is
allowed to continue to operate. Because Sapiel did not pay for the images, he in no
way aided or promoted the purveyors and creators of those images. He himself did
not create the images, and he viewed and kept them only on his computer. He did
not transmit them to anyone else. As such, he committed no harm that would
appear to require incarceration to protect himself or society from further crimes
while incurring the great cost that incarceration imposes on society and would
impose on Sapiel's family.
The basic sentence, of course, cannot consider an individual's particular
circumstances, those factors are to be considered at later stages of the sentencing
process. But in setting a number for the basic sentence, it is necessary to consider
the factors listed in 17-A M.R.S. § 1151. With those factors considered, the Court
determines that the appropriate basic sentence, before consideration of aggravating
and mitigating factors, for the crime of possession of sexually explicit materials
(Class C) would be a sentence of ninety days' incarceration. To put this number in
context, experience indicates that this basic sentence is higher than sentences
usually imposed for first offenses of simple assault, a crime of violence; furnishing
liquor to minors, a crime harmful to children; operating under the influence, a
crime dangerous to others; or criminal mischief, a crime of damaging property. ) 13
With the basic sentence indicated, the Court then must proceed to consider
aggravating and mitigating factors and the particular circumstances of the offender.
Considering mitigating factors, Sapiel has accepted responsibility for his actions.
Further, there is no indication that Sapiel has committed any crimes other than the
motor vehicle offenses noted above or that he has otherwise engaged m
inappropriate acts with children or been involved with creating, purveymg, or
benefiting from images of sex acts with children or child pornography.
For aggravating factors, there is the fact that Sapiel downloaded and
possessed many images, though the method for calculating the number of images
when videos are included is imprecise. While the number of images downloaded
may not be unusual for persons engaged in searches for and downloading of child
pornography on the internet, it is certainly more than possession of a single or a
few images transmitted to or from a cellphone in a moment of bad judgment.
Thus, the large number of images is an aggravating factor to consider in
determining the ultimate sentence.
Another aggravating factor is that Sapiel appears to have personality issues
that cause, or caused, him to seek to view these images on a more than occasional
basis before this crime was discovered and he began counseling for his issues.
This factor indicates a need for a sentence significant enough to give Sapiel
considerable incentive to continue his counseling and treatment and to avoid repeat ) 14
of the problems that brought him before the court today. Considering the large
number of images at issue, the State's recommended sixteen-year sentence is not
inappropriate.
The reports from Mr. Sapiel' s treatment providers indicate that he needs a
long period of treatment and rehabilitation, and incentives to comply with his
treatment program, his conditions of probation, and his obligations to society to
avoid the problems that landed him here today. The sixteen-year sentence can
provide those incentives, as Mr. Sapiel will know that any failures to follow
treatment and probation obligations, any repeats of the acts that brought us here
today, or any new criminal conduct will almost certainly result in his serving some
or all of the sixteen-year sentence, plus, perhaps additional time if new crimes are
proven. Thus, the sixteen-year underlying sentence is accepted as the beginning
point for analysis.
With the underlying sentence established, the Court must consider what
portion of that underlying sentence should be suspended considering the various
aggravating and mitigating factors in the case and the sentencing criteria addressed
in 17-A M.R.S. § 1151. Serving the full term of the six-year recommended cap
would cost the State approximately $240,000 based on the studies cited above.
That sentence and its resulting cost would be imposed without reservation if Mr.
Sapiel had a prior record of similar offenses, or of multiple acts of sexual abuse of ) 15
children, or of violent felonies. That sentence would be seriously considered if,
looking to the future, it appeared that Mr. Sapiel posed a significant risk of
reoffending, or abusing children, or harming others while living in the community
on probation supervision.
But Mr. Sapiel has no such prior record, and he poses no such risk. Except
for the motor vehicle offenses, he presents, essentially, as a first offender. He has
no history of abusing or presenting a risk to children, no history of violence, no
history, except for this case, of repeated disregard for the law or the rules for living
in decent society. He paid no money for the pictures he downloaded, providing no
incentive or reward to the creators or the purveyors who victimized children to
create child pornography. He simply downloaded what was available to him from
purveyors of this material who the federal government monitored to support
prosecution of others like Sapiel. When Sapiel received these pictures he did not
show or transmit them to others, he kept them on his computer solely for his own
viewing. With all of those factors considered, the Court determines that a time of
incarceration of one year should be imposed.
