State v. Downs

2009 ME 3, 962 A.2d 950, 2009 Me. LEXIS 5
CourtSupreme Judicial Court of Maine
DecidedJanuary 13, 2009
StatusPublished
Cited by23 cases

This text of 2009 ME 3 (State v. Downs) is published on Counsel Stack Legal Research, covering Supreme Judicial 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 v. Downs, 2009 ME 3, 962 A.2d 950, 2009 Me. LEXIS 5 (Me. 2009).

Opinions

LEVY, J.

[¶ 1] Eugene Downs appeals the sentence imposed by the Superior Court (Somerset County, Mills, J.) contending that the court erred in applying the three steps of the Hewey sentencing analysis codified at 17-A M.R.S. § 1252-C (2008), that the court erred in imposing consecutive sentences, and that his overall sentence is excessive. We affirm the sentence imposed by the Superior Court and clarify how the Hewey sentencing analysis should be applied in sentencing multiple crimes arising from a crime spree.

I. BACKGROUND

[¶2] This is the second time Downs has appealed his sentence. We vacated his first sentence and remanded it for resen-tencing. State v. Downs, 2007 ME 41, 916 A.2d 210 (Downs I).

A. Downs’s Crimes and Initial Sentence

[¶ 3] Between September 2002 and January 2004, Downs committed thirty-eight burglaries with the help of at least one other individual. Each burglary involved an accompanying theft. The burglaries affected thirty-one different victims, including fifteen businesses and sixteen unoccupied seasonal camps. Downs burglarized several victims multiple times, and he knew several of the victims because they had previously employed him. The burglaries and thefts varied in severity. On some occasions, Downs pried open doors and took only items such as flashlights and tools. On other occasions he significantly damaged buildings, ransacked their interiors, and stole firearms.

[¶ 4] Prior to September 2002, Downs had no criminal record. He began committing burglaries at the same time that he began to abuse drugs and alcohol. In fact, Downs was intoxicated during every burglary. Downs’s other motives included inflicting “payback” and breaking in simply to have “something to do.”

[¶ 5] Downs, who was twenty-three years old when he began his burglaries, did not complete high school, leaving after the eleventh grade. At one time he ran a small engine repair business, and he also worked for short periods at various manufacturing and lumber companies. Downs suffers from an anxiety disorder that he alleges interferes with his ability to maintain employment.

[¶ 6] Downs was indicted on seventy-six counts of burglary and theft.1 He sub[953]*953sequently pleaded guilty to all charges with no agreement from the District Attorney’s office or from the court as to a likely sentence. At the conclusion of Downs’s sentencing hearing, the court selected three counts and performed a Hewey sentencing analysis as to each. See State v. Hewey, 622 A.2d 1151 (Me.1993). The resulting aggregate sentence was as follows: (1) Count 3, Class B burglary, ten years with all but six years suspended and four years of probation; (2) Count 11, Class B burglary, ten years all suspended with four years of probation, to be served consecutively to Count 3; (3) Count 40, Class B theft, ten years all suspended with four years of probation, to be served consecutively to Count 11. The remaining seventy-three counts, which did not receive individual Hewey analyses, all ran concurrently. Under this sentence, Downs would serve six years (reduced by good time credits if he behaved in prison), and he would be on probation for twelve years. In addition, the court ordered Downs to pay $57,173 in restitution within the first eleven years of probation.

B. Downs I

[¶ 7] On Downs’s appeal of his original sentence, we stated that the Hewey sentencing analysis applies “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.” Downs I, 2007 ME 41, ¶ 6, 916 A.2d at 212. We therefore confirmed that, in the first stage of the Hewey analysis, the sentencing court is to consider the “particular nature and seriousness of the offense as committed by the offender.” Id. (quotation marks omitted); 17-A M.R.S. § 1252-C(l); see Hewey, 622 A.2d at 1154.

[¶8] We observed that in the first stage analysis of the basic sentence for the three primary burglary counts, the sentencing court considered, among other things, that Downs had committed a total of seventy-six counts of burglary and theft as a rationale for arriving at a ten-year basic sentence, the maximum possible. Downs I, 2007 ME 41, ¶ 9, 916 A.2d at 213. The sentencing court’s first stage analysis did not focus on the “manner in which Downs committed the Class B burglaries and thefts.” Id. ¶ 11, 916 A.2d at 213. We identified two errors with this approach.

[¶ 9] First, we found 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) [did] not justify the imposition of the maximum basic sentence.” Id. Second, we concluded that the court erred when it considered the total number of burglaries and thefts as relevant to the first stage of the Hewey analysis. Id. ¶ 12, 916 A.2d at 213. “In a case involving multiple offenses ... it would be appropriate ... for the court to choose a representative or primary offense for analysis in the first step of the Hewey process.” Id. ¶ 12, 916 A.2d at 213-14. However, we emphasized that “[t]he fact that an offender has committed multiple offenses is to be considered in the second step ... [as] an aggravating factor.” Id. ¶ 12, 916 A.2d at 214. We did note that a multiplicity of offenses could be relevant in the first stage if it “bears on the degree of planning undertaken to commit the crime,” citing State v. Pfeil, 1998 ME 245, ¶ 15, 720 A.2d 573, 577. Id.

[¶ 10] On remand, both the State and Downs submitted sentencing memoranda. The State recommended a sentence of [954]*954thirty years with all but six years suspended and twelve years of probation. Downs recommended a sentence of ten and a half years with all but three years suspended and eight years of probation. Both proposed in their memoranda that the court establish an aggregate sentence by using selected representative counts. The State urged the court to divide the crime spree into four episodes, select the most serious burglary from each episode, and tailor a Hewey analysis as to each of the four counts. Downs proposed that the court select the most serious Class B burglary, Class C burglary, and Class B theft, and tailor a Hewey analysis as to each of the three counts.

[¶ 11] The court did not adopt either of the aggregate sentencing approaches proposed by Downs or the State. Instead, the court conducted a separate Hewey analysis for each of the seventy-six counts and arrived at a sentence imposing an identical period of incarceration and probation as the previous sentence. The court’s new sentence was as follows: (1) Counts 59 and 60, Class B burglary and Class B theft, ten years with all but six years suspended and four years of probation, to be served concurrently; (2) Count 65, Class B burglary, ten years all suspended with four years of probation, to be served consecutively to Counts 59 and 60; (3) Count 75, Class B burglary, ten years all suspended with four years of probation, to be served consecutively to Count 65. The court sentenced the remaining seventy-two counts to run concurrently.

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Bluebook (online)
2009 ME 3, 962 A.2d 950, 2009 Me. LEXIS 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-downs-me-2009.