State v. Downs

2007 ME 41, 916 A.2d 210, 2007 Me. LEXIS 41

• Court: Supreme Judicial Court of Maine
• Decided: March 2, 2007
• Status: Published

Opinions

Majority: DANA, CALKINS, LEVY, and SILVER, JJ.

Dissent: SAUFLEY, C.J., and CLIFFORD, and ALEXANDER, JJ.

Dissent: ALEXANDER, J.

DANA, J.

[¶ 1] Eugene V. Downs Jr. appeals the sentence imposed by the Superior Court (Somerset County, Mills, J.), contending that the court erred (1) in applying the three-step sentencing analysis codified at 17-A M.R.S. § 1252-C (2006); (2) in imposing consecutive sentences; and (3) in finding that Downs has the ability to pay the imposed amount of restitution. We take this occasion to discuss how a court complies with the statute while sentencing a defendant who has been on a crime spree and conclude that the trial court erred in applying the first step of the sentencing analysis and remand for resentencing.

I. CASE HISTORY

[¶ 2] Between September 2002 and January 2004, Downs, on thirty-eight occasions, committed a burglary and theft. With one or two other individuals, Downs victimized unoccupied residences (seasonal camps) and businesses, including locations where he had previously worked. He victimized some locations multiple times. Downs’s criminal activity was apparently fueled by, and served to maintain, his drug and alcohol use. Downs and the two accomplices were identified as a result of a law enforcement investigation. He subsequently confessed to his crimes and cooperated in the ongoing investigation.

[¶3] During the Rule 11 proceeding, Downs pleaded guilty to seventy-six counts of burglary and theft,¹ and the court reviewed the maximum sentences allowed under the law for Class B and C crimes and indicated the possibility of lesser sentences. There was no plea agreement.

[¶ 4] At sentencing, the court imposed:

• On Count 3 (Class B burglary), a sentence of ten years, all but six years suspended and four years probation;

• On Count 11 (Class B burglary), ten years, all suspended, and four years probation, consecutive to the sentence imposed on Count 3; and

• On Count 40 (Class B theft, theft of a firearm), ten years, all suspended and four years probation, consecutive to the sentence imposed on Count ll.²

[¶ 5] In sum, Downs, then twenty-five years old, was sentenced to an overall term of thirty years, all but six suspended, and twelve years probation. As one of the conditions of probation, Downs was ordered to pay restitution of $57,173.66 within the first eleven years of his probationary period. Downs had no prior criminal record. He attended high school through the eleventh grade and had a sporadic work history.

II. DISCUSSION

[¶ 6] We have not previously opined on the appropriate sentencing analysis when the defendant is convicted of multiple crimes resulting from what appears to be a crime spree. Nor has the Legislature enacted any statutes relating to the sentencing analysis for crime sprees. The Legislature has mandated the process to be employed generally for sentencing, which is found at 17-A M.R.S. § 1252-C and is known as the Hewey analysis. See State v. Hewey, 622 A.2d 1151 (Me.1993). We conclude that the three-step Hewey analysis is the process to be followed whether the court is sentencing a defendant for a single offense, several offenses or, as here, for multiple crimes as part of a crime spree. In the first step of the sentencing analysis, the court determines a basic period of incarceration “by considering the particular nature and seriousness of the offense as committed by - the offender.” 17-A M.R.S. § 1252-C(1); Hewey, 622 A.2d at 1154 (stating this “determination is made solely by reference to the offender’s criminal conduct in committing the crime, that is, ‘by considering the particular nature and seriousness of the offense without regard to the circumstances of the offender.’ ”).