That one year's incarceration emphasizes the seriousness of the conduct in
which Mr. Sapiel engaged. It also recognizes that the limited threat to the safety
and well being of the community caused by Mr. Sapiel 's crimes does not justify a
longer period of incarceration if our constitutional obligation of sentencing ) 16
proportionate to the relative harm caused by the crime is to be achieved and if we
are to avoid costs that would otherwise be imposed on the community by
unnecessarily lengthy incarceration.
The sixteen years' potential incarceration hanging over Mr. Sapiel's head,
along with the twelve years during which he will be under State supervision on
probation after his release, provides significant protection to the community and
sufficient deterrence to Mr. Sapiel from committing any further crimes or failing to
comply with his treatment obligations or other terms of his probation.
Accordingly, the overall sentence that will be imposed in this matter will be
sixteen years to the Department of Corrections, with all but one year suspended, to
be followed by a period of twelve years of probation. The conditions of probation
shall include the standard conditions of probation plus the following special
conditions:
No contact with his daughter except when another adult is present in the area
where the contact occurs and as approved by his probation officer as in accordance
with his treatment plan.
No contact with any other child under the age of 16 of family or friends
except when another adult is present in the area where the contact occurs.
No contact with any unrelated child under the age of 16, except as allowed
in paragraphs # 1 and # 2 above. ) 17
"Contact" for the purposes of these probation conditions includes in person
contact, contact by mail and by telephone or smartphone, and contact through
electronic media including the internet, email, and social media.
Continue in treatment, to the satisfaction of his probation officer, for the
issues and conditions indicated in the attachment to the sentencing memo
submitted by the defense.
No access to the internet or social media sites except through computers
and/or smartphones identified to and approved by his probation officer. On
computers and smartphones approved for use, the log or history of websites
accessed shall be operational and shall not have website access logs deleted except
with approval of a probation officer after an inspection by the probation office.
Any indicated deletion of items from the website log or history shall be considered
a violation of these probation conditions.
No possession, viewing, accessing, or downloading of any pictures, videos
or other depictions of persons who are or who appear to be under the age of 18
displaying their genitals or engaging in any sexual activity or sexual contact.
Defendant to accept random, unannounced searches of his home, and any
computers, cell-phones or smartphones, and motor vehicles, trailers, campers or
boats to which he has or has had access for purpose of determining if any of the
terms and conditions of his probation have been violated. ) 18
The parties have agreed that the Court may use consecutive sentencing to
achieve the sentence in this case. Therefore, for these separate and serious crimes,
the underlying sentence will be achieved by imposing consecutive sentences as
follows.
On Count 3, a sentence of two years' incarceration with all but one year
suspended to be followed by a period of probation of two years with the conditions
as indicated.
On Count 4, a sentence of two years, consecutive to the sentence imposed on
Count 3, all suspended, to be followed by a period of probation of two years with
conditions as indicated.
On Count 5, a sentence of two years, consecutive to the sentence imposed on
Count 4, all suspended, to be followed by a period of probation of two years, with
On Count 6, a sentence of two years, consecutive to the sentence imposed on
Count 5, all suspended, to be followed by a period of probation of two years with
On Count 7, a sentence of three years, consecutive to the sentence imposed
on Count 6, all suspended, to be followed by a period of probation of two years
with conditions as indicated. 19
On Counts 8, 9, 10, 11, 14, 15, 16, 17, 18, 19, 20, 21, 22, and 23, concurrent
sentences of five years, each consecutive to the sentence imposed on Count 7, all
suspended, to be followed by a period of probation of two years with conditions as
indicated.
This sentencing is intended to achieve an overall sentence of 16 years to the
Department of Corrections, with all but one year suspended, followed by a period
of probation of 12 years, with the standard conditions of probation and the
additional conditions indicated in this order. The sentencing order is structured so
that, near the end of the probationary period, a substantial amount of time remains
to be served if any of the probation conditions are violated.
As part of this sentence, Sapiel is ordered to register a sex offender for a
period of ten years. In its discretion, the Court declines to increase the ten year
registration mandate to a lifetime registration mandate as is possible pursuant to
34-A M.R.S. § l 1203(8)(B)(2). 20
Because the underlying sentence is for a term of more than one year, Mr.
Sapiel has the right to appeal the sentence if he wishes. Any appeal must be filed
within twenty-one days of the docketing of this sentencing order.
The Clerk is authorized to incorporate this order by reference into the
docket. \A)~ DATED: ober 23, 2013 /S/ Donald G. Alexander Justice, Superior Court