[¶ 7] “In evaluating the nature and seriousness of the offense we place the criminal conduct on a continuum for each type of offense to determine which act justifies the imposition of the most extreme punishment.” State v. Corbett, 618 A.2d 222, 224 (Me.1992) (internal quotations omitted); State v. Berube, 1997 ME 165, ¶ 3, 698 A.2d 509, 511 (“[T]he court is to measure the defendant’s conduct ‘on a scale of seriousness against all possible means of committing the crime in order to determine which acts deserve the most punishment.’ ”). We review the sentencing court’s determination of the basic period of incarceration for misapplication of principle. Hewey, 622 A.2d at 1155.

[¶ 8] The maximum sentences that may be imposed for a Class B offense and a Class C offense are ten years and five years respectively. 17-A M.R.S. § 1252(2)(B), (C) (2006). The basic sentences imposed on Downs for the Class B (Counts 3,11, and 40) and Class C offenses were the maximum sentences available.

[¶ 9] At the first step of the sentencing analysis, the court stated:

Based on the Hewey analysis, ahd also the statutory analysis under 1252-C, the basic period of incarceration in this case, no question about it in my mind on the Class B offenses, is ten years, just based on — ... I understand the argument— and I’ll get to this in a moment — about no prior record, but he made basically a career for sixteen months out of ... committing criminal offenses, ... it’s almost disingenuous to say he had no pri- or record when this sheer amount of criminal activity went on for this amount of time.

I’m also considering the number of burglaries, the period of time that this took place, that he burglarized places that apparently he had been employed in in the past, that he burglarized places more than one time.... So, when you come to court on seventy-six counts involving burglaries, thefts, it’s — I think it’s a serious matter, and it’s for the reasons I just stated I’d put the basic period of incarceration at ten years on the Class B’s.

[¶ 10] The court acknowledged that the Class B burglaries resulted from the burglary of unoccupied seasonal camps, but concluded that such camps are nonetheless residences, stating that:

The fact that the people, fortunately, were not there when these burglaries took place, I expect is something that these defendants thought about and knew that they could probably get away with it because these places aren’t occupied .... I expect its part of the modus operandi, so to speak, of these defendants.

[¶ 11] Although the court provided its reasoning in imposing the maximum basic sentence for the Class B offenses, the court failed to consider the manner in which Downs committed the Class B burglaries and thefts, or the Class C offenses,³ on a scale of seriousness against all possible means of committing the crimes. See, e.g., Corbett, 618 A.2d at 224 (determining that, in the hierarchy of drug trafficking, the crime and the manner in which it was committed by the defendant, a street runner selling small amounts of drugs, did not justify the court’s imposition of the maximum basic sentence). We do not minimize the seriousness of Downs’s crimes. Nonetheless, we find that the nature and seriousness of Downs’s Class B burglary and theft offenses (Counts 3, 11, and 40, the counts selected by the court as controlling sentences) do not justify the imposition of the maximum basic sentence. "When placed on a continuum of means by which burglary and theft crimes can be committed, the fact that Downs did not, for instance, use the threat of force against individuals and that he intentionally chose to burglarize residences and workplaces only at times when individuals or families would not be confronted, indicates that these crimes must be considered less serious than the most serious ways of committing these offenses.

[¶ 12] The court also erred when it took into consideration the number of crimes committed when setting the basic sentences for individual Class B counts. The basic sentence for an offense is to be determined solely by considering the particular nature and seriousness of that specific offense as committed by the offender. 17-A M.R.S. § 1252-C(1). In a case involving multiple offenses of the same class, such as this, it would be appropriate, as occurred in this case, for the court to choose a representative or primary offense for analysis in the first step of the Hewey process. Factors extrinsic to the particular nature and seriousness of the specific offense at issue, such as the number of other crimes committed, are generally not relevant considerations at this first step in the analysis, although it may be relevant if the fact that the crime is part of a multiplicity of offenses bears on the degree of planning undertaken to commit the crime. See State v. Pfeil, 1998 ME 245, ¶ 15, 720 A.2d 573, 577. The fact that an offender has committed multiple offenses is to be considered in the second step. It is an aggravating factor, and as with other aggravating and mitigating factors, it is relevant in the analysis of the second step. It is in the second Hewey step that the court can increase the basic sentence because of the number of other offenses.

[¶ 13] Here, the sentencing court did not treat the fact that Downs had committed numerous offenses as bearing on the degree of planning he undertook to commit one of his burglaries or thefts, but instead considered the numerous offenses as establishing that each was so serious as to support the longest possible sentence, ten years, as the basic sentence for the representative Class B offenses. We find, therefore, that the sentencing court misapplied principle in the first step of the sentencing analysis by failing to analyze properly the particular nature and seriousness of the offense being sentenced and by considering other crimes when determining the basic sentence for a particular crime.

[¶ 14] Because we vacate Downs’s entire sentence and remand for resentencing, we do not decide: (1) whether the final sentence is excessive;⁴ (2) whether Downs met his burden of demonstrating that he was not capable of paying the amount of restitution imposed by the court; (3) the other challenges to the court’s application of the Hewey analysis; and (4) whether 17-A M.R.S. § 1256(2) (2006) authorizes a sentencing court to employ numerous consecutive sentences as a device for creating a probation period long enough for a defendant to pay an otherwise impossibly large amount of restitution.⁵

The entry is:

Sentence vacated and remanded for re-sentencing.

1 . The counts are as currently codified: burglary of a residence, Class B, 17-A M.R.S. § 401 (2006) (16 counts); theft of a firearm, Class B, 17-A M.R.S. § 353 (2006) (2 counts); burglary of a motor vehicle, Class C, 17-A M.R.S. § 405 (2006) (1 count); burglary, Class C, 17-A M.R.S. § 401 (21 counts); theft, Class C, 17-A M.R.S. § 353 (9 counts); theft, Class D, 17-A M.R.S. § 353 (7 counts); and theft, Class E, 17-A M.R.S. § 353 (20 counts).

2 . On the remaining Class B counts, the court sentenced Downs to six years, to be served concurrently with Count 3. On the Class C counts, the court sentenced him to five years, concurrent with the sentence on Count 3, all but two years suspended and two years probation. On the Class D counts, the court sentenced Downs to nine months, concurrent with the sentence imposed on Count 3. On the Class E offenses, the court sentenced him to five months, concurrent with the sentence on Count 3.

3 . The court noted with respect to the Class C offenses only that the three-step sentencing analysis is "essentially the same” except that the maximum sentence for a Class C offense is five years.

4 . When the court resentences the defendant, it should avoid a technical error committed in the original sentencing. A court may not sentence a defendant to consecutive sentences for crimes arising out of the same criminal episode when one crime consists only of preparation to commit, or facilitation of, the other crime. 17-A M.R.S. § 1256(3)(B) (2006). We review the legality of a sentence de novo. State v. Soucy, 2006 ME 8, ¶ 11, 890 A.2d 719, 723.

In this case, Count 39 (burglary, Class C) occurred in the same criminal episode as Count 40 (theft of a firearm, Class B). Pursuant to section 1256(3)(B), sentences imposed on these two counts cannot be consecutive because the burglary offense of Count 39 was committed in order to facilitate the theft offense of Count 40. In effect, however, the sentence imposed on Count 40 was imposed consecutively with the sentence imposed on Count 39 rather than concurrently. This technical error also occurred with respect to the sentences imposed on Counts 11 and 12.

5 . The sentencing court appeared to indicate that one of its reasons for imposing a lengthy period of probation was to give Downs time to pay the ordered restitution:

I’m going to also impose consecutive sentences. The State recommends it, the statute permits it .... These offenses are for offenses based on different criminal conduct, different episodes in terms of different dates for sixteen months, and, also, subsection D, for ... serious criminal conduct involved I think allows me to impose consecutive sentences, and I'm going to do that also to ensure that restitution is made to the extent Mr. Downs has the ability to do that within the period of time he has on probation.